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complete without formal acceptance by the City Council so long as the City Council, at its next regularly scheduled meeting, accepts the Work.
B. CONTRACTOR shall not be charged for liquidated damages, as set forth above, because of any delays in completion of Work which are not the fault or negligence of CONTRACTOR, including but not restricted to acts of God, as long as CONTRACTOR informs City of such events. As soon as CONTRACTOR become aware of any delay and no later than 14 days from the commencement of the delay, CONTRACTOR shall notify the City in writing of causes of delay in accordance with the contract scheduling specifications. CONTRACTOR shall provide documentation and justification to substantiate the delay and its relation to the Project's critical path. Extension of time shall apply only to that portion ofWork affected by the delay, and shall not apply to other portions of Work not so affected.
ARTICLE 13 - INSPECTIONS AND TESTS; CORRECTION, REMOVAL, OR ACCEPTANCE
OF DEFECTIVE WORK
13.1 AUTHORITY OF INSPECTOR. Any Work performed by the CONTRACTOR upon the instructions or comments by the Inspector may be confirmed by the CONTRACTOR, at the CONTRACTOR's option, in writing by the City. Any extra Work performed without the written instruction of the City shall be at CONTRACTOR's sole cost and expense and there will be no delay damages incurred by City for such Work.
13.2 INSPECTION. No Work shall be carried on except with the knowledge of the Inspector(s). The Inspector shall have free access to any or all parts of Work at any time. CONTRACTOR shall furnish Inspector reasonable opportunities for obtaining such information as may be necessary to keep Inspector fully informed respecting progress and manner of Work and character of materials. Inspection of Work shall not relieve CONTRACTOR from any obligation to fulfill the Project Documents. Inspector shall have authority to stop Work whenever provisions of Project Documents are not being complied with and such noncompliance is discovered. CONTRACTOR shall instruct its employees accordingly.
13.3 NOTICE OF DEFECTIVE Work. Prompt notice of Defective Work known to the City will be given to the CONTRACTOR. Defective Work discovered or uncovered will be noticed to the CONTRACTOR as soon as practicable. All Defective Work, whether or not in place, may be rejected, corrected, or accepted as provided in this Article 13. Defective Work may be rejected even if approved by prior inspection.
13.4 ACCESS TO WORK. The City, Engineer, their consultants, subconsultants, other representatives and personnel of the City, independent testing laboratories, and governmental agencies with jurisdictional interests shall have access to the Work at reasonable times for their observation, inspecting, and testing. CONTRACTOR shall provide them proper and safe conditions for such access, including sheeting and shoring as may be necessary, and advise them of CONTRACTOR's Site safety procedures, and programs so that they may comply therewith as applicable.
13.5 INSPECTIONS AND TESTS
A. The CONTRACTOR shall give the City not less than 2 working days notice of readiness of the Work for all required general inspections, tests, or approvals, and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. Specialty inspections shall be scheduled 7 days in advance.
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B. The City shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents except:
1. For inspection, tests, or approvals covered by Articles 13.5.C. and 13.5.D. below;
2. That costs incurred in connection with tests or inspections conducted pursuant to Article 13.5.G. shall be paid for by the CONTRACTOR.
C. If Laws and Regulations of any public body having jurisdiction require any Work (or any part thereof) to be inspected, tested, or approved by an employee or other representative of such public body, CONTRACTOR shall assume full responsibility for arranging and obtaining such inspections, tests or approvals; pay all costs in connection therewith; and furnish the City the required certificates of inspection or approval.
D. The CONTRACTOR shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for the City's acceptance of materials or equipment to be incorporated in the Work or acceptance of materials, mix designs, or equipment submitted for approval prior to the CONTRACTOR's purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to the City.
E. The City will make, or have made, such inspections and tests as the City deems necessary to see that the Work is being accomplished in accordance with the requirements of the Contract Documents. Unless otherwise specified in the Supplementary General Conditions, the cost of such inspection and testing will be borne by the City. In the event such inspections or tests reveal non-compliance with the requirements of the Contract Documents, the CONTRACTOR shall bear the cost of corrective measures deemed necessary by the City, as well as the cost of subsequent reinspection and retesting. Neither observations by the Engineer nor inspections, tests, or approvals by others shall relieve the CONTRACTOR from the CONTRACTOR's obligation to perform the Work in accordance with the Contract Documents.
F. If any Work that is to be inspected, tested, or approved is covered without written concurrence of the City, it must, if requested by the City, be uncovered for observation.
Such uncovering shall be at the CONTRACTOR's expense.
G. If any Work is covered contrary to the written request of the City, it must, if requested by the City, be uncovered for the City's observation and recovered at the CONTRACTOR's expense.
H. If the City considers it necessary or advisable that covered Work be observed by the City or inspected or tested by others, the CONTRACTOR, at the City's request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as the City may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. If it is found that such Work is Defective Work, the CONTRACTOR shall bear all direct, indirect, and consequential costs and damages of such uncovering, exposure, observation, inspection, and testing and of satisfactory reconstruction, including but not limited to, fees and charges of engineers, architects, attorneys, and other professionals.
However, if such Work is not found to be Defective Work, the CONTRACTOR will be allowed an increase in the Contract Price, directly attributable to such uncovering, exposure, observation, inspection, testing, and reconstruction; and, if the parties are unable to agree as to the amount or extent thereof, the CONTRACTOR may make a request for additional compensation therefore as provided in Articles 10, 11 and 12.
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I. All initial tests shall be performed under the direction of the City. All re-testing due to failure shall be performed under the direction of the City, and the cost of all re-testing shall be borne by the CONTRACTOR. The costs and potential loss of productivity to accommodate re-testing shall be borne by the CONTRACTOR.
J. A City Inspector, or designee, may be required on the job site at all times Work is in progress as determined by the City. Inspection will be required by the appropriate agency for the following type of Work: trenching, special or sand bedding, laying pipe, any welding, backfill, compaction and pavement replacement. Special Work hours required by the Contract are considered normal hours.
13.6 THE CITY MAY STOP THE WORK. If Defective Work is identified, the City may order the CONTRACTOR to stop performance of the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the City to stop the Work shall not give rise to any duty on the part of the City to exercise this right for the benefit of the CONTRACTOR or any other party.
13.7 CORRECTION OR REMOVAL OF DEFECTIVE WORK. If required by the City, the CONTRACTOR shall promptly either correct all Defective Work, whether or not fabricated, installed, or completed, or, if the Work has been rejected by the Engineer, remove it from the Site and replace it with non-defective Work. The CONTRACTOR shall bear all direct, indirect, and consequential costs and damages of such correction or removal, including but not limited to fees and charges of engineers, architects, attorneys, and other professionals made necessary thereby.
13.8 ACCEPTANCE OF DEFECTIVE WORK. If, instead of requiring correction or removal and replacement of Defective Work, the City prefers to accept the Defective Work, the City may do so.
The CONTRACTOR shall bear all direct, indirect, and consequential costs attributable to the City's evaluation of and determination to accept such Defective Work. If any such acceptance occurs prior to final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and the City shall be entitled to an appropriate decrease in the Contract Price.
13.9 THE CITY MAY CORRECT DEFECTIVE WORK
A. If the CONTRACTOR fails within a reasonable time after written notice from the City to correct Defective Work, or to remove and replace Defective Work as required by the City in accordance with Article 13.7, or if the CONTRACTOR fails to perform the Work in accordance with the Contract Documents, or if the CONTRACTOR fails to comply with any other provision of the Contract Documents, the City may, after 7 days written notice to the CONTRACTOR, correct and remedy any such deficiency.
B. In exercising the rights and remedies under this paragraph, the City shall proceed with corrective and remedial action. In connection with such corrective and remedial action, the City may exclude the CONTRACTOR from all or part of the Site, take possession of all or part of the Work, and suspend the CONTRACTOR's services related thereto and incorporate in the Work all materials and equipment for which the City has paid the CONTRACTOR whether stored at the Site or elsewhere. The CONTRACTOR shall provide the City, City's representatives, Engineer, and Engineer's consultants access to the Site to enable the City to exercise the rights and remedies under this Article.
B. All direct, indirect, and consequential costs and damages incurred by the City in exercising the rights and remedies under this paragraph will be charged against the CONTRACTOR and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and the City shall be entitled to an appropriate City of Escondido GENERAL CONDITIONS
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decrease in the Contract Price. If the parties are unable to agree as to the amount of the adjustment, the City may make a claim therefore as provided in Article 11. Such claim will include, but not be limited to, all costs of repair or replacement of Work of others, destroyed or damaged by correction, removal, or replacement of CONTRACTOR's Defective Work and all direct, indirect, and consequential damages associated therewith.
D. The CONTRACTOR shall not be allowed an extension of Contract Times (or Milestones) because of any delay in the performance of the Work attributable to the exercise by the City of the City's rights and remedies under this paragraph.
13.10 CORRECTION PERIOD
A. The correction period for Defective Work shall be the longer of:
1. One year after the date of final acceptance;
2. Such time as may be prescribed by Laws and Regulations;
3. Such time as specified by the terms of any applicable special guarantee required by the Contract Documents; or
4. Such time as specified by any specific provision of the Contract Documents.
B. If, during the correction period as defined in Article 13.10A above, any Work is found to be Defective Work, the City shall have the same remedies as set forth in Articles 13.7, 13.8, and 13.9 above.
C. Where Defective Work (and damage to other Work resulting therefrom) has been corrected, removed, or replaced under this paragraph, the correction period hereunder with respect to such Work will be extended for an additional period of 1 year after such correction or removal and replacement has been satisfactorily completed.
ARTICLE 14 - PAYMENTS TO CONTRACTOR, RETENTION AND COMPLETION
14.1 APPLICATION FOR PROGRESS PAYMENT
A. On the 25th of each month, the CONTRACTOR shall submit to the City for review, the Application for Payment filled out and signed by the CONTRACTOR covering the Work completed as of the date of the Application for Payment and accompanied by the appropriate waiver(s) and release upon "Progress Payment" and such supporting documentation as is required by the Project Documents.
B. The Application for Payment shall identify, as a subtotal, the estimated amount of the CONTRACTOR total earnings to date; plus the value of materials stored at the Site, pursuant to Article 14.1.K, which have not yet been incorporated in the Work; and less a deductive adjustment for materials installed which were not previously incorporated in the Work, but for which payment was allowed under the provisions for payment for materials stored at the Site, but not yet incorporated in the Work.
C. The net payment due the CONTRACTOR shall be the above-mentioned subtotal from which shall be deducted five percent (5%) retention and the total amount of all previous payments made to the CONTRACTOR. The City shall have the right to issue joint checks to CONTRACTOR and SUBCONTRACTOR and/or Suppliers.
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D. Work completed as estimated shall be an estimate only and no inaccuracy or error in said estimate shall operate to release CONTRACTOR or Surety from any damages arising from such Work or from enforcing each and every provision of this Agreement, and the City shall have the right subsequently to correct any error made in any estimate for payment.
E. CONTRACTOR SHALL NOT BE ENTITLED TO HAVE ANY PAYMENT
ESTIMATES PROCESSED OR BE ENTITLED TO HAVE ANY PAYMENT FOR
WORK PERFORMED SO LONG AS ANY LAWFUL OR PROPER DIRECTION
CONCERNING WORK, OR ANY PORTION THEREOF, GIVEN BY THE CITY OR ENGINEER SHALL REMAIN UNCOMPLIED WITH BY THE CONTRACTOR.
F. The City has discretion to require from the CONTRACTOR any of the following information with the application for payment:
1. Certified payroll covering the period of the prior application for payment;
2. Unconditional waivers and releases from all Subcontractors/suppliers for which payment was requested under the prior application(s) for payment;
3. Receipts or bills of sale for any items.
4. Signature of the Inspector, confirming that the maintenance of the Record Drawings is being kept up-to-date, and that the Record Drawings are not being used as a construction set.
G. NO PAYMENT BY THE CITY HEREUNDER SHALL BE INTERPRETED TO IMPLY
THAT THE CITY HAS INSPECTED, APPROVED, OR ACCEPTED ANY PART OF THE WORK. The final payment of 5% of the value of the Work done under this Agreement, if unencumbered, shall be made within 55 days after the City records the Notice of Completion. ACCEPTANCE WILL BE MADE ONLY BY ACTION OF THE ESCONDIDO CITY COUNCIL.
H. Payments for Change Order items can be included into the monthly progress payments, only after the Change Order has been fully executed and approved by the CITY and the CONTRACTOR, and only to the extent that Change Order Work has been performed.
I. The value of materials stored at the Site shall be an amount based upon the value of all acceptable materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing; provided, each such individual item has a value of more than $5,000 and will become a permanent part of the Work. The Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that the CONTRACTOR has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect the City's interest therein, all of which will be satisfactory to the City.
J. Unless otherwise provided, on or before making request for final payment of the undisputed amount due under the Agreement, CONTRACTOR shall submit to the City, in writing a summary of all claims for compensation under or arising out of this Agreement which were timely submitted. The acceptance by CONTRACTOR of the payment of the final amount shall constitute a waiver of all claims against the City under or arising out of this Agreement, except those previously made, in a timely manner and in writing, and identified by CONTRACTOR as unsettled at the time of CONTRACTOR's final request for payment.
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K. Materials included in the progress payments shall be stored properly and protected as required to prevent damage, including but not limited to, rust, dents, scratches, and decay.
Materials stored on-site and subject to payment, shall be gated and secured to prevent theft and/or vandalism. When the CONTRACTOR requests payment for materials not incorporated in the Work, the following terms and conditions shall apply:
1. For permanent materials delivered to the project site, or stored in an approved location off-site, an allowance of one-hundred percent (100%) of the material costs plus freight charges as invoiced may be made. The allowance will be base upon validated invoices or bills for such materials, including freight charges, and a copy thereof shall be made a part of the documented records for the project. All permanent materials approved for payment will have been tested by the City for compliance with the requirements of the Project Documents. Payment will only be made for permanent materials that conform to the requirements of the Project Documents.
2. No allowance shall be made for fuels, form lumber, falsework, temporary structures or other materials of any kind that will not become an integral part of the finished contraction.
3. All permanent materials, for which an allowance is requested, shall be stored in an approved manner where damage is not likely to occur. If any of the stored materials are lost or become damaged in any manner, CONTRACTOR shall be responsible for repairing or replacement of such damaged materials. The value of the lost or damaged materials shall be deducted from the CONTRACTOR's subsequent progress payments until replacement has been accomplished.
4. Permanent materials, for which payment has been made, either wholly or partially, shall not be removed from the approved location until such time that it is incorporated into the Work, unless approved by the City and/or the Engineer.
5. The following must accompany the written request for payment of stored materials:
a. Consent of the Surety specifying the material type and the bid items in which the material is to be used.
b. Validating invoices showing that payment for the material has been made. c. A written statement from CONTRACTOR attesting that the invoices, as submitted do not include charges and/or fees for placing, handling, erecting or any other charges and/or markups other than the actual material cost, sales tax if applicable, and freight charges.
d. Bill of lading showing delivery of the material.
e. Inspection test reports, and certifications if required by the Contract Documents.
f. CONTRACTOR shall obtain a negotiable warehouse receipt, endorsed over to the City for materials and/or equipment stored in an off-site warehouse.
g. Certificate of insurance clearly indicating that the materials or equipment is fully insured against theft, fire, vandalism, malicious mischief, as well as other coverage required under the Project Documents.
6. City of Escondido
January 2017
Nothing in these General Conditions shall be interpreted as requiring the City to pay for stored materials. The City shall decide on a case-by-case basis whether stored materials can be paid for. Some factors the City will consider are:
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CONTRACTOR'S ability to meet the Project Schedule and milestones, the effectiveness of CONTRACTOR'S quality control plan, how record drawings are being maintained and kept up, the status of the material submittals, and the on going cleanliness of the Project and the Project Site. No payment will be made for stored materials that have not been submitted and accepted.
7. If the permanent materials are stored off-site, CONTRACTOR must pay the City's representative's transportation and lodging to see the permanent materials.
8. Full title to the materials and/or equipment shall vest with the City at the time of delivery to the site, warehouse or other storage location.
14.2 UNIT PRICE BID SCHEDULE. Progress payments on account of unit price Work will be based on the number of units completed as determined by the City and/or its representative.
14.3 SCHEDULE OF VALUES (LUMP SUM PRICE BREAKDOWN)
A. CONTRACTOR shall furnish on a form approved by the City:
1. Within 10 days of award of the contract and commensurate with the specification section entitled CONSTRUCTION SCHEDULES, provide a detailed preliminary estimate giving a complete breakdown of contract price for each area of the project and/or site, which shall include all Subcontractor/supplier agreements showing the dollar amounts of these agreements to justify the schedule of values, and showing separate line items for the material cost(s) and installation cost(s).
2. A periodical itemized estimate of Work done for purpose of making partial payments thereon, that is until the cost loaded CPM construction schedule has been developed (if required by the Contract).
3. Within 10 days of a request by City, a schedule of estimated monthly payments which shall be due CONTRACTOR under the Agreement.
B. Values employed in making up any of these schedules are subject to the City's written approval and will be used only for determining the basis of partial payments and will not be considered as fixing a basis for additions to or deductions from contract price.
1. Unless otherwise agreed in writing, payment for CONTRACTOR's mobilization costs shall be cost loaded as follows:
Mobilization Payment Schedule
Upon Mobilization 50% of Mobilization item may be billed for bonding, insurance and yard set-up costs
25% 10% of Mobilization item may be billed
50% 10% of Mobilization item may be billed
75% 10% of Mobilization item may be billed
100% (clean up completed) 20% remaining to pay for de mobilization
14.4 ALLOWANCES
A. The following costs shall be included in all allowances;
1. Cost of the product to CONTRACTOR or Subcontractor, less applicable trade discounts.
2. Delivery to the site.
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3. Applicable taxes.
B. CONTRACTOR costs included in the Contract Sum include, but are not limited to;
1. Arrangement of product(s) shipping and handling at site, including unloading, uncrating, and storage.
2. Protection of products from the elements and from damage.
3. Labor for installation, adj ustments and finishing products.
4. Product warranties.
5. Scheduling changes and updates.
6. Other expenses required to complete installation.
7. CONTRACTOR and Subcontractor(s) overhead and profit.
C. The adjustments in costs will be made if the net cost is more or less than the specified amount of the allowance. The net cost of the adjustment shall be the amount of the difference between the specified allowance and the actual cost of the material, with the exception of a not-to-exceed fifteen percent (15%) mark-up for overhead and profit. The Contract Sum will be adjusted by Change Order.
1. Submit any claims for anticipated additional costs, or other expenses caused by the selection of the allowance, prior to execution of the Work.
2. Submit documentation for actual additional costs, or other expenses caused by the selection the allowance, prior to execution of the Work.
3. Failure to submit claims within the designated time will constitute a waiver of claims for additional costs.
D. City may separately bid the materials, subject to the specified allowances. The successful bidder will be assigned to CONTRACTOR, and shall be considered a Subcontractor to the CONTRACTOR. Upon assignment, the CONTRACTOR shall all make the necessary submittals, prepare necessary shop drawings and coordinate all related Work.
CONTRACTOR shall make all necessary adjustments and revisions to the Project Schedule for such allowances and Subcontractor assignments.
14.5 WAIVER, CONDITIONAL RELEASE, RELEASE OF CLAIMS
A. Commensurate with the statutes of Public Contract Code section 7100 et seq., provisions in public works contracts with public entities which provide that acceptance of a payment otherwise due a CONTRACTOR is a waiver of all claims against the public entity arising out of the Work performed under the contract or which condition the right to payment upon submission of a release by the CONTRACTOR of all claims against the public entity arising out of performance of the public Work are against public policy and null and void.
This section shall not prohibit a public entity from placing in a public works contract and enforcing a contract provision which provides that payment of undisputed contract amounts is contingent upon the CONTRACTOR furnishing the public entity with a release of all claims against the public entity arising by virtue of the public works contract related to those amounts. The CONTRACTOR from the operation of the release may specifically exclude disputed contract claims in stated amounts.
B. Neither the City nor original CONTRACTOR by any term of their contract, or otherwise, shall waive, affect, or impair the claims and liens of other persons whether with or without notice except by their written consent, and any term of the contract to that effect City of Escondido GENERAL CONDITIONS
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shall be null and void. Any written consent given by any claimant pursuant to this subdivision shall be null, void, and unenforceable unless and until the claimant executes and delivers a waiver and release. Such a waiver and release shall be binding and effective to release the City, construction lender, and surety on a payment bond from claims and liens only if the waiver and release follows substantially one of the forms set forth in this section and is signed by the claimant or his or her authorized agent, and, in the case of a conditional release, there is evidence of payment to the claimant. Evidence of payment may be by the claimant's endorsement on a single or joint payee check that has been paid by the bank upon which it was drawn or by written acknowledgment of payment given by the claimant.
C. No oral or written statement purporting to waive, release, impair or otherwise adversely affect a claim is enforceable or creates any estoppel or impairment of a claim unless:
1. It is pursuant to a waiver and release prescribed herein, or
2. The claimant had actually received payment in full for the claim.
D. This section does not affect the enforceability of either an accord and satisfaction regarding a bona fide dispute or any agreement made in settlement of an action pending in any court provided the accord and satisfaction or agreement and settlement make specific reference to the, stop notice, or bond claims.
E. The waiver and release given by any claimant hereunder shall be null, void, and unenforceable unless it follows substantially the following forms in the following circumstances. Each waiver in this provision shall contain the following language, in at least as large a type as the largest type otherwise on the document:
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1. Where the claimant is required to execute a waiver and release in exchange for, or in order to induce the payment of, a progress payment and the claimant is not, in fact, paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the form:
CONDITIONAL WAIVER AND RELEASE UPON "PROGRESS PAYMENT"
Upon receipt by the undersigned of a check from:
(Maker of Check)
in the sum of $ payable to:(Amount of Check)
(Payee or Payees of Check)
and when the check has been properly endorsed and has been paid by the bank upon which it is drawn, this document shall become effective to release any mechanic's lien, stop notice, or bond right the undersigned has on the job of
located at:
(CITY) (Job Description)
to the following extent. This release covers a progress payment for labor, services, equipment, or material furnished to
through:
(Your Customer) (Date)
only and does not cover any retention's retained before or after the release date; extras furnished before the release date for which payment has not been received; extras or items furnished after the release date.
Rights based upon Work performed or items furnished under a written change order which has been fully executed by the parties prior to the release date are covered by this release unless specifically reserved by the claimant in this release. This release of any mechanic's lien, stop notice, or bond right shall not otherwise affect the contract rights, including rights between parties to the contract based upon a rescission, abandonment, or breach of the contract, or the right of the undersigned to recover compensation for furnished labor, services, equipment, or material covered by this release if that furnished labor, services, equipment, or material was not compensated by the progress payment. Before any recipient of the document relies on it, said party should verify evidence of payment to the undersigned. (Company Name) (Date)
By:
(Title)
Exclusions: Listing of Claims, of which Notice has been given:
1. Claim for: In the amount of: $
2. Claim for: In the amount of: $
3. Claim for: In the amount of: $
4. Claim for: In the amount of: $
5. Claim for: In the amount of: $
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2. Where the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a progress payment and the claimant asserts in the waiver it has, in fact, been paid the progress payment, the waiver and release shall follow substantially the following form:
UNCONDITIONAL WAIVER AND RELEASE UPON "PROGRESS PAYMENT" The undersigned has been paid and has received a progress payment in the sum of $for labor, services, equipment, or material furnished to
(Your Customer)
on the job of: located at:
(CITY) (Job Description)
and does hereby release any mechanic's lien, stop notice, or bond right that the undersigned has on the above referenced job to the following extent. This release covers a progress payment for labor, services, equipment, or materials furnished to
through:
(Your Customer) (Date)
only and does not cover any retention's retained before or after the release date; extras furnished before the release date for which payment has not been received; extras or items furnished after the release date.
Rights based upon Work performed or items furnished under a written change order which has been fully executed by the parties prior to the release date are covered by this release unless specifically reserved by the claimant in this release. This release of any mechanic's lien, stop notice, or bond right shall not otherwise affect the contract rights, including rights between parties to the contract based upon a rescission, abandonment, or breach of the contract, or the right of the undersigned to recover compensation for furnished labor, services, equipment, or material covered by this release if that furnished labor, services, equipment, or material was not compensated by the progress payment. (Company Name) (Date)
By:
(Title)
Exclusions: Listing of Claims, of which Notice has been given:
1. Claim for:
2. Claim for:
3. Claim for:
4. Claim for:
5. Claim for:
In the amount of: $
In the amount of: $
In the amount of: $
In the amount of: $
In the amount of: $
"NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT
IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL RELEASE FORM."
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3. Where the claimant is required to execute a waiver and release in exchange for, or in order to induce the payment of, a final payment and the claimant is not, in fact, paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the form:
CONDITIONAL WAIVER AND RELEASE UPON "FINAL PAYMENT"
Upon receipt by the undersigned of a check from
in the sum of $ payable to:
and when the check has been properly endorsed and has been paid by the bank upon which it is drawn, this document shall become effective to release any mechanic's lien, stop notice, or bond right the undersigned has on the job of
located at:
(CITY) (Job Description)
This release covers the final payment to the undersigned for all labor, services, equipment, or material furnished on the job, except for disputed claims for additional Work in the amount of $
Before any recipient of this document relies on it, the party should verify evidence of payment to the undersigned.
(Company Name) (Date)
By:
(Title)
Exclusions: Listing of Claims, of which Notice has been given:
1. Claim for: In the amount of: $
2. Claim for: In the amount of: $
3. Claim for: In the amount of: $
4. Claim for: In the amount of: $
5. Claim for: In the amount of: $
City of Escondido
January 2017
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Exhibit A
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4. Where the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a final payment and the claimant asserts in the waiver it has, in fact, been paid the final payment, the waiver and release shall follow substantially the form:
UNCONDITIONAL WAIVER AND RELEASE UPON "FINAL PAYMENT"
The undersigned has been paid in full for all labor, services, equipment or material furnished to:
(Y our Customer)
on the job of: located at:
(CITY) (Job Description)
and does hereby waive and release any right to a mechanic's lien, stop notice, or any right against a labor and material bond on the job, except for disputed claims for extra Work in the amount of $.
(Company Name) (Date)
By:
(Title)
Exclusions: Listing of Claims, of which Notice has been given:
1. Claim for: In the amount of: $
2. Claim for: In the amount of: $
3. Claim for: In the amount of: $
4. Claim for: In the amount of: $
5. Claim for: ________ In the amount of: $_
"NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT
IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL RELEASE FORM."
City of Escondido
January 2017
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Resolution No. 2024-117
Exhibit A
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14.6 RETENTION. The City shall retain 5% percent of the estimated value of the Work done as part security for the fulfillment of the CONTRACT by the CONTRACTOR.
14.7 SUBSTITUTION OF SECURITIES, ESCROW ACCOUNT
A. Pursuant to the requirements of Public Contract Code Section 22300, upon CONTRACTOR's request, the City will make payment to CONTRACTOR of any earned retention funds withheld from payments under this Agreement if CONTRACTOR deposits with the City or in escrow with a California or federally chartered bank acceptable to the City, securities eligible for the investment pursuant to Government Code Section 16430 or bank or savings and loan certificates of deposit, upon the following conditions:
1. CONTRACTOR shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon.
2. All expenses relating to the substitution of securities under Section 22300 and under this Article, including, but not limited to the City's overhead and administrative expenses, and expenses of the escrow agent shall be the responsibility of the CONTRACTOR.
3. If CONTRACTOR shall choose to enter into an escrow agreement, such agreement form shall be provided by the City upon request, and which shall allow for the conversion to cash to provide funds to meet defaults by the CONTRACTOR including, but not limited to, termination of the CONTRACTOR's control over the Work, stop notices filed pursuant to law, assessment of liquidated damages or amounts to be kept or retained under the provisions of the Project Documents.
4. Securities, if any, shall be returned to CONTRACTOR only upon satisfactory completion of the Agreement.
B. To minimize the expense caused by such substitution of securities, CONTRACTOR shall, prior to or at the time CONTRACTOR requests to substitute security, deposit sufficient security to cover the entire amount to be then withheld and to be withheld under the General Conditions of this Agreement. Should the value of such substituted security at any time fall below the amount for which it was substituted, or any other amount which the City determines to withhold, CONTRACTOR shall immediately and at CONTRACTOR's expense deposit additional security qualifying under Section 22300 until the total security deposited is no less than equivalent to the amount subject to withholding under the Agreement.
C. In the alternative, under Section 22300, the CONTRACTOR may request City to make payment of earned retentions directly to the escrow agent at the expense of the CONTRACTOR. Also at the CONTRACTOR's expense, the CONTRACTOR may direct investment of the payments in securities, and the CONTRACTOR shall receive interest earned on such investment upon the same conditions as provided for securities deposited by CONTRACTOR. Upon satisfactory completion of the contract, CONTRACTOR shall receive from the escrow agent all securities, interest and payments received by escrow agent from the City pursuant to the terms of Section 22300. If CONTRACTOR elects to receive interest on monies withheld in retention by the City, CONTRACTOR shall, at the request of any subcontractor, make that option available to the subcontractor regarding any monies withheld in retention by the CONTRACTOR from the subcontractor. If the CONTRACTOR elects to receive any interest on any monies withheld in retention by the City, then the subcontractor shall receive the identical rate of interest received by the City of Escondido GENERAL CONDITIONS
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Contractor on any retention monies withheld from the subcontractor by the CONTRACTOR, less any actual pro rata costs associated with administering and calculating that interest. In the event the interest rate is a fluctuating rate, the rate for the subcontractor shall be determined by calculating the interest rate paid during the time that retentions were withheld from the subcontractor. If the CONTRACTOR elects to substitute securities in lieu of retention, then, by mutual consent of the CONTRACTOR and subcontractor, the subcontractor may substitute securities in exchange for the release of monies held in retention by CONTRACTOR. This shall apply only to those subcontractors performing more than five percent (5%) of the CONTRACTOR's total bid. The CONTRACTOR shall not require any subcontractor to waive any provision of this section.
D. If any provision of this Article shall be found to be illegal or unenforceable, then, notwithstanding, the remainder of this Article shall remain in full force and effect, and only such provision shall be deemed stricken.
14.8 CONTRACTOR'S WARRANTY OF TITLE, ASSIGNMENT OF ANTITRUST ACTIONS.
A. Public Contract Code Section 7103.5 provides:
1. In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the CONTRACTOR or Subcontractor offers and agrees to assign to the awarding body (the City) all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the CONTRACTOR, without further acknowledgment by the parties.
2. CONTRACTOR, for itself and all Subcontractors, agrees to assign to the City all rights, title, and interest in and to all such causes of action CONTRACTOR and all Subcontractors may have under the Agreement. This assignment shall become effective at the time the City tenders final payment to the CONTRACTOR, and CONTRACTOR shall require assignments from all Subcontractors to comply herewith.
14.9 REVIEW OF APPLICATIONS FOR PROGRESS PAYMENT
A. The City's designee will, within 7 days after receipt of each Application for Payment, either indicate approval by counter-signature on the application for progress payment, or return the application to the CONTRACTOR indicating in writing the City's reasons for refusing to recommend payment. In the latter case, the CONTRACTOR may make the necessary corrections and resubmit the application. 30 days after presentation of the Application for Payment with the City's recommendation, the amount recommended will become due and when due, will be paid by the City to the CONTRACTOR.
B. The City may withhold a sufficient amount or amounts of any payment or payments otherwise due to CONTRACTOR, as in its judgment may be necessary to cover:
1. Payments which may be past due and payable for just claims against CONTRACTOR or any Subcontractors, or against and about the performance of Work on the Project.
2. The cost of defective or incomplete or damaged Work which CONTRACTOR has not remedied.
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3. Liquidated damages assessed against CONTRACTOR.
4. Penalties for violation of labor laws.
5. The cost of materials ordered by the City pursuant to Article 13.
6. The cost of completion of this Agreement if there exists a reasonable doubt that this Agreement can be completed for the balance then unpaid to CONTRACTOR.
7. Damage caused by CONTRACTOR to another contractor.
8. Site clean-up provided by the City (or others on contract to the city) on behalf of the CONTRACTOR for failure of the CONTRACTOR to provide timely and adequate clean up as required by the Project Documents, in the opinion of the City.
9. Payments to indemnify, defend, or hold harmless the City.
10. Any payments due to the City including but not limited to payments for failed tests, utilities or imperfections.
11. Extra services for the Engineer, including but not limited to, services rendered in the evaluation of CONTRACTOR substitution requests, Requests For Information (RFI's), Change Order Requests (COR's) and Claims.
12. Extra services for the INSPECTOR including but not limited to re-inspection required due to CONTRACTOR's failed tests or installation of unapproved or defective materials and CONTRACTOR's requests for inspection and CONTRACTOR's failure to attend the inspection, and Work performed after regular Work hours, or during weekend and/or holidays.
13. Stop Notices/Liens have been filed in connection with the Work and the City has exercised its discretion to not accept a specific Bond intended to discharge of such Liens.
14. Claims by third party entities and/or individuals.
15. Persistent failure to comply with directions given to perform.
16. Costs and/or damages resulting from delay, termination and/or other causes which increase or which may increase the City's costs in administering the contract.
17. There are other items entitling the City to a set-off against the amount recommended.
The City must give the CONTRACTOR written notice stating the reasons for such action and pay the CONTRACTOR in the next application for progress payment, the amount so withheld, or any adjustment thereto agreed to by the City and CONTRACTOR, when CONTRACTOR corrects to the City's satisfaction the reason for such action.
C. If the above grounds are in the opinion of the City removed by or at the expense of CONTRACTOR, payment shall be made for amounts withheld because of them.
D. PAYMENTS WITHHELD. The City may apply such withheld amount or amounts to payment of such claims or obligations at its discretion. In so doing, the City shall make such payments on behalf of CONTRACTOR. If any payment is so made by the City, then such amount shall be considered as a payment made under contract by the City to CONTRACTOR and the City shall not be liable to CONTRACTOR for such payments City of Escondido GENERAL CONDITIONS
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made in good faith. Such payments may be made without prior judicial determination of claim or obligations. The City will render CONTRACTOR an accounting of such funds disbursed on behalf of CONTRACTOR. To minimize/avoid claims of interference and/or that proposed payment was improper, the City shall endeavor to communicate to CONTRACTOR as to the CONTRACTOR's opinion regarding any proposed payment to a third party individual/entity, prior to City making the same. If CONTRACTOR fails to respond in writing detailing the reason(s) for making any such payment within two (2) working days, City shall have the right, but not the duty, to make any such payment without concern that CONTRACTOR will later claim such payment was improper and/or interfered with CONTRACTOR's relationship and/or prospective economic advantage. In such event, all such claims by CONTRACTOR shall be deemed waived.
E. As an alternative to payment of such claims or obligations, the City, in its sole discretion, may reduce the total contract price as provided in the Article 13.
14.10 PARTIAL OCCUPATION /UTILIZATION
A. The City reserves the right to occupy buildings and/or portions of the site at any time before completion, and such occupancy shall not constitute final acceptance of any part of Work covered by this Agreement, nor shall such occupancy extend the date specified for completion of the Work, nor shall any such occupancy affect any liquidated damages.
The City shall have the right to utilize or place into service any item of equipment or other usable portion of the Work prior to completion of the Work. Whenever the City plans to exercise said right, the CONTRACTOR will be notified in writing by the City, identifying the specific portion or portions of the Work to be so utilized or otherwise placed into service.
B. It shall be understood by the CONTRACTOR that until such written notification is issued, all responsibility for care and maintenance of all of the Work shall be borne by the CONTRACTOR. Upon issuance of said written notice of Partial Utilization, the City will accept responsibility for the protection and maintenance of all such items or portions of the Work described in the written notice.
C. The CONTRACTOR shall retain full responsibility for satisfactory completion of the Work, regardless of whether a portion thereof has been partially utilized by the City, and the CONTRACTOR's 1 year correction period shall commence only after the date of Project Completion for the entire Work.
14.11 PROJECT COMPLETION
A. The City shall accept completion of the Agreement and have the Notice of Completion recorded when the entire Work including CONTRACTOR's Punch List(s) and City's final review comments shall have been completed to the satisfaction of the City. The Work may only be accepted as complete by action of the Escondido City Council. Completion means final completion, and the concept of substantial completion shall not apply to this Agreement.
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B. However, the City, at its sole option, may accept completion of the Agreement and have the Notice of Completion recorded when the entire Work including individual portions of the Work shall have been completed to the satisfaction of the City, except for minor corrective items, as distinguished from incomplete items.
C. A final walk through of the Project to determine completion of the Agreement and to record the Notice of Completion shall occur only upon a valid claim by CONTRACTOR that the Project is complete except for minor corrective items. Any erroneous claims of completion by CONTRACTOR resulting in a premature walk through shall be at CONTRACTOR's sole cost and expense and the City shall make adjustments to the Contract Price by reducing the amount thereof to pay for any costs incurred by the City due to the erroneous claims by the CONTRACTOR that the Project is complete. Minor corrective items shall be identified in the final walk through of the Project.
D. If the CONTRACTOR fails to complete the minor corrective items prior to the expiration of the 35 day period immediately following recording of the Notice of Completion, the City shall withhold from the final payment an amount equal to twice the estimated cost, as determined by the City, of each item until such time as the item is completed. At the end of such 35 day period, if there are items remaining to be corrected, the City may elect to proceed as provided in the Article 13.
14.12 FINAL APPLICATION FOR PAYMENT. After the CONTRACTOR has completed all of the Work, the punch-list, and delivered all maintenance and operating instructions, schedules, guarantees, Bonds, certificates of inspection, marked-up as-built record documents and other documents, all as required by the Project Documents, and after the Engineer and the City have indicated that the Work is acceptable, the CONTRACTOR may make application for final payment following the procedure for progress payments. The final Application for Payment shall be accompanied by all documentation called for in the Contract Documents, together with complete and legally effective unconditional waiver releases (Reference Article 14.5) by CONTRACTOR and all SUBCONTRACTORS/suppliers that filed preliminary notices of all previous progress payments, conditional waiver and release upon "final payment", and waivers or releases of all Liens arising out of or filed in connection with the Work.
14.13 FINAL PAYMENT AND ACCEPTANCE
A. If, on the basis of the City's observation of the Work during construction and final inspection, and the City's review of the final Application for Payment and accompanying documentation, all as required by the Contract Documents, the City is satisfied that the Work has been completed and the CONTRACTOR's other obligations under the Contract Documents have been fulfilled, the City designee will recommend payment of the final application for progress payment.
B. After acceptance of the Work by the Escondido City Council, the City will make final disposition to the CONTRACTOR of the amount remaining after deducting all prior payments and all amounts to be kept or retained under the provisions of the Contract Documents, including the following items:
1. Liquidated damages, as applicable; and
2. Amounts withheld by the City under Article 14.9.B. which have not been released.
C. As a condition of final payment, the CONTRACTOR shall be required to execute a release releasing the City from any and all claims of liability for payment on the Project except for such amounts as may be specifically described and excluded from the release.
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14.14 RELEASE OF RETENTION AND OTHER DEDUCTIONS. After recording the Notice of Completion with the San Diego County Recorder's Office to initiate the Lien period, and not more than 55 calendar days thereafter, the City will release to the CONTRACTOR the retention funds withheld pursuant to the Agreement, less any deductions to cover pending claims against the City.
ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION
15.1 CITY'S RIGHT TO TERMINATE AGREEMENT
A. If the CONTRACTOR refuses or fails to complete the Work or any separable part thereof with such diligence as will ensure its completion within the time specified or any extension thereof, or fails to complete said Work within such time, or if the CONTRACTOR should file a petition for relief as a debtor, or should relief be ordered against CONTRACTOR as a debtor under Title 11 of the United States Code, or if CONTRACTOR should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or if it should refuse or should fail to supply enough properly skilled workers or proper materials to complete the Work in the time specified, or if CONTRACTOR should fail to make prompt payment to Subcontractors for materials or labor, or disregard laws or ordinances or instructions of the City, or if CONTRACTOR or its Subcontractors should otherwise violate any provision of this Agreement, including, but not limited to, the performance of defective Work, disregard or violate the Laws or Regulations of any public body having jurisdiction; disregard or violate provisions of the Contract Documents or City's instructions; fail to prosecute the Work according to the approved progress schedule; fail to provide a qualified superintendent, competent workmen, or materials or equipment meeting the requirements of the Contract Documents; or disregard the authority of the City, then the City may, without prejudice to any other right or remedy, serve written notice upon CONTRACTOR and its surety of City's intention to terminate this agreement. Such notice shall contain the reasons for such intention to terminate. Unless within seven (7) days after the service of such notice such condition shall cease or such violation shall cease and arrangements satisfactory to the City for the correction thereof have been made, this Agreement shall cease and terminate.
In such case, CONTRACTOR shall not be entitled to receive any further payment until the Work is finished to the City's satisfaction.
B. In the event of any such termination, the City shall immediately serve written notice thereof upon surety and CONTRACTOR, and surety shall have the duty to take over and perform this Agreement, provided, however, that if surety within 7 days after service upon it of notice of termination does not give the City written notice of its intention to unqualified by honor its duty to take over and perform this Agreement, or does not commence actual, on site performance thereof within 15 days after service of the notice of termination by the City on surety, the City may take over the Work and prosecute it to completion by Agreement or by any other method it may deem advisable for the account and at the expense of CONTRACTOR, and CONTRACTOR and its surety shall be liable to the City for any excess cost or other damages, including the added time devised by City personnel and/or consultants, including attorneys, occasioned by the City thereby. Time is of the essence in this Agreement. If the City takes over the Work as herein above provided, the City may, without liability for so doing, take possession of and utilize in completing the Work such materials, supplies, equipment and other property belonging to the CONTRACTOR as may be on the site of the Work and necessary therefore.
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C. If the expense of finishing the Work, including compensation for additional engineering, architectural, managerial, legal, consulting, personnel, and administrative services, shall exceed the unpaid balance of the Agreement, CONTRACTOR and/or its surety shall pay the difference to the City. Expense incurred by the City as herein provided, and damage incurred through CONTRACTOR's default, shall be certified to City by the Engineer, or ARCHITECT if applicable. If the unpaid balance under the Agreement shall exceed the expense of finishing the Work, including compensation for additional architectural, managerial, legal, consulting, personnel, and administrative services, such excess shall be paid to CONTRACTOR or its creditor(s).
D. If the CONTRACTOR fails to remedy the conditions constituting default within the time allowed, the City may then issue the notice of termination.
E. In the event that sufficient funds are not appropriated to complete the Project or the City determines that sufficient funds are not available to complete the Project, the City may terminate or suspend the completion of the Project at any time by giving written notice to the CONTRACTOR. In the event that the City exercises this option, the City shall pay for any and all Work and materials completed or delivered onto the site, and the value of any and all Work then in progress and orders actually placed which cannot be canceled up to the date of notice of termination. The value of Work and materials paid for shall include a factor of fifteen percent (15%) for the CONTRACTOR's overhead and profit and there shall be no other costs or expenses paid to CONTRACTOR. All Work, materials and orders paid for pursuant to this provision shall become the property of the City. The City may, without cause, order CONTRACTOR in writing to suspend, delay or interrupt the Project in whole or in part for such period of time as the City may determine. Adjustment shall be made for increases in the cost of performance of the Agreement caused by suspense, delay or interruption.
F. The foregoing provisions are in addition to and not in limitation of any other rights or remedies available to the City.
15.2 TERMINATION OF AGREEMENT BY THE CITY FOR CONVENIENCE A. Upon 7 days written notice to the CONTRACTOR the City may, without cause and without prejudice to any other right or remedy of the City, elect to terminate the Agreement. In such case, the CONTRACTOR shall be paid (without duplication of any items):
1. For completed and acceptable Work executed in accordance with the Contract Documents, prior to the effective date of termination, including fair and reasonable sums for overhead and profit of such Work;
2. For expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses;
3. For all reasonable claims, costs, losses, and damages incurred in settlement of terminated contracts with Subcontractors, Suppliers, and others; and
4. For reasonable expenses directly attributable to termination.
B. CONTRACTOR shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination.
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ARTICLE 16 - CONSTRUCTION CLAIMS, WAIVER AND RELEASE FORMS, DISPUTES, FALSE CLAIMS ACT.
16.1 CONTRACTOR CLAIMS
A. NOTICE. If the CONTRACTOR shall claim compensation for any damage sustained by reason of the acts of the City or its agents, or if the CONTRACTOR disagrees with the City's or Engineer's/Architect's decisions regarding a CONTRACTOR's Change Order Request (COR), the CONTRACTOR shall provide written "Notice" to the City within 5 days after sustaining of such damage, or being notified of an adverse decision, and provide within 14 days of the event the factual basis supporting the claim (unless otherwise specified). The written "Notice" shall state the summary points for which the factual bases will support the claim and cite in detail the Project Documents (including plans and specifications) upon which the claim is to be based. CONTRACTOR's failure to notify the City within such a period shall be deemed a waiver and relinquishment of such a claim. If such notice is given within the specified time, the procedure for its consideration shall be as stated above in these General Conditions.
B. WAIVER AND RELEASE FORMS. In addition, on or before the end of the month for which the claim has been filed, the CONTRACTOR shall also file with the City the WAIVER AND RELEASE FORMS, for which the claim and the amount of the claim is identified. If the claim is not indicated on the WAIVER AND RELEASE FORMS, CONTRACTOR's claim shall be forfeited and invalidated and it shall not be entitled to consideration for time or payment on account of any such claim.
C. REQUIRED DOCUMENTATION FOR CLAIMS FOR TIME: Fragnet - Sometimes known as a "Sub-network". A Fragnet will be required for time impact analysis and time extensions. CONTRACTOR's failure to provide a "Notice of Delay" within 24 hours, and submit a Fragnet for time impact analysis and time extension(s) on or within 14 days of the delaying event, shall forfeit and invalidate all considerations for time and/or payment.
The costs to prepare Fragnets and schedule updates resulting from approved Fragnets are part of the Work, regardless of number and difficulty. The City will provide a response to the Fragnet on or within 14 days from the completed submission.
D. Except for tort claims, all claims by the CONTRACTOR for a time extension, payment of money or damages arising from Work done by, or on behalf of, the CONTRACTOR pursuant to the Agreement and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled to, or as to the amount of payment which is disputed by the City of $375,000 of less, is subject to the settlement and arbitration provisions procedures set forth in Public Contract Code Section 20104, et seq. The text of those provisions are provided in full in Article 17.
E. All of the following claims by the CONTRACTOR are subject to the claim resolution procedures set forth in Public Contract Code Section 9204. The text of that section is provided in full in Article 17.
1. A time extension;
2. Payment of money or damages arising from Work done by, or on behalf of, the CONTRACTOR pursuant to the Agreement and payment of which is not otherwise expressly provided for, or CONTRACTOR is not otherwise entitled to; and
3. Payment of an amount that is disputed by the City.
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F. Any claim must be a separate demand sent by registered mail or certified mail with return receipt requested. The CONTRACTOR shall furnish reasonable documentation to support the claim, which shall include all of the materials described in Section 16.1.
G. The City shall conduct a reasonable review of the claim within 45 days and shall provide the CONTRACTOR a written statement identifying what portion of the claim is disputed and what portion is undisputed. The City and the CONTRACTOR may, by mutual agreement, extend the time period for response. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the City issues its written statement.
H. If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim because of privity of contract does not exist, the CONTRACTOR may present a claim to the City on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing that the CONTRACTOR present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the City shall furnish reasonable documentation to support the claim, which shall include all of the materials described in Section 16.1. Within 45 days of receipt of this written request, the CONTRACTOR shall notify the subcontractor in writing as to whether the CONTRACTOR presented the claim to the City. If the CONTRACTOR did not present the claim, the CONTRACTOR must provide the subcontractor with a statement of the reasons for not presenting the claim to the City.
16.2 DISPUTES -THE CITY'S AND ENGINEER'S DECISIONS
A. If the CONTRACTOR disputes the City’s written response to the claim, or if the City does not respond to the claim within the time prescribed, the CONTRACTOR may demand in writing an informal conference to meet and confer for settlement of the issues in dispute.
The CONTRACTOR must send the demand by registered mail or certified mail, return receipt requested. Upon receipt, the City shall schedule a meet and confer conference within 30 days for settlement of the dispute.
B. If any portion of the claim remains in dispute after the meet and confer conference, the City shall provide the CONTRACTOR a written statement identifying the potion of the claim that remains in dispute and the portion that is undisputed within 10 business days following the conclusion of the conference. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the City issues its written statement. Any disputed portion of the claim, as identified by the CONTRACTOR in writing, shall be submitted to nonbinding mediation. The City shall conduct a reasonable review of the claim within 45 days and shall provide the CONTRACTOR a written statement identifying what portion of the claim is disputed and what portion is undisputed. The City and the CONTRACTOR may, by mutual agreement, extend the time period for response. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the City issues its written statement.
C. The City and CONTRACTOR shall mutually agree to a mediator within 10 business days after the disputed potion of the claim has been identified in writing. The City and the CONTRACTOR shall share the associated costs of mediation equally. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside Section 9204. The mediation City of Escondido GENERAL CONDITIONS
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conducted shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
D. Failure by the City to respond to a claim from the CONTRACTOR within the time periods described above or to otherwise meet the time requirements described above shall result in the claim being deemed rejected in its entirety.
E. Amounts not paid in a timely manner as outlined above will bear interest at 7% per year.
16.3 FALSE CLAIMS ACT CERTIFICATION. All claims submitted by the CONTRACTOR shall be accompanied by a notarized certificate containing the following language:
Under penalty perjury and with specific reference to the California False Claims Act, Government Code Section 12650 et. seq., the undersigned, (name)
of
(title)
(company)
hereby certifies that the claim for the additional compensation and time, if any, made herein for the Work on this Contract is a true statement of the actual costs incurred or estimated future costs, and time sought, and is fully documented and supported under the Agreement.
Dated
/s/
Subscribed and sworn before me this day
of__________________________________________________
Failure to submit the notarized certificate will be sufficient cause for denying the claim.
ARTICLE 17 - MISCELLANEOUS
1. 2.
City of Escondido
January 2017
If notice is given to the City, by personal delivery thereof to the City or by deposit in the United States mail, enclosed in a sealed envelope addressed to the City, and sent by registered or certified mail with postage prepaid; Notary Public
My Commission Expires,
If notice is given to CONTRACTOR, by personal delivery thereof to said CONTRACTOR or to CONTRACTOR's superintendent at the site of the Project,
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17.1 GIVING NOTICE
A. Any notice from one party to the other or otherwise under the Agreement shall be in writing and shall be dated and signed by party giving such notice or by a duly authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners, and copied to the City:
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or by deposit in the United States mail, enclosed in a sealed envelope addressed to said CONTRACTOR at its regular place of business or at such address as may have been established for the conduct of Work under this Agreement, and sent by registered or certified mail with postage prepaid;
3. If notice is given to the surety or other persons, by personal delivery to such surety or other person or by deposit in the United States mail, enclosed in a sealed envelope, addressed to such surety or person at the address of such surety or person last communicated by the surety or other person to the party giving notice, and sent by registered or certified mail with postage prepaid.
17.2 TITLE TO MATERIALS FOUND ON THE WORK. The City reserves the right to retain title to all soils, stone, sand, gravel, and other materials developed and obtained from excavations and other operations connected with the Work. Unless otherwise specified in the Contract Documents, neither the CONTRACTOR nor any Subcontractor shall have any right, title, or interest in or to any such materials. The CONTRACTOR will be permitted to use in the Work, without charge, any such materials which meet the requirements of the Contract Documents.
17.3 RIGHT TO AUDIT. If the CONTRACTOR submits a claim to the City for additional compensation, the City shall have the right, as a condition to considering the claim, and as a basis for evaluation of the claim, and until the claim has been settled, to audit the CONTRACTOR's Documents and books to the extent they are relevant. This right shall include the right to examine books, records, documents, and other evidence and accounting procedures and practices, sufficient to discover and verify all direct and indirect costs of whatever nature claimed to have been incurred or anticipated to be incurred and for which the claim has been submitted. The right to audit shall include the right to inspect the CONTRACTOR's plant, or such parts thereof, as may be or have been engaged in the performance of the Work. The CONTRACTOR further agrees that the right to audit encompasses all subcontracts and is binding upon Subcontractors. The rights to examine and inspect herein provided for shall be exercisable through such representatives as the City deems desirable during the CONTRACTOR's normal business hours at the office of the CONTRACTOR.
The CONTRACTOR shall make available to the City for auditing, all relevant accounting records and documents, and other financial data, and upon request, shall submit true copies of requested records to the City.
17.4 SURVIVAL OF OBLIGATIONS. All representations, indemnifications, warranties, and guaranties made in, required by or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion and acceptance of the Work or termination or completion of the Agreement.
17.5 CONTROLLING LAW. This Agreement is to be governed by the law of the state of California, in which the Project is located, with venue in North San Diego County.
17.6 SEVERABILITY. If any term or provision of this Agreement is declared invalid or unenforceable by any court of lawful jurisdiction, the remaining terms and provisions of the Agreement shall not be affected thereby and shall remain in full force and effect.
17.7 WAIVER. The waiver by the City of any breach or violation of any term, covenant or condition of this Agreement or of any Agreement provision, ordinance, or law shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent payment of any monies or fee by the City which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by CONTRACTOR or any term, covenant, condition of this Agreement or of any applicable law or ordinance.
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17.8 PROHIBITED INTERESTS. No official of the City who is authorized in such capacity and on behalf of the City to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting or approving any architectural, engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the Project, shall become directly or indirectly interested financially in this Project or in any part thereof. No officer, employee, Engineer, attorney, architect or inspector of or for City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory or other similar functions in connection with construction of Project shall become directly or indirectly interested financially in this Project or in any part thereof. CONTRACTOR shall receive no compensation and shall repay the City for any compensation received by or from CONTRACTOR hereunder, should CONTRACTOR aid, abet or knowingly participate in violation of this Article.
17.9 California Public Contract Code § 9204. Legislative findings and declarations regarding timely and complete payment of contractors for public works projects; claims process. (a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner. (b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project. (c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following:
A. A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project.
B. Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled.
C. Payment of an amount that is disputed by the public entity. (2) “Contractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project. (3) A. “Public entity” means, without limitation, except as provided in subparagraph B., a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
B. “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the jurisdiction of that department.
(iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department.
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(iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code.
(v) The Military Department as to any project under the jurisdiction of that department.
(vi) The Department of General Services as to all other projects. (vii) The High-Speed Rail Authority.
(4) “Public works project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind.
(5) “Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor. (d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim. (C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply. (2) (A) If the claimant disputes the public entity's written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute.
(B) Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection City of Escondido
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with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section.
(C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties' dispute. (3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity's failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing, either on his or her own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section. (f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section.
(g) This section applies to contracts entered into on or after January 1, 2017. (h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.
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17.10 California Public Contract Code § 20104. Application of article; provisions included in plans and specifications.
(a) (1) This article applies to all public works claims of three hundred seventy-five thousand dollars ($375,000) or less which arise between a contractor and a local agency. (2) This article shall not apply to any claims resulting from a contract between a contractor and a public agency when the public agency has elected to resolve any disputes pursuant to Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2. (b) (1) “Public work” means “public works contract” as defined in Section 1101 but does not include any work or improvement contracted for by the state or the Regents of the University of California.
(2) “Claim” means a separate demand by the contractor for (A) a time extension, (B) payment of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public work and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled to, or (C) an amount the payment of which is disputed by the local agency.
(c) The provisions of this article or a summary thereof shall be set forth in the plans or specifications for any work which may give rise to a claim under this article. (d) This article applies only to contracts entered into on or after January 1, 1991.
17.11 California Public Contract Code § 20104.2. Claims; requirements; tort claims excluded.
For any claim subject to this article, the following requirements apply:
(a) The claim shall be in writing and include the documents necessary to substantiate the claim.
Claims must be filed on or before the date of final payment. Nothing in this subdivision is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims.
(b) (1) For claims of less than fifty thousand dollars ($50,000), the local agency shall respond in writing to any written claim within 45 days of receipt of the claim, or may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the local agency may have against the claimant.
(2) If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the local agency and the claimant.
(3) The local agency’s written response to the claim, as further documented, shall be submitted to the claimant within 15 days after receipt of the further documentation or within a period of time no greater than that taken by the claimant in producing the additional information, whichever is greater.
(c) (1) For claims of over fifty thousand dollars ($50,000) and less than or equal to three hundred seventy-five thousand dollars ($375,000), the local agency shall respond in writing to all written claims within 60 days of receipt of the claim, or may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the local agency may have against the claimant. (2) If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the local agency and the claimant.
(3) The local agency’s written response to the claim, as further documented, shall be submitted to the claimant within 30 days after receipt of the further documentation, or within a period of time no greater than that taken by the claimant in producing the additional information or requested documentation, whichever is greater. (d) If the claimant disputes the local agency’s written response, or the local agency fails to respond within the time prescribed, the claimant may so notify the local agency, in writing, either within 15 days of receipt of the local agency’s response or within 15 days of the local City of Escondido GENERAL CONDITIONS
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agency’s failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon a demand, the local agency shall schedule a meet and confer conference within 30 days for settlement of the dispute.
(e) Following the meet and confer conference, if the claim or any portion remains in dispute, the claimant may file a claim as provided in Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the claimant submits his or her written claim pursuant to subdivision (a) until the time that claim is denied as a result of the meet and confer process, including any period of time utilized by the meet and confer process. (f) This article does not apply to tort claims and nothing in this article is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code.
17.12 California Public Contract Code § 20104.4. Civil action procedures; mediation and arbitration; trial de novo; witnesses.
The following procedures are established for all civil actions filed to resolve claims subject to this article:
(a) Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to nonbinding mediation unless waived by mutual stipulation of both parties. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court or by stipulation of both parties. If the parties fail to select a mediator within the 15-day period, any party may petition the court to appoint the mediator.
(b) (1) If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1141.11 of that code. The Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.
(2) Notwithstanding any other provision of law, upon stipulation of the parties, arbitrators appointed for purposes of this article shall be experienced in construction law, and, upon stipulation of the parties, mediators and arbitrators shall be paid necessary and reasonable hourly rates of pay not to exceed their customary rate, and such fees and expenses shall be paid equally by the parties, except in the case of arbitration where the arbitrator, for good cause, determines a different division. In no event shall these fees or expenses be paid by state or county funds.
(3) In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, any party who after receiving an arbitration award requests a trial de novo but does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, pay the attorney’s fees of the other party arising out of the trial de novo.
(c) The court may, upon request by any party, order any witnesses to participate in the mediation or arbitration process.
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17.13 California Public Contract Code § 20104.6. Payment on undisputed portion of claim; interest on arbitration awards or judgments.
(a) No local agency shall fail to pay money as to any portion of a claim which is undisputed except as otherwise provided in the contract.
(b) In any suit filed under Section 20104.4, the local agency shall pay interest at the legal rate on any arbitration award or judgment. The interest shall begin to accrue on the date the suit is filed in a court of law.
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ESCONDIDO
City of Choice'^^'^^^^-
Bond No.: 108061531
Premium: $14,940.00
Premium subject to adjustment
based on final contract price
FAITHFUL PERFORMANCE BOND
KNOW ALL BY THESE PRESENTS,
WHEREAS, The City Council of the City of Escondido, State of California, and Filanc, a (“Principal”), have entered into that certain Public Improvement Agreement dated(“Agreement,” hereby referred to and made a part hereof), whereby Principal has agreed to install and complete certain designated public improvements associated with the Emergency Trunk Sewer Replacement 2024 Project.
WHEREAS, the Principal is required under the terms of the Agreement to furnish a bond for the faithful performance of the Agreement.
NOW, THEREFORE, we, the Principal and Travelers Casualty and Surety Company of America, a surety organized and existing under the laws of the State of Connecticut and authorized to act as a surety in the State of California (“Surety”), are held and firmly bound unto the City of Escondido, a California municipal corporation (“City”) in the penal sum of One Million Seven Hundred Ninety-Five Thousand Five Hundred Thirty Four dollars and zero cents ($1,795,534.00), lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents.
THE CONDITION of this obligation is such that if the Principal, or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, and provisions in the Agreement and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents, and employees, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any manner affect its obligations on this bond, and the Surety hereby waives notice of any such change, extension of time, alteration, or addition to the terms of the Agreement or to the work or to the specifications.
Faithful Performance Bond CAO: 04/23/2024
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IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, as of this 19th day of July, 20 24.
Filanc
Name of Principal
740 N. Andreasen Drive, Escondido, CA 92029
Address of Principal Name of Person Signing on Behalf of Principal Title of Person Signing on Behalf of Principal
Travelers Casualty and Surety Company of
America
Name of Surety
21688 Gateway Center Drive, Diamond Bar,
CA 91765__________________________
Address of Surety
By:___________- - . _______________________
Signature of Person'Signing on Behalf of Surety
Lawrence F. McMahon
Name of Person Signing on Behalf of Surety
Attorney-in-Fact
Title of Person Signing on Behalf of Surety
(ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPALS AND SURETY MUST BE ATTACHED.) By:
APPROVED AS TO FORM:
Office of the City Attorney
MICHAEL R. MCGUINNESS, City Attorney
08 / 07 / 2024
Date:
Faithful Performance Bond -2- CAO: 04/23/2024
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California .
County of San Diego
before me Minna Huovila, Notary Public
(insert name and title of the officer)
On
personally appeared Lawrence F. McMahon
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Signature
WITNESS my hand and official seal.
(Seal)
^Tnnahuovil^^
COMM. #2473536 o
NOTARY PUBLIC-CALIFORNIA W
SAN DIEGO COUNTY 2
My Commission Expires ■
DECEMBER 6, 2027 I
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California .
County of San Diego■
On July 23 2024 before me, Adriana Y- Iglesias, Notary Public (insert name and title of the officer)
personally appeared ^avid Kiess ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACR1ANA V. IGLESIAS B
scta-v '.Otic - California J
2ie?o County f
ission “ 2378408 r
Expires Oct 14, 2025 V
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TRAVELERS!
Travelers Casualty and Surety Company of America
Travelers Casualty and Surety Company
St. Paul Fire and Marine Insurance Company
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company are corporations duly organized under the laws of the State of Connecticut (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint LAWRENCE F MCMAHON of SAN DIEGO , California . their true and lawful Attorney(s)-in-Fact to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law.
IN WITNESS WHEREOF, the Companies have caused this instrument to be signed, and their corporate seals to be hereto affixed, this 21st day of April, 2021.
On this the 21st day of April, 2021, before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of each of the Companies, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of said Companies by himself as a duly authorized officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission expires the 30th day of June, 2026
This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of each of the Companies, which resolutions are now in full force and effect, reading as follows:
RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in- Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached.
I, Kevin E. Hughes, the undersigned, Assistant Secretary of each of the Companies, do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which remains in full force and effect.
Dated this 19th day of July ,2024
Kevin E. Hughes, Assistant Secretary
To verify the authenticity of this Power of Attorney, please call us at 1-800-421-3880.
Please refer to the above-named Attorney(s)-in-Fact and the details of the bond to which this Power of Attorney is attached.
Doc ID: 1f84b425ebf00aa3b6bc07a177ed7659dc0192b9
Resolution No. 2024-117
Exhibit A
140
Item5.
Bond No.: 108061531
ESCQNDIDO
City of
Premium: Included in Performance
Bond
LABOR AND MATERIALS BOND
KNOW ALL BY THESE PRESENTS,
WHEREAS, The City Council of the City of Escondido, State of California, and Filanc, a (“Principal”), have entered into that certain Public Improvement Agreement dated (“Agreement,” hereby referred to and made a part hereof), whereby Principal has agreed to install and complete certain designated public improvements associated with the Emergency Trunk Sewer Replacement 2024 Project.
WHEREAS, under the terms of the Agreement, the Principal is required before entering upon the performance of the work, to file a good and sufficient payment bond with the City of Escondido, a California municipal corporation (“City"), to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code.
NOW, THEREFORE, the Principal and Travelers Casualty and Surety Company of America, a surety organized and existing under the laws of the State of Connecticut and authorized to act as a surety in the State of California (“Surety”), are held firmly bound unto the City and all contractors, subcontractors, laborers, material suppliers, and other persons employed in the performance of the Agreement and referred to in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code in the sum of One Million Seven Hundred Ninety-Five Thousand Five Hundred Thirty Four dollars and zero cents ($1,795,534.00), lawful money of the United States of America, for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to this work or labor, that the Surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing this obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
If the condition of this bond is fully performed, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Agreement or to the work to be performed thereunder or the Labor and Materials Bond CAO: 04/23/2024
Doc ID: 1f84b425ebf00aa3b6bc07a177ed7659dc0192b9
Resolution No. 2024-117
Exhibit A
141
Item5.
740 N. Andreasen Drive, Escondido, CA 92029
Address of Principal
J. ______
Name of Person Signing on Behalf of Principal
woe _____
Title of Person Signing on Behalf of Principal I
specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, as of this 19th day of July___________, 20 24.
Filanc By: 0
Name of Principal Signature of PersortSign on Behaif of Principal Travelers Casualty and Surety Company of
America
Name of Surety
21688 Gateway Center Drive, Diamond Bar,
CA 91765__________________________
Address of Surety
Signature of Person Signing on Behalf of Surety
Lawrence F. McMahon
Name of Person Signing on Behalf of Surety
Attorney-in-Fact
Title of Person Signing on Behalf of Surety
(ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPALSAND SURETY MUST BE ATTACHED.) Approved as to Form:
Office of the City Attorney
MICHAEL R. MCGUINNESS, City Attorney
By:
08 / 07 / 2024
Date:
-2-Labor and Materials Bond CAO: 04/23/2024
Doc ID: 1f84b425ebf00aa3b6bc07a177ed7659dc0192b9
Resolution No. 2024-117
Exhibit A
142
Item5.
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California .
County of San Diego
before me Minna Huovila, Notary Public
(insert name and title of the officer)
On
personally appeared Lawrence F. McMahon,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Signature
WITNESS my hand and official seal.
(Seal)
MINNA HUOVILACOMM. #2473536 A
NOTARY PUBLIC-CALIFORNIA «
SAN DIEGO COUNTY O
My Commission Expires T
DECEMBER 6. 2027 I
Doc ID: 1f84b425ebf00aa3b6bc07a177ed7659dc0192b9
Resolution No. 2024-117
Exhibit A
143
Item5.
travelers^
Travelers Casualty and Surety Company of America
Travelers Casualty and Surety Company
St. Paul Fire and Marine Insurance Company
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company are corporations duly organized under the laws of the State of Connecticut (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint LAWRENCE F MCMAHON of SAN DIEGO , California . their true and lawful Attorney(s)-in-Fact to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law.
IN WITNESS WHEREOF, the Companies have caused this instrument to be signed, and their corporate seals to be hereto affixed, this 21st day of April, 2021.
On this the 21st day of April, 2021, before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of each of the Companies, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of said Companies by himself as a duly authorized officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission expires the 30th day of June, 2026
This Power of Attorney is granted under and by the authority of the following resolutions the Companies, which resolutions are now in full force and effect, reading as follows:
adopted by the Boards of Directors of each of
RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in- Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached.
I, Kevin E. Hughes, the undersigned, Assistant Secretary of each of the Companies, do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which remains in full force and effect.
Dated this 19th day of July
Kevin E. Hughes, Assistant Secretary
To verify the authenticity of this Power of Attorney, please call us at1-800-421-3880.
Please refer to the above-named Attorney(s)-in-Fact and the details of the bond to which this Power of Attorney is attached.
Doc ID: 1f84b425ebf00aa3b6bc07a177ed7659dc0192b9
Resolution No. 2024-117
Exhibit A
144
Item5.
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California .
County of San Diego)
On July 23 2024 before me Adriana Y- Iglesias, Notary Public (insert name and title of the officer)
personally appeared Dav|d Kiess ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Signature
WITNESS my hand and official seal.
ADRIANA Y. IGLESIAS
Notary --Cue • California
San Oiego County
C:—ission ft 2378408
C;~~. Expires Oct 14, 2025
Doc ID: 1f84b425ebf00aa3b6bc07a177ed7659dc0192b9
Resolution No. 2024-117
Exhibit A
145
Item5.
DocuSign Envelope ID: 49D8694F-E4A7-4B6F-BC58-4AC3A07FD85F
RECORD OF PROCEEDING
CONSENT OF DIRECTORS OF
J.R. FILANC CONSTRUCTION COMPANY
IN LIEU OF SPECIAL MEETING OF
December 18, 2023
In lieu of a special meeting of the Board of Directors of J.R. Filanc Construction Company (the “Company”) on December 18, 2023, the undersigned, being all of the Directors of said Company, do hereby consent and agree:
1. BE IT RESOLVED, the Directors hereby approve, adopt and ratify the attached Operational Limits of Authority;
2. BE IT RESOLVED, the Directors hereby approve, adopt, ratify and confirm, that Greg Hesser, Kevin Williams, Mark Filanc, Omar Rodea are hereby authorized to sign documents on behalf of Filanc in accordance with the attached Operational Limits of Authority. Refer to the Operational Limits for additional limited individuals.
Executed at St. Louis County, Missouri, this 18th day of December 2023.
All the Directors of
J.R. Filanc Construction Company
Gregory T. Hesser
Richard Jaggers
Michael Burke
DocuSignedby:-----------------------------
wOil,,ams
x------DocuSigned by:
.. Omar Rodea
'------3C17471A7AA64DA...
Christine Moore
1 Doc ID: 1f84b425ebf00aa3b6bc07a177ed7659dc0192b9
Resolution No. 2024-117
Exhibit A
146
Item5.
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08 / 07 / 2024 Viewed by Omar Rodea ([email protected]) viEwm 01:32:16 UTC IP: 76.88.85.18
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Resolution No. 2024-117
Exhibit A
147
Item5.
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File name file
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Status • Signed
Document History
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Resolution No. 2024-117
Exhibit A
148
Item5.
STAFF REPORT
August 28, 2024
File Number 0600-95
SUBJECT
NOTICE OF COMPLETION FOR EMERGENCY REPAIR OF THE ESCONDIDO LAND OUTFALL
DEPARTMENT
Utilities Department, Wastewater Division
RECOMMENDATION
Request the City Council adopt Resolution No. 2024 -119, authorizing the Director of Utilities to file a Notice of Completion for Emergency Repair of the Escondido Land Outfall Project.
Staff Recommendation: Approval (Utilities: Angela Morrow, Director of Utilities) Presenter: Stephanie Roman, Interim Assistant Director of Utilities, Construction & Engineering ESSENTIAL SERVICE – Yes, Keep City Clean for Public Health and Safety; Sewer COUNCIL PRIORITY – Improve Public Safety
FISCAL ANALYSIS
The total cost of the emergency repair work of the Escondido Land outfall was $465,701.84. The project was funded from the Wastewater Capital Project (“CIP”) budget for Outfall Maintenance, CIP No. 800079.
PREVIOUS ACTION
On Apri l 30, 2024, City Council adopted Resolution No. 2024 -52, ratifying Proclamation No. 2024 -01, affirming that it was appropriate for City staff to forego competitive bidding procedures and award a contract in an amount not to exceed $1,681,802 with CCL Contracting, Inc. on a ‘time and materials’ basis to perform the emergency repair of the Escondido Land Outfall to safeguard life, health or property. In addition, City Council approved a Budget Adjustment in the amount of $1,700,000.
On May 15, 2024, City Council adopted Resolution No. 2024 -57, reaffirming that there was a need to continue the emergency repairs of the Land Outfall.
BACKGROUND
The City of Escondido (“City”) owns and operates a 14-mile Land Outfall that conveys secondary treated wastewater effluent westerly from Hale Avenue Resource Recovery Facility (“HARRF”) to San Elijo Joint Powers Authority (“SEJPA”) Ocean Outfall via a regulating vault that is owned, operated and maintained 149
Item6.
by SEJPA. The regulating vault is located west of Interstate 5 a nd Manchester Avenue, and north of the San Elijo Lagoon, as shown in Figure 1. Seventy-nine percent of the Ocean Outfall’s capacity is leased to the City. The Land Outfall pipeline was constructed in 1974.
Figure 1
On April 16, 2024, Utilities Staff was notified by staff from the SEJPA and the County of San Diego Department of Parks and Recreation (“County DPR”)/San Elijo Lagoon Nature Center that water was surfacing on the ground near an area where the City’s Land O utfall is located. The weeping of the Land Outfall was located near the San Elijo Lagoon Nature Center at the northern border of the San Elijo Lagoon, west of Interstate 5 and south of Manchester Road. City Staff responded immediately to assess the situation. Water samples were collected and analyzed to determine the likely source of the water, and mitigation measures were taken to contain and prevent travel of leaking secondary effluent. Laboratory test results were consistent with HARRF secondary effluent water quality parameters, indicating that there was a leak on the Land Outfall.
On April 25, 2024, the City Manager, acting in his role as Director of Emergency Services, pursuant to Chapter 7 of the Escondido Municipal Code, specifically Section 7-6(a)(1), made findings of an emergency due to the existence or threatened existence to life, health or property, and approved under his authority the initiation of City Staff efforts to immediately secure a contractor available and competent to perform needed repair to the Escondido Land Outfall.
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As required by the Regional Board, Utilities Staff: prepared and submitted a report of non-compliance for National Pollutant Discharge Elimination System ("NPDES") permit violation; prepared a pre-disturbance damage assessment of the anticipated affected area due to both the weeping of the Land Outfall within the San Elijo Nature Center and the construction associated with repairing the Land Outfall; and continued to collect and analyze water samples, in addition to collection and mitigation of travel leak source water.
On May 13, 2024, the leak was found on the Escondido Land Outfall and repair work began. On May 15, 2024, a condition assessment of the exposed portion of the Escondido Land Outfall was performed by a consultant specializing in pipeline assessment to evaluate its condition. Potential threats to the Escondido Land Outfall pipeline’s integrity were generally low, with soil and groundwater corrosion and stray current being the most likely source of failure with the pipeline joints being at higher risk.
The repair of the Escondido Land Outfall was completed by May 16, 2024. Figures 2, 3, and 4 show the final stages of repair to the Escondido Land Outfall.
Figure 2 Figure 3 Figure 4
Restoration and clean -up efforts followed with backfilling and compacting of the trench, restoration of the street, sidewalk, and pedestrian trail. A 25 -month post -construction revegetation effort to the affected San Elijo Nature Center to mitigate impacts caused by the emergency repairs and includes:
planting, irrigation, maintenance, survivorship monitoring and mortality replacement planting. The disturbance consists of 0.11-acre of graded land that previously contained coastal sage scrub and southern willow scrub habitats. The goal of the mitigation project is to revegetate the area with native species consistent with the vegetation communities that existed during pre-construction conditions.
RESOLUTIONS
a. Resolution No. 2024-119
151
Item6.
RESOLUTION NO. 2024-119
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ESCONDIDO, CALIFORNIA, AUTHORIZING THE
DIRECTOR OF UTILITIES TO FILE A NOTICE OF
COMPLETION FOR THE EMERGENCY LAND OUTFALL
REPAIR
WHEREAS, a section of the City’s Land Outfall was at risk of imminent, catastrophic failure; and WHEREAS, on April 30, 2024, the City Council adopted Resolution No. 2024 -52, confirming that this risk constitutes an emergency, and authorizing staff to purchase ser vices without adopting plans, specifications, working details, or giving notice of bids to award contracts; and WHEREAS, staff subsequently entered into a Public Improvement Agreement with CCL Contracting, Inc. in an amount not to exceed $1,681,802 to perform the repair work; and WHEREAS, pursuant to Resolution No. 2024-57, the City Council declared that emergency repairs should continue; and
WHEREAS, the emergency repairs were completed by CCL Contracting, Inc. in June 2024; and WHEREAS, the City of Escondido staff and the Director of Utilities deem the filing of the Notice of Completion to be valid at this time; and
WHEREAS, this City Council desires at the time and deems it to be in the best public interest to approve the filing of the Notice of Completion.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California , as follows:
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Item6.
1. That the above recitations are true.
2. That the City Council accepts the recommendation of the Director of Utilities.
3. That the City Council hereby approves the request to file a Notice of Completion for the Emergency Land Outfall repair.
153
Item6.
STAFF REPORT
August 14, 2024
File Number 0600-10; A-3525
SUBJECT
AGREEMENT OF PURCHASE AND SALE BETWEEN THE CITY OF ESCONDIDO AND 1501 AUTO PARKWAY, LLC (“BUYER”) AND DECLARATION OF EXEMPT SURPLUS LAND
DEPARTMENT
Economic Development
RECOMMENDATION
Request the City Council adopt Resolution No. 2024-122 authorizing and approving the execution of an Agreement of Purchase and Sale between the City of Escondido and 1501 Auto Parkway, LLC (“Buyer”) for real property located at or about 707 S. Hale Avenue, Escondido, California (“Property”).
Staff Recommendation: Approval (Economic Development: Jennifer Schoeneck, Director of Economic Development)
Presenter: Jennifer Schoeneck, Director of Economic Development ESSENTIAL SERVICE – Yes, Land Use/Development
COUNCIL PRIORITY –Increase Retention and Attraction of People and Businesses to Escondido
FISCAL ANALYSIS
The City received $66,827.28 in annual rent between August 1, 2023 and July 31, 2024, which equates to $5,568.94 per month for 46,936 square feet of flood control channel land. Proceeds from the sale, amounting to $433,000, will be deposited into the General Fund.
PREVIOUS ACTION
On June 28, 2000, t he City Council adopted Resolution No. 2000 -121, authorizing the first lease for the subject Property. On July 20, 2016, the City Council adopted Resolution No. 2016 -107, authorizing the current lease for the Property.
BACKGROUND
On June 28, 2000, the City Council adopted Resolution No. 2000 -121, authorizing the lease of approximately 28,000 square feet of land adjacent to the City’s Flood Control Channel and 1501 Auto Park Way to EJE, Inc., doing business as North County Kia (“Kia”), for vehicle parking. On July 20, 2016, the City 154
Item7.
Council adopted Resolution No. 2016-107, allowing North County Kia to expand its leased premises by an additional 18,639 square feet and extend the lease term through July 2026.
The City received an offer from the adjacent property owner, 1501 Auto Parkway LLC (“Buyer”), to purchase the Property for $433,000, based on an appraisal commissioned by the City. The Property meets the definition of “exempt surplus land” under California Government Code Section 54221(f)(1)(E) as it is surplus land that was a former street, right -of-way, or easement and is being conveyed to the owner of an adjacent property.
The City has no current need for the Property, other than for its existing underground utilities, which will not be impacted by this sale. Therefore, the City will reserve a permanent and perpetual easement across, over, under, and upon the Property for access, ingress, egress, operation, maintenance, repair, construction, installation, abandonment, replacement , and/or alteration of existing City infrastructure and associated appurtenances, both above and below ground.
The sale of this Property to Kia reflects the fair market value for the current highest and best use of the Property.
RESOLUTIONS
a. Resolution No. 2024-122
b. Resolution No. 2024-122 Exhibit “A”- Agreement of Purchase and Sale and Joint Escrow Instructions
155
Item7.
RESOLUTION NO. 2024-122
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ESCONDIDO, CALIFORNIA, AUTHORIZING THE MAYOR
TO EXECUTE, ON BEHALF OF THE CITY, THE
AGREEMENT OF PURCHASE AND SALE OF CITY-OWNED
REAL PROPERTY, AT 707 S HALE AVENUE, ESCONDIDO,
CALIFORNIA, TO 1501 AUTO PARKWAY LLC AND ANY
RELATED DOCUMENTS NECESSARY FOR THE SALE; AND
DECLARING THE SUBJECT PROPERTY AS EXEMPT
SURPLUS PROPERTY
WHEREAS, the City of Escondido is the owner of that certain real property, generally located at 707 S Hale Avenue, Escondido , California 92029, which is a portion of assessor’s parcel numbers 232 - 372-21-00 and 232-542-15-00 (“Property”); and
WHEREAS, the Surplus Lands Act (Gov. Code Section 54220, et seq. ) (“Act”) requires local agencies, prior to disposing of surplus real property, to provide a notice of availability of that property to certain entities for specified uses, including affordable housing, parks and recreation, or open space; and
WHEREAS, the Act defines “surplus land” as “land owned in fee simple by any local agency for which the local agency’s governing body takes formal action in a regular public meeting declaring that the land is surplus and is not necessary for the agency’s use;” and
WHEREAS, certain surplus lands, however, are exempt from the noticing requirements under the Act; and
WHEREAS, the Property meets the definition of “exempt surplus land” under California Government Code Section 54221(f)(1)(E) in that it is surplus land that is a former street, right -of-way, or easement, and is being conveyed to an owner of an adjacent property; and 156
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WHEREAS, none of the characteristics listed under California Government Code Section 54221(f)(2) apply to the property in that it is not within a coastal zone, adjacent to a historical unit of the State Parks System, listed on or determined by the State Office of Historic Preservation to be eligible for the National Register of Historic Places, or within the Lake Tahoe region; and WHEREAS, this City Council finds, determines, and declares that the Property is “exempt surplus land” and deems it to be in the best public interest to dispose of the Property; and WHEREAS, the City received an offer from the adjacent property owner, 1501 Auto Parkway LLC
(“Buyer”) to purchase the property for $433,000, based on an appraisal commissioned by the City; and
WHEREAS, the City wishes to sell the Property at $433,000 and to enter into a purchase agreement with the Buyer; and
WHEREAS, this City Council desires at this time and deems it to be in the best public interest to approve the Agreement of Purchase and Sale of the Property to Buyer.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California, as follows:
1. That the above recitations are true.
2. That the City Council finds , determines and declares that the subject Property is exempt surplus land under the California Government Code.
3. That the City Council authorizes the mayor to execute, on behalf of the City, the Agreement of Purchase and Sale and Joint Escrow Instructions of the City-owned Property, generally located at 707 S Hale Avenue, Escondido, California 92029 to 1501 Auto Parkway LLC, a Delaware limited liability company, and any related documents necessary for the sale. A copy of the Purchase and Sale A greement is attached hereto as Exhibit “A” and is incorporated by this reference. 157
Item7.
Resolution No. 2024-122
Exhibit “A”
0 APN Portions of 232-542-15
and 232-372-21
AGREEMENT OF PURCHASE AND SALE AND
JOINT ESCROW INSTRUCTIONS
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Resolution No. 2024-122
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TABLE OF CONTENTS
SECTION 1 DEFINITION OF TERMS ...................................................................................................................... 1 SECTION 2 PROPERTY ......................................................................................................................................... 3 SECTION 3 PURCHASE PRICE ............................................................................................................................... 3 SECTION 4 ESCROW ............................................................................................................................................ 4 SECTION 5 TITLE .................................................................................................................................................. 4 SECTION 6 CONDITIONS TO CLOSE ESCROW ....................................................................................................... 5 SECTION 7 BUYER’S OBLIGATIONS ...................................................................................................................... 6 SECTION 8 CITY’S OBLIGATIONS .......................................................................................................................... 8 SECTION 9 RIGHT TO ENTER ONTO THE PROPERTY ............................................................................................. 8 SECTION 10 COSTS .............................................................................................................................................. 10 SECTION 11 TERMINATION ................................................................................................................................. 10 SECTION 12 SOLE RELIANCE. ............................................................................................................................... 11 SECTION 13 AS IS, WHERE IS. .............................................................................................................................. 11 SECTION 14 ATTORNEY’S FEES, COSTS AND EXPENSES ....................................................................................... 12 SECTION 15 ASSIGNMENT .................................................................................................................................. 12 SECTION 16 MISCELLANEOUS ............................................................................................................................. 12 159
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Resolution No. 2024-122
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1 CITY OF ESCONDIDO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
This Agreement is made as of March 19, 2024 between the City of Escondido ( City) and 1501 Auto Parkway, LLC, a Delaware limited liability company (Buyer).
RECITALS
The City is the owner of that certain real property, generally located at 707 S Hale Avenue, Escondido CA 92029, and is a portion of assessor’s parcel numbers 232-372-21-00 and 232-542- 15-00 (defined herein as the “Property”). The City desires to sell and Buyer desires to purchase the Property upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Buyer agree that the terms and conditions of this Agreement and the instructions to Escrow Holder with regard to the Escrow, created pursuant hereto are as follows:
Section 1 Definition of Terms
The following words in this Agreement shall have the significance attached to them in this Section unless otherwise apparent from their context.
1.1 Agreement. Agreement means this Agreement of Purchase and Sale and Joint Escrow Instructions.
1.2 Approved Conditions of Title . Approved Conditions of Title means only those conditions to title as provided in Section 5.2 of this Agreement.
1.3 Buyer. Buyer means 1501 Auto Parkway, LLC, a Delaware limited liability company and does not include its heirs, assigns, or successors-in-interest.
1.4 City. The City means the City of Escondido, a California general law City.
1.5 Close of Escrow. Close of Escrow means the date provided in Section 4.2 of this Agreement.
1.6 County. County means the County of San Diego, State of California.
1.7 Deposit. Deposit means the total sum of the funds deposited , as described in Section 3.1 of this Agreement.
1.8 Due Diligence Materials . Due Diligence Materials means those materials specifically described in Exhibit B, attached hereto and incorporated herein by this reference.
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2 1.9 Effective Date. Effective Date means the date this Agreement is countersigned by the Mayor of the City.
1.10 Escrow Holder . Escrow Holder means Chicago Title and Escrow, attn Meg Kilfoil-Dick. With office located at 21 11 Palomar Airport Road, Suite 260, Carlsbad, California, 92008, 760-581-7007, [email protected].
1.11 Feasibility Period . Feasibility Peri od means the period commencing upon the Effective Date of this Agreement and expiring thirty (30) days thereafter.
1.12 General and Special Real Estate Taxes . General and Special Real Estate Taxes means all non-delinquent taxes and charges of the type customarily evidenced by a secured tax bill issued by the Tax Collector of the County, including, but not limited to, amounts allocated to (i) County or City general governmental purposes ; (ii) bonded indebtedness of the County or City; (iii) bonded or other indebtedness and operating expenses of any school, college, sewer, water, irrigation, hospital, library, utility, county service, community facilities district , or other district; and (iv) any other lawful purpose. The Parties acknowledge that prior to the Close of Escrow, the Property may not be subject to General and Special Real Estate Taxes because the Property is owned by a public entity, but such fact shall not be construed to release or relieve Buyer from the obligation to assume responsibility for General and Special Real Estate Taxes as of the Close of Escrow.
1.13 Grant Deed. Grant Deed means the recorded grant deed transferring ownership from the City to Buyer.
1.14 Hazardous Materials . H azardous Materials means any chemical, material, or substance now or hereafter defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, extremely hazardous waste, restricted hazardous waste, toxic substances, pollutant or contaminant, imminently hazardous chemical substance or mixture, hazardous air pollutant, toxic pollutant, or words of similar import under any local, state, or federal law or under the regulations adopted or publications promulgated pursuant thereto applicable to the Property, including, without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (“CERCLA”); the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.; and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (“RCRA”). The term Hazardous Materials shall also include any of the following: any and all toxic or hazardous substances, materials, or wastes listed in the United States Department of Transportation Table (49 CFR Part 302) and in any and all amendments thereto in effect as of the Close of Escrow; oil, petroleum, petroleum products (including, without limitation, crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas 161
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3 usable for fuel, not otherwise designated as a hazardous substance under CERCLA; any substance that is toxic, explosive, corrosive, reactive, flammable, infectious, or radioactive (including any source, special nuclear or by-product material as defined at 42 U.S.C. § 2011 et seq.), carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority; asbestos in any form; urea formaldehyde foam insulation; transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls; radon gas; or any other chemical, material, or substance (i) that poses a hazard to the Property, to adjacent properties, or to persons on or about the Property; (ii) that causes the Property to be in violation of any of the aforementioned laws or regulations; or (iii) the presence of which on or in the Property requires investigation, reporting, or remediation under any such laws or regulations.
1.15 Opening of Escrow. Opening of Escrow means the date as provided in Section 4.1 of this Agreement.
1.16 Party(ies). Buyer or the City may be referred to individually as a Party or collectively as the Parties.
1.17 Property. Property means that certain real property generally located at 707 S Hale Avenue, Escondido CA 92029, and is a portion of assessor’s parcel numbers (APN) 232-372-21-00 and 232 -542-15-00, as further described in Exhibit A, attached hereto and incorporated herein by this reference , reserving therefrom a perpetual easement for the benefit of the City.
1.18 Purchase Price . Purchase Price means the purchase price f or the Property as provided in Section 3.2 of this Agreement.
1.19 Report. Report means a standard preliminary title report issued by the Title Insurer with respect to the Property within five (5) days following the Opening of Escrow.
1.20 Surplus Land. Surplus Land means “surplus land” as defined in the Surplus Land Act, California Government Code § 54220 et seq.
1.21 Title Insurer. Title Insurer means Chicago Title.
1.22 Title Policy. Title Policy means the title policy as set forth in Section 5.1 of this Agreement.
Section 2 Property
The City shall sell the Property to Buyer and Buyer shall purchase the Property from the City on the terms and conditions stated in this Agreement.
Section 3 Purchase Price
3.1 Deposit. Concurrently with the Opening of Escrow, Buyer shall deliver to Escrow Holder the First D eposit sum of FIFTY THOUSAND DOLLARS ($ 50,000.00) 162
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4 which shall be held by Escrow Holder until the expiration of the Feasibility Period, at which time it shall be delivered to the City. If either Party terminates this Agreement prior to the e xpiration of the Feasibility Period, then the Deposit shall be returned to Buyer.
3.2 Purchase Price. City agrees to sell and Buyer agrees to purchase the Property for the Purchase Price of FOUR HUNDRED THIRTY-THREE THOUSAND DOLLARS ($433,000.00).
3.3 Payment of Purchase Price. Buyer shall deposit with Escrow Holder in cash, at least one business day before the Closing Date, the Purchase Price, less the amount of the Deposit.
Section 4 Escrow
4.1 Opening of Escrow. For purposes of this Agreement, the Escrow shall be deemed opened on the latter date of (i) Escrow Holder receiving the Deposit from Buyer , and (ii) Escrow Holder receiving an executed counterpart of this Agreement from both Buyer and the City. Escrow Holder shall notify Buyer and City, in writing, of the date Escrow is opened. Buyer and City agree to execute, deliver, and be bound by any reasonable or customary supplemental escrow instructions of Escrow Holder or other instruments as may reasonably be required by Escrow Holder in order to consummate the tra nsaction contemplated by this Agreement. Any such supplemental instructions shall not conflict with, amend, or supersede any portions of this Agreement. If there is any inconsistency between such supplemental instructions and this Agreement, this Agreement shall control.
4.2 Close of Escrow. Close of Escrow shall occur on or sooner by City giving Buyer a five (5) day notice of such date, provided in no event shall such notice reduce any period granted Buyer under the terms of this Agreement and in no event shall the Close of Escrow take place on a date that is fewer than sixty (60) days fol lowing the Opening of Escrow. If Escrow Holder cannot close escrow on or before the Close of Escrow , Escrow Holder shall nevertheless close this escrow when all conditions have been satisfied or waived unless, prior to the Close of Escrow, Escrow Holder receives a written notice to terminate this escrow from a Party who, at the time the notice is delivered, is not in default under this Agreement.
Section 5 Title
5.1 Policy. As a condition to the Close of Escrow, title shall be evidenced by the willingness of the Title C ompany to issue its ALTA Owner’s Policy of Title Insurance with extended coverage, inclusive of any endorsements requested or required by Buyer or its lender, in the amount of the Purchase Price showing title to the Property vested in Buyer upon conveyance of the Grant Deed subject to the Approved Conditions of Title and such other exceptions to title as may be set forth 163
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5 in the Report and not objected to by Buyer.
5.2 Condition of Title. At the Close of Escrow, title to the Property shall be conveyed to Buyer by the City, and the Grant Deed granting the property subject to the City’s reservation of an easement, shall be recorded in the Official Records of the Recorder of San Diego County, California, subject only to the following Approved Conditions of Title:
A. a lien to secure payment of real estate taxes and assessments, not delinquent;
B. the lien of supplemental taxes;
C. matters affecting title to the Property created by or with the written consent of Buyer or that are waived or deemed approved by Buyer; D. all matters that would be disclosed by an inspection or survey of the Property as approved by Buyer; and
E. all exceptions that are disclosed by the Report, and that are also approved by Buyer in accordance with this Agreement.
5.3 Title Exceptions . The Partie s acknowledge and agree that the listing of the Approved Conditions of Title shall be subject to Buyer’s approval during the Feasibility Period, which approval shall be deemed approved if Buyer (i) does not terminate the Agreement at or prior to the end of the Feasibility Period or ( ii) otherwise objects thereto as set forth in any Buyer’s notice given by Buyer to City pursuant to Section 7.3 of this Agreement.
Section 6 Conditions to Close Escrow
6.1 Conditions to Buyer’s Obligations. Buyer’s obligation to consummate t he transaction contemplated by this Agreement is subject to the satisfaction of the following conditions for Buyer’s benefit or Buyer’s waiver thereof, on or prior to the dates designated below for the satisfaction of such conditions:
A. City’s Obligations. As of the Close of Escrow, City shall have performed all of the obligations required to be performed by City under this Agreement.
6.2 Conditions to City’s Obligations. For the benefit of the City, the Close of Escrow shall be conditioned upon the occurrence and/or satisfaction of each of the following conditions (or City’s waiver thereof, it being agreed that City may waive any or all of such conditions, in its sole and absolute discretion):
A. Buyer’s Obligations. Buyer shall have timely performed all of the obligations required by the terms of this Agreement to be performed by 164
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6 Buyer including, without limitation, the timely deposit of all monies required to be deposited by Buyer under this Agreement.
Section 7 Buyer’s Obligations
7.1 Review of the physical condition and records.
A. Buyer shall have the Feasibility Period , to satisfy itself in its sole and absolute discretion, with all physical, legal , and investment aspects of the Property and its condition and suitability for Buyer (including, without limitation, zoning; the environmental and phys ical condition of the Property; and any other portion of the Property.
B. If, prior to the expiration of the Feasibility Period, Buyer notifies City and Escrow Holder in writing of Buyer’s disapproval of the Property, such disapproval shall act to terminate this Agreement and the Escrow created pursuant hereto, in which event Buyer and City hereby direct Escrow Holder to pay the Deposit to Buyer. If, prior to the expiration of the Feasibility Period, Buyer notifies City in writing of Buyer’s approval of the Property, or if Buyer fails to notify City and Escrow Holder of Buyer’s approval of the Property on or before the end of the Feasibility Period, such approval shall satisfy this condition. Upon satisfaction of this condition, Buyer’s Deposit to the City shall become non-refundable but for seller’s breach.
C. Buyer agrees not to disclose any confidential or propriet ary information contained in any such document or material reviewed by or provided to Buyer except to the extent that such disclosure is required by any judicial proceeding (including a court order), federal, state or local law or is to Buyer’s officers, a ttorneys, prospective lenders, agents or employees (provided that Buyer shall require each of the same to hold such information as confidential). Buyer’s obligation under the immediately preceding sentence shall survive any termination of this Agreement. Buyer shall have until the end of the Feasibility Period to satisfy itself as to the review and approval of such documents and materials and the condition and suitability of the Property.
D. Buyer hereby agrees to indemnify, defend, protect and hold the City, its agents, officers, and legislators, and the Property harmless from and against any and all claims, liabilities, obligations, costs, losses, damages and/or expenses, of any kind or nature (including, without limitation, reasonable attorney’s fees and costs), arising out of or resulting from any submittal (s) affecting the Property by or for Buyer and/or any such entry and/or activities upon the Property by Buyer, its employees, agents, contractors and/or 165
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7 subcontractors and Buyer agrees, at its sole cost and expense, to restore the Property to its condition existing prior to the conduct of any such activities upon the Property by Buyer, its employees, agents, contractors and/or subcontractors. The provisions of this section shall survive the termination of this Agreement and the Close of Escrow and delivery of the Grant Deed.
7.2 Buyer’s Review of Title.
A. Buyer shall receive a standard preliminary title report issued by the Title Company with respect to the Property with in five (5) days following the Opening of E scrow. Buyer shall have until the Feasibility Period to give City and Escrow Holder written notice of Buyer’s disapproval or conditional approval of any matters shown in the Report. The failure of Buyer to give notice on or before the Feasibility Period shall be deemed to constitute Buyer’s approval of the condition of title to the Property unless Buyer shall have terminated this Agreement.
B. If Buyer disapproves or conditionally approves any matter of title shown in the Report, then on or before the expiration of thirty (30) days from the date of City’s receipt of Buyer’s notice, the City may elect to eliminate or ameliorate to Buyer’s satisfaction the disapproved or conditionally approved title matters. City shall give Buyer written notice not later than thirty (30) days after City’s receipt of Buyer’s notice of those disapproved or conditionally approved title matters, if any, which City agrees to either eliminate from the Title Policy as exceptions to title to the Property or to ameliorate to Buyer’s satisfaction by the Clos e of Escrow. If the City does not elect to eliminate or ameliorate to Buyer’s satisfaction any disapproved or conditionally approved title matters, or if City is unable to eliminate or ameliorate to Buyer’s satisfaction all such disapproved matters prior to the Close of Escrow, then Buyer shall elect by written notice to City and Escrow Holder on or before the Feasibility Per iod, to: (1) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; or (2) terminate this Agreement and the Escrow created pursuant hereto, in which event, Escrow Holder shall disburse the amount of the First Deposit together with any interest accrued thereon to Buyer.
7.3 Buyer shall deposit or cause to be deposited with Escrow Holder, the Deposit, as provided in Section 3.1.
7.4 The Closing Statement, signed by Buyer.
7.5 Any transfer tax form, affidavit, or declaration required by any laws with respect to the transfer of title to the Property, signed by Buyer in a form for filing with the applicable governmental authority.
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8 7.6 Such other sums required hereunder or reasonably required by the Title Company for the Close of Escrow and such other documentation and/or instruments required hereunder or reasonably required by City or the Title Company for the Close of Escrow.
Section 8 City’s Obligations
8.1 Deposits by City. At least one (1) business day prior to the Close of Escrow, City shall deposit or cause to be deposited with Escrow Holder the following documents and instruments: Grant Deed. The Grant Deed, duly executed by City and acknowledged, in the form attached hereto as Exhibit C, which is incorporated herein by this reference.
A. Settlement Statement. A closing statement prepared (or approved) by the Title Company and approved by City and Buyer, signed by City.
B. Transfer Tax Documentation. Any transfer tax form, affidavit or declaration required by any laws with respect to the transfer of title to the Property, signed by City in form for filing with the applicable governmental authority.
C. Other Documentation. Such other documentation and/or instruments required hereunder or reasonably required by Buyer or the Title Company for the Close of Escrow (it being understood that City and Buyer shall not be required to execute or deliver any document or instrument that materially increases any Party’s obligations or materially decreases any Party’s rights under the terms and provisions of this Agreement).
Section 9 Right to Enter onto the Property
9.1 Right to Enter the Property . Buyer and its employees, agents , and independent contractors may, prior to the Close of Escrow, reasonably go upon the Property to, at Buyer’s sole cost, inspect, survey , and test the Property and conduct other similarly related activities. Should Buyer's right to purchase the Property terminate, Buyer will, immediately after such termination, at Buyer's sole cost, return the Property to its physical condition immediately before Buyer’s first entrance onto the Property to conduct any of the aforementioned activities . Buyer agrees to give City at least five (5) business days prior written notice before entering the Property when the purpose of such entry is to conduct an environmental or hazardous materials survey or study. Buyer shall not conduct any borings or other invasive testing on or about the Property without first obtaining the prior written consent of City, which consent shall not be unreasonably withheld; provided, however, that Buyer shall provide City with copies of all tests and reports received by Buyer in 167
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9 connection therewith and Buyer shall return the Property to its former condition at the conclusion of such tests and borings.
9.2 Indemnification. Other than in a case of Seller’s negligence Buyer will indemnify, defend, and hold City and the Property harmless from any claim, loss, cost, damage, liability, lien, action or judgment (including, without limitation, City's reasonable attorney’s fees and court costs) arising in connection with the acts or omissions of Buyer or any of its employees, agents , or independent contractors when entering and/or occupying the property Termination of this Agreement will not terminate Buyer's obligations hereunder.
9.3 Insurance. Buyer must have insurance at least as broad as the following prior to entry on the Property and at all times until Close of Escrow:
A. 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, bodily injury, and personal & advertising injury, with limits no less than $2,000,000 per occurrence/$4,000,000 general aggregate
B. Automobile liability insurance of $1 Million combined single-limit per accident for bodily injury and property damage; and
C. 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.
D. Each policy must name the City specifically as an additional insured under the policy on a separate endorsement page, with the exception of the workers’ compensation policy.
E. Buyer agrees to deposit with City, prior to entry to the Site, one Certificate of Insurance for each of the policy or policies necessary to satisfy the insurance provisions of the Feasibility Period and to keep such insurance in effect during the entire Feasibility Period. Said Certificate of Insurance shall be reviewed by, and acceptable to, the City Attorney, prior to entry.
Buyer will also deposit with the City prior to entry, an Additional Insured Endorsement for the Commercial General Liability and Automobile Liability policies naming the City (including its officials, officers, agents, employees, and volunteers) specifically as an additional insured under the policy on a separate endorsement page
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10 Section 10 Costs
10.1 City's Charges. City shall pay (i) the CLTA Standard owner’s title policy premium or its equivalent (but not the added premium for an extended coverage ALTA policy), (ii) one-half (1/2) of Escrow Holder's fee, and (iii) usual City's document- drafting and recording charges.
10.2 Buyer's Charges. Buyer will pay (i) one-half (1/2) of Escrow Holder's fee, (ii) the extra premium for any ALTA title policy or any added endorsements (ordered by Buyer in the manner permitted by the terms of this Agreement) over and above that of the premium of the CLTA Standard owner’s title policy or its equival ent, (iii ) any documentary transfer tax imposed by the County, and (v) usual Buyer's document-drafting and recording charges.
10.3 Broker. Each party represents that no person, corporation, or partnership acting as a real estate broker, finder , or real estate agent has brought about this Agreement.
Buyer shall pay any earned commission due and payable to any Broker. Buyer hereby agrees to indemnify, save harmless, protect , and defend City from and against any claims for brokers’ or finders’ fees for the consum mation of this Agreement. The provisions of this section shall survive the termination of this Agreement, Close of Escrow, and delivery of the Grant Deed.
Section 11 Termination
11.1 Termination. This Agreement must be executed by Buyer within 30 days of the approval of this Agreement by the City Council
11.2 Liquidated Damages. BUYER AND CITY AGREE THAT THE DEPOSIT IS A
REASONABLE ESTIMATE OF CITY'S DAMAGES IF ESCROW FAILS TO CLOSE DUE TO THE DEFAU LT OF BUYER. IN THE EVENT THE CLOSE
OF ESCROW DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF
ANY DEFAULT BY BUYER, BUYER AND CITY AGREE THAT IT WOULD
BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
DAMAGES WHICH CITY MAY SUFFER. THEREFORE, BUYER AND CITY
HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET
DETRIMENT THAT CITY WOULD SUFFER IN THE EVENT THAT BUYER
DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE
PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE
LIQUIDATED DAMAGES AMOUNT. EXCEPT AS EXPRESSLY PROVIDED
ELSEWHERE IN THIS SECTION, SAID AMOUNT SHALL BE THE FULL,
AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF THIS
AGREEMENT BY BUYER OF ITS OBLIGATION TO PURCHASE THE
PROPERTY. UPON SUCH DEFAULT BY BUYER, CITY’S OBLIGATIONS 169
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11 UNDER THIS AGREEMENT SHALL BE TERMINATED AND CITY SHALL
HAVE THE RIGHT TO COLLECT SUCH LIQUIDATED DAMAGES FROM
BUYER AND/OR ESCROW HOLDER. IN ADDITION TO SUCH
LIQUIDATED DAMAGES, CITY SHALL BE ENTITLED TO (I) ENFORCE
ITS REMEDIES UNDER ANY INDEMNIFICATION CONTAINED I N THIS AGREEMENT, AND (II) COLLECT ANY ATTORNEY ’S FEES OR OTHER
COSTS INCURRED IN ENFORCING THE PROVISIONS OF THIS
PARAGRAPH.
____________________ ____________________
Buyer's Initials City's Initials
Section 12 Sole Reliance.
Except as expressly set fo rth herein, Buyer represents and warrants that it is relying solely upon its own inspection, investigation , and analyses of the Property in purchasing the Property and is not relying in any way upon any representations, statements, agreements, warranties, studies, reports, descriptions, guidelines , or other information, documentation , or material furnished by City or its representatives, whether oral or written, express or implied, or arising by operation of law, of any nature whatsoever regarding any of the foregoing matters.
Section 13 As is, Where is.
Except as expressly set forth herein, Buyer represents and warrants that it is acquiring the Property on an “as is,” “where is,” and “with all faults” basis without representation or warranty by City whatsoever including, without limitation, in connection with Hazardous Materials, substances, or conditions; the water, soil, and geology, and the suitability thereof and of the Property for any and all activities and uses which Buyer may elect to conduct thereon; habitability, merchantability, or fitness for a particular purpose of the Property; the manner, construction, condition, and state of repair or lack of repair of the improvements or any other portion of the Property; compliance with laws, statutes, codes, ordinances, orders, decisions, rules and/or regulations; the leases and superior instruments and/or other restrictions, obligations, rights of way or conditions affecting the ownership, use, operation, development or operation of the Property. Further, and without limiting any of the foregoing, Buyer represents and warrants that no patent or latent condition affecting the Property in any way, discoverable or hereafter discovered, shall affect Buyer’s obligation to purchase the Property or any of Buyer’s other obli gations contained in this Agreement, nor shall any such condition give rise to any right of damages, rescission or otherwise against City. Further, and without limiting any of the foregoing, Buyer acknowledges that City has not warranted and does not hereby warrant that any improvements will meet or comply with the requirements of any 170
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12 health, fire, building, zoning, or safety code, ordinance, or regulation of the state of California, or any other authority or jurisdiction , and that City has not warranted an d does not hereby warrant that the Property will meet or satisfy any particular use, purpose, development , or operation, and that City has not made any warranty and does not hereby make any warranty regarding any Hazardous Materials. Further, and without l imiting any of the foregoing, Buyer hereby releases City from all risks and liability (and agrees that City shall not be liable for any special, direct, indirect, consequential, or other damages) resulting or arising from or relating to the ownership, use, condition, location, maintenance, repair, or operation of the Property and City shall under no circumstances be liable for any special, indirect , or consequential damages in the event of any breach by City. The provisions of this section shall survive closing hereunder. Nothing in this section shall in any manner be construed as any representation, assurance or warranty of any kind by City.
Section 14 Attorney’s Fees, Costs and Expenses
In the event legal action is brought to enforce the terms of or to declare a termination of this Lease for reason of breach thereof, the unsuccessful Party shall pay all of the successful Party’s costs of such action, together with reasonable attorney's fees, in an amount to be fixed by the court.
Section 15 Assignment
Buyer shall not assign, transfer, or convey its rights and/or obligations under this Agreement and/or with respect to the Property without the prior written consent of City, which consent City may withhold in its sole and absolute discretion. Any attempted assignment without the prior written consent of City shall be void and Buyer shall be deemed in default hereunder.
Section 16 Miscellaneous
16.1 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 all actions arising from this Agreement shall be exclusively in the North County Division of the San Diego County Superior Court or federal courts located in San Diego County, California.
16.2 Time of Essence . Time is of the essence of each and every term, condition, obligation, and provision of this Agreement.
16.3 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an origina l, but all of which, together, may be assembled into and shall be construed as one document.
16.4 Captions. Any captions to, or headings of, the sections, subsections, paragraphs, or subparagraphs of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or the meaning of any provision of this Agreement.
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13 16.5 No Third Part y Beneficiar ies. Except as otherwise expressly stated herein, this Agreement is entered into solely for the benefit of the Parties hereto, and no third party shall be entitled to directly, or indirectly, base any claim, or to have any right arising from, or related to, this Agreement.
16.6 Amendment. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties.
16.7 Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provis ion or any other provision hereof.
16.8 Fees and Other Expenses. Except as otherwise provided herein, each of the Parties shall pay its own fees and expenses in connection with this Agreement.
16.9 Entire Agreement . This Agreement contains the entire agreement and understanding concerning the subject of this Agreement and supersedes and replaces all prior negotiations or proposed agreements, written or oral. Each of the Parties acknowledges that no other Party, nor the agents nor the attorneys for any Party, has made any promise, representation, or warranty whatsoever, express or implied, not contained herein, to induce the execution of this Agreement, and each of the Parties acknowledges that this Agreement has not been executed in reliance upon any promise, representation, or warranty not contained herein.
16.10 Advice of Counsel . The Parties acknowledge that they have executed this Agreement after having the opportunity to consult with, and receive the advice of, their own counsel.
16.11 Severability. If any portion of this Agr eement as applied to either Party or to any circumstances shall be adjudged by a court to be void or unenforceable, such portion shall be deemed severed from this Agreement and shall in no way effect the legality, validity, applicability, or enforceability of the remaining portions of this Agreement.
16.12 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties.
16.13 Preparation of Agreement . Buyer and City acknowledge that the provisions and language of this Agreement have been negotiated, and agree that no provision of this Agreement shall be construed against either Party by reason of such Party having drafted such provision or this Agreement.
16.14 Execution of Agreement. This Agreement is transmitted for examination only and does not constitute an offer, and the Agreement shall not become effective until a fully executed original hereof shall be delivered to Buyer and City.
16.15 No Equitable Ownership. Prior to the conveyance of title to the Property to Buyer, 172
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14 Buyer shall not acquire, assume, or otherwise obtain any equitable ownership claim or interest in the Property in any manner whatsoever.
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Exhibit “A”
15 IN WITNESS WHEREOF, the Parties below are authorized to act on behalf of their organizations, and have executed this Agreement as of the date set forth below. 1501 AUTO PARKWAY, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
Date:_____________________ ________________________________ Signature
________________________________
Name, Title
CITY OF ESCONDIDO
Date:_____________________ ________________________________ Dane White, Mayor
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
MICHAEL R. MCGUINNESS, City Attorney
By: ______________________________
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Resolution No. 2024-122
Exhibit “A”
16 EXHIBIT A
Real property, generally located at 707 S Hale Avenue, Escondido CA 92029, and is a portion of assessor’s parcel numbers 232-372-21-00 and 232-542-15-00 (defined herein as the “Property”).
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Resolution No. 2024-122
Exhibit “A”
17 EXHIBIT B
Within five business days of the Opening of Escrow, Seller will, to the extent the same are within Seller’s possession or control, deliver to Buyer copies of the following:
Phase I report
Phase II report
Engineering Studies
Improvement Plans
Consultant Reports
ALTA Surveys
Appraisals
Market Research
Financial Projections
Site & Landscape Plans
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Resolution No. 2024-122
Exhibit “A”
18 EXHIBIT C
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STAFF REPORT
August 28, 2024
File Number 0600-10; A-3526
SUBJECT
AWARD CONSULTING AGREEMENT FOR DESIGN OF THE WESTSIDE PARK SKATE SPOT PROJECT
DEPARTMENT
Development Services
RECOMMENDATION
Request the City Council adopt Resolution No. 2024-129 authorizing the Mayor to execute a Consulting Agreement for the design of the Westside Park Skate Spot Project (“Project”) with New Line Skateparks, Inc., determined to be the most qualified and responsive proposal, in the amount of $260,196.
Staff Recommendation: Approval (Chris McKinney, Director of Development Services, and Jonathan Schauble, City Engineer)
Presenter: Jonathan Schauble, City Engineer
ESSENTIAL SERVICE – Yes, Parks Facilities/Open Spaces
COUNCIL PRIORITY – Increase Retention and Attraction of People and Businesses to Escondido
FISCAL ANALYSIS
Park Development Funds have been programmed in the Capital Improvement P rogram budget and are sufficient to fund this agreement and its administration.
PREVIOUS ACTION
N/A
BACKGROUND
The Project will design and construct a new skate spot at Westside Park located at 4th Avenue and Spruce Street. This neighborhood park currently includes children’s play equipment, picnic areas, a basketball court, potable water station, restrooms and a covered picnic shelter. The proposed new skate spot at this park is ideal as it will enhance and serve the needs of the community , and supporting infrastructure is already in place.
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The proposed square footage of the skate spot will be between 7,000 – 10,000 square feet of hard wheel concrete that will provide a safe, designated place for users to develop their skills and enjoy the company of their peers, especially the youth from the neighborhood . It will be a state -of-the-art facility based on the latest skate park design principles and constructed with high -quality materials to ensure durability and longevity. The design should feature a mix of street and tra nsition-style terrain, with elements designed for all age groups and ability levels. The design will meet the ultimate needs of the community, while still allowing for other potential uses in the open lawn area i.e., pick up soccer , while also incorporating Crime Prevention through Environmental Design (“CPTED”) principles.
The design of this skate spot will be based on input from various stakeholders, including staff from the City’s Community Services, Police, Planning, Public Works and Engineering Departments, as well as input received from park users and the community. The public outreach will consist of the following meetings:
an initial meeting consisting with conceptual designs, a second meeting with a design at 30 percent completion, and a third meeting with a design at 60 percent completion. Once public outreach has been completed, construction documents will be prepared and the Project will be advertised for construction bids.
On July 16, 2024, three proposals were received in response to the advertised request for proposals for the Project. After evaluating all proposals received, City staff concluded that New Line Skateparks, Inc. was the most qualified team because they have extensive experience and they successfully designed the Washington Park Skate Spot. After selection of New Line Skateparks, Inc., staff negotiated the detailed scope of work and fee for designing and conducting public outreach for a new skate spot at Westside Park.
Staff recommends that a Consulting Agreement be awarded to New Line Skateparks, Inc. in the amount of $260,196.
RESOLUTIONS
a. Resolution No. 2024-129
b. Resolution No. 2024-129 – Exhibit “A” – Consulting Agreement 179
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RESOLUTION NO. 2024-129
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
AGREEMENT WITH NEW LINE SKATEPARKS, INC. FOR
DESIGN OF WESTSIDE PARK SKATE SPOT PROJECT
WHEREAS, the City Council has allocated funding in the adopted Capital Improvement Program budget for the Westside Park Skate Spot (“ Project”); and WHEREAS, three (3) proposals were received in response to the Notice of Request for Proposals dated July 16, 2024, and New Line Skateparks Inc. was determined to be the most qualified consultant ; and
WHEREAS, this City Council desires at this time and deems it to be in the best public interest to authorize the Mayor to execute a consulting agreement with New Line Skateparks, Inc. in the amount of $260,196.
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 Mayor is authorized to execute, on behalf of the City, a consulting agreement with New Line Skateparks Inc., which is attached and incorporated to this Resolution as Exhibit “A”, and subject to final approval as to form by the City Attorney.
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Resolution No. 2024-129
Exhibit "A"
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Consulting Agreement (v2)
(
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: Michael Tully Project Manager
760-839-4011
("CITY")
And: New Line Skateparks FL, Inc.
a Florida corporation
2305 Historic Decatur Road Suite 102
San Diego, CA, 92106
Attn: Kanten Russell
866-463-9546
("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 provide expert level research, planning, design and development of a permanent, custom, concrete, hard wheel, skate spot with lights to be located at Westside Park located at 333 S. Spruce St., Escondido, CA 92025; WHEREAS, CONSULTANT is considered competent to perform the necessary professional services for the CITY; and
WHEREAS, the CITY and CONSULTANT desire to enter into this Agreement for 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”).
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Exhibit "A"
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Consulting Agreement (v2)
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 $260,196.
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, additiona l 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 faithful ly 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 si gnificant 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 wr itten 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 due to no fault or failure of performance by CONSULTANT, then CONSULTANT shall be compensated based on the work satisfactorily performed at the time of such te rmination. 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 immediately become the exclusive property of the CITY, and shall not be used by CONSULTANT for any other purpose without the CITY’s prior written consent.
7. Insurance Requirements.
a. CONSULTANT shall procure 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 res ults 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 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. 182
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Exhibit "A"
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(3) Workers’ Compensation. Worker’s 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) 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 curre nt 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 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 cov erage 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 maintain 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 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 183
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Consulting Agreement (v2)
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 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 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 by CONSULTANT pursuant to th is 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 du ring 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 in surance requirements in this Agreement.
8. Indemnification, Duty to Defend, and Hold Harmless.
a. CONSULTANT (including CONSULTANT’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 CONSULTANT’s performance of the Services or its failure to c omply with any of its obligations contained in this Agreement, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY, and only to the extent such Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT. Further, in no event shall the cost to defend charged to the CONSULTANT exceed the CONSULTANT’s proportionate percentage of fault. b. CONSULTANT (including CONSULTANT’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 Muni cipal Storm Water Permit (Order No. R9 - 2013-0001, as amended) of the California Regional Water Quality Control Board, Region 9, San 184
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Exhibit "A"
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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 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 CONSULTA NT 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 Agreement, 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 Agreement 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. 185
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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 througho ut the term of this Agreement.
21. Compliance with Laws, Permits, and Licenses . CONSULTANT 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. 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, employe es, 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.
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 a nd 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 prevailing rate and scale to be paid shall be the same as the app licable “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 post 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 Contr act 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, an d 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. 186
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Exhibit "A"
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Consulting Agreement (v2)
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
NEW LINE SKATEPARKS, INC.
Date:
Kyle Dion, Principal
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
MICHAEL R. MCGUINNESS, CITY ATTORNEY
BY:
DATE:
THE CITY OF ESCONDIDO DOES NOT DISCRIMINATE AGAINST QUALIFIED PERSONS WITH DISABILITIES. 187
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Exhibit "A"
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Consulting Agreement (v2)
ATTACHMENT “A”
Scope of Work
A. General
New Line Skateparks FL, Inc., a Florida corporation (“Consultant”) will provide the City of Escondido, a California municipal corporation (“City”) with expert level research, planning, design, and development of a permanent, custom, concrete, hard wheel, skate spot with lights to be located at Westside Park (“Project”).
B. Location
Consultant to p rovide services in relation to the Westside Skate Park located at 4 th Avenue and South Spruce Street in Escondido, CA 92033.
C. Services
Consultant shall provide services per Consultant’s proposal, which is attached hereto as Exhibit 1 and incorporated by this reference. In the event of a conflict between this Agreement (including this Scope of Work) and Exhibit 1, the terms of this Agreement shall prevail. Services shall include:
1. Consultant shall create a design concept that is focused on skateboarding, bu t allows the potential impact of a mixed-use public skatepark, a sense of community, a quality street-skating environment, an engaging and aesthetically pleasing design, environmentally sustainable design, and a cohesive sense of place.
2. Consultant shall prepare Project specifications, incorporating the City’s General Provisions with consultant prepared special provisions and technical specifications, using the Greenbook (Standard Specifications for Public Works Construction and related amendments) format. The City will provide project specific General Provisions to the awarded consultant/contractor.
3. Consultant shall provide survey services for the Project and provide base map data needed to advance design and develop construction drawings. All City benchmarks for elevation and vertical control are based on the National Geodetic Vertical Datum of 1929. Horizontal control surveying we request that nearby survey boundary and Right of Way monuments be searched for and be used for control before any ties are made to the California Coordinate System of 1983 (CCS-83). Please see link to Vertical Control Benchmarks below:
https://www.escondido.org/DocumentCenter/View/1500/City-Benchmarks-PDF
4. Consultant shall prepare a storm water quality management plan (SWQMP) for a priority development project. Please see link to Priority Development Project (PDP) SWQMP below:
https://www.escondido.gov/DocumentCenter/View/2832/PDP-SWQMP-Template-PDF?bidId=
5. Consultant shall prepare a construction phase storm water pollution prevention plan (SWPPP) and erosion and sediment control plan.
6. Consultant shall develop a community outreach plan with corresponding materials and facilitate a minimum of five community meetings. (e.g. potentially Appearance Committee, City Council, and 3 design workshops with the community). The community outreach plan must include types and numbers of meetings and work products that will be generated to engage community members. The outreach plan must also identify approach to facilitation of, and participation, in all community meetings.
7. Consultant shall identifying features to mimic natural street-skating and skatepark environments (including ledges, pads, banks, rails, stair -sets, and other natural transitions) as guided by the City and the community.
8. Consultant shall review and evaluate all aspects, content, and comments from various engagement activities and City staff. Update and revise conceptual designs based on local and 188
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City Appearance Committee input, and produce clear and scaled design development drawings for City review and approval.
9. The Project design generated by Consultant shall include and coordinate with City of Escondido Public Works on irrigation, sod installation around skate park footprint, tree removal, and tree replacement as needed.
10. The Project design shall include a lighting design with photometric analysis study of the proposed lights as part of the overall design plan set which will include proper design installation of shielding based off of study. In addition, Consultant shall also conduct utility coordination between San Diego Gas and Electric for power hook up prior to installation of the lights.
11. The Project location shall not be placed over or in close proximity to the existing sewer line that runs through the middle of the park, please reference Utility Reference Map at the following website. Public Utilities Plan Finder (arcgis.com).
12. The Consultant will fill out Plot Plan Application which can be found on City of Escon dido’s website please see link below:
https://escondido.org/DocumentCenter/View/581/Plot-Plan-Application-PDF
13. A noise memo study will need to be conducted showing decibel levels from the proposed skate park location and what those decibel levels will be at the residential homes that abut the park.
14. Produce schematic designs that identify sections of terrain, access, circulation and elevations.
15. Prepare a detailed breakdown of estimated construction costs based on quantities and unit pricing to construct all park features.
Submit the PDF sets at 30%, 60%, 90%, and 100% final construction complete plans and specifications with cost estimates. Design shall include grading, lighting, landscaping, irrigation and security plans including coordination of service points and securing service orders. 60% and 90% and 100% submittals shall include technical specifications, cost estimate and special provisions. Specifications and bid documents shall be prepared considering City’s general conditions, Greenbook (Standard Specifications for Public Works Construction) and using City’s standard bid forms. Final Plans, Specifications and Estimates are due in 6 months from the Effective Date of this Agreement.
16. Provide bid and construction support, respond to bidder questions, review submittals and assure all work is completed in accordance with approved design and specifications.
17. Final deliverables expected: Final specifications shall be in Microsoft Word, and the final design shall be submitted in PDF format. All studies, charts, graphs, and materials used in preliminary and public review processes shall become the property of the City of Escondido. In addition, the Consultant team shall provide the final textual documen ts in a format consistent with the word processing program in use by the City at the time of final document delivery.
D. Scheduling
Consultant to schedule specific dates of work in advance by contacting Staff Michael Tully at 760 - 839-4011 or [email protected]. Further instructions will be provided upon scheduling.
E. Contract Price and Payment Terms
The contract price shall not exceed $260,196. 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.
F. Term
The term of this Agreement shall be from the Effective Date of the Agreement through August 30, 2026.
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Exhibit "A"
- 10 - CAO:04/23/2024
Consulting Agreement (v2)
G. Other
Consultant’s duties and services under this Agreement shall not include preparing or assisting the City with any portion of the City’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with the City. The City entering this Agreement shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this Project. Consultant’s participation in the planning, discussions, or drawing of Project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Consultant shall cooperate with the City to ensure that all bidders for a subsequent contract on any subsequent phase of this Project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by Consultant pursuant to this Agreement.
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Item8.
Resolution No. 2024-129
Exhibit "A"
- 11 - CAO:04/23/2024
Consulting Agreement (v2)
ATTACHMENT “B”
Personnel List
Pursuant to Section 4 of the Agreement, CONSULTANT shall only assign performance of Services to persons listed below.
1. Kyle Dion, Principal, [email protected], New Line Skateparks; and
2. Kanten Russell, Design Project Director / PM, [email protected], New Line Skateparks; and
3. Andy Stone, Site Manager, [email protected], New Line Skateparks; and
4. Chris Long, Civil Designer, [email protected], New Line Skateparks; and
5. Mary Sori, Senior Skatepark Designer, [email protected], New Line Skateparks; and
6. Trevor Morgan, VP / Community Needs Support, [email protected], New Line Skateparks; and
7. Megan Ulrey, Civil Lead, [email protected], Kimley Horn (subconsultant); and
8. Kaylan Burke, Civil Design/ADA, [email protected], Kimley Horn (subconsultant); and
9. Kirk Ammerman, Constructability, [email protected] Kimley Horn (subconsultant); and
10. Randall Kopff, LA + Irrigation, [email protected], Kimley Horn (subconsultant); and
11. Rich Lucera, Drainage and Stormwater Quality, [email protected], Kimley Horn (subconsultant); and
12. Ace Malisos, Noise Study, [email protected], Kimley Horn (subconsultant); and
13. Jackson Modrak, Lighting, [email protected], Kimley Horn (subconsultant).
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:
Kyle Dion, Principal
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Item8.
PROPOSED METHODOLOGY AND TIM ELINE
Resolution No. 2024-129 EXHIBIT 1 Exhibit "A"
3. Phase 1: Community Consultation and Conceptual Design Task Specific Objective
Timeline
1. Project Initiation, Site and Program Review: The Design Team will meet with the Owner to review the intended program for the skatepark development. At this time, project goals and object ives will be confirmed, timelines set, processes reviewed, lines of communication and protocol established (including a suggested weekly update meeting day and time), safety and ISO 9001 compliant quality assurance measures outlined.
The Design Team will then work with the City to review all base data for the site. This will include survey and geotechnical information as w ell as other pertinent data related to grades, irrigation, existing vegetation, current and future site development as-needed. This information will contribute to the base for all planning and design work.
2. Create Final Base Maps and Site Analysis Drawings for Review with Project Team ‘Skateparks 101’ Design Workshop #1 - Public Input Session 1 Prior to engaging in conceptual design development, the Design Team will conduct the first stakeholder/public information session and design workshop. This ~2hr session usually takes place in the early evening at a time convenient to both parents and youth. The workshop will begin with a presentation introducing the project team and objectives, an overview of the skatepark development journey. Once attendees are familiarized with the project parameters and vast array of skatepark development options and have had chance to participate in a Q&A session with our team, the workshop will transition into a ‘hands on’ component consisting of a ‘dotmocracy’ exercise, + sketching, writing, and interactive discussion regarding and ideas for terrain prioritization, thematic / artistic elements and site integration options. A digital survey will be published for those unable to attend and/or who are more comfortable responding online.
4. Preparation of Preliminary Concept Options and Internal Review with Project Team (including preliminary cost estimates)
5. Community Design Workshop 2 (30% Schematic): 2D renderings of the preliminary concept design options will be brought back to the community for feedback through an interactive design workshop on a weekday evening convenient for parents and youth. The concept presentation will consist of a PowerPoint aided overview of the development process to date, a discussion of the guiding principles established at the first participatory workshop (conducted in our previous scope of work), and a thorough review of the site-specific concept design developed for the park. This will be followed by a general Q&A session and opportunity for attendees to provide any final comments for consideration in written feedback and digital forms.
6. Preparation of Preferred Concept and Internal Review with Project Team (including updated cost estimate)
7. Community Design Workshop 3 (60% Schematic) : Comprehensive photorealistic 3D renderings of the preferred concept design will be brought back to the community for any final feedback through a third interactive design workshop. This will be followed an opportunity for attendees to provide any last comments for consideration in written feedback forms and an online survey.
8. Submission of Final Concept Design and Phase 1 Summary Report: Any last modifications as a result of the concept design presentation will be prioritized for implementation and our team will prepare the final concept design and budget estimate for Project Team review and approval. We will update our drafts so that detailed design considerations are resolved for the site and technical drawings can proceed with ease. The final concept design and budget estimate will be submitted to the City/Owner in digital and hardcopy form and we will stand by for approval to proceed with technical design.
Week 1
Anticipated
August 21, 2024
Week 1
Week 1
Week 5
Week 8
Week 9
Phase 2: Technical Design, Working Drawings and Permitting
10. 11.
12. Begin Working Drawings and Specifications: We will begin work in earnest to complete the technical specifications and working drawings for the youth park project. We anticipate a time frame of 3 weeks until we can submit 60% drawings for discussion and review with City/Owner.
Complete Construction Drawings Reviews: The Technical Design Team will complete all construction detailing, construction documents and specifications for the skatepark project. Drawing sets and cost estimates will be sent to the City and relevant approval bodies for full red line review and approvals at 60%, 90%, and 100%. Update meetings to review and approve potential in -kind donations will also be conducted at each drawing review milestone.
Delivery of Final Construction Drawings: Any last amendments will be included in Issue for Construction (IFC) documents and specifications. Final sealed drawings, specifications, and final budget package will be sent to the Owner in accordance with the desired file scheme. Any changes made during construction will be provided via ‘as built’ drawings upon completion.
Week 10
Week 17
Phase 3: Construction Administration
13. Bid Assistance, Project Inspections and Reporting, Submittal Reviews Our comprehensive Contract Administration program is prepared provide the following services: bid assistance and evaluation, review of concrete mix design/miscellaneous metals/shop drawing submittals, preparation of site instructions, contemplated change notices and change orders as needed, construction progress meetings and reports, substantial and final completion certification, project close-out documentation, and warranty inspections. Administration staff will ensure construction specifications are adequately satisfied and report to the Owner’ Project Manager on progress as it relates to the intended design requirements. Final scope of construction administration program to be negotiated through contract with the City.
Estimated Total
Construction
Timeline 14- 16
Weeks 192
Item8.
Resolution No. 2024-129
Exhibit "A"
P roposed Fee Stru ctu re / Schedule of Effort
hourly rate
Stag e 2:Stakeh older C on sultation,C oncept D evelopm ent and Schem atic D esign Skateparks 101' Design Workshop (Community / Key Stakeholder Meeting #1) 2 2 2 $250.00 large format printing and travel
Development of Preliminary Design Concepts 1 10 8 10 2 4 Technical Review of Preliminary Concept and Budget Options with City) 2 2 2 2 1 2 4 Presentation of Preliminary Concept Options (Community / Key Stakeholder Meeting #2) 2 2
2 $250.00 large format printing and
travel
Development of Preferred Design Concept
1 2 10 10 10
2 4
Technical Review of Preferred Design Concept with City / Appearance Committee Presentation of Preffered Concept (Community / Key Stakeholder Open House #3)
2 2
2 2
1 2
4 12
$250.00 large format printing and
travel
Preparation and Submission of Final Concept Summary Report / 30% Plans (Includes Council Meeting) 13 10 18 Preparation and Submission of 30% Schematic / Permit Drawings TOTAL HOURS 2 6 41 36 46 0 1 3 10 0 24 0 169
$300.00 $900.00 $5,330.00 $4,320.00 $5,060.00 $0.00 $360.00 $975.00 $2,350.00 $0.00 $3,960.00 $0.00 $750.00 $24,305.00
Stag e 3:Techn icalD esig n and C onstru ction D raw in gs Preparation and Review of 60% Technical Drawing Package / Specifications / Cost Estimate / Permitting 1 4 10 10 20 4 10 18 46 Preparation and Review of 90% Technical Drawing Package / Specifications / Cost Estimate / Permitting Preparation and Review of 100% Technical Drawing Package / Specifications / Cost Estimate / Permitting 1 4 10 10 20 6 3 6 11 19 Submission of IFC Drawings/ Specifications / Final Cost Estimate For Bidding 1 4 10 10 20 6 TOTAL HOURS 3 12 30 30 60 12 7 16 29 0 65 0 264
$450.00 $1,800.00 $3,900.00 $3,600.00 $6,600.00 $1,800.00 $2,520.00 $5,200.00 $6,815.00 $0.00 $10,725.00 $0.00 $0.00 $43,410.00
Stag e 4 :B id d in g and C onstruction Support
Bidding Support / Respond to Questions 1 2 2 2 2
Construction Progress and Milestone Reviews 6 6 6
Shop Drawing and Submittal Reviews 1 4 8 8 4
Site Visits and Project Close-Out 18 19 14
TOTAL HOURS 2 0 30 35 30 6 0 0 0 0 0 0 103
$300.00 $0.00 $3,900.00 $4,200.00 $3,300.00 $900.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $12,600.00
O ther Support Services R equested P er the R FP
Electrical Engineering / Lighting Design [KHA] 4 20 40 Local Landscape Architecture (Landscape & Irrigation) [KHA] 8 10 15 15 Storm Water Quality Management Plan (SWQMP + HMP) [KHA] 3 40 10 270 Conceptual Storm Water Pollution Prevention Plan (CSWPPP) [KHA] 3 16 55 Noise Technical Memorandum [KHA] 10 22 30
TOTAL HOURS 0 0 0 0 0 0 3 65 56 37 410 0 571
$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $1,080.00 $21,125.00 $13,160.00 $7,585.00 $67,650.00 $0.00 $0.00 $110,600.00
Topog rah p ic Field Survey [A guirre & A ssociates] $ 16,836.00 P rovision of G eotech nicalStudy for C on firm ed Site [N inyo & M oore] $ 18,900.00
TOTAL PROJECT HOURS 9 30 127 131 196 20 12 102 116 37 521 18 1,319 Total Design Not To Exceed Fees $260,196.00
Should the City to elect to exceed the 50% pervious to impervious surface guidelines, New Line Skateparks will retain the right to renegotiate the scope and fees outlined in this proposal. .
$113,860.00 Skatepark Specific Design Fees Sub-Total
P
firm
ROPOSED FEE STRUCTURE
*individual
NLS NLS NLS NLS NLS Orie KHA KHA KHA KHA KHA KHA
TOTAL
Kyle
Dion
Principal
In Charge
Andy
Stone
Skate Spot
Civil Engineer
Kanten
Russell
Design
Director / PM
Chris
Long
Design
Manager
Mary
Soria
Technical
Design
James
Orie
Structural
Engineer
Senior
Professional
Level
II
Senior
Professional
Level
I
Professional
Level
I
Analyst
Level
II
Analyst
Level
I
Support
Staff
DIRECT
COSTS
$150.00 $150.00 $130.00 $120.00 $110.00 $150.00 $360.00 $325.00 $235.00 $205.00 $165.00 $155.00 Stag e 1:ProjectInitiation,Site A nalysis,Pre-D esign /P rogram C on firm ation Start Up Meeting, Program and Onsite Reviews and Opinion on Prospective Site Area 1 4 8 10 20 1 1 8 8 6 5 Travel and Accomodation Create Base Maps, Site Analysis Drawings and Summary of Key Design + Budget Considerations 4 8 10 20 8 8 8 5 Technical Review Meeting / Planning and Pre-Design Meeting with City 1 1 1 Prepare and Submit Preliminary Program Outline and Design + Budget Brief 1 4 9 9 20 1 1 5 8 8 TOTAL HOURS 2 12 26 30 60 2 1 18 21 0 22 18 212
$300.00 $1,800.00 $3,380.00 $3,600.00 $6,600.00 $300.00 $360.00 $5,850.00 $4,935.00 $0.00 $3,630.00 $2,790.00 $0.00 $33,545.00
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Item8.
ORDINANCE NO. 2024-10R
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ESCONDIDO, CALIFORNIA, AMENDING ESCONDIDO
MUNICIPAL CODE SECTIONS 28 -154 AND 28 -155 TO
REGULATE RECREATIONAL VEHICLE PARKING
WHEREAS, the parking or storing of recreational vehicles, whether motorized or towed, on City of Escondido (“City”) streets and municipal parking lots can negatively affect traffic safety and quality of life for those who live and work in this City; and
WHEREAS, traffic safety impacts of recreational vehicles parked or stored on City streets and municipal parking lots include impaired visibility of pedestrians and drivers, impaired access to driveways and cross-traffic on narrow residential streets, and impaired sight distance for pedestrians and drivers if the recreational vehicle is parked close to an intersection or on a curve; and WHEREAS, quality of life impacts of recreational vehicles parked or stored on City streets and municipal parking lots include illegal discharge of wastewater onto streets, municipal parking lots, or the storm water system, trash or litter left by the recreational vehicle owners, and reduced parking on streets and municipal parking lots for passenger vehicles for residents and business customers; and WHEREAS, allowing recreational vehicles to park on City streets for no more than one 24-hour period at a time, and then, only when parked within 100 yards of the address listed on the recreational vehicle’s Department of Motor Vehicle registration balances the needs of recreational vehicle owners in the City with other users of public streets and municipal parking lots; and WHEREAS, pursuant to California Vehicle Code section 4159, any registered owner of a vehicle who moves or acquires a new address different from the address shown upon the registration card issued for the vehicle shall within 10 days notify the Department of Motor Vehicles of the old and new address; and
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WHEREAS, pursuant to California Vehicle Code section 4160, a ny registered owner of a vehicle who moves or acquires a new address different from the address shown upon the registration card issued for the vehicle shall within 10 days change the address on the registration card; and WHEREAS, allowing for City parking lots to be posted as exempt from the prohibition gives the ability to create additional alternate parking as needed; and WHEREAS, City Resolution No. 2022-176 delegates authority to the City Manager to monitor and regulate by signage and enforcement the usage of all municipal parking lots to ensure that the municipal parking lots are used to their highest and best use for the benefit of l ocal businesses and customers and as otherwise required by law; and
WHEREAS, Chapter 33, Article 25 of the Escondido Municipal Code regulates the parking of recreational vehicles in residential zones when not within completely enclosed structures, permitting such parking in the residential agriculture (R -A), residential estates (R -E), and single -family residential (R -1) zones, and on a property developed with a single-family residence in the multifamily zones (R-2, R-3 and R-4) subject to specific development standards; and
WHEREAS, the City of Escondido offers recreational vehicle parking in the Dixon Lake Campground; and
WHEREAS, there is a permitted and licensed travel trailer park renting space to recreational vehicles within Escondido boundaries; and
WHEREAS, there are multiple travel trailer parks renting space to recreational vehicles throughout the County of San Diego; and
WHEREAS, the availability of alternate recreational vehicle parking balances the needs of all recreational vehicle owners with all City residents and other users of public streets and municipal parking lots; and
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Item9.
WHEREAS, California Vehicle Code section 22507 authorizes local authorities, by resolution or by ordinance, to restrict the parking of certain vehicles on certain stre ets during all or certain hours of the day, including designating certain streets upon which preferential parking privileges are given to residents and merchants adjacent to streets for their use and enjoyment; and WHEREAS, pursuant to California Vehicle Code section 22507, such a parking restriction shall not apply until signs or markings giving adequate notice thereof are placed; and WHEREAS, pursuant to California Vehicle Code section 22507, a resolution or ordinance adopted pursuant to this section ma y contain provisions that are reasonable and necessary to ensure the effectiveness of the parking restriction; and
WHEREAS, pursuant to California Vehicle Code section 22651(n), a peace officer may remove a vehicle located within their jurisdiction if a v ehicle is parked or left standing where a local authority, by resolution or ordinance, prohibited parking and authorized the removal of vehicles , provided that signs are posted giving notice of the removal; and
WHEREAS, Escondido Police Department Instruction 4.2 establishes policy for vehicle impounds if authorized under the authority of the California Vehicle Code; and WHEREAS, prohibiting the parking or storing of recreational vehicles on city streets and municipal parking lots promotes the health, safety and general welfare of the community by preserving the residential character of neighborhoods, preserving the commercial character of business areas, preventing the illegal discharge of wastewater from recreational vehicles int o storm water systems, preventing the illegal disposal of trash on streets or easements, and preventing traffic safety problems associated with recreational vehicles parking or being stored on city streets and municipal parking lots such as impaired visibility for pedestrians and drivers or impaired access to driveways.
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Item9.
NOW THEREFORE, the City Council of the City of Escondido, California, DOES HEREBY ORDAIN as follows:
SECTION 1. That the above recitations are true.
SECTION 2. That Escondido Municipal Code section 28-154 Stopping, Standing, Parking in Alley, is hereby amended and renumbered as section 28-154(a).
SECTION 3. That Escondido Municipal Code section 28-155 Stopping, Standing, Parking in Parkway, is hereby amended and renumbered as section 28-154(b).
SECTION 4. That Escondido Municipal Code section 28-155 is amended with a title of “Recreational Vehicle Parking Restrictions” and to read as follows:
(a) No person shall park any recreational vehicle, as defined in subsection (b ), upon any highway, street, alley, public way, public place, or municipal parking lot in the city of Escondido except:
(1) A recreational vehicle may be allowed to park for a total of 48 hours before and 48 hours after a trip to facilitate the loading and unloading of that vehicle or trailer , provided that the vehicle is parked within 100 yards of the address to which it is registered with the California Department of Motor Vehicles.
(2) If that vehicle is involved in an emergency, or that vehicle is being repaired under emergency conditions. However, a vehicle that cannot be readily repaired and moved may be impounded pursuant to California Vehicle Code section 22651(n).
(3) If that vehicle is parked in a municipal parking lot where a sign is pos ted authorizing recreational vehicle parking.
(4) If that vehicle is owned by a federal, state, or local agency. (5) If the Director of Emergency Services has declared a local state of emergency pursuant to Chapter 7 of the Code, the Director of Emergency Services may temporarily suspend subsection (a) as part 197
Item9.
of that declaration. The suspension of subsection (a) shall expire upon the termination of the local state of emergency unless an earlier time for expiration is provided in the proclamation of local emergency. (6) When the City of Escondido has issued a special event permit that authorizes the parking of such vehicles in designated areas.
(b) For the purposes of subsection (a), the term “recreational vehicle,” includes, but is not limited to, the following:
(1) A “recreational vehicle” (California Health & Safety Code section 18010); (2) A “camp trailer” (California Vehicle Code section 242); (3) A “fifth-wheel travel trailer” (California Vehicle Code section 324); (4) A “house car” (California Vehicle Code section 362); (5) A “trailer coach” (California Vehicle Code section 635); (6) A “mobilehome” (California Vehicle Code section 396); (7) A “semi-trailer” (California Vehicle Code section 550). (8) Boats and/or trailers;
(9) Trailers used for the transport of equipment, vehicles, or animals; and (10) Folding camper trailers.
(c) A violation of subsection (a) is punishable as an infraction. 198
Item9.
(d) Any recreational vehicle stopped, parked or left standing in violation of subsection ( a) may be removed and impounded 22651(n).
SECTION 5. SEPARABILITY. If any section, subsection , sentence, clause, phrase or por tion of this ordinance is held invalid or unconstitutional for any reason by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions.
SECTION 6. That as of the effective date of this ordinance, all ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 7. That the City Clerk is hereby directed to certify to the passage of this ordinance and to cause the same or a summary to be published one time within 15 days of its passage in a newspaper of general circulation, printed and published in the County and circulated in the City of Escondido. 199
Item9.
ORDINANCE NO. 2024-11
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ESCONDIDO, CALIFORNIA, APPROVING A GENERAL PLAN
AMENDMENT FOR CONSISTENCY CHANGES TO THE
LAND USE AND COMMUNITY FORM CHAPTER AND EAST
VALLEY PARKWAY AREA PLAN
WHEREAS, the State of California requires cities and counties adopt a comprehensive long -term General Plan for the social, physical, and economic development of the City; and
WHEREAS, the General Plan expresses the community’s development goals and embodies public policy relative to the distribution of future land uses, both public and private; and
WHEREAS, Government Code section 65301(b) authorizes jurisdictions to develop and adopt Area Plans to address a particular region or community within the General Plan’s planning area; and
WHEREAS, the City of Escondido’s City Council approved the East Valley Parkway Area Plan on September 22, 2004 through Resolution No. 2004-136; and
WHEREAS, on July 19, 2023 City Council adopted Ordinance No. 2023 -10 establishing the East Valley Specific Plan and rezoning a portion of the East Valley Parkway area from General Commercial (CG), Hospital Professional (HP), and Commercial Professional (CP), to Specific Plan (S-P); and
WHEREAS, the rezoning of land uses by the EVSP created discrepancies between the previously adopted East Valley Parkway Area Plan and the General Plan’s Land Use and Community Form chapter; and
WHEREAS, California Government Code section 65359 requires that any specific plan or other plan of the city or county that is applicable to the same areas or matters affected by a General Plan 200
Item10.
amendment shall be reviewed and amende d as necessary to make the specific or other plan consistent with the General Plan; and
WHEREAS, chapter II of the Governor’s Office of Planning and Research’s 2017 General Plan Guidelines identifies Area Plans to be part of the General Plan. Therefore, an Area Plan may be amended through the General Plan Amendment process; and
WHEREAS, the City of Escondido is amending the General Plan and East Valley Parkway Area Plan under Planning Case No. PL24 -0007, for the purposes of clean up and consistency with t he East Valley Specific Plan; and
WHEREAS, on June 25, 2024, the Planning Commission held a duly noticed public hearing as prescribed by law, at which time the Planning Commission received and considered document consistency text amendments and recommendation of the Planning Division and gave all persons full opportunity to be heard and to present evidence and testimony regarding the Project; and
WHEREAS, Planning Commission voted 5 -0 approving the Planning Division’s proposed text amendments, with two Commissioners absent; 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, on August 7, 2024, the City Council of the City of Escondido did hold a duly noticed public hearing as prescribed by law. At said hearing, this City Council received and considered the reports and recommendations of the Planning Commission and City staff, and gave all persons full 201
Item10.
opportunity to be heard and to present evidence and testimony respecting said matter. Evidence was submitted to and considered by the City Council, including, without limitation:
a. Written information including revisions to maps, text, graphical information, and other material, submitted as part of the Project;
b. Oral testimony from City staff, interested parties, and the public;
c. The staff report, dated August 7, 2024, with its attachments as well as City staff’s recommendation on the Project;
The City Council of the City of Escondido, California, DOES HEREBY ORDAIN as follows:
SECTION 1. That the above recitations are true.
SECTION 2. Proper notices of a public hearing have been given and public hearings have been held before the Planning Commission and City Council on this issue.
SECTION 3. After consideration of all evidence presented, and studies and investigations made by the City Council and on its behalf, the City Council makes the following substantive findings and determinations, attached hereto as Exhibit “A,” relating to the information that has been considered.
SECTION 4. That the proposed amendments to the East Valley Parkway Area Plan and General Plan Land Use and Community Form chapter are consistent with the Escondido General Plan and applicable Elements were reviewed as part of the amendment drafting process to ensure consistency.
SECTION 5. The General Plan Amendment is not considered a “Project” under the California Environmental Quality Act (“CEQA”) and is therefore exempt from further review, as further 202
Item10.
described in the staff report. The General Plan Amendment would not, in and of iteself, result in development or any other material change to the environment.
SECTION 6. That, considering the Findings of Fact and applicable law, the City Council hereby approves said amendments, attached as Exhibit “B” and Exhibit “C” and hereto and incorporated herein by this reference as though fully set forth herein.
SECTION 7. SEPARABILITY. If any section, subsection sentence, clause, phrase or portion of this ordinance is held invalid or unconstitutional for any reason by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions.
SECTION 8. That as of the effective date of this ordinance, all ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 9. That the City Clerk is hereby directed to certify to the passage of this ordinance and to cause the same or a summary to be published one time within 15 days of its passage in a newspaper of general circulation, printed and published in the County and circulated in the City of Escondido. 203
Item10.
Ordinance No. 2024-11
Exhibit “A”
EXHIBIT “A”
PLANNING CASE NO. PL24-0007.
FACTORS TO BE CONSIDERED / FINDINGS OF FACT
Environmental Determinations:
1. Pursuant to the California Environmental Quality Act (Public Resources Code section 21000 et. seq.) (“CEQA”), and its implementing regulations (14 C.C.R. § 15000 et seq.) (“CEQA Guidelines”), the City of Escondido (“City”) is the Lead Agency for the projec t (“Project”), as the public agency with the principal responsibility for approving the Project.
2. The General Plan Amendment to the East Valley Parkway Area Plan and General Plan is not considered a “project” under Article 20, Section 15378 , of the CEQA Guidelines. The term project refers to a whole of an action which has a potential for resulting in either a direct physical change or a reasonably foreseeable indirect physical change in the environment. A project does not include organizational or administrative activities of governments that will not result in changes in the environment.
3. The General Plan Amendment to the East Valley Parkway Area Plan and General Plan is solely to create consistency between the aforementioned documents and the newly adopted East Valley Specific Plan (“EVSP”) . A Program Environmental Impact Report (“PEIR”) was previously prepared June 2023 to address potentially significant impacts resulting from the implementation of the EVSP.
Amendments (Escondido Zoning Code Section 33-1263):
1. That the public health, safety and welfare will not be adversely affected by the proposed change;
The General Plan Amendment corrects internal inconsistencies, improves readability, and creates references to the recently adopted EVSP. The proposed changes will improve health, safety and welfare of the community by making it easier for staff, decisionmakers, developers, and the public to understand the City of Escondido’s land uses, standards, and vision for the East Valley community.
2. That the property involved is suitable for the uses permitted by the proposed amendments in that;
204
Item10.
Ordinance No. 2024-11
Exhibit “A”
The General Plan Amendment does not apply to a project-specific site. The proposed text amendments would be Citywide and would only affirm already adopted changes for properties within the EVSP and East Valley Parkway Area Plan.
3. That the uses permitted by the proposed change would not be detrimental to surrounding properties;
The General Plan Amendment does not affirm any changes to uses permitted within the City, as the amendments would not impact already adopted and permitted uses from the EVSP, East Valley Parkway Area Plan, and General Plan. The amendment only clarifies and ensures consistency of information between documents.
4. That the proposed amendments are consistent with the adopted general plan; The General Plan Amendment creates a section for the newly adopted EVSP, an d provides an updated vision in line with the EVSP and East Valley Parkway Area Plan that seeks to revitalize areas of the East Valley Parkway communities. The proposed changes are consistent with the General Plan’s Land Use Goal No. 17 which seeks to develop a dynamic General Plan that is responsive to community values, visions, needs, economic conditions, resource availability, and state and federal legislation.
5. That the proposed change does not establish a residential density below 70% of the maximum permitted density of any lot or parcel of land previously zoned R -3, R-4, or R -5 unless the exceptions regarding dwelling unit density can be made pursuant to the provisions set forth in Article 6;
The General Plan Amendment corrects internal inconsistencies, improve s readability, and creates references to the recently adopted EVSP. The EVSP accommodates and increases residential, mixed-use, and general commercial land uses . This General Plan Amendment does not affect densities but only provides clarification and consi stency across City policy documents.
6. That the relationship of the proposed change is applicable to specific plans.
The General Plan Amendment reinforces the City’s Specific Plan standards by clarifying inconsistencies between EVSP and East Valley Parkway Area Plan boundaries, zoning labels, allowable uses, and standards.
205
Item10.
II. Land Use and Community Form
Introduction
How land uses are arranged in a community
helps establish its identity and character.
Although Escondido is largely developed,
there is a diversity of newly constructed and
established urban, suburban, and rural neigh-
borhoods with unique qualities such as views;
landscaping; types of streets and housing;
commercial activity; lively public spaces;
schools; and civic buildings that combine to
create a unique “small town” character.
Escondido’s General Plan Land Use Element
arranges major land uses to preserve and en-
hance the integrity and character of estab-
lished residential neighborhoods, provide op-
portunities for future growth to meet the
community’s vision, and strengthen the eco-
nomic viability of employment areas and
commercial activity centers. Policies in this
Land Use Element will guide Escondido’s
efforts to become a more integrated, walkable,
and sustainable community that will enrich and
improve residents’ quality of life.
The Land Use / Community
Form Element’s Purpose
The Land Use Element is one of seven ele-
ments required by state law to be included in
California General Plans. The Element guides
citizens, planners, and decision makers on the
desired pattern of growth, development and
change in the community. The purpose is to
ensure that a balance of residential, employ-
ment, commercial, recreational, civic/cultural
and open space land uses are provided at
appropriate intensities, locations and combi-
nations to enhance Escondido’s sustainability.
Goals identified in the Land Use / Community
Form Element foster Escondido’s role as an
urban center. The Plan emphasizes the revi-
talization of the downtown area and estab -
lished neighborhoods, promotes economic
development in the form of attractive, sus-
tainable, economically viable industrial and
commercial areas, and concentrates high-
intensity activities in the urban core.
Ordinance No. 2024-11
Exhibit "B"
206
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Page II-2 Escondido General Plan Land Use and Community Form
A. Relationship to Other Elements in the
General Plan
The Land Use and Community Form Element serves a guide for future development. The Element’s relationship to other General Plan components is central for many important aspects regarding the community’s growth. For example, different land uses influence the capacity and service levels of transportation and utility systems discussed in the Mobility and Infrastructure Element. Residential standards described in this General Plan Element relate to the city’s housing goals, programs and objectives, discussed in the Housing Element. Land use decisions also affect Escondido’s economy and have direct bearing on the policies and strategies outlined in the Economic Prosperity Element.
The General Plan includes development strategies for several new employment nodes, and advocates intensification of certain areas as mixed use and higher intensity e mployment centers to provide a stronger jobs-housing balance. Escondido’s growth and development patterns are to be managed in a way that does not overwhelm or reduce the quality of community services, safety and protection provided by the city. The goals and policies of the Community Services, Community Safety, Public Utilities, Noise, and Growth Management Elements are related to land use because they affect property designations and requirements. An essential feature of this Element is the General Plan Land Use Map (Figure II-1) that identifies the location of all land uses in the planning area and key for directing land use decisions that integrate the community’s vision.
Escondido’s Street Fair
Grand Avenue at Broadway
Ordinance No. 2024-11
Exhibit "B"
207
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Figure II-1
=
Figure II-1
Escondido General Plan Land Use and Community Form Page II-3 Ordinance No. 2024-11
Exhibit "B"
Item10.
Page II-4 Escondido General Plan Land Use and Community Form
Ordinance No. 2024-11
Exhibit "B"
209
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Escondido General Plan Land Use and Community Form Page II-5
B. Escondido’s Community Character
Escondido’s geographic setting, characterized by hills and mountains surrounding an open valley bisected by Escondido Creek, governs the manner in which the community has matured over its long history.
Expanding out from its historic downtown and urban core (with their traditional street grid patterns are established single and multi-family neighborhoods that have long since replaced agricultural groves.
Densities and intensities diminish and streets follow topographic contours in outlying areas as the community transitions to higher elevations where agricultural operations remain in many areas. In this outer area there are also several large natural expanses of preserved open space that buffer Escondido from surrounding communities. The community’s primary employment area parallels Highway 78 and the rail line first constructed in the 1880s that links Escondido to the coast.
Interstate 15 bisects Escondido in a north-south direction that provides connections to San Diego and Riverside County.
Escondido as viewed from
Lake Dixon Regional Park
Ordinance No. 2024-11
Exhibit "B"
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Page II-6 Escondido General Plan Land Use and Community Form C. Land Use Distribution
Escondido’s current land uses are arranged in a pattern largely defined by the community’s historic growth and transition from an agricultural center at the terminus of a rail line to a town core surrounded by residential neighborhoods with supporting businesses and services.
Based on an inventory conducted for the updated General Plan land use categories, single and multifamily residential uses represented the dominate land uses occupying 36,145 acres and 71% percent of Escondido’s General Plan. The pie chart and bar graph in Figure II-2 identify the division of General Plan land uses.
Figure II-2
General Plan Land Uses
Office
Commercial Industrial
Single Family
Residential
37.9%
Tribal Lands
0.6%
0.9% 2.1%
2.7% Multifamily
Residential
3.0%
Freeways, Roads,
Flood Channels
8.4%
Public Land,
Open Space
15.1%
Rural Residential
29.3%
“For every site there is an ideal use.
For every use there is an ideal site.”
John Ormsbee Simonds
Landscape Architect
and City Planner
Ordinance No. 2024-11
Exhibit "B"
211
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Escondido General Plan Land Use and Community Form Page II-7 Figure II-3a
Example of various densities for
residential development on a
similarly sized parcel.
D. Land Uses, Standards and Character
State planning law requires that General Plans establish land use designations for the various areas in the plan as well as standards of population density and building intensity. The city’s Zoning Ordi- nance also specifies standards for development, such as set-backs, lot coverage, parking, open space thresholds, etc. that directly bear on properties’ development density and / or intensity. In concert with Smart Growth principles, the Land Use Matrix (Figure II-6) identifies each General Plan land use designation and specifies (1) Urban Form Standards, (2) Description of Uses, and (3) Urban Form Charac - teristics described below.
1. Urban Form Standards
Urban form standards prescribe the maximum density for residential uses, and building intensity for nonresidential and mixed-use develop- ments and the maximum building height (Figure II-3a). Standards of building density for residential uses are stated as the allowable range (i.e. minimum and maximum) of dwelling units per net acre are further elaborated in policies at the end of the Land Use Element.
Figure II-3a
Ordinance No. 2024-11
Exhibit "B"
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Page II-8 Escondido General Plan Land Use and Community Form Standards of building intensity for nonresidential and mixed-use, commercial, and industrial development are expressed as floor-area ratios (FARs). The FAR is the ratio of gross floor area of a building on a lot in relation to the area of the net lot (or parcel), exclusive of existing or proposed streets and rights-of-way. The gross floor area of a building is the sum of the square feet of each floor of the building, excluding cellars and square feet in open balconies. In the case of mixed-use developments that include residential components, the FAR includes residential building square footage, and the density range is not applicable.
Figure II-3b
As illustrated in Figure II-3b, features such as building square footage, building height, FAR, and the percent of lot coverage are interrelated. As an example, a building with 20,000-square feet of useable space on a 40,000-net square foot parcel yields a 0.50 FAR.
This could describe a variety of building scenarios including a single- story building occupying half the parcel, a two-story building occupying approximately one-fourth of the parcel, or a collection of buildings occupying approximately one-third of the parcel.
While FAR provides for the overall development size and intensity, it does not specify the form or character of the building. Different interpretations of the same FAR can result in buildings of very different character. The urban form characteristics for each land use designation describe key physical form attributes envisioned for the designation. In addition, city regulations such as zoning, design guidelines, height limits, building setbacks, open space requirements, etc. will guide the form of buildings within a given FAR range.
In the case of mixed-use develop-
ments that include residential com-
ponents, the FAR includes resi-
dential building square footage, and
the density range is not applicable.
Figure II-3b
Various building configurations
represented by different Floor Area
Ratios (FARs) of 0.5, 1.0 and 2.0.
Ordinance No. 2024-11
Exhibit "B"
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2. Description of Uses
The Land Use Matrix (Figure II-6) outlines the types of allowed uses permitted in each of the General Plan’s land use categories. The major categories of land use types in Escondido include residential, commercial, office, industrial, mixed-use, public facilities, parks/open space, and tribal lands. Corresponding zoning specifies the permitted and conditional uses for each category as well as applicable develop- ment standards.
3. Urban Form Characteristics
Urban form characteristics describe key physical features and attributes envisioned for each land use designation to help developers, decision makers, and the public share a common understanding of the qualities that contribute to good design. The guidelines also assist in understanding the implications of individual project design on the form and character of the community as a whole. These qualities include characteristics such as the height and bulk of buildings, the location of buildings on their parcels, the relationship of buildings to streets, the height of buildings relative to adjacent neighborhoods, and the location and character of parking and pedestrian facilities. Unlike the Description of Uses and Urban Form Standards described above, Urban Form Characteristics are stated as recommendations, not as required standards.
Escondido General Plan Land Use and Community Form Page II-9 Urban form characteristics
described in the Land Use Matrix
are recommended key physical
features and attributes envisioned
for each land use designation to
help developers, decision makers,
and the public share a common
understanding of the qualities that
contribute to good design.
Aerial view of Escondido looking
west with Palomar Hospital and
downtown in the foreground
Ordinance No. 2024-11
Exhibit "B"
214
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Page II-10 Escondido General Plan Land Use and Community Form
E. Core Themes of the Land Use and
Community Form Element
Three core themes emerged as citizens articulated their vision for Escondido’s future during the General Plan’s collaborative process of conducting public outreach and gathering community input. The themes centered on: 1) Opportunities to Live, Work and Play; 2) Protect, Preserve and Revitalize Neighborhoods; and 3) Conserve and Sustain Resources. The Land Use and Community Form Element in- corporates these themes as a central focus and has identified strategies for addressing these themes to implement the community’s vision.
1. Opportunities to Live, Work and Play
The ability for Escondido to be a community where residents can live, work and play was an important theme expressed at General Plan public outreach sessions. Many residents desire to work in the community but commute elsewhere due to insufficient local employ- ment opportunities. Land use studies revealed Escondido’s low percentage of land area devoted for employment purposes compared with neighboring communities. This results in an ‘out migration’ of many residents who leave Escondido as part of their daily commuting pattern. In addition, 2010 census data revealed that Escondido’s per capita income and educational attainment lagged behind surrounding communities, suggesting a need for providing citizens more oppor- tunities to enhance their job skills.
Residential construction in
Downtown Escondido.
Housing is a cornerstone of
downtown development, a
key ingredient of a strong
downtown economy and will
facilitate the implementation
of the General Plan’s Core
Themes. Downtown residents
create and expand the market
for downtown businesses by
demanding a diverse mix of
products and services
including retail, restaurant
and entertainment facilities,
thus enhancing opportunities
to live, work and play.
Downtown and ‘urban core
area’ housing take the
pressure off intensifying
densities in established single
family neighborhoods, thus
preserving the community’s
character. Downtown and
‘urban core area’ housing
also involves a more efficient
use of the city’s infrastructure,
reducing reliance on the
automobile which conserves
and sustains resources.
Ordinance No. 2024-11
Exhibit "B"
215
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Escondido General Plan Land Use and Community Form Page II-11 While there are a number of recreational and entertainment venues in the community, many citizens expressed a desire for more varied options that would attract a wider audience and have broader social appeal. Parents expressed a desire for activities and facilities that would enhance their grown children’s desire to remain in the community.
School-age students and younger adults expressed a desire for more ‘fun things to do.’ Promoting educational and job training opportunities were raised in concert with the importance of ensuring a safe and healthy community environment. A focus on recreational amenities, and community facilities, such as libraries, open space and parkland were viewed as opportunities for residents to lead a more active and educated way of life.
2. Protect, Preserve, and Revitalize Neighborhoods
Throughout the public participation process it was evident that residents take pride in their community and value Escondido’s small- town atmosphere. Essential for Escondido being a desirable place to live revolves around residents’ satisfaction that their neighborhoods are safe, livable and aesthetically pleasing. The community’s desires to protect neighborhoods from crime, blight, and incompatible adjacent land uses that negatively affect their quality of life were identified as important priorities.
In addition, recognizing that many homes and neighborhoods are over 75 years in age, and that Escondido is a community with historical significance, residents acknowledged that protecting and preserving local history is vital for blending the strength of the past with the promise of the future. Residents also expressed a desire to incorporate additional features and land uses that would be unique to Escondido.
Conversations centered on features such as gateways, distinctive land use districts, and public places that would allow residents to gather and socialize. Such features would set Escondido apart from other communities and introduce a “sense of arrival” and “sense of place” unique to other areas and revitalize the community.
Revitalizing Escondido Creek
as 6+ mile ‘Urban Linear Park’
through the entire community
facilitates the General Plan’s
Core Themes. The path links
residential neighborhoods to
shopping, healthy recreation,
education and employment
opportunities. The Creek’s
improvement will expand the
community’s opportunities for
live, work and play, and serve
as a tool for revitalizing neigh-
borhoods and shopping areas.
The creek path serves as a
convenient and centralized
alternative transportation route
and reduces reliance on the
automobile thus conserving and
sustaining resources.
Ordinance No. 2024-11
Exhibit "B"
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Page II-12 Escondido General Plan Land Use and Community Form
3. Conserve and Sustain Resources
Residents acknowledge that Escondido is part of a larger regional environment with only finite resources available for current and future generations. Conserving and sustaining community resources have become an important topic in light of the challenging economic climate of the time and the obligation to plan for the future. Economic sustainability includes supporting economic growth in the city, expanding jobs and markets, relying on local businesses, and pro- moting an economically thriving community.
The concept of conserving and sustaining resources dovetails with residents’ desires to protect, revitalize and preserve existing neighbor- hoods, open space areas, and quality of life. Bolstering local rec- reational, educational and occupational opportunities also allows residents to drive less and spend more dollars locally, thereby pro- moting economic sustainability as well as enhancing physical and social opportunities closer to home.
“Sustainability is meeting the needs
of the present without compromising
the ability of future generations to
meet their needs.”
World Commission on Environment
and Development (WCED)
Escondido’s 5,300 acres of
permanent natural open space
are a central component of the
General Plan’s core theme of
conserving and sustaining
natural resources; Daley Ranch
is the largest conservation
preserve accessible to the
public totaling over 3,000 acres
and includes over 300 plant and
animal species and diverse
habitat communities.
Ordinance No. 2024-11
Exhibit "B"
217
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Escondido General Plan Land Use and Community Form Page II-13
F. Strategies to Address the Core Themes
for Implementing the Community Vision
Strategies for addressing the three core themes include: 1) application of smart growth principles; 2) development of new and revitalized opportunity areas; 3) mixed-use transit-oriented development; and 4) educational promotion. The strategies are in concert with updated planning principles that refocus attention on existing infrastructure investments rather than extending new and costly facilities into undeveloped territories.
Areas have been identified in the General Plan where these strategies will be focused to achieve the community’s long-term goals. The strategies work together to: provide more opportunities for Escondido residents, conserve resources, provide greater housing choices, offer options for alternative transportation and reduce environmental impacts, thereby creating a greater sense of community resulting in an enhanced quality of life.
1. Smart Growth Principles
Escondido is largely built-out with limited vacant land available for new development. Updated General Plan policies will guide citizens, developers, city staff, and decisions makers over the next decades to facilitate the community’s long-term vision. The plan’s smart growth principles represent a shift in focus from ‘how to develop vacant land’ to ‘how to reinvest in existing neighborhoods.’
“Smart growth development is guided
by a set of principles that promote
strong communities with a range of
opportunities for all residents.”
Designing for Smart Growth
SANDAG publication
Smart Growth developments
like the shopkeeper units in ‘Via
Roble’ on Escondido Boulevard
are an effective strategy for
implementing the community
vision, expanding housing
options, fostering business,
reducing sprawl, conserving
infrastructure, and revitalizing
existing neighborhoods
Ordinance No. 2024-11
Exhibit "B"
218
Item10.
Page II-14 Escondido General Plan Land Use and Community Form Escondido’s smart growth principles preserve and enhance single family development patterns in established neighborhoods, maintains residential densities in outlying areas to accommodate growth, and guide additional employment and residential growth toward down- town and urbanized sectors along key transportation corridors. This strategy ensures housing options for all residents, capitalizes on the city’s infrastructure investment, and provides opportunities for achieving Escondido’s vision. Basic smart growth principles include:
Fostering an attractive community with a strong sense of place, including such features as gateways, public art, landscaping and unique land use districts;
Strengthening and enhancing existing neighborhoods;
Preserving open space, natural beauty, and critically sensitive areas; Incorporating “Complete Streets” features to create walkable and bikeable neighborhoods;
Creating a range of housing opportunities and choices; Providing a mix of compatible land uses;
Taking advantage of more compact, vertical, higher density and higher intensity building design;
Integrating residential, employment, entertainment, shopping, and services in close proximity to reduce reliance on the automobile; Providing a variety of transportation choices;
Making decisions predictable, fair and cost effective; and Encouraging community and stakeholder collaboration in de- velopment decisions.
2. New and Revitalized Opportunity Areas
Opportunity Areas are key locations for implementing the commu- nity’s vision that respond to citizens’ core theme of enhancing Escondido’s livability. A sufficient supply of employment producing land is a critical component of a healthy and prosperous city. In order to enhance economic quality of life an adequate supply of land offering a variety of employment opportunities for residents of all skills and educational levels must be available. Also critical are redevelopment opportunities for increasing employee densities in areas where buildings and properties are underutilized.
The General Plan strives to achieve these objectives by increasing its employment land base in several new areas to accommodate the types and amount of economic development and growth anticipated in the future, while encouraging efficient and sustainable use of public facilities and infrastructure. New areas include: 1) Interstate 15 at Felicita Road, 2) North and south of the Escondido Research and Technology Center SPA #8, and 3) Interstate 15 at El Norte Parkway SPA #13.
Escondido’s
Smart Growth Strategy
Capitalize on the city’s infrastructure
investment by:
Preserving and enhancing single
family development patterns in
established neighborhoods;
Maintaining residential densities in
outlying areas to accommodate
growth; and,
Guiding additional employment and
residential growth toward downtown
and urbanized sectors along key
transportation corridors.
New employment areas that
foster a better jobs/housing
balance and improve the
community’s median income
include the area around
Interstate 15 and Felicita Road
Interchange for Corporate and
Professional Office land uses
Ordinance No. 2024-11
Exhibit "B"
219
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Escondido General Plan Land Use and Community Form Page II-15 Additionally, the General Plan seeks to revitalize employment and activity opportunities in five areas currently designated commercial or industrial: 1) Downtown SPA #9, 2) Downtown Transit Station; 3) Westfield Shoppingtown; 4) Highway 78 at Broadway; 5) Promenade Retail Center and Vicinity; and 6) South Quince Street (also refer to Section J “General Plan Opportunity Areas” in this Element).
3. Mixed Use Transit Oriented Development
Mixed use development refers to the blending of multi-family resi- dential development with other compatible uses, such as commercial and/or office in a horizontal and/or vertical arrangement (Figure II- 4a).
The goal of mixed use overlay areas is to integrate employment, retail, entertainment and community amenities within close proximity to create vibrant urban areas and enhance Escondido’s housing opportunities while establishing desirable places for people to live, work, shop, and play.
Successfully integrating residential, employment, entertainment, shopping, and services in a mixed use overlay is effective in reducing reliance on the automobile as residents are able to conveniently access facilities and services. Mixed use buildings can be vertically mixed, Figure II-4a
A “before” and “after” example
illustrating how smart growth
mixed use transit oriented
development can transform the
area around Escondido’s multi-
modal transit station into a
dynamic employment center.
Ordinance No. 2024-11
Exhibit "B"
220
Item10.
Page II-16 Escondido General Plan Land Use and Community Form with commercial or office space on the first floors and housing space on upper floors. Horizontal mixed use is also desirable at some locations, where commercial uses may be adjacent to offices or residences within the same master planned development.
Escondido’s Downtown Specific Plan Area contains mixed use development standards that have been adopted for many years. This General Plan incorporates mixed use overlays in additional areas: 1) Escondido Boulevard at Felicita Avenue, 2) Centre City Parkway at Brotherton Avenue, and 3) East Valley Parkway (refer to Section J “General Plan Opportunity Areas” in this Element).
Mixed use overlay areas are transit oriented in nature by incorporating features such as bus stops and multi-modal connections that promote the use of alternative transportation (Figure II-4b). In addition, mixed use overlay areas are pedestrian friendly environments that incor- porate trails, pathways, bikeways, and safe crosswalks to connect neighboring uses.
Figure II-4b
A “before” and “after” example similar
to East Valley Parkway illustrating
how smart growth mixed use transit
oriented development involving
constructing residential units above
ground floor retail and/or office areas
can transform an uninviting street into
a pedestrian-friendly community.
Ordinance No. 2024-11
Exhibit "B"
221
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Escondido General Plan Land Use and Community Form Page II-17
4. Educational Promotion
Being economically competitive is synonymous with being edu - cationally competitive. Studies consistently link growth of a local economy with access to higher education. In today’s global economy, it is advantageous for local governments to support residents’ “con- tinuous learning” in order to enhance employability, strengthen job skills and generate opportunities for increasing per capita income.
While education broadens residents’ knowledge base and achieves personal economic stability, a highly skilled and educated community is also viewed by employers as a desirable environment for estab- lishing and expanding their businesses.
The General Plan strives to achieve these objectives by including policies that promote educational access for residents and identifying areas for attracting facilities that provide post-secondary education. The area between Palomar College’s satellite campus (East Valley Parkway at Midway Drive) and Palomar Hospital’s downtown facility is a target area for establishing an “educational enclave.” This area will focus evaluating opportunities to attract and cluster educa- tional institutions, technical colleges, vocational schools, and job training facilities and foster Escondido’s economic sustainability and p romote a more educationally competitive environment that provides a direct path to employment.
Palomar College’s satellite
East Valley Parkway campus
Ordinance No. 2024-11
Exhibit "B"
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Page II-18 Escondido General Plan Land Use and Community Form G. General Plan Land Use Designations and
Development Capacity
Figure II-5 identifies the existing and projected levels of development associated with Escondido’s planned distribution of land uses (Figure II- 6). The table identifies the anticipated full implementation of the land use policies established by this General Plan, as well as antici- pated growth by 2035; the planning horizon year. Land uses and intensities will gradually align with the intent of the Land Use and Community Form Element as properties develop and redevelop over time. Given Escondido’s largely built out character, and the varying ages and conditions of buildings, significant redevelopment activities may not occur until toward the end of the planning horizon year.
Figure II-5
General Plan (GP) Development Capacity
Single
Family
(Units
Multi-
Family
(Units)
Retail
(Square
Feet)
Office
(Square
Feet)
Industrial
/ Other
(Square
Feet)
Open
Space,
Parks /
Misc.
(Acres)
2010 City
31,107
6,450
37,557
35,350
7,800
43,150
32,875
6,950
39,825
2,268
16,477
0 16,477
31,132
0 31,132
24,133
0 24,133
7,656
13,001,000
0 13,001,000
32,558,000
300,000
32,858,000
17,886,000
150,000
18,036,000
5,035,000
4,091,000
0 4,091,000
24,064,000
0 24,064,000
9,628,000
0 9,628,000
5,537,000
12,389,000
0 12,389,000
20,182,000
0 20,182,000
15,467,000
0 15,467,000
3,078,000
9,000
3,500
12,500
10,500
4,500
15,000
9,500
4,000
13,500
1,000
Area in GP
2010 County
Area in GP
2010 City
and County
Combined
Build out of
City Area
in GP
Build out of
County Area
in GP
Build out City
and County
Combined
2035 City
Area in GP
2035 County
Area in GP
2035 City
and County
Combined
2010 – 2035
Net Change
Ordinance No. 2024-11
Exhibit "B"
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Escondido General Plan Land Use and Community Form Page II-19 Figure II-6
General Plan Land Use Designations
Land Use Designation Required Standards:
Density and Design
Minimum Lot Size
Maximum Building Height
(Also refer to policies)
General Description of
Uses
Recommended
Urban Form Characteristics
Large Lot Single Family Residential
Rural
This designation applies to areas that are not intended to receive substantial urban services floor; or steep (generally over 25% in slope) or contain sensitive natural resources. De pursuant to General Plan Residential Clustering Policies , distant from the developed valley
velopment clustering is permitted
Rural I Maximum densities allowed on
the following slope categories:
0-25% - 1 du/4 ac;
25-35% - 1 du/8 ac; and
35%+ - 1 du/20 ac.
Min lot size: 4 ac
Building Height: 1-2 stories
Zoning: Residential Agriculture (R-A)
A rural living environment in
areas of agricultural production,
rugged terrain, and/or environ-
mentally constrained lands that
are the most remote from urban
development. This designation
is typified by large lot single-
family homes.
Large residential lots with low
building coverage
Maintains the natural and open
space character of the parcel
Agricultural properties
Informal streets with rustic
character
Rural II Maximum densities allowed on
the following slope categories:
0-25% - 1 du/2 ac;
25-35% - 1 du/4 ac; and
35%+ - 1 du/20 ac;
Min lot size: 2 ac
Building Height: 1-2 stories
Zoning: Residential Agriculture (R-A)
A rural living environment in
areas of agricultural production
or rugged terrain that is remote
from urban development. This
designation is typified by large
lot single-family homes.
Estate
This designation accommodates detached single-family homes on large lots. This designati edge of urban development or in areas that are already characterized by an estate de clustering is permitted pursuant to General Plan Residential Clustering Policies on applies to areas that are on the
velopment pattern. Development
Estate I Maximum densities allowed on
the following slope categories:
0-15% - 1 du/1 ac;
15-25% - 1 du/2 ac;
25-35% - 1 du/4 ac; and
35%+ - 1 du/20 ac.
Min lot size: 40,000 sf
Building Height: 1-2 stories
Zoning: Residential Estate (R-E)
Large-lot, spaced single family
development in areas bordering
land designated as Rural.
Large residential lots with low
building coverage
Units set back from the street with
extensive on-site landscaping
Could include agricultural
properties
Informal streets with rustic
character
Estate II Maximum densities allowed on
the following slope categories:
0-25% - 2 du/1 ac;
25-35% - 1 du/1 ac; and
35%+ - 1 du/20 ac.
Min lot size: 20,000 sf
Building Height: 1-2 stories
Zoning: Residential Estate (R-E)
Spaced single family develop-
ment on relatively large lots
and properties that transition
between more intensive subur-
ban development and Estate I
areas.
Large residential lots with low
building coverage
Units set back from the street with
extensive on-site landscaping
Semi-formal streets
Ordinance No. 2024-11
Exhibit "B"
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Page II-20 Escondido General Plan Land Use and Community Form Figure II-6
General Plan Land Use Designations
Land Use Designation Required Standards:
Density and Design
Minimum Lot Size
Maximum Building Height
(Also refer to policies)
General Description of
Uses
Recommended
Urban Form Characteristics
Single Family Residential
Suburban
This designation applies to areas that generally surround the urbanized core of the community and accommodates single family detached homes on relatively large lots. Development clustering is permitted pursuant to General Plan Residential Clustering Policies
Suburban
Maxi mum densities allowed on
the following slope categories:
0-25% - 3.3 du/ac;
25-35% - 1.5 du/ac; and
35%+ - 1 du/20 ac.
Min lot size: 10,000 sf
Building Height: 1-2 stories
Street designs support pedes-
trian and bicycle use along with
vehicular circulation
Zoning: R-1-10 or higher
Singl e family homes with a
traditional residential
neighborhood character.
Int erconnected curvilinear street
system facilitating traffic flow
Community services and neighbor-
hood parks within walking distance
of local residents, where feasible
Established street tree canopy
providing shade and enhanced
neighborhood character
Urban I
This designation applies to residential areas of the main Escondido “valley floor” and accommodates single family detached homes on smaller urban lots. Development clustering is permitted pursuant to General Plan Residential Clustering Policies Urban I Maximum densities allowed:
5.5 du/ac;
Min lot size: 6,000 sf
Building Height: 1-3 stories
Street designs support pedes-
trian and bicycle use along with
vehicular circulation
Zoning: R-1-9 or lower
Single family homes in a more
ur
ban, medium-density living
environment, characteristic of
much of Escondido. Mobile
homes, patio homes, and zero-
lot-line developments are also
permitted.
Hi
ghly interconnected linear street
system facilitating traffic flow
Community services and neighbor-
hood parks within walking distance
of local residents, where feasible
Established street tree canopy
providing shade and enhanced
neighborhood character
Range of housing types and design
consistent with existing forms and
patterns where appropriate
Streets in older neighborhoods
maintain limited curb cuts with rear,
alley, and side garage access
Ordinance No. 2024-11
Exhibit "B"
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Figure II-6
General Plan Land Use Designations
Land Use Designation Required Standards:
Density and Design
Minimum Lot Size
Maximum Building Height
(Also refer to policies)
General Description of
Uses
Recommended
Urban Form Characteristics
Medium Density Multi-Family Residential
Urban II and Urban III
These designations accommodate a wide range of housing types and generally apply to transitional areas that exist between single family neighborhoods and higher density residential and commercial areas.
Urban II
Urban III
Maximum densities allowed:
12 du/
ac
Building Height: 1-3 stories
Street designs support pedestrian
and bicycle use along with
vehicular circulation
Zoning R-2-12
Maximum densities allowed:
18 du/ac
Minimum densities allowed:
12.6 du/ac
Building Height: 2-4 stories
Street designs support pedestrian
and bicycle use along with
vehicular circulation
Zoning: R-3-18
Single family, multi-family units
and mobile homes. Development
at the lower end of the density
range would be appropriate
adjacent to existing single family
residential areas and charac-
terized primarily by detached
housing units, patio homes, and
zero-lot-line projects. Higher
densities are more appropriate
adjacent to parks and open
space, along transit routes and
major and secondary thorough-
fares, and near recreational
activity centers, libraries, shop-
ping centers, and entertainment
areas. Higher densities would
also be appropriate adjacent to
existing and planned higher den-
sity development (e.g., mixed-use
districts) to include semidetached
or attached units, with duplexes,
triplexes, and fourplexes.
Multi-family residential units,
town homes and apartments,
flats and condominiums. This
designation is appropriate in
proximity to major community
facilities and employment
opportunities, and along major
thoroughfares.
Highly interconnected linear
street system facilitating traffic
flow
Community services and
neighborhood parks within
walking distance of local
residents, where feasible
Range of housing types and
design consistent with existing
forms and patterns, where
appropriate
Established street tree canopy
providing shade and enhanced
neighborhood character
Streets in older neighborhoods
maintain limited curb cuts with
rear, alley, and side garage
access
Larger parcels may incorporate
multiple buildings with a
coordinated vehicular and
pedestrian circulation plan
Multi-family development
includes common open space
and recreational amenities
Escondido General Plan Land Use and Community Form Page II-21 Ordinance No. 2024-11
Exhibit "B"
Item10.
Figure II-6
General Plan Land Use Designations
Land Use Designation Required Standards:
Density and Design
Minimum Lot Size
Maximum Building Height
(Also refer to policies)
General Description of
Uses
Recommended
Urban Form Characteristics
High Density Multi-Family Residential
Urban IV and Urban V
These designations accommodate higher densities for urban multifamily housing characterized by taller structures in more densely developed areas that provide convenient access to a wider range of facilities and services.
Urban IV
Urban V
Maximum densities allowed:
24 du/
ac
Minimum densities allowed:
16.8 du/ac
Building Height: 2-4 stories
Street designs support pedestrian
and bicycle use along with
vehicular circulation
Zoning: R-4-24
Maximum densities allowed:
30 du/ac
Minimum densities allowed:
21 du/ac
Building Height: 2-4 stories
Street designs support pedestrian
and bicycle use along with
vehicular circulation
Zoning R-5-30
Multi
-family residential units,
town homes and apartments,
flats and condominiums. This
designation is appropriate
along major thorough-fares in
close proximity to transit
stops, shopping centers,
entertainment, community
facilities and employment
opportunities to provide
residents the opportunity to
live near work and amenities.
Higher density multi-family
residential units, town homes
and apartments, flats and
condominiums. This design-
nation is appropriate near the
downtown core, transit
stations, along major thorough-
fares in close proximity to shop-
ping centers, entertainment,
community facilities and
employment opportunities to
provide residents the oppor-
tunity to live near work and
amenities.
Highly interconnected linear street
system facilitating traffic flow
Community services and neighbor-
hood parks within walking distance
of local residents, where feasible
Range of housing types and design
consistent with existing forms and
patterns, where appropriate
Established street tree canopy
providing shade and enhanced
neighborhood character
Buildings located and designed to
orient to primary street frontages,
with either individual entries for each
unit, or a common lobby entrance to
access individual units
Larger parcels may incorporate
multiple buildings with a coordinated
vehicular and pedestrian circulation
plan
Multi-family development includes
common open space and
recreational amenities
Off-street parking is integrated into
the building or in separate parking
structures
Direct access to transit may be
incorpor
ated into the development
Streets in older neighborhoods
maintain limited curb cuts with rear,
alley, and side garage access
Page II-22
Ordinance No. 2024-11
Exhibit "B"