Escondido City Council
August 28, 2024

420
Item12.

Public Improvement Agreement (Contractor) - 2 - CAO: 8/26/2021

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

3. C ompensation. In exchange for CONTR ACTOR’s completion of the Work, the CITY shall pay , and CONTRACTOR sha ll accept in full, an amount not to exceed the sum of $11,781,411.50 (“Contract Price”) . CONTRACTOR shall be compensated only for performance of the Work described in this Agreement. No compensation shall be provided for any other work or services without the CITY’s prior written consent.

4. Ter m and Time of Performance. CONTRACTOR shall commence work within one week from the CITY's notice to proceed. CONTRACTOR shall diligently perform and complete the Base Bid Schedule A, Additive Alternate Bid Schedule B, and Additive Alternate Bid Schedule C work with professional quality and technical accuracy within 223 working days from the date specified in the notice to proceed (“Completion Date”). Extension of terms or time of performance shall be subject to the CITY’s sole discretion.

5. Ti me Is of the Essence. If the Work is not completed by the Completion Date, it is understood that the CITY will suffer damage. It being impractical and infeasi ble to determine the amount of actual damage, in accordance with Government Code section 53069.85, the Parties agree that CONTRACTOR shall pay to the CITY as fixed and liquidated damages, and not as a penalty, the sum of $1,000 per day for each calendar day of delay until the Work is completed and accepted (“Liquidated Damages Amount”) . The Liquidated Damages Amount shall be deducted from any payments due to, or that become due to, CONTRACTOR. CONTRACTOR and CONTRACTOR'S surety shall be liable for the Liquidated Damages Amount.

6. I nsurance Requirements .

a. CONTRACTOR 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 Work, and the results of such Work, by CONTRACTOR, its agents, representatives, employees, or subcontractors. Insurance coverage shall be at least as broad as the following:

(1) Commercial General Liability . Insurance Services Office (“ISO”) Form CG 0001 11188 covering Commercial General Liability on an “occurrence” basis, including products and completed operations, property damage, bodily injury (including emotional distress), sickness, disease, or death of any person other than the CONTRACTOR's employees , and personal and advertising injury, and damages because of injury or destruction of tangible property, including loss of use resulting there from, with limits no less than $3,000,000 combined single limit coverage per occurrence for bodily injury and property damage; or, if a general aggregate limit is applicable, either: (i) the general aggregate limit shall specifically apply to the project identified in the bid specifications or to the location of such project which is t he subject of these bid specifications with coverage to be no less than $3,000,000, or (ii) the general aggregate shall be at least $3,000,000 combined single limit coverage per occurrence for bodily injury and property damage.

(2) Automobile Liability . ISO F orm CA 00 01 covering any auto (Code 1), or if CONTRACTOR has no owned autos, hired (Code 8) and non- owned autos (Code 9), including damages because of bodily injury, death of a person, or property damage Resolution No. 2024-107
Exhibit "A"

421
Item12.

Public Improvement Agreement (Contractor) - 3 - CAO: 8/26/2021 arising out of the ownership, maintenance, or use o f a motor vehicle, all mobile equipment, and vehicles moving under CONTRACTOR’s control and engaged in the Work, with limits no less than $3,000,000 combined single limit per accident for bodily injury and property damage.

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

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

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

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

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

(3) Additional Insured Status . Both the Commercial General Liability and the Auto mobile 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 additional insured endorsement shall be at least as broad as ISO Form CA 20 01.

(4) Primary Coverage. CONTRACTOR’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the CITY, its 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 CONTRACTOR’s insurance and shall not contribute with it.

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

(6) Subcontractors. If applicable, CONTRACTOR shall require and verify that all subcontractors maintain insurance meeting all the requirements stated within this Agreement, and CONTRACTOR shall ensure that the CITY (including its officials, officers, agents, employees, and volunteers) is an additional insured on any insurance required from a subcontractor.

(7) Waiver of Subrogation. CONTRACTOR hereby grants to the CITY a waiver o f any right to subrogation that any insurer of CONTRACTOR may acquire against the CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be 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 Resolution No. 2024-107
Exhibit "A"

422
Item12.

Public Improvement Agreement (Contractor) - 4 - CAO: 8/26/2021 required by this Agreement shall be endorsed with a waiver of subrogation in favor of the CITY for all work performed by the CONTRACTOR, its agents, representatives, employees and subcontractors.

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

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

c. Verification of Coverage. At the time CONTRACTOR executes this Agreement, CONTRACTOR shall provide the CITY with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting the insurance coverage required by this Agreement), which shall meet all requirements under this Agreement. The CITY reserves the right to 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, includi ng limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

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

f. Compliance. Failure to comply with any of the insurance requirements in this Agreement , including but not limited to a lapse in any required insurance coverage during the term of this Agreement, shall be a material breach of this Agreement. Compliance by CONTRACTOR with the requirement to carry insurance and furnish certificates, policies, Additional Insured Endorsement and Declarations Page evidencing the same shall not relieve the CONTRACTOR from liability assumed under any provision of this Agreement, including, without limitation, the obligation to defend and indemnify the CTY and the City Engineer. In the event that CONTRACTOR fails to comply with any insurance requirement set forth in this Agreement, in addition to any other remedies the CITY may have, the CITY may, at its sole option, (i) immediately terminate this Agreement; or (ii) order CONTRACTOR to stop W ork under this Agreement and/or withhold any payment that becomes due to CONTRACTOR until CONTRACTOR demonstrates compliance with the insurance requirements in this Agreement.

7. I
ndemnification, Duty to Defend, and Hold Harmless.

a. CONTRACTOR (including CONTRACTOR’s agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless the CITY, its officials, officers, agents, employees, and volunteers from and against any and all claims, demands, actions, causes of action, proceedings (including but not limited to legal and administrative proceedings of any k ind), Resolution No. 2024-107
Exhibit "A"

423
Item12.

Public Improvement Agreement (Contractor) - 5 - CAO: 8/26/2021 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 c osts and expenses (collectively, “Claims”), of every nature caused by, arising out of, or in connection with CONTRACTOR’s (including CONTRACTOR’s agents, employees, and subcontractors, if any) Work pursuant to this Agreement or its failure to comply with a ny of its obligations contained herein, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY.

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

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

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

8. B
onds .

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

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

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

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

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

d. If the surety on any bond furnished by the CONTRACTO R is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Work is located, the CONTRACTOR shall, within seven days thereafter, substitute another bond and surety, which must be acceptable to the CITY. No portion of the Work shall be performed without bonds, in a form and issued by a surety acceptable to the City. If one or more of such bonds shall, at any time, not be in full force and effect, CONTRACTOR shall immediately cease performance of th e Work until CONTRACTOR is in full compliance with the bonding requirements of this Agreement and California law. All delays and costs incurred or resulting from such occurrence shall be to the exclusive account of CONTRACTOR. Failure of the CONTRACTOR t o promptly cure any failure to have the necessary bonds in full force and effect shall be grounds for immediate termination of this Agreement.

Resolution No. 2024-107
Exhibit "A"

424
Item12.

Public Improvement Agreement (Contractor) - 6 - CAO: 8/26/2021 e. All bonds shall be obtained from surety companies that are duly licensed or authorized in the State of California. Such surety companies shall also meet any additional requirements and qualifications as may be provided in the Supplementary General Conditions.

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

10. Contractor Default. I n the event CONTRACTOR, for a period of 10 calendar days after receipt of written demand from the CITY to do so (“Cure Period”), fails to furnish tools, equipment, or labor in the necessary quantity or quality required by this Agreement, or fails to prosecute the Work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within the Cure Period, fails to continue to do so, then the CITY in its sole discretion may exclude the CONTRACTOR from the Property , or any portion thereof, and take exclusive possession of the Property or any portion thereof, together with all material and equipment thereon, and may complete the Work or any portion of the W ork, either by (i) furnishing the necessary tools, equipment, labor , or material s; or (ii) letting the unfinished portion of the work, or any portion thereof, to another contractor ; or (iii) demanding the surety hire another contractor; or (iv) any combination of such methods. The CITY’s procuring of the completion of the Work, or the portion of the Work taken over by the CITY, shall be a charge against the CONTRACTOR and may be deducted from any money due or to become due to CONTRACTOR from the CITY, or the CONTRACTOR shall pay the CITY the amount of s uch charge, or the portion thereof unsat isfied.

The sureties provided for under this Agreement shall become liable for payment if CONTRACTOR fails to pay in full any such cost incurred by the CITY. The permissible charges for any such procurement of the completion of the Work include actual cost s and fees incurred to third party individuals and entities (including but not limited to consultants, attorneys, inspectors, and designers) and actual costs incurred by the CITY for the increased dedication of time of the CITY’s employees to the Project.

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

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

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

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

Resolution No. 2024-107
Exhibit "A"

425
Item12.

Public Improvement Agreement (Contractor) - 7 - CAO: 8/26/2021

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

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

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

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

19. Counterparts.

This Agreement may be executed on separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same 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.

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

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

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

23. Prevailing Wages and Department of Industrial Relations Compliance. Pursuant to California Labor Code section 1770 et seq., CONTRACTOR agrees that a prevailing rate and scale of wages, in accordance with applicable laws, shall be paid in performing this Agreement.

CONTRACTOR shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes, codes, ordinances, regulations, rules, and other legal requirements pertaining to the payment of prevailing wages, including but not limited to the keeping of certified payroll records, overtime pay, employment of apprentices, and workers' compensation coverage, as further set forth in the General Conditions. CONTRACTOR shall file the required workers' compensation certificate before commencing work under this Agreement. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.

CONTRACTOR shall post all job site notices required by regulation. CONTRACTOR, as well as any subcontractors, shall be registered pursuant to California Labor Code section 1725.5 to be qualified to bid on, be listed in a bid proposal (subject to the requirements of Public Contract Code section 4104), or engage in the performance of any public works contract subject to the Resolution No. 2024-107
Exhibit "A"

426
Item12.

Public Improvement Agreement (Contractor) - 8 - CAO: 8/26/2021 requirements of Division 2, Part 7, Chapter 1 of the California Labor Code. Neither the CITY, nor any elected or appointed boards, officers, officials, e mployees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONTRACTOR to comply with this section.

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

25. Effective Date.

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

26. Federal Contract Provisions . CONTRACTOR shall comply with the Federal Contract Provisions which are attached to this Agreement as Exhibit 1 and incorporated herein by this reference.

CONTRACTOR understands and acknowledgers that, at the time it executes this Agreement, CONTRACTOR shall als o execute and return to the CITY the Certification Regarding Lobbying which is included in Exhibit 1 as Attachment A.
(SIGNATURE PAGE FOLLOWS)
Resolution No. 2024-107
Exhibit "A"

427
Item12.

Public Improvement Agreement (Contractor) - 9 - CAO: 8/26/2021 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

Tri-Group Construction and Development, Inc.

Date: __________________ ___________________________________ Signature

___________________________________
Name & Title (please print)

___________________________________
Contractor's License No.

___________________________________
Tax ID/Social Security No.

APPROVED AS TO FORM:

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

BY: __________________________

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

Resolution No. 2024-107
Exhibit "A"

428
Item12.

EXHIBIT 1
2 C.F.R Part 200 Appendix II Federal Contract Provisions

Exhibit 1 -1-

The Coronavirus State and Local Fiscal Recovery Funds (“SLFR F”) administrated by the U.S Department of Treasury (“Federal Awarding Agency” ) under the American Rescue Plan Act of 2021 (“ARPA”) will be used to fund all or a portion of this Agreement, and as such CONTRACTOR shall also comply with any applicable sections of 2 CFR Appendix II Part 200 relating to required contract provisions for federal awards, any applicable sections will be incorporated by reference into the resulting agreement including without limitations, the following:

1. DEBARMENT AND SUSPENSION
a. This Agreement is a covered transaction for purposes of 2 C.F.R. Part 180 and 2 C.F .R.

Part 3000. As such, CONTRACTOR is required to verify that none of CONTRACTOR’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R . § 180.935).
b. The CONTRACTOR shall comply with 2 C.F.R. Part 180, Subpart C and 2 C.F.R. Part 3000, Subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction CONTRACTOR enters into.
c. This certification is a material representation of fact relied upon by the CITY. If it is later determined that CONTRACTOR did not comply with 2 C.F.R. Part 180, Subpart C and 2 C.F.R. Part 3000, Subpart C, in addition to remedies available to the CITY, the F ederal Government may pursue available remedies, including but not limited to suspension and/or debarment.
d. The CONTRACTOR agrees to comply with the requirements of 2 C.F.R. Part 180, Subpart C and 2 C.F.R. Part 3000, Subpart C throughout the term of this Agreement. The CONTRACTOR further agrees to include a provision requiring such compliance in its lower tier covered transactions.

2. COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS The CONTRACTOR acknowledges that Coronavirus State and Local Fiscal Recovery Funds (“SLFRF”) established by the American Rescue Plan Act of 2021 will be used to fund all or a portion of this Agreement. The CONTRACTOR shall comply with all applicable federal law, regulations, executive orders, SLFRF policies, procedures, and directives.

3. NO OBLIGATION BY FEDERAL GOVERNMENT
The United States Federal Government is not a party to this Agreement and is not subject to any obligations or liabilities to the CITY, CONTRACTOR, or any other party pertaining to any matter resulting from this Agreement.

4. PROGRAM FRAUD AND FALSE OR FRADULENT STATEMENT OR RELATED ACTS CONTRACTOR acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to CONTRACTOR’s actions pertaining to this Agreement

Resolution No. 2024-107
Exhibit "A"

429
Item12.

EXHIBIT 1
2 C.F.R Part 200 Appendix II Federal Contract Provisions

Exhibit 1 -2-

5. CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT Cle an Air Act

1. The CONTRACTOR agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C . § 7401 et seq.

2. The CONTRACTOR agrees to report each violation to the City of Escondido and understands and agrees that the City of Escondido will, in turn, report each violation as required to assure notification to the Federal Awarding Agency, and the appropriate Environmental Protection Agency Regional Office.

3. The CONTRACTOR agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provide by ARPA.

Federal Water Pollution Control Act

1. The CONTRACTOR agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C.1251 et seq.

2. The CONTRACTOR agrees to report each violation to the City of Escondido and understands and agrees that the City of Escondido will, in turn, report each violation as required to assure notification to the Federal Awarding Agency, and the appropriate Environmental Protection Agency Regional Office.

3. The CONTRACTOR agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provide by ARPA.

6. BYRD ANTI-LOBBYING AMENDMENT, 31 U.S.C. § 1352 (AS AMENDED) a. Prior to entering into this Agreement, CONTRACTOR shall file the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352 (as amended)). Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any f ederal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.

b. R
equired Certification. At the time CONTRACTOR executes this Agreement, CONTRACTOR shall provide the CITY with a completed Appendix A, 44 C.F.R. Part 18 – Certification Regarding Lobbying. A blank Appendix A, 44 C.F.R. Part 18 – Certification Regarding Lobbying is attached to this Exhibit 1 as Attachment A and incorporated herein by this reference.

Resolution No. 2024-107
Exhibit "A"

430
Item12.

EXHIBIT 1
2 C.F.R Part 200 Appendix II Federal Contract Provisions

Exhibit 1 -3-

7. PROCUREMENT OF RECOVERED MATERIALS
In the performance of this Agreement, CONTRACTOR shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired (1) competitively within a timeframe providing for compliance with the Agreement’s performance schedule, (2) meeting Agreement performance requirements, or (3) at a reasonable price. Information about this requirement, along with the list of EPA -designated items, is available at EPA’s Comprehensive Procurement Guidelines website, located at https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program.

CONTRACTOR shall also comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.

8. A

CCESS TO RECORDS

(1) The CONTRACTOR agrees to provide the CITY, the Federal Awarding Agency Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of CONTRACTOR that are directly pertinent to this Agreement for the purposes of making audits, exami nations, excerpts, and transcriptions.

(2) The CONTRACTOR agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

(3) The CONTRACTOR agrees to provide the Federal Awarding Agency Administrator or their authorized representatives access to construction or other work sites pertaining to the work being completed under this Agreement.

(4) In compliance with the Disaster Recovery Act of 2018, the CITY and CONTRACTOR acknowledge and agree that no language in this Agreement is intended to prohibit audits or internal reviews by the Federal Awarding Agency Administrator or the Comptroller General of the United States.

9. FEDERAL AWARDING AGENCY SEALS, LOGO, AND FLAGS
CONTRACTOR shall not use the Federal Awarding Agency seal(s), logos, crests, or reproductions of flags or likenesses of Federal Awarding Agency officials without specific Federal Awarding Agency pre-approval.

10. EQUAL EMPLOYMENT OPPORTUNITY
During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.

The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:

Resolution No. 2024-107
Exhibit "A"

431
Item12.

EXHIBIT 1
2 C.F.R Part 200 Appendix II Federal Contract Provisions

Exhibit 1 -4- Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor , or as otherwise provided by law.
(8) The Contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each Subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Resolution No. 2024-107
Exhibit "A"

432
Item12.

EXHIBIT 1
2 C.F.R Part 200 Appendix II Federal Contract Provisions

Exhibit 1 -5- Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of Contractors and Subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a Contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon Contractors and Subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

11. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
A. Overtime requirements. No Contractor or Subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one- half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

B. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in this section the Contractor and any Subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Contractor and Subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in this section, in the sum of $27 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in this section.

Resolution No. 2024-107
Exhibit "A"

433
Item12.

EXHIBIT 1
2 C.F.R Part 200 Appendix II Federal Contract Provisions

Exhibit 1 -6- C. Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or Subcontractor under any such contract or any other Federal contract with the same prime Contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or Subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in this section.

D. Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the Subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any Subcontractor or lower tier Subcontractor with the clauses set forth in this section.

E. Further Compliance with the Contract Work Hours and Safety Standards Act. a. The Contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserved them for a period of there years from the completion of the contract all labors and mechanics, including guards and watchmen , working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. b. Records to be maintained under this provision shall be made available by the Contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the Federal Awarding Agency, and the Department of Labor, and the contract or or subcontractor will permit such representatives to interview employees during working hours on the job.

12. AFFIRMATIVE SOCIOECONOMIC STEPS
If subcontracts are to be let, the prime Consultant is required to take all necessary steps identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority businesses, women’s business enterprises, and labor surplus area firms are used when possible.

Resolution No. 2024-107
Exhibit "A"

434
Item12.

ATTACHMENT A
Appendix A, 44 C.F.R. Part 18 – Certification Regarding Lobbying ATTACHMENT A – Certification Regarding Lobbying

Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, “Disclosure For m to Report Lobbying,” in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

The CONTRACTOR, Tri-Group Construction and Development, Inc., a California Corporation, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.

_______________________________________
Signature of Contractor’s Authorized Official

_______________________________________
Name and Title of Contractor’s Authorized Official

____________________
Date

Resolution No. 2024-107
Exhibit "A"

435
Item12.

Labor and Materials Bond -1- CAO: 01/22/21
Bond No.: _______________
Premium: _______________

LABOR AND MATERIALS BOND

KNOW ALL BY THESE PRESENTS,

WHEREAS, The City Council of the City of Escondido, State of California, and Tri-Group Construction and Development, Inc. , a California corporation (“Principal”), have entered into a 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 Escondido Creek Trail Multi-Use Path Project.

WHEREAS, under the terms of the A greement, 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 __________, a ______________ organized and existing under the laws of the State of California 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 A greement and referred to in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code in the sum of eleven million, seven hundred and eighty -one thousand, four hundred and eleven dollars and fifty cents ( $11,781,411.50), 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 th e 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 Resolution No. 2024-107
Exhibit "A"

436
Item12.

Labor and Materials Bond -2- CAO: 01/22/21
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 ______ day of ______________, 2024.

_________________________________
Name of Principal

_________________________________
Address of Principal

By: __________________________________________
Signature of Person Signing on Behalf of Principal

__________________________________________
Name of Person Signing on Behalf of Principal

__________________________________________
Title of Person Signing on Behalf of Principal

_________________________________
Name of Surety

_________________________________
Address of Surety

By: __________________________________________
Signature of Person Signing on Behalf of Surety

__________________________________________
Name of Person Signing on Behalf of Surety

__________________________________________
Title of Person Signing on Behalf of Surety

(ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPALS AND SURETY MUST BE ATTACHED.)

APPROVED AS TO FORM:

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

B
Y: __________________________

Resolution No. 2024-107
Exhibit "A"

437
Item12.

Faithful Performance Bond -1- CAO: 1/22/2021
Bond No.: _______________
Premium: _______________

FAITHFUL PERFORMANCE BOND

KNOW ALL BY THESE PRESENTS,

WHEREAS, The City Council of the City of Escondido, State of California, and Tri-Group Construction and Development, Inc., a California corporation (“Principal”), have entered into a 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 Escondido Creek Trail Multi-Use Path 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 __________, a ______________ organized and existing under the laws of the State of California 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 eleven million, seven hundred and eighty -one thousand, four hundred and eleven dollars and fifty cents ($11,781,411.50), 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, firm ly 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.

Resolution No. 2024-107
Exhibit "A"

438
Item12.

Faithful Performance Bond -2- CAO: 1/22/2021
IN WITNESS WHEREOF, this instrument has been duly executed by the P rincipal and Surety above named, as of this ________ day of __________________, 2024.

_________________________________
Name of Principal

_________________________________
Address of Principal

By: __________________________________________
Signature of Person Signing on Behalf of Principal

__________________________________________
Name of Person Signing on Behalf of Principal

__________________________________________
Title of Person Signing on Behalf of Principal

_________________________________
Name of Surety

_________________________________
Address of Surety

By: __________________________________________
Signature of Person Signing on Behalf of Surety

__________________________________________
Name of Person Signing on Behalf of Surety

__________________________________________
Title of Person Signing on Behalf of Surety

(ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPALS AND SURETY MUST BE ATTACHED.)

APPROVED AS TO FORM:

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

BY: _____________________________

Resolution No. 2024-107
Exhibit "A"

439
Item12.

RESOLUTION NO. 2024-108

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 T.Y. LIN INTERNATIONAL GROUP,

LTD FOR CONSTRUCTION MANAGEMENT SERVICES

FOR THE ESCONDIDO CREEK TRAIL MULTI -USE PATH

PROJECT

WHEREAS, the City Council has allocated funding in the adopted Capital Improvement Program budget for the Escondido Creek Trail Multi-Use Path Project (“Project”); and WHEREAS, a Notice of Request for Proposals dated April 4, 2024 was issued for Construction Management Services to verify compliance with Project plans, specifications, and permitting requirements; and
WHEREAS, T.Y. Lin International Group, LTD (“T.Y. Lin”) was determined to be qualified to provide these services; and
WHEREAS, the 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 T.Y. Lin in the amount of $1,074,473.

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 TY Lin, which is attached and incorporated to this Resolution as Exhibit “A”, and subject to final approval as to form by the City Attorney.
440
Item12.

CITY OF ESCONDIDO

CONSULTING AGREEMENT
Thi
s Consulting Agreement (“Agreement”) is made and entered into as of the last signature date set forth below (“Effective Date”),
B
etween: CITY OF ESCONDIDO
a California municipal corporation
201 N. Broadway
Escondido, CA 92025
Attn: Jonathan Schauble
760-839-4072
("CITY")
And: T.Y. Lin International Group, Ltd.
a Delaware corporation
404 Camino del Rio South Suite 700
San Diego, CA 92108
Attn: Wade Durant
619-279-3489
[email protected]
("CONSULTANT").
(The CITY and CONSULTANT each may be referred to herein as a “Party” and collectively as the “Parties.”)
W
HEREAS, the CITY has determined that it is in the CITY’s best interest to retain the professional services of a consultant to provide environmental services in adherence to the Mitigated Negative Declaration (MND) and Mitigation Monitoring & Reporting Program (MMRP), construction management, and inspection services for the Escondido Creek Trail Multi-Use Path Project; 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 performance of the Services described herein.

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

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

Resolution No. 2024-108
Exhibit "A"

441
Item12.

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 $1,074,473.

CONSULTANT shall be compensated only for performance of the Services described i n this Agreement. CONSULTANT shall submit its standard monthly invoice describing the Services performed and expenses incurred during the preceding month. The CITY shall make payment of all undisputed portions of such invoice and provide written justification for the withholding of any disputed portions to CONSULTANT within 30 calendar days after receipt of CONSULTANT 's monthly invoice. If any undisputed payment is more than thirty (30) days late, CONSULTANT shall (i) provide notice of late payment to C ITY, and (ii) if the relevant payment is not made within thirty (30) days of receipt of such late notice, CONSULTANT shall have the option to suspend its provision of Services. No compensation shall be provided for any other work or services without the CITY’s prior written consent. If this Agreement is amended at any time, additional compensation of CONSULTANT contained in any subsequent amendments shall not exceed a cumulative total of 25% of the maximum payment provided for in this Section 2, unless approved by resolution of the City Council.

3. Performance. CONSULTANT shall perform its obligations and Services in a manner consistent with the standard of care and skill ordinarily exercised by members of the profession practicing under similar conditions in the geographic vicinity and at the time the Services are performed (the “Standard of Care”) and in accordance with the terms of this Agreement. CONSULTANT shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all reports and other information furnished by CONSULTANT pursuant to this Agreement, except that CONSULTANT shall not be responsible for the accuracy of information supplied by the CITY.

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

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

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

6. City Property. All original documents, drawings, electronic media, and other materials prepared by CONSULTANT pursuant to this Agreement 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. The C ITY shall not, without CONSULTANT ’s express written consent, use the CONSULTANT Work for any purpose other than the Project, or modify the CONSULTANT work in any material respect, or transfer to a third party any rights in the CONSULTANT work. Any unauthorized use, modification, or transfer of the CONSULTANT Work will be at the CITY ’s sole risk. CONSULTANT shall have the right to retain copies of all Work, re -use the methodologies, techniques and know how utilized hereunder to perform services for other parties.

7. Insurance Requirements.
a. CONSULTANT shall procure and maintain, at its own cost, during the entire term of this Resolution No. 2024-108
Exhibit "A"

442
Item12.

Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Services, and the results of such work, by CONSULTANT, its agents, representatives, employees, or subcontrac tors. 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. (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 current A.M. Best’s rating of no less than A-: FSC VII, or as approved by the CITY.
(2) Additional Insured Status . Both the Commercial General Liability and the Automobile Liability policies must name the CITY (including its officials, officers, agents, employees, and volunteers) specifically as an additional insured under the policy on a separate endorsement page. The Commercial General Liability additional insured endorsement shall be at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38, and CG 20 37 if a later edition is used. The Automobile Liability endorsement shall be at least as broad as ISO Form CA 20 01.
(3) Primary Coverage. CONSULTANT’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the CITY, its officials, officers, agents, employees, and volunteers. Any insurance or self-insurance maintained by the CITY, its officials, officers, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
(4) Notice of Cancellation. Each insurance policy shall provide that coverage shall not be canceled, except with prior written notice to the CITY. (5) Subcontractors. If applicable, CONSULTANT shall require and verify that all subcontractors 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 (excepting Professional Liability Insurance) that any insurer of CONSULTANT may acquire against the CITY by virtue of the payment of any loss under such insurance.

Resolution No. 2024-108
Exhibit "A"

443
Item12.

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, 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 o f ot
her 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 th e
CI
TY.
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 (which shall meet all requirements under this Agreement. 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 this Agreement, including but not limited to any provisions in this Agreement concerning indemnification. f. Failure to comply with any of the insurance requirements in this Agreement, including, but not limited to, a lapse in any required insurance coverage during the term of this Agreement, shall be a material breach of this Agreement. In the event that CONSULTANT fails to comply with any such insurance requirements in this Agreement, in addition to any other remedies the CITY may have, the CITY may, at its sole option, (i) immediately terminate this Agreement; or (ii) order CONSULTANT to stop work under this Agreement and/or withhold any payment that becomes due to CONSULTANT until CONSULTANT demonstrates compliance with the insurance 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, 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, the payment of all consequential damages and reasonable attorney’s fees and other related litigation costs and expenses (collectively, “Claims”), of every nature caused by, arisi ng
out
of, or in connection with CONSULTANT’s performance of the Services or its failure to comply 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.

Resolution No. 2024-108
Exhibit "A"

444
Item12.
b. CONSULTANT (including CONSULTANT’s agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless the CITY, its officials, officers, employees, and volunteers from and against any and all Claims caused by, arising under, or resulting from any violation, or claim of violation, of the San Diego Municipal Storm Water Permit (Order No. R9- 2013-0001, as amended) of the California Regional Water Quality Control Board, Region 9, San Diego, that the CITY might suffer, incur, or become subject to by reason of, or occurring as a result of, or allegedly caused by, any work performed pursuant to this Agreement. c. All terms and provisions within this Section 8 shall survive the termination of this Agreement.

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

10. Attorney's Fees and Costs. In any action to enforce the terms and conditions of this 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.

Resolution No. 2024-108
Exhibit "A"

445
Item12.

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.

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

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

21. Compliance with Laws, Permits, and Licenses. CONSULTANT shall keep itself informed of an d 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 sha ll
obt
ain any and all permits, licenses, and other authorizations necessary to perform the Services.

Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of 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 applicabl e l
aws, shall be paid in performing this Agreement. CONSULTANT shall keep itself informed of and c
omply with all applicable federal, state, and local laws, statutes, codes, ordinances, r egulations, rules, and other legal requirements pertaining to the payment of prevailing wages. The prevailing r
ate and scale to be paid shall be the same as the applicable “General Prevailing Wage Determination” approved by the Department of Industrial Relations as of the Effective Date of this Agreement, which are available online at http://www.dir.ca.gov/oprl/dprewagedetermination.htm and incorporated into this Agreement by this reference. Neither the CITY, nor any elected or appointed boards, officers, officials, employees, or agents of the CITY, shall be liable, at law or in equity, as a result of any failure of CONSULTANT to comply with this section.

23. 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 c
ontractor and employer in the State of California, all new employees must produce proof of eligibility to work in the United States within the first three days of employment and that only employees legally eligible to work in the United States will perform the Services. CONSULTANT agrees to comply with the IRCA before commencing any Services, and continuously throughout the per
formance of the Services and the term of this Agreement. 2 4. The Parties acknowledge that American Rescue Plan Act (CSLFRF/ARPA) funds awarded by the U.S. Department of the Treasury will be used to fund all or a portion of this Agreement. The CONSULTANT shall comply with all applicable federal laws, regulations, executive orders, policies, procedures, and directives relating to such federal funds.

25. Clean Air Act. CONSULTANT agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. CONSULTANT agrees to report each violation to the CITY and understands and agrees that the CITY will, in turn, report each violation as required to assure notification to the Federal Awarding Agency, and the appropriate Environmental Protection Agency Regional Office. CONSULTANT agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by the Federal Awarding Agency.

Resolution No. 2024-108
Exhibit "A"

446
Item12.

26. Federal Water Pollution Control Act. CONSULTANT agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. CONSULTANT agrees to report each violation to the CITY and understands and agrees that the CITY will, in turn, report each violation as required to assure notification to the Feder
al Awarding Agency, and the appropriate Environmental Protection Agency Regional Office.

CONSULTANT agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by the Federal Awarding Agency.

27. Debarment and Suspension.
a. This Agreement is a covered transaction for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part 3000. As such, CONSULTANT is required to verify that none of CONSULTANT’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (
defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). b. CONSULTANT shall comply with 2 C.F.R. Part 180, Subpart C and 2 C.F.R. Part 3000, Subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction CONSULTANT enters into.
c. This certification is a material representation of fact relied upon by the CITY. If it is later determined that CONSULTANT did not comply with 2 C.F.R. Part 180, Subpart C and 2 C.F.R. Part 3000, Subpart C, in addition to remedies available to the CITY, the federal government may pursue available remedies, including but not limited to suspension and/or debarment.
d. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180, Subpart C and 2 C.F.R. Part 3000, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to incl ude
a pr
ovision requiring such compliance in its lower tier covered transactions.

28. Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended). a. Prior to entering into this Agreement, CONSULTANT shall file the required certificati on pur
suant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352 (as amended)). Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non- federal funds that takes place in connection with obtaining any federal award. Suc h
di
sclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the Federal Awarding Agency.
b. Required Certification. At the time CONSULTANT executes this Agreement, CONSULTANT shall provide the CITY with a completed Appendix A, 44 C.F.R. Part 18 – Certification Regarding Lobbying. A blank Appendix A, 44 C.F.R. Part 18 – Certification Regardi ng Lobby
ing is attached to this Agreement as Attachment “C” and incorporated herein by this reference.

29. Procurement of Recovered Materials. In the performance of this Agreement, CONSULTANT shall make maximum use of products containing recovered materials that are EPA -designated items unless the product cannot be acquired (1) competitively within a timeframe providing for compliance wit
h the Agreement’s performance schedule, (2) meeting Agreement performance requirements, or (3) at a reasonable price. Information about this requirement, along with the list of EPA-designated items, is available at EPA’s Comprehensive Procurement Guidelines website, located at https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. CONSULTANT shall also comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.

Resolution No. 2024-108
Exhibit "A"

447
Item12.

30. Access to Records. The following access to records requirements apply to this Agreement: (1) CONSULTANT agrees to provide the CITY, the Federal Awarding Agency Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of CONSULTANT that are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts, and transcriptions.

CONSULTANT agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. CONSULTANT agrees to provide the Federal Awarding Agency Administrator or their authorized representatives access to construction or other work sites pertaining to the work being completed under this Agreement. In compliance with the Disaster Recovery Act of 2018, the CITY and CONSULTANT acknowledge and agree that no language in this Agreement is intended to prohibit audits or internal reviews by the Federal Awarding Agency Administrator or the Comptroller General of the United States.

31. Federal Awarding Agency Seal, Logo, and Flags . CONSULTANT shall not use the Federal Awarding Agency seal(s), logos, crests, or reproductions of flags or likenesses of Federal Awarding Agency officials without specific Federal Awarding Agency pre-approval.

32. No Obligation by Federal Government. The United States Federal Government is not a party to this Agreement and is not subject to any obligations or Agreement to the CITY, CONSULTANT, or any other party pertaining to any matter resulting from this Agreement.

33. Program Fraud and False or Fraudulent Statements or Related Acts. CONSULTANT acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to CONSULTANT’s actions pertaining to this Agreement.

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

(SIGNATURE PAGE FOLLOWS)
Resolution No. 2024-108
Exhibit "A"

448
Item12.

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

CI

TY OF ESCONDIDO
Date:

Dane White, Mayor
T
Y Lin International
Date:

Signature
Name & Title (please print)
APPROVED AS TO FORM:

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

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

Resolution No. 2024-108
Exhibit "A"

449
Item12.

A. General

ATTACHMENT A
Scope of Work
T.Y. Lin International Group, Ltd., a Delaware Corporation (“Consultant”) will provide the City of Escondido, a California municipal corporation (“City”) with environmental services and construction m
anagement related to the Escondido Creek Trail Multi-Use Path Project (“Project”).

B. Location
Consultant to provide services for the Escondido Creek Trail Multi -Use Path Project , along the Escondido Creek Trail as shown in the plans and engineering drawings. The project starts near Citracado Parkway on the west end and continues to Midway Drive on the east end.

C. Services
A detailed scope of work is attached as Exhibit 1. 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 generally include:

1. Resident Engineer, Construction Management and Inspection.

2. SWPPP QSD, stormwater monitoring and oversight

3. Schedule Analysis

4. Project Administration and Accounting

5. Environmental Services
• Worker Environmental Awareness Program
• Bat Habitat and Acoustic Survey
• Nighttime Emergence Survey, if necessary
• Bat Mitigation and Avoidance Plan, if necessary
• Pre-construction Nesting Bird Survey
• Preconstruction Survey Report
• Biological Monitoring
• Cultural Monitoring
• Archaeological Monitoring
• Noise Monitoring
• Final Monitoring Report

6. Geology, Soil Monitoring, Sampling and Testing
• Hazardous Monitoring and Sampling
• Lab Analysis and Testing
• Field Inspection
• Project Management

7. Electrical Services
• Pre-construction submittals review
• Electrical Inspection
• Street Lighting Inspection
D. Scheduling
Sp
ecific dates of work will be dictated by the construction schedule for the Project. Coordination with the City will be through Jonathan Schauble at 760-839-4072 or [email protected].

Resolution No. 2024-108
Exhibit "A"

450
Item12.

E. Contract Price and Payment Terms
The total contract price shall not exceed $1,074,473. Consultant shall submit monthly invoices to the City detailing hours worked and tasks performed by which staff person. Consultant shall not bill the City for any incidental costs or transportation costs.

The CITY shall make payment of all undisputed portions of such invoice and provide writt en j
ustification for the withholding of any disputed portions to CONSULTANT within 30 calendar days after receipt of CONSULTANT 's monthly invoice. If any undisputed payment is more than thirty (30) days late, CONSULTANT shall (i) provide notice of late payment to CITY, and (ii) if the relevant payment is not made within thirty (30) days of receipt of such late notice, CONSULTANT shall have the option to suspend its provision of Services.

F. Term
The t
erm of this Agreement shall begin from the Effective Date of this Consulting Agreement through June 30, 2027.

G. Other
C
onsultant’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.

Resolution No. 2024-108
Exhibit "A"

451
Item12.

Resolution No. 2024-108
Exhibit "A"

452
Item12.

ATTACHMENT B
Personnel List
Pursuant to Section 4 of the Agreement, CONSULTANT shall only assign performance of Services to persons listed below:

Resolution No. 2024-108
Exhibit "A"

453
Item12.

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:

Joseph Smith, Vice President
07/17/2024
Resolution No. 2024-108
Exhibit "A"

454
Item12.

ATTACHMENT C
Appendix A, 44 C.F.R. Part 18 – Certification Regarding Lobbying Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

The CONSULTANT, T.Y. Lin International Group, Ltd., a Delaware Corporation, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.

Signature of Consultant’s Authorized Official

Name and Title of Consultant’s Authorized Official

Date
07/17/2024
Joseph Smith
Vice President
Resolution No. 2024-108
Exhibit "A"

455
Item12.

EXHIBIT 1
Project Understanding & Scope of Services
Section 1 — Project Understanding & Scope of Services
Resolution No. 2024-108
Exhibit "A"

456
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project further opportunities for walking and
jogging in addition to improvements to the
bike path. The improved Trail will serve
to enhance the surrounding community
through enhanced activities and
partnerships with local businesses, artists,
schools and other organizations.

Project Understanding
The City has completed construction
plans for improvements to the Escondido
Creek Trail that will beautify the space and
increase public access to parkland and
recreational opportunities. This project will
improve and beautify the existing bike path
and trail inviting safe and healthy activities
accessible through the heart of the City.

The project will provide an enhanced
sense of security, lighting, enhanced street
crossings, fitness and play amenities,
native and CA-friendly landscaping, and

PROJECT UNDERSTANDING AND SCOPE OF SERVICES
is expected that RRM will be available to
review contractor submittals for exercise
equipment, benches, special lighting and
railing, and special paving referenced in
the plans. Mr. Williamson will establish the
procedures and lead-time requirements
needed by RRM so that the contractor can
avoid delay with tardy submittals.

Other basic project questions and
background information will be answered
during this meeting as the responsibility
for the project’s success transitions to
the construction management team.

Typical questions to be clarified during the
transition are:

Escondido Creek provides control for
stormwater through Escondido from
east to west. The creek is concrete lined
through the City with access roads on
both sides. Much of the roads are paved
with asphalt concrete and striped for
multiuse, but in some locations, they are
decomposed gravel trails suitable for
bicycles as well as walking.

Project improvements will include branded
signage, lighting, bottle filling stations,
rest benches, dog and waste receptacles,
exercise stations with equipment, as
well as new fencing and railing, with
irrigation and planting. Of course, the
paved portions of the trail will be entirely
resurfaced and re-striped. The finished
product will provide a beautiful and
attractive opportunity to walk or bike into
the downtown without contending with
traffic hazards or parking scarcity.

Project Approach:

Following our Notice to Proceed Resident
Engineer John Williamson will initiate a
kick-off meeting with the City project
manager as well as the lead designer from
RRM Design Group, the project designers.

The purpose of the meeting will be to
establish the level of support RRM will
be able to provide and properly divide
the expected duties to be performed. It

QUESTION RISK/OPPORTUNITY
Level of support for submittal reviews Avoid confusion and expedite reviews Closure requirements for the trail Needed to make a construction schedule Electrical Points of Service planning Avoid schedule delays Long lead item planning Avoid schedule delays
Neighbors and right of way concerns Avoid project conflicts Staging Concepts considered? Effective project delivery Define materials “provided by owner” Avoid delay and confusion Resolution No. 2024-108
Exhibit "A"

457
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project we would love to continue a robust
working relationship with the Design team.

Their project vision and background will be
of great value as we help to execute their
vision and the City’s expectation.

PUBLIC OUTREACH — Depending on the
requirements of the City and the planned
staging for the project. It will be important
to provide notification to the public as
portions of the existing Creek Trail are
closed for construction. Fortunately, for
the majority of route the Photo and video
logs are very important tools to document
the progress of work and to reduce the
potential of claims. Our team will continue
documenting the progress of work during
construction by daily still photographs and
video of all major construction operations.

All drone photos will be available to the
City for their use in public updates or
any other purposes they want to use
them for. The existing trail exists on both
sides of the creek. It is anticipated that
one side of the creek can be closed, and
the improvements constructed, while
the other side remains open. With a bit
of planning and foresight, coupled with
adequate public notifications, disruptions
to trail access will be minimal throughout
the project.

UTILITIES — Coordination with SDG&E will
be critical to the schedule. Installation of
the points of service are needed to provide
power for new irrigation controllers.

Without a firm schedule for these power
sources, the contractor cannot install plant
materials and final project completion will
likely be delayed. Application for power
should be made well in advance of the
beginning of the project. We hope to
assume the application from the design
team and follow through to assure prompt
installation when needed for the irrigation.

John Kannor of DESI will review the
contractor’s schedule for installation of
new points of electrical services. He will
inspect and confirm the installation of the
new irrigation services and coordinate a
seamless connection for the new systems.

CONSTRUCTION MANAGEMENT
PREPARATION — Upon NTP, the TYLin
Team will begin to set-up the project
files in accordance with the Caltrans
Construction Manual. We will establish
our quantity sheets, our daily diary forms,
It is expected that the contractor will
desire to be able to close portions of the
trail to perform the different elements
of the work. It appears that this would
be feasible, since the trail exists on both
sided of the creek. However, it will be
important to carefully define the City’s
expectations for access and clearly
communicate them to the bidders through
the project specifications when the project
is advertised for bid.

The project includes the installation of
several new electrical points of service.

SDG&E is the utility provider for this area.

It is critical that applications have been
made and are in process so that the power
can be made available when needed to
initiate irrigation and lighting throughout
the project. Ideally, contact has already
been initiated by the designer or the City
and the service applications are well along
in the review and approval process.

Material availability will be a large factor in
the contractor’s construction schedule. It
is important that Mr. Williamson coordinate
with RRM’s representative to identify any
long lead items. These items should be
identified and specified to be fast-tracked
for review and delivery to minimize the
construction impact to the public. The
contractor’s schedule can be adjusted to
remain productive while long lead items
are being prepared for delivery.

During this handoff meeting, Mr.

Williamson will request any documentation
that has been prepared to minimize
potential right of way issues. Are there
fence removals to be coordinated with
property owners? Are there access
constraints to be resolved? Are private
trees or landscaping impacting the project
footprint? These are questions that will
need to be resolved during construction
and any preliminary discussions or
agreements should be passed onto the
construction management team.

It appears that the project can be
completed in a piecemeal manner, block by
block and side to side. This approach will
eliminate extended closures of the trail,
allow the work to proceed to completion
at each location minimizing periods of
inactivity, and deliver portions of the
project to the residents relatively quickly
after initiating work at a specific segment
of the trail.

This approach may impose a cost impact to
the contractor for elements that are more
efficiently performed in large quantities
such as striping or fencing. However,
mitigations can be proposed that will
minimize added costs.

The plans show materials that are to
be provided by the owner. It is very
important that the City understands
the responsibility to meet the time and
terms that the contractor will impose for
these deliveries. Clear language in the
specifications is needed.

Pre-Bid Period:

Following the kick-off meeting and
resolution of these and other important
questions, Mr. Wiliamson will lead the
TYLin Team in an in-depth constructability
review of the project plans and
specifications. The review will serve to
clearly communicate the requirements and
expectations of the contract documents
to the potential bidders. Clear documents
assure that bidders understand their
responsibilities and constraints to
construct the project and include ample
budget to meet all expectations.

A careful check of the contract bid items
and quantities will be performed. This will
serve to prevent unexpected cost overruns
because of plan discrepancies with the
actual quantities of work to be performed.

We have divided the project scope into
three distinct phases, Pre-Construction,
Construction Management and Inspection,
and Post Construction. The following
section describes our approach to
achieving success at each phase of the
project. Mr. Williamson will lead the TYLin
Team in executing the scope and delivering
a successful project and a satisfied client.
1 | PRE-CONSTRUCTION
The TYLin Team values the pre-
construction period as an opportunity to
get ahead of issues, establish our tools,
set-up our system, and begin to develop
relationships with the designer, the City,
and other stakeholders.

COORDINATION WITH THE DESIGNER
— Depending on the wishes of the City and
the outcome of the initial kick-off meeting,
Resolution No. 2024-108
Exhibit "A"

458
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project multiple permitting agencies, affected
utilities, the design team and associated
funding agreements. TYLin will administer
the contract while meeting all contractual
commitments and allowing the contractor
to focus on completing the project
without unnecessary delay or cost. TYLin
administered projects have been audited
dozens of times by FHWA representatives
resulting in minimal findings.

SAFETY — TYLin wants every individual
that travels through or works on the
project to feel safe and free of hazards.

We want every worker to go home at night
free of injury. TYLin follows a company
safety plan which requires regional safety
representatives to perform routine checks
of all projects within their domain to
verify that training is ongoing, and that
applicable documentation is kept. Each
Resident Engineer must create a separate
safety plan for their project and submit
it for review. In addition, biweekly virtual
and hands on safety meetings must be
attended and attendance documented.

Our team will consider the public, various
contractors (prime, subs, material
deliveries, and utility contractors), and
any nearby projects (highway, local, or
utility projects), when considering the
safety of an operation. Employees will
have all the required Personal Protective
Equipment (PPE) necessary to perform
their work, including fall protection
harnesses, lanyards, and respirators when
necessary. Key team members will also
attend the contractor’s Monday morning
safety meetings so they are fully briefed
on the upcoming work and potential safety
hazards that could occur. All work will be
performed within Cal OSHA requirements.

TRAFFIC CONTROL —Consistent and
clear communication with the City,
emergency services, and local businesses
and residents will be maintained to
minimize the impacts of construction
traffic through the City during project
construction. When it is necessary to close
a section of the trail, advanced signage will
be posted. When construction activities
necessitate the closure of a local road,
traffic control will be implemented in
conformance with the Manual of Uniform
Traffic Control Devices, (MUCTD) and the
traffic control plan approved by the City.
submittals log, RFI tracking log, CCO log,
material testing log sheets, pile layout
sheets, concrete pour record forms,
and other tools that are consistent with
Caltrans Construction Manual and the
Bridge Records and Procedures Manual.

We will set up and populate spreadsheets
used to track payments and overall
control of the contract. Monthly progress
payments will be reviewed with the City
prior to submission for payment.

PRE-CONSTRUCTION MEETING — TYLin
shall schedule and conduct a pre-
construction meeting with the approved
contractor. TYLin Team members shall be
present and will contact City personnel,
members of the contractor’s team, local
authorities (police, fire, etc.), the design
engineer, and SDG&E. Topics will include
agency expectations, traffic control, safety,
labor compliance, Equal Employment
Opportunity (EEO) compliance,
environmental permits, SWPPP, materials
testing and compliance, contractor
submittals, encroachment permits, quality
control and quality assurance (QA/QC)
expectations, and payment process. A
meeting notice, agenda, and sign-in sheet
shall be prepared for pre-construction
meeting.

PRE, DURING, AND POST-

CONSTRUCTION PHOTO AND VIDEO
DOCUMENTATION — The TYLin Team
understands the need for accurate pre-
construction documentation of conditions.

Our team is prepared to compile a photo
and video log of the pre-construction
conditions.

Photo and video logs are very important
tools to document the progress of work
and to reduce the potential of claims.

Our team will continue documenting the
progress of work during construction by
daily still photographs and video of all
major construction operations. All drone
photos will be available to the City for
their use in public updates or any other
purposes they want to use them for.

The team has used drone photos to
document the existing utility markouts
soon after they were placed at each
phase so that once asphalt was removed
there was still a detailed record showing
exactly where the utilities were. They were
used often to avoid future conflicts when
excavating for storm drains or gas lines.

When the project is complete, photographs
and video of the completed product will be
taken to document the as-built condition
of the project.
2 | CONSTRUCTION MANAGEMENT

AND INSPECTION
The TYLin Team is very familiar with the
scope of services identified in the RFP.

The duties of contract administration,
project documentation, project schedule
control, quality assurance inspection,
material testing, geotechnical services,
and environmental monitoring are what
we do on all of our projects. The following
paragraphs describe a portion of the
TYLin Team’s approach to the project with
the goal of strict adherence to project
specifications, a well-defined pathway
for all expenditures, documentation of
all items of work and conversations, and
a firm control over the project schedule.

Please be assured that our team will satisfy
all the scope items requested.

CONTRACT ADMINISTRATION — To
allow for the City to obtain full funding
reimbursement, this State-funded
project will adhere to the Caltrans
Local Assistance Procedure Manual
(LAPM), specifically Chapters 16 and

17. To account for this, we will have to
create and maintain comprehensive
documentation throughout the project
duration to certify that the project was
administered in accordance with State
and Federal guidelines. The TYLin Team
will administer this project per the latest
revisions of the Caltrans Construction
and Local Assistance Procedures Manuals
and all applicable bridge and roadway
manuals. Our core team members have
dedicated their careers to working on
Caltrans related projects and have years
of experience utilizing the Caltrans filing
system. TYLin understands that the City
has made assurances that various permit
requirements will be upheld and work that
encroaches on other party’s right-of-way
will be performed in strict accordance
with established agreements. Parties to
these related commitments include the
Resolution No. 2024-108
Exhibit "A"

459
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project payment is reached with the contractor,
a CCO will be prepared for review and
approval. If the agreement cannot be
reached, the work will proceed based
on the contract specifications for force
account. Regardless of the method of
payment the actual work performed is
tracked separately on daily reports to
confirm compliance to the language of
the CCO. With final documentation and
acceptance, payment can be made on the
next progress period. Each CCO will have
its own file category and payment will be
measured each month until the entire CCO
is completed and paid in full.

PROJECT DOCUMENTATION — Although
TYLin has experience utilizing web-based
document control systems, for most
projects, we use simple Microsoft Excel
tracking sheets to monitor submittals,
RFIs, CCOs, and budgets. Our team will
utilize a system that is compatible with the
City, the contractor, and other important
stakeholders. Many contractors have a
web-based system for tracking RFIs and
submittals, and TYLin has accounts with
some of these systems so we can utilize
whatever system the contractor is already
set up with. On recent projects with
two well-known contractors, we utilized
ProCore very successfully. We have recent
experience utilizing VPM on a City of
Escondido project.

TYLin is committed to administering public
projects in accordance with the standard
Caltrans procedures. This establishes
the Construction Manual and the Bridge
Construction Record and Procedures
Manual as the main documents by
which documentation will be produced.

Adequate, concise, and searchable
documentation allows for project research
and provides the strength of a position in a
dispute proceeding.

TYLin Team members shall perform
daily inspection of all contractor
activities to ensure compliance with
contract documents. We will evaluate,
approve, or reject the contractor’s and
subcontractor’s work in accordance
with the contract documents and keep
the City’s interest as the top priority
throughout the duration of construction.

We will record all inspection observances
WEEKLY MEETINGS — To maintain
communication on the project and
to provide a forum for discussion
and collaboration, Mr. Williamson will
administer a weekly construction progress
meeting. For consistency, the meeting
will be held the same time and day of the
week, each week. At this meeting, it is
expected that the contractor will provide
a four-week look-ahead schedule that will
allow the TYLin Team to analyze workload
and determine staffing needs for the near
future. This will also assist Mr. Willianson
to provide the City with a weekly project
update so that any upcoming staffing/
inspection requirements by the City,
the TYLin Team, the Designer, and utility
agencies can be planned for.

SCHEDULE CONTROL — The contractor’s
construction schedule will be monitored
and reviewed throughout the duration
of the project. Beginning with the initial
baseline schedule, Mr. Williamson will
review and confirm that it is being
followed. Monthly updates will show the
actual progress of the work compared to
the planned production. If the schedule
slips, a recovery schedule will be required
to show how the project can catch up the
contract completion date.

TYLin is experienced in reviewing CPM
schedules and has the necessary software
to automatically detect and report changes
made in a monthly update that can save
time during schedule reviews and also find
potential errors in a contractor’s schedule
that could lead to problems later if not
detected early. As mentioned previously,
one major key on maintaining this Project’s
schedule will be coordination with the
utility companies early and ensuring they
are prepared for their work when the site
is available for them to start.

COST CONTROL — The cost control
program for the project will mimic the
methodology of the Caltrans Construction
Manual for calculating and tracking
payment on a monthly basis. Quantity
sheets are created by the field inspector
on a daily and weekly basis documenting
the actual field measured quantity of work
that is installed and referenced in daily
diaries. The Q-sheet includes prior work
completed, work completed during the
current month, and the total to date. Also
documented are stationing or location of
the work, quantity dimensions (length,
width, etc.), and reference to verification
of material acceptance for any materials
included in the payment. All quantity
sheets are backed up with calculations,
photos, or other means of verification, and
are checked by an independent party and
referenced to the prior month’s sheet to
confirm that payment is not duplicated or
skipped.

All monthly quantities are entered into
a progress payment spreadsheet and
rechecked for accuracy before submission
for payment. TYLin has successfully passed
many FHWA audits using this process.

TYLin will submit a monthly report to
the City with overview items identifying
percent complete, percent paid, CCOs, and
potential issues, as well as the status of the
CM budget.

Changes or unforeseen conditions are
inevitable on every project. CCOs are
requested by either the contractor or the
owner, depending on the situation.

Mr. Williamson will receive and review and
track all CCO requests. All requests will be
reviewed for merit and discussed with the
City. If it is determined that the change has
merit, the TYLin Team will determine the
most efficient and economical means of
performing the added work.

Once the scope of work for a change
is clearly defined, Mr. Williamson will
prepare an independent cost estimate
of the proposed work for review. If
agreement of cost and method of
Resolution No. 2024-108
Exhibit "A"

460
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project Engineer. The project engineer will review
reports and test results, attend site
meetings as requested, and review billing.

Additionally, the project engineer will act
as a point of contact and will be available
to answer questions that may arise.

ENVIRONMENTAL COMPLIANCE —
The TYLin Team will assist the City with
maintaining environmental compliance
from the pre-construction phase until
the end of the 1-year plant establishment
period. The Mitigation and Monitoring
Program (MMRP) has several measures
that will be addressed by the TYLin Team,
and there are several permits which also
have additional requirements that must
be met. The TYLin Team will provide a
Biological Monitor, Archaeological Monitor,
Paleontologist, and Paleontological Monitor
and an environmental compliance binder
will be maintained throughout the duration
of the Project to document surveys,
monitoring, data, and correspondence.

In addition, the TYLin Team will conduct
audits of ongoing construction operations
and records and assist with external audits
that may be performed by regulatory
agencies.

Atlas will be available to provide
monitoring for hazardous materials. The
SGMP indicates that no active hazardous
materials were identified within the
project corridor based on reviews of the
Department of Toxic Substances Control
Envirostor or California State Water
Resources Control Board Geotracker
databases. However, the SGMP establishes
provisions for assessing and managing
unanticipated contaminated soil or
groundwater that may be encountered
during construction. Examples of possible
sources of soil contamination include
aerially deposited lead (ADL) associated
with historical motor vehicle emissions
along Interstate 15 and migration of
contaminants from offsite release sources.

Atlas will be available to respond to
requests originating from the General
Contractor regarding suspected
impacted soil encountered during
future construction activities. Examples
of construction activities that may
encounter impacted soil include but are
not necessarily limited to subsurface
in a daily diary form which will track
date, weather, item of work performed,
hours of work performed, measurement
of items installed, workers names and
classifications, equipment numbers,
subcontractor’s personnel, conversations,
conflicts and resolutions, photographs of
ongoing operations, and non-compliance
notices (if necessary). When the contractor
encounters difficulties in completing an
item of work, the daily diary will provide
the record of what was done, by whom,
and what actual costs were expended to
complete the work. Project activities will
be photographed daily, labeled, and filed
by date for easy cross reference with daily
reports. Accurate diaries also allow for an
accurate estimate of extra work and assist
in adjusting unit prices where applicable
per the specifications.

Inspection reports will document the
contractor’s cvompliance with the project
plans and specifications. Specific elements
of construction that will be monitored
for his project include, installation of
all project fencing and environmental
controls, clearing and grubbing of surface
materials, trenching and installation
of all conduit and drainage materials,
resurfacing of all asphalt concrete
surfaces. Installation of lighting and
irrigation materials, installation of all
plant materials, and installation of all
recreational and exercise equipment.

TYLin will perform the majority of these
inspections with support from DESI for
electrical and irrigation, and Atlas for the
grading and asphalt sealing work.

The daily and weekly Resident Engineer
diaries are also important pieces
of documentation. These provide
another level of assurance that daily
conversations with the contractor and his
subcontractors, and daily events that may
impact cost and schedule are recorded
and maintained in an accessible location.

REQUEST FOR INFORMATION (RFIS)
—Tracking and responding to RFIs will be
critical to maintaining the project schedule.

Mr. Williamson shall receive, record,
review, and determine who shall respond
to all RFIs. RFIs will be distributed to third
parties for review as necessary. The RFI log
will be discussed at all weekly meetings.

Response times will be determined and
adhered to. Mr. Williamson will make
every effort to respond to an RFI without
involving the City or the design team if it
is within his or his team’s area of expertise
and appropriate to be answered by
someone other than the designer. Some
RFIs will require the Engineer of Record to
respond to them personally.

QUALITY ASSURANCE INSPECTION
— The TYLin Team understands that we
shall endeavor to guard the City against
defects and deficiencies in the work and
ensure that the contractor complies with
all contractual obligations while creating
the highest quality product. Mr. Williamson
will orchestrate the mobilization of TYLin
subconsultants to provide testing and
inspection of materials, such that only
approved materials are incorporated into
the work. Non-complying tests will be
tracked and re-tests will be taken after the
contractor increases his efforts towards
compliance.

A detailed photographic history of all
phases of the project will be maintained
on a daily basis. Photos will be taken of the
opening or changing of detours, barricade
placement, disputed work, work that
must be duplicated, replaced or removed,
completed work, and extra work. Existing
conditions of private property will be
documented to help resolve final project
completion disputes.

MATERIAL TESTING AND ACCEPTANCE,
GEOTECHNICAL SERVICES — Atlas is
part of the team to provide materials
testing and inspection services and
geotechnical services. This includes
all materials and acceptance testing,
backfill and pavement density testing,
geotechnical testing, and hazardous
materials monitoring and testing as
needed for environmental compliance.

We will provide daily inspection reports
describing the work inspected and stating
compliance or non-compliance with the
project documents. Atlas daily field reports
will be sent to the requested recipients
electronically daily. We will provide
supervision of our project personnel by
our project engineer, a Registered Civil
Resolution No. 2024-108
Exhibit "A"

461
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project to reduce direct and indirect impacts to
these species. It will be expressed that
construction personnel shall temporarily
halt restriping activities if a lizard is
observed ahead of restriping equipment
on the maintenance road, until the lizard
is no longer present on the road. All
workers attending the WEAP training will
be documented on a sign-in sheet to be
included in the Final Summary Monitoring
Report, Task 9.

TASK 2 – PRE-CONSTRUCTION BAT

HABITAT AND ACOUSTIC SURVEY
In compliance with mitigation measure
BIO-2, a qualified ECORP bat biologist
will conduct a bat acoustic survey and
habitat assessment of the queen palm
trees to be removed as well as the Date
Street Pedestrian bridge structure near
Date Street to determine if suitable
habitat for roosting bats is present as well
as for the presence of bats and bat sign
(guano, urine staining, audible chatter,
culled insect parts, etc.). The survey will
be conducted within 60 days prior to
construction. ECORP assumes that access
to the channel to view the underside of the
Date Street Bridge will be granted prior
to conducting the survey. Photographs
of bat habitat areas will be taken to
document their presence. The results of
the daytime habitat assessment will be
documented in a Pre-Construction Survey
Report, included here as Task 4. Results
of the survey will be presented to provide
the exact location of any bat-roosting
resources found during the survey.

OPTIONAL TASK 2A – NIGHTTIME

EMERGENCE SURVEY
If suitable roosting habitat and/or evidence
of bat roosting is observed during the
daytime survey, nighttime bat surveys
will be conducted at each of the locations
identified during the daytime survey
simultaneously to verify occupancy and
to determine approximate numbers and
species present. Nighttime surveys will
begin no later than one-half hour before
sunset and continue until up to three hours
after sunset to permit detection of both
day
an
d night-roosting bats. Numbers of
emerging bats will be determined visually
at dusk using night vision equipment. If
construction or repair, utility line work,
or other subgrade activities (e.g., deep
landscaping work or sub-slab excavation or
grading).

In the event that such conditions are
encountered, the GC will be responsible
for reporting evidence of suspected
contamination in soil to the City and the
TYLin Team, including Atlas. The GC will
suspend further excavation or grading
activities until such time that Atlas has
completed preliminary assessment
activities. The preliminary assessment
activities will include conducting air
monitoring using a photoionization
detector (PID) to assess the concentrations
of VOCs within the suspected source
area (i.e., at the interface between soil
and air) and within the breathing zone of
onsite workers or adjacent properties,
as applicable. If determined appropriate
by Atlas personnel, the preliminary
assessment activities may include the
collection and subsequent laboratory
analysis of soil samples to either 1) define
the vertical and lateral extent of impacted
soil in-situ or 2) to characterize stockpiled
soil for the purpose of determining
appropriate soil management and disposal
requirements.

The laboratory analytical requirements
for soil samples collected may vary
depending on the suspected contaminants
of potential concern and/or for waste
classification purposes. Examples of
anticipated laboratory analytical methods
for soil samples include, but are not
necessarily limited to the following:
f Tot
al Petroleum Hydrocarbons, Full
Scan (EPA Method 8015B)
f VOC
s (EPA Method 8260B)
f Org
anochlorine Pesticides (EPA Method
8081)
f Pol
ychlorinated Biphenyls (EPA Method
8082)
f CAM 1
7 Metals (EPA Method
6010B/7471A)
f Pol
ynuclear Aromatic Hydrocarbons
(EPA Method 8270 SIM or EPA Method
8310)
Depending on the results of the initial
sampling, subsequent laboratory analyses
may be necessary to determine whether
waste soil exhibits a characteristic of
hazardous waste that would require
special soil management and disposal
requirements. Examples of additional
waste characterization analyses include
Soluble Threshold Limit Concentration
(STLC) and Toxicity Characteristic Leaching
Procedure (TCLP).

ECORP has reviewed of the Project
permits and plans, and prepared the
following scope of services that are
in compliance with biological, cultural
(archaeological monitoring), and noise
components of the Mitigated Negative
Declaration (MND) and Mitigation
Monitoring and Reporting Program
(MMRP) for the Project.

The ECORP project manager will be Kevin
Israel, a senior biologist with 12 years of
environmental consulting experience in
southern California. He will oversee all
environmental oversight on this project.

He will be supported by experienced
biologists, with specific experience in bat
habitat and roosting assessments as well
as archaeologist, Michael DeGiovine.

The Scope of Work below contains the
technical approach proposed by ECORP for
compliance with the associated mitigation
measures of the Mitigation Monitoring and
Reporting Program (MMRP) for the Project.

TASK 1 – WORKER ENVIRONMENTAL

AWARENESS PROGRAM (WEAP)
In compliance with mitigation measure
BIO-1, a qualified ECORP biologist will
provide one Worker Environmental
Awareness Program (WEAP) training for
the construction crew. Each employee
(including temporary, contractors, and
subcontractors) will receive the WEAP on
the first day of working on the Project.

They will be advised of the potential
impact to special-status species and
the potential penalties for taking such
species. The WEAP will cover potential
occurrence of the special-status species in
the area, their general ecology, sensitivity
of the species to human activities, legal
protection afforded these species,
penalties for violations of Federal and
State laws, and project features designed
Resolution No. 2024-108
Exhibit "A"

462
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project CUL-1 through CUL-10 and the Tribal
Cultural Resource Treatment and
Monitoring Agreement for the Project
(also known as a Pre-Excavation
Agreement), ECORP will provide a qualified
archaeological monitor and coordinate
with a Native American monitor from a
tribe that is traditionally and culturally
affiliated with the Project location (“TCA
Tribe”) to implement the monitoring
program.

In accordance with CUL-3 of the mitigation
monitoring and reporting program, an
ECORP qualified archaeologist will attend
any required pre-construction meeting
with the general contractor, the Native
American monitor, and any subcontractors
to explain the cultural resource mitigation
measures prior to the start of construction
activities. For the purposes of this
scope of work ECORP assumes only one
preconstruction meeting will be required.

TASK 7 – ARCHAEOLOGICAL

MONITORING
ECORP will provide one qualified
professional archaeologist to monitor
ground disturbing activities in accordance
with CUL-4 of the mitigation monitoring
and reporting program. The monitor will
be, or will be working under the direct
supervision of, a professional archaeologist
meeting the Secretary of the Interior’s
Standards for archaeology. ECORP will
submit a list of all archaeologists who may
work on the Project for approval by the
city of Escondido for approval. For the
purposes of this cost estimate, ECORP
will provide a daily rate for archaeological
monitoring and assumes monitoring will
occur over 62 days out of the anticipated
200 days of work. A half day rate is also
provided to be utilized as needed and not
included in the cost estimate totals herein.

In the event that unanticipated cultural
resources or human remains are observed,
all work will stop within the immediate
vicinity of the find and the discovery
notification procedures outlined in the
mitigation monitoring and reporting
program (CUL-5, -6, and -8) will be
followed. Because the cost to evaluate
significance, develop and implement a
treatment plan, and serve as liaison with
maternity roosts for bats are suspected
to be located, these will be documented
thoroughly. Acoustic data will be collected
using ultrasonic bat detectors followed by
analysis of the data to determine species
present. In particular, the survey data will
be examined for evidence of occupation
by sensitive bat species. The results of
the nighttime emergence survey will be
incorporated into the Pre-Construction
Survey Report, included here as Task 4.

OPTIONAL TASK 2B – BAT MITIGATION

AND AVOIDANCE PLAN
If bat roosts are identified during the
surveys conducted in Task 2 and Optional
Task 2A, a Bat Mitigation and Avoidance
Plan will be prepared for CDFW approval.

The plan will include recommendations for
avoidance, minimization, and mitigation
measures to be implemented to protect
bat roosting habitat on site. These
protection measures shall include, as
appropriate: establishment of 300-foot
no-work avoidance buffers, adjusting
construction timing to avoid sensitive
seasons, biological monitoring, two-step
tree removal, and installation of alternative
roosting habitat. Since no work shall occur
within the buffer until after the roosting
season is over, the ECORP biologist will
monitor the area periodically throughout
the roosting season as an aspect of
Biological Monitoring, Task 5, to determine
if the roost is no longer active, in which
case activity in the area may proceed. All
monitoring activities related to bats will be
included in the Final Monitoring Summary
Report at the conclusion of the project,
included here as Task 9.

TASK 3 – PRE-CONSTRUCTION

NESTING BIRD SURVEY
In compliance with mitigation measure
BIO-3, if construction begins within the
avian breeding season (February 1 through
August 31), a qualified ECORP biologist
will conduct a pre-construction nesting
bird survey no more than three days prior
to initiation of ground disturbance and/or
vegetation removal activities. The pre-
construction survey will be conducted
within the project site, plus a 300-foot
no work buffer (500-foot for raptors),
on foot, and within inaccessible areas
(i.e., private properties) or afar using
binoculars to the extent practical. The
survey will be conducted by a biologist
familiar with the identification of avian
species known to occur in southern
California coastal communities. If nests
are found, an avoidance buffer (which is
dependent upon the species, the proposed
work activity, and existing disturbances
associated with land uses in and
around the site) will be determined and
demarcated by the biologist with bright
orange construction fencing, flagging,
construction lathe, or other means to mark
the boundary. All construction personnel
will be notified as to the existence of the
buffer zone and to avoid entering the
buffer zone during the nesting season.

The ECORP biologist will monitor the area
periodically throughout the nesting season
and no ground disturbing activities will
occur within the buffer until the biologist
has confirmed that breeding/nesting is
completed, and the young have fledged
the nest. Any encroachment into the buffer
will be coordinated with the biologist.

TASK 4 – PRE-CONSTRUCTION SURVEY
REPORT
To document results of the Bat Acoustic
Survey and Nesting Bird Survey, ECORP
will prepare a Pre-Construction Survey
Report within one week of completion of
surveys. A draft version of the report will
be submitted electronically for review.

After receiving one round of compiled
comments, a final version will be prepared
and submitted electronically.

TASK 5 – BIOLOGICAL MONITORING
To ensure compliance with required
mitigation measures, ECORP biologists will
monitor activities through the duration of
construction as coordinated with the City,
on an approximately once-weekly basis
throughout the anticipated 200 working
days (40 weeks). Status and location of
project activities will be identified to
determine the need for noise monitoring or
consultation with the client to recommend
avoidance or minimization measures.

TASK 6 – CULTURAL RESOURCES

MEETING ATTENDANCE
In compliance with mitigation measures
Resolution No. 2024-108
Exhibit "A"

463
Item12.

PROJECT UNDERSTANDING & SCOPE OF SERVICES
TYLin | RFP No. 24-23 - Environmental Services and Construction Management for the Escondido Creek Trail Multi-Use Path Project version will be prepared and submitted
electronically.

DELIVERABLES:

All of the above scope items for
Environmental Monitoring will be
thoroughly documented and submitted
for review. The reports will document any
training, details and frequency of any field
studies along with the results of all studies
and observations. Any resulting activities
or mitigation recommendations will be
documented along with confirmation of
the results.

A final report for all environmental
and archaeological monitoring will be
submitted for the use of the City at the
close of the project, documenting full
compliance with the requirements of the
MMRP.
jurisdictional agencies and tribes varies
greatly depending on the nature, size, and
age of the discovery, ECORP will negotiate
a contract amendment upon the discovery
of a resource.

TASK 8 – NOISE MONITORING
In compliance with mitigation measures
N-1, N-2, and N-3, the City shall ensure
that, where residences, schools, or other
noise-sensitive uses are located within
500 feet of construction sites for active
transportation projects, appropriate
measures shall be implemented to reduce
noise exposure to the extent feasible.

The City shall ensure that equipment and
trucks used for construction utilize the
best available noise control techniques
(including mufflers, use of intake silencers,
ducts, engine enclosures and acoustically
attenuating shields or shrouds). The
City shall ensure that impact equipment
(e.g., jack hammers, pavement breakers,
and rock drills) used for construction
be hydraulically or electrically powered
wherever feasible to avoid noise associated
with compressed air exhaust from
pneumatically powered tools. Whenever
feasible, quieter procedures shall be
utilized, such as drilling rather than impact
equipment operation. ECORP will provide
acoustic (noise) monitoring to ensure
compliance with these measures.

TASK 9 – FINAL SUMMARY

MONITORING REPORT
Upon completion of construction activities
ECORP will prepare a Final Summary
Monitoring Report to document the
WEAP and biological, cultural, and noise
monitoring efforts and results. A draft
version of the report will be submitted
electronically for review. After receiving
one round of compiled comments, a final
Resolution No. 2024-108
Exhibit "A"

464
Item12.

Prepared for: City of Escondido
Escondido Creek Path Construction Management
ESTIMATED COST PROPOSAL (Time and materials)
Last Update : 5/1/2024
P

OSITION
ODCs/SUBS
2024 2025 $ Hours $ %
JOHN WILLIAMSON RESIDENT ENGINEER $205.00 $212.00 $20,000 2016 $439,272 41.52% $537,117 50.8% ADRIANNA CARO AS-NEEDED INSPECTOR $168.00 $174.72 216 $36,933 3.49% (incl ODCs in JW line item) NADER NADERI SWPPP QSD $234.00 $243.00 100 $23,760 2.25% WADE DURANT SCHEDULE ANALYSIS $245.00 $253.00 112 $27,696 2.62% CATHY SALAS PROJECT ADMINISTRATION/ACCOUNTING $129.60 $ 1 34.79 72 $9,456 0.89% WORKER ENVIRONMENTAL AWARENESS PROGRAM $850 $850 0.08% $271,150 25.6% PRECONSTRUCTION BAT HABITAT AND AUCOUSTIC SURVEY $3,200 $3,200 0.30% See attached details NIGHTTIME EMERGENCE SURVEY (OPTIONAL) $9,650 0.00% $9,650 Optional BAT MITIGATION AND AVOIDANCE PLAN (OPTIONAL) $6,800 0.00% $6,800 not incl PRECONSTRUCTION NESTING BIRD SURVEY $5,500 $5,500 0.52% in total per PRECONSTRUCTION SURVEY REPORT $4,950 $4,950 0.47% RFP
BIOLOGICAL MONITORING $106,000 $106,000 10.02%
CULTURAL MONITORING $1,700 $1,700 0.16%
ARCHAEOLOGICAL MONITORING $117,800 $117,800 11.13%
NOISE MONITORING $16,000 $16,000 1.51%
FINAL MONITORING REPORT $15,150 $15,150 1.43%
SENIOR GEOLOGIST - HAZ 1-6 MONITORING AND SAMPLING $8,250 $8,250 0.78% $203,507 19.2% LAB ANALYSIS $4,000 $4,000 0.38% See attached details
FIELD INSPECTION $159,300 $159,300 15.06%
PROJECT MANAGEMENT $14,625 $14,625 1.38%
PROFESSIONAL STAFF $6,810 $6,810 0.64%
MATERIALS LAB TESTING $10,522 $10,522 0.99%
PRECONSTRUCTION/SUBMITTALS (NON-PW) $173.72 $180.67 $4,000 40 $10,949 1.03% $46,249 4.4% ELECTRICAL SERVICE CONNECTION INSPECTION** $173.72 $18 0 .67 100 $17,650 1.67% (incl ODCs in precon line item) STREET LIGHTING INSPECTION** $173.72 $180.67 100 $17,650 1.67% $515,107.00 2756 $1,058,023 100% Totals 100.0%
(T&M) Including Optional Items
COST PROPOSAL TOTAL $1,058,023 $1,074,472.58
DESI
T.Y. LIN INTERNATIONAL
ECORP
ATLAS
NAME
La
bor Rates
Fee Estimate
ATLAS
Total Subtotal per Firm
DESI
T.Y. LIN INTERNATIONAL
ECORP
Resolution No. 2024-108
Exhibit "A"

465
Item12.

STAFF REPORT

August 28, 2024
File Number 0230-35

SUBJECT

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ESCONDIDO, CALIFORNIA, EXPRESSING ITS

POSITION AND RECOMMENDATIONS ON BATTERY ENERGY STORAGE SYSTEM PROJECTS IN AND

ADJACENT TO THE CITY OF ESCONDIDO

DEPARTMENT
City Council

RECOMMENDATION
Request the City Council adopt Resolution No. 2024-113 expressing its position and recommendations on Battery Energy Storage System Projects in and adjacent to the City of Escondido.

Staff Recommendation: Approval (City Council: Mayor Dane White, Councilmember Mike Morasco) Presenter: Mayor Dane White
ESSENTIAL SERVICE – Yes, Fire/EMS Services; Keep City Clean for Public Health and Safety; Land Use/Development; Clean Water; Sewer; Public Works/Infrastructure; Maintenance o f Parks facilities/Open Spaces
COUNCIL PRIORITY – Improve Public Safety

FISCAL ANALYSIS
N/A

PREVIOUS ACTION
None

BACKGROUND
On June 5, 2024, Mayor White and Councilmember Morasco requested an item be placed on the Future Agenda to approve expressing the City Council’s position and recommendations on Battery Energy Storage System Projects in and adjacent to the City of Escondido.

466
Item13.

RESOLUTIONS
a. Resolution No. 2024-113

467
Item13.

RESOLUTION NO. 2024-113

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, EXPRESSING ITS POSITION

AND RECOMMENDATIONS ON BATTERY ENERGY

STORAGE SYSTEM PROJECTS IN AND ADJACENT TO THE

CITY OF ESCONDIDO

WHEREAS, the City Council of the City of Escondido (“City Council”) is responsible for ensuring the health, safety and welfare of its citizens; and
WHEREAS, the City Council is mindful of the need for dependable and sustainable energy at reasonable cost to all residents and businesses, particularly at times of high demand; and WHEREAS, the City of Escondido (“City”) is committed to the initiation and development of CleanTech projects and approved the construction and operation of a San Diego Gas & Electric 30MW energy storage facility which, at the time constructed, was the largest such project in the world; and WHEREAS, in an effort to develop alternative energy supplies, there has been an increasing number of proposed and constructed Battery Energy Storage System (“BESS”) projects in the County of San Diego whose technology is fairly new, rapidly evolving and for which there is not a well-documented history of impacts of these projects on local communities; and WHEREAS, on June 7, 2023, the Escondido City Council approved the 2023 to 2028 Comprehensive Economic Development Strategy ( “CEDS”), a five -year roadmap which outlined a plan to improve the City’s local economy which made many findings including that the City had relatively high concentrations of less-than-optimal industries and building types wh ich can impede employment growth and economic opportunity and deter more robust drivers to the City’s economy; and 468
Item13.

WHEREAS, the operational model for BESS projects is remote management and low onsite staffing and therefore placement of these projects in and around the City’s jurisdiction fails to achieve the critical long-range goals of increasing economic and employment opportunities for City residents; optimizing available properties to their highest and best land use; increasing land values; and developing land uses that attract families and business investment; and
WHEREAS, BESS projects do not bring realistic economic benefits to the City, including jobs and new local tax revenue and, instead, may burden the City with health and safety risks; long-term static land use; negative impact on existing residential land values; disincentivizing employers and businesses from locating into the area; and creating lower-than-optimum local sales and ad valorem tax opportunities; and WHEREAS, the City is located in an area of San Diego County subject to severe and destructive wildfires and as such, its residents have been required to undertake extensive fire safety efforts at their homes and have experienced issues such as ever-increasing home insurance premiums or non-renewals of existing policies due to the potential of fires; and WHEREAS, one health and safety concern reasonably related to BESS projects is the potential for the ignition of fires, explosions and “thermal runaway” events which, once initiated, are extremely difficult to extinguish and may require the deployment of City fire and safety resources and personnel to battle those fires; and
WHEREAS, in those cases where BESS projects are pl aced outside of but adjacent to the City’s jurisdictional boundaries, the City Council will not have the ability to review, consider and vote on the project and therefore will not have a sufficient opportunity to control and address the above-referenced concerns about these types of projects or provide oversight of the ongoing operation in the future; and 469
Item13.

WHEREAS, on July 17, 2024, the County of San Diego Board of Supervisors (“Board”) adopted Minute Order No. 8 wherein the Board made several recommendations to the County’s Chief Administrative Officer to establish development standards for siting BESS projects in the unincorporated areas of the County and seek stakeholder input on standards and project review criteria for any projects that may be proposed for Board consideration and approval; and WHEREAS, the City Council concurs in the need for the consideration of local and region -wide design guidelines, development regulations, location placement restrictions, and related controls and criteria subject to input by all relevant stakeholders including residents, urban planners, legislative bodies, utility regulators, energy storage subject matter experts, and industry representatives.

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

1. The above recitations are true and are incorporated herein as though fully set forth.

2. That as currently designed and constructed, the City Council of the City of Escondido does not find that BESS projects accomplish the fundamental development and health and safety goals of the City and those projects planned to be located in the City’s jurisdictional boundaries and/or in its sphere of influence should demonstrate compliance with and promote the values of the City’s CEDS, be safe for residents, and advance all City Council priorities.

3. That the City Council desires to have stringent development standards for any proposed BESS within the City and encourages all city and county development agencies to ens ure that any BESS project in the county is adequately studied, safe, promote good economic value for the inhabitants of the region, and utilize the most up-to-date technology for long-term value.

4. That the City Council of the City of Escondido desires to express and declare its concerns over BESS projects generally as they relate to the future development of this City and this Resolution does 470
Item13.
not constitute the expression of any final determination on a particular development application or BESS project.

471
Item13.

STAFF REPORT

August 28, 2024
File Number 0650-10

SUBJECT
CANCELLATION OF NOVEMBER 5, 2024 GENERAL MUNICIPAL ELECTION FOR THE POSITION OF CITY

TREASURER AND THE APPOINTMENT OF THE INCUMBENT CANDIDATE TO THE OFFICE OF CITY

TREASURER

DEPARTMENT
City Clerk’s Office

RECOMMENDATION
Request the City Council approve the City Clerk's certification that there are not more candidates than offices to be filled for the position of City Treasurer for the City of Escondido's (“City”) General Municipal Election on November 5, 2024; and consider and discuss whether to cancel the City Election and appoint the respective incumbent as the only verified candidate for the open office, or hold the City Election as scheduled.

Staff recommends adopting Resolution No. 2024-125 to authorize cancelling the November 5, 2024 , General Municipal Election for the Office of City Treasurer for the four-year term from 2024 -2028 and appoint the incumbent City Treasurer to the position.

Staff Recommendation: Approval (City Clerk’s Office: Zack Beck, City Clerk) Presenter: Zack Beck, City Clerk
ESSENTIAL SERVICE – No
COUNCIL PRIORITY – Eliminate Structural Deficit

FISCAL ANALYSIS
General municipal election costs are determined by the County of San Diego Registrar of Voters, who has estimated a cost of $110 ,000 to $160,000 for the City Treasurer’s Office. The cancellation of the November 5, 2024 , General Municipal Election for the position of City Treasurer and appointing the incumbent to their respective office will save the City approximately $110,000 to $160,000.

PREVIOUS ACTION
None
472
Item14.

BACKGROUND
On July 1, 2024, the City Clerk published a Notice of Election (Attachment “1”) for Public Office providing that the City would be holding a General Municipal Election on Tuesday, November 5, 2024, and inviting candidacy and nomination papers for the offices of City Treasurer, City Council District 3 and City Council District 4. The deadline for candidates to file nomination papers to seek any of these offices was Friday, August 9, 20 24 ( the City C ouncil District 4 filing deadline was extended to August 14, 2024 , as the incumbent did not seek re-election to that office). At the close of the nomination period, the City Clerk's office received one verified candidate filing for the office of City Treas urer from the incumbent, City Treasurer Douglas W. Shultz.

After the close of the nomination period, the City Clerk submitted a written certification to the City Council that there is only one candidate (incumbent) nominated for the office of City Treasurer, which is scheduled to be filled at the upcoming City Election; a copy of the certification is attached (Attachment “2”) to this Staff Report.

Because there are no candidates challenging the incumbent City Treasurer, the City Council has the option to cancel the upcoming City Election for the office of City Treasurer and appoint the incumbent candidate to the office of City Treasurer. Alternatively, the City Council could choose to hold the City Election as, scheduled.

California Elections Code Section 10229 permits the governing body to take one of the following courses of action when the number of candidates nominated for office does not exceed the number of offices to be filled at a municipal election:

1. Appoint to the office the person who has been nominated; or *2. Appoint to the office an eligible elector if no one has been nominated; or

3. Hold the election, if either no one or only one person has been nominated. *Option 2 is not applicable; therefore, the City Council may consider and act on either option 1 or 3.

Adopting Resolution No. 2 024-125 would result in the cancellation of the upcoming City Election with respect to the office(s) under consideration, and would result in the appointment of the uncontested incumbent(s) to the office(s) under consideration for a four -year term from 202 4-2028. Appointed incumbent(s) would qualify, take office and serve exactly as if elected at a general municipal election, and would take the Oath of Office, be formally seated and begin their new terms at the December 11, 2024 City Council meeting. Additionally, the City Clerk would not be permitted to accept for filing any statement of write-in candidacy submitted for the City Election.
473
Item14.

RESOLUTIONS
a. Resolution No. 2024-125

ATTACHMENTS
a. Attachment “1”– Notice of Election
b. Attachment “2”– Nomination Certification
474
Item14.

RESOLUTION NO. 2024-125

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

ESCONDIDO, CALIFORNIA, CANCELL ING THE
NOVEMBER 5, 2024 , GENERAL MUNICIPAL ELECTION

FOR THE OFFICE OF CITY TREASURER AND

APPOINTMENT OF THE INCUMBENT FOR T HE FULL
FOUR-YEAR TERM FROM 2024-2028

WHEREAS, the City of Escondido (“City”) has scheduled a General Municipal Election on November 5, 2024, to elect an individual to fill one (1) City Treasurer seat; and WHEREAS, at the close of the nomination period on August 9, 2024, the only candidate papers received and verified by the City Clerk for the office of City Treasurer were from the incumbent City Treasurer; and
WHEREAS, on August 9, 2024, the City Clerk submitted a written certification to the City Council providing there are not more candidates nominated for the office of City Treasurer than seats to be filled at the General Municipal Election; and
WHEREAS, pursuant to California Elections Code Section 10229, the City Council is authorized to take one of the following courses of action when the number of candidates nominated does not exceed the number of offices to be filled at a municipal election:

1. Appoint to the office the person who has been nominated; or

2. Appoint to the office an eligible elector if no one has been nominated; or

3. Hold the election, if either no one or only one person has been nominated. 475
Item14.

WHEREAS, a notice of the foregoing facts was published in the Times Advocate, a newspaper of general circulation in the City of Escondido.

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

1. That the above recitations are true.

2. That the City of Escondido General Municipal Election scheduled to be held on Tuesday, November 5, 2024, is hereby cancelled with respect to the office of City Treasurer only.

3. Pursuant to California Elections Code Section 10229, the following incumbent is hereby appointed to the office to which he was nominated:

Name Office Term
Douglas W. Shultz City Treasurer Four Years

4. The appointed City Treasurer shall qualify and take office and serve exactly as if elected at a general municipal election for the office.

5. The Oath of Office shall be administered and the appointed City Treasurer shall be formally seated and begin his new term at the December 11, 2024, City Council meeting.

6. The City Clerk shall not accept for filing any statement of write -in candidacy for the office of City Treasurer which may be submitted for the General Municipal Election.

7. The City Clerk shall certi fy to the passage and adoption of this Resolution and shall file a certified copy of this Resolution with the County of San Diego Registrar of Voters. 476
Item14.

Attachment "1"
477
Item14.

Attachment "1"
478
Item14.

CI

TY OF ESCONDIDO

OFFICE OF THE CITY CLERK
201 NORTH BROADWAY
ESCONDIDO, CALIFORNIA 92025-2798
(760) 83
9-4617
NO

TICE OF CITY CLERK CERTIFICATION THAT THERE ARE NOT MORE

CANDIDATES THAN OFFICES TO BE ELECTED FOR THE SEAT OF CITY

TREASURER
I, Z
ACK BECK, City Clerk of the City of Escondido, do hereby certify , that pursuant to the Elections Code Section 10229 of th e State of California, to the following facts relating to the General Municipal Election to be held on Tuesday, November 5, 2024.

A
s of the close of the nomination period on August 9 , 20 24, there are not more candidates than offices to be elected for the seat of City Treasurer.

T
he person(s) so nominated are:

D
ouglas W. Shultz — City Treasurer
T
hat Section 10229 of the Elections Code allows one of the following courses of action to be taken by the City Council:

1. A
ppoint to the office the person(s) who has / have been nominated.

2. Appoint to the office any eligible elector if no one has been nominated.

3. Hold the election, if either no one or only one person has been nominated.

A
notice of these facts will be published on August 15, 2024, in a newspaper of general circulation in the city pursuant to Section 6061 of the Government Code. After the fifth day following the date of publication, the City Council will meet to either make the appointment(s) or direct an election to be held. The person(s) appointed, if any, shall qualify and take office and serve exactly as if elected at a municipal election for the; office.

I
f, by the 75th day before the municipal election, no person has been appointed to the office(s) pursuant to (1) or (2) above, the election shall be held.

I
f the City Council makes an appointment pursuant to Elections Code Section 10229, the City Clerk shall not accept for filing any statement of write- in candidacy which is submitted after the appointment is made.
________________
Z
ack Beck
City Clerk
Docusign Envelope ID: 94D17872-CDCD-4571-85E5-8332E59D3DE6 Attachment "2"
479
Item14.