Version: November 2022
AGREEMENT —AMENDMENT NO. 1 TO
AGREEMENT FOR PROFESSIONAL SERVICES FOR ENVIRONMENTAL CONSULTANTS/CONTRACTORS
BETWEEN
HARRIS AND ASSOCIATES AND CITY OF SALINAS
This Amendment No. 1 to the Agreement for Professional Services (the “Amendment”) is entered into this 8th day of August 2023, by and between the City of Salinas (the “City”) and Harris and Associates, (the “Consultant”).
City and Consultant may be individually referred to herein as a “Party” and collectively the City and Consultant may be referred to as the “Parties.”
RECITALS
WHEREAS, the City and Consultant first entered into an Agreement for Professional Services for Environmental Consultants/Contractors effective January 18th, 2022, pursuant to which Consultant agreed to act as and provide certain services to the City for compensation (the “Agreement”); and WHEREAS, the City and Consultant desire to amend the Agreement to reflect a term extension of one year, include additional scope of services provided by Consultant, and to reflect the revised compensation to be paid to Consultant.
NOW, THEREFORE, in mutual consideration of the terms and conditions set forth below, the Parties agree as follows:
TERMS
l. The Agreement, 1. Scope of Service section, is amended and restated in its entirety as follows:
1. Scope of Service. The project contemplated and the scope of Consultant’s services are described in Exhibits B and B1, attached hereto and incorporated herein by reference.
II. The Agreement, 2. Term; Completion Schedule section, is amended and rested in its entirety as follows:
2. Term; Completion Schedule. This Agreement shall commence on January 18, 2022, and shall terminate on December 31, 2024, unless extended in writing by either party upon (30) days written notice. This Agreement may be extended only upon mutual written consent of the parties, and may be terminated only pursuant to the terms of this Agreement.
III. The Agreement, 3. Compensation section, is amended and restated in its entirety as follows:
3. Compensation. City hereby agrees to pay Consultant for services rendered the City pursuant to this Agreement on a time and materials basis according to the rates of compensation set forth in Exhibits B, and B1. The total amount of compensation to be paid under this Agreement shall not exceed three hundred sixty-three thousand eight hundred eighteen dollars ($363,818).
IV. All other covenants, terms, and conditions set forth in the Agreement and not amended by this Amendment shall remain in full force and effect as if fully set forth herein.
Version: November 2022
IN WITNESS WHEREOF, the undersigned, as authorized representatives of the City and Consultant have entered into this Agreement as of the date first written above.
CITY OF SALINAS
___________________________________
Steven S. Carrigan, City Manager
APPROVED AS TO FORM:
___________________________________
□ Christopher A. Callihan, City Attorney
□ Rhonda Combs, Assistant City Attorney
HARRIS AND ASSOCIATES
____________________________________
Frank Lopez
Principal-in-Charge, Harris and Associates, Inc.
Enviro. Prof. Services Agreement v. May 2019 Page 12 of 14 Harris and Associates, Inc.
January 2022
Exhibit B
[Scope of Service; Compensation]
Scope of Services
The Harris team shall provide preliminary design and final design services for the following project elements with the following features and specifications:
TASK 1 – PROJECT MANAGEMENT
Project management functions will include supervising, coordinating, and managing the Harris team; monitoring the schedule and budget; and verifying conformance with applicable standards. A brief progress report will accompany each monthly invoice. It will discuss budget status; schedule, highlighting critical path elements of the project; issues resolved and unresolved; and anticipated next steps.
TASK 2 – PRELIMINARY DESIGN
Kick-off meeting will be convened with the City as soon the contract is awarded to Harris. Afterwards, Harris team will gather and review existing background information about the project that is pertinent to the development of the design alternatives. The team will perform a site assessment at the project site and recommend the design for rehabilitating the IWWPS in tandem with the overall evaluation of the IWWPS structure (structural, geotechnical, concrete/steel condition assessment). Based on the results of documents evaluation, field investigation, structural and geotechnical investigations, and condition assessment of the concrete and steel of the wet well and dry well, Harris team will recommend improvements to the previously stated work scopes for the City’s consideration.
TASK 3 – FINAL DESIGN SERVICES
Harris team will prepare 90%, 95%, and final submittal packages. Each submittal package shall include technical specifications, drawings, cost estimate, and construction schedule. The 95% and final submittals will include applicable City’s review comments on the 90% and 95% design submittals respectively.
TASK 4 – BID PERIOD ASSISTANCE
Harris team will answer bidders’ questions and provide clarifications to the bid documents during the construction process and attend the pre-bid meeting. Harris’s subconsultant TJCAA will provide Structural and EI&C support.
TASK 5 – DESIGN SERVICES DURING CONSTRUCTION
Harris team will answer contractors’ questions and provide clarifications to the bid documents during the construction process and will prepare record drawings, incorporating changes made during construction as marked by the resident engineer and contractor.
TASK 6 – GEOTECHNICAL
Cornerstone Earth Group (Subconsultant) will provide geotechnical engineering services.
TASK 7 – CONDITION ASSESSMENT OF CONCRETE AND STEEL WET WELL AND DRY WELL OF
INDUSTRIAL WASTEWATER PUMP STATION
V&A (subconsultant) will visually assess accessible surfaces of concrete and metal surfaces; use digital photographs to document the conditions and capture corrosion observations of the concrete and metal surfaces and the condition of coatings. V&A will use Surface penetrating radar (SPR) to measure concrete thickness and Ultrasonic testing (UT) to measure steel thickness of dry well structure and metal piping.
Enviro. Prof. Services Agreement v. May 2019 Page 13 of 14 Harris and Associates, Inc.
January 2022
Assumptions on which cost proposal is based:
General:
1. Hours for individual tasks are an estimate; the total hours for the project takes precedence.
2. Hours and fee may be renegotiated if the project is delayed by factors beyond Harris' control.
3. The number of budgeted meetings is indicated on the spreadsheet.
4. City comments to be presented to Harris in one consolidated set of marked-up documents and/or letter form.
5. Redesign required due to changes made by Agency after 90% design approval are subject to additional fee to Harris & Associates.
6. City to provide permissions to enter private property for Harris and Subs.
7. City or provide.
Mechanical/Civil:
8. IWWPS improvements will double the system capacity and be designed transport the peak flow to the end of the force main. No hydraulic modeling will be performed.
9. Level of effort assumes that City has existing flow meter readings for the IWWPS and curve for the existing pumps.
10. Level of effort assumes that the existing IWWPS can be rehabilitated (not full replacement) Structural:
11. Design will comply with requirements of the 2019 California Building Code
12. Confined space support services to be provided by others.
13. Special foundations systems (e.g., piers/piles) are not required and are not included in the level of effort.
14. Design calculations will be provided with the Bid Documents.
15. Level of effort assumes that the existing IWWPS can be rehabilitated (not full replacement) Geotechnical:
16. Level of effort assumes the site is accessible to a rubber-tired, truck-mounted drill rig equipment.
17. Encroachment permits will be issued by the City of Salinas free of charge.
18. Traffic control will not be needed for the boring location.
19. Drummed soil will be analytically tested and disposed of in a non-hazardous disposal facility. The drums from the proposed boring will be temporarily stored at City approved facility and will be off hauled with one mobilization once test results are completed.
20. Some disturbances to the ground surface may occur as a result of accessing the desired locations of subsurface exploration. Although proper care will be taken to limit the extent of such occurrence s, they cannot be avoided, and this level of effort excludes any costs to re-grade disturbed areas.
21. Level of effort does not include geotechnical observation and testing services during construction.
Electrical, Instrumentations and Controls:
22. "The existing PG&E service to the pump station has reached the end of its useful life and will be replaced under this project. The new service will be sized to support the increase capacity of the pump station as required per the RFP. New service will either be 240V 3 phase or 480V, 3 phase per PG&E criteria."
23. Site assessment of the existing pump station electrical components will not be required. Replacement of all the pump station existing electrical infrastructure will be required.
24. Wet well and surrounding area assumed Class 1, Div 1 per NFPA 820. Drywell and surrounding area assumed Class 1, Div Enviro. Prof. Services Agreement v. May 2019 Page 14 of 14 Harris and Associates, Inc.
January 2022
2 per NFPA 820. All new electrical distribution and motor control equipment to be located outside or in otherwise unclassified areas with suitable conduit sealing or barriers as required by the NEC. Addition of ventilation to declassify existing areas subject to classification per NFPA 820 is not included.
25. Existing site lighting in the vicinity of the lift station is adequate; new exterior lighting systems will not be required.
26. Existing site lighting in the vicinity of the lift station is adequate; new exterior lighting systems will not be required.
27. Provide new plug-in emergency power receptacle and MTS for portable generator. City to provide preferred receptacle configuration for portable generator connection.
28. Normal pump control assumed based on modular pump controller based on submersible, pressure-based level transmitter (4- 20mA). Pump control schematic will include independent float and relay-based backup controls. Panel fabrication specifications will be provided based on UL 508 criteria and City standard control specifications if available. Intrinsically safe wiring and components will be used for devices as applicable.
29. Provide remote monitoring in accordance with existing City SCADA and telemetry systems. Existing station remote monitoring is assumed in place and will be modified to incorporate the new pump station design characteristics.
30. Provide additional 120V distribution for drywell lighting, receptacles, sump pump, ventilation, and other auxiliary equipment.
31. P&IDs are not required
PIC PM PE QA/QC
$300 $280 $150 $280
1a 12 40 52 $14,800 $0 $14,800
2a 2 12 2 16 $4,520 $3,500 $3,850 $8,370
2b 2 12 8 22 $5,160 $4,750 $5,225 $10,385
2c Hydraulic Analysis320 2 22 $6,160 $0 $6,160
2d Site Survey (w/Easement Research)41 8 16 25 $4,940 $5,630 $6,193 $11,133 2d Corrosion Protection Assessment51 4 5 $1,420 $2,356 $2,592 $4,012 3a Final Design (90%, 95%, and 100% PSE)68 24 64 6 102 $20,400 $13,420 $14,762 $35,162 5a Additional ESDC (for generator)74 16 20 $5,680 $3,280 $3,608 $9,288 7a Geotech (Additional Cost of Drill Rig)8$0 $2,520 $2,772 $2,772 18 96 88 10 0 212 0 $63,080 $20,200 $4,750 $2,520 $5,630 $2,356 $39,002 $102,082 Legend: Subconsultants
PIC Principal-In-Charge Clipper Controls
PM Project Manager V&A
PE Project Engineer Cornerstone
QA/QA Quality Assurance/Quality Control TJC & Associates Calvada
Notes for Additioanl Work/Out of Scope Work
0. Additional effort required for coorinating with additional subs and longer duration of project (schedule pushed ~
1. Additional effort for inclusion of Generator requirements and cost within the BOD Report
2. Additional Flow Monitoring (outside of original scope)
3. Additional Hydraulic Analysis, (outside of original scope)
4. Site survey showing existing easements (outside of original scope)
5. Corrosion Protection Assessment (outside of original scope)
6. Additoinal effort required for including permanent standby generator and design of generator pad, and new valve vault structure
7. Additional Engineering Services During Construction for anticipated longer duration coordinating with contractor to install permanent standby generator
8. Additoinal cost of geotechnical drill rig due to delay in schedule
9. Includes 10% Markup for sub-consultant fees
Preliminary Design (Addition of Generator to BOD)1
Cornerston
e (Geotech)
Calvada
(Survey)
Clipper Controls
(flow monitor)
Sub Hours
Subconsultants Cost
TJC
(Elec/Struct) V&A
Total =
Credits from Original Scope/Fee
Flow Monitoring (included site visit)2
Project Management0
Task Harris Hours Harris Cost Total Cost
ODC Total(9) Task Description
Exhibit B1, Amendment No. 1 Scope of Work
City of Salinas
Legislation Text
200 Lincoln Ave., Salinas,
CA 93901
www.cityofsalinas.org
File #: ID#23-479, Version: 1
Amendment to Professional Services Agreement with Wallace Group for the Sanitary Sewer Spot Repairs and Maintenance Repairs
Approve a Resolution approving an Amendment to the Professional Services Agreement in the amount of $273,200 between the City of Salinas and Wallace Group for the Sanitary Sewer Spot Repairs and Maintenance Repairs project and approving a transfer of $173,200 from the Capital Outlays Improvements balance to the Outside Services Other Professional Services balance of this Capital Improvement Project (CIP 9742).
City of Salinas Page 1 of 1 Printed on 8/2/2023
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CITY OF SALINAS
COUNCIL STAFF REPORT
DATE: AUGUST 8, 2023
DEPARTMENT: PUBLIC WORKS
FROM: DAVID JACOBS, DIRECTOR
BY: BRIAN FRUS, SENIOR ENGINEER
TITLE: AMENDMENT TO THE PROFESSIONAL SERVICES
AGREEMENT BETWEEN WALLACE GROUP AND THE CITY OF
SALINAS FOR THE SANITARY SEWER SPOT REPAIRS AND
MAINTENANCE REPAIRS
RECOMMENDED MOTION:
A motion to approve a Resolution 1) approving an Amendment to the Professional Services Agreement in the amount of $273,200 between the City of Salinas and Wallace Group for the Sanitary Sewer Spot Repairs and Maintenance Repairs project and 2) approving a transfer of $173,200 from the Capital Outlays Improvements balance to the Outside Services Other Professional Services balance of this Capital Improvement Project (CIP 9742).
BACKGROUND:
The City of Salinas owns and operates a municipal sanitary sewer collection system for the residents and businesses within its service area. The City periodically conducts studies to perform repairs on existing deficiencies in the collection system.
On October 10, 2022, the City of Salinas entered into an Agreement for Professional Services with Wallace Group for the Sanitary Sewer Spot Repairs and Maintenance Repairs. As part of this Agreement, Wallace Group was to prepare preliminary 30% design plans for all 13 Capital Improvement Projects with limited surveying scope and no geotechnical investigations. Wallace Group’s total compensation for the associated services in the agreement is $93,200.
Over the course of conducting the Sanitary Sewer Spot Repairs and Maintenance Repairs, there were 8 high-priority Capital Improvement Projects that City Staff identified as requiring complete engineering designs. These high-priority CIPs now need to have bid-ready 100% designs prepared by Wallace Group. The expanded work tasks include full surveying of the identified CIP locations, pulling title records, geotechnical sub-consultant fees, engineering design work, and associated project management. The additional scope represents a net increase of $180,000 to the original Agreement.
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Wallace Group was originally selected under the Master Services Agreement and because they were in the process of preparing the update to the Sanitary Sewer Master Plan staff felt this gave Wallace Group a unique knowledge and familiarity with the sanitary sewer system. Based on their performance with the project thus far and the now completed Sanitary Sewer Master Plan update, staff believes Wallace Group has demonstrated that they are a very qualified vendor to assist the City with the continued implementation of the spot and maintenance repairs.
CEQA CONSIDERATION:
Not a Project. The City of Salinas has determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA) (CEQA Guidelines Section 15378).
STRATEGIC PLAN INITIATIVE:
The proposed project and agreement meet the City Council’s goal of Infrastructure and Environmental Sustainability (City of Salinas Strategic Plan 2022-2025) by improving City facilities.
DEPARTMENTAL COORDINATION:
This project has relied on coordination between the Wastewater and Water, Waste and Energy (WWE) divisions in Public Works. WWE has coordinated the overall execution of the Sanitary Sewer Spot Repairs and Maintenance Repairs with input and field support from Wastewater Division staff.
FISCAL AND SUSTAINABILITY IMPACT:
The total increased cost for the additional scope of work in the corresponding Amended and Restated Professional Services Agreement is $180,000.
A total of $100,000 have been appropriated to CIP 9742, Outside Services Other Professional Services, Sanitary Sewer Spot Repairs and Maintenance Repairs. The Amended and Restated Professional Services Agreement will require a transfer of an additional $173,200 to the Outside Services Other Professional Services account (5800.50.9742-63.5900) of CIP 9742, from the Capital Outlays Improvements account (5800.50.9742-66.4000) which has a total of $196,294.92 in available funds.
CIP 9742 is funded by the Sewer Fund and thus no general funds will be expended.
ATTACHMENTS:
Resolution
Amendment No. 1 to Agreement for Professional Services for Environmental Consultants/Contractors, Wallace Group and City of Salinas Page | 1
RESOLUTION NO. (N.C.S.)
A RESOLUTION APPROVING AN AMENDMENT TO THE PROFESSIONAL
SERVICES AGREEMENT BETWEEN THE CITY OF SALINAS AND
WALLACE GROUP FOR THE SANITARY SEWER SPOT REPAIRS AND
MAINTENANCE REPAIRS
WHEREAS, the City of Salinas owns and operates a municipal sanitary sewer collection system for the residents and businesses within its service area and the City periodically conducts studies to perform repairs on existing deficiencies in the collection system; and WHEREAS, on October 10th, 2022, the City of Salinas entered into an Agreement for Professional Services with Wallace Group for the Sanitary Sewer Spot Repairs and Maintenance Repairs; and
WHEREAS, over the course of conducting the Sanitary Sewer Spot Repairs and Maintenance Repairs, additional services have been identified that were not in the original scope of work; and
WHEREAS, an Amendment to the Professional Services Agreement was drafted to reflect these changes.
NOW, THEREFORE, BE IT RESOLVED that the Salinas City Council approves Amendment No. 1 to the Professional Services Agreement between the City of Salinas and Wallace Group to provide professional services related to the Sanitary Sewer Spot Repairs and Maintenance Repairs (CIP 9742) in the amount of $273,200 is hereby approved; and BE IT FURTHER RESOLVED that the City Council approves a transfer of $173,200 from CIP 9742, Capital Outlays Improvements (5800.50.9742-66.4000) to Outside Services Other Professional Services (5800.50.9742-63.5900); and
BE IT FURTHER RESOLVED that the Mayor of Salinas is hereby authorized and directed, for and on behalf of the City of Salinas, and as its act and deed, to execute the attached Amendment No 1 to the Professional Services Agreement between the City of Salinas, a Charter City, and Wallace Group, a California Corporation; and
BE IT FURTHER RESOLVED that the City Manager or his designee is authorized to execute extensions and/or non-substantial modifications to the Agreement, as necessary.
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PASSED AND APPROVED this 8th day of August 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
_______________________
Kimbley Craig, Mayor
ATTEST:
_________________________
Patricia M. Barajas, City Clerk
Version: November 2022
AGREEMENT —AMENDMENT NO. 1 TO
AGREEMENT FOR PROFESSIONAL SERVICES FOR ENVIRONMENTAL CONSULTANTS/CONTRACTORS
BETWEEN
WALLACE GROUP AND CITY OF SALINAS
This Amendment No. 1 to the Agreement for Professional Services (the “Amendment”) is entered into this 8th day of August 2023, by and between the City of Salinas (the “City”) and Wallace Group, (the “Consultant”). City and Consultant may be individually referred to herein as a “Party” and collectively the City and Consultant may be referred to as the “Parties.”
RECITALS
WHEREAS, the City and Consultant first entered into an Agreement for Professional Services for Environmental Consultants/Contractors effective October 10th, 2022, pursuant to which Consultant agreed to act as and provide certain services to the City for compensation (the “Agreement”); and WHEREAS, the City and Consultant desire to amend the Agreement to include additional scope of services provided by Consultant, and to reflect the revised compensation to be paid to Consultant.
NOW, THEREFORE, in mutual consideration of the terms and conditions set forth below, the Parties agree as follows:
TERMS
I. The Agreement, 1. Scope of Service section, is amended and restated in its entirety as follows:
1. Scope of Service. The project contemplated and the scope of Consultant’s services are described in Exhibits B and B1, attached hereto and incorporated herein by reference.
II. The Agreement, 3. Compensation section, is amended and restated in its entirety as follows:
3. Compensation. City hereby agrees to pay Consultant for services rendered the City pursuant to this Agreement for sanitary sewer spot repairs and maintenance repairs on a time and materials basis according to the rates of compensation set forth in Exhibits B, and B1. The total amount of compensation to be paid under this Agreement shall not exceed two hundred seventy three thousand two hundred dollars ($273,200).
III. All other covenants, terms, and conditions set forth in the Agreement and not amended by this Amendment shall remain in full force and effect as if fully set forth herein.
IN WITNESS WHEREOF, the undersigned, as authorized representatives of the City and Consultant have entered into this Agreement as of the date first written above.
CITY OF SALINAS
___________________________________
Steven S. Carrigan, City Manager
APPROVED AS TO FORM:
___________________________________
□ Christopher A. Callihan, City Attorney
□ Rhonda Combs, Assistant City Attorney
Version: November 2022
WALLACE GROUP
____________________________________
Kari Wagner
Principal-in-Charge, Wallace Group, a California Corporation Enviro. Prof. Services Agreement v. January 2021 Page 13 of 19 Wallace Group – Spot Repairs Oct 2022
Exhibit B- Scope of Service
DocuSign Envelope ID: A2D3B01E-D4DD-4208-951B-AF7CC248EF94 DocuSign Envelope ID: 2AEA2D83-DE16-4915-BA52-4D3EBB9E746E DocuSign Envelope ID: BA88C86B-D0A8-4C03-A55C-421568F1DD31 Enviro. Prof. Services Agreement v. January 2021 Page 14 of 19 Wallace Group – Spot Repairs Oct 2022
DocuSign Envelope ID: A2D3B01E-D4DD-4208-951B-AF7CC248EF94 DocuSign Envelope ID: 2AEA2D83-DE16-4915-BA52-4D3EBB9E746E DocuSign Envelope ID: BA88C86B-D0A8-4C03-A55C-421568F1DD31 Enviro. Prof. Services Agreement v. January 2021 Page 15 of 19 Wallace Group – Spot Repairs Oct 2022
DocuSign Envelope ID: A2D3B01E-D4DD-4208-951B-AF7CC248EF94 DocuSign Envelope ID: 2AEA2D83-DE16-4915-BA52-4D3EBB9E746E DocuSign Envelope ID: BA88C86B-D0A8-4C03-A55C-421568F1DD31 Enviro. Prof. Services Agreement v. January 2021 Page 16 of 19 Wallace Group – Spot Repairs Oct 2022
DocuSign Envelope ID: A2D3B01E-D4DD-4208-951B-AF7CC248EF94 DocuSign Envelope ID: 2AEA2D83-DE16-4915-BA52-4D3EBB9E746E DocuSign Envelope ID: BA88C86B-D0A8-4C03-A55C-421568F1DD31 Enviro. Prof. Services Agreement v. January 2021 Page 17 of 19 Wallace Group – Spot Repairs Oct 2022
DocuSign Envelope ID: A2D3B01E-D4DD-4208-951B-AF7CC248EF94 DocuSign Envelope ID: 2AEA2D83-DE16-4915-BA52-4D3EBB9E746E DocuSign Envelope ID: BA88C86B-D0A8-4C03-A55C-421568F1DD31 Enviro. Prof. Services Agreement v. January 2021 Page 18 of 19 Wallace Group – Spot Repairs Oct 2022
DocuSign Envelope ID: A2D3B01E-D4DD-4208-951B-AF7CC248EF94 DocuSign Envelope ID: 2AEA2D83-DE16-4915-BA52-4D3EBB9E746E DocuSign Envelope ID: BA88C86B-D0A8-4C03-A55C-421568F1DD31
CONTRACT AMENDMENT
Project Name: Sewer Spot Repairs & Maintenance Improvements CA No. 1 Client Name: City of Salinas Project/Phase No. 0886-0029 Attention: Brian Frus Date: June 29, 2023
Address: 200 Lincoln Avenue, Salinas, CA 93901
Wallace Group requests the Client’s authorization to proceed with revisions to the contract agreement for the above referenced project as herein described. Approval below incorporates this document as a part of the original contract signed October 18, 2022. If approved, please return one signed original Contract Amendment to Wallace Group.
Description and Purpose of the Revision(s)
Per the original contract, Wallace Group (WG) performed a field visit of the following Capital Improvement Project (CIP) sites to determine the work needed to develop fully engineered, bidready designs for each CIP listed below:
CIP Number Project Title
7 West Market at Davis Overcrossing
9a Wilgart Way Sewer Main Replacement
9b Manhole N5-004 Replacement
9c Manhole N5-003 Replacement
10 Romie Lane Repairs & Reconfiguration
11 Kings Street Repairs
12a Del Monte Avenue Repair
12b Mae Avenue Repair
13 Riker Street Repair
14a W Market Street Flushing Inlets
14b Villa Street Repair
14c Capitol Street Repair
15 Johnson Place Repair
16 N Main Street/101 Underpass Bunker Repair
17 Donner Way Repair
18 San Miguel Avenue Repair
24a E Laurel Drive Repair
24b Williams Road Repair
26a Katherine Ave and Alameda Ave Repair
26b Katherine Ave and Pajaro St Repair
Walla Group presented the findings to City of Salinas staff on 02/10/2023, during which the City identified several high-priority CIPs that the City desires to have fully engineered designs. These CIPs include:
• CIP 7: West Market at Davis Overcrossing
• CIP 11: Kings Street Repairs
• CIP 12A: Del Monte Avenue Repairs
• CIP 12B: Mae Avenue Repairs
• CIP 13: Riker Street Repair
• CIP 14B: Villa Street Repair
• CIP 14C: Capitol Street Repair
• CIP 16: N Main Street/101 Underpass Bunker Repair
• CIP 17: Donner Way Repair
• CIP 18: San Miguel Avenue Repair
Exhibit B1 - Scope of Services
CA #1
City of Salinas
June 29, 2023
Based on the field observations and conversations with the city, Wallace Group presents the following Contract Amendment to address the work needed to provide fully engineered designs for the CIPs listed above. The expanded, modified, and/or added work tasks include full topographic survey of all CIP locations, pulling title records where required, geotechnical sub-consultant fees, engineering design work for 30%, 90%, and 100% submittals, and associated project management.
CONTRACT AMENDMENT SUMMARY
ORIGINAL CONTRACT AMOUNT $ 93,200
REMAINING BUDGET AVAILABLE $ 75,640
AMENDED SCOPE OF WORK VALUE $ 255,640
CONTACT AMENDMENT VALUE $ 180,000
Revision(s) Represent: Revision(s) Fee:
(x) a change in previous instructions ( ) hourly (time & materials) $ ( ) a change in Scope of Services ( ) progress billing: $ ( ) other: (x) not-to-exceed w/o authorization: $180,000 Revision(s) will be invoiced as:
(x) increase to an item within the existing contract
( ) a new item added to existing contract
Issued by,
WALLACE GROUP, a California Corporation
Kari Wagner, PE C66026
Principal
612 Clarion Court
San Luis Obispo
California 93401
T 805 544-4011
F 805 544-4294
www.wallacegroup.us
City of Salinas
Legislation Text
200 Lincoln Ave., Salinas,
CA 93901
www.cityofsalinas.org
File #: ID#23-480, Version: 1
Professional Service Agreement with Carollo Engineers for the Industrial Wastewater Treatment Facility Flood Damage Repairs
Approve a Resolution approving a Professional Services Agreement in the amount of $413,800 with Carollo Engineers for the Industrial Wastewater Treatment Facility Flood Damage Repairs; authorize a transfer of funds of $413,800 from the General Fund to the Industrial Waste Fund; and authorize creation of and an appropriation to a dedicated CIP for the Industrial Wastewater Treatment Facility Flood Damage Repairs in the amount of $413,800 from the Industrial Waste Fund.
City of Salinas Page 1 of 1 Printed on 8/2/2023
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CITY OF SALINAS
COUNCIL STAFF REPORT
DATE: AUGUST 8, 2023
DEPARTMENT: PUBLIC WORKS
FROM: DAVID JACOBS, DIRECTOR
BY: BRIAN FRUS, SENIOR ENGINEER
TITLE: PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY
OF SALINAS AND CAROLLO ENGINEERS FOR THE
INDUSTRIAL WASTEWATER TREATMENT FACILITY FLOOD
DAMAGE REPAIRS
RECOMMENDED MOTION:
A motion to approve a Resolution 1) approving a Professional Services Agreement in the amount of $413,800 between the City of Salinas and Carollo Engineers for the Industrial Wastewater Treatment Facility Flood Damage Repairs; 2) authorize a transfer of funds of $413,800 from the General Fund to the Industrial Waste Fund; and 3) authorize creation of and an appropriation to a dedicated CIP for the Industrial Wastewater Treatment Facility Flood Damage Repairs in the amount of $413,800 from the Industrial Waste Fund.
BACKGROUND:
The City of Salinas owns and operates an Industrial Wastewater Collection and Conveyance System (IWCCS) which takes agricultural process water from 26 industries. The wastewater is conveyed for disposal or recycling to the Industrial Waste Treatment Facility (IWTF) located south of the City on the Salinas River.
The extreme precipitation from this winter’s storms resulted in elevated water levels in the Salinas River. As a result, the IWTF was inundated with flood waters in January and March 2023. This caused damage to earthen berms, levees, and an overflow basin and deposited a layer of sediment across the percolation ponds. The deposited sediment has significantly impacted the percolation capabilities of the ponds which limits the ability to dispose of the industrial wastewater to the underlying soils. The limited ability to dispose the City’s industrial waste is a critical issue that needs to be addressed as soon as possible. Additionally, the levees damaged by the flooding need to be repaired to restore their integrity and reduce risk of further deterioration. The City is pursuing funding from the Federal Emergency Management Agency (FEMA) for all elements of these projects.
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The schedule for this project is driven by the FEMA funding requirement to be substantially complete with construction by March 31, 2024. Given the large scope of work to be completed within the timeframe required by FEMA, a consultant must be engaged quickly in order stay on schedule. Carollo is intimately familiar with the IWTF, having performed a system evaluation, CEQA process, Revised Rate and Connection Fee Study and overall project oversight for the IWTF expansion effort. Additionally, staff believes Carollo is a very qualified vendor to assist the City with the implementation of these flood repair activities, including design, preparation of project bid documents and providing construction related services. City staff recommends sole source award of this work to Carollo as no other consulting entity is currently as familiar with the City’s needs and challenges associated with this effort and has the ability to begin work immediately.
CEQA CONSIDERATION:
Not a Project. The City of Salinas has determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA) (CEQA Guidelines Section 15378).
STRATEGIC PLAN INITIATIVE:
The proposed project and agreement meet the City Council’s goal of Infrastructure and Environmental Sustainability (City of Salinas Strategic Plan 2022-2025) by maintaining and improving City facilities.
DEPARTMENTAL COORDINATION:
This project will rely on coordination between the Wastewater and Water, Waste and Energy (WWE) divisions in Public Works and the Finance Department. WWE will coordinate the overall execution of the IWTF expansion efforts with input and field support from Wastewater Division staff. Finance will coordinate the reimbursement of project expenses through FEMA.
FISCAL AND SUSTAINABILITY IMPACT:
The total estimated cost for the scope of work contained in the Professional Services Agreement is $413,800. A total of $413,800 will be transferred and held in reserve in a CIP dedicated to the IWTF Flood Damage Repairs to include professional services and implementation.
Initial funding for the project will come from a General Fund transfer to the Industrial Waste Fund.
FEMA is expected to pay 75 percent of the costs of flood related damages. Of the remaining 25 percent, California Office of Emergency Services (CalOES) is anticipated to reimburse 75 percent.
This represents a net reimbursement of 93.75 percent of the total costs with City funding the remaining 6.25 percent. Thus, for the $413,800 cost of this agreement the City’s portion will be $25,863 and $387,937 to be reimbursed by FEMA and CalOES.
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ATTACHMENTS:
Resolution
Professional Services Agreement City of Salinas and Carollo Engineers for the Industrial Wastewater Treatment Facility Flood Damage Repairs
RESOLUTION NO. _______(N.C.S.)
A RESOLUTION APPROVING A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SALINAS AND CAROLLO ENGINEERS
FOR THE INDUSTRIAL WASTEWATER TREATMENT FACILITY
FLOOD DAMAGE REPAIRS
WHEREAS, as a result of winter storms, the Industrial Waste Treatment Facility was inundated with flood waters in January and March 2023; and WHEREAS, the schedule for this project is driven by the FEMA funding requirement to be substantially complete with construction by March 31, 2024; and WHEREAS, the large scope of work to be completed within the timeframe required by FEMA requires that a consultant be engaged quickly in order stay on schedule; and WHEREAS, staff recommends sole source award of this work to Carollo as no other consulting entity is currently as familiar with the City’s needs and challenges associated with this effort and has the ability to begin work immediately.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SALINAS, that agreement between the City of Salinas and Carollo Engineers, Inc. to provide professional services related to the Industrial Wastewater Treatment Facility Flood Damage Repairs in the amount of $413,800 is hereby approved; and BE IT FURTHER RESOLVED that the City Council approves a transfer of $413,800 from the General Fund to the Industrial Waste Fund; and BE IT FURTHER RESOLVED that the City Council authorizes creation of and an appropriation to a dedicated CIP for the Industrial Wastewater Treatment Facility Flood Damage Repairs in the same amount of $413,800 from the Industrial Waste Fund; and BE IT FURTHER RESOLVED that the Mayor of Salinas is hereby authorized and directed, for and on behalf of the City of Salinas, and as its act and deed, to execute the attached Agreement for Professional Services between the City of Salinas, a Charter City, and Carollo Engineers, Inc., a Delaware Corporation; and
BE IT FURTHER RESOLVED that the City Manager is authorized to execute extensions and/or non-substantive modifications to the Agreement, as necessary.
PASSED AND ADOPTED this 8th day of August 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
_______________________________
Kimbley Craig, Mayor
ATTEST:
_________________________
Patricia M. Barajas, City Clerk
AGREEMENT
FOR PROFESSIONAL SERVICES FOR
ENVIRONMENTAL CONSULTANTS/
CONTRACTORS BETWEEN
THE CITY OF SALINAS AND CAROLLO
ENGINEERS, INC
Contents
RECITALS................................................................................................................................. 1 TERMS....................................................................................................................................... 1
1. Scope of Service. ................................................................................................................. 1
2. Term; Completion Schedule. ............................................................................................... 1
3. Compensation ...................................................................................................................... 1
4. Billing .................................................................................................................................. 1
5. Meet and Confer. ................................................................................................................. 2
6. Additional Copies. ............................................................................................................... 2
7. Responsibility of Consultant................................................................................................ 2
8. Responsibility of City. ......................................................................................................... 2
9. Acceptance of Work Not a Release. .................................................................................... 3
10. Indemnification and Hold Harmless. ................................................................................... 3
11. Insurance.............................................................................................................................. 3
12. Access to Records................................................................................................................ 3
13. Assignment. ......................................................................................................................... 3
14. Changes to Scope of Work. ................................................................................................. 4
15. Ownership of Documents. ................................................................................................... 4
16. Termination.......................................................................................................................... 4
17. Compliance with Laws, Rules, and Regulations. ................................................................ 5
18. Exhibits Incorporated........................................................................................................... 5
19. Independent Contractor........................................................................................................ 5
20. Integration and Agreement. ................................................................................................. 5
21. Jurisdiction........................................................................................................................... 5
22. Severability. ......................................................................................................................... 6
23. Notices. ................................................................................................................................ 6
24. Nondiscrimination................................................................................................................ 6
25. Conflict of Interest. .............................................................................................................. 7
26. Headings. ............................................................................................................................. 7
27. Attorneys’ Fees.................................................................................................................... 7
28. Non-Exclusive Agreement................................................................................................... 7
29. Rights and Obligations Under Agreement........................................................................... 7
30. Licenses................................................................................................................................ 7
31. Counterparts......................................................................................................................... 7
32. Legal Representation. .......................................................................................................... 7
33. Joint Representation............................................................................................................. 8
34. Warranty of Authority.......................................................................................................... 8
35. No Waiver of Rights. ........................................................................................................... 8 Exhibit A- Insurance Requirements for Environmental Contractors and/or Consultants ........ 10 Exhibit B- Scope of Service ..................................................................................................... 13 Enviro. Prof. Services Agreement v. January 2021 Page 1 of 12 Carollo Engineers, Inc.
August 2023
AGREEMENT FOR PROFESSIONAL SERVICES FOR ENVIRONMENTAL
CONSULTANTS/CONTRACTORS BETWEEN
THE CITY OF SALINAS AND CAROLLO ENGINEERS INC
This Agreement for Professional Services (the “Agreement” and/or “Contract”) is made and entered into this 14th day of June, 2022, between the City of Salinas, a California Charter city and municipal corporation (hereinafter “City”), and Carollo Engineers, Inc., a Delaware corporation, (hereinafter “Consultant”).
RECITALS
WHEREAS, Consultant represents that he, she or it is specially trained, experienced, and competent to perform the special services which will be required by this Agreement; and WHEREAS, Consultant is willing to render such professional services, as hereinafter defined, on the following terms and conditions.
NOW, THEREFORE, City and Consultant agree as follows:
TERMS
1. Scope of Service. The project contemplated and the scope of Consultant’s services are described in Exhibit B, attached hereto and incorporated herein by reference.
2. Term; Completion Schedule. This Agreement shall commence on August 8, 2023, and shall terminate on August 7, 2025, unless extended in writing by either party upon (30) days written notice. This Agreement may be extended only upon mutual written consent of the parties, and may be terminated only pursuant to the terms of this Agreement.
3. Compensation. City hereby agrees to pay Consultant for services rendered the City pursuant to this Agreement on a time and materials basis according to the rates of compensation set forth in Exhibit B. The total amount of compensation to be paid under this Agreement shall not exceed four hundred thirteen thousand eight hundred dollars ($413,800).
4. Billing. Consultant shall submit to City an itemized invoice, prepared in a form satisfactory to City, describing its services and costs for the period covered by the invoice.
Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant’s bills shall include the following information to which such services cost or pertain:
(A)A brief description of services performed;
(B) The date the services were performed;
(C)The number of hours spent and by whom;
(D)A brief description of any costs incurred; and
(E) The Consultant’s signature.
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Any such invoices shall be in full accord with any and all applicable provisions of this Agreement.
City shall make payment on each such invoice within thirty (30) days of receipt; provided, however, that if Consultant submits an invoice which is incorrect, incomplete, or not in accord with the provisions of this Agreement, City shall not be obligated to process any payment to Consultant until thirty (30) days after a correct and complying invoice has been submitted by Consultant. The City shall process undisputed portion immediately.
5. Meet and Confer. Consultant agrees to meet and confer with City or its agents or employees with regard to services as set forth herein as may be required by the City to ensure timely and adequate performance of the Agreement.
6. Additional Copies. If City requires additional copies of reports, or any other material which Consultant is required to furnish as part of the services under this Agreement, Consultant shall provide such additional copies as are requested, and City shall compensate Consultant for the actual costs related to the production of such copies by Consultant.
7. Responsibility of Consultant. By executing this Agreement, Consultant agrees that the services to be provided and work to be performed under this Agreement shall be performed in a fully competent manner. By executing this Agreement, Consultant further agrees and represents to City that the Consultant possesses, or shall arrange to secure from others, all of the necessary professional capabilities, experience, resources, and facilities necessary to provide the City the services contemplated under this Agreement and that City relies upon the professional skills of Consultant to do and perform Consultant’s work. Consultant further agrees and represents that Consultant shall follow the current, generally accepted practices in this area to the profession to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding the projects for which the services are rendered under this Agreement.
8. Responsibility of City. To the extent appropriate to the projects to be completed by Consultant pursuant to this Agreement, City shall:
(A) Assist Consultant by placing at its disposal all available information pertinent to the projects, including but not limited to, previous reports and any other data relative to the projects. Nothing contained herein shall obligate City to incur any expense in connection with completion of studies or acquisition of information not otherwise in the possession of City. (B) Examine all studies, reports, sketches, drawings, specifications, proposals, and other documents presented by Consultant, and render verbally or in writing as may be appropriate, decisions pertaining thereto within a reasonable time so as not to delay the services of Consultant.
(C) Steve Carrigan, City Manager, or his designee, shall act as City’s representative with respect to the work to be performed under this Agreement. Such person shall have the
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complete authority to transmit instructions, receive information, interpret and define City’s policies and decisions with respect to materials, equipment, elements, and systems pertinent to Consultant’s services. City may unilaterally change its representative upon notice to the Consultant.
(D) Give prompt written notice to Consultant whenever City observes or otherwise becomes aware of any defect in a project.
9. Acceptance of Work Not a Release. Acceptance by the City of the work to be performed under this Agreement does not operate as a release of Consultant from professional responsibility for the work performed.
10. Indemnification and Hold Harmless.
Consultant agrees to indemnify, including the cost to defend, City and its officers, officials, employees, and volunteers from and against any and all claims, demands, costs, or liability that arise out of, or pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant and its employees or agents in the performance of services under this contract, but this indemnity does not apply to liability for damages arising from the sole negligence, active negligence, or willful acts of the City; and does not apply to any passive negligence of the City unless caused at least in part by the Design Professional. In no event shall the cost to defend charged to Consultant exceed Consultant’s proportionate percentage of fault.
Consultant shall not be responsible for warranties, guarantees, fitness for a particular purpose, breach of fiduciary duty, loss of anticipated profits or for economic, incidental, liquidated, or consequential damages to City or any third party arising out of breach of contract, delay, termination, or for professional negligence. Additionally, Consultant shall not be responsible for acts and decisions of third parties, including governmental agencies, other than Consultant’s subconsultants, that impact project completion and/or success.
11. Insurance.
Consultant shall procure and maintain for the duration of this Agreement insurance meeting the requirements specified in Exhibit A hereto.
12. Access to Records. Consultant shall maintain all preparatory books, records, documents, accounting ledgers, and similar materials including but not limited to calculation and survey notes relating to work performed for the City under this Agreement on file for at least three (3) years following the date of final payment to Consultant by City. Any duly authorized representative(s) of City shall have access to such records for the purpose of inspection, audit, and copying at reasonable times during Consultant’s usual and customary business hours.
Consultant shall provide proper facilities to City’s representative(s) for such access and inspection.
13. Assignment. It is recognized by the parties hereto that a substantial inducement to City for entering into this Agreement was, and is, the professional reputation and competence of
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Consultant. This Agreement is personal to Consultant and shall not be assigned by it without express written approval of the City.
14. Changes to Scope of Work. City may at any time, and upon a minimum of ten (10) days written notice, seek to modify the scope of services to be provided for any project to be completed under this Agreement. Consultant shall, upon receipt of said notice, determine the impact on both time and compensation of such change in scope and notify City in writing. Rate of compensation shall be based upon the Consultant’s rates shown in Exhibit B of this Agreement. Upon agreement between City and Consultant as to the extent of said impacts to time and compensation, an amendment to this Agreement shall be prepared describing such changes. Execution of the amendment by City and Consultant shall constitute the Consultant’s notice to proceed with the changed scope.
15. Ownership of Documents. Title to all final documents, including drawings, specifications, data, reports, summaries, correspondence, photographs, computer software (if purchased on the City’s behalf), video and audio tapes, software output, and any other materials with respect to work performed under this Agreement shall vest with City at such time as City has compensated Consultant, as provided herein, for the services rendered by Consultant in connection with which they were prepared. City agrees to hold harmless and indemnify the Consultant against all damages, claims, lawsuits, and losses of any kind including defense costs arising out of any use of said documents, drawings, and/or specifications on any other project without written authorization of the Consultant.
16. Termination.
(A) City shall have the authority to terminate this Agreement, upon written notice to Consultant, as follows:
(1) If in the City’s opinion the conduct of the Consultant is such that the interest of the City may be impaired or prejudiced, or
(2) For any reason whatsoever.
(B) Upon termination, Consultant shall be entitled to payment of such amount as fairly compensates Consultant for all work satisfactorily performed up to the date of termination based upon the Consultant’s rates shown in Exhibit B and/or Section 3 of this Agreement, except that:
(1) In the event of termination by the City for Consultant’s default, City shall deduct from the amount due Consultant the total amount of additional expenses incurred by City as a result of such default. Such deduction from amounts due Consultant are made to compensate City for its actual additional costs incurred in securing satisfactory performance of the terms of this Agreement, including but not limited to, costs of engaging another consultant(s) for such purposes. In the event that such additional expenses shall exceed amounts otherwise due and payable to Consultant hereunder, Consultant shall pay City the full amount of such expense.
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Carollo Engineers, Inc.
August 2023
(C) In the event that this Agreement is terminated by City for any reason, Consultant shall:
(1) Upon receipt of written notice of such termination promptly cease all services on this project, unless otherwise directed by City; and (2) Deliver to City all documents, data, reports, summaries, correspondence, photographs, computer software output, video and audio tapes, and any other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. Such material is to be delivered to City in completed form; however, notwithstanding the provisions of Section 15 herein, City may condition payment for services rendered to the date of termination upon Consultant’s delivery to the City of such material.
(D) In the event that this Agreement is terminated by City for any reason, City is hereby expressly permitted to assume the projects and complete them by any means, including but not limited to, an agreement with another party.
(E) The rights and remedy of the City and Consultant provided under this Section are not exclusive and are in addition to any other rights and remedies provided by law or appearing in any other section of this Agreement.
17. Compliance with Laws, Rules, and Regulations. Services performed by Consultant pursuant to this Agreement shall be performed in accordance and full compliance with all applicable federal, state, and City laws and any rules or regulations promulgated thereunder.
18. Exhibits Incorporated. All exhibits referred to in this Agreement and attached to it are hereby incorporated in it by this reference. In the event there is a conflict between any of the terms of this Agreement and any of the terms of any exhibit to the Agreement, the terms of the Agreement shall control the respective duties and liabilities of the parties.
19. Independent Contractor. It is expressly understood and agreed by both parties that Consultant, while engaged in carrying out and complying with any of the terms and conditions of this Agreement, is an independent contractor and not an employee of the City. Consultant expressly warrants not to represent, at any time or in any manner, that Consultant is an employee or servant of the City.
20. Integration and Agreement. This Agreement represents the entire understanding of City and Consultant as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters contained herein. This Agreement may not be modified or altered except by amendment in writing signed by both parties.
21. Jurisdiction. This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be in the State of California, in the County of Monterey or in the appropriate federal court with jurisdiction over the matter.
Enviro. Prof. Services Agreement v. January 2021
Carollo Engineers, Inc.
August 2023
22. Severability. If any part of this Agreement is found to be in conflict with applicable laws, such part shall be inoperative, null and void insofar as it is in conflict with said laws, but the remainder of the Agreement shall continue to be in full force and effect.
23. Notices.
(A) Written notices to the City hereunder shall, until further notice by City, be addressed to:
City Manager
City of Salinas
200 Lincoln Avenue
Salinas, California 93901
With a copy to:
City Attorney
City of Salinas
200 Lincoln Avenue
Salinas, California 93901
(B) Written notices to the Consultant shall, until further notice by the Consultant, be addressed to:
Lydia Holmes
Vice President
Carollo Engineers, Inc.
2795 Mitchell Drive
Walnut Creek, CA 94598
(925) 932-1710
(C) The execution of any such notices by the City Manager shall be effective as to Consultant as if it were by resolution or order of the City Council, and Consultant shall not question the authority of the City Manager to execute any such notice. (D) All such notices shall either be delivered personally to the other party’s designee named above, or shall be deposited in the United States Mail, properly addressed as aforesaid, postage fully prepaid, and shall be effective the day following such deposit in the mail.
24. Nondiscrimination. During the performance of this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, creed, sex, national origin, familial status, sexual orientation, age (over 40 years) or disability. Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion,
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ancestry, creed, sex, national origin, familial status, sexual orientation, age (over 40 years) or disability.
25. Conflict of Interest. Consultant warrants and declares that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, in any manner or degree which will render the services required under the provisions of this Agreement a violation of any applicable local, state or federal law. Consultant further declares that, in the performance of this Agreement, no subcontractor or person having such an interest shall be employed. In the event that any conflict of interest should nevertheless hereinafter arise, Consultant shall promptly notify City of the existence of such conflict of interest so that City may determine whether to terminate this Agreement. Consultant further warrants its compliance with the Political Reform Act (Government Code section 81000 et seq.) and Salinas City Code Chapter 2A that apply to Consultant as the result of Consultant’s performance of the work or services pursuant to the terms of this Agreement.
26. Headings. The section headings appearing herein shall not be deemed to govern, limit, modify, or in any manner affect the scope, meaning or intent of the provisions of this Agreement.
27. Attorneys’ Fees. In case suit shall be brought to interpret or to enforce this Agreement, or because of the breach of any other covenant or provision herein contained, the prevailing party in such action shall be entitled to recover their reasonable attorneys’ fees in addition to such costs as may be allowed by the Court. City’s attorneys’ fees, if awarded, shall be calculated at the market rate.
28. Non-Exclusive Agreement. This Agreement is non-exclusive and both City and Consultant expressly reserves the right to contract with other entities for the same or similar services.
29. Rights and Obligations Under Agreement. By entering into this Agreement, the parties do not intend to create any obligations express or implied other than those set out herein; further, this Agreement shall not create any rights in any party not a signatory hereto.
30. Licenses. If a license of any kind, which term is intended to include evidence of registration, is required of Consultant, its representatives, agents or subcontractors by federal, state or local law, Consultant warrants that such license has been obtained, is valid and in good standing, and that any applicable bond posted in accordance with applicable laws and regulations.
31. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement.
32. Legal Representation. Each party affirms that it has been represented by legal counsel of its own choosing regarding the preparation and the negotiation of this Agreement and the matters and claims set forth herein, and that each of them has read this Agreement and is fully aware of its contents and its legal effect. Neither party is relying on any statement of the other
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party outside the terms set forth in this Agreement as an inducement to enter into this Agreement.
33. Joint Representation. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall be applicable or invoked.
34. Warranty of Authority. Each party represents and warrants that it has the right, power, and authority to enter into this Agreement. Each party further represents and warrants that it has given any and all notices, and obtained any and all consents, powers, and authorities, necessary to permit it, and the persons entering into this Agreement for it, to enter into this Agreement.
35. No Waiver of Rights. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. The failure to provide notice of any breach of this Agreement or failure to comply with any of the terms of this Agreement shall not constitute a waiver thereof.
Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. A waiver by the City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement.
36. Delay. Consultant shall not be responsible for warranties, guarantees, fitness for a particular purpose, breach of fiduciary duty, loss of anticipated profits or for economic, incidental, liquidated, or consequential damages to City or any third party arising out of breach of contract, delay, termination, or for professional negligence. Additionally, Consultant shall not be responsible for acts and decisions of third parties, including governmental agencies, other than Consultant’s subconsultants, that impact project completion and/or success.
Enviro. Prof. Services Agreement v. January 2021
Carollo Engineers, Inc.
August 2023
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the date first written above.
CITY OF SALINAS
__________________________________
Steve Carrigan
City Manager
APPROVED AS TO FORM:
_________________________________
□ Christopher A. Callihan, City Attorney or
□ Rhonda Combs, Assistant City Attorney
CONSULTANT
___________________________________
By: Lydia Holmes
Its: Vice President - Carollo Engineers
Enviro. Prof. Services Agreement v. January 2021
Carollo Engineers, Inc.
August 2023
Exhibit A- Insurance Requirements for Environmental Contractors and/or Consultants Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Consultant, his agents, representatives, employees, or subcontractors. With respect to General Liability, Errors & Omissions, Contractor’s Pollution Liability, and/or Asbestos Pollution Liability, coverage should be maintained for a minimum of five (5) years after Contract completion.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (“CGL”): Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form CA 0001 covering any auto (Code 1), or if Consultant has no owned autos, hired (Code 8) and non-owned (Code 9) autos, with limits no less than $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 Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability and/or Errors & Omissions: Insurance applicable to the work being performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000 aggregate per policy period of one year.
If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City of Salinas requires and shall be entitled to the broader coverage and/or higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. At the option of the City, the Consultant shall provide coverage to reduce or eliminate such self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Consultant shall provide evidence satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
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Other Insurance Provisions
A. The General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions:
1. The City of Salinas, its officers, officials, employees, and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Forms CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
2. For any claims related to this project, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City of Salinas, its officers, officials, employees, agents, and volunteers. Any insurance or selfinsurance maintained by the City, its officers, officials, employees, agents, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
3. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
B. If General Liability, Contractors Pollution Liability and/or Asbestos Pollution Liability and/or Errors & Omissions coverages are written on a claims-made form:
1. The retroactive date must be shown, and must be before the date of the contract or the beginning of Agreement of work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Consultant must purchase an extended period coverage for a minimum of five (5) years after completion of Agreement work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
5. If the services involve lead-based paint or asbestos identification / remediation, the Contractor’s PLL policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification / remediation, the Contractor’s PLL shall not contain a mold exclusion and the definition of “Pollution” shall include microbial matter including mold.
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Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:VII if admitted in the State of California. If Contractor’s Pollution Liability, Asbestos Pollution and/or Errors & Omissions coverages are not available from an admitted insurer, the coverage may be written by a non-admitted insurance company. A non-admitted company should have an A.M.
Best rating of A:X or higher. Exception may be made for the California State Compensation Insurance Fund if not rated.
Verification of Coverage
Consultant shall furnish the City with original certificates of insurance and amendatory endorsements, or copies of the applicable insurance policy language effecting coverage required by this contract and a copy of the Declarations and Endorsements page of the policy listing all policy endorsements. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Waiver of Subrogation
Consultant hereby grants to City a waiver of subrogation which any insurer may acquire against City, its officers, officials, employees, and volunteers, from Consultant by virtue of the payment of any loss. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Salinas for all work performed by the Consultant, its employees, agents, and subcontractors.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City of Salinas is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as ISO CG 20 38 04 13.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Maintenance of Insurance
Maintenance of insurance by Consultant as specified shall in no way be interpreted as relieving Consultant of its indemnification obligations or any responsibility whatsoever and the Consultant may carry, at its own expense, such additional insurance as it deems necessary.
Enviro. Prof. Services Agreement v. January 2021
Carollo Engineers, Inc.
August 2023
Exhibit B- Scope of Service
[Scope of Service; Compensation]
1 DRAFT
6-30-23
Scope of Work
for City of Salinas Industrial Waste Facility
Emergency Percolation Ponds Solids Removal and Berm Repair Projects The City of Salinas (City) owns and operates an Industrial Waste Collection and Conveyance System (IWCCS), which is separate from the City’s sanitary and storm sewer systems. The system accepts flow from 23 different facilities, which are primarily for agricultural processing, such as fresh produce washing and packaging operations. The wastewater is conveyed for disposal or recycling to the Industrial Waste Treatment Facility (IWTF) located south of the City on the Salinas River. The percolation ponds at the IWTF were flooded by the Salinas River in January, 2023 and March, 2023 causing damage to the pond berms and depositing a silt layer across the bottom of the ponds. The deposited silt has significantly impacted the percolation capacity of the ponds which limits the City’s ability to dispose of the industrial wastewater from the ponds to the underlying soils. The silt has also contributed to high turbidity in the ponds which limits the City’s ability to dispose the industrial wastewater from the ponds to the Monterey One Water (M1W) treatment facility. The inability to dispose the City’s industrial waste is a critical issue that needs to be addressed as soon as possible. Additionally, the berms damaged by the flooding need to be repaired to restore their slope stability and allow vehicles to use the pond access roads that are supported by them. The City is pursuing funding from the Federal Emergency Management Agency (FEMA) for all elements of these projects.
Project Alternatives Evaluation
Carollo Engineers, Inc. (Carollo), was hired to evaluate and recommend an approach for removing silt and a portion of the underlying organic solids from the ponds to restore their percolation capacity and reduce turbidity. Two alternatives were recently developed and evaluated with the City:
• 1. Dredge Solids from the ponds while they remain in operation, • 2. Pump water from ponds and allow to air dry before removing solids.
The City and Carollo reached consensus on Alternative 1 for a number of reasons including the ability to meet the March 2024 deadline for completing the work for FEMA funding, it allows the ponds to remain in service while solids are removed, and it builds upon a similar dredging project completed by the City in 2022 for the aeration lagoon.
The City and Carollo also reached consensus on an approach for berm repairs. Berm repairs will be designed and bid as a separate project from the pond dredging project since it requires different type of equipment and contractors. The selected contractor will make repairs to berms and roads that require equipment and resources the City doesn’t have available. The estimated cost for this work is approximately $300,000. The City will repair areas of the berms and access roads that can be completed with their available equipment and resources. In order to meet schedule milestones it is anticipated the pond dredging work and the pond berm repair work will need to be coordinated and construction completed simultaneously.
2 Project Design and Support Scope of Services
Carollo will prepare project design documents for the City to solicit competitive bids from licensed contractors to dredge and dewater silt and solids from the ponds using plans and specifications to the extent possible from the City’s aeration lagoon solids removal project. Carollo will also provide other support services to the City to ensure successful and timely completion of the Pond Dredging and Berm Repair projects. Carollo will prepare separate project design documents to solicit competitive bids for berm repairs and provide services during the bid and construction periods as described in Task 6.
Specific tasks to be completed by Carollo and its subconsultants for these projects include the following:
• Task 1 – Project Management for Pond Dredging and Berm Repair Projects • Task 2 – FEMA Funding Application Support for Pond Dredging and Berm Repair Projects • Task 3 - Prepare Pond Dredging Project Bid Documents
• Task 4 – Pond Dredging Bid Period Services
• Task 5 – Pond Dredging Construction Period Services
• Task 6 – Prepare Berm Repair Bid Documents and Provide Bid and Construction Period Services • Task 7 – Optional Services
The above tasks are detailed as follows:
Task 1 – Project Management and Meetings/Coordination
Carollo will provide management of the projects including regular meetings, coordination with the City and subconsultants, and monthly invoices. It is assumed that the schedule for the project management, funding, design, and construction of both projects will last approximately seven (7) months. Biweekly virtual meetings are assumed for the duration of the project. Agendas and topics to discuss will be determined prior to each meeting.
Deliverables:
• Meeting agendas and notes, as needed
Task 2 – FEMA Funding Application Support
Carollo will assist the City with coordination and preparation of support documents to obtain emergency FEMA funding for the Pond Dredging and Berm Repair projects utilizing information provided by the City and/or existing project documents. Based on previous discussions with the City, our understanding is the City was informed by FEMA that the project can be bid and awarded using the City’s standard bid solicitation and award process. No special federal documents, including NEPA, or procedures are required. With this understanding, the scope of services includes the following:
2.1 - Attend Meetings. Carollo will conduct up to two (2) virtual meetings with City staff, State regulators, and FEMA to discuss the application processes and other requirements necessary to apply for financing.
2.2 - Prepare Application. Carollo will complete the necessary funding application documents for City signature and submittal to FEMA.
3 Deliverables:
• Meeting agendas, notes
• Communications with FEMA
• FEMA funding application documents
Task 3 – Prepare Project Bid Documents for Pond Dredging Project
3.1 - Carollo will prepare bid documents for competitive solicitation of a licensed contractor to construct the recommended alternative (Alternative 1 – Dredging solids from the ponds) from recently completed evaluations. It is assumed the project will be implemented through a traditional design-bid-build approach using the City’s standard front-end specifications (Divisions 0 and 1) to the extent possible.
Carollo will prepare technical specifications and drawings to accompany the City’s front-end specifications in a bid package. A preliminary package will be provided for the City’s review at the 90 percent level of completion.
A cost estimate and construction schedule will also be provided. The final bid package, cost estimate, and schedule will be prepared following review of the 90 percent package.
3.2 - The final bid package, cost estimate, and schedule will be prepared following workshop to review the 90 percent package.
Assumptions:
The level of effort for the above work assumes the design drawings and technical specifications will be streamlined and not require extensive details. It is assumed the City will provide topographical survey data, word files, and CAD files from previous projects. It is also assumed that the City will not provide temporary or permanent wet or dry utilities to the site.
Deliverables:
• 90 percent bid package, cost estimate, and schedule
• Workshop to review 90 percent package
• Final bid package, cost estimate and schedule
Task 4 – Bid Period Services for Pond Dredging Project
Carollo will provide bid period services which includes conducting a pre-bid tour of the project, responding to bidder questions, preparing up to three addenda, tabulating bids, and assistance in evaluating bids for compliance with specified requirements including reference checks and financial information submitted with bids. It is assumed the bid period will last approximately four (4) weeks after the advertisement for bid is posted by the City.
Deliverables:
• Pre-bid tour notes and attendance sheet
• Written responses to bidder questions
• Addenda
• Bid tabulation
4 Task 5 - Construction Period Assistance for Pond Dredging Project Carollo will provide Engineering Services During Construction (ESDC), Construction Management (CM) services, and funding support during construction of the Pond Dredging project. These services are described below and assume a construction period of approximately three (3) months.
5.1 - Engineering Services During Construction. Carollo and its subconsultants will review up to ten (10) contractor submittals, respond to up to ten (10) Requests for Information (RFIs), prepare up to three (3) Change Orders during the construction period, and three (3) site visits to observe the work and meet with the City, CM and contractor to resolve issues as they arise. Carollo will also attend up to sixteen (16) weekly construction meetings virtually. It is assumed the meetings will be conducted by the CM and last approximately one (1) hour each.
5.2 - Construction Management Services. Carollo and its subconsultants will manage the construction contract, monitor construction progress, conduct inspections of work completed by the contractor, conduct weekly construction meetings, review and approve contractor progress billings, prepare punch lists and construction close-out documents. It is assumed a CM professional will be at the site an average 12 hours per week during the construction period. It is also assumed the contractor will be required to hire an environmental compliance subcontractor to conduct surveys and compliance reporting as needed before, during and after construction.
Carollo’s geotechnical subconsultant (Yeh) will conduct Quality Assurance (QA) laboratory testing of soils hauled from the site to confirm moisture content measurements and dry solids weight calculations provided by the contractor for billing. It is assumed soils testing will be conducted once (1) per week during the construction period and the contractor will provide Quality Control (QC) and certified weights of material disposed of
5.3 - Funding Support During Construction. Carollo will prepare monthly funding disbursement requests, prepare monthly reports, correspond with FEMA, review contractor documents for compliance with funding requirements such as certified payrolls, and environmental reporting.
Task 6 –Design and Construction Period Services for Berm Repair Project Carollo will provide Design, Bidding, Engineering Services During Construction (ESDC), and Construction Management (CM) services for the Berm Repair project. These services are described below and assume a total duration for design, bidding and construction of approximately five (5) months some of which is anticipated to overlap with the Pond Dredging project. Project management and funding support will be provided under Tasks 1, 2 and 5.
6.1 - Carollo will prepare bid documents for competitive solicitation of a licensed contractor to construct berm repairs identified during site visits and discussion with City staff. It is assumed the project will be implemented through a traditional design-bid-build approach using the City’s standard front-end specifications (Divisions 0 and 1) and existing drawings to the extent possible. Carollo will prepare technical specifications and drawings to accompany the City’s front-end specifications as needed. A preliminary package will be provided for the City’s review at the 90 percent level of completion. A cost estimate and construction schedule will also be provided. 5 6.2 - The final bid package, cost estimate, and schedule will be prepared following workshop to review the 90 percent package.
Assumptions:
The level of effort for the above work assumes the design drawings and technical specifications will be streamlined and not require extensive details. The City will provide, topographical survey data, word files, and CAD files from previous projects.
Deliverables:
• 90 percent bid package, cost estimate, and schedule
• Workshop to review 90 percent package
• Final bid package, cost estimate and schedule
6.3 - Engineering Services During Construction. Carollo and its subconsultants will review up to 10 (10) contractor submittals, respond to up to ten (10) Requests for Information (RFIs) during the construction period. Carollo will conduct up to three (3) site visits to observe the work and meet with the City, CM and contractor to resolve issues as they arise. The site visits for the Berm Repair project will be coordinated with site visits for the Pond Dredging (Task 5.1) project to the extent possible. Carollo will also attend up to four (4) construction meetings virtually. It is assumed the meetings will be conducted by the CM and last approximately one (1) hour each.
6.4 - Construction Management. Carollo and its subconsultants will manage the construction contract, monitor construction progress, conduct inspections of work, conduct weekly construction meetings, review and approve contractor progress billings, prepare punch lists and construction close-out documents. It is assumed a CM staff person will be at the site on average 16 hours day per week during the Berm Repair projects. It is also assumed the contractor will be required to hire an environmental compliance subcontractor to conduct surveys and compliance reporting as needed before, during and after construction.
Carollo’s geotechnical subconsultant (Yeh) will conduct Quality Assurance (QA) field testing for compaction of soils used in the berm repairs. It is assumed soils testing will be conducted once (1) per week during the construction period and the contractor will provide Quality Control (QC) of their work Task 7 - Optional Services
During the course of providing services described in Tasks 1 through 6, there may be deviations from the assumed scope and level of effort that are unforeseen and beyond the control of the City and Carollo. This Optional Services task provides contingency funds that can be authorized by the City as needed to cover the costs of Carollo and its subconsultants to provide services not in the original scope.
Schedule
The schedule for this project is driven by the FEMA funding requirement to be substantially complete with construction by March 31, 2024. Following are the anticipated milestone dates to meet this schedule:
• August 11, 2023 - City Issue Notice to Proceed to Carollo 6 • September 1, 2023 - Complete Pond Dredging 90 percent design. • September 13, 2023 – Conduct Pond Dredging design review with City. • September 8, 2023 - Complete FEMA funding application. • September 15, 2023 - Complete Pond Dredging final design. • October 12, 2023- Complete Pond Dredging Bid Period and Award. • October 19, 2023 - City Issue Notice to Proceed for Pond Dredging Construction. • October 13, 2023 – Complete Berm Repair 90 percent design. • October 18, 2023 – Conduct Berm Repair design review Meeting with City. • October 27, 2023 – Complete Berm Repair final design. • November 23, 2023 – Complete Berm Repair Bid Period and Award. • January 31, 2024 - Complete Pond Dredging Construction. • February 29, 2024 – Complete Berm Repair Construction.
Scope Assumptions
Carollo (Consultant) shall be entitled to use and reasonably rely upon all such information and services provided by City or others in performing Consultant's services under this Scope of Work.
Consultant has no control over the cost of labor, materials, equipment or services furnished by others.
Consultant cannot and does not guarantee that actual costs and/or quantities realized will not vary from the data projections and estimates prepared by Consultant.
The services to be performed by Consultant are intended solely for the benefit of City. No person or entity not a signatory to the Agreement shall be entitled to rely on consultant's performance of its services hereunder, and no right to assert a claim against Consultant by assignment of indemnity rights or otherwise shall accrue to a third party as a result of the Agreement or the performance of Consultant's services.”
7 CAROLLO ENGINEERS, INC.
FEE SCHEDULE for
City of Salinas IWTF Improvement Project
FY 23/24
Classification
Principle in Charge
Project Manager
Funding Lead
Construction Manager/Inspector
Project Engineer
Professional Engineer
Staff
Disciplines (QA/QC)
Graphics
Word Processing/Admin
Project Equipment Communication Expense
(PECE) Per DL Hour
Travel and Expenses
Milage at IRS Reimbursement Rate
Subconsultants
Hourly Rate
$303
$293
$265
$250
$235
$185
$160
$270
$165
$130
$13
At cost
mileage at $.655 per mile
cost + 10%
This fee schedule is subject to annual revisions due to labor adjustments.
Updated 6-30-23
Hours by Classification
Project Manager Funding/Financing Project Engineer/CMStaff Discipline QAQC reviewers Labor PECE
Printing/
Travel
Subs/
Direct Costs
Subs/
Direct Cost
+ 10%
Subs and
Other Direct
Expenses Estimated Fee
Task 1 - Project Management and Meetings for Pond Dreging and Berm Repairs 24 40 24 16 0 0 16 120 29,600 $ 1,560 $ 500 $ - $ - $ 2,060 $ 31,660 $ Task 2 - FEMA Funding Application Support 8 8 48 64 0 0 16 144 29,800 $ 1,872 $ - $ - $ - $ 1,872 $ 31,672 $ Task 2.1 – Attend Meetings 4 4 24 24 56 12,600 $ 728 $ - $ - $ - $ 728 $ 13,328 $ Task 2.2 – Prepare FEMA Application 4 4 24 40 16 88 17,200 $ 1,144 $ - $ - $ - $ 1,144 $ 18,344 $ Task 3 - Prepare Project Bid Documents for Pond Dredging 8 32 0 200 64 32 64 24 424 94,400 $ 5,512 $ 3,000 $ 4,600 $ 460 $ 13,572 $ 107,972 $
3.1 - 90 percent submittal 4 16 120 40 24 40 16 260 57,500 $ 3,380 $ 2,000 $ 4,600 $ 460 $ 10,440 $ 67,940 $
3.2 - 100 percent design 4 16 80 24 8 24 8 164 36,900 $ 2,132 $ 1,000 $ - $ 3,132 $ 40,032 $ Task 4- Bid Period Services for Pond Dredging 4 16 24 0 8 8 60 14,300 $ 780 $ 1,000 $ 1,000 $ 100 $ 2,880 $ 17,180 $ Task 5 - Construction Period Services for Pond Dredging 3 20 8 160 104 0 0 0 295 65,400 $ 3,835 $ 6,000 $ 10,000 $ 1,000 $ 20,835 $ 86,235 $ Task 5.1 - ESDC 1 8 40 40 89 19,000 $ 1,157 $ 1,000 $ 5,000 $ 500 $ 7,657 $ 26,657 $ Task 5.2 - CM 1 8 120 40 169 39,000 $ 2,197 $ 4,000 $ 5,000 $ 500 $ 11,697 $ 50,697 $ Task 5.3 - Funding Support During Construction 1 4 8 24 37 7,400 $ 481 $ 1,000 $ - $ 1,481 $ 8,881 $ Task 6 - Prepare Berm Repair Bid Documents and Provide Bidding and Construction Period Services 4 40 0 92 112 12 64 40 364 72,900 $ 4,732 $ 5,600 $ 25,400 $ 2,540 $ 38,272 $ 111,172 $ Task 6.1 - 90 percent submittal 1 16 40 40 8 40 24 169 33,300 $ 2,197 $ 300 $ 5,400 $ 540 $ 8,437 $ 41,737 $ Task 6.2 - 100 percent design 1 8 20 24 4 24 16 97 18,600 $ 1,261 $ 300 $ - $ 1,561 $ 20,161 $ Task 6.3 - ESDC 1 8 16 24 49 10,500 $ 637 $ 1,000 $ - $ 1,637 $ 12,137 $ Task 6.4 - CM 1 8 16 24 49 10,500 $ 637 $ 4,000 $ 20,000 $ 2,000 $ 26,637 $ 37,137 $ Task 7 - Optional Services 4 16 8 24 24 8 8 92 20,200 $ 1,196 $ 1,000 $ 5,000 $ 500 $ 7,696 $ 27,896 $ Total Hours and Fee 55 172 64 524 384 44 144 112 1499 326,600 $ 19,487 $ 17,100 $ 46,000 $ 4,600 $ 87,187 $ 413,787 $ City of Salinas
Emergency Pond Solids Removal and Berm Repair Projects
Fee Estimate
Task Description
Principle in Charge Graphics and CADWordProcessing/AdminTotal Hours City of Salinas
Legislation Text
200 Lincoln Ave., Salinas,
CA 93901
www.cityofsalinas.org
File #: ID#23-481, Version: 1
Amendment to Professional Services Agreement with E2 Consulting Engineers for the Industrial Wastewater Treatment Facility Expansion Project
Approve a Resolution approving an Amendment to the Professional Services Agreement in the amount of $138,300 for a total compensation not to exceed $1,269,300 with E2 Consulting Engineers for the Industrial Wastewater Treatment Facility Expansion Project.
City of Salinas Page 1 of 1 Printed on 8/2/2023
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CITY OF SALINAS
COUNCIL STAFF REPORT
DATE: AUGUST 8, 2023
DEPARTMENT: PUBLIC WORKS
FROM: DAVID JACOBS, DIRECTOR
BY: BRIAN FRUS, SENIOR ENGINEER
TITLE: AMENDMENT TO THE PROFESSIONAL SERVICES
AGREEMENT BETWEEN E2 CONSULTING ENGINEERS AND
THE CITY OF SALINAS FOR THE INDUSTRIAL WASTEWATER
TREATMENT FACILITY EXPANSION PROJECT
RECOMMENDED MOTION:
A motion to approve a Resolution approving an Amendment to the Professional Services Agreement in the amount of $138,300 for a total compensation not to exceed $1,269,300.00 between the City of Salinas and E2 Consulting Engineers for the Industrial Wastewater Treatment Facility Expansion Project.
BACKGROUND:
The City of Salinas owns and operates an Industrial Wastewater Collection and Conveyance System (IWCCS) which takes agricultural process water from 26 industries. The system is comprised of a network of piping, and pump station, which covey wastewater to the Industrial Waste Treatment Facility (IWTF) for treatment and disposal.
On June 14, 2022, the City Council authorized an agreement for $1,131,000 with E2 Consulting Engineers to perform design services for the Industrial Wastewater Treatment Facility Expansion Project (Resolution No. 22383).
Over the course of conducting the Industrial Wastewater Treatment Facility Expansion efforts, staff was made aware of certain tasks that are required that were not in the original scope of work.
These include: extension of a distribution pipeline to the Salinas Pond 3 Pump Station and the related revision of the hydraulics and electrical and instrumentation drawings, elimination of the Pond 3 Forebay and related design elements, modification of the pump station wet well and valve vault along with related revisions to the plan and profile drawings as required. The additional scope represents a net increase of $138,300 to the original agreement.
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CEQA CONSIDERATION:
Not a Project. The City of Salinas has determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA) (CEQA Guidelines Section 15378).
STRATEGIC PLAN INITIATIVE:
The proposed project and agreement meet the City Council’s goal of Infrastructure and Environmental Sustainability (City of Salinas Strategic Plan 2022-2025) by improving City facilities.
DEPARTMENTAL COORDINATION:
This project has relied on coordination between the Wastewater and Water, Waste and Energy (WWE) divisions in Public Works. WWE has coordinated the overall execution of the IWTF expansion efforts with input and field support from Wastewater Division staff.
FISCAL AND SUSTAINABILITY IMPACT:
The total increased cost for the additional scope of work in the corresponding Amended and Restated Professional Services Agreement is $138,300.
A total of $1,000,000 have been appropriated to Outside Services Professional Services, account 5800.50.9338 – 63.5010 by means of a Fiscal Year 22-23 Available Fund Balance transfer. Thus, there are sufficient funds available for the increased cost of this amendment.
ATTACHMENTS:
Resolution
Amendment No. 1 to Agreement for Professional Services for Environmental Consultants/Contractors, City of Salinas and E2 Consulting Engineers for the Industrial Wastewater Treatment Facility Expansion Project
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RESOLUTION NO. (N.C.S.)
A RESOLUTION APPROVING AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN E2 CONSULTING ENGINEERS AND THE
CITY OF SALINAS FOR THE INDUSTRIAL WASTEWATER TREATMENT
FACILITY EXPANSION PROJECT
WHEREAS, the City of Salinas owns and operates an Industrial Wastewater Collection and Conveyance System; and
WHEREAS, on June 14, 2022, the City Council authorized an agreement for $1,131,000 with E2 Consulting Engineers to perform design services for the Industrial Wastewater Treatment Facility Expansion Project (Resolution No. 22383); and
WHEREAS, over the course of conducting the Industrial Wastewater Treatment Facility Expansion Project, additional services have been required that were not in the original scope of work; and
WHEREAS, the additional scope represents a net increase of $138,300 to the original agreement; and
WHEREAS, an Amendment to the Professional Services Agreement was drafted to reflect these changes.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SALINAS, that Amendment No 1 to the Professional Services Agreement between the City of Salinas and E2 Consulting Engineers to provide professional services related to the Industrial Wastewater Treatment Facility Expansion Project (CIP 9338) in the amount of $138,300 for a total compensation not to exceed of $1,269,300 is hereby approved; and BE IT FURTHER RESOLVED that the Mayor of Salinas is hereby authorized and directed, for and on behalf of the City of Salinas, and as its act and deed, to execute the attached Amendment No 1 to the Professional Services Agreement. between the City of Salinas, a Charter City, and E2 Consulting Engineers, Inc., a California Corporation; and BE IT FURTHER RESOLVED that the City Manager or his designee is authorized to execute extensions and/or non-substantial modifications to the Agreement, as necessary.
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PASSED AND APPROVED this 8
th day of August 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
_______________________
Kimbley Craig, Mayor
ATTEST:
_________________________
Patricia M. Barajas, City Clerk
Version: November 2022
AGREEMENT —AMENDMENT NO. 1 TO
AGREEMENT FOR PROFESSIONAL SERVICES FOR ENVIRONMENTAL CONSULTANTS/CONTRACTORS
BETWEEN
E2 CONSULTING ENGINEERS AND CITY OF SALINAS
This Amendment No. 1 to the Agreement for Professional Services (the “Amendment”) is entered into this 8th day of August 2023, by and between the City of Salinas (the “City”) and E2 Consulting Engineers, (the “Consultant”). City and Consultant may be individually referred to herein as a “Party” and collectively the City and Consultant may be referred to as the “Parties.”
RECITALS
WHEREAS, the City and Consultant first entered into an Agreement for Professional Services for Environmental Consultants/Contractors effective June 14th, 2022, pursuant to which Consultant agreed to act as and provide certain services to the City for compensation (the “Agreement”); and WHEREAS, the City and Consultant desire to amend the Agreement to reflect an additional scope of services provided by Consultant, and to reflect the revised compensation to be paid to Consultant.
NOW, THEREFORE, in mutual consideration of the terms and conditions set forth below, the Parties agree as follows:
TERMS
l. The Agreement, 1. Scope of Service section, is amended and restated in its entirety as follows:
1. Scope of Service. The project contemplated and the scope of Consultant’s services are described in Exhibits B and B1, attached hereto and incorporated herein by reference.
II. The Agreement, 3. Compensation section, is amended and restated in its entirety as follows:
2. Compensation. City hereby agrees to pay Consultant for services rendered the City pursuant to this Agreement on a time and materials basis according to the rates of compensation set forth in Exhibits B, and B1. The total amount of compensation to be paid under this Agreement shall not exceed one million, two hundred sixty‐nine thousand three hundred dollars ($1,269,300).
III. All other covenants, terms, and conditions set forth in the Agreement and not amended by this Amendment shall remain in full force and effect as if fully set forth herein.
Version: November 2022
IN WITNESS WHEREOF, the undersigned, as authorized representatives of the City and Consultant have entered into this Agreement as of the date first written above.
CITY OF SALINAS
___________________________________
Steven S. Carrigan, City Manager
APPROVED AS TO FORM:
___________________________________
□ Christopher A. Callihan, City Attorney
□ Rhonda Combs, Assistant City Attorney
E2 CONSULTING ENGINEERS
____________________________________
Vinod Badani
Vice President, E2 Consulting Engineers, Inc.
E2 Consulting Engineers, Inc. | 2100 Powell Street, Suite 850 | Emeryville, CA 94608 510.652.1164 main | 510.355.3611 fax | www.e2.com
April 29, 2022
Mr. Brian Frus, PE
Water, Waste and Energy Division Manager
City of Salinas Public Works Department
200 Lincoln Avenue
Salinas, CA 93901
Subject: Proposal to provide Engineering Services for Improvements to IWTF Preliminary Design, Final Design and Bidding Phase Services Dear Brian,
E2 Consulting Engineers, Inc. (E2) is pleased to submit proposal for the requested professional services for the City’s Industrial Wastewater Treatment Facility (IWTF) Improvements.
Improvements at IWTF are anticipated in three separate construction contracts. Three Construction Contracts are:
Contract 1 – Improvements to Existing Aeration Lagoon and New Aeration Lagoon in Pond 1 Contract 2 – Pond Automation and Flow Distribution and Pond 3 Pump Station Up-Grade Contract 3 – Aeration VFD and Back-Up Power
Scope of Project for IWTF Improvements is summarized in Attachment A-1.
Scope of Work for each Construction Contract is provided in Attachment A-2.
Engineering costs for each construction contract is provided in Attachments B-1, B-2 and B-2.
Schedules of Professional Rates are provided in Exhibits B-1 and B-2 E2 has a clear understanding of the City of Salinas’ (City’s) objectives and goals for this project.
E2 and Frisch Engineering Inc. has provided engineering services at this facility in the past and are very familiar with past improvements and City’s requirements.
Key lead members of our proposed team are Vinod Badani, Loren Weinbrenner, Drew McIntyre, Joe Reichenberger and Tom Frisch of Frisch Engineering Inc.
Key members of the E2 team have been working together on water and wastewater projects in Monterey County for more than 30 years. Among those projects are many sponsored by the City of Salinas and M1W. The E2 team is highly familiar with the unique characteristics of the area, City’s preferences and how these conditions affect the delivery and performance of engineered projects.
Proposal to provide Engineering Services for Improvements to IWTF April 29, 2022
2 E2 is proud of having excellent working relations with its clients and proves this by repeated work with the same clients over many years. It is the culture of E2 leadership to listen to clients to understand their interests, discuss preferred operational strategies, offer suggestions and explanations for solutions to project challenges, and be responsive to the client feedback. We encourage you to contact our references to verify how we work cooperatively with our clients to deliver projects.
We look forward to continuing our relationship with the City of Salinas Public Works Department.
If need any additional information, please contact me at 510-754-6560 Thanks you very much.
Sincerely,
Vinod M. Badani, P.E.
Vice President
Attachment A-1 – Page 1
ATTACHMENT A-1
City of Salinas – IWTF Improvements
SCOPE OF PROJECT
City of Salinas (City) has identified improvements required for the existing Industrial Wastewater Treatment Facility (IWTF). Recommended components for improvements are as described below:
A. Project Components – Improvements at IWTF
1. Existing Aeration Lagoon Improvements. The existing Aeration Lagoon currently has twelve (12) 50-hp surface aerators installed. To meet existing treatment capacity, City staff has recommended replacing four (4) aerators with new units of the same capacity as the existing aerators. In addition, City staff is also recommending the existing electrical and communication systems be upgraded.
2. New Aeration Lagoon. An additional Aeration Lagoon is required to meet the required treatment during winter flows. An additional lagoon volume of 15 MG is required. The new Aeration Lagoon will be constructed within the existing percolation Pond 1 by constructing a new berm within Pond 1. The new aeration lagoon will have five (5) new aerators of the same capacity as in the existing Lagoon (50-hp each). Electrical and communication improvements made under item 1 above, will be designed to incorporate requirements for the new Aeration Lagoon.
3. Pond Automation and Flow Distribution. This component includes facilities for additional automation that will enhance plant monitoring and operation. The proposed improvements include new piping/valves, level controls, slide gates and electrical/communication. Two such packages are anticipated, one between Pond 1 and Pond 2 and the second between Pond 2 and Pond 3. Alternatives for accomplishing the same monitoring and operations improvements will be evaluated during the preliminary design phase of this project.
4. Pond 3 Pump Station Up-Grade. The existing Pond 3 Pump Station currently has only one pumping unit. To provide more reliability of the system, it has been recommended that an additional pump of the same capacity as the existing pump be installed. Pond 3 Pump Station was designed and constructed to accommodate future installation of two additional pumps of the same capacity as the first.
5. VFD Up-Grades to Aerators. City has identified the need to install Variable Frequency Drives (VFDs) on the aerators, existing and new. The addition of these VFDs will allow for a more efficient operation which will lead to operational cost savings.
6. Back-Up Power. The current IWTF does not have emergency standby power. City plans to add an emergency generator to the IWTF to increase facility reliability/resiliency and ensure uninterrupted wastewater conveyance in the
Attachment A-1 – Page 2
event of power outages. The required kilowatt capacity of emergency generator will be determined during the preliminary design phase of this component.
B. Construction Contracts. Three separate construction contract packages (Project Manuals consisting of front-end documents, general conditions, plans and specifications) will be prepared for the proposed improvements at the IWTF. Three separate construction packages will include project elements as described below:
Construction Package 1: Includes improvements to the Existing Aeration Lagoon and New Aeration Lagoon in Pond 1. (Project components 1 and 2 described above).
Construction Package 2: Includes new Pond Automation and Flow Distribution component and the Pond 3 Pump Station Up-Grade. (Project components 3 and 4 described above).
Construction Package 3: This package will include Aeration VFD Up-Grades and Back-up Power components. (Project components 5 and 6 as described above).
C. Construction Documents. Construction documents, Plans and Technical Specifications, specific for each construction contract described above, will be prepared. City will provide documents related to Bidding Requirements, Contracting Requirements and Conditions of Contract. These documents will be amended specific to each construction package and will be incorporated into the Project Manual (with the Technical Specifications) for each construction contract.
City has requested Consultant provide the scope of work and associated engineering costs for each construction packages. Engineering services will be provided in three phases as listed below:
1. Phase 1: Preliminary Design
2. Phase 2: Final Design
3. Phase 3: Bidding Phase
In addition to the above, City has requested engineering support be provided for a single Technical Project Report that will support the SRF program grant application.
The Scope of Work for Improvements to the IWTF is provided in Attachment A-2; engineering costs for each construction package is provided in Attachment B.
ATTACHMENT A-2
City of Salinas – IWTF Improvements
SCOPE OF WORK
Scope of Work
Scope of Work for each project component identified in the Scope of Project (Attachment A-1) is described below:
TASK 1 – DESIGN OF IMPROVEMENTS TO EXISTING AERATION LAGOON AND NEW
AERATION LAGOON
This task includes the following components as part of design and construction. 9 Electrical Improvements:
o Replacement 12kv distribution system. To include connection for future generator.
o Feeders to existing aerators (PDC-A and PDC-B)
o Feeder to new aerator pond (PDC-D)
o Feeder to existing influent pump station (PDC-C)
o New substations and motor controls at each PDC aeration location 9 Replacement of four (4) new 50hp aerators within existing Aeration Lagoon. 9 New Aeration Lagoon (Volume 15 MG)
9 Five (5) new aerators (in new Aeration Lagoon)
9 Electrical PLC controls and communications for new and existing Aeration Lagoon Facilities
SUBTASK 1.1 PROJECT MANAGEMENT AND COORDINATION AND SRF FUNDING
APPLICATION - TECHNICAL SUPPORT
SUBTASK 1.1.1 – PROJECT MANAGEMENT AND COORDINATION
E2 will provide effective management throughout the duration of the design work to ensure a finished project of the highest quality constructed within the budget and time limits that have been established for this project. Collaboration and effective communication between the City and E2 will be crucial in meeting these goals. This will be facilitated through monthly coordination meetings over the duration of the project, beginning with a project commencement and user group meeting that includes City Operations Staff. Key issues arising between monthly coordination meetings can be addressed by periodic conference calls. Minutes from monthly coordination meetings and documentation of consensus established for key issues will be provided by E2 on a timely basis.
E2 will review with City staff relevant documents prepared earlier for Electrical/Communication Improvements to confirm requirements.
Deliverables:
9 Minutes of meetings and teleconferences, report(s) of consensus established for key issues and other such documents and letters as are necessary for communication and memorialize decisions made with City as work progresses.
SUBTASK 1.1.2 – SRF FUNDING APPLICATION - TECHNICAL SUPPORT Support Carollo and the City in preparation of SRF Funding Application. Effort will include providing technical details to be incorporated within the Technical Project Report, submittal of which is a requirement of the SRF Funding Application. Technical Project Report will be prepared by Carollo.
SUBTASK 1.2 – PROJECT KICK-OFF MEETING AND SITE VISIT
E2 will attend a project commencement (Kick-Off) meeting with City Engineering Staff (and Carollo project staff) to discuss the project and meet with Operations and Maintenance Staff to discuss project requirements and goals. A site visit will be conducted following the kick-off meeting.
Deliverables:
9 Prepare Commencement Meeting Agenda and Report on Decisions Made and assigned Follow-Up Actions
SUBTASK 1.3 – DATA GATHERING, INSPECTION, FIELD SURVEYING AND REVIEW E2 will with due diligence collect and review background project reports, records, data, maps, and other documents relevant to defining the limits and the scope of the project design. We also will identify the anticipated tests and evaluations that will be needed to complete the design.
City will be provided relevant documents. During the site visit following the kick-off meeting, and when conducting other site visits as deemed appropriate, we will field verify as-built conditions, (to the extend these can be determined from visual observation) and will make necessary modifications to the existing drawings of any variances observed during the field trip. We will arrange additional field trips during the design process to assure that proposed modifications are feasible and constructible. Additional field surveying is anticipated to be necessary and will be identified during and immediately following the site visit.
SUBTASK 1.4 – PLANS, SPECIFICATIONS & ESTIMATES
All designs prepared by E2 will be in accordance with City of Salinas Design and Construction Standards and other applicable standards, such as California Building, Electrical, Mechanical, Plumbing, and Fire Codes, Standard General Conditions of the Construction Contract documents to be provided by the City, and Caltrans Standard Plans and Specifications.
Drawings shall be prepared using the latest version of AutoCAD.
Technical Specifications will be developed for the Project Manual using the current Construction Specifications Institute (CSI) document format and will include City front end bidding and contract documents.
The Work for this Task 1 will be divided into four phases - 30% design package (Basis of Design Report-BODR), 60% design package, 95% Design Package and final issued for bid documents.
SUBTASK 1.4.1 – THIRTY PERCENT (30%) DESIGN PACKAGE - BODR The 30% level of completion submittal or Basis of Design Report (BODR) shall include:
9 Review of conceptual level report prepared for the City by Carollo. 9 Conduct and present results of Flow and Loading Analysis for Near-Term and LongTerm Flows and Loading 9 Review existing mechanical, electrical/communication systems 9 Identify improvements required
9 Prepare construction cost estimates
9 Summarize findings, conclusions, and recommendations in the BODR 9 Review Meeting(s) with City Staff
9 Final BODR will include City’s comments to the draft BODR. The final BODR will be used to prepare construction documents.
Deliverables:
9 Draft PDF copy of BODR at 90% level
9 Engineer’s estimate of probable construction cost at 30% design level. 9 Final PDF Copy of BODR, incorporating City’s comments, including updated construction cost estimates to 30% design level
9 Other required documents.
SUBTASK 1.4.2 – SIXTY- PERCENT (60%) DESIGN PACKAGE
The 60% submittal package will include: all documents in the 30% (BODR) submittal package further advanced and detailed and incorporation of City’s comments from the BODR submittal into the design details.
Deliverables:
9 An agenda for the design review meeting and minutes of the design review meeting.
9 One (1) PDF Copy of half-size drawings.
9 One PDF Copy of Technical Specifications
9 Engineer’s estimate of probable construction cost at 60% design. 9 Other required documents.
SUBTASK 1.4.3 – NINETY-FIVE PERCENT (95%) DESIGN PACKAGE The 95% submittal package will include: all documents in the 60% submittal package further advanced and detailed and incorporation of City’s comments from the 60% design submittal.
An independent review of the construction documents will be completed in conformance with E2’s QA/QC policy.
Deliverables:
9 An agenda for the design review meeting and minutes of the design review meeting. 9 One (1) PDF copy of half-plans
9 One (1) PDF copy of Specifications.
9 Engineer’s estimate of probable construction cost at 95% design level 9 Other required documents
SUBTASK 1.4.4 – FINAL BID DOCUMENTS
With the final bid document submittal, all comments received from City on the 60% and 95% design submittals will be incorporated into the Plans and Specifications. The plans are field checked for accuracy and coordination between disciplines is complete. The technical specifications are complete and ready with the plans to advertise for Bid. Design specific requirements are incorporated into the City’s front-end documents. The engineer’s estimate and project schedule are finalized. A final check will be provided to ensure the independent review comments are responded to and incorporated into the final documents as appropriate. All in conformance with E2’s QA/QC Policy. Final review is undertaken by the City. Anything discovered in this last review will be incorporated into the construction documents; the documents. are now ready for public bid.
Deliverables:
9 Comment Resolution form identifying City comments on 60% and 95% design submittals and respective actions taken by E2.
9 One (1) electronic AutoCAD file of plans.
9 One (1) electronic PDF copy of Plans and Specifications. 9 Final Engineer’s estimate of probable construction cost. 9 Design Calculations in binder and electronic PDF format.
SUBTASK 1.5 – BID PHASE SERVICES
Assist City during the bid phase. Tasks will include the following:
9 Attend a pre-bid conference and assist in preparation of minutes. 9 Respond to inquiries/questions (RFIs) from bidders.
9 Prepare addenda for bid documents as needed to clarify bidder inquiries and amend Contract Documents (Project Manual) as required.
9 Assist City, if requested, to review and evaluate bids and provide a recommendation of award.
9 Prepare Conformed project documents for Construction (Issued for Construction or IFC).
Deliverables:
9 Agenda for Pre-Bid Meeting
9 Minutes of Pre-Bid Meeting
9 Addenda as needed (Assume 2 Addenda)
TASK 2 – DESIGN OF POND AUTOMATION AND FLOW DISTRIBUTION AND POND 3
PUMP STATION UP-GRADE
This task includes the following components as part of design and construction. 9 Construction of two new diversion vaults
9 Conveyance piping, level control, and valves
9 Structures with Slide Gates/Weir Gates to control flow. 9 Instrumentation to measure pond level and water flow pond-to-pond over weir at each location.
9 Electrical/Controls and communications (Use of Solar Farm Power and Radio Communication)
9 Installation of additional one (1) new pump with VFD at existing Pond 3 Pump Station.
Pond 3 Pump Station was designed to add additional two pumps of same capacity as the existing one pump currently installed. Provide additional Mechanical, Electrical/Instrumentation and communication system as required.
SUBTASK 2.1 PROJECT MANAGEMENT AND COORDINATION AND SRF FUNDING APPLICATION – TECHNICAL REPORT
SUBTASK 2.1.1 – PROJECT MANAGEMENT AND COORDINATION
E2 will provide effective management throughout the duration of the design work to ensure a finished project of the highest quality that is constructed within the budget and the time limits that have been established for this project. Collaboration and effective communication between the City and E2 will be crucial in meeting these goals. This will be facilitated through monthly coordination meetings over the duration of the project, beginning with a project commencement and user group meeting with City (including City operations staff) and M1W Operations Staff. Key issues arising between monthly coordination meetings can be addressed by periodic conference calls. Minutes from monthly coordination meetings and documentation of consensus established for key issues will be provided by E2 on a timely basis.
E2 will review with City and M1W staff relevant documents prepared earlier for Electrical/Communication Improvements to confirm requirements and design intent.
Deliverables:
9 Minutes of meetings and teleconferences, report(s) of consensus established for key issues and other such documents and letters as are necessary for communication with City and memorialize decisions made as work progresses.
SUBTASK 2.1.2 – SRF FUNDING APPLICATION - TECHNICAL SUPPORT Support Carollo and the City in preparation of SRF Funding Application. This will include providing technical details to be incorporated within the Technical Project Report.
Technical Report will be prepared by Carollo.
SUBTASK 2.2 – PROJECT KICK-OFF MEETING AND SITE VISIT
E2 will attend a project commencement (Kick-Off) meeting with City/M1W Staff to discuss the project and meet with Operations and Maintenance Staff to discuss project requirements and goals. A site visit will be conducted following the kick-off meeting.
Deliverables:
9 Prepare Commencement Meeting Agenda and Report on Decisions Made and required Follow-Up Actions
SUBTASK 2.3 – DATA GATHERING, INSPECTION, FIELD SURVEYING AND REVIEW E2 will with due diligence collect and review background project reports, records, data, maps, and other documents relevant to defining the limits and the scope of the project design for Task
2. City/M1W has provided relevant documents. During the site visit following the kick-off meeting, and in other site visits as deemed appropriate, we will field verify as-built conditions and will make necessary modifications to the existing drawings of any variances observed during the field trip. We will arrange additional field trips during the design process to assure that proposed modifications are beneficial and constructible. Some additional surveying may be required for the Pond Automation and Flow Distribution component of this Project. E2 will verify after site visit.
SUBTASK 2.4 – PLANS, SPECIFICATIONS & ESTIMATES
All designs prepared by E2 will be in accordance with City of Salinas Design and Construction Standards and other applicable standards, such as California Building, Electrical, Mechanical, Plumbing, and Fire Codes, Standard General Conditions of the Construction Contract documents to be provided by the City, and Caltrans Standard Plans and Specifications.
Drawings shall be prepared using the latest version of AutoCAD.
Technical Specifications will be developed using the current Construction Specifications Institute (CSI) document format and will include City front end bidding and contract documents.
The Work for Task 2 will be divided into three phases - 50% design package, 90% design package, and final bid documents.
SUBTASK 2.4.1 – FIFTY PERCENT (50%) DESIGN PACKAGE
SUBTASK 2.4.2 – NINETY- PERCENT (90%) DESIGN PACKAGE
The 90% submittal package will include: all documents in the 50% design submittal package further advanced and detailed and incorporation of City’s comments from the 50% design submittal.
Deliverables:
9 An agenda for the design review meeting and minutes of the design review meeting.
9 One (1) PDF Copy of half-size drawings.
9 One PDF Copy of Technical Specifications
9 Engineer’s estimate of probable construction cost to 90% design level. 9 Other required documents.
9 Comment / Comment Resolution Log
SUBTASK 2.4.3 – FINAL BID DOCUMENTS
With the final bid document submittal, all comments received from City on the 50% and 90% design submittals will be incorporated into the Plans and Specifications. The plans are field checked for accuracy and coordination between disciplines is complete. The technical specifications are complete and ready with the plans to advertise for Bid. The engineer’s estimate and project schedule are finalized. Final review is undertaken by the City. Anything discovered in this last review will be amended into the construction documents and the documents are now ready for public bid.
Deliverables:
9 Comment Resolution log identifying City comments on 60% and 95% design submittals and respective actions taken by E2.
9 One (1) electronic AutoCAD of plans.
9 One (1) electronic PDF copy of Plans and Technical Specifications. 9 Final Engineer’s estimate of probable construction cost. 9 Design Calculations in binder and electronic PDF format.
SUBTASK 2.5 – BID PHASE SERVICES
Assist City during bid phase service. Tasks will include the following:
9 Attend a pre-bid conference.
9 Respond to inquiries/questions (RFIs) from bidders.
9 Prepare addenda for bid documents as needed to clarify bidder inquiries and amend P/S as needed.
9 Assist City, if requested, to review and evaluate bids. 9 Prepare Conformed project documents for Construction (Issued for Construction or IFC).
Deliverables:
9 Agenda for Pre-Bid Meeting
9 Minutes of Pre-Bid Meeting
9 Addenda as needed (Assume 2 Addenda)
TASK 3 – DESIGN OF VFD UP-GRADE TO AERATORS AND BACK-UP POWER This task includes the following components as part of design and construction. 9 Electrical/Instrumentation Modifications to install VFDs on all Aerators. (Total of 17, 12 for existing Aeration Lagoon and five for New Aeration Lagoon constructed under Task 1 Projects.
9 Addition of emergency generator(s) to provide automatic uninterrupted back-up power for IWTF t for wastewater conveyance and treatment during a power outage.
SUBTASK 3.1 PROJECT MANAGEMENT AND COORDINATION AND SRF FUNDING APPLICATION – TECHNICAL PROJECT REPORT
SUBTASK 3.1.1 – PROJECT MANAGEMENT AND COORDINATION
E2 will provide effective management throughout the duration of the design work to ensure a finished project of the highest quality that is constructed within the budget and the time limits that have been established for this project. Collaboration and effective communication between the City and E2 will be crucial in meeting these goals. This will be facilitated through monthly coordination meetings over the duration of the project, beginning with a project commencement and user group meeting with City Engineering and Operations Staff. Key issues arising between monthly coordination meetings can be addressed by periodic conference calls. Minutes from monthly coordination meetings and documentation of consensus established for key issues will be provided by E2 on a timely basis. On the latter, a comment / comment resolution log will be kept memorializing decisions and actions taken.
Deliverables:
9 Minutes of meetings and teleconferences, report(s) of consensus established for key issues and other such documents and letters as are necessary for communication with City as work progresses to memorialize actions taken.
SUBTASK 3.1.2 – SRF FUNDING APPLICATION - TECHNICAL SUPPORT Support Carollo and the City in preparation of SRF Funding Application. This will include providing technical details to be incorporated within the Technical Project Report. The Technical Project Report will be prepared by Carollo.
SUBTASK 3.2 – PROJECT KICK-OFF MEETING AND SITE VISIT
E2 will attend a project commencement (Kick-Off) meeting with City Staff to discuss the project and meet with Operations and Maintenance Staff to discuss project requirements and goals. A site visit will be conducted following the kick-off meeting.
Deliverables:
9 Prepare Commencement Meeting Agenda and Report on Decisions Made and FollowUp Actions required SUBTASK 3.3 – DATA GATHERING, INSPECTION AND REVIEW
E2 will with due diligence collect and review background project reports, records, data, maps, and other documents relevant to defining the objectives (intent??) and the scope of the project design. During the site visit following the kick-off meeting, and in other site visits as deemed appropriate, we will field verify as-built conditions and will make necessary modifications to the existing drawings of any variances observed during the field trip. We will arrange additional field trips during the design process to assure that proposed modifications meet the design intent and are constructible.
SUBTASK 3.4 – PLANS, SPECIFICATIONS & ESTIMATES
All designs prepared by E2 will be in accordance with City of Salinas Design and Construction Standards and other applicable standards, such as California Building, Electrical, Mechanical, Plumbing, and Fire Codes, Standard General Conditions of the Construction Contract documents to be provided by the City, and Caltrans Standard Plans and Specifications.
Drawings shall be prepared using the latest version of AutoCAD.
Technical Specifications will be developed using the current Construction Specifications Institute (CSI) document format and will include City front end bidding and contract documents.
The Work for Task 3 will be divided into three phases - 50% design package, 90% design package, and final bid documents.
SUBTASK 3.4.1 – FIFTY PERCENT (50%) DESIGN PACKAGE
The 50% level of completion submittal shall include: draft construction drawings for the Task 2 project component; an engineer’s estimate of probable construction cost to 50% design level; a project schedule for all project Tasks; applicable support documentation for permits, and all other required documents.
Deliverables:
9 An agenda for the design review meeting and minutes of the design review meeting. 9 One (1) PDF copy of half-size drawings.
9 One (1) PDF copy of Technical Specifications.
9 Engineer’s estimate of probable construction cost to 50% design level.
9 Other required documents.
SUBTASK 3.4.2 – NINETY- PERCENT (90%) DESIGN PACKAGE
The 90% submittal package will include: all documents in the 50% design submittal package further advanced and detailed and incorporation of City’s comments from the 50% design submittal.
Deliverables:
9 An agenda for the design review meeting and minutes of the design review meeting.
9 One (1) PDF Copy of half-size drawings.
9 One PDF Copy of Technical Specifications.
9 Engineer’s estimate of probable construction cost to 90% design level. 9 Updated Client Comment / Comment Resolution log.
9 Other required documents.
SUBTASK 3.4.3 – FINAL BID DOCUMENTS
With the final bid document submittal, all comments received from City on the 50% and 90% design submittals will be incorporated into the Plans and Specifications. The plans are field checked for accuracy and coordination between disciplines is completed. The technical specifications are complete and ready with the plans to advertise for Bid. Amendments to the City’s front-end documents relevant to the specific design scope are submitted to the City.
The engineer’s estimate and project schedule are finalized. Final review is undertaken by the City. Anything discovered in this last review will be amended into the construction documents and the documents are now ready for public bid.
Deliverables:
9 Comment / Comment Resolution log identifying responses to City comments on 60% and 95% design submittals and respective actions taken by E2. 9 One (1) electronic AutoCAD of plans.
9 One (1) electronic PDF copy of Plans and Technical Specifications. 9 Final Engineer’s estimate of probable construction cost. 9 Design Calculations in binder and electronic PDF format.
SUBTASK 3.5 – BID PHASE SERVICES
Assist City during bid phase service. Tasks will include the following:
9 Attend a pre-bid conference.
9 Respond to inquiries/questions (RFIs) from bidders.
9 Prepare addenda for bid documents as needed to clarify bidder inquiries and amend P/S as needed.
9 Assist City, if requested, to review and evaluate bids. 9 Prepare Conformed project documents for Construction (Issued for Construction or IFC).
Deliverables:
9 Agenda for Pre-Bid Meeting
9 Minutes of Pre-Bid Meeting
9 Addenda as needed (Assume 2 Addenda)
9 IFC Plans and Specifications
]
Project
ManagerVinod
Technical
Director - Joe
Reichenberger
Principal
EngineerLoren/Drew
McIntyre
Specialist IIIBill Harris,
Mark Davis
Specialist
II - Priya
Kumar
Total
Labor
Hours
Total Labor Cost Other Direct
Costs Total Cost E2
Principal
Engineer -
Tom Frisch
Senior
Engineer
Senior
Designer
Junior
Designer
Associate
Designer
Total
Labor
Hours
Total Labor Cost Other Direct
Costs Total Cost
Hourly Rate $ 200.00 240.00 $ 175.00 $ 125.00 $ 80.00 $ $230.00 $215.00 $185.00 $160.00 $130.00 Task No. Task Description
1 1.1.1 - Project Management and Coordination 40 24 20 84 15,400 $ - $ $15,400 8 4 12 $2,700 $2,700 18,370 $
1.1.2 - SRF Funding Application - Technical
Support 40 16 40 96 19,800 $ - $ $19,800 16 4 20 $4,540 $4,540 24,794 $
1.2 - Project Kick-off Meeting and Site Visit 12 12 24 4,980 $ 300 $ $5,280 12 4 16 $3,620 $300 $3,920 9,592 $
1.3 - Data Gathering, Inspection, Field Surveying
and Review 8 16 18 42 6,970 $ 10,000 $ $17,970 16 8 24 $4,720 $4,720 23,162 $
1.4 - Plans, Specifications and Estimates 224 140 528 576 0 1468 246,160 $ 500 $ 246,660 $ 116 164 232 415.5 114 1041.5 186,160 $ 600 $ 186,760 $ 452,096 $
1.4.1 - Thirty Percent Design Package - BODR 20 52 128 96 0 296 49,600 $ $ - $49,600 8 28 40 76 18 170 $29,680 $29,680 82,248 $
1.4.2 - Sixty Percent Design Package 120 40 200 200 560 96,800 $ 500 $ $97,300 60 60 108 188 48 464 $83,000 $600 $83,600 189,260 $
1.4.3 - Ninety-Five Percent Design Package 60 40 120 200 420 $ - 68,400 $ $68,400 32 60 60 104 32 288 $52,160 $52,160 125,776 $
1.4.4 - Final Bid Documents 24 8 80 80 192 $ - 31,360 $ $31,360 16 16 24 48 16 120 $21,320 $21,320 54,812 $
1.5 - Bid Phase Services 26 0 64 16 0 106 19,440 $ 250 $ 19,690 $ 12 20 0 24 0 56 10,900 $ 900 $ 11,800 $ 32,670 $
1.5.1 - Attend Pre-Bid Conference 8 8 16 $ 3,320 $ - $3,320 12 12 $2,760 $600 $3,360 7,016 $
1.5.2 - Respond to Inquiries/Questions from
Bidders 8 24 32 $ - 6,120 $ $6,120 8 8 16 $3,000 $3,000 9,420 $
1.5.3 - Prepare Addenda for Bid Documents 4 24 28 5,160 $ - $ $5,160 8 8 16 $3,000 $3,000 8,460 $
1.5.4 - Assist City to review and evaluate Bids 4 0 4 960 $ - $ $960 0 $0 $0 960 $
1.5.5 - Prepare Conformed Project Documents
for Construction 28 16 26 $ 250 3,880 $ $4,130 4 8 12 $2,140 $300 $2,440 6,814 $ Total for Task 1 350 156 684 610 20 1820 312,750 $ 11,050 $ 324,800 $ 164 212 232 447.5 114 1170 212,640 $ 1,800 $ 214,440 $ 560,684 $ Design Improvements to Existing Aeration Lagoon and New Aeration Lagoon ATTACHMENT B-1
City of Salinas - Engineering Services for Industrial Waste Treatment Facility Improvements -Task 1 - Design Improvements to Existing Aeration Lagoon and New Aeration Lagoon ESTIMATE OF ENGINEERING SERVICES FEES - TASK 1 (Revised 5-22-2022) E2 Consulting Engineers, Inc. Frisch Engineering
Total Cost E2 +
Frisch*1.10
PBCSD/Assignment No.33 Attachment B 3/16/13
]
Project
Manager-Vinod
Badani
Technical
Director - Joe
Reichenberger
Principal
Engineer -
Loren
Weinbrenner
Specialist
III-Bill
Harris, Mark
Davis
Specialist
II - Priya
Kumar
Total
Labor
Hours
Total Labor Cost Other Direct
Costs Total Cost E2 Principal Engineer
Senior
Engineer
Senior
Designer
Junior
Designer
Associate
Designer
Total
Labor
Hours
Total Labor
Cost
Other Direct
Costs Total Cost
Hourly Rate $ 200.00 240.00 $ 175.00 $ 125.00 $ 80.00 $ $230.00 $215.00 $185.00 $160.00 $130.00 Task No. Task Description
2 2.1.1 - Project Management and Coordination 24 24 48 7,680 $ - $ $7,680 8 8 $1,720 $1,720 9,572 $
2.1.2 - SRF Funding Application - Technical
Support 16 16 32 6,640 $ - $ $6,640 12 4 16 $3,620 $3,620 10,622 $
2.2 - Project Kick-off Meeting and Site Visit 8 12 20 4,020 $ 300 $ $4,320 12 4 16 $3,620 $300 $3,920 8,632 $
2.3 - Data Gathering, Inspection, Field Surveying
and Review 8 8 16 3,320 $ 6,000 $ $9,920 4 16 4 24 $5,000 $5,000 15,420 $
2.4 - Plans, Specifications and Estimates 136 16 280 320 0 752 124,840 $ - $ 124,840 $ 80 88 56 116 24 364 69,360 $ 200 $ 69,560 $ 201,356 $
2.4.1 -Fifty Percent Design Package 60 8 120 160 0 348 57,000 $ $ - $57,000 32 40 24 40 8 144 $27,840 $200 $28,040 87,844 $
2.4.2 - Ninety Five Percent Design Package 60 80 120 260 43,400 $ - $ $43,400 24 24 32 60 16 156 $28,280 $28,280 74,508 $
2.4.3 - Final Bid Documents 16 8 80 40 144 24,440 $ - $ $24,440 24 24 16 64 $13,240 $13,240 39,004 $
2.5 - Bid Phase Services 24 0 64 24 0 112 19,960 $ 650 $ 20,610 $ 12 20 0 24 0 56 10,900 $ 500 $ 11,400 $ 33,150 $
2.5.1 - Attend Pre-Bid Conference 16 16 2,800 $ 150 $ $2,950 12 12 $2,760 $300 $3,060 6,316 $
2.5.2 - Respond to Inquiries/Questions from
Bidders 8 16 24 4,720 $ - $ $4,720 8 8 16 $3,000 $3,000 8,020 $
2.5.3 - Prepare Addenda for Bid Documents 8 24 32 6,120 $ - $ $6,120 8 8 16 $3,000 $3,000 9,420 $
2.5.4 - Assist City to review and evaluate Bids 4 4 960 $ - $ $960 0 $0 $0 960 $
2.5.5 - Prepare Conformed Project Documents
for Construction 4 8 24 36 5,360 $ 500 $ $5,860 4 8 12 $2,140 $200 $2,340 8,434 $ Total for Task 2 216 16 380 344 24 980 166,460 $ 6,950 $ 174,010 $ 120 140 56 144 24 484 94,220 $ 1,000 $ 95,220 $ 278,752 $ Design of Pond Automation and Flow Distribution and Pond 3 Pump Station Up-Grade ATTACHMENT B-2
City of Salinas - Engineering Services for Industrial Waste Treatment Facility Improvements -Task 2 - Design of Pond Automation and Flow Distribution and Pond 3 Pump station Up-grade ESTIMATE OF ENGINEERING SERVICES FEES - TASK 2
E2 Consulting Engineers, Inc. Frisch Engineering
Total Cost E2 +
Frisch*1.10
PBCSD/Assignment No.33 Attachment B 3/16/13
]
Project
Manager-Vinod
Technical
Director - Joe
Reichenberger
Principal
EngineerLoren
Specialist IIIBill
Specialist
II - Ilona
Total
Labor
Hours
Total Labor
Cost
Other Direct
Costs Total Cost E2 Principal
Engineer
Senior
Engineer
Senior
Designer
Junior
Designer
Associate
Designer
Total
Labor
Hours
Total Labor
Cost
Other Direct
Costs Total Cost
Hourly Rate $ 200.00 240.00 $ 175.00 $ 125.00 $ 80.00 $ $230.00 $215.00 ###### $160.00 $130.00 Task No. Task Description
3 3.1.1 - Project Management and Coordination 8 12 20 $ - 2,880 $ $2,880 8 4 12 $2,700 $2,700 5,850 $
3.1.2 - SRF Funding Application - Technical
Support 16 4
3.2 - Project Kick-off/Workshop Meeting and Site
Visit 4 4 8 1,660 $ - $ $1,660 12 4 16 $3,620 $300 $3,920 5,972 $
3.3 - Data Gathering, Inspection and Review 4 4 8 1,660 $ - $ $1,660 16 8 24 $4,720 $4,720 6,852 $
3.4 - Plans, Specifications and Estimates 164 40 240 280 0 724 124,360 $ - $ 124,360 $ 88 88 128 208 48 560 102,360 $ 600 $ 102,960 $ 237,616 $
3.4.1 - Fifty Percent Design Package 80 16 120 160 0 376 $ 63,400 $ - $63,400 40 40 80 120 32 312 $55,960 $600 $56,560 125,616 $
3.4.2 - Ninety Five Percent Design Package 60 8 80 80 228 $ - 40,000 $ $40,000 40 40 40 80 8 208 $39,040 $39,040 82,944 $
3.4.3 - Final Bid Documents 24 16 40 40 120 20,960 $ - $ $20,960 8 8 8 8 8 40 $7,360 $7,360 29,056 $
3.5 - Bid Phase Services 32 0 48 16 0 96 18,080 $ 250 $ 18,330 $ 20 24 0 32 0 76 14,880 $ 500 $ 15,380 $ 35,248 $
3.5.1 - Attend Pre-Bid Conference 8 8 16 3,320 $ $3,320 8 8 $1,840 $300 $2,140 5,674 $
3.5.2 - Respond to Inquiries/Questions from
Bidders 8 16 24 4,720 $ - $ $4,720 4 8 8 20 $3,920 $3,920 9,032 $
3.5.3 - Prepare Addenda for Bid Documents 8 16 24 4,720 $ - $ $4,720 4 8 8 20 $3,920 $3,920 9,032 $
3.5.4 - Assist City to review and evaluate Bids 4 4 960 $ - $ $960 0 $0 $0 960 $
3.5.5 - Prepare Conformed Project Documents
for Construction 4 8 16 28 4,360 $ 250 $ $4,610 4 8 16 28 $5,200 $200 $5,400 10,550 $ Total for Task 3 212 40 296 296 12 856 148,640 $ 250 $ 148,890 $ 144 140 128 248 48 688 128,280 $ 1,400 $ 129,680 $ 291,538 $ $ 50,880 $ 8,000 $ 51,800 $ 37,000 $ 960 $ 148,640
Design Aeration VFD Up-Grade and Back-Up Power
ATTACHMENT B-3
City of Salinas - Engineering Services for Industrial Waste Treatment Facility - Design of Aeration VFD Up-Grade and Back-Up Power ESTIMATE OF ENGINEERING SERVICES FEES - TASK 3
E2 Consulting Engineers, Inc. Frisch Engineering
Total Cost E2 +
Frisch*1.10
PBCSD/Assignment No.33 Attachment B 3/16/13
Exhibit B-1
Exhibit B-1
E2 Consulting Engineers, Inc.
Schedule of Professional Rates
for
City of Salinas
Industrial Waste Treatment Facility- Improvements
January 1, 2022, through December 31, 2023
Hourly
Billing
Classification Rate
Engineers
Engineer $ 125.00
Engineer, Principal $ 135.00
Engineer, Supervising (Loren Weinbrenner, Drew McIntyre) $ 185.00
Project Managers/Technical Managers
Technical Specialist (Joe Reichenberger) $ 200.00
Project Manager/ Principal-In-Charge (Vinod Badani) $ 240.00 Technical and Support
Specialist II (Accounting Staff) $ 80.00
Specialist III (CADD Operator) Bill Harris, Mark Davis $ 125.00 GIS Data Base Manager $ 170.00
________________________________________________________________________________ This schedule of professional rates is subject to revision annually. These billing rates cover salary costs, employee benefits, ordinary overhead, and profit. They also cover in-house charges for personal computers (other than CAD and GIS), word processing equipment, and routine communications (including long-distance telephone and fax). Out-of-pocket costs (such as travel and subsistence) are reimbursable at actual cost-plus 10 percent.
Exhibit B-2
Exhibit B-2
Frisch Engineers, Inc.
Schedule of Professional Rates
for
City of Salinas
Industrial Waste Treatment Facility-Improvements
January 1, 2021, through December 31, 2023
Hourly
Billing
Classification Rate
Engineers
Principal Engineer $ 230.00
Senior Engineer $215.00
Designers
Senior Designer $ 185.00
Junior Designer $ 160.00
Associate Designer $ 130.00
__________________________________________________________________________________________
E2 Consulting Engineers, Inc. | 2100 Powell Street, Suite 850 | Emeryville, CA 94608 510.652.1164 main | 510.355.3611 fax | www.e2.com
July 19, 2023
Mr. Brian Frus, PE
Water, Waste and Energy Division Manager
City of Salinas Public Works Department
200 Lincoln Avenue
Salinas, CA 93901
Subject: Additional Engineering Services for Improvements to IWTF Amendment No. 1 –Additional Components to Extend Distribution Pipeline to Salinas Pond 3 Pump Station
Dear Brian,
E2 Consulting Engineers, Inc. (E2) has developed engineering costs to provide design and bid phase services to extend distribution pipeline to the existing Salinas Pond 3 Pump Station (SP3PS). Scope of services to be provided under this Amendment are summarized below:
1. Extend Distribution Pipeline to Salinas Pond 3 Pump Station and revise hydraulics as required.
2. Make provision in distribution pipeline for future construction of Weir Structure No. 37B.
3. Delete construction of Pond 3 Forebay. This includes deletion of the following elements. a. Weir Structure No. 37B
b. New Berm Road
c. Pond 3 Inlet Structure
d. Deletion of Solar Panel Platforms at Weir Structure Nos. 37A, 37B, 29, 30, 35A and 39.
4. Locate new Pump in western slot (P-430).
5. Modify Valve vault.
6. Modify pump station wet well and Valve Vault for distribution pipeline extension. Do not raise the top of existing pump station and valve vault 2-feet above 100-year flood level.
7. Revise Plan and Profile Drawings as required.
8. Modify Electrical and Instrumentation Drawings as required to accommodate items 2, 2 and 4 described above.
9. Revise project manual to accommodate changes listed in this Amendment No. 1
10. Revise construction cost estimates with changes listed in the Amendment No. 1 Estimated engineering costs to provide design and bid phase services is provided in Attachment A, included with this letter.
Thank you very much. If you need additional information, please contact me at 510-754-6560.
Vinod M. Badani, P.E.
Vice President
]
Project
ManagerVinod
Technical
Director - Joe
Reichenberger
Principal
EngineerLoren and
Drew
Specialist
III-Bill
Specialist
II - Priya
Total
Labor
Hours
Total Labor
Cost
Other Direct
Costs Total Cost E2 Principal
Engineer
Senior
Engineer
Associate
Engineer
Senior
Designer
Junior
Designer
Associate
Designer
Total
Labor
Hours
Total Labor Cost Other Direct
Costs Total Cost
Hourly Rate $ 240.00 $ 200.00 $ 175.00 $ 125.00 $80.00 $230.00 $215.00 $165.00 $185.00 $160.00 $130.00 Task No. Task Description
1 1 - Project Management and Coordination 24 12 36 $ 6,720 $ - $6,720 4 4 8 $1,780 $1,780 $ 8,678 2 - Project Meetings 16 16 32 $ 6,640 $ - $6,640 8 4 12 $2,700 $2,700 $ 9,610 4 - Plans, Specifications and Estimates 116 0 180 200 0 496 $ 84,340 $ - $ 84,340 32 0 0 24 40 32 128 $ 22,360 $ - $ 22,360 $ 108,936
4.1 - Fifty Percent Design Package 60 80 80 0 220 $ 38,400 $ - $38,400 16 8 16 16 56 $9,800 $9,800 $ 49,180
4.2 - Ninety Five Percent Design Package 40 60 80 180 $ 30,100 $ - $30,100 8 8 16 8 40 $6,920 $6,920 $ 37,712
4.3 - Final Bid Documents 16 40 40 96 $ 15,840 $ - $15,840 8 8 8 8 32 $5,640 $5,640 $ 22,044 5 - Bid Phase Services 12 0 12 8 0 32 $ 5,980 $ - $ 5,980 8 4 0 0 12 0 24 $ 4,620 $ - $ 4,620 $ 11,062
5.1 - Attend Pre-Bid Conference 0 0 0 $ - $0 0 0 $0 $0 $ -
5.2 - Respond to Inquiries/Questions from
Bidders 4 4 8 $ 1,660 $ - $1,660 4 4 8 $1,560 $1,560 $ 3,376
5.3 - Prepare Addenda for Bid Documents 4 4 8 $ 1,660 $ - $1,660 4 4 8 $1,560 $1,560 $ 3,376
5.4 - Assist City to review and evaluate Bids 0 $ - $ - $0 0 $0 $0 $ -
5.5 - Prepare Conformed Project Documents
for Construction 4 4 8 16 $ 2,660 $2,660 4 4 8 $1,500 $1,500 $ 4,310 Total for Task 1 168 0 208 208 12 596 $ 103,680 $ - 103680 52 12 0 24 52 32 172 $ 31,460 $ - $ 31,460 $ 138,286 $ 40,320 $ - $ 36,400 $ 26,000 $ 960 $ 103,680 ####### $ 2,580 $ - $ 4,440 $ 8,320 $ 4,160 $ 31,460.00 $138,286 Design Upgrade
ATTACHMENT A
City of Salinas - Engineering Services for Industrial Waste Treatment Facility - Design Upgrade - Amendment 1 ESTIMATE OF ENGINEERING SERVICES FEES - Amendment No. 1 E2 Consulting Engineers, Inc. Frisch Engineering
Total Cost E2 +
Frisch*1.10
COS IWTF Improvements-Amendment 1 Attachment A 7/19/2023 City of Salinas
Legislation Text
200 Lincoln Ave., Salinas,
CA 93901
www.cityofsalinas.org
File #: ID#23-484, Version: 1
Agreement with E&D Industrial Trades, Inc. dba ACME Plumbing for Emergency Sewer Lateral Repair at 403 E. Romie Lane
Approve a Resolution authorizing the City Manager or designee to enter into an Agreement for Services for an amount not to exceed $36,040 with E&D Industrial Trades, Inc. dba ACME Plumbing for emergency repair of the sewer lateral at City-owned property located at 403 E. Romie Lane.
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CITY OF SALINAS
COUNCIL STAFF REPORT
DATE: AUGUST 8, 2023
DEPARTMENT: COMMUNITY DEVELOPMENT
FROM: LISA BRINTON, DIRECTOR
THROUGH: ROD POWELL, ACTING ASSISTANT DIRECTOR
BY: MICHAEL GOMEZ, ECONOMIC DEVELOPMENT ANALYST
TITLE: AGREEMENT FOR SERVICES FOR EMERGENCY SEWER
LATERAL REPAIR AT 403 E ROMIE LANE
RECOMMENDED MOTION:
A motion to approve a Resolution authorizing the City Manager or designee to enter into an Agreement for Services for an amount not to exceed $36,040 with E & D Industrial Trades, Inc., doing business as (dba) ACME Plumbing for emergency repair of the sewer lateral at City-owned property located at 403 E. Romie Lane.
EXECUTIVE SUMMARY:
City staff are seeking approval of an Agreement for Services for the emergency repair of the sewer lateral of tenant occupied City-owned residential property at 403 E. Romie Lane (Property). The sewer lateral is an essential part of the Property’s and City’s wastewater infrastructure, carrying waste from the Property to the main sewer system. Left unrepaired, this can lead to further property damage, potential environmental contamination, and an inability to maintain tenant occupancy.
Upon the determination of an emergency by qualified City staff, a certified contractor was hired and began the repair allowing the resident tenants to move back into the property within five (5) days.
BACKGROUND:
On May 1, 2023, the City of Salinas used a portion of its American Rescue Plan Act (ARPA) funding to purchase a residential duplex located at 403 E. Romie Lane (Property) to provide additional affordable housing options within its jurisdiction. As part of the transaction’s due diligence process, a home inspection was commissioned prior to the acquisition which revealed minor maintenance requirements that were subsequently addressed by the seller prior to close of escrow. No major concerns were noted on either the Sellers’ disclosures or the commissioned home inspection and no additional inspections were completed. Following the City’s acquisition of the Property, water softener systems were installed in each unit, a landscaper was contracted to Page | 2
perform initial clean up and maintenance of a small yard area, and new tenant families assumed residency on July 3, 2023.
DISCUSSION:
On July 9, 2023, staff received an emergency notification from the new tenants of first floor flooding. An immediate assessment of the situation determined that the Property’s sewer lateral had collapsed and required immediate repair. Based upon this determination, staff quickly coordinated with ACME plumbing, a frequently used contractor for City facilities, to replace a forty-five-year-old four-inch ceramic sewer lateral with a new four-inch SDR 17 pipe using rapid trenchless technology. Additionally, arrangements were made to temporarily relocate the tenants to a local hotel.
Upon repair of the sewer lateral and subsequent testing of the system, tenants were allowed to return to the units on July 14, 2023. Total cost of the required emergency repair is estimated at $36,040.00. The contractor has completed the sewer lateral replacement and filled the excavated hole in the roadway that was filled with slurry and is temporarily covered with steel plates. The remaining work is to fill the hole with concrete. Upon Council approval of this Agreement for Services the contractor will complete the roadway repair and invoice the City for the job. Staff has projected a completion date of August 31, 2023 to allow the contractor sufficient time, but anticipate the job to be completed sooner.
CEQA CONSIDERATION:
Not a Project. The City of Salinas has determined that the proposed action of approving this Agreement for emergency services is not a project as defined by the California Environmental Quality Act (CEQA) (CEQA Guidelines Section 15378) because the Agreement and use of TID assessment does not cause a direct or foreseeable indirect physical change on or in the environment. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.
STRATEGIC PLAN INITIATIVE:
Emergency repair of the sewer lateral at 403 E. Romie Lane supports City of Salinas Strategic Plan 2022-2025 Goals and Strategies of Housing/Affordable Housing and Infrastructure and Environmental Sustainability.
DEPARTMENTAL COORDINATION:
This report was prepared by the Economic Development Division of the Community Development Department in consideration of significant coordination with the Public Works, Finance, and Legal Departments.
Page | 3
FISCAL AND SUSTAINABILITY IMPACT:
Funding for the Agreement for Services with E & D Industrial Trades Inc, a California stock corporation dba ACME Plumbing will come from existing General Fund Maintenance and Repair Account 1000.30.1355-63.6060 appropriations. Moving forward staff intends to utilize rent received from the property for ongoing maintenance and credit back the original expensed account.
ATTACHMENTS:
RESOLUTION
Exhibit A – Agreement for Services - Draft
1 RESOLUTION NO. (N.C.S.)
A RESOLUTION APPROVING AN AGREEMENT FOR SERVICES WITH E & D
INDUSTRIAL TRADES, INC DBA ACME PLUMBING TO REPAIR THE SEWER LATERAL AT CITY OWNED PROPERTY LOCATED AT 403 E. ROMIE LANE WHEREAS, the City of Salinas is the owner in fee of 403 E. Romie Lane (APN 002-622- 002-000); and
WHEREAS, on July 9, 2023, City staff was notified of clogged pipes and internal flooding and upon professional investigation it was determined that the sewer lateral had collapsed; and WHEREAS, the repair of the sewer lateral was deemed an emergency to protect the public safety and prevent further damage to the Property; and
WHEREAS, the City solicited repair services from ACME Plumbing to provide emergency repair services for the sewer lateral; and
WHEREAS, City Code Section 12-24, allows procurement of services on an emergency basis by the City Manager with subsequent approval by the City Council; and WHEREAS, the City of Salinas has determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA) (CEQA Guidelines Section 15378) because the Agreement does not cause a direct or foreseeable indirect physical change on or in the environment. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.
NOW, THEREFORE, BE IT RESOLVED that the Salinas City Council hereby authorizes the City Manager or designee to enter into an Agreement for Services with E & D Industrial Trades, Inc dba ACME Plumbing for emergency repair of the sewer lateral at Cityowned property located at 403 E. Romie Lane for an amount not to exceed $36,040.00.
PASSED AND APPROVED this 8
th day of August, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
2 APPROVED:
________________________
Kimbley Craig, Mayor
ATTEST:
_________________________
Patricia M. Barajas, City Clerk
Attached:
Exhibit A – Proposed Agreement
EXHIBIT A
Agreement for Services v. November 2022 Page 1 of 8
E & D Industrial Trades, Inc
July 2023
AGREEMENT FOR SERVICES BETWEEN
THE CITY OF SALINAS AND E&D INDUSTRIAL TRADES, INC
403 E. Romie Lane Sewer Lateral Repair
THIS AGREEMENT is executed this 12th day of July, 2023, (“Agreement”) between the City of Salinas, a California Charter city and municipal corporation (hereinafter “City”) and E & D Industrial Trades, INC, a California stock corporation dba ACME Plumbing (hereinafter “Contractor”).
IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1. Scope. Contractor hereby agrees to provide to the City, as the scope of services under this Agreement, the following services: Replace approximately 45’ old 4” sewer lateral with 4” SDR 17 pipe using the trenchless system from clean out by sidewalk to wye city main in street. Scope of work is further discussed in Contractor’s Proposal dated 7/12/2023, Attachment B.
2. Timeliness. Contractor shall perform all tasks in a timely fashion, as set forth more specifically in Section 3 below. Failure to so perform is hereby deemed a material breach of this Agreement, and City may terminate this Agreement with no further liability hereunder, or the city may agree in writing with Contractor to an extension of time.
3. Term. The work under this Agreement shall commence July 13, 2023 and shall be completed by August 31, 2023 of end of work unless City grants a written extension of time as set forth in Section 2 above.
4. Payment. City agrees to pay and Contractor agrees to accept as full and fair consideration for the performance of this Agreement, Thirty Six Thousand and Forty Dollars ($36,040.00), as more fully described in Contractor’s proposal, Attachment B. Contractor has no right of reimbursement for expenses under this Agreement. Compensation shall become due and payable 30 days after City’s approval of Contractor’s submission of monthly written invoices to the City.
The payment of any compensation shall be contingent upon performance of the terms and conditions of this Agreement to the satisfaction of the City. If City determines that the work set forth in the written invoice has not been performed in accordance with the terms of this Agreement, City shall not be responsible for payment until such time as the work has been satisfactorily performed.
5. Meet & Confer. Contractor agrees to meet and confer with City or its agents or employees with regard to services as set forth herein as may be required by City to insure timely and adequate performance of this Agreement.
6. Insurance. Contractor shall procure and maintain for the duration of this Agreement insurance meeting the requirements specified in Attachment A hereto.
7. Indemnification. Contractor shall hold harmless, defend at its own expense, and indemnify City and its officers, officials, employees, agents, and volunteers from and against all
EXHIBIT A
Agreement for Services v. November 2022 Page 2 of 8
E & D Industrial Trades, Inc
July 2023
liability, claims, damages, losses, and/or expenses including reasonable City attorney fees arising from all acts or omissions of Contractor or its officers, agents, or employees arising out of the performance of the work under this Contract, caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence or willful misconduct of the City.
8. Licensing. Contractor warrants that it is properly licensed to perform the work specified under this Agreement, including but not limited to possession of a current City business license.
9. Termination. City may terminate this Agreement upon ten days’ written notice. The amount of damages, if any, as a result of such termination may be decided by negotiations between the parties or before a court of competent jurisdiction.
10. Agency. In performing the services specified under this Agreement, Contractor is hereby deemed to be an independent contractor and not an agent or employee of City.
11. Non-Assignability. The rights and obligations of Contractor hereunder are not assignable and cannot be delegated without written consent of City.
12. Entire Agreement. This Agreement constitutes the entire Agreement between the parties hereto and supersedes any and all prior agreements, whether oral or written, relating to the subject matter thereof. Any modification of the Agreement will be effective only if it is in writing signed by both parties hereto.
13. Validity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full force without being impaired or invalidated in any way.
14. Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.
15. Laws. Contractor agrees that in the performance of this Agreement it will comply with all applicable State, Federal and local laws and regulations. This Agreement shall be governed by and construed in accordance with the laws of the State of California, County of Monterey, and City of Salinas.
IN WITNESS WHEREOF, this Agreement is entered into by the parties hereto on the day and year first written above.
EXHIBIT A
Agreement for Services v. November 2022 Page 3 of 8
E & D Industrial Trades, Inc
July 2023
CITY OF SALINAS
__________________________________
Steve Carrigan
City Manager
APPROVED AS TO FORM:
_________________________________
Christopher A. Callihan, City Attorney, or
Rhonda Combs, Assistant City Attorney
CONTRACTOR
___________________________________
By (Printed Name): Ed Mendoza
Its (Title): Owner
EXHIBIT A
Agreement for Services v. November 2022 Page 4 of 8
E & D Industrial Trades, Inc
July 2023
Attachment A
Insurance Requirements
Contractor shall procure and maintain for the duration of the contract, and for three years thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his/her/its officers, agents, representatives, employees, and/or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (“CGL”): Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an occurrence basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards): with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate, on an annual basis.
If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the Contractor requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. At the option of the City, either: the Contractor shall cause the insurer shall to reduce or eliminate such self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by
EXHIBIT A
Agreement for Services v. November 2022 Page 5 of 8
E & D Industrial Trades, Inc
July 2023
or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
2. For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.
4. A copy of the claims reporting requirements must be submitted by Contractor to the City.
5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractor’s Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.
Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.
Verification of Coverage
Contractor shall furnish the City with original Certificates of Insurance including an additional insured endorsement and all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins.
However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Maintenance of Insurance
Maintenance of insurance by Contractor as specified shall in no way be interpreted as relieving
EXHIBIT A
Agreement for Services v. November 2022 Page 6 of 8
E & D Industrial Trades, Inc
July 2023
Contractor of its indemnification obligations or any responsibility whatsoever and the Contractor may carry, at its own expense, such additional insurance as it deems necessary.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
EXHIBIT A
Agreement for Services v. November 2022 Page 7 of 8
E & D Industrial Trades, Inc
July 2023
Attachment B
EXHIBIT A
Agreement for Services v. November 2022 Page 8 of 8
E & D Industrial Trades, Inc
July 2023
City of Salinas
Legislation Text
200 Lincoln Ave., Salinas,
CA 93901
www.cityofsalinas.org
File #: ID#23-493, Version: 1
Encumbrance of SEATEC Underground Utilities, INC. Leasehold at the Salinas Municipal Airport at 467 Airport BLVD. in Favor of Bank of America
Approve a Resolution consenting to the encumbrances of the Seatec Underground Utilities, Inc. leasehold in favor of Bank of America, N.A., in an amount not to exceed $1,309,903.00.
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CITY OF SALINAS
CITY COUNCIL STAFF REPORT
DATE: AUGUST 8, 2023
DEPARTMENT: PUBLIC WORKS, AIRPORT DIVISION
FROM: DAVID JACOBS, PUBLIC WORKS DIRECTOR
BY: BRETT J. GODOWN, C.M., C.A.E., AIRPORT MANAGER
TITLE: CONSENT TO ENCUMBRANCE OF SEATEC UNDERGROUND
UTILITIES, INC. LEASEHOLD AT THE SALINAS MUNICIPAL
AIRPORT AT 467 AIRPORT BLVD. IN FAVOR OF BANK OF AMERICA RECOMMENDED MOTION:
A motion approving a resolution consenting to the encumbrances of the Seatec Underground Utilities, Inc. leasehold in favor of Bank of America, N.A., in an amount not to exceed $1,309,903.00.
RECOMMENDATION:
It is recommended that the City Council approve a resolution consenting to the encumbrances of the Seatec Underground Utilities, Inc. leasehold in favor of Bank of America, N.A., in an amount not to exceed $1,309,903.00.
BACKGROUND:
On September 28, 2016, by way of Resolution No. 21054, Seatec Underground Utilities, Inc. (Seatec) entered into a 50-year ground lease agreement with the City of Salinas for 1.174 acres of land (Lot D) located on the Salinas Airport at 467 Airport Blvd. On August 27, 2019, by way of Resolution No. 21699, the Lease was amended (Amendment No. 1) to accommodate a new 6,000 square foot hangar. Amendment No. 1 increased the total Demised Premise by adding Lot D-1,
0.244 acres of land (10,638 square feet). While navigating the City Building Permit Process, it was determined the proposed building needed to shift away from Airport Blvd. to meet City Building standards. The building shift necessitated shifting portions of Lot D-1.
On August 27, 2019, by way of Resolution No. 21699, the City and Seatec amended the Original Lease (Amendment No. 1) for the purposes of increasing the Demised Premises by adding approximately 0.244 acres of land (Lot D-1) for the construction of a 6,000 square foot aeronautical storage hangar as more particularly described in Amendment No. 1. On October 12, 2021, by way of Resolution 22221, the City and Seatec amended the Original Lease (Amendment Page | 2
No. 2) for the purposes of adjusting the Premise, Lot D-1 Legal Description, Exhibit A, and Plat, Exhibit B dated June 10, 2021, to reflect changes desired by Seatec; and On or about April 4, 2017, Seatec encumbered the leasehold by obtaining a loan from Bank of America, N.A., with an outstanding principal amount of $599,903.01 as of April 18, 2023.
Pursuant to Section 42 - Encumbrances of Leasehold Interest of the Original Lease, Seatec is entitled to encumber the Premise up to $750,000.00 without Salinas City Council’s approval.
Seatec is seeking additional financing from Bank of America, N.A., in an amount not to exceed $710,000.00, thus increasing the total Premise encumbrance above the $750,00.00 threshold.
Seatec desires to encumber the Premise in an amount not to exceed $1,309,903.00 (existing loan plus new loan). Due to the total encumbrance exceeding $750,000.00, Seatec is required to receive consent from City Council to encumber the Premise.
The proposed lease is located on the main Airport parcel. Under the Surplus Lands Act, prior to any sale or lease of the property, the City Council must first declare the property in question to be either Surplus Land or Exempt Surplus Land. On September 28, 2021, the Salinas City Council adopted Resolution 22219, declaring that the main Airport parcel is Exempt Surplus Land.
Therefore, the Salinas City Council is not required to take any further action under the Surplus Lands Act.
At the July 27, 2023, Airport Commission meeting, the Airport Commission recommended City Council consent to the lease encumbrances.
ANALYSIS:
City staff has reviewed the general terms of the loans and recommends the City Council consent to the lease encumbrances with the following conditions:
1. The total loan encumbrance against the Premise will not exceed $1,309,903.00.
2. The loans and terms will not extend beyond the Seatec lease expiration date of September 27, 2066.
3. All other terms, conditions, provisions, and covenants of the lease shall remain and continue in full force and effect, and no further encumbrance of the lease or any part thereof shall be made without the prior written consent of the City Council in each instance, as provided in the lease.
4. It is understood that the City has not reviewed or approved the terms and conditions of the proposed encumbrance documents, such as the leasehold deeds of trust or notes secured thereby, and is not agreeing to be a party to the leasehold deeds of trust, notes or other documents.
5. Nothing contained in the conditions of approval shall be construed to modify, amend or waive any provisions of the lease.
Page | 3
6. The City’s consent to the encumbrances shall be null and void and of no further force and effect if Seatec does not obtain financing from Bank of America, N.A., as confirmed by receipt of final loan documents signed by both Seatec and Bank of America, N.A., within ninety (90) days of City’s consent.
7. Seatec acknowledges that it will not seek rent relief as a result of not being able to meet its debt service or debt repayment obligations.
8. The City’s consent to this encumbrance is conditioned upon the leasehold having no other loans in effect against the Premise other than the April 4, 2017 loan and the proposed 2023 loan.
CEQA/NEPA CONSIDERATION:
The City of Salinas has determined that the proposed action is statutorily exempt as defined by the California Environmental Quality Act (CEQA) (CEQA Guidelines Section 15268(a)).
STRATEGIC PLAN INITIATIVE:
This action supports the City Council’s Strategic Plan Goals for Economic Diversity and Prosperity.
DEPARTMENTAL COORDINATION:
The Consenting agreement was reviewed as to form by the City Attorney.
FISCAL AND SUSTAINABILITY IMPACT:
The execution of this amendment will have no fiscal impact.
ATTACHMENTS:
Original Lease between the City of Salinas and Seatec Underground Utilities Inc.
Resolution - Consenting to the encumbrance of Seatec underground utilities, Inc. Leasehold at the Salinas municipal airport at 467 Airport Blvd. in Favor of Bank of America RESOLUTION NO. _____________________ (N.C.S.)
RESOLUTION CONSENTING TO ENCUMBRANCE OF SEATEC UNDERGROUND UTILITIES, INC. LEASEHOLD AT THE SALINAS MUNICIPAL AIRPORT AT 467 AIRPORT BLVD. IN THE AMOUNT NOT TO EXCEED $1,309, 903.00 IN FAVOR OF BANK OF AMERICA.
WHEREAS, on September 20, 2016, by way of Resolution No. 21054, Seatec Underground Utilities, Inc. (Seatec) entered a 50-year ground lease (Original Lease) with the City of Salinas (City) for 1.174 acres of land located on the Salinas Airport at 467 Airport Boulevard. (the “Property”); and
WHEREAS, on August 27, 2019, by way of Resolution No. 21699, the City and Seatec amended the Original Lease (Amendment No. 1) for the purposes of increasing the Demised Premises by adding approximately 0.244 acres of land (Lot D-1) for the construction of a 6,000 square foot aeronautical storage hangar as more particularly described in Amendment No. 1; and WHEREAS, on October 12, 2021, by way of Resolution 22221, the City and Seatec amended the Original Lease (Amendment No. 2) for the purposes of adjusting the Premise, Lot D-1 Legal Description, Exhibit A, and Plat, Exhibit B dated June 10, 2021, to reflect changes desired by Seatec; and
WHEREAS, on or about April 4, 2017, Seatec encumbered the leasehold by obtaining a loan from Bank of America, N.A., with an outstanding principal amount of $599,903.01 as of April 18, 2023; and
WHEREAS, pursuant to Section 42 - Encumbrances of Leasehold Interest, of the Original Lease, Seatec is entitled to encumber the Premise up to $750,000.00 without Salinas City Council’s approval; and
WHEREAS, Seatec is seeking additional financing from Bank of America, N.A., in an amount not to exceed $710,000.00, thus increasing the total Premise encumbrance above the $750,00.00 threshold; and
WHEREAS, Seatec desires to encumber the Premise in an amount not to exceed $1,309,903.00 (existing loan plus new loan); and
WHEREAS, staff has reviewed the general terms of the loans and recommends the City Council consent to the lease encumbrances with the following conditions:
1. The total loan encumbrance against the Premise will not exceed $1,309,903.00; and
2. The loans and terms will not extend beyond the Seatec lease expiration date of September 27, 2066; and
3. All other terms, conditions, provisions, and covenants of the lease shall remain and continue in full force and effect, and no further encumbrance of the lease or any part thereof shall be made without the prior written consent of the City Council in each instance, as provided in the lease; and
4. It is understood that the City has not reviewed or approved the terms and conditions of the proposed encumbrance documents, such as the leasehold deeds of trust or notes secured thereby, and is not agreeing to be a party to the leasehold deeds of trust, notes or other documents; and
5. Nothing contained in the conditions of approval shall be construed to modify, amend or waive any provisions of the lease; and
6. The City’s consent to the encumbrances shall be null and void and of no further force and effect if Seatec does not obtain financing from Bank of America, N.A., as confirmed by receipt of final loan documents signed by both Seatec and Bank of America, N.A., within ninety (90) days of City’s consent; and
7. Seatec acknowledges that it will not seek rent relief as a result of not being able to meet its debt service or debt repayment obligations; and
8. The City’s consent to this encumbrance is conditioned upon the leasehold having no other loans in effect against the Premise other than the April 4, 2017 loan and the proposed 2023 loan.
WHEREAS, at the July 27, 2023, Airport Commission meeting, the Airport Commission recommended City Council consent to the lease encumbrances; and WHEREAS, on September 28, 2021, the Salinas City Council adopted Resolution 22219 declaring the parcel of land containing the Property to be Exempt Surplus Land as defined in Government Code Section 54221; and
WHEREAS, Salinas Municipal Code Section 37-10.070 allows the City Council to allow land owned or leased by the City of Salinas to be used in a manner that it finds to be proper and in the public interest; and
WHEREAS, Salinas Municipal Code Section 12-13 allows the City Council to approve the leasing of any City-owned real property if the Council determines that the real property interest leased will not be necessary for municipal purposes during the term of the lease.
NOW, THEREFORE, BE IT RESOLVED that the Salinas City Council hereby finds and determines that the above recitals and accompanying Staff Report are true and correct and have served as the basis, in part, for the actions of the City Council set forth below; and BE IT FURTHER RESOLVED THAT the City Council hereby finds that the use of the property in accordance with the terms of the lease is proper and in the public interest; and BE IT FURTHER RESOLVED THAT the City Council hereby determines that the real property interest conveyed by the lease will not be necessary for municipal purposes during the term of the lease; and
BE IT FURTHER RESOLVED THAT the Mayor of Salinas or her designated representative be and is hereby authorized and directed, for and on behalf of the City of Salinas, to consent to the encumbrances of the Seatec Underground Utilities, Inc. leasehold in favor of Bank of America, N.A., in an amount not to exceed $1,309,903.00, and to execute mutually agreeable documentation with or in favor of Bank of America, N.A., that are consistent with this Resolution, at the Salinas Municipal Airport.
PASSED AND APPROVED this 22nd day of August 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
APPROVED:
___________________________
Kimbley Craig, Mayor
ATTEST:
_____________________________
Patricia Barajas, City Clerk
2 3
4 Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Bank of America, N.A.
Doc Retention Center
Gateway Village-900 Building
NC1-026-06-06
900 W Trade St
Charlotte, NC 28255
THIS SPACE ABOVE FOR RECORDER’S USE
AMENDED AND RESTATED CONSENT TO ENCUMBRANCE OF LEASEHOLD ESTATE
THIS AMENDED AND RESTATED CONSENT TO ENCUMBRANCE OF LEASEHOLD ESTATE (“Consent”), dated as of June ____, 2023, is made by the City of Salinas, a California charter city and municipal corporation of the State of California (“Landlord”), and Seatec Underground Utilities, Inc., a California corporation (“Tenant”), in favor of Bank of America, N.A. (“Beneficiary”).
This Consent is made with reference to the following facts:
A. Landlord is the current holder of the lessor’s interest and Tenant is the current holder of the lessee’s interest under that certain ground lease described in Exhibit “A” attached hereto and incorporated herein by this reference (“Lease”). A copy of the Lease has concurrently herewith been delivered to the Beneficiary. The Lease covers the real property (“Property”) described in Exhibit “B” attached hereto and made a part hereof.
B. Tenant received a loan from Beneficiary in the original principal amount of $786,000.00 (“Loan”). As of April 18, 2023, the principal amount outstanding under the Loan is $599,903.01. The Loan is secured by, among other things, a Leasehold Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the “Original Deed of Trust”) executed by Tenant for the benefit of Beneficiary and dated as of April 4, 2017 and recorded in the Official Records of Monterey County, California on April 6, 2017, as Instrument No. 2017018440, and is evidenced and otherwise governed by that certain Loan Agreement described in the Deed of Trust (together with the Amendment (defined below), the “Loan Agreement”), the Deed of Trust, and any other documents required or delivered in connection with the foregoing (“Loan Documents”).
In connection with the Loan, Landlord and Tenant previously executed that certain Consent to Encumbrance of Leasehold Estate dated as of April 4, 2017, and recorded in the Official Records of Monterey County, California on April 6, 2017, as Instrument No. 2017018439 (the “Original Consent”). The Lease has been amended to, among other things, increase the Demised Premises (as defined in the Lease) by adding approximately 0.244 acres of land. Landlord and Tenant desire to amend and restate the Original Consent in its entirety.
Tenant and Beneficiary are concurrently herewith entering into: (1) an Amendment No. 1 and Waiver to Loan Agreement (the “Amendment”); and (2) a Modification of the Deed of Trust (the “Modification”) to, among other things, revise the legal description contained in Exhibit “A” attached thereto. The Modification will be recorded in the Official Records of Monterey County concurrently with this Consent. The Original Deed of Trust and the Modification shall hereinafter be collectively referred to as the “Deed of Trust.”
Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23 C. A condition of the Loan is Landlord’s agreement to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree in favor of Beneficiary as follows:
1. Consent to Encumbrance of Leasehold Estate. Landlord hereby consents to the Deed of Trust and the hypothecation thereunder of the leasehold estate and all other present and future rights of Tenant in, to, and under the Lease and the Property.
2. Transfer of Leasehold Interest. Subject to the review and prior approval of the Landlord, the transfer of Tenant’s leasehold estate in the Property may occur pursuant to (a) a foreclosure sale held pursuant to the Deed of Trust, or (b) deed in lieu of foreclosure. In the event that Beneficiary (whether as purchaser at a foreclosure sale held pursuant to the Deed of Trust or by deed in lieu of foreclosure) acquires any leasehold estate in the Property, and Beneficiary thereafter desires to transfer its title to such leasehold estate, Landlord shall have the right of prior review and approval of transfer to the transferee, provided that the transferee expressly assumes all obligations of the lessee under the Lease. Beneficiary shall automatically be released from any liability for the obligations of the lessee under the Lease upon the transfer of title to the leasehold estate.
3. No Subordination of Leasehold Interest. Unless Beneficiary otherwise consents in writing, the leasehold estate under the Lease shall not be subordinated to any future mortgage or deed of trust encumbering the fee interest in the Property after the recordation of this Consent. All future lienholders are hereby put on notice of the foregoing.
4. Representations and Warranties. Tenant represents, warrants, and certifies to Beneficiary that: (a) a true and correct copy of the Lease, and any and all supplements and amendments thereto and modifications thereof, have been delivered to Beneficiary; (b) the Lease is genuine, valid, and enforceable in accordance with its terms, is in full force and effect as of the date hereof, and has not been supplemented, modified, amended, or terminated; (c) Tenant has not given or received notice of the occurrence of a default under the Lease, and to the best of Tenant’s knowledge, there are no defaults, breaches, defenses, claims or offsets thereunder or to the enforcement thereof; (d) rent owing under the Lease, which is due as of the date of the execution hereof, has been paid in full, and to the best of Tenant’s knowledge, Tenant is in compliance with all other obligations of the lessee under the Lease; (e) the term of the Lease expires on September 27, 2046; (f) there are no agreements between Landlord and Tenant affecting the Property other than the Lease; (g) neither Landlord’s fee interest nor Tenant’s leasehold interest in the Property is subject to any deed of trust, mortgage, or other lien (other than the Deed of Trust); and (h) all buildings and other improvements required to have been constructed under the Lease have been fully completed in accordance with the terms thereof. Tenant further represents, warrants, and certifies to Beneficiary that: (a) Tenant has not assigned, transferred or hypothecated its interest under the Lease (except by the Deed of Trust); and (b) there are no subleases, licenses, or other agreements (except the Lease) which create rights of occupancy with respect to the Property, which have not been disclosed to Beneficiary in writing. Landlord represents, warrants, and certifies to Beneficiary that the individual executing this Consent on behalf of Landlord has the necessary authority to enter into this Consent and that no other documentation is needed to evidence such authority.
5. Destruction. In the event of destruction of any improvements on the Property, Tenant shall reconstruct the same and neither Landlord nor Tenant shall terminate the Lease so long as the Deed of Trust is outstanding if and for so long as Tenant or Beneficiary pursues such reconstruction with reasonable diligence.
6. Loan Documents; Insurance Proceeds; Condemnation Awards. Landlord has reviewed the Loan Agreement and the Deed of Trust, and Landlord approves the Loan Agreement and the Deed of Trust, and the transactions contemplated therein, and agrees that (a) Tenant (and Beneficiary should it become owner of the Tenant’s interest under the Lease) may sublease the Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23 improvements located on the Property to sub-tenants to be used for any lawful purposes during the term of the Lease and any renewals and extensions thereof; and (b) the provisions of the Deed of Trust with respect to insurance proceeds and condemnation awards shall be controlling notwithstanding the provisions of the Lease, and Beneficiary may apply such payments or awards received by Beneficiary as it sees fit, subject only to the provisions of the Deed of Trust. Landlord also consents to the assignment to Beneficiary of all of Tenant’s rights and interests in all present and future subleases of the Property and any improvements thereon and all rentals to become due thereunder as security for the Loan.
7. Performance of Obligations Under the Lease. Tenant agrees to perform all obligations of the lessee under the Lease without notice or demand from Beneficiary. Any default by Tenant under the Lease shall automatically be a default under the Deed of Trust and shall entitle Beneficiary to institute foreclosure proceedings thereunder, and Beneficiary may enter into possession of the Property and take whatever steps it deems necessary to correct the default under the Lease. Any expenses incurred by Beneficiary in connection with the enforcement of its rights hereunder or in curing any default under the Lease, including, without limitation, reasonable attorneys’ fees and attendant expenses, shall be due and payable by Tenant to Beneficiary immediately and without demand, shall bear interest at the default rate of interest as set forth in the Loan Agreement and shall be secured by the Deed of Trust. Beneficiary shall not have any liability for the performance of any of the obligations of the lessee under the Lease until Beneficiary has acquired the leasehold interest in the Property, and then only in accordance with the terms of the Lease.
8. Beneficiary’s Expenses. If Beneficiary acquires any leasehold estate in the Property (whether as purchaser upon the foreclosure of the Deed of Trust, by deed in lieu of foreclosure, or under any provision of the Lease), all expenses incurred by Beneficiary in connection therewith, including, without limitation, all rental payments and other sums then due under the Lease, reasonable attorneys’ fees, and attendant expenses, shall be due and payable by Tenant to Beneficiary immediately and without demand, and shall bear interest at the Default Rate.
9. Consent to Prior Assignments. Landlord consents to any and all prior assignments of the lessee’s interest under the Lease by or through which such interest has been transferred to Tenant.
10. Acquisition of Fee Title and Other Interests by Tenant. The parties hereto intend and agree that in the event Tenant acquires fee title to the Property, or any other interest in the Property not currently held by Tenant, the Deed of Trust shall automatically encumber such interests in the Property in a first lien position (except to the extent such interest is already encumbered by a lien in favor of Beneficiary, in which case the Deed of Trust shall be in a second lien position), if and when acquired by Tenant, without the necessity of any further documents or action. Notwithstanding the foregoing, Tenant, as a condition to acquiring any such interest, shall execute such documents and take such actions as may be requested by Beneficiary to evidence that the lien of the Deed of Trust encumbers such interest in the Property.
11. Waiver re Bankruptcy. Unless Beneficiary otherwise consents in writing, Landlord and Tenant each hereby waives, and agrees not to assert or otherwise take the benefit of, Section 365(d)4, or any other applicable provisions, of the United States Bankruptcy Code (11 U.S.C. § 101 et seq.), which may cause the termination of the Lease, or otherwise render it unenforceable in accordance with its terms, whether automatically by operation of law, or otherwise.
12. New Lease.
(a) In the event the Lease is terminated by reasons of bankruptcy, assignment for benefit of creditors, insolvency or other event beyond the ability of Tenant or Lender to cure or remedy, or if the Lease otherwise terminates for any reason, Landlord shall upon written request of Beneficiary or its designee enter into a new lease (“New Lease”) with Beneficiary or its designee. The New Lease shall be effective as of the effective date of such termination for the remainder of the term of the Lease, including any options to extend the terms Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23 thereof, provided Beneficiary or its designee shall have paid or caused to be paid to Landlord all rents and other sums owing by Tenant under the Lease as of the date of execution of the New Lease.
(b) New Lease Priority. The New Lease made pursuant to this Section and any renewal lease entered into with Beneficiary or its designee pursuant thereto shall be prior to any mortgage or other lien, charge or encumbrance on Landlord’s fee interest in the Property (other than the lien of any deed of trust executed by Landlord in favor of Beneficiary to secure the Loan), and the lessee under such New Lease shall have the same right, title and interest in and to the leasehold estate as Tenant had under the Lease.
(c) Liability of New Lessee. The lessee under the New Lease shall be liable to perform the obligations imposed on the lessee by the New Lease, provided however, if said lessee is Beneficiary or its designee, it shall have no further liability under the New Lease from and after the date it transfers and assigns its interest in the New Lease. Beneficiary or its designee or assignee (and any of their successors or assigns) shall not be obligated to perform or observe non-monetary covenants under the New Lease (if any) which pertain to the financial condition, ownership or management of Tenant or which otherwise are capable of being performed or observed only by Tenant.
13. Notices to Beneficiary; Cure Rights. Should Tenant default under the Lease, Landlord shall send a copy of any default notice to Beneficiary at the address specified below.
Beneficiary may, but is not obligated to, cure the default, so long as Beneficiary acts within thirty (30) days of its receipt of the default notice from Landlord. Should the default be of a nature which requires more than thirty (30) days to cure, then so long as Beneficiary commences such cure within such thirty (30) day period, and diligently pursues such cure to completion, the default shall be deemed cured.
Landlord shall not terminate the Lease because of any default or breach under the Lease on the part of Tenant, if, within thirty (30) days of Beneficiary’s receipt of a default notice from Landlord, Beneficiary causes the trustee under the Deed of Trust to commence and pursue to completion proceedings to foreclosure under the Deed of Trust.
14. Notice Procedure. Any notices required herein shall be personally delivered or mailed, postage prepaid, certified mail, return receipt requested, with a copy via regular mail, addressed as follows:
If to Beneficiary: Bank of America, N.A.
Doc Retention Center
Gateway Village-900 Building
NC1-026-06-06
900 W Trade St
Charlotte, NC 28255
If to Landlord: Salinas Municipal Airport,
c/o Airport Manager
30 Mortensen Avenue
Salinas California 93905
If to Tenant: Seatec Underground Utilities, Inc.
467 Airport Blvd
Salinas, CA 93905
or to such other address as may be designated by the parties in the manner provided above for giving notice. Notices shall be deemed given upon personal delivery or upon receipt or refusal to accept receipt, as evidenced by the return receipt.
Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23
15. Consent to Encumbrance of Right of First Refusal. Landlord consents to the encumbrance under the Deed of Trust of any right of first refusal to purchase in the Lease (“Right of First Refusal”), and agrees that Beneficiary may exercise the Right of First Refusal at the same time specified in and in accordance with the of the Lease, either in the name of Tenant or in its own name (or the name of a nominee of Beneficiary), as more fully set forth in the Deed of Trust.
16. Estoppel Statements. Landlord agrees to deliver to Beneficiary within fifteen (15) days after written request by Beneficiary, an estoppel certificate from Landlord setting forth (a) the name of the tenant under the Lease, (b) that the Lease has not been modified or, if it has been modified, the date of each modification (together with copies of each such modification), (c) the basic rent payable under the Lease, (d) the date to which all rental charges have been paid by Tenant under the Lease, and (e) whether there are any alleged defaults of Tenant under the Lease and, if there are, a description of the nature of such defaults in reasonable detail.
17. Miscellaneous. The parties hereto acknowledge that this Consent is a material inducement to Beneficiary to make the Loan to Tenant, and that Beneficiary would not be willing to extend credit (or to continue to extend credit) upon the security of Tenant’s leasehold estate in the absence hereof. Beneficiary is an intended beneficiary of this Consent and the leasehold mortgagee protection provisions of the Lease, and may enforce in its favor all provisions hereof and thereof. This Consent shall inure to the benefit of and be binding upon the successors and assigns of Landlord, Tenant, and Beneficiary. All rights of Beneficiary hereunder may be assigned by Beneficiary without notice to the parties hereto and shall inure to the benefit of Beneficiary’s successors and assigns. This Consent may not be supplemented, modified, amended or terminated without Beneficiary’s prior written consent. In the event of a conflict between the Lease and this Consent, the provisions of this Consent shall control.
Notice of acceptance hereof by Beneficiary is hereby waived. This Consent may be executed and recorded in counterparts.
“Landlord”
City of Salinas,
a California charter city and municipal corporation
of the State of California
By: ________________________________
Name: ________________________________
Title: ________________________________
“Tenant”
Seatec Underground Utilities, Inc.,
a California corporation
By: _____________________________
Michael Bikle, CEO
Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23 EXHIBIT “A”
DESCRIPTION OF LEASE
That certain Lease dated September 20, 2016, between the City of Salinas, a California charter city and municipal corporation of the State of California, as lessor, and Seatec Underground Utilities, Inc., a California corporation, as lessee, a memorandum of which was recorded on September 28, 2016 as Instrument No. 2016056441 in the Official Records of Monterey County, California, as amended by that certain First Amendment to Ground Lease dated August 27, 2019, and that certain Second Amendment to Ground Lease dated September 1, 2021, a memorandum of which was recorded on April 5, 2023, as Instrument No. 2023010018 in the Official Records of Monterey County, California.
Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23 EXHIBIT “B”
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SALINAS, COUNTY OF MONTEREY, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL I:
That certain real property lying within the City of Salinas, County of Monterey, State of California, and being a portion of that certain 155.14 acre tract of land acquired by Salinas, a municipal corporation, from Ada May Bardin by Resolution No. 1126 (N.C.S.) dated September 23, 1940 and recorded in Volume 684 of Deeds at Page 403 therein, Official Records of Monterey County, California, and being more particularly described as follows:
Beginning at the true point of beginning of that certain 1.0616 acre parcel designated as Parcel A as leased to A. Teeters by Salinas, a municipal corporation, by lease indenture as recorded in Reel 1048 at
feet along the westerly line of said Parcel A, to the corner common to said Parcel A and Parcel B of said lease said point being the True Point of Beginning; thence leaving the boundary of said Parcel A and running the following courses:
(1) South 32 ° 35' 42" West, 184.36 feet to an angle point; thence (2) North 83 ° 54' 00" West, 406.55 feet to the southerly line of Airport Boulevard, a city street 84 feet wide; thence
(3) North 57 ° 47' 00" East, 266.12 feet along said southerly line of Airport Boulevard, to the southerly corner of that certain 0.711 acre parcel designated as Parcel 1 as leased to Wells Fargo by Salinas, a municipal corporation, by lease indenture as recorded in Reel 659 at Page 294, Monterey County Records; thence easterly along a fence line
(4) South 63 ° 48' 30" East, 62.33 feet to an angle point in said fence line; thence (5) South 73 ° 00' 42" East, 21.93 feet to an angle point in said fence line; thence (6) South 83 ° 21' 50" East, 116.80 feet to an angle point in said fence line; thence (7) North 86 ° 02' 18" East, 27.51 feet to an angle point in said fence line; thence (8) North 79 ° 01' 16" East, 30.21 feet to an angle point in said fence line; thence (9) North 70 ° 34' 29" East, 30.10 feet to the True Point of Beginning.
PARCEL II:
Being a portion of that certain 155.14 acre tract of land recorded in Volume 684, of Deeds, at Page 403, Official Records of Monterey County, more particularly described as follows:
Beginning at the most southerly corner of that certain 1.174 acre parcel designated as Lot D as leased to Gomes Farm Air Services, Inc., by Salinas, a Municipal Corporation by Lease Agreement as recorded in Reel 3149, at Page 1007, Official Records of Monterey County, from which the most easterly corner of Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23 said Lot D along a fence line bears N. 32 ° 35' 42" E., 184.36 feet distant; thence from said Point of Beginning
(1) S. 32 ° 35' 42" W., 22.35 feet to an angle point; thence (2) N. 83 ° 54' 00" W., 184.26 feet to an angle point; thence (3) S. 6 ° 06' 00" W., 30.00 feet to an angle point; thence (4) N. 83 ° 54' 00" W., 117.30 feet to an angle point; thence (5) N. 32 ° 13' 00" W., 63.73 feet to a point on the southerly boundary of said Lot D; thence running along said southerly boundary
(6) S. 83 ° 54' 00" E., 351.04 feet to the Point of Beginning.
Street Address of Property: 467 Airport Blvd, Salinas, California 93905 Parcel / PIN Number: 003-863-036 (portion)
Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23
NOTARY ACKNOWLEDGMENT
CIVIL CODE § 1189
State of California }
}
County of ___________________ }
On ______________________, before me, __________________________________________ personally (Name and Title of Officer (e.g., “Jane Doe, Notary Public”) appeared _______________________________________________, who proved to me on the basis of Name(s) of Signer(s)
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature__________________________________________(Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Seatec Underground Utilities, Inc. / Amended and Restated Consent to Encumbrance of Leasehold Estate / 4.16.23
NOTARY ACKNOWLEDGMENT
CIVIL CODE § 1189
State of California }
}
County of ___________________ }
On ______________________, before me, __________________________________________ personally (Name and Title of Officer (e.g., “Jane Doe, Notary Public”) appeared _______________________________________________, who proved to me on the basis of Name(s) of Signer(s)
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature__________________________________________(Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -1-
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Bank of America, N.A.
Doc Retention Center
Gateway Village-900 Building
NC1-026-06-06
900 W Trade St
Charlotte, NC 28255
_________________________________________________________________________________ Space above this line for Recorder's Use
LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
This Leasehold Deed of Trust is made as of June ____, 2023, by Seatec Underground Utilities, Inc., a California corporation, as trustor ("Trustor"), to PRLAP, Inc., as trustee ("Trustee"), for the benefit of Bank of America, N.A., a national banking association, as beneficiary ("Beneficiary").
1. GRANT IN TRUST.
1.1 The Property. For the purpose of securing payment and performance of the Secured Obligations defined in Section 2 below, Trustor hereby irrevocably and unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry and possession, all estate, right, title and interest which Trustor now has or may later acquire in the following property (all or any part of such property, or any interest in all or any part of it, together with the Personalty (as hereinafter defined) being hereinafter collectively referred to as the "Property"):
(a) The real property located at 467 Airport Blvd, Salinas, California 93905, a portion of APN 003-863-036 in the County of Monterey, State of California, as described in Exhibit A hereto (the “Land”);
(b) All buildings, structures, improvements, fixtures and appurtenances now or hereafter placed on the Land, and all apparatus and equipment now or hereafter attached in any manner to the Land or any building on the Land, including all pumping plants, engines, pipes, ditches and flumes, and also all gas, electric, cooking, heating, cooling, air conditioning, lighting, refrigeration and plumbing fixtures and equipment (collectively, the “Improvements”); (c) All easements and rights of way appurtenant to the Land; all crops growing or to be grown on the Land (including all such crops following severance from the Land); all standing timber upon the Land (including all such timber following severance from the Land); all development rights or credits and air rights; all water and water rights (whether riparian, appropriative, or otherwise, and whether or not appurtenant to the Land) and shares of stock pertaining to such water or water rights, ownership of which affect the Land; all minerals, oil, gas, and other hydrocarbon substances and rights thereto in, on, under, or upon the Land; (d) All existing and future leases, subleases, subtenancies, licenses, occupancy agreements and concessions relating to the use and enjoyment of all or any part of the Land or the Improvements, and any and all guaranties and other agreements relating to or made in connection with any of the foregoing;
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(e) All proceeds, including all claims to and demands for them, of the voluntary or involuntary conversion of any of the Land, Improvements, or the other property described above into cash or liquidated claims, including proceeds of all present and future fire, hazard or casualty insurance policies, whether or not such policies are required by Beneficiary, and all condemnation awards or payments now or later to be made by any public body or decree by any court of competent jurisdiction for any taking or in connection with any condemnation or eminent domain proceeding, and all causes of action and their proceeds for any breach of warranty, misrepresentation, damage or injury to, or defect in, the Land, Improvements, or the other property described above or any part of them; and
(f) All proceeds of, additions and accretions to, substitutions and replacements for, and changes in any of the property described above.
1.2 Fixture Filing. This Deed of Trust constitutes a financing statement filed as a fixture filing under Section 9502(c) of the California Uniform Commercial Code, as amended or recodified from time to time, covering any Property which now is or later may become a fixture attached to the Land or any building located thereon.
2. THE SECURED OBLIGATIONS.
2.1 Purpose of Securing. Trustor makes the grant, conveyance, transfer and assignment set forth in Section 1, makes the irrevocable and absolute assignment set forth in Section 3, and grants the security interest set forth in Section 4, all for the purpose of securing the following obligations (the "Secured Obligations") in any order of priority that Beneficiary may choose:
(a) Payment of all obligations of Seatec Underground Utilities, Inc., a California corporation ("Obligor") to Beneficiary arising under the following instrument(s) or agreement(s) (collectively, the "Debt Instrument"):
(i) A certain Loan Agreement dated as of June ____, 2023, between Obligor and Beneficiary which provides for extensions of credit in a principal amount not exceeding Seven Hundred Ten Thousand and 00/100 Dollars ($710,000.00).
This Deed of Trust also secures payment of all obligations of Obligor under the Debt Instrument which arise after the Debt Instrument is extended, renewed, modified or amended pursuant to any written agreement between Obligor and Beneficiary, and all obligations of Obligor under any successor agreement or instrument which restates and supersedes the Debt Instrument in its entirety;
(b) Payment and performance of all obligations of Trustor under this Deed of Trust;
(c) Payment and performance of all obligations of Obligor under any Swap Contract with respect to which there is a writing evidencing the parties' agreement that said Swap Contract shall be secured by this Deed of Trust. "Swap Contract" means any document, instrument or agreement with Beneficiary, now existing or entered into in the future, relating to an interest rate swap transaction, forward rate transaction, interest rate cap, floor or collar transaction, any similar transaction, any option to enter into any of the foregoing, and any combination of the foregoing, which agreement may be oral or in writing, including, without limitation, any master agreement relating to or governing any or all of the foregoing and any related schedule or confirmation, each as amended from time to time; and (d) Payment and performance of all future advances and other obligations under Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -3-
the Debt Instrument.
This Deed of Trust does not secure any obligation which expressly states that it is unsecured, whether contained in the foregoing Debt Instrument or in any other document, agreement or instrument.
Notwithstanding any provision to the contrary, “Secured Obligations” secured hereby shall not include obligations arising under any Swap Contract to the extent that the grant of a lien hereunder to secure such Swap Contract would violate the Commodity Exchange Act by virtue of the Trustor’s failure to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time such grant of such lien becomes effective with respect to such Swap Contract. “Commodity Exchange Act” means 7 U.S.C. Section 1 et seq., as amended from time to time, any successor statute, and any rules, regulations and orders applicable thereto.
2.2 Terms of Secured Obligations. All persons who may have or acquire an interest in all or any part of the Property will be considered to have notice of, and will be bound by, the terms of the Debt Instrument described in Paragraph 2.1(a) and each other agreement or instrument made or entered into in connection with each of the Secured Obligations. These terms include any provisions in the Debt Instrument which permit borrowing, repayment and reborrowing, or which provide that the interest rate on one or more of the Secured Obligations may vary from time to time.
3. ASSIGNMENT OF RENTS.
3.1 Assignment. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to Beneficiary all rents, royalties, issues, profits, revenue, income and proceeds of the Property, whether now due, past due or to become due, including all prepaid rents and security deposits (collectively, the "Rents"), and confers upon Beneficiary the right to collect such Rents with or without taking possession of the Property. In the event that anyone establishes and exercises any right to develop, bore for or mine for any water, gas, oil or mineral on or under the surface of the Property, any sums that may become due and payable to Trustor as bonus or royalty payments, and any damages or other compensation payable to Trustor in connection with the exercise of any such rights, shall also be considered Rents assigned under this Paragraph. THIS IS AN ABSOLUTE ASSIGNMENT, NOT AN ASSIGNMENT FOR SECURITY ONLY.
3.2 Grant of License. Notwithstanding the provisions of Paragraph 3.1, Beneficiary hereby confers upon Trustor a license ("License") to collect and retain the Rents as they become due and payable, so long as no Event of Default, as defined in Paragraph 6.2, shall exist and be continuing. If an Event of Default has occurred and is continuing, Beneficiary shall have the right, which it may choose to exercise in its sole discretion, to terminate this License without notice to or demand upon Trustor, and without regard to the adequacy of the security for the Secured Obligations.
4. SECURITY INTEREST IN RELATED PERSONALTY.
4.1 Grant of Security Interest. Trustor grants to Beneficiary a security interest in, and pledges and assigns to Beneficiary, all of Trustor’s right, title and interest, whether presently existing or hereafter acquired in and to all of the following property (collectively, the “Personalty”):
(a) All materials, supplies, goods, tools, furniture, fixtures, equipment, and machinery which in all cases is affixed or attached, or to be affixed or attached, in any manner on the Land or the Improvements;
(b) All crops growing or to be grown on the Land (and after severance from the Land); all standing timber upon the Land (and after severance from the Land); all sewer, water and water rights (whether riparian, appropriative, or otherwise, and whether or not appurtenant to the Land) and all evidence of ownership rights pertaining to such water or water rights, ownership Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -4-
of which affect the Land; and all architectural and engineering plans, specifications and drawings which arise from or relate to the Land or the Improvements; (c) All permits, licenses and claims to or demands for the voluntary or involuntary conversion of any of the Land, Improvements, or other Property into cash or liquidated claims, proceeds of all present and future fire, hazard or casualty insurance policies relating to the Land and the Improvements, whether or not such policies are required by Beneficiary, and all condemnation awards or payments now or later to be made by any public body or decree by any court of competent jurisdiction for any taking or in connection with any condemnation or eminent domain proceeding, and all causes of action and their proceeds for any breach of warranty, misrepresentation, damage or injury to, or defect in, the Land, Improvements, or other Property or any part of them;
(d) All substitutions, replacements, additions, and accessions to any of the above property, and all books, records and files relating to any of the above property, including, without limitation, all general intangibles related to any of the above property and all proceeds of the above property.
5. RIGHTS AND DUTIES OF THE PARTIES.
5.1 Representations and Warranties. Trustor represents and warrants that Trustor lawfully possesses and holds fee simple title to all of the Land and the Improvements, unless Trustor's present interest in the Land and the Improvements is described in Exhibit A as a leasehold interest, in which case Trustor lawfully possesses and holds a leasehold interest in the Land and the Improvements as stated in Exhibit A.
5.2 Taxes, Assessments, Liens and Encumbrances. Trustor shall pay prior to delinquency all taxes, levies, charges and assessments, including assessments on appurtenant water stock, imposed by any public or quasi-public authority or utility company which are (or if not paid, may become) a lien on all or part of the Property or any interest in it, or which may cause any decrease in the value of the Property or any part of it. Trustor shall immediately discharge any lien on the Property which Beneficiary has not consented to in writing, and shall also pay when due each obligation secured by or reducible to a lien, charge or encumbrance which now or hereafter encumbers or appears to encumber all or part of the Property, whether the lien, charge or encumbrance is or would be senior or subordinate to this Deed of Trust.
5.3 Damages and Insurance and Condemnation Proceeds.
(a) Trustor hereby absolutely and irrevocably assigns to Beneficiary, and authorizes the payor to pay to Beneficiary, the following claims, causes of action, awards, payments and rights to payment (collectively, the "Claims"):
(i) all awards of damages and all other compensation payable directly or indirectly because of a condemnation, proposed condemnation or taking for public or private use which affects all or part of the Property or any interest in it; (ii) all other awards, claims and causes of action, arising out of any breach of warranty or misrepresentation affecting all or any part of the Property, or for damage or injury to, or defect in, or decrease in value of all or part of the Property or any interest in it;
(iii) all proceeds of any insurance policies payable because of loss sustained to all or part of the Property, whether or not such insurance policies are required by Beneficiary; and
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(iv) all interest which may accrue on any of the foregoing. (b) Trustor shall immediately notify Beneficiary in writing if:
(i) any damage occurs or any injury or loss is sustained to all or part of the Property, or any action or proceeding relating to any such damage, injury or loss is commenced; or
(ii) any offer is made, or any action or proceeding is commenced, which relates to any actual or proposed condemnation or taking of all or part of the Property.
If Beneficiary chooses to do so, it may in its own name appear in or prosecute any action or proceeding to enforce any cause of action based on breach of warranty or misrepresentation, or for damage or injury to, defect in, or decrease in value of all or part of the Property, and it may make any compromise or settlement of the action or proceeding. Beneficiary, if it so chooses, may participate in any action or proceeding relating to condemnation or taking of all or part of the Property, and may join Trustor in adjusting any loss covered by insurance. (c) All proceeds of the Claims assigned to Beneficiary under this Paragraph shall be paid to Beneficiary. In each instance, Beneficiary shall apply those proceeds first toward reimbursement of all of Beneficiary's costs and expenses of recovering the proceeds, including attorneys' fees. Trustor further authorizes Beneficiary, at Beneficiary's option and in Beneficiary's sole discretion, and regardless of whether there is any impairment of the Property, (i) to apply the balance of such proceeds, or any portion of them, to pay or prepay some or all of the Secured Obligations in such order or proportion as Beneficiary may determine, or (ii) to hold the balance of such proceeds, or any portion of them, in an interest-bearing account to be used for the cost of reconstruction, repair or alteration of the Property, or (iii) to release the balance of such proceeds, or any portion of them, to Trustor. If any proceeds are released to Trustor, neither Beneficiary nor Trustee shall be obligated to see to, approve or supervise the proper application of such proceeds. If the proceeds are held by Beneficiary to be used to reimburse Trustor for the costs of restoration and repair of the Property, the Property shall be restored to the equivalent of its original condition, or such other condition as Beneficiary may approve in writing. Beneficiary may, at Beneficiary's option, condition disbursement of the proceeds on Beneficiary's approval of such plans and specifications prepared by an architect satisfactory to Beneficiary, contractor's cost estimates, architect's certificates, waivers of liens, sworn statements of mechanics and materialmen, and such other evidence of costs, percentage of completion of construction, application of payments, and satisfaction of liens as Beneficiary may reasonably require.
5.4 Insurance. Trustor shall provide and maintain in force at all times all risk property damage insurance (including without limitation windstorm coverage, and hurricane coverage as applicable) on the Property and such other type of insurance on the Property as may be required by Beneficiary in its reasonable judgment. At Beneficiary's request, Trustor shall provide Beneficiary with a counterpart original of any policy, together with a certificate of insurance setting forth the coverage, the limits of liability, the carrier, the policy number and the expiration date. Each such policy of insurance shall be in an amount, for a term, and in form and content satisfactory to Beneficiary, and shall be written only by companies approved by Beneficiary. In addition, each policy of hazard insurance shall include a Form 438BFU or equivalent loss payable endorsement in favor of Beneficiary.
5.5 Maintenance and Preservation of Property.
(a) Trustor shall keep the Property in good condition and repair and shall not commit or allow waste of the Property. Trustor shall not remove or demolish the Property or any part of it, or alter, restore or add to the Property, or initiate or allow any change in any zoning or Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -6-
other land use classification which affects the Property or any part of it, except with Beneficiary's express prior written consent in each instance.
(b) If all or part of the Property becomes damaged or destroyed, Trustor shall promptly and completely repair and/or restore the Property in a good and workmanlike manner in accordance with sound building practices, regardless of whether or not Beneficiary agrees to disburse insurance proceeds or other sums to pay costs of the work of repair or reconstruction under Paragraph 5.3.
(c) Trustor shall not commit or allow any act upon or use of the Property which would violate any applicable law or order of any governmental authority, whether now existing or later to be enacted and whether foreseen or unforeseen, or any public or private covenant, condition, restriction or equitable servitude affecting the Property. Trustor shall not bring or keep any article on the Property or cause or allow any condition to exist on it, if that could invalidate or would be prohibited by any insurance coverage required to be maintained by Trustor on the Property or any part of it under this Deed of Trust.
(d) If Trustor's interest in the Property is a leasehold interest, Trustor shall observe and perform all obligations of Trustor under any lease or leases and shall refrain from taking any actions prohibited by any lease or leases. Trustor shall preserve and protect the leasehold estate and its value.
(e) If the Property is agricultural, Trustor shall farm the Property in a good and husbandlike manner. Trustor shall keep all trees, vines and crops on the Property properly cultivated, irrigated, fertilized, sprayed and fumigated, and shall replace all dead or unproductive trees or vines with new ones. Trustor shall prepare for harvest, harvest, remove and sell any crops growing on the Property. Trustor shall keep all buildings, fences, ditches, canals, wells and other farming improvements on the Property in first class condition, order and repair. (f) Trustor shall perform all other acts which from the character or use of the Property may be reasonably necessary to maintain and preserve its value.
5.6 Releases, Extensions, Modifications and Additional Security. Without affecting the personal liability of any person, including Trustor (or Obligor, if different from Trustor), for the payment of the Secured Obligations or the lien of this Deed of Trust on the remainder of the Property for the unpaid amount of the Secured Obligations, Beneficiary and Trustee are respectively empowered as follows:
(a) Beneficiary may from time to time and without notice:
(i) release any person liable for payment of any Secured Obligation; (ii) extend the time for payment, or otherwise alter the terms of payment, of any Secured Obligation;
(iii) accept additional real or personal property of any kind as security for any Secured Obligation, whether evidenced by deeds of trust, mortgages, security agreements or any other instruments of security; or
(iv) alter, substitute or release any property securing the Secured Obligations.
(b) Trustee may perform any of the following acts when requested to do so by Beneficiary in writing:
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(i) consent to the making of any plat or map of the Property or any part of it;
(ii) join in granting any easement or creating any restriction affecting the Property;
(iii) join in any subordination or other agreement affecting this Deed of Trust or the lien of it; or
(iv) reconvey the Property or any part of it without any warranty.
5.7 Reconveyance. When all of the Secured Obligations have been paid in full and no further commitment to extend credit continues, Trustee shall reconvey the Property, or so much of it as is then held under this Deed of Trust, without warranty to the person or persons legally entitled to it. In the reconveyance, the grantee may be described as "the person or persons legally entitled thereto," and the recitals of any matters or facts shall be conclusive proof of their truthfulness. Neither Beneficiary nor Trustee shall have any duty to determine the rights of persons claiming to be rightful grantees of any reconveyance.
5.8 Compensation and Reimbursement of Costs and Expenses. (a) Trustor agrees to pay fees in the maximum amounts legally permitted, or reasonable fees as may be charged by Beneficiary and Trustee when the law provides no maximum limit, for any services that Beneficiary or Trustee may render in connection with this Deed of Trust, including Beneficiary's providing a statement of the Secured Obligations or Trustee's rendering of services in connection with a reconveyance. Trustor shall also pay or reimburse all of Beneficiary's and Trustee's costs and expenses which may be incurred in rendering any such services.
(b) Trustor further agrees to pay or reimburse Beneficiary for all costs, expenses and other advances which may be incurred or made by Beneficiary or Trustee to protect or preserve the Property or to enforce any terms of this Deed of Trust, including the exercise of any rights or remedies afforded to Beneficiary or Trustee or both of them under Paragraph 6.3, whether any lawsuit is filed or not, or in defending any action or proceeding arising under or relating to this Deed of Trust, including attorneys' fees and other legal costs, costs of any sale of the Property and any cost of evidence of title.
(c) Trustor shall pay all obligations arising under this Paragraph immediately upon demand by Trustee or Beneficiary. Each such obligation shall be added to, and considered to be part of, the principal of the Secured Obligations, and shall bear interest from the date the obligation arises at the rate provided in any instrument or agreement evidencing the Secured Obligations. If more than one rate of interest is applicable to the Secured Obligations, the highest rate shall be used for purposes hereof.
5.9 Exculpation and Indemnification.
(a) Beneficiary shall not be directly or indirectly liable to Trustor or any other person as a consequence of any of the following:
(i) Beneficiary's exercise of or failure to exercise any rights, remedies or powers granted to it in this Deed of Trust;
(ii) Beneficiary's failure or refusal to perform or discharge any obligation or liability of Trustor under any agreement related to the Property or under this Deed of Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -8-
Trust;
(iii) Beneficiary's failure to produce Rents from the Property or to perform any of the obligations of the lessor under any lease covering the Property; (iv) any waste committed by lessees of the Property or any other parties, or any dangerous or defective condition of the Property; or (v) any loss sustained by Trustor or any third party resulting from any act or omission of Beneficiary in operating or managing the Property upon exercise of the rights or remedies afforded Beneficiary under Paragraph 6.3, unless the loss is caused by the willful misconduct and bad faith of Beneficiary.
Trustor hereby expressly waives and releases all liability of the types described above, and agrees that no such liability shall be asserted against or imposed upon Beneficiary. (b) Trustor agrees to indemnify Trustee and Beneficiary against and hold them harmless from all losses, damages, liabilities, claims, causes of action, judgments, court costs, attorneys' fees and other legal expenses, cost of evidence of title, cost of evidence of value, and other costs and expenses which either may suffer or incur in performing any act required or permitted by this Deed of Trust or by law or because of any failure of Trustor to perform any of its obligations. This agreement by Trustor to indemnify Trustee and Beneficiary shall survive the release and cancellation of any or all of the Secured Obligations and the full or partial release and/or reconveyance of this Deed of Trust.
5.10 Defense and Notice of Claims and Actions. At Trustor's sole expense, Trustor shall protect, preserve and defend the Property and title to and right of possession of the Property, and the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee created under it, against all adverse claims. Trustor shall give Beneficiary and Trustee prompt notice in writing if any claim is asserted which does or could affect any of these matters, or if any action or proceeding is commenced which alleges or relates to any such claim.
5.11 Substitution of Trustee. From time to time, Beneficiary may substitute a successor to any Trustee named in or acting under this Deed of Trust in any manner now or later to be provided at law, or by a written instrument executed and acknowledged by Beneficiary and recorded in the office of the recorder of the county where the Property is situated. Any such instrument shall be conclusive proof of the proper substitution of the successor Trustee, who shall automatically upon recordation of the instrument succeed to all estate, title, rights, powers and duties of the predecessor Trustee, without conveyance from it.
5.12 Representation and Warranty Regarding Hazardous Substances. Before signing this Deed of Trust, Trustor researched and inquired into the previous uses and ownership of the Property.
Based on that due diligence, Trustor represents and warrants that to the best of its knowledge, no hazardous substance has been disposed of or released or otherwise exists in, on, under or onto the Property, except as Trustor has disclosed to Beneficiary in writing. Trustor further represents and warrants that Trustor has complied, and will comply and cause all occupants of the Property to comply, with all current and future laws, regulations and ordinances or other requirements of any governmental authority relating to or imposing liability or standards of conduct concerning protection of health or the environment or hazardous substances (“Environmental Laws”). Trustor shall promptly, at Trustor’s sole cost and expense, take all reasonable actions with respect to any hazardous substances or other environmental condition at, on, or under the Property necessary to (i) comply with all applicable Environmental Laws; (ii) allow continued use, occupation or operation of the Property; or (iii) maintain the fair market value of the Property. Trustor acknowledges that hazardous substances may permanently and materially impair the value and use of the Property. "Hazardous substance" means any substance, Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -9-
material or waste that is or becomes designated or regulated as "toxic," "hazardous," "pollutant," or "contaminant" or a similar designation or regulation under any current or future federal, state or local law (whether under common law, statute, regulation or otherwise) or judicial or administrative interpretation of such, including without limitation petroleum or natural gas.
5.13 Site Visits, Observation and Testing. Beneficiary and its agents and representatives shall have the right at any reasonable time, after giving reasonable notice to Trustor, to enter and visit the Property for the purposes of performing appraisals, observing the Property, taking and removing environmental samples, and conducting tests on any part of the Property. Trustor shall reimburse Beneficiary on demand for the costs of any such environmental investigation and testing.
Beneficiary will make reasonable efforts during any site visit, observation or testing conducted pursuant this Paragraph to avoid interfering with Trustor’s use of the Property. Beneficiary is under no duty, however, to visit or observe the Property or to conduct tests, and any such acts by Beneficiary will be solely for the purposes of protecting Beneficiary’s security and preserving Beneficiary’s rights under this Deed of Trust. No site visit, observation or testing or any report or findings made as a result thereof (“Environmental Report”) (i) will result in a waiver of any default of Trustor; (ii) impose any liability on Beneficiary; or (iii) be a representation or warranty of any kind regarding the Property (including its condition or value or compliance with any laws) or the Environmental Report (including its accuracy or completeness). In the event Beneficiary has a duty or obligation under applicable laws, regulations or other requirements to disclose an Environmental Report to Trustor or any other party, Trustor authorizes Beneficiary to make such a disclosure. Beneficiary may also disclose an Environmental Report to any regulatory authority, and to any other parties as necessary or appropriate in Beneficiary’s judgment.
Trustor further understands and agrees that any Environmental Report or other information regarding a site visit, observation or testing that is disclosed to Trustor by Beneficiary or its agents and representatives is to be evaluated (including any reporting or other disclosure obligations of Trustor) by Trustor without advice or assistance from Beneficiary.
5.14 Additional Provisions Relating to Condominiums. If the Property is subject to a condominium declaration of conditions, covenants and restrictions recorded in the official records of the county in which the Property is located (the "Declaration"), the following provisions shall apply. (a) The provisions contained in this Deed of Trust are obligations of Trustor in addition to Trustor’s obligations under the Declaration with respect to similar matters, and shall not restrict or limit Trustor’s duties and obligations to keep and perform promptly all of its obligations as unit owner under the Declaration.
(b) Trustor shall at all times fully perform and comply with all the agreements, covenants, terms and conditions imposed upon unit owners under the Declaration, and if Trustor fails to do so, Beneficiary may (but shall not be obligated to) take any action Beneficiary deems necessary or desirable to prevent or cure any default thereunder. Beneficiary may also take such action as it deems necessary or desirable to cure a default under the Declaration by Trustor or any other party occupying the unit(s) (a “Unit Occupant”) encumbered by this Deed of Trust, upon receipt by Beneficiary from the condominium association under the Declaration (the “Association”) of written notice of such default, even though the existence of such default or the nature thereof may be questioned or denied by Trustor or by any party on behalf of Trustor.
Beneficiary may pay and expend such sums of money as Beneficiary in its sole discretion deems necessary to prevent or cure any default by Trustor or a Unit Occupant, and Trustor hereby agrees to pay to Beneficiary, immediately and without demand, all such sums so paid and expended by Beneficiary, together with interest thereon from the date of each such payment at the rate (the "Demand Rate") of two percent (2%) in excess of the then current rate of interest under the Debt Instrument. All sums so paid and expended by Beneficiary, and the interest thereon, shall be added to and be secured by the lien of this Deed of Trust. At Beneficiary's request, Trustor will submit satisfactory evidence of payment of all of its monetary obligations under the Declaration (including but not limited to rents, taxes, assessments, insurance premiums and operating expenses).
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(c) At Beneficiary's request, Trustor will submit satisfactory evidence of payment of all of its monetary obligations under the Declaration (including but not limited to rents, taxes, assessments, insurance premiums and operating expenses). (d) Trustor shall advise Beneficiary in writing of the giving of any notice to Trustor by the Association under the Declaration of any default by Trustor as unit owner or by a Unit Occupant thereunder in the performance or observance of any of the terms, conditions and covenants to be performed or observed by Trustor or such Unit Occupant thereunder, and Trustor shall deliver to Beneficiary a true copy of each such notice. (e) If any action, proceeding, motion or notice shall be commenced or filed in respect of the Association in connection with any case (including a case commenced or filed under the Bankruptcy Code), Beneficiary shall have the option, to the exclusion of Trustor, exercisable upon notice from Beneficiary to Trustor, to conduct and control any such litigation with counsel of Beneficiary’s choice. Beneficiary may proceed in its own name or in the name of Trustor in connection with any such litigation, and Trustor agrees to execute any and all powers, authorizations, consents or other documents required by Beneficiary in connection therewith.
Trustor shall, upon demand, pay to Beneficiary all costs and expenses (including attorneys’ fees) paid or incurred by Beneficiary in connection with the prosecution or conduct of any such proceedings. Any such costs or expenses not paid by Trustor as aforesaid shall be secured by the lien of this Deed of Trust and shall be added to the principal amount of the indebtedness secured hereby. Trustor shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Declaration in any such case without the prior written consent of Beneficiary.
(f) Trustor will use its best efforts to obtain and deliver to Beneficiary within twenty (20) days after written request by Beneficiary, an estoppel certificate from the Association setting forth (i) the name of the unit owner, (ii) that the Declaration has not been modified or, if it has been modified, the date of each modification (together with copies of each such modification), (iii) the amount of common expenses and other assessments payable by Trustor as unit owner under the Declaration, (iv) the date to which all common expenses and other assessments have been paid by Trustor as unit owner under the Declaration, (v) whether there are any alleged defaults by Trustor or a Unit Occupant under the Declaration and, if so, setting forth the nature thereof in reasonable detail, and (vi) as to such other matters as Beneficiary may reasonably request.
(g) Trustor represents and warrants to Beneficiary that as of the date hereof, no default under the Declaration has occurred and is continuing. (h) Trustor shall take such actions as may be reasonable to insure that the Association maintains a public liability insurance policy acceptable in form, amount, and extent of coverage to Beneficiary.
(i) Trustor shall not, except after notice to Beneficiary and with Beneficiary’s prior written consent, either partition or subdivide the Property or consent to:
(i) the abandonment or termination of the condominium(s) encumbered by this Deed of Trust, except for abandonment or termination required by law in the case of substantial destruction by fire or other casualty or in the case of a taking by condemnation or eminent domain;
(ii) any amendment to any provision of the Declaration, the Association’s bylaws or articles or any rules and regulations promulgated by the Association; (iii) termination of professional management and assumption of selfmanagement of the Association; or Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -11-
(iv) any action which would have the effect of rendering the public liability insurance coverage maintained by the Association unacceptable to Beneficiary.
6. ACCELERATING TRANSFERS, DEFAULT AND REMEDIES.
6.1 Accelerating Transfers
(a) "Accelerating Transfer" means any sale, contract to sell, conveyance, encumbrance, or other transfer, whether voluntary, involuntary, by operation of law or otherwise, of all or any material part of the Property or any interest in it, including any transfer or exercise of any right to drill for or to extract any water (other than for Trustor's own use), oil, gas or other hydrocarbon substances or any mineral of any kind on or under the surface of the Property. If Trustor is a corporation, "Accelerating Transfer" also means any transfer or transfers of shares possessing, in the aggregate, more than fifty percent (50%) of the voting power. If Trustor is a partnership, "Accelerating Transfer" also means withdrawal or removal of any general partner, dissolution of the partnership under applicable law, or any transfer or transfers of, in the aggregate, more than fifty percent (50%) of the partnership interests. If Trustor is a limited liability company, “Accelerating Transfer” also means withdrawal or removal of any managing member, termination of the limited liability company or any transfer or transfers of, in the aggregate, more than fifty percent (50%) of the voting power or in the aggregate more than fifty percent of the ownership of the economic interest in the Trustor.
(b) Trustor agrees that Trustor shall not make any Accelerating Transfer, unless the transfer is preceded by Beneficiary's express written consent to the particular transaction and transferee. Beneficiary may withhold such consent in its sole discretion. If any Accelerating Transfer occurs, Beneficiary in its sole discretion may declare all of the Secured Obligations to be immediately due and payable, and Beneficiary and Trustee may invoke any rights and remedies provided by Paragraph 6.3 of this Deed of Trust.
6.2 Events of Default. The occurrence of any one or more of the following events, at the option of Beneficiary, shall constitute an event of default ("Event of Default") under this Deed of Trust:
(a) Obligor fails to make any payment, when due, under the Debt Instrument (after giving effect to any applicable grace period), or any other default occurs under and as defined in the Debt Instrument or in any other instrument or agreement evidencing any of the Secured Obligations and such default continues beyond any applicable cure period; (b) Trustor fails to make any payment or perform any obligation which arises under this Deed of Trust;
(c) Trustor makes or permits the occurrence of an Accelerating Transfer in violation of Paragraph 6.1;
(d) Any representation or warranty made in connection with this Deed of Trust or the Secured Obligations proves to have been false or misleading in any material respect when made;
(e) Any default occurs under any other deed of trust on all or any part of the Property, or under any obligation secured by such deed of trust, whether such deed of trust is prior to or subordinate to this Deed of Trust; or
(f) An event occurs which gives Beneficiary the right or option to terminate any Swap Contract secured by this Deed of Trust.
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6.3 Remedies. At any time after the occurrence of an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all of the rights and remedies described below, as well as any other rights and remedies authorized by law. All of such rights and remedies shall be cumulative, and the exercise of any one or more of them shall not constitute an election of remedies. (a) Beneficiary may declare any or all of the Secured Obligations to be due and payable immediately, and may terminate any Swap Contract secured by this Deed of Trust in accordance with its terms.
(b) Beneficiary may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Beneficiary, in person, by agent or by court-appointed receiver, may enter, take possession of, manage and operate all or any part of the Property, and in its own name or in the name of Trustor sue for or otherwise collect any and all Rents, including those that are past due, and may also do any and all other things in connection with those actions that Beneficiary may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include: entering into, enforcing, modifying, or canceling leases on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying Rents; completing any unfinished construction; contracting for and making repairs and alterations; performing such acts of cultivation or irrigation as necessary to conserve the value of the Property; and preparing for harvest, harvesting and selling any crops that may be growing on the property. Trustor hereby irrevocably constitutes and appoints Beneficiary as its attorney-in-fact to perform such acts and execute such documents as Beneficiary in its sole discretion may consider to be appropriate in connection with taking these measures, including endorsement of Trustor's name on any instruments. Trustor agrees to deliver to Beneficiary all books and records pertaining to the Property, including computer-readable memory and any computer hardware or software necessary to access or process such memory, as may reasonably be requested by Beneficiary in order to enable Beneficiary to exercise its rights under this Paragraph.
(d) Either Beneficiary or Trustee may cure any breach or default of Trustor, and if it chooses to do so in connection with any such cure, Beneficiary or Trustee may also enter the Property and/or do any and all other things which it may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include:
appearing in and/or defending any action or proceeding which purports to affect the security of, or the rights or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing, contesting or compromising any encumbrance, charge, lien or claim of lien which in Beneficiary's or Trustee's sole judgment is or may be senior in priority to this Deed of Trust, such judgment of Beneficiary or Trustee to be conclusive as among the parties to this Deed of Trust; obtaining insurance and/or paying any premiums or charges for insurance required to be carried under this Deed of Trust; otherwise caring for and protecting any and all of the Property; and/or employing counsel, accountants, contractors and other appropriate persons to assist Beneficiary or Trustee.
Beneficiary and Trustee may take any of the actions permitted hereunder either with or without giving notice to any person.
(e) Beneficiary may bring an action in any court of competent jurisdiction to foreclose this instrument or to obtain specific enforcement of any of the covenants or agreements of this Deed of Trust.
(f) Beneficiary may cause the Property which consists solely of real property to be sold by Trustee as permitted by applicable law. Before any such trustee's sale, Beneficiary or Trustee shall give such notice of default and election to sell as may then be required by law.
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When all time periods then legally mandated have expired, and after such notice of sale as may then be legally required has been given, Trustee shall sell the Property, either as a whole or in separate parcels, and in such order as Trustee may determine, at a public auction to be held at the time and place specified in the notice of sale. Neither Trustee nor Beneficiary shall have any obligation to make demand on Trustor before any trustee's sale. From time to time in accordance with then applicable law, Trustee may, and in any event at Beneficiary's request shall, postpone any trustee's sale by public announcement at the time and place noticed for that sale. At any trustee's sale, Trustee shall sell to the highest bidder at public auction for cash in lawful money of the United States. Any person, including Trustor, Trustee or Beneficiary, may purchase at the trustee's sale. Trustee shall execute and deliver to the purchaser(s) a deed or deeds conveying the property being sold without any covenant or warranty whatsoever, express or implied. The recitals in any such deed of any matters or facts, including any facts bearing upon the regularity or validity of any trustee's sale, shall be conclusive proof of their truthfulness. Any such deed shall be conclusive against all persons as to the facts recited in it. (g) Beneficiary may proceed under the Uniform Commercial Code as to all or any part of the Personalty, and in conjunction therewith may exercise all of the rights, remedies and powers of a secured creditor under the Uniform Commercial Code. When all time periods then legally mandated have expired, and after such notice of sale as may then be legally required has been given, Trustee may sell the Personalty at a public sale to be held at the time and place specified in the notice of sale. It shall be deemed commercially reasonable for the Trustee to dispose of the Personalty without giving any warranties as to the Personalty and specifically disclaiming all disposition warranties. Alternatively, Beneficiary may choose to dispose of some or all of the Property, in any combination consisting of both personal property and real property, in one sale to be held in accordance with the law and procedures applicable to real property, as permitted by Article 9 of the Uniform Commercial Code. Trustor agrees that such a sale of personal property together with real property constitutes a commercially reasonable sale of the personal property.
6.4 Application of Sale Proceeds and Rents.
(a) Beneficiary and Trustee shall apply the proceeds of any sale of the Property in the following manner: first, to pay the portion of the Secured Obligations attributable to the costs, fees and expenses of the sale, including costs of evidence of title in connection with the sale; and, second, to pay all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose. The remainder, if any, shall be remitted to the person or persons entitled thereto.
(b) Beneficiary shall apply any and all Rents collected by it, and any and all sums other than proceeds of any sale of the Property which Beneficiary may receive or collect under Paragraph 6.3, in the following manner: first, to pay the portion of the Secured Obligations attributable to the costs and expenses of operation and collection that may be incurred by Trustee, Beneficiary or any receiver; and, second, to pay all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose. The remainder, if any, shall be remitted to the person or persons entitled thereto. Beneficiary shall have no liability for any funds which it does not actually receive.
7. MISCELLANEOUS PROVISIONS
7.1 No Waiver or Cure.
(a) Each waiver by Beneficiary or Trustee must be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or Trustee to take action on account of any default of Trustor. Consent by Beneficiary Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -14-
or Trustee to any act or omission by Trustor shall not be construed as a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary's or Trustee's consent to be obtained in any future or other instance.
(b) If any of the events described below occurs, that event alone shall not cure or waive any breach, Event of Default or notice of default under this Deed of Trust or invalidate any act performed pursuant to any such default or notice; or nullify the effect of any notice of default or sale (unless all Secured Obligations then due have been paid and performed); or impair the security of this Deed of Trust; or prejudice Beneficiary, Trustee or any receiver in the exercise of any right or remedy afforded any of them under this Deed of Trust; or be construed as an affirmation by Beneficiary of any tenancy, lease or option, or a subordination of the lien of this Deed of Trust:
(i) Beneficiary, its agent or a receiver takes possession of all or any part of the Property;
(ii) Beneficiary collects and applies Rents, either with or without taking possession of all or any part of the Property;
(iii) Beneficiary receives and applies to any Secured Obligation proceeds of any Property, including any proceeds of insurance policies, condemnation awards, or other claims, property or rights assigned to Beneficiary under this Deed of Trust;
(iv) Beneficiary makes a site visit, observes the Property and/or conducts tests thereon;
(v) Beneficiary receives any sums under this Deed of Trust or any proceeds of any collateral held for any of the Secured Obligations, and applies them to one or more Secured Obligations;
(vi) Beneficiary, Trustee or any receiver performs any act which it is empowered or authorized to perform under this Deed of Trust or invokes any right or remedy provided under this Deed of Trust.
7.2 Powers of Beneficiary and Trustee.
(a) Trustee shall have no obligation to perform any act which it is empowered to perform under this Deed of Trust unless it is requested to do so in writing and is reasonably indemnified against loss, cost, liability and expense.
(b) Beneficiary may take any of the actions permitted under Paragraphs 6.3(b) and/or 6.3(c) regardless of the adequacy of the security for the Secured Obligations, or whether any or all of the Secured Obligations have been declared to be immediately due and payable, or whether notice of default and election to sell has been given under this Deed of Trust. (c) From time to time, Beneficiary or Trustee may apply to any court of competent jurisdiction for aid and direction in executing the trust and enforcing the rights and remedies created under this Deed of Trust. Beneficiary or Trustee may from time to time obtain orders or decrees directing, confirming or approving acts in executing this trust and enforcing these rights and remedies.
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7.3 Nonborrower Trustor.
(a) If any Trustor ("Nonborrower Trustor") is not the Obligor under the Debt Instrument described in Paragraph 2.1(a), such Nonborrower Trustor authorizes Beneficiary to perform any of the following acts at any time, all without notice to Nonborrower Trustor and without affecting Beneficiary's rights or Nonborrower Trustor's obligations under this Deed of Trust:
(i) Beneficiary may alter any terms of the Debt Instrument or any part of it, including renewing, compromising, extending or accelerating, or otherwise changing the time for payment of, or increasing or decreasing the rate of interest on, the Debt Instrument or any part of it;
(ii) Beneficiary may take and hold security for the Debt Instrument, accept additional or substituted security for the Debt Instrument, and subordinate, exchange, enforce, waive, release, compromise, fail to perfect, sell or otherwise dispose of any such security;
(iii) Beneficiary may apply any security now or later held for the Debt Instrument in any order that Beneficiary in its sole discretion may choose, and may direct the order and manner of any sale of all or any part of it and bid at any such sale; (iv) Beneficiary may release Obligor of its liability for the Debt Instrument or any part of it;
(v) Beneficiary may substitute, add or release any one or more guarantors or endorsers of the Debt Instrument; and
(vi) Beneficiary may extend other credit to Obligor, and may take and hold security for the credit so extended, whether or not such security also secures the Debt Instrument.
(b) Nonborrower Trustor waives:
(i) Any right it may have to require Beneficiary to proceed against Obligor, proceed against or exhaust any security held from Obligor, or pursue any other remedy in Beneficiary's power to pursue;
(ii) Any defense based on any legal disability of Obligor, any discharge or limitation of the liability of Obligor to Beneficiary, whether consensual or arising by operation of law or any bankruptcy, reorganization, receivership, insolvency, or debtor-relief proceeding, or from any other cause, or any claim that Nonborrower Trustor's obligations exceed or are more burdensome than those of Obligor; (iii) All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the existence, creation, or incurring of new or additional indebtedness of Obligor, and demands and notices of every kind; (iv) Any defense based on or arising out of any defense that Obligor may have to the payment or performance of the Debt Instrument or any part of it; and (v) Until the Secured Obligations have been paid and performed in full, all rights of subrogation, reimbursement, indemnification and contribution (contractual, Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -16-
statutory or otherwise), including any claim or right of subrogation under the Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute, all rights to enforce any remedy that the Beneficiary may have against Obligor, and all rights to participate in any security now or later to be held by Beneficiary for the Debt Instrument. (c) Nonborrower Trustor waives any rights or defenses that are or may become available to Nonborrower Trustor by reason of Sections 2787 to 2855, inclusive, of the California Civil Code.
(d) Nonborrower Trustor waives all rights and defenses that Nonborrower Trustor may have because the Debt Instrument may be secured by real property other than the Property hereby encumbered. This means, among other things: (i) Beneficiary may collect from Nonborrower Trustor (including enforcing this Deed of Trust against Nonborrower Trustor) without first foreclosing on any real or personal property collateral securing the Debt instrument; and (ii) if Beneficiary forecloses on any real property collateral securing the Debt Instrument: (A) the amount of the Debt Instrument may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Beneficiary may collect from Nonborrower Trustor (including enforcing this Deed of Trust against Nonborrower Trustor) even if Beneficiary, by foreclosing on the real property collateral, has destroyed any right Nonborrower Trustor may have to collect from Obligor. This is an unconditional and irrevocable waiver of any rights and defenses Nonborrower Trustor may have because the Debt Instrument may be secured by real property other than the Property hereby encumbered. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. (e) Nonborrower Trustor waives any right or defense it may have at law or equity, including California Code of Civil Procedure Section 580a, to a fair market value hearing or action to determine a deficiency judgment after a foreclosure of any real property other than the Property hereby encumbered.
(f) Nonborrower Trustor assumes full responsibility for keeping informed of Obligor's financial condition and business operations and all other circumstances affecting Obligor's ability to pay and perform its obligations to Beneficiary, and agrees that Beneficiary shall have no duty to disclose to Nonborrower Trustor any information which Beneficiary may receive about Obligor's financial condition, business operations, or any other circumstances bearing on its ability to perform.
(g) No provision or waiver in this Deed of Trust shall be construed as limiting the generality of any other provision or waiver contained in this Deed of Trust. (h) For purposes of this Paragraph 7.3, all references to the Debt Instrument shall also include any instrument or agreement executed by Obligor subsequent to the date of this Deed of Trust which is secured by this Deed of Trust in accordance with the provisions of Paragraphs 2.1(c) and 2.1(d).
7.4 Merger. No merger shall occur as a result of Beneficiary's acquiring any other estate in or any other lien on the Property unless Beneficiary consents to a merger in writing.
7.5 Joint and Several Liability. If Trustor consists of more than one person, each shall be jointly and severally liable for the faithful performance of all of Trustor's obligations under this Deed of Trust.
7.6 Applicable Law. This Deed of Trust shall be governed by the laws of the State of California (“Governing Law State”).
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7.7 Successors in Interest. The terms, covenants and conditions of this Deed of Trust shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties.
However, this Paragraph does not waive the provisions of Paragraph 6.1.
7.8 Dispute Resolution Provision. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” Beneficiary and Trustor (and any other party to this Deed of Trust) agree that this Dispute Resolution Provision is a material inducement for their entering into this Deed of Trust.
(a) Scope. This Dispute Resolution Provision concerns the resolution of any disputes, controversies, claims, counterclaims, allegations of liability, theories of damage, or defenses (collectively, a “Claim” or “Claims”) between Beneficiary, on the one hand, and Trustor and/or any Obligor, on the other hand (each side being, for the purposes of this Dispute Resolution Provision, a “Party” and the two sides together being the “Parties”), regardless of whether based on federal, state, or local law, statute, ordinance, regulation, contract, common law, or any other source, and regardless of whether foreseen or unforeseen, suspected or unsuspected, or fixed or contingent at the time of this Deed of Trust, including but not limited to Claims that arise out of or relate to: (i) this Deed of Trust (including any renewals, extensions or modifications); or (ii) any document related to this Deed of Trust. For the purposes of this Dispute Resolution Provision only, the terms “Beneficiary” or Party or Parties (to the extent referring to or including Beneficiary) shall include any parent corporation, subsidiary or affiliate of Beneficiary. (b) Judicial Reference. Any Claim brought by any Party in a California state court shall be resolved by a general reference to a referee (or a panel of referees) as provided in California Code of Civil Procedure Section 638. The referee (or presiding referee of the panel) shall be a retired Judge or Justice of the California state court system. The referee(s) shall be selected by mutual written agreement of the parties. If the parties do not agree, the referee(s) shall be selected by the Presiding Judge of the Court (or his or her representative) as provided in California Code of Civil Procedure Section 640. The referee(s) shall hear and determine all issues relating to the Claim, whether of fact or of law, and shall do so in accordance with the laws of the Governing Law State and the California rules of evidence and civil procedure, and shall report a statement of decision. The referee(s) shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable and legal orders that will be binding on the parties, and rule on any motion which would be authorized in court litigation, including without limitation motions to dismiss, for summary judgment, or for summary adjudication. The referee(s) shall award legal fees and costs (including the fees of the referee(s)) relating to the judicial reference proceeding, and to any related litigation or arbitration, in accordance with the terms of this Deed of Trust. The award that results from the decision of the referee(s) shall be entered as a judgment in the court that appointed the referee(s), in accordance with the provisions of California Code of Civil Procedure Sections 644(a). Pursuant to California Code of Civil Procedure Sections 645, the parties reserve the right to seek appellate review of any judgment or order, including but not limited to, orders pertaining to class certification, to the same extent permitted in a court of law.
(c) Arbitration Provisions. The Parties agree that judicial reference pursuant to Subsection (b) above is the preferred method of dispute resolution of all Claims, when available.
The Parties therefore agree that injunctive relief, including a temporary restraining order, without the posting of any bond or security, shall be appropriate to enjoin the prosecution of any arbitration proceeding where the Claims at issue become subject to (and as long as they remain subject to) judicial reference pursuant to Subsection (b) above, provided that a Party moves for such relief within thirty (30) days of its receipt of a demand for arbitration of a Claim. However, with respect to any Claim brought in a forum other than a California state court, or brought in a California state court but judicial reference pursuant to Subsection (b) above is not available or enforced by the court, the arbitration provisions in this Subsection (c) (collectively, the “Arbitration Provisions”) shall apply to the Claim. In addition, if either of the Parties serves demand for arbitration of a Claim in accordance with these Arbitration Provisions, and the other Party does Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -18-
not move to enjoin the arbitration proceeding within thirty (30) days of receipt of the demand, the right to judicial reference shall be waived and the Claim shall remain subject to these Arbitration Provisions thereafter. The inclusion of these Arbitration Provisions in this Deed of Trust shall not otherwise be deemed as any limitation or waiver of the judicial reference provisions. The Arbitration Provisions are as follows:
(i) For any Claim for which these Arbitration Provisions apply (as defined in the immediately preceding paragraph), the Parties agree that at the request of any Party to this Deed of Trust, such Claim shall be resolved by binding arbitration. The Claims shall be governed by the laws of the Governing Law State without regard to its conflicts of law principles. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “Act”), shall apply to the construction, interpretation, and enforcement of these Arbitration Provisions, as well as to the confirmation of or appeal from any arbitration award. (ii) Arbitration proceedings will be determined in accordance with the Act, the then-current Commercial Finance rules and procedures of the American Arbitration Association or any successor thereof (“AAA”) (or any successor rules for arbitration of financial services disputes), and the terms of these Arbitration Provisions.
In the event of any inconsistency, the terms of these Arbitration Provisions shall control.
The arbitration shall be administered by the Parties and not the AAA and shall be conducted, unless otherwise required by law, at a location selected solely by Beneficiary in any U.S. state where real or tangible personal property collateral for this credit is located or where Trustor has a place of business. If there is no such state, Beneficiary shall select a location in the Governing Law State.
(iii) If aggregate Claims are One Million Dollars ($1,000,000) or less:
(A) All issues shall be heard and determined by one neutral arbitrator. The arbitrator shall have experience with commercial financial services disputes and, if possible, prior judicial experience, and shall be selected pursuant to the AAA “Arbitrator Select: List and Appointment” process, to be initiated by Beneficiary. If the AAA “Arbitrator Select: List and Appointment” process is unavailable, Beneficiary shall initiate any successor process offered by the AAA or a similar process offered by any other nationally recognized alternative dispute resolution organization.
(B) Unless the arbitrator has a dispositive motion under advisement or unforeseeable and unavoidable conflicts arise (as determined by the arbitrator), all arbitration hearings shall commence within ninety (90) days of the appointment of the arbitrator, and under any circumstances the award of the arbitrator shall be issued within one hundred twenty (120) days of the appointment of the arbitrator.
(C) A Party shall be entitled to take no more than two (2) fact depositions, one or both of which may be taken in accordance with Fed. R. Civ.
P. 30(b)(6), plus depositions of any experts designated by the other Party, each of seven (7) hours or less, during pre-hearing discovery. (D) There shall be no written discovery requests except a Party may serve document requests on the other Party not to exceed twenty (20) in number, including subparts. The requests shall be served within forty-five (45) days of the appointment of the arbitrator and shall be responded to within twentyone (21) days of service. (iv) If aggregate Claims exceed One Million Dollars ($1,000,000):
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(A) The issues shall be heard and determined by one neutral arbitrator selected as above unless either Party requests that all issues be heard and determined by three (3) neutral arbitrators. In that event, each Party shall select an arbitrator with experience with commercial financial services disputes, and the two arbitrators shall select a third arbitrator, who shall have prior judicial experience. If the arbitrators cannot agree, the third arbitrator shall be selected pursuant to the AAA “Arbitrator Select: List and Appointment” process, to be initiated by Beneficiary.
(B) Unless the arbitrator(s) have a dispositive motion under advisement or other good cause is shown (as determined by the arbitrator(s)), all arbitration hearings shall commence within one hundred twenty (120) days of the appointment of the arbitrator(s), and under any circumstances the award of the arbitrator(s) shall be issued within one hundred eighty (180) days of the appointment of the arbitrator(s).
(C) A Party shall be entitled to take no more than five (5) fact depositions, one or more of which may be taken in accordance with Fed. R. Civ.
P. 30(b)(6), plus depositions of any experts designated by the other Party, each of seven (7) hours or less, during pre-hearing discovery. (D) There shall be no written discovery requests except a Party may serve document requests on the other Party not to exceed thirty (30) in number, including subparts. The requests shall be served within forty-five (45) days of the appointment of the arbitrator(s) and shall be responded to within twenty-one (21) days of service.
(v) Where a Party intends to rely upon the testimony of an expert on an issue for which the Party bears the burden of proof, the expert(s) must be disclosed within thirty (30) days following the appointment of the arbitrator(s), including a written report in accordance with Fed. R. Civ. P. 26(a)(2)(B). The arbitrator(s) shall exclude any expert not disclosed strictly in accordance herewith. The other Party shall have the right within thirty (30) days thereafter to take the deposition of the expert(s) (upon payment of the expert’s reasonable fees for the in-deposition time), and to identify rebuttal expert(s), including a written report in accordance with Fed. R. Civ. P. 26(a)(2)(B). (vi) The arbitrator(s) shall consider and rule on motions by the Parties to dismiss for failure to state a claim; to compel; and for summary judgment, in a manner substantively consistent with the corresponding Federal Rules of Civil Procedure. The arbitrator(s) shall enforce the “Apex” doctrine with regard to requested depositions of high-ranking executives of both Parties. The arbitrator(s) shall exclude any Claim not asserted within thirty (30) days following the demand for arbitration. This shall not prevent a Party from revising the calculation of damages on any existing theory. All discovery shall close at least one (1) week before any scheduled hearing date, and all hearing exhibits shall have been exchanged by the same deadline or they shall not be given weight by the arbitrator(s).
(vii) The arbitrator(s) will give effect to applicable statutes of limitation in determining any Claim and shall dismiss the Claim if it is barred by the statutes of limitation. For purposes of the application of any statutes of limitation, the service of a written demand for arbitration or counterclaim pursuant to the Notices provision of this Deed of Trust is the equivalent of the filing of a lawsuit. At the request of any Party made at any time, including at confirmation of an award, the resolution of a statutes of limitation defense to any Claim shall be decided de novo by a court of competent jurisdiction rather than by the arbitrator(s). Otherwise, any dispute concerning these Arbitration Provisions or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -20-
otherwise set forth in this Dispute Resolution Provision. (viii) The arbitrator(s) shall have the power to award legal fees and costs relating to the arbitration proceeding and any related litigation or arbitration, pursuant to the terms of this Deed of Trust. The arbitrator(s) shall provide a written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced. (ix) The filing of a court action is not intended to constitute a waiver of the right of any Party, including the suing Party, thereafter to require submittal of the Claims to arbitration, unless the Party fails to make such demand for arbitration within ninety (90) days following the filing of the court action. (x) The arbitration proceedings shall be private. All documents, transcripts, and filings received by any Party shall not be disclosed by the recipient to any third parties other than attorneys, accountants, auditors, and financial advisors acting in the course of their representation, or as otherwise ordered by a court of competent jurisdiction. Any award also shall be kept confidential, although this specific requirement shall be void once the award must be submitted to a court for enforcement. The Parties agree that injunctive relief, including a temporary restraining order, from a trial court is the appropriate relief for breach of this paragraph, and they waive any security or the posting of a bond as a requirement for obtaining such relief.
(d) Self-Help. This Dispute Resolution Provision does not limit the right of any Party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights; or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(e) Class Action Waiver. Any arbitration or court trial (whether before a judge or jury or pursuant to judicial reference) of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). THE CLASS
ACTION WAIVER PRECLUDES ANY PARTY FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION REGARDING A CLAIM.
Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court or referee and not by an arbitrator. The Parties to this Deed of Trust acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the Parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the Parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. THE PARTIES
ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL A CLASS ACTION BE ARBITRATED.
(f) Jury Waiver. By agreeing to judicial reference or binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury as permitted by law in respect of any Claim. Furthermore, without intending in any way to limit the provisions hereof, to the extent any Claim is not submitted to judicial reference or arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury to the extent permitted by law in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY
JUDICIAL REFERENCE, BY ARBITRATION, OR BY TRIAL BY A JUDGE, THE PARTIES
AGREE AND UNDERSTAND THAT THE EFFECT OF THIS DISPUTE RESOLUTION
PROVISION IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW. EACH PARTY HERETO (i) CERTIFIES THAT NO Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -21-
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS DEED OF TRUST AND THE OTHER DOCUMENTS CONTEMPLATED
HEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION AND (iii) CERTIFIES THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE.
7.9 Interpretation. Whenever the context requires, all words used in the singular will be construed to have been used in the plural, and vice versa, and each gender will include any other gender.
The captions of the sections of this Deed of Trust are for convenience only and do not define or limit any terms or provisions. The word "include(s)" means "include(s), without limitation," and the word "including" means "including, but not limited to." The word "obligations" is used in its broadest and most comprehensive sense, and includes all primary, secondary, direct, indirect, fixed and contingent obligations. It further includes all principal, interest, prepayment charges, late charges, loan fees and any other fees and charges accruing or assessed at any time, as well as all obligations to perform acts or satisfy conditions. No listing of specific instances, items or matters in any way limits the scope or generality of any language of this Deed of Trust. The Exhibits to this Deed of Trust are hereby incorporated in this Deed of Trust.
7.10 In-House Counsel Fees. Whenever Trustor is obligated to pay or reimburse Beneficiary or Trustee for any attorneys' fees, those fees shall include the allocated costs for services of in-house counsel.
7.11 Waiver of Marshaling. Trustor waives all rights, legal and equitable, it may now or hereafter have to require marshaling of assets or to direct the order in which any of the Property will be sold in the event of any sale under this Deed of Trust, including any rights provided by California Civil Code Sections 2899 and 3433, as such Sections may be amended from time to time. Each successor and assign of Trustor, including any holder of a lien subordinate to this Deed of Trust, by acceptance of its interest or lien agrees that it shall be bound by the above waiver, as if it had given the waiver itself.
7.12 Severability. If any provision of this Deed of Trust should be held unenforceable or void, that provision shall be deemed severable from the remaining provisions and in no way affect the validity of this Deed of Trust except that if such provision relates to the payment of any monetary sum, then Beneficiary may, at its option, declare all Secured Obligations immediately due and payable.
7.13 Notices. Trustor hereby requests that a copy of notice of default and notice of sale be mailed to it at the address set forth below. That address is also the mailing address of Trustor as debtor under the Uniform Commercial Code. Beneficiary's address given below is the address for Beneficiary as secured party under the Uniform Commercial Code.
Addresses for Notices to Trustor: Seatec Underground Utilities, Inc. 467 Airport Blvd
Salinas, California 93905
Address for Notices to Beneficiary: Bank of America, N.A.
Bank of America, N.A.
Doc Retention Center
Gateway Village-900 Building
NC1-026-06-06
900 W Trade St
Charlotte, NC 28255
Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -22-
7.14 Leasehold Rider. The Leasehold Rider to Deed of Trust attached hereto is incorporated herein by this reference.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first above written.
TRUSTOR
Seatec Underground Utilities, Inc.,
a California corporation
By:_____________________________
Michael Bikle, CEO
Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -23-
LEASEHOLD RIDER TO DEED OF TRUST
THIS LEASEHOLD RIDER TO DEED OF TRUST (“Rider”) is attached to and forms a part of that certain Leasehold Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of June ___, 2023 and executed by Seatec Underground Utilities, Inc., a California corporation, as “Trustor” to PRLAP, Inc. as “Trustee” for the benefit of Bank of America, N.A., a national banking association, as “Beneficiary” (the “Deed of Trust”). Capitalized terms used in this Rider and not otherwise defined herein shall have the same meaning as in the Deed of Trust.
1. Leasehold Estate. All or a portion of Trustor’s interest in the Property consists of a leasehold estate created pursuant to that certain Lease dated September 20, 2016, between the City of Salinas, a California charter city and municipal corporation of the State of California, as lessor, and Trustor, as lessee, a memorandum of which was recorded on September 28, 2016, as Instrument No. 2016056441, of Official Records of Monterey County, California, as amended by that certain First Amendment to Ground Lease dated August 27, 2019, and that certain Second Amendment to Ground Lease dated September 1, 2021, a memorandum of which was recorded on April 5, 2023, as Instrument No. 2023010018, in the Official Records of Monterey County, California, which is hereinafter referred to as the “Ground Lease.” The landlord under the Ground Lease is hereinafter referred to as “Landlord.”
2. Representations of Trustor. Trustor hereby represents and warrants that: (i) the Ground Lease is unmodified (except as identified in 1., above) and is in full force and effect; (ii) all rents and other charges to be paid by Trustor as tenant under the Ground Lease are current; (iii) Trustor is not in default under any of the provisions of the Ground Lease and no circumstances exist which would constitute a default by Trustor under the Ground Lease or would otherwise permit Landlord to cancel, terminate or otherwise limit the Ground Lease in any manner; (iv) Trustor is not aware of any default by Landlord under the Ground Lease or the existence of circumstances which would constitute a default by Landlord under the Ground Lease; (v) Trustor’s interest in the Ground Lease is subject to no liens or encumbrances except as previously disclosed to Beneficiary in writing; and (vi) Trustor owns and holds the Ground Lease and the entire leasehold estate created by the Ground Lease and has the right under the Ground Lease or has received all appropriate consents required in order for Trustor to execute this Deed of Trust.
3. Performance. In no event shall Trustor do or permit to be done or omit to do or permit the omission of any act, the doing or omission of which would impair the security of this Deed of Trust or would constitute grounds for the termination of the Ground Lease or would entitle Landlord to declare a forfeiture or termination of the Ground Lease or to re-enter the Property. Trustor agrees to pay, keep and perform all covenants, conditions, agreements and obligations of the tenant set forth in the Ground Lease, and not to commit or permit any breach thereof.
4. Notices. Trustor shall promptly (i) send to Beneficiary a copy of any notice from Landlord claiming the existence of a default by Trustor under the Ground Lease or the existence of any circumstances which would constitute such a default, and (ii) notify Beneficiary in writing of the existence of any default by Landlord under the Ground Lease or the existence of any circumstances which would constitute such a default.
5. Independent Obligation. Trustor agrees that the provisions hereof shall be deemed to be obligations of Trustor in addition to Trustor’s obligations as tenant with respect to similar matters contained in the Ground Lease; provided, however, the inclusion herein of any covenants relating to similar matters under which Trustor is obligated under the Ground Lease shall not restrict or limit Trustor’s duties and obligations to keep and perform promptly all of its covenants as tenant under the Ground Lease, and nothing in this Deed of Trust shall be construed as requiring the taking of or the omitting to take any action by Trustor or Beneficiary which would cause a default under the Ground Lease. Trustor further agrees that no release or forbearance of any of Trustor’s obligations under the Ground Lease, pursuant to the Ground Lease or otherwise, shall release Trustor from any of its obligations under this Deed of Trust.
Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -24-
6. No Merger. Trustor agrees that so long as this Deed of Trust is in effect, there shall be no merger of the Ground Lease or any interest therein, nor of the leasehold estate created thereby with the fee estate in the Property or any portion thereof, by reason of the fact that the Ground Lease may be held directly or indirectly by or for the account of any person who shall hold the fee estate in the Property. If Trustor acquires the fee title or any other estate, title or interest in the Property, this Deed of Trust shall attach to and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the lien of this Deed of Trust. Trustor shall notify Beneficiary of any such acquisition by Trustor and, on written request by Beneficiary, shall cause to be executed and recorded such further documents or instruments as may in the sole discretion of Beneficiary be necessary or desirable to carry out the intent hereof.
7. No Modification or Surrender. Trustor agrees that (i) no surrender or termination of the Ground Lease (except a surrender upon the expiration of the term of the Ground Lease or the termination by Landlord pursuant to the provisions thereof) shall be valid or effective, and (ii) neither the Ground Lease nor the terms thereof may be amended, supplemented, surrendered or cancelled, or subordinated to any fee mortgage, to any lease, or to any other interest, either orally or in writing, without the prior written consent of Beneficiary, and Trustor agrees that any such action, without the prior written consent of Beneficiary, shall be void and constitute an Event of Default under this Deed of Trust.
8. Arbitration Proceedings. Trustor shall promptly notify Beneficiary in writing upon the initiation of any arbitration or appraisal proceedings under and pursuant to the provisions of the Ground Lease.
Trustor shall not designate, appoint or select an arbitrator or appraiser in any such proceedings without the prior written consent of Beneficiary.
9. Trustor’s Default Under Ground Lease.
9.1 Beneficiary’s Additional Rights. If Trustor shall default under the Ground Lease, in addition to all the rights and remedies provided for in this Deed of Trust and available at law, Beneficiary may, at its option but without any obligation to do so, take any action necessary or desirable to cure any default by Trustor in the performance of any of the terms, covenants and conditions of the Ground Lease. Trustor shall, upon demand, pay to Beneficiary all costs incurred by Beneficiary in curing or attempting to cure such default, together with interest on such costs from the date of expenditure at the rate applicable pursuant to the Debt Instrument, and all such sums shall be secured by this Deed of Trust. Upon receipt by Beneficiary of any written notice of default by Trustor under the Ground Lease, Beneficiary may rely thereon and take any action to cure such default even though the existence or nature of the default may be disputed by Trustor. Trustor hereby grants to Beneficiary, and agrees that Beneficiary shall have, the absolute and immediate right to enter in and upon the Property or any part thereof to such extent and as often as Beneficiary, in its sole discretion, deems necessary or desirable in order to prevent or cure any default by Trustor. Notwithstanding the foregoing nor anything to the contrary contained in this Rider, this Deed of Trust shall not constitute a present assignment of the Ground Lease and Beneficiary does not hereby assume, nor shall Beneficiary be deemed to assume or otherwise be responsible for, performance of the obligations of Trustor as tenant under the Ground Lease. Beneficiary shall be liable for the obligations of the Trustor as tenant under the Ground Lease only during the period of time which Beneficiary is in possession of the Property or has acquired, by foreclosure or otherwise, and is holding, all of Trustor’s right, title and interest in the Ground Lease.
9.2 Additional Event of Default. Any breach or default by Trustor of any term, condition or covenant contained in the Ground Lease or the occurrence of any circumstances which would permit Landlord to cancel, terminate or otherwise limit the Ground Lease in any manner shall constitute an Event of Default under this Deed of Trust.
10. Notice to Landlord. Promptly after the execution and delivery of this Deed of Trust, Trustor shall notify Landlord in writing of such execution and delivery and provide Landlord with a copy of this Deed of Trust.
Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -25-
11. Estoppel Certificate. Trustor shall promptly furnish to Beneficiary all information that Beneficiary may request concerning the performance by Trustor of its obligations under the Ground Lease. Promptly upon demand by Beneficiary, Trustor shall obtain from Landlord and furnish to Beneficiary an estoppel certificate executed by Landlord stating, among other things, the date through which rent has been paid, whether or not there are any defaults under the Ground Lease, and the nature of such defaults.
12. New Lease. Trustor agrees that, if the Ground Lease is for any reason whatsoever terminated prior to the natural expiration of its term and Beneficiary or its designee shall acquire from Landlord a new lease of the Property or any part thereof, Trustor shall have no right, title or interest in or to such new lease or the leasehold estate created thereby.
13. Notice of Bankruptcy. Trustor shall promptly notify Beneficiary orally of any filing by or against Landlord or Trustor of a petition under the Bankruptcy Code, Title 11 of the United States Code (as the same may be amended or recodified from time to time, the “Bankruptcy Code”). Trustor shall promptly thereafter give written notice of such filing to Beneficiary, setting forth any information available to Trustor including the date of such filing, the court in which such petition was filed, and the relief sought therein.
Trustor shall promptly deliver to Beneficiary, any and all notices, summonses, pleadings, applications and other documents received by Trustor in connection with any such petition and any proceedings relating thereto.
14. Restriction on Actions under Bankruptcy Code. Trustor shall not commence any action, suit, proceeding or case, or file any application or make any motion in respect of the Ground Lease in any such case, without the prior written consent of Beneficiary.
15. Bankruptcy of Landlord.
15.1 Election in Bankruptcy. Trustor acknowledges that, pursuant to Section 365 of the Bankruptcy Code, it is possible that a trustee in bankruptcy of Landlord or Landlord as a debtor-in-possession could reject the Ground Lease, in which case Trustor, as tenant, would have the election described in Section 365(h) of the Bankruptcy Code (which election, as the same may be amended, revised or recodified from time to time, and together with any comparable right under any other state or federal law relating to bankruptcy, reorganization or other relief for debtors, whether now or hereafter in effect, is herein called the “Election”) to treat the Ground Lease as terminated by such rejection or, in the alternative, to remain in possession for the balance of the term of such Ground Lease and any renewal or extension thereof that is enforceable by the tenant under applicable non-bankruptcy law. Trustor covenants that it will not suffer or permit the termination of the Ground Lease by exercise of the Election or otherwise without the prior written consent of Beneficiary. Trustor acknowledges that, since the Ground Lease is a primary part of Beneficiary’s security for the obligations secured under this Deed of Trust, Beneficiary does not anticipate that it would consent to termination of the Ground Lease and shall not under any circumstances be obliged to give such consent.
15.2 Assignment of Election. In order to secure the covenants made in Section 15.1 and as security for the other obligations secured under this Deed of Trust, Trustor assigns the Election to Trustee and Beneficiary. Trustor acknowledges and agrees that Trustee and Beneficiary may use the Election at any time in order to protect and preserve the rights and interests of Trustee and Beneficiary under this Deed of Trust, since exercise of the Election in favor of terminating the Ground Lease would constitute waste hereunder.
15.3 Effect of Assignment. Trustor acknowledges and agrees that the Election is in the nature of a remedy and is not a property interest which Trustor can separate from the Ground Lease. Therefore, Trustor agrees that exercise of the Election in favor of preserving the right to possession under the Ground Lease shall not be deemed to constitute a taking or sale of the Property by Trustee or Beneficiary and shall not entitle Trustor to any credit against the obligations secured by this Deed of Trust.
15.4 Right to Possession. Trustor acknowledges and agrees that, in the event the Election is exercised in favor of Trustor remaining in possession, Trustor’s resulting right to possession and use of Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -26-
(and rents and profits from) the Property, as adjusted by the effect of Section 365 of the Bankruptcy Code, whether or not all or any part of the Property has been subleased, shall then be part of the Trust Estate and shall be subject to the lien created by this Deed of Trust. However, Trustor acknowledges and agrees that said right to possession and use of the Property as so adjusted shall not be equivalent to the leasehold interest which is included in the Trust Estate at the time of execution of this Deed of Trust.
15.5 Assignment of Rights Arising from Rejection of Ground Lease. Trustor hereby unconditionally assigns, transfers and sets over to Beneficiary all of Trustor’s claims and rights to the payment of damages arising from any rejection by Landlord of the Ground Lease under the Bankruptcy Code. Beneficiary shall have the right to proceed in its own name or in the name of Trustor in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the obligations secured by this Deed of Trust shall have been fully satisfied and discharged. Any amounts received by Beneficiary as damages arising out of the rejection of the Ground Lease shall be applied first to all costs and expenses of Beneficiary (including, without limitation, attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this Section 15 and then to the indebtedness secured hereby.
16. Bankruptcy of Trustor.
16.1 Assumption of Lease by Beneficiary. If there shall be filed by or against Trustor a petition under the Bankruptcy Code, and Trustor, as tenant under the Ground Lease, shall determine to reject the Ground Lease pursuant to the Bankruptcy Code, Trustor shall give Beneficiary not less than thirty (30) days’ prior notice of the date on which Trustor shall apply to the Bankruptcy Court for authority to reject the Ground Lease. Beneficiary shall have the right, but not the obligation, to serve upon Trustor within such thirty (30) day period a notice stating that (i) Beneficiary demands that Trustor assume and assign the Ground Lease to Beneficiary pursuant to Section 365 of the Bankruptcy Code, and (ii) Beneficiary agrees to cure or provide adequate assurance of prompt cure of all defaults reasonably susceptible of cure by Beneficiary and provides adequate assurance of future performance under the Ground Lease. If Beneficiary serves upon Trustor the notice described in the preceding sentence, Trustor shall not seek the rejection of the Ground Lease and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given, subject to the performance by Beneficiary of the agreement provided for in clause (ii) of the preceding sentence.
16.2 Beneficiary’s Right to File for Extension. Effective upon the entry of an order for relief in respect of Trustor under the Bankruptcy Code, Trustor hereby assigns and transfers to Beneficiary a non-exclusive right to apply to the Bankruptcy Court for an order extending the period during which the Ground Lease may be rejected or assumed.
This Rider may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same document. Trustor has caused this Rider to be executed as of the day and year first above written.
TRUSTOR:
Seatec Underground Utilities, Inc.,
a California corporation
By:_____________________________
Michael Bikle, CEO
Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -27-
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California }
}
County of _______________________ }
On _______________ before me, ______________________________________________________, (Here insert name and title of the officer)
personally appeared _________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature__________________________________________ (Seal) Seatec Underground Utilities, Inc. / Leasehold Deed of Trust / 3.20.23 -28-
EXHIBIT A TO DEED OF TRUST
Exhibit A to DEED OF TRUST executed as of June ___, 2023, by Seatec Underground Utilities, Inc., a California corporation, as "Trustor" to PRLAP, Inc. as "Trustee" for the benefit of Bank of America, N.A., a national banking association, as "Beneficiary." Description of Property
The leasehold estate as created by that certain lease dated September 20, 2016, executed by City of Salinas, a municipal corporation, as lessor, and Seatec Underground Utilities Inc., a California corporation, as lessee, as referenced in the document entitled Memorandum of Lease, which was recorded September 28, 2016 at 2016056441, Official Records, for the term, upon and subject to all the provisions contained in said document, and in said lease, and as contained in the modification of said lease, executed by City of Salinas, a municipal corporation and Seatec Underground Utilities, Inc., and recorded April 5, 2023 at 2023010018, Official Records, in the real property described below, together with all rights and privileges of Trustor under any option to purchase said real property or any right of first refusal granted to Trustor under the lease or otherwise, and all right title and interest which Trustor now has or may hereafter acquire in and to said real property and in any to the buildings and improvements located thereon as of the date of the lease or at any time thereafter erected:
The land referred to is situated in the County of Monterey, City of Salinas, State of California, and is described as follows:
Parcel I:
Leasehold estate as created by that certain lease dated September 20, 2016, made by and between City of Salinas, a California municipal corporation and charter city, as lessor, and Seatec Underground Utilities, Inc., a California corporation, as lessee, for the term of and upon the terms and conditions contained in said lease (a memorandum, a short form, the original, a copy, etc.) thereof recorded September 28, 2016 as Document No. 2016056441, and as contained in modification of said lease, executed by City of Salinas, a municipal corporation and Seatec Underground Utilities, Inc., and recorded April 5, 2023 at 2023010018, Official Records, in and to the following:
Being a portion of that certain 155.14 acre tract of land acquired by Salinas, a municipal corporation, from Ada May Bardin by Resolution No. 1126 (N.C.S.) dated September 23, 1940 and recorded in Volume 684 at Page 403 therein, Official Records of Monterey County, California and being more particularly described as follows:
Beginning at the true point of beginning of that certain 1.0616 acre parcel designed as Parcel A as leased to Chester A. Teeters by Salinas, a municipal corporation, by lease indenture as recorded in Reel 1048 at Page 166, Monterey County Records; thence from said point of beginning, South 6° 06’ 00” West, 116.00 feet along the Westerly line of said Parcel A, to the corner common to said Parcel A and Parcel B of said lease said point being the True Point of Beginning; thence leaving the boundary of said Parcel A and running the following courses:
1) South 32 ° 35' 42" West, 184.36 feet to an angle point; thence 2) North 83 ° 54' 00" West, 406.55 feet to the southerly line of Airport Boulevard, a city street 84 feet wide; thence
3) North 57 ° 47' 00" East, 266.12 feet along said southerly line of Airport Boulevard, to the southerly corner of that certain 0.711 acre parcel designated as Parcel 1 as leased to Wells Fargo by Salinas, a municipal corporation, by lease indenture as recorded in Reel 659 at