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
January 16, 2024, Item #8
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of San Diego
On _________ , before me, _____________ , Notary Public, personally appeared _______________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
14 of 20 Page 11
January 16, 2024, Item #8
CONSENT OF OWNER
The undersigned, as the owner of all or a portion of the property subject to this Agreement hereby consents to the recordation of this Agreement.
Shultz Real Estate LLC,
a California limited liability company
By: ____________ _
Name: --------------
Title: _____________ _
15 of 20 Page 12
January 16, 2024, Item #8
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of San Diego
On _________ , before me, _____________ , Notary Public, personally appeared ______________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
16 of 20 Page 13
January 16, 2024, Item #8
EXHIBIT
A
LEGAL
DESCRIPTION
OF
PROJECT
PROPERTY
The
Project
Property
is
situated
in
the
State
of
California,
County
of
San
Diego,
City
of
Poway
and
described
as
follows:
APN:
317-810-19-00
and
317-810-37-00
Parcel
A:
Lot
42 of
City
of
Poway
Tract
No.
87-13,
Unit
No
. 1,
in
the
City
of
Poway
, County
of
San
Diego,
State
of
California,
according
to
Map
thereof
No
. 12556
filed
in
the
Office
of
the
County
Recorder
of
San
Diego
County,
February
8,
1990.
Parcel
B:
Lots
52,
53 and
54 of
City
of
Poway
Tract
No.
87-13
, Unit
No.
1,
in
the
City
of
Poway,
County
of
San
Diego,
State
of
California,
according
to
Map
thereof
No.
12556,
filed
in
the
Office
of
the
County
Recorder
of
San
Diego
County
17 of
20 January 16, 2024, Item #8
EXHIBIT B
LEGAL DESCRIPTION AND DEPICTION OF ENCROACHMENT AREA
LEGAL DESCRIPTION AND
DEPICTION OF ENCROACHMENT
POME BESS LLC
A DELAWARE LIMITED LIABILITY COMPANY
LOT 47 & P/0 LOT 48
TRACT NO. 87-13, UNIT NO. 1
PER MAP NO. 12556, DATED FEB. 8, 1990
CITY OF POWAY, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA
SECTION 19, TOWNSHf P 14 SOUTH, RANGE 1 WEST
18 of 20
LEGAL DESCRIPTION:
VICINITY MAP
(NOT TO SCALE)
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO. CITY OF POWAY AND DESCRIBED AS FOLLOWS:
A PORTION OF BLAISDELL PLACE (CALLED 49 FEET WIDE). CITY OF POWAY TRACT 87-13 UNIT 1. ACCORDING TO MAP NO. 12556. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON FEBRUARY 8. 1990. IN THE CITY OF POWAY.
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. BEING DESCRIBED AS FOLLOWS:
COMMENCING FOR REFERENCE AT THE SOUTHWEST CORNER OF SAID LOT 47.
SAME BEING IN THE NORTH RIGHT-OF-WAY LINE OF SAID BLAISDELL PLACE:
THENCE N88"26'02"E ALONG S.I\ID NORTH RIGHT-OF-WAY LINE A DISTANCE OF 6.01 FEET TO THE POINT OF BEGINNING AND NORTHWEST CORNER:
THENCE. NS8"26'02"E. A DISTANCE OF 30.03 FEET TO THE NORTHEAST CORNER:
THENCE. S01 "00'18"W. A DISTANCE OF 49.05 FEET TO A POINT IN THE SOUTH
RIGHT-OF-WAY LINE OF SAID BLAISDELL PLACE AND BEING THE SOUTHEAST CORNER:
THENCE. sss·2s·o2·w. ALONG SAID SOUTH RIGHT-OF-WAY LINE. A DISTANCE OF
30.03 FEET TO THE SOUTHWEST CORNER:
THENCE. N01'00'18"E. DEPARTING SAID SOUTH RIGHT-OF-WAY LINE. A DISTANCE OF 49.05 FEET TO THE POINT OF BEGINNING OF THE LANDS HEREIN DESCRIBED.
AND CONTAINING 1.471 SQUARE FEET OR 0.0338 ACRE. MORE OR LESS.
DUDEK
605 THIRD STREET
ENCINITAS, CA 92024
PH.: 760-942-5147
SHEET 1 OF 2
January 16, 2024, Item #8
LEGAL DESCRIPTION AND
DEPICTION OF ENCROACHMENT
POME BESS LLC
A DELAWARE LIMITED LIABILITY COMPANY
LOT 47 & P/0 LOT 48
TRACT NO. 87-13, UNIT NO. 1
PER MAP NO. 12556, DA TED FEB. 8, 1990
CITY OF POWAY, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA
SURVEYOR NOTES:
() INDICATES RECORD DATA PER MAP No. 12556
P.O.B. POINT OF BEGINNING
.__ _ _,I EASEMENT AREA
LINE TABLE
SECTION 19, TOWNSHIP 14 SOUTH, RANGE 1 WEST LINE BEARING LENGTH L11 N88°26'02"E 6.01'
L12 N88°26'02"E 30.03'
L13 S01'00'18"W 49.05'
L14 S88'26'02"W 30.03'
L15 N01'00'18"E 49.05'
LOT31
I
t
;: "-PIO
0 ii~
r6
<!) APN: 317-810-33-00 /::'o LOT 48
II SAN DIEGO GAS & LOT 47 "'..J
§
~
ELECTRIC COMPANY
f~
u.i LOT 31, 30, & 29 APN: 317-810-36-00
..J LOT 47 & PIO LOT 48
c::i
<{ SUBMAP NO. 12556 (.)
!Q. MAP NO. 12556
1.70ACRES
P.O.C. L11 --
~
a:: P.O.B. 30' 0
2 C')
~
BLA.fSDELLP
0.0338 ACRE
....J C)
---- (1,471 SQ. FT.)
~ L14
-
.....__
---
LEGEND:
------SUBJECT PARCEL BOUNDARY 60 30 0 60 120 -----180
------EASEMENT BOUNDARY
- - - -EXISTING EASEMENTS
-----CENTER LINE OF ROADWAY GRAPHIC SCALE IN FEEr
SHEET 2 OF 2
19 of 20
January 16, 2024, Item #8
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