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February 20, 2024, Item #8
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PQ RT City of Poway
February 20, 2024
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Services .µt.
Wendy Kaserman, Assistant City Manager I.JI,{
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 At the January 16, 2024 City Council meeting, the City Council considered the approval of an encroachment agreement between the City and Pome BESS, LLC for long term encroachment of the public right of water for the installation of an underground generation tie (Gen-Tie) line as part of the Development Review (DR) 23-0007, which was previously approved by City staff, to construct and operate 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.
During the discussion on the item at the January 16, 2024 meeting, the City Council expressed concern over the lack of public benefits associated with the proposed battery storage facility that would justify long term encroachment into the City's right of way. The City Council voted not to approve the agreement. Following the meeting, City Staff met with representatives from the Pome BESS project and the terms of the proposed encroachment agreement have been revised to deliver more community benefits. The revised terms include a significant increase in the annual payment to the City, a minimum guarantee of new property tax revenue, and a significant capital contribution to improvements at Community Park as identified in the recently completed Community Park Needs Assessment.
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 2 of 22
February 20, 2024, Item #8
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 (legal nonconforming) automobile towing and storage business approved under Conditional Use Permit (CUP) 95-1 O and CUP 95-1 OM. The applicant submitted for a DR 23-0007 application in June of 2023, an 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 the automobile towing company will be automatically revoked. The conditions in the DR approval address 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 1,471 square feet of the public right-of-way and per the terms of the agreement pay the City an annual fee of $67.98 per square foot, initially $100,000 per year. This is an increase of just over $91,000 annually in unrestricted General Fund revenue from the initially proposed encroachment agreement terms. This amount will be adjusted annually for inflation and be due in January of each year. It is anticipated, once all improvements are made and installed on the property, the assessed valuation of the property will increase and in turn the City will see an increase in annual property tax. Per the terms of the revised encroachment, Pome BESS is guaranteeing at least $50,000 in property tax revenue for the first twenty years of the project. The agreement provides for an annual look back and if the City does not receive at least $50,000 in property tax each year, Pome BESS will pay the City the difference between what was received in property tax and $50,000. The revised annual fee and guaranteed property tax provide for $150,000 in unrestricted General Fund revenue. There are also provisions in the agreement that Pome BESS will, to the extent legally possible, work to designate the project property as the point of sale or register the project property as the business location for sales and use tax purposes so the City will benefit from these taxes if legally permitted.
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February 20, 2024, Item #8
The Pome BESS representatives heard the City Council's concerns regarding community benefit and as part of the revised encroachment agreement have pledged a one-time contribution of $500,000 toward improvements at Community Park as identified in the recently completed Community Park Needs Assessment.
Po me 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 also 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.
Fiscal Impact:
There are three components to the fiscal impact of the proposed encroachment agreement. If approved, the encroachment will generate an annual fee of $100,000 for the duration of the agreement which will be adjusted annually for inflation. For the initial five-year period of the agreement this will generate $500,000 in unrestricted General Fund revenue plus annual inflation adjustments. If all extensions provided for in the agreement are exercised, the City will receive $3,500,000 in annual fee revenue over the thirty-five-year period, plus annual inflation adjustments.
Additionally, as discussed in the report, Pome BESS is guaranteeing $50,000 annually in property tax revenue for the first twenty years of the agreement. Over the twenty-year period this represents at least an additional $1,000,000 in unrestricted General Fund revenue to the City. Lastly, per the terms of the agreement, Pome BESS will make a one-ti me contribution of $500,000 towards improvements at Community Park, as identified in the recently completed Community Park Needs Assessment.
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 4 of 22
February 20, 2024, Item #8
regarding the DR.
Attachments:
A. Agreement for Long Term Encroachment of Public Right-of-Way B. Pome BESS Site Plan
Reviewed/Approved By:
Wendyaserman
Assistant City Manager
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
City Manager
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February 20, 2024, Item #8
ATTACHMENT A
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 LONG TERM
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 lessee and 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 Land"), for the purposes of developing an energy storage facility (the "Project" and, the Project Land and the improvements that comprise the Project, collectively, the "Project Property").
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 Land 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
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February 20, 2024, Item #8
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 (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 will include a total of 1,471 square feet of occupation and use of the City's right-of-way. Use of the entirety of the Encroachment Area will only be required for the temporary construction period. Following this, Pome BESS will only be occupying 147.15 square feet within the Encroachment Area for the remainder of the Term (as defined below) in an underground location, 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 therein. 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.
WHEREAS, the use of the Project Land for purposes of energy storage will provide public benefits to the community and the City. The Project, among other things, will serve as back-up power to the City during emergency and power shortage events.
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 approximately $67.98 per square foot, for a total of One Hundred Thousand Dollars ($100,000.00) 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.
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February 20, 2024, Item #8
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, 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.
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February 20, 2024, Item #8
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 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 Page4
9 of 22
February 20, 2024, Item #8
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.
15. Sales,
Use
and
Property
Tax
Covenant.
a.
During
the
Term,
to
the
extent
feasible
and
allowed
by
applicable
law,
Pome
BESS
shall
work
in
good
faith
to
either
appropriately
designate
the
Project
Property
as
the
point
of
sale
or
register
the
Project
Property
as
the
business
location
for
sales
and
use
tax
purposes
under
the
relevant
equipment
supply
contracts
to
which
it is
a
party,
to
the
extent
legally
appropriate.
b.
Beginning
with
the
first
full
City
fiscal
year
following
completion
of
the
Project,
and
for
subsequent
nineteen
(19)
City
fiscal
years
of
Project
operation
("Tax
Term"),
it
is
anticipated
the
City
will
receive
at
least
Fifty
Thousand
Dollars
($50,000.00)
per
City
fiscal
year
in
property
taxes
related
to
the
Project
Property
("City
Property
Taxes").
On
the
15 th
day
of
each
August
of
each
calendar
year
during
the
Tax
Term,
the
City
shall
provide
Pome
BESS
with
an
accounting,
identifying
the
amount
of
City
Property
Taxes
received
in
relation
to
the
Project
Property
as
authenticated
by
the
San
Diego
County
Treasurer-Tax
Collector's
("County
Collector'')
records.
If
the
City
determines
that
amount
of
City
Property
Taxes
collected
is
less
than
Fifty
Thousand
Dollars
($50,000.00)
for
any
fiscal
year
during
the
Tax
Term,
the
City
shall
invoice
Pome
BESS
for
the
remainder
amount
(i.e
.,
$50,000
.00
less
the
amount
of
City
Property
Taxes received)
and
provide
Pome
BESS
with
the
information
relied
upon
by
the
City
in
making
such
determination
(to
the
extent
such
disclosure
is
not
prohibited
by
law).
Pome
BESS
shall
have
thirty
(30)
days
to
either
remit
payment
to
the
City's
Finance
Director
or
provide
any
comments
or
additional
information
to
the
City
regarding
the
amount
of
the
City
Property
Taxes,
which
the
City
shall
consider
in
good
faith.
No
later
than
thirty
(30)
days
following
the
receipt
of
any
such
information
from
Pome
BESS,
the
City
shall
notify
Pome
BESS
in
writing
whether
its
determination
of
the
City
Property
Taxes
has
changed
and,
if
so,
issue
a
revised
invoice
to
Pome
BESS.
Pome
BESS
will
remit
payment
to
the
City's
Finance
Director
within
thirty
(30)
days
of
receipt
of
such
notice.
c.
Pome
BESS
shall
timely
report
and
pay
all
property
taxes
to
the
County
Collector
in
accordance
with
the
laws,
rules
and
regulations
applicable
to
such
reporting.
d.
City
Property
Taxes
shall
be
deemed
to
have
been
received
by
the
City
if and
to
the
extent
the
County
Collector
elects
to
offset
the
payment
of
any
such
City
Property
Taxes
against
any
other
obligations
of
the
City.
e.
City
Property
Taxes
shall
be
determined
based
on
actual
amounts
received
by
the
City
, which
for
the
purposes
of
this
Agreement
shall
not
include
Page
5 10 of 22
February 20, 2024, Item #8
amounts
received
by
City
as
the
"Successor
Agency"
to
the
Poway
Redevelopment
Agency
pursuant
to
ABx1
26 and
AB
1484,
based
only
on
the
City's
share
of
the
tax
applicable
to
the
Project
Property
within
each
City
fiscal
year.
City
Property
Taxes
from
the
Project
Property
shall
not
include
amounts
paid
to
the
City
by
the
County
Collector
derived
from
any
tax
overrides
or
special
tax
amount
received
by
the
City,
and
any
administrative
fees
or
charges
imposed
by
the
County
Collector
shall
not
be
taken
as
a
deduction
against
the
computation
of
the
City
Property
Taxes
.
16. Within
ninety
(90)
days
of
the
City
's
issuance
of
all
permits
and
approvals
necessary
for
commencement
of
construction
of
the
Project,
including
within
the
Encroachment
Area,
Pome
BESS
shall
cause
to
be
contributed
a
one-time
donation
to
the
City's
Finance
Director
in
the
amount
of
Five
Hundred
Thousand
Dollars
($500
,000.00)
to
fund
the
revitalization
of
the
Poway
Community
Park
located
at
13094
Civic
Center
Drive
in
the
City
of
Poway,
State
of
California
. The
parties
agree
to
cooperate
in
good
faith
to
prepare
and
process
the
appropriate
documentation
for
this
contribution
, including
by
providing
such
documentation
reasonably
requested
by
a
party
for
tax
reporting
purposes
.
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
street.
Pome
BESS
shall
install
a
locator
wire
in
connection
with
its
construction
of
the
Project
Gen-Tie
Offsite
Improvements.
Page
6 11 of 22
February 20, 2024, Item #8
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 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 under 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 Land. 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 Land 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.
12 of 22
February 20, 2024, Item #8
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: City of Poway
Attn: City Manager
13325 Civic Center Drive
Poway, California 92064
If to Pome BESS: 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.
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
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