HomeMy WebLinkAbout2009-09-22; City Council; CS-059; Approving the amended development agreement...EXHIBIT 3
1 ORDINANCE NO. CS-059
2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE AMENDED AND
RESTATED DEVELOPMENT AGREEMENT DA 05-01 (A)
BETWEEN THE CITY OF CARLSBAD AND POSEIDON
RESOURCES (CHANNELSIDE) LLC TO PROVIDE FOR THE
6 CONSTRUCTION OF THE CARLSBAD SEAWATER
7 DESALINATION PLANT AND APPURTENANT FACILITIES,
INCLUDING PIPELINES, LOCATED BOTH AT THE ENCINA
8 POWER STATION AND OFFISTE OF THE POWER STATION.
CASE NAME: DESALINATION PROJECT CHANGES
CASE NO.: DA 05-01 (A)
10
1} WHEREAS, the City Council of the City of Carlsbad, California has reviewed and
12 considered a request from Poseidon Resources (Channelside) LLC to approve the Amended
and Restated Development Agreement - DA 05-01 (A) for the Carlsbad Seawater Desalination
14
Plant; and
16 WHEREAS, after procedures in accordance with the requirements of law, the
17 City of Carlsbad has determined that the public interest indicates that said Amended and
18
19 Restated Development Agreement be approved; and
20 WHEREAS, changes made by the Amended and Restated Development
21 Agreement are shown in strikeout for words to be deleted and underline for words to be added;
22
23 and
24 WHEREAS, California Government Code Sections 65867.5 and 65868 and
25
Carlsbad Municipal Code Sections 21.70.090 and 21.70.120 state the approval of an
27 amendment to a development agreement is a legislative act which must be approved by
28 ordinance; and
WHEREAS, this ordinance is adopted pursuant to Article 2.5 of the California
Government Code, Chapter 21.70 of the Carlsbad Municipal Code, and Carlsbad Council Policy
Statement 56; and
WHEREAS, the City Council did on the 15th day of September. 2009, hold a
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Council considered all factors
relating to the Amended and Restated Development Agreement.
2
NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
4 ordain as follows:
SECTION I: The City Council finds that there have been further refinements in
6
7 the development agreement and that the Amended and Restated Development Agreement
8 between the City of Carlsbad and Poseidon Resources (Channelside) LLC, attached hereto
9 marked Exhibit "X-1," dated September 9, 2009, and incorporated by reference ("Amended and
10
Restated Development Agreement"), and it has carefully reviewed that document and it is
12 approved in substantially the form presented at the Council meeting of September 15, 2009
and subject to obtaining the consent of the property owner (Cabrillo Power I, LLC) in a form
14
satisfactory to the City Attorney.
16 SECTION II: The Council further finds that the findings and conditions of the
17 Planning Commission in Planning Commission Resolution No. 6634 that recommended for
18
19 approval the ("Amended and Restated Development Agreement" dated August 19, 2009, on file
20 jn the Office of the City Clerk), also apply to the September 9, 2009 development agreement as
21 it complies with the intent and purpose of the development ordinance and therefore constitute
22
23 the findings and conditions of the City Council.
24 SECTION III: Upon the occurrence of the Effective Date (as defined in the
25 Amended and Restated Development Agreement), the City Clerk is authorized and directed to
26
27 record the Amended and Restated Development Agreement in the Office of the San Diego
County Recorder pursuant to Section 21.70.130 of the Carlsbad Municipal Code.
EFFECTIVE DATE: This ordinance shall be effective thirty (30) days after
its adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be
published at least once in a publication of general circulation in the City of Carlsbad within
fifteen (15) days after its adoption. Notwithstanding the preceding, this ordinance shall not
become effective unless and until the Development Agreement is approved by the California
Coastal Commission.
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTRODUCED AND FIRST READ at a joint special meeting of the Carlsbad
City Council and Housing and Redevelopment Commission on the 15th day of September
2009, and thereafter.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Carlsbad on the 22nd day of September 2009, by the following vote, to wit:
AYES:COUNCIL MEMBERS, LEWIS, KULCHIN, HALL, PACKARD AND BLACKBURN.
NOES: NONE.
ABSENT: NONE.
ABSTAIN:NONE.
APPROVED AS TO FORM AND LEGALITY
ONAtQR. BALL, City Attorney
CLAUDE A. LEWIS, Mayor
ATTEST:
-3-
Recorded at request of:
Clerk, City Council
City of Carlsbad
When recorded return to: )
ClTY OF CARLSBAD
j
)
1200 Carlsbad Village Drive 1
Carlsbad, CA 92008 )
Attn: City Attorney 1
)
(Space above for Recorderrs Use Only)
This document is exempt from the payment of
a recording fee pursuant to Government Code
Section 6103.
DEVELOPMENT AGREEMENT
A DEVELOPMENT AGREEMENT BETWEEN
ClTY OF CARLSBAD
and
POSEIDON RESOURCES (CHANNELSIDE) LLC
Exhibit X-I
September 9, 2009
15'
TABLE OF CONTENTS
1 DEFINITIONS AND EXHIBITS ................. ....... ................................................ 2 . . 1.1 Defin~t~ons .................... ......... ...................................................................... 2
I2 xh
2 GENERAL PROVISIONS .............................. - -
2.1 Binding Effect of Agreement44
2.2 Legal Interest in Property44
2.3 Term44
2.4 Sale, Transfer or Assignment44
2.5 Amendment or Cancellation of Agreement4-
2.6 Termination44
2.7 Liability-W........................................
2.8 Compliance With Environmental Law*-
3 DEVELOPMENT OF THE PROJECT. ........................................
3.1 Permitted .............................................
3.2 Vested Right&&
3.3 Effect of Agreement on Land Use Regulationsll...........................
3.4 Timing of Developrnentll...........................
3.5 Changes and AmendmentsIIa
3.6 Reservations of AuthorityIZ........................................
3.7 Public work&&
3.8 Provision of Real Property Interests by the Cityla-
' 3.9 Regulation by Other Public AgenciePA
3.10 Tentative Tract Map ExtensionIA-
3.1 1 Poseidon Obligation to Obtain and Maintain Insurancel4d
...................... ....................................................... 4 PUBLIC BENEFITS .. Mg
4.1 lntentl~a
4.2 Mitigation Measures and Fees--
4.3 ~edication-&
5 FINANCING OF APPURTENANT FACILITIES; OTHER PUBLIC
FINANCING; USE OF PUBLIC RIGHTS OF WAY .......................................... Ss
5.1 Appurtenant ~acilities46-
5.2 Other Public Financing**
5.3 Use of Public Rights of Way%%
6 ANNUAL REVIEW. ......................................................................................... S a
6.1 Periodic Review464
6.2 Opportunity to Be& ~eardII*
6.3 Information to 4e& Provided Poseidon*-
7 INCORPORATION AND ANNEXATION. .......................... .. ........................ Sa
7.1 intent**
7.2 1ncorporationlZ~
7.3 ~nnexation47-
8 DEFAULT AND REMEDIES ................................
8.1 Remedies in General473
8.2 Termination by City*. The C- this
8.3 Liquidated Damages for Poseidon's Failure to Amend This
Agreement Upon Relocation of Plant Facilities*-
8.4 Specific Performancs%O........................................
8.5 Release and Rese~ationlg4
8.6 Terminationsf Agreement for Default of Poseidonl-8-
8.7 Termination of Agreement for Default of the City=-
8.8 Rights, Remedies for Negligence, Willful Misconduct4OL
9 THIRD PARTY LITIGATION; INDEMNIFICATION ......................................
9.1 General Plan Litigationa........................................
9.2 Third Party Litigation Concerning Agreementah
9.3 Breaches of Agreement; Property Damage, Bodily Injury or Death
ax
9.4 Indemnification Procedur&&
9.5 SUN~V~I~~........................................
..................................................................... 10 MORTGAGEE PROTECTION. =a
11 MISCELLANEOUS PROVISIONS. a
11 .I Recordation of Agreement223
11.2 ~urther ~ctionsm
11.3 ~mendmentaa
11.4 Entire ~~reementaa
11.5 ~otices233
11.6 Controlling ~aw31a
11.7 Headings2
11.8 Cumulative Rights; waiver==
11.9 Liberal ~onstruction*a
11.10 ~everability*a
11.11 Good Faith and Fair ~ealing-24-
11.12 No Third Party ~eneficiaries-24-
11.13 Execution in Counterparts. ........................................................*=
11.14 Time of the ~ssence-?4-
11.15 Number, ~ende.252
11.16 ~elationship-252
11.17 Joint and Several Obligations3-
11.18 Force Majeur-a
11.19 Mutual Covenants**
11.20 Successors in interests-
11.21 Jurisdiction and ~enu&-
11.22 Project as a Private Undertaking=-
11.23 Eminent Domain%%
11.24 Agent for Service of Proces-A
11.25 Authority to ~xecut&&
11.26 Commission Approval Required%-
11.27 Approval Procedur-&
- DEVELOPMENT AGREEMENT
This Agreement, entered into as of the Effective Date, by and between the
City and Poseidon, is made with respect to the following facts:
RECITALS
WHEREAS, the City is authorized to enter into binding development
agreements with persons having legal or equitable interests in real property for the
development of such property, pursuant to Section 65864, gt g. of the Code; and,
WHEREAS, pursuant to Section 65865 of the Code, the City has adopted
Chapter 21.70 of the Carlsbad Municipal Code, establishing rules and regulations for
consideration of development agreements; and,
WHEREAS, Poseidon and the City have agreed to enter into a development
agreement and proceedings have been taken in accordance with Chapter 21.70 and
otherwise in accordance with the rules and regulations of the City; and,
WHEREAS, by electing to enter into this Agreement, the City shall bind future
City Councils of the City by the obligations specified herein and limit the future exercise
of celtain governmental and proprietary powers of the City; and,
WHEREAS, the terms and conditions of this Agreement have undergone
extensive review by the City and the City Council of the City and have been found to be
fair, just and reasonable; and,
WHEREAS, the best interests of the citizens of the City and the public health,
safety and welfare will be served by entering into this Agreement; and,
WHEREAS, the Project (as hereinafter defined) is consistent with, and
includes elements specificallv intended to advance the goals of the State of California
related to, the protection, maintenance and where feasible enhancement and
restoration of the overall quality of the coastal zone environment and to maximize public
access and recreational opportunities along the coast, and includes public dedication of
several acres of ocean and lagoon front property that has been agreed to by Poseidon
as described in Exhibit 5 of the Precise Development Plan (PDP 00-02); and,
WHEREAS, all of the procedures of CEQA have been met with respect to the
Project and this Agreement; and,
WHEREAS, by Council Resolution No. , the City Council, afler
making appropriate findings, cetirfied the Environmental Impact Repo- for the
Project, dated , 2006, under the provisions of CEQA; and,
WHEREAS, this Agreement and the Project are consistent with the City's
General Plan and the Precise Development Plan applicable to the Property; and.
WHEREAS, all actions taken and approvals given by the City have been duly
taken or approved in accordance with Chapter 21.70 and with all applicable legal
requirements for notice, public hearings, findings, votes, and other procedural matters;
and,
WHEREAS, pursuant to the Approval Ordinance, the City Council approved
the Approval Or-
oval Ordimme&&&
WHEREAS, development of the Project in accordance with this Agreement
will provide substantial benefits to the City and will further important policies and goals
of the City; and,
WHEREAS, this Agreement will eliminate uncertainty in planning and provide
for the orderlv develooment of the Proiect. ensure progressive installation of necessary
improvemenk, provide for public serv~ces'appropr~ate~to the development of the ~rojed.
and qenerallv serve the purposes for which development agreements under Sections
65864, &. of the code and Chapter 21.70 are intended and,
WHEREAS, Poseidon has incurred and will in the future incur substantial
costs in the development of the Project in accordance with this Agreement in order to
assure vesting of legal rights to develop the Project in accordance with this Agreement.
NOW. THEREFORE. in consideration of the above recitals and of the mutual ~. ~~
covenants hereinafter contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
COVENANTS
1 DEFINITIONS AND EXHIBITS.
1.1 Definitions. When used in this Agreement, the following terms shall
have the meaning set forth below:
1 .I .1 !:Agreement!!: means this-
Development Agreement.
1.1.2 "Agreement Date" means the date this Agreement is fully
executed by the parties.
U +M-"Approval Ordinance" means the City Ordinance No.
,N=7& which became effective on
attached.
jJ& *Appurtenant Facilities" means product Mhx . . .. . assets, whether or not located at the Power Plant, consisting of
$$%!%and ancillary facilities, including without limitation (a) pipelines, pump
stations and other facilities within the Citv that are necessaw or convenient for the use.
conveyance, storage, and distribution ofdesalinated seawater, and (b) such incidental
amurtenant and ancillaw facilities as are located in the Cities of Oceanside& - ?&ms or Vista. ~aliforhia.
1;LL WCabrillo" means Cabrillo Power I, LLC, a Delaware limited
liability cornpa-ts successors and assigns, and the successors in interest to all or
any part of Cabrillo's interest in the Property.
lU M+"CEQA means the California Environmental Quality Act,
California Publicesources Code Sections 21000 gt sea.
WCityZE means the City of Carlsbad, California, a municipal - corporation and a general law city formed under the laws of the State of California.
WCity Council" means the duly elected members of the City
Council of the City, as those members may from time to time be elected.
MCode" means the California Government Code,
WCommission" means the California Coastal Commission.
WDefault" means (a) with respect to either party, any
failure to perform any material duty or obligation under this Agreement, (b) with respect
to Poseidon, any Event of Default with respect to Poseidon under the Water Purchase
Agreement, and uwith respect to the City, any Event of Default with respect to the
District under the Water Purchase Agreement.
44AL''Development~~ means the improvement of the portion of
the Property subject to the Leasehold for the purposes of completing the structures,
improvements and facilities comprising the Plant Facilities, including, but not limited to:
grading; the construction of infrastructure and public facilities, whether located within or
outside the portion of the Property subject to the Leasehold that are related to the Plant
Facilities; the construction of buildings and structures; and the installation of
landscaping. ~~Developmenr~: does not include the maintenance, re air, reconstruction
or redevelopment of any building, structure, improvement or facility a er the
construction and completion thereof.
T!
LLU development Approvals~~ means all permits and other
entitlements for, subject to approval or issuance by the City, the RDA or the
Commission, as applicable, in connection with: (id Development of the portion of the
Property subject to the Leasehold and (Mu the Appurtenant Facilities, including, but not
limited to:
@)-Project EIR;
&+Precise Development Plan (PDP 00-02w and any
amendments thereto;
(+Coastal Development Permit;
&) ++Redevelopment Permi- f the p;
@ teflmprovement Plans;
&+Habitat Management Plan Permit:
42!
#Haul Route Permit;
Illl-
CkfThis Agreement: andanveto as of
oval Ordinance:
(+Special Use Permit7d
u- . .
4AW"Development Plan:: means the Existing Development
Approvals and the Existing Land Use Regulations applicable to Development of the
Project on4kp&ewd the Property subject to the Leasehold.
&lJJ WDistrict" means the Carlsbad Municipal Water District, a
municipal water district.
4&M-"Effective Datg: means the last to occur of the following: (a) the date the- Approval Ordinance becomes effective, (iil2) the date that
the Agreement is fully executed by the parties, (iiis) the date the Commission approves
this Agreement, or (i@ the date Cabrillo has provided the consent attached hereto as
Exhibit "A!!. 1
WExisting Development Approvals!: means all
Development Approvals approved or issued prior to the Agreement Date. Existing
Development Approvals include the approvals incorporated herein as Exhibit E:Dzz and
all other approvals which are a matter of public record on the Agreement Date.
-Existing Land Use Regulations!: means all Land Use
Regulations in-ct on the Agreement Date. Existing Land Use Regulations include
the Land Use Regulations incorporated herein as Exhibit l:E!z and all other Land Use
Regulations which are a matter of public record on the Agreement Date. Existing Land
Use Regulations do not include Police Power Regulations.
WLand Use Regulation$: means all ordinances,
resolutions, codes, rules, regulations and official policies of the City, other than the
Police Power Regulations, governing the development and use of land, including
without limitation the permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed buildings, the provisions for
reservation or dedication of land for public purposes, and the design, improvement and
construction standards and specifications applicable to the development of the Property.
U M20-"LeaseM means that certain Ground Lease and Easement
Agreement, dateduly 11, 2003, and entered into by and between Poseidon and
cabrill&---%
%l&l- "Leasehold" means Poseidon's interest in a+a&w&the
Property under the tens and conditions of the Lease.
I.l.32- ,I
recordable-
_ti33: WMGD" means million gallons per day.
4&S"Mortgage&!! means a mortgagee of a mortgage, a
beneficiary under a deed of trust or any ot5er security-device lender, and their
successors and assigns.
-Plant Facilities" means production assets consisting of a
reverse-osmosis seawater desalination plant.
LlS 4X%-"Police Power Regulations" means any City ordinance,
resolution, come, regulation or official policy, governing: (a) public health, safety,
morals and welfare, in general, and the control and abatement of nuisances, in
particular; (b) the granting of right of way permits and the conveyance of rights and
interests which provide for the use of or the entry upon public property (excluding any
Development Approvals or any rights of way necessary to implement the Project as
specified in the Development Approvals); or (c) the exercise of the power of eminent
domain.
LlX - posei id on^^ means Poseidon Resources (Channelside)
LLC, a Delaware l~mited liability company, its successors and assigns, and the
successors in interest to all or any part of Poseidon's interest in the Project.
WPower Plant" means the Encina Power Station owned and
operated by Cabrillo.
product Water" means desalinated seawater produced
from the Project.
&GX-"Project~~ means, generally, the Development of the
portion of the Property subject to the Leasehold contemplated by the Development Plan
as such Development Plan may be further defined, enhanced or modified pursuant to
the provisions of this Agreement, and specifically, the development of an integrated
reverse-osmosis desalination plant comprising: (1& the Plant Facilities; and (2M the
Appurtenant Facilities; provided, however that if the District elects to own or have a
goint pEowers aButhority own facilities pursuant to Section 9.2 of the Water Purchase
Agreement, such facilities shall be excluded from the definition of Project hereunder.
The Project is expected to have the capacity to produce and convey approximately 25
MGD to 55 MGD of Product Water, but the scope of the Project, including without
limitation the location of the Appurtenant Facilities, may be further defined, enhanced or
modified pursuant to the provisions of the Development Approvals.
1391 44ZL"PropertyY means the real property described on Exhibit
YW'nd - - - depwon Exhibit !:CEz to this Agreement.
Course.
44,W"RDA" means the Carlsbad Housing and Redevelopment
Commission.
-Reservations of Authority'~means the rights and
authoritv exce~ted from the assurances and riahts Drovided to Poseidon under this
Agreement and resewed to the City under seaions 3.6 through 3.6.4 of this Agreement.
1392 +AM-"Subsequent Development Approvals:: means all
Development~ovals required subsequent to the Agreement Date in connection with
development of the Project.
++34-Yiubsequent Development Exaction:: means any
reauirement of the Citv in connection with or ~ursuant to anv Subseauent Land Use
~e$ulation or ~ubseqbent Development ~ppkovals for the dedication of land, the
construction of im~rovements or Dublic facilities. or the Davment of fees in order to
lessen, offset, mitigate or compensate for the impacts of dkvelopment on the
environment or other public interests.
U-;aa"Subsequent Land Use Regulations!: means any Land
Use Regulations adopted and effective after the Agreement Date.
+&%-''Water Purchase Agreement" means that certain Water
Purchase Agreement, dated as of September 28, 2004, and entered into by and
between Poseidon and the District, as the same shall be amended from time to time.
1.2 Exhibits. The following documents are attached to, and by this
reference made a part of, this Agreement:
Exhibit "A - Form of Cabrillo Consent.
Exhibit K:B!: -- Legal Description of the Property.
Exhibit c:C:E -- Map depicting Property and its location.
Exhibit :ED:: -- Existing Development Approvals.
Exhibit ::E!: -- Existing Land Use Regulations.
oved PublW&ws.
2 GENERAL PROVISIONS.
2.1 Bindina Effect of Aareement. This Agreement runs with, and is
binding upon, the Leaseholdi& the Project-, Development of the
Project is authorized by the Development Approvals and, except as otherwise provided
for herein, shall be carried out only in accordance with the terms of the Development
Approvals. Notwithstanding anything in this Agreement to the contrary, this Agreement
shall only apply to the Development of the Project on the Property subject to the
Leasehold, and shall not apply to any other development of the Property.
2.2 Leaal Interest in Propetty. Poseidon represents and covenants that
Cabrillo is the owner of the fee simple title to the Property, and that, as of the
Agreement Date, Poseidon has a legal interest in the Property pursuant to the Lease.
2.3 Term. The term of this Aareement shall commence on the Effective Date
and shall continuefor a period of forty 740) years thereafter, unless the Agreement is
terminated or the term is modified or extended pursuant to the provisions of this
Agreement.
2.4 Sale, Transfer or Assianment.
2.4.1 Riaht to Assi~n. Poseidon shall have the right to sell, transfer or
assign this Agreement, in whole or in part, if and only if it meets the conditions set forth
in clauses (a) and (b) below:
#UThe sale, transfer or assignment is made in connection
with a sale, transfer or assignment, voluntarily or involuntarily, by operation of law or
otherwise, of all or a part of the Project and the prior written consent of the City is
obtained; or
fwfUThe sale, transfer or assignment is made in
connection with a sale, transfer or assignment, voluntarily or involuntarily, by operation
of law or otherwise, of all or a part of Poseidon's interest in the Leasehold and the
-prior written consent of the City is obtained; or
(%+&&The sale, transfer or assignment is made in
connection with a permitted assignment of the Water Purchase Agreement; and
@juThe proposed assignee has provided the City Manager with
an executed aareement. in a form reasonably acceptable to the City, providing therein - ~~
that such purcfiaser, transferee or assignee expres'sly and unconditionally assumes all
the duties and obliaations of Poseidon under this Agreement, including but not limited to
the financial obligaiions of Poseidon set forth herein.
OJny sale, transfer or assignment not madeb compliance
with the foregoing conditions shall constitute a default by Poseidon under this
Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to
execute the agreement required by Paragraph (b), above, of this Subsection 2.4.1, and
regardless of whether such purchaser, transferee or assignee has succeeded to
Poseidon's interest in the Project, the Property or the Leasehold voluntarily or
involuntarily, by operation of law or otherwise, the burdens of this Agreement shall be
binding upon such purchaser, transferee or assignee, but the benefits of this Agreement
shall not inure to such purchaser, transferee or assignee until and unless such
agreement is executed.
2.4.2 Condemnation. In reliance upon the terms, covenants and
conditions set forth in this Agreement, the City and (or) the RDA have (has) incurred
andlor will incur costs and expenses, including but not limited to costs and expenses to
finance or refinance the construction and installation of public improvements of benefit
to the Project, a portion of Ware expected to be reimbursed to the City as
mitigation fees pursuant to Section 4 of this Agreement. The parties intend that the right
to this mitiaation fee and the recordation of this Agreement reflecting the mitigation fee - obligation,-which runs with -- . , anithe project under
this Aareement, constitute a compensable interest in the Property held by the City
and1o;the RDA (the "CitylRDA property Interest"). If at any time-during the term of this
Agreement: (ia) all or any portion of Poseidon's interest in the Project or its interest in
the Lease or the real property underlying the Project (the "Poseidon Property Interest")
is taken under the power of eminent domain, or if there is a voluntary conveyance in lieu
of or under the threat of eminent domain, (iiM Poseidon is no longer obligated to pay
the mitigation fee pursuant to Section 4 of this Agreement and (&A the acquiring party
does not agree to pay such mitigation fee, the provisions of this Section 2.4.2 shall
apply.
&+If a court or jury renders a total, undivided award of
compensation in a condemnat~on action without apportioning the award between the
Poseidon Property Interest and the CitylRDA Property Interest, then the parties agree
(absent an agreement upon how the undivided sum should be shared), to request the
court to conduct a second phase of the trial to apportion the award between the City
andlor the RDA, on the one hand, and Poseidon, on the other hand, in accordance with
their respective property interests. In such a second phase, the City andlor RDA shall
present evidence of the value of theirits interest as described in subsection (63J
below, and Poseidon shall present evidence of the value of its interest according to the
method of valuation which it believes is most appropriate under the circumstances and
timing of the condemnation. If the amount of the undivided award is insufficient to
compensate the City andlor the RDA, on the one hand, and Poseidon, on the other
hand, based on each party's method of valuation, then it is the parties' intent that the
court shall equitably apportion the undivided award (without any preference or priority
being applied to the interest of either the City andlor the RDA, on the one hand, or
Poseidon, on the other hand).
&+If there is a voluntary conveyance by Poseidon of the
Poseidon Property Interest or any part thereof to a public or quasi-public agency or
entity (the "Condemning Agency") in lieu of or under threat by the Condemning Agency
to take the Poseidon Property Interest, or any portion thereof, by eminent domain
proceedings, Poseidon shall include in the voluntary sales price the present value
(calculated as of the date of the voluntary conveyance using as a discount rate the
Standard & Poor's (S&P) Composite Yield Table, prepared by the Bond Market
Association, showing the yield composites of AA-rated municipal bonds with 20-year
maturities (the "S&P Composite Bond Yield Index") for the month immediately
preceding the month in which the voluntary conveyance occurs) of the estimated
property taxes that the City, the District or the RDA would receive from the construction,
operation and ownership of the Project on the Property, from the date of the voluntary
conveyance to the end of the term of this Agreement, and within thirty (30) days of
receipt of the voluntary sales proceeds or the first installment thereof if there is an
installment sale, shall pay to the City andlor the RDA such present value (or in the case
of an installment sale a portion thereof based on the relative amount of such present
value and the aggregate voluntary sales price).
&J fsflf at any time during the term of this Agreement there is a
taking of an interest in the Project under the power of eminent domain, as more
particularly set forth in and subject to Section 2.4.2 (al) above, then, as between the
City andlor the RDA, on the one hand, and Poseidon, on the other hand, the parties
agree that the value of the CityIRDA Property Interest shall be calculated as follows:
the value shall be equal to the unamortized value of the total
cost and expenses incurred by the City andlor the RDA
pursuant to this Agreement, determined by calculating the
present value (calculated as of the date of the taking using
as a discount rate the S&P Composite Bond Yield Index for
the month immediately preceding the month in which the
taking occurs) of the estimated property taxes that the City,
the District or the RDA would receive from the construction,
operation and ownership of the Project on the Property, from
the date of the taking to the end of the term of this
Agreement.
&Within ten (10) days after receipt thereof, each party
shall give the other party copies of any notice received with respect to a proposed or pending taking under power of eminent domain of any portion of the Project or the real
property underlying the Project. Poseidon shall give the City and RDA written notice at
least ten (10) days prior to entering into an agreement voluntarily conveying all or any
portion of the Poseidon Property Interest in lieu of or under the threat of eminent
domain.
@+This Section 2.4.2 shall not apply to any Condemning
Agency that has an agreement with the City andlor the RDA with respect to the
payment of a mitigation fee (including that certain Agreement Memorializing Certain
Understandings and Establishing a Framework for Cooperation, dated as of April 28,
2005, by and between the San Diego County Water Authority, the City, the District and
the RDA).
(+If (ia) at any time during the term of this Agreement there
is a taking of an interest in the Project under the power of eminent domain (or by a
voluntary conveyance in lieu thereof), as more particularly set forth in Section 2.4.2 (a%
or (82) above, (iiu the Condemning Agency does not have an agreement with the City
andlor the RDA with respect to the payment of a mitigation fee, (a) the Condemning
Agency nonetheless pays some or all of the mitigation fee required by Section 4 of this
Agreement, (iv@ the City or the RDA has received payment for the CityIRDA Property
Interest pursuant to Section 2.4.2 (a1) or (ba above and (va in the case of an award
being apportioned pursuant to Section 2.4.2(alJ above Poseidon receives less than its
proposed value of its interest, then the City shall pay Poseidon (or shall cause the RDA
to pay to Poseidon) such installments of the mitigation fee received from the
Condemning Agency, within thirty (30) days of the date the City andlor RDA receives
such payments, until such time as Poseidon has received an amount equal to the
amount paid to the City andlor RDA pursuant to Section 2.4.2 (al) or (82) above set
forth.
2.4.3 Subseauent Assianrnent. Any subsequent sale, transfer or
assignment of this Agreement after an initial sale, transfer or assignment of this
Agreement shall be made only in accordance with and subject to the tens and
conditions of this Section.
2.5 Amendment or Cancellation of Aareement. This Agreement may be
amended or cancelled in whole or in oart onlv bv written consent of all ~arties in the
manner provided for in Code ~ection'65868.' ~6is provision shall not liinit any remedy
of the City or Poseidon as provided by this Agreement
2.6 Termination. The parties acknowledge and agree that, except for Section
2.7 hereof, this Agreement is intended to run with the Leasehold and the Project and to
be binding on successors and assigns of the parties hereto. Accordingly, even if
Poseidon is no longer the lessee under the Lease or the owner of the Project, this
Agreement shall not be deemed terminated, but shall continue in full force and effect
unless any of the following events occurs:
(a) Expiration of the term of this Agreement stated in Section 2.3;
(b) Entry of a final non-appealable judgment setting aside, voiding or
annulling the adoption of the Amendedpproval Ordinance;
(c) The adoption of a referendum measure repealing theAmended
Approval Ordinance; or
(d) The Project does not commence operation within ten (10) years
after the Agreement Date.
Termination of this Agreement shall not constitute termination of any other
land use entitlements approved for the Project or the portion of the Property subject to
the Leasehold. Upon the termination of this Agreement, no party shall have any further
right or obligation hereunder except with respect to any obligation to have been
performed prior to such termination or with respect to any default in the performance of
the provisions of this Agreement which has occurred prior to such termination or with
respect to any obligations which are specifically set forth as surviving the termination of
this Agreement.
2.7 Liability. The parties acknowledge and agree that Poseidon Resources
(Channelside) LLC shall have no further liability under this Agreement in the event of:
@ (+A sale, transfer or assignment of this Agreement pursuant to
Section 2.4.1;
&)-Acquisition of Poseidon's interest in the Project as described in
Section 2.4.2; or
& CmfPoseidon otherwise ceases the Development of the Project.
The release of liability in this Section 2.7 shall apply to Poseidon Resources
(Channelside) LLC only, and not to any successor in interest, by operation of law or
otherwise, to Poseidon Resources (Channelside) LLC.
2.8 Comoliance With Environmental Law. Poseidon shall operate and
maintain the Project inaccordance with all applicable state and federal environmental
laws, notwithstanding any exemption that Poseidon may otherwise have under
international trade rules.
3 DEVELOPMENT OF THE PROJECT.
3.1 Permitted Uses. The Project shall be used and developed only for the
purposes more particularly set forth in the Development Plan and for such other uses
that may be mutually agreed upon by the parties hereto in accordance with Subsequent
Development Approvals and the applicable provisions of the Code relating to the
amendment of development agreements. In particular, the permitted uses of the portion
of the Property subject to the Leasehold, the density and intensity of use, the maximum
height and size of proposed buildings, the production capacity of the Plant Facilities,
and provisions for reservation and dedication of land for public purposes shall be those
set forth in the Development Plan.
3.2 Vested Riahts. Unless amended or terminated in the manner specified in
this Agreement (and subject to the provisions of this Agreement), or unless Poseidon
otherwise agrees. Poseidon shall have the rights and benefits afforded by this
Agreement and this Agreement shall be enforceable by Poseidon and the City
notwithstandina the occurrence of any of the following after the Agreement Date: (a) any .. .
growth controlheasure or any development moratorhm, or (b) any change in the
applicable general or specific plans, zoning, subdivision or building regulations adopted
by the City which alter or amend the Development Approvals, or (c) the adoption of any
new or amended ordinance, resolution, rule, regulation, requirement or official policy,
other than any of the Police Power Regulations, that is inconsistent with, or more
burdensome on Poseidon than, the Development Approvals so as to prevent or
materially adversely affect development, financing, construction or operation in
accordance with the Development Approvals. Unless Poseidon othewise consents in
writing, this Section shall be construed to prohibit the City from applying to the Project
any development moratorium that is adopted specifically to prohibit the construction of
the Project, or as an interim measure pending contemplated General Plan, specific plan
or zoning changes, or as a general growth control management measure without other
bona fide reasons relating to unforeseeable emeraencv situations (as described in
Section 3.2.1, below). ~tk Project shall remain s6bjedt to all subsequent Development
Approvals required to complete the Project as contemplated by the Development Plan.
3.2.1 Exceptions to Vested Riahts. Notwithstandin any provision to
the contraty contained herein, and without limiting the generality of 8ection 3.6, the City
expressly reserves the right to apply to the Project: (a) Reservations of Authority made
under Section 3.6; (b) any of the Police Power Regulations; or (c) any development
moratorium, limitation on the delivery of City-provided utility services, or other generally
applicable emergency rule, regulation, law or ordinance (collectively an "Emergency
Measure") which meets all of the following criteria: (i) such Emergency Measure is
based on genuine health, safety and general welfare concerns (other than general
growth mana ement issues); (ii) such Emergency Measure arises out of an emergency
s~tuation, as eclared by the President of the United States or the Governor of
California, or as declared by the Mayor or City Council of the City of Carlsbad; and (iii)
such Emergency Measureis& based upon its terms or its effect as applied, does not
apply exclusively or primarily to the Project.
3.3 Effect of Aareement on Land Use Reaulations. Except as otherwise
provided under the terms of this Agreement, including without limitation Section 3.2.1
above, the rules, reaulations and official policies aovernina permitted uses of the portion . -
of the Property subject to the ~easehold,'the deniity and kiensity of use of the
of the Property subject to the Leasehold, the maximum height and size of proposed
buildings, and the design. improvement and construction standards and s~ecifications
applic<bbla to development of the Project shall be the Existing Land Use ~e~ulations. In
connection with any Subsequent Development Approval, the City shall exercise its
discretion in accordance with the Development plan, and as provided bv this Agreement
including without limitation Section 3.2.1 'hereof. he City shall accept for
review and action all applications for Subsequent Development Approvals, and such
applications shall be processed in the normal manner for processing such matters.
3.4 Timina of Development. The parties acknowledge that Poseidon cannot
at this time predict when or the rate at which the Project will be developed. Such
decisions depend upon numerous factors which are not within the control of Poseidon,
such as approvals from other aovernment aaencies, availabilitv of subsidies from . . ~etro~oliiin Water District of Southern caliibrnia or others,
6interest rates,
construction completion and other similar factors. sin& the ~alifornia Supreme Court
held in Pardee Construction Co. v. Citv of Camarillo (1984) 37 Cal.3d 465, that the
failure of the parties therein to provide for the timing of development resulted in a later
adopted initiative restricting the timing of development to prevail over such parties!:
agreement, it is the partieg intent to cure that deficiency by acknowledging and
providing that Poseidon shall have the right to develop the Project in such order and at
such rate and at such times as are more particularly described in the Water Purchase
Agreement, subject only to any additional or different timing requirements set forth in
the Development Plan.
3.5 Chanaes and Amendments. The parties acknowledge that refinement and
further development of the Project will require Subsequent Development Approvals and
may demonstrate that changes are appropriate and mutually desirable in the Existing
Development Approvals. If Poseidon finds that a change in the Existing Development
Approvals is necessary or appropriate, Poseidon shall apply for Subsequent
Development Approvals to effectuate such change and the City shall process and act
on such application in accordance with the Existing Land Use Regulations, except as
otherwise provided by this Agreement, including the Reservations of Authority. If
approved, any such change in the Existing Development Approvals shall be
incorporated herein as an addendum to Exhibit Cp," and may be further changed from
time to time as provided in this Section. Unless otherwise required by law, as
determined in the City!:s reasonable discretion, a change to the Existing Development
Approvals shall not require an amendment to this Agreement, provided such change
does not:
(a) Alter the permitted uses of the Property as a whole; or,
(b) lncrease the density or intensity of use of the Project as a whole;
or,
(c) lncrease the maximum height and size of permitted buildings; or,
(d) lncrease the production capacity of the Plant Facilities; or,
(e) Delete a requirement for the reservation or dedication of land for
public purposes within the Property as a whole; or,
(9 Constitute a project requiring a subsequent or supplemental
environmental impact report pursuant to Section 21 166 of the Public Resources Code
3.6 Reservations of Authoritv.
3.6.1 Limitations. Reservations and Exceptions. Notwithstanding any
other provision of this Agreement, the City shall have the following Reservations of
Authoritv with resoect to aoolication of Subseauent Land Use Reaulations to the . ,~ ~ Development of the ~rojedt:
(a) Processing fees and charges of every kind and nature
imposed by the City to cover the estimated andlor actual costs to the City of processing
applications for Development Approvals or for monitoring compliance with any
Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals
and any other matter of procedure.
(c) Regulations governing construction standards and
specifications including, without limitation, the City'ls Building Code, Plumbing Code,
Mechanical Code. Electrical Code, Fire Code and Grading Code.
(d) Regulations imposing Subsequent Development Exactions;
provided, however, that no such Subsequent Development Exaction shall be applicable
to development of the Project unless such Subsequent Development Exaction is applied
uniformly to development, either throughout the City or within the South Carlsbad
Redevelopment Area. No such Subsequent Development Exaction shall apply if its
application to the Project would have a material adverse effect on the development of
the Project for the uses and to the density or intensity of development set forth in the
Development Plan.
(e) Regulations which may be in conflict with the Development
Plan but which are reasonably necessary to protect the public health, safety, morals and
welfare. To the extent possible, any such regulations shall be applied and construed so
as to provide Poseidon with the rights and assurances provided under this Agreement.
(0 Regulations which are not in conflict with the Development
Plan; provided that such regulations do not have a material adverse effect on the
development of the Project. Any regulation, whether adopted by initiative or otherwise,
limiting the rate or timing of development of the Project shall be deemed to conflict with
the Development Plan and shall therefore not be applicable to the development of the
Project.
(g) Regulations which are in conflict with the Development Plan,
provided Poseidon has given written consent to the application of such regulations to
development of the ProjGct.
3.6.2 Subseauent Development A~provals. This Agreement shall not
prevent the City, in acting on Subsequent Development Approvals, from applying
Subsequent Land Use Regulations which do not conflict with the Development Plan
(provided that such regulations do not have a material adverse effect on the
development of the Project).
3.6.3 Modification or Suspension bv State or Federal Law. If State or
Federal laws or regulations, whether existing on or enacted after the Agreement Date,
prevent or preclude compliance with one or more of the provisions of this Agreement,
such provisions of this Agreement shall be modified or suspended as may be necessary
to comply with such State or Federal laws or regulations, provided, however, that this
Agreement shall remain in full force and effect to the extent it is not inconsistent with
such laws or regulations and to the extent such laws or regulations do not render such
remaining provisions impractical to enforce.
3.6.4 !n&nJ. The parties acknowledge and agree that the City is
restricted in its authority to limit its police power by contract and that the foregoing
limitations, reservations and exceptions are intended to reserve to the City all of its
police power which cannot be so limited, including without limitation the Police Power
Regulations. This Agreement shall be construed, contrary to its stated terms if
necessary, to reserve to the City all such power and authority which cannot be restricted
by contract.
3.7 Public Works. If Poseidon'is required by this Agreement to construct any
public works facilities which will be dedicated to the City or any other public agency
upon completion, and if required by applicable laws to do so, Poseidon shall perform
such work in the same manner and subject to the same requirements as would be
applicable to the City or such other public agency should it have undertaken such
construction.
3.8 Provision of Real Propertv Interests bv the City. In any instance where
Poseidon is required to construct any public improvement on land not owned by
Poseidon, Poseidon shall at its sole cost and expense provide or cause to be provided,
the real property interests necessary for the construction of such public improvements.
If Poseidon is unable, and upon a showing that it has exhausted all legal remedies
available to it, including without limitation the rights under Sections 1001 and 1002 of
the California Civil Code, to acquire the real property interests necessary for the
construction of such public improvements, and if so requested by Poseidon and upon
Poseidon's provision of adequate security for costs the City may reasonably incur, then:
(a) the City may negotiate the purchase of the necessary real properly interests to allow
Poseidon to construct the public improvements as required by this Agreement; and (b) if
necessary, in accordance with the procedures established by law, the matter may be
brought before the City Council to, in its discretion, make the findings necessary to use
its power of eminent domain to acquire such required real properly interests. Poseidon
shall pay all costs associated with such acquisition or condemnation proceedings. This
Section 3.8 is not intended by the parties to impose upon: (x) the City a duty to acquire
any land or otherwise exercise any power of eminent domain; or (y) upon Poseidon an
enforceable duty to acquire land or construct any public improvements on land not
owned by Poseidon, except to the extent that Poseidon elects to proceed with the
Development of the Project, and then only in accordance with valid conditions imposed
by the City upon the Development of the Project under applicable legal authority.
3.9 Reaulation bv Other Public Aaencies. The parties acknowledge that other
public agencies not within the control of the City possess authority to regulate aspects
of the development of the Project separately from or jointly with the City, and this
Agreement does not limit the authority of such other public agencies. If any revisions or
corrections of the Development Plan approved by the City shall be required by any
government official, agency, department or bureau having jurisdiction over the
develo~ment of the Project (except the City), Poseidon and the City shall cooperate in
reasonable efforts in complying with such requirements, to obtain waiver of such
requirements or to develop a mutually acceptable alternative.
3.1 0 Tentative Tract Map Extension. Notwithstanding the provisions of Section
66452.6 of the Code, no tentative subdivision map or tentative parcel map, heretofore or
hereafter approved in connection with development of the Project, shall be granted an
extension of time except in accordance with the Existing Land Use Regulations.
3.1 1 Poseidon Obliaation to Obtain and Maintain Insurance. Before
commencing any improvement or construction work pursuant to any City-approved
permit on the Project, Poseidon shall obtain and maintain the insurance as required
under Section 12-of the Water Purchase Agreement,
4 PUBLIC BENEFITS.
4.1 intent. The parties acknowledge and agree that this Agreement and the
development of the Project will result in substantial benefits for Poseidon, and the City.
4.2 Mitiaation Measures and Fees
4.2.1 Pavment: Waiver: No Contest. Poseidon and its successors in
interest shall pay a mitigation fee to the City equal to the property taxes that the City,
the District or the RDA would receive from the construction, ownership, use and
occupancy of the Project on the portion of the Property subject to the Leasehold;
provided, however, that this shall not apply to any successor which has an agreement
with the City with respect to the payment of a mitigation fee (including that certain
Agreement Memorializin Certain Understandin s and Establishin a Framework for
Cooperation, dated as o 9 April 28,2005, by and 9, etween the San 8 iego County Water
Authority, the City, the District and the RDA). Notwithstanding the foregoing, such
mitigation fee shall be waived so long as Poseidon or its successors in interest shall pay
and continue to pay, as and when due, propert taxes due under state law for the
construction, ownership, use and occupancy o ! the portion of the Property subject to the
Leasehold, and shall not claim a partial or full exemption from payment for such tax.
Neither Poseidon nor any of its successors in interest shall contest the payment of (a)
any property taxes validly imposed under applicable law or (b) the mitigation fee above
described; provided however that this shall not prevent Poseidon or its successors from
contesting that such taxes were not correctly calculated.
4.2.2 No Discriminatorv Fees. The City agrees that for the term of this
Agreement, so long as the City, the District or the RDA is paid property taxes from the
construction, ownership, use and occupancy of the Project on the portion of the
Property subject to the Leasehold, or the mitigation fee described in Section 4.2.1, the
City agrees that it will not levy, set or impose any taxes, fees, rates or charges in a
discriminatory manner against Poseidon. For example and not by way of limitation, so
long as the City, the District or the RDA is paid property taxes from the construction,
ownership, use and occupancy of the Project on the portion of the Property subject to
the Leasehold, or the mitigation fee described in Section 4.2.1, the City will not attempt
to collect from Poseidon a franchise fee, tax, or other monetary charge levied only on
businesses which produce or sell water. Further, if such discriminatory fee, tax or
charge is adopted by the City, Poseidon and its successors shall be exempt therefrom.
4.2.3 Continuation of Fees. Should all or any portion of the Property
become part of a city or another county, the fees payable pursuant to Section 4.2 shall
remain and still be payable to the City.
4.2.4 Security. The performance of the terms and conditions of
Sections 4.2.1 and 8.3 shall, upon the closing of the construction financing (the
"Financing"), for the Project, be secured by a deed of trust and a security agreement
encumbering the -Project. Each of such deed of trust and security
agreement shall be in a form reasonably acceptable to both parties. The City's rights
under each of the deed of trust and the security agreement shall subordinated to the
prior payment in full of the lenders providing the Financing pursuant to an agreement
with the City acceptable to such lenders.
4.2.5 Preliminaw Security. The performance of the terms and
conditions of Section 4.2.1 shall be secured by a deed of trust encumbering the
Project. The deed of trust shall be: (id in a form reasonably
mrties, (iiu be recorded within ninety (90) days after the parties
agree upon the form thereof and (mg) released upon the earlier of (x) a termination of
this Agreement pursuant to Section 2.6 or (y) a recordation of this Agreement pursuant
to Section 11.27(d).
4.2.6 Accountina Reauirements. With respect to any fee the City
receives or costs the City recovers pursuant to this Agreement, in general, or this
Section 4, in particular, the City shall comply with the requirements of Section 21.70.025
of the Carlsbad Municipal Code and Section 66006 m. of the Code.
4.3 Dedications. Poseidon acknowledges that one of the Development
Approvals other than this Agreement shall require Cabrillo, at-%- . . . . e of ~recise . . oermits. real property tath&& as described in
Res-
5 FINANCING OF APPURTENANT FACILITIES: OTHER PUBLIC
FI A CI S s
5.1 Appurtenant Facilities. The City will use commercially reasonable efforts
to cooperate with Poseidon in obtainina subsidies. arants or external fundina. includina " without limitation funds available unde;~ro~osition>0, to pay for the const&tion of
Appurtenant Facilities required as part of the Development Plan. The City also agrees
that, to the extent any such subsidies, grants or external funding is available to finance
such Appurtenant Facilities, the City may join with Poseidon in applying therefor.
Notwithstanding the foregoing, the parties acknowledge and agree that nothing
contained in this Agreement shall be construed as requiring the City or the City Council
of the City to join with Poseidon to apply for such subsidies, grants or external funding.
5.2 Other Public Financing. The City shall have no obligation to use public
financing of any kind, including, without limitation, a community facilities district, an
assessment district or other land-secured financing, for financing the construction,
maintenance or operation of public infrastructure or other improvements, including
without limitation roads or pipelines.
5.3 Use of Public Riahts of Way. Tbep
tb City shall provide without charge, and shall cause any governmental agency under - . . its control to provide without charge, Poseidon access to any -&&&
required for the construction or installation of the Appurtenant Facilities to deliver
Product Water to the District from the Project. The City's obligations under this Section . . 5.3 shall apply only to-- already in existence or planned
as of the Effective Date as described in Exhibit €u!&I
sat and shall not apply to any rights of way on, in, under,
about or in anv wav relating to Q .. .
-. Nothing set forth in this
Section 5.3 shall require the City to provide without charge, or to cause any
governmental agency under its control to provide without charge, access to any . . required wn for the Appurtenant Facilities to deliver
Product Water from the Project to any purchaser of Product Water other than the
District.
to the Dp . ., . .
6 ANNUAL REVIEW.
6.1 Periodic Review. The City-D'n"-'-" shall review the
extent of good faith substantial compliance by Poseidon with the terms of this
Agreement annually, on or before each anniversary of the Effective Date. Subject to the
notice and cure procedure set forth in Section 8.6, such a periodic review may result in
termination of this Agreement, provided a Default has been established under the terms
of this Agreement. Pursuant to Government Code Section 65865.1, as amended,
Poseidon shall have the duty to demonstrate its good faith compliance with the terms of
this Agreement at such review. The parties recognize that this Agreement and the
documents incorporated herein could be deemed to contain many requirements and
that evidence of each and every requirement would be a wasteful exercise of the
parties' resources. Accordingly, Poseidon shall be deemed to have satisfied its duty of
demonstration if it presents substantial evidence to the City of its good faith and
substantial compliance with the provisions of this Agreement, including any information,
concerning the numbers, types, densities, heights and sizes of structures completed
and of any reservations and dedications to the City. Any party may address any
requirement of this Agreement during the review. However, ten (10) days' written notice
of any requirement to be addressed shall be made by the requesting party. If at the
time of review an issue not previously identified in writing is required to be addressed,
the review at the request of either party shall be continued to afford sufficient time for
analysis and preparation. Poseidon shall pay the City's reasonable costs incurred in
conducting annual review in accordance with this Agreement.
6.2 Op~ortunitv to be& Heard. Upon written request to the City by Poseidon,
Poseidon shall be permitted an opportunity to be heard orally and/or in writing at a
noticed public hearing regarding its performance under this Agreement. Poseidon shall
be heard before the City Council at any required public hearing concerning a review of
action on the Agreement.
6.3 Information to &em Provided Poseidon. The City shall deposit in
the mail to Poseidon a copy of staff reports and related exhibits concerning contract
performance a minimum of ten (10) calendar days prior to any such review or action
upon this Agreement by the City Council.
7 INCORPORATION AND ANNEXATION.
7.1 m. If all or any portion of the Property subject to the Leasehold is
annexed to or otherwise becomes a part of another city or another county, the parties
intend that this Agreement shall survive and be binding upon such other jurisdiction.
7.2 lncor~oration. If at any time during the term of this Agreement, another
city is incorporated comprising all or any portion of the Property subject to the
Leasehold, the validity and effect of this Agreement shall be governed by Section
65865.3 of the Code.
7.3 Annexation. Poseidon and the City shall oppose, in accordance with the
procedures provided by law, the annexation to any other city of all or any portion of the
Property subject to the Leasehold unless both Poseidon and the City give written
consent to such annexation.
8 DEFAULT AND REMEDIES.
8.1 Remedies in General. The parties would not have entered into this
Agreement without the limits on damages set forth herein. Accordingly, the parties
agree that each of the parties hereto may pursue any remedy at law or equity available
for breach of any provision of this Agreement, subject to the following:
@)-(&The City and all persons acting on behalf of the City shall not be
liable in damages to Poseidon, or to any successor in interest, or to any other person.
Poseidon covenants not to sue for monetary damages or claim any monetary damages:
(+yfor any breach of this Agreement or for any cause of action
which arises out of this greement; or
-for taking, impairment or restriction of any property right or
interest as the result of or arising under or pursuant to this Agreement, but excluding
claims based upon applicable obligations of the City acting in its governmental capacity
and not as a party to this Agreement, and resewing the reserved rights and remedies
described in Sections 8.5 and 8.8; or
++&arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
f8f Poseidon shall not be liable in monetary damages to City, or to any
person acting on 9, be alf of City, and City covenants not to sue for damages or claim any
monetary damages:
(+Ufor failure to construct and operate the Project or any breach
of this Agreement or for any cause of action which arises out ofthis Agreement; or
#ping out of or connected with any dispute, controversy or
issue regarding the app cation or interpretation or effect of the provisions of this
Agreement;
++&&provided, however, that City reserves the right to sue for any
sums, including without limitation any sums due pursuant to Section 4 of this
Agreement, that are specifically required to be paid by Poseidon or its successors
pursuant to this Agreement, and provided further, however, the City also reserves the
rights and remedies described in Section %=
Nothing in this Section 8.1 shall be construed to limit or otherwise effect the remedies
available to Poseidon and the District under the Water Purchase Agreement.
8.2 Termination bv City. The City may terminate this Agreement upon a
termination of the Water Purchase Agreement by the District pursuant to Section 2.3.4
thereof.
8.3 Liquidated Damaaes for Poseidon's Failure to Amend This Aareement
U~on Relocation of Plant Facilities. Provided the Desalination Project has commenced
Commercial Operation (as that term is defined in the Water Purchase Agreement), if all
of or a material portion of the Plant Facilities are relocated to real properly that is not
encumbered by this Agreement, then Poseidon agrees to amend this Agreement in all
respects necessary to provide for this Agreement to encumber the real property to
which the Plant Facilities are so relocated. If Poseidon fails to do so and fails to pay the
mitigation fees payable pursuant to Section 4.2.1 of this Agreement. Poseidon shall be
in Default of this Agreement, and shall pay liquidated damages to the City in the initial
amount of Fifteen Million Dollars 1$15.000.000.00~. to com~ensate the Citv for a oortion
of the mitigation fees that would be payabie to Gction 4 of this Agreemint.
Such amount of liquidated damages shall be reduced by One Million Dollars
($1,000,000) for each year that poseidon pays the property taxes or mitigation fee
pursuant to Section 4.2.1 of this Agreement. By signing or initialing in the space
provided below, Poseidon and the City acknowledge and agree that it would be
impractical and extremelv difficult for the Citv to estimate its costs and losses as the
result of the failure to pay such mitigation fees, and that under the circumstances as
they exist as of the date of execution of this Agreement, the sum of the liquidated
damages set forth above is a reasonable estimate of costs that the City would incur in
the event of such failure.
Initials of Authorized Initials of Authorized
Signatory on Poseidon's Signatory on City's
Behalf Behalf
8.4 Specific Performance. The parties acknowledge that, except as provided
in Sections 8.l(b)(@= above and 8.8 below, money damages and remedies at
law generally are inadequate and that specific performance and other non-monetary
relief are the exclusive remedies for the enforcement of this Agreement and should be
available to all parties for the following reasons:
+Money damages are unavailable against City, or against
Poseidon except as provided herein;
@ ++Due to the size, nature and scope of the Project, it will not be
practical or possible to restore the Property sub'ect to the Leasehold to its C, preexisting condition once impleme~sAgreernent as begun After such
imolementation Poseidon mav be foreclosed from other choices it mav have had to
ut~iiz the prop& subject to the Leasehold and prov~de for other
bene-has invested s~anificant time and resources and oerformed
extensive planning and processing'bf the Project in agreeing to the terms of this
Agreement, and will be investing even more significant time and resources in
implementing the Project in reliance upon these terms, and it will not be possible to
determine the sum of money that would adequately compensate Poseidon for such
efforts. By the same token, City will have invested substantial time and resources and
will have permitted irremediable changes to the land and increased demands on the
surrounding infrastructure and will have committed, and will continue to commit, to
development in reliance upon the terms of this Agreement, and it would not be possible
to determine a sum of money which would adequately compensate City for such
undertakings. For this reason, the parties hereto agree that, except as otherwise
provided in this Agreement, if any party fails to carry out its obligations under this
Agreement, an injured party shall be entitled to nondamages remedies, including the
remedy of specific performance of this Agreement.
8.5 Release and Reservation. Except for non-damage remedies, including
the remedy of specific performance and judicial review as provided for in Section 8.4,
Poseidon, for itself, its successors and assignees, hereby releases the City, its officers,
agents and employees from any and all claims, demands, actions, or suits of any kind
or nature arising out of any liability, known or unknown, present or future, including, but
not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19
of the California Constitution, the Fifth Amendment of the United States Constitution, or
any other law or ordinance which seeks to impose any other liability or damage,
whatsoever, upon the City because it entered into this Agreement or because of the
terms of this Agreement; provided, however, that Poseidon reserves all of its otherwise
applicable rights and remedies in the event of an actual condemnation, inverse
condemnation or inappropriate taking, restriction or regulation by the City, which are
rights and remedies Poseidon otherwise has as a properly owner.
8.6 Termin aptAareement tion for Default of Poseidon. The City may
terminate this Aareement for anv Default bv Poseidon: ~rovided. however. . . this S-the city may terminate this
Agreement pursuant to this Sections
actions, if any, required by Poseidon to cu;;? such Default and, where the Default can be
cured, Poseidon has failed to take such actions and cure such Default within sixty (60)
davs after Pose~don's receiot of such notice or, in the event that such Default cannot be
cu;ed within such sixty (60)'day period but can be cured within a longer time, Poseidon
has failed to commence the actions necessary to cure such Default within such sixty
(60) day period and to diligently proceed to complete such actions and cure such
Default.
8.7 Termination of Aareement for Default of the City. Poseidon may terminate
this Agreement for any Default by the City only after providing written notice to the City
of Default setting forth the nature of the Default and the actions, if any, required by the
City to cure such Default and, where the Default can be cured, the City has failed to
take such actions and cure such Default within sixty (60) days after the City's receipt of
such notice or, in the event that such Default cannot be cured within such sixty (60) day
period but can be cured within a longer time, the City has failed to commence the
actions necessary to cure such Default within such sixty (60) day period and to diligently
proceed to complete such actions and cure such Default.
8.8 Ri~hts, Remedies for Nealiaence. Willful Misconduct. Nothing in this
Agreement shall be deemed to waive or limit any rights and remedies that the parties
ohelwise would have against the other in the absence of this Agreement with respect to
injury caused by the negligence or willful misconduct of a party.
27
9 THIRD PARTY LITIGATION: INDEMNIFICATION.
9.1 General Plan Litioation. The City has determined that this Agreement is
consistent with its General Plan and the Precise Development Plan, and that the
General Plan and the Precise Development Plan meet all requirements of law.
Poseidon has reviewed the General Plan and the Precise Development Plan and
concurs with the City's determination. The parties acknowledge that:
(a) In the future there may be litigation challenging the legality, validity
and adequacy of certain provisions of the General Plan or Precise Development Plan or
other, similar challenges; and,
(b) If successful, such challenges could delay or prevent the
performance of this Agreement and the development of the Project.
The City shall have no liability in damages under this Agreement for any
failure of the City to perform under this Agreement or the inability of Poseidon to
develop the Project as contemplated by the Development Plan a this Agreement as
the result of a judicial determination that on the Agreement Date, or at any time
thereafter, the General Plan or the Precise Development Plan, or portions thereof, are
invalid or inadequate or not in compliance with law.
9.2 Third Partv Litiaation Concernino Aoreement. In the event of any legal
action instituted by a third party (not a party to this Agreement) or any governmental
entii or official (other than the City or an official of the City), challenging the validity of
any provision of this Agreement or the other Development Approvals or any City action
relating thereto, the parties hereby agree to cooperate in defending said action;
provided, however Poseidon shall indemnify and hold harmless City from all litigation
exoenses. includina reasonable attomevs' fees and costs. arisina out of anv leaal action . -
instituted by such gird party (not a pa^ to this ~~reement), or iher governmental
entity or official (other than City or an official of the City) challenging the validity of any
proision of this~~reement, oi the other ~evelopment Approvals or any City action
relating thereto. City shall promptly notify Poseidon of any such action and City shall
cooperate in the defense thereof.
9.3 Breaches of Aareement: Pro~ertv Damaae. Bodilv lniurv or Death. In
addition to the provisions of Se4ew~9.2 above, Poseidon shall
save, indemnify, hold harmless and defend, at its expense, including attorneys' fees, the
City, ' -the Zity
Indesnses or liability
whatsoever, arising out of or based upon any breach or alleged breach of this
Agreement by Poseidon . Poseidon shall not, however, be required to indemnify the
City lndemnitees with respect to any loss, costs, fees, expenses or liability arising
through the gross negligence or willful misconduct of the City.
9.4 Indemnification Procedure. In any situation in which Poseidon is required
to indemnify the pursuant to this Agreement, as a condition
thereto the stty- shall give Poseidon reasonably prompt notice of any
matter for which indemnification is sought hereunder. The S4y-a shall
cooperate in the defense of such claim (and pending assumption of defense, the City, in
its good faith judgment, may take such steps to defend itself against such claim as it
deems appropriate to protect its interests). Poseidon shall pay the stty-
&g&'s reasonable out-of-pocket expenses incurred in connection with such
cooperation and such steps taken to defend aself pending Poseidon's assumption of
defense. Poseidon shall keep the City- reasonably informed as to the
status of the defense of such claim. After notice from Poseidon to the Qtyh&mni&d
&&of the assumption, and the defense of a claim, Poseidon shall not be liable to the
Stty- for any legal or other expenses subsequently incurred by the
Stty- in connection with the defense thereof other than those
expenses referred to above. Poseidon, at its own expense and through counsel chosen
by it (which counsel shall be reasonably acceptable to the Wm), shall
defend any such claim; provided, however, that if, in the Stty-s
reasonable judgment at any time, either a conflict of interest arises between Poseidon
and the SttytndemMed Party or if there are defenses which are different from or in
addition to those available to Poseidon andlor the Sttyw and the
representation of both parties by the same counsel would be inappropriate, then in each
such case the shall have the right to employ a separate law firm
in each a~~licable iurisdiction (if necessarv) (!?!Separate CounseP!!), to rewesent the . . ,, .- . GI&-* in any action or group of related actions (wxich firm or firms shall
be reasonably acceptable to Poseidon), and in that event: (a) the reasonable fees and
expenses of such separate Counsel shall be paid by Poseidon (it being understood,
however, that Poseidon shall not be liable for the expenses of more than one Separate
Counsel with respect to any claim (even if against multiple ilndemnified Parties)); and
(b) Poseidon shall have the right to conduct its own defense in respect of such claim. If
Poseidon does not defend against a claim, the City- may defend,
compromise and settle such claim and shall be entitled to indemnification hereunder (to
the extent ~ermitted bv this Agreement). Notwithstanding the foregoing, Poseidon shall - not, witho"t the C2ty-s prior written consent (whkh shall not be
unreasonably withheld, conditioned or delayed), settle or compromise any claim or
consent to the entry of any judgment unless: (x) there is no finding or admission of any
violation of law or any violation of the rights of any person and no effect on any other
claims that may be made against the stcyw; and (y) the sole relief
provided is monetary damages that are paid in full by Poseidon.
9.5 Survival. The provisions of this Sections 9.1 through . . 9.4, inclusive, shall
survive the termination of this Agreeinent or the
Aareement.
10 MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit
Poseidon, in any manner, at pose id on!:^ sole discretion, from encumbering the Project
or any portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Project. The City
acknowledges that the lenders providing such financing may require certain Agreement
interpretations and modifications and agrees upon request, from time to time, to meet
with Poseidon and representatives of such lenders to negotiate in good faith any such
request for interpretation or modification. The City will not unreasonably withhold its
consent to any such requested interpretation or modification provided such
interpretation or modification is consistent with the intent and purposes of this
Agreement. Any Mortgagee of the Project shall be entitled to the following rights and
privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on
the Project made in good faith and for value, unless otherwise required by law.
(b) Any Mortgagee of any mort age or deed of trust encumbering the
Project, or any part thereof, which has submitte j a request in writing to the City in the
manner specified herein for giving notices, shall be entitled to receive written notification
from the City of any Default by Poseidon in the performance of pose id on!:^ obli ations
under this Agreement concurrently with the receipt of any such notice by ~oseijon.
(c) The Mortgagee shall have the right, but not the obligation, to cure a
Default during the remaining cure period allowed Poseidon under this Agreement.
(d) Subject to compliance with the provisions of Section 2.4.l(b) of this
Agreement, any Mortgagee who comes into possession of the Project, or any part
thereof. Dursuant to foreclosure of the mortaaae or deed of trust. or deed in l~eu of such
foreclosure, shall take the Project, or part tKeeikof, subject to-
ed to thebenefit the terms of this Agreement.
11 MISCELLANEOUS PROVISIONS.
11.1 Recordation of Aareement. As more particularly set forth below in Section
11.27, this Agreement and any amendment or cancellation thereof shall be recorded - . . against the ~kasebkl by
the Clerk of the City Council filing a copy of this Agreement or any such amendment
with the San Diego County Recorder within the period required by Section 65868.5 of
the Code.
11.2 Further Actions. Each of the parties shall cooperate with and provide
reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the
conditions of this Agreement. At any time and from time to time after the date hereof,
each Party agrees to take such actions and to execute and deliver such documents as
each other Party may reasonably request to effectuate the purposes of this Agreement.
11.3 Amendment. Except as otherwise provided in this Agreement, neither this
Agreement nor any provision hereof may be waived, modified, amended, discharged, or
terminated except by an instrument in writing signed by the party against which the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such writing.
11.4 Entire Acireement. This Agreement and the Water Purchase Agreement
constitute the entire understanding among the parties with respect to the matters set
forth herein, and supersede all prior or contemporaneous understandings or
agreements among the parties with respect to the subject matter hereof, whether oral or
written.
11.5 Notices. As used in this Agreement, ZEnoticg: includes, but is not limited
to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or permitted
hereunder. Any notice, approval, consent, waiver or other communication required or
permitted to be given or to be sewed upon any party in connection with this Agreement
shall be in writing. Such notice shall be personally sewed, sent by facsimile, sent
prepaid by registered or certified mail with return receipt requested, or sent by reputable
overnight delivery sewice, such as Federal Express, and shall be deemed given: (a) if
personally sewed, when delivered to the party to whom such notice is addressed; (b) if
given by facsimile, when sent, provided that the confirmation sheet from the sending fax
machine confirms that the total number of pages were successfully transmitted; (c) if
given by prepaid or certified mail with return receipt requested, on the date of execution
of the return receipt; or (d) if sent by reputable overnight delivery sewice, such as
Federal Express, when received. Such notices shall be addressed to the party to whom
such notice is to be given at the address below specified. Either party may, by notice
given at any time and sent in accordance with this Section, require subsequent notices
to be given to another person or entity, whether a party or an officer or representative of
a party, or to a different address, or both. Notices given before actual receipt of notice
of change shall not be invalidated by the change.
if to CITY, to:
If to Porcidon. to:
City of Carlsbad
IZOOCarlrbad Village Drive
Carlsbad. CA 92008
Am: City Manager
Fax No. (760) 729-9461
Poscidon Rcsovrcss (Channelside) LLC
501 West Broadway. Suite 848w
San Diego. CA. 92101
Am: President
Fax No.:. (619) 595-7892
11.6 -. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of California, without giving
effect to any choice-of-law or conflicts-of-laws rule or principle that would result in the
application of any other laws.
11.7 Headinas. Headings, titles and captions are for convenience only and
shall not constitute a portion of this Agreement or be used for the interpretation thereof.
11.8 Cumulative Ri~hts: Waiver. The rights created under this Agreement, or
by law or equity, shall be cumulative and may be exercised at any time and from time to
time. No failure by any party to exercise, and no delay or omission by any party in
exercising any rights, shall be construed or deemed to be a waiver thereof, nor shall any
single or partial exercise by any party preclude any other or future exercise thereof or
the exercise of any other right. Any waiver of any provision or of any breach of any
provision of this Agreement must be in writing, thee or its $4 II .
be us-and any waiver by any party of any breach of any
orovision of this Aareement shall not o~erate as or be construed to be a waiver of anv
kther breach of thgt provision or of an); breach of any other provision of this ~greemint.
The failure of any party to insist upon strict adherence to any term of this Agreement on
one or more occasions shall not be considered or construed or deemed a waiver of any
provision or any breach of any provision of this Agreement or deprive that party of the
right thereafter to insist upon strict adherence to that term or provision or any other term
or provision of this Agreement.
11.9 Liberal Construction. This Agreement constitutes a fully-negotiated
agreement among commercially sophisticated parties, each assisted by legal counsel,
and the terms of this Agreement shall not be construed or interpreted for or against any
party hereto because that party or its legal representative drafled or prepared such
provision.
11.10 Severability. If any provision of this Agreement shall be ruled invalid,
illegal or unenforceable, then the parties shall: (a) promptly negotiate a substitute for
such provision which shall, to the greatest extent legally permissible, therein effect the
intent of the parties in such invalid, illegal or unenforceable provision; and (b) negotiate
such changes in, substitutions for or additions to the remaining provisions of this
Agreement as may be necessary in addition to and in conjunction with clause (a) above
to give effect to the intent of the parties without the invalid, illegal or unenforceable
provision. To the extent that the parties are able to negotiate such changes,
substitutions or additions as set forth in the preceding sentence, and the intent of the
parties with respect to the essential terms of the Agreement may be carried out without
the invalid, illegal or unenforceable provision, then the balance of this Agreement shall
not be affected, and this Agreement shall be construed and enforced as if such invalid,
illegal or unenforceable provision did not exist.
11 .I 1 Good Faith and Fair Dealinq. The parties hereto acknowledge and agree
that the performances required by the provisions of this Agreement shall be undertaken
in good faith, and with all parties dealing fairly with one another.
11.12 No Third Pam/ Beneficiaries. Except as provided in- & this Section 11.12, this Agreement does not create, and shall not be construed to
create, any rights enforceable by any person, partnership, corporation, joint venture,
limited liability company or other form of organization or association of any kind that is
not a party to this Agreement. Notwithstanding the foregoing, the RDA and the District
are intended beneficiaries of this Agreement, with the right to enforce this Agreement in
accordance with its terms.
11.13 Execution in Counter~arts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The signature page of any counterpart may be
detached therefrom without impairing the legal effect of the signature(s) thereon,
provided such signature page is attached to any other counterpart identical thereto
except for having an additional signature page executed by the other party.
11 .I4 Time of the Essence. Time is of the essence of each and every provision
of this Agreement. Unless business days are expressly provided for, all references to
"'dayg: herein shall refer to consecutive calendar days. If any date or time period
Sovided for in this Agreement is or ends on a Saturday, Sunday or federal, state or
legal holiday, then such date shall automatically be extended to the next day which is
not a Saturday, Sunday or federal, state or legal holiday.
11.15 Number. Gender. Where a word or phrase is defined in this Agreement,
its other grammatical forms have a corresponding meaning. As used herein, and as the
circumstances require, the plural term shall include the singular, the singular shall
include the plural, the neuter term shall include the masculine and feminine genders, the
masculine term shall include the neuter and the feminine genders, and the feminine
term shall include the neuter and the masculine genders.
11.16 relations hi^. Nothing in this Agreement shall be deemed to constitute
either party a partner, agent or legal representative of the other party, neither party is
acting as the agent of the other in any respect hereunder, each party is an independent
contracting entity with respect to the terms, covenants and conditions contained in this
Agreement, and no partnership, joint venture or other association of any kind is formed
by this Agreement. No liability or benefits, such as workers': compensation, pension
rights or liabilities, other provisions or liabilities arising out of or related to a contract for
hire or employerlemployee relationship, shall arise or accrue to any party!:s agent or
employee as a result of this Agreement or its performance.
11.17 Joint and Several Obliaations. If at any time during the term of this
Agreement the Project is owned, in whole or in part, by more than one owner, all
obligations of such owners under this Agreement shall be joint and several, and the
Default of any such owner shall be the Default of all such owners.
11.18 Force Maieure. 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
&an event of Force Majeure. ?:Force Majeurg: as used herein shall have the
meaning more particularly set forth in Section 17 of the Water Purchase Agreement.
11.19 Mutual Covenants. The covenants contained herein are mutual covenants
and also constitute conditions to the concurrent or subseauent oefformance bv the oartv --~~-~ ~ ~ ~ ~ ~ .- . .
benefited thereby of the covenants to be performed hereunder by such benefiied party.
11.20 Successors in Interest. The burdens of this Agreement shall be binding
upon all successors in interest to the parties to this Agreemen-
.. . . .
bo f
this Agreement, the benefits of this Agreement shall inure to the successors in interest
to the parties to this Agreement. Subject to the receipt of any consent of Cabrillo
required under the Lease, all provisions of this Agreement shall be enforceable as
esuitable servitudes and constitute covenants running with the Leasehold for a time
Wementiff
-. Subject to the receipt of any consent of Cabrillo required under the Lease,
each covenant to do or refrain from doing some act hereunder with regard to
development of the Project and the Leasehold : (a& is for the benefit of and is a burden
upon every portion of the Project and the Property subject to the Leasehold,fBfOrthe
P Uu) . runs with the Project and the p&ew%eProperty subject
to the Leasehold and each portion thereof- . . ; and, (eg) is
binding upon each party and each successor in interest during ownership of the Project
or the Leasehold or any portion thereof-. . .
11.21 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by a party hereto for the purpose of enforcing, construing or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of San Diego, State of California, and the parties hereto
waive all provisions of law providing for the filing, removal or change of venue to any
other court.
11.22 Proiect as a Private Undertakinq. The parties specifically understand and
agree that the development of the Project is a private development. The only
relationship between the City and Poseidon is that of a government entity regulating the
development of a private Project and the lessee, grantee and developer of such Project.
11.23 Eminent Domain. No provision of this Agreement shall be construed to
limit, restrict or require the exercise by the City of its power of eminent domain.
11.24 Aaent for Service of Process. Poseidon shall designate and maintain
Corporation Service Company (or a similar national company) as its agent for the
purpose of service of process in any court action arising out of or based upon this
Agreement, and the delivery to such agent of a copy of any process in any such action
shall constitute valid service upon Poseidon. If for any reason service of such process
upon such agent is not feasible, then in such event Poseidon may be personally served
with such process out of this County and such service shall constitute valid service upon
Poseidon.
11.25 Authoritv to Execute. Each party warrants and represents that this
Agreement has been duly authorized by such party. Each party shall deliver to the
other party copies of such resolutions, certificates or written assurances evidencing
authorization to execute, deliver and perform this Agreement.
11.26 Commission ADD~OV~~ Reauired. This Agreement shall not become
effective unless and until it is approved by the Commission, as required by Code
Section 65869.
11.27 A~~roval Procedure. The following procedure shall govern
approval of this Agreement:
(a) Prior to City Council consideration of this Agreement, Poseidon
shall execute this Agreement; provided, however, that Poseidon shall have the right
prior to the Agreement Date of this Agreement to withdraw its execution based upon the
terms and conditions contained in the Development Approvals, in which case this
Agreement shall be of no force or effect.
(b) City Council shall undertake all necessary proceedings to consider
this Agreement. Approval by the City shall be by adoption of the &.mode&Approval
Ordinance.
(c) Following adoption of theh,w.ui& Approval Ordinance, the
Mayor shall execute this Agreement on behalf of the City, and take such steps as may
be required to obtain Commission approval as described above in Section 11.26.
(d) This Agreement shall be effective on the Effective Date. As
provided in Code Section 65868.5, the City shall cause a copy of this Agreement to be
thJent 7 . with the Recorder within ten (10) days fol owlng the Effective Date. Poseidon
shall pay any recording costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year below set forth.
Dated: , mz?!B "CIN"
CITY OF CARLSBAD
Name:
Title:
By:
City Clerk
(SEAL)
FD ON NFXT PAGFJ
Dated: , mQ% "POSEIDON"
Poseidon (Channelside) LLC, a
Delaware limited liability company
By:
Name:
Title:
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO 1
On , before me,
, personally appeared
, proved to me on
the basis of satisfactow evidence) to be the ~erson(s) whose name@.) islare subscribed
to the within instrumeni and acknowledged to me that heisheithey executed the same in
hislherltheir authorized capacity(ies), and that by hislherltheir signature(s) on the
instrument the person(s) or theentity upon behalf of which the person(s) acted,
executed the instrument.
der PFNALTY OF PFRJ
Witness my hand and official seal.
Signature
STATE OF CALIFORNIA 1
COUNTY OF SAN DlEGO 1
On , before me, -, personally appeared 7 proved to me on
the basis of satisfactory evidence) to be the person@) whose name(s) islare subscribed
to the within instrument and acknowledged to me that helshelthey executed the same in
hislherltheir authorized capacity(ies), and that by hislherltheir signature@) on the
instrument the person(s) or the entity upon behalf of which the person@) acted,
executed the instrument.
Witness my hand and official seal.
Signature
Exhibit "A"
CONSENT OF PROPERTY OWNER
Cabrillo Power I, LLC, a Delaware limited liability company ("Cabrillo"), is the
owner of the Property that is the subject of the Precise Development Plan !&---an9
DA 05-02 . . . . (Planning
No. 6Q9Q). Poseidon Resources (Channelside) LLC, a Delaware limited
liability company ("Poseidon"), currently is the lessee of the Property under the terms
and conditions of that certain Ground Lease and Easement Agreement, dated July 11,
2003, by and between Cabrillo and Poseidon:-
2009. Cabrillo hereby consents to the entering into of that
certain Development Agreement between the City of Carlsbad and Poseidon, to which
this Consent is attached and which affects . 9. the
Property.
Dated: "Cabrillo"
CABRILLO POWER I, LLC, a Delaware limited
liability company
By:
Name:
Title:
STATE OF CALIFORNIA }
1 ss
COUNTY OF SAN DlEGO }
On , before me.
personally appeared v-
@YJJQ proved to me on the basis of satisfactory evidence to be the person@) whose
name(@ islare subscribed to the within instrument and acknowledged to me that
helshetthey executed the same in hislherltheir authorized capacity(ies), and that by
hislherltheir signature(s) on the instrument the person@) or the entity upon behalf of
which the person@) acted, executed the instrument.
r PFNAI TY OF PFRJURY
Witness my hand and official seal.
Signature
EXRIBIT 'A*'
LEGAL DESCRIPTION
FOR
THE LEASED PREMISES
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALSPORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001-
0789060, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOSS SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 173501 THENCE ALONG SAID WESTERLY LINE, NORTH 22*30f13"
WEST, 1319.08 FEET; THENCE LEAVING SAID WESTEWdY LINE AT RIGHT
ANGLES, SOUTH 67°29'47" WEST, 50.72 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 67"31121" WEST, 229.72 FEET; THENCE NORTH
4OQ03'53" WEST, 199.13 FEET; THENCE SOUTH 66'28' 49" WEST, 45.93
FEETi THENCE NORTH 22'28' 46" WEST, 507.13 FEET; THENCE NORTH
67'31'14'' EAST, 338.82 FEET; THENCE SOUTH 22'37'35" EAST, 536.65
FEE1'; THENCE SOUTH 20°08'20" EAST, 115.20 FEET; THENCE SOUTH
2Z037'35" EAST, 124.38 FEET 1'0. THE TRUE POINl! OF BEQINNING.
ATTACHED IIERETO IS A PLAT LABELED EXHIBIT 'A-1'' AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GHID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD-
03, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 3.703 ACRES, MORE OR LESS
GARY L. flUS rjR,,E'~"'
L.S. 7019 - - . ..
EXPIRATION DATE 6/30/2010
EXHIBIT 'C*' I
LEOAL DESCRIPTION
POR
WATBR PLANT INTAKIC/DISCHARGE EASE~NT AREA I I
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CATIIFORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. ' 823 AS DESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- !
0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: !
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RTGHT-
OF-WAY OF 'THE ATCHISON TOPEKA AND SAN'TA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NOHTH 22"30113"
WEST, 1490.22 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTI1
66'28'49" WEST, 340.71 FEET TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 66°28'49" WEST, 439.94 FEET TO THE BEGINNING OF A TANGENT
CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 70.00 FEET;
THENCE WESTERLY, ALONG THE ARC OF SAII) CURVE, THROUGH A CENTRAL
ANGLE OF 81°26'18", 99.50 FEET; THENCE TANGENT TO SAID CURVE, NORTI4
32'04'53'' WEST, 93.96 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OE' 45.00 FEET; THENCE
NORTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF
10°50'13", 8.51 YEET; THENCE TANGENT TO SAID CURVE, NORTH 42'55'06"
WEST, 37.86 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
SOIJTHWESTERLY AND HAVING A RADIUS OP 52.50 FEET; THENCE WESTERLY,
ALONG THE ARC OC' SAID CURVE, THRO[IGH A CENTRAL ANGLE OF 69'07'13",
63.33 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67'57'41" WEST,
325.70 FEET TO A POINT ON THE EASTERLY LINE OF CARLSBADBOULEVARD
(FORMERLY XI-SD-23), BElNG 100.00 FEET WIDE AS SHOWN ON RECORD OF
SURVEY NO. 1.7350; 'THENCE NORTll 24"07'36" WEST, 41.25 FEET; THENCE
LEAVING SAID EASTERLY LINE, NORTH 34'28'03'' EAST. 161.11 FEET;
THENCE NOHTH 67'05'54" EAST, 142.26 FEET: THENCE SOUTH '16°03'09"
EAST, '74.70 VEET; THENCE SOUTH 67'18'36" EAST, 1.74.25 FEE'P THENCE
SOUIH 22'23' 45" EAST, 151.01 FEET; THENCE NORTH 66'31' 12" EAST,
403.04 FEET; THENCE SOUTM 22°28'46" ERST, 17.56 FEET; THENCE NORTH
66°20'49" EAST, 45.93 FEET; THENCE SOUTH 40'03'53" EAST, 26.08 FEET
TO THE TRUE POINT OF BEGINNXNF.
ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'c-l*' AND BY THTS i
RETI3RENCE MADE A PART THEREOF. ALL IIISTANCES SHOWN HEREON ARE
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. AJ;L BEARINGS SHOWN IiEREON ARE GRID
BASED UPON CAT,IFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- !
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 1.670 ACRES, MORE OR LESS
. -. GARY I,. HUS DATE
L.S. 7019
EXPIRATION DATE 6/30/2010
EXHIBIT 'D*'
LEGAL DESCRIPTION
FOR
CONNECTION EASEMENT AREA
THAT PORTION OY LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001-
0709068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: i
COMMENCING AT 'I'HE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AN!) SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 1.7350; THENCE ALONG SAID WESTERLY LINE, NORTH 22'30'13"
WEST, 1490.22 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTH
66'28'49" WEST, 340.71 FEET; THENCE SOUTH 66'28'49'' WEST, 439.94
FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY
AND HAVING A RADIUS OF '10.00 FEET; THENCE WESTERLY, ALONG THE ARC
OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 81°26'18", 99.50 FEET;
THENCE TANGENT TO SAID CURVE, NORTH 32'04'53'' WEST, 93.96 FEET TO
THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING
A RADTUS OF 45.00 FEET; THENCE NORTHERLY, ALONG THE ARC OF SAID
CURVE, THROUGI.1 A CENTRAT, ANGLE OF 10°50'13", 0.51 FEET; THENCE
TANGENT TO SAID CURVE, NORTH 42'55'06'' WEST, 37.86 FEET TO THE
RHGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTEllLY AND HAVING A
RADIUS OF 52.50 P'EET; THENCE WESTERLY, ALONG TllE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLF, OF 69°07'13", 63.33 FELT; THENCE
TANGENT TO SAID CURVE, SOUTH '67°57'41" WEST, 122.13 FEET TO THE
TRUE POINT OP BEGINNXNG; THENCE SOUTtI 2Z010'36" EAST, 202.81 FEET;
TllENCE SOUTH 67'41' 24" WEST, 37.42 FEET; THENCE NORTH 22'18' 36"
WEST, 14.00 FEET; THENCE NORTH 67'41'24'' FAST, 23.42 FEET; THENCE
NORTH 22'18' 36" WEST, 188.07 FEET; THENCE NORTH 67'57' 41" EAST,
14.00 FEET TO THE TRUE POINT OF BEGINNING. .
ATTACHED HERETO IS A PLAT IsABELED EXHIBIT 'D-I*' &ND BY !THIS
REFERENCE MADE A PART 'THEREOF. ALL DISTANCES SHOWN IiEREON ARE
GHID DlSTANCES. TO COMPUTE GROUND DJSTANCES, DIVIDE GRID
DISTANCES BY 0.999363440. AT.1.. BEARINGS SHOWN HEREON ARE GRID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMEN'P, NAD-
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 0.073 ACRES, MORE OR LESS
, . . - ,- GARY L. HUS DATE
L.S. 7019
EXPIRAl'ION DA'PE 6/30/2010
EXHIBIT 'E*'
LEGAL DESCRIPTION
FOR
PRODUCT WATER PIPELINE EASEMENT AREA
THAT PORTION OF LOT "II" OF RANCHO AGUA HED1ONI)A TN 'THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
PARTITION MAP THEllEOF NO. 623 AS 1)ESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001-
0789068, PARCEI, 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY COllNEH OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL
4, NORTH 44"29'52" WEST, 52.55 FEET; THENCE NORTH 82'40'44" WEST,
56.01 FEET; THENCE LEAVING SAID SOUTHERLY LINE, NORTH 19O02'22"
WEST, 79.55 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 553.00 FEET, A RADIAL LINE TO
SAID POIN'P BEARS NORTH 31°3'1'17" EAST; THENCE WESTERLY, ALONG THE
ARC OF' SAID CURVE, THROUGH A CENTRAL ANGLE OF 11.'46'22", 113.63
FEET; THENCE NORTH 67°28'02" EAST, 03.57 FEET; THENCE NORTH
09'39'03" WEST, 32.20 FEET; THENCE NORTH 22'32'58" WEST, , 186,83
FEET; THENCE NORTH 2Y050' 25'' WEST, 434.98 I.'EE8T; THENCE NORTH
3.6°02.'06t' WEST, 234.09 FEET; THENCE NORTI-I 14*45'12" WEST, 147.72
FEET; THENCE NORTH 22e37a35" WEST, 171.35 E'EET; THENCE NORTH
20°08'20" WEST, 115.20 FEET; THENCE NORTH 22'37'35" WEST, 536.65
FEET; THENCE NOR'l'H 67O31.'14" EAST, 15.00 FEET; THENCE SOUTH
22O37'35" EAST, 829.42 FEET; THENCE SOUTH 23'07' 35'' EAST, 791.70
FEET TO A POINT ON SAID WESTERLY LINE OF THE A'PCHISON TOPEKA AND
SANTA FE PAILROAD; THENCE ALONG SAID WESTERLY LINE, SOUTH 22'30'13"
EAST, 252.87 FEET; THENCE I.,EAVING SAID WESTTSRLY LINE NORTH
67*29'4'7" k:AS'I', 1.00.00 FEET TO A P0:INT ON THE EASTERLY LINE Of.' SAID
ATCI.I:[SON a~~~?~~ AND SANTA FE KAII,ROAD; THENCE ALONG SA:II) I.:ASTERLY
LINE, SOUTll 220301 13" EAST, 69.2'7 FEI;:'P; ~I~HENCE LEAVING SAID
EASTERLY LINI.2, SOUTH 67'29' 47" WEST, 100.00 FEET TO SAID WESTERLY
LINE OF TI.IE ATCI-IISON TOI?EKA AND SANTA FE RAIIaROAI); THENCE ALONG
SAID WESTERLY I.,INI.: SOUTH 22'30'13'' EAST, 1.51. 99 FEET THE POINT OF
BEGINNING.
ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'E-lC' AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD-
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 3.036 ACRES, MORE OR LESS.
- - - GARY L. HUS DATE
L.S. 7019
EXPIRATION DATE 6/30/2010
I
EXHIBIT 'B*'
LEGAL DESCRIPTION
FOR
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIEQRNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 023 AS DESCRIBED IN CERTI!?ICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001.-
0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
OEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22'30'13''
WEST, 1692.10 FEET TO THE TRUE POIN2 OB BEGINNLNO, SAID POINT
BEING ON THE SOUTHERLY LINE OF THAT CERTAIN "PIPE LINE LICENSE"
DATED MARCH 1, 1971,. BY AND BETWEEN THE ATCHISON, TOPEKA AND SANTA
FE RAJLWAY COMPANY AND SAN I)IEGO GAS AND ELECTRIC COMPANY, WHICH
LICENSE GRANTS THE RIGHT TO CONSTRUCT AND MAINTAIN A TUNNEL, PIPE
AND PEDESTRIAN WALKWAY AND VARIOUS SIZES OF CARRIER PIPE: THENCE
ALONG SAID SOUTHERLY LINE, SOUTH 67°38'26" EAST, 54.52 FEET; THENCE
LEAVING SAID SOUTHERLY LINE, NORTH 22°37'35" WEST, 9.00 TO A POINT
ON THE NOHTliERLY LINE OF SAID "PIPE LINE LICENSE"; THENCE ALONG
SAID NORTHERLY' LINE, NORTH 67O38 '26" EAST, 183.15 FEET; THENCE
LEAVING SAID NORTHERLY LINE, NORTH 22'21' 34" WEST, 10 .O1 FEET;
THENCE NORTH 67"3R826" EAST, 35.00 FEET; THENCE SOUTH' 22'21'34"
EAST, 37.01 FEET; THENCE SOUTH 67930'26" WEST, 15.00 FEET; THENCE
SOUTH 22'21'34" EAST, 32.1.6 FEET; THENCE SOUTH 67'30'26" WEST,
40.78 FEET; THENCE NORTH 22"21134'! WEST, 20.00 FEET; THENCE NORTH
67°30'26" EAST, 20.70 PEET) THENCE: NORTH 22'21'34" WEST, 22.16 FEET
TO A POINT ON THE SOU'l'HERLY LINE OF SAID "PIPE LINE LICENSE";
THENCE ALONG SAID SOUTHERLY LINE, SOUl'H 67"38'26" WEST, 128.59 FEET
TO TllE TRUE POINT OF BEGINNING. . .
ATTACHED HERETO 1S A PLAT LABELED EXHIBIT 'P-1" AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARC
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRIU
IIISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID
RASED UPON CALIFORNIA COORDXNATE SYSTEM ZONE 6, ADJUSTMENT, NAO-
03, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 0.092 ACHES, MORE OR LESS.
.-*- ..-
GARY L. HUS DATE
L.S. 7019
EXPIRATION DATE 6/30/2010
EXHIBIT 'H*'
LEGAL DESCRIPTION
FOR
SEAWATER INTRKE/OUTFALL EASEMENT RREA
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA TN TIiE CITY OF i
CARLSBAD, COUNTY OF SAN DIEGO, S'PATE OF CALIFORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF I
COMPLIANCE RECORDED OCTOBER 30, 2001, A9 DOCUMENT NO. 2001-
0789068, PARCEL 4, MORE PARTICUIlARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RICHT-
OF-WAY OF' THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22O30'13"
WEST, 1490.22 FEET; THENCE IoEAVSNG SAID WESTERLY LINE, SOUTH
66O28' 49" WEST, 340. '11 FEW; THENCE NORTH 40°03'53" WEST, 26.08
FEET; THENCE SOUTH 66'28'49'' WEST, 45.93 NET; THENCE NORTH
22'28' 46" WEST, 1.7.56 FEET; THENCE SOUTH 66'31'12" WEST, 403.04
FEET; THENCE NORTH 22'23'45" WEST, 151.01 FEET; THENCE NORTH
67 '18' 36" WEST, 174.25 FEETf THENCE NORTH 76"03'09" WEST, 33.56
FEET TO THE TRUE POINT OF BEGINNING; 'I'HENCF: NORTH '16°03'09" WEST,
41.14 FEET: THENCE SOUTTU 67'05'54" WEST, 142.26 FEET; THENCE
SOUTH 34'28'03" WEST, 161.11 FEET TO A POINT ON THE EASTERL,Y LINE
OF CARLSBAD BOULEVARD (FORMERLY XI-SD-23), BEING 1.00.00 FEET WIDE
AS SHOWN ON RECORD OF SURVEY NO. 1.7350; THENCE ALONG SAID EASTERLY
LINE NORTH 24'07'36'' WEST, 498.52 FEET; THENCE LEAVING SAID
EASTERLY LINE NOK'PH 64'33'05" EAST, 16.50 FEET; THENCE NORTH
1,2°16'19'' EAST, 29.68 FEET; THENCE NOR'l'H 65°25'26" EAST, 158.31
FEET TO A POINT ON THE NOR'I'HERLY LINE OF SAID PARCEL 4; THENCE
ALONG SAID NORTHERLY LINE, SOUTH 30'14' 20" EAST, 44.12 FEET; TllENCE
SOUTH 05°5'1' 51" EAST, 202.95 FEET; 'I'HENCE SOUTH 74'44 ' 52" EAST,
1.64.81 FEW; THENCE NORTH 41'35'28'' EAST, 60.04 FEW; THENCE SOU'PH
22'28' 16" EAST, 152.31 FEET TO THE POINT OF. BE,GI,mING,.
ATTACHED HERETO IS A PLAT LABELED EXH:IRIT 'H-1" AND BY THIS
IIEF'ERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE
GRID DISTANCES. 'TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID
13nSED UPON CALI170RNIA COORDINATE SYSTEM ZONE 6, ADJUSTNENT, NAD-
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 2.264 ACKKS, MORE OR LESS.
GARY t. NUS DATE
L.S. 7019
EXPIRATION DATE 6/30/201.0
T~lJRVE~~3~8UW~.Ql~l3 - PlhtrU.cpl$\T;xllibit H.I-mo!~(i~-lnlnk~~~a~l doc
NO. 7018
LEGAL mtpnav:
A PORnON OF PARCEL 4 PER CERnFlCAK W LEGEND:
COMPUANE RErnDED OCTOBER JO, 2001 AS
OOCUMENT NO. 2001-0789068. AND AS SHOW INDlCAKS EXlSnNC PROPERTY LINC
bV RECOWD W SVRMY NO. 17550, tN ME HEW
OF CARLSBAO, CWN lY (Wr SAN OIEGO, S M TE P.O.C. -- INDICA KS POIN T W COMMENCEMENT
W CALIFORNIA.
T.P.O.B. - INMCAiES RUE PCWT Cf KCINNING ASSESSORS PARCEL NO:
210-010-43 - INOICA l'CS WE LEASED PREMISES
BASIS OF BEARINGS: AREA - 5.703 ACRES, MUORE OR LESS
THE BASS W BEARINGS FOR THlS ORAWNC
IS M HQRIZCWTAL CONm BAS0 ED Ow CALIFORNIA
COdPDlNAlE SYSTEM ZONE 6, NAD 8J, AS DEERMINE0
LOCALLY BY THE UNE BEMEN FIRST ORDER CONTRa
PWNE 057 AND 141 PER REmO OF SURVEY NO. 17271.
I.E. N40'39'21"W.
0 WER:
CABRlllO POWR 1 LLC
4600 CARLSBAO BOULEVARD .~~. - -~
CARLSBAO, CALIFORNIA 92008
PHONE: (760) 268-401 1
a LICYNUY MAP
N NO SCALE
SURMYOR OF WORK:
PROJECT OEPCN CONSUL TANE
701 B SREET SUITE 800
SAN OIECa CALIFORNIA 92101
PHONE (619) 235-6471 NO. 7019
GARY L. HUS, L.S. 7019 0.4 lE THE LEASED
REG~S~RAIION EXPIRES 6/30/2010 PREMISES
APPIICANP PRCPAREO BY: EXHIBIT
POSflDON RESOURCES
501 KnF &PfJOM Y SUlK 2020
SAN OIfGO, CALIFORNlA 92101
I \SUW~\~J~~\~~-O~-IJ - Rols\FmfAl mmf4-1.0~&~nt~~N~~Ol an)
PROJECT DfSICN CONSUL TANrS
701 B SIREET SUITE 800
SAN OIE%O. CALIFORNIA 911101
'A-I*'
wmi(x'2
AP.H 210-010-4J
LEGAL DESCRIPllW:
A PMPnON W PARCR 4 PER CfRnFCAE OF
COUPLlANCE RfCaRDED OC7MKR JO 2001 A9 LEGEND:
OOCVUENT NO. 200i107&1&- AND'ASSHO~ INOICA AIES EXISTING PROPERTY LlNf
(W RWO ff SURVEY NO 17354 IN THE CITY
CF CARLSAD, COUNlY OF SAN DEW, STAlE P.O.C. INOlCAlET POINT OF COUMMCEMENT OF CALFa4NIA.
ASSESSORS PARCEL NO:
210-010-(5
BASS OF BEARINGS:
T.P.O.B. - INOCATES IRUC POINT OF KUNNINC
- lNOlCA7CS IN TAKE/b/SCHMGE EAKMElV
AREA r 1.678 AaPES, MaPE OR LESS
THE BAYS OF BEARINGS F~R mjs ORAWNC 1s WE HORlZCNTAL CONTRGi BAS0 ON M CALIfMNlA
COORDINATE SYSEU ZONE 6, NAD 8.5, AS DErEIUUNEO
LOCALLY BY M LWE BEWEN FIRST ORDER cwma
POINTS 057 AN0 I41 PER RECORO OF SURMY NO. 17271.
1E. ~4039'1I'W.
4600 CARLSEA0 BOULEVARD
CARLSEAO. CALIFORNIA 92008
N NO SCALE
SURMYOR OF WORK:
PROXCT DESIGN C6VSV1 TANV
701 8 S IREET SUITE 800
SAN DIECO, CALIfORNIA 92101
PHONE: (619) ZJ5-6471
WATER PLANT
GARY L. HUS, L.S. 7019 DATE INTAKE/DISCHARGE
QCGISIRA nm EXPRES s/~o/zoio EASEMENT AREA
EXHIBIT 'C-I*'
SHEET I # J
A.P.N. 210-010-45
PLICANT:
'WON RESOURCES
HESI BROADWAY WE 2020
PREPARFO BY:
PRWCT DESlCN CONSUL TANS
701 B SllM7 SUE 600
SAN DIEGO, CALIFORNIA 92101
~*YlZJW\ZO29-0~-lJ - ~bl~\~lCl-~~c~~~-~~loW~s~l~~~lO~,~~
APPl/CANT: PREPARE0 8C EXHIBIT 'C-I*'
WEETBffJ
A.P.N. 210-010-43
POKIDON RtSOURCES
501 I#SI ~DWAY 2020
SAN OIECO, CALlf(WINIA 92101
l:\W~r\2J98\~-07-1J - PMI,\PMC~-~K~~~-~IOI~O.QPIO~.~~
PROJECT OESlCN CONSUL TANTS
701 B STREET sun 800
SAN OIEGO, CALlFaPNlA 92101
LA6W
\
\
\
\
PARCEL 4 \ +
R06 -17350
PARCEL 4
CPRTIPICATB OF COMPLIANCE
RCQORDeD OGTOEER 30. 2001 me NO. 2001-0780008
WATER PLANT
INTAKE/DISCHARGE
SCALE I" = 200' EASEMENT AREA
LINE TARE
LWE I BEARING 1 lENGM
' Lf 1 ~32~4'53"~ 1 93.96'
12 I N42'5J'Db"W 1 37.&
\ \
APPLICANT: PREPARE0 BY: EXHIBIT 'C-I*'
~TJffJ
A.P.N. 210-010-45
POSEIOON RESOURCES
MI KSI @R04DWAI WlE 2020
SAN DlECO, CALIFORNIA Q2101
c \MKI\UM\M09-07-IJ - fl~~r\~(Cl-rocol~-Inl~h'"pcShlOJ~
PRMCT DESIGN CONSUL TANM
701 B SlREET SUIE 800
SAN DIEGO, CALk%QMA 92/01
LEGAL DESCflP7lffl:
A PCRTION OF PARCEL 4 PER CERnFICAB OF LEGEND:
COMPLIANCE RECMIOEO OCTOBER 30, 2tWl AS
OOCUMENT NO. MOI-0789068, AN0 AS SHOW INOCA ES EElSllN6' PROPEI)TY LINE
(WV REm ff SURMY NO. 17JJO, IN WE ClN
W CARLSBAO, COUNTY W SAN MCO, STAE P.O.C. - INDICAlES PWT ff COUMENCEMENT
ASSESSWS PARCEL NO:
210-010-U
BASIS CIC BEARINGS:
T.P.O.B. INMtATES TAOE POINT ff BEWNING
-. lN#CATES CONNECnffl EASTMENT
AREA = a073 ACRCS MORf ChP LESS
WE HEBASlS OF BEARINGS FOR THIS DRAMNC'
IS mf HHORIZIWVT~ wma BAW ON mf CALIFORNIA
CCOROINAIE SYSlfM ZWE 6, NAD 83, AS DETfRMNEO
LOCALLY BY THE LlNf BEMEN FlRST WD€R CONTRIX
FONTS 057 AND.141 PER RECORO OF SURVFY NO. 17271,
I.€. N40'39'2I"W.
I CABRILLOPOMTRI LLC
N NO SCALE
SURMYOR Of WORK:
PROJECT DESIGN CONSUL TAN lS
701 B SmEET SUITf 800
SAN DIECO, CALIFORNIA 92101
PHONE (619) 235-6471 ,
GARY L HUS, L.S. 7019 DATE CONNECT ION
RECISTRA~~ EXPIRES tz/50/1010 EASEMENT AREA
APPLICANT: PREPAR~O 8R EXHIBIT '
glL+TlWJ
A.P.N. 210-010-43
WSNDCW RESOURCES
501 HST MOLlDWAY SUE 2020
SAN DIE&? CALIFORNIA 92101
c \ar*.*rr\2398\Zr%9-07-IJ - Molr\Pr~rol-n~~r~-hI~t*)rtr(l~~~~ylIOl.d~
PROJECr OESIGh' CONSUL TANE
701 8 SLQEET SUlK 800
SAN DlECO, CALIFORNIA 92101
LINE TABLE
~32V4'53'W 93.96'
LEGAL DESCRIPTION:
A PORllON OF PARCEL 4 PER CERTlNCATE OF
COMPLIANCE RECORDED OCrOBER JO, 2001 AS
LEGEND:
DOCUMENT NO. 2001-0789068. AND AS SHOW INOICATES EXlSnNG PROPERTY LINE
ON RECORD OF SURMY NO. 17350, IN WE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STA IE P.O.B. - INDICATES PWT LF EEGINNINC OF CALIFORNIA.
ASSESSORS PARCEL NO: - INDICA TES
210-010-43 PRODUCT WATER PIPELINE EASEMENT
AREA = 3.036 ACRES, MORE OR LESS
BASIS OF BEARING3
THE BASIS OF BEARINGS FOR WIS DRAW
6 IHE'HORIZDNTAL CONTROL BASED CW WE CALIFORNIA
COaRDINAa SYSTEM ZWE 6, NAD 83, AS DEKl#llNED
LOCALLY BY 1)1E LINE BETWEEN rrRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURKY NO. 17271.
1.C N4V3921"W.
OWNER:
CABRKLO POKR I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD, CIUIFORNIA 92008
PHONE: (760) 268-401 I
A WC/N/V MAP
N NO SCALE
SURMYhP OF WORK:
PROXCT DESIGN CONSUL TANTS
701 8 STREET SUITE 800
SAN DIECO. CALIFORNIA 92101
NO. 7019 PHONE: (619) 235-6471
PRODUCT
GARY L. .HUS. L.S. 7019 DATE WATER PIPELINE
RECISTRA nON EXPIRES 6/50/2010 EASEMENT AREA
APPLICANP PREPARED BY: EXHIBIT 'E-I*'
SIEET 1 ff 3
A.P.N. 210-010-43
POSEIDm RESOURCES
501 IKSI BROADWAr WE 2020
SAN DIEGC? CALIFORNA 91101
I: \wRKr\2J98\zOl9-ot.lJ - Ploa\rlolEl-rerm~ip-Predv~llm~~rPip~~in~mlol.aw~
PRMCl OESGN CONSUL TANIS
701 8 STREET SUITE 800
SAN OIEGO, CALIFORNIA 92101
APPLICANT: PRfPARfO BY: EXHIBIT 'E-I*'
SHEETZWJ
A.P.N. 210-010-43
POSEIDON RfSOURCfS
501 KST BROADWAY WE 2010
SAN OIfCO, CALIFORNIA 92101
r:\SWfEr\2J98\~P.-O7-lJ .. Phlr\N~CI-r~~0nl~-Pr0d~~lWolarPip~hh~ShlQ2.dr~
PR~~D~SICN CONSUL TAN5
701 B SlRff T SUITE 800
SAN OIECO, CALIFORNIA 92101
LEGAL DESCRlP7lOHI:
A PORnON LY PARCEL 4 PER CERnFICA E OF .LEGEND:
CWPLIAMX REroRgED OCTWER JO, 2001 AS
WCUMENT NO. 2001-0789064 AN0 AS SHOW WOICA ES EXISnNC PROPERTY LINE
mi RECW LY SURMY wa 17~50. IN ;RK arr
MMENCEMENT
IOICAES RUE POINT OF BEClNNlNG
OF CARLSAD, COUNTY OF SAN O~ECO, STAR P.O.C. INDICAES PWT OF Cl
OF CALIFORNIA
T.P.O.B. W
ASSESSORS PARCEL NO: m --dm
210-010-43, 10 & 41
BASIS Of BEARINGS: - g222wEsnc u m EAscuENr
AREA A092 ACRE, MORE OR LESS
WE BAS OF BEARINGS FOR THIS ORAklNC
IS ME HORIZWTAL CONTROL BASE0 ON THE CALIFORNIA
COaRDINA R SEEM ZONE 6, NAO 83, AS OEKRMIMO
LOCALLY BY THE LWr BEMEN FIRST ORDER CMVllML
CABRlLlO POWR I LLC
4600 CARLSBAO BOULEVARD
ChRLSBAO, CAUFORWA 92008
PHONE: (760) 268-4011
A WCiNlTY MAP
N NO SCALE
SURMWkP OF WRK:
PROKCT DESIGN CONSULTANTS
701 8 SMET SUITE 800
SAN DIEGO, CALIFORNIA 922101
PHONE: (619) 255-6471
SEWER/ GARY L. HUS. L.S 7019 OA TE DOMESTIC WATER
REClSlUAnON EXPIRES 6/30/2010 EASEMENT AREA
PPLICANR PREPARED BP EXHIBIT ' F-3 *'
st+T1 WJ
A.P.N. 210-010-43
OSEOON RfSWRCES
)I KST BRMOWAY SUlR 2020
IN MEW, CALIFORNIA 92101
URM.r\2JOBl2LW 47-IJ nols\~lr-t~a~-5~~nOmr~frrWrr~lOl dq
PROXCT OtSICaV CONSJL TAN rS
701 0 STRfET SUITE 800
SAN OIECO, CALIFORNIA 92101
PARCEL 4
CERTIFICATE
OF COMPLIANCE \
REC. OCT. 30. 2001 \
FILE NO. 2001-0789068 \
POSNDON RESOURCES
501 KST BROMWAY WIE 20.20
LEGAL DES(;WIPnON:
A mnm OF PARML 4 PER COP~~CATE w LEENO:
COMPLIANCE RECWDEO OCTOBER .SO, 2001 AS
OOCUYENT NO. 2001-0789068. AM) AS WOW. INDICATES EXlSnNC PROPERTY LINE
~ ...
W RE^ OF s$MY NO, 17350.~1~ hI€ ~TY
Of CARLSBAO, COUNTY OF SAN DIEGO, STATE P.O.C. - 1NGiCATE.S PGiNI OF COMMENCEMENT
N CAI RfWNIA
ASSESSORS PARCEL NO:
210-010-4s
BASIS OF BEARING3
T.P.O.B. - INDICATES TRUE POINT OF BEGINNING '
- INWCAm INTAKE/OUFAU EASEMEN T
AREA 2.264 Am, MORE OR LESS
THE BASIS Of BEARINGS FOR MIS DRAWNG
IS THE HORIZONTAL CONTRCi BASED ON ME CAllFORNlA
COOROINAB SYSTEM ZONE 6, NAD 8.3, AS STERMINED
LOCALLY BY 7HE LINE BEMEN FRSI ORDER CQNTRDL
POINTS 057 AND 141 PER RECORD CF SURMY NQ 17271.
LE. NlO'39'21'W.
1 CABRlLLOPO*aI LLC
4600 CARLSBAD BOULEVARD
CARLSBAO, CALIFORNIA 92008
PmE: (760) 268-4011
A WONITY MAP
N NO SCALE
SURMWIR OF WRK:
PROJECT DESIGN CONSUL TANS
MI B smcr SUITE BOO
SAN DIEGO, CALIFORNIA 92101
PHONE (619) 235-6471
SEAWATER
GARY L. HUS, L.S 7019 OAR INTAKE/OUTFALL
REGJSlRAIION EXPIRES 6/J0/2010 EASEMENT AREA
APPLICANT: PREPARED BY: EXHIBIT 'H-l*'
SWZT1ff3
A.P.N. 210-010-15
POSEIDON RESOURCES
501 WST WADWAY WE 2010
SAN DIECO, CALIF04MA 92101 - ~:\swur\uss\zooo-o~..~~ - nofr\a~n~-~map-n~d~~~uxy~~o~~~lp
PROSEC~ OESIGN CONSUL TAN rs
701 8 SlREEr SUIE 800
SAN DIfC4 CALIFORNIA 92101
\ \
IPPLICANC PREPARED EV EXHIBIT
'OSnOON RESOURCES
01 WST 8ROADWAY SUE 2020
2N 01EC0, CALIfORWA 92101
~URK~\~J~~\?~-O~-,J - ma\~omr-/ccm$-ult~~~Ourra9hfoj.~q
PROXCT DESIGN CONSUL TANS
701 8 STREET SUllE 800
SAN DlECO, CALIfaRNIA 92101
' H-l*'
WEETJW.3
4.P.N 210-010-4~
EXHIBIT %FWD"
(Existing Development Approvals)
(a) Final EIR 03-05; Findings of Fact; Statement of Overriding
Considerations; and Mitigation Monitoring and Reporting Program;
u
&+Precise Development Plan f-PDP 00-02B);
4& (+Specific Plan 144(HJ);
@ 0-Coastal Development Permit CDP 04-41;
@South Carlsbad Coastal Redevelopment Permit AmendmentRP 05-
12m
\
!a Deve--t DA 05-01 14;
*Habitat Management Plan Permit AmendmentHMPP 05-08m;
(#+Special Use Permit SUP 05-04
(Existing Land Use Regulations)
a +City of Carlsbad General Plan as amended through Resolution No.
8XP-
b, Code ~ii
&---City of Carlsbad Precise Development Plan =00-02@) as
amended through Ordinance No.
& &South Carlsbad Coastal Redevelopment Plan:;
e +Specific Plan 144(MJ, as amended through City of Carlsbad
No.
TFD By I
er PFNAl TY OF PFRJURY undar of the State of
and correct,
. . conveved bwtkWWu