13 of 22
February 20, 2024, Item #8
reasonable
satisfaction
that
it
remains
in
effect
throughout
the
work),
the
kinds
and
limits
of
insurance
described
below
:
(a)
Comprehensive
General
Liability,
including
premises-operat
ions,
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
:
(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
subord
inate
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superseded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
.
Page
9 14 of 22
February 20, 2024, Item #8
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 provisions 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.
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]
15 of 22
February 20, 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
CITY OF POWAY,
a municipal corporation
By:--------------
Chris Hazeltine
City Manager
POME BESS LLC,
a Delaware limited liability company
By:--------------
Hans-Christian Schulze
President
16 of 22
February 20, 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
17 of 22
February 20, 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: _____________ _
18 of 22
February 20, 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
Page
14 19 of 22
February 20, 2024, Item #8
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT LAND
The Project Land 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-~ 3, 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
EXHIBIT A
20 of 22
February 20, 2024, Item #8
EXHIBIT B
LEGAL DESCRIPTION AND DEPICTION OF ENCROACHMENT AREA
LEGAL DESCRIPTION AND
DEPICTION OF ENCROACHMENT
POME 8£55 LLC
A DELAWARE UM/TED LIABILITY COMPANY
LOT 47 & P/0 LOT 48
fRACT NO. 87-1 J, UNfT NO. 1
PER MAP NO. 12556, DATED FEB. 8, 1990
CITY OF POWAY, COUNTY OF SAN DIEGO,
STA TE OF CALIFORNIA
SECTION 19, TOWNSHIP 14 SOUTH, RANG£ I WEST
LEGAL DESCRIPTION:
[
t0weOr ....
0 'A
1 Blaisdell p
Q.
PRO!ECT
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-1NAY LINE OF SAID BLAISDELL PLACE; THENCE N88'26'02"E ALONG SAID NORTH RIGHT-OF-WAY LINE A DISTANCE OF 12.01 FEET TO THE POINT OF BEGINNING AND NORTHWEST CORNER;
THENCE, N88"26'02"E, A DISTANCE OF 30.03 FEET TO THE NORTHEAST CORNER; THENCE, so1·00·1s"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, S88'26'02'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
EXHIBITS
21 of 22
February 20, 2024, Item #8
LEGAL DESCRIPTION AND
DEPICTION OF ENCROACHMENT
SURVEYOR NOTES:
( ) INDICATES RECORD DATA PER MAP No. 12556
POME BESS LLC
A DELA WARE LIMITED LIABILITY COMPANY
LOT 47 & P/0 LOT 48
TRACT NO. 87-1.J, UNIT NO. T
PER MAP NO. I 2556, DA TED FEB. 8, 1990
CITY OF POWAY, COUNTY OF SAN DIEGO,
STAT£ OF CALIFORNIA
P.O.B. POINT OF BEGINNING
~-~' EASEMENT AREA
LINE TABLE
SECTION T 9, TOWNSHIP 14 SOUTH, RANG£ ! WEST LINE BEARING LENGTH L1 N88'26'02"E
L2 N88'26'02"E
L3 S01 °00'1 S"W
L4 S88'26'02"W
L5 N01 '00'·l8"E
LOT 31
i
APN: 317-810-33-00
SAN DIEGO GAS &
ELECTRIC COMPANY
LOT 31, 30, & 29
SUBMAP NO. 12556
;.. ,._
t,? ,_ 0
VJ oJ
PIO
LOT48
LOT47
I (J i's
12' PUBLIC UTILITY EASEMENT
SAN DIEGO GAS & ELECTRIC CO.
INST. NO. 1990-018787 O.R.
P.O . .B.
APN: 317-810-36-00
LOT 47 & PIO LOT 48
MAP NO. 12556
1.70ACRES
::.::::.::
i' 1'
/i..,,.--
/
'
:::=: 1 L4-=:::::::=-_ ~
-----.:;::--.
APN· 3178101500
-. _ r-24' PUBLIC UTILITY EASEMENT ---.:::.--::-_-
----SAN DIEGO GAS & ELECTRIC CO. -
INST. NO. 199D-018787 O.R.
LE<3END:
ALL OF LOTS 52, 53, & 54
SHULTZ REAL ESTATE
REC. No. 1998-0365588
-------SUBJECT PARCEL BOUNDARY GO 30
-------EASEMENTBOUNDARY
- -
- -EXISTING EASEMENTS
0 60
"'--':::
~
-----CENTERLINEOFROADWAY Gi<.~.PHIC SCH.E IN FEET
-::::~
120
12.01'
30.03'
49.05'
30.03'
49.05'
181
SHEET 2 OP 2
EXHIBITS
22 of 22
February 20, 2024, Item #8
ATTACHMENT B