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Home My WebLink AboutCabrillo Power LLC |San Diego Gas and Electric Company |Carlsbad Energy Center |Carlsbad Municipal Water District; 2025-04-16; (3)RELEASE This Release (this "Release"), dated as of ~\ }\D, 2025, is by and among the City of Carlsbad, a charter city located in San Diego County (the "City"), Cabrillo Power I LLC, a Delaware limited liability company ("Cab I"), San Diego Gas & Electric Company, a California corporation ("SDG&E'), Carlsbad Energy Center LLC, a Delaware limited liability company ("CEC'), and Carlsbad Municipal Water District, a public agency organized under the Municipal Water Act of 1911, and a subsidiary district of the City of Carlsbad, California ("CMWD"). The City, Cab I, SDG&E, CEC and CMWD are sometimes referred to in this Release collectively as the "Parties" and each individually as a "Party". RECITALS A. WHEREAS, the Pmiies entered into that certain Settlement Agreement, dated January 14, 2014 (the "Settlement Agreement"), pursuant to which the Parties settled certain long- standing disputes between the Parties and to provide for certain other transactions specified therein, which Original Settlement Agreement encumbered the real property located in the City of Carlsbad, County of San Diego, State of California which is described on Exhibit A attached hereto. Any capitalized term used herein and not otherwise defined herein shall have the meaning ascribed to it in the Settlement Agreement. B. WHEREAS, concurrently herewith, the Pmiies have executed that certain Settlement Agreement Termination Agreement (the "Termination Agreement"), pursuant to which the Pmiies agreed to terminate the Settlement Agreement. C. WHEREAS, the Pmiies desire, in connection with such Termination Agreement, to release each of the Parties from any claims under the Settlement Agreement, as set forth herein. NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby acknowledged, each Party agree as follows: 1. Release. a. Each Party, for itself and on behalf of each of its Affiliates and its and their respective equity holders, officers, directors, managers, employees, counsel, accountants, advisers, consultants and agents (collectively, "Representatives"), hereby waives, releases and forever discharges each other Party, its Affiliates and its and their Representatives from any and all losses, liabilities, taxes or damages, including the costs and expenses (including reasonable fees and out-of-pocket expenses of counsel, consultants, experts, and other professional fees) associated therewith, whether known or unknown, which such Pmiy has or may have in the future , arising out of or in connection with the Settlement Agreement or the transactions contemplated therein (collectively, the "Settlement Released Claims"). For avoidance of doubt, each and every guaranty issued in support of obligations set forth in the Settlement Agreement is hereby terminated, any guarantor under the Settlement Agreement shall have no further obligations, duties or liabilities thereunder, and each Pmiy hereby releases, waives and forever ATTACHMENT C discharges any such guarantors from all obligations, duties or liabilities of whatever nature arising under or in connection with the Settlement Agreement. EACH PARTY, FOR ITSELF AND ON BEHALF OF EACH OF ITS AFFILIATES AND ITS AND THEIR REPRESENTATIVES, SPECIFICALLY WAIVES THE PROVISIONS OF ANY LEGAL REQUIREMENT LIMITING THE GENERALITY OR SCOPE OF THE RELEASES HEREIN, INCLUDING BUT NOT LIMITED TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HA VE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY." b. Each Party, for itself and on behalf of each of its Affiliates and its or their Representatives, acknowledges that it or its attorneys or agents may hereafter discover claims or facts in addition to, or different from, those which it now believes to be true with respect to the subject matter of the Settlement Released Claims, but agrees that (A) it has taken such possibility into account in reaching this Release, (B) the releases given herein shall be and remain in effect notwithstanding the discovery or existence of any such additional or different claims or facts, as to which such Party expressly assumes the risk, and (C) notwithstanding the discovery or existence of any such additional or different claims or facts, it is nonetheless such Party's intention, for itself and on behalf of each of its Affiliates and its and their Representatives, to fully, finally and forever settle and release all disputes and differences, known or unknown, suspected or unsuspected, as to the Settlement Released Claims. Each Party, for itself and on behalf of each of its Affiliates and its and their Representatives, hereby covenants not to file or commence any legal proceedings against any Party or any of such Party's Affiliates or its or their respective Representatives in connection with any matter released hereunder. c. Each Pmiy, for itself and on behalf of each of its Affiliates and its and their Representatives, acknowledges that it has carefully reviewed this Section 1 and has had the opportunity to discuss it with legal counsel and that this Section 1 1s a material part of this Release. d. This Release shall survive indefinitely. 2. Representations and Warranties of the Parties. Each Party represents and warrants that: (a) such Party has the full right, legal power and actual authority to enter into this Release without the consent of any person, firm or entity; and (b) no past, present or future employee of such Party has any claim against any other Party for any reason. ATTACHMENT C 3. Reserved. 4. Governing Law. This Agreement is governed and construed in accordance with California law. The Parties agree that the venue for any dispute arising from this Release shall be San Diego County, California. 5. Preparation of Release. No inference, assumption, or presumption shall be drawn from the fact that a Party or its attorney prepared and/or drafted this Release. It shall be conclusively presumed that all Parties participated equally in the preparation and/or drafting of this Release. 6. Voluntary Execution. The Parties acknowledge that their execution hereof is voluntary, that they have been advised by their respective legal counsel (or had an opportunity to do so and elected not to) of all of the provisions hereof, and that, in executing this Release, each is not relying on any inducements, promises, and representations made by the other Parties or his, her or its representatives except as may be expressly set forth herein. 7. General Terms. This Release contains the entire agreement between the Parties regarding the matters covered in this Release. This Release may not be altered, amended, modified, or otherwise changed in any respect, except by a writing executed by an authorized representative of each Party. This Release may be executed in counterparts, each of which shall be deemed an original, and when all taken together, shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. Federal ESIGN Act of 2000, California's Uniform Electronic Transactions Act (Cal. Civil Code § 1633.1 et seq. or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The section titles in this Release are used for the convenience of the Parties and are not to be taken as part of the instrument or used to interpret this Release. Time is of the essence in this Release. The undersigned, by their signatures, represent and warrant that they are authorized agents of their respective entities and are authorized to execute this Release. This Release shall bind and inure to the benefit of the Parties and their respective heirs, successors, and assigns. [Signatures on Following Page] ATTACHMENT C IN WITNESS WHEREOF this Release has been duly executed and delivered by each Paiiy as of the date first above written. SDG&E: CMWD: Cab I: City: CEC: By: Nm in C. er y Title: Chief Operating Officer & Chief Safety Officer CARLSBAD MUNICIPAL WATER DISTRICT By: Name: Geoff Patnoe Title: Executive Manager APPROVED AS TO FORM: By: Name: Cindie K. McMahon Title: General Counsel CABRILLO POWER I LLC By: Name: Mark Rohrlick Title: Vice President of Cabrillo Power I LLC CITY OF CARLSBAD By: Name: Geoff Patnoe Title: City Manager APPROVED AS TO FORM: By: Name: Cindie K. McMahon Title: City Attorney CARLSBAD ENERGY CENTER LLC By: Name: Daniel Summa Title: Vice President ATTACHMENT C IN WITNESS WHEREOF this Release has been duly executed and delivered by each Party as of the date first above written. SDG&E: CMWD: Cab I: City: CEC: SAN DIEGO GAS & ELECTRIC COMPANY By: Name: Kevin C. Geraghty Title: Chief Operating Officer & Chief Safety Officer CARLSBAD MUNICIPAL WATER DISTRICT By: 9\L,t O ~- Name: Geoff Patnoe Title: Executive Manager APPROVED AS TO FORM: By: ~IC~ Name: Cindie K. McMahon Title: General Counsel By: Name. a rlick Title: Vice Pr sident of Cabrillo Power I LLC CITY OF CARLSBAD By: ~Q Name: Geoff Patnoe Title: City Manager l - APPROVED AS TO FORM: By : ~ IL J-(_~ Name: Cindie K. McMahon Title: City Attorney By: Name: Title: ATTACHMENT C