Agenda packet — Poway City Council, August 20, 2024

AG EN DA Poway City Council
Coun cil Cha mber I 13325 Civ ic Cente r Dri ve I Poway , CA I 920 64 August 20, 2024 I 7 p.m.

Thank you for participating in your local government and the City of Poway Council meetings.

Meetings I Regular City Council meetings are held on the first and third Tuesday of the month at 7:00 p.m. in the Council Chambers located at 13325 Civic Center Drive, Poway, CA 92064. The Council Chamber will be open to the public.

Public Meeting Access I Members of the public may attend the City Council meeting in person, or watch the City Council meeting live online . Regular City Council meetings are broadcast live on Cox Communication Channel 24 and Spectrum Channel 19. Council meeting videos are archived and available for viewing on the City's website .

Speakers I Persons wishing to address the Council on matters not on the agenda may do so under Public Comment. Those wishing to speak on items on the agenda may do so when the item is being considered. Please submit a Speaker's Slip to the City Clerk prior to the meeting or the announcement of the item . All comments will be limited to three (3) minutes. Per the Poway Municipal Code, the speaking time may be reduced.

To Watch Live:
www.poway.org/councilmeetings
Agenda Materials I This agenda contains a brief summary of each item the Council will consider.

The Agenda and Agenda Packet is posted seven (7) days prior to regular City Council meetings and are available for viewing on the City's website at www .poway.org. Sign up at https://poway .org/list.asp x to receive email notifications when City Council agendas are published online. Items listed on the agenda with a "#" symbol are in preparation.

PLEASE NOTE: Written comments received via email before 3:00 p.m. the day prior to the meeting will be distributed as formal additional material as well as b_e made available online prior to the City Council meeting. Written comments received after this deadline will be forwarded to the Council, but not available online until after the City Council meeting.

American Disabilities Act Title II I In compliance with the Americans with Disabilities Act of 1990, persons with a disability may request an agenda in appropriate alternative formats as required by Title II. Any person with a disability who requires a modification or accommodation in order to participate in a meeting should direct such request to the City Clerk's office 858-668-4530 at least 24 hours prior to the meeting .

Steve Vaus
Mayor
Caylin Frank
Deputy Mayor
Peter De Hoff
Council member
Anita Edmondson
Council member
Brian Pepin
Councilmember
Reminder I As a courtesy to all attendees, please silence all electronic devices and engage in conversations outside the Council Chambers.

The City Council also sits as the City of Poway Planning Commission, Poway Housing Authority, Public Financing Authority and Successor Agency to the Poway Redevelopment Agency CALL TO ORDER:

ROLL CALL:

PLEDGE OF ALLEGIANCE:

MOMENT OF SILENCE:

PRESENTATION: None
PUBLIC COMMENT: In accordance with State law, an item not scheduled on the agenda may be brought forward by the general public for comment; however, the City Council will not be able to discuss or take action on any issue not included on the agenda. You may speak up to three (3) minutes.

Per the Poway Municipal Code, the speaking time may be reduced. Speakers have one opportunity to address the Council under Public Comment.

CONSENT CALENDAR: The Consent Calendar may be enacted in one motion by the Council with a Roll Call Vote without discussion unless a Councilmember , a member of the publ ic, or City Manager requests that an item be removed for discussion.

1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda

2. Award of Agreement to Yun ex LLC, DBA Yun ex Traffic for Street Lighting, System Maintenance and Emergency Repairs; Bid No. 25-002

3. Award of Contract to M-Rae Engineering, Inc. for the FY 2023-24 Water Valve Replacement Project, Bid No. 25-001, and Determination the Project is Categorically Exempt from the California Environmental Quality Act

4. Author ization to Purchase Two (2) Light-Duty Ford Explorer Chief Officer Emergency Vehicles Utilizing California Department of General Services State Contract #1-22-23-23F and Emergency Response Equipment Upfitting by Open Market Competitive Bid ORDINANCES FOR INTRODUCTION: None
PUBLIC HEARINGS:

5. Consideration of Specific Plan Amendment (SPA) 22-0002 and Development Review (DR) 22-0001 to Allow the Construction of a Battery Energy Storage System (BESS) Facility located at 13501 Kirkham Way; Addendum to South Poway Specific Plan Environmental Impact Report (EIR) and Subsequent Environmental Impact Reports (SEIRs); and a Community Benefit Agreement 2 of 3 Regular City Council Meeting August 20, 2024
City Manager's Recommendation: It is recommended the City Council take public input, close the public hearing, and adopt the Resolution to approve the Addendum to the certified SPSP EIR and SEIRs; introduce the Ordinance approving SPA 22-0002 for first reading by title only, waive further reading, and schedule the adoption for the next regularly scheduled meeting; adopt the Resolution approving DR 22-0001; and adopt the Resolution approving the Community Benefit Agreement.

STAFF REPORTS:

6. Award of Agreement to Cheeseburgers in Poway, LLC to Operate the Lake Poway Concession; RFP #24-025
City Manager's Recommendation: It is recommended the City Council award the Agreement to Cheeseburgers in Poway, LLC, to operate the Lake Poway Concession and authorize the City Manager to execute the agreement.

WORKSHOPS: None
COUNCIL-INITIATED ITEMS: None
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 - (G.C. 53232(d)) CITY MANAGER ITEMS:

CITY ATTORNEY ITEMS: (Including any public report of any action taken in closed session) CLOSED SESSION:

7. Conference with Labor Negotiators - (Government Code§ 54957.6) Designated City Representatives: Chris Hazeltine, Wendy Kaserman, and Jodene Dunphy Employee Organization: Poway Firefighters' Association
AD!OURNMENT:

State of California
County of San Diego
)
) ss.
)

AFFIDAVIT OF POSTING
I, Carrie Gallagher, CMC, City Clerk of the City of Poway hereby declare under penalty of perjury that this notice of a Regular meeting as called by the City Council of the City of Poway was posted and provided on August 13, 2024.

Said meeting to be held at 7:00 p.m., August 20, 2024, in the Poway City Council Chambers, 13325 Civic Center Drive, Poway, California. Said notice was posted on the Bulletin Board at the entrance to City Hall. i/(.4~~
Carrie Gallagher, CMC,Citycter
3 of 3 Regular City Council Meeting August 20, 2024
August 20, 2024, Item #2
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AGENDA RE PO RT City of Poway

CITY COUNCIL
August 20, 2024
Honorable Mayor and Members of the City Co~~cil
Eric Heidemann, Director of Public Works { !) y
Will Wiley, Assistant Director of Public Works for Maintenance Operations (858) 668-4705 or [email protected]
Award of Agreement to Yunex LLC, OBA Yunex Traffic for Street Lighting, System Maintenance and Emergency Repairs; Bid No. 25-002
A request for bid (RFB) for Street Lighting, System Maintenance and Emergency Repairs, Bid No. 25- 002 was duly advertised on June 13 and June 20, 2024. Three (3) bids were received and publicly opened on July 11, 2024. Staff reviewed the bids submitted and determined Yunex LLC, OBA Yunex Traffic (Yunex Traffic) to be the lowest responsible bidder. The length of this agreement shall be for two (2) years beginning on August 21, 2024, through July 31, 2026. The agreement can be extended by a maximum of three (3) one-year terms.

Recommended Action:

It is recommended the City Council award the agreement for Street Lighting, System Maintenance and Emergency Repairs, Bid No. 25-002 to Yunex LLC, OBA Yunex Traffic and authorize the City Manager to execute the necessary documents.

Discussion:

There is a continuing need for street lighting, system maintenance, and emergency repairs throughout the City. The City of Poway (City) currently owns and operates approximately 3,945 street lights which are an invaluable part of the City's street network, illuminating the roadway and providing safety lighting for drivers, cyclists and pedestrians.

Under the agreement, Yunex Traffic will provide general maintenance for all existing street lighting equipment including street light lamps, parking lot lamps, ballasts, photoelectric control repairs and replacements. Additionally, Yunex Traffic will provide routine maintenance for each street light and associated fixture to verify proper electrical connection and structural integrity, complete emergency work to repair or replace damaged equipment and install new street lights. The following table includes the results from the three (3) bids received:
1 of 11
August 20, 2024, Item #2
Table
1 Total
Bid:

BIDDER
BID
AMOUNT
Yunex
LLC,
DBA
Yunex
Traffic
$50,575
Bear
Electrical
Solutions
$119,066.40
Amtek
Construction
$176,223
.84
The
bid
consisted
of
various
cost
items,
such
as
costs
for
preventive
maintenance
, equipment,
parts,
poles,
lamps
and
labor
rates
.

Staff
recommends
the
agreement
for
street
lighting,
system
maintenance
and
emergency
repairs
be
awarded
to
Yunex
Traffic.

The
length
of
the
initial agreement
is
two
(2)
years
beginning
August
21,
2024,
through
July
31,
2026.

The
agreement
may
be
extended
subject
to
Council
appropriation
of
funds
through
a
total
of
three
(3)
one-year
terms.

The
maximum
length
of
the
agreement
would
be
up
to
five
(5)
years.

Environmental
Review:

This
action
is
not
subject
to
review under
the
Cal
ifornia
Environmental
Quality
Act
(CEQA).

Fiscal
Impact:

Sufficient
funds
are
available
in
the
Fiscal
Year
2024-2025
operating
budget
Lighting
District
Division
account
(430050-43260)
.

Public
Notification:

None. Attachments: A.

Construction
Contract
Reviewed/Approved
By:

Assistant
City
Manager
2 of
11 Reviewed
By
:

Alan
Fenstermacher
City
Attorney
Chris
Haz
•
City
Manager
August 20, 2024, Item #2

CONSTRUCTION CONTRACT

CITY OF POWAY

STREET LIGHTING, SYSTEM MAINTENANCE AND EMERGENCY REPAIRS This Contract made and entered into this 21st day of August 2024, by and between City of Poway, a municipal corporation of the State of California, hereinafter referred to as "City" and Yunex LLC, OBA Yunex Traffic, hereinafter referred to as "Contractor." The City and the Contractor, for the consideration hereinafter named, mutually agree as follows:

1. The complete Contract includes all of the Contract Documents, which are incorporated herein by this reference, and include:
a. This Contract
b. Contract Addenda
c. Contract Change Orders
d. Instructions to Bidders, Proposal Requirements and Conditions e. Contract Specifications
f. Contract Plans
g. General Condition
h. Special Conditions
i. Standard Specification for Public Works, most current edition,

2. The Contract Documents are complementary, and that which is required by one shall be as binding as if required by all.

4. Contractor agrees to perform all the said work and furnish all the said materials at his own cost and expense that are necessary to construct and complete in strict conformance with Contract Documents and to the satisfaction of the City Engineer, the work hereinafter set forth in accordance with the Contract adopted by the City Council.

5. City agrees to pay, and Contractor agrees to accept in full payment for performance of this work of improvement as described, the stipulated not-to-exceed sum of fifty 3 of 11 ATTACHMENT A
August 20, 2024, Item #2
thousand, five hundred and seventy-five dollars and zero cents ($50,575.00) the "Contract Price."

6. Contractor shall begin work within 15 (fifteen) days after the start date indicated in the Maintenance Notice to Proceed. The Contractor shall begin any Extra Work performed under Section 12 of the Contract Specifications within five (5) days after the start date indicated in the applicable Extra Work Notice to Proceed. Should the City fail to issue a Notice to Proceed, said Notice shall be deemed given upon the date of mailing to the Contractor of the full executed Contract (in the case of maintenance work) or Change Order (in the case of Extra Work). The Contractor shall diligently prosecute the maintenance work to completion from the date of said Maintenance Work Notice to Proceed. The Contractor shall diligently prosecute the Extra Work under Section 12 to completion within the numbers of days set forth in the Extra Work Notice to Proceed. Regardless of whether the Contractor begins work on the date specified above or not, the Contract time shall begin on that date unless a written extension of time has been granted by the Project Manager pursuant to Section 6-6 of the Standard Specification.

7. In the case of Extra Work performed, time is of the essence of this Contract, and it is agreed that it would be impracticable or extremely difficult to ascertain the extent of actual loss or damage which the City will sustain by reason of any delay in the performance of this Contract. It is, therefore, agreed that Contractor will pay as liquidated damages to the City the following sum: Five Hundred Dollars ($500) per Calendar Day, for each and every Calendar Days delay in finishing the Work in excess of the number of Working Days prescribed above. If liquidated damages are not paid, as assessed by the City, the City may deduct the amount thereof from any money due or that may become due the Contractor under this Contract in addition to any other remedy available to City. By executing this Contract, Contractor agrees that the amount of liquidated damages is reasonable and shall not constitute a penalty.

8. In accordance with State of California Senate Bill No. 854, Contractor will maintain and will require all subcontractors to maintain valid and current Department of Industrial Relations (DIR) Public Works Contractor registration during the term of this project. Contractor shall notify the City in writing immediately, and in no case more than twenty-four (24) hours, after receiving any information that Contractor's or any of its Subcontractor's DIR registration status has been suspended, revoked, expired, or otherwise changed.

9. Contractor will pay, and will require all subcontractors to pay, all employees on said Contract a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations and wage standards applicable to this work, a copy of which is on file in the office of the City Clerk of the City of Poway. Federal prevailing wage rates apply for federally funded projects.

Travel and subsistence pay shall be paid in accordance with Labor Code§ 1773.1. 4 of 11
August 20, 2024, Item #2

10. Contractor shall be subject to the penalties in accordance with Labor Code of § 1775 for each worker paid (either by him or by any subcontractors under him) less than the prevailing rate described above on the work provided for in this Contract. 11 . Contractor and subcontractors shall comply with Labor Code § 1810 and § 1811 which stipulates that eight hours labor constitutes a legal day's work, and § 1812 which stipulates that the Contractor and subcontractors shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed by him in connection with the work performed under the terms of the Contract. Failure to comply with these sections of the Labor Code will subject the Contractor to penalty and forfeiture provisions of the Labor Code§ 1813.

12. Contractor will comply with the provisions of Labor Code§ 1777.5 pertaining to the employment of apprentices to the extent applicable to this Contract.

13. Contractor, by executing this Contract, hereby certifies:
"I am aware of and will comply with the Labor Code § 3700 by securing payment for and maintaining in full force and effect for the duration of the contract, complete Workers' Compensation Insurance, and shall furnish a Certificate of Insurance to the City before execution of the Contract. The City, its officers, or employees, will not be responsible for any claims in law or equity occasioned by failure of the Contractor to comply with this paragraph."
Contractor further agrees to require all subcontractors to carry Workers' Compensation Insurance as required by the Labor Code of the State of California.

14. Contractor shall, concurrent with the execution of this Contract, furnish two bonds approved by the City, one in the amount of One Hundred Percent (100%) of the Contract Price, to guarantee the faithful performance of the work ("Performance Bond"), and one in the amount of One Hundred Percent (100%) of the Contract Price to guarantee payment of all claims for labor and materials furnished ("Payment Bond"). This Contract shall not become effective until such bonds are supplied to and approved by the City.

15. 5 of 11
a. Contractor shall procure and maintain at its own expense, until completion of performance, commercial general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss or damage resulting from the wrongful or negligent acts by the Contractor or its officers, employees, servants, volunteers and agents and independent contractors.

Contractor shall provide insurance on an occurrence, not claims-made basis.

Contractor acknowledges and agrees that, for purposes of clarification with the August 20, 2024, Item #2
6 of
11 intention
of
avoiding
gaps
in
coverage
with
any
umbrella
or
excess
insurance,
personal
and
advertising
injury
coverage
shall
be
triggered
by
an
"offense"
while
bodily
injury
and
property
damage
coverage
shall
be
triggered
by
an
"occurrence"
during
the
policy
period.
b.

Contractor
shall
further
procure
and
maintain
at
its
own
expense,
until
completion
of
performance,
commercial
vehicle
liability
insurance
covering
personal
injury
and
property
damage,
of
not
less
than
One
Million
Dollars
($1,000,000)
combined
single
limit
per
occurrence,
and
Two
Million
Dollars
($2,000,000)
in
the
aggregate,
covering
any
vehicle
utilized
by
Contractor
or
its
officers,
employees,
servants,
volunteers
and
agents
and
independent
contractors
in
performing
the
services
required
by
this
Agreement.
c.

Contractor
shall
further
procure
and
maintain
at
its
expense,
until
completion
of
performance,
workers' compensation
insurance
providing
coverage
as
required
by
the
California
State
Workers'
Compensation
Law.

If
any
class
of
employees
employed
by
the
Contractor
pursuant
to
this
Agreement
is
not
protected
by
the
California
State
Workers'
Compensation
Law,
Contractor
shall
provide
adequate
insurance
for
the
protection
of
such
employees
to
the
satisfaction
of
the
City.

This
provision
shall
not
apply
if Contractor
has
no
employees
performing
work
under
this
Agreement.

Contractor
agrees
to
waive
its
statutory
immunity
under
any
worker's
compensation
or
similar
statute,
as
respecting
the
City,
and
to
require
any
and
all
subcontractors
and
any
other
person
or
entity
involved
with
the
Project
to
do
the
same
.

Worker's
Compensation
Insurance:
o
Contractor
has
no
employees
and
is
exempt
from
workers'
compensation
requirements.
o
Contractor
carries
workers'
compensation
insurance
for
all
employees.
d.

All
policies
required
by
this
section
shall
be
secured
from
insurers
authorized
to
do
business
in
the
State
of
California
with
an
"A"
policyholder's
rating
or
better
and
a financial
rating
of
at
least
Class
VII,
in
accordance
with
the
current
Best's
Ratings. e.

Contractor
agrees
to
require
that
all
parties,
including
but
not
limited
to
subcontractors,
architects,
engineers
or
others
with
whom
Contractor
enters
into
contracts
or
whom
Contractor
hires
or
retains
pursuant
to
or
in
any
way
related
to
the
performance
of
this
Agreement,
provide
the
insurance
coverage
required
herein,
at
minimum,
and,
except
for
worker's compensation
coverage,
name
as
additional
insureds
the
parties
to
this
Agreement.

Contractor
agrees
to
monitor
and
review
all
such
coverage
and
assumes
all
responsibility
for
ensuring
that
such
coverage
is
provided
in
conformity
with
the
requirements
of
this
Section.
f.

In
the
event
this
Agreement
is
terminated
for
any
reason
prior
to
the
completion
of
all
obligations
and
requirements
of
this
Agreement,
Contractor
agrees
to
maintain
all
coverages
required
herein
until
the
City
provides
written
authorization
August 20, 2024, Item #2

16. 7
of
11 to
terminate
the
coverages
following
the
City's
review
and
determination
that
all
liability
posed
under
this
Agreement
as
to
the
party
providing
insurance
has
been
eliminated. g.

Contractor
agrees
and
acknowledges
that
if
it
fails
to
obtain
all
of
the
insurance
required
in
this
Agreement
in
accordance
with
the
requirements
herein,
or
to
obtain
and
ensure
that
the
coverage
required
herein
is
maintained
by
any
subcontractors
or
others
involved
in
any
way
with
the
Project,
Contractor
shall
be
responsible
for
any
losses,
claims,
suits,
damages,
defense
obligations,
or
liability
of
any
kind
or
nature
attributable
to
the
City,
and/or
its
officers,
employees,
servants,
volunteers,
agents
and
independent
contractors,
that
result
from
such
failure
by
Contractor. a.

Contractor
shall
provide
certificates
of
insurance
with
original
endorsements
to
the
City
as
evidence
of
the
insurance
coverage
required
herein.

Certificates
of
such
insurance
shall
be
filed
with
the
City
on
or
before
commencement
of
performance
of
this
Agreement.

Current
certification
of
insurance
shall
be
kept
on
file
with
the
City
at
all
times
until
completion
of
performance
and
acceptance
by
the
City. b.

Notwithstanding
any
inconsistent
statement
in
any
required
insurance
policies
or
any
subsequent
endorsements
attached
thereto,
the
commercial
general
liability
and
commercial
vehicle
liability
policies
shall
bear
endorsements
whereby
it
is
provided
that
the
City,
and
its
officers,
employees,
servants, volunteers,
agents
and
independent
contractors
are
named
as
additional
insureds.

Additional
insureds
shall
be
entitled
to
the
full
benefit
of
all
insurance
policies
in
the
same
manner
and
to
the
same
extent
as
any
other
insureds
and
there
shall
be
no
limitation
to
the
benefits
conferred
upon
them
other
than
policy
limits
to
coverages.
c.

Contractor
shall
require
the
carriers
of
all
required
insurance
policies
to
waive
all
rights
of
subrogation
against
the
City,
and
its
officers,
employees,
servants,
volunteers,
agents
and
independent
contractors.
d.

Each
policy
required
herein
must
be
endorsed
to
provide
that
the
policy
shall
not
be
cancelled
in
coverage
or
limits
(except
by
paid
claims)
unless
the
insurer
has
provided
the City
with
30 days
prior
written
notice
of
cancellation.

Contractor
agrees
to
provide
the
City
with
30 days
written
notice
prior
to
any
non-renewal
or
reduction
in
coverage
or
limits.
e.

All
insurance
policies
required
to
be
provided
by
Contractor
or
any
other
party
must
be
endorsed
to
provide
that
the
policies
shall
apply
on
a
primary
and
noncontributing
basis
in
relation
to
any
insurance
or
self-insurance,
primary
or
excess,
maintained
or
available
to
the
City,
and
its
officers,
employees,
servants,
volunteers,
agents
and
independent
contractors.

August 20, 2024, Item #2

17. a.

Contractor
shall
defend,
indemnify
and
hold
harmless
the
City,
its
officers,
officials,
agents,
employees
and
volunteers
from
and
against
any
and
all
claims,
demands,
actions,
losses,
damage,
injuries,
and
liability,
direct
or
indirect
(including
any
and
all
costs
and
expenses
in
connection
therewith)
to
the
extent
actually
caused
by
the
negligence
of
Contractor,
Contractor's
employees,
subcontractors or
independent
contractors
except
for
any
such
claim
arising
out
of
the
negligence
or
willful
misconduct
of
the
City,
or
its
officers,
agents,
employees
or
volunteers.
b.

The
City
does
not,
and
shall
not,
waive
any
rights
that
it
may
have
against
Contractor
under
this
Section
because
of
the
acceptance
by
the
City,
or
the
deposit
with
the
City,
of
any
insurance
policy
or
certificate
required
pursuant
to
this
Agreement.

The
hold
harmless,
indemnification
and
duty
to
defend
provisions
of
this
Section
shall
apply
regardless
of
whether
or
not
said
insurance
policies
are
determined
to
be
applicable
to
the
claim,
demand,
action,
damage,
liability,
loss,
cost
or
expense
described
herein.

18. Any
amendments
to
any
of
the
Contract
Documents,
including
but
not
limited
to
Contract
Change
Orders,
must
be
in
writing
executed
by
the
Contractor
and
the
City.

Any
time
an
approval,
time
extension,
or
consent
of
the
City
is
required
under
the
Contract
Documents,
such
approval,
extension,
or
consent
must
be
in
writing
in
order
to
be
effective.

19. The
Contract
Documents
contain
all
of
the
agreements
and
understandings
of
the
parties
and
all
previous
understandings,
negotiations,
and
contracts
are
integrated
into
and
superseded
by
this
Contract.

20. In
the
event
that
any
one
or
more
of
the
phrases,
sentences,
clauses,
paragraphs,
or
sections
contained
in
this
Contract
shall
be
declared
invalid
or
unenforceable
by
a
valid
judgment
or
decree
of
a
court
of
competent
jurisdiction,
such
invalidity
or
unenforceability
shall
not
affect
any
of
the
remaining
phrases,
sentences,
clauses,
paragraphs, or
sections
of
this
Contract
which
are
hereby
declared
as
severable
and
shall
be
interpreted
to
carry
out
the
intent
of
the
parties
hereunder.

21. The
persons
executing
this
Contract
on
behalf
of
the
parties
hereto
warrant
that
they
are
duly
authorized
to
execute
this
Contract
on
behalf
of
said
parties
and
that,
by
so
executing
this
Contract,
the
parties
hereto
are
formally
bound
to
the
provisions
of
this
Contract.

22. This
Contract
shall
be
binding
upon
and
shall
inure
to
the
benefit
of
the
parties
hereto
and
their
respective
heirs,
personal
representatives,
successors,
and
assigns.

23. In
performing
its
obligations
and
duties
under
this
Contract,
each
party
shall
comply
with
all
applicable
local,
state,
and
federal
laws,
regulations,
rules,
standards
and
ordinances.
8 of
11 August 20, 2024, Item #2

24. This Contract may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

25. After completion of the work contemplated by this Contract, Contractor shall file with the City Manager an affidavit stating that all workers and persons employed, all firms supplying materials, and all subcontractors upon the project have been paid in full, and that there are no claims outstanding against the project for either labor or materials, except certain items, if any, to be set forth in an affidavit covering disputed claims or items in connection with a Stop Notice that has been filed under the provision of the laws of the State of California.

26. All work shall be subject to inspection and testing by City and its authorized representatives during manufacture and construction and all other times and places, including, without limitation, the plans of Contractor and any of its suppliers.

Contractor shall provide all reasonable facilities and assistance for the safety and convenience of inspectors. All inspections and tests shall be performed in such manner as to not unduly delay the work. The Work shall be subject to final inspection and acceptance notwithstanding any payments or other prior inspections.

Such final inspection shall be made with a reasonable time after completion of the work.

27. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the Contract, Contractor shall immediately give notice thereof, including all relevant information with respect thereto, to City.

28. Contractor agrees to contact the appropriate regional notification center in accordance with Government Code Section 4216.2.

29. Contractor shall submit its detailed plan for worker protection during the excavation of trenches required by the scope of the work in accordance with Labor Code Section 6705.

30. 9 of 11
a. Contractor shall, without disturbing the condition, notify City, in writing, as soon as Contractor, or any of Contractor's subcontractors, agents, or employees have knowledge and reporting is possible, of the discovery of any of the following conditions:
i. The presence of any material that Contractor believes is hazardous waste, as defined in Section 25117 of the Health and Safety Code:
ii. Subsurface or latent physical conditions at the site differing from those indicated in the specifications: or
iii. Unknown physical conditions at the site of any unusual nature, different materially for those ordinarily encountered and August 20, 2024, Item #2
generally recognized as inherent in work of the character provided for in this Contract.
b. Pending a determination by City of appropriate action to be take, Contractor shall provide security measures (e.g., fences) adequate to prevent the hazardous waste or physical conditions from causing bodily injury to any person. c. City shall promptly investigate the reported conditions. If City, through and in the exercise of its sole discretion, determines that the conditions do materially differ or do involve hazardous waste, and will cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, then City shall issue a change order.
d. In the event of a dispute between City and Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date, and shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights that pertain to the resolution of disputes and protests between the parties.

31. This Contract is to be governed by the laws of the State of California.

32. All work shall be guaranteed for a period of one (1) year from the date of acceptance by the City. Contractor shall promptly make all needed repairs arising out of defective materials, workmanship, and equipment.

City is hereby authorized to make such repairs if within ten (10) days after giving written notice to Contractor, or its agent, Contractor should fail to make or undertake with due diligence the aforesaid repairs; provided, however, that in case of an emergency, where, in the opinion of City, delay would cause serious loss or damage, repairs may be made without notice being sent to Contractor, and Contractor shall pay the costs thereof.
(Remainder of page intentionally left blank)
10 of 11
August 20, 2024, Item #2
IN WITNESS WHEREOF, the said Contractor and the City Manager, City Clerk and City Attorney have caused the names of said parties to be affixed hereto, the day and year first above written.

Contractor's Name:

Yunex Traffic
By: ------------
Signature
Print Name
Contractor information:

Address for Notices and Payments
Telephone Number: ______ _
Email: ------------
ATTEST:

Carrie Gallagher, CMC, City Clerk
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
Alan Fenstermacher, City Attorney
11 of 11

CITY OF POWAY
a Municipal Corporation
Chris Hazeltine, City Manager
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AG EN DA REPORT City of Poway
August 20, 2024
Honorable Mayor and Members of the City Council
Julie Procopio, Director of Development Services�
Miguel Solano, Assistant Engineer
(858) 668-4653 or [email protected]�

CITY COUNCIL
Award of Contract to M-Rae Engineering, Inc. for the FY 2023-24 Water Valve Replacement Project, Bid No. 25-001, and Determination the Project is Categorically Exempt from the California Environmental Quality Act
This action will award a construction contract to M-Rae Engineering, Inc. for the FY 2023-24 Water Valve Replacement project. This project involves the replacement of ten existing water valves in various locations throughout the potable water distribution system in the City. The current valves identified for replacement are beyond their useful life.

Recommended Action:

It is recommended the City Council:
1) Award the construction contract for the FY 2023-24 Water Valve Replacement project to M-Rae Engineering, Inc., in the amount of $288,000.00 for the base bid and $73,000.00 for the two additive alternates for a total contract amount of $361,000.00 and authorize the City Manager to execute the contract (Attachment A); and
2) Determine the Project is Categorically Exempt from the California Environmental Quality Act (CEQA).

Discussion:

This project was created in coordination with the Public Works Utilities Division to supplement in house maintenance
of water valves. A total of ten water valves, located in various parts of the distribution
system, have been identified by the Public Works Utilities Division to have aged beyond the end of their reliable service life.

A project bid was first received on May 16, 2024. The single bid received for $544,774.00 from Kay Construction Company, Inc. was 200 percent over the engineer's estimate. On June 18, 2024, the City Council approved staffs recommendation to reject the bid and re-bid the project. 1 of 11
August 20, 2024, Item #3
The project was re-advertised in late June with a base bid scope of eight valves. Bids were opened on July 18, 2024. A total of four bids were received for the construction contract, ranging as follows:

Company Total Base Bid
M-Rae Engineering, Inc. $288,000.00
Palm Engineering Construction Company, Inc. $289,000.00* Kirtley Construction, Inc. dba TK Construction $294,000.00 Piperin Corporation $459,000.00
*Corrected bid total
The low bid of $288,000.00, submitted by M-Rae Engineering, Inc., is an acceptable bid that is responsive to and meets the requirements of the bid specifications. The contract time for this project is 60 working days with an engineer's estimate of $242,000.00. Two additive alternates were included in the bid and are to be added to the contract as sufficient funds are available. The additive alternates will replace two additional valves within the water distribution system resulting in ten valves to be replaced as a part of the project.

Environmental Review:

The proposed project is Categorically Exempt from the California Environmental Quality Act (CEQA) as a Class 1 Categorical Exemption, pursuant to Section 15301 (C) of the CEQA Guidelines, in that the project involves minor alterations consisting of replacement of existing equipment.

Fiscal Impact:

There is sufficient funding available in the FY 2023-24 Water Valve Replacement project account (WT002) to award the base bid contract, including the two additive alternates.

Public Notification:

None.

Attachments:

A. Construction Contract
Reviewed/Approved By:

Assistant City Manager
Reviewed By:

Alan Fenstermacher
City Attorney City Manager
2 of 11
August 20, 2024, Item #3
SECTION 8

CONSTRUCTION CONTRACT

CITY OF POWAY
FY 2023-24 WATER VALVE REPLACEMENT
This Contract made and entered into this 21st day of August 2024, by and between City of Poway, a municipal corporation of the State of California, hereinafter referred to as "City" and M-Rae Engineering, Inc. hereinafter referred to as "Contractor." The City and the Contractor, for the consideration hereinafter named, mutually agree as follows:

2. The Contract Documents are complementary, and that which is required by one shall be as binding as if required by all.

3. Contractor shall provide and furnish all labor, materials, necessary tools, expendable equipment, and all utility and transportation services required for the following work of improvement: The FY 2023-24 Water Valve Replacement project will replace water valves, water valve clusters, and associated appurtenances throughout the City ranging from 6 inches to 10 inches in diameter.

4. Contractor agrees to perform all the said work and furnish all the said materials at their own cost and expense that are necessary to construct and complete in strict conformance with Contract Documents and to the satisfaction of the City Engineer, the work hereinafter set forth in accordance with the Contract adopted by the City Council.

ATTACHMENT A
3 of 11
August 20, 2024, Item #3
1 5. City agrees to pay and Contractor agrees to accept in full payment for performance of this work of improvement as described, the stipulated sum of $361,000.00 the "Contract Price."

6. 7.

8. 9.

10. 11.

City agrees to make progress payments and final payment in accordance with the method set forth in the Special Provisions.

Contractor agrees to commence construction of the work provided for herein within Fifteen (15) Calendar Days after the date specified in the Notice to Proceed, and to continue diligently in strict conformance with Contract Documents and without interruption, and to complete the construction thereof within 60 Working Days after the date specified in the Notice to Proceed.

Time is of the essence of this Contract, and it is agreed that it would be impracticable or extremely difficult to ascertain the extent of actual loss or damage which the City will sustain by reason of any delay in the performance of this Contract. It is, therefore, agreed that Contractor will pay as liquidated damages to the City the following sum of $500.00 per Calendar Day, for each and every Calendar Days delay in finishing the Work in excess of the number of Working Days prescribed above. If liquidated damages are not paid, as assessed by the City, the City may deduct the amount thereof from any money due or that may become due the Contractor under this Contract in addition to any other remedy available to City.

By executing this Contract, Contractor agrees that the amount of liquidated damages is reasonable and shall not constitute a penalty.

In accordance with State of California Senate Bill No. 854, Contractor will maintain and will require all subcontractors to maintain valid and current Department of Industrial Relations (DIR) Public Works Contractor registration during the term of this project. Contractor shall notify the City in writing immediately, and in no case more than twenty-four (24) hours, after receiving any information that Contractor's or any of its Subcontractor's DIR registration status has been suspended, revoked, expired, or otherwise changed.

Contractor will pay, and will require all subcontractors to pay, all employees on said Contract a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations and wage standards applicable to this work, a copy of which is on file in the office of the City Clerk of the City of Poway. Federal prevailing wage rates apply for federally funded projects.

Travel and subsistence pay shall be paid in accordance with Labor Code§ 1773.1.

Contractor shall be subject to the penalties in accordance with Labor Code of § 1775 for each worker paid (either by Contractor or by any subcontractors under Contractor) less than the prevailing rate described above on the work provided for in this Contract.

Contractor and subcontractors shall comply with Labor Code § 1810 and § 1811 which stipulates that eight hours labor constitutes a legal day's work, and § 1812 which stipulates that the Contractor and subcontractors shall keep an accurate record showing the name of and actual hours worked each calendar day and each 2 4 of 11
August 20, 2024, Item #3
calendar week by each worker employed by them in connection with the work performed under the terms of the Contract. Failure to comply with these sections of the Labor Code will subject the Contractor to penalty and forfeiture provisions of the Labor Code§ 1813.

12. Contractor will comply with the provisions of Labor Code§ 1777 .5 pertaining to the employment of apprentices to the extent applicable to this Contract.

15. a. Contractor shall procure and maintain at its own expense, until completion of performance, commercial general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss or damage resulting from the wrongful or negligent acts by the Contractor or its officers, employees, servants, volunteers and agents and independent contractors.

Contractor shall provide insurance on an occurrence, not claims-made basis.

Contractor acknowledges and agrees that, for purposes of clarification with the intention of avoiding gaps in coverage with any umbrella or excess insurance, personal and advertising injury coverage shall be triggered by an "offense" while bodily injury and property damage coverage shall be triggered by an "occurrence" during the policy period.
b. Contractor shall further procure and maintain at its own expense, until completion of performance, commercial vehicle liability insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, covering any vehicle utilized by Contractor or its officers, employees, 3 5 of 11
August 20, 2024, Item #3
}
servants, volunteers and agents and independent contractors in performing the services required by this Agreement.
c. Contractor shall further procure and maintain at its expense, until completion of performance, workers' compensation insurance providing coverage as required by the California State Workers' Compensation Law. If any class of employees employed by the Contractor pursuant to this Agreement is not protected by the California State Workers' Compensation Law, Contractor shall provide adequate insurance for the protection of such employees to the satisfaction of the City. This provision shall not apply if Contractor has no employees performing work under this Agreement. Contractor agrees to waive its statutory immunity under any worker's compensation or similar statute, as respecting the City, and to require any and all subcontractors and any other person or entity involved with the Project to do the same.

Worker's Compensation Insurance:
o Contractor has no employees and is exempt from workers' compensation requirements.
o Contractor carries workers' compensation insurance for all employees. d. All policies required by this section shall be secured from insurers authorized to do business in the State of California with an "A" policyholder's rating or better and a financial rating of at least Class VII, in accordance with the current Best's Ratings.
e. Contractor agrees to require that all parties, including but not limited to subcontractors, architects, engineers or others with whom Contractor enters into contracts or whom Contractor hires or retains pursuant to or in any way related to the performance of this Agreement, provide the insurance coverage required herein, at minimum, and, except for worker's compensation coverage, name as additional insureds the parties to this Agreement. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section. f. In the event this Agreement is terminated for any reason prior to the completion of all obligations and requirements of this Agreement, Contractor agrees to maintain all coverages required herein until the City provides written authorization to terminate the coverages following the City's review and determination that all liability posed under this Agreement as to the party providing insurance has been eliminated.
g. Contractor agrees and acknowledges that if it fails to obtain all of the insurance required in this Agreement in accordance with the requirements herein, or to obtain and ensure that the coverage required herein is maintained by any subcontractors or others involved in any way with the Project, Contractor shall be responsible for any losses, claims, suits, damages, defense obligations, or liability of any kind or nature attributable to the City, and/or its officers, employees, servants, 4 6 of 11
August 20, 2024, Item #3
volunteers, agents and independent contractors, that result from such failure by Contractor.

16. a. Contractor shall provide certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times until completion of performance and acceptance by the City.
b. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the commercial general liability and commercial vehicle liability policies shall bear endorsements whereby it is provided that the City, and its officers, employees, servants, volunteers, agents and independent contractors are named as additional insureds. Additional insureds shall be entitled to the full benefit of all insurance policies in the same manner and to the same extent as any other insureds and there shall be no limitation to the benefits conferred upon them other than policy limits to coverages. c. Contractor shall require the carriers of all required insurance policies to waive all rights of subrogation against the City, and its officers, employees, servants, volunteers, agents and independent contractors.
d. Each policy required herein must be endorsed to provide that the policy shall not be cancelled in coverage or limits (except by paid claims) unless the insurer has provided the City with 30 days prior written notice of cancellation. Contractor agrees to provide the City with 30 days written notice prior to any non-renewal or reduction in coverage or limits.
e. All insurance policies required to be provided by Contractor or any other party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self-insurance, primary or excess, maintained or available to the City, and its officers, employees, servants, volunteers, agents and independent contractors.

17. a. Contractor shall defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damage, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith) to the extent actually caused by the negligence of Contractor, Contractor's employees, subcontractors or independent contractors except for any such claim arising out of the negligence or willful misconduct of the City, or its officers, agents, employees or volunteers. b. The City does not, and shall not, waive any rights that it may have against Contractor under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are 5 7 of 11
August 20, 2024, Item #3

18. 19.

20. 21.

22. 23.

24. 25.

26. determined to be applicable to the claim, demand, action, damage, liability, loss, cost or expense described herein.

Any amendments to any of the Contract Documents, including but not limited to Contract Change Orders, must be in writing executed by the Contractor and the City. Any time an approval, time extension, or consent of the City is required under the Contract Documents, such approval, extension, or consent must be in writing in order to be effective.

The Contract Documents contain all of the agreements and understandings of the parties and all previous understandings, negotiations, and contracts are integrated into and superseded by this Contract.

In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Contract shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Contract which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder.

The persons executing this Contract on behalf of the parties hereto warrant that they are duly authorized to execute this Contract on behalf of said parties and that, by so executing this Contract, the parties hereto are formally bound to the provisions of this Contract.

This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and assigns.

In performing its obligations and duties under this Contract, each party shall comply with all applicable local, state, and federal laws, regulations, rules, standards and ordinances.

This Contract may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

After completion of the work contemplated by this Contract, Contractor shall file with the City Manager an affidavit stating that all workers and persons employed, all firms supplying materials, and all subcontractors upon the project have been paid in full, and that there are no claims outstanding against the project for either labor or materials, except certain items, if any, to be set forth in an affidavit covering disputed claims or items in connection with a Stop Notice that has been filed under the provision of the laws of the State of California.

All work shall be subject to inspection and testing by City and its authorized representatives during manufacture and construction and all other times and places, including, without limitation, the plans of Contractor and any of its suppliers.

Contractor shall provide all reasonable facilities and assistance for the safety and convenience of inspectors. All inspections and tests shall be performed in such 6 8 of 11
August 20, 2024, Item #3
manner as to not unduly delay the work. The Work shall be subject to final inspection and acceptance notwithstanding any payments or other prior inspections.

Such final inspection shall be made within a reasonable time after completion of the work.

28. Contractor agrees to contact the appropriate regional notification center in accordance with Government Code Section 4216.2.

29. Contractor shall submit its detailed plan for worker protection during the excavation of trenches required by the scope of the work in accordance with Labor Code Section 6705.

30. a. Contractor shall, without disturbing the condition, notify City, in writing, as soon as Contractor, or any of Contractor's subcontractors, agents, or employees have knowledge and reporting is possible, of the discovery of any of the following conditions:
i. The presence of any material that Contractor believes is hazardous waste, as defined in Section 25117 of the Health and Safety Code;
ii. Subsurface or latent physical conditions at the site differing from those indicated in the specifications; or
iii. Unknown physical conditions at the site of any unusual nature, different materially for those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.
b. Pending a determination by City of appropriate action to be taken, Contractor shall provide security measures (e.g., fences) adequate to prevent the hazardous waste or physical conditions from causing bodily injury to any person. c. City shall promptly investigate the reported conditions. If City, through and in the exercise of its sole discretion, determines that the conditions do materially differ or do involve hazardous waste, and will cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, then City shall issue a change order.
d. In the event of a dispute between City and Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date, and shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights that pertain to the resolution of disputes and protests between the parties.
7 9 of 11
August 20, 2024, Item #3

31. This Contract is to be governed by the laws of the State of California.

City is hereby authorized to make such repairs if within ten (10) days after giving written notice to Contraqtor, or its agent, Contractor should fail to make or undertake with due diligence the aforesaid repairs; provided, however, that in case of an emergency, where, in the opinion of City, delay would cause serious loss or damage, repairs may be made without notice being sent to Contractor, and Contractor shall pay the costs thereof. (Remainder of page intentionally left blank)
8 10 of 11
August 20, 2024, Item #3
IN WITNESS WHEREOF, the said Contractor and the City Manager, City Clerk and City Attorney have caused the names of said parties to be affixed hereto, the day and year first above written.

Contractor's Name:

M-Rae Engineering, Inc.

Print Name of Construction Company
By: ------------
Signature
Joel Constance
Print Name
Contractor information:

Address for Notices and Payments
9865 Meadow Lane
Descanso, CA 91916
Telephone Number: 619-843-5493
Email: [email protected]
ATTEST:

Carrie Gallagher, CMC, City Clerk
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
Alan Fenstermacher, City Attorney

CITY OF POWAY
a Municipal Corporation
Chris Hazeltine, City Manager
9 11 of 11
August 20, 2024, Item #3
August 20, 2024, Item #4
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AGENDA RE PO RT City of Poway
August 20, 2024
Honorable Mayor and Members of the City Cwncil
Eric Heidemann, Director of Public Works 1
Michael Obermiller, Public Works Operations Manager
(858) 668-4722 or [email protected] ~

CITY COUNCIL
Authorization to Purchase Two (2) Light-Duty Ford Explorer Chief Officer Emergency Vehicles Utilizing California Department of General Services State Contract #1-22-23- 23F and Emergency Response Equipment Upfitting by Open Market Competitive Bid The City of Poway's approved Fiscal Year (FY) 2024-25 operating budget includes funding to purchase two (2) light-duty chief officer emergency vehicles and emergency response equipment upfitting. The City participates in and is a member of several cooperative purchasing organizations, including the State of California Department of General Services (DGS), which establish and provide nationwide competitively solicited purchasing contracts to be utilized by member agencies.

Through the DGS State Contract (Contract #1-22-23-23F), Downtown Ford Sacramento presented optimal pricing for two (2) light-duty Ford Explorer chief officer emergency vehicles in the amount of $124,242.62. The vehicles meet the City's service requirements and specifications.

The City used the three-quote process for emergency response equipment upfitting for two (2) chief officer emergency vehicles. Quotes were solicited from Emergency Vehicle Systems LLC, 911 Vehicle, and Johnson Equipment Company. The lowest competitive bid came from Emergency Vehicle Systems LLC in the amount of $35,816.85. The upfitting meets the City's service requirements and specifications.

The total purchase price for these vehicles with associated equipment upfitting is $160,059.47.

Recommended Action:

It is recommended the City Council adopt a resolution authorizing the purchase of the following equipment:
1) Two (2) light-duty Ford Explorer chief officer emergency vehicles at a total cost of $124,242.62 from Downtown Ford Sacramento utilizing Department of General Services State Contract #1-22- 23-23F;
1 of 5
August 20, 2024, Item #4
2) Emergency response equipment upfitting for two (2) chief officer emergency vehicles at a total cost of $35,816.85 from Emergency Vehicle Systems LLC; and 3) Authorize the City Manager to execute all necessary documents.

Discussion:

The City operates and maintains over 125 street-legal vehicles, fire apparatus, and other heavy equipment to provide public safety services. Annually, several of these vehicles and pieces of equipment must be replaced as they have exceeded their useful life or have excessive mileage. The FY 2024-25 budget contains funding to replace two (2) light-duty chief officer emergency vehicles.

The City has two (2) 10-year old Dodge Charger chief officer emergency vehicles that have exceeded the recommended useful life and are scheduled for replacement. Emergency vehicles are exempt from the Advanced Clean Fleets Regulation until the year 2045. It is recommended the two (2) chief officer emergency vehicles be replaced through the DGS State Contract (Contract #1-22-23-23F) utilizing Downtown Ford Sacramento. The quote for the two (2) new light-duty Ford Explorer chief officer emergency vehicles is within the budgeted amount.

Staff reached out to local Poway dealerships. Aaron Ford of Poway did submit a quote, however it was incomplete and didn't meet the City's specifications. All agreements offered through the DGS State Contract have been awarded via a thorough Request for Bid (RFB) competitive solicitation program by a public agency/government entity (e.g., state, city, county, public university or school district). The program provides a streamlined and effective procurement option by establishing agreements with manufacturers and suppliers currently on an existing multiple award schedule with a competitive procurement procedure. Section 3.28.110 of the Poway Municipal Code permits the use of cooperative purchasing programs for procurement of supplies, services, and equipment when the administering agency has made their purchase in a competitive manner.

The quote for the two (2) chief officer emergency vehicles are as follows:

Unit DGS State Quote Vendor Contract No.

Chief Officer 1-22-23-23F $124,242.62 Downtown Ford
Emergency Vehicles Sacramento
The two (2) chief officer emergency vehicles are upfitted with code 3 emergency lighting and radio packages. This allows the Fire Chief and Deputy Fire Chief to provide an augmented command resource on significant emergency responses that occur in the City of Poway. City staff collected quotes for the emergency response equipment upfitting for the two (2) chief officer emergency vehicles from Emergency Vehicle Systems LLC, 911 Vehicle, and Johnson Equipment Company. It is recommended the emergency response equipment upfitting be replaced by the lowest competitive bid which came from Emergency Vehicle Systems LLC. The quote is within the budgeted amount.

The quotes for the emergency response equipment upfitting for the two (2) chief officer emergency vehicles are as follows:
2 ofS
August 20, 2024, Item #4
Unit Emergency Vehicle 911 Johnson Equipment
Systems LLC Vehicle Company
Emergency Response $35,816.85 $38,509.86 $36,401.72 Equipment Upfitting Copies of all quotes are on file with the Public Works Department.

Environmental Review:

This action is not subject to review under the California Environmental Act (CEQA).

Fiscal Impact:

The City proactively plans for the replacement of its vehicles and equipment by annually setting aside a portion ofthe anticipated replacement costs along with inflationary cost adjustments to account for increases in equipment costs. The purchases will be made with funds from the Capital Replacement Fund (115010-61040) along with the division's operating budget (split-funded), for the purchase of two (2) chief officer emergency vehicles and associated equipment upfitting.

The total cost of vehicles and equipment upfitting to be purchased as a result of this action is $160,059.47. A total of $79,014 from FY 2024-25 Capital Replacement Fund (115010-61040) and $81,045.47 of division split-funding accounts (500050-61040, 502050-61040) are budgeted and available for the purchase of these items.

Public Notification:

None.

Attachments:

A. Resolution
Reviewed/Approved By:

Assistant City Manager
3 of 5
Reviewed By:

Alan Fenstermacher
City Attorney
Approved By:
c~
City Manager
August 20, 2024, Item #4
RESOLUTION NO. 24-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

POWAY, CALIFORNIA, AUTHORIZING THE PURCHASE OF
TWO (2) CHIEF OFFICER EMERGENCY VEHICLES UTILIZING

CALIFORNIA DEPARTMENT OF GENERAL SERVICES STATE
CONTRACT #1-22-23-23F AND TWO (2) EQUIPMENT

UPLIFTING BY OPEN MARKET COMPETITIVE BID
WHEREAS, the City of Poway (City) operates and maintains over 125 street-legal vehicles and other heavy equipment for the purposes of inspecting, maintaining and operating City facilities and infrastructure and to provide public safety services; WHEREAS, each year several of these vehicles and pieces of equipment must be replaced as they exceed their useful life or have excessive mileage; WHEREAS, the City proactively plans for the replacement of these vehicles and pieces of equipment by accumulating resources in the Capital Replacement Equipment Fund through annual rent charges to the various departmental operating budgets associated with the use of such vehicles and equipment;
WHEREAS, the Fiscal Year 2024-25 adopted operating budget includes amounts budgeted in both the Capital Replacement Equipment Fund and in departmental operating budgets for the purchase or replacement of various vehicles and equipment; WHEREAS, Poway Municipal Code Section 3.28.110 provides for the use of cooperative purchasing programs for the purchase of supplies, services, and equipment when the administering agency has made their purchase in a competitive manner; and WHEREAS, the City's Procurement Policy allows the three-quote open market competitive bid process for the purchase of supplies, services, and equipment from $10,000 to $60,000.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows:

SECTION 1: Authorizes the purchase of two (2) chief officer emergency vehicles from Downtown Ford Sacramento utilizing California Department of General Services State Contract #1-22-23-23F, at total cost of $124,242.62.

SECTION 2: Authorizes the purchase of upfitting for two (2) chief officer emergency vehicles from Emergency Vehicle Systems LLC, by open market competitive bid, at total cost of $35,816.85.

SECTION 3: The City Manager is hereby authorized to execute any documents necessary for these purchases.
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II
II
II

ATTACHMENT A
August 20, 2024, Item #4
Resolution No. 24-

Page 2 ends

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Poway, California on the 20th day of August, 2024 by the following vote, to wit:

AYES:

NOES:

ABSTAINED:

ABSENT:

DISQUALIFIED:

Steve Vaus, Mayor
ATTEST:

Carrie Gallagher, CMC, City Clerk
5 of 5
August 20, 2024, Item #5
,,_-~-l Wl1(\l't',
• I I·
I~. I II\_ '
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AGENDA REPORT CityofPoway
August 20, 2024
Honorable Mayor and Members of the City Council
Julie Procopio, Director of Development Serviceq
Mary Piscitelli, Associate Planner
858·668-4657 or [email protected]

CITY COUNCIL
Consideration of Specific Plan Amendment (SPA) 22·0002 and Development Review (DR) 22-0001 to Allow the Construction of a Battery Energy Storage System (BESS) Facility located at 13501 Kirkham Way; Addendum to South Poway Specific Plan Environmental Impact Report (EIR) and Subsequent Environmental Impact Reports (SEIRs); and a Community Benefit Agreement
Nighthawk Energy Storage, LLC, is proposing to construct and operate a 300-Megawatt (MW) Battery Energy Storage System (BESS) facility on approximately 1 O acres within the South Poway Specific Plan (SPSP) (the Project). The Project requires approval of a Specific Plan Amendment (SPA) (Attachment B). a Development Review (DR) (Attachment C) and an Addendum to the SPSP Environmental Impact Report (EIR) and Subsequent Environmental Impact Reports (SEIRs) pursuant to the California Environmental Quality Act (CEQA). In connection with the Project, the applicant and City staff negotiated a Community Benefit Agreement (Attachment D), subject to the City Council's approval, whereby the Applicant has voluntarily offered to provide the City with a number of significant community benefits If the Project is approved.

Recommended Action:

It is recommended the City Council take public input, close the public hearing, and adopt the Resolution to approve the Addendum to the certified SPSP EIR and SEIRs (Attachment A); Introduce the Ordinance approving SPA 22-0002 (Attachment 8) for first reading by title only, waive further reading, and schedule the adoption for the next regularly scheduled meeting; adopt the Resolution approving DR 22-0001 (Attachment C); and adopt the Resolution approving the Community Benefit Agreement (Attachment D).

Discussion:

Background
The Applicant is Nighthawk Energy Storage, LLC, on behalf of Arevon Energy, and the Property Owner 1 of 71
August 20, 2024, Item #5
Is Clerco LLC. The approximately 83-acre parcel (Assessor's Parcel Number 320-031-03-00) is within the southerly portion of the SPSP and thus subject to the provisions of the SPSP. The Project is located at the northerly portion of the parcel. The southern portion of the parcel is an active mining site operated by Granite Construction. The southern property line lies along the jurisdictional boundary between the City of Poway (the City) and the City of San Diego.

The Project is bordered by industrial uses to the north and west; vacant open space and industrial uses to the immediate east; and open space and single-family homes to the south within the City of San Diego. The site is accessed by Paine Street, a private drive, connecting to Kirkham Way directly to the north and fronting the site. A vicinity map, location map, and zoning map are attached to this report (Attachment E).

The 83-acre parcel was originally designated as Light Industrial (LI) in the 1985 SPSP, It was later rezoned to Mlneral Resource Extraction (MRE) along with two adjacent parcels, a 16-acre parcel to the west and approximately 65-acres to the east.

In 2023, the City Council approved Conditional Use Permit (CUP) 22-0005, a modification of CUP 89- 05, establish Ing and conditioning the use of two pads totaling 15 acres on the north side of the 83- acre parcel. The applicant is requesting to rezone the same 15 acres (both pads) from LI to MRE. In addition, a DR is requested for the 10-acre site to the west side of the access drive for the Nighthawk BESS facility. The adjacent 5-acre pad would require future approvals for any development to occur on the site.

In February 2024, the City Council approved an amendment to the SPSP to require a CUP for future BESS facilities. The Nighthawk SPA application was filed on September 7, 2022. The CUP requirement does not apply to the Project because an exception was approved for projects that submitted a complete application as of the date of the adoption of the amendment. Nonetheless, the requested SPA is an entirely discretionary, legislative decision, which gives the City Council significant discretion to approve, condition or deny.

Project summary
The Applicant is proposing to construct and operate a 300-Megawatt (MW) BESS facility on approximately 1 O acres within the SPSP. The existing zone Is a Planned Community (PC) with a land use designation of MRE. The Project requires the approval of the SPA and DR, as well as the Addendum to ensure compliance with CEQA. The City Council will also consider approval of the Project's Community Benefit Agreement, proposed by the Applicant and negotiated between the Applicant and City staff.

The Project Involves construction of the BESS facility in Poway, a substation on the BESS site, and an underground transmission line (Gen-Tie) line that would cross under Beeler Creek and connect to SDG&E's Sycamore Canyon Substation on the Miramar Air Base.

The City is the CEQA lead agency, and the City of San Diego Is a responsible agency because the Gen Tie line travels through the City of San Diego's jurisdictional boundaries. The Project also requires coordination with the California Department of Fish and Wildlife (CDFW) for the Beeler Creek crossing.

CDFW and the City of San Diego coordinated with the Applicant in the review of the Beeler Creek crossing and other project impacts In the City of San Diego, which has been analyzed in the 2 of71
August 20, 2024, Item #5
Addendum.
specific Plan Amendment tSPA1
The Applicant submitted an application for a SPA to change the land use designation on 1 S acres of the 83-acre parcel from MRE to LI In order to accommodate the BESS facility. The proposed SPA would revert the site back to its original 1985 land use designation, LI, When the SPSP was first approved.

The SPA Is limited to the land use change and no other amendments are required or proposed to the SPSP. The Ordinance approving the SPA is Included as Attachment B.

Development Review <DRl
The proposed Project also requires DR approval. The DR considers the site development, including the site plan, slopes and contours, maximum bulldable area in the LI land use designation, building and associated structures and their location within the pad area. parking. walls, fencing, lighting, signage, and landscaping. The proposed site plan, elevations, and conceptual landscape plan(s} are included as Attachment F.

Battery Electric storage system Site
The Project proposes 329 battery enclosures and a subsration on an 8.9-acre development footprint at the northeast side of 13501 Kirkham Way. The remaining 1.1 acres of the 10-acre site are sloped areas to be vegetated by hydroseeding and irrigation.

The battery enclosures are generally arranged in rows and are configured in blocks running north to south on the site with drive aisles in between the four blocks. included in each block are the Mega Pack BESS enclosures which are roughly 28 feet long by 9.5 feet high, typically grouped in an arrangement of four; 83 Medium Voltage Transformers (one for each arrangement of four BESS enclosures); space for up to 987 future Capacity Maintenance Augmentation (CMA) units; bollards along the drive aisles to protect the equipment; and associated underground cabling connecting the electrical equipment together. The BESS systems will store the energy from the grid until it is needed to go back Into the grid, while the transformers change the voltage of the electricity. The CMAs are designed to maintain the capacity of the overall system over the lifetime of the facility as battery efficiency decreases over time.

In the southwest corner of the site will be the Project substation which will connect the facility to the grid at the SDG&E-owned Sycamore Canyon Substation via an underground transmission line.

Included in the Project substation is a High Voltage Transformer, a circuit breaker designed to "trip" In the case of any problem on either side, a terminator which connects the underground transmission line to the substation facilities, and a control enclosure which houses the systems monitoring the facility.

Landscaping will be provided around the facility's front and sides. There will be a combination of trees and landscape complying with both the City's landscape guidelines and the Fire Department's Fuel Management Zones. The surrounding slopes will be graded and contoured to blend into the natural topography. The slopes will be hydroseeded, planted and irrigated consistent with the City's requirements.
3 of 71
August 20, 2024, Item #5
Two parking spaces will be provided on site for maintenance staff. The applicant is requesting the City Council not require any further parking, as the facility will be unmanned on a permanent basis.

No signage is proposed at this time. If signage is desired in the future, the applicant will submit a sign permit applicatlon to the City for review and approval.

Fire Protection ang Safety
As part of the DR application process, the City's Fire Department reviewed and provided conditions for the Project. The site is located within the Very High Fire Hazard Safety Zone and the following requirements are included to ensure fire safety:
• Fuel Management Zones (Zone 1 -200 feet and Zone 2 -60 feet), totaling up to 260 feet outward from the edge of the Project site
• A 12-foot masonry wall will be constructed completely around the site. • A public water main loop with fire hydrants will traverse the perimeter of the facility • The Project will employ Lithium Iron Phosphate (LFP) batteries, which are more stable than other types of Lithium-Ion batteries previously employed, including those where the recent battery storage fire in Otay Mesa ocwrred
• A fire protection system will be Installed to automatically shut down affected battery storage components and prevent the spread of fire to other battery storage modules • A remote monitoring system, including temperature sensors and infrared cameras, will be installed, which are to be monitored 24 hours a day, 7 days a week • Fire Department training for operations staff will be conducted prior to facility operations • A separate California Fire Code construction permit will be required from the Fire Department Decommjssiooiog
At the end of the Project's 30-year operational term, the Project will be decommissioned and deconstructed. Site equipment will be removed, and the site will be taken down to flat grade, except for existing landscaping and stormwater management improvements. Most of the equipment will be recycled. The underground electric transmission line will be left in place and disconnected at both ends. The Project's Addendum contains multiple references as to how decommissioning will be regulated and managed, including environmental analysis of future support activities.

Commuoit,v Benefit Agreement
As noted earlier, the Applicant has offered to provide a number of community benefits and additional mitigation for potential Project Impacts, as set forth In the proposed Cornmunity Benefit Agreement attached as Exhibit 1 to Attachment D. In summary, if approved, the Applicant will provide the following:
• $2 million lump sum payment into a City Community Benefit Fund, to be used by the City at its direction for public or community project(s)
• A minimum of $10,000 per year for the life of the project to civic organizations operating within the City
• Agreement to fully reimburse the City for all costs it incurs responding to any fire at the Project 4 of71
August 20, 2024, Item #5
site, during the life of the Project
• Guarantee of a minimum of $3.5 million in sales and use tax revenue to the City from the construction of.the Project, regardless of the Project's actual sales and use tax liability • Guarantee of a minimum of $6.5 million In property tax revenue to the City over the course of the first twenty years of the Project's operation, regardless of the Project's actual property tax liability
community Input
A Neighborhood meeting was held on February 28, 2023, at City Hall. The meeting was an open house forum with stations manned by various Project team members. Meeting notices were sent to nearby residents and to Stonebrldge (residential neighborhood In the City of San Diego to the south of the Project boundary) residents through their Homeowners Association. Attendees from the community had the opportunlty to ask questions and express concerns. Stonebridge residents expressed concerns about noise and safety. These areas have been evaluated in the Addendum to the SPSP EIR/SEIRs, and no new or lncreased significant impacts were found.

Pre-Development Conference
A Pre-Development conference (PDC) was held at the February 15, 2022 City Council meeting (PDC21- 004). City Staff and the applicant team made oral and visual presentations to the Council and members of the public had an opportunity to speak. Concerns were raised about overhead lines and poles through environmentally sensitive areas, fire safety, Impacts to property values and lack of community benefits.

Many revfsions to the Project have resulted from the comments received at the neighborhood meeting and the PDC, including:
• Underground transmission line (instead of overhead)
• 12' masonry fire wall
• Newer, safer battery technology (Lithium Iron Phosphate instead of Lithium Ion) • New Fire safety protocols (better sensor technology, cameras, 24n monitoring, automatic shutoffs, temperature controls, etc.)
• Community Benefit Agreement
Environmental Review:

Pursuant to the California Environmental Quality Act (CEQA) Guidelines Section 15164, an Addendum has been prepared to the (1) Environmental Impact Report (EIR) (SCH No. 84053008) for the SPSP, certified by the City Council on July 30, 1985; (2) the Subsequent Environmental Impact Report (SEI R) (SCH No. 880427161) certified by the City Council on July 28, 1988, for an amendment to the SPSP, and (3) a subsequent SEIR (Sch No. 89010025), certified by the City Council on July 23, 1991, for the Cal Mat CUP 89-05. The analysis from the EIR and SEIRs, together with the analysls in the Addendum, support the conclusion the proposed Project will not result in any new significant impacts or significant impacts would be more severe than those identified and analyzed in the previously certified EIR and SEIRs, nor are any other circumstances set forth in CEQA Guidelines section 15162(a) present that would allow or necessitate the preparation of a subsequent or supplemental SEIR. Pursuant to CEQA Guidelines Section 15164(a), the City may rely on the EIR and SEIRs, as updated with the Addendum, for 5 of71
August 20, 2024, Item #5
documentation of the effects of the Project on the environment, as all the proposed Project's significant impacts were fully disclosed, analyzed and mitigated in the EIR and SEIRs.

Additionally, the Project Gen-Tie crosses an existing Biological Conservation Easement (BCE) previously dedicated to the City and CDFW. The purpose of the BCE is to protect wildlife and wildlife habitat. The Project will cross the BCE by tunnelling. CDFW, who is a co-administrator of the BCE with the City of Poway, provided a letter concurring with the Addendum, stating the proposed crossing and construction methodology would not disturb the BCE's purpose. Therefore, the Project is an allowable activity and is otherwise conslstent with the existing BCE. Significant biological review and agency discussion was conducted and is described in more detail within the Addendum.

Eiscal Impact:

There are four main components to the fiscal impact of the proposed Community Benefit Agreement (Agreement) (Exhibit 1 of Attachment D). If approved, the Agreement provides a guarantee the City will receive a minimum of $3.S million in total sales and use tax revenue from the development and construction of the Project once it is operational and connected to the electrical grid. The Agreement also provides a guarantee the City will receive a minimum of $6,5 million in total property tax revenue over the 20-yec:ir term of project operation based on the annual amounts reflected in Exhibit ''A" to the Agreement. The Agreement also provides that within 90 days of receipt of all permits and approvals necessary for completion and construction of the Project, the Applicant will provide a one time $2 million "Community Benefit Fund" contribution to be utilized by the City for its choice of public or community project(s.). The Agreement also stipulates the Applicant will provide a contribution of a minimum of $10,000 per year in the aggregate for the life of the project to civic organizations operating within the Clty of Poway. In addition to these financial guarantees, the agreement also requires that in the event a fire occurs on the project property at any time during the construction, maintenance, operation or decommissioning of the project, the Applicant agrees to fully reimburse the City for all incident management costs incurred.

Public Notification:

A Notice of Public Hearing was published in the Poway News Chieftain on Thursday, August 8, 2024.

A public notice was mailed to property owners and occupants located within 500 feet of the Project site.

Attachments:

A. Resolution approving Addendum to the Soutl1 Poway Specific Plan EIR and SEIRs B. Ordinance approving Specific Plan Amendment (SPA) 22-0002 C. Resolution approving Development Review (DR) 22-0001 D. Resolution approving Community Benefit Agreement
E. Vicinity, Location and Zoning Maps
F. Site Development Plan, Elevations, and Conceptual Landscape Plan 6 of71
August 20, 2024, Item #5
Reviewed/Approved By:
w~~,.~
Assistant City Manager
7 of 71
Reviewed By:

Alan Fenstermacher
City Attorney
Approved By:

Ce~
City Manager
August 20, 2024, Item #5
RESOLUTION NO. 24-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

POWAY, CALIFORNIA, APPROVING AN ADDENDUM TO THE

SOUTH POWAY SPECIFIC PLAN ENVIRONMENTAL IMPACT

REPORT, SOUTH POWAY PLANNED COMMUNITY

AMENDMENTS SUBSEQUENT ENVIRONMENTAL IMPACT

REPORT AND CALMAT-POWAY SUBSEQUENT

ENVIRONMENTAL IMPACT REPORT ANALYZING THE

POTENTIAL IMPACTS OF SPECIFIC PLAN AMENDMENT (SPA)
22-0002 AND DEVELOPMENT REVIEW (DR) 22-0001, TO

ALLOW THE USE AND CONSTRUCTION OF NIGHTHAWK
BATTERY ENERGY STORAGE SYSTEM; ASSESSOR'S
PARCEL NUMBER 320-031-03-00
WHEREAS, on July 30, 1985, the City Council of the City of Poway approved the South Poway Specific Plan (SPSP) (PC 84-01) via Resolution P-85-45, which also contained a Poway General Plan Amendment (GPA) to set the policy framework guiding development in the SPSP area using definitions, a land use plan, development standards and design guidelines:

WHEREAS, on July 30, 1985, the SPSP Environmental Impact Report (EIR) (State Clearinghouse [SCH] No. 84053008) prepared by the City was certified pursuant to the California Environmental Quality Act (CEQA) (Publfc Resources Code §21000, et seq.), in conjunction with the adoption of SPSP and related entitlements adopted concurrently therewith, The SPSP EIR analyzed the potential impacts of the proposed build-out of the SPSP area in a manner permitted by the Specific Plan;
WHEREAS, on July 26, 1988, the City Council of the City of Poway certified a Subsequent Environmental Impact Report (SEIR) (SCH No. 880427161) via Resolution P-88-074, for amendments to the text of and acreage within the boundaries of the SPSP; WHEREAS, on July 23, 1991, the City Council certified a second SEIR (SCH No. 89010025) for the CalMat-Poway Conditional Use Permit (CUP) and Reclamation Plan (CUP 89- 05) via Resolution 91-078;
WHEREAS, the City Council approved modifications to CUP 89-05 by its approval of CUP 19-009 in February 2020 and CUP 22-0005 in April 2023, each time determining that the approved modifications to the CUP did not require further analyses and all impacts were analyzed by the previously certified 1990 SEIR;
WHEREAS, Nighthawk Energy Storage, LLC (Applicant) has applied for an amendment to the SPSP Specific Plan Amendment (SPA) 22-0002 and a Development Review (DR) 22-0001 to allow the development and operation of a 300-Megawatt (MW) battery energy storage system (BESS) facility on an approximately 10 acres of the northerly portion of Assessor Parcel Number (APN) 320-031-03, addressed as 13501 Kirkham Way, as well as associated infrastructure (Project);
WHEREAS, an Addendum to the previously certified SPSP EIR and SEIRs (Addendum) has been prepared in compliance with CEQA to address and analyze the potential environmental impacts of the Project, and is available on the City website at the following link:
l1ttps://poway.org/329/Recent-Projects-Environmental-Documents. The Addendum is also 8 of 71 ATTACHMENT A
August 20, 2024, Item #5
Resolution No. 24-

Page 2 ends

available for inspection and copying in the City Clerk's office, and hereby incorporated into this Resolution by reference;
WHEREAS, the Addendum, based on substantial evidence and for the reasons set forth therein, concludes that the Project will not result in any new significant impacts or significant impacts that would be more severe than those identified and analyzed in the EIR and SEIR(s), nor are any other circumstances set forth in CEQA Guidelines section 15162 (i.e., changed circumstances or new information of substantial importance) present that would allow or necessitate the preparation of a subsequent or supplemental EIR; WHEREAS, on August 20, 2024, the City Council held a duly advertised public hearing to solicit comments from the public, both in favor and against, regarding the Project and the Addendum; and
WHEREAS, the City Council has read and considered the Addendum for the proposed project and has considered other evidence presented at the public hearing and determined that the analysis and conclusions in the Addendum represent the City Council's independent judgment.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows:

SECTION 1: The above recitals are true and correct and are incorporated by this reference as if fully set forth herein.

SECTION 2: Based on the analysis and evidence presented in the Addendum, and all other evidence in the administrative record, the City Council finds in its independent judgement that the Project will not result in any new significant impacts or significant impacts that would be more severe than those identified and analyzed in the SPSP EIR and SEIRs, nor are any other circumstances set forth in CEQA Guidelines section 15162 present that would allow or necessitate the preparation of a subsequent or supplemental EIR. Pursuant to CEQA Guidelines Section 15164(a), the City may rely on the EIR and SEIRs, as updated with the Addendum, for documentation of the effects of the Project on the environment, as all of the proposed Project's significant impacts were fully disclosed, analyzed and mitigated in the SPSP EIR and SEIRs, to the extent feasible. All of the Project impacts will be less than significant after the imposition of application mitigation measures required by the previously certified SPSP EIR and SEIRs.

SECTION 3: The Addendum is available on the City website at the following link:
https://poway.org/329/Recent-Projects-Environmental-Documents, available for inspection and copying in the City Clerk's office, and hereby incorporated into this Resolution by reference, was prepared in compliance with CEQA, specifically CEQA Guidelines 15164, and is hereby approved.

SECTION 4: The Applicant shall defend, indemnify, and hold harmless the City, its agents, officers, and employees from any and all claims, actions, proceedings, damages, judgments, or costs, including reasonable attorney's fees, collectively the "Claims" against the City or its agents, officers, or employees, relating to the issuance of any aspect of the proposed Project, including, but not limited to, any action to attack, set aside, void, challenge, or annul the development approvals set forth in this resolution any aspect of SPA 22-0002, DR 22-0001, or the Addendum and/or any environmental document or decision made pursuant to CEQA. The City may elect to conduct its own defense, participate in its own defense, or obtain independent 9 of71
August 20, 2024, Item #5
Resolution No. 24-

Page 3 ends

legal counsel in defense of any claim related to this indemnification. In the event of such election, applicant shall pay all costs related thereto, including without limitation reasonable attorney's fees and costs. In the event of a disagreement between the City and applicant regarding litigation issues, the City shall have the authority to control the litigation and make litigation-related decisions, including, but not limited to, settlement or other disposition of the matter. However, the applicant shall not be required to pay or perform any settlement unless such settlement is approved by applicant. Notwithstanding the foregoing, no indemnity shall be required for claims resulting from the exclusive gross negligence or willful misconduct of the City.

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Poway, California on the 20th day of August, 2024 by the following vote, to wit:

AYES:

NOES:

ABSTAINED:

ABSENT:

DISQUALIFIED:

Steve Vaus, Mayor
ATTEST:

Carrie Gallagher, CMC, City Clerk
10 of 71
August 20, 2024, Item #5
ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

POWAY, CALIFORNIA, APPROVING A SPECIFIC PLAN
AMENDMENT (SPA) 22-0002 TO THE SOUTH POWAY

SPECIFIC PLAN ALLOWING A CHANGE OF THE LAND USE

DESIGNATION FROM MINERAL RESOURCE EXTRACTION TO

LIGHT INDUSTRIAL ON TWO PAD SITES LOCATED WITHIN AN
83-ACRE PARCEL, THEREBY ALLOWING DEVELOPMENT OF

THE NIGHTHAWK BATTERY ENERGY STORAGE SYSTEM ON
PAD 2; ASSESSOR'S PARCEL NUMBER 320-031-03-00
WHEREAS, on July 30, 1985, the City Council of the City of Poway approved the South Poway Specific Plan (SPSP) (PC 84-01) and certified the Environmental Impact Report (EIR) (State Clearinghouse (SCH) No. 84053008) via Resolution P-85-45; WHEREAS, on July 26, 1988, the City Council of the City of Poway certified a Subsequent Environmental Impact Report (SEIR) (SCH No. 880427161) via Resolution P-88-074, for amendments to the text of and acreage within the boundaries of the SPSP; WHEREAS, on August 7, 1990, the City Council adopted Resolution No. 90-164 approving Conditional Use Permit (CUP) 89-05 for continuation and expansion of the aggregate operation located at 10975 Beeler Canyon Road;
WHEREAS, on July 23, 1991, the City Council certified a second SEIR (SCH No. 89010025) for the Cal Mat-Poway CUP and Reclamation Plan (CUP 89-05) via Resolution 91- 078;
WHEREAS, the City Council approved further modifications to CUP 89-05 by its approval of CUP 19-009 in February 2020 and CUP 22-0005 in April 2023, each time determining that the changes in the CUP requests did not require further analysis and all impacts were analyzed by the previously certified 1990 SEIR;
WHEREAS, the previously approved CUP 22-0005, submitted by Granite Construction, modified Granite Construction's aggregate operation by allowing for the construction of industrial buildings on two future industrial pads, one of which is the Project site, prior to operations under the use being terminated, including mining and processing activities, and revised the industrial building pad locations (Pads) at the northerly portion of the site located at 10975 Beeler Canyon Road/13501 Kirkham Way, which includes the Project site; WHEREAS, on August 20, 2024, the City Council considered a request from Nighthawk Energy Storage, LLC (Applicant) for an amendment to the SPSP (SPA to change the Land Use Designation of both of the Pads, as that term is defined above (referred to as Pad 1 and Pad 2)) from Mineral Resource Extraction (MRE) to Light Industrial {Ll)1 along with Development Review (DR) 22-0001 for Pad 2 only (approximately 1 O acres of the northerly portion of Assessor Parcel Number [APN] 320-031-03-00, addressed as 13501 Kirkham Way), to allow the development and operation of a 300-Megawatt (MW) Battery Energy Storage System (BESS) facility on an as well as associated infrastructure thereon (the Project);
WHEREAS, on August 20, 2024, the City Council held a duly advertised public hearing to solicit comments from the public, both for and against, relative to the proposed Project; 11 of71 ATTACHMENT B
August 20, 2024, Item #5
Ordinance No.

Page 2 ends

WHEREAS, concurrent with the approval of this Ordinance approving SPA 22-0002, the City Council approved DR 22-0001 pursuant to Resolution No. 24-, which is also necessary to allow development and operation of the Project;
WHEREAS, concurrent with the approval of this Ordinance approving SPA 22-0002, the City Council also approve<;! an Addendum to the SPSP EIR and SEIRs (Addendum) pursuant to Resolution No. 24-, which concludes that the Project would be not result in any new or increased significant impacts on the environment not already analyzed in, and fully covered by, the SPSP EIR and SEIRs, and otherwise determined that the Project would not result in any other circumstances set forth in California Environmental Quality Act (CEQA) Guidelines section 15162(a) that would allow or necessitate the preparation of a subsequent or supplemental EIR; WHEREAS, concurrent with the approval of this Ordinance approving SPA 22-0002, the City Council also approved a Community Benefit Agreement pursuant to Resolution No. 24-; Which was a material inducement and material factor in its decision to approve the Project; WHEREAS, Chapter 17.47.090 of Title 17 (Zoning Development Code) of the Poway Municipal Code (PMC) and the SPSP itself provides the requirements for the amendment of Specific Plans, and the SPSP in particular;
WHEREAS, the proposed SPA 22-0002 would amend the land use map of the SPSP from M RE to LI, for onty the 5-acre Pad 1 (retained by Granite) and 10-acre Pad 2 (the Nighthawk Project site) on the 85-acre parcel designated as APN 320-031-03-020, as shown on the revised Land Use Map attached hereto as Exhibit 1;
WHEREAS, all of the proposed amendments to the SPSP are shown in Exhibit 1 hereto, consisting solely of the revised land use map with no text changes to the SPSP; WHEREAS, the City Council has read and considered the agenda report for the proposed project and has considered other evidence presented at the public hearing.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:

SECTION 1: The above recitations are true and correct, and incorporated herein by referenced as If fully set forth herein.

SECTION 2: The Project would not result in any new or increased significant impacts on the environment not already analyzed in, and fully covered by, the SPSP EIR and SEIRs, nor would it result in any other circumstances set forth in CEQA Guidelines section 15162(a), for all the reasons set forth in the Addendum and the remainder of the administrative record.

SECTION 3: The City Council hereby approves this Ordinance, thereby approving and adopting the requested SPA 22-0002, resulting in the amendments to the SPSP as shown in Exhibit 1.

SECTION 4: The applicant shall defend, indemnify, and hold harmless the City, its agents, officers, and employees from any and all claims, actions, proceedings, damages, judgments, or costs, including reasonable attorney's fees, collectively the "Claims" against the City or its agents, officers, or employees, relating to the approval of any aspect of the Project 12 of 71
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approval set forth in this Ordinance, including, but not limited to, any action to attack, set aside, void, challenge, or annul this Ordinance or .any other associated development approval (including but not limited to SPA 22-0002 and DR 22-0001), or any environmental document or decision made pursuant to CEQA, specifically including the City Council's approval of the Addendum. The City may elect to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification. In the event of such election, applicant shall pay all of the costs related thereto, including without limitation reasonable attorney's fees and costs. In the event of a disagreement between the City and applicant regarding litigation issues, the City shall have the authority to control the litigation and make litigation-related decisions, including, but not limited to, settlement or other disposition of the matter. However, the applicant shall not be required to pay or perform any settlement unless such settlement is approved by applicant. Notwithstanding the foregoing, no indemnity shall be required for claims resulting from the exclusive gross negligence or willful misconduct of the City.

SECTION 5: Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or its application to any person or circumstance, is for any reason held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentehces, clauses or phrases of this ordinance, or its application to any other person or circumstance. The City Council declares that it would have adopted each section subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact of any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

SECTION 6: This Ordinance shall be codified.

EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after its adoption.

CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Council members voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the City of Poway within fifteen ( 15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933.

II
II
II
II
II
II
II
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INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City of Poway, Callfornia, held the 20th day of August, 2024, and thereafter.

PASSED AND ADOPTED at the next regular meeting of said City Council held the_ day of __ , __ , by the following vote, to wit:

AYES:

NOES:

ABSTAINED:

ABSENT:

DISQUALIFIED:

Steve Vaus, Mayor
ATTEST:

Carrie Gallagher, CMC, City Clerk
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EXHIBIT 1
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RESOLUTION NO. 24-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

POWAY, CALIFORNIA, APPROVING DEVELOPMENT REVIEW
(DR) 22-0001 ro ALLOW THE CONSTRUCTION OF THE

NIGHTHAWK BATTERY ENERGY STORAGE SYSTEM ON AN
APPROXIMATELY 10-ACRE PORTION OF AN 82-ACRE
PARCEL; ASSESSOR'S PARCEL NUMBER 320-031-03-00
WHEREAS, on July 30, 1985, the City Council of the City of Poway approved the South Poway Specific Plan (SPSP) (PC 84-01) and certified the Environmental Impact Report (EIR) (State Clearlnghouse [SCH] No. 84053008) via Resolution P-85-45; WHEREAS, on July 26, 1988, the City Council of the City of Poway certified a Subsequent Environmental Impact Report (SEIR) (SCH No. 880427161) via Resolution P-88-074, for amendments to the text of and acreage within the boundaries of the SPSP; WHEREAS, on August 7, 1990, the City Council adopted Resolution No. 90-164 approving Conditional Use Permit (CUP) 89-05 for continuation and expansion of the aggregate operation located at 10975 Beeler Canyon Road;
WHEREAS, on July 23, 1991, the City Council certified a second SEIR (SCH No. 89010025) for the CalMat-Poway CUP and Reclamation Plan (CUP 89-05) via Resolution 91- 078;
WHEREAS, the City Council approved further modifications to CUP 89-05 by its approval of CUP 19-009 in February 2020 and CUP 22-0005 in April 2023, each time determining that the changes in the CUP requests did not require further analysis and all impacts were analyzed by the 1990 SEIR;
WHEREAS, the previously approved CUP 22-0005, submitted by Granite Construction, modified Granite Construction's aggregate operation by allowing for the construction of industrial buildings on the future industrial pads. including the Project site, prior to operations under the being terminated, including mining and processing activities, and revised the industrial building pad locations (Pads) at the northerly portion of the site located at 10975 Beeler Canyon Road/13501 Kirkham Way, which includes the Project site; WHEREAS, on August 20, 2024, the City Council considered a request from Nighthawk Energy Storage, LLC (Applicant) for approval of Development Review (DR) 22-0001, to allow the development and operation of a 300-Megawatt (MW) Battery Energy Storage System (BESS) facility on an as well as associated infrastructure approximately 10 acres of the northerly portion of Assessor Parcel Number (APN) 320-031-03-00, addressed as 13501 Kirkham Way (referred to as Pad 2) (the Project);
WHEREAS, on August 20, 2024, the City Council held a duiy advertised pubric hearing to solicit comments from the public, both for and against, relative to the Project; WHEREAS, on August 20, 2024, concurrently with this action, the City Council considered additional approvals required to allow the development of the Project, including a Specific Plan Amendment (SPA) 22-0002 to the SPSP, and an Addendum to the previously certified SPSP EIR and the SEIRs;
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WHEREAS, concurrent with this action, the City Council also considered a proposed Community Benefit Agreement;
WHEREAS, Poway Municipal Code (PMC) Section 17.52.010 establishes findings for granting a DR;
WHEREAS, the City Council has reviewed and considered the agenda report for the proposed Project, including the attachments, and has considered all other evidence presented at the public hearing; and
WHEREAS, the plans and documents for the Project are available on file in hard copy in the Development Services Department, and the Addendum to the EIR and SEIRs is available in hard copy in the City Clerk's Office and available using this link: https://Poway.org/329/Recent Projects-Environmental-Documents.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows:

SECTION 1: The above recitals are true and correct.

SECTION 2: Pursuant to the California Environmental Quality Act (CEQA) Guidelines Section 15164, an Addendum has been prepared to the EIR (1985 EIR, Resolution 85-45) (State Clearinghouse [SCH] Number 84053008) for the SPSP, the SEIR (SCH No. 880427161) for amendments to SPSP, and the SEIR (SCH No. 89010025) for the CalMat-Poway CUP and Reclamation Plan (CUP 89-05). The analysis from the EIR and SEIRs, together wlth the analysis in the Addendum, support the conclusion that the use and development of the Project will not result in any new or increased significant impacts that would be more severe than those already analyzed in, and further covered by the previously certified EIR and SEIRs, nor are any other circumstances set forth in CEQA guidelines Section 15162(a) present that would allow or necessitate the preparation of a subsequent or supplemental EIR. Pursuant to CEQA Guidelines Section 15164(a), the City may rely on the EIR and the SEIRs, updated with the Addendum, for documentation of the effects of the Project on the environment, as all of the proposed project's significant impacts were fully disclosed, analyzed, and mitigated in the EIR and SEIRs, to the extent feasible, for all reasons set forth in the Addendum and the remainder of the administrative record.

SECTION 3: The findings made, and conditions of approval set forth in Resolution 85- 45 for the EIR, Resolution 88-074 for the 1988 SEIR, Resolution 01-048R for CUP 89-05, Resolution 91-078 for the Reclamation Plan 89-05, Resolution 91-048 for the 1990 SEIR, CUP 19-009 (minor modification), and Resolution 23-011 for CUP 22-0005, remain applicable and active, and run with the use of the land.

SECTION 4: The findings for DR 22-0001, in accordance with the PMC Section

17.52.010 and the implementation procedures for the SPSP for DR 22-0001 are made as follows:

A. The proposed location, size, design, and operating characteristics of the proposed Project as outlined in this resolution conform to the SPSP development standards and design guidelines. There are similar Light Industrial (LI) uses and structures in the surrounding area that unify elements with the Project location. The proposed development complies with grading limitations of the General Plan, and the proposed facilities are compatible and consistent with the topography, use, and design of existing similar uses and structures 17 of 71
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within the immediate vicinity. The development respects the interdependence of land values and aesthetics to the benefit of the City and surrounding area and provides buffering around the proposed project area.

B. The proposed uses for the site, including the Substation, the BESS, and the Gen-Tie, are compatible with the location, size, design and operating characteristics of similar projects.

The proposed uses will not adversely affect or be materially detrimental to adjacent uses, buildings, structures, or natural resources. The proposed Project has been designed to minimize impacts on surrounding development. Therefore, the proposed development respects the public concerns for the aesthetics of development and encourages the orderly and harmonious appearance of structures and property within the City.

C. The proposed development will maintain the public health, safety, and general welfare within the City and will meet City grading, building, and stormwater quality requirements to comply with City standards for development within the Very High Fire Hazard Areas.

D. The granting of the DR would be cognizant of the public concerns for aesthetic development in that the development will consist of structures that will not be visible and landscaping that will blend in with the natural setting in colors and design and will not distract from the existing natural landforms.

E. The proposed Project will not have an adverse aesthetic, health, safety, or related impact upon adjoining properties or the City in general, in that the proposed project will be similar to other developments in the area, will comply with the City design standards and meet City grading, structural, and stormwater requirements.

F. There will not be significant harmful effects upon environmental quality and natural resources.

G. The site is suitable for type and intensity for the proposed uses and development plan.

The proposed uses involve no significant harmful effects upon environmental quality and natural resources. There are no other relevant negative impacts associated with the proposed uses that are not mitigated.

H. The impacts, as described above, with the location, size, design and operating characteristics of the proposed uses and the conditions under which they operate or are maintained, will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity, nor be contrary to the SPSP or the General Plan.

I, This Project is aligned with other municipalities and governmental entities of the City of San Diego and Marine Corps Air Station (MCAS) Miramar. The City is considered the Lead Agency; however, the City of San Diego is considered the Responsible Agency. The City of San Diego and MCAS Miramar have provided concurrence for the entire project.

J. The proposed project generally complies with the vision and the provisions of the SPSP, Zoning Ordinance and the General Plan.

K. The proposed uses will comply with all applicable provisions of PMC Title 17, except as otherwise described in the SPSP.
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L. The project site grading has been designed In accordance with the provisions of PMC

16.50.110.

M. Since the project site (Pad 2) was previously disturbed as part of the CalMat-Poway and Vulcan Minerals mine and borrow pit, in addition to the administrative clearing and rough grading performed in March 2024, the City Council finds that the proposed project area does not meet the definition of "Hillside" as defined by PMC Section 16.101.050 since the "natural" grades have been previously disturbed. As such, the proposed project is exempt frorn policies and regulations related to Hillside developments, specifically City Council Resolution No. 05-072 requiring limits to graded areas.

N The proposed Project plans indicate walls and/or fences will exceed maximum allowable wall heights. The City Council approves the wall heights for fire control, noise abatement, screening, and buffering to adjacent and abutting properties.

0. A Community Benefit Agreement has been developed by and between the City and Nighthawk Energy Storage, LLC, to provide tax and other revenues to the city, among other benefits, and to promote the public health, safety and welfare in the interest of the City and its residents.

SECTION 5: The findings for DR 22-0001, in accordance with Government Code Section 66020 for the public improvements needed as a result of the proposed Project to protect the public health, safety and welfare, are made as follows:

A. The design and improvements of the proposed Project are consistent with all elements of the Poway General Plan as well as City Ordinances, because common facilities will be available to serve this proposed Project. There are public facilities, services, and utilities available to the site to serve the proposed uses.

B. The construction of public improvements is needed as a result of the proposed Project to protect the public health, safety, and welfare, as further described in the conditions of approval.

C. In accordance with the Poway General Plan, the proposed Project requires the payment of development impact fees, which are assessed on a pro-rata basis to finance public infrastructure improvements, which promote a safe and healthy environment for the residents of the City. Public improvements are proposed in ways that will mitigate impacts to below levels of significance.

SECTION 6: The City Council her,eby approves DR 22-0001 as shown on the approved plans dated April 30, 2024, on file in the Development Services Department, except as noted herein, with all previous active entitlements associated with the subject property remaining in full effect, and subject to the following conditions:

A. Approval of this DR request shall apply only to the subject project and shall not waive compliance with all sections of the SPSP, Zoning Ordinance, and all other applicable City Ordinances in effect at the same time of Building Permit Issuance.

B. The Applicant shall defend, indemnify, and hold harmless the City, its agents, officers, and employees from any and all claims, actions, proceedings, damages, judgments, or costs, including reasonable attorney's fees, collectively the "Claims" against the City or its 19 of 71
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agents, officers, or employees, relating to the issuance of any aspect of the of the City's approval of this Project including, but not limited to, any action to attack, set aside, void, challenge, or annul the DR approved by this Resolution (DR 22-0001), SPA 22-0002, or any other Project development approval, implementing approvals or permits, and any environmental document or decision made pursuant to CEQA, specifically including but not limited to the City's approval of 1he Addendum. The City may elect to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnificatioh. In the event of such election, Applicant shall pay all costs related thereto, including without limitation reasonable attorney' s fees and costs.

In the event of a disagreement between the City and Applicant regarding litigation issues, the City shall have the authority 1o control the litigation and make litigation -related decisions, including, but not limited to, settlement or other disposition of the matter.

However, the Applicant shall not be required to pay or perform any settlement unless such settlement is approved by Applicant. Notwithstanding the foregoing, no indemnity shall be required for claims resulting from the exclusive gross negligence or willful misconduct of the City.

C. Within 30 days of the date of this approval, and before the issuance of any permit: (1) the Applicant shall submit in writing that all conditions of approval have been read and understood (Statement of Understanding [SOU]) and (2) the Property Owner shall execute a Covenant Regarding Real Property. In order for the City to prepare the Covenant. the Applicant must first submit a legal description of the Project site.

D. The Project shall comply with all conditions of approval and mitigation measures established under previous project entitlements unless otherwise modified or superseded by these Conditions of Approval contained herein as determined by the Director of Development Services.

E. The conditions for the Project shall remain in effect for the life of the subject property and shall run with the land and be binding upon future owners, successors, heirs, and transferees of the current property owner who is represented on the stamped approved plans on file in the Development Services Department. Any substantial changes to the approved plans must be approved by the Director of Development Services and may require approval of the City Council if the Director of Development Services finds that the proposed changes do not substantially conform to approved plans.

F. Security May be Required to Ensure Performance. In order to ensure the performance of conditions imposed concurrent with the granting or modification of a development plan, the Applicant may be required to furnish security in the form of money or surety bond in the amount fixed by the authority granting or modifying the development plan. Such security shall be furnished as required by local ordinance.

G. Provision of Required Improvements. Whenever a development review approval is granted or modified subject to the condition that specified improvements be provided by the Applicant, such improvements shall be installed by the Applicant and approved and accepted by the cognizant City authority, the Applicant shall execute an agreement with the cognizant City authority pursuant to local ordinance to make such improvements prior to the time or events specified in the development review approval.

H. Condition Declared Void. Whenever there becomes final any judgement of a court of competent jurisdiction declaring one or more of the conditions of 20 of71
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a development review approval to be void or ineffective, or enJommg or otherwise prohibiting the enforcement or operation of one or more of such conditions, said development review approval shall cease to be valid and all rights or privileges granted thereby shall lapse, as provided by PMC 17.52.110.

I~ Violation of Condition. Whenever a development review is approved or modified by the approving authority subject to a condition or conditions, such development review approval in violation of or without observance of any such conditions shall constitute a violation of the zoning ordinance and said development review approval may be revoked or modified as provided in PMC 17.52.100. (Ord. 113 §§ 1 (Ex. A 10.3.9), 2, 1983; Ord. 44 § 3 (Ex. A), 1981)
J. The developer is required to comply with the Poway Noise Ordinance (PMC Chapter 8.08) requirement that govern construction activity and noise levels.

K DR 22-0001 may be subject to annual review, as determined by the Director of Development Services, for compliance with the conditions of approval and to address unresolved operational concerns that may have been raised during the prior year.

L This approval is based on the existing site conditions and proposed project details as represented on the stamped approved plans on file in the Development Services Department. Any substantial changes to the approved plans must be approved by the Director of Development Services and may require approval of the City Council if the Director of Development Services finds that the proposed changes do not substantially conform to approved plans.

M. Project Commissioning and Decommissioning: A Commissioning Plan and a Decommissioning Plan, including the operations management plan, shall be developed and approved by the Director of Development Services prior to the start of operations.

N. If the Applicant sells, transfers, or abandons the project, the City requires approval prior to any sale, transfer or abandonment.

0. If a transfer occurs, the City requires that any new owner must upgrade and comply with latest codes upon such transfer.

P. Prior to issuance of a Building Permit, the Applicant shall obtain approval of a Grading Permit. Compliance with the following conditions is required prior to issuance of the Grading Permit:
(Engineering)
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1. A floodplain development permit for all grading and improvements proposed within the Federal Emergency Management Agency regulated floodplain and/or floodway shall be approved and issued prior to grading permit issuance. All applicable fees shall be paid prior to floodplain permit issuance.

2. Submit a precise grading plan for the development of the lot prepared on a City of Poway standard sheet at a scale of 1" = 20', unless otherwise approved by the City project engineer. The plans shall use vertical datum NAVD88. Please be aware that all elevations in the Poway Benchmark list are datum NGVD 29 and will need to be August 20, 2024, Item #5
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converted. Submittal shall be made to the Department of Development Services Engineering Division for review and approval. Grading design shall be 100 percent complete at the time of submittal, ready for approval and issuance of permit.

Incomplete submittals will not be accepted. All technical studies as required by Chapter 16 of the PMC shall be submitted. The Applicant shall pay the grading permit and plan check fee according to the latest adopted master fee schedule.

3. The Applicant shall make a separate submittal to the Building Division for any proposed non-standard walls, gates, structures, etc. The structural plan reviews shall be approved prior to grading permit issuance.

4. The Applicant shall incorporate Low Impact Development (LID) design features into the site development. These shall be clearly shown and identified on the grading plan and be appropriately sized for the proposed level of development.

5. A drainage study addressing the impacts of the 100~year storm event prepared by a licensed Civil Engineer is to be submitted and approved. The study shall evaluate existing and proposed hydrologic and hydraulic conditions to the satisfaction of the City project engineer.

6. Water Quality Control -Design and Construction
a. The project shall comply with the City and Regional Water Quality Control Board stormwater requirements.
b. The project is considered a Priority Development Project and will be subject to all City and State requirements.
c. Hazardous material storage may require additional improvements onsite. Two copies of a final Storm Water Quality Management Plan (SWQMP) prepared by a registered Civil Engineer is to be submitted and approved. d. Once the final SWQMP is approved:

1. Provide two copies of an Operation & Maintenance plan in accordance with Chapter 16.104 of the PMC, and a signed PDF version. ii. Property owner shall execute an approved Storm Water Facilities Maintenance Agreement (SWFMA) accepting responsibility for all structural BMP maintenance, repair and replacement as outlined in the Operations and Maintenance plan.
iii. The operation and maintenance requirements shall be binding on the land throughout the life of the project as outlined in section 16.104 of the PMC.

7. Water Quality Control -Construction Storm Water Management Compliance 22 of71
a. The existing Construction General Permit with the State Water Resources Control Board and the Storm Water Pollution Prevention Plan (SWPPP) shall be updated to reflect the addition of this portion of the project as a part of the August 20, 2024, Item #5
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b. Proof of coverage under the General Permit for Discharges of Storm Water Associated with Construction Activity shall be provided to the City along with a copy of the revised SWPPP.

8. Grading securities shall be posted with the City prior to grading plan approval per section 16.46.080 of the PMC. A minimum cash security of $2,000.00 is required in all instances.

9. The Applicant shall pay the storm water pollution inspection fee according to the latest adopted master fee schedule.

10. Any existing and proposed public easements shall be depicted on the grading plans.

The proposed public easement dedications shall be submitted prior to grading permit issuance.

11. Any private improvements within any publicly held easement or right-of-way may require an encroachment agreement as determined necessary by the Clty Engineer.

Alf necessary encroachment agreements shall be approved and executed prior to grading permit issuance.

12. Following approval of the grading plans, posting of securities and fees, and receipt of three copies of the approved plans, the Applicant shall attend a pre-construction meeting at the Development Services Department. The scheduling request shall be submitted on a City standard form found at
https://poway. orq/DocumentCenter/View/1 0254/Precon structi o n-M eeti ng-Req uest- F illa b le? bid Id= along with three copies of the approved grading plans. The Applicant's action plan that identifies measures to be implemented during construction to address erosion, sediment and pollution control will be discussed. Compliance for sediment control shall be provided as directed by the project inspector.

13. Prior to the start of any work within a City-held easement or Rfght-of-Way (ROW), a ROW Permit shall be obtained from the Engineering Division of the Development Services Department. All appropriate fees shall be paid prior to permit issuance. Plans submitted shall include utility crossing information (elevations, pipe sizes, materials, etc.). The SDG&E project and ROW Permit numbers shall be referenced on the grading plan.

14. Construction staking is to be inspected by the Engineering Inspector prior to any clearing, grubbing or grading. At a minimum, all protected areas as shown on the approved grading plans are to be staked under the direction of a licensed land surveyor or licensed civil engineer and delineated with lathe and ribbon. As applicable, provide two copies of a written certification, signed and sealed in accordance with the Business and Professions Code, by the engineer of record stating that all protected areas have been staked in accordance with the approved plans.

15. The water main shall be a looped water system.
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16. The development shall comply with the current edition of the California Building Code, California Plumbing Code, California Mechanical Code, California Electrical Code, California Fire Code, California Energy Code and California Green Code at time of submittal to the Building Division. All development shall comply with state structural calculations and seismic safety requirements.
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17. Necessary building permits need to be submitted and fin a led prior to construction.

18. The Applicant shall submit landscape and irrigation plans after the grading plan is approved but prior to building permit issuance. Landscape plans must conform to the standards provided in the PMC 17.41 Landscape and Irrigation Efficiency, PMC 12.32 Urban Forestry, and the Poway Landscape and Irrigation Design Manual, and other regulations as required.

19. The landscape and irrigation plan submittal is a separate submittal from other project plan check submittals and is made directly to the Planning Division. Contact the Planning Division for copies of applicable City standards, the landscape and irrigation plan submittal checklist and the plan review fee worksheet. Landscape and irrigation plan review fees are required and are the responsibility of the Applicant.

20. The grading and improvement plans shall show any existing trees on the project site.

The Tree Removal Permit will be required to be updated and concurrent with the Landscape Plans. Tree removal of both public and private trees, as needed shall conform to PMC Chapter 12.32 (Urban Forestry).

21. Biological Conditions of Approval:
a. Rough grading occurred in February 2024. No active nests were found at that time, and no nests have been found to be abandoned as of July 23, 2024.

Avoidance of potential impacts to habitat for endangered and protected species, such as Coastal Sage Scrub (CSS), Southern Mixed Chaparral (SMC), California Gnatcatcher, Crotch's Bumblebee, and Quino Checkerspot Butterfly, is a preferred mitigation. In accordance with Condition Hof the Poway Subarea Habitat Conservation Plan (PSHCP) Incidental Take Permit, a take of active California Gnatcatcher nests, raptor, and other migratory bird nests, which includes harassment of the bird due to grading noise and vibrations from February 15 through July 1, (Migratory Bird Treaty Act specifies the migratory season to be March 1 -August 31) is not permitted. Because proposed development will be within 500 feet of CSS habitat (specifically, the parcels to the east and west), the habitat of the California Gnatcatcher, grading activities during this time frame will only be permitted subject to the following conditions having been met to the satisfaction of the Director of Development Services.

I. Th'e Applicant is hereby advised during grading, if active nests are found within 500 feet of the grading, grading activity shall be stopped until such time as mitigation measures, to the satisfaction of the City and the California Department of Fish and Wildlife (CDFW), are implemented. There is no guarantee that grading will be allowed to resume during nesting or migratory bird season.

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ii. Since March 2024, the Applicant has provided bi-monthly bird surveys of this project site to ensure protection of the CSS and SMC habitats.

These reports were required to continue during the recognized nesting season for birds (February 15 through August 15) in accordance with California State codes and the Federal Migratory Bird Treaty Act of 1918. At or within four days prior to grading activities, the Applicant shall provide to the Planning Division a letter from a qualified biologist retained by the Applicant, with a scope of work for a CSS habitat and Gnatcatcher Survey, and a report for the area to be cleared and/or graded and CSS habitat areas within 500 feet of such area. The biologist shall contact the CDFW to determine the appropriate survey methodology. The purpose of the survey is to determine if any active gnatcatcher nests are located in the area to be cleared or graded or contained in the CSS habitat within 500 feet of such area. To be considered qualified; the biologist must provide the City with a copy of a valid Gnatcatcher Recovery Permit from the U.S. Fish and Wildlife Service (USFWS).
iii. The scope of work shall explain the survey methodology for the biological survey and the proposed gnatcatcher nest monitoring activities during the clearing/grading operation. Should the report show, to the satisfaction of the Director of Development Services, that gnatcatcher nests are not present within the area to be graded/cleared, or within CSS habitat located within 500 feet of said area, approval may be granted to commence clearing/grading within the gnatcatcher nesting season from February 15 through July 1, extending to August

31. iv. If gnatcatchers or other protected species are nesting within the area to be graded/cleared, or within CSS or SMC habitat located within 500 feet of said area, no grading will be allowed during this time. v. The biologist must attend the City's pre-construction meeting for the project and must be present onsite during all clearing/grading activities to rnonitor that the clearing/grading activities stay within the designated limits. During this period, the biologist shall also monitor and survey the habitat on a daily basis, within the area to be cleared/graded and any habitat within 500 feet of said area for any evidence that a gnatcatcher, raptor, or migratory nest(s) exists or is being built. Weekly monitoring summaries shall be submitted to the Planning Division. Should evidence of a gnatcatcher nest(s) be discovered, the grading operation shall cease in that area and be directed away from the gnatcatcher nest(s) to a location greater than 500 feet away from the nest(s). vi. The Applicant shall be required to provide erosion control, to the satisfaction of the City Engineer.
vii. Upon completion of the clearing/grading activities, the Applicant's biologist shall submit to the Director of Development Services a biological monitoring report summarizing the daily observations of the August 20, 2024, Item #5
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biologist, including whether any gnatcatchers or evidence of active gnatcatcher nests were present during clearing and grading activities within the area and any habitat within 500 feet of said area. b. These conditions must be included as a note on the cover or notes sheet(s) of the clearing/grading plan.

22. Cultural Conditions of Approval:
a. In accordance with the Cultural Resources study dated February 20, 2024, prepared for the project by Dudek Environmental, one resource was identified within the project area. This resource does not contain any unique characteristics, nor does it contain data potential beyond existing documentation. Therefore, this resource is recommended as not significant under CEQA. This resource was likely destroyed by the rough grading, administrative clearing or other construction activities. As this resource has no data potential or any other historical significance, the impacts would be considered less than significant and do not require any management actions. i. Due to the heavily disturbed nature of the project site, and minimal presence of archaeological resources within the project site, no further management recommendations are necessary beyond standard measures to address unanticipated discoveries of cultural resources and human remains.
ii. While no archaeological monitoring is recommended in the Cultural Study, the City will perform consultation with Native American tribes at their discretion. Any specific requirements the applicant has received previously from the Tribes shall be reviewed and approved by the City:.

0. Prior to issuance of a Building Permit the Applicant shall submit building plans consistent with the approved project plans on file in the Development Services Planning Division.

Compliance with the following conditions is required prior to issuance of the Building Permit:
(Engineering)
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1. The site shall be developed in accordance with the approved grading plans on file in the Development Services Department and the conditions contained herein. Grading shall be in accordance with the Uniform Building Code, the City Grading Ordinance, the approved grading plan, the approved soils report, and grading practices acceptable to the City.

2. Erosion control shall be installed and maintained by the developer from October 1 to April 30. The developer shall maintain all erosion control devices throughout their intended life.

3. Applicant shall obtain a Grading Permit and complete rough grading of the site. The grading shall meet the approval of the Engineering Inspector and the project's geotechnical engineer. Following completion of rough grading, please submit the August 20, 2024, Item #5
following:

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a. Two copies of certification of line and grade for the lot, prepared by the civil engineer of work.
b. Two copies of a soil compaction report for the lot, prepared by the project's geotechnical engineer.
c. The certification and report are subject to review and approval by the City.

4. Improvement plans prepared on a City of Poway standard sheet at a scale of 1" = 20\ unless otherwise approved by the City project engineer, in accordance with the submittal and content requirements listed in the PMC shall be approved. Submittal shall be made to the Department of Development Services Engineering Division for review and approval. The improvement design shall be 100% complete at the time of submittal and ready for approval. The Applicant shall pay the improvement plan check fees according to the latest adopted master fee schedule. The plan shall include, at a minimum, the following features:
a. Public water improvements including three fire hydrants and related appurtenances connecting to the public water main located in Kirkham Way.
b. A plat and legal description for a minimum 20' wide water easement shall be submitted concurrently to accommodate the public water main on the project site.

5. The Applicant shall enter into a Standard Agreement for the work to be done as part of the Public Improvement plan. The Applicant will be responsible for posting securities for public improvements in accordance with the PMC Section 16.20. (Planning)

6. School impact fees shall be paid at the rate established at the time of Builqing Permit issuance. Please contact the Poway Unified School District for additional information at (858) 679-2570.

7. The Applicant shall comply with the latest adopted construction related codes, and all other applicable codes and ordinances in effect at the time of Building Permit issuance.

8. Exterior building and wall materials and finishes shall be specified on the building plans and to comply with the SPSP design guidelines to the satisfaction of the Development Services Director.

9. Site lighting, including lights on poles and on structures, shall be shielded and shall comply with SPSP and PMC standards. Wall-mounted security lights shall only be used on the rear or interior sides of buildings.

10. Any signs proposed for this development shall be designed and approved in conformance with the SPSP. The necessary Sign Permit(s) and Building Permit(s) approvals for sign age shall be obtained prior to installation. 27 of 71
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(Public Works -Drainage)

11. All stormwater assets on property will be private, and not maintained by the city. (Public Works -Recycled Water)

12. This site was recorded to have Recycled Water (RW) for irrigation at one time. An Inspection and Test may be required to confirm the existence/abandonment of Recycled Water on site.

13. Existing RW irrigation, as noted on the PacRim Mapping Information Sheet# C0-02 is currently the responsibility of Granite Construction.
a. Recycled water lines are located along the frontage and slope irrigation along Kirkham Way and the slope to the east of the Granite driveway. b. Recycled water irrigation lines run the length of the private drive (Paine Street) on the west side.
c. There are additional recycled water laterals to the private reservoir and cross under the driveway to the east, where the reservoir is located at the midpoint of the subject parcel.
d. Any damaged recycled water irrigation lines are to be repaired with approved materials in accordance with the original approved plans and with agreement with the City.
e. Any major amendments to the existing recycled irrigation systems are to be marked in red on plans to be approved by the City.
f. Provide the location of recycled water service (point of connection) on plans. g. There may be a requirement for additional meter installation(s). h. Major amendment plans for the recycled water systems are to be submitted to Development Services Department and to the County of San Diego Department of Environmental Health.
(Public Works -Operations)

14. Note: a large portion of the updated plans show construction on and south of Beeler Canyon Rd, which is the City of San Diego's jurisdiction.

R. The following improvements shall be provided to the satisfaction of the Fire Chief:

1. The Nighthawk BESS project and operation is located within the very high fire hazard severity area and shall comply with all applicable 2022 California Fire and Building Codes, and the PMC.

2. Ignition Resistant Class I construction is required as described in the California 28 of 71
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Building Code Chapter 7A.

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3. An approved water supply capable of supplying the required fire flow for fire protection shall be provided to all premises upon which facilities, buildings, or portions of buildings shall be constructed. A new water main and fire hydrants shall be located within 400-feet of the structures following an approved route. A water analysis shall be performed to establish the adequacy of the existing water main and all necessary system design to serve the project. Costs of the water analysis shall be the responsibility of the Applicant. A separate City Water Improvement Plan shall be submitted.

4. The approved water supply for fire protection, either temporary or permanent, shall be made available as soon as combustible material arrives on site. A plan submittal for temporary water is required to the fire department for review and approval.

5. All structures shall be accessible to fire department apparatus by way of fire apparatus access roadways/driveways. Fire apparatus access roads shall have an unobstructed, improved width of not less than 20 feet and vertical overhead clearance shall be a minimum of 13 feet 6 inches. Fire apparatus access roads shall be designed and maintained to support the imposed loads offlre apparatus not less than 75,000 pounds unless authorized by the Fire Authority Having Jurisdiction (FAHJ) and shall be provided with an approved paved surface as to provide all-weather driving capabilities.

A paved driving surface shall mean asphalt, concrete, or permeable paving system, The turning radius of a fire apparatus access road shall be a minimum of 28 feet as measured to the inside edge of the improvement width.

6. The approved fire apparatus access roadway/driveway for fire protection, either temporary or permanent shall be made available as soon as combustible material arrives on site. A plan submittal for temporary access is required to the fire department for review and approval.

7. Fire apparatus access roadway/driveway shall extend to within 150 feet of all portions of the structures as measured by an approved route around the exterior of the building.

8. The gradient for a fire apparatus access roadway shall not exceed 20 percent. Grades exceeding 15 percent shall be constructed of Portland Cement Concrete (PCC), with a deep broom finish perpendicular to the direction of travel.

9. The angle of departure and the angle of approach of a fire access roadway shall not exceed 12 percent.

10. All dead-end fire access roads greater than 150 feet in length shall be provided with approved provisions that allow emergency apparatus to turn around.

11. Fire apparatus access roadways, permanent or temporary, shall satisfactorily pass all required tests and inspections, and be approved by the City.

12. Approved address numbers shall be placed plainly visible and legible from the roadway fronting the property from either direction of approach. Address numbers shall contrast with their background and meet the City's standards.

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13. Structures located within the very high fire hazard severity area shall be setback a minimum of 30-feet from property lines and biological open space easements.

14. Single-story structures within the very high fire hazard severity area shall be setback a minimum 15-feet horizontally from top of slope to the farthest projection from a roof.

A two-story structure shall be set back a minimum of 30-feet horizontally from top of slope to the farthest projection from a roof.

15. This project shall comply with Section Four of the City of Poway Landscape and Irrigation Design Manual and PMC 15.24 as it relates to fuel management and defensible space. 260-feet of fuel management consisting of 200-feet of Zone A and 60-feet of Zone B, is required. 20-feet of vegetation fuel modification, meeting Zone B requirements, shall be maintained on both sides of the fire apparatus access roadway/driveway fronting the property when not already within a fuel modification zone. Mitigation shall be required where 100-feet of defensible space fuel modification zones cannot be achieved within the parcel boundaries.

16. All flammable vegetation within the approved fuel modification zone shall be removed prior to the arrival of combustible material on the site and shall be maintained during the duration of the project until all elements of the approved fuel modification zones are installed and approved. All automatic gates across fire apparatus access roadways/driveways shall be equipped with a Knox Gate Key Switch.

17. Design and installation for the battery energy storage system is required to meet the 2022 California Fire Code {CFC) Section 1207 Electrical Energy Storage Systems (ESS).

18. A deferred Fire Department Construction Permit plan submittal for the installation of the energy storage system is required for fire department review and approval in accordance with the CFC.

19. Energy Storage System and Lithium Batteries Fire Department Operational Permits shall be required in accordance with CFC and will require annual fire department inspections.

20. A 12-foot•high fire wall shall surround the property.

21. Vehicle protection shall include 2 bollards on the short side corners and 4 bollards along the long sides of the BESS units along all access roadways.

22. Three (3) City of Poway Fire Department shift BESS suppression trainings shall be included annually. One training per fire suppression divisions (A, B, & C Shifts).

S. Compliance with the following conditions is required prior to issuance of a Certificate of Occupancy and release of securities:
(Engineering)

1. The stormwater facilities shall be complete and operational prior to occupancy.

2. The Applicant shall install approved trash treatment devices per the SWTFMA to the 30 of 71
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3. All applicable easement dedications and maintenance agreements are to be recorded prior to occupancy.

4. All existing and proposed utilities or extension of utilities required to serve the project shall be installed underground, excepting required above ground facilities, such as hydrants. No extension of overhead utilities shall be permitted.

5. All utility services shall be installed and completed by the property owner and inspected and approved by the Engineering Inspector. All new utility services shall be placed underground.

6. The drainage facilities, driveway, slope planting measures, and all utility services shall be installed, ahd completed by the property owner, and inspected by the Engineering Inspector for approval.

7. An adequate drainage system around the new building pad capable of handling and disposing of all surface water shall be provided to the satisfaction of the Engineering Inspector.

8. The Applicant shall repair, to the satisfaction of the City Engineer, any and all damages to public improvements caused by construction activity from this project.

9. After completion of all work, record drawings for both the grading and improvement plans, signed by the engineer of work, shall be submitted to the Development Services Department for review prior to a request of occupancy, per Section 16.52.130B of the Grading Ordinance. Approval of all record drawings is required prior to issuance of occupancy and release of grading and improvement securities. Initial submittal of record drawings at least three weeks prior to a request for occupancy is recommended.
(Planning)
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10. Approval of this request shall not waive compliance with all sections of the SPSP, Zoning Ordinance and all other applicable City regulations in effect at the time of Building Permit issuance.

11. Landscaping and irrigation shall be installed per the approved landscape plans.

12. Any signs proposed for the Project shall be designed in accordance with the Sign Ordinance. The necessary Sign Permit(s) and Building Permit(s) approvals for signage shall be obtained prior to installation.

13. Prior to any use of the project site, or business activity being commenced thereof, all conditions of approval contained herein shall be completed to the satisfaction of the Director of Development Services.

14. Final inspections1 including Planning inspection, is required prior to the Certificate of Occupancy.

August 20, 2024, Item #5
T. Compliance with the following conditions is required upon occupancy:

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1. Prior to opening of business, the Applicant shall apply to obtain a Business Certificate through the Customer Services Department with the City. Prior to a business Certificate, the site shall be developed in accordance with the approved plans on file in the Development Services Department and the conditions contained herein. A final Inspection from the appropriate City departments will be required.

2. All landscaped areas shall be maintained in a healthy and thriving condition, free from weeds, trash and debris. The trees shall be encouraged and allowed to retain a natural form. Pruning should be restricted to maintaining the health of the trees and to protect the public safety. Unnatural or excessive pruning, including topping, is not permitted, SECTION 7: The current project approval of Development Review 22-0001 shall expire on August 20, 2026, at 5:00 p.m., unless a Building Permit has been issued, and construction or use of the property in reliance on this permit has commenced on the property; unless a request for a time extension is submitted to the Development Services Department and a time extension is subsequently granted by the City Council. prior to the expiration.

SECTION 8: The parties are hereby informed that the time within which judicial review of this extension must be sought is governed by Section 1094.6 of the California Code of Civil Procedure.

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Poway, California on the 20th day of August, 2024 by the following vote, to wit:

AYES:

NOES:

ABSTAINED:

ABSENT:

DISQUALIFIED:

Steve Vaus, Mayor
ATTEST:

Carrie Gallagher, CMC, City Clerk
32 of71
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RESOLUTION NO. 24-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

POWAY, CALIFORNIA, APPROVING A COMMUNITY BENEFIT

AGREEMENT FOR THE NIGHTHAWK BATTERY ENERGY
STORAGE SYSTEM (BESS) ON A 10-ACRE PAD OF A 83-ACRE
PARCEL; ASSESSOR'S PARCEL NUMBER 320-031-03-00
WHEREAS, Nighthawk Energy Storage LLC (Applicant) has proposed to construct an approximately 300-Megawatt (MW) battery storage facility (Project) on a 10-acre portion of a mineral extraction site in the South Poway Specific Plan (SPSP) are just north of Beeler Canyon Road (Project Property). The Project Property is located in the southern portion of the City, north of Beeler Canyon Road, south of Kirkham Way, and approximately 1.2 miles east of Interstate 15, addressed as 13501 Kirkham Way;
WHEREAS, in connection with its review and approval of the Project, the City prepared an Addendum pursuant to applicable provisions of the California Environmental Quality Act (CEQA) and its implementing regulations for approval of a Specific Plan Amendment (SPA).

Development Review Permit (DR) and other approvals as required by the City's Municipal Code (City Approvals);
WHEREAS, Applicant acknowledges that the City maintains certain municipal services for, or infrastructure relied upon by, the Project;
WHEREAS, the City acknowledges that the Project will provide tax and other revenues to the City, among other benefits;
WHEREAS, the Applicant and the City negotiated this Agreement pursuant to which the Applicant will provide certain benefits to the City and community in connection with the development and construction of the Project;
WHEREAS, the City finds that this Agreement protects and promotes public health, safety and welfare and is in the interest of the City and its residents; WHEREAS, on August 20, 2024, the City Council held a duly advertised public meeting to solicit comments from the public, both for and against, relative to this Agreement; WHEREAS, the City Council has read and considered the Community Benefit Agreement for the Proposed Project, attached to this Resolution as Exhibit 1, including Exhibits A-8 the Agreement), and has considered all other evidence presented at the public hearing; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows:

SECTION 1: The Above Recitals are true and correct.

SECTION 2: If approved, the Agreement provides a guarantee that the City will receive a minimum of $3.5 million in total sales and use tax revenue from the development and construction of the Project once it is operational and connected to the electrical grid.

SECTION 3: The Agreement provides a guarantee that the City will receive a minimum 33 of 71 ATTACHMENT D
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of $6.5 million in total property tax revenue over the 20-year term of project operation based on the annual amounts reflected in Exhibit A to the Agreement.

SECTION 4: The Agreement provides that within 90 days of the receipt of all permits and approvals necessary for completion and construction of the Project, Applicant will provide a one-time $2.0 million "Community Benefit Fund" contribution to be utilized by the City for its choice of public or community project(s), with the caveat that this contribution shall satisfy the balance of any Habitat Conservation Plan In-Lieu Fees required by the City.

SECTION 5: The Agreement provides that Applicant will provide a contribution of a minimum of $10,000 per year in the aggregate for the life of the Project to civic organizations operating within Poway.

SECTION 6: In addition to these financial guarantees, the Agreement also requires that in the event a fire occurs on the Project property at any time during the construction, maintenance, operation, or decommissioning of the Project, Applicant agrees to fully reimburse the City for all incident management costs incurred.

SECTION 7: This Agreement will be recorded with the County Recorder of San Diego County following full execution of the Agreement by all parties.

SECTION 8: Applicant shall defend, indemnify, and hold harmless the City, its agents, officers, and employees from any and all claims, actions, proceedings, damages, judgments, or costs, including reasonable attorney's fees, collectively the "Claims'' against the City or its agents, officers, or employees, challenging the City's approval of, or otherwise arising out of any aspect of, the Agreement. The City may elect to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification. In the event of such election, applicant shall pay all of the costs related thereto, including without limitation reasonable attorney's fees and costs. In the event of a disagreement between the City and applicant regarding litigation issues, the City shall have the authority to control the litigation and make litigation-related decisions, including, but not limited to, settlement or other disposition of the matter. However, the applicant shall not be required to pay or perform any settlement unless such settlement is approved by applicant. Notwithstanding the foregoing, no indemnity shall be required for claims resulting from the exclusive gross negligence or willful misconduct of the City.

II
II
II
II
II
II
II
II
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Poway, California on the 20th day of August, 2024 by the following vote, to wit:

AYES:

NOES:

ABSTAINED:

ABSENT:

DI SQUALi FIED:

Steve Vaus, Mayor
ATTEST:

Carrie Gallagher, CMC, City Clerk
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EXHIBIT 1

COMMUNITY BENEFIT AGREEMENT
by and between
CITY OF POWAY and NIGHTHAWK ENERGY STORAGE, LLC
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This Community Benefit Agreement ("Agreement") is entered into as of ___________ , 2024 ("Effective Date") by and between the City of Poway, a municipal corporation of the State of California ("City") and Nighthawk Energy Storage, LLC, a Delaware limited liability company ("Nighthawk"). City and Nighthawk are sometimes referred to as "Party" or collectively as the "Parties" herein.

RECITALS
WHEREAS, Nighthawk has proposed to construct an approximately 300 Megawatt (MW) battery storage facility ("Project") on a 10-acre portion of a mineral extraction site in the South Poway Specific Plan area just north of Beeler Canyon Road ("Project Property"). The Project Property is located in the southern portion of the City, north of Beeler Canyon Road, south of Kirkham Way1 and approximately 1.2 miles east of Interstate 15;
WHEREAS, in connection with its review and approval of the Project, the City prepared an Addendum pursuant to applicable provisions of the California Environmental Quality Act and its implementing regulations ("CEQA'') for approval of a Specific Plan Amendment, Site Development Permit and other approvals as required by the City's Municipal Code ("City Approvals''); WHEREAS, Nighthawk acknowledges that the City maintains certain municipal services for, or infrastructure relied up.on by, the Project;
WHEREAS, City acknowledges that the Project will provide tax and other revenues to the City, among other benefits;
WHEREAS, Nighthawk and City have negotiated this Agreement pursuant to which Nighthawk will provide certain benefits to the City and community in connection with the development and construction of the Project; and
WHEREAS1 the City finds that this Agreement protects and promotes the public health, safety and welfare and is in the interest of the City and its residents.

NOW, THEREFORE, in consideration of the promises and the mutual covenants of the Parties. the legal sufficiency of which is acknowledged, the Parties hereby agree to the following:

ARTICLE I

DEFINITIONS

1.01. "Project Sales and Use Tax Revenue" shall have the meaning set forth in Section 3.01 of this Agreement.
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1.02. "Sales and Use Tax Revenue" means the sales and use tax imposed by Chapter 3.12 of Title 3 of the Poway Municipal Code.

ARTICLE II
TERM

2.01 Term. The term of this Agreement shall commence on the effective date of the Project Approvals issued by the City of Poway for the Project (''Project Approvals Effective Date''), and shall continue in full force and effect for a period of twenty (20) years after the Project Approvals Effective Date, or at such time when the Project ceases operation, whichever occurs later ("Term").

ARTICLE Ill

ADDITIONAL COMMUNITY BENEFITS OF THE PROJECT

3.01 Additional Community Benefits: Sales and Use Tax Covenant. (a) During the Term of this Agreement, to the extent feasible and allowed by applicable law, Nighthawk agrees to use commercially reasonable efforts to maximize the total amount of all Sales and Use Tax Revenue received by the City from development and construction of the Project, for the purchase, sale or use of any and all materials, equipment, fixtures or other items upon which sales or use tax is due, including any and all sales or use tax due from any third party vendors or other contractors involved in the development and construction of the Project pursuant to the terms and conditions of a contractual agreement with Nighthawk or its contractors ("Project Sales and Use Tax Revenue"). It is anticipated the City will receive a total of at least Three and One-Half Million Dollars ($3,500,000.00} in Project Sales and Use Tax Revenue. At the end of the first full City fiscal year following completion of the Project to its operational stage connected to the electrical grid, once the data is available the City shall provide Nighthawk with an accounting, identifying the amount of all Project Sales and Use Tax Revenue received in relation to the Project, including funds received in preceding City fiscal years prior to completion of the Project as applicable. If the City determines that amount of Project Sales and Use Tax Revenue received by the City is less than $3,500,000.00, the City shall invoice Nighthawk for the difference (i.e., $3,500,000.00 less the amount of Project Sales and Use Tax Revenue actually received} and provide Nighthawk with the information relied upon by the City in making such determination (to the extent such disclosure is not prohibited by law}. Nighthawk 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 Project Sales and Use Tax Revenue, which the City shall consider in good faith. No later than thirty (30) days following the receipt of any such information from Nighthawk, the City shall notify Nighthawk in writing whether its determination of the Project Sales and Use Tax Revenue has changed and, if so, issue a revised invoice to Nighthawk. Nighthawk will remit paym~nt to the City's Finance Director within thirty (30) days of receipt of such notice, regardless of whether or not the invoice has been revised.
(b) Nighthawk shall timely report and pay all sales and use taxes relating to the Project in accordance with the laws, rules and regulations applicable to such payment. 37 of 71
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(c) Upon City request, once the data is available, Nighthawk shall supply a list of contractors and vendors for the project to assist the City will tracking Project Sales and Use Tax Revenue.
(d) Project Sales and Use Tax Revenue shall be deemed to have been received by the City if and to the extent the California Department of Tax and Fee Administration ("CDTFA") elects to offset the payment of any such Project Sales and Use Tax Revenue against any other obligations of the City.
{e) If, at any time in the future, the CDTFA, any successor to that agency, or any other government agency, determines that the amount of the Project Sales and Use Tax Revenue allocated to the City was incorrect and over-allocated ("Adverse Tax Determination"), Nighthawk shall fully indemnify and hold the City harmless in connection with all disputes arising out of the Adverse Tax Determination, shall bear all costs associated with any Adverse Tax Determination, and pay the full amount, on the City's behalf, of any refund or overallocation of the Project Sales and Use Tax Revenue required by CDTFA or any other applicable government agency. The City shall, at Nighthawk's request, appeal or dispute any Adverse Tax Determination at Nighthawk's election, and Nighthawk shall fully indemnify and hold the City harmless in connection with any such appeal and all other disputes arising out of the Adverse Tax Determination. If Nighthawk has paid the full amount, on the City's behalf, of any refund or overallocation of the Project Sales and Use Tax Revenue required by CDTFA or any other applicable government agency, and the City still decides to appeal, then the City shall bear its own cost of appeal. The obligations set forth in this Section 3.01(d) shall survive the Term and any earlier termination of this Agreement.

3.02 Additional Community Benefits: Property Tax Covenant. (a) The improvements to the real property from construction and operation of the Project are expected to increase the real property valuation upon which property taxes are assessed, resulting in additional municipal revenue. Beginning with the first full City fiscal year following completion of the Project, and for the all subsequent City fiscal years of Project operation ("Tax Term"), it is anticipated the City will receive a total of at least Six and One-Half Million Dollars ($6,500,000.00) in Property Tax Revenue relating to the Project Property over the Tax Term, in the projected annual amount as set forth in Exhibit A attached hereto and incorporated herein by this reference ("Project Property Taxes''). On the 15th day of each August of each calendar year during the Tax Term, the City shall provide Nighthawk with an accounting, identifying the amount of Project Property Taxes received {i) in the preceding City fiscal year and (ii) since the first full City fiscal year following completion of the Project, as authenticated by the San Diego County Treasurer~Tax Collector's (''County Collector") records. If the City determines that amount of Project Property Taxes collected since the first full City fiscal year following completion of the Project is less than the amount projected in Exhibit A through such City fiscal year, the City shall invoice Nighthawk for the remainder amount (i.e., the amount projected in Exhibit A through the current City fiscal year less the amount of Project Property Taxes actually received by the City to date) and provide Nighthawk with the information relied upon by the City in making such determination (to the extent such disclosure is not prohibited by law). Nighthawk shall have thirty (30) 38 of71
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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 Nighthawk, the City shall notify Nighthawk in writing whether its determination of the City Property Taxes has changed and, if so, issue a revised invoice to Nighthawk. Nighthawk will remit payment to the City's Finance Director within thirty (30) days of receipt of such notice. (b) Nighthawk shall timely report and pay all property taxes to the County Collector in accordance with the laws, rules and regulations applicable to such reporting. (c) Project 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 Project Property Taxes against any other obligations of the City.

3.03 Additional Community Benefits: Community Benefit Fund. Within ninety (90) days of the Project's receipt of all permits and approvals necessary for completion of construction of the Project, Nighthawk shall cause to be contributed a one-time donation to the City, via its Finance Director, in the amount of Two Million Dollars ($2,000,000.00) for a "Community Benefit Fund" to be utilized by the City for its choice of public or community project(s), except that the Parties agree that this contribution shall satisfy the balance of any Habitat Conservation Plan In-Lieu Fees required by the City pursuant to the Project entitlements or City Municipal Code. The Parties agree that any Habitat Conservation Plan In~ Lieu Fees already tendered to the City shall not be reimbursed. The Parties agree to cooperate in good faith to prepare and process the appropriate documentation for such contribution, including by providing such documentation reasonably requested by a Party for tax reporting purposes. Separate from the Community Benefit Fund, as part of its own cornmunity giving operations directed by Nighthawk, Nighthawk further agrees to provide a contribution of a minimum of $10,000 per year in the aggregate to civic organizations operating within Poway, commencing with the first January 1st following the commencement of the operation of the Project. and continuing each January 1st of each year, for the entire Term of this Agreement (i.e., life of the Project). Upon City request, once the data is available, Nighthawk shall provide a statement itemizing its annual contributions to civic organizations operating in Poway.

3.04 No Obligation to Construct or Operate the Project. Nothing in this Agreement shall impose any obligation on Nighthawk to construct or operate the Project and its related facilities, nor shall this Agreement constitute a guarantee by Nighthawk that any person or entity will receive any minimum amount of direct or indirect revenue in connection with the Project, except as specifically set forth herein.

3.05 Emergency Response. In the event a fire occurs on the Project Property at any time during the life of the Project that is caused by the construction, maintenance, operation or decommissioning of the Project, Nighthawk agrees to fully reimburse the City for all incident management costs, including but not limited to the cost of all consumable materials (examples include water and/or foam) used during emergency operations to suppress the fire and protect exposures from fire spread, as well as the costs of all consumable materials associated with recovery (examples include ongoing water quality testing and/or stormwater mitigation). Incident management costs include, but are 39 of71
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not limited to, all overtime staffing costs associated with the response and recovery, this includes not only overtime for Fire personnel assigned directiy to incident, but also overtime for backfilling staff at other fire stations to ensure the City is staffed for responses to other incidents, as well as overtime for non-Fire staff associated with the response and recovery. Examples of other staff costs associated with the response and recovery include the Public Works Department, Development Services Department, the San Diego County Sheriff's Department, and the San Diego County Hazardous Materials Division.

Additionally, Nighthawk agrees to fully reimburse the City for any costs to replace personal protection equipment or any other vehicle and non-vehicular equipment damaged in the course of responding to such a fire on the Project Property.

ARTICLE IV

MISCELLANEOUS

4.01 Right to Cure Defaults; Resolution of Disputes.
(a) If either Party fails to perform any obligation under this Agreement (such failure an ''Event of Default"), then such Party shall not be in default under this Agreement if:
(i) in the case of an Event of Default for failure to pay when due any amounts payable under this Agreement (a "Monetary Default"), such Party pays the past due amount within thirty (30) days after receiving written notice of such Event of Default (such notice a "Notice of Default") from the non-defaulting Party; or
(ii) in the case of an Event of Default other than a Monetary Default (a ' 1 Non-
Mohetary Default"), the Non-Monetary Default is cured within sixty (60) days after receiving a Notice of Default from the non-defaulting Party; provided, however, that if the nature of the Non-Monetary Default requires, in the exercise of such Party's commercially reasonable diligence, more than sixty (60) days to cure, then such Party shall not be in default under this Agreement as long as it commences performance of the cure within sixty (60) days and thereafter diligently pursues such cure to completion. (b) The Parties intend that all disputes arising under or in connection with this Agreement be resolved as expeditiously as possible, by mutual, good faith negotiation, which may include but is not limited to one (1) or more amendments to this Agreement. If a dispute arises and (i) is not related to an Event of Default or (ii) is related to an Event of Default for which the time to cure under Section 4.01 (a) has expired, a Party shall send a written notice to the other Party summarizing the dispute and requesting a meet and confer. As soon as commercially practical, each Party shall provide an authorized representative to enter into good faith negotiations to resolve such dispute in a mutually satisfactory manner. If despite such good faith efforts, the authorized representatives are not able to achieve a mutual understanding with respect to the dispute within fifteen (15) business days following their initial meeting, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover dan,ages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy available under applicable law and consistent with the purposes of this Agreement. Venue shall be in San Diego County Superior Court, and the Parties waive any ability to transfer venue otherwise available at law, specifically including 40 of 71
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Resolution No. 24-

Page 9 ends

pursuant to California Code of Civil Procedure ("CCP") § 394. For the avoidance of doubt, if either Party continues to negotiate after fifteen (15) business days from the aforementioned initial meeting, such continued negotiation does not waive such Party's right to pursue litigation.

4.02 Indemnification.
(a) Nighthawk shall indemnify and hold harmless City, its affiliated agencies, their agents, officers, consultants, contractors, attorneys, elected officials and employees (each an "Indemnified Party", and collectively the "Indemnified Parties") from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death (each a "Claim\ and collectively, "Claims"), against an Indemnified Party (i) brought by a third party to set aside, void, or annul the approval of this Agreement or the City Approvals or (ii) for personal injury or property damage arising out of, or pertaining to, Nighthawk's work on the Project, including without limitation any Claims for payment of all damages, expert witness fees and attorney's fees and other related costs and expenses (each Claim under the foregoing subsections (i) and (ii) an "lndemninable Claim''). (b) If an lndemnifiable Claim is filed against any Indemnified Party, Nighthawk shall tender to the City a $75,000 litigation deposit within ten ( 10) business days of notice from City of such lndemnifiable Claim and shall refresh the deposit to $75,000 within ten (10) business days from receipt of a notice from the City that the litigation deposit balance is below $20,000. Nighthawk shall provide for the defense and indemnity of the Indemnified Party(ies) with counsel of the City's choosing, at is sole discretion, unless Nighthawk assumes the defense as to an lndemnifiable Claim under Section

4.02(a)(ii). The filing of any Claim or lndemnifiable Claim shall not delay or stop the development, processing or construction of the Project unless an injunction or other col.lrt order prevents such activity. (c) Notwithstanding Sections 4.02(a) and 4.02{b) or anything to the contrary contained in this Agreement, under no circumstance shall Nighthawk be obligated to indemnify or hold harmless any Indemnified Party from any Claim or lndemnifiable Claim arising from or otherwise attributable to the gross negligence or willful misconduct of any Indemnified Party. (d) Section 4.02 shall survive the Term and any earlier termination of this Agreement.

4.03 Relationship of the Parties. Neither Party to this Agreement shall have any responsibility whatsoever with respect to the services provided or contractual obligations or liabilities assumed by the other Party. Nighthawk is an independent contractor undertaking a wholly private development, and nothing in this Agreement shall be deemed to constitute either Party as a partner, agent or legal representative of the other Party or to create any fiduciary relationship between the Parties.

4.04 Assignment; Collateral Assignment; Mortgagee Protection. (a) This Agreement shall be binding on each Party's successors and assigns. (b) Without limiting the generality of Section 4.04(a), Nighthawk may, without the prior 41 of 71
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Resolution No. 24-

Page 10 ends

written approval or consent from the City, mortgage, collaterally assign, or otherwise encumber and grant security interests (collectively, "Security Interests'') in all or any part of its interest in this Agreement and/or the Project and its related facilities. The holders of such Security Interests and their designees and assigns are collectively referred to herein as "Mortgagees" and each a "Mortgagee". Nighthawk shall give the City notice information as to any Mortgagee, and thereafter, the City shall deliver any Notice of Default to any Mortgagee at the same time it delivers any Notice of Default to Nighthawk. Each Mortgagee shall have the same amount of time to cure as Nighthawk and the same right to cure any Event of Default as Nighthawk. Each Mortgagee shall have the right, but not the obligation, to substitute itself for Nighthawk and perform the duties of Nighthawk hereunder for purposes of curing any such Event of Default. In the event this Agreement is terminated due to the bankruptcy or insolvency of Nighthawk, upon the written request of any Mortgagee, the City shall agree to a community benefit agreement on substantially similar terms and conditions as agreed to herein with such Mortgagee(s).

4.05 Notices. Any notices required to be given under this Agreement shall be deemed delivered when posted as received by the United States Postal Service system, with certified and return receipt requested, addressed to the following persons (or such other persons that the receiving Party may designate in writing during the Term of this Agreement and upon notice to the other Party in accordance with this Section 4.05):

If to the City of Poway:

With a copy to:

If to Nighthawk:

With a copy to:
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City of Poway
Attn: City Manager
13325 Civic Center Drive
Poway, CA 92064
Alan Fenstermacher, Esq.

Rutan & Tucker
18575 JambOree Road, 9th Floor
Irvine, CA 92612
[email protected]
Josh Coon
Director of Development
Nighthawk Energy Storage, LLC
c/o Arevon Energy
8800 N. Gainey Center Drive, Suite 100
Scottsdale, AZ 85258
[email protected]
Jeffrey W. Forrest, Esq.

Sheppard Mullin Richter & Hampton, LLP
501 W. Broadway, 18th Floor
San Diego, CA 92101
[email protected]
August 20, 2024, Item #5
Resolution No. 24-

Page 11 ends

4.06 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California.

4.07 Third-Party Rights. Except as expressly set forth in this Agreement, the provisions of this Agreement are not intended to create. and do not create, any rights of any kind, whether express or implied, in third persons or Parties to this Agreement.

4.08 Severability. In the event that any provision of this Agreement shall, for any reason, be determined to be invalid, illegal or unenforceable in any respect, the Parties shall negotiate in good faith and agree to such amendments, modifications or supplements of or to this Agreement to the maximum extent practical. In light of such determination, implement and give effect to the intentions of the Parties as reflected herein, and the other provisions of this Agreement shall, as so amended, modified, supplemented, or otherwise affected by such action, remain tn full force and effect.

4.09 Entire Agreement. This Agreement constitutes the entire Agreement between the Parties with respect to the subject matter of this Agreement. No amendment. modification or other change to this Agreement shall be effective unless made in writing, duly executed, authorized and approved by the Parties.

4.10 Attorneys' Fees. If either Party to this Agreement is required to initiate or defend litigation against the other Party in connection with the subject matter of this Agreement, the prevailing Party in such action or proceeding. as defined in CCP § 1032, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to receive reimbursement of its reasonable attorneys' fees.

Attorneys' fees shall include fees on any appeal, and in addition, a Party entitled to reasonable attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions, discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to a final judgement.

4.11 Time is of the Essence. Time is of the essence in the performance of those provisions of this Agreement to which time is a material element.

4.12 Conflicts of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement which affects the financial interest of any corporation, partnership or association in which such officer or employee is, directly or indirectly, interested, in violation of any State of California or local statute or regulation.

4.13 Discrimination. Nighthawk covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, sexual orientation or gender preference, national origin, or ancestry in the performance of this Agreement.

Nighthawk shall take such affirmative action required to ensure its employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation or gender preference, national origin or ancestry.
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4.14 Corporate Authority. The person(s) executing this Agreement on behalf of each of the Parties hereto represents and warrants that (i) such person(s), if not an individual. is duly organized and existing, (ii) is duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement such Party is formally bound to the provisions of this Agreement, and (iv) the execution of this Agreement does not violate any provision of any other agreement to which such Party is bound.

4.15 Counterparts. This Agreement may be executed by the Parties in counterparts, which together shall have the same effect as if each Party had executed the same instrument.

4.16 Waiver. All waivers of performance must be in a writing signed by the Party granting the waiver. Failure by a Party to insist upon the strict performance of any provision of this Agreement shall not be a waiver of future performance of the same or any other provision of this Agreement.

4.17 Force Majeure. Neither Party shall be deemed to be In default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, tornados, hurricanes, floods, wars, terrorism, riots or similar hostilities, strikes. and other labor difficulties beyond the Party's control, government regulations, pandemics, government-ordered quarantine, court actions (such as restraining orders or injunctions), or other causes beyond the Party's reasonable control ("Force Majeure"). If any such events shall occur, the Term and the time for performance shall be extended for the duration of the impacts on the Project of each such event.

4.18 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement.

4.19 Estoppel Certificates, Either Party (or a Mortgagee) may at any time during the Term deliver written notice to the other Party requesting an estoppel certificate ("Estoppel Certificate''):
a.
of the Parties;
certifying that the Agreement is in full force and effect and is a binding obligation b. certifying that the Agreement has not been amended or modified or, if so amended or modified, identifying such amendments and/or modifications; c. cert1fying that there are no existing defaults under the Agreement to the actual knowledge of the Party signing the Estoppel Certificate, or if there are any, identifying the same; and d. containing any other reasonable certifications that may be requested by either Party (or a Mortgagee).

A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within ten (10} business days after receipt of the request. City Manager may sign Estoppel Certificates on behalf of City. An Estoppel Certificate may be relied on by assignees and Mortgagees.
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4.20 Consent. Except as expressly provided in this Agreement1 no cancellation of or amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the Parties hereto.

4.21 Recordation. The Parties shall cause a memorandum of this Agreement to be recorded in the Official Records of the County of San Diego, State of California, in the form attached hereto as Exhibit B.
(Signature Page to Follow}
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

ATTEST:

City Clerk
APPROVED AS TO FORM:

City Attorney
CITY:

City of Poway,
a municipal corporation of the State of California
City Manager
NIGHTHAWK:

Nighthawk Energy Storage1 LLC,
a Delaware limited liability company
By: ____________ _
Name: ____________ _
Title: ____________ _
( Signature Page to Community Benefit Agreement)
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August 20, 2024, Item #5
Year
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
Total
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EXHIBIT A
Project Property Taxes
Property Tax
$557,700.00
$535,200.00
$507,000.00
$484,500.00
$456,300.00
$433,700.00
$411,200.00
$383,000.00
$360,600.00
$332,400.00
$309,900.00
$287,400.00
$264,900.00
$242,500.00
$220,000.00
$197,600.00
$180,800.00
$164,000.00
$147,300.00
$24,000.00
$6,500,000.00
Resolution No. 24-

Page 15 ends

August 20, 2024, Item #5
RECORDING REQUESTED BY:

The City of Poway
AND WHEN RECORDED MAIL TO:

Nighthawk Energy Storage, LLC
c/o Arevon Energy, Inc.
8800 N. Gainey Center Dr., Suite 100
Scottsdale, AZ 85282
Attn: Asset Management

EXHIBIT B
Resolution No. 24-

Page 16 ends

THIS SPACE ABOVE FOR RECORDER'S
USE
Ml=MORANDUM OF AGREEMENT
This Memorandum of A_greement (this "Memorandum") is effective as of the date of recordation hereof and made by and between the City of Poway, a municipal corporation of the State of California (the "City"), and Nighthawk Energy Storage, LLC, a Delaware limited liability company ("Nighthawk") with reference to the following facts:

RECITALS
A. The City and Nighthawk are parties to that certain Community Benefit Agreement dated as of~-------'' 2024 (the "Agreement"), wherein Nighthawk agreed to provide certain benefits to the City in connection with Nighthawk's development and operation of a battery storage facility (the "Project") within a portion of the City.

B. The term of the Agreement commences on the effective date of the approvals issued by the City for the Project (the "Project Approvals Effective Date") and continues until the later of (i) twenty (20) years after the Project Approvals Effective Date or (ii) the cessation of the Project's operation.

NOW, THEREFORE, in consideration of the foregoing, the City and Nighthawk hereby agree as follows:

AGREEMENT

1. Recitals. The foregoing recitals are hereby incorporated herein by reference.

2. Memorandum. This Memorandum shall be recorded in the Official Records of the County of Sari Diego, State of California, to serve as notice of the existence of the Agreement.

This Memorandum in no way modifies the terms of the Agreement, and all persons are referred to the Agreement itself for its terms and conditions. To the extent any inconsistency exists between the Agreement and this Memorandum, the Agreement shall control. 48 of71
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3. Counterparts. This Memorandum may be executed in one or more counterparts, each of which when executed shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the City has caused this Memorandum to be executed by its duly authorized representative as of _________ , 2024.

City of Poway,
a municipal corporation of the State of
California

ACKNOWLEDGEMENT
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
(Signature Page to Memorandum of Agreement)
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IN WITNESS WHEREOF, Nighthawk has caused this Memorandum to be executed by its duly authorized representative as of--------~ 2024.

NIGHTHAWK:

Nighthawk Energy Storage, LLC,
a Delaware limited liability company
By: ___________ _
Name: ____________ _
Title: _____________ _

State of -------- County of ______ _
On _________ , before me, ____________ , Notary Public, personally appeared ______________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of ________ that the foregoing paragraph is true and correct.

WliNESS my hand and official seal.

Signature
(Signature Page to Memorandum of Agreement)
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August 20, 2024, Item #5
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August 20, 2024, Item #5
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August 20, 2024, Item #6
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AG EN DA REPORT City of Poway
August 20, 2024
Honorable Mayor and Members of the City Council
Audrey Denham, Director of Community Services
Allie Margis, Recreation Area Manager
858-668-4774 or [email protected]

CITY COUNCIL
Award of Agreement to Cheeseburgers in Poway, LLC to Operate the Lake Poway Concession; RFP #24-025
The Agreement for operating the concession sales area at Lake Poway between the City and current vendor is set to expire on November 3, 2024. A Request for Proposal was issued on May 16, 2024. Two proposals were received by the June 27, 2024 deadline. Based on qualifications, relevant experience, business plan, financial arrangement proposed, and financial wherewithal, staff found Cheeseburgers in Poway, LLC, to be the successful proposer.

Recommended Action:

It is recommended the City Council award the Agreement to Cheeseburgers in Poway, LLC, to operate the Lake Poway Concession and authorize the City Manager to execute the Agreement.

Discussion:

Lake Poway serves the City of Poway as both a water supply for residents, as well as an exceptional outdoor recreational amenity since 1972. Recreation opportunities include fishing and boating, pleasure boating, hiking, biking, horseback riding, seasonal camping, picnicking, and archery. The City enters into an agreement for the purpose of operating a concession during fishing and boating hours.

The concession is expected to sell packaged and prepared foods, non-alcoholic and alcoholic beverages, fishing permits, boat rentals, archery cards, merchandise related to fishing such as bait and tackle, and merchandise related to other recreational activities offered within the park.

On November 3, 2018, the City entered into an Agreement with R & B Pinto Properties, LLC, for concession services for a term of two years with the option to extend for two (2) additional two-year terms. The Agreement has exhausted its six-year term and is due to expire on November 3, 2024.

A Request for Proposals (RFP) was issued on May 16, 2024. It was advertised on the City's website 1 of21
August 20, 2024, Item #6
using BidNet Direct and mailed/emailed to 15 businesses and individuals. A legal advertisement appeared in the Poway News Chieftain on June 6, 2024 and June 13, 2024. A nonmandatory, pre proposal meeting and tour of the Lake Poway Concession took place on June 5, 2024. Two proposals were received by the June 27, 2024 deadline. Interviews were conducted with both proposers the week of June 15, 2024.

The proposals were evaluated based on the following criteria:
• Experience and qualifications
• Proposed business plan
• Proposed financial arrangement
• Financial wherewithal
The first proposal was submitted by Rick Pinto of R&B Pinto Properties, LLC. Mr. Pinto proposed maintaining the current terms of the Agreement with the City, which includes selling fishing permits, boat rentals, and archery cards on behalf of the City. The City would retain 90% of the revenue for fishing permits, boat rentals, and archery cards, and Mr. Pinto would be given 10%. Mr. Pinto would continue to offer a variety of food, snacks, beverages, as well as bait and tackle. All other concession sales beyond fishing, boating, and archery cards would be retained by Mr. Pinto. During the in-person interview, Mr. Pinto was asked about the Point-of-Sale system and his plan moving forward. Mr. Pinto stated he preferred to continue using the City's system. The City currently supplies a City-owned computer, scanner, and receipt printer, and pays all associated transaction and credit card fees for the sale of fishing permits, boat rentals, and archery cards. Mr. Pinto currently pays the transaction and credit card fees for the sale of his merchandise. All sales collected through the City's Point-of-Sale system are deposited into a City account. Through a financial administrative process, Mr. Pinto is issued a weekly check for his portion of merchandise sales and a monthly check for his 10% of fishing permits, boat rentals, and archery card sales.

The second proposal was submitted by Josh Arbenz of Cheeseburgers in Poway, LLC. Mr. Arbenz proposed staying consistent with the current revenue sharing agreement. He would sell fishing permits, boat rentals, and archery cards on behalf of the City retaining 10% of the revenue and returning 90% to the City. Mr. Arbenz proposed expanding the current offerings of the concession of packaged food, snacks, beverages, as well as bait and tackle to also include prepared foods and grilled items. In addition, Mr. Arbenz proposed upgrading the outdoor patio area with comfortable seating options to encourage guests to fully utilize the space. During his in-person interview, Mr. Arbenz was asked about his plan for a Point-of-Sale system. Mr. Arbenz proposed providing his own Point-of-Sale system that he currently uses in his other businesses. He stated that the system would generate sales reports that would be delivered to the City and the City could login in to audit sales revenue as needed.

Both proposals were evaluated using the criteria as outlined above and it was determined the business and financial arrangement offered by Josh Arbenz of Cheeseburgers in Poway, LLC, is the most favorable_ to the City.

The following is a summary of the significant changes to the current concession operations if the proposal is accepted. The proposal, in its entirety, can be reviewed in the Community Services Department.
• Expanding the food offerings to include hot fresh items like breakfast burritos, hot dogs, corn dogs, pizza by the slice, pulled pork sandwiches, hot chili, and grilled meats. 2 of21
August 20, 2024, Item #6
• Utilizing a business-owned Point-of-Sale system would streamline the transfer of revenue and would result in an annual cost savings of $9,000 in transaction fees and equipment expenses. • Upgrading the patio area to include new lounge furniture, misters, heat lamps and outdoor speakers to promote a relaxed and inviting environment.

Staff recommends awarding the Agreement (Attachment A) to Cheeseburgers in Poway, LLC, to operate the Lake Poway Concession. The term of the Agreement is for three years with the option to be extended for one additional three-year term. During the term of this Agreement, the City will continue to be responsible for the utilities and maintenance of the building. The Operator is responsible for any upgrades and any possessory interest tax associated with those additions.

Environmental Review:

This item is not subject to CEQA review.

Fiscal Impact:

There are sufficient funds budgeted in account 202020-41200 for the payment of 10% to the Concession Operator for permits sold on behalf of the City. The offsetting revenue can be found in accounts 202020-72320, 202020-72330, and 202020-72370.

Public Notification:

None.

Attachments:

A. Agreement for the Operation of the Concession at Lake Poway Reviewed/Approved By:

Assistant City Manager
3 of21
Reviewed By:

Alan Fenstermacher
City Attorney
August 20, 2024, Item #6

CITY OF POWAY

AGREEMENT FOR THE OPERATION

OF THE CONCESSION AT LAKE POWAY
This Agreement· ("Agreement"). is made and entered into this 4th day of November, 2024, by and between the CITY OF POWAY, a municipal corporation (the "City") and Cheeseburgers in Poway, LLC ("Operator"), for the purpose of awarding an Agreement for the operation and maintenance of the Lake Poway Concession at the City's Lake Poway Recreation Area.

Article I of this Agreement is for the Concession Sales Area ("Concession Agreement'?-Article II of this Agreement sets forth general terms applying to the Concession Agreement.

ARTICLE I. CONCESSION AGREEMENT
This Concession Agreement is awarded subject to the following terms, conditions, and limitations:

1. Location. The area to be governed by this Concession Agreement is that portion of the Lake Poway Recreation Area known as the Lake Poway Concession, the premises located at 14656 Lake Poway Road, as shown in Exhibit A ("Concession Premises").

2. Concession Premises Use. At all times during established operating hours and during designated holidays and special events, the Operator shall be responsible for providing the following services at the Concession Premises:
4 of21
a) Sale of food and beverages, including alcoholic beverages having an alcoholic content no greater than 20 percent by volume. Operator agrees to obtain and maintain, at Operator's sole cost, a valid permit from the Department of Alcoholic Beverage Control and to conform to all applicable laws and regulations related to the sale of alcohol. All food preparation shall comply with all applicable health code requirements.
b) Sale of City of Poway fishing permits, boating permits, drop-in camping, and archery cards on the City's behalf. The City shall retain agreed-upon revenue from the sale of fishing permits, boating permits, drop-in camping, and archery cards as noted in Article I, Section 6, Compensation and Payments. The City has sole authority to establish fees for the use of Lake Poway for fishing, boating, drop-in camping, or archery; and shall have the right to change its fees with or without notice.
c) Sale of merchandise related to fishing, such as bait and tackle, and sale of merchandise related to outdoor recreation and leisure activities, such as hiking and picnicking.
d) Prices charged for merchandise shall be comparable to market rates.

ATTACHMENT A
August 20, 2024, Item #6
e) Licensee agrees that all merchandise and services offered by Licensee are subject to approval of the City and that no merchandise will be offered for sale which, in the City's sole opinion, is not in keeping with a youth-and family-oriented recreation area.
f) At all times, the Operator shall operate the Concession Premises for the purposes set forth herein. The Concession Premises shall not be used by Operator for any other purpose. Any subsequent modification by Operator to the kind or type of merchandise sold or how the Concessions Premises are used must first be approved in writing by City.
g) Operator shall provide all necessary equipment and supplies for the sale of City permits, rentals, and programs.
h) Remittance to the California State Board of Equalization (the "SBE") of all sales and use taxes applicable to the food, beverages, merchandise, and services sold from the Concession Premises, in a timely manner, along with all reports prepared in conjunction therewith, prepared in accordance with SBE guidelines. i) Operator acknowledges that the City has the right to enter into contracts with other vendors for the sale of concession items for programs held at Lake Poway. j) Operator acknowledges that the City retains the right to allow school groups, sports leagues, and nonprofit organizations to sell food, beverages, and merchandise at the lower ball field concession stand while they are approved to utilize the lower ball field.

3. Term of Agreement: The Concession Agreement is awarded for a period of three (3) years ("Concession Agreement Term"), starting November 3, 2024. This Concession Agreement may be renewed by mutual consent for an additional three (3) year term upon its expiration, unless Operator has breached any material term of this Agreement or the City has determined, in its sole discretion, that Operator has failed to demonstrate the ability to meet the terms and conditions of this Agreement to the City's satisfaction. City reserves the right to alter the terms of the Agreement.

4. Minimum Operating Hours. Operator must maintain a fully staffed and fully operational concession sales area that is accessible to the public during all regular business hours and for various special events and holidays designated by the City. Operator has the right to open and operate the concession sales area during non-regular business hours within Lake Poway operating hours; however, fishing permits and boating permits shall not be sold during these times unless advance approval is granted by the City. The hours of operation may be changed by the City Manager or designee.

Operator shall be notified in writing seven (7) calendar days in advance of any schedule changes by the City.
5 of21
a) January through December the Lake is open daily from 6:00 a.m. to sunset.

Fishing and Boating occurs Wednesdays through Sundays. The concession can remain open on Mondays and Tuesdays or elect to close. Additional hours may be established for special events and mutually agreed upon, City-approved holidays.

August 20, 2024, Item #6
b) Concession will open on all holidays that fall on a Monday or Tuesday. Holidays that fall on a weekend that are recognized by the City on a Monday will not require the concession to open, but could be negotiated. The concession will be open on the following holidays: New Year's Day, Martin Luther King Day, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, the Day after Thanksgiving, and Christmas Eve.
c) Lake Poway offers a variety of Special Events and programs that require the concession to remain open after normal business hours. During the months of July and August, the concession will remain open until 9:00 p.m. on Friday and Saturday evenings during night fishing. The concession will remain open until 9:00 p.m. select evenings during fall campouts, spring campouts, family campouts, and the Youth Fishing Derby campout. The City has the option to increase or decrease the amount of program offerings throughout the year and will notify the concessionaire in advance of upcoming programming.

5. Employee Requirements.
a) For the purposes of this Concession Agreement "Employee" means anyone receiving compensation from Operator for services rendered on the Concession Premises. Operator agrees that Operator shall abide by all federal, state, and local labor laws.
b) Operator agrees that all employees of Operator will receive a City-furnished orientation on Lake Poway operations and local points of interest, the skills of fishing, and facilities available, sufficient to permit Operator's employees to reply adequately to questions from the visiting public. All other questions from the visiting public shall be directed to City employees.
c) Whenever the concession is open, Operator agrees that an employee over 18 years of age will be present. All minors working must have a current work permit.

An onsite staff person that is at least 18 years of age must supervise any employees used. A list of employees must be on file with the City.

6. Compensation and Payments.
6 of21
a) Operator shall remit payment to the City for 90% of gross revenue collected from the sale of all fishing permits, boating permits, drop-in camping, and archery cards.

As payment for operating the Concession Premises, Operator shall retain 10% of net gross revenue collected from the sale of all fishing permits, boating permits, drop-in camping, and archery cards. All other gross revenue collected by Operator shall remain property of the Operator.
b) Payments to the City shall be in the form of a check and received no more than 30 days after the end of each month.
c) Operator shall be responsible for all transaction fees associated with the sale of all fishing permits, boating permits, drop in camping, and archery cards.

August 20, 2024, Item #6

7. Financial Records. Operator shall keep full and accurate books of account records, cash receipts, and other pertinent data related to business and transactions. The City shall have the right to inspect and examine such records, at no cost, within five (5) business days of providing notice to Operator. In addition, the Operator must provide the City with reports (as requested by the City) in a format acceptable by the City summarizing City sales, and provide the City with access to the point of sale system to run these reports.

As soon as practicable, but no later than January 15 of each year, Operatorshall provide a profit and loss statement detailing the total revenue and expenditures and a current balance sheet.

8. Review. The Director of Community Services or designee, and Operator shall meet periodically to discuss matters of mutual concern in the administration of the Agreement. The Agreement shall be reviewed annually to enable both parties to consider operations, processes, and procedures for the purpose of making proper adjustments, if desired. Any substantive modifications of this Agreement shall be made in accordance with Article II, Section 15.

9. Utilities and Maintenance of the Concession Premises. 7 of21
a) The City agrees to provide and pay for electricity, water and trash/ recycling service to the Concession Premises. Operator agrees to pay all charges for propane, telephone, internet, and cable service used on the Concession Premises. The site has a burglar alarm system. If desired, Operator shall maintain and monitor at Operator's sole expense, including any alarm permits required by the City of Poway and the San Diego County Sheriffs Department. Costs and use of all other utilities necessary for operation shall be paid for at the Operator's sole expense, following written approval by City.
b) Operator shall pay before delinquency, all taxes and assessments assessed or levied upon Operator or the Concession Premises and its improvements by reason of this Concession Agreement (including any possessory interest tax) or on any furniture, fixtures, equipment, and personal property thereon, or by reason of the business or other activities of Operator upon or in connection with the Concession Premises, including without limitation, any sales, use, income or franchise tax, and shall pay any fees imposed by law for Agreements or permits for any business or activities of Operator upon the Concession Premises of under this Concession Agreement.
c) Operator will be liable for upholding the terms of this Agreement in the event of any planned or unplanned power outages in the area. City will notify Operator of all planned outages immediately upon notification from SDG&E. d) Operator shall clean and maintain the Concession Premises, and shall keep them in clean, orderly, and sanitary condition at all times throughout the Concession Agreement Term. Operator agrees to maintain at all times an "A" rating for cleanliness and sanitary condition, if applicable, and as determined by the appropriate health enforcement authority in San DiegoCounty.

August 20, 2024, Item #6

10. Public
Access.

Operator
understands
that
the
Concession
Premises
are
public
property,
and
as
such,
Operator
may
not
deny
access
to
the
Concession
Premises
to
any
member of
the
public
except
that
Operator
may
deny
access
to
ensure
the
health
and
safety
of
the
Concession
Premises,
such
as
barring
disruptive
individuals,
or
to
ensure
compliance
with
City
policies
or
regulations.

There
shall
be
no
discrimination
against
any
person,
or
groups
of
persons,
on
account
of
gender,
marital
status,
sexual
orientation,
age,
race,
color,
religion,
creed,
national
origin
or
ancestry
in
the
use
of
the
Concession
Premises
or
performance
of
duties
pursuant
to
this
Concession
Agreement
, and
Operator
shall
not
establish
or
permit
any
practice
of
discrimination
in
connection
with
this
Concession
Agreement
or
with
regard
to
the
use
of
the
Concession
Premises.

11. Maintenance
and
Repairs.
8 of21
a)
Operator
shall
maintain
the
facility
and
all
personal
equipment
kept
inside
or
outside
the
building
in
a clean,
safe,
sanitary,
and
attractive
condition,
and
in
good
repair
in
a
manner
deemed
acceptable
by
City.

This
includes,
but
is
not
limited
to,
floors,
walls,
counters,
interior
and
exterior
doors
and
windows,
plumbing
fixtures,
drains,
and
all
interior
building
appliances
and
similar
equipment.

Operator
shall
be
responsible
for
replacing
lighting
fixtures,
bulbs,
and
ballasts,
as
necessary.
b)
If
used,
Operator
shall
maintain
the
grease
trap/interceptor
in
good working
order
for
business
operations.

Grease
traps
should
be
cleaned
in
accordance
with
the
City's
FOG
(Fat,
Oil,
Grease)
Program
requirements
included
as
Exhibit
"B".

Operator
shall
pressure
wash,
adhering
to
the
Best
Management
Practices
contained
in
the
City's
Jurisdictional
Runoff
Management
Plan
(JRMP),
the
patio
area
where
eating
is
permitted
a
minimum
of
once
every
three
months,
or
as
deemed
necessary
by
City
.
c)
Operator
shall
be
responsible
for
ensuring
that
the
interior
of
the
premises
is
kept
free
of
insects
and
rodents
and
shall
keep
outdoor
areas
free
of
equipment
and
supplies
.
d)
City
may,
at
times,
require
the
Operator
to
make
repairs
such
as
interior
painting,
and
other
types
of
repairs
to
the
Concession
premises
during
the
time
of
the
Agreement.

These
repairs
will
be
made
within
thirty
(30)
days
of
any
written
request
for
the
reason
of
aesthetics
or
five
(5)
days
for
health
and
safety
reasons.

If
the
repairs
are
not
made
within
the
stated timeframe,
the
City
may
make
the
repairs
and
charge
the
costs
to
the
Operator.

Operator
shall
comply
with
all
federal,
state,
county,
and
municipal
statutes,
and
ordinances,
and
with
all
regulations,
orders,
and
directives
of
appropriate
governmental
agencies
concerning
the
use,
sanitation,
and
safety
of
the
Concession
Premises.
e)
The
City
shall,
throughout
the
term
of
this
Concession
Agreement,
at
its
own
expense,
be
responsible
for
maintenance
for
the
Concessions
Premises,
including,
but
not
limited
to:
•
Roof
repairs
.
•
Heating
and
air
conditioning
equipment
including
thermostats.

August 20, 2024, Item #6
• Acoustical tiles.
• Major plumbing with the exception of issues caused by concession operations. • Sewer lines.
• Interior and exterior electrical facilities with the exception of interior lighting fixtures, bulbs, and ballasts.
• Exterior walls and wall finishes, including restrooms. • Floors, doors, and windows.
• Patio wood structure.
f) Upon commencement of this Lease, City shall be responsible for ensuring the exterior of the building is free of insects and rodents and City shall be responsible for removing graffiti from exterior of the building.
g) City has the sole discretion to determine when repair and maintenance projects shall be completed based on available funding and resources. City shall not unreasonably delay repair and maintenance projects. If during the term of the Lease, the City has planned capital improvements to the building that will result in the need to close public access to the building for a period of time, the City and Operator shall coordinate closures to minimize business disruptions, except in emergency situations where repairs need to be made immediately. The City shall make every effort to avoid closing public access to the Premises for planned capital improvements.

12.Alterations to Premises.
9 of 21
a) If during the term of this Concession Agreement, any additions, alterations, or improvements in or to the Concession Premises are requested by Operator or are required by governmental laws or regulations that relate to concession operations, they shall be made and paid for by Operator. Operator shall submit a written request describing the proposed alterations, construction dates, and funding source. The concept must be approved by the Director of Community Services or designee. The Operator must adhere to all City requirements for permits and the cost for said permits shall be the sole responsibility of the Operator. b) Operator waives any and all rights provided by law entitling Operator to make repairs at the expense of the City.
c) Operator shall make no installations, additions, or improvements in or to the Concession Premises, or structural alterations or changes either to the interior or exterior of the building located on the Concession Premises, or in the bearing walls, supports, beams, or foundation, without first obtaining the written consent of the City. All applicable City permits and approvals must be obtained prior to the installation of any additions or improvements.
d) Plans and specifications showing such proposed installations, additions, or improvements and alterations and changes, shall be submitted to City for approval upon the application for such written consent.

August 20, 2024, Item #6
e) All installations, additions, or improvements, and alterations and changes made, with the written consent of City, shall be made under the supervision of an architect or engineer satisfactory to City. Work shall be inspected and permitted by the City as required. All architects, engineers and contractors must be approved by the City, and must maintain insurance coverage deemed acceptable by the City. f) Operator shall surrender the Concession Premises upon termination of this Concession Agreement in a condition as good as received, with normal wear and tear excepted. The City may require the Operator to reverse alterations that were made to the Concession Premises at the Operator's request, at Operator's expense.

13. Personal Property.
a) Operator will, at Operator's own cost and expense, equip and maintain at the Concession Premises all furniture, fixtures, equipment, and other personal property required by Operator for the operation of the Concession Premises in accordance with the objectives of this Concession Agreement . b) Operator shall have the right, within thirty (30) days of the termination or expiration of this Concession Agreement, to remove any and all of said furniture, fixtures, equipment, and other personal property of Operator from the Concession Premises. All such property not removed within that time shall become and remain the property of the City. The removal of such property shall be affected solely at the expense of Operator, and in a manner satisfactory to the City, and without injury or damage to the Concession Premises or any of the improvements constructed by City. Operator shall promptly repair any injury or damage caused by the removal of personal property from the Concession Premises.

14. Damage to the Premises.
a) Operator shall, at Operator's own expense, repair any damage to the Concession Premises caused by Operator or Operator's employees and/or vendors and contracted service providers. If the Concession Premises or any part thereof, or any appurtenance thereto is so damaged that the same cannot be used for Operator's purposes, and the damage has been cause by Operator or Operator's employees and/or vendors and contracted service providers, Operator shall provide written notice to the City within ten (10) calendar days following the occurrence of the damage. Operator shall provide a proposal to the City for repair of the damage within thirty (30) calendar days of the occurrence of the damage and shall commence the repairs within ninety (90) calendar days of receiving written approval of the repair plan from the City. In the event of minor damage to any part of the Concession Premises, and if such damage does not render the Concession Premises unusable for Operator's purposes, Operator shall promptly repair such damage at Operator's sole cost and expense. Should Operator or City repairs to the Concession Premises result in closure, City shall, when practical, provide space to Operator to continue in the performance of services described herein at a level deemed appropriate by City.
b) If the Concession Premises, or any area of the Lake Poway Recreation Area, is so 10 of 21
August 20, 2024, Item #6
damaged that the same cannot be used for Operator's purposes or results in closure to the public, and the damage has not been caused by Operator or Operator's employees and/or vendors and contracted service providers, then Operator shall have the right to terminate this Concession Agreement within ninety (90) calendar days following such damage while repairs are being made at City's sole cost and expense. If Operator elects not to terminate this Concession Agreement while the City is repairing the Premises, Operator agrees that Operator shall not be entitled to compensation for any time periods when the concession business is closed pending repairs.

15. Sign. Operator agrees that the content, style, appearance, and location of all signs, placards, and advertising in or about the Concession Premises, including window advertising, are subject to City's prior written approval. All signs must comply with the City's Municipal Code, Chapter 17.40 Comprehensive Sign Regulations.

If Operator wishes to change the business name from Lake Poway Concession, Operator shall submit a written request to the Director of Community Services for approval.

16. Direction of Communication. Neither Operator nor any employee shall engage in any verbal or written criticism of the City's staff, park management, business decisions, etc., to any third party. Operator agrees to direct all concerns or complaints directly to the Recreation Area Manager, and if no response, to the Community Services Director, and to encourage Operator's patrons, friends, and guests to do the same.

17. Termination and Revocation of Concession Agreement. 11 of 21
a) This Concession Agreement may be terminated by either party by providing written notice to the other party at least ninety (90) calendar days in advance of the desired termination date. Notwithstanding the foregoing, this Concession Agreement may be terminated by City prior to the expiration of the Concession Agreement Term pursuant to the paragraph below.
b) This Concession Agreement may be revoked by the City twenty (20) calendar days after a written notice to Operator that City has determined that Operator has done any of the following, and if Operator has not cured the noticed breach within ten (10) business days after the notice, provided that if the nature of a non-monetary default is such that it cannot be fully cured within said five (5) day period, Operator shall have such additional time as may be reasonably necessary to cure such default so long as Operator proceeds promptly after service of City's notice and proceeds diligently at all times to complete said cure:
1) Failed to confine use of the Concession Premises to concession sales, pursuant to the terms of Article I, Section 2 of this Concession Agreement; 2) Failed to maintain the required operating hours, pursuant to Article I, Section 4 of this Concession Agreement on four (4) or more occasions during any twelve month period;
3) Failed to remit payment, pursuant to Article I, Section 6 of this Agreement; August 20, 2024, Item #6
12 of 21
4) Failed to adequately clean and maintain the Concession Premises or failed to comply with all County Health Department "A-rated" health requirements pursuant to Article I, Section 9 of this Agreement;
5) Failed to maintain adequate insurance, pursuant to Article II, Section 1 of this Concession Agreement;
6) Failed to abide by employment-related laws, pursuant to Article II, Section 3 of thisAgreement;
7) Failed to work cooperatively with City staff;
8) Taking actions to the detriment of the Operator or the City. 9) Failed to maintain all permits required, including but not limited to: City of Poway Business Certificate, ABC Agreement, and County Health Department Permit.
10) Failed to present any written or verbal criticism of the City's staff, park management, business decisions, etc., directly to the Recreation Area Manager or the Community Services Director, as required in Article I, Section 17 of this Concession Agreement.
11) Operator becoming insolvent, making an assignment for the benefit of creditors, becoming the subject of a bankruptcy proceeding, reorganization, receivership, liquidation or dissolution proceeding, or any judicial sale of Operator's interest under this Concession Agreement. Should Operator form a corporation for the purpose of conducting business, Operator must notify City in writing within thirty (30) days of filing an application for incorporation, and shall not permit transfer of the Lease or possession of the Premises by merger, consolidation or dissolution, nor permit sale of a controlling interest in the voting stock in said corporation, without the written consent of the City; or 12) Failed to perform any other provision of this Concession Agreement. Except for default arising from Operator's failure to maintain the required hours of operation, as described in subparagraph (2), above, which default shall be deemed material and will not be allowed to be cured, if the default cannot be cured within five (5) business days, the Operator shall not be in default of this Concession Agreement if Operator commences to cure the default within the five-day period, and diligently and in good faith continues to cure the default.

Notice of any default given to Operator pursuant to this Section shall specify the nature of the alleged default and the applicable Concession Agreement provisions and shall demand that Operator perform the provisions of this Concession Agreement within the applicable time period or quit the Concession Premises. No such notice of default shall be deemed a termination of this Concession Agreement unless City elects to provide Operator with a notice of termination as set forth in Section 17.

August 20, 2024, Item #6
c.)
Upon
termination
or
revocation
of
this
Agreement,
Operator
agrees
to
vacate
the
Concession
Premises
within
five
(5)
working
days,
and
to
surrender
this
Agreement.

18. City's
Remedies
for
Default.

City
shall
have
the
remedies
set
forth
in
this
Section
in
the
event
of
Operator's
default.

These
remedies
are
not
exclusive,
and
do
not
preclude
City
from
pursuing
any
other
remedies
allowed
by
law.
a)
Operator's
Right
to
Possession
not
Terminated.

During
the
period
that
Operator
is
in
default,
City
shall
have
the
right
to
terminate
the
Concession
Agreement,
enter
the
Premises
to
operate
the
concession,
and/or
to
grant
a
new
Agreement
to
a
third
party
("re-Agreement
").

Operator
shall
be
liable
to
City
for
all
costs
incurred
in
re-licensing
the
Concession
Premises,
including
reasonable
amounts
to
repair
the
Concession
Premises,
if necessary,
to
make
the
Concession
Premises
suitable
to
be
re-Agreement
d.

No
act
by
City
pursuant
to
this
paragraph
shall
terminate
this
Concession
Agreement
unless
City
notifies
Operator
in
writing
that
the
City
is
electing
to
terminate
the
Concession
Agreement.
b)
Termination
of
Operator's
Right
of
Possession.

City
has
the
right
to
terminate
Operator's
possession
of
the
Premises
at
any
time
upon
Operator's
default,
if such
default
constitutes
a
material
breach
of
this
Concession
Agreement,
as
set
forth
in
Article
I,
Section
17 . No
act
by
City,
other
than
giving
written
notice
of
termination
to
Operator,
shall
terminate
this
Concession
Agreement.

City
has
the
right
to
recover
from
Operator
such
amounts
and
costs
necessary
to
compensate
City
for
all
detriment
proximately
caused
by
Operator's
default.
c)
City's
Right
to
Cure
Operator's
Default.

City,
at
any
time
after
Operator
commits
a
default,
can
cure
the
default
at
Operator's
cost
if Operator
does
not
cure
pursuant
to
Paragraph
17(b)
. If
City,
at
any
time,
by
reason
of
Operator's
default,
pays
any
sum
or
does
any
act
that
requires
the
payment
of
any
sum,
the
amount
paid
by
the
City
shall
be
due
immediately
from
Operator,
and
if
paid
at
a
later
date
shall
bear
interest
at
the
rate
of
eighteen
percent
(18%)
per
annum,
or
if
the
highest
lawful
rate
is
less
than
eighteen
percent
(18%)
per
annum,
at
that
rate
from
the
date
the
sum
is
due
until
City
is
reimbursed
by
Operator.
d)
Failure
to
Enforce:

Failure
by
the
City
of
Poway
at
any
time
to
enforce
the
provisions
of
the
contract
shall
not
be
construed
as
a waiver
of
any
such
provision
.

Such
failure
to
enforce
shall
not
affect
the
validity
of
the
contract
or
any
part
thereof
or
the
right
of
the
City
of
Poway
to
enforce
any
provision
at
any
time
in
accordance
with
its
terms.
e)
Force
Majeure
Clause:

The
parties
to
the
contract
shall
be
excused
from
performance
during
the
time
and
to
the
extent
that
they
are
prevented
from
obtaining,
delivering
or
performing
by
act
of
God,
fire,
strike,
loss,
shortage
of
public
transportation
facilities,
walkout
or
commandeering
of
materials,
products,
or
facilities
by
the
government
provided
that
the
nonperformance
is
not
due
to
the
fault
of
neglect
of
the
contractor/supplier.

In
such
cases,
however,
satisfactory
evidence
thereof
must
be
presented
.
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21 August 20, 2024, Item #6

19. As-ls Condition of Property. Operator acknowledges that Operator is fully knowledgeable of the condition of the Concession Premises. City makes no representations whatsoever to Operator concerning the condition of the Concession Premises, and specifically does not represent to Operator that the Concession Premises is fit for the use that Operator intends. Operator has inspected the Concession Premises and accepts the Concession Premises in AS-IS condition.

Operator shall not allow contamination, shall not commit waste, and, subject to Operator's right to remove personal improvements and fixtures, shall not do anything on the Concession Premises that will cause damage to the Concession Premises.

20. Entry by City. City may, at any time, in response to emergency, and in all other cases upon 72 hours prior written notice to Operator, and at times deemed reasonable by Operator, enter the Concession Premises for the purpose of inspecting the property, making such repairs as the City may deem necessary, preparing for City's future use of the Concession Premises, constructing public improvements on the property, and other public utilities and improvements, or for such other purposes or at such times as may be deemed necessary by City. City shall make verbal notification to Operator prior to such entry when possible. To the extent that City does construct public improvements on the Concession Premises, Operator shall relinquish all rights and interest therein and all tenancy to that portion of the property affected without additional compensation.

21. Liens. Operator shall keep the Concession Premises, including all buildings and improvements now or hereafter located on the property, free and clear of all liens and claims of liens for labor, services, materials, supplies, or equipment performed on or furnished to the Concession Premises. If a lien or other encumbrance attaches to the Concession Premises and/or improvements on the property, Operator shall promptly pay and discharge, or cause the property to be released from, or cause to be insured or bonded over any such lien or claim of lien.

ARTICLE II. GENERAL CONCESSION AGREEMENT TERMS

1. Insurance Requirements. Operator shall obtain and maintain during the life of this Concession Agreement all of the following insurance coverages:
a) Comprehensive General Liability, including premises-operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages:

General Liability:
$1,000,000 per occurrence
$2,000,000 aggregate per occurrence
$1,000,000 property damage per occurrence Liquor Liability Insurance Rider b) Property Insurance Coverage. Operator shall, at its own cost and expense, maintain in full force and effect property insurance, including fire and extended coverage insurance, covering Operator's personal property, including removable trade fixtures, located in the Concession Premises, in an amount of at least one 14 of 21
August 20, 2024, Item #6
hundred percent (100%) of their cash value.
c) Workers' Compensation insurance in statutory amount. All of the endorsements, which are required above, shall be obtained for the policy of Workers' Compensation insurance.
d) Endorsements shall be obtained so that each policy contains the following three provisions:
1) Additional Insured Status (Not required for Workers' Compensation): "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insured with respect to this subject property and Agreement with City."
2) Notice: "Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
3) 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."
e) Operator shall provide City certificates of insurance with proper endorsements showing the insurance coverage described in the paragraphs above, in a form and content approved by City.
f) In the event that Operator fails to procure the required insurance policies described above, the City is authorized by this Agreement to purchase the insurance and to deduct 100% of the cost of the premiums from the Operator's monthly compensation as provided in Article I, Section 6. g) Failure to comply with insurance requirements under this Agreement shall be a material breach of this Agreement.

2. Indemnification. Except to the extent of the active negligence or willful misconduct of City or City's representatives, agents, employees, or officers. Operator shall hold harmless, defend, and indemnify the City, and its elected and appointed officers, officials, employees, agents, volunteers, guests, invitees and Operators (other than Operator) (the "City lndemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or in equity, to property or persons, including wrongful death, to the extent arising out of or incident to any acts, omissions, or misconduct of the Operator or its officers, employees, agents, volunteers, guests, invitees and Operators in connection with the performance of this Agreement, including without limitation, the payment of attorneys' fees and other related costs and expenses.

Operator's responsibility to hold harmless, defend and indemnify the City lndemnitees does not include claims, demands, causes of action, costs, expenses, liability, loss, damage or injury to the extent arising out of the negligence or willful misconduct of any of the City lndemnitees. This Section shall apply to all liability regardless of whether any insurance policies are applicable. 15 of 21
August 20, 2024, Item #6
Any insurance policy limits do not act as a limitation upon the amount of indemnification to be provided to the City lndemnitees.

Operator shall act as an independent contractor and will not be an agent or employee of the City. Operator shall not represent or otherwise hold out itself or any of its subcontractors, sub-subcontractors, directors, officers, partners, employees, or agents to be an agent or employee of the City.

City and its elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Operator or any other person for, and Operator shall indemnify, defend, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of or allegedly caused by Operator's use of the City's property or Operator's performance under this Contract.

If any action or proceeding is brought against lndemnitees by reason of any of the matters against which Operator has agreed to indemnify lndemnitees as provided above, Operator, upon notice from City, shall defend lndemnitees at Operator's expense by counsel acceptable to City, such acceptance not to be unreasonably withheld. lndemnitees need not have first paid for any of the matters to which lndemnitees are entitled to indemnification in order to be so indemnified. The insurance required to be maintained by Operator under Article II, section 1, shall ensure Operator's obligations under this section, but the limits of such insurance shall not limit the liability of Operator hereunder. Operator shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Operator is carrying and maintaining; however, if Operator fails to take such action as is necessary to make a claim under any such insurance policy, Operator shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Operator under any insurance policy or policies required under Article II, section 1.

The provisions of this section shall survive the expiration or earlier termination of this Agreement.

The provisions of this section do not apply to Claims occurring as a result of this City's sole negligence or willful acts or omissions.

The parties agree to cooperate fully in the resolution of any claims for such liability, loss or damage.

3. Employment Laws. Operator agrees to comply with all local, state, and federal laws affecting the employment of personnel, the payment of wages, and the payment of taxes in operating the businesses of the Concession Premises.

4. Anti-Assignment Clause. As the City has relied on the particular proposal of 16 of 21
August 20, 2024, Item #6
Operator in entering into this Agreement, Operator shall not assign, delegate, transfer, or sub-Agreement any duty or right under this Agreement, or any portion of the Operator's use of the Concession Premises. Any such purported assignment, delegation, transfer, or sub-Agreement shall be void, unless the City has previously approved such action in writing.

5. Operator not a Lessee. Not legal title or leasehold interest in the Concession Premises or appurtenances thereto shall be deemed or construed to have been created or vested in the Operator by anything contained in this Agreement.

6. Compliance with Laws. Operator shall comply with all federal, state, and local laws applicable to the Concession Premises and its use.

7. Provisions Cumulative. The foregoing provisions are cumulative and in addition to and not in limitation of any rights or remedies available to the City.

8. Merger Clause. This Agreement and its attachments, whether physically attached to the Agreement or merely referenced in this section (the "Incorporated Documents") are the entire understanding of the parties, and there are no other terms or conditions, written or oral, controlling this matter. In the event of any conflict between the provisions of this Agreement and the Incorporated Documents, the provisions of this Agreement shall prevail.

9. Anti-Waiver Clause. None of the provisions contained herein shall be waived because of previous failure to insist upon strict performance, nor shall any provision be waived because any other, Provision has been waived, in whole or in part.

10. Severability. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provisions of this Agreement.

11. Notices to Parties. Any statements, communications, or notices to be provided pursuant to this Agreement shall be sent to the attention of the persons indicated below, until such time as notice of any changes of person to be notified or change of address if forwarded to all parties:

City:

City of Poway
P.O. Box 789
Poway, CA 92074
Attn: Director of Community Services
Operator:

Cheeseburgers in Poway, LLC
1539 Molly Circle
Oceanside, CA 92054
Attn: Josh Arbenz

12. Choice of Law. This Agreement shall be governed by the laws of the State of California. Venue for any action arising from this Agreement, including but not limited to matters concerning validity, construction, performance or enforcement shall be exclusively in the state or federal courts located in San Diego County, California.

Operator hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394.
17 of 21
August 20, 2024, Item #6

13. Business Certificate. The Operator shall be required to obtain a City of Poway Business Certificate prior to execution of this Agreement.

14. Amendment. The provisions of this Agreement may be amended or modified only by mutual consent and written agreement of the Parties.

IN WITNESS WHEREOF, this Agreement has been executed on behalf of the City by its Officer thereunto authorized and by Operator, the date and year first above written.

CITY OF POWAY, A Municipal Corporation: Cheeseburgers in Poway, an LLC:

Chris Hazeltine, City Manager Josh Arbenz, Managing Member Date: Date:

ATTEST:

Carrie Gallagher, City Clerk
Date:

APPROVED AS TO FORM:

Alan Fenstermacher, City Attorney
18 of 21
August 20, 2024, Item #6

EXHIBIT A
19 of 21
August 20, 2024, Item #6

EXHIBIT B
City of Poway
Public Works, Wastewater Division
FOG Program for Food Establishment Wastewater Discharge Maintenance of Grease Removal Equipment (GRE)
The City of Poway's Industrial Wastewater Pretreatment Program (Chapter 13.05 of the Poway Municipal Code) requires that GRE (Grease Removal Equipment: grease traps and interceptors) be maintained in efficient operating condition by periodic removal of the accumulated grease and solid food waste. The cleaning interval varies with the amount of food preparation/clean-up activities and with the facility's housekeeping procedures. This interval must be determined by each facility, but will be mandated by the City when maintenance is found to be unsatisfactory. On the back of this page are acceptable grease and oil levels for different size grease traps and interceptors.

Methods
Two maintenance methods are approved by the City of Poway:

1. Manual Removal of Grease. This consists of skimming out accumulated grease and oil and removing solids that have settled at the bottom. None of the removed material can be disposed of in the sewer or storm drain system.

Collected material can be put in a grease-recycling barrel if the barrel is specifically designated to hold grease trap waste. If applicable, you must ensure that your grease recycler or waste hauler accepts grease trap waste. Any of the material that is disposed of in the trash must be in a container and may not be over 50% liquid.

2. Pumping. You may hire a pumping service to empty your GRE. If you have a grease interceptor, pump all grease, oil, and food matter from each chamber and sample box including solids or sludge at the bottom of each chamber, specifically at the bottom of all standpipes. The City requires a complete pump out at each cleaning.

Additional Information
Bacterial products may help to reduce cleaning frequency. However, high temperature, high or low pH level, sanitizers and other cleaning products render them ineffective. Bacterial products may also cause the accumulated grease to "fluff-up" or take more space in your GRE than if left alone. These products are not to be substituted instead of Methods 1 or 2.
20 of 21
August 20, 2024, Item #6
Maintenance of GRE

Page 2 ends

Enzyme products are never allowed because they keep grease and oil suspended in the water, which causes them to pass through your grease trap or interceptor. They may also contribute to the corrosion of your GRE.

IN ALL CASES, FACILITY OPERATORS ARE SOLELY RESPONSIBLE FOR PROPER GRE MAINTENANCE.

Summary
GRE collects grease that would otherwise enter the sewer lines and cause blockages and overflows. Methods 1 and 2 are the best ways of disposing grease. Bacteria may reduce the frequency of manual cleaning or pumping, but it does not eliminate the need for manual cleaning or pumping.

A record of the dates, methods and identity of the people/company cleaning GRE must be kept at the facility and be available for review at any time. During facility inspections, all GRE will be required to be opened and will be examined for proper maintenance.

The maximum grease and/or oil levels, including any solids or sludge that has accumulated on the bottom of your grease trap or grease interceptor, are as follows:

Grease Trap/Grease Interceptor 25% Capacity Standard
The 25% rule is used to determine when a grease trap/grease interceptor (or oil separator) is full.
"The total depth of the floating grease layer plus the settle-able solids layer cannot exceed 25% of the total liquid depth of the interceptor." Determination is made by taking a core sample with a Sludge Judge or Dipstick Pro.

The device is lowered slowly through the fats, oils, and grease layer all the way to the bottom through the solids layer of the trap/interceptor and then capped or plugged and slowly removed and set aside to rest. This allows the captured FOG to collect at the top of the device while the solids settle at the bottom.

A measurement is taken, typically in inches, from the top of the FOG layer to the bottom of the device, which represents the tanks total water column. Then the FOG and solids layers are each measured, also typically in inches, and added together. If the combined FOG and solids layers are equal to or greater than 25% of the total water column, then the interceptor is considered full. At no time should there be visible grease or oil in the sample box.
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Poway City CouncilAugust 20, 2024

Poway City Council
August 20, 2024