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Home My Public Portal AboutCC Agenda Packet 04.18.2023 CITY COUNCIL REGULAR SESSION AGENDA Tuesday, April 18, 2023 Regular Meeting: 6:00 PM 550 E. Sixth Street, Beaumont, CA Materials related to an item on this agenda submitted to the City Council after distribution of the agenda packets are available for public inspection in the City Clerk’s office at 550 E. 6th Street during normal business hours. MEETING PARTICIPATION NOTICE This meeting will will be recorded for live streaming as well as open to public attendance. Please use the following link during the meeting for live stream access: beaumontca.gov/livestream Public comments will be accepted using the following options. 1. Written comments will be accepted via email and will be read aloud during the corresponding item of the meeting. Public comments shall not exceed three (3) minutes unless otherwise authorized by City Council. Comments can be submitted anytime prior to the meeting as well as during the meeting up until the end of the corresponding item. Please submit your comments to: nicolew@beaumontca.gov 2. Phone-in comments will be accepted by joining a conference line prior to the corresponding item of the meeting. Public comments shall not exceed three (3) minutes unless otherwise authorized by City Council. Please use the following phone number to join the call (951) 922 - 4845. 3. In-person comments are accepted by notifying the City Clerk using a provided Request to Speak Form prior to the start of the Public Comment Period. Public comments shall not exceed three (3) minutes unless otherwise authorized by City Council. In compliance with the American Disabilities Act, if you require special assistance to participate in this meeting, please contact the City Clerk's office using the above email or call (951) 572 - 3196. Notification 48 hours prior to a meeting will ensure the best reasonable accommodation arrangements. Pages REGULAR SESSION A.CALL TO ORDER Mayor Martinez, Mayor Pro Tem Fenn, Council Member Lara, Council Member Voigt, Council Member White Report out from Closed Session Action on any Closed Session Items Action of any Requests for Excused Absence Pledge of Allegiance Invocation Adjustments to the Agenda Conflict of Interest Disclosure B.ANNOUNCEMENTS / RECOGNITION / PROCLAMATIONS / CORRESPONDENCE World Wish Day Proclamation C.PUBLIC COMMENT PERIOD (ITEMS NOT ON THE AGENDA) Any one person may address the City Council on any matter not on this agenda. If you wish to speak, please fill out a “Public Comment Form” provided at the back table and give it to the City Clerk. There is a three (3) minute time limit on public comments. There will be no sharing or passing of time to another person. State Law prohibits the City Council from discussing or taking actions brought up by your comments. D.CONSENT CALENDAR Items on the consent calendar are taken as one action item unless an item is pulled for further discussion here or at the end of action items. Approval of all Ordinances and Resolutions to be read by title only. D.1 Ratification of Warrants 7 Recommended Action: Ratify Warrants dated: March 30, 2023 April 6, 2023 D.2 Approval of Minutes 44 Recommended Action: Approve Minutes dated April 4, 2023. D.3 Approval to Increase Purchase Order 22/231299 to H2O Innovation USA, Inc. in the amount of $40,000 for Reverse Osmosis Chemicals 54 Increase H2O Innovation approved spending by $40,000. Recommended Action: Increase Purchase Order 22/231299 by $40,000 to H2O Innovations for a total purchase order amount of $64,900 allocated to 700-4050-7070- 0000. Page 2 of 350 D.4 Second Reading to Adopt an Ordinance Amending Chapter 3.01 of the Beaumont Municipal Code – Specific Provisions for Bidding, Contracting and Purchases 57 Adoption of an ordinance amending Beaumont Municipal Code Chapter 3.01 Recommended Action: Waive the second full reading and adopt by title only, “An Ordinance of the City Council of the City of Beaumont, California amending Chapter 3.01 concerning specific provisions for bidding, contracting and purchases of the City of Beaumont Municipal Code.” D.5 Bond Exoneration for Survey Monuments for Tract Map No. 31462-8 74 Bond Exoneration for survey monuments associated with Tract Map No. 31462-8. Recommended Action: Authorize staff to issue a bond exoneration letter for monument bonds for Tract Map No. 31462-8, bond number 0206492. D.6 Second Amendment of an Agreement to Extend the Contract for Professional Services with Burrtec Waste Industries, Inc. to Provide Sludge Hauling Services for the Wastewater Treatment Plant 112 City staff is requesting approval of the Second Amendment to extend the contract for Sludge Hauling Services with Burrtec Waste Industries. Recommended Action: Approve the Second Amendment of an Agreement to extend the existing contract for Professional Services with Burrtec Waste Industries, Inc., to Provide Sludge Hauling Services for the Wastewater Treatment Plant through April 30, 2024. D.7 FY2022-2023 3rd Quarter Cash and Investment Report 131 Receive and file FY2022-2023 3rd Quarter Cash and Investment Report. Recommended Action: Receive and file report. D.8 FY2022-2023 3rd Quarter Budget Update and Financial Status Report 164 Receive a report on the status of the City’s budget and financial status as of March 31, 2023. Recommended Action: Receive and file report. D.9 Adopt the Resolution for the Authorization and Execution of the Certifications and Assurances and Authorized Agent forms for the Low Carbon Transit Operations Program (LCTOP) 172 Low Carbon Transit Operations Program (LCTOP) for the following project: Discounted Fare Promotion, $323,000. Recommended Action: Page 3 of 350 Waive the full reading and adopt by title only “A Resolution of the City Council of the City of Beaumont for Authorization for the Execution of the Certifications and Assurances and Authorized Agent Forms for the Low Carbon Transit Operations Program (LCTOP) for the Following Project: Discounted Fare Promotion, $323,000”, Execute the Certifications and Assurances Form, and Execute the Authorized Agent Form. D.10 Lease Agreement With 4th Street Industrial Park, LLC for Public Works and Waste Water Temporary Relocation 181 Authorization of Lease Agreement between the City of Beaumont and 4th Street Industrial, LLC for the temporary relocation of Public Works and Waste Water staff. Recommended Action: Authorize the City Manager to execute a 3-year lease agreement with an optional 1 year extension, with 4th Street Industrial, LLC for the property located at 252 West 4th Street. E.YOUTH COUNCIL REPORT Beaumont Youth Council Report Out and City Council Direction F.PUBLIC HEARINGS Approval of all Ordinances and Resolutions to be read by title only. F.1 Public Hearing to Consider an Approval of a Third Amendment to the City’s FY22/23-FY26/27 Capital Improvement Plan 204 Amendments include City-Wide Traffic Signal Upgrade (R-13) and Pennsylvania Widening (2017-009). Recommended Action: Hold a Public Hearing, and Waive the full reading and approve by title only, "Resolution of the City Council of Beaumont Amending the Five-Year Capital Improvement Plan for Fiscal Years 2022/2023-2026/2027.” G.ACTION ITEMS Approval of all Ordinances and Resolutions to be read by title only. G.1 FY2022-2023 Capital Improvement Project Budget Amendment 217 Budget adjustments to add funding to capital improvement projects: R-13 Citywide Traffic Signal Update and 2017-009 Pennsylvania Avenue Widening Project. Recommended Action: Approve the recommended budget adjustments as provided in Attachment A. G.2 Award a Public Works Agreement to Elecnor Belco Electric, Inc. in an Amount Not-to Exceed $203,888 for the Construction of the Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue – Capital Improvement Project No. R-13 219 Page 4 of 350 For construction of Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue. Recommended Action: Award a public works agreement to Elecnor Belco Electric, Inc. for construction of the Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue in an amount not to exceed $203,888; and, authorize the City Manager to sign change orders up to an additional $20,512 for a total construction amount of $224,400. G.3 Fourth Amendment to the Professional Services Agreement with Kimley Horn for the Pennsylvania Avenue Widening Project (CIP 2017-009), in an Amount Not to Exceed $60,940 291 Strategic Plan Priority Level 3, Target 2, Goal 9. Recommended Action: Approve a fourth amendment to the professional services agreement with Kimley Horn for the Pennsylvania Avenue Widening Project, in an amount not to exceed $60,940. G.4 Mayoral Appointment of Liaisons to the Beaumont Library District and the Cherry Festival Association 322 Liaisons will represent the City Council at various meetings of the Beaumont Library District and Cherry Festival Association. Recommended Action: Mayoral appointment of liaisons and alternates. G.5 Consider Approval of the First Amendment and Restated City Manager Employment Agreement 323 The City Council and City Manager engage in labor negotiations on an annual basis as it relates to the anniversary of the appointment date of the City Manager with the City, April 11, 2023. Recommended Action: Consider Approval of the First Amendment and Restated City Manager Employment Agreement. G.6 Approval of City Attorney Invoices for the Month of March 2023 338 Recommended Action: Approve invoices in the amount of $118,448.10. H.LEGISLATIVE UPDATES AND DISCUSSION I.ECONOMIC DEVELOPMENT UPDATE Economic Development Committee Report Out and City Council Direction J.CITY TREASURER REPORT Finance and Audit Committee Report Out and City Council Direction K.CITY CLERK REPORT L.CITY ATTORNEY REPORT M.CITY MANAGER REPORT Page 5 of 350 N.FUTURE AGENDA ITEMS O.COUNCIL REPORTS White Voigt Lara Fenn Martinez P.ADJOURNMENT The next regular meeting of the Beaumont City Council, Beaumont Financing Authority, the Beaumont Successor Agency (formerly RDA), the Beaumont Utility Authority, the Beaumont Parking Authority and the Beaumont Public Improvement Agency is scheduled for Tuesday May 2, 2023, at 6:00 p.m. unless otherwise posted. Page 6 of 350 Page 7 of 350 Page 8 of 350 Page 9 of 350 Page 10 of 350 Page 11 of 350 Page 12 of 350 Page 13 of 350 Page 14 of 350 Page 15 of 350 Page 16 of 350 Page 17 of 350 Page 18 of 350 Page 19 of 350 Page 20 of 350 Page 21 of 350 Page 22 of 350 Page 23 of 350 Page 24 of 350 Page 25 of 350 Page 26 of 350 Page 27 of 350 Page 28 of 350 Page 29 of 350 Page 30 of 350 Page 31 of 350 Page 32 of 350 Page 33 of 350 Page 34 of 350 Page 35 of 350 Page 36 of 350 Page 37 of 350 Page 38 of 350 Page 39 of 350 Page 40 of 350 Page 41 of 350 Page 42 of 350 Page 43 of 350 1 CITY COUNCIL CLOSED & REGULAR SESSION MINUTES April 4, 2023 Closed Session: 5:00 PM Regular Meeting: 6:00 PM 550 E. Sixth Street, Beaumont, CA Materials related to an item on this agenda submitted to the City Council after distribution of the agenda packets are available for public inspection in the City Clerk’s office at 550 E. 6th Street during normal business hours _____________________________________________________________________ CLOSED SESSION A. CALL TO ORDER at 5:00 p.m. Present: Mayor Martinez, Mayor Pro Tem Fenn, Council Member Lara, Council Member Voigt, Council Member White B. PUBLIC COMMENTS REGARDING CLOSED SESSION None. B.1 Conference with Legal Counsel re Potential Initiation of Litigation Pursuant to Government Code 54956.9(d)(4) One Potential Case. No reportable action. B.2 Conference with Real Property Negotiator Pursuant to Government Code Section 54956.8. Property Description: Address: 252 W. Fourth Street. Agency Negotiator: City Manager Elizabeth Gibbs or her designee. Negotiating Parties: City of Beaumont as potential lessee and Fourth Street Industrial Park as potential lessor. Under Negotiation: Price and Terms. No reportable action. Page 44 of 350 2 B.3 Public Employee Performance Evaluation Pursuant to Government Code Section 54957 Title: City Manager Non reportable action. B.4 Conference with Labor Negotiators Pursuant to Government Code Section 54957.6 Agency designated representatives: Councilmember Jessica Voigt and Mayor Pro Tem David Fenn. Unrepresented Employee: City Manager. No reportable action. C. ADJOURNMENT TO CLOSED SESSION REGULAR SESSION D. CALL TO ORDER at 6:14 p.m. Present: Mayor Martinez, Mayor Pro Tem Fenn, Council Member Lara, Council Member Voigt, Council Member White Report out from Closed Session: see above Action on any Closed Session Items: None Action of any Requests for Excused Absence: None Pledge of Allegiance Adjustments to the Agenda: None Conflict of Interest Disclosure: None E. ANNOUNCEMENTS / RECOGNITION / PROCLAMATIONS / CORRESPONDENCE E.1 One Legacy Donation Month Proclamation F. PUBLIC COMMENT PERIOD (ITEMS NOT ON THE AGENDA) A. Eventov - Representing So Cal Gas Co. Spoke to the rising costs and the discounts and grants available. G. CONSENT CALENDAR Items on the consent calendar are taken as one action item unless an item is pulled for further discussion here or at the end of action items. Approval of all Ordinances and Resolutions to be read by title only. Page 45 of 350 3 Motion by Mayor Pro Tem Fenn Second by Council Member Voigt Approved by a unanimous vote. G.1 Ratification of Warrants Ratify Warrants dated: March 20, 2023 March 24, 2023 G.2 Approval of Minutes Approve Minutes dated March 21, 2023. G.3 Authorize Changes to Wastewater Department Position Allocation The Wastewater Department seeks to replace a Wastewater Plant Operator II position with a Wastewater Plant Operator III position. Approve the elimination of one Wastewater Plant Operator II (WWPII). Approve the addition of one Wastewater Plant Operator III (WWPIII). G.4 Second Reading of Proposed Amendments to Beaumont Municipal Code Chapters 13.08.110 and 13.09 Recommended changes to Beaumont Municipal Code Chapter 13.08.110 Maintenance of Sewer Laterals and Chapter 13.09 Fat s, Oils and Grease (F.O.G.) Management in Food Service Establishments to implement the F.O.G. program and Sewer System Management Plan (SSMP). Waive the second full readings and approve by titles only, “An Ordinance of the City Council of the City of Beaumont Amending Chapter 13.08.110 Concerning Maintenance of Sewer Laterals of the City of Beaumont Municipal Code.”; and “An Ordinance of the City Council of the City of Beaumont, California Amending Chapter 13.09 Concerning Regulating Fats, Oils and Grease (F.O.G.) of the City of Beaumont Municipal Code.” G.5 Accept Public Improvements and Exonerate Maintenance Bond for Tract No. 37298-1 and Parcel Map No. 36426 Maintenance Bond Exoneration for street improvements associated with Tract Map No. 37298-1 and sewer improvements associated with Parcel Map No. 36426. Accept the public improvements, authorize the Mayor to sign the Certificate of Acceptance, and authorize staff to issue a bond exoneration letter for maintenance bonds for (Project / Bond Number / Improvement):  Tract Map No. 37298-1 / CMS331828-M / Street Page 46 of 350 4  Parcel Map No. 36426 / 107506777 / Sewer G.6 Set Time, Date and Place for a Special Workshop Set the time, date and place for a special workshop to discuss the wastewater sewer rate study. Hold a special workshop on April 10, 2023, from 4:00 – 6:00 p.m. G.7 National Opioid Settlements – Second Round Resolution to authorize the City to enter into the participation and allocation agreements for the National Opioid Settlements. Waive the full reading and adopt by title only, “A Resolution of the City Council of the City of Beaumont Authorizing the City to Enter into the Settlement Agreements with CVS, Allergan, Teva, Walmart, and Walgreens, Agree to the Terms of the Related State-Subdivision Agreements, and Authorize Entry into the Related State-Subdivision Agreements with the Attorney General.” H. YOUTH COUNCIL REPORT Beaumont Youth Council Report Out and City Council Direction I. PUBLIC HEARINGS Approval of all Ordinances and Resolutions to be read by title only. I.1 Public Hearing to Consider an Ordinance Amending Chapter 3.01 of the Beaumont Municipal Code – Specific Provisions for Bidding, Contracting and Purchases Adoption of an ordinance amending Beaumont Code Chapter 3.01. Public Hearing opened at 6:30 p.m. No speakers Public Hearing closed at 6:30 p.m. Motion by Council Member Lara Second by Council Member White Hold a Public Hearing; and Waive the full reading and approve the first reading by title only, “An Ordinance of the City Council of the City of Beaumont, California, Amending Chapter 3.01 to the City of Beaumont Municipal Code.” with changes to include wording that the purchase must have been included in the Council approved budget. As a procedure, a quarterly report will be brought to the the Financial and Audit Committee for review. Page 47 of 350 5 Approved by a unanimous vote J. ACTION ITEMS Approval of all Ordinances and Resolutions to be read by title only. J.1 Formation of CFD No. 2023-1 (Fairway Canyon) Adopt by resolution the City of Beaumont’s intent to establish City of Beaumont Community Facilities District No. 2023-1 (Fairway Canyon) and improvements therein, and to declare intention to incur bond indebtedness within each improvement area. Motion by Council Member Lara Second by Council Member White Waive the full reading and adopt by titles only, “Resolution of the City Council of the City of Beaumont, California, Declaring its Intention to Establish City of Beaumont Community Facilities District No. 2023-1 (Fairway Canyon) and Improvement Areas Therein, to Authorize the Levy of a Special Tax to Pay the Cost of Acquiring or Constructing Certain Public Facilities and Providing Certain Public Services, and Paying for Certain Incidental Expenses and to Pay Debt Service on Bonded Indebtedness" and; Adopt, "Resolution of Intention of the City Council of the City of Beaumont, California, to Incur Bonded Indebtedness within Each of Proposed Improvement Areas Nos. 1 and 2 of Proposed City of Beaumont Community Facilities District No. 2023-1 (Fairway Canyon).” Approved by a unanimous vote J.2 Approval of Fuel Source Technology for the City of Beaumont Transit Zero-Emission Bus Rollout Plan Review information for discussion and select a Fuel Source Technology to proceed with the Zero-Emission Bus Rollout and Implementation Plans. Motion by Council Member White Second by Jessica Voigt Approve the mixed-fleet fuel source technology as the recommended technology in the development of the City of Beaumont Transit Zero- Emission Bus Rollout Plan. Approved by a unanimous vote Page 48 of 350 6 J.3 Economic Development Committee Appointment Consider applicants for the vacant Business Community Member position on the Economic Development Committee. Motion by Council Member Lara Second by Mayor Martinez To appoint Allen Koblin to the business member seat on Economic Development Committee and Annette Vogt as the Alternate Member. Approved by a unanimous vote J.4 Update on Stewart Park Improvement Project – Capital Improvement Project P-10 Provide an update on the status of the Stewart Park Improvement Project. Strategic Plan Level 3, Target 5, Goal 6 Motion by Council Member White Second by Mayor Martinez Receive and file the presentation. Discuss and give direction to staff. Approved by a unanimous vote J.5 Consideration of Approval of the 2023 Fourth of July Entertainment, Production and Stage Rental Agreement with Stache Inc. dba The M&M Group and Fireworks Display with Pyro Spectaculars, Inc. Approve purchase orders and execute Professional Services Agreements with Stache Inc. dba The M&M Group and Pyro Spectaculars, Inc. Motion by Council Member White Second by Mayor Martinez Authorize the Mayor to execute the Professional Service Agreement with Stache Inc. dba The M&M Group; and Authorize staff to issue a Purchase Order in the amount of $55,000 issued to Stache Inc. dba The M&M Group. Authorize the Mayor to execute the Professional Service Agreement with Pyro Spectaculars, Inc.; and Authorize staff to issue a Purchase Order in the amount of $30,000 issued to Pyro Spectaculars, Inc. Approved by a unanimous vote Page 49 of 350 7 J.7 Approve a Purchase Order and Professional Services Agreement with Stache Inc. dba The M&M Group for a Concert in the Park in an Amount Not to Exceed $110,000 Approve a purchase order and professional services agreement for a summer concert series to include two concerts taking place on Wednesday, July 12 and Wednesday, July 19, 2023. Motion by Council Member White Second by Mayor Martinez Authorize the Mayor to execute the Professional Service Agreement with Stache Inc. dba The M&M Group; and Authorize staff to issue a Purchase Order in the amount of $110,000 issued to Stache Inc. dba The M&M Group. Approved by a unanimous vote J.6 Approve a Purchase Order and Professional Services Agreement with Stache Inc. dba The M&M Group for a Concert in the Park in an Amount Not to Exceed $55,000 Approve a purchase order and professional services agreement for one summer concert to take place on Wednesday, June 28, 2023. Motion by Council Member Voigt Second by Council Member Lara Authorize the Mayor to execute the Professional Service Agreement with Stache Inc. dba The M&M Group; and Authorize staff to issue a Purchase Order in the amount of $55,000 issued to Stache Inc. dba The M&M Group. J.8 Surplus Frisbee Golf - Parks District Donation The surplus and donation of current frisbee golf equipment at Nicklaus Park. Motion by Council Member White Second by Council Member Lara Approve the disposal and donation of identified City surplus property. Approved by a unanimous vote J.9 Direction to City Staff on Proposed Amendments to Beaumont Municipal Code Section 17.07 - Signs Page 50 of 350 8 Review of Code Section 17.07 – Signs for compliance with recent case law. K. Walton - Spoke to concerns of temporary signs and placement thereof. In depth discussion and direction to staff on changes to research and bring back for a Public Hearing on Municipal Code Section 17.07-Signs. J.10 Discussion and Consideration of Requested Resolution Opposing Initiative 21-0042A1 Initiative 21-0042A1: A State ballot measure which would restrict voter input and local taxing authority. Consensus to staff to prepare a letter of opposition. K. LEGISLATIVE UPDATES AND DISCUSSION K.1 AB 742 Bill Text - AB 742 Consensus to direct staff to prepare a letter of opposition. K.2 AB 1708 Bill Text - AB 1708 Consensus to direct staff to prepare a letter of support. K.3 AB 796 Bill Text - AB 796 City staff will follow this bill. K.4 AB 804 Bill Text- AB 804 City staff will follow this bill. L. ECONOMIC DEVELOPMENT UPDATE Gave a report out from a recent Downtown Business Meeting. Next EDC meeting will be April 12, 2023. Page 51 of 350 9 M. CITY TREASURER REPORT Finance and Audit Committee Report Out and City Council Direction M.1 Discussion on Sending the City Treasurer to Washington, D.C. with City Council as Part of the Delegation Team Discuss adding the City Treasurer to the Washington, D.C. delegation team. Motion by Council Member White Second by Mayor Pro Tem Fenn To welcome Treasurer Patel to the Washington D.C. Delegation Team if paid for out of pocket. Noes: Lara Approved by a 4-1 vote N. CITY CLERK REPORT No report. O. CITY ATTORNEY REPORT Update of current litigation and current projects. P. CITY MANAGER REPORT P.1 Parks Update P.2 Clean Up Event Recap Q. FUTURE AGENDA ITEMS  Resource for residents to contact local businesses  City staff first aid and safety discussion  Truck routes  Cherry Festival Sub-committee/AdHoc  Short-term rentals  Research the need for more community centers. Page 52 of 350 10 R. COUNCIL REPORTS Voigt - No report White - No report Lara - Upcoming WRCOG General Assembly Fenn - Attended Morongo Air and Ambulance ceremony, announced upcoming TNOW Meeting. Martinez - Attended IOA golf tournament, Vietnam Veteran's Event, Banning City Council Meeting, an RCA Meeting, and roundtable meeting with Congressman Ruiz. S. ADJOURNMENT at 10:26 p.m. The next regular meeting of the Beaumont City Council, Beaumont Financing Authority, the Beaumont Successor Agency (formerly RDA), the Beaumont Utility Authority, the Beaumont Parking Authority and the Beaumont Public Improvement Agency is scheduled for Tuesday April 18, 2023, at 6:00 p.m. unless otherwise posted. Page 53 of 350 Staff Report TO: City Council FROM: Thaxton Van Belle, General Manager of Utilities DATE April 18, 2023 SUBJECT: Approval to Increase Purchase Order 22/231299 to H2O Innovation USA, Inc. in the amount of $40,000 for Reverse Osmosis Chemicals Description Increase H2O Innovation approved spending by $40,000. Background and Analysis: Purchases for goods and services from a single firm that will exceed $25,000 are brought to City Council per section 3.01.050 of the City’s Purchasing Ordinance. In the FY 22/23 budget, a line item in the amount of $24,900 was approved for chemicals related to the operation of the Reverse Osmosis (R.O.) System as provided by H2O Innovation. This amount was only to be used if and when the R.O. system could be brought back online after upstream system improvements. The R.O. system is now up, running, and optimized, allowing staff to properly forecast the chemical consumption for the remainder of the fiscal year, and place a proper request into the next FY budget. H2O Innovations is the parent company of PWT Chemicals which is the manufacturer of the chemical being purchased which is both proprietary and sole source, meeting the bidding requirements in City Code 3.01.090 D. The original $24,900 purchase order has been exhausted, with an additional $40,000 needed through the end of the fiscal year. Fiscal Impact: The estimated cost to prepare this staff report is $250. There is no fiscal impact to the General Fund. The Wastewater Fund is able to absorb the proposed increase in the approved budget. Recommended Action: Increase Purchase Order 22/231299 by $40,000 to H2O Innovations for a total purchase order amount of $64,900 allocated to 700-4050-7070-0000. Page 54 of 350 Attachments: A. Sole Source Letter Page 55 of 350 1048 La Mirada Court, Vista, CA 92081 Toll-free: +1 800.914.9072 genesysro.com • pwtchemicals.com 02/03/23 To whom it may concern, This letter is meant to affirm that PWT Chemicals is the sole source of SpectraGuard™ 360. It is a proprietary product manufactured and sold by PWT Chemicals and its approved distributors. It is intended for use as an online antiscalant in membrane-based water treatment systems. SpectraGuard™ 360 is a unique blend of components which offer superior protection against a wide variety of scale forming salts. Due to this unique formulation no alternative suppliers exist for this product. PWT Chemicals has over 20 years of experience providing water treatment chemicals ensuring stable and sustained performance of our customer’s systems. Sincerely, Amit Sankhe Director, Research and Scientific Services PWT Chemicals Page 56 of 350 Staff Report TO: City Council FROM: Elizabeth Gibbs, City Manager DATE April 18, 2023 SUBJECT: Second Reading to Adopt an Ordinance Amending Chapter 3.01 of the Beaumont Municipal Code – Specific Provisions for Bidding, Contracting and Purchases Description Adoption of an ordinance amending Beaumont Municipal Code Chapter 3.01 Background and Analysis: On April 4, 2023, City Council held a public hearing and waived the first full reading and adopted by title only a proposed ordinance amending Beaumont Municipal Code Chapter 3.01 – Specific Provisions for Bidding, Contracting and Purchases. Public Works Projects The proposed amendment included mirroring the language set forth in the State’s Public Contract Code (PCC) Section 22032, which states in part: (a) Public projects of sixty thousand dollars ($60,000) or less may be performed by the employees of a public agency by force account, by negotiated contract, or by purchase order. (b) Public projects of two hundred thousand dollars ($200,000) or less may be let to contract by informal procedures as set forth in this article. (c) Public projects of more than two hundred thousand dollars ($200,000) shall, except as otherwise provided in this article, be let to contract by formal bidding procedure. Staff recommended that City Council modify the BMC to affirm the City Manager’s authority to approve public works contracts by informal procedures as outlined in PCC Section 22032. Additionally, staff recommended that City Council add the following language to Section 3.01.030 as follows: Page 57 of 350 The City Manager shall report to the City Council all such projects awarded by the public project informal bidding procedure within ninety (90) days of the date of the award. Non-Public Works Projects Non-public works projects include maintenance work defined in PCC Section 22002(d). Staff recommended that non-public works projects follow similar requirements as discussed above under Public Works Projects. Materials, Supplies, and Equipment The third area included in BMC Chapter 3.01 is bidding requirements for materials, supplies, and equipment. Like the other two areas, staff recommended that City Council keep consistency with Public Works Projects and Non-Public Works Projects language as outlined above. During the public hearing, City Council directed staff to further modify the proposed ordinance to include language that affirms the City Manager’s authority only if the proposed contracting and purchases have been previously approved via the adopted budget or adopted capital improvement plan . The following language was added to Sections 3.01.030, 040, and 050 in the attached proposed ordinance (Attachment A): …so long as the public project funding was previously approved by City Council either in the adopted budget or adopted capital improvement plan. Finally, as mentioned in the staff report on April 4, 2023, other cities that follow the State’s PCC include Banning, San Jacinto, and Rialto, just to name a few. The City Attorney has reviewed and approved the additional language to the proposed ordinance. Fiscal Impact: The cost to prepare this staff report is estimated at $247. Recommended Action: Waive the second full reading and adopt by title only, “An Ordinance of the City Council of the City of Beaumont, California amending Chapter 3.01 concerning specific provisions for bidding, contracting and purchases of the City of Beaumont Municipal Code.” Page 58 of 350 Attachments: A. Ordinance with redlines Page 59 of 350 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BEAUMONT, CALIFORNIA AMENDING CHAPTER 3.01 CONCERNING SPECIFIC PROVISIONS FOR BIDDING, CONTRACTING AND PURCHASES OF THE CITY OF BEAUMONT MUNICIPAL CODE NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BEAUMONT DOES ORDAIN AS FOLLOWS: SECTION 1. CEQA. The City Council finds that the actions contemplated by this Ordinance are exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15060 (c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 2. Severability. The City Council hereby declares that if any provision, section, paragraph, sentence, or word of this Ordinance is rendered or declared to be invalid or unconstitutional by any final court action in a court of competent jurisdiction, or by reason of any preemptive legislation, such invalidity shall not affect the other provisions, sections, paragraphs, sentences or words of this Ordinance, and to this end the provisions of this Ordinance are severable. The City Council declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the Ordinance enforced. SECTION 3. Chapter 3.01 are hereby amended and restated in full to read as attached hereto as Exhibit “A”. SECTION 4. Effective Date and Publication. The Mayor shall sign and the City Clerk shall certify to the passage of this Ordinance and cause the same or a summary thereof to be published within 15 days after adoption in accordance with Government Code Section 36933. This Ordinance shall take effect 30 days after adoption in accordance with Government Code Section 36937. NOW, THEREFORE, BE IT ORDAINED that the City Council of the City of Beaumont, California, approves this amendment to the City Code. Page 60 of 350 INTRODUCED AND READ for the first time and ordered posted at a regular meeting of the City Council of the City of Beaumont, California, held on the 4th day of April 2023, by the following roll call vote: AYES: NOES ABSENT: ABSTAIN PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Beaumont, California, held on the 18th day of April 2023, by the following roll call vote: AYES: NOES ABSENT: ABSTAIN _______________________ Julio Martinez III, Mayor Attest: _______________________ Nicole Wheelwright, Deputy City Clerk Page 61 of 350 Chapter 3.01.000 – Specific Provisions for Bidding, Contracting, and Purchases Sections: 3.01.010 Definitions. 3.01.020 General Purchasing Policies and Procedures. 3.01.030 Bidding Requirements for Public Projects. 3.01.040 Bidding Requirements for Maintenance and General Services. 3.01.050 Bidding Requirements for Materials, Supplies, and Equipment. 3.01.060 Formal Bidding Procedure for Public Projects. 3.01.070 Informal Bidding Procedure for Certain Public Projects. 3.01.080 Formal Bidding Procedure for Non-Public Projects. 3.01.090 Informal Bidding Procedure for Non-Public Projects. 3.01.100 Exceptions to Competitive Bidding on Public Projects. 3.01.110 Exceptions to Competitive Bidding on Non-Public Projects. 3.01.120 City Manager Authorization to Execute Contracts. 3.01.010 Definitions. Unless otherwise indicated, the following definitions shall apply to all provisions of this chapter: "Alternative procedure" means purchasing supplies, services or equipment by negotiated contract, purchase order or any other procedure outlined in the City's purchasing and bidding policies and procedures manual approved by the City Manager and consistent with this chapter. A type of alternative procedure may include, but is not limited to, what will be referred to as a "simplified pricing procedure" wherein the Authorized Contracting Party, or his or her designee, obtains oral price quotes from one or more potential contractors or suppliers, and accepts the quote which is determined to be in the best interests of the City. "Authorized Contracting Party" means the City official or body provided with authority under this chapter by the City Manager to approve a contract or to make a purchase. "City Manager" means the City Manager or person designated by the City Manager to perform all or some of the duties prescribed in this chapter. "Commission" means the California Uniform Construction Cost Accounting Commission created by Division 2, Part 3, Chapter 2, Article 2 of the California Public Contract Code (Section 22000 et seq.). "Emergency" for purposes of public projects shall have that meaning provided in California Public Contract Code Sections 22035 and 22050. Emergency for all other purchasing or contracting purposes means a situation which makes competitive bidding, either formal or informal, impractical or not in the best interests of the City. "Facility" means any plant, building, structure, ground facility, utility system (subject to the limitation found in California Public Contract Code Section 22002, Subdivision (c)(3)), real property, streets and highways, or other public work improvement. "General services" means all services performed by persons not in a professional occupation, including, but not limited to, contract services for park, electrical and computer Page 62 of 350 repair, building, facility and vehicle maintenance, recreation programs and other similar services which are not professional services. "Maintenance work" shall have that meaning provided in Section 22002(d) of the Public Contract Code, as that section may be amended from time to time. In addition and to the extent not inconsistent with Section 22002(d), maintenance work shall include, but shall not be limited to, the following: A. Routine, recurring and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes; B. Minor repainting; C. Street and highway maintenance, including utility patching, skin patching, crack filling, filling of pot holes, slurry sealing, edge grading, street striping, resurfacing of streets and highways at less than one-inch, sign replacement, sidewalk repair and replacement, curb and gutter repair and replacement, and street and traffic light repair and replacement. Maintenance work shall not include striping of a new street or highway; D. Sewer maintenance, including foaming, videotaping, cleaning and manhole restoration; E. Traffic signal maintenance. Maintenance work shall not include installation of new traffic signals; F. Storm drain related maintenance; G. Landscape maintenance, including mowing, watering, trimming, pruning, planting, tree and plant replacement, irrigation and sprinkler system servicing, retrofit and repair and landscape rehabilitation; H. Maintenance of facilities, including roof repairs or replacements, heating and air conditioning repairs and electric repairs; I. Vehicle and equipment maintenance and repairs; J. Work performed to keep, operate, and maintain publicly owned waste disposal systems, including, but not limited to dams, reservoirs and waste treatment systems. "Professional services" means all services performed by persons in a professional occupation, including, but not limited to, consulting and performance services for legal services, accounting, auditing, computer hardware and software support, engineering, architectural, planning, environmental, redevelopment, financial, economic, personnel, social services, animal control, management, solid waste, cable television, communication and other similar professional functions which may be necessary for the operation of the City. Professional Services are governed by chapter 3.02. "Public project" shall have that meaning provided in Section 22002(c) of the Public Contract Code, as that section may be amended from time to time. A public project shall not include maintenance work. In addition and to the extent not inconsistent with Section 22002(c), public project shall include, but shall not be limited to, the following: Formatted: Indent: First line: 0.33" Page 63 of 350 1. Construction, reconstruction, erection, alteration, renovation, improvement, demolition and repair work involving any publicly owned, leased or operated facility; 2. Street or sewer work except maintenance and repair; 3. Painting or repainting of any publicly owned, leased, or operated facility; and 4. In the case of a publicly owned utility system, public project shall include only the construction, erection, improvement, or repair of dams, reservoirs, and wastewater treatment plants. "Public project formal bidding procedure" means the procedure provided for in Section 3.01.060 which meets the requirements of state and local law, including Public Contract Code Section 22037, this chapter and any policies and procedures approved by the City Manager consistent with this chapter. "Public project informal bidding procedure" means a procedure provided for in Section 3.01.070 which meets the requirements of state and local law, including Public Contract Code Section 22034, this chapter and any policies and procedures approved by the City Manager consistent with this chapter. "Purchasing Officer" means the City Manager or his or her designee(s) as provided in Section 3.00.020. Pursuant to Section 3.00.020, the City Manager may change his or her designation at any time. "Non-public project formal bidding procedure" means the procedure provided for in Section 3.01.080 which meets the requirements of state and local law, including the Public Contract Code, this chapter and any policies and procedures approved by the City Manager consistent with this chapter. "Non-public project informal bidding procedure" means the procedure provided for in Section 3.01.090 which meets the requirements of state and local law, including the Public Contract Code, this chapter and any policies and procedures approved by the City Manager consistent with this chapter. 3.01.020 General purchasing policies and procedures. A. The City shall secure supplies, services, and equipment at the lowest total cost commensurate with the quality and scope needed, and subject to any limitations imposed by state law. B. The Purchasing Officer shall develop, for approval by the City Manager, such policies and procedures as are necessary to implement the provisions of this chapter. The policies and procedures shall be written and implemented in such a way to encourage open and competitive bidding, where appropriate, provide equal opportunity based on merit, make each selection process free of invidious discrimination, provide for efficient and timely acquisition of needed supplies, services and equipment, and provide effective fiscal controls. C. In purchasing, supplies, services and equipment, the City shall make use of competitive bidding, both formal and informal, whenever required by law, this chapter or any policies and procedures approved by the City Manager consistent with this chapter. Page 64 of 350 D. Formal and informal competitive bidding is not required, for instance, when an emergency is declared pursuant to this chapter. E. Except in cases of emergency or unless specifically authorized by resolution or minute order of the City Council, the Purchasing Officer shall not issue a purchase order for supplies, services or equipment involving any project or purchase unless there exists an unencumbered appropriation in the fund account against which such purchase is to be charged. F. The City shall comply with all federal and state bidder's security and bonding requirements and all prevailing wage laws applicable to each contract or purchase. G. The Purchasing Officer, with approval of the City Manager, may provide written authorization to any department director to conduct a bidding process outside of the centralized purchasing system; provided, however, that such bidding process and the resulting contract or purchase shall otherwise comply with the requirements of this chapter. The Purchasing Officer, with approval of the City Manager, may rescind such authorization in writing at any time and for any or no reason. 3.01.030 Bidding requirements for public projects. A. Alternative Procedure (up to $60,000) (Administrative Approval). Public projects with cost estimates of $60,000) or less may be awarded by the City Manager, upon recommendation of the director of the department responsible for the project, by any alternative procedure as defined in Section 3.01.010. B. Informal Procedure (more than $60,000 —less than $200,000). Public projects with cost estimates of more than $60,000, but less than, or equal to, $200,000 shall, except as otherwise provided in this chapter or the Public Contract Code, be awarded by the City Manager pursuant to the public project informal bidding procedure in Section 3.01.070, so long as the public project funding was previously approved by City Council either in the adopted budget or adopted capital improvement plan.. The City Manager shall report to the City Council all such public projects awarded by the public project informal bidding procedure within ninety (90) days of the date of the award. If all bids received are over $200,000, the City Council may, with the approval of a four- fifths vote of those members present, award the contract in an amount not exceeding $212,500 to the lowest responsive and responsible bidder, so long as the City Council also determines that the City's cost estimate for the project was reasonable. C. Formal Procedure (more than $200,000). Public projects with cost estimates of more than $200,000 shall, except as otherwise provided in this chapter or the Public Contract Code, be awarded by the City Council pursuant to the public project formal bidding procedure in Section 3.01.060. D. City Engineer Review. The City Engineer or his designee shall review the working details, drawings, plans and specifications prepared for every maintenance project and other general services project which may affect the design or operation of public improvements and which may bring into question the City's liability for dangerous condition of public property. Page 65 of 350 E. City Council Approval. The City Council shall review and approve the working details, drawings, plans and specifications prepared for every public project of more than $200,000. F. Award. Contracts for public projects of $60,000 or less may be awarded in the best interests of the City. Contracts for public projects of more than $200,000, if awarded, shall be awarded to the lowest responsive and responsible bidder. If two or more bids are the same and the lowest, the Authorized Contracting Party may accept the one it chooses in his or her sole and absolute discretion. G. Dollar Limits and Change Orders or Amendments. The dollar limits indicated herein shall apply to the original contract and to any amendments or change orders. To this end, therefore, unless an exception provided in Section 3.01.100 applies, any contract amendment or change order which would increase the contract amount above any threshold stated herein shall comply with the requirements applicable to the increased contract amount. H. No Bid Splitting. The City shall not split a project, work, service or purchase into smaller projects, works, services or purchases for the purpose of avoiding any bidding or contracting requirements of this Code. 3.01.040 Bidding requirements for maintenance and general services. 3.01.040 Bidding requirements for maintenance and general services. A. Alternative Procedure (up to $60,000) (Administrative Approval). Maintenance work and other general services projects with cost estimates of $60,000 or less may be awarded by the City Manager, upon recommendation of the director of the department responsible for the project, by any alternative procedure as defined in Section 3.01.010. B. Informal Bidding Procedure (more than $60,000 —up to $200,000). Maintenance work and other general services projects with cost estimates of more than $60,000, but less than or equal to $200,000 shall, except as otherwise provided in this chapter, be awarded by the City Manager pursuantManager pursuant to the non-public project informal bidding procedure contained in in Section 3.01.090, so long as the public project funding was previously approved by City Council either in the adopted budget or adopted capital improvement plan. . The City Manager shall report to the City Council such maintenance work and other general services projects awarded by the informal bidding procedure within ninety (90) days of the date of the award. C. Formal Bidding Procedure (more than $200,000). Maintenance work and other general services projects with cost estimates of more than $200,000 shall, except as otherwise provided in this chapter, be awarded by the City Council pursuant to the non-public project formal bidding procedure contained in Section 3.01.080. D. City Engineer Review. The City Engineer or his designee shall review the working details, drawings, plans and specifications prepared for every maintenance project and other general services project which may affect the design or operation of public improvements, and which may bring into question the City’s liability for dangerous condition of public property. Page 66 of 350 E. Purchasing Officer Approval. The Purchasing Officer, or his or her designee, shall review and approve the working details, drawings, plans, and specifications prepared for every maintenance work and other general services project. F. City Council Approval. The City Council shall review and approve the working details, drawings, plans and specifications prepared for every maintenance work and other general services project of more than $200,000. G. Award. Contracts for maintenance work and other general services projects of $60,000 or less, if awarded, may be awarded in the best interests of the City. Contracts for maintenance work and other general services projects of more than $60,000, if awarded, shall be awarded to the lowest responsive and responsible bidder. If two or more bids are the same and the lowest, the Authorized Contracting Party may accept the one it chooses. H. Subsequent Contract Awards, Amendments, Extensions or Renewals. Notwithstanding anything herein to the contrary, the City Manager shall not award a subsequent contract to the same individual or entity for the same or similar services on the same project, or amend, extend or renew such a contract, without City Council approval, when the award, amendment, extension or renewal will result in the City paying an aggregate amount of more than $200,000 to the individual or entity in any given fiscal year. For purposes of this section, the phrase "same project" shall include an on-call or as-needed contract. I. Term Limitation. No maintenance work or other general services contract, except for contracts for solid waste services, may extend for longer than a three-year initial term with a maximum of two, one-year extensions each of which must be approved by the City Council. J. No Bid Splitting. The City shall not split a project, work, service or purchase into smaller projects, works, services or purchases for the purpose of avoiding any bidding or contracting requirements of this Code. 3.01.050 Bidding requirements for materials, supplies and equipment. A. Alternative Procedure (up to $60,000) (Administrative Approval). Purchases of materials, supplies and equipment of $60,000 or less may be awarded by the City Manager, upon recommendation of the director of the department responsible for the project, by any alternative procedure as defined in Section 3.01.010. B. Informal Bidding Procedure (more than $60,000 —less than $200,000). Purchases of materials, supplies and equipment of more than $60,000, but less than or equal to $200,000 shall, except as otherwise provided in this chapter, be awarded by the City Manager pursuant to the non-public project informal bidding procedure provided for in Section 3.01.090, so long as the public project funding was previously approved by City Council either in the adopted budget or adopted capital improvement plan. . The City Manager shall report to the City Council such purchases of materials, supplies and equipment awarded by the informal bidding procedure within ninety (90) days of the date of the award. C. Formal Bidding Procedure ($200,000 or more). Purchases of materials, supplies and equipment of more than $200,000 shall, except as otherwise provided in this chapter, be awarded by the City Council pursuant to the non-public project formal bidding procedure provided for in Section 3.010.080. Page 67 of 350 D. Department Director Approval. The director of the appropriate department shall review and approve the specifications prepared for every purchase of materials, supplies and equipment. E. Purchasing Officer Approval. The Purchasing Officer, or his or her designee, shall review and approve all contracts for the purchase of materials, supplies and equipment. F. City Council Approval. The City Council shall review and approve the specifications prepared for every purchase of materials, supplies and equipment of more than $200,000. G. Award. Contracts for the purchase of materials, supplies and equipment of $60,000 or less, if awarded, may be awarded in the best interests of the City pursuant to Section 3.01.040.G. Contracts for the purchase of materials, supplies and equipment of more than $60,000, if awarded, shall be awarded to the lowest responsive and responsible bidder pursuant to Section 3.01.040.G. If two or more bids are the same and the lowest, the Authorized Contracting Party may accept the one he or she chooses in his or her sole discretion. H. Local Bidder Preference. In order to promote the economic health of the City and to encourage local participation in the procurement of materials, supplies and equipment, the City may take into consideration the sales tax to be returned to the City as a result of an award in determining the lowest responsive and responsible bidder. This section shall not be effective unless and until the City Manager adopts a written policy to implement its provisions. I. No Bid Splitting. The City shall not split a project, work, service or purchase into smaller projects, works, services or purchases for the purpose of avoiding any bidding or contracting requirements of this Code. 3.01.060 Formal bidding procedure for public projects. A. Uses of Formal Bidding Procedure. This formal bidding procedure shall be used whenever formal bidding is required for a public project. B. Required Process. The formal competitive bidding procedure shall comply with all aspects of state and local law governing formal competitive bidding, including, but not limited to, the California Public Contract Code, California Government Code, California Labor Code, resolutions of the City Council as may be adopted from time to time, and policies and procedures as the City Manager may approve from time to time. C. Notice Inviting Formal Bids. Notice inviting formal bids shall be provided. The notice inviting formal bids shall comply with Public Contract Code Section 22037, as such section may be amended from time to time. Notices shall state the time and place for the receiving and opening of sealed bids and distinctly describe the project. At a minimum, the notice inviting formal bids shall: 1. Describe the project; 2. State how to obtain more detailed information about the project; 3. State the date, time and place for the submission of sealed bids; and 4. Include any other information required by state or local law, as determined by the City Attorney. Page 68 of 350 D. Published Notice. The notice shall be published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation printed and published in the City, or, if there is no such newspaper, in a newspaper of general circulation which is circulated in the City. E. Distribution of Notice Inviting Formal Bids. The notice inviting formal bids shall also be sent to those construction trade journals specified in Public Contract Code Section 22036 at least 30 calendar days before the date of bid opening. F. Additional Notice. The City shall also provide any additional notice as it deems proper. G. Contents of Remaining Bid and Contract Documents. The contents and form of the bid and contract documents shall be approved by the director of the appropriate department, as well as the City Attorney. H. City's Authority. The City may reject any or all bids received, and may waive any minor irregularities in each bid received. I. No Bids Received. If no bids are received, the Authorized Contracting Party may award the contract by any alternative procedure. J. Award of Contract. The contract shall be awarded in accordance with Section 3.01.030. If two or more bids are the same and the lowest, the City may accept the one it chooses in its sole and absolute discretion. K. Rejection of Bids. The City may, in its sole and absolute discretion, reject any bids presented. If after the first invitation of bids all bids are rejected, after reevaluating its cost estimates for the project, the City shall have the option of any of the following: 1. Abandon the project; or 2. Re-advertise for bids in the manner described in this chapter; or 3. By passage of a resolution by a four-fifths vote of the City Council, declare that the project can be performed more economically by the employees of the City and have the project done by force account. 3.01.070 Informal bidding procedure for certain public projects. A. Uses of Public Project Informal Bidding Procedure. This informal bidding procedure shall be used when a public project is involved, and informal bidding is permitted by this chapter. B. Distribution of Notice Inviting Informal Bids to Contractor List. The Purchasing Officer shall provide a notice inviting informal bids not less than ten calendar days before the bids are due. The notice inviting informal bids shall be mailed or provided to all construction trade journals specified in Public Contract Code Sections 22034 and 22036. C. Contents of Notice Inviting Informal Bids. At a minimum, the notice inviting informal bids shall: 1. Describe the project in general terms; 2. State how to obtain more detailed information about the project; 3. State the date, time and place for the submission of sealed bids; and Page 69 of 350 4. Include any other information required by state or local law, as determined by the City Attorney. D. Proprietary Projects or Products. If the director of the appropriate department certifies that, to the best of his or her knowledge, the product or service is proprietary in nature and can be obtained only from a limited number of contractors, and that no equivalent products or services are available, the notice inviting informal bids may be sent exclusively to such contractor or contractors. E. Contents of Remaining Bid and Contract Documents. The contents and form of the remaining bid and contract documents shall be approved by the director of the appropriate department, as well as the City Attorney. F. City's Authority. The City may reject any or all bids received, and may waive any minor irregularities in each bid received. G. No Bids Received. If no bids are received, the Authorized Contracting Party may award the contract by any alternative procedure. H. Award of Contract. The contract shall be awarded in accordance with Section 3.01.030.F. If two or more bids are the same and the lowest, the City may accept the one it chooses in its sole and absolute discretion.3.01.080 Formal bidding procedure for non-public projects. 3.01.080 Formal bidding procedure for non-public projects. A. Uses of the Non-Public Project Formal Bidding Procedure. A formal bidding procedure shall be used whenever formal bidding is required by this chapter and the project does not involve a public project. B. Distribution of Notice Inviting Formal Bids or Request for Proposals. A notice inviting formal bids or a request for proposals, as appropriate, shall be published at least 14 calendar days before the date of opening the bids or proposals in a newspaper of general circulation printed and published in the City, or, if there is no such newspaper, in a newspaper of general circulation which is circulated in the City. The notice inviting formal bids or request for proposals may also be provided directly to vendors or contractors. The City shall endeavor to receive formal bids or proposals from at least three vendors or contractors. A notice inviting bids shall be used whenever the project or purchase must be awarded to the lowest responsible and responsive bidder. A request for proposals may be used whenever the project or purchase is not required to be awarded to the lowest responsible and responsive bidder. If the Purchasing Officer and the director of the appropriate department certify that, to the best of their knowledge, there is no local source or local provider available for the project, the notice inviting bids or the request for proposals, as appropriate, may be distributed to a list of qualified vendors maintained by the Purchasing Officer and/or published in a trade journal appropriate to the project, in lieu of publication in a newspaper of general circulation. C. Contents of Notice Inviting Formal Bids or Request for Proposals. At a minimum, the notice inviting formal bids or request for proposals shall: 1. Describe the project or purchase in general terms; 2. State how to obtain more detailed information about the project or purchase; Page 70 of 350 3. State the date, time and place for the submission of bids or proposals; and 4. Include any other information required by state or local law, as determined by the City Attorney. Bids for purchases of more than $200,000 shall be sealed bids. D. Proprietary Projects or Sole Source Products. If the director of the appropriate department certifies that, to the best of his or her knowledge, the product or service is proprietary in nature and can be obtained only from a limited number of vendors or contractors, and that no equivalent products or services are available, the notice inviting formal bids or request for proposals may be sent exclusively to such vendor(s) or contractor(s). E. Contents of Remaining Bid and Contract Documents. The contents and form of the remaining bid and contract documents shall be approved by the director of the appropriate department, as well as the City Attorney. F. City's Authority. The City may reject any or all bids or proposals received, and may waive any minor irregularities in each bid or proposal received. G. No Bids Received. If no bids are received, the Authorized Contracting Party may award the contract by any alternative procedure. 3.01.090 Informal bidding procedure for non-public projects. A. Uses of Non-Public Project Informal Bidding Procedure. This informal bidding procedure shall be used whenever informal bidding is allowed for a purchase which does not involve a public project. B. Distribution of Notice Inviting Informal Bids or Request for Proposals. A Notice inviting informal bids or request for proposals, as appropriate, shall be provided. The notice inviting informal bids or requests for proposals shall be provided to at least three vendors or contractors, and the City shall endeavor to receive informal bids or proposals from at least three vendors or contractors. A notice inviting bids shall be used whenever the project or purchase must be awarded to the lowest responsible and responsive bidder. A request for proposals may be used whenever the project or purchase is not required to be awarded to the lowest responsible and responsive bidder. C. Contents of Notice Inviting Informal Bids or Request for Proposals. At a minimum, the notice inviting informal bids or request for proposals shall: 1. Describe the project or purchase in general terms; 2. State how to obtain more detailed information about the project or purchase; 3. State the date, time and place for the submission of bids or proposals; and 4. Include any other information required by state or local law, as determined by the City Attorney. Bids for purchases of more than $60,000 shall be sealed bids. D. Proprietary Projects or Products. If the director of the appropriate department certifies that, to the best of his or her knowledge, the product or service is proprietary in nature and can be obtained only from a limited number of vendors or contractors, and that no equivalent products or services are available, the notice inviting informal bids or request for proposals may be sent exclusively to such vendor(s) or contractor(s). Page 71 of 350 E. Contents of Remaining Bid and Contract Documents. The contents and form of the remaining bid and contract documents shall be approved by the director of the appropriate department, as well as the City Attorney. F. City's Authority. The City may reject any or all bids or proposals received, and may waive any Minor irregularities in each bid or proposal received. G. No Bids or Proposals Received. If no bids or proposals are received, the Authorized Contracting Party may award the contract by any alternative purchasing procedure. 3.01.100 Exceptions to competitive bidding on public projects. In addition to the situations described in Section 3.01.030, competitive bidding, either formal or informal, is not required for public projects in the situations provided for in this section. Under such conditions, the alternative procedure may be used. A. Emergencies. In situations determined by the City Manager to constitute an emergency for repair or replacement of a public project pursuant to Public Contract Code Section 22035 and Public Contract Code Section 22050, the City Council hereby delegates to the City Manager the power to declare a public emergency and take any directly related and immediate action required by the emergency, up to a total of $200,000, pursuant to California Public Contract Code Section 22035 and California Public Contract Code Section 22050. Emergency expenditures of more than $200,000 shall first be approved by the City Council. Work may be performed without the benefit of competitive bidding, either formal or informal, only so long as necessary under those sections. For projects of more than $60,000, a report on the emergency and work performed shall be provided at the next regular meeting of the City Council, and then at every meeting thereafter required by California Public Contract Code Section 22050. At such meetings, the City Council shall determine, by a four-fifths vote, that there is a need to continue the action without the benefit of informal or formal competitive bidding in accordance with California Public Contract Code Section 22035 and California Public Contract Code Section 22050. The City Council shall terminate the emergency action at the earliest possible date that conditions warrant, so that the remainder of the emergency action may be completed pursuant to a formal bidding procedure or other applicable procedure. For projects of $200,000 or less, the City Manager shall determine, on his or her own as the action continues, whether there is a need to continue the action without the benefit of the applicable bidding procedure. The City Manager shall terminate the emergency action at the earliest possible date that conditions warrant, so that the remainder of the emergency action may be completed pursuant to the applicable bidding procedure. B. No Competitive Market. When the City Council determines, in accordance with applicable law, that a competitive market does not exist and that no competitive advantage will be gained by the public bidding process. C. No Bids Received. When no bids are received pursuant to either the public project informal bidding procedure or the public project formal bidding procedure the Purchasing Officer may proceed by the alternative procedure. Page 72 of 350 D. Otherwise Authorized. When otherwise authorized by this chapter or applicable law including, but not limited to Public Contract Code Section 22160 et seq. concerning design build. 3.01.110 Exceptions to competitive bidding on non-public projects. In addition to the situations described in Sections 3.01.090 through 3.01.100, competitive bidding, either formal or informal, is not required for non-public projects in the situations provided for in this section. Under such conditions, any alternative procedure, including no bidding, may be used with the City Manager's approval. A. Emergencies. In situations determined by the Authorized Contracting Party to constitute an emergency, as defined in Section 3.01.010. B. No Competitive Market. When the City Council determines, in accordance with applicable law, that a competitive market does not exist and that no competitive advantage will be gained by the public bidding process. C. Competitive Bidding Already Completed. When the Authorized Contracting Party determines that a competitive bid procedure has been conducted by another public agency (e.g., through CMAS or GSA) and the price to the City is equal to or better than the price to that public agency. D. State Purchase. When the purchase is made on behalf of the City by the State Department of General Services. E. Purpose of Bidding is Otherwise Accomplished. When the City Manager determines that it is in the best interest of the City and its administrative operations to dispense with public bidding for non-public projects under this chapter. Prior City Council concurrence with the City Manager's determination shall be required for non-public project purchases over $200,000. F. No Bids Received. When no bids are received non-public project formal or informal bidding procedures. G. Expenses. The reimbursement or payment of travel expenses and other employee expenses. H. Insurance. The payment of any insurance premiums or claims, including employee medical payments. I. Real Property. The purchase or lease of real property with City Council approval. J. Banking. Banking services. K. Otherwise Authorized. When otherwise authorized by this chapter or applicable law. 3.01.120 City Manager authorization to execute contracts. Pursuant to the California Government Code, the Mayor must execute all contracts on behalf of the City, unless another City officer or employee is authorized to do so. The City Manager and his or her designees, as explicitly set forth in this chapter and the administrative policies implementing this chapter, are hereby authorized to execute contracts on behalf of the City. Page 73 of 350 Staff Report TO: City Council FROM: Robert Vestal, Assistant Public Works Director DATE April 18, 2023 SUBJECT: Bond Exoneration for Survey Monuments for Tract Map No. 31462-8 Description Bond Exoneration for survey monuments associated with Tract Map No. 31462-8. Background and Analysis: The City requires all developers to provide security for public improvements consisting of, but not limited to, sewer, street, storm drain, utility, and survey monuments per City of Beaumont Municipal Code 16.56.010. Survey monuments do not require a maintenance period and are generally not publicly maintained. D.R. Horton (Tract Map No. 31462-8) The principal, Western Pacific Housing, Inc., dba D.R. Horton is requesting that the monument bonds listed in Table No. 1 be exonerated. City staff has verified that th e survey monuments were installed per the approved Tract Map. Table No. 1 – Summary of Monument Bonds to be Exonerated. Project Bond Number PW Number Principal Tract Map No. 31462-8 0206492 PW2020- 0525 Western Pacific Housing, Inc. dba D.R. Horton Fiscal Impact: The cost of preparing the staff report is estimated to be $350. There are no maintenance cost associated with survey monuments. Recommended Action: Authorize staff to issue a bond exoneration letter for monument bonds for Tract Map No. 31462-8, bond number 0206492. Page 74 of 350 Attachments: A. PW2020-0525 - TR 31462-8 Monument Bond 0206492 Exoneration Packet Page 75 of 350 Page 76 of 350 Page 77 of 350 Page 78 of 350 Page 79 of 350 Page 80 of 350 Page 81 of 350 Page 82 of 350 Page 83 of 350 Page 84 of 350 Page 85 of 350 Page 86 of 350 Page 87 of 350 Page 88 of 350 Page 89 of 350 Page 90 of 350 Page 91 of 350 Page 92 of 350 Page 93 of 350 Page 94 of 350 Page 95 of 350 Page 96 of 350 Page 97 of 350 Page 98 of 350 Page 99 of 350 Page 100 of 350 Page 101 of 350 Page 102 of 350 Page 103 of 350 Page 104 of 350 Page 105 of 350 Page 106 of 350 Page 107 of 350 Page 108 of 350 Page 109 of 350 Page 110 of 350 Page 111 of 350 Staff Report TO: City Council FROM: Thaxton Van Belle, General Manager of Utilities DATE April 18, 2023 SUBJECT: Second Amendment of an Agreement to Extend the Contract for Professional Services with Burrtec Waste Industries, Inc. to Provide Sludge Hauling Services for the Wastewater Treatment Plant Description City staff is requesting approval of the Second Amendment to extend the contract for Sludge Hauling Services with Burrtec Waste Industries. Background and Analysis: The City issued a request for proposals (RFP) on January 28, 2019, to interested firms qualified to provide sludge hauling services for the WWTP. Burrtec Waste Industries, Inc. was selected to provide sludge hauling services for the WWTP for a three -year contract with the option to extend for two additional one-year periods, paid at the rate of 56.60 per ton of sludge which adjusts annually, each July 1, by a flat 3% escalator. This contract was executed on May 1, 2019 (Attachment A). In March 2020, both parties entered into a letter agreement, whereby Burrtec agreed to suspend the automatic 3% escalator in costs under the agreement until January 31, 2021. This letter agreement delayed the implementation of the escalator due to the first wave of Covid and the unknowns both parties faced. In February 2022, the First Amendment was approved with an increase of 3% from $60.08/ton to $61.88/ton beginning July 1, 2022, through April 30, 2023 (Attachment B). Burrtec Waste Industries provided a “Request for Extension Letter” (Attachment C), to extend the term of the Agreement and agreeing that the escalator shall remain the same. Burrtec has performed well, and staff is recommending this extension. Fiscal Impact: The fiscal impact for Sludge Hauling Services for the WWTP is an increase of 3% ($61.88/Ton to $63.74/Ton) beginning May 1, 2023, from account 700 -4050-7068-0000. Page 112 of 350 This contract is budgeted for in the current fiscal year and can absorb the percentage increase and will be budgeted for accordingly in the next fiscal year. The cost to prepare this report is estimated at $1,200. Recommended Action: Approve the Second Amendment of an Agreement to extend the existing contract for Professional Services with Burrtec Waste Industries, Inc., to Provide Sludge Hauling Services for the Wastewater Treatment Plant through April 30, 2024. Attachments: A. Original Agreement for Professional Services by Independent Contractor. B. First Amendment Agreement for Extension of Professional Services. C. Burrtec Request for Extension Letter. D. Second Amendment Agreement for Extension of Professional Services . Page 113 of 350 Page 114 of 350 Page 115 of 350 Page 116 of 350 Page 117 of 350 Page 118 of 350 Page 119 of 350 Page 120 of 350 Page 121 of 350 Page 122 of 350 Page 123 of 350 Page 124 of 350 Page 125 of 350 Page 126 of 350 Page 127 of 350 Burrtec Landfill Division Contractor’s License #791805 9400 Cherry Avenue, Building C ● Fontana, California 92335 ● 909-743-6319 ● Fax 909-714-1776 Ms. Sunshine Sanchez March 29, 2023 Management Analyst City of Beaumont 550 E. 6th Street Beaumont, CA 92223 Re: BioSolids Management Dear Ms. Sanchez: As a follow up to our conversation, Burrtec Waste Industries, Inc., is pleased to provide this letter confirming our desire to extend the Agreement for Professional Services, to provide Non- Hazardous Sludge Hauling Services, dated May 1st, 2019 for the second of the two potential one-year extension periods. As discussed, we agree to extending the existing Terms of the Agreement as follows: • The Effective Date of the original Agreement shall remain May 1, 2019. • The termination date of the second extension period shall be April 30, 2024. • All other components of the Agreement including those outlined in Paragraph 2 - Services to be Performed, and Paragraph 4 – Compensation, shall remain the same. If our terms for extension are agreeable to you, please provide written notice of the City’s intent to exercise its option to extend the term of the contract as provided for in Paragraph 1 of the Agreement for Professional Services, dated May 1st, 2019. We continue to appreciate the opportunity to serve the City of Beaumont. Please call if you have any questions. Sincerely, David S Brischke David S Brischke, P.E. Regional General Manager Page 128 of 350 SECOND AMENDMENT TO AGREEMENT FOR INDEPENDENT CONTRACTOR THIS SECOND AMENDMENT TO AGREEMENT OF SERVICES BY INDEPENDENT CONTRACTOR (“Amendment”) is made and effective as of the 1st day of May 2023 by and between the CITY OF BEAUMONT (“CITY”), a general law city, and Burrtec Waste Industries, Inc., a California Corporation (“CONTRACTOR”) in consideration of the mutual promises and purpose contained herein, the parties agree as follow: RECITALS This Amendment is made with respect to the following facts and purpose that the parties agree are true and correct: A. On May 1, 2019, the CITY and CONTRACTOR entered into that certain agreement entitled “Agreement for Professional Services by Independent Contractor” (“Agreement”) for non-hazardous sludge hauling services. B. In June 2020, the parties entered into a letter agreement, whereby Contractor agreed to suspend the automatic three percent (3%) escalator in costs under the agreement until January 31,2021. C. Contractor had provided a Letter of Extension dated December 2, 2021, to extend the term of the Agreement and to include Services to be performed and Compensation to remain the same. D. On May 1, 2022, the City and Contractor entered into the “First Amendment to Agreement for Professional Services by Independent Contractor”. E. Contractor provided a “Request for Extension Letter” to extend the term of agreement with the agreeance of the automatic 3% cost escalator. AMENDMENT Section 1. Term of Agreement In accordance with Section 1 of the Agreement, the parties agree to extend the term of the Agreement by one (1) year. Notwithstanding anything in this Agreement to the contrary, this Agreement shall automatically terminate April 30, 2024, unless earlier terminated by the parties in accordance with the Agreement or extended by the parties with the approval of the City Council of the City. Section 2. The recitals to this Amendment are deemed incorporated herein by this reference. All other terms of the Agreement not expressly amended by this Amendment shall remain in full force and effect. In the event of a conflict between the Agreement and this Amendment, this Amendment shall control. [Signatures on following page] Page 129 of 350 SIGNATURE PAGE TO CITY OF BEAUMONT SECOND AMENDMENT CITY: CITY OF BEAUMONT By: ________________________________ Julio Martinez, Mayor CONTRACTOR: BURRTEC WASTE INDUSTRIES, INC., a CALIFORNIA CORPORATION By: ______________________________ Print Name: _______________________ Title: _____________________________ ATTEST: By: ______________________________ Nicole Wheelwright, Deputy City Clerk APPROVED AS TO FORM: By: ___________________________ John O. Pinkney, City Attorney Page 130 of 350 Staff Report TO: City Council FROM: Jennifer Ustation, Finance Director DATE April 18, 2023 SUBJECT: FY2022-2023 3rd Quarter Cash and Investment Report Description Receive and file FY2022-2023 3rd Quarter Cash and Investment Report. Background and Analysis: In accordance with Government Code Section 53646(8)(1) and per the City’s Investment Policy, the City Treasurer through the Finance Department shall submit to the Finance Committee a quarterly report that will then be taken to the City Council. Staff has prepared the investment reports and certification as of quarter ending March 31, 2023. A summary of bank activity by each month in the quarter is provided below. Bank Name Beginning Bank Balance January 1, 2023 Deposits Payments Ending Bank Balance January 31, 2023 Wells Fargo Checking 12,909.00 30,578,253.53 30,576,768.53 14,394.00 Wells Fargo - Sweep 13,003,745.63 23,624,965.94 3,044,941.46 33,583,770.11 Bank of Hemet - Payroll 1,240,262.64 2,500,000.00 1,740,427.82 1,999,834.82 Bank of Hemet - Gas Tax 4,173,614.73 337,969.09 - 4,511,583.82 Bank of Hemet - Evidence and Seizure Fund 344,163.39 30.17 - 344,193.56 Bank of Hemet - Workers Comp 37,450.48 - - 37,450.48 Bank of Hemet - Construction 8,473,914.85 742.92 - 8,474,657.77 Grand Total 27,286,060.72 57,041,961.65 35,362,137.81 48,965,884.56 Page 131 of 350 Bank Name Beginning Bank Balance February 1, 2023 Deposits Payments Ending Bank Balance February 28, 2023 Wells Fargo Checking 14,394.00 19,987,649.09 19,954,061.09 47,982.00 Wells Fargo - Sweep 33,583,770.11 8,931,303.82 9,927,232.69 32,587,841.24 Bank of Hemet - Payroll 1,999,834.82 - 1,450,550.75 549,284.07 Bank of Hemet - Gas Tax 4,511,583.82 100,494.74 4,612,078.56 Bank of Hemet - Evidence and Seizure Fund 344,193.56 26.40 - 344,219.96 Bank of Hemet - Workers Comp 37,450.48 - - 37,450.48 Bank of Hemet - Construction 8,474,657.77 650.11 - 8,475,307.88 Grand Total 48,965,884.56 29,020,124.16 31,331,844.53 46,654,164.19 Bank Name Beginning Bank Balance March 1, 2023 Deposits Payments Ending Bank Balance March 31, 2023 Wells Fargo Checking 47,982.00 12,434,348.85 12,370,654.85 111,676.00 Wells Fargo - Sweep 32,587,841.24 5,992,094.37 4,192,722.96 34,387,212.65 Bank of Hemet - Payroll 549,284.07 2,500,000.00 1,428,418.19 1,620,865.88 Bank of Hemet - Gas Tax 4,612,078.56 266,739.11 4,878,817.67 Bank of Hemet - Evidence and Seizure Fund 344,219.96 29.24 344,249.20 Bank of Hemet - Workers Comp 37,450.48 37,450.48 - Bank of Hemet - Construction 8,475,307.88 719.82 8,476,027.70 Grand Total 46,654,164.19 21,193,931.39 18,029,246.48 49,818,849.10 Page 132 of 350 The significant transactions during the quarter were as follows:  LAIF interest recorded on 1/12/2023 in the amount of $253 ,262.21, in comparison to prior year 2nd quarter payment was $42,983.68.  Net income received for the quarter on the portfolio managed by Public Trust is $145,461.65.  Interest received for the quarter on the Wells Fargo Sweep account is $290,060.94.  Bank of Hemet CD matured, received funds and deposited them into pooled cash.  Closed Bank of Hemet Workers Comp account. It was no longer needed since the City is working with Sedgewick who invoices for any claim costs associated with workers compensation claims. The March PARS report at the time of preparing this report was not yet available. CITIBANK ACCOUNTS #January 2023 February 2023 March 2023 Wells Fargo GENERAL 52455 14,394.00$ 47,982.00$ 111,676.00$ Sweep 33,583,770.11$ 32,587,841.24$ 34,387,212.65$ BANK OF HEMET PAYROLL 50301 1,999,834.82$ 549,284.07$ 1,620,865.88$ GAS TAX 21901 4,511,583.82$ 4,612,078.56$ 4,878,817.67$ EVIDENCE AND SEIZURE FUND 20042 344,193.56$ 344,219.96$ 344,249.20$ WORKERS COMP 37,450.48$ 37,450.48$ -$ CONSTRUCTION 20048 8,474,657.77$ 8,475,307.88$ 8,476,027.70$ 15,367,720.45$ 14,018,340.95$ 15,319,960.45$ US BANK INVESTMENT PORTFOLIO 10770 45,266,948.53$ 45,343,509.58$ 45,306,879.74$ LIQUIDITY FUND 13574 35,443,262.13$ 35,560,700.74$ 35,673,649.42$ 80,710,210.66$ 80,904,210.32$ 80,980,529.16$ LAIF 3-056 47,861,014.02$ 47,861,014.02$ 47,861,014.02$ PARS 2,457,629.30$ 2,397,994.88$ BANK BALANCES 3rd QTR FY 22-23 Page 133 of 350 Fiscal Impact: There is no fiscal impact with this report as it is informational only. The estimated cost to prepare this report is $720. Recommended Action: Receive and file report. Attachments: A. Pooled Cash Investments Holding Report as of March 31, 2023 B. Pooled Cash Report as of March 31, 2023 C. Investment Certification for Quarter Ending March 31, 2023 D. Wilmington Trust Security Listings as of March 31, 2023 E. Wilmington Trust Maturity Dates F. Public Trust Advisors Aggregate Portfolio Report Page 134 of 350 DESCRIPTION OF SECURITYCOUPON RATEMATURITY DATE*INVEST RATINGPURCH DATE COST VALUE MARKET VALUEEstimated Current YieldDeposit AccountsWells Fargo Checking (Pooled Cash) N/A N/A NR N/A 111,676.00 111,676.00 Wells Fargo Sweep Account N/A N/A NR N/A 34,387,212.65 34,387,212.65 4.65Bank of Hemet ‐ Payroll N/A N/A NR N/A 1,620,865.88 1,620,865.88 Bank of Hemet ‐ Gas Tax 0.1 N/A NR N/A 4,878,817.67 4,878,817.67 Bank of Hemet ‐ Evidence and Seizure Fund 0.1 N/A NR N/A 344,249.20 344,249.20 Bank of Heemt ‐ Workers Comp 0.1 N/A NR N/A‐ ‐ Bank of Hemet ‐ Construction 0.1 N/A NR N/A 8,476,027.70 8,476,027.70 49,818,849.10 Certificates of DepositBank of Hemet 0.75 3/27/2023 NR 3/27/2019‐ ‐ Local Agency Investment Fund (LAIF)N/A Varies NR Varies 47,861,014.02 47,861,014.02 2.624Cash & EquivalentsN/A N/A NR N/A 16,237,971.42 16,237,971.42 Fixed Income SecuritiesVaries Varies Varies Varies 12,438,138.00 12,439,919.21 Cash & EquivalentsN/A N/A NR N/A 35,748,879.05 35,748,879.05 4.4Fixed Income SecuritiesVaries Varies Varies Varies 45,231,650.11 44,616,515.95 2.74Cash & Equivalents2,500,000.00 Cash and Investment Held by Third Party Trustee (PARS Pension 115 Trust)CITY OF BEAUMONTPOOLED INVESTMENT PORTFOLIO HOLDINGSMarch 31, 2023Cash and Investment Held by Third Party Trustee (Wilmington Trust)Cash and Investment Held by Third Party Trustee (US Bank)Page 135 of 350 Pooled Cash ReportFor the Period Ending 3/31/2023Fund (Claim on Cash) Account Name Beginning Balance Current Activity Current Balance 100 General Fund 43,137,857.02 13,361,725.39 58,827,780.75 120 Self Insurance 2,154,138.97 122,228.59 2,276,367.56 200 Highway Users Tax (GAS) (1,361,698.50) 281,274.10 (1,080,424.40) 201 SB1 (1,140,785.03) ‐ (1,140,785.03) 202 Measure A 1,672,944.96 886,991.73 2,559,936.69 205 Motor Vehicle Subvention (AB2766) 343,994.88 (85,693.89) 258,300.99 210 Public, Education, Govt (PEG) 23,142.16 10,957.86 34,100.02 215 Community Development/Grants (CDBG) 3,461,595.34 (4,059,244.76) (597,649.42) 220 Citizen Option Public Safety (COPS) 452,898.86 (8,069.17) 444,829.69 225 Asset Seizures ‐ State 53,808.85 (38,074.32) 15,734.53 230 Asset Seizures ‐ Federal‐ ‐ ‐ 240 Other Special Revenue Fund 375,880.29 47,631.25 423,511.54 250 Community Facitlities District (CFD)‐Admin 1,503,574.94 (981,798.61) 521,776.33 255 Community Facilities District (CFD)‐Maint 617,546.73 456,630.98 1,074,177.71 260 Community Facilities District (CFD)‐Public Safety 178,912.11 229,715.58 408,627.69 500 General Capital Projects 7,804,646.66 (3,701,440.41) 4,103,206.25 510 Community Facilities District 13,016,221.01 (26,504.52) 12,989,716.49 550 Other Mitigation 13,420.73 126.49 13,547.22 552 Basic Services Mitigation 1,448,516.99 201,739.89 1,650,256.88 554 General Plan Mitigation 102,458.95 110,789.94 213,248.89 555 Recreational Facilities Mitigation 2,091,405.45 206,149.79 2,297,555.24 556 Traffic Signal Mitigation 1,712,567.50 86,673.13 1,799,240.63 558 Railroad Crossing Mitigation 2,684,879.09 166,025.27 2,850,904.36 559 Police Facilities Mitigation 1,388,980.70 297,154.93 1,686,135.63 Page 136 of 350 560 Fire Station Mitigation 5,269,321.36 378,850.04 5,648,171.40 562 Road and Bridge Mitigation 13,833,524.87 447,822.49 14,281,347.36 564 Recycled Water Mitigation 4,524,809.40 (62,793.28) 4,462,016.12 566 Emergency Preparedness Mitigation (97,266.00) 687,254.46 589,988.46 567 Community Park Mitigation 1,891,663.93 539,818.34 2,431,482.27 568 Regional Park Mitigation 1,945,796.94 10,623.40 1,956,420.34 569 Neighborhood Parks Mitigation 2,443,206.67 661,778.59 3,104,985.26 570 Pass Thru DIF Fund 6,325,880.15 1,819,953.85 8,145,834.00 600 Internal Service Fund 6,937,761.33 (362,455.10) 6,575,306.23 700 Wastewater 7,256,480.69 1,153,290.29 8,409,770.98 705 Wastewater Mitigation 6,727,391.87 1,681,626.84 8,409,018.71 710 Wastewater Capital Projects (339,330.57) (4,182,992.37) (4,522,322.94) 750 Transit 1,230,834.04 (721,774.71) 509,059.33 755 Transit GASB 373,030.97 ‐ 373,030.97 760 Transit Capital Projects (365,393.39) (67,292.40) (432,685.79) 840 City of Beaumont CFD 20,899,792.46 (7,827,771.21) 13,072,021.25 850 Beaumont Finance Authority‐ 23,617.21 23,617.21 855 Beaumont Public Improv Authority 0.01 ‐ 0.01 860 Evidence 32,250.59 (7,583.10) 24,667.49 160,626,663.98 4,065,160.92 164,691,824.90 Total Claim on CashCash In BankPooled Cash 5,232,350.32 (5,120,674.32) 111,676.00 Sweep‐ 34,387,212.65 34,387,212.65 Investments with Trustee 79,524,222.22 1,456,306.94 80,980,529.16 LAIF 74,763,001.48 (26,901,987.46) 47,861,014.02 Total Cash in the Bank 159,519,574.02 3,820,857.81 163,340,431.83 Due to Other Funds999 Due to Other Funds 6,339,440.28 (4,876,371.21) 1,463,069.07 Total Due to Other Funds 6,339,440.28 (4,876,371.21) 1,463,069.07 Page 137 of 350 Cash in Bank 159,519,574.02 163,340,431.83 Claim on Cash 160,626,663.98 164,691,824.90 Difference (1,107,089.96) (1,351,393.07) Pooled Cash 5,232,350.32 111,676.00 Due to Other Funds 6,339,440.28 1,463,069.07 (1,107,089.96) (1,351,393.07) Total Difference (0.00) (0.00) Page 138 of 350 Page 139 of 350 Holdings SummaryFor 613 AccountsAccount Level Detail - Separate Principal and IncomeAs of Date 03/31/2023Comparison Date 03/31/2023Account Portfolio Type/Currency(Local) Security Type Asset Class/IndustryMarketValueMV (%)AccruedIncomeUnknownAccruedIncome?MV w/AccruedIncomeUnknownMV with Acr Inc?Market ValueComparison DateMV (%)Comparison DateCash & Equivalents Taxable 16,237,971.42 21,035.4955,939.82 0.00 16,293,911.24 0.00 16,237,971.42 21,035.49Fixed Income U.S. Tax-Exempt Fixed Income 12,438,138.00 864.51 1,781.21 0.00 12,439,919.21 0.00 12,438,138.00 864.51131715-005 Principal Portfolio - USD Other Insurance 1.00 100.00 0.00 + 1.00 + 1.00 100.00+ Unknown^ IncompleteRun Date 4/5/2023 6:36:44 PMPage 1 of 1Page 140 of 350 City of Beaumont Maturity Dates (all issues) 121031-000 Beaumont CFD93-1 2013A Financing Authority Authority 9/1/2023 121032-000 Beaumont CFD93-1 2013A IA19C CFD 9/1/2023 **Issue pays in full on 9/1/2023** 121035-000 Beaumont CFD93-1 2013A Financing Authority Authority 9/1/2023 121037-000 Beaumont CFD93-1 2013A IA17A CFD 9/1/2023 **Issue pays in full on 9/1/2023** 121041-000 Beaumont CFD93-1 2015A Financing Authority Authority 9/1/2045 121043-000 Beaumont CFD93-1 2015A IA7A1 CFD 9/1/2045 121046-000 Beaumont CFD93-1 2015B Financing Authority Authority 9/1/2035 121048-000 Beaumont CFD93-1 2015B IA19A CFD 9/1/2035 121049-000 Beaumont CFD93-1 2015C Financing Authority Authority 9/1/2034 121050-000 Beaumont CFD93-1 2015C IA18 CFD 9/1/2034 121051-000 Beaumont CFD93-1 2015D Financing Authority Authority 9/1/2034 121052-000 Beaumont CFD93-1 2015D IA16 CFD 9/1/2034 123240-000 Beaumont 93-1 2017A IA6A1 Authority 9/1/2035 123431-000 Beaumont 93-1 2017A IA8 Authority 9/1/2032 123239-000 Beaumont 93-1 2017A IA8A Authority 9/1/2035 123433-000 Beaumont 93-1 2017A IA8B Authority 9/1/2037 120990-009 Beaumont 93-1 2017A IA8C Authority 9/1/2038 Page 141 of 350 123223-000 Beaumont 93-1 2017A IA8D Authority 9/1/2039 123436-000 Beaumont 93-1 2017A 1A14 Authority 9/1/2032 123456-000 Beaumont 93-1 2017A IA14A Authority 9/1/1933 123221-000 Beaumont 93-1 2017A IA14B Authority 9/1/1937 121032-013 Beaumont 93-1 2017A IA19C Authority 9/1/1936 121021-034 Beaumont 93-1 2018A IA7B Authority 9/1/1939 132553-000 Beaumont 93-1 2018A IA7D Authority 9/1/1948 121009-017 Beaumont 93-1 2018A IA8C Authority 9/1/1948 123223-010 Beaumont 93-1 2018A IA8D Authority 9/1/1948 132571-000 Beaumont 93-1 2018A IA8E Authority 9/1/1948 129848-000 Beaumont 93-1 2018A IA17C Authority 9/1/1948 131715-000 Beaumont Pub Imp WW Rev Bds 2018 WasteWater 9/1/1949 136802-000 Beaumont BPIA LRBS Series 2019 Authority 9/1/1932 136797-000 Beaumont CFD 93-1 2019 IA3 CFD 9/1/2032 Page 142 of 350 136798-000 Beaumont CFD 93-1 2019 IA9 CFD 9/1/2032 136799-000 Beaumont CFD 93-1 2019 IA10A CFD 9/1/2032 136800-000 Beaumont CFD 93-1 2019 IA11 CFD 9/1/2032 136801-000 Beaumont CFD 93-1 2019 IA12 CFD 9/1/2032 134436-000 Beaumont 2016-1 (Fariway Cyn) IA 19C 2019 Authority 9/1/2049 136806-000 Beaumont CFD 2016-2 2019 (Sundance) Authority 9/1/2049 138228-000 Beaumont CFD 2016-4 2019 Authority 9/1/2049 141969-002 Beaumont CFD 93-1 2020 IA8F Authority 9/1/2050 143124-000 Beaumont CFD 2019-1 2020 Authority 9/1/2050 142529-000 Beaumont CFD93-1 2020 Financing Authority 9/1/2042 121009-018 Beaumont CFD 93-1 2020 IA8C 9/1/2042 142528-000 Beaumont CFD 93-1 2020 IA17B 9/1/2042 149426-000 Beaumont BPIA LRBS Series 2021 9/1/2039 121021-100 Beaumont CFD 93-1 2021 IA7B 9/1/2039 149424-000 Beaumont CFD 93-1 2021 IA7C 9/1/2039 149422-000 Beaumont CFD 93-1 2021 IA17A 9/1/2034 149421-000 Beaumont CFD 93-1 2021 IA19C 9/1/2036 149425-000 Beaumont CFD 93-1 2021 IA20 9/1/2035 Page 143 of 350 Board PackagePTA-City of Beaumont Aggregate (303582)Month End (M3 Y2023)03/01/2023 - 03/31/2023Dated: 04/04/2023Locked DownPage 144 of 350 Risk Summary (1) (PTA-City of Beaumont Aggregate (303582))1Performance Overview (PTA-City of Beaumont Aggregate (303582))5Index Comparison (PTA-City of Beaumont Aggregate (303582))8GAAP Financials (PTA-City of Beaumont Aggregate (303582))11Current Holdings (PTA-City of Beaumont Aggregate (303582))12Realized Gain/Loss (PTA-City of Beaumont Aggregate (303582))13Income Detail (PTA-City of Beaumont Aggregate (303582))14Issuer Concentration (> $550K) (PTA-City of Beaumont Aggregate (303582))15Historical Trends (PTA-City of Beaumont Aggregate (303582))16Credit Events (PTA-City of Beaumont Aggregate (303582))17Table of ContentsDated: 04/04/2023Page 145 of 350 Cash and Fixed Income SummaryRisk MetricValueCash128,970.82MMFund35,748,879.05Fixed Income44,907,189.73Duration0.980Convexity0.023WAL1.038Years to Final Maturity1.036Years to Effective Maturity1.036Yield4.321Book Yield3.629Avg Credit RatingAAA/Aaa/AAABalance SheetBook Value + Accrued81,552,361.12Net Unrealized Gain/Loss-767,321.52Market Value + Accrued80,785,039.60Issuer ConcentrationIssuer Concentration% of Base MarketValue + AccruedOther0.390%United States42.366%U.S. Bancorp44.252%Toyota Motor Corporation1.202%PACCAR Inc1.943%Federal Home Loan Banks3.330%Farm Credit System1.647%Chevron Corporation1.251%Caterpillar Inc.1.228%Apple Inc.1.167%Amazon.com, Inc.1.224%---100.000%Footnotes: 1,2Asset ClassMarket SectorSecurity TypeRisk Summary (1)PTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20231Page 146 of 350 Credit Duration Heat MapRating0 - 11 - 22 - 33 - 44 - 55 - 77 - 1010 - 1515 - 30AAA50.500%24.564%17.858%0.000%0.000%0.000%0.000%0.000%0.000%AA0.000%2.475%0.230%0.000%0.000%0.000%0.000%0.000%0.000%A0.000%2.430%1.943%0.000%0.000%0.000%0.000%0.000%0.000%BBB0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%BB0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%B0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%CCC0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%CC0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%C0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%NA0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%0.000%Time To MaturityCredit RatingDurationRisk Summary (1)PTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20232Page 147 of 350 MMF Asset AllocationIndustry SectorIndustry GroupIndustry SubgroupRisk Summary (1)PTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20233Page 148 of 350 1: * Grouped by: Issuer Concentration. 2: * Groups Sorted by: % of Base Market Value + Accrued.Risk Summary (1)PTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20234Page 149 of 350 SummaryBase ReturnsBeta DistributionPerformance OverviewPTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20235Page 150 of 350 Compliance OverviewStatusCompliantAs of03/31/2023Equity SummaryEquity MetricValueEquity0.00Beta---R Squared---Trailing P/E---Dividend Yield---Portfolio SummaryAsset ClassBase Market Value + AccruedCash128,970.82Money Market Funds35,748,879.05Fixed Income44,907,189.73Total80,785,039.60Footnote: 1Reconciliation StatusCustody Reconciliation StatusReconciledCustody Last Reconciled For04/03/2023Trading System Last Reconciled For03/28/2023Cash and Fixed Income SummaryRisk MetricValueCash128,970.82MMFund35,748,879.05Fixed Income44,907,189.73Duration0.980Convexity0.023WAL1.038Years to Final Maturity1.036Years to Effective Maturity1.036Yield4.321Book Yield3.629Avg Credit RatingAAA/Aaa/AAACompliance StatusCompliantAccountPolicy NameTotal RulesCompliant RulesViolating RulesPerformance OverviewPTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20236Page 151 of 350 Index: NO BENCHMARK REQUIRED. 1: * Grouped by: Asset Class.Performance OverviewPTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20237Page 152 of 350 Index Comparison SummaryIndex Comparison Market SectorIndex Comparison DurationIndex Comparison Credit RatingIndex ComparisonPTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20238Page 153 of 350 Index Comparison SummaryRisk MetricPortfolioIndexDifferenceDuration0.980------Yield4.321------Years to Effective Maturity1.036------Years to Final Maturity1.036------Average Credit RatingAAA------Footnote: 1Index Comparison Market SectorMarket SectorPortfolioIndexDifferenceGovernment42.366%------Agency4.978%------Industrial8.245%------Cash44.412%------Footnote: 2Index Comparison DurationDurationPortfolioIndexDifference< 00.000%------0 - 150.500%------1 - 229.470%------2 - 320.031%------3 - 40.000%------4 - 50.000%------5 - 70.000%------7 - 100.000%------10 - 150.000%------15 - 300.000%------30 +0.000%------No Duration0.000%------Footnote: 3Index Comparison Credit RatingCredit RatingPortfolioIndexDifferenceAAA92.921%------AA2.705%------A4.374%------BBB0.000%------Non-Invest0.000%------Not Rated0.000%------Footnote: 4Index ComparisonPTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/20239Page 154 of 350 Index: NO BENCHMARK REQUIRED. 1: * Grouped by: Risk Metric. 2: * Grouped by: Market Sector. 3: * Grouped by: Duration. 4: * Grouped by: Credit Rating.Index ComparisonPTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/202310Page 155 of 350 Balance SheetPTA-City of Beaumont AggregateCity of Beaumont Liquid FundCity of Beaumont, CAAs of:02/28/202303/31/202302/28/202303/31/202302/28/202303/31/2023Book Value81,154,471.8781,240,968.0235,673,871.6735,801,994.2145,480,600.2045,438,973.81Accrued Balance252,925.60311,393.100.000.00252,925.60311,393.10Book Value + Accrued81,407,397.4881,552,361.1235,673,871.6735,801,994.2145,733,525.8145,750,366.91Net Unrealized Carrying Value Gain-1,354,921.45-767,321.520.000.00-1,354,921.45-767,321.52Carrying Value and Accrued80,052,476.0380,785,039.6035,673,871.6735,801,994.2144,378,604.3644,983,045.39Income StatementPTA-City of Beaumont AggregateCity of Beaumont Liquid FundCity of Beaumont, CABegin DateEnd Date03/01/202303/31/2023Begin DateEnd Date03/01/202303/31/2023Begin DateEnd Date03/01/202303/31/2023Net Amortization/Accretion Income15,599.430.0015,599.43Interest Income223,119.29128,344.7994,774.50Dividend Income0.000.000.00Foreign Tax Withheld Expense0.000.000.00Misc Income0.000.000.00Net Allowance Expense0.000.000.00Income Subtotal223,119.29128,344.7994,774.50Net Realized Gain/Loss-93,257.070.00-93,257.07Net Holding Gain/Loss0.000.000.00Impairment Loss0.000.000.00Net Gain/Loss-93,257.070.00-93,257.07Expense0.000.000.00Net Income145,461.65128,344.7917,116.86Transfers In/Out-498.01-222.25-275.76Change in Unrealized Gain/Loss587,599.930.00587,599.93Statement of Cash FlowsPTA-City of Beaumont AggregateCity of Beaumont Liquid FundCity of Beaumont, CABegin DateEnd Date03/01/202303/31/2023Begin DateEnd Date03/01/202303/31/2023Begin DateEnd Date03/01/202303/31/2023Net Income145,461.65128,344.7917,116.86Amortization/Accretion on MS-15,599.430.00-15,599.43Change in Accrued on MS-56,673.470.00-56,673.47Net Gain/Loss on MS93,257.070.0093,257.07Change in Unrealized G/L on CE0.000.000.00Subtotal20,984.170.0020,984.17Purchase of MS-5,970,531.250.00-5,970,531.25Purchased Accrued of MS-23,745.770.00-23,745.77Sales of MS5,833,825.200.005,833,825.20Sold Accrued of MS21,951.750.0021,951.75Maturities of MS0.000.000.00Net Purchases/Sales-138,500.070.00-138,500.07Transfers of Cash & CE-498.01-222.25-275.76Total Change in Cash & CE27,447.74128,122.54-100,674.80Beginning Cash & CE35,850,402.1335,673,871.67176,530.46Ending Cash & CE35,877,849.8735,801,994.2175,855.66GAAP FinancialsPTA-City of Beaumont Aggregate (303582)03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/202311Page 156 of 350 * Grouped by: Security Type. * Groups Sorted by: Security Type. * Weighted by: Base Market Value + Accrued. * Holdings Displayed by: Position.Security TypeBase Original UnitsBase Current UnitsFinal MaturityBase Original CostBase Book ValueBase Net TotalUnrealized Gain/LossBase Interest/Dividend DueBase AccruedBalanceMarketPriceBase Market ValueBase Market Value +AccruedAGCY BOND4,050,000.004,050,000.0004/10/20244,037,431.504,041,703.78-58,387.080.0037,767.1998.35663,983,316.704,021,083.88CASH128,970.82128,970.8203/31/2023128,970.82128,970.820.000.000.001.0000128,970.82128,970.82CORP6,790,000.006,790,000.0004/03/20256,678,659.206,709,831.83-113,477.010.0064,449.8397.18136,596,354.826,660,804.66MMFUND35,748,879.0535,748,879.0503/31/202335,748,879.0535,748,879.050.00128,970.820.001.000035,748,879.0535,748,879.05US GOV34,780,000.0034,780,000.0003/07/202534,515,559.4034,611,582.54-595,457.430.00209,176.0897.847534,016,125.1134,225,301.19---81,497,849.8781,497,849.8704/13/202481,109,499.9781,240,968.02-767,321.52128,970.82311,393.1054.806580,473,646.5080,785,039.60Current HoldingsPTA-City of Beaumont Aggregate (303582)Base Currency: USD As of 03/31/2023Return to Table of ContentsDated: 04/04/202312Page 157 of 350 * Grouped by: Security Type. * Groups Sorted by: Security Type. * Weighted by: Ending Market Value + Accrued. * Holdings Displayed by: Lot.Security TypeBS ClassMarket SectorEnding Base Current UnitsBase Disposed Book ValueBase Total Impairment LossBase Net Total Gain/LossEnding Market Value + AccruedAGCY BOND---Agency4,050,000.000.000.000.004,021,083.88CASHRCVCash128,970.820.000.000.00128,970.82CORPLTIndustrial6,790,000.000.000.000.006,660,804.66MMFUNDCECash35,748,879.05-138,998.080.000.0035,748,879.05US GOV---Government34,780,000.00-5,927,082.270.00-93,257.0734,225,301.19---------81,497,849.87-6,066,080.350.00-93,257.0780,785,039.60Realized Gain/LossPTA-City of Beaumont Aggregate (303582)Base Currency: USD 03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/202313Page 158 of 350 * Grouped by: Security Type. * Groups Sorted by: Security Type. * Weighted by: Ending Base Market Value + Accrued. * Holdings Displayed by: Lot.Security TypeBS ClassEnding Base Current UnitsBase Accretion IncomeBase Misc IncomeBase ExpenseBase Interest/Dividend IncomeBase Amortization ExpenseBase Net IncomeAGCY BOND---4,050,000.00737.620.000.0010,265.63-258.0910,745.15CASHRCV128,970.820.000.000.000.000.000.00CORPLT6,790,000.003,719.850.000.0016,411.67-244.7619,886.76MMFUNDCE35,748,879.050.000.000.00128,970.820.00128,970.82US GOV---34,780,000.0012,844.260.000.0067,471.18-1,199.45-14,141.09------81,497,849.8717,301.730.000.00223,119.29-1,702.30145,461.65Income DetailPTA-City of Beaumont Aggregate (303582)Base Currency: USD 03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/202314Page 159 of 350 * Grouped by: Issuer Concentration. * Groups Sorted by: Base Market Value + Accrued. * Filtered By: Base Market Value + Accrued > 550,000.00. * Weighted by: Base Market Value + Accrued.Issuer ConcentrationSecurity TypeEnding Base Current UnitsEnding EffectiveMaturityFinal MaturityBase Net MarketUnrealized Gain/LossBase Net FX UnrealizedSecurity Gain/LossBase Market Value + Accrued% of Base MarketValue + AccruedU.S. BancorpMMFUND35,673,649.4203/31/202303/31/20230.000.0035,673,649.4245.554%United StatesUS GOV32,580,000.0003/19/202503/19/2025-488,882.850.0032,140,181.5141.042%Federal Home Loan BanksAGCY BOND2,700,000.0003/11/202403/11/2024-37,268.140.002,690,378.073.436%PACCAR IncCORP1,600,000.0008/11/202508/11/2025-37,099.330.001,569,895.062.005%Farm Credit SystemAGCY BOND1,350,000.0006/10/202406/10/2024-21,118.940.001,330,705.811.699%Chevron CorporationCORP1,000,000.0011/15/202411/15/2024-8,221.720.001,010,475.101.290%Caterpillar Inc.CORP1,000,000.0005/13/202505/13/2025-14,561.740.00992,104.411.267%Amazon.com, Inc.CORP1,000,000.0004/13/202504/13/2025-13,794.160.00988,883.241.263%Toyota Motor CorporationCORP1,000,000.0010/07/202410/07/2024-17,583.510.00971,308.971.240%Apple Inc.CORP1,000,000.0005/11/202505/11/2025-17,357.480.00942,381.841.203%------78,903,649.4204/09/202404/09/2024-655,887.880.0078,309,963.44100.000%Issuer Concentration (> $550K)PTA-City of Beaumont Aggregate (303582)Base Currency: USD As of 03/31/2023Return to Table of ContentsDated: 04/04/202315Page 160 of 350 * Weighted by: Base Market Value + Accrued.YieldBase Market Value + AccruedPeriod BeginPeriod EndDurationComplex CreditRatingYears to Effective MaturityYears to Final Maturity4.66780,007,866.9503/01/202303/04/20230.878AAA0.9210.9214.53180,266,513.9503/05/202303/11/20230.869AAA0.9130.9134.17080,784,100.0803/12/202303/18/20230.866AAA0.9070.9074.23080,910,304.8303/19/202303/25/20230.856AAA0.8980.8984.32180,785,039.6003/26/202303/31/20230.980AAA1.0361.036Historical TrendsPTA-City of Beaumont Aggregate (303582)Base Currency: USD 03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/202316Page 161 of 350 * Grouped by: Event Type. * Groups Sorted by: Event Type. * Filtered By: Agency ¹ DBRS and Agency ¹ Moodys.AccountIdentifierDescriptionEffective DateAgencyOld ValueNew ValueEvent TypeCredit EventsPTA-City of Beaumont Aggregate (303582)Base Currency: USD 03/01/2023 - 03/31/2023Return to Table of ContentsDated: 04/04/202317Page 162 of 350 Additional Disclosure:This information is for the sole purposes of the client and is not intended to provide specific advice or recommendations. Please review the contents of this information carefully. Should you have any questions regarding theinformation presented, calculation methodology, investment portfolio, security detail, or any other facet of this information, please feel free to contact us.Public Trust Advisors, LLC (Public Trust) statements and reports are intended to detail our investment advisory activity as well as the activity of certain client accounts managed by Public Trust. The custodian bank maintainsthe control of assets and executes and settles all investment transactions. The custodian statement is the official record of security and cash holdings transactions. Public Trust recognizes that clients may use these reports tofacilitate record keeping; therefore, it is recommended that the client reconcile this information with their custodian bank statement. Many custodians use a settlement date basis that may result in the need to reconcile due to atiming difference. The underlying market value, amortized cost, and accrued interest may differ between the custodian and this statement or report. This can be attributed to differences in calculation methodologies and pricingsources used.Public Trust does not have the authority to withdraw funds from or deposit funds to the custodian. Our clients retain responsibility for their internal accounting policies, implementing and enforcing internal controls, andgenerating ledger entries or otherwise recording transactions. The total market value represents prices obtained from various sources; it may be impacted by the frequency at which prices are reported, and such prices are notguaranteed. Prices received from pricing vendors are generally based on current market quotes but when such quotes are not available, the pricing vendors use a variety of techniques to estimate value. These estimates,particularly for fixed-income securities, may be based on certain minimum principal amounts (e.g. $1 million) and may not reflect all the factors that affect the value of the security including liquidity risk. The prices provided arenot firm bids or offers. Certain securities may reflect N/A or unavailable where the price for such security is generally not available from a pricing source. The market value of a security, including those priced at par value, maydiffer from its purchase price and may not closely reflect the value at which the security may be sold or purchased based on various market factors. The securities in this investment portfolio, including shares of mutual funds,are not guaranteed or otherwise protected by Public Trust, the FDIC (except for certain non-negotiable certificates of deposit), or any government agency unless specifically stated otherwise.Clients may be permitted to establish one or more unmanaged accounts for the purposes of client reporting. Clients may also be permitted to provide externally managed assets for the purposes of client reporting. Public Trustdefines unmanaged accounts or assets as one where the investment direction remains the sole responsibility of the client rather than the Investment Manager. Unmanaged accounts or external assets do not receive ongoingsupervision and monitoring services. The Investment Manager does not make any investment recommendations and may not charge a fee for reporting on these accounts or assets. The primary purpose for this service is toinclude unmanaged accounts or assets owned by the client in the performance reports provided by the Investment Manager. The Investment Manager assumes no liability for the underlying performance of any unmanagedaccounts or assets, and it is the client’s sole responsibility for the accuracy or correctness of any such performance.Beginning and ending balances are based on market value plus accrued interest on a trade date basis. Statements and reports made available to the end user either from Public Trust or through the online reporting platformmay present information and portfolio analytics using various optional methods including, but not limited to, historical cost, amortized cost, and market value. All information is assumed to be correct, but the accuracy has notbeen confirmed and therefore is not guaranteed to be correct. Information is obtained from third party sources that may or may not be verified. The data in this report is unaudited and is only applicable for the date denoted onthe report. Market values may change day-to-day based on numerous circumstances such as trading volume, news released about the underlying issuer, issuer performance, etc. Underlying market values may be priced vianumerous aspects as certain securities are short term in nature and not readily traded. Performance results are shown net of all fees and expenses and reflect the reinvestment of dividends and other earnings.Many factors affect performance including changes in market conditions and interest rates and in response to other economic, political, or financial developments. Investment involves risk including the possible loss ofprincipal. No assurance can be given that the performance objectives of a given strategy will be achieved. Past performance is no guarantee of future results. Any financial and/or investment decision may incur losses.The investment advisor providing these services is Public Trust Advisors, LLC, an investment adviser registered with the U.S. Securities and Exchange Commission (SEC) under the Investment Advisers Act of 1940, asamended. Registration with the SEC does not imply a certain level of skill or training. Public Trust is required to maintain a written disclosure brochure of our background and business experience. If you would like to receive acopy of our current disclosure brochure, Privacy Policy, or Code of Ethics, or have any questions regarding your account please contact us.Public Trust Advisors717 17th St. Suite 1850Denver, CO 80202Page 163 of 350 Staff Report TO: City Council FROM: Jennifer Ustation, Finance Director DATE April 18, 2023 SUBJECT: FY2022-2023 3rd Quarter Budget Update and Financial Status Report Description Receive a report on the status of the City’s budget and financial status as of March 31, 2023. Background and Analysis: The Fiscal Year 2022-23 3rd quarter financials provide an update to the City’s financial position relative to the FY 2022-23 budget. Budget Control and Monitoring The City of Beaumont Budget Policy provides that the Finance Department will maintain a system of tools for departments to manage their budgets and for financial monitoring and control of the City’s budget during the fiscal year. This system will provide t he departments and City Council with information on revenue, expenditures, and budget performance at both the department and fund level. General Fund Summary Most of the General Fund revenue budget is from taxes. Property tax is usually recorded in December and May. Sales tax is received in monthly advanced estimated payments and then a quarterly actual clean-up payment. Other taxes include Motor Vehicle In-Lieu, which is received in February and June, as well as Utility Users tax which is received monthly. General Fund Revenues As of September 30, 2022, the city has collected 68% of the FY 2023 budgeted revenues. Miscellaneous revenue actuals are higher than budget due to the reversal of prior fiscal year GASB 31 entry. GASB 31 requires an agency to mark its investment portfolio to market which in FY2022 resulted in a unrealized loss of $1,456,063. The entry was reversed in the current fiscal year to put the portfolio to book balance. Other Page 164 of 350 financing sources actuals are higher than budget due to a sale of land. Below is a table for General Fund Revenues as of March 31, 2023. General Fund Departments The table below provides an overview of the general fund department budgets through March 31, 2023. ORIGINAL BUDGET FY2022/23 CURRENT BUDGET FY2022/23 ACTUAL FY2022/23 ESTIMATED ACTUALS % Taxes 41,542,397.00 41,588,762.00 27,178,149.33 45,244,421.00 65% Licenses 410,687.00 410,687.00 154,837.01 346,385.00 38% Permits 4,574,641.00 4,574,641.00 3,099,009.93 3,948,252.00 68% Franchise Fees 3,248,286.00 3,248,286.00 2,313,310.98 3,144,804.00 71% Charges for Services 1,273,780.00 1,273,780.00 711,814.36 1,249,178.00 56% Fines and Forfeitures 131,545.00 131,545.00 97,170.48 129,560.00 74% Cost Recovery 498,587.00 498,587.00 165,017.01 365,987.00 33% Miscellaneous 296,068.00 296,068.00 2,905,554.08 1,364,453.00 981% Other Financing Sources 5,000.00 5,000.00 83,671.10 83,664.00 1673% Transfers 8,687,711.00 8,687,711.00 4,304,291.42 8,687,711.00 50% TOTAL REVENUES 60,668,702.00 60,715,067.00 41,012,825.70 64,564,415.00 68% GENERAL FUND Page 165 of 350 The City Council approved a budget amendment to appropriate surplus fund balance to many needed capital projects. This adjustment shows in the non -departmental category. These funds will be moved throughout the year as needed or by year -end. Other departments that have been highlighted include Economic Development, Risk and HR, and Fire. Economic Development has a program budget line of $500,000 to create a Downtown Incentive Program. This program is in progress and funds are expected to be expended soon for this program. Risk and HR is higher than average because the City’s insurance payment is paid in July and is 73% of the total budget. The Fire Department budget is below average due to there has only been one quarter of the fire services contract paid to date. The table below provides for expenditures by type. Personnel costs make up 62.65% of the actuals to date. Operating costs are 33.24% of actuals followed by capital at 3.61%. Currently, there are no categories over budget, however, estimated actua ls are putting DEPARTMENT FY 2023 ORIGINAL BUDGET FY 2023 BUDGET FY 2023 ACTUAL % Non-Departmental 7,932,671.00 32,622,888.00 97,635.50 0.3% City Council 51,131.00 51,131.00 30,311.69 59.3% City Clerk 343,242.00 416,441.00 156,372.53 37.5% Administration 1,435,070.00 1,446,309.00 704,289.82 48.7% Finance 1,520,471.00 1,554,873.00 983,291.69 63.2% IT 1,606,874.00 1,889,009.00 1,152,454.91 61.0% Economic Development 1,322,868.00 1,340,426.00 212,569.84 15.9% Risk and HR 2,626,205.00 2,972,085.00 2,667,575.69 89.8% Legal 1,500,000.00 1,500,000.00 751,597.00 50.1% Community Development 783,600.00 965,896.00 456,487.91 47.3% Community Services 1,131,722.00 1,209,284.00 670,601.21 55.5% Animal Control 335,394.00 339,704.00 244,952.89 72.1% Community Enhancement 337,866.00 341,726.00 196,774.46 57.6% OES 162,200.00 162,200.00 80,000.00 49.3% Police 13,982,847.00 14,381,454.00 10,360,610.57 72.0% K-9 9,600.00 9,600.00 4,008.76 41.8% Police Support 2,538,188.00 2,569,829.00 1,513,998.82 58.9% Fire 4,670,961.00 5,223,487.00 1,178,954.85 22.6% Building and Safety 1,542,266.00 1,548,571.00 860,843.62 55.6% Public Works 1,797,804.00 1,687,630.00 839,870.88 49.8% Street Maintenance 2,330,115.00 2,370,777.00 1,471,303.40 62.1% Building Maintenance 1,148,673.00 1,148,673.00 568,315.86 49.5% Parks and Grounds 4,182,002.00 4,699,769.00 2,569,022.98 54.7% TOTAL EXPENDITURES 53,291,770.00 80,451,762.00 27,771,844.88 34.5% General Fund Expenditures Page 166 of 350 the utilities, fleet costs and other (insurance and equipment leasing and rentals) at risk of exceeding budget. Overall, estimated actuals have revenues coming in $3.8M above budget and expenditures $1.9M below budget for an overall estimated surplus of $5.7M. Wastewater Fund Summary Revenues Wastewater revenues are collected in arrears. The July billing is accrued back to prior FY and the first billing for FY2023 was collected in September. Billing is completed bi- monthly. As of March 31, 2023, the Wastewater Fund has collected 67% of its budgeted revenues. The Cost Recovery Line has collected more than budgeted currently due to a Manhole Repair Agreement with Perricone Juice invoiced and collected. The Miscellaneous revenues category has collected more than budgeted from interest earned on the Wastewater Fund. EXPENSE TYPE FY 2023 ORIGINAL BUDGET FY 2023 CURRENT BUDGET FY 2023 ACTUAL ESTIMATED ACTUALS % Personnel Salaries and Wages 17,938,820.00 18,370,805.00 12,139,805.94 17,914,416.00 66% Benefits 7,376,316.00 7,386,940.00 4,984,841.42 6,722,011.00 67% Other 476,692.00 481,423.00 275,489.84 460,896.32 57% TOTAL PERSONNEL 25,791,828.00 26,239,168.00 17,400,137.20 25,097,323.33 66% Operating Utilities 1,787,000.00 1,787,000.00 1,352,878.68 2,029,318.00 76% Administration 890,968.00 910,968.00 585,538.05 904,656.00 64% Fleet Costs 664,280.00 664,280.00 502,821.15 829,655.00 76% Program Costs 904,870.00 1,464,870.00 500,351.15 1,414,870.00 34% Repairs & Maintenance 1,062,630.00 1,192,130.00 704,451.72 1,086,232.00 59% Supplies 1,217,830.00 1,462,509.00 533,352.89 1,211,137.00 36% Special Services 517,075.00 517,075.00 198,740.71 464,987.00 38% Contractual Services 8,959,125.00 9,270,880.00 2,585,552.12 8,590,700.00 28% Other 1,967,700.00 2,302,648.00 2,267,431.02 2,323,018.00 98% TOTAL OPERATING 17,971,478.00 19,572,360.00 9,231,117.49 18,854,572.99 47% Capital Equipment 249,952.00 331,057.00 257,575.46 331,057.00 78% Furniture - - 4,080.12 4,081.00 0% Vehicle 884,854.00 1,225,302.00 585,967.96 1,225,302.00 48% Structure 310,987.00 310,987.00 155,493.50 310,987.00 50% TOTAL CAPITAL 1,445,793.00 1,867,346.00 1,003,117.04 1,871,427.00 54% Contngency CONTINGENCY 150,000.00 150,000.00 39,837.65 150,000.00 27% Transfers TRANSFERS 7,932,671.00 32,622,888.00 97,635.50 32,622,888.00 0% Total Expenditures 53,291,770.00 80,451,762.00 27,771,844.88 78,596,211.32 35% Page 167 of 350 Expenses Wastewater expenses as of March 31, 2023, total $7,886,839.12 which is 57% of the FY2023 budget. Personnel costs make up 22.17% of the actuals to date, operating costs make up 28.72%, capital costs make up 3.22%, Contingency makes up less than 1% of the budget, and Transfers Out for overhead and debt service make up the remaining 45.7%. The debt service payment on the 2018 Wastewater Revenue Bonds is due 9/1 and 3/1 of each fiscal year. The 9/1 payment consists of principal and interest and the 3/1 payment is just interest. Both debt service payments have been paid. Currently, no categories are over budget, however, estimated actuals have both utilities and fleet costs potentially going over budget by year-end. Overall, estimated actuals have revenues coming in $241K above budget and expenses coming in $361K below budget for an overall estimated surplus of $602K. FY 2023 ORIGINAL BUDGET FY 2023 CURRENT BUDGET ACTUAL FY2022/23 ESTIMATED ACTUALS % Permits - - - 0% Fines and Forfeitures 3,000.00 3,000.00 - 3,000.00 0% Cost Recovery 3,500.00 3,500.00 12,055.00 3,500.00 344% Miscellaneous 30,000.00 30,000.00 63,387.61 126,775.00 211% Proprietary Revenues 12,821,501.00 12,821,501.00 8,641,658.01 12,962,487.00 67% Other Financing Sources - 3,272.00 3,272.00 0% Transfers - 190,787.00 - 190,787.00 0% TOTAL REVENUES 12,858,001.00 13,048,788.00 8,720,372.62 13,289,821.00 67% WASTEWATER REVENUES Page 168 of 350 Fiscal Impact: There is no fiscal impact with this report as it is information only. The estimated cost to prepare this report is $540. Recommended Action: Receive and file report. Attachments: A. Governmental Funds Activity B. Proprietary Funds Activity EXPENSE TYPE FY 2023 ORIGINAL BUDGET FY 2023 CURRENT BUDGET FY 2023 ACTUAL ESTIMATED ACTUALS % Personnel Salaries and Wages 1,831,289.00 1,863,975.00 1,290,105.39 1,857,418.00 69% Benefits 674,094.00 675,465.00 433,644.70 590,364.00 64% Other 40,032.00 40,442.00 24,991.30 40,997.00 62% TOTAL PERSONNEL 2,545,415.00 2,579,882.00 1,748,741.39 2,488,779.01 68% Operating Utilities 928,228.00 928,228.00 742,900.61 1,147,781.00 80% Administration 227,805.00 227,805.00 174,909.23 227,805.00 77% Fleet Costs 44,420.00 44,420.00 48,658.61 78,267.00 110% Repairs & Maintenance 116,200.00 116,200.00 40,131.20 123,508.00 35% Supplies 585,700.00 585,700.00 413,156.80 578,419.00 71% Contractual Services 1,397,360.00 1,397,360.00 733,325.93 1,226,656.00 52% Other 755,872.00 755,872.00 111,988.02 403,308.02 15% TOTAL OPERATING 4,055,585.00 4,055,585.00 2,265,070.40 3,785,744.00 56% Capital Equipment 167,112.00 167,112.00 63,291.33 167,112.00 38% Vehicle 33,576.00 190,911.00 190,911.30 190,911.00 100% Other - - 0% TOTAL CAPITAL 200,688.00 358,023.00 254,202.63 358,023.00 71% ContIngency CONTINGENCY 200,000.00 200,000.00 14,806.67 200,000.00 7% Transfers TRANSFERS 6,585,213.00 6,585,213.00 3,604,018.03 6,585,213.00 55% Total Expenses 13,586,901.00 13,778,703.00 7,886,839.12 13,417,759.00 57% Wastewater Expenses Page 169 of 350 Beginning Fund BalanceFY 2023 Budgeted RevenuesFYTD 2023 Actual Revenues%FY 2023 Budgeted ExpendituresFYTD 2023 Actual Expenditures%T/D Ending Fund Balance100 GENERAL FUND 43,636,298.50 60,715,067.00 41,012,825.70 68% 80,451,762.00 27,771,844.88 35% 56,877,279.32 120 SELF INSURANCE 2,154,151.97 525,000.00 547,957.09 0% 41,056.00 42,572.50 0% 2,659,536.56 200 GAS TAX 69,599.00 1,459,493.00 956,331.73 66% 1,459,493.00 729,771.50 50% 296,159.23 201 SB1 1,117,898.24 1,168,504.00 698,406.54 60% 892,435.00 25.00 0% 1,816,279.78 202 MEASURE A 1,955,121.28 605,900.00 546,462.26 90% 604,800.00 ‐ 0% 2,501,583.54 205 AQMD 343,994.88 71,130.00 55,306.12 78% 201,145.00 141,000.01 70% 258,300.99 210 PEG 27,709.97 22,595.00 9,638.88 43% 12,000.00 3,245.83 27% 34,103.02 215 CDBG/GRANTS (903.49) 1,826,791.00 127,261.96 7% 2,056,791.00 403,647.22 20% (277,288.75) 220 COPS 452,898.86 150,751.00 110,856.47 74% 130,721.00 118,925.64 91% 444,829.69 225 ASSET SEIZURES (STATE) 295,024.16 2,956.00 336.46 11% 3,300.00 ‐ 0% 295,360.62 230 ASSET SEIZURES (FEDERAL) 6,036.38 ‐ 4.58 0%‐ ‐ 0% 6,040.96 240 OTHER FUNDS 320,424.80 78,776.00 76,360.54 97% 72,200.00 33,135.90 46% 363,649.44 250 CFD‐ADMIN 1,407,534.32 1,908,931.00 61,126.47 3% 1,908,931.00 1,072,958.08 56% 395,702.71 255 CFD‐MAINT SVCS 677,799.38 3,858,848.00 2,330,520.13 60% 4,358,848.00 1,929,424.00 44% 1,078,895.51 260 CFD‐PUBLIC SAFETY 188,842.16 911,768.00 596,029.43 65% 911,768.00 588,804.99 65% 196,066.60 500 GENERAL CAPITAL PROJECTS 8,345,916.85 48,258,364.00 1,728,197.16 4% 45,574,842.00 3,170,779.79 7% 6,903,334.22 510 CFD CAPITAL PROJECTS 13,016,221.01 ‐ 186,983.12 0% 1,450,000.00 213,487.64 0% 12,989,716.49 550 DIF 6,424.13 ‐ 126.49 0%‐ ‐ 0% 6,550.62 552 BASIC SERVICES DIF 1,347,348.14 325,677.00 135,211.41 42%‐ ‐ 0% 1,482,559.55 554 GENERAL PLAN DIF 102,458.95 27,183.00 110,789.94 408%‐ ‐ 0% 213,248.89 555 RECREATIONAL FACILITIES DIF 1,902,958.44 359,663.00 93,314.27 26%‐ ‐ 0% 1,996,272.71 556 TRAFFIC IMPACT DIF 1,622,130.40 163,895.00 45,543.89 28% 150,000.00 1,337.80 1% 1,666,336.49 558 RAILROAD CROSSING DIF 2,605,466.00 178,606.00 124,285.69 70% 1,683,522.00 3,896.90 0% 2,725,854.79 559 POLICE FACILITIES DIF 1,306,700.36 274,163.00 159,471.97 58% 1,450,000.00 (55,057.20) 0% 1,521,229.53 560 FIRE STATION DIF 5,083,305.95 325,677.00 283,159.16 87%‐ ‐ 0% 5,366,465.11 562 ROAD AND BRIDGE DIF 10,564,968.35 1,513,156.00 396,056.16 26% 6,250,000.00 334,875.11 0% 10,626,149.40 566 EMERGENCY PREPAREDNESS DIF (97,266.00) 346,593.00 687,254.46 198%‐ ‐ 0% 589,988.46 567 COMMUNITY PARK DIF 1,891,663.93 588,630.00 498,780.90 85%‐ ‐ 0% 2,390,444.83 568 REGIONAL PARK DIF 1,945,796.94 ‐ 20,354.22 0% 1,000,000.00 9,730.82 0% 1,956,420.34 569 NEIGHBORHOOD PARK DIF 2,443,206.67 712,342.00 612,116.35 86%‐ ‐ 0% 3,055,323.02 570 PASS THROUGH DIF‐ ‐ TOTALS 104,739,730.53 126,380,459.00 52,211,069.55 41% 150,663,614.00 36,514,406.41 24% 120,436,393.67 GOVERNMENTAL FUNDSPage 170 of 350 Beginning Fund BalanceFY 2023 Estimated RevenuesFYTD 2023 Actual Revenues%FY 2023 Budgeted ExpendituresFYTD 2023 Actual Expenditures%T/D Ending Fund Balance564 RECYCLED WATER DIF 4,230,411.43 361,067.00 575,906.05 160% 2,349,077.00 751,975.49 0% 4,054,341.99 600 INTERNAL SERVICE FUND 7,460,855.75 1,217,354.00 613,989.84 50% 2,270,679.00 961,851.89 42% 7,112,993.70 700 WASTEWATER 7,894,606.29 13,048,788.00 8,720,372.62 67% 14,778,703.00 7,886,839.12 53% 8,728,139.79 705 WASTEWATER DIF 5,216,190.14 2,718,679.00 943,894.79 35% 3,650,000.00 215,099.65 6% 5,944,985.28 710 WASTEWATER CAPITAL PRO128,491,042.59 13,034,290.00 (18,644,481.88) ‐143% 10,235,213.00 5,182,600.40 51% 104,663,960.31 750 TRANSIT 147.61 2,806,457.00 1,706,388.45 61% 2,806,457.00 1,845,553.26 66% (139,017.20) 760 TRANSIT CAPITAL PROJECTS2,728,822.07 2,290,000.00 370,876.76 16% 2,290,000.00 437,098.25 19% 2,662,600.58 TOTALS156,022,075.88 35,476,635.00 (5,713,053.37) ‐16% 38,380,129.00 17,281,018.06 45% 133,028,004.45 PROPRIETARY/ENTERPRISE FUNDSPage 171 of 350 Staff Report TO: City Council FROM: Kari Mendoza, Administrative Services Director DATE April 18, 2023 SUBJECT: Adopt the Resolution for the Authorization and Execution of the Certifications and Assurances and Authorized Agent forms for the Low Carbon Transit Operations Program (LCTOP) Description Low Carbon Transit Operations Program (LCTOP) for the following project: Discounted Fare Promotion, $323,000. Background and Analysis: The City of Beaumont Transit Services is eligible for Low Carbon Transit Operations Program (LCTOP) grant funds for FY 2022/2023 in the amount of $323,000 for the Discounted Fare Promotion. The purpose of LCTOP program is to reduce greenhouse gas emissions and improve mobility with a priority on serving disadvantaged communities. This Discounted Fare Promotion provides an incentive that promotes the use of public transportation and promotes transit connectivity. This project also benefits multiple disadvantaged communities within Beaumont Transit’s service area. The project will provide discounted fares to all passenger types systemwide. This includes local Fixed Routes, Commuter Links and Dial-a-Ride. It is projected that the project will last 3 years; or until funding is exhausted. To proceed with the project, the City must submit the following documents: 1. Resolution (Attachment A) 2. Certifications and Assurances (Attachment B) 3. Authorized Agent (Attachment C) Fiscal Impact: There is no fiscal impact on the general fund. City staff estimates the cost to prepare this staff report to be $200. Page 172 of 350 Recommended Action: Waive the full reading and adopt by title only “A Resolution of the City Council of the City of Beaumont for Authorization for the Execution of the Certifications and Assurances and Authorized Agent Forms for the Low Carbon Transit Operations Program (LCTOP) for the Following Project: Discounted Fare Promotion, $323,000”, Execute the Certifications and Assurances Form, and Execute the Authorized Agent Form. Attachments: A. Resolution B. Certifications and Assurances C. Authorized Agent Form Page 173 of 350 RESOLUTION NO. 2023- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BEAUMONT FOR AUTHORIZATION FOR THE EXECUTION OF THE CERTIFICATIONS AND ASSURANCES AND AUTHORIZED AGENT FORMS FOR THE LOW CARBON TRANSIT OPERATIONS PROGRAM (LCTOP) FOR THE FOLLOWING PROJECT: DISCOUNTED FARE PROMOTION, $323,000 WHEREAS, the City of Beaumont is an eligible project sponsor and may receive state funding from the Low Carbon Transit Operations Program (LCTOP) for transit projects; and WHEREAS, the statutes related to state-funded transit projects require a local or regional implementing agency to abide by various regulations; and WHEREAS, Senate Bill 862 (2014) named the Department of Transportation (Department) as the administrative agency for the LCTOP; and WHEREAS, the Department has developed guidelines for the purpose of administering and distributing LCTOP funds to eligible project sponsors (local agencies); and WHEREAS, the City of Beaumont wishes to delegate authorization to execute these documents and any amendments thereto to Elizabeth Gibbs, City Manager or her designee; and WHEREAS, the City of Beaumont wishes to implement the following LCTOP project(s) listed above, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Beaumont that the fund recipient agrees to comply with all conditions and requirements set forth in the Certification and Assurances and the Authorized Agent documents and applicable statutes, regulations and guidelines for all LCTOP funded transit projects. NOW THEREFORE, BE IT FURTHER RESOLVED that Elizabeth Gibbs, City Manager be authorized to execute all required documents of the LCTOP program and any Amendments thereto with the California Department of Transportation. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Beaumont that it hereby authorizes the submittal of the following project nomination(s) and allocation request(s) to the Department in FY2022-2023 LCTOP funds: Project Name: Discounted Fare Promotion Amount of LCTOP funds requested: $323,000 Short description of project: Discounted Fare Promotion for all passengers systemwide. Benefit to Priority Populations: Promotion provides incentives to disadvantaged communities and low- income communities, promotes the use of public transportation, and promotes transit connectivity. Contributing Sponsors: Riverside County Transportation Commission Page 174 of 350 MOVED, PASSED, AND ADOPTED this 18th day of April, 2023 by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ________________________________ Julio Martinez, Mayor ATTEST: ________________________________ Nicole Wheelwright, Deputy City Clerk Page 175 of 350 FY 2022-2023 LCTOP Certifications and Assurances Lead Agency: City of Beaumont Project Title: Discounted Fare Promotion Prepared by: Matthew Mendoza The California Department of Transportation (Caltrans) has adopted the following Certifications and Assurances for the Low Carbon Transit Operations Program (LCTOP). As a condition of the receipt of LCTOP funds, Lead Agency must comply with these terms and conditions. A. General 1. The Lead Agency agrees to abide by the current LCTOP Guidelines and applicable legal requirements. 2. The Lead Agency must submit to Caltrans a signed Authorized Agent form designating the representative who can submit documents on behalf of the project sponsor and a copy of the board resolution appointing the Authorized Agent. B. Project Administration 1. The Lead Agency certifies that required environmental documentation is complete before requesting an allocation of LCTOP funds. The Lead Agency assures that projects approved for LCTOP funding comply with Public Resources Code § 21100 and § 21150. 2. The Lead Agency certifies that a dedicated bank account for LCTOP funds only will be established within 30 days of receipt of LCTOP funds. 3. The Lead Agency certifies that when LCTOP funds are used for a transit capital project, that the project will be completed and remain in operation for its useful life. 4. The Lead Agency certifies that it has the legal, financial, and technical capacity to carry out the project, including the safety and security aspects of that project. 5. The Lead Agency certifies that they will notify Caltrans of pending litigation, dispute, or negative audit findings related to the project, before receiving an allocation of funds. 6. The Lead Agency must maintain satisfactory continuing control over the use of project equipment and facilities and will adequately maintain project equipment and facilities for the useful life of the project. 7. Any interest the Lead Agency earns on LCTOP funds must be used only on approved LCTOP projects. 8. The Lead Agency must notify Caltrans of any changes to the approved project with a Corrective Action Plan (CAP). Page 176 of 350 FY 2022-2023 LCTOP 9. Under extraordinary circumstances, a Lead Agency may terminate a project prior to completion. In the event the Lead Agency terminates a project prior to completion, the Lead Agency must (1) contact Caltrans in writing and follow-up with a phone call verifying receipt of such notice; (2) pursuant to verification, submit a final report indicating the reason for the termination and demonstrating the expended funds were used on the intended purpose; (3) submit a request to reassign the funds to a new project within 180 days of termination. C. Reporting 1. The Lead Agency must submit the following LCTOP reports: a. Annual Project Activity Reports October 27th each year. b. A Close Out Report within six months of project completion. c. The annual audit required under the Transportation Development Act (TDA), to verify receipt and appropriate expenditure of LCTOP funds. A copy of the audit report must be submitted to Caltrans within six months of the close of the year (December 31) each year in which LCTOP funds have been received or expended. d. Project Outcome Reporting as defined by CARB Funding Guidelines. e. Jobs Reporting as defined by CARB Funding Guidelines. 2. Other Reporting Requirements: CARB develops and revises Funding Guidelines that will include reporting requirements for all State agencies that receive appropriations from the Greenhouse Gas Reduction Fund. Caltrans and project sponsors will need to submit reporting information in accordance with CARB’s Funding Guidelines, including reporting on greenhouse gas reductions and benefits to disadvantaged communities. D. Cost Principles 1. The Lead Agency agrees to comply with Title 2 of the Code of Federal Regulations 225 (2 CFR 225), Cost Principles for State and Local Government, and 2 CFR, Part 200, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. 2. The Lead Agency agrees, and will assure that its contractors and subcontractors will be obligated to agree, that: a. Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allow ability of individual project cost items and b. Those parties shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. Every sub-recipient receiving LCTOP funds as a contractor or sub-contractor shall comply with Page 177 of 350 FY 2022-2023 LCTOP Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. 3. Any project cost for which the Lead Agency has received funds that are determined by subsequent audit to be unallowable under 2 CFR 225, 48 CFR, Chapter 1, Part 31 or 2 CFR, Part 200, are subject to repayment by the Lead Agency to the State of California (State). All projects must reduce greenhouse gas emissions, as required under Public Resources Code section 75230, and any project that fails to reduce greenhouse gases shall also have its project costs submit to repayment by the Lead Agency to the State. Should the Lead Agency fail to reimburse moneys due to the State within thirty (30) days of demand, or within such other period as may be agreed in writing between the Parties hereto, the State is authorized to intercept and withhold future payments due the Lead Agency from the State or any third-party source, including but not limited to, the State Treasurer and the State Controller. A. Record Retention 1. The Lead Agency agrees and will assure that its contractors and subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate incurred project costs and matching funds by line item for the project. The accounting system of the Lead Agency, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles (GAAP) and enable the determination of incurred costs at interim points of completion. All accounting records and other supporting papers of the Lead Agency, its contractors and subcontractors connected with LCTOP funding shall be maintained for a minimum of three (3) years after the “Project Closeout” report or final Phase 2 report is submitted (per ARB Funding Guidelines, Vol. 3, page 3.A-16), and shall be held open to inspection, copying, and audit by representatives of the State and the California State Auditor. Copies thereof will be furnished by the Lead Agency, its contractors, and subcontractors upon receipt of any request made by the State or its agents. In conducting an audit of the costs claimed, the State will rely to the maximum extent possible on any prior audit of the Lead Agency pursuant to the provisions of federal and State law. In the absence of such an audit, any acceptable audit work performed by the Lead Agency’s external and internal auditors may be relied upon and used by the State when planning and conducting additional audits. 2. For the purpose of determining compliance with Title 21, California Code of Regulations, Section 2500 et seq., when applicable, and other matters connected with the performance of the Lead Agency’s contracts with third parties pursuant to Government Code § 8546.7, the project sponsor, its contractors and subcontractors and the State shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times Page 178 of 350 FY 2022-2023 LCTOP during the entire project period and for three (3) years from the date of final payment. The State, the California State Auditor, or any duly authorized representative of the State, shall each have access to any books, records, and documents that are pertinent to a project for audits, examinations, excerpts, and transactions, and the Lead Agency shall furnish copies thereof if requested. 3. The Lead Agency, its contractors and subcontractors will permit access to all records of employment, employment advertisements, employment application forms, and other pertinent data and records by the State Fair Employment Practices and Housing Commission, or any other agency of the State of California designated by the State, for the purpose of any investigation to ascertain compliance with this document. F. Special Situations Caltrans may perform an audit and/or request detailed project information of the project sponsor’s LCTOP funded projects at Caltrans’ discretion at any time prior to the completion of the LCTOP. I certify all of these conditions will be met. Elizabeth Gibbs City Manager (Print Authorized Agent) (Title) (Signature) (Date) Page 179 of 350 FY 2022-2023 LCTOP Authorized Agent AS THE Mayor (Chief Executive Officer/Director/President/Secretary) OF THE City of Beaumont (Name of County/City/Transit Organization) I hereby authorize the following individual(s) to execute for and on behalf of the named Regional Entity/Transit Operator, any actions necessary for the purpose of obtaining Low Carbon Transit Operations Program (LCTOP) funds provided by the California Department of Transportation, Division of Rail and Mass Transportation. I understand that if there is a change in the authorized agent, the project sponsor must submit a new form. This form is required even when the authorized agent is the executive authority himself. I understand the Board must provide a resolution approving the Authorized Agent. The Board Resolution appointing the Authorized Agent is attached. Elizabeth Gibbs, City Manager OR (Name and Title of Authorized Agent) Kari Mendoza, Administrative Services Director OR (Name and Title of Authorized Agent) Jennifer Ustation, Finance Director OR (Name and Title of Authorized Agent) Julio Martinez Mayor (Print Name) (Title) (Signature) Approved this 18 day of April , 2023 Page 180 of 350 Staff Report TO: City Council FROM: Jeff Hart, Public Works Director DATE April 18, 2023 SUBJECT: Lease Agreement With 4th Street Industrial Park, LLC for Public Works and Waste Water Temporary Relocation Description Authorization of Lease Agreement between the City of Beaumont and 4th Street Industrial, LLC for the temporary relocation of Public Works and Waste Water staff. Background and Analysis: Public Works and Waste Water staff growth has created a need for additional space and accommodations. Currently, the Public Works Street’s Department utilizes existing space for equipment and material storage at City Hall as well as an undersized corporation yard located at the northeast corner of Magnolia Avenue and 7th Street. Recent growth of the Street’s Department is currently impacting City operations and has exceeded the capacity to accommodate current equipment and material storage needs. Similarly, the City’s Waste Water Department has limited capacity to house current, and projected staffing needs. Currently, the General Manager of Utilities, the Waste Water Supervisor, and collections staff share a singular office. In order to adequately accommodate the operational needs of the department, expansion is needed. Ultimately, the City plans to develop the recently acquired property located at the southeast corner of 4th Street and Veile Avenue. The development will include a corporation yard for both the Street’s Department and Community Services, as well as facilities for Transit and Fleet Services. The development will also include a new administration building which will provide office space for aforementioned departments. Ultimate development of this site is expected in approximately 3 years. In order to accommodate the current needs of the departments, staff is proposing to lease office and yard space from 4th Street Industrial Park, LLC located at 252 West 4th Street. The site obtains approximately 5,000 square feet of office space, 4,800 square feet of warehouse space, and 1.5 acres of yard/site space. Staff has prepared the proposed office and site layout schematics which are shown in Attachment A. Page 181 of 350 Additionally, the Police Department has exceeded the capacity of its current facility to adequately accommodate current staff. The FY 22/23 CIP allocated $750,000 to retrofit Building C, located at City Hall directly south of the current Transit parking area. Building C is antiquated and in need of significant restoration in order to make it habitable for use. Staff is proposing that the Police Department relocate to Building B (located in between Building C and City Hall) as it is similar in size, and has recently been retrofitted to allow for immediate use. Currently, Public Works staff utilizes this space and should the lease agreement be approved would relocate to 252 West 4th Street. Minimal modifications would be required to accommodate the Police Department which would allow the much needed expansion to happen within 2 months rather than one, to one and a half years required to retrofit Building C. The budgeted amount of $750,000 intended to be utilized is proposed to be reallocated to the future Police Department Headquarters project. Authorization of the proposed lease agreement will allow City staff to immediately address current space limitations until proposed permanent expansion projects are constructed. Fiscal Impact: The estimated costs to prepare this staff report is $250. The monthly fee associated with the proposed lease agreement is $11,500 per month with a proposed split of $9,857 being paid from the existing Public Works budget, and the remaining $1,643 being paid from the Waste Water budget. Monthly utilities and operational expenses are expected to be $9,750 per month with the General Fund paying an estimated total of $17,164 and Wastewater Fund paying an estimated total of $4,087. Maintenance costs are borne by the lessor. Recommended Action: Authorize the City Manager to execute a 3-year lease agreement with an optional 1 year extension, with 4th Street Industrial, LLC for the property located at 252 West 4th Street. Attachments: A. Proposed Site and Office Layout B. Draft Lease Agreement Page 182 of 350 Page 183 of 350 Page 184 of 350 Page 185 of 350 1.Basic Provisions ("Basic Provisions"). 1.1 ParƟes.This Lease ("Lease"),dated for reference purposes only April 5,2023 ,is made by and between 4th Street Industrial Park LLC ("Lessor")and City of Beaumont ("Lessee"),(collecƟvely the "ParƟes",or individually a "Party"). 1.2(a)Premises:That certain real property,including all improvements therein or to be provided by Lessor under the terms of this Lease,commonly known as (street address,unit/suite,city,state,zip):252 W 4th Street Unit "E"Beaumont CA 92223 ("Premises").The Premises are located in the County of Riverside ,and are generally described as (describe briefly the nature of the Premises and the "Project"): Offices/warehouse space,two story building .In addiƟon to Lessee's rights to use and occupy the Premises as hereinaŌer specified,Lessee shall have non-exclusive rights to any uƟlity raceways of the building containing the Premises ("Building")and to the Common Areas (as defined in Paragraph 2.7 below),but shall not have any rights to the roof,or exterior walls of the Building or to any other buildings in the Project.The Premises,the Building,the Common Areas,the land upon which they are located,along with all other buildings and improvements thereon,are herein collecƟvely referred to as the "Project." (See also Paragraph 2) 1.2(b)Parking:28 parking stalls and 1 handicap stall unreserved vehicle parking spaces.(See also Paragraph 2.6) 1.3 Term:5 years and 0 months ("Original Term")commencing May 15,2023 ("Commencement Date")and ending June 1,2028 ("ExpiraƟon Date").(See also Paragraph 3) 1.4 Early Possession:If the Premises are available Lessee may have non-exclusive possession of the Premises commencing May 1,2023 ("Early Possession Date").(See also Paragraphs 3.2 and 3.3) 1.5 Base Rent:$11,500.00 per month ("Base Rent"),payable on the 1st day of each month commencing May 2023 .(See also Paragraph 4) If this box is checked,there are provisions in this Lease for the Base Rent to be adjusted.See Paragraph Base rent is adjusted on annually with 3%increase starting June 1,2024.. 1.6 Lessee's Share of Common Area OperaƟng Expenses:N/A percent (%)("Lessee's Share").In the event that the size of the Premises and/or the Project are modified during the term of this Lease,Lessor shall recalculate Lessee's Share to reflect such modificaƟon. 1.7 Base Rent and Other Monies Paid Upon ExecuƟon: move in.May will be prorated if move in date is May 15,2023 to $5,750.00,last month $11,500.00,security $5,000.00,totaling $22,250.00 due May 15,2023 . 1.8 Agreed Use:8,500 sq/ft of building and warehouse space,used for business operations .(See also Paragraph 6) 1.9 Insuring Party.Lessor is the "Insuring Party".(See also Paragraph 8) 1.10 Real Estate Brokers.(See also Paragraphs 15 and 25) agency relaƟonships in this Lease with the following real estate brokers ("Broker(s)")and/or their agents ("Agent(s)"): Lessor's Brokerage Firm N/A License No.Is the broker of (check one):the Lessor;or both the Lessee and Lessor (dual agent). Lessor's Agent N/A License No.is (check one):the Lessor's Agent (salesperson or broker associate);or both the Lessee's Agent and the Lessor's Agent (dual agent). Lessee's Brokerage Firm N/A License No.Is the broker of (check one):the Lessee;or both the Lessee and Lessor (dual agent). Lessee's Agent N/A License No.is (check one):the Lessee's Agent (salesperson or broker associate);or both the Lessee's Agent and the Lessor's Agent (dual agent). separate wriƩen agreement (or if there is no such agreement,the sum of N/A or %of the total Base Rent)for the brokerage services rendered by the Brokers. 1.11 Guarantor.The obligaƟons of the Lessee under this Lease are to be guaranteed by ("Guarantor").(See also Paragraph 37) 1.12 AƩachments.AƩached hereto are the following,all of which consƟtute a part of this Lease: an Addendum consisƟng of Paragraphs see addendum through ; a site plan depicƟng the Premises; a site plan depicƟng the Project; a current set of the Rules and RegulaƟons for the Project; STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE -NET (a)Base Rent:$11,500.00 for the period June 1,2023 to June 1,2024 . (b)Common Area OperaƟng Expenses:The current esƟmate for the period is . (c)Security Deposit:$5,000.00 ("Security Deposit").(See also Paragraph 5) (d)Other:for . (e)Total Due Upon ExecuƟon of this Lease:First and last month plus security deposit due at time of (a)RepresentaƟon:Each Party acknowledges receiving a Disclosure Regarding Real Estate Agency RelaƟonship,confirms and consents to the following (b)Payment to Brokers.Upon execuƟon and delivery of this Lease by both ParƟes,Lessor shall pay to the Brokers the brokerage fee agreed to in a Page 186 of 350 a current set of the Rules and RegulaƟons adopted by the owners'associaƟon; a Work LeƩer; other (specify):Lessor is responsible for water,sewer,repairs &services on A/C units, and landscape.Lessee is responsible for elevator cost (if chosen to use),all utilities,trash and light bulbs replacements.. 2.Premises. 2.1 Leƫng.Lessor hereby leases to Lessee,and Lessee hereby leases from Lessor,the Premises,for the term,at the rental,and upon all of the terms, covenants and condiƟons set forth in this Lease.While the approximate square footage of the Premises may have been used in the markeƟng of the Premises for purposes of comparison,the Base Rent stated herein is NOT Ɵed to square footage and is not subject to adjustment should the actual size be determined to be different.NOTE:Lessee is advised to verify the actual size prior to execuƟng this Lease. 2.2 CondiƟon.Lessor shall deliver that porƟon of the Premises contained within the Building ("Unit")to Lessee broom clean and free of debris on the Commencement Date or the Early Possession Date,whichever first occurs ("Start Date"),and,so long as the required service contracts described in Paragraph 7.1(b) below are obtained by Lessee and in effect within thirty days following the Start Date,warrants that the exisƟng electrical,plumbing,fire sprinkler,lighƟng,heaƟng, venƟlaƟng and air condiƟoning systems ("HVAC"),loading doors,sump pumps,if any,and all other such elements in the Unit,other than those constructed by Lessee, shall be in good operaƟng condiƟon on said date,that the structural elements of the roof,bearing walls and foundaƟon of the Unit shall be free of material defects, and that the Unit does not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law.If a non-compliance with such warranty exists as of the Start Date,or if one of such systems or elements should malfuncƟon or fail within the appropriate warranty period,Lessor shall,as Lessor's sole obligaƟon with respect to such maƩer,except as otherwise provided in this Lease,promptly aŌer receipt of wriƩen noƟce from Lessee seƫng forth with specificity the nature and extent of such non-compliance,malfuncƟon or failure,recƟfy same at Lessor's expense.The warranty periods shall be as follows:(i)6 months as to the HVAC systems,and (ii)30 days as to the remaining systems and other elements of the Unit.If Lessee does not give Lessor the required noƟce within the appropriate warranty period,correcƟon of any such non-compliance,malfuncƟon or failure shall be the obligaƟon of Lessee at Lessee's sole cost and expense (except for the repairs to the fire sprinkler systems,roof,foundaƟons,and/or bearing walls -see Paragraph 7).Lessor also warrants,that unless otherwise specified in wriƟng,Lessor is unaware of (i)any recorded NoƟces of Default affecƟng the Premise;(ii)any delinquent amounts due under any loan secured by the Premises;and (iii)any bankruptcy proceeding affecƟng the Premises. 2.3 Compliance.Lessor warrants that to the best of its knowledge the improvements on the Premises comply with the building codes,applicable laws, covenants or restricƟons of record,regulaƟons,and ordinances ("Applicable Requirements")that were in effect at the Ɵme that each improvement,or porƟon thereof,was constructed.Said warranty does not apply to the use to which Lessee will put the Premises,modificaƟons which may be required by the Americans with DisabiliƟes Act or any similar laws as a result of Lessee's use (see Paragraph 49),or to any AlteraƟons or UƟlity InstallaƟons (as defined in Paragraph 7.3(a))made or to be made by Lessee.NOTE:Lessee is responsible for determining whether or not the Applicable Requirements,and especially the zoning are appropriate for Lessee's intended use,and acknowledges that past uses of the Premises may no longer be allowed.If the Premises do not comply with said warranty,Lessor shall, except as otherwise provided,promptly aŌer receipt of wriƩen noƟce from Lessee seƫng forth with specificity the nature and extent of such non-compliance,recƟfy the same at Lessor's expense.If Lessee does not give Lessor wriƩen noƟce of a non-compliance with this warranty within 6 months following the Start Date, correcƟon of that non-compliance shall be the obligaƟon of Lessee at Lessee's sole cost and expense.If the Applicable Requirements are hereaŌer changed so as to require during the term of this Lease the construcƟon of an addiƟon to or an alteraƟon of the Unit,Premises and/or Building,the remediaƟon of any Hazardous Substance,or the reinforcement or other physical modificaƟon of the Unit,Premises and/or Building ("Capital Expenditure"),Lessor and Lessee shall allocate the cost of such work as follows: (a)Subject to Paragraph 2.3(c)below,if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general,Lessee shall be fully responsible for the cost thereof,provided,however,that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months'Base Rent,Lessee may instead terminate this Lease unless Lessor noƟfies Lessee,in wriƟng, within 10 days aŌer receipt of Lessee's terminaƟon noƟce that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 6 months'Base Rent.If Lessee elects terminaƟon,Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor wriƩen noƟce specifying a terminaƟon date at least 90 days thereaŌer.Such terminaƟon date shall,however,in no event be earlier than the last day that Lessee could legally uƟlize the Premises without commencing such Capital Expenditure. (b)If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as,governmentally mandated seismic modificaƟons),then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay,each month during the remainder of the term of this Lease or any extension thereof,on the date that on which the Base Rent is due,an amount equal to 1/144th of the porƟon of such costs reasonably aƩributable to the Premises.Lessee shall pay Interest on the balance but may prepay its obligaƟon at any Ɵme.If,however,such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof,Lessor shall have the opƟon to terminate this Lease upon 90 days prior wriƩen noƟce to Lessee unless Lessee noƟfies Lessor,in wriƟng,within 10 days aŌer receipt of Lessor's terminaƟon noƟce that Lessee will pay for such Capital Expenditure.If Lessor does not elect to terminate,and fails to tender its share of any such Capital Expenditure,Lessee may advance such funds and deduct same,with Interest,from Rent unƟl Lessor's share of such costs have been fully paid.If Lessee is unable to finance Lessor's share,or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis,Lessee shall have the right to terminate this Lease upon 30 days wriƩen noƟce to Lessor. (c)Notwithstanding the above,the provisions concerning Capital Expenditures are intended to apply only to non-voluntary,unexpected,and new Applicable Requirements.If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use,change in intensity of use,or modificaƟon to the Premises then,and in that event,Lessee shall either:(i)immediately cease such changed use or intensity of use and/or take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure,or (ii)complete such Capital Expenditure at its own expense.Lessee shall not have any right to terminate this Lease. 2.4 Acknowledgements.Lessee acknowledges that:(a)it has been given an opportunity to inspect and measure the Premises;(b)it has been advised by Lessor and/or Brokers to saƟsfy itself with respect to the size and condiƟon of the Premises (including but not limited to the electrical,HVAC and fire sprinkler systems,security,environmental aspects,and compliance with Applicable Requirements and the Americans with DisabiliƟes Act),and their suitability for Lessee's intended use;(c)Lessee has made such invesƟgaƟon as it deems necessary with reference to such maƩers and assumes all responsibility therefor as the same relate to its occupancy of the Premises;(d)it is not relying on any representaƟon as to the size of the Premises made by Brokers or Lessor;(e)the square footage of the Premises was not material to Lessee's decision to lease the Premises and pay the Rent stated herein;and (f)neither Lessor,Lessor's agents,nor Brokers have made any oral or wriƩen representaƟons or warranƟes with respect to said maƩers other than as set forth in this Lease.In addiƟon,Lessor acknowledges that:(i)Brokers Page 187 of 350 have made no representaƟons,promises or warranƟes concerning Lessee's ability to honor the Lease or suitability to occupy the Premises and (ii)it is Lessor's sole responsibility to invesƟgate the financial capability and/or suitability of all proposed tenants. 2.5 Lessee as Prior Owner/Occupant.The warranƟes made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises.In such event,Lessee shall be responsible for any necessary correcƟve work. 2.6 Vehicle Parking.Lessee shall be enƟtled to use the number of Parking Spaces specified in Paragraph 1.2(b)on those porƟons of the Common Areas designated from Ɵme to Ɵme by Lessor for parking.Lessee shall not use more parking spaces than said number.Said parking spaces shall be used for parking by vehicles no larger than full-size passenger automobiles or pick-up trucks,herein called "PermiƩed Size Vehicles."Lessor may regulate the loading and unloading of vehicles by adopƟng Rules and RegulaƟons as provided in Paragraph 2.9.No vehicles other than PermiƩed Size Vehicles may be parked in the Common Area without the prior wriƩen permission of Lessor.In addiƟon: (a)Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee's employees,suppliers,shippers,customers, contractors or invitees to be loaded,unloaded,or parked in areas other than those designated by Lessor for such acƟviƟes. (b)Lessee shall not service or store any vehicles in the Common Areas. (c)If Lessee permits or allows any of the prohibited acƟviƟes described in this Paragraph 2.6,then Lessor shall have the right,without noƟce,in addiƟon to such other rights and remedies that it may have,to remove or tow away the vehicle involved and charge the cost to Lessee,which cost shall be immediately payable upon demand by Lessor. 2.7 Common Areas -DefiniƟon.The term "Common Areas"is defined as all areas and faciliƟes outside the Premises and within the exterior boundary line of the Project and interior uƟlity raceways and installaƟons within the Unit that are provided and designated by the Lessor from Ɵme to Ɵme for the general non-exclusive use of Lessor,Lessee and other tenants of the Project and their respecƟve employees,suppliers,shippers,customers,contractors and invitees,including parking areas,loading and unloading areas,trash areas,roofs,roadways,walkways,driveways and landscaped areas. 2.8 Common Areas -Lessee's Rights.Lessor grants to Lessee,for the benefit of Lessee and its employees,suppliers,shippers,contractors,customers and invitees,during the term of this Lease,the non-exclusive right to use,in common with others enƟtled to such use,the Common Areas as they exist from Ɵme to Ɵme, subject to any rights,powers,and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulaƟons or restricƟons governing the use of the Project.Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property,temporarily or permanently,in the Common Areas.Any such storage shall be permiƩed only by the prior wriƩen consent of Lessor or Lessor's designated agent,which consent may be revoked at any Ɵme.In the event that any unauthorized storage shall occur,then Lessor shall have the right,without noƟce,in addiƟon to such other rights and remedies that it may have,to remove the property and charge the cost to Lessee,which cost shall be immediately payable upon demand by Lessor. 2.9 Common Areas -Rules and RegulaƟons.Lessor or such other person(s)as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right,from Ɵme to Ɵme,to establish,modify,amend and enforce reasonable rules and regulaƟons ("Rules and RegulaƟons")for the management,safety,care,and cleanliness of the grounds,the parking and unloading of vehicles and the preservaƟon of good order,as well as for the convenience of other occupants or tenants of the Building and the Project and their invitees.Lessee agrees to abide by and conform to all such Rules and RegulaƟons,and shall use its best efforts to cause its employees,suppliers,shippers,customers,contractors and invitees to so abide and conform.Lessor shall not be responsible to Lessee for the non-compliance with said Rules and RegulaƟons by other tenants of the Project. 2.10 Common Areas -Changes.Lessor shall have the right,in Lessor's sole discreƟon,from Ɵme to Ɵme: (a)To make changes to the Common Areas,including,without limitaƟon,changes in the locaƟon,size,shape and number of driveways,entrances, parking spaces,parking areas,loading and unloading areas,ingress,egress,direcƟon of traffic,landscaped areas,walkways and uƟlity raceways; (b)To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available; (c)To designate other land outside the boundaries of the Project to be a part of the Common Areas; (d)To add addiƟonal buildings and improvements to the Common Areas; (e)To use the Common Areas while engaged in making addiƟonal improvements,repairs or alteraƟons to the Project,or any porƟon thereof;and (f)To do and perform such other acts and make such other changes in,to or with respect to the Common Areas and Project as Lessor may,in the exercise of sound business judgment,deem to be appropriate. 3.Term. 3.1 Term.The Commencement Date,ExpiraƟon Date and Original Term of this Lease are as specified in Paragraph 1.3. 3.2 Early Possession.Any provision herein granƟng Lessee Early Possession of the Premises is subject to and condiƟoned upon the Premises being available for such possession prior to the Commencement Date.Any grant of Early Possession only conveys a non-exclusive right to occupy the Premises.If Lessee totally or parƟally occupies the Premises prior to the Commencement Date,the obligaƟon to pay Base Rent shall be abated for the period of such Early Possession.All other terms of this Lease (including but not limited to the obligaƟons to pay Lessee's Share of Common Area OperaƟng Expenses,Real Property Taxes and insurance premiums and to maintain the Premises)shall be in effect during such period.Any such Early Possession shall not affect the ExpiraƟon Date. 3.3 Delay In Possession.Lessor agrees to use commercially reasonable efforts to deliver exclusive possession of the Premises to Lessee by the Commencement Date.If,despite said efforts,Lessor is unable to deliver possession by such date,Lessor shall not be subject to any liability therefor,nor shall such failure affect the validity of this Lease or change the ExpiraƟon Date.Lessee shall not,however,be obligated to pay Rent or perform its other obligaƟons unƟl Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and conƟnue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof,but minus any days of delay caused by the acts or omissions of Lessee.If possession is not delivered within 60 days aŌer the Commencement Date,as the same may be extended under the terms of any Work LeƩer executed by ParƟes,Lessee may,at its opƟon,by noƟce in wriƟng within 10 days aŌer the end of such 60 day period,cancel this Lease,in which event the ParƟes shall be discharged from all obligaƟons hereunder.If such wriƩen noƟce is not received by Lessor within said 10 day period,Lessee's right to cancel shall terminate.If possession of the Premises is not delivered within 120 days aŌer the Commencement Date,this Lease shall terminate unless other agreements are reached between Lessor and Lessee,in wriƟng. 3.4 Lessee Compliance.Lessor shall not be required to tender possession of the Premises to Lessee unƟl Lessee complies with its obligaƟon to provide evidence of insurance (Paragraph 8.5).Pending delivery of such evidence,Lessee shall be required to perform all of its obligaƟons under this Lease from and aŌer the Start Date,including the payment of Rent,notwithstanding Lessor's elecƟon to withhold possession pending receipt of such evidence of insurance.Further,if Lessee is required to perform any other condiƟons prior to or concurrent with the Start Date,the Start Date shall occur but Lessor may elect to withhold possession unƟl such condiƟons are saƟsfied. 4.Rent. 4.1 Rent Defined.All monetary obligaƟons of Lessee to Lessor under the terms of this Lease (except for the Security Deposit)are deemed to be rent ("Rent"). 4.2 Common Area OperaƟng Expenses.Lessee shall pay to Lessor during the term hereof,in addiƟon to the Base Rent,Lessee's Share (as specified in Page 188 of 350 Paragraph 1.6)of all Common Area OperaƟng Expenses,as hereinaŌer defined,during each calendar year of the term of this Lease,in accordance with the following provisions: (a)"Common Area OperaƟng Expenses"are defined,for purposes of this Lease,as all costs relaƟng to the ownership and operaƟon of the Project, including,but not limited to,the following: (i)The operaƟon,repair and maintenance,in neat,clean,good order and condiƟon,and if necessary the replacement,of the following: (aa)The Common Areas and Common Area improvements,including parking areas,loading and unloading areas,trash areas,roadways, parkways,walkways,driveways,landscaped areas,bumpers,irrigaƟon systems,Common Area lighƟng faciliƟes,fences and gates,elevators,roofs,exterior walls of the buildings,building systems and roof drainage systems. (bb)Exterior signs and any tenant directories. (cc)Any fire sprinkler systems. (dd)All other areas and improvements that are within the exterior boundaries of the Project but outside of the Premises and/or any other space occupied by a tenant. (ii)The cost of water,gas,electricity and telephone to service the Common Areas and any uƟliƟes not separately metered. (iii)The cost of trash disposal,pest control services,property management,security services,owners'associaƟon dues and fees,the cost to repaint the exterior of any structures and the cost of any environmental inspecƟons. (iv)Reserves set aside for maintenance,repair and/or replacement of Common Area improvements and equipment. (v)Real Property Taxes (as defined in Paragraph 10). (vi)The cost of the premiums for the insurance maintained by Lessor pursuant to Paragraph 8. (vii)Any deducƟble porƟon of an insured loss concerning the Building or the Common Areas. (viii)Auditors',accountants'and aƩorneys'fees and costs related to the operaƟon,maintenance,repair and replacement of the Project. (ix)The cost of any capital improvement to the Building or the Project not covered under the provisions of Paragraph 2.3 provided;however,that Lessor shall allocate the cost of any such capital improvement over a 12 year period and Lessee shall not be required to pay more than Lessee's Share of 1/144th of the cost of such capital improvement in any given month.Lessee shall pay Interest on the unamorƟzed balance but may prepay its obligaƟon at any Ɵme. (x)The cost of any other services to be provided by Lessor that are stated elsewhere in this Lease to be a Common Area OperaƟng Expense. (b)Any Common Area OperaƟng Expenses and Real Property Taxes that are specifically aƩributable to the Unit,the Building or to any other building in the Project or to the operaƟon,repair and maintenance thereof,shall be allocated enƟrely to such Unit,Building,or other building.However,any Common Area OperaƟng Expenses and Real Property Taxes that are not specifically aƩributable to the Building or to any other building or to the operaƟon,repair and maintenance thereof,shall be equitably allocated by Lessor to all buildings in the Project. (c)The inclusion of the improvements,faciliƟes and services set forth in Subparagraph 4.2(a)shall not be deemed to impose an obligaƟon upon Lessor to either have said improvements or faciliƟes or to provide those services unless the Project already has the same,Lessor already provides the services,or Lessor has agreed elsewhere in this Lease to provide the same or some of them. (d)Lessee's Share of Common Area OperaƟng Expenses is payable monthly on the same day as the Base Rent is due hereunder.The amount of such payments shall be based on Lessor's esƟmate of the annual Common Area OperaƟng Expenses.Within 60 days aŌer wriƩen request (but not more than once each year)Lessor shall deliver to Lessee a reasonably detailed statement showing Lessee's Share of the actual Common Area OperaƟng Expenses for the preceding year.If Lessee's payments during such year exceed Lessee's Share,Lessor shall credit the amount of such over-payment against Lessee's future payments.If Lessee's payments during such year were less than Lessee's Share,Lessee shall pay to Lessor the amount of the deficiency within 10 days aŌer delivery by Lessor to Lessee of the statement. (e)Common Area OperaƟng Expenses shall not include any expenses paid by any tenant directly to third parƟes,or as to which Lessor is otherwise reimbursed by any third party,other tenant,or insurance proceeds. 4.3 Payment.Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States,without offset or deducƟon (except as specifically permiƩed in this Lease),on or before the day on which it is due.All monetary amounts shall be rounded to the nearest whole dollar.In the event that any statement or invoice prepared by Lessor is inaccurate such inaccuracy shall not consƟtute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease.Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month.Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from Ɵme to Ɵme designate in wriƟng. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent,regardless of Lessor's endorsement of any check so staƟng.In the event that any check,draŌ,or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addiƟon to any Late Charge to compensate Lessor for addiƟonal Ɵme and expenses incurred in handling the dishonored payment and Lessor,at its opƟon,may require all future Rent be paid by cashier's check.Payments will be applied first to accrued late charges and aƩorney's fees,second to accrued interest,then to Base Rent and Common Area OperaƟng Expenses,and any remaining amount to any other outstanding charges or costs. 5.Security Deposit.Lessee shall deposit with Lessor upon execuƟon hereof the Security Deposit as security for Lessee's faithful performance of its obligaƟons under this Lease.If Lessee fails to pay Rent,or otherwise Defaults under this Lease,Lessor may use,apply or retain all or any porƟon of said Security Deposit for the payment of any amount already due Lessor,for Rents which will be due in the future,and/or to reimburse or compensate Lessor for any liability,expense,loss or damage which Lessor may suffer or incur by reason thereof.If Lessor uses or applies all or any porƟon of the Security Deposit,Lessee shall within 10 days aŌer wriƩen request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease.If the Base Rent increases during the term of this Lease,Lessee shall,upon wriƩen request from Lessor,deposit addiƟonal monies with Lessor so that the total amount of the Security Deposit shall at all Ɵmes bear the same proporƟon to the increased Base Rent as the iniƟal Security Deposit bore to the iniƟal Base Rent.Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee,Lessor shall have the right to increase the Security Deposit to the extent necessary,in Lessor's reasonable judgment,to account for any increased wear and tear that the Premises may suffer as a result thereof.If a change in control of Lessee occurs during this Lease and following such change the financial condiƟon of Lessee is,in Lessor's reasonable judgment,significantly reduced,Lessee shall deposit such addiƟonal monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condiƟon.Lessor shall not be required to keep the Security Deposit separate from its general accounts.Within 90 days aŌer the expiraƟon or terminaƟon of this Lease,Lessor shall return that porƟon of the Security Deposit not used or applied by Lessor.Lessor shall upon wriƩen request provide Lessee with an accounƟng showing how that porƟon of the Security Deposit that was not returned was applied.No part of the Security Deposit shall bear interest or be considered prepayment for any monies to be paid by Lessee under this Lease.THE SECURITY DEPOSIT SHALL NOT BE USED BY LESSEE IN LIEU OF PAYMENT OF THE LAST MONTH'S RENT. 6.Use. Page 189 of 350 6.1 Use.Lessee shall use and occupy the Premises only for the Agreed Use,or any other legal use which is reasonably comparable thereto,and for no other purpose.Lessee shall not use or permit the use of the Premises in a manner that is unlawful,creates damage,waste or a nuisance,or that disturbs occupants of or causes damage to neighboring premises or properƟes.Other than guide,signal and seeing eye dogs,Lessee shall not keep or allow in the Premises any pets,animals, birds,fish,or repƟles.Lessor shall not unreasonably withhold or delay its consent to any wriƩen request for a modificaƟon of the Agreed Use,so long as the same will not impair the structural integrity of the Building or the mechanical or electrical systems therein,and/or is not significantly more burdensome to the Project.If Lessor elects to withhold consent,Lessor shall within 7 days aŌer such request give wriƩen noƟficaƟon of same,which noƟce shall include an explanaƟon of Lessor's objecƟons to the change in the Agreed Use. 6.2 Hazardous Substances. (a)Reportable Uses Require Consent.The term "Hazardous Substance"as used in this Lease shall mean any product,substance,or waste whose presence,use,manufacture,disposal,transportaƟon,or release,either by itself or in combinaƟon with other materials expected to be on the Premises,is either:(i) potenƟally injurious to the public health,safety or welfare,the environment or the Premises,(ii)regulated or monitored by any governmental authority,or (iii)a basis for potenƟal liability of Lessor to any governmental agency or third party under any applicable statute or common law theory.Hazardous Substances shall include,but not be limited to,hydrocarbons,petroleum,gasoline,and/or crude oil or any products,byproducts or fracƟons thereof.Lessee shall not engage in any acƟvity in or on the Premises which consƟtutes a Reportable Use of Hazardous Substances without the express prior wriƩen consent of Lessor and Ɵmely compliance (at Lessee's expense)with all Applicable Requirements."Reportable Use"shall mean (i)the installaƟon or use of any above or below ground storage tank,(ii)the generaƟon, possession,storage,use,transportaƟon,or disposal of a Hazardous Substance that requires a permit from,or with respect to which a report,noƟce,registraƟon or business plan is required to be filed with,any governmental authority,and/or (iii)the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a noƟce be given to persons entering or occupying the Premises or neighboring properƟes.Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use,ordinary office supplies (copier toner, liquid paper,glue,etc.)and common household cleaning materials,so long as such use is in compliance with all Applicable Requirements,is not a Reportable Use,and does not expose the Premises or neighboring property to any meaningful risk of contaminaƟon or damage or expose Lessor to any liability therefor.In addiƟon, Lessor may condiƟon its consent to any Reportable Use upon receiving such addiƟonal assurances as Lessor reasonably deems necessary to protect itself,the public, the Premises and/or the environment against damage,contaminaƟon,injury and/or liability,including,but not limited to,the installaƟon (and removal on or before Lease expiraƟon or terminaƟon)of protecƟve modificaƟons (such as concrete encasements)and/or increasing the Security Deposit. (b)Duty to Inform Lessor.If Lessee knows,or has reasonable cause to believe,that a Hazardous Substance has come to be located in,on,under or about the Premises,other than as previously consented to by Lessor,Lessee shall immediately give wriƩen noƟce of such fact to Lessor,and provide Lessor with a copy of any report,noƟce,claim or other documentaƟon which it has concerning the presence of such Hazardous Substance. (c)Lessee RemediaƟon.Lessee shall not cause or permit any Hazardous Substance to be spilled or released in,on,under,or about the Premises (including through the plumbing or sanitary sewer system)and shall promptly,at Lessee's expense,comply with all Applicable Requirements and take all invesƟgatory and/or remedial acƟon reasonably recommended,whether or not formally ordered or required,for the cleanup of any contaminaƟon of,and for the maintenance, security and/or monitoring of the Premises or neighboring properƟes,that was caused or materially contributed to by Lessee,or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease,by or for Lessee,or any third party. (d)Lessee IndemnificaƟon.Lessee shall indemnify,defend and hold Lessor,its agents,employees,lenders and ground lessor,if any,harmless from and against any and all loss of rents and/or damages,liabiliƟes,judgments,claims,expenses,penalƟes,and aƩorneys'and consultants'fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee,or any third party (provided,however,that Lessee shall have no liability under this Lease with respect to underground migraƟon of any Hazardous Substance under the Premises from areas outside of the Project not caused or contributed to by Lessee).Lessee's obligaƟons shall include,but not be limited to,the effects of any contaminaƟon or injury to person,property or the environment created or suffered by Lessee,and the cost of invesƟgaƟon,removal,remediaƟon,restoraƟon and/or abatement,and shall survive the expiraƟon or terminaƟon of this Lease.No terminaƟon, cancellaƟon or release agreement entered into by Lessor and Lessee shall release Lessee from its obligaƟons under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor in wriƟng at the Ɵme of such agreement. (e)Lessor IndemnificaƟon.Except as otherwise provided in paragraph 8.7,Lessor and its successors and assigns shall indemnify,defend,reimburse and hold Lessee,its employees and lenders,harmless from and against any and all environmental damages,including the cost of remediaƟon,which are suffered as a direct result of Hazardous Substances on the Premises prior to Lessee taking possession or which are caused by the gross negligence or willful misconduct of Lessor,its agents or employees.Lessor's obligaƟons,as and when required by the Applicable Requirements,shall include,but not be limited to,the cost of invesƟgaƟon, removal,remediaƟon,restoraƟon and/or abatement,and shall survive the expiraƟon or terminaƟon of this Lease. (f)InvesƟgaƟons and RemediaƟons.Lessor shall retain the responsibility and pay for any invesƟgaƟons or remediaƟon measures required by governmental enƟƟes having jurisdicƟon with respect to the existence of Hazardous Substances on the Premises prior to the Lessee taking possession,unless such remediaƟon measure is required as a result of Lessee's use (including "AlteraƟons",as defined in paragraph 7.3(a)below)of the Premises,in which event Lessee shall be responsible for such payment.Lessee shall cooperate fully in any such acƟviƟes at the request of Lessor,including allowing Lessor and Lessor's agents to have reasonable access to the Premises at reasonable Ɵmes in order to carry out Lessor's invesƟgaƟve and remedial responsibiliƟes. (g)Lessor TerminaƟon OpƟon.If a Hazardous Substance CondiƟon (see Paragraph 9.1(e))occurs during the term of this Lease,unless Lessee is legally responsible therefor (in which case Lessee shall make the invesƟgaƟon and remediaƟon thereof required by the Applicable Requirements and this Lease shall conƟnue in full force and effect,but subject to Lessor's rights under Paragraph 6.2(d)and Paragraph 13),Lessor may,at Lessor's opƟon,either (i)invesƟgate and remediate such Hazardous Substance CondiƟon,if required,as soon as reasonably possible at Lessor's expense,in which event this Lease shall conƟnue in full force and effect,or (ii)if the esƟmated cost to remediate such condiƟon exceeds 12 Ɵmes the then monthly Base Rent or $100,000,whichever is greater,give wriƩen noƟce to Lessee,within 30 days aŌer receipt by Lessor of knowledge of the occurrence of such Hazardous Substance CondiƟon,of Lessor's desire to terminate this Lease as of the date 60 days following the date of such noƟce.In the event Lessor elects to give a terminaƟon noƟce,Lessee may,within 10 days thereaŌer,give wriƩen noƟce to Lessor of Lessee's commitment to pay the amount by which the cost of the remediaƟon of such Hazardous Substance CondiƟon exceeds an amount equal to 12 Ɵmes the then monthly Base Rent or $100,000,whichever is greater.Lessee shall provide Lessor with said funds or saƟsfactory assurance thereof within 30 days following such commitment.In such event,this Lease shall conƟnue in full force and effect,and Lessor shall proceed to make such remediaƟon as soon as reasonably possible aŌer the required funds are available.If Lessee does not give such noƟce and provide the required funds or assurance thereof within the Ɵme provided,this Lease shall terminate as of the date specified in Lessor's noƟce of terminaƟon. 6.3 Lessee's Compliance with Applicable Requirements.Except as otherwise provided in this Lease,Lessee shall,at Lessee's sole expense,fully,diligently and in a Ɵmely manner,materially comply with all Applicable Requirements,the requirements of any applicable fire insurance underwriter or raƟng bureau,and the recommendaƟons of Lessor's engineers and/or consultants which relate in any manner to the Premises,without regard to whether said Applicable Requirements are now in effect or become effecƟve aŌer the Start Date.Lessee shall,within 10 days aŌer receipt of Lessor's wriƩen request,provide Lessor with copies of all permits and other documents,and other informaƟon evidencing Lessee's compliance with any Applicable Requirements specified by Lessor,and shall immediately upon Page 190 of 350 receipt,noƟfy Lessor in wriƟng (with copies of any documents involved)of any threatened or actual claim,noƟce,citaƟon,warning,complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements.Likewise,Lessee shall immediately give wriƩen noƟce to Lessor of:(i) any water damage to the Premises and any suspected seepage,pooling,dampness or other condiƟon conducive to the producƟon of mold;or (ii)any musƟness or other odors that might indicate the presence of mold in the Premises. 6.4 InspecƟon;Compliance.Lessor and Lessor's "Lender"(as defined in Paragraph 30)and consultants authorized by Lessor shall have the right to enter into Premises at any Ɵme in the case of an emergency,and otherwise at reasonable Ɵmes aŌer reasonable noƟce,for the purpose of inspecƟng and/or tesƟng the condiƟon of the Premises and/or for verifying compliance by Lessee with this Lease.The cost of any such inspecƟons shall be paid by Lessor,unless a violaƟon of Applicable Requirements,or a Hazardous Substance CondiƟon (see Paragraph 9.1(e))is found to exist or be imminent,or the inspecƟon is requested or ordered by a governmental authority.In such case,Lessee shall upon request reimburse Lessor for the cost of such inspecƟon,so long as such inspecƟon is reasonably related to the violaƟon or contaminaƟon.In addiƟon,Lessee shall provide copies of all relevant material safety data sheets (MSDS)to Lessor within 10 days of the receipt of wriƩen request therefor.Lessee acknowledges that any failure on its part to allow such inspecƟons or tesƟng will expose Lessor to risks and potenƟally cause Lessor to incur costs not contemplated by this Lease,the extent of which will be extremely difficult to ascertain.Accordingly,should the Lessee fail to allow such inspecƟons and/or tesƟng in a Ɵmely fashion the Base Rent shall be automaƟcally increased,without any requirement for noƟce to Lessee,by an amount equal to 10%of the then exisƟng Base Rent or $100,whichever is greater for the remainder to the Lease.The ParƟes agree that such increase in Base Rent represents fair and reasonable compensaƟon for the addiƟonal risk/costs that Lessor will incur by reason of Lessee's failure to allow such inspecƟon and/or tesƟng.Such increase in Base Rent shall in no event consƟtute a waiver of Lessee's Default or Breach with respect to such failure nor prevent the exercise of any of the other rights and remedies granted hereunder. 7.Maintenance;Repairs;UƟlity InstallaƟons;Trade Fixtures and AlteraƟons. 7.1 Lessee's ObligaƟons. (a)In General.Subject to the provisions of Paragraph 2.2 (CondiƟon),2.3 (Compliance),6.3 (Lessee's Compliance with Applicable Requirements),7.2 (Lessor's ObligaƟons),9 (Damage or DestrucƟon),and 14 (CondemnaƟon),Lessee shall,at Lessee's sole expense,keep the Premises,UƟlity InstallaƟons (intended for Lessee's exclusive use,no maƩer where located),and AlteraƟons in good order,condiƟon and repair (whether or not the porƟon of the Premises requiring repairs,or the means of repairing the same,are reasonably or readily accessible to Lessee,and whether or not the need for such repairs occurs as a result of Lessee's use,any prior use,the elements or the age of such porƟon of the Premises),including,but not limited to,all equipment or faciliƟes,such as plumbing,HVAC equipment, electrical,lighƟng faciliƟes,boilers,pressure vessels,fixtures,interior walls,interior surfaces of exterior walls,ceilings,floors,windows,doors,plate glass,and skylights but excluding any items which are the responsibility of Lessor pursuant to Paragraph 7.2.Lessee,in keeping the Premises in good order,condiƟon and repair, shall exercise and perform good maintenance pracƟces,specifically including the procurement and maintenance of the service contracts required by Paragraph 7.1(b) below.Lessee's obligaƟons shall include restoraƟons,replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order,condiƟon and state of repair. (b)Service Contracts.Lessee shall,at Lessee's sole expense,procure and maintain contracts,with copies to Lessor,in customary form and substance for, and with contractors specializing and experienced in the maintenance of the following equipment and improvements,if any,if and when installed on the Premises:(i) HVAC equipment,(ii)boiler and pressure vessels,and (iii)clarifiers.However,Lessor reserves the right,upon noƟce to Lessee,to procure and maintain any or all of such service contracts,and Lessee shall reimburse Lessor,upon demand,for the cost thereof. (c)Failure to Perform.If Lessee fails to perform Lessee's obligaƟons under this Paragraph 7.1,Lessor may enter upon the Premises aŌer 10 days'prior wriƩen noƟce to Lessee (except in the case of an emergency,in which case no noƟce shall be required),perform such obligaƟons on Lessee's behalf,and put the Premises in good order,condiƟon and repair,and Lessee shall promptly pay to Lessor a sum equal to 115%of the cost thereof. (d)Replacement.Subject to Lessee's indemnificaƟon of Lessor as set forth in Paragraph 8.7 below,and without relieving Lessee of liability resulƟng from Lessee's failure to exercise and perform good maintenance pracƟces,if an item described in Paragraph 7.1(b)cannot be repaired other than at a cost which is in excess of 50%of the cost of replacing such item,then such item shall be replaced by Lessor,and the cost thereof shall be prorated between the ParƟes and Lessee shall only be obligated to pay,each month during the remainder of the term of this Lease or any extension thereof,on the date on which Base Rent is due,an amount equal to the product of mulƟplying the cost of such replacement by a fracƟon,the numerator of which is one,and the denominator of which is 144 (i.e.1/144th of the cost per month).Lessee shall pay Interest on the unamorƟzed balance but may prepay its obligaƟon at any Ɵme. 7.2 Lessor's ObligaƟons.Subject to the provisions of Paragraphs 2.2 (CondiƟon),2.3 (Compliance),4.2 (Common Area OperaƟng Expenses),6 (Use),7.1 (Lessee's ObligaƟons),9 (Damage or DestrucƟon)and 14 (CondemnaƟon),Lessor,subject to reimbursement pursuant to Paragraph 4.2,shall keep in good order, condiƟon and repair the foundaƟons,exterior walls,structural condiƟon of interior bearing walls,exterior roof,fire sprinkler system,Common Area fire alarm and/or smoke detecƟon systems,fire hydrants,parking lots,walkways,parkways,driveways,landscaping,fences,signs and uƟlity systems serving the Common Areas and all parts thereof,as well as providing the services for which there is a Common Area OperaƟng Expense pursuant to Paragraph 4.2.Lessor shall not be obligated to paint the exterior or interior surfaces of exterior walls nor shall Lessor be obligated to maintain,repair or replace windows,doors or plate glass of the Premises. 7.3 UƟlity InstallaƟons;Trade Fixtures;AlteraƟons. (a)DefiniƟons.The term "UƟlity InstallaƟons"refers to all floor and window coverings,air and/or vacuum lines,power panels,electrical distribuƟon, security and fire protecƟon systems,communicaƟon cabling,lighƟng fixtures,HVAC equipment,plumbing,and fencing in or on the Premises.The term "Trade Fixtures"shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises.The term "AlteraƟons"shall mean any modificaƟon of the improvements,other than UƟlity InstallaƟons or Trade Fixtures,whether by addiƟon or deleƟon."Lessee Owned AlteraƟons and/or UƟlity InstallaƟons"are defined as AlteraƟons and/or UƟlity InstallaƟons made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a). (b)Consent.Lessee shall not make any AlteraƟons or UƟlity InstallaƟons to the Premises without Lessor's prior wriƩen consent.Lessee may,however, make non-structural AlteraƟons or UƟlity InstallaƟons to the interior of the Premises (excluding the roof)without such consent but upon noƟce to Lessor,as long as they are not visible from the outside,do not involve puncturing,relocaƟng or removing the roof or any exisƟng walls,will not affect the electrical,plumbing,HVAC, and/or life safety systems,do not trigger the requirement for addiƟonal modificaƟons and/or improvements to the Premises resulƟng from Applicable Requirements, such as compliance with Title 24,and/or life safety systems,and the cumulaƟve cost thereof during this Lease as extended does not exceed a sum equal to 3 month's Base Rent in the aggregate or a sum equal to one month's Base Rent in any one year.Notwithstanding the foregoing,Lessee shall not make or permit any roof penetraƟons and/or install anything on the roof without the prior wriƩen approval of Lessor.Lessor may,as a precondiƟon to granƟng such approval,require Lessee to uƟlize a contractor chosen and/or approved by Lessor.Any AlteraƟons or UƟlity InstallaƟons that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in wriƩen form with detailed plans.Consent shall be deemed condiƟoned upon Lessee's:(i)acquiring all applicable governmental permits,(ii)furnishing Lessor with copies of both the permits and the plans and specificaƟons prior to commencement of the work,and (iii)compliance with all condiƟons of said permits and other Applicable Requirements in a prompt and expediƟous manner.Any AlteraƟons or UƟlity InstallaƟons shall be performed in a workmanlike manner with good and sufficient materials.Lessee shall promptly upon compleƟon furnish Lessor with as-built plans and specificaƟons.For work which costs an amount in excess of one month's Base Rent,Lessor may condiƟon its consent upon Lessee providing a lien and compleƟon bond in an amount equal to 150% Page 191 of 350 of the esƟmated cost of such AlteraƟon or UƟlity InstallaƟon and/or upon Lessee's posƟng an addiƟonal Security Deposit with Lessor. (c)Liens;Bonds.Lessee shall pay,when due,all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises,which claims are or may be secured by any mechanic's or materialmen's lien against the Premises or any interest therein.Lessee shall give Lessor not less than 10 days noƟce prior to the commencement of any work in,on or about the Premises,and Lessor shall have the right to post noƟces of non-responsibility.If Lessee shall contest the validity of any such lien,claim or demand,then Lessee shall,at its sole expense defend and protect itself,Lessor and the Premises against the same and shall pay and saƟsfy any such adverse judgment that may be rendered thereon before the enforcement thereof.If Lessor shall require,Lessee shall furnish a surety bond in an amount equal to 150%of the amount of such contested lien,claim or demand,indemnifying Lessor against liability for the same.If Lessor elects to parƟcipate in any such acƟon,Lessee shall pay Lessor's aƩorneys'fees and costs. 7.4 Ownership;Removal;Surrender;and RestoraƟon. (a)Ownership.Subject to Lessor's right to require removal or elect ownership as hereinaŌer provided,all AlteraƟons and UƟlity InstallaƟons made by Lessee shall be the property of Lessee,but considered a part of the Premises.Lessor may,at any Ɵme,elect in wriƟng to be the owner of all or any specified part of the Lessee Owned AlteraƟons and UƟlity InstallaƟons.Unless otherwise instructed per paragraph 7.4(b)hereof,all Lessee Owned AlteraƟons and UƟlity InstallaƟons shall,at the expiraƟon or terminaƟon of this Lease,become the property of Lessor and be surrendered by Lessee with the Premises. (b)Removal.By delivery to Lessee of wriƩen noƟce from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned AlteraƟons or UƟlity InstallaƟons be removed by the expiraƟon or terminaƟon of this Lease.Lessor may require the removal at any Ɵme of all or any part of any Lessee Owned AlteraƟons or UƟlity InstallaƟons made without the required consent. (c)Surrender;RestoraƟon.Lessee shall surrender the Premises by the ExpiraƟon Date or any earlier terminaƟon date,with all of the improvements, parts and surfaces thereof broom clean and free of debris,and in good operaƟng order,condiƟon and state of repair,ordinary wear and tear excepted."Ordinary wear and tear"shall not include any damage or deterioraƟon that would have been prevented by good maintenance pracƟce.Notwithstanding the foregoing and the provisions of Paragraph 7.1(a),if the Lessee occupies the Premises for 12 months or less,then Lessee shall surrender the Premises in the same condiƟon as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear.Lessee shall repair any damage occasioned by the installaƟon,maintenance or removal of Trade Fixtures,Lessee owned AlteraƟons and/or UƟlity InstallaƟons,furnishings,and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall also remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee,or any third party (except Hazardous Substances which were deposited via underground migraƟon from areas outside of the Project)to the level specified in Applicable Requirements.Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee.Any personal property of Lessee not removed on or before the ExpiraƟon Date or any earlier terminaƟon date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire.The failure by Lessee to Ɵmely vacate the Premises pursuant to this Paragraph 7.4(c)without the express wriƩen consent of Lessor shall consƟtute a holdover under the provisions of Paragraph 26 below. 8.Insurance;Indemnity. 8.1 Payment of Premiums.The cost of the premiums for the insurance policies required to be carried by Lessor,pursuant to Paragraphs 8.2(b),8.3(a)and 8.3(b),shall be a Common Area OperaƟng Expense.Premiums for policy periods commencing prior to,or extending beyond,the term of this Lease shall be prorated to coincide with the corresponding Start Date or ExpiraƟon Date. 8.2 Liability Insurance. (a)Carried by Lessee.Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecƟng Lessee and Lessor as an addiƟonal insured against claims for bodily injury,personal injury and property damage based upon or arising out of the ownership,use,occupancy or maintenance of the Premises and all areas appurtenant thereto.Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000.Lessee shall add Lessor as an addiƟonal insured by means of an endorsement at least as broad as the Insurance Service OrganizaƟon's "AddiƟonal Insured-Managers or Lessors of Premises"Endorsement.The policy shall not contain any intra-insured exclusions as between insured persons or organizaƟons,but shall include coverage for liability assumed under this Lease as an "insured contract"for the performance of Lessee's indemnity obligaƟons under this Lease.The limits of said insurance shall not,however,limit the liability of Lessee nor relieve Lessee of any obligaƟon hereunder. Lessee shall provide an endorsement on its liability policy(ies)which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor,whose insurance shall be considered excess insurance only. (b)Carried by Lessor.Lessor shall maintain liability insurance as described in Paragraph 8.2(a),in addiƟon to,and not in lieu of,the insurance required to be maintained by Lessee.Lessee shall not be named as an addiƟonal insured therein. 8.3 Property Insurance -Building,Improvements and Rental Value. (a)Building and Improvements.Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor,with loss payable to Lessor, any ground-lessor,and to any Lender insuring loss or damage to the Premises.The amount of such insurance shall be equal to the full insurable replacement cost of the Premises,as the same shall exist from Ɵme to Ɵme,or the amount required by any Lender,but in no event more than the commercially reasonable and available insurable value thereof.Lessee Owned AlteraƟons and UƟlity InstallaƟons,Trade Fixtures,and Lessee's personal property shall be insured by Lessee not by Lessor.If the coverage is available and commercially appropriate,such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender),including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demoliƟon,reconstrucƟon or replacement of any porƟon of the Premises as the result of a covered loss.Said policy or policies shall also contain an agreed valuaƟon provision in lieu of any coinsurance clause,waiver of subrogaƟon,and inflaƟon guard protecƟon causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S.Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located.If such insurance coverage has a deducƟble clause,the deducƟble amount shall not exceed $5,000 per occurrence. (b)Rental Value.Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender,insuring the loss of the full Rent for one year with an extended period of indemnity for an addiƟonal 180 days ("Rental Value insurance").Said insurance shall contain an agreed valuaƟon provision in lieu of any coinsurance clause,and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee,for the next 12 month period. (c)Adjacent Premises.Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Project if said increase is caused by Lessee's acts,omissions,use or occupancy of the Premises. (d)Lessee's Improvements.Since Lessor is the Insuring Party,Lessor shall not be required to insure Lessee Owned AlteraƟons and UƟlity InstallaƟons unless the item in quesƟon has become the property of Lessor under the terms of this Lease. 8.4 Lessee's Property;Business InterrupƟon Insurance;Worker's CompensaƟon Insurance. (a)Property Damage.Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property,Trade Fixtures,and Lessee Owned AlteraƟons and UƟlity InstallaƟons.Such insurance shall be full replacement cost coverage with a deducƟble of not to exceed $1,000 per occurrence.The proceeds from any such insurance shall be used by Lessee for the replacement of personal property,Trade Fixtures and Lessee Owned AlteraƟons and UƟlity InstallaƟons. Page 192 of 350 (b)Business InterrupƟon.Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earnings aƩributable to all perils commonly insured against by prudent lessees in the business of Lessee or aƩributable to prevenƟon of access to the Premises as a result of such perils. (c)Worker's CompensaƟon Insurance.Lessee shall obtain and maintain Worker's CompensaƟon Insurance in such amount as may be required by Applicable Requirements.Such policy shall include a 'Waiver of SubrogaƟon'endorsement.Lessee shall provide Lessor with a copy of such endorsement along with the cerƟficate of insurance or copy of the policy required by paragraph 8.5. (d)No RepresentaƟon of Adequate Coverage.Lessor makes no representaƟon that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee's property,business operaƟons or obligaƟons under this Lease. 8.5 Insurance Policies.Insurance required herein shall be by companies maintaining during the policy term a "General Policyholders RaƟng"of at least A-,VII, as set forth in the most current issue of "Best's Insurance Guide",or such other raƟng as may be required by a Lender.Lessee shall not do or permit to be done anything which invalidates the required insurance policies.Lessee shall,prior to the Start Date,deliver to Lessor cerƟfied copies of policies of such insurance or cerƟficates with copies of the required endorsements evidencing the existence and amounts of the required insurance.No such policy shall be cancelable or subject to modificaƟon except aŌer 30 days prior wriƩen noƟce to Lessor.Lessee shall,at least 10 days prior to the expiraƟon of such policies,furnish Lessor with evidence of renewals or "insurance binders"evidencing renewal thereof,or Lessor may increase his liability insurance coverage and charge the cost thereof to Lessee,which amount shall be payable by Lessee to Lessor upon demand.Such policies shall be for a term of at least one year,or the length of the remaining term of this Lease, whichever is less.If either Party shall fail to procure and maintain the insurance required to be carried by it,the other Party may,but shall not be required to,procure and maintain the same. 8.6 Waiver of SubrogaƟon.Without affecƟng any other rights or remedies,Lessee and Lessor each hereby release and relieve the other,and waive their enƟre right to recover damages against the other,for loss of or damage to its property arising out of or incident to the perils required to be insured against herein.The effect of such releases and waivers is not limited by the amount of insurance carried or required,or by any deducƟbles applicable hereto.The ParƟes agree to have their respecƟve property damage insurance carriers waive any right to subrogaƟon that such companies may have against Lessor or Lessee,as the case may be,so long as the insurance is not invalidated thereby. 8.7 Indemnity.Except for Lessor's gross negligence or willful misconduct,Lessee shall indemnify,protect,defend and hold harmless the Premises,Lessor and its agents,Lessor's master or ground lessor,partners and Lenders,from and against any and all claims,loss of rents and/or damages,liens,judgments,penalƟes, aƩorneys'and consultants'fees,expenses and/or liabiliƟes arising out of,involving,or in connecƟon with,a Breach of the Lease by Lessee and/or the use and/or occupancy of the Premises and/or Project by Lessee and/or by Lessee's employees,contractors or invitees .If any acƟon or proceeding is brought against Lessor by reason of any of the foregoing maƩers,Lessee shall upon noƟce defend the same at Lessee's expense by counsel reasonably saƟsfactory to Lessor and Lessor shall cooperate with Lessee in such defense.Lessor need not have first paid any such claim in order to be defended or indemnified. 8.8 ExempƟon of Lessor and its Agents from Liability.Notwithstanding the negligence or breach of this Lease by Lessor or its agents,neither Lessor nor its agents shall be liable under any circumstances for:(i)injury or damage to the person or goods,wares,merchandise or other property of Lessee,Lessee's employees, contractors,invitees,customers,or any other person in or about the Premises,whether such damage or injury is caused by or results from fire,steam,electricity,gas, water or rain,indoor air quality,the presence of mold or from the breakage,leakage,obstrucƟon or other defects of pipes,fire sprinklers,wires,appliances,plumbing, HVAC or lighƟng fixtures,or from any other cause,whether the said injury or damage results from condiƟons arising upon the Premises or upon other porƟons of the Building,or from other sources or places;(ii)any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project;or (iii)injury to Lessee's business or for any loss of income or profit therefrom.Instead,it is intended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies)that Lessee is required to maintain pursuant to the provisions of paragraph 8. 8.9 Failure to Provide Insurance.Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potenƟally cause Lessor to incur costs not contemplated by this Lease,the extent of which will be extremely difficult to ascertain.Accordingly,for any month or porƟon thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or cerƟficates evidencing the existence of the required insurance,the Base Rent shall be automaƟcally increased,without any requirement for noƟce to Lessee,by an amount equal to 10%of the then exisƟng Base Rent or $100,whichever is greater.The parƟes agree that such increase in Base Rent represents fair and reasonable compensaƟon for the addiƟonal risk/costs that Lessor will incur by reason of Lessee's failure to maintain the required insurance.Such increase in Base Rent shall in no event consƟtute a waiver of Lessee's Default or Breach with respect to the failure to maintain such insurance,prevent the exercise of any of the other rights and remedies granted hereunder,nor relieve Lessee of its obligaƟon to maintain the insurance specified in this Lease. 9.Damage or DestrucƟon. 9.1 DefiniƟons. (a)"Premises ParƟal Damage"shall mean damage or destrucƟon to the improvements on the Premises,other than Lessee Owned AlteraƟons and UƟlity InstallaƟons,which can reasonably be repaired in 3 months or less from the date of the damage or destrucƟon,and the cost thereof does not exceed a sum equal to 6 month's Base Rent.Lessor shall noƟfy Lessee in wriƟng within 30 days from the date of the damage or destrucƟon as to whether or not the damage is ParƟal or Total. (b)"Premises Total DestrucƟon"shall mean damage or destrucƟon to the improvements on the Premises,other than Lessee Owned AlteraƟons and UƟlity InstallaƟons and Trade Fixtures,which cannot reasonably be repaired in 3 months or less from the date of the damage or destrucƟon and/or the cost thereof exceeds a sum equal to 6 month's Base Rent.Lessor shall noƟfy Lessee in wriƟng within 30 days from the date of the damage or destrucƟon as to whether or not the damage is ParƟal or Total. (c)"Insured Loss"shall mean damage or destrucƟon to improvements on the Premises,other than Lessee Owned AlteraƟons and UƟlity InstallaƟons and Trade Fixtures,which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a),irrespecƟve of any deducƟble amounts or coverage limits involved. (d)"Replacement Cost"shall mean the cost to repair or rebuild the improvements owned by Lessor at the Ɵme of the occurrence to their condiƟon exisƟng immediately prior thereto,including demoliƟon,debris removal and upgrading required by the operaƟon of Applicable Requirements,and without deducƟon for depreciaƟon. (e)"Hazardous Substance CondiƟon"shall mean the occurrence or discovery of a condiƟon involving the presence of,or a contaminaƟon by,a Hazardous Substance,in,on,or under the Premises which requires restoraƟon. 9.2 ParƟal Damage -Insured Loss.If a Premises ParƟal Damage that is an Insured Loss occurs,then Lessor shall,at Lessor's expense,repair such damage (but not Lessee's Trade Fixtures or Lessee Owned AlteraƟons and UƟlity InstallaƟons)as soon as reasonably possible and this Lease shall conƟnue in full force and effect; provided,however,that Lessee shall,at Lessor's elecƟon,make the repair of any damage or destrucƟon the total cost to repair of which is $10,000 or less,and,in such event,Lessor shall make any applicable insurance proceeds available to Lessee on a reasonable basis for that purpose.Notwithstanding the foregoing,if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair,the Insuring Party shall promptly contribute the shortage in proceeds as Page 193 of 350 and when required to complete said repairs.In the event,however,such shortage was due to the fact that,by reason of the unique nature of the improvements,full replacement cost insurance coverage was not commercially reasonable and available,Lessor shall have no obligaƟon to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same,or adequate assurance thereof,within 10 days following receipt of wriƩen noƟce of such shortage and request therefor.If Lessor receives said funds or adequate assurance thereof within said 10 day period,the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect.If such funds or assurance are not received,Lessor may nevertheless elect by wriƩen noƟce to Lessee within 10 days thereaŌer to:(i)make such restoraƟon and repair as is commercially reasonable with Lessor paying any shortage in proceeds,in which case this Lease shall remain in full force and effect,or (ii)have this Lease terminate 30 days thereaŌer.Lessee shall not be enƟtled to reimbursement of any funds contributed by Lessee to repair any such damage or destrucƟon.Premises ParƟal Damage due to flood or earthquake shall be subject to Paragraph 9.3,notwithstanding that there may be some insurance coverage,but the net proceeds of any such insurance shall be made available for the repairs if made by either Party. 9.3 ParƟal Damage -Uninsured Loss.If a Premises ParƟal Damage that is not an Insured Loss occurs,unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense),Lessor may either:(i)repair such damage as soon as reasonably possible at Lessor's expense (subject to reimbursement pursuant to Paragraph 4.2),in which event this Lease shall conƟnue in full force and effect,or (ii)terminate this Lease by giving wriƩen noƟce to Lessee within 30 days aŌer receipt by Lessor of knowledge of the occurrence of such damage.Such terminaƟon shall be effecƟve 60 days following the date of such noƟce.In the event Lessor elects to terminate this Lease,Lessee shall have the right within 10 days aŌer receipt of the terminaƟon noƟce to give wriƩen noƟce to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor.Lessee shall provide Lessor with said funds or saƟsfactory assurance thereof within 30 days aŌer making such commitment.In such event this Lease shall conƟnue in full force and effect,and Lessor shall proceed to make such repairs as soon as reasonably possible aŌer the required funds are available.If Lessee does not make the required commitment,this Lease shall terminate as of the date specified in the terminaƟon noƟce. 9.4 Total DestrucƟon.Notwithstanding any other provision hereof,if a Premises Total DestrucƟon occurs,this Lease shall terminate 60 days following such DestrucƟon.If the damage or destrucƟon was caused by the gross negligence or willful misconduct of Lessee,Lessor shall have the right to recover Lessor's damages from Lessee,except as provided in Paragraph 8.6. 9.5 Damage Near End of Term.If at any Ɵme during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent,whether or not an Insured Loss,Lessor may terminate this Lease effecƟve 60 days following the date of occurrence of such damage by giving a wriƩen terminaƟon noƟce to Lessee within 30 days aŌer the date of occurrence of such damage.Notwithstanding the foregoing,if Lessee at that Ɵme has an exercisable opƟon to extend this Lease or to purchase the Premises,then Lessee may preserve this Lease by (a)exercising such opƟon and (b)providing Lessor with any shortage in insurance proceeds (or adequate assurance thereof)needed to make the repairs on or before the earlier of (i)the date which is 10 days aŌer Lessee's receipt of Lessor's wriƩen noƟce purporƟng to terminate this Lease,or (ii)the day prior to the date upon which such opƟon expires.If Lessee duly exercises such opƟon during such period and provides Lessor with funds (or adequate assurance thereof)to cover any shortage in insurance proceeds,Lessor shall,at Lessor's commercially reasonable expense,repair such damage as soon as reasonably possible and this Lease shall conƟnue in full force and effect.If Lessee fails to exercise such opƟon and provide such funds or assurance during such period,then this Lease shall terminate on the date specified in the terminaƟon noƟce and Lessee's opƟon shall be exƟnguished. 9.6 Abatement of Rent;Lessee's Remedies. (a)Abatement.In the event of Premises ParƟal Damage or Premises Total DestrucƟon or a Hazardous Substance CondiƟon for which Lessee is not responsible under this Lease,the Rent payable by Lessee for the period required for the repair,remediaƟon or restoraƟon of such damage shall be abated in proporƟon to the degree to which Lessee's use of the Premises is impaired,but not to exceed the proceeds received from the Rental Value insurance.All other obligaƟons of Lessee hereunder shall be performed by Lessee,and Lessor shall have no liability for any such damage,destrucƟon,remediaƟon,repair or restoraƟon except as provided herein. (b)Remedies.If Lessor is obligated to repair or restore the Premises and does not commence,in a substanƟal and meaningful way,such repair or restoraƟon within 90 days aŌer such obligaƟon shall accrue,Lessee may,at any Ɵme prior to the commencement of such repair or restoraƟon,give wriƩen noƟce to Lessor and to any Lenders of which Lessee has actual noƟce,of Lessee's elecƟon to terminate this Lease on a date not less than 60 days following the giving of such noƟce.If Lessee gives such noƟce and such repair or restoraƟon is not commenced within 30 days thereaŌer,this Lease shall terminate as of the date specified in said noƟce.If the repair or restoraƟon is commenced within such 30 days,this Lease shall conƟnue in full force and effect."Commence"shall mean either the uncondiƟonal authorizaƟon of the preparaƟon of the required plans,or the beginning of the actual work on the Premises,whichever first occurs. 9.7 TerminaƟon;Advance Payments.Upon terminaƟon of this Lease pursuant to Paragraph 6.2(g)or Paragraph 9,an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor.Lessor shall,in addiƟon,return to Lessee so much of Lessee's Security Deposit as has not been,or is not then required to be,used by Lessor. 10.Real Property Taxes. 10.1 DefiniƟon.As used herein,the term "Real Property Taxes"shall include any form of assessment;real estate,general,special,ordinary or extraordinary,or rental levy or tax (other than inheritance,personal income or estate taxes);improvement bond;and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Project,Lessor's right to other income therefrom,and/or Lessor's business of leasing,by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Project address.The term "Real Property Taxes"shall also include any tax,fee,levy,assessment or charge,or any increase therein:(i)imposed by reason of events occurring during the term of this Lease,including but not limited to,a change in the ownership of the Project,(ii)a change in the improvements thereon,and/or (iii)levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease. In calculaƟng Real Property Taxes for any calendar year,the Real Property Taxes for any real estate tax year shall be included in the calculaƟon of Real Property Taxes for such calendar year based upon the number of days which such calendar year and tax year have in common. 10.2 Payment of Taxes.Except as otherwise provided in Paragraph 10.3,Lessor shall pay the Real Property Taxes applicable to the Project,and said payments shall be included in the calculaƟon of Common Area OperaƟng Expenses in accordance with the provisions of Paragraph 4.2. 10.3 AddiƟonal Improvements.Common Area OperaƟng Expenses shall not include Real Property Taxes specified in the tax assessor's records and work sheets as being caused by addiƟonal improvements placed upon the Project by other lessees or by Lessor for the exclusive enjoyment of such other lessees.Notwithstanding Paragraph 10.2 hereof,Lessee shall,however,pay to Lessor at the Ɵme Common Area OperaƟng Expenses are payable under Paragraph 4.2,the enƟrety of any increase in Real Property Taxes if assessed solely by reason of AlteraƟons,Trade Fixtures or UƟlity InstallaƟons placed upon the Premises by Lessee or at Lessee's request or by reason of any alteraƟons or improvements to the Premises made by Lessor subsequent to the execuƟon of this Lease by the ParƟes. 10.4 Joint Assessment.If the Building is not separately assessed,Real Property Taxes allocated to the Building shall be an equitable proporƟon of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed,such proporƟon to be determined by Lessor from the respecƟve valuaƟons assigned in the assessor's work sheets or such other informaƟon as may be reasonably available.Lessor's reasonable determinaƟon thereof,in good faith, shall be conclusive. Page 194 of 350 10.5 Personal Property Taxes.Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned AlteraƟons and UƟlity InstallaƟons,Trade Fixtures,furnishings,equipment and all personal property of Lessee contained in the Premises.When possible,Lessee shall cause its Lessee Owned AlteraƟons and UƟlity InstallaƟons,Trade Fixtures,furnishings,equipment and all other personal property to be assessed and billed separately from the real property of Lessor.If any of Lessee's said property shall be assessed with Lessor's real property,Lessee shall pay Lessor the taxes aƩributable to Lessee's property within 10 days aŌer receipt of a wriƩen statement seƫng forth the taxes applicable to Lessee's property. 11.UƟliƟes and Services. 11.1 Lessee shall pay for all water,gas,heat,light,power,telephone,trash disposal and other uƟliƟes and services supplied to the Premises,together with any taxes thereon.Notwithstanding the provisions of Paragraph 4.2,if at any Ɵme in Lessor's sole judgment,Lessor determines that Lessee is using a disproporƟonate amount of water,electricity or other commonly metered uƟliƟes,or that Lessee is generaƟng suc h a large volume of trash as to require an increase in the size of the trash receptacle and/or an increase in the number of Ɵmes per month that it is empƟed,then Lessor may increase Lessee's Base Rent by an amount equal to such increased costs.There shall be no abatement of Rent and Lessor shall not be liable in any respect whatsoever for the inadequacy,stoppage,interrupƟon or disconƟnuance of any uƟlity or service due to riot,strike,labor dispute,breakdown,accident,repair or other cause beyond Lessor's reasonable control or in cooperaƟon with governmental request or direcƟons. 11.2 Within fiŌeen days of Lessor's wriƩen request,Lessee agrees to deliver to Lessor such informaƟon,documents and/or authorizaƟon as Lessor needs in order for Lessor to comply with new or exisƟng Applicable Requirements relaƟng to commercial building energy usage,raƟngs,and/or the reporƟng thereof. 12.Assignment and Subleƫng. 12.1 Lessor's Consent Required. (a)Lessee shall not voluntarily or by operaƟon of law assign,transfer,mortgage or encumber (collecƟvely,"assign or assignment")or sublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior wriƩen consent. (b)Unless Lessee is a corporaƟon and its stock is publicly traded on a naƟonal stock exchange,a change in the control of Lessee shall consƟtute an assignment requiring consent.The transfer,on a cumulaƟve basis,of 25%or more of the voƟng control of Lessee shall consƟtute a change in control for this purpose. (c)The involvement of Lessee or its assets in any transacƟon,or series of transacƟons (by way of merger,sale,acquisiƟon,financing,transfer,leveraged buyout or otherwise),whether or not a formal assignment or hypothecaƟon of this Lease or Lessee's assets occurs,which results or will result in a reducƟon of the Net Worth of Lessee by an amount greater than 25%of such Net Worth as it was represented at the Ɵme of the execuƟon of this Lease or at the Ɵme of the most recent assignment to which Lessor has consented,or as it exists immediately prior to said transacƟon or transacƟons consƟtuƟng such reducƟon,whichever was or is greater,shall be considered an assignment of this Lease to which Lessor may withhold its consent."Net Worth of Lessee"shall mean the net worth of Lessee (excluding any guarantors)established under generally accepted accounƟng principles. (d)An assignment or subleƫng without consent shall,at Lessor's opƟon,be a Default curable aŌer noƟce per Paragraph 13.1(d),or a non-curable Breach without the necessity of any noƟce and grace period.If Lessor elects to treat such unapproved assignment or subleƫng as a non-curable Breach,Lessor may either: (i)terminate this Lease,or (ii)upon 30 days wriƩen noƟce,increase the monthly Base Rent to 110%of the Base Rent then in effect.Further,in the event of such Breach and rental adjustment,(i)the purchase price of any opƟon to purchase the Premises held by Lessee shall be subject to similar adjustment to 110%of the price previously in effect,and (ii)all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110%of the scheduled adjusted rent. (e)Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injuncƟve relief. (f)Lessor may reasonably withhold consent to a proposed assignment or subleƫng if Lessee is in Default at the Ɵme consent is requested. (g)Notwithstanding the foregoing,allowing a de minimis porƟon of the Premises,i.e.20 square feet or less,to be used by a third party vendor in connecƟon with the installaƟon of a vending machine or payphone shall not consƟtute a subleƫng. 12.2 Terms and CondiƟons Applicable to Assignment and Subleƫng. (a)Regardless of Lessor's consent,no assignment or subleƫng shall :(i)be effecƟve without the express wriƩen assumpƟon by such assignee or sublessee of the obligaƟons of Lessee under this Lease,(ii)release Lessee of any obligaƟons hereunder,or (iii)alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligaƟons to be performed by Lessee. (b)Lessor may accept Rent or performance of Lessee's obligaƟons from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall consƟtute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach. (c)Lessor's consent to any assignment or subleƫng shall not consƟtute a consent to any subsequent assignment or subleƫng. (d)In the event of any Default or Breach by Lessee,Lessor may proceed directly against Lessee,any Guarantors or anyone else responsible for the performance of Lessee's obligaƟons under this Lease,including any assignee or sublessee,without first exhausƟng Lessor's remedies against any other person or enƟty responsible therefor to Lessor,or any security held by Lessor. (e)Each request for consent to an assignment or subleƫng shall be in wriƟng,accompanied by informaƟon relevant to Lessor's determinaƟon as to the financial and operaƟonal responsibility and appropriateness of the proposed assignee or sublessee,including but not limited to the intended use and/or required modificaƟon of the Premises,if any,together with a fee of $500 as consideraƟon for Lessor's considering and processing said request.Lessee agrees to provide Lessor with such other or addiƟonal informaƟon and/or documentaƟon as may be reasonably requested.(See also Paragraph 36) (f)Any assignee of,or sublessee under,this Lease shall,by reason of accepƟng such assignment,entering into such sublease,or entering into possession of the Premises or any porƟon thereof,be deemed to have assumed and agreed to conform and comply with each and every term,covenant,condiƟon and obligaƟon herein to be observed or performed by Lessee during the term of said assignment or sublease,other than such obligaƟons as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in wriƟng. (g)Lessor's consent to any assignment or subleƫng shall not transfer to the assignee or sublessee any OpƟon granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in wriƟng.(See Paragraph 39.2) 12.3 AddiƟonal Terms and CondiƟons Applicable to Subleƫng.The following terms and condiƟons shall apply to any subleƫng by Lessee of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein: (a)Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease,and Lessor may collect such Rent and apply same toward Lessee's obligaƟons under this Lease;provided,however,that unƟl a Breach shall occur in the performance of Lessee's obligaƟons,Lessee may collect said Rent.In the event that the amount collected by Lessor exceeds Lessee's then outstanding obligaƟons any such excess shall be refunded to Lessee.Lessor shall not,by reason of the foregoing or any assignment of such sublease,nor by reason of the collecƟon of Rent,be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligaƟons to such sublessee.Lessee hereby irrevocably authorizes and directs any such sublessee,upon receipt of a wriƩen noƟce from Lessor staƟng that a Breach exists in the performance of Lessee's obligaƟons under this Lease,to pay to Lessor all Rent due and to become due Page 195 of 350 under the sublease.Sublessee shall rely upon any such noƟce from Lessor and shall pay all Rents to Lessor without any obligaƟon or right to inquire as to whether such Breach exists,notwithstanding any claim from Lessee to the contrary. (b)In the event of a Breach by Lessee,Lessor may,at its opƟon,require sublessee to aƩorn to Lessor,in which event Lessor shall undertake the obligaƟons of the sublessor under such sublease from the Ɵme of the exercise of said opƟon to the expiraƟon of such sublease;provided,however,Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor. (c)Any maƩer requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d)No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior wriƩen consent. (e)Lessor shall deliver a copy of any noƟce of Default or Breach by Lessee to the sublessee,who shall have the right to cure the Default of Lessee within the grace period,if any,specified in such noƟce.The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee. 13.Default;Breach;Remedies. 13.1 Default;Breach.A "Default"is defined as a failure by the Lessee to comply with or perform any of the terms,covenants,condiƟons or Rules and RegulaƟons under this Lease.A "Breach"is defined as the occurrence of one or more of the following Defaults,and the failure of Lessee to cure such Default within any applicable grace period: (a)The abandonment of the Premises;the vacaƟng of the Premises prior to the expiraƟon or terminaƟon of this Lease without providing a commercially reasonable level of security,or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof,or without providing reasonable assurances to minimize potenƟal vandalism;or failure to deliver to Lessor exclusive possession of the enƟre Premises in accordance herewith prior to the expiraƟon or terminaƟon of this Lease. (b)The failure of Lessee to (i)make any payment of Rent or any Security Deposit required to be made by Lessee hereunder,whether to Lessor or to a third party,when due,(ii)to provide reasonable evidence of insurance or surety bond,or (iii)to fulfill any obligaƟon under this Lease which endangers or threatens life or property,where such failure conƟnues for a period of 3 business days following wriƩen noƟce to Lessee.THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS,INCLUDING LESSOR'S RIGHT TO RECOVER POSSESSION OF THE PREMISES. (c)The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste,act or acts consƟtuƟng public or private nuisance,and/or an illegal acƟvity on the Premises by Lessee,where such acƟons conƟnue for a period of 3 business days following wriƩen noƟce to Lessee.In the event that Lessee commits waste,a nuisance or an illegal acƟvity a second Ɵme then,the Lessor may elect to treat such conduct as a non-curable Breach rather than a Default. (d)The failure by Lessee to provide (i)reasonable wriƩen evidence of compliance with Applicable Requirements,(ii)the service contracts,(iii)the rescission of an unauthorized assignment or subleƫng,(iv)an Estoppel CerƟficate or financial statements,(v)a requested subordinaƟon,(vi)evidence concerning any guaranty and/or Guarantor,(vii)any document requested under Paragraph 41,(viii)material safety data sheets (MSDS),or (ix)any other documentaƟon or informaƟon which Lessor may reasonably require of Lessee under the terms of this Lease,where any such failure conƟnues for a period of 10 days following wriƩen noƟce to Lessee. (e)A Default by Lessee as to the terms,covenants,condiƟons or provisions of this Lease,or of the rules adopted under Paragraph 2.9 hereof,other than those described in subparagraphs 13.1(a),(b),(c)or (d),above,where such Default conƟnues for a period of 30 days aŌer wriƩen noƟce;provided,however,that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure,then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereaŌer diligently prosecutes such cure to compleƟon. (f)The occurrence of any of the following events:(i)the making of any general arrangement or assignment for the benefit of creditors;(ii)becoming a "debtor"as defined in 11 U.S.C.§101 or any successor statute thereto (unless,in the case of a peƟƟon filed against Lessee,the same is dismissed within 60 days);(iii) the appointment of a trustee or receiver to take possession of substanƟally all of Lessee's assets located at the Premises or of Lessee's interest in this Lease,where possession is not restored to Lessee within 30 days;or (iv)the aƩachment,execuƟon or other judicial seizure of substanƟally all of Lessee's assets located at the Premises or of Lessee's interest in this Lease,where such seizure is not discharged within 30 days;provided,however,in the event that any provision of this subparagraph is contrary to any applicable law,such provision shall be of no force or effect,and not affect the validity of the remaining provisions. (g)The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (h)If the performance of Lessee's obligaƟons under this Lease is guaranteed:(i)the death of a Guarantor,(ii)the terminaƟon of a Guarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty,(iii)a Guarantor's becoming insolvent or the subject of a bankruptcy filing,(iv)a Guarantor's refusal to honor the guaranty,or (v)a Guarantor's breach of its guaranty obligaƟon on an anƟcipatory basis,and Lessee's failure,within 60 days following wriƩen noƟce of any such event,to provide wriƩen alternaƟve assurance or security,which,when coupled with the then exisƟng resources of Lessee,equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the Ɵme of execuƟon of this Lease. 13.2 Remedies.If Lessee fails to perform any of its affirmaƟve duƟes or obligaƟons,within 10 days aŌer wriƩen noƟce (or in case of an emergency,without noƟce),Lessor may,at its opƟon,perform such duty or obligaƟon on Lessee's behalf,including but not limited to the obtaining of reasonably required bonds, insurance policies,or governmental licenses,permits or approvals.Lessee shall pay to Lessor an amount equal to 115%of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor.In the event of a Breach,Lessor may,with or without further noƟce or demand,and without limiƟng Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach: (a)Terminate Lessee's right to possession of the Premises by any lawful means,in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor.In such event Lessor shall be enƟtled to recover from Lessee:(i)the unpaid Rent which had been earned at the Ɵme of terminaƟon; (ii)the worth at the Ɵme of award of the amount by which the unpaid rent which would have been earned aŌer terminaƟon unƟl the Ɵme of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided;(iii)the worth at the Ɵme of award of the amount by which the unpaid rent for the balance of the term aŌer the Ɵme of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided;and (iv)any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform its obligaƟons under this Lease or which in the ordinary course of things would be likely to result therefrom,including but not limited to the cost of recovering possession of the Premises,expenses of releƫng,including necessary renovaƟon and alteraƟon of the Premises,reasonable aƩorneys'fees,and that porƟon of any leasing commission paid by Lessor in connecƟon with this Lease applicable to the unexpired term of this Lease.Lessor and Lessee agree that the damages to be incurred by the Lessor in the event of Lessee's default of the Lease would be difficult or impossible to calculate and the parƟes therefore intend to provide by the foregoing for liquidated damages and not a penalty and agree that the sum provided is a reasonable pre-esƟmate of the probable loss.The worth at the Ɵme of award of the amount referred to in provision (iii)of the immediately preceding sentence shall be computed by discounƟng such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the Ɵme of award plus one percent.Efforts by Lessor to miƟgate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover any damages to which Lessor is otherwise enƟtled.If terminaƟon of this Lease is obtained through the provisional remedy of unlawful detainer,Lessor shall have the Page 196 of 350 right to recover in such proceeding any unpaid Rent and damages as are recoverable therein,or Lessor may reserve the right to recover all or any part thereof in a separate suit.If a noƟce and grace period required under Paragraph 13.1 was not previously given,a noƟce to pay rent or quit,or to perform or quit given to Lessee under the unlawful detainer statute shall also consƟtute the noƟce required by Paragraph 13.1.In such case,the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently,and the failure of Lessee to cure the Default within the greater of the two such grace periods shall consƟtute both an unlawful detainer and a Breach of this Lease enƟtling Lessor to the remedies provided for in this Lease and/or by said statute. (b)ConƟnue the Lease and Lessee's right to possession and recover the Rent as it becomes due,in which event Lessee may sublet or assign,subject only to reasonable limitaƟons.Acts of maintenance,efforts to relet,and/or the appointment of a receiver to protect the Lessor's interests,shall not consƟtute a terminaƟon of the Lessee's right to possession. (c)Pursue any other remedy now or hereaŌer available under the laws or judicial decisions of the state wherein the Premises are located.The expiraƟon or terminaƟon of this Lease and/or the terminaƟon of Lessee's right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to maƩers occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises. 13.3 Inducement Recapture.Any agreement for free or abated rent or other charges,the cost of tenant improvements for Lessee paid for or performed by Lessor,or for the giving or paying by Lessor to or for Lessee of any cash or other bonus,inducement or consideraƟon for Lessee's entering into this Lease,all of which concessions are hereinaŌer referred to as "Inducement Provisions,"shall be deemed condiƟoned upon Lessee's full and faithful performance of all of the terms, covenants and condiƟons of this Lease.Upon Breach of this Lease by Lessee,any such Inducement Provision shall automaƟcally be deemed deleted from this Lease and of no further force or effect,and any rent,other charge,bonus,inducement or consideraƟon theretofore abated,given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor,notwithstanding any subsequent cure of said Breach by Lessee.The acceptance by Lessor of rent or the cure of the Breach which iniƟated the operaƟon of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in wriƟng by Lessor at the Ɵme of such acceptance. 13.4 Late Charges.Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease,the exact amount of which will be extremely difficult to ascertain.Such costs include,but are not limited to,processing and accounƟng charges,and late charges which may be imposed upon Lessor by any Lender.Accordingly,if any Rent shall not be received by Lessor within 5 days aŌer such amount shall be due,then,without any requirement for noƟce to Lessee,Lessee shall immediately pay to Lessor a one-Ɵme late charge equal to 10%of each such overdue amount or $100,whichever is greater.The parƟes hereby agree that such late charge represents a fair and reasonable esƟmate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event consƟtute a waiver of Lessee's Default or Breach with respect to such overdue amount,nor prevent the exercise of any of the other rights and remedies granted hereunder.In the event that a late charge is payable hereunder,whether or not collected,for 3 consecuƟve installments of Base Rent,then notwithstanding any provision of this Lease to the contrary,Base Rent shall,at Lessor's opƟon,become due and payable quarterly in advance. 13.5 Interest.Any monetary payment due Lessor hereunder,other than late charges,not received by Lessor,when due shall bear interest from the 31st day aŌer it was due.The interest ("Interest")charged shall be computed at the rate of 10%per annum but shall not exceed the maximum rate allowed by law.Interest is payable in addiƟon to the potenƟal late charge provided for in Paragraph 13.4. 13.6 Breach by Lessor. (a)NoƟce of Breach.Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable Ɵme to perform an obligaƟon required to be performed by Lessor.For purposes of this Paragraph,a reasonable Ɵme shall in no event be less than 30 days aŌer receipt by Lessor,and any Lender whose name and address shall have been furnished to Lessee in wriƟng for such purpose,of wriƩen noƟce specifying wherein such obligaƟon of Lessor has not been performed; provided,however,that if the nature of Lessor's obligaƟon is such that more than 30 days are reasonably required for its performance,then Lessor shall not be in breach if performance is commenced within such 30 day period and thereaŌer diligently pursued to compleƟon. (b)Performance by Lessee on Behalf of Lessor.In the event that neither Lessor nor Lender cures said breach within 30 days aŌer receipt of said noƟce, or if having commenced said cure they do not diligently pursue it to compleƟon,then Lessee may elect to cure said breach at Lessee's expense and offset from Rent the actual and reasonable cost to perform such cure,provided however,that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit,reserving Lessee's right to reimbursement from Lessor for any such expense in excess of such offset.Lessee shall document the cost of said cure and supply said documentaƟon to Lessor. 14.CondemnaƟon.If the Premises or any porƟon thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collecƟvely "CondemnaƟon"),this Lease shall terminate as to the part taken as of the date the condemning authority takes Ɵtle or possession,whichever first occurs. If more than 10%of the floor area of the Unit,or more than 25%of the parking spaces is taken by CondemnaƟon,Lessee may,at Lessee's opƟon,to be exercised in wriƟng within 10 days aŌer Lessor shall have given Lessee wriƩen noƟce of such taking (or in the absence of such noƟce,within 10 days aŌer the condemning authority shall have taken possession)terminate this Lease as of the date the condemning authority takes such possession.If Lessee does not terminate this Lease in accordance with the foregoing,this Lease shall remain in full force and effect as to the porƟon of the Premises remaining,except that the Base Rent shall be reduced in proporƟon to the reducƟon in uƟlity of the Premises caused by such CondemnaƟon.CondemnaƟon awards and/or payments shall be the property of Lessor, whether such award shall be made as compensaƟon for diminuƟon in value of the leasehold,the value of the part taken,or for severance damages;provided, however,that Lessee shall be enƟtled to any compensaƟon paid by the condemnor for Lessee's relocaƟon expenses,loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph.All AlteraƟons and UƟlity InstallaƟons made to the Premises by Lessee,for purposes of CondemnaƟon only,shall be considered the property of the Lessee and Lessee shall be enƟtled to any and all compensaƟon which is payable therefor.In the event that this Lease is not terminated by reason of the CondemnaƟon,Lessor shall repair any damage to the Premises caused by such CondemnaƟon. 15.Brokerage Fees. 15.1 AddiƟonal Commission.In addiƟon to the payments owed pursuant to Paragraph 1.10 above,Lessor agrees that:(a)if Lessee exercises any OpƟon,(b)if Lessee or anyone affiliated with Lessee acquires from Lessor any rights to the Premises or other premises owned by Lessor and located within the Project,(c)if Lessee remains in possession of the Premises,with the consent of Lessor,aŌer the expiraƟon of this Lease,or (d)if Base Rent is increased,whether by agreement or operaƟon of an escalaƟon clause herein,then,Lessor shall pay Brokers a fee in accordance with the fee schedule of the Brokers in effect at the Ɵme the Lease was executed.The provisions of this paragraph are intended to supersede the provisions of any earlier agreement to the contrary. 15.2 AssumpƟon of ObligaƟons.Any buyer or transferee of Lessor's interest in this Lease shall be deemed to have assumed Lessor's obligaƟon hereunder. Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.10,15,22 and 31.If Lessor fails to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due,then such amounts shall accrue Interest.In addiƟon,if Lessor fails to pay any amounts to Lessee's Broker when due,Lessee's Broker may send wriƩen noƟce to Lessor and Lessee of such failure and if Lessor fails to pay such amounts within 10 days aŌer said noƟce,Lessee shall pay said monies to its Broker and offset such amounts against Rent.In addiƟon,Lessee's Broker shall be deemed to be a third party beneficiary of any commission agreement Page 197 of 350 entered into by and/or between Lessor and Lessor's Broker for the limited purpose of collecƟng any brokerage fee owed. 15.3 RepresentaƟons and IndemniƟes of Broker RelaƟonships.Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person,firm,broker,agent or finder (other than the Brokers and Agents,if any)in connecƟon with this Lease,and that no one other than said named Brokers and Agents is enƟtled to any commission or finder's fee in connecƟon herewith.Lessee and Lessor do each hereby agree to indemnify,protect,defend and hold the other harmless from and against liability for compensaƟon or charges which may be claimed by any such unnamed broker,finder or other similar party by reason of any dealings or acƟons of the indemnifying Party,including any costs,expenses,aƩorneys'fees reasonably incurred with respect thereto. 16.Estoppel CerƟficates. (a)Each Party (as "Responding Party")shall within 10 days aŌer wriƩen noƟce from the other Party (the "RequesƟng Party")execute,acknowledge and deliver to the RequesƟng Party a statement in wriƟng in form similar to the then most current "Estoppel CerƟficate"form published by AIR CRE,plus such addiƟonal informaƟon,confirmaƟon and/or statements as may be reasonably requested by the RequesƟng Party. (b)If the Responding Party shall fail to execute or deliver the Estoppel CerƟficate within such 10 day period,the RequesƟng Party may execute an Estoppel CerƟficate staƟng that:(i)the Lease is in full force and effect without modificaƟon except as may be represented by the RequesƟng Party,(ii)there are no uncured defaults in the RequesƟng Party's performance,and (iii)if Lessor is the RequesƟng Party,not more than one month's rent has been paid in advance. ProspecƟve purchasers and encumbrancers may rely upon the RequesƟng Party's Estoppel CerƟficate,and the Responding Party shall be estopped from denying the truth of the facts contained in said CerƟficate.In addiƟon,Lessee acknowledges that any failure on its part to provide such an Estoppel CerƟficate will expose Lessor to risks and potenƟally cause Lessor to incur costs not contemplated by this Lease,the extent of which will be extremely difficult to ascertain.Accordingly,should the Lessee fail to execute and/or deliver a requested Estoppel CerƟficate in a Ɵmely fashion the monthly Base Rent shall be automaƟcally increased,without any requirement for noƟce to Lessee,by an amount equal to 10%of the then exisƟng Base Rent or $100,whichever is greater for remainder of the Lease.The ParƟes agree that such increase in Base Rent represents fair and reasonable compensaƟon for the addiƟonal risk/costs that Lessor will incur by reason of Lessee's failure to provide the Estoppel CerƟficate.Such increase in Base Rent shall in no event consƟtute a waiver of Lessee's Default or Breach with respect to the failure to provide the Estoppel CerƟficate nor prevent the exercise of any of the other rights and remedies granted hereunder. (c)If Lessor desires to finance,refinance,or sell the Premises,or any part thereof,Lessee and all Guarantors shall within 10 days aŌer wriƩen noƟce from Lessor deliver to any potenƟal lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee's financial statements for the past 3 years.All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth. 17.DefiniƟon of Lessor.The term "Lessor"as used herein shall mean the owner or owners at the Ɵme in quesƟon of the fee Ɵtle to the Premises,or,if this is a sublease,of the Lessee's interest in the prior lease.In the event of a transfer of Lessor's Ɵtle or interest in the Premises or this Lease,Lessor shall deliver to the transferee or assignee (in cash or by credit)any unused Security Deposit held by Lessor.Upon such transfer or assignment and delivery of the Security Deposit,as aforesaid,the prior Lessor shall be relieved of all liability with respect to the obligaƟons and/or covenants under this Lease thereaŌer to be performed by the Lessor. Subject to the foregoing,the obligaƟons and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined. 18.Severability.The invalidity of any provision of this Lease,as determined by a court of competent jurisdicƟon,shall in no way affect the validity of any other provision hereof. 19.Days.Unless otherwise specifically indicated to the contrary,the word "days"as used in this Lease shall mean and refer to calendar days. 20.LimitaƟon on Liability.The obligaƟons of Lessor under this Lease shall not consƟtute personal obligaƟons of Lessor,or its partners,members,directors,officers or shareholders,and Lessee shall look to the Premises,and to no other assets of Lessor,for the saƟsfacƟon of any liability of Lessor with respect to this Lease,and shall not seek recourse against Lessor's partners,members,directors,officers or shareholders,or any of their personal assets for such saƟsfacƟon. 21.Time of Essence.Time is of the essence with respect to the performance of all obligaƟons to be performed or observed by the ParƟes under this Lease. 22.No Prior or Other Agreements;Broker Disclaimer.This Lease contains all agreements between the ParƟes with respect to any maƩer menƟoned herein,and no other prior or contemporaneous agreement or understanding shall be effecƟve.Lessor and Lessee each represents and warrants to the Brokers that it has made,and is relying solely upon,its own invesƟgaƟon as to the nature,quality,character and financial responsibility of the other Party to this Lease and as to the use,nature, quality and character of the Premises.Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party. 23.NoƟces. 23.1 NoƟce Requirements.All noƟces required or permiƩed by this Lease or applicable law shall be in wriƟng and may be delivered in person (by hand or by courier)or may be sent by regular,cerƟfied or registered mail or U.S.Postal Service Express Mail,with postage prepaid,or by facsimile transmission,or by email,and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23.The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of noƟces.Either Party may by wriƩen noƟce to the other specify a different address for noƟce,except that upon Lessee's taking possession of the Premises,the Premises shall consƟtute Lessee's address for noƟce.A copy of all noƟces to Lessor shall be concurrently transmiƩed to such party or parƟes at such addresses as Lessor may from Ɵme to Ɵme hereaŌer designate in wriƟng. 23.2 Date of NoƟce.Any noƟce sent by registered or cerƟfied mail,return receipt requested,shall be deemed given on the date of delivery shown on the receipt card,or if no delivery date is shown,the postmark thereon.If sent by regular mail the noƟce shall be deemed given 72 hours aŌer the same is addressed as required herein and mailed with postage prepaid.NoƟces delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours aŌer delivery of the same to the Postal Service or courier.NoƟces delivered by hand,or transmiƩed by facsimile transmission or by email shall be deemed delivered upon actual receipt.If noƟce is received on a Saturday,Sunday or legal holiday,it shall be deemed received on the next business day. 23.3 OpƟons.Notwithstanding the foregoing,in order to exercise any OpƟons (see paragraph 39),the NoƟce must be sent by CerƟfied Mail (return receipt requested),Express Mail (signature required),courier (signature required)or some other methodology that provides a receipt establishing the date the noƟce was received by the Lessor. 24.Waivers. (a)No waiver by Lessor of the Default or Breach of any term,covenant or condiƟon hereof by Lessee,shall be deemed a waiver of any other term, covenant or condiƟon hereof,or of any subsequent Default or Breach by Lessee of the same or of any other term,covenant or condiƟon hereof.Lessor's consent to, or approval of,any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to,or approval of,any subsequent or similar act by Lessee,or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. (b)The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee.Any payment by Lessee may be accepted by Lessor on Page 198 of 350 account of monies or damages due Lessor,notwithstanding any qualifying statements or condiƟons made by Lessee in connecƟon therewith,which such statements and/or condiƟons shall be of no force or effect whatsoever unless specifically agreed to in wriƟng by Lessor at or before the Ɵme of deposit of such payment. (c)THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE. 25.Disclosures Regarding The Nature of a Real Estate Agency RelaƟonship. (a)When entering into a discussion with a real estate agent regarding a real estate transacƟon,a Lessor or Lessee should from the outset understand what type of agency relaƟonship or representaƟon it has with the agent or agents in the transacƟon.Lessor and Lessee acknowledge being advised by the Brokers in this transacƟon,as follows: (i)Lessor's Agent.A Lessor's agent under a lisƟng agreement with the Lessor acts as the agent for the Lessor only.A Lessor's agent or subagent has the following affirmaƟve obligaƟons:To the Lessor:A fiduciary duty of utmost care,integrity,honesty,and loyalty in dealings with the Lessor.To the Lessee and the Lessor:(a)Diligent exercise of reasonable skills and care in performance of the agent's duƟes.(b)A duty of honest and fair dealing and good faith.(c)A duty to disclose all facts known to the agent materially affecƟng the value or desirability of the property that are not known to,or within the diligent aƩenƟon and observaƟon of,the ParƟes.An agent is not obligated to reveal to either Party any confidenƟal informaƟon obtained from the other Party which does not involve the affirmaƟve duƟes set forth above. (ii)Lessee's Agent.An agent can agree to act as agent for the Lessee only.In these situaƟons,the agent is not the Lessor's agent,even if by agreement the agent may receive compensaƟon for services rendered,either in full or in part from the Lessor.An agent acƟng only for a Lessee has the following affirmaƟve obligaƟons.To the Lessee:A fiduciary duty of utmost care,integrity,honesty,and loyalty in dealings with the Lessee.To the Lessee and the Lessor:(a) Diligent exercise of reasonable skills and care in performance of the agent's duƟes.(b)A duty of honest and fair dealing and good faith.(c)A duty to disclose all facts known to the agent materially affecƟng the value or desirability of the property that are not known to,or within the diligent aƩenƟon and observaƟon of,the ParƟes. An agent is not obligated to reveal to either Party any confidenƟal informaƟon obtained from the other Party which does not involve the affirmaƟve duƟes set forth above. (iii)Agent RepresenƟng Both Lessor and Lessee.A real estate agent,either acƟng directly or through one or more associate licensees,can legally be the agent of both the Lessor and the Lessee in a transacƟon,but only with the knowledge and consent of both the Lessor and the Lessee.In a dual agency situaƟon, the agent has the following affirmaƟve obligaƟons to both the Lessor and the Lessee:(a)A fiduciary duty of utmost care,integrity,honesty and loyalty in the dealings with either Lessor or the Lessee.(b)Other duƟes to the Lessor and the Lessee as stated above in subparagraphs (i)or (ii).In represenƟng both Lessor and Lessee,the agent may not,without the express permission of the respecƟve Party,disclose to the other Party confidenƟal informaƟon,including,but not limited to,facts relaƟng to either Lessee's or Lessor's financial posiƟon,moƟvaƟons,bargaining posiƟon,or other personal informaƟon that may impact rent,including Lessor's willingness to accept a rent less than the lisƟng rent or Lessee's willingness to pay rent greater than the rent offered.The above duƟes of the agent in a real estate transacƟon do not relieve a Lessor or Lessee from the responsibility to protect their own interests.Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the transacƟon.A real estate agent is a person qualified to advise about real estate.If legal or tax advice is desired,consult a competent professional.Both Lessor and Lessee should strongly consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transacƟon can be complex and subject to change. (b)Brokers have no responsibility with respect to any default or breach hereof by either Party.The ParƟes agree that no lawsuit or other legal proceeding involving any breach of duty,error or omission relaƟng to this Lease may be brought against Broker more than one year aŌer the Start Date and that the liability (including court costs and aƩorneys'fees),of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease;provided,however,that the foregoing limitaƟon on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker. (c)Lessor and Lessee agree to idenƟfy to Brokers as "ConfidenƟal"any communicaƟon or informaƟon given Brokers that is considered by such Party to be confidenƟal. 26.No Right To Holdover.Lessee has no right to retain possession of the Premises or any part thereof beyond the expiraƟon or terminaƟon of this Lease.At or prior to the expiraƟon or terminaƟon of this Lease Lessee shall deliver exclusive possession of the Premises to Lessor.For purposes of this provision and Paragraph 13.1(a),exclusive possession shall mean that Lessee shall have vacated the Premises,removed all of its personal property therefrom and that the Premises have been returned in the condiƟon specified in this Lease.In the event that Lessee does not deliver exclusive possession to Lessor as specified above,then Lessor's damages during any holdover period shall be computed at the amount of the Rent (as defined in Paragraph 4.1)due during the last full month before the expiraƟon or terminaƟon of this Lease (disregarding any temporary abatement of Rent that may have been in effect),but with Base Rent being 150%of the Base Rent payable during such last full month.Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee. 27.CumulaƟve Remedies.No remedy or elecƟon hereunder shall be deemed exclusive but shall,wherever possible,be cumulaƟve with all other remedies at law or in equity. 28.Covenants and CondiƟons;ConstrucƟon of Agreement.All provisions of this Lease to be observed or performed by Lessee are both covenants and condiƟons. In construing this Lease,all headings and Ɵtles are for the convenience of the ParƟes only and shall not be considered a part of this Lease.Whenever required by the context,the singular shall include the plural and vice versa.This Lease shall not be construed as if prepared by one of the ParƟes,but rather according to its fair meaning as a whole,as if both ParƟes had prepared it. 29.Binding Effect;Choice of Law.This Lease shall be binding upon the ParƟes,their personal representaƟves,successors and assigns and be governed by the laws of the State in which the Premises are located.Any liƟgaƟon between the ParƟes hereto concerning this Lease shall be iniƟated in the county in which the Premises are located.Signatures to this Lease accomplished by means of electronic signature or similar technology shall be legal and binding. 30.SubordinaƟon;AƩornment;Non-Disturbance. 30.1 SubordinaƟon.This Lease and any OpƟon granted hereby shall be subject and subordinate to any ground lease,mortgage,deed of trust,or other hypothecaƟon or security device (collecƟvely,"Security Device"),now or hereaŌer placed upon the Premises,to any and all advances made on the security thereof, and to all renewals,modificaƟons,and extensions thereof.Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Lender") shall have no liability or obligaƟon to perform any of the obligaƟons of Lessor under this Lease.Any Lender may elect to have this Lease and/or any OpƟon granted hereby superior to the lien of its Security Device by giving wriƩen noƟce thereof to Lessee,whereupon this Lease and such OpƟons shall be deemed prior to such Security Device,notwithstanding the relaƟve dates of the documentaƟon or recordaƟon thereof. 30.2 AƩornment.In the event that Lessor transfers Ɵtle to the Premises,or the Premises are acquired by another upon the foreclosure or terminaƟon of a Security Device to which this Lease is subordinated (i)Lessee shall,subject to the non-disturbance provisions of Paragraph 30.3,aƩorn to such new owner,and upon Page 199 of 350 request,enter into a new lease,containing all of the terms and provisions of this Lease,with such new owner for the remainder of the term hereof,or,at the elecƟon of the new owner,this Lease will automaƟcally become a new lease between Lessee and such new owner,for the remainder of the term hereof and (ii)Lessor shall thereaŌer be relieved of any further obligaƟons hereunder and such new owner shall assume all of Lessor's obligaƟons,except that such new owner shall not:(a)be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisiƟon of ownership;(b)be subject to any offsets or defenses which Lessee might have against any prior lessor,(c)be bound by prepayment of more than one month's rent,or (d)be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner. 30.3 Non-Disturbance.With respect to Security Devices entered into by Lessor aŌer the execuƟon of this Lease,Lessee's subordinaƟon of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a "Non-Disturbance Agreement")from the Lender which Non-Disturbance Agreement provides that Lessee's possession of the Premises,and this Lease,including any opƟons to extend the term hereof,will not be disturbed so long as Lessee is not in Breach hereof and aƩorns to the record owner of the Premises.Further,within 60 days aŌer the execuƟon of this Lease,Lessor shall,if requested by Lessee,use its commercially reasonable efforts to obtain a Non-Disturbance Agreement from the holder of any pre-exisƟng Security Device which is secured by the Premises.In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days,then Lessee may,at Lessee's opƟon,directly contact Lender and aƩempt to negoƟate for the execuƟon and delivery of a Non-Disturbance Agreement. 30.4 Self-ExecuƟng.The agreements contained in this Paragraph 30 shall be effecƟve without the execuƟon of any further documents;provided,however,that, upon wriƩen request from Lessor or a Lender in connecƟon with a sale,financing or refinancing of the Premises,Lessee and Lessor shall execute such further wriƟngs as may be reasonably required to separately document any subordinaƟon,aƩornment and/or Non-Disturbance Agreement provided for herein. 31.AƩorneys'Fees.If any Party or Broker brings an acƟon or proceeding involving the Premises whether founded in tort,contract or equity,or to declare rights hereunder,the Prevailing Party (as hereaŌer defined)in any such proceeding,acƟon,or appeal thereon,shall be enƟtled to reasonable aƩorneys'fees.Such fees may be awarded in the same suit or recovered in a separate suit,whether or not such acƟon or proceeding is pursued to decision or judgment.The term,"Prevailing Party"shall include,without limitaƟon,a Party or Broker who substanƟally obtains or defeats the relief sought,as the case may be,whether by compromise, seƩlement,judgment,or the abandonment by the other Party or Broker of its claim or defense.The aƩorneys'fees award shall not be computed in accordance with any court fee schedule,but shall be such as to fully reimburse all aƩorneys'fees reasonably incurred.In addiƟon,Lessor shall be enƟtled to aƩorneys'fees,costs and expenses incurred in the preparaƟon and service of noƟces of Default and consultaƟons in connecƟon therewith,whether or not a legal acƟon is subsequently commenced in connecƟon with such Default or resulƟng Breach ($200 is a reasonable minimum per occurrence for such services and consultaƟon). 32.Lessor's Access;Showing Premises;Repairs.Lessor and Lessor's agents shall have the right to enter the Premises at any Ɵme,in the case of an emergency,and otherwise at reasonable Ɵmes aŌer reasonable prior noƟce for the purpose of showing the same to prospecƟve purchasers,lenders,or tenants,and making such alteraƟons,repairs,improvements or addiƟons to the Premises as Lessor may deem necessary or desirable and the erecƟng,using and maintaining of uƟliƟes, services,pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee's use of the Premises.All such acƟviƟes shall be without abatement of rent or liability to Lessee. 33.AucƟons.Lessee shall not conduct,nor permit to be conducted,any aucƟon upon the Premises without Lessor's prior wriƩen consent.Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an aucƟon. 34.Signs.Lessor may place on the Premises ordinary "For Sale"signs at any Ɵme and ordinary "For Lease"signs during the last 6 months of the term hereof.Except for ordinary "For Sublease"signs which may be placed only on the Premises,Lessee shall not place any sign upon the Project without Lessor's prior wriƩen consent. All signs must comply with all Applicable Requirements. 35.TerminaƟon;Merger.Unless specifically stated otherwise in wriƟng by Lessor,the voluntary or other surrender of this Lease by Lessee,the mutual terminaƟon or cancellaƟon hereof,or a terminaƟon hereof by Lessor for Breach by Lessee,shall automaƟcally terminate any sublease or lesser estate in the Premises;provided, however,that Lessor may elect to conƟnue any one or all exisƟng subtenancies.Lessor's failure within 10 days following any such event to elect to the contrary by wriƩen noƟce to the holder of any such lesser interest,shall consƟtute Lessor's elecƟon to have such event consƟtute the terminaƟon of such interest. 36.Consents.All requests for consent shall be in wriƟng.Except as otherwise provided herein,wherever in this Lease the consent of a Party is required to an act by or for the other Party,such consent shall not be unreasonably withheld or delayed.Lessor's actual reasonable costs and expenses (including but not limited to architects',aƩorneys',engineers'and other consultants'fees)incurred in the consideraƟon of,or response to,a request by Lessee for any Lessor consent,including but not limited to consents to an assignment,a subleƫng or the presence or use of a Hazardous Substance,shall be paid by Lessee upon receipt of an invoice and supporƟng documentaƟon therefor.Lessor's consent to any act,assignment or subleƫng shall not consƟtute an acknowledgment that no Default or Breach by Lessee of this Lease exists,nor shall such consent be deemed a waiver of any then exisƟng Default or Breach,except as may be otherwise specifically stated in wriƟng by Lessor at the Ɵme of such consent.The failure to specify herein any parƟcular condiƟon to Lessor's consent shall not preclude the imposiƟon by Lessor at the Ɵme of consent of such further or other condiƟons as are then reasonable with reference to the parƟcular maƩer for which consent is being given.In the event that either Party disagrees with any determinaƟon made by the other hereunder and reasonably requests the reasons for such determinaƟon,the determining party shall furnish its reasons in wriƟng and in reasonable detail within 10 business days following such request. 37.Guarantor. 37.1 ExecuƟon.The Guarantors,if any,shall each execute a guaranty in the form most recently published by AIR CRE. 37.2 Default.It shall consƟtute a Default of the Lessee if any Guarantor fails or refuses,upon request to provide:(a)evidence of the execuƟon of the guaranty, including the authority of the party signing on Guarantor's behalf to obligate Guarantor,and in the case of a corporate Guarantor,a cerƟfied copy of a resoluƟon of its board of directors authorizing the making of such guaranty,(b)current financial statements,(c)an Estoppel CerƟficate,or (d)wriƩen confirmaƟon that the guaranty is sƟll in effect. 38.Quiet Possession.Subject to payment by Lessee of the Rent and performance of all of the covenants,condiƟons and provisions on Lessee's part to be observed and performed under this Lease,Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof. 39.OpƟons.If Lessee is granted any OpƟon,as defined below,then the following provisions shall apply. 39.1 DefiniƟon."OpƟon"shall mean:(a)the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor;(b)the right of first refusal or first offer to lease either the Premises or other property of Lessor;(c)the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor. 39.2 OpƟons Personal To Original Lessee.Any OpƟon granted to Lessee in this Lease is personal to the original Lessee,and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and,if requested by Lessor,with Lessee cerƟfying that Page 200 of 350 Lessee has no intenƟon of thereaŌer assigning or subleƫng. 39.3 MulƟple OpƟons.In the event that Lessee has any mulƟple OpƟons to extend or renew this Lease,a later OpƟon cannot be exercised unless the prior OpƟons have been validly exercised. 39.4 Effect of Default on OpƟons. (a)Lessee shall have no right to exercise an OpƟon:(i)during the period commencing with the giving of any noƟce of Default and conƟnuing unƟl said Default is cured,(ii)during the period of Ɵme any Rent is unpaid (without regard to whether noƟce thereof is given Lessee),(iii)during the Ɵme Lessee is in Breach of this Lease,or (iv)in the event that Lessee has been given 3 or more noƟces of separate Default,whether or not the Defaults are cured,during the 12 month period immediately preceding the exercise of the OpƟon. (b)The period of Ɵme within which an OpƟon may be exercised shall not be extended or enlarged by reason of Lessee's inability to exercise an OpƟon because of the provisions of Paragraph 39.4(a). (c)An OpƟon shall terminate and be of no further force or effect,notwithstanding Lessee's due and Ɵmely exercise of the OpƟon,if,aŌer such exercise and prior to the commencement of the extended term or compleƟon of the purchase,(i)Lessee fails to pay Rent for a period of 30 days aŌer such Rent becomes due (without any necessity of Lessor to give noƟce thereof),or (ii)if Lessee commits a Breach of this Lease. 40.Security Measures.Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures,and that Lessor shall have no obligaƟon whatsoever to provide same.Lessee assumes all responsibility for the protecƟon of the Premises,Lessee,its agents and invitees and their property from the acts of third parƟes. 41.ReservaƟons.Lessor reserves the right:(i)to grant,without the consent or joinder of Lessee,such easements,rights and dedicaƟons that Lessor deems necessary;(ii)to cause the recordaƟon of parcel maps and restricƟons;and (iii)to create and/or install new uƟlity raceways,so long as such easements,rights, dedicaƟons,maps,restricƟons,and uƟlity raceways do not unreasonably interfere with the use of the Premises by Lessee.Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights. 42.Performance Under Protest.If at any Ɵme a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof,the Party against whom the obligaƟon to pay the money is asserted shall have the right to make payment "under protest"and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to insƟtute suit for recovery of such sum.If it shall be adjudged that there was no legal obligaƟon on the part of said Party to pay such sum or any part thereof,said Party shall be enƟtled to recover such sum or so much thereof as it was not legally required to pay.A Party who does not iniƟate suit for the recovery of sums paid "under protest"within 6 months shall be deemed to have waived its right to protest such payment. 43.Authority;MulƟple ParƟes;ExecuƟon. (a)If either Party hereto is a corporaƟon,trust,limited liability company,partnership,or similar enƟty,each individual execuƟng this Lease on behalf of such enƟty represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf.Each Party shall,within 30 days aŌer request, deliver to the other Party saƟsfactory evidence of such authority. (b)If this Lease is executed by more than one person or enƟty as "Lessee",each such person or enƟty shall be jointly and severally liable hereunder.It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease,or other document ancillary thereto and bind all of the named Lessees,and Lessor may rely on the same as if all of the named Lessees had executed such document. (c)This Lease may be executed by the ParƟes in counterparts,each of which shall be deemed an original and all of which together shall consƟtute one and the same instrument. 44.Conflict.Any conflict between the printed provisions of this Lease and the typewriƩen or handwriƩen provisions shall be controlled by the typewriƩen or handwriƩen provisions. 45.Offer.PreparaƟon of this Lease by either party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party.This Lease is not intended to be binding unƟl executed and delivered by all ParƟes hereto. 46.Amendments.This Lease may be modified only in wriƟng,signed by the ParƟes in interest at the Ɵme of the modificaƟon.As long as they do not materially change Lessee's obligaƟons hereunder,Lessee agrees to make such reasonable non-monetary modificaƟons to this Lease as may be reasonably required by a Lender in connecƟon with the obtaining of normal financing or refinancing of the Premises. 47.Waiver of Jury Trial.THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT. 48.ArbitraƟon of Disputes.An Addendum requiring the ArbitraƟon of all disputes between the ParƟes and/or Brokers arising out of this Lease is is not aƩached to this Lease. 49.Accessibility;Americans with DisabiliƟes Act. (a)The Premises: have not undergone an inspecƟon by a CerƟfied Access Specialist (CASp).Note:A CerƟfied Access Specialist (CASp)can inspect the subject premises and determine whether the subject premises comply with all of the applicable construcƟon-related accessibility standards under state law.Although state law does not require a CASp inspecƟon of the subject premises,the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspecƟon of the subject premises for the occupancy or potenƟal occupancy of the lessee or tenant,if requested by the lessee or tenant.The parƟes shall mutually agree on the arrangements for the Ɵme and manner of the CASp inspecƟon,the payment of the fee for the CASp inspecƟon,and the cost of making any repairs necessary to correct violaƟons of construcƟon-related accessibility standards within the premises. have undergone an inspecƟon by a CerƟfied Access Specialist (CASp)and it was determined that the Premises met all applicable construcƟon-related accessibility standards pursuant to California Civil Code §55.51 et seq.Lessee acknowledges that it received a copy of the inspecƟon report at least 48 hours prior to execuƟng this Lease and agrees to keep such report confidenƟal. have undergone an inspecƟon by a CerƟfied Access Specialist (CASp)and it was determined that the Premises did not meet all applicable construcƟon-related accessibility standards pursuant to California Civil Code §55.51 et seq.Lessee acknowledges that it received a copy of the inspecƟon report at least 48 hours prior to Page 201 of 350 execuƟng this Lease and agrees to keep such report confidenƟal except as necessary to complete repairs and correcƟons of violaƟons of construcƟon related accessibility standards. In the event that the Premises have been issued an inspecƟon report by a CASp the Lessor shall provide a copy of the disability access inspecƟon cerƟficate to Lessee within 7 days of the execuƟon of this Lease. (b)Since compliance with the Americans with DisabiliƟes Act (ADA)and other state and local accessibility statutes are dependent upon Lessee's specific use of the Premises,Lessor makes no warranty or representaƟon as to whether or not the Premises comply with ADA or any similar legislaƟon.In the event that Lessee's use of the Premises requires modificaƟons or addiƟons to the Premises in order to be in compliance with ADA or other accessibility statutes,Lessee agrees to make any such necessary modificaƟons and/or addiƟons at Lessee's expense. LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN,AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO.THE PARTIES HEREBY AGREE THAT,AT THE TIME THIS LEASE IS EXECUTED,THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. ATTENTION:NO REPRESENTATION OR RECOMMENDATION IS MADE BY AIR CRE OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY,LEGAL EFFECT,OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES.THE PARTIES ARE URGED TO: 1.SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. 2.RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES.SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO:THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES,THE ZONING OF THE PREMISES,THE STRUCTURAL INTEGRITY,THE CONDITION OF THE ROOF AND OPERATING SYSTEMS,COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE. WARNING:IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA,CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED. The parƟes hereto have executed this Lease at the place and on the dates specified above their respecƟve signatures. Executed at: On: By LESSOR: 4th Street Industrial Park LLC By: Name Printed:William Persall Title:Owner Phone:760.333.1535 Fax: Email:ashley@persallconsulting.com By: Name Printed: Title: Phone: Fax: Email: Address: Federal ID No.: Executed at: On: By LESSEE: City of Beaumont By: Name Printed: Title: Phone: Fax: Email: By: Name Printed: Title: Phone: Fax: Email: Address: Federal ID No.: BROKER N/A AƩn:N/A Title: Address: Phone: Fax: Email: Federal ID No.: Broker DRE License #: Agent DRE License #: BROKER N/A AƩn:N/A Title: Address: Phone: Fax: Email: Federal ID No.: Broker DRE License #: Agent DRE License #: AIR CRE *hƩps://www.aircre.com *213-687-8777 *contracts@aircre.com NOTICE:No part of these works may be reproduced in any form without permission in wriƟng. Page 202 of 350 ADDENDUM TO LEASE Date:April 5,2023 By and Between Lessor:4th Street Industrial Park LLC Lessee:City of Beaumont Property Address:252 W 4th Street Unit "E"Beaumont CA 92223 (street address,city,state,zip) Paragraph:Page 2-2.3 Compliance-does not apply to lease 2.3 -A Remove clause to cancel lease due to Capital expenditure -doesn't apply to lease Page 3 -2.9 Acknowledgments - Page 3 -3.3-Terms - Page 3 -4.2 Rent A thru E-doesn't not apply to lease Page 5 Hazardous Substance D thru E -doesn't apply to lease Page 6 -6.4 Inspection Compliance Page 6 -7.1 Maintenance Repair -(A)-Lessor is responsible for the service of HVAC equipment (B)doesn't apply to lease Page 7 -7.4 Ownership;Removal;Surrender and Restoration -doesn't apply to lease Page 7 &8 -8.4 Property Damage (B)doesn't apply to lease Page 8 -8.5 thru 8.9 Insurance Policies -City of Beaumont is self insured (City of Beaumont (JPIA) Page 9 10.2 Real Property Tax -doesn't apply to lease Page 10 -11.1 Utilities and Services -refer to 1.12 of lease under attachment (other) Page 11-(13)D Default;Breach;Remedies -doesn't apply to lease Page 12,13,14 -Brokerage Fees -doesn't apply to lease Page 15 -37.1 and 37.2 Guarantor -doesn't apply to lease In the event of any conflict between the provisions of this Addendum and the printed provisions of the Lease,this Addendum shall control. AIR CRE *hƩps://www.aircre.com *213-687-8777 *contracts@aircre.com NOTICE:No part of these works may be reproduced in any form without permission in wriƟng. Page 203 of 350 Staff Report TO: City Council FROM: Jeff Hart, Public Works Director DATE April 18, 2023 SUBJECT: Public Hearing to Consider an Approval of a Third Amendment to the City’s FY22/23-FY26/27 Capital Improvement Plan Description Amendments include City-Wide Traffic Signal Upgrade (R-13) and Pennsylvania Widening (2017-009). Background and Analysis: On June 21, 2022, City Council, by resolution, adopted the City’s 5-year capital improvement plan (CIP) and approved the FY22/23 CIP budget. The plan identifies the City’s planned projects through a determined period of time, as well as the prospective financial sources. On November 1, 2023, City Council approved the first amendment to the FY23 -27 CIP. The first amendment included the following projects: Project Number Project Name 2017-009 Pennsylvania Widening Project 2017-001 Pennsylvania Interchange Project P-16 Shadow Creek Playground Rehab P-17 Master Park Plan - Citywide PS-04 Public Safety Radio System Upgrade T-16 New Vehicle Communications PS-02 Police Station Renovations PS-05 Fire Truck Purchase P-04 Sports Park Lighting and Field Expansion R-12 2nd Street Extension 2017-012 Pennsylvania Ave/UPR Grade Separation R-19 Downtown Street Light Replacement R-20 City-Wide Monument Program R-21 6th Street Medians R-22 Public Works Corp Yard Page 204 of 350 CD-03 Downtown Revitalization/Grace Bldg/Real Estate Acquisition CD-04 Zoning code update and citywide design guidelines R-23 City-Wide Traffic Analysis R-18 Mid Year Street Enhancement Program 2022 On February 21, 2023, City Council approved the second amendment to the FY23 -27 CIP. The second amendment included the following projects: Project Number Project Name 2016-003 Potrero Interchange Phase 1 &2 Project 2019-013 Wastewater Master Plan 2019-018 PLC Upgrade Design CD-01 Housing Code Updates CD-05 Climate Action Plan F-01 City Hall Landscaping and Painting ISFB-05 Fire Station 66 HVAC ISFB-06 Police Station HVAC ISFB-11 VFW Roof P-01 Stewart Park Splash Park P-02 Rangel Park Splash Park P-03 Nicklaus Park Splash Park P-06 Sports Park Support Building for Leagues P-07 Nicklaus Park Support Buildings for Leagues P-08 Nicklaus Park Skate Park P-11 Rangel Park Ball Field Lights, Electrical & Play P-12 Playground Shade Covers Phase 2 P-13 Three Rings Ranch Park Improvements P-16 Shadow Creek Park Playground Rehab PS-01 New Police Station Feasibility Study PS-08 PD Restroom Modular R-03 Annual Slurry Seal 20/21 R-04 Annual Citywide Street Rehab 20/21 R-06 2021 Mid-Year Street Enhancement R-08 Annual Citywide Street Rehab and Maintenance 21/22 R-09 Annual Citywide Street Rehab and Maintenance 21/22 R-10 Citywide Street Improvements 21/22 Page 205 of 350 R-14 Annual Citywide Street Rehab and Maintenance 22/23 R-15 Annual Citywide Street Rehab and Maintenance 22/23 R-16 Citywide Street Improvements 22/23 R-18 Mid-Year Street Enhancement Program 22/23 R-24 2023 Citywide Street Rehabilitation and Maintenance The Third Amendment to the FY19/20-FY23/24 CIP (Attachment B) consist of the following changes:  R-13 Citywide Traffic Signal Upgrade – Project amended to include additional funding allocated from the City’s Traffic Signal DIF. On March 24, 2023, the City received bids for the construction of the Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue. The cost for construction exceeded the existing budget by approximately $74,400. Additionally, City staff is pursing bids to install a protective/permissive left turn lane at Cougar Avenue and Beaumont Avenue. The estimated cost of construction is ~$50,000. Budget Change New Budget $150,000 $124,400 $274,400  2017-009 Pennsylvania Avenue Widening – Project amended to include additional funding allocated from the City’s Traffic Signal DIF. City staff received an estimate for design and construction of a new traffic signal at First Street and Pennsylvania Avenue. City staff recommends including the new traffic signal as part of the construction scope for Pennsylvania Avenue Widening (2017-009) to reduce cost and time (Strategic Plan Level 3, Target 2, Goal). Budget Change New Budget $10,542,600 $430,000 $10,972,600 Fiscal Impact: The estimated cost to prepare this staff report is $350. A budget amendment will be presented to formally appropriate the additional funds for the projects. Recommended Action: Hold a Public Hearing, and Page 206 of 350 Waive the full reading and approve by title only, "Resolution of the City Council of Beaumont Amending the Five-Year Capital Improvement Plan for Fiscal Years 2022/2023-2026/2027.” Attachments: A. Resolution CIP Amendment 3 B. FY2022/2023-2026/20277 Capital Improvement Plan C. Public Notice Page 207 of 350 1 RESOLUTION NO. _______ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BEAUMONT AMENDING THE FIVE-YEAR CAPITAL IMPROVEMENT PLAN FOR FISCAL YEARS 2022/2023-2026/2027 WHEREAS, on June 21, 2022, the City Council of the City of Beaumont adopted the City’s Five Year Capital Improvement Plan for Fiscal Years 2023/2024 through 2026/2027 (“CIP”) at a duly noticed public hearing; and WHEREAS, on November 1, 2022, the City Council of the City of Beaumont amended (Amendment No. 1) the City’s Five Year Capital Improvement Plan for Fiscal Years 2023/2024 through 2026/2027 (“CIP”) at a duly noticed public hearing; and WHEREAS, on February 21, 2023, the City Council of the City of Beaumont amended (Amendment No. 2) the City’s Five Year Capital Improvement Plan for Fiscal Years 2023/2024 through 2026/2027 (“CIP”) at a duly noticed public hearing; and WHEREAS, these specific revisions are detailed in Exhibit “A” attached hereto; and WHEREAS, pursuant to Government Code, section 66002, the City duly gave public notice of the public hearing of the proposed amendments and revisions to the CIP, a copy of which has been on file with the City Clerk Board at least 10 calendar days prior to the City Council’s commencement of such public hearing; and WHEREAS, the City Council desires to revise and amend the Capital Improvement Plan as set forth herein; NOW, THEREFORE BE IT RESOLVED BY THE BEAUMONT CITY COUNCIL AS FOLLOWS: Section 1. The City Council hereby approves and amends the Capital Improvement Plan for Fiscal Years 2022/2023 through 2026/2027, a copy of which is attached hereto as Exhibit “A” and made a part hereof by this reference. Section 2. The Capital Improvement Plan may be updated by the City Council from time to time pursuant to California Government Code, section 66002, or as otherwise provided by law. Section 3. This Resolution shall take effect immediately upon its passage and adoption. MOVED, PASSED, and ADOPTED this 18th day of April , 202 3 , by the following vote: Page 208 of 350 2 AYES: NOES: ABSTAIN: ABSENT: By: Julio Martinez III, Mayor City of Beaumont ATTEST: By: Nicole Wheelwright Deputy City Clerk Page 209 of 350 3 EXHIBIT A SUMMARY OF 2019/2020 – 2023/2024 CIP BUDGET AMENDMENT Page 210 of 350 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL TOTAL $ - $ - $ - $ - $ - $ - $ - Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL New City Hall 18,000,000$ 18,000,000$ TOTAL $ - $ - $ - $ - $ - $ 18,000,000 $ 18,000,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL 2nd Street Extension Construction R-12 1,500,000$ 1,300,000$ 2,800,000$ 1st Street Widening Penn to Beaumont Ave Design & Construction 1,600,000$ 1,600,000$ Pennsylvania Widening 2017-009 1,200,000$ 1,200,000$ Pennsylvania Avenue/Ramp Additions 2017-001 2,800,000$ 2,800,000$ TOTAL $ 5,500,000 $ 1,300,000 $ - $ - $ - $ 1,600,000 $ 8,400,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Citywide Traffic Signal Upgrade & Capacity Improvement Phase 3 R-13 274,400$ 274,400$ Citywide Traffic Signal Upgrade & Capacity Improvement Phase 4 150,000$ 150,000$ Citywide Traffic Signal Upgrade & Capacity Improvement Phase 5 150,000$ 150,000$ Pennsylvania Widening 2017-009 430,000$ 430,000$ TOTAL $ 704,400 $ 150,000 $ 150,000 $ - $ - $ - $ 1,004,400 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL -$ TOTAL $ - $ - $ - $ - $ - $ - $ - Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL -$ -$ TOTAL $ - $ - $ - $ - $ - $ - $ - Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL -$ -$ TOTAL $ - $ - $ - $ - $ - $ - $ - Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Five Year Capital Improvement Plan FY 23-27 Funding Source: TUMF Funding Source: Basic Services DIF Funding Source: Road & Bridge DIF Funding Source: Traffic Signal DIF Funding Source: Community Park DIF Funding Source: Neighborhood Park DIF Funding Source: Recreation Facilities DIF Funding Source: Regional Park DIF Page 211 of 350 -$ -$ TOTAL $ - $ - $ - $ - $ - $ - $ - Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL TOTAL $ - $ - $ - $ - $ - $ - $ - Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Building C Renovation PS-06 750,000$ 750,000$ New Police Station Design PS-07 797,372$ 797,372$ TOTAL $ 1,547,372 $ - $ - $ - $ - $ - $ 1,547,372 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL -$ -$ -$ -$ -$ -$ $ - Funding Source: CFD Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL New Police Station Design PS-07 $ 1,300,000 $ 1,500,000 2,800,000$ PD Restroom Modular PS-08 150,000$ 150,000$ Shadow Creek Park Playground Rehab P-16 450,000$ 450,000$ Master Park Plan - Citywide P-17 250,000$ 250,000$ TOTAL $ 2,150,000 $ 1,500,000 $ - $ - $ - $ - $ 3,650,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Annual Citywide Street Rehabilitation and Maintenance 23/24 $ 616,800 $ 616,800 Annual Citywide Street Rehabilitation and Maintenance 24/25 $ 629,200 $ 629,200 Annual Citywide Street Rehabilitation and Maintenance 25/26 $ 641,600 $ 641,600 Annual Citywide Street Rehabilitation and Maintenance 26/27 $ 654,400 $ 654,400 2023 Citywide Street Rehabilitation and Maintenance R-24 $ 1,641,210 $ 1,641,210 TOTAL $ 1,641,210 $ 616,800 $ 629,200 $ 641,600 $ 654,400 $ - $ 4,183,210 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Annual Citywide Street Rehabilitation and Maintenance 23/24 $ 900,840 $ 900,840 Annual Citywide Street Rehabilitation and Maintenance 24/25 $ 898,837 $ 898,837 Annual Citywide Street Rehabilitation and Maintenance 25/26 $ 908,101 $ 908,101 Annual Citywide Street Rehabilitation and Maintenance 26/27 $ 916,000 $ 916,000 2023 Citywide Street Rehabilitation and Maintenance R-24 $ 1,117,898 $ 1,117,898 TOTAL $ 1,117,898 $ 900,840 $ 898,837 $ 908,101 $ 916,000 $ - $ 4,741,676 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Pennsylvania Ave/UPRR Grade Separation - Construction 40,000,000$ 40,000,000$ Funding Source: Measure A Funding Source: Public Safety CFD Funding Source: Fire Station DIF Funding Source: Police Facilities Mitigation DIF Funding Source: RMRA/SB 1 Funding Source: Grants Page 212 of 350 California Ave/UPRR Grade Separation - Construction 34,000,000$ 34,000,000$ Oak Valley/I-10 Interchange - Construction 65,000,000$ 65,000,000$ Public Safety Radio System Upgrade PS-04 112,000$ 112,000$ TOTAL $ 112,000 $ - $ - $ - $ - $ 139,000,000 $ 139,112,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Bus Prediction Platform T-11 260,000$ 260,000$ 2-Electric Support Vehicles T-12 80,000$ 80,000$ Shop Truck T-13 150,000$ 150,000$ Microtransit Feasability Analysis T-14 100,000$ 100,000$ 2-EZ Rider ll Buses T-15 1,700,000$ 1,700,000$ New Vehicle Communications T-16 57,498$ 57,498$ TOTAL $ 2,347,498 $ - $ - $ - $ - $ - $ 2,347,498 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Potrero Interchange- Phase 1 & 2 2016-003 1,500,000$ 3,250,000$ 4,750,000$ TOTAL $ 1,500,000 $ 3,250,000 $ - $ - $ - $ - $ 4,750,000 Funding Source: CDBG Grants Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL 2023 Citywide Street Rehabilitation and Maintenance R-24 $ 503,086 $ 503,086 Citywide Street Improvements 23/24 - CDBG $ 130,000 $ 130,000 Citywide Street Improvements 24/25 - CDBG $ 130,000 $ 130,000 Citywide Street Improvements 25/26- CDBG 130,000$ $ 130,000 Citywide Street Improvements 26/27- CDBG 130,000$ $ 130,000 TOTAL $ 503,086 $ 130,000 $ 130,000 $ 130,000 $ 130,000 $ - $ 1,023,086 Funding Source: General Fund Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Police Station Renovations PS-02 175,000$ 175,000$ Pennsylvania Widening 2017-009 4,000,000$ 4,000,000$ Fire Truck Purchase PS-05 400,000$ 400,000$ Sports Park Field Lighting and Field Expansion P-04 5,019,884$ 5,019,884$ 2nd Street Extension Construction R-12 500,000$ 500,000$ Pennsylvania Ave/UPR Grade Seperation 2017-012 1,000,000$ 1,000,000$ Downtown Street Light Replacement R-19 1,000,000$ 1,000,000$ City-Wide Monument Program (Street & Parks)R-20 2,000,000$ 2,000,000$ 6th Street Medians R-21 2,000,000$ 2,000,000$ Public Works Corp Yard R-22 1,000,000$ 1,000,000$ Downtown Revitalization/Grace Bldg/Real Estate Acquisition CD-03 5,000,000$ 5,000,000$ Zoning code update and citywide design guidelines CD-04 350,000$ 350,000$ City-Wide Traffic Analysis R-23 250,000$ 250,000$ Climate Action Plan CD-05 350,000$ 350,000$ 2023 Citywide Street Rehabilitation and Maintenance R-24 3,101,170$ 3,101,170$ Sundance Detention Basin Concrete Replacement 700,000$ 700,000$ Michigan Ave Storm Drain Culvert Crossing R-17 30,200$ 30,200$ Memorial Park Plaza P-14 1,750,000$ 1,750,000$ Memorial Park Plaza Cameras P-15 50,000$ 50,000$ Funding Source: Transit Grants Funding Source: Pass Zone TIP Page 213 of 350 Public Safety Radio System Upgrade PS-04 544,005$ 344,479$ 888,484$ 3rd St to California Ave Storm Drain 650,000$ 650,000$ Pavement Management Study 250,000$ 250,000$ Mid Year Street Enhancement Program 2023 925,200$ 925,200$ Mid Year Street Enhancement Program 2024 943,800$ 943,800$ Mid Year Street Enhancement Program 2025 962,400$ 962,400$ Mid Year Street Enhancement Program 2026 981,600$ 981,600$ Storm Drain Facilities $ 1,000,000 $ 1,000,000 Storm Drain Master Plan $ 500,000 $ 500,000 Parking Garage Facility - Downtown $ 10,000,000 $ 10,000,000 TOTAL $ 28,520,259 $ 2,169,679 $ 1,643,800 $ 962,400 $ 981,600 $ 11,500,000 $ 45,777,738 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL I&I Rehabilitation Project - Phase 3 200,000$ 200,000$ 4th Street Manhole Replacement WW-06 200,000$ 200,000$ Oak Valley Lift Station Access Point WW-07 210,000$ 210,000$ Vactor Dump Station WW-08 450,000$ 450,000$ UV Bulb Replacement 50,000$ 50,000$ 50,000$ 150,000$ RO Module Replacement 300,000$ 300,000$ TOTAL $ 860,000 $ 250,000 $ 50,000 $ 350,000 $ - $ - $ 1,510,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL 16" Mesa Force Main Construction WW-09 2,000,000$ 2,000,000$ 4,000,000$ Mesa Lift Station Pump Capacity Enhancement Construction WW-10 750,000$ 750,000$ Mesa Lift Station - Construction WW-11 900,000$ 700,000$ 1,600,000$ TOTAL $ 3,650,000 $ 2,700,000 $ - $ - $ - $ - $ 6,350,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Mesa Lift Station - Construction WW-11 100,000$ 2,300,000$ 2,400,000$ TOTAL $ 100,000 $ 2,300,000 $ - $ - $ - $ - $ 2,400,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Grace Roof Remove & Replace ISFB-10 350,000$ 350,000$ VFW Re-Roof ISFB-11 175,000$ 175,000$ -$ -$ TOTAL $ 525,000 $ - $ - $ - $ - $ - $ 525,000 Project Name Project Number FY22/23 FY23/24 FY24/25 FY25/26 FY26/27 Future Funding TOTAL Lift Station Spare Pump Program ISFWW-01 300,000$ 300,000$ VFD ISFWW-02 250,000$ 250,000$ -$ -$ TOTAL $ 550,000 $ - $ - $ - $ - $ - $ 550,000 Funding Source: State and Local Fiscal Recovery Funds Program Funding Source: WW Internal Service Fund-Repair and Replacement Funding Source: Wastewater DIF Funding Source: Internal Service Fund Funding Source: Wastewater Page 214 of 350 Streets/ Roads R Parks P Public Safety PS FY22/23 Total 5 Year CIP Total Community Development CD 51,328,723$ 245,871,980$ Transit T Wastewater WW Facilities F Internal Service Fund - Buildings ISFB Internal Service Fund - Wastewater ISFWW Page 215 of 350 NOTICE IS HEREBY GIVEN that the City of Beaumont will conduct a Public Hearing for revisions to the approved Capital Improvement Project Plan for FYs 2023-2027.On April 18, 2023, at approximately 6:00 p.m. at the City of Beaumont Council meeting, to be held at the City of Beaumont Civic Center, 550 E 6th Street, Beaumont, Ca 92223, the Council will conduct a public hearing to receive testimony and comments from all interested persons. Public comments can be made using the public comment phone line or by written email. Phone-in comments will be accepted by calling the designated public comment phone line (951) 922-4845 prior to the corresponding item. Public comments shall not exceed three minutes unless otherwise authorized by City Council. Written comments can be emailed to NicoleW@BeaumontCa.gov Public comments accepted via email will be read aloud during the corresponding item of the meeting. Comments can be submitted anytime prior to the meeting as well as during the meeting until the end of the corresponding item.This meeting will be conducted utilizing teleconference communications and will be recorded for live streaming. All City of Beaumont public meetings will be made available via live streaming and made available on the City’s official YouTube webpage. Please use the following link during the meeting for live stream access: BeaumontCa.gov/Livestream Dated: April 4, 2023The Press-EnterprisePublished: 4/7/23 Page 216 of 350 Staff Report TO: City Council FROM: Jennifer Ustation, Finance Director DATE April 18, 2023 SUBJECT: FY2022-2023 Capital Improvement Project Budget Amendment Description Budget adjustments to add funding to capital improvement projects: R-13 Citywide Traffic Signal Update and 2017-009 Pennsylvania Avenue Widening Project. Background and Analysis: In a previous item this evening, a capital improvement project (CIP) amendment was reviewed to approve additional funding in the current fiscal year CIP. To provide the spending authority for these additional funds, it is necessary to approve a budget amendment for the possible additional funding to the CIP. This budget amendment is to add funding to two separate projects if approved by City Council in a previous item. The City’s Traffic Signal DIF is adding an additional $124,400 to Project R-13 Citywide Traffic Signal Upgrade and $430,000 to Project 2017-009 Pennsylvania Avenue Widening Project. Fiscal Impact: The fiscal impact to the City’s Traffic Signal DIF is a total of $554,400. Recommended Action: Approve the recommended budget adjustments as provided in Attachment A. Attachments: A. Budget Adjustment Form Page 217 of 350 DATE:4/18/2023DEPARTMENT NAME:Public WorksPREPARED BY:Tara AstranAPPROVED BY*Account Number for Example onlyRevenue = (Credit) Expense = DebitRevenue = (Credit) Expense = Debit Debit (Credit)ACCOUNT NUMBER ACCOUNT DESCRIPTIONCURRENT BUDGET ADJUSTMENT NEW BUDGET AMTExplanations / JustificationR‐13‐T500‐0000‐9950‐0000 Transfer In ‐ Project R‐13(48,258,364.00) (124,400.00) (48,382,764.00) Increase Traffic Signal DIF funding for R‐13 Citywide Traffic Signal2017‐009T1500‐0000‐9950‐0000 Transfer In ‐ Project 2017‐009(48,258,364.00) (430,000.00) (48,688,364.00) Increase Traffic Signal DIF funding for 2017‐009 Pennsylvania Ave Widening556‐0000‐9960‐0000Transfer Out ‐ Traffic Signal DIF150,000.00 554,400.00 704,400.00 Transfer funds to above projectsR‐13‐A500‐0000‐8990‐0000Capital Outlay ‐ Project R‐13 11,194,884.00 124,400.00 11,319,284.00 Increase project funding2017‐009A500‐0000‐8030‐0000Infrastructure Improvements ‐ Project 2017‐00930,364,635.00 430,000.00 30,794,635.00 Increase project funding‐ TOTALS554,400.00$ Net EffectCity of BeaumontBudget Adjustment FormFY 2022/2023C:\Users\justation\City of Beaumont\Finance Share ‐ Documents\Council Reports\FY2023\CIP Budget Amendment 04.18.23\Copy of Budget Adjustment Form PW Engineering: Budget Adjustment FormPage 218 of 350 Staff Report TO: City Council FROM: Jeff Hart, Public Works Director DATE April 18, 2023 SUBJECT: Award a Public Works Agreement to Elecnor Belco Electric, Inc. in an Amount Not-to Exceed $203,888 for the Construction of the Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue – Capital Improvement Project No. R-13 Description For construction of Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue. Background and Analysis: As per Beaumont Municipal Code 3.01.060, on February 27, 2023, Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue (Project) was publicly advertised soliciting construction bids for the installation of signalized protected turning movements. On March 24, 2023, three (3) bids were received and publicly opened. The following is a summary of the received bids: 1. Elecnor Belco Electric, Inc. $203,888 2. Crosstown Electric & Data, Inc. $287,863 3. DBX, Inc. $588,500 Elecnor Belco Electric, Inc. (Belco) is the apparent lowest responsive and responsible bidder. No bid challenges were received. City staff and the City Attorney have reviewed the proposed contract and bid documents and confirmed that Belco’s bid substantially conforms to the bid requirements. City staff anticipates scheduling a preconstruction meeting with Belco within ten days of contract execution. Belco has requested a procurement duration of 8-10 weeks. A Notice to Proceed (NTP) will be issued based on the verified procurement duration. Subsequently, Belco will have ten days to commence construction after the NTP is issued. Page 219 of 350 Fiscal Impact: The cost to prepare this staff report is estimated to be $750. Construction cost for the Project will be paid from the Citywide Traffic Signal Upgrade Project CIP R-13. The following table is a summary of the Project budget: R-13 Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue Project Accounting Summary Funding Summary Funding Year Funding Source Amount 22/23 Traffic Signal DIF $150,000 22/23 Traffic Signal DIF AMD No. 3 $74,400 Total Project Funding = $224,400 Budget Summary Project Component Budget Encumbered Paid to Date Remaining Budget Project Management $0 $0 $0 $0 Preliminary Services $0 $0 $0 $0 Environmental $0 $0 $0 $0 Design $0 $0 $0 $0 Construction $224,400 $0 $0 $224,400 Construction Management $0 $0 $0 $0 Permits $0 $0 $0 $0 Equipment $0 $0 $0 $0 Project Summary Totals $224,400 $0 $0 $224,400 The public works agreement with Belco for construction will be in an amount not to exceed $203,888. Staff is recommending a construction contingency of $20,512, or approximately 10% of the public works agreement, to allow for unforeseen construction changes. The total construction amount requested at this time is therefore $224,400. The construction budget will be established from the available CIP budget as sh own in the preceding table. Recommended Action: Award a public works agreement to Elecnor Belco Electric, Inc. for construction of the Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue in an amount not Page 220 of 350 to exceed $203,888; and, authorize the City Manager to sign change orders up to an additional $20,512 for a total construction amount of $224,400. Attachments: A. Public Works Agreement (Belco) Page 221 of 350 Page 1 of 13 Public Works Agreement CITY OF BEAUMONT PUBLIC WORKS AGREEMENT This PUBLIC WORKS AGREEMENT (“Agreement”) is made and effective April 4, 2023 by and between the City of Beaumont, a municipal corporation (“CITY”), and Elecnor Belco Electric, Inc. (“CONTRACTOR”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: I. SCOPE OF WORK The CONTRACTOR shall perform within the time set forth in Article 2 of this Agreement and shall furnish all labor, materials, equipment, tools, utility services, and transportation and perform and complete all work required in connection with the Citywide Traffic Signal Upgrade at First Street and Beaumont Avenue (hereinafter “Project”). CITY’s Invitation for Bids (“Invitation”) for the Project, dated February 21, 2023, and CONTRACTOR’s Bid in response to the Invitation, dated March 24, 2023, are attached hereto as Exhibits A and B, respectively and incorporated herein by this reference. The Scope of Work for the Project is set forth in the Invitation. In the event that any terms of the Bid are different from the Invitation for Bids, the Invitation for Bids shall control. Any additional terms in the Bid that purport to bind the City to any additional terms not contained in this Agreement and related attachments shall not be binding on the City. By entering into this Agreement, CONTRACTOR acknowledges that there may be other contractors on the site whose work will be coordinated with that of its own. CONTRACTOR expressly warrants and agrees that it will cooperate with other contractors and will do nothing to delay, hinder, or interfere with the work of other separate contractors, the CITY, the Construction Manager, the Engineer, or utilities. CONTRACTOR also expressly agrees that, in the event its work is hindered, delayed, interfered with, or otherwise affected by a separate contractor, its sole remedy will be a direct action against the separate contractor. To the extent allowed by law, the CONTRACTOR will have no remedy, and hereby expressly waives any remedy against the CITY, the Construction Manager (if any), and the Engineer on account of delay, hindrance, interference or other events. II. TIME FOR PROJECT COMPLETION All of CONTRACTOR’s work on the Project shall be completed within durations established for the individual activities. All work shall commence ten (10) calendar days after receiving a written Notice of Award from the CITY or Construction Manager, if a Construction Manager is employed by CITY on the Project. CONTRACTOR shall refer to the invitations for bids, and Project Plans and Specifications, all of which, as set forth below, are incorporated herein by reference, for contractual obligations regarding individual activity durations. Page 222 of 350 Page 2 of 13 Public Works Agreement III. THE CONTRACT SUM The CITY shall pay to the CONTRACTOR for the performance of this Agreement, subject to any additions and deductions provided in the Project documents, the sum of two hundred three thousand, eight hundred eighty-eight dollars ($203,888). IV. PROGRESS PAYMENTS Based upon Applications for Payment submitted to the Engineer by the CONTRACTOR and Certificates for Payment issued by the Engineer, the CITY shall make progress payments on account of the Contract Sum to the CONTRACTOR as provided in the General Conditions, which are fully incorporated into this Agreement by this reference. This Agreement is subject to the provisions of Article 1.7 (commencing at Section 20104.50) of Division 2, Part 3 of the Public Contract Code regarding prompt payment of contractors by local governments. Article 1.7 mandates certain procedures for the payment of undisputed and properly submitted payment requests within 30 days after receipt, for the review of payment requests, for notice to Contractor of improper payment requests, and provides for the payment of interest on progress payment requests which are not timely made in accordance with that Article. This Agreement hereby incorporates the provisions of Article 1.7 as though fully set forth herein. V. INDEMNITY, DEFENSE AND HOLD HARMLESS AGREEMENT CONTRACTOR shall indemnify, defend with legal counsel approved by CITY, and hold harmless CITY, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONTRACTOR’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the CITY. Should conflict of interest principles preclude a single legal counsel from representing both CITY and CONTRACTOR, or should CITY otherwise find CONTRACTOR’s legal counsel unacceptable, then CONTRACTOR shall reimburse the CITY its costs of defense, including without limitation reasonable legal counsels fees, expert fees and all other costs and fees of litigation. The CONTRACTOR shall promptly pay any final judgment rendered against the CITY (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the CONTRACTOR’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement. Page 223 of 350 Page 3 of 13 Public Works Agreement CONTRACTOR obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of CITY under any provision of this agreement, CONTRACTOR shall not be required to indemnify and hold harmless CITY for liability attributable to the active negligence of CITY, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where CITY is shown to have been actively negligent and where CITY active negligence accounts for only a percentage of the liability involved, the obligation of CONTRACTOR will be for that entire portion or percentage of liability not attributable to the active negligence of CITY. VI. PREVAILING WAGES A. Contractor shall comply with all applicable laws and regulations relating to prevailing wages. Wage rates for this Project shall be in accordance with the “General Wage Determination Made By the Director of Industrial Relations Pursuant To California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1”, for Riverside County. Wage rates shall conform with those posted at Beaumont City Hall and the Project site. B. The following Labor Code sections are hereby referenced and made a part of this Agreement: 1. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates. 2. Section 1777.4 - Apprenticeship Requirements. 3. Section 1777.5 - Apprenticeship Requirements. 4. Section 1813 - Penalty for Failure to Pay Overtime. 5. Sections 1810 and 1811 - Working Hour Restrictions. 6. Section 1775 - Payroll Records. 7. Section 1773.8 - Travel and Subsistence Pay. VII. RECORD AUDIT In accordance with Government Code, Section 8546.7, records of both the CITY and the CONTRACTOR shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment. VIII. FINAL PAYMENT Final payment, constituting the entire unpaid balance of the Agreement Sum, shall be paid by the CITY to the CONTRACTOR no sooner than thirty-five (35) days after a Notice of Completion has been recorded, unless otherwise stipulated in the Page 224 of 350 Page 4 of 13 Public Works Agreement Notice of Completion, provided the work has then been completed, the Agreement fully performed, and a final Certificate for Payment has been issued by the Engineer. IX. CONTRACTOR’S FAILURE TO PROCURE COMPLETION OF PROJECT In the event CONTRACTOR fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the work or any part thereof contemplated by this Agreement in a diligent and workmanlike manner, and if the CONTRACTOR for a period of three (3) calendar days after receipt of written demand from CITY or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said three (3) calendar days, fails to continue to do so; then the CITY may exclude the CONTRACTOR from the premises, or any portion thereof, and take possession of said premises or any portion thereof, together with all material and equipment thereon, and may complete the work contemplated by this Agreement or any portion of said work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said work, or the portion taken over by the CITY to another contractor or by a combination of such methods. In any event, the procuring of the completion of said work, or the portion thereof taken over by the CITY, shall be a charge against the CONTRACTOR, and may be deducted from any money due or becoming due to CONTRACTOR from the CITY, or the CONTRACTOR shall pay the CITY the amount of said charge, or the portion thereof unsatisfied. The sureties, provided for under this Agreement shall become liable for payment should CONTRACTOR fail to pay in full any said cost incurred by the CITY. X. INSURANCE Prior to the beginning of and throughout the duration of the Project, CONTRACTOR and its subcontractors shall maintain insurance in conformance with the requirements set forth below. Attached hereto as Exhibit C are copies of Certificates of Insurance and the waiver of subrogation endorsement as required by Section 6.B.1. CONTRACTOR will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so. CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to CONTRACTOR or its subcontractors in excess of the limits and coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to CITY. A. Types of Insurance Page 225 of 350 Page 5 of 13 Public Works Agreement Without limiting CONTRACTOR’s indemnification of CITY, and prior to commencement of Work, CONTRACTOR shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to CITY: 1. General liability insurance. CONTRACTOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. 2. Automobile liability insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONTRACTOR arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. 3. Umbrella or excess liability insurance. If CONTRACTOR is using umbrella coverage to meet part of its liability insurance requirements under Paragraph 1 of this Section, CONTRACTOR shall obtain and maintain an umbrella or excess liability insurance that will provide bodily injury, personal injury, completed operations and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions: A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason; Pay on behalf of wording as opposed to reimbursement; Concurrency of effective dates with primary policies; Policies shall “follow form” to the underlying primary policies; and Insureds under primary policies shall also be insureds under the umbrella or excess policies. 4. Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Page 226 of 350 Page 6 of 13 Public Works Agreement CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees. CONTRACTOR shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers. 5. Pollution liability insurance. Environmental Impairment Liability Insurance shall be written on a CONTRACTOR’s Pollution Liability form or other form acceptable to CITY providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites. Products/completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The CITY, its officials, officers, agents, and employees, shall be included as insureds under the policy. 6. Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only the CITY has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below. The named insureds shall be CONTRACTOR and CITY, including its officers, officials, employees, and agents. All Subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to the CITY. The CITY will act as a fiduciary for all other interests in the Project. Page 227 of 350 Page 7 of 13 Public Works Agreement Policy shall be provided for replacement value on an “all risk” basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to CITY to ensure adequacy of terms and sublimits and shall be submitted to the CITY prior to commencement of construction. B. Other provisions or requirements 1. Proof of insurance. CONTRACTOR shall provide certificates of insurance to CITY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by CITY’s risk manager prior to commencement of performance. Current certification of insurance shall be kept on file with CITY at all times during the term of this contract. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. 2. Duration of coverage. CONTRACTOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors. CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. CITY and its officers, officials, employees, and agents shall continue as additional insureds under such policies. 3. Primary/noncontributing. Coverage provided by CONTRACTOR shall be primary and any insurance or self-insurance procured or maintained by CITY shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and Page 228 of 350 Page 8 of 13 Public Works Agreement umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY before the CITY’s own insurance or self-insurance shall be called upon to protect it as a named insured. 4. CITY’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONTRACTOR or CITY will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, CITY may cancel this Agreement. 5. Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the CITY’s risk manager. 6. Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against CITY, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its subconsultants. 7. Enforcement of contract provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform CONTRACTOR of non-compliance with any requirement imposes no additional obligations on the CITY nor does it waive any rights hereunder. 8. Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. Page 229 of 350 Page 9 of 13 Public Works Agreement If the CONTRACTOR maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 9. Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. 10.Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. 11.Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing. 12.Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that CONTRACTOR’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. 13.Pass through clause. CONTRACTOR agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by CONTRACTOR, provide the same minimum insurance coverage and endorsements required of CONTRACTOR. CONTRACTOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. CONTRACTOR agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to CITY for review. 14.CITY’s right to revise requirements. The CITY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONTRACTOR a ninety (90) day advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the CITY and CONTRACTOR may renegotiate CONTRACTOR’s compensation. Page 230 of 350 Page 10 of 13 Public Works Agreement 15.Self-insured retentions. Any self-insured retentions must be declared to and approved by CITY. CITY reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by CITY. 16.Timely notice of claims. CONTRACTOR shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 17.Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. XI. CONTRACTOR’S LICENSE CONTRACTOR must possess at the time of commencing work and throughout the Project duration, a Contractor’s License, issued by the State of California, which is current and in good standing. CONTRACTOR shall ensure that any subcontractor working on the Project possesses at the time of commencing work and throughout the Project duration, a Contractor’s License, issued by the State of California, which is current and in good standing. XII. REGISTRATION REQUIREMENTS A. Pursuant to Section 1771.1(a) of the Labor Code: “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.” B. CONTRACTOR must be registered with the Department of Industrial Relations (DIR) of the State of California in order to be eligible to work on public works projects. CONTRACTOR must ensure registration with the DIR that is active and in good standing. Page 231 of 350 Page 11 of 13 Public Works Agreement C. No contractor or subcontractor may be listed on a bid proposal for a public works project (submitted on or after March 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. No contractor or subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. D. The CONTRACTOR is not subject to public works requirements (including registration with the DIR) if the public works project is under $1,000, unless the CITY knows that the same CONTRACTOR will be awarded total project costs in excess of $1,000 for a given year. Page 232 of 350 Page 12 of 13 Public Works Agreement XIII. CORPORATION IN GOOD STANDING If CONTRACTOR is a corporation, the undersigned hereby represents and warrants that the corporation is duly incorporated and in good standing in the State of California, and that John Wong whose title is Vice President is authorized to act for and bind the corporation. XIV. PROVISIONS REQUIRED BY LAW Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein and the Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not currently inserted, then upon application of either party the Agreement shall forthwith be physically amended to make such insertion or correction. XV. SUBSURFACE HAZARDOUS MATERIALS A. In the event trenches or other excavations extend deeper than four (4) feet below the surface, the CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the CITY in writing of any: 1. Material that the CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code that is required to be removed to a Class I, Class II or Class III disposal site in accordance with the provisions of existing law. 2. Subsurface or latent physical conditions at the site differing from those indicated. 3. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the Work or the character provided for in the CONTRACT. B. Upon receipt of said notification the CITY will investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the CONTRACTOR’s cost of or the time required for performance of any part of the work, the CITY will issue a change order under the procedures described in the General Conditions. C. In the event that a dispute arises between the CITY and the CONTRACTOR whether the conditions materially differ, or involve hazardous waste or cause a decrease or increase in the CONTRACTOR’s cost of or time required for performance of any part of the work, the CONTRACTOR shall not be excused from any scheduled completion date provided for by the Agreement, but shall proceed with all work to be performed under the Page 233 of 350 Page 13 of 13 Public Works Agreement Agreement. The CONTRACTOR shall retain any and all rights provided either by Agreement or by law which pertain to the resolution of disputes and protests between the contracting parties. XVI. COMPONENT PARTS OF THE CONTRACT This Agreement entered into consists of the following CONTRACT DOCUMENTS, all of which are component parts of the Agreement as if herein set out in full or attached hereto: Notice Inviting Bids Scope of Work Summary Information for Bidders Bid Form Non-Collusion Affidavit Site Visit Certification Faithful Performance Bond Labor and Materials Payment Bond General and Supplemental Conditions Special Conditions Project Construction Schedule Proposed Subcontractors Bid Bond Information Required of Bidder Construction Services Agreement Certificate Regarding Worker’s Compensation Drug-free Workplace Certification Plans and Specifications Addenda Drawings Change Orders Shop Drawing Transmittals Contractor’s Certificate Regarding Non-Asbestos Containing Materials All of the above named CONTRACT DOCUMENTS are intended to be complementary. Work required by one of the above named CONTRACT DOCUMENTS and not by others shall be done as if required by all. XVII. ENTIRE CONTRACT This Agreement constitutes the entire contract of the parties. No other agreements or contracts, whether oral or written, pertaining to the work to be performed, exists between the parties. This Agreement can be modified only by an amendment in writing, signed by both parties. [Signatures on following page.] Page 234 of 350 14 SIGNATURE PAGE TO CITY OF BEAUMONT PUBLIC WORKS AGREEMENT CITY: CITY OF BEAUMONT By: ________________________________ Julio Martinez III, Mayor CONTRACTOR: Elecnor Belco Electric, Inc By: ______________________________ Print Name: _______________________ Title: _____________________________ Page 235 of 350 15 CITY OF BEAUMONT PUBLIC WORKS AGREEMENT EXHIBIT “A” CITY’S INVITATION FOR BIDS (Insert behind this page.) Page 236 of 350 City of Beaumont Request for bid Traffic Signal- 1st St/Beaumont Ave ii CITY OF BEAUMONT CALIFORNIA PUBLIC WORKS DEPARTMENT CONTRACT DOCUMENTS & SPECIFICATIONS FOR: CITYWIDE TRAFFIC SIGNAL UPGRADE 1ST STREET AND BEAUMONT AVENUE Prepared Under the Supervision of: ___________________________________________________________________ Jeff Hart, P.E., Public Works Director/City Engineer Date 02/24/2023 Page 237 of 350 City of Beaumont Request for bid Traffic Signal- 1st St/Beaumont Ave NOTICE INVITING BIDS 1 TABLE OF CONTENTS NOTICE INVITING BIDS ................................................................................................. 1 INSTRUCTIONS TO BIDDERS ...................................................................................... 4 BID FORM .................................................................................................................... 11 BASE BID ..................................................................................................................... 12 BID SCHEDULE A .................................................................................................................. 12 BID CERTIFICATION ................................................................................................... 13 CONTRACTOR’S CERTIFICATE REGARDING WORKERS’ COMPENSATION ....... 14 BID BOND .................................................................................................................... 15 DESIGNATION OF SUBCONTRACTORS ................................................................... 18 INFORMATION REQUIRED OF BIDDERS .................................................................. 20 NON-COLLUSION AFFIDAVIT .................................................................................... 28 PERFORMANCE BOND ............................................................................................... 29 THIS IS A REQUIRED FORM ....................................................................................... 32 PAYMENT BOND ......................................................................................................... 34 02 GENERAL CONDITIONS ........................................................................................ 36 03 SPECIAL CONDITIONS .......................................................................................... 37 04 TECHNICAL SPECIFICATIONS .............................................................................. 38 05 CONTRACT DRAWINGS ........................................................................................ 39 06 PUBLIC WORKS AGREEMENT ............................................................................. 40 07 APPENDICES .......................................................................................................... 41 08 TRAFFIC SIGNAL PLAN…………..…………………………………………………….46 Page 238 of 350 City of Beaumont Request for bid Traffic Signal- 1st St/Beaumont Ave NOTICE INVITING BIDS 1 NOTICE INVITING BIDS The City of Beaumont, Public Works Department (“City”) is soliciting bids for: CITYWIDE TRAFFIC SIGNAL UPGRADE 1st STREET AND BEAUMONT AVENUE BID DATES, TIMES, & LOCATIONS: Bid Published: February 27, 2023 Bids Must Be Received By: March 24,2023 @ 11:00 A.M. Place Of Bid Receipt: 550 E. Sixth Street (City Hall) Beaumont, CA 92223 Questions In By: March 14, 2023 @ 11:00 A.M. Bid Opening Date: March 24, 2023 @ 11:15 A.M. Bid Opening Location: 550 E. Sixth Street (City Hall), Room 4 Beaumont, CA 92223 Bids received after this time will be discarded. Bids shall be valid for 90 calendar days after the bid opening date. Bids must be submitted on the City’s Bid Forms. Bids must be prepared on the approved Bid forms and in the manner prescribed in the Instructions to Bidders. Bids must be submitted with the following subject: “CITYWIDE TRAFFIC SIGNAL UPGRADE 1st STREET AND BEAUMONT AVENUE” LOCATION OF WORK: The work to be completed is located in the City of Beaumont at the intersection of 1st Street and Beaumont Avenue/Hwy-79. DESCRIPTION OF WORK: The proposed work shall be performed in accordance with the contract documents, including but not limited to the general conditions, special conditions, technical specifications, contract drawings, permits, and all other reference documents. In general, the work includes, but not limited to modification of existing traffic at the intersection of 1st Street and Beaumont Ave and associated improvements. City will be providing two signal poles (24-4-100 RSP), two 35’ SMA for respective poles, two 15’ luminaire mast arms, two sets of anchor bolts for poles, two sign brackets per detail U and signal timing for contractor to implement. Contractor shall provide all remaining hardware to complete the job. In addition, work include excavation, footing removal of existing poles, new footings, traffic control, utility adjustments, etc. Page 239 of 350 City of Beaumont Request for bid Traffic Signal- 1st St/Beaumont Ave NOTICE INVITING BIDS 2 CONTRACT LENGTH: The work for this contract shall not exceed 45 calendar days. Contract time shall commence upon issuance of the Notice to Proceed from the City. If The Work is not completed as stated in the Contract Documents, there will be liquidated damages in a sum of $500 per calendar day as stated in General Conditions, Article 43. AWARD OF CONTRACT: The City shall award the Contract for the Project to the lowest responsive, responsible bidder as determined from the base bid. The City reserves the right to reject any or all bids or to waive any irregularities or informalities in any bids or in the bidding process. The City of Beaumont hereby affirmatively ensures that minority business enterprises will be afforded full opportunity to submit Bids in response to this Notice, and that minorities nor minority business enterprises will not be discriminated against on the basis of race, color, national origin, ancestry, sex, or religion in any consideration leading to the award of contract. For further information, please see the form titled “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity (Executive Order 11246)” within the Bid Documents. CONTRACT DOCUMENTS AND SPECIFICATION: Copies of the Contract Documents and Specification are available for inspection at no cost to the bidder at City Hall. The documents can also be downloaded from the City’s Website (https://www.beaumontca.gov) and WWW.PUBLICPURCHASE.COM and reviewed at no cost. BID & BIDDER: Bids must be accompanied by cash, a certified or cashier’s check, or a Bid Bond in favor of the City in an amount not less than ten percent (10%) of the submitted Total Bid Price. Each bid shall be accompanied by the security referred to in the Contract Documents, the non-collusion affidavit, the list of proposed subcontractors, and all additional documentation required by the Instructions to Bidders. The successful bidder will be required to furnish the City with a Performance Bond equal to 100% of the successful bid, and a Payment (Labor and Materials) Bond equal to 100% of the successful bid, prior to execution of the Contract. All bonds are to be secured from a surety that meets all of the State of California bonding requirements, as defined in Code of Civil Procedure Section 995.120, and is admitted by the State of California. Each bidder shall be a licensed contractor pursuant to the Business and Professions Code and shall be licensed in the following appropriate classification(s) of contractor’s license(s), for the work bid upon, and must maintain the license(s) throughout the duration of the Contract: Page 240 of 350 16 CITY OF BEAUMONT PUBLIC WORKS AGREEMENT EXHIBIT “B” CONTRACTOR’S Bid (Insert behind this page.) Page 241 of 350 Page 242 of 350 Page 243 of 350 Page 244 of 350 Page 245 of 350 Page 246 of 350 Page 247 of 350 Page 248 of 350 Page 249 of 350 Page 250 of 350 Page 251 of 350 Page 252 of 350 Page 253 of 350 Page 254 of 350 Page 255 of 350 Page 256 of 350 Page 257 of 350 Page 258 of 350 Page 259 of 350 Page 260 of 350 Page 261 of 350 Page 262 of 350 Page 263 of 350 Page 264 of 350 Page 265 of 350 Page 266 of 350 Page 267 of 350 Page 268 of 350 Page 269 of 350 Page 270 of 350 Page 271 of 350 Page 272 of 350 Page 273 of 350 Page 274 of 350 Page 275 of 350 Page 276 of 350 Page 277 of 350 Page 278 of 350 Page 279 of 350 Page 280 of 350 Page 281 of 350 Page 282 of 350 Page 283 of 350 Page 284 of 350 Page 285 of 350 Page 286 of 350 Page 287 of 350 Page 288 of 350 Page 289 of 350 17 CITY OF BEAUMONT PUBLIC WORKS AGREEMENT EXHIBIT “C” Insurance Certificates and Endorsements (Insert behind this page.) Page 290 of 350 Staff Report TO: City Council FROM: Jeff Hart, Public Works Director DATE April 18, 2023 SUBJECT: Fourth Amendment to the Professional Services Agreement with Kimley Horn for the Pennsylvania Avenue Widening Project (CIP 2017-009), in an Amount Not to Exceed $60,940 Description Strategic Plan Priority Level 3, Target 2, Goal 9. Background and Analysis: The Pennsylvania Avenue Widening Project will widen and add two additional lanes to Pennsylvania Avenue between First Street and Sixth Street, a distance of approximately 2,800 feet. The project includes widening the Union Pacific railroad crossing, adding lanes below the I-10 overpass, relocating Edison poles and other utilities, and providing new storm drain inlets, culverts, and storm drain pipelines. The project also includes providing new traffic signals at the intersection of Pennsylvania and Sixth Street. In September 2017, the City Council approved a Professional Services Agreement with Kimley Horn for the design of the Pennsylvania Avenue Widening project. Three additional design contract amendments were approved respectively in January 2018, November 2018, and July 2022, bringing the total design contract to $536,856. The most recent amendment was made to provide contin ued services during the ongoing construction of the project, including Caltrans coordination and submittal and request for information (RFI) review. Traffic signals at Pennsylvania Avenue and First Street are not currently included in the construction scope and staff is requesting it be added as part of the current CIP Amendment. A contract amendment with Kimley Horn is therefore recommended in order to design the addition of the traffic signals at Pennsylvania Ave nue and First Street. The additional design scope includes the following:  Traffic Signal Plans  Revised Signing and Striping Plans  Revised Street Improvement Plans Page 291 of 350  Updated Specifications Quantities and Technical Specs  Right-of-Way Acquisitions Services  Legal Description and Plat Fiscal Impact: The estimated cost to prepare this staff report is $350. The following table provides an overview of the current project funding, project budget, and remaining budget. A contract summary table is also provided. 2017-009 Pennsylvania Avenue Widening Project Accounting Summary Funding Summary Funding Year Funding Source Amount FY 17/18 Road & Bridge DIF $650,000.00 FY 17/18 Grant $24,600.00 FY 19/20 TUMF $3,368,000.00 FY 22/23 2022 Appropriation Bill $1,300,000.00 FY22/23 General Fund $4,000,000.00 FY22/23 Road & Bridge DIF $1,200,000.00 Total Project Funding = $10,542,600.00 Budget Summary Project Component Budget Encumbered Paid to Date Remaining Budget Project Management $22,538.00 ($22,537.44) ($22,537.44) $0.56 Preliminary Services $142,540.00 ($142,540.00) ($26,018.64) $0.00 Environmental $164,026.00 ($164,026.00) ($163,708.10) $0.00 Design $597,796.00 ($536,856.00) ($494,082.22) $60,940.00 Construction $9,285,268.00 ($9,285,268.00) ($464,897.38) $0.00 Construction Services $60,000.00 ($20,810.00) ($2,991.50) $39,190.00 Permits $270,432.00 ($192,102.00) ($190,697.51) $78,330.00 Equipment $0.00 $0.00 $0.00 $0.00 Project Summary Totals $10,542,600.00 ($10,364,139.44) ($1,364,932.79) $178,460.56 Page 292 of 350 2017-009 Kimley Horn Contract Summary Total Amount Amount Remaining Current Design Contract $536,856 $42,773.78 Proposed Amendment #4 $60,940 $60,940 New Proposed Contract $597,796 $103,713.78 The recommended amendment to the professional services agreement in an amount not to exceed $60,940 will bring the total contract amount for professional engineering and design services with Kimley Horn to $597,796. Funding for the contract amendment will be paid from the available CIP budgets for Design as shown in the preceding tables. Recommended Action: Approve a fourth amendment to the professional services agreement with Kimley Horn for the Pennsylvania Avenue Widening Project, in an amount not to exceed $60,940. Attachments: A. Fourth Amendment to PSA with Kimley Horn B. Kimley Horn Scope and Fee Page 293 of 350 FOURTH AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT BETWEEN CITY OF BEAUMONT AND KIMLEY HORN FOR PROFESSIONAL ENGINEERING SERVICES FOR PENNSYLVANIA AVENUE WIDENING (CIP 2017-009) THIS FOURTH AMENDMENT TO AGREEMENT FOR PROFESSIONAL SERVICES BY INDEPENDENT CONTRACTOR is made and effective as of the 18th_ day of _April_, 2023, by and between the CITY OF BEAUMONT, a general law city, (“CITY”) whose address is 550 E. 6th Street, Beaumont, California 92223 and KIMLEY HORN, a California corporation whose address is 1100 W. Town and Country Rd., Suite 700, Orange, CA 92868 (“CONTRACTOR”) in consideration of the mutual promises and purpose contained herein, the parties agree as follow: 1. RECITALS This Fourth Amendment is made with respect to the following facts and purpose that the parties agree are true and correct: A. On September 19, 2017, the City and KIMLEY HORN, entered into that certain agreement entitled “Agreement for Professional Services by Independent Contractor” for DESIGN SERVICES FOR THE PENNSYLVANIA AVENUE WIDENING PROJECT (“Agreement”). B. City has requested a further change in scope to the work under the Agreement regarding design of traffic signals at Pennsylvania Ave. and 1st Street and CONTRACTOR has requested that the scope of work should be increased as provided in the Proposal dated April 3, 2023, a copy of which is attached hereto as Exhibit “A”, and incorporated herein by this reference. 2. AMENDMENT Section 2 of the Agreement is hereby amended to add to the Services those services identified in the Proposal attached hereto as Exhibit “A”. Section 4.01 of the Agreement is hereby amended to increase the maximum compensation under the Agreement as follows: Under previous Amendments, compensation was set at five hundred and thirty-six thousand, eight hundred and fifty-six dollars ($536,856). Per this Fourth Amendment, compensation is increased by the maximum amount of sixty thousand, nine hundred and forty dollars ($60,940) as provided in the Proposal attached hereto as Exhibit “A” resulting in total compensation under the Agreement not to exceed five hundred and ninety-seven thousand, seven hundred and ninety-six dollars ($597,796). The recitals to this Amendment are deemed incorporated herein by this reference. All other terms of the Agreement not expressly amended by this Amendment shall remain in full force and effect. Page 294 of 350 IN WITNESS WHEREOF, the parties hereby have made and executed this Fourth Amendment to Professional Services Agreement to be effective as of the day and year first above-written. CITY: CITY OF BEAUMONT By: ________________________________ Julio Martinez III, Mayor ATTEST City Clerk APPROVED AS TO FORM John Pinkney, City Attorney CONTRACTOR: ___KIMLEY_HORN________________ By: ______________________________ Print Name: _______________________ Title: _____________________________ Page 295 of 350 EXHIBIT “A” PROPOSAL DATED April 3, 2023 Page 296 of 350 kimley-horn.com 1100 W. Town and Country Rd., Suite 700, Orange, CA 92868 714 939 1030 April 3, 2023 Dustin Christensen, P.E. – Principal Engineer City of Beaumont - Department of Public Works 550 E. 6th Street, Beaumont, CA 92223 RE: Pennsylvania Avenue Widening from 1st Street to 6th Street – Amendment No. 4 for Pennsylvania Ave – 1st Street Traffic Signal, ADA Improvements, and Right- of-Way Dear Mr. Christensen: Kimley-Horn and Associates, Inc. (Kimley-Horn) is pleased to submit this request to the City of Beaumont (City) to provide additional design services for the Pennsylvania Avenue Widening Improvements Project (Project). Our understanding, scope of services, and fee to perform these services are below. Understanding Kimley-Horn completed the final engineering design for the Project, which is currently under construction. This scope of work encompasses additional items of work requested by the City related to the design of a new traffic signal and ADA improvements at the intersection of Pennsylvania Avenue and 1st Street which are not included in our current scope of work. Partial property rights are anticipated to be required from an adjacent tax parcel at the southeast corner of the intersection as a narrow in-fee acquisition area (“sliver take”). Scope of Services Task A34– Traffic Signal Plans Kimley-Horn will coordinate with the City to determine the desired design approach and to obtain additional record drawings for the area as needed. Kimley-Horn will prepare a traffic signal plan at Pennsylvania Avenue and 1st Street to install a new traffic signal at the existing unsignalized intersection. The traffic signal plan will be prepared in accordance with current City of Beaumont requirements and Caltrans standards and will be prepared at 20- scale (1” = 20’) on one 24” x 36”, full-size sheet using AutoCAD 2020 version drafting software. Deliverables: Traffic Signal Plan (1 Sheet) Page 297 of 350 Mr. Christensen April 3, 2022 Page 2 of 5 kimley-horn.com 1100 W. Town and Country Rd., Suite 700, Orange, CA 92868 714 939 1030 K:\ORA_RDWY\194018002 - Pennsylvania Ave Widening\Contract & Billings\Amendments\Amend 04 - 1st Street Traffic Signal\2023-04- 03 Penn Widening Amend 4 Rev0.docx Task A35 – Signing and Striping Plans Kimley-Horn will revise the signing and striping plan, sheet 22 of the Pennsylvania Avenue Roadway Widening Improvement Plans, to remove the currently proposed stop condition, install crosswalks across the south and west leg of the intersection, and incorporate the new traffic signal at Pennsylvania Avenue and 1st Street. Deliverables: Revised Signing and Striping Plan (1 Sheet) Task A36 – Street Improvement Plans Kimley-Horn will update current Street Improvement plans to show and callout horizontal features of proposed curb returns, limits of pavement rehabilitation, curb ramps, curb and gutter, sidewalk and cross gutter for the curb returns at the southwest and southeast corners of Pennsylvania Avenue and 1St Street. Revisions will be made to the Typical Sections, Street Plan and Profiles, Intersection Details and Utility Plans. Detailed callouts, elevations and slopes will be provided along the curb return profiles. Back of ramp and sidewalk elevations will be verified to ensure curb ramps are constructable and comply with current ADA guidelines. Detailed curb ramp elevations callouts are not anticipated since curb ramps will be designed to standard configurations. Deliverables: Revised Street Plan and Profile and Intersection Details (2 Sheets) Task A37 – Technical Specifications and Bid Items Kimley-Horn will issue an addendum to the Issued for Construction (IFC) technical specifications dated December 15, 2022 to encompass the proposed traffic signal, signing and striping, and roadway improvements at Pennsylvania Avenue and 1st Street. Bid items and quantities will be updated as part of this addendum for the improvements included in this scope of work. The traffic signal bid item will be Lump Sum and no cost estimate will be provided. No quantities or costs will be revised or provided for project elements that were previously approved as part of the Pennsylvania Avenue Widening Improvements Project. Deliverables: Technical Specification and Quantities Addendum Task A38 – Right-of-Way Acquisition Services Kimley-Horn team will manage the process to clear title, provide the waiver valuation of land rights required, and perform negotiations with the property owners to acquire the sliver take. Kimley-Horn team will fulfill the following milestones to complete the right-of-way services required for the City to construct the Traffic Signal and ADA Improvements: Title Examination: This encompasses obtaining a preliminary title report for the affected parcel, and performing a desk review of the title report, legal description, Page 298 of 350 Mr. Christensen April 3, 2022 Page 3 of 5 kimley-horn.com 1100 W. Town and Country Rd., Suite 700, Orange, CA 92868 714 939 1030 K:\ORA_RDWY\194018002 - Pennsylvania Ave Widening\Contract & Billings\Amendments\Amend 04 - 1st Street Traffic Signal\2023-04- 03 Penn Widening Amend 4 Rev0.docx and plat map to verify ownership and identify any encumbrances. Kimley-Horn team will assist in clearing encumbrances prior to closing. Appraisal Waiver Valuation: The Waiver Valuation process may be used in lieu of an appraisal summary report to calculate the value of a specific property to establish the Amount of Just Compensation. The Waiver Valuation is allowable because the value of each property right being acquired is estimated at $10,000 or less, and each valuation problem is uncomplicated. Waiver Valuations can drastically reduce appraisal expenses, and can apply to any property type, including temporary construction easements (TCEs) and slope easements. The valuation will be provided to the City to approve the Amount of Just Compensation for each acquisition area. Offer Package Preparation and Property Rights Acquisitions/Negotiations: Kimley- Horn team will prepare an offer package and negotiate with property owners for the purchase of property rights in good faith. The right of way agent will provide each property owner with a detailed explanation of the property interest being acquired, the proposed design and construction details as it affects the property, and advise regarding the acquisition process and the construction (timing, phasing, type, etc.). Kimley-Horn team will follow-up and negotiate with property owner to settle the acquisition of rights via voluntary means. Kimley-Horn team will review all project files for quality assurance to make sure all acquisition files meet all local, state, and federal laws and regulations, as well as being compliant with federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) requirements. Once signatures from the property owner and the client on acquisition agreement(s) have been obtained, Kimley-Horn team will open escrow and oversee the escrow process to obtain signature on all necessary documentation such as grant deeds and temporary construction easement deeds to convey title and transfer funds. At the close of this process, Kimley-Horn team will transmit closed acquisition documents to the CITY. Deliverables: Up to one (1) preliminary title report, up to one (1) waiver valuation, acquisition offer documents, final title policy Task A39 – Legal Description and Plat Kimley-Horn team will prepare a single legal description and plat for sliver take at the southeast corner of the Pennsylvania Avenue and 1st Street Intersection. No specific format was requested by the City and as such the legal description and plat will be formatted following Kimley-Horn team’s internal standards. Deliverables: A copy of the Legal and Plat, signed by a PLS in .pdf format Page 299 of 350 Mr. Christensen April 3, 2022 Page 4 of 5 kimley-horn.com 1100 W. Town and Country Rd., Suite 700, Orange, CA 92868 714 939 1030 K:\ORA_RDWY\194018002 - Pennsylvania Ave Widening\Contract & Billings\Amendments\Amend 04 - 1st Street Traffic Signal\2023-04- 03 Penn Widening Amend 4 Rev0.docx Task A40 – Transportation Project Guidance (TPG) Kimley-Horn will update the Transportation Project Guidance (water quality report for transportation projects) to incorporate the additional project area included in this scope and to accurately reflect the latest construction documents. This includes updating calculations and exhibits for the additional project area and updating exhibits to reflect two BMP’s instead of four BMPs to be consistent with current plans. Storm drain plan revisions are excluded. Deliverables: A copy of the Transportation Project Guidance .pdf format Assumptions & Exclusions Kimley-Horn will provide one (1) submittal package for the plans, specifications and quantities to the City, and upon receipt of one (1) consolidated set of comments from the City, will address comments and provide a Final submittal package to the City. It is assumed that the City will coordinate service point locations with Southern California Edison (SCE). It is assumed that the City will coordinate the fire hydrant relocation at the southwest corner of the intersection and any other utility relocations. Utility coordination is excluded. This task does not include potholing. If potholing is requested by the City, the scope and fee will be adjusted accordingly. The traffic control plans will not be revised and will be updated by the Contractor for the construction of the traffic signal and curb ramps at the Pennsylvania Avenue and 1st Street intersection. Storm drain plan revisions, updates to the drainage report, and updates to the environmental reports for project footprint are excluded. The same pavement recommendations currently shown on Pennsylvania Avenue will be used for additional paving limits. No cross gutter will be proposed or provided on the plans. Valuations will consider land values only and no damages to property improvements. Assumes no Phase I or Phase II Site Assessments are required. Assumes 1 appraisal waiver valuation will be prepared. Appraisal Waiver Valuation will be completed within 12 weeks of Notice to Proceed (NTP) and the appraiser’s receipt of all pertinent documents (e.g., preliminary title reports, appraisal maps, legal descriptions, plat maps, mitigation plans). Assumes up to one (1) tax parcel owned by 1 unique entity is impacted. Right-of-way acquisition assumes 4 virtual client meetings, monthly status report preparation, and related tasks. Assumes 1 partial acquisition only; no full-parcel acquisitions or relocations. Page 300 of 350 Mr. Christensen April 3, 2022 Page 5 of 5 kimley-horn.com 1100 W. Town and Country Rd., Suite 700, Orange, CA 92868 714 939 1030 K:\ORA_RDWY\194018002 - Pennsylvania Ave Widening\Contract & Billings\Amendments\Amend 04 - 1st Street Traffic Signal\2023-04- 03 Penn Widening Amend 4 Rev0.docx Assumes no condemnation proceedings. Assumes Client will provide Right of Way document templates. Kimley-Horn can provide for an additional fee. Additional Caltrans coordination or review of these improvements are excluded. Fee & Schedule We are requesting a not-to-exceed fee of $60,940 to accomplish the above stated scope of services. We will provide these services according to a mutually agreed upon schedule. Closure If you concur in all the foregoing and wish to direct us to proceed with the services, please forward the appropriate Amendment Agreement for our review and execution. This proposal is valid for sixty (60) days after the date of this letter. We appreciate the opportunity to provide these services to you. Please contact me if you have any questions. Very truly yours, Alan Huynh, P.E. (No.90459) Darren Adrian, P.E. (No. 53031) Project Engineer Project Manager Attachments: Not-to-Exceed Fee Estimate Page 301 of 350 City of Beaumont Pennsylvania Avenue Widening 1st Street to 6th Street Amendment 04 Not-to-Exceed Fee 04/03/2023 PIC Project Manager QA/QC Sr. Prof Prof II Prof I Analyst II Analyst I Support Staff Surveying Towill, Inc R/W Acq. Epic Hourly Billing Rate $360.00 $360.00 $305.00 $190.00 $170.00 $155.00 $135.00 $115.00 Total Hours Labor Cost Total Cost Task A34 Traffic Signal Plans 1 6 20 6 70 2 105 $ 18,090.00 $ 18,090.00 Task A35 Signing and Striping Plans 1 4 2 12 19 $ 3,320.00 $ 3,320.00 Task A36 Street Improvement Plans 1 2 10 20 33 $ 5,540.00 $ 5,540.00 Task A37 Technical Specifications and Bid Items 1 4 9 5 19 $ 3,425.00 $ 3,425.00 Task A38 Right-of-Way Coordination 5 20 4 $ 13,591 29 $ 5,660.00 $ 19,250.50 Task A39 Legal Description and Plat 1 5 4 $ 4,620 10 $ 1,670.00 $ 6,290.00 Task A40 Transportation Project Guidance 1 8 12 21 $ 3,580.00 $ 3,580.00 $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - 11 6 30 60 119 10 236 Subtotals -$ 3,960$ 1,830$ 5,700$ 10,200$ 18,445$ -$ 1,150$ $ 4,620 $ 13,591 $ 41,285 $ 59,496 Expenses (as a percentage of labor fees)3.50% $ 1,445 $ 60,940 Kimley-Horn Staff TOTAL HOURS TOTAL COST Subconsultants Note: Kimley-Horn will not exceed the total maximum fee shown without authorization from the Client. Individual task amounts and hours for stated classifications are provided for budgeting purposes only. Kimley-Horn reserves the right to reallocate amounts among tasks as necessary. 1 of 1Page 302 of 350 EXHIBIT "A" Executed Third Amendment Professional Services Agreement with Kimley-Horn and Associates, Inc. Page 303 of 350 Page 304 of 350 Page 305 of 350 EXHIBIT "B" Executed Second Amendment Professional Services Agreement with Kimley-Horn and Associates, Inc. Page 306 of 350 Page 307 of 350 Page 308 of 350 EXHIBIT "C" Executed First Amendment Professional Services Agreement with Kimley-Horn and Associates, Inc. Page 309 of 350 Page 310 of 350 Page 311 of 350 EXHIBIT "D" Executed Original Professional Services Agreement with Kimley-Horn and Associates, Inc. Page 312 of 350 Page 313 of 350 Page 314 of 350 Page 315 of 350 Page 316 of 350 Page 317 of 350 Page 318 of 350 Page 319 of 350 Page 320 of 350 Page 321 of 350 Staff Report TO: City Council FROM: Nicole Wheelwright, Deputy City Clerk DATE April 18, 2023 SUBJECT: Mayoral Appointment of Liaisons to the Beaumont Library District and the Cherry Festival Association Description Liaisons will represent the City Council at various meetings of the Beaumont Library District and Cherry Festival Association. Background and Analysis: City Council has expressed the need for a liaison for the Beaumont Library District and the Cherry Festival Association. The Beaumont Library Board of Trustees meets on the fourth Thursday of each month at 6:30 p.m. The Cherry Festival Association meets on the first Wednesday of each month at 5:30 p.m. In May the meeting frequency is weekly. Fiscal Impact: Staff estimates the cost to prepare this report to be $85. Recommended Action: Mayoral appointment of liaisons and alternates. Page 322 of 350 Staff Report TO: City Council FROM: Kari Mendoza, Administrative Services Director DATE April 18, 2023 SUBJECT: Consider Approval of the First Amendment and Restated City Manager Employment Agreement. Description The City Council and City Manager engage in labor negotiations on an annual basis as it relates to the anniversary of the appointment date of the City Manager with the City, April 11, 2023. Background and Analysis: The result of those negotiations is reflected in the attached first amendment and restated City Manager Employment Agreement. Substantive changes include a termination date of July 18, 2025, base salary increase of $11,627.16 and a one -time bonus of $5,570.16 Fiscal Impact: The fiscal impact for the remainder of FY23 will be approximately $8,657. The cost to complete this staff report was approximately $250. Recommended Action: Consider Approval of the First Amendment and Restated City Manager Employment Agreement. Attachments: A. Consider Approval of the First Amendment and Restated City Manager Employment Agreement. B. City Manager Job Description Page 323 of 350 1 FIRST AMENDED AND RESTATED CITY MANAGER EMPLOYMENT AGREEMENT This FIRST AMENDED AND RESTATED CITY MANAGER EMPLOYMENT AGREEMENT (hereinafter referred to as the “Agreement”) is entered into and made effective the 18th day of April 2023 by and between CITY OF BEAUMONT (hereinafter referred to as the “CITY”), and ELIZABETH GIBBS, an individual (hereinafter referred to as “EMPLOYEE”). For purposes of this Agreement, CITY and EMPLOYEE may be collectively referred to as the “Parties” or individually as a “Party.” RECITALS Based on EMPLOYEE’s executive and administrative qualifications and ability, the City Council of CITY (“COUNCIL”) desires EMPLOYEE to serve as the City Manager for CITY; and EMPLOYEE desires to serve and perform the responsibilities and duties as the City Manager for CITY; and In consideration of these recitals and performance of the mutual promises, conditions and covenants contained herein, the CITY and EMPLOYEE agree as follows: 1. POSITION, DUTIES AND TERM. 1.1 Position, Duties & Term. EMPLOYEE agrees to serve as the City Manager and shall perform all City Manager functions, duties and services as established under California law and as set forth in the City of Beaumont Municipal Code (“Municipal Code”) as may be amended from time to time. This Agreement shall terminate on July 18, 2025 and is subject to the “At-Will” provision in Section 1.2 and termination provision in Section 6. Section 2.12.060 of the Municipal Code sets forth the Powers and Duties of the Beaumont City Manager (Powers & Duties). As City Manager, EMPLOYEE shall function as the Chief Executive Officer of the CITY and shall be responsible to the CITY and its COUNCIL for the proper, lawful and ethical administration of all affairs of the CITY. In the role of the City Manager, EMPLOYEE shall also serve at the pleasure of the COUNCIL as the Director of any sub-entities/agencies of the City of Beaumont. 1.2 Employment with CITY “At-Will ”. (a) EMPLOYEE’s employment status with CITY shall be at-will and EMPLOYEE shall serve at the pleasure of the COUNCIL. EMPLOYEE acknowledges, understands and agrees that EMPLOYEE may not avail herself of any procedures, provisions or protections set forth under CITY’s Employment Policies, as defined herein, in so far as such procedures, provisions or protections limit, restrict, modify, prohibit or regulate EMPLOYEE’s status as an “at-will” employee of CITY or the ability of the COUNCIL to terminate Page 324 of 350 2 EMPLOYEE’s employment at any time for cause or for convenience and without cause. For purposes of this Agreement, the capitalized term “Employment Policies” means and refers to any ordinance, resolution, regulation, rule, memorandum of understanding, or other written policy of CITY as the same may be amended, modified or supplemented from time-to-time, and any written employment manual of CITY which governs, regulates or otherwise relates to employment with CITY. CITY’s Employment Policies shall not apply to EMPLOYEE in so far as such Employment Policies limit, restrict, modify or regulate (or may be interpreted to limit, restrict, modify or regulate) EMPLOYEE’s status as an “at-will” employee of CITY. (b) EMPLOYEE shall not be entitled to any pre-termination notice or hearing or other similar proceeding or appeal proceeding as a precondition to any decision or action by the CITY to terminate EMPLOYEE’s employment whether for cause or for convenience and without cause. (c) Nothing in this Agreement shall confer upon EMPLOYEE any right to any property interest in continued employment with CITY. 1.3 Work Hours. The position of City Manager is an exempt position under state and federal wage and hour laws. EMPLOYEE’s compensation (whether salary or benefits or other allowances) is not based on hours worked and EMPLOYEE shall not be entitled to any compensation for overtime. EMPLOYEE is expected to engage in those hours of work that are necessary to fulfill the obligations of the City Manager’s position. The City Manager does not have set hours of work as the City Manager is expected to dedicate herself on a full-time basis to serving as City Manager and to be available at all reasonable and relevant times. 1.4 Non-CITY Activities. In accordance with Government Code Section 1126, during the period of EMPLOYEE’S employment, EMPLOYEE shall not accept, without the express prior written approval of three or more members of the COUNCIL, any other employment or engage, directly or indirectly, in any other business, commercial, or professional activity, whether or not to pecuniary advantage, that is or may be competitive with her duties as City Manager or that may be competitive with CITY, that might cause a conflict-of-interest with CITY, or that otherwise might interfere with the business or operation of CITY or the s atisfactory performance of EMPLOYEE’s duties as City Manager. 2. COMPENSATION BENEFITS AND REIMBURSEMENT . 2.1 Base Salary. Commencing on April 11, 2023, EMPLOYEE’s gross annual salary shall be $241,633.56 (hereinafter, the “Base Salary”) to be paid monthly or bi-weekly installments at the same time and in the same manner as other management employees of CITY. On April 18, 2023, EMPLOYEE shall receive a one-time non-PERSable performance bonus of $5,750.16. EMPLOYEE’s salary shall be subject to customary withholding for taxes and other required deductions. In recognition of EMPLOYEE accomplishing goals and objectives identified by the COUNCIL, the COUNCIL may, in its discretion, grant EMPLOYEE merit increases in her salary, annual merit bonuses and/or benefits. Page 325 of 350 3 2.2 Performance Evaluation. As needed and on the annual anniversary of the commencement of EMPLOYEE'S employment with CITY, COUNCIL and EMPLOYEE shall define the goals and objectives that they determine are appropriate for the proper operation of the CITY. Concurrently with the annual establishment of the goals and objectives for the CITY, the COUNCIL and EMPLOYEE shall establish the performance goals for EMPLOYEE and any specific criteria that shall be used to evaluate EMPLOYEE'S performance. The COUNCIL may in its discretion amend said criteria from time to time, after consultation with EMPLOYEE. The failure of CITY to undertake performance evaluations shall not limit CITY’s ability to terminate EMPLOYEE and this Agreement pursuant to Section 6 (Termination). 2.3 Reimbursement. CITY shall reimburse EMPLOYEE for reasonable and necessary travel, subsistence and other business expenses incurred by EMPLOYEE in the performance of EMPLOYEE’S official duties. All reimbursements shall be subject to and in accordance with any limitations or restrictions set forth under the laws of the State of California or any CITY -adopted reimbursement policies. 2.4 Vehicle Allowance. In lieu of expense reimbursement for mileage, EMPLOYEE shall receive a vehicle allowance of $350.00 per month or alternatively the use of a take-home City vehicle. EMPLOYEE shall be responsible for payment of automobile and liability insurance, maintenance, repair, replacement costs, all taxes applicable to the vehicle allowance and shall be solely responsible for all expenses associated with her vehicle. EMPLOYEE shall be responsible for maintaining necessary records as may be required by Federal and/or State taxing authorities. 2.5 Cell Phone and Computer. CITY shall provide EMPLOYEE with a monthly cell phone allowance of $100 and a desktop computer for official use in connection with CITY business. 2.6 Benefits. In addition to Base Salary, CITY shall also provide EMPLOYEE with the following benefits: (a) Cafeteria Plan. CITY shall contribute up to One-Thousand Six Hundred Seventy Five Dollars ($1,675) per month to EMPLOYEE for the cafeteria benefit plan detailed in this section. (i) Said contribution shall be used to provide for health insurance for EMPLOYEE. EMPLOYEE shall be covered by health insurance with a CITY approved health plan unless EMPLOYEE provides proof to CITY that EMPLOYEE is covered by another acceptable health plan as determined by CITY’s Human Resource Department. (ii) The balance of the cafeteria plan contribution may be used for any of the following or any combination thereof: (1) Health Insurance for EMPLOYEE’s spouse and/or dependents; (2) Dental Insurance for EMPLOYEE’s, spouse and/or dependents; Page 326 of 350 4 (3) Eye care plan for EMPLOYEE, spouse and/or dependents; (4) Supplemental Insurance Options. (iii) There is no cash-back of the remaining contributions amount, if any, to EMPLOYEE after payment of the selected premiums(s). EMPLOYEE shall be responsible for the remaining payments(s) through payroll deduction, of any premiums selected which are in excess of the monthly contribution amount. (b) Life and Short-Term Disability Insurance. CITY agrees that during the term of employment, it will pay the annual premiums for a term life insurance policy in the amount of $50,000.00. If available, additional coverage may be purchased at EMPLOYEE’s expense and costs. EMPLOYEE shall nominate the beneficiary under such term life insurance policy. Thirty days after commencement of EMPLOYEE’s full time employment, CITY shall provide EMPLOYEE with short term disability insurance coverage consistent with policy terms provided to other non-sworn management level CITY employees. 2.7 Jury Duty. EMPLOYEE will receive Base Salary and benefits while responding to a jury summons or serving on a jury. Any compensation for such jury duty (except travel pay) shall be remitted to CITY. 2.8 Administrative/Personal Leave. EMPLOYEE shall be allocated a maximum of forty (40) hours of administrative/personal leave on July 1st of each CITY fiscal year. The maximum amount of administrative/personal leave that EMPLOYEE may accrue at any given time may not exceed eighty (80) hours total. Accrued but unused administrative/personal leave may not be sold back to CITY. 3. ILLNESS OR INJURY; DISABILITY AND DEATH. 3.1 Cessation of Work Due to Injury or Disability. In addition to any right of termination set forth under Sections 1.2 (Employment With CITY “At-Will”) and Section 6 (“Termination”), CITY also reserves the right to terminate EMPLOYEE’s employment along with this Agreement if EMPLOYEE ceases to work as a result of injury or disability which results in EMPLOYEE being unable to perform the essential duties of the City Manager position, with or without accommodation, for a period of six (6) consecutive months or more, as documented by a healthcare provider. The foregoing notwithstanding, CITY may terminate EMPLOYEE if the disability poses a direct threat to CITY, EMPLOYEE or any other employees working for CITY and any reasonable accommodation attempted by CITY would not mitigate or eliminate such a threat. CITY will not provide a severance payment if EMPLOYEE is terminated under this Section of this Agreement. 3.2 Compensation for Work-Related Illness or Injury. In the event EMPLOYEE suffers a physical or mental illness or disability arising out of the course of employment, EMPLOYEE’s exclusive remedy or remedies against CITY for such illness, injury or disability shall be those legally required under the workers ’ compensation laws of the State of California. Page 327 of 350 5 3.3 Medical Examination. EMPLOYEE agrees to submit to a medical and/or psychological examination by a qualified physician or psychiatrist selected by CITY, in the event a decision must be made under Sections 3.1 through 3.2. CITY and EMPLOYEE shall receive a copy of all medical reports related to the examination. 3.4 Death of EMPLOYEE. This Agreement along with EMPLOYEE’s employment shall terminate automatically upon EMPLOYEE’s death. 3.5 Compensation Upon Termination. Except as otherwise provided under this Agreement, if EMPLOYEE’s employment is terminated pursuant to this Section 3 (Illness or Injury; Disability and Death), CITY shall pay EMPLOYEE all Base Salary, benefits, and compensation due and owing EMPLOYEE through the last day actually worked. If termination is caused by EMPLOYEE’s death, CITY shall provide the compensation and benefits otherwise due EMPLOYEE to EMPLOYEE’s executor, administrator, heirs, personal representatives, successors, and assigns. CITY will not provide for severance pay if EMPLOYEE is terminated under the provisions of Section 3.1 through 3.5, above. 4. HOLIDAY S, VACATION AND SICK LEAVE . 4.1 Holidays. EMPLOYEE shall receive paid holidays in accordance with CITY’s current practices as such practices may be amended or modified from time to time by CITY by action of the COUNCIL. Paid holidays will be those approved by CITY by action of the COUNCIL. Unused holiday leave time shall be accumulated and paid to EMPLOYEE in the last pay check in June of each fiscal year. 4.2 Vacation. EMPLOYEE shall accrue twenty-five (25) days of vacation per year. EMPLOYEE was credited with ten (10) days of vacation upon commencing full time employment with CITY. EMPLOYEE may convert a maximum of eighty (80) hours of accrued vacation time to cash during each year this Agreement is in effect. 4.3 Sick Leave. (a) Sick leave shall accrue at the rate of 3.69 hours per bi-weekly pay period. (b) CITY and EMPLOYEE agree to an accumulation cap consistent with other non-sworn management employees’ accumulation cap. (c) CITY agrees to a service credit of unused sick leave for PERS retirement when EMPLOYEE retires from CITY employment or a lump sum payment of the value of the unused sick leave, as requested by EMPLOYEE and permitted by law. (d) EMPLOYEE may use accrued paid sick leave for the purposes set forth in Labor Code section 246.5(a). Page 328 of 350 6 (e) Accrued paid sick leave shall carry over to the following year, but no additional paid sick pay will accrue until EMPLOYEE’s accrued paid sick leave falls below the accumulation cap. (f) CITY will provide EMPLOYEE with written notice of the amount of paid sick leave available. The notice will be provided on the designated pay date with EMPLOYEE’s payment of wages. Sick leave pay will be paid at EMPLOYEE’s hourly rate of pay when sick leave is taken. Sick leave pay will be paid by the payday for the next regular payroll period after the sick leave is taken. 5. RETIREMENT . 5.1 Public Employees Retirement System (PERS). CITY shall provide EMPLOYEE with retirement benefits through the California Public Employees Retirement System (CalPERS). Such benefits are subject to applicable law and regulations, including but not limited to the Public Employees’ Retirement Law (PERL), the Public Employees’ Pension Reform Act (PEPRA) of 2013, and CalPERS rules. For the purpose of CalPERS retirement benefits, EMPLOYEE shall be a “classic member” under PEPRA. CITY shall pay the CITY’s share of CalPERS contribution and EMPLOYEE shall pay her share for participation in CalPERS. 6. TERMINATION. 6.1 Termination by CITY for Convenience and Without Cause . EMPLOYEE is appointed and serves at the pleasure of the COUNCIL as an at will employee. COUNCIL may terminate EMPLOYEE at any time for convenience and without cause. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the COUNCIL and CITY to terminate this Agreement and the employment of EMPLOYEE, with or without cause or for convenience. At the conclusion of EMPLOYEE’S employment whether by resignation or termination either with or without cause, EMPLOYEE shall be entitled to be compensated, subject to Section 4 above, for accrued and unused vacation, sick leave and administrative leave, if any, through the effective date of termination. In the event EMPLOYEE is terminated without cause, at or during such time that EMPLOYEE is willing and able to perform her duties under this AGREEMENT, then in that event, CITY agrees to pay EMPLOYEE a severance equal to one (1) year base salary, less any and all applicable or legally required deductions, provided EMPLOYEE has executed a full and final release of any and all actual or potential claims (including Civil Code Section 1542 release) that EMPLOYEE has or could have against CITY, its officials, employees and agents, acceptable to CITY in form and content. Notwithstanding anything herein to the contrary, the maximum severance EMPLOYEE may receive under this AGREEMENT shall not exceed the limitations provided for in Government Code Section 53260-53264 or other applicable law. 6.2 Termination by EMPLOYEE . EMPLOYEE may terminate EMPLOYEE’S employment for any reason, and at any time, with or without cause, by providing CITY with written notice. In such event, CITY shall have the option, in its complete discretion, to make EMPLOYEE’s termination effective upon any date preceding any notice period provided by EMPLOYEE, provided CITY pays EMPLOYEE all compensation due and owing Page 329 of 350 7 EMPLOYEE through the last day actually worked, plus an amount equal to the Base Salary EMPLOYEE would have earned through the balance of the notice period, which shall not exceed thirty (30) days. 6.3 Termination Obligation. EMPLOYEE agrees that all property, including without limitation, all equipment, tangible property, Proprietary Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by EMPLOYEE incident to EMPLOYEE’S employment are the property of CITY and shall be returned immediately to CITY upon termination of EMPLOYEE’s employment. EMPLOYEE’s obligations under this subsection shall survive the termination of EMPLOYEE’S employment and the expiration or early termination of this Agreement. 6.4 Benefits Upon Termination. All benefits to which EMPLOYEE is entitled under this Agreement shall cease upon EMPLOYEE’s termination in accordance with this Section 6 (Termination), unless expressly continued under this Agreement or unless otherwise required by law. 7. CONFLICT OF INTEREST . 7.1 EMPLOYEE shall not, during the term of this Agreement, individually, as a partner, joint venture, officer or shareholder, invest or participate in any business venture conducting business in the corporate limits of CITY, except for stock ownership in any company whose capital stock is publicly held and regularly traded, without prior approval of the COUNCIL. EMPLOYEE shall also be subject to the conflict of interest provisions of the Government Code of the State of California, CITY’s Municipal Code, and any other conflict of interest regulations applicable to EMPLOYEE’s employment with CITY. For and during the Term of this Agreement and any extension term, EMPLOYEE further agrees that except for a personal residence or residential property acquired or held for- future use as EMPLOYEE’S personal residence, EMPLOYEE will not invest in any other real estate or property improvements within the corporate limits of CITY without the prior consent of the COUNCIL. 8. GENERAL PROVISIONS . 8.1 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be effective upon delivery by hand or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to CITY at the address below or at the last known address maintained in EMPLOYEE’s personnel file. EMPLOYEE agrees to notify CITY in writing of any change in EMPLOYEE’S address during EMPLOYEE’S employment with CITY. Notice of change of address shall be effective only when accomplished in accordance with this Section. CITY’s Notice Address: City of Beaumont 550 East Sixth Street Beaumont, CA 92223 Attn: Mayor Page 330 of 350 8 EMPLOYEE’s Notice Address: ELIZABETH GIBBS [At EMPLOYEE’s address on file with City] 8.2 Indemnification. Subject to, in accordance with, and to the extent provided by the California Tort Claims Act (Government Code Section 810 et seq. including, but not limited to, Sections 825, 995 and 995.2) CITY will indemnify, defend, and hold EMPLOYEE harmless from and against any action, demand, suit, monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or other damages, arising out of any negligent act or omission occurring within the scope of EMPLOYEE’s employment during the Term of this Agreement or any extension term. CITY shall have the discretion to compromise or settle any such claim, demand or action and pay the amount of any settlement or judgment rendered thereon. Notwithstanding the foregoing, CITY shall have no duty to indemnify, defend, or hold EMPLOYEE harmless from any criminal proceeding, or with regard to any civil, criminal or administrative proceeding initiated by EMPLOYEE. 8.3 Bonding. CITY shall bear the full cost of any fidelity or other bonds required of the City Manager under any laws or ordinance. 8.4 Entire Agreement. This Agreement is intended to be the final, complete, and exclusive statement of the terms of EMPLOYEE’s employment by CITY. This Agreement supersedes all other prior and contemporaneous Agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of EMPLOYEE, and it may not be contradicted by evidence of any prior or contemporaneous statements or Agreements. To the extent that the practices, policies, or procedures of CITY, now or in the future, apply to EMPLOYEE and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control. 8.5 Amendments. This Agreement may not be amended except in a written document signed by EMPLOYEE, approved by COUNCIL and signed by the City Attorney. 8.6 Waiver. Failure to exercise any right under this Agreement shall not constitute a waiver of such right. 8.7 Assignment. EMPLOYEE shall not assign any rights or obligations under this Agreement. CITY may, upon prior written notice to EMPLOYEE, assign its rights and obligations hereunder. 8.8 Severability. If any court of competent jurisdiction holds any provision, section or sentence of this Agreement to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect. Page 331 of 350 9 8.9 Governing Law. This Agreement is entered into and to be performed in Riverside County, California and shall be governed by, construed and enforced in accordance with the laws of the State of California. The Parties agree that in the event of any dispute or litigation, venue shall be in Riverside County, California. 8.10 Interpretation . This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the pa rty receiving a benefit or against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended or modified only by an instrument in writing; executed by t he parties to this Agreement and by no other means. Each party waives their future right to claim, contest, or assert that this Agreement was modified, cancelled superseded or changed by any oral Agreement, course of conduct, waiver or estoppel. 8.11 Statutory Obligations; Abuse of Office or Position. Notwithstanding anything to this Agreement in the contrary, pursuant to California Government Code Sections 53243, 53243.1 and 53243.2, which became effective on January 1, 2012, if EMPLOYEE is convicted of a crime involving an abuse of EMPLOYEE’S office or position, all of the following shall apply: (1) if EMPLOYEE is provided with an administrative leave pay pending an investigation, EMPLOYEE shall be required to fully reimburse such amounts paid by CITY; (2) if CITY pays for the criminal legal defense of EMPLOYEE (which would be in its sole discretion, as CITY is generally not obligated to pay for a criminal defense), EMPLOYEE shall be required to fully reimburse such amounts paid by CITY; and (3) if this Agreement is terminated, any cash settlement related to the termination of EMPLOYEE by CITY, said amount shall be fully reimbursed to CITY or shall be void if not yet paid to EMPLOYEE. For this Section, abuse of office or position means either: (1) an abuse of public authority, including waste, fraud, and violation of the law under the color of authority; or (2) a crime against public justice, including a crime described in Title 7 commencing with section 92 of the California Penal Code. 8.12 Incorporation of Recitals. The Parties repeat and incorporate the recitals set forth above as if fully set forth herein. 8.13. State & Federal Law. The terms of this Agreement shall be applied only as consistent with State and Federal law. 8.14 Acknowledgment . EMPLOYEE acknowledges that EMPLOYEE has had the opportunity to consult legal counsel in regard to this Agreement, that EMPLOYEE has read and understands this Agreement, that EMPLOYEE is fully aware of its legal effect, and that EMPLOYEE has entered into it freely and voluntarily and based on EMPLOYEE’S own judgment and not on any representations or promises other than those contai ned in this Agreement. Page 332 of 350 10 “CITY” CITY OF BEAUMONT By:________________________ Julio Martinez, Mayor “EMPLOYEE” ELIZABETH GIBBS By:________________________ Elizabeth Gibbs ATTEST: By:________________________ Elaine Morgan, City Clerk APPROVED AS TO FORM: By:___________________________ John O. Pinkney, City Attorney Page 333 of 350 Page 334 of 350 CITY OF BEAUMONT CITY MANAGER Class specifications are intended to present a descriptive list of the range of duties performed by employees in the class. Specifications are not intended to reflect all duties performed within the job. SUMMARY DESCRIPTION Under policy direction, plans, directs, manages, and oversees the activities and operations of the City of Beaumont; serves as chief executive officer of the City ensuring that public services are delivered in an efficient and effective manner; implements policy decisions made by the City Council; facilitates the development and implementation of City goals and objectives; and provides highly complex administrative support to the City Council. REPRESENTATIVE DUTIES The following duties are typical for this classification. Incumbents may not perform all of the listed duties and/or may be required to perform additional or different duties from those set forth below to address business needs and changing business practices. 1. Assumes full management responsibility for all City operations; plans, directs, manages, and oversees the activities and operations of the City of Beaumont; recommends and administers goals, objectives, polices, and procedures. 2. Directs and participates, with department head cooperation, in the development and administration of the City budget; prepares long-term plans of capital improvements including financing plans; approves the forecast of funds needed for staffing, equipment, materials, and supplies; approves expenditures and implements budgetary adjustments as appropriate and necessary. 3. Establishes, within City policy, appropriate service and staffing levels; monitors and evaluates the efficiency and effectiveness of service delivery methods and procedures; a llocates resources accordingly. 4. Plans, directs, and coordinates, through department heads, the work plan for the City; assigns projects and programmatic areas of responsibility; reviews and evaluates work methods and procedures; meet with management staff to identify and resolve issues. 5. Assess and monitor workload, administrative support systems and internal reporting relationships; identify opportunities for improvement and implement as appropriate. 6. Provide staff assistance to the City Council; prepare, submit, and present staff reports and other necessary correspondence to the City Council including reports of finances and administrative activities; keep City Council advised of financial conditions, program progress, present and future needs of the City; prepare recommendations and advise the Council on matters requiring legislative action. 7. Confer with and represent the City to all departments, residents, taxpayers, businesses, and other individuals, groups, and outside agencies having an interest or potential interest in affairs of City concern; coordinate City activities with those of other cities, counties, outside agencies and organizations in accordance with the City Council policies. Page 335 of 350 CITY OF BEAUMONT City Manager (Continued) 8. Respond to and resolve difficult, complex and sensitive citizen inquiries and complaints; contact departments involved; provide direction and delegate authority as necessary to correct issues; interpret, analyze, defend, and explain City policies, procedures, programs, and activities; negotiate and resolve sensitive and controversial issues; handle public relations dealing with the news media. 9. Attend and participate in professional group meetings; stay abreast of new trends and innovations in the field of municipal management and public administration. 10. Performs related duties, as assigned. QUALIFICATIONS The following generally describes the knowledge and ability required to enter the job and/or be learned within a short period of time in order to successfully perform the assigned duties. Knowledge of: Advanced principles and practices of public administration, including the organization, functions, and problems of municipal government. Operations, services, and activities of a municipality. Government, council, and legislative processes. Principles and practices of municipal budget, preparation, and administration. Current social, political, and economic trends and operating problems of municipal government. Principles and practices of program development and administration. Advanced principles and practices of organization, management, and supervision. Principles and practices of strategic planning. Methods of analyzing, evaluating, and modifying administrative procedures. Decision making techniques. Pertinent federal, state, and local laws, codes, and regulations. Principles of effective public relations and interrelationships with community groups and agencies, private businesses and firms, and other levels of government. Methods and techniques of research, statistical analysis, and report presentations. Ability to: Serve effectively as the administrative agent of the City Council. Provide effective leadership and coordinate the activities of assigned municipal organization. Develop and administer City-wide goals, objectives, and procedures. Analyze and define problems, identify alternative solutions, project consequences of proposed actions, and implement recommendations in support of goals. Identify and respond to sensitive community, organizational, and City Council issues, concerns, and needs. Research, analyze and evaluate new service delivery methods and techniques. Plan, organize, direct, and coordinate the work of staff. Select, supervise, train, and evaluate staff. Prepare clear and concise administrative and financial reports. Prepare and administer large and complex budgets. Interpret and apply federal, state and local policies, laws and regulations. Negotiate and resolve complex issues. Make effective public presentations. Delegate authority and responsibility. Communicate clearly and concisely, both orally and in writing. Establish and maintain effective working relationships with those contacted in the course of work. Page 336 of 350 CITY OF BEAUMONT City Manager (Continued) Education and Experience Guidelines - Any combination of education and experience that would likely provide the required knowledge and abilities is qualifying. A typical way to obtain the knowledge and abilities would be: Education/Training: A Bachelor’s degree from an accredited college or university with major course work in public administration, business administration, planning, or a related field. A Master’s degree in a related field is desirable. Experience: Ten years of progressively responsible administrative or staff experience in municipal government with at least four years of experience in a high level administrative or executive capacity involving responsibility for planning, organizing, directing, and financing a varied work program. PHYSICAL, MENTAL, AND ENVIRONMENTAL REQUIREMENTS: The conditions herein are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential job functions: Must be found to be free from any physical, emotional or mental conditions, as determined by a qualified physician and/or psychologist, which with or without accommodation might affect the ability of the employee to perform essential job functions. The position may require prolonged sitting, standing, walking, reaching, twisting, turning, kneeling, bending, squatting, and stooping in the performance of daily office activities. Additionally, the position requires grasping, repetitive hand movement, and fine coordination in retrieving and entering data using a computer keyboard. Near and far vision is required in order to read work related documents and use the computer. Acute hearing is required when providing phone and personal service. The position requires lifting, carrying, pushing, and/or pulling objects weighing up to 25 pounds. Incumbent must be willing to work shift work, including nights, weekends, and holidays. This classification is not intended to be all-inclusive. An employee may be required to perform other reasonable duties as assigned by management. The City reserves the right, with the concurrence of the department head, to revise or change classification duties and responsibilities as the need arises and as consistent with the meet and confer process. Page 337 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com BILLING DEPARTMENT accounting@sbemp.com REPLY TO: Palm Springs, California April 4, 2023 CITY OF BEAUMONT PROFESSIONAL SERVICES THRU: 3/31/2023 TOTAL DUE: $118,448.10 Sincerely, SBEMP,LLP By: Accounting Department Page 338 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Cazares&Rosa Professional services through: 3/31/2023: Invoice # 78532 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $11,283.00 Page 339 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Deryke Professional services through: 3/31/2023: Invoice # 78531 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $7,078.00 Page 340 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Iloputaife Professional services through: 3/31/2023: Invoice # 78534 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $17,978.10 Page 341 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Ochoa Professional services through: 3/31/2023: Invoice # 78535 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $6,728.50 Page 342 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Reeves&Leggit Professional services through: 3/31/2023: Invoice # 78536 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $577.50 Page 343 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Sandoval Professional services through: 3/31/2023: Invoice # 78537 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $55.00 Page 344 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Thomas Family Professional services through: 3/31/2023: Invoice # 78538 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $8,442.50 Page 345 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Urban Logic Professional services through: 3/28/2023: Invoice # 78545 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $2,612.50 Page 346 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont*Wright Professional services through: 3/31/2023: Invoice # 78540 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $29,452.50 Page 347 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont-Gen Lit Professional services through: 3/31/2023: Invoice # 78541 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $6,545.00 Page 348 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont-OverRetainer Professional services through: 3/31/2023: Invoice # 78543 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $20,195.50 Page 349 of 350 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP Palm Springs, CA T (760) 322-2275 Indian Wells, CA T (760) 322- 9240 Orange County, CA T (714) 435-9591 San Diego, CA T (619) 501-4540 New Jersey T (609) 955-3393 New York T (212) 829-4399 www.sbemp.com 1800 E Tahquitz Canyon Way Palm Springs, CA 92262 Fed. ID #33-0833010 Telephone 760-322-2275 Facsimile 760-322-2107 April 4, 2023 City of Beaumont E-MAIL INVOICES Our file no: City of Beaumont-Retainer Professional services through: 3/31/2023: Invoice # 78544 Amount BALANCE DUE – PLEASE SUBMIT PAYMENT: $7,500.00 Page 350 of 350