Agenda packet — Escondido City Council, November 15, 2023 (part 1 of 2)

CITY of ESCONDIDO
Council Meeting Agenda
WEDNESDAY, NOVEMBER 15, 2023
4:00 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
Dane White

DEPUTY MAYOR
Joe Garcia (District 2)

COUNCILMEMBERS
Consuelo Martinez (District 1)
Christian 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, November 15, 2023

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, November 15, 2023

CLOSED SESSION
4:00 PM

CALL TO ORDER

1. Roll Call: C. Garcia, J. Garcia, Martinez, Morasco, White

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

I. CONFERENCE WITH LABOR NEGOTIATORS (Government Code § 54957.6)

a. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Police Officers’ Association Sworn Personnel Bargaining Unit
b. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Police Officers’ Association Non-Sworn Personnel Bargaining Unit
c. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Firefighters’ Association Safety Personnel and Non-safety Personnel Bargaining Unit
d. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido City Employees’ Association Supervisory Bargaining Unit e. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Maintenance and Operations Bargaining Unit and Administrative/ Clerical/Engineering Bargaining Unit, Teamsters Local 911 f. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Police Management Association (Unrecognized) Bargaining Unit

3 Wednesday, November 15, 2023

II. CONFERENCE WITH LEGAL COUNSEL--PENDING LITIGATION (Government Code §54956.9(d))

a. Linda Braaksma v. City of Escondido, et al.

San Diego Superior Court Case No. 37-2022-00011999-CU-PO-NC b. Building Industry Association of SD County v. City of Escondido San Diego Superior Court Case No. 37-2021-00008423-CU-MC-NC c. Claim of Escondido North, LLC re: Ash Street Subdivision Fee Protest (per § 54956.9(e)(3))

III. CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Government Code § 54956.8)

a. Property: 272 E. Via Rancho Pkwy, Escondido (North County mall) b. Agency Negotiator: Sean McGlynn, City Manager, or designee c. Negotiating Parties: Steerpoint Capital
d. Under Negotiation: Price and Terms of Ground Lease

ADJOURNMENT

4 Wednesday, November 15, 2023

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 meeting to be led by the City Clerk. The City does not endorse, sponsor or sanction any particular religion and any remarks made are to allow all individuals to personally reflect, contemplate, pray, or meditate as they deem appropriate.

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

CALL TO ORDER
Roll Call: C. Garcia, J. Garcia, Martinez, Morasco, White

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) -

5 Wednesday, November 15, 2023

2. APPROVAL OF WARRANT REGISTER (COUNCIL) -
Request the City Council approve the City Council and Housing Successor Agency warrant numbers:
 378218 – 378422 dated October 25, 2023
 378423 – 378598 dated November 01, 2023
Staff Recommendation: Approval (Finance Department: Christina Holmes)

3. APPROVAL OF MINUTES: Regular meetings of October 25, 2023 and November 1, 2023

4. WAIVER OF READING OF ORDINANCES AND RESOLUTIONS –

5. BID AWARD FOR RFB NO. 24-03 CENTRAL PLANT CHILLER NO. 3 REPLACEMENT PROJECT AND BUDGET

ADJUSTMENT
Request the City Council adopt Resolution No. 2023-143, authorizing the Mayor to execute, on behalf of the City, a Public Improvement Agreement with A.O. Reed & Co., in an amount not to exceed $240,594 for the installation of a new chiller unit for the Central Plant Chiller No. 3 Replacement Project (“Project”); and approve a budget adjustment in the amount of $267,851.

Staff Recommendation: Approval (Public Works Department: Joseph Goulart, Director of Public Works) Presenter: Joseph Goulart, Director of Public Works
a) Resolution No. 2023-143

6. BID AWARD FOR RFB NO. 24-05 LIVE RAINBOW TROUT
Request the City Council adopt Resolution No. 2023-144, authorizing the Mayor to execute, on behalf of the City, a Public Services Agreement with Jess Ranch Fish Hatchery for the purchase of Live Rainbow Trout to stock Lake Dixon and Lake Wohlford.

Staff Recommendation: Approval (Public Works Department: Joseph Goulart, Director of Public Works) Presenter: Brian Thill, Lakes and Open Space Superintendent a) Resolution No. 2023-144

6 Wednesday, November 15, 2023

7. APPROVE CONSULTING SERVICES AGREEMENT WITH HR GREEN PACIFIC, INC. FOR ON CALL

ENGINEERING SERVICES
Request the City Council adopt Resolution No. 2023-141 authorizing the Mayor to execute, on behalf of the City, a consulting services agreement with HR Green Pacific Inc., for on call engineering services for the SiFi FiberCity project.

Staff Recommendation: Approval (Development Services Department: Christopher W. McKinney, Deputy City Manager/Interim Director of Development Services and Julie Procopio, City Engineer) Presenter: Julie Procopio, City Engineer
a) Resolution No. 2023-141

8. MILLS ACT CONTRACT FOR 820 S. MAPLE STREET – PL23-0279 Request the City Council adopt Resolution No. 2023-154, authorizing the Mayor to execute, on behalf of the City of Escondido, a Historic Property Preservation Agreement (Mills Act Contract), with Israel Murguia and Melissa Garcia for the Property located at 820 S. Maple Street.

Staff Recommendation: Approval (Development Services Department: Christopher W. McKinney, Deputy City Manager/Interim Director of Development Services) Presenter: Alex Rangel, Assistant Planner I
a) Resolution No. 2023-154

9. AWARD OF CONSTRUCTION CONTRACT FOR 2023 STREET MAINTENANCE PROJECT – PHASE 1 (CONCRETE AND TREE REPLACEMENT)
Request the City Council adopt Resolution No. 2023-151 awarding the construction contract to L.C.

Paving & Sealing, Inc., determined to be the lowest responsible and responsive bidder, and authorizing the Mayor, on behalf of the City, to execute a Public Improvement Agreement in the amount of $499,279.50 for Phase I of the 2023 Street Rehabilitation and Maintenance Project (“Project”).

Staff Recommendation: Approval (Development Services Department: Christopher W. McKinney, Deputy City Manager/Interim Director of Development Services, and Julie Procopio, City Engineer) Presenter: Matt Souttere, Associate Engineer
a) Resolution No. 2023-151

7 Wednesday, November 15, 2023

10. MEMBER AGENCY ADMINISTERED INCENTIVE PROGRAM GRANT FOR WATER CONSERVATION

OUTREACH MATERIALS
Request the City Council adopt Resolution No. 2023-148 authorizing the acceptance of a $7,800 grant from the Metropolitan Water District and the San Diego County Water Authority to fund the purchase of water conservation outreach materials and a demonstration model; authorizing the Environmental Programs Manager to execute all documents necessary for the management and completion of the grant scope; and, authorizing the necessary budget adjustment needed to establish a new project number for tracking and spending of grant funds.

Staff Recommendation: Approval (Utilities Department: Angela Morrow, Interim Director of Utilities) Presenter: Juan Magdaraog, Environmental Programs Manager a) Resolution No. 2023-148

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.)

11. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ESCONDIDO, CALIFORNIA, TO REPEAL ESCONDIDO MUNICIPAL CODE CHAPTER 2, ARTICLE 7, SECTION 2-103, LIMITATIONS ON CAMPAIGN

CONTRIBUTIONS
Approved on October 25, 2023 with a vote of 5/0.
a) Ordinance No. 2023-14 (Second Reading and Adoption)

8 Wednesday, November 15, 2023

PUBLIC HEARINGS

12. A REQUEST TO REMOVE A CONDITION OF APPROVAL APPLIED TO A MAJOR PLOT PLAN REQUIRING

FUNDING OF ONGOING MUNICIPAL SERVICES REQUIRED BY THE PROJECT Request the City Council uphold the Planning Commission recommendation of denial (4-2-1) to modify a Major Plot Plan in order to eliminate a condition of approval requiring funding of ongoing municipal services. The request is for a project condition of approval required for a 44-unit apartment project located at 1860, 1866, 1870 & 1896 S. Escondido Blvd. and the City Council may a) adopt Resolution No. 2023-152, denying a modification and upholding a condition of approval; or b) adopt Resolution No. 2023-153, granting the modification and waiving the condition of approval.

Staff Recommendation: Approval (Development Services Department: Christopher W. McKinney, Deputy City Manager/Interim Director of Development Services) Presenter: Veronica Morones, City Planner
a) Resolution No. 2023-152
b) Resolution No. 2023-153

13. AUTHORIZATION TO PARTICIPATE IN THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY’S BOND

OPPORTUNITIES FOR LAND DEVELOPMENT PROGRAM
Request the City Council hold a Public Hearing to consider adoption of Resolution No. 2023-155 authorizing City participation in the California Municipal Finance Authority’s (“CMFA”) Bond Opportunities for Land Development (“BOLD”) Program.

Recommendation: Approval (Development Services Department: Christopher W. McKinney, Deputy City Manager/ Interim Director of Development Services)
Presenter: Christopher W. McKinney, Deputy City Manager/Interim Director of Development Services a) Resolution No. 2023-155

9 Wednesday, November 15, 2023

CURRENT BUSINESS

14. PROPOSED EDI RATE ADJUSTMENTS
Request the City Council adopt Resolution No. 2023-136, approving the annual residential and commercial solid waste and recycling rate adjustments pursuant to the terms of the City of Escondido’s (“City’s”) adopted Solid Waste and Recycling Franchise Agreement with Escondido Disposal, Inc. (“EDI”).

Upon approval by the City Council, the proposed rate adjustments will become effective January 1, 2024.

Staff Recommendation: Approval (Utilities Department: Angela Morrow, Interim Director of Utilities) Presenter: Angela Morrow, Interim Director of Utilities a) Resolution No. 2023-136

15. PUBLIC ART COMMISSION INTERVIEWS
Request the City Council conduct interviews of applicants and fill an unscheduled vacancy on the Public Art Commission.

Staff Recommendation: None (City Clerk’s Office: Zack Beck, City Clerk) Presenter: Zack Beck, City Clerk

16. REVIEW AND UPDATE CITY COUNCIL INTERAGENCY AND SUBCOMMITTEE ASSIGNMENTS Request the City Council review and update the City's current interagency and council subcommittee assignments.

Staff Recommendation: Approval (City Council: Dane White, Mayor) Presenter: Mayor Dane White

17. RECONSIDERATION OF PUBLIC COMMENT POLICY
Request the City Council reconsider the City's current public comment policy and approve Resolution No. 2023-158 amending Section 6 of the Council Policies and Rules of Procedure.

Staff Recommendation: Approval (City Council: Christian Garcia, Councilmember) Presenter: Councilmember Christian Garcia
a) Resolution No. 2023-158

10 Wednesday, November 15, 2023

FUTURE AGENDA

18. 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, an d Community Development. This report is also available on the City’s website, www.escondido.org.

ADJOURNMENT

UPCOMING MEETING SCHEDULE
Wednesday, December 06, 2023 4:00 & 5:00 PM Closed Session, Regular Meeting, Council Chambers Wednesday, December 13, 2023 4:00 & 5:00 PM Closed Session, 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.

11 Consent Item No. 1 November 15, 2023

A F F I D A V I T S

I T E M

P O S T I N G –

 MODIFICATION OF MAJOR PLOT PLAN – PL23-
0176 AND ADM 19-0092

 CMFA BOLD PROGRAM

12 Item1.

CITY OF ESCONDIDO

OFFICE OF THE CITY CLERK
201 NORTH BROADWAY
ESCONDIDO, CA 92025-2798
760-839-4617

NOTICE OF PUBLIC HEARING
The Escondido City Council will hold a public hearing in the City Council Chambers, Escondido City Hall, 201 N. Broadway, Escondido, California at 5 p.m. on Wednesday, November 15, 2023, to consider the item listed below:

MODIFICATION OF MAJOR PLOT PLAN – PL23-0176 and ADM 19-0092:

REQUEST
: The Applicant has submitted a request to waive an existing condition of approval requiring funding of ongoing operational cost of providing municipal services for an approv ed 44-unit apartment project located on the northeast corner of S. Escondido Boulevard and Vermont Avenue, in the Escondido Boulevard District of the South Centre City Specific Plan. The project includes a density bonus allowing a 42.5% increase in allowable density in exchange for the provision of four deed- restricted very-low-income units. This project has already been approved and consideration of this item is limited to the requested waiver of the condition of approval.

Planning Commission Action: On September 12, 2023, the Planning Commission voted 4-2 to deny the applicants request for a modification to eliminate a condition of approval requiring funding of ongoing operational costs of providing municipal services required by the Project.

PROPERTY SIZE AND LOCATION: 1.05-acre parcel located on the northeast corner of South Escondido Boulevard and Vermont Avenue, addressed at 1860, 1866, 1870 and 1896 S. Escondido Boulevard (Assessor Parcel Numbers 236-260-34, -35, -36 and 236-260-37-00).

ENVIRONMENTAL STATUS: A Categorical Exemption was issued for the project in accordance with California Environmental Quality Act (CEQA) Guidelines section 15332, “In-fill Development Projects.” If you challenge this item in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing.

PUBLIC COMMENT: To submit comments in writing, please do so at the following link: https://escondido- ca.municodemeetings.com/bc-citycouncil/webform/public-comment. All comments received from the public will be made a part of the record of the meeting.

The City of Escondido remains committed to complying with the Americans with Disabilities Act (ADA). Qualified individuals with disabilities who wish to participate in City programs, services, or activities and who need accommodations are invited to present their requests to the City by filing out a Request for
Accommodations Form or an Inclusion Support Request Form for Minors, or by calling 760-839-4643, preferably at least 72 hours in advance of the event or activity. Forms can be found on the City’s website at: https://www.escondido.org/americans-with-disabilities- act.

T
he staff report will be available at the Escondido Planning Division, 201 N. Broadway, Escondido, CA 92025, and on the City’s website at https://escondido-ca.municodemeetings.com/ after Thursday, November 9, 2023.

For additional information, please contact Veronica Morones, City Planner, at 760-839-4548, or via email at
[email protected], and refer to Case No. ADM19-0092.

Zack
Beck, City Clerk
City of Escondido
November 2, 2023

Published in THE ESCONDIDO TIMES-ADVOCATE:
11/02/23 13
Item1.

Published in THE ESCONDIDO TIMES-ADVOCATE:
11/09/23
14 Item1.

STAFF REPORT

November 15, 2023
File Number 0400-40

SUBJECT

APPROVAL OF WARRANT REGISTER (COUNCIL)

DEPARTMENT
Finance

RECOMMENDATION
Request approval for City Council and Housing Successor Agency warrant numbers:
378218 – 378422 dated October 25, 2023
378423 – 378598 dated November 01, 2023
Staff Recommendation: Approval (Finance Department: Christina Holmes)

FISCAL ANALYSIS
The total amount of the warrants for the following periods are as follows:

October 19, 2023 – October 25, 2023 is $3,794,937.22
October 26, 2023 – November 01, 2023 is $911,616.33

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.

15 Item2.

October 25, 2023 Escondido City Council Minutes Page 1 of 7

CLOSED SESSION
4:00 PM

CALL TO ORDER

1. Roll Call: C. Garcia, J. Garcia, Martinez, Morasco, White

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 discuss ing 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

I. CONFERENCE WITH LABOR NEGOTIATORS (Government Code § 54957.6)

a. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Police Officers' Association Sworn Personnel Bargaining Unit

b. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Police Officers' Association Non-Sworn Personnel Bargaining Unit

c. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Firefighters’ Association Safety and Non-safety Bargaining Unit

d. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido City Employees’ Association Supervisory Bargaining Unit

e. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Maintenance and Operations Bargaining Unit and Administrative/Clerical/Engineering Bargaining Unit, Teamsters Local 911 16 Item3.

October 25, 2023 Escondido City Council Minutes Page 2 of 7

ADJOURNMENT
Mayor White adjourned the meeting at 4:42 p.m.

______________________________ _______________________________

MAYOR CITY CLERK

17 Item3.

October 25, 2023 Escondido City Council Minutes Page 3 of 7

REGULAR SESSION
5:00 PM Regular Session

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

CALL TO ORDER
Roll Call: C. Garcia, J. Garcia, Martinez, Morasco, White

PRESENTATIONS
California Center for the Arts Escondido

CLOSED SESSION REPORT

ORAL COMMUNICATIONS
Becky Rapp – Expressed concern about marijuana edibles being marketed to students.

CONSENT CALENDAR
Motion to approve Consent Calendar: Morasco; Second: C. Garcia; 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:
 377630 – 377788 dated October 4, 2023
 377789 – 377994 dated October 11, 2023
Staff Recommendation: Approval (Finance Department: Christina Holmes) 18 Item3.

October 25, 2023 Escondido City Council Minutes Page 4 of 7

3. APPROVAL OF MINUTES: Regular Meeting of October 11, 2023

4. WAIVER OF READING OF ORDINANCES AND RESOLUTIONS

5. FISCAL YEAR 2022-23 REGIONAL REALIGNMENT RESPONSE GRANT AND BUDGET

ADJUSTMENT
Request the City Council adopt Resolution No. 2023-118 authorizing the Chief of Police to accept a Fiscal Year 2022-23 Regional Realignment Response Grant in the amount of $80,000 from the State of California Board of Community Corrections; 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. (File Number 0480-70) Staff Recommendation: Approval (Police Department: Edward Varso, Chief of Police) Presenter: Edward Varso, Chief of Police
a) Resolution No. 2023-118

6. FISCAL YEAR 2023-24 ALCOHOLIC BEVERAGE CONTROLS’ ABC-OTS GRANT PROGRAM

AWARD AND BUDGET ADJUSTMENT
Request the City Council adopt Resolution No. 2023-137 and authorize the Escondido Police Department to accept a Fiscal Year 2023-2024 Department of Alcoholic Beverage Control’s ABC-OTS Grant Program award in the amount of $25,000; 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. (File Number 0480-70)
Staff Recommendation: Approval (Police Department: Edward Varso, Chief of Police) Presenter: Edward Varso, Chief of Police
a) Resolution No. 2023-137

7. AUTHORIZATION TO PROCESS AN AMENDMENT TO THE GENERAL PLAN LAND USE AND

COMMUNITY FORM CHAPTER TO MODIFY THE RESIDENTIAL AREA OVERLAY OF THE IMPERIAL OAKES CORPORATE CENTER - SPECIFIC PLANNING AREA 13 Request the City Council authorize the processing of an amendment to the General Plan Land Use and Community Form Chapter to allow for an expansion of the residential area overlay, increase in density to 48 dwelling units per acre (“du/ac”), and specify the use of the planned development process for certain projects, within the Imperial Oakes Corporate Center Specific Planning Area 13 (“SPA 13”). (File Number 0830-20) Staff Recommendation: Approval (Development Services Department: Christopher McKinney, Deputy City Manager/Interim Director of Development Services) 19 Item3.

October 25, 2023 Escondido City Council Minutes Page 5 of 7

Presenter: Ivan Flores, Senior Planner

8. ACCEPTANCE OF TRUST DISTRIBUTION FROM THE PATRICIA D. SEELIG SEPARATE PROPERTY TRUST
Request the City Council adopt Resolution No. 2023-140 authorizing the City Manager to execute all documents required to accept, on behalf of the City, a trust distribution from The Patricia D. Seelig Separate Property Trust, dated December 11, 2002, as amended. (File Number 0430-10)
Staff Recommendation: Approval (City Attorney’s Office: Michael R. McGuinness, City Attorney)
Presenter: Michael R. McGuinness, City Attorney
a) Resolution No. 2023-140

9. REPEAL CHAPTER 2, ARTICLE 7, SECTION 2-103 OF THE ESCONDIDO MUNICIPAL CODE

REGARDING CONTROLS ON CAMPAIGN CONTRIBUTIONS
Request the City Council introduce Ordinance No. 2023-14 repealing Section 2-103 from Escondido Municipal Code Chapter 2, Article 7, regarding Campaign Contribution Limitations. (File Number 0680-10)
Staff Recommendation: None (City Clerk’s Office: Zack Beck, City Clerk) Presenter: Zack Beck, City Clerk
a) Ordinance No. 2023-14 (First Reading and Introduction)

10. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ESCONDIDO, CALIFORNIA, APPROVING THE 2023 OMNIBUS THAT AMENDS VARIOUS ARTICLES OF THE ESCONDIDO

ZONING CODE AND ONE AMENDMENT TO THE ESCONDIDO SUBDIVISION ORDINANCE Approved on October 11, 2023 with a vote of 5/0.
a) Ordinance No. 2023-15 (Second Reading and Adoption)

CURRENT BUSINESS
20 Item3.

October 25, 2023 Escondido City Council Minutes Page 6 of 7

11. NORTH COUNTY DISPATCH JPA APPOINTMENT
Request that the Mayor nominate and the City Council appoint a primary and alternate member to the North County Dispatch JPA Board of Directors. (File Number 0130-10) Staff Recommendation: Approval (City Clerk's Office: Zack Beck, City Clerk) Presenter: Zack Beck, City Clerk
Motion to appoint Deputy Mayor Garcia as primary and Councilmember Morasco as alternate:

White; Second: Martinez; Approved: 5-0

FUTURE AGENDA

12. 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
Deputy Mayor Garcia – Attended a North County Transit District Meeting and a CCAE Subcommittee Meeting.

Councilmember – Attended the Catalyst San Diego Annual Conference and a CCAE Subcommittee Meeting.

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 avai lable on the City’s website, www.escondido.org.

ORAL COMMUNICATIONS
None.

21 Item3.

October 25, 2023 Escondido City Council Minutes Page 7 of 7

ADJOURNMENT
Mayor White adjourned the meeting at 5:45 p.m.

______________________________ _______________________________

MAYOR CITY CLERK
22 Item3.

November 1, 2023 Escondido City Council Minutes Page 1 of 8

CLOSED SESSION
4:00 PM

CALL TO ORDER

1. Roll Call: C. Garcia, J. Garcia, Martinez, Morasco, White

CLOSED SESSION
I. CONFERENCE WITH LABOR NEGOTIATORS (Government Code § 54957.6) a. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Police Officers’ Association Sworn Personnel Bargaining Unit
b. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Police Officers’ Association Non-Sworn Personnel Bargaining Unit
c. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido Firefighters’ Association Safety Personnel and Non- safety Personnel Bargaining Unit
d. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Escondido City Employees’ Association Supervisory Bargaining Unit
e. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Maintenance and Operations Bargaining Unit and Administrative / Clerical / Engineering Bargaining Unit, Teamsters Local 911
23 Item3.

November 1, 2023 Escondido City Council Minutes Page 2 of 8

f. Agency Representative: Sean McGlynn, City Manager, or designee Employee Organization: Police Management Association (Unrecognized) Bargaining Unit
II. CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION (Government Code §54956.9(d)(1))
a. Justin Miller v. City of Escondido; AdminSure, Inc.

WCAB No: ADJ15664263; ADJ15664181
III. CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Government Code § 54956.8) a. Property: 272 Via Rancho Pkwy, Escondido (North County Mall) b. Agency Negotiator: Sean McGlynn, City Manager, or designee c. Negotiating Parties: Steerpoint Capital and affiliates d. Under Negotiation: Price and Terms of Ground Lease
IV. CONFERENCE WITH LEGAL COUNSEL – PENDING LITIGATION (Government Code § 54956.9(d)(2) and (e)(3))

a. Claim of Escondido North, LLC re: Ash Street Subdivision Fee Protest

ADJOURNMENT

Mayor White adjourned the meeting at 4:45 p.m.

______________________________ _______________________________

MAYOR CITY CLERK

24 Item3.

November 1, 2023 Escondido City Council Minutes Page 3 of 8

REGULAR SESSION
5:00 PM Regular Session
Mobilehome Rent Review Board

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

CALL TO ORDER
Roll Call: C. Garcia, J. Garcia, Martinez, Morasco, White

PRESENTATION
First Aqueduct Structures Rehabilitation Project - San Diego County Water Authority

CLOSED SESSION REPORT
The City Council voted 5-0 to approve a settlement amount of $113,462.50 in the case Justin Miller v.

City of Escondido; AdminSure, Inc.

ORAL COMMUNICATIONS
Amir Moradi – Requested the City of Escondido pass a resolution in support of Palestine.

Gloria Conejo – Requested the Federal Government stop providing funding to Israel and that the City reallocate money from Escondido Police Department to other public services.

Gladys Guzman – Advocated for a ceasefire between Israel and Gaza.

Aisha Chaudry – Requested the City of Escondido pass a resolution in support of Palestine.

Alexandra Villegas – Requested the City of Escondido pass a resolution in support of Palestine.

Anisa Chaudry – Advocated that the City stand against war crimes. 25 Item3.

November 1, 2023 Escondido City Council Minutes Page 4 of 8

Anzy McWha – Expressed concern regarding the conflict between Israel and Palestine.

Cinthya Gonzalez - Requested the City of Escondido pass a resolution in support of Palestine.

Hugo Gonzalez – Requested the City of Escondido pass a resolution in support of Palestine.

Irish Alminar – Requested the City of Escondido pass a resolution in support of Palestine.

Jacqueine Huff – Requested the City of Escondido pass a resolution in support of Palestine.

Jade Brant – Expressed concern regarding the conflict between Israel and Palestine.

Jasper Anda – Advocated for a ceasefire between Israel and Gaza.

Joe Masso – Requested the City of Escondido pass a resolution in support of Palestine.

Leslie Gonzalez – Requested the City of Escondido pass a resolution in support of Palestine.

Melinda – Requested the City of Escondido pass a resolution in support of Palestine.

Sarah Brown – Requested the City of Escondido pass a resolution in support of Palestine.

Suhail Virgen – Requested the City of Escondido pass a resolution in support of Palestine.

Tiffany Gonzalez – Requested the City of Escondido pass a resolution in support of Palestine.

Leslie Ellsworth – Requested the City of Escondido pass a resolution in support of Palestine.

Max Yang – Requested the City of Escondido pass a resolution in support of Palestine.

Chad Adapon – Advocated for a ceasefire between Israel and Gaza.

Eliana Pelayo – Advocated for a boycott of companies that support Israel.

Melinda Yang – Requested the City of Escondido pass a resolution in support of Palestine.

Leslie Ellsworth – Requested the City of Escondido pass a resolution in support of Palestine.

Daisy Olivarez – Requested the City of Escondido pass a resolution in support of Palestine.

Maria Olivarez – Advocated for a ceasefire between Israel and Gaza.

26 Item3.

November 1, 2023 Escondido City Council Minutes Page 5 of 8

CONSENT CALENDAR
Motion: Morasco; Second: C. Garcia; 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:
 377995 – 378217 dated October 18, 2023
Staff Recommendation: Approval (Finance Department: Christina Holmes)

3. APPROVAL OF MINUTES: Regular meeting of October 18, 2023

4. WAIVER OF READING OF ORDINANCES AND RESOLUTIONS –

5. STATE OF CALIFORNIA OPIOID SETTLEMENT FUNDS
Request the City Council adopt Resolution No. 2023-142 authorizing the Mayor to execute, on behalf of the City, the Public Services Agreement with Escondido COMPACT to provide opioid abuse education, prevention, and intervention services; authorizing the Chief of Police to accept annual Opioid Settlement Funds from the State of California; and approving budget adjustments needed to spend settlement funds. (File Number 0600-10; A-3480) Staff Recommendation: Approval (Police Department: Edward Varso, Chief of Police) Presenter: Edward Varso
a) Resolution No. 2023-142

PUBLIC HEARINGS

6. LONG-FORM MOBILE HOME RENT REVIEW BOARD HEARING FOR EASTWOOD MEADOWS MOBILEHOME PARK (CASE/FILE NO. 0697-20-10336)
Request the City Council, serving as the Mobilehome Rent Review Board, consider the Long- form rent increase application submitted by Eastwood Meadows Mobilehome Park (“Applicant”) as well as the Eastwood Meadows Long-Form Rent Increase Analysis and recommendation provided by RSG; approve an increase based on the expert analysis provided by RSG, and if approved, adopt Rent Review Board Resolution No. RRB 2023-145. (File Number 0697-20-10336)
27 Item3.

November 1, 2023 Escondido City Council Minutes Page 6 of 8

Staff Recommendation: Approval (Development Services Department: Chris McKinney, Deputy City Manager/Interim Director of Development Services)
Deputy Mayor Garcia recused himself from this item and left the dais at 5:44 p.m.

Presenter: Danielle Lopez, Interim Housing and Neighborhood Services Manager a) Resolution RRB No. 2023-145
Chad Castenheiser – Expressed support for this item.

Julie Paule – Expressed support for this item.

Mikhail Murray – Expressed opposition to this item.

David Martin – Expressed opposition to this item.

Bob Wise – Expressed opposition to this item.

Laura James – Expressed opposition to this item.

Timothy French – Expressed opposition to this item.

Sue Nash – Expressed opposition to this item.

Motion to approve the staff recommendation of a $34.48 monthly rent increase, plus a $10.57 increase for reimbursement of the capital improvement as well as a $10.22 increase to reimburse the long-form application cost for a total increase of $ 55.27: Morasco; Second: C.

Garcia; Approved 3-1 (Martinez – No)
Deputy Mayor Garcia returned to the dais at 7:32 p.m.

7. TOW COMPANY APPEALS HEARING
Request the City Council approve Resolution Nos. 2023-138 and 2023-139 denying the appeals of Quality East County Inc./Quality Towing East Quality Towing (“Quality Towing”) and Tow and Transport Inc./Roadway Towing & Recovery (“Roadway Towing”) challenging their non-selection for a City towing contract. (File Number 0250-55) Staff Recommendation: Approval (Police Department: Edward Varso, Chief of Police) Presenter: Edward Varso, Chief of Police
a) Resolution No. 2023-138
28 Item3.

November 1, 2023 Escondido City Council Minutes Page 7 of 8

Rodi Mikha – Expressed opposition to staff recommendation and support for the appeal.

Motion: C. Garcia; Second: Martinez; Approved: 5-0
b) Resolution No. 2023-139
Luis Andrade – Expressed support for the staff recommendation.

Motion: Morasco; Second: Morasco; Approved: 5-0

CURRENT BUSINESS

8. APPOINTMENT OF AD HOC SUBCOMMITTEE TO ADDRESS THE CITY'S ON-GOING

STRUCTURAL DEFICIT
Request the City Council appoint an ad-hoc subcommittee to address City’s on-going structural deficit. (File Number 0130-10)
Staff Recommendation: Approval (City Clerk’s Office: Zack Beck, City Clerk) Presenter: Zack Beck
Margaret Decker – Expressed concern that a subcommittee would not provide adequate opportunities for public participation.

Motion to appoint Mayor White and Deputy Mayor Garcia to the Structural Budget Deficit Subcommittee: Morasco; Second: White; Approved: 5-0

WORKSHOP

9. TRANSPORTATION PRIMER
Request the City Council hold a workshop to discuss transportation in preparation for upcoming local and regional planning efforts. (File Number 1080-65) Staff Recommendation: Receive and File (Development Services Department: Chris McKinney, Interim Development Services Director/ Deputy City Manager and Julie Procopio, City Engineer)
Presenters: Chris McKinney and Julie Procopio
No Council Action Required.

FUTURE AGENDA
29 Item3.

November 1, 2023 Escondido City Council Minutes Page 8 of 8

10. 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) White – Interagency and Council Subcommittee Assignments.

Morasco - Review of Long-Form Rental Application process.

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.

ORAL COMMUNICATIONS
None.

ADJOURNMENT
Mayor White adjourned the meeting at 8:37 p.m.

______________________________ _______________________________

MAYOR CITY CLERK
30 Item3.
31 Item4.

STAFF REPORT

November 15, 2023
File Number 0600-10; A3482

SUBJECT
BID AWARD FOR RFB NO. 24 -03 CENTRAL PLANT CHILLER NO. 3 REPLACEMENT PROJECT & BUDGET

ADJUSTMENT

DEPARTMENT
Public Works/Building Maintenance

RECOMMENDATION
Request the City Council adopt Resolution No. 2023-143, authorizing the Mayor to execute, on behalf of the City, a Public Improvement Agreement with A.O. Reed & Co., in an amount not to exceed $240,594 for the installation of a new chiller unit for the Central Plant Chiller No. 3 Replacement Project (“Project”); and approve a Budget Adjustment in the amount of $267,851.

Staff Recommendation: Approval (Public Works Department: Joseph Goulart, Director of Public Works) Presenter: Joseph Goulart, Director of Public Works

FISCAL ANALYSIS
A budget adjustment in the amount of $267,851 is requested to transfer unused CCAE deferred maintenance funds in project No. 917901 to the Facility Improvement Capital Improvement Project No. 917301. The Central Plant Chiller No. 3 replacement pro ject will be funded using Facility Improvement funds in project No. 917301. Any funds remaining after the project is completed will be retained for future deferred maintenance projects.

PREVIOUS ACTION
None.

BACKGROUND
The current Central Plant facility was constructed in 2005 with the purpose of providing essential Heating, Ventilation, and Air Conditioning (“HVAC”) functionality to the California Center for the Arts and City Hall facilities. The Central Plant is comprised of four chiller units, three (3) 350-ton and one (1) 150-ton TecoChill water-cooled engine-driven chillers.

On July 5, 2023, Chiller 3, a 150-ton unit, experienced failure of several condenser tubes housed within the heat exchanger and shut down the entire Central Plant HVAC system . These tubes support the 32 Item5.

necessary heat exchange required to effectively transfer heat to cool the facilities without overloading the system. Due to the failure of Chiller 3, high ambient temperatures in July, and the shutdown of the Central Plant, the City Manager was forced to shut down City Hall on July 6, 2023. Luckily, City staff was able to bring the Central Plant back online the next day with Chiller 3 out of the HVAC loop.

On July 7, 2023, City Staff inspected Chiller 3’s failure by removing the he at exchanger barrel end s to examine multiple cracked condenser tubes. Upon review, staff determined the unit was beyond repair and beyond its useful life. The City maintains an annual contract to provide maintenance services. These services include the removal of fouling that may accumulate in said tubes which can cause overall system capacity loss and increased energy consumption in order to continue to meet the HVAC demands of both facilities. Despite these preventive measures, the 150 -ton unit experienced a major failure that has expended its usability, well within the median lifetime for this type of equipment. Given the unit’s age and the complexity of the failure, City staff deemed it to be in the best interest of the City to replace the entire chiller unit.

On July 7, 2023, the City awarded a Public Services Agreement to Aerco Systems, LLC, for the rental of a 200-ton chiller unit for a four-month period to ensure the Central Plant could keep up with demands on the system during the warmer months.

On September 7, 2023, the City published a Request for Bids No. 24 -03 (“RFB 24-03”) for the purchase and installation of a new chiller unit for the Central Plant Chiller No. 3 Replacement Project. On October 12, 2023, the City Clerk hosted a formal bid opening for RFB 24-03 and the following bids were received; - Los Angeles Air Conditioning, Inc. – $338,575
- A.O. Reed & Co. – $240,594
The apparent low bid received by A.O. Reed & Co. has met all of RFB No. 24-03 bid requirements and has been deemed the lowest most responsive bid received. City staff recommends the award of RFB No. 24 - 03 to A.O. Reed & Co.

RESOLUTIONS
A. Resolution No. 2023-143
B. Resolution No. 2023-143 – Exhibit “A” Public Improvement Agreement

ATTACHMENTS
A. Attachment “1” – Budget Adjustment
33 Item5.

Attachment "1"
34 Item5.

RESOLUTION NO. 2023-143

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, AUTHORIZING THE MAYOR

TO EXECUTE, ON BEHALF OF THE CITY, A PUBLIC
IMPROVEMENT AGREEMENT WITH A.O. REED & CO.,

FOR THE INSTALLATION OF THE CENTRAL PLANT
CHILLER NO. 3 REPLACEMENT PROJECT AND BUDGET

ADJUSTMENT

WHEREAS, the City’s Central Plant, constructed in 2005, provides heating, ventilation, and air conditioning (“HVAC”) functionality to the Center for the Arts and City Hall facilities through the use of four TecoChill water-cooled engine-driven chiller units; and WHEREAS, on July 5, 2023, Chiller No. 3 experienced failure and caused the shutdown of the entire Central Plant HVAC system; and
WHEREAS, on July 6, 2023, the City Manager was forced to shut down City Hall in response to the failure and high ambient temperatures; and
WHEREAS, on July 7, 2023, City staff evaluated the failure and deemed the unit to be beyond repair and the unit’s useful life. City staff awarded a Public Services Agreement to Aerco Systems, LLC, for the rental of a 200-ton chiller unit for four months to ensure the Central Plant could remain operational during warmer months; and
WHEREAS, on September 7, 2023, a notice inviting sealed bids for the replacement of the chiller unit was duly published; and
WHEREAS, on October 12, 203, two sealed bids for the project were opened and evaluated; and 35 Item5.

WHEREAS, A.O. Reed & Co. was determined to be the lowest responsive and responsible bidder; and
WHEREAS, a budget adjustment in the amount of $267,851 is requested to transfer unused CCAE deferred main tenance funds in project number 917901 to the facilities improvement project number 917301 to fully fund the project. Any funds remaining after the project is completed will be retained for future deferred maintenance projects; and
WHEREAS, the City Counci l desires at this time and deems it to be in the best public interest to authorize a Public Improvement Agreement with A.O. Reed & Co., in the amount of $240,594.

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 City Council approves the budget adjustment in the amount of $267,851 from CCAE deferred maintenance funds project number 917901 to the facility improvement project number 917301 to fully fund the project.

3. That the City Council determines the bid submitted by A.O. Reed & Co., to be the lowest most responsive bid which conformed to the City’s specifications and requirements.

4. That the City Council authorizes the Mayor to execute, on behalf of the City, a Public Improvement Agreement with A.O. Reed & Co., in 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. 36 Item5.

CITY OF ESCONDIDO

PUBLIC IMPROVEMENT AGREEMENT
This Public Improvement Agreement (“Agreement”) is made and entered into as of this ____ day of _____________________, 2023 (“Effective Date”),
Between: CITY OF ESCONDIDO
a California municipal corporation
201 N. Broadway
Escondido, CA 92025
Attn: Dominic Furio
760-839-4895
("CITY")
And: A.O. REED & CO.
a California corporation
4777 Ruffner Street
San Diego, CA 92111
Attn: Chris Cosgrove
858-565-4131
("CONTRACTOR").
(The CITY and CONTRACTOR each may be referred to herein as a “Party” and collectively as the “Parties.”)
WHEREAS, the Parties desire to enter into this Agreement for the performance of work relating to the California Center for the Arts Central Plant Chiller No. 3 Chiller Replacement Project (“Project”), occurring on property located at 400 N. Escondido Blvd., Escondido, CA 92025, and having assessor’s parcel numbers (“APN”) 760-246-15-00 (“Property”), as further described herein.

NOW, THEREFORE, in consideration of the mutual covenants, promises, terms, and conditions set forth herein, and the mutual benefits derived therefrom, the Parties hereby agree as follows:

1. Project Documents. The Notice Inviting Sealed Bids/Notice to Contractors, Instructions to Bidders, Bid Form, Designation of Subcontractors, Workers' Compensation Certificate, Change Orders, Shop Drawing Transmittals, Information Required of CONTRACTOR, Non -collusion Affidavit, Insurance Certificates, Guarantees, General Conditions, Supplementary General Conditions, Special Conditions, Plans, Drawings, Specifications, the Agreement , and all modifications, addenda, and amendments thereto (“Project Documents”) are incorporated herein by this reference as if fully set forth herein. The Project Documents are complementary, and what is called for by any one shall be as binding as if called for by all.

Resolution No. 2023-143
Exhibit "A"

Page 1 of 9 ends

37 Item5.

2. Description and Performance of Work. CONTRACTOR shall furnish all work described in Project Documents (“Work”). All Work to be performed and materials to be furnished shall be completed in a good workmanlike manner, free from defects, in strict accordanc e with the plans, drawings, specifications, and requirements set forth in the Project Documents and all provisions of this Agreement.

3. Compensation. In exchange for CONTRACTOR’s completion of the Work, the CITY shall pay, and CONTRACTOR shall accept in full, an amount not to exceed the sum of $240,594 (“Contract Price”).

CONTRACTOR shall be compensated only for performance of the Work described in this Agreement. No compensation shall be provided for any other work or services without the CITY’s prior written consent.

4. Term and Time of Performance. CONTRACTOR shall commence work within one week from the CITY's notice to proceed. CONTRACTOR shall diligently perform and complete the Work with professional quality and technical accuracy by June 30, 2025 (“Completion Date”). Extension of terms or time of performance shall be subject to the CITY’s sole discretion.

5. Time Is of the Essence. If the Work is not completed by the Completion Date, it is understood that the CITY will suffer damage. It being impractical and infeasible to determine the amount of actual damage, in accordance with Government Code section 53069.85, the Parties agree that CONTRACTOR shall pay to the CITY as fixed and li quidated damages, and not as a penalty, the sum of $250 per day for each calendar day of delay until the Work is completed and accepted (“Liquidated Damages Amount”) . Th e Liquidated Damages A mount shall be deducted from any payments due to, or that become due to, CONTRACTOR. CONTRACTOR and CONTRACTOR'S surety shall be liable for the Liquidated Damages Amount.

6. Insurance Requirements.

a. CONTRACTOR shall pro cure and maintain , at its own cost, during the entire term of this Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Work, and the results of such Work, by CONTRACTOR, its agents, representatives, employees, or subcontractors. Insurance coverage shall be at least as broad as the following:

(1) Commercial General Liability . Insurance Services Office (“ISO”) Form CG 0001 11188 covering Commercial General Liability on an “occurrence” basis, including products and completed operations, property damage, bodily injury (including emotional distress), sickness, disease, or death of any person other than the CONTRACTOR's employees , and personal and advertising injury, and damages because of injury or destruction of tangible property, including loss of use resulting there from, with limits no less than $3,000,000 combined single limit coverage per occurrence for bodily injury and property damage; or, if a general aggregate limit is applicable, either: (i) the general aggregate limit shall specifically apply to the project identified in the bid specifications or to the location of such project which is the subject of these bid specifications with coverage to be no less than $3,000,000, or (ii) the general aggregate shall be at least $3,000,000 combined single limit coverage per occurrence for bodily injury and property damage.

(2) Automobile Liability. ISO Form CA 00 01 covering any auto (Code 1), or if CONTRACTOR has no owned autos, hired (Code 8) and non -owned autos (Code 9), including damages because of bodily injury, death of a person, or property damage arising out of the ownership, maintenance, or use of a motor vehicle, all mobile equipment, and vehicles moving under CONTRACTOR’s control and engaged in the Work, with limits no less than $3,000,000 combined single limit per accident for bodily injury and property damage.

Resolution No. 2023-143
Exhibit "A"

Page 2 of 9 ends

38 Item5.

(3) Workers’ Compensation. Workers' Compensation as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease.

(4) Builder’s Risk/“All Risk” Insurance. The CONTRACTOR, during the progress of the Work and until final acceptance of the Work by CITY, shall maintain Builder's Risk/"All Risk," course-of-construction insurance satisfactory to CITY issued on a completed value basis of all WORK pursuant to this Agreement. Coverage is to provide extended coverage and insurance against vandalism, theft, malicious mischief, perils of fire, sprinkler leakage, civil authority, sonic boom, earthquake, collapse, flood, wind, lightning, smoke, riot, debris removal (including demolition), and reasonable compensation for the Engineer's services and expenses required as a result of such insured loss upon the Work, including completed Work and Work in progress to the full insurable value thereof. Such insurance shall include the CITY and the City Engineer as an additional named insured and any other person with an insurable interest designated.

(5) If CONTRACTOR ma intains broader coverage and/or higher limits than the minimums otherwise required by this Agreement, the CITY requires and shall be entitled to the broader coverage and/or the higher limits maintained by CONTRACTOR.

b. Each insurance policy required by this Agreement must be acceptable to the City Attorney and shall meet the following requirements:

(1) Compliance with General Condition Requirements. Insurance coverage shall comply with and meet all requirements set forth in Article 5.2 of General Conditions

(2) Acceptability of Insurers. Insurance coverage must be provided by an insurer authorized to conduct business in the state of California with a current A.M. Best’s rating of no less than A-:VII, or as approved by the CITY.

(3) Additional Insured Status . Both the Commercial General Liability and the Automobile Liability policies must name the CITY (including its officials, officers, agents, employees, and volunteers) specifically as an additional insured under the policy on a separate endorsement page. Th e Commercial General Liability additional insured endorsement shall be at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38, and CG 20 37 if a later edition is used. The Automobile Liability additional insured endorsement shall be at least as broad as ISO Form CA 20 01.

(4) Primary Coverage. CONTRACTOR’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the CITY, its officia ls, officers, agents, employees, and volunteers. Any insurance or self -insurance maintained by the CITY, its officials, officers, agents, employees, or volunteers shall be in excess of CONTRACTOR’s insurance and shall not contribute with it.

(5) Notice of Cancellation. Each insurance policy shall provide that coverage shall not be canceled, except with prior written notice to the CITY.

(6) Subcontractors. If applicable, CONTRACTOR shall require and verify that all subcontractors maintain insurance meeting a ll the requirements stated within this Agreement, and CONTRACTOR shall ensure that the CITY (including its officials, officers, Resolution No. 2023-143
Exhibit "A"

Page 3 of 9 ends

39 Item5.

agents, employees, and volunteers) is an additional insured on any insurance required from a subcontractor.

(7) Waiver of Subrogation. CONTRACTOR hereby grants to the CITY a waiver of any right to subrogation that any insurer of CONTRACTOR may acquire against the CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be n ecessary to affect this waiver of subrogation, but this subsection shall apply regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer. Any Workers’ Compensation policy required by this Agreement shall be endorsed with a waiver of subrogation in favor of the CITY for all work performed by the CONTRACTOR, its agents, representatives, employees and subcontractors.

(8) Self-Insurance. CONTRACTOR may, with the CITY’s prior written consent, fulfill some or all of th e insurance requirements contained in this Agreement under a plan of self - insurance. CONTRACTOR shall only be permitted to utilize such self -insurance if, in the opinion of the CITY, CONTRACTOR’s (i) net worth and (ii) reserves for payment of claims of liability against CONTRACTOR are sufficient to adequately compensate for the lack of other insurance coverage required by this Agreement. CONTRACTOR’s utilization of self- insurance shall not in any way limit the liabilities assumed by CONTRACTOR pursuant to this Agreement.

(9) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the CITY.

c. Verification of Coverage. At the time CONTRACTOR executes this Agreement, CONTRACTOR shall provide the CITY with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting the insurance coverage required by this Agreement), which shall meet all requirements under this Agreement. The CITY reserves the right to req uire complete, certified copies of all required insurance policies, including endorsements required by this Agreement, at any time.

d. Special Risks or Circumstances. The CITY reserves the right, at any point during the term of this Agreement, to modify the insurance requirements in this Agreement, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

e. No Limitation of Obligations. The insurance requirements within this Agreement, including the types and limits of insurance coverage CONTRACTOR must maintain, and any approval of such insurance by the CITY, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONTRACTOR pursuant to this Agreement, including but not limited to any provisions within this Agreement concerning indemnification.

f. Compliance. Failure to comply with any of the insurance requirements in this Agreement , including but not limited to a lapse in any required insurance coverage during the term of this Agreement, shall be a material breach of this Agreement. Compliance by CONTRACTOR with the requirement to carry insurance and furnish certificates, policies, Additional Insured Endorsement and Declarations Page evidencing the same shall not relieve the CONTRACTOR from liability assumed under any provision of this Agreement, including, without limitation, the obligation to defend and indemnify the CTY and the City Engineer. In the event that CONTRACTOR fails to comply with any insurance requirement set forth in this Agreement, in addition to any other remedies the CITY may have, the CITY may, at its sole option, (i) immediately terminate this Agreement; or (ii) order CONTRACTOR to stop Work under this Resolution No. 2023-143
Exhibit "A"

Page 4 of 9 ends

40 Item5.

Agreement and/or withhold any payment that becomes due to CONTRACTOR until CONTRACTOR demonstrates compliance with the insurance requirements in this Agreement.

7. Indemnification, Duty to Defend, and Hold Harmless.

a. CONTRACTOR (including CONTRACTOR’s agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless the CITY, its officials, officers, agents, employees, and volunteers from and against any and all claims, demands, actions, causes of action, proceedings (including but not limited to legal and administrative proceedings of any kind), suits, fines, penalties, judgments, orders, levies, costs, expenses, liabilities, losses, damages, or injuries, in law or equity, including without limitation the payment of all consequential damages and attorney’s fees and other related litigation costs and expenses (collectively, “Claims”), of every nature caused by, arising out of, or in connection with CONTRACTOR’s (including CONTRACTOR’s agents, empl oyees, and subcontractors, if any) Work pursuant to this Agreement or its failure to comply with any of its obligations contained herein, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY.

b. CONTRACTOR (including CONTRACTOR’s agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless the CITY, its officials, officers, agents, employees, and volunteers from and against any and all Claims caused by, arising under, or resulting from any violation, or claim of violation, of the San Diego Municipal Storm Water Permit (Order No.

R9-2013-0001, as amended) of the California Regional Water Quality Control Board, Region 9, San Diego, that the CITY might suffer, incur, or become subject to by reason of, or occurring as a result of, or allegedly caused by, any Work performed pursuant to this Agreement.

c. All terms and provisions within this Section 7 shall survive the termination of this Agreement.

8. Bonds.

a. CONTRACTOR shall furnish and deliver to the CITY, simultaneously with the execution of this Agreement, the following surety bonds:

(1) Faithful Performance Bond. CONTRACTOR shall furnish to the CITY a surety bond in an amount equal to the Contract Price as security for faithful performance of this Agreement.

(2) Labor and Materials Bond. CONTRACTOR shall furnish to the CITY a surety bond in an amount equal to the Contract Price as security for payment to persons performing labor and furnishing materials in connection with the Project.

b. All bonds furnished to the CITY pursuant to this Agreement shall be in the form set forth herein and approved by the City Attorney.

c. All bonds shall be executed by sureties that are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff, Bureau of Government Financial Operations, U.S. Treasury Department. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act.

d. If the surety on any bond furnished by the CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Work is located, the CONTRACTOR shall, within seven days thereafter, substitute another bond and surety, which must be acceptable to the CITY. No portion of the Work shall be performed without bonds, in a form and issued by a surety acceptable to the City. If one or more of such bonds Resolution No. 2023-143
Exhibit "A"

Page 5 of 9 ends

41 Item5.

shall, at any time, not be in full force and effect, CONTRACTOR shall imm ediately cease performance of the Work until CONTRACTOR is in full compliance with the bonding requirements of this Agreement and California law. All delays and costs incurred or resulting from such occurrence shall be to the exclusive account of CONTRACT OR. Failure of the CONTRACTOR to promptly cure any failure to have the necessary bonds in full force and effect shall be grounds for immediate termination of this Agreement.

e. All bonds shall be obtained from surety companies that are duly licensed or authorized in the State of California. Such surety companies shall also meet any additional requirements and qualifications as may be provided in the Supplementary General Conditions.

9. Substitution of Securities . This Agreement is subject to California Public Contract Code section 22300, which permits the substitution of securities for any monies withheld by the C ITY to ensure performance of this Agreement . At the request and expense of the CONTRACTOR, securities equivalent to the amount withheld shall be deposited with the CITY, or with a state - or federally- chartered bank in this state as the escrow agent, who shall then pay those moneys to CONTRACTOR. Upon satisfactory completion and acceptance of the Work, such securities shall be returned to the CONTRACTOR.

10. Contractor Default. In the event CONTRACTOR, for a period of 10 calendar days after receipt of written demand from the CITY to do so (“Cure Period”), fails to furnish tools, equipment, or labor in the necessary quantity or quality required by this Agreement, or fails to prosecute the Work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within the Cure Period, fails to continue to do so, then the CITY in its sole discretion may exclude the CONTRACTOR from the Property, or any portion thereof, and take exclusive possession of the Property or any portion thereof, together with all material and equipment thereon, and may complete the Work or any portion of the Work, either by (i) furnishing the necessary tools, equipment, labor, or materials; or (ii) letting the unfinished portion of the work, or any portion t hereof, to another contractor; or (iii) demanding the surety hire another contractor ; or (iv) any combination of such methods. The CITY’s procuring of the completion of the Work, or the portion of the Work taken over by the CITY, shall be a charge against the CONTRACTOR and may be deducted from any money due or to become due to CONTRACTOR from the CITY, or the CONTRACTOR shall pay the CITY the amount of such charge, or the portion thereof unsatisfied. The sureties provided for under this Agreement shall become liable for payment if CONTRACTOR fails to pay in full any such cost incurred by the CITY. The permissible charges for any such procurement of the completion of the Work include actual costs and fees incurred to third party individuals and entities (including but not limited to consultants, attorneys, inspectors, and designers) and actual costs incurred by the CITY for the increased dedication of time of the CITY’s employees to the Project.

11. Other Legal Requirements Incorporated. Each and every provision of law and clause required by law to be inserted in this Agreement or its attachments shall be deemed to be inserted herein, and this Agreement shall be read and enforced as though such law or clause were included herein, and if through mistake or otherwise any such provision is not inserted, or is not currently inserted, then upon application of either Party, the Agreement shall forthwith be physically amended to make such insertion or correction, without further changes to the remainder of the Agreement.

12. Merger Clause. This Agreement, together with its attachments or other documents described or incorporated herein, if any, constitutes the entire agreement and understanding of the CITY and CONTRACTOR concerning the subject of this Agreement and supersedes and replaces all prior negotiations, understandings, or proposed agreements, wri tten or oral, except as otherwise provided herein. In the event of any conflict between the provisions of this Agreement and any of its attachments or related documents, if any, the provisions of this Agreement shall prevail.

Resolution No. 2023-143
Exhibit "A"

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42 Item5.

13. Attorney’s Fees and Costs . In any action to enforce the terms and conditions of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees and costs.

14. Independent Contractor . CONTRACTOR is an independent contractor, and no agency or employment relationship is created by the execution of this Agreement.

15. Amendment. This Agreement shall not be amended except in a writing signed by the CITY and CONTRACTOR, and pursuant to action of the Escondido City Council.

16. Anti-Waiver Clause. None of the provisions of this Agreement shall be waived by the CITY because of previous failure to insist upon strict performance, nor shall any provision be waived because any other provision has been waived by the CITY, in whole or in part.

17. Severability. This Agreement shall be performed and shall be enforceable to the full extent allowed by applicable law, and the illegality, invalidity, waiver, or unenforceability of any provision of this Agreement shall not affect the legality, validity, applicability, or enforceability of the remaining provisions of this Agreement.

18. Governing Law. This Agreement and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. Venue for any action arising from this Agreement shall be conducted only in the state or federal courts of San Diego County, California.

19. Counterparts. This Agreement may be executed on separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instr ument. Delivery of an executed signature page of this Agreement by electronic means, including an attachment to an email, shall be effective as delivery of an executed original. The Agreement on file with the City is the copy of the Agreement that shall take precedence if any differences exist between or among copies or counterparts of the Agreement.

20. Provisions Cumulative . The foregoing provisions are cumulative to, in addition to, and not in limitation of any other rights or remedies available to the CITY.

21. Business License . CONTRACTOR shall obtain a City of Escondido Business License prior to execution of this Agreement and shall maintain such Business License throughout the term of this Agreement.

22. Compliance with Laws, Permits, and Licenses . CONTRACTOR shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes, codes, ordinances, regulations, rules, and other legal requirements in effect during the term of this Agreement. This shall include, but shall not be limited to, all California Labor Code laws regarding payment of prevailing wages and all OSHA regulations. CONTRACTOR shall obtain any and all permits, licenses, and other authorizations necessary to perform the work under this Agreement. Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONTRACTOR to comply with this section.

23. Prevailing Wages and Department of Industrial Relations Compliance. Pursuant to California Labor Code section 1770 et seq., CONTRACTOR agrees that a prevailing rate and scale of wages, in accordance with applicable laws, shall be paid in performing this Agreement. CONTRACTOR shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes, codes, ordinances, regulations, rules, and other legal requirements pertaining to the payment of prevailing wages, including but not limited to the keeping of certified payroll records, overtime pay, employment of apprentices, and workers' compensation coverage, as further set forth in the General Conditions.

CONTRACTOR shall file the required workers' compensation certificate before commencing work Resolution No. 2023-143
Exhibit "A"

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43 Item5.

under this Agreement . This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. CONTRACTOR shall post all job site notices required by regulation. CONTRACTOR, as well as any subcontractors, shall be registered pursuant to California Labor Code section 1725.5 to be qualified to bid on, be listed in a bid proposal (subject to the requirements of Public Contract Code section 4104), or engage in the performance of any public works contract subject to the requirements of Division 2, Part 7, Chapter 1 of the California Labor Code. Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONTRACTOR to comply with this section.

24. Immigration Reform and Control Act of 1986. CONTRACTOR shall keep itself informed of and shall comply with the Immigration Reform and Control Act of 1986 (“IRCA”). CONTRACTOR represents and warrants that all of its employees and the employees of any subcontractor retained by CONTRACTOR who perform any portion of the Work under this Agreement are and will be authorized to perform the Work in full compliance with the IRCA. CONTRACTOR affirms that as a licensed contractor and employer in the State of California, all new employees must produce proof of eligibility to work in the United States within the first three days of employment and that only employees legally eligible to work in the United States will perform the Work . CONTRACTOR agrees to c omply with the IRCA before commencing any portion of the Work, and continuously throughout the performance of the Work and the term of this Agreement.

25. Effective Date. Unless a different date is provided in this Agreement, the effective date of this Agreement shall be the latest date of execution set forth by the names of the signatories below. (SIGNATURE PAGE FOLLOWS)
Resolution No. 2023-143
Exhibit "A"

Page 8 of 9 ends

44 Item5.

IN WITNESS WHEREOF, this Agreement is executed by the Parties or their duly authorized representatives as of the Effective Date:

CITY OF ESCONDIDO

Date: __________________ ___________________________________ Dane White, Mayor

A.O. REED & CO.

Date: __________________ ___________________________________ Signature

___________________________________
Name & Title (please print)

___________________________________
Contractor's License No.

___________________________________
Tax ID/Social Security No.

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY
MICHAEL R. MCGUINNESS, City Attorney

BY: __________________________

THE CITY OF ESCONDIDO DOES NOT DISCRIMINATE AGAINST QUALIFIED PERSONS WITH DISABILITIES.

Resolution No. 2023-143
Exhibit "A"

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45 Item5.

STAFF REPORT

November 15, 2023
File Number 0600-10; A-3483

SUBJECT
BID AWARD FOR RFB NO. 24-05 LIVE RAINBOW TROUT

DEPARTMENT
Utilities

RECOMMENDATION
Request the City Council adopt Resolution No. 2023-144, authorizing the Mayor to execute, on behalf of the City, a Public Services Agreement with Jess Ranch Fish Hatchery for the purchase of Live Rainbow Trout to stock Lake Dixon and Lake Wohlford.

Staff Recommendation: Approval (Public Works Department: Joseph Goulart, Director of Public Works) Presenter: Brian Thill, Lakes and Open Space Superintendent

FISCAL ANALYSIS
The Agreement amount is an estimated annual cost based on anticipated quantities of trout needed for stocking Dixon Lake and Lake Wohlford. Agreement renewal options are contingent upon budget appropriations and satisfactory performance by the contractor.

Agreement prices are firm for the first year. Any price increase under the Agreement renewal options are not to exceed five percent of the unit price per each renewal year, subject to approval by the City.

There are sufficient funds located in the Lakes Operating Budget 40070 (Dixon Lake) and 40074 (Lake Wohlford).

PREVIOUS ACTION
On October 11, 2017, Council adopted Resolution No. 2017-132 accepting the lowest responsive bid from Calaveras Trout Farm and authorizing the execution of a Purchasing Contract (“Contract”) to purchase 58,000 pounds of live rainbow trout with the option to rene w the Contract on an annual fiscal basis not to exceed a total of seven consecutive years.

Due to unforeseen circumstances, on August 28, 2019, Calaveras Trout Farm notified the City of their inability to fulfill the terms of the Contract for the foreseeab le future. The second lowest responsive bidder, Mt. Lassen Trout, was contracted at their original bid unit price, including allowable annual contract price increases. Mt. Lassen Trout provided live rainbow trout services to Dixon Lake and Lake 46 Item6.

Wohlford through 2023. However, Mt. Lassen Trout declined to provide service for the Contract’s final consecutive annual renewal period prompting the need to bid these services.

BACKGROUND
The City operates and maintains two lakes, Dixon Lake and Lake Wohlford. These lakes offer various activities including fishing. An agreement to purchase live rainbow trout is necessary to stock fish at these lakes. Load sizes vary between 1,500 and 6,000 pounds per lake and delivery is required approximately 15 times during the fishing season, which runs November through April.

On October 4, 2023, the City published a Request for Bids No. 24 -05 (‘RFB 24-05”) for the purchase and delivery of 45,000 pounds of live rainbow trout for the 2023 -24 fiscal year with the option to renew annually for four consecutive years. On November 2, 2023, the City Clerk hosted a formal bid opening for RFB 24-05 and the following bids were received;
- Calaveras Trout Farm ………………$5.69 per pound
- Jess Ranch Fish Hatchery …………$5.40 per pound
- Mt. Lassen Trout Farms …………..$7.28 per pound
The apparent low bid received by Jess Ranch Fish Hatchery has met all of RFB 24-05 bid requirements and has been deemed the lowest most responsive bid received. City staff recommends the award of RFB 24 - 05 to Jess Ranch Fish Hatchery.

RESOLUTIONS
A. Resolution No. 2023-144
B. Resolution No. 2023-144 – Exhibit “A” Public Services Agreement

47 Item6.

RESOLUTION NO. 2023-144

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA , AUTHORIZING THE MAYOR,

TO EXECUTE, ON BEHALF OF THE CITY, A PU BLIC

SERVICES AGREEMENT TO JESS RANCH FISH HATCHERY

FOR THE PURCHASE AND DELIVERY OF LIVE RAINBOW
TROUT
WHEREAS, on October 11, 2017, Council adopted Resolution No. 2017 -132 awarding the lowest responsive bidder and authorizing the Deputy City Manager to execute a Purchasing Contract with Calaveras Trout Farm effective October 12, 2017, through June 30, 2018, with the option to renew annually not to exceed seven consecutive years; and
WHEREAS, on August 28, 2019, Calaveras Trout Farm was unable to fulfill the Purchasing Contract; and
WHEREAS, the second responsive bidder, Mt. Lassen Trout, was contracted at the original bid price to fulfill the Purchasing Contract terms through the remaining renewal option years; and WHEREAS, Mt. Lassen Trout pulled out to the Purchasing Contract for the final annual renewal year; and
WHEREAS, on October 4, 2023, t he City duly published an invitation for unit price bids for live Rainbow Trout, RFB No. 24-05; and
WHEREAS, on November 2, 2023, the City Clerk hosted a formal bid opening where three sealed bids were opened and evaluated; and
WHEREAS, Jess Ranch Fish Hatchery was determined to be the lowest responsive and responsible bidder that conformed to the City’s bid specifications and requirements; and 48 Item6.

WHEREAS, Jess Ranch Fish Hatchery has agreed to supply the City with live Rainbow Trout at their unit price bid, with allowable increases for four additional one-year terms; and WHEREAS, the Director of Public Works recommends awarding a Pu blic Services Agreement to Jess Ranch Fish Hatchery effective November 16, 2023, through June 30, 2024, in an amount not to exceed $243,000, at a per unit rate of $5.40 per pound with four one-year renewal options for the purchase of live Rainbow Trout; and
WHEREAS, sufficient funds are available in the Lakes Operating Budget 40070 (Dixon Lake) and 40074 (Lake Wohlford); and
WHEREAS, the Contract renewal options are conditional upon budget appropriations and satisfactory performance by the contractor; and
WHEREAS, price increases under the Contract renewal options are not to exceed five percent (5%) per each renewal year, subject to approval by the City; and WHEREAS, the Contract amount is an estimated annual cost based on anticipated quantities; and WHEREAS, this City Council desires at this time and deems it to be in the best public interest to accept the recomme ndations of the Director of Public Works and award the bid to Jess Ranch Fish Hatchery.

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

1. That the above recitations are true and correct.

2. That the City Council determines the bid submitted by Jess Ranch Fish Hatchery to be the lowest most responsive bid which conformed to the City’s bid specifications and requirements. 49 Item6.

3. That the City Council authorizes the bid award to Jess Ranch Hatchery for live Rainbow Trout in the estimated amount not to exceed $243,000, on a per unit basis, which may vary for renewal periods based on the City’s needs and budget appropriations.

4. That the City Council authorizes the Mayor to execute, on behalf of the City, a Public Services Agreement with Jess Ranch Fish Hatchery in 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.

50 Item6.

Public Services Agreement (v2) - 1 - CAO: 2/16/2023

CITY OF ESCONDIDO

PUBLIC SERVICES AGREEMENT
This Public Services Agreement (“Agreement”) is made and entered into as of the last signature date set forth below (“Effective Date”),
Between: CITY OF ESCONDIDO
a California municipal corporation
201 N. Broadway
Escondido, CA 92025
Attn: Brian Thill
760-839-4240
("CITY")
And: Jess Ranch Development Company
a California limited partnership
19756 Del Oro Road
Apple Valley, CA 92308
Attn: Robert Ledford
760-559-4787
("CONTRACTOR").
(The CITY and CONTRACTOR each may be referred to herein as a “Party” and collectively as the “Parties.”)
WHEREAS, the Parties desire to enter into this Agreement for the performance of the Services described herein.

NOW, THEREFORE, in consideration of the mutual covenants, promises, terms, and conditions set forth herein, and the mutual benefits derived therefrom, the Parties hereby agree as follows:

1. Description of Services. CONTRACTOR shall furnish all of the Services described in the Scope of Work, which is attached to this Agreement as Attachment “A” and incorporated herein by this reference (“Services”).

2. Compensation. In exchange for CONTRACTOR’s completion of the Services, the CITY shall pay, and CONTRACTOR shall accept in full, an amount not to exceed per unit price of $5.40 per pound and the sum of the contract shall not exceed $243,000. CONTRACTOR shall be compensated only for performance of the Services described in this Agreement. No compensation shall be provided for any other work or services without the CITY’s prior written consent. If this Agreement is amended at any time, additional compensation of CONTRACTOR contained in any subsequent amendments shall not exceed a cumulative total of 25% of the maximum payment provided for in this Section 2, Resolution No. 2023-144
Exhibit "A"

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51 Item6.

Public Services Agreement (v2) - 2 - CAO: 2/16/2023
unless approved by resolution of the City Council.

3. Performance. CONTRACTOR shall faithfully perform the Services in a proficient manner, to the satisfaction of the CITY, and in accord with the terms of this Agreement. CONTRACTOR shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all reports and other information furnished by CONTRACTOR pursuant to this Agreement, except that CONTRACTOR shall not be responsible for the accuracy of information supplied by the CITY.

4. Termination. The Parties may mutually terminate this Agreement through a writing signed by both Parties. The CITY may terminate this Agreement for any reason upon providing CONTRACTOR with 10 days’ advance written notice. CONTRACTOR agrees to cease all work under this Agreement on or before the effective date of any notice of termination. If the CITY terminates this Agreement due to no fault or failure of performance by CONTRACTOR, then CONTRACTOR shall be compensated based on the work satisfactorily performed at the time of such termination. In no event shall CONTRACTOR be entitled to receive more than the amount that would be paid to CONTRACTOR for the full performance of the Services.

5. City Property. All original documents, drawings, electronic media, and other materials prepared by CONTRACTOR pursuant to this Agreement immediately become the exclusive property of the CITY, and shall not be used by CONTRACTOR for any other purpose without the CITY’s prior written consent.

6. Insurance Requirements.
a. CONTRACTOR shall pro cure and maintain , at its own cost, during the entire term of this Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Services, and the results of such work, by CONTRACTOR, its agents, representatives, employees, or subcontractors. Insurance coverage shall be at least as broad as the following:
(1) Commercial General Liability. Insurance Services Office (“ISO”) Form CG 00 01 covering Commercial General Liability on an “occurrence” basis, including products and completed operations, property damage, b odily injury, and personal & advertising injury, with limits no less than $2,000,000 per occurrence and $4,000,000 general aggregate. (2) Automobile Liability. ISO Form CA 00 01 covering any auto (Code 1), or if CONTRACTOR has no owned autos, hired (Code 8) and non -owned autos (Code 9), with limit s no less than $1,000,000 per accident for bodily injury and property damage, unless waived by the CITY and approved in writing by the CITY’s Risk and Safety Division. (3) Workers’ Compensation. Worker's Compensation as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit s of no less than $1,000,000 per accident for bodily injury or disease.
(4) If CONTRACTOR maintains broader coverage and/ or higher limits than the minimums otherwise required by this Agreement , the CITY requires and shall be entit led to the broader coverage and/or the higher limits maintained by CONTRACTOR. b. Each insurance policy required by this Agreement must be acceptable to the City Attorney and shall meet the following requirements:
(1) Acceptability of Insurers. Insurance coverage must be provided by an insurer authorized to conduct business in the state of California with a current A.M. Best’s rating of no less than A-: FSC VII, or as approved by the CITY.
(2) Additional Insured Status . Both the Commercial General Liability and the Automobile Liability policies must name the CITY (including its officials, officers, agents, employees, and volunteers) specifically as an additional insured under the policy on a separate endorsement page. The Commercial General Liability additional insured endorsement Resolution No. 2023-144
Exhibit "A"

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52 Item6.

Public Services Agreement (v2) - 3 - CAO: 2/16/2023
shall be at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38, and CG 20 37 if a later edition is used. The Automobil e Liability endorsement shall be at least as broad as ISO Form CA 20 01.
(3) Primary Coverage. CONTRACTOR’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the CITY, its officials, officers, agents, employees, and volunteers. Any insuran ce or self -insurance maintained by the CITY, its officials, officers, agents, employees, or volunteers shall be in excess of CONTRACTOR’s insurance and shall not contribute with it. (4) Notice of Cancellation . Each insurance policy shall provide that coverage shall not be canceled, except with prior written notice to the CITY. (5) Subcontractors. If applicable, CONTRACTOR shall require and verify that all subcontractors maintain insurance meeting all the requirements stated in this Agreement, and CONTRACTOR shal l ensure that the CITY (including its officials, officers, agents, employees, and volunteers) is an additional insured on any insurance required from a subcontractor.
(6) Waiver of Subrogation. CONTRACTOR hereby grants to the CITY a waiver of any right to subrogation that any insurer of CONTRACTOR may acquire against the CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be nec essary to affect this waiver of subrogation, but this subsection shall apply regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer. Any Workers’ Compensation policy required by this Agreement shall be endorsed with a waiver of subrogation in favor of the CITY for all work performed by the CONTRACTOR, its agents, representatives, employees and subcontractors.
(7) Self-Insurance. CONTRACTOR may, with the CITY’s prior written consent, fulfill some or all of the i nsurance requirements contained in this Agreement under a plan of self - insurance. CONTRACTOR shall only be permitted to utilize such self -insurance if, in the opinion of the CITY, CONTRACTOR’s (i) net worth and (ii) reserves for payment of claims of liability against CONTRACTOR are sufficient to adequately compensate for the lack of other insurance coverage required by this Agreement. CONTRACTOR’s utilization of self- insurance shall not in any way limit the liabilities assumed by CONTRACTOR pursuant to this Agreement.
(8) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the CITY.
c. Verification of Coverage. At the time CONTRACTOR executes this Agreement, CONTRACTOR shall provide the CITY with original Certificates of Insu rance including all required amendatory endorsements (or copies of the applicable policy language effecting the insurance coverage required by this Agreement), which shall meet all requirements under this Agreement. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this Agreement, at any time. d. Special Risks or Circumstances. The CITY reserves the right , at any point during the term of this Agreement, to modify the insurance requirements in this Agreement, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. e. No Limitation of Obligations. The insurance requirements in this Agreement, including the types and limits of insurance coverage CONTRACTOR must maintain, and any approval of such insurance by the CITY, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONTRACTOR pursuant to this Agreement, including but not limited to any provisions in this Agreement concerning indemnification. f. Failure to comply with any of the insurance requirements in this Agreement, including but not limited to a lapse in any required insurance coverage during the term of this Agreement, shall Resolution No. 2023-144
Exhibit "A"

Page 3 of 7 ends

53 Item6.

Public Services Agreement (v2) - 4 - CAO: 2/16/2023
be a material breach of this Agreement . In the event that CONTRACTOR fails to comply with any such insurance requirements in this Agreement, in addition to any other remedies the CITY may have, the CITY may, at its sole option, (i) immediately terminate this Agreement; or (ii) order CONTRACTOR to stop work under this Agreement and/or withhold any payment that becomes due to CONTRACTOR until CONTRACTOR demonstrates compliance with the insurance requirements in this Agreement.

7. Indemnification, Duty to Defend, and Hold Harmless.
a. CONTRACTOR (including CONTRACTOR’s agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless the CITY, its officials, officers, agents, employees, and volunteers from and against any and all claims, demands, actions, causes of action, proceedings (including but not limited to legal and administrative proceedings of any kind), suits, fines, penalties, judgments, orders, levies, costs, expenses, liabilities, losses, damages, or injuries, in law or equity, including without limitation the payment of all consequential damages and attorney’s fees and other related l itigation costs and expenses (collectively, “Claims”), of every nature caused by, arising out of, or in connection with CONTRACTOR’s performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except where caused by the sole negligence or willful misconduct of the CITY. b. CONTRACTOR (including CONTRACTOR’s agents, employees, and subcontractors, if any) shall defend, indemnify, and hold harmless the CITY, its officials, officers, agents, employees, and volunteers from and against any and all Claims caused by, arising under, or resulting from any violation, or claim of violation, of the San Diego Municipal Storm Water Permit (Order No.

8. Anti-Assignment Clause. Because the CITY has relied on the particular skills of CONTRACTOR in entering into this Agreement, CONTRACTOR shall not assign, delegate, subcontract, or otherwise transfer any duty or right under this Agreement, including as to any portion of the Services, without the CITY’s prior written consent. Any purported assignment, delegation, subcontract, or other transfer made without the CITY’s consent shall be void and ineffective. Unless CONTRA CTOR assigns this entire Agreement, including all rights and duties herein, to a third party with the CITY’s prior written consent, CONTRACTOR shall be the sole payee under this Agreement. Any and all payments made pursuant to the terms of this Agreement are otherwise not assignable.

9. Attorney's Fees and Costs. In any action to enforce the terms and conditions of this Ag reement, the prevailing Party shall be entitled to reasonable attorney’s fees and costs.

10. Independent Contractor . CONTRACTOR is an indepe ndent contractor , and no agency or employment relationship is created by the execution of this Agreement.

11. Amendment. This Agreement shall not be amended except in a writing signed by the CITY and CONTRACTOR.

12. Merger Clause. This Agreement, together with its attachments or other documents described or incorporated herein, if any, constitutes the entire agreement and understanding of the CITY and CONTRACTOR concerning the subject of this A greement and supersedes and replaces all prior negotiations, understandings, or proposed agreements, written or oral, except as otherwise provided herein. In the event of any conflict between the provisions of this Agreement and any of its attachments or related documents, if any, the provisions of this Agreement shall prevail.

Resolution No. 2023-144
Exhibit "A"

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54 Item6.

Public Services Agreement (v2) - 5 - CAO: 2/16/2023

13. Anti-Waiver Clause. None of the provisions of this Agreement shall be waived by the CITY because of previous failure to insist upon strict performance, nor shall any provision be waived because any other provision has been waived by the CITY, in whole or in part.

14. Severability. This Agreement shall be performed and shall be enforceable to the full extent allowed by applicable law , and the illegality, invalidity, waiver, or unenforceability of any provision of this Agreement shall not affect the legality, validity, applicability, or enforceability of the remaining provisions of this Agreement.

15. Governing Law. This Agreement and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. Venue for any action arising from this Agreement shall be conducted only in the state or federal courts of San Diego County, California.

16. Counterparts. This Agreement may be executed on separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by electronic means, including an attachment to an email, shall be effective as delivery of an executed original. The Agreement on file with the City is the copy of the Agreement that shall take precedence if any differences exist between or among copies or counterparts of the Agreement.

17. Provisions Cumulative . The foregoing provisions are cumulative to, in addition to , and not in limitation of any other rights or remedies available to the CITY.

18. Notice. Any statements, communications , or notices to be provid ed pursuant to this Agreement shall be sent to the attention of the persons indicated herein, and the CITY and CONTRACTOR shall promptly provide the other Party with notice of any changes to such contact information.

19. Business License. CONTRACTOR shall obtain a City of Escondido Business License prior to execution of this Agreement and shall maintain such Business License throughout the term of this Agreement.

20. Compliance with Laws, Permits, and Licenses. CONTRACTOR shall keep itself info rmed of and comply with all applicable federal, state, and local laws, statutes, codes, ordinances , regulations, rules, and other legal requirements in effect during the term of this A greement. CONTRACTOR shall obtain any and all permits, licenses, and other authorizations necessary to perform the Services. Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONTRA CTOR to comply with this section.

21. Prevailing Wages . If applicable, pursuant to California Labor Code section 1770 et seq. , CONTRACTOR agrees that a prevailing rate and scale of wages, in accordance with applicable laws, shall be paid in performing this Agreement. CONTRACTOR shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes , codes, ordinances, regulations, rules, and other legal requirements pertaining to the payment of prevailing wages. The preva iling rate and scale to be paid shall be the same as the applicable “General Prevailing Wage Determination” approved by the Department of Industrial Relations as of the Effective Date of this Agreement, which are available online at http://www.dir.ca.gov/oprl/dprewagedetermination.htm and incorporated into this Agreement by this reference . Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONTRACTOR to comply with this section.

22. Immigration Reform and Control Act of 1986. CONTRACTOR shall keep itself informed of and shall comply with the Immigration Reform and Control Act of 1986 (“IRCA”). CONTRACTOR represents and warrants that all of its employees and the employees of any subcontractor retained by CONTRACTOR who perform any of the Services under this Agreement, are and will be authorized to perform the Services in full compliance with the IRCA. CONTRACTOR affirms that Resolution No. 2023-144
Exhibit "A"

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55 Item6.

Public Services Agreement (v2) - 6 - CAO: 2/16/2023
as a licensed contractor and employer in the State of California, all new employees must produce proof of eligibility to work in the United States within the first three days of employment and that only employees legally eligible to work in the United States will perform the Services. CONTRACTOR agrees to comply with the IRCA before commencing any Services, and continuously throughout the performance of the Services and the term of this Agreement.

23. Effective Date. Unless a different date is provided in this Agreement, the effective date of this Agreement shall be the latest date of execution set forth by the names of the signatories below.

IN WITNESS WHEREOF, th is Agreement is executed by the Parties or their duly authorized representatives as of the Effective Date:

CITY OF ESCONDIDO

Date: __________________ ___________________________________ Dane White, Mayor

JESS RANCH DEVELOPMENT COMPANY

Date: __________________ ___________________________________ Signature

___________________________________
Name & Title (please print)

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY
MICHAEL R. MCGUINNESS, CITY ATTORNEY

BY: __________________________

THE CITY OF ESCONDIDO DOES NOT DISCRIMINATE AGAINST QUALIFIED PERSONS WITH DISABILITIES.

Resolution No. 2023-144
Exhibit "A"

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56 Item6.

Public Services Agreement (v2) - 7 - CAO: 2/16/2023
ATTACHMENT “A”
Scope of Work

A. General

Jess Ranch Development Company., a California limited partnership (“Contractor”) will provide the City of Escondido, a California municipal corporation (“City”) with rainbow trout stocking services.

B. Location

Contractor will provide services at the following City facilities:

Dixon Lake, 1700 La Honda Dr., Escondido, CA 92027; and Lake Wohlford, 25453 Lake Wohlford Rd., Escondido, CA 92027

C. Services

Services shall include per advertised RFB:

1. Freight and delivery of 45,000 pounds of live rainbow trout to above listed City facilities.

D. Scheduling

Contractor to schedule specific dates of work in advance by contacting Brian Thill at 760 -839- 4240 or [email protected]. Work shall be performed in -between the hours of 7 a.m. and 4:30 p.m., Monday through Friday. Further instructions will be provided upon scheduling.

E. Contract Price and Payment Terms

The per-unit price shall be $5.40 per pound and shall not exceed $243,000. The contract price includes all labor, materials, equipment, and transportation required to perform the work.

Services will be billed as ser vices are performed. Payment will be made after services have been performed and within 30 days of receipt of an invoice for those services

F. Term

The term of this Agreement shall be from the Effective Date of the Agreement through June 30, 2024 with the option to renew the contract for four additional one-year terms.

Resolution No. 2023-144
Exhibit "A"

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57 Item6.

STAFF REPORT

November 15, 2023
File Number 0600-10; A3484

SUBJECT
APPROVE CONSULTING SERVICES AGREEMENT WITH HR GREEN PACIFIC, INC. FOR ON CALL

ENGINEERING SERVICES

DEPARTMENT
Development Services

RECOMMENDATION
Request that the City Council adopt Resolution 2023-141 authorizing the Mayor to execute, on behalf of the City, a consulting services agreement with HR Green Pacific Inc., for on call engineering services for the SiFi FiberCity project.

Staff Recommendation: Approval ( Chris McKinney , Deputy City Manager and Julie Procopio, City Engineer)
Presenter: Julie Procopio, City Engineer

FISCAL ANALYSIS
All costs associated with plan review and inspection of the FiberCity project are paid for by SIFI in accordance with the Right of Way Encr oachment Agreement (Attachment “1”). The De veloper Deposit Account Agreement requires that in advance of plan review, SiFi will deposit funding for six -months of projected project costs and will maintain deposit funding adequate for three months of projected City project costs.

PREVIOUS ACTION
On September 28, 2022 , the City Council adopted Resolution 2022 -143 authorizing a Right of Way Encroachment Agreement (“Agreement”) with SiFi Networks for the FiberCity project.

BACKGROUND
SiFi Networks is a privately -owned telecom company that funds, builds, and operates open access fiber networks across the United States. In September 2022, the City Council approved an Agreement with SiFi to install fiber along every public street at no cost to the City. SiFi will own and operate all equipment within its system and partner with various Internet Service Providers (“ISPs”) that provide the point of connection between SiFi's backbone system and each individual premises. 58 Item7.

The provision of a citywide fiber network w ill complement the City's economic development efforts as many businesses rely on high-speed internet service to remain competitive. This network will also ensure that our residents hav e access to reliable high -speed internet service with opportunities to provide low cost access to economically disadvantaged households.

A request for qualifications for on call services was issued on April 6, 2023. Eight firms submitted statements of qua lifications to assist planning and engineering staff with plan review and inspection services. The top three ranked engineering firms were asked to provide resumes for staff members with experience directly related to fiber optic project support. HR Green Pacific was selected as the most qualified firm to assist with the SiFi project due to their extensive experience assisting other Cities with similar projects. Comparing similar job classifications, the cost for experienced/senior-level review staff ranged from $170-$190 per hour and HR Green’s proposal fell within this range at $180 per hour. The blended hourly rate of the top two proposals, including management and support services we re similar at roughly $194/hour.

Staff recommends that the City Council authorize a Consulting Services Agreement with HR Green Pacific, Inc. for plan review (Phase I) in the amount of $683,980. Staff further recommends that Phase II services be authorized in the amount of $927,045 to provide one full time inspector during the estimated three - year duration of the project. The cost of phase I and phase II services totaling $1,611,026 would be paid for by SiFi in accordance with the Right of Way Encroachment Agreement.

ATTACHMENTS
a. Attachment “1” – Right of Way Encroachment Agreement with SiFi Networks b. Attachment “2” – Budget Adjustment

RESOLUTIONS
a. Resolution No. 2023-141
b. Resolution No. 2023-141 Exhibit “A” – Consulting Agreement with HR Green Pacific Inc.

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Attachment "1"
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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.

Attachment "1"
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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.

Attachment "1"
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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, Attachment "1"
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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 Attachment "1"
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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 Attachment "1"
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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 Attachment "1"
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Agreement, the City will provide final approval and issue any necessary appr oval or permits to SiFi and/or its contractors. In accordance with applicable City policies and procedures, permits shall be issued by Work Zone; however, SiFi shall be allowed to submit permits for and construct multiple Work Zones simultaneously, subject to the City Engineer’s approval, which shall not be unreasonably withheld, delayed or conditioned.

The engineering details provided in Exhibit A are the typical details that may or may not change during the final engineering design process.

Nothing herein shall be construed as a promise, warranty, or guarantee of approval of any permit, license, or other land use approval which may be required.

SiFi is responsible for obtaining all other Agency or Public Utility permits or rights-of-entry permits outside of the purview of the City. Neither Party shall be held liable for delays caused by other agencies’ or parties’ permitting requirements.

2.6 Processing Fees. Prior to the submittal of the first permit application by SiFi, and pursuant to City policy and standards, the City and SiFi will enter into an agreement to establish a Developer Deposit Account (“DDA”) to cover the cost of plan review, inspection, staff time, construction management, and the cost of efficient and timely water and wastewater utility markings by the City within, but no later than, three (3) business days from SiFi’s request for such markings. The City will notify SiFi in writing to replenish the DDA once the account reaches the threshold specified in the agreement. The initial deposit for the DDA will be set forth in the agreement at the time of signing.

2.7 Fees, Expenses and other Charges. Except as expressly set forth herein, each Party shall bear and be responsible for all of its own costs, fees and expenses incurred in executing and performing this Agreement. The City agrees that City bonding and insurance requirements may be satisfied by bonds and insurance coverage provided as part of the encroachment permit application and supplied by the Construction Contractor (as principal) performing the construction of the System. Such bonds and insurance documentation to be supplied prior to the start of Construction. Notwithstanding anything to the contrary contained in this Agreement, t he provisions of this Section 2.7 will survive expiration or termination of this Agreement.

2.8 Use Agreement. Within six months of the Effective Date, the Parties agree to commence negotiations in good faith regarding terms for the City’s use of the System for governmental internal data communication and non-retail purposes at rates substantially less than current market rates.

SECTION 3

3. The System.

3.1 System Description. SiFi will install the System within the Boundary using the Public Way and shall use good faith efforts in order to install the System in unincorporated San Diego County areas located within the Boundary. As part of the System, SiFi will deploy a 10Gbps XGSPON fiber optic cable network, throughout the Boundary. It shall begin from the Shelter to the applicable Cabinet in the Public Way and then connect to the private Premises Wall for each applicable Primary Premise. Service providers connecting the System will be able to set Attachment "1"
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symmetrical baseline internet speeds of up to ten (10) Gbps to retail subscribers. The City acknowledges and agrees that SiFi has the right to install the System within the Boundary using the Public Way in order to make the delivery of Service over the System available to all Primary Premises within the Boundary, subject to the terms and conditions of this Agreement. The Parties acknowledge and agree that there is no agreed design or configuration of the actual location of the System within the Public Way at this time and that SiFi shall submit such designs specification, plan and associated details to the City for approval when ready. The City will work with SiFi to approve the physical location of the fiber optic cable and other equipment and components of the System in, on, over, under, upon, across, or along the Public Way and from the Public Way to the Premises Wall.

3.2 Certain Permit Rights and Obligations. SiFi is deemed to have approval to locate the System within the Boundary, subject to applicable permits including but not limited to encroachment, licenses, or other forms of plan review and approval or authorization necessary to construct, install, operate, maintain, replace, reconstruct, or repair the System, or any part thereof, during the term of this Agreement and any extensions. Construction and installation of the System shall be performed in a safe manner using materials of good quality. City will not issue additional permits if SiFi remains in an uncured material breach of this Agreement. Unless approved by City Engineer, all permits shall provide for and allow SiFi and its contractors operational hours as described in Section 3.3 below. SiFi will adhere to all City building code and other applicable City requirements; provided, however in the event of an inconsistency or conflict between the permission granted to SiFi pursuant to this Agreement and a City building code provision, the City building code provision will be interpreted in a manner that supports the objectives and intent of this Agreement.

3.3 Working Hours. City agrees SiFi's contractors working hours are Monday through Friday from 7:00 AM to 5:00 PM on residential streets; provided that, work will be performed as specified below:
• 7AM - 9AM Toolbox talks / Prep / Move to site, etc.
• 9AM - 3PM Microtrenching / Reinstatement/Handholes / Laterals, etc. • 3PM - 5PM Site clean-up, etc.
• 5PM off-site. All material stockpiles, equipment, and contractor equipment to be completely removed from the public right-of-way by 5 p.m. • Arterial streets work hours are limited from 9AM to 3PM. • Work within 1,000 feet of a School Zone subject to review and approval of City Engineer.
• Work on Saturdays and City Holidays requires City pre-approval and if approved may be allowed between the hours of 9 AM to 3PM to perform punch list repairs and other clean-up activities only.

Attachment "1"
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SECTION 4

4. Construction and Facilities.

4.1 The City acknowledges that SiFi and its contractors intend to use varying construction techniques for the System Construction and deployment, which may include any of the following, and which shall comply with the City’s Excavation and Right-of-Way Encroachment Policy:
(i) traditional open trench and/or directional boring;
(ii) slot cut Microtrenching as set forth in the specifications set forth in Exhibit A to this Agreement;
(iii) the use of a ground penetration radar system as the primary method for identifying underground utilities prior to any Microtrenching; (iv) techniques ancillary or related to the foregoing.

Subject to review of each Work Zone permit, or sub-permits as may be required, the City hereby approves each of the above referenced construction methods and the specifications in Exhibit A and agrees to work cooperatively with SiFi in reviewing all other potential construction methods and System locations in the event of conflict with the City’s Excavation and Right-of-Way Encroachment Policy.

4.2 Location of Equipment/Facilities.

4.2.1 Facilities. During the Term, the City shall provide SiFi, as needed, with access to and use of the Facilities for the installation and operation of up to three (3) SiFi’s Shelters (enclosed area of approximately one thousand (1,000) square feet per location for each Shelter) subject to a separate lease, easement or another suitable agreement to be negotiated in good faith between the parties including payment by SiFi of fair market value for the use and occupancy of each such Shelter Facility on City-owned land.

4.2.2 Shelters and Cabinets Locations. SiFi will identify and provide to the City a selection of suitable sites, which the City and SiFi agree to cooperatively review. However, City has sole and absolute but reasonable discretion to reject a proposed location; provided that, the City will use reasonable efforts to offer suitable alternative locations. SiFi agrees to provide engineering designs including intended locations of the Shelters and Cabinets required for the System to the City prior to Construction in accordance with City's permitting process.

SECTION 5

5. Oversight and Regulation by City.

5.1 Oversight of Construction. In accordance with applicable law, the City shall have the right to oversee, inspect and approve the Construction of the System in the Public Way.

Attachment "1"
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5.2 Compliance with Applicable Laws and Orders. SiFi shall, at all times during the Term, be subject to and comply in all material respects with all applicable federal, state and local laws and orders from government agencies and courts of competent jurisdiction.

SECTION 6

6. Insurance.

6.1 SiFi and its contractor s shall procure and maintain from the date of start of Construction for the duration of the term of the Agreement, appropriate insurance for the services SiFi or its contractor performs, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the SiFi, its agents, representatives, employees, or subcontractors.

6.2 Minimum Scope and Limit of Coverage . Coverage shall be at least as broad as:

A. Commercial General Liability (CGL) : Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. Coverage shall include blanket contractual liability and broad form property damage, premises, operations, explosion, collapse, underground hazard (commonly referred to as “X”, “C” and “U” coverages B. Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $ 1,000,000 per accident for bodily injury and property damage.

C. Workers’ Compensation: W orkers Compensation insurance as required by the State, with Statutory Limits, and Employers’ Liability insurance with a limit of no t less than $1,000,000 per accident for bodily injury or disease.

D. Excess Liability Insurance . In an amount not less than Five Million Dollars ($5,000,000.00) applying in excess over all limits and coverages noted in paragraphs A, B and C above.

E. Professional Liability. Professional Liability with limits not less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.

Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract work.

F. Pollution: Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. If the services involve lead-based paint or asbestos identification/remediation, the Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, t he Contractors Attachment "1"
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Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

If the Contractor or SiFi maintains broader coverage and/or higher limits than the minimums shown above for all policies in paragraphs A through F inclusive, above , the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor or SiFi. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City to the extent necessary to cover any actual damages suffered by the City.

6.3 Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. At the option of the City, SiFi shall cause the insurer to reduce or eliminate such self -insured retentions as respects the City, its officers, officials, employees, and volunteers; or SiFi shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.

6.4 Other Insurance Provisions:

A. Additional Insured . The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of SiFi including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of SiFi. General liability coverage can be provided in the form of an endorsement to the SiFi’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).

B. Primary Insurance. For any claims related to this project, SiFi’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self - insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the SiFi’s insurance and shall not contribute with it.

C. Notice of Cancellation. SiFi shall provide prompt written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self -insured retention is increas ed. In the event of any cancellation or reduction in coverage or limits of any insurance, SiFi shall forthwith obtain and submit proof of substitute insurance.

D. Builder’s Risk (Course of Construction) Insurance . SiFi may, if requested by the City, submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.

If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes , machinery , and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, Attachment "1"
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machinery, or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

E. Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.

F. Waiver of Subrogation. SiFi hereby agrees to waive rights of subrogation which any insurer of SiFi may acquire from Contractor by virtue of the payment of any loss.

Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. However, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.

G. Verification of Coverage . SiFi shall furnish , upon request, the City with Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before the date of the start of Construction. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.

H. Contractor/Subcontractors. SiFi shall require that the Contractor and all subcontractors maintain insurance meeting all requirements stated herein, as applicable to the scope of their respective services, and SiFi shall require the Contractor and all the subcontractors to list City as an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

I. Special Risks or Circumstances . City reserves the right to modify , at any time, these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.

J. Maintenance Obligation. From the C ommencement of Construction and throughout the Term of this Agreement, SiFi, and its successors and assigns, shall be obligated to maintain and restore the condition of the Public Way directly impacted by the Construction of the System and such obligation shall be supported by cash in escrow, subject to a mutually agreed escrow agreement, in an aggregate annual amount of not less than one million dollars ($1,000,000.00) and following Substantial Completion as determined by the Cit y, SiFi shall maintain a cash account managed by the City of not less than fifty thousand dollars ($50,000) , which shall be subject to said escrow agreement or subject to a separate escrow agreement, as the case may be. SiFi may replace the initial one m illion dollars ($1,000,000) cash in escrow with either: (i) a maintenance bond in accordance with the City’s bonding requirements, or (ii) an irrevocable letter of credit from a financial institution approved by the City.

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SECTION 7

7. Parties' Obligations.

7.1 Obligations of the City. In addition to all other duties and obligations contained elsewhere in this Agreement, City has the following duties and obligations:
(i) Provide a single point of contact (“SPOC”) for SiFi, which SPOC will be responsible to address all issues related to the System, providing coordination with and act as a liaison to City departments, and serving as a communication and troubleshooting resource for SiFi.
(ii) To the extent feasible, offer the full cooperation of all City departments with respect to relevant issues with respect to the System. Such cooperation will be supervised by the SPOC.
(iii) Participate in regular status meetings for the coordination of all matters related to the System.
(iv) Provide efficient and diligent, as specified in Section 2.5, good faith review of all applications for permits submitted by SiFi or its representatives or contractors, including permits or other necessary items for construction work on the System within the Public Way.
(v) In the event emergency repairs by the City or its contractors in the Public Way are necessary, coordinate the repairs with SiFi, any utilities or other users of the Public Way, in order to facilitate prompt repairs, such coordination to be supervised by the SPOC and the SPOC shall keep SiFi continually apprised of the status of such repairs. (vi) Except in case of emergency, City will provide SiFi with a least thirty (30) days advance notice of any work in the Public Way that requires the relocation of the System.

In addition, where feasible, the City will provide SiFi with an opportunity to access the System at the time of the excavation in the Public Way by others. (vii) City shall and shall require its contractors to exercise reasonable care when performing work in the Public Way to protect SiFi’s System, and City shall be liable to SiFi for any damages to the System resulting from City’s or its contractors’ negligence or willful misconduct; provided, however, that City shall have no liability for damages resulting from inaccuracies in the as-built drawings provided by SiFi pursuant to Section 7.2(iv). (viii) City agrees that SiFi shall have the right , subject to the terms and conditions herein, to construct and maintain the System on recently resurfaced public streets. (ix) City hereby agrees that access to and from the FAB and/or or Toby Box to extend the Drop to a Premise does not require permits from the City.

7.2 Obligations of SiFi. In addition to all other duties and obligations contained elsewhere in this Agreement, SiFi has the following duties and obligations:

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(i) Work closely with the SPOC of the City and relevant City departments with respect to the construction of the System. (ii) Comply with all requirements of City for permit and Public Way use applications, to the extent they may be required.
(iii) Maintain or provide for the maintenance of the System. (iv) To comply with all state, federal and local laws relating to economic sanctions in response to Russia’s actions in Ukraine including , but not limited to , California Governor Gavin Newsom’s Executive Order (EO) N-6-22 and the U.S Department of Treasury sanctions referenced therein.
(v) Provide to the City the following, upon its prior written req uest but no more on an annual basis, unless specifically identified below, the following:
(a) All initial drawings as GIS data files (as defined in the City of Escondido GIS Data Standard) along with a Project Report (as defined in Section 4.5 of the City of Escondido GIS Project Requirements);
(b) Weekly/monthly/quarterly updated GIS data files, along with an updated Project Report as defined in Section 4.5 of the City of Escondido GIS Project Requirements);
(c) “Redline” drawings (as defined in Section 4.5 of the City of Escondido GIS Project Requirements) of other City assets that are different to an approved permit;
(d) Email and phone support for GIS data transfer efforts, redline asset edit advisories, and the QAQC of GIS data (as defined in Section 3.2 of the City of Escondido GIS Project Requirements); and
(e) Reimbursement via the DDA referenced in paragraph 2.6 for GIS data transfer costs, including the temporary hiring of a GIS Technician to process the incoming GIS data, if required;
(vi) SiFi and its contractors shall register with the State’s safe excavation notification system.
(vii) When work to be performed by the City or its contractors is reasonably required to be within two inches (2”) radius from the SiFi System in accordance with industry standards (“Conflict”), City shall provide SiFi with not less than sixty (60) days written notice of such Conflict, except in case of emergency, and City shall provide all reasonable accommodations including excavating to the SiFi impacted facilities as reasonably requested by SiFi to allow and facilitate coordination with the City contractor in order for SiFi to protect, or to temporarily or permanently relocate the impacted portion of the System; provided that, SiFi shall bear the direct reasonable cost for additional delays or costs incurred by the City for such Conflict work, and City will not be liable to SiFi for any resulting damages to the System.

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If, after its receipt of a Conflict relocation notice per the preceding paragraph, SiFi fails or refuses to relocate, within the time period identified in such notice, its facilities located in, on, upon, along, under, over, across or above any Public Way or to pave, surface, grade, repave, resurface or regrade as required, pursuant to any provision of the Agreement, the City or other public entity may cause the work to be done and will keep an itemized account of the entire cost thereof, and SiFi shall hold harmless the City, its officers and employees from any liability, claims or damages which may arise or be claimed to arise from the moving, cutting, or alteration of any of SiFi’s facilities, or the turning on or off of water, oil, or other liquid, gas, or electricity. In addition, SiFi agrees to, and shall, reimburse the City for such cost within forty -five (45) days after presentation to SiFi of an itemized account of such costs. (viii) SiFi shall be solely responsible for all repairs, maintenance, and adjustments to the System; provided that City will require its contractors and agents to indemnity SiFi, as a third party, for any damages to the System, Improvements and Facilities caused by City contractors or its agents.
(ix) SiFi and/or SiFi’s contractors will provide the following response times in connection with repairs based upon one of the following categories:
(1) Non-life-threatening Emergency Response (“NON-LTER”) (a) Description: Curb and gutter projects, and utility
(including telecomm unications) projects requiring relocation, repair, or replacement that are impacted by the SiFi System and/or may impact the SiFi System, provided that any such NON-LTER repair is subject to the then current California Dig Safe laws and regulations, and al l other applicable laws and regulations.
(b) SiFi response time: On-site within five (5) days.
(2) Life Threatening Emergency Response (“LTER”)
(a) Description: Break or hit in the main gas, main
electric, main water, or main sewer or storm line in the Public Way that has an immediate and direct impact to the traveling safety of the public in or around the Public Way, and wherein the City’s ability to implement repairs is impacted by the SiFi System and/or City repairs may impact the SiFi System.
(b) SiFi contractor’s response time: On -site within
twenty-four (24) hours.
(x) Prior to the date of start of Construction, SiFi shall provide the name and contact information of a representative whose responsibility shall be to field public inquiries or complaints relative to system Construction. This person’s contact information shall be included on any Construction notifications disseminated to the public. The person shall be available to answer public inquiries during SiFi’s contractor’s working hours. SiFi shall inform the City of changes to the designated contact person within five business days of such change.

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(xi) SiFi, through its FiberCity® Aid Program, will pro vide internet service providers (“ISPs”) providing services over the System with a reduced wholesale rate to encourage and enable such ISPs, subject to ISPs participation, to provide low-cost gigabit internet service to a number of qualified low -income sub scribers, by applying subscriber qualification criteria established by the City in its discretion, not to exceed six thousand four hundred eighty (6,480) of all residential Primary Premises.
(xii) SiFi will facilitate the City’s use of the System for governmental internal data communication and non -retail purposes at rates substantially less than current market rates pursuant to the agreement described in Section 2.8.

SiFi recognizes the importance of cyber and network security and strives for continuo us improvement in all its systems. Therefore, the security systems and protocols of SiFi’s network operators and ISPs are considered in selecting the partners that meet industry standards.

SECTION 8

8. Breach; Rights and Remedies; Termination; Indemnification.

8.1. SiFi Breach or Default. In the event the City believes that SiFi has not complied with or is otherwise in default with regard to any material term of this Agreement, the City shall promptly notify SiFi in writing with specific details regarding the exact nature of the alleged noncompliance or default (a “City Breach Notice”). The failure to promptly provide such notice, however, shall not act as a waiver of any rights and remedies of the City hereunder unless and only to the extent that SiFi is materially prejudiced by such failure. City agrees that it shall not issue a City Breach Notice and shall not raise any claims for breach against SiFi, if such breach would not have occurred or such claim would not have been raised had the City issued a permit(s) required and when required, when SiFi has provided the reasonably required information for such a permit, to construct the System or any part thereof to SiFi or its contractor(s).

8.1.1 SiFi’s Right to Cure or Respond. SiFi shall have forty-five (45) days from its receipt of a City Breach Notice (the “Initial SiFi Cure Period”) to:
(i) respond to the City, contesting the assertion of noncompliance or default and in such event the Parties shall use commercially reasonable efforts to promptly resolve such contest and to the extent the Parties are unable to resolve such contest within thirty (30) days of SiFi’s response, each Party shall be entitled to seek any and all rights and remedies available to it at law or in equity to resolve such contest; or (ii) cure an actual default or noncompliance; provided, however, in the event that the default is curable but due to the nature of the default or noncompliance, such default or noncompliance cannot be cured within the Initial SiFi Cure Period, so long as SiFi initiates reasonable steps to remedy and continuously and diligently uses all reasonable efforts to cure such default or noncompliance promptly and notifies the City of the steps being taken and the projected date that they will be completed, the Initial SiFi Cure Period shall be extended for a reasonable amount of time to permit such cure but not to exceed ninety (90) days from SiFi’s receipt of a City Breach Notice (the “Extended SiFi Cure Period” and together with the Initial SiFi Cure Period, the “SiFi Cure Period”).

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8.1.2 City Rights and Remedies.
(i) Except as provided in Section 8.1.2(ii), below, which shall control in connection with the events described therein, if SiFi fails to cure any actual noncompliance or default as provided in Section 8.1.1(ii) above within the SiFi’s Cure Period, the City may:
(a) seek specific performance of any provision of
this Agreement which lends itself to such remedy as an alternative to money damages;
(b) seek money damages from SiFi; or
(c) in the event of the breach of, noncompliance
with or default under any material term of this Agreement, terminate this Agreement and seek any and all rights and remedies available to it at law or in equity.
(ii) In the event of termination of this Agreement City shall allow SiFi to continue all network operations necessary to maximize use of the existing FON in accordance with this Agreement. The City shall however have authority over all extensions of the FON in the Public Way. In the event City elects to permit SiFi to cont inue all network operations, such permission may include mutually agreed and executed amendment of this Agreement, including but not limited to a requirement for additional compensation to be mutually agreed upon by City and SiFi.

8.2 City Breach or Default. In the event SiFi believes that the City has not complied with or is otherwise in default with regard to any term of this Agreement, SiFi shall promptly notify the City in writing with specific details regarding the exact nature of the alleged noncompliance or default (a “SiFi Breach Notice”). The failure to promptly provide such notice, however, shall not act as a waiver of any rights and remedies of SiFi hereunder unless and only to the extent that the City is materially prejudiced by such failure.

8.2.1 City's Right to Cure or Respond. The City shall have forty-five (45) days from its receipt of a SiFi Breach Notice (the “City Cure Period”); provided that the City Cure Period for a failure of the City to review permit applications and issue a permit(s) necessary to construct the System as required under Section 3.2 (a “Permit Issuance Breach”) shall be seven (7) days from its receipt of a SiFi Breach Notice to:
(i) respond to SiFi, contesting the assertion of noncompliance or default and in such event the Parties shall use commercially reasonable efforts to promptly resolve such contest and to the extent the Parties are unable to resolve such contest within thirty (30) days of the City’s response, each Party shall be entitled to seek the rights and remedies provided herein; or
(ii) cure an actual default or noncompliance; provided, however, in the event that the default is curable but due to the nature of the default or noncompliance, such default or noncompliance cannot be cured within the City Cure Period, so long as the City initiates reasonable steps to remedy and continuously and diligently uses all reasonable efforts to cure such default or noncompliance promptly and notifies SiFi of the steps being taken and the projected date that they will be completed, the City Cure Period shall be extended for a reasonable Attachment "1"
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amount of time to permit such cure but not to exceed ninety (90) days from the City’s receipt of a SiFi Breach Notice (the “Extended City Cure Period”); provided further, however, no Extended City Cure Period shall apply to a Permit Issuance Breach.

8.2.2 SiFi Rights and Remedies. If the City fails to cure any actual noncompliance or default as provided in Section 8.2.1(ii) above within the applicable City Cure Period, the City shall not be liable for money damages, and SiFi’s sole and exclusive remedies are to:
(i) seek specific performance of any provision of this Agreement; or (ii) terminate this Agreement.

8.3 Additional Rights to Terminate.

8.3.1 At any time prior to commencing Construction, SiFi shall have the immediate right, at its option, upon written notice to the City to terminate this Agreement.

8.3.2 A Party shall have the right, at its option, upon notice to the other Party to terminate this Agreement if the other Party becomes (i) insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (ii) subject to any bankruptcy or insolvency proceeding under federal, state or foreign statutes which is not rescinded or dismissed within thirty (30) days.

8.4 Indemnification.

8.4.1 SiFi represents and warrants that to the extent of its knowledge it does not require any state and federal regulatory authorizations to construct, operate, maintain and manage the System. SiFi agrees to defend, indemnify and hold the City, its officials, officers, employees free and harmless from any and all claims, demands, penalties or proceedings resulting from any breach of this warranty or in connection with SiFi’s compliance with state and federal laws and regulations applicable to installation, maintenance and operation of the System.

8.4.2 SiFi shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner which actually or allegedly arise out of or are incident to any alleged acts, omissions, negligence or willful misconduct of SiFi, its officials, officers, employees, agents, and subcontractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all attorney’s fees and other related costs and expenses except where caused by the active negligence, sole negligence, or willful misconduct of the City its officers, officials, employees and volunteers. SiFi shall defend, at its own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents or volunteers. SiFi shall pay and satisfy any judgment, award or decree, including an award of attorney’s fees, that may be rendered against the City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. SiFi shall reimburse the City, its officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. SiFi’s obligation to indemnify shall not be Attachment "1"
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restricted to insurance proceeds, if any, received by the City its officials, officers, employees, agents or volunteers.

8.5 Limitation of Liability. EXCEPT WITH RESPECT TO SiFi’s INDEMNITY OBLIGATIONS UNDER SECTION 8.4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE

OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE,

OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING ANY LOST SAVINGS OR HARM TO BUSINESS. EACH PARTY HEREBY RELEASES THE OTHER PARTY

AND ITS AFFILIATES A ND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS,

MEMBERS, EQUITY AND DEBT HOLDERS, PARTNE RS, EMPLOYEES, CONTR ACTORS

AND REPRESENTATIVES AND THEIR HEIRS, SUC CESSORS AND ASSIGNS , FROM CLAIMS FOR ANY SUCH DAMAGES. SiFi per occurrence liability under this Agreement shall be limited to the higher of five million dollars ($5,000,000) or the amount of available applicable insurance coverage. Notwithstanding anything to the contrary contained in this Agreement, t he provisions of this Section 8.5 will survive expiration or termination of this Agreement.

SECTION 9

9. Disputes.

9.1 For all claims, disputes or controversies arising out of, or in connection with, the breach, interpretation, application, or enforcement of this Agreement, or arising out of, or in connection with, the System which cannot be settled through negotiation, the Parties agree first to try in good faith to settle the matter by mediation in San Diego County prior to commencing litigation.

9.2 All claims, disputes or controversies arising out of, or in connection with, the breach, interpretation, application, or enforcement of this Agreement, or arising out of, or in connection with, the System, not resolved informally or through mediation shall be decided in a court of law. The sole and exclusive venue for all claims, disputes or controversies arising out of, or in connection within the breach, interpretation, application, or enforcement of this Agreement, or arising out of, or in connection with, the System, shall be the United States District Court with applicable federal jurisdiction for the City or, if there is no federal court jurisdiction, in San Diego Superior Court, North County branch.

SECTION 10

10. Miscellaneous Provisions

10.1 Assignment. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and each of their respective successors and assigns as provided herein. The City shall not be permitted to assign, sell or transfer this Agreement, or its rights and duties under this Agreement, without the prior written consent of SiFi, which consent shall not be unreasonably withheld, conditioned, or delayed. SiFi shall have the right to assign, novate, sell, encumber, or transfer this Agreement and the System or any part thereof, without the consent of the City to SiFi’s principal, affiliates, subsidiaries, subsidiaries of its principal or any entity which acquires all or s ubstantially all of the SiFi's assets in the market by reason of a merger, acquisition, or other business reorganization, provided such assignee, purchaser, or transferee (i) has all appropriate licenses , to the extent SiFi’s licenses, permits and approvals cannot be assigned or transferred, for the operation, management, and maintenance of the Attachment "1"
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facilities contemplated herein , and (ii) has sufficient financial resources to fulfill all applicable terms and obligations under this Agreement. At least thirty (30) days prior to the effective date, or as soon as practicable, of any such assignment, sale or transfer, SiFi shall provide City with a fully executed copy of the assignment, sale or transfer document, signed by both Si Fi and assignee/purchaser/transferee, indicating the assignee's/purchaser's/ transferee's assumption of all of SiFi's performance duties, liabilities and obligations under this Agreement. SiFi shall not be relieved of its performance duties, liabilities or obligations under this Agreement until City is in receipt, of a fully executed copy of the document evidencing such assignment of the obligations herein and the assignee’ s/purchaser’s/transferee’s assumption of SiFi’s performance duties, liabilities, and obligations under this Agreement. SiFi may not otherwise assign this Agreement or the System without City’s consent, City’s consent not to be unreasonably withheld, conditioned, or delayed. Upon any such City-approved assignment, sale, transfer, or novation, SiFi shall be released from all obligations and liabilities under this Agreement from and after the date of such assignment. SiFi shall give the City fourteen (14) days' advance written notice of such assignment, sale, transfer or novation disclosing the identity of the Person to whom it has been assigned, transferred, sold or novated. The City agrees from time to time to promptly deliver (and in no event later than thirty (30) days after request by SiFi) to SiFi an estoppel certificate addressed to the assignee, buyer or transferee designated by SiFi, affirming for the benefit of such buyer, assignee or transferee the following (to the extent that the following are then true):
the Agreement is in full force and effect; SiFi is not in default thereunder; and such other matters as such assignee, buyer or transferee may reasonably request.

10.2 Force Majeure. Except as otherwise expressly set forth in this Agreement, neither Party will be held in default under, or in breach or noncompliance with, the provisions of this Agreement, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of this Agreement), where such noncompliance or alleged defaults occurred or were caused by any of the following events (each a “Force Majeure Event”):
labor strike, riot, war, earthquake, flood, hurricane, health crisis, pandemic, drought, tornado, unusually severe weather conditions, or other act of nature, labor disputes, failure of utility service necessary to construct the System, governmental, administrative or judicial order, or other event that is beyond the Party’s reasonable control. Force Majeure Events also include work delays caused by waiting for (i) utility providers to service or monitor their own utility infrastructure on which SiFi’s fiber optic cable and/or equipment may be deployed, as wel l as unavailability of materials and/or reasonably qualified labor to perform the work or (ii) third parties’ acts or omissions within the Public Way which materially interfere with the Parties’ ability to perform their obligations under this Agreement.

10.3 Notice. All notices and communications hereunder shall be in writing and shall be served upon the other party by hand delivery, nationally recognized overnight delivery service, United States certified mail, return receipt requested, or by electronic mail and addressed as follows:

IF TO THE CITY:

City of Escondido
201 N Broadway
Escondido, CA 92025
Attn: City Engineer
Email: [email protected]
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IF TO SIFI:

SiFi Networks Escondido LLC
103 Foulk Road, Suite 500
Wilmington, DE 19803
Email: [email protected]
or to such other address as such Party may hereafter specify for the purpose by notice to the other Party in the manner provided in this Section 10.3. All such notices, requests and other communications will be deemed received on the date of receipt if received prior to 5 p.m. on any business day in the place of receipt. Otherwise, any such notice, request or communication will be deemed not to have been received until the next succeeding business day in the place of receipt. Rejection or other refusal to accept or inability to deliver because of change of address of which no notice was given shall be deemed to be receipt of the notice.

10.4 Entire Agreement. This Agreement, including all Exhibits, embodies the entire understanding and agreement of the City and SiFi with respect to the subject matter hereof. This Agreement supersedes all other agreements whether written, verbal, or otherwise between SiFi and the City with respect to the subject of this Agreement.

10.5 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement (which other terms and provisions shall remain in full force and effect) or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

10.6 Governing Law. This Agreement shall be deemed to be executed in the State and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State as applicable to contracts entered into and performed entirely within the State, irrespective of conflict of laws principles.

10.7 Modification. This Agreement shall not be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the City and SiFi. For the avoidance of doubt, this Agreement cannot be amended or modified orally or by course of conduct, and no executory agreement, oral agreement or course of conduct shall be effective to amend or modify this Agreement in whole or in part.

10.8 No Third-Party Beneficiaries. Nothing in this Agreement or in any prior agreement is or was intended to confer third party beneficiary status on any party or Person not a party to this Agreement including a member of the public.

10.9 No Waiver of Rights. Nothing in this Agreement shall be construed as a waiver of any rights, substantive or procedural that SiFi or the City may have under federal or state law unless such waiver is expressly stated herein.

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10.10 No Rights to the System. The City expressly agrees that, except as expressly set forth in this Agreement, it does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the System, throughout the term of this Agreement. Except as otherwise provided herein, SiFi shall, at all times, retain title to and ownership of the System and all future extensions of the System, and shall have the right to lease the System or parts thereof to a provider of internet, data, voice, video and other services.

10.11 Representations and Warranties.

10.11.1 The City represents and warrants to SiFi that: (a) it has full authority (including the authority required by any applicable law, ordinance, rule or regulation) to enter into and perform this Agreement and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby are within the right, power and authority of the City and have been duly authorized by all necessary action on the part of City, (b) this Agreement has been duly executed and delivered by the City and it constitutes a legal, valid and binding agreement of the City enforceable against the City in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity), and (c) the execution and delivery of this Agreement by the City and its performance hereunder and thereunder will not violate any law, ordinance, rule, or regulation applicable to the City.

10.11.2 SiFi represents and warrants to the City that: (a) it has full authority to enter into and perform this Agreement and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby are within the power and authority of SiFi and have been duly authorized by all necessary action on the part of SiFi, (b) this Agreement has been duly executed and delivered by SiFi and it constitutes a legal, valid and binding agreement of SiFi enforceable against SiFi in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity), and (c) the execution and delivery of this Agreement by SiFi and its performance hereunder and thereunder will not violate any law, rule, or regulation applicable to SiFi.

10.11.3 OTHER THAN THE EXPLICIT REPRESENTATIONS AND

WARRANTIES MADE BY SIFI TO CITY UNDER THIS AGREEMENT, SIFI MAKES NO

REPRESENTATIONS OR WARRANTIES TO THE CITY OR ANY PERSON WITH RESPECT

TO THE SYSTEM (OR THE COMPONENTS THEREOF) AND HEREBY DISCLAIMS ANY AND

ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT

LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY

WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT SIFI MAY NOT AS A MATTER OF APPLICABLE

LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

10.12 No Third-Party Contractual Rights. Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either SiFi or the City.

10.13 No Partnership. Nothing in this Agreement shall be construed to create an employment, partnership, joint venture or agency relationship between the City and SiFi or any Attachment "1"
82 Item7.

Page 24 of 26 ends

other relationship other than a contractual relationship as expressly set forth in this Agreement.

Neither Party shall in any manner act or indicate to any third party that it is acting as the employee or agent of the other Party. SiFi shall at all times remain an independent contractor. Neither Party shall control or direct the day-to-day affairs of the other Party, or their mode or method of performing their respective obligations hereunder.

10.14 Headings. The headings and captions of this Agreement are solely for the convenience of the Parties and shall not be deemed to modify or vary any of the substantive terms thereof.

10.15 Construction. Each of the Parties acknowledge that each Party to this Agreement has been represented by counsel in connection with this Agreement. Legal or equitable principles that might require the construction of this Agreement or any provision hereof against the party drafting this Agreement shall not apply in any construction or interpretation of this Agreement and is expressly waived. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. References to Articles, Sections, and clauses are to Articles, Sections and clauses of this Agreement unless otherwise specified. Any singular term in this Agreement will be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

10.16 Counterparts. This Agreement may be signed in any number of counterparts, each of which will be deemed an original, with the same effect as if the signatures were upon the same instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (including PDF) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

10.17 Further Assurances. Each Party agrees that it will execute and deliver such other documents and take such other action as may be reasonably requested by the other Party to effectuate the purposes and intention of this Agreement.

10.18 No Waiver. No provision of this Agreement may be waived unless such waiver is in writing and signed by the Party against whom the waiver is to be effective. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach. [Signature Page to Follow]
Attachment "1"
83 Item7.

Attachment "1"
84 Item7.

Attachment "1"
85 Item7.

Page 26 of 26 ends

EXHIBIT A

SPECIFICATIONS, SHELTERS, CABINETS
Attachment "1"
86 Item7.

PAGE# 1
Attachment "1"
87 Item7.

PAGE# 2
Attachment "1"
88 Item7.

MICROTRENCH PATHWAY (TYP.)
S/W
EOP
FOC
VARIES18"
R/W
18"
S/W
EOP
FOC
R/W
℄
A.C. PAVEMENT

CATCH BASIN (STORM DRAIN)

TREATED AS UTILITY CROSSING
SEE NOTE BELOW.

CONCRETE CURB & GUTTERROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY WITH A CURB RETURN

ROADWAY

WITH A CURB
RETURN PAGE# 3
Attachment "1"
89 Item7.

S/W
℄
MICROTRENCH PATHWAY (TYP.)
A.C. PAVEMENT
EOP
FOC
VARIES18"
R/W
18"
S/W
EOP
FOC
R/W

CONCRETE CURB & GUTTERROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

ROADWAY

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY WITH CURB & GUTTER - VARIANT A

ROADWAY

WITH A CURB
RETURN VARIANT A PAGE# 4
Attachment "1"
90 Item7.

MICROTRENCH PATHWAY (TYP.)
S/W
EOP
FOC
VARIES18"R/W 18"
S/W
EOP
FOC
R/W
℄
A.C. PAVEMENT

12.5' MINIMUM RADIUS
2'x 1'
2" grind and cap

CONCRETE CURB & GUTTERROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

ROADWAY

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH
℄

EXISTING COLD JOINT WITH
3-#4, 4' LONG DOWELS (TYP.)

DO NOT CUT
FLOW LINES (TYP.)
MICROTRENCH (TYP.)
MICROTRENCH (TYP.)S/W
EOP
FOC
VARIES18"
R/W
18"
S/W
EOP
FOC
R/W

SPANDREL SPANDREL
8' CROSS GUTTER
2' x 6"

ROADWAY WITH CURB AND GUTTER - VARIANT B

ROADWAY

WITH A CURB
RETURN VARIANT B PAGE# 5
Attachment "1"
91 Item7.

MICROTRENCH PATHWAY (TYP.)
S/W
EOP
FOC
VARIES18"R/W 18"
S/W
EOP
FOC
R/W
℄
A.C. PAVEMENT

12.5' MINIMUM RADIUS

12.5' MINIMUM RADIUS
2'x 1'
2" grind and cap
2'x 1'
2" grind and cap

CONCRETE CURB & GUTTERROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

ROADWAY

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY WITH CURB AND GUTTER - VARIANT C

ROADWAY

WITH A CURB AND
GUTTER VARIANT C PAGE# 6
Attachment "1"
92 Item7.

MICROTRENCH PATHWAY (TYP.)
S/W
EOP
FOC
VARIES18"
R/W
18"
S/W
EOP
FOC
R/W
℄
A.C. PAVEMENT
30'

12.5' MINIMUM RADIUS 12.5' MINIMUM RADIUS

CONCRETE CURB & GUTTERROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER 8"

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

ROADWAY

REINSTATEMENT MATERIAL / FLOWABLE FILL
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH

ROADWAY CROSSING

ROADWAY

CROSSING
PAGE# 7
Attachment "1"
93 Item7.

ROADWAY

5.5'

TREE BELT
4'

SIDEWALK

CONCRETE W/PAB

1.25" (TYP) - 2" (MAX)

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

SOFT FILL
TOTAL

REINSTATEMENT
COVER 8"
MICROTRENCH PATHWAY (TYP.)
S/W
EOP
FOC
R/W
S/W
EOP
FOC
R/W
℄
A.C. PAVEMENT

CATCH BASIN (STORM DRAIN)

TREATED AS UTILITY CROSSING
SEE NOTE BELOW.
12" PIT

PUSH UNDER CURB
12" PIT

PUSH UNDER CURB
PAGE# 8
Attachment "1"
94 Item7.

ROADWAY
4'

SIDEWALK

CONCRETE W/PAB

1.25" (TYP) - 2" (MAX)

TRENCH DEPTH
12" MAX
1"-2" SAND COVER
TOTAL

REINSTATEMENT
COVER 8"

REINSTATEMENT MATERIAL / FLOWABLE FILL
MICROTRENCH PATHWAY (TYP.)
S/W
EOP
FOC
R/W
S/W
EOP
FOC
R/W
℄

CATCH BASIN (STORM DRAIN)

TREATED AS UTILITY CROSSING
SEE NOTE BELOW.
12" PIT
PUSH UNDER CURB 12" PIT

PUSH UNDER CURB
2" (TYP) - 6" (MAX)

TRENCH DEPTH

VARIES DUE TO

DEPTH OF REBAR
REBAR

VERIFY DEPTH LOCATION VIA GPR
SEE DETAIL BELOW.

CONCRETE

ROADWAY
1/8 " Over Band Seal

WITH COLOR

MATCHING SAND
FINISH
PAGE# 9
Attachment "1"
95 Item7.

TRENCH DEPTH
12" MAX
ROADWAY1"

MICRO DUCTS

TUNNEL UNDER ROADWAY
WITH HAMMER DRILL. MICRO
TRENCH STOPS 1" EACH

SIDE OF SHALLOW UTILITY
1"
1"-2" SAND COVER

TRAFFIC LOOP

VERIFY DEPTH LOCATION VIA GPR
SEE DETAIL BELOW.

MICROTRENCH

REINSTATEMENT MATERIAL /

FLOWABLE FILL
Over Band Seal

WITH COLOR

MATCHING SAND
FINISH
S/W
EOP
FOC
VARIES18"
R/W
S/W
EOP
FOC
R/W
℄

TUNNEL UNDER TRAFFIC LOOP

VERIFY DEPTH LOCATION VIA GPR
SEE DETAIL BELOW.

MICROTRENCH (TYP.)
MICROTRENCH (TYP.)
A.C. PAVEMENT

CONCRETE CURB & GUTTERROADWAY

1.25" (TYP) - 2" (MAX)
TOTAL

REINSTATEMENT
COVER *VARIES*

TRENCH DEPTH
12" MAX
1"-2" SAND COVER

TUNNEL UNDER ROADWAY WITH HAMMER DRILL

TRAFFIC LOOP

VERIFY DEPTH LOCATION VIA GPR
SEE DETAIL BELOW.

REINSTATEMENT MATERIAL /

FLOWABLE FILL
PAGE# 10
Attachment "1"
96 Item7.

CURB

STORM GRATE

FILTREXX SOXX

EXCESS SOXX MATERIAL

TO BE DRAWN IN AND TIED OFF TO
2X2 WOODEN STAKE (TYP.)
CURBSIDE OPTION "A" PLAN CURBSIDE OPTION "B" PLAN

MANHOLE
CURB

OPENING

OVERFLOW

GAPAGGREGATE
POUCH

CURB FILTER
STANDARD CHAmBER/INlET pROTECTION

STANDARD
CHAmBER/INlET
pROTECTION

CHAMBER

CHAMBER
PAGE# 11
Attachment "1"
97 Item7.
9' X 23'-7 1
4" SHELTER

CONCRETE FOUNDATION/SLAB
HVAC
26'-5 1
2"
13'
HVAC
TYpICAl AGGREGATION SHElTER
TYpICAl

AGGREGATION
SHElTER
PAGE# 12
Attachment "1"
98 Item7.

CONCRETE

PATHWAY
TYPICAL 12' WIDE ACCESS ROAD
(AS REQUIRED BY JURISDICTION)

CRUSHED ROCK

SURFACING OR GRASS

H-FRAME FOR POWER
XFRM

CRUSHED ROCK

SURFACING OR
GRASS
5"5'
9'
42'
23'
5"5'

FENCE/WALL
3-PHASE 400 AMP SUPPLY
9' X 23'-7 1
4"

AGGREGATION

SHELTER

CONCRETE FOUNDATION/SLAB

HVACHVAC
TYpICAl AGGREGATION SHElTER
TYpICAl

AGGREGATION
SHElTER
PAGE# 13
Attachment "1"
99 Item7.
30"x48"x36"

CHAMBER
30"x48"x36"

CHAMBER
(E) GRADE (E) GRADE

TO MICRO-TRENCHTO MICRO-TRENCH

MICRO-TRENCH ENTRYMICRO-TRENCH ENTRY

UNDERGROUND POWER IN
CONDUIT. TO POINT OF

CONNECTION TO BE VERIFIED
WITH UTILITY CO.

POWER CONDUIT FOR POWER
POWER FEED CONDUIT (TYP.)
4" CONDUIT SCH. 80 HDPE
36" MIN.
(TYP.)
36" MIN.
(TYP.)
MICRO TRENCH ENTRY NOTE:
· 4" DIAMETER PENETRATION
· 9" DOWN FROM TOP OF CHAMBER
· 6" IN FROM CORNER OF CHAMBER
4" CONDUIT SCH. 80 HDPE
HFRAME

AGGREGATION

SHELTER
12'X30' CONCRETE SLAB
PTS
3- PHASE 200 AMP SUPPLY
TYpICAl AGGREGATION SHElTER
ElEVATION VIEW
TYpICAl

AGGREGATION
SHElTER
ElEVATION VIEW
PAGE# 14
Attachment "1"
100
Item7.

NOKIA ALP-248

ELECTRONICS CABINET
PRECAST CONCRETE PAD 48"x72"
30"x48"x36"

CHAMBER
30"x48"x36"

CHAMBER

SIDEWALK,

WIDTH VARIES BY LOCATION
EOP
FOC
BOC
NOKIA ALP-248

ELECTRONICS CABINET
PTS

METER PEDESTAL

GRAVEL FILL, COMPACTED

EXISTING GRADE
PRECAST 6"

CONCRETE PAD

PRE-EXISTING GRADE
ORIGINAL SLOPE 1
2 " PER FOOT

CLEARANCE AREA

FOR SWING DOOR

CLEARANCE AREA

FOR SWING DOOR

PRECAST CONCRETE PAD
ELEVATION SHOWS AS EXAMPLE:
· 4' PARK/BEAUTY STRIP
· TYPE B1 6" CURB AND GUTTER
6'-0"
10"
50" 12"12" 1"-3/4"
25"
11"
26"
11"
48"
18"
11"
50" 11"12"
48"
6"
12"
46"
26"11" 6" 5"
TYpICAl CABINET DETAIlS
TYpICAl CABINET
DETAIlS
PAGE# 15
Attachment "1"
101
Item7.

NOKIA ALP-248

ELECTRONICS CABINET
30"x48"x36"

CHAMBER
30"x48"x36"

CHAMBER
PRECAST CONCRETE PAD 48"x72"
(E) GRADE (E) GRADE

TO MICRO-TRENCHTO MICRO-TRENCH

MICRO-TRENCH ENTRY

UNDERGROUND POWER IN
CONDUIT. TO POINT OF

CONNECTION TO BE VERIFIED
WITH UTILITY CO.

CHAMBER

CHAMBER
PAGE# 17
Attachment "1"
103
Item7.

PRIVATE PROPERTY
ROWROW

GREENBELT/ ASTRO TURF/ SOFTSCAPE

CONCRETE SIDEWALK

ROADWAY
CURB

MAINLINE TRENCH
TB
12"
ROW
ROW

CONCRETE CURB

ROADWAY

5.5'

TREE BELT
12"
4'

SIDEWALK

CONCRETE W/PAB
TB
10"

LATERAL

MAINLINE TRENCH
PAGE# 18
Attachment "1"
104
Item7.

PRIVATE PROPERTY
ROWROW

GREENBELT/ ASTRO TURF/ SOFTSCAPE

CONCRETE SIDEWALK

ROADWAY
CURB

MAINLINE TRENCH
TB
12"
ROW
ROW

CONCRETE CURB

ROADWAY

5.5'

TREE BELT
4'

SIDEWALK

CONCRETE W/PAB
12"
TB

MAINLINE TRENCH

LATERAL
10"
PAGE# 19
Attachment "1"
105
Item7.

PRIVATE PROPERTY
ROWROW

GREENBELT/ ASTRO TURF/ SOFTSCAPE

CONCRETE SIDEWALK

ROADWAY
CURB

MAINLINE TRENCH
TB
12"
ROW
ROW
12"

CONCRETE CURB

ROADWAY

5.5'

TREE BELT
4'

SIDEWALK

CONCRETE W/PAB
12"
TB
10"
12"

MAINLINE TRENCH

LATERAL
PAGE# 20
Attachment "1"
106
Item7.

PRIVATE PROPERTY
ROWROW

GREENBELT/ ASTRO TURF/ SOFTSCAPE

CONCRETE SIDEWALK

ROADWAY
CURB

MAINLINE TRENCH
TB
ROW
ROW
12"

5.5'

TREE BELT
4'

SIDEWALK

CONCRETE W/PAB

CONCRETE CURB
ROADWAY 10"

PROPERTY LINE
12"
TB

MAINLINE TRENCH

LATERAL
PAGE# 21
Attachment "1"
107
Item7.

PRIVATE PROPERTY
ROWROW

GREENBELT/ ASTRO TURF/ SOFTSCAPE

ROADWAY
CURB

MAINLINE TRENCH
TB
12"
ROW
ROW

CONCRETE CURB

ROADWAY

TREE BELT CURB
TO R.O.W.
12"
TB
10"

MAINLINE TRENCH

LATERAL
PAGE# 22
Attachment "1"
108
Item7.

PRIVATE PROPERTY
ROWROW

ROADWAY
CURB

MAINLINE TRENCH
ROW
ROW
FAB

CONCRETE SIDEWALK

ROADWAY

HARDSCAPE/CONCRETE
FAB
10"

PROPERTY LINE

LATERAL

CONCRETE CURB

MAINLINE TRENCH
PAGE# 23
Attachment "1"
109
Item7.

PAGE# 24
Attachment "1"
110
Item7.

PAGE# 25
Attachment "1"
111
Item7.

PAGE# 26
Attachment "1"
112
Item7.

PAGE# 27
Attachment "1"
113
Item7.

PAGE# 28
Attachment "1"
114
Item7.

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.

INSURER(S) AFFORDING COVERAGE
INSURER F :

INSURER E :

INSURER D :

INSURER C :

INSURER B :

INSURER A :

NAIC #
NAME:

CONTACT
(A/C, No):

FAX
E-MAIL
ADDRESS:

PRODUCER
(A/C, No, Ext):

PHONE

INSURED
REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.

If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).

THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.

OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD

THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS

CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $
$
$PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)

COMBINED SINGLE LIMIT

AUTOS ONLY

AUTOSAUTOS ONLY

NON-OWNED

SCHEDULEDOWNED

ANY AUTO

AUTOMOBILE LIABILITY
Y / N

WORKERS COMPENSATION

AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under

ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTH-

STATUTE
PER

LIMITS(MM/DD/YYYY)

POLICY EXP
(MM/DD/YYYY)

POLICY EFF

POLICY NUMBERTYPE OF INSURANCELTR
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)

EXCESS LIAB
UMBRELLA LIAB $EACH OCCURRENCE
$AGGREGATE
$
OCCUR

CLAIMS-MADE
DED RETENTION $
$PRODUCTS - COMP/OP AGG
$GENERAL AGGREGATE
$PERSONAL & ADV INJURY
$MED EXP (Any one person)
$EACH OCCURRENCE

DAMAGE TO RENTED
$PREMISES (Ea occurrence)

COMMERCIAL GENERAL LIABILITY

CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:

POLICY PRO-

JECT LOC

CERTIFICATE OF LIABILITY INSURANCE

DATE (MM/DD/YYYY)

CANCELLATION

AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2016 ACORD CORPORATION. All rights reserved.

CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED

AUTOS ONLY
Willis Towers Watson Insurance Services West, Inc.
c/o 26 Century Blvd
P.O. Box 305191
Nashville, TN 372305191 USA
SiFi Networks Escondido LLC
103 Foulk Road, Suite 500
Wilmington, DE 19803
The Umbrella Liability policy is follow form and in excess of liability coverage.

SEE ATTACHED
City of Escondido
Attn: City Engineer
201 N Broadway
Escondido, CA 92025
10/06/2022
1-877-945-7378
1-888-467-2378
[email protected]
Atlantic Specialty Insurance Company
27154
OBI America Insurance Company
15645
W26275810
A
1,000,000
1,000,000
15,000
1,000,000
2,000,000
2,000,000
Y
711-01-65-77-0003
02/01/2022
02/01/2023
A
1,000,000
02/01/2023
02/01/2022
711-01-65-77-0003
A
5,000,000
711-01-65-77-0003
02/01/2022
02/01/2023
5,000,000
406-04-57-85-0003
B
1,000,000
02/01/2022
02/01/2023
1,000,000
1,000,000
A
Cyber Technology
760-01-05-63-0003
03/01/2022
02/01/2023
2695259
23168681
SR ID:

BATCH:

See Below
Willis Towers Watson Certificate Center

Page 1 of 2 ends

Attachment "1"
115
Item7.

ACORD 101 (2008/01)
The ACORD name and logo are registered marks of ACORD
© 2008 ACORD CORPORATION. All rights reserved.

THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE:

ADDITIONAL REMARKS
ADDITIONAL REMARKS SCHEDULE Page of
AGENCY CUSTOMER ID:

LOC #:

AGENCY

CARRIER NAIC CODE

POLICY NUMBER

NAMED INSURED
EFFECTIVE DATE:

SiFi Networks Escondido LLC
103 Foulk Road, Suite 500
Wilmington, DE 19803
Errors & Omissions Liability: $5,000,000 each claim of suit limit / $5,000,000 Aggregate limit / $100,000 Retention Network Security / Data Privacy: $5,000,000 each claim of suit limit / $5,000,000 Aggregate limit / $100,000 Retention Media Liability: $5,000,000 each claim of suit limit / $5,000,000 Aggregate limit / $100,000 Retention The City, its officers, officials, employees, and volunteers are included as Additional Insureds as respects to General Liability per written contract or agreement.

General Liability policy per written contract or agreement shall be Primary to any other insurance in force for or which may be purchased by Additional Insured per written contract or agreement Waiver of Subrogation applies in favor of Additional Insured with respects to Worker's Compensation, as permitted by law.
.
2 2
Willis Towers Watson Insurance Services West, Inc.

See Page 1
See Page 1
See Page 1
See Page 1
25 Certificate of Liability Insurance
W26275810
CERT:
2695259
BATCH:
23168681
SR ID:

Attachment "1"
116
Item7.

City of Escondido
Business License Division
201 N Broadway
Escondido, C
A 92025

CITY OF ESCONDIDO

BUSINESS LICENSE CERTIFICATE
Business License No:

Expiration Date:

Business
Type:

Ownership:
209211

LTDLIABILITY

SERVICE
SiFi Networks Escondido LLC
Attn: SiFi Networks Escondido LLC
103 Foulk Road, Suite 500
Wilmington, DE 19803
09/30/2023

IMPORTANT INFORMATION
· Please verify all information. If any changes occur, please contact the Business License Division at (760) 839-4659. · Remember to renew your Business License within one month of the Expiration Date, even if you don’t receive a Renewal Notice.

Payments postmarked or paid on-line after the Penalty Date will incur late penalties of 25% per month. · Closing your business or no longer working in Escondido? You must sign, date and return your Renewal Notice to close your account. · Please display the Certificate below in public view.
· Escondido’s business licenses are issued for revenue purposes. The issuance or possession of a license confers no rights or privileges and only serves to prove that a business tax has been paid for the period specified on the license certificate. Licenses are not deemed regulatory in any way and are not proof of compliance with zoning, building, or any other regulations of the city. · Pursuant to California state law AB 1607 and Civil Code Section 51.6(g), the City is concurrently providing you with a notice regarding prohibitions on gender-based discrimination and related posting requirements for your business on the following pages.

Thank you for doing business in the City of Escondido!

FOLD OR DETACH HERE FOR DISPLAY

BUSINESS LICENSE CERTIFICATE CIT Y OF ESCONDIDO
This certificate is to be displayed at your place of business. It is issued without verification that the holder is subject to or exempt from licensing by the State of California. This certificate does not consititute a permit to operate a business in violation of any law or ordinance.

Business
Name:

Business
Location:

Business
Phone:

Owner/
Officer:

NPDES:

POST IN A CONSPICUOUS PLACE - NOT TRANSFERABLE
201 N Broadway
Escondido, CA 92025
(760) 839-4659
Business License Number:

NAICS#:

SIC#:

Conditions/Remarks:
209211
SiFi Networks Escondido LLC
8182055070
Ben Bawtree-Jobson
103 Foulk Road, Suite 500
Wilmington, DE 19803
Expiration Date: 09/30/2023
517311 - Wired Telecommunications
Carriers
4822 - Telegraph and Other
Communications
Attachment "1"
117
Item7.

Attachment "1"
118
Item7.

Attachment "1"
119
Item7.

BUDGET ADJUSTMENT

REQUEST
Department: Engineering
For Finance Use Only
BA # ____________
Fiscal Year ________
Department Contact: Julie Procopio, City Engineer
City Council Meeting Date:
(attach staff report) 11/15/2023

EXPLANATION OF REQUEST
Approve Consulting Services Agreement with HR Green Pacific, Inc. for on Call Engineering Services

BUDGET ADJUSTMENT INFORMATION
Project/Account Description Account Number
Amount of
Increase
Amount of
Decrease
Reimbursement from Outside
Agency 4370-001-000 1,600,000
Professional Services 5131-001-402 1,600,000

APPROVALS

DEPARTMENT HEAD DATE FINANCE DATE
DocuSign Envelope ID: 0BDEA336-10A1-46A1-969B-CF4569C67C45 11/8/2023
11/7/2023
Attachment "2"
120
Item7.

RESOLUTION NO. 2023-141

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, A UTHORIZING THE MAYOR TO

EXECUTE, ON BEHALF OF THE CITY, A CONSULTING
SERVICES AGREEMENT WITH HR GREEN PACIFIC , INC. FOR

ON CALL ENGINEERING SERVICES

WHEREAS, the City Council has authorized a Right of Way Encroachment Agreement with Si Fi to build a FiberCity network; and
WHEREAS, a request for on call engineering services was posted on April 6, 2023 , and eight responses were received on April 28, 2023; and
WHEREAS, upon evaluation of all of the proposals received, HR Green Pacific, Inc. was selected as the most qualified consultant; and
WHEREAS, the City Council desires at this time and deems it to be in the best public interest to approve a Consulting Services Agreement with HR Green Pacific, Inc. for on call engineering services.

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 Mayor is authorized to execute, on behalf of the City, a C onsulting Services Agreement with HR Green Pacific, Inc. for on call engineering services (Phase I) in the amount of $683,980, which is attached and incorporated to this Resolution as Exhibit “A” and subject to final approval as to form by the City Attorney.

3. That the Mayor is authorized to execute on behalf of the City, an amendment for Phase II services, in the amount of $927,045 for a total agreement amount of $1,611,026. 121
Item7.

Consulting Agreement (v1) - 1 - CAO: 2/16/2023

CITY OF ESCONDIDO

CONSULTING AGREEMENT
This Consulting Agreement (“Agreement”) is made and entered into as of the last signature date set forth below (“Effective Date”),
Between: CITY OF ESCONDIDO
a California municipal corporation
201 N. Broadway
Escondido, CA 92025
Attn: Jason Christman
760-839-4615
("CITY")
And: HR Green Pacific, Inc.
a California corporation
1260 Corona Pointe Court, Suite 305
Corona, CA 92879
Attn: Tina York, PE
855-900-4742
("CONSULTANT").
(The CITY and CONSULTANT each may be referred to herein as a “Party” and collectively as the “Parties.”)
WHEREAS, the CITY has determined that it is in the CITY’s best interest to retain the professional services of a consultant to perform engineering review services for an underground fiber optics deployment planned within City right of way by a telecommunications service provider; WHEREAS, CONSULTANT is considered competent to perform the necessary professional services for the CITY; and
WHEREAS, the CITY and CON SULTANT desire to enter into this Agreement f or the per - formance of the Services described herein.

NOW, THEREFORE, in consideration of the mutual covenants, promises, terms, and conditions set forth herein, and the mutual benefits derived therefrom, the Parties hereby agree as follows:

1. Description of Services. CONSULTANT shall furnish all of the Services described in the Scope of Work, which is attached to this Agreement as Attachment “A” and incorporated herein by this reference (“Services”).

Resolution No. 2023-141
Exhibit "A"

Page 1 of 13 ends

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Consulting Agreement (v1) - 2 - CAO: 2/16/2023

2. Compensation. In exchange for CONSULTANT’s completion of the Services, the CITY shall pay, and CONSULTANT shall accept in full, an amount not to exceed the sum of $683,980 for Phase I services. If approved by separate notice to proceed and an amendment of this Agreement, Phase II services in the sum of $927,045 may be authorized resulting in a total contract sum of $1,611,026 CONSULTANT shall be compensated only for performance of the Services described in this Agreement. No compensation shall be provided for any other work or services without the CITY’s prior written consent. If this Agreement is amended at any time, additional compensation of CONSULTANT contained in any subsequent amendments shall not exceed a cumulative total of 25% of the maximum payment provided for in this Section 2, unless approved by resolution of the City Council.

3. Performance. CONSULTANT shall faithfully perform the Services in a proficient manner, to the satisfaction of the CITY, and in accord with the terms of this Agreement . CONSULTANT shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all reports and other information furnished by CONSULTANT pursuant to this Agreement, except that CONSULTANT shall not be responsible for the accuracy of information supplied by the CITY.

4. Personnel. The performance of the Services by certain professionals is significant to the CITY. As such, CONSULTANT shall only assign the persons listed on Attachment “B” , attached to this Agreement and incorporated herein by this reference (“Personnel List”), to perform the Services.

CONSULTANT shall not add or remove persons from the Personnel List without the City’s prior written consent. If CONSULTANT has not designated a person to perform a component of the Services, CONSULTANT shall not assign such component of the Services to a person without obtaining the City’s prior written consent. CONSULTANT shall not subcontract any component of the Services without obtaining the City’s prior written consent.

5. Termination. The Parties may mutually terminate this Agreement through a writing signed by both Parties. The CITY may terminate this Agreement for any reason upon providing CONSULTANT with 10 days’ advance written notice. CONSULTANT agrees to cease all work under this Agreement on or before the effective date of any notice of termination. If the CITY terminates this Agreement pursuant to this Section 5 (Termination), then CONSULTANT shall be compensated based on the work performed at the time of such termination. In no event shall CONSULTANT be entitled to receive more than the amount that would be paid to CONSULTANT for the full performance of the Services.

6. City Property. All original documents, drawings, electronic media, and other materials prepared by CONSULTANT pursuant to this Agreement (“Instruments of Service”) shall become the exclusive property of the CITY after completion of CONSULTANT’s Services and payment is full of all monies due under this Agreement. Instruments of Service are not intended or represented to be suitable for reuse by the CITY or others on any other project. Any such use without the CONSULTANT’S prior written authorization shall be at the CITY’s sole risk and without liability to the CONSULTANT.

The CITY agres to waive and and all claims arising out of or related to the misuse, un authorized reuse, or use of incomplete Instruments of Service.

7. Insurance Requirements.
a. CONSULTANT shall pro cure and maintain , at its own cost, during the entire term of this Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Services, and the results of such work, by CONSULTANT, its agents, representatives, employees, or subcontractors. Insurance coverage shall be at least as broad as the following:
(1) Commercial General Liability. Insurance Services Office (“ISO”) Form CG 00 01 covering Commercial General Liability on an “occurrence” basis, including products and completed Resolution No. 2023-141
Exhibit "A"

Page 2 of 13 ends

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Item7.

Consulting Agreement (v1) - 3 - CAO: 2/16/2023
operations, property damage, bodily injury, and personal & advertising injury, with limits no less than $2,000,000 per occurrence and $4,000,000 general aggregate. (2) Automobile Liability. ISO Form CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired (Code 8) and non -owned autos (Code 9), with limits no less than $1,000,000 per accident for bodily injury and property damage, unless waived by the CITY and approved in writing by the CITY’s Risk and Safety Division. (3) Workers’ Compensation. Worker’s Compensation as requi red by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease.
(4) Professional Liability (Errors and Omissions) . Professional Liability ( Errors and Omissions) appropriate to CONSULTANT’s profession, with limits no less than $2,000,000 per occurrence or claim and $2,000,000 aggregate.
(5) If CONSULTANT maintains broader coverage and/or higher limits than the minimums otherwise required by this Agreement, the CITY requires and shall be entitled to the broader coverage and/or the higher limits maintained by CONSULTANT. b. Each insurance policy required by this Agreement must be acceptable to the City Attorney and shall meet the following requirements:
(1) Acceptability of Insurers. Insurance coverage must be provided by an insurer authorized to conduct business in the state of California with a current A.M. Best’ s rating of no less than A-: FSC VII, or as approved by the CITY.
(2) Additional Insured Status . Both the Commercial General Liability and the Automobile Liability policies must name the CITY (including its officials, officers, agents, employees, and voluntee rs) specifically as an additional insured under the policy on a separate endorsement page. The Commercial General Liability additional insured endorsement shall be at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38, and CG 20 37 if a later edition is used. The Automobile Liability endorsement shall be at least as broad as ISO Form CA 20 01.
(3) Primary Coverage. CONSULTANT’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the CITY, its officials, officers, agents, employees, and volunteers. Any insurance or self -insurance maintained by the CITY, its officials, officers, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it. (4) Notice of Cancellation . Each insurance policy shall provide that coverage shall not be canceled, except with prior written notice to the CITY. (5) Subcontractors. If applicable, CONSULTANT shall require and verify that all subcontractors m aintain insurance meeting all the requirements stated within this Agreement, and CONSULTANT shall ensure that the CITY (including its officials, officers, agents, employees, and volunteers) is an additional insured on any insurance required from a subcontractor.
(6) Waiver of Subrogation. CONSULTANT hereby grants to the CITY a waiver of any right to subrogation that any insurer of CONSULTANT may acquire against the CITY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this subsection shall apply regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer. Any Workers’ Compensation policy required by this Agreement shall be endorsed with a waiver of subrogation in favor of the CITY for Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 4 - CAO: 2/16/2023
all work performed by the CONSULTANT, its agents, representatives, employees, and subcontractors.
(7) Self-Insurance. CONSULTANT may, with the CITY’s prior written consent, fulfill some or all of the insurance requirements contained in this Agreement under a plan of self - insurance. CONSULTANT shall only be permitted to utilize such self -insurance if, in the opinion of the CITY, CONSULTANT’s (i) net worth and (ii) reserves for payment of claims of liability against CONSULTANT are sufficient to adequately compensate for the lack of other insurance coverage required by this Agreement. CONSULTANT’s utilization of self- insurance shall not in any way limit the liabilities assumed by CONSULTANT pursuant to this Agreement.
(8) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the CITY.
c. Verification of Coverage. At the time CONSULTANT executes this Agreement, CONSULTANT shall provide the CITY with ori ginal Certificates of Insurance including all required amendatory endorsements (or copies of the applicabl e policy language effecting the insurance coverage required by this Agreement), which shall meet all requirements under this Agreement. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this Agreement, at any time. d. Special Risks or Circumstances. The CITY reserves the right , at any point during the term of this Agreement, to modify the insurance requirements in this Agreement, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. e. No Limitation of Obligations. The insurance requirements in this Agreement, including the types and limits of insurance coverage CONSULTANT must maintain, and any approval of such insurance by the CITY, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed b y CONSULTANT pursuant to this Agreement, including but not limited to any provisions in this Agreement concerning indemnification. f. Failure to comply with any of the insurance requirements in this Agreement, including, but not limited to, a lapse in any required insurance coverage during the term of this Agreement, shall be a material breach of this Agreement . In the event that CONSULTANT fails to comply with any such insurance requirements in this Agreement, in addition to any other remedies the CITY may have, the CITY may, at its sole option, (i) immediately terminate this Agreement; or (ii) order CONSULTANT to stop work under this Agreement and/or withhold any payment that becomes due to CONSULTANT until CONSULTANT demonstrates compliance with the insuran ce requirements in this Agreement.

8. Indemnification, Duty to Defend, and Hold Harmless.
a. In accordance with Civil Code 2782.8, CONSULTANT (including CONSULTANT’s agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless the CITY, its officials, officers, and employees from and against any and all claims, demands, actions, causes of action, proceedings (including but not limited to legal and administrative proceedings of any kind), suits, fines, penalties, judgments, costs, liabilities, damages, or injuries, in law or equity, including reasonable attorney’s fees and court costs (collectively, “Claims”), to the extent caused by, arising out of, or in connection with the CONSULTANT’s negligent performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except where caused by the negligence or willful misconduct of the CITY. b. CONSULTANT (including CONSULTANT’s agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless the CITY, its officials, officers, and employees, from and against any and all Claims caused by, arising under, or resulting from any violation, or claim of violation, of the San Diego Municipal Storm Water Permit (Order No. R9 -2013-0001, as Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 5 - CAO: 2/16/2023
amended) of the California Regional Water Quality Control Board, Region 9, San Diego, to the extent caused by , arising out of, or in connection with the CONSULTANT’s negligent performance of the Services or its failure to comply with any of its obligations contained in this Agreement.
c. All terms and provisions within this Section 8 shall survive the termination of this Agreement.

9. Anti-Assignment Clause. Because the CITY has relied on the particular skills of CONSULTANT in entering into this Agreement, CONSULTANT shall not assign, delegate, subcontract, or otherwise transfer any duty or right under this Agreement, including as to any portion of the Services, without the CITY’s prior written consent. Any purported assignment, delegation, subcontract, or other transfer made without the CITY’s consent shall be void and ineffective . Unless CONSULTANT assigns this entire Agreement, including all rights and duties herein, to a third party with the CITY’s prior written consent, CONSULTANT shall be the sole payee under this Agreement. Any and all payments made pursuant to the terms of this Agreement are otherwise not assignable.

10. Attorney's Fees and Costs. In any action to enforce the terms and conditions of this Ag reement, the prevailing Party shall be entitled to reasonable attorney’s fees and costs.

11. Independent Contractor . CONSULTANT is an independent contractor , and no agency or employment relationship is created by the execution of this Agreement.

12. Amendment. This Agreement shall not be amended except in a writing signed by the CITY and CONSULTANT.

13. Merger Clause. This Agreement, together with its attachments or other documents described or incorporated herein, if any, constitutes the entire agreement and understanding of the CITY and CONSULTANT concerning the subject of this A greement and supersedes and replaces all prior negotiations, understandings, or proposed agreements, written or oral, except as otherwise provided herein. In the event of any conflict between the provisions of this Agreement and any of its attachments or related documents, if any, the provisions of this Agreement shall prevail.

14. Anti-Waiver Clause. None of the provisions of this Agreement shall be waived by the CITY because of previous failure to insist upon strict performance, nor shall any provision be waived because any other provision has been waived by the CITY, in whole or in part.

15. Severability. This Agreement shall be performed and shall be enforceable to the full extent allowed by applicable law, and the illegality, invalidity, waiver, or unenforceability of any provision of this Agreement shall not affect the legality, validity, applicability, or enforceability of the remaining provisions of this Agreement.

16. Governing Law. This Agreement and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. Venue for any action arising from this Agreement shall be conducted only in the state or federal courts of San Diego County, California.

17. Counterparts. This Agreement may be executed on separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by electronic means, including an attachment to an email, shall be effective as delivery of an executed original. The Agreement on file with the City is the copy of the Agreement that shall take precedence if any differences exist between or among copies or counterparts of the Agreement.

18. Provisions Cumulative. The foregoing provisions are cumulative to, in addition to , and not in limitation of any other rights or remedies available to the CITY.

Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 6 - CAO: 2/16/2023

19. Notice. Any statements, communications , or notices to be provided pursuant to this Agreement shall be sent to the attention of the persons indicated herein, and the CITY and CONSULTANT shall promptly provide the other Party with notice of any changes to such contact information.

20. Business License. CONSULTANT shall obtain a City of Escondido Business License prior to execution of this Agreement and shall maintain such Business License throughout the term of this Agreement.

21. Compliance with Laws, Permits, and Licenses. CONSULTANT shall keep itself informed of and comply with all applicable fede ral, state, and local laws, statutes, codes, ordinances , regulations, rules, and other legal requirements in effect during the term of this Agreement. CONSULTANT shall obtain any and all permits, licenses, and other authorizations necessary to perform the Services.

Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CON SULTANT to comply with this section.

22. Prevailing Wages . If applicable, pursuant to California Labor Code section 1770 et seq. , CONSULTANT agrees that a prevailing rate and scale of wages, in accordance with applicable laws, shall be paid in performing this Agreement. CONSULTANT shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes, code s, ordinances, regulations, rules, and other legal requirements pertaining to the payment of prevailing wages. The prevailing rate and scale to be paid shall be the same as the applicable “ General Prevailing Wage Determination” approved by the Department of Industrial Relations as of the Effective Date of this Agreement, which are available online at http://www.dir.ca.gov/oprl/dprewagedetermination.htm and incorporated into this Agreement by this reference . Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONSULTANT to comply with this section.

23. Department of Industrial Relations Compliance . This public project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. CONSULTANT shall pos t all job site notices required by regulation. CONSULTANT, as well as any subcontractors, shall be registered pursuant to California Labor Code section 1725.5 to be qualified to bid on, be listed in a bid proposal (subject to the requirements of Public Co ntract Code section 4104), or engage in the performance of any public works contract subject to the requirements of Division 2, Part 7, Chapter 1 of the California Labor Code. Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONSULTANT to comply with this section.

24. Immigration Reform and Control Act of 1986. CONSULTANT shall keep itself informed of and shall comply with the Immigration Reform and Control Act of 1986 (“IRCA”). CONSULTANT represents and warrants that all of its employees and the employees of any subcontractor retained by CONSULTANT who perform any of the Services under this Agreement, are and will be authorized to perform the Services in full compliance with the IRCA. CONSULTANT affirms that as a licensed contractor and employer in the State of California, all new employees must produce proof of eligibility to work in the United States within the first three days of employment and that only employees legally eligible to work in the United States will perform the Services. CONSULTANT agrees to comply with the IRCA before commencing any Services, and continuously throughout the performance of the Services and the term of this Agreement.

25. Effective Date. Unless a different date is provided in this Agreement, the effective date of this Agreement shall be the latest date of execution set forth by the names of the signatories below.

Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 7 - CAO: 2/16/2023

IN WITNESS WHEREOF, this Agreement is executed by the Parties or their duly authorized representatives as of the Effective Date:

CITY OF ESCONDIDO

Date: __________________ ___________________________________ Dane White, Mayor

HR GREEN PACIFIC, INC.

Date: __________________ ___________________________________ Timothy J. Hartnett, Vice President/Principal

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY
MICHAEL R. MCGUINNESS, CITY ATTORNEY

BY: __________________________

THE CITY OF ESCONDIDO DOES NOT DISCRIMINATE AGAINST QUALIFIED PERSONS WITH DISABILITIES.

Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 8 - CAO: 2/16/2023
ATTACHMENT “A”
Scope of Work

A. General

HR Green Pacific, Inc., a California corporation (“Consultant”) will provide the City of Escondido, a California municipal corporation (“City”) with consulting services related to engineering review services for an underground fiber optics deployment planned within City right of way by a telecommunications service provider.

B. Location

Consultant to provide services in relation to the Si Fi FiberCity network infrastructure project (“Project”). The Project provides a fiber optic network system within City right of way to serve all premises within the City limits of the City of Escondido consistent with the Right of Way Encroachment Agreement between the City, the State of California, and SiFi Networks Escondido LLC, dated December 13, 2022 , which is attached hereto as Exhibit A and incorporated by this reference.

C. Services

A total of 15 Project work zones are anticipated Citywide. A typical work zone consists of 250,000 linear feet of trench and 40 plan sheets. Two major “hut” facilities are anticipated at 30 plan sheets per location. A total of 60 cabinets are anticipated at approximately 10 plan sheets per location.

Ten traffic control plans per zone are also anticipated.

Engineering services provided under this Agreement for Phase I shall generally include but shall not be limited to:

1. Providing digital plan review comments on project plans in conformance with review checklist and additional plan review items developed by the review team;

2. Confirming appropriate plotting of and coordination with utilities;

3. Confirming adequate profiling and potholing of potential conflicts;

4. Coordinating with City staff on future planned projects in the area;

5. Providing comments to enhance the design considering constructability and phasing with the goal of minimizing community impacts, including recommended refinements to standards includedin the Right of Way Encroachment Agreement (Exhibit A);

6. Confirming compliance with the Right of Way Encroachment Agreement (Exhibit A);

7. Post review meeting with City staff after each review to discuss plan review comments;

8. Participate in meetings with the provider’s design engineer to resolve comments. Complete on- site preconstruction meetings with the Contractor performing the work; and

9. Assist with review of any design revisions made necessary during construction.

Phase II services, if approved, shall include providing one full time inspector for the estimated 670 day construction period.

D. Scheduling

Inquires relating to this Agreement, including scheduling and coordination with City staff, shall be directed to Jason Christman, Principal Civil Engineer, [email protected], and 760 -839- 4615.

The Consulant shall adhere to the schedule for review timelines included in Section 2.5 (Efficient Permitting Process) of Exhibit A, including timelines for acknowledgement of submittal (2 days), completeness comments (5 days), review comments (15 calendar days), and final approval/permit Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 9 - CAO: 2/16/2023
issuance (21 calendar days). At the conclusion of each plan review, a meeting with City staff to review each plan set and discuss any comments should be held before returning comments. The City reserves the right to make changes to the schedule with the prior written notice of Consultant.

E. Contract Price and Payment Terms

The contract price shall not exceed $683,980 for Phase I services. If approved by separate notice to proceed and an amendment of this Agreement, Phase II services in the sum of $927,045 may be authorized resulting in a total contract sum of $1,611,026. Consultant shall submit monthly invoices to the City, and the City shall pay Consultant for invoiced services within 30 days of receipt of an invoice. Consultant shall not bill the City for any transportation costs associated with travel to and from the Project site.

The service rates detailed in Exhibit B to this Scope of Work, which is attached hereto and incorporated by this reference, shall remain firm throughout the term of this Agreement.

F. Term

The term of of this Agreement shall be from the Effective Date through the date of Notice of Completion for the Project, which shall be filed by the City with the County of San Diego after all Project improvements and closeout documents are accepted by the City Engineer. Project completion is anticipated by December 2028.

Resolution No. 2023-141
Exhibit "A"

Page 9 of 13 ends

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Item7.

Consulting Agreement (v1) - 10 - CAO: 2/16/2023

EXHIBIT B
Rate Sheet and Estimated Total Fees

Phase I: Plan
Review

Work Zones @ 40 plan sheets each 1st Submittal 2nd Submittal 3rd Submittal $/Hour Hours Total Hours Total Hours Total
Engineering
Technician 105 1 105 3.5 367.5 3.5 367.5
Project Manager 225 3.5 787.5 0 0 3.5 787.5
Review Task Lead 210 8 1680 3.5 735 3.5 735
Traffic Control
Reviewer 220 5 1100 2.5 550 1 220
Reviewer 180 35 6300 17.5 3150 7 1260
Per Plan Set 52.5 9972.5 27 4802.5 18.5 3370

$ Hours

Total for Each
Plan Set
Review
18145 98

Post Review
Meeting
(Project
Manager and
Reviewer)
810 4
Total for Each
Work Zone: 18955 102
Total Work
Zones 15
Total for 15
Work Zones 284325 1530

Huts @ 30 plan sheets each 1st Submittal 2nd Submittal 3rd Submittal $/Hour Hours Total Hours Total Hours Total
Engineering
Technician 105 1 105 3.5 367.5 3.5 367.5
Project Manager 225 2.5 562.5 0 0 3.5 787.5
Review Task Lead 210 5.5 1155 3.5 735 3.5 735
Reviewer 180 27.5 4950 17.5 3150 7 1260
Per Plan Set 36.5 6772.5 24.5 4252.5 17.5 3150

Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 11 - CAO: 2/16/2023

$ Hours

Total for Each
Hut Plan Set
Review
14175 78.5

Post Review
Meeting
(Project
Manager and
Reviewer)
810 4
Total for Each
Hut: 14985 82.5
Total Huts 2
Total for 2
Huts 29970 165

Cabinets @ 10 plan sheets each 1st Submittal 2nd Submittal 3rd Submittal $/Hour Hours Total Hours Total Hours Total
Engineering
Technician 105 1 105 0.5 52.5 0.5 52.5
Project Manager 225 0.5 112.5 0 0 0.5 112.5
Review Task Lead 210 1 210 0.5 105 0.5 105
Reviewer 180 5 900 2.5 450 1 180
Per Plan Set 7.5 1327.5 3.5 607.5 2.5 450

$ Hours

Total for Each
Cabinet Plan
Set Review
2385 13.5

Post Review
Meeting
(Project
Manager and
Reviewer)
810 4
Total for Each
Cabinet: 3195 17.5
Total Cabinets 60
Total for 60
Cabinets 191700 1050

Total Estimated Fees for Plan
Review: 505995 2745

Other Services $ Hours
Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 12 - CAO: 2/16/2023
Review Exhibit B 8 hours Derek
Wieske 1760 8
Coordination with
City Staff
2 hours per
plan set x 15
sets
6600 15
Pre-Construction
Meetings
2 hours per
plan set x 15
sets
6600 15
Permit Compliance 1 hour/week x
156 weeks 34320 156
Inspection Oversight 1 hour/week x
585 weeks 128700 585
Total Estimated Other Services: 177980 779

Total Phase I: 683980 3524

Phase II:

Construction
Inspection
1 Full time
inspector

Inspector $1364/ Day
Mileage $19.65/Day
Total $1,383.65/Day

Estimated 670
Days Total Phase II: 927045.5 5360

Total All
Phases: 1611026 8884

Resolution No. 2023-141
Exhibit "A"

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Consulting Agreement (v1) - 13 - CAO: 2/16/2023
ATTACHMENT “B”
Personnel List

Pursuant to Section 4 of the Agreement, CONSULTANT shall only assign performance of Services to persons listed below.

Title Name Hourly Rate Email
Project Manager Tina York $225 [email protected]
Review Task Lead Ken Price $210 [email protected]
Reviewer Allen Peterson $180 [email protected]
Engineering Technician Kimberly Evans $105 [email protected] Asst Project Manager Mike Connor $220 [email protected] Traffic Control Reviewer Derek Wieske $220 [email protected] Reviewer Mohamed Woyareth $175 [email protected]
Lead Inspector Micheal Pfalmer $170.50 [email protected]

CONSULTANT shall not add or remove persons from this Personnel List without the City’s prior written consent. If CONSULTANT has not designated a person to perform a component of the Services, CONSULTANT shall not assign such component of the Services to a person without obtaining the City’s prior written consent. CONSULTANT shall not subcontract any component of the Services without obtaining the City’s prior written consent.

Acknowledged by:

Date: __________________ ___________________________________ Timothy J. Hartnett, President
Resolution No. 2023-141
Exhibit "A"

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STAFF REPORT

November 15, 2023
File Number 0600-10; A-3485

SUBJECT
MILLS ACT CONTRACT FOR 820 S. MAPLE STREET – PL23-0279

DEPARTMENT
Development Services Department, Planning Division

RECOMMENDATION
Request the City Council adopt Resolution No. 2023-154, authorizing the Mayor to execute, on behalf of the City of Escondido , a Historic Property Preservation Agreement (Mills Act Contrac t), with Israel Murguia and Melissa Garcia for the Property located at 820 S. Maple St.

Staff Recommendation: Approval (Development Services: Christopher McKinney, Deputy City Manager/ Director of Development Services)
Presenter: Alex Rangel, Assistant Planner I

FISCAL ANALYSIS
Approval of a Mills Act contract will reduce the property tax to the homeowner, and proportionately reduce the City’s share of property taxes. The annual tax revenue loss to the City of Escondido (“City”) is typically estimated to be approximately $200 for each property. The City currently has entered into 105 Mills Act contracts, which have cumulatively reduced the City share of property taxes by approximately $21,000. Approval of the new Mills Act contract identified above would further reduce the City’s share of property taxes by approximately $200.

PREVIOUS ACTION
The Historic Preservation Commission (“HPC”) voted 6-0 to list the structure identified above on the City’s Local Register of Historic Places and recommend approval of entering into the Mills Act contract with the owners on October 19, 2023.

BACKGROUND
The HPC reviewed the history and supporting documents for the subject property on October 19, 2023. A copy of the HPC Staff report is attached to this report (Attachment “ 1”). The Mills Act is a state law enabling owners of designated historic properties to enter into a preservation contract with their local legislative body and receive a substantial reduction in their property taxes. A Mills Act contract is valid for 135
Item8.

a minimum of ten years, and is automatically renewed each year unless a notice of non -renewal is filed by the property owner.

The terms of the co ntract require the property owner commit to maintaining the structure and surrounding property, as detailed in the Mills Act contract and its schedule of improvements, provided under the improvements schedule shown in Exhibit “B” of the draft contract which is included as Exhibit “A” to Resolution No. 2023-154. The HPC reviewed and recommended approval of these improvements to the City Council. The contract requires the property owner adhere to the Secretary of the Interior’s Standards for the listed improvements. City staff informed the property owners that all of the proposed modifications outlined in the Mills Act contract will require staff review at the time of the proposed improvement, to ensure compliance with the Mills Act contract and the City’s His toric Preservation Requirements.

RESOLUTIONS
a. Resolution No. 2023-154
b. Resolution No. 2023-154 Exhibit “A”

ATTACHMENTS
a. Attachment “1” – HPC Staff Report (PL23-0279)
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STAFF REPORT
October 19, 2023
Agenda Item No.: 2
REQUEST: A request to list the single-family residence at 820 S. Maple on the City of Escondido’s Local Register of Historic Places, and execution of a Mills Act Contract to assist the owners with future preservation.

PRESENTER: Alex Rangel, Development Technician II
ZONING/LOCATION: R-1-6 (Single Family Residential)/ 820 S. Maple St. (APN: 233-382-06-00) APPLICANT: Israel Murguia & Melissa Garcia

BACKGROUND
Local Register of Historic Places Listing:

Article 40, Section 33 -794 of the Escondido Zoning Code (“EZC”) identifies the process and criteria for listing historic resources on the City of Escondido’s Local Register. An application to list a property on the Local Register requires the Historic Preservation Commission to hold a public meeting to act on the request. City staff evaluate listing requests against seven criteria as outlined in Section 33-794(c) of the EZC. A listing request must meet at least two of the criteria to qualify for such listing.

Mills Act Contract and Property Application:

The Mills Act is a state law enabling owners of designated historic properties to enter into a preservation contract with their local legislative body and receive a substantial reduction in their property taxes. A property owner may apply for a Mills Act contract if their subject property is listed on the Local, State, or National Historic Register.

The applicant requests the single-family residence located at 820 S. Maple, more commonly referred to as the “Morris House”, be placed on the City’s Local Register of Historic Places, and enter into a Mills Act agreement. Application materials for this request are provided under Attachment 1 of this report.

The project site located at 820 S. Maple St. (APN 233 -382-06-00) is an approximately 7,000 square foot (“SF”) lot within the boundaries of the Old Escondido Neighborhood. The project site contains a 1,568 SF single-family residence constructed in the “Prairie Style Bungalow” architectural style, originally built by Charles and Ed Morris for their father, J.E. Morris, in 1925. The original residence was developed as a 2- bedroom, 1-bath bungalow with a detached garage in the rear of the property. In 1958, a 168 SF bedroom and bathroom addition was constructed on the rear of the property. In 1972, a covered entry patio was 8 Item 2.

Attachment "1"
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constructed complimentary to the “Prairie Style” architecture. I n 1978, a 230 SF kitchen addition was completed at the rear of the structure. No further significant improvements have been made to the primary structure, however routine maintenance has been performed throughout the y ears including the terraced landscaping in the front of the property in 1992, and a patio enclosure to the rear in 1966.

The Escondido Historic Society lists the property on Old Escondido West’s Walking Tour, item no. 21, as an example of the Prairie Styl e architecture. In 2009, the Old Escondido Neighborhood’s Mother’s Day Home Tour showcased the Morris House.

ANALYSIS
Historic Research and Review:

The applicant conducted historic research and data collection to support the criteria outlined in Section 33-794(c) of the EZC. The California Department of Parks and Recreation (“DPR”) form provided under Attachment 2 details the results of the research and data collection . The DPR form includes historic background on the residence and property, provides descriptive information of the architectural style , and details interior and exterior historical aspects of the residence. Based on the information provided within the DPR and its preparation by a historic preservation professional, the DPR form substantiates the residence meets minimum listing criteria. Additionally, staff conducted a review of available planning, building, and construction records from the City of Escondido and San Diego County Assessor/Recorder/Clerk which are provided under Attachment 3.

Local Register of Historic Places Listing:

The current owners, Israel Murguia and Melissa Garcia, request the property be placed on the City’s Local Register of Historic Places. Planning staff reviewed the provided research and documentation for the property, and conclude the property meets three of the seven required criteria to be placed on the Local Register, per Section 33-794(c) of the EZC, as stipulated below:

Criteria 2. Escondido building or buildings that embody distinguishing characteristics of an a rchitectural type, specimen, or are representative of a recognized architect’s work and are not substantially altered.

The residence is a notable example of a principal subtype of “Prairie” architecture identified in “A Field Guide to American Houses,” including a simple rectangular structural plan , low-pitched hipped roof, a symmetrical façade, and stucco siding. The property is the only prairie style bungalow within the Old Escondido Neighborhood, verified through the City’s Historic Resources Inventory Surveys completed in 1989 and 2001. Photographs of the residence and project site are provided under Attachment 4.

Criteria 5. Escondido historical resources that are fifty years old or have achieved historical significance within the past fifty years.
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Building permit records (Attachment 3) show the structure was originally constructed in 1925, making it 98 years old.

Criteria 6. Escondido historical resources that are an important key focal point in the visual quality or character of a neighborhood, street, area, or district.

The Escondido History Center, in conjunction with the Old Escondido Neighborhood District, assert the home as architecturally significant within the Old Escondido Neighborhood . The Old Escondido West’s Walking Tour of notable homes showcases the residence, and has for the past 5 years. The Old Escondido Mother’s Day Tour showcased the residence in their 2009 tour.

Mills Act Contract:

A Mills Act contract is valid for a minimum of ten years, and is automatically renewed each year unless a notice of non -renewal is filed by the property owner . The terms of the contract require the property owner commit to maintain ing the structure and surrounding property, as detailed in the Mills Act contract and its improvements schedule provided u nder Attachment 5 . The contract requires the property owner to adhere to the Secretary of the Interior’s Standards for the listed improvements. City staff informed the property owner/applicant that all of the proposed modifications outlined in the Mills Act contract will require staff review at the time of the proposed improvement , to ensure compliance with the Mills Act agreement and the City’s Historic Preservation requirements.

RECOMMENDATION: Approve the listing of the property located at 820 S. Maple on the City’s Local Register of Historic Places and recommend to City Council approval of a Mills Act contract for the property.

ATTACHMENTS:

1. Local Register, Mills Act Applications

2. Prepared DPR523 Form

3. City of Escondido Building Records, Residential Building Record

4. Site Photographs

5. Draft Mills Act Agreement

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Old Escondido West
Walking Tour

This 1.5-mile, 1-hour tour begins and ends
on the northwest corner of Broadway and
5th. The homes along the way are privately
owned; please respect the privacy of the
residents and refrain from stepping onto
private property unless invited. Photography
is allowed from public spaces, but please
ask permission before photographing
people on private property. There are no
public restrooms or drinking fountains on
the route.

This map is based on the OE East
Walking Tour found on the free
Explore Escondido app that can
be downloaded onto your mobile phone or
tablet. It provides additional, easily
accessed information and photos related to
each location, and alerts you when you have
reached a site.

Introduction
Escondido began as an agricultural
community and the homes you will see on
this tour range from somewhat large and
ornate to small and modest; however, all
were comfortable residences that housed
Escondido's first families; doctors, bankers,
homemakers, shop owners, barbers, and
blacksmiths.

As in many towns around the country, the
old area began to show its age in the
second half of the 20th century. When a
small group of determined homeowners and
historic preservationists got together, they
were able to have the area designated as
the City's first Historic District in 1992. Since
then, one by one, homes have been carefully
re-stored and now show great strides in
pride of ownership.

1. 5th and Broadway, Central School
Built in 1942, it is the oldest school still
standing in Escondido.

Proceed south to 6th

2. 102 W. 6th Ave., Carmichael
House A Craftsman-style bungalow, built in
1923. Charles & Mina Carmichael owned a
furniture store on Grand in the early 1900s.

Cross 6th

3. 105 W. 6th Ave., Churchill House
Craftsman-style single-story bungalow, built
in 1923 for Arthur and Mary Churchill.

Second story added and modified to
Colonial Revival style in the 1950s.

Cross Broadway

4. 103 E. 6th Ave., Hays House was
built in 1922 by Hiram C. and Sarah Hays. It
was designed to accommodate the owners'
son, Joseph, who was restricted to a
wheelchair.

5. 115 E. 6th Ave, Chubbic House
California Bungalow, built circa 1922 by
Benjamin and Ella Chubbic and moved into
its current location from 4th Ave. in May of
2006.

Continue east along 6th

6. 161 E. 6th Ave., Kemper House
Craftsman-style bungalow built in 1916 by
Francis M. Kemper, a retired Methodist
minister who went into the building and real
estate business, building many homes in
Escondido.

Turn right onto Kalmia and head toward 7th

7. 637 S. Kalmia St., Original horse
rings can still be found in curbs in the
historic area. The rings along Kalmia
secured horses ridden by parishioners
attending St. Mary's Catholic Church, which
was located on the slope across 7th
Avenue. The attractive Craftsman-style
house was built in 1910.

Cross 7th and head west

5 th Ave.

6 th Ave.

7 th Ave.

8 th Ave.

9 th Ave.

10 th Ave.

Juniper St.

Maple St.

Broadway

Kalmia St.

Broadway

11 th Ave.

Omar

Khayyam

Central
School
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
N
Grand Ave.

Downtown
Escondido Blvd.

4 th Ave.

8. 115 E. 7th Ave., Beers House
Craftsman style, built in 1911 for Herbert W.

Beers, president of the Escondido Hardware
Company and one term member of the City
Board of Trustees.

Head west to the corner of 7th and
Broadway

9. 710 S. Broadway, Hick House Two-
story Italianate style Victorian was built in
1887 by R.S. and Emeline Hick. Mr. Hick
was a former newspaper editor and attorney
who also served as a Senator in Kansas
1885 - 1886.

Cross Broadway and head west on 7th

10. 109 W. 7th Ave., Escher House
Italianate style Victorian built by Leo and
Caroline Escher in 1896. Mr. Escher was a
barber, who owned a barbershop on Grand.

Return to Broadway to climb the hill or, if the
hill on Broadway is too steep, continue along
7th and pick up the tour at the Culp House,
204 W. 8th

11. 730 S. Broadway, Thurlow House
Classic mid-century home in the American
International style was built by Leavitt
Thurlow, Jr. and his wife, Peggy in 1953.

The Thurlows survived the attack on Pearl
Harbor in 1941 when Leavitt served in the
Navy there.

Continue south on Broadway, turn right on
8th

12. 128 W. 8th Ave., Marikle House
Civic leader and real estate investor, John G.

Marikle built this Colonial Revival house in
early 1907. Marikle also owned a mortuary
on Kalmia off Grand and served as a
volunteer fireman. In the 1940s, the house
was owned by Escondido’s first paid fire
chief, Karl Peterson
Walk back to Broadway, almost to the
corner
Tour continued on next page

47 Item 2.

Attachment "1"
176
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OE East Walking Tour,
continued

13. 103 W. 8th Ave., Howell House
Built in 1887 with Eastlake and Second
Empire details by Henry Martin Voorhees.

The house was later purchased by Zora
Howell, part of a prominent pioneering
family in 1940s.

Turn right on Broadway and continue up the
hill

14. 831 S. Broadway, Haver House
Behind the more recently installed wrought
iron gate stands the mid-century modern
house built by architect Ralph in the early
1970s for his retirement. Haver was a prolific
architect in Arizona from 1945 until the early
1980s.

Look across Broadway

15. 828 S. Broadway, Stammer
House This Colonial Revival home was
built by Carl and Adeline Stammer in 1909.

The Stammers owned a local dairy. The
house later purchased by City Council
member William Kirk in in 1946 and former
Mayor Alan Skuba in 1974.

Look back across the street

16. 101 Khayyam, Johnson House
This Mid-century Ranch-style house was
built in 1976 by local contractor Wallace S.

Johnson.

Head east and turn right onto Omar. Turn
right onto 9th Avenue and head west to the
intersection. CAREFULLY cross 9th and
proceed south on Broadway to 10th and
head west.

17. 118 E. 10th Ave., Morris Brown
House This California Bungalow was built
in the late Craftsman style in 1920. C.O.

Morris is known to have lived here in 1923 In
1934, Thelma and George F. Schniepp lived
here and George was a foreman at the
Escondido Lemon Association. After the
lemon packing house closed in 1960,
Shniepp purchased the Hi-Fi Lounge at 905
Valley Blvd.

Continue west on 10th to the second house
from the end of the block

18. 146 W. 10th Ave., Hall House This
Craftsman-style house, with Tudor-style
elements, one of the largest houses in the
Historic District, was built in 1910 for Fred
Hall, vice president of the First National
Bank, and his wife Helen. Sadly, Hall was
murdered at his ranch east of town in 1923
by a disgruntled customer who mistook him
for another employee of the bank.

Look across 5th

19. 155 W. 10th Ave., Agnew House
This Mediterranean Revival style home was
built in 1928 by 32-year-old Carl Agnew and
his wife Frieda, owners of ALA Lumber Co.

In 1977, it was purchased by 19-year-old
Michael Crews, later to become a major
developer in the Escondido area; he and his
wife Julie resided there for four years.

Proceed west to the corner and look
diagonally across the intersection

20. 203 W. 10th Ave., Peterson
House All exterior walls of this 1920s
California bungalow are composed of blocks
of Escondido granite, measuring up to 17''
thick. An early owner was Karl Peterson,
who served as Escondido's first paid Fire
Chief. Another distinguished owner was Dr.

Charles Schroeder, the father of the San
Diego Wild Animal Park (now the Safari
Park).

Turn right onto Maple St. and head north
past 9th to mid-block

21. 820 S. Maple St., Morris House
This one-level Prairie-style bungalow was
built in 1925 by contractors Charles and Ed
Morris for the father, James, who bought the
land.

Continue north on Maple, cross 8th and
stop

22. 158 W. 8th Ave., Boudinot
House This Colonial Revival home, built c.
1905, may have been built by F.E. Boudinot.

In 1924, the house was sold to Theodore S.

Higley, who owned it for only two years -
just enough time for his daughter Ruth to
meet her future husband; handsome young
Martin Luther Culp Jr., who lived across
Maple St.

Look across Maple

23. 204 W. 8th Ave., Culp House This
Queen Anne-style house was built circa
1890 by Martin Luther Culp, known as
“Luther,” from Gettysburg, Pennsylvania.

Culp also served the City of Escondido as
City Marshal from 1910 - 1916.

Head north to 7th and look across the street

24. 221 W. 7th Ave., Former
Emmanuel Faith Church One of the
largest churches in Escondido, Emmanuel
Faith Community Church built the large
sanctuary visible at mid-block in 1941. In
1973, the congregation moved to a larger
location where the church stands today, on
17th at Encino.

Head east on 7th

25. 144 W. 7th Ave., Houghton
House A Mediterranean-style bungalow.

Willard and Venus Houghton purchased this
newly built house in 1934. Willard owned
and operated a feed business at 124 S.

Broadway for many years.

Return to Maple, head north to 6th, and
head east to mid-block

26. 134 W. 6th Ave., Jones-
Schmeltz House Built c. 1927 by William
E. Jones, caretaker for the Mutual Water
Company on land once owned by William
and Mary Schmeltz, to be later owned again
by Schmeltz family members.

Continue east to Broadway and turn left to
return to starting point at 5th and Broadway

An Explore Escondido Walking Tour Map
This map is provided by the
Escondido History Center and the
Old Escondido Historic District
for personal use only.

For more information, call 760-743-8207
or visit www.escondidohistory.org
or www.oldescondido.org

48 Item 2.

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177
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ATTACHMENT 2
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Property Photos
820 S. Maple Street
Escondido, CA 92025
View of front of house from Maple Street (looking east) ATTACHMENT 4
68 Item 2.

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View of front of house from Maple Street (looking south)

View of front of house from Maple Street (looking north)

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72 Item 2.

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201
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View of southerly side of house, adjacent to alley (looking west towards Maple Street)

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73 Item 2.

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74 Item 2.

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76 Item 2.

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205
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View of side of easterly side detached garage (looking south)

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View of side of house, driveway, and detached garage from alley (looking north)

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DRAFT
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RESOLUTION NO. 2023-154

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, AUTHORIZING THE MAYOR

TO EXECUTE, ON BEHALF OF THE CITY, A HISTORIC

PROPERTY PRESERVATION AGREEMENT, FOR THE
PROPERTY LOCATED AT 820 S. MAPLE ST

(CASE No. PL23-0279)
WHEREAS, the Mills Act is a state law enabling owners of designated historic properties to enter into a historic property preservation contract with their local legislative body and receive a property tax reduction; and
WHEREAS, Israel Murguia and Melissa Garcia submitted a n Application (“Application”) to enter into a Historic Property Preservation Agreement (“Agreement”) with the City of Escondido (“City”) for property located at 820 S. Maple St. (APN 233 -382-06-00), more particularly describe d in Exhibit “A” to this Resolution; and
WHEREAS, the Application was submitted to, and processed by, the Planning Division of the Development Services Department in accordance with the rules and regulations of the Escondido Zoning Code and the California Environmental Quality Act (Public Resources Code section 21000 et seq.) (“CEQA”); and
WHEREAS, the Planning Division studied the Application, performed necessary investigations, prepared a written report, and hereby recommends approval of the Agreement attached hereto as Exhibit "A"; and
WHEREAS, the property qualifies for the Agreement since it was approved by the Historic Preservation Commission to be listed in the Local Register of Historic Resources on October 19, 2023; and 216
Item8.

WHEREAS, the City Council desires at this time and deems it to be in the best public interest to approve the Agreement for the historic property located at 820 S. Maple St., as recommended by the Historic Preservation Commission on October 19, 2023; and WHEREAS, pursuant to 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 Project; and
WHEREAS, pursuant to the California Environmental Quality Act (“CEQA”) regulations, the project is categorically exempt from environmental review in accordance with CEQA Guidelines Section 15331, Class 31, “Historic Resources Restoration/Rehabilitation” in that the granting of t he request ensures maintenance and repair of a historical resource in a manner consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties.

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

1. That the above recitations are true.

2. That the Mayor is authorized to execute , on behalf of the City, a Historic Property Preservation Agreement with Israel Murguia and Melissa Garcia for the property located at 820 S. Maple St, which is attached to this Resolution as Exhibit “A” and incorporated by this reference, subject to final approval as to form by the City Attorney.
217
Item8.

CAO: 9/14/2021
Historic Property Preservation Agreement
1 EXEMPT FROM FEES pursuant to
Gov’t Code §§ 6103, 27383, and 27388.1
(filing requested/executed by municipality)

RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:

City Clerk
City of Escondido
201 North Broadway
Escondido, CA 92025
This Space for Recorder’s Use Only

HISTORIC PROPERTY PRESERVATION AGREEMENT
This HISTORIC PROPERTY PRESERVATION AGREEMENT (“ Agreement”) is made and entered into this _____ day of ____________________, 2023, by and between the City of Escondido, a California municipal corporation (“City”) and Israel Murguia and Melissa Garcia, Husband and Wife, (“Owners”). (The City and Owners may each be referred to herein as a “Party” and collectively as the “Parties.”)

RECITALS
A. The Owners possess and owns that certain real property located within the City as further described in Exhibit A to this Agreement, attached hereto and incorporated herein by this reference (“Property”).

B. The City and the Owners desire to enter into this Agreement to carry out the purposes of the Mills Act (California Government Code section 50280 et seq.) (“ Mills Act”) and California Revenue and Taxation Code sections 439 to 439.4.

C. The Property is a “qualified historical property,” as that term is defined under the Mills Act (“Qualified Historical Property”), in that the Property is privately owned, the Property is not exempt from property taxation, and the Property is listed in the City’s Local Register of Historic Places.

D. The Property is a “restricted historical propert y,” as that term is defined in Revenue and Taxation Code section 439.1.

E. The City and the Owner s desire to limit the use of the Property and to preserve the Property so as to retain its characteristics as a property of cultural, architectural, and historical significance.

Resolution No. 2023-154
Exhibit "A"

Page 1 of 11 ends

218
Item8.

CAO: 9/14/2021
Historic Property Preservation Agreement
2 AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants, promises, terms, and conditions set forth herein, and the substantial public benefits to be derived therefrom, the Parties hereby mutually agree as follows:

1. Recitals. The Recitals set forth above are included herein by reference as part of this Agreement and the Parties agree that said Recitals are essential facts to this Agreement.

2. Applicability of Government Code and Revenue and Taxation Code. This Agreement is made pursuant to the Mills Act and California Revenue and Taxation Code sections 439 to 439.4 and is subject to all of the provisions of these statutes.

3. Preservation/Rehabilitation and Maintenance of Property . During the term of this Agreement, the Property shall be subject to the following conditions, requirements, and restrictions:
a. The Owners agree to preserve/rehabilitate and maintain the cultural, historical, and architectural characteristics of the Property during the term of this Agreement as set forth in the Schedule of Improvements identified in Exhibit B to this Agreement, attached hereto and incorporated herein by this reference (“Schedule of Improvements”). b. The Owner s shall maintain all buildings, structures, yards, and other improvements in a manner that does not detract from the appearance of the immediate neighborhood.

Prohibited property conditions include, but are not limited to, all of the following:
(i.) dilapidated, deteriorating, or unrepaired structures, such as fences, roofs, doors, walls, and windows;
(ii.) scrap lumber, junk, trash, or debris;
(iii.) abandoned, discarded, or unused objects or equipment, such as automobiles, automobile parts, furniture, stoves, refrigerators, cans, containers, or similar items; (iv.) stagnant water or excavations, including swimming pools or spas; and (v.) any devi ce, decoration, design, structure, or vegetation that a reasonable person would determine to be unsightly by reason of its height, condition, or location. c. All improvements and work performed on the Property shall meet, at a minimum, the rules and regulatio ns of the Office of Historic Preservation of the California Department of Parks and Recreation, the United States Secretary of the Interior’s Standards for Rehabilitation, the California State Historical Building Code, and the applicable City laws and regulations pertaining to development.
d. If the City institutes a code enforcement action pertaining to the Property, the City may request, and the Owner s shall submit within 30 days of such request, documentation of expenditures incurred and work performed by t he Owner s within the previous 24 months to accomplish items from the Schedule of Improvements. If the Owners perform work on the Property, rather than contracting with a third party, the value of the Owner’s labor shall be calculated at the market rate fo r such work performed. The Owner s shall be in substantial compliance with the Resolution No. 2023-154
Exhibit "A"

Page 2 of 11 ends

219
Item8.

CAO: 9/14/2021
Historic Property Preservation Agreement
3 Schedule of Improvements when the expenditures incurred and work performed to accomplish the improvements are equal to or greater than the Owner’s annual property tax savings fo r the previous 24 months, as determined by the City, based upon the County Tax Assessor’s valuation of the Property using the process set forth in California Revenue and Taxation Code sections 439 to 439.4. e. The Owners shall, within 30 days after written notice from the City, furnish the City with any information the City shall require to enable the City to determine (i) the Property’s present state, (ii) the Property’ s continued eligibility as a Qualified H istorical Property, and (iii) whether the Owners are in compliance with this Agreement. __________ OWNER’S INITIALS

4. Inspections. The Owners agree to permit periodic examinations and inspections of the interior and exterior of the Property by the City, the County Assessor, the State Department of Parks and Recreation, and the State Board of Equalization, as may be necessary to determine the Owner’s compliance with this Agreement. After five years, and every five years thereafter, the City shall inspect the Property, including the interior and exterior of the premises, to determine the Owner’s continued compliance with this Agreement.
__________ OWNER’S INITIALS

5. Term. This Agreement shall be effective and shall commence on January 1 of the year following the successful recordation of this Agreement by the San Diego County Recorder’s Office and shall remain in effect for a period of 10 years thereafter.

6. Renewal.

6.1. Automatic Renewal. On the 10th anniversary of this Agreement and on each successive anniversary date (“Renewal Date”), a period of one year shall automatically be added to the initial term of this Agreement unless a Party gives a notice of nonrenewal as provided in this Agreement.

6.2 Notice of Nonrenewal . If, in any year, a Party desires not to renew this Agreement, such Party shall serve a written notice of nonrenewal on the other Party. If the Owner s elect to serve a notice of nonrenewal, the not ice must be served on the City at least 90 days prior to the Renewal Date, or else a period of one additional year shall automatically be added to the term of this Agreement. Conversely, if the City elects to serve a notice of nonrenewal, the notice must be served on the Owners at least 60 days prior to the Renewal Date, or else a period of one additional year shall automatically be added to the term of this Agreement. The City may issue a notice of nonrenewal if the City determines improvements, maintena nce, rehabilitation, renovation, or restoration of the Property is required for the Property’s continued eligibility as a Qualified Historical Property. Upon receipt by the Owner s of a notice of nonrenewal from the City, the Owner s may make a written prot est of such nonrenewal. The City may, at any time prior to the Renewal Date, withdraw its notice of nonrenewal.

6.3 Effect of Notice of Nonrenewal. If, in any year, either Party serves a notice of nonrenewal as provided in this Agreement, this Agreement shall remain in effect for (i) the balance of the period remaining under the initial term of this Agreement, or (ii) the balance of the period remaining since the last renewal of this Agreement, as the case may be.

Resolution No. 2023-154
Exhibit "A"

Page 3 of 11 ends

Escondido City CouncilNovember 15, 2023

Escondido City Council
November 15, 2023