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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 hours prior to the meeting. 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 4 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. 9 10 of 63 April 2, 2019, Item #1.5 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; 11 of 63 April 2, 2019, Item #1.5 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 7 12 of 63 April 2, 2019, Item #1.5 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 8 13 of 63 April 2, 2019, Item #1.5 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. E 14 of 63 April 2, 2019, Item #1.5 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. 10 15 of 63 April 2, 2019, Item #1.5 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. 11 16 of 63 April 2, 2019, Item #1.5 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. 12 17 of 63 April 2, 2019, Item #1.5 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 13 18 of 63 April 2, 2019, Item #1.5 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 14 19 of 63 April 2, 2019, Item #1.5 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. 15 20 of 63 April 2, 2019, Item #1.5 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 16 21 of 63 April 2, 2019, Item #1.6 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. 17 22 of 63 April 2, 2019, Item #1.5 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: 23 of 63 April 2, 2019, Item #1.5 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. 19 24 of 63 April 2, 2019, Item #1.5 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. 25 of 63 April 2, 2019, Item #1.5 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. 21 26 of 63 April 2, 2019, Item #1.5 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. 22 27 of 63 April 2, 2019, Item #1.5 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. 23 28 of 63 April 2, 2019, Item #1.5 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. 24 29 of 63 April 2, 2019, Item #1.5 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. 25 30 of 63 April 2, 2019, Item #1.5 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. 26 31 of 63 April 2, 2019, Item #1.5 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. Nil 32 of 63 April 2, 2019, Item #1.6 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 29 34 of 63 April 2, 2019, Item #1.5 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. 30 35 of 63 April 2, 2019, Item #1.5 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. 31 36 of 63 April 2, 2019, Item #1.5 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. 32 37 of 63 April 2, 2019, Item #1.5 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 33 38 of 63 April 2, 2019, Item #1.5 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. 34 39 of 63 April 2, 2019, Item #1.5 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. 35 40 of 63 April 2, 2019, Item #1.5 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 K11 41 of 63 April 2, 2019, Item #1.5 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. 37 42 of 63 April 2, 2019, Item #1.5 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. 38 43 of 63 April 2, 2019, Item #1.5 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 39 44 of 63 April 2, 2019, Item #1.5 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 40 45 of 63 April 2, 2019, Item #1.5 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. CFI 46 of 63 April 2, 2019, Item #1.5 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 42 47 of 63 April 2, 2019, Item #1.5 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) MI 48 of 63 April 2, 2019, Item #1.5 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. 44 49 of 63 April 2, 2019, Item #1.5 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 45 50 of 63 April 2, 2019, Item #1.5 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 46 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. 47 62 of 63 April 2, 2019, Item #1.5 304.8 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. 48 63 of 63 April 2, 2019, Item #1.5 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) 49 54 of 63 April 2, 2019, Item #1.5 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. 50 55 of 63 April 2, 2019, Item #1.5 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: 51 56 of 63 April 2, 2019, Item #1.5 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. 52 57 of 63 April 2, 2019, Item #1.5 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. 53 58 of 63 April 2, 2019, Item #1.5 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. 54 59 of 63 April 2, 2019, Item #1.5 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 55 60 of 63 April 2, 2019, Item #1.5 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 56 61 of 63 April 2, 2019, Item #1.5 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. 57 62 of 63 April 2, 2019, Item #1.5 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 is 80 ef-a2 April 2, 2019 4tem n PNE 1. 1 Y- I. 'd; - 1 \ 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 CHEY NNE F p C U S -RM O O CHERI PC -4 -A S -R GASGAGE GG 0 00 Subject Location PC -6o GO RR -A OS -RM OF Podgy CITY OF POWAY F° y Zoning/Location Map N M 0 N Item: TTM 19-001 0 305 610 1,220 Feet 5 of 27 ATTACHMENT B April 2, 2019, Item #-3-.1 i REIC7fi''.i' TENTATIVE MAP FOR TRACT N0. 06-02 SUNROAD/MADERAS PROPERTY — POWAY, CALIFORNIA GENERAL NOT” ;nrr cr- Fo.:;;r Yz NW Ye, 6W Y4. NE Ya.j 6 : Ir s/cIOPtJIENT i','il; !IC eS 10, T133, Al W 66M P, M, 6800 P, M, 6820 2>]-020-016. PCL 3 PCl 1 f PCL. 1 PCL. 4 APN 2]]-08092 ¢fmmVmx mw I i 'j°y N bxl( e Bxr z I 1 r HIDDEN VALLEY RANCH TENTATIVE MAP "Y MAP TRACT NO. 0042 COR BTORMFILTEW MESA FILTRATO nimiemiuN APN 2n -08C - 1 OF -21 ssxxxmm: a mm,wix.w.° m a wwea vawawnnrse my uyniu rtun n ,. r, r. m. v31w uwu l=,uuvl iu: i4^vuuu wT wa me[roitto.w 1 mv xn •,L• w,.n.unsww wnreeuwar anun mwwiu. w.wn vu, y/ VW 1'k dSIC a w. sniwrsrtn °,ox.rtmo.onifWkk' m. .a wnw os,ic.. 4 um,msw srsrmrA6.Wi p. muea. m, 1 iecaVw,si'. urvd[m irunl0lyfZ': gin eras 3-L=sTY asx wunon I I w..M,lmix.s..a I IM I I x.":m',` aW, xxx.•m.,...sa... w KK . m UBMP NOTED LECEMORS®PDOB SL00L a wwea vawawnnrse my uyniu rtun n ,. r, r. m. v31w uwu l=,uuvl iu: i4^vuuu wT wa me[roitto.w 1 mv xn •,L• w,.n.unsww wnreeuwar anun mwwiu. w.wn PT OHLEGALDESCRIPTIONEBCRSCRI mmrn®mxmxm wrvn,umv xs.ew urns n.,m.-esimu mm. mew 3-L=sTY n, a....., m,m4. mw,mm M.m,w.x ww.m. me.m nnmmos 5--- PLO nmx ---------- mmx wmmm.R.mmem, wwmm.mm •,,,,a„.,, m UBMP NOTED mom msumums W.nms e L--- 1 L___J mmmm we mnnm nm rm .mm.sm rm.nm .m. nm wars mwxmxwnuarmsmmnvrwm,rtu mm.vrt. BENCH MARK s. mw wrgmmem[a n[fwm,.esr Vanes unl.xm OWNER/eRBBMOER OMule - wrs ama mn. slm n<w.a we wo emmm mwwa n wn[ gyavI/S/N.v=¢ re 1r OT 4EHG FR OF WORK lain i ry .. • 1 MPd1 16 WxP mM—I I -T Rm W6N PM m IK XCRON v -T o o s areKu¢ oRs "srz m spaWf, 9E Welxrt—r ueP Y l[ ii/ SHEET 2OF2 HPz» O A V JI' -/ rJP- dr; i y .. B r o i l) r /;'S ///!j'-i/'//•/j f(r// rJ 1-69 VA /1,i a f/ r ,,\ w! \'`.rl Ora 4.i p. •p PcO I I) I l I !, / Ill /r'/>^ Ip,/ i., e: I Pii r aLOT 26,!,, cr.'/ / ", m `4 - -•aA .' /.% l l) I)/ 1 // qqW}}--,[// / r;//i //j - nv,N 7.- 33$$jj i 6r a`I% m 1( I / •=c, ' S° w / //L % .T/>a:,.o/JI.I r li/ i l ili F```/ " ,. yi 1 ., Vio Y1 6l.Is:• ') l l f f v // - ! /, / j //// /l{f) i j . . k ,% i C # // rr / II /' /// O%''` r'_ Ililyl•'i l l l; I/1//,f//i/yu / -- rzi .c TA I +y° y l h // / " I*ill / q,///////,/.i./y rr/ll/l i/I i//•v/ ...../ l'C f'<. / -_- 'V) , A / o Awa i e - N ; / t, i 41 I f^ I / I Ai-Esnxc .a uxe <iwt / r i/ f / i ,! I ,L/ `\ •\ / / i .Tc+' I 10 l f0 ! r o- I 'Ir P•r "}-1 Va e/ A` a ns a c CDif f r A 1 1 I/ I I I I r ti/ r r A / v j A n i T yi si lll//i/i/r/i/// I 1 1 •/ / // I I I / — / / J I ` p 7 , iu: l ll,,l ) I: I I _• I' r/ r ) 1, r /i l'5 I I I _{ "` .} -_ - .. a•u.,». . .-.._. 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 2 of 119 April 2, 2019, Item # 4.1 3 of 119 April 2, 2019, Item # 4.1 1 1552\12\2547457.7 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) 4 of 119 April 2, 2019, Item # 4.1Attachment A 1552\12\2547457.7 2 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"); 5 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 3 (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 6 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 4 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 7 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 5 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. 8 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 6 (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 9 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 7 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 10 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 8 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; 11 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 9 (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: 12 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 10 (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. 13 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 11 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. 14 of 119 April 2, 2019, Item # 4.1 1552\12\2547457.7 12 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. 35 of 119 April 2, 2019, Item # 4.1 1552\12\1949060.8 4 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. 23 of 119 April 2, 2019, Item # 4.137 of 119 April 2, 2019, Item # 4.1 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. 39 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 3 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 1552\12\1949162.11 7 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. 44 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 8 (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. 45 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 9 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. 46 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 10 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 47 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 11 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, 48 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 12 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 49 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 13 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; 50 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 14 (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 1552\12\1949162.11 15 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 1552\12\1949162.11 16 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 1552\12\1949162.11 17 (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 1552\12\1949162.11 18 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 55 of 119 April 2, 2019, Item # 4.1 1552\12\1949162.11 19 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. 25 of 119 April 2, 2019, Item # 4.162 of 119 April 2, 2019, Item # 4.1 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 26 of 119 April 2, 2019, Item # 4.163 of 119 April 2, 2019, Item # 4.1 F-1 1552\12\2547457.7 ATTACHMENT F FORM OF AUTHORITY REGULATORY AGREEMENT 27 of 119 April 2, 2019, Item # 4.164 of 119 April 2, 2019, Item # 4.1 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 65 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 2 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). 66 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 3 (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. 67 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 4 (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. 68 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 5 (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 69 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 6 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; 70 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 7 (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. 71 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 8 (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 72 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 9 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 73 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 10 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 74 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 11 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 75 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 12 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 76 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 13 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 77 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 14 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. 78 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 15 (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 79 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 16 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: 80 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 17 (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 1552\12\1949376.8 18 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. 82 of 119 April 2, 2019, Item # 4.1 1552\12\1949376.8 19 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] 83 of 119 April 2, 2019, Item # 4.1 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; 90 of 119 April 2, 2019, Item # 4.1 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] 91 of 119 April 2, 2019, Item # 4.1 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 92 of 119 April 2, 2019, Item # 4.1 1552\12\1949743.5 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: _____________________ 93 of 119 April 2, 2019, Item # 4.1 1552\12\1949743.5 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. 94 of 119 April 2, 2019, Item # 4.1 1552\12\1949743.5 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. 95 of 119 April 2, 2019, Item # 4.1 1552\12\1949743.5 A-1 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: 96 of 119 April 2, 2019, Item # 4.1 H-1 1552\12\2547457.7 ATTACHMENT H RESERVE DRAW SCHEDULE 97 of 119 April 2, 2019, Item # 4.1 98 of 119 April 2, 2019, Item # 4.1 I-1 1552\12\2547457.7 ATTACHMENT I APPROVED INITIAL RESIDENT SERVICES BUDGET 99 of 119 April 2, 2019, Item # 4.1 100 of 119 April 2, 2019, Item # 4.1 J-1 1552\12\2547457.7 ATTACHMENT J APPROVED INITIAL RESIDENT SERVICES PLAN 101 of 119 April 2, 2019, Item # 4.1 102 of 119 April 2, 2019, Item # 4.1 103 of 119 April 2, 2019, Item # 4.1 104 of 119 April 2, 2019, Item # 4.1 105 of 119 April 2, 2019, Item # 4.1 106 of 119 April 2, 2019, Item # 4.1 107 of 119 April 2, 2019, Item # 4.1 108 of 119 April 2, 2019, Item # 4.1 109 of 119 April 2, 2019, Item # 4.1 110 of 119 April 2, 2019, Item # 4.1 111 of 119 April 2, 2019, Item # 4.1 112 of 119 April 2, 2019, Item # 4.1 113 of 119 April 2, 2019, Item # 4.1 114 of 119 April 2, 2019, Item # 4.1 115 of 119 April 2, 2019, Item # 4.1 116 of 119 April 2, 2019, Item # 4.1 117 of 119 April 2, 2019, Item # 4.1 118 of 119 April 2, 2019, Item # 4.1 119 of 119 April 2, 2019, Item # 4.1 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 1 of 49 April 2, 2019, Item #Li,2 Initiation of Proceeding for the Formation Landscape Maintenance District 19-1 April 2, 2019 Page 2 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 2 of 49 April 2, 2019, Item #` Z Initiation of Proceeding for the Formation Landscape Maintenance District 19-1 April 2, 2019 Page 3 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 3 of 49 April 2, 2019, Item # }• 2 Initiation of Proceeding for the Formation Landscape Maintenance District 19-1 April 2, 2019 Page 4 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. 4 of 49 April 2, 2019, Item #Lt•2 Initiation of Proceeding for the Formation Landscape Maintenance District 19-1 April 2, 2019 Page 5 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 5 of 49 April 2, 2019, Item # 7- Initiation of Proceeding for the Formation Landscape Maintenance District 19-1 April 2, 2019 Page 6 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). 6 of 49 April 2, 2019, Item # •2 Initiation of Proceeding for the Formation Landscape Maintenance District 19-1 April 2, 2019 Page 7 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. 7 of 49 April 2, 2019, Item # 2 Initiation of Proceeding for the Formation Landscape Maintenance District 19-1 April 2, 2019 Page 8 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 8 of 49 April 2, 2019, Item # 2- 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. 9 of 49 ATTACHMENT A April 2, 2019, Item #4.2 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 Landscape Maintenance District No. 19-1 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 tooNaONN i O X ie, i Z 0 p Ony,oav c 4 Y = F a N O cu LL P. g 111111:C (;)N C l G r 1:1)w J 1s5 n.a,num i.4r3 i 1 m a WO 1 aa AeM epov IU d C leo^5 viol` 0 r 3 I I _ r.- t 1cl. A tCj‹, ,,— 1 i 4o.4. a — ,---' I , i 5e 1I_ - —n aaun446•a„.pd ,(!+ aMn7Y,e1 V is aNd I 4,'t. M4Id hyd's r an In,alNa,., i as b ser S I i iii 2 k1 u°,.,C w 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 io2 m 1 u i E $ ' g g i b U Ir o m co C N. m m m m E E a m m° T ''°l 4• a • ww d' 1; 11 Wes: I C'. 0A la Filo, e 1 Y i i l 11 a'tel. A1 ,•, ., I U/00011/3 yl r.y ft d Kt with 1 gldl4 _