04-02-19 Agenda Packet
CITY OF POWAY
CITY COUNCIL AGENDA
TUESDAY, APRIL 2, 2019
REGULAR CITY COUNCIL MEETING – 7:00 P.M.
COUNCIL CHAMBERS | 13325 CIVIC CENTER DRIVE | POWAY, CALIFORNIA 92064
The City Council also sits as the City of Poway Planning Commission, Poway Housing Authority,
Public Financing Authority and Successor Agency to the Poway Redevelopment Agency
The City of Poway welcomes you and encourages your continued interest and involvement in the City’s
decision-making process.
MEETINGS: Regular City Council meetings are held on the first and third Tuesday of the month at
7:00 p.m.
PUBLIC MEETING ACCESS: Regular City Council meetings are broadcast live on Cox
Communications Channel 24 and Time Warner Channel 19. Council meeting videos are archived and
available for viewing on the City’s website.
AGENDA MATERIALS: This agenda contains a brief summary of each item the Council will consider.
The Agenda and Agenda Packet is posted seven (7) days prior to regular City Council meetings and
are available for viewing on the City’s website at www.poway.org or in the City Clerk’s office of City Hall,
13325 Civic Center Drive. Sign up at www.poway.org to receive email notifications when City Council
agendas are published online. Items listed on the agenda with a “#” symbol are in preparation.
SPEAKERS: Persons wishing to address the Council on matters not on the agenda may do so under
Public Comments. Those wishing to speak on items on the agenda may do so when the item is being
considered. Please submit a Speaker’s Slip to the City Clerk prior to the meeting or the announcement
of the item. All comments will be limited to three (3) minutes.
AMERICAN DISABILITIES ACT TITLE II: In compliance with the Americans with Disabilities Act of
1990, persons with a disability may request an agenda in appropriate alternative formats as required
by Title II. Any person with a disability who requires a modification or accommodation in order to
participate in a meeting should direct such request to the City Clerk’s office 858.668.4530 at least 24
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REMINDER: As a courtesy to all attendees, please silence all electronic devices and engage in
conversations outside the Council Chambers.
John Mullin Dave Grosch
Councilmember Deputy Mayor Caylin Frank Barry Leonard
Councilmember Councilmember
Steve Vaus
Mayor
Amended March 29, 2019
Page 2 City Council – Regular Agenda April 2, 2019
CALL TO ORDER
ROLL CALL Mullin, Leonard, Frank, Grosch, Vaus
PLEDGE OF ALLEGIANCE
PRESENTATION
PUBLIC ORAL COMMUNICATIONS
NOTE: In accordance with State law, an item not scheduled on the agenda may be brought forward by
the general public for comment; however, the City Council will not be able to discuss or take action on
any issue not included on the agenda. If appropriate, your concerns will be referred to staff. Comments
are limited to three (3) minutes. Speakers will have only one opportunity to address the Council under
Public Oral Communications.
1. CONSENT CALENDAR (Approved By Roll Call Vote)
The Consent Calendar may be enacted in one motion by the Council without discussion unless a
Councilmember, a member of the public, or City staff requests that an item be removed for discussion.
1.1 Approval of Reading by Title only and Waiver of Reading in full of Ordinances on Agenda
1.2 Ratification of Warrant Registers for the Periods of February 25, 2019 through March 1, 2019; and
March 4, 2019 through March 8, 2019
1.3 Approval of the March 5, 2019 Regular City Council Meeting Minutes
1.4 Second Reading and Adoption of Ordinance No. 826 entitled “An Ordinance of the City of Poway,
California, Adding Chapters 5.22 to the Poway Municipal Code and Amending Section 9.48.240
(A) of the Poway Municipal Code Relating to Regulation of Sidewalk Vendors”
1.5 Second Reading and Adoption of Ordinance No. 827 entitled “An Ordinance of the City of Poway,
California, Amending Chapters 1.02, 1.08, 1.10, 2.20, 8.72, 8.76, 8.80, 13.09, 15.02, and 17.54
Adding Chapters 15.03 and 15.32, and Deleting Chapters 16.56, 16.68 and 8.84 of the Poway
Municipal Code Relating to Code Compliance”
1.6 First Lease Amendment for Telecommunications Facility at 12700 Sagecrest Drive – Pomerado
Reservoir; New Cingular Wireless PCS, LLC
1.7 Agreement for Purchase of a Microsoft Enterprise Agreement; Crayon Software Experts, LLC
1.8 Joint Use Agreement for Cooperative Facilities Use and Maintenance; Poway Unified School
District (PUSD)
2. ORDINANCE
None.
Page 3 City Council – Regular Agenda April 2, 2019
3. PUBLIC HEARING
3.1 Tentative Tract Map 19-001: Time Extension Request for Previously Adopted Tentative Tract Map
City Manager’s Recommendation: It is recommended that the City Council take public input,
close the public hearing and adopt a resolution approving Tentative Tract Map 19-001; a time
extension of the approval for Tentative Tract Map 06-02; Assessor’s Parcel Numbers (APN): 277-
080-04, 27-071-05, 14, 16, and 19.
3.2 FY19-20 Road Repair and Accountability Act of 2017 List of SB 1 Funded Projects
City Manager’s Recommendation: It is recommended that the City Council take public input,
close the public hearing and adopt a resolution adopting a list of projects for Fiscal Year 2019-20
funded by SB 1: The Road Repair and Accountability Act of 2017.
4. STAFF REPORT
4.1 Amendment to Villa de Vida Affordable Housing Project Disposition Development and Loan
Agreement
City Manager’s Recommendation: It is recommended that the City Council and the Poway
Housing Authority approve the third amendment to the Disposition, Development and Loan
Agreement for the Villa de Vida project and authorize the Executive Director of the Poway Housing
Authority to execute the Disposition, Development and Loan Agreement and all ancillary
documents.
4.2 Initiation of Proceeding for the Formation of Landscape Maintenance District 19-1
City Manager’s Recommendation: It is recommended that the City Council: (1) adopt a
resolution initiating proceedings for the formation of Landscape Maintenance District 19-1;
directing the preparation and filing of an Engineer’s Report related thereto, pursuant to the
provisions of Part 2 of Division 15 of the California Streets and Highways Code; and initiating
proceedings to detach territory from City of Poway Landscape Maintenance District 87-1; and,
(2) adopt a resolution declaring the City’s intention to form Landscape Maintenance District No.
19-1 and to levy and collect annual assessments related thereto commencing Fiscal Year 2019-
20, pursuant to the provisions of Part 2 of Division 15 of the California Streets and Highways Code;
calling for a property owner protest proceeding, to submit to the qualified property owners the
question of levying such assessments and establishing an Assessment Range Formula for said
district pursuant to the provisions of the California Constitution, Article XIII D; and declaring its
intention to detach parcels of property from Landscape Maintenance District 87-1.
5. WORKSHOP
None.
6. MAYOR AND CITY COUNCIL-INITIATED ITEMS
COUNCILMEMBER COMMITTEE REPORTS – Pursuant to AB1234 - (G.C. 53232(d))
JOHN MULLIN
BARRY LEONARD
Item 1 . 1
Approval of Reading by Title Only and
Waiver of Reading in Full of Ordinances
on Agenda.
G`,.I OF POI gY
City of Poway
TyF COUNCIL AGENDA REPORT
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Donna Goldsmith, Director of Finance
CONTACT: Andrew White, Interim Finance Manageryx
858) 668-4426 or awhite(aipoway.org
APPROVED
APPROVED AS AMENDED
SEE MINUTES)
DENIED
REMOVED
CONTINUED
Payroll 3-1 -19
RESOLUTION NO.
SUBJECT: Ratification of Warrant Registers for the Periods of February 25
through March 1, 2019, and March 4 through March 8, 2019
Summary:
The attached warrant register reports for the periods of February 25 through March 1, 2019, and
March 4 through March 8, 2019 are submitted to the City Council for ratification/approval.
Recommended Action:
It is recommended that the City Council ratify/approve the attached warrant registers.
Discussion:
Weekly registers of audited demands are periodically submitted to the City Council by the Finance
Director for ratification/approval.
Date
February 25 through March 1, 2019
Amount
3,789,734.08
Warrants for amounts in excess of $100,000 for this period include:
Warrant Check Number Amount
Federal Home Loan Bank Investment Purchase 905026 989,506.25
Treasury Note Investment Purchase 905027 999,830.88
Payroll 3-1 -19 905028 526,955.48
Federal Farm Credit Bank Investment Purchase 905038 999,030.00
Date Amount
March 4 through March 8, 2019 2,041,552.18
Warrants for amounts in excess of $100,000 for this period include:
Warrant Check Number Amount
March 2019 Medical Insurance 403609 $ 214,419.04
Jan 2019 Law Enforcement Services 403673 $1,035,843.67
1 of 24 April 2, 2019, Item #1.2
Ratification of Warrant Registers
April 2, 2019
Page 2
Environmental Review:
This item is not subject to CEQA review.
Fiscal Impact:
The total amount of warrants for the period of February 25 through March 1, 2019 is
3,789, 734. 08.
The total amount of warrants for the period of March 4 through March 8, 2019 is $2,041,552.18.
Public Notification:
None.
Attachments:
A. Warrant Register for the period of February 25 through March 1, 2019
B. Warrant Register for the period of March 4 through March 8, 2019
Reviewed/Approved By: Reviewed By:
Wendy Kaserman Alan Fenstermacher
Assistant City Manager City Attorney
Approve
Tina M. White
City Manager
2 of 24 April 2, 2019, Item #1.2
City of Poway Director of Finance Submits the Following Register of DemandsFDThe
for the period 2/25/2019 - 3/1/2019 and Recommends its Ratification/Approval:
Run Date: 13-Mar-19
N
Check Check Payee/
Number Date Vendor# Payee/Vendor Name Invoice Number
DescriptionZit
Org Object Project Check Amount it
403499 01-Mar-19 1924 2 HOT UNIFORMS INC 18734 Uniforms 501050 49280 677.75 d
403500 01-Mar-19 506 AO REED & CO 93509 Fire Station #1 Duct Cleaning 415010 41200 408.00 ai
93510 Fire Station #2 - duct cleaning 415010 41200
r
444.00 N
93511 Fire Station #3 - duct cleaning 415010 41200 408.00 Ci
303967 Plumbing Service and Repair Se 415010 41200 2,482.00 .a
303884 City Hall Replace transducer 415010 43020 1,297.00 Q
Total for Check 403500: 5,039.00
403502 01-Mar-19 883 ADVANCED WEB OFFSET, INC. 19-0313 Spring Community Services Guide Printing 200020 49220 6,952.00
403503 01-Mar-19 5 AGRI SERVICE 89052 Mulch 414040 47700 807.84
403504 01-Mar-19 196 AIRGAS WEST 9959682964 WrP Cylinder Rental 402060 47500 113.60
9085267020 Medical Oxygen 503050 47500 186.18
9085119245 Tower smoke 501050 47900 293.78
9959641869 Medical Oxygen 503050 47500 480.65 F
9959641870 Tower Smoke 501050 47900 27.72 W
9959641868 Apparatus supplies and Oxygen supplies 501050 47600 41.54 =
9959641868 Apparatus supplies and Oxygen supplies 503050 47500 1,557.25 Q
9085316946 Medical Oxygen 503050 47500 84.79 H
Total for Check 403504: 2,785.51 Q
403505 01-Mar-19 458 AMERICAN INNOTEK INC 614766 Wrhse: Supplies - Disposable Urine Bags F1000 81350 981.64
403506 01-Mar-19 835 AT&T 12588908 BAN 9391026547 01/10/ 19 - 02/ 09/19 400060 33010 39. 78
12588899 BAN 9391026535 01/10/19 - 02/09/19 414040 22000 19.06
12588909 BAN 9391026548 01/10/18 - 02/09/19 414040 22000 20.71
12588907 BAN 9391026546 01/10/19 - 02/09/19 414040 22000 20.71
12588910 BAN 9391026549 01/ 10/19 - 02/09/19 423040 22000 20.71
12588904 BAN 939102654101/10119 - 02/09/19 430050 23010 20.71
12590472 BAN 9391064044 15498 Espola Road 1/10-
204020 33010 21.25
02/09/19 N
12563662 BAN 9391063084 Senior Center 01/03-
208020 22000 58.87 O
02/ 02/19
CO)
12588903 BAN 9391026540 1/10/19-2/9/19 413010 33010 20.71
12588900 BAN 9391026536 WiP Modems 1/10/ 19-
402060 33010 20. 77
2/9/19
Register of Demands:
Johnny covers
Warrants from 2/25/2019 3/1/2019
Check Check Payee/
Number Date Vendor # PayeelVendor Name
403506 01 -Mar -19 835 AT&T
403507 01 -Mar -19 453
403508 01 -Mar -19 1574
403509 01 -Mar -19 1329
403510 01 -Mar -19 1498
403511 01 -Mar -19 1472
403513 01 -Mar -19 1126
403512 01 -Mar -19 445
403514 01 -Mar -19 861
403515 01 -Mar -19 70
403485
403516
403517
w.
403518
01 -Mar -19 999996
01 -Mar -19 1023
01 -Mar -19 373
01 -Mar -19 609
403519 01 -Mar -19 286
Invoice Number Description Org
12521549 BAN 9391051949 -City Hall Net- 12124/18- 1140101123/19
12521089 BAN 9391026567 Group Bill 12/24118-123119 114010
12574689 BAN #9391026551 1/6119-2/5/ 19 114010
BAY CITY EQUIPMENT INDUSTRIES, INC W203932
BEST PLUMBING SPECIALTIES, INC.
BOOT BARN
BRAINSHINE
BRIDGESTONE HOSEPOWER
CALIFORNIA SAFETY PRODUCTS
CAL -STATE AUTO PARTS INC
CHAULK MOUND TROUT RANCH
CITY CLERKS ASSOCIATION OF
CALIFORNIA
CIVITATE, RICHARD
CLINICAL LABORATORY OF SAN
BERNARDINO INC.
COAST RECREATION, INC.
COMMERCIAL TRANSPORTATION
SERVICES
COSTCO WHOLESALE
W204120
W204185
W204119
W204199
W204197
Unit 564 Fleet Generator Maintenance
PS -15 Unit 751 Heights Upper Generator
Maintenance
WTP: Unit 755 Generator Maintenance
PS -14 Heights Generator Maintenance
LS -1 Old Coach Generator Maintenance
PS -1 Generator Maintenance
5853194 Johnny covers
IVC0166686 FY2019 Boot Allowance: Sanlamana
4240 Graphic Artist for Spring Community Services
33010
Guide
82025432-00 Water Dist: DM Truck Hydraulics
2019-107 Wrhse: (96) Safety T -Shirts
449505 Fleet: Credit for Invoice 37562
34529 Fleet: Supplies - Battery
201902-010 1,500 lbs trout
1908 CCAC Membership - FMedina
PW18000245 Refund for Service 121/18
967094 Monthly Lab Waste Water Samples
12737 Playground structure repair parts
3391 Class A Training
3391 Class A Training
3391 Class A Training
413010
402060
402060
402060
403070
402060
415010
402560
200020
402560
F1000
413010
413010
202020
101010
503050
403070
414040
402560
403570
411040
Page: 2 of 11
Object Project Check Amount
22000 690.51 n!
r
33010 697.46
33010 928.03 .2
Total for Check 403506: 2,579.28 cr
41200
r
140.00 N
41200 778.00 N
41200
L
125.00 Q
41200 778.00
41200 778.00
41200 743.00
Total for Check 403507: 3,342.00
47600 15. 66
49280 100.00
17999 4,539.00
47600 49.03
81350 1,253.62
47900 81.57)
47900 87.21
Total for Check 403512: 5.64
45110 7,305.00
49240 130.00
77550 250.00
17300 134.00
48260 1,837.20
31040 613.73
31040 613.73
31040 351.78 N
Total for Check 403518: 1,579.24 C
a
77510205321 PW All Hands Meeting Refreshments 400060 14010 201.87
Register of Demands:
Warrants from 2/25/2019 - 3/1/2019 Page: 3 of 11
Check Check Payee/
Number Date Vendor# PayeeNendor Name Invoice Number Description Org Object Project Check Amount
403519 01 -Mar -19 286 COSTCO WHOLESALE
77511391321 JPIA Training Refreshments: Traff Cont & 400060 47600 $235.69 NFlagging
Total for Check 403519: $437.56
403520 01 -Mar -19 85 COUNTY OF SAN DIEGO AIR POLLUTION
of
CONTROL DISTRICT 05769 -2005 -RI -2019
403521 01 -Mar -19 1308 DEKKER, PAUL 2003.200-01.19
403482 26 -Feb -19 60 DEPARTMENT OF FISH AND WILDLIFE 2019 PROJECTS
403560 01 -Mar -19 929 DUNABLE, WILLIAM F. 219019
403486 01 -Mar -19 999996 DYER, ARTHUR PW18002984
403492 01 -Mar -19 999991 EGN HOLDINGS LLC
59800 500.00
Homeshare & Comm Connect - January 2019 80002413 P2410
BA04-02
403522 01 -Mar -19 567 ELDERHELP OF SAN DIEGO Jan 2019
403523 01 -Mar -19 724 FASTENAL COMPANY CASAD56578
403524 01 -Mar -19 102 FEDEX 6-454-71425
403525 01 -Mar -19 116 FERGUSON WATERWORKS 0663864
Water Dist. Air Release Protection 402560 47600 258.60
0664237
402560 47600 86.52
Water Dist. Vaughn Valve Replacement
CM053689
47600 18.17
GA Meter Upgrade 402560
0663325
119.47
GA Meter Raise 402560 47600
0663778
Total for Check 403525: 1,133.32
0664881
501050 47500 969.75
Rope Rescue equipment
0664185
47500 146.54
Rope Rescue equipment 501050
0664242
403526 01 -Mar -19 104 FIRE ETC. 125848
125848
125848
403527 01 -Mar -19 120 GRAINGER INC 9087461217
9087461209
9087020112
9081550668
9076536557
403528 01 -Mar -19 1798 HACH CHEMICAL COMPANY 11331535
d
Unit 754 Camino Del Valle 4/2019 - 4/2020 403070 57300 521.00 =
of
Instructor Payment Fall 2018 208020 41300 825.00 — 0
Permit No. 1600-2008-0321-R54 Main Projects 412040 57300 1,124.00 N
N
Test and certify Lidar and Radar units 504050 43080 975.00
Refund for Service 8/25/18 503050 77550 301.59 Q
BA04-02 Initial deposit 14486 Southern Hills
Lane 392030 59800 500.00
Homeshare & Comm Connect - January 2019 80002413 P2410 1,502.65
Water Dist. Meter Bolts 402560 47600 39.18
Mail Documents 110010 33020 11.56
Lake Poway Campground: pipe fusion 414040 41200 520.44
Water Dist. GA Meter Raise 402560 47600 566.87
Credit for Invoice 0663002 402560 47600 443.82)
Water Dist. Air Release Protection 402560 47600 258.60
Water Dist. - Meter Stop Repair 402560 47600 86.52
Water Dist. Vaughn Valve Replacement 402560 47600 18.17
GA Meter Upgrade 402560 47600 119.47
GA Meter Raise 402560 47600 7.07
Total for Check 403525: 1,133.32
Rope Rescue equipment 501050 47500 969.75
Rope Rescue equipment 501050 47500 146.54
Rope Rescue equipment 501050 47500 1,882.93
Total for Check 403526: 2,999.22
Wrhse: Supplies - (3) Clean Out Plugs F5200 81350 15.70
Wrhse: Supplies -Adapters, Elbows & Plugs F5200 81350 253.71
Crew Room Supplies 402060 47600 94.51 IT
WfP Chemical Reagents for Analyzers 402060 47600 59.10 w
Dock Supplies 202020 47600 8.49 0
Total for Check 403527: 431.51
WTP Chemical Reagents for Analyzers 402060 47600 496.32
Register of Demands:
Warrants from 2/25/2019 - 3/1/2019
Check Check Payee/
Number Date Vendor* Payee/Vendor Name Invoice Number
403529 01 -Mar -19 123 HARRINGTON INDUSTRIAL PLASTICS INC 004J3147
004J3245
403487 01 -Mar -19 999996 HEALTH NET PW18001940
403530 01 -Mar -19 152 HOME DEPOT COMMERCIAL ACCOUNT 1210886
1210890
1122532
8223397
8223398
7223402
403531 01 -Mar -19 648
905025 26 -Feb -19 906
403532 01 -Mar -19 421
403501 01 -Mar -19 1975
403533 01 -Mar -19 391
403534 01 -Mar -19 910
905029 01 -Mar -19 616
905030 01 -Mar -19 616
905031 01 -Mar -19 616
905032 01 -Mar -19 616
905033 01 -Mar -19 616
403535 01 -Mar -19 170
INGERSOLL-RAND COMPANY
INSIGHT NORTH AMERICA LLC
KEYSER MARSTON ASSOCIATES INC
LAZFAM INC
LIFE -ASSIST, INC.
LOWE'S
MANUFACTURERS & TRADERS TRUST
CO. BANK
MANUFACTURERS & TRADERS TRUST
CO. BANK
MANUFACTURERS & TRADERS TRUST
CO. BANK
MANUFACTURERS & TRADERS TRUST
CO. BANK
MANUFACTURERS & TRADERS TRUST
CO. BANK
MIRAMAR BOBCAT INCORPORATED
24742018
24737544
22728A
0033180
43509
900092
900087
900551
901004
901013
12790
457 PPE 2/24/19
457R PPE 2/24/19
401A PPE 2/24/19
ROTH PPE 2/24/19
RHS PPE 2/24/19
P02674
Page: 4 of 11
Description Org Object Project Check Amount
W!P System PVC Parts - 402060 47600 595.00 nl
PS -10 Pump 1 Parts402060 47600 98. 02 *k
Total for Check 403529: 693.02 d
Refund for Services 6/4/18 503050 77550 115.97
Irrigation repair shop supplies 414040 47700 62.52 p
Brass hex bushing 414040 47700 9.01 N
Credit Memo from invoice 1210890 414040 47700 9.00) •`
Repair Supplies 411040 47600 300.29 Q
Carriage Bolt 411040 45300 4.01
Tarp 412040 47600 37.69
Total for Check 403530: 404.52
Lake Compressor Repair Parts 402060 47600 552.76
Lake Air Compressor Repair Parts 402060 47600 539.85
Total for Check 403531: 1,092.61
Investment Advisory Services Jan 2019 111010 17999 2,993.06
Villa De Vida Professional Services - January
2019 80002903 P2900 4,158.73
Spring Community Services Guide Mail
Bundling 200020 33020 356.57
Medical supplies 503050 47400 702.63
Medical supplies 503050 47400 671.39
Medical Supplies 503050 47400 1,247.40
Medical Supplies 503050 47400 441.78
Medical Supplies 503050 47400 1,457.18
Total for Check 403533: 4,520.38
WfP Water Softener & Cleamell Parts 402060 47600 67.55
ICMA 457 deferred comp deductions PPE F1000 86120 27,503.222/24/19
ROTH 457 deferred comp PPE 2/24/19 F1000 86120 2,911.53
401a employer contributions PPE 2/24/19 F1000 86130 11,188.84 c•i
ROTH IRA employee contributions PPE F1000 86220
wC
225.00 ip2/24/19
Retirement Health Savings (Safety) PPE F1000 87004 1,698.24
2/24/19
Fleet: Unit 531 - Parts 413010 47900 1,174.24
Register of Demands:
01 -Mar -19
Warrants from 2/25/2019 3/1/2019
Check Check Payee/
Number Date Vendor # PayeeNendor Name Invoice Number
403488 01 -Mar -19 999996 MOLINA HEALTHCARE OF CALIFORNIA
403537
PW18002033
403536 01 -Mar -19 179 MORGAN'S MONOGRAMS
Refund for Service 6/12/18 503050 77550 117.02 C!
INCORPORATED 222084
403537 01 -Mar -19 175 NAPA AUTO PARTSIPOWAY 358769
240.85 E
360999
403538 01 -Mar -19 527 NINYO & MOORE 225509
47900 78.14
225508
403539 01 -Mar -19 1056 NORTH COUNTY BUICK CADILLAC GMC 181932
120.15 N
181931
403540 01 -Mar -19 437 NORTH COUNTY REBUILDERS
403541 01 -Mar -19 732 NORTH COUNTY SUPPLY
403542 01 -Mar -19 84 OFFICE DEPOT BUSINESS SERVICES
DIVISION
403543 01 -Mar -19 430 ORKIN EXTERMINATING, INC.
403489 01 -Mar -19 999996 OVERPAYMENT RECOVERY
92956
51740
274764381-001
274764381-001
274764381-001
255735205-001
277778343-001
277778343-001
277778343-001
277778343-001
277778343-001
272110853-002
277022121-001
239028655-001
247615155-001
247614074-001
278052605-001
242508713-001-2
180244557
PW17001066
Page: 5 of 11
Description Org Object Project Check Amount
Refund for Service 6/12/ 18 503050 77550 117.02 C!
ii
Uniforms 501050 49280 240.85 E
d
Fleet: Restock - Brake Pad 413010 47900 42.01
Fleet: Stock -Filters413010 47900 78.14 0
Total for Check 403537: 120.15 N
N
Washwater No. 1 Tank - Special Inspection 80005106 P5100 1,908.98
Special Inspection & Materials 80005106 P5100 1,109.48 0
Total for Check 403538: 3,018.46
Fleet: Unit 68T- Parts - Cable 413010 47900 44.55
Red Fleet: Unit 908A Handle 413010 47900 63.30
Total for Check 403539: 107.85
Fleet: Unit 506 - Alternator 413010 47900 203.65
Playground Mulch 414040 41200 4,994.21
Office Supplies 121010 47100 3.92
Office Supplies 121010 49340 57. 70
Office Supplies 122010 47100 4.30
Office Supplies 121010 14030 49.78
Office Supplies 500050 47100 8.40
Office Supplies 500050 47100 19.38
Office Supplies 501050 47100 84.97
Office Supplies 501050 47100 84.97
Office Supplies 501050 47100 84.97
PCPA Office Supplies 204020 47100 70.03
OPP Office Supplies 205020 47100 81.97
Lake Office Supplies 202020 47100 5.27
PCPA Office Supplies 204020 47100 41.20
PCPA Office Supplies 204020 47100 131.92
Office Supplies - 2nd Floor 306030 47100 69.07 N
Tax only from 242508713-001 Correction 101010 47100 1.16 p
Total for Check 403542: 799.01 I,
Pest Control: Big Stone Lodge - February 2019 309030 41200 101.12
Refund for Service 3/31/17 503050 77550 624.08
Register of Demands
Warrants from 2/25/2019 - 3/1/2019 Page: 6 of 11
Check Check Payee/
Number Date Vendor# Payee/Vendor Name Invoice Number Description Org Object Project Check Amount
403544 01 -Mar -19 190 PALOMAR HEALTH TrainingAp2019 Instructor Course for Pursley, Walsh, Landmark 503050 31040 750.00 N
403545 01 -Mar -19 194 PARKHOUSE TIRE INC 3010290952 Red Fleet Stock Tires413010 47900 631.43
403546 01 -Mar -19 195 PARKWAY BUSINESS CENTRE 410-110-CU0219 E
Amend Annual Amendment 410060 57300 1,440.84) w
410-110-CU0219
Amend Annual Amendment 414040 57300 960.56)
0
410-110-CU0219 Assessment fees 105-110 410060 57300 1,103.40 N
410-110-CU0219 Assessment fees 105 - 110 414040 57300 735.60 c
410-110-CU0319 Assessment fees 105 and 110 410060 57300 1,103.40 C
410-110-CU0319 Assessment fees 105 and 110 414040 57300 735.60
Total for Check 403546: 1,276.60
403547 01 -Mar -19 1614 PLASTICPLACE 236558 Wrhse:Supplies - Contractor Bags F1000 81350 1,034.70
403495 01 -Mar -19 999998 POST, SCOTT Post -01/19 Medic License Renewal 503050 31040 200.00
403548 01 -Mar -19 25 POWAY CENTER FOR THE PERFORMING
ARTS FOUNDATION 02182019 Poway Onstage Ticket Sales Transfer - PCPA F1000 86330 8,844.00
403549 01 -Mar -19 274 POWAY SENIOR CENTER 990 Dishwasher Leasel/16- 2/ 12/2019 208020 41200 145.35
999 Dishwasher Lease 2/13-3/12/2019 208020 41200 145.35
Total for Check 403549: 290.70
403550 01 -Mar -19 1985 PROPERTY SERVICES PLUS DEPOSIT REFUND Security Deposit Refund - 12341 Oak Knoll Rd F2900 86699 2,100.00
403551 01 -Mar -19 1058 R & B PINTO PROPERTIES LLC LKCONCO2/11-02/18 Wkly Conc Pmnt (02/11-02/18) & 12/ 18 CC F1000 86360 3,491.98
LKCONCO2111-02/18 Wkly Conc Pmnt (02/11-02/18) & 12/ 18 CC 202020 51130 461.80)
Total for Check 403551: 3,030.18
403552 01 -Mar -19 1669 RELIANT AQUARIUM DESIGN INC. 18804 Aquarium Maintenance 206020 43040 101.61
18803 Aquarium Maintenance 206020 43040 88.68
Total for Check 403552: 190.29
403553 01 -Mar -19 210 REX TROPHIES 5769 Youth fishing derby trophies 202020 47600 40.00
403490 01 -Mar -19 999996 RURAL METRO PW18002833 Refund for Service 8/ 15/18 503050 77550 149.72
403554 01 -Mar -19 221 SAN DIEGO GAS & ELECTRIC 32430844182-02/19 14022 1/2 Pomerado Road 01/09/19 - 02/07/19 414040 21010 11.01
86797737652-02/19 13250 Pomerado Road 01/09/19 - 02/ 07/19 414040 21010 10.40
70195729909-02/19 12150 1/2 Sage View Road 01/09/19 - 02/07/19 425040 21010 11.41
11183824070-02/19 16275 Espola Road 01/10/ 19 - 02/10/ 19 414040 21010 10.00
O
23194668909-02/ 19 12325 Crosthwaite Circe 01/ 10/19 - 02/10/19 410060 21010 136.93 by
82058271564-02/19 14467 Lake Poway Road 01/10/19 - 02/10/ 19 400060 21010 1,393.80
51260647432-02/19 13966 Rock Creek Road 01/10/19 - 02/10/ 19 423040 21010 10.40
93224921321-02/19 14103 112 Stowe Drive 01/10/19 - 02/10/19 426040 21010 11.61
Register of Demands:
Warrants from 2/25/2019 - 3/112019
Check Check Payee/
Number Date Vendor# PayeeNendor Name
403554 01 -Mar -19 221 SAN DIEGO GAS & ELECTRIC
Invoice Number Description Org
93262241491-02/19 12670 1/2 Pomerado Road 02/11/19 - 02/11/19 430050
15011872037-02/19 15401 1/2 Pomerado Road 01/15/19 - 02/13/19 430050
48262466316-02/19 124901/2 Old Pomerado 01/11/19 - 02/11/19 414040
71260928749-02/ 19 15003 1/2 Pomerado Road 01/14/19 - 02/12119 414040
48731411075-02/19 12900 Twin Peaks Rd. HM 01/14/19 - 02/12/19 414040
41639610229-02/19 15001 Highway 67 MP O1110/19 - 02/10/19 414040
48301450768-02/19 14283 Silver Ridge Road 01/10/19 - 02/10/19 414040
37325763074-02/19 12207 Old Pomerado Road 01/10/19 - 02/ 10/19 414040
48745089461-02/19 13100 Poway Road 01/14/19 - 02/12/19 414040
99522976016-02/19 14401 Pomerado 01/14/19-02/12/ 19 414040
93746846063-02/19 13743 1/2 Carriage Road 01/14/19 - 02/ 12/ 19 414040
89922224091-02/19 14038 Midland Road A 01/14/ 19 - 02/12/ 19 414040
26480327247-02/19 12250 Meadowbrook 01/09-02/07/19 201020
83800796106-02/19 14155 1/2 Pomerado Road 01/ 14/ 19 - 02/14/ 19 414040
82475997643-02/19 133061/2 Midland Road 01/ 14/ 19-02/12/ 19 414040
82465424856-02/19 14795 1/2 Silverset Street 01/14/ 19 - 02/ 12/ 19 414040
32089688823-02/19 13090 Civic Center 01/10-02/10/ 19 208020
71205215723-02/19 13221 Midland Road A 01/14/ 19-02/12/19 414040
64025166945-02/19 13544 Aubrey Street 01/14/19 - 02/12/19 414040
25808266178-02/19 PS1 Pumping: 1/10/ 19- 2/ 10/ 19 402060
25808256922-02/19 PWOps: 1/10/ 19-2/10/19 410060
82015538790-02/19 PS -12: Gregg St. 1/10119-2/10/19 405060
48321383007-02/19 LS -3: Camino del Valle 1/10/ 19-2/10/ 19 403070
84321647992-02/19 LS -1: Old Coach 1/10/ 19-2/10/19 403070
25816724085-02/ 19 LS -4: Highland Ranch 1/10/19-2/10119 403070
32222332511-02/19 14560 Lake Poway 01/ 10-02/10/19 202020
59971687019-02/19 14114 Midland Rd 01/14-02/12/ 19 205020
403483 26 -Feb -19 427 SAN DIEGO REGIONAL WATER QUALITY R9-2019-0072CONTROLBOARD
403556 01 -Mar -19 829 SC COMMERCIAL, LLC 0637282 -IN
0640209 -IN
0638859 -IN
Page: 7 of 11
Object Project
21020
21020
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21010
21056
21010
21058
21042
21055
21048
21010
21010
Total for Check 403554:
RGP41 permit 412040 57300
Safety Services Fuel Delivery 2-14-19 413010 31020
Fleet Fuel Delivery 2-21-19 Unleaded & Diesel 413010 31020
Fleet - Motor Oil Delivery 2-19-19 413010 47900
Total for Check 403556:
Check Amount
57.19 N
r
10.67 7k
96.44 d
r
10.06 m
11.20 0
10.00 N
N
11.20 =
27.65 Q
10.00
226.76
157.90
95.15
876.04
11.01
46.98
270.05
280.04
40.71
890.93
3,669.12
1,659.53
631.14
2,745.20
1,214.88
105.09
424.93
180.87
15,366.30
200.00 N
w
1,240.07
O0
12,039.02
1,480.76
14,759.85
Register of Demands:
Description
Warrants from 2/25/2019 3/1/2019
Check Check Payee/
Number Date Vendor# Payee/Vendor Name
403555 01 -Mar -19 568 SCRIPPS/POWAY FENCE BUILDERS
403557 01 -Mar -19 1702
403558 01 -Mar -19 299
403559 01 -Mar -19 776
403561 01 -Mar -19 469
403562 01 -Mar -19 1749
403563 01 -Mar -19 665
SOLENIS LLC
SOUNDIMAGE
SOUTH COAST EMERGENCY VEHICLE
SERVICE
STATE FIRE TRAINING
STATEWIDE STRIPES, INC
STOTZ EQUIPMENT
403493 01 -Mar -19 999991 T -MOBILE USA, INC
403494 01 -Mar -19 999998 IRAN, CHAU
403496 01 -Mar -19 999998 TRUNZO, SARA
403564 01 -Mar -19 1602 TYLER TECHNOLOGIES INC.
905034 01 -Mar -19 785 U.S. BANK N.A.
905035 01 -Mar -19 785 U.S. BANK N.A.
905036 01 -Mar -19 785 U.S. BANK N.A.
403565 01 -Mar -19 1580 UNIFIRST CORPORATION
Page: 8 of 11
Invoice Number Description Org Object Project Check Amount
0217201901 farkee Poway Storage Area: repair chainlink 414040 41200 300.00 1`
r
131383145 WPP Polymer 402060 45200 27,158.00
111 1C Custom Cover Plates 80002861 P2860 99.68
493011 Red Fleet Parts Turnlight 413010 47900 116.61 w
0
McNally -02/19 Fire Fighter II certification 501050 14010 40.00 N
2190086 -RET FY19 Citywide Street Striping Retention411040 43300 11,889.35 N
P48777 Fleet: Unit 507 - Cable, Switch & Repellent 413010 47900 59.33 Q
P48778 Fleet: Stock - Cap & Quick Lock Pin 413010 47900 33.47
Total for Check 403563: 92.80
CUP03-12 CUP03-12- Refund DDA for T -Mobile Cell Site 392030 59800 1,107.50
9PCTRAINTRAN02201
Per Diem: TPC Electrical Training 401060 14010 36.00
S.Trunzo CPEL Sara Trunzo CPEL renewal 305030 49240 116.00
045-251410 Tyler software licenses, imple 80006111 P6110 5,912.36
PARS ARS PE2019-05 PARS ARS PE#2019-05 F1000 87200 2,369.62
PARS REP PE2019-05 PARS REP PE#2019-05 F1000 87210 13,727.46
PARS REPEX PE2019-
05 PARS REP EXCESS PE#2019-05 F1000 87210 18,850.00
361 0058257 Fire Station 2 mats/towels 501050 49280 21.89
361 0068256 Fire Station 1 mats/towels 501050 49280 29.88
361 0058258 Fire Station 3 mats/towels 501050 49280 43.51
361 0058426 WPP: Mats & Uniforms 415010 41200 8.54
361 0058426 WPP: Mats & Uniforms 402060 49280 24.94
361 0058425 Water Dist. Uniforms 402560 49280 32.45
361 0058427 Utility Systems Uniforms 401060 49280 34. 25
361 0058422 Recycled Water Uniform Rental 405060 49280 5.44
361 0059064 City Hall: mats 415010 41200 17. 21
361 0059065 Meadowbrook: mats and mops 415010 41200 26.31
3610059063 Senior Center: mats 415010 41200 14.77 N
361 0058253 Senior Center: mats 415010 41200 14.77 O
361 0059068 Fire Station 3 mats/towels 501050 49280 43.51
361 0059067 Fire Station 2 matsttowels 501050 49280 21.89
361 0059066 Fire Station 1 mats/towels 501050 49280 29. 88
361 0059222 Fleet: Mats, Uniforms & Wipes 415010 41200 8.81
Register of Demands:
01 -Mar -19
Warrants from 2/25/2019 3/1/2019
Check Check Payee/
Number Date Vendor# PayeeNendor Name
403565 01 -Mar -19 1580 UNIFIRST CORPORATION
403566 01 -Mar -19 1500 UNION BANK
905026 26 -Feb -19 36 UNION BANK OF CALIFORNIA
905027 28 -Feb -19 36
905038 01 -Mar -19 36
905028 28 -Feb -19 334
905037 01 -Mar -19 334
UNION BANK OF CALIFORNIA
UNION BANK OF CALIFORNIA
UNION BANK -SAN DIEGO
UNION BANK -SAN DIEGO
403491 01 -Mar -19 999996 UNITED HEALTHCARE
403567 01 -Mar -19 253 UPS
403568 01 -Mar -19 696 USA BLUE BOOK
403569 01 -Mar -19 321 VERIZON WIRELESS
403570 01 -Mar -19 321 VERIZON WIRELESS
Page: 9 of 11
Invoice Number Description Org Object Project Check Amount
361 0059222 Fleet: Mats, Uniforms & Wipes 413010 49280 46.02 N
361 0059225 Wrhse: Mats &Uniforms415010 41200 1.22 *
361 0059225 Wrhse: Mats & Uniforms 410060 49280 5.55 aEi
Total for Check 403565: 430.84 -
of
0008-02/19 Mark Sanchez Credit Card - February 2019 504050 49370 2,716.36 p
313379RB7 Purchase Federal Home Loan Bank Maturity F1000 82120 1,000, 000.00
N
N6-11-21
313379RB7 Purchase Federal Home Loan Bank Maturity F1000 82121 14,400.00) C6-11-21
313379RB7 Purchase Federal Home Loan Bank Maturity F1000 82290 3,906.256-11-21
Total for Check 905026: 989,506.25
912828F21 Purchase US Treasury Maturity 9-30-21 F1000 82110 1,000.000.00
912828F21 Purchase US Treasury Maturity 9-30-21 F1000 82111 8,984.37)
912828F21 Purchase US Treasury Maturity 9-30-21 F1000 82290 8,815.25
Total for Check 905027: 999, 830.88
3133EKCBO Purchase Federal Farm Credit Bank Maturity F1000 82110 1,000,000.007-1-21
3133EKCBO Purchase Federal Farm Credit Bank Maturity F1000 82111 970.00) 7-1-21
Total for Check 905038: 999,030.00
PPE 2/24/19 Transfer net payroll to Union Bank PPE 2/24/19 F1000 80030 526,955.48
022819 DISC BEN Flexible Spending Register Feb 2109 F1000 80050 11,157.60
022819 DISC BEN Flexible Spending Register Feb 2109 F1000 80050 11,157.60)
022819 DISC BEN Flexible Spending Register Feb 2109 F1000 86190 11,157.60
PW17004551 Refund for Service 12/29/17 503050 77550 643.55
65V940079 Shipment to ARCO (Safety Equip) 403570 47500 35. 29
807014 WlP: Calcium Hypochlorite Granules 402060 45200 1,809.28
804302 W`rP - System PVC Parts 402060 47600 105.44
Total for Check 403568: 1,914.72
9823713049 PCPA Back-up MiFi 204020 22000 38.01 N
9823713048 Safety Services cell phones, ipads, wifi, mif 503050 22000 304.08 G
9823713048 Safety Services cell phones, ipads, wifi, mif 500050 33011 38.01
9823713048 Safety Services cell phones, ipads, wifi, miff 503050 22000 304.08
9823713048 Safety Services cell phones, ipads, wifi, miff 500050 33011 38.01
9823713048 Safety Services cell phones, ipads, wifi, mifi 500050 33011 42.98
Register of Demands:
Warrants from 2/25/2019 - 3/1/2019
Check Check Payee/
Number Date Vendor# PayeeAtendor Name
403570 01 -Mar -19 321 VERIZON WIRELESS
403571 01 -Mar -19 321 VERIZON WIRELESS
403572 01 -Mar -19 259 VILLAGE LOCK AND KEY
403481 26 -Feb -19 50 VOID
403497 01 -Mar -19 999998 WATSON, PHILLIP
403573 01 -Mar -19 272 WAXIE
Invoice Number
9823713048
9823713048
9823713048
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
9823157286
15228
16002011302R19
Watson -02119
78061796
78025708
Description Org
Safety Services cell phones, ipatls, wifi, mifi 501050
Safety Services cell phones, ipads, wifi, mifi 502050
Safety Services cell phones, ipatls, wife, miff 504050
PW Cell Phones 12/29/18 - 1/28119
PW Cell Phones 1229/18- 1/28/19
PW Cell Phones 12/29/18 - 1128/19
PW Cell Phones 12/29/18- 128/19
PW Cell Phones 12/29118 - 1128/19
PW Cell Phones 12/29/18 - 1128/19
PW Cell Phones 12/29/18 - 128/19
PW Cell Phones 1 212911 8 - 128/19
PW Cell Phones 1229/18 - 1/28/19
PW Cell Phones 1229/18 - 1/28/19
PW Cell Phones 1229/18 - 1/28119
PW Cell Phones 1229/18 - 128/19
PW Cell Phones 12/29/18 - 1128/19
PW Cell Phones 12/29/18 - 1128/19
PW Cell Phones 12/29/18 - 1128119
PW Cell Phones 12/29/18 - 128119
PW Cell Phones 12/29/18 - 1/28/19
PW Cell Phones 12129/18-1/28/19
PW Cell Phones 12/29/18 - 128119
PW Cell Phones 1229/18 - 1/28/19
PW Cell Phones 12/29/18 - 1128/19
PW Cell Phones 12/29/18 - 1128/19
PW Cell Phones 12/29/18 - 1128/19
Keys for Lake
Agreement #1600-2011-302-R5 4 Sites
Medic License Renewal
Lake Poway: sanitary supplies
Lake Poway: sanitary supplies
400060
401060
401060
402060
402060
402560
402560
403570
403570
405060
411040
411040
412040
412040
413010
414040
414040
415010
415010
430050
430050
112010
112010
Page: 10 of 11
Object Project
33011
33011
47600
Total for Check 403570:
22000
22000
33011
22000
33011
22000
33011
22000
33011
22000
22000
33011
22000
33011
33011
22000
33011
22000
33011
22000
23010
33011
22000
Total for Check 403571
202020 47600
412040 57300
503050 31040
415010 47200
415010 41200
Check Amount
5.76 N
r
42. 98 4t
38.55 d
V
814.45 -
Oi
38.01 p
N
114.03 Ci
0.74 = 0-
76.02 Q
6.18
266.07
11.76
152.04
1.74
38.01
76. 02
0.54
114.03
1.46
2.98
76.02
43.07
76.02
11.91
38.01
38.01
165.15
76.02
1,423.84
a
152.84 w
O
0.00 N
200.00
1,986.09
113.57
Register of Demands:
Warrants from 2/25/2019 3/1/2019
Check Check Payee/
Number Date Vendor # Payee/Vendor Name Invoice Number Description
403573 01 -Mar -19 272 WAXIE 78024127 Lake Poway: sanitary supplies
403574 01 -Mar -19 280 WESTERN MOWER AND ENGINE 62207 Fleet: Unit SE402 - Fuel Meter & Syringe
403498 01 -Mar -19 999998 WHITE, THOMAS WhiteThomas02-16-19 New cell phone reimbursement
403575 01 -Mar -19 1980 WOMEN IN LEISURE SERVICES (WILS) 02282019 Lunch and Learn for six Staff Members
403576 01 -Mar -19 1573 ZORO TOOLS, INC. INV5593800 Wrhse: Supplies - Disinfecting Wipes
Director of Finance Approved
r
Date:
Page: 11 of 11
Org Object Project Check Amount
415010 47200 $526.52 N
Total for Check 403573: $2,626.18 #
413010 47900 $59.65 y
V
402060 33011 $200.00
200020 14010 $120.00 p
N
F1000 81350 $107.79 cl
Register Total: $3,789, 734.08
QQ
The City of Poway Director of Finance Submits the Following Register of Demands
3i F,> for the period 3/4/2019 - 3/8/2019 and Recommends its Ratification/Approval:
Run Date: 14-Mar-19
N
Check Check Payee/
Number Date Vendor # Payee/Vendor Name Invoice Number Description Org Object Project Check Amount
403590 07-Mar-19 506 AO REED & CO 303810 City Hall: chiller and air handler 415010 43020 644.21 2
304135 Plumbing and Repair Service 415010 41200 318.50 cr
93594 Monthly Lift Station Service -February 415010 41200
r
206.00 N
304273 Porter House: heat repair 415010 43020 326.58 N
Total for Check 403590: 1,495.29 'Q
403591 07-Mar-19 1779 ACE ELECTRIC, INC 2190121-PP3 Electrical Upgrades Project 80006172 P6170 11,362.29 Q
403592 07-Mar-19 1890 ACRO SALES CO. 21628 Gas Detector (BW) Repair 403570 47500 75. 00
403593 07-Mar-19 883 ADVANCED WEB OFFSET, INC. 19-0531 Poway Progress Printing 205020 49220 317.00
403594 07-Mar-19 815 AFLAC 404425 Insurance Premiums: February 2019 F1000 86140 442.22
403595 07-Mar-19 6 AGRICULTURAL PEST CONTROL 483558 Parks: Pest control 414040 41200 855.00
403596 07-Mar-19 1428 AIRGAS USA, LLC 9085603740 Pool Carbon Dioxide 203020 45200 174.51
403587 07-Mar-19 999997 AMERICAN ASPHALT SOUTH INC 49903600-50 Closing Bal Refund: Deposit #49903600-50 F5100 86620 1,200.00
49903600-50 Closing Bal Refund: Deposit #49903600-50 F5100 81020 591.44) m
Total for Check 403587: 608.56 Z
403597 07-Mar-19 705 AMERICAN ASPHALT SOUTH, INC 2190087-RET FY19 Street Maintenance Project Retention 411040 43205 30,083.27 W
2190087-RET FY19 Street Maintenance Project Retention F1000 81060 26,009.43 V
Total for Check 403597: 56,092.70 F
403598 07-Mar-19 835 AT&T 12650254 BAN 939105036601/20/19-02/19/ 19 430050 23010 1,048.87 Q
12619726 BAN 9391051979 -PCPA Network- 1/13/19-
114010 22000 424.462/12/19
12656416 BAN 93910265631/24/19- 2/23/19 410060 33010 77. 94
12619724 BAN 9391051972 -PW Network- 1/13/ 19- 114010 22000 607.20
2/12/19
12619728 BAN 9391051982 Network & CaINet3 1/13/19-
114010 22000 1,273.382/12/19
12619728 BAN 9391051982 Network & CaINet3 1/13/19-
114010 33010 1,312.502/12/ 19
12656423 BAN 9391026571 Lake 01/24-02/23/19 202020 33010 20.72
Total for Check 403598: 4,765.07 ,N
O
403599 07-Mar-19 1522 AUDIO ASSOCIATES OF SAN DIEGO 21800242-5 Council Chambers AV Renovation 80002861 P2860 23,618.18 a
403600 07-Mar-19 986 BAKER'S CONCRETE CUTTING INC. 59406 Leak Danielson Street 10" Leak 402560 41200
r
370.00
403682 07-Mar-19 1169 BARBOSA, ANDREW 2004.300.19 Instructor Payment Winter 2018-19 208020 41300 216.00
403601 07-Mar-19 453 BAY CITY EQUIPMENT INDUSTRIES, INC W203259 Generator Maintenance Unit 755 402060 41200 893.00
Register of Demands:
Warrants from 3/4/2019 - 3/8/2019 Page: 2 of 11
Check Check Payee/
Number Date Vendor # Payee/Vendor Name Invoice Number Description Org Object Project Check Amount
403601 07 -Mar -19 453 BAY CITY EQUIPMENT INDUSTRIES, INC W203933 Generator Maintenance Unit 741 413010 41200 140.00 N
W204194 Generator Maintenance PW Admin. 413010 41200 323.64
Total for Check 403601: 1,356.64 N
403579 07 -Mar -19 999991 BBA PARTNERS, LLC 8646 - Refund DDA for Valley View Rd BA05- 8646 - BA05-07
07 392030 59800 500.00 01
403602 07 -Mar -19 1574 BEST PLUMBING SPECIALTIES, INC. 5853777 Wrhse: Push Button Valves F1000 81350 1,100.24 N
403588 07 -Mar -19 999997 BLUE PACIFIC ENGINEERING & 49904000-28 Closing Bal Refund: Deposit #49904000-28 F5100 86620 1,200.00 O
CONSTRUCTION
49904000-28 Closing Bal Refund: Deposit #49904000-28 F5100 81020 220.52) 8L
Total for Check 403588: 979.48 Q
403603 07 -Mar -19 717 CALIFORNIA COMMERCIAL ASPHALT 212972 2.5 Tons of asphalt 411040 45900 153.54
ENTERPRISES, LLC
213032 3.48 Tons of asphalt 411040 45900 230.37
212914 Stockpile 3/8" Cold Mix 402560 47600 619.56
Total for Check 403603: 1,003.47
403604 07 -Mar -19 48 CALIFORNIA TEAMSTERS LOCAL 911 DUES MARCH 2019 Teamster's dues for March 2019 F1000 86110 1,683.00
403605 07 -Mar -19 55 CALOLYMPIC SAFETY 376366-1 10) Sweatshirts and (10) Vests F1000 81350 462.00
403606 07 -Mar -19 532 CANNON PACIFIC SERVICES, INC 149436 Street Sweeping 411040 43320 480.00
403607 07 -Mar -19 1852 CED - SAN DIEGO 7148-557580 LED bulbs - Shop supplies 415010 47600 435.31
7148-557579 Street lighting bulbs 430050 43270 16,606.43
7148-557637 Street Lighting bulbs 430050 43270 12,432.20
7148-557637 Street Lighting bulbs 415010 47600 11,475.37
Total for Check 403607: 40,949.31
403608 07 -Mar -19 558 CHRISTOPHIADES, ARTHUR 2000.300-05.19 Instructor Payment Winter 2018-19 208020 41300 1,219.20
403609 07 -Mar -19 1508 CIGNA HEALTHCARE OF CALIFORNIA 2434109 Health Insurance Premiums: March 2019 F1000 87320 205,088.72
2434109 Health Insurance Premiums: March 2019 F1000 87311 9,330.32
Total for Check 403609: 214,419.04
403610 07 -Mar -19 1948 CJI PROCESS SYSTEMS, INC.
11487 Maintenance of Process Equipment - Chemical 402060 41200 4,151.73Tank
403611 07 -Mar -19 1694 COASTAL APPLIANCE 397598 Fire Department #2: refrigerator diagnosis 415010 41200 60.00
403612 07 -Mar -19 1094 COMMERCIAL AQUATIC SERVICES 119-0602 Pool Chlorine 203020 45200 985.02
403613 07 -Mar -19 329 COUNTY OF SAN DIEGO DEH
Permit UPFP 3/19-3/20 PS -15 Heights 402060 57300
Nd,
469.00 G00
93315-
HUPFP-
403614 07 -Mar -19 94 COX COMMUNICATIONS 128803201-0119 Kumeyaay Internet (01/01- 01/ 31/19) 207020 33010 161.96 U)
403615 07 -Mar -19 94 COX COMMUNICATIONS 62872701 3/19 Cable TV / Internet Group Bill: March 2019 114010 22000 510.51
403616 07 -Mar -19 624 CRAFCO INC. 9401993856 Crack Seal 411040 43201 5,842.75
Register of Demands
Warrants from 3/4/2019 3/8/2019 Page: 3 of 11
Check Check Payee/
Number Dale Vendor # PayeeNendor Name Invoice Number Description Org Object Project Check Amount
403616 07 -Mar -19 624 CRAFCO INC. 9401993857 Crack Seal 411040 43201 226.28 N
Total for Check 403616: 6,069.03
403617 07 -Mar -19 108 CULLIGAN WATER CONDITIONING 1125803 Softener Service for NH3 System 402060 41200 y280.00
91048493 Water Softener Salt 402060 45200 422.38
Total for Check 403617: 702.38 c
403618 07 -Mar -19 43 D & D SERVICES INC. 49600 FY19 Dead Animal Removal 301030 41200
N
2,120.00 N
403619 07 -Mar -19 1526 DELTA DENTAL INSURANCE COMPANY BE003259101 Insurance Premiums: March 2019 F1000 87361 822.35 .` CIL
BE003259101 Insurance Premiums: March 2019 F1000 87362 41.32 Q
Total for Check 403619: 863.67
403620 07 -Mar -19 1525 DELTA DENTAL OF CALIFORNIA BE003257548 Insurance Premiums: March 2019 F1000 87361 17,139.96
BE003257548 Insurance Premiums: March 2019 F1000 87362 251.60
Total for Check 403620: 17,391.56
403621 07 -Mar -19 1684 DEPARTMENT OF CONSUMER AFFAIRS-
ENG. 83315 - Banzuelo Prof Engineer License - B. Banzuelo9 304030 49240 115.00
905041 04 -Mar -19 942 DEPT. OF CHILD SUPPORT SERVICES CLD WH PE2019-05 Payroll Garnishment F1000 86150 2,079.67
403622 07 -Mar -19 1493 DISCOVERY BENEFITS INC. 0000973464 -IN Cobra & FSA Monthly: January 2019 F1000 87399 462.00
403623 07 -Mar -19 714 EAST COUNTY ALIGNMENT 169182 Unit 71 Front Alignment 413010 43120 125.00
403624 07 -Mar -19 1943 ECS IMAGING INC 13864 35mm film conversion;consult fee;upload fee 101010 41200 1,136.00
403625 07 -Mar -19 1899 ELECTRICAL SALES, INC 028968 02 Batteries, UPS Replacement 402060 47600 122.84
905040 04 -Mar -19 97 EMPLOYMENT DEVELOPMENT
DEPARTMENT CAL WH PE201 M5 CAL W/H EFT PE#2019-05 F1000 86170 25,899.75
403626 07 -Mar -19 740 ENNISS INC. 142186 Dump Fees for concrete 411040 29050 85.66
403627 07 -Mar -19 101 ESGIL CORPORATION February 2019 Building Services for February 2019 303030 17050 35.301.36
February 2019 Building Services for February 2019 303030 17051 5,271.89
Total for Check 403627: 40,573.25
403628 07 -Mar -19 116 FERGUSON WATERWORKS 0664876 Piping, Coupling, Clay, PVC F5200 81350 116.24
403584 07 -Mar -19 999995 FLORES, JUANA 2013220.001 Permit 21036 Deposit Refund 208020 74710 282.00
403629 07 -Mar -19 1380 FLYERS ENERGY LLC CFS -1836729 Safety Services Fuel 1-29-19 to 2-13- 19 413010 31020 854.18
403630 07 -Mar -19 1706 FRANCHISE TAX BOARD PPE 2/24/19 Payroll Garnishment F1000 86150 100.00 a
403631 07 -Mar -19 957 GARDA CL WEST INC. 20354751 Armored Car Service: Excess Items Jan 2019 114010 41200 312.64 w
O
10461675 Armored Car Service: Feb 2019 114010 41200 575.87 ip
Total for Check 403631:
r
888.51
403577 07 -Mar -19 999996 GIBSON JR, ROBERT PW17004226 Refund for Service 12/6/17 503050 77550 100.00
Register of Demands:
07 -Mar -19
Warrants from 3/4/2019 - 3/8/2019
Check Check Payee/
Number Date Vendor# PayeeNendor Name
403632 07 -Mar -19 816 GOLDFARB & LIPMAN LLP
403633 07 -Mar -19 573 GOVCONNECTION, INC.
403634 07 -Mar -19 120 GRAINGER INC
Invoice Number
130207
130208
130272
56529148
9092589531
9087181070
9091629122
9095058930
9100729566
9088920658
403635 07 -Mar -19 483 HANSON AGGREGATES PACIFIC
Housing As -Needed Legal Services - January 309030 17011 513.00 N
SOUTHWEST, INC 1980430
403636 07 -Mar -19 480 HARPER & ASSOCIATES ENGINEERING
P2900 2,643.00 £
Housing As -Needed Legal Services - Sept
INC ENG -6470
403637 07 -Mar -19 142 HEAVILAND ENTERPRISES INC 23533
of
219
403638 07 -Mar -19 152 HOME DEPOT COMMERCIAL ACCOUNT 9223572
N
Duplex Cable 113010 47600
1210922
Clearwell Cover Sump Pump 402060 47600 370.68
1210923
CL
Dock Supplies
7210932
47600 97.79 Q
Reagents, Sodium Persulfate for WTP 402060
1210921
403639 07 -Mar -19 698 HORIZON 2F152482
403640 07 -Mar -19 1981 HYDRO FLOW PRODUCTS, INC 40417
403641 07 -Mar -19 644 INFOSEND 149658
149658
Page: 4 of 11
Description Org Object Project Check Amount
Housing As -Needed Legal Services - January 309030 17011 513.00 N2019
Housing As -Needed Legal Services - January
r
2019 80002903 P2900 2,643.00 £
Housing As -Needed Legal Services - Sept
d
2018 309030 17011 1,635.00 of
Total for Check 403632: 4,791.00 p
N
Duplex Cable 113010 47600 15.44 tj
Clearwell Cover Sump Pump 402060 47600 370.68 CL
Dock Supplies 202020 47600 97.79 Q
Reagents, Sodium Persulfate for WTP 402060 47600 138.17
PVC Parts - Tee and Reducer Bushing 402060 47600 46.06
Wrhse: (20) Plastic Inside Covers F1000 81350 85.34
Dock Supplies 202020 47600 5.17
Total for Check 403634: 743.21
Yard Material 402560 47600 585.94
Warranty Inspection Services 80005106 P5100 2,800.00
Ted Williams Grove 414040 41600 7,375.00
Credit to Invoice 23533 414040 41600 675.00)
Total for Check 403637: 6,700.00
Unit 4 Stock & New Employee Keys 403570 47600 85.09
Drain Cleaning Machine 415010 47600 355.46
Shop Supplies 415010 47600 80.51
Work Order 216033 repair supplies 415010 47600 13.96
Autofeed drain cleaning machine 415010 47600 350.00
Total for Check 403638: 885.02
Herbicide 414040 47700 366.35
DM Dechlor Unit Repair 402560 47600 244.50
Total for Check 403640: 244.50
N
Mailing Statements 2-6-19 to 2-18- 19 112010 33020 1,214.20 O
Mailing Statements 2£-19 to 2-18- 19 112010 41200 699.99
Total for Check 403641: 1,914.19
403585 07 -Mar -19 999999 INNOVATIVE INVESTMENT STRATEGIES,
INC. BC -003831 REFUND Refund: Business Certificate #BC -003831 112010 72130 $20.00
Register of Demands
Warrants from 3/4/2019 - 3/8/2019 Page: 5 of 11
Check Check Payee/
Number Date Vendor# Payee/Vendor Name Invoice Number Description Org Object Project Check Amount
403585 07 -Mar -19 999999 INNOVATIVE INVESTMENT STRATEGIES, BC -003831 REFUND Refund: Business Certificate #BC -003831 30102833 79999 4.00 N
INC.
Total for Check 403585: 24.00
403642 07 -Mar -19 750 JCI JONES CHEMICALS, INC. 782339 Chlorine Gas for WTP 402060 45200 y2,550.00
403643 07 -Mar -19 750 JCI JONES CHEMICALS, INC. 780376 FY19 Supply of Water Treatment 402060 45200 9,214.40
403644 07 -Mar -19 703 JENAL ENGINEERING CORP. 19-765 Fuel Monitor System Thermal Paper 413010 47600
of
112.87 0
403645 07 -Mar -19 129 JRC PRINTING LLC 38878 Lake Flyers Printing 202020 49220
N
51.72 Ci
38901 Lake Flyers 202020 49220 51.72 y
Total for Check 403645: 103.44 Q
403646 07 -Mar -19 1544 JUST 4 FUN POWERSPORTS 5-2 Flat Bottom Jon Boats 115010 61260 11,160.00
Total for Check 403646: 11,160.00
403647 07 -Mar -19 133 KAISER FOUNDATION HEALTH PLAN INC 000104676-0000 03/19 Insurance Premiums: March 2019 1000 87310 73,802.40
000104676-0000 03/19 Insurance Premiums: March 2019 F1000 87311 3,398.28
Total for Check 403647: 77,200.68
403648 07 -Mar -19 134 KAISER FOUNDATION HEALTH PLAN INC
COBRA) 000104676-7000 03/19 Insurance Premiums: March 2019 (COBRA) F1000 87311 521.87
403649 07 -Mar -19 421 KEYSER MARSTON ASSOCIATES INC 0033124 Professional Services: Jan 1 - Jan 31, 2019 105080 17999 3,959.60
403650 07 -Mar -19 597 KIMBALL -MIDWEST Warehouse: (24) Advanced Formula6957974
Penetrating Oil F1000 81350 232.48
403651 07 -Mar -19 502 KIMLEY-HORN AND ASSOCIATES, INC FY19 ASNeeded DSD Traffic Eng -January13145476
2018 307040 17150 8,901.97
403652 07 -Mar -19 502 KIMLEY-HORN AND ASSOCIATES, INC FY19 As -Needed DSD Traffic Eng - December12942257
2018 307040 17150 5,406.80
403653 07 -Mar -19 139 LEADER INDUSTRIES 90187678-2 Invoice Short Paid - Remit Balance 413010 47900 40.00
403654 07 -Mar -19 490 LINCOLN AQUATICS 76701515 Pool Test Equipment 203020 47600 35.68
76701516 Pool Test Equipment 203020 47600 38.56
Total for Check 403654: 74.24
403655 07 -Mar -19 933 MAIL DISPATCH 174177 Mail Courier Service: Feb 2019 114010 41200 1,253.56
403656 07 -Mar -19 872 MATHESON TRI -GAS, INC. 19182071 Meter Raise, General Atomics 402560 47600 31.00
403589 07 -Mar -19 999997 MCKAY FAMILY TRUST 20710318-23 Closing Bal Refund: Deposit #20710318-23 F5100 86620 740.00
20710318-23 Closing Bal Refund: Deposit #20710318-23 F5100 81020 104.86)
Total for Check 403589: 635.14 N
403578 07 -Mar -19 999992 MD7 LLC 001 -Refund for Major Mod to Minor
wO
CUP19-001 -Refund 301030 77310 1,623.00 00
Mod ReModRev 1
403657 07 -Mar -19 1364 MICHAEL BAKER INTERNATIONAL INC. 1040631 Plan Checks - January 2019 391030 59100 3,648.00
1040631 Plan Checks - January 2019 391030 59400 975.00
Register of Demands:
Warrants from 3/4/2019 - 3/8/2019 Page: 6 of 11
Check Check Payee/
Number Date Vendor # PayeeNendor Name Invoice Number Description Org Object Project Check Amount
403657 07 -Mar -19 1364 MICHAEL BAKER INTERNATIONAL INC. 1040631 Plan Checks - January 2019 305030 41220 660.00 N
Total for Check 403657: 5,283.00
403580 07 -Mar -19 999998 MOYLAN, THOMAS Moylan Per Diem TPC TPC Training 3-20-19 to 3-21-19 401060 31040 y36.00
403658 07 -Mar -19 1506 MUTUAL OF OMAHA POLICYHOLDER
000879057233 oI Life/LTD/STD Prem: Mar. Basic19SERVICES
Life/
AD&DN
F1000 86210 3,938.39 of
000879057233 Basic Life/AD&DNoI Life/LTD/STD Prem: Mar. F1000 87330
r
2,936.31 N2019
000879057233 Life/AD&DNoI Life/LTD/STD Prem: Mar. Basic019 F1000 87350
N
L6,293.75
a
000879057233 Basic Life/AD&DNoI Life(LTD/STD Prem: Mar. F1000 87351 1,936.61 Q2019
Total for Check 403658: 15,105.06
403659 07 -Mar -19 84 OFFICE DEPOT BUSINESS SERVICES 267643762-001 Office Supplies 121010 47100 5.16)
DIVISION
277021848-001 OPP Office Supplies 205020 47100 59.06
279782346-001 Office Supplies 401060 47100 64.95
280403849-001 Office Supplies - 2nd Floor 305030 47100 8.99
279238608-001 Lake Office Supplies 202020 47100 56.86
281322875-001 Office Supplies 103010 47100 61.88
281485101-001 Office Supplies DSD 1st floor 301030 47100 78. 88
281485101-001 Office Supplies DSD 1st floor 303030 47100 5.81
281485101-001 Office Supplies DSD 1st floor 305030 47100 68.56
256962815-001 Office Supplies 112010 47100 41.39)
Total for Check 403659: 358.44
403660 07 -Mar -19 17 OTIS ELEVATOR COMPANY SD19543002 PCPA elevator service 415010 43060 1,696.50
403661 07 -Mar -19 189 PALOMAR MEDICAL CENTER INV 0219 ACLS Provider Cards 503050 31040 500.00
403662 07 -Mar -19 194 PARKHOUSE TIRE INC 3010290817 Fleet - Stock - Tires 413010 47900 1,014.96
403663 07 -Mar -19 747 PLUMBERS DEPOT INC. PD -40981 Vector Parts, Nozzle Extensions 403570 47600 474.10
403664 07 -Mar -19 25 POWAY CENTER FOR THE PERFORMING 01282019 Poway OnStage Ticket Sales Transfer- PCPA F1000 86330 7,281.00
ARTS FOUNDATION
02252019 Poway Onstage Ticket Transfer - PCPA F1000 86330 4,787.00
03032019 Poway Onstage Ticket Sales Transfer - PCPA F1000 86330 4,410.00
Total for Check 403664: 16,478.00 N
403665 07 -Mar -19 265 POWAY FIREFIGHTERS ASSOCIATIONCDUESPPE2/24/19 Fire Association dues for PPE 2/24/19 F1000 86100 2,316.00
403666 07 -Mar -19 510 POWAY HIGH SCHOOLIDRAMA 1238 PCPA Final Event Report 2/9/19 F1000 86350
am
19,687.00
DEPARTMENT
1238 PCPA Final Event Report 2/ 9/19 204020 76320 2,432.00)
1238 PCPA Final Event Report 2/ 9/ 19 204020 76230 42.50)
Register of Demands:
Warrants from 3/4/2019 3/ 8/2019 Page: 7 of 11
Check Check Payee/
Number Date Vendor # PayeeNendor Name Invoice Number Description Org Object Project Check Amount
403666 07 -Mar -19 510 POWAY HIGH SCHOOL/DRAMA 1238 PCPA Final Event Report 2/9/19 204020 74760 125.00) N
DEPARTMENT
Total for Check 403666: 17,087.50
403667 07 -Mar -19 274 POWAY SENIOR CENTER 1001 Phone/cable reimbursement 2/15/19 - 3/14/19 114010 33010 250.00 y
V
1001 Phone/cable reimbursement 2/15/19 - 3/14/19 114010 22000 98.79 m
Total for Check 403667: 348.79 c
403668 07 -Mar -19 273 POWAY UNIFIED SCHOOL DISTRICT
FY19 OTR2 FINES 70°k Share Net PHS Parking Fines:Oct-Dec
N
2018 504050 73100 1,536.15 N
403586 07 -Mar -19 999999 PREMIER FIRE PROTECTION PremierFireRefund Plan Check/Inspection Refund O- 502050 77530 265.00
PremierFireRefund Plan Check/Inspection Refund 502050 77530 225.00 Q
Total for Check 403586: 490.00
403669 07 -Mar -19 653 PSOMAS, INC 148819 Design Consultant - Martincoit Sewer Upsize 80004200 P0000 39,737.24
403670 07 -Mar -19 1058 R & B PINTO PROPERTIES LLC LKCONCO2119-02/25 Wkly Conc Pmm (02/19-02/25/19) F1000 86360 2,791.17
403671 07 -Mar -19 1217 ROGERS, ANDERSON, MALODY & SCOTT. 59937 FY 2017-18 Auditing Services - Final 110010 17030 13,100.00LLP
59937 FY 2017-18 Auditing Services - Final 309030 17030 2,200.00
Total for Check 403671: 15,300.00
403672 07 -Mar -19 230 RUTAN AND TUCKER 831165 012782-0023 Professional Svc through 1/31/19 102010 17020 21,303.89
403673 07 -Mar -19 213 SAN DIEGO COUNTY SHERIFF'S
DEPARTMENT JAN2019 Law Enforcement Services 504050 41030 1,035,843.67
403677 07 -Mar -19 221 SAN DIEGO GAS & ELECTRIC 96907731131-02/19 18775 1/2 Heritage Dr 1/10/19-2/ 10/19 403070 21060 103.68
82081137485-12/18 PCPA Electric 11/8/ 18- 12/10/18 204020 21010 3,774.30
82081137485-01/19 PCPA Electric 12/10/ 18-01/10/19 204020 21010 4,205.63
82081137485-02/19 PCPA Electric 01/10-02/10/19 204020 21010 3,928.52
Total for Check 403677: 12,012.13
403674 07 -Mar -19 218 SAN DIEGO GAS & ELECTRIC/SUNDRY 04920133400-02/19 WTP & Pump Stations 1/10/ 19-2/10/19 402060 21010 603.19
04920133400-02/19 WiP & Pump Stations 1/10/ 19-2/10/19 402060 21041 3,377.28
04920133400-02/19 WTP & Pump Stations 1/10/ 19-2/10/19 402060 21043 698.07
04920133400-02/19 WTP & Pump Stations 1/10/19-2/10/19 402060 21049 1,359.66
04920133400-02/19 WTP & Pump Stations 1/10/19-2/10/ 19 402060 21050 614.86
04920133400-02/19 WTP & Pump Stations 1/10/19-2/10/19 402060 21051 6,530.81
04920133400-02/19 WTP & Pump Stations 1/10/19-2/10/19 402060 21052
d,
2,634.70 w
O
04920133400-02/19 WTP & Pump Stations 1/10/19-2/10/19 402060 21054 2,208.22 pN
04920133400-02/19 WfP & Pump Stations 1/10/ 19-2/10/19 402060 21057 373.17
04920133400-02/19 WTP & Pump Stations 1/10/19-2/10/19 402060 21059 470.11
04920133400-02/19 WTP & Pump Stations 1/10/19-2/10/19 402060 21061 1,436.58
Register of Demands
Warrants from 3/4/2019 - 3/8/2019 Page: 8 of 11
Check Check Payee/
Number Date Vendor* PayeeNendor Name Invoice Number Description Org Object Project Check Amount
403674 07 -Mar -19 218 SAN DIEGO GAS & ELECTRIC/SUNDRY 04944440039-02/19 Group Bill Cycle 14 0221/19 421040 21010 66.91 N
04944440039-02/19 Group Bill Cycle 14 0221/19 423040 21010 43.82 #
04944440039-02119 Group Bill Cycle 14 02/21/ 19 424040 21010 22.81 d
04944440039-02/19 Group Bill Cycle 14 02/21/ 19 425040 21010 32.42 - m
04944440039-02/19 Group Bill Cycle 14 02/21/ 19 426040 21010 98.25 c
04944440039-02119 Group Bill Cycle 14 02/21/ 19 424140 21010 22.21 N
N
04944440039-02/19 Group Bill Cycle 14 02/21/ 19 425140 21010 22.21
04944440039-02/19 Group Bill Cycle 14 02/21/ 19 421240 21010 10.80 Q
04944440039-02/19 Group Bill Cycle 14 02/21/ 19 430050 21020 1,227.20
Total for Check 403674: 21,853.28
403675 07 -Mar -19 218 SAN DIEGO GAS & ELECTRIC/SUNDRY 36194890059-02/19 Group Sundry Bill: Feb 2019 208020 21010 7,112.34
36194890059-02/19 Group Sundry Bill: Feb 2019 203020 21010 7,768.26
36194890059-02/19 Group Sundry Bill: Feb 2019 204020 21010 898.79
36194890059-02119 Group Sundry Bill: Feb 2019 205020 21010 336.02
36194890059-02/19 Group Sundry Bill: Feb 2019 413010 21010 941.99
36194890059-02/19 Group Sundry Bill: Feb 2019 402560 21010 12. 14
36194890059-02/19 Group Sundry Bill: Feb 2019 414040 21010 358.48
36194890059-02/19 Group Sundry Bill: Feb 2019 421040 21010 57.22
36194890059-02/19 Group Sundry Bill: Feb 2019 423040 21010 82.28
36194890059-02/19 Group Sundry Bill: Feb 2019 424040 21010 10.94
36194890059-02/19 Group Sundry Bill: Feb 2019 426040 21010 75.47
36194890059-02/19 Group Sundry Bill: Feb 2019 430050 21020 2,308.85
Total for Check 403675: 19,962.78
403676 07 -Mar -19 218 SAN DIEGO GAS & ELECTRIC/SUNDRY 31507776772-02/19 Group Sundry Bill: Feb 2019 205020 21010 318.58
31507776772-02/19 Group Sundry Bill: Feb 2019 414040 21010 25.06
31507776772-02/19 Group Sundry Bill: Feb 2019 430050 21020 2,015.07
31507776772-02/19 Group Sundry Bill: Feb 2019 430050 21030 27,980.65
Total for Check 403676: 30,339.36
403678 07 -Mar -19 201 SAN DIEGO HUMANE SOCIETY AND N
SPCA 03 -01 - 19 -ACP March 2019 Animal Control Services 200020 41010 20,062.96 O
403679 07 -Mar -19 754 SANDLER BROS. 0214209 -IN Wrhse: Knit Rags 10 lb F1000 81350 627.91 N
403685 07 -Mar -19 829 SC COMMERCIAL, LLC 0642388 -IN Safety Services Fuel Delivery 2/28/19 500 gal 413010 31020 1,851.10
403581 07 -Mar -19 999998 SCHMID, BENJAMIN PC LOAN 2019 PC loan for MacBook Pro 13" F1000 81050 1,500.00
Register of Demands
Warrants from 3/4/2019 - 3/8/2019 Page: 9 of 11
Check Check Payee/
Number Date Vendor# PayeeNendor Name Invoice Number Description Ong Object Project Check Amount
403582 07 -Mar -19 999998 SCHROEDER, DAVID
5-290 Tuition Reimbursement: Intermediate Fire
121010 14040 N
Behavior 125.00
403680 07 -Mar -19 568 SCRIPPS/POWAY FENCE BUILDERS 0226201902 Lake Poway Road: install posts and rails 414040 41200
r
975.00 £
403681 07 -Mar -19 508 SCS ENGINEERS 0341519 PSM / RMP / Cal ARP Program 402060 41200 1,200.00 w
403683 07 -Mar -19 645 SO CAL SIGNS, INC. 6457 Name Plate: Tom Frank 305030 49220 33.24 47
403684 07 -Mar -19 739 SOCAL STMA 2019 STMA Omon, Matias, Riello, Hahn 414040 49240 110.00 N
403686 07 -Mar -19 776 SOUTH COAST EMERGENCY VEHICLE
SERVICE 493084 Red Fleet Stock 413010 47900 74.85 N
403687 07 -Mar -19 301 SPARTAN TOOL LLC 599173 CCN Equipment Repair & Maintenance 403570 43080 279.94 Q40368807 -Mar -19 528 STATEWIDE SAFETY & SIGNS, INC 01004790 OPP Signs 205020 45300 142.23
403689 07 -Mar -19 1973 STC TRAFFIC, INC 3262 Turning Movement Analysis 307040 17150 2,920.00
403690 07 -Mar -19 665 STOTZ EQUIPMENT P48881 Unit 595A Parts Hy -Gard TM 413010 47900 80.15
403691 07 -Mar -19 312 SUPERIOR READY MIX 22905 14500 Maplewood Drive 9. 5 CY Concrete 411040 43240 1,260.19
403693 07 -Mar -19 1990 TELVUE CORPORATION 12836 TelVue Care Support Coverage 80002861 P2860 2,235.00
403694 07 -Mar -19 279 THOMSON REUTERS - WEST 839656335 Publications - Monthly fee 502050 49240 463.54
403692 07 -Mar -19 1041 T -MAN TRAFFIC SUPPLY 9051 Marking Tape Blue F1000 81350 227.57
403695 07 -Mar -19 977 TOSHIBA BUSINESS SOLUTIONS 15195197 Copier 1/25/19 - 2/24/19 114010 43080 1,452.89
403583 07 -Mar -19 999998 TRAN, CHAU Tran Per Diem TPC TPC Training 3-20-19 to 3-21-19 401060 31040 36. 00
403696 07 -Mar -19 1696 TRANSUNION RISK AND ALTERNATIVE
DATA SOLUTIONS INC 3081831-03/19 Data Services - Sheriff 504050 41200 180.00
905039 04 -Mar -19 941 U.S. DEPT. OF THE TREASURY FED WH PE2019-05 FED W/H EFT PE#2019-05 F1000 86160 69,075.81
FED WH PE2019-05 FED W/H EFT PE#2019-05 F1000 86180 20,776.44
Total for Check 905039: $89,852.25
403697 07 -Mar -19 1580 UNIFIRST CORPORATION 361 0058423 Uniforms Rental Fee 403570 49280 30.61
361 0059227 Uniform Weekly Rental Fee 403570 49280 32.01
361 0059229 Uniform Weekly Rental Fee 1 New Employee 402560 49280 56.63
361 0059230 Uniform & Mats Weekly Rental 415010 41200 8.54
361 0059230 Uniform & Mats Weekly Rental 402060 49280 24.94
361 0059231 Uniform Weekly Rental (1 Damaged Shirt & 401060 49280 44.88
Pants)
361 0059226 Weekly Uniform Rental Fee 405060 49280 5.44 N
361 0054260 Customer Services: Uniforms 112010 49280 8.04 O
361 0056630 Customer Services: Uniforms 112010 49280 8.04 N
361 0055834 Customer Services: Uniforms 112010 49280 8.04
3610059223 Stormwater: uniforms 412040 49280 14.44
361 0059228 Facilities: uniforms 415010 49280 9.18
Register of Demands:
Warrants from 3/4/2019 - 3/8/2019 Page: 10 of 11
Check Check Payee/
Number Date Vendor# Payee/Vendor Name Invoice Number Description Org Object Project Check Amount
403697 07 -Mar -19 1580 UNIFIRST CORPORATION 3610059232 Parks: uniforms 414040 49280 26.88 N
36100592351:
Lake: boat dock mats 415010 41200 9.89 *
361 0059234 Twin Peaks: mats and mops 415010 41200 11.37 d
361 0059233 Public Works: mats 415010 41200 6.45 = m
361 0059069 Community Center: mats, South Parks: 415010 41200 49.75 0uniformsN
361 0059069 Community Center: mats, South Parks: 414040 49280 17.68 N
uniforms
361 0059224 Streeft: uniforms 411040 49280 139.26 Q
361 0049394 Senior Center: mats 415010 41200 14.77
361 0059900 Community Center mats and South Parks 415010 41200 47. 95
uniforms
361 0059900 Community Center mats and South Parks 414040 49280 19.48uniforms
361 0060064 Uniforms Weekly Rental 401060 49280 34.25
361 0060062 Uniforms Weekly Rental Fee 402560 49280 37.07
361 0060063 Uniforms & Mats Weekly Rental 415010 41200 8.54
361 0060063 Uniforms & Mats Weekly Rental 402060 49280 24.94
361 0060058 Uniforms & Mats Weekly Rental 415010 41200 1.22
361 0060058 Uniforms & Mats Weekly Rental 410060 49280 5.55
361 0060059 Uniforms Weekly Rental Fee 405060 49280 5.44
361 0060060 Uniforms Weekly Rental Fee 403570 49280 30.61
361 0060055 Fleet: Mats, Uniforms & Wipes 415010 41200 8.81
361 0060055 Fleet: Mats, Uniforms & Wipes 413010 49280 46.02
Total for Check 403697: 796.72
403698 07 -Mar -19 655 UNITED SITE SERVICES 1 14-801 841 9 Portable Services 02/06-03/05/19 202020 41200 584.90
403699 07 -Mar -19 1612 USAFACT, INC. 9021426 Background Investigations 121010 17999 56. 50
403700 07 -Mar -19 321 VERIZON WIRELESS 9824580114 Field / Mobile Broadband Data: Feb 2019 113010 22000 76. 02
403701 07 -Mar -19 260 VILLAGE NURSERIES 499161 LMD 86-2B: plant material 424140 47700 243.56
403702 07 -Mar -19 1634 VINYARD DOORS, INC. 98255 Fleet: vehicle storage door service 415010 41200 1,205.00
403703 07 -Mar -19 474 VIP JANITORIAL SERVICE 5182 Janitorial Services 206020 41400 1,540.84 N
5182 Janitonal Services 415010 41400 12,797.33 O
5183 New Pool Add On 415010 41400 350.00 Cl)
5184 Poway Auditorium Special Cleaning 415010 41400 241.59
5185 Sanitary Supplies 415010 47200 2,663.68
Register of Demands:
Warrants from 3/4/2019 3/82019
Check Check Payee/
Number Date Vendor # PayeeNendor Name Invoice Number Description Org
403703 07 -Mar -19 474 VIP JANITORIAL SERVICE 5186 Library: sanitary supplies 206020
403430 21 -Feb -19 128 VOID 1904027 Advertisement: Finance Manager, #19-03 Recruit 121010
403484 26 -Feb -19 60 VOID 16002011302R19 Agreement #1 600-2011-302-R5 4 Sites 412040
403704 07 -Mar -19 1986 VOLGISTICS, INC 92155090 Volunteer Management Software Renewal 121010
403705 07 -Mar -19 272 WAXIE 78080267 The Lake: sanitary supplies 415010
78077323 Community Center: sanitary supplies 415010
403706 07 -Mar -19 604 WEED ELIMINATOR, INC 2019-6 Weed Abatement - Encampment Pomerado Rd 301030
403707 07 -Mar -19 540 WEST COAST ARBORISTS, INC. 144992 Tree Trimming, Removal and Rep 415010
403708 07 -Mar -19 1629 WILLIS INSURANCE SERVICES OF CA 2095551 Consulting Fees: April 2019 F1000
403709 07 -Mar -19 293 WOLPERT, JOSEPH 2001.300-02.19 Instructor Payment Winter 2018-19 208020
Director of Finance Approved: Va a
Date: 3` 11 —1 1
Page: 11 of 11
Object Project Check Amount
47200 $589.43 N
Total for Check 403703: $18,182.87
49340 $0.00 Edw
57300 $0.00 m
r
41200 $1,476.00 N
47200 $154.60 N
47200 $1,127.07 .Q
Total for Check 403705: $1,281.67 Q
49180 $300.00
41200 $2,806.44
87399 $12,750.00
41300 $1,174.80
Register Total: $2,041,552.78
vNw
V04
APPROVED
City of Poway
COUNCIL AGENDA REPORT
APPROVED AS AMENDED
SEE MINUTES)
DENIED
REMOVED
CONTINUED _____ _
DATE:
TO:
FROM:
SUBJECT:
Summary:
April 2, 2019
Honorable Mayor and Members of the City Council
Faviola Medina, City Clerk U/\
858)668.4535 or fmedina@poway.org \ ,. '
Approval of Minutes
The City Council Meeting Minutes submitted hereto for approval are:
March 5, 2019 Regular City Council Meeting Minutes
RESOLUTION NO.
The Poway City Council sits as the Poway Planning Commission, the Poway Housing Authority,
the Public Financing Authority, and the Successor Agency to the Poway Redevelopment Agency.
Recommended Action:
It is recommended that the City Council approve the Minutes as submitted.
Public Notification:
None.
Attachments:
A March 5, 2019 Regular City Council Meeting Minutes
Reviewed/Approved By:
Wendy Kaserman
Assistant City Manager
1 of 6
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Tina M. White
City Manager
April 2, 2019, Item #1.3
NOTE: These draft meeting minutes are not official until approved by the City Council at the next scheduled meeting.
CITY OF POWAY
CITY COUNCIL REGULAR MEETING
MINUTES
March 5, 2019
City Council Chambers
13325 Civic Center Drive, Poway, California
Per Government Code 54953)
Meeting Called to Order as City Council/Cityof Poway Planning Commission/Poway Housing Authority/Public Financing
Authority and Successor Agency to the Poway Redevelopment Agency)
CALL TO ORDER
Mayor Vaus called the Regular Meeting to order at 7:00 p.m.
ROLL CALL Mullin, Leonard, Frank, Grosch, Vaus
STAFF MEMBERS PRESENT
City Manager Tina White; Assistant City Manager Wendy Kaserman; City Attorney Alan
Fenstermacher; City Clerk Faviola Medina; Community Services Director Brenda Sylvia;
Development Services Director Bob Manis; Finance Director Donna Goldsmith; Human
Resources/Risk Management Director Jodene Dunphy; Director of Public Works Michael
Obermiller; Fire Chief Mark Sanchez; Captain Jeff Duckworth, Sheriff's Department.
Note: Hereinafter the titles Mayor, Deputy Mayor, Councilmember, City Manager, Assistant City
Manager, CityAttorney, City Clerk and Director of Finance shall be used to indicate Mayor/Chair,
Deputy MayorNice Chair, Councilmember/Director, City Manager/Executive Director, Assistant
City Manager/Assistant Executive Director, City Attorney/Counsel, City Clerk/Secretary and
Director of Finance/FinanceOfficer.)
PLEDGE OF ALLEGIANCE
Deputy Mayor Grosch led the pledge of allegiance.
PRESENTATION
Councilmember Frank presented a Proclamation to the Poway High School Robotics Team in
recognition of Robotics Day.
Mayor Vaus presented service recognition to Director of Safety Services Mark Sanchez for his
45-Year Anniversary with the City and awarded him a Mayors Medallion.
Mayor Vaus administered an Oath of Office to City of Poway's new City Clerk, Faviola Medina.
PUBLIC ORAL COMMUNICATIONS
Holly Haeseler spoke regarding bee keeping and the dangers of pesticide use in Poway.
2 of6 April 2, 2019, Item #1.3
OF POW`IY
City of Poway
ThE 0 COUNCIL AGENDA REPORT
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Faviola Medina, City Clerk
CONTACT: Faviola Medina, City Clerk
858) 668-4535 or finedinapoway.org
APPROVED
APPROVED AS AMENDED
SEE MINUTES)
NONE
DENIED
REMOVED
CONTINUED
Ordinance No.
SUBJECT: Second Reading and Adoption of Ordinance No. 826 entitled "An Ordinance of the
City of Poway, California, Adding Chapter 5.22 to the Poway Municipal Code and
Amending Section 9.48.240(A) of the Poway Municipal Code Relating to
Regulation of Sidewalk Vendors."
Summary:
The introduction and first reading of the above -entitled Ordinance was approved at a Regular City
Council Meeting on March 19, 2019. All Councilmembers were present. There was one speaker.
The Ordinance is now presented for second reading and adoption by title only
Vote at first reading: AYES: MULLIN, LEONARD, FRANK, GROSCH, VAUS
ABSTAINED: NONE
ABSENT: NONE
DISQUALIFIED: NONE
Recommended Action:
It is recommended that the City Council adopt Ordinance No. 826.
Fiscal Impact:
The City may incur costs associated with additional enforcement of compliance with the proposed
sidewalk vendor program. Costs associated with issuance and administration of a sidewalk
vendor permit are proposed to be at least partially recovered through an application and permit
fee process, which will be brought for City Council approval at a future meeting.
Environmental Review:
The adoption of the proposed Ordinance is not a " project' that is subject to CEQA review because
it will not result in direct physical change in the environment, or a reasonably foreseeable indirect
physical change in the environment.
1 of 17 April 2, 2019, Item #1.4
Public Notification:
A summary notice was published in the Poway News Chieftain on Thursday, March 28, 2019. A
second summary notice will be published in the same publication on Thursday, April 11, 2019. A
certified copy of this Ordinance will also be posted in the Office of the City Clerk in accordance
with Government Code section 36933.
Attachment:
A. Ordinance No. 826
Reviewed/Approved By:
Wendy Kaserman
Assistant City Manager
Reviewed By:
Alan Fenstermacher
City Attorney
A=oved
h`_.
Tina M. White
City Manager
2 of 17 April 2, 2019, Item #1.4
ORDINANCE NO. 826
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA, ADDING CHAPTER
5.22 TO THE POWAY MUNICIPAL CODE AND AMENDING SECTION 9.48.240(A)
OF THE POWAY MUNICIPAL CODE RELATING TO REGULATION OF SIDEWALK
VENDORS
WHEREAS, on September 17, 2018, California Governor Edmund Gerald Brown signed
Senate Bill 946 ("SB 946") into law, which adds Chapter 6.2 (commencing with Section 51036) to
Part 1 of Division 1 of Title 5 of the California Government Code to regulate sidewalk vendors
throughout the state, including within the City of Poway;
WHEREAS, SB 946 took effect January 1, 2019, and limits the authority of cities and
counties in the state to regulate sidewalk vendors, except as otherwise specifically and expressly
provided;
WHEREAS, existing provisions of the Poway Municipal Code prohibit or limit the activities
of sidewalk vendors in a manner that may be in conflict with the provisions of SB 946;
WHEREAS, the City Council adopts this Ordinance in accordance with the authority
granted by SB 946;
WHEREAS, the City Council declares that the regulations enacted by this Ordinance are
intended to promote and protect the health, safety and welfare of the City's residents, businesses,
and visitors and are in furtherance of the City's police powers;
WHEREAS, the City Council further declares that the provisions of this Ordinance are
intended to regulate the time, place, and manner of sidewalk vending directly relating to public
health, safety, and welfare objectives and concerns;
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance, including, but not limited to those governing minimum sidewalk widths, sidewalk
vending receptacle sizes, distance requirements, and food and merchandise storage, are
intended and necessary to ensure compliance with the federal Americans with Disabilities Act of
1990 (Public Law 101-336) and other disability access standards;
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance are intended and necessary to ensure the public's use and enjoyment of natural
resources and recreational opportunities;
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance are intended and necessary to protect the natural resources and scenic and natural
character of the City's parks and to prevent an undue concentration of commercial activity that
unreasonably interferes with the scenic and natural character of City parks;
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance are intended and necessary to ensure public access to and enjoyment of locations that
are popular tourist and regional destinations with unusually high pedestrian, bicyclist, and
vehicular traffic volumes, to protect the public from injury, and to minimize any interference and
allow a clear exit path from commercial businesses to exit onto public sidewalks; and
3 of 17 April 2, 2019, Item #1.4
WHEREAS, the City Council desires to retain the ability for local enforcement of sidewalk
vendor regulations, including the imposition of fines for violations, to the extent consistent with
State law.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN
AS FOLLOWS:
SECTION 1: Chapter 5.22, entitled "Regulation of Sidewalk Vendors," is hereby added to
the Poway Municipal Code to read in its entirety as follows:
Chapter 5.22
Regulation of Sidewalk Vendors
Sections:
5.22.010 Purpose
5.22. 020 Definitions
5.22.030 Permit required
5.22.040 Issuance of permit
5.22.050 Operating conditions
5.22.060 Prohibited activities and locations
5.22.070 Penalties
5.22.080 Appeals
5.22.010 Purpose
a) The purpose of this chapter is to establish a permitting and regulatory program for
sidewalk vendors that complies with Senate Bill 946 (Chapter 459, Statutes 2018), codified as
Government Code section 51036 et seq. The provisions of this chapter allow the City to
encourage small business activities by removing total prohibitions on portable food stands and
certain forms of solicitation while still permitting regulation and enforcement of unpermitted
sidewalk vending activities to protect the public's health, safety and welfare.
b) The City Council hereby finds that to promote the public's health, safety and
welfare, restrictions on sidewalk vending are necessary to:
1. Ensure no unreasonable interference with the flow of pedestrian or
vehicular traffic including ingress into, or egress from, any residence, public building, or place of
business, or from the street to the sidewalk by persons exiting or entering parked or standing
vehicles;
2. Provide reasonable access for the use and maintenance of sidewalks,
pathways, poles, posts, traffic signs or signals, hydrants, firefighting apparatus, mailboxes, as well
as access to locations used for public transportation services;
3. Reduce exposure to the City for personal injury or property damage claims
and litigation; and
4 of 17 April 2, 2019, Item #1.4
4. Ensure sidewalk vending activities occur only in locations where such
activities would not restrict sidewalk and pathway access, including impeding access by
individuals with disabilities.
5.22.020 Definitions
As used in this chapter, the following terms and phrases shall have the meaning ascribed
to them in this part, unless the context in which they are used clearly requires otherwise. If a term
or phrase is not defined in this part, or elsewhere in this code, the most common dictionary
definition is presumed to be correct.
a) "Alcoholic beverage" shall have the same meaning as defined in
Section 9.54.020(B) of this code, or any successor section.
b) "Cannabis" shall mean all parts of the plant Cannabis sativa Linnaeus, Cannabis
indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude
or purified, extracted from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the
separated resin, whether crude or purified, obtained from marijuana. "Cannabis" also means
cannabis products," "cannabis accessories," as defined by Sections 11018.1 and 11018.2 of the
California Health and Safety Code, as may be amended from time to time. The term "cannabis'
shall also have the same meaning as set forth in Section 19300.5(f) of the California Business
and Professions Code, as may be amended from time to time.
c) "Certified farmers' market" means a location operated in accordance with
Chapter 10. 5 (commencing with Section 47000) of Division 17 of the Food and Agricultural Code
and any regulations adopted pursuant to that chapter, or any successor chapter.
d) "Curb face" means the vertical or sloping surface on the roadway side of the curb.
e) "Emergency vehicle access" means the roadway path or other surface that
provides police or fire safety vehicular access from the dispatched point of origin to a facility,
building, parcel, park or portion thereof. Emergency vehicle access includes, but is not limited to,
fire lanes, public and private streets, parking lot lanes, access roadways, and walkways.
f) "Food" means any item provided in Health and Safety Code Section 113781, or
any successor section.
g) "Hearing officer" means an individual designated by the City Manager to determine
appeals pursuant to and in accordance with section 5.22.080.
h) "Heating element" means any device used to create heat for food preparation.
i) "Merchandise" means any item(s) that can be sold and immediately obtained from
a sidewalk vendor which is not considered food. Items for rent shall not be considered
merchandise.
Q) "Park" means any area dedicated or established as a public park, including without
limitation, active and passive parks.
5 of 17 April 2, 2019, Item #1.4
k) "Pedestrian pathway' or "pathway" means a paved path or walkway developed
primarily for pedestrian travel, other than a sidewalk.
1) "Person" means and includes all domestic and foreign corporations, associations,
syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law
trusts, societies, and individuals transacting and carrying on any business in the City.
m) "Public property" means all property owned or controlled by the City, including, but
not limited to, alleys, parks, pathways, streets, parking lots, sidewalks, and walking trails.
n) "Residential" means any area zoned exclusively as residential in Title 17 of this
code, including without limitation the City's RR -A through RR -C, RS -1 through RS -7, RC and RA
zoning districts.
o) "Roaming sidewalk vendor" means a sidewalk vendor who moves from place -to -
place and stops only to complete a transaction.
p) "Sidewalk" means that portion of a street, other than the roadway, set apart by
curbs, barriers, markings or other delineation for pedestrian travel.
q) "Sidewalk vending receptacle' means a pushcart, stand, display, wagon,
showcase, rack, or non -motorized conveyance used for sidewalk vending activities. "Sidewalk
vending receptacle" shall not include pedal driven carts.
r) "Sidewalk vendor' or "vendor' means a person(s) who sells food or merchandise
from a sidewalk vending receptacle or from one's person, upon a public sidewalk or pathway.
s) "Sidewalk vendor activities' or "sidewalk vending activity" means actions that
qualify a person as a sidewalk vendor or actions done in anticipation of becoming a sidewalk
vendor such as, but not limited to, installation, placement, or maintenance of any sidewalk vendor
receptacles.
t) "Special event" means any temporary permitted event approved by the City.
u) "Stationary sidewalk vendor" means a sidewalk vendor who vends from a fixed
location.
v) "Street" means a way or place of whatever nature, publicly maintained, within City
public right-of-way, and open to the use of the public for purposes of vehicular travel.
w) "Swap meet" means a location operated in accordance with Article 6 (commencing
with Section 21660) of Chapter 9 of Division 8 of the Business and Professions Code, and any
regulations adopted pursuant to that Chapter, or any successor Chapter.
x) "Temporary use permit" means any permit issued by the City of Poway for
temporary uses (e.g., special event permits, temporary use permits, film permits, park or facility
reservations).
y) "Tobacco product" shall have the same meaning as defined in Section 8.05.020 of
this code, or any successor section.
6 of 17 April 2, 2019, Item #1.4
5. 22.030 Permit required
A. Permit Required. No person, either for himself/herself or any other person, shall
engage in any sidewalk vendor activities within the City without first applying for and receiving a
permit from the City Manager, or his or her designee, in accordance with this chapter.
B. Application. A written application for a sidewalk vendor permit shall be filed with
the City Manager, or his or her designee, on a form provided by the City and shall contain the
following information:
1. The name, address, and telephone number of the person applying to
become a sidewalk vendor;
2. A copy of a California driver's license or identification card (or other photo
identification deemed acceptable by the City), as well as a California driver's license or
identification card number, individual taxpayer identification number, or municipal identification
number (which shall not be available to the public for inspection, is confidential, and shall not be
disclosed except as required to administer the permit or comply with a state law or state or federal
court order);
3. The name, address, and telephone number of the person who will be in
charge of any roaming sidewalk vendors, sidewalk vending activity and/or be responsible for the
person(s) working at the sidewalk vending receptacle;
4. The name, address, and telephone number of all persons that will be
employed as roaming sidewalk vendors or at a sidewalk vending receptacle;
5. The number of sidewalk vending receptacles the sidewalk vendor will
operate within the City under the permit;
6. Whether the vendor intends to operate as a stationary sidewalk vendor or
a roaming sidewalk vendor;
7. The day(s) and hours of operation the stationary sidewalk vendor intends
to operate at such location(s);
8. The location(s) in the City where the stationary sidewalk vendor intends to
operate;
9. The dimensions of the sidewalk vendor's sidewalk vending receptacle(s),
including a picture of each sidewalk vending receptacle operating under the permit;
10. Whether the sidewalk vendor will be selling food, merchandise, or both;
11. If the sidewalk vendor is selling food, a description of the type of food to be
sold, whether such foods are prepared on site, and whether the vendor requires a heating element
to prepare the food;
12. If the vendor is selling merchandise, a description of the merchandise to be
sold;
7 of 17 April 2, 2019, Item #1.4
13. A copy of the health permit required for any sidewalk vendors selling food,
as required by the County of San Diego, Title 8 of the PMC, or any successor chapter;
14. Proof of his or her possession of a valid California Department of Tax and
Fee Administration seller's permit, which shall be maintained during the pendency of the sidewalk
vendor's permit;
15. A statement disclosing whether the applicant has ever been convicted of
any criminal offense(s) and an agreement to submit to a criminal background check, including
Live Scan fingerprinting;
16. An acknowledgment that the sidewalk vendor will comply with all other
generally applicable local, state, and federal laws;
17. A certification that, to his or her knowledge and belief, the information
contained within the application is true and correct;
18. An agreement by the sidewalk vendor to defend, indemnify, release and
hold harmless the City, its City Council, boards, commissions, officers and employees from and
against any and all claims, demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may
arise from or in any manner relating (directly or indirectly) to the permit or the vendor's sidewalk
vending activities. This indemnification shall include, but not be limited to, damages awarded
against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection
with such claim, action, or proceeding whether incurred by the permittee, City, and/or the parties
initiating or bringing such proceeding;
19. An acknowledgement that the sidewalk vendor's use of public property is
at their own risk, the City does not take any steps to ensure public property is safe or conducive
to the sidewalk vending activities, and the sidewalk vendor uses public property at his or her own
risk;
20. An acknowledgment by the sidewalk vendor that he or she will obtain, and
at all times during the duration of the permit, maintain any insurance of such types and in such
amounts as required by the City's risk manager, and
21. Any other relevant information required by the City Manager.
C. Application and Permit Fees. Each application for a sidewalk vendor permit shall
be accompanied by an application fee as established by resolution of the City Council. The
application and permit is only applicable to the individual(s) named on the application. If said
permit is approved, it shall not be necessary for the permittee to obtain a City business certificate
to carry on the activities authorized by said permit, unless such permittee maintains a permanent
place of business within the City.
8 of 17 April 2, 2019, Item #1.4
5.22.040 Issuance of permit
A. Within thirty (30) calendar days of receiving a complete application, the City
Manager may issue a sidewalk vendor permit, with appropriate conditions, as provided for herein,
if he or she finds based on all of the relevant information that:
1. The conduct of the sidewalk vendor will not unduly interfere with traffic or
pedestrian movement (specifically including but not limited to complying with PMC Title 15
pedestrian clearances), or tend to interfere with or endanger the public peace or rights of nearby
residents to the quiet and peaceable enjoyment of their property, or otherwise be detrimental to
the public peace, health, safety or general welfare;
2. The conduct of the sidewalk vendor will not unduly interfere with normal
governmental or City operations, threaten to result in damage or detriment to public property, or
result in the City incurring costs or expenditures in either money or personnel not reimbursed in
advance by the vendor;
3. The conduct of such sidewalk vending activity will not constitute a fire
hazard, and all proper safety precautions will be taken;
4. The conduct of such sidewalk vending activity will not require the diversion
of law enforcement personnel to properly police the area of such activity as to interfere with normal
police protection for other areas of the City;
5. The sidewalk vendor has paid all previous administrative fines, completed
all community service, and completed any other alternative disposition associated in any way with
a previous violation of this chapter;
6. The sidewalk vendor has not had a permit revoked within the same
calendar year;
The sidewalk vendor's application contains all required information;
8. The sidewalk vendor has not made a materially false, misleading, or
fraudulent statement of fact to the City in the application process;
9. The sidewalk vendor has satisfied all the requirements of this chapter;
10. The sidewalk vendor has paid all applicable fees as set by City Council
resolution;
11. The sidewalk vendor's sidewalk vending receptacle and proposed activities
conform to the requirements of this chapter;
12. The sidewalk vendor has adequate insurance to protect the City from
liability associated with the sidewalk vendor's activities, including the naming of the City as an
additional insured, as determined by the City's risk manager; and
13. The vendor has satisfactorily provided all information requested by the City
Manager to consider the vendor's application.
9 of 17 April 2, 2019, Item #1.4
B. A sidewalk vendor permit is non -transferable. Any change in ownership or
operation of a sidewalk vendor or sidewalk vending receptacle requires a new permit under this
chapter.
C. All permits issued under this chapter, regardless of when issued, expire on
December 31 of the year in which they were issued.
5.22.050 Operating conditions
All sidewalk vendors are subject to the following operating conditions when conducting
sidewalk vending activities:
A. All food and merchandise shall be stored either inside or affixed to the sidewalk
vendor receptacle or carried by the sidewalk vendor. Food and merchandise shall not be stored,
placed, or kept on any public property. If affixed to the sidewalk vendor receptacle, the overall
space taken up by the sidewalk vendor receptacle shall not exceed the size requirements
provided in this section.
B. The sidewalk vendor permit shall be displayed conspicuously at all times on the
sidewalk vending receptacle or the sidewalk vendor's person. If multiple sidewalk vendors are
staffing a sidewalk vendor receptacle or working as roaming sidewalk vendors, each person shall
wear their permit on their person in a conspicuous manner.
C. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to
solicit business for their sidewalk vending activities. Sidewalk vending receptacles shall not be
stored on public property and shall be removed when not in active use by a vendor.
D. All sidewalk vendors shall allow any law enforcement official, firefighter, life safety
services officer, or code enforcement officer, at any time, to inspect their sidewalk vending
receptacle for compliance with the size requirements of this chapter and to ensure the safe
operation of any heating elements used to prepare food.
E. Sidewalk vending receptacles shall not exceed a total height of three (3) feet, a
total width of three (3) feet, and a total length of three (3) feet.
F. No sidewalk vending receptacle shall be motorized or pedal -driven.
G. If a sidewalk vending receptacle requires more than one (1) person to conduct the
sidewalk vending activity, all sidewalk vendors associated with the sidewalk vending receptacle
shall be within five (5) feet of the sidewalk vending receptacle when conducting sidewalk vending
activities.
H. Sidewalk vendors that sell food shall maintain a trash container in or on their
sidewalk vending receptacle and shall not empty their trash into public trashcans. The size of the
vendor's trash container shall be taken into account when assessing the total size limit of a
sidewalk vending receptacle.
I. Sidewalk vendors shall maintain sanitary conditions in the 10 -foot radius around
and within the vicinity of the vendor and shall not leave any location without returning the location
to the condition when the sidewalk vendor first arrived at the location, by, including but not limited
to, picking up, removing, and disposing of all food, grease or other fluid, item, trash or refuse from
10 of 17 April 2, 2019, Item #1.4
their operation. Any disposal activities must comply with Chapter 13.09 of this Code and all other
applicable stormwater law, rules and regulations, as well as all applicable law, rules and
regulations relating to public health and safety.
J. Sidewalk vendors shall maintain a minimum four (4) foot clear accessible path free
from obstructions, including sidewalk vending receptacles and customer queuing area.
K. Sidewalk vendors shall comply with the noise standards provided in Chapter 8.08
of this Code, and any successor sections. Additionally, all use of sound amplification, music, live
entertainment, bells, whistles, and horns are prohibited when vending in residential areas.
L. Sidewalk vendors shall not approach persons to sell food or merchandise and shall
not interfere, in any way, with anyone engaged in an activity to sell food or merchandise.
M. Sidewalk vendors shall not vend to or otherwise conduct transactions with persons
in moving vehicles or vehicles parked or stopped.
N. No freestanding commercial signs are permitted, as set forth in Chapter 17.40 of
this Code. Sidewalk vendors shall not affix, employ or otherwise use a light display of any kind in
connection with sidewalk vending activities, specifically including but not limited to flashing or
animated lights.
5.22.060 Prohibited activities and locations
A. Sidewalk vendors shall comply with all operating conditions, including those
conditions set forth in Section 5.22.050.
B. Sidewalk vendors shall not engage in any of the following activities:
1. Renting merchandise to customers.
2. Displaying merchandise or food that is not available for immediate sale.
3. Selling, processing, cultivating, distributing and/or delivering adult-oriented
material, tobacco products, alcoholic beverages, drugs of any kind, pharmaceuticals, or cannabis,
including medical and recreational marijuana and related merchandise or paraphernalia.
4. Using an open flame on or within any sidewalk vending receptacle.
5. All sidewalk vendors, regardless of whether a roaming sidewalk vendor or
stationary sidewalk vendor, are prohibited from conducting sidewalk vending activities between
the hours of 10:00 p.m. and 7:00 a.m. daily. In parks, sidewalk vending activities will end at
10:00 p.m. or one hour before park closure, whichever is earlier. In residential areas, all stationary
sidewalk vending is prohibited. In residential areas, roaming sidewalk vending activity is
prohibited between the hours of 6:00 p.m. or sunset, whichever is earlier, and 9:00 a.m. of the
following day, Monday through Saturday, inclusive, and all day on Sundays and federal holidays.
6. Continuing to offer food or merchandise for sale, following, or
accompanying any person who has been offered food or merchandise after the person has asked
the vendor to leave or after the person has declined the offer to purchase food or merchandise.
11 of 17 April 2, 2019, Item #1.4
7. Knowingly making false statements or misrepresentations during the
course of offering food or merchandise for sale.
8. Blocking or impeding the path of the person(s) being offered food or
merchandise to purchase.
9. Making any statements, gesture, or other communication which a
reasonable person in the situation of the person(s) being offered food or merchandise to purchase
would perceive to be a threat and which has a reasonable likelihood to produce in the person(s)
a fear that the threat will be carried out.
10. Touching the person(s) being offered to purchase food or merchandise
without that person(s)' consent.
11. Selling of animals of any kind.
C. Sidewalk vendors shall not engage in sidewalk vending activities at the following
locations:
facility; or
Within twelve (12) inches of any curb face on all roads;
2. Within fifteen (20) feet of any entrance or exit to a building, structure or
3. On any designated emergency vehicle accessway.
4. Any public property that does not meet the definition of a sidewalk including
without limitation any alley, courtyard, unpaved trail, street, roadway or parking lot.
5. Within two hundred (200) feet of an area designated for a temporary special
permit issued by the City, during the limited duration of the temporary special permit. If the City
provides any notice, business interruption mitigation, or other rights to affected businesses or
property owners under the City's temporary special permit, such notice will also be provided to
any sidewalk vendors specifically permitted to operate in the area, if applicable.
6. Within two hundred (200) feet of the Poway Center for the Performing Arts,
located at 15498 Espola Road, from the time period commencing two (2) hours before any
ticketed event (including without limitation any play, performance, or concert) at the Poway Center
for the Performing Arts is scheduled to begin, until two hours after that event has ended.
7. At the Blue Sky Ecological Reserve or Iron Mountain trailhead, specifically
including but not limited to all associated parking lots, both of which were created and are
maintained to allow residents and visitors to enjoy the natural landscape and habitat of myriad
species of flora and fauna. Permitting any commercial sidewalk vending in the reserve would not
only diminish the public's use and enjoyment of natural resources and recreational activities, such
sidewalk vending activity will create an undue concentration of commercial activity that
unreasonably interferes with the scenic and natural character of the reserve.
8. On any private property without the express written consent of the owner
or lessee of the property.
12 of 17 April 2, 2019, Item #1.4
9. Sidewalk vendors shall not engage in sidewalk vending activities within fifty
50) feet of another sidewalk vendor.
10. Sidewalk vendors shall not engage in sidewalk vending activities within one
hundred (100) feet of the property line of a school, a place of worship, or a child day-care facility.
11. Sidewalk vendors shall not engage in sidewalk vending activities within two
hundred (200) feet of a permitted certified farmers' market or swap meet during the limited
operating hours of that certified farmers' market or swap meet.
12. Stationary sidewalk vending activities shall only occur on sidewalks or
pathways with a minimum width of eight (8) feet or larger.
13. Sidewalk vendors shall not engage in sidewalk vending activities within
twenty-five (25) feet of a:
zone;
a) Fire hydrant;
b) Curb which has been designated as yellow or red zone, or a bus
c) Automated teller machine;
d) Driveway, alley, or street corner;
e) Trash or recycling receptacles, bike racks, benches, bus stops or
similar public use items; and
f) Public art objects, items, and displays.
14. Sidewalk vendors shall not engage in sidewalk vending activities that would
violate provisions of this code relating to visibility requirements for streets, alleys, driveways, and
intersections.
15. Stationary sidewalk vendors shall not sell food or merchandise or engage
in any sidewalk vending activities at any park where the City has signed an agreement for
concessions that exclusively permits the sale of food or merchandise by a concessionaire.
16. On any sidewalk with a gradient in excess of ten percent (10%).
17. Within two hundred (200) feet of any public safety facility, including without
limitation police stations and fire stations.
18. Within twenty-four (24) inches of a parallel parking space.
19. On any sidewalk not adjacent to a state highway where vending equipment
and queuing patrons would reduce clearance to less than four (4) feet.
20. On any sidewalk adjacent to a state highway where vending equipment and
queuing patrons would reduce clearance to less than five (5) feet, with temporary restrictions of
no less than three (3) feet.
13 of 17 April 2, 2019, Item #1.4
21. On any sidewalk where vending equipment and queuing patrons would
restrict access requirements under the Americans with Disabilities Act.
22. On any sidewalk where vending equipment and queuing patrons would
jeopardize the fire or life safety of any person.
D. Sidewalk vending receptacles shall not touch, lean against or be affixed at any
time to any building or structure including, but not limited to lampposts, parking meters, mailboxes,
traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans, or traffic barriers.
5.22.070 Penalties
A. Violations of this chapter shall not be prosecuted as infractions or misdemeanors
and shall only be punished by the following administrative fine and rescission provisions.
B. Any violation of this chapter may be punished by:
1. An administrative fine not exceeding one hundred dollars ($100) for a first
violation;
2. An administrative fine not exceeding two hundred dollars ($200) for a
second violation within one (1) year of the first violation; and
3. An administrative fine not exceeding five hundred dollars ($500) for each
additional violation within one (1) year of the first violation.
C. If a sidewalk vendor violates any portion of this chapter and cannot present the
citing officer with a proof of a valid permit, the sidewalk vendor may be punished by:
1. An administrative fine not exceeding two hundred fifty dollars ($250) for a
first violation;
2. An administrative fine not exceeding five hundred dollars ($500) for a
second violation within one (1) year of the first violation; and
3. An administrative fine not exceeding one thousand dollars ($1,000) for
each additional violation within one (1) year of the first violation.
D. Upon proof of a valid permit issued by the City, the administrative fines set forth in
subsection C shall be reduced to the administrative fines set forth in subsection 8, or any
successor sections.
E. The City Manager, or his or her designee, may rescind a permit issued to a
sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations.
5. 22.080 Appeals
A. Decisions to deny an application for a permit or to impose administrative fines may
be appealed by any interested person. Appeals shall be heard and determined by the Hearing
Officer.
14 of 17 April 2, 2019, Item #1.4
B. Appeals shall be initiated within ten (10) calendar days of the decision or imposition
of administrative fine. If the 10th day falls on Saturday, Sunday, or another day when City Hall is
closed, the deadline shall be extended to 5:00 p.m. of the next working day. Appeals of a decision
to deny an application for a permit shall be accompanied by a fee as established by resolution of
the City Council. Notwithstanding any other provision of law, a person appealing an administrative
fine is not required to pay the administrative fine as a prerequisite to filing an appeal.
C. Appeals of decisions or administrative fines shall be made in writing to the Hearing
Officer. The appeal must be legible and set forth:
The appellant's full name, address and phone number;
2. The subordinate entity;
3. The date of the determination;
4. The determination for which review is sought;
5. The appellant's interest in the appealed determination; and
6. Each reason why the appellant appeals the determination.
D. Decisions regarding administrative fines that are appealed shall not become
effective until the appeal is resolved.
E. An insufficient appeal shall be returned to the appellant.
F. If the appeal is sufficient, the City Clerk shall set the appeal for a hearing before
the Hearing Officer within thirty (30) calendar days of the filing of the appeal unless both the
appellant and the Hearing Officer consent to a later date.
G. The Hearing Officer shall give notice in writing to the appellant of the time and
location of the appeal hearing. At the hearing, the Hearing Officer shall review the record of the
decision or administrative fine and hear testimony of the appellant, if any, the applicant and any
other interested party. The appeal shall be reviewed and determined on a de novo basis.
1. If an administrative fine is the subject of an appeal, the Hearing Officer shall
take into consideration the person's ability to pay the fine. The Hearing Officer shall provide the
person with notice of his or her right to request an ability -to -pay determination and shall make
available instructions or other materials for requesting an ability -to -pay determination. The person
may request an ability -to -pay determination at or before the hearing or while the administrative
fine remains unpaid.
2. If the person meets the criteria described in subdivision (a) or (b) of
Government Code Section 68632, or any successor section, the Hearing Officer shall accept, in
full satisfaction, twenty percent (20%) of the administrative fine imposed pursuant to this chapter.
3. The Hearing Officer may allow the person to complete community service
in lieu of paying the total administrative fine, may waive the administrative fine, or may offer an
alternative disposition.
15 of 17 April 2, 2019, Item #1.4
H. After the hearing, the Hearing Officer shall affirm, modify or reverse the original
decision or administrative fine. When a decision or administrative fine is modified or reversed,
the Hearing Officer shall state the specific reasons for modification or reversal. Decisions on
appeals shall be rendered within thirty (30) calendar days of the close of the hearing. The Hearing
Officer shall mail notice of a decision to the appellant. Such notice shall be mailed within five
5) working days after the date of the decision to the appellant. The decision of the Hearing Officer
shall be final.
SECTION 2: Section 9.48.240, subdivision (A) of the Poway Municipal Code is hereby
amended to read as follows:
Except and only as expressly permitted in PMC Chapter 5.22. Alno person shall
sell or offer for sale any goods, wares, articles or merchandise; or practice, carry
on, conduct or solicit for any trade, occupation, business or profession within a City
Community Services facility without the authorization of the Director. Nothing in
this provision shall prohibit sales of articles or solicitations by nonprofit
organizations that are otherwise allowed by law.
SECTION 3: If any section, subsection, sentence, clause or phrase of this Ordinance is
for any reason held to be unconstitutional or otherwise invalid, such invalidity shall not affect the
validity of this entire Ordinance or any of the remaining portions hereof. The City Council hereby
declares that it would have passed this Ordinance, and each section, subsection, subdivision,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional or
otherwise invalid.
SECTION 4: The City Council finds the introduction and adoption of this ordinance is not
subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2)
the activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential
for resulting in physical change to the environment, directly or indirectly.
SECTION 5: This Ordinance shall be codified.
EFFECTIVE DATE: This Ordinance shall be in full force and effect thirty (30) days after
its adoption.
CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this
Ordinance and cause it or a summary of it, to be published with the names of the City Council
members voting for and against the same in the Poway News Chieftain, a newspaper of general
circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified
copy of this Ordinance in the Office of the City Clerk in accordance with Government Code §
36933.
16 of 17 April 2, 2019, Item #1.4
Introduced and first read at a regular meeting of the City Council of the City of Poway held
on the 19th day of March 2019, and thereafter, PASSED, APPROVED, AND ADOPTED at a
regular meeting of the City Council of the City of Poway held on the 2nd day of April 2019.
Vaus, Mayor
ATTEST:
Faviola Medina, CMC, City Clerk
STATE OF CALIFORNIA )
SS
COUNTY OF SAN DIEGO )
I, Faviola Medina, City Clerk of the City of Poway, California, do hereby certify that the
above and foregoing Ordinance No. 826 was duly adopted by the City Council at a regular meeting
of said City Council held on the 2nd of April 2019, and that it was so adopted by the following
vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
Faviola Medina, City Clerk
City of Poway
17 of 17 April 2, 2019, Item #1.4
OF POW`Y
City of Poway
CA IN THE CoU COUNCIL AGENDA REPORT
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Faviola Medina, City Clerk
CONTACT: Faviola Medina, City Clerk T m
858) 668-4535 or finedina(a)poway.org
APPROVED
APPROVED AS AMENDED
SEE MINUTES)
NONE
DENIED
REMOVED
CONTINUED
Ordinance No.
SUBJECT: Second Reading and Adoption of Ordinance No. 827 entitled "An Ordinance of the
City of Poway, California, Amending Chapters 1.02, 1.08, 1.10, 2.20, 8.72, 8.76,
8.80, 13.09, 15.02, and 17.54 Adding Chapters 15.03 and 15.32, and Deleting
Chapters 16.56, 16.68 and 8. 84 of the Poway Municipal Code Relating to Code
Compliance."
Summary:
The introduction and first reading of the above -entitled Ordinance was approved at a Regular City
Council Meeting on March 19, 2019. All Councilmembers were present. There were no speakers.
The Ordinance is now presented for second reading and adoption by title only
Vote at first reading: AYES: MULLIN, LEONARD, FRANK, GROSCH, VAUS
ABSTAINED: NONE
ABSENT: NONE
DISQUALIFIED: NONE
Recommended Action:
It is recommended that the City Council adopt Ordinance No. 827.
Fiscal Impact:
The Ordinance itself would not have a direct fiscal impact. However, the Ordinance does provide
the City with the ability to levy increased administrative citations and enhance its ability to recover
costs associated with public nuisance abatement.
Environmental Review:
The adoption of the proposed Ordinance is not a "project" that is subject to CEQA review because
it will not result in direct physical change in the environment, or a reasonably foreseeable indirect
physical change in the environment.
1 of 63 April 2, 2019, Item #1.5
Public Notification:
A summary notice was published in the Poway News Chieftain on Thursday, March 28, 2019. A
second summary notice will be published in the same publication on Thursday, April 11, 2019. A
certified copy of this Ordinance will also be posted in the Office of the City Clerk in accordance
with Government Code section 36933.
Attachment:
A. Ordinance No. 827
Reviewed/Approved By:
Wendy Kaserman
Assistant City Manager
Reviewed By:
Alan Fenstermacher
City Attorney
Approved ,B
Tina M. White
City Manager
2 of 63 April 2, 2019, Item #1.5
ORDINANCE NO. 827
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA,
AMENDING CHAPTERS 1.02, 1.08, 1.10, 2.20, 8.72, 8.76, 8.80,
13.09, 15.02, AND 17.54 ADDING CHAPTERS 15.03 AND 15.32,
AND DELETING CHAPTERS 16. 56, 16.68 AND 8.84 OF THE
POWAY MUNICIPAL CODE RELATING TO CODE COMPLIANCE
WHEREAS, the City Council desires to protect its citizens' health, safety and welfare, and
enhance the quality of life for all of the City's residents;
WHEREAS, the City Council finds that effectively ensuring compliance with the Poway
Municipal Code protects the health, safety and welfare of its residents, businesses, and visitors,
particularly including the efficient abatement of public nuisances and limiting the accumulation of
junk on private property;
WHEREAS, the City Council wishes to ensure that the Poway Municipal Code continues
to comply with all applicable state and federal law, and update the Code so that it accurately
reflects realities on the ground;
WHEREAS, the City Council finds that enhancing its ability to impose citations, recover
costs incurred relating to Code Compliance, and streamlining its administrative and appeals
processes will protect the public fisc;
WHEREAS, the City Council desires to afford all property owners with sufficient
procedural and substantive due process;
WHEREAS, the City Council declares that the regulations enacted by this Ordinance are
in furtherance of the City's police powers;
WHEREAS, the City Council finds that the amendments to the Poway Municipal Code
proposed by this Ordinance, set forth in Exhibit "1," will serve all of the above -stated purposes,
thereby resulting in increased compliance with the Poway Municipal Code throughout the City;
WHEREAS, for ease of both the City Council and the public, a "redline" document
comparing the relevant existing provisions of the Poway Municipal Code with the amendments
proposed by the Ordinance is attached hereto as Exhibit "2;"
WHEREAS, at the regular meeting of the City Council of the City of Poway held on the
19th day of March 2019 the City Council held a public hearing and introduced this Ordinance for
a first reading; and
WHEREAS, at the regular meeting of the City Council of the City of Poway held on the
2nd day of April 2019, the City Council of the City of Poway conducted a second reading and
adopted the Ordinance.
3 of 63 April 2, 2019, Item #1.5
NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN
AS FOLLOWS:
SECTION 1: The foregoing recitals are true and correct.
SECTION 2: Chapters 1.02, 1.08, 1.10, 2.20, 8.72, 8.76, 8.80, 13.09, 15.02 and 17.54
of the Poway Municipal Code are hereby replaced in their entirety, to read as set forth in Exhibit
1" hereto.
SECTION 3: The Poway Municipal Code is hereby amended to add Chapters 15.03 and
15.32 to read as set forth in Exhibit "1" hereto.
SECTION 4: The Poway Municipal Code is hereby amended to delete Chapters 16.56,
16.68 and 8.84 in their entirety.
SECTION 5: If any section, subsection, sentence, clause or phrase of this Ordinance is
for any reason held to be unconstitutional or otherwise invalid, such invalidity shall not affect the
validity of this entire Ordinance or any of the remaining portions hereof. The City Council
hereby declares that it would have passed this Ordinance, and each section, subsection,
subdivision, sentence, clause or phrase hereof, irrespective of the fact that any one or more
sections, subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional
or otherwise invalid.
SECTION 6: The City Council finds the introduction and adoption of this ordinance is
not a "project' subject to the California Environmental Quality Act ("CEQA").
SECTION 7: This Ordinance shall be codified.
EFFECTIVE DATE: This Ordinance shall be in full force and effect thirty (30) days after its
adoption.
CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance
and cause it, or a summary of it, to be published with the names of the City Council members voting
for and against the same in the Poway News Chieftain, a newspaper of general circulation in the
City of Poway, within fifteen (15) days after its adoption and shall post a certified copy of this
Ordinance in the Office of the City Clerk in accordance with Government code § 36933.
Introduced and first read at a regular meeting of the City Council of the City of Poway,
California, held on the 19th day of March 2019, and thereafter, PASSED, APPROVED, AND
ADOPTED at a regular meeting of said City Council of the City of Poway held on the 2nd day of
April 2019.
Steve Vaus, Mayor
4 of 63 April 2, 2019, Item #1.5
ATTEST:
Faviola Medina, CMC, City Clerk
STATE OF CALIFORNIA )
SS
COUNTY OF SAN DIEGO )
I, Faviola Medina, City Clerk of the City of Poway, California, do hereby certify that the
above and foregoing Ordinance No. 827 was adopted at a regular meeting of the City Council of
the City of Poway, held on the 19th of March 2019, by the following vote
AYES:
NOES:
ABSENT:
DISQUALIFIED:
Faviola Medina, City Clerk
City of Poway
5 of 63 April 2, 2019, Item #1.5
Chapter 1.02
CODE ADOPTION
1.02.010 Title — Citation — Reference.
This code shall be known as the "Poway Municipal Code' and it shall be sufficient to refer to said code as
the "Poway Municipal Code' or "PMC" in any prosecution for the violation of any provision thereof or in any
proceeding at law or equity. It shall be sufficient to designate any ordinance adding to, amending, correcting
or repealing all or any part or portion thereof as an addition to, amendment to, correction or repeal of the
Poway Municipal Code" or 'PMC." Further reference may be had to the titles, chapters, sections and
subsections of the "Poway Municipal Code' or "PMC and such references shall apply to that numbered
title, chapter, section or subsection as it appears in the code.
1
6 of 63 Exhibit 1 April 2, 2019, Item #1.5
Chapter 1.08
GENERAL PENALTY
Sections:
1.08.010 Violation —Penalty.
1.08.020 Appeal of Administrative Citation
1.08.010 Violation — Penalty.
A. It is unlawful for any person, or any responsible person, to violate any provision or to fail to comply
with any of the requirements of this code, the zoning development code, or of any ordinance adopted by
the City.
B. Notwithstanding any provisions to the contrary, a violation of any of the provisions or requirements
of this code, the zoning development code, or any ordinance adopted by the City shall constitute a
misdemeanor; provided, however, that any such violation constituting a misdemeanor may, in the discretion
of the attorney having prosecutorial functions, be charged and prosecuted as an infraction. Alternatively,
the City may enforce the provisions of this code by any remedy available under applicable law.
C. Causing, permitting, aiding, or abetting noncompliance with any part of the Poway Municipal Code
shall also constitute a violation of this chapter. Any falsification or misrepresentation made to the City
concerning compliance with this chapter, including any misrepresentation in a voluntary disclosure, any
submission of a report that omits required material facts without disclosing such omission, and any
withholding of information required to be submitted by or pursuant to this chapter in order to delay City
enforcement action, is a violation of this chapter. Concealing a violation of this chapter is a violation of this
chapter.
D. Prior to issuing a citation for a violation of this code that does not create an immediate danger to
health or safety, the enforcement officer may serve a pre -citation or courtesy notice to the responsible
person for the violation containing, when available, the following information:
1) The date the violation was observed;
2) The address or a definite description of the location where the violation was observed;
3) The section of this code violated and a brief description of the violation;
4) The compliance date by which the violation shall be corrected or otherwise remedied,
which shall be no less than fifteen days and no more than sixty days from the date the pre -
citation notice is given, as determined to be reasonable by the code enforcement official;
5) A statement that if the violation is not corrected by the specified compliance date, that an
administrative citation may be issued which imposes a fine, in the amount of which will be
specified; and
2
7 of 63 April 2, 2019, Item #1.5
6) The name, signature and department of the enforcement officer issuing the pre -citation
notice.
E. After the compliance date has lapsed of a pre -citation or courtesy notice, the enforcement officer
may serve a written notice on the violator personally or mail to the address at which, in the opinion of the
enforcement officer such notice is most likely to be received by the violator. Such notice shall provide the
nature of the violation and that the violator is required to abate or correct the condition constituting the
violation within a reasonable timeframe as determined by the enforcement officer, unless in the opinion of
the Director of Development Services, a shorter period of time is required, but in no case less than 10 days.
After the reasonable timeframe provided in the notice of violation has elapsed, the enforcement officer may
seek any additional remedies allowed by the PMC to correct the violation within a reasonable timeframe.
F. In addition to notice issued to the responsible person, when time permits and when practical, the
owner of the property on which the violation occurred shall be sent notice(s) at the same time as the notices
to the responsible person to the address of the said property owner as it appears on the last equalized
assessment roll or, alternatively, as it appears from such other records of the Assessor or City Treasurer
that contain more recent addresses.
G. Any responsible person or other person convicted of a misdemeanor under the provisions of this
code, the zoning development code, or of any ordinance adopted by the City, unless provision is otherwise
made, shall be punishable by a fine of not more than $1,000, by imprisonment in the County jail for a period
of not more than six months or by both fine and imprisonment. Any responsible person convicted of an
infraction under the provisions of this code, the zoning development code, or any ordinance adopted by the
City, unless provision is otherwise made, shall be punishable by fine in accordance with Government Code
section 36900, as may be amended
Each responsible person who violates any provision or fails to comply with any of the requirements of this
code, the zoning development code, or any ordinance adopted by the City, shall be charged by a separate
offense for each and every day during any portion of which any violation is committed, continued or
permitted by any such responsible person and shall be punished accordingly.
H. In addition to the penalties provided in this section, any condition caused or permitted to exist in
violation of any of the provisions of this code, the zoning development code, or any ordinance adopted by
the City, shall be deemed a public nuisance and may be, by the City, abated as such, and each day that
such condition continues shall be regarded as a new and separate offense.
I. Pursuant to Government Code Section 36900, the City Council, in the alternative to subsections A,
B, and C of this section, may redress a violation of any State or local ordinance by civil action. Civil action
by the City Council may include the following, in addition to any other civil remedy allowed under the laws
of the State and the United States: forfeiture of any or all permits, licenses, approvals and privileges or
benefits of any nature granted by the City.
8 of 63 April 2, 2019, Item #1.5
J. The prevailing party in any action or proceeding involving a public nuisance shall be entitled to
recover all of its reasonable costs and expenses incurred with respect to said action, including without
limitation its costs of investigation and discovery, attorneys' fees, and expert witness fees.
K. "Person," as referred to in this section, includes individuals, corporations, partnerships, and
organizations of any kind.
L. "Responsible person" means any person, including but not limited to any person who is the owner
or occupant of or who controls, possesses, occupies, or has an interest in real property, the holder or the
agent of the holder of any permit, entitlement, or review, or the party or agent of a party to any agreement
covered by this chapter; the owner or authorized agent of any business, company, or entity subject to this
chapter; or the parent or legal guardian of any such person under the age of 18 years; who violates any
ordinance, regulation, permit, entitlement, review, or agreement described in PMC Section 1.10.030.
M. Citation for Infraction. As an alternative to a misdemeanor prosecution, the Director of Development
Services or his/her designee, the Director of Public Works or his/her designee, the Director of Community
Services or his/her designee, or the Director of Safety Services or his/her designee may issue a criminal
infraction citation to the responsible person(s) or any other person deemed responsible for violating any
provisions of the Poway Municipal Code. For purposes of this subsection, any such violation shall be
classified as an "infraction," pursuant to California Government Code Section 36900, which section and the
penalties prescribed are adopted and incorporated in this section. For the purposes of enforcing the
provisions of this code and other regulations, the Director of Development Services or his/her designee,
the Director of Public Works or his/her designee, or the Director of Safety Services or his/her designee, and
the Director of Community Services or his/her designee are deemed to be public officers, as described in
California Penal Code Section 836.5.
N. Administrative Citation. Upon a finding by the City official vested with the authority to enforce the
various provisions of this code that a violation exists, he or she may issue an administrative citation under
the provisions of PMC Chapter 1.10.
O. Arrest or Issue Citations. The assistance of a peace officer may be enlisted to arrest violators or
issue a criminal citation and notice to appear as prescribed in the California Penal Code, including
Section 853.6. There is no requirement that administrative enforcement remedies be exhausted or
otherwise used prior to such actions being taken. The immunities prescribed in Section 836.5 of the Penal
Code are applicable to authorized enforcement officials acting in the course and scope of their employment
pursuant to this chapter.
P. Injunctive Relief. The City may enforce compliance with this section by judicial action for injunctive
relief.
Q. Cease and Desist Orders. Written orders, verbal orders or both may be issued to stop unauthorized
actions. If it is determined by an authorized enforcement official that the public interest requires the posting
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9 of 63 April 2, 2019, Item #1.5
of a bond or other security to assure the violation is corrected, such bond or security may be required by
the authorized enforcement official.
R. Notice and Order to Perform. Written orders, verbal orders or both may be issued to perform
activities to comply with the Poway Municipal Code or a resolution of approval by the City Council, or as
directed by an authorized enforcement official where conditions warrant.
S. Stop Work Orders. Whenever any work is being done contrary to the provisions of this chapter, or
other laws implemented through enforcement of this chapter, an authorized enforcement official may order
the work stopped by notice in writing served on any person engaged in the doing or causing such work to
be done, and any such person shall immediately stop such work until authorized by the authorized
enforcement official to proceed with the work. Failure to comply with the specified order shall require double
payment of permitting fees, an additional inspection fee, the filing of a complaint with the State Contractor
License Board against the responsible person and/or relevant licensee, and a criminal citation.
T. Permit Suspension or Revocation. Violations of this chapter may be grounds for the suspension or
revocation of a permit and other City license pursuant to PMC section 1.08.010(1).
U. Penalties and Remedies Not Exclusive. Penalties and remedies under this section may be
cumulative and in addition to other administrative, civil or criminal remedies.
V. Recorded Notice of Violation. The enforcement officer may, at its sole discretion, in addition to or
in place of civil and criminal penalties, cause to be recorded with the County Recorder a notice of violation
in a form acceptable to the City Attorney. This notice of violation may provide for denial of any application
for approval by the City until the original violation has been corrected in accordance with City regulations in
effect at the time of correction. Any correction shall be done under the authority of a valid permit issued, as
applicable. A notice of violation shall be expunged only after completion of all work necessary to correct the
original and all subsequent violations of the Poway Municipal Code.
1.08.020 Appeal of administrative citation.
In accordance with Chapter 2.20 of the Poway Municipal Code, any recipient of an administrative citation
may appeal an administrative citation to contest that there was a violation of any ordinance, regulation,
permit, entitlement, or agreement covered by this chapter, or that he or she is the responsible person.
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Chapter 1.10
ADMINISTRATIVE CITATIONS AND PENALTIES
Sections:
1.10.010 Legislative findings and statement of purpose.
1.10.020 Definitions.
1.10.030 Issuance of administrative remedies.
1.10.040 Service procedures.
1.10.050 Contents of citation.
1.10.060 Satisfaction of administrative citation.
1.10.070 Appeal of administrative citation.
1.10.080 Failure to pay fines.
1.10.090 Reduction of cumulative fines.
1.10.100 Late payment charges.
1.10.110 Procedural compliance.
1.10.010 Legislative findings and statement of purpose.
A. The City Council hereby finds that there is a benefit to having an alternative method of enforcement
of the Poway Municipal Code, conditions imposed on permits, entitlements, and CEQA reviews, and the
terms of City agreements made pursuant to the City's constitutional police power. The City Council further
finds an alternative method of enforcement is the imposition of administrative penalties as independently
authorized by both California Constitution Article XI, Section 7, and Government Code Section 53069.4.
B. The procedures established in this chapter shall be in addition to criminal, civil or any other legal
remedy established by law for violation of the Poway Municipal Code or permit and entitlement conditions.
Issuance of a citation pursuant to this chapter shall not preclude enforcement by a separate criminal, civil
action, or any other proceeding authorized by law.
C. The City Council hereby finds and determines that enforcement of the Poway Municipal Code, other
ordinances adopted by the City, conditions of approval of entitlements, permits, and CEQA reviews, and
terms and conditions of City agreements made pursuant to the police power is a matter of public health,
safety and welfare and serves important public purposes. The City of Poway adopts this administrative
penalties program in order to achieve the following goals:
1. To protect the public health, safety and welfare of the citizens of the City;
2. To gain compliance with the Poway Municipal Code, ordinances, agreements, and regulations of
the City enacted pursuant to its police powers, and the conditions of approval of permits, entitlements,
and CEQA reviews granted by the City pursuant to the City's police powers in a timely and efficient
manner;
3. To provide for an administrative process to appeal the imposition of administrative citations and
fines;
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4. To provide a method to hold parties responsible when they fail or refuse to comply with the
provisions of the Poway Municipal Code, ordinances, agreements, or terms and conditions of
entitlements or permits enacted or approved pursuant to the police power; and
5. To avoid or minimize the expense and delay of enforcement in the civil or criminal justice system.
Ord. 557 § 2, 2002)
1.10.020 Definitions.
A. "Enforcement officer" means any officer, employee, or agent of the City with the authority to enforce
the Poway Municipal Code, including but not limited to a code compliance officer, inspector, and the Fire
Marshal.
B. "Person," as referred to in this section, includes individuals, corporations, partnerships, and
organizations of any kind.
C. 'Responsible person" means any person, including but not limited to any person who is the owner
or occupant of or who controls, possesses, occupies, or has an interest in real property, the holder or the
agent of the holder of any permit, entitlement, or review, or the party or agent of a party to any agreement
covered by this chapter; the owner or authorized agent of any business, company, or entity subject to this
chapter; or the parent or legal guardian of any such person under the age of 18 years; who violates any
ordinance, regulation, permit, entitlement, review, or agreement described in PMC section 1.10.030.
1.10.030 Issuance of administrative remedies.
A. Any responsible person who violates any provision of the Poway Municipal Code or regulation of
the City, any condition of approval of a permit or entitlement, any condition of an environmental review, or
any term or condition of any agreement with the City made pursuant to the police power may be issued an
administrative citation by an enforcement officer as provided in this chapter. A violation of the Poway
Municipal Code includes, but is not limited to, all violations of that code, the Uniform Codes adopted by the
City Council, and all uncodified ordinances. A violation of a condition of approval of a permit or entitlement,
includes, but is not limited to, a conditional use permit, minor conditional use permit, temporary use permit,
development review, sign permit, variance, specific plan, parcel map, subdivision map, building or grading
permit, any plan, permit or any best management practice authorized, issued or required by PMC
Chapter 13.09 , any encroachment or right-of-way permit, any license or permit issued pursuant to PMC
Title 5, any drug paraphernalia license issued pursuant to PMC Chapter 9.08 , and any adult oriented
business regulatory permit required by PMC Chapter 17. 38. A violation of a condition of approval of an
environmental review includes, but is not limited to, any environmental impact report, mitigated negative
declaration, negative declaration, or determination of categorical exemption. A violation of a term or
condition of any agreement with the City made pursuant to the police power includes, but is not limited to,
any development agreement, owner participation agreement, disposition and development agreement,
road maintenance agreement, any easement, license, or other real property use agreement, or any
agreement made with the City to implement any ordinance, plan, permit, entitlement, or review approved
by the City. Causing, permitting, aiding, or abetting noncompliance with any part of the Poway Municipal
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Code constitutes a violation of this chapter. Any falsification or misrepresentation made to the City
concerning compliance with this chapter, including any misrepresentation in a voluntary disclosure, any
submission of a report that omits required material facts without disclosing such omission, and any
withholding of information required to be submitted by or pursuant to this chapter in order to delay City
enforcement action, is a violation of this chapter. Concealing a violation of this chapter is a violation of this
chapter.
B. Each and every day a violation exists constitutes a separate and distinct offense.
C. Administrative Citations. A separate citation may be issued for each day a violation occurs. A civil
fine shall be assessed by means of an administrative citation issued by the enforcement officer and shall
be payable directly to the City of Poway. Fines shall be assessed in amounts not to exceed $1,000. 00 for
each violation, or as follows:
1. A fine not exceeding $100.00 for a first violation;
2. A fine not exceeding $200.00 for a second violation of the same ordinance, term, or condition
within one year from the date of the first violation;
3. A fine not exceeding $500.00 for a third violation of the same ordinance, term, or condition within
one year from the date of the first violation;
4. A fine not exceeding $1,000 for each additional violation after the third violation of the same
ordinance, term or condition within one year from the date of the first violation.
1.10.040 Service procedures.
An administrative citation on a form approved by the City Manager may be served upon any responsible
person by an enforcement officer in the following manner:
A. Personal Service. In any case where an administrative citation is issued:
1. The enforcement officer may attempt to locate and, if reasonable, personally serve the responsible
person and obtain the signature of the responsible person on the administrative citation.
2. If the responsible person served refuses or fails to sign the administrative citation, the failure or
refusal to assign shall not affect the validity of the administrative citation or of subsequent
proceedings.
B. Service of Citation by Mail. If the enforcement officer is unable to locate a responsible person, the
administrative citation shall be delivered to the responsible person by first class mail.
C. Service of Citation by Posting Notice. If the enforcement officer does not succeed in personally
serving a responsible person, or by first class mail, the enforcement officer shall post the administrative
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citation on any real property within the City in which the City has knowledge that the responsible person
has a legal interest, and such posting shall be deemed effective service.
1.10.050 Contents of citation.
Each administrative citation shall contain the following information, if readily available:
A. The date of issuance of the citation and the date, approximate time, and address or definite
description of the location where the violation(s) was observed, where applicable;
B. The code sections or conditions violated and a brief description of the violation(s),
C. An order to the responsible person to correct the violations by a specified correction date, if
applicable, and an explanation of the consequences of failure to correct the violation(s);
D. The amount of the fine for each violation;
E. An explanation of how the fine shall be paid and the date by which it shall be paid (15 days after
the correction date);
F. Identification of the right of appeal, including the time within which the citation may be contested
and the place to obtain a request for hearing form to contest the administrative citation;
G. The name and signature of the enforcement officer and if possible the signature for the responsible
person; and
H. A statement that if the fine is not timely paid, a late payment charge of 50 percent of the amount of
the fine will be added to the fine.
1.10.060 Satisfaction of administrative citation.
Upon receipt of a citation, the responsible person must do both of the following:
A. Pay the fine to the City within 15 days from the correction date of the administrative citation. All
fines assessed shall be payable to the City of Poway. Payment of a fine shall not excuse or discharge the
failure to correct the violation(s) nor shall it bar further enforcement action by the City.
B. Remedy the violation(s), if the violation(s) is of such a nature that it can be remedied.
If the responsible person fails to correct the violation(s), subsequent administrative citations may be issued
for the same violation(s) or a criminal or civil action may be filed.
1.10.070 Appeal of administrative citation.
A. Any recipient of an administrative citation may contest that there was a violation of any ordinance,
regulation, permit, entitlement, or agreement covered by this chapter, or that he or she is the responsible
person in accordance with PMC Chapter 2.20.
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1.10.080 Failure to pay fines.
The failure of any responsible person to pay the civil fines imposed by an administrative citation within the
time specified on the citation may result in the fling of a claim with either the Small Claims Court or the
Superior Court for recovery of the fine or send the debt to a collection agency. The only issue to be
adjudicated by the court shall be whether or not the fines were paid. A responsible person cited may only
obtain judicial review of the validity of the citation by writ of mandate after exhausting their administrative
remedies by requesting and participating in an administrative hearing before a Hearing Officer in
compliance with the procedural requirements for such process in accordance with PMC Chapter 2.20. In
the court action, the prevailing party may also recover its collection costs, including the cost of the Hearing
Officer, and any court fees, according to proof.
1.10. 090 Reduction of cumulative fines.
If the violation is corrected within a reasonable time after the decision of the Hearing Officer, the City
Manager shall have the discretion to reduce any cumulative fines upon good cause shown by the
responsible person. The determination of the City Manager shall be final and shall not be subject to appeal
or judicial review. Fines shall not otherwise be reduced.
1.10.100 Late payment charges.
Any responsible person who fails to pay a fine imposed by this chapter on or before the date that payment
is due, shall also be liable for the payment of a late payment charge of 50 percent of the fine.
1.10.110 Procedural compliance.
Failure to comply with any procedural requirement of this chapter, to receive any notice or decision specified
in this chapter, or to receive any copy required to be provided by this chapter shall not affect the validity of
proceedings conducted hereunder unless the responsible person is denied constitutional due process
thereby.
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Chapter 2.20
ADMINISTRATIVE APPEALS
Sections:
2.20.010 Scope.
2.20.020 Filing of appeal.
2.20.030 City response.
2.20.040 Conduct of hearing.
2.20.050 Deposits.
2.20.060 Hearing Officer.
2.20.070 Hearing procedure.
2.20.080 Hearing officer's decision.
2.20.090 Right to judicial review.
2.20.010 Scope.
Except for personnel matters, legal determinations, and as expressly otherwise provided to the contrary in
this code, any interested person may appeal the final decision of any officer, board, committee, commission
or department subordinate to the Hearing Officer in accordance with the provisions of this chapter.
2.20.020 Filing of appeal.
A. To be sufficient for filing, the written appeal must be delivered to the City Clerk, together with the
fee established by resolution and any other amount due pursuant to Section 2.20.050, within 10 calendar
days following the decision for which a review is sought. If the day falls on Saturday, Sunday or other day
when City Hall is closed, the deadline shall be extended to 5:00 p.m. of the next working day.
The appeal must be legible and set forth:
1. The appellant's full name, address and phone number;
2. The subordinate entity;
3. The date of the determination;
4. The determination for which review is sought;
5. The appellant's interest in the appealed determination;
6. Each reason why the appellant appeals the determination including, if applicable, the Poway
Municipal Code Sections that are to be appealed; and
7. Be accompanied by the appeal fee established by resolution.
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B. An insufficient appeal shall be returned to the appellant.
C. If the appeal is sufficient, the City Clerk shall set the matter for consideration by the Hearing Officer
to be held in accordance with PMC Section 2.20.070.
D. The City Clerk shall mail the appeal document to the applicant, if appropriate, or other real party in
interest, with notice of the time, date and location of the hearing and notice of the opportunity to submit a
written response to the appeal request at least 14 calendar days prior to the initial consideration by the
Hearing Officer. The City reserves the right to reschedule the hearing date as needed. In such cases,
notice of the change will immediately be communicated to the appellant.
E. The City Clerk shall deliver a copy of the appeal document to the appropriate City department which
will prepare a City response to the request for the appeal.
2.20.030 City response.
The City's response to the appeal document and any written position submitted by the applicant or real
party in interest shall be made available to the public, at City Hall, no less than seven calendar days prior
to the date set for consideration by the Hearing Officer if received by the City Clerk by that date.
2.20.040 Conduct of hearing.
The Hearing Officer shall hear all facts and testimony deemed appropriate and consider the appeal, the
written position of the applicant or real party in interest, the City response, and any other written or oral
comments from members of the public. No noticed public hearing shall be required unless specifically
required by this code. The appeal hearing shall be conducted in accordance with the applicable provisions
of this Chapter and constitutional due process. The Hearing Officer may grant in whole or in part, or may
deny the appeal. The determination of the Hearing Officer shall constitute a final decision. The Hearing
Officer's decision shall be issued in writing within 60 days of the hearing.
2.20.050 Deposits.
A. The request for hearing shall be accompanied by a deposit in the full amount of any required or
past due fee or fine. Any deposit shall be refunded within 10 days of a determination, after a hearing, that
the responsible person charged was not responsible for the amount due as charged in the final decision.
B. Upon the submittal of a hardship waiver affidavit by a responsible person within the appeal period
requesting a waiver of any fee or fine, the City Manager shall issue a letter granting or denying the request.
If waiver is denied, the appeal shall be dismissed unless the full amount of the fine is deposited and unless
any outstanding fees and fines is paid within five days of the date of the letter. The determination of the City
Manager shall be final and shall not be subject to appeal or judicial review.
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2.20.060 Hearing Officer.
The Poway City Manager shall designate the Hearing Officer for the appeal hearing. The compensation of
the Hearing Officer, if any, shall be paid by the City in accordance with the adopted Master Fee Schedule.
Compensation shall not be directly or indirectly conditioned upon whether or not appeals are upheld by the
Hearing Officer.
Any person, firm or corporation designated to serve as a Hearing Officer is subject to disqualification for
bias, prejudice, interest, or for any other reason for which a judge may be disqualified pursuant to Code of
Civil Procedure § 170.1. The appellant may challenge the Hearing Officer's impartiality prior to the hearing
by filing a statement with the City Manager objecting to the hearing before the Hearing Officer and setting
forth the grounds for disqualification. The question of disqualification shall be heard and determined in
writing by the City Manager within ten days following the date on which the disqualification statement is
filed. If a disqualification statement is filed, all time periods set forth in section 2.20.070 and 2.20.080 shall
be extended by ten days.
2.20.070 Hearing procedure.
A. No appeal hearing before a Hearing Officer shall be held unless and until an appeal request has
been completed and submitted in accordance with PMC Section 2.20.020, and the deposit has been made
pursuant to PMC Section 2.20.050 or hardship waiver granted.
B. A hearing before the Hearing Officer shall be set for a date that is not sooner than 15 and not more
than 90 days from the date that the request for hearing is filed in accordance with the provisions of this
chapter. The appellant shall be notified of the time and place set for the hearing, and the name of the
Hearing Officer, at least 10 days prior to the date of the hearing.
C. The Hearing Officer shall only consider evidence that is relevant to the matters on appeal.
Courtroom rules of evidence shall not apply. Relevant hearsay evidence and written reports may be
admitted whether or not the speaker or author is present to testify on condition that the Hearing Officer
determines that the evidence is reliable. Admission of evidence and the conduct of the hearing shall be
controlled by the Hearing Officer in accordance with the fundamentals of due process.
D. The appellant shall be given the opportunity to testify and present witnesses and evidence
concerning the administrative citation. The City's case shall be presented by the Development Services
Director or designee, an enforcement officer or by the City Attorney. The appellant may be represented by
counsel, but the City shall be notified in writing of such representation at least seven days prior to the appeal
hearing.
E. The failure of the appellant to appear at the hearing shall constitute a forfeiture of appeal rights
described in PMC Chapter 2.20 and the appellant will forfeit the deposit described in PMC Section 2.20.050
as payment associated with the final decision. Upon a showing of good cause by the appellant in writing to
the Hearing Officer and prior to the hearing, the Hearing Officer may excuse the offender's failure to appear
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at the hearing and reschedule the hearing. Under no circumstances shall the hearing be rescheduled more
than one time. Nothing in this Section shall be interpreted to mean the offender is excused from the
requirement of paying the fees and/or fines or appearing at a hearing.
F. Any documents prepared by the City in connection with the final decision shall constitute prima
facie evidence of the respective facts contained in those documents.
G. If the appellant submits to the city a written request, the City shall provide to the appellant copies
of all documents that it intends to introduce at the hearing. Such copies shall be provided to the appellant
within five days prior to the hearing or a lesser period upon a showing of cause. If, after copies of documents
have been provided to appellant, the City determines to submit to the Hearing Officer additional documents
then, whenever possible, a copy of such documents shall be provided to the appellant prior to the hearing.
H. The hearing is intended to be informal in nature. Formal rules of the California Evidence Code and
discovery shall not apply, except that irrelevant and unduly repetitious evidence may be excluded at the
Hearing Officer's discretion.
I. Each party shall have the opportunity to offer testimony and evidence and cross-examine witnesses
in support of his or her case.
J. The Hearing Officer may continue the hearing and request additional information from the
enforcement officer or the appellant prior to issuing a written decision.
2.20.080 Hearing officer's decision.
A. After considering all of the testimony and evidence submitted at the hearing, the Hearing Officer
may announce a decision orally, but in any event, shall prepare a written decision. The decision shall be
provided to the parties within 10 days of the hearing and shall either affirm, amend or dismiss the final
decision. The decision shall briefly state the reasons for the conclusion of the Hearing Officer. The City
shall serve the decision on the appellant in accordance with PMC Section 1.10.040.
B. If the Hearing Officer upholds the citation issuance, then the deposit with the City shall be retained
by the City. If a hardship waiver was granted, the decision shall set forth a payment schedule for the fine.
C. If the Hearing Officer dismisses the final decision, then the City shall promptly refund the deposit
or fees as applicable to the final decision. This shall not include other fines or fees that were not directly
associated with the appeal.
D. The Hearing Officer shall not have the power to reduce fees or the fine.
2. 20.090 Right to judicial review.
Either the City or the appellant aggrieved by a decision of a Hearing Officer on an administrative citation
may obtain review of the decision by filing a petition for review with the San Diego Superior Court in
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accordance with the timelines and provisions as set forth in California Government Code Section
53069.4(b). Said procedure shall be available for all judicial review under this chapter, notwithstanding that
the term or condition being enforced pursuant to this chapter may not be a matter covered by Section
53069.4(a). Judicial review of a citation shall not be available without first participating in a hearing as
provided in this chapter.
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Chapter 8.72
NUISANCE ABATEMENT PROCEDURE
Sections.
8.72.010 Findings.
8.72.020 Nuisance defined.
8.72.030 Procedure.
8.72.010 Findings.
California Government Code Sections 38773 through 38773.7 allow the City to establish a procedure for
the abatement of a nuisance and charge the cost of said abatement upon a parcel of land by way of lien or
special assessment. The City Council finds that this procedure under certain circumstances would be in the
best interest of the general health, safety, and welfare of the City in that a nuisance may be eliminated at
no cost to the public.
8.72.020 Nuisance defined.
A " nuisance" includes but is not limited to the violation of any ordinance, resolution, regulation or policy
adopted by the City Council, as defined within any such ordinance, resolution, regulation or policy, or any
condition within the City found to be a potential threat to the general health, safety and welfare of the public.
8.72.030 Procedure.
A. The City Manager, or his/her designee, shall notify, in writing, the responsible person(s) of any
parcel upon which is believed to exist a public nuisance that said nuisance exists. Said nuisance may be
directly upon said parcel, an easement, or license benefiting said property or adjacent thereto if, in the
opinion of the City Manager, or his/her designee, the nuisance was created by, or for the direct or indirect
use or benefit of, the parcel or parcel owner. If a nuisance is believed to exist within the City and, in the
opinion of the City Manager or his/her designee, is caused by, created for, directly or indirectly, the owner
of a parcel of land within the City, then, in that event, the owner of that parcel, in addition to being notified
to abate the nuisance, shall be notified that if said nuisance is abated with cost to the City, that the cost
shall be reimbursed to the City, and if not, shall be assessed to that owner's parcel.
B. The notice referred to in this chapter shall be sent first class mail to the owner of record on the last
published assessment tax roll of the County Assessor's office. The notice shall specify the nuisance
believed to exist together with a request to abate same and advise the responsible person of the right to a
public hearing before the Hearing Officer as described in Chapter 2.20 of the City of Poway Municipal Code.
C. If the owner timely requests a hearing, and following the hearing, a nuisance is determined to exist,
the Hearing Officer shall specify in his/her decision the time allowed to abate the same by the responsible
party and/or owner.
D. If the nuisance is not abated within the time specified by the Hearing Officer or, if the owner does
not request a hearing and fails to fully abate the violations within the deadline established by the notice
described in section 8.72.030(A), then a hearing may be held before the City Council to declare the property
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a public nuisance. If the City Council determines that a public nuisance exists, it shall adopt a resolution
declaring the property a public nuisance. The City shall provide the owner a copy of the resolution, and if
the owner fails to fully abate the public nuisance within thirty 30 days of the adoption of the resolution, the
City may abate the nuisance.
E. Following abatement of any public nuisance, the City may place before the City Council invoice(s)
for any abatement costs for City Council confirmation, including administrative costs, attorneys' fees,
expenses, and reasonable interest therefor, from the date of said abatement.
F. If the abatement costs are not reimbursed to the City within 60 days of the date of the City Council
confirmation, the City may assess a lien on the property or a special assessment against the property owner
or responsible person. The lien and/or special assessment shall be collected at the same time and in the
same manner as ordinary municipal taxes are collected and shall be subject to the same penalties and the
same procedure and sale in the case of delinquency as provided for ordinary municipal taxes. All laws
applicable to the levy, collection and enforcement of liens and special assessment shall be applicable.
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Chapter 8.76
DEFENSIBLE SPACE, VEGETATION MANAGEMENT AND WASTE ACCUMULATIONS
Sections:
8.76.010 Purpose and intent.
8.76.015 Definitions.
8.76.020 Discretion.
8.76.030 Defensible space — Highly flammable chaparral vegetation.
8.76.035 Vegetation management —Weeds and dry grasses.
8.76.040 Waste matter.
8.76.050 Notice to clean premises.
8.76.060 Service of notice to clean premises.
8.76.080 Time limit for abatement of nuisance.
8.76.090 Abatement of nuisance by Director of Development Services or Fire Marshal.
8.76.100 Obligation of City Clerk.
8.76.110 Hearing before City Council.
8.76.120 Payment prior to hearing.
8.76.130 Government Code provisions adopted, and collection of assessments.
8.76.010 Purpose and intent.
The City of Poway is at serious risk of wildfire due to its terrain, with steep mountainous slopes and valleys;
a warm, dry climate; and highly flammable chaparral vegetation. For this reason, a comprehensive strategy
for reducing the risk of wildfire is necessary. This strategy includes the creation of defensible space by
clearing highly flammable chaparral vegetation around structures, and the Vegetation Management
Program, involving the removal of weeds and dry grasses from private property.
The public health and safety are also threatened by the accumulation of waste material that is left out in the
open, such as rubbish, crates, cartons, metal and glass containers, and vehicle bodies and parts. This
chapter also provides for the abatement of accumulated waste material that has been determined to be a
public nuisance.
The portions of this chapter related to defensible space shall be interpreted and implemented in a manner
consistent with the City's Wildfire Defensible Space Program Policy.
8.76.015 Definitions.
For purposes of this chapter, the words set out in this section shall have the following meanings:
Clearing," "brushing" or "grubbing" means the complete removal of vegetation to bare soil and is not a
permitted activity to comply with the requirements of this chapter.
Defensible space" means an area that is either natural or manmade, where material capable of allowing a
fire to spread unchecked has been treated or modified to slowthe rate and intensity of an advancing wildfire,
it:
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and to allow an area for fire suppression operations. Defensible space does not require clearing, brushing,
grubbing, grading or the exposure of bare soil.
Director of Development Services" means the Director of Development Services or his or her designee.
Fire Marshal" means the Fire Marshal or his or her designee.
Fuel, light" means vegetation consisting of herbaceous plants and round wood less than one -quarter -inch
in diameter. Light fuels include, but are not limited to, western grasslands vegetated by annual or perennial
grasses and/or weeds.
Heritage tree" means any mature tree or mature stand of trees designated by the City Council as having
historic or cultural significance.
Highly flammable chaparral vegetation" means species that provide large fuel loads such as sumac, scrub
oak, chamise, and sage. It does not include low -fuel -load species such as toyon, yucca, lemonade berry,
and other similar types of plants.
Structure" means any of the following: (A) buildings designed primarily for human use, including attached
structures such as garages; or (B) buildings designed to house large animals. "Structure" does not include
sheds, storage buildings, or detached garages that are not designed for human use or the housing of large
animals.
Thinning" means the reduction of fuel by methods such as mowing and trimming that leave the plant root
intact to stabilize the soil. Thinning includes the cutting of highly flammable chaparral species to within six
to 12 inches of the soil.
Waste material" means unused or discarded matter having no substantial market value, which is exposed
to the elements and is not enclosed in any structure or otherwise concealed from public view, and which
consists, without limitation or exclusion by enumeration, of such matter and material as:
A. Rubble, asphalt, concrete, plaster, tile;
B. Rubbish, crates, cartons, metal and glass containers;
C. Vehicle bodies and parts.
8.76.020 Discretion.
Where discretion is given in this chapter to determine a public nuisance or reasonable probability thereof
or any material question of fact raised in this chapter, that discretion shall lie with the Director of
Development Services or Fire Marshal.
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8.76. 030 Defensible space — Highly flammable chaparral vegetation.
A. Declaration of Nuisance. All highly flammable chaparral vegetation, and dead or dying trees or
shrubs, growing upon the streets, sidewalks, or upon private property within the City, which by reason of
their size, manner of growth, and location constitute a fire hazard to any structure, improvements, crops or
other property, are declared by this chapter to be a public nuisance. A dead or dying tree or shrub shall not
be classified as a public nuisance unless the tree or shrub is in a condition that constitutes a fire hazard.
B. Nuisance Per Se. Any vegetation of a type described in subsection (A) of this section that is located
within 100 feet of a structure shall constitute a public nuisance per se.
C. Exceptions. The following types of vegetation shall not be subject to reduction or removal pursuant
to this chapter:
1. Low -flammability plant species, including but not limited to toyon, yucca, and lemonade berry.
2. Ornamental landscaping.
3. Heritage trees.
4. Vegetation within streambeds, banks, and vernal pools.
D. Reduction or Removal of Highly Flammable Chaparral Vegetation.
1. All vegetation which constitutes a public nuisance pursuant to this section shall be reduced or
removed as determined necessary by the Director of Development Services or Fire Marshal. Highly
flammable chaparral vegetation shall be reduced only by thinning, and not by clearing, brushing,
grubbing or grading.
2. In the case of light fuel vegetation which is located on a slope of less than 40 percent, the Fire
Marshal may require a defensible space area of less than 100 feet from a structure. However, in no
case shall the required defensible space area be less than 50 feet from a structure.
3. In the case of vegetation that is within a recorded biological conservation easement, any habitat
that is required to be removed pursuant to this chapter shall be mitigated in kind by the property
owner at a 1:1 ratio.
8.76.035 Vegetation management —Weeds and dry grasses.
A. All weeds, dry grasses, dead shrubs, dead or dying trees, rubbish, or any material growing upon
the streets, sidewalks, or upon private property within the City, which bears seeds of a wingy or downy
nature or which by reason of their size, manner of growth, and location constitute a fire hazard to any
building, improvements, crops or other property, and weeds and grasses which, when dry, will in reasonable
probability constitute such a fire hazard, are declared by this chapter to be a public nuisance.
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B. Cultivated and useful grasses and pasture will not be declared a public nuisance. However, if the Director
of Development Services or Fire Marshal determines it necessary to protect adjacent improved property
from fire exposure, vegetative management may be required.
8.76.040 Waste matter.
Waste matter as defined in this chapter, which by reason of its location and character is unsightly and
interferes with the reasonable enjoyment of property by neighbors, or which would materially hamper or
interfere with the prevention or suppression of fire upon the premises, or the abatement of a nuisance, is
declared a public nuisance.
8.76.050 Notice to clean premises.
If it is determined that a public nuisance, as defined in this chapter, exists on any lot or premises, or upon
any sidewalk, parking lot or street adjacent to such lot or premises, the Director of Development Services
or Fire Marshal shall cause a notice to be issued to abate such nuisance. Such notice shall be headed:
NOTICE TO CLEAN PREMISES
in letters not less than one inch in height and which shall, in legible characters, direct the abatement of the
nuisance and refer to this chapter and section for particulars. Notices served by means of other than posting
as provided by this chapter shall contain a description of the property in general terms reasonably sufficient
to identify the location of the nuisance.
8.76.060 Service of notice to clean premises.
The notice required by PMC 8.76.050 may be served in any of the following manners:
A. By personal service on the owner, occupant or person in charge or control of the property or by
posting the property;
B. By regular mail addressed to the owner or person in charge and control of the property, at the
address shown on the last available assessment roll, or as otherwise known;
C. By posting at a conspicuous place on the land or abutting public right-of-way and insertion of an
advertisement at least once a week for the period of two weeks in a newspaper of general circulation in the
City. Said newspaper advertisement shall be a general notice that property in the City has been posted in
accordance with this chapter and contain a general statement of the effect of such postings. The date of
such newspaper advertisements shall not be considered in computing the appeal periods provided by this
chapter.
8.76.080 Time limit for abatement of nuisance.
It shall be the duty of the owner, the agent of the owner, or the person in possession of any lot or premises
in the City to abate the nuisance within the time frame set forth in the notice.
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8.76.090 Abatement of nuisance by Director of Development Services or Fire Marshal.
If the owner, agent of the owner, or the person in possession of the lot or premises fails or neglects to abate
the nuisance as defined in this chapter, within the time specified in this chapter, the Director of Development
Services or Fire Marshal shall cause such nuisance to be abated. The abatement work may be done by
City crews or by private contractor. A report of the proceedings and an accurate account of the cost of
abating the nuisance on each separate property shall be filed with the City Council.
8.76.100 Obligation of City Clerk.
The City Clerk shall thereupon set the report and account for hearing by the City Council at the first regular
or adjourned meeting which will be held at least seven and no more than 30 calendar days after the date
of filing, and shall post a copy of said report and account and notice of the time and place of hearing in a
conspicuous place at or near the entrance of City Hall.
8.76.110 Hearing before City Council.
The City Council shall consider the report and account at the time set for hearing, together with any written
objections or protests by any owner or authorized agent of the property. Any owner of land or person
interested therein may present a written or oral protest or objection to the report and account. At the
conclusion of the hearing, the City Council shall either approve the report and account as submitted, or as
modified or corrected by the City Council. The amounts so approved shall be liens or special assessments
upon the respective lots or premises, and the City Council shall adopt a resolution assessing said amounts
as liens or assessments upon the respective parcels of land as they are shown upon the last available
assessment roll, and determining that such vegetation and/or waste matter constitute a public nuisance.
The City Clerk shall prepare and file with the County Assessor a certified copy of such resolution of the City
Council.
8.76.120 Payment prior to hearing.
The City Clerk may accept payment of any amount due at any time prior to the City Council hearing, as
called for in PMC Section 8.76. 110.
8.76.130 Government Code provisions adopted, and collection of assessments.
The provisions of Sections 39580 through 39586, inclusive, of the Government Code of the State, and any
amendments thereto, are incorporated by reference and made a part of this chapter. The County Auditor
shall enter each assessment in the County tax roll opposite the parcel of land. The amount of the
assessment shall be collected at the time and in the manner of ordinary municipal taxes; and, if delinquent,
the amount is subject to the same penalties and procedure of foreclosure and sale as is provided for
ordinary municipal taxes.
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CHAPTER 8.80
ACCUMULATION OF JUNK
Sections:
8.80.010 Purpose
8.80.020 Definitions.
8.80.030 Prohibitions.
8.80.040 Regulations.
8.80.050 Junkyards.
8.80.060 Disposal of junk.
8.80.070 Firewood.
8.80.080 Enforcement.
8.80.010 Purpose.
This Chapter provides the regulations to control litter and junk accumulation within the City of Poway.
8.80.020 Definitions.
For the purposes of this chapter, the following words and phrases shall have the meanings respectively
ascribed to them in this section:
A. "Accumulation" means acquisition, dumping or gathering of something whether gradually or
suddenly, including one or more items.
B. "Junk' means any combustible or noncombustible nonputrescible waste, including, but not limited
to, trash; refuse; paper; glass; cans; bottles; rags; fabrics; bedding; ashes; natural aggregate, manure or
animal waste, trimmings from lawns, shrubbery or trees, except when used for mulch or like agricultural
purposes; household refuse other than garbage; lumber, metal, plumbing fixtures, bricks, building stones,
plaster, wire or like materials from the demolition, alteration or construction of buildings or structures; tires
or inner tubes; auto, aircraftor boat parts; plastic or metal parts or scraps; damaged or defective machinery,
whether or not repairable; and damaged or defective toys, recreational equipment or household appliances
or furnishings, whether or not repairable.
C. "Litter" means waste material or similar, including, but not limited to, junk, convenience food,
beverage and other product packages or containers, cigarettes or smoking devices (partial or whole), steel,
aluminum, glass, paper, plastic or other materials, thrown, deposited or left on property or right-of-way
within the City.
8.80.030 Prohibitions.
A. No responsible person as defined in PMC Chapter 1.08 and 1.10 shall accumulate junk on the
exterior areas of any lot which is not fully enclosed by a lawful building, unless stored in compliance with
PMC Section 8.80.040.
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B. No person shall throw, deposit, cause to be deposited, or leave litter or junk in or upon any public
street, alley, sidewalk, public right-of-way or public place within the City except in public receptacles or
authorized private receptacles.
C. No person shall throw, deposit, cause to be deposited, or leave any litter in or upon any private
property within the City, vacant or occupied, except as provided in this Chapter.
8.80.040 Regulations.
A. All exterior areas where junk is stored shall comply with PMC Chapter 13.09, PMC Title 15, PMC
Title 16 Division VI, and each of following:
1. The following Structural best management practices (BMPs) shall be incorporated into areas
where junk is to be stored:
a. Grade impervious surfaces to drain to vegetated areas;
b. Minimize the area of impervious surfaces such as paved areas, roofs and concrete driveways;
c. Incorporate pervious or porous surfaces (e.g., gravel, permeable pavers or blocks, pervious or
porous concrete) that minimize runoff.
d. All exposed junk shall be elevated above the ground with non-metallic or other nonpolluting
materials so that no sediment runoff will occur: and
e. All exposed junk shall be covered by an impervious fabric.
2. Long-term maintenance of all structural BMPs is required in accordance with PMC Chapter 16.104.
3. Compliance with stormwater BMPs shall be adhered to.
4. Areas shall be maintained so as to not be conducive to the breeding, shelter or harborage of
insects, rodents, vermin or pests;
5. Junk and operations associated with junk shall not create any odor, generate any airborne
particulate matter, or generate any excessive noise for adjacent property.
6. Junk shall not be visible from adjacent public rights-of-way, any street, and any area accessible to
the public.
7. Junk shall not constitute a danger or potential danger to, or otherwise be detrimental to, the public
health, safety or general welfare.
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8. Junk shall not be maintained in a manner that constituted a fire hazard, in the opinion of the
Director of Development Services or his/her designee.
9. Junk shall not be strewn about or maintained in an unsightly condition.
10. Junk shall not invite vandalism or otherwise constitute an attractive nuisance.
11. No person shall accumulate junk, or permit junk to be accumulated:
a. Within four feet of any building or structure, except that junk may be accumulated within two
feet of a fence or wall which is constructed of nonflammable material and is not used for structural
support of a building.
b. Within 15 feet of any rear lot line;
c. Within 10 feet of any side lot line; or
d. In the front yard.
8.80.050 Junkyards.
This chapter does not prohibit the accumulation of junk in the course of the lawful operation of a junkyard,
motor vehicle storage or wrecking yard, or salvage yard conducted in the manner authorized by the zoning
ordinance and/or this code. Nothing contained in this chapter shall be deemed to authorize the
establishment or maintenance of a junkyard, motor vehicle storage or wrecking yard, or salvage yard.
8.80.060 Disposal of junk.
This chapter does not prohibit the accumulation of junk in accordance with the conditions and requirements
of, and for the purposes authorized by PMC 8.68.150, or for a reasonable time prior to disposal thereof in
a public dump or other place where disposal lawfully may be made.
8.80.070 Firewood.
This chapter does not prohibit the accumulation of used lumber, lumber scraps and/or materials fabricated
out of wood for use as firewood or fuel; provided, however, that any such accumulation shall be neatly
stacked and shall be maintained in the manner authorized by the zoning ordinance and/or this code ; and,
provided further, that the components of such an accumulation shall be sawed or otherwise reduced in size
so that no piece thereof exceeds five feet in length or two feet in width.
8.80.080. Enforcement
The Director of Development Services or his/her designee shall enforce this chapter, pursuant to PMC
Chapters 1.08, 1.10 and 8.72.
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Chapter 13.09
STORMWATER MANAGEMENT AND DISCHARGE CONTROL
Sections:
13.09.010 Title.
13.09.020 Purpose and intent.
13.09.030 Definitions.
13.09.040 General provisions.
13.09.050 Discharge prohibitions.
13.09.060 Exemptions to discharge prohibitions.
13.09.070 Best management practice requirements for all dischargers.
13.09.080 Additional requirements for land disturbance activity.
13.09.090 Additional requirements for all land development and redevelopment projects.
13.09.100 Maintenance of best management practices.
13.09.110 Inspection and sampling.
13.09.120 Enforcement authority.
13.09.130 Other acts and omissions that are violations.
13.09.140 Penalties.
13.09.010 Title.
This chapter shall be known as the "City of Poway stormwater management and discharge control
ordinance." (Ord. 775 § 3, 2015)
13.09.020 Purpose and intent.
The purposes of this chapter are as follows:
A. To establish requirements fordischarges into the stormwater conveyance system, receiving waters,
and the environment;
B. To protect, to the maximum extent practicable (MEP), life, property, receiving waters, aquatic life,
and the environment from loss, injury, degradation, or damage by discharges from within the City's
jurisdiction;
C. To protect the stormwater conveyance system from damage; and
D. To meet the requirements of State and Federal law and the MS4 Permit. (Ord. 775 § 3, 2015)
13.09.030 Definitions.
The following definitions shall be applicable when the following words or phrases are used hereafter in this
chapter (including use in the City of Poway's Best Management Practices Manual), whether or not these
words or phrases are capitalized.
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Authorized enforcement official" means the City Manager of the City of Poway or any designee of the City
Manager of the City of Poway who is responsible for enforcing the provisions of this chapter, including but
not limited to the Directors, their management staff, and designees.
Best management practices" or "BMPs" are the schedules of activities, pollution treatment practices or
devices, prohibitions of practices, general good housekeeping practices, pollution prevention and
educational practices, maintenance procedures, and other management practices or devices to prevent or
reduce the discharge of pollutants directly or indirectly to stormwater, receiving waters or the stormwater
conveyance system. BMPs also include, but are not limited to, treatment practices, operating procedures,
and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw
materials storage. BMPs may include any type of pollution prevention and pollution control measure,
approved by the City and consistent with the MS4 Permit, that can help to achieve compliance with this
chapter.
BMP Manual" or "Manual" means the City's Best Management Practices (BMP) Manual, described in
PMC 13.09.040(D) and 13.09.080. The BMP Manual shall be adopted, and amended from time to time, by
resolution as a part of the City's Jurisdictional Runoff Management Program.
Channel" means a natural or improved watercourse with a definite bed and banks that conveys
continuously or intermittently flowing water.
City" means the City of Poway.
Contamination," as defined in Section 13050 of the Porter -Cologne Water Quality Control Act (Division 7 of
the California Water Code), is "an impairment of the quality of waters of the State by waste to a degree
which creates a hazard to the public health through poisoning or through the spread of disease.
Contamination' includes any equivalent effect resulting from the disposal of waste whether or not waters
of the State are affected." In the event Section 13050 of the Porter -Cologne Water Quality Act is amended
or superseded, the amended or superseding section shall define "contamination."
County" means the County of San Diego.
Developer" means a person who seeks or receives permits for or who undertakes land development
activity.
Development project proponent" means developer.
Director" means the Director of the City's Development Services Department.
Discharge," when used as a verb, means to allow pollutants to directly or indirectly enter stormwater, or to
allow stormwater or nonstormwater to directly or indirectly enter the stormwater conveyance system or
receiving waters, from an activity or operations which one owns or operates. When used as a noun,
discharge" means the pollutants, stormwater and/or nonstormwater that is discharged.
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Discharge directly to" means that stormwater or nonstormwater is conveyed overland a distance of 200
feet or less from a site, or conveyed in a pipe or open channel any distance as an isolated flow from a site
i.e., not commingled with flows from adjacent lands).
Discharger" means any person or entity engaged in activities or operations, or owning facilities, which will
or may result in pollutants entering stormwater, the stormwater conveyance system, or receiving waters;
and the owners of real property on which such activities, operations or facilities are located; provided,
however, that a local government or public authority is not a discharger as to activities conducted by others
in public rights-of-way.
Erosion" refers to any process in which land is diminished or worn away due to wind, water or glacial ice.
Often the eroded debris (silt or sediment) becomes a pollutant via stormwater runoff. Erosion occurs
naturally but can be intensified by land clearing activities such as farming, development, road building, and
timber harvesting.
Groundwater" means subsurface water that occurs beneath the water table in soils and geologic formations
that are fully saturated.
Illegal connection" means a pipe, facility or other device connected to the stormwater conveyance system
or receiving waters, which has not been reviewed and authorized by the City; or a permitted/authorized
pipe, facility or other device which conveys illegal discharges.
Illegal discharge' means any discharge to the stormwater conveyance system or receiving waters that is
prohibited by this chapter. This includes, but is not limited to, discharges of nonstormwater that are not
exempt discharges listed in PMC 13.09.060, discharges of irrigation runoff to the stormwater conveyance
system, any discharge from an illegal connection, and any discharge that contains additional pollutants due
to the absence of a required BMP or the failure of a BMP. Discharges that require an NPDES permit that
has not been issued or has not been acknowledged by the discharger to be applicable are illegal
discharges. Discharges regulated under an applicable NPDES permit are illegal discharges for purposes
of this chapter unless compliance with all applicable permit and stormwater pollution prevention plan
SWPPP) conditions is maintained.
Impervious surface" means constructed or modified surfaces that cannot effectively infiltrate rainfall. The
term includes, but is not limited to, building rooftops, pavement, sidewalks, and driveways.
Land development activity" means construction, rehabilitation, redevelopment, or reconstruction of any
public or private projects.
Land disturbance activity" means any activity that moves soils or substantially alters the preexisting
vegetated or manmade cover of any land. This includes, but is not limited to, grading, digging, cutting,
scraping, stockpiling or excavating of soil; placement of fill materials; paving, pavement removal, exterior
construction; substantial removal of vegetation where soils are disturbed, including, but not limited to,
removal by clearing or grubbing; or any activity which bares soil or rock or involves streambed alterations
33 of 63 April 2, 2019, Item #1.5
or the diversion or piping of any watercourse. Land disturbance activity does not include routine
maintenance to maintain original line and grade, hydraulic capacity or the original purpose of the facility,
nor does it include emergency construction activities or maintenance activities required to protect public
health and safety.
Land owner" means the holder of legal title to the land, and other persons or entities who exercise control
over a land development project pursuant to rights granted in a purchase agreement, joint venture
agreement, development agreement, or long-term lease.
Low impact development" or "LID" means a stormwater management and land development strategy that
emphasizes conservation and the use of on-site natural features integrated with engineered, small-scale
hydrologic controls to more closely reflect predevelopment hydrologic functions.
Maintenance of a BMP" means periodic action taken to maintain the as -designed performance of a BMP,
and includes, but is not limited to, repairs to the BMP as necessary and replacement of the BMP by an
equally effective or more effective BMP at the end of its useful life.
Maximum extent practicable" or "MEP" is an acceptability standard for BMPs. When BMPs are required to
meet this standard, the BMPs must be the most effective set of BMPs that is still practicable. A BMP is
effective if it prevents, reduces or removes the pollutants that would otherwise be present in runoff due to
human activity. A BMP is practicable if it complies with other regulations as well as stormwater regulations;
is compatible with the area's land use, character, facilities, and activities; is technically feasible (considering
area soil, geography, water resources, and other resources available); is economically feasible; and
provides benefits that are reasonable in relation to costs.
MS4 Permit" refers to RWQCB Order No. R9-2013-0001, NPDES Permit No. CAS0109266, as may be
amended.
Nonstormwater discharge" is any discharge to the stormwater conveyance system or receiving waters that
is not composed entirely of stormwater.
NPDES permit" means a National Pollutant Discharge Elimination System (NPDES) permit issued by the
U.S. Environmental Protection Agency, the State Water Resources Control Board (SWRCB), or the
RWQCB.
Nuisance" shall have the same meaning as set forth in PMC 8.72.020.
Pollutants" shall have the same meaning as set forth in PMC 8.68.020.
Pollution," as defined in Section 13050 of the Porter -Cologne Water Quality Control Act (Division 7 of the
California Water Code), is "the alteration of the quality of the waters of the State by waste, to a degree
which unreasonably affects either of the following: (1) The waters for beneficial uses; or (2) Facilities that
serve these beneficial uses." In the event Section 13050 of the Porter -Cologne Water Quality Act is
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amended or superseded, the amended or superseding section shall define "pollution." Pollution may include
contamination.
Porter -Cologne Water Quality Control Act" or "Act" means Division 7 of the California Water Code as may
be amended from time to time.
Premises" means any building, lot, parcel, land or portion of land whether improved or unimproved.
Priority development project" refers to new development and redevelopment project categories as more
fully set forth in Section E.3. b of the MS4 Permit and in the BMP Design Manual.
Receiving waters" means all waters that are "waters of the United States."
Redevelopment" means any construction, alteration or improvement of an already developed site.
Redevelopment can include, but is not limited to, the expansion of building footprints, the addition or
replacement of a structure, exterior construction and remodeling, replacement of existing impervious
surfaces that are not part of a routine maintenance activity, and other activities that create additional
impervious surfaces.
Runoff' means all flows in a stormwater conveyance system, including stormwater (wet weather flows) and
nonstormwater (dry weather flows).
RWQCB" means the Regional Water Quality Control Board for the San Diego Region.
Sediment" means soils or other surficial materials eroded and then transported or deposited by the action
of wind, water, ice, or gravity. Sediment resulting from anthropogenic sources (i.e.. human induced land
disturbance activities) is considered a pollutant.
Standard urban stormwater mitigation plan" means a plan designed to reduce pollutants and runoff flows
from new development and significant redevelopment.
State" means the State of California.
State general construction stormwater permit" means NPDES Permit No. CAS000002 and any
amendments thereto.
State general industrial stormwater permit" means NPDES Permit No. CAS000001 and any amendments
thereto.
Stop work order" means an order issued which requires that specifically identified activity or all activity on
a site be stopped.
Stormwater" shall have the same meaning as set forth in PMC 8.68.020.
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Stormwater conveyance system" means facilities owned or operated by the City of Poway by which
stormwater may be conveyed to receiving waters of the United States, including any roads with drainage
systems, streets, catch basins, curbs, gutters, ditches, pipes, natural and manmade channels or storm
drains.
Stormwater management" means the use of structural or nonstructural BMPs that are designed to reduce
urban runoff pollutant loads, discharge volumes and/or peak discharge flow rates or velocities. When
applied to the City or another municipality, stormwater management also includes planning and
programmatic measures.
Stormwater management plan" means a plan, submitted on a City form or in a City -specific format in
connection with an application for a City permit or other City approval, identifying the measures that will be
used for stormwater and nonstormwater management during the permitted activity.
Stormwater pollution prevention plan" or "SWPPP" means a document that meets the requirements for an
SWPPP set out in the State general construction stormwater permit or the State general industrial
stormwater permit.
Stormwater quality management plan" (SWQMP) is a report that documents how a priority development
project complies with applicable BMP requirements for land development and redevelopment activities
listed in the BMP Manual.
Structural BMP" means a BMP that relies on either a physical condition (other than an entirely natural and
undisturbed condition), or a constructed or installed device to reduce or prevent pollutants in stormwater
discharges and authorized nonstormwater discharges. Constructed or enhanced BMPs that depend on
natural materials and processes (e.g., constructed drainage swales or buffers, or constructed wetlands),
and that require periodic maintenance to function as designed, are structural BMPs.
Structural post -construction BMP" means a structural BMP (other than a temporary construction -related
BMP) put in place in connection with a land development or redevelopment project to prevent or reduce
pollution of stormwater or receiving waters, or to prevent or reduce erosion downstream from the project.
All treatment control BMPs are structural post -construction BMPs.
SWRCB" means the State Water Resources Control Board.
Watercourse" means a permanent or intermittent stream, creek or other body of water, either natural or
improved, which gathers or carries surface water.
Water quality standards" are defined as the beneficial uses (e.g., swimming, fishing, municipal drinking
water supply, etc.) of water and the water quality objectives adopted by the State or the U.S. Environmental
Protection Agency to protect those uses.
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Waters of the State" means any water, surface or underground, including saline waters, within the
boundaries of the State (State Water Code Section 10350(e)). The definition of the "waters of the State" is
broader than that for the "waters of the United States" in that all water in the State is considered to be
waters of the State" regardless of circumstances or condition.
Waters of the United States" means water subject to the regulatory jurisdiction of the United States under
the Federal Clean Water Act and applicable case law. (In general, this includes "navigable" waters, waters
tributary to "navigable' waters and adjacent wetlands.) (Ord. 775 § 3, 2015)
13.09.040 General provisions.
A. Responsibility for Administration. This chapter shall be administered for the City of Poway by its
authorized enforcement officials.
B. Construction and Application. Interpretation of this chapter shall assure consistency with the
purpose and intent of this chapter and shall implement the requirements of the MS4 Permit. This chapter is
not intended to interfere with, abrogate or annul any other chapter, rule or regulation, statute or other
provision of law. The requirements of this chapter should be considered minimum requirements, and where
any provision of this chapter imposes restrictions different from those imposed by any other chapter, rule
or regulation, or other provision of law, whichever provisions are more restrictive or impose higher protective
standards for human health or the environment shall take precedence. Stormwater and nonstormwater
discharges regulated under a valid facility -specific NPDES permit or facility -specific RWQCB waste
discharge requirements permit are not subject to this chapter, but shall instead be regulated exclusively by
the RWQCB.
C. BMP Manual. The City may establish and adopt a written description of the runoff management
measures and programs, including minimum BMPs that the City will implement, or require to be
implemented, to ensure compliance with this chapter. These documents shall be known collectively as the
BMP Manual. Amendments to the BMP Manual shall be approved by the authorized enforcement official.
D. Severability and Validity. If any section of this chapter is declared invalid by a court of law, the
remaining sections shall remain valid. The City Council hereby declares that it would have passed this
chapter, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that
any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or
unconstitutional, and if for any reason this chapter should be declared invalid or unconstitutional, then the
original ordinance or ordinances shall be in full force and effect. (Ord. 775 § 3, 2015)
13.09.050 Discharge prohibitions.
A. Illegal Discharges. The direct or indirect discharge of pollutants into the stormwater conveyance
system or receiving waters is prohibited, except as exempted in PMC 13.09.060. The direct or indirect
discharge of pollutants into the stormwater conveyance system or receiving waters in stormwater is
prohibited, unless the applicable requirements of this chapter have been met.
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B. Illegal Connection. The establishment of illegal connections is prohibited. The use of illegal
connections is prohibited, even if the connection was established pursuant to a valid City permit and was
legal at the time it was constructed.
C. Prevention of Illegal Discharges. Throwing, depositing, leaving, abandoning, maintaining, or
keeping materials or wastes on public or private lands in a manner and place where they may result in an
illegal discharge is prohibited.
D. Violations of the MS4 Permit. It is unlawful for any responsible person as defined in PMC Chapter
1.08 and 1.10 to cause, or threaten to cause, either individually or jointly, any discharge into or from the
stormwater conveyance system that results in or contributes to a violation of the MS4 Permit. (Ord. 775 § 3,
2015)
13.09.060 Exemptions to discharge prohibitions.
A. Permitted Discharges. Any discharge to the stormwater conveyance system that is regulated under
an NPDES permit issued to the discharger and administered by the State pursuant to the Porter -Cologne
Water Quality Control Act is allowed; provided, that the discharger is in compliance with all requirements of
the NPDES permit and other applicable laws and regulations.
B. Groundwater Discharges Typically Requiring Permits. Nonstormwater discharges to the
stormwater conveyance system from the following categories are allowed if: (1) the discharger obtains
coverage under NPDES Permit No. CAG919002 (RWQCB Order No. R9-2008-0002, or subsequent order)
for discharges to surface waters other than San Diego Bay, and the discharger is in compliance with all
requirements of the applicable NPDES permit, and all other applicable laws and regulations; or (2) the
RWQCB determines in writing that coverage under NPDES Permit No. CAG919002 (or subsequent permit)
is not required. Otherwise, nonstormwater discharges from the following categories are illegal discharges:
1. Discharges from uncontaminated pumped groundwater;
2. Discharges from foundation drains when the system is designed to be located at or below the
groundwater table to actively or passively extract groundwater during any part of the year;
3. Discharges from water from crawl space pumps; or
4. Discharges from water from footing drains when the system is designed to be located at or below
the groundwater table to actively or passively extract groundwater during any part of the year.
C. Discharges from Water Lines. Nonstormwater discharges to the stormwater conveyance system
from water line flushing and water main breaks are allowed if the discharges have coverage under NPDES
Permit No. CAG679001 (RWQCB Order No. R9-2010-0003, or subsequent order), and the discharger is in
compliance with all requirements of that NPDES permit and other applicable laws and regulations. This
category includes water line flushing and water main break discharges from water purveyors issued a water
supply permit by the California Department of Public Health or Federal military installations. Discharges
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from recycled or reclaimed water lines to the stormwater conveyance system are allowed if the discharges
have coverage under an NPDES permit, and the discharger is in compliance with the applicable NPDES
permit and other applicable laws and regulations. Otherwise, discharges from water lines are illegal
discharges.
D. Allowable Discharges. Nonstormwater discharges to the stormwater conveyance system from the
following categories are allowed, unless an authorized enforcement official or the RWQCB identifies the
discharge as a source of pollutants to receiving waters, in which case the discharge is considered an illegal
discharge:
1. Discharges from diverted stream flows;
2. Discharges from flows from riparian habitats and wetlands;
3. Discharges from foundation drains when the system is designed to be located above the
groundwater table at all times of the year, and the system is only expected to produce nonstormwater
discharges under unusual circumstances;
4. Discharges from footing drains when the system is designed to be located above the groundwater
table at all times of the year, and the system is only expected to produce nonstormwater discharges
under unusual circumstances;
5. Discharges from rising groundwater;
6. Discharges from uncontaminated groundwater infiltration to the stormwater conveyance system;
7. Discharges from springs; and
8. Discharges from potable water sources, except as set forth in subsection C of this section and
except that irrigation runoff discharges are considered illegal discharges and are not allowed.
E. Conditionally Allowed Discharges. Nonstormwater discharges from the following categories are
allowed if they are addressed as set forth below; otherwise, nonstormwater discharges from the following
categories are illegal discharges:
1. Air Conditioning Condensation. Air conditioning condensation discharges shall comply with
applicable BMPs identified in the BMP Manual.
2. Individual Residential Vehicle Washing. Wash water from individual residential vehicle washing
must be directed to landscaped areas or other pervious surfaces, where feasible. Where discharges
cannot be feasibly prevented, BMPs must be implemented in accordance with the BMP Manual.
Noncommercial car washes, such as fundraisers and other similar activities, are not considered
individual residential vehicle washing. Discharges from such activities are, therefore, considered
illegal discharges.
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3. Water from Swimming Pools.
a. Chlorinated Swimming Pool Water. Chlorine, algaecide, filter backwash, and other pollutants
shall be eliminated prior to discharging swimming pool water to the stormwater conveyance
system.
b. Saline Swimming Pool Water. Saline swimming pool water must be directed to the sanitary
sewer, landscaped areas, or other pervious surfaces that can accommodate the volume of
water, unless the saline swimming pool water can be discharged directly to a naturally saline
water body.
F. Firefighting Activities. Nonstormwater discharges to the stormwater conveyance system from
firefighting activities are allowed if they are addressed as follows:
1. Nonemergency Firefighting Discharges. Nonemergency firefighting discharges, including building
fire suppression system maintenance discharges (e.g., sprinkler line flushing), controlled or practice
blazes, training, and maintenance activities shall be addressed by BMPs to prevent the discharge of
pollutants to the stormwater conveyance system.
2. Emergency Firefighting Discharges. BMPs are encouraged to prevent pollutants from entering the
stormwater conveyance system. During emergencies, priority of efforts should be directed toward
life, property and the environment (in descending order). BMPs shall not interfere with emergency
response operations or impact public health and safety.
G. Exemptions Not Absolute. Notwithstanding the categories of nonstormwater discharges
conditionally allowed by subsections A through F of this section, if the RWQCB or the authorized
enforcement official determines that any of these categories of otherwise conditionally allowed
nonstormwater discharges are a source of pollutants to receiving waters, are a danger to public health or
safety, or are causing a public nuisance, such discharges shall be prohibited from entering the stormwater
conveyance system. (Ord. 775 § 3, 2015)
13.09.070 Best management practice requirements for all dischargers.
A. Best Management Practices. Any responsible person as defined in PMC Chapter 1.08 and 1.10
engaged in activities which may result in discharges to the stormwater conveyance system shall, to the
maximum extent practicable, undertake all measures to reduce the risk of nonstormwater discharges and
pollutant discharges. The following requirements shall apply:
1. Every responsible person as defined in PMC Chapter 1.08 and 1.10 undertaking any activity or
use of premises that may cause or contribute to stormwater pollution or contamination, illegal
discharges, or nonstormwater discharges to the stormwater conveyance system shall comply with
BMP guidelines or pollution control requirements, as may be established by the authorized
enforcement official. BMPs shall be maintained routinely throughout the life of the activity. Such
BMPs include the minimum BMPs set forth in the BMP Manual.
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2. An authorized enforcement official may require any business or operations that are engaged in
activities which may result in pollutant discharges to the stormwater conveyance system to develop
and implement a SWPPP, which must include an employee training program and the applicable
minimum BMPs from the BMP Manual.
3. Each discharger that is subject to any NPDES permit shall comply with all requirements of all such
permits. The discharger must also make reports submitted to the RWQCB or other permitting agency,
including monitoring data, available to the City upon request.
4. Parties undertaking land disturbance activities shall comply with all applicable requirements of this
chapter, the BMP Manual, and Division III of PMC Title 16 (Chapters 16_40 through 16_56 PMC).
5. Parties undertaking land development and redevelopment activities shall comply with all applicable
requirements of this chapter and the BMP Manual.
B. Guidance Documents. Any authorized enforcement official under the supervision of the City
Engineer may prepare, disseminate and maintain guidance documents addressing the use of BMPs for
specific activities or facilities, illegal connections and illegal discharges. These guidance documents may
set out additional compliance alternatives that, in specified circumstances, can provide the same
environmental protection that is afforded by the BMPs required by this chapter or specified in the BMP
Manual.
C. Significant Sources of Pollutants. Where an authorized enforcement official identifies a discharge
that is in violation of PMC 13.09.050(D) or 13.09.060(G), an authorized enforcement official may order the
discharger to install, implement and maintain additional BMPs to prevent or reduce contamination in
stormwater and nonstormwater to the MEP. Any such order shall specify a reasonable date by which those
BMPs must be put in place. The failures to install, implement or maintain additional BMPs as required by
any such order is a violation of this chapter.
D. Collection and Use of Stormwater. An authorized enforcement official may modify any requirement
imposed by this chapter to allow the on-site collection and use of stormwater, or the collection of stormwater
for delivery to and use at City -designated sites, provided the modified requirements are enforceable and
provide equivalent environmental protection. (Ord. 775 § 3, 2015)
13.09.080 Additional requirements for land disturbance activity.
A. Permit Issuance. No land owner or development project proponent shall receive any City grading,
clearing, building, or other land development permit or equivalent approval required for land disturbance
activity without first meeting the requirements of this chapter, the BMP Manual, and Division III of PMC
Title 16, with respect to the portion of the development project and the land disturbance activity to which
the permit at issue would apply.
B. Owners and Operators Both Responsible and Liable. Persons or entities performing land
disturbance activity (including, but not limited to, construction activities) in the City, and the owners of land
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on which land disturbance activity is performed, are dischargers for purposes of this chapter; provided,
however, that a local government or public authority is not a discharger as to activities conducted by others
in public rights-of-way.
C. BMP Plan Submittals. All applications to the City for a permit or approval associated with a land
disturbance activity must demonstrate how the proposed activity will comply with all applicable BMP
requirements in a format specified by the City. The submitted materials shall specify the manner in which
the discharger/applicant will implement the BMPs required by this chapter, the BMP Manual, and Division
III of PMC Title 16 for the activity at issue, including, but not limited to, the applicable BMPs required by
subsection D of this section.
D. Agricultural Grading and Clearing. The BMP requirements imposed by this section for land
disturbance activities apply to agricultural grading and clearing, whether or not a City -issued grading and
clearing permit is required for that activity. Tilling or cultivating land exclusively for the purpose of growing
plants or animals is not considered to be grading or clearing, provided all disturbed material remains on the
same site, the tilling or cultivating will not block or divert any natural drainage way, and the land to be tilled
or cultivated has been in agricultural production for at least one of the preceding five years. (Ord. 775 § 3,
2015)
13.09.090 Additional requirements for all land development and redevelopment projects.
A. Application to Development and Redevelopment Projects. No land owner or development project
proponent in the City shall receive any City grading, clearing, building or other land development permit
required for land development activity or redevelopment activity unless the project meets or will meet the
requirements of this chapter and the applicable requirements defined in the City's BMP Manual. For priority
development projects, the project's post -construction BMP plan must be approved prior to the issuance of
such permits.
B. Owners and Developers Responsible and Liable. Developers, development project proponents,
and land owners for land on which land development activity is performed, are dischargers for purposes of
this chapter; provided, however, that a local government or public authority is not a discharger as to
activities conducted by others in public rights-of-way.
C. Post -Construction BMPs Required. Land development and redevelopment projects with the
potential to add pollutants to stormwater or to affect the flow rate or velocity of stormwater runoff after
construction is completed shall be designed to include and shall implement post -construction BMPs to
ensure that pollutants and runoff from the development will be reduced to the maximum extent practicable,
will not significantly degrade receiving water quality, and will not cause or contribute to an exceedance of
water quality standards in accordance with the requirements defined in the BMP Manual.
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D. Land Development Associated with Agricultural Operations. The requirements imposed by this
section for land development activities apply to such activities when they are associated with agricultural
operations.
E. Post -Construction Stormwater Management Plan. All applications to the City for a permit or
approval associated with a land development or redevelopment activity must be accompanied by a post -
construction stormwater management plan on a form or in a format specified by the City. The plan shall
specify the manner in which the discharger/applicant will implement the post -construction BMPs required
by this chapter. The plan must address those aspects of the project that, at the time a complete application
is submitted, are subject to further environmental review pursuant to Section 15162 of the California
Environmental Quality Act. Post -construction BMPs for other aspects of the project need not be addressed
in this plan.
F. Stormwater Management Plan Review Fee and Deposit. Fees for stormwater management plan
review and deposit thereof shall be adopted by resolution.
G. Control to the Maximum Extent Practicable. All dischargers engaged in land development and
significant redevelopment activities shall install, implement and maintain post -construction BMPs as
needed to prevent or reduce pollutant discharges in stormwater from land disturbance to the MEP. (Ord.
775§ 3, 2015)
13.09.100 Maintenance of best management practices.
A. Existing Development. Dischargers shall maintain the designed functionality of BMPs they rely
upon to achieve and maintain compliance with this chapter.
B. Structural Post -Construction BMPs. The owners and occupants of lands on which structural post -
construction BMPs, including treatment control BMPs, have been installed to meet the requirements of this
chapter shall ensure the maintenance of those BMPs, and shall themselves maintain those BMPs (by
contract or covenant, or pursuant to this chapter). Such owners and occupants shall provide annual written
verification that appropriate maintenance is conducted for all treatment control BMPs.
C. Maintenance Obligations Assumed by Contract or Other Agreement. Primary responsibility to
maintain a structural post -construction BMP may be transferred through a contract or other agreement. If
that contract provides that it will be submitted to the City pursuant to this chapter as part of a development
permit application, and if that contract is so submitted, the person or entity accepting a maintenance
obligation in such a contract or agreement will also be legally obligated to maintain that BMP pursuant to
this chapter.
D. Obligation to Maintain BMPs Not Avoided by Contracts or Other Agreements. For purposes of City
enforcement, no contract or other agreement imposing an obligation to maintain a structural post -
construction BMP can relieve a person or entity of any obligation to maintain a BMP imposed by this
chapter.
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E. Disclosure of Maintenance Obligations. Any developer who transfers ownership of land on which a
BMP is located or will be located, or who otherwise transfers ownership of a BMP or responsibility for the
maintenance of a BMP to another person or entity, shall provide clear written notice of the maintenance
obligations associated with that BMP to the new or additional responsible party prior to that transfer.
F. Maintenance Plans for Land Development Projects. The proponents of any land development
project or significant redevelopment project that requires installation of structural post -construction BMPs
shall provide to the City for review and approval prior to issuance of permits for the project a plan for
maintenance of all structural post -construction BMPs associated with the project. The plan shall specify the
persons or entities responsible for maintenance activity, the persons or entities responsible for funding,
schedules and procedures for inspection and maintenance of the BMPs, worker training requirements, and
any other activities necessary to ensure BMP maintenance. The plan shall provide for servicing of all
structural post -construction BMPs at least annually and for the retention of inspection and maintenance
records for at least three years.
G. Access for Maintenance. Structural post -construction BMPs shall provide for adequate access on
the part of the City for long-term inspection and maintenance purposes.
H. Assurance of Maintenance for Land Development Projects. The proponents of any land
development activity or redevelopment activity that requires a City permit shall provide to the City, prior to
issuance of permits for the project, proof of a mechanism acceptable to the City which will ensure ongoing
long-term maintenance of all structural post -construction BMPs associated with the proposed project. The
proponents shall be responsible for maintenance of BMPs unless, and until, an alternative mechanism for
ensuring maintenance is accepted by the City and becomes effective.
I. Security for Maintenance for Land Development Projects. If it is determined by the authorized
enforcement official that the public interest requires the posting of a bond or other security to assure the
maintenance of a BMP, such bond or security may be required by the authorized enforcement official. (Ord.
775 § 3, 2015)
13.09.110 Inspection and sampling.
A. Regulatory Inspections and Certification Programs. The authorized enforcement official may
establish inspection or certification programs to evaluate and enforce compliance with the requirements of
this chapter. Authorized enforcement officials may inspect facilities, activities and residences subject to this
chapter at reasonable times and in a reasonable manner to carry out the purposes of this chapter. If entry
for a regulatory inspection is refused by the facility owner or operator, or by the occupant of a residence,
an inspection warrant shall be obtained prior to inspection.
B. Inspections of New Construction. When any new storm drain system or structural BMP is installed
on private property as part of a project that requires a City permit, in order to comply with this chapter, the
responsible person as defined in PMC Chapter 1.08 and 1.10 shall agree to a condition of approval that
provides the City access for inspection and maintenance of storm drain system or BMPs or, at the discretion
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of the City, shall provide to the City for review an easement to enter the property at reasonable times and
in a reasonable manner to ensure that the storm drain system or BMP is working properly. This includes
the right to enter the property without prior notice for routine inspections, to enter as needed for additional
inspections when the City has a reasonable basis to believe that the storm drain system or BMP is not
working properly, to enter for any needed follow-up inspections, and to enterwhen necessary for abatement
of a nuisance or correction of a violation of this chapter.
C. Scope of Inspections. Inspections may include all actions necessary to determine whether any
illegal discharges or illegal connections exist, whether the BMPs installed and implemented are adequate
to comply with this chapter, whether those BMPs are being properly maintained, and whether the facility or
activity complies with the other requirements of this chapter. This may include but may not be limited to
sampling, metering, visual inspections and records review. Where samples are collected the owner or
operator may request and receive split samples. Records, reports, analyses or other information required
under this chapter may be inspected and copied, and photographs taken to document a condition and/or a
violation of this chapter. (Ord. 775 § 3, 2015)
13.09.120 Enforcement authority.
Authorized enforcement officials may enforce this chapter and abate public nuisances as set forth in
Chapters 1.08, 1.10, 8.72 and 15.32 and as follows:
A. Administrative Authorities.l. Administrative Penalties. In addition to administrative penalties
permitted elsewhere in the PMC. administrative penalties may include the recovery of fines assessed
against the City by the RWQCB. 2. Cease and Desist Orders. Written orders, verbal orders or both
may be issued to stop illegal discharges and/or remove illegal connections. If it is determined by an
authorized enforcement official that the public interest requires the posting of a bond or other security
to assure the violation is corrected, such bond or security may be required by the authorized
enforcement official.
3. Notice and Order to Clean, Test or Abate. Written orders, verbal orders or both may be issued to
perform activities to comply with the BMP Manual, this chapter, or as directed by an authorized
enforcement official where conditions warrant.
4. Public Nuisance Abatement. Violations of this chapter are deemed a threat to public health, safety
and welfare, and constitute a public nuisance. If actions ordered under subsections (A)(2) and (3) of
this section are not performed, the authorized enforcement official may abate any public nuisance
pursuant to Chapter 8.72 PMC. City costs for pollution detection and abatement, if not paid in full by
the discharger in addition to any other penalties, may be made a lien against the property in
accordance with the abatement procedure.
5. Stop Work Orders. Whenever any work is being done contrary to the provisions of this chapter, or
other laws implemented through enforcement of this chapter, an authorized enforcement official may
order the work stopped by notice in writing served on any person engaged in the doing or causing
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such work to be done, and any such person shall immediately stop such work until authorized by the
authorized enforcement official to proceed with the work.
6. Permit Suspension or Revocation. Violations of this chapter may be grounds for the suspension
or revocation of a permit and other City license pursuant to PMC 1.08.010(T).
B. Judicial Authorities.
1. Civil Penalties and Remedies. The City Attorney is hereby authorized to file criminal and civil
actions to enforce this chapter and to seek civil penalties and/or other remedies as provided in this
section and in PMC 13.09.140, as well as PMC Chapters 1.08, 1.10, 8.72 and 15.32._ There is no
requirement that administrative enforcement procedures must be pursued before such actions are
filed.
2. Injunctive Relief. The City may enforce compliance with this chapter by judicial action for injunctive
relief.
3. Arrest or Issue Citations. The assistance of a peace officer may be enlisted to arrest violators or
issue a citation and notice to appear as prescribed in the California Penal Code, including
Section 853.6. There is no requirement that administrative enforcement remedies be exhausted or
otherwise used before such actions are taken. The immunities prescribed in Section 836.5 of the
Penal Code are applicable to authorized enforcement officials acting in the course and scope of their
employment pursuant to this chapter. (Ord. 775 § 3, 2015)
13.09.130 Other acts and omissions that are violations.
In addition to failing to comply with any of the other requirements described in this chapter, including a BMP
Manual, the MS4 Permit, and a stormwater quality management plan, the following acts and omissions are
violations of this chapter, whether committed by a discharger or by another person or entity:
A. Causing, Permitting, Aiding, or Abetting Noncompliance. Causing, permitting, aiding, or abetting
noncompliance with any part of this chapter constitutes a violation of this chapter.
B. Concealment, Misrepresentation and False Statements. Any falsification or misrepresentation
made to the City concerning compliance with this chapter, including any misrepresentation in a voluntary
disclosure, any submission of a report that omits required material facts without disclosing such omission,
and any withholding of information required to be submitted by or pursuant to this chapter in order to delay
City enforcement action, is a violation of this chapter. Concealing a violation of this chapter is a violation of
this chapter.
C. Failure to Promptly Correct Noncompliance. Violations of this chapter must be corrected within the
time period specified by an authorized enforcement official. Each day (or part thereof) in excess of that
period during which action necessary to correct a violation is not initiated and diligently pursued is a
separate violation of this chapter.
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D. City Permits and SWPPPs. Any failure to conform to an applicable SWPPP prepared pursuant to
this chapter; any failure to comply with stormwater-related provisions of a City -issued grading permit or
grading plan prepared to secure such a permit; and any failure to comply with stormwater-related provisions
in any other City permit or approval is also a violation of this chapter. For purposes of this chapter a permit
provision or condition of approval is "stormwater-related" if compliance with the provision or condition would
have the effect of preventing or reducing contamination of stormwater or of moderating runoff flow rates or
velocities, whether or not the provision or condition was initially imposed to promote those outcomes. (Ord.
775 § 3, 2015)
13.09.140 Penalties.
A. Administrative Penalties. Administrative penalties may be imposed pursuant to this code. Any
administrative penalty provision in this code shall also be applicable to violations of this chapter, unless
otherwise provided therein.
B. Misdemeanor Penalties. Noncompliance with any part of this chapter may be charged as a
misdemeanor, and may be enforced and punished as prescribed in the Penal Code and Government Code
of the State of California, and this code.
C. Penalties for Infractions. Any violation of this chapter may be charged as an infraction at the
discretion of the prosecutor. Infractions may be abated as a nuisance or enforced and punished as
prescribed in this code, Penal Code and Government Code of the State of California.
D. For Civil Actions. In addition to other penalties and remedies permitted in Chapters 1.08, 1.10. 8.72
and 15. 32, a violation of this chapter may result in the filing of a civil action by the City. The following may
also be awarded without monetary limitations in any civil action:
1. Injunctive relief;
2. Costs to investigate, inspect, monitor, survey, or litigate;
3. Costs to place or remove soils or erosion control materials, costs to correct any violation, and costs
to restore environmental damage or to end any other adverse effects of a violation;
4. Compensatory damages for losses to the City or any other plaintiff caused by violations; and/or
restitution to third parties for losses caused by violations;
5. Civil penalties;
6. Reasonable attorney fees; and
7. Fines assessed against the City by the RWQCB.
As part of a civil action filed by the City to enforce provisions of this chapter, a court may assess a civil
penalty in the maximum amount permitted by law per violation of this chapter for each day during which
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any violation of any provision of this chapter is committed, continued, permitted, or maintained by such
person(s).
In determining the amount of any civil liability to be imposed pursuant to this chapter, the court shall take
into consideration the nature, circumstances, extent and gravity of the violation or violations, whether any
discharge caused by the violation is susceptible to cleanup or abatement, and, with respect to the violator,
the ability to pay, the effect on ability to continue in business, any voluntary cleanup efforts undertaken, any
prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation,
and such other matters as justice may require.
E. Penalties and Remedies Not Exclusive. Penalties and remedies under this section may be
cumulative and in addition to other administrative, civil or criminal remedies. (Ord. 775 § 3, 2015)
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Chapter 15.02
UNIFORM ADMINISTRATIVE CODE
Sections:
15.02.010 Adoption of Uniform Administrative Code.
15.02.020 Deletions, revisions and additions to Uniform Administrative Code.
15.02.030 Section 102.2 amended.
15.02.040 Section 102.6 amended.
15.02.050 Section 202.11 added.
15.02.060 Section 204.1 amended.
15.02.070 Section 206 added.
15.02.080 Section 301.1 amended.
15.02.090 Section 304 amended.
15.02.100 Section 305.2.1 added.
15.02.110 Section 305.5 amended.
15.02.120 Section 309.3 amended.
15.02.130 Tables No. 3-A through No. 3-H deleted.
15.02.010 Adoption of Uniform Administrative Code.
There is adopted as the City's administrative code for the purpose of prescribing administrative and
enforcement provisions for certain technical codes, the Uniform Administrative Code, 1997 Edition,
promulgated and published by the International Conference of Building Officials, 5360 South Workman Mill
Road, Whittier, California 90601, including such provisions as are hereinafter added, deleted, or amended.
Ord. 526 § 2 (B), 2000)
15.02.020 Deletions, revisions and additions to Uniform Administrative Code.
Deletions, revisions and additions to the Uniform Administrative Code, 1997 Edition, shall be as set forth in
PMC 15.02.030 through 15.02. 130. (Ord. 526 § 2(B), 2000)
15. 02.030 Section 102.2 amended.
Section 102.2 of the Uniform Administrative Code, 1997 Edition, is amended by adding the following
sentence to the end of the fourth paragraph:
The installation of wood shingle or shake roofing material shall be prohibited. All roof coverings shall be
fire retardant with a minimum of a Class A rating.
EXCEPTION: The installation of wood shingle or shake roofing material for re -roofing or repair which
does not exceed 25 percent of the project roof area within any 12 month period shall be allowed when
the material has a minimum Class B rating.
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Ord. 526 § 2(B), 2000)
15.02.040 Section 102.6 amended.
Section 102.6 of the Uniform Administrative Code, 1997 Edition, is amended by adding the following:
Moving of apartment houses and dwellings. For clarification purposes, the applicable subsections of
Health and Safety Code Section 17958.9 are repeated:
17958.9 Local ordinances or regulations governing the moving of apartment houses and dwellings shall,
after July 1, 1978, permit the retention of existing materials and methods of construction so long as the
apartment house or dwelling complies with the building standards for foundation applicable to new
construction, and does not become or continue to be a substandard building.
Ord. 526 § 2(B), 2000)
15.02.050 Section 202.11 added.
Section 202.11 of the Uniform Administrative Code, 1997 Edition, is added to read as follows:
202.11 Permit History Survey. Upon receipt of a written request from the owner of a parcel of property
for a Permit History Survey, and the payment of the fee specified in a resolution duly adopted by the City
Council, the Building Official may review City records and provide a report listing those building, plumbing,
electrical and mechanical permits that have been issued for that specific parcel of property.
Ord. 526 § 2(B), 2000)
15.02.060 Section 204.1 amended.
Section 204.1 of the Uniform Administrative Code, 1997 Edition, is amended to read as follows:
204.1 General. In order to hear and decide appeals of orders, decisions or determinations relating to
California building codes (Title 15 of the PMC), the City Council shall serve as the Appeals Board and
Hearing Officer as described in Chapter 2.20 of the City of Poway Municipal Code. Any action deemed
to be a nuisance by the Development Services Director or designee in accordance with PMC Section
17.54.020 or Chapter 8.80 is not considered an order, decision or determination relating to building codes.
The City Council may, by resolution, form and appoint three or more individuals to an Appeals Board to
function as the Appeals Board and Hearing Officer under this Section.
Ord. 526 § 2(B), 2000)
15.02.070 Section 206 added.
Section 206 of the Uniform Administrative Code, 1997 Edition, is added to read as follows:
Sec. 206 Public Nuisance. Any building or structure erected, constructed, enlarged, altered, repaired,
moved, improved, removed, converted, or demolished, equipped, used, occupied, or maintained contrary
to the provisions of this code shall be and the same is hereby declared to be unlawful and a public
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nuisance. The City Attorney may commence necessary proceedings for the abatement, removal and/or
enjoinment of any such public nuisance in the manner provided by law in accordance with Chapter 1.08,
1.10, 8.72 and 15.32 of the City of Poway Municipal Code. Any failure, refusal or neglect to obtain a
permit as required by Chapter 3 of this code shall be prima facie evidence of the fad that a public nuisance
has been committed in connection with the erection, construction, enlargement, alteration, repair,
movement, improvement, removal, conversion or demolition, equipment, use, occupation, or
maintenance of a building or structure erected, constructed, enlarged, altered, repaired, moved,
improved, removed, converted or demolished, used, occupied, or maintained contrary to the provisions
of this code or the technical codes.
Ord. 526 § 2(B), 2000)
15.02. 080 Section 301.1 amended.
Section 301.1 of the Uniform Administrative Code, 1997 Edition, is amended by adding the following:
Permits shall not be issued for construction on a site where the City Engineer determines that a grading
permit or public improvements are required until the City Engineer or his/her representative notifies the
Building Official in writing that the grading or public improvements work has been satisfactorily completed
to allow building permits to be issued. Permits shall not be issued if the City Engineer determines that
flooding or geologic conditions at the site may endanger the public safety or welfare.
Ord. 526 § 2(B), 2000)
15.02.090 Section 304 amended.
Section 304 of the Uniform Administrative Code, 1997 Edition, is amended to read as follows:
SECTION 304 — FEES
304.1 General. Fees shall be assessed as set forth in a resolution duly adopted by the City Council.
304.2 Permit Fees. The fee for each permit shall be as set forth in a resolution duly adopted by the City
Council.
The determination of value or valuation under any of the provisions of these codes shall be made by the
Building Official. The value to be used in computing the building permit and building plan review fees
shall be the total value of all construction work for which the permit is issued as well as all finish work,
painting, roofing, electrical, plumbing, heating, air-conditioning, elevators, fire -extinguishing systems and
other permanent equipment. The permit fees for those projects subject to State energy code compliance
and/or State disabled access regulation compliance shall be as set forth in a resolution duly adopted by
the City Council.
304.3 Plan Review Fees. When submittal documents are required by Section 302.2, a plan review fee
shall be paid at the time of submitting the submittal documents for plan review. Said plan review fee shall
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51 of 63 April 2, 2019, Item #1.5
be 65 percent of the building permit fee shown in a resolution duly adopted by the City Council. The plan
review fees for electrical, mechanical and plumbing work shall be equal to 25 percent of the total permit
fee set forth in a resolution duly adopted by the City Council. The plan review fees for State energy code
compliance and/or State disabled access regulation compliance shall be as set forth in a resolution duly
adopted by the City Council. The plan review fees specified in this section are separate fees from the
permit fees specified in Section 304.2 and are in addition to the permit fees.
When submittal documents are incomplete or changed so as to require additional plan review or when
the project involves deferred submittal items as defined in Section 302.4.2, an additional plan review fee
shall be charged at the rate shown in a resolution duly adopted by the City Council.
304.4 Expiration of Plan Review. Applications for which no permit is issued within one year following the
date of application shall expire by limitation and plans and other data submitted for review may thereafter
be returned to the applicant or destroyed by the Building Official. In order to renew action on an application
after expiration, the applicant shall resubmit plans and pay a new plan check fee.
304.5 Investigation Fees: Work without a Permit.
304.5.1 Investigation. Whenever work for which a permit is required by this code has been commenced
without first obtaining a permit, a special investigation shall be made before a permit may be issued for
such work.
304.5. 2 Fee. An investigation fee, in addition to the permit fee, shall be equal to the amount of the permit
fee required by this code. The minimum investigation fee shall be the same as the minimum permit fee
set forth in a resolution duly adopted by the City Council. The payment of such investigation fee shall not
exempt an applicant from compliance with all other provisions of either this code or the technical codes
nor from any penalty prescribed by law.
304.6 Fee Refunds. The Building Official may authorize refunding of a fee paid hereunder which was
erroneously paid or collected.
The Building Official may authorize refunding of not more than 80 percent of the permit fee paid when no
work has been done under a permit issued in accordance with this code.
The Building Official may authorize refunding of not more than 80 percent of the plan review fee paid
when an application for a permit for which a plan review fee has been paid has been withdrawn or
canceled before any examination time has been expended.
The Building Official shall not authorize the refunding of any fee paid except upon written application filed
by the original permittee not later than 180 days after the date of fee payment.
304.7 Permit History Survey Fee. The fee for conducting a permit history survey of an existing structure
or facility shall be the fee as set forth in a resolution duly adopted by the City Council.
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304.8 Demolition Permit Fee. The fee for a permit to demolish a building shall be as set forth in a
resolution duly adopted by the City Council.
304. 9 Fee Exceptions. The Government of the United States of America, the State of California, local
school districts proposing work exempt from building permits, the County of San Diego, and the City of
Poway shall not be required to pay any fees for filing an application for a building permit pursuant to this
code unless City plan review and inspection services are requested. If so requested, the fee schedules
adopted in a resolution by the City Council shall apply.
Ord. 526 § 2(B), 2000)
15.02.100 Section 305.2.1 added.
Section 305.2.1 of the Uniform Administrative Code, 1997 Edition, is added to read as follows:
305.2.1 Circuit Cards. A complete schedule of circuits, showing the number and arrangement of outlets
on each circuit, shall be posted at the service equipment location prior to requesting inspection of rough
electrical wiring. Circuit cards furnished by the Building Official shall be used for this purpose. In lieu of a
circuit card, an approved wiring plan may be used.
Ord. 526 § 2(B), 2000)
15.02.110 Section 305.5 amended.
Section 305.5 of the Uniform Administrative Code, 1997 Edition, is amended by adding a new No. 5 under
Required Building Inspections and renumbering the original No. 5 to read number 6 as follows:
5. Intermediate roofing inspection. An intermediate roofing inspection to be made when the roof covering
is approximately 50% installed to verify fastening and undedayment requirements of the roof covering
assembly.
6. Final inspection. To be made after finish grading and the building is completed and ready for
occupancy.
Ord. 526 § 2(B), 2000)
15.02.120 Section 309.3 amended.
Section 309.3 of the Uniform Administrative Code, 1997 Edition, is amended to read as follows:
309.3 Certificate Issued. After final inspection where the Building Official has inspected the building or
structure and has found no violations of the provisions of this code or other laws which are enforced by
the Building Division, the Building Official shall indicate approval on the Inspection Record Card, and the
signed Inspection Record Card shall serve as the Certificate of Occupancy.
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Ord. 526 § 2(B), 2000)
15.02.130 Tables No. 3-A through No. 3-H deleted.
Tables No. 3-A, No. 3-13, No. 3-C, No. 3-D, No. 3-E, No. 3-F, No. 3-G and No. 3-H of the Uniform
Administrative Code, 1997 Edition, are deleted. (Ord. 526 § 2(B), 2000)
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CHAPTER 15.03
HIERARCHY OF CODES
15.03.010. Conflicts
Notwithstanding any other provision of the PMC, in case of conflict among Titles of the PMC and codes
enumerated and adopted by reference therein, the first named Title or code below shall govern over those
following:
A. PMC Title 17 (Zoning)
B. PMC Title 13 (Public Services)
C. PMC Title 8 (Health and Safety)
D. PMC Title 15 (Buildings and Construction)
E. To the maximum extent permissible by law, all state and other uniform Codes incorporated
by reference in PMC Title 15.
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Chapter 15.32
ABATEMENT OF DANGEROUS BUILDINGS
Sections.
15.32.010 Adoption of the Uniform Code for Abatement of Dangerous Buildings.
15.32.020 Deletions, revisions and additions.
15. 32.030 Section 201 amended.
15.32.040 Section 202 amended.
15.32.050 Section 204 amended.
15.32.060 Section 205 is deleted.
15.32.070 Chapter 4 amended.
15.32.010 Adoption of the Uniform Code for Abatement of Dangerous Buildings.
There is adopted and incorporated by reference herein the Uniform Code for Abatement of Dangerous
Buildings, 1997 Edition, promulgated and published by the International Code Council, including such
provisions as are hereinafter added, deleted or amended.
15.32.020 Deletions, revisions and additions.
The deletions, revisions and additions set forth in Sections 201, 202, 204, 205 and 801 and Chapters 4, 5,
6 and 7 are made to the Uniform Code for the Abatement of Dangerous Buildings.
15.32.030 Section 201 amended.
Section 201 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as follows
Sec. 201.
a) Administration. The Director of Development Services or his/her designee is hereby
authorized to enforce the provisions of this code.
The Director of Development Services shall have the power to render interpretations of this
code and to adopt and enforce rules and regulations supplemental to this code as he or she may deem
necessary in order to clarify the application of the provisions of this code. Such interpretations, rules and
regulations shall be in conformity with the intent and purpose of this code.
b) Inspections. The health officer, the fire marshal, the building official and the Director of
Development Services or their designees are hereby authorized to make such inspections and take such
actions as may be required to enforce the provisions of this code.
Authorized representative" shall include the officers and their designees named in Section 201(b) and their
authorized inspection personnel.
15. 32.040 Section 202 amended.
Section 202 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as
follows:
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Sec. 202. All buildings or portions thereof which are determined after inspection by the Director of
Development Services to be dangerous as defined in this code are hereby declared to be public nuisances
and may be abated by repair, rehabilitation, demolition or removal in accordance with the procedure
specified in Section 401 of this code.
15.32.050 Section 204 amended.
Section 204 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as
follows:
Sec. 204. All buildings or structures within the scope of the code and all construction or work for which a
permit is required shall be subject to inspection by an Authorized Representative in accordance with and in
the manner provided by this code and Sections 110 and 1704 of the 2016 California Building Code.
15.32.060 Section 205 is deleted.
Section 205 of the Uniform Code for the Abatement of Dangerous Buildings is deleted from the
code.
15.32.070 Chapter 4 amended.
Chapter 4 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as
follows:
CHAPTER
NOTICES AND ORDERS OF DIRECTOR OF DEVELOPMENT SERVICES
General.
Sec. 401.
a) Commencement of Proceedings. Whenever the Director of Development Services has
inspected or cause to be inspected any building and has found and determined that such building is a
dangerous building, the Director may commence proceedings to cause the repair, vacation or demolition
of the building.
b) Notice and Order. The Director of Development Services shall issue a notice and order
directed to the record owner of the building. If readily available, the notice and order shall contain:
1. The street address and a legal description sufficient for identification of the premises upon
which the building is located.
2. A statement that the Director of Development Services has found the building to be
dangerous with a brief and concise description of the conditions found to render the building dangerous
under the provisions of Section 302 of this code.
3. A statement of the action required to be taken as determined by the Director of
Development Services.
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i) If the Director of Development Services has determined that the building or
structure must be repaired, the order shall require that all required permits be secured therefor and the
work physically commenced within such time (not to exceed 60 days from the date of the order) and
completed within such time as the Director of Development Services shall determine is reasonable under
all of the circumstances.
ii) If the Director of Development Services has determined that the building or
structure must be vacated, the order shall require that the building or structure shall be vacated within a
time certain from the date of the order as determined by the Director of Development Services to be
reasonable.
iii) If the Director of Development Services has determined that the building or
structure must be demolished, the order shall require that the building be vacated within such time as the
Director of Development Services shall determine is reasonable (not to exceed 60 days from the date of
the order); that all required permits be secured therefor within 60 days from the date of the order, and that
the demolition be completed within such time as the Director of Development Services shall determine is
reasonable.
4. Statements advising that if any required repair or demolition work (without vacation also
being required) is not commenced within the time specified, the Director of Development Services:
i) will order the building vacated and posted to prevent further occupancy until the
work is completed, and
ii) may proceed to cause the work to be done and charge the costs thereof against
the property or its owner.
5. Statements advising.
i) that any person having any record title or legal interest in the building may appeal
from the notice and order or any action of the Director of Development Services to the Hearing Officer in
accordance with Chapter 2.20, provided the appeal is made in writing as provided in this code and filed
with the city clerk within 10 days from the date of service of such notice and order; and
ii) that failure to appeal will constitute a waiver of all right to an administrative hearing
and determination of the matter.
c) Service of Notice and Order. The notice and order, and any amended or supplemental
notice and order, shall be served by mail upon the record owner or posted on the property.
d) Method of Service. Service of the notice and order shall be made upon all persons entitled
thereto either by mailing a copy of such notice and order by first class mail, postage prepaid, to each such
person at his or her address as it appears on the last equalized assessment roll of the county or as known
to the Director of Development Services. If no address of any such person so appears or is known to the
Director of Development Services, then a copy of the notice and order shall be so mailed, addressed to
such person, at the address of the building involved in the proceedings. The failure of any such person to
receive such notice shall not affect the validity of any proceedings taken under this section. Service by mail
in the manner herein provided shall be effective on the date of mailing.
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Recordation of Notice and Order.
Sec. 402. If compliance is not had with the order within the time specified therein, and no appeal has been
properly and timely filed, the Director of Development Services may file in the office of the county recorder
a certificate describing the property and certifying (i) that the building is a dangerous building and (ii) that
the owner has been so notified. Whenever the corrections ordered shall thereafter have been completed or
the building demolished so that it no longer exists as a dangerous building on the property described in the
certificate, the Director of Development Services shall file a new certificate with the county recorder
certifying that the building has been demolished or all required corrections have been made so that the
building is no longer dangerous, whichever is appropriate.
Repair, Vacation and Demolition.
1. In addition to any other remedy authorized by law, any building declared a dangerous building under
this code shall be made to comply with one of the following.
i) The building shall be repaired in accordance with the current building code or other
current code applicable to the type of substandard conditions requiring repair .
ii) The building shall be demolished; or
iii) If the building does not constitute an immediate danger to the life, limb, property
or safety of the public it may be vacated, secured and maintained against entry.
2. If the building or structure is in such condition as to make it immediately dangerous to the
life, limb, property or safety of the public or its occupants, it shall be ordered to be vacated.
Notice to Vacate.
Sec. 404. (a) Posting. Every notice to vacate shall, in addition to being served as provided in Section 401(c),
be posted at or upon each exit of the building and shall be substantially the following form.
DO NOT ENTER
UNSAFE TO OCCUPY
It is a misdemeanor to occupy this building or to remove or deface this notice.
Director of Development Services, the City of Poway
b) Compliance. Whenever such notice is posted, the Director of Development Services shall
include a notification thereof in the notice and order issued by him or her under Subsection (b) of Section
401, reciting the emergency and specifying the conditions which necessitate the posting. No person shall
remain in or enter any building which has been so posted, except that entry may be made to repair, demolish
or remove such building under an active permit. No person shall remove or deface any such notice after it
is posted until the required repairs, demolition or removal have been completed and a Certificate of
Occupancy issued pursuant to the provisions of the Building Code.
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15.32.080 Chapter 5 amended.
Chapter 5 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as follows:
CHAPTER
APPEAL
General.
Section 50 Form of Appeal. Any person entitled to service under Section 401(c) may appeal any
notice and order or any action of the Director of Development Services under this code in accordance
with Chapter 2.20 of the Poway Municipal Code.
Effect of Failure to Appeal.
Section 502. Failure of any person to file an appeal in accordance with the provisions of Section 501 shall
constitute a waiver of that person's right to an administrative hearing and adjudication of the notice and
order, or any portion thereof.
Staying Order Under Appeal.
Section 503. Except for vacation orders made pursuant to Section 403, enforcement of any notice and order
of the Director of Development Services issued under this code shall be stayed during the pendency of an
appeal therefrom which is properly and timely filed, unless the Director of Development Services determines
that good cause exists to proceed with enforcement.
15.32.090 Chapter 6 deleted.
Chapter 6 of the Uniform Code for the Abatement of Dangerous Buildings is deleted from the code.
15.32.100 Chapter 7 amended.
Chapter 7 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as follows:
Chapter 7
ENFORCEMENT OF THE ORDER OF THE DIRECTOR OF DEVELOPMENT SERVICES
Compliance.
a) Sec. 70 General. After any order of the Director of Development Services made pursuant
to this code shall have become final, no person to whom any such order is directed shall fail, neglect or
refuse to obey any such order. Any such person who fails to comply with any such order is guilty of a
misdemeanor.
b) Failure to Obey Order. If, after any order of the Director of Development Services made
pursuant to this code has become final, the person to whom such order is directed shall fail, neglect or
refuse to obey such order, the Director of Development Services may (i) cause such person to be
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prosecuted under subsection (a) of this section or (ii) institute any appropriate action to abate such building
as a public nuisance.
c) Failure to Commence Work. Whenever the required repair or demolition is not commenced
within 30 days after any final notice and order issued under this code becomes effective.
1. The Director of Development Services may cause the building described in such notice
and order to be vacated by posting at each entrance thereto a notice reading:
DANGEROUS BUILDING
DO NOT OCCUPY
It is a misdemeanor to occupy this building or to remove or deface this notice.
Director of Development Services, the City of Poway
2. No person shall occupy any building which has been posted as specified in this subsection.
No person shall remove or deface any such notice so posted until the repairs, demolition or removal ordered
by the Director of Development Services have been completed and a Certificate of Occupancy issued
pursuant to the provisions of the Building Code.
3. The Director of Development Services may, in addition to any other remedy herein
provided, cause the building to be repaired to the extent necessary to correct the conditions which render
the building dangerous as set forth in the notice and order; or, if the notice and order required demolition,
to cause the building to be sold and demolished or demolished and the materials, rubble and debris
therefrom removed and the lot cleaned. Any such repair or demolition work shall be accomplished and the
cost thereof paid and recovered in the manner hereinafter provided in this code. Any surplus realized from
the sale of any such building, or from the demolition thereof, over and above the cost of demolition and of
cleaning the lot, shall be paid over to the person or persons lawfully entitled thereto.
Extension of Time to Perform Work.
Sec. 702. Upon receipt of an application from the person required to conform to the order and an agreement
by such person that he or she will comply with the order if allowed additional time, the Director of
Development Services or designee may, in the discretion of the Director, grant an extension of time, not to
exceed an additional 120 days, within which to complete said repair, rehabilitation or demolition, if the
Director of Development Services determines that such an extension of time will not create or perpetuate
a situation imminently dangerous to life or property.
Interference with Repair or Demolition Work Prohibited.
Sec. 703. No person shall obstruct, impede or interfere with any officer, employee, contractor, or authorized
representative of this jurisdiction or with any person who owns or holds any estate or interest in any building
which has been ordered repaired, vacated or demolished under the provisions of this code; or with any
person to whom such building has been lawfully sold pursuant to the provisions of this code, whenever
such officer, employee, contractor or authorized representative of this jurisdiction, person having an interest
or estate in such building or structure, or purchaser is engaged in the work of repairing, vacating and
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repairing, or demolishing any such building, pursuant to the provisions of this code, or in performing any
necessary act preliminary to or incidental to such work or authorized or directed pursuant to this code.
15.32.110 Section 801 amended.
Section 801 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as follows:
a) Sec. 80 Procedure. When any work of repair or demolition is to be done pursuant to
Section 701(c)(3) of this code, the work shall be accomplished by personnel of this jurisdiction or by private
contract under the direction of the Director of Development Services. Plans and specifications therefor may
be prepared by the Director of Development Services, or his/her representative, or he/she may employ
such architectural and engineering assistance on a contract basis as he/she may deem reasonably
necessary. If any part of the work is to be accomplished by private contract, standard contractual
procedures shall be followed.
b) Costs. The cost of such work may be made a special assessment or lien against the
property involved or may be made a personal obligation of the responsible person(s), whichever the
legislative body of this jurisdiction shall determine is appropriate.
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Chapter 17.54
ENFORCEMENT
Sections:
17.54.010 Enforcement by City office.
17.54.020 Actions deemed nuisance.
17.54.030 Remedies.
17.54.040 Violation — Penalty.
17.54.010 Enforcement by City office.
The City Council, the City Attorney, the City Manager, the Police Chief, the Development Services Director,
the Director of Community Services, the City Clerk, and all officials or their designees charged with the
issuance of licenses or permits, shall enforce the provisions of this title. Any permit, certificate, or license
issued in conflict with the provisions of this title shall be void.
17.54.020 Actions deemed nuisance.
All erection, construction, enlargement, alteration, repair, moving, removal, conversion, demolition,
occupancy, equipment, use, height, area and maintenance of buildings and structures within the City of
Poway shall be in conformance with the Poway Municipal Code as determined by the Development
Services Director or their designee.—Any building or structure erected hereafter, or any use of property
contrary to the provisions of a duly approved development permit, minor development review, variance,
conditional use permit, or administrative permit, and/or this title is unlawful and a public nuisance per se
and subject -to abatement, citations and penalties in accordance with PMC Chapters 1.08, 1.10, 8.72 and
15.32.
17.54.030 Remedies.
All remedies concerning this title shall be cumulative and not exclusive. The conviction and punishment of
any person or responsible person, as defined in PMC Chapter 1.08 and 1.10 , shall not relieve such persons
from the responsibility of correcting prohibited conditions or removing prohibited buildings, structures, signs,
or improvements, and shall not prevent the enforced correction or removal thereof.
17.54.040 Violation — Penalty.
Any responsible person, partnership, organization, firm or corporation, whether as principal, agent,
employee or otherwise, violating any provisions of this title or violating or failing to comply with any order to
regulation made under this title, shall be guilty of a misdemeanor and/or assessed other penalties and,
upon conviction or determination thereof, shall be punishable as provided by PMC Chapters 1.08 , 1. 10,
8.72 and 15.32.
BE
63 of 63 April 2, 2019, Item #1.5
T OF ('OIG
City of Poway
COUNCIL AGENDA REPORT
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Tina M. White, City Manager
CONTACT: Wendy Kaserman, Assistant City Manager
Nicole Murphy, Senior Management Analyst858- 668-4505 or nmurphy@poway.org
APPROVED
APPROVED AS AMENDED
SEE MINUTES)
DENIED
REMOVED
CONTINUED
RESOLUTION NO.
SUBJECT: Approval of First Lease Amendment between the City of Poway and
New Cingular Wireless PCS, LLC for the Operation of a
Telecommunications Facility at 12700 Sagecrest Drive, Poway CA
92064 (Pomerado Reservoir)
Summary:
In May 1997, the City Council approved a lease with New Cingular Wireless PCS, LLC (AT&T
Wireless) for the installation of a wireless telecommunications facility (cell site) at Pomerado
Reservoir. The agreement is set to expire in January 2020. The City was contacted by New
Cingular and advised of its interest in renegotiating and extending the terms of the lease
agreement. Staff has negotiated the terms and conditions to amend the lease agreement. The
amendment has been reviewed and approved by the City Attorney and by legal counsel for New
Cingular Wireless PCS, LLC.
Recommended Action:
It is recommended that the City Council approve the attached first amendment to the lease
agreement with New Cingular Wireless PCS, LLC and authorize the City Manager to execute the
agreement on behalf of the City.
Discussion:
City staff has been working with MD7, authorized representatives of New Cingular Wireless PCS,
LLC (New Cingular), to negotiate an amendment to the cell site lease agreement at Pomerado
Reservoir. The initial term of the agreement was five years, with three additional five-year
extensions. The initial rent for the first year of the agreement was $21,600 and has been adjusted
by five percent (5%) annually. The rent charged in 2018 was $54,584. The agreement expires
on January 16, 2020 with no further options to extend the agreement.
The new terms of the lease amendment would be effective starting on January 17, 2020. The
initial term is five years with up to five (5) additional five-year extension terms. With the execution
of the lease amendment, a one-time aggregate payment of $10,000 is due from New Cingular.
Rent payments are to be paid annually on the anniversary of the commencement date, which will
be January 17 of each subsequent year.
During lease renegotiations, New Cingular requested a review of the annual rent as it believed
the rent for this location escalated above current market values for the area including similar cell
sites in Poway. Under the current agreement, rent has increased annually at a rate of five percent
5%). This is a higher rate than most of the City's cell site agreements which utilize the Consumer
Price Index (CPI) to calculate annual rent increases. The amendment revises the rental terms to
1 of 32 April 2, 2019 Item #A.L—
Approval of First Lease Amendment with New Cingular Pomerado (Reservoir)
April 2, 2019
Page 2
increase the annual rent by a factor of three percent (3%), rather than the CPI, for ease of
administration and tracking of revenue. The City executed six cell site lease extensions over the
last two years with an average rent of $41,920 in 2018. Based on this information, the City and
New Cingular agreed to a reduction in rent, with the execution of the lease amendment, in the
amount of $44, 473 for the first year of the new lease term in 2020.
The proposed lease amount is consistent with the average rates charged to other wireless
telecommunication vendors located at the similar sites within the City. Historically, the City has
used the Annual Base License Fee Matrix of Rates (Fee Matrix) from the Caltrans
Telecommunications (Wireless) Licensing Program as a benchmark to determine rents for cell
sites. The rent proposed in the lease amendment is consistent with the published rates of the
Fee Matrix.
The City Attorney and New Cingular's legal counsel have reviewed and approved the proposed
amendment to the lease agreement. Staff recommends approval of the first lease amendment.
Environmental Review:
This item is not subject to CEQA review.
Fiscal Impact:
With the one-time aggregate payment, this lease agreement will generate no less than $246,113
in revenue for the initial five-year term of the agreement
Public Notification:
Additional notification was sent to New Cingular Wireless PCS, LLC, and MD7, representing New
Cingular Wireless PCS, LLC.
Attachments:
A. First Lease Amendment between the City of Poway and New Cingular Wireless
PCS
B. Original Lease Agreement between the City of Poway and New Cingular
Wireless PCS, LLC (New Cingular). Terms only, exhibits on file with the city
Clerk's Office.
Reviewed/Approved By: Reviewed By:
Approve
Wendy Kaserman Alan Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
2 of 32 April 2, 2019 Item #I -L
Cell Site No.: SDO171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / HI
Address: 12700 Sagwrest Drive
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment"), dated
as of the latter of the signature dates below (the "Effective Date"), is by and between the City of
Poway, having a mailing address of 13325 Civic Center Drive, Poway, CA 92064 (hereinafter
referred to as "Landlord"), and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, successor by merger to AT&T Wireless PCS, LLC, having a mailing address of 575
Morosgo Drive NE, Atlanta, GA 30324 (hereinafter referred to as "Tenant").
WHEREAS, Landlord and Tenant (or its respective predecessor -in -interest) entered into
a Lease Agreement dated January 17, 2000, (hereinafter, the "Lease"), whereby Landlord leased
to Tenant certain Premises therein described, that are a portion of the property ("Owned
Premises") located at 12700 Sagecrest Drive, Poway, CA, 92064; and
WHEREAS, the term of the Lease will expire on January 16, 2020, and the parties
mutually desire to extend the term of the Lease, memorialize such renewal period and modify the
Lease in certain other respects, all on the terms and conditions contained herein; and
WHEREAS, Landlord and Tenant desire to amend the Lease to adjust the Rent in
conjunction with the modifications to the Lease contained herein; and
WHEREAS, Landlord and Tenant desire to amend the Lease to modify the notice section
thereof; and
WHEREAS, Landlord and Tenant desire to amend the Lease to permit Tenant to add,
modify and/or replace equipment in order to be in compliance with any current or future federal,
state or local mandated application, including but not limited to emergency 911 communication
services; and
WHEREAS, Landlord and Tenant, in their mutual interest, wish to amend the Lease as set
forth below accordingly.
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree that the recitals set forth above are incorporated herein as if set forth in their entirety and
further agree as follows:
1. Extension of Term. The term of the Lease shall be amended to provide that commencing
on January 17, 2020 ("New Commencement Date"), the Lease will automatically renew, upon
the same terms and conditions of the Lease, as amended herein, for up to six (6) separate
consecutive additional periods of five (5) years each (each such five (5) year additional period is
hereinafter referred to as an "Additional Extension Term", without further action by Tenant
unless Tenant notifies Landlord in writing of Tenant's intention not to renew the Lease at least
sixty (60) days prior to the expiration of the current term or the then current Additional Extension
Category r, 4, & 5 Amendment ftrm
3 of 32 Attachment A April 2, 2019 Item #,l(—
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego I Las Vegas / HI
Address: 12700 Sagecrest Drive
Term. The current term and the Additional Extension Term are collectively referred to as the
Term".
2. Rent. Commencing on January 17, 2020, the current Rent payable under the Lease shall
be Forty -Four Thousand Four Hundred Seventy -Three and No/100 Dollars ($44,473.00) per year,
and shall continue during the Term, subject to adjustment as provided herein. Paragraph 3(a) of
the Lease shall be amended to provide that Rent shall be adjusted as follows: on each anniversary
of the New Commencement Date, including throughout any Additional Extension Term exercised,
the annual Rent will increase by three percent (3%) over the Rent paid during the previous year.
3. Aggregate Payment. Tenant shall pay Landlord a one-time payment of Ten Thousand
and No/100 Dollars ($10,000. 00) to reimburse Landlord for its costs in negotiating this First
Amendment and administering the Lease ("Aggregate Payment"). The Aggregate Payment shall
not be considered Rent and is due forty-five (45) days after the New Commencement Date.
4. Insurance. If Tenant subcontracts any work under the Lease, Tenant shall require that
each subcontractor includes Landlord as an additional insured as their interest may appear under
the subcontractor's general liability insurance policy and any excess liability insurance
policy. Tenant is solely responsible to ensure that all of its subcontractors, or anyone else acting
on its behalf or at its direction, complies with the insurance requirements set forth in the Lease.
5. Emergency 911 Service. In the future, without the payment of additional Rent, or any
other consideration, and at a location mutually acceptable to Landlord and Tenant, Landlord agrees
that Tenant may add, modify and/or replace equipment in order to be in compliance with any
current or future federal, state or local mandated application, including but not limited to
emergency 911 communication services.
6. Right of First Refusal. Notwithstanding any other provisions contained in the Lease, if
at any time after the date of this First Amendment, Landlord receives a bona fide written offer
from a third party seeking any sale, conveyance, assignment or transfer, whether in whole or in
part, of any property interest in or related to the Premises, including without limitation any offer
seeking an assignment or transfer of the Rent payments associated with the Lease or an offer to
purchase an easement with respect to the Premises ("Offer"), Landlord shall immediately famish
Tenant with a copy of the Offer. Tenant shall have the right within ninety (90) days after it receives
such copy to match the financial terms of the Offer and agree in writing to match such terms of
the Offer. Such writing shall be in the form of a contract substantially similar to the Offer, but
Tenant may assign its rights to a third party. If Tenant chooses not to exercise this right or fails to
provide written notice to Landlord within the ninety (90) day period, Landlord may sell, convey,
assign or transfer such property interest in or related to the Premises pursuant to the Offer, subject
to the terms of the Lease. If Landlord attempts to sell, convey, assign or transfer such property
interest in or related to the Premises without complying with this Paragraph 6, the sale,
conveyance, assignment or transfer shall be void. Tenant's failure to exercise the right of first
refusal shall not be deemed a waiver of the rights contained in this Paragraph 6 with respect to any
future proposed conveyances as described herein. Nothing in this Paragraph 6 requires Landlord
Category 3, 4, & 5 Amendment Fonn
4 of 32 April 2, 2019 Item #_WL
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Nixed Asset No.: 10085088
Market: San Diego / Las Vegas / HI
Address: 12700 Sagecrest Drive
to sell the any portion of the Premises to either a third party or a Tenant when an Offer is received.
Further, Tenant acknowledges that Landlord must follow all applicable provisions of law relating
to the sale of publically owned property, and therefore, in some cases (and in particular, depending
on the type of entity that has made an Offer), the Landlord may be prohibited from selling the
Premises to Tenant. Where Landlord has a legal obligation to sell, convey, assign or transfer in
portion of the Premises to a third party, this Paragraph 6 shall have no force and effect.
7. Charges. All charges payable under the Lease such as utilities and taxes shall be billed
by Landlord within one (1) year from the end of the calendar year in which the charges were
incurred. The foregoing shall not apply to monthly Rent which is due and payable Without a
requirement that it be billed by Landlord. The provisions of this subparagraph shall survive the
termination or expiration of the Lease.
8. Acknowledgement. Landlord acknowledges that: 1) this First Amendment is entered
into of the Landlord's free will and volition; 2) Landlord has read and understands this First
Amendment and the underlying Lease and, prior to execution of this First Amendment, was free
to consult with counsel of its choosing regarding Landlord's decision to enter into this First
Amendment and to have counsel review the terms and conditions of this First Amendment; 3)
Landlord has been advised and is informed that should Landlord not enter into this First
Amendment, the underlying Lease between Landlord and Tenant, including any temilnation or
non -renewal provision therein, would remain in full force and effect.
9. Notices. Paragraph 30 of the Lease is hereby deleted in its entirety and replaced with the
following:
a) NOTICES. All notices, requests, demands and communications hereunder will be given by
first class certified or registered mail, return receipt requested, or by a nationally recognized
overnight courier, postage prepaid, to be effective when properly sent and received, refused or
returned undelivered. Notices will be addressed to the parties as follows:
If to Tenant:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT (CA); Fixed Asset No.:
10085088
575 Morosgo Drive NE
Atlanta, GA 30324
With a required copy of the notice sent to the address above to AT&T Legal at:
New Cingular Wireless PCS, LLC
Attn: Legal Department — Network Operations
Re: Cell Site #: SDO171
Category 3, 4, & 5 Amendment Form
6 of 32 April 2, 2019 Item #Lp_
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas/ HI
Address: 12700 Sagecrest Drive
Cell Site Name: POWAY WATER TANK SAGECREST WT (CA); Fixed Asset No:
10085088
208 S. Akard Street
Dallas, Texas, 75202- 4206
A copy sent to the Legal Department is an administrative step which alone does not constitute
legal notice.
And as to Landlord:
City of Poway
13325 Civic Center Drive
Poway, CA 92064
b) In the event of a change in ownership, transfer or sale of the Owned Premises, within ten
10) days of such transfer, Landlord will send the below documents to Tenant. In the event Tenant
does not receive such appropriate documents, Tenant shall not be responsible for any failure to
pay the current landlord
i) New deed to Owned Premises
ii) New W-9
iii) New Payment Direction Form
iv) Full contact information for new Landlord including all phone numbers
Either party hereto may change the place for the giving of notice to it by thirty (30) days
prior written notice to the other as provided herein."
10. Memorandum of Lease. Either party will, at any time upon fifteen (15) days prior
written notice from the other, execute, acknowledge and deliver to the other a recordable
Memorandum of Lease substantially in the form of the Attachment 1. Either party may record this
memorandum at any time, in its absolute discretion.
11. Other Terms and Conditions Remain. In the event of any inconsistencies between the
Lease and this First Amendment, the terms of this First Amendment shall control. Except as
expressly set forth in this First Amendment, the Lease otherwise is unmodified and remains in full
force and effect. Each reference in the Lease to itself shall be deemed also to refer to this First
Amendment.
12. Capitalized Terms. All capitalized terms used but not defined herein shall have the same
meanings as defined in the Lease.
NO MORE TEXT ON THIS PAGE - SIGNATURES TO FOLLOW ON NEXT PAGE]
Category 3, 4, & 5 Amendment Form
6 of 32 April 2, 2019 Item #-Lill—
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / Ii!
Address: 12700 Sagecrest Drive
IN WITNESS WHEREOF, the parties have caused their properly authorized
representatives to execute this First Amendment on the dates set forth below,
LANDLORD: TENANT:
City of Poway New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By:
Print Name:
Title:
Date:
By: AT&T Mobility Corporation
Its: Manager
By:
Print Name:
Title:
Date:
ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
5
Category 3, 4, & 5 Amendment Fom
7of32 April 2, 2019 Item #1(4z—
Cell Site Na: SDO171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / HI
Address: 12700 Sagecrest Drive
LANDLORD ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of
G'11 before me,
insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature
Category 3, 4, & 5 Amendment Farm
8 of 32
Sear)
April 2, 2019 Item #i.10_
Cell Site No.: SDO171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / H1
Address: 12700 Sag=est Drive
TENANT ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of
in before me,
insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/herhheir authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature
Category 3, 4, & 5 Amendment Form
9 of 32
Seal)
April 2, 2019 Item #-U—
Cell Site No.: SDOl71
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: Sao Diego / Las Vegas / HI
Address: 12700 Sageerest Drive
Attachment 1
Memorandum of Lease
Category 3, 4, & 5 Amendment Pmm
10 of 32 April 2, 2019 Item #1-6—
Recording Requested By
When Recorded Return To:
New Cingular Wireless PCS, LLC
575 Morosgo Drive
Atlanta, GA 30324
Attn: Network Real Estate Administration
APN: 314-371-21-00
Space Above This Line For Recorder's Use Only)
Re: Cell Site #: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT (CA)
Fixed Asset Number: 10085088
State: CA
County: San Diego
MEMORANDUM OF LEASE
This Memorandum of Lease is entered into on this _ day of , 201, by and between
City of Poway, having a mailing address at 13325 Civic Center Drive, Poway, CA 92064 (hereinafter referred to as
Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor by merger to
AT&T Wireless PCS, LLC, having a mailing address of 575 Morosgo Drive NE, Atlanta, GA 30324 (hereinafter
referred to as "Tenant").
1. Landlord and Tenant (or their predecessors in interest) entered into a certain Lease Agreement dated
January 17, 2000, as amended by that certain First Amendment to Lease Agreement dated
201_, (hereinafter, collectively, the "Lease') for
the purpose of installing, operating and maintaining a communications facility and other
improvements at Landlord's real property located in the City of Poway, County of San Diego,
commonly known as 12700 Sagecrest Drive. All of the foregoing are set forth in the Lease.
2. Commencing on January 17, 2020, the Lease shall extend with six (6) successive five (5) year
options to renew, and the Rent shall be modified in the manner set forth in the First Amendment.
3. The portion of the land being leased to Tenant (the "Premises") is described in Exhibit 1 annexed
hereto.
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the Lease, all of
which are hereby ratified and affirmed. In the event of a conflict between the provisions of this
Memorandum of Leese and the provisions of the Lease, the provisions of the Lease shall control.
The Lease shall be binding upon and inure to the benefit of the parties and their respective heirs,
successors, and assigns, subject to the provisions of the Lease.
NO MORE TEXT ON THIS PAGE - SIGNATURES TO FOLLOW ON NEXT PAGE]
1-
11 of 32 April 2, 2019 Item #1—
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year
first above written.
LANDLORD:
City of Poway
By:
Print Name:
Title:
TENANT:
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
Print Name:
Title:
Date: Date:
ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
2.
12 of 32 April 2, 2019 Item # (• o
LANDLORD ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
before me,
insert name and title of the
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature Seal)
3-
13 of 32 April 2, 2019 Item #1-6_
TENANT ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
before me,
insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct
WITNESS my hand and official seal.
Signature
4-
Seal)
14 of 32 April 2, 2019 Item #1,(,L—
EXHIBIT 1
DESCRIPTION OF PREMISES
Page 1 of 1
to the Memorandum of Lease dated 20_, by and between the City of Poway, as
Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability company, as Tenant.
The Premises are a portion of the Property described and/or depicted as follows:
Property Legal Description:
THE LAW REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN
DIEGO, AND IS DESCRIBED AS FOLLOWS;
ALL THAT PORTION OF THE NORTH HALF OF THE SOUTHEAST QUARTER OF SECTION 20
TOWNSHIP 14 SOUTH, RANGE 2 NEST, SAN BERNARDINO 8ASE AND MERIDIAN, IN THE COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, LYING WITHIN THAT CERTAIN PARCEL OF LAND SHOWN
ANO DELINEATED IN THE CITY OF POWAY TRACT NO. 12880 AM FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID SAN DIEGO COUNTY ON OCT08ER 17, 1991 AS FILE NO. 91-
0538753 OF OFFICIAL RECORDS AS:
NOT A PART `MHOS OF THE CITY OF POWAY` PER DOC. REC. 11-21-80 F/P 80-392581.
5-
75 of 32 April 2, 2019 Item #I-_
LEASE AGREEMENT
This Lease Agreement (•Lease') is entered into this 17th day of January, 2000, byandbetweentheCityofPoway (`landlord') and AT&T Wirers ('Tenanto).
A. Landlord is the owner in fee simple of a parcel of land located in the City of Poway,
San Diego County, State of California, legally described on the attached Exhibit A (the
Owned Premises), on which a reservoir ithe'Ressmirh is located. The sueeet address of
the Owned Premises is 12700 Sagecrest Drive.
B. Tenant desires to lease space on the Owned Premises for the installation and
operation of certain antenna facilities ('Antenna Facilites] for use In connection with its
communications business.
C. Accordingly, the parties are entering into this Lease on the terns and condkions set
forth below.
In consideration of their mutual eovenaMs, the partes agree as follows:
1. L Landlord leases to Tenant and Tenant leases from Landlord a
portion of the Owned Premises, including space (the'Prernlm9 on the Reservoir and
Reservoir Site ('Resevoirff), as shown on the Site Plan attached as Exhibit a. Tenant
Intends to locate its Antenna Fadlites as described more fully on the attached Exhibit C on
the Premises. Tenant may not add additional equipment and/or antennas from the shown
on Exhibit C without the prior written approval of the Landlord.
Landlord reserves the right to require Tenant to relocale its facilities to another
location on the Reservoir and/or Reservoir Site. Tenant shall complete the relocation of its
facilites within sixty (60) days after written notice from Landlord. The relocation shall be
at Tenant's expense, unless the Landlord's relocation requifhment results from Landlord's
desire to lease space on the reservoir to nongovetmttertal third -party uses. In that case,
the Landlord will require the third -party user to reimburse Tenant for the reasonable
relocation costs of Tenant. Relocation shall not result in a lessening of Tenant's ability to
use the site for its intended purpose, or the quality of such use.
This Lease is not a franchise pursuant to Chapter 5.60 of the Poway Municipal Code
nor is it a permit to use the rights-of-way under Chapter 12.04 of the Poway Municipal
Code. Any such franchise or permit must be obtained separately from Landlord.
16ot32 - Attachment B April 2, 2019 Item #-LL
2• 1=. The term of this Lease shall be five (5) years, commencing on January 17,
2000, (The 'Commencement Date9 and ending January 16, 2oo5. This Lease will be
renewable for three (3) successive fivwoNw terms contingent upon both parties mutually
agreeing on the terns, conditions, and the annual rent, sixty (60) days prior to the
anniversary of the 'Commencement Date' for each successive five jur term.
Tenant understands and agrees that this lease agreement may be revoked at anytimeinthefutureiftheLandlorddeterminesforanyreasonatanytimeinthefuturethat
this lease agreement is not in the best interest of the Landlord. The determination of lease
revocation shall be within the sole discretion of the Landlord. In the event the Landlords
revocation of a lease is not due to a breach by Tenant of one of tate conditions or
obligations provided for in this Lease Agreement, the Landlord shall give Tenant written
notice of the necessity of removal of the said facilities ninety (90) calendar days prior to the
effective date of the removal. Such removal or relocation shall be at the expense of theTenant.
If this Lease is revoked by the Landlord due to a breach by Tenant of one of its
obi illations herein, the revocation shall be effective thirty (30) calendar days from the date
of delivery of the notice of revocation and Tenant shall remove all of IIs personal property
and equipment from the Property by that time or the landlord may remove it and charge
Tenant for der cost of removal.
ff, due to technological changes, Tenant determines that It is no longer practical to
use the Premises for Taunt's Intended purposes, therm Tenant shall have the right to
terminate this lease agreement, which termination shall be effective no sooner than ninety
90) days from delivery of written notice from Tenant to Landlord provided Tenant has
removed all of Its property and equipment from the premises by that time.
3. Rea
a. Tenant shall pay Landlord as annual initial rent for the Premises the sum of
Twen4&one Thousand Six Hundred Wlars ($21,600) ("Rent). Tenant shall pay
Landlord Rent for the first year on the Commencement Date. Tenant shall pay
Landlord Rent annually in advance on each anniversary of the Commencement
Date. Rent shall be increased annually as follows:
1 Year 2 $22,680.00 ori Year 4 $25,004.76
VV Year 3 $23,814.00 4 Year 5 $26,256.00
b. Tenant shall pay Landlord a late payment change equal to five percent (s%)
of the late payment for any Payment not paid when tore. Any amounts not paid
when due shall bear interest urti I paid at the lesser of the rate of two percent (2%)
per month or the highest rate permitted by law.
17 of 32 April 2, 2019 Item #16-
C. For each additional antenna installed by Tenant beyond the initial array
described in Exhibit G, Tenant shall negotiate amendment of this Lease and shall
Pay the Landlord an additional $200 per moth for each additional antenna The
additional Rerrt shall increase annually under the same terms provided in this Lease
and shall become part of the annual Rent
d. H this Lease is terminated at a time other than on the last day of the year,
Rent shall be prorated as of the date of termination and, in the event of termination
for any reason other than nonpayment of Rent, the balance of all prepaid Rents shall
be mftrnded to the Tenant.
e. Upon termination of this Lease for any ream, Tenant shall remove its
equipment, Personal Property, Antenna FadlLties, and leasehold impnovernerrrs from
the Promises on or before the date of termination, and shall repair any damage to
the Premises caused by such equipment, normal wear and tear excepted; all at
Tenant's sole Dost and expense. Any such property or facilities which are not
removed within sixty (60) days of the end of Lease tern shall became the property
of Landlord.
f. Tenant shall reimburse landlord for Its reasonable coats and expenses,
including legal fees, incurred by Landlord in connection with the negotiation of this
Lease, all as additional Rent, payable upon execution of this Lease. The reasonable
costs and expenses shall not exceed $1,000.
4. IAM Tenant agrees to pay any real estate taxes or payments in lieu of taxes
required or contributed to as a result of this Lease.
S. t lar(P_,r rusas Tenant shall use the Premises for the installation, operon, and
maintenance of its Antenna Facilities for the transmission, reception and operation of a
communications system and ups incidental thereto and for no other uses. The Landlord
reserves the right to enter into agreements with other parties, including, but not limited to,
wireless communication carriers (hereinafter "Carrier") for use of the Pomemdo Reservoir
She. In the event that an additional Carrier is licensed to use the site, it shall be the new
Carrier's responsibility, at its expense, to ensure that such installation is constructed and
operated In accordance with applicable regulations Issued by the Federal Communications
Commission (FCC) and the CPUC. The new Carrier will provide the Landlord and existing
tenants with a certified evaluation indicating its antenna and otter facilities will not
Interfere with existing antennas or proposed antennas, and the Keservoir and/or Reservoir
Site can structurally support the additional antennas. If Carriers plans and specifications
are approved by Landlord, Landlord shall notify existing tenants of the reservoir site i n
writing as to the scheduled date and time of commencement of construction and
Installation of Carriers transmitting/receiving equipment not less than ten (10) business
days prior to such date. Any change to the additional Carrier's approved antenna type and
location and/or change in transmitter types and power output shall be made
April 2, 2019 Item #LL
compatible with existing tenants at Carver's sole expense. Landlod does not warrant to
Tenant that Tenant's use shall be free of interference resulting from other tenant's uses, and
such interference "I not constitute breach hereof by Landlord, except as provided in this
section.
Tenant shall exercise due diligence in utilizing the Property of the Landlord so as to
not Interfere with utilization of the Property by the Landlord, and Tenant agrees to comply
with any rules and regulations that the Landlord may promulgate at any time In reference
to utilization of the Property by any party other than the Landlord. Itis understood by
Tenant that the Property is used by the Landlord as a water storage reservoir and as a part
of the water transmission system of the Landlord and that it is necessary to maintain
adequate security at all times for the primary utilization of the property by the landlord.
Tenant shall, at Its expense, comply with all present and future federal, state, and
local laws, ordinances, odes and regulations (Including laws and ordinances relating to
health, radio frequency emissions, other radiation and safety) In connection with the use,
operation, maintenance, construction and/or installation of the Antenna facilities and/or
the Premises. Landlord agrees to reasonably cooperate with Tenant in obtaining, at
Tenant's expanse (including reimbursement of Landlord's reasonable atiomey and
administrative fees), any federal licenses and permits required for or substantially required
by Tenant's use of the Premises.
6. . The Antenna Facilities shall be installed on the Premises in
a good and workmanlike manner without the attachment of any corstrwion liens.
Landlord will require Tenant to paint the Antenna Facilities in a manner consistent with the
color of the reservoir or to otherwise shield the Antenna Facilities from view.
a. Tenant shall have the right, at Its sok cost and expense, to insndt, operate
and maintain on the Premises, in accordance with good engineering practices and
with all applicable FCC CPUC rules and regulations, Its Antenna Facilities as
described on Exhibit r,
b. Tenant's installation of all such Antenna Facilities shall be done according to
plans approved by Landlord. Any damage done to the Reservoir or Reservoir Site
during installation and/or during operations shall be repaired or replaced
irmnediately at Tenant's expanse and to Landlord's We satisfaction. In connection
with the installation and operation of the Antenna Facilites, Tenant shall not locate
or attach any antennas on other equipment to the Reservoir tank without the prior
written approval of the Director of Public Services or his designee. The installation
methods for attaching antennas or other equipment to the reservoir tank must be
done in a manner that will ensure the cathodic protection of the Reservoir tank and
all other City facilities and equipment located on the Pomerado Reservoir Site.
Tenant shall pay all costs and expenses in relation to maintaining the integrity of
Landlord's Reservoir in connection with tenant's Installation and operations of the
Antenna Facilities.
M9 of S2
I • - ----
April 2, 2019 Item #-L_
0 0
C. Within thirty (30) days after the Commencement Date, Tenant shall provide
Landlord with as -built drawings of the Antenna Facilities and the Improvements
installed on the Premises, which show the actual location of all equipment and
Improvements consistent with Exhibit C. Said drawings shall be accompanied by a
complete and detailed Inventory of all equipment, personal property, and Antenna
Facilities.
d. Any change to Tenants approved antenna type, number of antennas,
antatrta location and(or change in transmitter type and power output shall, at the
We expense of Tenant, be made in accordance with applicable regulations issued
by the FCC and/or the California Public Utilities Commission (CPUC). If Tenant's
pians and specifications are approved by the Landlord, Tenant shall notify all other
tenants of the Pomerado Reservoir site in writing as to the scheduled data and time
of commencement of construction on Installation of Tenant's modified equipment
not less than ten (10) business days prior to such date.
8. Equipment t tagger.
a. Tenant may update or replace the Antenna facilities from tune to time with
the prior written approval of Landlord, provided that rhe replacement facilities are
not greater in number or size chum the existing facilities and that any change in their
kxatlm on the Reservoir or Reservoir Site Is approved In writing by Landbnd.
Tenant shall submit to Landlord a detailed proposal for any such replacement
WI and any supplemental materials as may be requested, for Landlord's
evaluation and approval. As technology advances and improved Antenna are
developed and reasonably available, Landlord will require the replacement of
existing Antennas with the improved Antennas, as long as the Installation and use of
the Improved Antennas are practical and technically feasible and retain the same
functionality.
b. Tenant may replace any portion of Its Communication Facility without
Landlord's consent only if the replacement does not alter the location or appearance
of AUT's installation as approved by Landlord.
a. Tenant shall, at its own expense, maintain the Premises and any equipment
on or attached to the Premises in a safe condition, in good repair and In a manner
suitable to Landlord so as not to conflict with the use of or other leasing of the
Reservoir and Reservoir Site by Landlord. Terant shall not interfere with the use of
the Reservoir or Reservoir Site and other related facilities or other equipment or
other tenants.
b. Tenant shall have sole responsibility for the maintenance, repair, and
security of Its equipmwA, Personal property, Antenna Facilities, and leasehold
Improvements, and shall keep the same In good repair and condition during the
Lease term.
20 of 32 April 2, 2019 Item #1.6-
0
C. Tenant shall keep the Premises free of debris and anything of a dangerous,
noxious or offensive nature or which would create a hazard or undue vibration,
heat, noise or Interference.
d. in the event the landlord or any other tenant undertakes painting,
construction or other alterations on the Reservoir or Reservoir Site, Tenant shall take
reasonable measures at Tenant's cost to cover Tenant's equipment, personal
property or Anmma Facilities and protect such from paint and debris fallout which
may occur during the painting, construction or alteration process. The Landlord
and/or Tenant that is undertaking the work on the Reservoir or Owned Premises will
give each Tenant at least fifteen (15) days written notice price to commencing such
work.
WELL- -:J4
a. Tenant shall have access to the Premises by means reasonably designated by
Landlord, subject to notice requirements to Landlord in 10b., below.
b. Tenant shall have reasonable access to the Premises in order to install,
operate, and maintain Its Antenna Facilities. Tenant shall have access to such
facilities only with the prior written approval of Landlord. Tenant shall request
access to the Pre nises twenty-four (24) hones In advance, except in an emergency.
c Landlord shall be allowed and granted acoass to the Premises at reasonable
times to examine and Inspect the Premises for sakty reasons or to ensure that the
Tenant's covenants are being met, as long as Tenant's equipment, technoldgy and
proprietary hft remain secure and the operation of the Antenna Facilities is not
adversely affected.
11. Uilitim•, Tenant shall, at its expense, separately meter charms for the consumption
of electricity and other utilities associated with its use of the Premises and shall timely pay
all costs associated therein.
12. License Fere. Tenant shall pay, as they become due and payable, all fees, charges,
taxes and expenses required for licenses and/or permits required for or occasioned by
Tenant's use of the Promises.
13. . Tenant's use of the Premises is contingent upon
its obtaining all certificates, permits, zoning, and other approvals that may be required by
any federal, state or local authority. Tenant shall ereM maintain and operate Its Antenna
Facilities in accordance with site standards, statutes, ordinances, rules and regulations now
in effect or that may be Issued thereafter by the Federal Communications Commission or
any other governing bodies.
14. Interference. Tenam's installation, operation, and maintenance of its transmission
facilities shall not damage or interfere in any way with Landlord's operations or related
repair and maintenance activities or with such activities of other tenants. Tenant agrees to
cease all such actions which materially interfere with Landlord's use of the Reservoir or
Reservoir Site Immediately upon actual notice of such Interference, provided, however, in
such case, Tenant shall have the right to terminate the Lease. Landlord, at all times during
this Lease, reserves the right to take any action it deems necessary, in its sok discretion, to
repair, maintain, after or improve the property of which the Premises is a part in
connection with its operations as may be necessary including leasing parts of the Reservoir
or Reservoir Site to others as provided for in Section 5 of this Agreement.
Before approving the placement of Antenna facilities, Landlord may obtain, at
Tenant's expense, an interference study indicating whether Tenant's intended use will
inteie a with any existing communications facilities on the Reservoir or Reservoir Site, and
an engineering study indicating whether the Reservoir or Reservoir Site is able to
structurally support the Tenant's Antermae Facilities without prejudice to the Landlord's
primary use of the Reservoir.
Tenant shall be responsible for installing any equipment, at its own expense, to
eliminate any interference that may be caused by the location of the radio transmitting or
other equipment of all partes including, but not limited to, the City of Poway, Cox
Communications, PCS, L.P., and AT&T Wireless PCS, LLC on the Property.
Tenant's use and operation of its facilities shall not interfere with the use and
operation of other communication facilities on the Reservoir or Reservoir Site which pre-
existed Tenant's fac(lities. If Tenant's facilites cause interference, Tenant snail take all
measures reasonably necessary to correct and eliminate the interference. If the
Interference cannot be eliminated in a reasonable time, Tenant shall immediately cn>ase
operating its facility until the interference has been eliminated. If the Interference cannot
be eliminated within thirty (30) days after Tenant receives written notice of such
Interference, Landlord or Tenant may terminate this Lease.
15. Lem and Intlord's R.--rihm It shall be a default if Tenant fails to pay Rent or
any other sums to Landlord when due, and does not are such default within tarn (to)
business days after receipt of written notice from Landlord; or if Tenant defaults in the
performance of any other covenant or condition of this Lease and does not cure such other
default within thirty (30) days akar written notice from Landlord specifying the default
complained of, or If Tenant abandons or vacates the Premises; or If Tenant is adjudicated
bankrupt and the bankruptcy proceeding is not dismissed within sixty (60) days from its
commencement or makes any assignment for the benefit of creditors; or if Tenant becomes
Insolvent or Landlord reasonably believes itself to be insecure.
In the evert of a default, Landlord shall have the right, at its option, in addition to
and not exclusive of, any other remedy Landlord may have by operation of law, without
any further demand or notice, to reenter the Promises and eject all person therefrom, and
either (a) declare this Lease at an end, in which event Team shall Immediately pay
Landlord a sum of money equal to the til of (0 the amount of the unpaid rent accrued
22 of 32 April 2, 2019 Item #.f•.p_
through the date of termination; (ti) the amount by which the unpaid rent reserved for the
balance of the term exceeds the amount of such rental loss that the Tenant proves could be
reasonably avoided (net of the costs of such reletting); and (iii) any other amount necessary
to compensate Landlord for all detriment proximately caused by Tenart's failure to perform
its obligations under the Lease, or (b) without terminating this Lease, relet the Premises, or
any part thereof, for the account of Tenant upon such terms and conditions as Landlord
may deem advisable, and any monies received from such reletting shall be applied first to
the expenses of such reletting and collection, Including reasonable altomeys' fees, any real
estate commissions paid, and thereafter toward payment of all sums due or to become due
Landlord hereunder, and If a sufficient sum shall not be thus realized to pay such sums and
other charges, Tenant shall pay Landlord any deftedency monthly, notwithstanding that
Landlord may have received rental in excess of the rental stipulated in this Lease in
previous or subsequent months, and Landlord may bring an action therefor as such
monthly deficiency shall arise.
No reentry and taking of possession of the Premises by Landlord shall be comms d
as an election on landlord's part to terminate this Lease, regardless of the extent of
renovations and alterations by Landlord, unless a written notice of such Intention is given
to Tenant by Landlord. Notwkhstanding any reletting without termination, Landlord may
at any time thereafter elect to terminate this Lease for such previous breach.
If suit shall be brought by landlord for recovery of possession of the Premises, for
rine recovery of any rent or any other amount due under the provisions of this Leese, or
because of the bored of any other covenant, the Tenant shall pay to the Lendkxd all
expenses incurred therefor, including reasonable attorney fees.
16. Cure hilamdlad_ in the event of any default of this Lease by Tenant, the Landlord
may at any time, after notice, cure the default for the account of and at the expense of the
TerumL If Landlord Is compelled to pay or elects to pay any sum of money or to do any act
which will require the payment of any sum of money or Is compelled to incur any
expense, including reasonable attorney fees In instituting, prosecuting or defending any
action to'enforce the Landlord's rights under this Agmermernt;, the suns so paid by Landlord,
with all interest, costs and damages shall be deemed to be Additional Rental and shall be
due from the Tenant to Landlord on the first day of the month following the incurring of
the respective expenses.
17. Optional Termination, This Leese may be terminated (a) by Tenant if it is unable to
obtain or maintain any license, permit, or other governmental approval necessary for the
construction and/or operation of the Antenna Facilities or Tenant's business; (b) by
Landlord if the Landlord decides, in its sole discretion and for any reason, to discontinue
use of the Reservoir or Owned Premises and provides Tenant with a one hundred eighty
180) day notice of tanmination; (c) by Landlord if It detem4nes, in Its sole discretion and
for any reason, that the Reservoir and/or Owned Premises is not suitable for Tenant's use,
Including, but not limited to, factors relating to the condition of the Reservoir, or (d) by
Landlord if It determines In Its sole and qualified discretion that continued use of the
Resevoir or Owned Premises by Tenant is in fact a threat to health, safety or welfare or
violates applicable lavas or ordinances and forty-eight (48) hours after recaMng written
23 of 32 April 2, 2019 Item #11—
notice from Landlord, Tenant fails to resolve issue, (e) by Tenant upon ninety (90) days
prior written notice 9 Tenant determines that interference by or to Tenant's use of Premises
cannot be resolved to Tenant's reasonable satisfaction.
K ars: Tenninadae, Notice of Tenant's termination pursuant to
paragrap ,. q shall be giver to Landlord in writing by certified mail, return receipt
requested, and shall be effective upon receipt of such notice. All rentals paid for the Lease
of the Premises priorto said termination date shall be retained by Landlord. Upon such
termination, this Lease shall became null and void and the parties shall have no further
obligations to each other, except that rantel payment to the Landlord shall continue as
liquidated damages for the remainder of the Lease tern, not to exceed 150% of the annual
rent for the yeat in which such termination occurs.
19. If the Reservoir or Reservoir Site or any portion
thereof is altered, destroyed or damaged so as to materially hinder effective use of the
Antenna Facilities through no fault or negligence of Tenant, Tenant may elect to terminate
this Lease upon thirty (30) days' wripen notice to landlord. In such event, Tenant shall
promptly remove the Tower and all other of its property from the Premises and shall
restore the Premises to the sane condition as exiated prior to this Lease. Upon the
completion of such removal and restoration all rights and obligations of the parties shall
cease as of the date of the alteration, damage or destruction and Tenant shall be entfiled to
the reimbursement of any rent prepaid by Tenant, as set fads in section 3d. Landlord shall
have no obligation to undertake any repair to the Reservoir or Reservoir Site.
20. Cmidnodo. In the event the Premises are taken by eminent domain by the City
of Poway or any other governmental agency, this Lease shall terminate as of the date title
to the Premises vests in the condermning authority. In the event a porton of the Premises is
taken by eminent domain, either party shall have the right to terminate this Lease as of said
date of title transfer, by giving thirty (30), days' written notice to the other party. In the
event of any taking under the power of eminent domain, Tenant "I riot be entitled to
any portion of the award paid for the taking and the Landlord shall receive full amount of
such award. Tenant hereby expressly waives any right or claim to any portion thereof,
Including any claim for loss of business or goodwill. All damages, whetter awarded as
compensation for diminution in value of the leasehold or to the fee of the Premises, shall
belong to Landlord.
Va 41U
a. Disclaimer of IWhIft Landlord shall not at any time be liable for injury or
damage occurring Yo any pion or PmPertY from any muse whatsoever arising out
Of Tenants construction, maintenance, rWW r, use, operation, condition or
dismantling of the Premises or Tenants Antenna Facilites.
24 of 32 April 2, 2019 Item #L(Q--
b. IndemnifigWon: Tenant shall, at its sole cost and expense, indemnify and
hold harmless Landlord and all associated, affiliated, allied and subsidiary entities of
Landlord, now existing or hereinafter cheated, and their respective officers, boards,
commissions, employees, agents, attorneys, and contractors (hereinafter referred to
as "Indenniteesm), from and against
i. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, wftwut limitation,
reasonable fees and experses of attorneys, expert witnesses and consultants),
which may be imposed upon, Incurred by or be asserted against the
Indemnitees by reason of any act or omission of Tennant, its personnel
employees, agents, contractors or subcontractors, resulting in personal
Injury, bodily injury, sickness, disease or death to any person or.damage to,
loss of or destruction of tangible or intangible property, libel, slander,
Invasion of privacy and unauthorized use of any trademark trade name,
eopyrisk patent, service marc or any odrer right of any person, firm or
corporation, which may arse out of or be in any way connected with the
construction, Installation, operation, maintenance, use or Condition of the
Prem lses or Tenant's Argema Facilities or the Tenant's failure to comply
with any federal, state or local statute, ordinance or regulation.
fl. Any and all liabilities, obligations, damages, panldes, claims, liens,
costs, charges, loses and expenses (Including, w*xm limitations,
reasonable fees and expenses of atsomeys, expert witnesses and other
consult), which are imposed upon, incurred by or asserted against the
Indemnitees by reason of any claim or liar arising out of work, labor,
materials or supplies provided or supplied to Tenarn, its contractors or
subcontractors, for the Installation, constnick n, opwation, maintenance or
use of the Premises or Tenant's Antenna Fad Itties, and, upon the written
request of Landlord, Tenant shall cause such claim or lien covering
Landlord's property to be discharged or bonded within thirty (30) days
following such request
M. Any and all liability, obligation, damages, penalties, claims, liens,
cats, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed neon, incurred by or be asserted against the Indemnitees by
reason of any financing Or senmities offelmg by Tenant or its affiliates for
violations of the common law or any laws, statutes, or regulations of the
State of California, or United States, including time of the Federal Securities
and Exchange Commission, whether by Tenant or otherwise.
iv. Tenant's obligation to indemnify Indemnitees under this lease shall
not extend to claims, losses, and other matters covered hereunder that are
caused by the negligence of one or more Indemnkees.
to
26 of 32 April 2, 2019 Item #-L-L
6
G Au motion of Risk: Tenant undertakes and assumes for its officers, agents,
affiliates, contractors and subcontractors and employees (colle lively "Tenare for
the purpose of this section), all risk of dangerous conditions, if any, on or about the
Premises, and Tenant hereby agrees to indemnify and hold harmless the Lardkrd
against and from any claim asserted or liability imposed upon the IndemnNees for
personal injury or property damage to any person (other than from Indemnitee's
gross negligence) arising out of the Tenant's installation, operation, maintenance,
condition or use of the Premises or Tenant's Antenna Facilities or Tenant's failure to
comply with any federal, state or local statute, ordinance or regulation.
d. Defratse of Lndlrxd; I n the event any action or proceeding shall be brought
against the Landlord by reason of any maw for which the Landlord is indemnified
hereunder, Tenant shall, upon notice from Landlord, at Terrent's sole cost and
expense, resist and defend the same with legal counsel mutually selected by Tenant
and Landlord, provided however, that Tenant shall not admit liability in any such
matter or behalf of the Landlord without the written consent of Landlord and
provided further that Landlord shall not admit liability for, nix enter into any
compromise or settlement of, any claim for which it is indemnified herander,
without the prior written consent of Tenant.
Landlord shall give Tow prompt notice
of the making of any claim or the comnermement of any action, suit or other
Proceeding covered by the provisions of this paragraph. Nothing herein shall be
deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses
incurred by Landlord In response to arty such actions, suits or proceedings. These
expenses shall Include all out-o4ocket expenses such as attorney fees and shall
also include the res M66 value (lorry services rendered by the Landlord's
attorney, and the actual expenses of Landlord's agents, employees or expert
witnesses, and disbursements and liabilities assumed by Landlord in connection
with such suits, actions or proceedings but shall not include Womeys' fees for
services that are umrersssally duplicative of services provided Landlord by Tenant.
If Tenant requests Landlord to assist it in such del ease then Tenant shall pay all
expenses incurred by Landlord in response thereto, including defending itself with
regard to any such actions, suits or proceedings. These exposes shall include all
out-o4odcet expenses such as attorney fees and shall also include the costs of any
services rendered by the Landlord's attorney, and the actual expenses of Landlord's
agents, employees or expeR•witnesses, and disbudsernem and liabilities assumed
by Landlord In connection with such suits, actions or proceedings. These expenses
shall include all out-of-pocket expenses such as attorney fees and shall also include
the reasonable value of any services rendered by the Landlord's attorney, and the
acxrdal expenses of Landlord's agents, employees or expert witnesm, and
disbursements and liabilities assumed by Landlord In connection with such suits,
actions or proceedings but shall not include attorneys fees for services that are
unnecessarily duplicative of services provided Landlord by Tenam.
11
26 of 32 April 2, 2019 Item #_l,
0
f. Ins : During the term of the Lease, Tenant shall maintain, pr cause to
be maintained, in full force and effect and at its sole coat and expense, the following
types and limits of insurance:
I. Workers' compensation insurance meeting applicable statutory
requirements and employer's liability insurance with minimum limits of One
Hundred Thousand Dollars ($100,000) for each accident.
ii. Comprehensive commercial general liability insurance with minimum
limits of Three Million Dollars ($3,000,000) as the combined -single limit for
each occurrence of bodily injury, personal Injury and property damage. The
policy shall provide blanket contractual Ilabilily insurance for all written
contracts, and shall include coverage for products and completed operations
liability, independent contractor's liability; coverage for property damage
from perils of explosion, collapse or damage to underground utilities,
commonly known as XCU coves.
Hi. Automobile liability Insurance covering all owned, hired, and
norrowned vehicles in use by Tenant, its employees and agents, with
personal protection insurance and property protection Insuranewto comply
with the provisions of state law with minimum limits of Two Million Dollars
2,000,000) as the combined single limit for each occurrence for bodily
injury and property damage.
iv. At the alert of and during the period of any construction, builders all-
risk insurance, together with an Installation floater or equivalent property
coverage covering cables, materials, machinery and suppler of any nature
whatsoever which are to be used in or inddertal to the installation of the
Antenna Facilities. Upon completion of the installation of the Antenna
Facilities, Tenant shelf substitute for the foregoing insurance policies of fire,
extended coverage and vandalism and malicious mischief insurance on the
Antenna Facilities. The amount of insurance at all times shall be
representative of the insurable values Installed or constructed.
V. Business interruption insurance coverage In an amount sufficient to
cover such lass of revenues, for the period of time which It would take,
under normal circumstances, to repair or replace that part(s) of the Antenna
Facilities which is damaged and caused the Mss of revenue.
A. All policies other than those for Workers Compensation shall be
written an an occurrence and not on a claims made basis. .
vii. The coverage amounts set forth above may be met by a combination
of underlying and umbrella policies so long as In combination the limits
equal or exceed those stated.
12
27 of 32 April 2, 2019 Item #
viii. Tenant shall furnish certificate of insurance to Landlord before
commencement of wodc.
NaMadInaLmIk All policies, except for business intsrnipflon and worker's
compensation policies, shalt name Landlord and all associated, affiliated, allied and
subsidiary amities of landlord, now existing or hereafter created, and their
respective officers, boards, commissions, employees, agents and contractors, as
their respective interests may appear as additional insureds (herein referred to as the
Additional Insureds). Each policy which Is tD be endorsed to add Additional
Insureds hereunder, shall contain cross-Ilability wording, as fdlwvs:
9n the event of a claim being made hereunder by one insured for which another
insured is or may be liable, then this policy shall cover such insured against whom
a claim is or may be nude In the some manner as if separate policies had bear
Issued to each insured hereunder.'
h. Evidence of Insurance Certificates of insurance for each Insurance policy
required to be obtained by Tenant in compliance with this paragraph, along with
written evidence of payment of required premiums shall be filed and maintained
with Landlord annually during the tern of the Lease. Tenant shag immediately
advise Landlord of any claim or litigation that may result in liability to landkxd.
i. Cancallariruf of Policies of Insuranow All insurance policies maintained
pursuant to this Lease shall contain the following endorsement:
At least sixty (60) days prior written notice shall be given ts1 Landlord by the insurer
of any intention not to renew such policy or to cancel, replace or materially alter
same, such notice to be given by registered mail to the parties named in this
paragraph of the Lease.'
j. : Tenant agrees to indemnify and save harmless Landlord, the
Indemnitees and Additional Insureds from and against the payment of any
deductible and from the payment of any premium on any insurance policy required
to be furnished by this Lease.
k. : Tenant shall require that each and every one of its contractors
and their subcontractors who perform world on the premises m carry, in full force
and effect, workers' compensation, comprehensive public liability and automobile
liability Insurance coverages of the type which Tenant is required to obtain under
the terns of this paragraph with appropriate limits of insurance.
1. Review of Limits Once during each calendar year during the term of this
Lease, landlord may review the insurance coverages to be carried by Tenant. If
Landlord determines that higher limits of coverage are necessary to protect the
Interests of landlord or the Additional Insureds, Talent shall be so notified and shall
13
28 of 32 April 2, 2019 Item #,1L--—
obtain the additional limits of insurance, at its we cost and expense provided that
the total limits of Tenant's oDvenrge does not exceed Five Million Dollars
510001000).
22. klammlous Tenant represents and warrants that its use
of the Premises herein will not generate any hazardous substance, and it will not store or
dispose on the Premises nor transport to or over the Premises any hazardous substance.
The Tenant shall be allowed to store on site the number of batteries as shown in Exhibits B
and C of this Agreement. The batteries shown on the exhibits are to be used for
emergency backup power. No additional batteries may be stoned on the site without the
prior written approval of the Landlord. Tenant further agrees to told Landlord harmless
from and indemnify Landlord against any release of any such hazardous substance and any
damage, lass, or expense or liability resulting from such release including all attorneys'
fees, costs and penalties inured as a result thereof except any release caused by the
negligence of Landlord, its employees or agents. 'Hazardous substance shall be
interpreted broadly to mean any substance or material defined or designated as hazardous
or toric waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or
other similar term by any federal, state or local environmental law, regulation or rule
presently in affect or promulgated in the future, as such laws, regulations or rules may be
amended from time to time; and it shall be ink to include, but not be limited to,
any substance which after release into the environment will or may reasonably be
anticipated to cause sickness, death or disease.
23. Electric and blaenMir_ Fields (EMF) Indemnification. Tenant shall comply with all
prheeht and future laws, orders, and regulations relating to Electromagnetic Fields ("EMFs),
and the American National Standards Intimae (ANSti standards. Tenant, on behalf of itself
and its successors and assign, shall defend and Indemnify the Landlord from and against
all claims of injuries due to EMFs to the extent such personal injuries are asserted to be
caused by Lessee's Facilities on the Premises, Including Lessors reasonable allomey fees
and its. Tenant shall have the right to select or approve the attorney to defend Landlord
against all such claims.
24. Cathodle, InterfaMMMMiliggo. Tenant has been advised and understands that the
City of Poway has a radio controlled telemetry system for the Pornerado Reservoir facilities
and Tenant agrees not to create any interference of any kind with the City's signals and
further agrees to immediately correct any interference that may result from Tenant's
equipment or to immediately cease all operations of Tenant's equipment until coo-
Interference with the City's telemetry equipment has been obtained to the satisfaction of
the Director of Public Services or his Designee.
25. Holding over. Any holding over after the expiration of the term hereof, with the
consent old* Landlord, shall be construed to be a tenancy from month to month at two
times the nuts herein specified (prorated on a monthly basis) and shall otherwise be for the
term and on the conditions herein specified, so far as applicable
14
29 of 32 April 2, 2019 Item #-L_
26. Suboidhation to M2dUM Any mortgage now or subsequently placed upon any
property of which the Premises are a part shall be deemed to be prior in time and senior to
the rights of the Tenant under this Lease. Tenant subordinates all of its interest in the
leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall, at
Landlord's request, execute any additional documents necessary to indicate this
subordination.
27. M801 Mjbag With the execution of this lease, Tenant shall pay the Landlord
the sum of $2,000 as a signing bonus in lieu of a security deposit.
28. By taking possession of the Premises, Tenant accepts the
Premises in the condition existing as of the Commencement pate. Landlord makes no
representation or warranty with respect to the condition of the Premises and Landlord shall
not be liable for any latent or patent defect in the Premises.
29. EMp tpCtiAcahnTenantshall, at any time and from time to time upon not less
than tent 00) days prior rpt by Landlord, deliver to Landlord a statement in writing
certifying that (a) the Lease Is unmodified and in full force (o if there have been
modifications, that the Lease is In full force as modified and identifying the modifications);
b) the dates to which rent and other dtarges have been paid, (c) far as the person making
the certificate knows, Landlord is not to default under any provisions of the Lease, and (d)
such other matters as Landlord may reasonably request.
30. Nadm All notices, requests, demands, and other communications hereunder shall
be in writing and shall be deemed given if personally delivered or malted, certified mail,
return receipt requested, to the following addresses:
J7774011
01 407.7.
PP
n 'nen
t:
lim Y,. 41 ys t. .
1 - 17 r"'ll
U u,.. A11 -4 .•._
FM
Mf IM IIJ
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80 ef-a2 April 2, 2019 4tem n
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31. AaWmAM
a. Tenant may assign this Lease and all or arty rights, benefits, liabilities and
obligations hereunder, to (1) any person or entity which is a parent, subsidiary or
affiliate of Tenant, (ii) any person or business entity that controls or is controlled by
or under Common control with Tenant, or (iii) any person or business entity that Is
merged or consolidated with Tenant or purchases a majority or controlling interest
in the ownership or assets of Tenant Upon notification to Landlord by Tenant of
any such assignment, Tenant will be relieved of all future peri omrance, liabilities
and obligations under this Lease -to the exumt of such assignment. Tenant may not
otherwise assign or sublet this Lease without Landlord's consent.
b. Nothing in this Lease shall preclude Landlord from leasing *other space for
communieatim equipment to any person or entity which may be in competition
with Tenant, or any other party.
32. SUOMKM and Awkm This Lease shall be binding upon and inure to the benefit
of the parties, their respective successors, personal representatives and assigns.
a. Landlord and Tenant represent that each, respectively, has full right, power,
and authority to execute this Lease.
b. This Lease constitutes the entire agreement and uncle atanding of the parties
and supersedes all offers, negotiations, and other agreements of any kind. There are
no representations or understandings of any kind not set forth herein. Any
modffications of or amendment to this Lease must be in writing and executed by
both parties.
C. This Lease shall be construed In accordance with the laws of the State of
California.
d. If any term of this Lease is found to be void or invalid, such invalidity shall
not effect the remaining terns of this Lease, which shall continue in full force and
effect
16
April 2, 2019 Item #-L-L
0 0
e. Landlord represents and warrants that (1) it solely owns the Owned Premises
as a lot In fee simple, unencumbered by any lieu, restrictions, mortgages,
covenants, conditions, easements, loam, age, of record or not of record,
which would adversely affect Tenant's use and enjoyment of the Prenises under
this Lease, and (ii) as I as Tenant Is not default, Landlord grants to Tenant sole,
tqur
a ul use, enjoyment and possession of the Premises
This was ex as of the date first set forth above.
LANDLORD
City of POVJMY
Bri
Lo Anne Peoples, CityLoAnnePeoples, lerk
17
11;MT&I
AT&T Wireless 1P, LLC
A'rjr wsav m w4' its M.w
4 L. t7l
Title: PA"MM MA4405K
April 2, 2019 Item # '
r
FD City of Poway
COUNCIL AGENDA REPORT
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Donna Goldsmith, Director of Finance
CONTACT: Brad Rosen, Information Technology Manager
858) 668-4452 or brosenCccilPoway. org ,dam
APPROVED
APPROVED AS AMENDED
SEEMINUTES)
DENIED
REMOVED
CONTINUED
RESOLUTION NO.
SUBJECT: Approval of Agreement between the City of Poway and Crayon
Software Experts LLC for the Purchase of a Microsoft Enterprise
Agreement
Summary:
It is the City's practice to purchase a Microsoft Enterprise Agreement (EA) to cover Microsoft
software licensing for all desktops, servers, applications and databases. In addition to providing
Microsoft Software Assurance, which includes all upgrades distributed by Microsoft, the EA
consolidates the City's software purchases at a reduced cost while streamlining the software
license management and accounting process.
The City's current three-year EA was entered into with PCM -G in 2016. The EA expires on April
30, 2019, and staff intends to purchase a new EA to provide the City with the most cost-effective
method for maintaining our current technology environment. Following a request -for -quotes
process, the City identified Crayon Software Experts LLC as the lowest quote. A new three-year
EA has been negotiated with Crayon Software Experts LLC, which is provided for the City
Council's consideration.
Recommended Action:
It is recommended that the City Council authorize the City Manager to execute an agreement with
Crayon Software Experts LLC for a three-year Microsoft EA.
Discussion:
As part of its technology procurement practices, the City's Information Technology (IT) Division
typically upgrades and deploys core software on a timescale that keeps software versions at, or
near, current commercial release versions. This practice is necessary to ensure core City software
is current with product feature and security -related improvements.
In 2016, the County of Riverside performed a competitive Request for Proposal (RFP) process
and awarded a contract for Microsoft licenses purchased through certain software vendors.
Under the terms of the RFP and resulting contract, the same pricing is offered to other government
agencies in the State of California under cooperative purchase agreements, through December
31, 2019. An analysis performed by the County of Riverside indicated the pricing offered under
their contract is the most competitive EA available to local government agencies. Approximately
380 government agencies have benefited from the pricing offered under the County of Riverside
contract, including the State of California.
1 of 21 April 2, 2019, Item #1.7
Approval of Agreement for Enterprise Agreement
April 2, 2019
Page 2
In 2007, the City entered into its first three-year EA with DELL, Inc., utilizing the prior County of
Riverside contract established in 2003 and renewed that agreement for three additional years in
2010. In 2013, the City entered into its second three-year agreement with Insight Direct USA, Inc.
and in 2016 entered into its current three-year agreement with PCM -G that expires on April 30,
2019.
The Finance Department recently sent out a request for quotes to the six software vendors
authorized to bid under the County of Riverside contract issued in 2016. Four vendors responded
to our request. Based upon a review of the quotes, the vendor response from Crayon Software
Experts LLC represented the lowest cost for a three-year EA that provides the City with all
required Microsoft licensing to support our desktops, servers, applications and databases.
The Crayon Software Experts LLC quote is attached to this report (Attachment A). At the end of
each contract year of the three-year agreement, the City must report to Microsoft any products
that need to be added to the EA. Microsoft identifies these license additions as true -up fees. Any
additional Microsoft licenses required by the City would be added under this EA at the prices
identified in this quote.
Based on the proposed monthly licensing model, the proposed three-year agreement with Crayon
Software Experts LLC (Attachment B) includes an annual cost of $90,619.48. Additional true -up
yearly costs would be determined at the end of each contract year based on any additional
licensing required due to the addition of staff or software applications requiring Microsoft licensing.
The total cost of the three-year agreement is $271,858.44.
Environmental Review:
This item is not subject to CEQA Review.
Fiscal Impact:
The total cost of the three-year contract is $271,858.44. The adopted FY 2018-19 Budget includes
239,766 ( 115010-61222) for this purpose and an additional amount of $36,200 was approved at
midyear for a total available budget of $275, 966. This agreement provides licensing through April
2022 and a new EA agreement will be necessary in FY 2022-23.
Public Notification:
None
Attachments:
A. Quote: Crayon Software Experts LLC
B. Microsoft Enterprise Agreement
2 of 21 April 2, 2019, Item #1.7
Approval of Agreement for Enterprise Agreement
April 2, 2019
Page 3
Reviewed/Approved By: Reviewed By: Approved By:
Wendy Kaserman Alan Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
3 of 21 April 2, 2019, Item #1.7
ij
a
The Software Expert
Crayon
Quote Date: 3.15.19 Customer
City of Poway
Attn: Brad Rosen
Quoted by:
Crayon Software Experts LLC
12221 Merit Drive, Suite 800
Dallas, TX 75251
Greg Landry
Phone: 469-329-0290
greg.landryPcravon.com
Part Number Description Qty Annual Net Unit Price Extended Amount
Pricing and Usage Year 1
Enterprise Products
AAA -12428 ECALBri geO365 ALNG SubsVL MVL P t rm PerUsr 42 35.79 1,503.18
AAA -12436 ECALBri geO365FromSA ALNG SubsVL MVL P t rm PerUsr 294 31.17 9,163.98
AAA -11894 O365GCCE3 5 r Svr ALNG SubsVL MVL PerUsr 56 189.78 10,627.68
AAA -11924 0365GCCE3 romSA 5 r Svr ALNG SubsVL MVL PerUsr 280 163.89 45,889.20
KV3-00353 WINENTperDVC ALNG SA MVL P t rm 303 38.04 11,526.12
Additional Products
P3U-00001 VisioOn772777r Svr ALNG SubsVL MVL PerUsr 3 123.00 369.00
9EM-00270 WlnSvrSTDCore ALNG SA MVL 21-ic CoreLic 72 18.20 37- 1,310.40
9EA-00278 WInSvrDCCore ALNG SA MVL 21-ic CoreLic 48 113.56 5,450.88
7NQ-00292 SQLSvrStdCore ALNG SA MVL 2Lic CoreLic 8 528.89 4,231.12
7MS-00001 ProjOnln ProfGCC ShrdSvr ALNG SubsVL MVL PerUsr 1 249.12 249.12
MQM-00001 AzureActiveDrctryPremP1GCC ShrdSvr ALNG SubsVL MVL PerUsr 6 49.80 298.80
Year. 1Total 90,619.48
Part Number Description Qty Annual: Net Unit Price Extended Amount
Pricing and Usage Year 2
Enterprise Products
AAA -12428 ECALBn7geO365 ALNG SubsVL MVL PItfrrn PerUsr 42 35.79 1,503.18
AAA -12436 ECALBri geO365FromSA ALNG SubsVL MVL PItfrm PerUsr 294 31.17 9,163.98
AAA -11894 O365GCCE3ShrdSvr ALNG SubsVL MVL PerUsr 56 189.78 10,627.68
AAA -11924 0365GCCE3 romSA ShrdSvr ALNG SubsVL MVL PerUsr 280 163.89 45,889.20
KV3-00353 WINENTperDVC ALNG SA MVL Pt rm 303 38.04 11,526.12
Additional Products
P3U-00001 VisioOn nP2GCC ShrdSvr ALNG SubsVL MVL PerUsr 3 123.00 369.00
9EM-00270 WinSvrSTDCore ALNG SA MVL 2Lic CoreLic 72 18.20 1,310.40
g
iim
N
N01
CD
B
1t
9EA-00278 WinSvrDCCore ALNG SA MVL Ric CoreLic 48 113.56 5,450.88
7NQ-00292 SQLSvrStcICore ALNG SA MVL 2Lic CoreLic 8 528.89 4,231.12
7MS-00001 ProjCminProfGCC ShrdSvr ALNG SubsVL MVL PerUsr 1 249.12 249.12
MQM-00001 AzureActiveDrctryPremP1GCC ShrdSvr ALNG SubsVL MVL PerUsr 6 49.80 298.80
Year 2Total 90,
Part Number Description Qty Annual Net Unit Price Extended Amount
Pricing and Usage Year 3
Enterprise Products
AAA -12428 ECALBri geO365 ALNG SubsVL MVL P t rm PerUsr 42 35.79 1,503.18
AAA -12436 ECALBri geO365FromSAALNG SubsVL MVL PItfrm PerUsr 294 31.17 9,163.98
AAA -11894 O365GCCE3 S r Svr ALNG SubsVL MVL PerUsr 56 189.78 10,627.68
AAA -11924 0365GCCE3 romSA ShrcISvr ALNG SubsVL MVL PerUsr 280 163.89 45,889.20
7V3-00353 WINENTperDVC ALNG SA MVL Pt rm 303 38.04 11,526.12
Additional Products
P3U-00001 Visio0n nP2GCC S r Svr ALNG SubsVL MVL PerUsr 3 123.00 369.00
9EM-00270 WinSvrSTDCore ALNG SA MVL 2Lic CoreLic 72 18.20 1,310.40
9EA-00278 WinSvrDCCore ALNG SA MVL 2Lic CoreLic 48 113.56 5,450.88
7NQ-00292 SQLSvrStdCore ALNG SA MVL Ric CoreLic 8 528.89 4,231.12
7MS-00001 ProjOnlnProfGCC ShrcISvr ALNG SubsVL MVL PerUsr 1 249.12 249.12
MQM-00001 AzureActiveDrctryPremPiGCC ShrcISvr ALNG SubsVL MVL PerUsr 6 49. 80 298.80
Year 3 Total 90,619.48
Total Deal Value Years 1- 3 $ 273,858.44
Pricing Expires in 30 days from date of quote**
All items included in this RFQ are new, unused, not refurbished, with original manufacturer warranty.**
Remit to Address:
Crayon Software Experts, LLC
Attn: Finance Manager
8111 LBJ Freeway, Suite 1000
Dallas, TX 75251
Phone: 469-329-0290
i nvoice. cus(&cravo n.co m
I Microsoft
Program Signature Form
MBA/MBSA number
Agreement number 01E73970
Volume Licensing
Note: Enter the applicable active numbers associated with the documents below. Microsoft
requires the associated active number be indicated here, or listed below as new.
For the purposes of this form, "Customer" can mean the signing entity, Enrolled Affiliate,
Government Partner, Institution, or other party entering into a volume licensing program
agreement.
This signature form and all contract documents identified in the table below are entered into between
the Customer and the Microsoft Affiliate sicnino. as of the effective date identified below.
Enrollment
By signing below, Customer and the Microsoft Affiliate agree that both parties (1) have received, read
and understand the above contract documents, including any websites or documents incorporated by
reference and any amendments and (2) agree to be bound by the terms of all such documents.
Name of Entity (must be legal entity name)* City of Poway
Signature*
Printed First and Last Name*
Printed Title
Signature Date*
Tax ID
Microsoft Corporation
Signature
Printed First and Last Name
Printed Title
Signature Date
date Microsoft Affiliate countersigns)
Agreement Effective Date
may be different than Microsoft's signature date)
6p6, f2fSignForm(MSSign)(NA,LatAm)Exl3RA,MLL(FI At GMAT B April 2, 2019, Item #1.7
Optional 2n4 Customer signature or Outsourcer signature (if applicable)
Name of Entity (must be legal entity name)*
Signature*
Printed First and Last Name*
Printed Title
Signature Date*
Name of Entity (must be legal entity name)*
Signature*
Printed First and Last Name*
Printed Title
Signature Date*
If Customer requires physical media, additional contacts, or is reporting multiple previous Enrollments,
include the appropriate form(s) with this signature form.
After this signature form is signed by the Customer, send it and the Contract Documents to
Customer's channel partner or Microsoft account manager, who must submit them to the following
address. When the signature form is fully executed by Microsoft, Customer will receive a confirmation
copy.
Microsoft Corporation
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 59511- 1137
USA
7P6cV2TSignFon(MSSign)(NA, LatAm)ExBRA,MLI (ENG)(Aug2014)
April 2, 2019, Item #1.7
Microsoft
Enterprise Enrollment
Enterprise Enrollment number $0743000Microsofttocomplete)
Previous Enrollment number 61471137Resellertocomplete)
Volume Licensing
State and Local
Framework ID
if applicable)
This Enrollment must be attached to a signature form to be valid.
This Microsoft Enterprise Enrollment is entered into between the entities as identified in the signature form
as of the effective date. Enrolled Affiliate represents and warrants it is the same Customer, or an Affiliate of
the Customer, that entered into the Enterprise Agreement identified on the program signature form.
This Enrollment consists of: (1) these terms and conditions, (2) the terms of the Enterprise Agreement
identified on the signature form, (3) the Product Selection Form, (4) the Product Terms, (6) the Online
Services Terms, (6) any Supplemental Contact Information Form, Previous Agreement/Enrollment form,
and other forms that may be required, and (7) any order submitted under this Enrollment. This Enrollment
may only be entered into under a 2011 or later Enterprise Agreement. By entering into this Enrollment,
Enrolled Affiliate agrees to be bound by the terms and conditions of the Enterprise Agreement.
All terms used but not defined are located at htto:/Avww.microsoft.com/licensing/contracts. In the event of
any conflict the terms of this Agreement control.
Effective date. If Enrolled Affiliate is renewing Software Assurance or Subscription Licenses from one or
more previous Enrollments or agreements, then the effective date will be the day after the first prior
Enrollment or agreement expires or terminates. If this Enrollment is renewed, the effective date of the
renewal term will be the day after the Expiration Date of the initial term. Otherwise, the effective date will
be the date this Enrollment is accepted by Microsoft. Any reference to "anniversary date" refers to the
anniversary of the effective date of the applicable initial or renewal term for each year this Enrollment is in
effect.
Term. The initial term of this Enrollment will expire on the last day of the month, 36 full calendar months
from the effective date of the initial term. The renewal term will expire 36 full calendar months after the
effective date of the renewal term.
Terms and Conditions
1. Definitions.
Terms used but not defined in this Enrollment will have the definition in the Enterprise Agreement. The
following definitions are used in this Enrollment:
Additional Product" means any Product identified as such in the Product Terms and chosen by Enrolled
Affiliate under this Enrollment.
Community" means the community consisting of one or more of the following: (1) a Government, (2) an
Enrolled Affiliate using eligible Government Community Cloud Services to provide solutions to a
Government or a qualified member of the Community, or (3) a Customerwith Customer Data that is subject
to Government regulations for which Customer determines and Microsoft agrees that the use of
Government Community Cloud Services is appropriate to meet Customer's regulatory requirements.
EA2016EnrGov(US)SLG(ENG)(Nov2016)
8 of 21 April 2, 2019, Item #1.7
Membership in the Community is ultimately at Microsoft's discretion, which may vary by Government
Community Cloud Service.
Enterprise Online Service" means any Online Service designated as an Enterprise Online Service in the
Product Terms and chosen by Enrolled Affiliate under this Enrollment. Enterprise Online Services are
treated as Online Services, except as noted.
Enterprise Product" means any Desktop Platform Product that Microsoft designates as an Enterprise
Product in the Product Terms and chosen by Enrolled Affiliate under this Enrollment. Enterprise Products
must be licensed for all Qualified Devices and Qualified Users on an Enterprise -wide basis under this
program.
Expiration Date" means the date upon which the Enrollment expires.
Federal Agency" means a bureau, office, agency, department or other entity of the United States
Government.
Government" means a Federal Agency, State/Local Entity, or Tribal Entity acting in its governmental
capacity.
Government Community Cloud Services" means Microsoft Online Services that are provisioned in
Microsoft's multi -tenant data centers for exclusive use by or for the Community and offered in accordance
with the National Institute of Standards and Technology (NIST)Special Publication 800-145. Microsoft
Online Services that are Government Community Cloud Services are designated as such in the Use Rights
and Product Terms.
Industry Device" (also known as line of business device) means any device that: (1) is not useable in its
deployed configuration as a general purpose personal computing device (such as a personal computer), a
multi -function server, or a commercially viable substitute for one of these systems; and (2) only employs an
industry or task -specific software program (e.g. a comQuter-aided design program used by an architect or
a point of sale program) ("Industry Program"). The device may include features and functions derived from
Microsoft software or third -party software. If the device performs desktop functions (such as email, word
processing, spreadsheets, database, network or Internet browsing, or scheduling, or personal finance),
then the desktop functions: (1) may only be used for the purpose of supporting the Industry Program
functionality; and (2) must be technically integratedwith the Industry Program or employ technically
enforced policies or architecture to operate only when used with the Industry Program functionality.
Managed Device" means any device on which any Affiliate in the Enterprise directly or indirectly controls
one or more operating system environments. Examples of Managed Devices can be found in the Product
Terms.
Qualified Device" means any device that is used by or for the benefit of Enrolled Affiliate's Enterprise and
is: (1) a personal desktop computer, portable computer, workstation, or similar device capable of running
Windows Pro locally (in a physical or virtual operating system environment), or (2) a device used to access
a virtual desktop infrastructure ("VDI"). Qualified Devices do not include any device that is: (1) designated
as a server and not used as a personal computer, (2) an Industry Device, or (3) not a Managed Device. At
its option, the Enrolled Affiliate may designate any device excluded above (e.g., Industry Device) that is
used by or for the benefit of the Enrolled Affiliate's Enterprise as a Qualified Device for all or a subset of
Enterprise Products or Online Services the Enrolled Affiliate has selected.
Qualified User" means a person (e.g., employee, consultant, contingent staff) who: (1) is a user of a
Qualified Device, or (2) accesses any server software requiring an Enterprise Product Client Access
License or any Enterprise Online Service. It does not include a person who accesses server software or
an Online Service solely under a License identified in the Qualified User exemptions in the Product Terms.
Reseller" means an entity authorized by Microsoft to resell Licenses under this program and engaged by
an Enrolled Affiliate to provide pre- and post -transaction assistance related to this agreement;
Reserved License" means for an Online Service identified as eligible for true -ups in the Product Terms,
the License reserved by Enrolled Affiliate prior to use and for which Microsoft will make the Online Service
available for activation.
EA2016EnrGov(U S) S LG (E N G)(Nov2016)
9 of 21 April 2, 2019, Item #1.7
State/Local Entity" means (1) any agency of a state or local government in the United States, or (2) any
United States county, borough, commonwealth, city, municipality, town, township, special purpose district,
or other similar type of governmental instrumentality established by the laws of Customer's state and
located within Customer's state's jurisdiction and geographic boundaries.
Tribal Entity" means a federally -recognized tribal entity performing tribal governmental functions and
eligible for funding and services from the U.S. Department of Interior by virtue of its status as an Indian
tribe.
Use Rights" means, with respect to any licensing program, the use rights or terms of service for each
Product and version published for that licensing program at the Volume Licensing Site. The Use Rights
supersede the terms of any end user license agreement (on-screen or otherwise) that accompanies a
Product. The Use Rights for Software are published by Microsoft in the Product Terms. The Use Rights for
Online Services are published in the Online Services Terms.
Volume Licensing Site" means http://www.microsoft.com/licensing/contracts or a successor site.
2. Order requirements.
a. Minimum order requirements. Enrolled Affiliate's Enterprise must have a minimum of 250
Qualified Users or Qualified Devices. The initial order must include at least 250 Licenses for
Enterprise Products or Enterprise Online Services.
i) Enterprise commitment. Enrolled Affiliate must order enough Licenses to cover all
Qualified Users or Qualified Devices, depending on the License Type, with one or more
Enterprise Products or a mix of Enterprise Products and the corresponding Enterprise
Online Services (as long as all Qualified Devices not covered by a License are only used
by users covered with a user License).
ii) Enterprise Online Services only. If no Enterprise Product is ordered, then Enrolled
Affiliate need only maintain at least 250 Subscription Licenses for Enterprise Online
Services.
b. Additional Products. Upon satisfying the minimum order requirements above, Enrolled
Affiliate may order Additional Products.
c. Use Rights. for Enterprise Products.. For Enterprise Products, if a new Product version has
more restrictive use rights than the version that is current at the start of the applicable initial or
renewal term of the Enrollment, those more restrictive use rights will not apply to Enrolled
Affiliate's use of that Product during that term.
d. Country, of usage. Enrolled Affiliate must specify the countries where Licenses will be used
on its initial order and on any additional orders.
e. Resellers. Enrolled Affiliate must choose and maintain a Reseller authorized in the United
States. Enrolled Affiliate will acquire its Licenses through its chosen Reseller. Orders must be
submitted to the Reseller who will transmit the order to Microsoft. The Reseller and Enrolled
Affiliate determine pricing and payment terms as between them, and Microsoft will invoice the
Reseller based on those terms. Throughout this Agreement the term "price" refers to reference
price. Resellers and other third parties do not have authority to bind or impose any obligation
or liability on Microsoft.
f. Adding Products.
i) Adding new Products not previously ordered. New Enterprise Products or Enterprise
Online Services may be added at any time by contacting a Microsoft Account Manager or
Reseller. New Additional Products, other than Online Services, may be used if an order is
placed in the month the Product is first used. For Additional Products that are Online
Services, an initial order for the Online Service is required prior to use.
EA2016EnrGov(US) SLG(E NG) (Nov2016)
10 of 21 April 2, 2019, Item #1.7
ii) Adding Licenses for previously ordered Products. Additional Licenses for previously
ordered Products other than Online Services may be added at any time but must be
included in the next true -up order. Additional Licenses for Online Services must be ordered
prior to use, unless the Online Services are (1) identified as eligible for true -up in the
Product Terms or (2) included as part of other Licenses.
g. True -up requirements. Enrolled Affiliate must submit an annual true -up order that accounts
for any changes since the initial order or last order. If there are no changes, then an update
statement must be submitted instead of a true -up order.
i) Enterprise Products. For Enterprise Products, Enrolled Affiliate must determine the
number of Qualified Devices and Qualified Users (if ordering user -based Licenses) at the
time the true -up order is placed and must order additional Licenses for all Qualified Devices
and Qualified Users that are not already covered by existing Licenses, including any
Enterprise Online Services.
ii) Additional Products. For Additional Products that have been previously ordered under
this Enrollment, Enrolled Affiliate must determine the maximumnumberof Additional
Products used since the latter of the initial order, the last true -up order, or the prior
anniversary date and submit a true -up order that accounts for any increase.
iii) Online Services. For Online Services identified as eligible for true -up in the Product
Terms, Enrolled Affiliate may place a reservation order for the additional Licenses prior to
use and payment may be deferred until the next true -up order. Microsoft will provide a
report of Reserved Licenses ordered but not yet invoiced to Enrolled Affiliate and its
Reseller. Reserved Licenses will be invoiced retroactively to the month in which they were
ordered.
iv) Subscription License reductions. Enrolled Affiliate may reduce the quantity of
Subscription Licenses at the Enrollment anniversary date on a prospective basis if
permitted in the Product Terms, as follows:
1) For Subscription Licenses that are part of an Enterprise -wide purchase, Licenses may
be reduced if the total quantity of Licenses and Software Assurance for an applicable
group meets or exceeds the quantity of Qualified Devices and Qualified Users (if
ordering user -based Licenses) identified on the Product Selection Form, and includes
any additional Qualified Devices and Qualified Users added in any prior true -up orders.
Step-up Licenses do not count towards this total count.
2) For Enterprise Online Services that are not a part of an Enterprise -wide purchase,
Licenses can be reduced as long as the initial order minimum requirements are
maintained.
3) For Additional Products available as Subscription Licenses, Enrolled Affiliate may
reduce the Licenses. If the License count is reduced to zero, then Enrolled Affiliate's
use of the applicable Subscription License will be cancelled.
Invoices will be adjusted to reflect any reductions in Subscription Licenses at the true -up
order Enrollment anniversary date and effective as of such date.
v) Update statement. An update statement must be submitted instead of a true -up order if,
since the initial order or last true -up order, Enrolled Affiliate's Enterprise: (1) has not
changed the number of Qualified Devices and Qualified Users licensed with Enterprise
Products or Enterprise Online Services; and (2) has not increased its usage of Additional
Products. This update statement must be signed by Enrolled Affiliate's authorized
representative.
vi) True -up order period. The true -up order or update statement must be received by
Microsoft between 60 and 30 days prior to each Enrollment anniversary date. The third -
year true -up order or update statement is due within 30 days prior to the Expiration Date,
and any license reservations within this 30 day period will not be accepted. Enrolled Affiliate
EA2016EnrGov(US)SLG(ENG)(Nov2016)
11 of 21 April 2, 2019, Item #1.7
may submit true -up orders more often to account for increases in Product usage, but an
annual true -up order or update statement must still be submitted during the annual order
period.
vii)Late true -up order. If the true -up order or update statement is not received when due,
Microsoft will invoice Reseller for all Reserved Licenses not previously invoiced and
Subscription License reductions cannot be reported until the following Enrollment
anniversary date (or at Enrollment renewal, as applicable).
h. Step-up Licenses. For Licenses eligible for a step-up under this Enrollment, Enrolled Affiliate
may step-up to a higher edition or suite as follows:
i) For step-up Licenses included on an initial order, Enrolled Affiliate may order according to
the true -up process.
ii) If step-up Licenses are not included on an initial order, Enrolled Affiliate may step-up
initially by following the process described in the Section titled "Adding new Products not
previously ordered," then for additional step-up Licenses, by following the true -up order
process.
i. Clerical errors. Microsoft may correct clerical errors in this Enrollment, and any documents
submitted with or under this Enrollment, by providing notice by email and a reasonable
opportunity for Enrolled Affiliate to object to the correction. Clerical errors include minor
mistakes, unintentional additions and omissions. This provision does not apply to material
terms, such as the identity, quantity or price of a Product ordered.
j. Verifying compliance. Microsoft may, in its discretion and at its expense, verify compliance
with this Enrollment as set forth in the Enterprise Agreement.
3. Pricing.
a. Price Levels. For both the initial and any renewal term Enrolled Affiliate's Price Level for all
Products ordered under this Enrollment will be Level "D" throughout the term of the Enrollment.
b. Setting Prices. Enrolled Affiliate's prices for each Product or Service will be established by its
Reseller. Except for Online Services designated in the Product Terms as being exempt from
fixed pricing, As long, as Enrolled Affiliate continues to qualify for the same price level,
Microsoft's prices for Resellers for each Product or Service ordered will be fixed throughout the
applicable initial or renewal Enrollment term. Microsoft's prices to Resellers are reestablished
at the beginning of the renewal term.
4. Payment terms.
For the initial or renewal order, Enrolled Affiliate may pay upfront or elect to spread its payments over the
applicable Enrollment term. If an upfront payment is elected, Microsoft will invoice Enrolled Affiliate's
Reseller in full upon acceptance of this Enrollment. If spread payments are elected, unless indicated
otherwise, Microsoft will invoice Enrolled Affiliate's Reseller in three equal annual installments. The first
installment will be invoiced upon Microsoft's acceptance of this Enrollment and remaining installments will
be invoiced on each subsequent Enrollment anniversary date. Subsequent orders are invoiced upon
acceptance of the order and Enrolled Affiliate may elect to pay annually or upfront for Online Services and
upfront for all other Licenses.
5. End of Enrollment term and termination.
a. General. At the Expiration Date, Enrolled Affiliate must immediately order and pay for Licenses
for Products it has used but has not previously submitted an order, except as otherwise
provided in this Enrollment.
EA2016EnrGov(US)S LG(E NG) (Nov20l 6)
12 of 21 April 2, 2019, Item #1.7
b. Renewal option. At the Expiration Date of the initial term, Enrolled Affiliate can renew
Products by renewing this Enrollment for one additional 36 -month term or by signing a new
Enrollment. Microsoft must receive a Renewal Form, Product Selection Form, and renewal
order prior to or at the Expiration Date. Microsoft will not unreasonably reject any renewal.
Microsoft may make changes to this program that will make it necessary for Customer and its
Enrolled Affiliates to enter into new agreements and Enrollments at renewal.
c. If Enrolled Affiliate elects not to renew.
i) Software Assurance. If Enrolled Affiliate elects not to renew Software Assurance for any
Product under its Enrollment, then Enrolled Affiliate will not be permitted to order Software
Assurance later without first acquiring a new License with Software Assurance.
ii) Online Services eligible for an Extended Term. For Online Services identified as eligible
for an Extended Term in the Product Terms, the following options are available at the end
of the Enrollment initial or renewal term.
11 Extended Term. Licenses for Online Services will automatically expire in accordance
with the terms of the Enrollment. An extended term feature that allows Online Services
to continue month-to-month ("Extended Tenn") for up to one year, unless designated
in the Product Terms to continue until cancelled, is available. During the Extended
Term, Online Services will be invoiced monthly at the then -current published price as
of the Expiration Date plus a 3% administrative fee. If Enrolled Affiliate wants an
Extended Term, Enrolled Affiliate must submit a request to Microsoft at least 30 days
prior to the Expiration Date.
2) Cancellation during Extended Term. At any time during the first year of the
Extended Term, Enrolled Affiliate may terminate the Extended Term by submitting a
notice of cancellation to Microsoft for each Online Service. Thereafter, either party
may terminate the Extended Term by providing the other with a notice of cancellation
for each Online Service. Cancellation will be effective at the end of the month following
30 days after Microsoft has received or issued the notice.
iii) Subscription Licenses and Online Services not eligible for an Extended Term. If
Enrolled Affiliate elects not to renew, the Licenses will be cancelled and will terminate as
of the Expiration Date. Any associated media must be uninstalled and destroyed and
Enrolled Affiliate's Enterprise must discontinue use. Microsoft may request written
certification to verify compliance.
d. Termination for cause. Any termination for cause of this Enrollment will be subject to the
Termination for cause" section of the Agreement. In addition, it shall be a breach of this
Enrollment if Enrolled Affiliate or any Affiliate in the Enterprise that uses Government
Community Cloud Services fails to meet and maintain the conditions of membership in the
definition of Community.
e. Early termination. Any early termination of this Enrollment will be subject to the "Early
Termination' Section of the Enterprise Agreement.
For Subscription Licenses, in the event of a breach by Microsoft, or if Microsoft terminates an
Online Service for regulatory reasons, Microsoft will issue Reseller a credit for any amount paid
in advance for the period after termination.
6. Government Community Cloud.
a. Community requirements. If Enrolled Affiliate purchases Government Community Cloud
Services, Enrolled Affiliate certifies that it is a member of the Community and agrees to use
Government Community Cloud Services solely in its capacity as a member of the Community
and, for eligible Government Community Cloud Services, for the benefit of end users that are
members of the Community. Use of Government Community Cloud Services by an entity that
is not a member of the Community or to provide services to non -Community members is strictly
EA2016EnrGov(US)SLG(E NG)(Nov2016)
13 of 21 April 2, 2019, Item #1.7
prohibited and could result in termination of Enrolled Affiliate's license(s) for Government
Community Cloud Services without notice. Enrolled Affiliate acknowledges that only
Community members may use Government Community Cloud Services.
b. All terms and conditions applicable to non -Government Community Cloud Services also apply
to their corresponding Government Community Cloud Services, except as otherwise noted in
the Use Rights, Product Terms, and this Enrollment.
c. Enrolled Affiliate may not deploy or use Government Community Cloud Services and
corresponding non -Government Community Cloud Services in the same domain.
d. Use Rights for Government Community Cloud Services. For Government Community
Cloud Services, notwithstanding anything to the contrary in the Use Rights:
i) Government Community Cloud Services will be offered only within the United States.
ii) Additional European Terms, as set forth in the Use Rights, will not apply.
iii) References to geographic areas in the Use Rights with respect to the location of Customer
Data at rest, as set forth in the Use Rights, refer only to the United States.
EA2016 EnrG ov(US)SLG(E NG) (Nov2016)
14 of 21 April 2, 2019, Item #1.7
Enrollment Details
Enrolled Affiliate's Enterprise.
a. Identify which Agency Affiliates are included in the Enterprise. (Required) Enrolled Affiliate's
Enterprise must consist of entire offices, bureaus, agencies, departments or other entities of
Enrolled Affiliate, not partial offices, bureaus, agencies, or departments, or other partial entities.
Check only one box in this section. If no boxes are checked, Microsoft will deem the Enterprise
to include the Enrolled Affiliate only. If more than one box is checked, Microsoft will deem the
Enterprise to include the largest number of Affiliates:
Enrolled Affiliate only
Enrolled Affiliate and all Affiliates
Enrolled Affiliate and the following Affiliate(s) (Only identify specific affiliates to be included
if fewer than all Affiliates are to be included in the Enterprise):
Enrolled Affiliate and all Affiliates, with following Affiliate(s) excluded:
b. Please indicate whether the Enrolled Affiliate's Enterprise will include all new Affiliates acquired
after the start of this Enrollment: Exclude future Affiliates
2. Contact information.
Each party will notify the other in writing if any of the information in the following contact information page(s)
changes. The asterisks(*) indicate required fields. By providing contact information, Enrolled Affiliate
consents to its use for purposes of administering this Enrollment by Microsoft, its Affiliates, and other parties
that help administer this Enrollment. The personal information provided in connection with this Enrollment
will be used and protected in accordance with the privacy statement available at
https://www.microsoft.com/licensin,q/servicecenter.
a. Primary contact. This contact is the primary contact for the Enrollment from within Enrolled
Affiliate's Enterprise. This contact is also an Online Administrator for the Volume Licensing
Service Center and may grant online access to others. The primary contact will be the default
contact for all purposes unless separate contacts are identified for specific purposes
Name of entity (must be legal entity name)* City of Poway
Contact name* First Brad Last Rosen
Contact email address* brosen@poway.org
Street address* 13325 Civic Center Drive
City* Poway
State/Province* CA
Postal code* 92064 -5755 -
For U.S. addresses, please provide the zip + 4, e.g. xxxxx-xxxx)
Country* United States
Phone* 858-668-4452
Tax ID
indicates required fields
b. Notices contact and Online Administrator. This contact (1) receives the contractual notices,
2) is the Online Administrator for the Volume Licensing Service Center and may grant online
access to others, and (3) is authorized to order Reserved Licenses for eligible Online Servies,
including adding or reassigning Licenses and stepping -up prior to a true -up order.
EA2016EnrGov(US)SLG(ENG)(Nov2016)
15 of 21 April 2, 2019, Item #1.7
17 Same as primary contact (default if no information is provided below, even if the box is not
checked).
Contact name* First Brad Last Rosen
Contact email address* brosen@poway.org
Street address* 13325 Civic Center Drive
City* Poway
State/Province* CA
Postal code* 92064 -5755 -
For U.S. addresses, please provide the zip + 4, e.g. xxxxx-xxxx)
Country* United States
Phone* 858-668-4452
Language preference. Choose the language for notices. English
This contact is a third party (not the Enrolled Affiliate). Warning: This contact receives
personally identifiable information of the Customer and its Affiliates.
indicates required fields
c. Online Services Manager. This contact is authorized to manage the Online Services ordered
under the Enrollment and (for applicable Online Services) to add or reassign Licenses and
step-up prior to a true -up order.
Same as notices contact and Online Administrator (default if no information is provided
below, even if box is not checked)
Contact name*: First Dawn Last Winter
Contact email address* dwinter@poway.org
Phone* 858-668-4453
This contact is from a third party organization (not the entity). Warning: This contact receives
personally identifiable information of the entity.
indicates required fields
d. Reseller information. Reseller contact for this Enrollment is:
Reseller company name* Crayon Software Experts LLC
Street address (PO boxes will not be accepted)* 12221 Merit Drive Suite 800
City* Dallas
State/Province* TX
Postal code* 75251-1313
Country* United States
Contact name* Crayon US OPS TEAM
Phone* 469-329-0290
Contact email address* license. us@crayon.com
indicates required fields
By signing below, the Reseller identified above confirms that all information provided in this
Enrollment is correct.
Signature*
Printed name*
Printed title*
Date*
indicates required fields
Changing a Reseller. If Microsoft or the Reseller chooses to discontinue doing business with
each other, Enrolled Affiliate must choose a replacement Reseller. If Enrolled Affiliate or the
Reseller intends to terminate their relationship, the initiating party must notify Microsoft and the
EA2016 EnrGov(US)S LG(E NG) (Nov20l6)
16 of 21 April 2, 2019, Item #1.7
other party using a form provided by Microsoft at least 90 days prior to the date on which the
change is to take effect.
e. If Enrolled Affiliate requires a separate contact for any of the following, attach the Supplemental
Contact Information form. Otherwise, the notices contact and Online Administrator remains
the default.
i) Additional notices contact
ii) Software Assurance manager
iii) Subscriptions manager
iv) Customer Support Manager (CSM) contact
3. Financing elections.
Is a purchase under this Enrollment being financed through MS Financing? Yes, Z No.
If a purchase under this Enrollment is financed through MS Financing, and Enrolled Affiliate chooses not to
finance any associated taxes, it must pay these taxes directly to Microsoft.
EA2016EnrGov(US) SLG(ENG)(Nov2016)
17 of 21 April 2, 2019, Item #1.7
Microsoft Volume Licensing
Previous Enrollment(s)/Agreement(s) Form
Entity Name: City of Poway
Contract that this form is attached to: State Local Government
For the purposes of this form, "entity' can mean the signing entity, Customer, Enrolled Affiliate,
Government Partner, Institution, or other party entering into a volume licensing program agreement.
Please provide a description of the previous Enrollment(s), Agreement(s), Purchasing Account(s),
and/or Affiliate Registration(s) being renewed or consolidated into the new contract identified above.
a. Entity may select below any previous contract(s) from which to transfer MSDN subscribers
to this new contract. Entity shall ensure that each MSDN subscriber transferred is either
properly licensed under the new contract or is removed.
b. Entity may select below only one previous contract from which to transfer the Software
Assurance (SA) Benefit contact details, i.e., benefits contact (notthe SA manager) and the
program codes, to this new contract.
c. An Open License cannot be used to transfer either the SA Benefit details or MSDN
subscribers.
d. The date of the earliest expiring Enrollment/Agreement that contains SA or Online Services
will be the effective date of the new contract (or SA coverage period for Select Plus).
e. Please insert the number of the earliest expiring Enrollment/Agreement with SA or Online
Services in the appropriate fields of the new contract.
PrevEnrAgrForm(W W)(ENG)(Apr2016)
18 of 21 April 2, 2019, Item #1.7
Microsoft Volume Licensing
Enterprise and Enterprise Subscription Enrollment
Product Selection Form
EnrollmentNumber
Microsoft to complete forinif/al term.
Reseller or SoRware Advisor to
complete for renewe/ or with prior
qualifying EnrollmenUAgreement
Step 1. Enter all fields in the table below (Required).
Step 2. Select the Products and Quantities Enrolled Affiliate is ordering on its initial Enrollment
Order. Quantity may not include any Licenses which Enrolled Affiliate has selected for optional
future use, or to which it is stepping -up within Enrollment term.
Device
Quantity
Microsoft 365
Microsoft 365 E3 USL
Microsoft 365 ES Add-on
Microsoft 365 E5 USL
Microsoft 365 E5 Add-on
Office Professional Plus
Office Professional Plus
Office 365 ProPlus
Office 365 Plans
Office 365 Plan E1 USL
Office 365 Plan E3 USL 336
Office 365 Plan E5 USL
Office 365 Plan E1 Add-on
Office 365 Plan E3 Add-on
Office 365 Plan E5 Add-on
Office 365 Plan E3 without ProPlus Add-
on
Client Access License CAL
Choose Core CAL or Enterprise CAL: Enterprise CAL (ECAL) <Choose One>
Core CAL or Enter rise CAL
Bridge for Office 365 336
Bridge for Enterprise Mo ility Suite
Windows Desktop
Windows 10 Enterprise E3 and LTSB
Upgrade per Device
303
Windows 10 Enterprise E5 per Device SL
Windows 10 Enterprise E3 per User SL
Windows 10 Enterprise E3 per User Add-
on SL
EA-EASProdSelFo"(WVV)(E NG)(Sep20l7)
19 of 21 April 2, 2019, Item #1.7
Products
Quantity
Device
Windows 10 Enterprise E5 per User SL
otherwise indicated in associated contract documents, Price Level is set using D
Windows 10 Enterprise E5 per User Add-
on SL
Windows Enterprise
Additional Product Application Pool: Unless otherwise indicated in
Windows 10 Enterprise E5 per Device
Add-on SL
associated contract documents, Price Level is set using quantity from Group 1.
E3 and LTSB
Windows VDA
contract documents, Price Level is set using the highest quantity from Group 2
Windows VDA per User SL
or 3.
Microsoft Intim
Microsoft Intune USL
Enterprise Mobilli.+ Security
Enterprise Mobility + Security E3 USL
License + E3/ E5 USL + Win
Enterprise Mobility+ SecurityE3 Add-on
License+ Office Microsoft Intune +
Enterprise Mobility + Security E5 USL
ProPlus + Office 365 (Plans E1,
Enterprise Mobility + Security E5 Add-on
Windows VDA +
365 (Plans
Step 3. Establish the Enrolled Affiliate's price level. Unless otherwise indicated in the associated
contract documents, the price level for each Product offering/pool is set based upon the quantity
to price level mapping. DO NOT INCLUDE BRIDGE CALs OR ADD-ONs.
1 2 3 4
otherwise indicated in associated contract documents, Price Level is set using D
the hi hest ouantity from Groups 1 through 4.
Windows Enterprise
Additional Product Application Pool: Unless otherwise indicated in
D
associated contract documents, Price Level is set using quantity from Group 1.
E3 and LTSB
Additional Product Server Pool: Unless otherwise indicated in associated
contract documents, Price Level is set using the highest quantity from Group 2
Upgrade+ Windows
or 3.
Client Access Enterprise ES + Win
Office Professional Client Access License + E3/ E5 USL + Win
Plus + Office 365 License+ Office Microsoft Intune +
E3/E5 per Device +
ProPlus + Office 365 (Plans E1, Enterprise Mobility Windows VDA +
365 (Plans E3, and E5) + and Security USL Windows EnterpriseE3andE5) +
Microsoft 365 USL Microsoft 365
E3 per User SL +
Microsoft 365 USL Windows Enterprise
E5 per User SL +
Windows VDA per
User USL +
Microsoft 365 USL
336 336 336 303
ProductOffering I Pool Price Level
Enterprise Products and Enterprise Online Services USLs: Unless
otherwise indicated in associated contract documents, Price Level is set using D
the hi hest ouantity from Groups 1 through 4.
Additional Product Application Pool: Unless otherwise indicated in
D
associated contract documents, Price Level is set using quantity from Group 1.
Additional Product Server Pool: Unless otherwise indicated in associated
contract documents, Price Level is set using the highest quantity from Group 2 D
or 3.
Additional Product Systems Pool: Unless otherwise indicated in associated
D
contract documents, Price Level is set using quantity from Group 4.
EA-EASProdSelFo"(WW)(E NG)(Sep20l7)
20 of 21 April 2, 2019, Item #1.7
Quantity of Licenses and Software Assurance to Price Level Mapping:
Notes:
1. Enterprise Online Services may not be available in all locations. Please see the Product Terms
for a list of locations where these may be purchased.
2. If Enrolled Affiliate does not order an Enterprise Product or Enterprise Online Service associated
with an applicable Product pool, the price level for Additional Products in the same pool will be
price level "A" throughout the term of the Enrollment.
3. Unless otherwise indicated in the associated Agreement documents, the CAL selection must be
the same across the Enterprise for each Profile.
This form must be attached to a signature form to be valid.
EA-EASProdSelFon(WW)(ENG)(Sep20l7)
21 of 21 April 2, 2019, Item #1.7
G`.q OF POW'9y
C IN THE QJ
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
City of Poway
COUNCIL AGENDA REPORT
April 2, 2019
Honorable Mayor and Members of the City Council
Brenda Sylvia, Director of Community Services
Brenda Sylvia, Director of Community Serviceq:
bsylvia(a)poway.org or (858) 668-4585
APPROVED
APPROVED AS AMENDED
SEE MINUTES)
DENIED
REMOVED
CONTINUED
RESOLUTION NO.
City of Poway and Poway Unified School District (PUSD) Joint Use
Agreement for Cooperative Facilities Use and Maintenance
On June 12, 2007, the City entered into a Joint -Use Agreement for Cooperative Facilities Use
and Maintenance with the Poway Unified School District (PUSD). The facilities covered in the
agreement include gymnasiums, multi-purpose centers, as well as artificial turf sports fields. Since
that time, facility use, maintenance responsibilities, associated costs, and processes related to
the facilitation of agreement have changed. The City and PUSD have cooperatively renegotiated
a new agreement to reflect those changes.
Recommended Action:
It is recommended that the City Council authorize the City Manager to execute an updated Joint -
Use Agreement between the City of Poway and the Poway Unified School District for Cooperative
Facilities Use and Maintenance.
Discussion:
The City of Poway and PUSD have a long history of collaborating to expand recreational
opportunities for citizens and students. Over the years, the former Poway Redevelopment Agency
used funds to install indoor facilities, and grass and artificial turf fields on school campuses. These
improvements provide space for the many sports and recreation programs offered by the City of
Poway Community Services Department and the non-profit Poway Sports Association.
On June 12, 2007, the City and the Poway Redevelopment Agency entered into a Joint -Use
Agreement (JUA) with PUSD. The 2007 agreement replaced the individual site use/lease
agreements the agencies were operating under. After the dissolution of the Redevelopment
Agency in 2012, the City became the Successor Agency to the former Redevelopment Agency,
leaving just the City and PUSD as the parties to the Agreement.
The JUA sets forth the terms by which the City and PUSD share in the use, maintenance, and
operating costs of indoor facilities including gymnasiums at Meadowbrook and Twin Peaks Middle
Schools, as well as sports fields. As outlined later in the report, many of the facilities in the current
agreement have either not been used by the City or have not been available to the City and are
therefore being removed from the updated agreement. The JUA does not include joint use of the
Poway Center for the Performing Arts, which is covered under a separate agreement.
1 of 20 April 2, 2019 Item #_ a,
City of Poway/PUSD Facilities Use and Maintenance Joint Use Agreement
April 2, 2019
Page 2
The City and PUSD have been negotiating a revised JUA for approximately three years. Because
the existing JUA contained an option for up to three 5 -year extensions, the First Amendment to
extend the Agreement for five years to June 12, 2022, was executed. However, when the new
agreement is executed, it will supersede the existing JUA.
Use Changes
Several facilities and fields were included in the 2007 JUA to provide options for use, yet were
either never accessed or available for use. Therefore, the new agreement eliminates City
access and use of those facilities and fields including Midland Elementary School field and
library/multi-purpose room, Pomerado Elementary School upper and lower fields, Tierra
Bonita Elementary School field, and Twin Peaks Middle School Soccer and Football fields.
Additionally, the City requested access and use of Valley Elementary Multipurpose Room be
included in the new agreement, but the request was denied due to heavy use by the District.
For the indoor facilities the City will continue to have access to, the new agreement explicitly
details that the City will have access and use of all rooms, components, space, etc. within
indoor facilities. This will help with programming during construction of the Mickey Cafagna
Community Center.
The new agreement reduces City access to the Poway High School football field/stadium to
reflect the limited use made available to the City for the July 4'" event.
Responsibilities
PUSD will resume purchasing and providing janitorial supplies for the shared indoor facilities.
At some point during the existing agreement, the City began purchasing and providing
janitorial supplies due to lack of access to PUSD supplies and storage areas. The lack of
access to basic supplies such as toilet paper, paper towels, mops and cleaning solutions had
a direct impact on restroom use, spills/accidents and safety standards. No amendment was
put in place to reflect the change. Returning to this original 2007 procedure, with provisions
to ensure City access, will provide operational consistency and effective tracking of actual
costs for joint -use facility supplies.
The City will continue to provide janitorial service Saturday and Sunday year-round, and will
additionally be responsible for scheduling and paying for janitorial service during the summer
months (July/August). This aligns with the days/times of City primary use, which includes
Monday through Friday, 5pm to 10pm; all -day Saturday/Sunday; all -day on non -school days;
and all -day Monday through Friday during the summer.
The City and PUSD will both take on responsibility for janitorial deep cleaning of the indoor
facilities with the City responsible for one deep cleaning during the summer, and PUSD
responsible for two deep cleanings during the school year. The level of responsibility aligns
with the allocations for City and PUSD use.
Routine repair and maintenance remains the responsibility of PUSD and is better defined in
the new agreement. Additionally, routine repair and maintenance that impacts safety and/or
program operations must be made by PUSD within 30 days of notification.
Financial
Prior to the installation of artificial turf fields, the 2007 agreement required the City to
reimburse PUSD $34,500 per year for field maintenance and supplies. After the artificial turf
field installations, the reimbursement remained the same despite the lower cost to maintain
and repair artificial turf. PUSD has been inconsistent with providing details and
backup/supporting documentation to validate the reimbursements. The reimbursement in the
2 of 20 April 2, 2019 Item #
City of Poway/PUSD Facilities Use and Maintenance Joint Use Agreement
April 2, 2019
Page 3
new agreement is reduced to $5,000 per field and is specifically for routine maintenance and
repair of the artificial turf fields located at Meadowbrook Middle School and Valley Elementary
10,000 annual total). This dollar amount was based on projections to perform duties per the
field warranty standards which include inspections, brushing/raking, field markings, metal
removal, weed/pest treatment, carpet cleaning, fabric/seam repairs, and infill installation,
replacement, decompaction, and redistribution.
The City is currently expending $7,000 annually for janitorial supplies at the indoor facilities
actively used by the City. With PUSD taking back responsibility for purchasing all janitorial
supplies, the City will now reimburse PUSD and eliminate, at no increased cost, the City staff
responsibility for ordering, delivering, and paying for supplies.
Based on the City's exclusive summer use of the indoor facilities, the City will expend an
additional $1,500 per indoor facility ($3,000 annual total) on janitorial service, and $850 per
indoor facility ($1,700 annual total) for one deep cleaning during July/August.
The 2007 agreement detailed equal City 50%-PUSD 50% responsibility for costs related to
major equipment, improvements and capital upgrades for facilities constructed with city funds.
It did not include a cost-sharing plan for artificial turf field replacement. The new agreement
maintains equal City 50%-PUSD 50% responsibility for indoor facilities, and includes a cost-
sharing formula of City 70%-PUSD 30% for artificial turf fields. Although PUSD initially
proposed that the City be responsible for 100% of the capital upgrades and replacement of
the artificial turf for all three fields, the new agreement formula is based on actual use by each
agency. The replacement costs for the fields located at Meadowbrook and Valley will be
shared City 70%-PUSD 30%, and PUSD will be responsible for 100% of the replacement cost
for the Poway High School field. The anticipated projects and estimated costs are detailed in
Exhibit C. The City proposed including an annual financial appropriation be made by both
agencies to help prepare for future turf replacement costs, but PUSD was not willing to make
this annual commitment.
At PUSD's request, the City considered a reasonable reimbursement to PUSD for costs
associated with routine repair and maintenance of the indoor facilities. Although the proposed
amount was substantially higher, PUSD was unable to provide backup/supporting
documentation for the costs. The new agreement includes $2,500 per indoor facility
reimbursement ($5,000 annual total) with re-evaluation by the City and PUSD bi-annually.
The 2007 agreement specified equally shared City 50%-PUSD 50% costs for security/fire
alarm, and gas/electric expenses at the indoor facilities. The agreement also specifies that
the City is 100% responsible for telephone expenses (with the exception of PUSD extensions).
There are no proposed changes to these financial obligations. To date, no security alarm has
been installed at either location.
Administration (process and procedures)
Each fiscal year, the City and PUSD shall meet between October and December to review
potential capital projects and discuss the costs and the impact on the budget for the following
year. Upon mutual agreement, the projected costs will be allocated and reflected in each
party's approved budget. Each party agrees that the capital projects identified in Exhibit C are
necessary at the time of agreement execution. For potential projects not identified in Exhibit
C, it is agreed that each party will discuss such projects in good faith and not unreasonably
withhold approval.
All payments and reimbursements will be billed and paid twice annually and both parties must
accompany all invoices/requests for reimbursement with backup/supporting documentation.
The City will initially fund any capital upgrade and PUSD must reimburse the City for their
portion within sixty (60) days of receiving an invoice and supporting documentation validating
3 of 20 April 2, 2019 Item #LL
City of Poway/PUSD Facilities Use and Maintenance Joint Use Agreement
April 2, 2019
Page 4
the project costs.
The City and PUSD shall meet each December and June to review the joint -use requirements
and to coordinate use. A representative from each joint -use facility must be present.
To improve accuracy in the collection of data, the City and PUSD will each be independently
responsible for tracking and keeping record of their use of indoor facilities and fields.
City and District staff met multiple times to discuss, draft, and review the proposed agreement.
Environmental Review:
This item is not subject to CEQA review.
Fiscal Impact:
The annual cost of the existing agreement is $75,968. The cost of the new agreement includes
existing, reduced, and new expenses for a total net impact of $61,168 per year. The new
agreement obligates the City to 70% of the cost to replace the artificial turf fields at Valley
Elementary School (est. $539,070 in FY24) and Meadowbrook Middle School (est. $845,604 in
FY 2025). The City will also be responsible for 50% of the cost of facility capital projects including
concrete masonry at Meadowbrook Gymnasium (est. $14,048 in FY20). The actual costs of these
projects will be based on bids submitted at the time of the projects. At this time, the City's portion
of the projected costs to replace the artificial turf fields is not built in to the City's long-term capital
facility replacement program.
Public Notification:
Additional notification was sent to the Superintendent, Poway Unified School District.
Attachment:
A. Joint -Use Agreement between the City of Poway and the Poway Unified School District for
Cooperative Facilities Use and Maintenance
Reviewed/Approved By: Reviewed By: Approved By:
a:o A&
Wendy Kaserman Alan Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
4 of 20 April 2, 2019 Item #L
JOINT -USE AGREEMENT BETWEEN THE CITY OF POWAY AND THE
POWAY UNIFIED SCHOOL DISTRICT FOR COOPERATIVE
FACILITIES USE AND MAINTENANCE
THIS AGREEMENT is made by and between the City of Poway (hereinafter
called "City"), and the Poway Unified School District (hereinafter called "District"), and
entered into on this day of , 2019 ("Effective Date") The City and District are at
times referred to individually as a Party, or collectively as the Parties.
WHEREAS, City and District are mutually interested in and concerned with
providing adequate facilities and services for community sports and recreation; and
WHEREAS, City and District have certain gymnasiums, sports fields, and multi-
purpose rooms under their jurisdiction suitable for students, organized sports, and
community recreation programs; and
WHEREAS, cities and school districts are authorized by Chapter 10 of Part 7 of
Division 1, Title 1 of the Education Code of the State of California (Section 10900 et.
seq.) to organize, promote, and conduct community recreation programs and activities
within or without their territorial limits; and
WHEREAS, the governing bodies of City and District are authorized by Chapter
5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500
et. seq.) to enter into agreements with each other to promote and preserve the health
and general welfare of the community and contribute to the attainment of education and
recreation goals and objectives for children and adults within the community; and
WHEREAS, City has contributed to the community's well-being and expanded
the District's ability to provide its students with adequate facilities through the
construction of gymnasiums, the renovation and reconstruction of certain sports fields
located upon District property, and the use of multi-purpose rooms; and
WHEREAS, City and District recognize that only through their cooperation, will
Poway youth sports user groups and students have access to excellent recreational
facilities; and
WHEREAS, City and the Poway Redevelopment Agency entered into a Joint -
Use Agreement for Cooperative Facilities Use and Maintenance with District on June
12, 2007, with an expiration date of June 12, 2017; and
WHEREAS, on February 1, 2012, the Redevelopment Agency was dissolved by
operation of law, and, pursuant to California Health and Safety Code section 37173,
City became the Successor Agency to the former Redevelopment Agency.
NOW, THEREFORE, based on the foregoing recitals, City and District agree as
follows:
5 of 20 ATTACHMENT A April 2, 2019, Item #1.8
1. PREVIOUS AGREEMENT
A. This Agreement supersedes the Joint -Use Agreement for Cooperative
Facilities Use and Maintenance between City and the Poway
Redevelopment Agency and District entered into on June 12, 2007 ("2007
Agreement"), which as of the Effective Date, no longer has any force or
effect.
2. USE OF FACILITIES
A. City and District will make available for joint use the facilities on the terms
and conditions set forth in this Agreement as described in Exhibit A and B.
91
1. "Joint -Use Facilities" is the collective term used when addressing all
facilities.
2. "District Use" refers to any time and manner in which District is
responsible for the activities at any Joint -Use Facility, as specified
in this Agreement.
3. "City Use" refers to any time and manner in which City is
responsible for the activities at any Joint -Use Facility, as specified
in this Agreement.
4. "Indoor Facilities" is the collective term used when addressing
gymnasiums and multipurpose centers, including all rooms,
components and space within, for the purpose of indoor sports and
recreation activities as described in exhibit a and throughout this
agreement.
5. "Fields" is the collective term used when addressing all artificial turf
fields for the purpose of outdoor sports and recreation activities as
described in exhibit B and throughout this agreement.
6. "Poway Sports Association" refers to any organized sports league
that is composed of a majority of City of Poway residents who are
members of Poway Sports Association.
7. "Capital Projects" refer to all capital improvement projects, as that
term is commonly understood, relating to the joint -use facilities,
including but not limited to those listed on exhibit a and b hereto,
which is incorporated in this agreement by reference as if fully set
forth herein. Capital projects involve the significant update or
replacement of a portion of the joint use facilities, including but not
limited to HVAC replacement, flooring replacement, roofing, stage
curtain replacement, fire suppression/fire alarm system,
bleacher/backboard/scoreboard replacement, electrical switching
panels and gear, and artificial turf replacement.
6 of 20 April 2, 2019, Item #1.8
C. PURPOSE OF JOINT -USE FACILITIES
Joint -Use Facilities will be used in accordance with their main purpose, as
set forth in Exhibits A and B. It is understood that at times the facilities
may be used for other purposes; however, both Parties must approve this
type of use.
D. GENERAL USE
1. District will have primary use of all Indoor Facilities at all times other
than the days and times set forth in Exhibit A as "Days/Times of
City Primary Use."
2. City will have primary use of all Fields at all days and times set forth
in Exhibit B as "Days[Times of City Primary Use."
3. Each Party shall furnish all personnel and supervisory staffing, and
all materials, supplies, and equipment required for recreational
programs/activities conducted or sponsored by that Party.
4. City use and District use of joint -use facilities shall be at no cost to
either party
5. Each Party shall bear those costs associated with the use of the
Joint Use Facilities as set forth in Exhibits A and B, under the
columns "City Responsibility" and TUSD Responsibility".
6. Except for emergency situations, District shall advise City and City
shall advise District as soon as possible, but no less than thirty (30)
days prior to, the loss of use of any Joint -Use Facility.
7. City and District must mutually agree upon storage of equipment at
any Joint -Use Facility for a period longer than six months.
8. District agrees to make available to City the use of all parking
facilities on all District property adjoining the Joint -Use Facilities
during City Use.
9. Long-term parking by City or District is not permitted at any Joint -
Use Facility.
10. City and District programs shall have priority over all other requests
for use.
11. City and District shall each be independently responsible for
tracking and keeping accurate records of their indoor facilities and
fields use.
7 of 20 April 2, 2019, Item #1.8
3. JOINT -USE FACILITY SCHEDULES
A. Master schedules shall be developed and agreed upon by City and District
for each Joint -Use Facility, consistent with the provisions in Exhibits A and
B.
B. City and District shall meet each December and each June to review joint -
use requirements and coordinate use. A representative from each joint -
use facility shall be present.
C. Requests for use by entities not included in this Agreement shall be
submitted to City for times in which City has primary use (City Use), and to
District for times in which District has primary use (District Use), as set
forth in Exhibits A and B of this Agreement. Requests for use during City
Use hours by a District school or its school -related organizations, such as
Parent-Teacher organizations, other than the host school, must be
accompanied by an approval issued by District.
4. EQUIPMENT, IMPROVEMENTS, AND CAPITAL REPLACEMENTS
A. City and District shall provide any specialized equipment for their
respective programs. Replacement and maintenance of said equipment
will be the responsibility of the Party owning said equipment.
B. Either Party may install equipment and improvements at the Joint -Use
Facilities subject to mutual written agreement, which shall not be
unreasonably withheld. The Party installing the equipment or
improvements shall bear all associated costs, and meet standards
established in the California Education Code. Any work done on structural,
life or fire safety, or ADA compliance issues must meet all Division of the
State Architect (DSA) requirements, including DSA inspection
requirements. Title to such equipment or improvements shall remain in the
Party owning said equipment.
C. City agrees to consult District as to the type and specifications of
equipment and facilities to be constructed or modified on District property.
Any structures to be constructed by City shall meet all standards required
by the California Education Code and shall be constructed in accordance
with the requirements of the DSA. City shall furnish to District all plans
and specifications for approval by the District. District approval shall not
be unreasonably withheld.
D. Both parties agree to consult with each other on all construction schedules
prior to any improvements on District property. District shall grant site
access necessary for approved construction to the City so long as
construction does not interfere with the educational process of the District.
5. FACILITY USE ADMISSION FEES
City and District shall each establish fees for use of Joint -Use Facilities during
the time they have primary use, subject to review by the other party. Admission
8 of 20 April 2, 2019, Item #1.8
fees may be charged by either Party for facilities, events, and programs, but only
in an amount to cover the expenses incurred by the Party for the conduct of the
events and programs, including the salary of instructors. All monies so charged
and collected shall be and remain the sole property of the collecting Parry.
These fees will be in accordance with the Civic Center Act (Chapter 4 of Part 23
of Division 3, Title 2 of the Education Code of the State of California (Section
38130 et. seq.).
6. CAPITAL PROJECTS
A. In each fiscal year this agreement is in effect, including the fiscal year of
the effective date, City and District shall meet between October and
December to review potential capital projects and their impact on budget
development, and shall agree on which capital projects will commence in
the following fiscal year. For each capital project to which the parties
mutually agree, the parties shall determine a projected budget, and each
party's portion of that projected budget shall be reflected in each party's
approved budget for the appropriate year(s). For all capital projects, the
City and District shall be responsible for the costs in the percentages set
forth in exhibit a hereto.
B. Each party covenants that it shall not object to any capital project set forth
in exhibit C hereto, and instead, agrees that each capital project set forth
therein is and will be necessary. Exhibit C reflects projected project
timelines at the time of execution of this agreement. Changes to these
estimated project timelines shall be by mutual agreement between the
parties, which shall not be unreasonably withheld.
C. For potential capital projects not set forth in exhibit C, the parties agree
that as part of their obligations under section 6(a), each party shall discuss
such capital projects in good faith, and shall not unreasonably withhold its
approval of a capital project that the other party has determined is
necessary.
D. The City and District shall mutually decide which party will initially fund any
capital projects agreed upon by both parties. City and District shall share
in the costs of capital projects according to the relevant percentage split
for the facility where the capital project is located, as set forth in exhibit A
and B. Upon completion of a capital project, the party that initially funded
the project shall provide the other party with an invoice and back-up
documentation validating the final cost of the project. Reimbursement for
the relevant percentage of the entire cost of the capital project is due
within sixty (60) days of receipt of invoice and back-up documentation.
E. Maintenance and repair responsibilities associated with future structures,
upgrades or other installations on District property shall be mutually
agreed upon by both parties and established in writing at the time the
District approves the project. The City shall provide an amended or
updated agreement to reflect the changes.
9 of 20 April 2, 2019, Item #1.8
F. Any structures to be constructed by City shall meet all standards required
by the California education code and shall be constructed in accordance
with the requirements of the DSA. City shall furnish to District all plans
and specifications for approval by the District. District approval shall not
be unreasonably withheld.
7. REIMBURSABLE COSTS
A. Annual costs cited in the Agreement, which are incurred by either City or
District and subject to reimbursement, shall be reimbursed to the other
Party within sixty (60) days of receipt of the invoice requesting payment,
pursuant to Exhibit A. The billing party shall provide back-up
documentation validating the charges with the invoice.
B. All payments and reimbursements shall be billed and paid twice annually
by February 28 for the prior six (6) full calendar months and by August 31
for the final six (6) full calendar months of the preceding fiscal year.
8. EDUCATION CODE LIMITATIONS
In the use of the facilities subject to this Agreement, City agrees to comply with
all of the requirements of the Education Code of the State of California setting
forth the limitations, requirements, and restrictions on the use of school facilities.
9. EMPLOYMENT RELATIONSHIPS AND OBLIGATIONS
For facilities subject to this Agreement, all persons employed in the performance
of services and functions for the City shall be deemed City employees and no
City employee shall be considered as an employee of the District or under
jurisdiction of the District, nor shall such City employees have any District
pension, civil service, or other status while an employee of the City. District shall
not be responsible for the payment of any salary, wage or other compensation to
any City personnel performing services hereunder for the City. City shall not be
liable for compensation or indemnity to any District employee for injury or
sickness or wages arising out of his/her employment with the District.
For purposes of this Agreement, all persons employed in the performance of
services and functions for the District shall be deemed District employees and no
District employees shall have any City pension, civil service, or other status while
an employee of the District. City shall not be responsible for the payment of any
salary, wage or other compensation to any District personnel performing services
hereunder for the District. District shall not be liable for compensation or
indemnity to any City employee for injury or sickness or wages arising out of
his/her employment with City.
10. INDEMNITY AND HOLD HARMLESS
A. District shall hold harmless, defend, and indemnify City, members of the
City Council, and its officers, employees, and agents from any and all
losses, demands, damages (including costs and attorney's fees), or
causes of action arising from injury to property or person which may arise
10 of 20 April 2, 2019, Item #1.8
from District Use or sponsorship of Joint -Use Facilities subject to this
Agreement. However, District shall not be obligated to hold harmless,
defend, or indemnify City when the aforementioned claims arise from
dangerous conditions existing in or on City -owned buildings or facilities
that City had actual knowledge of and failed to correct.
B. City shall hold harmless, defend, and indemnify, District, members of its
governing body, and its officers, employees, and agents from any and all
losses, demands, damages (including costs and attorney's fees), or
causes of action arising from injury to property or person which may arise
from City Use or sponsorship of Joint -Use Facilities subject to this
Agreement. However, City shall not be obligated to hold harmless,
defend, or indemnify District when the aforementioned claims arise from
dangerous conditions existing in or on District -owned grounds, buildings,
or facilities that District had actual knowledge of and failed to correct.
11. STUDENT SAFETY
The safety and security of District students and staff are of paramount
importance. Therefore, use of Joint -Use Facilities by the City during school
hours will be limited to special requests and will require advance notice and prior
approval by the District. All Facility use by non -District users (both for City -
sponsored and other community events) will be governed by the District's Board
policies and administrative regulations regarding facilities use.
12. INSURANCE
A. During the term of this Agreement, each Party shall obtain and maintain in
full force and affect the following insurance coverages:
1. Workers' Compensation Insurance. Each Party shall provide
Workers' Compensation insurance in statutory amount.
2. General Liability Insurance. Each Party shall carry General Liability
insurance, Bodily Injury and Property Damage combined per
occurrence, in the minimum amount of $2,000,000 and $4,000,000
annual aggregate, and shall furnish proof thereof in the form of a
certificate of insurance, or other evidence of coverage if self-
insured, to the other Party within thirty (30) days of the effective
date of this Agreement. Each Party shall be added as an additional
insured to the other Party's respective policy.
3. Certificate of Insurance. Each Party shall deliver within fifteen (15)
days of the demand by the other Party, certificates of insurance or
self-insurance, which shall provide that no cancellation or major
change in coverage will be made during the term of this Agreement,
without thirty (30) days written notice to the other Party prior to the
effective date of such cancellation or change in coverage.
11 of 20 April 2, 2019, Item #1.8
B. Non -City and non -District users receiving authorization to use the Joint -
Use Facilities must meet the insurance requirements of the Party from
whom they receive authorization for facility use.
13. TERM
This Agreement shall become effective commencing on the Effective Date and
shall be in force for a period of ten (10) years. This Agreement may be extended
in three 5 -year increments by written agreement of both Parties, or may be
cancelled by either Party upon written notification not less than sixty (60) days in
advance of the end of the fiscal year.
14. NOTICE
Notices or demands hereunder given or to be given by City or District to the other
may be personally served upon City or District or any person hereafter
authorized by either in writing to receive such notice or may be served by
certified letter addressed to the appropriate address hereinafter set forth or to
such other address as City and District may hereafter designate by written notice.
City of Poway
Director of Community Services and
Director of Public Works
City of Poway
13325 Civic Center Drive
Poway, CA 92064
Poway Unified School District
Superintendent
Poway Unified School District
15250 Avenue of Science
San Diego, CA 92128
15. AMENDMENT
The provisions of this Agreement may be amended or modified only by mutual
consent and written agreement of the respective parties.
16. DISPUTE RESOLUTION
In the event of any dispute or difference arising from this Agreement or from the
use or proposed use of the facility, then, in this event, said dispute or difference
should be settled and arbitrated jointly by the City Manager and Superintendent
or respective designee. If the representatives of the Parties cannot settle the
dispute, a neutral third party shall be selected by the Parties to serve as
arbitrator. The decision of the arbitrator shall be final, and both Parties expressly
agree to be bound by any decision. The Parties shall split any costs associated
with the third party arbitrator equally.
17. SUPPLEMENTAL AGREEMENT
City and District may enter into supplemental agreements to provide more
specific detail regarding the operation of any of the Joint -Use Facilities. If there
is any conflict between the supplemental agreement and this Joint -Use
Agreement, the supplemental agreement shall govern.
12 of 20 April 2, 2019, Item #1.8
18. INVALIDITY
The invalidity of any provision of this Agreement as determined by a court of
competent jurisdiction, shall in no way affect the validity of any other provision
hereof.
19. BINDING EFFECT
This Agreement shall inure to the benefit of and shall be binding upon City and
District and their respective successors and assigns.
13 of 20 April 2, 2019, Item #1.8
IN WITNESS WHEREOF, the City and District have signed this Agreement in
Poway, California.
City of Poway
Tina White
City Manager
ATTEST:
Faviola Medina
City Clerk
APPROVED AS TO FORM:
Alan Fenstermacher
City Attorney
Poway Unified School District
Marian Kim -Phelps, Ed.D.
Superintendent
ATTEST:
Clerk of the Board
14 of 20 April 2, 2019, Item #1.8
Exhibit A
INDOOR FACILITIES
Joint -Use Facility —
INDOOR FACILITIES
Days/Times of City
Primary Use City Responsibility PUSD Responsibility
Twin Peaks Monday — Friday Routine repair and All routine repair and
Multipurpose Center 5 pm to 10 pm maintenance costs annual maintenance
14640 Tierra Bonita Rd Saturday and reimbursement to District: Gas and electricity costs 100%
Poway, CA 92064 Sunday all day 2,500 with 50% annual
All day on non- Gas and electricity costs reimbursement by City
school days and annual reimbursement to Fire alarm system operation
holidays District: 50% and maintenance
Monday — Friday all Telephone expenses Water and sewer service
day during summer associated with Multipurpose Janitorial service: Monday —
City and District Center, except for District Friday year-round except
shall mutually agree extensions during the summer months
to a schedule of use Janitorial service: Saturday July & August)
by the District for and Sunday year-round, and Janitorial supplies: year-round
school activities not Monday -Friday during the Provide city with key(s) to
to exceed twenty summer months (July & janitorial supplies storage, and
20) uses per year. August) contact information for on-site
A fee may be Janitorial supply costs annual year-round custodian
charged to District reimbursement to district: supervisor
for additional uses. 3,500 Provide janitorial deep
Janitorial deep cleaning: 1/yr cleaning: 2/yr during school
during summer year
Schedule joint -use time Refinish gym floor during
Capital upgrade and major District winter break
maintenance costs: 50% Submit use permit requests to
City on quarterly basis
Capital upgrade and major
maintenance costs: 50%
16 of 20 April 2, 2019, Item #1.8
Exhibit A cont.
INDOOR FACILITIES
Joint -Use Facility —
INDOOR FACILITIES
Days/Times of City
Primary Use City Responsibility PUSD Responsibility
Meadowbrook Monday — Friday Routine repair and All routine repair and
Gymnasium 5 pm to 10 pm maintenance costs annual maintenance
12320 Meadowbrook Ln Saturday and reimbursement to District Gas and electricity costs 100%
Poway, CA 92064 Sunday all day 2,500 with 50% annual
All day on non- Gas and electricity costs reimbursement by City
school days and annual reimbursement to Water and sewer service
holidays District: 50% Janitorial service: Monday —
Monday — Friday all Fire alarm system operation Friday year-round except
day during summer and maintenance during the summer months
City and District Telephone expenses July & August)
shall mutually agree associated with Gymnasium, Janitorial supplies: year-round
to a schedule of use except for District extensions Provide city with key(s) to
by the District for Janitorial service: Saturday janitorial supplies storage, and
school activities not and Sunday year-round, and contact information for on-site
to exceed twenty Monday -Friday during the year-round custodian
20) uses per year. summer months (July & supervisor
A fee may be August) Provide janitorial deep
charged to District Janitorial supply costs annual cleaning: 2/yr during school
for additional uses. reimbursement to district: year
3,500 Refinish gym floor during
Janitorial deep cleaning: 1/yr District winter break
during summer Submit use permit requests to
Schedule joint -use time City on quarterly basis
Capital upgrade and major Capital upgrade and major
maintenance costs: 50% maintenance costs: 50%
1. Purpose
The primary purpose of Indoor Facilities is to accommodate indoor sports and recreation
activities that are organized by the District, City and Poway Sports Association.
2. Use
City will have access to all space within the indoor facilities including gymnasiums, lobbies,
rooms, closets, storage, offices, stages, and restrooms. District will ensure all space within
the indoor facilities is clean, maintained, operational and ready for city use.
3. Equipment
City will provide and use display cases/bulletin boards in the lobby of indoor facilities.
16 of 20 April 2, 2019, Item #1.8
4. Security
District will provide City with keys to the indoor facilities. Both Parties agree that the
number of keys issued to City and District personnel should be limited. City will maintain a
list of people who have been issued keys.
5. Janitorial Services
City and District shall both provide janitorial and general cleanup services as described in
Exhibit A. City and District shall jointly set a schedule, guidelines and standards of custodial
maintenance, which shall be monitored by both Parties. Deep cleanings shall apply to all
rooms, space and components within the indoor facility. The maintenance schedule shall
be posted onsite with copies to appropriate City and District personnel.
6. Janitorial Supplies
District will purchase and provide all janitorial supplies year-round (including during the
summer months) for operations carried out by both parties as described in Exhibit A.
District will provide city with key(s) to janitorial supply storage, and contact information for
the on-site year-round custodian supervisor responsible for purchasing and maintaining
supply inventory (including during the summer months). City will reimburse the District
3,500 per year/per site for janitorial supplies (not to exceed $7,000 total per year).
7. Routine Repair and Maintenance
Routine repair and maintenance for indoor facilities includes keeping the facility in a safe
operating condition, painting interior and exterior, interior and exterior lighting, plumbing
repairs, HVAC repairs and maintenance, glass repair and replacement, pest control, door
and lock maintenance and repair, water heater maintenance and repair, floor maintenance
and repair including refinishing, maintenance and repair of gym equipment including
backboards, fire exit signs and other safety items, and utility repairs. Routine repair and
maintenance that impacts safety and/or program operations must be made by the District
within 30 days of notification.
8. Capital Upgrade and Maior Maintenance
Capital upgrade, replacement and major maintenance (beyond routine repair and
maintenance) for indoor facilities includes the following items: HVAC replacement, flooring
replacement, roofing, stage curtain replacement, fire suppression/fire alarm system,
bleacher/backboard/scoreboard replacement, and electrical switching panels and gear.
City and District shall share in the costs of these capital upgrades, replacements and major
maintenance items with the City responsible for 50% and the District responsible for 50%
and only upon mutual determination and agreement between both parties. Payment
logistics such as sharing vendor payment responsibilities 50/50, or one party assuming all
vendor payment responsibilities and the other party assuming 50% reimbursement
payment responsibilities, will be dependent on the project and mutual determination of both
parties.
17 of 20 April 2, 2019, Item #1.8
Exhibit B
FIELDS
Joint -Use Facility - Days/Times of City City Responsibility PUSD ResponsibilityFIELDSPrimaryUse
Meadowbrook Middle Monday — Friday Routine repair and All routine repair and
School 4 pm to 10 pm maintenance costs maintenance of artificial turf, per
Upper Artificial Turf Field Saturday and Sunday annual reimbursement manufacturer's requirements, to
12320 Meadowbrook Ln all day to District: $5,000 maintain warranty
Poway, CA 92064 All day on non -school Field lighting costs and Irrigation
days and holidays maintenance of lights, Submit use permit requests to
Monday — Friday all timers, and meters City on quarterly basis
day during summer Schedule joint -use time Capital upgrade and major
City and District shall Capital upgrade and maintenance costs: 30%
mutually agree to a major maintenance
schedule of use by the costs: 70%
District for school
activities not to exceed
twenty (20) uses per
year. A fee may be
charged to District for
additional uses.
Valley Elementary Monday — Friday Routine repair and All routine repair and
Artificial Turf Field 5 pm to 10 pm maintenance costs maintenance of artificial turf, per
13000 Bowron Rd Saturday and Sunday annual reimbursement manufacturer's requirements, to
Poway, CA 92064 all day to District: $5,000 maintain warranty
All day on non -school Field lighting costs and Irrigation
days and holidays maintenance of lights, Submit use permit requests to
Monday — Friday all timers, and meters City on quarterly basis
day during summer Schedule joint -use time Capital upgrade and major
City and District shall Capital upgrade and maintenance costs: 30%
mutually agree to a major maintenance
schedule of use by the costs: 70%
District for school
activities not to exceed
twenty (20) uses per
year. A fee may be
charged to District for
additional uses.
Poway High School Field July 3, 4, 5 all day All routine repair and
15500 Espola Rd maintenance of artificial turf
Poway, CA 92064 Operation and maintenance of
field lights
All utility costs
100% of capital upgrade and
major maintenance costs
Purpose of Fields Program
The primary purpose of Fields is to accommodate outdoor sports and recreation activities
that are organized by the District, City, and Poway Sports Association.
18 of 20 April 2, 2019, Item #1.8
2. Fields Maintenance
District shall be solely responsible for and shall execute the routine maintenance and
repair of all District real property and installations such as fences, equipment, fields, turf,
irrigation systems, etc. District will maintain artificial turf fields per field warranty
standards including inspections, brushing/raking, field markings, metal removal,
weed/pest treatment, carpet cleaning, fabric/seam repairs, and infill installation,
replacement, decompaction, and redistribution.
City will reimburse the District $10,000 total per year for the routine maintenance and
repair of the artificial turf fields at Meadowbrook Middle School and Valley Elementary
school field ($5,000 per field). Routine maintenance and repair is defined by
manufacturer's requirements to maintain warranty
City is responsible for field litter removal during and after City events. Non -City permit
holders are responsible for field litter removal during and after their events. District is
responsible for litter removal at all other times.
No vehicles are allowed to park on fields.
City and District shall cooperate in protecting the Fields and shall limit use during times
where both Parties mutually determine and agree that field use may result in damage,
unsafe surface, or interference with repairs or restoration.
City and District shall periodically review maintenance standards and practices and
mutually determine and agree upon recommended changes.
3. Utility Costs
District is responsible for water and sewer costs for all fields.
City shall pay all electrical expenses associated with field lighting at Meadowbrook
Middle school and Valley Elementary School.
If District uses field lighting, City may bill the district for the light use on an annual basis.
4. Capital Upgrade and Major Maintenance
Capital upgrade, replacement and major maintenance (beyond routine repair and
maintenance) for fields is only applicable to Meadowbrook Middle School artificial turf field
and Valley Elementary artificial turf field. City and District shall share in the replacement
costs, to include labor and materials, with the City responsible for 70% and the District
responsible for 30% and only upon mutual City determination and agreement between both
parties.
19 of 20 April 2, 2019, Item #1.8
Exhibit C
LIST OF ANTICIPATED CAPITAL PROJECTS
Fiscal Year Projects: Meadowbrook Gymnasium Total Estimated Cost
14,048
FY20 Concrete masonry (on top of building) City obligation 50%: $7024
District obligation: 50%: $7024
Fiscal Year Projects: Valley Elementary Field Total Estimated Cost
539,070
FY24 Artificial turf City obligation 70%: $377,349
District obligation: 30%: $161,721
Fiscal Year Projects: Meadowbrook Field Total Estimated Cost
845,604
FY25 Artificial turf City obligation 70%: $591,922
District obligation: 30%: $253,682
20 of 20 April 2, 2019, Item #1.8
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
City of Poway
COUNCIL AGENDA REPORT
April 2, 2019
Honorable Mayor and Members of the City Counc{ ,
Robert Manis, Director of Development Services
Austin Silva, Senior Planner p4
858) 668-4658 / asilvaaa.goway.org
APPROVED
APPROVED AS AMENDED
SEE MINUTES)
DENIED
REMOVED
CONTINUED
Resolution No.
Tentative Tract Map 19-001; Request for Approval of Time Extension
for a Previously Approved Tentative Tract Map
The City Council's original approval of Tentative Tract Map (TTM) 06-02, which has been
extended previously, is set to expire. The applicant has submitted a request for a time extension
to allow additional time to complete the processing requirements for recordation of the Final Map.
Recommended Action:
It is recommended that the City Council approve TTM 19-001 subject to the attached Resolution
Attachment A).
Discussion:
The project site is an approximately 122 -acre property located on the east side of Old Coach
Road, approximately one mile north of Espola Road in the Planned Community (PC) zone. The
project location and zoning map is included as Attachment B. The project site currently is
comprised of five legal lots. On March 13, 2007, the City Council approved TTM 06- 02, which
reconfigured the project site into five residential lots ranging in size from one to two acres that are
clustered in the northwest corner of the site, and created a large 111 -acre open space lot on the
balance of the site as shown on Attachment C. Resolution P-07- 08 approving TTM 06-02 is
included as Attachment D. No changes are proposed to the approved lot configuration.
The TTM was approved by the City Council for two years pursuant to the Poway Municipal Code
PMC), and within that time the applicant is required to process and receive approval of a Final
Map from the City Council. TTM 06-02 was set to expire on March 13, 2009. However, the
expiration date was postponed as a result of four automatic time extensions granted by the State
of California legislature since 2008. Consequently, the expiration date for TTM 06-02 was set for
March 13, 2016. In January 2016, the City Council approved the first one-year extension which
extended the map approval until March 13, 2017. In February 2017, City Council approved the
second one-year extension which extended the map approval until March 13, 2018. A third one-
year extension was approved by the City Council in May 2018 which extended the map approval
until March 13, 2019.
On January 29, 2019, before the TTM expiration date, the applicant submitted a fourth request
for an extension. Upon submittal of a time extension request, the expiration is automatically
extended 60 days, to May 12, 2019 (Government Code 66452.6(e)). The applicant needs
1 of 27 April 2, 2019, Item #3_
TTM 19-001
April 2, 2019
Page 2
additional time to complete the Final Map process. The applicant is requesting City Council
approval of an extension under the provisions of Section 16.10.080 of the PMC. Pursuant to the
PMC, a one-year time extension may be granted with no more than five extensions in total. With
approval of this extension request, which is the fourth request, the applicant will be entitled to one
additional, one-year extension. All the findings and Conditions of Approval from City Council
Resolution P-07-08 will remain in full force and effect. As this is only an extension request, no
new Conditions of Approval are recommended.
Environmental Review:
This time extension is not subject to the California Environmental Quality Act (CEQA) pursuant to
Section 15061(b)(3) of the CEQA Guidelines in that this action has no possibility of an effect on
the environment. Environmental review was conducted pursuant to CEQA in conjunction with
original approval of TTM 06-02.
Fiscal Impact:
None.
Public Notification:
A public notice was published in the Poway News Chieftain and mailed to property owners and
occupants located within 500 feet of the project site.
Attachments:
A. Resolution
B. Zoning and Location Map
C. Approved TTM
D. City Council Resolution P-07-08
Reviewed/Approved By: Reviewed By: Approved By:
Wendy Kaserman Alan Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
2 of 27 April 2, 2019, Item #3,
RESOLUTION NO. P -19-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, APPROVING TENTATIVE TRACT MAP
19-001; A TIME EXTENSION OF THE APPROVAL
FOR TENTATIVE TRACT MAP 06-02;
ASSESSOR'S PARCEL NUMBERS (APN):
277-080-04, 277-071-05, 14, 16, and 19
WHEREAS, on March 13, 2007, the City Council approved Tentative Tract Map (TTM) 06-
02, along with a Mitigated Negative Declaration, for a six -lot subdivision of an approximately 122 -
acre site, consisting of five residential lots and one open space lot, located on the east side of Old
Coach Road and approximately one mile north of Espola Road in the Planned Community (PC)
zone;
WHEREAS, the California State Assembly, has periodically granted an automatic time
extension to all Tentative Maps that had not expired, which resulted in extending the expiration
date of TTM 06-02 to March 13, 2016;
WHEREAS, pursuant to Section 16.10.080 of the Poway Municipal Code (PMC), the City
Council in January 2016 approved the first one-year time extension, a second one-year extension
was approved in February 2017, and in May 2018 approved the third one-year extension;
WHEREAS, the applicant has submitted on January 29, 2019 a request pursuant to the
PMC for the fourth one-year time extension of the project approval which automatically extends
the expiration date by 60 days, to May 12, 2019 (Government Code 66452.6(e)); and
WHEREAS, on April 2, 2019, the City Council held a duly advertised public hearing to
solicit comments from the public, both for and against, relative to this application;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as
follows:
Section 1: This time extension is exempt from the California Environmental Quality Act
CEQA) pursuant to Section 15061(b)(3) of the CEQA Guidelines in that this action has no
possibility of an effect on the environment. Environmental review was conducted pursuant to
CEQA in conjunction with the original approval of the project.
Section 2: City Council Resolution P-07-08 remains in full force and effect except that
a time extension for the approval is hereby granted by the City Council. The fourth time extension
of this TTM approval shall be for one year from March 13, 2019 to March 13, 2020. Only one
additional one-year time extension is permissible.
Section 3: The parties are hereby informed that the time within which judicial review
of this decision must be sought is governed by Section 1094.6 of the California Code of Civil
Procedure.
3 of 27 ATTACHMENT A April 2, 2019, Item #3. 1
Resolution No. P-19
Page 2
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California, at a regular meeting this 2nd day of April 2019.
Steve Vaus, Mayor
ATTEST:
Faviola Medina, CMC, City Clerk
STATE OF CALIFORNIA )
SS.
COUNTY OF SAN DIEGO )
I, Faviola Medina, City Clerk of the City of Poway, California, do hereby certify, under
penalty of perjury, that the foregoing Resolution No. P-19- was duly adopted by the City
Council at a meeting of said City Council held on the 2nd day of April 2019 and that it was so
adopted by the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
Faviola Medina, CMC, City Clerk
City of Poway
4 of 27 April 2, 2019, Item # 3.
5 of 27 ATTACHMENT B April 2, 2019, Item #-3-.1
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RESOLUTION NO. P-07-08
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA,
APPROVING A MITIGATED NEGATIVE DECLARATION
AND TENTATIVE TRACT MAP (TTM) 06-02
ASSESSOR'S PARCEL NUMBERS 277-071-05, 14, 15, 16, and 277-080-04
WHEREAS, a request was submitted by Sunroad Enterprises for a Tentative Tract
Map (TTM 06-02) to re -subdivide five existing legal lots consisting of approximately 122.5
acres, located east of Old Coach Road, approximately one mile north of Espola Road, in
the Planned Community (PC) zone; and
WHEREAS, on January 16, 2007, the City Council held a public hearing on the
above -referenced item; and
WHEREAS, the City Council has read and considered the Agenda Report for the
proposed project and has considered other evidence presented at the public hearing.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway
as follows:
Section 1: The City Council has considered the Environmental Initial Study (EIS),
Mitigated Negative Declaration (MND), and associated Mitigation Monitoring Program,
shown as Exhibit A of this Resolution, for Tentative Tract Map 06-02. The subject EIS
and MND documentation are fully incorporated herein by this reference. The City Council
finds, on the basis of the whole record before it, that there is no substantial evidence the
project will have a significant impact on the environment, that the mitigation measures
contained in the EIS and Exhibit A hereof will mitigate potentially significant impacts to a
less than significant level, and that the MND reflects the independent judgment and
analysis of the City. The City Council hereby approves the MND and the associated
Mitigation Monitoring Program.
Section 2: Pursuant to the City of Poway Habitat Conservation Plan (Poway HCP), a
biological report by REC Consultants (dated March 2006) was submitted for the property.
Project development will permanently impact approximately 9.4 acres of habitat,
consisting of Coastal Sage Scrub (CSS) and Non -Native Grassland (NNG), located on
property inside of the Mitigation Area, and partially within the Biological Core Linkages
Area, and near Proposed Resource Protection Area (PRPA) 4a and the Mount Beatrice
Cornerstone of the Poway HCP. In accordance with the Poway HCP, the required
findings for approval of the proposed mitigation for the removal of habitat for Tentative
Parcel Map 06-02 are as follows:
A. The proposed project is inside of the Mitigation Area of the Poway HCP. Per the
HCP, habitat impact mitigation is required at the rate of 2:1 for CSS and 1:1 for
NNG. Accordingly, 16.6 acres is the required mitigation for impact to 8.3 acres of
CSS and 1. 1 acres is required for the impact to 1.1 acres of Non -Native
Grassland, for an overall total of 17.7 acres of mitigation. The applicant is
proposing that 17.7 acres of habitat be placed in an on-site Biological
8 of 27 ATTACHMENT D April 2, 2019, Item #3.1
Resolution No. P-07-08
Page 2
Conservation Easement (BCE) as required mitigation. An Open Space Easement
will be placed over the remaining approximately 94 -acre undeveloped portion of
the land to protect the native habitat in perpetuity. Therefore, the mitigation is
consistent with and furthers the implementing objectives of the Poway HCP.
B. Preservation of such habitat within the Mitigation Area, and/or payment of In -Lieu
Fees will contribute toward the building of the ultimate total Mitigation Area
preserve system of the HCP. Therefore, such habitat preservation will serve to
enhance the long-term viability and function of the preserve system.
C. The habitat preserved through on-site dedication will be to the long-term benefit of
the Poway Subarea Habitat Conservation Plan (PSHCP) covered species and
their habitats in that the recordation of a Biological Conservation Easement over
undisturbed and unencumbered habitat will promote a meaningful addition to the
assembly of a viable regional system of uninterrupted natural habitat resources,
habitat linkages, buffers, and wildlife corridors.
D. The preserved habitat will foster the incremental implementation of the PSHCP in
an effective and efficient manner in that the preservation of on-site conservation
area(s) are within an identified Mitigation Area within the City and will likewise
contribute towards assembling the total Mitigation Area preserve system.
E. The preserved habitat will not result in a negative fiscal impact with regard to the
successful implementation of the PSHCP as the subject mitigation lands will be
dedicated to the City of Poway in fee title and/or placed within permanent public
Biological Conservation Easements.
Section 3: The findings, in accordance with the State Subdivision Map Act
Government Code Section 66410 et. seq.) for Tentative Tract Map 06- 02, are made as
follows:
A. The Tentative Tract Map is consistent with the General Plan in that it proposes to
re -subdivide five existing legal lots, ranging in size from one to 3. 5 acres net acres,
on an approximate 122.5 -acre site, that comply with the density limits and
minimum lot size standards for the Old Coach Planned Community (PC) zone
contained in the General Plan and Poway Municipal Code.
B. The design and improvements required of the Tentative Tract Map are consistent
with the General Plan, in that the approved lot sizes and configurations adhere to
the development standards for the Planned Community zone,
C. The site is physically suitable for the type of development and the density
proposed in that the proposed subdivision complies with the density limitations and
minimum lot size standards of the General Plan and Poway Municipal Code.
9 of 27 April 2, 2019, Item # 3,t
Resolution No. P-07-08
Page 3
D. The design of the Tentative Tract Map is not likely to cause substantial
environmental damage and avoidable injury to humans and wildlife or their habitat
in that the anticipated impacts to biological resources will be mitigated on-site to a
level of insignificance.
E. The Tentative Tract Map is not likely to cause serious public health problems as
City water and sewer service will be provided to the site by the developer and
designed to comply with City standards.
F. The design of the Tentative Tract Map will not conflict with any easement by the
public at large, now of record, for access through or use of the property within the
proposed subdivision.
G. The grading plan for the proposed Tentative Tract Map includes grading in excess
of the maximum graded area for Lot 4. The City Council finds that this excess
grading is reasonable and necessary to minimize potentially significant visual
impacts, and therefore, the additional grading for Lot 4 is hereby approved.
Section 4: The findings in accordance with Government Code Section 66020 for the
public improvements are made as follows:
A. The design and improvements of the proposed development are consistent with all
elements of the General Plan, as well as City Ordinances, because all necessary
services and facilities will be available to serve the project. The construction of
public improvements is needed as a result of the proposed development to protect
the public health, safety and welfare as identified below:
Roadway improvements on-site will be constructed.
2. A water line from the existing line in Old Coach Road will be constructed to
serve the development.
3. On-site drainage improvements will be constructed to handle the surface
water runoff.
4. Fire hydrants will be constructed to serve the development and provide fire
protection.
5. Access to the site will be provided in accordance with City standards and to
ensure adequate emergency access.
Section 5: The City Council hereby approves Tentative Tract Map 06-02, a
re -subdivision of five existing legal lots on approximately 122.5 acres located east of Old
Coach Road, approximately one mile north of Espola Road, in the Planned Community
PC) zone, as shown on the Tentative Tract Map dated August 30, 2006, subject to the
following conditions:
10 of 27 April 2, 2019, Item # 3.
Resolution No. P-07-08
Page 4
A. This approval is not inclusive of the design of the proposed single-family homes.
Separate approval of the home design and footprints shall be applied for through
the Development Review/Minor Development Review Application process prior to
issuance of Building Permits.
B. Approval of this request shall not waive compliance with any sections of the
Zoning Ordinance and all other applicable City Ordinances in effect at the time of
Building Permit issuance.
C. This approval is based on the existing site conditions represented on the approved
Tentative Tract Map. If actual conditions vary from representations, the approved
map must be changed to reflect the actual conditions. Any substantial changes to
the approved Tentative Tract Map, prior to Final Map approval, must be approved
by the Director of Development Services and may require approval of the City
Council.
D. The developer is required to comply with the Poway Municipal Code requirements
that govern construction activity and noise levels.
E. Within thirty (30) days after City Council approval of the Tentative Tract Map, the
applicant shall submit in writing to the City that all conditions of approval have
been read and understood.
F. The project shall take access from the private road easement off of Old Coach
Road, as shown on the approved Tentative Tract Map. No road easement or
other access easement, except the Public Recreation Trail Easements on the
approved Tentative Tract Map, shall be allowed through the recorded Biological
Conservation Easement.
G. Prior to Final Map approval, unless other timing is indicated, the following
conditions shall be complied with:
Engineering)
1. Within thirty days after City Council approval of the tentative map, the
applicant shall submit in writing to the City that all conditions of approval
have been read and understood.
2. Within thirty days after City Council approval of the tentative map, the
subdivider shall make a reservation for a sewer Letter of Availability for five
Equivalent Dwelling Units (EDU) and post with the City a non-refundable
sewer connection fee of $3,356.00 which represents 20% of the sewerage
connection fee in effect at the time the LOA is issued.
3. Within thirty days after City Council approval of the final map, the subdivider
shall post with the City an additional 30% sewer connection fee of
5,034.00.
11 of 27 April 2, 2019, Item #3. t
Resolution No. P-07-08
Page 5
The balance of the sewer connection fees in the amount of $8,390.00,
representing 50% payment, shall be paid prior to Building Permit issuance
but no later than 36 months from recordation of the final map, unless
otherwise granted a time extension to complete the project. Each
residential lot shall pay a balance of $1,678.00. Reference is hereby made
to City Ordinance No. 83, codified as Chapter 13.08 of the Poway Municipal
Code, as to time extensions and for other particulars.
The five EDU's are for residential purposes only. Any sewer connection,
other than residential use for the lots in the subdivision, may be required to
reserve and pay additional sewer EDU's prior to Building Permit issuance or
prior to connection to the sewer line, whichever comes first.
5. Submittal of a final map to the City for review and approval, and payment of
map -checking fee ($1,000.00 per sheet). The final map shall conform to
City standards and procedures, the City Subdivision Ordinance, the
Subdivision Map Act, the Land Surveyors Act, the Resolution of Approval
as approved by the City Council and shall be in substantial conformance
with the approved tentative map. Appropriate map review fees shall be
paid at time of submittal.
6. The applicant/developer shall cause the dedication of the following to the
City: All easements and fee title conveyance to the City of areas within the
subdivision shall be made on the final map. All easements shall provide
closure calculations to the City Engineer with the final map for review and
approval.
a. The private street - Offer of Dedication to be made by a certificate on
the final map, but would be rejected by the City. This street shall be
dedicated to the City on behalf of the public.
b. General utility easement for sewer and water lines purposes and
access easement over the private street.
C. An exclusive easement, a minimum of 20.00 feet wide for each new
public water line or new public sewer line located outside a publicly
dedicated street right-of-way, shall be dedicated to the City. If water
and sewer lines are installed parallel with each other, the combined
width may be reduced to 30.00 feet wide.
d. Open Space and Biological Conservation Easements, the locations
of which are shown on the tentative map or subsequently recorded.
e. Drainage easements, if any. The easement, a minimum of 20.00
feet wide, is needed for drainage facilities to be maintained by the
City. The City shall make a determination, during improvement plan
12 of 27 April 2, 2019, Item #,Lj
Resolution No. P-07-08
Page 6
and/or final map review, as to which drainage facilities are to be City -
maintained.
7. Plans for the street improvements to serve the project shall be submitted to
the City for review and approval. The submittal shall include appropriate
fees for improvement plan check and inspection. The plans shall include the
following:
Street improvements to comply with the criteria for non -dedicated
rural street standards and specifications per Sections 12.20.110 and
12.20.120 of the Poway Municipal Code.
The private street constructed as a 28 -foot -wide curb -to -curb
roadway within a 42 -foot right-of-way, and in substantial
conformance with the improvements as depicted on the tentative
map for the subdivision. Improvements shall include, but are not
limited to, roadway paving, and construction of concrete curb and
gutter. The pavement structural section shall be based on a traffic
index of 5.6.
C. Street cul-de-sac shall be improved to a minimum roadway diameter
of 76.00 feet curb -to -curb. Appropriate right-of-way shall be
provided.
d. The plans shall provide for pavement to be constructed in at least
two lifts. The second lift shall be placed after all other subdivision
improvement construction is completed and building construction is
substantially complete, as determined by the City's Engineering
Inspector.
e. Private streetlights shall be installed at all street intersections, cul-de-
sacs, and at other locations to be determined by the City Engineer.
Streetlight standards and specifications shall be subject to approval
by the City prior to improvement plan approval.
The applicant/developer shall bear the full cost of designing and
installing these improvements, and is not entitled to any
reimbursement from the City.
8. Plans for the public water and sewer lines shall be submitted to the City for
review and approval. The submittal shall include appropriate fees for
improvement plan check and inspection. The plans for these improvements
may be included with the street improvement plans, and shall include the
following:
a. The size and location of the water lines as established by a water
system analysis prepared by the City's water engineer. Fire hydrants
13 of 27 April 2, 2019, Item #3_1J
Resolution No. P-07-08
Page 7
shall be located in the approximate location shown on TTM 06-02 to
the satisfaction of the City Fire Marshal.
b. Sewer main lines and appurtenances designed to City's standards
and specifications. Separate sewer laterals shall be provided for
each lot in the subdivision.
C. The applicant/developer shall bear the full cost of designing and
installing these improvements, and is not entitled to any
reimbursement from the City.
9. Execute a Standard Agreement for the Construction of Public
Improvements, posting of securities (performance, payment, warranty, and
monumentation) and submittal of insurance certificates for liability and
workmen's compensation coverage.
10. Record a Private Road Construction and Maintenance Agreement for the
private roads within the subdivision. This agreement shall be reviewed and
approved as to form and content by the City Attorney prior to recordation. If
there is an instrument for Covenants, Conditions, and Restrictions (CC&R),
which addresses construction and maintenance of the private roads or
accesses in the subdivision, said CC&R shall be reviewed and approved by
the City prior to recordation.
11. Record a maintenance agreement for maintenance of the Best
Management Practices devices as required by the Standard Urban
Stormwater Mitigation Plan (SUSMP) ordinance.
12. Maintenance obligations shall be disclosed to potential buyers and recorded
at the County of San Diego Recorder's Office at the applicant's expense.
The form of disclosure shall be submitted with the final map and shall be
subject to the review and approval of the City prior to recordation of the final
map.
13. Post a cash deposit with the City, in an amount equivalent to $100.00 per
sheet of the final map, for the photo Mylar reproduction of the recorded
map. If the applicant/developer provides the City with the photo Mylar copy
of the recorded final map within three months from recordation or prior to
Building Permit issuance to the first parcel, whichever comes first, said cash
deposit shall thereafter be refunded to the depositor. Otherwise, it shall be
used by the City to pay for the reproduction of a photo Mylar copy.
14. Cause the dedication of general utility easement to the City for public water
and sewer lines outside the limits of the subdivision, if needed, to serve the
subdivision. The width of the easement shall be a minimum of 20.00 feet
for each utility line.
14 of 27 April 2, 2019, Item #3-J
Resolution No. P-07-08
Page 8
H. Prior to issuance of a Grading Permit, unless other timing is indicated, the
applicant/subdivider shall comply with the following conditions:
1. A grading plan for the project shall be prepared on mylar at a scale of
1" = 20', and submitted to the Development Services Department -
Engineering Division for review and approval. The grading plan shall be
prepared by a State Licensed civil engineer. As a minimum, the grading
plan shall show the following:
a. All new slopes with a maximum 2:1 (horizontal to vertical) slope.
Tops and toes of graded slopes shall be shown with a minimum of a
five-foot setback from open space areas and property lines.
Buildings shall be located at least five feet from tops and toes of
slopes, unless waived by the Planning Division and/or Engineering
Division prior to issuance of a Grading Permit.
b. Driveways, in compliance with the specifications provided in Section
17.08.170D of the Poway Municipal Code, and including minimum
structural sections together with their elevations and grades.
C. A separate erosion control plan for prevention of sediment run-off
during construction.
d. All utilities (proposed and existing), together with their appurtenances
and associated easements. Encroachments are not permitted upon
any easement without an approved Encroachment Agreement/
Permit.
e. Location of all utility boxes, clearly identified in coordination with the
respective utility companies, and approved by the City prior to any
installation work. Any utility improvements that are greater than 36
inches in height will be required to be screened by landscaping. All
utility boxes shall be shown on the landscape and improvement
plans.
2. A soils/geological report shall be prepared by an engineer licensed by the
State of California to perform such work, and shall be submitted with the
grading plan.
3. A drainage study using the 100 -year storm frequency criteria shall be
submitted with the grading plan. The drainage system shall be capable of
handling and disposing all surface water within the project site and all
surface water flowing onto the project site from adjacent lands. The
drainage system shall cause post -development flow volumes from the
project site to be equal or less than pre -development flow volumes. Said
system shall include all easements required to properly handle the
drainage.
15 of 27 April 2, 2019, Item # l E
Resolution No. P-07-08
Page 9
4. The grading plan shall demonstrate the subdivision complies with the City's
Standard Urban Stormwater Mitigation Plan (SUSMP) Ordinance.
5. Documentation shall be submitted confirming that existing facility systems
water, sewer, storm drain) that will be utilized are of adequate capacity to
accommodate the proposed development.
6. Pad elevations shown on the grading plan shall not increase by more than
two feet in height from the elevations shown on the approved tentative map,
unless otherwise approved by the City Council.
7. The property owner shall file with the State Regional Water Quality Control
Board a Notice of Intent (NO1) of coverage under the statewide General
Permit that covers storm water discharges. Proof of filing of the NOI and an
assigned Waste Discharge Identification Number shall be submitted to the
Development Services Department - Engineering Division prior to issuance
of a Grading or Building Permit. Applications may be obtained by
contacting:
California Regional Water Quality Control Board
San Diego Region
9174 Sky Park Court, Suite 100
San Diego, CA 92123
858) 467-2952
8. The property owner shall prepare a Storm Water Pollution Prevention Plan
SWPPP) that effectively addresses the elimination of non -storm runoff into
the storm drain system. The SWPPP shall include, but not limited to, an
effective method of hillside erosion and sediment control; a de -silting basin
with a capacity of 3,600 cubic feet of storage per acre drained, or designed
to remove fine silt for a 10 -year, 6 -hour storm event; a material storage site;
measures to protect construction material from being exposed to storm
water control; and other means of Best Management Practices to effectively
eliminate pollutants from entering the storm drain system. The engineer
shall certify the SWPPP prior to issuance of the Grading Permit, and
provide the City with two copies of the certified SWPPP.
9. Grading securities in the form of a performance bond and cash deposit, or a
letter of credit shall be posted with the City. A minimum $2,000 cash
security per lot is required.
10. The applicant shall pay all applicable engineering, plan checking, permit,
and inspection fees.
11. The applicant shall submit a request for and hold a pre -construction
meeting with a City Engineering Inspector. The applicant shall be
responsible that necessary individuals, such as, but not limited to,
16 of 27 April 2, 2019, Item #3.1
Resolution No. P-07-08
Page 10
contractors, subcontractors, project civil engineer and project soils engineer
must attend the pre -construction meeting.
12. Construction staking is to be inspected by the Engineering Inspector prior to
any clearing, grubbing, or grading. As a minimum, all protected areas as
shown on the project plans are to be staked by a licensed surveyor and
delineated with lathe and ribbon. A written certification from the engineer of
work or a licensed surveyor shall be provided to the Engineering Inspector
stating that all protected areas are staked in accordance with the approved
project plans.
13. Erosion control, including de -silting basins, shall be installed and
maintained from throughout construction of the project. An erosion control
plan shall be prepared by the project civil engineer and shall be submitted
as part of the grading plan. The applicant/developer shall make provisions
to ensure proper maintenance of all erosion control devices.
14. Non -supervised or non -engineered fill is not allowed. Rock disposal areas
shall be graded in compliance with City approved soils recommendations
and the approved grading plans.
15. Prior to rock blasting, a pre -blast survey of the surrounding properties shall
be conducted to the satisfaction of the Director of Development Services,
and a Blasting Permit shall be obtained from the Engineering Division.
Seismic recordings shall be taken for all blasting. Blasting shall occur only
at locations and levels approved by the Director of Development Services.
Planning)
16. Prior to the issuance of a Grading Permit or an Administrative Clearing
Permit or Final Map approval, whichever occurs first, the applicant shall
mitigate the on-site, permanent removal of 8.3 acres of Coastal Sage Scrub
CSS) at the rate of 2:1, and 1. 1 acres of Non—Native Grasslands at the
rate of 1:1 for an overall requirement of 17.7 acres. A Biological
Conservation Easement (BCE) will be placed over 17.7 acres of on-site
CSS as required mitigation. The BCE shall be approved by the City
Attorney, and shall be notarized and recorded with the County of San Diego
at the cost of the applicant. In compliance with the HCP, the City shall re-
zone the mitigation land to Open Space -Resources Management to ensure
its permanent preservation.
17. Prior to the removal of any trees during the recognized nesting season for
raptors, a qualified professional shall evaluate the subject tree(s) for a
raptor nest(s) and report the findings in writing to the City. Should a nest or
nests be located in any tree, removal shall be delayed until such time as the
nest or nests have been abandoned.
17 of 27 April 2, 2019, Item # 3. 1
Resolution No. P-07-08
Page 11
18. The Biological Conservation Easement and Open Space Easement shall be
shown on the Final Map.
19. Prior to the issuance of a Grading Permit, the applicant shall provide a
landscape plan for all slopes and fire management zones. The appropriate
landscaping plan check fee shall be submitted with the plans (the fee is
based on the estimated cost of the improvements). If construction of the
does not commence within 90 days of completion of the grading of any of
the lots, all manufactured slopes greater than a 5:1 slope shall be
hydroseeded. Prior to applying the hydroseed, the applicant shall submit a
landscape plan showing the type of hydroseed mix and method of irrigation
for approval by the Director of Development Services.
20. In accordance with Condition H of the PSHCP Incidental Take Permit, a
take of active California Gnatcatcher nests, which includes harassment of
the bird due to grading noise and vibrations from February 15 through July
1, is not permitted. Therefore, any grading or clearing during this timeframe
will only be permitted subject to the following conditions having been met to
the satisfaction of the Director. The applicant is hereby advised that, during
grading, if active nests are found within 500 feet of the grading, the grading
activity shall be stopped until such time as mitigation measures to the
satisfaction of the City and the United States Fish and Wildlife Service
USFWS) are implemented. There is no guarantee that grading will be
allowed to resume.
21. Before issuance of a Clearing/Grading Permit, if grading or clearing is to
occur between February 15 and July 1, the applicant shall provide to the
Planning Division a letter from a qualified biologist retained by the applicant,
with a scope of work for the CSS habitat and Gnatcatcher Survey and a
map showing all habitat areas including all CSS habitat within 500 feet of
the area to be graded. The biologist shall contact the USFWS to determine
the appropriate survey methodology. The purpose of the survey is to
determine if any active Gnatcatcher nests are located in the area to be
cleared or graded, or if CSS habitat is within 500 feet of such area. To be
considered qualified the biologist must provide the City with a copy of a
valid Gnatcatcher Recovery Permit from the USFWS. The scope of work
shall explain the survey methodology for the biological survey and the
proposed Gnatcatcher nest monitoring activities during the clearing/grading
operation.
22. Should the survey show, to the satisfaction of the Director of Development
Services, that active Gnatcatcher nests are not present within the area to
be graded or cleared, or within 500 feet of said area, approval may be
granted to commence grading/clearing within the Gnatcatcher nesting
season between February 15 and July 1, with appropriate monitoring during
that time.
18 of 27 April 2, 2019, Item #-22-.-1
Resolution No. P-07-08
Page 12
23. Between February 15 and July 1 if Gnatcatchers are present within the area
to be graded/cleared, or within 500 feet of that area, no grading will be
allowed unless appropriate mitigation is completed.
24. Permanent signage and fencing shall be placed along the open space
boundary. The signage shall be placed prior to project occupancy. The
signage will be installed at intervals of 100 feet. The signs must be
corrosion resistant and a minimum size of 9 inches by 12 inches. The
signage will be attached to posts at six feet in height from the ground
surface. The sign must state the following:
This is a Sensitive Natural Resource
Protection Area
PLEASE DO NOT DISTURB
Removal of vegetation is a violation of law,
and is punishable, under Section 16.56 of
the Poway Municipal Code.
25. Evidence shall be submitted to the Director of Development Services that
the permanent fencing and signs have been placed to protect all Open
Space Easements. Evidence shall include photographs of a sign placed
on a post, and a signed statement from a California Registered Engineer or
licensed surveyor, that permanent signs have been placed on the Open
Space Easement boundaries in accordance with the requirements of this
condition.
26. All utility poles located on-site and in the adjoining rights-of-way shall be
shown on the grading plan. Existing utility poles, if any, shall be removed
and utility lines placed underground.
27. All manufactured slopes of 5:1 or greater, shall be planted and irrigated to
the satisfaction of the Director of Development Services. A landscaping
plan shall be submitted to the Planning Division for review and approval
pursuant to the City of Poway Guide to Landscape Requirements.
28. All retaining walls shall be shown on the grading plan and shall be a
maximum of six feet in height. A second six-foot wall is permitted with a
five-foot minimum interior separation between the walls.
29. Prior to issuance of an Administrative Clearing Permit, Grading Permit or
recordation of the final map, whichever occurs first, the applicant shall
obtain approval from the Director of Development Services and the Fire
Marshal of a Fire Fuel Management Plan prepared pursuant to the City of
Poway Guide to Landscape Requirements. Fire Fuel Management Zones
shall be shown on a non -title sheet of each Final Map with a note
discussing the requirements and responsibility of property owners for the
maintenance of these areas as required by the approved Fire Fuel
19 of 27 April 2, 2019, Item #3—. 1
Resolution No. P-07-08
Page 13
Management Plan. The appropriate landscaping plan check fee shall be
submitted with the plans (the fee is based on the estimated cost of the
improvements).
30. All outdoor lighting associated with the project shall be directed away from
open space preserve areas.
31. With respect to cultural resources, the project has the potential to impact
undiscovered cultural resources. A mitigation measure has been proposed
to reduce this impact to below a level of significance.
Prior to the issuance of a Grading Permit, the project applicant shall
contract with a certified archaeologist and a Tribal Indian
representative to monitor trenching, excavation, and grading
activities. The monitor shall have recent experience in construction
monitoring, and shall be on-site full time for all initial grading
activities that disturb the upper soil layer. The monitor shall have the
authority to halt and/or redirect work in the case of a cultural
resource discovery. If cultural resources are discovered as a result
of monitoring, then testing/evaluation will be required and, If
necessary, data recovery will be conducted. Any materials collected
will require curation at a qualified institution. At the end of the
monitoring period, the archaeological monitors shall submit a letter
report to the Director of Development Services detailing the duration
and results of the monitoring. Contact the Development Services
Department regarding contact information for the Tribal Indian
monitor.
Compliance with the following conditions is required prior to issuance of Building
Permits:
Engineering)
1. The final map for Tentative Tract Map 06-02 shall be recorded in the office
of the San Diego County Recorder.
2. The project site shall be developed in accordance with the approved site
plans on file in the Development Services Department and the conditions
contained herein. Grading of the project shall be in substantial
conformance with the approved development plan and in accordance with
the Uniform Building Code, City Grading Ordinance, City Storm Water
Management and Discharge Control Ordinance, and Drainage and
Watercourses Ordinance, the approved grading plan, the approved soils
report, and grading practices acceptable to the City.
3. Rough grading of the lots is to be completed and meet the approval of the
City Inspector and shall include submittal of the following:
20 of 27 April 2, 2019, Item #3J
Resolution No. P-07-08
Page 14
a. A certification of line and grade for each lot, prepared by the
engineer of work.
b. A final soil compaction report for each lot for review and approval by
the City.
4. The fire hydrants shall be installed at locations determined by the City Fire
Marshal. Prior to delivery of combustible building materials, on-site water
and sewer systems shall satisfactorily pass all required tests.
5. The developer is advised that, pursuant to PMC Sections 17.26.100
through 17.26.300, single-family residential development shall provide that
fifteen percent of the units created shall be affordable to low-income
households. The developer of for -sale housing may, in lieu of providing
required inclusionary housing on-site or off-site, pay a fee to the City in
accordance with the provisions of the referenced Section.
6. A Right -of -Way Permit shall be obtained from the Engineering Division of
the Development Services Department for any work to be done in public
street rights-of-way or City -held easements.
Payment of development fees to the City, unless other payee is indicated.
The following fees are for each lot, and subject to change without further
notice. The actual amounts to be paid shall be those in effect at the time of
payment
Water per lot:
Meter
Expansion Fee
Service Line
SDCWA Capacity`*
SDCWA Water Treatment Capacity**
inch 1 inch
130 270
3,710 6,678*
1,430 1,430
4,154 6,646
159 255
If a 1" meter is required due to fire sprinklers, then 3/+" expansion fees will
apply.
To be paid by separate check, payable to the SDCWA.
Sewer per lot:
Connection fee = $1,678.00*
Indirect Benefit fee = $ 500.00
Cleanout fee = $ 50.00 per cleanout
Cleanout inspection fee = $ 25.00 per cleanout
Represents 50% payment
reservation of sewer LOA
map approval.
assuming that 20% payment was made at
and 30% payment made within 30 days after
21 of 27 April 2, 2019, Item #,11
11
Resolution No. P-07-08
Page 15
Traffic mitigation fee per lot = $ 990.00
Drainage fee per lot = NA
Park fee per lot = $2,720.00
7. The property owner shall remit payment to the City of the benefit charge as
identified in the Reimbursement Agreement for the construction of the
existing road, sewer, water, and drainage improvements. As per the terms
of the Reimbursement Agreement, a five (5) percent administrative fee, and
an additional five (5) percent interest compounded annually from the date of
the execution of the agreement, shall also be paid with this amount.
Fire)
8. The following shall be completed to the satisfaction of the Director of Safety
Services:
Fire Department
provided to the
construction an(
completed.
access for use of fire fighting equipment shall be
immediate job construction site at the start of
maintained at all times until construction is
Prior to delivery of combustible building materials on-site, water and
sewer systems shall satisfactorily pass all required tests and be
connected to the public water and sewer systems. In addition, the
first lift of asphalt paving shall be in place to provide adequate,
permanent access for emergency vehicles.
C. All lots shall be serviced with one -inch water meters and a one -inch
lateral.
Compliance with the following conditions is required prior to issuance of a
Certificate of Occupancy:
Engineering)
1. Street, sewer and water improvements, driveways, drainage facilities, slope
landscaping and protection measures, and utilities shall be constructed,
completed, and inspected by the Engineering Inspector. The driveways
shall be constructed in accordance with Poway Municipal Code, Section
17.08.170D, and its structural section shall be shown on the grading plan.
2. The final pavement surface shall be free of gouges, patches, diesel spills,
or other defects to the satisfaction of the City Engineer prior to issuance of
an Occupancy Permit, prior to acknowledgement of completion, and prior to
final acceptance of subdivision improvements.
22 of 27 April 2, 2019, Item #,Ll
Resolution No. P-07-08
Page 16
3. An adequate drainage system around each building pad capable of
handling and disposing all surface water shall be provided to the
satisfaction of the Engineering Inspector,
4. All damaged off-site and on-site public works facilities shall be repaired and
replaced prior to exoneration of securities, to the satisfaction of the Director
of Development Services.
5. The developer shall repair, to the satisfaction of the City Engineer, any and
all damages to the public and private road improvements caused by
construction activity from this project.
Record drawings for the grading plans, signed by the engineer of work,
shall be submitted to Development Services prior to a request of
occupancy, per Section 16.52.130B of the Grading Ordinance. Record
drawings shall be submitted in a manner to allow the City adequate time for
review and approval prior to issuance of occupancy and release of grading
securities.
Planning)
7. Any oak trees adjacent to Old Coach Road that are removed in association
with the construction of the private road shall be relocated or replaced with
a liked -sized oak tree elsewhere along the street frontage, subject to
Director of Development Services approval.
8. Install permanent signs and fencing per TTM 06-02 condition H 24, as may
be deemed necessary by the Director of Development Services, to
delineate the limits of the Biological Conservation Easement(s) present on
the site.
9. A property owners association shall be formed and maintained for the life of
the project to ensure property maintenance. Prior to final map approval,
the applicant shall submit to the City for review and approval a copy of the
project CC&Rs. The CC&Rs shall at a minimum identify property
improvement maintenance responsibilities. Alternatively, the applicant
may join the property to the existing Old Coach Golf Estates HOA.
10. The applicant shall annex the subdivision into LMD 86-1A for maintenance
of existing landscape improvements along Espola Road.
11. Fire hydrants shall be installed in the approximate locations shown on the
Tentative Tract Map to the satisfaction of the City Fire Marshal.
Section 6: The approval of Tentative Tract Map 06-02 expires on February 6, 2009. at
5:00 p.m. The final map conforming to this conditionally approved Tentative Tract Map
shall be filed with the City so that the City may approve the map before this approval
expires, unless at least 90 days prior to the expiration of the Tentative Tract Map a
23 of 27 April 2, 2019, Item #3, (
Resolution No. P-07-08
Page 17
request for a time extension is submitted to the Development Services Department and a
time extension is subsequently granted by the City Council.
Section 7: Pursuant to Government Code Section 66020, the 90 -day approval period
in which the applicant may protest the imposition of any fees, dedications, reservations,
or exactions imposed pursuant to this approval shall begin on February 6, 2007.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
State of California, at a regular meeting this 13th day of March, 2007.
ATTEST:
L. DiAne Shea, City Clerk
STATE OF CALIFORNIA )
as.
COUNTY OF SAN DIEGO)
I, L. Diane Shea, City Clerk of the City of Poway, do hereby certify that the
foregoing Resolution No. P-07-08, was duly adopted by the City Council at a meeting of
said City Council held on the 13th day of March, 2007, and that it was so adopted by the
following vote:
AYES: BOYACK, HIGGINSON, REXFORD, CAFAGNA
NOES: EMERY
ABSENT: NONE
DISQUALIFIED: NONE
X— V,(,
Di ne Shea, City Clerk
City of Poway
24 of 27 April 2, 2019, Item #3.1
Resolution No. P-07-08
Page 18
MITIGATION MONITORING PROGRAM
GPA 06-01; ZC 06-01; SPA 89-01A; AND TTM 06.02
Section 21081.6 of the Public Resources Code requires that public agencies "adopt a
reporting or monitoring program for the changes which it has adopted or made a
condition of project approval in order to mitigate or avoid significant effects on the
environment. The reporting or monitoring program shall be designated to ensure
compliance during project implementation". This Mitigation Monitoring Program has been
prepared in accordance with Section 21081.6 of the Public Resources Code.
Non-compliance with any of these conditions, as identified by City staff or a designated
monitor, shall result in issuance of a cease and desist order for all construction activities.
The order shall remain in effect until compliance is assured. Non-compliance situations,
which may occur subsequent to project construction, will be addressed on a case-by-
case basis and may be subject to penalties according to the City of Poway Municipal
Code. When phasing of development has been established, it may be necessary for this
Monitorina Prooram to be amended. with Citv annroval.
Topic Miti ation Measure Timing Res itv
Biology Prior to the issuance of a Grading Permit or an Prior to the issuance Applicant
Administrative Clearing Permit, the applicant shall of a Grading Permit or
submit to the City for review and approval a the approval of Final
Habitat Restoration and Monitoring Plan, and Map, whichever
applicable review fees. These areas shall be occurs first (for
placed into an Open Space Easement along with submittal
other portions of the lots that are outside the of plan)
project development area and outside of any
Biological Conservation Easement area. The
Open Space Easement shall be approved by the
Director of Development Services, and shall be
notarized and recorded with the County of San
Diego at the cost of the applicant.
Install permanent signs and fencing per TTM 06- Prior to starting Applicant
02 condition H 24 as deemed necessary by the grading
Director of Development Services, to delineate the
limits of the Biological Conservation Easement(s)
present on the site.
The limits of approved habitat removal shall be Prior to the issuance Applicant
clearly shown on the grading plan and staked in of a Grading Permit or
the field prior to commencing grading. of Final Map approval,
whichever occurs first
Prior to the issuance of a Grading Permit or an Prior to the issuance Applicant
Administrative Clearing Permit or Final Map of a Grading Permit or
approval, whichever occurs first, the applicant the approval of Final
shall mitigate the on-site, permanent removal of Map, whichever
8. 3 acres of Coastal Sage Scrub (CSS) at the occurs first
rate of 2:1, and 1.1 acres of Non—native
25 of 27 April 2, 2019, Item #3.
Grasslands at the rate of 1:1 for an overall
requirement of 17.7 acres. A Biological
Conservation Easement (BCE) will be placed
over 17.7 acres of on-site CSS as required
mitigation. The BCE shall be approved by the
Director of Development Services, and shall be
notarized and recorded with the County of San
Diego at the cost of the applicant. In compliance
with the HCP, the City shall re -zone the
mitigation land to Open Space -Resources
Management to ensure its permanent
preservation. An Open Space Easement must
also be recorded on the remaining undeveloped
portions of the property.
Prior to the removal of any tree during the
recognized nesting season for raptors, a qualified
professional shall evaluate the subject tree(s) for a
raptor nest and report the findings in writing to the
City. Should a nest or nests be located in any
tree, removal shall be delayed until such time as
the nest or nests have been abandoned.
In accordance with Condition H of the PSHCP
Incidental Take Permit, a take of active California
Gnatcatcher nests, which includes harassment of
the bird due to grading noise and vibrations from
February 15 through July 1, is not permitted.
Therefore, any grading or clearing during this
timeframe will only be permitted subject to the
following conditions having been met to the
satisfaction of the Director. The applicant is
hereby advised that, during grading, if active nests
are found within 500 feet of the grading, the
grading activity shall be stopped until such time as
mitigation measures to the satisfaction of the City
and the United States Fish and Wildlife Service
USFWS) are implemented. There is no
guarantee that grading will be allowed to resume.
Before issuance of a Clearing/Grading Permit, if
grading or clearing is to occur between February
15 and July 1, the applicant shall provide to the
Planning Division a letter from a qualified biologist
retained by the applicant, with a scope of work for
the CSS habitat and Gnatcatcher Survey and a
map showing all habitat areas including all CSS
habitat within 500 feet of the area to be graded.
The biologist shall contact the USFWS to
determine the appropriate survey methodology.
The purpose of the survey is to determine if anv
Resolution No. P-07-08
Page 19
Prior to the removal
any tree
Prior to the issuance
of a Grading Permit or
the approval of Final
Map, whichever
occurs first
Prior to and during
grading
Applicant
Applicant
Applicant
26 of 27 April 2, 2019, Item #,J
active Gnatcatcher nests are located in the area to
be cleared or graded, or if CSS habitat is within
500 feet of such area. To be considered qualified,
the biologist must provide the City with a copy of a
valid Gnatcatcher Recovery Permit from the
USFWS. The scope of work shall explain the
survey methodology for the biological survey and
the proposed Gnatcatcher nest monitoring
activities during the Gearing/grading operation.
Should the survey show, to the satisfaction of the
Director of Development Services, that active
Gnatcatcher nests are not present within the area
to be graded or cleared, or within 500 feet of said
area, approval may be granted to commence
grading/clearing within the Gnatcatcher nesting
season between February 15 and July 1 with
appropriate monitoring during that time. If
Gnatcatchers are present within the area to be
graded/cleared, or within 500 feet of that area, no
grading will be allowed unless appropriate
mitigation is completed.
A qualified biologist is required to monitor
vegetation clearing and grading when within
sensitive biological resources. The biologist
should also verify the location of construction
staking
Cultural
Prior to the issuance of a Grading Permit, the
Resource project applicant shall contract with a certified
archaeologist and a Tribal Indian representative to
monitor trenching, excavation, and grading
activities. The monitor shall have recent
experience in construction monitoring, and shall be
on-site full time for all initial grading activities that
disturb the upper soil layer. The monitor shall have
the authority to halt and/or redirect work in the
case of a cultural resource discovery. If cultural
resources are discovered as a result of monitoring,
then testing/evaluation will be required and, if
necessary, data recovery will be conducted. Any
materials collected will require curation at a
qualified institution. At the end of the monitoring
period, the archaeological monitors shall submit a
letter report to the Director of Development
Services detailing the duration and results of the
monitoring. Contact the Development Services
Department regarding contact information for the
Resolution No. P-07-08
Page 20
Prior to and during Applicant
grading
27 of 27 April 2, 2019, Item #j__J
G`,.
OF POWgY
City of Poway
COUNCIL AGENDA REPORT
QpY IN THE CEJ
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City Counci
FROM: Robert Manis, Director of Development Services .
CONTACT: Jeff Beers, Special Projects Engineer
858) 668-4624 or Ibeers@poway.orq
APPROVED
APPROVED AS AMENDED
SEE MINUTES)
DENIED
REMOVED
CONTINUED
RESOLUTION NO.
SUBJECT: Resolution of the City Council of the City of Poway, California, Adopting a
list of projects for Fiscal Year 2019-2020 funded by SB 1: The Road Repair
and Accountability Act of 2017
Summary:
Prior to receiving Road Maintenance and Rehabilitation Account (RMRA) funds, a list of projects
proposed to be funded with these funds must be provided to the California Transportation
Commission. All projects proposed to receive funding must be adopted by resolution approved
by the City Council. The attached resolution (Attachment A) identifies the FY 2019-2020 Street
Maintenance Project as the project on which RMRA funds are to be used.
Recommended Action:
It is recommended that the City Council adopt the attached resolution identifying FY 2019-2020
Street Maintenance Project as the project on which RMRA funds are to be used.
Discussion:
On April 28, 2017 the Governor signed Senate Bill SB 1, which is known as the Road Repair and
Accountability Act of 2017, to provide funding for basic road maintenance, rehabilitation and
critical safety needs on both the state highway and local streets and road systems. A portion of
this funding known as the Road Maintenance and Rehabilitation Account is apportioned annually
to cities and counties.
Prior to receiving an apportionment of RMRA funds from the Controller in a fiscal year, the bill
requires that agencies provide a list of projects proposed to be funded with these funds to the
California Transportation Commission. All projects proposed to receive funding must be adopted
by resolution approved by the City Council. A city receiving an apportionment of RMRA funds is
also required to sustain a maintenance of effort by spending at least the annual average of its
general fund expenditures during the 2009-10, 2010-11, and 2011-12 fiscal years for street, road,
and highway purposes from the city's general fund.
The attached resolution identifies the FY 2019-2020 Street Maintenance Project as the project on
which RMRA funds are to be used. The resolution also provides specific project details as
required by the bill.
1 of 4 April 2, 2019, Item #dz
Resolution Adopting a list of projects for Fiscal Year 2019-2020 funded by SB 1: The Road Repair
and Accountability Act of 2017
April 2, 2019
Page 2
Environmental Review:
This action is not a project pursuant to the 2016 California Environmental Quality Act (CEQA)
Guidelines. If approved for RMRA funding, the FY 2019-2020 Street Maintenance Project will be
further reviewed and evaluated as a project pursuant to CEQA Guidelines.
Fiscal Impact:
None with this action. Based on estimates provided by CaliforniaCityFinance.com, the City of
Poway is projected to receive approximately $831,008 in RMRA funds in FY 2019-2020.
Appropriation of these funds will occur during the adoption of the 2019-2020 City Budget.
Public Notification:
None.
Attachments:
A. Resolution
Reviewed/Approved By:
Wendy Kaserman
Assistant City Manager
2of4
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
400q
Tina M. White
City Manager
April 2, 2019, Item #3. 2
RESOLUTION NO. 19-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, ADOPTING A LIST OF PROJECTS
FOR FISCAL YEAR 2019-20 FUNDED BY SB 1: THE ROAD
REPAIR AND ACCOUNTABILITY ACT OF 2017
WHEREAS, Senate Bill 1 (SB 1), the Road Repair and Accountability Act of 2017 (Chapter 5,
Statutes of 2017) was passed by the Legislature and Signed into law by the Governor in April 2017 in
order to address the significant multi -modal transportation funding shortfalls statewide;
WHEREAS, SB 1 includes accountability and transparency provisions that will ensure the
residents of our City are aware of the projects proposed for funding in our community and which
projects have been completed each fiscal year;
WHEREAS, the City must adopt a list of all projects proposed to receive funding from the Road
Maintenance and Rehabilitation Account (RMRA), created by SB 1 by resolution, which must include a
description and the location of each proposed project, a proposed schedule for the project's
completion, and the estimated useful life of the improvement;
WHEREAS, the City will receive an estimated $831,008 in RMRA funding in Fiscal Year2019-
20 from SB 1;
WHEREAS, this is the third year in which the City is receiving SB 1 funding and will enable the
City to continue essential road maintenance and rehabilitation projects, safety improvements,
repairing and replacing aging bridges, and increasing access and mobility options for the traveling
public that would not have otherwise been possible without SB 1;
WHEREAS, the City maintains robust communication with the public and includes public input
in the development of our community's transportation priorities and project list;
WHEREAS, the City used a Pavement Management System to develop the SB 1 project list to
ensure revenues are being used on the most high-priority and cost-effective projects that also meet the
community's priorities for transportation investment;
WHEREAS, the funding from SB 1 will help the City maintain and rehabilitate 86 streets totaling
approximately 20 center line miles, and approximately five million square feet of road surface,
throughout the City this year and many similar projects into the future;
WHEREAS, the 2018 California Statewide Local Streets and Roads Needs Assessment
found that the City's streets and roads are in good condition with a current PCI (Pavement Condition
Index) of 81 and this revenue will help maintain the overall quality of our road system and over the
next decade will maintain streets and roads in a good condition; and
WHEREAS, the SB 1 project list and overall investment in our local streets and roads
infrastructure with a focus on basic maintenance and safety, investing in complete streets
infrastructure, and using cutting-edge technology, materials and practices, will have significant positive
co -benefits statewide.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows:
Section 1: The City Council finds that the adoption of this Resolution is exempt
from the requirements of the California Environmental Quality Act (CEQA) as this action is nota project
pursuant to the 2016 California Environmental Quality Act (CEQA) Guidelines.
3 of 4 ATTACHMENT A April 2, 2019, Item #3, 2-
Resolution No. 19 -
Page 2
Section 2: The foregoing recitals are true and correct.
Section 3: The following list of proposed projects will be funded in -part or solely with
fiscal year 2019-2020 Road Maintenance and Rehabilitation Account revenues:
Project: 2019-2020 Street Maintenance Project
Description: Annual Street Maintenance project which includes the slurry
sealing of residential, collector and arterial streets.
Location: The 2019-2020 Street Maintenance Project encompasses
streets within the street maintenance zone 3, that is generally
south of Twin Peaks Road, east of and including Pomerado
Road, north of Poway Road and west of Community Road.
Estimated Useful Life: 8 years
Project Schedule: July 2019 —August 2019
Section 4: The City has no previously proposed and adopted projects that will utilize
fiscal year 2019-2020 Road Maintenance and Rehabilitation Account revenues in their delivery.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway, California, at a
regular meeting, this 2nd day of April 2019.
Steve Vaus, Mayor
ATTEST:
Faviola Medina, CMC, City Clerk
STATE OF CALIFORNIA )
SS
COUNTY OF SAN DIEGO )
I, Faviola Medina, City Clerk, of the City of Poway, California, do hereby certify under penalty
of perjury that the foregoing Resolution No. 19-*** was duly adopted bythe City Council at a meeting
of said City Council held on the 2nd day of April 2019, and that it was so adopted by the following
vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
4 of 4
Faviola Medina City Clerk
City of Poway
April 2, 2019, Item #i_2
1 of 119 April 2, 2019, Item # 4.1
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Poway Housing Authority
13325 Civic Center Drive
Poway, CA 92064
Attention: Executive Director
NO FEE FOR RECORDING PURSUANT
TO GOVERNMENT CODE
SECTIONS 6103 AND 27383
APN: 317-152-14-00
(Space above this line for Recorder's Use)
THIRD AMENDMENT TO LAND DISPOSITION, DEVELOPMENT
AND LOAN AGREEMENT
(Villa De Vida Poway)
This Third Amendment to Land Disposition, Development and Loan Agreement (the "Third
Amendment") is entered into as of April 2, 2019, by and among the Poway Housing Authority, a
public body, corporate and politic (the "Authority"), and Villa de Vida Poway, L.P., a California
limited partnership (the "Developer") with reference to the following facts:
RECITALS
A.Capitalized terms used in this Third Amendment, but not defined, shall have the
meaning set forth in the Original DDA (as defined herein below).
B.The Authority and the Developer entered into that certain Land Disposition,
Development and Loan Agreement dated as of October 4, 2016 and recorded in the Official
Records of San Diego County, California (the "Official Records") on April 10, 2017 as
Document No. 2017-016002, as amended by that certain First Amendment to the Land
Disposition, Development and Loan Agreement dated as of June 20, 2017 and recorded in the
Official Records on July 10, 2017 as Document No. 2017-03098, as further amended by that
certain Second Amendment to the Land Disposition, Development and Loan Agreement dated as
of February 6, 2018 and recorded in the Official Records on March 22, 2018 as Document No.
2018-0113457, as such may be further amended from time to time (collectively, the "Original
DDA").
C.The purpose of this Third Amendment, authorized under Section 10.18 of the
Original DDA, is to: (1) incorporate comments provided by the Investor to protect the Investor's
interest and approved Lender for the conventional loan and necessary to close the transaction; (2)
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revise the terms for the use of the Supportive Services Reserve (as defined herein below) and the
conditions for disbursements thereunder; and (3) to make necessary conforming amendments.
NOW, THEREFORE, the Authority and the Developer, agree as follows:
ARTICLE 1.
AMENDMENTS TO ORIGINAL DDA
Section 1.1 Amendment to Section 1.1(c)(9). Section 1.1(c)(9) of the Original DDA is
hereby deleted in its entirety and replaced and amended as follows:
"(9) Cash deposited into the "Operating Reserve" to replenish the Operating
Reserve (initially capitalized by the Developer in the approximate amount of Two
Hundred Fifty-Five Thousand Four Hundred Forty Dollars ($255,440), the total sum
on deposit in the Operating Reserve at any one time shall be capped at six (6) months
of gross rent from the Development, as such rent may vary from time to time; or such
other amount approved by the Authority as part of the approved Financing Plan and
annual operating budgets)."
Section 1.2 Amendment to Section 1.1(c)(10). Section 1.1(c)(10) of the Original
DDA is hereby deleted in its entirety and replaced and amended as follows:
"(10) Asset management fee and, for the first fifteen (15) years of the Term,
including the limited partner partnership management fee in the amount of Five
Thousand Dollars ($5,000) per year which amount may increase annually by up to
three percent (3%) and a general partner partnership management fee in the amount
of Twelve Thousand Five Hundred Dollars ($12,500) per year which amount may
increase annually by up to three percent (3%)."
Section 1.3 Amendment to Section 1.1(d). Section 1.1(d) of the Original DDA is
hereby deleted in its entirety and replaced and amended as follows:
"(d) "Approved Financing" means the loans, grants, and other financing to be
secured by the Developer, and approved by the Authority for the purpose of financing
the costs of the Development which shall be consistent with the approved Financing
Plan, and is anticipated to include:
(1)A construction loan from Wells Fargo Bank, National Association in the
approximate amount of Nineteen Million Five Hundred Six Thousand Four Hundred
Eighty-Seven Dollars ($19,506,487) (the "Bank Loan"). The Bank Loan is intended
to be paid down at the close of permanent financing to the approximate amount of
Two Million Eight Hundred Twenty-Two Thousand Dollars ($2,822,000);
(2)Low Income Housing Tax Credit investor limited partner capital
contribution in the approximate amount of Nineteen Million Eight Hundred Twenty-
Nine Thousand Nineteen Dollars ($19,829,019) (the "Tax Credit Investor Equity");
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(3)A loan from the County of San Diego in the approximate amount of Three
Million Four Hundred Forty-Five Thousand Dollars ($3,445,000) (the "County
Loan");
(4) Subject to the terms of Section 6.9(c) below, a loan from Villa de Vida, Inc.,
used to capitalize a resident services reserve in the amount not less than Two Million
Five Hundred Thousand Dollars ($2,500,000) (the "Supportive Services Reserve")."
Section 1.4 Amendment to Section 1.1(qq). Section 1.1(qq) of the Original DDA is
hereby deleted in its entirety and replaced and amended as follows:
"(qq) "County Loan" means the loan from the County of San Diego as further
described in Section 1.1(d)(3) above."
Section 1.5 Amendment to Section 1.1(tt). Section 1.1(tt) of the Original DDA is
hereby deleted in its entirety and replaced and amended as follows:
"(tt) "Investor" means Wells Fargo Affordable Housing Community
Development Corporation, its successors and/or assigns, as the Investor of the
Developer."
Section 1.6 Amendment to Section 2.4(b)(4). Section 2.4(b)(4) of the Original DDA
is hereby deleted in its entirety and replaced and amended as follows:
"(4) A copy of the commitment or commitments obtained by the Developer for
any loans, grants, or other financial assistance (including, but not limited to, a Tax
Credit Reservation letter from TCAC, evidence of the County Loan from the County,
and construction and permanent loans from private lenders) to assist in financing the
construction of the Improvements certified by the Developer to be true and correct
copies thereof."
Section 1.7 Amendment to Section 2.6. Section 2.6 of the Original DDA is hereby
deleted in its entirety and replaced and amended as follows:
"Section 2.6 Other Financing.
As of the date of the Third Amendment, the Developer has secured financing
commitments for the Development and no other financing applications are necessary
to fund the construction of the Development. The Developer shall also submit to the
Authority evidence reasonably satisfactory to the Authority that any conditions to the
release or expenditure of funds described in the approved Financing Plan as the
sources of funds to pay the costs of constructing the Improvements have been met or
will be met by the Close of Escrow and subject to the Developer's satisfaction of
standard disbursement preconditions required to be satisfied on a periodic basis, for
constructing the Improvements. Submission by the Developer, and approval by the
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Authority, of such evidence of funds availability shall be a condition precedent to the
Authority's obligation to convey the Property to the Developer"
Section 1.8 Amendment to Section 3.2. Section 3.2 of the Original DDA is hereby
deleted in its entirety and replaced and amended as follows:
"Section 3.2 Purchase Price.
The purchase price for the Property is Two Million Seven Hundred Thousand Dollars
($2,700,000), to be paid to the Authority by the Developer at the Close of Escrow."
Section 1.9 Amendment to Section 6.9. Section 6.9 of the Original DDA is hereby
deleted in its entirety and replaced and amended as follows:
"Section 6.9 Resident Services Plan and Resident Services Budget.
(a) Resident Services Funded from Operating Income. Developer hereby
agrees to contract for a resident services coordinator at least one (1) month prior to
completion of the Improvement pursuant to Section 5.4 above. As part of the
Approved Financing Plan, the Authority has approved an annual sum of Ninety-Five
Thousand Dollars ($95,000), increased by two percent (2%) per year for the entire
Term, for Resident Services to be paid out of Operating Expenses. The Resident
Services to be paid out of Operating Expenses shall be used to pay for one fulltime
resident services coordinator, site events and activities, supplies, and reasonable costs
associated with the oversight and management of site-based staff not to exceed 10%
of staffing costs (inclusive of benefits) consistent with the Resident Services Plan.
(b) Additional Resident Services Funded from Supportive Services Reserve. In
addition, the Developer has committed to fund a "Supportive Services Reserve"
which the Developer is capitalizing with: (1) a deposit of One Million Seven
Hundred Two Thousand Five Hundred Ninety-Two Dollars ($1,702,592) at the Close
of Escrow; (2) an additional deposit of Seven Hundred Ninety-Seven Thousand Four
Hundred Eight Dollars ($797,408) which will be made at least two (2) months prior
to the completion of construction; and (3) commencing ten (10) years from the
Completion of Construction of the Development and continuing for the entire Term
of the Agreement, the Developer shall make additional deposits of the Developer's
share of Residual Receipts in the amounts shown on the Reserve Draw Schedule (the
"Partnership Cash Flow Deposits", and collectively the "Supportive Services
Deposits"). The Supportive Services Deposits are to be held in the Supportive
Service Reserve and shall be used exclusively to fund "Additional Resident Services"
(defined below) at the Development in excess of those payable from Annual
Operating Expenses. The Additional Resident Services shall be proposed by the
Developer on an annual basis as part of the updates to the Resident Service Plan
required under subsection (d) below, consistent with the requirements of this
subsection (b). The Parties agree and acknowledge that the Supportive Services
Reserve was established to pay solely for Additional Services to be provided to
residents of the Development, including a part-time activity coordinator and
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reasonable costs associated with the oversight and management of site-based staff,
not to exceed ten percent (10%) of direct staffing costs (inclusive of benefits). No
funds deposited into the Supportive Services Reserve may be used for any other
purposes without prior written approval from the Authority. The expenditures from
the Supportive Services Reserve shall be excluded from Annual Operating Expenses
and any future deposits into the Supportive Services Reserve shall be excluded from
Operating Income and shall instead be solely dedicated to paying for the Additional
Resident Services approved by the Authority under the Services Budget and Services
Plan. Notwithstanding anything to the contrary, the Partnership Cash Flow Deposits
required hereunder shall be subject to the rights of the Investor under the Developer's
partnership agreement, including but not limited to requirements to pay credit
adjusters, investor loans, unpaid asset management fees (including investor asset
management fees in excess of $5,000 which are payable under the terms of the
Developer's partnership agreement), replenishment of the Operating Reserve to the
full amount required under the Developer's partnership agreement, and 10% of the
remaining balance to the Investor (collectively, "LPA Priority Payments"). If and to
the extent the Partnership Cash Flow Deposits are not funded as a result of the
payment of LPA Priority Payments, then the Developer's general partners shall make
available the funds necessary to fully fund the Partnership Cash Flow Deposits and
any remaining Partnership Cash Flow is reserved to fund the Partnership Cash Flow
Deposits.
(c) As of the date of this Agreement, the Parties agree and acknowledge that the
Supportive Services Reserve draw down schedule, attached hereto as Attachment H,
incorporated herein by this reference (the "Reserve Draw Schedule"), will serve as a
baseline for the authorized annual expenditures from the Supportive Services
Reserve. The Reserve Draw Schedule, which is hereby approved by the Housing
Authority, allows for a maximum annual withdrawal of up to Fifty Thousand Dollars
($50,000) per year, increased by two percent (2%) per year for the Term, which the
Developer will use to fund Additional Services (the "Maximum Reserve Annual
Draw"), thereby ensuring that the Additional Resident Services shall be available to
the Residents of the Development for the entire Term. The Maximum Reserve
Annual Draw represents the baseline of Additional Resident Services that are
intended to remain relatively constant for the entire Term, subject to minor
modifications approved in writing by the Authority (including for example temporary
services or pilot programs not intended to continue for the Term) as part of the
Services Plan and Services Budget.
(d) Other than as provided in subsection (c) above, if the Developer desires to
provide services in excess of the Maximum Reserve Annual Draw, the Developer
shall be required to make additional deposits into the Supportive Services Reserve or
increase the Partnership Cash Flow Deposits in an amount necessary to fund the
additional services for the remainder of the Term or intended duration of such
Additional Services, as applicable, and shall also provide to the Authority for its
review and approval any necessary revisions to the Reserve Draw Schedule which, if
approved would also include a revision to the Maximum Reserve Annual Draw.
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(e) Services Budget. The Resident Services Budget attached hereto as
Attachment I, incorporated herein by this reference, is the approved initial Resident
Services Budget. No later than six (6) months prior to the completion of construction
of the Development pursuant to the Development Schedule, the Developer shall
submit to the Authority updates to the Resident Services Budget showing: (1) the
annual sum of Resident Services to be paid out of Operating Expenses pursuant to
subsection (a) above and provide details about the services to be provide utilizing
such funds; and (2) the actual amount of funds necessary to fund Additional Resident
Services for the upcoming year to be paid from the Support Services Reserve, which
subject to the terms specified in subsection (c) above, shall not exceed the Maximum
Reserve Annual Draw. Annually each year thereafter, within sixty (60) days prior to
the end of the Developer's fiscal year, the Developer shall submit to the Authority, for
its review and approval, any updates or revisions to the Resident Services Budget.
(f) Service Plan. The Resident Services Plan attached hereto as Attachment J,
incorporated herein by this reference is the approved initial Resident Services Plan for
the Development. No later than six (6) months prior to the completion of
construction of the Development pursuant to the Development Schedule, the
Developer shall submit to the Authority updates to the Resident Services Plan
showing: (1) detailed description of the required services being provided to the
Residents of the Development and being funded from Operating Expenses; and (2) a
detailed description of the Additional Resident Services being provided to the
Residents of the Development and being funded from the Supportive Services
Reserve. Annually each year thereafter, within sixty (60) days prior to the end of the
Developer's fiscal year, the Developer shall submit to the Authority, for its review
and approval, any updates or revisions to the Resident Services Plan.
Notwithstanding anything herein to the contrary, the Authority shall not prohibit the
Developer from providing any services required by any governmental agency or
lender or required under the TCAC use agreement.
(g) Review and Approval. Upon receipt by the Authority of the proposed
Resident Services Plan and Resident Services Budget, the Authority shall promptly
review the same and approve or disapprove the Resident Services Plan and the
Resident Services Budget within ten (10) working days after submission. If the
Resident Services Plan or Resident Services Budget are not approved by the
Authority, the Authority shall set forth in writing and notify the Developer of the
Authority's reasons for withholding such approval, which may include a request by
the Authority for a change in the nature or scope of resident services or a change in
service provider. The Developer shall thereafter submit a revised Resident Services
Plan and Resident Services Budget for Authority approval, which approval shall be
granted or denied within seven (7) working days in accordance with the procedures
set forth above. The approval of the Resident Services Plan and Resident Services
Budget required hereunder shall not be unreasonably conditioned, withheld or
delayed. Notwithstanding anything to the contrary, the Developer agrees and
acknowledges that the Authority shall have the right to disapprove changes to the
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Resident Services Plan and Resident Services Budget which: (1) are in excess of the
Maximum Reserve Annual Draw; or (b) cause fluctuations and disruption in the
services being provided to Residents of the Development. If the Authority does not
approve or disapprove updates to Resident Services Plan or Resident Services Budget
within the timeframe specified in this subsection (g), then the Resident Services Plan
or Resident Services Budget, as applicable, from the prior year shall remain in effect
and the Resident Services Budget from the prior year shall be subject to the two
percent (2%) escalators pursuant to subsections (a) and (c) respectively."
Section 1.10 Amendment to Section 7.4(f). Section 7.4(f) of the Original DDA is
hereby deleted in its entirety and replaced and amended as follows:
"(f) The Authority also hereby approves future Transfers of the limited partner
interest provided that: (1) such Transfers do not affect the timing and amount of the
limited partner capital contributions provided for in the Partnership Agreement
approved by the Authority, which shall be payable by either the existing limited
partner or the transferee of the limited partner's interest; and (2) in such Transfers, a
wholly owned affiliate of the limited partner retains a membership or partnership
interest and serves as a managing member or managing general partner of the
successor limited partner."
Section 1.11 Amendment to Section 8.4(a). Section 8.4(a) of the Original DDA is
hereby deleted in its entirety and replaced and amended as follows:
"(a) In the event that, following the Close of Escrow, this Agreement is
terminated as a result of an uncured Event of Default as defined in Section 8.4 and
such termination occurs prior to issuance of a Certificate of Completion for the
Improvements, then the Authority shall have the right to reenter and take possession
of the applicable portion of the Property still owned by the Developer, and all
Improvements thereon, and to revest in the Authority the estate of the Developer in
that portion of the Property."
Section 1.12 Amendment to Section 8.4(a)(13). Section 8.4(a)(13) of the Original DDA
is hereby deleted in its entirety and replaced and amended as follows:
"(13) The Developer breaches any other material provision of this Agreement
(including without limitation the failure to make the Supportive Services Deposits
and the Partnership Cash Flow Deposits required under Section 6.9 of this
Agreement) or any material provision in any of the other Authority Documents which
remains uncured after expiration of any applicable cure periods."
Section 1.13 Amendment to Section 8.5. Section 8.5 of the Original DDA is hereby
deleted in its entirety and replaced and amended as follows:
"(a) Upon the happening of any of the above-described events in Section 8.4, the
Authority shall first notify the Developer in writing of its purported breach, failure or
act above described, giving the Developer in writing forty-five (45) days from receipt
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of such notice to cure, or, if cure cannot be accomplished within said forty-five (45)
days, to commence to cure such breach, failure, or act. In the event the Developer
fails to cure within said forty-five (45) days, or if such breach is of a nature that it
cannot be cured within forty-five (45) days, Developer fails to commence to cure
within said forty-five (45) days and diligently complete such cure within a reasonable
time thereafter but in no event later than one hundred twenty (120) days, then the
Authority shall be afforded all of its rights at law or in equity by taking any or all of
the following remedies:
(1) Terminating this Agreement;
(2) Prosecuting an action for damages or specific performance; and
(3) Any of the remedies specified in Section 8.6 through Section 8.10.
(b) Notwithstanding the notice and cure periods set forth above, with respect to
a Developer Event of Default described in subsection 8.4(a)(6), (7), or (8) above, the
Authority may initiate enforcement action, without the provision of any notice, or the
passage of any cure period."
Section 1.14 Amendment to Section 8.6. Section 8.6 of the Original DDA is hereby
deleted in its entirety and replaced and amended as follows:
"Section 8.6 Right of Reverter.
(a) In the event that, following the Close of Escrow, this Agreement is
terminated pursuant to Section 8.5 and such termination occurs prior to issuance of a
Certificate of Completion for the Improvements, then the Authority shall have the
right to reenter and take possession of the applicable portion of the Property still
owned by the Developer, and all Improvements thereon, and to revest in the
Authority the estate of the Developer in that portion of the Property.
(b) Upon vesting or revesting in the Authority of title to any applicable portion
of the Property, the Authority shall promptly use its best efforts to resell such portion
of the Property consistent with the Authority's obligations under applicable laws.
Upon sale the proceeds shall be applied as follows:
(1) First, to reimburse the Authority for any costs it incurs in managing or
selling the Property (after exercising its right of reverter), including but not limited to
amounts to discharge or prevent liens or encumbrances arising from any acts or
omissions of the Developer;
(2) Second, to reimburse the Authority for reasonable damages to which it is
entitled under this Agreement by reason of the Developer's default;
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(3) Third, to the Developer for the reasonable cost of the Improvements the
Developer has placed on the Property and such other reasonable costs Developer has
incurred directly in connection with development of the Property that were not
financed by the Authority; and
(4) Fourth, any balance to the Authority.
(c) Notwithstanding anything herein to the contrary, the Authority confirms that
the right of reverter pursuant to this Section 8.6 and the Grant Deed shall be limited
by and shall not defeat, render invalid or limit any Security Financing Interest in
connection with the Bank Loan with respect to the Property or any rights or interest
of the Investor with respect to the Property.
(d) In the event of any foreclosure of any Security Financing Interest of Bank
(or any conveyance by deed in lieu thereof) and after the Authority receiving notice
of a default and an opportunity to cure (as provided in the subordination agreement
between the Bank, Authority and the Developer), Authority agrees that any right of
reverter set forth in this Section 8.6 and the Grant Deed shall be terminated and be
non-enforceable by the Authority. Notwithstanding anything to the contrary, the
Authority's rights and remedies under the Regulatory Agreement would remain in full
force and effect in the event of any foreclosure described in this subsection (d)."
Section 1.15 Amendment to Section 8.7. Section 8.7 of the Original DDA is hereby
deleted in its entirety and replaced and amended as follows:
"Section 8.7 Option to Repurchase, Reenter and Repossess.
(a) The Authority shall have the additional right at its option to repurchase,
reenter and take possession of the Property or any portion thereof owned by the
Developer with all improvements thereon, if after conveyance of title to any portion
of the Property, and prior to the issuance of the Certificate of Completion for the
Improvements, there is an uncured Developer Event of Default pursuant to Section
8.5.
(b) Such right to repurchase, reenter and repossess, to the extent provided in this
Agreement, shall be subordinate and subject to and be limited by and shall not defeat,
render invalid or limit:
(1) Any approved Senior Lien permitted by this Agreement; or
(2) Any rights or interest provided in this Agreement for the protection
of the holder of such Senior Lien Interests.
(c) To exercise its right to repurchase, reenter and take possession with respect
to the Property owned by the Developer, the Authority shall pay to the Developer in
cash an amount equal to:
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(1) The Purchase Price paid to the Authority for the applicable portion
of the Property pursuant to Section 3.2 not financed by the Authority; plus
(2) The fair market value of the improvements existing on the
applicable portion of the Property at the time of the repurchase, reentry and
repossession; less
(3) Any gains or income withdrawn or made by the Developer from
the applicable portion of the Property or the improvements thereon; less
(4) The value of any unpaid liens or encumbrances on the applicable
portion of the Property which the Authority assumes or takes subject to said
encumbrances.
(d) Notwithstanding anything herein to the contrary, the Authority confirms that
the option to purchase pursuant to this Section 8.7 and the Grant Deed shall be limited
by and shall not defeat, render invalid or limit any Security Financing Interest in
connection with the Bank Loan with respect to the Property or any rights or interest
of the Investor with respect to the Property.
(e) In the event of any foreclosure of any Security Financing Interest of Bank
(or any conveyance by deed in lieu thereof) and after the Authority receiving notice
of a default and an opportunity to cure (as provided in the subordination agreement
between the Bank, Authority and the Developer), Authority agrees that any option to
purchase set forth in this Section 8.7 and the Grant Deed shall be terminated and be
non-enforceable by the Authority. Notwithstanding anything to the contrary, the
Authority's rights and remedies under the Regulatory Agreement would remain in full
force and effect in the event of any foreclosure described in this subsection (e)."
Section 1.16 Amendment to Subsection 10.1. Section 10.1 of the Original DDA is
amended to add the Investor's address to read as follows:
"To the Investor:
Wells Fargo Affordable Housing
Community Development Corporation
MAC D1053-170
301 South College Street
Charlotte, NC 28288
Attention: Director of Tax Credit Asset Management"
Section 1.17 Amendment to Section 10.21. The Original DDA is hereby amended to
add Section 10.21 which shall read as follows:
"10.21 Investor's Rights.
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The Authority agrees to the following provisions for the benefit of the Developer's
Investor:
(a) The Authority will give the Investor a copy of any written notice that the
Authority gives to Borrower under this Agreement and the other Authority
Documents;
(b) The Authority will give the Investor forty-five (45) days after the Investor's
receipt of such notice to cure any default under the Authority Documents;
(c) If a default is incapable of being cured within the forty-five (45) day period
set forth in item (b) above, so long as such cure is commenced within the forty-five
(45) days and is being diligently pursued to completion, the Authority will give the
Investor additional time to cure such default, but in no event later than one hundred
twenty (120) days;
(d) If the Investor makes any such payment or otherwise cures such default, the
Authority will accept such action as curing such Default as if such payment or cure
were made by Borrower;
(e) The Authority will permit insurance and condemnation proceeds to be used
to rebuild the Development provided that: (1) sufficient funds are provided from other
sources to effectively rebuild the Affordable Development to a lawful multifamily
housing complex, and (2) subject to the rights of any senior lenders, the Authority
shall hold all such proceeds and disburse them based on the progress of construction,
subject to such additional reasonable conditions as the Authority may impose."
Section 1.18 Amendment to Exhibit D: Approved Financing Plan. The Financing
Proposal attached to the Original DDA as Exhibit D, is hereby replaced with the Financing Plan
attached to this Amendment as Attachment B, incorporated herein by this reference and is
approved as the Financing Plan pursuant to Section 5.11 of the Original Agreement.
Section 1.19 Amendment to Exhibit F: Form of Authority Promissory Note. The Form
of Authority Promissory Note attached to the Original DDA as Exhibit F, is hereby replaced with
the Form of Authority Promissory Note attached to this Amendment as Attachment C,
incorporated herein by this reference.
Section 1.20 Amendment to Exhibit G: Form of Authority Deed of Trust. The Form of
Authority Deed of Trust attached to the Original DDA as Exhibit G, is hereby replaced with the
Form of Authority Deed of Trust attached to this Amendment as Attachment D, incorporated
herein by this reference.
Section 1.21 Amendment to Exhibit B: Development Schedule. The Development
Schedule attached to the Original DDA as Exhibit B, is hereby replaced with the revised
Development Schedule attached to this Amendment as Attachment E, incorporated herein by this
reference.
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Section 1.22 Amendment to Exhibit E: Form of Authority Regulatory Agreement. The
form of Authority Regulatory Agreement attached to the Original DDA as Exhibit E, is hereby
replaced with the form of Authority Regulatory Agreement attached to this Amendment as
Attachment F, incorporated herein by this reference.
Section 1.23 Amendment to Exhibit H: Form of Notice of Affordability Restrictions on
Transfer of Property. The Form of Notice of Affordability Restrictions on Transfer of Property
attached to the Original DDA as Exhibit H, is hereby replaced with the Form of Notice of
Affordability Restrictions on Transfer of Property attached to this Amendment as Attachment G,
incorporated herein by this reference.
ARTICLE 2.
MISCELLANEOUS
Section 2.1 No Other Changes to the Agreement. Except as expressly modified by
this Third Amendment, all other provisions of the Original DDA remain unmodified and
continue in full force and effect.
Section 2.2 Conflicts with the Agreement. In the event of any conflict between this
Third Amendment and the Original DDA, the provisions of this Third Amendment shall prevail.
Section 2.3 Effective Date. This Third Amendment shall be effective on the date first
set forth above.
Section 2.4 Successors and Assigns. This Third Amendment shall be binding on and
inure to the benefit of the legal representatives, heirs, successors and assigns of the parties.
Section 2.5 California Law. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of California.
Section 2.6 Counterparts; Multiple Originals. This Third Amendment may be
executed in multiple originals, each of which is deemed to be an original, and may be signed in
counterparts.
Section 2.7 Recordation. This Third Amendment shall be recorded against the
Developer's interest in the Property described in the attached Attachment A, at the Close of
Escrow.
15 of 119 April 2, 2019, Item # 4.1
13
1552\12\2547457.7
IN WITNESS WHEREOF, the Authority and the Developer have executed this
Agreement in triplicate on or as of the date first above written.
DEVELOPER:
VILLA DE VIDA POWAY, L.P., a California limited partnership
By: Villa de Vida GP, LLC, a California limited liability
company, its Managing General Partner
By: Mercy Housing Calwest, a California nonprofit
public benefit corporation, its sole member and
manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
By: VDV POWAY LLC, a California limited liability
company, its Administrative General Partner
By: Villa de Vida, Inc., a California nonprofit public
benefit corporation, its sole member and manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
16 of 119 April 2, 2019, Item # 4.1
1552\12\2547457.7 14
AUTHORITY:
POWAY HOUSING AUTHORITY, a public body
corporate and politic
B y: ________________________________
Tina White, Executive Director
Date: _________________________
APPROVED AS TO FORM:
GOLDFARB & LIPMAN LLP,
Authority Special Counsel
B y: _______________________
Rafael Yaquian
17 of 119 April 2, 2019, Item # 4.1
1552\12\2547457.7 15
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
18 of 119 April 2, 2019, Item # 4.1
1552\12\2547457.7 16
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
19 of 119 April 2, 2019, Item # 4.1
A-1
1552\12\2547457.7
ATTACHMENT A
LEGAL DESCRIPTION
The land is situated in the State of California, County of San Diego, City of Poway, and is
described as follows:
20 of 119 April 2, 2019, Item # 4.1
B-1
1552\12\2547457.7
ATTACHMENT B
FINANCING PLAN
The attached Financing Plan hereby supersedes the Financing Proposal attached as Exhibit D of
the Original DDA.
21 of 119 April 2, 2019, Item # 4.121 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway
Prepared For:Mercy Housing California
Prepared By:California Housing Partnership Corporation
Version:v 2.27 (pre-closing)
Revised:3/28/19
Notes:
Sources of Funds…………………………………..……..1 Threshold Basis Limits……………………...……………7
Uses of Funds…………………………………...……….1a 15-Year Cash Flow……………………...……………8
Unit Mix & Rental Income…………………………………..2 Outstanding Debt & Reserves……………………...……………8a
Rent Comparison Table………..……………………………………..2a Schedule of Deductions……………………...……………9
Tax Credit Calculation…………………………………..3 Analysis of Taxable Income……………………...……………10
Base Year Income & Expense…………………………………..4 Capital Account & Exit Tax Liability……………………...……………11
Mortgage Calculation & Bond Ratios…………………………………..4a Investment Summary……………………...……………12
Lease-up/Placed-in-Service Schedule…………………………………..5 Net Quarterly Benefits……………………...……………13
Net Syndication Proceeds…………………………………..6
PAGE 1
PERMANENT OID TERM /
AMOUNT INT RATE INT RATE AMORT COMMENTS
CCRC Permanent Loan 2,822,000 5.19% 15 All-in rate (underwriting & cash flow):5.19%
City Land Loan 2,700,000 3.00%1.76%57
City of Poway 750,000 3.00%1.76%57
GP Loan (Villa de Vida fundraising)2,500,000 0.00%0.00%55
SD County IHTF NOFA 3,445,000 3.00%1.79%55 Mandatory Interest payment:0.00%
Deferred Developer Fee 600,000 0.00%City of Poway requires $600K deferred fee 2.53%
Capital Contributions NET FIGURES (TCAC)Total currently paid developer fee:1,400,000$
General Partner 100 % ownership:0.01%
Limited Partners (WFAHCDC)19,829,019 19,679,019 % ownership:99.99%
Credit pricing (Federal LIHTC):$1.0050
TOTAL SOURCES 32,646,119 32,496,119 Credit pricing (State LIHTC):$0.800
Surplus/(Shortfall)(0)
CONSTRUCTION
AMOUNT INT RATE TERM (Mo.)
WFB Construction Loan 19,506,487 5.60%28 6,310,000$
City Land Loan 2,700,000 3.00%28
City of Poway 700,000 3.00%28 $50,000 hold back until Permanent Conversion
GP Loan (Villa de Vida fundraising)1,702,592 0.00%28
SD County IHTF NOFA 3,445,000 3.00%28
Costs Deferred Until Completion*1,909,038
Deferred Developer Fee 600,000
Capital Contributions NET FIGURES (TCAC)
General Partner 100 0.00%
Limited Partners (WFAHCDC)2,082,902 1,932,902
TOTAL SOURCES 32,646,119 32,496,119
Surplus/(Shortfall)0
COSTS DEFERRED UNTIL CONVERSION DEVELOPER FEE PAYMENT SCHEDULE
TCAC Monitoring Fee 21,730 Total paid developer fee 1,400,000$
Operating Reserve (6 mos) 369,900
Syndication consulting - LP Admission 600,000
GP Loan (Services Reserve)797,408 100% Completion -
Legal: Perm Close - Completion (Equity as source)100,000
Title/Recording/Escrow - Permanent 20,000 Permanent Conversion 400,000
Audit/Cost Certification - 8609 300,000
Developer Fee 700,000
Total 1,400,000
1,909,038
INTEREST RATE STACK Construction Permanent HCIDLA LEVERAGING SCORE
Tranche A Tranche B Total Sources (not including HCID or equity)3,572,000$
Total Development Costs 32,646,119
30-day LIBOR/est. rate 2.500%2.440%0.000%
Lender Spread 1.600%2.650%2.650%Ratio Sources to TDC 10.942%
Cushion 1.500%0.000%0.100%0.000%
TOTAL 5.60%0.00%5.19%2.65%
Rates Revised:3/22/19
TABLE OF CONTENTS
SOURCES OF FUNDS
22 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway PAGE 1-A
Uses of Funds Version:
Revised:
Total Hard Costs 15,978,268 100.00%
TOTAL TOTAL DEPRECIABLE TAX CREDIT ELIGIBLE
RESIDENTIAL COMM NON- CONST/
TOTAL 100.00%0.00%DEPREC RESIDENTIAL COMM EXPENSE AMORTIZE REHAB ACQUIS.
ACQUISITION COSTS
Acquisition: Land 2,700,000 2,700,000 0 2,700,000
Offsite Improvements 0 0 0 0 0 0
GENERAL DEVELOPMENT COSTS
Residential Construction 12,271,650 12,271,650 0 0 12,271,650 0 0 12,271,650
Parking 59,778 59,778 0 0 59,778 0 0 59,778
Demolition 117,958 117,958 0 117,958 0 0 0 0
Site Improvements/Landscape 1,006,034 1,006,034 0 0 1,006,034 0 1,006,034
Furnishings (included in contract)520,147 520,147 0 520,147 0 520,147
Contractor General Conditions 931,216 931,216 0 0 931,216 0 931,216
Contractor O&P 783,249 783,249 0 0 783,249 0 783,249
GC Bond & Insurance 288,236 288,236 0 0 288,236 0 288,236
Construction Contingency 2,305,517 2,305,517 0 0 2,305,517 0 2,305,517
Local Permits/Fees 375,000 375,000 0 0 375,000 0 375,000
Local Development Impact Fees 786,481 786,481 0 0 786,481 0 786,481
Phase I/Asbestos/Toxics 25,000 25,000 0 0 25,000 0 25,000
Wage Monitoring 45,000 45,000 0 45,000 0 45,000
Architecture 642,579 642,579 0 642,579 0 642,579
Survey & Engineering 330,000 330,000 0 330,000 0 330,000
Appraisal 15,000 15,000 0 0 15,000 0 0 15,000
Market Study 15,000 15,000 0 15,000 0 15,000
Predevelopment Loan Interest & Fees 50,360 50,360 0 50,360 0 0 0 0
Construction Interest Reserve 1,733,200 1,733,200 0 1,114,200 0 619,000 1,114,200 0
Title/Recording/Escrow - Acquisition 20,000 20,000 0 20,000 0 0 0 0
Title/Recording/Escrow - Construction 65,000 65,000 0 65,000 0 65,000 0
Title/Recording/Escrow - Permanent 20,000 20,000 0 20,000
Insurance 98,000 98,000 0 98,000 0 0 98,000 0
Real Estate Taxes 55,978 55,978 0 55,978 0 0 55,978 0
Soft Cost Contingency 349,228 349,228 0 349,228 0 349,228
TCAC Application/Monitoring Fee 157,858 157,858 0 157,858
Legal: Acquisition 0 0 0 0 0 0
Construction Closing 85,000 85,000 0 85,000 0 85,000 0
Permanent Closing 20,000 20,000 0 20,000
Syndication Consulting 65,000 65,000 0 65,000 0 0 0
Audit/Cost Certification 35,000 35,000 0 0 0 35,000 0 0
Furnishings (common area)225,000 225,000 0 225,000 0 225,000
Replacement Reserve 20,250 20,250 0 20,250
Operating Reserve (6 mos) 369,900 369,900 0 369,900
Marketing/Lease-Up Account 135,000 135,000 0 135,000
Utility Connection Fees 750,000 750,000 0 750,000 0 750,000
Construction Management 336,000 336,000 0 336,000 0 336,000
Supportive Services Reserve* 2,500,000 2,500,000 0 2,500,000 0 0 0
Syndication Costs 50,000 50,000 0 50,000 0 0 0
Developer Fee 2,000,000 2,000,000 0 2,000,000 0 1,400,000 0
COSTS OF ISSUANCE/FINANCING FEES
Lender Expenses & Inspections 40,000 40,000 0 40,000 0 40,000
Lender Counsel 80,000 80,000 0 80,000 0 80,000
Lender/Credit Enhancement Fees (constr loan)146,300 146,300 0 146,300 146,300
Lender/Credit Enhancement Fees (perm loan)21,200 21,200 0 21,200 0
Subtotal -Costs of Issuance 287,500 287,500 0 0 266,300 0 0 21,200 266,300 0
TOTAL DEVELOPMENT COSTS 32,646,119 32,646,119 0 5,893,468 25,744,593 0 789,000 219,058 25,144,593 0
TDC per Unit 604,558
*This reserve is fundraised by Villa de Vida.
Maximum Seller Loan 6%MAXIMUM DEVELOPER FEE CALCULATION
Syndication Costs:150,000 Constr Acq Total
Purchase Price 2,700,000 Max TCAC Fee (Per Limit)2,200,000 - 2,200,000
Max. TCAC Fee in TDC (cost efficiency)1,585,848 - 1,585,848
Payoff: first mortgage 96,428 Max. TCAC Fee in basis 1,400,000 - 1,400,000
-
Maximum Seller Note*2,603,572 Ratio 100.00%0.00%100.00%
Maximum Fee per Poway 2,000,000 - 2,000,000
MAXIMUM FEE PER TCAC APP 2,000,000 - 2,000,000
v 2.27 (pre-closing)
March 28, 2019
23 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway PAGE 2
Unit Mix & Rental Income Version:
Revised:
UTILITY
AVERAGE AFFORDABILITY FOR UNIT MIX ALLOWANCES
SPECIAL NEEDS UNITS 40.00%0 BR 0 $0
1 BR 50 $37
AVERAGE AFFORDABILITY FOR 2 BR 4 $47
ALL UNITS (%AMI) 44.53%3 BR 0 $0
4 BR 0 $0
RESIDENTIAL INCOME
TAX-CREDIT ELIGIBLE - TIER 1:30%AMI LIHTC CA RDL: ELI TCAC SN Percentage of Targeted Units:13.2%
* 6 1BR and 1 2BR unit restricted to CA RDL: ELI per Poway Reg Agmt
% MEDIAN PER-UNIT PER-UNIT TOTAL TOTAL
PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL
UNIT TYPE NUMBER SQ FT SQ FT AFFORDABLE GROSS RENT NET RENT NET RENT NET RENT
1 BR 6 600 3,600 26.9%491 454 2,724 32,688
2 BR 1 850 850 25.2%552 505 505 6,060
TOTAL 7 4,450 3,229 38,748
TAX-CREDIT ELIGIBLE - TIER 2:40%AMI LIHTC TCAC SN Percentage of Targeted Units:49.1%
* 6 1BR and 1 2BR unit restricted to CA RDL: VLI; 11 1BR unit restricted to CA RDL: LI per Poway Reg Agmt
% MEDIAN PER-UNIT PER-UNIT TOTAL TOTAL
PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL
UNIT TYPE NUMBER SQ FT SQ FT AFFORDABLE GROSS RENT NET RENT NET RENT NET RENT
1 BR 25 600 15,000 40.0%730 693 17,325 207,900
2 BR 1 850 850 40.0%876 829 829 9,948
TOTAL 26 15,850 18,154 217,848
TAX-CREDIT ELIGIBLE - TIER 3:50%AMI LIHTC TCAC SN Percentage of Targeted Units:13.2%
* 1 2BR unit restricted to CA RDL: VLI per Poway Reg Agmt
% MEDIAN PER-UNIT PER-UNIT TOTAL TOTAL
PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL
UNIT TYPE NUMBER SQ FT SQ FT AFFORDABLE GROSS RENT NET RENT NET RENT NET RENT
1 BR 6 600 3,600 50.0%913 876 5,256 63,072
2 BR 1 850 850 42.0%920 873 873 10,476
TOTAL 7 4,450 6,129 73,548
TAX-CREDIT ELIGIBLE - TIER 4:50%AMI LIHTC SN (non-TCAC)Percentage of Targeted Units:3.8%
% MEDIAN PER-UNIT PER-UNIT TOTAL TOTAL
PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL
UNIT TYPE NUMBER SQ FT SQ FT AFFORDABLE GROSS RENT NET RENT NET RENT NET RENT
1 BR 2 600 1,200 50.0%913 876 1,752 21,024
2 BR 0 850 0 0.0%0 873 0 0
TOTAL 2 1,200 1,752 21,024
TAX-CREDIT ELIGIBLE - TIER 5:60%AMI LIHTC SN (non-TCAC)Percentage of Targeted Units:20.8%
% MEDIAN PER-UNIT PER-UNIT TOTAL TOTAL
PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL
UNIT TYPE NUMBER SQ FT SQ FT AFFORDABLE GROSS RENT NET RENT NET RENT NET RENT
1 BR 11 600 6,600 60.0%1,095 1,058 11,638 139,656
2 BR 0 850 0 0.0%0 1,267 0 0
TOTAL 11 6,600 11,638 139,656
* All units underwritten at 2007 50% AMI rents
MANAGER UNITS
% MEDIAN PER-UNIT PER-UNIT TOTAL TOTAL
PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL
UNIT TYPE NUMBER SQ FT SQ FT AFFORDABLE GROSS RENT NET RENT NET RENT NET RENT
2 BR 1 600 600 0.0%0 0 0 0
TOTAL 1 600 0 0
SECTION 8 (PBVs) - 20-year contract from HACSD
PER-UNIT PER UNIT PER-UNIT TOTAL TOTAL
INCOME MONTHLY SECTION 8 MONTHLY MONTHLY ANNUAL
UNIT TYPE NUMBER TIER NET RENT NET RENT S8 PREMIUM SECTION 8 PREMIUM S8 PREMIUM
1 BR 6 30%454 1,543 1,089 6,534 78,408
1 BR 25 40%693 1,543 850 21,250 255,000
1 BR 6 50%876 1,543 667 4,002 48,024
1 BR 2 50%876 1,543 667 1,334 16,008
1 BR 11 60%1,058 1,543 485 5,335 64,020
2 BR 1 30%505 2,003 1,498 1,498 17,976
2 BR 1 40%829 2,003 1,174 1,174 14,088
2 BR 1 50%873 2,003 1,130 1,130 13,560
TOTAL 53 42,257 507,084
SECTION 8 PREMIUM (annual Section 8 income less total annual base rents)507,084
TOTAL - BASE RENT PLUS SECTION 8 PREMIUM 83,159 997,908
TOTAL RESIDENTIAL INCOME TOTAL TOTAL TOTAL
UNITS MONTHLY (Net)ANNUAL
54 83,159 997,908
TOTAL SQ FT - TAX CREDIT ELIGIBLE 28,100
TOTAL SQ FT - NON-TAX CREDIT ELIGIBLE 0
TOTAL RENTABLE SQ FT 28,100
MISCELLANEOUS INCOME PER-UNIT TOTAL TOTAL
MONTHLY MONTHLY ANNUAL
Laundry/Vending 4.58 248 2,970
Financial & Other Revenue 2.00 108 1,296
v 2.27 (pre-closing)
March 28, 2019
24 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway PAGE 3
Tax Credit Calculation Version:
Revised:
FEDERAL CALIFORNIA
CONST/ CONST/
ACQUIS REHAB TOTAL ACQUIS REHAB TOTAL
TOTAL ELIGIBLE COSTS 0 25,144,593 25,144,593 0 25,144,593 25,144,593
Less:
Non-Eligible (Parking): 0 0 0 0 0
ELIGIBLE BASIS 0 25,144,593 25,144,593 0 25,144,593 25,144,593
THRESHOLD BASIS LIMIT 19,657,092
Voluntary Reduction 0
REQUESTED ELIGIBLE BASIS 0 19,657,092 19,657,092 0 25,144,593 25,144,593
HIGH COST ADJUSTMENT (Y/N)Y 100.0%130.0%2018 SADDA 100.0%100.0%
ADJUSTED ELIGIBLE BASIS 0 25,554,219 25,554,219 0 25,144,593 25,144,593
APPLICABLE FRACTION*100.0%100.0%100.0%100.0%
QUALIFIED CREDIT BASIS 0 25,554,219 25,554,219 0 25,144,593 25,144,593
CREDIT REDUCTION 0.00%0 0 0
ADJUSTED QUALIFIED CREDIT BASIS 0 25,554,219 25,554,219
CREDIT RATE Federal Annual/Yr 1-3 State 3.32%9.00%3.32%9.00%
Year 4 - State 3.04%3.00%
MAXIMUM CREDIT AMOUNT PER COSTS
Federal Annual/Yr 1-3 State 0 2,299,880 2,299,880 0 6,789,040 6,789,040
Year 4 - State 0 754,338 754,338
Total 0 7,543,378 7,543,378
ACTUAL TCAC CREDIT RESERVATION
Federal Annual/Total State N/A N/A 1,973,234 N/A N/A N/A
MAXIMUM ALLOWABLE CREDITS
Federal Annual/Total State 0 1,973,234 1,973,234 7,543,378
Adjustment to State Credit for Gap -7,543,378
MAXIMUM ALLOWABLE - TEN YEAR TOTAL 19,732,340 0
v 2.27 (pre-closing)
March 28, 2019
25 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway PAGE 4
Base Year Income & Expense Version:
Revised:
INCOME
Scheduled Gross Income - Special Needs 330,144
Scheduled Gross Income - Special Needs (non-TCAC restricted)160,680
Section 8 Premium 507,084
Misc. Income 4,266
Vacancy Loss - Special Needs 5.0%(24,541)
Vacancy Loss - Section 8 Premium 5.0%(25,354)
Vacancy Loss - Misc Income 5.0%(213)
EFFECTIVE GROSS INCOME 952,065
EXPENSES - RESIDENTIAL
Administrative
Advertising 540
Legal 5,500
Accounting/Audit 8,100
Misc. Admin Expense 9,726
Telephone & Cable 15,070
Total Administrative 38,936
Management Fee 47,952
Utilities
Electricity 27,000
Gas 8,586
Total Utilities 35,586
Water/Sewer 32,940
Payroll/Payroll Taxes
Manager Payroll 102,000
Maintenance Payroll 74,880
Health Insurance & Other Employee Benefits 42,202
Total Payroll/Payroll Taxes 219,082
Insurance (Hazard)64,500
Property Taxes 2,500
Maintenance
Painting 500
Trash Removal 14,580
Grounds 5,900
Exterminating 5,316
Elevator 5,584
Misc. operating supplies, contracts and expenses 28,234
Total Maintenance 60,114
Replacement Reserve ($375/du per City)20,250
Other
Resident Services 95,000
Annual Monitoring Fee (SD HCD)4,000
Transit Passes 5,832
Total Other 104,832
TOTAL EXPENSES - RESIDENTIAL 626,692
Per Unit Per Year (incl. Reserves)11,605
Per Unit Per Year (w/o Reser., Taxes, Tenant Serv.)9,317
NET AVAILABLE INCOME 325,373
NET AVAILABLE INCOME (w/o Section 8)(156,357)
v 2.27 (pre-closing)
March 28, 2019
26 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway PAGE 4-B
Mortgage Calculation & Bond Ratios Version:
Revised:
MAXIMUM MORTGAGE CALCULATION
Permanent Loan
Financing Type:CCRC Permanent Loan
Net Operating Income (less Operating Subsidy)(156,356)
Section 8 Income 95%481,730
Adjusted NOI 325,373
DSC 1.20
Available for Debt Service 271,144
Less: debt service on VHHP -
Less: debt service on AHSC loan -
Less: debt service on Seller Financing -
Available for Debt Service 271,144
Underwriting Maximum
Constraint Loan Amount
Debt Service Coverage 1.20 2,822,000
Max Loan Necessary for Feasibility 2,822,000
Loan-to-Value 80.0%3,386,230
Percent of Transaction Costs 100.0%32,646,119
Statutory Limit 19,657,092
Commitment NA
Bond Loan Commitment NA
MAXIMUM MORTGAGE NA
MAXIMUM MORTGAGE 2,822,000
LOAN CONSTANT/TIC CALCULATION
Tranche A IRP Tranche B
Underwriting Tranche Underwriting
Bond/Loan Rate 5.19000%5.19000%2.65000%2.65000%2.65000%
Term (Yr)15.00 15.00 20.00 20.00 20.00
Mortgage Insurance Premium 0.00000%0.00000%0.00000%0.00000%0.00000%
Amort (P&I)4.41872%4.41872%3.79689%3.79689%3.79689%
Loan Constant 9.60872%9.60872%6.44689%6.44689%6.44689%
Imputed Total Interest Cost (TIC)5.19000%7.42029%2.65000%2.65000%2.65000%
v 2.27 (pre-closing)
March 28, 2019
27 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway PAGE 5
Lease-up/Placed-in-Service Schedule Version:
Revised:
LIHTC LEASE-UP SCHEDULE BUILDING PLACED-IN-SERVICE SCHEDULE OPERATIONS SCHEDULE
Lease-Up Start (Year):2020 Start Year:2020 Start Year:2020
Month # Units Percent Month Building ## Units Percent Month No. Units Percent
Jan-20 0 0.0%Jan-20 0 0 0.0%Jan-20 0 0.0%
Feb-20 0 0.0%Feb-20 0 0 0.0%Feb-20 0 0.0%
Mar-20 0 0.0%Mar-20 0 0 0.0%Mar-20 0 0.0%
Apr-20 0 0.0%Apr-20 0 0 0.0%Apr-20 0 0.0%
May-20 0 0.0%May-20 0 0 0.0%May-20 0 0.0%
Jun-20 0 0.0%Jun-20 0 0 0.0%Jun-20 0 0.0%
Jul-20 0 0.0%Jul-20 0 0 0.0%Jul-20 0 0.0%
Aug-20 0 0.0%Aug-20 0 0 0.0%Aug-20 0 0.0%
Sep-20 0 0.0%Sep-20 0 0 0.0%Sep-20 0 0.0%
Oct-20 8 15.1%Oct-20 1 9 16.7%Oct-20 9 16.7%
Nov-20 9 17.0%Nov-20 0 9 16.7%Nov-20 9 16.7%
Dec-20 9 17.0%Dec-20 0 9 16.7%Dec-20 9 16.7%
TOTAL 26 49.1%TOTAL 27 50.0%TOTAL 27 50.0%
% Q.O. in First Year 8.0%% PIS in First Year 8.3%% Operating in First Year 8.3%
LIHTC LEASE-UP SCHEDULE BUILDING PLACED-IN-SERVICE SCHEDULE OPERATIONS SCHEDULE
Lease-Up Start (Year):2021 Start Year:2021 Start Year:2021
Month # Units Percent Month Building ## Units Percent Month No. Units Percent
Jan-21 35 66.0%Jan-21 1 36 66.7%Jan-21 36 66.7%
Feb-21 9 17.0%Feb-21 0 9 16.7%Feb-21 9 16.7%
Mar-21 9 17.0%Mar-21 0 9 16.7%Mar-21 9 16.7%
Apr-21 0 0.0%Apr-21 0 0 0.0%Apr-21 0 0.0%
May-21 0 0.0%May-21 0 0 0.0%May-21 0 0.0%
Jun-21 0 0.0%Jun-21 0 0 0.0%Jun-21 0 0.0%
Jul-21 0 0.0%Jul-21 0 0 0.0%Jul-21 0 0.0%
Aug-21 0 0.0%Aug-21 0 0 0.0%Aug-21 0 0.0%
Sep-21 0 0.0%Sep-21 0 0 0.0%Sep-21 0 0.0%
Oct-21 0 0.0%Oct-21 0 0 0.0%Oct-21 0 0.0%
Nov-21 0 0.0%Nov-21 0 0 0.0%Nov-21 0 0.0%
Dec-21 0 0.0%Dec-21 0 0 0.0%Dec-21 0 0.0%
TOTAL 53 100.0%TOTAL 54 100.0%TOTAL 54 100.0%
% Q.O. in First Year 95.8%% PIS in First Year 95.8%% Operating in First Year 95.8%
DEVELOPMENT SCHEDULE
Closing 2Q 2019
Construction start May 2019 17 months construction
Construction completion October 2020 4Q 2020
Placed in service 4Q 2020
Qualified occupancy 1Q 2021
Permanent conversion 3Q 2021July 2021
Lease Up/Mo Bldg. PIS by Month Completed Lease Up/Mo
Bldg. PIS by Month
March 2021
Completed Lease Up/Mo
v 2.27 (pre-closing)
March 28, 2019
Lease Up/Mo
October 2020
April 2019
28 of 119 April 2, 2019, Item # 4.1
Villa de Vida - Poway67.932 PAGE 8 55-Year Cash Flow (True Debt)Attachment 5BVersion:Revised:ASSUMPTIONS:Perm Loan - % Debt Svc Yr 00.00% Rent Increase:2.50%Perm Loan - % Debt Svc Yr 141.67%Year 1 income @ current HAP rents:83.33%10 mos @ post-rehab rentsTransition Expenses Increase:3.50%Perm Loan - % Debt Svc Yr 2100.00%Year 1 income @ MUB HAP rents:16.67%2 mos @ post-rehab rentsReserve Reserve Increase:0.00%Percent Lease-up Yr 1100.00% 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2018201920202021202220232024202520262027202820292030203120322033203420352036203720382039204020412042GROSS POTENTIAL INCOME - SPECIAL NEEDS27,512 324,298 346,858 355,529 364,417 373,528 382,866 392,437 402,248 412,305 422,612 433,178 444,007 455,107 466,485 478,147 490,101 502,353 514,912 527,785 540,979 554,504 568,366 GROSS POTENTIAL INCOME - SPECIAL NEEDS (NON-TCAC)13,390 157,835 168,814 173,035 177,361 181,795 186,340 190,998 195,773 200,667 205,684 210,826 216,097 221,499 227,037 232,713 238,530 244,494 250,606 256,871 263,293 269,875 276,622 Section 8 Premium 42,257 498,104 532,755 546,074 559,726 573,719 588,062 602,764 617,833 633,278 649,110 665,338 681,972 699,021 716,496 734,409 752,769 771,588 790,878 810,650 830,916 851,689 872,981 Misc. Income356 4,190 4,482 4,594 4,709 4,827 4,947 5,071 5,198 5,328 5,461 5,597 5,737 5,881 6,028 6,178 6,333 6,491 6,654 6,820 6,990 7,165 7,344 Vacancy Loss - Special Needs5.0%(573)(16,215)(17,343)(17,776)(18,221)(18,676)(19,143)(19,622)(20,112)(20,615)(21,131)(21,659)(22,200)(22,755)(23,324)(23,907)(24,505)(25,118)(25,746)(26,389)(27,049)(27,725)(28,418)Vacancy Loss - Section 8 Premium5.0%(880)(24,905)(26,638)(27,304)(27,986)(28,686)(29,403)(30,138)(30,892)(31,664)(32,456)(33,267)(34,099)(34,951)(35,825)(36,720)(37,638)(38,579)(39,544)(40,532)(41,546)(42,584)(43,649)Vacancy Loss - Misc & non-SN5.0%(286)(8,101)(8,665)(8,881)(9,103)(9,331)(9,564)(9,803)(10,049)(10,300)(10,557)(10,821)(11,092)(11,369)(11,653)(11,945)(12,243)(12,549)(12,863)(13,185)(13,514)(13,852)(14,198)GROSS EFFECTIVE INCOME 81,775 935,206 1,000,265 1,025,272 1,050,905 1,077,178 1,104,109 1,131,712 1,160,006 1,189,007 1,218,733 1,249,202 1,280,433 1,312,445 1,345,256 1,378,888 1,413,361 1,448,696 1,484,914 1,522,037 1,560,089 1,599,092 1,639,069 TOTAL OPERATING EXPENSES 42,079 500,839 540,906 559,838 579,433 599,713 620,703 642,427 664,912 688,184 712,271 737,200 763,002 789,707 817,347 845,954 875,562 906,207 937,924 970,752 1,004,728 1,039,893 1,076,290 REAL ESTATE TAXES2.00%2,500 2,550 2,601 2,653 2,706 2,760 2,815 2,872 2,929 2,988 3,047 3,108 3,171 3,234 3,299 3,365 3,432 3,501 3,571 3,642 3,715 3,789 3,865 SUPPORTIVE SERVICES EXPENSES2.00%7,917 92,863 98,838 100,815 102,831 104,888 106,985 109,125 111,308 113,534 115,804 118,121 120,483 122,893 125,350 127,857 130,415 133,023 135,683 138,397 141,165 143,988 146,868 Annual Monitoring Fee (SD HCD)1.00%0 4,000 4,040 4,080 4,121 4,162 4,204 4,246 4,289 4,331 4,375 4,418 4,463 4,507 4,552 4,598 4,644 4,690 4,737 4,785 4,832 4,881 4,930 NET OPERATING INCOME29,279 334,954 353,879 357,886 361,814 365,656 369,401 373,042 376,569 379,970 383,236 386,355 389,315 392,103 394,708 397,114 399,308 401,275 402,998 404,462 405,649 406,540 407,117 REPLACEMENT RESERVE1,688 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 NET INCOME AVAILABLE FOR DEBT SERVICE27,592 314,704 333,629 337,636 341,564 345,406 349,151 352,792 356,319 359,720 362,986 366,105 369,065 371,853 374,458 376,864 379,058 381,025 382,748 384,212 385,399 386,290 386,867 CCRC Permanent Loan Debt Service0112,982271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,1580000000 Principal052,408137,427144,732152,425160,526169,059178,045187,508197,475207,971219,025230,667242,927255,840269,438283,760298,842314,726331,455-1,159,84700 Interest5.190%060,574133,731126,426118,733110,632102,09993,11383,65073,68363,18752,13340,49128,23115,3181,720-283,760-298,842-314,726-331,4551,159,84700TOTAL DEBT SERVICE0112,982271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,158271,1580000000NET CASH FLOW27,592 201,721 62,471 66,478 70,406 74,248 77,993 81,634 85,161 88,562 91,828 94,947 97,907 100,695 103,300 105,706 379,058 381,025 382,748 384,212 385,399 386,290 386,867 27,592 0 Debt Service Coverage RatioN/A2.791.231.251.261.271.291.301.311.331.341.351.361.371.381.39#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!CHECKCHECKDISTRIBUTION OF CASH FLOWLP/PM fees limited by City of Poway as belowLP Investor Services Fee - Current3%7,500 7,500 7,725 7,957 8,195 8,441 8,695 8,955 9,224 9,501 9,786 10,079 10,382 10,693 11,014 11,344 11,685 LP Investor Services Fee - Deferred0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Deferred Developer Fee20,092 193,996 54,514 58,282 61,965 65,553 69,038 72,410 4,149 0 0 0 0 0 0 0 0 0 0 0 0 0 0 600,000 Partnership Management Fee3%12,500 0 0 0 0 0 0 0 0 15,835 16,310 16,799 17,303 17,822 18,357 18,907 19,475 0 0 0 0 0 0 0 Partnership Management Fee - Deferred0 0 0 0 0 0 0 0 55,676 55,478 0 0 0 0 0 0 0 0 0 0 0 0 0 City Land Loan19.58%0 0 0 0 0 0 0 0 0 1,368 12,717 13,169 13,586 13,965 14,302 14,596 74,217 74,602 74,940 75,226 75,459 75,633 75,746 SD County IHTF NOFA24.98%0 0 0 0 0 0 0 0 0 1,746 16,226 16,803 17,335 17,818 18,249 18,623 94,696 95,187 95,618 95,983 96,280 96,502 96,647 City of Poway5.44%0 0 0 0 0 0 0 0 0 380 3,532 3,658 3,774 3,879 3,973 4,054 20,616 20,723 20,817 20,896 20,961 21,009 21,041 General Partner90.00%0 0 0 0 0 0 0 0 0 3,145 29,227 30,268 31,226 32,096 32,872 33,546 170,576 171,461 172,237 172,895 173,429 173,830 174,090 Limited Partner10.00%0 0 0 0 0 0 0 0 0 349 3,247 3,363 3,470 3,566 3,652 3,727 18,953 19,051 19,137 19,211 19,270 19,314 19,343 v 2.27 (pre-closing)March 28, 201929 of 119April 2, 2019, Item # 4.1
Villa de Vida - Poway55-Year Cash Flow (True Debt)ASSUMPTIONS:Perm Loan - % Debt Svc Yr 0 Rent Increase:2.50%Perm Loan - % Debt Svc Yr 1 Expenses Increase:3.50%Perm Loan - % Debt Svc Yr 2 Reserve Increase:0.00%Percent Lease-up Yr 1 20182019GROSS POTENTIAL INCOME - SPECIAL NEEDSGROSS POTENTIAL INCOME - SPECIAL NEEDS (NON-TCAC)Section 8 Premium Misc. IncomeVacancy Loss - Special Needs5.0%Vacancy Loss - Section 8 Premium5.0%Vacancy Loss - Misc & non-SN5.0%GROSS EFFECTIVE INCOME TOTAL OPERATING EXPENSES REAL ESTATE TAXES2.00%SUPPORTIVE SERVICES EXPENSES2.00%Annual Monitoring Fee (SD HCD)1.00%NET OPERATING INCOMEREPLACEMENT RESERVENET INCOME AVAILABLE FOR DEBT SERVICE CCRC Permanent Loan Debt Service Principal Interest5.190%TOTAL DEBT SERVICENET CASH FLOWDebt Service Coverage RatioDISTRIBUTION OF CASH FLOWLP/PM fees limited by City of Poway as belowLP Investor Services Fee - Current3%7,500 LP Investor Services Fee - DeferredDeferred Developer Fee600,000 Partnership Management Fee3%12,500 Partnership Management Fee - DeferredCity Land Loan19.58%SD County IHTF NOFA24.98%City of Poway5.44%General Partner90.00%Limited Partner10.00%23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 2043204420452046204720482049205020512052205320542055205620572058205920602061582,576 597,140 612,069 627,370 643,054 659,131 675,609 692,499 709,812 727,557 745,746 764,390 783,499 803,087 823,164 843,743 864,837 886,458 908,619 283,538 290,626 297,892 305,339 312,973 320,797 328,817 337,037 345,463 354,100 362,952 372,026 381,327 390,860 400,631 410,647 420,913 431,436 442,222 894,806 917,176 940,105 963,608 987,698 1,012,391 1,037,700 1,063,643 1,090,234 1,117,490 1,145,427 1,174,063 1,203,414 1,233,500 1,264,337 1,295,946 1,328,344 1,361,553 1,395,592 7,528 7,716 7,909 8,107 8,309 8,517 8,730 8,948 9,172 9,401 9,636 9,877 10,124 10,377 10,637 10,903 11,175 11,454 11,741 (29,129)(29,857)(30,603)(31,369)(32,153)(32,957)(33,780)(34,625)(35,491)(36,378)(37,287)(38,219)(39,175)(40,154)(41,158)(42,187)(43,242)(44,323)(45,431)(44,740)(45,859)(47,005)(48,180)(49,385)(50,620)(51,885)(53,182)(54,512)(55,874)(57,271)(58,703)(60,171)(61,675)(63,217)(64,797)(66,417)(68,078)(69,780)(14,553)(14,917)(15,290)(15,672)(16,064)(16,466)(16,877)(17,299)(17,732)(18,175)(18,629)(19,095)(19,573)(20,062)(20,563)(21,077)(21,604)(22,145)(22,698)1,680,047 1,722,048 1,765,100 1,809,228 1,854,459 1,900,821 1,948,341 1,997,050 2,046,977 2,098,152 2,150,606 2,204,371 2,259,480 2,315,967 2,373,867 2,433,214 2,494,044 2,556,395 2,620,305 1,113,960 1,152,948 1,193,302 1,235,067 1,278,295 1,323,035 1,369,341 1,417,268 1,466,872 1,518,213 1,571,350 1,626,348 1,683,270 1,742,184 1,803,161 1,866,271 1,931,591 1,999,197 2,069,168 3,942 4,021 4,102 4,184 4,267 4,353 4,440 4,528 4,619 4,711 4,806 4,902 5,000 5,100 5,202 5,306 5,412 5,520 5,631 149,805 152,802 155,858 158,975 162,154 165,397 168,705 172,079 175,521 179,031 182,612 186,264 189,990 193,789 197,665 201,618 205,651 209,764 213,959 4,979 5,029 5,079 5,130 5,181 5,233 5,285 5,338 5,391 5,445 5,500 5,555 5,610 5,666 5,723 5,780 5,838 5,896 5,955 407,360 407,248 406,760 405,873 404,562 402,803 400,570 397,837 394,573 390,751 386,338 381,303 375,611 369,228 362,116 354,238 345,552 336,018 325,592 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 387,110 386,998 386,510 385,623 384,312 382,553 380,320 377,587 374,323 370,501 366,088 361,053 355,361 348,978 341,866 333,988 325,302 315,768 305,342 0000000000000000000000000000000000000000000000000000000000000000000000000000387,110 386,998 386,510 385,623 384,312 382,553 380,320 377,587 374,323 370,501 366,088 361,053 355,361 348,978 341,866 333,988 325,302 315,768 305,342 #DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!#DIV/0!0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 75,794 75,772 75,676 75,503 75,246 74,902 74,464 73,929 73,290 72,542 71,678 70,692 69,578 68,328 66,935 65,393 63,692 61,826 59,784 96,707 96,679 96,557 96,336 96,008 95,569 95,011 94,328 93,513 92,558 91,456 90,198 88,776 87,181 85,405 83,436 81,267 78,885 76,280 21,054 21,048 21,021 20,973 20,902 20,806 20,685 20,536 20,358 20,151 19,911 19,637 19,327 18,980 18,593 18,165 17,692 17,174 16,607 174,200 174,149 173,930 173,530 172,940 172,149 171,144 169,914 168,445 166,725 164,740 162,474 159,912 157,040 153,840 150,294 146,386 142,096 137,404 19,356 19,350 19,326 19,281 19,216 19,128 19,016 18,879 18,716 18,525 18,304 18,053 17,768 17,449 17,093 16,699 16,265 15,788 15,267 30 of 119April 2, 2019, Item # 4.1
Villa de Vida - Poway55-Year Cash Flow (True Debt)ASSUMPTIONS:Perm Loan - % Debt Svc Yr 0 Rent Increase:2.50%Perm Loan - % Debt Svc Yr 1 Expenses Increase:3.50%Perm Loan - % Debt Svc Yr 2 Reserve Increase:0.00%Percent Lease-up Yr 1 20182019GROSS POTENTIAL INCOME - SPECIAL NEEDSGROSS POTENTIAL INCOME - SPECIAL NEEDS (NON-TCAC)Section 8 Premium Misc. IncomeVacancy Loss - Special Needs5.0%Vacancy Loss - Section 8 Premium5.0%Vacancy Loss - Misc & non-SN5.0%GROSS EFFECTIVE INCOME TOTAL OPERATING EXPENSES REAL ESTATE TAXES2.00%SUPPORTIVE SERVICES EXPENSES2.00%Annual Monitoring Fee (SD HCD)1.00%NET OPERATING INCOMEREPLACEMENT RESERVENET INCOME AVAILABLE FOR DEBT SERVICE CCRC Permanent Loan Debt Service Principal Interest5.190%TOTAL DEBT SERVICENET CASH FLOWDebt Service Coverage RatioDISTRIBUTION OF CASH FLOWLP/PM fees limited by City of Poway as belowLP Investor Services Fee - Current3%7,500 LP Investor Services Fee - DeferredDeferred Developer Fee600,000 Partnership Management Fee3%12,500 Partnership Management Fee - DeferredCity Land Loan19.58%SD County IHTF NOFA24.98%City of Poway5.44%General Partner90.00%Limited Partner10.00%42 43 44 45 46 47 48 49 50 51 52 53 54 55 20622063206420652066206720682069207020712072207320742075931,335 954,618 978,483 1,002,946 1,028,019 1,053,720 1,080,063 1,107,064 1,134,741 1,163,109 1,192,187 1,221,992 1,252,542 1,283,855 453,278 464,609 476,225 488,130 500,334 512,842 525,663 538,805 552,275 566,081 580,234 594,739 609,608 624,848 1,430,482 1,466,244 1,502,900 1,540,472 1,578,984 1,618,459 1,658,920 1,700,393 1,742,903 1,786,475 1,831,137 1,876,916 1,923,839 1,971,935 12,034 12,335 12,644 12,960 13,284 13,616 13,956 14,305 14,663 15,029 15,405 15,790 16,185 16,590 (46,567)(47,731)(48,924)(50,147)(51,401)(52,686)(54,003)(55,353)(56,737)(58,155)(59,609)(61,100)(62,627)(64,193)(71,524)(73,312)(75,145)(77,024)(78,949)(80,923)(82,946)(85,020)(87,145)(89,324)(91,557)(93,846)(96,192)(98,597)(23,266)(23,847)(24,443)(25,054)(25,681)(26,323)(26,981)(27,655)(28,347)(29,056)(29,782)(30,526)(31,290)(32,072)2,685,813 2,752,958 2,821,782 2,892,326 2,964,634 3,038,750 3,114,719 3,192,586 3,272,401 3,354,211 3,438,066 3,524,017 3,612,117 3,702,420 2,141,589 2,216,545 2,294,124 2,374,418 2,457,523 2,543,536 2,632,560 2,724,700 2,820,064 2,918,766 3,020,923 3,126,656 3,236,088 3,349,352 5,743 5,858 5,975 6,095 6,217 6,341 6,468 6,597 6,729 6,864 7,001 7,141 7,284 7,429 218,238 222,603 227,055 231,596 236,228 240,953 245,772 250,687 255,701 260,815 266,031 271,352 276,779 282,314 6,015 6,075 6,136 6,197 6,259 6,322 6,385 6,449 6,513 6,579 6,644 6,711 6,778 6,846 314,227 301,877 288,492 274,020 258,408 241,598 223,534 204,154 183,394 161,187 137,466 112,158 85,188 56,479 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 20,250 293,977 281,627 268,242 253,770 238,158 221,348 203,284 183,904 163,144 140,937 117,216 91,908 64,938 36,229 293,977 281,627 268,242 253,770 238,158 221,348 203,284 183,904 163,144 140,937 117,216 91,908 64,938 36,229 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 57,559 55,141 52,520 49,687 46,630 43,339 39,802 36,007 31,943 27,595 22,950 17,995 12,715 7,093 73,441 70,356 67,012 63,396 59,496 55,297 50,784 45,943 40,756 35,209 29,283 22,960 16,223 9,051 15,989 15,317 14,589 13,802 12,953 12,039 11,056 10,002 8,873 7,665 6,375 4,999 3,532 1,970 132,290 126,732 120,709 114,196 107,171 99,607 91,478 82,757 73,415 63,422 52,747 41,359 29,222 16,303 14,699 14,081 13,412 12,688 11,908 11,067 10,164 9,195 8,157 7,047 5,861 4,595 3,247 1,811 31 of 119April 2, 2019, Item # 4.1
C-1
1552\12\2547457.7
ATTACHMENT C
FORM OF AUTHORITY PROMISSORY NOTE
The attached Form of Promissory Note hereby supersedes the Promissory Note attached as
Exhibit F of the Original DDA.
22 of 119 April 2, 2019, Item # 4.132 of 119 April 2, 2019, Item # 4.1
1552\12\1949060.8 1
PROMISSORY NOTE
(Villa de Vida)
$3,450,000 Poway, California
April __, 2019
FOR VALUE RECEIVED, VILLA DE VIDA POWAY, L.P., a California limited partnership
("Borrower"), promises to pay to THE POWAY HOUSING AUTHORITY, a public body,
corporate and politic ("Holder") the principal sum of Three Million Four Hundred Fifty
Thousand Dollars ($3,450,000) or so much thereof as is disbursed pursuant to the DDLA (as
defined in Section 1 below). All capitalized terms used but not defined in this Note have the
meanings set forth in the DDLA.
1. Borrower's Obligation. This Note evidences the Borrower's obligation to pay the
Holder the principal amount of Three Million Four Hundred Fifty Thousand Dollars
($3,450,000) for the funds loaned to Borrower by Holder (the "Loan"). The Borrower intends to
use Two Million Seven Hundred Thousand Dollars ($2,700,000) of the Loan funds to finance
land acquisition costs for the Development and Seven Hundred Fifty Thousand Dollars
($750,000) of the Loan funds to finance related construction costs of the Development, pursuant
to that certain Disposition, Development and Loan Agreement dated as of October 4, 2016, and
recorded in the Official Records of San Diego County, California (the "Official Records") on
April 10, 2017, as Document No. 2017-016002, as amended by that certain First Amendment to
the Land Disposition, Development and Loan Agreement dated as of June 20, 2017, and
recorded in the Official Records on July 10, 2017, as Document No. 2017-03098, as further
amended by that certain Second Amendment to the Land Disposition, Development and Loan
Agreement dated as of February 6, 2018, and recorded in the Official Records on
March 22, 2018, as Document No. 2018-0113457, as further amended by that certain Third
Amendment to the Land Disposition, Development and Loan Agreement dated as of
April 2, 2019, as such may be amended from time to time, by and between Borrower and Holder
(collectively, the "DDLA ").
2. Interest. The Loan will bear simple interest at three percent (3%) per annum;
provided, however, in the event of an uncured Developer Event of Default under the Authority
Documents and the failure of the Borrower to cure the same within the time specified in the
Authority Documents, interest shall accrue following the Developer Event of Default at the
default rate of the lesser of ten percent (10%), compounded annually, or the highest rate
permitted by law.
3. Term and Repayment Requirements. Payments due under this Note are due in
accordance with this Note and as set forth in Section 4.5 of the DDLA. In any event, the unpaid
principal balance is due and payable not later than the expiration of the Term of the DDLA.
Repayment of this Note shall be non-recourse to the Borrower pursuant to Section 4.10 of the
DDLA
4. No Assumption. This Note is not assumable by the successors and assigns of
Borrower without the prior written consent of the Holder except as provided in the DDLA.
33 of 119 April 2, 2019, Item # 4.1
1552\12\1949060.8 2
5. Security. This Note is secured by the Assignment of Collateral Documents, dated
concurrently with the DDLA (the "Assignment") and the Loan Deed of Trust executed
concurrently herewith.
6. Terms of Payment.
(a) Borrower shall make all payments due under this Note in currency of the
United States of America to Holder at the Poway Housing Authority, 13325 Civic Center Drive,
Poway, CA 92064, Attention: Executive Director, or such other place as Holder may from time
to time designate.
(b) All payments on this Note are without expense to Holder. Borrower shall
pay all costs and expenses, including reconveyance fees and reasonable attorney's fees of Holder,
incurred in connection with the payment of this Note and the release of any security hereof.
(c) The obligations of Borrower under this Note are absolute and Borrower
waives any and all rights to offset, deduct or withhold any payments or charges due under this
Note for any reason whatsoever.
7. Default.
(a) Upon the occurrence of an uncured Developer Event of Default, the entire
unpaid principal balance, and together with all other sums then payable under this Note, will, at
the option of the Holder, become immediately due and payable upon written notice by the Holder
to the Borrower without further demand.
(b) The Holder's failure to exercise the remedy set forth in subsection 7(a)
above or any other remedy provided by law upon the occurrence of an uncured Developer Event
of Default will not constitute a waiver of the right to exercise any remedy at any subsequent time
in respect to the same or any other uncured Developer Event of Default. The acceptance by
Holder hereof of any payment which is less than the total of all amounts due and payable at the
time of such payment will not constitute a waiver of the right to exercise any of the foregoing
remedies or options at that time or at any subsequent time, or nullify any prior exercise of any
such remedy or option, without the express consent of the Holder, except as and to the extent
otherwise provided by law.
8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and
notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.
Borrower expressly agrees that this Note or any payment hereunder may be extended from time
to time, and that Holder may accept further security or release any security for this Note, all
without in any way affecting the liability of Borrower.
(b) Any extension of time for payment of this Note or any installment hereof
made by agreement of Holder with any person now or hereafter liable for payment of this Note
34 of 119 April 2, 2019, Item # 4.1
1552\12\1949060.8 3
must not operate to release, discharge, modify, change or affect the original liability of Borrower
under this Note, either in whole or in part.
9. Miscellaneous Provisions.
(a) All notices to Holder or Borrower are to be given in the manner and at the
addresses set forth in the DDLA, or to such addresses as Holder or Borrower may therein
designate.
(b) Borrower promises to pay all costs and expenses, including reasonable
attorney's fees, incurred by Holder in the enforcement of the provisions of this Note, regardless
of whether suit is filed to seek enforcement.
(c) This Note is governed by the laws of the State of California.
(d) The times for the performance of any obligations hereunder are to be
strictly construed, time being of the essence.
(e) The Authority Documents, of which this Note is a part, contain the entire
agreement between the parties as to the Loan. This Note may not be modified except upon the
written consent of the parties.
This Note replaces, supersedes, and makes null and void any previously executed promissory
note in favor of the Lender.
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IN WITNESS WHEREOF, this Promissory Note is executed by Borrower as of the day and year
written below and is effective as of the date first written above.
DEVELOPER:
VILLA DE VIDA POWAY, L.P., a California limited partnership
By: Villa de Vida GP, LLC, a California limited liability
company, its Managing General Partner
By: Mercy Housing Calwest, a California nonprofit
public benefit corporation, its sole member and
manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
By: VDV POWAY LLC, a California limited liability
company, its Administrative General Partner
By: Villa de Vida, Inc., a California nonprofit public
benefit corporation, its sole member and manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
36 of 119 April 2, 2019, Item # 4.1
D-1
1552\12\2547457.7
ATTACHMENT D
FORM OF AUTHORITY DEED OF TRUST
The attached Form of Authority Deed of Trust hereby supersedes the Authority Deed of Trust
attached as Exhibit G of the Original DDA.
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1552\12\1949162.11 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Poway Housing Authority
13325 Civic Center Drive
Poway, CA 92064
Attention: Attention: Executive Director
NO FEE FOR RECORDING PURSUANT
TO GOVERNMENT CODE
SECTIONS 6103 AND 27383
APN: 317-152-14-00
(Space above this line for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT, AND FIXTURE FILING
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT, AND FIXTURE FILING ("Deed of Trust") is made as of April __, 2019, by and
among Villa de Vida Poway, L.P., a California limited partnership ("Trustor"), Commonwealth
Land Title Company, a California corporation ("Trustee"), and the Poway Housing Authority, a
public body, corporate and politic ("Beneficiary").
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF
SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions
hereinafter set forth, Trustor's fee interest in the property located in the City of Poway, County of
San Diego, State of California, that is described in the attached Exhibit A, incorporated herein by
this reference (the "Property").
TOGETHER WITH all interest, estates or other claims, both in law and in equity which
Trustor now has or may hereafter acquire in the Property and the rents;
TOGETHER WITH all easements, rights-of-way and rights used in connection therewith
or as a means of access thereto, including (without limiting the generality of the foregoing) all
tenements, hereditaments and appurtenances thereof and thereto;
TOGETHER WITH any and all buildings and improvements of every kind and
description now or hereafter erected thereon, and all property of the Trustor now or hereafter
affixed to or placed upon the Property;
38 of 119 April 2, 2019, Item # 4.1
1552\12\1949162.11 2
TOGETHER WITH all building materials and equipment now or hereafter delivered to
said Property and intended to be installed therein;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street, open or proposed,
adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to
or used in connection with the Property;
TOGETHER WITH all estate, interest, right, title, other claim or demand, of every
nature, in and to such property, including the Property, both in law and in equity, including, but
not limited to, all deposits made with or other security given by Trustor to utility companies, the
proceeds from any or all of such property, including the Property, claims or demands with
respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may
hereafter acquire, any and all awards made for the taking by eminent domain or by any
proceeding or purchase in lieu thereof of the whole or any part of such property, including
without limitation, any awards resulting from a change of grade of streets and awards for
severance damages to the extent Beneficiary has an interest in such awards for taking as
provided in Paragraph 4.1 herein;
TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures
now or hereafter attached to or used in and about the building or buildings now erected or
hereafter to be erected on the Property which are necessary to the complete and comfortable use
and occupancy of such building or buildings for the purposes for which they were or are to be
erected, including all other goods and chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the one herein
described and referred to, and all renewals or replacements thereof or articles in substitution
therefor, whether or not the same are, or will be, attached to said building or buildings in any
manner; and
TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment,
work in process and other personal property to be incorporated into the Property; all goods,
materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other
personal property now or hereafter appropriated for use on the Property, whether stored on the
Property or elsewhere, and used or to be used in connection with the Property; all rents, issues
and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles,
chattel paper, instruments, documents, notes drafts, letters of credit, insurance policies, insurance
and condemnation awards and proceeds, trade names, trademarks and service marks arising from
or related to the Property and any business conducted thereon by Trustor; all replacements,
additions, accessions and proceeds; and all books, records and files relating to any of the
foregoing.
All of the foregoing, together with the Property, is herein referred to as the "Security."
To have and to hold the Security together with acquittances to the Trustee, its successors and
assigns forever.
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FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS (collectively, the
"Secured Obligations"):
A. Payment of just indebtednesses of Trustor to Beneficiary of all sums at any time
owing under, or in connection with, the Authority Promissory Note (defined in Article 1 below)
until paid or cancelled and any other amounts owing under the Authority Documents. Said
principal and other payments are due and payable as provided in the Authority Promissory Note.
The Authority Promissory Note and all its terms are incorporated herein by reference, and this
conveyance secures any and all extensions thereof, however evidenced;
B. Payment of any sums advanced by Beneficiary to protect the Security pursuant to
the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to
advance said sums and the expiration of any applicable cure period, with interest thereon as
provided herein;
C. Performance of every obligation, covenant or agreement of Trustor contained
herein and in the Authority Documents (defined in Article 1 below); and
D. All modifications, extensions and renewals of any of the Secured Obligations
(including without limitation: (1) modifications, extensions or renewals at a different rate of
interest; or (2) deferrals or accelerations of the required principal payment dates or interest
payment dates or both, in whole or in part), however evidenced, whether or not any such
modification, extension or renewal is evidenced by a new or additional promissory note or notes
(defined in Article 1 below).
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
ARTICLE 1:
DEFINITIONS
Section 1.1 Definitions. In addition to the terms defined elsewhere in this Deed of
Trust, the following terms have the following meanings in this Deed of Trust:
(a) "Authority Documents" means this Deed of Trust, the Authority
Promissory Note, the Authority Regulatory Agreement, the Disposition and Loan Agreement,
and any other debt, loan or security instruments between Trustor and the Beneficiary relating to
the Property.
(b) "Authority Loan" means the loan made by the Beneficiary to the Trustor
in the amount of up to Three Million Four Hundred Fifty Thousand Dollars ($3,450,000).
(c) "Authority Promissory Note" means that certain promissory note in the
amount of Three Million Four Hundred Fifty Thousand Dollars ($3,450,000) dated as of April 2,
2019, herewith executed by the Trustor in favor of the Beneficiary, the payment of which is
secured by this Deed of Trust. (A copy of the Authority Promissory Note is on file with the
40 of 119 April 2, 2019, Item # 4.1
1552\12\1949162.11 4
Beneficiary and terms and provisions of the Authority Promissory Note are incorporated herein
by reference.)
(d) "Authority Regulatory Agreement" means that certain Regulatory
Agreement and Declaration of Restrictive Covenants that will be recorded in the Official
Records against the Developer's fee interest of the Property upon the Close of Escrow securing
the Authority's interest in the Authority Loan.
(e) "Disposition and Loan Agreement" means that certain Disposition,
Development and Loan Agreement between Trustor and Beneficiary, as of October 4, 2016, and
recorded in the Official Records of San Diego County, California (the "Official Records") on
April 10, 2017, as Document No. 2017-016002, as amended by that certain First Amendment to
the Land Disposition, Development and Loan Agreement dated as of June 20, 2017, and
recorded in the Official Records on July 10, 2017, as Document No. 2017-03098, as further
amended by that certain Second Amendment to the Land Disposition, Development and Loan
Agreement dated as of February 6, 2018, and recorded in the Official Records on
March 22, 2018, as Document No. 2018-0113457, as further amended by that certain Third
Amendment to the Land Disposition, Development and Loan Agreement dated as of
April 2, 2019, as such may be amended from time to time, providing for the Beneficiary to make
the Authority Loan.
(f) "Principal" means the aggregate of the amounts required to be paid under
the Authority Promissory Note.
ARTICLE 2:
MAINTENANCE AND MODIFICATION OF THE PROPERTY AND SECURITY
Section 2.1 Maintenance and Modification of the Property by Trustor.
(a) The Trustor agrees that at all times prior to full payment of the sum owed
and performance of the Secured Obligations under the Authority Promissory Note, the Trustor
will, at the Trustor's own expense, maintain, preserve and keep the Security or cause the Security
to be maintained and preserved in good condition. The Trustor will from time to time make or
cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The
Beneficiary has no responsibility in any of these matters or for the making of improvements or
additions to the Security.
(b) Trustor agrees to pay fully and discharge (or cause to be paid fully and
discharged) all claims for labor done and for material and services furnished in connection with
the Security, diligently to file or procure the filing of a valid notice of cessation upon the event of
a cessation of labor on the work or construction on the Security for a continuous period of thirty
(30) days or more, and to take all other reasonable steps to forestall the assertion of claims of lien
against the Security or any part thereof. Trustor irrevocably appoints, designates and authorizes
Beneficiary as its agent (said agency being coupled with an interest) with the authority, but
without any obligation, to file or record any notices of completion or cessation of labor or any
other notice that Beneficiary deems necessary or desirable to protect its interest in and to the
41 of 119 April 2, 2019, Item # 4.1
1552\12\1949162.11 5
Security or the Authority Documents; provided, however, that Beneficiary exercises its rights as
agent of Trustor only in the event that Trustor fails to take, or fails to diligently continue to take,
those actions as hereinbefore provided.
(c) Upon demand by Beneficiary, Trustor shall make or cause to be made
such demands or claims as Beneficiary specifies upon laborers, materialmen, subcontractors or
other persons who have furnished or claim to have furnished labor, services or materials in
connection with the Security. Nothing herein contained requires Trustor to pay any claims for
labor, materials or services which Trustor in good faith disputes and is diligently contesting
provided that Trustor shall, within thirty (30) days after the filing of any claim of lien, record in
the Office of the Recorder of the County of San Diego, a surety bond in an amount equal to the
amount of such claim item to protect against a claim of lien, or to provide other form of security
acceptable to the Beneficiary at the Beneficiary's sole and absolute discretion.
Section 2.2 Granting of Easements. Trustor may not grant easements, licenses, rights-
of-way or other rights or privileges in the nature of easements with respect to any property or
rights included in the Security except those required or desirable for installation and maintenance
of public utilities, including, without limitation, water, gas, electricity, sewer, telephone, or those
required by law and as approved, in writing, by Beneficiary.
Section 2.3 Assignment of Rents.
(a) Subject to the rights of any approved senior mortgage lender, as part of the
consideration for the indebtedness evidenced by the Authority Promissory Note, Trustor hereby
absolutely and unconditionally assigns and transfers to Beneficiary all the rents and revenues of
the Property including those now due, past due, or to become due by virtue of any lease or other
agreement for the occupancy or use of all or any part of the Property, regardless of to whom the
rents and revenues of the Property are payable. Trustor hereby authorizes Beneficiary or
Beneficiary's agents to collect the aforesaid rents and revenues and hereby directs each tenant of
the Property to pay such rents to Beneficiary or Beneficiary's agents; provided, however, that
prior to written notice given by Beneficiary to Trustor of the breach by Trustor of any covenant
or agreement of Trustor in the Authority Documents, Trustor shall collect and receive all rents
and revenues of the Property as trustee for the benefit of Beneficiary and Trustor to apply the
rents and revenues so collected to the Secured Obligations with the balance, so long as no such
breach has occurred, to the account of Trustor, it being intended by Trustor and Beneficiary that
this assignment of rents constitutes an absolute assignment and not an assignment for additional
security only. Upon delivery of written notice by Beneficiary to Trustor of the breach by Trustor
of any covenant or agreement of Trustor in the Authority Documents, and without the necessity
of Beneficiary entering upon and taking and maintaining full control of the Property in person,
by agent or by a court-appointed receiver, Beneficiary shall immediately be entitled to
possession of all rents and revenues of the Property as specified in this Section as the same
becomes due and payable, including but not limited to rents then due and unpaid, and all such
rents will, immediately upon delivery of such notice, be held by Trustor as trustee for the benefit
of Beneficiary only; provided, however, that the written notice by Beneficiary to Trustor of the
breach by Trustor contains a statement that Beneficiary exercises its rights to such rents. Trustor
agrees that commencing upon delivery of such written notice of Trustor's breach by Beneficiary
to Trustor, each tenant of the Property shall make such rents payable to and pay such rents to
42 of 119 April 2, 2019, Item # 4.1
1552\12\1949162.11 6
Beneficiary or Beneficiary's agents on Beneficiary's written demand to each tenant thereof,
delivered to each tenant personally, by mail or by delivering such demand to each rental unit,
without any liability on the part of said tenant to inquire further as to the existence of a default by
Trustor.
(b) Subject to the rights of any approved senior mortgage lender, the Trustor
hereby covenants that Trustor has not executed any prior assignment of said rents, that Trustor
has not performed, and will not perform, any acts or has not executed and will not execute, any
instrument which would prevent Beneficiary from exercising its rights under this Section, and
that at the time of execution of this Deed of Trust, there has been no anticipation or prepayment
of any of the rents of the Property for more than two (2) months prior to the due dates of such
rents. Trustor covenants that Trustor will not hereafter collect or accept payment of any rents of
the Property more than two (2) months prior to the due dates of such rents. Trustor further
covenants that Trustor will execute and deliver to Beneficiary such further assignments of rents
and revenues of the Property as Beneficiary may from time to time request.
(c) Upon Trustor's breach of any covenant or agreement of Trustor in the
Authority Documents, after applicable notice and cure periods, Beneficiary may in person, by
agent or by a court-appointed receiver, regardless of the adequacy of Beneficiary's security, enter
upon and take and maintain full control of the Property in order to perform all acts necessary and
appropriate for the operation and maintenance thereof including, but not limited to, the
execution, cancellation or modification of leases, the collection of all rents and revenues of the
Property, the making of repairs to the Property and the execution or termination of contracts
providing for the management or maintenance of the Property, all on such terms as are deemed
best to protect the security of this Deed of Trust. In the event Beneficiary elects to seek the
appointment of a receiver for the Property upon Trustor's breach of any covenant or agreement of
Trustor in this Deed of Trust, Trustor hereby expressly consents to the appointment of such
receiver. Beneficiary or the receiver will be entitled to receive a reasonable fee for so managing
the Property.
(d) All rents and revenues collected subsequent to delivery of written notice
by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the
Authority Documents after applicable notice and cure periods, are to be applied first to the costs,
if any, of taking control of and managing the Property and collecting the rents, including, but not
limited to, attorney's fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the
Property, premiums on insurance policies, taxes, assessments and other charges on the Property,
and the costs of discharging any obligation or liability of Trustor as lessor or landlord of the
Property and then to the sums secured by this Deed of Trust. Beneficiary or the receiver is to
have access to the books and records used in the operation and maintenance of the Property and
will be liable to account only for those rents actually received. Beneficiary is not liable to
Trustor, anyone claiming under or through Trustor or anyone having an interest in the Property
by reason of anything done or left undone by Beneficiary under this Section.
(e) If the rents of the Property are not sufficient to meet the costs, if any, of
taking control of and managing the Property and collecting the rents, any funds expended by
Beneficiary for such purposes will become part of the Secured Obligations. Unless Beneficiary
and Trustor agree in writing to other terms of payment, such amounts are payable by the Trustor
43 of 119 April 2, 2019, Item # 4.1
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to the Beneficiary, upon notice from Beneficiary to Trustor requesting payment thereof and will
bear interest from the date of disbursement at the rate stated in Section 3.3.
(f) If the Beneficiary or the receiver enters upon and takes and maintains
control of the Property, any application of rents as provided herein will not cure or waive any
default hereunder or invalidate any other right or remedy of Beneficiary under applicable law or
provided herein. This assignment of rents of the Property will terminate at such time as this
Deed of Trust ceases to the Secured Obligations.
ARTICLE 3:
TAXES AND INSURANCE; ADVANCES
Section 3.1 Taxes, Other Governmental Charges and Utility Charges.
(a) Trustor shall pay, or cause to be paid prior to the date of delinquency, all
taxes, assessments, charges and levies imposed by any public authority or utility company that
are or may become a lien affecting the Security or any part thereof; provided, however, that
Trustor is not required to pay and discharge any such tax, assessment, charge or levy so long as:
(1) the legality thereof is promptly and actively contested in good faith and by appropriate
proceedings; and (2) Trustor maintains reserves adequate to pay any liabilities contested pursuant
to this Section. With respect to taxes, special assessments or other similar governmental charges,
Trustor shall pay such amount in full prior to the attachment of any lien thereof on any part of
the Security; provided, however, if such taxes, assessments or charges may be paid in
installments, Trustor may pay in such installments. Except as provided in clause (2) of the first
sentence of this paragraph, the provisions of this Section shall not be construed to require that
Trustor maintain a reserve account, escrow account, impound account or other similar account
for the payment of future taxes, assessments, charges and levies.
(b) In the event that Trustor fails to pay any of the items required by this
Section to be paid by Trustor, Beneficiary may (but is under no obligation to) pay the same, after
the Beneficiary has notified the Trustor in writing of such failure to pay and the Trustor fails to
fully pay such items within seven (7) business days after receipt of such notice. Any amount so
advanced therefor by Beneficiary, together with interest thereon from the date of such advance at
the maximum rate permitted by law, will become part of the Secured Obligations secured hereby,
and Trustor agrees to pay all such amounts.
Section 3.2 Provisions Respecting Insurance.
(a) Trustor agrees to provide insurance conforming in all respects to that
required under the Authority Documents at all times and until all amounts secured by this Deed
of Trust have been paid and all Secured Obligations hereunder have been fulfilled, and this Deed
of Trust has been reconveyed.
(b) All such insurance policies and coverages are to be maintained at Trustor's
sole cost and expense. Certificates of insurance for all of the above insurance policies, showing
the same to be in full force and effect, are to be delivered to the Beneficiary upon demand
therefor at any time prior to the Trustor's satisfaction of the Secured Obligations.
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(c) The Trustor is aware that California Civil Code Section 2955.5(a)
provides as follows: "No lender shall require a borrower, as a condition of receiving or
maintaining a loan secured by real property, to provide hazard insurance coverage against risks
to the improvements on that real property in an amount exceeding the replacement value of the
improvements on the property."
Section 3.3 Advances. In the event the Trustor fails to maintain the full insurance
coverage required by this Deed of Trust or fails to keep the Security in accordance with the
Authority Documents, the Beneficiary, after at least seven (7) days ' prior written notice to
Trustor, may (but is under no obligation to): (a) take out the required policies of insurance and
pay the premiums on the same; and (b) make any repairs or replacements that are necessary and
provide for payment thereof. All amounts so advanced by the Beneficiary will become part of
the Secured Obligations (together with interest as set forth below) and will be secured hereby,
which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid,
will bear interest from the date of the advance at the lesser of ten percent (10%) per annum or the
maximum rate permitted by law.
ARTICLE 4:
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 Awards and Damages. All judgments, awards of damages, settlements
and compensation made in connection with or in lieu of: (a) a taking of all or any part of or any
interest in the Property by or under assertion of the power of eminent domain; (b) any damage to
or destruction of the Property or in any part thereof by insured casualty; and (c) any other injury
or damage to all or any part of the Property ( collectively, the "Funds"), are hereby assigned to
and are to be paid to the Beneficiary by a check made payable to the Beneficiary. The
Beneficiary is authorized and empowered (but not required) to collect and receive any Funds and
is authorized to apply them in whole or in part to any indebtedness or obligation secured hereby,
in such order and manner as the Beneficiary determines at its sole option. The Beneficiary is
entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust
and may deduct and retain from the proceeds of such insurance the amount of all expenses
incurred by it in connection with any such settlement or adjustment. All or any part of the
amounts so collected and recovered by the Beneficiary may be released to Trustor upon such
conditions as the Beneficiary may impose for its disposition. Application of all or any part of the
Funds collected and received by the Beneficiary or the release thereof will not cure or waive any
default under this Deed of Trust. The rights of the Beneficiary under this Section are subject to
the rights of any senior mortgage lender. The Beneficiary shall release the Funds to Trustor to be
used to reconstruct the improvements on the Property provided that Beneficiary reasonably
determines that Trustor (taking into account the Funds) has sufficient funds to rebuild the
improvements in substantially the form that existed prior to the casualty or condemnation.
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ARTICLE 5:
AGREEMENTS AFFECTING THE PROPERTY; FURTHER
ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST
Section 5.1 Other Agreements Affecting Property. The Trustor shall duly and
punctually perform all terms, covenants, conditions and agreements binding upon it under the
Authority Documents and any other agreement of any nature whatsoever now or hereafter
involving or affecting the Security or any part thereof.
Section 5.2 Agreement to Pay Attorneys' Fees and Expenses. In the event of any
Event of Default hereunder, and if the Beneficiary employs attorneys or incurs other expenses
for the collection of amounts due or the enforcement of performance or observance of an
obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it
will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such
other reasonable expenses so incurred by the Beneficiary (including, but not limited to, other
professional services fees and costs). Any such amounts paid by the Beneficiary will be added to
the Secured Obligations, and will bear interest from the date such expenses are incurred at the
lesser of ten percent (10%) per annum or the maximum rate permitted by law.
Section 5.3 Payment of the Principal. The Trustor shall pay to the Beneficiary the
Principal and any other payments as set forth in the Authority Promissory Note in the amounts
and by the times set out therein.
Section 5.4 Personal Property. To the maximum extent permitted by law, the
personal property subject to this Deed of Trust is deemed to be fixtures and part of the real
property and this Deed of Trust constitutes a fixtures filing under the California Commercial
Code. As to any personal property not deemed or permitted to be fixtures, this Deed of Trust
constitutes a security agreement under the California Commercial Code. The Trustor hereby
grants the Beneficiary a security interest in such items.
Section 5.5 Financing Statement. The Trustor shall execute and deliver to the
Beneficiary such financing statements pursuant to the appropriate statutes, and any other
documents or instruments as are required to convey to the Beneficiary a valid perfected security
interest in the Security. The Trustor agrees to perform all acts which the Beneficiary may
reasonably request so as to enable the Beneficiary to maintain such valid perfected security
interest in the Security in order to secure the payment of the Authority Promissory Note in
accordance with its terms. The Beneficiary is authorized to file a copy of any such financing
statement in any jurisdiction(s) as it shall deem appropriate from time to time in order to protect
the security interest established pursuant to this instrument. Trustor shall pay all costs of filing
such financing statements and any extensions, renewals, amendments, and releases thereof, and
shall pay all reasonable costs and expenses of any record searches for financing statements, and
releases thereof, as the Beneficiary may reasonably require. Without the prior written consent of
the Beneficiary, Trustor shall not create or suffer to be created pursuant to the California
Commercial Code any other security interest in the Security, including replacements and
additions thereto.
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Section 5.6 Operation of the Security. The Trustor shall operate the Security (and, in
case of a transfer of a portion of the Security subject to this Deed of Trust, the transferee shall
operate such portion of the Security) in full compliance with the Authority Documents.
Section 5.7 Inspection of the Security. At any and all reasonable times upon forty-
eight (48) hours' prior written notice, the Beneficiary and its duly authorized agents, attorneys,
experts, engineers, accountants and representatives, may inspect the Security without payment of
charges or fees.
Section 5.8 Nondiscrimination.
(a) In satisfaction of California Health and Safety Code Sections 33345 and
33436, the Trustor herein covenants by and for itself, its successors and assigns, and all persons
claiming under or through them, that there will be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) and (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of
the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the Property herein conveyed, nor shall the grantee or any person claiming under or through
the grantee, establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with
the land.
(b) Notwithstanding paragraph (a), with respect to familial status, paragraph
(a) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of
the Government Code. With respect to familial status, nothing in paragraph (a) shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating
to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code
and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to
paragraph (a).
ARTICLE 6:
HAZARDOUS MATERIALS
(a) Trustor shall keep and maintain the Property in compliance with, and shall
not cause or permit the Property to be in violation of any federal, state or local laws, ordinances
or regulations relating to industrial hygiene or to the environmental conditions on, under, or
about the Property including, but not limited to, soil and ground water conditions. Trustor shall
not use, generate, manufacture, store or dispose of on, under, or about the Property or transport
to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic
substances or related materials, including without limitation, any substances defined as or
included in the definition of "hazardous substances," hazardous wastes," "hazardous materials,"
or "toxic substances" under any applicable federal or state laws or regulations (collectively
referred to hereinafter as "Hazardous Materials") except such of the foregoing as may be
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customarily used in construction and operation of the improvements on the Property or as may
be kept and used in and about residential development of this type.
(b) Trustor shall promptly advise Beneficiary in writing if at any time it
receives written notice of: (1) any and all enforcement, cleanup, removal or other governmental
or regulatory actions related to the Property instituted, completed or threatened against Trustor or
the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations
relating to any Hazardous Materials Law ("Hazardous Materials Law"); (2) all claims made or
threatened by any third party against Trustor or the Property relating to any loss, damage, cost,
expense or liability, contribution, cost recovery compensation, loss or injury directly or indirectly
arising out of or attributable to the use, generation, storage, release, threatened release, discharge,
disposal, or presence of Hazardous Materials on or under the Property (the matters set forth in
clauses (1) and (2) above are hereinafter referred to as "Hazardous Materials Claims"); and
(3) Trustor's discovery of any occurrence or condition on any real property adjoining or in the
vicinity of the Property that could cause the Property or any part thereof to be classified as
"border-zone property" under the provision of California Health and Safety Code, Sections
25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to
any restrictions on the ownership, occupancy, transferability or use of the Property under any
Hazardous Materials Law.
(c) Beneficiary has the right to join and participate in, as a party if it so elects,
any legal proceedings or actions initiated in connection with any Hazardous Materials Claims
and to have its reasonable attorneys' fees in connection therewith paid by Trustor. Trustor shall
indemnify and hold harmless Beneficiary and its council members, supervisors, directors,
officers, employees, and agents (collectively, "Indemnified Parties") from claims arising from
Trustor's breach of its obligations under the first section of this Article 6, including without
limitation claims for: (1) all foreseeable consequential damages; (2) the costs of any required,
reasonable and necessary repair, cleanup or detoxification of the Property and the preparation
and implementation of reasonable and necessary closure, remedial or other required plans all to
the extent required by an environmental regulatory agency asserting jurisdiction under
Hazardous Materials Laws; and (3) all reasonable costs and expenses incurred by Beneficiary in
connection with clauses (1) and (2), including but not limited to reasonable attorneys' fees and
other professional services fees and costs. This indemnification applies whether or not any
government agency has issued a cleanup order. Losses, claims, costs, suits, liability, and
expenses covered by this indemnification provision include, but are not limited to: (i) losses
attributable to diminution in the value of the Property; (ii) loss or restriction of use of rentable
space on the Property; (iii) adverse effect on the marketing of any rental space on the Property;
and (iv) penalties and fines levied by, and remedial or enforcement actions of any kind issued by
any regulatory agency (including but not limited to the costs of any required testing, remediation,
repair, removal, cleanup or detoxification of the Property and surrounding properties). The
forgoing indemnity shall not apply to any claims, losses, damages, liabilities, fines, penalties, or
charges that are caused by the sole negligence or willful misconduct of the Indemnified Parties.
(d) Without Beneficiary's prior written consent, which shall not be
unreasonably withheld, Trustor may not take any remedial action in response to the presence of
any Hazardous Materials on, under, or about the Property, nor enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous Material Claims,
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which remedial action, settlement, consent decree or compromise might, in Beneficiary's
reasonable judgment, impairs the value of the Beneficiary's security hereunder; provided,
however, that Beneficiary's prior consent shall not be necessary in the event that the presence of
Hazardous Materials on or under the Property either poses an immediate threat to the health,
safety or welfare of any individual or is of such a nature that an immediate remedial response is
necessary and it is not reasonably practicable to obtain Beneficiary's consent before taking such
action, provided that in such event Trustor shall notify Beneficiary as soon as practicable of any
action so taken. Beneficiary agrees not to withhold its consent, where such consent is required
hereunder, if either: (1) a particular remedial action is ordered by a court of competent
jurisdiction; (2) Trustor will or may be subjected to civil or criminal sanctions or penalties if it
fails to take a required action; (3) Trustor establishes to the reasonable satisfaction of Beneficiary
that there is no reasonable alternative to such remedial action which would result in less
impairment of Beneficiary's security hereunder; or (4) the action has been agreed to by
Beneficiary.
(e) The Trustor hereby acknowledges and agrees that: (1) this Article is
intended as the Beneficiary's written request for information (and the Trustor's response)
concerning the environmental condition of the Property as required by California Code of Civil
Procedure Section 726.5; and (2) each representation and warranty in this Deed of Trust or any
of the other Authority Documents (together with any indemnity applicable to a breach of any
such representation and warranty) with respect to the environmental condition of the property is
intended by the Beneficiary and the Trustor to be an "environmental provision" for purposes of
California Code of Civil Procedure Section 736.
(f) In the event that any portion of the Property is determined to be
"environmentally impaired" (as that term is defined in California Code of Civil Procedure
Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of
Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the
Beneficiary's or the Trustee's rights and remedies under this Deed of Trust, the Beneficiary may
elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to: (1)
waive its lien on such environmentally impaired or affected portion of the Property; and (2)
exercise: (i) the rights and remedies of an unsecured creditor, including reduction of its claim
against the Trustor to judgment; and (ii) any other rights and remedies permitted by law. For
purposes of determining the Beneficiary's right to proceed as an unsecured creditor under
California Code of Civil Procedure Section 726.5(a), the Trustor will be deemed to have
willfully permitted or acquiesced in a release or threatened release of hazardous materials, within
the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or
threatened release of hazardous materials was knowingly or negligently caused or contributed to
by any lessee, occupant, or user of any portion of the Property and the Trustor knew or in the
exercise of reasonable diligence should have known of the activity by such lessee, occupant, or
user which caused or contributed to the release or threatened release. All costs and expenses,
including (but not limited to) reasonable attorneys' fees, incurred by the Beneficiary in
connection with any action commenced under this paragraph, including any action required by
California Code of Civil Procedure Section 726.5(b) to determine the degree to which the
Property is environmentally impaired, plus interest thereon at the default rate specified in the
Disposition and Loan Agreement until paid, will be added to the indebtedness secured by this
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Deed of Trust and will be due and payable to the Beneficiary upon its demand made at any time
following the conclusion of such action.
ARTICLE 7:
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default. The following constitute events of default following
the expiration of any applicable notice and cure periods (each an "Event of Default"): (a) failure
to make any payment to be paid by Trustor under the Authority Documents; (b) failure to
observe or perform any of Trustor's other covenants, agreements or obligations under the
Authority Documents, including, without limitation, the provisions concerning discrimination,
subject to applicable notice and cure periods, if any, included in the Authority Documents; (c)
failure to make any payment, observe or perform any of Trustor's other covenants, agreements,
or obligations under any Secured Obligations; and failure to make any payments or observe or
perform any of Trustor's; or (d) failure to make any payments or observe or perform any of
Trustor's other covenants, agreements or obligations under any other debt instrument or
regulatory agreement secured by the Property, which default is not cured within the time and in
the manner provided therein.
Section 7.2 Acceleration of Maturity. If an Event of Default has occurred and is
continuing, then at the option of the Beneficiary, the amount of any payment related to the Event
of Default and all unpaid Secured Obligations are immediately due and payable, upon written
notice by the Beneficiary to the Trustor (or automatically where so specified in the Authority
Documents), and no omission on the part of the Beneficiary to exercise such option when
entitled to do so may be construed as a waiver of such right.
Section 7.3 The Beneficiary's Right to Enter and Take Possession. If an Event of
Default has occurred and is continuing, the Beneficiary may:
(a) Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its
security, enter upon the Property and take possession thereof (or any part thereof) and of any of
the Security, in its own name or in the name of Trustee, and do any acts that it deems necessary
or desirable to preserve the value or marketability of the Property, or part thereof or interest
therein, increase the income therefrom or protect the security thereof. The entering upon and
taking possession of the Security shall not cure or waive any Event of Default or Notice of Sale
(as defined in Section 7.3(c) below) hereunder or invalidate any act done in response to such
Event of Default or pursuant to such Notice of Sale and, notwithstanding the continuance in
possession of the Security, Beneficiary will be entitled to exercise every right provided for in this
Deed of Trust, or by law upon occurrence of any Event of Default, including the right to exercise
the power of sale;
(b) Commence an action to foreclose this Deed of Trust as a mortgage,
appoint a receiver, or specifically enforce any of the covenants hereof;
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(c) Deliver to Trustee a written declaration of default and demand for sale,
and a written notice of default and election to cause Trustor's interest in the Security to be sold
("Notice of Sale"), which notice Trustee or Beneficiary shall cause to be duly filed for record in
the Official Records of the County of San Diego, California; or
(d) Exercise all other rights and remedies provided herein, in the instruments
by which the Trustor acquires title to any Security, or in any other document or agreement now
or hereafter evidencing, creating or securing the Secured Obligations.
Section 7.4 Foreclosure By Power of Sale.
(a) Should the Beneficiary elect to foreclose by exercise of the power of sale
herein contained, the Beneficiary shall deliver to the Trustee the Notice of Sale and shall deposit
with Trustee the Authority Promissory Note which is secured hereby (and the deposit of which
will be deemed to constitute evidence that the unpaid Principal amount of the Secured
Obligations are immediately due and payable), and such receipts and evidence of any
expenditures made that are additionally secured hereby as Trustee may require.
(b) Upon receipt of such Notice of Sale from the Beneficiary, Trustee shall
cause to be recorded, published and delivered to Trustor such Notice of Sale as then required by
law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such
time as may then be required by law and after recordation of such Notice of Sale having been
given as required by law, sell the Security, at the time and place of sale fixed by it in said Notice
of Sale, whether as a whole or in separate lots or parcels or items as Trustee deems expedient and
in such order as it may determine unless specified otherwise by the Trustor according to
California Civil Code Section 2924g(b), at public auction to the highest bidder, for cash in lawful
money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or
purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but
without any covenant or warranty, express or implied. The recitals in such deed or any matters
of facts will be conclusive proof of the truthfulness thereof. Any person, including, without
limitation, Trustor, Trustee or Beneficiary, may purchase at such sale.
(c) After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds
of sale to payment of: (1) the unpaid Principal amount of the Authority Promissory Note; (2) all
other Secured Obligations owed to Beneficiary under the Authority Documents; (3) all other
sums then secured hereby; and (4) the remainder, if any, to Trustor.
(d) Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter, and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretion,
give a new Notice of Sale.
Section 7.5 Receiver. If an Event of Default occurs and is continuing, Beneficiary, as
a matter of right and without further notice to Trustor or anyone claiming under the Security, and
without regard to the then value of the Security or the interest of Trustor therein, may apply to
any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof),
51 of 119 April 2, 2019, Item # 4.1
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and Trustor hereby irrevocably consents to such appointment and waives further notice of any
application thereof. Any such receiver or receivers will have all the usual powers and duties of
receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as
provided herein, and will continue as such and exercise all such powers until the date of
confirmation of sale of the Security, unless such receivership is sooner terminated.
Section 7.6 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right,
power or remedy, but each and every such right, power and remedy will be cumulative and
concurrent and will be in addition to any other right, power and remedy given hereunder or now
or hereafter existing at law or in equity.
Section 7.7 No Waiver.
(a) No delay or omission of the Beneficiary to exercise any right, power or
remedy accruing upon any Event of Default will exhaust or impair any such right, power or
remedy, and may not be construed to be a waiver of any such Event of Default or acquiescence
therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may
be exercised from time to time and as often as may be deemed expeditious by the Beneficiary.
Beneficiary's express or implied consent to breach, or waiver of, any obligation of the Trustor
hereunder will not be deemed or construed to be a consent to any subsequent breach, or further
waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure on the
part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default,
irrespective of how long such failure continues, will not constitute a waiver by the Beneficiary of
its right hereunder or impair any rights, power or remedies consequent on any Event of Default
by the Trustor.
(b) If the Beneficiary: (1) grants forbearance or an extension of time for the
payment or performance of any Secured Obligations; (2) takes other or additional security or the
payment of any sums secured hereby; (3) waives or does not exercise any right granted in the
Authority Documents; (4) releases any part of the Security from the lien of this Deed of Trust, or
otherwise changes any of the terms, covenants, conditions or agreements in the Authority
Documents; (5) consents to the granting of any easement or other right affecting the Security; or
(6) makes or consents to any agreement subordinating the lien hereof, any such act or omission
will not release, discharge, modify, change or affect the original liability under this Deed of
Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any
part thereof, or any maker, co-signer, endorser, surety or guarantor (unless expressly released);
nor will any such act or omission preclude the Beneficiary from exercising any right, power or
privilege herein granted or intended to be granted in any Event of Default then made or of any
subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or
instruments executed by the Beneficiary will the lien of this Deed of Trust be altered thereby.
Section 7.8 Suits to Protect the Security. The Beneficiary has the power to: (a)
institute and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Security and the rights of the Beneficiary as may be unlawful or any violation
of this Deed of Trust; (b) preserve or protect its interest (as described in this Deed of Trust) in
the Security; and (c) restrain the enforcement of or compliance with any legislation or other
52 of 119 April 2, 2019, Item # 4.1
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governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the
enforcement for compliance with such enactment, rule or order would impair the Security
thereunder or be prejudicial to the interest of the Beneficiary.
Section 7.9 Trustee May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting the Trustor, its creditors or its property, the Trustee and/or the Beneficiary,
to the extent permitted by law, will be entitled to file such proofs of claim and other documents
as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such
proceedings and for any additional amount that becomes due and payable by the Trustor
hereunder after such date.
Section 7.10 Waiver. The Trustor waives presentment, demand for payment, notice of
dishonor, notice of protest and nonpayment, protest, notice of interest on interest and late
charges, and diligence in taking any action to collect any Secured Obligations, including but not
limited to sums owing under the Authority Promissory Note, or in proceedings against the
Security, in connection with the delivery, acceptance, performance, default, endorsement or
guaranty of this Deed of Trust.
Section 7.11 Investor Rights. If a default or an Event of Default shall have occurred,
whenever the Authority delivers any notice or demand to the Trustor, the Authority shall at the
same time deliver to the Approved Lenders and the Investor, a copy of such notice or demand.
The Investor shall (insofar as the rights of the Authority are concerned) have the right, but not
the obligation, at its option to cure such default or Event of Default as follows: (a) forty-five (45)
days after the Investor's receipt of such notice to cure any default under the Loan Documents;
and (b) If a default is incapable of being cured within the forty-five (45) day period set forth in
item (a) above, so long as such cure is commenced within the forty-five (45) days and is being
diligently pursued to completion, the Authority will give the Investor additional time to cure
such default, but in no event later than one hundred twenty (120) days, and Beneficiary agrees to
accept cures thereunder by Investor.
ARTICLE 8:
MISCELLANEOUS
Section 8.1 Amendments. This Deed of Trust cannot be waived, changed, discharged
or terminated orally, but only by an instrument in writing signed by Beneficiary and Trustor.
Section 8.2 Reconveyance by Trustee. Upon written request of Beneficiary stating
that all Secured Obligations have been paid or forgiven, and all obligations under the Authority
Documents have been performed, and upon surrender of this Deed of Trust to Trustee for
cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee
shall fully reconvey the Security to Trustor, or to the person or persons legally entitled thereto.
Section 8.3 Notices.
53 of 119 April 2, 2019, Item # 4.1
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(a) If at any time after the execution of this Deed of Trust it becomes
necessary or convenient for one of the parties hereto to serve any notice, demand or
communication upon the other party, such notice, demand or communication must be in writing
and is to be served personally, by reputable overnight delivery service (which provides a delivery
receipt) or by depositing the same in the registered United States mail, return receipt requested,
postage prepaid and, (1) if intended for Beneficiary is to be addressed to:
Authority:
Poway Housing Authority
13325 Civic Center Drive
Poway, CA 92064
Attention: Executive Director
and (2) if intended for Trustor shall be addressed to:
Villa de Vida, L.P.
c/o Villa de Vida
10620 Treena Street, Suite 230
San Diego, CA 92131
Attn: Executive Director
Mercy Housing California
1500 South Grand Avenue, Suite 100
Los Angeles, CA 90015
Attn: Vice President
with copies to:
Wells Fargo Affordable Housing
Community Development Corporation
MAC D1053-170
301 South College Street
Charlotte, NC 28288
Attention: Director of Tax Credit Asset Management
Any notice, demand or communication will be deemed given, received, made or communicated
on the date personal delivery is effected or, if mailed in the manner herein specified, on the
delivery date or date delivery is refused by the addressee, as shown on the return receipt. A copy
of any notice sent to the Beneficiary must also be sent to the Office of the City Clerk at the above
address. Either party may change its address at any time by giving written notice of such change
to Beneficiary or Trustor as the case may be, in the manner provided herein, at least ten (10) days
prior to the date such change is desired to be effective. Trustor's limited partner shall have all the
notice and cure rights set forth in the Disposition and Loan Agreement.
Section 8.4 Successors and Joint Trustors. Where an obligation created herein is
binding upon Trustor, the obligation also applies to and binds any transferee or successors in
interest. Where the terms of the Deed of Trust have the effect of creating an obligation of the
Trustor and a transferee, such obligation will be deemed to be a joint and several obligation of
54 of 119 April 2, 2019, Item # 4.1
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the Trustor and such transferee. Where more than one entity or person is signing as Trustor, all
obligations of Trustor will be deemed to be a joint and several obligation of each and every
entity and person signing as Trustor.
Section 8.5 Captions. The captions or headings at the beginning of each Section
hereof are for the convenience of the parties and are not a part of this Deed of Trust.
Section 8.6 Invalidity of Certain Provisions. Every provision of this Deed of Trust is
intended to be severable. In the event any term or provision hereof is declared to be illegal or
invalid for any reason whatsoever by a court or other body of competent jurisdiction, such
illegality or invalidity will not affect the balance of the terms and provisions hereof, which terms
and provisions will remain binding and enforceable. If the lien of this Deed of Trust is invalid or
unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of
the Security, the unsecured or partially secured portion of the debt, and all payments made on the
debt, whether voluntary or under foreclosure or other enforcement action or procedure, will be
considered to have been first paid or applied to the full payment of that portion of the debt that is
not secured or partially secured by the lien of this Deed of Trust.
Section 8.7 Governing Law. This Deed of Trust is to be governed by and construed in
accordance with the laws of the State of California.
Section 8.8 Gender and Number. In this Deed of Trust the singular includes the plural
and the masculine includes the feminine and neuter and vice versa, if the context so requires.
Section 8.9 Deed of Trust, Mortgage. Any reference in this Deed of Trust to a
mortgage also refers to a deed of trust and any reference to a deed of trust also refers to a
mortgage.
Section 8.10 Actions. Trustor agrees to appear in and defend any action or proceeding
purporting to affect the Security.
Section 8.11 Substitution of Trustee. Beneficiary may from time to time substitute a
successor or successors to any Trustee named herein or acting hereunder to execute this Trust.
Upon such appointment, and without conveyance to the successor trustee, the latter will be
vested with all title, powers, and duties conferred upon any Trustee herein named or acting
hereunder. Each such appointment and substitution is to be made by written instrument executed
by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when
duly recorded in the proper office of the county or counties in which the Property is situated, will
be conclusive proof of proper appointment of the successor trustee.
Section 8.12 Statute of Limitations. The pleading of any statute of limitations as a
defense to any and all obligations secured by this Deed of Trust is hereby waived to the full
extent permissible by law.
Section 8.13 Acceptance by Trustee. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made public record as provided by law. Except as
otherwise provided by law the Trustee is not obligated to notify any party hereto of a pending
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sale under this Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or
Trustee is to be a party unless brought by Trustee.
Section 8.14 Tax Credit Provisions.
(a) Notwithstanding anything to the contrary contained herein or in any
documents secured by this Deed of Trust or contained in any subordination agreement, and to the
extent applicable, the Beneficiary acknowledges and agrees that in the event of a foreclosure or
deed-in-lieu of foreclosure (collectively, "Foreclosure") with respect to the Security encumbered
by this Deed of Trust, the following rule contained in 26 U.S.C. Section 42(h)(6)(E)(ii), as
amended, applies:
(b) For a period of three (3) years from the date of Foreclosure, with respect
to any unit that had been regulated by the Regulatory Agreement with the California Tax Credit
Allocation Committee: (a) none of the tenants occupying those units at the time of Foreclosure
may be evicted or their tenancy terminated (other than for good cause); (b) nor may any rent be
increased except as otherwise permitted under Section 42 of the Internal Revenue Code.
[Signature Page Follows]
56 of 119 April 2, 2019, Item # 4.1
Deed of Trust
Signature Page
1552\12\1949162.11
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and
year first above written.
TRUSTOR:
VILLA DE VIDA POWAY, L.P., a California limited partnership
By: Villa de Vida GP, LLC, a California limited liability
company, its Managing General Partner
By: Mercy Housing Calwest, a California nonprofit
public benefit corporation, its sole member and
manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
By: VDV POWAY LLC, a California limited liability
company, its Administrative General Partner
By: Villa de Vida, Inc., a California nonprofit public
benefit corporation, its sole member and manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
57 of 119 April 2, 2019, Item # 4.1
1552\12\1949162.11
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
58 of 119 April 2, 2019, Item # 4.1
1552\12\1949162.11
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
59 of 119 April 2, 2019, Item # 4.1
A-1
1552\12\1949162.11
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to is situated in the County of San Diego, City of Poway, State of California,
and is described as follows:
60 of 119 April 2, 2019, Item # 4.1
E-1
1552\12\2547457.7
ATTACHMENT E
DEVELOPMENT SCHEDULE
The attached Development Schedule hereby supersedes the Development Schedule attached as
Exhibit B of the Original DDA.
This Development Schedule summarizes the schedule for various activities under the Disposition
and Development Agreement to which this exhibit is attached. The description of items in this
Development Schedule is meant to be descriptive only, and shall not be deemed to modify in any
way the provisions of the Agreement to which such items relate. Section references herein to the
Agreement are intended merely as an aid in relating this Development Schedule to other
provisions of the Agreement and shall not be deemed to have any substantive effect. Times for
performance are subject to Force Majeure, as further provided in Section 10.3 of the Agreement.
Whenever this Development Schedule requires the submission of plans or other
documents at a specific time, such plans or other documents, as submitted, shall be complete and
adequate for review by the Authority or other applicable governmental entity within the time set
forth herein. Prior to the time set forth for each particular submission, the Developer shall
consult with Authority and City staff informally as necessary concerning such submission in
order to assure that such submission will be complete and in a proper form within the time for
submission set forth herein.
Obligation Section Schedule
Community Outreach Meeting ERNA September 2016
Developer shall submit to the Authority
Concept Drawings.
2.3(a)(1) Not later than November 1, 2016. (Deemed
completed)
Parties shall have negotiated mutually
acceptable Tenant Selection Plan
2.13 Not later than sixty (60) days from the Effective Date
(December 5, 2016) (Deemed completed)
Developer shall submit to the Authority
Schematic Design Drawings.
2.3(a)(2) Not later than February 15, 2017. (Deemed
completed)
Developer shall submit applications
governmental approvals for the
Improvements.
2.2(a) Not later than November 1, 2016 for all entitlement
applications and no later than 120 days prior to the
Close of Escrow for all building plan and site
improvements. (Deemed completed)
Developer shall submit to the Authority
Final Construction Drawings.
2.3(a)(2) Prior to the Close of Escrow and in no event later than
April 22, 2019. (Deemed completed)
Developer shall submit a first round
application for a Tax Credit Reservation.
2.5(b) February 28, 2018 or such other date set forth by
TCAC for the first competitive application fund round.
(Deemed completed)
Developer shall submit three (3)
proposals from prospective contractors.
2.9(a) Not later than March 1, 2018. (Deemed completed)
Developer shall submit a timely and
complete application for a County Loan
which is administered through a Notice
of Funding Availability process
administered through the County of San
2.6(c) Not later than June 1, 2016. (Deemed completed)
24 of 119 April 2, 2019, Item # 4.161 of 119 April 2, 2019, Item # 4.1
1552\12\2547457.7 2
Obligation Section Schedule
Diego Department of Housing and
Community Development.
Developer shall submit a timely and
complete application for a County
Project Based Vouchers which is
administered through a Notice of
Funding Availability process
administered through the County of San
Diego Department of Housing and
Community Development.
2.6(d) Not later than October 31, 2016. (Deemed completed)
Intentionally Deleted
2.6(b) Intentionally Deleted.
Developer shall submit any updates to
the Financing Proposal.
2.4(b) Promptly, as necessary to reflect material amendments
to the initial Financing Proposal and the later approved
Financing Plan, including but not limited to any
material amendments or modifications to the
development budget (including the unavailability of
any sources of financing identified in Sections 2.5 and
2.6. (Note- Approved Financing Plan is appended to
the Third Amendment to which this Schedule is
attached.)
Developer shall receive all necessary
governmental approvals for the
Improvements.
3.4 Prior to Closing for all building and infrastructure
permits, but in no case later than May 1, 2019.
(Deemed completed)
Developer shall submit the proposed
Construction Contracts for the
Improvements for Authority approval.
2.9(a) Not later than thirty (30) days prior to the Close of
Escrow. (Deemed completed)
Authority shall promptly review and
approve Construction Contract.
2.9(b) Within ten (10) days following the Authority's receipt
of the complete Construction Contract. (Deemed
completed)
Developer will grant to the Authority,
pursuant to the Assignment Agreement,
a valid, second priority continuing
security interest in Collateral Documents
4.11 On the Effective Date and as necessary upon
Developer's execution of additional Collateral
Documents.
Close of Escrow (recording of the
Memorandum of DDLA, the Authority
Deed of Trust, the Authority Regulatory
Agreement, and the Notice of
Affordability Restrictions in the Official
Records).
3.4 No later than 180 days following an award of 9% tax
credits, but in no event later than April 22, 2019.
(Note- Close of Escrow is expected on April 9, 2019)
Developer shall furnish to the Authority
evidence of the insurance coverage
meeting the requirements of Section
6.10
2.11 On or before the Close of Escrow.
Developer shall obtain one (1) labor and
material bond and one (1) performance
bond for construction of the
Improvements meeting the requirements
2.10 On or before the Close of Escrow.
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1552\12\2547457.7 3
Obligation Section Schedule
of Section 2.10 for Authority approval.
Commence Construction 5.3 Within ten (10) days of the Close of Escrow, but in no
event later than May 1, 2019.
Developer shall submit to the Authority
and updates to Resident Services Plan
and Resident Services Budget
6.9 Not later than six (6) months after commencement of
construction of Improvements. (Note- Initial Resident
Services Plan and Resident Services Budget are
appended to the Third Amendment to which this
Schedule is attached.)
Developer shall submit to the Authority
an initial proposed Management Plan.
2.8(a) Not later than six (6) months after commencement of
construction of Improvements.
Authority shall approve or disapprove
the Management Plan in writing.
2.8(b), 6.8 Within fifteen (15) calendar days following the
Authority's receipt of the complete Management Plan
and in no event later than no later than six (6) months
after commencement of construction of the
Development.
Complete Construction 5.4 No later than 18 months following commencement of
construction, but in no case later than December 31,
2020.
Developer shall provide to Authority a
draft financial accounting of all sources
and uses of funds for the Development
5.16 No later than ninety (90) days following completion of
construction of the Development and issuance of the
Certificate of Completion, expected to be
approximately May 1, 2021.
Developer shall submit to the Authority
a copy of the Development's cost
certification report prepared by the
Developer's accountant
No later than one hundred fifty (150) days following
completion of construction, expected to be
approximately June 1, 2021
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F-1
1552\12\2547457.7
ATTACHMENT F
FORM OF AUTHORITY
REGULATORY AGREEMENT
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1552\12\1949376.8 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Poway Housing Authority
13325 Civic Center Drive
Poway, CA 92064
Attention: Attention: Executive Director
NO FEE FOR RECORDING PURSUANT
TO GOVERNMENT CODE
SECTIONS 6103 AND 27383
APN: 317-152-14-00
REGULATORY AGREEMENT AND DECLARATION
OF RESTRICTIVE COVENANTS
(Villa De Vida)
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") is made
and entered into as of April __, 2019, by and between the Poway Housing Authority, a public
body, corporate and politic (the "Authority") and Villa de Vida Poway, L.P. (the "Owner").
RECITALS
A. These Recitals refer to and utilize certain capitalized terms which are defined in
Article 1 of this Agreement. The Parties intend to refer to those definitions in connection with
the use of capitalized terms in these Recitals.
B. The Authority and the Owner executed that certain Disposition, Development and
Loan Agreement, as of October 4, 2016, and recorded in the Official Records of San Diego
County, California (the "Official Records") on April 10, 2017, as Document No. 2017-016002,
as amended by that certain First Amendment to the Land Disposition, Development and Loan
Agreement dated as of June 20, 2017, and recorded in the Official Records on July 10, 2017, as
Document No. 2017-03098, as further amended by that certain Second Amendment to the Land
Disposition, Development and Loan Agreement dated as of February 6, 2018, and recorded in
the Official Records on March 22, 2018, as Document No. 2018-0113457, as further amended by
that certain Third Amendment to the Land Disposition, Development and Loan Agreement dated
as of April 2, 2019, as such may be amended from time to time (collectively, the "Disposition
and Loan Agreement"), under which the Authority agreed to loan and the Owner agreed to
borrow up to Three Million Four Hundred Fifty Thousand Dollars ($3,450,000) (the "Authority
Loan"), which the Owner will use, together with funds obtained from other sources, for the
acquisition, development and construction of approximately fifty-four (54) affordable units.
C. The funds loaned to the Owner pursuant to the Disposition and Loan Agreement
consist of Housing Fund Proceeds. Pursuant to Health and Safety Code Section 33334.3, the
Authority must restrict developments assisted with Housing Fund Proceeds, so that the
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Developments remain affordable to low and moderate income households for the longest feasible
time. The Authority is requiring the execution of this Agreement in order to implement the
requirements Health and Safety Code Section 33334.3.
D. The Authority has agreed to make the Authority Loan to the Owner on the
condition that the Development be maintained and operated in accordance with Health and
Safety Code Sections 33334.2 et seq., and 33413(b)(2)(A)(i) and 34176.1 and in accordance with
additional restrictions concerning affordability, operation, and maintenance of the Development,
as specified in this Regulatory Agreement, and the Disposition Agreement. The Authority has
determined that restriction of seven (7) Units for Extremely Low Income Households pursuant to
Section 2.1 below, will satisfy the requirements of Health and Safety Code 34167.1.
E. In consideration of receipt of the Authority Loan, the Owner has further agreed to
observe all the terms and conditions set forth below.
F. In order to ensure that the entire Development will be used and operated in
accordance with these conditions and restrictions, the Authority and the Owner wish to enter into
this Agreement, which is secured by the Authority Deed of Trust.
THEREFORE, the Authority and the Owner hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions. When used in this Agreement, the following terms shall have the
respective meanings assigned to them in this Article 1.
(a) "Actual Household Size" means the actual number of persons in the
applicable household.
(b) "Adjusted Income" means the total anticipated annual income of all
persons in a household, as calculated in accordance with 25 California Code of Regulations
Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar
method of calculation of adjusted income. In the event that no such program exists, the
Authority shall provide the Owner with a reasonably similar method of calculation of adjusted
income as provided in said Section 6914.
(c) "Agreement" means this Regulatory Agreement and Declaration of
Restrictive Covenants.
(d) "Authority Deed of Trust" means the deed of trust in favor of the
Authority encumbering the Property which secures repayment of the Authority Loan and
performance of this Agreement.
(e) "Authority Loan" means the loan from the Authority to the Owner in an
amount not to exceed Three Million Four Hundred Fifty Thousand Dollars ($3,450,000).
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(f) "Assumed Household Size" shall have the meaning set forth in
Section 2.2(d). The definition is utilized to calculate affordable rent and is not intended to be a
limit on the number of persons occupying a unit.
(g) "City" means the City of Poway, a municipal corporation.
(h) "Development" means the Property and the Improvements.
(i) "Disposition and Loan Agreement" has the meaning set forth in Recital B.
(j) "Dissolved RDA" means the dissolved Poway Redevelopment Agency, a
public body, corporate and politic.
(k) "Extremely Low Income Household" means a household with an Adjusted
Income that does not exceed the qualifying limits for extremely low income households, adjusted
for Actual Household Size, as established and amended from time to time pursuant to Section 8
of the United States Housing Act of 1937, and as published by the State of California
Department of Housing and Community Development.
(l) "Extremely Low Income Rent" means the rent permitted to be charged for
an Extremely Low Income Unit pursuant to Section 2.2(a) below.
(m) "Extremely Low Income Unit" means the Units, which, pursuant to
Section 2.1(g) below, are required to be occupied by Low Income Households.
(n) "Housing Fund Proceeds" means any of the funds transferred to the
Authority, together with any funds generated from housing assets, maintained in the Low and
Moderate Income Housing Asset Fund, created in the accounts of the Authority pursuant to
Health and Safety Code Section 34176(d).
(o) "Improvements" means the approximately fifty-four (54) units of
affordable housing to be constructed on specified portions of the Property, including the
manager's unit, all common areas, amenities, plans, entitlements, appurtenances, improvement
easements, buildings and fixtures associated with the Property.
(p) "Investor Limited Partner" means, Wells Fargo Affordable Housing
Community Development Corporation, its successors and/or assigns, as the Investor of the
Developer, the tax credit limited partner or partners, and their respective successors and assigns,
admitted to the Owner's partnership in connection with the issuance of low income housing tax
credits to the Development, which admission will occur concurrent with closing of construction
financing for development of the Improvements.
(q) "Low Income Household" shall mean a household with an Adjusted
Income that does not exceed the qualifying limits for lower income households, adjusted for
Actual Household Size, as established and amended from time to time pursuant to Section 8 of
the United States Housing Act of 1937, and as published by HCD.
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(r) "Low Income Rent" shall mean the maximum allowable rent for a Low
Income Unit pursuant to Section 2.2(c) below.
(s) "Low Income Units" shall mean the Units, which, pursuant to
Section 2.1(c) below, are required to be occupied by Low Income Households.
(t) "Median Income" means the median gross yearly income adjusted for
Actual Household Size (to qualify residents) or Assumed Household Size (to calculate rents), as
applicable, in the County of San Diego, California, as published from time to time by the State of
California Department of Housing and Community Development. In the event that such income
determinations are no longer published, or are not updated for a period of at least eighteen (18)
months, the Authority shall provide the Owner with other income determinations which are
reasonably similar with respect to methods of calculation to those previously published by the
State of California Department of Housing and Community Development.
(u) "Owner" means Villa de Vida Poway, L.P., a California limited
partnership and its successors and assigns.
(v) "Property" means the real property located in the City of Poway, County
of San Diego, more particularly described in Exhibit A attached hereto and incorporated herein,
also referred to as the "Property")
(w) "Rent" means the total of monthly payments by the residents of a Unit
(other than the manager's unit) for the following: use and occupancy of the Unit and land and
associated facilities, including parking; any separately charged fees or service charges assessed
by Owner which are required of all residents, other than security deposits; the cost of an
adequate level of service for utilities paid by the resident, including garbage collection, sewer,
water, electricity, gas and other heating, cooking and refrigeration fuel, but not cable or
telephone service; and any other interest, taxes, fees or charges for use of the land or associated
facilities and assessed by a public or private entity other than Owner, and paid by the Resident.
(x) "Resident" means a household legally occupying a Unit pursuant to a valid
lease with Owner.
(y) "Term" means the term of this Agreement, which commences as of the
date of this Agreement and, unless terminated earlier or extended by the Parties pursuant to this
Agreement, ends fifty-seven (57) years from the date this Agreement is recorded against the
Property.
(z) "Unit" means one (1) of the approximately fifty-four (54) units (including
the manager's unit) to be constructed as part of the Development.
(aa) "Very Low Income Household" means a household with an Adjusted
Income that does not exceed the qualifying limits for very low income households, adjusted for
Actual Household Size, as established and amended from time to time pursuant to Section 8 of
the United States Housing Act of 1937, and as published by the State of California Department
of Housing and Community Development.
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(bb) "Very Low Income Rent" means the rent permitted to be charged for a
Very Low Income Unit pursuant to Section 2.2(b) below.
(cc) "Very Low Income Units" means the Units, which, pursuant to
Section 2.1(b) below, are required to be occupied by Very Low Income Households.
ARTICLE 2.
AFFORDABILITY COVENANTS
2.1 Occupancy Requirements. The Units shall be occupied by Residents meeting the
following income requirements:
(a) Extremely Low Income Units. Seven (7) Units, including six (6) one-
bedroom Units and one (1) two-bedroom Units shall be rented to and occupied by or, if vacant,
available for occupancy by Extremely Low Income Households; and
(b) Very Low Income Units. Eight (8) Units, including six (6) one-bedroom
Units, and two (2) two-bedroom Units shall be rented to and occupied by or, if vacant, available
for occupancy by Very Low Income Households.
(c) Low Income Units. Eleven (11) Units, including eleven (11) one-bedroom
Units shall be rented to and occupied by or, if vacant, available for occupancy by Low Income
Households.
(d) Manager's Unit. One (1) one-bedroom Unit shall be available for
designation as the manager's unit.
(e) Preservation of Extremely Low Income Units. In the event of a
foreclosure of the Construction Loan prior to Construction Loan Payoff, then the Authority and
the entity acquiring the Development at foreclosure shall apportion the affordability targeting in
a manner consistent with Health and Safety Code Section 34176.1. In the event of a loss of the
Section 8 subsidy, then the Authority and the entity the Developer shall apportion the
affordability targeting in a manner consistent with Health and Safety Code Section 34176.1. In
no event will the occupancy requirements imposed after a foreclosure of the Construction Loan
or deed in lieu of foreclosure require the Owner's successor in interest to provide more than
seven (7) Extremely Low Income Units.
(f) Fair Housing. The Development shall be operated at all times in
compliance with the provisions of: (1) the Unruh Act; (2) the California Fair Employment and
Housing Act, (3) Section 504 of the Rehabilitation Act of 1973; (4) the United States Fair
Housing Act, as amended, and (5) any other applicable law or regulation (including the
Americans With Disabilities Act, to the extent applicable to the Development). Owner agrees to
indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the
Authority) the Authority, and its boardmembers, officers and employees, from all suits, actions,
claims, causes of action, costs, demands, judgments and liens arising out of Owner's failure to
comply with applicable legal requirements related to housing for persons with disabilities. The
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provisions of this subsection shall survive expiration of the Term or other termination of this
Agreement, and shall remain in full force and effect.
2.2 Allowable Rent.
(a) Extremely Low Income Rent. Subject to Section 2.3 below, the Rent
charged to Residents of the Extremely Low Income Units shall not exceed one-twelfth (1/12th) of
thirty percent (30%) of thirty percent (30%) of Median Income, adjusted for Assumed Household
Size.
(b) Very Low Income Rent. Subject to Section 2.3 below, the Rent charged to
Residents of the Very Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent
(30%) of fifty percent (50%) of Median Income, adjusted for Assumed Household Size.
(c) Low Income Rent. Subject to Section 2.3 below, the Rent charged to
Residents of the Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%)
of sixty percent (60%) of Median Income, adjusted for Assumed Household Size.
(d) Assumed Household Size. In calculating the allowable Rent for the Units,
the following "Assumed Household Sizes" shall be utilized, provided that the Development
receives an allocation of low income housing tax credits, otherwise Assumed Household Size
shall be determined pursuant to the terms of Health and Safety Code Section 50052.5(h):
Number of Bedrooms Assumed Household Size
One 2
Two 3
Three 5
(e) No later than November 1 of each calendar year, the Authority shall
provide the Owner with a schedule of permissible maximum Extremely Low Income Rents, Very
Low Income Rents and Low Income Rents for the succeeding year. Under no circumstance may
Owner raise rents above the permissible maximum rents as allowed under the annual rent
schedule provided by the Authority.
2.3 Increased Income of Residents.
(a) Extremely Low Income Household to Very Low or Low Income
Household. If, upon recertification of a Resident's income, the Owner determines that a former
Extremely Low Income Household's Adjusted Income has increased and exceeds the qualifying
income for an Extremely Low Income Household set forth in Section 1.1 above, but does not
exceed the qualifying limit for a Very Low Income Household or Low Income Household as set
forth in Section 1.1 above, then, upon expiration of the Resident's lease:
(1) Such Resident's Unit may be considered a Very Low Income Unit
or Low Income Unit, as applicable;
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(2) Such Resident's Rent may be increased to a Very Low Income
Rent or a Low Income Rent, as applicable, upon sixty (60) days written notice to the Resident;
and
(3) The Owner shall rent the next available Unit to an Extremely Low
Income Household at an Extremely Low Income Rent.
(b) Very Low Income Household to Low Income Household. If, upon
recertification of a Resident's income, the Owner determines that a former Very Low Income
Household's Adjusted Income has increased and exceeds the qualifying income for a Very Low
Income Household set forth in Section 1.1above, but does not exceed the qualifying limit for a
Low Income Household as set forth in Section 1.1 above, then, upon expiration of the Resident's
lease:
(1) Such Resident's Unit may be considered a Low Income Unit;
(2) Such Resident's Rent may be increased to a Low Income Rent,
upon sixty (60) days written notice to the Resident; and
(3) The Owner shall rent the next available Unit to a Very Low
Income Household at a Very Low Income Rent.
(c) Non-Qualifying Household. If, upon recertification of the income of a
resident, the Owner determines that a former Extremely Low Income Household, Very Low
Income Household or Low Income Household has an Adjusted Income exceeding the maximum
qualifying income for a Low Income Household, such Resident shall be permitted to continue
occupying the Unit and upon expiration of the Resident's lease and upon sixty (60) days written
notice, the Rent may be increased to the lesser of one-twelfth (1/12th) of thirty percent (30%) of
actual Adjusted Income of the Resident, or fair market rent (subject to 24 C.F.R. 92.252(i)(2)
regarding low income housing tax credit requirements) and the Owner shall rent the next
available Unit to a Extremely Low Income Household, Very Low Income Household or Low
Income Household to meet the requirements of Section 2.1 above.
(d) Termination of Occupancy. Upon termination of occupancy of a Unit by a
Resident, such Unit shall be deemed to be continuously occupied by a household of the same
income level (e.g., Extremely Low Income Household, Very Low Income Household or Low
Income Household) as the income level of the vacating Resident, until such Unit is reoccupied,
at which time the income character of the Unit (e.g., Extremely Low Income Unit, Very Low
Income Unit or Low Income Unit) shall be redetermined. In any event, Owner shall maintain the
occupancy requirements set forth in section 2.1 above.
2.4 Resident Selection.
(a) The Owner must provide the Authority for its review and approval the
Owner's written marketing plan in compliance with the tenant selection plan approved pursuant
to Section 2.13 of the Disposition and Loan Agreement.
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(b) The Owner shall not discriminate against any applicants for tenancy on the
basis of source of income or rent payment (for example, without limitation, Temporary
Assistance for Needy Families (TANF) or Section 8), and the Owner shall consider a prospective
Resident's previous rent history of at least one (1) year, or such other time period the Owner
deems reasonable, as evidence of the prospective Resident's ability to pay the applicable Rent.
The ability to pay shall be demonstrated if the prospective Resident can document that the
prospective Resident's gross income is at least two (2) times the prospective rent. The Owner, in
the reasonable exercise of its discretion, may waive the requirement that the prospective
Resident's gross income equal at least two (2) times the prospective rent, and admit prospective
Residents with lower gross incomes.
2.5 Lease Provisions. The Owner shall include in leases for all Units provisions
which authorize the Owner to immediately terminate the tenancy of any household one or more
of whose members misrepresented any fact material to the household's qualification as an
Extremely Low Income Household, Very Low Income Household or Low Income Household, as
applicable. Each lease or rental agreement shall also provide that the household is subject to
annual certification in accordance with Section 3.1 below, and that, if the household's income
increases above the applicable limits for an Extremely Low Income Household, Very Low
Income Household or Low Income Household, as applicable, such household's Rent may be
subject to increase.
2.6 Condominium Conversion. The Owner shall not convert the Development units
to condominium or cooperative ownership or sell condominium or cooperative conversion rights
to the Property during the Term of this Agreement.
2.7 Units Available to the Disabled. Owner shall construct the Development to
comply with all applicable federal and state disabled persons accessibility requirements
including the Federal Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, Title II
and/or Title III of the Americans with Disabilities Act of 1990, and Title 24 of the California
Code of Regulations.
ARTICLE 3.
INCOME CERTIFICATION AND REPORTING
3.1 Income Certification. The Owner will obtain, and complete, as a condition to
initial occupancy and maintain on file annually thereafter, income certifications from each
Resident renting any of the Units. The Owner shall make a good faith effort to verify that the
income provided by an applicant or occupying household in an income certification is accurate
by taking two or more of the following steps as a part of the verification process: (a) obtain a
minimum of the three (3) most current pay stubs for all adults age eighteen (18) or older; (b)
obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar
search; (d) obtain the three (3) most current savings and checking account bank statements; (e)
obtain an income verification form from the applicant's current employer; (f) obtain an income
verification form from the Social Security Administration and/or the California Department of
Social Services if the applicant receives assistance from either of such agencies; or (g) if the
applicant is unemployed and has no such tax return, obtain another form of independent
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verification. Copies of Resident income certifications shall be available to the Authority upon
request.
3.2 Annual Report to Authority. The Owner shall submit to the Authority: (a) not
later than the forty-fifth (45th) day after the close of each calendar year, or such other date as may
be requested by the Authority, a statistical report, including income and rent data for all Units, an
assessment of compliance with the Resident Services Plan (including an assessment of the
Resident Services Plan outcomes), an assessment of compliance with the approved Management
Plan, an evaluation of the Management Agent, and (b) within fifteen (15) days after receipt of a
written request, any other information or completed forms requested by the Authority.
3.3 Additional Information. The Owner shall provide any additional information
reasonably requested by the Authority. The Authority shall have the right to examine and make
copies of all books, records or other documents of the Owner which pertain to the Development.
3.4 Records.
(a) The Owner shall keep and maintain at the Development, or elsewhere with
the Authority's written consent, complete, accurate and current records pertaining to the
Development, and shall permit any duly authorized representative of the Authority to inspect
records, including records pertaining to income and household size of Residents, Rent charged
Residents and affirmative marketing requirements. All Resident lists, applications and waiting
lists relating to the Development shall at all times be kept separate and identifiable from any
other business of the Owner and shall be maintained as required by the Authority, in a reasonable
condition for proper audit and subject to examination during business hours by representatives of
the Authority. The Owner shall retain copies of all materials obtained or produced with respect
to occupancy of the Units for a period of at least five (5) years.
(b) The Authority shall notify Owner of any records it deems insufficient.
Owner shall have fifteen (15) calendar days after the receipt of such a notice to correct any
deficiency in the records specified by the Authority in such notice, or if a period longer than
fifteen (15) days is reasonably necessary to correct the deficiency, then Owner shall begin to
correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably
possible.
3.5 Annual Operating Budget. The Owner, at least sixty (60) days prior to the end of
each of the Owner's fiscal year, shall furnish the Authority an Annual Operating Budget. Upon
receipt by the Authority of the proposed Annual Operating Budget, the Authority shall promptly
review the same and approve or disapprove it within ten (10) business days. If the Annual
Operating Budget is not approved by the Authority, the Authority shall set forth in writing and
notify the Owner of the Authority's reasons for withholding such approval. The Owner shall
thereafter submit a revised Annual Operating Budget for Authority approval, which approval
shall be granted or denied within ten (10) business days in accordance with the procedures set
forth above.
3.6 Approval of Use of Reserve Funds. The Owner agrees to create and maintain the
reserves required by the Approved Financing (as defined in the Disposition and Loan
Agreement) and the reserves in the amounts approved by the Authority as part of the Financing
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Plan submitted by the Owner pursuant to Section 2.4 of the Disposition and Loan Agreement.
Prior to the use of funds from the reserves, the Owner must submit a written request to withdraw
funds from the reserve account. The written request shall specify the amount requested and state
how the funds will be used. The Authority shall approve such request within thirty (30) days of
receipt of the written request for use of reserves; such request shall not be unreasonably
withheld. If the Authority fails to approve a request within the thirty (30) days, such request
shall be deemed approved.
3.7 Resident Services Plan.
(a) Not less than six (6) months prior to completion and not less than sixty
(60) days prior to the end of the Owner's fiscal year thereafter, Owner shall furnish to the
Authority a draft "Resident Services Plan." Upon receipt by the Authority of the proposed
Resident Services Plan, the Authority shall promptly review the same and approve or disapprove
it within ten (10) business days. If the Resident Services Plan is not approved by the Authority,
the Authority shall set forth in writing and notify the Owner of the Authority's reasons for
withholding such approval, which may include a request by the Authority for a change in the
nature or scope of resident services or a change in service provider, consistent with applicable
low income housing tax credit regulations. The Owner shall thereafter submit the revised
Resident Services Plan within ten (10) business days of notification of disapproval. The
Authority shall either approve or disapprove the submitted revised Resident Services Plan within
ten (10) business days of the date such revised Resident Services Plan is received by the
Authority, and shall approve the revised Resident Services Plan if the requested changes have
been made.
(b) If, as a result of a periodic review, the Authority determines, in its
reasonable judgment, that the Residents of the Development are not receiving material services
and/or there is a failure to achieve outcomes identified in the approved Resident Services Plan,
the Authority shall deliver notice to the Owner of its intention to, in addition to any other
remedies available to the Authority hereunder, require the Owner to: (1) replace the resident
service coordinator or resident services provider; or (2) meet in good faith to consider methods
for improving the resident services being offered to Residents of the Development; or (3) deliver
notice to the Owner requiring the Owner to cause the replacement of the resident services
coordinator or resident services provider with a resident services coordinator or resident services
provider selected by the Authority.
(c) If, after the above procedure, the Authority requires in writing the
replacement of the resident services coordinator or the resident services provider, the Owner
shall promptly dismiss the then resident services coordinator or resident services provider, as
applicable, and shall appoint as the resident services coordinator or resident services provider, as
applicable, a person or entity capable of meeting the standards for a resident services coordinator
or resident services provider, as applicable, under the Resident Services Plan and approved by
the Authority at the Authority's reasonable discretion.
(d) Any contract for the resident services coordinator or resident services
provider, as applicable, for the Development entered into by the Owner shall provide that the
contract can be terminated as set forth above. Failure to remove the resident services coordinator
or the resident services provider, as applicable, in accordance with the provisions of this Section
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shall constitute default under this Agreement, and the Authority may enforce this provision
through legal proceedings as specified in Section 6.5 below.
3.8 On-site Inspection. The Authority shall have the right to perform an on-site
inspection of the Development at least one (1) time per year upon forty-eight hours (48) prior
notice. The Owner agrees to cooperate in such inspection.
ARTICLE 4.
OPERATION OF THE AFFORDABLE DEVELOPMENT
4.1 Residential Use.
(a) The Development shall be operated only for residential use. No part of the
Development shall be operated as transient housing in which the term of Resident occupancy is
less than thirty (30) days.
(b) All Units in the Development shall be made available to and occupied by
income qualified households that include a "special needs" person, meaning a person with
disabilities that meets the requirements under 24. C.F.R. 5.403, who is in need of services or
would benefit from services to be provided at the Development.
4.2 Taxes and Assessments. The Owner shall pay all real and personal property
taxes, assessments, if any, and charges and all franchise, income, employment, old age benefit,
withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such
manner as to prevent any penalty from accruing, or any line or charge from attaching to the
Development; provided, however, that the Owner shall have the right to contest in good faith,
any such taxes, assessments, or charges. In the event the Owner exercises its right to contest any
tax, assessment, or charge against it, the Owner, on final determination of the proceeding or
contest, shall immediately pay or discharge any decision or judgment rendered against it,
together with all costs, charges and interest.
4.3 Nondiscrimination.
(a) All of the Units shall be available for occupancy on a continuous basis to
members of the general public who are income eligible. Developer shall not give preference to
any particular class or group of persons in renting the Units, except to the extent that the Units
are required to be leased to Extremely Low Income Households, Very Low Income Households,
or Low Income Households, or pursuant to Section 4.5 below.
(b) There shall be no discrimination against or segregation of any person or
group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any person claiming under or through him
or her, establish or permit any such practice or practices of discrimination or segregation with
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reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein leased.
(c) Notwithstanding the preceding paragraph, with respect to familial status,
the preceding paragraph shall not be construed to apply to housing for older persons, as defined
in Section 12955.9 of the Government Code. With respect to familial status, nothing in the
preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and
799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51
and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the
Government Code shall apply to the preceding paragraph.
(d) The provisions of this Section shall run with the land and survive
termination of this Agreement.
4.4 Section 8 Certificate Holders. The Owner will accept as residents, on the same
basis as all other prospective residents, persons who are recipients of federal certificates or
vouchers for rent subsidies pursuant to the existing housing program under Section 8 of the
United States Housing Act, or its successor. The Owner shall not apply selection criteria to
Section 8 certificate or voucher holders that are more burdensome than criteria applied to all
other prospective residents, nor shall the Owner apply or permit the application of management
policies or lease provisions with respect to the Development which have the effect of precluding
occupancy of units by such prospective Residents.
4.5 Priority to City, Dissolved RDA and Authority Displacees. To the maximum
extent permitted by law and provided that the applicants meet standard applicant screening
standards for the Development Borrower shall give a priority in the rental of any Units to eligible
households displaced by activity of the City, the Authority, or the Dissolved RDA, as provided in
Health and Safety Code Section 33411.3.
ARTICLE 5.
PROPERTY MANAGEMENT AND MAINTENANCE
5.1 Management Responsibilities. The Owner is responsible for all management
functions with respect to the Development, including without limitation the selection of
residents, certification and recertification of household size and income, evictions, collection of
rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of
capital items, and security. The Authority shall have no responsibility over management of the
Development. The Owner shall retain a professional property management company, approved
by the Authority in its reasonable discretion, to perform its management duties hereunder. A
resident manager shall also be required. Prior to the commencement of construction of the
Development, the Owner shall submit a proposed "Management Plan" to the Authority for
approval by the Authority. The Authority shall approve or disapprove (with written explanation
for disapproval) of the proposed management plan by notifying the Owner in writing within sixty
(60) days of the date of submission to the Authority.
5.2 Management Agent; Periodic Reports. The Development shall at all times be
managed by an experienced management agent reasonably acceptable to the Authority, with
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demonstrated ability to operate residential facilities like the Development in a manner that will
provide decent, safe, and sanitary housing (as approved, the "Management Agent"). As of the
date of this Agreement, Mercy Housing Management is approved as the Management Agent.
The Owner shall submit for the Authority's approval the identity of any proposed Management
Agent and on-site resident manager. The Owner shall also submit such additional information
about the background, experience and financial condition of any proposed Management Agent
and on-site resident manager as is reasonably necessary for the Authority to determine whether
the proposed Management Agent or on-site resident manager meets the standard for a qualified
Management Agent or on-site resident manager set forth above. If the proposed Management
Agent or on-site resident manager meets the standard for a qualified Management Agent or on-
site resident manager set forth above, the Authority shall approve the proposed Management
Agent or on-site resident manager by notifying the Owner in writing. Unless the proposed
Management Agent or on-site resident manager is disapproved by the Authority within thirty
(30) days, which disapproval shall state with reasonable specificity the basis for disapproval, it
shall be deemed approved.
5.3 Performance Review. In addition to the reporting requirements under Section 5.2
above, the Authority reserves the right to conduct an annual (or more frequently, if deemed
reasonably necessary by the Authority) review of the management practices and financial status
of the Development. The purpose of each periodic review will be to enable the Authority to
determine if the Development is being operated and managed in accordance with the
requirements and standards of this Agreement. The Owner shall cooperate with the Authority in
such reviews.
5.4 Replacement of Management Agent or On-Site Resident Manager.
(a) If, as a result of a periodic review, the Authority determines, in its
reasonable judgment, that the Development is not being operated and managed in accordance
with any of the material requirements and standards of this Agreement, the Authority shall
deliver notice to the Owner of its intention to cause replacement of the Management Agent or
on-site resident manager, including the reasons therefor. Within fifteen (15) days of receipt by
Owner of such written notice, Authority staff and the Owner shall meet in good faith to consider
methods for improving the financial and operating status of the Development. If, after a
reasonable period as determined by the Authority (not to exceed sixty (60) days after the meeting
between the Authority and the Owner), the Authority determines that the Owner is not operating
and managing the Development in accordance with the material requirements and standards of
this Agreement, the Authority may require replacement of the Management Agent or on-site
resident manager.
(b) If, after the above procedure, the Authority requires in writing the
replacement of the Management Agent or on-site resident manager, the Owner shall promptly
dismiss the then Management Agent or on-site resident manager within thirty (30) days notice,
and shall appoint as the Management Agent or on-site resident manager a person or entity
meeting the standards for a Management Agent or on-site resident manager set forth in
Section 5.2 above and approved by the Authority pursuant to Section 5.2 above.
(c) Any contract for the operation or management of the Development entered
into by the Owner shall provide that the contract can be terminated as set forth above. Failure to
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remove the Management Agent or on-site resident manager in accordance with the provisions of
this Section shall constitute default under this Agreement, and the Authority may enforce this
provision through legal proceedings as specified in Section 6.5, below.
5.5 Maintenance Requirements.
(a) The Owner agrees, for the entire Term of this Agreement, to maintain all
interior and exterior improvements, including landscaping, on the Development in good
condition and repair (and, as to landscaping, in a healthy condition), normal wear and tear
excepted, and in accordance with all applicable laws, rules, ordinances, orders and regulations of
all federal, state, county, municipal, and other governmental agencies and bodies having or
claiming jurisdiction and all their respective departments, bureaus, and officials, and in
accordance with the following maintenance conditions:
(1) Landscaping. The Owner agrees to have landscape maintenance
performed at least every other week, including replacement of dead or diseased plants with
comparable plants. Owner agrees to adequately water the landscaping on the Development in
compliance with City policies. No improperly maintained landscaping on the Development shall
be visible from public streets and/or rights of way.
(2) Yard Area. No yard areas on the Development shall be left
unmaintained, including:
(i) broken or discarded furniture, appliances and other,
household equipment stored in yard areas for a period exceeding one (1) week;
(ii) packing boxes, lumber, trash, dirt and other debris in areas
visible from public improvements or neighboring properties; and
(iii) vehicles parked or stored in other than approved parking
areas.
(3) Building. No buildings located on the Development may be left in
an unmaintained condition so that any of the following exist:
(i) violations of state law, uniform codes, or City ordinances;
(ii) conditions that constitute an unsightly appearance that
detracts from the aesthetics or value of the Development or constitutes a private or public
nuisance;
(iii) broken windows;
(iv) graffiti (must be removed within seventy-two (72) hours);
and
(v) conditions constituting hazards and/or inviting trespassers,
or malicious mischief.
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(4) Sidewalks. The Owner shall maintain, repair, and replace as
necessary all private sidewalks adjacent to the Development.
(b) The Authority places prime importance on quality maintenance to protect
its investment and to ensure that all Authority-assisted affordable housing projects within the
City are not allowed to deteriorate due to below-average maintenance. Normal wear and tear of
the Development will be acceptable to the Authority assuming the Owner agrees to provide all
necessary improvements to assure the Development is maintained in good condition. The Owner
shall make all repairs and replacements necessary to keep the Improvements in good condition
and repair.
(c) In the event that the Owner breaches any of the covenants contained in
this Section, and such default continues for a period of seven (7) days after written notice from
the Authority with respect to graffiti, debris, waste material, and general maintenance or thirty
(30) days after written notice from the Authority with respect to landscaping and building
improvements, then the Authority, in addition to whatever other remedy it may have at law or in
equity, shall have the right to enter upon the Development and perform or cause to be performed
all such acts and work necessary to cure the default. Pursuant to such right of entry, the
Authority shall be permitted (but is not required) to enter upon the Development and perform all
acts and work necessary to protect, maintain, and preserve the Improvements and landscaped
areas on the Development, and to attach a lien on the Development, or to assess the
Development, in the amount of the expenditures arising from such acts and work of protection,
maintenance, and preservation by the Authority and/or costs of such cure, including a ten percent
(10%) administrative charge, which amount shall be promptly paid by the Owner to the
Authority upon demand.
5.6 Safety Conditions.
(a) The Owner acknowledges that the Authority places a prime importance on
the security of Authority assisted projects and the safety of the residents and surrounding
community. The Owner agrees to implement and maintain throughout the Term the following
security measures in the Development:
(1) to the extent feasible employ defensible space design principles
and crime prevention measures in the operation of the Development including but not limited to
maintaining adequate lighting in parking areas and pathways;
(2) use its best efforts to work with the San Diego Sheriff's
Department to implement and operate an effective neighborhood watch program and participate
in the Crime Free Multi-Housing Program; and
(3) provide added security including dead-bolt locks for every entry
door, and where entry doors are damaged, replace them with solid-core doors.
(b) The Authority shall have the right to enter on the Development and/or
contact the San Diego County Sherriff's Department if it becomes aware of or is notified of any
conditions that pose a danger to the peace, health, welfare or safety of the Residents and/or the
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surrounding community, and to perform or cause to be performed such acts as are necessary to
correct the condition.
ARTICLE 6.
MISCELLANEOUS
6.1 Term. The provisions of this Agreement shall apply to the Development for the
entire Term even if the entire Authority Loan is paid in full prior to the end of the Term;
provided, however, that the provisions of Sections 2.1 and 4.3 of the Agreement shall run with
the Development and shall remain in effect in perpetuity. This Agreement shall bind any
successor, heir or assign of the Owner, whether a change in interest occurs voluntarily or
involuntarily, by operation of law or otherwise, except as expressly released by the Authority.
The Authority makes the Authority Loan on the condition, and in consideration of, this
provision, and would not do so otherwise.
6.2 Notice of Expiration of Term. The Owner must comply with all notice
requirements of Government Code Section 65863.10, Section 65863.11 and 65863.13, or
successor statutes. The Owner shall also file a copy of any notices sent by the Owner pursuant to
this Section with the Authority Executive Director.
6.3 Compliance with Disposition and Loan Agreement and Program Requirements.
The Owner's actions with respect to the Development shall at all times be in full conformity
with: (a) all requirements of the Disposition and Loan Agreement; (b) all requirements of the
Authority Deed of Trust; and (c) all requirements imposed on projects assisted with Housing
Fund Proceeds under California Health and Safety Code Section 33334.2 et seq.
6.4 Covenants to Run With the Land. The Authority and the Owner hereby declare
their express intent that the covenants and restrictions set forth in this Agreement shall run with
the land, and shall bind all successors in title to the Development, provided, however, that on the
expiration of the Term of this Agreement said covenants and restrictions shall expire, unless
otherwise expressly stated herein. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Development or any portion thereof shall be held
conclusively to have been executed, delivered and accepted subject to such covenants and
restrictions, regardless of whether such covenants or restrictions are set forth in such contract,
deed or other instrument, unless the Authority expressly releases such conveyed portion of the
Development from the requirements of this Agreement.
6.5 Enforcement by the Authority. If the Owner fails to perform any obligation under
this Agreement, and fails to cure the default within thirty (30) days after the Authority has
notified the Owner in writing of the default or, if the default cannot be cured within thirty (30)
days, failed to commence to cure within thirty (30) days and thereafter diligently pursue such
cure, the Authority shall have the right to enforce this Agreement by any or all of the following
actions, or any other remedy provided by law:
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(a) Calling the Loan. The Authority may declare a default under the
Promissory Note, accelerate the indebtedness evidenced by the Promissory Note, and proceed
with foreclosure under the Authority Deed of Trust.
(b) Action to Compel Performance or for Damages. The Authority may bring
an action at law or in equity to compel the Owner's performance of its obligations under this
Agreement, and/or for damages.
(c) Remedies Provided Under Disposition and Loan Agreement. The
Authority may exercise any other remedy provided under the Disposition and Loan Agreement.
(d) Cure by Investor Limited Partner. The Authority hereby agrees to accept
a cure of any default made or tendered hereunder by Investor Limited Partner on the same terms
and conditions as if such cure was made or tendered by the Owner.
6.6 Rights of Third Parties to Enforce Covenants. Notwithstanding any other
provisions of law, all covenants and restrictions contained herein which implement Health and
Safety Code Sections 33334.3 and/or 33413(b)(4), or successor provisions, shall run with the
land and shall be enforceable by the Authority, the City, and any of the parties listed in Health
and Safety Code Section 33334.3(f)(7), so long as such provision or successor provision remains
in effect.
6.7 Listing of Development in Database. The Owner hereby acknowledges and
agrees that Health and Safety Code Section 33418(c) requires that the Development be listed in a
database that shall be made available to the public on the internet and which will include the
street address, assessor's parcel number, and other information about the Development. The
Owner must disclose this requirement to all Residents and prospective Residents.
6.8 Attorneys Fees and Costs. In any action brought to enforce this Agreement, the
prevailing party shall be entitled to all costs and expenses of suit, including attorneys' fees. This
Section shall be interpreted in accordance with California Civil Code Section 1717 and judicial
decisions interpreting that statute.
6.9 Recording and Filing. The Authority and the Owner shall cause this Agreement,
and all amendments and supplements to it, to be recorded against the Development in the
Official Records of the County of San Diego.
6.10 Governing Law. This Agreement shall be governed by the laws of the State of
California.
6.11 Amendments. This Agreement may be amended only by a written instrument
executed by all the parties hereto or their successors in title, and duly recorded in the real
property records of the County of San Diego, California.
6.12 Notice. Formal notices, demands, and communications between the Authority
and the Owner shall be sufficiently given if and shall not be deemed given unless dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered by express
81 of 119 April 2, 2019, Item # 4.1
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delivery service, return receipt requested, or delivered personally, to the principal office of the
Authority and the Owner as follows:
If to the Owner:
Villa de Vida, L.P.
c/o Villa de Vida
10620 Treena Street, Suite 230
San Diego, CA 92131
Attn: Executive Director
Mercy Housing California
1500 South Grand Avenue, Suite 100
Los Angeles, CA 90015
Attn: Vice President
with copy to Investor Limited Partner:
Wells Fargo Affordable Housing
Community Development Corporation
MAC D1053-170
301 South College Street
Charlotte, NC 28288
Attention: Director of Tax Credit Asset Management
If to the Authority:
Poway Housing Authority
13325 Civic Center Drive
Poway, CA 22604
Attention: Executive Director
Such written notices, demands and communications may be sent in the same manner to such
other addresses as the affected party may from time to time designate by mail as provided in this
Section. Receipt shall be deemed to have occurred on the date shown on a written receipt for
delivery or refusal of delivery.
A copy of all notices delivered to Owner hereunder shall be delivered simultaneously to
the Investor Limited Partner.
6.13 Waiver of Requirements. Any of the requirements of this Agreement may be
expressly waived by the Authority in writing, but no waiver by the Authority of any requirement
of this Agreement shall, or shall be deemed to, extend to or affect any other provision of this
Agreement.
6.14 Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions of this
Agreement shall not in any way be affected or impaired thereby.
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6.15 Multiple Originals; Counterparts. This Agreement may be executed in multiple
originals, each of which is deemed to be an original, and may be signed in counterparts.
6.16 Tax Credit Program. Notwithstanding anything contained herein to the contrary,
for as long as the Property is subject to the requirements of the California and/or Federal Low-
Income Housing Tax Credit Program under the provisions of Section 42 of the Code and Section
23610.5 of the California Revenue and Taxation Code, as applicable (collectively, the "Tax
Credit Program") and there is a conflict between the requirements of the Tax Credit Program and
the affordability provisions set forth in 2.3 above, inclusive, then the provisions of the Tax Credit
Program shall prevail. That notwithstanding, the fact that this Regulatory Agreement and the
Tax Credit Program provide for greater, lesser or different obligations or requirements shall not
be deemed a conflict unless the applicable provisions are inconsistent and could not be
simultaneously enforced or performed.
[Signature Page Follows]
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1552\12\1949376.8 20
IN WITNESS WHEREOF, the Authority and the Owner have executed this Agreement
by duly authorized representatives, all on the date first written above.
AUTHORITY:
POWAY HOUSING AUTHORITY, a public body
corporate and politic
By: ______________________
Tina White, Executive Director
APPROVED AS TO FORM:
GOLDFARB & LIPMAN LLP,
Authority Special Counsel
By: _______________________
Rafael Yaquian
84 of 119 April 2, 2019, Item # 4.1
1552\12\1949376.8 21
OWNER:
VILLA DE VIDA POWAY, L.P., a California limited partnership
By: Villa de Vida GP, LLC, a California limited liability
company, its Managing General Partner
By: Mercy Housing Calwest, a California nonprofit
public benefit corporation, its sole member and
manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
By: VDV POWAY LLC, a California limited liability
company, its Administrative General Partner
By: Villa de Vida, Inc., a California nonprofit public
benefit corporation, its sole member and manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
85 of 119 April 2, 2019, Item # 4.1
1552\12\1949376.8
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
86 of 119 April 2, 2019, Item # 4.1
1552\12\1949376.8
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
87 of 119 April 2, 2019, Item # 4.1
1552\12\1949376.8 A-1
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
The land referred to is situated in the County of San Diego, City of Poway, State of California,
and is described as follows:
88 of 119 April 2, 2019, Item # 4.1
G-1
1552\12\2547457.7
ATTACHMENT G
NOTICE OF AFFORDABILITY RESTRICTIONS
ON TRANSFER OF PROPERTY
28 of 119 April 2, 2019, Item # 4.189 of 119 April 2, 2019, Item # 4.1
1552\12\1949743.5 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Poway Housing Authority
13325 Civic Center Drive
Poway, CA 92064
Attention: Executive Director
NO FEE FOR RECORDING PURSUANT
TO GOVERNMENT CODE
SECTIONS 6103 AND 27383
APN: 317-152-14-00
(Space above this line for Recorder's Use)
NOTICE OF AFFORDABILITY RESTRICTIONS
ON TRANSFER OF PROPERTY
NOTICE IS HEREBY GIVEN, that the Poway Housing Authority, a public
body, corporate and politic (the "Authority"), to carry out certain obligations under
the Community Redevelopment Law of the State of California (Health and Safety
Code Section 33000 et seq.), and the Redevelopment Plan for the Paguay
Redevelopment Project, has required Villa de Vida Poway, L.P., a California
limited partnership (the "Owner") to enter into certain affordability covenants and
restrictions entitled, Regulatory Agreement and Declaration of Restrictive
Covenants (the "Restrictions"), with reference to a housing development (the
"Development") to be constructed on that certain real property (the "Property")
located in the City of Poway, San Diego County, Assessor's Parcel No. 317-152-
14-00, and further described in Exhibit A incorporated herein by reference.
The affordability covenants and restrictions contained in the Restrictions include
without limitation and as further described in the Restrictions:
1. Seven (7) Units, including six (6) one-bedroom Units and one (1) two-
bedroom Units shall be rented to and occupied by or, if vacant, available
for occupancy by Extremely Low Income Households;
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1552\12\1949743.5 2
2. Eight (8) Units, including six (6) one-bedroom Units, and two (2) two-
bedroom Units shall be rented to and occupied by or, if vacant, available
for occupancy by Very Low Income Households;
3. Eleven (11) Units, including eleven (11) one-bedroom Units shall be
rented to and occupied by or, if vacant, available for occupancy by Low
Income Households;
4. Additional requirements concerning operation, management, and
maintenance of the Development are also imposed by the Restrictions.
In the event of any conflict between this Notice of Affordability Restrictions on
Transfer of Property (the "Notice") and the Restrictions, the terms of the
Restrictions shall prevail.
The Restrictions have been recorded concurrently herewith, and shall remain in
effect for fifty-seven (57) years from the date the Regulatory Agreement is
recorded with the Office of the San Diego County Recorder or until
_________ __, 20__.
This Notice is being recorded and filed by the Authority in compliance with Health
and Safety Code Sections 33334.3(f)(3) and (4) and Section 33413(c)(5), as
amended, and shall be indexed against the Authority and the Owner.
[Remainder of Page Left Intentionally Blank]
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1552\12\1949743.5
IN WITNESS WHEREOF, the parties have executed this Notice of Affordability
Restrictions on Transfer of Property on or as of ____________ __, 20__.
AUTHORITY:
POWAY HOUSING AUTHORITY, a public body
corporate and politic
By: _______________________
Tina White, Executive Director
APPROVED AS TO FORM:
GOLDFARB & LIPMAN LLP,
Authority Special Counsel
By: _______________________
Rafael Yaquian
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OWNER:
VILLA DE VIDA POWAY, L.P., a California limited partnership
By: Villa de Vida GP, LLC, a California limited liability
company, its Managing General Partner
By: Mercy Housing Calwest, a California nonprofit
public benefit corporation, its sole member and
manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
By: VDV POWAY LLC, a California limited liability
company, its Administrative General Partner
By: Villa de Vida, Inc., a California nonprofit public
benefit corporation, its sole member and manager
By: ________________________________
Name: ________________________________
Its: ________________________________
Date: _____________________
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
LEGAL DESCRIPTION
The land is situated in the State of California, County of San Diego, City of Poway, and is
described as follows:
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ATTACHMENT H
RESERVE DRAW SCHEDULE
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ATTACHMENT I
APPROVED INITIAL
RESIDENT SERVICES BUDGET
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ATTACHMENT J
APPROVED INITIAL RESIDENT
SERVICES PLAN
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GST-•
F -a,
APPROVED
City of Poway APPROVED AS AMENDED
y.,_.
SEE MINUTES)
4, ' t COUNCIL AGEDENIED 0NDAREPORT
REMOVEDIsme
CONTINUED
RESOLUTION NO.
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City CouncilFROM: Michael Obermiller, P.E., Director of Public Works
CONTACT: Eric Heidemann, Assistant Director of Public Works for Maintenance
Operations jeheidemann@poway.org
PC
SUBJECT: Initiation of Proceeding for the Formation of Landscape Maintenance
District 19-1
Summary:
Cities are authorized by the Landscaping and Lighting Act of 1972 to fund enhanced public
landscape improvements and maintenance services through the levy and collection of
assessments. Many assessment districts are formed at the time a developer builds a
development. As a community amenity, the developer will often install landscaping and other
improvements that are beyond a base level that a city would otherwise install if it were doing the
installation and maintenance. Because there are costs associated with installing and continuing
to maintain these enhanced improvements, a city will form an assessment district to fund the
cost of the enhancements. The City currently has five landscape maintenance districts that
were formed in this manner, including Landscape Maintenance District 87-1 (the Existing
District).
In 1987, the City formed the Existing District to fund enhanced landscape improvements and
services within certain developments located in the City. The maximum assessment rate for the
Existing District has remained unchanged since 1999 after the passage of Proposition 218.
Proposition 218 amended the California Constitution by adding Articles XIII C and XIII D.
Among other things, Article XIII D established new procedural requirements for levying any new
or increasing any existing assessments and placed substantive limitations on the use of the
revenues collected from assessments and on the amount of the assessment that may be
imposed on each parcel. Procedurally, Article XIII D requires that in order to impose a new or
increase an existing assessment on a property, a local agency must hold a public hearing, mail
advance notice of the public hearing to the record owner of each parcel proposed to be
assessed and conduct a ballot protest proceeding. The assessment ballot protest proceeding is
not an election or a vote for purposes of California Constitution Article II, nor is it subject to the
limitations and requirements of the California Elections Code governing elections. The ballot
provides affected property owners with the opportunity to indicate their support for, or opposition
to, the proposed assessments. Prior to the passage of Proposition 218, it was within the City
Council's authority to increase assessments as needed without an affirmative approval of
affected property owners.
The assessments imposed in the Existing District are no longer sufficient to fund its enhanced
improvements and services. Reserve funds have gradually been depleted in the Existing
District as expenses have grown and assessment revenues have not. Beginning in Fiscal Year
2016-17, it has been necessary to use a portion of the Existing District's reserves each year to
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pay for annual operations. Prolonged drought conditions and rising labor and recycled water
costs, contributed to the use of fund reserves. At this point, annual expenses exceed annual
revenue and the Existing District's reserves have been used to cover essential but unanticipated
expenses, like tree removal. When maintenance costs exceed the maximum allowable
assessment revenue, special balloting procedures may be implemented to give District
participants the opportunity to raise the maximum allowable assessment to cover the District's
maintenance needs.
In evaluating the improvements within the Existing District, the proximity of some of the
improvements to certain properties and the development of properties within the Existing
District, it was determined that certain properties should be detached from the Existing District
and a new landscape maintenance district should be formed. The detached properties are
proposed to be included in the Proposed District. The attached resolutions would initiate
proceedings for a ballot protest proceeding to form a new Landscape Maintenance District 19-1
Proposed District) that complies with the requirements of Article XIII D and would declare the
City's intention to form the Proposed District and detach certain properties from the Existing
District. The detachment of the properties from the Existing District would be conditioned on the
formation of the Proposed District. The Proposed District would result in adding twenty-one
properties previously not included in the Existing District, of which four would be levied an
assessment. The proposed assessments and the boundaries of the Proposed District are
supported by a detailed engineer's report (Report) prepared by an independent, registered
professional engineer (Engineer) certified by the State of California. The Proposed District
would include 360 assessed parcels, which the Engineer has identified will receive special
benefits from the enhanced improvement and maintenance services.
Recommended Action:
It is recommended that the City Council:
1. Adopt the resolution initiating proceedings for the formation of LMD 19-1 and directing
the preparation and filing of an Engineers Report; and
2. Adopt the resolution declaring the City's intention to form Landscape Maintenance
District No. 19-1; and to levy and collect annual assessments related thereto
commencing Fiscal Year 2019-20, provide notice of public hearing and mailing of
assessment ballots.
Discussion:
The Landscaping and Lighting Act of 1972 (State of California Streets and Highways Section
22500 and following) is a tool used by local government agencies to form Landscaping and
Lighting Districts to finance the costs of operating and maintaining enhanced landscaping and
appurtenant improvements, maintenance, and services over and above those generally
provided by the City. The City Council previously approved the formation of the Existing District
pursuant to the provisions of the Landscaping and Lighting Act of 1972, referred to as
LMD 87-1. The purpose of the proposed Landscape Maintenance District 19-1 (LMD)
assessment is to create a revenue mechanism to offset the expenditures related to landscaping
improvements and related services within the boundaries of the district that provide special
benefits to the properties in the district. Revenues generated within the District can only be
used to fund the services and improvements of the LMD for which they were imposed. The
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costs are distributed by equitably assessing properties in accordance with the special benefits
conferred.
In 1987 the landscape improvements for the Existing District•were initially constructed by the
developer of the Pomerado Business Park, Cadillac Fairview Industrial Development, Inc. At
the time, the boundary of the Existing District only included Pomerado Business Park (106 lots).
The district grew as additional subdivisions were added by written consent from the property
owner(s) at the time: Poway Corporate Center, Tech Business Center, Parkway Business
Centre, Parkway Summit, Trident Center and other miscellaneous properties. These properties
were originally assessed for the cost to maintain the landscaping improvements located within
the rights-of-way adjacent to Pomerado Road, Community Road, Scripps Poway Parkway and
portions of Stowe Drive. In 1995, due to foreclosures, landscape maintenance service levels
and watering were reduced, causing concern about the appearance of the landscaping along
roadways leading into the Poway Business Park. Certain landscape improvement areas
approximately 56.6 acres) of the Land Development Association (LDA) landscape maintenance
responsibilities were transferred to LMD 87-1. These landscape improvements are located
along portions of Scripps Poway Parkway, Stowe Drive and Community Road. At the time,
parcels located within Pomerado Business Park were paying LDA fees and LMD 87-1
assessments. Since LMD 87-1 was assuming maintenance responsibilities for the above
mentioned areas, the assessments fees for parcels located within the Pomerado Business Park
were assessed at a higher rate. Since 1995, Parkway Business Centre III, Poway Corporate
Center and other miscellaneous properties were added at the higher assessment rate.
Currently, the Existing District contains 514 assessed properties, including 196 residential
properties. Current annual assessments are $210.68 for residential properties, and $790 or
842.68 for commercial properties.
The Existing District is comprised of approximately 4,849,060 square feet of landscaping and
4,858 trees. In addition to the landscaping materials (trees, turf and shrubs), the District is also
responsible for maintaining irrigation infrastructure (controllers, pumps, timers, pipes and
emitters). The types of services that are contracted out include irrigation maintenance, mowing,
litter and weed control, tree trimming and general maintenance.
As expected, the cost to provide services has steadily increased over the years, increasing
Existing District expenditures. However, the assessment revenues have stayed the same.
When the Existing District was formed, it did not include an assessment escalation factor
e.g., cost of living index) because it was within the City Council's authority to increase
assessments when costs increased. The passage of Proposition 218 removed that ability and
instead made new or increased assessments subject to a property owner protest ballot process.
Additionally, the State of California has approved prevailing wage changes for landscape and
tree maintenance job classifications; therefore, a substantial increase in labor costs will continue
to burden the Existing District. This, combined with the need to replace aging infrastructure has
further accelerated the need for an immediate increase in district revenues. It is essential
sufficient revenues are generated to ensure the district is self-sustaining and offset the ongoing
annual expenditures.
Currently, ordinary annual expenses of the Existing District exceed annual revenues.
Consequently, there are no longer sufficient funds being collected to keep pace with expenses.
Without an increase in the assessments, the Existing District will not be able to upgrade
irrigation systems to be water efficient, execute ongoing repairs, and replace and preserve
landscaping; ultimately resulting in a reduction of services. Staff is concerned that over time this
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will result in poor appearance.
Recognizing the need to increase the revenue for the Existing District, and working within the
parameters of Proposition 218, it was necessary for the City to engage the services of an
assessment engineer to reevaluate the Existing District and identify every parcel upon which
special benefits are conferred from the enhanced landscape improvements and maintenance
services provided by the City. Because of the changes in the law governing assessments as a
result of Proposition 218, if the City wishes to increase the assessments to fund the
improvements, it cannot continue the Existing District in its current form. Rather the Existing
District and the proposed assessments must be evaluated for compliance with Article XIII D.
Analysis:
The City engaged the services of Willdan Financial Services (the Engineer) to perform an
analysis of the existing assessments in the Existing District and develop a recommendation to
revise the assessments in line with the landscape maintenance expenditures in compliance with
Proposition 218 and the Landscape and Lighting Act of 1972. Before imposing an assessment,
a public agency must first identify all parcels that will receive a special benefit from the proposed
improvements or services for which the assessment is proposed to be levied. The Engineer
reviewed the Existing District and determined the Existing District should be reorganized by
detaching certain commercial parcels from the Existing District and forming a new landscape
maintenance district (Proposed District) that includes the detached commercial parcels and
additional parcels that were not included in the Existing District but receive special benefits from
the improvements to be maintained within the Proposed District. The detachment of the
commercial properties from the Existing District would be conditioned upon the formation of the
Proposed District. As part of the reorganization, the existing residential development areas
within LMD 87-1 would remain part of LMD 87-1.
The Proposed District would provide sufficient assessment revenues to allow for the operation
and maintenance of landscaping/trees and appurtenant facilities; including, but not limited to:
labor, electricity, water, materials and contracted services. Notably, the option of assessing an
annual inflationary adjustment would be included along with the proposed assessments on an
annual basis. Accordingly, if approved, the maximum assessment rates established for the
improvements in the previous fiscal year may be adjusted by the lesser of three percent (3%) or
the percentage increase in the Consumer Price Index (CPI). The Consumer Price Index used
for the inflationary adjustment shall be for the San Diego Area for All Items for All Urban
Consumers (CPI-U), as developed by U.S. Bureau of Labor Statistics. The CPI used shall be
as determined by the Bureau of Labor Statistics for a similar period of time. This should allow
the Proposed District revenues to keep pace with inflationary cost increases over time.
The effort to re-engineer the Existing District began in 2018 by evaluating the relationship of the
properties currently being assessed relative to the location and the nature and extent of the
landscape improvements.
Based on the location of the improvements and proximity to all parcels in the area, the Engineer
initially identified several parcels/developments that are not part of the Existing District but
receive special benefit from the landscape improvements and maintenance services and should
therefore be added to the Proposed District (Attachment D). These properties were not a part of
any of the developments for which the Existing District was formed and, under California law
existing at the time of formation, were not required to be included in the Existing District.
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Also, the Engineer identified 288,708 square feet of landscaping to be removed from the
Proposed District to be funded by the General Fund, 29,653 square feet of landscaping to be
shared between the remainder of the Existing District and the Proposed District, and 21,238
square feet to be shared between the Proposed District and the General Fund.
A special benefit means a distinct benefit over and above general benefits conferred on real
property and the public at large. General enhancement of property values does not constitute a
special benefit". A special benefit must affect the assessed property in a way that is particular
and distinct from its effect on other parcels and that real property in general and the public at
large do not share.
Using the Engineer's preliminary analysis, staff held a series of meetings/open houses in
February and March 2019 to inform property owners of the financial condition of the Existing
District; the preliminary engineering analysis; and the proposed balloting process to re-engineer
the Existing District, form the Proposed District, establish assessments in the Proposed District
and provide for inflationary adjustments to the proposed maximum assessments.
Assessments are computed based on the number of equivalent benefit units (EBU) in the
Proposed District.
The Proposed District assessment rates for an EBU is $840.00 annually. If the Proposed
District is formed, properties located within the Parkway Business Centre, Poway Corporate
Centre and Tech Center will experience an increase in their annual maximum assessment from
790 to $840 per EBU and those properties within Pomerado Business Park, Parkway Summit
and other miscellaneous properties will experience a decrease in their annual maximum
assessment from $842.68 to $840. Additionally, a provision has been included to allow for
appropriate inflationary adjustments in future assessments, at the discretion of the City Council,
in line with the San Diego Consumer Price Index (capped annually at 3%).
General Benefit
If the Proposed District is formed, the City will provide limited (as-needed) weed abatement,
rodent control and erosion control services ("baseline level of service") for the landscape areas
currently maintained within the Proposed District and elsewhere in the City. This baseline level
of service would typically provide for periodic maintenance of the improvement areas necessary
to ensure public safety and essential property protection. The primary purpose of baseline
services is to avoid negative impacts on adjacent roadways and potential property damage
resulting from erosion or fire hazards but results in a far less visually pleasing environment than
is created with the enhanced levels of improvements and services associated with the regular
landscape maintenance provided in the Existing District and Proposed District.
For the purpose of the Proposed District, the City's general benefit contribution accounts for this
baseline level of service. However, it is recognized that the arterial streets within this district are
routinely traveled by the public and other property owners within the City. While the landscape
improvements along these arterial streets do not provide special benefits to properties outside
the District or the public at large, they do provide some measure of indirect general benefit to
other properties in the City and the public at large. Therefore, the general benefit contribution
for the Proposed District is assumed to be an additional 13% of the overall maintenance cost to
account for this indirect, general benefit. The proposed annual general benefit contribution by
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the City for Fiscal Year 2019-20 is approximately $143,235.
Procedural Requirements:
As set forth in the Landscaping and Lighting Act of 1972 and Proposition 218, local agencies
are required to follow these steps:
1. Adopt a resolution to initiate formation of an assessment district and direct the Engineer
to prepare and file a report in accordance with Streets and Highway Code (April 2, 2019)
and direct the City Clerk to mail a notice of the Public Hearing which will include a ballot
for the affected property owner to indicate his or her support for or opposition to the
proposed assessment. A draft Resolution of Initiation is enclosed as Attachment A. The
Preliminary Engineer's Report prepared by Willdan Financial Services is enclosed as
Attachment C and will be posted on the City's website.
2. Adopt a resolution declaring its intent to: (i) approve a Preliminary Engineer's Report
and schedule the Public Hearing (May 21, 2019); (ii) form the Proposed District;
iii) detach properties from the Existing District, subject to and conditioned upon the
formation of the Proposed District; and (iv) provide for an annual levy and collection of
assessment. A draft Resolution of Intent is enclosed as Attachment B.
3. Develop a Notice of Public Hearing (scheduled for May 21, 2019) on the formation of the
Proposed District, prepare a Ballot, and send both documents to the owner of record for
each parcel 45 days in advance of the Public Hearing (on or before April 5, 2019).
4. The City Clerk is to collect all ballots received prior to the close of the Public Hearing that
is proposed to be scheduled on May 21, 2019, at 7:00 p.m. The ballots will be tabulated,
and the results will be presented to the City Council later in the City Council meeting that
evening or at a subsequent City Council Meeting.
5. If a majority of the submitted ballots support the formation of the Proposed District, the
City Council may elect to establish and form the Proposed District. If the Proposed
District is established and formed, the parcels currently included in the Existing District
and identified in Exhibit A to the resolution of intention to form the Proposed District will
be detached from the Existing District. Adopt a resolution ordering the annual levy of
assessments within the Proposed District (May 21, 2019). Upon approval, the new
assessments will be collected through the San Diego County Office of the Assessor,
along with annual property tax bills effective in Fiscal Year 2019-20.
6. If a majority of the submitted ballots do not support the formation of the Proposed
District, adopt a resolution ordering the annual levy of assessments within the Existing
District (May 21, 2019). This means that the Existing District, and current assessments
without a cost escalator) will remain in effect.
7. Submit levies to the County of San Diego (no later than August 9, 2019).
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For a benefit assessment such as this, each property owner of record must be mailed a notice
and a ballot to mark and mail back. The ballots and notice of the Public Hearing are required to
be mailed not less than 45 days prior to the public hearing and the outcome is determined only
from the ballots timely returned and received (not the total number of properties). Each ballot
will show the exact amount of that property's proposed assessment. A majority protest exists if,
upon the conclusion of the public hearing, ballots submitted in opposition to the assessment
exceed the ballots submitted in favor of the assessment. In tabulating the ballots, the ballots
are weighted according to the proportional financial obligation (i.e., dollar amount of the
assessment) of the affected property. Tabulation of the ballots will be conducted under the
supervision and direction of the City Clerk.
If the Council does not adopt the Resolutions shown in steps 1 and 2 above, the ballot protest
cannot move forward. Due to time constraints, the only option would be for the Existing District,
and current assessments (without a cost escalator), to remain in effect. As stated earlier in this
report, the Existing District assessments fall short of covering expenses. Without an increase in
the assessments, service levels will decline.
Environmental Review:
This item is not subject to California Environmental Quality Act review.
Fiscal Impact:
The Proposed District, if approved, will generate an estimated Fiscal Year 2019-20 annual
assessment and general fund contribution revenues of approximately $737,467 and $143,235,
respectively, to cover the operations and maintenance expenditures. Anticipated annual
expenses of the Proposed District are $880,048.
Public Notification:
Below is a summary of staffs efforts to communicate with affected property owners:
Held two (2) Open Houses at the City Council Chambers
March 13 and March 27, 2019);
Posted an interactive map showing current and proposed assessments, a FAQ
sheet, question and answers, and the previous year's Engineer's Report on a
dedicated page on the City's website;
Met with individual property owners at City Hall; and
Fielded phone calls with property owners, Poway Business Park Association, brokers
and property management companies.
Affected property owners were also made aware of this item by direct letter sent to all
property owners within the Proposed District.
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Attachments:
A. Resolution initiating proceedings for the formation of LMD 19-1 and directing the
preparation of and filing of an Engineer's Report
B. Resolution declaring the City's intention to form Landscape Maintenance District
No. 19-1; and to levy and collect annual assessments related thereto, commencing
Fiscal Year 2019-20
C. Preliminary Engineer's Report 19-1
D. Map of Proposed LMD 19-1
Reviewed/Approved By: Reviewed By: Approved By:
Wendy Kaserman Alan Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
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RESOLUTION NO. 19-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, INITIATING PROCEEDINGS FOR THE
FORMATION OF LANDSCAPE MAINTENANCE DISTRICT NO.
19-1; DIRECTING THE PREPARATION AND FILING OF AN
ENGINEER'S REPORT RELATED THERETO, PURSUANT TO
THE PROVISIONS OF PART 2 OF DIVISION 15 OF THE
CALIFORNIA STREETS AND HIGHWAYS CODE; AND
INITIATING PROCEEDINGS TO DETACH TERRITORY FROM
CITY OF POWAY LANDSCAPE MAINTENANCE DISTRICT 87-1
WHEREAS, pursuant to the provisions of the Landscaping and Lighting Act of 1972,
California Streets and Highways Code section 22500 et seq. (the "1972 Act"), the City Council
of the City of Poway (the "City"), desires to initiate proceedings for the formation of an
assessment district within the City to be known and designated as Landscape Maintenance
District No. 19-1 (the "District"), and to levy and collect annual assessments for the District
commencing in Fiscal Year 2019-20 to pay, in whole or in part, for the special benefit costs
associated with the operation, maintenance, installation, and servicing of local landscaping
improvements and appurtenant facilities related thereto;
WHEREAS, pursuant to the provisions of section 22605 et seq. of the 1972 Act, the City
also desires to initiate proceedings to detach territory from the City's Landscape Maintenance
District 87-1 ("LMD 87-1") and to include such territory in the District;
WHEREAS, pursuant to section 22585 of the 1972 Act, proceedings for the formation of
an assessment district shall be initiated by resolution and that resolution shall generally describe
the proposed improvements, describe the proposed assessment district and specify a distinctive
designation for the district, and order the engineer to prepare and file a report in accordance
with section 22565 et seq. of the 1972 Act;
WHEREAS, pursuant to Section 22606 of the 1972 Act, proceedings to detach territory
from LMD 87-1 may be undertaken concurrently with proceedings for the formation of the
District and such proceedings may be conditioned on the completion of the proceedings to form
the District;
WHEREAS, the City has retained Willdan Financial Services ("Willdan") as the
Assessment Engineer of Work for the purpose of assisting with the formation of the District, the
establishment of annual assessments, and to prepare and file a report with the City Clerk
concerning the formation of Landscape Maintenance District No. 19-1 and the proposed annual
levy of assessments in accordance with the 1972 Act and the provisions of the California
Constitution Article XIIID (the "Constitution") and the Proposition 218 Omnibus implementation
Act, being Government Code section 53750 et seq. (the "Omnibus Act"); and
WHEREAS, the properties proposed to be detached from LMD 87-1 if the District is
formed are identified in Exhibit A to this Resolution, and by this reference are incorporated
herein.
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Resolution No. 19-
Page 2
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Poway as
follows:
Section 1: That the foregoing recitals are true and correct.
Section 2: That the City proposes to form Landscape Maintenance District No. 19-1
incorporating all lots and parcels of land located in the southern region of the City, generally
east of Pomerado Road, west and north of the City limits, and south of Metate Lane for which
the improvements provide special benefits; and to levy and collect annual assessments for the
District commencing in Fiscal Year 2019-20 to pay for the special benefit expenses associated
with the operation, maintenance, installation and servicing of the local landscaping
improvements and appurtenant facilities as authorized by the 1972 Act.
Section 3: The territory within the District as described above incorporates
approximately three hundred sixty (360) parcels totaling approximately one thousand six
hundred seventy-eight (1,678) acres which are inclusive of parcels identified on the San Diego
County Assessor's Parcel Maps (APN Maps) as Book 317 Pages 22, 23, 27, 28 and 81; Book
320 Pages 01, 03, 20 and 22; and Book 323 Pages 09, 48, 49, and 50.
Section 4: That the improvements to be provided by the District generally include,
but are not limited to, the installation, maintenance, operation and servicing of local landscaping
improvements and appurtenant facilities that are provided for the benefit of real property within
the District. The improvements to be provided by the District include landscaping within
specified public areas, rights-of-way and/or dedicated easements that have been installed in
connection with the development of properties for the benefit of those properties and/or
proportionately shared with nearby adjacent developments or were otherwise considered
necessary or required for the development of properties within the District to their full and best
use. The work to be performed within the District may include, but is not limited to (as
applicable), the personnel; materials; equipment; electricity; water; contract services;
maintenance, repair and rehabilitation of the improvements; and incidental expenses required to
operate the District and provide the improvements and services authorized by the 1972 Act.
Section 5: In accordance with Section 22586 of the 1972 Act, the City Council
hereby directs the Assessment Engineer of Work to prepare and file with the City Clerk an
Engineers Report concerning the formation of the District; the improvements connected
therewith and the annual levy of assessments commencing with the Fiscal Year 2019-20, in
accordance with Chapter 1, Article 4 (commencing with Section 22565) of the 1972 Act.
10 of 49 April 2, 2019, Item #4.2
Resolution No. 19-
Page 3
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California, ata regular meeting this 2nd day of April 2019.
Steve Vaus, Mayor
ATTEST:
Faviola Medina, CMC, City Clerk
STATE OF CALIFORNIA )
SS
COUNTY OF SAN DIEGO )
I, Faviola Medina, City Clerk of the City of Poway, California, do hereby certify under penalty of
perjury that the foregoing Resolution No. 19-was duly adopted by the City Council at a
meeting of said City Council held on the 2nd day of April 2019, and that it was so adopted by
the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
Faviola Medina, CMC, City Clerk
City of Poway
11 of 49 April 2, 2019, Item #4.2
Resolution No. 19-
Page 4
RESOLUTION NO. 19-_
EXHIBIT A
Assessor Parcels to be Detached from Landscape Maintenance District No. 87-1
317-222-12-00 317-222-23-00 317-222-24-00 317-222-25-00 317-222-26-00
317-222-27-00 317-223-01-00 317-223-02-00 317-223-03-00 317-223-04-00
317-223-05-00 317-223-07-00 317-223-11-00 317-223-12-00 317-223-13-00
317-223-14-00 317-223-15-00 317-223-18-00 317-223-19-00 317-223-20-00
317-223-21-00 317-223-27-01 317-223-27-02 317-223-28-00 317-223-30-00
317-223-31-00 317-223-32-00 317-223-33-00 317-223-37-00 317-223-38-00
317-223-39-00 317-224-01-00 317-224-06-00 317-224-07-00 317-224-15-00
317-224-16-00 317-224-18-00 317-224-19-00 317-224-20-00 317-224-21-00
317-224-22-00 317-224-23-00 317-224-24-00 317-225-01-00 317-225-04-00
317-225-05-00 317-225-06-00 317-225-07-00 317-225-10-00 317-225-11-00
317-225-12-00 317-225-13-00 317-225-14-00 317-225-15-00 317-225-16-00
317-225-17-00 317-225-18-00 317-270-08-00 317-270-09-01 317-270-09-02
317-270- 09-03 317-270-09-04 317-270-09-05 317-270-09-06 317-270-09- 07
317-270-09-08 317-270-09-09 317-270-09-10 317-270-09-11 317-270-09-12
317-270-09-13 317-270-09-14 317-270-10-01 317-270-10-02 317-270-10-03
317-270-10-04 317-270-10-05 317-270-10-06 317-270-10-07 317-270-10-08
317-270-10-09 317-270-10- 10 317-270-10-11 317-270-10-12 317-270-10-13
317-270-10-14 317-270-11-00 317-270-12-00 317-270-13-00 317-270-14-00
317-270-15-00 317-270-16-00 317-270-18-00 317-270-19-00 317-270-20-00
317-270-21-00 317-270-22-00 317-270-23-00 317-270-24-00 317-270-25-00
317-270-31-00 317-270-32-00 317-270-40-00 317-270-41-00 317-270-42-00
317-270-43-00 317-270-44-00 317-270-45-00 317-270-46-00 317-270-49-00
317-270-50-00 317-270-51-00 317-270-54-00 317-270-55- 00 317-270-56-00
317-270-59-00 317-270-60-00 317-270-61-00 317-270-62-00 317-270-63-00
317-271-02-00 317-271-03- 00 317-271-04-00 317-271-09-00 317-271-10-00
317-271-12-00 317-271-13-00 317-271-15-00 317-271-16-00 317-271-18-00
317-271-19-00 317-271-20-00 317-271-21-00 317-271-25-00 317-271-26-00
317-271-27-00 317-271-28-00 317-271-33-00 317-271-34-00 317-271-35-00
317-271-41-00 317-271-42-00 317-271-46-00 317-271-48-00 317-271-49- 00
317-271-51-00 317-271-56-00 317-271-57-00 317-271-58-00 317-271-59-00
317-271-62-00 317-271-63-00 317-271-67-00 317-271-68-00 317-271-74-00
317-271-75-00 317-271-77-00 317-271-80-00 317-271-81-00 317-271-82-00
317-271-83-00 317-271-84-00 317-271-85-00 317-271-86-00 317-271-87-00
A-1
12 of 49 April 2, 2019, Item #4.2
Resolution No. 19-
Page 5
317-271-89-00 317-271-91-00 317-271-92-00 317-271-93-00 317-271-94-00
317-271-95-00 317-271-96-00 317-280-21-00 317-280-35-00 317-280-36-00
317-280-37-00 317-280-47-00 317-280-48-00 317-280-56-00 317-280-57-00
317-280-58-00 317-280-60-00 317-280-63-00 317-280-65-00 317-280-66-00
317-280-68-00 317-280-70-00 317-280-71-00 317-280-72-00 317-280-73-00
317-280-74-00 317-280-75-00 317-280-76-00 317-280-77-00 317-280-78-00
317-280-79-00 317-280-80-00 317-280-82-00 317-280-83- 00 317-280-85-00
317-280-86-00 317-281-08-00 317-281-09-00 317-281-10-00 317-281-11-00
317-281-14-00 317-281-15-00 317-281-16-00 317-281-22-00 317-281-23-00
317-281-24-00 317-281-25-00 317-281-26-00 317-281-27-00 317-281-29-00
317-810-04- 00 317-810-05-00 317-810-09-00 317-810-12-00 317-810-13-00
317-810-14-00 317-810-15-00 317-810-16-00 317-810-17-00 317-810-18-00
317-810-19-00 317-810-23-00 317-810-24-00 317-810-28-00 317-810-29-00
317-810-30- 00 317-810-31-00 317-810-32-00 317-810-33-00 317-810-36-00
317-810-37- 00 317-810-38-00 320-011-27-00 320-200-46-00 320-200-47-00
320-200-48-00 320-200-49-00 320-200-50-00 320-220-02-00 320-220-03-00
320-220-04-00 320-220-05-00 320-220-06-00 320- 220-07-00 320-220-12-00
320-220-15-00 320-220-16-00 320-220-18-00 320-220-21-00 320-220-22-00
320-220-24-00 320-220-25-00 323-091-08-00 323-091-09-00 323-091-10-00
323-091-11-00 323-091-12-00 323-092-17-00 323-092-18-00 323-092-20- 00
323-092-21-00 323-092-22-00 323-092-23-00 323-092-24-00 323-092-25-00
323-092-26-00 323-092-27-00 323-092-28-00 323- 092-29-00 323-092-31-00
323-092-32- 00 323-092-33-00 323-092-34-00 323-092-35-00 323-092-37-00
323-092-38- 00 323-480-03-00 323-480-04-00 323-480-10-00 323-480-11-00
323-480-12-00 323-480-13-00 323-480-14-00 323-480-16-00 323-480-18-00
323-480-19-00 323-480-20-00 323-480-21-00 323-480-22-00 323-480-23-00
323-481-02-00 323-481-03-00 323-481-10-00 323-481-11-00 323-481-12-00
323-481-13-00 323-481-14-00 323-481-15-00 323-481-16-00 323-481-19-00
323-482-20-00 323-482-22-00 323-482-23-00 323-482-24-00 323-482-25-00
323-482-26-00 323-482-29-00 323-482-30-00 323-500-12-00 323-500-15-00
323-500-20-00 323-500-22-00 323-500-23-00 323-500-25-00 323-500-27-00
323-500-28-00 323-500-29-00 323-501-01-00 323-501-02-00 323-501-03-00
323-501-04-00 323-501-05-00
A-2
13 of 49 April 2, 2019, Item #4.2
RESOLUTION NO. 19-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, DECLARING THE CITY'S INTENTION TO
FORM LANDSCAPE MAINTENANCE DISTRICT NO. 19-1 AND
TO LEVY AND COLLECT ANNUAL ASSESSMENTS RELATED
THERETO COMMENCING FISCAL YEAR 2019-20, PURSUANT
TO THE PROVISIONS OF PART 2 OF DIVISION 15 OF THE
CALIFORNIA STREETS AND HIGHWAYS CODE; CALLING FOR
A PROPERTY OWNER PROTEST PROCEEDING, TO SUBMIT
TO THE QUALIFIED PROPERTY OWNERS THE QUESTION OF
LEVYING SUCH ASSESSMENTS AND ESTABLISHING AN
ASSESSMENT RANGE FORMULA FOR SAID DISTRICT
PURSUANT TO THE PROVISIONS OF THE CALIFORNIA
CONSTITUTION, ARTICLE XIII D; AND DECLARING ITS
INTENTION TO DETACH PARCELS OF PROPERTY FROM
LANDSCAPE MAINTENANCE DISTRICT 87-1
WHEREAS, the City Council of the City of Poway (the "City"), pursuant to provisions of
the Landscaping and Lighting Act of 1972, California Streets and Highways Code section 22500
et seq. (the "1972 Act"), did by previous Resolution, initiate proceedings for the formation of an
assessment district within the City to be known and designated as Landscape Maintenance
District No. 19-1 (the "District"), and to levy and collect annual assessments for the District
commencing in Fiscal Year 2019-20 to pay, in whole or in part, for the special benefit costs
associated with the operation, maintenance, installation and servicing of local landscaping
improvements and appurtenant facilities related thereto;
WHEREAS, pursuant to section 22605 et seq. of the 1972 Act, certain lots and parcels of
land currently located in City of Poway Landscape Maintenance District 87-1 ("LMD 87-1") are
proposed to be detached therefrom and included in the District, such lots and parcels of land are
identified in Exhibit A of this Resolution (the "Detached Parcels");
WHEREAS, pursuant to section 22606 of the 1972 Act, proceedings to detach the
Detached Parcels from LMD 87-1 may be undertaken concurrently with proceedings for the
formation of the District;
WHEREAS, pursuant to section 22606 of the 1972 Act, the detachment of the Detached
Parcels may be conditioned upon the formation of the District;
WHEREAS, the City Council intends to: (i) conduct a property owner ballot protest
proceeding regarding the proposed assessments in compliance with the substantive and
procedural requirements of California Constitution article XIII D, section 4 (the "California
Constitution") and the Proposition 218 Omnibus Implementation Act (the "Omnibus Act"), being
Government Code section 53750 et seq.; (ii) form the District; (iii) detach the Detached Parcels,
subject to and conditioned upon the formation of the District; and (iv) levy and collect new
assessments against lots and parcels of land within the District to pay the cost and expenses
related to the special benefits received from the operation, maintenance, installation, and
servicing of landscaping improvements, and appurtenant facilities related thereto; and
14 of 49 ATTACHMENT B April 2, 2019, Item #4.2
Resolution No. 19-
Page 2
WHEREAS, the Assessment Engineer of Work has prepared and filed an Engineer's
Report with the City Clerk regarding the formation of the District and the levy of annual
assessments connected therewith commencing in Fiscal Year 2019-20 (beginning July 1, 2019
and ending June 30, 2020), pursuant to section 22586 of the 1972 Ad, and said report has been
presented to the City Council and is incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Poway as
follows:
Section 1: That the foregoing recitals are true and correct.
Section 2: The Engineer's Report as presented, consists of the following:
Section 2a: The Plans and Specifications which describe the boundaries of the District,
the zones of benefit ("Zones") established therein and the improvements associated therewith
that provide special benefits to the parcels therein;
Section 2b: The Method of Apportionment that details the method of calculating
proportional special benefit and the annual assessment obligation for each affected parcel;
Section 2c: The Estimate of Improvement Costs, including the calculation of the
assessments and the estimated annual funding (Budget) required for the annual operation,
maintenance, installation, and servicing of the landscaping improvements and appurtenant
facilities, and specifically the costs associated with the improvements determined to be of special
benefit to parcels within the District, establishing the proposed maximum assessments and the
assessments for Fiscal Year 2019-20;
Section 2d: The Assessment Range Formula (Annual Inflationary Adjustment) to be
applied to the proposed Maximum Assessment Rates per Equivalent Benefit Unit in subsequent
fiscal years. The proposed Maximum Assessments including the Assessment Range Formula
shall be presented to the property owner(s) of record in a protest ballot proceeding pursuant to
the California Constitution and the Omnibus Act;
Section 2e: A District Diagram outlining the boundaries of the District and identifying
the Zones therein for Fiscal Year 2019-20; and
Section 2f: Reference to the proposed Assessment Roll on file with the City Clerk,
which contains the proposed maximum assessment and levy of assessment for Fiscal
Year 2019-20 for each Assessor Parcel Number identified within the District.
Section 3: The City Council hereby approves the Engineer's Report on a preliminary
basis as submitted or amended by direction of this City Council, and orders said Report to be filed
in the Office of the City Clerk as a permanent record and to remain open to public inspection, and
by reference the Engineer's Report is made part of this Resolution.
Section 4: The City Council hereby declares its intention to form the assessment
district to be known and designated as Landscape Maintenance District No. 19-1 pursuant to
Chapter 2, Article 1, Section 22587 of the 1972 Act, and to levy and collect annual assessments
against parcels of land within the District commencing with Fiscal Year 2019-20 in accordance
with the 1972 Act and the provisions of the California Constitution.
15 of 49 April 2, 2019, Item #4.2
Resolution No. 19-
Page 3
The City Council further declares its intention to detach the Detached Parcels set forth in
Exhibit A hereto from LMD 87-1, subject to and conditioned on the formation of the District.
The City Council further declares its intention to conduct a Public Hearing regarding the
District formation and the proposed levy of new assessments pursuant to the provisions of the
1972 Act, the California Constitution, and the Omnibus Act, and thereby calls for a property owner
protest ballot proceeding related thereto. The City Council finds that the public's best interest
requires such action and levy of assessments.
Section 5: The City Council hereby finds that the territory within the proposed District
as identified in the Engineer's Report consists of, and includes those lots, parcels and
subdivisions of land that will receive special benefits from the improvements to be provided.
Section 6: The proposed improvements for the District as identified in the Engineer's
Report generally include, but are not limited to, the installation, maintenance, operation and
servicing of local landscaping improvements and appurtenant facilities that are provided for the
benefit of real property within the District. The improvements to be provided by the District include
landscaping within specified public areas, rights-of-way and/or dedicated easements that have
been installed in connection with the development of properties for the benefit of those properties
and/or proportionately shared with nearby adjacent developments or were otherwise considered
necessary or required for the development of properties within the District to their full and best
use. The work to be performed within the District may include, but is not limited to (as applicable),
the personnel; materials; equipment; electricity; water; contract services; maintenance, repair and
rehabilitation of the improvements; and incidental expenses required to operate the District and
provide the improvements and services authorized by the 1972 Act. The Engineer's Report
prepared and filed with the City Clerk provides a more detailed description of the improvements
to be provided and for which properties shall be assessed.
Section 7: The City Council hereby determines that to provide the improvements
described in section 6 of this resolution, it is necessary to levy and collect assessments against
lots and parcels within the District commencing in Fiscal Year 2019-20. The Engineer's Report
referred to in Section 2 of this resolution establishes the proposed maximum assessments for the
District including the annual inflationary adjustment to the maximum assessment rate; and the
assessments necessary to provide for the annual operation, administration, services and
maintenance of the improvements commencing in Fiscal Year 2019-20.
Section 8: Pursuant to the California Constitution and in accordance with the Omnibus
Act, an assessment ballot proceeding is hereby called on the matter of confirming the proposed
new assessments for the District. The ballots and notices so authorized shall be distributed by
first class mail to the property owners of record as of the last County equalized roll not less than
45 days prior to the Public Hearing, and each property owner may return the ballot by mail or in
person to the City Clerk not later than the conclusion of the Public Hearing for this matter.
Section 9: The City Council hereby authorizes and directs the City Clerk or her
designee to prepare and mail, or cause to be mailed, notice of the Public Hearing; and in the
same or separate mailing, mail the property owner protest ballot(s) to the subject property owner
regarding the proposed levy of assessments and the assessment range formula outlined in the
Engineer's Report, for return receipt prior to the date and time of the Public Hearing set forth in
this Resolution.
16 of 49 April 2, 2019, Item #4.2
Resolution No. 19-
Page 4
Section 10: The City Council hereby declares its intention to conduct a Public Hearing
concerning the District, the improvements, and the levy of assessments, and the detachment of
the Detached Parcels in accordance with Sections 22588, 22592, 22606, and 22609 of the
1972 Act, notice is hereby given that on Tuesday, May 21, 2019, at 7.00 P.M., the City Council
will hold a Public Hearing for the District, the levy and collection of assessments related thereto
commencing in Fiscal Year 2019-20, or as soon thereafter as feasible, and the detachment of the
Detached Parcels. The Public Hearing will be held in the City Council Chambers, located at
13325 Civic Center Drive, Poway, at the time so fixed. At the Public Hearing, all interested
persons shall be afforded the opportunity to hear and be heard.
Section 11: The property owner protest ballot proceeding conducted for the District
shall constitute the property owners' support for or opposition to the annual levy of assessments
and assessment range formula. Property owners may return their ballot by mail or in person to
the City Clerk not later than the conclusion of the Public Hearing on Tuesday May 21, 2019. After
the close of the Public Hearing, pursuant to Article XIII D, section 4(e) of the California
Constitution, the City shall tabulate the ballots returned to determine if a majority protest exists.
The returned ballots shall be weighted according to the proportional financial obligation of each
affected property. A majority protest exists if, upon the conclusion of the Public Hearing, ballots
submitted in opposition to the assessment exceed the ballots submitted in favor of the
assessment.
Any property owner whose property is proposed to be assessed may submit a ballot to
the City Clerk prior to the conclusion of the Public Hearing, or having previously filed a ballot, may
file a written withdrawal of that ballot. At the Public Hearing, all interested persons shall be
afforded the opportunity to hear and be heard.
Section 12: The City Clerk or her designee is hereby authorized and directed to give
notice of such Public Hearing as provided by law.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California, at a regular meeting this 2nd day of April 2019.
Steve Vaus, Mayor
ATTEST:
Faviola Medina, CMC, City Clerk
17 of 49 April 2, 2019, Item #4.2
Resolution No. 19-
Page 5
STATE OF CALIFORNIA )
SS
COUNTY OF SAN DIEGO )
I, Faviola Medina, City Clerk of the City of Poway, California, do hereby certify under penalty of
perjury that the foregoing Resolution No. 19- was duly adopted by the City Council at a
meeting of said City Council held on the 2nd day of April 2019, and that it was so adopted by
the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
Faviola Medina, City Clerk
City of Poway
18 of 49 April 2, 2019, Item #4.2
Resolution No. 19-
Page 6
RESOLUTION NO. 19-
EXHIBIT A
Assessor Parcels to be Detached from Landscape Maintenance District No. 87-1
317-222-12-00 317-222-23-00 317-222-24-00 317-222-25-00 317- 222-26-00
317-222-27-00 317-223-01-00 317-223-02-00 317-223-03-00 317-223-04-00
317-223-05-00 317-223-07-00 317-223-11-00 317-223-12-00 317-223-13-00
317-223-14-00 317-223-15-00 317-223-18-00 317-223-19-00 317-223-20-00
317-223-21-00 317-223-27-01 317-223-27-02 317-223-28-00 317- 223-30- 00
317-223-31-00 317-223-32-00 317-223-33-00 317-223-37-00 317-223-38-00
317-223-39-00 317-224-01-00 317-224-06- 00 317-224-07-00 317-224-15-00
317-224-16-00 317-224-18-00 317-224-19-00 317-224-20-00 317-224-21-00
317-224-22-00 317-224-23-00 317-224-24-00 317-225-01-00 317-225-04-00
317-225-05-00 317-225-06-00 317-225-07-00 317-225-10-00 317-225-11-00
317-225-12-00 317-225-13-00 317-225-14-00 317-225-15-00 317-225-16-00
317-225-17-00 317-225-18-00 317-270-08-00 317-270-09-01 317-270-09-02
317-270-09-03 317-270-09-04 317-270-09-05 317-270-09-06 317-270-09-07
317-270-09-08 317-270-09-09 317-270-09-10 317-270-09-11 317-270-09-12
317-270-09-13 317-270-09-14 317-270-10-01 317-270-10-02 317-270-10-03
317-270-10-04 317-270-10-05 317-270-10-06 317-270-10-07 317-270-10-08
317-270-10-09 317-270-10-10 317-270-10-11 317-270-10- 12 317-270-10-13
317-270-10-14 317-270-11-00 317-270-12-00 317-270-13-00 317-270-14-00
317-270-15-00 317-270-16-00 317-270-18-00 317-270-19-00 317-270-20-00
317-270-21-00 317-270-22-00 317-270-23- 00 317-270-24-00 317-270-25-00
317-270-31-00 317-270-32-00 317-270-40-00 317-270-41-00 317-270-42-00
317-270-43-00 317-270-44-00 317-270-45-00 317-270-46-00 317- 270-49-00
317-270-50-00 317-270-51-00 317-270-54-00 317-270-55-00 317- 270-56-00
317-270-59-00 317-270-60-00 317-270-61-00 317-270-62-00 317-270-63-00
317-271-02-00 317-271-03-00 317-271-04-00 317-271-09-00 317-271-10-00
317-271-12-00 317-271-13-00 317-271-15-00 317-271-16-00 317-271-18-00
317-271-19-00 317-271-20-00 317-271-21-00 317-271-25-00 317-271-26-00
317-271-27-00 317-271-28-00 317-271-33-00 317-271-34-00 317-271-35-00
317-271-41-00 317-271-42-00 317-271-46-00 317-271-48-00 317-271-49-00
317-271-51-00 317-271-56-00 317-271-57-00 317-271-58-00 317-271-59-00
317-271-62-00 317-271-63-00 317-271-67-00 317-271-68-00 317-271-74-00
317-271-75-00 317-271-77-00 317-271-80-00 317-271-81-00 317-271-82-00
19 of 49 A-1 April 2, 2019, Item #4.2
Resolution No. 19-
Page 7
317-271-83-00 317-271-84-00 317-271-85-00 317-271-86-00 317-271-87-00
317-271-89-00 317-271-91-00 317-271-92-00 317-271-93-00 317-271-94-00
317-271-95-00 317-271-96-00 317-280-21-00 317-280-35-00 317-280-36-00
317-280-37-00 317-280-47-00 317-280-48-00 317-280-56- 00 317-280-57-00
317-280-58-00 317-280-60-00 317-280-63-00 317-280-65-00 317-280-66-00
317-280-68-00 317-280-70-00 317-280-71-00 317-280-72-00.317-280-73- 00
317-280-74-00 317-280-75-00 317-280-76-00 317-280-77-00 317-280-78-00
317-280-79-00 317-280-80-00 317-280-82-00 317-280-83-00 317-280-85-00
317-280-86-00 317-281-08-00 317-281-09-00 317-281-10-00 317-281-11-00
317-281-14-00 317-281-15-00 317-281-16-00 317-281-22-00 317-281-23-00
317-281-24-00 317-281-25-00 317-281-26-00 317-281-27-00 317-281-29- 00
317-810-04-00 317-810-05-00 317-810-09-00 317-810-12-00 317-810-13-00
317-810-14-00 317-810-15-00 317-810-16-00 317-810-17-00 317-810-18-00
317-810-19-00 317-810-23-00 317-810-24-00 317-810-28-00 317-810-29-00
317-810-30-00 317-810-31-00 317-810-32-00 317-810-33-00 317-810-36-00
317-810-37-00 317-810-38-00 320-011-27-00 320-200-46-00 320-200-47- 00
320-200-48-00 320-200-49-00 320-200-50-00 320-220-02-00 320-220-03- 00
320-220-04-00 320- 220-05- 00 320-220-06-00 320-220-07-00 320-220-12-00
320-220-15-00 320-220-16-00 320-220-18-00 320-220-21-00 320-220-22-00
320-220-24-00 320-220-25-00 323-091-08-00 323-091-09- 00 323-091-10-00
323-091-11-00 323-091-12-00 323-092-17-00 323-092-18-00 323- 092-20- 00
323-092-21-00 323-092-22- 00 323-092-23-00 323-092-24-00 323-092-25-00
323-092-26-00 323-092-27-00 323-092-28-00 323-092-29-00 323-092-31-00
323-092-32-00 323-092-33-00 323-092-34-00 323-092-35-00 323-092-37-00
323-092-38-00 323-480-03-00 323-480-04-00 323-480-10-00 323-480-11-00
323-480-12-00 323-480-13-00 323-480-14-00 323-480-16-00 323-480-18-00
323-480-19-00 323-480-20-00 323-480-21-00 323-480-22-00 323-480-23-00
323-481-02-00 323-481-03-00 323-481-10-00 323-481-11-00 323-481-12-00
323-481-13-00 323-481-14-00 323-481-15-00 323-481-16-00 323-481-19-00
323-482-20-00 323-482-22-00 323-482-23-00 323-482-24-00 323-482-25-00
323482-26-00 323-482-29-00 323-482-30- 00 323-500-12-00 323-500-15-00
323-500-20-00 323-500-22-00 323-500-23-00 323-500-25-00 323-500-27-00
323-500-28-00 323-500-29-00 323-501-01-00 323-501-02-00 323-501-03-00
323-501-04-00 323-501-05- 00
A-2
20 of 49 April 2, 2019, Item #4.2
1
0.0„.____
1 1
CITY OF POWAY
Engineer's Report
Formation of
Landscape Maintenance District No. 19-1
Fiscal Year 2019/2020
Intent Meeting: April 2, 2019
Public Hearing: May 21 , 2019
CITY OF POWAY
13325 CIVIC CENTER DRIVE
POWAY, CA 92064
FEBRUARY 2019
PREPARED BY
WILLDAN FINANCIAL SERVICES
WWI LLDAN
Financial Services
21 of 49 ATTACHMENT C April 2, 2019, Item #4.2
ENGINEER'S REPORT AFFIDAVIT
City of Poway
Landscape Maintenance District No. 19-1
District Formation
Fiscal Year 2019/2020
Annual Levy of Assessments
Commencing in Fiscal Year 2019/2020
City of Poway,
County of San Diego, State of California
This Report and the enclosed descriptions, budgets, and diagrams outline the improvements
and assessments being proposed for the consideration of the Poway City Council regarding the
formation of Landscape Maintenance District No. 19-1 for Fiscal Year 2019/2020. Said District
includes each lot, parcel, and subdivision of land identified as receiving a special benefit from
the improvements to be funded by the District annual assessments as identified on the San
Diego County Assessor's Parcel Maps at the time this Report was prepared. Reference is
hereby made to the San Diego County Assessor's Parcel Maps for a detailed description of the
lines and dimensions of each parcel within Landscape Maintenance District No. 19-1, including
all subsequent subdivisions, lot-line adjustments, or parcel changes therein. The undersigned
respectfully submits the enclosed Report as directed by the City Council.
Dated this day of 2019.
Willdan Financial Services
Assessment Engineer
On Behalf of the City of Poway
By:
Jim McGuire
Principal Consultant
By:
Richard Kopecky
R.C.E. # 16742
22 of 49 Agril'2, 2019, Item #4.2
Table of Contents
Introduction 1
Ballot Proceedings 2
Report Content 3
Part I - Plans and Specifications 6
Description of the District 6
Part II - Method of Apportionment 10
Legislative Authority and Provisions 10
Benefit Analysis 11
Assessment Methodology 14
Part Ill - Estimate of Costs 18
Calculation of Assessments 18
District Budgets and Assessments 19
Assessment Range Formula 21
Part IV - District Diagram 23
Part V - Assessment Roll 25
23 of 49 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Introduction
Pursuant to the provisions of the Landscape and Lighting Act of 1972, being Part 2 of Division
15 of the California Streets and Highways Code, commencing with Section 22500 (the "1972
Act"), and in compliance with the substantive and procedural requirements of Article XIIID,
section 4 of the California State Constitution (the "California Constitution") and the Proposition
218 Omnibus Implementation Act (the "Omnibus Act"), being Government Code section 53750
et seq., the City Council of the City of Poway, County of San Diego, State of California (the
City"), proposes to reorganize the City's previously established Landscape Maintenance District
No. 87-1 ("LMD No. 87-1) by detaching certain territory from LMD No. 87-1 and forming a new
landscape maintenance district that includes the detached territory and new parcels. These
change proceedings are being made to better address the estimated special benefit
improvement costs and proportional special benefits received by each property associated with
the various improvements being provided in the area.
As part of this district reorganization, the existing residential development areas within LMD No.
87-1 (residential territories) are proposed to remain part of LMD No. 87-1 for fiscal year
2019/2020. This residential territory includes the parcels comprising the Valencia Creek
Condominiums located west of Pomerado Road and north of Scripps Poway Parkway; the
single-family residential development area identified as Map 13542 - Poway TCT No. 88-04R
and Map 13364 - Poway TCT No. 88-04R located west of Pomerado Road and south of Scripps
Poway Parkway; and various residential properties located between Pomerado Road and Creek
Road north of Beeler Canyon Road. The parcels within these residential territories will remain
part of LMD No. 87-1 and are not being balloted for new or increased annual assessments as
part of these proceedings. Therefore, the improvements, expenses and assessments
associated with these residential parcels are not specifically addressed in this engineer's report.
The new special benefit landscape maintenance assessment district is proposed to be
designated as:
Landscape Maintenance District No. 19-1
the "District"), to provide and maintain various local landscaping improvements within the
boundaries of the District that provide special benefits to properties therein.
To adequately provide and fund the landscaping improvements, appurtenant facilities and
related expenses within the District, the City Council has determined that it is appropriate and in
the public's best interest to form Landscape Maintenance District No. 19-1, and to levy annual
assessments on the County tax rolls for the benefit of properties therein commencing in Fiscal
Year 2019/2020 to fund the estimated special benefit improvement costs that are considered
necessary to maintain and service those improvements. The detailed plans and specifications
for the landscaping improvements to be provided and funded in whole or in part by the District
assessments are on file in the Office of Public Works of the City of Poway and by reference
these plans and specifications are made part of this Report. The improvements to be provided
by the District and the assessments described herein are made pursuant to the 1972 Act, the
provisions of the California Constitution, and the Omnibus Act; and the District shall incorporate
into the District each parcel that will receive special benefits from those improvements and the
maintenance and servicing thereof.
This Engineer's Report (the "Report") has been prepared pursuant to Chapter 1, Article 4 of the
1972 Act and the California Constitution, and presented to the City Council for its consideration
and approval of the improvements to be provided within the District and the levy and collection
of the assessments related thereto to fund the special benefit costs and expenses required to
service and maintain the designated improvements within the District commencing in Fiscal
WWILLDAN
24 of 49 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Year 2019/2020. If any section, subsection, sentence, clause, phrase, or portion of this Report
is, for any reason, held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining provisions of
the Report and each section, subsection, subdivision, sentence, clause, phrase, or portion
thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses,
phrases, or portions might subsequently be declared invalid or unconstitutional.
This Report outlines the District structure, the improvements, and the proposed assessments to
be levied in connection with the special benefits the properties within the District will receive
from the maintenance and servicing of the District improvements. The annual assessments to
be levied on properties within the District will provide a funding source for the continued
operation and maintenance of the landscaping improvements and appurtenant facilities within
the District. The net annual cost to provide the improvements is allocated to the benefiting
properties using a weighted method of apportionment (refer to Assessment Methodology in Part
II, Method of Apportionment) that calculates the proportional special benefit and assessment for
each parcel as compared to other properties that benefit from the District improvements and
services.
The estimated cost of the improvements, maintenance, and servicing, and the proposed annual
assessments budgeted and assessed against properties each fiscal year may include, but are
not limited to, the estimated expenditures for regular annual maintenance and repair of the
landscaping and related facilities; incidental expenditures related to the operation and
administration of the District; the collection of funds for operational reserves; the collection of
funds to support periodic maintenance projects, rehabilitation projects and/or other capital
improvement projects; deficits or surpluses from prior fiscal years; and revenues from other
sources as authorized by the 1972 Act. Each parcel is to be assessed proportionately for only
those improvements, services and expenses for which the parcel will receive special benefits.
After formation of this District, in each subsequent fiscal year, the City shall establish the
District's assessments based on an estimate of the costs to maintain, operate and service the
improvements, including funding needed for capital improvement projects for that fiscal year and
available revenues including fund balances, general benefit contributions, any additional City
contributions, and the assessment limits established herein.
The word "parcel," for the purposes of this Report, refers to an individual property assigned its
own Assessor's Parcel Number ("APN") by the San Diego County Assessor's Office. The San
Diego County Auditor/Controller uses Assessor's Parcel Numbers and specific Fund Numbers
to identify properties to be assessed on the tax roll for the District assessments.
Ballot Proceedings
Pursuant to the provisions of Article XIIID, section 4 of the California Constitution and the
Omnibus Act, the City shall conduct a property owner protest ballot proceeding ("Ballot
Proceeding") for the proposed levy of new assessments as described in this Report. In
conjunction with this Ballot Proceeding, the City Council will conduct a noticed public hearing to
consider public testimony, comments, and written protests regarding the formation of the District
and the establishment of the proposed assessments. Upon conclusion of the public hearing,
property owner protest ballots received will be opened and tabulated to determine whether a
majority protest exists as defined in Article XIIID of the California Constitution and the Omnibus
Act.
A majority protest exists if, upon the conclusion of the hearing, ballots submitted in opposition
to the assessment exceed the ballots submitted in favor of the assessment. In tabulating the
ballots, the ballots shall be weighted according to the proportional financial obligation of the
affected property."
WILLDAN
25 of 4aa ai Services April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/ 2020
After completion of the ballot tabulation, the City Council will confirm the results of the balloting.
If a majority protest exists for the proposed assessments and the assessment range formula
presented and described herein, further proceedings to form the District and implement the new
assessments shall be abandoned at this time. However, the City Council may continue to levy
and collect annual assessments on these parcels to support the landscaping improvements
currently provided and funded through Landscape Maintenance District No. 87-1 at the
assessment rates and method of apportionment previously approved and adopted by the City
Council for that District.
If tabulation of the ballots indicate that a majority protest does not exist for the proposed
assessments and the assessment range formula presented and described herein, the City
Council may adopt this Report (as submitted or amended); approve the District Diagram
contained herein; and by resolution order the formation of the District; direct the improvements
to be made; and confirm and approve the levy and collection of the assessments as outlined in
this Report. Upon the successful formation of the District, the City Council may in the same
resolution or in a sperate resolution, detach the territory and improvements within the District
from Landscape Maintenance District No. 87-1, and will discontinue the levy of LMD No. 87-1
assessments for such parcels beginning in Fiscal Year 2019/2020.
The assessment rates and method of apportionment described in this Report, as approved or
modified by the City Council, establishes the Fiscal Year 2019/2020 maximum assessment rate
for the District which includes an annual inflationary adjustment (referred to as an Assessment
Range Formula), and the assessments to be submitted to the San Diego County
Auditor/Controller for inclusion on the Fiscal Year 2019/2020 property tax roll.
Each subsequent fiscal year, an annual engineer's report for the District shall be prepared and
presented to the City Council to address any proposed changes to the District, improvements,
budget, and assessments for that fiscal year. The City Council shall annually hold a noticed
public hearing regarding these matters prior to approving and ordering the levy of assessments
for the upcoming fiscal year. The assessments as approved and ordered will be submitted to the
San Diego County Auditor/Controller for inclusion on the property tax roll for each affected
parcel for that fiscal year. Such assessments shall not exceed the annually adjusted maximum
assessments as calculated and authorized herein unless the proposed new or increased
assessments are approved by the property owners in a ballot protest proceeding.
Report Content
This Report has been prepared in connection with the formation of Landscape Maintenance
District No. 19-1 and the levy of assessments commencing in Fiscal Year 2019/2020, pursuant
to a resolution of the City Council and consists of five (5) parts:
Part I - Plans and Specifications:
This section of the Report contains an overall description of the District, and the general nature,
location, and extent of the improvements for which parcels will be assessed. The assessments
as outlined in this Report are based on the local landscaping improvements and appurtenant
facilities within the District that provide special benefits to the properties therein, including
incidental expenses authorized pursuant to the 1972 Act. In conjunction with the descriptions of
the improvements, a visual depiction of the landscape improvement areas is provided on the
District Diagram contained in Part IV of this Report. More detailed information regarding the
specific plans and specifications associated with the District improvements are on file in the
Public Works Department and by reference are made part of this Report.
W WILLDAN26ofFinancialServices April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Part II - Method of Apportionment
This section provides a discussion of the general and special benefits associated with the
improvements to be provided within the District (Benefit Analysis), which includes a discussion
of the proportional costs of the special benefits and a separation of costs considered to be of
general benefit and therefore not assessed. This section of the Report also outlines the method
of calculating each property's proportional special benefit necessary to calculate the annual
assessments.
Part III - Estimate of Costs
This section of the Report contains an estimate of the total annual costs to install, operate,
maintain, and service the local landscaping improvements and appurtenant facilities within the
District. The estimated annual expenses (budget) includes an estimate of the maintenance
costs and incidental expenses (as defined in the 1972 Act) including, but not limited to: labor,
materials, utilities, equipment, and administration expenses as well as the collection of other
appropriate funding authorized by the 1972 Act and deemed necessary to fully support the
improvements. Those improvements and/or costs determined to be of general benefit shall be
funded by a City contribution and are excluded from the amount to be assessed as special
benefit. The resulting proposed maximum assessment rate per equivalent benefit unit (the
Maximum Assessment Rate Per EBU") identified in the budget establishes the maximum
assessment rate as of Fiscal Year 2019/2020 and this maximum assessment rate shall be
adjusted annually by an inflationary adjustment (Assessment Range Formula) , which is also
described in this section of the Report. The maximum assessment amount to be balloted for
each parcel is calculated based on the initial maximum assessment rate and the Assessment
Methodology described in "Part II - Method of Apportionment" of this Report.
While not shown as a budgeted expenditure at this time, if the District is formed and the
assessments are approved, the City Council, at its discretion, may in the future provide a
temporary advance (loan) to the District to expedite various capital improvement projects within
the District (i.e.,.repair and rehabilitation of the improvements). Such loans shall be limited to
funding that complies with the provisions of California State law and shall be paid back to the
City through the annual assessments and available funds collected for CIP and Rehabilitation
Funding and/or Operational Reserves. Ultimately, City staff shall make the determination of
which improvements, and the extent of the services and activities that shall be provided based
on available revenues.
Part IV - District Diagram
This section of the Report contains a diagram showing the boundaries of the proposed District
for Fiscal Year 2019/2020 which incorporates each of the parcels that receives special benefits
from the District improvements. This diagram also provides a visual depiction of the location of
the improvements to be maintained. The lines and dimensions of each lot, parcel, and
subdivision of land contained in this diagram are inclusive of all parcels listed in "Part V -
Assessment Roll" of this Report and the corresponding County Assessors Parcel Maps for said
parcels as they existed at the time this Report was prepared and shall include all subsequent
subdivisions, lot-line adjustments, or parcel changes therein. Reference is hereby made to the
San Diego County Assessor's maps for a detailed description of the lines and dimensions of
each lot and parcel of land within the District.
W'WI LLDAN
27 of 49 April April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Part V - Assessment Roll
A listing of all Assessor Parcel Numbers of the properties within the District and each parcel's
corresponding Fiscal Year 2019/2020 maximum assessment amount ("Balloted Maximum
Assessment") and assessment amount proposed to be levied and collected for Fiscal Year
2019/2020 ("Assessment FY 2019/2020"). The proposed assessment amounts balloted and to
be levied and collected for Fiscal Year 2019/2020 for each parcel is based on the parcel's
calculated proportional special benefit as outlined in the Method of Apportionment (Part II of this
Report) and the annual assessment rate established by the budget provided in the Estimate of
Costs (Part Ill of this Report). Due to the number of parcels within the District, the Assessment
Roll shall be filed electronically with the City Clerk rather than displayed in this Report and by
reference the listing of the Assessor's Parcel Numbers and the corresponding assessment
amounts contained in that electronic file are made part of this Report.
WWILLDAN
28 of 49a"``e'
April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Part I - Plans and Specifications
Description of the District
The District is within the City of Poway in the southern region of the City, comprised of the non-
residential and vacant properties generally located north of Beeler Canyon Road and the City
limits, east of Old Pomerado Road and the City limits, west of Sycamore Canyon Road. The
territory within the District consists of the lots or parcels of land shown on the Assessment
Diagram contained herein in "Part IV - District Diagram" of this Report which is inclusive of all
parcels listed in "Part V - Assessment Roll" of this Report and the corresponding County
Assessor's Parcel Maps for said parcels as they existed at the time this Report was prepared.
The parcels within the District include all or a portion of the parcels identified on the following
San Diego County Assessor's Parcel Maps:
Book 317 Pages 22, 27, 28, and 81;
Book 320 Pages 01, 20, and 22; and
Book 323 Pages 09, 48 and 50
Description of the Improvements
As authorized by the 1972 Act, the proposed improvements to be provided by the District
incorporates local landscaping improvements and appurtenant facilities that are maintained and
serviced for the benefit of real property within the District. The various improvements to be
maintained by the District have been installed in connection with the development of properties
for the benefit of those properties, and/or proportionately shared with nearby adjacent
developments, or were otherwise considered necessary or required for the development of
properties within the District to their full and best use and/or the adjacent developments that
proportionately benefit and share those improvements. The work to be performed within the
District may include, but is not limited to (as applicable), the personnel; materials; equipment;
electricity; water; contract services; maintenance, repair and rehabilitation of the improvements;
and incidental expenses required to operate the District and provide the improvements and
services. The annual assessments to be levied on properties within the District provide a source
of funding to support the continued operation and maintenance of these improvements that
provide a particular and distinct benefit (special benefit) to those properties. Each parcel shall
be assessed proportionately for only those improvements, services, and expenses for which the
parcel receives special benefits.
WWILLDAN
29 of 495 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
The landscape improvements to be funded by the District assessments may include, but are not
limited to: turf; ground cover; shrubs and plants; areas of natural vegetation; trees; irrigation
systems; specific masonry walls, including sound walls and retaining walls; monuments;
hardscapes; and other related appurtenant facilities within the District that have been dedicated
to the City for maintenance, including, but are not limited to:
median island landscaping and hardscape improvements within the District;
designated streetscape side-panel landscaping adjacent to the streets and properties within
the District, including parkways, slopes and entryways; and
designated non-street landscaping and/or vegetation management areas, including, but not
limited to, open space areas, greenbelts, and landscaping located adjacent to the properties
within the District.
The improvements within this District provide direct advantages to the parcels in the District
i.e., special benefits) that affect the assessed parcels in a way that is particular and distinct
from their effect on other parcels and that real property in general and the public at large do not
share. The parcels are proportionately assessed, in whole or in part, for the special benefits
they receive from the improvements. The improvement plans and specifications for the District
are on file in the Office of Public Works of the City of Poway and by reference these
improvement plans, and specifications are made part of this Report. The parcels within District
are proportionately assessed, in whole or in part, for the special benefits they receive from the
overall landscape improvements within the District, including, but not limited to, landscape areas
on and around Pomerado Road, Community Road, Stowe Drive, Scripps Poway Parkway,
Treadwell Drive, and Creek Road. The landscape improvements are dispersed throughout the
District in immediate proximity to each of the assessed parcels and are generally summarized
by the following:
34,462 square feet of streetscape landscaping located on the east side of Pomerado Road
from Stowe Drive to approximately 730 feet north of Stowe Drive.
7,024 square feet of landscaped median and 1,959 square feet of hardscaped median on
Pomerado Road north of Stowe Drive. These improvements provide a shared benefit to
properties on both sides of Pomerado Road and are therefore equally funded by the District
and another revenue sources (General Fund and/or LMD No. 87-1).
120,224 square feet of streetscape landscaping located on the east side of Pomerado Road
between Stowe Drive and Scripps Poway Parkway.
30,168 square feet of landscaped median and 2,853 square feet of hardscaped median
located on Pomerado Road between Stowe Drive and Scripps Poway Parkway. These
median improvements provide a shared benefit to properties on the west side of Pomerado
Road and are therefore equally funded by the District and other revenue sources (General
Fund and/or LMD No. 87-1).
7,932 square feet of streetscape landscaping located on the south side of Scripps Poway
Parkway between the western City limit and Pomerado Road (that portion adjacent to the
District parcels). The remaining 199,333 square feet of landscaping on the south side of
Scripps Poway Parkway between the western City limit and Pomerado Road is not part of
LMD No. 19-1 and not assessed).
11,362 square feet of landscaped median and 1,366 square feet of hardscaped median
located on Scripps Poway Parkway between the western City limit and Pomerado Road.
These median improvements provide a shared benefit to properties on both sides of
Pomerado Road and are therefore equally funded by the District and other revenue sources
General Fund and/or LMD No. 87-1).
WW I LLDANi, Financial Services
30 of 49 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
39,687 square feet of streetscape landscaping located on the south side of Treadwell Drive
between Pomerado Road and 828 feet west of Pomerado Road. These landscape
improvements provide a shared benefit to properties in the District and the residential
development south of Treadwell Drive (LMD No. 87-1) and are therefore equally funded by
the District and LMD No. 87-1).
5,704 square feet of landscaped median and 1,657 square feet of hardscaped median area
located on Pomerado Road between Treadwell Drive and the southern City limits. These
median improvements provide a shared benefit to properties on both sides of Pomerado
Road and are therefore equally funded by the District and other revenue sources (General
Fund and/or LMD No. 87-1).
48,785 square feet of streetscape located on the west and east sides of Pomerado Road
between Scripps Poway Parkway and Treadwell Drive.
3,675 square feet of landscaped median and 1,971 square feet of hardscaped median on
Pomerado Road between Scripps Poway Parkway and Treadwell Drive.
16,528 square feet of streetscape landscaping located on the north side of Creek Road
between Pomerado Road and 345 feet east of Pomerado Road.
954,945 square feet of streetscape landscaping located on the north and south side of
Scripps Poway Parkway between Pomerado Road and Kirkham Road.
D 52,151 square feet of landscaped median and 1,654 square feet of hardscaped median on
Scripps Poway Parkway between Pomerado Road and Kirkham Road.
133,059 square feet of streetscape landscaping located on the north and south sides of
Scripps Poway Parkway between Kirkham Road and Community Road.
11,630 square feet of landscaped median and 4,835 square feet of hardscaped median on
Scripps Poway Parkway between Kirkham Road and Community Road.
24,247 square feet of streetscape landscaping located on the east and west sides of
Community Road between Scripps Poway Parkway and Gregg Street.
288,761 streetscape landscaping located on the north and south sides of Scripps Poway
Parkway between Community Road and Parkway Centre Drive.
31,701 square feet of landscaped median and 25, 834 square feet of hardscaped median on
Scripps Poway Parkway between Community Road and Parkway Centre Drive.
159,212 square feet of streetscape located on the north and south sides of Scripps Poway
Parkway between Parkway Centre Drive and Stowe Drive.
23,355 square feet of landscaped median and 19,951 square feet of hardscaped median on
Scripps Poway Parkway between Parkway Centre Drive and Stowe Drive.
18,394 square feet of streetscape landscaping located on the west side of Stowe Drive
between Scripps Poway Parkway and Kirkham Road.
138,966 square feet of streetscape landscaping located on the north and south sides of
Scripps Poway Parkway between Stowe Drive and Danielson Street.
31,146 square feet of landscaped median and 26,746 square feet of hardscaped median on
Scripps Poway Parkway between Stowe Drive and Danielson Street.
36,176 square feet of streetscape landscaping located on the north and south sides of
Scripps Poway Parkway between Danielson Street and 2,000 feet east of Danielson Street.
31,146 square feet of landscaped median and 26,746 square feet of hardscaped median on
Scripps Poway Parkway between Danielson Street and 2,000 feet east of Danielson Street.
WWILLDAN
31 of Financial9 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
8,248 square feet of streetscape landscaping located on the west side of Stowe Drive
between Danielson Street and Scripps Poway Parkway
29,242 square feet of streetscape landscaping located on the south side of Stowe Drive
between Crosthwaite Circle East and Danielson Street.
15,662 square feet of streetscape landscaping located on the north and south sides of
Stowe Drive between Parkway Centre Drive and Crosthwaite Circle East.
87,089 square feet of streetscape located on the north and south sides of Stowe Drive
between Crosthwaite Circle West and Parkway Centre Drive.
121,596 square feet of streetscape landscaping located on the south side of Stowe Drive
between Mclvers Court and Crosthwaite Circle West.
77,176 square feet of streetscape landscaping located on the north and south sides of
Stowe Drive between Community Road and Mclvers Court.
2,362 square feet of hardscaped median on Community Road between Danielson Street
and Scripps Poway Parkway.
80,993 square feet of streetscape landscaping located on the east and west sides of
Community Road between Stowe Drive and Danielson Street.
3,925 square feet of landscaped median and 2,270 square feet of hardscaped median on
Community Road between Stowe Drive and Danielson Street.
78,347 square feet of streetscape landscaping located on the north and south sides of
Stowe Drive between Brookprinter Place and Community Road.
6,518 square feet of streetscape landscaping located on the north side of Stowe Drive
between Kirkham Road and Brookprinter Place.
588,134 square feet of streetscape landscaping located on the east and west sides of
Community Road between Metate Lane and Stowe Drive.
25,082 square feet of landscaped median and 1,365 square feet of hardscaped median on
Community Road between Metate Lane and Stowe Drive.
186,055 square feet of streetscape landscaping located on the east side of Community
Road from 900 feet north of Metate Lane to Metate Lane.
29,161 square feet of streetscape landscaping located on the south side of Metate Lane
from 670 feet west of Community Road to Community Road.
648,074 square feet of streetscape landscaping located on the north and south sides of
Stowe Drive between Pomerado Road and lavelli Way.
WWI
32 of 495 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Part II - Method of Apportionment
Legislative Authority and Provisions
1972 Act
The 1972 Act permits the establishment of assessment districts by agencies for the purpose of
providing certain public improvements, including the acquisition, construction, installation and
servicing of landscaping and lighting improvements and related facilities. The 1972 Act requires
that the cost of these improvements be levied according to benefit rather than assessed value:
Section 22573 defines the net amount to be assessed as follows:
The net amount to be assessed upon lands within an assessment district may be apportioned
by any formula or method which fairly distributes the net amount among all assessable lots or
parcels in proportion to the estimated benefits to be received by each such lot or parcel from the
improvements."
Section 22531 defines "maintain" or"maintenance" as follows:
Maintain" or "maintenance" means the furnishing of services and materials for the ordinary and
usual maintenance, operation, and servicing of any improvement, including: (a) Repair, removal, or
replacement of all or any part of any improvement. (b) Providing for the life, growth, health, and
beauty of landscaping, including cultivation, irrigation, trimming, spraying, fertilizing, or treating for
disease or injury. (c) The removal of trimmings, rubbish, debris, and other solid waste. (d) The
cleaning, sandblasting, and painting of walls and other improvements to remove or cover graffiti.
Section 22538 defines "service" or"servicing"as follows:
Service" or "servicing" means the furnishing of: (a) Electric current or energy, gas, or other
illuminating agent for any public lighting facilities or for the lighting or operation of any other
improvements. (b) Water for the irrigation of any landscaping, the operation of any fountains, or
the maintenance of any other improvements.
The formulas used for calculating assessments as established herein reflect the composition of
parcels within the District and the improvements and activities to be provided, and have been
designed to fairly apportion the cost of providing those improvements based on a determination
of the proportional special benefits to each parcel, consistent with the requirements of the 1972
Act and the provisions of Article XIII D of the California Constitution.
California Constitution
The costs to operate and maintain the District improvements are identified and allocated to
properties within the District based on the special benefits conferred. The improvements
provided and for which properties are to be assessed are identified as local landscaping
improvements and related amenities that were installed in connection with the development of
the properties and/or would otherwise be required for the development of properties within the
District. The District assessments and method of apportionment are based on the premise that
these improvements would otherwise not have been installed and maintained by the City. The
types of improvements and level of maintenance of the improvements are greater than what the
City otherwise installs, maintains, and funds elsewhere in the City.
Article XIII D Section 2( d) defines District as follows:
District means an area determined by an agency to contain all parcels which will receive a
special benefit from a proposed public improvement or property-related service";
WILLDAN
mom Financial Services
33 of 4April 2, 2019, Item #4.2
Landscape Maintenance District Na 19-1
Engineer's Report
Fiscal Year 2019/2020
Article XIII D Section 2(i) defines Special Benefit as follows:
Special benefit" means a particular and distinct benefit over and above general benefits
conferred on real properly located in the district or to the public at large. General enhancement
of property value does not constitute "special benefit."
Article XIII D Section 4(a) defines proportional special benefit assessments as follows:
An agency which proposes to levy an assessment shall identify all parcels which will have a
special benefit conferred upon them and upon which an assessment will be imposed. The
proportionate special benefit derived by each identified parcel shall be determined in
relationship to the entirety of the capital cost of a public improvement, the maintenance and
operation expenses of a public improvement, or the cost of the property related service being
provided. No assessment shall be imposed on any parcel which exceeds the reasonable cost of
the proportional special benefit conferred on that parcel."
Benefit Analysis
The improvements provided by this District and for which properties will be assessed have been
identified as necessary, desired, and/or required for the orderly development of the properties
within the District to their full potential, consistent with the development plans and applicable
portions of the City's General Plan.
Special Benefits
The ongoing maintenance of landscaped areas within the District will provide aesthetic benefits
to the properties within the District and are intended to provide a more pleasant environment to
walk, drive, and work. The primary function of these improvements and related amenities is to
serve as an aesthetically pleasing enhancement and green space for the benefit of the
immediately surrounding commercial properties and developments for which the improvements
were constructed and installed, and/or were facilitated by the development or potential
development of properties within the District. These improvements are an integral part of the
physical environment associated with the parcels in the District and while some of these
improvements may in part be visible to properties outside the District, collectively, if these
improvements are not properly maintained, it is the parcels within the District that would be
aesthetically burdened. Additionally, these landscape improvements provide visually pleasing
open space areas and green spaces that serve as an extension of the physical attributes of the
parcels assessed, such as privately maintained landscape areas, and to some extent may also
provide a greater opportunity for recreation as well as serving as a physical buffer and/or sound
reduction buffer between the roadways and the properties in the District. Thus, the maintenance
of these landscaped improvements provides advantages and benefits to the assessed
properties that affect the assessed parcels in a way that is particular and distinct from their
effect on other parcels and that real property in general and the public at large do not share.
Collectively these landscaping improvements and related amenities which are proposed to be
funded by the special benefit assessments, enhance the overall use, presentation, enjoyment,
recreational access, and marketability of the properties, and ensure the long-term cost-
efficiency of services that are obtained through the City provided maintenance (economy of
scale).
L WILaLDANServices
34 of 49 April 2, 2019, Item #4.2
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Engineer's Report
Fiscal Year 2019/2020
General Benefit
Calculated(Direct) General Benefit
In reviewing the location and extent of the specific landscaped areas and improvements to be
funded by District assessments and the proximity and relationship to properties to be assessed,
it is evident these improvements have been installed as part of the development of properties
within the District or are improvements that would otherwise be shared by and/or required for
development of those properties. Although the District improvements are located on public
streets or public areas that are typically visible and/or accessible to the general public, it is
evident that the ongoing maintenance of these improvements are only necessary for the
appearance and advantage of the properties within the District that are directly associated with
these improvements (particularly the level of maintenance and servicing) are not required nor
associated with any properties outside the District. It is also evident that: (1) the maintenance of
these improvements and the level of maintenance provided, has a direct and particular
advantage (i.e., special benefit) only to those properties in close proximity to the improvements,
including those developments and properties that are directly accessed from the streets where
the improvements are located; and (2) such maintenance beyond that which is required to
ensure the safety and protection of the general public and property in general, limits any indirect
or incidental benefit that the public at large or properties outside the District receive from the
improvements.
In the absence of a special funding district, these types of improvements would not have been
installed by the City and the City's maintenance of these improvements would, for the most part,
be limited to tree management services necessary to ensure public safety and protection of
property, weed abatement, rodent control, and erosion control services for the various
landscape areas that are provided elsewhere in the City. This basic or baseline level of service
would typically provide for periodic servicing of these areas on an as-needed basis. This
baseline level of service, which is provided elsewhere in the City, would provide for public safety
and essential property protection to avoid negative impacts on adjacent roadways and vehicles
traveling on those roadways and potential property damage. However, this baseline level of
service results in a far less visually pleasing environment than is created with the enhanced
levels of services associated with the regular landscape maintenance that can be provided
through the District assessments.
On average, the cost to provide this baseline level of service for the District's streetscape
landscape areas is estimated to be approximately $1,120 per acre (approximately $0.0257 per
square foot) and approximately $670 per acre (approximately $0.0154 per square foot) for non-
streetscape landscape areas, including a five percent (5%) cost factor for City overhead and
administration.
Indirect(Incidental) General Benefits
In addition to the general benefit identified above, it is recognized that there are indirect or
incidental general benefits to properties within the District as well as the general public that are
associated with regular landscape maintenance services, including:
Minimization of dust and debris; and
Decreased potential water runoff from both properties and the landscaped areas.
Although these types of benefit's might best be characterized as indirect consequences of the
special benefits of the landscape maintenance provided to assessed parcels, for the purposes
of calculating proportional benefits, we assume these types of benefits to be general benefits. It
is apparent that trees, shrubs, plants, and other vegetation and groundcover reduce dust,
debris, and potential water runoff that might otherwise occur if such landscape improvements
WILLDAN
35 of Financial Services April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
did not exist. However, it is also recognized that with the regular maintenance of the landscape
improvements, and the effort and cost to monitor and address these issues, are reduced to
isolated areas and/or less frequent servicing, and these activities, generally represent less than
two percent (2%) of the overall landscape maintenance costs. While conservatively we estimate
that the costs associated with these indirect and incidental benefits typically are less than two
percent (2%) of the annual maintenance expenditures for the landscaping improvements, for
budgeting purposes and establishment of the annual assessments, four percent (4%) the
budgeted maintenance expenditures for the landscaping will be deducted from the annual
expenses as a general benefit expense.
Likewise, it is recognized that the arterial streets within the District are routinely traveled by the
general public and other property owners within the City. While the landscape improvements
along these arterial streets do not provide a special benefit to properties outside the District,
these particular improvements inherently reflect the overall aesthetic appearance of that region
of the City and the City as a whole and therefore, to some extent provide some measure of
indirect general benefit to other properties in the City and the public at large. It is estimated that
the overall arterial landscape improvements in this District (located on Scripps Poway Parkway,
Community Road, and Pomerado Road) represent approximately twenty percent (20%) of the
overall landscaping maintained by the City on its arterial streets and main thoroughfares. While
much of the traffic on these arterials and main thoroughfares within the District, including Stowe
Drive, tend to be regional in nature, largely serving the properties in the immediate area that are
directly accessed by those streets, it is also recognized that Scripps Poway Parkway,
Community Road, and Pomerado Road each extend beyond the District boundaries to areas
outside the City as well as other regions of the City. Travelers to these other areas and
properties will typically utilizing multiple segments of the City's arterial streets with landscaping
improvements which may be funded by various revenue sources including other districts.
Likewise, the owners, business, and customers associated with the parcels within this District
also travel those arterial streets outside the District which have landscaping funded by other
sources.
In reviewing available traffic data posted by the San Diego Association of Governments
SANDAG"), it is estimated that Scripps Poway Parkway, Community Road, Pomerado Road
and Stowe Drive within the District boundaries account for approximately thirty-eight percent
38%) of the total Average Daily Vehicular Trips (ADT) associated with the City's arterial street
segments, including, Espola Road, Camino Del Norte/Twin Peaks, Community Road, Ted
Williams Parkway, Pomerado Road, Scripps Poway Parkway, and Stowe Drive, and also
account for only about 23% of the total ADT when the street segments between the City and
Interstate 15 (San Diego Streets) are included in the counts. Further evaluation of the SANDAG
traffic data indicates that Scripps Poway Parkway and Pomerado Road are two of the highest
traveled arterial streets in the City, and together within the boundaries of the District these two
streets, represent approximately twenty-seven percent (27%) of the total City arterial ADT count
Scripps Poway Parkway - 21% and Pomerado Road — 6%). However, the data also indicates
that only 25% of the total ADT on Pomerado Road is within the District and the ADT counts
along the various segments are fairly consistent with the full length of Pomerado Road. This
consistency in the ADT counts suggest that much of the vehicular traffic on Pomerado Road is
local property generated rather than pass-through traffic. Similarly, on Scripps Poway Parkway,
the ADT count east of Community Road to the City limits diminishes dramatically from the ADT
count west of Community Road to Pomerado Road (a 42% reduction), and the ADT count east
of Community Road represents approximately twenty-three percent (23%) of the ADT on
Scripps Poway Parkway and thirteen percent (13%) of the total ADT within the District.
WWILLDAN
36 of 9
Financial
April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Based on the preceding facts and observations, we have determined that approximately thirteen
percent (13%) of the cost to maintain the arterial landscape improvements within the District
would be considered indirect and incidental benefit (i.e., general benefit) costs and not
assessed to properties in the District. This percentage is based on the combined consideration
of the area being maintained and the overall traffic volume, plus pass-through traffic:
Approximately twenty percent (20%) of the overall landscaping maintained by the City on its
arterial streets and main thoroughfares is within the District and the arterial streets in the
District represent approximately thirty-eight percent (38%) of the City's total ADT on its
arterial street segments. (20% x 38% = 7. 6% of the proportional landscape area and traffic
volume).
Approximately twenty-one percent (21%) of the overall ADT identified for the City's arterial
street segments are associated with Scripps Poway Parkway which passes through the City
limits on both the east and west sides of the City and it is estimated that twenty-three
percent (23%) of those trips are attributable to pass-through traffic. (21% x 23 % = 4.83%
through traffic).
The combination of the ratio of maintained area to traffic volume and the ratio of through-traffic
to overall traffic volume, (7.60% + 4.83% = 12.43%) provides a reasonable estimate of the
indirect and incidental benefit (i.e., general benefit) associated with the arterial landscape
improvements within the District and are not assessed.
Therefore, in addition to the four percent indirect or incidental general benefit costs identified
previously, the City will contribute an additional thirteen percent (13%) of the annual
maintenance expenditures associated with the arterial landscape improvements.
The quantified baseline general benefit costs and the indirect/incidental general benefit costs
identified above shall be excluded (Le., separated) from the special benefit assessment funding
and not assessed to the parcels within the District. The total calculated general benefit cost for
the landscaping improvements is approximately $143,235 based on the current District
improvements. As with many maintenance costs, General Benefit Costs may be impacted by
inflation in subsequent fiscal years, and the General Benefit Costs contributions may be adjusted
for inflation accordingly.
Assessment Methodology
Upon the successful formation of this District, the City proposes to annually levy and collect
special benefit assessments commencing in Fiscal Year 2019/2020 to fund the operation,
maintenance and servicing of the improvements that provide special benefits to parcels within
the District. The estimated annual cost to operate, maintain, and service the District
improvements for Fiscal Year 2019/2020 are identified in the budget section of this Report (Part
Ill of this Report).
To calculate and identify the proportional special benefits received by each parcel and ultimately
each parcel's proportionate share of the improvement costs, it is necessary to consider not only
the improvements and services to be provided, but the relationship each parcel has to those
improvements as compared to other parcels in the District
Article XIIID Section 4( a) reads in part:
The proportionate special benefit derived by each identified parcel shall be determined in
relationship to the entirety of the capital cost of a public improvement or the maintenance and
operation expenses of a public improvement or for the cost of the property related service being
provided. No assessment shall be imposed on any parcel which exceeds the reasonable cost of
the proportional special benefit conferred on that parcel."
WILLDAN
37of 49 M°
April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Landscaping improvements like most public improvements, provide varying degrees of benefit
whether they be general or special) based largely on the nature and extent of such
improvements, and the location of the improvements in relationship to properties associated
with those improvements. To establish the proportional special benefit and ultimately the
assessment obligation for each parcel, these factors need to be addressed and formulated in
the method of apportionment by the specific use of the property and characteristics that reflect
each parcel's proportional special benefit as compared to other properties that benefit from
those same improvements.
The method of apportionment (method of assessment) developed for this District is based on
the premise that each property to be assessed receives a particular and distinct benefit (special
benefit) from the improvements, services and facilities to be financed by the District
assessments. To proportionately assess the special benefits, it is necessary to calculate each
property's relative share of the special benefits conferred by the funded improvements and
services. The Equivalent Benefit Unit (EBU) method of assessment apportionment is utilized in
this District and establishes a basic unit of benefit (base value) and then calculates the benefit
derived by each assessed parcel as a multiple (or a fraction) of that basic unit. This EBU
method of apportioning special benefits is typically seen as the most appropriate and equitable
assessment methodology for districts formed under the 1972 Act, as the special benefits
conferred on each parcel from the improvements are apportioned as a function of comparable
property characteristics. The base value and assessment formula utilized in other districts may
be different but is typically established to reflect the improvements and properties that specially
benefit from those improvements utilizing property characteristics that may include, but are not
limited to, the type of development (property land use), property's development status, the
proximity of the property to the improvements, and size of the property (acreage or units).
For the purposes of this Engineer's Report, an EBU is the quantum of special benefit derived
from the various improvements by one acre of a developed non-residential parcel. The acreage
associated with developed non-residential parcels has been selected as the basic value for
calculation of assessments since developed non-residential land use represents approximately
81% of the acreage of the benefiting parcels in the District. Thus, the "benchmark" property (1.0
acres of developed non-residential property) derives one EBU of special benefit and is assigned
1.00 EBU.
The following outlines the land use classifications that are associated with or may be associated
with the parcels in the District and the proportional EBU5 established for those land use
classifications.
Land Use Classifications
Non-Residential Developed -- This land use is defined as a parcel that has been developed
with a non-residential use, including, but not limited to, both publicly-owned and privately-owned
commercial retail or service, office or professional service, hotel or motel, manufacturing,
warehousing, parking lot, and/or institutional facilities, including hospitals or other medical
facilities, private schools or education centers, and churches or other non-profit organizations.
As previously noted, one acre of a developed non-residential parcel has been selected as the
basic value for calculation of assessments and is assigned 1.00 EBU per acre or portion
thereof. Therefore, the EBU assigned to each developed non-residential property is established
by multiplying the parcel's applied acreage by 1.0 EBU per acre (e.g., a developed non-
residential parcel of 4.25-acres would be assigned 4.25 EBU, 4.25 acres x 1.0 EBU/acre = 4.25
EBU).
WWI
I8 Of Financial Services49 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Vacant Undeveloped Property — This land use classification includes undeveloped properties
that are identified as parcels with no development but have the potential to be developed.
Although it is recognized that most of the improvements within the District have been
constructed and accepted for maintenance in large part as a direct result of the development of
the properties within the District and these developments clearly receive particular and distinct
benefits (direct special benefits) from those improvements, it is also recognized that the various
improvements within the District are considered improvements shared by multiple developments
or parcels within a specific area of the City rather than being specifically associated with an
individual parcel. Collectively the various improvements were installed and constructed as part
of the overall development of properties within the District to their full and best use, including
vacant undeveloped properties in the vicinity of those improvements. However, it is also
recognized that in part the aesthetic benefits of the District improvements to properties in the
District are related to the use of those properties (people related) and undeveloped properties
have less immediate utilization of those improvements. Therefore, parcels identified as Vacant
Undeveloped Property, up to 20 acres shall be assigned a proportional EBU that is 50% of that
assigned to developed properties, which is 0. 50 EBU per acre (50% of the 1.0 EBU per acre
assigned to Developed Non-Residential properties) up to a maximum of 10.00 EBU. Once a
vacant undeveloped property is developed it will be classified as non-residential development.
Exempt Properties -- Within most districts, there are lots or parcels of land that because of
their size, the nature of their use, and/or the types of improvements being maintained by a
district, do not receive a special benefit from the improvements (i.e., are exempt from
assessment). These parcels may include, but are not limited to, public streets and other
roadways (typically not assigned an APN by the County); dedicated public easements, public
rights-of-way, or utility rights-of-way; common areas, bifurcated lots; sliver parcels or any other
parcel that has little or no assessed value and cannot be developed independently; parcels that
are part of the improvements being maintained by the District and/or public property that
provides substantially similar landscape improvements for the benefit of parcels in the District or
the public at large, such as parks and dedicated open space areas. These types of parcels are
considered to receive no special benefit from the improvements and are therefore exempted
from assessment and are assigned 0.00 EBU.
Special Case Parcels -- In many landscaping and lighting districts (particularly districts that
have a wide range of land uses, multiple developments, and/or diversity in the location and type
of improvements) there may be one or more parcels to be assessed that the standard land use
classifications and proportionality identified above do not accurately identify the use and special
benefits received from the improvements. Properties that are typically classified as Special
Case Parcels usually involve partial or mixed use development of the property or development
restrictions whether those restrictions are temporary or permanent and affect the properties
proportional special benefits. Examples of such restrictions may include situations where only a
portion of the parcel's total acreage is or can be developed. In such a case, the net acreage of
the parcel that is utilized, rather than the gross acreage of the parcel, may be applied to
calculate the parcel's proportional special benefit. Each such parcel shall be addressed on a
case-by-case basis by the Assessment Engineer. The EBU assigned to such parcels shall be
based on the specific issues related to that parcel and its proportional special benefit compared
to other properties that receive special benefits from the improvements.
WWI LLDAN
39 of 4 ""a"
April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/ 2020
At the time this Report was prepared, no parcels within the District are designated as Special
Case Parcels. However, this Special Case designation may be applicable to one or more
parcels in subsequent fiscal years due to parcel changes. property development, and/or
annexation of territory into the District. How the proportional special benefit and assessment for
each Special Case parcel will depend on the reason for the parcel being designated as a
Special Case.
Equivalent Benefit Unit Summary
A summary of the applied Equivalent Benefit Units (EBUs) described above for the various land
use classifications within the District is shown in the following table:
Assessment Land Use Equivalent Benefit Unit Calculation
Non-Residential Developed 1.00 EBU per Acre
Vacant Undeveloped 0 50 EBU per Acre (Maximum 20 Acres and 10.0 EBU)
Exempt 0.00 EBU per Acre
Special Case Varied EBU per Parcel
WWILLDAN
F ancal Services
40 of 49 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Part III - Estimate of Costs
Calculation of Assessments
An assessment amount per Equivalent Benefit Unit (Assessment per EBU) is calculated by:
Taking the "Total Annual Expenses" (Total budgeted costs) and subtracting the "Total General
Benefit Expenses" (Landscaping General Benefit Expenses), to establish the "Total Special
Benefit Expenses";
Total Annual Expenses - General Benefit Expenses = Special Benefit Expenses
To the resulting "Special Benefit Expenses", various "Funding Adjustments" may be applied that
may include, but are not limited to:
Reserve Fund Transfer/Deduction", represents an amount of available existing funds from
the "Operational Reserve Fund Balances" being applied to pay a portion of the Special
Benefit Expenses for the fiscal year.
Additional City Funding", represents an adjustment that is typically used to address any
funding gap between the amount budgeted to provide the improvements and services
Special Benefit Expenses"); and the amount that will be collected through the
assessments. This funding may be addressed by an additional City contribution or loan from
the City which is intended to be recovered in future fiscal years.
These adjustments to the Special Benefit Expenses result in the net special benefit amount to
be assessed "Balance to Levy";
Special Benefit Expenses - Funding Adjustments = Balance to Levy
The amount identified as the "Balance to Levy" is divided by the total number of EBUs of parcels
that receive special benefits to establish the Assessment Rate ("Assessment Per EBU"). This
Assessment Rate is then applied back to each parcel's individual EBU to calculate the parcel's
proportionate special benefits and assessment amount for the improvements.
Balance to Levy/Total EBU = Assessment Per EBU (Assessment Rate)
Assessment Per EBU x Parcel EBU = Parcel Assessment Amount
Note: The maximum assessments outlined in this Report are intended to fully support the
expenses identified as "Special Benefit Expenses". Consequently, there are no "Funding
Adjustments" reflected in the budgets establishing the maximum assessment rates, and
therefore, the "Balance to Levy" is equal to the total "Special Benefit Expenses".
WILD A N
41 of
Financial
April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
District Budget and Assessments
The budget and assessment rates outlined on the following page are based on the City's
estimate of the expenses and related funding necessary for the operation, maintenance and
servicing of the District improvements as identified in Part I of this Report.
The budget provided herein establishes the initial Maximum Assessment per EBU (Maximum
Assessment Rate) for Fiscal Year 2019/2020 which shall be presented to the property owners of
record within the District as part of the Ballot Proceeding. This Maximum Assessment Rate is
identified in the budget as the "Balloted Maximum Assessment Rate Per EBU". In addition, the
proposed assessment rate to be applied for the calculation of the parcel assessments to be
levied and collected for Fiscal Year 2019/2020 is identified in the budget as the "Assessment
Per EBU". Reference is hereby made to the assessment roll included herein as Part V for the
individual maximum assessment amounts balloted for each parcel and the proposed
assessment for Fiscal Year 2019/2020.
WWILLDAN
42 of 4J CE
xOT'
es
April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/ 2020
Fiscal Year 2019/ 2020 Assessment and Initial Maximum Assessment Budget
LMD No. 19-1
BUDGET ITEMS
Fiscal Year 2019/2020
ANNUAL OPERATION&MAINTENANCE EXPENSES
Landscape Maintenance 344,034
Tree Maintenance 61.430
Landscape Irrigation(Water.Electricrty,Maintenance&Repair) 310.294
TOTAL ANNUAL OPERATION&MAINTENANCE EXPENSES 715,758
REHABILITATION/RENOVATION FUNDING&CAPITAL EXPENDITURES
Landscape Improvement Rehabilitation/Renovation Funding
Planned Capital Expenditures(For Current Fiscal Year)
TOTAL REHABILITATION/RENOVATION FUNDING&CAPITAL EXPENDITU $
INCIDENTAL EXPENSES
Operational Reserves(Collection)
Annual Administration Expenses 164,290
TOTAL INCIDENTAL EXPENSES 164,290
TOTAL ANNUAL EXPENSES 880.048
GENERAL BENEFIT EXPENSES 143,235)
TOTAL SPECIAL BENEFIT EXPENSES 736, 813
FUNDING ADJUSTMENTS
TOTAL FUNDING ADJUSTMENTS/CONTRIBUTIONS
BALANCE TO LEVY 736,813
DISTRICT STATISTICS
Total Parcels 360
Assessed Parcels 326
Equivalent Benefit Units (EBUI 877.94
Assessment Per EBU"' 839.2600
Balloted Maximum Assessment Rate Per EBU 840.00
Balloted Amount 737,466.66
FUND BALANCE
Estimated Beginning Fund Balance S 545,405
Operational Reserve&Rehabilitation Funding Collected
Estimated Ending Fund Balance 545.405
1) The"Assessment Per EBL1 shown above represents the proposed assessment rate to be applied for the levy and
collection of assessments for Fiscal Year 2019/2020.
WWI LLDAN
F anc,al Services
43 of §a April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Assessment Range Formula
Any new or increased assessment requires certain noticing, meeting, and hearing requirements
by law. The Omnibus Act defines the terms "new or increased assessment" to exclude certain
conditions. These certain conditions included "any assessment that does not exceed an
assessment formula or range of assessments previously adopted by the agency or approved by
the voters in the area where the assessment is imposed." Under the Omnibus Act, an
assessment is also not deemed to be increased "in the case in which the actual payments from
a person or property are higher than would have resulted when the agency approved the . . .
assessment . . . , if those higher payments are attributable to events other than an increased
rate or revised methodology, such as a change in the density, intensity, or nature of the use of
land.
Recognizing that the cost of maintaining the improvements will increase over time due to
inflation, the maximum assessments (initial maximum assessment amounts and maximum
assessment rate established herein for fiscal year 2019/2020), shall include an annual
inflationary adjustment (Assessment Range Formula).
The Assessment Range Formula for this District is defined by the following:
Commencing in fiscal year 2020/2021 and each fiscal year thereafter, the maximum
assessment rate established for the improvements in the previous fiscal year may be adjusted
by the lesser of three percent (3%) or the percentage increase in the Consumer Price Index
CPI). The Consumer Price Index used for the inflationary adjustment shall be for the San Diego
Area for All Items for All Urban Consumers (CPI-U), as developed by U.S. Bureau of Labor
Statistics. The CPI used shall be as determined by the Bureau of Labor Statistics for a similar
period of time.
Each fiscal year the City shall identify the percentage change in the CR, using the difference
over a 12-month period between the current year and the previous year (Annual Average). This
annual percentage change is generally established based on the average percentage change
from the prior year, but a similar 12-month time period may be used if the data for the annual
average is not available. This percentage difference shall then establish the range of increase to
the maximum assessment rate allowed, but the adjustment applied to the maximum
assessment rate shall not exceed 3%. If the percentage change in the CPI-U is negative, the
maximum assessment rate may not be adjusted from the previous fiscal year (unchanged). If
the percentage change in the CPI-U is greater than 3% then the maximum assessment rate
may be adjusted by 3%. Should the Bureau of Labor Statistics revise such index or discontinue
the preparation of such index, the City may use the revised index or comparable system as
approved by the City Council for determining fluctuations in the cost of living.
This annual adjustment to the authorized maximum assessment rate (adjusted maximum
assessment rate) will provide for an appropriate and reasonable increase to the maximum
assessment rate to address normal cost increases anticipated over the years as a result of
inflation. This Assessment Range Formula shall be identified in the assessment ballots being
presented to the property owners as part of the protest ballot proceeding conducted for the
formation of the District.
In subsequent fiscal years, any proposed annual assessment (rate per EBU) less than or equal
to the calculated (adjusted) Maximum Assessment Rate for that fiscal year is not considered an
increased assessment, even if the proposed assessment is significantly greater than the
assessment applied in the prior fiscal year. Changes in land use or size of an individual property
resulting in an assessment increase, is not considered an increased assessment. To impose a
new or increased assessment other than the annual inflationary adjustment provided by the
preceding Assessment Range Formula or as a result in change in land use or size of an
WWILDAN
44 of Financial9April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
individual property, the City must comply with the provisions of the California Constitution Article
XIIID section 4, that require the preparation of an assessment engineer's report, a public
hearing and certain protest procedures, including mailed notice of the public hearing and
property owner protest balloting. Property owners, through the balloting process, must approve
a proposed new or increased assessment before such an assessment may be imposed.
WWILLDAN
F ancial Service
45 of 49 April 2, 2019, Item #4.2
Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/2020
Part IV - District Diagram
The District Diagram provided on the following page provides a visual depiction of the
boundaries of Landscape Maintenance District No. 19-1 for Fiscal Year 2019/2020. This
diagram also provides a visual depiction of the location and approximate extent of the
improvements to be maintained as part of the District improvements. The combination of this
Diagram and the Assessment Roll referenced in Part V of this Report constitutes the
Assessment Diagram for this District and encompasses all the lots, parcels and subdivisions of
land that receive or will receive a special benefit from the improvements to be provided in the
District at the time this Report was prepared.
Reference is hereby made to the San Diego County Assessor's Parcel Maps for a detailed
description of the lines and dimensions of each parcel within Landscape Maintenance District
No. 19-1 including all subsequent subdivisions, lot-line adjustments, or parcel changes therein.
WILLDMN
46 of 49 April 2, 2019, Item #4.2
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Landscape Maintenance District No. 19-1
Engineer's Report
Fiscal Year 2019/ 2020
Part V - Assessment Roll
Due to the number of parcels within Landscape Maintenance District No. 19-1, the Assessment
Roll containing the maximum assessment amounts to be balloted and the proposed new
assessment amount to be levied and collected for fiscal year 2019/ 2020 has been filed with the
City Clerk in an electronic format and is, by reference, made part of this Report. The proposed
Assessment Roll shall be available for public inspection in the City Clerk's Office during normal
office hours.
Each parcel listed on the Assessment Roll is currently shown and illustrated on the San Diego
County Assessor's Roll and reflective of the Assessor's Parcel Maps at the time this Report was
prepared and shall incorporate all subsequent parcel changes, lot-line adjustments, and
subdivisions of land identified by the San Diego County Assessor's Office. These records are,
by reference, made part of this Report and shall govern for all details concerning the description
of the lots or parcels. All assessments presented on the assessment roll are subject to change
pending the outcome of the Ballot Proceedings and/or as a result of parcel changes made by
the County including parcel splits, parcel merges or development changes that occur prior to the
County generating tax bills for the fiscal year.
WWILLDAN
48 of inandal Services April 2, 2019, Item #4.2
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