Agenda packet — Escondido City Council, September 28, 2022 (part 1 of 2)

CITY of ESCONDIDO
Council Meeting Agenda
WEDNESDAY, SEPTEMBER 28, 2022
4:30 PM - Closed Session (Parkview Conference Room)
5:00 PM - Regular Session
Escondido City Council Chambers, 201 North Broadway, Escondido, CA 92025

WELCOME TO YOUR CITY COUNCIL MEETING
We welcome your interest and involvement in the legislative process of Escondido. This agenda includes information about topics coming before the City Council and the action recommended by City staff.

MAYOR
Paul McNamara

DEPUTY MAYOR
Tina Inscoe (District 2)

COUNCILMEMBERS
Consuelo Martinez (District 1)
Joe Garcia (District 3)
Michael Morasco (Disctrict 4)

CITY MANAGER
Sean McGlynn

CITY ATTORNEY
Michael McGuinness

CITY CLERK
Zack Beck

HOW TO WATCH
The City of Escondido provides three ways to watch a City Council meeting:

In Person On TV Online
201 N. Broadway Cox Cable Channel 19 and U-verse Channel 99 www.escondido.org 1 Wednesday, September 28, 2022

HOW TO PARTICIPATE
The City of Escondido provides two ways to communicate with the City Council during a meeting:

In Person In Writing
Fill out Speaker Slip and Submit to City Clerk https://escondido-ca.municodemeetings.com

ASSISTANCE PROVIDED
If you need special assistance to participate in this meeting, please contact our ADA Coordinator at 760-839-4869.

Notification 48 hours prior to the meeting will enable to city to make reasonable arrangements to ensure accessibility. Listening devices are available for the hearing impaired – please see the City Clerk. 2 Wednesday, September 28, 2022

CLOSED SESSION
4:30 PM

CALL TO ORDER

1. Roll Call: Garcia, Inscoe, Martinez, Morasco, McNamara

ORAL COMMUNICATIONS
In addition to speaking during particular agenda items, the public may address the Council on any item which is not on the agenda provided the item is within the subject matter jurisdiction of the City Council. State law prohibits the Council from discussing or taking action on such items, but the matter may be referred to the City Manager/staff or scheduled on a subsequent agenda. Speakers are limited to only one opportunity to address the Council under Oral Communications.

CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – PENDING LITIGATION (Government Code section 54956(d)(1)) a. Case Name: Building Industry Association of San Diego County v. City of Escondido Case No.: San Diego Superior Court Case No. 37-2021-00008423-CU-MC-NC

ADJOURNMENT
3 1.

Wednesday, September 28, 2022

REGULAR SESSION
5:00 PM Regular Session

MOMENT OF REFLECTION
City Council agendas allow an opportunity for a moment of silence and reflection at the beginning of the evening meeting. The City does not participate in the selection of speakers for this portion of the agenda, and does not endorse or sanction any remar ks made by individuals during this time. If you wish to be recognized during this portion of the agenda, please notify the City Clerk in advance.

FLAG SALUTE
The City Council conducts the Pledge of Allegiance at the beginning of every City Council meeting.

CALL TO ORDER
Roll Call: Garcia, Inscoe, Martinez, Morasco, McNamara

PROCLAMATIONS
National Fire Prevention Week, October 9-15, 2022

CLOSED SESSION REPORT

CONSENT CALENDAR
Items on the Consent Calendar are not discussed individually and are approved in a single motion. However, Council members always have the option to have an item considered separately, either on their own request or at the request of staff or a member of the public.

1. AFFIDAVITS OF PUBLICATION, MAILING, AND POSTING (COUNCIL/RRB) – 4 Wednesday, September 28, 2022

2. APPROVAL OF WARRANT REGISTER (COUNCIL) -
Request the City Council approve the City Council and Housing Successor Agency warrant numbers:
366781 – 366905 dated September 14, 2022.

Staff Recommendation: Approval (Finance Department: Christina Holmes)

3. APPROVAL OF MINUTES: Regular Meeting of September 14, 2022

4. APPROVAL OF CALPERS INDUSTRIAL DISABILITY RETIREMENT FOR FIRE CAPTAIN JUSTIN P. MILLER Request the City Council to adopt Resolution No. 2022-138, approving the California Public Employees’ Retirement System (“CalPERS”) Industrial Disability Retirement for Fire Captain Justin P. Miller.

Staff Recommendation: Approval (Human Resources Department: Jessica Perpetua) Presenter: Jessica Perpetua, Director of Human Resources a) Resolution No. 2022-138

5. 2023 HOLIDAY SCHEDULE
Request the City Council adopt Resolution No. 2022-127 to designate the dates that City offices will be closed in the calendar year 2023 for holiday observances.

Staff Recommendation: Approval (Human Resources Department: Jessica Perpetua) Presenter: Jessica Perpetua, Director of Human Resources a) Resolution No. 2022-127

CONSENT RESOLUTIONS AND ORDINANCES (COUNCIL/RRB)
The following Resolutions and Ordinances were heard and acted upon by the City Council/RRB at a previous City Council/Mobilehome Rent Review meeting. (The title of Ordinances listed on the Consent Calendar are deemed to have been read and further reading waived.)

6. AN AMENDMENT TO THE ESCONDIDO MUNICIPAL AND ZONING CODES TO CREATE OBJECTIVE DEVELOPMENT STANDARDS FOR THE IMPLEMENTATION OF SENATE BILL 9 (PLANNING CASE NO.

PL22-0363)
Approved on September 14, 2022 with a vote of 5/0.
a) Ordinance No. 2022-18 (Second Reading and Adoption)

5 Wednesday, September 28, 2022

PUBLIC HEARINGS

7. APPEAL OF A CONDITION OF APPROVAL APPLIED TO A MAJOR PLOT PLAN REQUIRING FUNDING OF

ONGOING MUNICIPAL SERVICES REQUIRED BY THE PROJECT
Request the City Council c onsider an appeal of a condition of approval requiring funding of ongoing municipal services required for a 54 -unit apartment project located at 1401 S. Escondido Boulevard and either a) adopt Resolution No. 2022-139, denying an appeal and upholding a condition of approval; or b) adopt Resolution No 2022-140, granting the appeal and waiving the condition of approval.

Staff Recommendation: Denial of appeal (Development Services Department: Andrew Firestine) Planning Commission Recommendation: Granting of appeal (Vote: 4-2-0) Presenter: Adam Finestone, City Planner
a) Resolution No. 2022-139
b) Resolution No. 2022-140

8. APPEAL OF A CONDITION OF APPROVAL APPLIED TO A MAJOR PLOT PLAN REQUIRING FUNDING O F

ONGOING MUNICIPAL SERVICES REQUIRED BY THE PROJECT
Request the City Council consider an appeal of a condition of approval requiring funding of ongoing municipal services required for a 48 -unit apartment project located at 1600 S. Escondido Boulevard and either a) adopt Resolution No. 2022-141, denying an appeal and upholding a condition of approval; or b) adopt Resolution No 2022-142, granting the appeal and waiving the condition of approval.

6 Wednesday, September 28, 2022

CURRENT BUSINESS

9. APPROVAL OF A RIGHT-OF-WAY ENCROACHMENT AGREEMENT WITH SIFI NETWORKS ESCONDIDO, LLC Request the City Council approve to adopt Resolution No. 2022 -143, awarding the Right -Of-Way Encroachment Agreement to SiFi Networks, Escondido LLC (“SiFi” ) to allow for the installation of a citywide fiber communications system (“Project”), and authorizing the Mayor to execute the Agreement.

Staff Recommendation: Approval (Economic Development: Jennifer Schoeneck; Information Systems Department: Robert Van De Hey; Engineering Services: Julie Procopio) Presenters: Jennifer Schoeneck, Deputy Director of Economic Development, Rob Van De Hey, Chief Information Officer, and Julie Procopio, City Engineer
a) Resolution No. 2022-143

10. LEGAL UPDATE ON SAFE SIDEWALK VENDING ACT (AB 946) AND CONSIDERATION OF LOCAL

REGULATIONS
Request the City Council receive and file a report and give direction to staff on future actions, if any.

Staff Recommendation: Provide Direction (City Attorney: Michael R. McGuinness) Presenter: Michael R. McGuinness, City Attorney

FUTURE AGENDA

11. FUTURE AGENDA
The purpose of this item is to identify issues presently known to staff or which members of the City Council wish to place on an upcoming City Council agenda. Council comment on these future agenda items is limited by California Government Code Section 54954.2 to clarifying questions, brief announcements, or requests for factual information in connection with an item when it is discussed.

Staff Recommendation: None (City Clerk's Office: Zack Beck)

COUNCILMEMBERS SUBCOMMITTEE REPORTS AND OTHER REPORTS
CITY MANAGER’S WEEKLY ACTIVITY REPORT
The most current information from the City Manager regarding Economic Development, Capital Improvement Projects, Public Safety, and Community Development. This report is also available on the City’s website, www.escondido.org.

7 Wednesday, September 28, 2022

ADJOURNMENT

UPCOMING MEETING SCHEDULE
Wednesday, October 12, 2022 4:00 & 5:00 PM Regular Meeting, Council Chambers Wednesday, October 19, 2022 4:00 & 5:00 PM Regular Meeting, Council Chambers

SUCCESSOR AGENCY
Members of the Escondido City Council also sit as the Successor Agency to the Community Development Commission, Escondido Joint Powers Financing Authority, and the Mobilehome Rent Review Board.

8 Consent Item No. 1 September 28, 2022

A F F I D A V I T S

I T E M

P O S T I N G –

APPEAL OF PLOT PLAN APPROVAL FOR 1401 S.

ESCONDIDO BOULEVARD (PL21-0304)

APPEAL OF PLOT PLAN APPROVAL FOR 1600 S.

ESCONDIDO BOULEVARD (PL22-0032)
9 Item1.
10 Item1.
11 Item1.

STAFF REPORT

September 28, 2022
File Number 0400-40

SUBJECT

APPROVAL OF WARRANT REGISTER (COUNCIL)

DEPARTMENT
Finance

RECOMMENDATION
Request approval for City Council and Housing Successor Agency warrant numbers 366781 – 366905 dated September 14, 2022.

Staff Recommendation: Approval (Finance Department: Christina Holmes)

FISCAL ANALYSIS
The total amount of the warrants for the period of September 8 – September 14, 2022, is $5,640,460.30.

BACKGROUND

The Escondido Municipal Code Section 10-49 states that warrants or checks may be issued and paid prior to audit by the City Council, provided the warrants or checks are certified and approved by the Director of Finance as conforming to the current budget. These warrants or checks must then be ratified and approved by the City Council at the next regular Council meeting.

12 Item2.

September 14, 2022 Escondido City Council Minutes Page 1 of 6

REGULAR SESSION
5:00 PM Regular Session
September 14, 2022

MOMENT OF REFLECTION
City Council agendas allow an opportunity for a moment of silence and reflection at the beginning of the evening meeting. The City does not participate in the selection of speakers for this portion of the agenda, and does not endorse or sanction any remarks made by individuals during this time. If you wish to be recognized during this portion of the agenda, please notify the City Clerk in advance.

FLAG SALUTE
The City Council conducts the Pledge of Allegiance at the beginning of every City Council meeting.

CALL TO ORDER
Roll Call: Garcia, Inscoe, Martinez, Morasco, McNamara

ORAL COMMUNICATIONS
Gary Odaffer – Expressed concerns regarding traffic on Rock Springs Road.

CONSENT CALENDAR
Motion: Morasco; Second: Inscoe; Approved: 5-0

1. AFFIDAVITS OF PUBLICATION, MAILING, AND POSTING (COUNCIL/RRB) -

2. APPROVAL OF WARRANT REGISTER (COUNCIL) -
Request the City Council approve the City Council and Housing Successor Agency warrant numbers:
366075 – 366316 dated August 17, 2022
366317 – 366519 dated August 24, 2022
366520 – 366706 dated August 31, 2022
Staff Recommendation: Approval (Finance Department: Christina Holmes)

3. APPROVAL OF MINUTES: Regular Meetings of August 17, 2022 and August 24, 2022 13 Item3.

September 14, 2022 Escondido City Council Minutes Page 2 of 6

4. AWARD OF CONTRACT FOR CONSTRUCTION OF THE BEAR VALLEY PKWY AND MARY LANE

TRAFFIC SIGNAL MODIFICATION
Request the City Council approve to adopt Resolution No. 2022-126 awarding the construction contract to Lekos Electric, Inc., determined to be the lowest responsive and responsible bidder and authorizing the Mayor to execute, on behalf of the City, a Public Improvement Agreement in the amount of $327,073 for the Bear Valley Pkwy and Mary Lane Traffic Signal Modification Project (“Project”). (File Number 0600-10; A-3427)
Staff Recommendation: Approval (Development Services: Andrew Firestine, Director of Development Services)
Presenter: Julie Procopio, City Engineer
a) Resolution No. 2022-126

5. AWARD CONSULTING SERVICES AGREEMENT TO KIMLEY-HORN & ASSOCIATES, INC. FOR THE

ENGINEERING DESIGN OF GRAND AVENUE VISION PHASE II PROJECT Request the City Council approve to adopt Resolution No. 2022 -122, authorizing the Mayor to execute, on behalf of the City, a consulting services agreement with Kimley-Horn and Associates, Inc. for engineering design of the Grand Avenue Vision Phase II Project in the amount of $362,500. (File Number 0600-10; A-3428)
Staff Recommendation: Approval (Andrew Firestine, Development Services Director and Julie Procopio, City Engineer)
Presenter: Jonathan Schauble, Principal Engineer
a) Resolution No. 2022-122

6. CONSULTING AGREEMENT FOR THE TREATED WATER INTERCONNECT PROJECT Request the City Council approve to adopt Resolution No. 2022-120, authorizing the Mayor to execute, on behalf of the City, a Consulting Agreement with Kennedy/Jenks Consultants, Inc., in the amount of $212,282 for engineering services for the Treated Water Interconnect Project (“Project”). (File Number 0600-10; A-3429)
Staff Recommendation: Approval (Utilities Department: Christopher W. McKinney, Deputy City Manager/Director of Utilities)
Presenter: Angela Morrow, Deputy Director of Utilities
a) Resolution No. 2022-120
14 Item3.

September 14, 2022 Escondido City Council Minutes Page 3 of 6

7. FISCAL YEAR 2021 -2022 REGIONAL REALIGNMENT RESPONSE GRANT Request the City Council approve to adopt Resolution No. 2022 -128, authorizing the Chief of Police to accept a FISCAL YEAR 2021-22 Regional Realignment Response Grant in the amount of $80,000 from the State of California Board of Community Corrections; authorize t he Chief of Police or his designee to execute grant documents on behalf of the City; and approve budget adjustments needed to spend grant funds. Funding was provided by Assembly Bill 118 and Senate Bill 89, initiatives to reduce state prison overcrowding and support local law enforcement efforts to efficiently manage offenders and parole -violators. Escondido’s allocation is used to support regional and local enforcement operations. Funds must be used for police officer overtime and associated overhead. (File Number 0480-70) Staff Recommendation: Approval (Escondido Police Department: David Cramer) Presenter: David Cramer, Interim Chief of Police
a) Resolution No. 2022-128

8. FISCAL YEAR 2021 STATE HOMELAND SECURITY GRANT PROGRAM AND BUDGET

ADJUSTMENT
Request the City Council approve to adopt Resolution No. 2022-135, authorizing the Escondido Police Department to accept FISCAL YEAR 2021 State Homeland Security Grant funds in the amount of $114,919; authorize the Chief of Police or his designee to execute grant documents on behalf of the City; and approve budget adjustments needed to spend grant funds. The County of San Diego Office of Emergency Services has authorized the City of Escondido to spend its funds on equipment to support regional public safety projects. The Fire Department will receive $79,000 and the Police Department will receive $35,919 from this award. (File Number 0480-70)
Staff Recommendation: Approval (Police Department: David Cramer) Presenter: David Cramer, Interim Chief of Police; Rick Vogt, Fire Chief a) Resolution No. 2022-135

15 Item3.

September 14, 2022 Escondido City Council Minutes Page 4 of 6

9. RESOLUTION OF INTENT TO VACATE A PORTION OF VALLEY BOULEVARD, GRAPE STREET, FIG

STREET AND ADJACENT ALLEY
Request the City Council approve Resolution No. 2022-125 to set October 12, 2022 as the date to conduct a hearing to consider authorizing the street vacation for portions of the public streets known as Valley Parkway, Grape Street, Fig Street and adjoining alley. (File Number 0690-40)
Staff Recommendation: Approval (City Manager's Department: Jennifer Schoeneck, Director of Economic Development)
Presenter: Vince McCaw, Real Property Manager
a) Resolution No. 2022-125

PUBLIC HEARINGS

10. AN AMENDMENT TO THE ESCONDIDO MUNICIPAL AND ZONING CODES TO CREATE OBJECTIVE DEVELOPMENT STANDARDS FOR THE IMPLEMENTATION OF SENATE BILL 9 (PLANNING CASE NO. PL22-0363)
Request that the City Council consider the introduction and ad option of Ordinance No. 2022 - 18, approving an amendment to the Escondido Municipal and Zoning Codes to create objective development standards for the local implementation of Senate Bill 9. (File Number 0810-20) Staff Recommendation: Approval (Development Services: Andrew Firestine) Presenter: Sean Nicholas, Principal Planner
a) Ordinance No. 2022-18 (First Reading and Introduction) Motion: Martinez; Second: Garcia; Approved: 5-0

16 Item3.

September 14, 2022 Escondido City Council Minutes Page 5 of 6

CURRENT BUSINESS

11. APPOINTMENT TO THE SAN DIEGO COUNTY WATER AUTHORITY BOARD OF DIRECTORS Request the C ity Council appoint a representative to serve on the San Diego County Water Authority Board of Directors. (File Number 0610-55)
Staff Recommendation: Approval (City Clerk’s Office: Zack Beck) Presenter: Zack Beck, City Clerk
Motion to appoint Councilmember Martinez to the San Diego County Water Authority Board of Directors: McNamara; Second: Martinez; Approved: 5-0

12. REIDY CREEK GOLF COURSE MANAGEMENT AND CONCESSION AGREEMENTS Request the City Council adopt Resolution No. 2022 -124, authorizing the Mayor to execute a Golf Course Management Agreement and a Lease and Concession Agreement with Escondido Golf, LLC, Inc. for the management and operation of Reidy Creek Golf Course. (File Number 0600- 10; A-3430, A-3431)
Staff Recommendation: Approval (Communications and Community Services: Joanna Axelrod, Deputy City Manager/Director of Communications and Community Services) Presenter: Vince McCaw, Real Property Manager
Escondido Golf, LLC representative: Tom Bugbee
a) Resolution No. 2022-124
Motion: Morasco; Second: Inscoe; Approved: 5-0

FUTURE AGENDA

13. FUTURE AGENDA
The purpose of this item is to identify issues presently known to staff or which members of the City Council wish to place on an upcoming City Council agenda. Council comment on these future agenda items is limited by California Government Code Section 54954.2 to clarifying questions, brief announcements, or requests for factual information in connection with an item when it is discussed.

Staff Recommendation: None (City Clerk's Office: Zack Beck)

COUNCILMEMBERS SUBCOMMITTEE REPORTS AND OTHER REPORTS
17 Item3.

September 14, 2022 Escondido City Council Minutes Page 6 of 6

CITY MANAGER’S WEEKLY ACTIVITY REPORT
The most current information from the City Manager regarding Economic Development, Capital Improvement Projects, Public Safety, and Community Developme nt. This report is also available on the City’s website, www.escondido.org.

ORAL COMMUNICATIONS
None.

ADJOURNMENT

Mayor McNamara adjourned the meeting at 5:55 p.m.

______________________________ _______________________________

MAYOR CITY CLERK

18 Item3.

STAFF REPORT

September 28, 2022
File Number 0170-57

SUBJECT
APPROVAL OF CALPERS INDUSTRIAL DISABILITY RETIREMENT FOR FIRE CAPTAIN JUSTIN P. MILLER

DEPARTMENT
Human Resources

RECOMMENDATION
Request that the City Council adopt Resolution No. 2022-138, approving the California Public Employees’ Retirement System (“CalPERS”) Industrial Disability Retirement for Fire Captain Justin P. Miller.

Staff Recommendation: Approval (Human Resources: Jessica Perpetua) Presenter: Jessica Perpetua

FISCAL ANALYSIS
None.

PREVIOUS ACTION
None.

BACKGROUND
Mr. Miller filed for Industrial Disability Retirement on June 27, 2022, as a 46 year old Fire Captain. He has been employed by the City of Escondido for 20 years. The basis for Mr. Miller’s Industrial Disability Retirement application is confirmed by medical reports from Dr. Richard Greenfield. Mr. Miller’s condition is orthopedic in nature ( right elbow ). Accordingly, Mr. Miller is incapacitated within the meaning of the Public Employee’s Retirement Law for performance of his usual and customary duties in the position of Fire Captain.

Under state law, CalPERS requires the City Council to adopt a resoluti on stating that competent medical evidence supports the granting of an Industrial Disability Retirement. Based on medical evidence, staff recommends the City Council adopt Resolution No. 2022-138, approving the CalPERS Industrial Disability Retirement for Captain Justin P. Miller to be effective September 29, 2022.

RESOLUTIONS
a. Resolution No. 2022-138

19 Item4.

RESOLUTION NO. 2022-138

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, APPROVING THE CALPERS

INDUSTRIAL DISABILITY RETIREMENT FOR FIRE
CAPTAIN JUSTIN P. MILLER

WHEREAS, the City of Escondido (the “City”) is a contracting agency of the California Public Employees’ Retirement System (“CalPERS”); and
WHEREAS, the California Public Employees’ Retirement Law (Government Code Section § 20000 et seq.) (“California law”) requires that the City determine whether an employee classified as a local safety member is disabled for purpose of the California law and whether such disability is “industrial” within the meaning of such law; and
WHEREAS, Justin P. Miller (“Employee”) filed an application with CalPERS on June 27, 2022, for an Industrial Disability Retirement due to an orthopedic injury of the right elbow; and WHEREAS, the Employee is employed by the City in the position of Fire Captain; and WHEREAS, the City Council of the City of Escondido has reviewed the medical and other evidence relevant to this industrial disability.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California as follows:

1. That the above recitations are true.

2. That the City Council does hereby find and determine that the Employee is incapacitated within the meaning of the California Public Employees’ Retirement Law for performance of his duties in the position of Fire Captain.

3. That the City Council certifies Resolution No. 2022-138 in accordance with Government Code Section § 21156, that this determination was made on the basis of competent medical opinion, and was not used as a substitute for the disciplinary process. 20 Item4.

4. That the Employee had filed a Workers’ Compensation claim for his disabling condition. The City accepted the Employee’s Workers’ Compensation claim.

5. That neither Employee or the City of Escondido has applied to the Worker’s Compensation Appeals Board for a determination pursuant to Government Code Section § 21166 whether such disability is industrial.

6. That the Employee’s retirement date will be effective September 29, 2022, and his last day on paid status is September 28, 2022.

7. That there is not a possibility of third-party liability.

8. That the City will make monthly Advanced Disability Pens ion Payments of $ 5,295.35, beginning October 1, 2022, until CalPERS begins making retirement payments. The City will also make a one- time advance disability payment of $353.02, for the remaining twenty days of September 2022. CalPERS will send the reimbursement check to: City of Escondido Workers’ Compensation Department 201 N. Broadway Escondido, CA 92025.

9. That the primary disabling condition i s an orthopedic injury to his right elbow, and arose out of and in the course of employment.

10. That there is competent medical opinion certifying the disabling condition to be permanent.

11. That based on information and belief, and on the information provided by City staff, the City Council certifies under penalty of perjury that all statements in this Resolution are true and correct. 21 Item4.

STAFF REPORT

September 28, 2022
File Number 0700-80

SUBJECT
2023 HOLIDAY SCHEDULE

DEPARTMENT
Human Resources

RECOMMENDATION
Request the City Council adopt Resolution No. 2022-127 to designate the dates that City offices will be closed in the calendar year 2023 for holiday observances.

Staff Recommendation: Approval (Human Resources: Jessica Perpetua, Director of Human Resources) Presenter: Jessica Perpetua, Director of Human Resources

FISCAL ANALYSIS
None.

PREVIOUS ACTION
Each year the City Council adopts a resolution, as required by State law, to designate the days that City offices will be closed for holiday observances.

BACKGROUND
Holidays are considered to be an employee benefit and are, therefore, a part of the negotiation process with our various bargaining units. There are ten recognized holidays each year.

RESOLUTIONS
a. Resolution No. 2022-127
b. Resolution No. 2022-127 Exhibit “A”

22 Item5.

RESOLUTION NO. 2022-127

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, DESIGNATING HOLIDAYS ON

WHICH CITY OFFICES SHALL BE CLOSED FOR THE
CALENDAR YEAR 2023

WHEREAS, Section 6700 of the California Government Code designates days that are holidays in the State of California (“State”); and
WHEREAS, Section 6702 of the California Government Code provides that City of Escondido (“City”) offices shall be closed on designated State holidays unless otherwise provided by the City; and WHEREAS, the City Council desires and deems it to be in the best public interest to designate those holidays on which City offices will be closed.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California:

1. That the above recitations are true.

2. That the public offices of the City shall be closed on the following dates set forth in Exhibit “A”, which is attached to this Resolution and incorporated by this reference.

23 Item5.

Resolution No. 2022-127
Exhibit “A”

Page 1 of 2 ends

City Recognized Holidays Year 2023

New Year’s Day Sunday, January 1, 2023
Observed on Monday, January 2, 2023

Martin Luther King Day Monday, January 16, 2023

Presidents’ Day Monday, February 20, 2023

Memorial Day Monday, May 29, 2023

Independence Day Tuesday, July 4, 2023

Labor Day Monday, September 4, 2023

Veterans’ Day Saturday, November 11, 2023
Observed on Friday, November 10, 2023

Thanksgiving Day Thursday, November 23, 2023

Day after Thanksgiving Friday, November 24, 2023

Christmas Day Monday, December 25, 2023

In addition to the above, the following facilities also have these modified hours:

Library
- Friday, September 15: closed for staff training
- Wednesday, November 22: close @ 5:00 p.m.
- Saturday, December 23: close @ 5:00 p.m.
- Saturday, December 30: close @ 5:00 p.m.

East Valley Community Center
- Sunday, January 1: closed
- Sunday, April 9: closed
- Tuesday, October 31: close @ 5:00 p.m.
- Friday, November 10: open 10:00 a.m. – 3:00 p.m.
- Saturday, November 11: closed
- Wednesday, November 22: close @ 3:00 p.m.
- Saturday, December 23 - Monday, January 1: closed for floor and carpet maintenance

Escondido Sports Center
- Sunday, January 1: closed
- Monday, January 2: open 3:00 p.m. – 7:00 p.m.
- Monday, January 16: open 3:00 p.m. – 7:00 p.m.
- Monday, February 20: open 3:00 p.m. – 7:00 p.m.
24 Item5.

Resolution No. 2022-127
Exhibit “A”

Page 2 of 2 ends

- Sunday, April 9: closed
- Tuesday, October 31: open 3:00 p.m. – 7:00 p.m.
- Saturday, November 11: open 8:00 a.m. – 10:00 p.m.
- Wednesday, November 22: open 3:00 p.m. – 7:00 p.m.
- Friday, November 24: open 3:00 p.m. – 7:00 p.m.
- Sunday, December 24: closed
- Sunday, December 31: closed

Park Avenue Community Center
- Sunday, January 1: closed
- Sunday, April 9: closed
- Wednesday, November 22: close @ 3:00 p.m.
- Friday, December 22: close @ 3:00 p.m.
- Saturday, December 23: closed
- Sunday, December 24: closed
- Friday, December 29 @ 3:00 p.m.
- Saturday, December 30: closed
- Sunday, December 31: closed

25 Item5.

ORDINANCE NO. 2022-18

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, APPROVING AMENDMENTS

TO THE ESCONDIDO MUNICIPAL AND ZONING CODES
FOR THE IMPLEMENTATION OF SENATE BILL 9.

WHEREAS, the City of Escondido Planning and Engineering Divisions and City Attorney’s Office have reviewed the Government Code sections created by the adoption of Senate Bill 9 (“ SB 9 ”), and developed objective development standards to efficiently implement the requirements in the City of Escondido; and
WHEREAS, to create the local provisions , Planning Division staff identified the need to amend Articles 1 (General Provisions and Definitions ), 6 (Residential Zones ), and 61 (Administration and Enforcement) of the Escondido Zoning Code , and Sections 23-119 (Public dedication of rights -of-way required), 23 -120 (Public improvements required), 23 -47 (Undergrounding required), and 32.204.02 (requirements) of the Escondido Municipal Code; and
WHEREAS, the Planning Commission of the City of Escond ido, on July 12 , 202 2, held a public hearing to consider the Zoning Code Amendments and unanimously recommended approval of the items as provided in Exhibit “B”; and
WHEREAS, pursuant to the California Environmental Quality Act (“ CEQA”) and the CEQA Guidelines (Title 14 of California Code of Regulations, Section 15000 et. seq.), the City is the Lead Agency for the Project, as the public agency with the principal responsibility for approving the proposed Amendments; and
WHEREAS, on August 24, 2022, and September 14, 2022, the City Council of the City of Escondido did hold duly noticed public hearings as prescribed by law. At said hearings, the City Council received and considered the reports and recommendations of the Planning Commission and City staff, and gave all 26 Item6.

STAFF REPORT

September 28, 2022
File Number 0610-75

SUBJECT

APPEAL OF A CONDITION OF APPROVAL APPLIED TO A MAJOR PLOT PLAN REQUIRING FUNDING OF

ONGOING MUNICIPAL SERVICES REQUIRED BY THE PROJECT

DEPARTMENT
Development Services Department, Planning Division

RECOMMENDATION
It is requested that the City Council consider an appeal of a condition of approval requiring funding of ongoing municipal services required for a 54-unit apartment project located at 1 401 S. Escondido Boulevard and either a) adopt Resolution No. 2022-139, denying an appeal and upholding a condition of approval; or b) adopt Resolution No 2022 -140, granting the appeal and waiving the condition of approval.

Staff Recommendation: Denial of appeal (Development Services Department: Andrew Firestine) Planning Commission Recommendation: Granting of appeal (Vote: 4-2-0) Presenter: Adam Finestone, City Planner

BACKGROUND
An administrative approval for a Plot Plan, inclusive of a density bonus, was issued on August 24, 2022, for a 54-unit apartment complex located at 1 401 S. Escondido Blvd. (included as Attachment “1” to this staff report). The project includes six units that will be deed -restricted for very-low income households.

The applicant appealed the inclusion of the condition of approval which requires the developer to fund ongoing operational costs of providing municipal services required for the project. The appeal , a copy of which is included as Atta chment “2” to this report, is based on the premise that density bonus projects are entitled to certain incentives and waivers, in addition to an increase in allowable density, in order to make a project financially feasible. (All other aspects of the project have been approved and not subject to the appeal.)

FISCAL ANALYSIS
As a part of the City of Escondido’s ongoing effort to address projected budget shortfalls, the City conducted a Fiscal Impact Analysis (“FIA”) for new residential development in 2019. The FIA determined the per capita cost of providing municipal services for new residential development involving Police, Fire, Public Works, Community Services, and General Services (support departments) exceeds the anticipated 27 Item7.

revenue received, including property taxes, property tax in lieu of vehicle license fees, intergovernmental, property transfer tax, fines, forfeitures, permits, licenses, and sales tax generated by new residents. Based on these findings, the current structural budget deficit is anticipated to increase with each new residential development project approved. Below is a summary of the FIA findings by development type for a typical 5-acre site at the time the analysis was conducted:

Single Family Small Lot Single
Family
Townhomes Apartment/Condos
Project Size (5 -acre
site)
25 units 75 units 125 units 200 units
Avg. Density 5 units/acre 15 units/acre 25 units/acre 40 units/acre Revenue Generate $52,900 $128,800 $157,900 $204,700
Cost to Provide
Municipal Services
$66,300 $184,500 $248,500 $361,200
Annual Unfunded
Cost
$13,400 $55,700 $90,600 $156,500
Unfunded Cost/Unit $536 $743 $725 $783
City policy currently requires all residential development to offset its impact on the general fund by providing an ongoing funding source to pay for public services demanded by the project. The following is a brief history of the creation, purpose, and implementation of that policy:

On June 12, 2019, the City Council directed staff to investigate all options to address the structural budget deficit to ensure the budget deficit does not grow as the City develops, including evaluating the feasibility of a Citywide Services Community Facilities District (“CFD”) as a streamlined means for projects to offset their ongoing impact to the general fund.

On April 8, 2020, the City Council indicated its intent to require new residential development to offset the ongoing costs of providing public services.

On May 13, 2020, the City Council held a duly noticed public hearing and adopted Resolution No. 2020 - 44 (Resolution of Formation) establishing CFD 2020-1, the Citywide Services CFD. 28 Item7.

On September 16, 2020, the City Council adopted Resolution No. 2020-115 annexing five projects with 66 units into CFD 2020-1 creating the second (2) zone of the Services CFD (Zone 2020-2).

On September 23, 2020, the City Council restated its intent to require new residential development to offset the ongoing costs of providing public services, specifically noting that the requirement be applied to any project approved after May 13, 2020.

On October 21, 2020, the City Council adopted Resolution No. 2020-147 annexing a 42-unit project located at 2608 S. Escondido Blvd. into CFD 2020-1 and creating the third (3) zone of the Services CFD (Zone 2020- 03).

On November 18, 2020, the City Council adopted Resolution No. 2020 -160 annexing two (2) projects containing 21 units into CFD 2020-1 creating the fourth zone of the Services CFD (Zone 2020-04).

On July 21, 2021, the City Council adopted Resolution No. 2021-77 approving the special tax rate for CFD 2020-1 (Public Services) for fiscal year 2021/22.

On September 15, 2021, the City Council adopted Resolution No. 2021 -130 annexing three (3) projects containing 65 units into CFD 2020-1 creating the fifth (5) zone of the Services CFD (Zone 2020-5).

On March 2, 2022, the City Council adopted Resolution No. 2022-14 annexing two (2) projects containing 44 units into CFD 2020-1 creating the sixth (6) zone of the Services CFD (Zone 2020-6).

On July 20, 2022, the City Council adopted Resolution No. 2022-87 approving the special tax rate for CFD 2020-1 (Public Services) for fiscal year 2022/23.

Council policy requires that all new residential development off -site their impacts to ongoing municipal services. This requirement is identified as Condition of Approval A.11 in the Letter of Conditional Approval dated August24, 2022, and included as Att achment “a” to this staff report. Specifically, the condition states:

Costs of Municipal Services. In accordance with the General Plan, the Developer shall fund all on - going operational costs of providing municipal services required for the Project, the amount of such funding shall be in accordance with the special tax levy adopted annually by the City Council based on the project density, unless another amount is approved by the City Council at the time of Project approval. Such funding shall occur thro ugh either an agreement to form or annex into a Community Facilities District (“CFD”) or the establishment of another lawful funding mechanism reasonably acceptable to the City (“Public Services Funding Agreement”). Projects that elect to annex into the Services CFD shall submit consent forms prior to the first permit issuance if they have not done so already. The provisions of the Public Services Funding Agreement shall specify any terms and limitations necessary to implement the CFD or other funding mechanism to offset the impacts to public services associated with the project. The City Manager, or City Manager’s designee, shall be authorized 29 Item7.

to approve and execute the Public Services Funding Agreement, and the Public Services Funding Agreement shall be f inalized prior to the City’s issuance of any permit for the Project. The condition cited above is consistent with existing City Council policy requiring all residential development to offset its impact on the general fund by providing an ongoing funding source to pay for public services demanded by the project.

The condition provides an option for the applicant to either form or annex into the CFD or the establishment of another lawful funding mechanism reasonably acceptable to the City (“Public Services Funding Agreement”). Should the applicant choose to form or annex into a CFD, the estimated fee based on the density of the project, which is adjusted annually, is identified in the table below:

CFD levy per unit # of Units Total annual Cost per unit 40+ du/ac (year) levy monthly
$840 54 $45,360 $70
PLANNING COMMISSION RECOMMENDATION:

Appeals of administrative decisions of the Director of Development Services require public hearings before the Planning Commission. However, because the Planning Commission does not have the authority to waive City Council policies and fees, they serve in an advisory role to the City Council on this matter. It should be noted that the Planning Commission considered an appeal of the same condition of approval for another project immediately after this one, and the discussion below reflects the combined deliberations of both appeals.

The Planning Commission considered the request at its September 13, 2022, meeting and recommended the City Council grant the appeal to waive the condition of approval that requires new residential development to offset its fiscal impacts to ongoing municipal services (vote 4-2-0; Commissioners Paul and Weiler voted no; one commissioner absent) . A copy of the Planning Commission staff report is included with this report as Attachment “3.” The majority of the Commissioners supported the appeal, emphasizing that the waiver should be applied on a case-by-case basis for projects that include affordable housing units as part of a density bonus request; they did not recommend that the requirement to offset fiscal impacts be waived for all projects.

Although Commissioners Paul and Weiler voted no, they noted their support for the project and affordable housing. Commissioners Paul and Weiler indicated their recommendation was not based on the Commission’s role regarding implementing Council policy nor on the overall merits of the requested waiver. Rather, because the Commission was not involved in the establishment of the policy requiring funding of ongoing municipal services and thus did not have sufficient knowledge and information on the topic, they did not believe it was appropriate for them to make the recommendation to waive the requirement.
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During deliberation, Commissioner Paul moved to grant the appeal only for the six units that would be deed-restricted as affordable units, however the motion failed to gain a second. Also during deliberation, the Commission discussed potential support for the City Council to reconsider and evaluate the overall policy requiring funding of ongoing public services due to potential impediments it has on the ability to construct infill and affordable multi-family housing projects.

ANALYSIS

Density bonus law (Government Code section 65915 et. seq.) and Article 67 of the Escondido Zoning Code (Density Bonus and Residential Incentives) are intended to encourage the development of affordable housing. This is accomplished through the allowance for an increase in residential density above what would typically be allowed for a property, and through the provision of incentives and waivers from development standards that make construction of the project infeasible.

Allowable increases in density are based on a sliding scale that involves the percentage of affordable units being provided, and the level of affordability of those units. Current zoning for the subject property would allow a total of 36 units; however, by deed restricting 15% of those units (amounting to six units) for very- low income households, the project is eligible for a 50% increase in allowable density, resulting in a total allowance of 54 units.

The percentage of affordable units and level of affordability also entitles the applicant to three incentives and waivers. The incentives for this project include a reduction in required open space (from 300 square feet per unit to 60 square feet per unit) and an increase in height (from 45 feet to 49 feet). The applicant has also requested , as an incentive to facilitate the construction of the project , the elimination of the requirement to fund ongoing operational costs of providing municipal services required for the project.

Government Code section 95915(l) states that density bonus law “…does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements.” Similarly, section 33-1414(a)(2)(E) of the City of Escondido Municipal Code states that “the city council may, but i s not required to, provide direct financial incentives, including direct financial aid in the form of a loan or grant, the provision of publicly owned land, or the waiver of fees or dedication requirements.” Staff has applied the condition of approval in q uestion based on existing City Council Policy. Neither City policy nor the Government Code give staff the authority to waive the condition, however the City Council does have the authority to do so.

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ENVIRONMENTAL REVIEW
The California Environmental Quality Act (“CEQA”) Guidelines list classes of projects that have been determined to not have a significant effect on the environment and as a result are exempt from review under CEQA. The Project site is located within a dev eloped urban area of the City and previously developed with a commercial building. The proposed project qualifies for a categorical exemption from CEQA pursuant to CEQA Guidelines section 153 32, “Infill Development Project .” A CEQA Notice of Exemption was issued for the Project and posted with the County Clerk’s Office in accordance with CEQA.

CONCLUSION

The Director of Development Services applied a standard condition of approval requiring the project to fund all on-going operational costs of providing municipal services based on existing City Council policy .

Based on that policy, staff recommends the appeal be denied and that the condition be maintained as part of the project approval.

Staff acknowledges that both the Government Code and Escondido Zo ning Code allow the City to waive the condition at the discretion of the City Council , and the Planning Commission recommended that the City Council do so. As such, staff has also included a resolution granting the appeal and waiving the condition, should the Council wish to exercise this option.

RESOLUTIONS
a. Resolution No. 2022-139
b. Resolution No. 2022-139 – Exhibit “A” Legal Description c. Resolution No. 2022-139 – Exhibit “B” Findings of Fact d. Resolution No. 2022-140
e. Resolution No. 2022-140 – Exhibit “A” Legal Description f. Resolution No. 2022-140 – Exhibit “B” Findings of Fact

ATTACHMENTS
a. Attachment “1” – Plot Plan Conditional Letter of Approval dated August 24, 2022 b. Attachment “2” – Appeal of Plot Plan Condition of Approval c. Attachment “3” – Planning Commission Staff Report dated September 13, 2022 32 Item7.

Andrew Firestine, AICP
Director of Development Services
Planning Division
201 North Broadway, Escondido, CA 92025
Phone: 760-839-4556 Fax: 760-839-4313
`
August 23, 2022
Greg Drakos
1783 Crest Drive
Encinitas, CA 92024
Subject: Plot Plan for a 54-Unit Density Bonus Project (PL21-0304) Location: 1401 South Escondido Blvd (236-172-14-00 and 236-172-15-00) Applicant: Greg Drakos
Dear Mr. Drakos:

This letter serves to inform you that the City of Escondido has completed its review, and does hereby conditionally approve Planning Case No. PL21-0304, which is a Major Plot Plan for a 54-unit density bonus project, including six units that will be deed restricted for very -low income located at 1401 S.

Escondido Blvd. The subject property is zoned S-P (Specific Plan) and is located in the Escondido Boulevard District of South Centre City Specific Plan. The property has a Mixed -Use Overlay designation, and allows multi-family development at a density of up to 30 dwelling units per acre. The General Plan land use designation for the property is SPA 15: South Centre City Specific Plan.

This approval is subject to the Conditions of Approval attached as Exhibit “A” hereto. Compliance with the Conditions of Approval must be demonstrated on subsequently submitted plans for the project (building plans, grading/improvement plans, landscape plans, etc.). Said plans shall be in substantial conformance with those attached as Exhibit “C” hereto and on file with the Planning Division, except as modified by the Conditions of Approval in Exhibit “B.” Please note that the Plot Plan was reviewed for consistency with current City ordinances and policies and in no way vests any rights to the developer to construct to these standards in the future if the City ordinances and policies change. Additionally, please be aware that the Plot Plan was reviewed based on the assumption that the legal description for the subject property furnished by you, the applicant, and attached as Exhibit “ D” hereto, is accurate, and that all easements, covenants, conditions, and other encumbrances and restrictions relating to the property have been completely and accurately depicted, described, and disclosed. Neither the City of Escondido nor any of its officers or employees assumes responsibility for the accuracy of said information.

PLAN PROCESSING REQUIREMENTS:

One revised electronic copy of the Plot Plan reflecting the Conditions of Approval shall be submitted for review by the Planning Division. Said Plot Plan must be certified by the Planning Division prior to submittal of other plans (e.g., building, grading, landscape) for the Project.

Pursuant to Government Code section 66020(d)(1), NOTICE IS HEREBY GIVEN that the project is subject to certain fees described in the City’s Development Fee Inventory on file in both the Community Development and Engineering Services Departments. Said fees shall be paid prior to or con current with the issuance of building permits, in accordance with the prevailing fee schedule in effect at the time of building permit issuance. The project may also be subject to dedications, reservations, and exactions as specified in the conditions of a pproval. NOTICE IS FURTHER GIVEN that the 90 -day Attachment "1"
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period to protest the imposition of any fee, dedication, reservation, or other exaction described in this letter begins on the date of this letter and any such protest must be in a manner that complies with Government Code section 66020.

ENVIRONMENTAL DETERMINATION
This project has been determined to be exempt from further environmental review, pursuant to California Environmental Quality Act ( CEQA) Guidelines section 15332 (Class 32, In -Fill Development). A Notice of Exemption has been prepared for the Project, a copy of which is attached to this letter as Exhibit “E.” Approval of the subject project includes approval of the CEQA exemption.

The City of Escondido hereby notifies the applicant that the San Diego County Clerk’s Office requires a documentary handling fee of $50 in order to file a Notice of Exemption for the Project. The applicant shall remit to the City of Escondido Planning Division a check payable to the “San Diego County Clerk” in the amount of $50 within two working days of the date of this letter. Per CEQA Guidelines section 15062, the filing of a Notice of Exemption and the posting with the San Diego County Clerk starts a 35-day statute of limitations period on legal challenges to the agency’s determination that the project is exempt from CEQA. Failure to submit the required fee within the specified time noted above will result in the Notice of Exemption not being filed with the County Clerk, and a 180 -day statute of limitations period will apply.

CONCLUSION
The owner, or his/her authorized agent, shall sign the Acknowledgement and Acceptance of Conditions of Approval form enclosed with this letter, and submit such form within 10 days of receipt of this letter. Approval of this Plot Plan, i ncluding the Conditions of Approval applied to it, may be appealed as prescribed in Section 33 -1303 of the Escondido Zoning Code. If no appeal is filed, the approval shall become final on the 11th day following the date of this letter.

This Plot Plan approval will expire two years from the date of this letter. If no building permit is obtained during this period, the approval shall be considered null and void. A one -year extension of the conditional approval may be granted, after consideration of the Dire ctor of Development Services, upon written request and submittal of the required fee prior to the expiration date.

Please be advised that if you seek judicial review of the final decision in this matter pursuant to Code of Civil Procedure section 1094.5, the time within which judicial review must be sought is governed by California Code of Civil Procedure section 1094.6.

Please feel free to contact me at (760) -839-4546, or via email at [email protected], if you have any questions.

Sincerely,

Sean Nicholas, AICP
Principal Planner
Attachment "1"
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Exhibits:

A. Findings of Fact
B. Conditions of Approval
C. Project Plans
D. Legal Description
E. CEQA Notice of Exemption

cc: Adam Finestone, City Planner

Attachment "1"
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EXHIBIT “A”

FINDINGS OF FACT

Environmental Determinations:

1. Pursuant to the California Environmental Quality Act (Public Resources Code section 21000 et. seq.) (“CEQA”), and it’s implementing regulations (14 C.C.R. § 15000 et seq.) (“CEQA Guidelines”), the City of Escondido (“City”) is the Lead Agency for the project (“Project”), as the public agency with the principal responsibility for approving the Project.

2. The proposed project qualifies for an exemption from the California Environmental Quality Act (CEQA) under Section 15332, Class 32 In-fill Development Project.

3. The City Planner , or their designee, has independently considered the full administrative record before it, which includes but is not limited to materials and evidence submitted by the applicant and other interested parties, and input provided by other City departments and public agencies. No substantial evidence has been submitted that would support a finding that any above-described exemption is not applicable to the Project. The Project will not have a significant effect on the environment, and all of the requirements of CEQA have been met.

Plot Plan Findings

The City Planner, or their designee, has reviewed the record, including applicable CEQA findings, and makes the following findings for a Plot Plan Permit:

1. The proposed multi -family residential project is an allowed use within the Escondido Boulevard District of the South Centre City Specific Plan (SPA 15). The Project is consistent with the objectives of the General Plan, complies with applicable zoning regulations, Specific Planning Area provisions, and improvement standards adopted by the City.

2. The Plot Plan is granted subject to such conditions as deemed necessary to meet the standards of the use and zone in which it is located and to comply with applicable design standards.

3. The Plot Plan is granted subject to such additional conditions as deemed necess ary and desirable to preserve the public health, safety and general welfare.

Attachment "1"
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EXHIBIT “B”

PLANNING CASE NO. PL21-0304

CONDITIONS OF APPROVAL

This Project is conditionally approved as set forth on the application received by the City of Escondido on June 28, 2021, and the P roject drawings consisting of Site Plans, Floor Plans, Sections, Architectural Elevations, Civil Sheets/Grading, Landscape Plans and Colored Elevations; all designated as approved on August 23, 2022, and shall not be altered without express authorization by the Development Services Department.

For the purpose of these conditions, the term “Applicant” shall also include the Project proponent, owner, permittee, and the Applicant’s successors in interest, as may be applicable.

A. General:

1. Acceptance of Permit. If the Applicant fails to file a timely and valid appeal of this Permit within the applicable appeal period, such inaction by the Applicant shall be deemed to constitute all of the following on behalf of the Applicant:

a. Acceptance of the Permit by the Applicant; and

b. Agreement by the Applicant to be bound by, to comply with, and to do all things required of or by the Applicant pursuant to all of the terms, provisions, and conditions of this Project Permit or other approval and the provisions of the Escondido Municipal Code or Zoning Code applicable to such Permit.

2. Permit Expiration. If the Permit was filed as or concurrent with a Tentative Map or Planned Development application , the Permit shall expire 24 months from the effective date of approval, unless additional time is granted pursuant to the Map Act or to the Escondido Municipal Code. If not filed as concurrent with a Tentat ive Map or Planned Development application, the Permit shall automatically expire after one year from the date of this approval, or the expiration date of any extension granted in accordance with the Escondido Municipal Code and Zoning Code.

The Permit shall be deemed expired if a building permit has not been obtained or work has been discontinued in the reliance of t hat building permit. If no building permits are required, the City may require a noticed hearing to be scheduled before the aut horized Attachment "1"
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agency to determine if there has been demonstrated a good faith intent to proceed, pursuant to and in accordance with the provision of this Permit.

3. Certification. The Director of Development Services, or his/her designee, is authorized and directed to make, or require the Applicant to make, all corrections and modifications to the Project drawings and any other relevant document comprising the Project in its entirety, as necessary to make them internally consistent and in conformity with the final action on the Project. This includes amending the Project drawings as necessary to incorporate revisi ons made by the decision -making body and/or reflecting any modifications identified in these conditions of approval. A final Approved Plan set, shall be submitted to the Planning Division for certification electronically. Said plans must be certified by the Planning Division prior to submittal of any post-entitlement permit, including grading, public improvement, landscape, or building plans for the Project.

4. Conformance to Approved Plans.

a. The operation and use of the subject property shall be consistent with the Project Description and Details of Request, designated with the Approved Plan set.

b. Nothing in this Permit shall authorize the Applicant to intensify the authorized activity beyond that which is specifically described in this Permit.

c. Once a permit has been issued, the Applicant may request Permit modifications. “Minor" modification s may be granted if found by the Director of Development Services to be in substantial conformity with the Approved Plan set, including all exhibits and Permit conditions attached hereto. Modifications beyond the scope described in the Approved Plan set may require submittal of an amendment to the Permit and approval by the authorized agency.

5. Limitations on Use. Prior to any use of the Project site pursuant to this Permit, all Conditions of Approval contained herein shall be completed or secured to the satisfaction of the Development Services Department.

6. Certificate of Occupancy.

a. No change in the character of occupancy or change to a different group of occupancies as described by the Building Code shall be made without first obtaining a Certificate of Occupancy from the Building Official, as required, and any such change in occupancy must comply with all other applicable local and state laws.

Attachment "1"
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b. Prior to final occupancy, a Planning Final Inspection shall be completed to ensure that the property is in full compliance with the Permit terms and conditions. The findings of the inspection shall be documented on a form and content satisfactory to the Director of Community Development.

7. Availability of Permit Conditions.

a. Prior to building permit issuance, the Applicant shall cause a covenant regarding real property to be recorded that sets forth the terms and conditions of this Permit approval and shall be of a form and content satisfactory to the Director of Development Services.

b. The Applicant shall make a copy of the terms conditions of this Permit readily available to any member of the public or City staff upon request. Said terms and conditions shall be printed on any construction plans that are submitted to the Building Division for plan check processing.

8. Right to Entry. The holder of this Permit shall make the premises available for inspection by City staff during construction or operating hours and allow the investigations of property necessary to ensure that minimum codes, regulations, local ordinances and safety requirements are properly followed. The Applicant shall provide such business records, licenses, and other materials necessary upon request to provide evidence of compliance with the conditions of approval, as well as federal, state, or laws.

9. Compliance with Federal, State, and Local Laws. Nothing in this Permit shall relieve the Applicant from complying with conditions , performance standards, and regulations generally imposed upon activities similar in nature to the activity authorized by this permit. (Permits from other agencies may be required as specified in the Permit’s Details of Request.) This Permit does not relieve the Applicant of the obligation to comply with all applicable statutes, regulations, and procedures in effect at the time that any engineering permits or building permits are issued unless specifically waived herein.

No part of this Permit’s approval shall be construed to permit a violation of any part of the Escondido Municipal or Zoning Code. During Project construction and after Project completion, the Applicant shall ensure the subject land use activit ies covered by this Permit is conducted in full compliance with all local and state laws.

Attachment "1"
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10. Fees. The appropriate development fees and Citywide Facility fees shall be paid in accordance with the prevailing fee schedule in effect at the time of building permit issuance, to the satisfaction of the Director of Development Services. Through plan check processing, the Applicant shall pay development fees at the established rate. Such fees may include, but not be limited to: Permit and Plan Checking Fees, Water and Sewer Service Fees, School Fees, Traffic Mitigation Fees, Flood Control Mitigation Fees, Park Mitigation Fees, Fire Mitigation/Cost Recovery Fees, and other fees listed in the Fee Schedule, which may be amended. Arrangements to pay these fees shall be made prior to building permit issuance to the satisfaction of the Development Services Department.

Approval of this development project is conditioned upon payment of all applicable development fees and connection fees in the manner provided in Chapter 6 of the Escondido Municipal Code.

11. Costs of Municipal Services. Costs of Municipal Services. In accordance with the General Plan, the Developer shall fund all on -going operational costs of providing municipal services required for the Project, the amount of such funding shall be in accordance with the special tax levy adopted annually by the City Council based on the project density, unless another amount is approved by the City Council at the time of Project approval. Such funding shall occur through either an agreement to form or annex into a Community Facilities District (“CFD”) or the establishment of another lawful funding mechanism reasonably acceptable to the City (“Public Services Funding Agreement”). Projects that elect to annex into the Services CFD shall submit consent forms prior to the first permit issuance if they have not done so already. The provisions of the Public Services Funding Agreement shall specify any terms and limitations necessary to implement the CFD or other funding mechanism to offset the impacts to public services associated with the project. The City Manager, or Ci ty Manager’s designee, shall be authorized to approve and execute the Public Services Funding Agreement , and the Public Services Funding Agreement shall be finalized prior to the City’s issuance of any permit for the Project.

12. Public Art Partnership Program. All requirements of the Public Art Partnership Program as applicable, Ordinance No. 86-70 shall be satisfied prior to any building permit issuance.

The ordinance requires that a public art fee be added at the time of the building permit issuance for the purpose of participating in the City Public Art Program.

Attachment "1"
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13. Clerk Recording.

a. Exemption. If the environmental determination prepared for the Project is a categorical exemption, the City of Escondido hereby notifies the Applicant that the County Clerk’s Office requires a documentary handling fee of $50 in order to file a Notice of Exemption. In order to file the Notice of Exemption with the County Clerk, in conformance with California Environmental Quality Act (CEQA) Guidelines section 15062, the Applicant should remit to the City of Escondido Planning Division, within two working day s of the final approval of the P roject (the final approval being the date of this letter) a certified check payable to the “County Clerk” in the amount of $50. The filing of a Notice of Exemption and the posting with the County Clerk starts a 35 -day statute of limitations period on legal challenges to the agency’s decision that the Project is exempt from CEQA. Failure to submit the required fee withi n the specified time noted above will result in the Notice of Exemption not being filed with the County Clerk, and a 180 -day statute of limitations period will apply.

b. For more information on filing fees, please refer to the County Clerk’s Office and/or the California Code of Regulations, Title 14, Section 753.5.

14. Legal Description Adequacy. The legal description attached to the application has been provided by the Applicant and neither the City of Escondido nor any of its employees assume responsibility for the accuracy of said legal description.

15. Application Accuracy. The information contained in the application and all attached materials are assumed to be correct, true, and complete. The City of Escondido is relying on the accuracy of this information and Project-related representations in order to process this application. Any permits issued by the City may be rescinded if it is determined that the information and materials submitted are not true and correct. The Applicant may be liable for any costs associated with rescission of such permits.

16. Enforcement. If any of the terms, covenants , or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, the City of Escondido shall have the right to deny or withhold subsequent permit approvals or permit inspections that are derived from the application entitlements herein granted; issue stop work orders; pursue abatement orders, penalties, or other administrative remedies as set forth in state and local laws; or institute and prosecute litigation to compel compliance with such terms, covenants, or conditions or seek damages for their violation.

The Applicant shall be notified in advance prior to any of the above actions being taken Attachment "1"
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by the City and shall be given the opportunity to remedy any deficiencies identified by the City.

17. Indemnification, Hold Harmless, Duty to Defend.

Provided, however, that the Applicant shall have no obligati on to indemnify, hold harmless, or defend the City as to any Claims that arise from the sole negligence or willful misconduct of the City. In the event any such Claims are brought against the City, the Applicant, upon receiving notice from the City, shall defend the same at its sole expense by counsel reasonably acceptable to the City and shall indemnify the City for any and all administrative and litigation costs incurred by the City itself, the costs for staff time expended, and reasonable attorney’s fee s (including the full reimbursement of any such fees incurred by the City’s outside counsel, who may be selected by the City at its sole and absolute discretion and who may defend the City against any Claims in the manner the City deems to be in the best interests of the City).

b. The Applicant further and separately agrees to and shall indemnify, hold harmless, and defend the City (including all Indemnified Parties) from and against any and Attachment "1"
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all Claims brought by any third party to challenge the Project or its approval by the City, including but not limited to any Claims related to the Project’s environmental determinations or environmental review documents, or any other action taken by the City regarding environmental clearance for the Project or any of the Project approvals. Such indemnification shall include the Applicant’s payment for any and all administrative and litigation costs and expenses incurred by the City in defending against any such Claims, including payment for all administrative and litigation costs incurred by the City itself, the costs for staff time expended, and reasonable attorney's fees (including the full reimbursement of any such fees incurred by the City’s outside counsel, who may be selected by the City at its sole and absolute discretion and who may defend the City against any Claims in the manner the City deems to be in the best interests of the City and the Project).

c. The City, in its sole discretion and upon providing notice to the Applicant, may require the Applicant to deposit with the City an amount estimated to cover costs, expenses, and fees (including attorney’s fees) required to be paid by the Applicant in relation to any Claims referenced herein, which shall be placed into a deposit account from which the City may draw as such costs, expenses, and fees are incurred. Within 14 days after receiving written notice from the City, the Applicant shall replenish the deposit account in the amount the City determines is necessary in the context of the further defense of such Claims. To the extent such deposit is required by the City, the amount of such deposit and related terms and obligations shall be expressed in a written Deposit Account Agreement, subject to the City Attorney’s approval as to form. The City, in its sole and reasonable discretion, shall determine the amount of any initial deposits or subsequent deposits of funds, and the Applicant may provide documentation or information for the City to consider in making its determinations. Nothing within this subsection shall be construed as to relieve the Applicant’s obligations to indemnify, hold harmless, or defend the City as otherwise stated herein.

B. Construction, Maintenance, and Operation Obligations:

1. Code Requirements. All construction shall comply with the applicable requirements of the Escondido Municipal Code, Escondido Zoning Code, California Building Code; and the requirements of the Planning Division, Engineering Services Department, Director of Community Development, Building Official, City Engineer, and the Fire Chief in carrying out the administration of said codes. Approval of this Permit request shall not waive compliance with any City regulations in effect at the time of Building Permit issuance unless specifically waived herein.

Attachment "1"
43 Item7.

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As a condition of receiving the land use approvals specified herein, Applicant shall maintain the property subject to the approvals in compliance with all applicable city codes governing the condition or appearance of property. In addition to compliance with such basic standards, the property subject to these approvals shall also be maintained free of trash, plant debris, weeds, and concrete (other than existing foundations and permanent structures). Any signs placed on the property advertising such property for sale o r rent shall be in accordance with applicable laws, and be kept clean, in like-new condition, and free from fading and graffiti at all times. This condition shall be applicable from the date the land use is approved. The failure to comply with this cond ition shall subject the approvals specified herein to revocation for failure to comply.

2. Agency License and Permitting. In order to make certain on- or off-site improvements associated with the Approved Plan set, the Permit request may require review and clearance from other agencies. Nothing in these Conditions of Approval shall be construed as to waive compliance with other government agency regulations or to obtain permits from other agencies to make certain on - or off-site improvements prior to Final Map recordation , grading permit issuance, building permit issuance, or certificate of occupancy as required. This review may result in conditions determined by the reviewing agency.

At all times during the effe ctive period of this Permit, the Applicant and any affiliated responsible party shall obtain and maintain in valid force and effect, each and every license and permit required by a governmental agency for the construction, maintenance, and operation of the authorized activity.

3. Utilities. All new utilities and utility runs shall be underground , or fee payment in-liue subject to the satisfaction of the City Engineer.

4. Signage. All proposed signage associated with the Project must comply with Article 66 (Sign Ordinance) of the Esconidido Zoning Code. Separate sign permits will be required for Project signage. All non -conforming signs shall be removed. The Applicant shall submit with any sign permit graphic/list of all signs to be removed and retained, along with any new signage proposed.

5. Noise. All P roject generated noise shall conform to the City’s Noise Ordinance (Ordinance 90-08).

Attachment "1"
44 Item7.

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6. Lighting. All exterior lighting shall conform to the requirements of Article 35 (Outdoor Lighting Ordinance) of the Escondido Zoning Code.

7. General Property Maintenance. The property owner or management company shall maintain the property in good visual and functional condition. This shall include, but not be limited to, all exterior elements of the buildings such as paint, roof, paving, signs, lighting and landscaping. The Applicant shall paint and re-paint all building exteriors , accessory equipment, and utility boxes servicing the Project, as necessary to maintain clean, safe, and efficient appearances.

8. Anti-Graffiti. The Applicant shall remove all graffiti from buildings and wall surfaces within 48 hours of defacement, including all areas of the job site for when the Project is under construction.

9. Anti-Litter. The site and surrounding area shall be maintained free of litter, refuse, and debris. Cleaning shall include keeping all publicly used areas free of litter, trash, and garbage.

10. Roof, Wall, and Ground Level Equipment. All mechanical equipment shall be screened and concealed from view in accordance with Section 33 -1085 of the Escondido Zoning Code.

11. Trash Enclosures. All appropriate trash enclosures or other approved trash system s shall be approved by the Planning and Engineering Division. The property owner or management company shall be responsible for ensuring that enclosures are easily assessable for garbage and recyclables collection; and that the area is managed in a clean, safe, and efficient manner. Trash enclosure covers shall be closed when not in use. Trash enclosures shall be regularly emptied. There shall be the prompt removal of visible signs of overflow of garbage, smells emanating from enclosure, graffiti, pests, and vermin.

12. Staging Construction Areas. All staging areas shall be conducted on the subject property, subject to approval of the Engineering Department. Off -site staging areas, if any, shall be approved through the issuance of an off-site staging area permit/agreement.

13. Disturbance Coordinator. The Applicant shall designate and provide a point -of-contact whose responsibilities shall include overseeing the implementation of Project, compliance with Permit terms and conditions, and responding to neighborhood concerns.

Attachment "1"
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14. Construction Waste Reduction, Disposal, and Recycling. Applicant shall recycle or salvage for reuse a minimum of 65% of the non -hazardous construction and demolition waste for residential projects or portions thereof in accordance with either Section 4.408.2,

4.408.3, or 4.408.4 of the California Green Building Standards Code; and/or for non - residential projects or portions thereof in accordance with either Section 5.408.1.1,

5.408.1.2, or 5.408.1.3 of the California Green Building Standards Code. In order to ensure compliance with the waste diversion goals for all residential and non -residential construction projects, the Applicant must submit appropriate documentation as described in Section 4.408.5 of the California Green Building Standards Code for residential projects or portions thereof, or Section 5.408.1.4 for non -residential projects or portions thereof, demonstrating compliance with the California Green Building Standards Code sections cited above.

15. Construction Equipment Emissions. Applicant shall incorporate measures that reduce construction and operational emissions. Prior to the City’s issuance of the demolition and grading permits for the Project, the Applicant shall demonstrate to the satisfac tion of the Planning Division that its construction contractor will use a construction fleet wherein all 50-horsepower or greater diesel -powered equipment is powered with California Air Resources Board (“CARB”) certified Tier 4 Interim engines or equipment outfitted with CARB-verified diesel particulate filters. An exemption from this requirement may be granted if (i) the Applicant provides documentation demonstrating that equipment with Tier 4 Interim engines are not reasonably available, and (ii) functio nally equivalent diesel PM emission totals can be achieved for the Project from other combinations of construction equipment. Before an exemption may be granted, the Applicant’s construction contractor shall demonstrate to the satisfaction of the Director of Community Development that (i) at least two construction fleet owners/operators in San Diego County were contacted and those owners/operators confirmed Tier 4 Interim equipment could not be located within San Diego County during the desired construction schedule, and (ii) the proposed replacement equipment has been evaluated using the California Emissions Estimator Model (“CalEEMod”) or other industry standard emission estimation method, and documentation provided to the Planning Division confirms that n ecessary project - generated functional equivalencies in the diesel PM emissions level are achieved.

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construction, and any other means necessary to prevent conflicts between construction traffic and users of the occupied buildings. The phasing pl an shall be approved by the City Planner, Building Official, City Engineer and Fire Marshal prior to the issuance of a grading permit for the project. The phasing plan shall not be modified without written consent from the City of Escondido.

C. Parking and Loading/Unloading.

1. A minimum of 73 parking spaces shall be provided at all times. Said parking spaces provided by the Applicant, and any additional parking spaces provided above the required, minimum amount, shall be dimensioned per City standards and be maintained in a clean, well-marked condition. The striping shall be drawn on the plans or a note shall be included indicating double-striping per City standards.

2. Parking for disabled persons shall be provided (including “Van Accessible” spaces) in full compliance with the State Building Code.

3. In accordance with the California Green Building Standard Code, at least eight (8%) percent of the total number of required spaces shall be designated for clean air vehicles (CAV), and shall be shown on the revised site plan to the satisfaction of the Planning and Building divisions.

4. No contractor or employee may store, or permit to be stored, a commercial or construction vehicle/truck; or personal vehicle, truck, or other personal property on public-right-of-way or other public property without permission of the City Engineer.

5. A parking and garage management plan shall be submitted to the City for review. Said plan shall address parking lot access, space assignment(s), gate hours, general maintenance, signage and striping, delivery and other short -term parking allowances/requirements, guest parking, utility access and trash/recycling staging, and any other issues which affect the use and maintenance of the parking garage.

D. Landscaping: The property owner or management company assumes all responsibility for maintaining all on-site landscaping; any landscaping in the public right-of-way adjacent to the property, including potted plants; and any retaining and freestanding walls in a manner that satisfies the conditions contained herein.

1. Landscaped areas shall be maintained in a flourishing manner. Appropriate irrigation shall be provided for all landscape areas and be maintained in a fully operational condition.

2. All existing planting and planter areas, including areas within the public right-of-way, shall be repaired and landscaping brought into compliance with current standards. All dead Attachment "1"
47 Item7.

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plant material shall be removed and replaced by the property owner or management company.

3. If at the time of planning final inspection that it is determined that sufficient screening is not provided, the Applicant shall be required to provide additional landscaping improvements to the satisfaction of the Planning Division.

4. The landscaped areas shall be free of all foreign matter, weeds and plan t material not approved as part of the landscape plan.

5. Failure to maintain landscaping and the site in general may result in the setting of a public hearing to revoke or modify the Permit approval.

6. Landscaping Plans. Applicant shall install all required improvements including screening walls, retaining walls, storm improvements, and landscaping in substantial conformance to the planting and irrigation schedule as shown on the final Approved Plan set.

a. A final landscape and irrigation plan shall be submitted to the Engineering Services Department for review and approval , if meeting any of the criteria listed under Section 33 -1323 of the Zoning Code. Five copies of detailed landscape and irrigation plans shall be submitted to the Engineering Services Department with the second submittal lf the grading plan. The initial submittal of the landscape plans shall include the required plan check fees, paid in accordance with the prevailing fee schedule in effect at the time of submittal. Details of Project fencing and walls, including materials and colors, shall be provided on the landscape plans. (Building permits may also be required.) The landscape and irrigation plans shall be reviewed and approved by the Planning Division and Engineering Services Department prior to issuance of grading permits, and shall be equivalent or superior to the conceptual landscape plans included as part of the Approved Plan set, to the satisfaction of the Planning Division. The required landscape and irrigation plans(s) shall comply with the provisions, requirements and standards outlined in Article 62 (Landscape Standards) of the Escondido Zoning Code, except where stricter requirements are imposed by the State of California.

b. Screening walls, retaining walls, storm improvements, and landscaping (i.e. planting and irrigation) is to be provided prior to final occupancy.

c. The installation of the landscaping and irrigation shall be inspected by the Project landscape architect up on completion. He/she shall complete a Certificate of Landscape Compliance certifying that the installation is in substantial compliance Attachment "1"
48 Item7.

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with the approved landscape and irrigation plans and City standards. The Applicant shall submit the Certificate of Compliance to the Planning Division and request a final inspection.

d. Any new freestanding walls and/or retaining walls shall incorporate decorative materials or finishes, and shall be indicated on the landscaping plans. (Building permits may also be required.) All freestanding walls visible from points beyond the Project site shall be treated with a protective sealant coating to facilitate graffiti removal. The sealant shall be a type satisfactory to the Director of Development Services.

e. New or retrofitted trash enclosures shall accommodate vertical climbing plants, vines with support trellis panels, clinging non-deciduous or fast growing shrubbery that will screen the enclosures wall surface. The Director of Development Services shall find that the proposed landscaping design, material, or method provides approximate equivalence to the specific requirements of this condition or is otherwise satisfactory and complies with the intent of these provisions.

E. Housing and Neighborhood Services Conditions:

1. The Project shall provide a minimum of six ( 6) dwelling units for very -low income households (those earning less than 50 percent of the Area Median Income for the San Diego-Carlsbad-San Marcos MSA). Prior to issuance of a building permit, the developer shall sign a binding affordable housing agreemen t with the City, which will set forth the conditions and guidelines to be met in the implementation of Density Bonus Law requirements and any other applicable requirements (Within the affordable housing agreement, the developer will be responsible for annu al recertification of household income qualifications and compliance with rent limits). The agreement will also establish specific compliance standards and remedies available to the City upon failure by the developer to restrict units to target households for the prescribed time period (55 years for all target units as described in Government Code section 65915(c)). Income qualified households will be monitored by the City of Escondido Housing and Neighborhood Services Division for the duration of the affordability period. Monitoring fees will be applied per the affordable housing agreement.

2. All affordability agreements shall run with the land and be binding on the applicant and its heirs, transferees, assigns, successors, administrators, executors, and other representatives, and recorded on the applicable property for the requisite period of time.

Attachment "1"
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F. Engineering Conditions:

GENERAL

1. The Developer shall provide the City Engineer with a current Preliminary Title Report covering subject property.

2. The location of all existing on -site and adjacent utilities shall be determined by the Developer’s engineer. If a conflict occurs with the proposed project or improvements, these utilities shall be relocated subject to approval of the owner of the utility/facility prior to approval of Grading plans and issuance of Building Permits.

3. Improvement plans prepared by a Civil Engineer, required for all public street, utility, and storm drain improvements, and Grading/Private Improvement plans prepared by Civil Engineer, required for all grading, drainage and private onsite improvement design, shall be submitted for review through the virtual plan review portal as a single package containing all items on the Engineering Initial Submittal Checklists. Landscaping Plans shall be prepared by a Landscape Architect.

4. The Developer shall post securities in accordance with the City prepared Bond and Fee Letter based on a final Engineer’s Estimate of Grading and Improvements Cost prepared by the project engineer. The Deve loper is required to provide a Cash Clean Up deposit for all grading, landscaping, private Improvements and onsite drainage improvements prior to approval of Grading Plans and issuance of Grading Permit. This Cash Clean Up Deposit amount shall be 10% of th e total cost of the project private improvements, drainage and landscaping. The Developer is required to provide Performance (100% of total public improvement cost estimate), Labor and Material (50% of total public improvement cost estimate) and Guarantee and Warrantee (10 % of total public improvement cost estimate) bonds for all public improvements prior to approval of the Improvement Plans and issuance of Building Permits. All improvements shall be completed prior to issuance of a Certificate of Occupancy.

5. As surety for the construction of required off -site and/or on -site improvements, bonds and agreements in a form acceptable to the City Attorney shall be posted by the Developer with the City of Escondido prior to the approval of any building permit.

6. If site conditions change adjacent to the proposed development prior to completion of the project, the Developer will be responsible to modify his/her improvements to accommodate these changes. The determination and extent of the modification shall be to the satisfaction of the City Engineer.

7. All public improvements shall be constructed in a manner that does not damage existing public improvements. Any damage shall be corrected by the Developer to the satisfaction of the City Engineer.

Attachment "1"
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8. The Developer’s engineer shall submit to the Planning Department 3 copies of the Plot Plan as conditionally approved. These copies shall be signed by the Planning Department verifying that they are an accurate reproduction of the approved Plot Plan and one of these copies mu st be included with the first Final Engineering submittal for plan check to the Engineering Department.

STREET IMPROVEMENTS AND TRAFFIC

1. All driveways shall be alley-type in accordance with Escondido Standard Drawing No. G-5- E, with a minimum throat width of 24’. The driveway apron off Escondido Blvd. is allowed to have a reduced return radius of 12 feet on the south side to accommodate the existing SDG&E equipment. All other driveway apron returns shall be the standard 20’ radius.

2. The existing substand ard radius curb return at the northwest corner of 15 th Avenue and Escondido Blvd. (SE cor. of project frontage) shall be reconstructed to the City Standard minimum radius of 30 feet together with a new pedestrian ramp. This curb return reconstruction shall include the relocation and/or adjustment to grade of various utility and traffic signal equipment including 2 waterline air valves, a 1A traffic signal pole, pull boxes, etc.

3. The Developer will be required to modify the existing traffic signal poles & equipment, signing, and striping as needed to accommodate the curb return reconstruction in Condition 2 above. The Developer shall submit separate traffic signal and signing and striping modification improvement plans prepared by a Traffic Engineer for review and approval by the City Engineer. These traffic signal modifications shall be per current City, Caltrans, and MUTCD Standards and shall include video detection and APS as needed.

The Developer’s Traffic Engineer will also be responsible for any required signal timing and coordinating traffic signal modification work with the Developer’s Contractor(s) and Equipment Suppliers and City staff.

4. The developer will be responsible for removal of all existing and the furnish and installation of all new signing and striping in compliance with the current CA MUTCD standards and to the satisfaction of the City Engineer.

5. The Developer shall repaint all pavement striping and markings adjacent to the project that have been damaged and prematurely faded due to project construction traffic to the satisfaction of the City Engineer.

6. All unused driveways shall be removed and replaced with full height curb and gutter and sidewalk in accordance with City standards.

7. A new LED street light shall be installed per Escondido Standard Drawing E-1-E on the west side of the new project entrance off 15th Avenue.

Attachment "1"
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8. The existing street light on Escondido Blvd. shall be relocated to the south side of the project’s proposed new Escondido Blvd. driveway and it shall be retrofitted with an LED light head in accordance with Escondido Standard Drawing No. E-1-E.

9. Adequate horizontal sight distance shall be provided at all street intersections and driveway entrances. Increased parkway widths, open space easements, and restrictions on landscaping may be required at the discretion of the City Engineer.

10. The Developer shall remove and replace all damaged sidewalk, curb and gutter, along all project frontages to the satisfaction of the City Engineer prior to issuance of a Certificate of Occupancy.

11. The Developer may be responsible for an overlay of portions of Escondido Blvd. and 15th Avenue due to utility trenches necessary to serve this project. The determination of the extent of any required overlay shall be to the satisfaction of the City Engineer.

12. Pedestrian access routes meeting current ADA requirements shall be provided into the project to the satisfaction of the City Engineer and City Building Official.

13. All gated entrances shall be approved by the City Engineer, Building Official, and the Fire Marshal.

14. The Developer will be required to provide a detailed detour and traffic control plan, for all construction and staging activities within the Escondido Blvd. right-of-way to the satisfaction of the City Engineer. This plan shall inclu de any proposed sidewalk closures and provide for alternate pedestrian access around the project site. This plan shall be approved prior to the issuance of an Encroachment Permit for construction or other project activities within the public right-of-way.

GRADING

1. A site grading and erosion control plan prepared by a registered Civil Engineer shall be approved by the Engineering Department prior to issuance of building permits. The first submittal of the grading plan shall be accompanied by a copy of the pr eliminary soils and geotechnical report. The Soils Engineer will be required to indicate in the soils report that he/she has reviewed the grading design and found it to be in conformance with his/her recommendations.

2. All private access drives and parking areas shall be paved with a minimum of 3” asphalt concrete over 6” of aggregate base or 7” Portland cement concrete over 6” aggregate base.

All paved areas exceeding 15% slope or less than 1.0% shall be paved with Portland cement concrete.

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proposed retaining wall design is in conformance with the recommendations and specifications as outlined in the Geotechnical report. Structural calculations shall be submitted for review by a Consulting Engineer for all walls not covered by Regional or City Standard Drawings. The Developer will be required to pay for all required third party structural engineering review of these structural calculations and details. Stem walls, foundation structures, or deepened footings that are to be constructed as part of a building structure will be permitted as part of the Building Department plan review and Building Permit process.

4. All retaining walls and screen walls, stairs and raised landings shall be constructed completely within the Project property and shall not encroach into the public R/W.

5. The Developer will be required to obtain permission from adjoining property owners for any off-site grading or other work necessary to construct the project and/or the required improvements, or the Developer sh all modify the project design so the construction in question is contained within the project’s property lines.

6. Erosion control, including riprap, interim slope planting, sandbags, or other erosion control measures shall be provided to control sediment a nd silt from the project. The Developer shall be responsible for maintaining all erosion control facilities throughout the project.

7. The Developer shall be responsible for the recycling of all excavated materials designated as Industrial Recyclables (soil, asphalt, sand, concrete, land clearing brush and rock) at a recycling center or other location(s) approved by the City Engineer.

8. All blasting operations performed in connection with the improvement of the project shall conform to the City of Escondido Blasting Operations Ordinance.

9. All existing foundations, structures, trees not otherwise designated “to remain” on the Plot plan, shall be removed or demolished from the site.

10. All driveway grades shall conform to current Escondido Design Standards and Escond ido Standard Drawings.

DRAINAGE

1. Final on-site and off-site storm drain improvements shall be determined to the satisfaction of the City Engineer and shall be based on a Final Drainage Study to be prepared by the Engineer of Work. The drainage study shall be in conformance with the City of Escondido Design Standards.

2. All on-site storm drains are private. The responsibility for maintenance of these storm drains shall be that of the Property Owner.

3. The project shall limit drainage flows to their pre-construction rates. Details and calculations for any detention vaults shall be submitted and approved as part of the grading plan check.

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4. A Final Storm Water Quality Management Plan (SWQMP) in compliance with the City’s latest adopted Storm Water Desi gn Manual shall be prepared for all newly created or replaced onsite impervious areas, impervious frontage, and required offsite improvements.

The SWQMP shall be submitted for approval with the final improvement and grading plans.

The SWQMP shall include calculations for treatment, hydromodification, pump, and storage volumes. The SWQMP shall include detailed maintenance requirements and responsibilities for all onsite conveyance, treatment, detention, and pump facilities. The SWQMP shall demonstrate how any proposed proprietary best management practices like modular wetlands meet bio -filtration treatment requirements in accordance with the City’s Storm Water Design Manual.

5. Trash enclosures shall be covered and be constructed to comply with storm water qu ality management requirements to the satisfaction of the City Engineer.

6. The Developer will be required to have the current owner of the property sign, notarize, and record a Storm Water Control Facility Maintenance Agreement.

7. All onsite and offsite storm water treatment and retention facilities and their drains including modular wetlands, underground storage and pumps, any permeable paver areas shall be considered private. The responsibility for maintenance and repair of all project constructed/installed post construction storm water treatment facilities both onsite and in the adjacent public right-of-way shall be that of the Property Owner.

WATER SUPPLY

1. Fire hydrants together with an adequate water supply shall be installed at locations approved by the Fire Marshall. Fire hydrants shall connect to a minimum 8-inch water main.

2. The final locations and sizing of all required water mains, water services, fire hydrants, detector check assemblies, and other water appurtenances shall be designed and installed to the satisfaction of the Utilities Engineer and Fire Marshal.

3. Fire suppression and sprinkler systems beyond the Detector Check Valves are private and shall be designed and constructed per current Building, Plumbing, and Fire Code Standards, and per the requirements of the City Fire Marshal and City Building Official and shall be approved by a separate submittal to the Building Department. Although private and approved by separate plans and permit, all fire suppression lines shall be shown for reference and review on the various final engineering plan sets.

4. All on-site water lines and backflow prevention devices beyond the City water meter or DDCA shall be considered a private water system. The Property Owner shall be responsible for all maintenance of these water lines and appurtenances.

Attachment "1"
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5. A 1-inch minimum water service, 1-inch water meter, and backflow prevention device shall be required for domestic water supply per City of Escondido Design Standards and Standard Drawings. Water meters and backflow prevention devices shall not be installed within a driveway apron or on private drive areas.

6. No trees or deep-rooted bushes shall be planted within 10-feet of any water mains or services.

7. There shall be no permanent private structures located within the City’s Public Utility Easements.

8. Backflow prevention assemblies are private and should be located on private property.

Backflows shall be located directly behind the public meter.

9. Any water services to be replaced, reconnected or relocated as a part of this project shall be replaced in entirety from the public water main to the public water meter to the satisfaction of the Utilities Engineer and Water Distribution Department.

10. Any fire hydrants to be replaced, reconnected or relocated as a part of this project shall be replaced in entirety from the public water main to the fire hydrant per the satisfaction of the Utilities Engineer and Water Distribution.

11. The Developer shall disconnect at the public main, all water services and fire hydrants laterals to be abandoned, to the satisfaction of the Utilities Engineer and Water Distribution Department.

SEWER

1. A private 6-inch minimum PVC sewer lateral with a standard clean -out within 18-inches of the Public Utility Easement or ROW shall be constructed for the project and shown on the Improvement and Grading plans. Sewer laterals less than 8-inches in diameter shall connect to the sewer main with a wye or Inserta-Tee.

2. All sewer laterals shall be constructed per current City of Escondido Design Standards and Standard Drawings and per the current Uniform Plumbing Code.

3. No trees or deep-rooted bushes shall be planted within 15-feet of any sewer main or within 10-feet of any sewer lateral. Sewer laterals shall be 5 -feet horizontally clear from other utilities.

4. All sewer laterals shall be considered a private sewer system. The Property Owner shall be responsible for all maintenance of sewer laterals to the public sewer main.

5. The Developer shall cap and plug at the public sewer main all sewer lines and laterals to be abandoned, to the satisfaction of the Utilities Engineer and the City Inspector.

Attachment "1"
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6. The location of all sewer laterals shall be shown on the grading and improvement plans.

LANDSCAPING

1. Site landscaping and irrigation plan for the project and for all right -of-way areas along the project frontages shall be prepared by a Licensed Landscape Architect and submitted to the Engineering Department with the second submittal of the grading plans for review and approval by Engineering and Planning Departments. The initial submittal of the landscape plans shall include the required plan check fees.

EASEMENTS AND DEDICATIONS

1. The developer shall dedicate to the public a 20-foot radius corner rounding at the northwest corner of 15th Ave. and Escondido Blvd.

2. All private and public easements affecting subject property both proposed and existing to remain shall be shown, delineated, dimensioned, and clearly labeled on the Final Map and all plan sets.

3. The Developer shall grant to the public two (2) feet of public utility easement beyond the public right-of-way along the project’s entire 15th Avenue frontage.

4. The Developer shall grant to the public additional areas of public utility easement as needed in various locations for the placement of water meters, DDCAs, and air valves to the satisfaction of the City Engineer and Utilities Engineer.

5. The Developer is responsible f or making the arrangements to quitclaim all easements of record which conflict with the proposed project prior to issuance of Building Permits. If an easement of record contains an existing utility that must remain in service, proof of arrangements to q uitclaim the easement once new utilities are constructed must be submitted to the City Engineer prior to approval of the Grading plans. Building permits will not be issued for structures in which construction will conflict with existing easements or utilities, nor will any securities be released until the existing easements are quitclaimed.

Material necessary for processing a dedication or easement shall include: a current grant deed or title report, a legal description and plat of the dedication or easeme nt signed and sealed by a person authorized to practice land surveying (document size) and traverse closure tapes. The City will prepare all final documents.

SURVEYING AND MONUMENTATION

1. All property corners shall be monumented by a person authorized to practice land surveying and a Record of Survey Map (or Corner Record if appropriate) shall be recorded.

Attachment "1"
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REPAYMENTS AND FEES

1. A cash security shall be posted to pay any costs incurred by the City to clean-up eroded soils and debris, repair damage to public or private property and improvements, install Best Management Practices devices and materials, and stabilize and/or close -up a non - responsive or abandoned project. Any moneys used by the City for cleanup or damage will be drawn from this security and the gra ding permit will be revoked by written notice to the Developer until the required cash security is replaced. The cleanup cash security shall be released upon final acceptance of the grading and improvements for this project. The amount of the cash security shall be 10% of the total estimated cost of the grading, retaining walls, walls, drainage facilities, landscaping and irrigation, and best management practices items of work up to a maximum of $50,000, unless a higher amount is deemed necessary by the City Engineer.

2. The Developer shall be required to pay all development fees of the City then in effect at the time, and in such amounts as may prevail when Building Permits are issued.

UTILITY UNDERGROUNDING AND RELOCATION

1. Any existing overhead utilities withi n the project boundary or along fronting streets shall be relocated underground as required by the City’s Undergrounding Ordinance.

2. The Developer shall sign a written agreement stating that they have made all such arrangements as may be necessary to coordinate and provide utility construction, relocation and undergrounding. All new utilities shall be constructed underground.

Attachment "1"
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Exhibit “C”
Approved Plans
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PL21-0304

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PL21-0304

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PL21-0304

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PL21-0304

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PL21-0304, Exhibit “D”
Legal Description

Attachment "1"
73 Item7.

PL21-0304

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Exhibit “E”

CITY OF ESCONDIDO

PLANNING DIVISION
201 NORTH BROADWAY
ESCONDIDO, CA 92025-2798
760-839-4671

Notice of Exemption

To: Assessor/Recorder/County Clerk
Attn: Fish and Wildlife Notices
1600 Pacific Hwy, Room 260
San Diego, CA 92101
MS: A-33

From: City of Escondido
Planning Division
201 North Broadway
Escondido, CA 92025

Project Title/Case No: PL21-0304

Project Location - Specific:
1401 South Escondido Blvd (APNs 236-172-14-00 and 236-172-15-00)

Project Location - City: Escondido Project Location - County: San Diego

Description of Project:

A Major Plot Plan Approval for a 54-unit density bonus project, including six units that will be deed restricted for very-low income.

Name of Public Agency Approving Project: City of Escondido

Name of Person or Agency Carrying Out Project:

Name: Greg Drakos

Address: 1783 Crest Drive, Encinitas, CA, 92024 Telephone: 858-525-2195

Private entity School district Local public Agency State agency Other special district

Exempt Status:

The project is categorically exempt pursuant to CEQA Guidelines section 15332, In-Fill Development (Class 32).

Attachment "1"
74 Item7.

PL21-0304

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Reasons why project is exempt:

The project is consistent with the applicable general plan designation, zoning designation, and applicable policies and provides additional affordable housing through the use of the Density Bonus provisions. The proposed development occurs wit hin city limits on a project site of no more than five acres substantially surrounded by urban uses. The project site has no value as habitat for endangered, rare, or threatened species. The project will not create significant effects relating to traffic , noise, air quality, or water quality. The site is adequately services with all applicable utilities and public services. There is also no unusual circumstances that occur on - site.

Lead Agency Contact Person: Sean Nicholas Area Code/Telephone/Extension:
760-839-4546

Signature:

Sean Nicholas Date
Principal Planner

Signed by Lead Agency Date received for filing at OPR:

Signed by Applicant

Attachment "1"
75 Item7.

Law Offices of Andrea Contreras
LAND USE | REAL ESTATE | ENVIRONMENTAL
9921 Carmel Mountain Road, No. 375 | San Diego, CA 92129-2813 [email protected] | 858.733.0002
August 23, 2022
Chair Barba and Members of the Planning Commission
City of Escondido
201 N
orth Broadway
Escondido, CA 92025-2798
Attn: Zack Beck, City Clerk (by email only: [email protected]) Re: Appeal of Condition 11 of Plot Plan No.: PL21-0304
Dear Chair Barba and Planning Commissioners:

I represent Cross Real Estate Investors, LLC (“Cross”), the prospective owner and developer of fifty-four (54)
w
orkforce1 and affordable housing units at 1401 & 1405 S. Escondido Avenue (the “Project”). The Project will create forty-eight (48) workforce units and six (6) affordable housing units on a site with prior residential and commercial uses. On August 23, 2022, the City conditionally approved a Plot Plan for the Project. The purpose of this letter is to appeal Plot Plan Condition 11, which reads as follows:

Condition of Approval 11: C osts of Municipal Services. In accordance with the General Plan, t he Developer shall fund all on- going operational costs of providing municipal services required for the Project, the amount of such funding shall be in accordance with the special tax levy adopted annually by the City Council based on the project density, unless another amount is approved by the City Council at the time of Project approval .

Such funding shall occur through either an agreement to form or annex into a Community Facilities District (“CFD”) or the establishment of another lawful funding mechanism reasonably acceptable to the City (“Public Services Funding Agreement”). Projects that elect to annex into the Services CFD shall submit consent forms prior to the first permit issuance if they have not done so already . The provisions of the Public Services Funding Agreement shall specify any terms and limitations necessary to implement the CFD or other funding mechanism to offset the impacts to public services associated w ith the project. The City Manager, or City Manager’s designee, shall be authorized to approve and execute the Public Services Funding Agreement, and the Public Services Funding Agreement shall be finalized prior to the City’s issuance of any permit for the Project.

Cross requests the planning commission grant the appeal and strike Co ndition 11. The Condition essentially
requires annexation into CFD No. 2020-1, also known as the City’s “Service CFD”. Based on the current uncertainty regarding the legality of CFD No. 2020-1, the Condition should be struck. I n the alternative, Cross requests the condition be waived in accordance with state Density Bonus laws.

Community Facilities District No. 2020-1 is Legally Unsound On February 26, 2021, the Building Industry Association of San Diego County filed a Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief against the City of Escondido and 1 Workforce housing refers to those dwelling units that are naturally affordable to a working population and does not include luxury amenities that would otherwise drive up the price, as with Class “A” projects.

Attachment "2"
76 Item7.

Law Offices of Andrea Contreras

9921 Carmel Mountain Road, No. 375 | San Diego, CA 92129-2813 [email protected] | 858.733.0002
2 the City Council of Escondido (“Petition”) challenging the legality of Council Resolution No. 2020- 44 (“Resolution”), which establishes the requirement of future annexation into the CFD.2 The Petition alleges the CFD was improperly formed, the Resolution and the CFD violate California state law and the California Constitution, and that the City Council acted without proper authority, among many other allegations. The lawsuit is underway, and no trial date has been set.

Cross submits the City should not be implementing the CFD and Resolution until the lawsuit is decided. It is arbitrary and capricious to subject Cross to a requirement that is legally questionable, if not unconstitutional.

Cross has also learned the Counc il approved a sales tax increase ballot measure that will be on the November 2022 election ballot. The measure is popular and expected to pass.3 The purpose of the sales tax increase is to provide a significant infusion into the budget and alleviate the need for development fees over and above the current impact fees, which are already a barrier to affordable and workforce housing.

The City Should Waive the Condition for this Project Under Density Bonus Law Cross initially submitted a plot plan application for this Project to the City in Ju ne of 2021. Since then, construction and other project costs have increased by more than 35%. Due to the affordable housing aspect of the Project, application of the special assessment required by CFD 2020- 1 will make the Project economically infeasible. We request the City waive the requirement for this Project as an incentive under California’s density bonus law.

Density Bonus Incentive
Due to the provision of affordable units, Cross is entitled to certain incentives under both state and local density bonus law. Cross requests the City grant the concession of waiving annexation into CFD 2020-1 for the Project.

California Government Code section 65915 provides as follows:
(d)(1) An applicant for a density bonus [as requested in accordance with subdivision] (b) may submit to a city, county, or city and county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and county shall grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost reductions, consistent with subdivision (k), to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units t o be set as specified in subdivision (c).

2 Building Industry of San Diego County v. City of Escondido, et al., Superior Court for the County of San Diego, Case No. 37- 2021-00008423.
3 https://www.sandiegouniontribune.com/communities/north-county/escondido/story/2022-07-17/escondido-sales-tax

Attachment "2"
77 Item7.

Law Offices of Andrea Contreras

9921 Carmel Mountain Road, No. 375 | San Diego, CA 92129-2813 [email protected] | 858.733.0002
3 (B) The concession or incentive would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low- income and moderate-income households.
(C) The concession or incentive would be contrary to state or federal law. (Emphasis added).

Government Code section 65915(k) directs that an incentive or concession “does not limit . . . the provision of direct financial incentives for the housing development” and further notes an applicant may request incentives such as waiving fees or costs.

Escondido Municipal Code (“EMC”) section 33- 414 (D) allows the City to grant regulatory incentives or concessions proposed by the developer that result in identifiable, financially sufficient, and actual cost reductions that contribute to the economic feasibility of a project. EMC section 33-414(E) allows the City to provide direct financial incentives in the form of a waiver of fees or dedication requirements.

The Project is entitled to three incentives under the state Density Bonus law. The breakdown of the application of density bonus and incentives is as follows:

DENSITY BONUS - 2021 (AB 2345)

CALCULATION
Maximum Permitted Density 30 Units
Property Size 1.17 Acres
Allowable Units at Max Density 36

Affordable Units 15% 6
Density Bonus Units 50% 18

Base Units 36
Density Bonus Units 18
Total Units 54

Market Rate Units 48
Affordable Units 6
Total Units 54
% Affordable 13.0%
Incentives 3

A court recently determined the City must have supporting evidence to determine the requested “concession or incentive does not result in identifiable and actual cost reductions” in order to deny the request. Schreiber v. City of Los Angeles (2021) 69 Cal.App.5th 549. The law recognizes a presumption the concession or incentive will result in an identifiable and actual cost reduction. “By requiring the city to gran t incentives Attachment "2"
78 Item7.

Law Offices of Andrea Contreras
9921 Carmel Mountain Road, No. 375 | San Diego, CA 92129-2813 [email protected] | 858.733.0002
4 unless it makes particular findings, the statute places the burden of proof on the city to overcome the presumption that incentives will result in cost reductions.” Id. at 556.

This project will provide much -needed infill affordable and workforce housing. In today’s economic climate, with rising interest rates, construction and long-term financing are more difficult to obtain than in recent years. To require an additional $783 per dwelling unit per year simply makes the project unfinanceable and infeasible. There is no evidence waiver of CFD No. 2020-1 will not result in identifiable and actual cost reductions. There is no evidence waiver of CFD No. 2020-1 will result in a specific adverse impact to public health or safety, or that the concession is contrary to state or federal law. Therefore, Cross respectfully asks the Planning Commission to grant its request to waive annexation into CFD No. 2020- 1 as a concession to its affordable project under the state and local density bonus laws.

The CFD No. 2020-1 was established to establish financing for the provision of public services for a new single-family, large-scale master planned community subdivision at the edge of the City limits. There had never been any other development there, and extending necessary public services came with a cost. That cost was covered by CFD No. 2020-1. The City went on to require all new residential projects be included in the CFD. This project is an infill project that is replacing existing development. At least some of the cost contemplated by CFD No. 2020-1 is already provided for in the current budget.

Requiring the annexation into the CFD raises uncertainty for this project. The City will have to evaluate the
amount of the tax to be levied against the development. Gov. Code section 53339.3(d) states the special tax cannot be higher than the established tax in the existing CFD, “except that a higher or lower tax may be levied within the territory proposed to be annexed or to be annexed in the future to the extent that the actual cost of providing the services in that territory is higher or lower than the cost of providing those services in the existing district.”
We do not know the cost of those services and the annexation process will not take place until some future time. This uncertainty is untenable for a project like this.

The City has waived the annexation into the CFD in the past—most significantly to the much larger market- rate housing development on the former Palomar Hospital site. This affordable housing project should not bear the financial burdens of market-rate housing.

For the foregoing reasons, Cross respectfully requests the Planning Commission strike the condition requiring annexation into CFD No. 2020- 1, or in the alternative, recommend the City Council waive the annexation requirement for this affordable housing project.

Sincerely,
An
drea Contreras
Cc: Andrew Firestine, Director of Developme nt Services (by email only: [email protected]) Sean Nicholas, Principal Planner (by email only: [email protected]) Attachment "2"
79 Item7.

Agenda Item No.: G.1
Date: September 13, 2022
PROJECT NUMBER / NAME: PL21-0304 / 1401 S. Escondido Blvd. Apartments REQUEST: An appeal of a Condition of Approval applied to a Major Plot Plan requiring funding of ongoing municipal services required by the project
LOCATION: 1401 S. Escondido Blvd.

APN / APNS:236-172-14-00 and 236-172-15-00
GENERAL PLAN / ZONING: Specific Plan Area
(SPA 15) / Specific Plan (S-P; South Centre City
Specific Plan)
APPLICANT: Cross Real Estate Investors,
LLC.

PRIMARY REPRESENTATIVE:

Greg Drakos
DISCRETIONARY ACTIONS REQUESTED: Appeal of a Plot Plan approval.

PREVIOUS ACTIONS: The Plot Plan was administratively approved by the Director of Development Services on August 24, 2022.

PROJECT PLANNER: Sean Nicholas, Principal Planner
CEQA RECOMMENDATION: The development was determined to be categorically exempt pursuant to California Environmental Quality Act (CEQA) Guidelines section 15332 (In -fill Development Projects).

STAFF RECOMMENDATION: Recommend the City Council deny the appeal and uphold the Director’s decision.

REQUESTED ACTION: Adopt Resolution No. 2022-07.

CITY COUNCIL HEARING REQUIRED: ☒ YES ☐ NO
REPORT APPROVALS: ☐ Andrew Firestine, Director of Development Services ☐ Adam Finestone, City Planner
PC 09/13/202

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Attachment "3"
80 Item7.

Project Name: PL21-0304
Planning Commission Meeting
Date: September 13, 2022

2 A. BACKGROUND:

An administrative approval for a Plot Plan, inclusive of a density bonus, was issued on August 24, 2022, for a 54 -unit apartment complex located at 1401 S. Escondido Blvd. The project includes six units that will be deed-restricted for very-low income households. The applicant appealed the inclusion of a condition of approval applied to the project which requires the developer to fund ongoing operational costs of providing municipal services required for the project. The appeal is based on the premise that density bonus projects are entitled to certain incentives and waivers, in addition to an increase in allowable density, in order to make a project financially feasible.

All other aspects of the project have been approved and not subject to the appeal.

B. ANALYSIS:

Density bonus law (Government Code section 65915 et. seq.) and Article 67 of the Escondido Zoning Code (Density Bonus and Residential Incentives) are intended to encourage the development of affordable housing. This is accomplished through the allowance fo r an increase in residential density above what would typically be allowed for a property, and through the provision of incentives and waivers from development standards that make construction of the project infeasible.

Allowable increases in density are based on a sliding scale that involves both the percentage of affordable units being provided, and the level of affordability of those units. Current zoning for the subject property would allow a total of 36 units ; however, by deed restricting 15% of those units (amounting to six units) for very-low income households, the project is eligible for a 50% increase in allowable density, resulting a total allowance of 54 units.

The percentage of affordable units and level of affordability also entitles the applicant to three incentives and waivers. The incentives for this project include an increase in the maximum height allowance (from 45 feet and three stories to 49 feet and four stories), and a reduction in the amount of required open space (from 300 square feet per unit to 60 square feet per unit). The applicant has also requested an incentive to facilitate the construction of the project by eliminating the requirement to fund ongoing operational costs of providing munici pal services required for the project. This requirement is identified as Condition of Approval A.11 in the Letter of Conditional Approval dated August 24, 2022, and included as Attachment 1 to this staff report. Specifically, the condition states:

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Attachment "3"
81 Item7.

Project Name: PL21-0304
Planning Commission Meeting
Date: September 13, 2022

3 CFD shall submit consent forms prior to the first permit issuance if they have not done so already. The provisions of the Public Services Funding Agreement shall specify any terms and limitations necessary to implement the CFD or other funding mechanism to offset the impacts to public services associated with the project. The City Manager, or Ci ty Manager’s designee, shall be authorized to approve and execute the Public Services Funding Agreement, and the Public Services Funding Agreement shall be finalized prior to the City’s issuance of any permit for the Project.

Government Code section 95915(l) states that density bonus law “…does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements. ” Similarly, section 33 -1414(a)(2)(E) of the City of Escondido Municipal Code states that “the city council may, but is not required to, provide direct financial incentives, including direct financial aid in the form of a loan or grant, the provision of publicly owned land, or the waiver of fees or dedication requirements. ” Staff has consistently interpreted this to mean that the City is not required under density bonus law to waive fees or provide other direct financial incentives for a h ousing development and that staff does not have the authority to do so under the City of Escondido Municipal Code or the current City Council adopted policy concerning the funding of municipal services by new development.

Costs of Municipal Services

- On June 12, 2019, the City Council directed staff to investigate all options to address the structural budget deficit to ensure the budget deficit does not grow as the City develops, including evaluating the feasibility of a Citywide Services CFD as a streamlined means for projects to offset their ongoing impact to the general fund.

- On April 8, 2020, the City Council indicated its intent to require new residential development to offset the ongoing costs of providing public services.

- On May 13, 2020, the City Council held a duly noticed public hearing and adopted Resolution No. 2020-44 (Resolution of Formation) establishing CFD 2020-1, the Citywide Services CFD.

- On September 16, 2020, the City Council adopted Resolution No. 2020 -115 annexing five projects with 66 units into CFD 2020-1 creating the second (2) zone of the Services CFD (Zone 2020-2).

PC 09/13/202

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Attachment "3"
82 Item7.

Project Name: PL21-0304
Planning Commission Meeting
Date: September 13, 2022

4 - On September 23, 2020, the City Council restated its intent to require new residential development to offset the ongoing costs of providing public services , specifically noting that the requirement be applied to any project approved after May 13, 2020.

- On October 21, 2020, the City Council adopted Resolution No. 2020-147 annexing a 42- unit project located at 2608 S. Escondido Blvd. into CFD 2020 -1 and creating the third (3) zone of the Services CFD (Zone 2020-03).

- On November 18, 2020, the City Council adopted Resolution No. 2020-160 annexing two (2) projects containing 21 units into CFD 2020-1 creating the fourth zone of the Services CFD (Zone 2020-04).

- On July 21, 2021, the City Council adopted Resolution No. 2021-77 approving the special tax rate for CFD 2020-1 (Public Services).

Planning Commission Review

Pursuant to Zoning Code Section 33-1304, decisions of the director may be appealed to the Planning Commission. However, because the requirement to fund all on-going operational costs of providing municipal services is a policy established by City Council, the Planning Commission does not have decision -making authority on the appeal. At its public hearing related to the Palomar Heights project on September 22, 2020, the Planning Commission specifically discussed this issue, at which time staff indicated that the Commission did not have the authority to waive Council policy. As such, the Planning Commission is acting in an advisory role to City Council on this appeal.

C. CONCLUSION AND RECOMMENDATION:

The Director of Development Services applied Condition of Approval A.11 to the project approval, requiring the project to fund all on-going operational costs of providing municipal services. Because the condition is consistent with current City Council policy, and because neither the Government Code nor the City of Escondido Municipal Code require the City to provide direct financial assistance to a density bonus project, staff does not support the removal of said condition. As such, and because the Planning Commission is serving in an advisory role to City Council on this appeal, staff recommends that the Planning Commission adopt Resolution No. 2022-07, recommending City Council deny the appeal and uphold the Director’s decision to approve the project subject to all conditions of approval contained in the Conditional Letter of Approval attached to this staff report.

ATTACHMENTS:

1. Plot Plan Conditional Letter of Approval dated August 24, 2022

2. Appeal of condition of approval

3. Planning Commission Resolution No. 2022-07

PC 09/13/202

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Attachment "3"
83 Item7.

RESOLUTION NO. 2022-139

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, DENYING THE APPEAL OF THE

STANDARD CONDITION OF APPROVAL AND REQUIR ING

PAYMENT FOR ONGOING MUNICIPAL SERVICES

WHEREAS, Cross Real Estate Investors, LLC. (“Applicant”), filed a land use development application, Planning Case No. PL21-0304 (“Application”), constituting a request for a Plot Plan for a 54 - unit apartment complex including six deed-restricted very-low income units (“Project”) on a 1.17 net acre site located at 1401 S. Escondido Blvd. (Assessor’s Parcel Numbers 236-172-14-00 and 236-172-15-00), in the South Centre City Specific Plan; and
WHEREAS, the subject property is all that real property described in Exhibit “A” which is attached hereto and made a part hereof by this reference as though full set forth herein (“Property”); and WHEREAS, the Application was submitted to, and processed by, the Planning Divis ion of the Development Services Department in accordance with the rules and regulations of the Escondido Zoning Code and the applicable procedures and time limits specified by the Permit Streamlining Act (Government Code section 65920 et seq.) and the California Environmental Quality Act (Public Resources Code section 21000 et seq.) (“CEQA”); and
WHEREAS, pursuant to CEQA and CEQA Guidelines (Title 14 of California Code of Regulations, section 15000 et. seq.) the City is the Lead Agency for the Project, as the public agency with the principal responsibility for approving the Project, and it was determined that the Project as a whole is categorically exempt from further review pursuant to CEQA Guidelines section 15332 (Class 32) – Infill Development Projects; and
84 Item7.

WHEREAS, the Planning Division studied the Application, performed necessary investigations, and the Director of Development Services approved the Plot Plan for the Project as depicted in the administrative approval and subject to all conditions of approval included in the administrative approval; and
WHEREAS, the Applicant submitted an appeal of one condition of approval associated with the payment of costs associated with providing ongoing municipal services; and WHEREAS, no other aspect of the Plot Plan approval has been appealed, and all other components of the Project have been approved and are not subject to the appeal; and WHEREAS, on September 13, 2022, the Planning Commission held a duly noticed public hearing as prescribe by law, at which time the Planning Commission received and con sidered the report and recommendation of the Planning Division and gave all persons full opportunity to be heard and to present evidence and testimony, regarding the appeal. Evidence was submitted to and considered by the Planning Commission, including, without limitation:
a. Written information and other material submitted by the Applicant; b. Oral testimony from City staff, interested parties and the public; c. The staff report, dated September 13, 2022, with its attachments as well as City staff recommendation on the appeal;
d. Additional information submitted during the public hearing; and WHEREAS, following the public hearing, the Planning Commission adopted Resolution No. 2022- 07, recommending that the City Council grant the appeal; and 85 Item7.

WHEREAS, on September 28, 2022, the City Council held a duly noticed public hearing as prescribed by law. Evidence was submitted to and considered by the City Council, includin g without limitation:
a) written testimony from City staff, interested parties, and the public; b) oral testimony from City staff, interested parties and the public; c) the City Council staff report, dated September 28, 2022, with its attachments as we ll as City staff recommendation on the appeal, which is incorporated herein by this reference as though fully set forth herein;
d) the Planning Commission’s recommendation; and
e) additional information submitted during the public hearing.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California, as follows:

1. That the above recitations are true.

2. That the Findings of Fact attached hereto as Exhibit “B” are hereby made by this City Council, and represent the City Council’s careful consideration of the record. The findings of this City Council contained in Exhibit “B” shall be the final and determinative Findings of Fact related to this appeal.

3. That upon consideration of the Findings, the staff report dated September 28, 2022 (a copy of which is on file in the Office of the City Clerk), public testimony presented at the meeting, and all 86 Item7.
other oral and written evidence regarding the appeal, the City Council hereby denies the appeal of the standard condition of approval requiring payment for ongoing municipal services for the Project. 87 Item7.

Resolution No. 2022-139
Exhibit “A”

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Exhibit “A”
Legal Description

88 Item7.

Resolution No. 2022-139
Exhibit “B”

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EXHIBIT “B”

FINDINGS OF FACT
The City Council has reviewed the record, and makes the following findings for denying the appeal of the condition of approval that requires ongoing payment for municipal services:

2. Removal of the condition of approval is contrary to the City Council adopted policy requiring future residential projects to fund all on -going operational costs of providing municipal services.
89 Item7.

RESOLUTION NO. 2022-140

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, GRANTING THE APPEAL OF

THE STANDARD CONDITION OF APPROVAL AND

WAIVING THE REQUIREMENT FOR PAYMENT FOR

ONGOING MUNICIPAL SERVICES

WHEREAS, on September 28, 2022, the City Council held a duly noticed public hearing as prescribed by law. Evidence was submitted to and considered by the City Council, includin g without limitation:
a) written testimony from City staff, interested parties, and the public; b) oral testimony from City staff, interested parties and the public; c) the City Council staff report, dated September 28, 2022, with its attachments as well as City staff recommendation on the appeal, which is incorporated herein by this reference as though fully set forth herein;
d) the Planning Commission’s recommendation; and
d) additional information submitted during the public hearing.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California, as follows:

1. That the above recitations are true.

3. That upon consideration of the Findings, the staff report dated September 28, 2022 (a copy of which is on file in the Office of the City Clerk), public testimony presented at the meeting, and all other oral and written evidence regarding the appeal, the City Council hereby grants the appeal of the 92 Item7.
standard condition of approval and waives the requirement for payment for ongoing municipal services for the Project.
93 Item7.

Resolution No. 2022-140
Exhibit “A”

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Exhibit “A”
Legal Description

94 Item7.

Resolution No. 2022-140
Exhibit “B”

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EXHIBIT “B”

FINDINGS OF FACT

The City Council has reviewed the record, and makes the following findings for approving the appeal of the condition of approval that requires ongoing payment for municipal services:

1. On September 23, 2020, following multiple public hearings, the City Council adopted a policy requiring all new residential development approved after May 13, 2020, to pay for their ongoing costs of providing municipal services. However, the City’s required regional housing needs assessment (RHNA) identified a goal of an additional 9 ,607 housing units, 1864 of which need to provide housing to very -low income individuals or families. The six deed- restricted units for very-low income households included in t his project will help contribute to that goal. Additional ongoing costs would negatively impact the ability to provide these deed restricted units.

2. Removal of the condition of approval would support the City Council adopted Housing Element policies promo ting the development of very -low income deed -restricted housing units to meet the City’s RHNA goals, and removing the funding requirement would support the development of very-low income deed-restricted units. 95 Item7.

STAFF REPORT

September 28, 2022
File Number 0610-75

SUBJECT

APPEAL OF A CONDITION OF APPROVAL APPLIED TO A MAJOR PLOT PLAN REQUIRING FUNDING OF

ONGOING MUNICIPAL SERVICES REQUIRED BY THE PROJECT

DEPARTMENT
Development Services Department, Planning Division

RECOMMENDATION
It is requested that the City Council consider an appeal of a condition of approval requiring funding of ongoing municipal services required for a 48-unit apartment project located at 1600 S. Escondido Boulevard and either a) adopt Resolution No. 2022-141, denying an appeal and upholding a condition of approval; or b) adopt Resolution No 2022 -142, granting the appeal and waiving the condition of approval.

Staff Recommendation: Denial of appeal (Development Services Department: Andrew Firestine) Planning Commission Recommendation: Granting of appeal (Vote: 4-2-0) Presenter: Adam Finestone, City Planner

BACKGROUND
An administrative approval for a Plot Plan, inclusive of a density bonus, was issued on July 28, 2022, for a 48-unit apartment complex located at 1600 S. Escondido Blvd. (included as Attachment “1” to this staff report). The project includes five units that will be deed-restricted for very-low income households. The applicant appealed the inclusion of the condition of approval which requires the developer to fund ongoing operational costs of providing municipal services required for the project. The appeal , a copy of which is included as Attachment “2” to this report, is based on the premise that density bonus projects are entitled to certain incentives and waivers, in addition to an increase in allowable density, in order to make a project financially feasible. (All other aspects of the project have been approved and not subject to the appeal.)

On April 8, 2020, the City Council indicated its intent to require new residential development to offset the ongoing costs of providing public services.

On May 13, 2020, the City Council held a duly noticed public hearing and adopted Resolution No. 2020 - 44 (Resolution of Formation) establishing CFD 2020-1, the Citywide Services CFD. 97 Item8.

On September 16, 2020, the City Council adopted Resolution No. 2020-115 annexing five projects with 66 units into CFD 2020-1 creating the second (2) zone of the Services CFD (Zone 2020-2).

On November 18, 2020, the City Council adopted Resolution No. 2020 -160 annexing two (2) projects containing 21 units into CFD 2020-1 creating the fourth zone of the Services CFD (Zone 2020-04).

On July 21, 2021, the City Council adopted Resolution No. 2021-77 approving the special tax rate for CFD 2020-1 (Public Services) for fiscal year 2021/22.

On September 15, 2021, the City Council adopted Resolution No. 2021 -130 annexing three (3) projects containing 65 units into CFD 2020-1 creating the fifth (5) zone of the Services CFD (Zone 2020-5).

On March 2, 2022, the City Council adopted Resolution No. 2022-14 annexing two (2) projects containing 44 units into CFD 2020-1 creating the sixth (6) zone of the Services CFD (Zone 2020-6).

On July 20, 2022, the City Council adopted Resolution No. 2022-87 approving the special tax rate for CFD 2020-1 (Public Services) for fiscal year 2022/23.

Council policy requires that all new residential development off -site their impacts to ongoing municipal services. This requirement is identified as Condition of Approval A.11 in the Letter of Conditional Approval dated July 28, 2022, and included as Attachment “1” to this staff report. Specifically, the condition states:

Community Facility District or Funding Mechanism. The Applicant shall fund all on-going operational costs of providing municipal services required for the Pr oject, the amount of such funding to be determined by the City Council at the time of Project approval. Such funding shall occur through either an agreement to form or annex into a Community Facilities District (“CFD”) or the establishment of another lawf ul funding mechanism reasonably acceptable to the City (“Public Services Funding Agreement”). The provisions of the Public Services Funding Agreement shall specify any terms and limitations necessary to implement the CFD or other funding mechanism to offset the impacts to public services associated with the project. The City Manager, or City Manager’s designee, shall be authorized to approve and execute the Public Services Funding Agreement, and the Public Services Funding Agreement shall be finalized prior to the City’s issuance of any permit for the Project. 98 Item8.

The condition cited above is consistent with existing City Council policy requiring all residential development to offset its impact on the general fund by providing an ongoing funding source to pay for public services demanded by the project. The Condition provides an option for the applicant to either form or annex into the CFD or the establishment of another lawful funding mechanism reasonably acceptable to the City (“Public Services Funding Agree ment”). Should the applicant choose to form or annex into a CFD, the estimated fee based on the density of the project , which is adjusted annually, is identified in the table below:

CFD levy per unit # of Units Total annual Cost per unit 40+ du/ac (year) levy monthly
$840 48 $40,320 $70
PLANNING COMMISSION RECOMMENDATION:

Appeals of administrative decisions of the Director of Development Services require public hearings before the Planning Commission. However, because the Planning Commission does not have the authority to waive City Council policies and fees, they serve in an advisory role to the City Council on this matter. It should be noted that the Planning Commission considered an appeal of the same condition of approval for another project immediately prior to this one, and the discussion below reflects the combined deliberations of both appeals.

During deliberation, Commissioner Paul moved to grant the appeal only for the five units that would be deed-restricted as affordable units, however the motion failed to gain a second. Also during deliberation, 99 Item8.

the Commission discussed potential support for the City Council to reconsider and evaluate the overall policy requiring funding of ongoing public services due to potential impediment s it has on the ability to construct infill and affordable multi-family housing projects.

ANALYSIS

Allowable increases in density are based on a sliding scale that involves the percentage of affordable units being provided, and the level of affordability of those units. Current zoning for the subject property would allow a total of 31 units; however, by deed restricting 15% of those units (amounting to five units) for very-low income households, the project is eligible for a 50% increase in allowable density, resulting in a total allowance of 48 units.

The percentage of affordable units and level of affordability also entitles the applicant to three incentives and waivers. The incentives for this project include a reduction in open space, parking design requirements, and design standa rds. The applicant has also requested , as an incentive to facilitate the construction of the project , the elimination of the requirement to fund ongoing operational costs of providing municipal services required for the project.

Government Code section 95915(l) states that density bonus law “…does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements.” Similarly, section 33-1414(a)(2)(E) of the City of Escondido Municipal Code states that “the city council may, but is not required to, provide direct financial incentives, including direct financial aid in the form of a loan or grant, the provision of publicly owned land, or the waiver of fees or dedication requirements.” Staff has applied the condition of approval in question based on existing City Council Policy. Neither City policy nor the Government Code give staff the authority to waive the condition, however the City Council does have the authority to do so.

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CONCLUSION

Based on that policy, staff recommends the appeal be denied and that the condition be maintained as part of the project approval.

RESOLUTIONS
a. Resolution No. 2022-141
b. Resolution No. 2022-141 – Exhibit “A” Legal Description c. Resolution No. 2022-141 – Exhibit “B” Findings of Fact d. Resolution No. 2022-142
e. Resolution No. 2022-142 – Exhibit “A” Legal Description f. Resolution No. 2022-142 – Exhibit “B” Findings of Fact

ATTACHMENTS
a. Attachment “1” – Plot Plan Conditional Letter of Approval dated July 28, 2022 b. Attachment “2” – Appeal of Plot Plan Condition of Approval c. Attachment “3” – Planning Commission Staff Report dated September 13, 2022 101
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Adam Finestone, AICP
City Planner
Planning Division
201 North Broadway, Escondido, CA 92025
Phone: 760-839-4671 Fax: 760-839-4313
`
July 28, 2022
Scott Maas
FieldXStudio
2033 San Elijo Ave., #643
Cardiff by the Sea, CA 92007
Subject: Plot Plan and Density Bonus for 48 apartment units (City Project No. PL22-0032) Location: 1600 S. Escondido Boulevard (APN 236-460-16-00) Dear Mr. Maas:

This letter serves to inform you that the City of Escondido has completed its review, and does hereby conditionally appro ve Planning Case No. PL22-0032, which is a Major Plo t Plan and Density Bonus to develop 48 apartment units (two, 3-story buildings) and 58 surface parking spaces located at 1600 S. Escondido Boulevard (“Project”) based on the Findings of Fact contained in Exhibit “A” attached hereto. The Project includes a 50 percent density bonus to include 17 density bonus units (five very low-income units) for a total of 48 units per the provisions of the State of California Density Bonus Law and Article 67 of the Escondido Zoning Code. The Density Bonus also includes approval of certain concession/incentives. The Project will include 18 one -bedroom and 30 two -bedroom units . The existing commercial office building will be demolished. The subject property is located within the South Centre City Specific Plan (SPA 15) and Escondido Boulevard District that allows multi-family residential development.

This approval is subject to the Conditions of Approval attached as Exhibit “B” hereto. Compliance with the Conditions of Approval must be demonstrated on subsequently submitted plans for the project (building plans, grading/improvement plans, landscape plans, etc.). Said plans shall be in substantial conformance with those attached as Exhibit “ C” hereto and on file with the Planning Division, except as modified by the Conditions of Approval in Exhibit “B.” Please note that the Plot Plan was reviewed for consistency with current City ordinances and policies and in no way vests any rights to the developer to construct to these st andards in the future if the City ordinances and policies change. Additionally, please be aware that the Plot Plan was reviewed based on the assumption that the legal description for the subject property furnished by you, the applicant, and attached as Exhibit “ D” hereto, is acc urate, and that all easements, covenants, conditions, and other encumbrances and restrictions relating to the property have been completely and accurately dep icted, described, and disclosed. Neither the City of Escondido nor any of its officers or employees assumes responsibility for the accuracy of said information.

PLAN PROCESSING REQUIREMENTS:

One revised hard-copy and one electronic copy of the Plot Plan reflecting conformance with the Conditions of Approval shall be submitted for review by the Planni ng Division. Said Plot Plan must be certified by the Planning Division prior to submittal of other plans (e.g., building, grading, landscape) for the Project.

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Pursuant to Government Code section 66020(d)(1), NOTICE IS HEREBY GIVEN that the project is subject to certain fees described in the City’s Development Fee Inventory on file in both the Planning Division and Engineering Services Division (Development Services Department). Said fees shall be paid prior to or concurrent with the issuance of building permits, in accordance with the prevailing fee schedule in effect at the time of building permit issuance. The project may also be subject to dedications, reservations, and exactions as specified in the conditions of approval.

NOTICE IS FURTHER GIVEN that the 90 -day period to protest the imposition of any fee, dedication, reservation, or other exaction described in this letter begins on the date of this letter and any such protest must be in a manner that complies with Government Code section 66020.

ENVIRONMENTAL DETERMINATION
This project has been determined to be exempt from further environmental review, pursuant to California Environmental Quality Act ( CEQA) Guidelines section 15332 (In-fill Development Projects). A Notice of Exemption has been prepared for the Project, a copy of which is attached to this letter as Exhibit “ E.” Approval of the subject project includes approval of the CEQA exemption.

The City of Escondido hereby noti fies the applicant that the San Diego County Clerk’s Office requires a documentary handling fee of $50 in order to file a Notice of Exemption for the Project.

The applicant shall remit to the City of Escondido Planning Division a check payable to the “San Diego County Clerk” in the amount of $50 within two working days of the date of this letter. Per CEQA Guidelines section 15062, the filing of a Notice of Exemption and the posting with the San Diego County Clerk starts a 35-day statute of limitations period on legal challenges to the agency’s determination that the project is exempt from CEQA. Failure to submit the required fee within the specified time noted above will result in the Notice of Exemption not being filed with the County Clerk, and a 180-day statute of limitations period will apply.

CONCLUSION
The owner, or authorized agent, shall sign the Acknowledgement and Acceptance of Conditions of Approval form included with this letter and return it within 10 days of receipt of this letter.

Approval of this Plot Plan, including the Conditions of Approval applied to it, may be appealed as prescribed in Section 33-1303 of the Escondido Zoning Code. If no appeal is filed, the approval shall become final on the 11th day following the date of this letter.

This Plot Plan approval will expire two years from the date of this letter. If no building permit is obtained during this period, the approval shall be considered null and void. A one-year extension of the conditional approval may be granted, after consideration of the Director of Development Services, upon written request and submittal of the required fee prior to the expiration date.

Attachment "1"
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Please feel free to contact me at (760) -839-4537, or via email at [email protected] , if you have any questions.

Sincerely,

JPaul

Jay Paul
Senior Planner

Exhibits:

A. Findings of Fact
B. Conditions of Approval
C. Project Plans
D. Legal Description
E. CEQA Notice of Exemption

cc: Adam Finestone, City Planner

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EXHIBIT A

FINDINGS OF FACT

Environmental Determinations:

2. The proposed project qualifies for an exemption from the California Environmental Quality Act (CEQA) under Section 15332, Class 32 In-fill Development Project.

3. The City Planner , or their designee, has independently considere d the full administrative record before it, which includes but is not limited to materials and evidence submitted by the applicant and other interested parties, and input provided by other City departments and public agencies. No substantial evidence has been submitted that would support a finding that any above-described exemption is not applicable to the Project. The Project will not have a significant effect on the environment, and all of the requirements of CEQA have been met.

Plot Plan Findings

The City Planner, or their designee, has reviewed the record, including applicable CEQA findings, and makes the following findings for a Plot Plan Permit:

2. The Plot Plan is granted subject to such conditions as deemed necessary to meet the standards of the use and zone in which it is located and to comply with applicable design standards.

3. The Plot Plan is granted subject to such additional conditions as deemed n ecessary and desirable to preserve the public health, safety and general welfare.

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EXHIBIT B

CONDITIONS OF APPROVAL

This p roject is conditionally approved as set forth on the application received by the City of Escondido on January 19, 2022, and the Project drawings consisting of Site Plans, Floor Plans, Sections, Architectural Elevations, Civil Sheets/Grading, Concept Landscape Plans and Colored Elevations and Perspectives; all designated as approved on July 2 8, 2022, and shall not be altered without express authorization by the Development Services Department.

For the purpose of these conditions, the term “Applicant” shall also include the Project proponent, owner, permittee, and the Applicant’s successors in interest, as may be applicable.

A. General:

a. Acceptance of the Permit by the Applicant; and

2. Permit Expiration. The Permit shall be deemed expired if a building permit has not been obtained or work has been discontinued in the reliance of that building permit within two years of this approval. If no building permits are required, the City may require a noticed hearing to be scheduled before the authorized agency to determine if there has been demonstrated a good faith intent to proceed, pursuant to and in accordance with the provision of this Permit.

3. Certification. The City Planner, or his/her designee, is authorized and directed to make, or require the Applicant to make, all corrections and modifications to the Project drawings and any other relevant document comprising the Project in its entirety, as necessary to make them internally consistent and in conformity with the final action on the Project. This includes amending the Project drawings as necessary to incorporate revisions made by the decision-making body and/or reflecting any modifications identified in these conditions of approval. One hard copy and one electronic copy of the final Approved Plan set demonstrating conformance with the Conditions of Approval , shall be submitted to the Planning Division for certification. Said pla ns must be certified by the Planning Division Attachment "1"
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prior to submittal of any post -entitlement permit, including grading, public improvement, landscape, or building plans for the Project.

4. Conformance to Approved Plans.

a. The operation and use of the subject property shall be consistent with the Project Description and Details of Request, designated with the Approved Plan set.

b. Nothing in this Permit shall authorize the Applicant to intensify the authorized activity beyond that which is specifically described in this Permit.

c. Once a permit has been issued, the Applicant may request Permit modifications. “Minor" modifications may be granted if found by the City Planner to be in substantial conformity with the Approved Plan set, including all exhibits and Permit conditions attached hereto. Modifications beyond the scope described in the Approved Plan set may require submittal of an amendment to the Permit and approval by the authorized agency.

6. Certificate of Occupancy.

a. No change in the character of occupancy or change to a different group of occupancies as described by the Building Code shall be made without first obtaining a Certificate of Occupancy from the Building Official, as required, an d any such change in occupancy must comply with all other applicable local and state laws.

b. Prior to final occupancy, a Planning Final Inspection shall be completed to ensure that the property is in full compliance with the Permit terms and conditions. Th e findings of the inspection shall be documented on a form and content satisfactory to the City Planner.

7. Availability of Permit Conditions.

a. Prior to grading permit issuance, the Applicant shall cause a covenant regarding real property to be recorded that sets forth the terms and conditions of this Permit approval and shall be of a form and content satisfactory to the City Planner.

b. The Applicant shall make a copy of the terms /conditions of this Permit readily available to any member of the public or City staff upon request. Said terms and Attachment "1"
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conditions shall be printed on any construction plans that are submitted to the Building Division for plan check processing.

9. Compliance with Federal, State, and Local Laws. Nothing in this Permit shall relieve the Applicant from complying with conditions, performance standards, and regulations generally imposed upon activities similar in nature to the activity authorized by this permit. (Permits from other agencies may be required as specified in the Permit’s Details of Request.) This Permit does not relieve the Applicant of the obligation to comply with all applicable statutes, regulations, and procedures in effect at the time that any engineering permits or building permits are issued unless specifically waived herein.

No part of this Permit’s approval shall be construed to permit a violation of any part of the Escondido Municipal or Zoning Code. During Project construction and after Project completion, the Applicant shall ensure the subject land use activities covered by this Permit is conducted in full compliance with all local and state laws.

10. Fees. The appropriate development fees and Citywide Facility fees shall be pai d in accordance with the prevailing fee schedule in effect at the time of building permit issuance, to the satisfaction of the Director of Community Development. Through plan check processing, the Applicant shall pay development fees at the established rate. Such fees may include, but not be limited to: Permit and Plan Checking Fees, Water and Sewer Service Fees, School Fees, Traffic Mitigation Fees, Flood Control Mitigation Fees, Park Mitigation Fees, Fire Mitigation/Cost Recovery Fees, and other fees li sted in the Fee Schedule, which may be amended. Arrangements to pay these fees shall be made prior to building permit issuance to the satisfaction of the Development Services Department.

11. Community Facility District or Funding Mechanism. The Applicant shall fund all on- going operational costs of providing municipal services required for the Project, the amount of such funding to be determined by the City Council at the time of Project approval. Such funding shall occur through either an agreement to fo rm or annex into a Community Facilities District ( “CFD”) or the establishment of another lawful funding mechanism reasonably acceptable to the City (“Public Services Funding Agreement”). The provisions of the Public Services Funding Agreement shall specify any terms and limitations necessary to implement the CFD or other funding mechanism to offset the impacts to public services associated with the project. The City Manager, or Attachment "1"
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City Manager’s designee, shall be authorized to approve and execute the Public Services Funding Agreement, and the Public Services Funding Agreement shall be finalized prior to the City’s issuance of any permit for the Project.

12. Public Art Partnership Program. All requirements of the Public Art Partnership Program, Ordinance No. 86 -70 shall be satisfied prior to any building permit issuance.

The ordinance requires that a public art fee be added at the time of the building permit issuance for the purpose of participating in the City Public Art Program.

13. Clerk Recording.

a. Exemption. If the environmental determination prepared for the Project is a categorical exemption, the City of Escondido hereby notifies the Applicant that the County Clerk’s Office requires a documentary handling fee of $50 in order to file a Notice of Exemption. In order to file the Notice of Exemption with the County Clerk, in conformance with California Environmental Quality Act (CEQA) Guidelines section 15062, the Applicant should remit to the City of Escondido Planning Division, within two working days of the final approval of the Project (the final approval being the date of this letter) a certified check payable to the “County Clerk” in the amount of $50. The filing of a Notice of Exemption and the posting with the County Clerk starts a 35 -day statute of lim itations period on legal challenges to the agency’s decision that the Project is exempt from CEQA. Failure to submit the required fee within the specified time noted above will result in the Notice of Exemption not being filed with the County Clerk, and a 180-day statute of limitations period will apply.

b. For more information on filing fees, please refer to the County Clerk’s Office and/or the California Code of Regulations, Title 14, Section 753.5.

15. Application Accuracy. The information contained in the application and all attached materials are assumed to be correct, true, and complete. The City of Escondido is relying on the accuracy of this information and Project-related representations in order to process this application. Any permits issued by the City may be res cinded if it is determined that the information and materials submitted are not true and correct. The Applicant may be liable for any costs associated with rescission of such permits.

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of Escondido shall have the right to deny or withhold subsequent permit approvals or permit inspections that are derived from the application entitlements herein granted; issue stop work orders; pursue abatement orders, penalties, or other administrative remedies as set forth in state and local laws; or institute and prosecute litigation to compel compliance with such terms, covenants, or conditions or seek damages for their violation.

The Applicant shall be notified in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City.

17. Indemnification, Hold Harmless, Duty to Defend.

a. The Applicant shall indemnify, hold harmless, and defend (with counsel reasonably acceptable to the City) the City, its Councilmembers, Planning Commissioners, boards, commissi ons, departments, officials, officers, agents, employees, and volunteers (collectively, “Indemnified Parties”) from and against any and all claims, demands, actions, causes of action, proceedings (including but not limited to legal and administrative proce edings of any kind), suits, fines, penalties, judgments, orders, levies, costs, expenses, liabilities, losses, damages, or injuries, at law or in equity, including without limitation the payment of all consequential damages and attorney’s fees and other re lated litigation costs and expenses (collectively, “Claims”), of every nature caused by, arising out of, or in connection with (i) any business, work, conduct, act, omission, or negligence of the Applicant or the owner of the Property (including the Applicant’s or the owner of the Property’s contractors, subcontractors, licensees, sublessees, invitees, agents, consultants, employees, or volunteers), or such activity of any other person that is permitted by the Applicant or owner of the Property, occurring in, on, about, or adjacent to the Property; (ii) any use of the Property, or any accident, injury, death, or damage to any person or property occurring in, on, or about the Property; or (iii) any default in the performance of any obligation of the Applicant or the owner of the Property to be performed pursuant to any condition of approval for the Project or agreement related to the Project, or any such claim, action, or proceeding brought thereon. Provided, however, that the Applicant shall have no obligation to indemnify, hold harmless, or defend the City as to any Claims that arise from the sole negligence or willful misconduct of the City. In the event any such Claims are brought against the City, the Applicant, upon receiving notice from the City, shall defend the same at its sole expense by counsel reasonably acceptable to the City and shall indemnify the City for any and all administrative and litigation costs incurred by the City itself, the costs for staff time expended, and reasonable attorney’s fee s (including the full reimbursement of any such fees incurred by the City’s outside counsel, who may be selected by the City at its sole and absolute discretion and who may defend the City against any Claims in the manner the City deems to be in the best interests of the City).

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b. The Applicant further and separately agrees to and shall indemnify, hold harmless, and defend the City (including all Indemnified Parties) from and against any and all Claims brought by any third party to challenge the Project or its approval by the City, including but not limited to any Claims related to the Project’s environmental determinations or environmental review documents, or any other action taken by the City regarding environmental clearance for the Project or any of the Project approvals.

Such indemnification shall include the Applicant’s payment for any and all administrative and litigation costs and expenses incurred by the City in defending against any such Claims, including payment for all administrative and litigat ion costs incurred by the City itself, the costs for staff time expended, and reasonable attorney's fees (including the full reimbursement of any such fees incurred by the City’s outside counsel, who may be selected by the City at its sole and absolute discretion and who may defend the City against any Claims in the manner the City deems to be in the best interests of the City and the Project).

c. The City, in its sole discretion and upon providing notice to the Applicant, may require the Applicant to deposit with the City an amount estimated to cover costs, expenses, and fees (including attorney’s fees) required to be paid by the Applicant in relation to any Claims referenced herein, which shall be placed into a deposit account from which the City may draw as such costs, expenses, and fees are incurred. Within 14 days after receiving written notice from the City, the Applicant shall replenish the deposit account in the amount the City determines is necessary in the context of the further defense of such Claims. To the extent such deposit is required by the City, the amount of such deposit and related terms and obligations shall be expressed in a written Deposit Account Agreement, subject to the City Attorney’s approval as to form. The City, in its sole and r easonable discretion, shall determine the amount of any initial deposits or subsequent deposits of funds, and the Applicant may provide documentation or information for the City to consider in making its determinations.

Nothing within this subsection shal l be construed as to relieve the Applicant’s obligations to indemnify, hold harmless, or defend the City as otherwise stated herein.

B. Construction, Maintenance, and Operation Obligations:

1. Code Requirements. All construction shall comply with the applicable requirements of the Escondido Municipal Code, Escondido Zoning Code, California Building Code; and the requirements of the Planning Division, Engineering Services D ivision, Director of Development Services, Building Official, City Engineer, and the Fire Chief in carrying out the administration of said codes. Approval of this Permit request shall not waive compliance with any City regulations in effect at the time of Building Permit issuance unless specifically waived herein.

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As a condition of r eceiving the land use approvals specified herein, Applicant shall maintain the property subject to the approvals in compliance with all applicable city codes governing the condition or appearance of property. In addition to compliance with such basic standards, the property subject to these approvals shall also be maintained free of trash, plant debris, weeds, and concrete (other than existing foundations and permanent structures). Any signs placed on the property advertising such property for sale or rent shall be in accordance with applicable laws, and be kept clean, in like-new condition, and free from fading and graffiti at all times. This condition shall be applicable from the date the land use is approved. The failure to comply with this condit ion shall subject the approvals specified herein to revocation for failure to comply.

2. Agency License and Permitting. In order to make certain on- or off-site improvements associated with the Approved Plan set, the Permit request may require review and clearance from other agencies. Nothing in these Conditions of Approval shall be construed as to waive compliance with other government agency regulations or to obtain permits from other agencies to make certain on - or off-site improvements prior to Final Map recordation, grading permit issuance, building permit issuance, or certificate of occupancy as required. This review may result in conditions determined by the reviewing agency.

At all times during the effective period of this Permit, the Applicant and any affiliated responsible party shall obtain and maintain in valid force and effect, each and every license and permit required by a governmental agency for the construction, maintenance, and operation of the authorized activity.

3. Utilities. All new uti lities and utility runs shall be underground, or fee payment in -lieu subject to the satisfaction of the City Engineer.

4. Signage. All proposed signage associated with the Project must comply with Article 66 (Sign Ordinance) of the Escondido Zoning Code and the South Centre City Specific Plan.

Separate sign permits will be required for Project signage. All non-conforming signs shall be removed. The Applicant shall submit with any sign permit graphic/list of all signs to be removed and retained, along with any new signage proposed.

5. Noise. All Project generated noise shall conform to the City’s Noise Ordinance (Ordinance 90-08).

6. Lighting. All exterior lighting shall conform to the requirements of Article 35 (Outdoor Lighting Ordinance) of the Escondido Zoning Code.

7. General Property Maintenance. The property owner or Management Company shall maintain the property in good visual and functional condition. This shall include, but not Attachment "1"
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be limited to, all exterior elements of the buildings such as paint, roof, paving, signs, lighting and landscaping. The Applicant shall paint and re -paint all building exteriors, accessory equipment, and utility boxes servicing the Project, as necessary to maintain clean, safe, and efficient appearances.

9. Anti-Litter. The site and surrounding area shall be maintained free of litte r, refuse, and debris. Cleaning shall include keeping all publicly used areas free of litter, trash, and garbage.

10. Roof, Wall, and Ground Level Equipment. All mechanical equipment shall be screened and concealed from view in accordance with Section 33 -1085 of the Escondido Zoning Code.

11. Trash Enclosures. All appropriate trash enclosures or other approved trash systems shall be approved by the Planning and Engineering Division. The property owner or management company shall be responsible for ensuring th at enclosures are easily assessable for garbage and recyclables collection; and that the area is managed in a clean, safe, and efficient manner. Trash enclosure covers shall be closed when not in use. Trash enclosures shall be regularly emptied. There shall be the prompt removal of visible signs of overflow of garbage, smells emanating from enclosure, graffiti, pests, and vermin.

12. Staging Construction Areas. All staging areas shall be conducted on the subject property, subject to approval of the Enginee ring Department. Off -site staging areas, if any, shall be approved through the issuance of an off-site staging area permit/agreement.

4.408.3, or 4.408.4 of the California Green Buildin g Standards Code; and/or for non - residential projects or portions thereof in accordance with either Section 5.408.1.1,

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in Section 4.408.5 of the California Green Building Standards Code for residential projects or portions thereof, or Section 5.408. 1.4 for non -residential projects or portions thereof, demonstrating compliance with the California Green Building Standards Code sections cited above.

15. Construction Equipment Emissions. Applicant shall incorporate measures that reduce construction and operational emissions. Prior to the City’s issuance of the demolition and grading permits for the Project, the Applicant shall demonstrate to the satisfaction of the Planning Division that its construction contractor will use a construction fleet wherein all 50-horsepower or greater diesel -powered equipment is powered with California Air Resources Board (“CARB”) certified Tier 4 Interim engines or equipment outfitted with CARB-verified diesel particulate filters. An exemption from this requirement may be granted if (i) the Applicant provides documentation demonstrating that equipment with Tier 4 Interim engines are not reasonably available, and (ii) functionally equivalent diesel PM emission totals can be achieved for the Project from other combinations of co nstruction equipment. Before an exemption may be granted, the Applicant’s construction contractor shall demonstrate to the satisfaction of the Director of Community Development that (i) at least two construction fleet owners/operators in San Diego County w ere contacted and those owners/operators confirmed Tier 4 Interim equipment could not be located within San Diego County during the desired construction schedule, and (ii) the proposed replacement equipment has been evaluated using the California Emissions Estimator Model (“CalEEMod”) or other industry standard emission estimation method, and documentation provided to the Planning Division confirms that necessary Project- generated functional equivalencies in the diesel PM emissions level are achieved.

16. Phasing. A phasing plan shall be submitted for all projects which include more than one building. The phasing plan shall identify the order in which all on - and off -site improvements will be installed, including triggers for improvements resulting from mitigation measures placed on the project through the environmental review process or required for General Plan conformance. The plan shall also identify the order in which structures will be built and occupied, the location of construction fencing at each phase of construction, and any other means necessary to prevent conflicts between construction traffic and users of the occupied buildings. The phasing plan shall be approved by the City Planner, Building Official, City Engineer and Fire Marshal prior to the issuance of a grading permit for the project. The phasing plan shall not be modified without written consent from the City of Escondido.

C. Parking and Loading/Unloading.

1. A shown on the site plan, a minimum of 58 surface parking spaces (which includes up to 20 tandem spaces) shall be provided at all times. Covered spaces are not required for this project as allowed per Density Bonus concessions/incentives . Said parking spaces Attachment "1"
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provided by the applicant, and any additional parking spaces provided above the required, minimum amount, shall be dimensioned per City standards and be maintained in a clean, well-marked condition. The stripping shall be drawn on the plans or a note shall be included indicating double-stripping per City standards. Each set of tandem spaces shall be specifically designated to a single unit.

2. Prior to issuance of building permits, a parking management plan shall be submitted to the Planning Division for review and approval. Said plan shall address space assignment(s), gate hours (if left open) , general maintenance, signage and striping, delivery and other short -term parking allowances/requirements, guest parking , and any other issues which affect the use and maintenance of the parking areas/spaces.

3. Parking for disabled persons shall be provided (including “Van Accessible” spaces) in full compliance with the State Building Code.

4. In accordance with the California Green Building Standard Code, at least eight (8%) percent of the total number of required spaces shall be designat ed for clean air vehicles (CAV), and shall be shown on the revised site plan to the satisfaction of the Planning and Building divisions.

5. For multi-family residential and commercial (i.e. office and retail commercial) projects, at least 10 percent of th e total parking spaces provided shall be for electric vehicles, and shall be shown on the revised site plan to the satisfaction of the Planning and Building Divisions.

6. No contractor or employee may store, or permit to be stored, a commercial or construction vehicle/truck; or personal vehicle, truck, or other personal property on public-right-of-way or other public property without permission of the City Engineer.

7. The gated access to the Project shall be electric. All residents shall be provided with remote access for entrance to the site. An electric/magnetic loop or other appropriate device shall be installed on the interior of the site so that the gate automatically opens for exiting vehicles. The final design of the gate shall be approved by the Fi re Department and include appropriate knox and opticon devices as may be required.

1. Landscaped areas shall be maintained in a flourishing manner. Appropriate irrigation shall be provided for all landscape areas and be maintained in a fully operational condition.

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4. The landscaped areas shall be free of all foreign matter, weeds and plant material not approved as part of the landscape plan.

5. Failure to maintain landscaping and the site in general may result in the setting of a public hearing to revoke or modify the Permit approval.

6. Landscaping Plans. Applicant shall install all required improvements including screening walls, retaining walls, storm improvements, and landscaping in substantial c onformance to the planting and irrigation schedule as shown on the final Approved Plan set.

a. A final landscape and irrigation plan shall be submitted to the Engineering Services Division for review and approval, if meeting any of the criteria listed under Section 33- 1323 of the Zoning Code and the Downtown Specific Plan . Five copies of detailed landscape and irrigation plans shall be submitted to the Engineering Services Department with the second submittal of the grading plan. The initial submittal of the landscape plans shall include the required plan check fees, paid in accordance with the prevailing fee schedule in effect at the time of submittal. Details of Project fencing and walls, including materials and colors, shall be provided on the landscape plans. (Building permits may also be required.) The landscape and irrigation plans shall be reviewed and approved by the Planning Division and Engineering Services D ivision prior to issuance of grading permits, and shall be equivalent or superior to the conceptual landscape plans included as part of the Approved Plan set, to the satisfaction of the Planning Division. The required landscape and irrigation plans(s) shall comply with the provisions, requirements and standards outlined in Article 62 (Landscape Standards) of the Escondido Zoning Code, except where stricter requirements are imposed by the State of California.

b. Screening walls, retaining walls, storm improvements, and landscaping (i.e. planting and irrigation) is to be provided prior to final occupancy.

c. The installation of the landscaping and irrigation shall be inspected by the Project landscape architect upon completion. He/she shall complete a Certificate of Attachment "1"
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Landscape Compliance certifying that the installation is in substantial compliance with the approved landscape and irrigation plans and City standards. The Applicant shall submit the Certificate of Compliance to the Planning Division and request a final inspection.

d. Any new freestanding walls and/or retaining walls shall incorporate decorative materials or finishes (stucco-finished, decorative/split-face blocks, etc.), and shall be indicated on the landscaping plans. (Building permits may also be required.) All freestanding walls visible from points beyond the Project site shall be treated with a protective sealant coating to facilitate graffiti removal. The sealant shall be a type satisfactory to the City Planner.

e. New or retrofitted trash enclosures shall accommodate vertical climbing plants, vines with support trellis panels, clinging non-deciduous or fast-growing shrubbery that will screen the enclosures ’ wall surface. T he City Planner shall find that the proposed landscaping design, material, or method provides approximate equivalence to the specific requirements of this condition or is otherwise satisfactory and complies with the intent of these provisions.

f. Any landscaping that is da maged or destroyed as a result of the Project shall be repaired and/or replaced, to the satisfaction of the Planning Division.

g. Any trees removed as part of the Project shall be replaced elsewhere on the Project site, and shall be shown on the revised site plan.

h. Appropriate screening landscaping shall be required around any transformers and shall be shown on the site plan and to the satisfaction of the Planning Division.

i. Landscaping within the street/public right-of-way shall be installed and maintained by the adjacent property owner.

E. Specific Planning Division Conditions:

1. No utilities shall be released for any purpose or Certificate of Occupancy issued until all requirements of the Planning and Building Divisions , Fire Department and Engineering Services Division have been completed.

2. Building plans, prepared by a licensed design professional, must be submitted for the Project and must comply with the building and fire codes in effect at the time of building plan submittal.

3. The pla ns submitted for building permit shall include notes or details containing the necessary work involved in complying with these Project conditions.

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4. 5 residential units shall be deed restricted to households qualifying as very-low income rents per state policy.

5. The screening of roof-mounted, ground-mounted, or wall-mounted mechanical equipment and devices is required in accordance with Section 33 -1085 of the Escondido Zoning Code.

6. The building, architecture, colors and materials, and conceptual landscapin g shall be in substantial conformance with the Plot Plan exhibits attached as Exhibit “D” and on-file with the Planning Division, except as modified by these conditions of approval. Minor modifications may be approved by the City Planner. Major modificat ion will require a modification to the Plot Plan in accordance with Article 61. The final design of the western screen wall, pedestrian entry gate/trellis, street frontage landscape design, vehicular access gate and western building elevation and stairs shall be approved by the Planning Division prior to the submittal of grading and building plans for the Project.

7. Permitted animals/pets shall be allowed in conformance with those identified in the Escondido Zoning Code for R -4 zoned properties (pursuant to Article 57), unless more restrictive standards are applied by the property owner.

8. Balconies and patios shall be kept in a neat and orderly manner. Items stored on balconies should be kept out of view or properly screened. Items shall not be hung over, across or on balconies or patios (such a towels, clothing, etc.).

F. Housing and Neighborhood Services Conditions:

1. The Project shall provide a minimum of 5 dwelling units for very-low income households (those earning less than 50 percent of the Area Median Income for the San Diego - Carlsbad-San Marcos MSA). Prior to issuance of a building permit, the developer shall sign a binding affordable housing agreement with the City, which will set forth the conditions and guidelines to be met in the implementation of Density Bonus Law requirements and any other applicable requirements (Within the affordable housing agreement, the developer will be responsible for annual recertification of household income qualifications and compliance with rent limits). The agreement will also establish specific compliance standards and remedies available to the City upon failure by the developer to restrict units to target households for the prescribed time period (55 years for all target units as described in Government Code section 65915(c)). Income qualified households will be monitored by the City of Escondido Housing and Neighborhood Services Division for the duration of the affordability period. Monitoring fees will be applied per the affordable housing agreement.

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G. General Building Division Conditions: Building plans must be submitted for the Project.

These comments are preliminary only. A comprehensive plan check will be completed prior to permit issuance and additional technical code requirements may be identified and changes to the originally submitted plans may be required.

1. The applicant shall submit a complete set of construction plans to the Development Services Department for building permit plan check processing. The submittal shall include a Soils/Geotechnical Report, structural calculations, and State Energy compliance documentation (Title 24). Construction plans shall include a site plan, a foundation plan, floor and roof framing plans, floor plan(s), section details, exterior elevations, and materials specifications. Submitted plans must show compliance with the latest adopted editions of the California Building Code (The International Building Code with California Amendments, the California Mechanical, Electrical and Plumbing Codes). Commercial and Multi-residential construction must also contain details and notes to show compliance with State disabled accessibility mandates. These comments are preliminary only. A comprehensive plan check will be completed prior to permit issuance, additional technical code requirements may be identified, and changes to the originally submitted plans may be required.

H. General Fire Division Conditions:

1. Fire underground line, fire sprinkler, and fire alarm plans shall be a deferred submittal to the Escondido Fire Department. An approved paved access and adequate water supply shall be provided prior to any combustible being brought to the site. FDC and hydrant placement shall be approved by the Escondido Fire Department.

I. General Engineering Division Conditions:

1. The applicant shall provide the City Engineer with a Title Report covering subject property.

2. The location of all existing on -site and adjacent utilities and storm drain facilities shall be determined by the Developer’s engineer. If a conflict occurs with the proposed Project or improvements, arrangements for relocation of the conflicting utilities/facilities shall be made with the owner of the utility/facility prior to approval of the Grading Plans. This utility/facility relocation work shall be completed prior to issuance of Building Permits.

3. Improvement plans prepared by a Civil Engineer, requir ed for all public street, utility, and storm drain improvements, and Grading/Private Improvement plans prepared by Civil Engineer, required for all grading, drainage and private onsite improvement design, shall be submitted for review through the City’s vi rtual plan review portal as a single package containing all items on the Engineering Initial Submittal Checklists. Landscaping Plans shall be prepared by a Landscape Architect.

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amount shall be 10 percent of the total cost of the Project private improvements, drainage and landscaping. The Developer is required to provide Perform ance (100 percent of total public improvement cost estimate), Labor and Material (50 percent of total public improvement cost estimate) and Guarantee and Warrantee (10 percent of total public improvement cost estimate) bonds for all public improvements pri or to approval of the Improvement Plans and issuance of Building Permits. All improvements shall be completed prior to issuance of a Certificate of Occupancy.

6. If site conditions change adjacent to the proposed development prio r to completion of the Project, the developer will be responsible to modify the improvements to accommodate these changes. The determination and extent of the modification shall be to the satisfaction of the City Engineer.

7. All public improvements shall be constructed in a manner that does not damage existing public improvements. Any damage shall be determined by and corrected to the satisfaction of the City Engineer.

Street Improvements and Traffic

1. The project’s access drive shall be constructed as an alley-type driveway apron with a minimum throat width of 24 -feet and a driveway apron with a 4 -feet minimum ADA path of travel maintained near the R/W line to the satisfaction of the City Engineer.

2. All on-site driveways, and parking areas will be private. Typical sections and design details shall be to the satisfaction of the City Engineer and Community Development Director.

3. All unused driveways shall be removed and replaced with full height curb and gutter and sidewalk in accordance with City standards.

4. The Developer shall be responsible for an overlay of South Escondido Blvd. due to the many utility trenches necessary to serve this project. The determination of the extent of the overlay shall be to the satisfaction of the City Engineer.

5. The Developer sh all remove and replace all damaged sidewalk, curb and gutter, along all project frontages to the satisfaction of the City Engineer prior to issuance of a Certificate of Occupancy.

6. The Developer’s engineer shall prepare and submit for approval by the City E ngineer a complete final Signing and Striping plan for all improved and modified roadways. The Developer will be responsible for removal of all existing and the construction of all new signing and striping in compliance with the current CA MUTCD standards and to the satisfaction of the City Engineer.

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7. The Developer shall repaint all pavement striping and markings adjacent to the project that have been damaged and prematurely faded due to project construction traffic to the satisfaction of the City Engineer.

8. Adequate horizontal sight distance shall be provided at all driveways. Increased parkway widths, open space easements, and restrictions on landscaping may be required at the discretion of the City Engineer.

9. Pedestrian access routes meeting current ADA req uirements shall be provided into the project to the satisfaction of the City Engineer and City Building Official.

10. All gated entrances shall be approved by the City Engineer, Building Official, and the Fire Marshal.

11. The Developer will be required to provide a detailed detour and traffic control plan, for all construction and staging activities, and any requested materials placement within existing rights-of-way to the satisfaction of the City Engineer. This plan shall include any proposed sidewalk closures and provide for alternate pedestrian access around the project site. This plan shall be approved prior to the issuance of an Encroachment Permit for construction or other project activities within the public right-of-way.

12. The Developer shall install trash capture devices on existing storm drain inlets along the project’s frontage to the satisfaction of the City Engineer.

13. The installation of all utilities and facilities (green street tree wells, fire hydrant, transformers, etc.) shall be constructed at the ultimate location and to the satisfaction of the City Engineer.

Grading and Site Improvements

1. A site grading and erosion control plan prepared by a registered Civil Engineer shall be approved by the Engineering Department prior to issuance of building permits. The first submittal of the grading plan shall be accompanied with a copy of the preliminary soils and geotechnical report. The Soils Engineer will be required to indicate in the soils report that he/she has reviewed the grading design and found it to be in conformance with his/her recommendations.

2. All private driveways and parking areas shall be paved with a minimum of 3 -inch asphalt concrete (AC) over 6-inch of asphalt Base (AB) or 7 -inch Portland Concrete Cement (PCC) over 6-inch AB. All paved areas exceeding 15 percent slope or less than 1.0 percent shall be paved with PCC.

3. Any proposed retaining walls not a part of the building foundations or stem walls shall be shown on and permitted as part of the site grading plan. Profiles and structural details shall be shown on the site grading plan and the Soils Engineer shall state on the plans that the proposed retaining wall design is in conformance with the recommendations and specifications as outlined in the Geotechnical report. Structural calcu lations shall be submitted for review by a Consulting Engineer for all walls not covered by Regional or City Standard Drawings. Stem walls, foundation structures, or deepened footings that are to be Attachment "1"
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constructed as part of a building structure will be permitted as part of the Building Dept. plan review and permit process.

4. The Developer will be required to obtain permission from adjoining property owners for any off-site grading or work necessary to construct the project and/or the required improvements.

5. Erosion control, including riprap, interim slope planting, sandbags, or other erosion control measures shall be provided to control sediment and silt from the project. The Developer shall be responsible for maintaining all erosion control facilities throughout the project.

6. The Developer shall be responsible for the recycling of all excavated materials designated as Industrial Recyclables (soil, asphalt, sand, concrete, land clearing brush and rock) at a recycling center or other location(s) approved by the City Engineer.

7. A Construction General Permit is required from the State Water Resources Control Board for all storm water discharges associated with a construction activity where clearing, grading, and excavation results in a land disturbance of one or more acres.

8. All existing foundations, structures, trees not otherwise noted to remain or be relocated shall be removed or demolished from the site.

9. All driveway grades shall conform to current Escondido Design Standards and Escondido Standard Drawings.

Drainage

1. Final on-site and off-site storm drain improvements shall be determined to the satisfaction of the City Engineer and shall be based on a drainage study to be prepared by the Engineer of Work. The drainage study shall be in conformance with the City of Es condido Design Standards.

2. All on -site storm drains not in public easements are private. The responsibility for maintenance of these storm drains shall be that of the property owner.

3. The Project shall limit drainage flows to their pre-construction rates. Details and calculations for the detention basin or on -site storage shall be submitted and approved as part of the grading plan check.

4. A Storm Water Quality Management Plan (SWQMP) in compliance with the City’s latest adopted Storm Water Design Manual shal l be prepared for all newly created or replaced onsite impervious areas, impervious frontage, and required offsite improvements. The SWQMP shall be submitted for approval with the final improvement and grading plans. The SWQMP shall include treatment cal culations, post -construction storm water treatment measures, and maintenance requirements and responsibilities both for onsite treatment and also any “Green Street” facilities located in the public right -of-way. The SWQMP shall demonstrate how proposed pr oprietary best management practices meet bio -filtration treatment requirements in accordance with the City’s Storm Water Design Manual.

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5. All site drainage with emphasis on the roadway, parking, and driveway areas shall be treated to remove expected contamin ants using a high efficiency non -mechanical method of treatment. The City highly encourages the use of bio-retention areas as the primary method of storm water retention and treatment. The landscape plans will need to reflect these areas of storm water treatment.

6. The Developer will be required to have the current owner of the property sign, notarize, and record a Storm Water Control Facility Maintenance Agreement.

7. All storm water treatment and retention facilities and their drains including the bio -retention basins and planters, any permeable paver areas shall be considered private. The responsibility for maintenance of these post construction storm water treatment facilities shall be that of the property owner.

8. The Developer’s engineer shall design and the Developer shall construct any permeable surfaces proposed for the Project to the specifications of the County of San Dieg o Green Streets manual in effect at the time the grading permits are issued. All permeable surfaces within the Project footprint that are subject to vehicular traffic shall be designed for H20 loading.

9. The project owner shall perpetually maintain all permeable surfaces in accordance to the standards established by the County of San Diego Green Streets manual in effect at the time the grading permits are issued. City shall have the right to inspect all permeable surfaces as needed to ensure they function as designed. City shall have the right to require qualified third-party testing at the property owner’s expense when surface failure is suspected.

Contractor qualifications are outlined in the County of SD Green Streets manual. The project owner will be required to repair or reinstall the permeable surface for all failing surfaces to County of SD Green Streets manual standards in place at the time of the grading permit. In the event of failure to maintain the permeable pavers system that result in not functioning as designed, the project owner will be responsible to replace the pervious pavers system with an alternate method of storm water treatment system or will be required to transition the project to a priority storm water development project by complying with the applicable requirements, including development of a Storm Water Quality Management Plan and the installation of structural best management practices.

Water Supply

1. All water main locations and sizing shall be to the satisfaction of the City Engineer and Utilities Engineer. The developer is required at their sole expense to design and construct an 8-inch waterline extension in the driveway. The water main extension shall connect to the existing 12-inch AC water main located in S. Escondido Blvd. Construction of the water main and related appurtenances shall be in accordance with the Standards and Specifications of the City of Escondido. A minimum 20 -foot public utility easement shall be pr ovided for all proposed water mains. There shall be no permanent structures located within the public utility easement.

2. All water services, detector check assemblies, and other water appurtenances shall be designed and installed at locations required and approved by the Director of Utilities. All new Attachment "1"
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water main locations and sizing shall be to the satisfaction of the City Engineer and, in accordance with the current City of Escondido Design Standards and Standard Drawings and to the satisfaction of the Utilities Engineer.

3. Fire hydrants and/or fire protection together with an adequate water supply shall be installed at locations approved by the Fire Marshal. On-site fire hydrants located by the Fire Marshal may require water main looping.

4. A fire suppression sprinkler system shall be designed and constructed per current City of Escondido Design Standards and Standard Drawings and per the requirements of the Fire Marshal.

5. Water meters and back flow prevention devices shall not be installed within a driveway apron or private drive areas.

6. A minimum 1-inch water meter, 1-inch water service and backflow prevention device shall be required for domestic water supply per City of Escondido Design Standards and Standard Drawings. All on-site water lines and backflow prevention devices not in public easements or the City’s Right of Way shall be considered a private water system. The Property Owner will be solely responsible for all maintenance of these water lines and facilities.

7. The Developer shall disconnect at the public main, all water services and fire hydrant laterals to be abandoned, to the satisfaction of the Utilities Engineer and Water Distribution Department.

8. Any water meter and fire hydrant services to be replaced, reconnected or relocated as a part of this project shall be replaced in entirety from the public water main to the public water meter and/or fire hydrant per the satisfaction of the Utilities Engineer and Water Distribution.

9. There shall be no permanent structures located within the City’s Public Utilities Easements.

10. No trees or deep-rooted plants shall be planted within 10-feet of any water service.

Sewer

1. A private 6-inch minimum (PVC) sewer lateral with a standard clean-out within 18-inches of the Public Utilities Easement or right -of-way shall be constructed for the project and shown on the Improvement and Grading plans. Sewer laterals less than 8-inches in diameter shall connect to the sewer main with a wye fitting or Inserta -Tee. 8 -inches in diameter sewer laterals shall be connected to the public sewer at a manhole.

2. All sewer laterals shall be constructed per current City of Escondido Design Standards and Standard Drawings and per the current Uniform Plumbing Code.

3. No trees or deep-rooted bushes shall be planted within 15 -feet of any sewer main or within 10-feet of any sewer lateral. Sewer laterals shall be 5 -feet horizontally clear from other utilities.

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4. All abandoned sewer laterals shall be removed or capped at the property line and so noted on the improvement plans to the satisfaction of the Utilities Engineer.

5. All sewer lateral(s) and grease traps shall be considered a private sewer system. The Property Owner will be responsible for all maintenance of the sewer lateral(s) and system to the sewer main.

Landscape

1. A site landscaping and irrigation plan shall be submitted to the Engineering Department with the second submittal of the grading plan for review and approval by Engineering Services Division and Planning Division. The initial submittal of the landscape plans shall include the required plan check fees.

Easement and Dedications

1. All easements, both private and public, affecting subject property shall be shown and delineated on the Grading and Improvement Plans.

2. Public waterline easements for water which are deemed necessary by the City Engineer shall be granted to the City. The initial submittal of the plat and legal shall include the required Public Waterline Easement fee in effect at the time of the submittal.

3. The Developer is responsible for making the arrangements quitclaim all easements of record which conflict with the proposed development prior to approval of the Grading plans and Building Permits. If an easement of record contains an existing utility that must remain in service, proof of arrangements to quitclaim the easement once new utilities are constructed must be submitted to the City Engineer prior to approval of the Grading plans and Building Permits. Building permits will not be issued for lots in which construction will conflict with existing easements or utilities, nor will any securities be released until the existing easements are quitclaimed.

Material necessary for processing a dedication or easement shall include: a current grant deed or title report, a legal description and plat of the dedication or easement signed and sealed by a person authorized to practice land surveying (document size) and traverse closure tapes. The City will prepare all final public documents. The initial submittal of the plat and legal shall include the required Dedication fee in effect at the time of the submittal.

Citywide Community Facilities District (CFD)

1. In accordance with the General Plan, the applicant shall offset the cost of public services through an approved funding mechanism. The applicant has indicated their intent to meet this requirement through annexation to the Citywide Community Facilities District (CFD). The applicant shall submit a complete Annexation Application, Unanimous Approval signed by the property owner, a title report issued wi thin the last 30 -days, and processing fees to the Engineering Department prior to the first submittal of the Building Permit. The Annexation Attachment "1"
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Application and the Unanimous Approval forms are available on the following webpage:
https://www.escondido.org/community-facilities-districts Fees

1. A cash security shall be posted to pay any costs incurred by the City to clean-up eroded soils and debris, repair damage to public or private property and improvements, install new BMPs, and stabilize and/or close-up a non-responsive or abandoned project. Any moneys used by the City for cleanup or damage will be drawn from this security and the grading permit will be revoked by written notice to the dev eloper until the required cash security is replaced. The cleanup cash security shall be released upon final acceptance of the grading and improvements for this project. The amount of the cash security shall be 10% of the total estimated cost of the grading, drainage, landscaping, and best management practices items of work with a minimum of $5,000 up to a maximum of $50,000, unless a higher amount is deemed necessary by the City Engineer.

2. The developer shall be required to pay all development fees of the City then in effect at the time, and in such amounts as may prevail when building permits are issued.

Utility and Undergrounding and Relocation

1. The Developer shall sign a written agreement stating that he has made all such arrangements as may be necessary to coordinate and provide utility construction, relocation and undergrounding. All new utilities shall be constructed underground.

Surveying and Monumentation

1. All property corners shall be monumented by a person authorized to practice land surveying and a Record of Survey (or Corner Record if appropriate) shall be recorded.

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EXHIBIT C
Project Plans
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EXHIBIT D
Legal Description

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EXHIBIT E

CITY OF ESCONDIDO

PLANNING DIVISION
201 NORTH BROADWAY
ESCONDIDO, CA 92025-2798
(760) 839-4671

Notice of Exemption

To: San Diego Assessor/Recorder/County Clerk
Attn: Fish and Wildlife Notices
1600 Pacific Highway, Room 260
San Diego, CA 92101
MS A-33
From: City of Escondido
201 North Broadway
Escondido, CA 92025

Project Title/Case No.: Major Plot Plan and Density Bonus (City Project No. PL22-0032)

Project Location - Specific: 1600 S. Escondido Boulevard (APN 236-460-16-00)

Project Location - City: Escondido Project Location - County: San Diego

Description of Project: A Major Plot Plan and Density Bonus to construct 48 apartment units on a 1.02-acre parcel of land within the South Centre City Specific Plan (Escondido Boulevar d District) . The site contains an existing commercial building that will be removed. The project includes the development of two, three-story buildings that contain 24 units per building. 58 open parking spaces will be provided.

Name of Public Agency Approving Project: City of Escondido

Name of Person or Agency Carrying Out Project:

Name: Scott Maas / FieldXStudio Telephone: (858) 337-6909 Address: 2033 San Elijo Ave., #643 Cardiff by the Sea, CA 92007

Private entity School district Local public agency State agency Other special district

Exempt Status: Categorical Exemption. CEQA Sections 15332 “In-fill Development Projects.” Reasons why project is exempt:

1. The project is consistent with the applicable general plan designation ( South Center City Specific Plan – Escondido Boulevard District ); all applicable general plan polices, and the applicable zoning des ignation and regulations.

2. The proposed project occurs within City limits on no more than five acres and is surrounded by urban uses on all sides.

3. The project has no value as habitat for endangered, rare, or threatened species.

4. Approval of the project would not result in any significant e ffects relating to traffic, noise, air quality, or water quality.

5. The site can be adequately served by all required utilities and public services.

Lead Agency Contact Person: Jay Paul, Planning Division Area Code/Telephone/Extension (760) 839-4537 Signature: JPaul July 28, 2022 Jay Paul, Senior Planner Date

Signed by Lead Agency Date received for filing at OPR: N/A Signed by Applicant
Attachment "1"
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Attachment "2"
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Attachment "2"
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Attachment "2"
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Attachment "2"
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Attachment "2"
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Agenda Item No.: G.2
Date: September 13, 2022
PROJECT NUMBER / NAME: PL22-0032 / 1600 S. Escondido Blvd. Apartments REQUEST: An appeal of a Condition of Approval applied to a Major Plot Plan requiring funding of ongoing municipal services required by the project
LOCATION: 1600 S. Escondido Blvd.

APN / APNS: 236-460-16-00
GENERAL PLAN / ZONING: Specific Plan Area
(SPA 15) / Specific Plan (S-P; South Centre City
Specific Plan)
APPLICANT: Spinezone Equity Partners,
LLC., Kamshad Raiszadeh
PRIMARY REPRESENTATIVE:

Scott, Maas, FieldXStudio
DISCRETIONARY ACTIONS REQUESTED: Appeal of a Plot Plan approval.

PREVIOUS ACTIONS: The Plot Plan was administratively approved by the Director of Development Services on July 28, 2022.

PROJECT PLANNER: Jay Paul, Senior Planner
CEQA RECOMMENDATION: The development was determined to be categorically exempt pursuant to California Environmental Quality Act (CEQA) Guidelines section 15332 (In -fill Development Projects).

STAFF RECOMMENDATION: Recommend the City Council deny the appeal and uphold the Director’s decision.

REQUESTED ACTION: Adopt Resolution No. 2022-08.

CITY COUNCIL HEARING REQUIRED: ☒ YES ☐ NO
REPORT APPROVALS: ☐ Andrew Firestine, Director of Development Services ☐ Adam Finestone, City Planner
PC 09/13/202

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Attachment "3"
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Project Case No.: PL22-0032
Planning Commission Meeting
Date: September 13, 2022

2 A. BACKGROUND:

An administrative approval for a Plot Plan , inclusive of a density bonus, was issued on July 28, 2022, for a 48-unit apartment complex located at 1600 S. Escondido Blvd. The project includes five units that will be deed-restricted for very-low income households. The applicant appealed the inclusion of a condition of approval applied to the project which requires the developer to fund ongoing operational costs of providing municipal services required for the project. The appeal is based on the premise that density bonus projects are entitled to certain incentives and waivers, in addition to an increase in allowable density, in order to make a project financially feasible.

All other aspects of the project have been approved and not subject to the appeal.

B. ANALYSIS:

Density bonus law (Government Code section 65915 et. seq.) and Article 67 of the Escondido Zoning Code (Density Bonus and Residential Incentives) are intended to encourage the development of affordable housing. This is accomplished through the allowance fo r an increase in residential density above what would typically be allowed for a property, and through the provision of incentives and waivers from development standards that make construction of the project infeasible.

Allowable increases in density are based on a sliding scale that involves both the percentage of affordable units being provided, and the level of affordability of those units. Current zoning for the subject property would allow a total of 3 1 units; however, by deed restricting 15% of those units (amounting to five units) for very-low income households, the project is eligible for a 50% increase in allowable density, resulting in a total allowance of 48 units.

The percentage of affordable units and level of affordability also entitles the applicant to three incentives and waivers. The incentives for this project include a reduction in open space, parking design requirements, and design standards . The applicant has also requested an incentive to facilitate the construction of the project by eliminating the requirement to fund ongoing operational costs of providing municipal services required for the project. This requirement is identified as Condition of Approval A.11 in the Letter of Conditional Approval dated July 26 , 2022, and included as Attachment 1 to this staff report. Specifically, the condition states:

Community Facility District or Funding Mechanism. The Applicant shall fund all on - going operational costs of providing municipal services required f or the Project, the amount of such funding to be determined by the City Council at the time of Project approval. Such funding shall occur through either an agreement to form or annex into a Community Facilities District (“CFD”) or the establishment of ano ther lawful funding mechanism reasonably acceptable to the City (“Public Services Funding Agreement”). The provisions of the Public Services Funding Agreement shall specify any terms and limitations necessary to implement the CFD or other funding mechanis m to offset the impacts to public services associated with the project. The City Manager, or PC 09/13/202

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Attachment "3"
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Project Case No.: PL22-0032
Planning Commission Meeting
Date: September 13, 2022

3 City Manager’s designee, shall be authorized to approve and execute the Public Services Funding Agreement, and the Public Services Funding Agreement shall be fina lized prior to the City’s issuance of any permit for the Project.

Government Code section 95915(l) states that density bonus law “…does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements. ” Similarly, section 33 -1414(a)(2)(E) of the City of Escondido Municipal Code states that “the city council may, but is not required to, provide direct financial incentives, including direct financial aid in the form of a loan or grant, the provision of publicly owned land, or the waiver of fees or dedication requirements. ” Staff has consistently interpreted this to mean that the City is not required under density bonus law to waive fees or provide other direct financial incentives for a housing development and that staff does not have the authority to do so under the City of Escondido Municipal Code or the current City Council adopted policy concerning the funding of municipal services by new development.

Costs of Municipal Services

- On April 8, 2020, the City Council indicated its intent to require new residential development to offset the ongoing costs of providing public services.

- On May 13, 2020, the City Council held a duly noticed public hearing and adopted Resolution No. 2020-44 (Resolution of Formation) establishing CFD 2020-1, the Citywide Services CFD.

- On September 16, 2020, the City Council adopted Resolution No. 2020 -115 annexing five projects with 66 units into CFD 2020-1 creating the second (2) zone of the Services CFD (Zone 2020-2).

- On September 23, 2020, the City Council restated its intent to require new residential development to offset the ongoing costs of providing public services , specifically noting that the requirement be applied to any project approved after May 13, 2020.

PC 09/13/202

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Attachment "3"
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Project Case No.: PL22-0032
Planning Commission Meeting
Date: September 13, 2022

4 - On October 21, 2020, the City Council adopted Resolution No. 2020-147 annexing a 42- unit project located at 2608 S. Escondido Blvd. into CFD 2020 -1 and creating the third (3) zone of the Services CFD (Zone 2020-03).

- On November 18, 2020, the City Council adopted Resolution No. 2020-160 annexing two (2) projects containing 21 units into CFD 2020-1 creating the fourth zone of the Services CFD (Zone 2020-04).

- On July 21, 2021, the City Council adopted Resolution No. 2021-77 approving the special tax rate for CFD 2020-1 (Public Services).

Planning Commission Review

C. CONCLUSION AND RECOMMENDATION:

The Director of Development Services applied Condition of Approval A.11 to the project approval, requiring the project to fund all on-going operational costs of providing municipal services. Because the condition is consistent with current City Council policy, and because neither the Government Code nor the City of Escondido Municipal Code require the City to provide direct financial assistance to a density bonus project, staff does not support the removal of said condition. As such, and because the Planning Commission is serving in an advisory role to City Council on this appeal, staff recommends that the Planning Commission adopt Resolution No. 2022-08, recommending City Council deny the appeal and uphold the Director’s decision to approve the project subject to all conditions of approval contained in the Conditional Letter of Approval attached to this staff report.

ATTACHMENTS:

1. Plot Plan Conditional Letter of Approval dated July 28, 2022

2. Appeal of Condition of Approval

3. Planning Commission Resolution No. 2022-08

PC 09/13/202

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Attachment "3"
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RESOLUTION NO. 2022-141

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, DENYING THE APPEAL OF THE

STANDARD CONDITION OF APPROVAL AND REQUIR ING

PAYMENT FOR ONGOING MUNICIPAL SERVICES

WHEREAS, Fieldxstudio, Inc. (“Applicaticant ”) on behalf of Spinezone Equity Partners, LLC (”Owner”) filed a land use development application, Planning Case No. PL22 -0032 (“Application”), consisting of a request for a Plot Plan for a 48-unit apartment complex including five deed-restricted very- low income units (“Project”) on a 1.02 net acre site located at 1600 S. Escondido Boulevard (Assessor’s Parcel Number 236-460-16-00), in the South Centre City Specific Plan; and WHEREAS, the subject property is all that real property described in Exhibit “A” which is attached hereto and made a part hereof by this reference as though full set forth herein (“Property”); and WHEREAS, the Application was submitted to, and processed by, the Planning Divis ion of the Development Services Department in accordance with the rules and regulations of the Escondido Zoning Code and the applicable procedures and time limits specified by the Permit Streamlining Act (Government Code section 65920 et seq.) and the California Environmental Quality Act (Public Resources Code section 21000 et seq.) (“CEQA”); and
WHEREAS, pursuant to CEQA and CEQA Guidelines (Title 14 of California Code of Regulations, section 15000 et. seq.) the City is the Lead Agency for the Project, as the public agency with the principal responsibility for approving the Project, and it was determined that the Project as a whole is categorically exempt from further review pursuant to CEQA Guidelines section 15332 (Class 32) – Infill Development Projects; and
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WHEREAS, the Planning Division studied the Application, performed necessary investigations, and the Director of Development Services approved the Plot Plan for the Project as depicted in the administrative approval and subject to all conditions of approval included in the administrative approval; and
WHEREAS, the Applicant submitted an appeal of one condition of approval associated with the payment of costs associated with providing ongoing municipal services; and WHEREAS, no other aspect of the Plot Plan approval has been appealed, and all other components of the Project have been approved and are not subject to the appeal; and WHEREAS, on September 13, 2022, the Planning Commission held a duly noticed public hearing as prescribe by law, at which time the Planning Commission received and con sidered the report and recommendation of the Planning Division and gave all persons full opportunity to be heard and to present evidence and testimony, regarding the appeal. Evidence was submitted to and considered by the Planning Commission, including, without limitation:
a. Written information and other material submitted by the Applicant; b. Oral testimony from City staff, interested parties and the public; c. The staff report, dated September 13, 2022, with its attachments as well as City staff recommendation on the appeal;
d. Additional information submitted during the public hearing; and WHEREAS, following the public hearing, the Planning Commission adopted Resolution No. 2022- 08, recommending that the City Council grant the appeal; and 167
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California, as follows:

1. That the above recitations are true.

3. That upon consideration of the Findings, the staff report dated September 28, 2022 (a copy of which is on file in the Office of the City Clerk), public testimony presented at the meeting, and all 168
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other oral and written evidence regarding the appeal, the City Council hereby denies the appeal of the standard condition of approval requiring payment for ongoing municipal services. 169
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Resolution No. 2022-141
Exhibit “A”

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EXHIBIT “A”

LEGAL DESCRIPTION
PL22-0032

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Resolution No. 2022-141
Exhibit “B”

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EXHIBIT “B”

FINDINGS OF FACT

The City Council has reviewed the record, and makes the following findings for denying the appeal of the condition of approval that requires ongoing payment for municipal services:

RESOLUTION NO. 2022-142

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, GRANTING THE APPEAL OF

THE STANDARD CONDITION OF APPROVAL AND

WAIVING THE REQUIREMENT FOR PAYMENT FOR

ONGOING MUNICIPAL SERVICES

WHEREAS, Fieldxstudio, Inc. (“Applicant”), on behalf of Spinezone Equity Partners, LLC (”Owner”) filed a land use development application, Planning Case No. PL22 -0032 (“Application”), consisting of a request for a Plot Plan for a 48 -unit apartment complex including five deed -restricted very-low income units (“Project”) on a 1.02 net acre site located at 1600 S. Escondido Boulevard (Assessor’s Parcel Number 236-460-16-00), in the South Centre City Specific Plan; and WHEREAS, the subject property is all that real property described in Exhibit “A” which is attached hereto and made a part hereof by this reference as though full set forth herein (“Property”); and WHEREAS, the Application was submitted to, and processed by, the Planning Divis ion of the Development Services Department in accordance with the rules and regulations of the Escondido Zoning Code and the applicable procedures and time limits specified by the Permit Streamlining Act (Government Code section 65920 et seq.) and the California Environmental Quality Act (Public Resources Code section 21000 et seq.) (“CEQA”); and
WHEREAS, pursuant to CEQA and CEQA Guidelines (Title 14 of California Code of Regulations, section 15000 et. seq.) the City is the Lead Agency for the Project, as the public agency with the principal responsibility for approving the Project, and it was determined that the Project as a whole is categorically exempt from further review pursuant to CEQA Guidelines section 15332 (Class 32) – Infill Development Projects; and
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WHEREAS, the Planning Division studied the Application, performed necessary investigations, and the Director of Development Services approved the Plot Plan for the Project as depicted in the administrative approval and subject to all conditions of approval included in the administrative approval; and
WHEREAS, the Applicant submitted an appeal of one condition of approval associated with the payment of costs associated with providing ongoing municipal services; and WHEREAS, no other aspect of the Plot Plan approval has been appealed, and all other components of the Project have been approved and are not subject to the appeal; and WHEREAS, on September 13, 2022, the Planning Commission held a duly noticed public hearing as prescribe by law, at which time the Plannin g Commission received and considered the report and recommendation of the Planning Division and gave all persons full opportunity to be heard and to present evidence and testimony, regarding the appeal. Evidence was submitted to and considered by the Planning Commission, including, without limitation:
a. Written information and other material submitted by the Applicant; b. Oral testimony from City staff, interested parties and the public; c. The staff report, dated September 13, 2022, with its attachments as well as City staff recommendation on the appeal;
d. Additional information submitted during the public hearing; and WHEREAS, following the public hearing, the Planning Commission adopted Resolution No. 2022- 08, recommending that the City Council grant the appeal; and 173
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WHEREAS, on September 28, 2022, the City Council held a duly noticed public hearing as prescribed by law. Evidence was submitted to and considered by the City Council, includin g without limitation:
a) written testimony from City staff, interested parties, and the public; b) oral testimony from City staff, interested parties and the public; c) the City Council staff report, dated September 28, 2022, with its attachments as well as City staff recommendation on the appeal, which is incorporated herein by this reference as though fully set forth herein;
d) the Planning Commission’s recommendation; and
d) additional information submitted during the public hearing.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California, as follows:

1. That the above recitations are true.

3. That upon consideration of the Findings, the staff report dated September 28, 2022 (a copy of which is on file in the Office of the City Clerk), public testimony presented at the meeting, and all other oral and written evidence regarding the appeal, the City Council hereby grants the appeal of the 174
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standard condition of approval and waives the requirement for payment for ongoing municipal services for the Project.
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Resolution No. 2022-142
Exhibit “A”

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EXHIBIT “A”

LEGAL DESCRIPTION
PL22-0032

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Resolution No. 2022-142
Exhibit “B”

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EXHIBIT “B”

FINDINGS OF FACT

The City Council has reviewed the record, and makes the following findings for approving the appeal of the condition of approval that requires ongoing payment for municipal services:

1. On September 23, 2020, following multiple public hearings, the City Council adopted a policy requiring all new residential development approved after May 13, 2020, to pay for their ongoing costs of providing municipal services. However, the City’s required regional housing needs assessment (RHNA ) identified a goal of an additional 9 ,607 housing units, 1864 of which need to provide housing to very -low income individuals or families. The five deed - restricted units for very-low income households included in this project will help contribute to that goal. Additional ongoing costs would negatively impact the ability to provide these deed restricted units.

2. Removal of the condition of approval would support the City Council adopted Housing Element policies promoting the development of very -low income deed-restricted housing units to meet the City’s RHNA goals, and removing the funding requirement would support the development of very-low income deed-restricted units. 177
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STAFF REPORT

September 28, 2022
File Number 0600-10; A-3433

SUBJECT

APPROVAL OF A RIGHT -OF-WAY ENCROACHMENT AGREEMENT WITH SIFI NETWORKS ESCONDIDO, LLC

DEPARTMENT
Information Systems

RECOMMENDATION
Request that the City Council adopt Resolution No. 2022-143, awarding the Right-Of-Way Encroachment Agreement to SiFi Networks, Escondido LLC (“SiFi”) to allow for the installation of a citywide fiber communications system (“Project”), and authorizing the Mayor to execute the Agreement.

Staff Recommendation: Approval (Jennifer Schoeneck, Deputy Director of Economic Development, Robert Van De Hey, Chief Information Officer, and Julie Procopio, City Engineer) Presenter: Jennifer Schoeneck, Rob Van De Hey, and Julie Procopio

FISCAL ANALYSIS
There is no direct cost to the City of Escondido (“City”) associated with the installation and operation of the system. Sifi has agreed to cover the cost of all City staff time associated with plan checks and field inspections. SiFi is not a registered state utility and therefore not afforded the typical protection that registered utility companies operating under the purview of the California Public Utilities Commission (CPUC) receive. As a result, SiFi typically executes agreements with its host cities in order to obtain access to their rights -of-way, establish the agreed upon permitting process , and memorialize any community benefits to be provided. Following a competitive analysis, SiFi was determined to be the superior fiber communications system provider meeting Escondido’s citywide infrastructure needs.

PREVIOUS ACTION
None.

BACKGROUND
SiFi Networks is a privately -owned telecom company that funds, builds, and operates open access fiber networks across the United States. SiFi’s business model and its Escondido proposal include the installation of fiber along every public street at no cost to the City. 178
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SiFi Networks is a int ernational company that has deployed open access fiber networks internationally, including a number of cities in North America. Although the company has had a US presence since 2014, it is relatively new to California. SiFi is currently working on projects within Fullerton, Downey, Placentia and Simi Valley and has announced plans to deploy in Simi Valley, Yuba City, Rancho Cordova, Lancaster, Palmdale and Folsom. SiFi owns and operates all equipment within its system and partners with various Internet Service Providers (“ISPs”) that provide the point of connection between SiFi's backbone system and each individual premises.

SiFi offers an affordable, subsidized inte rnet access program called FiberCity Aid which currently offers Gigabyte speed internet servi ce for as low as $30 per month to qualifying households. SiFi is also committed to providing fiber access to City facilities and equipment at a substantially reduced rate.

The installation of a citywide fiber system along every public street at no cost to the City would provide significant public benefits to our community. Once the network is completed, every property that fronts on a public street in Escondido would have access to Gigabyte speed internet service which would greatly enhance connectivity for our residents, businesses, and City facilities. SiFi will also make efforts to provide access to communities that are served by a private street system.

The provision of a citywide fiber network would complement the City's economic development efforts as many businesses rely on high speed internet service to remain competitive. This network would also ensure that our residents have access to reliable high-speed internet service with opportunities to provide low cost access to economically disadvantaged households. Offering Gigabyte speed fiber access to our local residents would also complement the City's and SANDAG’s ongoing efforts to address the “digital divide."
It is recommended that the right of way agreement be approved with SiFi for the installation of a citywide fiber system. SiFi anticipates completing system buildout within three to four years with the first customers connected approximately eight months from commencement of construction.

RESOLUTIONS
a. Resolution No. 2022-143
b. Resolution No. 2022-143 Exhibit “A” – Right of Way Encroachment Agreement

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RESOLUTION NO. 2022-143

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, AUTHORIZING THE MAYOR

TO EXECUTE, ON BEHALF OF THE CITY, A RIGHT -OF-

WAY ENCROACHMENT AGREEMENT WITH SIFI

NETWORKS ESCONDIDO, LLC

WHEREAS, SiFi desires to install a fiber optic network system (“System”) in the City of Escondido’s (“City”) public right-of-way (“Public Way”) and the City desires to allow such a System for community benefit; and
WHEREAS, SiFi owns the rights to the FOCUS proprietary fiber optic cable System technology; and WHEREAS, the City has agreed to grant SiFi permission to access and use the Public Way to install, operate, and maintain the System, subject to the terms and conditions of this Agreement; and WHEREAS, SiFi plans to allow the City to use the System for governmental internal data communication and non-retail purposes, subject to a separate agreement to be negotiated in good faith between the Parties, at a rate substantially less than current market rate.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California as follow:

1. That the above recitations are true.

2. That the City Council authorizes the Mayor to execute, on behalf of the City, a Right-of-Way Encroachment Agreement with SiFi Networks, Escondido LLC, in a substantially similar form to that which is attached and incorporated to this Resolution as Exhibit “A”, and subject to final approval as to form by the City Attorney.
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RIGHT-OF-WAY ENCROACHMENT AGREEMENT
This Right-of-Way Encroachment Agreement (the “Agreement”) is dated ___________, 2022 and will be effective upon the (“Effective Date” as defined below), by and between the City of Escondido (“City”) in the State of California, (“State”), a municipal corporation, and SiFi Networks Escondido LLC a Delaware limited liability company (“SiFi”) (each of City and SiFi, a “Party” and collectively, the “Parties”).

RECITALS
WHEREAS, SiFi desires to install a fiber optic network System (as defined below) in the City’s public rights-of-way and the City desires to allow such a System for community benefit; and WHEREAS, SiFi owns the rights to the FOCUS (as defined below) proprietary fiber optic cable System technology; and
WHEREAS, the City has agreed to grant to SiFi permission to access and use the Public Way to install, operate, and maintain the System, subject to the terms and conditions of this Agreement; and
WHEREAS, SiFi plans to allow the City to use the System for governmental internal data communication and non-retail purposes, subject to a separate agreement to be negotiated in good faith between the Parties, at a rate substantially less than current market rate.

NOW, THEREFORE, in consideration of the mutual obligations of the Parties, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties covenant and agree as follows:

SECTION 1

1. Definition of Terms.

1.1 Terms. For the purpose of this Agreement, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. “Access” means facilitation of all necessary City permits encroachments and/or license and/or lease agreements for specified areas within the Public Way. “Boundary” means the legal boundaries of the City as of the Effective Date. “Cabinets” means above ground enclosures placed within the Public Way for the protection of active and passive equipment for the provision of Service throughout the System and as further described in Exhibit A.
“Chambers” means underground enclosures placed within the Public Way facilitating access to the active and passive equipment for the provision of Service throughout the System. “Commencement Date” means the date that Substantial Completion, as that term is defined herein, of the System has been achieved.
“Construction” means breaking ground for the installation of the System.

Resolution No. 2022-143
Exhibit "A"

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“Construction Contractor” or “Contractor” means the construction company(ies) performing the physical work of installing the System.
“Drop” means the fiber optic cable run from the System at the edge of the Public Way or the Fiber Access Box (“FAB”) or the Toby Box (as each is described in Attachment 1) in the Public Way, as the case may be, to the Premises Wall.
“Excavation and Right-of-Way Encroachment Policy” means those policies, including the (i) City’s Encroachment Permit Application and Standard Conditions (ii) and Fiber Optic Cable Plan Check documents, as they apply as of the Effective Date, which set forth the procedures, standards and conditions under which the Escondido City Engineer will issue permits for the installation, construction, excavation, inspection, maintenance and/or repair, or other work performed in connection with underground, overhead and surface-mounted utility facilities located or proposed within the public rights-of-way.
“Facility” means the secure spaces that the City agrees to make available to SiFi during the Term for the installation of Shelters and Cabinets. “FOCUS” means SiFi’s trademarked FOCUS™ system including the patented Wastewater Fiber Technology, know-how and other proprietary rights, comprising, among other things, a combination of blown fiber, aerial, wastewater and other conventional techniques to enable multi gigabit technologies.
“FON” means SiFi’s fiber optic network built by utilizing a combination of blown fiber, aerial, wastewater and/or other conventional techniques, which may also include FOCUS™ design, as well as electronics to enable multi gigabit technologies. “Home” means a residential single-family dwelling, or a residential single dwelling unit located within a Multiple Dwelling Unit, located within the Boundary. “Multiple Dwelling Unit” means an apartment building or other building containing more than four dwelling units located within the Boundary.
“Microtrenching” means the process of cutting a trench with a dry cut machine and reinstated with cementitious slurry fill as further described in Section 4.1.1, and according to the requirements of the City’s Excavation and Right-of-Way Encroachment Policy, which Policy shall take precedence in the event of any conflicts.
“Pass” or “Passes” means the duct or Chamber as parts of the System has reached to the curbside of a residential Primary Premise, or the engineered point at or near a commercial Premises from which a Drop can be connected.
“Person” means any natural person or any association, firm, partnership, joint venture, corporation, limited liability company, or other legally recognized entity, whether for profit or not for profit, but shall not mean the City or SiFi.
“Premises” means a Home, Multiple Dwelling Unit, office, other public and private building, and City infrastructure asset located within the Boundary.

Resolution No. 2022-143
Exhibit "A"

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“Premises Wall” means the exterior of an outside wall of a Premises to which the fiber optic cable can be terminated.
“Primary Premises” means all Premises within the Boundary as of the Effective Date but excluding any Premises which SiFi cannot connect to (i) because of a lack of a right to access and use of the Public Way due to the City not possessing the right, title, interest or authority to permit SiFi to use and occupy the Public Way in order for SiFi to access such Premises, or (ii) because SiFi lacks a right to access to any non-City owned property within the Boundary in order to access such Premises, or (iii) because the incremental material cost to connect such Premises would be at least ten percent (10%) higher than the average cost to connect SiFi-accessible Primary Premises within the Boundary, or (iv)) where such Premises already have a pre-existing fiber service available to them and do not desire SiFi to connect such Premises. SiFi shall not be required or obligated to make the System available to such Premises described in (i) through (iv) in this definition, and Substantial Completion determination shall not be impacted as a result. “Public Way” shall mean the surface of, and the space above and below, any now existing or future: public street, road, highway, parkway, driveway, freeway, lane, path, court, sidewalk, bridge, alley, boulevard, traffic signals, lamp post, public way, or other public right of way or easement, including public utility easements, dedicated utility strips, or rights of way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by, granted or dedicated to or under the jurisdiction of the City within the Boundary. For the avoidance of doubt, the term “Public Way” shall also mean any easement now or hereafter held by the City within the Boundary for the purpose of public travel, or for utility or public service use dedicated for compatible uses and shall include all other easements or rights of way held by the City within the Boundary over which it may lawfully grant this right. “Service” means internet, voice, data, and video service or any combination thereof, provided by a Service Provider over the System.
“Service Providers” means any entity who enters into a contract with SiFi to provide Services over the System.
“Shelter” means the above ground facility housing System equipment as further described in Section 4.2 and in Exhibit A hereto.
“Subscribe” means an agreement to receive from a Service Provider. “Subscriber” means any Person (which for purposes of this definition shall include the City) who has entered into an agreement to receive or otherwise lawfully receives Service. “Substantial Completion” means the date on which, the System has been installed such that it Passes the addresses of each of the Primary Premises and the System is capable of providing Service to each such Primary Premises (but for the lack of a Drop) or four (4) years post Construction being commenced, whichever event occurs first; provided, however, in the event that Substantial Completion is deemed to have occurred due to the expiration of four (4) years post Construction being commenced, SiFi shall use commercially reasonable efforts to complete, subject to the conditions in the proviso above, such construction as is necessary to provide Service to all Primary Premises within a commercially reasonable time.

Resolution No. 2022-143
Exhibit "A"

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“System” means all parts of the FON system under and above ground in the City that is designed to support the delivery of Service to Subscribers, including the fiber optic cable and its component parts and appurtenances, and the other cables, wires, components, facilities, Cabinets, ducts, conduits, connectors, Shelters, Chambers, fiber access boxes, appliances, splitters, attachments, and other property, equipment, components, materials, apparatus and appurtenances to the FON system.
“Work Zone” means an area within the Boundary that is subject to a separate permit for installation of a portion of the System.

SECTION 2

2. Grant of Authority.

2.1 Grant of Permission.

SiFi Permission to Use Public Way. To the extent allowed by law, and subject to the City’s authority to manage the Public Way for the benefit and convenience of the public, the City hereby authorizes SiFi to erect, install, construct, repair, replace, reconstruct, maintain, operate or retain the System in, on, over, under, upon, across, or along any Public Way, including wires, cables, facilities, Cabinets, components, materials, apparatus ducts, conduits, connectors, vaults, fiber access boxes, appliances, splitters, pots, attachments, and other related property or equipment as may be necessary or appurtenant to the System, within the Boundary, and all extensions and additions thereto. Subject to City approval of the applicable permit and final engineering design, SiFi shall be responsible to submit for approval the proposed final engineering design and location, including but not limited to depth, width, and height, of all equipment and other parts of the System. Both Parties agree to cooperate during the design and permitting process and SiFi acknowledges and agrees that the City has final discretion and authority to approve any proposed designs, approve equipment to be permanently installed in the Public Way, and issue any requested permits, each of which shall not be unreasonably conditioned, withheld and/or delayed and subject to Section 2.5 below.

Notwithstanding the foregoing, installation of the System and use of the Public Way is subject to the applicable permit for a specific Work Zone.

Removal or Abandonment of the System upon Termination of Agreement. Upon the expiration or termination of this Agreement, SiFi shall remove any above- ground portion of the System and shall reimburse the City for any costs associated with SiFi’s failure to adequately remove the System or restore City property to its original condition, minus reasonable wear and tear. Upon the expiration or termination of this Agreement, SiFi shall either remove from, or abandon in place, all or any subsurface portion of the System in the Public Way.

Any part of the System not removed by SiFi upon expiration or termination shall be deemed abandoned by SiFi as described in this Agreement and may become the property of the City, if so elected by the City in its sole discretion. If the System is abandoned and the City elects not to take ownership of it, SiFi shall remain responsible for and agrees to defend and indemnify the City against any and all costs, claims or damages associated with the System.

2.2 Term of Agreement . This Agreement shall become effective upon the execution and delivery of this Agreement by the Parties (the “Effective Date”). The term of this Agreement shall commence on Commencement Date and run until midnight on the date that is thirty (30) years after the Commencement Date (the “Initial Term”). Following the Initial Term, Resolution No. 2022-143
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and subject to the System operating in accordance with this Agreement, this Agreement shall automatically renew for two additional terms of thirty (30) years each commencing on the thirtieth (30th) anniversary and on the sixtieth (60th) anniversary of the Commencement Date, respectively (each, a “Renewal Term,” and, collectively with the Initial Term, the “Term”) unless SiFi provides written notice to the City of its intent not to renew at least one hundred eighty (180) days prior to end of the Initial Term and thereafter at least one hundred eighty (180) days prior t o end of the first Renewal Term. If SiFi elects to not renew this Agreement, the provisions of Subsection 2.1.2, above, will govern the disposition of the System.

2.3 License.
(i) City hereby grants and conveys to SiFi, and its licensees, successors, lessees, transferees, and assigns, a revocable exclusive license (“License”) to enter and occupy portions of the City’s Public Way and/or City-owned land including for up to three (3) specific locations for Facilities as further described in Section 4.2, which locations will be mutually agreed upon in good faith between the City and SiFi (the “License Area”), for the purposes of erecting, installing, constructing, operating, repairing, replacing, reconstructing, removing, maintaining, using and retaining said System, including, without limitation, wires, cables, ducts, conduits, connectors, vaults, handholes, handhole covers, fencing, appliances, splitters, attachments, and other property, equipment, components, materials, apparatus and appurtenances to the System and the Facilities (the “ Improvements”). This License is subject to easements, covenants, conditions, and regulations in existence as of the date hereof , as well as the City’s authority to manage the Public Way for the benefit of the public. S iFi must obtain all necessary permits to install the Improvements.
(ii) SiFi shall not make any alterations to the License Area or the Improvements without the City’s prior written approval. SiFi shall be responsible for all costs incurred in any such alterations. All construction, installation, maintenance and repair of the License Area shall be conducted s o as to not interfere with, and shall be subordinate to, City’s use and operation of the Public Way. The installation of the System and alterations by SiFi in the License Area shall be completed by competent personnel or contractors, in conformity with all applicable permits, licenses, ordinances, laws and regulations, and free from any liens for labor or materials. Any damage to the License Area resulting from or in connection with the exercise of SiFi’s rights hereunder shall be corrected within a reasonable time by SiFi at its sole cost and expense.
(iii) SiFi will maintain the Improvements in accordance with this Agreement and the City’s Excavation and Rights-of-Way Encroachment Policy. (iv) SiFi shall not install or construct any other structures or improvements other than the Improvements and associated appurtenances described herein and noted on the approved permit plans.
(v) The Improvements installed within the License Area by SiFi shall be made at no expense to City. SiFi shall be responsible, and assume all costs, for any relocation or protection of any part of the System in the event the relocation or protection of the System is necessary due to changes in any Public Way at any time during the term of this Agreement. (vi) City shall, except for emergencies, provide prior written notice to SiFi of any modifications to, or alter ations of, the License Area. SiFi acknowledges the City has a Resolution No. 2022-143
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Pavement Management Program that consists of Full Depth Reclamation, Grind and Overlay and Slurry Seal treatments, and that the City has several storm drain, water, recycled water and wastewater (wet utility) projects, inclusive of lateral connections and service connection. SiFi acknowledges this t ype of work may be to a depth greater than the installation depth of SiFi’s infrastructure, and, as such, acknowledge s its duties and responsibilities to relocate, at its own expense, any and all infrastructure affected by the City’s street maintenance or wet utility projects. (vii) City, its agents or assigns, or any utility company , or City franchisee, may at any time, enter upon the License Area, except for the Shelter locations, covered by this Agreement for the purpose of installing, maintaining, relo cating, altering, enlarging, repairing, or inspecting any utility, facility, or public work thereon; provided that if the Parties have entered an agreement for the City’s use of the System, as described in Section 2.8, the City will require its contractors and agents to indemnify SiFi , as a third party, for any damages to the System, Improvements and Facilities caused by the negligence of the City contractors or its agents. (viii) Subject to the below, SiFi shall restore or cover the cost to restore, in its discretion, damaged or disturbed surfaces or underground utilities at or adjacent to the License Area to substantially the same as the original condition. Restoration shall be carried out immediately after construction or as otherwise reasonably directed by the City as provided for in the permit. Any damage not repaired by SiFi or its contractors, but excluding re pairs performed by other third parties, to the reasonable satisfaction of the City shall be a cause to suspend any construction operations on the System within the City’s limits until the unsatisfactory repairs are completed to be reasonably satisfactory to the City or termination of this Agreement pursuant to Section 8 below. Where SiFi or its contractor use microtrenching and such microtrenching directly results in cracking of the surrounding roadway emanating from the microtrench of the existing roadway creating loose pieces of roadway larger than 1 inch then such loose pieces will be removed and the affected area will restored with cementitious slurry fill and over band seal.

Specific details for repair of floating islands of pavement of 12 -24” wide will be inclu ded in the project plans that may include 2” grind of pavement and asphalt concrete overlay. (ix) SiFi will provide City with not less than thirty (30) spray cans with Cabinet matching color paint, which the City can use to spray paint over any graffiti on any Cabinet. SiFi shall also provide product information for the Cabinet matching paint color such that the City may secure additional paint if needed. If City is unable to remove or cover such graffiti, City may request SiFi's assistance by providing written notice and SiFi shall use commercially reasonable efforts to remove the graffiti within fourteen (14) days of such notice. Should such graffiti not be removed by SiFi or its contractor to the satisfaction of the City within said fourteen (14) days, the City may cause the graffiti to be removed and may submit an itemized statement to SiFi of the costs incurred by the City for such removal. Upon receipt of a demand for payment by City, SiFi must reimburse City for those costs within thirty (30) days of receipt of the invoice. (x) The System and all of its parts and components which are installed and constructed by SiFi in the License Area shall at all times be and remain the property of SiFi, except as otherwise provided for herein.
(xi) Subject to City’s right and authority to manage the Public Way, and as may be provided for or allowed by any issued construction or encroachment permit issued under this Agreement, City shall not install or construct, or permit the installation or construction of, any structures, improvements or obstructions on or over the License Area that unreasonably interferes with SiFi Network’ access to, use and possession of the License Area, nor shall City otherwise Resolution No. 2022-143
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unreasonably impede, disturb, interfere with, or restrict, SiFi’s access to, use and possession of, the License Area.

2.4 Exclusivity. Until after the first annive rsary of the Effective Date , and only to the extent allowed by law, and provided that the Parties have entered into an agreement for the City’s use of the System as described in Section 2.8, the City shall not solicit any third party regarding any competing fiber optic cable system within the City’s Boundary, subject to any obligation or requirements imposed upon the City in its capacity as a land use authority under federal or state law or regulation . Notwithstanding the above, the City may allow i nstallation of fiber optic cables by any franchisee of the State’s Public Utility Commission , an established internet service provider with an existing franchise agreement with the City as of the Effective Date, with the State to operate within the City, or as otherwise required by law.

2.5 Efficient Permitting Process.

During the Term, the City will use its best efforts to provide efficient and diligent good faith review of all applications for permits by SiFi and/or its contractors, to the extent reasonably possible and to the extent permits are necessary, including permits or other necessary items for construction work on the System within the Public Way. SiFi agrees to reimburse the City for additionally incurred review costs including the temporary hiring of: a permit technician to process the permits, a utility engineer to review and approve plans in accordance with City Policies and requirements, and a construction manager/inspector to manage the inspection process for the City in connection with this expedited permitting process. Conditioned upon SiFi’s reimbursement of the City’s costs pursuant to Section 2.6 , and subject to sufficient staffing levels, the City agrees to process and will endeavor to meet the timeframes below in connection with all applications for permits by SiFi and/or its contractors in connection with this Agreement:
(i) Within two (2) business days of submittal by SiFi and/or its contractors of an application or other request for a permit in connection with this Agreement, the City will provide written acknowledgment to SiFi and/or its contractor confirming receipt of such submittal; and
(ii) Within five (5) business days of submittal by SiFi and/or its contractors of an application or other request for a permit in connection with this Agreement, the City will either acknowledge in writing that such application is properly submitted and complete, or in the event such application is not properly su bmitted and complete, provide SiFi and/or its contractors with a detailed written explanation of any deficiencies. Upon curing any such deficiencies, the City will undertake an expedited review of the application per the timelines specified herein; and
(iii) Within fifteen (15) calendar days of a reasonably sufficient submittal by SiFi and/or its contractors of an application or other request for a permit in connection with this Agreement, the City will provide written notification of initial review and provide in writing to SiFi and/or its contractors a detailed explanation of any additional information needed for the City to complete its review process. In the event no additional information is needed, the City shall so notify SiFi and/or its contractors in writing; and
(iv) Within twenty-one (21) calendar days of a sufficient submittal by SiFi and/or its contractors of an application or other request for a permit in connection with this Resolution No. 2022-143
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Escondido City CouncilSeptember 28, 2022

Escondido City Council
September 28, 2022