AGENDA Poway City Council
Council Chamber I 13325 Civic Center Drive I Poway, CA I 92064 January 16, 2024 I 7 p.m.
Thank you for participating in your local government and the City of Poway Council meetings.
Meetings I Regular City Council meetings are held on the first and third Tuesday of the month at 7:00 p.m. in the Council Chambers located at 13325 Civic Center Drive, Poway, CA 92064. The Council Chamber will be open to the public.
Public Meeting Access I Members of the public may attend the City Council meeting in person, or watch the City Council meeting live online. Regular City Council meetings are broadcast live on Cox Communication Channel 24 and Spectrum Channel 19. Council meeting videos are archived and available for viewing on the City's website.
Speakers I Persons wishing to address the Council on matters not on the agenda may do so under Public Comment. 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. Per the Poway Municipal Code, the speaking time may be reduced.
To Watch Live:
www.poway.org/councilmeetings
Agenda Materials I 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. Sign up at https://poway .org/list.aspx to receive email notifications when City Council agendas are published on line. Items listed on the agenda with a "#" symbol are in preparation.
PLEASE NOTE: Written comments received via email before 3:00 p.m. the day prior to the meeting will be distributed as formal additional material as well as be made available online prior to the City Council meeting. Written comments received after this deadline will be forwarded to the Council, but not available online until after the City Council meeting.
American Disabilities Act Title II I 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.
Steve Vaus
Mayor
Caylin Frank
Deputy Mayor
Peter De Hoff
Councilmember
Anita Edmondson
Council member
Brian Pepin
Council member
Reminder I As a courtesy to all attendees, please silence all electronic devices and engage in conversations outside the Council Chambers.
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 CALL TO ORDER:
ROLL CALL:
PLEDGE OF ALLEGIANCE:
MOMENT OF SILENCE:
PRESENTATION:
Proclamation - Jeannie Hume
PUBLIC COMMENT: 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. You may speak up to three (3) minutes.
Per the Poway Municipal Code, the speaking time may be reduced . Speakers have one opportunity to address the Council under Public Comment.
CONSENT CALENDAR: The Consent Calendar may be enacted in one motion by the Council with a Roll Call Vote without discussion unless a Councilmember, a member of the public, or City Manager requests that an item be removed for discussion.
1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Approval of the October 3, 2023, October 17, 2023, and November 7, 2023 Regular City Council Meeting Minutes
3. Acceptance of the FY 2023-24 Citywide Striping Project with Statewide Stripes, Inc., as Complete
4. Approval of Consultant Agreement with Engineering Partners Inc., to provide design services for the Water Pump Stations Nos. 8 - 12 Motor Control Center Upgrades; RFP No. 24-008
5. Award of Contracts to Eco no lite Systems, Inc., and STC Traffic, Inc., for the Traffic Signal Controller Upgrades - Citywide Communication Improvements Project, Bid No. 24-001, and Determine the Project as Categorically Exempt from the California Environmental Quality Act
6. Award of Agreement to Agricultural Pest Control Services, Inc., for As-Needed Pest Control Maintenance Services; RFP No. 24-010
2 of 4 Regular City Council Meeting January 16, 2024
ORDINANCES FOR INTRODUCTION:
7. Amendments to Chapters 17.08 and 17.56 of the Poway Municipal Code Regarding (1) Multifamily Development Requirements, (2) Batch Broadband (Wireless Communication Facility) Permit Applications
City Manager's Recommendation: It is recommended the City Council introduce the attached Ordinance for first reading. If adopted, the Ordinance would amend the PMC to (1) eliminate the requirement for all multifamily developments in the City to include a swimming pool and (2) restrict batched broadband permit applications to the statutory minimum.
PUBLIC HEARINGS: None
STAFF REPORTS:
8. Approval of Encroachment Agreement (EA) between the City of Poway and Pome BESS, LLC for Long Term Encroachment of the Public Right-of-Way for the installation of an underground Gen Tie (General Transmission) line
City Manager's Recommendation: It is recommended the City Council approve the Pome BESS Encroachment Agreement with Pome BESS, LLC and authorize the City Manager to execute the Agreement on behalf of the City, as well as make any minor modifications or take further action that may be necessary to effectuate the intent of the Encroachment Agreement.
9. Approving a Cal PERS 180-day Waiting Period Exception to Hire a Retired Annuitant City Manager's Recommendation: It is recommended the City Council approve the resolution pursuant to Government Code Sections 7522.56 and 21221(h) approving the waiver of the 180- day wait period for the newly retired Special Projects Engineer to temporarily work as a retired annuitant while the City recruits for the position.
WORKSHOPS: None
COUNCIL-INITIATED ITEMS: None
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 - (G.C. 53232(d)) CITY MANAGER ITEMS:
CITY ATTORNEY ITEMS: (Including any public report of any action taken in closed session) CLOSED SESSION:
10. Conference with Legal Counsel - Anticipated Litigation (Government Code§ 54956.9(d)(2)) - One (1) Case
11. Conference with Legal Counsel - Existing Litigation (Government Code §54956.9(d)(1)) - One (1) Case; Kelly v. City of Poway, United States Court of Appeals for the Ninth Circuit, Case No. 22-55920 3 of 4 Regular City Council Meeting January 16, 2024
ADfQURNMENT:
State of California
County of San Diego
)
) ss.
)
AFFIDAVIT OF POSTING
/, Carrie Gallagher, CMC, City Clerk of the City of Poway, hereby declare under penalty of perjury that this notice of a Regular Meeting as called by the City Council of the City of Poway was posted and provided on January 9, 2024.
Said meeting to be held at 7:00 p.m., January 16, 2024, in the Poway City Council Chambers, 13325 Civic Center Drive, Poway, California. Said notice was posted on the Bulletin Board at the entrance to City Hall. vLlMJ -g hifi!jl
Carrie Gallagher,CMC,City (Serf<
4 of 4 Regular City Council Meeting January 16, 2024
AG EN DA REPORT City of Poway
DATE:
TO:
FROM:
January 16, 2024
Honorable Mayor and Members of the City Council
Carrie Gallagher, City Clerk ~
(858) 668-4535 or [email protected]
CITY COUNCIL
SUBJECT: Approval of the October 3, 2023, October 17, 2023, and November 7, 2023 Regular City Council Meeting Minutes
Summary
The City Council Meeting Minutes submitted hereto for approval are:
• October 3, 2023 Regular City Council Meeting Minut es • October 17, 2023 Regular City Council Meeting Minutes • November 7, 2023 Regular City Council Meeting Minutes 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 the City Council approve the October 3, 2023, October 17, 2023, and November 7, 2023 Regular City Council Meeting Mfnutes.
Public Notification:
None.
Attachments:
A. October 3, 2023 Regular City Council Meeting Minutes B. October 17, 2023 Regular City Council Meeting Minutes C. November 7, 2023 Regular City Council Meeting Minutes Reviewed/Approved By:
w~tise~
Assistant Ctty Manager
1 of17
Reviewed By:
Alan Fenstermacher
City Attorney City Manager
January 16, 2024, Item #2
CITY OF POWAY
CITY COUNCIL REGULAR MEETING
MINUTES
October 3, 2023
City Council Chamb ers
13325 Civic Center Drive, Poway, California
(Per Government Code 54953)
(Mee ting Called to Order as c;ty CounciUCity of Poway Planning Commission/Poway Housing Authori ty/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
Present: Brian Pepin, Peter De Hoff, Anita Edmondson, Caylin Frank, Steve Vaus
STAFF MEMBERS PRESENT
City Manager Chris Hazeltine; Assistant City Manager Wendy Kaserman; City Attorney Alan Fenstermacher; City Clerk Carrie Gallagher; Director of Development Services Bob Manis; Director of Human Resources and Risk Management Jodene Dunphy; Director of Public Works Eric Heidemann ; Director of Community Services Audrey Denham; Fire Chief Jeff Chumbley; Captain Nancy Blanco, Sheriffs Department.
(Note: Hereinafter the titles Mayor, Deputy Mayor, Councilmember, City Manager, Assistant City Manager, City Attorney, 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 C lerk/Secretary and Director of Finance/Finance Officer.)
PLEDGE OF ALLEGIANCE
Deputy Mayor Frank led the Pledge of Allegiance.
MOMENT OF SILEN CE
Mayor Vaus led a moment of silence.
PRESENTATIONS
None.
2 of17 ATTACHM ENT A January 16, 2024, Item #2
City of Poway - Minutes - October 3, 2023
PUBLIC COMMENT
Lori Grennan, representing Preserve Wild Poway, spoke in support of preserving Meadowbrook Pond.
Jeff Schmidt, representing Preserve Wild Poway, spoke in support of preserving Meadowbrook Pond.
Eric Weller voiced support for scheduling neighborhood meetings with Life Time Fitness representatives and developers to discuss resident concerns.
Mike Leland, representing the Poway Chamber of Commerce, thanked the City of Poway for their Fall Festival Partnership .
Hunter Ames spoke regarding a clogged culvert located on Garden Road and related mosquito mitigation .
In response to speaker Hunter Ames, Mayor Vaus noted the clogged culvert has been detennined to be on private property and added the property owner has been notified and is working with City staff to rectify the situation .
CONSENT CALENDAR
Motioned by Mayor Vaus, seconded by Councilmember Pepin to approve Consent Calendar Items 1 through 4. Motion carried 5/0 by the following roll-call vote:
Ayes: Pepin, De Hoff, Edmondson, Frank, Vaus
Noes: None
Abstained: None
Absent: None
Disqualified: None
1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Approval of the June 13, 2023 Special City Council Meeting Minutes
3. Second Reading and Adoption of Ordinance 862 entitled "An Ordinance of the City Council of the City of Poway, California, Amending Chapter 2.28 to Title 2 of the Poway Municipal Code Relating to Electronic and Paperless Filing of Fair Political Practices Commission (FPPC) Campaign and Statement of Economic Interest Disclosure Information"
4. Authorization to Purchase Four (4) Full-Size Cab and Chassis and One (1) Ught-Duty Pickup Truck Utilizing State of California Department of General Services State Contract #1-22-23- 20F, One (1) Rollback Trailer Utilizing Sourcewell Cooperative Purchasing Program Contract #092922-TK I and Appropriation of Funds
Item #4, Mayor Vaus noted a correction to the purchase price for the light duty pickup truck.
ORDINANCES FOR INTRODUCTION
None.
3 of17 January 16, 2024, Item #2
City of Poway - Minutes - October 3, 2023
PUBLIC HEARINGS:
5. Conditional Use Permlt (CUP) 22-0006 and Development Review (DR) 22-0005; a request to develop a drive-through restaurant with outdoor dining located at 12665 Poway Road and a determination that the Project does not require additional CEQA review pursuant ~o CEQA Guidelines 15162
Mayor Vaus opened the Public Hearing at 7:15 p.m.
Associate Planner Shravani Gupta Singavarapu presented the item along with a PowerPoint.
She described the project site as an existing commercial property within the Poway Road Specific Plan (PRSP) noting it to be consistent with development standards and guidelines as previously analyzed in the Environmental Impact Report (EIR) certified by the City Council.
Project location, size, and style were shared.
Ms. Singavarapu stated the applicant proposes to demolish the existing commercial building and replace it with a drive-through restaurant with covered outdoor dining space which will include an entrance from Poway Road and lpai Waaypuk Trail. A separate walkway will provide access from Poway Road to the outdoor dining area to help promote a pedestrian friendly environment. Adequate onsite parking will be provided to comply with City parking standards and a new sidewalk along the west of the lpai Waaypuk Trail will be installed.
Ms. Singavarapu noted a correction to the Agenda Report resolution to include October 3, 2025, as the CUP and DR expiration date.
Public Comment:
Jay Higgins, Applicant, spoke in support of the project.
Tony Allen, representing adjacent business, The House Music & Dance Studio, spoke in support of the project.
End of Public Comment.
Mayor Vaus closed the Public Hearing at 7:24 p.m.
Council discussion ensued and positive responses were made regarding the proposed improvements for the property, including a new sidewalk, a deep setback, landscaping, plans to remain consistent with the City in the Country design, and the potential for community partnerships. The importance of the Poway Road Specific Plan relating to architectural design standards and criteria for future projects was discussed.
Following Council questioning, Cecilia Lirio, applicant architect discussed outdoor lighting options for the building and the parking area adjacent to the lpai Waaypuk Trail.
Motioned by Deputy Mayor Frank, seconded by Councilmember Edmondson to adopt Resolution No. 23-050 "Approving Conditional Use Permit 22-0006 and Development Review 22-0005 for the Construction of a Drive-Through Restaurant Located at 12665 Poway Road; Assessor Parcel Number: 317-490-1400," and making the determination that the Project does not require additional CEQA review pursuant to CEQA Guidelines 15162. Motion carried unanimously.
4of17 January 16, 2024, Item .#2
City of Poway - Minutes - October 3, 2023
STAFF REPORTS:
None.
WORKSHOPS
None.
COUNCIL-INITIATED ITEMS
6. Poway Center for the Performing Arts (PCPA) City Council Subcommittee Mayor Vaus presented the item. He explained the need to fill two PCPA Subcommittee vacancies due to recent changes within the City Council.
No Speakers
Motioned by Mayor Vaus, seconded by Deputy Mayor Frank to appoint Deputy Mayor Frank and Mayor Vaus serve as the new members of the PCPA Subcommittee. Motion carried unanimously.
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS : Pursuant to AB1234 - (G.C. 53232(d))
Councilmember Pepin thanked the Poway Chamber of Commerce for hosting the 2023 Poway Fall Festiv.al event and commented positively on his experience at the Poway Rodeo.
Councilmember De Hoff recognized the City of Poway IT Department for their 2023 Municipal Information Systems Association of California (MISAC) Award for Achievement in Information Technology Practices. Mr. De Hoff also commented positively on his experience at the Poway Rodeo.
Councilmember Edmondson echoed earlier comments regarding the Poway Fall Festival and the Poway Rodeo, she thanked City staff and community volunteers for contributing to the events' success.
Deputy Mayor Frank echoed earlier comments regarding the Poway Fall Festival and the Poway Rodeo, she discussed how the events were successful in bringing visitors from all over the San Diego County to Poway. Serving as alternate to SANDAG Regional Assignment, Ms. Frank provided an update regarding the removal of the Road User Charge (mileage tax) from SANDAG's 2025 Regional Plan.
Mayor Vaus commented positively on the Poway Fall Festival and Poway Rodeo, he recognized local businesses by name for event sponsorship and thanked them for their involvement with the community.
CITY MANAGER ITEMS
None.
5 of17 January 16, 2024, Item #2
City of Poway - Minutes - October 3, 2023
CITY ATTORNEY ITEMS (Including any public report of any action taken in closed session) None.
CLOSED SESSION
None.
ADJOURNMENT
The meeting was adjourned at 7:40 p.m.
6 of17
Carrie Gallagher , CMC
City Clerk
City of Poway, California
January 16, 2024, Item #2
CITY OF POWAY
CITY COUNCIL REGULAR MEETING
MINUTES
October 17, 2023
City Council Chambers
13325 Civic Center Drive, Poway, California
(Per Govemrnent Code 54953)
(Meeting Called to Order as City Council/City of 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
Present: Brian Pepin, Peter De Hoff, Anita Edmondson, Caylin Frank, Steve Vaus
STAFF MEMBERS PRESENT
City Manager Chris Hazeltine; Assistant City Manager Wendy Kaserman; City Attorney Alan Fenstermacher; City Clerk Carrie Gallagher; Director of Development Services Bob Manis; Director of Finance Judy Tran; Director of Human Resources and Risk Management Jodene Dunphy; Director of Public Works Eric Heidemann; Director of Community Services Audrey Denham; Fire Chief Jeff Chumbley; Captain Nancy Blanco, Sheriffs Department. (Note: Hereinafter the titles Mayor, Deputy Mayor, Councilmember, City Manager, Assistant City Manager, City Attorney, 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/Finance Officer.)
PLEDGE OF ALLEGIANCE
Deputy Mayor Frank led the Pledge of Allegiance.
MOMENT OF SILENCE
Mayor Vaus, in response to resident correspondence, provided a brief explanation for holding a Moment of Silence during Council Meetings.
Mayor Vaus led a moment of silence in recognition of those families impacted by the conflict in Israel.
PRESENTATI ONS
Friends of Poway Seniors
7 of17 ATTACHMENT B January 16, 2024, Item #2
City of P9way -Min utes - October 17, 2023
PUBLIC COMMENT
Jeff Schmidt, representing PreseNe Wild Poway, spoke in support of Meadowbrook Pond preseNation .
Nick Carruthers requested correspondence and other public documents related to the Life Time Fitness proposal be made available to the public via the City website.
Farrah Mazhari, representing the Poway Branch Library, shared information on the library's child and adult program offerings and upcoming special events.
Tony Blain spoke in support of Poway trail maintenance and signage improvements.
Darcy Kaushagan requested violation enforcement action pertaining to S89, the California Housing Opportunity and More Efficiency (HOME) Acl
CONSENT CALENDAR
Motioned by Councilmember De Hoff, seconded by Mayor Vaus to approve Consent Calendar Items 1 through 5. Motion carried 5/0 by the following roll-call vote:
Ayes:
Noes:
Pepin, De Hoff, Edmondson, Frank, Vaus
None
Abstained: None
Absent: None
Disqualified: None
1 Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Approval of the July 18, 2023, and August 1, 2023 Regular City Council Meeting Minutes
3. Adoption of the 2024 City Council Meeting Calendar
4. Approval of Consultant Agreement with Project Design Consultants for the Community Park Concrete Ribbon Drain Project, RFP No. 24-003
5. Acceptance of the Booster Pump Replacement, Bid No. 22-001 with Blue Pacific ngineering Construction1 Inc. as Complete
ORDINANCES FOR INTRODUCTION
None.
PUBLIC HEARINGS:
6. Conditional Use Permit (CUP) 23-0002, a request to establish a 16,000 square foot fitness center within an existing vacant commercial building tenant space located at 12342 Poway Road and a determination that the Project is exempt from CEQA review pursuant to CEQA Guidelines section 15301
Mayor Vaus opened the Public Hearing at 7:21 p,rn.
8 of 17 January 16, 2024, Item #2
City of Poway - Minutes - October 17, 2023
Senior Planner Hector Salgado presented the item along with a PowerPoint. He described the project site as an existing commercial property located within the Commercial General (CG) land use designation of the Poway Road Specific Plan (PRSP}, and the subject tenant space within the Poway Town Center commercial shopping center. He explained large fitness centers greater than 2,000 square feet are permitted with the approval of a Conditional Use Permit (CUP}.
Mr. Salgado shared the proposed fitness center hours and noted the business will operate entirely within the building. He added the site contains adequate parking to support its proposed use and is separated from the adjacent residences to the north by a significant grade difference. Mr. Salgado explained several site improvements the applicant has agreed to complete.
Public Comment:
None.
End of Public Comment .
Mayor Vaus closed the Public Hearing at 7:25 p.m.
Additional Material comment slip submitted by a Poway resident voicing opposition to the proposed use was read into the record by Mayor Vaus.
Motioned by Mayor Vaus, seconded by Deputy Mayor Frank to adopt Resolution No. 23-051 "Approving Conditional Use Permit 23-0002 to establish a 16,000 square foot fitness center in a commercial tenant space located at 12342 Poway Road; Assessor Parcel Number: 317-153-21-00," and making the determination the Project is exempt from CEQA review pursuant to CEQA Guidelines section 15301. Motion carried unanimously.
STAFF REPORTS:
7. Midland Road Safety Improvements
City Engineer Tracy Beach presented the item along with a PowerPoint. She stated the Traffic Safety Committee (TSC) met with Midland Road residents in May 2023, providing the public an opportunity to express their concerns regarding Midland Road. Staff found many of the concerns were focused on the stretch of Midland Road between Norwalk Street to Putney Road. Staff worked with the City's traffic engineering consultant to consider various options for improving pedestrian safety along Midland Road. The TSC met again in August to share findings, review, and discuss recommendations for improvements.
Ms. Beach stated signage improvements are being proposed as a traffic calming measure to improve safety for those crossing the Midland Road and Norwalk Street intersection. All existing warning signs would be replaced with fluorescent yellow/green signs, a push button activated rectangular rapid flashing beacon at each end of the designated crosswalk would be installed in addition to installing an advanced n otification fluorescent yellow/green pedestrian crossing signs in both north and south directions of Midland Road. 9 of 17 January 16, 2024, Item #2
City of Poway- Minutes -October 17, 2023
Ms. Beach continued with proposed improvements from Vian Road to Adrian Street which include replacing existing warning signs on Midland Road with fluorescent yellow/green signs and replacing stop signs at each stop-cqntrolled intersection with new stop signs equipped with solar power LED flashing beacons. Push button activated rectangular rapid flashing beacon pedestrian warning signs would be installed at the uncontrolled intersection of Midland Road and Adrian Street. The other two points of the intersection would have push buttons with flashing pedestrian warning signs.
Ms. Beach then described proposed improvements at Midland Road between Temple Street and Edgemoor Street including replacing existing warning signs with fluorescent yellow/green signs and replacing existing stop signs at each stop-controlled intersection with new stop signs equipped with solar power LED flashing beacons. An LED flashing Stop Ahead warning sign for the northbound section and a new School Ahead 25 Mile Per Hour warning sign mid-block between Temple and Edgemoor Street are being proposed. In addition, new pedestrian crossing warning signs are recommended at the intersection of Edgemoor Street and Midland Road.
Ms. Beach then described proposed improvements along Poinsettia Drive to Putney Road to include extending the Midland Elementary School Zone approximately 470 feet further south along Midland Road and relocating the 35 mile per hour speed limit sign near the intersection of Scots Way. A solar power LED vehicle speed feedback sign is proposed to be installed on Midland Road between Janette Lane and Somerset Road facing vehicles traveling in the northbound direction towards Midland Elementary School. Also proposed are new fluorescent yellow/green warning signs and additional enforcement for speed related issues by the Sheriff Department.
Ms. Beach addressed resident feedback by noting speed limits are set based on the 85th percentile speed, meaning, a maximum speed that 85 out of 100 people will not exceed.
Speed survey data was collected in 2019 to establish speed limits along Midland Road. Staff also collected speed and count data in April and May of t~is year and determined the 2019 and the 2023 data support the current speed limits. Ms. Beach concluded by stating, with input from the Fire Department and Poway Unified School District, the Committee, could not support the installation of speed humps on Midland Road, determining they are problematic and not typically installed on collector streets or primary routes for emergency vehicles. Ms. Beach stated the Fire Department and Poway Unified School District expressed specific concerns over speed humps, including: slowing down emergency response times; and safety considerations for school buses driving over speed humps, noting the additional jarring movements could cause injuries to special 11eeds students.
Public Comment:
Carole Martin speaking on behalf of John Barton of Park Meadows HOA shared concerns for resident safety along Midland Road and spoke in support of speed cushions as a traffic calming measure.
Tony Blain spoke in support of inteNention measures to slow traffic along Midland Road.
End of Public Comment.
Council discussion ensued.
10 of 17 January 16, 2024, Item #2
City of Poway- Minutes - October 17, 2023
At the request of Mayor Vaus, Captain Nancy Blanco provided a brief update on findings from a fatal incident along Midland Road noting speed was not a factor in the collision.
Mayor Vaus discussed Assembly Bill 43 giving new hope to local jurisdictions after June 2024 by providing them more ability to reduce speed limits in residential and business zones.
Deputy Mayor Frank proposed an amendment to the motion to direct the City Manager to bring this matter back to the City Council one year from installation to evaluate its effectiveness.
Council responded positively to the recommended traffic safety and calming measures , including signage, lighting and visibility improvements .
A friendly amendment to the recommended motion proposed by Councilmember De Hoff died due to lack of a second. Council voiced a desire to monitor staff proposed improvements for one year after installation prior to recommending additional changes.
Responding to Council questions, Traffic Engineering Consultant Jon Collins of Kimley-Horn confirmed the ineffectiveness of installing speed humps on non-residential or collector streets.
Council responded favorably to Director of Development Services Bob Manis' suggestion to include the addition of pedestrian crossing warning signs at the intersection of Temple Street and Midland Road and included the additional warning sign option into their motion.
Motioned by Deputy Mayor Frank, seconded by Councilmember Edmondson to 1) approve the proposed safety improvements on Midland Road; 2) authorize the City Manager to allow the expenditure of funds from the Motorist Services Program Account (STR0002) to install new signs estimated at $156,000.00; 3) appropriate additional funds in the amount of $14,528.40 from the Excess Safe Reserve Fund (2840) available fund balance to the Motorist Services Program Account; 4) authorize the City Manager to execute the necessary documents for the installation of the safety improvements; and amended to include the addition of the following safety improvements: 5) pedestrian crossing warning signs at the northeast and southwest corners of the intersection of Temple Street with Midland Road; and 6) to direct the City Manager to bring this matter back to the City Council one year from installation of the safety improvements to evaluate their effectiveness. Motion carried unanimously.
WORKSHOPS
None.
COUNCIL-INITIATED ITEMS
None.
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 - (G.C. 53232(d))
Councilmember Pepin shared having attended the Poway Annual Fire Department Open House and thanked Fire Department personnel for hosting the event. 11 of 17 January 16, 2024, Item #2
City of Poway- Minutes - October 17, 2023
Councilmember De Hoff noted his attendance at the Poway Annual Fire Department Open House and thanked Fire Department personnel. He provided a Regronal Solid Waste Association (RSWA) meeting update including discussions related to Organic Waste Reduction SB-1383 trash and recycling collection program.
Councilmember Edmondson thanked the Fire Department for hosting their Annual Open House and shared traffic and pedestrian safety measures in place for the event.
Deputy Mayor Frank echoed earlier Council• comments regarding the Poway Annual Fire Department Open House. Ms. Frank encouraged residents to attend and volunteer for the upcoming "Once Upon a Hallowe'en" event, hosted by the Community Services Department at Old Poway Park on October 28th.
Mayor Vaus also echoed earlier Council comments regarding the Poway Annual Fire Department Open House, he recognized the upcoming 20th anniversary of the Cedar Fire and thanked City Firefighters for their service. Mr. Vaus noted having attended a San Diego Association of Governors (SAN DAG) meeting and provided an update on the recruitment process for the soon to be vacant Executive Director position, expected by July of 2024.
CITY MANAGER ITEMS
City Manager Hazeltine introduced City Planner, Stan Donn and welcomed him to the City of Poway.
CITY ATTORNEY ITEMS (Including any public report of any action taken in closed session} None.
CLOSED SESSION
8. Conference with Legal Counsel - Anticipated Litigation Government Code § 54956.9(d)(2) - two (2) cases
Mayor Vaus recessed the Regular City Council meeting into Closed Session at 8:16 p_m.
ADJOURNMENT
City Attorney Alan Fenstermacher stated no reportable action was taken.
The meeting was adjourned at 9:25 p.m.
12 of 17
Carrie Gallagher, CMC
City Clerk
City of Poway, California
January 16, 2024, Item #2
CITY OF POWAY
CITY COUNCIL REGULAR MEETING
MINUTES
Novemb er 7, 2023
City Council Chambers
13325 Civic Center Driv e, Poway , Californi a
(Per Government Code 54953)
(Mee ting Called to Order as City Council/City of 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
Present: Brian Pepin, Peter De Hoff, Anita Edmondson, Caylin Frank, Steve Vaus
STAFF MEMBERS PRESENT
City Manager Chris Hazeltine; Assistant City Manager Wendy Kaserman; City Attorney Alan Fenstermacher; City Clerk Carrie Gallagher; Director of Development Services Bob Manis; Director of Finance Judy Tran; Director of Human Resources and Risk Management Jodene Dunphy; Director of Public Works Eric Heidemann; Director of Community Services Audrey Denham; Fire Chief Jeff Chumbley; Captain Nancy Blanco, Sheriffs Department. (Note: Hereinafter the titles Mayor, Deputy Mayor, Councilmember, City Manager, Assistant City Manager, City Attorney, City Clerk and Director of Finance shall be used to indicate Mayor/Chair, Deputy MayorN ice Chair, Councilmember/Director, City Manager/Executive Director, Assistant City Manager/Assistant Executive Director, City Attorney/Counsel, City Clerk/Secretary and Director of Finance/Finance Officer.)
PLEDGE OF ALLEGIANCE
Girl Scout Troop 2050 from Painted Rock Elementary School led the Pledge of Allegiance.
MOMENT OF SILENCE
Mayor Vaus led a moment of silence.
PRESENTATIONS
Firewise USA Presentation
Safe Poway Program Update
First Responder CPR Save Recognition
13 of 17 ATTACHMENT C January 16, 2024, Item #2
City of Poway - Minutes - November 7, 2023
PUBLIC COMMENT
James Voss spoke regarding traffic and safety related concerns pertaining to Candy Cane Lane.
Ray Jalisi spoke regarding residential nof se concerns related to The Farm development.
Heather Jalisi spoke regarding mitigation effort.s and noise related concerns at The Farm development.
Mike M. spoke regarding concerns of po/Wcal corruption within the City of Vista.
CONSENT CALENDAR
Motioned by Mayor Vaus, seconded by Deputy Mayor Frank to approve Consent Calendar Items 1 and 3 through 5. Motion carried 5/0 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Disqualified:
Pepin , De Hoff, Edmondson , Frank , Vaus
None
None
None
None
Motioned by Mayor Vaus, seconded by Deputy Mayor Frank to approve Consent Calendar Item 2. Motion carried 4/0/1 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Disqualified:
De Hoff, Edmondson, Frank, Vaus
Pepin
None
None
None
1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Award of Consultant Agreement to NBS Government Finance Group for Landscape Maintenance Districts Assessment and Re-Engineering Services and Appropriation of Funds to 400060"4 1200
3. Acceptance of the FY2021-22 Annual Trash Capture Program with United Storm Water, Inc., as Complete
4. Authorization to Purchase One (1) Medium-Duty Service Truck Utilizing State of California Department of General Services State Contract #1-22-23-20F, Two (2) Dump Truck Bodies by Open Market Competitive Bid and Appropriation of Funds
5. Summary Vacation of a Portion of an Easement Reservation (VAC23-0006) at Assessor Parcel Numbers 277-172-01, 277-172-05 and 277-172-07
6. Salary Range Adjustments for the Water Treatment Plant Manager and Assistant Director of Public Works for Utilities
14 of 17 January 16, 2024, Item #2
City of Poway- Minutes - November 7, 2023
ORDINANCES FOR INTRODUCTION
None.
PUBLIC HEARINGS:
7. FY2024-2025 Community Development Block Grant Program Mayor Vaus opened the Public Hearing at 7:33 p.m.
Senior Management Analyst Marie Sanders presented the item. She explained federal• grant funding for the program is administered by the County of San Diego and Poway's share is anticipated to be $221,078 for Fiscal Year 2024-25. Council approval is required to apply for these funds which include programs previously funded including Poway's share of the North County Bridge to Housing Shelter System, 2-1-1 San Diego, HomeShare and Community Connections Program with ElderHelp of San Diego, and ADA public facility improvements at Community Park.
Ms. Sanders explained the City must first appropriate the funds for each program from the General Fund and reimbursements from grant funding are made by the County throughout the fiscal year. Staff recommends maintaining the same funding amounts for each of the social services programs as they are currently funded with the action authorizing staff to submit applications for each program for the County of San Diego County Board of Supervisors' consideration in early spring.
Public Comment:
None.
End of Public Comment.
Mayor Vaus closed the Public Hearing at 7:34 p.m.
Motioned by Mayor Vaus, seconded by Deputy Mayor Frank to adopt Resolution No. 23-055 authorizing the submission of four applications for the FY2024-2025 CDBG program; 2) authorize the appropriation of $221,078.08 to the CDBG Fund (F241.0) from the General Fund (F1000), as a loan, to fund the proposed FY2024-2025 CDBG program upon approval by the County; and 3) authorize the City Manager to execute all necessary contracts with the County. Motion carried unanimously.
STAFF REPORTS:
8. Urgency Ordinance Banning Distribution of Hate Litter Mayor Vaus introduced the item and· commented on the need to implement penalties to discourage hate litter distribution intended to frighten , intimidate or harass members of any protected class . He reiterated that hate litter will not be tolerated and has no place in Poway.
City Attorney Alan Fenstermacher presented the item and explained the ordinance applies to distribution of any materials, called hate litter, as a defined term meant to willfully injure, harass or oppress anyone based on a protected class which is defined by federal and state law. 15 of 17 January 16, 2024, Item #2
City of Poway- Minutes - November 7, 2023
Those protections include religion and race in addition to many other characteristics.
Pamphlets, flyers or other materials containing no other legitimate purpose and determined to be hate litter are considered in violation of the ordinance and are punishable by up to six months in prison, a $1,000 fine, or both.
Mr. Fenstermacher added the reason for bringing the ordinance forward on an urgency basis, noting past incidents in Poway and around San Diego County and recent events in the Middle East including the escalation hate incidents against Jewish, Arab American and Muslim communities. He emphasized the proposed ordinance would apply to the aforementioned groups and all other protected classes and religions.
Mr. Fenstermacher stated the urgency ordinance must be adopted by a four-fifths (4/5) vote will go into effect immediately if adopted and with no need for a second reading and will not require a 30-day waiting period following approval.
Public Comment :
None.
End of Public Comment .
Council discussion ensued. Council responded positively to the ordinance as a measure to protect Poway residents from threats and other harassment based on federal and state protected characteristics and added the ordinance will provide the City with the tools to deter, discourage and penalize those participating in this type of behavior.
Motioned by Mayor Vaus, seconded by Councilmember Pepin to adopt Urgency Ordinance No. 863, which must be passed by a four-fifths (4/5) vote, to take effect immediately without the need for any further action by the City Council or 30-day waiting period. Motion carried unanimously.
WORKSHOPS
None.
COUNCIL-INITIATED ITEMS
None.
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 - (G.C. 53232(d))
Councilmember Pepin noted having attended the 1oth annual Poway Heroes Softball Game and recognfzed Tony Rubino and the Poway Padres for hosting the event.
Councilmember De Hoff stated having attended the 10th annual Poway Heroes Softball Game and thanked the organizers of the event. He noted attending the two Life Time Fitness public information meetings and thanked various staff members for their participation in those meetings.
Councilmember Edmondson acknowledged Girl Scout Troop 2050 and thanked them for their participation in tonight's meeting . Ms. Edmondson noted her attendance at the public information 16 of17 January 16, 2024, Item #2
City of Poway - Minutes - November 7, 2023
meetings for Life Time Fitness and believes the public forum as a great way for the public to participate in local government having an opportunity to ask questions, express concerns and offer suggestions.
Deputy Mayor Frank acknowledged the Community Services staff and volunteers for hosting the Once Upon a Hallowe'en at Old Poway Park.
Mayor Vaus invited the public to attend upcoming City events on Saturday, November 11 including the Veterans Day Commemorative Park Celebration, the Farmer's Market and Train Song Festival.
CITY MANAGER ITEMS
None.
CITY ATTORNEY ITEMS (Including any public report of any action taken in closed session) None.
CLOSED SESSION
None.
ADJOURNMENT
The meeting was adjourned at 7:47 p.m.
17 of 17
Carrie Gallagher, CMC
City Clerk
City of Poway, California
January 16, 2024, Item #2
January 16, 2024, Item #3
AG EN DA REPORT City of Poway
DATE:
TO:
FROM:
CONTACT:
January 16, 2024
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Services fn
Andrea Thomas, Associate Civil Engineer M
(858) 668-4605 or [email protected] -"/ 1
CITY COUNCIL
SUBJECT: Acceptance of the FY 2023-24 Citywide Striping Project with Statewide Stripes, Inc., as Complete
Summary:
On June 13, 2023, the City Council extended the FY 2022-23 Citywide Striping project contract with Statewide Stripes, Inc., for the FY 2023-24 Citywide Striping project, Bid No. 22-012, in the amount of $422,065.00. This action will accept the project as complete.
Recommended Action:
It is recommended the City Council:
1) Accept the FY 2023-24 Citywide Striping project as complete; 2) Authorize the City Clerk to file and record the Notice of Completion; 3) Authorize the release of the retention in the amount of $21,103.25 if unencumbered, 45 days after City Council acceptance;
4) Release the Merchants Bonding Company Bond for Material and Labor in the amount of $422,065.00 after the release of retention; and
5) Retain the Merchants Bonding Company Bond for Faithful Performance for a period of one (1) year.
Discussion:
The scope of the project included replacement of traffic striping and pavement markings on public streets and refreshment of painted curbs within Street Maintenance Zone 6. The streets are located south of Espola Road, north of Twin Peaks Road, east of Pomerado Road and west of Summer Sage Road. The work also included the Adobe Ridge neighborhood just south of Camino del Norte.
Additionally, striping, legends and painted curbs were refreshed in Zones 2, 4, and 8. This project has been coordinated with the 2022-23 Street Overlay Project and the 2023-24 Street Maintenance Project.
This action accepts the FY 2023-24 Citywide Striping project as complete, however the contract will remain in force and open until June 30, 2024, to complete additional as-needed work. There were no 1 of 2
January 16, 2024, Item #3
change orders for this project. The final contract amount is $422,065.00.
Environmental Review:
The action of acceptance of public improvements that have been completed, which was the subject of a prior environmental determination, is not considered a Project pursuant to Section 15378(b)(5) of the CEQA Guidelines and therefore not subject to the California Environmental Quality Act.
Fiscal Impact:
Sufficient funds are available in the project account (ST027) for the release of retention.
Public Notification:
None.
Attachments:
None.
Reviewed/Approved By:
Assistant City Manager
2 of2
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
City Manager
January 16, 2024, Item #4
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
January 16, 2024
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Services ft\
Alex Ubaldo, P.E., Principal Civil Engineer~
(858) 668-4602 or [email protected] '-"-
CITY COUNCIL
Approval of Consultant Agreement with Engineering Partners Inc., to provide design services for the Water Pump Stations Nos. 8 -12 Motor Control Center Upgrades; RFP No. 24-008
This action will award a Consultant Agreement to Engineering Partners Inc. (EPI) to provide design services for the Water Pump Stations Nos. 8 -12 Motor Control Center Upgrades.
Recommended Action:
It is recommended the City Council approve the Consultant Agreement (Attachment A) with Engineering Partners Inc., in the amount of $145,035 for the Water Pump Stations Nos. 8 -12 Motor Control Center Upgrades, per the outlined terms of the agreement and authorize the City Manager to execute the necessary documents.
Discussion:
In 2014, the City hired a consultant to assess the Water Distribution System assets and prioritize their rehabilitation and replacement needs based on existing conditions and risk assessments. The assessment identified the motor control centers at five water pump stations located throughout the City to be nearing the end of their useful life.
On September 27, 2023, the Development Services Department issued a Request for Proposal (RFP No. 24-008) to assess the conditions and design the renovation and/or replacement of the motor control centers and appurtenant equipment at the five water pump stations located at:
• PS-8 Woodcliff Pump Station -14162 Donart Drive
• PS-9 Welton Pump Station -12701 Welton Lane
• PS-10 Community Road Pump Station -12520 Community Road • PS-11 and PS-12 Gregg Street Potable and Reclaimed Pump Station -13621 Gregg Street The City received proposals from two consulting firms. After evaluating and scoring the proposals, staff concluded EPI is the most qualified consultant for this project. EPI is familiar with this type of 1 of 18
January 16, 2024, Item #4
work and presented a team with specific experience with electrical system assessment and design for water treatment facilities.
The project scope includes: evaluating the motor control center (MCC) at the five water pump stations; designing for their replacement, including the main switchboards, associated wiring and appurtenant equipment; preparing the construction documents; and providing bidding support services.
Environmental Review:
This action to approve the consultant agreement is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
There is sufficient funding available in the MCC Upgrades project (WT041) for this request. The consultant's fee will be based on the scope of work as outlined in the Consultant Agreement and the not-to-exceed fee of $145,035.
Public Notification:
None.
Attachments:
A. Consultant Agreement
Reviewed/Approved By:
w~~a~
Assistant City Manager
2 of 18
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
City Manager
January 16, 2024, Item #4
City of Poway
STANDARD AGREEMENT FOR SERVICES
This Agreement, entered into this 17th day of January, 2024, by and between the CITY OF POWAY (hereinafter referred to as "City") and ENGINEERING PARTNERS, INC. (hereinafter referred to as "Consultant").
RECITALS
WHEREAS, City desires to obtain the services of a private consultant to perform an electrical system assessment and report for the Water Pump Stations Nos. 8 -12 Motor Control Center Upgrades Project (Project);
WHEREAS, Consultant is an electrical engineering consultant and has represented that Consultant possesses the necessary qualifications to provide such services; and WHEREAS, City has authorized the preparation of an agreement to retain the services of Consultant as hereinafter set forth.
NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONSUL TANT ON THE FOLLOWING TERMS AND CONDITIONS:
1. Scope of Services.
Consultant shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
2. Compensation and Reimbursement.
City shall compensate and reimburse Consultant as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
3. Term of Agreement.
The term of this Agreement shall be as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
4. Termination.
This Agreement may be terminated with or without cause by City. Termination without cause shall be effective only upon 60-day written notice to Consultant. During said 60- day period Consultant shall perform all consulting services in accordance with this Agreement.
This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Consultant in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City.
Termination for cause shall be effected by delivery of written notice of termination to Consultant.
Such termination shall be effective upon delivery of said notice. 3 of 18 ATTACH~ENT A
January 16, 2024, Item #4
5. Confidential Relationship.
City may from time to time communicate to Consultant certain information to enable Consultant to effectively perform the services. Consultant shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Consultant shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services.
The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Consultant, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Consultant without any obligation of confidentiality; or (ivf has been or is hereafter rightfully disclosed to Consultant by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.
Consultant shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this contract without the prior written consent of the City. In its performance hereunder, Consultant shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other persori, firm or corporation. • • •
6. Office Space and Clerical Support.
Consultant shall provide its own office space and clerical support at its sole cost and expense.
7. Covenant Against Contingent Fees.
Consultant declares that it has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of the Agreement. For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps and other documents prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Consultant upon demand.
9. Conflict of Interest and Political Reform Act Obligations.
During the term of this Agreement Consultant shall not act as consultant or perform services of any kind for any person or entity whose interests conflict in any way with those of the City of Poway. Consultant shall at all times comply with the terms of the Political Reform Act and the local conflict of interest code. Consultant shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Consultant has a financial interest as defined in Government Code Section 87103.
Consultant represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City. 4 of 18 2
January 16, 2024, Item #4
"Consultant" means an individual who, pursuant to a contract with a state or local agency:
(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract;
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or
• (B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code.
DISCLOSURE DETERMINATION:
[8] 1. ConsultanUContractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above.
No disclosure required.
D 2. ConsultanUContractor will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, ConsultanUContractor shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law.
Robert J. Manis, Director of Development Services
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void.
11. Maintenance of Records.
Consultant shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the contract period and for three 5 of 18 3
January 16, 2024, Item #4
(3)
years
from
the
date
of
final
payment
under
this
Agreement,
for
inspection
by
City
and
copies
thereof
shall
be
furnished,
if requested.
12. •
Independent
Contractor.
At
all
times
during
the
term
of
this
Agreement,
Consultant
shall
be
an
independent
contractor
and
shall
not
be
an
employee
of
the
City
of
Poway.
City
shall
have
the
right
to
control
Consultant
only
insofar
as
the
results
of
Consultant's
services
rendered
pursuant
to
this
Agreement;
however,
City
shall
not
have
the
right
to
control
the
means
by
which
Consultant
accomplishes
such
services.
13. Licenses,
Permits,
Etc.
Consultant
represents
and
declares
to
City
that
it
has
all
licenses,
permits,
qualifications,
and
approvals
of
whatever
nature
that
are
legally
required
to
practice
its
profession
.
Consultant
represents
and
warrants
to
City
that
Consultant
shall,
at
its
sole
cost
and
expense,
keep
in
effect
at
all
times
during
the
term
of
this
Agreement,
any
license,
permit,
or
approval
which
is
legally
required
for
Consultant
to
practice
its
profession.
.
.
.
.
14. Consultant's
Insurance.
Consultant
shall
provide
insurance
as
set
forth
in
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
15. Indemnification.
(a)
For
Claims
(as
defined
herein)
other
than
those
alleged
to
arise
from
Consultant's
negligent
performance
of
professional
services,
City
and
its
respective
elected
and
appointed
boards,
officials,
officers,
agents,
employees
and
volunteers
(individually
and
collectively,
"lndemnitees")
shall
have
no
liability
to
Consultant
or
any
other
person
for,
and
Consultant
shall
indemnify,
protect
and
hold
harmless
lndemnitees
from
and
against,
any
and
all
liabilities,
claims,
actions,
causes
of
action,
proceedings,
suits,
damages,
judgments
, liens,
levies,
costs
and
expenses,
including
reasonable
attorneys'
fees
and
disbursements
(collectively
"Claims"),
which
lndemnitees
may
suffer
or
incur
or
to
which
lndemnitees
may
become
subject
by
reason
of
or
arising
out
of
any
injury
to
or
death
of
any
person(s),
damage
to
property,
loss
of
use
of
property,
economic
loss
or
otherwise
occurring
as
a
result
of
Consultant's
negligent
performance
under
this
Agreement,
or
by
the
negligent
or
willful
acts
or
omissions
of
Consultant,
its
agents,
officers,
directors,
sub-consultants
or
employees.
(b)
For
Claims
alleged
to
arise
from
Consultant's
negligent
performance
of
professional
services,
lndemnitees
shall
have
no
liability
to
Consultant
or
any
other
person
for,
and
Consultant
shall
indemnify
and
hold
harmless
lndemnitees
from
and
against,
any
and
all
Claims
that
lndemnitees
may
suffer
or
incur
or
to
which
lndemnitees
may
become
subject
by
reason
of
or
arising
out
of
any
injury
to
or
death
of
any
person(s),
damage
to
property,
loss
of
use
of
property,
economic
loss
or
otherwise
to
the
extent
occurring
as
a
result
of
Consultant's
negligent
performance
of
any
professional
services
under
this
Agreement,
or
by
the
negligent
or
willful
acts
or
omissions
of
Consultant,
its
agents,
officers,
directors,
sub-consultants
or
employees,
committed
in
performing
any
of
professional
services
under
this
Agreement.
For
Claims
alleged
to
arise
from
Consultant's
professional
services,
Consultant's
defense
obligation
to
lndemnitees
shall
include
only
the
reimbursement
of
reasonable
defense
costs
and
attorneys'
fees
to
the
extent
caused
by
Consultant's
negligence.
6 of
18 4
January 16, 2024, Item #4
(c)
The
foregoing
obligations
of
Consultant
shall
not
apply
to
the
extent
that
the
Claims
arise
from
the
sole
negligence
or
willful
misconduct
of
City
or
its
elected
and
appointed
boards,
officials,
officers,
agents,
employees
and
volunteers.
(d)
In
any
and
all
Claims
against
City
by
any
employees
of
the
Consultant,
anyone
directly
or
indirectly
employed
by
it
or
anyone
for
whose
acts
it
may
be
liable,
the
indemnification
obligation
under
this
Section
15 shall
not
be
limited
in
any
way
by
any limitation
on
the
amount
or
type
of
damages,
compensation
or
benefits
payable
by
or
for
the
Consultant
under
worker's
compensation
acts,
disability
benefit
acts
or
other
employee
benefit acts.
(e)
Consultant
shall,
upon
receipt
of
written
notice
of
any
Claim,
promptly
take
all
action
necessary
to
make
a
claim
under
any
applicable
insurance
policy
or
policies
Consultant
is
carrying
and
maintaining;
however,
if
Consultant
fails
to
take
such
action
as
is
necessary
to
make
a
claim
under
any
such
insurance
policy,
Consultant
shall
reimburse
City
for
any
and
all
costs,
charges,
expenses,
damages
and
liabilities
incurred
by
City
in
making
any
claim
on
behalf
of
Consultant
under
any
insurance
policy
or
policies
required
pursuant
to
this
Agreement.
(f)
The
obligations
described
in
Section
15(a)
through
(e)
above
shall
not
be
construed
to
negate,
abridge
or
otherwise
reduce
any
other
right
or
obligation
of
indemnity
which
would
otherwise
exist
as
to
any
party
or
person
indemnified
pursuant
to
this
Section
15 .
(g)
The
rights
and
obligations
of
the
parties
described
in
this
Section
15 shall
survive
the
termination
of
this
Agreement.
16. Assumption
of
Risk.
Except
for
injuries
to
persons
caused
by
the
willful
misconduct
of
any
lndemnitee
and
not
covered
by
insurance
maintained,
or
required
by
this
Agreement
to
be
maintained,
by
Consultant:
(a)
Consultant
hereby
assumes
the
risk
of
any
and
all
injury
and
damage
to
the
personnel
(including
death)
and
property
of
Consultant
that
occurs
in
the
course
of,
or
in
connection
with,
the
performance
of
Consultant's
obligations
under
this
Agreement
, including
but
not
limited
to
Consultant's
Scope
of
Services;
and
(b)
it
is
hereby
agreed
that
the
lndemnitees
are
not
to
be
liable
for
injury
or
damage
which
may
be
sustained
by
the
person,
goods
or
property
of
Consultant
or
its
employees
in
connection
with
Consultant's
performance
its
obligations
under
this
Agreement,
including
but
not
limited
to
Consultant's
Scope
of
Services
.
17. Consultant
Not
an
Agent.
Except
as
City
may
specify
in
writing,
Consultant
shall
have
no
authority
,
expressed
or
implied
,
to
act
on
behalf
of
City
in
any
capacity
whatsoever
as
. an
agent.
Consultant
shall
have
no
authority,
expressed
or
implied,
pursuant
to
this
Agreement
to
bind
City
to
any
obligation
whatsoever.
18. Personnel. Consultant
shall
assign
qualified
and
certified
personnel
to
perform
requested
services.
The
City
shall
have
the
right
to
review
and
disapprove
personnel
for
assignment
to
Poway
projects
. City
shall
have
the
unrestricted
right
to
order
the
removal
of
any
person(s)
assigned
by
Consultant
by
giving
oral
or
written
notice
to
Consultant
to
such
effect.
7 of
18 5
January 16, 2024, Item #4
Consultant's
personnel
shall
at
all
times
comply
with
City's
drug
and
alcohol
policies
then
in
effect.
19. Notices. Notices
shall
be
given
as
described
on
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof
.
20. Governing
Law,
Forum
Selection
and
Attorneys'
Fees.
This
Agreement
shall
be
governed
by,
and
construed
in
accordance
with,
the
laws
of
the
State
of
California.
Each
party
to
this
Agreement
consents
to
personal
jurisdiction
in
San
Diego
County,
California,
and
hereby
authorizes
and
accepts
service
of
process
sufficient
for
personal
jurisdiction
by
first
class
mail,
registered
or
certified,
postage
prepaid,
to
its
address
for
giving
notice
as
set
forth
in
Exhibit
"A"
hereto.
Any
action
to
enforce
or
interpret the
terms
or
conditions
of
this
Agreement
shall
be
brought
in
the
Superior
Court
in
San
Diego
County
,
Central
Division,
unless
the
parties
mutually
agree
to
submit
their
dispute
to
arbitration
.
Consultant
hereby
waives
any
right
to
remove
any
such
action
from
San
Diego
County
as
is
otherwise
permitted
by
California
Code
of
Civil
Procedure
section
394
.
The
prevailing
party
in
any
such
action
or
proceeding
shall
be
entitled
to
recover
all
of
its
reasonable
litigation
expenses,
including
its
expert
fees,
attorneys'
fees,
courts
costs,
arbitration
costs,
and
any
other
fees
.
Notwithstanding
the
foregoing,
in
the
event
that
the
subject
of
such
an
action
is
compensation
claimed
by
Consultant
in
the
event
of
termination,
Consultant's
damages
shall
be
limited
to
compensation
for
the
60-day
period
for
which
Consultant
would
have
been
entitled
to
receive
compensation
if terminated
without
cause,
and
neither
party
shall
be
entitled
to
recover
their
litigation
expenses
.
21. Gender. Whether
referred
to
in
the
masculine,
feminine,
or
as
"it
," "Consultant"
shall
mean
the
individual
or
corporate
consultant
and
any
and
all
employees
of
consultant
providing
services
hereunder. 22.
Counterparts. This
Agreement
(and
any
amendments)
may
be
executed
in
multiple
counterparts,
each
of
which
shall
be
deemed
an
original,
but
all
of
which,
together,
shall
constitute
one
and
the
same
instrument.
Documents
delivered
by
telephonic
facsimile
transmission
shall
be
valid
and
binding
.
23. Entire
Agreement.
This
Agreement
shall
constitute
the
entire
understanding
between
Consultant
and
City
relating
to
the
terms
and
conditions
of
the
services
to
be
performed
by
Consultant.
No
agreements,
representations
or
promises
made
by
either
party,
whether
oral
or
in
writing,
shall
be
of
any
force
or
effect
unless
it is
in
writing
and
executed
by
the
party
to
be
bound
thereby.
24. Certification
and
Indemnification
Regarding
Public
Employees'
Retirement
Law/Pension
Reform
Act
of
2013.
Contractor
hereby
certifies
that
all
persons
providing
services
to
City
by
Contractor
are
not
current
members
of
the
California
Public
Employees'
Retirement
System
(Cal
PERS)
and
shall
not become
members
of
Cal
PERS
while
providing
services
to
City
.
8 of
18 6
January 16, 2024, Item #4
Contractor further provides that in the event Contractor assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, Contractor hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Contractor to provide services to City has been misclassified.
25. Severability.
If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect. • •
(Remainder of page intentionally left blank)
9 of 18 7
January 16, 2024, Item #4
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written.
CITY OF POWAY
By:-----------
Chris Hazeltine, City Manager
Date: ___________ _
ATTEST:
Carrie Gallagher, CMC, City Clerk
APPROVED AS TO FORM:
By: ____________ _
Alan Fenstermacher, City Attorney
10 of 18
ENGINEERING PARTNERS, INC.
8 By:-----------
Lucy Labruzzo, President & CEO
Date: ___________ _
January 16, 2024, Item #4
A.
"SPECIAL PROVISIONS"
EXHIBIT "A"
Scope of Services.
Consultant agrees to perform consulting services as required by City, which shall consist of the electrical system assessment services further described in the Scope of Services submitted with the proposals, which is included in this document as Attachment 1, and incorporated by reference, as if its contents were fully set forth herein. Consultant shall provide the necessary qualified personnel to perform the services.
B. Compensation and Reimbursement.
City shall pay Consultant a fee in accordance with the Fee Proposals submitted with the proposals, which are included in this document as Attachment 2. Total fee is not to exceed one hundred forty-five thousand thirty-five dollars. ($145,035). Consultant's fee shall include and Consultant shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received.
In addition to said consulting fee, Consultant shall be reimbursed for all reasonable expenses, including lodging, telephone, and travel (air, auto, rail) necessarily incurred in performance of the services. Consultant shall bill City for such expenses as incurred, referencing this Agreement. All expenses shall be itemized and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00). Statements for reimbursement of expenses shall be paid within ten (10) days of approval by City. All air travel shall be billed at coach or special fare rates. Reimbursement for lodging is limited to travel from outside of San Diego County. Consultant shall receive prior authorization for air travel and lodging expenses. All other expenses shall be reimbursed in accordance with City's cash disbursement policies in effect at the time incurred.
C. Term of Agreement.
This Agreement shall commence and be effective as of January 17, 2024 ("Effective Date"), and shall automatically terminate upon completion of the Project, as determined by the City in its sole discretion, unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." Upon the termination of this Agreement, Consultant shall return to City any and all equipment, documents or materials and all copies made thereof which Consultant received from City or produced for City for the purposes of this Agreement.
D. Consultant's Insurance.
1. Coverages:
Consultant shall obtain and maintain during the life of this Agreement all of the following insurance coverages:
(a) Comprehensive General Liability, including premises-operations, products/completed, broad form property damage, and blanket contractual liability with the 11 of 18 1
January 16, 2024, Item #4
following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate.
(b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit.·
(c) Consultant shall obtain and maintain, during the life of the Agreement, a policy of Professional Errors and Omissions Liability Insurance with policy limits of not less than $1,000,000 combined single limits, per claim and annual aggregate. (d) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance.
2. Endorsements:
Endorsements shall be obtained so that each policy contains the following three provisions:
(a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage.
"The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
3. Insurance Certificates:
Consultant shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the following addresses:
To City:
To Consultant:
12 of 18 2
City of Poway -Development Services
13325 Civic Center Drive
Poway, CA 92064
Engineering Partners, Inc.
10150 Meanley Drive, Suite 200
San Diego, CA 92131
January 16, 2024, Item #4
Attachment 1
7. SCOPE OF WORK-
EPI proposes to provide the design and engineering
services for the following pump stations:
• PS-8 Woodcliff Pump Station (14162 Donart Drive)
• PS-9 Welton Pump Station (12701 Welton Lane)
• PS-10 Community Road Pump Station (12520
Community Road)
• PS-11 and PS-12 Greg Street Potable and
Reclaimed Pump Stations (13621 Gregg Street)
The work includes replacing the MCC's, Main
switchboards, associated wiring and equipment that
may need upgrades. Work includes the following
tasks:
Task 1: Project Management
The EPI shall be responsible for project management
activities throughout the life of the contract including managing the schedule, budget, meeting preparation
and facilitation, field reviews, and managing the
project team. The EPI must include a kick-off meeting
and further appropriate number of follow-up meetings
with City staff and the project team. The EPI shall be
responsible for organizing including preparing
agenda(s), compiling meeting minutes, and
distributing the minutes to all attending or as required.
The EPI shall provide a project schedule identifying
milestones and completion date of the Project design
phase using the NTP date provided in the Schedule
section of this RFP as a starting date.
Task 2: Assessment and Preliminary Design Report
Review as-built drawings and conduct field
investigations and surveys as necessary to verify
existing conditions. Assess existing conditions. Prepare design report for the renovation and/or replacement of
the motor control center systems, affected electrical
service panels, wiring, and any associated
components. The analysis will determine whether
existing physical locations are sufficient for new
equipment, how replacemenUretrofit will be conducted,
and recommend any collateral or support facility
replacements/retrofits such as wire, conduit, boxes,
switches, etc. to support the motor control center
replacement and any necessary upgrades for code
compliance. The preliminary design report shall include probable costs of all improvements recommended.
Task 3: Prepare Plans, Specifications, &
Estimates: Prepare construction AUTOCAD
drawings and specifications for the project. The
construction documents will be sufficiently detailed to enable a contractor to perform the construction work
efficiently and shall detail equipment, enclosures,
conduit, anchorage, support, and bracing, etc.
Prepare an opinion of probable construction cost with
the Final Preliminary. Design Report and the 50%,
90% and 100% submittals. PDF versions of all files
shall be provided after approval of final plans.
1. Construction Drawings: EPI shall prepare
construction drawings containing sufficient detail
and information to determine construction costs
and to construct the improvements. EPI shall
prepare plans and specifications. Single line
diagrams, wiring diagrams and schematics, and
all other necessary drawing sheets shall consist
of an appropriate scale, indicating the proposed
improvements. EPI shall provide detail sheets as
necessary. Final design drawings shall be in
AutoCAD format, 2019 version or newer, per the
City's standards for Public Works contracts and
shall be sealed by a Professional Engineer
licensed in the State of California.
2. Project Specifications: EPI shall prepare
Technical Specifications covering the required
work and shall include the City's General and
Technical Provisions. The format shall follow
the currently adopted Greenbook and Poway's
supplemental specifications.
3. Cost Estimates: Estimates shall include
detailed quantities and unit costs for the
proposed improvements in each submittal. We
use actual quotes for larger equipment and RS
Means for ancillary equipment.
Task 4: Bidding Support
EPI shall provide RFI responses to questions
during the contractor bidding process.
City of Poway Water Pump Stations Nos. 8 -12 Motor Control Center Upgrades I 1, January 16, 2024, Item #4
DETAILED
SCOPE
(based
only
on
as
0 built
drawings and
could
change
after
site
investigations)
General
Notes:
A.
All
four
sites
will
require
a
temporary
power
and
pump
control
system
to
keep
the
system,
operational
during
the
removal
and
replacement
of
the
existing
MCC's,
Main
Services
and
related
equipment is
replaced.
Three
of
the
four
sites
have
separate
main
switchboard.
That
will
allow
us
to
provide
temporary
power
using
those
switchboards
as
a
source
i.e.
we
can
remove
the
MCC
and
keep
the
main
energized.
After
the
new
MCC
is
up
and
running
, the
main
can
easily
be
swapped
out
in
a
few
hours.
Woodcliff
may
need
a
temporary
generator
or
transformer
secondary
• temp
power
tap
as
the
main
and
MCC
are
connected
(most
likely
with
bolted
bus).
B. All
four
sites
will
require
SDG&E
coordination
.
EPI
has
many
Certified
SDG&E
approved
Designers.
It
is
not
anticipated
that
the
utility
transformers
will
be
changed,
however
the
service
conductors
most
likely
will.
C. Each
station
will
be
fielded
and
assessed.
A
journeyman
electrician
with
the
required
PPE
will
open
up
switchboards
and
ancillary
equipment
for
us
to
see
conditions
and
conduit
locations.
Accurate
locations
for
conduit
stub
ups
make
it a
lot
easier
for
reconnections.
Detailed
Scope
for
PS
-8
Woodcliff
Pump
Station:
This
station
has
a
600-amp
service
from
SDG&E
and
is
all
indoor
equipment.
There
are
three
50 HP
pumps
with
three
NEMA
size
3 motor
starters.
The
motor
starters
are
interconnected
with
the
suction
and
discharge
manifolds
as
well
as
the
surge
tank
.
We
propose
to
install
solid
state
reduced
voltage
NEMA
size
3 starters
in
the
new
equipment.
Detailed
Scope
for
PS
-9
Welton
Pump
Station
: This
station
has
a
1000-amp
MCC
inside
and
an
outdoor
main
service
from
SDG&E.
There
are
five
100
HP
pumps
with
what
appears
to
be
NEMA
size
4 autotransformer
starters
. The
motor
starters
are
interconnected
with
the
suction
and
discharge
manifolds
. We
propose
to
install
solid
state
reduced
voltage
NEMA
size
4 starters
in
the
new
equipment.
For
the
outdoor
gear,
we
would
propose
NEMA
3R
or
3RX.
Detailed
Scope
for
PS
-10
Community
Road
Pump
Station: This
station
has
an
800-amp
MCC
inside
and
an
outdoor
main
service
from
SDG&E.
There
are
five
75 HP
pump
locations
with
NEMA
size
4 starters
(Part
Winding/Y-Delta
or
Autotransformer).
The
motor
starters
are
interconnected
with
the
suction
and
discharge
manifolds
. There
is
a
surge
tank
at
this
location,
but
it's
not
clear
of
the
MCC
interconnects
with
that.
We
propose
to
install
solid
state
reduced
voltage
NEMA
size
4 starters
in
the
new
equipment.
For
the
outdoor
gear,
we
would
propose
NEMA
3R
or
3RX. Detailed
Scope
for
Gregg
Street
Pump
Station
:
This
station
used
to
have
just
one
reservoir.
It
was
renovated
to
add
a
new
domestic water
tank
in
•
1997.
It
has
a
480-volt,
800-amp
MCC
inside
and
an
outdoor
main
service
from
SDG&E.
There
are
five
100
HP
pump
locations
with
NEMA
size
4 starters
(appears
to
be
autotransformer
type).
Two
of
the
pumps
move
water
from
the
new
domestic
water
tank
to
Buehler
reservoir
and
3 pumps
move
water
from
the
existing
converted
reservoir
to
the
reclaimed
water
system
grid
. The
source
of
the
reclaimed
water
is
Miramar
Pump
Station.
The
motor
starters
are
interconnected
with
the
suction
and
discharge
manifolds
. We
will
need
further
investigation
of
the
controls
to
see
what
exactly
has
changed.
We
propose
to
install
solid
state
reduced
voltage
NEMA
size
4 starters
in
the
new
equipment.
For
the
outdoor
gear,
we
would
propose
NEMA
3R
or
3RX
.
RFP
Exceptions:
1. Infrared
scann
ing
: At
this
point,
we
see
little
value
in
scanning
as
we
are replacing
the
electrical
equipment.
2. Survey
: we
do
not
anticipate
performing
a
topo
survey
or
submitting
survey
notes
.
3. Plan
and
Profile:
we
do
not
anticipate
any
slope
dependent
excavation
this
no
plans
and
profile
drawings
would
be
necessary
.
City
of
Poway
Water
Pump
Stations
Nos.
8 -
12 Motor
Control
Center
Upgrades
January 16, 2024, Item #4
Attachment
2 City
of
Poway
Water
Pump
Stations
8-12
MCC
Upgrades
Description
Principal
Project
Manager
.Electrical
Drafter
Admin
Total
P.E
.
P.E.
Engineer
Hourly
Rate
$205
$160
$125
$85
$75
Task
1 Project
Management
Managing
Schedule
4 32
32 16
$
11,140
Managing
Budget
4 16
16 $
5,380
Meetings
and
Minutes
12 32
32 16
$
12 ,780
$
-
Subtotal
-Task
1 $
29,300
Task
2 -Assessment
and
PDR
Field
Investigation
8 40
40 $
13 ,040
Analysis
of
MCC
replacement
and
8 40
80 16
Temporc;iry
Systems
$
19,400
Prepare
PDR
4 40
40 40
$
15 ,620
Jouneyman
Electrician
-Open
up
Equipment/Trace
Circuits
$
4,800
Structural
Support
-Equipment
Anchorage
and
Pads
$
6,500
$
-
Subtotal
-Task
2 $
59,360
Task
3 -
PS&E
(50%,
90%
and
100%)
50%
Design
4 24
64 64
$
18 ,100
90%
Design
8 24
80 80
$
22 ,280
100%
Design
2 16
40 40
$
11,370
$
-
Subtotal
-Task
3 $
51,750
Task
4 -
Bidd
ing
Support
RFI
Reviews
1 12
20 $
4,625
Submittal
Reviews
Future
$
-
Change
Order
Reviews
Future
$
-
Precon
Meeting
Future
$
-
Record
Drawing
Prep
Future
$
-
$
-
Subtotal
-Task
4 $
4,625
lrotal
Fee
145
,035
I
15 of
18 January 16, 2024, Item #4
EXHIBIT
"B"
Cal
Gov
Code§
7522.56
Deering's
California
Codes
are
current
through
all
1016
chapters
of
the
2018
Regular
Session
and
the
November
6,
2018
Ballot
Measures.
Deering's
California
Codes
Annotated>
GOVERNMENT
CODE>
Title
1 General>
Division
7 Miscellaneous
>
Chapter
21 Public
Pension
and
Retirement
Plans
> Article
4 California
Public
Employees'
Pension
Reform
Act
of
2013
§ 7522.56.
Provisions
applicable
to
person
receiving
pension
benefit
from
public
retirement
system;
Section
supersedes
conflicting
provisions
(a)This
section
shall
apply
to
any
person
who
is
receiving
a pension
benefit
from
a public
retirement
system
and
shall
supersede
any
other
provision
in
conflict
with
this
section.
(b)
A
retired
person
shall
not
serve,
be
employed
by,
or
be
employed
through
a contract
directly
by,
a public
employer
in
the
same
public
retirement
system
from
which the
retiree
receives
the
benefit
without
reinstatement
from
retirement,
except
as
permitted
by
this
section. (c)
A
person
who
retires
from
a public
employer
may
serve
without
reinstatement
from
retirement
or
loss
or
interruption
of
benefits
provided
by
the
retirement
system
upon
appointment
by
the
appointing
power
of
a public
employer
either
during
an
emergency
to
prevent
stoppage
of
public
business
or
because
the
retired
person
has
skills
needed
to
perform
work
of
limited
duration.
( d)Appointments
of
the
person
authorized
under
this
section
shall
not
exceed
a total
for
all
employers
in
that
public
retirement
system
of
960
hours
or
other
equivalent
limit,
in
a
calendar
or
fiscal
year,
depending
on
the
administrator
of
the
system.
The rate
of
pay
for
the
employment
shall
not
be
less
than
the
minimum,
nor
exceed the
maximum,
paid
by
the
employer
to
other
employees
performing
comparable
duties,
divided
by
173.333
to
equal
an
hourly
rate.
A
retired
person
whose
employment
without
reinstatement
is
authorized
by
this
section
shall
acquire
no
service
credit
or
retirement
rights
under
this
section
with
respect
to
the
employment
unless
he
or
she
reinstates
from
retirement.
(e)
16 of
18 (l)Notwithstanding
subdivision
(c),
any
retired
person
shall
not
be
eligible
to
serve
or
be
employed
by
a public
employer
if,
during
the
12-month
period
prior
to
an
appointment
described
in
this
section,
the
retired
person
received
any
unemployment
insurance
compensation
arising
out
of
prior
employment
subject
to
this
section
with
January 16, 2024, Item #4
Cal
Gov
Code
§ 7522.56
a public
employer.
A
retiree
shall
certify
in
writing
to
the
employer
upon
accepting
an
offer
of
employment
that
he
or
she
is
in
compliance
with
this
requirement.
(2)A
retired
person
who
accepts
an
appointment
after
receiving
unemployment
insurance
compensation
as
described
in
this
subdivision
shall
terminate
that
employment
on
the
last
day
of
the
current
pay
period
and
shall
not
be
eligible
for
reappointment
subject
to
this
section
for
a
period
of
12 months
following
the
last
day
of
employment.
(f)A
retired
person
shall
not
be
eligible
to
be
employed
pursuant
to
this
section
for
a
period
of
180
days
following
the
date
of
retirement
unless
he
or
she
meets
one
of
the
following
conditions:
17 of
18 (l)The
employer
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a critically
needed
position
before
180
days
have
passed
and
the
appointment
has
been
approved
by
the
governing
body
of
the
employer
in
a public
.
.
.
meeting.
The
appointment
may
not
be
placed
on
a consent
calendar.
(2)
(A)Except
as
otherwise
provided
in
this paragraph,
for
state
employees,
the
state
employer
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a critically
needed
state
employment
position
before
180
days
have
passed
and the
appointment
has
been
approved
by
the
Department
of
Human
Resources.
The
department
may
establish
a process
to
delegate
appointing
authority
to
individual
state
agencies,
but
shall
audit
the
process
to
determine
if
abuses
of
the
system
occur.
If
necessary,
the
department
may
assume
an
agency's
appointing
authority
for
retired
workers
and
may
charge
the
department
an
appropriate
amount
for
administering
that
authority.
(B)For
legislative
employees,
the
Senate
Committee
on
Rules
or
the
Assembly
Rules
Committee
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a
critically
needed
position
before
180
days
have
passed
and
approves
the
appointment
in
a
public
meeting.
The
appointment
may
not
be
placed
on
a consent
calendar.
(C)For
employees
of
the
California
State
University,
the
Trustees
of
the
California
State
University
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a critically
needed
position
~efore
180
days
have
passed
and
approves
the
appointment
in
a public
meeting.
The
appointment
may
not
be
placed
on
a consent
calendar.
(3)The
retiree
is
eligible
to
participate
in
the
Faculty
Early
Retirement
Program
pursuant
to
a
collective
bargaining
agreement
with
the
California
State
University
that
existed
prior
to
January
1,
2013,
or
has
been
included
in
subsequent
agreements.
2 January 16, 2024, Item #4
Cal
Gov
Code
§ 7522
.56
( 4)The
retiree
is
a public
safety
officer
or
firefighter
hired
to
perform
a function
or
functions
regularly
performed
by
a public
safety
officer
or
firefighter.
(g)A
retired
person
who
accepted
a
retirement
incentive
upon
retirement
shall
not
be
eligible
to
be
employed
pursuant
to
this
section
for
a period
of
180
days
following
the
date
of
retirement
and
subdivision
(f)
shall
not
apply.
(h)This
section
shall
not
apply
to
a
person
who
is
retired
from
the
State
Teachers'
Retirement
System,
and
who
is
subject
to
Section
24214,
24214
.5
or
26812
of
the
Education
Code
.
(i)This
section
shall
not
apply
to
(1)
a subordinate
judicial
officer
whose
position,
upon
retirement,
is
converted
to
a judgeship
pursuant
to
Section
69615,
and
he
or
she
returns
to
work
in
the
converted position,
and
the
employer
is
a trial
court,
or
(2)
a retiree
of
the
Judges'
Retirement
System
or
the
Judges'
Retirement
System
II
who
is
assigned
to
.serve
in
a
court
pursuant
to
Section
68543
.5.
History Added
Stats
2012
ch
296
§
15 (AB
340),
effective
January
1,
2013.
Amended
Stats
2013
ch
528
§ 11
(SB
13),
effective
October
4,
2013
(ch
528
prevails);
ch
76 §
75 (AB
383),
effective
January
1,
2013;
Stats
2014
ch
238
§ 1 (AB
2476),
effective
January
1,
2015.
Annotations Notes
Amendments: Note-
Amendments: 2013
Amendment:
Substituted
(1)
"have
passed"
for
"has
passed"
in
the
first
sentence
of
subds
(f)(l)
and
(f)(2);
(2)
"or
firefighter
hired
to
perform
a
function
or
functions
regularly
performed
by
a
public
safety
officer
or
firefighter"
for
"of
firefighter"
in
subd
(f)(4);
and
(3)
"Judges'
Retirement
System"
for
"Judges'
Retirement
System
I"
in
subd
(i).
18 of
18 3
January 16, 2024, Item #5
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PO RT City of Poway
January 16, 2024
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Services p)
Alex Ubaldo, P.E., Principal Civil Engineer~
(858) 668-4602 or [email protected] \.._ fl"
CITY COUNCIL
Award of Contracts to Econolite Sytems, Inc., and STC Traffic, Inc., for the Traffic Signal Controller Upgrades -Citywide Communication Improvements Project, Bid No. 24- 001, and Determine the Project as Categorically Exempt from the California Environmental Quality Act
This action will award a construction contract to Econolite Systems, Inc., and a construction support services contract to STC Traffic, Inc., (STC) for the Traffic Signal Controller Upgrades -Citywide Communication Improvements project. This project involves replacing the obsolete traffic signal controllers with new controllers at 43 signalized intersections.
Recommended Action:
It is recommended the City Council:
1) Award the construction contract for the Traffic Signal Controller Upgrades -Citywide Communication Improvements project to Econolite Systems, Inc., in the amount of $519,551.84 and authorize the City Manager to execute the contract (Attachment A); 2) Award the construction support services contract to STC Traffic, Inc., in the amount of $67,900.00 and authorize the City Manager to execute the contract (Attachment B); and 3) Make a determination the Project is Categorically Exempt from the California Environmental Quality Act (CEQA).
Discussion:
The Public Works Department operates and maintains 56 signalized intersections in the City of Poway. 43 of the signalized intersections currently have type 170 controllers, which is the first generation of computer controller for signals in California. The type 170 controller has been discontinued, is no longer manufactured, and it will be difficult to find replacements. The project will replace the obsolete controllers with type 2070 controllers and install the necessary fibers and switches to improve traffic signal communications. The type 2070 controller is an advanced transportation controller and is configurable for use with the City's traffic management applications. Replacement of the controllers will meet the City's goals of replacing aging signal components and more efficiently manage, control, and operate the City's traffic signal system.
1 of 27
January 16, 2024, Item #5
Bids were opened on November 28, 2023. A total of 8 bids were received for the construction contract, ranging as follows:
Company Total Bid Amount
Econolite Systems, Inc. $519,551.84
Crosstown .Electrical & Data, Inc. $528,980.00
lteris, Inc. $538,191.00
Baker Electric & Renewables, LLC $623,892.00
HMS Construction, Inc. $675,000.00
DBX, Inc. $765,200.00
Alfaro Communications $779,994.88
Bear Electrical Solutions, Inc. $882,000.00*
*corrected amount
The low bid of $519,551.84 submitted by Econolite Systems, Inc., is an acceptable bid that is responsive to and meets the requirements of the bid specifications. The contract time for this project is 40 working days with an engineer's estimate of $605,800.00.
Construction Support Services
Staff recommends the award of a construction support services contract with STC. After careful evaluation of the scope of work for this project, specifically the construction support services, staff determined it is in the best interest of the City not to proceed with its own formal bid process and recommends the formal bidding procedures for the construction support services portion of the project are waived for the following reasons:
1.) While under contract with the City of Poway for As-Needed Traffic Engineering Services, STC provided the design services for the project and therefore STC is the most qualified contractor to provide construction support services for the project they designed.
2.) The requirement of the Poway Municipal Code Chapter 3.28 to formally bid this work will not result in a more qualified contractor to provide construction support services for this project.
STC's scope includes providing the signal timing conversions for each new controller and turn-on support during construction to ensure proper operation of the traffic signals.
Environmental Review:
The proposed remodel of an existing facility is Categorically Exempt from the California Environmental Quality Act (CEQA) as a Class 1 Categorical Exemption, pursuant to Section 15301 (c) of the CEQA Guidelines, in that the project involves interior modification of an existing facility with no expansion of use.
Fiscal Impact:
There is sufficient funding available in the Traffic Signal Controller Upgrades project account (ST012) to award the contracts.
Public Notification:
None.
2 of 27
January 16, 2024, Item #5
Attachments:
A. Construction Contract
B. Construction Support Services Contract
Reviewed/Approved By:
r
UJ.Je~ ~--
wendy Kq~~rman
Assistant City Manager
3 of 27
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
~
City Manager
January 16, 2024, Item #5
Traffic Signal Controller Upgrades Citywide Communication Improvements SECTION 8
CONSTRUCTION CONTRACT
CITY OF POWAY
TRAFFIC SIGNAL CONTROLLER UPGRADES CITYWIDE COMMUNICATION
IMPROVEMENTS
This Contract made and entered into this 17th day of January, 2024, by and between City of Poway, a municipal corporation of the State of California, hereinafter referred to as "City" and Econolite Systems, Inc., hereinafter referred to as "Contractor." The City and the Contractor, for the consideration hereinafter named, mutually agree as follows:
1. The complete Contract includes all of the Contract Documents, which are incorporated herein by this reference, and include: •
a. This Contract
b. Contract Addenda
c. Contract Change Orders
d. Instructions to Bidders, Proposal Requirements and Conditions e. Contract Specifications
f. Contract Plans
g. General Condition
h. Special Conditions
i. Standard Specification for Public Works, most current edition
2. The Contract Documents are complementary, and that which is required by one shall be as binding as if required by all.
3. Contractor shall provide and furnish all labor, materials, necessary tools, expendable equipment, and all utility and transportation services required for the following work of improvement: The Lake Poway Upper Playground Renovation project includes the demolition of the existing playground structures, and removal of selected concrete sidewalk and handrails. The project also includes the installation of new playground structures and surfacing and the construction of a new ADA parking stall and sidewalk.
4. Contractor agrees to perform all the said work and furnish all the said materials at their own cost and expense that are necessary to construct and complete in strict conformance with Contract Documents and to the satisfaction of the City Engineer, 4 of 27 ATTACHMENT A
January 16, 2024, Item #5
Traffic Signal Controller Upgrades Citywide Communication Improvements the work hereinafter set forth in accordance with the Contract adopted by the City Council.
5. City agrees to pay and Contractor agrees to accept in full payment for performance of this work of improvement as described, the stipulated sum of $519,551.84 the "Contract Price."
City agrees to make progress payments and final payment in accordance with the method set forth in the Special Provisions.
6. Contractor agrees to commence construction of the work provided for herein within Fifteen (15) Calendar Days after the date specified in the Notice to Proceed, and to continue diligently in strict conformance with Contract Documents and without interruption, and to complete the construction thereof within 40 Working Days after the date specified in the Notice to Proceed.
7. Time is of the essence of this Contract, and it is agreed that it would be impracticable or extremely difficult to a$certain the extent of actual loss or damage which the City will sustain by reason of any delay in the performance of this Contract. It is, therefore, agreed that Contractor will pay as liquidated damages to the City the following sum of $500.00 per Calendar Day, for each and every Calendar Days delay in finishing the Work in excess of the number of Working Days prescribed above. If liquidated damages are not paid, as assessed by the City, the City may deduct the amount thereof from any money due or that may become due the Contractor under this Contract in addition to any other remedy available to City.
By executing this Contract, Contractor agrees that the amount of liquidated damages is reasonable and shall not constitute a penalty.
8. In accordance with State of California Senate Bill No. 854, Contractor will maintain and will require all subcontractors to maintain valid and current Department of Industrial Relations (DIR) Public Works Contractor registration during the term of this project. Contractor shall notify the City in writing immediately, and in no case more than twenty-four (24) hours, after receiving any information that Contractor's or any of its Subcontractor's DIR registration status has been suspended, revoked, expired, or otherwise changed.
9. Contractor will pay, and will require all subcontractors to pay, all employees on said Contract a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations and wage standards applicable to this work, a copy of which is on file in the office of the City Clerk of the City of Poway. Federal prevailing wage rates apply for federally funded projects.
Travel and subsistence pay shall be paid in accordance with Labor Code§ 1773.1.
10. Contractor shall be subject to the penalties in accordance with Labor Code of § 1775 for each worker paid (either by Contractor or by any subcontractors under Contractor) less than the prevailing rate described above on the work provided for in this Contract.
5 of27
January 16, 2024, Item #5
Traffic Signal Controller Upgrades Citywide Communication Improvements
11. Contractor and subcontractors shall comply with Labor Code § 1810 and § 1811 which stipulates that eight hours labor constitutes a legal day's work, and § 1812 which stipulates that the Contractor and subcontractors shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed by them in connection with the work performed under the terms of the Contract. Failure to comply with these sections of the Labor Code will subject the Contractor to penalty and forfeiture provisions of the Labor Code § 1813.
12. Contractor will comply with the provisions of Labor Code§ 1777.5 pertaining to the employment of apprentices to the extent applicable to this Contract.
13. Contractor, by executing this Contract, hereby certifies:
"I am aware of and will comply with the Labor Code § 3700 by securing payment for and maintaining in full force and effect for the duration of the contract, complete Workers' Compensation Insurance, and shall furnish a Certificate of Insurance to the City before execution of the Contract. The City, its officers, or employees, will not be responsible for any claims in law or equity occasioned by failure of the Contractor to comply with this paragraph."
Contractor further agrees to require all subcontractors to carry Workers' Compensation Insurance as required by the Labor Code of the State of California.
14. Contractor shall, concurrent with the execution of this Contract, furnish two bonds approved by the City, one in the amount of One Hundred Percent (100%) of the Contract Price, to guarantee the faithful performance of the work ("Performance Bond"), and one in the amount of One Hundred Percent (100%) of the Contract Price to guarantee payment of all claims for labor and materials furnished ("Payment Bond"). This Contract shall not become effective until such bonds are supplied to and approved by the City.
15. a. Contractor shall procure and maintain at its own expense, until completion of 6 of 27
performance, commercial general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss or damage resulting from the wrongful or negligent acts by the Contractor or its officers, employees, servants, volunteers and agents and independent contractors.
Contractor shall provide insurance on an occurrence, not claims-made basis.
Contractor acknowledges and agrees that, for purposes of clarification with the intention of avoiding gaps in coverage with any umbrella or excess insurance, personal and advertising injury coverage shall be triggered by an "offense" while bodily injury and property damage coverage shall be triggered by an "occurrence" during the policy period.
b. Contractor shall further procure and maintain at its own expense, until completion of performance, commercial vehicle liability insurance covering personal January 16, 2024, Item #5
7 of
27 Traffic
Signal
Controller
Upgrades
Citywide
Communication
Improvements
injury
and
property
damage,
of
not
less
than
One
Million
Dollars
($1,000,000)
combined
single
limit
per
occurrence,
and
Two
Million
Dollars
($2,000,000)
in
the
aggregate,
covering
any
vehicle
utilized
by
Contractor
or
its
officers,
employees,
servants,
volunteers
and
agents
and
independent
contractors
in
performing
the
services
required
by
this
Agreement.
c.
Contractor
shall
further
procure
and
maintain at
its
expense,
until
completion
of
performance,
workers'
compensation
insurance
providing
coverage
as
required
by
the
California
State
Workers'
Compensation
Law.
If
any
class
of
employees
employed
by
the
Contractor
pursuant
to
this
Agreement
is
not
protected
by
the
California
State
Workers'
Compensation
Law,
Contractor
shall
provide
adequate
insurance
for
the
protection
of
such
employees
to
the
satisfaction
of
the
City.
This
provision
shall
not
apply
if Contractor
has
no
employees
performing
work
under
this
Agreement.
Contractor
agrees
to
waive
its
statutory
immunity
under
any
worker's
compensation
or
similar
statute,
as
respecting
the
City,
and
to
require
any
and
all
subcontractors
and
any
other
person
or
entity
involved
with
the
Project
to
do
the
same. Worker's
Compensation
Insurance:
o
Contractor
has
no
employees
and
is
exempt
from
workers'
compensation
requirements.
o
Contractor
carries
workers'
compensation
insurance
for
all
employees.
d.
All
policies
required
by
this
section
shall
be
secured
from
insurers
authorized
to
do
business
in
the
State
of
California
with
an
"A"
policyholder's
rating
or
better
and
a
financial
rating
of
at
least
Class
VII,
in
accordance
with
the
current
Best's
Ratings. e.
Contractor
agrees
to
require
that
all
parties,
including
but
not
limited
to
subcontractors,
architects,
engineers
or
others
with
whom
Contractor
enters
into
contracts
or
whom
Contractor
hires
or retains
pursuant
to
or
in
any
way
related
to
the
performance
of
this
Agreement,
provide
the
insurance
coverage
required
herein,
at
minimum,
and,
except
for
worker's
compensation
coverage,
name
as
additional
insureds
the
parties
to
this
Agreement.
Contractor
agrees
to
monitor
and
review
all
such
coverage
and
assumes
all
responsibility
for
ensuring
that
such
coverage
is
provided
in
conformity
with
the
requirements
of
this
Section.
f.
In
the
event
this
Agreement
is
terminated
for
any
reason
prior
to
the
completion
of
all
obligations
and
requirements
of
this
Agreement,
Contractor
agrees
to
maintain
all
coverages
required
herein
until
the
City
provides
written
authorization
to
terminate
the
coverages
following
the
City's
review
and
determination
that
all
liability
posed
under
this
Agreement
as
to
the
party
providing
insurance
has
been
eliminated. g.
Contractor
agrees
and
acknowledges
that
if
it
fails
to
obtain
all
of
the
insurance
required
in
this
Agreement
in
accordance
with
the
requirements
herein,
or
to
obtain
and
ensure
that
· the
coverage
required
herein
is
maintained
by
any
subcontractors
or
others
involved
in
any
way
with
the
Project,
Contractor
shall
be
January 16, 2024, Item #5
Traffic
Signal
Controller
Upgrades
Citywide
Communication
Improvements
responsible
for
any
losses,
claims,
suits,
damages,
defense
obligations,
or
liability
of
any
kind
or
nature attributable
to
the
City,
and/or
its
officers,
employees
, servants,
volunteers,
agents
and
independent
contractors,
that
result
from
such
failure
by
Contractor.
16. a.
Contractor
shall
provide
certificates
of
insurance
with
original
endorsements
to
the
City
as
evidence
of
the
insurance
coverage
required
herein.
Certificates
of
such
insurance
shall
be
filed
with
the
City
on
or
before
commencement
of
performance
of
this
Agreement.
Current
certification
of
insurance
shall
be
kept
on
file with
the
City
at
all
times
until
completion
of
performance
and
acceptance
by
the
City. b.
Notwithstanding
any
inconsistent
statement
in
any
required
insurance
policies
or
any
subsequent
endorsements
attached
thereto,
the
commercial
general
liability
and
commercial
vehicle
liability
policies
shall
bear
endorsements
whereby
it
is
provided
that
the
City,
and
its
officers,
employees,
servants,
volunteers,
agents
and
independent
contractors
are
named
as
additional
insureds
. Additional
insureds
shall
be
entitled
to
the
full
benefit
of
all
insurance
policies
in
the
same
manner
and
to
the
same
extent
as
any
other
insureds
and
there
shall
be
no
limitation
to
the
benefits
conferred
upon
them
other
than
policy
limits
to
coverages.
c.
Contractor
shall
require
the
carriers
of
all
required
insurance
policies
to
waive
all
rights
of
subrogation
against
the
City,
and
its
officers,
employees,
servants,
volunteers,
agents
and
independent contractors.
d.
Each
policy
required
herein
must
be
endorsed
to
provide
that
the
policy
shall
not
be
cancelled
in
coverage
or
limits
(except
by paid
claims)
unless
the
insurer
has
provided
the
City
with
30 days
prior
written
notice
of
cancellation.
Contractor
agrees
to
provide
the
City
with
30 days
written
notice
prior
to
any
non-renewal
or
reduction
in
coverage
or
limits.
e.
All
insurance
policies
required
to
be
provided
by
Contractor
or
any
other
party
must
be
endorsed
to
provide
that the
policies
shall
apply
on
a
primary
and
noncontributing
basis
in
relation
to
any
insurance
or
self-insurance,
primary
or
excess,
maintained
or
available
to
the
City,
and
its
officers,
employees,
servants,
volunteers,
agents
and
independent contractors.
17. a.
Contractor
shall
defend,
indemnify
and
hold
harmless
the
City,
its
officers,
8 of27
officials,
agents,
employees
and
volunteers
from
and
against
any
and
all
claims,
demands
, actions,
losses,
damage,
injuries,
and
liability,
direct
or
indirect
(including
any
and
all
costs
and
expenses
in
connection
therewith)
to
the
extent
actually
caused
by
the
negligence
of
Contractor,
Contractor's
employees,
subcontractors
or
independent
contractors
except
for
any
such
claim
arising
out
of
the
negligence
or
willful
misconduct
of
the
City,
or
its
officers,
agents,
employees
or volunteers
.
b.
The
City
does
not,
and
shall
not,
waive
any
rights
that
it
may
have
against
Contractor
under
this
Section
because
of
the
acceptance
by
the
City,
or
the
deposit
• with
the
City,
of
any
insurance
policy
or
certificate
required
pursuant
to
this
Agreement.
The
hold
harmless,
indemnification
and
duty
to
defend
provisions
of
this
January 16, 2024, Item #5
Traffic
Signal
Controller
Upgrades
Citywide
Communication
Improvements
Section
shall
apply
regardless
of
whether
or
not
said
insurance
policies
are
determined
to
be
applicable
to
the
claim,
demand,
action,
damage,
liability,
loss,
cost
or
expense
described
herein.
18. Any
amendments
to
any
of
the
Contract
Documents,
including
but
not
limited
to
Contract
Change
Orders,
must
be
in
writing
executed
by
the
Contractor
and
the
City.
Any
time
an
approval,
time
extension,
or
consent
of
the
City
is
required
under
the
Contract
Documents,
such
approval,
extension,
or
consent
must
be
in
writing
in
order
to
be
effective.
19 .
The
Contract
Documents
contain
all
of
the
agreements
and
understandings
of
the
parties
and
all
previous
understandings,
negotiations,
and
contracts
are
integrated
into
and
superseded
by
this
Contract.
20. In
the
event
that
any
one
or
more
of
the
phrases,
sentences,
clauses,
paragraphs,
or
sections
contained
in
this
Contract
shall
be
declared
invalid
or unenforceable
by
a
valid
judgment
or
decree
of
a
court
of
competent
jurisdiction,
such
invalidity
or
unenforceability
shall
not
affect
any
of
the
remaining
phrases,
sentences,
clauses,
paragraphs,
or
sections
of
this
Contract
which
are
hereby
declared
as
severable
and
shall
be
interpreted
to
carry
out
the
intent
of
the
parties
hereunder.
21. The
persons
executing
this
Contract
on
behalf
of
the
parties
hereto
warrant
that
they
are
duly
authorized
to
execute
this
Contract
on
behalf
of
said
parties
and
that,
by
so
executing
this
Contract,
the
parties
hereto
are
formally
bound
to
the
provisions
of
this
Contract.
22. This
Contract
shall
be
binding
upon
and
shall
inure
to
the
benefit
of
the
parties
hereto
and
their
respective
heirs,
personal
representatives,
successors,
and
assigns.
23. In
performing
its
obligations
and
duties
under
this
Contract,
each
party
shall
comply
with
all
applicable
local,
state,
and
federal
laws,
regulations,
rules,
standards
and
ordinances.
24 .
This
Contract
may
be
executed
by
the
parties
in
counterparts,
which
counterparts
shall
be
construed
together
and
have
the
same
effect
as
if
all
of
the
parties
had
executed
the
same
instrument.
25 .
After
completion
of
the
work
contemplated
by
this
Contract
, Contractor
shall
file
with
the
City
Manager
an
affidavit
stating
that
all
workers
and
persons
employed,
all
firms
supplying
materials,
and
all
subcontractors
upon
the
project
have
been
paid
in
full,
and
that
there
are
no
claims
outstanding
against
the
project
for
either
labor
or
materials,
except
certain
items,
if
any,
to
be
set
forth
in
an
affidavit
covering
disputed
claims
or
items
in
connection
with
a
Stop
Notice
that
has
been
filed
under
the
provision
of
the
laws
of
the
State
of
California.
26 .
All
work
shall
be
subject
to
inspection
and
testing
by
City
and
its
authorized
representatives
during
manufacture
and
construction
and
all
other
times
and
places,
including,
without
limitation,
the
plans
of
Contractor
and
any
of
its
suppliers.
Contractor
shall
provide
all
reasonable
facilities
and
assistance
for
the
safety
and
9 of
27 January 16, 2024, Item #5
Traffic Signal Controller Upgrades Citywide Communication Improvements convenience of inspectors. All inspections and tests shall be performed in such manner as to not unduly delay the work. The Work shall be subject to final inspection and acceptance notwithstanding any payments or other prior inspections. Such final inspection shall be made within a reasonable time after completion of the work.
27. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the Contract, Contractor shall immediately give notice thereof, including all relevant information with respect thereto, to City.
28. Contractor agrees to contact the appropriate regional notification center in accordance with Government Code Section 4216.2.
29. Contractor shall submit its detailed plan for worker protection during the excavation of trenches required by the scope of the work in accordance with Labor Code Section 6705.
30. a. Contractor shall, without disturbing the condition, notify City, in writing, as 10 of 27
soon as Contractor, or any of Contractor's subcontractors, agents, or employees have knowledge and reporting is possible, of the discovery of any of the following conditions:
i. The presence of any material that Contractor believes is hazardous waste, as defined in Section 25117 of the Health and Safety Code;
ii. Subsurface or latent physical conditions at the site differing from those indicated in the specifications; or
iii. Unknown physical conditions at the site of any unusual nature, different materially for those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.
b. Pending a determination by City of appropriate action to be taken, Contractor shall provide security measures (e.g., fences) adequate to prevent the hazardous waste or physical conditions from causing bodily injury to any person. c. City shall promptly investigate the reported conditions. If City, through and in the exercise of its sole discretion, determines that the conditions do materially differ or do involve hazardous waste, and will cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, then City shall issue a change order.
d. In the event of a dispute between City and Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date and shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights that pertain to the resolution of disputes and protests between the parties.
January 16, 2024, Item #5
Traffic Signal Controller Upgrades Citywide Communication Improvements
31. This Contract is to be governed by the laws of the State of California.
32. All work shall be guaranteed for a period of one (1) year from the date of acceptance by the City. Contractor shall promptly make all needed repairs arising out of. defective materials, workmanship, and equipment.
City is hereby authorized to make such repairs if within ten (10) days after giving written notice to Contractor, or its agent, Contractor should fail to make or undertake with due diligence the aforesaid repairs; provided, however, that in case of an emergency, where, in the opinion of City, delay would cause serious loss or damage, repairs may be made without notice being sent to Contractor, and Contractor shall pay the costs thereof. (Remainder of page intentionally left blank)
11 of 27
January 16, 2024, Item #5
Traffic Signal Controller Upgrades Citywide Communication Improvements IN WITNESS WHEREOF, the said Contractor and the City Manager, City Clerk and City Attorney have caused the names of said parties to be affixed hereto, the day and year first above written.
Contractor's Name: •
Print Name of Construction Company
By:
Signature
Print Name
Contractor information:
Address for Notices and Payments
Telephone Number: ______ _
Email:
ATTEST:
Carrie Gallagher, CMG, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Alan Fenstermacher, City Attorney
12 of 27
CITY OF POWAY
a Municipal Corporation
Chris Hazeltine, City Manager
January 16, 2024, Item #5
City of Poway
STANDARD AGREEMENT FOR SERVICES
This Agreement, entered into this 17th day of January, 2024, by and between the CITY OF POWAY (hereinafter referred to as "City") and STC TRAFFIC, INC., {hereinafter referred to as "Consultant").
RECITALS
WHEREAS, City desires to obtain the services of a private consultant to perform design services for the Traffic Signal Controller Upgrades -Citywide Communication Improvements Project (Project);
WHEREAS, Consultant is a civil engineering consultant and has represented that Consultant possesses the necessary qualifications to provide such services; and WHEREAS, City has authorized the preparation of an agreement to retain the services of Consultant as hereinafter set forth.
NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONSUL TANT ON THE FOLLOWING TERMS AND CONDITIONS:
1. Scope of Services.
Consultant shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
2. Compensation and Reimbursement.
City shall compensate and reimburse Consultant as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
3. Term of Agreement.
The term of this Agreement shall be as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
4. Termination.
This Agreement may be terminated with or without cause by City. Termination without cause shall be effective only upon 60-day written notice to Consultant. During said 60- day period Consultant shall perform all consulting services in accordance with this Agreement.
This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Consultant in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City.
Termination for cause shall be effected by delivery of written notice of termination to Consultant.
Such termination shall be effective upon delivery of said notice. 13 of 27 1
ATTACHMENT B
January 16, 2024, Item #5
5. Confidential
Relationship.
City
may
from
time
to
time
communicate
to
Consultant
certain
information
to
enable
Consultant
to
effectively
perform
the
services.
Consultant
shall
treat
all
such
information
as
confidential,
whether
or
not
so
identified,
and
shall
not
disclose
any
part
thereof
without
the
prior
written
consent
of
the
City.
Consultant
shall
limit
the
use
and
circulation
of
such
information,
even
within
its
own
organization,
to
the
extent
necessary
to
perform
the
services.
The
foregoing
obligation
of
this
Paragraph
5,
however,
shall
not
apply
to
any
part
of
the
information
that
(i)
has
been
disclosed
in
publicly
available
sources
of
information;
(ii)
is,
through
no
fault
of
Consultant,
hereafter
disclosed
in
publicly
available
sources
of
information;
(iii)
is
now
in
the
possession
of
Consultant
without
any
obligation
of
confidentiality;
or
(iv)
has
been
or
is
hereafter
rightfully
disclosed
to
Consultant
by
a
third
party,
but
only
to
the
extent
that
the
use
or
disclosure
thereof
has
been
or
is
rightfully
authorized
by
that
third
party.
Consultant
shall
not
disclose
any
reports,
recommendations,
conclusions
or
other
results
of
the
services
or
the
existence
of
the
subject
matter
of
this
contract
without
the
prior
written
consent
of
the
City.
In
its
performance
hereunder,
Consultant
shall
comply
with
all
legal
obligations
it
may
now
or
hereafter
have
respecting
the
information
or
other
property
of
any
other
person,
firm
or
corporation.
6. Office
Space
and
Clerical
Support.
Consultant
shall
provide
its
own
office
space
and
clerical
support
at
its
sole
cost
and
expense.
7. Covenant
Against
Contingent
Fees.
Consultant
declares
that
it has
not
employed
or
retained
any
company
or
person,
other
than
a
bona
fide
employee
working
for
Consultant,
to
solicit
or
secure
this
Agreement,
that
it
has
not
paid
or
agreed
to
pay
any
company
or
person,
other
than
a
bona
fide
employee,
any
fee,
commission,
percentage,
brokerage
fee,
gift
or
any
other
consideration,
contingent
upon
or
resulting
from
the
award
or
making
of
the
Agreement. For
breach
of
violation
of
this
warranty,
City
shall
have
the
right
to
annul
this
Agreement
without
liability,
or,
at
its
sole
discretion,
to
deduct
from
the
Agreement
price
or
consideration,
or
otherwise
recover
the
full
amount
of
such
fee,
commission,
percentage,
brokerage
fee,
gift
or
contingent
fee.
8. Ownership
of
Documents.
All
memoranda,
reports,
plans,
specifications,
maps
and
other
documents
prepared
or
obtained
under
the
terms
of
this
Agreement
shall
be
the
property
of
City
and
shall
be
delivered
to
City
by
Consultant
upon
demand.
9. Conflict
of
Interest
and
Political
Reform
Act
Obligations.
During
the
term
of
this
Agreement
Consultant
shall
not
act
as
consultant
or
perform
services
of
any
kind
for
any
person
or
entity
whose
interests
conflict
in
any
way
with
those
of
the
City
of
Poway.
Consultant
shall
at
all
times
comply
with
the
terms
of
the
Political
Reform
Act
and
the
local
conflict
of
interest
code.
Consultant
shall
immediately
disqualify
itself
and
shall
not
use
its
official
position
to
influence
in
any
way
any
matter
coming
before
the
City
in
which
the
Consultant
has
a
financial
interest
as
defined
in
Government
Code
Section
87103.
Consultant
represents
that
it
has
no
knowledge
of
any
financial
interests
which
would
require
it
to
disqualify
itself
from
any
matter
on
which
it might
perform
services
for
the
City.
14 of
27 2
January 16, 2024, Item #5
"Consultant" means an individual who, pursuant to a contract with a state or local agency:
(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract;
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or
(B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code.
DISCLOSURE DETERMINATION:
~ 1. Consultant/Contractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above.
No disclosure required.
D 2. Consultant/Contractor will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, Consultant/Contractor shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law.
Robert J. Manis, Director of Development Services
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void.
11. Maintenance of Records.
Consultant shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the contract period and for three 15 of 27 3
January 16, 2024, Item #5
(3)
years
from
the
date
of
final
payment
under
this
Agreement,
for
inspection
by
City
and
copies
thereof
shall
be
furnished,
if requested.
12. Independent
Contractor.
At
all
times
during
the
term
of
this
Agreement,
Consultant
shall
be
an
independent
contractor
and
shall
not
be
an
employee
of
the
City
of
Poway.
City
shall
have
the
right
to
control
Consultant
only
insofar
as
the
results
of
Consultant's
services
rendered
pursuant
to
this
Agreement;
however,
City
shall
not
have
the
right
to
control
the
means
by
which
Consultant
accomplishes
such
services.
13. Licenses,
Permits,
Etc.
Consultant
represents
and
declares
to
City
that
it
has
all
licenses,
permits,
qualifications,
and
approvals
of
whatever
nature
that
are
legally
required
to
practice
its
profession.
Consultant
represents
and
warrants
to
City
that
Consultant
shall,
at
its
sole
cost
and
expense,
keep
in
effect
at
all
times
during
the
term
of
this
Agreement,
any
license,
permit,
or
approval
which
is
legally
required
for
Consultant
to
practice
its
profession.
14. Consultant's
Insurance.
Consultant
shall
provide
insurance
as
set
forth
in
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
15. Indemnification.
(a)
For
Claims
(as
defined
herein)
other
than
those
alleged
to
arise
from
Consultant's
negligent
performance
of
professional
services,
City
and
its
respective
elected
and
appointed
boards,
officials,
officers,
agents,
employees
and
volunteers
(individually
and
collectively,
"lndemnitees")
shall
have
no
liability
to
Consultant
or
any
other
person
for,
and
Consultant
shall
indemnify,
protect
and
hold
harmless
lndemnitees
from
and
against,
any
and
all
liabilities,
claims,
actions,
causes
of
action,
proceedings,
suits,
damages,
judgments,
liens,
levies,
costs
and
expenses,
including
reasonable
attorneys'
fees
and
disbursements
(collectively
"Claims"),
which
lndemnitees
may
suffer
or
incur
or
to
which
lndemnitees
may
become
subject
by
reason
of
or
arising
out
of
any
injury to
or
death
of
any
person(s),
damage
to
property,
loss
of
use
of
property,
economic
loss
or
otherwise
occurring
as
a
result
of
Consultant's
negligent
performance
under
this
Agreement,
or
by
the
negligent
or
willful
acts
or
omissions
of
Consultant,
its
agents,
officers,
directors,
sub-consultants
or
employees.
(b)
For
Claims
alleged
to
arise
from
Consultant's
negligent
performance
of
professional
services,
lndemnitees
shall
have
no
liability
to
Consultant
or
any
other
person
for,
and
Consultant
shall
indemnify
and
hold
harmless
lndemnitees
from
and
against,
any
and
all
Claims
that
lndemnitees
may
suffer
or
incur
or
to
which
lndemnitees
may
become
subject
by
reason
of
or
arising
out
of
any
injury
to
or
death
of
any
person(s),
damage
to
property,
loss
of
use
of
property,
economic
loss
or
otherwise
to
the
extent
occurring
as
a
result
of
Consultant's
negligent performance
of
any
professional
services
under
this
Agreement,
or
by
the
negligent
or
willful
acts
or
omissions
of
Consultant,
its
agents,
officers,
directors,
sub-consultants
or
employees,
committed
in
performing
any
of
professional
services
under
this
Agreement.
For
Claims
alleged
to
arise
from
Consultant's
professional
services,
Consultant's
defense
obligation
to
lndemnitees
shall
include
only
the
reimbursement
of
reasonable
defense
costs
and
attorneys'
fees
to
the
extent
caused
by
Consultant's
negligence.
16 of
27 4
January 16, 2024, Item #5
(c)
The
foregoing
obligations
of
Consultant
shall
not
apply
to
the
extent
that
the
Claims
arise
from
the
sole
negligence
or
willful
misconduct
of
City
or
its
elected
and
appointed
boards,
officials,
officers,
agents,
employees
and
volunteers.
(d)
In
any
and
all
Claims
against
City
by
any
employees
of
the
Consultant,
anyone
directly
or
indirectly
employed
by
it
or
anyone
for
whose
acts
it
may
be
liable,
the
indemnification
obligation
under
this
Section
15 shall
not
be
limited
in
any
way
by
any
limitation
on
the
amount
or
type
of
damages,
compensation
or
benefits
payable
by
or
for
the
Consultant
under
worker's
compensation
acts,
disability
benefit
acts
or
other
employee
benefit
acts.
(e)
Consultant
shall,
upon
receipt
of
written
notice
of
any
Claim,
promptly
take
all
action
necessary
to
make
a
claim
under
any
applicable
insurance policy
or
policies
Consultant
is
carrying
and
maintaining;
however,
if
Consultant
fails
to
take
such
action
as
is
necessary
to
make
a
claim
under
any
such
insurance
policy,
Consultant
shall
reimburse
City
for
any
and
all
costs,
charges,
expenses,
damages
and
liabilities
incurred
by
City
in
making
any
claim
on
behalf
of
Consultant
under
any
insurance
policy
or
policies
required
pursuant
to
this
Agreement.
(f)
The
obligations
described
in
Section
15(a)
through
(e)
above
shall
not
be
construed
to
negate,
abridge
or
otherwise
reduce
any
other
right
or
obligation
of
indemnity
which
would
otherwise
exist
as
to
any
party
or
person
indemnified
pursuant
to
this
Section
15. (g)
The
rights
and
obligations
of
the
parties
described
in
this
Section
15 shall
survive
the
termination
of
this
Agreement.
16. Assumption
of
Risk.
Except
for
injuries
to
persons
caused
by
the
willful
misconduct
of
any
lndemnitee
and
not
covered
by
insurance
maintained,
or
required
by
this
Agreement
to
be
maintained,
by
Consultant:
(a)
Consultant
hereby
assumes
the
risk
of
any
and
all
injury
and
damage
to
the
personnel
(including
death)
and
property
of
Consultant
that
occurs
in
the
course
of,
or
in
connection
with,
the
performance
of
Consultant's
obligations
under
this
Agreement,
including
but
not
limited
to
Consultant's
Scope
of
Services;
and
(b)
it
is
hereby
agreed
that
the
lndemnitees
are
not
to
be
liable
for
injury
or
damage
which
may
be
sustained
by
the
person,
goods
or
property
of
Consultant
or
its
employees
in
connection
with
Consultant's
performance
its
obligations
under
this
Agreement,
including
but
not
limited
to
Consultant's
Scope
of
Services.
17. Consultant
Not
an
Agent.
Except
as
City
may
specify
in
writing
,
Consultant
shall
have
no
authority,
expressed
or
implied,
to
act
on
behalf
of
City
in
any
capacity
whatsoever
as
an
agent.
Consultant
shall
have
no
authority,
expressed
or
implied,
pursuant
to
this
Agreement
to
bind
City
to
any
obligation whatsoever.
18. Personnel. Consultant
shall
assign
qualified
and
certified
personnel
to
perform
requested
services.
The
City
shall
have
the
right
to
review
and
disapprove
personnel
for
assignment
to
Poway
projects.
City
shall
have
the
unrestricted
right
to
order
the
removal
of
any
person(s)
assigned
by
Consultant
by
giving
oral
or
written
notice
to
Consultant
to
such
effect.
17 of
27 5
January 16, 2024, Item #5
Consultant's
personnel
shall
at
all
times
comply
with
City's
drug
and
alcohol
policies
then
in
effect.
19. Notices. Notices
shall
be
given
as
described
on
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
20. Governing
Law,
Forum
Selection
and
Attorneys'
Fees.
This
Agreement
shall
be
governed
by,
and
construed
in
accordance
with,
the
laws
of
the
State
of
California.
Each
party
to
this
Agreement
consents
to
personal
jurisdiction
in
San
Diego
County,
California,
and
hereby
authorizes
and
accepts
service
of
process
sufficient
for
personal
jurisdiction
by
first
class
mail,
registered
or
certified,
postage
prepaid,
to
its
address
for
giving
notice
as
set
forth
in
Exhibit
"A"
hereto.
Any
action
to
enforce
or
interpret
the
terms
or
conditions
of
this
Agreement
shall
be
brought
in
the
Superior
Court
in
San
Diego
County,
Central
Division,
unless
the
parties
mutually
agree
to
submit
their
dispute
to
arbitration.
Consultant
hereby
waives
any
right
to
remove
any
such
action
from
San
Diego
County
as
is
otherwise
permitted
by
California
Code
of
Civil
Procedure
section
394.
The
prevailing
party
in
any
such
action
or
proceeding
shall
be
entitled
to
recover
all
of
its
reasonable
litigation
expenses,
including
its
expert
fees,
attorneys'
fees,
courts
costs,
arbitration
costs,
and
any
other
fees.
Notwithstanding
the
foregoing,
in
the
event
that
the
subject
of
such
an
action
is
compensation
claimed
by
Consultant
in
the
event
of
termination,
Consultant's
damages
shall
be
limited
to
compensation
for
the
60-day
period
for
which
Consultant
would
have
been
entitled
to
receive
compensation
if terminated
without
cause,
and
neither
party
shall
be
entitled
to
recover
their
litigation
expenses.
21. Gender. Whether
referred
to
in
the
masculine,
feminine,
or
as
"it,"
"Consultant"
shall
mean
the
individual
or
corporate
consultant
and
any
and
all
employees
of
consultant
providing
services
hereunder. 22.
Counterparts. This
Agreement
(and
any
amendments)
may
be
executed
in
multiple
counterpa,rts,
each
of
which
shall
be
deemed
an
original,
but
all
of
which,
together,
shall
constitute
one
and
the
same
instrument.
Documents
delivered
by
telephonic
facsimile
transmission
shall
be
valid
and
binding.
23. Entire
Agreement.
This
Agreement
shall
constitute
the
entire
understanding
between
Consultant
and
City
relating
to
the
terms
and
conditions
of
the
services
to
be
performed
by
Consultant.
No
agreements,
representations
or
promises
made
by
either
party,
whether
oral
or
in
writing,
shall
be
of
any
force
or
effect
unless
it is
in
writing
and
executed
by
the
party
to
be
bound
thereby.
24. Certification
and
Indemnification
Regarding
Public
Employees'
Retirement
Law/Pension
Reform
Act
of
2013.
Contractor
hereby
certifies
that
all
persons
providing
services
to
City
by
Contractor
are
not
current
members
of
the
California
Public
Employees'
Retirement
System
(Cal
PERS)
and
shall
not
become
members
of
CalPERS
while
providing
services
to
City.
18 of
27 6
January 16, 2024, Item #5
Contractor further provides that in the event Contractor assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, Contractor hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Contractor to provide services to City has been misclassified.
25. Severability.
If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect.
(Remainder of page intentionally left blank)
19 of 27 7
January 16, 2024, Item #5
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written.
CITY OF POWAY
By: __________ _
Chris Hazeltine, City Manager
Date: ___________ _
ATTEST:
Carrie Gallagher, CMC, City Clerk
APPROVED AS TO FORM:
By: ____________ _
Alan Fenstermacher, City Attorney
20 of 27
STC TRAFFIC, INC.
By: ____________ _
Jason Stack, TE, PTOE, President
Date: ___________ _
8 January 16, 2024, Item #5
"SPECIAL
PROVISIONSn
EXHIBIT
"A"
A.
Scope
of
Services.
Consultant
agrees
to
perform
consulting
services
as
required
by
City,
which
shall
consist
of
the
design
services
further
described
in
the
Scope
of
Services
submitted
with
the
proposals
dated
December
6,
2023,
which
is
included
in
this
document
as
Attachment
1,
and
incorporated
by
reference,
as
if its
contents
were
fully
set
forth
herein.
Consultant
shall
provide
the
necessary
qualified
personnel
to
perform
the
services.
B.
Compensation
and
Reimbursement.
City
shall
pay
Consultant
a
fee
in
accordance
with
the
Fee
Proposals
submitted
with
the
proposals
dated
December
6,
2023,
which
are
included
in
this
document
as
Attachment
1. Total
fee
is
not
to
exceed
Sixty~Seven
Thousand
Nine
Hundred
Dollars
($67,900).
Consultant's
fee
shall
include
and
Consultant
shall
be
responsible
for
the
payment
of
all
federal,
state,
and
local
taxes
of
any
kind
which
are
attributable
to
the
compensation
received.
In
addition
to
said
consulting
fee,
Consultant
shall
be
reimbursed
for
all
reasonable
expenses,
including
lodging,
telephone,
and
travel
(air,
auto,
rail)
necessarily
incurred
in
performance
of
the
services.
Consultant
shall
bill
City
for
such
expenses
as
incurred,
referencing
this
Agreement.
All
expenses
shall
be
itemized
and
supported
by
receipts
for
amounts
in
excess
of
Twenty-Five
Dollars
($25.00).
Statements
for
reimbursement
of
expenses
shall
be
paid
within
ten
(10)
days
of
approval
by
City.
All
air
travel
shall
be
billed
at
coach
or
special
fare
rates.
Reimbursement
for
lodging
is
limited
to
travel
from
outside
of
San
Diego
County
. Consultant
shall
receive
prior
authorization
for
air
travel
and
lodging
expenses.
All
other
expenses
shall
be
reimbursed
in
accordance
with
City's
cash
disbursement
policies
in
effect
at
the
time
incurred. C.
Term
of
Agreement.
This
Agreement
shall
commence
and
be
effective
as
of
January
17,
2024
("Effective
Date"),
and
shall
automatically
terminate
upon
completion
of
the
Project,
as
determined
by
the
City
in
its
sole
discretion,
unless
sooner
terminated
by
City
as
provided
in
the
section
of
this
Agreement
entitled
"Termination."
Upon
the
termination
of
this
Agreement,
Consultant
shall
return
to
City
any
and
all
equipment,
documents
or
materials
and
all
copies
made
thereof
which
Consultant
received
from
City
or
produced
for
City
for
the
purposes
of
this
Agreement.
D.
Consultant's
Insurance.
1. Coverages: Consultant
shall
obtain
and
maintain
during
the
life
of
this
Agreement
all
of
the
following
insurance
coverages:
(a)
Comprehensive
General
Liability.
including
premises-operations,
products/completed,
broad
form
property
damage
, and
blanket
contractual
liability
with
the
21 of
27 1
January 16, 2024, Item #5
following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate.
(b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit.
(c) Consultant shall obtain and maintain, during the life of the Agreement, a policy of Professional Errors and Omissions Liability Insurance with policy limits of not less than $1,000,000 combined single limits, per claim and annual aggregate. (d) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance.
2. Endorsements:
Endorsements shall be obtained so that each policy contains the following three provisions:
(a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage.
"The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
3. Insurance Certificates:
Consultant shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the following addresses:
To City:
To Consultant:
22 of 27 2
City of Poway -Development Services
13325 Civic Center Drive
Poway, CA 92064
STC Traffic, Inc.
5865 Avenida Encinas, Suite 142-B
Carlsbad, CA 92008
January 16, 2024, Item #5
Attachment
1-
---
----~
December
6,
2023
Alex
Ubaldo
Principal
Civil
Engineer
City
of
Poway
13325
Civic
Center
Drive
RE
: Citywide
Traffic
Signal
Timing
Conversions
Dear
Mr
. Ubaldo,
STC
Traffic
is
pleased
to
provide
the
City
of
Poway
with
the
following
proposal
for
signal
timing
conversions
for
(43)
traffic
signal
locations
associated
with
the
forthcoming
Citywide
Communication
Improvements
project.
Scope
includes
the following:
Task
1:
Signal
Timing
Conversions
(43
Locations)
•
Extract existing
signal
timing
from
each
controller
and
document.
•
Convert
existing
timing
to
latest
version
of
Omni
controller
software.
•
Bench
test
converted
timing
.
•
Provide
digital
and
hard
copies
of
signal
timing
for
review
.
Task
2:
Turn-On
Support
(8
Days)
STC
will
accompany
the
project
contractor
for
traffic
signal
controller
installations
and
provide
support
.
STC
will
upload
timing
and
observe
functionality
to
ensure
proper
operation.
Controller
installs
and
wiring
to
be
performed
by
project
contractor.
Turn-on
support
will
be
billed
at
a
daily
rate
as
the
duration
of
work
is
subject
to
the
contractor's
schedule.
STC
assumes
no
more
than
(8)
days
of
turn-on
support
will
be
required
at
a of
$1,500
per
day.
Exclusions: The
following
items
are
excluded
from
the
scope
but
are
available
via
an
approved
amendment:
•
Base
timing
standardization
•
MUTCD
compliance
check
Fee: Following
is
a
breakdown
of
scope
of
work
and
fee
estimates:
Task
Scope
of
Work
Sub
Total
1 Signal
Timing
Conversions
(46
Locations)
$55,900
2 Turn-On
Support
(8
Days)
12,000
TOTAL:
$67,900
STC
Traffic
will
perform
these
services
for
an
estimated
fee
of
$67,900
and
includes
mileage
and
expendable
supplies
such
as
reproduction.
Our
services
also
include
meetings
and
general
project
management
and
administration.
By
signing
below
and
returning
a
copy
of
this
letter,
you
will
have
authorized
STC
to
proceed
. I appreciate
the
opportunity
to
provide
these
services
to
the
City
of
Poway.
If
you
have
any
questions
regarding
the
scope
of
work
or
fee,
please
contact
me,
(714)
315-4640
.
23 of
27 STC
Traffic,
Inc.
5973
Avenida
Encinas,
Suite
218
Carlsbad,
CA
92008
www.stctraffic.com
January 16, 2024, Item #5
Sincerely,
Jason Stack, TE, PTOE
President
24 of 27
Accepted by:
Signature
Print Name
Date
2 January 16, 2024, Item #5
EXHIBIT "B"
Cal Gov Code§ 7522.56
Deering's California Codes are current through all 1016 chapters of the 2018 Regular Session and the November 6, 2018 Ballot Measures.
Deering's California Codes Annotated> GOVERNMENT CODE> Title I General> Division 7 Miscellaneous > Chapter 21 Public Pension and Retirement Plans > Article 4 California Public Employees' Pension Reform Act o/2013
§ 7522.56. Provisions applicable to person receiving pension benefit from public retirement system; Section supersedes conflicting provisions (a)This section shall apply to any person who is receiving a pension benefit from a public retirement system and shall supersede any other provision in conflict with this section. (b) A retired person shall not serve, be employed by, or be employed through a contract directly by, a public employer in the same public retirement system from which the retiree receives the benefit without reinstatement from retirement, except as permitted by this section.
(c) A person who retires from a public employer may serve without reinstatement from retirement or loss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired person has skills needed to perform work of limited duration.
( d)Appointments of the person authorized under this section shall not exceed a total for all employers in that public retirement system of 960 hours or other equivalent limit, in a calendar or fiscal year, depending on the administrator of the system. The rate of pay for the employment shall not be less than the minimum, nor exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate. A retired person whose employment without reinstatement is authorized by this section shall acquire no service credit or retirement rights under this section with respect to the employment unless he or she reinstates from retirement. (e)
25 of 27
(!)Notwithstanding subdivision (c), any retired person shall not be eligible to serve or be employed by a public employer if, during the 12-month period prior to an appointment described in this section, the retired person received any unemployment insurance compensation arising out of prior employment subject to this section with 1 January 16, 2024, Item #5
Cal
Gov
Code
§ 7522.56
a public
employer.
A
retiree
shall
certify
in
writing
to
the
employer
upon
accepting
an
offer
of
employment
that
he
or
she
is
in
compliance
with
this
requirement.
(2)A
retired
person
who
accepts
an
appointment
after
receiving
unemployment
insurance
compensation
as
described
in
this
subdivision
shall
terminate
that
employment
on
the
last
day
of
the
current
pay
period
and
shall
not
be
eligible
for
reappointment
subject
to
this
section
for
a
period
of
12 months
following
the
last
day
of
employment.
(t)A
retired
person
shall
not
be
eligible
to
be
employed
pursuant
to
this
section
for
a
period
of
180
days
following
the
date
of
retirement
unless
he
or
she
meets
one
of
the
following
conditions:
26 of
27 (l)The
employer
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a critically
needed
position
before
180
days
have
passed
and
the
appointment
has
been
approved
by
the
governing
body
of
the
employer
in
a public
meeting.
The
appointment
may
not
be
placed
on
a consent
calendar.
(2)
(A)Except
as
otherwise
provided
in
this
paragraph,
for
state
employees,
the
state
employer
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a critically
needed
state
employment
position
before
180
days
have
passed
and
the
appointment has
been
approved
by
the
Department
of
Human
Resources.
The
department
may
establish
a process
to
delegate
appointing
authority
to
individual
state
agencies,
but
shall
audit
the
process
to
determine
if
abuses
of
the
system
occur.
If
necessary,
the
department
may
assume
an
agency's
appointing
authority
for
retired
workers
and
may
charge
the
department
an
appropriate
amount
for
administering
that
authority.
(B)For
legislative
employees,
the
Senate
Committee
on
Rules
or
the
Assembly
Rules
Committee
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a
critically
needed
position
before
180
days
have
passed
and
approves
the
appointment
in
a
public
meeting.
The
appointment may
not
be
placed
on
a consent
calendar.
(C)For
employees
of
the
California
State
University,
the
Trustees
of
the
California
State
University
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a critically
needed
position
before
180
days
have
passed
and
approves
the
appointment
in
a public
meeting.
The
appointment
may
not
be
placed
on
a consent
calendar.
(3)The
retiree
is
eligible
to
participate
in
the
Faculty
Early
Retirement
Program
pursuant
to
a
collective
bargaining
agreement
with
the
California
State
University
that
existed
prior
to
January
1,
2013,
or
has
been
included
in
subsequent
agreements
.
2 January 16, 2024, Item #5
Cal
Gov
Code
§ 7522.56
( 4)The
retiree
is
a public
safety
officer
or
firefighter
hired
to
perform
a function
or
functions
regularly
performed
by
a public
safety
officer
or
firefighter.
(g)A
retired
person
who
accepted
a
retirement
incentive
upon
retirement
shall
not
be
eligible
to
be
employed
pursuant
to
this
section
for
a period
of
180
days
following
the
date
ofretirement
and
subdivision
(f)
shall
not
apply.
(h)This
section
shall
not
apply
to
a person
who
is
retired
from
the
State
Teachers'
Retirement
System,
and
who
is
subject
to
Section
24214,
24214.5
or
26812
of
the
Education
Code
.
(i)This
section
shall
not
apply
to
(1)
a subordinate
judicial
officer
whose
position,
upon
retirement,
is
converted
to
a judgeship
pursuant
to
Section
69615,
and
he
or
she
returns
to
work
in
the
converted
position,
and
the
employer
is
a trial
court,
or
(2)
a retiree
of
the
Judges'
Retirement
System
or
the
Judges'
Retirement
System
II
who
is
assigned
to
.serve
in
a
court
pursuant
to
Section
68543.5.
History Added
Stats
2012
ch
296
§
15 (AB
340),
effective
January
1,
2013
. Amended
Stats
2013
ch
528
§ II
(SB
13).
effective
October
4,
2013
(ch
528
prevails);
ch
76 § 75
(AB
383),
effective
January
1,
2013;
Stats
2014
ch
238
§ 1 (AB
2476).
effective
January
1,
2015.
Annotations Notes
Amendments: Note-
Amendments: 2013
Amendment:
Substituted
(1)
"have
passed"
for
"has
passed"
in
the
first
sentence
of
subds
(f)(l)
and
(f)(2);
(2)
"or
firefighter
hired
to
perform
a
function
or
functions
regularly
performed
by
a public
safety
officer
or
firefighter"
for
"of
firefighter"
in
subd
(f)(4);
and
(3)
"Judges'
Retirement
System"
for
"Judges'
Retirement
System
I"
in
subd (i).
27 of
27 3
January 16, 2024, Item #6
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AG EN DA REPORT City of Poway
CITY COUNCIL
January 16, 2024
Honorable Mayor and Members of the City Co~il
Eric Heidemann, Director of Public Works 4, y
Will Wiley, Assistant Director of Public Works for Maintenance Operation_ (858) 668-4705 or [email protected]
Award of Agreement to Agricultural Pest Control Services, Inc., for As-Needed Pest Control Maintenance Services; RFP No. 24-010
A Request for Proposals (RFP) for As-Needed Pest Control Maintenance Services, RFP No. 24-010, was duly advertised on November 9 and November 16, 2023. Seven (7) responsive proposals were received and opened on November 27, 2023. Staff reviewed the proposals submitted and selected Agricultural Pest Control Services, Inc., as the company providing the best value for pest control maintenance services to the City of Poway (City). Staff determined Agricultural Pest Control Services, Inc., to be responsive and qualified to provide these services. The term of the Agreement is for two (2) years beginning on January 17, 2024, through December 31, 2025, with three (3) one-year term extensions.
Recommended Action:
It is recommended the City Council award the agreement for As-Needed Pest Control Maintenance Services; RFP No. 24-010, to Agricultural Pest Control Services, Inc., and authorize the City Manager to execute all necessary documents associated with the agreement.
Discussion:
The City has a continuing need for as-needed pest control maintenance services at facilities throughout the city. The City wishes to enter into an agreement with a company that is proactive in their approach to work and can meet or exceed the qualifications set forth in this proposal package.
On November 9 and November 16, 2023, staff duly advertised an RFP for as-needed pest control maintenance services. The RFP was advertised on the online bid portal, and in the local newspaper.
This agreement is intended to provide all contractually required monthly pest control services, both interior and exterior of the buildings, at 49 sites throughout the City, including two (2) facilities for the Housing Authority to be utilized on an as-needed basis, as directed by staff. Other pest control services include as-needed monthly gopher and squirrel control inspections and as-needed bee, wasp, and hornet control throughout the City. Seven (7) proposals were received. A cost summary of the 1 of25
January 16, 2024, Item #6
proposals received is provided in Table 1 below. Provided in Table 2 is a cost summary of the as needed hourly rates per line of service.
Table 1: As-Needed Pest Control Maintenance Services Annual Cost Summary Critter Gitters
Pest Master Agricultural Cartwright Pest Payne Pest
Services, Pest Control Termite and Management Advanced Management LP. Srvs, Inc. Pest Control Inc. 1PM Orkin* Inc.*
Monthly
Total $717.25 $774.00 $850.00 $2,093.00 $3,495.25 $3,982.00 $6,975.00 Annual
Total $8,607.00 $9,288.00 $10,200.00 $25,116.00 $41,943.00 $55,229.00* $122,500.00* Table 2: As-Needed Hourly (Regular) Pest Control Services Cost Summary Pest Critter Gitters
Master Agricultural Cartwright Pest Payne Pest
Services, Pest Control Termite and Management Advanced Management LP. Srvs, Inc. Pest Control Inc. 1PM Orkin Inc.
As-Needed
Hourly Pest
Control $60.70 $85.00 $60.00 $54.00 $295.00 $112.50 $125.00 As-Needed
Gopher and
Squirrel
Control $60.70 $85.00 $60.00 $95.00 $295.00 $112.50 $300.00 As-Needed
Bee, Wasps,
Hornets
Control $60.70 $85.00 $75.00 $225.00 $295.00 $112.50 $300.00 Evaluation criteria for the proposals included overall experience and duration of experience, technical expertise, work force coverage capacity, references, cost of service, Cal/OSHA safety program compliance and technical training programs. During evaluation of cost of service, it was determined two proposers, identified with an asterisk in Table 1 above, submitted mathematical errors in their monthly and annual total submissions, resulting in disqualification. Based on the submitted proposal and prior experience with Agricultural Pest Control Services, Inc., the City has confidence they will provide the required service and respond quickly to pest control maintenance services and requests.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
Sufficient funds are available in the Fiscal Year 2023-24 operating budgets of Park, Trail and Landscape Maintenance account, 414040-41200; Facilities Maintenance account, 415010-41200; and Housing Authority Fund account, 309030-41200.
Public Notification:
None.
2 of25
January 16, 2024, Item #6
Attachments:
A. Standard Agreement
Reviewed/Approved By:
Assistant City Manager
3 of25
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
c~
City Manager
January 16, 2024, Item #6
City
of
Poway
STANDARD
AGREEMENT
FOR
SERVICES
This
Agreement,
entered
into
this
17th
day
of
January
2024,
by
and
between
the
CITY
OF
POWAY
(hereinafter
referred
to
as
"City")
and
AGRICULTURAL
PEST
CONTRL
SERVICES,
INC.,
(hereinafter
referred
to
as
"Contractor").
RECITALS
WHEREAS,
City
desires
to
obtain
the
services
of
a
private
Contractor
to
perform
As-Needed
Pest
Control
Maintenance
Services;
WHEREAS,
Contractor
has
represented
that
Contractor
possesses
the
necessary
qualifications
to
provide
such
services;
WHEREAS,
City
has
authorized
the
preparation
of
an
agreement
to
retain
the
services
of
Contractor
as
hereinafter
set
forth.
NOW,
THEREFORE,
IT
IS
MUTUALLY
AGREED
THAT
CITY
DOES
HEREBY
RETAIN
CONTRACTOR
ON
THE
FOLLOWING
TERMS
AND
CONDITIONS:
1. Scope
of
Services.
Contractor
shall
provide
services
as
described
in
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
2. Compensation
and
Reimbursement.
City
shall
compensate
and
reimburse
Contractor
as
provided
in
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
3. Term
of
Agreement.
The
term
of
this
Agreement
shall
be
as
described
in
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
4. Termination. This
Agreement
may
be
terminated
with
or
without
cause
by
City.
Termination
without
cause
shall
be
effective
only
upon
60-day
written
notice
to
Contractor.
During
said
60-day
period
Contractor
shall
perform
all
consulting
services
in
accordance
with
this
Agreement.
This
Agreement
may
be
terminated
by
City
for
cause
in
the
event
of
a
material
breach
of
this
Agreement,
misrepresentation
by
Contractor
in
connection
with
the
formation
of
this
Agreement
or
the
performance
of
services,
or
the
4 of25
ATTACHMENT
A
January 16, 2024, Item #6
failure to perform services as directed by City. Termination for cause shall be effected by delivery of written notice of termination to Contractor. Such termination shall be effective upon delivery of said notice.
5. Confidential Relationship.
City may from time to time communicate to Contractor certain information to enable Contractor to effectively perform the services. Contractor shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Contractor shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services. The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Contractor, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Contractor without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to Contractor by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.
Contractor shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this agreement without the prior written consent of the City. In its performance hereunder, Contractor shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation.
6. Office Space and Clerical Support.
Contractor shall provide its own office space and clerical support at its sole cost and expense.
7. Covenant Against Contingent Fees.
Contractor declares that it has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of the Agreement.
For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps, and other documents prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Contractor upon demand.
5 of25
January 16, 2024, Item #6
9. Conflict of Interest and Political Reform Act Obligations.
During the term of this Agreement Contractor shall not act as Contractor or perform services of any kind for any person or entity whose interest's conflict in any way with those of the City of Poway. Contractor shall, at all times, comply with the terms of the Political Reform Act and the local conflict of interest code. Contractor shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Contractor has a financial interest as defined in Government Code Section 87103. Contractor represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City.
"Contractor" means an individual who, pursuant to a contract with a state or local agency:
6 of25
(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar
authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract.
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code.
DISCLOSURE DETERMINATION:
~ 1. Contractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above.
No disclosure required.
January 16, 2024, Item #6
D
2. Contractor
will
be
"making
a
government
decision"
or
"serving
in
a
staff
capacity"
as
defined
in
Sections
A
and
B
above.
As
a
result
, Contractor
shall
be
required
to
file
a
Statement
of
Economic
Interest
with
the
City
Clerk
of
the
City
of
Poway
in
a timely
manner
as
required
by
law.
Department
Director
10. No
Assignments.
Neither
any
part
nor
all
of
this
Agreement
may
be
assigned
or
subcontracted,
except
as
otherwise specifically
provided
herein,
or
to
which
City,
in
its
sole
discretion,
consents
to
in
advance
thereof
in
writing.
Any
assignment
or
subcontracting
in
violation
of
this
provision
shall
be
void.
11. Maintenance
of
Records.
Contractor
shall
maintain
all
books,
documents,
papers,
employee
time
sheets,
accounting
records,
and
other
evidence
pertaining
to
costs
incurred
and
shall
make
such
materials
available
at
its
office
at
all
reasonable
times
during
the
agreement
period
and
for
three
(3)
years
from
the
date
of
final
payment
under
this
Agreement,
for
inspection
by
City
and
copies
thereof
shall
be
furnished,
if requested.
12. Independent
Contractor.
At
all
times
during
the
term
of
this
Agreement,
Contractor
shall
be
an
independent
contractor
and
shall
not
be
an
employee
of
the
City
of
Poway
. City
shall
have
the
right
to
control
Contractor
only
insofar
as
the
results
of
Contractor's
services
rendered
pursuant
to
this
Agreement;
however,
City
shall
not
have
the
right
to
control
the
means
by
which
Contractor
accomplishes
such
services.
13. Licenses,
Permits,
Etc.
Contractor
represents
and
declares
to
City
that
it
has
all
licenses,
permits
,
qualifications,
and
approvals
of
whatever
nature
that
are
legally
required
to
practice
its
profession.
Contractor
represents
and
warrants
to
City
that
Contractor
shall,
at
its
sole
cost
and
expense,
keep
in
effect
at
all
times
during
the
term
of
this
Agreement,
any
license, permit,
or
approval
which
is
legally
required
for
Contractor
to
practice
its
profession
.
14. Contractor's
Insurance.
Contractor
shall
provide
insurance
as
set
forth
in
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
7 of25
January 16, 2024, Item #6
15. Indemnification.
(a) For Claims (as defined herein) other than those alleged to arise from Contractor's negligent performance of professional services, City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Contractor or any other person for, and Contractor shall indemnify, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of Contractor's negligent performance under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-Contractors or employees.
(b) For Claims alleged to arise from Contractor's negligent performance of professional services, lndemnitees shall have no liability to Contractor or any other person for, and Contractor shall indemnify and hold harmless lndemnitees from and against, any and all Claims that lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise to the extent occurring as a result of Contractor's negligent performance of any professional services under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-Contractors or employees, committed in performing any of professional services under this Agreement. For Claims alleged to arise from Contractor's professional services, Contractor's defense obligation to lndemnitees shall include only the reimbursement of reasonable defense costs and attorneys' fees to the extent caused by Contractor's negligence.
(c) The foregoing obligations of Contractor shall not apply to the extent that the Claims arise from the sole negligence or willful misconduct of City or its elected and appointed boards, officials, officers, agents, employees and volunteers. (d) In any and all Claims against City by any employees of the Contractor, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this Section 15 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor under worker's compensation acts, disability benefit acts or other employee benefit acts.
(e) Contractor shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Contractor is carrying and maintaining; however, if Contractor fails to take such action as is necessary to make a claim under any such insurance policy, Contractor shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Contractor under any insurance policy or policies required pursuant to this Agreement.
8 of25
January 16, 2024, Item #6
(f)
The
obligations
described
in
Section
15(a)
through
(e)
above
shall
not
be
construed
to
negate,
abridge,
or
otherwise
reduce
any
other
right
or
obligation
of
indemnity
which
would
otherwise
exist
as
to
any
party
or
person
indemnified
pursuant
to
this
Section
15. (g)
The
rights
and
obligations
of
the
parties
described
in
this
Section
15 shall
survive
the
termination
of
this
Agreement.
16. Assumption
of
Risk.
Except
for
injuries
to
persons
caused
by
the
willful
misconduct
of
any
lndemnitee
and
not
covered
by
insurance
maintained,
or
required
by
this
Agreement
to
be
maintained,
by
Contractor:
(a)
Contractor
hereby
assumes
the
risk
of
any
and
all
injury
and
damage
to
the
personnel
(including
death)
and
property
of
Contractor
that
occurs
in
the
course
of,
or
in
connection
with,
the
performance
of
Contractor's
obligations
under
this
Agreement,
including
but
not
limited
to
Contractor's
Scope
of
Services;
and
(b)
it
is
hereby
agreed
that
the
lndemnitees
are
not
to
be
liable
for
injury
or
damage
which
may
be
sustained
by
the
person,
goods
or
property
of
Contractor
or
its
employees
in
connection
with
Contractor's
performance
its
obligations
under
this
Agreement,
including
but
not
limited
to
Contractor's
Scope
of
Services.
17. Contractor
Not
an
Agent.
Except
as
City
may
specify
in
writing,
Contractor
shall
have
no
authority,
expressed
or
implied,
to
act
on
behalf
of
City
in
any
capacity
whatsoever
as
an
agent.
Contractor
shall
have
no
authority,
expressed
or
implied,
pursuant
to
this
Agreement
to
bind
City
to
any
obligation
whatsoever.
18. Personnel. Contractor
shall
assign
qualified
and
certified
personnel
to
perform
requested
services.
The
City
shall
have
the
right
to
review
and
disapprove
personnel
for
assignment
to
Poway
projects.
City
shall
have
the
unrestricted
right
to
order
the
removal
of
any
person(s)
assigned
by
Contractor
by
giving
oral
or
written
notice
to
Contractor
to
such
effect.
Contractor's
personnel
shall
at all
times
comply
with
City's
drug
and
alcohol
policies
then
in
effect.
19. Notices. Notices
shall
be
given
as
described
on
Exhibit
"A"
entitled
"Special
Provisions"
attached
hereto
and
made
a
part
hereof.
9 of25
January 16, 2024, Item #6
20. Governing
Law.
Forum
Selection
and
Attorneys'
Fees.
This
Agreement
shall
be
governed
by,
and
construed
in
accordance
with,
the
laws
of
the
State
of
California.
Each
party
to
this
Agreement
consents
to
personal
jurisdiction
in
San
Diego
County,
California,
and
hereby
authorizes
and
accepts
service
of
process
sufficient
for
personal
jurisdiction
by
first
class
mail,
registered
or
certified,
postage
prepaid,
to
its
address
for
giving
notice
as
set
forth
in
Exhibit
"A"
hereto.
Any
action
to
enforce
or
interpret
the
terms
or
conditions
of
this
Agreement
shall
be
brought
in
the
Superior
Court
in
San
Diego
County,
Central
Division,
unless
the
parties
mutually
agree
to
submit
their
dispute
to
arbitration.
Contractor
hereby
waives
any
right
to
remove
any
such
action
from
San
Diego
County
as
is
otherwise
permitted
by
California
Code
of
Civil
Procedure
section
394.
The
prevailing
party
in
any
such
action
or
proceeding
shall
be
entitled
to
recover
all
of
its
reasonable
litigation
expenses,
including
its
expert
fees,
attorneys'
fees,
courts
costs,
arbitration
costs,
and
any
other
fees.
Notwithstanding
the
foregoing,
in
the
event
that
the
subject
of
such
an
action
is
compensation
claimed
by
Contractor
in
the
event
of
termination,
Contractor's
damages
shall
be
limited
to
compensation
for
the
60-day
period
for
which
Contractor
would
have
been
entitled
to
receive
compensation
if
terminated
without
cause,
and
neither
party
shall
be
entitled
to
recover
their
litigation
expenses.
21. Gender. Whether
referred
to
in
the
masculine,
feminine,
or
as
"it,"
"Contractor"
shall
mean
the
individual
or
corporate
Contractor
and
any
and
all
employees
of
Contractor
providing
services
hereunder.
22. Counterparts. This
Agreement
(and
any
amendments)
may
be
executed
in
multiple
counterparts,
each
of
which
shall
be
deemed
an
original,
but
all
of
which,
together,
shall
constitute
one
and
the
same
instrument.
Documents
delivered
by
telephonic
facsimile
transmission
shall
be
valid
and
binding.
23. Entire
Agreement.
This
Agreement
shall
constitute
the
entire
understanding
between
Contractor
and
City
relating
to
the
terms
and
conditions
of
the
services
to
be
performed
by
Contractor.
No
agreements,
representations
or
promises
made
by
either
party,
whether
oral
or
in
writing,
shall
be
of
any
force
or
effect
unless
it is
in
writing
and
executed
by
the
party
to
be
bound
thereby.
24 Certification
and
Indemnification
Regarding
Public
Employees'
Retirement
Law/Pension
Reform
Act
of
2013.
Contractor
hereby
certifies
that
all
persons
providing
services
to
City
by
Contractor
are
not
current
members
of
the
California
Public
Employees'
Retirement
System
(CalPERS)
and
shall
not
become
members
of
CalPERS
while
providing
services
to
City.
10 of
25 January 16, 2024, Item #6
Contractor
further
provides
that
in
the
event
Contractor
assigns
a
retired
annuitant
receiving
a
pension
benefit
from
CalPERS
to
perform
services
for
City,
the
retired
annuitant
is
in
full
compliance
with
Government
Code
section
7522.56.
A
copy
of
Government
Code
section
7522.56
is
attached
hereto
as
Exhibit
"B."
Further,
Contractor
hereby
fully
and
unconditionally
indemnifies
City
from
all
penalties,
fees,
employer
and
employee
contributions,
or
any
other
assessments
imposed
by
CalPERS
in
the
event
CalPERS
determines
the
person
assigned
by
Contractor
to
provide
services
to
City
has
been
misclassified
.
25. Severability. If
any
provision
of
this
Agreement
is
determined
by
any
court
of
competent
jurisdiction
or
arbitrator
to
be
invalid,
illegal,
or
unenforceable
to
any
extent,
that
provision
shall,
if possible,
be
construed
as
though
more
narrowly
drawn,
if a
narrower
construction
would
avoid
such
invalidity, illegality,
or
unenforceability
or,
if
that
is
not
possible,
such
provision
shall,
to
the
extent
of
such
invalidity,
illegality,
or
unenforceability,
be
severed,
and
the
remaining
provisions
of
this
Agreement
shall
remain
in
effect.
(Remainder
of
page
left
blank
intentionally)
11 of25
January 16, 2024, Item #6
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written.
CITY OF POWAY
By:-------,------
Chris Hazeltine, City Manager
Date: -----------
ATTEST:
By:-----------
Carrie Gallagher, City Clerk
APPROVED AS TO FORM:
By:-----------
Alan Fenstermacher, City Attorney
12 of25
AGRICULTURAL PEST CONTROL
SERVICES, INC.
By: __________ _
Matthew Oliver, President
Date: -----------
January 16, 2024, Item #6
"SPECIAL
PROVISIONS"
EXHIBIT
"A"
A.
Scope
of
Services.
The
Scope
of
Work
is
intended
to
cover
pest
control
maintenance
services
for
all
facilities
assigned
to
the
Contractor.
Pest
control
maintenance
services
for
City
facilities
will
include
(but
are
not
limited
to)
such
services
as:
1. Includes
all
types
of
rodents,
roaches,
ants,
silverfish,
and
other
insects.
2. Monthly
service
is
required
at
each
of
the
facilities
listed
in
the
Facilities
List.
3. Additional
application,
trap
installations,
or
rodent
removals,
when
necessary,
will
be
performed
within
24-hours
of
a
request
from
the
Public
Works
Administrative
Staff
or
the
Contract
Specialist/Inspector.
There
will
be
no
extra
charge
for
the
additional
service
calls
for
all
listed
facilities
on
the
monthly
service
contract.
4. The
Contractor
shall
provide
any
and
all
notification
and/or
posting
required
by
Federal,
State,
or
Local
laws,
rules,
or
regulations
as
an
included
part
of
the
Proposed
Cost
of
Service
chart.
5. All
work
will
be
performed
in
a safe
manner
and
in
accordance
with
the
most
modern
and
effective
scientific
pest
control
procedures.
6. The
Contractor
shall
furnish
the
Public
Works
Contract
Specialist/
Inspector
with
Safety
Data
Sheets
for
all
pesticides
used
in
conjunction
with
pest
control
activities.
7. Contractor
shall
furnish
Contract
Specialist/Inspector
with
monthly
schedule
of
services,
including
dates
and
times
of
inspection
and
treatment
of
all
facilities.
8. Upon
each
service
visit,
the
Service
technician
will
make
a
thorough
inspection
of
each
facility
and
shall
make
notations
as
described
in
this
section
.
9. Areas
of
active
infestation
will
be
noted
on
service
report.
10. Service
technicians
must
possess
a
Qualified
Applicators
Certificate
from
the
State
of
California
appropriate
to
these
maintenance
services
and
shall
perform
all
pesticide
or
bait
applications
under
this
agreement.
11 .
Any
and
all
needed
action
will
be
taken
to
render
complete,
preventative
,
and
corrective
insect,
rodent
or
other
animal
abatement
treatments
.
13 of25
10 January 16, 2024, Item #6
B.
Insects -Control Methods may include:
a. Application of liquid residual insecticides to cracks and crevices where pests breed.
b. Application of liquid residual insecticides as a spot treatment where pests are found.
c. Application of insecticide dusts to voids or concealed areas. d. Use of baits where necessary.
e. Application of liquid insecticides or repellents around trash cans, trash receptacles, trash dumpsters, and trash enclosures for flies or other nuisance insect infestations.
f. Submittal of Service and Inspection Reports and recommendations for preventative measures.
g. Removal of spiderwebs on exterior lights, corner of buildings, etc. h. Removal of nests on walls, eaves, etc.
Rodents or Other Animals -Control Methods may include:
a. Inspect facilities monthly for signs of rodent or other animal activity or infestation.
b. When rodent or other animal activity is found, control measures will be applied and increased in the areas of activity.
c. When rodent or other animal activity is found or suspected, tracking powder may be used in tracking powder stations or concealed voids. d. Snap traps (baited or with expanded trigger) may be used in areas where such traps will not present a hazard to customers and/or employees.
e. Glue stations shall be used in areas where a hazard to customers or employees may exist.
f. The Contractor shall check and maintain all traps and remove rodents from them on a weekly basis until seven days pass without evidence of rodent infestation.
g. Bait stations may be used in unoccupied storage facilities but shall not be used in occupied buildings.
h. The Contractor shall provide traps and materials at no extra cost to the City and shall maintain the increased activity until rodent activity is no longer evident.
i. Restricted material may be used with proper licensing and pre City approval.
Compensation and Reimbursement.
City shall pay Contractor a fee in accordance with the Fee Proposals submitted with the proposals dated November 27, 2023, which are included in this document as Attachment 1. Total fee is not to exceed $58,850 per year for as needed services not to exceed the City's adopted fiscal year operating budget for as-needed pest control maintenance services. Contractor's fee shall include, and Contractor shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received.
14 of 25
January 16, 2024, Item #6
In addition to said consulting fee, Contractor shall be reimbursed for all reasonable expenses, including lodging, telephone, and travel (air, auto, rail) necessarily incurred in performance of the services. Contractor shall bill City for such expenses as incurred, referencing this Agreement. All expenses shall be itemized and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00). Statements for reimbursement of expenses shall be paid within ten (10) days of approval by City. All air travel shall be billed at coach or special fare rates. Reimbursement for lodging is limited to travel from outside of San Diego County. Contractor shall receive prior authorization for air travel and lodging expenses. All other expenses shall be reimbursed in accordance with City's cash disbursement policies in effect at the time incurred.
C. Term of Agreement.
This Agreement shall be effective from the period commencing January 17, 2024, and ending December 31, 2025, unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." This Agreement may be extended for up to three (3) additional one-year periods upon approval in writing of the City Manager and Contractor. Award of the Agreement and any Agreement extensions are subject to City Council appropriation of funds. Each renewal period (fiscal) after the first year of the agreement, the Contractor's costs shall be adjusted based on the annual change in the previous calendar year's Consumer Price Index for the San Diego-Carlsbad area (All Urban Consumers CPI-U) or 5%, whichever is less. The first adjustment would occur no earlier than July 1, 2025. Upon expiration or termination of this Agreement, Contractor shall return to City any and all equipment, documents or materials and all copies made thereof which Contractor received from City or produced for City for the purposes of this Agreement.
D. Contractor's Insurance.
1. Coverages:
Contractor shall obtain and maintain during the life of this Agreement all of the following insurance coverages:
(a) Comprehensive General Liability, including premises- operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate. (b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit.
(c) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance.
15 of 25
January 16, 2024, Item #6
2. Endorsements:
Endorsements shall be obtained so that each policy contains the following three provisions:
(a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
(b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage.
"The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
3. Insurance Certificates:
Contractor shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the following addresses:
To City:
To Contractor:
16 of 25
City of Poway
P.O. Box 789
Poway, CA 92074
Agricultural Pest Control Services
9927 Maine Ave.
Lakeside, CA 92040
January 16, 2024, Item #6
Facility City
Hall
Council
Chambers
Public
Works
Admin
Building
Public
Works
Operations
Buildinq
Public Works
Fleet
Maintenance
Public
Works
Vehicle
Storage/
Facility
Shop
Lake
Poway
Admin
Building
Lake
Poway
Concession
Stand
Lake
Poway
Boat
Dock
Lake
Poway
Pavilion
Lake
Poway
Entrance
Booth
Lake
Poway
Crew
Facility
Lake
Poway
Staging
Area
Lake
Poway
Lower
Ball
Field
Restrooms
Lake
Poway
Middle
Restrooms
Lake
Poway
Upper
Restrooms
Poway
Community
Swim
Center
Admin
Poway
Community
Swim
Center
Pool
Filter
House
Poway
Community
Swim
Center
Lifeguard
Building
17 of
25 ATTACHMENT
1 FEE
SCHEDULE
Address
Annual Service Events
13325
Civic
12 Center
Dr.
13325
Civic
12 Center
Dr.
14467
Lake
12 Poway
Rd.
14467
Lake
12 Poway
Rd
.
14415
Lake
12 Poway
Rd.
14445
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd.
14656
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd
14644
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd.
14644
Lake
12 Poway
Rd.
13094
Civic
12 Center
Dr.
13094
Civic
12 Center
Dr.
13094
Civic
12 Center
Dr.
Monthly
Annual
Service
Fee
Fee $40
.00
$480
.00
$25.00
$300.00
$25.00
$300.00
$40.00
$480.00
$11.00
$132.00
$11.00
$132.00
$53
.00
$636.00
$5.00
$60.00
$5.00
$60
.00
$5.00
$60.00
$5.00
$60.00
$5.00
$60.00
$5.00
$60.00
$5.00
$60.00
$5.00
$60.00
$5.00
$60.00
$15.00
$180.00
$5.00
$60.00
$11.00
$132.00
January 16, 2024, Item #6
Mickey
Cafagna
Community
13094
Civic
12 $15.00
$180.00
Center
Building
Center
Dr.
Mickey
Cafagna
Community
13094
Civic
12 $5.00
$60.00
Center
Ball
Field
Restrooms
Center
Dr.
Mickey
Cafagna
Community
13094
Civic
12 $5.00
$60.00
Center
Skate
Park
Center
Dr.
Community
Park
Staging
13094
Civic
12 $5.00
$60.00
Area
Center
Dr.
Old
Poway
Park
14122
12 $10.00
$120.00
Museum/Hamburger
Factorv
Midland
Rd.
Old
Poway
Park
Train
Barn
14154
12 $10.00
$120.00
Midland
Rd.
Old
Poway
Park
Train
Depot
14134
12 $10.00
$120.00
Midland
Rd.
Old
Poway
Park
Templars
14134
12 $10.00
$120.00
Hall
Midland
Rd.
Old
Poway
Park
Porter
14134
12 $10.00
$120.00
House
Midland
Rd.
Old
Poway
Park
Nelson
14128
12 $10.00
$120.00
House
Midland
Rd.
Water
Treatment
Plant
14521
Lake
12 $25.00
$300.00
Admin
Buildinq
Poway
Rd.
Water
Treatment
Plant
14521
Lake
12 $5.00
$60.00
Chlorine/Chemical
Building
Poway
Rd.
Water
Treatment
Plant
Filter
14521
Lake
12 $5.00
$60.00
Control
Building
Poway
Rd.
Water
Treatment
Plant
14521
Lake
12 $5.00
$60.00
Camelback
Pump
Station
Poway
Rd.
Water
Treatment
Plant
14521
Lake
12 $18.00
$216.00
Treatment/Ammonia
Poway
Rd.
Buildinq
Material
Handling
Yard
12325
12 $25.00
$300.00
Hazardous
Waste
Building
Crosthwaite
Cir.
Material
Handling
Yard
12325
12 $5.00
$60.00
Lounge
Trailer
Crosthwaite
Cir.
Meadowbrook
Gymnasium
1230
12 $35.00
$420.00
Meadowbrook
Ln.
Twin
Peaks
Gymnasium
14640
Tierra
12 $35.00
$420.00
Bonita
Rd.
Fire
Station
1 13050
12 $18
.00
$216.00
Community
Rd.
Fire
Station
2 16914
12 $18.00
$216.00
Wrestlinq
Ct.
18 of
25 January 16, 2024, Item #6
Fire Station 3 14322 12 $18.00 $216.00
' Pomerado
:~ ' Rd.
Performing Arts Center :.~ 15498 Espola 12 $48.00 $576.00 Rd.
Aubrey Park Restroom and 13540 Aubrey 12 $5.00 $60.00
Building St.
Aubrey Park Staging Area 13564 Aubrey 12 $25.00 $300.00 St.
Poway Library 13137 Poway 12 $48.00 $576.00
Rd.
Kumeyaay lpai Interpretative 13104 lpai 12 $35.00 $420.00 Services Waaypuk
Trail.
Silverset Park Restroom 14795 12 $5.00 $60.00
Silverset St.
Starridge Park Restroom 13745 12 $5.00 $60.00
Carriage Rd.
Arbolitos Park Restroom 14401 12 $5.00 $60.00
Pomerado
Rd.
Garden Road Park 14901 12 $5.00 $60.00
Restroom Garden Rd.
Hilleary Park Restroom 13500 12 $5.00 $60.00
Community
Rd.
Valle Verde Park Restroom 16899 St. 12 $5.00 $60.00
Andrews Dr.
Total $774.00 $9,288.00
19 of 25
January 16, 2024, Item #6
As-Needed Hourly Pest Control
Service Type: Pest Control Mon.-Fri. (Regular Work Overtime Hours, Location: City-owned Hours 7:00 A.M. to 4:30 Weekends
properties (not on Proposal P.M.) and Holidays
Table 1) and/or Poway
Housinq Authority properties
One (1) Service Technician, $85.00 $125.00
One (1) Vehicle
As-Needed Hourly Gopher and Squirrel Control
Service Type: Gopher and Mon.-Fri. (Regular Work Overtime Hours, Squirrel Control Hours 7:00 A.M. to 4:30 Weekends
Location: City-owned P.M.) and Holidays
properties and/or Poway
Housing Authority
properties
One (1) Service $85.00 $125.00
Technician, One (1)
Vehicle
As-Needed Hourly Bees, Wasps, Hornets Control
Service Type: Pest Control Mon.-Fri. (Regular Work Overtime Hours, Location: City-owned Hours 7:00 A.M. to 4:30 Weekends
properties and/or Poway P.M.) and Holidays
Housing Authority properties
One (1) Service Technician, $85.00 $125.00
One (1) Vehicle
(Remainder of page intentionally left blank)
20 of 25
January 16, 2024, Item #6
EXHIBIT
"B"
Cal
Gov
Code§
7522.56
Deering's
California
Codes
are
current
through
all
1016
chapters
of
the
2018
Regular
Session
and
the
November
6,
2018
Ballot
Measures.
Deering's
California
Codes
Annotated>
GOVERNMENT
CODE>
Title
1 General>
Division
7 Miscellaneous
>
Chapter
21 Public
Pension
and
Retirement
Plans
> Article
4 California Public
Employees'
Pension
Reform
Act
o/2013
§
7522.56.
Provisions
applicable
to
person
receiving
pension
benefit
from
public
retirement
system;
Section
supersedes
conflicting
provisions
(a)This
section
shall
apply
to
any
person
who
is
receiving
a
pension
benefit
from
a
public
retirement
system
and
shall
supersede
any
other
provision
in
conflict
with
this
section.
(a)
A
retired
person
shall
not serve,
be
employed
by,
or
be
employed
through
a
contract
directly
by,
a
public
employer
in
the
same
public
retirement
system
from
which
the
retiree
receives
the
benefit
without
reinstatement
from
retirement,
except
as
permitted
by
this
section.
(b)
A
person
who
retires
from
a
public
employer
may
serve
without
reinstatement
from
retirement
or loss
or
interruption
of
benefits
provided
by
the
retirement
system
upon
appointment
by
the
appointing
power
of
a
public
employer
either
during
an
emergency
to
prevent stoppage
of
public
business
or
because
the
retired
person
has
skills
needed
to
perform
work
of
limited
duration.
(d
) Appointments
of
the
person
authorized
under
this
section
shall
not
exceed
a
total
for
all
employers
in
that
public
retirement
system
of
960
hours
or
other
equivalent
limit,
in
a
calendar
or
fiscal
year,
depending
on
the
administrator
of
the
system.
The
rate
of
pay
for
the
employment
shall
not
be
less
than
the
minimum,
nor
exceed
the
maximum,
paid
by
the
employer
to
other
employees
performing
comparable
duties,
divided
by
173.333
to
equal
an
hourly
rate.
A
retired
person
whose
employment
without
reinstatement
is
authorized
by
this
section
shall
acquire
no
service
credit
or
retirement
rights
under
this
section
with
respect
to
the
employment
unless
he
or
she
reinstates
from
retirement.
(e)
21 of25
(1
)Notwithstanding
subdivision
(c),
any
retired
person
shall
not
be
eligible
to
serve
or
be
employed
by
a
public
employer
if,
during
the
12-month
period
prior
to
an
appointment
described
in
this
section,
the
retired
person
received
January 16, 2024, Item #6
any
unemployment
insurance
compensation
arising
out
of
prior
employment
subject
to
this
section
with
a
public
employer
. A
retiree
shall
certify
in
writing
to
the
employer
upon
accepting
an
offer
of
employment
that
he
or
she
is
in
compliance
with
this
requirement. (2)A
retired
person
who
accepts
an
appointment
after
receiving
unemployment
insurance
compensation
as
described
in
this
subdivision
shall
terminate
that
employment
on
the
last
day
of
the
current
pay
period
and
shall
not
be
eligible
for
reappointment
subject
to
this
section
for
a
period
of
12 months
following
the
last
day
of
employment.
(f)A
retired
person
shall
not
be
eligible
to
be
employed
pursuant
to
this
section
for
a
period
of
180
days
following
the
date
of
retirement
unless
he
or
she
meets
one
of
the
following
conditions:
22 of
25 (1
)The
employer
certifies
the
nature
of
the
employment
and
that
the
appointment is
necessary
to
fill
a
critically
needed
position
before
180
days
have
passed
and
the
appointment
has
been
approved
by
the
governing
body
of
the
employer
in
a
public
meeting.
The
appointment
may
not
be
placed
on
a
consent
calendar.
(2)
(A)Except
as
otherwise
provided
in
this
paragraph,
for
state
employees,
the
state
employer
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a
critically
needed
state
employment
position
before
180
days
have
passed
and
the
appointment
has
been
approved
by
the
Department
of
Human
Resources.
The
department
may
establish
a
process
to
delegate
appointing
authority
to
individual
state
agencies,
but
shall
audit
the
process
to
determine
if abuses
of
the
system
occur.
If
necessary,
the
department
may
assume
an
agency's
appointing
authority
for retired
workers
and
may
charge
the
department
an
appropriate
amount
for
administering
that
authority.
(B)For
legislative
employees,
the
Senate
Committee
on
Rules
or
the
Assembly
Rules
Committee
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a
critically
needed
position
before
180
days
have
passed
and
approves
the
appointment
in
a
public
meeting.
The
appointment
may
not
be
placed
on
a
consent
calendar.
(C)For
employees
of
the
California
State
University,
the
Trustees
of
the
.
California
State
University
certifies
the
nature
of
the
employment
and
that
the
appointment
is
necessary
to
fill
a
critically
needed
position
before
180
days
have
passed
and
approves
the
appointment
in
a
public
meeting.
The
appointment
may
not
be
placed
on
a
consent
calendar.
January 16, 2024, Item #6
(3)The
retiree
is
eligible
to
participate
in
the
Faculty
Early Retirement
Program
pursuant
to
a
collective
bargaining
agreement
with
the
California
State
University
that
existed
prior
to
January
1,
2013,
or
has
been
included
in
subsequent
agreements.
(4)The
retiree
is
a
public
safety
officer
or
firefighter
hired
to
perform
a
function
or
functions
regularly
performed
by
a
public
safety officer
or
firefighter.
(g)A
retired
person
who
accepted
a
retirement
incentive
upon
retirement
shall
not
be
eligible
to
be
employed
pursuant
to
this
section
for
a
period
of
180
days
following
the
date
of
retirement
and
subdivision
(f)
shall
not
apply.
(h)This
section
shall
not
apply
to
a
person
who
is
retired
from
the
State
Teachers'
Retirement
System,
and
who
is
subject
to
Section
24214.
24214.5
or
26812
o{the
Education
Code.
(i)This
section
shall
not
apply
to
(1)
a
subordinate
judicial
officer
whose
position,
upon
retirement,
is
converted
to
a
judgeship
pursuant
to
Section
69615,
and
he
or
she
returns
to
work
in
the
converted
position,
and
the
employer
is
a
trial
court,
or
(2)
a
retiree
of
the
Judges'
Retirement
System
or
the
Judges'
Retirement
System
II who
is
assigned
to
serve
in
a
court
pursuant
to
Section
68543
.5.
History Added
Stats
2012
ch
296
§ 15
(AB
340).
effective
January
1. 2013.
Amended
Stats
2013
.ch
528
§ 11
(SB
13),
effective
October
4,
2013
(ch
528
prevails);
ch
76 § 75
(AB
383),
effective
January
1. 2013;
Stats
2014
ch
238
§ 1 (AB
2476).
effective
January
1. 2015
.
Annotations Notes Amendments: 2013
Amendment:
Substituted
(1)
"have
passed"
for
"has
passed"
in
the
first
sentence
of
subds
(f)(I)
and
(f)(2);
(2)
"or
firefighter
hired
to
perform
a function
or
functions
regularly
performed
by
a
public
safety
officer
or
firefighter"
for
"of
firefighter"
in
subd
(f)(4);
and
(3)
"Judges'
Retirement
System"
for
"Judges'
Retirement
System
I"
in
subd
(i).
23 of25
January 16, 2024, Item #6
GUARANTY
To the City of Poway, City Council, for:
AS-NEEDED PEST CONTROL MAINTENANCE SERVICES
The undersigned guarantees the work included in this project(s).
Should any of the materials or equipment prove defective or should the work as a whole prove defective, due to faulty workmanship, material furnished or methods of installation, or should the work or any part thereof fail to operate properly as originally intended and in accordance with the Plans and Specifications, due to any of the above causes, all within the number of months the site is to be maintained after date on which this Contract is accepted by the City, or the date of recordation of Notice of Completion, whichever is the later, the undersigned agrees to reimburse the City upon demand, for its expenses incurred in restoring said work to the condition contemplated in said project, including the cost of any such equipment or materials replaced and the cost of removing and replacing any other work necessary to make such replacement or repairs, or upon demand by the City, to replace any such material and to repair said work completely without cost to the City so that said work will function successfully as originally contemplated.
The City shall have the unqualified option to make any needed replacements or repairs itself or to have such replacements or repairs done by the undersigned. In the event the City elects to have said work performed by the undersigned, the undersigned agrees that the repairs shall be made and such materials as are necessary shall be furnished and installed within a reasonable time after the receipt of demand from the City. If the undersigned shall fail or refuse to comply with his obligations under this guaranty, the City shall be entitled to all cost and expenses, including attorney's fees, reasonably incurred by reason of the said failure or refusal.
Contractor
Date
24 of 25
January 16, 2024, Item #6
WORKERS'
COMPENSATION
INSURANCE
CERTIFICATE
Pursuant
to
Section
1861
of
the
State
Labor
Code,
each
Contractor
to
whom
a
public
works
Contract
has
been
awarded
shall
sign
the
following
certificate
and
shall
submit
same
to
the
City
of
Poway
prior
to
performing
any
work
on
the
Contract:
"I
am
aware
of
the
provisions
of
Section
3700
of
the
Labor
Code
which
require
every
employer
to
be
insured
against
liability
for
Workers'
Compensation
or
to
undertake
self
insurance
in
accordance
with
the
provisions
of
that
Code,
and
I will
comply
with
such
provisions
before
commencing
the
performance
of
the
work
of
this
Contract."
Contractor By Title Date
Section
3700
of
the
State
Labor
Code
reads
in
part
as
follows:
"Every
employer
except
the
State
shall
secure
the
payment
of
compensation
in
one
or
more
of
the
following
ways:
(a)
By
being
insured
against
liability
to
pay
compensation
by
one
or
more
insurers
duly
authorized
to
write
compensation
insurance
in
this
state.
(b)
By
securing
from
the
Director
of
Industrial
Relations
a
certificate
of
consent
to
self
insure,
either
as
an
individual
employer,
or
as
one
employer
in
a
group
of
employers,
which
may
be
given
upon
furnishing
proof
satisfactory
to
the
Director
of
Industrial
Relations
of
ability
to
self-insure
and
to
pay
any
compensation
that
may
become
due
to
his
employees."
25 of25
January 16, 2024, Item #7
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PQ RT City of Poway
January 16, 2024
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
[email protected]
Alan Fenstermacher, City Attorney
[email protected]
CITY COUNCIL
Amendments to Chapters 17.08 and 17.56 of the Poway Municipal Code Regarding (1) Multifamily Development Requirements, (2) Batch Broadband (Wireless Communication Facility) Permit Applications
The City Attorney's Office, in conjunction with City staff, has been reviewing the Poway Municipal Code ("PMC") for needed updates, and has periodically brought proposed amendments to the City Council.
The proposed Ordinance (Attachment A) would amend the PMC to eliminate the swimming pool requirement for all multifamily developments in the City. The proposed ordinance would also ensure the City has the maximum possible control under state and federal law over wireless communication facilities installed in the City's right-of-way.
Recommended Action:
It is recommended the City Council introduce the attached Ordinance (Attachment A) for first reading.
If adopted, the Ordinance would amend the PMC to (1) eliminate the requirement for all multifamily developments in the City to include a swimming pool and (2) restrict batched broadband permit applications to the statutory minimum.
Discussion:
The first proposed amendment to the PMC impacts Chapter 17.08 (Residential Zones) and removes the existing requirement that all condominiums and apartment complexes in the City include a swimming pool, unless otherwise negotiated through development agreements. Due to both state water conservation restrictions, as well as rising insurance costs associated with maintaining pools at multifamily developments, City staff recommends it be up to individual property owners to determine whether or not a complex has a swimming pool for residents. If approved, this portion of the ordinance would be applicable to both existing complexes as well as future projects. Existing developments wanting to remove pools would need to go through the appropriate permit process, certain changes to pool areas would be subject to City Council approval. 1 of 19
January 16, 2024, Item #7
The second proposed amendment to the PMC relates to wireless communication facilities (WCFs), which are communication facilities (i.e. antenna and associated equipment) often placed on street lights and other support structures in the public right-of-way by private telecommunication companies. Pursuant to federal law, the City has limited ability to regulate qualified WCFs, but does to the maximum extent permitted pursuant to Chapter 17.56 of the PMC.
Effective January 1, 2024, Assembly Bill (AB) 965 was enacted by the State of California for the purpose of increasing access to internet broadband infrastructure. Among other things, AB 965 allows for "batch broadband permit processing" which it defines as "the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit." (Gov. Code § 65964.3(a)(1 )). The new bill also defines "broadband project," similarly to how the PMC currently defines a WCF.
Relevant here, AB 965 mandates that cities with populations of less than 50,000 allow for up to 25 broadband permit applications at one time. A larger city (population over 50,000) must process as many as 50 applications at one time. Based on Poway's 2020 census population number, the purpose of the proposed PMC amendment is to permit a maximum of 25 batched applications at one time, as without a local ordinance doing so, the City would be required to process a potentially unlimited number of batched permits at the same time. (See, Gov. Code. 65964.3(i)(2)).
Environmental Review:
The proposed Ordinance is not a "project" subject to California Environmental Quality Act (CEQA).
Fiscal Impact:
None.
Public Notification:
None.
Attachments:
A. Proposed Ordinance
Reviewed/Approved By:
Assistant City Manager
2 of 19
Reviewed By:
()L. ~
Alan Fenstermacher
City Attorney
chrisHazetirle
City Manager
January 16, 2024, Item #7
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, AMENDING CHAPTERS 17.08 AND
17.56 OF THE POWAY MUNICIPAL CODE TO (1) ELIMINATE
THE MULTIFAMILY SWIMMING POOL REQUIREMENT, AND (2)
LIMIT WIRELESS COMMUNICATION FACILITY BATCH
APPLICATIONS TO THE STATUTORY MINIMUM
WHEREAS, City staff and the City Attorney's Office have been progressively analyzing the Poway Municipal Code ("PMC") and recommending updates where appropriate; WHEREAS, the City Council of the City of Poway wishes to protect and preserve the quality of the residential and commercial areas of the City, as well as the quality of life throughout the City, through effective land use and planning;
WHEREAS, the City Council of the City of Poway has determined it is unnecessary to require all multifamily apartment and condominium complexes in the City to include a swimming pool;
WHEREAS, the City Council of the City of Poway desires to allow broadband access throughout the City;
WHEREAS, the City Council of the City of Poway is particularly concerned with the potential of batch applications for wireless communication facilities ("WCFs") to be submitted in a number higher than what can be processed by staff under statutory time constraints; WHEREAS, AB 965 "Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023" creates Government Code section 65964.3 subdivision (i)(2)(A) which requires a city with a population of fewer than 50,000 to batch at a minimum 25 project site applications; and
WHEREAS, the City desires to adhere to this statutory minimum, rather than allowing more than 25 project site applications at a time.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:
SECTION 1: The above recitations are true and correct.
SECTION 2: Section 17.08.220(G) of the PMC is hereby amended as follows, with additions in underline, and deletions in strikethrough:
G. The following recreation facilities shall be provided at a minimum unless waived by the City Council:
1. Landscaped park-like quiet area;
2. Children's play area; and
3. Family picnic area.:.; aoo
3 of 19 ATTACHMENT A
January 16, 2024, Item #7
Ordinance No.
4. SvJimming pool with cabana or patio cover.
SECTION 3: The Chapter 17.56 is hereby amended to Title 17 of the Poway Municipal Code to read as set forth on Exhibit 1 (clean) and Exhibit 2 (redline) hereto.
SECTION 4: The City Council finds that this Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to State CEQA Guidelines Section 15060(c)(2) and 15061 (b)(3) in that the proposed changes are not anticipated to result in a direct or reasonably foreseeable indirect physical change in the environment nor will they have the potential of creating a significant effect on the environment.
SECTION 5: If any provisions of this Ordinance or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
SECTION 6: This Ordinance shall be codified.
EFFECTIVE DATE: This Ordinance shall take effect and be in force 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 the 16th day of January, 2024, and thereafter.
II
II
II
II
II
II
II
II
II
II
II
II
II
4 of 19
January 16, 2024, Item #7
Ordinance No.
PASSED AND ADOPTED at a Regular Meeting of said City Council held the 6th day of February, 2024, by the following vote, to wit:
AYES:
NOES:
ABSTAINED:
ABSENT:
DISQUALIFIED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
5 of 19
January 16, 2024, Item #7
EXHIBIT 1
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
Sections:
17.56.010
17.56.020
17.56.030
17.56.040
17.56.050
17.56.060
17.56.070
17.56.080
17.56.090
17.56.100
17.56.110
17.56.120
17.56.130
Chapter 17.56
WIRELESS COMMUNICATION FACILITIES
Purpose.
Definitions.
Permits required.
Approval authority.
Appeal from Director decision.
Application requirements.
Findings.
Objective standards and operating conditions.
Objective siting requirements.
Large wireless communication facilities.
Preemption and severability.
Reservation ofrights to review permit.
Batch broadband permit processing
17.56.010 Purpose.
Page I of 7
This chapter establishes a wireless communication facility permit, and sets forth definitions, permitting requirements and application processes for wireless communication facilities within the public right-of-way in the City, including reasonable, uniform and objective aesthetic standards. (Ord. 829 § 2, 2019)
17.56.020 Definitions.
A. "Applicant" means the entity applying for the wireless communication facility permit, and any of its future lessees or assigns. Should the applicant later sell a wireless communication facility constructed pursuant to a permit issued under this chapter, the term "applicant" shall apply to that subsequent owner.
B. "Batch broadband permit processing" means the simultaneous processing of multiple broadband permit applications for substantially similar broadband sites under a single permit submitted at once.
C. "Broadband permit application" means an application or other documents submitted for review by a local agency to permit the construction of a broadband project.
D. "Broadband project" means a proposed wireless communication facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components, including, but not limited to, a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by the City.
E. "Director of Development Services" means the City's Director of Development Services, or his/her appointed designee.
F. "Existing support structure" means a structure, such as a street light, that is existing prior to the City's receipt of an application for a wireless communication facility permit, that will not have to be replaced or substantially modified to support the installation of a wireless communication facility. Notwithstanding the foregoing, in-kind replacement structures are considered existing support structures for the purposes of this chapter. Existing overhead utility poles or lines are not permitted existing support structures.
G. "In-kind replacement structure" means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed to support the other parts of the wireless communication facility, and is identical to the existing vertical infrastructure it replaces with respect to size, height, diameter, style, and exterior materials.
H. "Master communication site license agreement" means an agreement between the applicant and the City, approved by the City Council in accordance with Chapter 17.53 PMC, and all supporting and related documentation, including but not limited to insurance certificates and lease terms. Full cost recovery for staff time and direct costs 6 of 19
January 16, 2024, Item #7
Poway
Municipal
Code
Chapter
17 .56
WIRELESS
COMMUNICATION
FACILITIES
Page
2 of
7 associated
with
the
agreement
shall
be
part
of
a developer
deposit,
as
set
forth
in
the
City's
master
fee
schedule
, as
updated
and
amended
from
time
to
time.
I.
"New
support
structure"
means
a structure
that
is
constructed
solely
to
support
the
other
parts
of
the
wireless
communication
facility.
J.
"Presumptively
reasonable
time"
for
the
purposes
of
this
section
shall
mean
the
timeframe,
if
any
specified
by
applicable
law,
and
in
the
absence
of
such
law,
whatever
time
the
Planning
Division
deems
reasonable
to
process
the
broadband
permit
applications
.
K.
"Replacement
support
structure
" means
a new
structure
that replaces
existing
vertical
infrastructure
in
the
right-of-way
that
is
constructed
solely
to
support
the
other
parts
of
the
wireless
communication
facility,
except
for
in-kind
replacement
structures
.
L.
"Single wireless
communication
facility
application"
means
an
application
for
a single
wireless
communication
facility
at
a single
location
.
M
. "Street
light"
means
a light
illuminating
a road
, mounted
on
a tall
pole
and
within
the
public
right-of-way.
The
term
"street
light"
excludes
overhead
utility
poles
and
lines
.
N. "Simultaneous
" for
the
purposes
of
this
section
means
broadband
permit
applications
which
are
submitted
at
the
same
time
.
0. "Substantially
similar
broadband
project
sites"
means
broadband
project
sites
that
are
nearly
identical
in
terms
of
equipment
and
general
design,
but
not
location.
P. "Support
structure"
means
either
an
existing
support
structure
, new
support
structure
, or
replacement
support
structure,
which
are
all
considered
part
of
a wireless
communication
facility.
Q.
"Wireless communication
facility"
means
a facility
for
the
provision
of
wireless
communications
or
other
similar
utility
services,
and
all
antennas
and
equipment
associated
with
the
overall
facility
that
are
necessary
for
the
function
of
the
facility
, including
the
support
structure
. (Ord
. 829
§ 2,
2019)
17.56.030
Permits
required.
A.
Prior
to
the
construction
or
installation
of
any
wireless
communication
facility
in
the
public
right-of-way,
the
applicant
shall
obtain
a wireless
communication
facility
permit
pursuant
to
the
procedures,
requirements
and
restrictions
of
this
chapter
, in
addition
to
a review
for
structural
calculations
and
public
right-of-way
permit
application
pursuant
to
the
requirements
set
forth
in
PMC
12.04.030.
An
improvement
plan
and
inspection
is
required
for
a new
support
structure
or
a replacement
support
structure.
Approval
of
a master
communication
site
license
agreement
is
required
prior
to
approval
of
any
batch
wireless
communication
facility
application.
B. Pursuant
to
PMC
17 .52.050(A)
, any
wireless
communication
facility
that
includes
a surface
-mounted
cabinet
with
any
dimension
greater
than
36 inches,
or
where
more
than
one
cabinet
of
any
size
is
located
closer
than
I 00
feet
to
another
cabinet
of
any
size
, shall
also
obtain
a minor
development
review
permit
from
the
Director
of
Development
Services
, unless
the
cabinet(s) are
placed
underground
.
C. Nothing
in
this
chapter
affects
the
City's
authority
to
require
a conditional
use
permit
pursuant
to
Chapter
17.48 PMC
for
a proposed
wireless
communication
facility
outside
of
the
public
right-of-way
. (Ord.
829
§ 2,
2019)
17.56.040
Approval
authority.
The
Director
of
Development
Services
shall
be
the
approval
body
for
all
wireless
communication
facility
permits
.
(Ord
. 829
§ 2,
2019)
17.56.050
Appeal
from
Director
decision.
A.
Only
an
applicant
may
appeal
a decision
of
the
Director
of
Development
Services
regarding
a wireless
communication
facility
permit
request.
In
such
case,
the
appeal
shall
go
before
the
hearing
officer
for
review
and
action
in
accordance
with
the
appeal
procedures
set
forth
in
Chapter
2.20 PMC
.
7 of
19 January 16, 2024, Item #7
Poway
Municipal
Code
Page
3 of
7 Chapter
17 .56
WIRELESS
COMMUNICATION
FACILITIES
B.
A
decision
of
the
hearing
officer
under
Chapter
2.20 PMC
is
final.
(Ord
. 829
§ 2,
2019)
17.56.060
Application
requirements.
A.
Before
receiving
a wireless
communication
facility
permit,
the
applicant
must
submit
an
application
in
accordance
with
the
requirements
of
this
chapter.
B.
The
applicant
shall
comply
with
the
City's
"Guidelines
for
the
Placement
of
Utility
Facilities
in
the
Public
Rights-of-Way,"
as
may
be
amended
from
time
to
time
by
City
Council
resolution.
C.
Before
submitting
an
application,
all
applicants
are
advised
and
strongly
urged
to
participate
in
a wholly
voluntary
pre-application meeting
with
appropriate
staff,
scheduled
in
advance.
D.
All
applications
for
wireless
communication
facility
permits
shall
include
the
following
information:
1. A
completed
Planning
Division
general
application.
This
form
may
be
updated
by
the
Director
of
Development
Services
from
time
to
time,
in
his/her
reasonable
discretion.
At
a minimum,
the
following
application
materials
shall
be
required:
a.
A
draft
master
communication
site
license
agreement,
if
applicable.
b.
Detailed
plans,
including
a site
plan
and
elevation
plans,
showing
and
describing
the
layout
and
design
of
the
proposed
project,
including
a depiction
of
the
boundaries
of
the
site
on
which
the
project
will
be
developed
.
c.
Documentation
that
the
facility
will
comply
with
all
Federal
and
State
regulations
and
guidelines,
including,
where
applicable,
FCC
regulations
and
guidelines.
d.
Site
justification
letter(s)
justifying
the
need
or
requirement
for
the
proposed
location
and
design
of
the
wireless
communication
facility,
and
whether
or
not
co-location
of
additional
facilities
owned
by
different
carriers
is
feasible,
in
compliance
with
PMC
17.56.090.
The
letter
shall
include
other
sites
that
were
analyzed
but
not
selected,
with
an
explanation
as
to
why
the
analyzed
sites
did
not
meet
the
objectives
(including
engineering,
coverage
and
location
justification),
and
why
the
co-location
of
the
proposed
wireless
communication
facility
with
others
in
the
area
cannot
be
accomplished.
e.
A
utility
plan
showing
equipment
layout
and
utility
connections.
f.
A
report
specifying
the
facility's
compliance
with
the
FCC's
maximum
possible
exposure
(MPE)
levels
in
inhabited
areas
within
500
feet
of
the
facility
prepared
by
a qualified electrical
engineer
licensed
by
the
State
of
California.
Proof
of
compliance
shall
be
a certification
provided
by the
engineer
who
prepared
the
original
based
upon
measurements
after
the
facility
is
in
operation,
but
prior
to
City
final
engineering
inspection. g. Mechanical
engineering
specifications
of
the
facilities
specifying
maximum
noise
exposure
levels
of
the
facility
to
be
in
compliance
with
the
City's
noise
ordinance,
set
forth
in
Chapter
8.08 PMC
.
h.
Where
the
wireless
communication
facility
also
requires
a minor
development
review
permit
pursuant
to
PMC
17 .52.050,
the
application
shall
include
documents required
for
minor
development
reviews
and
applicable
fees
and
deposits.
2. Payment
of
all
deposits
or
fees
as
required
for
processing
of
the
associated
permits
as
outlined
in
the
City's
master
fee
schedule,
as
may
be
amended
from
time
to
time.
E.
The
applicant
shall
agree
in
writing
to
indemnify,
defend
and
hold
harmless
the
City,
its
designees,
employees,
and
assigns,
from
any and
all
liability
resulting
from
the
City's
approval
of
the
wireless
communication
facility,
the
operation
of
the
wireless
communication
facility,
and/or
the
City's
enforcement
of
this
chapter
as
it
relates
to
any
wireless
communication
facility
owned
and/or
operated
by
the
applicant.
8 of
19 January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
F. The applicant shall submit a security in accordance with Chapter 16.20 PMC in an amount to be determined by the City Engineer to cover the removal of the facility in the event the site becomes abandoned or is otherwise vacated by the applicant.
G. When submitting a batch broadband permit application, the applicant shall submit materials as specified in subsections (D)(l)(b) through (h) of this section for each facility that is not substantially similar as defined in Section 17 .56.020 subsection (0). A separate fee is required for each facility, as applicable. If some of the facilities require a minor development review permit and others do not, the City will process the facilities requiring minor development review each as a separate application.
H. In addition to all applicable requirements stated above, all batch broadband permit applications shall be required to adhere to all the requirements set forth in Section 17 .56.130.
17.56.070 Findings.
A. Prior to issuance of a wireless communication facility permit pursuant to this chapter, the following findings shall be made to the satisfaction of the Director of Development Services:
I. A complete application has been submitted to the satisfaction of the Development Services Director as required by this chapter.
2. The proposed wireless communication facility and applicant satisfies the requirements set forth in this chapter, specifically including PMC 17.56.080 and 17.56.090.
3. The proposed wireless communication facility satisfies the requirements set forth in the City's wireless communication policy, to the extent applicable, as may be amended by the City Council from time to time.
4. The proposed wireless communication facility is not detrimental to the public health, safety, or general welfare.
5. The proposed wireless communication facility is designed to match existing street infrastructure within the surrounding area, and conceals or minimizes visual impacts of the facilities.
6. Opportunities for co-location were maximized as a part of the project.
7. The proposed wireless communication facility is proposed to function in compliance with all applicable Federal, State and local regulations, including (where applicable) regulations of the Federal Communications Commission.
8. The applicant has paid all necessary City fees and deposits associated with the application, and the proposed wireless communication facility.
B. Where the Director of Development Services issues a wireless communication facility permit, the approval shall be conditioned on a requirement that the applicant comply with all of the standards, conditions and other requirements articulated in this chapter on an ongoing basis.
C. If the Director of Development Services, or on appeal, the hearing officer, cannot make the required findings, the approval authority shall deny the permit with a written explanation as to why any such finding could not be made. (Ord. 829 § 2, 2019)
17.56.080 Objective standards and operating conditions.
A. The support structure, including all added antennas, shall not be more than 50 feet in height or 10 percent taller than other adjacent vertical infrastructure. The wireless communication facility must not extend the height of an existing support structure by more than five feet.
B. The wireless communication facilities shall be architecturally integrated with support structures and screened from view to the largest extent feasible. The wireless communication facilities shall consist of the smallest, least visually intrusive antennas, components and other necessary equipment available. No portion ofa wireless communication facility placed on a street light shall be more than five feet above the light pole portion of the street 9 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
light. Each portion of the wireless communication facility shall be designed at a diameter proportionately similar to, and no more than three times diameter of, the existing support structure. Associated equipment shall not be ground mounted, but instead, placed underground, unless the Director of Development Services determines that no other feasible alternative exists based on clear and convincing evidence provided by the applicant.
C. Antennas and equipment shall be painted to match the color of the surface of the support structure to which they are attached unless determined otherwise by the Director of Development Services.
D. No portion ofa wireless communication facility is permitted to obstruct the view of any traffic sign, way-finding sign, traffic signal, or similar facility, nor be located within the sight triangle as shown in PMC 17.22.100.
E. The fire hydrant port that runs perpendicular to the street center line must remain unobstructed.
F. The wireless communication facility must not be designed in such a way that it requires antenna structure registration under Part 17 of Title 47 of the Code of Federal Regulations.
G. Each facility shall include emergency contact information visible from the sidewalk with the wireless carrier, the frequency band, a single point of contact in the applicant's engineering and maintenance departments (name, phone number, fax number, and email address), and a 24-hour phone number to which interference problems may be reported.
H. The antennas shall be activated and energized upon preliminary approval of the wireless communication facility by the Director of Development Services to allow for proof of compliance certification provided by the engineer who prepared the original MPE report based upon measurements after the facility is in operation, but prior to the City's final engineering inspection.
I. All wireless communication facilities and related equipment and improvements shall be maintained in good repair.
Any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight.
J. The owner or operator of a wireless communication facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in the permit.
K. Any substantial modification, removal or relocation of a wireless communication facility shall require submittal, review, and approval of a wireless communication facility permit pursuant to this chapter to the satisfaction of the Director of Development Services.
L. The owner or operator of a wireless communication facility shall remove, at its sole responsibility and expense, all portions a wireless communication facility and restore the existing support structure to its original condition, subject to approval of the Director of Development Services, within 60 days of ceasing operation of the permitted wireless communication facility.
M. The owner or operator of a wireless communication facility shall be required to modify, remove, or relocate its facility, or portion thereof, without cost or expense to the City, within 60 days of the City's notice, if and when made necessary, in the City's discretion, by:
1. Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric, or other utility systems or pipes owned by the City or any other public agency;
2. Any abandonment of any street, sidewalk, or other public facility;
3. Any change of grade, alignment or width of any street, sidewalk, or other public facility; or
4. A determination by the Director of Development Services that the wireless communication facility has become a risk to public health, safety, welfare, or the public's use of the public right-of-way. 10 of 19
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Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
N. In the case of an emergency or other similar exigent circumstances where the facility poses a threat of bodily harm, death, or harm to real property, or otherwise creates a safety hazard, the City may modify, remove, or relocate a wireless communication facility without prior notice to the applicant provided the applicant is notified within 30 days thereafter. The City shall make a reasonable attempt to contact the applicant prior to such emergency removal. (Ord. 829 § 2, 2019)
17.56.090 Objective siting requirements.
A. In furtherance of the City's goals to underground existing utilities throughout the City, wireless communication facilities shall not be located on existing overhead utility poles or lines, as set forth in PMC 17.56.020(D).
B. The applicant must make all commercially reasonable efforts to co-locate wireless communication facilities on existing support structures that already support other wireless communication facilities. If such co-location is not feasible, the applicant must provide the documentation required by PMC 17.56.060(D). In the event co-location is not feasible, the applicant must design the wireless communication facility in such a way that co-location ofat least one additional wireless communication facility is feasible on the same support structure in the future.
C. The preferred support structure for all wireless communication facilities is existing street lights, or other qualified existing support structures. The applicant must make all commercially reasonable efforts to utilize a street light or other qualified existing support structure. If a new or replacement support structure is required, the applicant must provide the documentation required by PMC 17.56.060(D) demonstrating the same to the satisfaction of the Director of Development Services. Further, the applicant must explore and document the infeasibility of a replacement support structure before a wireless communication facility requiring a new support structure will be approved.
D. Required Setbacks for New Support Structures, Replacement Support Structures and Equipment and Accessory Structures Associated with a Wireless Communication Facility.
1. All portions of a wireless communication facility must be set back a minimum of 48 inches from any traffic signal facilities.
2. The setback for all portions of a wireless communication facility from any tree shall be a minimum of 48 inches, unless a qualified arborist can demonstrate to the satisfaction of the Director of Development Services that a lesser setback would not harm the tree.
3. A minimum of four feet of pedestrian clearance from any portion of a wireless communication facility, free of all obstacles for an unobstructed walkway, must be maintained at all times.
4. All portions of a wireless communication facility must be set back a minimum of seven feet from any fire hydrant, driveway, curb ramp or blue zone parking space.
5. Replacement support structures shall be located a maximum of five feet from the structure they replace.
However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, this distance can be expanded to no more than 10 feet.
6. All new support structures and replacement support structures shall provide the same setbacks as adjacent structures ofa similar style. However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, the setback can be modified, provided the facility otherwise complies with setback regulations set forth in this subsection D and all pertinent laws and regulations, including, but not limited to, the Americans with Disabilities Act.
7. Any new support structure must be located a minimum of 50 feet away from any residential structure, and shall not be located along the street frontage adjacent to any school, daycare center, recreational area or park.
New support structures may not be located within 75 feet of any pre-existing vertical infrastructure exceeding 10 feet in height or any preexisting wireless communication facility, as measured along a horizontal line between the closest points of the subject piece of infrastructure and closest portion of the proposed wireless communication facility. (Ord. 829 § 2, 2019)
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January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
17.56.100 Large wireless communication facilities.
The Director of Development Services may, in his or her discretion, impose additional requirements and restrictions on wireless communication facilities where the antenna exceeds three cubic feet in volume, where all other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, exceeds 28 cubic feet in volume, or otherwise do not meet the definition of "small wireless facility" set forth in applicable Federal regulations. (Ord. 829 § 2, 2019)
17.56.110 Preemption and severability.
Notwithstanding any other provision of this chapter to the contrary, an applicant may request an exemption to excuse it from having to comply with any portion of this chapter on the grounds that the requirement or action taken by the City would violate State or Federal law. The City shall grant the exemption or excuse an applicant from compliance with all or a portion of this chapter, if it finds based on substantial evidence in the record that the challenged requirement or action is, in fact, preempted by State or Federal law. Such an exemption shall not affect the enforceability of the remainder of this chapter. If any provision of this chapter is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this chapter, which shall be enforced to the fullest extent possible. (Ord. 829 § 2, 2019)
17.56.120 Reservation of rights to review permit.
The City reserves the right to reconsider the permit at the end of a 10-year time period from the date of the original permit approval. Reconsideration items to be reviewed may include, but are not limited to, conformance with all objective standards, availability of new technologies, conformance with the objective concealment standards imposed on the facility, operation of applicable radio frequency standards and regulations (as they may be amended from time to time), and compliance with Federal, State and local regulations, including the City's noise ordinance. (Ord. 829 § 2, 2019)
17.56.130 Batch Broadband Permit Processing
A. City Staff shall not accept for processing any batch broadband permit that contain over 25 separate wireless facilities.
B. City Staff will reject any permit in a batch application that is not substantially similar to the others in such application.
C. For each permit over one (1), the applicant shall file a separate amendment to the permit defining the location of the broadband project and what differences in design or construction exist between the additional broadband project and the original broadband project.
D. Applicant shall be notified of approval within a presumptively reasonable time or in a time mutually agreed upon by the City and the applicant, whichever is later.
12 of 19
January 16, 2024, Item #7
EXHIBIT 2
Poway Municipal Code
Chapter I 7.56 WIRELESS COMMUNICATION
FACILITIES
Sections:
17.56.010
17.56.020
17.56.030
17.56.040
17.56.050
17.56.060
17.56.070
17.56.080
17.56.090
17.56.100
17.56.110
17.56.120
17.56.130
Chapter 17.56
WIRELESS COMMUNICATION FACILITIES
Purpose.
Definitions.
Permits required.
Approval authority.
Appeal from Director decision.
Application requirements.
Findings.
Objective standards and operating conditions.
Objective siting requirements.
Large wireless communication facilities.
Preemption and severability.
Reservation ofrights to review permit.
Batch broadband permit processing
17.56.010 Purpose.
Page I of 7
This chapter establishes a wireless communication facility permit, and sets forth definitions, permitting requirements and application processes for wireless communication facilities within the public right-of-way in the City, including reasonable, uniform and objective aesthetic standards. (Ord. 829 § 2, 2019)
17.56.020 Definitions.
A. "Applicant" means the entity applying for the wireless communication facility permit, and any of its future lessees or assigns. Should the applicant later sell a wireless communication facility constructed pursuant to a permit issued under this chapter, the term "applicant" shall apply to that subsequent owner.
B. "Batch broadband permit processing" means the simultaneous processing of multiple broadband pe1mit applications for substantially similar broadband sites under a single permit submitted at once.
B. "Batch wireless communication facility application" means an application for multiple wireless communication facilities at multiple locations, or multiple applica~ions for separate facilities at multiple locations submitted at once.
C. "Broadband pe1mit application" means an application or other documents submitted for review by a local agency to permit the construction of a broadband project.
D. "Broadband project" means a proposed wireless communication facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components. including, but not limited to. a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by the City . .E;G. "Director of Development Services" means the City's Director of Development Services, or his/her appointed designee.
_Ef). "Existing support structure" means a structure, such as a street light, that is existing prior to the City's receipt of an application for a wireless communication facility permit, that will not have to be replaced or substantially modified to support the installation of a wireless communication facility. Notwithstanding the foregoing, in-kind replacement structures are considered existing support structures for the purposes of this chapter. Existing overhead utility poles or lines are not permitted existing support structures.
Q_K "In-kind replacement structure" means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed to support the other parts of the wireless communication facility, and is identical to the existing vertical infrastructure it replaces with respect to size, height, diameter, style, and exterior materials. 13 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
H:f. "Master communication site license agreement" means an agreement between the applicant and the City, approved by the City Council in accordance with Chapter 17.53 PMC, and all supporting and related documentation, including but not limited to insurance certificates and lease terms. Full cost recovery for staff time and direct costs associated with the agreement shall be part of a developer deposit, as set forth in the City's master fee schedule, as updated and amended from time to time.
IG-. "New support structure" means a structure that is constructed solely to support the other parts of the wireless communication facility.
J. "Presumptively reasonable time" for the purposes of this section shall mean the timeframe, if any specified by applicable law, and in the absence of such law, whatever time the Planning Division deems reasonable to process the broadband permit applications.
KH-"Replacement support structure" means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed solely to support the other parts of the wireless communication facility, except for in-kind replacement structures.
1I. "Single wireless communication facility application" means an application for a single wireless communication facility at a single location.
MJ. "Street light" means a light illuminating a road, mounted on a tall pole and within the public right-of-way. The term "street light" excludes overhead utility poles and lines.
N. "Simultaneous" for the purposes of this section means broadband pennit applications which are submitted at the same time.
0. "Substantially similar broadband project sites" means broadband project sites that are nearly identical in terms of equipment and general design, but not location.
£K. "Support structure" means either an existing support structure, new support structure, or replacement support structure, which are all considered part of a wireless communication facility.
Qb. "Wireless communication facility" means a facility for the provision of wireless communications or other similar utility services, and all antennas and equipment associated with the overall facility that are necessary for the function of the facility, including the support structure. (Ord. 829 § 2, 2019)
17.56.030 Permits required.
A. Prior to the construction or installation of any wireless communication facility in the public right-of-way, the applicant shall obtain a wireless communication facility permit pursuant to the procedures, requirements and restrictions of this chapter, in addition to a review for structural calculations and public right-of-way permit application pursuant to the requirements set forth in PMC 12.04.030. An improvement plan and inspection is required for a new support structure or a replacement support structure. Approval of a master communication site license agreement is required prior to approval of any batch wireless communication facility application.
B. Pursuant to PMC l 7.52.050(A), any wireless communication facility that includes a surface-mounted cabinet with any dimension greater than 36 inches, or where more than one cabinet of any size is located closer than 100 feet to another cabinet of any size, shall also obtain a minor development review permit from the Director of Development Services, unless the cabinet(s) are placed underground.
C. Nothing in this chapter affects the City's authority to require a conditional use permit pursuant to Chapter 17.48 PMC for a proposed wireless communication facility outside of the public right-of-way. (Ord. 829 § 2, 2019)
17.56.040 Approval authority.
The Director of Development Services shall be the approval body for all wireless communication facility permits. (Ord. 829 § 2, 2019)
14 of 19
January 16, 2024, Item #7
Poway Municipal Code Page 3 of 7
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
17.56.050 Appeal from Director decision.
A. Only an applicant may appeal a decision of the Director of Development Services regarding a wireless communication facility permit request. In such case, the appeal shall go before the hearing officer for review and action in accordance with the appeal procedures set forth in Chapter 2.20 PMC.
B. A decision of the hearing officer under Chapter 2.20 PMC is final. (Ord. 829 § 2, 2019)
17.56.060 Application requirements.
A. Before receiving a wireless communication facility permit, the applicant must submit an application in accordance with the requirements of this chapter.
B. The applicant shall comply with the City's "Guidelines for the Placement of Utility Facilities in the Public Rights-of-Way," as may be amended from time to time by City Council resolution.
C. Before submitting an application, all applicants are advised and strongly urged to participate in a wholly voluntary pre-application meeting with appropriate staff, scheduled in advance.
D. All applications for wireless communication facility permits shall include the following information:
1. A completed Planning Division general application. This form may be updated by the Director of Development Services from time to time, in his/her reasonable discretion. At a minimum, the following application materials shall be required:
a. A draft master communication site license agreement, if applicable. b. Detailed plans, including a site plan and elevation plans, showing and describing the layout and design of the proposed project, including a depiction of the boundaries of the site on which the project will be developed.
c. Documentation that the facility will comply with all Federal and State regulations and guidelines, including, where applicable, FCC regulations and guidelines. d. Site justification letter(s) justifying the need or requirement for the proposed location and design of the wireless communication facility, and whether or not co-location of additional facilities owned by different carriers is feasible, in compliance with PMC 17.56.090. The letter shall include other sites that were analyzed but not selected, with an explanation as to why the analyzed sites did not meet the objectives (including engineering, coverage and location justification), and why the co-location of the proposed wireless communication facility with others in the area cannot be accomplished. e. A utility plan showing equipment layout and utility connections. f. A report specifying the facility's compliance with the FCC's maximum possible exposure (MPE) levels in inhabited areas within 500 feet of the facility prepared by a qualified electrical engineer licensed by the State of California. Proof of compliance shall be a certification provided by the engineer who prepared the original based upon measurements after the facility is in operation, but prior to City final engineering inspection.
g. Mechanical engineering specifications of the facilities specifying maximum noise exposure levels of the facility to be in compliance with the City's noise ordinance, set forth in Chapter 8.08 PMC. h. Where the wireless communication facility also requires a minor development review permit pursuant to PMC 17.52.050, the application shall include documents required for minor development reviews and applicable fees and deposits.
2. Payment of all deposits or fees as required for processing of the associated permits as outlined in the City's master fee schedule, as may be amended from time to time. 15 of 19
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Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
E. The applicant shall agree in writing to indemnify, defend and hold harmless the City, its designees, employees, and assigns, from any and all liability resulting from the City's approval of the wireless communication facility, the operation of the wireless communication facility, and/or the City's enforcement of this chapter as it relates to any wireless communication facility owned and/or operated by the applicant.
F. The applicant shall submit a security in accordance with Chapter 16.20 PMC in an amount to be determined by the City Engineer to cover the removal of the facility in the event the site becomes abandoned or is otherwise vacated by the applicant.
G. When submitting a batch wireless communication facility application broadband pe1mit application, the applicant shall submit separate materials as specified in subsections (D)(l)(b) through (h) of this section for each facility that is not substantially similar as defined in Section 17.56.020 subsection (0). a part of the application. _A separate fee is required for each facility, as applicable. If some of the facilities require a minor development review permit and others do not, the City will process the facilities requiring minor development review each as a separate application. (Ord. lP9 § ?, 2019)
H. In addition to all applicable requirements stated above, all batch broadband pe1mit applications shall be required to adhere to all the requirements set forth in Section 17.56. 130.
17.56.070 Findings.
A. Prior to issuance of a wireless communication facility permit pursuant to this chapter, the following findings shall be made to the satisfaction of the Director of Development Services:
1. A complete application has been submitted to the satisfaction of the Development Services Director as required by this chapter.
2. The proposed wireless communication facility and applicant satisfies the requirements set forth in this chapter, specifically including PMC 17.56.080 and 17.56.090.
3. The proposed wireless communication facility satisfies the requirements set forth in the City's wireless communication policy, to the extent applicable, as may be amended by the City Council from time to time.
4. The proposed wireless communication facility is not detrimental to the public health, safety, or general welfare.
5. The proposed wireless communication facility is designed to match existing street infrastructure within the surrounding area, and conceals or minimizes visual impacts of the facilities.
6. Opportunities for co-location were maximized as a part of the project.
7. The proposed wireless communication facility is proposed to function in compliance with all applicable Federal, State and local regulations, including (where applicable) regulations of the Federal Communications Commission.
8. The applicant has paid all necessary City fees and deposits associated with the application, and the proposed wireless communication facility.
B. Where the Director of Development Services issues a wireless communication facility permit, the approval shall be conditioned on a requirement that the applicant comply with all of the standards, conditions and other requirements articulated in this chapter on an ongoing basis.
C. If the Director of Development Services, or on appeal, the hearing officer, cannot make the required findings, the approval authority shall deny the permit with a written explanation as to why any such finding could not be made. (Ord. 829 § 2, 2019)
16 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
17.56.080 Objective standards and operating conditions.
A. The support structure, including all added antennas, shall not be more than 50 feet in height or 10 percent taller than other adjacent vertical infrastructure. The wireless communication facility must not extend the height of an existing support structure by more than five feet.
B. The wireless communication facilities shall be architecturally integrated with support structures and screened from view to the largest extent feasible. The wireless communication facilities shall consist of the smallest, least visually intrusive antennas, components and other necessary equipment available. No portion ofa wireless communication facility placed on a street light shall be more than five feet above the light pole portion of the street light. Each portion of the wireless communication facility shall be designed at a diameter proportionately similar to, and no more than three times diameter of, the existing support structure. Associated equipment shall not be ground mounted, but instead, placed underground, unless the Director of Development Services determines that no other feasible alternative exists based on clear and convincing evidence provided by the applicant.
C. Antennas and equipment shall be painted to match the color of the surface of the support structure to which they are attached unless determined otherwise by the Director of Development Services.
D. No portion of a wireless communication facility is permitted to obstruct the view of any traffic sign, way-finding sign, traffic signal, or similar facility, nor be located within the sight triangle as shown in PMC 17.22.100.
E. The fire hydrant port that runs perpendicular to the street center line must remain unobstructed.
F. The wireless communication facility must not be designed in such a way that it requires antenna structure registration under Part 17 of Title 47 of the Code of Federal Regulations.
G. Each facility shall include emergency contact information visible from the sidewalk with the wireless carrier, the frequency band, a single point of contact in the applicant's engineering and maintenance departments (name, phone number, fax number, and email address), and a 24-hour phone number to which interference problems may be reported.
H. The antennas shall be activated and energized upon preliminary approval of the wireless communication facility by the Director of Development Services to allow for proof of compliance certification provided by the engineer who prepared the original MPE report based upon measurements after the facility is in operation, but prior to the City's final engineering inspection.
I. All wireless communication facilities and related equipment and improvements shall be maintained in good repair.
Any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight.
J. The owner or operator of a wireless communication facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in the permit.
K. Any substantial modification, removal or relocation of a wireless communication facility shall require submittal, review, and approval of a wireless communication facility permit pursuant to this chapter to the satisfaction of the Director of Development Services.
L. The owner or operator of a wireless communication facility shall remove, at its sole responsibility and expense, all portions a wireless communication facility and restore the existing support structure to its original condition, subject to approval of the Director of Development Services, within 60 days of ceasing operation of the permitted wireless communication facility.
M. The owner or operator of a wireless communication facility shall be required to modify, remove, or relocate its facility, or portion thereof, without cost or expense to the City, within 60 days of the City's notice, if and when made necessary, in the City's discretion, by:
1. Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric, or other utility systems or pipes owned by the City or any other public agency; 17 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION
FACILITIES
2. Any abandonment of any street, sidewalk, or other public facility;
3. Any change of grade, alignment or width of any street, sidewalk, or other public facility; or
4. A determination by the Director of Development Services that the wireless communication facility has become a risk to public health, safety, welfare, or the public's use of the public right-of-way.
N. In the case of an emergency or other similar exigent circumstances where the facility poses a threat of bodily harm, death, or harm to real property, or otherwise creates a safety hazard, the City may modify, remove, or relocate a wireless communication facility without prior notice to the applicant provided the applicant is notified within 30 days thereafter. The City shall make a reasonable attempt to contact the applicant prior to such emergency removal. (Ord. 829 § 2, 2019)
17.56.090 Objective siting requirements.
A. In furtherance of the City's goals to underground existing utilities throughout the City, wireless communication facilities shall not be located on existing overhead utility poles or lines, as set forth in PMC 17.56.020(D).
B. The applicant must make all commercially reasonable efforts to co-locate wireless communication facilities on existing support structures that already support other wireless communication facilities. If such co-location is not feasible, the applicant must provide the documentation required by PMC 17.56.060(D). In the event co-location is not feasible, the applicant must design the wireless communication facility in such a way that co-location ofat least one additional wireless communication facility is feasible on the same support structure in the future.
C. The preferred support structure for all wireless communication facilities is existing street lights, or other qualified existing support structures. The applicant must make all commercially reasonable efforts to utilize a street light or other qualified existing support structure. If a new or replacement support structure is required, the applicant must provide the documentation required by PMC 17 .56.060(D) demonstrating the same to the satisfaction of the Director of Development Services. Further, the applicant must explore and document the infeasibility of a replacement support structure before a wireless communication facility requiring a new support structure will be approved.
D. Required Setbacks for New Support Structures, Replacement Support Structures and Equipment and Accessory Structures Associated with a Wireless Communication Facility.
1. All portions of a wireless communication facility must be set back a minimum of 48 inches from any traffic signal facilities.
2. The setback for all portions of a wireless communication facility from any tree shall be a minimum of 48 inches, unless a qualified arborist can demonstrate to the satisfaction of the Director of Development Services that a lesser setback would not harm the tree.
3. A minimum of four feet of pedestrian clearance from any portion of a wireless communication facility, free of all obstacles for an unobstructed walkway, must be maintained at all times.
4. All portions of a wireless communication facility must be set back a minimum of seven feet from any fire hydrant, driveway, curb ramp or blue zone parking space.
5. Replacement support structures shall be located a maximum of five feet from the structure they replace.
However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, this distance can be expanded to no more than 10 feet.
6. All new support structures and replacement support structures shall provide the same setbacks as adjacent structures of a similar style. However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, the setback can be modified, provided the facility otherwise complies with setback regulations set forth in this subsection D and all pertinent laws and regulations, including, but not limited to, the Americans with Disabilities Act.
7. Any new support structure must be located a minimum of 50 feet away from any residential structure, and shall not be located along the street frontage adjacent to any school, daycare center, recreational area or park. 18 of 19
January 16, 2024, Item #7
Poway
Municipal
Code
Chapter
17.56 WIRELESS
COMMUNICATION
FACILITIES
Page
7 of
7 New
support
structures
may
not
be
located
within
75 feet
of
any
pre-existing
vertical
infrastructure
exceeding
IO
feet
in
height
or
any
preexisting
wireless
communication
facility,
as
measured
along
a horizontal
line
between
the
closest
points
of
the
subject
piece
of
infrastructure
and
closest
portion
of
the
proposed
wireless
communication
facility.
(Ord.
829
§ 2,
2019)
17.56.100
Large
wireless
communication
facilities.
The
Director
of
Development
Services
may
, in
his
or
her
discretion,
impose
additional
requirements
and
restrictions
on
wireless
communication
facilities
where
the
antenna
exceeds
three
cubic
feet
in
volume
, where
all
other
wireless
equipment
associated
with
the
structure
, including
the
wireless
equipment
associated
with
the
antenna
and
any
preexisting
associated
equipment
on
the
structure
, exceeds
28 cubic
feet
in
volume
, or
otherwise
do
not
meet
the
definition
of"small
wireless
facility
" set
forth
in
applicable
Federal
regulations
. (Ord
. 829
§ 2
, 2019)
17.56.110
Preemption
and
severability.
Notwithstanding
any
other
provision
of
this
chapter
to
the
contrary,
an
applicant
may
request
an
exemption
to
excuse
it
from
having
to
comply
with
any
portion
of
this
chapter
on
the
grounds
that
the
requirement
or
action
taken
by
the
City
would
violate
State
or
Federal
law.
The
City
shall
grant
the
exemption
or
excuse
an
applicant
from
compliance with
all
or
a portion
of
this
chapter,
if
it finds
based
on
substantial
evidence
in
the
record
that
the
challenged
requirement
or
action
is,
in
fact,
preempted by
State
or
Federal
law.
Such
an
exemption
shall
not
affect
the
enforceability
of
the
remainder
of
this
chapter
. If
any
provision
of
this
chapter
is
found
by
a court
of
competent
jurisdiction
to
be
unlawful
, void
or
for
any
reason
unenforceable,
it shall
be
deemed
severable
from,
and
shall
in
no
way
affect
the
validity
or
enforceability
of,
the
remaining
provisions
of
this
chapter
, which
shall
be
enforced
to
the
fullest
extent
possible.
(Ord
. 829
§ 2,
2019)
17.56.120
Reservation
of
rights
to
review
permit
.
The
City
reserves
the
right
to
reconsider
the
permit
at
the
end
of
a 10-year
time
period
from
the
date
of
the
original
permit
approval.
Reconsideration
items
to
be
reviewed
may
include,
but
are
not
limited
to,
conformance
with
all
objective
standards
, availability
of
new
technologies
, conformance
with
the
objective
concealment
standards
imposed
on
the
facility
, operation
of
applicable
radio
frequency
standards
and
regulations
(as
they
may
be
amended
from
time
to
time)
, and
compliance
with
Federal,
State
and
local
regulations
, including the
City
's noise
ordinance.
(Ord
. 829
§ 2,
2019)
17.56.130
Batch
Broadband
Permit
Processing
A.
City
Staff
shall
not
accept
for
processing
any
batch
broadband
permit
that
contain
over
25 separate
wireless
co
mmuni
cat
ion facilities.
B. City
Staff
will
reject
any
permit
in
a batch
application
that
is
not
substantially
similar
to
the
others
in
such
application. C. For
each
permit
over
one
(1
),
the
applicant
shall
file
a separate
amendment
to
the
pennit
defining
the
location
of
the
broadband
project
and
what
differences
in
design
or
construction
exist
between
the
additional
broadband
project
and
the
original
broadband
project.
D.
Applicant
shall
be
notified
of
approval
within
a presumptively
reasonable
time
or
in
a time
mutually
agreed
upon
by
the
City
and
the
applicant,
whichever
is
later.
19 of
19 January 16, 2024, Item #8
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PO RT City of Poway
January 16, 2024
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Service~ 0/A.
Wendy Kaserman, Assistant City Manager W i ., -
Shravani Gupta Singavarapu, Associate Planner
(858) 668-4609 or [email protected]
Wendy Kaserman, Assistant City Manager
(858) 668-4502 or [email protected] .
CITY COUNCIL
Approval of Encroachment Agreement (EA) between the City of Poway and Pome BESS, LLC for Long Term Encroachment of the Public Right-of-Way for the installation of an underground Gen-Tie (General Transmission) line The applicant is requesting an Encroachment Agreement approval for an underground generation tie (Gen-Tie) line as part of Development Review (DR) 23-0007, a request to construct a Battery Energy Storage System (BESS) located at 13830 and 13790 Danielson Street. The Gen-Tie line is an underground 69-kilovolt line that will transmit power between the project BESS substation and the San Diego Gas & Electric (SDG&E) company Pomerado Substation. This Gen-Tie line will cross Blaisdell Place and an existing SDG&E 69 kilovolt easement. Per the Municipal Code, the DR was administratively approved with conditions.
Recommended Action:
It is recommended the City Council approve the Pome BESS Encroachment Agreement (Attachment A) with Pome BESS, LLC and authorize the City Manager to execute the Agreement on behalf of the City, as well as make any minor modifications or take further action that may be necessary to effectuate the intent of the Encroachment Agreement.
Discussion:
The applicant is Eolus North America, Inc, who is processing the EA and DR on behalf of Pome BESS LLC, the entity that will sign the proposed EA. The property owner is Shultz Real Estate LLC. The subject property is located at 13830 and 13790 Danielson Street, in the Light Industrial/ Storage (LI/S) land use designation of the South Poway Specific Plan Area (SPSP). The site is currently developed with an existing automobile towing and storage business approved under Conditional Use Permit (CUP) 95-10 and CUP 95-1 OM. The applicant submitted for a DR 23-0007 application in June of 2023, a request to demolish the existing structures on the property and redevelop the site with a battery 1 of 20
January 16, 2024, Item #8
energy storage facility consisting of lithium-ion batteries housed in containers, inverters, transformers, and an underground Gen-Tie line interconnect into the SDG&E Pomerado Substation located at 13735 Stowe Drive in Poway. A site plan of the proposed facility approved with the DR is provided as Attachment B.
The site has driveway access from Danielson Street and Blaisdell Place. The existing block wall of approximately 8 feet located along the perimeter of the property will be increased to 12 feet in height and will be fire rated. The proposed facility will receive energy (charging) from the SDG&E electric transmission system, store energy, and then later deliver energy (discharging) back to the Pomerado Substation. This facility is intended to operate year-round and will be available to receive or deliver energy 24 hours a day, 365 days a year.
The DR was reviewed by all departments, including the Fire Department, and was approved on December 29, 2023. With the approved DR, the existing CUP for automobile towing company will be automatically revoked. The conditions in the DR approval addresses safety and operational parameters. The Fire Department requires compliance with California Fire Code (CFC) Chapter 1207 Battery Energy Storage Systems at all times to minimize any safety risks.
The EA, if approved by the City Council, will allow for long term encroachment of the public right-of way for the installation of a 69-kilovolt Gen-Tie line for the transmission of power between the Pome BESS project and the SDG&E Pomerado substation at 13735 Stowe Drive in Poway. The agreement imposes several conditions upon Pome BESS in exchange for long-term access to the City's public right-of-way. Pome BESS will encroach upon 1,226 square feet of the public right-of-way and per the terms of the agreement pay the City an annual fee of $6.81 per square foot, initially $8,350 per year.
This amount will be adjusted annually for inflation and be due in January of each year. Pome BESS is responsible for all costs and permits associated with the use of and installation of their infrastructure in the public right-of-way. In addition to reviewing the DR, the City's Fire Marshal reviewed the proposed EA and determined there is no safety risk with the Gen-Tie line as the electrical lines leading to the substation will be made underground and in compliance with the California Electrical Code and the California Fire Code. The proposed EA includes an indemnity and assumption of risk provision and requires the maintenance of insurance for the duration of work in the public right-of-way. The initial term of the agreement is five years, the agreement will renew automatically for successive five-year periods, unless Pome BESS provides the required 60 days written notice of their intent to terminate.
The City cannot terminate the agreement without cause. The maximum term of the agreement is thirty-five years from the date of execution.
Environmental Review:
The approval of the EA is not subject to CEQA review, however, the DR for the development was determined to be exempt from CEQA pursuant to Section 15183 of the California Environmental Quality Act (CEQA), because the certified Final Environmental Impact Report (EIR) dated July 30, 1985, and the Final Subsequent EIR dated July 26, 1988, for the SPSP adequately addresses potentially significant adverse environmental impacts of the proposed development in that it involves a use that is allowed in the SPSP and is designed to be consistent with the development standards contained within the SPSP. The EA would not add any additional potentially significant environmental impacts not already addressed during the DR process and the SPSP EIR. Therefore, no additional environmental review for this project is required.
2 of 20
January 16, 2024, Item #8
Fiscal Impact:
If approved, the EA will generate initial annual payments of $8,350 to the City for long term encroachment of the City's right-of-way. This amount will be adjusted annually for inflation.
Public Notification:
No public notification is required for this item. However, notification was provided to the adjacent property owners regarding approval of the DR and no comments were received regarding the DR.
Attachments:
A. Agreement for Long Term Encroachment of Public Right-of-Way B. Pome BESS Site Plan
Reviewed/Approved By:
Wend aserman
Assistant City Manager
3 of 20
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
c~
City Manager
January 16, 2024, Item #8
RECORDING REQUESTED BY
CITY OF POWAY
AND WHEN RECORDED MAIL TO:
City of Poway
Attn: City Clerk
13325 Civic Center Drive
Poway, California 92064
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT FOR LONGTERM
ENCROACHMENT OF PUBLIC RIGHT-OF-WAY
(POME BATTERY ENERGY STORAGE SYSTEM PROJECT)
THIS AGREEMENT FOR LONG TERM ENCROACHMENT OF PUBLIC RIGHT-OF- WA Y (this "Agreement") is dated as of ______ , 2024, by and between the CITY OF Poway, a municipal corporation (the "City"), on the one hand, and Pome BESS LLC, a Delaware limited liability company on the other hand ("Pome BESS"), pursuant to the following:
RECITALS
WHEREAS, Pome BESS is the permittee of approvals related to certain real property located at 13830 and 13790 Danielson Street in the City of Poway, State of California (Assessor's Parcel Numbers ["APN"] 317-810-1900 and -3700) as more fully described in the Legal Description attached hereto as Exhibit A and incorporated herein by this reference (the "Project Property"), for the purposes of developing an energy storage facility (the "Project").
WHEREAS, the City's approval of the Project includes the installation of a 69-kilovolt gen-tie line for the transmission of power between the Project and a substation operated by San Diego Gas & Electric Company ("SDG&E") and located at 13735 Stowe Drive in the City of Poway, State of California (APN 317-810-3300) ("SDG&E Property") that will extend beyond the Project Property into the dedicated right-of-way commonly known as Blaisdell Place in the City of Poway, State of California (the "Encroachment Area"). The Encroachment Area is more fully described and depicted in Exhibit B attached hereto and incorporated herein.
WHEREAS, the proposed installation by Pome BESS contemplated by this Agreement shall consist of one or more underground wires and cables, transmission or collector lines, fiber optic or other communication lines, for the transmission of electrical energy and communications, and all related uses, including but not limited to necessary and proper conduit, and other appliances, inverters, facilities and fixtures for use in connection with said wires and/or cables located underneath or along the Encroachment Area (the "Project Gen-Tie Offsite Improvements"). The Project Gen-Tie Offsite Improvements are generally depicted on the following plans approved by the City: (i) Development Review (DR23-0007) approved on December 29, 2023; and (ii) additional plans and permits, including, but not limited to, sites plan(s), public improvement plan(s) and building permits, to be approved in the future 4of20 Page 1
ATTACHMENT A
January 16, 2024, Item #8
(collectively,
"Approved
Plans
"). Complete
copies
of
the
Approved
Plans
are
and
will
be
on
file
with
the
Office
of
the
City
Clerk
of
the
City
of
Poway
and,
by
this
reference
, incorporated
herein
.
WHEREAS,
the
Encroachment
Area
is
of
1,226
total
square
feet
of
occupation
and
use
of
the
City's
right-of-way
.
The
City
has
authority
to
regulate
the
use
of
the
public
right-of-way,
including
for
the
construction
,
installation
and
maintenance
of
the
Project
Gen-Tie
Offsite
Improvements
there
in.
This
Agreement
is
in
addition
to
an
encroachment/right-of-way
permit
for
the
construction
Project
Gen-Tie
Offsite
Improvements
, the
terms
of
which
are
incorporated
herein
by
this
reference
.
NOW,
THEREFORE,
IT
IS
AGREED
between
the
parties
hereto
as
follows:
Section
1. City's
Conditions
to
Providing
Long
Term
Encroachment
That
City
agrees
to
permit
the
long-term
encroachment
by
Pome
BESS
in
the
Encroachment
Area
and
subject
to
the
following
conditions:
1. In
consideration
for
occupying
and
actual
use
of
the
City
's
public
right-of-way
on
a
long
term
basis
, Pome
BESS
agrees
to
pay
an
in-lieu
fee
to
compensate
the
City
for
that
use
at
the
rate
of
$6
.81
per
square
foot,
for
a
total
of
$8
,350
for
each
year
of
this
Agreement
("In
Lieu
Fee").
An
in-lieu
fee
shall
be
paid
ever
year,
and
shall
be
calculated
based
on
the
original
In-Lieu
Fee
plus
yearly
increases
by
the
annual
change
in
the
Consumer
Price
Index
-
All
Urban
Consumers,
San
Diego-Carlsbad,
as
published
by
the
United
States
Bureau
of
Labor
Statistics
, subject
to
rounding
to
the
nearest
whole
dollar.
If
the
index
is
discontinued
or
revised
during
the
term,
such
other
government
index
or
computation
with
which
it
is
replaced
shall
be
used
in
order
to
obtain
substantially
the
same
result
as
would
be
obtained
if
the
index
had
not
been
discontinued
or
revised
.
The
In-Lieu
Fee
will
be
invoiced
by
the
City
every
January
that
this
Agreement
is
in
effect
, and
shall
be
due
and
payable
within
thirty
(30)
days
of
that
invoice
.
2. Pome
BESS
shall
pay
or
deposit
with
the
City
all
actual
, out-of-pocket
applicable
costs
incurred
by
the
City
in
connection
with
the
Project
Gen-Tie
Offsite
Improvements
, such
as
processing
fees,
field
marking,
plan
review
, engineering
and
inspection
fees
related
to
the
proposed
work,
and
City
's
actual,
out-of-pocket
legal
fees
for
the
preparation
of
this
Agreement,
and
any
other
such
fees
and
costs
that
are
incurred
related
to
the
Project
Gen-Tie
Offsite
Improvements.
3. Pome
BESS
shall
install
landscaping
,
or
contract
to
install
by
a
licensed
contractor
with
appropriate
class
of
license
in
the
State
of
California,
and
thereafter
will
maintain
such
landscaping
within
the
Project
Gen-Tie
Offsite
Improvements
conforming
to
the
Approved
Plans
described
above
.
4. All
other
Project
Gen-Tie
Offsite
Improvements
shall
be
continuously
maintained
by
Pome
BESS
in
a
good,
safe,
neat,
clean,
and
operational
condition
, free
from
any
nuisance,
to
the
reasonable
satisfaction
of
the
City
5. No
structures
, trees,
shrubs
or
obstacles
of
any
kind
shall
be
installed
outside
of
the
Encroachment
Area.
6. City
shall
not
be
responsible
to
maintain,
repair
or
otherwise
restore
any
of
Pome
BESS's
improvements
and/or
alterations
within
the
Encroachment
Area
. Any
maintenance
,
s
of
20 Page2
January 16, 2024, Item #8
repair
or
replacement
to
the
Project
Gen-Tie
Offsite
Improvements
shall
be
at
Pome
BESS
's
expense
. 7.
In
the
event
such
maintenance
, repair
or
replacement
to
the
Project
Gen-Tie
Offsite
Improvements
adversely
impact
City
property
or
improvements,
Pome
BESS
shall,
at
its
sole
cost
and
expense,
restore
such
impacted
property
or
improvements
to
its
original
condition
,
to
the
extent
the
impacts
were
not
caused
by
the
City's
misconduct
or
negligence.
The
City
shall
determine,
in
its
reasonable
discretion,
if,
when
and
to
what
extent
the
Project
Gen-Tie
Offsite
Improvements
have
adversely
impacted
City
property
or
improvements
. Specifically,
Pome
BESS
shall
be
responsible
to
fix
any
damage
to
City street
pavements,
existing
public
or
private
utilities
, curbs,
gutters,
sidewalks
or
any
private
properly
or
improvements
to
the
extent
attributable
to
its
installation,
maintenance,
repair
or
removal
of
its
Project
Gen-Tie
Offsite
Improvements
in
the
public
right-of-way
and
shall
repair,
replace
and
restore
in
kind
any
such
damaged
facilities
at
its
sole
expense
and
to
the
approval
of
the
City.
Any
premature
deterioration
of
the
surface
or
subsurface
improvements
as
determined
by
City,
in
accordance
with
prudent
industry
standards
,
shall
be
the
responsibility
of
Pome
BESS
to
the
extent
attributable
to
Pome
BESS's
activities
; this
responsibility
shall
survive
this
Agreement
or
any
abandonment
of
the
Project
Gen-Tie
Offsite
Improvements
for
a
period
of
two
(2)
years
from
the
date
of
Pome
BESS's
most
recent
installation
of
or
improvements
in
the
Encroachment
Area
.
Pome
BESS
shall
promptly,
following
written
notice
from
the
City,
cause
all
necessary
repairs
to
be
completed;
however
, under
no
circumstances
may
the
period
of
time
exceed
thirty
(30)
days
.
In
the
event
the
repairs
are
not
made,
the
City
shall
make
repairs
with
the
cost
being
billed
to
and
payable
by
Pome
BESS
, which
expense
Pome
BESS
shall
pay
upon
demand.
8. If
the
public
right
-of-way
to
be
used
by
Pome
BESS
has
preexisting
installation(s),
Pome
BESS
shall
assume
the
responsibility
to
verify
the
location
of
the
preexisting
installation
and
notify
the
City
and
any
third
party
of
Pome
BESS's
proposed
installation
. The
cost
of
any
work
required
of
such
third
party
or City
to
provide
adequate
space
or
required
clearance
to
accommodate
Pome
BESS
's
installation
shall
be
borne
solely
by
Pome
BESS
. 9.
Pome
BESS
shall
construct,
install
, operate
and
maintain
the
Project
Gen-Tie
Offsite
Improvements
in
accordance
and
in
conformity
with
all
applicable
City,
State
, Federal
and
regulatory
agency
laws
, ordinances
, rules
and
regulations.
10 .
Pome
BESS
agrees
to
cooperate
in
the
planning,
locating
and
constructing
of
its
Project
Gen-Tie
Offsite
Improvements
in
joint
utility
trenches
or
common
duct
banks
with
other
similar
utilities
and
to
participate
in
cost-sharing
for
the
joint
trench
and
ducts
, when
such
joint
utility
installations
are
being
planned
for
or
such
opportunities
exist
in
any
area;
provided
that
such
activities
do
not
unreasonably
impair
or
disrupt
Pome
BESS's
activities
or
the
Project
Gen
Tie
Offsite
Improvements
.
11. Pome
BESS
shall
remove
or
relocate,
without
material cost
or
expense
to
City,
any
Project
Gen-Tie
Offsite
Improvements
installed
, used
and
maintained
under
this
Agreement
if and
when
made
necessary
by
any
change
of
grade,
alignment
or
width
of
any
street,
sidewalk
or
other
public
facility
, including
the
construction
, maintenance
or operation
of
any
underground
subway
or
viaduct
by
City
and/or
the
construction
, maintenance
or
operation
of
any
other
City
underground
or
above
ground
facilities
. In
the
event
all
or
any
portion
of
said
public
right-of-way
occupied
by
the
Project
Gen-Tie
Offsite
Improvements
shall
be
needed
by
City
or
in
the
event
the
existence
of
said
Project
Gen-Tie
Offsite
Improvements
shall
adversely
affect
governmental
6 of
20 Page
3 January 16, 2024, Item #8
activities,
including
but
not
limited
to,
interference
with
City
construction
projects,
or
is
in
conflict
vertically
and/or
horizontally
with
any
proposed
City
installation,
Pome
BESS
shall
remove
and
relocate
said
Project
Gen-Tie
Offsite
Improvements
to
such
other
location
or
locations
in
the
public
right-of-way
as
may
be
designated
by
City
and
which
are
reasonably
acceptable
to
Pome
BESS
.
Pome
BESS
shall
cause
such
removal
or
relocations
to
be
completed
within
one
hundred
eighty
(180)
days
of
notification
by
City
unless
exigencies
dictate
a
shorter
period
for
removal
or
relocation.
In
the
event
said
Project
Gen-Tie
Offsite
Improvements
are
not
removed
or
relocated
within
said
period
of
time
, City
may
cause
the
same
to
be
done
at
the
expense
of
Pome
BESS
and
Pome
BESS
shall
reimburse
the
City
for
any
and
all
actual,
out-of-pocket
expenses
incurred
by
the
City
in
connection
therewith
.
If
Pome
BESS
fails
to
vacate
or
otherwise
remove
the
Project
Gen-Tie
Offsite
Improvements
as
required
by
City,
City
shall
be
entitled
to
vacate
or
otherwise
remove
the
facilities
at
Pome
BESS's
sole
cost
and
expense.
Notwithstanding
the
foregoing,
City
shall
provide
Pome
BESS
with
prior
written
notice
of,
and
consult
with
Pome
BESS
with
respect
to,
any
vacation
or
removal
of
the
Project
Gen-Tie
Offsite
Improvements
by
City,
and
Pome
BESS
shall
have
the
right
to
have
a
representative
present
during
any
such
vacation
or
removal
work
conducted
by
City
.
12 .
Should
City
intend
to
authorize
or
permit
installations
of
a
third
party
(not.
including
any
City
-owned
installations)
to
public
right-of-way
jointly
used
under
this
Agreement
,
and
should
the
proposed
installation
of
such
third
party
interfere
with,
adversely
affect
or
require
the
rearrangement
of
any
Pome
BESS
Project
Gen-Tie
Offsite
Improvements
,
City
shall
condition
third
party
installations
to
provide
such
third
party
pay
all
costs
of
rearranging
the
Project
Gen-Tie
Offsite
Improvements
before
authorizing
or
permitting
the
third
party
installations.
13 .
If
any
portions
of
the
Project
Gen-Tie
Offsite
Improvements
covered
under
this
Agreement
are
no
longer
used
by
Pome
BESS
or
its
affiliates
or
successors,
or
are
abandoned
for
a
continuous
period
in
excess
of
six
(6)
months,
Pome
BESS
shall
notify
City
and
shall
either
promptly
vacate
or
remove
the
facilities
at
its
own
expense
or,
at
the
City's
sole
discretion,
may
be
allowed
to
abandon
some
or
all
of
the
facilities
in
place.
If
Pome
BESS
is
permitted
by
the
City
to
abandon
its
facilities
in
place,
any
such
abandoned
facilities
shall
be
deemed
conveyed
to
City
and
Pome
BESS
shall
have
no
further
obligation
to
remove
, relocate
or
maintain
said
facilities.
For
the
avoidance
of
doubt,
the
Gen-Tie
Offset
Improvements
shall
not
be
deemed
abandoned
when
non-use
is
required
due
to
a
material
casualty
or
similar
event
for
which
Pome
BESS
intends
to
conduct
repair
or
replacement
work
and
continue
operation.
14 .
When
removal
or
relocation
is
required
under
the
Agreement,
Pome
BESS
shall,
after
the
removal
or
relocation
of
the
Project
Gen-Tie
Offsite
Improvements,
at
its
own
cost,
repair
and
return
the
public
right-of-way
on
which
the
facilities
were
located
to
a
safe
and
satisfactory
condition
in
substantial
accordance
with
the
construction-related
conditions
and
specifications
as
established
by
City
according
to
its
standard
practice.
Should
Pome
BESS
remove
the
Project
Gen-Tie
Offsite
Improvements
from
the
public
right-of-way,
Pome
BESS
shall,
within
ten
(10)
business
days
after
such
removal,
give
notice
thereof
to
City
specifying
the
right-of-way
affected
and
the
location
thereof,
as
well
as
the
date
of
removal.
Before
proceeding
with
removal
or
relocation
work,
Pome
BESS
shall
obtain
an
Encroachment
Permit
from
the
City.
If
Pome
BESS
does
not
return
the
affected
site
to
a
safe
and
satisfactory
condition,
then
City
shall
have
the
option
to
perform
or
cause
to
be
performed
such
reasonable
and
necessary
work
on
behalf
of
Pome
BESS
and
charge
the
actual
costs
incurred
to
Pome
BESS.
Upon
receipt
of
a demand
for
payment
by
City,
Pome
BESS
shall
reimburse
City
for
all
such
costs
.
7 of
20 Page4
January 16, 2024, Item #8
Section
2. Pome
BESS
Covenants
Pome
BESS
shall
do
all
of
the
following
as
conditions
to
the
City's
grant
of
the
long-term
encroachment
under
the
Agreement:
1. Pome
BESS
shall
comply
with
the
requirements
set
forth
Section
1. 2.
In
the
event
that
Pome
BESS
fails
to
comply
with
any
obligations
set
forth
in
this
Agreement,
the
City
will
give Pome
BESS
thirty
(30)
days
written
notice
to
cure
. If
the
failure
to
comply
is
not
thereafter
corrected
, so
long
as
the
obligation
is
such
that
it
can
be
cured
within
thirty
(30)
days,
the
City
Director
of
Development
Services
may
cause
the
necessary
action
to
cure
and
the
cost
of
that
action
shall
be
borne
by
Pome
BESS,
or
the
City
may,
at
its
sole
discretion,
terminate
this
Agreement.
This
Section
2.2 does
not
limit
any
other
rights
or
remedies
otherwise
available
to
the
City.
3. Upon
the
completion
of
construction
work
on
the
Project
Gen-Tie
Offsite
Improvements,
Pome
BESS
shall
promptly
furnish
to
City
accurate
plans
and
record
-drawings
showing
in
detail,
the
exact
location,
depth,
and
size
of
all
facilities
in
the
public
right-of-way,
including,
without
limitation,
the
profiles
of
all
street
crossings
.
These
plans
and
drawings
shall
be.
incorporated
in
one
(1)
set
of
3 mil
minimum
thickness,
good
quality
transparent
mylar
drawings,
or
provided
in
another
format
accepted
by
the
City.
Pome
BESS
shall
furnish
to
City
electronic
versions
of
the
full
set
of
plans,
as
well.
To
the
extent
directional
boring
or
other
similar
methods
are
used
to
construct
or
install
the
Project
Gen-Tie
Offsite
Improvements,
Pome
BESS
also
shall
pothole
all
City
mains
and
customer
services
lines
prior
crossing
over,
under,
or
between
such
underground
facilities.
Pome
BESS
shall
identify
the
Project
Gen-Tie
Offsite
Improvements
installed
in
each
public
right-of-way
by
means
of
an
identification
method
mutually
agreed
upon
by
the
City
and
POME
BESS
.
Such
identification
shall
be
detectable
from
ground
level
without
opening
the
streh
Pome
BESS
shall
install
a
locator
wire
in
connection
with
its
construction
of
the
Project
Gen-Tie
Offsite
Improvements
.
Section
3. No
Creation
of
Adverse
Right
to
City
Pome
BESS
agrees
that
the
use
of
the
Encroachment
Area
for
the
Project
Gen-Tie
Offsite
Improvements
is
with
the
express
permission
of
the
City,
and
will
in
no
way
create
any
right
whatsoever
in
Pome
BESS
which
is
adverse
to
any
rights
of
City,
and
that
the
rights
of
Pome
BESS
are
the
rights
herein
given
by
this
Agreement
and
no
other
rights
in
the
Encroachment
Area
whatsoever
accrue
hereunder
.
Section
4. Indemnity
and
Assumption
of
Risk
Pome
BESS
agrees
to
defend,
indemnify
and
hold
harmless
the
City,
its
officers,
officials,
agents,
employees
and
volunteers
from
and
against
any
and
all
claims,
demands,
actions,
losses,
damages,
injuries,
and
liability,
direct
or
indirect
(including
any
and
all
costs
and
expenses
in
connection
therewith,
including
all
attorneys'
fees
and
litigation
costs),
arising
out
of
this
Agreement,
and
as
a
result
of
any
action
or
inaction
by
Pome
BESS
or,
its
agents,
employees,
contractors,
or
any
other
individual
or
corporation
acting
on
its
behalf
of
at
its
direction
(collectively,
"Pome
BESS
Parties"),
including
but
not
limited
to:
(1)
Pome
BESS
Parties'
performance
under
this
Agreement;
(2)
all
work
conducted
pursuant
to
this
Agreement
by
any
Pome
BESS
Parties,
whether
authorized
or
unauthorized
(specifically
including,
but
not
limited
to,
all
work
in
the
right-of-way
pursuant
to
this
Agreement,
and/or
work
on
any
portion
of
8 of
20 Page
5 January 16, 2024, Item #8
the
Project
Gen-Tie
Offsite
Improvements)
; (3)
Pome
BESS
Parties
' failure
to
comply
with
any
of
their
obligations
contained
in
this
Agreement
;
(4)
Pome
BESS
Parties
'
creation
of
a
dangerous,
unsafe,
or
attractive
nuisance
condition
within
the
Encroachment
Area;
or
(5)
Pome
BESS
Parties'
inadequate
maintenance
of
the
public
right-of-way
that
is
encroached
upon
and/or
its
surrounding
area
, except
to
the
extent
any
such
claims
arise
out
of
or
are
related
to
the
sole
negligence
or
willful
misconduct
of
the
City,
its
officers,
agents
,
employees
or
volunteers
.
Except
for
injuries
to
persons
caused
by
the
sole
negligence
or
willful
misconduct
of
the
City:
(a)
Pome
BESS
hereby
assumes
the
risk
of
any
and
all
injury
and
damage
to
the
personnel
(including
death)
and
property
of
Pome
BESS
that
occurs
in
the
course
of, or
in
connection
with,
the
performance
of
Pome
BESS
's
obligations
unde
r this
Agreement,
including
but
not
limited
to
all
work
on
the
Project
Gen-Tie
Offsite
Improvements;
and
(b)
it
is
hereby
agreed
that
the
City
is
not
to
be
liable
for
injury
or
damage
which
may
be
sustained
by
the
person
, goods
or
property
of
the
Pome
BESS
Parties
.
Section
5. Recordation
of
This
Agreement.
Within
five
(5)
business
days
after
the
execution
of
this
Agreement
by
all
necessary
parties,
the
City
shall
cause
this
Agreement
to
be
recorded
against
the
Project
Property
.
This
Agreement
and
the
covenants
contained
herein
shall
be
binding
upon
and
inure
to
the
benefit
of
the
successors
, heirs
, assigns
and
transferees
of
Pome
BESS
thereby
creating
an
equitable
servitude
upon
the
Project
Property
so
long
as
the
Project
Gen-Tie
Offsite
Improvements
remain
in
the
Encroachment
Area.
Notwithstanding
the
forewing,
this
Agreement
shall
not
be
assignable
by
Pome
BESS
without
the
explicit
written
approval
of
City,
which
approval
shall
not
be
unreasonably
withheld
, provided,
however
, that
Pome
BESS
may
assign
the
rights
herein
to
a
parent
, successor,
subsidiary
, joint
venturer,
mortgagee
(or
similar)
or
affiliate
of
Pome
BESS
now
or
hereafter
existing,
by
only
providing
notice
to
the
City
of
such
assignment.
However,
this
Agreement
shall
be
binding
on
successors
and
assigns
and
shall
be
disclosed
to
assignee
.
Section
6. Notices.
Any
notice
required
to
be
given
under
this
Agreement
shall
be
in
writing
and
either
served
personally
or
sent
prepaid
, first-class
mail.
Any
such
notice
shall
be
addressed
to
the
other
party
at
the
address
set
forth
below.
Notice
shall
be
deemed
communicated
within
48 hours
from
the
time
of
mailing
if mailed
as
provided
in
this
section
.
If
to
City
:
If to
Pome
BESS
:
City
of
Poway
Attn
: Assistant
City
Manager
13325
Ci
vic
Center
Drive
Poway,
California
92064
Pome
BESS
LLC
Attn:
Legal
Department
5538A
La
Jolla
Boulevard
La
Jolla,
California
92037
Or,
in
the
event
that
Pome
BESS
is
no
longer
the
permittee
to
the
Project
, to
the
property
owner
of
record
as
reflected
in
the
current
ownership
rolls
maintained
by
the
San
Diego
County
Tax
Collector. 9
of20
Page
6 January 16, 2024, Item #8
Section
7. Effective
Date
and
Term.
The
term
of
this
Agreement
shall
commence
on
the
date
it
is
approved
by
the
City
Council
("Effective
Date"),
and
shall
be
for
a
term
of
five
(5)
years.
Provided
that
Pome
BESS
is
not
in
default
under
this
Agreement
beyond
applicable
notice
and
cure
periods,
the
term
will
renew
automatically
for
successive
five-year
periods,
unless
Pome
BESS
provides
the
City
with
sixty
(60)
days
prior written
notice
of
termination
. The
maximum
term
of
this
agreement
is
thirty
five
(35)
years
from
the
date
this
initial
Agreement
is
executed,
unless
extended
by
written
agreement
of
the
Parties
.
Section
8. No
Franchise
Created.
Nothing
in
this
Agreement
shall
be
construed
as
granted
or
creating
any
franchise
rights
.
Section
9. Insurance
Any
person,
firm
or
corporation
Pome
BESS
authorizes
to
work
upon
the
public
right-of
way,
including
any
contractor,
shall
be
deemed
to
be
an
agent
of
Pome
BESS,
and
shall
be
subject
to
all
the
applicable
terms
of
this
Agreement,
prior
to
entry
on
the
right-of-way
by
such
agents.
Pome
BESS
shall
provide
City
with
satisfactory
evidence
(in
the
form
of
a
Certificate
of
Insurance)
that
it
and
its
contractors
or
other
agents
who
will
access
the
public
right-of-way
pursuant
to
this
Agreement
are
insured
in
accordance
with
the
following,
which
insurance
shall
remain
in
effect
throughout
the
term
of
this
Agreement
and
shall
be
at
the
sole
cost
and
expense
of
Pome
BESS
(or
its
agents).
Prior
to
the
start
of
the
work
or
entry
onto
the
public
right-of-way,
Pome
BESS
agrees
to
procure
and
maintain,
and
require
its
contractor(s)
to
procure
and
maintain,
at
its
(or
its
contractors')
sole
cost
and
expense
(and
to
prove
to
City's
reasonable
satisfaction
that
it
remains
in
effect
throughout
the
work),
the
kinds
and
limits
of
insurance
described
below
:
(a)
Comprehensive
General
Liability,
including
premises-operations,
products/completed,
broad
form
property
damage,
and
blanket
contractual
liability
with
the
following
coverages:
General Liability
$1,000,000
Bodily
Injury
and
Property
Damage
combined
each
occurrence
and
$2,000,000
aggregate
.
(b)
Automobile
Liability,
including
owned,
hired,
and
non-owned
vehicles:
$1,000,000
combined
single
limit.
(c)
Pome
BESS
shall
obtain
and
maintain,
during
the
life
of
the
Agreement,
a
policy
of
Professional
Errors
and
Omissions
Liability
Insurance
with
policy
limits
of
not
less
than
$1
,000,000
combined
single
limits,
per
claim
and
annual
aggregate.
(d)
Workers'
Compensation
insurance
in
statutory
amount.
All
of
the
endorsements
which
are
required
above
shall
be
obtained
for
the
policy
of
Workers'
Compensation
insurance.
Endorsements
shall
be
obtained
so
that
each
policy
contains
the following
three
provisions: 10
of
20 Page
7 January 16, 2024, Item #8
(a)
Additional
Insured.
(Not
required
for
Professional
Errors
and
Omissions
Liability
Insurance
or
Workers'
Compensation.)
"City
of
Poway
and
its
elected
and
appointed
boards,
officers,
agents,
and
employees
are
additional
insureds
with
respect
to
this
subject
project
and
contract
with
City."
(b)
Notice.
"Said
policy
shall
not
terminate,
nor
shall
it be
canceled,
until
thirty
(30)
days
after
written
notice
is
given
to
City."
(c)
Primary
Coverage.
"The
policy
provides
primary
coverage
to
City
and
its
elected
and
appointed
boards,
officers
,
agents,
and
employees.
It
is
not
secondary
or
in
any
way
subordinate
to
any
other
insurance
or
coverage
maintained
by
City."
Section
10. Entire
Agreement.
This
Agreement
and
the
Exhibits
attached
hereto
constitute
the
complete
and
exclusive
statement
of
Agreement
between
the
City
and
Pome
BESS
.
All
prior
written
and
oral
communications,
including
correspondence,
drafts,
memoranda,
and
representations,
are
superseded
in
total
by
this
Agreement.
Section
11. Amendments.
This
Agreement
may
be
modified
or
amended
only
by
a
written
document
executed
by
both
the
then-current
Project
permittee
and
the
City
and
approved
as
to
form
by
the
City
Attorney
. Section
12. Severability.
If
any
term
or
portion
of
this
Agreement
is
held
to
be
invalid
,
illegal,
or
otherwise
unenforceable
by
a
court
of
competent
jurisdiction
, the
remaining
provis
ions
of
this
Agreement
shall
continue
in
full
force
and
effect.
Section
13. Controlling
Law
Venue.
This
Agreement
and
all
matters
relating
to
it
shall
be
governed
by
the
laws
of
the
State
of
California
and
any
action
brought
relating
to
this
Agreement
shall
be
held
exclusively
in
a
state
court
in
the
County
of
San
Diego
.
Pome
BESS
expressly
waives
any
right
or
ability
to
transfer
venue
outside
of
San
Diego
County
pursuant
to
the
Code
of
Civil
Procedure.
Section
14. Litigation
Expenses
and
Attorneys'
Fees.
If
either
party
to
this
Agreement
commences
any
legal
action
against
the
other
party
arising
out
of
this
Agreement
, the
prevailing
party
shall
be
entitled
to
recover
its
reasonable
litigation
expenses,
including
court
costs,
expert
witness
fees
,
discovery
expenses,
and
attorneys'
fees.
11 of
20 Page
8 January 16, 2024, Item #8
Section
15. Counterparts.
This
Agreement
may
be
executed
in
several
counterparts,
each
of
which
shall
constitute
one
and
the
same
instrument
and
shall
become
binding
upon
the
parties
when
at
least
one
copy
hereof
shall
have
been
signed
by
both
parties
hereto.
In
approving
this
Agreement,
it
shall
not
be
necessary
to
produce
or
account
for
more
than
one
such
counterpart
.
Section
16. Authority
to
Enter
Agreement.
Pome
BESS
has
all
requisite
power
and
authority
to
conduct
their
business
and
to
execute,
deliver,
and
perform
the
Agreement.
Each
party
warrants
that
the
individuals
who
have
signed
this
Agreement
have
the
legal
power,
right,
and
authority
to
make
this
Agreement
and
to
bind
each
respective
party
.
Section
17. Incorporation
of
Recitals
The
Recitals
are
incurred
into
the
body
of
this
Agreement
and
made
a
part
thereof,
as
if
fully
set
forth
herein
.
[Signatures
on
Following
Page]
12 of
20 Page
9 January 16, 2024, Item #8
IN WITNESS WHEREOF the parties have caused this Agreement to be executed on the date first written above.
APPROVED AS TO FORM:
Alan B. Fenstermacher
City Attorney
13 of 20
CITY OF POWAY,
a municipal corporation
By:--------------
Chris Hazeltine
City Manager
POME BESS LLC,
a Delaware limited liability company
By: _____________ _
Hans-Christian Schulze
President, Borne BESS LLC