Item 7 - Temp Lease of City-owned Properties; 14322 Pomerado Rd and 11907 Old Pomerado Rd to SDG&E for stagingNovember 2, 2021, Item #7DATE: TO: FROM: CONTACT: SUBJECT: Summary: AG EN DA REPORT City of Poway November 2, 2021 Honorable Mayor and Members of the City Council Wendy Kaserman, Assistant City Manager Craig Ruiz, Economic Development Administrato~ 858-668-4509, cruiz@poway.org CITY COUNCIL Temporary Lease of City-owned Properties Located at 14322 Pomerado Road and 11907 Old Pomerado Road to San Diego Gas & Electric Company for Use as Construction Staging Areas. San Diego Gas & Electric Company (SDG&E) is constructing the Line 1600 Project which will install a 16-inch natural gas transmission line (Project) within San Diego County. A portion of the overall Project will be within the public right-of-way of Pomerado Road within the City of Poway (City). The proposed Lease Agreement will allow SDG&E to lease two City-owned properties to stage construction equipment and store materials during the construction of the transmission line within the City. Recommended Action: It is recommended that the City Council approve the Lease Agreement. Discussion: SDG&E originally constructed Line 1600, a 16-inch natural gas transmission line, in 1949. The proposal to replace the line was formally opposed by the City Council in 2017 and 2018 due to safety concerns: In January 2019, the California Public Utility Commission's Safety Enforcement Division approved SDG&E's plan to replace Line 1600. This Project is taking place in the cities of San Diego, Escondido, and Poway, and will include the replacement of 37 miles of existing pipe. SDG&E is currently constructing the Pomerado North phase of the Project. This phase runs in the right-of-way along Pomerado Road from Highland Valley Parkway in the City of San Diego to the intersection of Ted Williams Parkway and Pomerado Road in Poway. The next segment of the Project is Pomerado South, which continues construction south along Pomerado Road from Ted Williams Parkway to Scripps Poway Parkway (see Exhibit B -Vicinity Map). The Pomerado South segment will necessitate the need for two construction staging areas within Poway. 1 of 24
Staging Area No. 1 is an approximately .65-acre area on the west side of Pomerado Road, and
approximately 275 feet north of Fire Station 3 (see Exhibit C -Staging Area No. 1 ). The area to be used
for staging equipment has been previously used for similar activity. Staging Area No. 2 is an
approximately .89-acre parcel located at 11907 Old Pomerado Road (see Exhibit D -Staging Area No.
2). This site is vacant and has been previously disturbed. Prior to occupying the sites, SDG&E must
first receive approval of a Temporary Use Permit (TUP). The TUP will, among other items, address the
need for any traffic control plans for the two staging areas and any required notification to adjacent
property owners.
The entire Lease Agreement will run from December 1, 2021 through July 31, 2022. The Lease
Agreement anticipates that Staging Area No. 1 will be occupied from December 1, 2021 through May
31, 2022. Staging Area No. 2 will be occupied from March 1, 2022 through July 31, 2022. SDG&E may
request in writing to the City Manager to extend the term of the lease. However, in no case shall the
lease be extended beyond November 30, 2022 without further City Council approval.
Environmental Review:
The lease agreement is Categorically Exempt from the California Environmental Quality Act (CEQA) as
a Class 4(e) Categorical Exemption, pursuant to Section 15304 of the CEQA Guidelines, in that the
project involves the minor temporary use of land having negligible or no permanent effects on the
environment
Fiscal Impact:
In lieu of rental payments for the two City owned properties, SDG&E will slurry seal the pavement in
the area of the trenching on Pomerado Road (see Exhibit E -Slurry Seal Location) at an estimated cost
of $275,000. The slurry seal will help extend the life of the pavement which can be shortened by
trenching activities and saves the City the cost of doing this work as part of the annual pavement
maintenance program. It will also have the added non-financial benefit of a more aesthetically
pleasing final appearance to the roadway at the completion of the Project. The cost of the slurry seal
improvements significantly exceeds the amount of rent the City would have received.
Public Notification:
None
Attachments:
A.Lease Agreement
B.Vicinity Map
C.Staging Area No. 1
D.Staging Area No. 2
E.Slurry Seal Location
2 of 24 November 2, 2021, Item #7
November 2, 2021, Item #7Reviewed/ Approved By: Wendy Kaserman Assistant City Manager 3 of24 Reviewed By: Alan Fenstermacher City Attorney Approved By: c~ City Manager
November 2, 2021, Item #7LEASE AGREEMENT This LEASE AGREEMENT ("Lease") is entered into as of -------~2021 (the "Effective Date"), by and between the City of Poway, a Municipal Corporation (the "Landlord"), and San Diego Gas & Electric Company, a California corporation ('Tenant"). The Landlord and the Tenant are at times referred to herein as the "Parties". RECITALS WHEREAS, the Tenant is constructing the San Diego Gas and Electric Company Line 1600 Project, which will install a 16-inch natural gas transmission line (the "Project") within San Diego County. A portion of the overall Project will be within the Right-of-Way of Pomerado Road within the City of Poway. WHEREAS, as part of the Project, Tenant will need fixed locations near the Project to store construction equipment and materials necessary to complete the project. WHEREAS, Landlord owns real property located at 14322 Pomerado Rd, Poway, California 92064, consisting of Assessor Parcel 314-040-25 which is partially improved with Poway Fire Station 3, an unimproved dirt parking area and open space. WHEREAS, Landlord owns unimproved real property immediately north of 14322 Pomerado Road, consisting of Assessor Parcel 314-040-17 which is unimproved and contains an unimproved dirt parking area and open space. The legal description Assessor Parcels 314-040-17 and 314-040-25 is attached hereto as Exhibit A. WHEREAS, there is unimproved dirt parking areas on a portion of each parcel which the Tenant seeks to lease from the Landlord for its use in constructing the Project, including but not limited to staging and storing construction equipment, supplies and materials (the "Staging Area No. 1 "). Such construction equipment, supplies and materials may include, without limitation, generators, water tanks and associated tanks, water lines, gas powered water pumps and vehicles. A Vicinity Map depicting Staging Area 1 is attached hereto as Exhibit B. WHEREAS, Landlord owns unimproved real property located at 11907 Old Pomerado Road, Poway, CA 92064, consisting of Assessor Parcel 317-251-31. The legal description is attached hereto as Exhibit C. WHEREAS, the Tenant seeks to lease from the Landlord the property at 11907 Old Pomerado Road for its use in constructing the Project, including but not limited to staging and storing construction equipment, supplies and materials (the "Staging Area No. 2" and together with Staging Area No. 1, the "Property"). Such construction equipment, supplies and materials may include, without limitation, generators, water tanks and associated tanks, water lines, gas powered water pumps and vehicles. A Vicinity Map depicting Staging Area 2 is attached hereto as Exhibit D. WHEREAS, the Tenant has or will obtain any and all necessary permits and approvals from the City of Poway before locating any equipment on Staging Areas No. 1 and No. 2. 4of24 ATTACHMENT A
November 2, 2021, Item #7WHEREAS, in accordance with the above, by this Lease, the Landlord desires to lease to the Tenant, and the Tenant desires to lease from the Landlord the Property, upon the terms and conditions set forth herein. WHEREAS, the parties understand and agree that this Lease is what is commonly known as a "triple net" or "net-net-net" lease, except as otherwise provided herein, and the parties understand and agree that this Lease is what is commonly known as a "triple net" or "net-net-net" lease, except as otherwise provided herein, and Tenant acknowledges and agrees that the Landlord shall not be obligated by the terms of this Lease or otherwise to perform any maintenance or construct or repair any improvements at the Property. Additionally, Tenant acknowledges and agrees that (i) the Landlord has made no representation or warranty regarding the fitness of the Property for Tenant's intended use thereof, and (ii) Tenant is familiar with the condition of the Property and the appropriateness of the Property for Tenant's operation of the Business thereon. NOW, THEREFORE, the Landlord and Tenant hereby agree as follows: 1. Lease Term. The Landlord hereby leases to Tenant the Property, and Tenant hereby leases the same from the Landlord, for a term commencing on December 1, 2021 ("Commencement Date") and ending on July 31, 2022 (the "Lease Term"). The Tenant will occupy Staging Area No. 1 from December 1, 2021 through May 31, 2022 and Staging Area No. 2 from March 1, 2022 through July 31, 2022. The Tenant may submit a written request to extend the Lease on a month-to-month basis upon written agreement of both Parties. In no case will the lease extend beyond November 30, 2022. In addition, this Lease can be terminated by either party with 60-days' prior written notice. 2. Relocation Assistance. Tenant hereby acknowledges and agrees that Tenant shall not incur any right, interest, or claim in or to any benefits or assistance arising under Government Code Section 7260, et seq. or any other federal, state or local law, rule, or regulation relating to or arising from Tenant's relocation from the Property or the termination of this Lease. To the extent Tenant is eligible for such benefits Tenant hereby voluntarily and expressly waives each and every right, title or interest in and to such benefits. 3. Net Lease. It is the intent of the parties that the rent provided herein shall be absolutely net to the Landlord and that Tenant shall pay all costs, taxes, assessments, charges, and expenses of every kind and nature imposed on or against the Property which may arise or become due during the Lease Term, and which, except for execution hereof, would or could have been payable by the Landlord. (a) Tenant recognizes and acknowledges that this Lease may create a "possessory interest" in the Property as defined in California Revenue and Taxation Code section 107, and that Tenant's property interest may be subject to property taxation levied on the Tenant's property interest. Tenant further acknowledges, and agrees, that this subdivision (a) meets the requirements set forth in Revenue and Taxation Code section 107.6(a). (b) Rent and Deposit. Parties agree that in-lieu of monthly rental payments, the Tenant shall slurry seal Pomerado Road as indicated in Exhibit E (the "Slurry Seal Project") attached hereto and any property damaged by the Tenant during the course of the Project. Further, no cash deposit shall be required to be paid by the Tenant to the Landlord. Parties agree that the value of the 5 of24
November 2, 2021, Item #7Slurry Seal Project is approximately $275,000. Parties further acknowledge and agree that the Tenant's obligation to undertake the Slurry Seal Project constitutes sufficient consideration for the mutual covenants contained herein. (c) Failure to Make Reguired Improvements. If Tenant fails to complete the Slurry Seal Project as indicated in Exhibit E, the Tenant shall pay Landlord's costs, in aggregate amount, together with costs incurred by tenant to complete the Slurry Seal Project and any repairs related thereto, not to exceed $275,000, for the Slurry Seal Project and any repairs related thereto in the areas indicated in Exhibit E. Should Tenant fail to complete the Slurry Seal Project within (30) days after the completion of the Project as defined herein, the Landlord may deliver notice to the Tenant that the Slurry Seal Project has not been completed in conformance with the Standard Specifications for Public Works Construction and that required slurry repairs need to be completed in accordance with the terms of the Lease. Tenant shall have thirty (30) days from receipt of written notice from Landlord to cure any material deficiencies with the Slurry Seal Project and/or make any such repairs. If Tenant has not substantially completed the required slurry seal repairs, or diligently begun work on completing the required slurry seal repairs, within such thirty (30) day period, Landlord may undertake such repairs at Tenant's cost, subject to the limitation on cost reimbursement above. If Landlord completes such repairs and provides notice to Tenant of the amount of required reimbursement for such costs, Tenant shall pay Landlord, within sixty (60) days of such notice, such amounts, subject to the limitations on cost reimbursement above. If Tenant does not pay Landlord such amounts within such sixty (60) day period, Landlord may terminate this Lease upon written notice to Tenant. ( e) Hazardous Materials. Except as is necessary to fuel and maintain construction equipment and vehicles, Tenant shall not, without Landlord's prior consent, use, handle, store, or dispose of any hazardous, toxic, or radioactive matter including, without limitation, those materials identified in Chapter 11, Division 4.5 ofTitle 22 of the California Code of Regulations ("Title 22"), as amended from time to time ( collectively, "Hazardous Materials"). Tenant shall be solely responsible for, shall pay for, defend (with an attorney approved by the Landlord, such approval not to be unreasonably withheld, conditioned or delayed), indemnify and hold the Landlord, its officials, officers, employees and agents, harmless against and from all claims, judgments, liabilities, losses, liens, costs and expenses, arising out of or involving any Hazardous Materials brought onto the Property by or for Tenant or by any of Tenant's employees, agents, contractors, visitors or invitees during the term of this Lease. Tenant's obligations hereunder shall exclude anypre-existing conditions, and any condition arising on the property from Hazardous Materials that is caused by a third party's use of the property, even if such Hazardous Materials are discovered by Tenant. Tenant's obligations shall include the investigation,removal, clean-up and/or restoration work as required by applicable law or ordered by any regulatory agency, including but not limited to the San Diego Regional Water Quality Control Board, the California Department of Toxic Substances Control, or the United States Environmental Protection Agency. 6 of24
November 2, 2021, Item #75. Sublease and Assignment. Tenant shall not sublease all or any part of the Property, or assign this Lease in whole or in part without the Landlord's consent. 6. Access Rights to Third Party Property. (a) Landlord will provide Tenant and its employees, agents or contractors with full access to the property consisting of Assessor Parcel 317-251-31 and 320-011-09, on a 24/7 basis, for the purpose of installing, operating, maintaining, repairing, upgrading and/or replacing a water line that connects to the Scripps Poway Parkway. (b) Tenant is responsible at its sole expense for securing all other necessary access rights from any and all third parties owning property adjacent to the leased premises. Tenant shall defend, indemnify and hold the Landlord, its elected and appointed officers, employees and agents, harmless from all liability whatsoever on account of any damage, injury or liability of any kind arising from Tenant's failure to secure such access rights from third party property owners. 7. Alterations and Improvements. (a) Maintenance and Repairs. During and upon termination of the Lease Term, Tenant shall make all necessary repairs and maintenance to the Property, so that the Property is returned to the Landlord upon termination of the Lease Term in the manner of which it was leased, at Tenant's own expense. Tenant shall also make any and all repairs relating to the Tenant's specific use of the Property at Tenant's expense. Tenant shall maintain all portions of the Property that are visible to the public in good condition, including the fencing, ground maintenance, and landscaping. Tenant shall exercise due diligence to ensure any airborne dirt/gravel/dust is mitigated for surrounding private properties. Graffiti on equipment and material, including fencing, placed on the property by Tennant or by any of Tenant's employees, agents, contractors, visitors or invitees shall be removed by Tennant within seventy-two (72) hours. In no event shall this Lease be interpreted to require the Landlord to expend funds for the purpose of conducting repairs or maintenance of the Property. Tenant acknowledges and agrees that Tenant is familiar with the condition of the Property and is aware of the adequacy and fitness of the Property for Tenant's intended use thereof for the operation of the Business. THE LANDLORD EXPRESSLY DISCLAIMS ANY WARRANTY OF HABIT ABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY COVENANT OF QUIET ENJOYMENT WITH RESPECT TO THE PROPERTY AND/OR TENANT'S USE THEREOF PURSUANT TO THIS LEASE. In the event of a force majeure causing significant damage to the Property, Tenant may elect to make all necessary repairs and continue occupying the Property, or shall be entitled to terminate this Lease. (b) Alterations and Improvements. Tenant, at Tenant's expense, shall have the right, following the City's reasonable consent, to make improvements to all or any part of the Property from time to time as Tenant may deem desirable, provided the same are made in a workmanlike manner, utilizing good quality materials, and in compliance with all applicable federal, state, and local statutes, rules, and regulations. Tenant shall have the right to place and install personal property, trade fixtures, equipment and other temporary installations in and upon the Property, and fasten the same to the Property. All personal property, equipment, machinery, trade fixtures and temporary installations, whether acquired by Tenant at the commencement of the Lease term or placed or installed on the Property by Tenant thereafter, shall remain Tenant's 7of24
November 2, 2021, Item #7property free and clear of any claim by the Landlord. Tenant shall have the right to remove the same at any time during the term of this Lease; provided that Tenant shall be responsible for the repair of any damage caused by such removal. 8. Liens. Tenant agrees that it will pay or cause to be paid all costs for work done by it or caused to be done by it on the Property of a character which will or may result in liens on the Landlord's reversionary estate therein, and Tenant shall keep the Property free and clear of all mechanics' liens and other liens on account of work done for Tenant or persons claiming under it. If any such lien shall at any time be filed against the Property, Tenant shall either cause the same to be discharged within sixty (60) days after the recording thereof, or if Tenant, in Tenant's discretion and in good faith, determines that such lien should be contested, shall furnish such security as may be reasonably required by the Landlord. If Tenant shall fail to furnish such security, then, in addition to any other right or remedy of the Landlord resulting from Tenant's said default, the Landlord may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by giving security or in such other manner as is, or may be, prescribed by law. Tenant shall repay to the Landlord, as "Additional Rent," on demand, all sums disbursed or deposited by the Landlord pursuant to the provisions of this Paragraph 7, including all costs, expenses and attorneys' fees incurred by the Landlord in connection therewith. Nothing contained herein shall imply any consent or agreement on the part of the Landlord to assume any liability under any mechanics' lien or other lien law. Should any claims of lien be filed against the Property or any action affecting the title to the Property be commenced, the party receiving notice of such lien or action shall forthwith use its commercially reasonable efforts to give the other party written notice thereof within five ( 5) days after receipt. The Landlord or its representative(s) shall have the right to post and keep posted upon the Property notices of non-responsibility or such other notices that the Landlord may deem to be proper for the protection of the Landlord's interest in the Property. Tenant shall, before the commencement of any work that might result in any such lien, give to the Landlord written notice of its intention to do so in sufficient time to enable the posting of such notices 9. Insurance. (a) Intentionally Omitted. (b) General Liability Insurance. Tenant shall, at its own cost and expense, maintain a policy or policies of comprehensive general liability insurance with respect to the Property with the premiums thereon fully paid on or before the due date, which insurance shall afford minimum protection in the aggregate of not less than Two Million Dollars ($2,000,000) combined single limit coverage of bodily injury, property damage or combination thereof. (c) Workers' Compensation Insurance. Tenant shall provide workers' compensation insurance as required by law ( d) Additional Insurance Reguirements. All liability insurance shall include, but not be limited to, personal injury, cross liability, and severability of interest clauses, products/completed operations, broad form property damage, independent contractors, and owned, non-owned and hired vehicles. All insurance policies (except for Worker's Compensation) 8 of24
November 2, 2021, Item #7shall name the Landlord as an additional insured, shall provide for notice to the Landlord no later than thirty (30) days prior to any cancellation or modification of such policies, and shall be provided by Class A-VII rated insurance carriers reasonably acceptable to the Landlord. Tenant shall provide the Landlord with current Certificates of Insurance evidencing Tenant's compliance with this Paragraph no later than the Commencement Date and upon any subsequent request by the Landlord. (e) Self-Insure. Tenant shall have the right to self-insure with respect to any or all of the insurance required by the Landlord, and such self-insurance shall be deemed to have satisfied any and/or all obligations required under this agreement. 10. Indemnification. (a) Tenant shall defend, indemnify and hold the Landlord, its elected and appointed officers, employees and officials harmless from all liability whatsoever on account of any damage, injury or liability of any kind or for any injury to or death of persons or damage to property of Tenant or any other person occurring during the term of this Lease arising from any of the following: (i) the use, occupancy or enjoyment of the Property, or Tenant's operations thereon, by Tenant or Tenant's customers, employees, contractors, subcontractors, invitees, permittees, and assignees, or(ii) Tenant's negligence or intentional misconduct, including any breach of this Lease beyond any applicable notice and cure period, or (iii) liens, claims and demands related to Tenant's use of the Property. Except to the extent arising due to Landlord's negligence or intentional misconduct, Tenant shall in all cases accept any tender of the defense of any action or proceeding arising out of the foregoing in which Landlord is named or made party and shall defend the Landlord as provided herein with counsel reasonably selected by Tenant. Tenant shall not be liable for such damage or injury to the extent and in the proportion that the same is ultimately determined to be attributable to the negligence or misconduct of the Landlord or its officers, employees, agents or representatives, or the Landlord's failure to perform its obligations pursuant to this Lease. Tenant's obligation to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred by Landlord. Tenant's obligations set forth in this Section 10 shall not include consequential, exemplary, or punitive damages. This indemnity provision shall apply to all claims that accrued, or injuries that occurred, prior to Tenant vacating the Property, regardless of when such claims or injuries were discovered. 11. Assumption of Risk. Except for injuries to persons caused by the negligence or willful misconduct ofLandlord, and not covered by insurance maintained, or required by this Lease to be maintained, by Tenant: (a) Tenant hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Tenant, including its employees, contractors and subcontractors, in or about the Property; and (b) the Parties hereby agree that the Landlord is not to be liable for any injury or damage which may be sustained by the person, goods or property of Tenant or its employees, contractors, subcontractors in or about the Property, whether said damage or injury results from conditions arising within the Property or from other sources. 12. Utilities. To the extent applicable, Tenant shall pay any and all charges for water, sewer, gas, electricity, telephone, and/or any other services and utilities used by Tenant on the Property during the term of this Lease unless otherwise expressly agreed in writing by the Landlord. Tenant shall indemnify and hold the Landlord harmless from and against any liability or damages resulting from, arising out of, or connected with, the provision of, or failure to provide 9 of24
November 2, 2021, Item #7or pay any charges assessed against the Property for such utility services; provided, however that Tenant shall not indemnify the Landlord for damages resulting from the loss of any utility service which results from the Landlord's conduct or the conduct of any contractors, engineers or third parties acting on behalf of the Landlord that are in the Landlord's control. 13. Inspection. The City shall have the right to enter upon the Property at all reasonable hours to inspect the same upon twenty-four (24) hours' written notice to the Tenant, provided the City shall not thereby unreasonably interfere with Tenant's business on the Property. 14. Damage and Destruction. In addition to other rights herein, if the Property or any part thereof or any appurtenance thereto is so damaged by fire, casualty or structural defects that the same cannot be used for Tenant's purposes, or if the Property cannot be used for Tenant's purposes for any other reason, then Tenant shall have the right within ninety (90) days following such damage to elect to terminate this Lease as of the date of such damage by providing written notice to the City. In the event of minor damage to any part of the Property, and if such damage does not render the Property unusable for Tenant's purposes and subject to Paragraph 6(a) above, Tenant shall promptly repair such damage at Tenant's sole cost and expense. In making the repairs called for in this paragraph, Tenant shall not be liable for any delays resulting from strikes, governmental restrictions, inability to obtain necessary materials or labor or other matters which are beyond the reasonable control ofTenant. 15. Quiet Possession. The Landlord covenants and warrants that upon performance by Tenant of its obligations hereunder, the Landlord will keep and maintain Tenant in exclusive, quiet, peaceable, undisturbed and uninterrupted possession of the Property during the term of this Lease; provided that the Landlord shall have no obligation to expend funds to repair or maintain the Property to maintain compliance with applicable laws or to maintain the Property in the condition required for Tenant's intended use and quiet enjoyment thereof. 16. Consent. Landlord shall not unreasonably withhold, condition or delay its consent with respect to any matter for which the Landlord's consent is required or desirable under this Lease. 17. Material Breach. In addition to any other remedies available at law or in equity, any party not in default hereunder may immediately terminate this Lease upon the breach of a material obligation under this Lease by the other Party that is not cured within thirty (30) days after written notice of such breach to such other Party, by providing written notice of intent to terminate to all other Parties hereto. 18. Compliance with Law. Tenant shall comply with all federal, state, and local laws, orders, ordinances and other public requirements now or hereafter pertaining to Tenant's operation of the Business and its use of the Property. The Landlord shall comply with all federal, state, and local laws, orders, ordinances and other public requirements now or hereafter affecting the Property. 19. Mutual Representations. Each party hereby represents and warrants (i) he or she is an individual or it is a duly organized entity, validly existing and in good standing under the laws of California or Delaware; (ii) that the party has the legal right and authority to enter into and perform its obligations under this Lease; and (iii) that the execution and performance of this Lease 10 of 24
November 2, 2021, Item #7will not conflict with or violate any provision of any law having applicability to such party; and (iv) that this Lease, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. 20. Waiver. No express waiver shall affect any default other than the default specified in the express waiver and any waiver shall be effective only for the time and to the extent therein stated. No waiver by the Landlord or Tenant shall be construed as a waiver of a subsequent breach of the same covenant, term or condition. 21. Assignment and Delegation. Except as expressly permitted by the terms and provisions herein, no party shall assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other parties, provided that, notwithstanding the foregoing, each party may assign this Lease pursuant to a merger or a sale of all or substantially all of its assets or capital stock. Except as permitted by the foregoing, any attempted assignment or delegation shall be null, void and of no effect. 22. Notices. All notices required by or relating to this Lease shall be in writing and shall be sent via certified mail, postage prepaid, return receipt requested, to each and every party to this Lease and addressed as follows: If to Tenant: San Diego Gas & Electric Attn: Nick Tabor 8960 Balboa Ave., CPA 0 1 San Diego, CA 92121 Ifto City: City of Poway Attn: City Manager 13325 Civic Center Drive Poway, CA 92064 23. Counterparts. This Lease may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties agree that a digital or electronic signature on this Lease shall be accepted as if the Party executing this Lease had hand delivered an ink-signed original. 24. Headings. The article, section, and paragraph titles and headings contained in this Lease are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Lease or any of its provisions. 25. Definitions. Deleted. 26. Pronouns. Whenever used in this Lease, the singular shall include the plural, the plural shall include the singular, and the neuter gender shall include the male and female as well as a trust, firm, company, or corporation, all as the context and meaning of this Lease may require. 27. Amendments. This Lease may be altered, amended, or repealed only by a writing signed by all of the parties. 11 of 24
November 2, 2021, Item #728. Additional Documents and Acts. The parties to this Lease shall promptly execute and deliver any and all additional documents, instruments, notices, and other assurances, and shall do any and all other acts and things, reasonably necessary in connection with the performance of their respective obligations under this Lease and to carry out the intent of the parties. 29. Severability. If any provision of this Lease is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Lease shall remain in effect. 30. Successors and Assigns. This Lease shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, and permitted successors and assigns. 31. Governing Law and Forum Selection. This Lease shall be governed by, and construed in accordance with, the laws of the State of California. The federal or state courts located in San Diego County, California shall have exclusive jurisdiction to hear any dispute arising under this Lease. Each party hereto consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth herein. Tenant hereby waives any right to remove any action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. 32. Attorneys' Fees. In the event Landlord or Tenant commences any action or proceeding, including but not limited to the filing of a lawsuit, in connection with the enforcement of this Lease, then as between Landlord and Tenant, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs, arbitration costs, expert witness fees, and reasonable attorneys' fees incurred in connection with such action, and all fees, costs and expenses incurred on any appeal or in collection of any judgment. 33. Entire Agreement. This Lease constitutes the whole and entire agreement of the parties with respect to the subject matter of this Lease, and it shall not be modified or amended in any respect except by a written instrument executed by all the parties. This Lease replaces and supersedes all prior written and oral agreements by and among the parties or any of them. IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above written. 12 of 24
November 2, 2021, Item #7CITY OF POWAY, a public body, corporate and politic By: ________ _ Chris Hazeltine, City lvhnager APPROVED AS TO FORM: Alan B. Fenstermacher, City Attorney ATTEST: Carrie Gallagher, CMC, City Clerk 13 of 24 San Diego Gas & Electric Company, a California corporation By: ________ _
November 2, 2021, Item #7Staging Area No. 1 Exhibit A Legal Description APNs 314-040-17 and 314-040-25 That portion of Sections 2 and 11, Township 14 South, Range 2 West, San Bernardino Meridian, in the City of Poway, County of San Diego, State of California, according to United States Government Survey, approved September 11, 1879, described as Parcel No. 80-0960A, Parcel 1, in Grant Deed to the County of San Diego, recorded October 31, 1980 as File/Page No. 80-365974 of Official Records of said County, described as follows: Commencing at a point in the centerline of Pomerado Road, as shown on Record of Survey Map No. 6563, filed in the Office of the County Recorder of said County, July 21, 1965 as File No. 130701, said point being South 86°37'45" East, 1294.88 feet along the Northerly line of said Section 11 from the Northwesterly corner of said Section 11; thence along said Northerly line and said Parcel 80-0960A, Parcel 1, South 86°37'45" East, 49.05 feet to a line parallel with and distant 33.00 feet Easterly of the centerline of Road Survey No. 1859-2,, filed in the Office of the County Engineer of said County; thence leaving said Northerly line, along said parallel line, and along he Westerly, Northerly and Easterly boundary of said Parcel No. 80-0960A, Parcel 1 the following courses: North 01 °05'02" East, 523.80 feet; thence South 88°54'58" East, 185.40; thence South 7 4 ° 19' 1 O" East, 118.40 feet; thence North 51 0 43'40" East, 138. 84 feet; thence South 46°10'20" East, 69.30 feet; thence South 74°48'40" East, 72.50 feet; thence North 83°42'00" East, 173.00 feet; thence North 12°14'24" East, 198.52 feet; thence North 53°17'04" East, 117.59 feet to the centerline of proposed Camino Del Norte; thence continuing along said boundary of Parcel No. 80-0960A, Parcel 1, and along said centerline of proposed Camino Del Norte, South 36°42'56" East, 446.25 feet to the beginning of a 1800.00 foot radius curve, concave Northeasterly; thence continuing along said boundary of Parcel No. 80-0960A, Parcel 1, the following courses: Southeasterly along said curve through a central angle of 0°43'31" a distance of 22.79 feet; thence non-tangent to said curve South 52°33'00" West, 68.00 feet; thence South. 82°09'02" West, 183.52 feet; thence South 30° 40'51" West, 243. 02 feet; thence South 13°38'34" West, 105.99 feet; thence South 02°12'53" West, 43.80 feet to the Southeasterly boundary of land described in Exhibit "A" of Grant Deed to R&R Partners-Poway, a California General Partnership, recorded May 27, 1987 as File/Page No. 87-290444 of Official Records of said County and the true point of beginning; thence continuing along said Easterly and Southerly boundary of Parcel No. 80-0960A, Parcel 1, the following courses: South 02°12'53" West, 137.34 feet; thence South 09°42'31" East, 919.16 feet; thence South 02°22'19" West, 169.15 feet; thence South 64°09'10" West, 235.22 feet to the Northeast corner of land described in Grant Deed to Poway Union School District, recorded December 9, 1960 as Document No. 239494 of Official Records of said County; thence along the Northerly line of said land described in Grant Deed to Poway Union School District and its Westerly prolongation, North 89°09'20" West, 740.00 feet to said centerline of Pomerado Road as shown on said Record of Survey No. 6563 and the Southwest corner of said Parcel No. 80-0960A, Parcel 1; thence leaving said Easterly prolongation of the Northerly line of said land described in Grant Deed to Poway Union School District and the Southerly boundary of said Parcel No. 80-0960A, Parcel 1, along said centerline of Pomerado Road as shown on said Record of Survey No. 6563 and the Westerly boundary of said Parcel No. 80-0960A, Parcel 1, North 00°50'40" East, 544.95 feet to the Southwest corner of said land described in Exhibit "A" of Grant Deed to R&R Partners-Poway; thence leaving said centerline of Pomerado Road as shown on said Record of Survey No. 6563 and said Westerly boundary of Parcel No. 80-0960A, Parcel 1, along the Southerly line of said land 14 of 24
November 2, 2021, Item #7described in Exhibit "A" of Grant Deed to R&R Partners-Poway, South 88°41 '45" East, 60.51 feet to a line parallel with and distant 51.00 feet Easterly of the centerline of Road Survey No. 1859-2; thence leaving said Southerly line, continuing along said land described in Exhibit "A" of Grant Deed to R&R Partners-Poway and along said parallel line North 01 °18'15" East, 503.44 feet to the beginning of a 25.00 foot radius curve, concave Southeasterly; thence leaving said parallel line, continuing along said land described in Exhibit "A' of Grant Deed to R&R Partners-Poway, Northwesterly along said curve through a central angle of 88°00'00" a distance of 38.40 feet; thence continuing along said land described in Exhibit "A" of Grant Deed to R&R Partners-Poway the following courses: North 89°18'15" East, 56.27 feet to the beginning of a 1057 .00 foot radius curve, concave Northwesterly; thence Northeasterly along said curve through a central angle of 37°49'03" a distance of 697.66 feet; thence North 51 °29'12" East, 3.35 feet to said Easterly boundary of Parcel No. 80-0960A, Parcel 1 and the true point of beginning. 15 of 24
November 2, 2021, Item #7SAN DIEGO 16 of 24 Exhibit B Vicinity Map Line 1600 -Pomerado South Segment PO ~y Pipeli e replacement Existing --pipeline 1600 e Section
November 2, 2021, Item #7LEGEND 17 of 24 LAYDOWN YARD LOCATION lO Exhibit C Staging Area No. 1 APN s 314-040-1 7 and 314-040-25 AD' 31~-0~0-:~-8) ~< .; 1 ..:-040-l 7-GO C,':, ER: r IF OF PO','-'A. ( ~·'•'ITl' ...... itnn~) .;..., 1--............ --.------------1
November 2, 2021, Item #7Staging Area No. 2 Exhibit C Legal Description APN 317-251-31 ALL THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 23, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF APPROVED AUGUST 29, 1890, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF THE SOUTH LINE OF SAID SECTION 23 WITH THE NORTHEASTERLY LINE OF MISSION ROAD 1-A AS SHOWN ON SHEET 13 OF MAP OF SAID MISSION ROAD 1-A, SAN DIEGO COUNTY HIGHWAY COMMISSION, RECORDS OF THE COUNTY SURVEYOR OF SAID SAN DIEGO COUNTY, SAID POINT BEING DISTANT NORTH 89° 42' EAST, 26.62 FEET, ALONG SAID SECTION LINE FROM STATION 318 PLUS 97.72 ON THE CENTER LINE OF SAID MISSION ROAD; THENCE NORTH 89° 42' EAST ALONG SAID SOUTH LINE OF SAID SECTION, 162.65 FEET; THENCE NORTH 0° 41' EAST, 146.87 FEET TO A POINT ON A CURVE WHOSE CENTER BEARS NORTH 0° 41' EAST 146.87 FEET TO A POINT ON A CURVE WHOSE CENTER BEARS NORTH o· 41' EAST 50 FEET FROM THE AFORESAID POINT, THENCE WESTERLY AND NORTHERLY ALONG SAID CURVE 95.99 FEET; THENCE SOUTH 83° 52' 42" WEST 126.66 FEET; THENCE SOUTH 38° 53' WEST, 130.00 FEET TO A POINT ON SAID NORTHEASTERLY LINE OF SAID MISSION ROAD; THENCE SOUTH 41° 35' EAST ALONG SAID NORTHEASTERLY LINE BEING PARALLEL WITH AND DISTANT 20 FEET AT RIGHT ANGLES NORTHEASTERLY FROM THE CENTER LINE OF SAID ROAD, AS SHOWN ON THE ABOVE-MENTIONED MAP OF SAID ROAD 134.59 FEET TO THE POINT OF BEGINNING. 18 of 24
November 2, 2021, Item #719 of 24 Exhibit D Vicinity Map Staging Area No. 2 APNs 317-251-31 LAYDOWN YARD CITY OF POWAY 317-251-31-00
November 2, 2021, Item #7Exhibit E Slurry Seal Areas of Improvement 20 of 24
November 2, 2021, Item #7SAN DIEGO 21 of 24 Exhibit B Vicinity Map PO ~y ATTACHMENT B Pipeline replacement __ Existing pipeline 1600 Section
November 2, 2021, Item #7LEGEND LAYDOW YARD --PARCE LINE 22 of 24 i..:... .... . · CITYOF -POWAY lO Exhibit C Staging Area No. 1 ATTACHMENT C
November 2, 2021, Item #723 of 24 Exhibit D Staging Area No. 2 LAYOOWN YARD CITY OF POWAY 317-251-31-00 CITY OF POWAY 320-011-09-00 -~PN: .) . "7-:::: I --C\{} (/.'iNER· CITr o-FO'.',,/.\Y ATTACHMENT D
November 2, 2021, Item #724 of 24 Exhibit E Slurry Seal Location ATTACHMENT E