HomeMy WebLinkAbout2009-09-15; City Council; 19964; Desalination Project Changes - EIR 03-05A |DA 05-01A|HMP 05-08A|PDP 00-02B|RP 05-12A|SP 144J|CITY OF CARLSBAD CITY COUNCIL AND
HOUSING AND REDEVELOPMENT COMMISSION
AGENDA BILL
12
19.964AB#
MTG.
DEPT. PLN
09/15/09
DESALINATION PROJECT CHANGES-
EIR03-05(A)/PDP 00-02(B)/SP 144(J)/DA 05-
01(A)/RP 05-12(A)/HMP 05-08(A)
DEPT. HEA
CITY ATTY.
CITY MGR.
RECOMMENDED ACTION:
1. That the Council:
a. INTRODUCE Ordinance Nos. cs-057 CS-058 and CS-059
APPROVING Specific Plan 144(J), Precise Development Plan POP 00-02(B), and
the Amended and Restated Development Agreement DA 05-01 (A); and
b. ADOPT City Council Resolution No. 2009-233 APPROVING Environmental
Impact Report EIR 03-05(A) and Habitat Management Plan Permit HMP 05-08(A).
2. That the Housing and Redevelopment Commission ADOPT Housing and
Redevelopment Commission Resolution No. 477 APPROVING EIR 03-05(A) and
RP 05-12(A).
ITEM EXPLANATION:
Project Application(s)
EIR 03-05(A)
POP 00-02(8)
Specific Plan 144(J)
Development Agreement
DA 05-01 (A)
RP05-12(A)
HMP 05-08(A)
Administrative
Approvals
Planning
Commission
RA
RA
RA
RA
RA
RA
City Council
X
X
X
X
X
Housing and
Redevelopment
Commission
X
X
RA = Recommended Approval
x = Final City decision-making authority
In 2006, the Carlsbad City Council and Housing and Redevelopment Commission certified EIR
03-05 and approved the Encina Power Station Precise Development Plan POP 00-02, Encina
Specific Plan SP 144(H), Development Agreement DA 05-01, Redevelopment Permit RP 05-
12, and Habitat Management Plan Permit HMP 05-08 to (1) establish a Precise Development
Plan for the Encina Power Station (EPS) located west of Interstate 5 at 4600 Carlsbad
Boulevard; (2) approve a 50 million gallon a day Carlsbad Seawater Desalination Plant at the
EPS, and (3) approve a network of desalinated water delivery pipelines in the cities of
Carlsbad, Oceanside, and Vista.
DEPARTMENT CONTACT: City Employee 760-602-4618 scott.donnell@carlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
D
D
Dn
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER - SEE MINUTES
D
D
D
D
Page 2
Presently, Poseidon Resources (Channelside) LLC is requesting approval of an addendum to
EIR 03-05 and amendments to the previously identified applications to reconfigure the
approved desalination plant site, modify plant buildings and structure sizes and locations,
consolidate plant uses, and underground related plant facilities, all on the EPS property.
The proposed changes would also modify the delivery pipeline network, located off of the EPS
property, by (1) identifying the general locations of flow control facilities, (2) making minor
adjustments to the alignment, and (3) adding new pipelines south of Palomar Airport Road in
Melrose Drive and east of Melrose Drive into the City of San Marcos primarily via streets in
Carlsbad, San Marcos and Vista. The approved and proposed pipelines would connect to
existing water facilities and would be located in street rights of way and already developed and
disturbed properties. Permits from cities other than Carlsbad would be needed to construct the
pipeline network.
EIR 03-05(A), the addendum to the certified EIR, would analyze all changes proposed. An
addendum is appropriate for minor, post-approval changes that do not warrant preparation of a
supplemental or subsequent EIR.
On August 19, 2009, the City of Carlsbad Planning Commission held a public hearing and voted
6-0-1 (Montgomery absent) to recommend approval of the Addendum and all proposed
amendments.
At the public hearing, seven speakers commented on the project. Five speakers expressed
support, including the Carlsbad Chamber of Commerce, which submitted a letter. Two
speakers, representing the California Environmental Rights Foundation, San Diego
Coastkeeper (collectively "Environmental Groups") and Coast Law Group, opposed the project.
A letter on behalf of the Environmental Groups also was submitted by one of the opposing
speakers.
Among other things, those speaking in opposition stated the project changes warranted an
environmental impact report, not an addendum, and recommended the Planning Commission
not support the proposal. City staff, consultants and the project applicant responded to the
public comments at the hearing. A full record of the comments and responses can be found in
the Planning Commission minutes dated August 19, 2009. The two letters submitted at the
public hearing are also attached. Staff has also attached a response to the letter submitted on
the behalf of the Environmental Groups.
FISCAL IMPACT:
The project will provide the City with desalinated water at a predictable and reasonable price
through the long-term Water Purchase Agreement, which sets water rates at a price no greater
than what CMWD would pay CWA. Further, the project will generate up to $2.5 million per year
in increased property tax revenue. Because the project site is located within the South
Carlsbad Coastal Redevelopment Area, an estimated $2.0 million per year of the tax revenue
will be allocated directly to the Redevelopment Agency. The City's rights to receive an
economic benefit from the project are protected in the event a successor in interest to
Poseidon, including without limitation a public agency, purchases (either through voluntary sale
or condemnation) the desalination plant.
PageS
All required improvements needed to serve or enable this project would be funded by the
developer. Through the proposed Development Agreement, the City reserves the right to apply
necessary processing fees for all project applications, reviews, and permits. The Agreement
also specifies the City will provide, without charge, access to public rights of way for pipelines to
deliver desalinated water to CMWD. Additionally, the Development Agreement notes the City
will cooperate with Poseidon in obtaining subsidies, grants, or external funding for the project.
ENVIRONMENTAL IMPACT:
The recommended Addendum to the certified EIR documents the minor technical changes
included in the permit amendments and the revised product water pipeline alignments. CEQA
Guideline Section 15164 states that "the lead agency...shall prepare an addendum to a
previously certified EIR if some changes or additions are necessary but none of the conditions
described in Section 15162 calling for the preparation of a subsequent EIR or negative
declaration have occurred."
Staff has reviewed the project changes and found that none of the requirements in CEQA
Guidelines sections 15162 or 15163 for supplemental or subsequent EIRs have been triggered.
Therefore, the revised project is within the scope of the certified EIR and use of an addendum to
document the project changes is appropriate.
Guideline 15164 also notes an addendum need not be circulated for public review but may
simply be attached to the Final EIR. While the proposed addendum was not circulated as is
required for Draft EIRs, staff has made the proposed document known and available for public
review by identifying it in the project's public hearing notice, distributing it to neighboring
jurisdictions and agencies affected by the project, and including it as part of the Planning
Commission staff report.
EXHIBITS:
1. City Council Ordinance No. cs-057
2. City Council Ordinance No. cs-058
3. City Council Ordinance No. cs-059
4. City Council Resolution No. 2009-233
5. Housing and Redevelopment Commission Resolution No. 477
6. Location Map (Figure 1 - Desalination Plant and Pipelines Map)
7. Planning Commission Resolutions 6631, 6632,6633, 6634, 6635, and 6636 (On file clerk's
8. Errata Sheet (On file Clerk's Office) Office)
9. Planning Commission Staff Report dated August 19, 2009 (without resolutions and
Ordinances) (On file Clerk's Office)
10. August 18, 2009, letter from Poseidon Resources (On file clerk's office)
11. August 18, 2009, letter from Carlsbad Chamber of Commerce (On file clerk's office)
12. August 19, 2009, letter from Coast Law Group on behalf of the Environmental Groups (On file)
13. September 2, 2009, letter from city staff responding to letter on behalf of the
Environmental Groups (On file Clerk's office)
14. Excerpt of draft Planning Commission minutes dated August 19, 2009 (On file Clerk's Office)
15. Addendum to EIR 03-05 (EIR 03-05(A^*
16. Certified Final EIR 03-05 *
17. Approved City Council Resolution 2006-156, which includes:
a. Additional responses to comments on Final EIR 03-05, dated June 13, 2006;
Page 4
b. Amendment to add Section 5.5 to the Findings of Fact and Statement of
Overriding Considerations*
18. Approved Planning Commission Resolution No. 6087, incorporated by reference into
City Council Resolution 2006-156 and which includes:
a. Findings of Fact and Statement of Overriding Considerations;
b. Mitigation Monitoring and Reporting Program*
19. - Proposed Encina Specific Plan 144(J)*
20. Proposed Precise Development Plan POP 00-02(6)*
21. Specific Plan 144(H)*.
*Denotes item previously distributed with copies on file in the Planning Department and City
Clerk's Office.
EXHIBIT 1
ORDINANCE NO. CS-057
2
3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AMENDING THE ENCINA
SPECIFIC PLAN SP 144(H) TO INCORPORATE
PRECISE DEVELOPMENT PLAN POP 00-02(B) AS
APPROVED BY CITY COUNCIL ORDINANCE NO.
r..q-nS8 FOR THE ENCINA POWER STATION AND
CARLSBAD SEAWATER DESALINATION PLANT
LOCATED ON PROPERTY NORTH OF CANNON
ROAD, SOUTH OF AGUA HEDIONDA LAGOON,
9 EAST OF CARLSBAD BOULEVARD AND WEST OF
1f) INTERSTATE 5 AND IN LOCAL FACILITIES
MANAGEMENT ZONES 1 AND 3.
11 CASE NAME: DESALINATION PROJECT CHANGES
12 CASE NO.: SP 144(J)
13 WHEREAS, the City Council of the City of Carlsbad, California has reviewed and
14 considered a request from Poseidon Resources (Channelside) LLC to incorporate Precise
15
Development Plan 00-02(6) as approved by City Council Ordinance No. CS-058 for
17 the Encina Power Station and Carlsbad Seawater Desalination Plant into Encina Specific Plan
18 144; and19
20 WHEREAS, said application constitutes a request for a Specific Plan
Amendment as shown on Exhibit "Encina Specific Plan Amendment — SP 144(J)" attached
22
hereto and made a part hereof and in the document "Draft City of Carlsbad Specific Plan 144
24 Amended and Restated with Amendment SP 144J" on file in the Planning Department and also
and made a part hereof; and
26
WHEREAS, the amendment is proposed to approve changes to the Carlsbad
28 Seawater Desalination Plant; and
WHEREAS, changes proposed to SP 144 revise document text with changes
shown in strikeout for words to be deleted and underline for words to be added; and
WHEREAS, after procedures in accordance with the requirements of law, the
City of Carlsbad has determined that the public interest indicates that said specific plan
amendment be approved; and
WHEREAS, the City Council did on the 15tb 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
2
and arguments, if any, of all persons desiring to be heard, said Council considered all factors
4 relating to Encina Specific Plan Amendment — SP 144(J).
5 NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
6
- ordain as follows:
8 SECTION I: That Specific Plan Amendment SP 144(J) dated August 19, 2009,
9
on file in the Planning Department, and incorporated by reference herein, is approved. All
10
, , development of the property shall substantially conform to the plan unless otherwise noted in
12 these conditions.
SECTION II: That the findings and conditions of the Planning Commission in
14
Planning Commission Resolution No. 6633 shall also constitute the findings and conditions of
16 the City Council.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
18
19 adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be
20 published at least once in a publication of general circulation in the City of Carlsbad within
21 fifteen days after its adoption.
22
23 /"
24 ///
25
26
27 ///
28 ///
-2-
1 INTRODUCED AND FIRST READ at a joint special meeting of the Carlsbad
2
City Council and Housing and Redevelopment Commission on the 15th day of September
4 2009, and thereafter.
5 PASSED AND ADOPTED at a regular meeting of the City Council of the City of
6
_ Carlsbad on the day of 2009, by the following vote, to wit:
8 AYES:
9 NOES:
10
ABSENT:
12 ABSTAIN:
13
14
16
17
APPROVED AS TO FORM AND LEGALITY
18 RONALD R. BALL, City Attorney
19
20
21 CLAUDE A. LEWIS, Mayor
22
23 ATTEST:
24
25
26
27 LORRAINE M. WOOD, City Clerk
28 (SEAL)
-3-
Encina Specific Plan Amendment - SP144(J)
August 19, 2009
.5^
\
AGUA HEDtQNDA LAGOON
oo
o
Feet
0 500 1,000
J:\Requests\PlannmgV4103790_09
_C AMINO EEAL.
ri * Jf
Precise Development Plan
(with Amendments per POP 00-02(6)
to be incorporated into Specific Plan 144)
Specific Plan 144 Boundary
*"•*? /
EXHIBIT 2
1 ORDINANCE NO. CS-OS8
2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, AMENDING THE ENCINA POWER
4 STATION PRECISE DEVELOPMENT PLAN POP 00-02 TO
APPROVE CHANGES TO THE CARLSBAD SEAWATER
5 DESALINATION PLANT PROPOSED AT THE ENCINA POWER
6 STATION (EPS), 4600 CARLSBAD BOULEVARD, IN LOCAL
FACILITIES MANAGEMENT ZONES 1 AND 3 AND GENERALLY
1 NORTH OF CANNON ROAD, SOUTH OF AGUA HEDIONDA
8 LAGOON, EAST OF THE PACIFIC OCEAN, AND WEST OF
INTERSTATE 5.
CASE NAME: DESALINATION PROJECT CHANGES
10 CASE NO.: POP 00-02(6)
WHEREAS, the City Council of the City of Carlsbad, California has reviewed and
12
,., considered a request to approve an amendment to the Encina Power Station Precise
14 Development Plan, POP 00-02, via application Precise Development Permit 00-02A(B); and
WHEREAS, the amendment is proposed to approve changes to the Carlsbad
16
Seawater Desalination Plant; and
18 WHEREAS, changes proposed to the POP 00-02 revise document graphics and
19 text, with text changes shown in strikeout for words to be deleted and underline for words to be
20
added; and
22 WHEREAS, after procedures in accordance with the requirements of law, the
23 City of Carlsbad has determined that the public interest indicates that said precise development
25 plan amendment be approved; and
26 WHEREAS, the City Council did on the ^v, day
27
2009, hold a duly noticed public hearing as prescribed by law to consider said request; and28
WHEREAS, said application constitutes a request for a precise development
plan amendment consistent with Chapter 21.36 of the Municipal Code as shown and described
in the "Encina Power Station Precise Development Plan POP 00-02(B)" document and on
Exhibits "A" - "P," both dated August 19, 2009, and incorporated herein by reference and on
file in the Planning Department.
NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
ordain as follows:
SECTION I: That Precise Development Plan POP 00-02(8), dated August 19,
2009, on file in the Planning Department and incorporated by reference herein, is adopted.
3 The Encina Power Station Precise Development Plan PDP 00-02(6) shall constitute the
4 development plan for the property and all development within the plan area shall conform to
5
the plan.
6
SECTION II: That the findings and conditions of the Planning Commission in
7
Planning Commission Resolution No. 6632 shall also constitute the findings and conditions of
the City Council.
1 „ EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be
12 published at least once in a publication of general circulation in the City of Carlsbad within
13 fifteen days after its adoption.
14 ///
15 III
16 ///
///
18 ///
19 ///
20 ///
21
22
23
24
25
26 '"
27 '"
28 <"
-2-
1 INTRODUCED AND FIRST READ at a joint special meeting of the Carlsbad
2
City Council and Housing and Redevelopment Commission on the 15th day of September
4 2009, and thereafter.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
6
Carlsbad on the day of 2009, by the following vote, to wit:
8 AYES:
9 NOES:
10
ABSENT:
12 ABSTAIN:
13
14
! 5 APPROVED AS TO FORM AND LEGALITY
16
17
18 RONALD R. BALL, City Attorney
19
20
21 CLAUDE A. LEWIS, Mayor22
23 ATTEST:24
25
26
27 LORRAINE M. WOOD, City Clerk
28 (SEAL)
-3-
EXHIBIT 3
1 ORDINANCE NO. CS-059
2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, APPROVING THE AMENDED AND
4 RESTATED DEVELOPMENT AGREEMENT DA 05-01 (A)
BETWEEN THE CITY OF CARLSBAD AND POSEIDON
5 RESOURCES (CHANNELSIDE) LLC TO PROVIDE FOR THE
6 CONSTRUCTION OF THE CARLSBAD SEAWATER
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
,. 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 or bold underline for
22
23 words to be added; 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 -ist-v. day of 5
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
2
and arguments, if any, of all persons desiring to be heard, said Council considered all factors
4 relating to the Amended and Restated Development Agreement.
5 NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
6
- ordain as follows:
8 SECTION I: The City Council finds that there have been further refinements in
Q the development agreement and that the Amended and Restated Development Agreement
10
, between the City of Carlsbad and Poseidon Resources (Channelside) LLC, attached hereto
12 marked Exhibit "X-1," dated September 9, 2009, and incorporated by reference ("Amended and
Restated Development Agreement"), and it has carefully reviewed that document and it is
14
approved in substantially the form presented at the Council meeting of September 15, 2009
16 and subject to obtaining the consent of the property owner (Cabrillo Power I, LLC) in a form
satisfactory to the City Attorney.
18
SECTION II: The Council further finds that the findings and conditions of the
20 Planning Commission in Planning Commission Resolution No. 6634 that recommended for
21 approval the ("Amended and Restated Development Agreement" dated August 19, 2009, on file
22
23 in the Office of the City Clerk), also apply to the September 9, 2009 development agreement as
24 it complies with the intent and purpose of the development ordinance and therefore constitute
25 the findings and conditions of the City Council.26
27 SECTION III: Upon the occurrence of the Effective Date (as defined in the
28 Amended and Restated Development Agreement), the City Clerk is authorized and directed to
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
-2-
1 become effective unless and until the Development Agreement is approved by the California
2
Coastal Commission.
4 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
6
2009, and thereafter.
8 PASSED AND ADOPTED at a regular meeting of the City Council of the City of
9
Carlsbad on the day of 2009, by the following vote, to wit:
10
AYES:
12 NOES:
13 ABSENT:
14
15 ABSTAIN:
16
1 ? APPROVED AS TO FORM AND LEGALITY
18
19
20
RONALD R. BALL, City Attorney
22
23
24 CLAUDE A. LEWIS, Mayor
25
26 ATTEST:
27
28
LORRAINE M. WOOD, City Clerk
(SEAL)
-3-
Recorded at request of:
Clerk, City Council
City of Carlsbad
When recorded return to:
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: City Attorney
(Space above for Recorders Use Only)
This document is exempt from the payment of
a recording fee pursuant to Government Code
Section 6103.
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF CARLSBAD
and
POSEIDON RESOURCES (CHANNELSIDE) LLC
Exhibit X-1
September 9, 2009
cument -property
TABLE OF CONTENTS
1 DEFINITIONS AND EXHIBITS 2
1.1 Definitions* 2
1.2 Exhibits..^ 7
2 GENERAL PROVISIONS §8
2.1 Binding Effect of Agreement-8 8
2.2 Legal Interest in Property-^ 8
2.3 Term-€ 8
2.4 Sale, Transfer or Assignment^ 8
2.5 Amendment or Cancellation of Agreement-Q 11
2.6 Termination-^ 11
2.7 Liability^ 11
2.8 Compliance With Environmental Law-4-Q 12
3 DEVELOPMENT OF THE PROJECT 4012
3.1 Permitted Uses-4Q 12
3.2 Vested Riahts^Q 12
3.3 Effect of Agreement on Land Use Regulations-44 13
3.4 Timing of Development-44- 13
3.5 Changes and Amendments-44 13
3.6 Reservations of Authority-43- 14
3.7 Public Works-43 15
3.8 Provision of Real Property Interests by the City-4S 15
3.9 Regulation by Other Public Agencies-44 16
3.10 Tentative Tract Map Extension-44 16
3.11 Poseidon Obligation to Obtain and Maintain Insurance^! 16
4 PUBLIC BENEFITS 441S
4.1 lntent-44 16
4.2 Mitigation Measures and Fees-44 16
4.3 Dedications-45 17
5 FINANCING OF APPURTENANT FACILITIES; OTHER PUBLIC
FINANCING; USE OF PUBLIC RIGHTS OF WAY 4MB
5.1 Appurtenant Facilities-46 18
5.2 Other Public Financing-48 18
5.3 Use of Public Rights of Wav4€ 18
6 ANNUAL REVIEW 4S25
6.1 Periodic Review-46 23
6.2 Opportunity to beg§ Heard-4^ 23
6.3 Information to feeBe Provided Poseidon-4? 24
7 INCORPORATION AND ANNEXATION 4724
7.1 Intent47 24
7.2 lncorporation-47 24
7.3 Annexation^? 24
8 DEFAULT AND REMEDIES 4^24
8.1 Remedies in General^ 24
property-mtme.-
8.2 Termination by City4£. The City may terminate this Agreement upon a terminatioi
8.3 Liquidated Damages for Poseidon's Failure to Amend This
Agreement Upon Relocation of Plant Facilities-4§ 25
8.4 Specific Performance-^ 25
8.5 Release and Reservation-49 26
8.6 Termination^ Agreement for Default of Poseidon-4^^^^. ^^25
8.7 Termination of Agreement for Default of the City-20 27
8.8 Rights, Remedies for Negligence, Willful Misconduct-2Q 27
9 THIRD PARTY LITIGATION; INDEMNIFICATION 2Q2Z
9.1 General Plan Litigation^Q 27
9.2 Third Party Litigation Concerning Agreement-20 27
9.3 Breaches of Agreement; Property Damage, Bodily Injury or Death
24 28
9.4 Indemnification Procedure-24 28
9.5 Survival-24 29
10 MORTGAGEE PROTECTION 2222
11 MISCELLANEOUS PROVISIONS 22-29
11.1 Recordation of Agreement-22 29
11.2 Further Actions-22 30
11.3 Amendment-22 30
11.4 Entire Agreement-23 30
11.5 Notices-23 30
11.6 Controlling Law-2£ 31
11.7 Headinas-23 31
11.8 Cumulative Rights; Waiver-23 31
11.9 Liberal Construction-24 31
11.10 Severabilitv~24 31
11.11 Good Faith and Fair Dealina-24 31
11.12 No Third Party Beneficiaries-24 31
11.13 Execution in Counterparts 2432
11.14 Time of the Essence-24 32
11.15 Number, Gender-25 32
11.16 Relationship-25 32
11.17 Joint and Several Obligations-2§ 32
11.18 Force Maieure-2§ 32
11.19 Mutual Covenants^ 32
11.20 Successors in lnterest-25 33
11.21 Jurisdiction and Venue-25 33
11.22 Project as a Private Undertaking^ 33
11.23 Eminent Domain-26 33
11.24 Agent for Service of Processes 33
11.25 Authority to Execute-2€ 33
11.26 Commission Approval Reauired-2£ 34
11.27 Approval Procedure-26 34
11
document-property
n
AMENDED AND RESTATED
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, et seq. 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 certain 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 specifically 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, after
making appropriate findings, certified the Environmental Impact Report 03-05 for the
Project, dated , 2006, under the provisions of CEQA; and,
WHEREAS, by Council Resolution No. . the City Council, after
making appropriate findings, approved the Addendum to Environmental Impact
Report 03-05 for the Project: dated . 2009 under the provisions of
fewer! I'nkiiowti document property fWH
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
tbisa development agreement on June 20, 2006, which was submitted for
consideration with the Approval Ordinance: and.
WHEREAS, subsequent to the Citv Council's adoption of the Approval
Ordinance, but prior to the Effective Date, the parties desired to amend and
restate in its entirety the development agreement approved by the Approval
Ordinance to clarify certain rights and obligations concerning Poseidon's use of
Public Wavs: and.
WHEREAS, pursuant to the Amended Approval Ordinance, the City
Council approved this amended and restated Agreement; and,
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 orderly development of the Project, ensure progressive installation of necessary
improvements, provide for public services appropriate to the development of the Project,
and generally serve the purposes for which development agreements under Sections
65864, et seq. 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:
1.1.1 -"Agreement-" means this Amended and Restated
Development Agreement.
1.1.2 "Agreement Date" means the date this Agreement is fully
executed by the parties.
ii document-property ninne*
1.1.3 "Amended Approval Ordinance" means the City Ordinance
No. . which became effective on . 2009. approving
this Agreement.
1.1.4 1.1.3 "Approval Ordinance" means the City Ordinance No.
^NS-807, which became effective on , 2006. approving this
AgreementJuly 20, 2006, approving the development agreement submitted
therewith.
1.1.5 "Approved Public Ways" means, subject to modification in
accordance with Section 5.3.3 hereof, the Public Ways described on Exhibit "F"
attached hereto.
1.1.6 4r474-"Appurtenant Facilities" means transmissionProduct Water
distribution assets, whether or not located at the Power Plant, consisting of
appurtenant and ancillary facilities, including without limitation (a) pipelines, pump
stations and other facilities within the City that are necessary or convenient for the use,
conveyance, storage, and distribution of desalinated seawater, and (b) such incidental
appurtenant and ancillary facilities as are located in the Cities of OceansidejSan
Marcos or Vista, California.
1.1.7 1.1.5 "Cabrillo" means Cabrillo Power I, LLC, a Delaware limited
liability company, its successors and assigns, and the successors in interest to all or
any part of Cabrillo's interest in the Property.
1.1.8 1:1,6"CEQA" means the California Environmental Quality Act,
California Public Resources Code Sections 21000 etseq.
1.1.9 1.1.7 "City-" means the City of Carlsbad, California, a municipal
corporation and a general law city formed under the laws of the State of California.
1.1.10 1.1.8 "City Council" m'eans the duly elected members of the City
Council of the City, as those members may from time to time be elected.
1.1.11 "City Engineer" means the City Engineer of the City.
1.1.12 "Citv Indemnitees" means the Citv Council, officers, agents,
employees and independent contractors of the City.
1.1.13 "City Manager" means the City Manager of the City.
1.1.14 "City Planning Director" means the Planning Director of the
Citv.
1.1.15 1.1.9 "Code" means the California Government Code.
1.1.16 4r4-r4£-"Commission" means the California Coastal Commission.
1.1.17 1.1.11 "Default" 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 (cjj/vith respect to the City, any Event of Default with respect to the
District under the Water Purchase Agreement.
rtinkiiowii document property-mtme.-
1.1.18 1.1.12 "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. -"Development-" does not include the maintenance, repair, reconstruction
or redevelopment of any building, structure, improvement or facility after the
construction and completion thereof.
1.1.19 4T4r4£-"Development Approvals"" means all permits and other
entitlements for use, subject to approval or issuance by the City, the RDA or the
Commission, as applicable, in connection with: (ia) Development of the portion of the
Property subject to the Leasehold and (Jib) the Appurtenant Facilities, including, but not
limited to:
(afProject
(bfPrecise Development Plan (POP 00-02|B1) and any
amendments thereto;
(3) (ef-Coastal Development Permit;
(4) (4)-Redevelopment Permit and any amendments thereto
as of the date of the Amended Approval Ordinance:
(5) (e)-lmprovement Plans;
(6) (f)-Grading permit(s);
(7) (§)-Habitat Management Plan Permiti
(h) Encroachment Permit(s) and anv amendments thereto as
of the date of the Amended Approval Ordinance:
(8) (l)-Easements and Rights of Way Permits;
HI Right of Way Permit:
(10) {4>Haul Route Permit;
(11) Oversize Load Permit:
(12) (k)-This Agreement^ and any amendments thereto as of
the date of the Amended Approval Ordinance:
(13) (l)-Special Use
(14) Building Permit(s).
1.1.20 4r4r44-"Development Plan"" means the Existing Development
Approvals and the Existing Land Use Regulations applicable to Development of the
Project on the portion of the Property subject to the Leasehold.
»knowti document
1.1.21 1.1.15 "District" means the Carlsbad Municipal Water District, a
municipal water district.
1.1.22 1.1.16 "Effective Date-" means the last to occur of the following:
(ia) the date the Amended Approval Ordinance becomes effective, (ttfe) the date that
the Agreement is fully executed by the parties, (mg) the date the Commission approves
this Agreement, or (ivd) the date Cabrillo has provided the consent attached hereto as
Exhibit "A". '1
1.1.23 "Encroachment Application" means an application
submitted to a public agency, other than the Citv or the District, for an
encroachment permit to permit excavation in Public Ways.
1.1.24 1.1.17 "Existing Development Approvals-" means all
Development Approvals approved or issued prior to the Agreement Date. Existing
Development Approvals include the approvals incorporated herein as Exhibit -^D-" and
all other approvals which are a matter of public record on the Agreement Date.
1.1.25 1.1.18 "Existing Land Use Regulations-!! means all Land Use
Regulations in effect on the Agreement Date. Existing Land Use Regulations include
the Land Use Regulations incorporated herein as Exhibit -^E-" 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.
1.1.26 "Golf Course" means that certain municipal golf course,
commonly known as The Crossings at Carlsbad, or The Crossings, located in the
area bounded by Faraday Avenue and Cannon Road on the North, Palomar
Airport on the East. Palomar Airport Road on the South, and Hidden Vallev Road
on the West.
1.1.27 "Indemnified Party" means the City or the Citv Indemnitees.
where the context so requires.
1.1.28 "Joint Powers Authority" means any joint powers authority
formed under Section 6500 et seq. of the Code.
1.1.29 1.1.19 "Land Use Regulations-" 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.
1.1.30 1:4:20 "Lease" means that certain Ground Lease and Easement
Agreement, dated July 11, 2003, and entered into by and between Poseidon and
Cabrillo—, as amended and restated on . 2009.
1.1.31 1.1.21 "Leasehold" means Poseidon's interest in a portion of the
Property under the terms and conditions of the Lease.
1.1.32 "Memorandum" means a short form of this Agreement, in
recordable form.
'nlinown documentpFaperty
^^
1.1.33 1.1.22 "MGD" means million gallons per day.
1.1.34 1.1.23 "Mortgagee-!! means a mortgagee of a mortgage, a
beneficiary under a deed of trust or any other security-device lender, and their
successors and assigns.
1.1.35 1.1.24 "Plant Facilities" means production assets consisting of a
reverse-osmosis seawater desalination plant.
1.1.36 1.1.25 "Police Power Regulations" means any City ordinance,
resolution, code, rule, 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.
1.1.37 1.1.26 "Poseidon-" means Poseidon Resources (Channelside)
LLC, a Delaware limited liability company, its successors and assigns, and the
successors in interest to all or any part of Poseidon's interest in the Project.
1.1.38 1.1.27 "Power Plant" means the Encina Power Station owned and
operated by Cabrillo.
1.1.39 1.1.28 "Product Water" means desalinated seawater produced
from the Project.
1.1.40 1.1:29 "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: (4a) the Plant Facilities; and (2-b) the
Appurtenant Facilities; provided, however that if the District elects to own or have a
jjoint pEowers authority 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.
1.1.41 1.1.30 "Property"" means the real property described on Exhibit
^B^ and depicted on Exhibit ^C^ to this Agreement.
1.1.42 "Public Wavs" means the surface of and space below, any
public freeways, highways, streets, wavs. alleys, and all other dedicated rights-of-
way or easements, and places and other City owned property as the same now or
may hereafter exist within the Citv. Notwithstanding the foregoing, for purposes
of this Agreement and the rights granted herein, in no event shall Public Ways
mean any rights of way on, in, under, about or in anv wav relating to the Golf
Course.
1.1.43 1.1.31 "RDA" means the Carlsbad Housing and Redevelopment
Commission.
uknwvii document property
1.1.44 1.1.32 "Reservations of Authority-" means the rights and
authority excepted from the assurances and rights provided to Poseidon under this
Agreement and reserved to the City under Sections 3.6 through 3.6.4 of this Agreement.
1.1.45 "Riaht-of-Wav Right" means the nonexclusive right to use
the Approved Public Wavs for the purpose of constructing, maintaining, repairing
and operating the Appurtenant Facilities for the delivery of Product Water from
the Plant Facilities to customers (which may include, but are not limited to, the
District) through the use of the Appurtenant Facilities.
1.1.46 "Right-of-Way Term" means that period commencing with
the grant of the Riaht-of-Wav Right on the Effective Date and continuing for a
period of forty (40) years thereafter.
1.1.47 4r4v33-"Subsequent Development Approvals-" means all
Development Approvals required subsequent to the Agreement Date in connection with
development of the Project.
1.1.48 1.1.34 "Subsequent Development Exaction-" means any
requirement of the City in connection with or pursuant to any Subsequent Land Use
Regulation or Subsequent Development Approvals for the dedication of land, the
construction of improvements or public facilities, or the payment of fees in order to
lessen, offset, mitigate or compensate for the impacts of development on the
environment or other public interests.
1.1.49 1.1.35 "Subsequent Land Use Regulations-" means any Land
Use Regulations adopted and effective after the Agreement Date.
1.1.50 "Vault Structures" means such structures that permit
periodic or regular access, for routine maintenance or otherwise, for flow control
facilities, pressure regulators, surge control and similar facilities.
1.1.51 1.1.36 "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 "^B"!! - Legal Description of the Property.
Exhibit -^C-" - Map depicting Property and its location.
Exhibit -^D-" - Existing Development Approvals.
Exhibit "'lE-^ - Existing Land Use Regulations.
Exhibit "F" -- Approved Public Wavs.
Exhibit "G" -- Quitclaim Deed.
! linkiiown documentproperty
2 GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. This Agreement runs with, and is
binding upon, the Leasehold^ and the Project and the Property. 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 Legal Interest in Property. 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 Agreement shall commence on the Effective Date
and shall continue for a period of forty (40) 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 Assignment.
2.4.1 Right to Assign. 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:
(aHlLEither:
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
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
Property and the prior written consent of the City is obtained; or
sa'e> transfer or assignment is made in
connection with a permitted assignment of the Water Purchase Agreement; and
proposed assignee has provided the City Manager with
an executed agreement, in a form reasonably acceptable to the City, providing therein
that such purchaser, transferee or assignee expressly and unconditionally assumes all
the duties and obligations of Poseidon under this Agreement, including but not limited to
the financial obligations of Poseidon set forth herein.
sale, transfer or assignment not madejn 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
8
Erf'OFMJnkiwwn-docum«ftt preperty Bftntei
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.
(d) Poseidon may transfer or assign all or a portion of the
Right-of-Wav Right, and Poseidon's obligations under this Agreement with
respect to the Appurtenant Facilities, to a Joint Powers Authority, provided that
the Citv Engineer approves such transfer or assignment in writing. As part of this
transfer or assignment, the Citv mav. but is not obligated to. release Poseidon
from its obligations under this Agreement for such Appurtenant Facilities as mav
be assigned. Poseidon may appeal any disapproval by the City Engineer
regarding such transfer or assignment of the Right-of-Way Right in accordance
with the City's then-existing procedure for appealing such decisions.
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
and/or 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 which are 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 mitigation fee and the recordation of this Agreement reflecting the mitigation fee
obligation, which runs with the PropertvPoseidon's Leasehold and the Project under
this Agreement, constitute a compensable interest in the Property held by the City
and/or the RDA (the "City/RDA Property Interest"). If at any time during the term of this
Agreement: (ta) 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, (tibj Poseidon is no longer obligated to pay
the mitigation fee pursuant to Section 4 of this Agreement^ and (iwcj the acquiring party
does not agree to pay such mitigation fee, the provisions of this Section 2.4.2 shall
apply.
(1) (a)-lf a court or jury renders a total, undivided award of
compensation in a condemnation action without apportioning the award between the
Poseidon Property Interest and the City/RDA 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
and/or 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 and/or RDA shall
present evidence of the value of their and/or its interest as described in subsection
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 and/or 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 and/or the RDA, on the one hand, or
Poseidon, on the other hand).
(te)-lf there is a voluntary conveyance by Poseidon of the
Poseidon Property Interest or any part thereof to a public or quasi-public agency or
E«'or! linfcnewn documeftt-property «»n»e;
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 and/or 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).
(3) (e)-lf 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 and/or the RDA, on the one hand, and Poseidon, on the other hand, the parties
agree that the value of the City/RDA 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 and/or 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.
(4) (df-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.
(5) {e)-This Section 2.4.2 shall not apply to any Condemning
Agency that has an agreement with the City and/or 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).
(6) (f)-lf (i§) 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 (al)
10
Ki-ror! I'nfctHjwH <lecume»t-property Bi
or (fe2) above, (tih) the Condemning Agency does not have an agreement with the City
and/or the RDA with respect to the payment of a mitigation fee, pc) the Condemning
Agency nonetheless pays some or all of the mitigation fee required by Section 4 of this
Agreement, (ivd) the City or the RDA has received payment for the City/RDA Property
Interest pursuant to Section 2.4.2 (al) or (b2) above and (v§) in the case of an award
being apportioned pursuant to Section 2.4.2(al) 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 and/or RDA receives
such payments, until such time as Poseidon has received an amount equal to the
amount paid to the City and/or RDA pursuant to Section 2.4.2 (al) or (b2) above set
forth.
2.4.3 Subsequent Assignment. 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 terms and
conditions of this Section.
2.5 Amendment or Cancellation of Agreement. This Agreement may be
amended or cancelled in whole or in part only by written consent of all parties in the
manner provided for in Code Section 65868. This provision shall not limit 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 Amended Approval Ordinance;
(c) The adoption of a referendum measure repealing the Amended
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:
11
Ewer! linkiiown-documefttproperty rwrae;
(a) (t)-A sale, transfer or assignment of this Agreement pursuant to
Section 2.4.1;
(b) {^Acquisition of Poseidon's interest in the Project as described in
Section 2.4.2; or
(c) p)-Poseidon 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 Compliance With Environmental Law. Poseidon shall operate and
maintain the Project in accordance 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 Rights. 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
notwithstanding the occurrence of any of the following after the Agreement Date: (a) any
growth control measure or any development moratorium, 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 otherwise 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 emergency situations (as described in
Section 3.2.1, below). The Project shall remain subject to all Subsequent Development
Approvals required to complete the Project as contemplated by the Development Plan.
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3.2.1 Exceptions to Vested Rights. Notwithstanding any provision to
the contrary contained herein, and without limiting the generality of Section 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 management issues); (ii) such Emergency Measure arises out of an emergency
situation, as declared 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 Measure-Js^ns based upon its terms or its effect as applied, does not
apply exclusively or primarily to the Project.
3.3 Effect of Agreement on Land Use Regulations. Except as otherwise
provided under the terms of this Agreement, including without limitation Section 3.2.1
above, the rules, regulations and official policies governing permitted uses of the portion
of the Property subject to the Leasehold, the density and intensity of use of the portion
of the Property subject to the Leasehold, the maximum height and size of proposed
buildings, and the design, improvement and construction standards and specifications
applicable to development of the Project shall be the Existing Land Use Regulations. In
connection with any Subsequent Development Approval, the City shall exercise its
discretion in accordance with the Development Plan, and as provided by this Agreement
including without limitation Section 3.2.1 hereof. The City shall accept for processing,
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 Timing 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 government agencies, availability of subsidies from
Metropolitan Water District of Southern California or others, obtaining water supply
contracts with purchasers of Product Water equal to output of the Project, interest rates,
construction completion and other similar factors. Since the California Supreme Court
held in Pardee Construction Co. v. City 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 parties-' 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 Changes 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
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approved, any such change in the Existing Development Approvals shall be
incorporated herein as an addendum to Exhibit -"D," 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) Increase the density or intensity of use of the Project as a whole;
or,
(c) Increase the maximum height and size of permitted buildings; or,
(d) Increase the production capacity of the Plant Facilities; ort
(e) Delete a requirement for the reservation or dedication of land for
public purposes within the Property as a whole; or,
(f) Constitute a project requiring a subsequent or supplemental
environmental impact report pursuant to Section 21166 of the Public Resources Code.
3.6 Reservations of Authority.
3.6.1 Limitations. Reservations and Exceptions. Notwithstanding any
other provision of this Agreement, the City shall have the following Reservations of
Authority with respect to application of Subsequent Land Use Regulations to the
Development of the Project.
(a) Processing fees and charges of every kind and nature
imposed by the City to cover the estimated and/or 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!'s 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
14
ment-property Htmnes
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.
(f) 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 Project.
3.6.2 Subsequent Development Approvals. 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 by 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 Intent. 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 Property Interests by 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
15
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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 property 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 property 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 Regulation by Other Public Agencies. 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
development 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.
3.10 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.
3.11 Poseidon Obligation 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 Mitigation Measures and Fees.
4.2.1 Payment: 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 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). Notwithstanding the foregoing, such
mitigation fee shall be waived so long as Poseidon or its successors in interest shall pay
16
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and continue to pay, as and when due, property taxes due under state law for the
construction, ownership, use and occupancy of 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 Discriminatory 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 Leasehold and 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 Preliminary Security. The performance of the terms and
conditions of Section 4.2.1 shall be secured by a deed of trust encumbering the
Leasehold and the Project. The deed of trust shall be: (ia) in a form reasonably
acceptable to the parties, (wb) be recorded within ninety (90) days after the parties
agree upon the form thereof and (we) 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 Accounting Requirements. 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 etseq. of the Code.
4.3 Dedications. Poseidon acknowledges that one of the Development
Approvals other than this Agreement shall require Cabrillo, at the commencement of
construction, to dedicateprior to the issuance of precise grading or building
permits, to make an offer of dedication of real property to the City as described in
Exhibit 5 of the Precise Development Plan (POP 00 02).Condition 23 of Planning
Commission Resolution No. 6632.
17
erty nftmei
5 FINANCING OF APPURTENANT FACILITIES: OTHER PUBLIC
FINANCING: USE OF PUBLIC RIGHTS OF WAY.
5.1 Appurtenant Facilities. The City will use commercially reasonable efforts
to cooperate with Poseidon in obtaining subsidies, grants or external funding, including
without limitation funds available under Proposition 50, to pay for the construction 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 Rights of Way. TbeExcept as set forth in Section 5.3.2.
the City shall provide without charge, and shall cause any governmental agency under
its control to provide without charge, Poseidon access to any public rights of wayPjjbJjc.
Ways 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 public rights of wayPublic Ways already in existence or planned
as of the Effective Date as described in Exhibit 3.5 of the final Project EIRJFJtQJtbJs.
Agreement, or such additional Public Ways as approved by the Citv Engineer as
set forth in this Agreement, and shall not apply to any rights of way on, in, under,
about or in any way relating to that certain real property commonly known as the
Carlsbad Municipal Golf Course, located in the area bounded by Faraday Avenue and
Cannon Road on the North, Palomar Airport on the East, Palomar Airport Road on the
South, and Hidden Vallev Road on the Westthe Golf Course. 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 public rights of wayPublic Ways for the Appurtenant Facilities to deliver
Product Water from the Project to any purchaser of Product Water other than the
District. Further, nothing set forth in this Section 5.3 shall permit Poseidon access to
public rights of way without first obtaining all necessary permits for work and otherwise
in accordance with the Developmont Plan.The parties acknowledge that: (1)
Poseidon's use of and access to the Public Ways is for the public purpose of
delivery of wholesale product water to the District and other public agencies; and
(2) such use and access is integral to the District's public purpose of providing
water to the District customers under Section 21.20 of the Water Purchase
5.3.1 Riaht-of-Wav Term. The Riaht-of-Wav Right is granted to
Poseidon for the Right-of-way Term: provided, however, that if the Appurtenant
Facilities cease to operate and are abandoned for a period that exceeds three (3)
years, then the Citv shall have the right to give notice to Poseidon that the City
intends to terminate this Agreement. If the Appurtenant Facilities are not
18
nkHowH deciHH«ttt-property
operating within ninety IBO) davs after Poseidon's receipt of notice of the City's
intent to terminate this Agreement pursuant to the preceding sentence, then the
City shall have the right to terminate this Agreement bv delivery of written notice
to Poseidon. For the avoidance of doubt, the Appurtenant Facilities shall not be
deemed to have been abandoned so long as Poseidon is diligently seeking to
repair, modify or maintain the Plant Facilities and/or the Appurtenant Facilities. If
Poseidon abandons or is deemed to have abandoned the Appurtenant Facilities,
then: (a) all right, title and interest in and to the Appurtenant Facilities
immediately shall transfer to and vest in the City; and (b) Poseidon hereby
appoints the Citv Manager as Poseidon's attorney in fact to execute and record.
on Poseidon's behalf, a quitclaim deed, substantially in the form of Exhibit "G"
attached hereto, transferring all right, title and interest in and to the Appurtenant
Facilities to the City.
5.3.2 Fee for Right-of-Way Right. The rights and privileges herein
granted are upon the express condition that Poseidon, as consideration therefor
and as compensation for the use of the Approved Public Wavs as herein
authorized and permitted, shall pav an annual fee to the City of Two Thousand
Five Hundred Dollars ($2,500.00), commencing on the Effective Date and
continuing on the same day of each consecutive year thereafter.
5.3.3 Modification of Public Ways. The Approved Public Ways
mav be modified from time to time, at Poseidon's request, to include other Public
Wavs so long as: (a) such modifications are permitted under the Development
Approvals and (b) such modifications have been approved in writing by the City
Engineer. For purposes of obtaining written approval from the City Engineer,
Poseidon shall submit proposed modifications to the Approved Public Ways
(including delivery of an updated Exhibit "F" hereto reflecting the proposed
modifications and such other maps, descriptions and other information as may
be reasonably requested bv the Citv Engineer) directly to the Citv Engineer. The
City Engineer promptly shall approve or disapprove of any proposed
modification; provided, however, the City Engineer shall not unreasonably
withhold or condition its approval; provided further, however, that if the City
Engineer does not provide its approval or disapproval of a proposed modification
within thirty (30) days of submission of the same by Poseidon, then such
proposed modification shall be deemed disapproved for all purposes. Upon the
City Engineer's approval of any modifications to the Approved Public Ways, the
updated Exhibit "F" delivered in connection therewith automatically shall become
Exhibit "F" hereto for all purposes. Unless otherwise required by law, as
determined in the City's reasonable discretion, a change to the Approved Public
Wavs described in Exhibit "F" shall not require an amendment to this Agreement.
If the Citv Engineer disapproves or is deemed to have disapproved of a proposed
modification to the Approved Public Wavs, then the Citv Engineer shall provide
Poseidon, in reasonable detail, its reasons for such disapproval and permit
Poseidon thirty (30) days to cure the same. If Poseidon attempts to cure the
disapproval of the proposed modification to the Approved Public Ways, then the
City Engineer promptly shall approve or disapprove of any proposed cure;
provided, however, the Citv Engineer shall not unreasonably withhold or
condition its approval: provided further, however, that if the Citv Engineer does
not provide its approval or disapproval of a proposed cure within thirty (30) days
of submission of the same by Poseidon, then such proposed cure shall be
deemed disapproved for all purposes. If the Citv Engineer disapproves or is
deemed to have disapproved of Poseidon's attempt to cure, then Poseidon may
19
Error! linteiown document-property »«mft
appeal such disapproval to the Citv Manager in accordance with the City's then-
existing procedure for appealing such decisions.
5.3.4 Recordation of Memorandum Against Approved Public
Wavs. After the final determination of the Approved Public Wavs. Poseidon shall
prepare the Memorandum, which shall be sufficient to provide constructive notice
to third parties of Poseidon's rights in the Approved Public Ways under Section
5.3 hereof. Poseidon shall submit the draft Memorandum to the City for its review
and approval, which shall not be unreasonably withheld, conditioned or delayed.
If the Citv does not approve the draft Memorandum, the Citv shall promptly notify3oseidon of the reason(s) for such disapproval. Upon the City's approval of the
Memorandum, the City shall cause an authorized representative of the City tom
£1execute, and cause to be acknowledged, the Memorandum. Poseidon shall be
authorized to record the Memorandum in the official records of the County of San
Dieao. State of California. In the event of changes to the Approved Public Ways,
Poseidon may prepare an amendment to the Memorandum from time-to-time, as
appropriate, to reflect such changes. Poseidon shall submit the amendment to
the Memorandum to the Citv for review, approval, execution, acknowledgment
and recordation in the same manner as the Memorandum
5.3.5 Reservation of Rights. In addition to any rights specifically
reserved to the City by this Agreement, the City reserves to itself every right and
power vested in the City by applicable law, as well as the Charter of the City and
anv ordinance adopted bv the Citv Council, but only to the extent the exercise of
such rights shall be consistent with the Poseidon's rights, and the City's
obligations, under this Agreement.
This Agreement does not relieve Poseidon from any of its
obligations to comply with any applicable law that is of general application and
related to work in Citv streets, including, but not limited to. anv law that applies to
the use, removal or relocation of property in Citv streets, except as specifically
prescribed herein. Further, nothing set forth in this Section 5.3 shall permit
Poseidon access to Public Ways without first obtaining all necessary permits for
work, including without limitation Right of Way Permits. Haul Route Permits.
Oversize Load Permits, and otherwise in accordance with the Development Plan.
This Section 5.3.4 is not intended to, and shall not be construed so
that it does, limit either the Parties' rights and obligations under this Agreement,
or their rights and obligations under applicable law related to the abrogation of
contracts by the Citv or other governmental entities.
5.3.6 Riaht-of-Wav Permit. Nothing set forth in this Section 5.3
shall permit Poseidon access to Public Wavs or access to property of private
utilities or public agencies other than the City or the District, without first
applying for and obtaining a Right-of-Way Permit from the Citv in accordance
with City Municipal Code Chapter 11.16, as in existence on the Agreement Date,
and all other necessary permits that are more particularly described in Section
1.1.19 or that are issued by the State of California or other private or public entity
and that are applicable to the area where work will be occurring; provided,
however, that, except as permitted in this Agreement, the City shall not charge an
additional fee or cost to Poseidon to obtain the Riaht-of-Wav Permit or such other
permits described in Section 1.1.19. Poseidon may submit separate applications
for separate Right-of-Way Permits and such other permits described in Section
1.1.19. Further, the Citv has determined that an encroachment agreement
20
'. Unknown document property
described in Municipal Code Chapter 11.16 is not and will not be necessary in
order for Poseidon to obtain a Riaht-of-Wav Permit to access the Public Wavs or
otherwise exercise its rights under this Agreement.
As part of the Riaht-of-Way Permit process. Poseidon acknowledges
that such Right-of-Wav Permit shall provide that Poseidon shall submit to the
City, prior to any construction of any facilities covered bv the Right of Wav
Permit, a pipeline construction plan, which shall include the following required
items:
(a) Bonding, contractor insurance requirements, and
contractor licensing which meets then-current City requirements:
(b) Detailed construction inspection requirements for
replacement of City facilities, soil compaction, and Citv inspection of Appurtenant
Facilities: and
(c) Detailed conditions for traffic control and right-of-way
restoration consistent with then-current mitigation measures required and
adopted by the City.
5.3.7 Construction Practices.
(a) Standards. Poseidon shall perform all construction and
maintenance of Appurtenant Facilities that are located within the Public Ways in
accordance with the City's Municipal Code, state and federal laws and all
applicable industry construction and maintenance practices and procedures,
subject to the following terms and conditions: (1) the encroachment shall be
installed and maintained in a safe and sanitary condition at the sole cost, risk,
and responsibility of Poseidon and its successors in interest: (2) in accordance
with Article IX hereof, Poseidon, and after an assignment of the Right of Wav
Right pursuant to Section 2.4.1(d). Poseidon's assignee, at all times shall save
indemnify, hold harmless and defend the City and the Citv Indemnitees from anv
and all claims, demands, losses, damages, or expenses resulting from the
construction, maintenance, use, repair or removal of the Appurtenant Facilities
installed hereunder, including any loss, damage, or expense arising out of loss or
damages to property and iniurv to or death of persons: and (3) whatever rights
and obligations are or were acquired bv the Citv with respect to the applicable
Public Ways shall remain and continue in full force and effect and shall in no way
be affected bv City's grant of permission to construct and maintain the
Appurtenant Facilities. Poseidon shall follow all applicable construction
standards and plan standards and specifications as shown in the City of Carlsbad
Engineering Standards Volumes 1, 2. 3 and 4. latest edition. Poseidon further
shall submit a TIER 3 SWPPP, in compliance with current requirements and
provisions established bv the San Diego Regional Water Quality Control Board,
and a Storm Water Management Plan, in compliance with Citv of Carlsbad
Standard Urban Storm Water Mitigation Plan, to the satisfaction of the Citv
(b) Vault Structures. All Vault Structures located within the
Citv or the District shall be located outside of Public Ways, where possible, and in
anv event outside of traveled wavs. If Poseidon shall identify anv private
property that is required for a facility needing a Vault Structure, Poseidon and the
City shall work cooperatively to obtain such private property, on a commercially
21
Unknown documentproperty mn»e;
reasonable basis, from the ownerfs) thereof, at Poseidon's expense. The
procedure set forth in Section 3.8 of this Agreement shall apply to the acquisition
of private property for Vault Structures.
(c) No Burden on Public Ways. Poseidon shall not erect,
install, construct, repair, replace or maintain the Appurtenant Facilities in such a
fashion as to unduly burden the present or future use of the Public Wavs. If the
Citv in its reasonable Judgment determines that anv portion of the Appurtenant
Facilities is imposing an undue burden, Poseidon at its expense, shall modify the
Appurtenant Facilities, or take such other actions as the City may reasonably
determine are in the public interest, to remove or alleviate the burden, and
Poseidon shall do so within the time period reasonably established by the City
and at no cost to the City.
fd) Restoration of Property. At its sole cost and expense,
Poseidon shall restore, to the City's and the District's then-existing standards
(including without limitation to anv hereafter adopted trench cut ordinance), any
portion of the Public Ways that is damaged bv the construction, operation, repair,
maintenance or removal of the Appurtenant Facilities substantially to the same or
better condition than that which existed prior to the disturbance. Poseidon shall,
at its sole cost and expense, restore and replace any other property, real or
personal, disturbed, damaged or in any way injured by or on account of
Poseidon, or bv its acts or omissions, to substantially the same or better
condition as such property was in immediately prior to the disturbance, damage
or injury. Without limiting the generality of the foregoing, Poseidon shall be
responsible for restoration and repair of failed trenches, damaged streets, curbs
and gutters, driveways, traffic control loop detectors and other public facilities,
all to the satisfaction of the City Engineer, and shall warrant said work for its
effective life. Such restoration required by this Section 5.3.6fdl shall start
promptly but no more than thirty (30) davs after Poseidon, or any of its officers,
employees or agents, becomes aware of the problem, and shall be diligently
performed until completion.
(e) Private Property. Poseidon shall be subject to all laws
and regulations regarding private property in the course of constructing,
operating, repairing, maintaining, or removing the Appurtenant Facilities.
5.3.8 Repair Costs. Poseidon shall pav to the City on demand an
amount equal to all costs of all repairs to Citv property made necessary by any of
the operations of Poseidon under the Riaht-of-Way Right, and the Citv. at
Poseidon's sole cost and expense, shall undertake and perform such repairs to
completion. Notwithstanding the foregoing, with the City Engineer's consent,
which mav be withheld in the City Engineer's sole discretion, after obtaining all
necessary permits, and if the same can be done without undue inconvenience to
the public use of the Public Wavs, Poseidon itself mav make repairs to streets,
sidewalks, curbs and gutters, at its sole cost and expense, to the satisfaction of
the Citv Engineer and in accordance with City specifications, regulations and
applicable permits for installation and construction.
5.3.9 Possessory Interest Tax. By accepting this Agreement,
Poseidon acknowledges that notice is hereby given to Poseidon that use or
occupancy of anv public property pursuant to the authorization herein set forth
mav create a possessory interest which may be subject to the payment of
property taxes levied upon such interest. Poseidon shall be solely liable for, and
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shall pay and discharge prior to delinquency, any and all possessory interest
taxes or other taxes levied against Poseidon's right to possession, occupancy or
use of anv public property pursuant to anv right of possession, occupancy or use
created by this Agreement, and shall hold the Citv harmless, and free and clear of
anv liability for such tax. If Poseidon fails to pav and discharge prior to
delinquency, any and all such possessory interest taxes or other taxes levied,
then the Citv or the District mav. but shall not be obligated to, pay and discharge
the same, and in that event, the District may offset any such amount so paid
against amounts due from the District to Poseidon pursuant to the Water
Purchase Agreement.
5.3.10 Records. Poseidon shall prepare and furnish to the City
Manager or the City Manager's designee, in a form prescribed by the City
Manager, as-built plans for the Plant Facilities, emergency response plans
(including without limitation a hazardous materials response plan and a fire
response plan), all documents, records, reports, audits, cost-accounting,
disclosures or manuals reguired under the Water Purchase Agreement, and such
other reports with respect to Poseidon's operations, affairs, transactions, or
property as may be reasonably necessary or appropriate to the performance of
any of the duties of the City Manager or desianee in connection with this
Agreement.
5.3.11 Permits. The parties acknowledge that: (a) some public
agencies or private utilities either mav not allow a non-public agency that does
not have a franchise agreement to be the permittee of an encroachment permit or
may not allow a non-public agency to obtain necessary project permits; and (b)
as a result, Poseidon from time to time may reguest the City to execute, on
Poseidon's behalf, either Encroachment Applications, which, if approved so that
encroachment permits issue thereon, would permit the Citv or Poseidon to
excavate and construct Product Water pipelines in Public Wavs, or other permit
applications. The City is willing to execute such Encroachment Applications or
other permit applications, provided, however, that, in each such case Poseidon
shall comply with all permit and license agreement conditions, and in accordance
with Article IX hereof, in each such case Poseidon shall save, indemnify, hold
harmless and defend, at its expense, including attorneys' fees, the City and the
City Indemnitees, from and against anv and all loss, costs, fees, expenses or
liability whatsoever, including without limitation any liability for bodily injury
and/or death to anv person or damage to any property of anyone, arising out of or
based upon the issuance and/or use of each such encroachment or other permit
and the placement and subsequent operation and maintenance of said
encroachment. If such Encroachment Permit is obtained bv the City, the City, if
permitted bv the terms of the Encroachment Permit, shall allow Poseidon to act
as the City's agent for the use of any facilities or areas permitted or authorized bv
the Encroachment Permit necessary for the construction, operation, repair,
maintenance or removal of the Appurtenant Facilities in order to supply
wholesale product water to the customers of the District pursuant to the Water
Purchase Agreement.
5.3.12 Survival of Section 5.3. Unless this Agreement is earlier
terminated in accordance with Section 8 hereof, the terms and provisions of this
Section 5.3 shall: fa) survive the natural expiration of the term of this Agreement:
and fbl terminate, and be of no further force or effect, upon the expiration of the
Right-of-Wav Term.
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ErFOFM*nknowii-do«inH«ttt property
6 ANNUAL REVIEW.
6.1 Periodic Review. The City's Planning Director_CflUD£ii 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 Opportunity to beBe 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 feeBe Provided Poseidon. The City shall deposit in
the mail to Poseidon a copy of staff reports and related exhibits concerning contract
performance a minimum often (10) calendar days prior to any such review or action
upon this Agreement by the City Council.
7 INCORPORATION AND ANNEXATION.
7.1 Intent. 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 Incorporation. 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.
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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:
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:
any breach of this Agreement or for any cause of action
which arises out of this Agreement; or
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 reserving the reserved rights and remedies
described in Sections 8.5 and 8.8; or
{ttJH31_arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
(teHbJLPoseidon shall not be liable in monetary damages to City, or to any
person acting on behalf of City, and City covenants not to sue for damages or claim any
monetary damages:
(»HlLfor failure to construct and operate the Project or any breach
of this Agreement or for any cause of action which arises out of this Agreement; or
(ti}-(2Larising put of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement;
(HiH3)_prpvided, 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 &&-8.8.
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 by 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 Damages for Poseidon's Failure to Amend This Agreement
Upon 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 property that is not
encumbered by this Agreement, then Poseidon agrees to amend this Agreement in all
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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 ($15,000,000.00), to compensate the City for a portion
of the mitigation fees that would be payable pursuant to Section 4 of this Agreement.
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 extremely difficult for the City 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 8.1(b)(ti4)3) and 8.3 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:
(a) (t)-Mpney damages are unavailable against City, or against
Poseidon except as provided herein;
(b) (lifDue to the size, nature and scope of the Project, it will not be
practical or possible to restore the portion of the Property subject to the Leasehold to its
preexisting condition once implementation of this Agreement has begun. After such
implementation Poseidon may be foreclosed from other choices it may have had to
utilize the portion of the Property subject to the Leasehold and provide for other
benefits. Poseidon has invested significant time and resources and performed
extensive planning and processing of 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 non-damages remedies, including the
remedy of specific performance of this Agreement.
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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 property owner.
8.6 Termination of Agreement for Default of Poseidon. The City may
terminate this Agreement for any Default by Poseidon; provided, however, that, except
as set forth below in the next clause of this Section 8.6, the City may terminate this
Agreement pursuant to this Section for a monetary default if Poseidon fails, neglects
or refuses to make anv payment within fifteen (15) davs of the date due; provided
further, however, that the Citv mav terminate this Agreement pursuant to this
Section for non-pavment of the annual fee required under Section 5.3.2 hereof
only after providing written notice to Poseidon of such non-payment and if
Poseidon fails to pay such fee within thirty (30) davs after Poseidon's receipt of
such notice; and provided further, however, that the Citv mav terminate this
Agreement pursuant to this Section for a non-monetarv default only after providing
written notice to Poseidon of Default setting forth the nature of the Default and the
actions, if any, required by Poseidon to cure such Default and, where the Default can be
cured, Poseidon has failed to take such actions and cure such Default within sixty (60)
days after Poseidon'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, 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 Agreement for Default of the Citv. 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 Rights. Remedies for Negligence. Willful Misconduct. Nothing in this
Agreement shall be deemed to waive or limit any rights and remedies that the parties
otherwise 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.
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property Btuftei
9 THIRD PARTY LITIGATION: INDEMNIFICATION.
9.1 General Plan Litigation. 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 efor 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 Party Litigation Concerning Agreement. In the event of any legal
action instituted by a third party (not a party to this Agreement) or any governmental
entity 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
expenses, including reasonable attorneys' fees and costs, arising out of any legal action
instituted by such third party (not a party to this Agreement), or other governmental
entity or official (other than 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. City shall promptly notify Poseidon of any such action and City shall
cooperate in the defense thereof.
9.3 Breaches of Agreement: Property Damage. Bodily Injury or Death. In
addition to the provisions of Section Sections 5.3.9 and 9.2 above, Poseidon shall
save, indemnify, hold harmless and defend, at its expense, including attorneys' fees, the
City, its officers, agents, employees and independent contractors (_and_the "City
Indemnitees^ from and against any and all loss, costs, fees, expenses 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 Indemnitees 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 Grtylndemnified Party pursuant to this Agreement, as a condition
thereto the Gitylndemnified Party shall give Poseidon reasonably prompt notice of any
matter for which indemnification is sought hereunder. The Gltylndemnified Party shall
cooperate in the defense of such claim (and pending assumption of defense, the City, in
28
fcrforMiiikiHwn documentproperty ttnmit.
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 Grtylndemnified
Party's reasonable out-of-pocket expenses incurred in connection with such
cooperation and such steps taken to defend itself pending Poseidon's assumption of
defense. Poseidon shall keep the Gftylndemnified Party reasonably informed as to the
status of the defense of such claim. After notice from Poseidon to the Gftylndemnified
Party of the assumption, and the defense of a claim, Poseidon shall not be liable to the
Gftylndemnified Party for any legal or other expenses subsequently incurred by the
Gftylndemnified Party 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 Gftylndemnified Party), shall
defend any such claim; provided, however, that if, in the Gftylndemnified Party's
reasonable judgment at any time, either a conflict of interest arises between Poseidon
and the Gftylndemnified Party or if there are defenses which are different from or in
addition to those available to Poseidon and/or the Gftylndemnified Party and the
representation of both parties by the same counsel would be inappropriate, then in each
such case the Gftvlndemnified Party shall have the right to employ a separate law firm
in each applicable jurisdiction (if necessary) (-"Separate Counsel""), to represent the
Gftylndemnified Party in any action or group of related actions (which 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 {Indemnified 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 Gttvlndemnified Party may defend,
compromise and settle such claim and shall be entitled to indemnification hereunder (to
the extent permitted by this Agreement). Notwithstanding the foregoing, Poseidon shall
not, without the Gftylndemnified Party's prior written consent (which 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 Gftylndemnified Party; 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 Agreement or the natural expiration of the term of this
Agreement.
10 MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit
Poseidon, in any manner, at Poseidon^s 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
29
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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 mortgage or deed of trust encumbering the
Project, or any part thereof, which has submitted 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 Poseidon!'s obligations
under this Agreement concurrently with the receipt of any such notice by Poseidon.
(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 2.4.1 (b) of this
Agreement, any Mortgagee who comes into possession of the Project, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Project, or part thereof, subject to the burdens of, and shall
be entitled to the benefit of, the terms of this Agreement.
11 MISCELLANEOUS PROVISIONS.
11.1 Recordation of Agreement. As more particularly set forth below in Section
11.27, this Agreement and any amendment or cancellation thereof shall be recorded
against the real property included in the Specific Plan Amendment areaLeasehoid 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 Agreement. 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.
30
11.5 Notices. As used in this Agreement, ""notice11" 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 served upon any party in connection with this Agreement
shall be in writing. Such notice shall be personally served, sent by facsimile, sent
prepaid by registered or certified mail with return receipt requested, or sent by reputable
overnight delivery service, such as Federal Express, and shall be deemed given: (a) if
personally served, 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 service, 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: City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: City Manager
Fax No. (760)729-9461
If to Poseidon, to: Poseidon Resources (Channelside) LLC
501 West Broadway, Suite §462020
San Diego, CA. 92101
Attn: President
Fax No.; (619) 595-7892
11.6 Controlling Law. 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 Headings. 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 Rights: 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, the term "waive" or its equivalent
must be used in such writing, and any waiver by any party of any breach of any
provision of this Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this Agreement.
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
31
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 drafted or prepared such
provision.
11.10 Severabilitv. If any provision of this Agreement shall be ruled invalid,
illegal or unenforceable, then the parties shalh (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.
11.11 Good Faith and Fair Dealing. 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 Party Beneficiaries. Except as provided in Sections 9.3 and 9.4,
and 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 Counterparts. 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.
11.14 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
-"days"" herein shall refer to consecutive calendar days. If any date or time period
provided 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.
32
ieftt property
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 Relationship. 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 employer/employee 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 Obligations. 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 Majeure. Neither party shall be deemed to be in Default where
failure or delay in performance of any of its obligations under this Agreement is caused
by an event of Force Majeure. -"Force Majeure"" 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 subsequent performance by the party
benefited thereby of the covenants to be performed hereunder by such benefited party.
11.20 Successors in Interest. The burdens of this Agreement shall be binding
upon all successors in interest to the parties to this Agreement; provided, however,
that Cabrillo shall not be considered a successor in interest to Poseidon in any
circumstance including, without limitation, the termination of the Lease, unless
Cabrillo specifically agrees in writing to be a successor. Subject to Section 2.4 of
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
equitable servitudes and constitute covenants running with the Leasehold for a time
period (the "Enforceabilitv Period") that is equal to either la} the term of the Lease
(including anv extensions of the term of the Lease), or (b) the term of this
Agreement, if but only if the Poseidon Property Interest is taken by eminent
domain or there is a voluntary conveyance, regardless of whether in lieu of or
under the threat of eminent domain, and in connection therewith the Lease is
terminated. 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 : (ax) is for the benefit of and is a burden
upon every portion of the Project and the Property subject to the Leasehold^ for the
Enforceability Period: (v) runs with the Project and the portion of the Property subject
33
t/rror! l-n
to the Leasehold and each portion thereof for the Enforceability Period; andT (ez) is
binding upon each party and each successor in interest during ownership of the Project
or the Leasehold or any portion thereof for the Enforceabilitv Period.
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 Project as a Private Undertaking. 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 Agent 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 Authority 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.
34
Ei-For!t'nknowiMle«»nient property
11.26 Commission Approval Required. This Agreement shall not become
effective unless and until it is approved by the Commission, as required by Code
Section 65869.
11.27 Approval 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 Amended Approval
Ordinance.
(c) Following adoption of the Amended 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
recorded against the real property included in the Specific Plan Amendment
afeaLeasehold by the Clerk of the City Council filing a copy of this Agreement with the
San Diego County Recorder within ten (10) days following 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: 200§2QQi "CITY"
CITY OF CARLSBAD
By:
Name:
Title:
ATTEST:
By:
City Clerk
(SEAL)
35
Ewerl-Unknown document-propertymimes
[SIGNATURES CONTINUED ON NEXT PAGE.1
36
linknowH-docunient property ntHnft
Dated: , 200820119 "POSEIDON"
Poseidon (Channelside) LLC, a
Delaware limited liability company
By:_
Name:
Title:
37
owndocumentpropertyn»i»ft
STATE OF CALIFORNIA }
} ss
COUNTY OF SAN DIEGO }
On , before me,
personally appeared
personally known to me (orwtm proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the Jaws of the State of
California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Signature
STATE OF CALIFORNIA }
} ss
COUNTY OF SAN DIEGO }
On , before me,
personally appeared
personally known to me (orwho proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
38
! I'nikiiowii tlocuraeftt-property ntunev
Signature
39
l*nknown <loeumeftt property munei
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 No. and
Desalination Plant Case No. DA 05-01 (Planning ApplicationCommission Resolution
No. 6090). 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., as amended and restated on
, 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 Poseidon's interest as lessee, in the
Property.
Dated: "Cabrillo"
CABRILLO POWER I, LLC, a Delaware limited
liability company
By:
Name:
Title:
STATE OF CALIFORNIA }
} ss
COUNTY OF SAN DIEGO }
On , before me, ,
personally appeared , personally known to mo
(ofwho proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Error! linfciiowH-document-property
51
Signature
! I'likiwwii document-property
EXHIBITS "B" and "C"
(Legal Description and Maps of tho Property)
Soo Exhibits A J attached hereto
EXHIBIT "B"
Legal Description of the Property
comprised of the following:
(1) Exhibit A* - Legal Description of the Leased Premises
(2) Exhibit C* - Legal Description for Water Plant Intake/Discharge Easement Area
(3) Exhibit D* - Legal Description of the Connection Easement Area
(4) Exhibit E* - Legal Description of the Product Water Pipeline Easement Area
15} Exhibit F* - Legal Description of the Sewer/Domestic Water Easement Area
(6) Exhibit H* - Legal Description for Seawater Intake/Outfall Easement Area
EXHIBIT '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 CALIFORNIA, 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 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, 1319.08 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT
ANGLES, SOUTH 67°29'47" WEST, 58.72 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 67°31'21" WEST, 229.72 FEET; THENCE NORTH
40°03'53" WEST, 199.13 FEET; THENCE SOUTH 66°28'49" WEST, 45.93
FEET; THENCE NORTH 22°28'46" WEST, 587.13 FEET; THENCE NORTH
67°31'14" EAST, 338.82 FEET; THENCE SOUTH 22°37'35" EAST, 536.65
FEET; THENCE SOUTH 20°08'20" EAST, 115.20 FEET; THENCE SOUTH
22°37'35" EAST, 124.38 FEET TO-THE TRUE POINT OF BEGINNING.
ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'A-l*' 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 5.703 ACRES, MORE OR LESS
GARY L. HUS
L.S. 7019
EXPIRATION DATE
DATE
6/30/2010
T:\SURVKY\2398\2009-07-I3 - Plats\L.egab\Hxhibi[ A-l-rcconCiij-l'crmauciii Lease Arca.doc
EXHIBIT 'C*'
LEGAL DESCRIPTION
FOR
WATER PLANT INTAKE/DISCHARGE EASEMENT AREA
THAT PORTION OF LOT VXH" OH1 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-
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 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, 1490.22 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTH
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 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 RADIUS OF 45.00 FEET; THENCE
NORTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF
10°50'13", 8.51 FEET; THENCE TANGENT TO SAID CURVE, NORTH 42°55'06"
WEST, 37.86 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 52.50 FEET; THENCE WESTERLY,
ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 69°07'13",
63.33 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67°57'41" WEST,
325.78 FEET TO A POINT ON THE EASTERLY LINE OF CARLSBAD BOULEVARD
(FORMERLY XI-SD-23), BEING 100.00 FEET WIDE AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE NORTH 24°07'36" WEST, 41.25 FEET; THENCE
LEAVING SAID EASTERLY LINE, NORTH 34°28'03" EAST, 161.11 FEET;
THENCE NORTH 67°05'54" EAST, 142.26 FEET; THENCE SOUTH 76C03'09"
EAST, 74.70 FEET; THENCE SOUTH 67°18'36" EAST, 174.25 FEET THENCE
SOUTH 22°23'45" EAST, 151.01 FEET; THENCE NORTH 66°31f12" EAST,
403.04 FEET; THENCE SOUTH 22°28'46" EAST, 17.56 FEET; THENCE NORTH
66°28'49" EAST, 45.93 FEET; THENCE SOUTH 40°03; 53" EAST, 26.08 FEET
TO THE TRUE POINT OF BEGINNING.
T:\SURVEYV2398\2009-07-I3 • l>liils\l.«gals\Exliihil C-l-reeonfis-lnUtkcDisclinrgc liascment.doc
ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'C-l*' 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 1.678 ACRES, MORE OR LESS
GARY L. HUS
L.S. 7019
EXPIRATION DATE
DATE
6/30/2010
T:VSURVEY\2398\2009-07-I3 - F'lalsU.cgalsVExtiibil C-1-rcconf'ig-lntAkcDischnrgc F.ascmci\l.doc
EXHIBIT 'D*'
LEGAL DESCRIPTION
FOR
CONNECTION EASEMENT AREA
THAT PORTION OF 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-
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 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. 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 70.00 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 RADIUS OF 45.00 FEET; THENCE NORTHERLY, ALONG THE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLE OF 10°50'13", 8.51 FEET; THENCE
TANGENT TO SAID CURVE, NORTH 42°55'06" WEST, 37,86 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A
RADIUS OF 52.50 FEET; THENCE WESTERLY, ALONG THE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLE OF 69°07'.l3", 63.33 FEET; THENCE
TANGENT TO SAID CURVE, SOUTH 67°57' 41" WEST, 122.13 FEET TO THE
TRUE POINT OF BEGINNING; THENCE SOUTH 22°18'36" EAST, 202.81 FEET;
THENCE SOUTH 67°41'24" WEST, 37.42 FEET; THENCE NORTH 22°18'36"
WEST, 14.00 FEET; THENCE NORTH 67°41'24" EAST, 23.42 FEET; THENCE
NORTH 22°18'36" WEST, 188.87 FEET; THENCE NORTH 67°57'41" EAST,
14.00 FEET TO THE TRUE POINT OF BEGINNING. . .
ATTACHED HERETO IS A PLAT LABELED EXHIBIT XD-1*' AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HF.REON ARE
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. ALT, BEARINGS SHOWN HEREON ARE GRID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD-
83, AND EPOCH 1991.35.
T:\SURViiV\2398\2009-07-O - l'lais\I.cgiils\Gxliibil D-1-rcconfig-Coiwcaion Uascmcnl.doc
SAID PARCEL OF LAND CONTAINS 0.073 ACRES, MORE OR LESS
GARY L. HUS
L.S. 7019
EXPIRATION DATE
DATE
6/30/2010
T:\SURV!.-y\2398\2009-07-l3 - HntsU.cgalsUixliibit D-l-rcconfig-Comtection l-oscmcm.doc
EXHIBIT 'E*'
LEGAL DESCRIPTION
FOR
PRODUCT WATER PIPELINE EASEMENT AREA
THAT PORTION OF 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-
0789068, PARCEL 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 CORNER 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 19°02'22"
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 POINT BEARS NORTH 31°37t17" 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, 83.57 FEET/ THENCE NORTH
09°39'03" WEST, 32.20 FEET; THENCE NORTH 22°32'58" WEST, 186.83
FEET; THENCE NORTH 29°58'25" WEST, 434.98 FEET; THENCE NORTH
16°0:r06" WEST, 234.09 FEET; THENCE NORTH 14°45'12" WEST, 147.72
FEET; THENCE NORTH 22°37'35" WEST, 174.35 FEET; THENCE NORTH
20°08'20" WEST, 115.20 FEET; THENCE NORTH 22°37'35" WEST, 536.65
FEET; THENCE NORTH 67°31.'14" EAST, 45.00 FEET; THENCE SOUTH
22°37'35" EAST, 829.42 FEET; THENCE SOUTH 23°07'35" EAST, 791.70
FEET TO A POINT ON SAID WESTERLY LINE OF THE ATCHISON TOPEKA AND
SANTA FE RAILROAD/ THENCE ALONG SAID WESTERLY LINE, SOUTH 22°30'13"
EAST, 252.87 FEET; THENCE LEAVING SAID WESTERLY LINE NORTH
67°29'47" EAST, 100.00 FEET TO A POINT ON THE EASTERLY LINE OF SAID
ATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG SAID EASTERLY
LINE, SOUTH 22°30'13" EAST, 69.27 FEET; THENCE LEAVING SAID
EASTERLY LINK, SOUTH 67°29'47" WEST, 100.00 FEET TO SAID WESTERLY
LINE OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG
SAID WESTERLY LINK SOUTH 22°30'13" EAST, 151.99 FEET THE POINT OF
BEGINNING.
T:\SURVEY\2398\2009-07-13-Plats\U«als\nxl)ibiin-l-rcconrij-Product\VatcrHipcliiic.doc
Iflf
ATTACHED HERETO IS A PLAT LABELED EXHIBIT »E-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 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
L.S. 7019
EXPIRATION DATE
DATE
6/30/2010
T:\SURVKY\2398\2009-07-I3 - Pliils\LegalsUixhibil K-l-reconfig-Produci Waicr Pipeline.doc
EXHIBIT 'F*1
LEGAL DESCRIPTION
FOR
SEWER/DOMESTIC WATER EASEMENT AREA
THAT PORTION OF LOT VH" 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-
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 RIGHT-
OF-WAY OF THE AT CHI SON 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 POINT OF BEGINNING, SAID POINT
BEING ON THE SOUTHERLY LINE OF THAT CERTAIN UPIPE LINE LICENSE"
DATED MARCH 1, 1971,, BY AND BETWEEN THE ATCHISON, TOPEKA AND SANTA
FE RAILWAY COMPANY AND SAN DIEGO 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 NORTHERLY LINE OF SAID "PIPE LINE LICENSE"; THENCE ALONG
SAID NORTHERLY" LINE, NORTH 67°38'26" EAST, 183.15 FEET,- THENCE
LEAVING SAID NORTHERLY LINE, NORTH 22°21'34" WEST, 18.01 FEET;
THENCE NORTH 67°38'26" EAST, 35.00 FEET; THENCE SOUTH 22°21'34"
EAST, 37.01 FEET; THENCE SOUTH 67°38'26" WEST, 15.00 FEET; THENCE
SOUTH 22°21'34" EAST, 32.16 FEET; THENCE SOUTH 67°38'26" WEST,
40.78 FEET; THENCE NORTH 22021'34" WEST, 20.00 FEET; THENCE! NORTH
67°38'26" EAST, 20.78 FEET; THENCE NORTH 22°21'34" WEST, 22.16 FEET
TO A POINT ON THE SOUTHERLY LINE OF SAID "PIPE LINE LICENSE";
THENCE ALONG SAID SOUTHERLY LINE, SOUTH 67°38'26" WEST, 128.59 FEET
TO THE TRUE POINT OF BEGINNING.
ATTACHED HERETO IS A PLAT LABELED EXHIBIT XF-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; GRID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD-
83, AND EPOCH 1991.35.
T:\SUKVI-Y\2398\200<>-07.13 - PlalsM.cgalsVExhibii IM-reconfig-Scvvcf Domestic Walct.doc
SAID PARCEL OF LAND CONTAINS 0.092 ACRES, MORE OR LESS.
DATEGARY L. HUS
L.S. 7019
EXPIRATION DATE 6/30/2010
T:VSUKV1:.Y\239S\20Q9-07-I."> - Plats\l,egals\f-x)iihit F-1-reconfig-Sewer Domestic Waicr.ctoc
EXHIBIT 'H*'
LEGAL DESCRIPTION
FOR
SEAWATER INTAKE/OUTFALL EASEMENT AREA
THAT PORTION OF 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
COMF?LIANCE 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 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, 1490.22 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTH
66°28'49" WEST, 340.71 FEET; THENCE NORTH 40°03'53" WEST, 26.08
FEET; THENCE SOUTH 66°28'49" WEST, 45.93 FEET; THENCE NORTH
22°28'46" WEST, 17.56 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 FEET; THENCE NORTH 76°03'09" WEST, 33.56
FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 76°03'09" WEST,
41.14 FEET; THENCE SOUTTH 67°05'54" WEST, 142.26 FEET; THENCE
SOUTH 34°28'03" WEST, 161.11 FEET TO A POINT ON THE EASTERLY LINE
OF CARLSBAD BOULEVARD (FORMERLY XI-SD-23), BEING 100.00 FEET WIDE
AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID EASTERLY
LINE NORTH 24°07'36" WEST, 498.52 FEET; THENCE LEAVING SAID
EASTERLY LINE NORTH 64°33'05" EAST, 16.50 FEET; THENCE NORTH
12°16'19" EAST, 29.68 FEET; THENCE NORTH 65°25'26" EAST, 158.31
FEET TO A POINT ON THE NORTHERLY LINE OF SAID PARCEL 4; THENCE
ALONG SAID NORTHERLY LINE, SOUTH 30°14'20" EAST, 44.12 FEET; THENCE
SOUTH 05°57'51" EAST, 202.95 FEET; THENCE SOUTH 74*44'52" EAST,
164.81 FEET; THENCE NORTH 41°35'28" EAST, 60.84 FEET; THENCE SOUTH
22°28'46" EAST, 152.31 FRET TO THE POINT'OF. BEGINNING,.
ATTACHED HERETO IS A PLAT LABELED EXHIBIT Mi-1*' AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HF.REON 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.
T:\SURVBY\2398\2009-07-I3 -Plals\Uogals\F.xliibitH-l-recoiinij-liilakcOiilfall.doc
SAID PARCEL OF LAND CONTAINS 2.264 ACRKS, MORE OR LESS.
GARY L. BUS DATE
L.S. 7019
EXPIRATION DATE 6/30/2010
T:\-SURVEY\2398\2009-07-I3 - Plats\l.cf>als\Exliibit H-I-reconfig-liilakcOutfall doc
EXHIBIT "C"
Map of the Property
comprised of the following:
Exhibit A-1* - Map depicting the Leased Premises
(2) Exhibit C-1* - Map depicting the Water Plant Intake/Discharge Easement Area
(3) Exhibit D-1* - Mao depicting the Connection Easement Area
(4) Exhibit E-1* - Mao depicting the Product Water Pipeline Easement Area
(51 Exhibit F-1* - Map depicting the Sewer/Domestic Water Easement Area
(61 Exhibit G - Map depicting the Ingress and Egress Areas
(7) Exhibit H-1* - Map depicting the Seawater Intake/Outfall Easement Area
LEGAL DESCRIPTION:
A PORTION Of PARCEL 4 PER CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER JO, 2001 AS
DOCUMENT NO. 2001-0789068. AND AS SHOWN
ON RECORD OF SURVEY NO. 17250, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA.
ASSESSORS PARCEL NO:
2W-OW-4J
LEGEND:
p.o.c.
T.P.O.B.
BASIS OF BEARINGS:
THE BASIS OF BEARINGS FOR THIS DRAWING
IS THE HORIZONTAL CONTROL BASED ON THE CALIFORNIA
COORDINATE SYSTEM ZONE 6, NAD SJ, AS DETERMINED
LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271.
I.E. N40'J9'21"W.
INDICATES EXISTING PROPERTY LINE
INDICATES POINT OF COMMENCEMENT
INDICATES TRUE POINT OF BEGINNING
INDICATES THE LEASED PREMISES
AREA = 5.703 ACRES, MORE OR LESS
OWNER:
CABRILLO POWER I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD, CALIFORNIA 92008
PHONE: (760) 268-4011
SURVEYOR OF WORK:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
PHONE: (619) 235-6471
GARY L. HUS. L.S. 7019
REGISTRATION EXPIRES 6/30/2010
VICINITY MAP
NO SCALE
DATE
APPLICANT;
POSEIDON RESOURCES
501 WEST BROADWAY SUM 2020
'AN DIEGO, CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
THE LEASED
PREMISES
EXHIBIT
'A-1*p
SHEET 1 OF 2
A.P.N. 210-010-43
J: \SWWT\7J98\2009-07-U - Plals\f'lolAI-teconlig-Le<aeclPrtmisesSli(OI.(lwg
PARCEL 3
FiOS 17350
PARCEL 4
0 17350
PARCEL 7
FiOS 17350
PARCEL 4
ROS 17350
AT&SF RAILROAD
RIGHT-OF-WAY
PARCEL. 4
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
FILE NO. 2OO1-O789O68 PM
193SO
PARCEL 5
ROS 17350
THE LEASED
PREMISES
EXHIBIT
'A-1*'
SHEET 2 OF 2
APPLICANT:
POSEIDON RESOURCES
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800501 WEST BROADWAY SUITE 2020
SAN DIEGO, CALIFORNIA 92101 A.P.N. 210-010-43SAN DIEGO. CALIFORNIA 92101
P/ots\PlolAl-rccenng-LeoseOf'remisesSM02.tlifg
LEGAL DESCRIPTION:
A PORTION Of PARCEL 4 PER CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER JO. 2001 AS
DOCUMENT NO. 2001-0789068, AND AS SHOWN
ON RECORD OF SURVEY NO. 17350, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA.
ASSESSORS PARCEL NO:
2W-010-4J
LEGEND:
P.O.C.
T.P.O.B.
BASIS OF BEARINGS:
THE BASIS OF BEARINGS FOR THIS DRAWING
IS THE HORIZONTAL CONTROL BASED ON THE CALIFORNIA
COORDINATE SYSTEM ZONE 6, NAD 83, AS DETERMINED
LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271,
I.E. N40'J9'21"W.
INDICATES EXISTING PROPERTY LINE
INDICATES POINT OF COMMENCEMENT
INDICATES TRUE POINT OF BEGINNING
INDICATES INTAKE/DISCHARGE EASEMENT
AREA « 1.678 ACRES, MORE OR LESS
OWNER:
CABRILLO POWER I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD, CALIFORNIA 92008
PHONE: (760) 268-4011
SURVEYOR OF WORK:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
PHONE: (619) 2J5-647I
GARY L HUS, LS. 7019
REGISTRATION EXPIRES 6/JO/2010
VICINITY MAP
NO SCALE
DATE
APPLICANT:
POSEIDON RESOURCES
501 HtST BROADWAY SUITE 2020
SAN DIEGO. CALIFORNIA 92101
PREPARED BY;
PROJECT DESIGN CONSULTANTS
701 8 STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
WATER PLANT
INTAKE/DISCHARGE
EASEMENT AREA
EXHIBIT
lC-1*f
SHEET 1 OF J
A.P.N. 210-OIO-4J
T: \SUiMY\2Ma\2C09-07~l} -
PARCEL 3
ROS 17350
PARCEL 4
FiOS 17350
PARCEL 7
ROS 17350PARCEL 4
ROS 17350
PARCEL 4
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
AT&SF RAILROAD
RIGHT-Or-WAY
FILE NO. 2001-0789008
PIVJ
19380
PARCEL 5
ROS 17350
SCALE I" - 400'
APPLICANT:
POSEIDON RESOURCES
50! WEST BROADWAY SUITE 2020
SAN DIEGO. CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 8 STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
WATER PLANT
INTAKE/DISCHARGE
EASEMENT AREA
EXHIBIT
SHEET 2 OF J
AP.M 210-010-43
T: \SURrtY\2J96\200a-07--1} - l'Ms\flotCl-re<:on!ig-lntalttD/ichaigt,Shl02.ii^
CURVE TABLE
CURVE
C\
C2
CJ
DELTA
81'26'18"
IO-SO'13"
69'07't3"
RADIUS
70.00'
45.00'
52.50'
LENGTH
99.50'
8.51'
63.33'
T.P.O.B.\
\
\
\\\
PARCEL 4
FiOS 17350
PARCEL 4
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
FILE NO. 2OO1-O789O68
\
v-
LINE TABLE
LINE
LI
L2
BEARING
N32'04'53"W
N42'55'06"W
LENGTH
93.96'
J7.3&'
SCALE 1" = 200
APPLICANT:
POSEIDON RESOURCES
501 WST BROADWAY SUITE 2020
<AN DIEGO. CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
WATER PLANT
INTAKE/DISCHARGE
EASEMENT AREA
EXHIBIT
«C-1*'
SHEET 3 OF 3
A.P.N. 210-OIO-4J
-07-Jl - Plals\PlalCI-mconny-Mol<cDischorgtShlO}.ttwg
7?
LEGAL DESCRIPTION:
A PORTION Of PARCEL 4 PER CERTIFICATE: OF
COMPLIANCE RECORDED OCTOBER 30, 2001 AS
DOCUMENT NO. 2001-0789068. AND AS SHOWN
ON RECORD OF SURVEY NO. 17350, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA.
ASSESSORS PARCEL NO:
210-010-43
LEGEND:
p.o.c.
T.P.O.B.
BASIS OF BEARINGS:
THE BASIS OF BEARINGS FOR THIS DRAWING
IS THE HORIZONTAL CONTROL BASED ON THE CALIFORNIA
COORDINATE SYSTEM 20NE 6. NAD 83, AS DETERMINED
LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271,
I.E. N40'39'2t"W.
INDICATES EXISTING PROPERTY LINE
INDICATES POINT OF COMMENCEMENT
INDICATES TRUE POINT OF BEGINNING
INDICATES CONNECTION EASEMENT
AREA » 0.073 ACRES. MORE OR LESS
OWNER:
CABRILLO POWER I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD, CALIFORNIA 92008
PHONE: (760) 268-4011
SURVEYOR OF WORK:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
PHONE: (619) 235-6471
GARY L. HUS, L.S.7019
REGISTRATION EXPIRES 6/JO/20W
VICINITY MAP
NO SCALE
DATE
APPLICANT:
POSEIDON RESOURCES
501 WEST BROADWAY SUITE 2020
SAN DIEGO. CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSUL TANTS
70? B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
CONNECTION
EASEMENT AREA
EXHIBIT
fD-1*'
SHEET 1 OF 3
A.P.N. 210-010-43
PARCEL 3
ROS 17350
PARCEL 4
17350
PARCEL 7
i 17350PARCEL 4
ROS 17350
PARCEL 4 AT&5F RAILROAD
RIGHT-OF-WAYCERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O. 2OO1
FILE NO. 2001-0789O68
PARCEL 5
ROS 17350
CONNECTION
EASEMENT AREA
EXHIBIT
'D-1*'
SHEET 2 OF J
SCALE /" = 400'
APPLICANT:
OS&DON RESOURCES
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 8 STREET SUITE 800501 WEST BROADWAY SUtlE 2020
A.P.N. 210-010-43AN DIEGO. CALIFORNIA 92101 SAN DIEGO. CALIFORNIA 92W1
I: \SVRveY\2S9a\2C09-07-U - Plo(s\PbtDt~r(!C<3fi!ig-lntoi<eDischorgeSMO?.a#g
CURVE TABLE
CURVE
C1
C2
C3
DELTA
81'26'18"
W'50'13"
69'07'13"
RADIUS
70.00'
45.00'
52.50'
LENGTH
99.50'
8.51'
63.33'
A/2275'J6W
188.87'\
N67'4\'24"E
23.42'
\\\\\
PARCSL 4
ROS 17350
PARCEL 4
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
FILE NO, 2001-0789068
\
LINE TABLE
LINE
LI
12
L3
BEARING
N32V4'53°W
N42'55'06"W
N67'57'41"E
LENGTH
93.96'
37.86'
122,13'
SCALE 1" = 200'
APPLICANT:
POSEIDON RESOURCES
501 H£$T BROADWAY SUITE 2020
SAN DIEGO, CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSUL TANTS
70? 0 STREET SUITE 800
SAN DIEGO. CALIFORNIA 92101
CONNECTION
EASEMENT AREA
EXHIBIT
"D-1*1
SHEET 3 OF 3
A.P.N. 210-010-43
1: \SURtfr\2J93\Z009-07-lJ - Ptots^lolOt-ncoring-lnlol'.fDiscborgcShtOJ.tlwg
LEGAL DESCRIPTION:
A PORTION OF PARCEL 4 PER CERTIFICATE OF LEGEND:
COMPLIANCE RECORDED OCTOBER 30, 2001 AS
DOCUMENT NO, 2001-0789068, AND AS SHOWN
ON RECORD OF SURVEY NO. 17350, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE P.O.B.
OF CALIFORNIA.
ASSESSORS PARCEL NO:
210-010-43
BASIS OF BEARINGS:
THE BASIS OF BEARINGS FOR THIS DRAWING
IS THE HORIZONTAL CONTROL BASED ON THE CALIFORNIA
COORDINATE SYSTEM ZONE 6, NAD 83, AS DETERMINED
LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271,
I.E. N40'J9'21nW.
INDICATES EXISTING PROPERTY LINE
INDICATES POINT OF BEGINNING
INDICATES
PRODUCT WATER PIPELINE EASEMENT
AREA = 3.036 ACRES, MORE OR LESS
OWNER:
CABRILLO POWER I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD, CALIFORNIA 92008
PHONE: (760) 268-4011
SURVEYOR OF WORK:
PROJECT DESIGN CONSUL TANTS
701 8 STREET SUITE 800
SAN DIEGO, CALIFORNIA 92W1
PHONE: (619) 235-6471
GARY L HUS, LS. 7019
REGISTRATION EXPIRES 6/JO/20W
VICINITY MAP
NO SCALE
DATE
APPLICANT:
POSEIDON RESOURCES
501 WST BROADWAY SUITE 2020
SAN DIEGO, CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 9210)
PRODUCT
WATER PIPELINE
EASEMENT AREA
EXHIBIT
«E-1*'
SHEET 1 OF 3
A.P.N. 2IO-OW-4J
I- \WRVi:r\2}9d\?.009~0?~)J -
PAFiCSL 3
FiOS 17350
PARCEL 4
FiOS 17350
^
• AT&SF RAILROAD
RIGHT-OF-WAY
\\\ \\ v \
\\
o•52.
\\
PARCEL 4
FIOS 17350
PARCEL 4
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
FILE NO. 2001-O789O68
PARCEL 7
FiOS 17350
&'
•&
PJVJ
19380
P.O.B.
PARCEL 5
FiOS 17350
\
PCL, 8
;" = 400'
APPLICANT:
POSEIDON RESOURCES
501 WEST BROADWAY SUITE 2020
SAN DIEGO, CALIFORNIA 92101
PREPARED BY:
PROJECT. DESIGN CONSUL TANTS
701 8 STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
PRODUCT
WATER PIPELINE
EASEMENT AREA
EXHIBIT
«E-1*f
SHEET 2 OF J
A.P.N. 2W-OW-4J
: \SMVEr\2J98\2009--07-l3 - Plats^lotKI-rcconlig-ProiivctV/olerPipelineShtOldxg
N67'3]'14HE
45.00'
CURVE TABLE
CURVE
C1
DELTA
H'46'22"
RADIUS
553.00'
LENGTH
113.63'
LINE TABLE
LINE
LI
BEARING
N67'29'47"E
LENGTH
WO.OO'
PARCEL 4
ROS 17350
PARCEL 4
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
FILE NO. 2OO1-O789O68
N
SCALE 1" - 300'
PARCEL 4
ROS 17350
N20'08'20'W
115.20'
N22'37'35"W
N14'45'12"W
147.72'
AT&SF RAILROAD
RIGHT-OF-WAY
PARCEL 7
ROS 17350
S22'30'13"E
252.87'
69.27'
PM 19380
S22'30'13"E
151.99'
PARCEL 5
ROS 17350
APPLICANT:
POSEIDON RESOURCES
501 WEST BROADWAY SUITE 2020
SAN DIEGO, CALIFORNIA 9210)
PREPARED BY:
PROJECT DESIGN CONSUL TANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
PRODUCT
WATER PIPELINE
EASEMENT AREA
EXHIBITfE-1*'
SHEET 3 OF 3
A.P.N. 2IO-OW-4J
LEGAL DESCRIPTION:
A PORTION OF PARCEL 4 PER CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001 AS
DOCUMENT NO. 2001-0789068, AND AS SHOWN
ON RECORD OF SURVEY NO. 17J50, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA.
ASSESSORS PARCEL NO:
2W-OW-4J, 10 & 41
LEGEND:
P.O.C.
T.P.O.B.
BASIS OF BEARINGS:
THE BASIS OF BEARINGS FOR THIS DRAWING
IS THE HORIZONTAL CONTROL BASED ON THE CALIFORNIA
COORDINATE SYSTEM ZONE 6, NAD 83, AS DETERMINED
LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271,
I.E. N40'39'21"W.
INDICATES EXISTING PROPERTY LINE
INDICATES POINT OF COMMENCEMENT
INDICATES TRUE POINT OF BEGINNING
INDICATES
SEWER/DOMESTIC WATER EASEMENT
AREA » 0.092 ACRE, MORE OR LESS
OWNER:
CABRILLO POWER I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD, CALIFORNIA 92008
PHONE; (760) 268-4011
SURVEYOR OF WORK:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92W!
PHONE: (619) 235-6471
GARY L HUS, L.S.7019
REGISTRATION EXPIRES 6/JO/2010
N
VICINITY MAP
NO SCALE
DATE
APPLICANT:
POSEIDON RESOURCES
KST BROADWAY SUITE 2020
SAN DIEGO. CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
SEWER/
DOMESTIC WATER
EASEMENT AREA
EXHIBIT
SHEET 1 OF J
A.P.N. 210-010-43
r:\SURVtr\2.W8\2009--07-IS Plols\Plotll~(KonK9~Se*er(>om<islicWotsrSt,IOI.(J*g
PARCEL 4
ROB 17350
PARCEL 3
R08 17350
\T.P.O.B.AT&SF RAILROAD
RIGHT-OF-WAY
PARCEL 7
FiOS 17350PARCEL 4
ROS 17350
PARCEL 4. \
CERTIFICATE OF COMPLIANCE \
RECORDED OCTOBER 3O, 2OO1 \
FILE NO. 2OO1-O789O68
PM
J03SO
PARCEL 5
FiOS 17350
SEWER/
^DOMESTIC WATER
EASEMENT AREA
EXHIBIT
SCALE /" - 400'
APPLICANT:
POSEIDON RESOURCES
PREPARED BY:
PROJECT DESIGN CONSULTANTS
5WEFT 2 OF 3
A.P.N. 2W-010-4J
701 8 STREET SUITE 800501 KST BROADWAY SUM 2020
SAN DIEGO. CALIFORNIA 92W1 SAN DIEGO, CALIFORNIA 92101
3-07-1J - Plots\Ploiri-nctx,/ig~S<!*crDomcstkWottrSI>l02.d«4
LINE TABLE
LINE
U
12
L3
L4
BEARING
N22'21'34"W
N22'21'34"W
N67'38'26''E
N22'21>34*W
LENGTH
18.01'
20.00'
20. 78'
22,16'
PARCEL 4
17350
A T&SF RAILROAD
RIGHT-OF-WAY
15.00'
S22'21'34"E
32.16'
N22'37'35"W
9.00'
PARCEL 4
ROS 17350
\PARCEL 4
CERTIFICATE
OF COMPLIANCE
REC. OCT. 3O, 2001 \
FILE NO. 2001-0789068 \
\
SCALE 1" = 50'\\
APPLICANT;
POSEIDON RESOURCES
501 WEST BROADWAY SUIJE 2020
SAN DIEGO. CALirORNIA 92101
\\
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALirORNIA 92101
SEWER/
DOMESTIC WATER
EASEMENT AREA
EXHIBIT
fF-1*'
SHEET J OF J
A.P.N. 210-010-43
t; \SURV£Y\2J96\!C09-07-IJ -
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LEGAL DESCRIPTION;
A PORTION OF PARCEL 4 PER CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER JO, 2001 AS
DOCUMENT NO. 2001-0789068, AND AS SHOWN.
ON RECORD OF SURVEY NO. 17350. IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA.
ASSESSORS PARCEL NO:
210-010-43
LEGEND:
p.o.c.
T.P.O.B.
BASIS OF BEARINGS:
THE BASIS OF BEARINGS FOR THIS DRAWING
IS THE HORIZONTAL CONTROL BASED ON THE CALIFORNIA
COORDINATE SYSTEM ZONE 6, NAD 83, AS DETERMINED
LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271,
I.E. N40'39'21"W.
INDICATES EXISTING PROPERTY LINE
INDICATES POINT OF COMMENCEMENT
INDICATES TRUE POINT OF BEGINNING
INDICATES INTAKE/OUTFALL EASEMENT
AREA - 2.264 ACRES, MORE OR LESS
OWNER:
CABRILLO POWER I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD. CALIFORNIA 92008
PHONE: (760) 268-4011
SURVEYOR OF WORK:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
PHONE: (619) 235-6471
GARY L HUS, LS. 7019
REGISTRATION EXPIRES 6/30/2010
VICINITY MAP
NO SCALE
DATE
APPLICANT;
POSEIDON RESOURCES
501 WEST BROADWAY SUITE 2020
SAN DIEGO, CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO. CALIFORNIA 92101
SEAWATER
INTAKE/OUTFALL
EASEMENT AREA
EXHIBIT
'H-1*1
SHEET 1 OF 3
A.P.N. 2W-OW-4J
t: \SUKvi:Y\2338\2009~07-l.) -
PARCEL 3
ROB 17350
PARCEL 4
ROS -J7350
PARCEL 7
OB -J7350PARCEL 4
ROB -17350
PARCEL
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
AT&Sr RAILROAD
RIGHT-OF-WAY
FILE NO, 2001-0769068
PM
-J03SO
PARCEL 5
FiOS -J7350
SEAWAT6R
INTAKE/OUTFALL
EASEMENT AREA
EXHIBIT
'H-1*'APPLICANT:
POSEIDON RESOURCES
PREPARED BY:
PROJECT DESIGN CONSULTANTS
SHEET 2 OF J
A.P.N. 2W-OW-4J
70! B STREET SUITE 800501 H€ST BROADWAY SUITE 2020
SAN DIEGO. CALIFORNIA 92101SAN DIEGO, CALIFORNIA 92Wt
T: \SVSHnVJ9fl\20C9-07-M - Plots\f>lolHt~r«:onrig-lnto't<:0<ilMIShl02.tl»g
LINE TABLE
LINE
LI
L2
L3
BEARING
W76T0J'09"W
N64'33'05"E
M2'16'l9"e
LENGTH
33.56'
16.50'
29.68'
PARCEL 3
FJOS 17350
S22'28'46"E \
r 152.31'
P.O.B.
\\
\
PAF!C£L 4
ROS 17360
PARCEL 4
CERTIFICATE OF COMPLIANCE
RECORDED OCTOBER 3O, 2OO1
FILE NO. 3OO1-O789O68
\
\
\
\
\x-
SCALE 1" =
APPLICANT:
POSEIDON RESOURCES
501 WEST BROADWAY SUITE 2020
SAN DIEGO, CALIFORNIA 92101
PREPARED BY:
PROJECT DESIGN CONSULTANTS
701 B STREET SUITE 800
SAN DIEGO, CALIFORNIA 92101
SEAWATER
INTAKE/OUTFALL
EASEMENT AREA
EXHIBIT
'H-1*'
SHEET J OF J
A.P.N. 2)0-010-43
T; \5UR'/i:f\2398\2009-07-l3 - Plots\PlotHt"recontig-/ntoteOvlWIShtO}.<l*g
EXHIBIT ^"D"
(Map of the Property)
EXHIBIT "D^
(Existing Development Approvals)
(a) Final EIR 03-05; Findings of Fact; Statement of Overriding
Considerations; and Mitigation Monitoring and Reporting Program^
Addendum to Final EIR 03-05 (EIR 03-05fAH:
(c) (bfPrecise Development Plan {Amendment POP 00-02{B);
(e)-Specific Plan 144(HJ);
{4>-Coastal Development Permit CDP 04-41 ;
{efSouth Carlsbad Coastal Redevelopment Permit Amendment RP 05-
This Amended and Restated Development Agreement DA 05-01 (A);
(h) (ffHabitat Management Plan Permit Amendment HMPP 05-08(A1;
fe) This Agroemont DA 05 01; and
i& (nf Special Use Permit SUP 05-04.
The development approvals listed above include the approved maps and all conditions
of approval.
Error!- ljnkw>wn document-property -nwuft-
COPIES OF THE EXISTING LAND USE REGULATIONS LISTED ABOVE ARE ON
FILE IN THE CITY OF CARLSBAD CITY CLERK'S OFFICE AND THE CITY OF
CARLSBAD PLANNING DEPARTMENT AND ARE INCORPORATED HEREIN BY
REFERENCE.
krror!l"«kH0wn document property ntunft
EXHIBIT ^"E^
(Existing Land Use Regulations)
|L 4-: City of Carlsbad General Plan as amended through Resolution No.
£307.2008-320:
tL Citv of Carlsbad Municipal Code Title 21 (Zoning Ordinance) as
amended through Ordinance CS-026;
C, 2. City of Carlsbad Precise Development Plan PDF 00-02fBl as
amended through Ordinance No. T :
|L & South Carlsbad Coastal Redevelopment Plan^
§, 4-. Specific Plan 144(HJ), as amended through City of Carlsbad
ResolutionOrdinance No. .
t'nfciiown doeumettt-property
EXHIBIT "F"
(Approved Public Wavsl
EXHIBIT "G"
(Quitclaim Deed)
RECORDING REQUESTED BY
Clerkt City Council
Citv of Carlsbad
AND WHEN RECORDED MAIL TO:
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad. CA 92008
Attn: Citv Attorney
(SPACE ABOVE FOR RECORDER'S USE!
This document is exempt from the
payment of a recording fee pursuant to
Government Code Section 6103.
QUITCI
DOCUMENTARY TRANSFER TAX $
Computed on the consideration of value of
property conveyed; OR
Computed on the consideration or value
less liens or encumbrances remaining at the time
of sale.
Signature of Declarant or Agent determiningJax
Firm Name:
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged.
Poseidon Resources (Channelside) LLC, a Delaware limited liability company, as
grantor, hereby quitclaims to the Citv of Carlsbad, a Municipal Corporation, as
grantee, all of grantor's right, title and interest in and to that certain real property
more particularly described on Exhibit 1 attached hereto and incorporated herein
bv this reference.
Dated:20
Poseidon (Channelside) LLC, a
Delaware limited liability company
By:
Name:
Title:
STATE OF CALIFORNIA
ss
COUNTY OF SAN DIEGO
On before me.
personally aooeared
. who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the oersonfs) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
Witness mv hand and official seal.
Signature
a
EXHIBIT 1
(LEGAL DESCRIPTION -
APPURTENANT FACILITIES!
CERTIFICATION FOR ACCEPTANCE OF DEED
This is to certify that the interest in real property conveyed by the Quitclaim
Deed, dated . from Poseidon Resources (Channelside)
LLC, a Delaware limited liability company, to the City of Carlsbad, a Municipal
Corporation, is hereby accepted by the Citv Council of the Citv of Carlsbad.
California, pursuant to Resolution No. . adopted on
and the grantee consents to the recordation thereof by its duly authorized officer.
DATED:
Name:
Title: Citv Clerk
COPIES OF THE EXISTING LAND USE REGULATIONS LISTED ABOVE ARE ON
FILE IN THE CITY OF CARLSBAD CITY CLERK'S OFFICE AND THE CITY OF
CARLSBAD PLANNING DEPARTMENT AND ARE INCORPORATED HEREIN BY
REFERENCE.
#258S53-v4:0071329/000001
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.-.1..'.-II------------.--.
EXHIBIT 4
RESOLUTION NO.2009-233
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD,CALIFORNIA,APPROVING AN ADDENDUMTO
ENVIRONMENTAL IMPACT REPORT 03-05 AND AN
AMENDMENT TO HABITATMANAGEMENTPLAN PERMIT
HMP 05-08 FOR THE CONSTRUCTIONOF THE CARLSBAD
SEAWATER DESALINATION PLANT AND APPURTENANT
FACILITIES,INCLUDING DESALINATED WATER
CONVEYANCE PIPELINES,WHICH ARE LOCATED
GENERALLY ON THE ENCINA POWER STATION,4600
CARLSBAD BOULEVARD,AND ON PROPERTIES AND
STREETS IN THE CITIES OF CARLSBAD,OCEANSIDE,SAN
MARCOS,AND VISTA AND (IN THE CITY OF CARLSBAD)
LOCALFACILITIESMANAGEMENTZONES 1,3,5,6,8,13,16,
17,AND18.
CASE NAME:DESALINATIONPROJECT CHANGES
CASE NO.:EIR 03-05(A)/HMP 05-08(A)
The CityCouncil of the Cityof Carlsbad,Californiadoes hereby resolve as follows:
WHEREAS,on June 13,2006,the City Council of the City of Carlsbad certified
Environmental Impact Report (EIR)03-05,as modified by the additional responses to
comments;adopted the Candidate Findings of Fact,as modified by the addition of Section 5.5;
Statement of Overriding Considerations;and the MitigationMonitoringand Reporting Program
(collectively "certified EIR 03-05")for the Precise Development Plan and Desalination Plant
project;and
WHEREAS,pursuant to the provisions of the Municipal Code,the Planning
Commission did,on August 19,2009,hold a duly noticed public hearing as prescribed by law to
consider a proposed addendum to EIR 03-05 (identified as EIR 03-05(A»and a proposed
amendment to HMP 05-08 and adopted Planning Commission Resolutions 6631 and 6636,
recommending approval of EIR 03-05(A)and HMP05-08(A)respectively;and
WHEREAS,the City Council of the City of Carlsbad,on the 15tl:1 day of
September ,2009,held a duly noticed public hearing to consider the recommendation and
heard all persons interested in or opposed to EIR 03-05(A)and HMP05-08(A);and
WHEREAS,EIR 03-05(A)was presented to the City Council and the City Council
reviewed and considered it along with the information contained in certified EIR 03-05 prior to
approving the Desalination Project Changes project;and
(
WHEREAS, at said public hearing, upon hearing and considering all testimony and
7 arguments, examining EIR 03-05(A), analyzing the information submitted by City staff, and
3
considering any written and oral comments received, the City Council considered all factors
4
relating to the Addendum.
5
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
6
California, as follows:
7
1 . That the above recitations are true and correct.8
2. That EIR 03-05(A) for the Desalination Project Changes project is approved and
that the findings of the Planning Commission contained in Planning Commission Resolution
Number 6631, on file with the City Clerk and incorporated herein by reference, are the findings
of the City Council.
11
3. That the recommendation of the Planning Commission for the approval of Habitat
12 Management Plan Permit HMP 05-08(A) is approved and that the findings and conditions of the
Planning Commission contained in Planning Commission Resolution No. 6636 on file with the
13 City Clerk and incorporated herein by reference, are the findings and conditions of the City
Council.14
4. This action is final the date this resolution is adopted by the Housing and
Redevelopment Commission. The Provisions of Chapter 1.16 of the Carlsbad Municipal Code,
< fi "Time Limits for Judicial Review" shall apply:
17 "NOTICE TO APPLICANT"
The time within which judicial review of this decision must be sought is
governed by Code of Civil Procedure, Section 1094.6, which has been
19 made applicable in the City of Carlsbad by Carlsbad Municipal Code
Chapter 1.16. Any petition or other paper seeking review must be filed in
20 the appropriate court not later than the nineteenth day following the date
on which this decision becomes final; however, if within ten days after the
21 decision becomes final a request for the record of the deposit in an
amount sufficient to cover the estimated cost or preparation of such
22 record, the time within which such petition may be filed in court is
extended to not later than the thirtieth day following the date on which the
23 record is either personally delivered or mailed to the party, or his attorney
of record, if he has one. A written request for the preparation of the
record of the proceedings shall be filed with the City Clerk, City of
25 Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008."
26 '"
27 ///
28 ///
-2-
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PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the
Carlsbad City Council and Carlsbad Housing and Redevelopment Commission held on
the 15th day of September, 2009, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard, Blackburn
NOES: None
ABSENT: None
A LEWIS, Mayor
ATTEST:
/SEAL
/
M. WbdD, City Cl ft
EXHIBIT 5
1 RESOLUTION NO. 477
2 A RESOLUTION OF THE HOUSING AND REDEVELOPMENT
3 COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA,
APPROVING AN ADDENDUM TO ENVIRONMENTAL IMPACT
4 REPORT 03-05 AND AN AMENDMENT TO REDEVELOPMENT
PERMIT RP 05-12 FOR THE CONSTRUCTION OF THE
5 CARLSBAD SEAWATER DESALINATION PLANT AND
APPURTENANT FACILITIES, INCLUDING DESALINATED
6 WATER CONVEYANCE PIPELINES, WITHIN THE SOUTH
CARLSBAD COASTAL REDEVELOPMENT AREA. THE
7 PROJECT IS LOCATED AT THE ENCINA POWER STATION,
4600 CARLSBAD BOULEVARD; IN THE VICINITY OF AGUA
8 HEDIONDA LAGOON, AVENIDA ENCINAS, AND CANNON
ROAD; AND IN LOCAL FACILITIES MANAGEMENT ZONES 1, 3,
9 AND 13.
CASE NAME: DESALINATION PROJECT CHANGES
1U CASE NO.: EIR 03-05(A)/RP 05-12(A)
The Housing and Redevelopment Commission of the City of Carlsbad, California does
12
hereby resolve as follows:
13
14 WHEREAS, on June 13, 2006, the Housing and Redevelopment Commission of the
15 City of Carlsbad certified Environmental Impact Report EIR 03-05, as modified by the additional
16 responses to comments, adopted the Candidate Findings of Fact, as modified by the addition of
17 Section 5.5, Statement of Overriding Considerations, and the Mitigation Monitoring and
lg Reporting Program (collectively "certified EIR 03-05") and approved Redevelopment Permit RP
19 05-12 for the Precise Development Plan and Desalination Plant project; and
20 WHEREAS, pursuant to the provisions of the Municipal Code, the Planning
21 Commission did, on August 19, 2009, hold a duly noticed public hearing as prescribed by law to
22 consider a proposed addendum to EIR 03-05 (identified as EIR 03-05(A)) and a proposed
23 amendment to RP 05-12, and adopted Planning Commission Resolutions 6631 and 6635,
24 recommending approval of EIR 03-05(A) and RP 05-12(A), respectively; and
25 WHEREAS, the Housing and Redevelopment Commission of the City of Carlsbad, on
26
the i^t-h day of .qppi-fmhpr , 2009, held a duly noticed public hearing to consider
27
the recommendation and heard all persons interested in or opposed to EIR 03-05(A) and RP
28
05-12(A); and
102
1 WHEREAS, EIR 03-05(A) was presented to the Housing and Redevelopment
2 Commission and the Housing and Redevelopment Commission reviewed and considered it
along with the certified EIR 03-05 prior to approving the Desalination Project Changes project;
4
and
5
WHEREAS, at said public hearing, upon hearing and considering all testimony and
6
arguments, examining EIR 03-05(A), analyzing the information submitted by City staff, and
7
considering any written and oral comments received, the Housing and Redevelopment
o
Commission considered all factors relating to EIR 03-05(A).
1Q NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment
j j Commission of the City of Carlsbad, California, as follows:
\2 1. That the above recitations are true and correct.
13 2. That EIR 03-05(A) for the Desalination Project Changes project is approved and
that the findings of the Planning Commission contained in Planning Commission Resolution
14 Number 6631, on file with the City Clerk and incorporated herein by reference, are the findings
of the Housing and Redevelopment Commission.
3. That the recommendation of the Planning Commission for the approval of
Redevelopment Permit RP 05-12(A) is approved and that the findings and conditions of the
17 Planning Commission contained in Planning Commission Resolution No. 6635 on file with the
City Clerk and incorporated herein by reference, are the findings and conditions of the Housing
18 and Redevelopment Commission.
19 4. This action is final the date this resolution is adopted by the Housing and
Redevelopment Commission. The Provisions of Chapter 1.16 of the Carlsbad Municipal Code,
20 "Time Limits for Judicial Review" shall apply:
21 "NOTICE TO APPLICANT"
22 The time within which judicial review of this decision must be sought is
governed by Code of Civil Procedure, Section 1094.6, which has been
23 made applicable in the City of Carlsbad by Carlsbad Municipal Code
Chapter 1.16. Any petition or other paper seeking review must be filed in
the appropriate court not later than the nineteenth day following the date
25 on which this decision becomes final; however, if within ten days after the
decision becomes final a request for the record of the deposit in an
26 amount sufficient to cover the estimated cost or preparation of such
record, the time within which such petition may be filed in court is
27 extended to not later than the thirtieth day following the date on which the
record is either personally delivered or mailed to the party, or his attorney
28 of record, if he has one. A written request for the preparation of the
record of the proceedings shall be filed with the City Clerk, City of
Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008."
-2-jo3
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PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the
Carlsbad Housing and Redevelopment Commission and Carlsbad City Council held on
the 15th day of September, 2009, by the following vote to wit:
AYES: Commission Members Lewis, Kulchin, Hall, Packard and Blackburn.
NOES: None.
ABSENT: None.
OJDFA LEWIS, Chairman
ATTEST:
-V •/ j(f~\•^\}-v*
LISA HILDABRAND, Secretary
(SEAL)
- 5 ::»' CO1970 -oC-*
EXHIBIT 6
Figure 1 - Desalination Plant and Pipelines Map
Pipeline Alignment considered in EIR 03-05 and selected for construction
'"" Pipeline Alignment considered in EIR 03-05 but not selected
••"" Additional Alignments proposed and considered in EIR 03-05 addendum (EIR 03-05(A))
It Approximate Location of Flow Control Facility
EXHIBIT 7
1 PLANNING COMMISSION RESOLUTION NO. 6631
2 A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF THE ADDENDUM TO ENVIRONMENTAL
4 IMPACT REPORT 03-05 FOR THE PRECISE DEVELOPMENT
PLAN AND DESALINATION PLANT PROJECT (STATE
5 CLEARINGHOUSE NO. 2004041081), WHICH AFFECTS
PROPERTIES AND STREETS IN THE CITIES OF CARLSBAD,
6 OCEANSIDE, VISTA AND SAN MARCOS.
CASE NAME: DESALINATION PROJECT CHANGES
7 CASE NO.: EIR03-05(A)
WHEREAS, Poseidon Resources, "Developer," has filed a verified application
9 with the City of Carlsbad regarding property owned by various owners, "Owners", described as
10
The Encina Power Station, located north of Cannon Road and
11 west of Interstate 5 in the City of Carlsbad at 4600 Carlsbad
Boulevard. The desalination plant and some appurtenant
facilities are proposed on the grounds of the Power Station; and
Streets and properties within the boundaries of the Encina
14 Specific Plan, which encompasses approximately 680 acres around
Agua Hedionda Lagoon, including the Encina Power Station,
15 proposed desalination plant and some appurtenant facilities, all in
the City of Carlsbad; and
16
Various streets (including street rights of way) and properties
adjacent to them in Carlsbad and surrounding cities, including:
(1) in the City of Carlsbad, Avenida Encinas, Cannon Road,
Faraday Avenue, Melrose Drive, Lionshead Avenue, Palomar
in Airport Road, and Alga Road; (2) in the City of Oceanside,
Melrose Drive, Cannon Road, and Shadowridge Drive; (3) in the
20 City of San Marcos, Poinsettia Avenue, Linda Vista Drive, Las
Flores Drive, 9th Street, South Rancho Santa Fe Road, Creek
21 Street (extended), and Pawnee Street, and; (4) in the City of Vista,
Faraday Avenue, Melrose Drive, Business Park Drive, and
22 Poinsettia Drive, all of which are locations in which desalination
water conveyance pipelines are proposed.
WHEREAS, on June 13, 2006, the City Council of the City of Carlsbad certified
24
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28
Environmental Impact Report (EIR) 03-05, as modified by the additional responses to comments,-
adopted the Candidate Findings of Fact, as modified by the addition of Section 5.5, Statement of
Overriding Considerations, and the Mitigation Monitoring and Reporting Program for the Precise
Development Plan and Desalination Plant ("Project"); and
1 WHEREAS, minor and immaterial design modifications have been made to the
2 site plan and appurtenant facilities, including new pipelines in Carlsbad and surrounding cities,
3 of the Project in order to reflect final Project design plans; and
4 WHEREAS, in compliance with the California Environmental Quality Act
5 ("CEQA"), an Addendum to EIR 03-05 - EIR 03-05(A) ("Addendum") was prepared to
determine if the preparation of a subsequent or supplemental EIR was required for the
7
Desalination Project Changes project; and
8
WHEREAS, the Planning Commission did on August 19, 2009, hold a duly
9
noticed public hearing as prescribed by law to consider said request; and
, 1 WHEREAS, the Addendum was presented to the Planning Commission and the
\2 Planning Commission reviewed and considered the information contained in EIR 03-05, as
13 modified, including the Findings of Fact, as modified, Statement of Overriding Conditions, and
14 Mitigation Monitoring and Reporting Program prior to approving the Project; and
^ WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, examining the Addendum, analyzing the information submitted by City staff,
17
and considering any written and oral comments received, the Planning Commission considered
18
all factors relating to the Addendum.
19
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission as follows:
22 A) That the foregoing recitals are true and correct;
23 B) That the Planning Commission hereby RECOMMENDS APPROVAL of the
Addendum to EIR 03-05; based on the following findings that are supported by
24 substantial evidence in the Record.
25 Findings:
26 1. The Planning Commission of the City of Carlsbad does hereby find that the Addendum
~_ has been prepared in accordance with requirements of the California Environmental
28
PCRESONO. 6631 -2- i r
1 Quality Act, the CEQA Guidelines, and the Environmental Review Procedures of the
City of Carlsbad.
2. The Planning Commission of the City of Carlsbad has reviewed, analyzed, and
3 considered the Addendum with EIR 03-05 prior to RECOMMENDING APPROVAL
. of the Project, and it reflects the independent judgment of the City of Carlsbad Planning
Commission.
3. The Planning Commission of the City of Carlsbad does hereby find that adopting of
6 an Addendum to EIR 03-05 is appropriate and in conformance with CEQA in this
case because some changes or additions to EIR 03-05 are necessary, but none of the
7 conditions described in Section 15162 of the CEQA Guidelines calling for
preparation of a subsequent EIR have occurred, in that:
8
a. There are no significant new environmental effects and no substantial
increase in the severity of a previously identified significant effect. The
analysis and mitigation contained in EIR 03-05 remain adequate to address
all modifications proposed, whether to the desalination plant and
appurtenant on-site facilities or the off-site pipeline alignments. The
modifications, for example, do not amplify impacts to marine life as no
12 increase in plant seawater intake or discharge or change to the desalination
process is proposed. Additionally, the plant revisions proposed consist
13 primarily of physical changes to plant components, whether in size or
location, not operational modifications. Furthermore, although new pipeline
alignments are proposed that were not considered in the EIR, they do not
present new impacts not already considered or addressed as necessary by
existing mitigation measures.
b. There has been no substantial change with respect to the circumstances
17 under which the Project is being undertaken which would require major
revisions to EIR 03-05.
18 c. There is no new information of substantial importance that was not known
19 and could not have been known with the exercise of reasonable diligence at
the time EIR 03-05 was certified.
20
d. The Project will not have any significant effects not discussed in the EIR 03-
21 05.
22 e. There are no new or additional mitigation measures that need to be added
and there are no mitigation measures previously found not to be feasible
that are now found to be feasible that would substantially reduce one or
24 more significant effects of the Project.
25 4. The Addendum is incorporated by reference herein, and the findings and
substantial evidence presented in the Addendum are adopted as findings to
26 these proceedings.
27
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PCRESONO. 6631 -3-
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28
PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on August 19,2009, by the following vote,
to wit:
AYES:
NOES:
Commissioners Baker, Dominguez, L'Heureux, Nygaard,
Schumacher, and Vice Chairperson Douglas
ABSENT: Chairperson Montgomery
ABSTAIN:
FARRAH DOUGLAS, Vice Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
Planning Director
PCRESONO. 6631 -4-
1 PLANNING COMMISSION RESOLUTION NO. 6632
2 A RESOLUTION OF THE PLANNING COMMISSION OF THE
3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF AN AMENDMENT TO PRECISE
4 DEVELOPMENT PLAN POP 00-02 FOR THE CARLSBAD
SEA WATER DESALINATION PLANT, WHICH WOULD BE
LOCATED AT THE ENCINA POWER STATION (EPS). THE
6 AMENDMENT WOULD RECONFIGURE THE APPROVED
DESALINATION PLANT SITE, MODIFY PLANT BUILDINGS
7 AND STRUCTURE SIZES AND LOCATIONS, CONSOLIDATE
PLANT USES, AND UNDERGROUND RELATED PLANT
8 FACILITIES, ALL ON THE EPS PROPERTY LOCATED AT
4600 CARLSBAD BOULEVARD IN LOCAL FACILITIES
MANAGEMENT ZONES 1 AND 3 AND GENERALLY
10 LOCATED NORTH OF CANNON ROAD, SOUTH OF AGUA
HEDIONDA LAGOON, EAST OF THE PACIFIC OCEAN, AND
WEST OF INTERSTATE 5.
CASE NAME: DESALINATION PROJECT CHANGES
12 CASE NO.: POP 00-02(B)
13
WHEREAS, Poseidon Resources (Channelside) LLC, "Developer," has filed a
14
verified application with the City of Carlsbad regarding property owned by Cabrillo Power I
LLC, "Owner," and described as:
17 That portion of Lot "H" of Rancho Agua Hedionda in the City
of Carlsbad, County of San Diego, State of California,
18 according to partition map thereof No. 823, filed in the Office
of the County Recorder of San Diego County, November 16,
1896, as described in Certificate of Compliance recorded
20 October 30, 2001, as Document No. 2001-0789068, Parcel 4
(Assessor's Parcel Numbers 210-010-41 and a portion of
21 210-010-43).
22 WHEREAS, on June 13, 2006, the City Council of the City of Carlsbad,
23 California granted Poseidon Resources (Channelside) LLC ("Developer") and Cabrillo Power I
24
LLC ("Owner") a Precise Development Plan and Desalination Facility - POP 00-02, dated May
25
3, 2006; and
26
WHEREAS, the Precise Development Plan serves as a land use application for
28 the Carlsbad Seawater Desalination Plant, which is proposed at the Encina Power Station; and
WHEREAS, Developer has filed a verified application with the City of
2 Carlsbad for an amendment to PDF 00-02 to reflect final design plans for the Carlsbad Seawater
3
Desalination Plant (PDF 00-02(8)); and
4
WHEREAS, PDF 00-02(8) makes only minor changes to text and graphics of the
5 Precise Development Plan document, and the text changes are shown in strikethrough to indicate
7 words to be deleted and in underline to indicated words to be added; and
° WHEREAS, said application constitutes a request for an amended Precise
9
Development Plan as amended by PDF 00-02(B) and as referenced in Exhibit 1 dated August 19,
10
2009, attached hereto and on file in the Planning Department DESALINATION PROJECT
11
CHANGES — PDF 00-02(B) as provided by Chapters 21.36 and 21.52 of the Carlsbad
j3 Municipal Code; and
14 WHEREAS, the amendment to Precise Development Plan and Desalination Plant
15 project represents a reconfiguration of the onsite facilities of the Carlsbad Seawater Desalination
Plant and does not involve any modification to the intake or output of the desalination plant or its
17
operational characteristics; and
18
WHEREAS, the Planning Commission did on August 19, 2009, hold a duly
2Q noticed public hearing as prescribed by law to consider PDF 00-02(B); and
21 WHEREAS at said public hearing, upon hearing and considering all testimony
22 and arguments, examining PDF 00-02 (B), analyzing the information submitted by City staff, and
23 considering any written and oral comments received, the Planning Commission considered all
24
factors relating to PDF 00-02(B).
25
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
26
27 Commission of the City of Carlsbad as follows:
28 A) That the foregoing recitals are true and correct;
B) That the Planning Commission hereby RECOMMENDS APPROVAL of
PC RESO NO. 6632 -2- I |/
Desalination Project Changes - PDF 00-02(B); based on the following findings
2 that are supported by substantial evidence and subject to the following conditions.
Findings;
1. The Precise Development Plan PDF 00-02(B) is consistent with the intent and purpose
of the Public Utilities (P-U) Zone, Section 21.36.010 (1) of the Carlsbad Municipal Code,
to provide a Precise Development Plan, including with the changes to the Carlsbad
Seawater Desalination Plant proposed by PDF 00-02(B), that is compatible with the
General Plan and surrounding developments, in that (1) existing and permitted land
7 uses within the proposed Precise Development Plan are consistent with and/or
implement the objectives of the Public Utilities ("U") General Plan designation; (2)
8 the Precise Development Plan, through developments standards and review
procedures, is compatible with surrounding developments; and (3) the Precise
" Development Plan planning area is adequately buffered from surrounding, more
sensitive uses (e.g., residences and businesses) by open space, other utility uses, and
transportation corridors and through development standards, including setbacks, of
11 the proposed Precise Development Plan. Furthermore, the Owner, through the
Precise Development Plan, remains committed to providing certain public
dedications that will enhance the public's use of open space areas adjacent to the
Precise Development Plan area and Precise Development Plan PDF 00-02(B) is
conditioned to dedicate an easement for the Coastal Rail Trail.
14 2. The Precise Development Plan PDF 00-02(B) is consistent with the intent and purpose
15 of the Public Utilities (P-U) Zone, Chapter 21.36.010(2) of the Carlsbad Municipal Code
to provide a Precise Development Plan that has given due regard to environmental
16 factors, in that PDF 00-02(B) has been reviewed concurrently with the processing
and approval of the Addendum to Final Environmental Impact Report (EIR) 03-05,
compliant with the provisions of the California Environmental Quality Act.
Furthermore, as detailed in the Addendum, the desalination plant changes proposed
by PDF 00-02(B) are consistent with the findings of the EIR 03-05 and do not
19 warrant any changes to the Mitigation Monitoring and Reporting Program adopted
in City Council Resolution 2006-156 for the Precise Development Plan and
20 Desalination Plant project.
The Precise Development Plan PDF 00-02(B) is consistent with the intent and
22 purpose of the Public Utilities (P-U) Zone, Chapter 21.36.010(3) of the Carlsbad
Municipal Code to provide a Precise Development Plan that provides for
23 necessary public improvements, in that conditions of approval have been placed
on the project, which, in addition to the terms and obligations of the Amended
24 and Restated Development Agreement DA 05-01(A), combine to ensure that
adequate public improvements and/or dedications, and/or funds necessary
therefore, will be secured concurrent with project approval.
4. The Precise Development Plan PDF 00-02(B) permits the Carlsbad Seawater
27 Desalination Plant that is identified as a permitted use in the P-U Zone by
Municipal Code Section 21.36.020(4)(c) and that incorporates design, location,
28 and operation characteristics that ensure compliance with the intent and
purpose of the P-U Zone. Furthermore, PDF 00-02(B) sets forth the standards
of development for the desalination plant.
PC RESO NO. 6632 -3-
1 5. The Precise Development Plan PDF 00-02(B) is consistent with the General Plan in
2 that:
a. It provides regulations and standards for uses that are appropriate uses for
the General Plan Public Utilities ("U") land use designation, the designation
4 applied to the Encina Power Station.
5 b. The General Plan Land Use Element notes that the U land use designation is
applied to existing areas, such as the Encina Power Station, that are being
used for public or quasi-public functions.
c. It provides development standards for the Encina Power Station, including
the Carlsbad Seawater Desalination Plant, which is consistent with the
Overall Land Use Pattern goal A.2 that states, "A City which provides for
9 an orderly balance of both public and private land uses within convenient
and compatible locations throughout the community and ensures that all
such uses, type, amount, design, and arrangement serve to protect and
enhance the environment, character, and image of the City."
12 d. The establishment of the Precise Development Plan PDF 00-02(B), its
regulation of development and uses at the Encina Power Station, and the
13 Owner's offers of public dedications as conditioned herein, achieve
compliance with Land Use Element Environmental Policy C.6, which states,
"Ensure the preservation and maintenance of the unique environmental
resources of the Agua Hedionda Lagoon while providing for a balance of
public and private land uses through implementation of the Agua Hedionda
16 Land Use Plan."
17 6. The Precise Development Plan POP 00-02(B) is consistent with Encina Specific
Plan 144(J) in that:18
a. It complies with and enhances applicable Specific Plan standards and
19 requirements adopted over the years to regulate development at the Encina
Power Station.
b. It documents and maps power plant uses and features, and, since it proposes
no changes to the operation of the Encina Power Station and only limited
changes to its facilities (e.g., removal of a fuel oil storage tank, seawater
discharge channel connections, rerouting and removal, as appropriate, of
23 existing support infrastructure, such as piping, and potential demolition of
the administration building), Precise Development Plan PDF 00-02(B) does
24 not conflict with Specific Plan standards and requirements regarding power
station operations.
25 c. The proposed amended and restated Encina Specific Plan, SP 144(J),
26 incorporates the land use designations of the City of Carlsbad General Plan,
with which the Precise Development Plan PDF 00-02(B) is consistent.
27 Additionally, SP 144(J) would incorporate by reference POP 00-02(B).
28 7. The Precise Development Plan PDF 00-02(B) is consistent with the goals of the
South Carlsbad Coastal Redevelopment Plan in that:
\ \PC RESO NO. 6632 -4- \ \ ^
a. Establishment of the Precise Development Plan and its development and
2 environmental standards assists in eliminating blight and environmental
deficiencies in the Redevelopment Plan area and ensuring quality site
3 design.
4 b. Development of the Carlsbad Seawater Desalination Plant will assist in the
stimulation of new commercial/industrial expansion, employment, and
5 economic growth. The dedication to set aside vacant land next to the Hubbs-
Sea World research facility for marine research or aquaculture also
" furthers this goal.
7 c. The public dedications, including dedication of the Fishing Beach along the
lagoon and Bluff area adjacent to the beach, enable development of new
public beach and coastal recreation opportunities, parking, and open space
amenities.
Locating the Carlsbad Seawater Desalination Plant in a location that creates
the least amount of constraints on any future conversion of the Encina
Power Station facilitates the redevelopment of the Encina power generating
facility to a smaller, more efficient power generating plant. Furthermore, the
1 2 consolidation of appurtenant facilities onto the desalination plant site as well as
undergrounding and relocating of the pipelines and intake pump station
1 3 enhances redevelopment opportunities at the EPS.
14 8. The Precise Development Plan PDF 00-02(B) is consistent with the City's adopted
Scenic Corridor Guidelines, which apply to Carlsbad Boulevard and the North
County Transit District railroad corridor, in that it provides an updated quality
building design and appropriate visual screening for the Carlsbad Seawater
Desalination Plant, and recognition of the Guidelines and development
17 standards for the Encina Power Station as a whole.
18 9. The Precise Development Plan PDP 00-02(B), including the public dedications
proposed by the Owner through the Precise Development Plan, is in conformance
with the Agua Hedionda Land Use Plan and all applicable policies in that it has
2Q been reviewed for consistency with relevant coastal policies including land use,
habitat protection, grading and drainage, storm water management, recreation,
21 shoreline access, and visual resources. In particular, the Precise Development
Plan PDP 00-02(B) achieves consistency with Land Use Plan policies as follows:
22 "a. The Precise Development Plan PDP QO-02(B) regulates uses that are
23 consistent with those land uses shown on the Plan's Land Use Map (Policy
1.1).24 b. The Owner-offered dedication of a public access easement for the Fishing
25 Beach is consistent with policies 6.5 and 6.7, which encourage the Encina
fishing area on the Outer Lagoon to be maintained and present recreational
uses of the lagoon to be expanded where feasible.
27 c. Other Owner-offered public dedications in the vicinity of Agua Hedionda
Lagoon and the Pacific Ocean are consistent with Coastal Act Policies
regarding public access to coastline and recreational features.
PC RESO NO. 6632 -5-
The Precise Development Plan PDP 00-02(B) is subject to, and incorporates
2 as a regulating document, the Mitigation and Monitoring Program for EIR
03-05, adopted by City Council Resolution 2006-156, which provides
3 mitigation to ensure consistency with Land Use Plan policies regarding
environmentally sensitive habitats, geology, and water quality.
4 e. Development permitted by Precise Development Plan PDP 00-02(B) is
5 consistent with the development standards, such as building height, of the Agua
Hedionda Land Use Plan.
6
f. In November 2007, the Developer received discretionary approval of a coastal
development permit (E-06-013) from the California Coastal Commission. This
approval applies to the Carlsbad Seawater Desalination Plant as approved as
part of Precise Development Plan PDP 00-02 by the City Council and Housing
9 and Redevelopment Commission on June 13, 2006.
10 10. The approval of Precise Development Plan PDP 00-02(B) fulfills the requirement
of Municipal Code Section 21.36.030, which in part states that "no building permit
or other entitlement for any use in the P-U zone shall be issued until a precise
12 development plan has been approved for the property.
13 11. As conditioned, Precise Development Plan PDP 00-02(B) is consistent with the
City's Landscape Manual (Carlsbad Municipal Code Section 14.28.020 and
14 Landscape Manual Section I B).
15 12. That the City has adopted a Citywide Trails Program and a segment of the trail
network, the Coastal Rail Trail, is associated with this project. To facilitate
locating this trail, which cannot be accommodated in its originally intended
17 location within the North County Transit District Railroad right of way due to
various reasons including space limitations, security, and safety concerns, the
18 Owner and the City have agreed to try and find a mutually agreeable trail
location within the Precise Development Plan boundaries and a condition of
Precise Development Plan PDP 00-02(B) requires the dedication of an easement for
2Q the Coastal Rail Trail.
Conditions:
22 Note: Unless otherwise specified herein, all conditions shall be satisfied prior to issuance of
grading or building permits for the Carlsbad Seawater Desalination Plant,
23 whichever occurs first.
1. If any of the following conditions fail to occur; or if they are, by their terms, to be
25 implemented and maintained over time, if any of such conditions fail to be so
implemented and maintained according to their terms, the City shall have the right to
26 revoke or modify all approvals herein granted; deny or further condition issuance of all
future building permits; deny, revoke or further condition all certificates of occupancy
2' issued under the authority of approvals herein granted; record a notice of violation on the
property title; institute and prosecute litigation to compel their compliance with said
conditions or seek damages for their violation. No vested rights are gained by Developer
or a successor in interest by the City's approval of this Precise Development Plan, other
PC RESO NO. 6632 -6-
than those described in the Amended and Restated Development Agreement DA 05-
2
3 2. Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Precise Development Plan PDP QO-02(B) documents, as
necessary to make them internally consistent and in conformity with the final action on
- the project. Development shall occur substantially as shown on the approved Exhibits.
Any proposed development different from this approval shall require an amendment to
6 this approval.
7 3. Prior to issuance of any grading or building permits, Developer shall demonstrate
compliance with the approved Coastal Development Permit issued by the California
Coastal Commission or its successor in interest that substantially conforms to this
p approval. A signed copy of the Coastal Development Permit must be submitted to the
Planning Director. If the approval is substantially different, an amendment to the Precise
10 Development Plan PDP 00-02(B) shall be required.
4. Developer shall implement, or cause the implementation of the Precise Development
Plan and Desalination Plant Mitigation Monitoring and Reporting Program adopted by
12 City Council Resolution 2006-156.
13 5. This approval is granted subject to the approval of EIR 03-05(A), SP 144(J), DA 05-
14 01(A), RP 05-12(A), HMPP 05-08(A), and approved permit CDP 04-41 and is subject
to all conditions contained in Planning Commission Resolutions No. 6631, 6633, 6634,
6635, 6636, and 6092 for those other approvals incorporated herein by reference.
6. Those portions of the Project's water conveyance pipelines located within the City of
17 Carlsbad but outside of the Precise Development Plan PDP 00-02(B) boundaries are
not approved as part of this permit and are subject to future permits by the City of
18 Carlsbad, and will be subject to the requirements of the Carlsbad Municipal Code.
19 7. If the Encina Power Station administration building is demolished or removed, any
2Q proposal to rebuild or relocate the building shall be subject to separate review and
approval.
21
8. If any condition for construction of any public improvements or facilities, or the payment
22 of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project
are challenged, this approval shall be suspended as provided in Government Code
Section 66020. If any such condition is determined to be invalid, this approval shall be
24 invalid unless the City Council determines that the project without the condition complies
with all requirements of law.
25
9. Developer shall comply with all applicable provisions of federal, state, and local laws and
regulations in effect at the time of building permit issuance, except as otherwise
provided in the Amended and Restated Development Agreement DA 05-01(A).
28 10. Owner shall comply with all applicable provisions of federal, state, and local laws and
regulations in effect at the time of building permit issuance as they relate to the existing
Encina Power Station.
PC RESO NO. 6632 -7- \ ^
11. Indemnification:
2 a. Developer shall and does hereby agree to indemnify, protect, defend, and hold
3 harmless the City of Carlsbad, its Council members, officers, employees, agents, and
representatives (collectively "Indemnified Parties"), from and against any and all
4 liabilities, losses, damages, demands, claims and costs, including court costs and
attorney's fees incurred by the City arising, directly or indirectly, from (i) City's
approval and issuance of this Precise Development Plan PDF 00-02(B), (ii) City's
approval or issuance of any permit or action, whether discretionary or
nondiscretionary, in connection with the Carlsbad Seawater Desalination Plant use
contemplated herein, and (iii) Developer's installation and operation of the Carlsbad
Seawater Desalination Plant, including without limitation, any and all liabilities
arising from the emission by the Carlsbad Seawater Desalination Plant of
electromagnetic fields or other energy waves or emissions. These obligations survive
until all legal proceedings have been concluded and continue even if any City
10 approval giving rise to an indemnification obligation is not validated.
11 b. Owner shall and does hereby agree to indemnify, protect, defend, and hold harmless
Indemnified Parties, from and against any and all liabilities, losses, damages,
demands, claims and costs, including court costs and attorney's fees incurred by the
,,, City arising, directly or indirectly, from (i) City's approval and issuance of this
Precise Development Plan PDP 00-02(B), (ii) City's approval or issuance of any
14 permit or action, whether discretionary or nondiscretionary, in connection with the
use of the existing 95-acre Encina Power Station, and (iii) Owner's installation and
15 operation of the Encina Power Station, including without limitation, any and all
liabilities arising from the emission by the Encina Power Station of electromagnetic
fields or other energy waves or emissions. Owner's duty to indemnify the
17 Indemnified Parties does not include any and all liabilities, losses, damages, demands,
claims, costs, court costs and attorney's fees arising, directly or indirectly from the
18 Carlsbad Seawater Desalination Plant. These obligations survive until all legal
proceedings have been concluded and continue even if any City approval giving rise
19 to an indemnification obligation is not validated.
20 12. a. The Desalination plant project shall comply with all conditions and mitigation measures
21 which are required as part of the Zone 1 and Zone 3 Local Facilities Management
Plans and any amendments made to that Plan prior to the issuance of building permits.
22 Should amendments occur to the LFMPs, the Developer shall comply subject to
the limitations of the Amended and Restated Development Agreement DA 05-
23 01(A).
24 b. For the Encina Power Station, Owner shall comply with all conditions and mitigation
25 measures which are required as part of the Zone 1 and Zone 3 Local Facilities
Management Plans and any amendments made to that Plan prior to the issuance of
26 building permits for any permits not contemplated in this PDP, as it may be amended
from time to time.27
13. The approval of the PDP shall become null and void for the portions relating to the
Desalination Plant, if the Desalination Plant does not become operational within
10 years of the final discretionary approval, including the discretionary approvals of
PC RESO NO. 6632 -8-
the California Coastal Commission or other agencies, as may be consistent with the
2 Amended and Restated Development Agreement DA 05-01(A).
3 14. a. As a condition of this approval, Owner must comply with the requirements of all
regulatory agencies having jurisdiction over the Encina Power Station.
4
b. As a condition of this approval, Developer must comply with the requirements of all
regulatory agencies having jurisdiction over the Desalination Plant.
6
15. Developer shall submit to the Planning Director a reproducible 24" x 36" mylar copy of
7 the Precise Development Plan POP 00-02(B) reflecting the conditions approved by the
final decision-making body.
o
o 16. Developer shall include, as part of the plans submitted for any permit plan check, a
reduced legible version of all approving resolution(s) in a 24" x 36" blueline drawing
10 format (including any applicable Coastal Commission approvals and the Mitigation
Monitoring and Reporting Program).
11
17. Prior to the issuance of any permits for the project, the applicant shall submit to the
Planning Director a digital, editable copy and a camera-ready master copy of the
! 3 DESALINATION PROJECT CHANGES - POP 00-02(B), in addition to the required
number of bound copies determined by the Planning Director.
14
18. Prior to the issuance of any permits for the project, the applicant shall submit to the
1 5 Planning Director a digital copy of the biology report exhibits in AutoCAD DWG or
1 , ESRI-Shape-File Format registered to CCS zone 6 NAD 83. This requirement applies
to exhibits prepared for biological impacts in both the Encina Power Station and
17 pipeline alignments throughout Carlsbad. The Planning Director has the discretion to
waive this condition based on factors such as the scope of the study and the format in
1 8 which the exhibits were prepared.
1 9 19. Prior to final inspection of the desalination plant, Developer shall have constructed
2Q a decorative screen wall or fence and, where feasible, install landscaping and
irrigation along the entire Carlsbad Boulevard frontage of the Encina Power Station
21 beginning at the power station's south boundary adjacent to the SDG&E property
and extending approximately to the north end of the aquaculture facilities adjacent
22 to the power station's discharge pond, provided that (i) prior to issuance of building
or precise grading permits for the desalination plant, plans for the decorative
screening wall or fence, landscaping and irrigation, as outlined in the conditions for
24 a Final Landscape and Irrigation Plan contained herein, shall be submitted to the
Planning Director and the City Engineer for review and approval; and (ii) such
25 decorative screen wall or fence shall replace the existing fence and shall incorporate,
if determined appropriate by the Planning Director and the City Engineer, the
bridge rail over the cooling water discharge culvert as required by and conditioned
27 in Planning Commission Resolution No. 6634 for Redevelopment Permit RP 05-
28
20. Prior to the issuance of a precise grading plan, Developer shall submit and obtain
Planning Director approval of a Final Landscape and Irrigation Plan showing
PC RESO NO. 6632 -9-
conformance with the conditions herein and the City's Landscape Manual. Developer
2 shall construct and install all landscaping as shown on the approved Final Plans, and
maintain all landscaping in a healthy and thriving condition, free from weeds, trash, and
3 debris.
4 21. The first submittal of Final Landscape and Irrigation Plans shall be pursuant to the
landscape plan check process on
project's precise grading plans.
<. landscape plan check process on file in the Planning Department and accompanied by the
6..
Engineering:
7
o 22. Prior to approval of precise grading or building permits for the desalination plant,
Developer shall cause Owner to give written consent to the City Engineer to the
9 annexation of the area shown within the boundaries of the Precise Development Plan into
the existing City of Carlsbad Street Lighting and Landscaping District No. 1 and/or to
10 the formation or annexation into an additional Street Lighting and Landscaping
District. Said written consent shall be on a form provided by the City Engineer.
12 23. Prior to issuance of precise grading or building permits for the desalination plant,
Developer shall cause Owner or its successor in interest to make an irrevocable offer of
13 dedication to the City and/or other appropriate entities for all public streets, lands, and
easements shown on the Precise Development Plan listed below, except as otherwise
14 provided in the Precise Development Plan POP 00-02(B). The offer shall be made by a
separate document. All land so offered shall be offered free and clear of all liens and
encumbrances and without cost. Streets that are already public are not required to be
15 rededicated.
17 a. Public dedications: The locations of the following dedications are shown on
exhibit "Poseidon Desalination Plant Proposed Parcel Exhibit" attached hereto
for reference. Prior to issuance of precise grading or building permits for the
desalination plant, precise legal descriptions and documentation shall be
submitted to the satisfaction of the City Attorney, the City Engineer, and the
20 Planning Director.
21 i. Hubbs Site Parcel: A deed restriction shall be recorded on the property
known as the Hubbs Site Parcel. The Hubbs Site Parcel is the vacant,
approximately two-acre eastern portion of the property identified by
23 Assessor's Parcel Number (APN) 206-07-017 and currently occupied by the
Hubbs-Sea World Research facility. The deed restriction shall limit
24 allowable land uses on the Hubbs Site Parcel to those that are directly related
to fish hatchery, fish ecology research, aquaculture uses, and trails to the
25 satisfaction of the Planning Director.
ii. Bluff Area Parcel: Fee title to property known as the Bluff Area Parcel shall
be granted to the City of Carlsbad for public access and recreational uses.
27 The Bluff Area Parcel is on the west side of Carlsbad Boulevard, between the
Encina Power Station discharge jetty and the Terramar residential area.
28 Fee title shall include only the bluff area and not the beach. Cabrillo Power I
LLC shall pay all costs associated with the property dedication.
iii. South Power Plant Parcel: A public parking and public access easement
PC RESO NO. 6632 -10-\ \0(
> M
shall be granted to the City of Carlsbad for the property described as the
2 South Power Plant Parcel for the development of public vehicle parking by
the City of Carlsbad. The South Power Plant Parcel is located at the
3 southwest corner of the Precise Development Plan, adjacent to the east side
of Carlsbad Boulevard and Encina Power Station south entrance gate, an
area approximately 0.27 acre in size. If necessary, Developer shall be
, responsible for costs associated with removal and relocation of any gates or
fences necessary to accommodate the parking and access to it. Furthermore,
5 prior to issuance of grading or building permits for the desalination plant,
one (or more) plan(s) shall be provided to the City to show feasible parking
7 layouts as determined by the Planning Director and the City Engineer.
Parking lot plans shall be designed to complement and allow installation of
the Carlsbad Boulevard frontage landscape and wall conditioned herein.
The operational parameters of the public parking and public access shall be
ones that are mutually agreeable to both the Owner and the Planning
10 Director.
iv. Fishing Beach Parcel: A public access and public parking easement shall be
granted to the City of Carlsbad for the property known as the Fishing Beach
Parcel for access and on-shore recreational uses, including public parking.
The operational parameters of the on-shore recreational facilities, public
13 parking, and public access shall be ones that are mutually agreeable to both
the Owner and the Planning Director. This property, approximately 2.4
14 acres, is located on the east side of Carlsbad Boulevard along the Outer Agua
Hedionda Lagoon and stretches from the lagoon inlet jetty to a point at an
existing fence about 1,500 feet south. Cabrillo Power I LLC or their assignee
.,- shall retain the right to close the Fishing Beach property to public use and
access from time to time during periodic dredging cycles as approved for
17 lagoon maintenance.
18 b. Carlsbad Boulevard: From the southerly boundary of the Precise Development
Plan to the northerly boundary of Specific Plan 144, dedicate additional right-of-
way for public street and utility purposes along the easterly side of Carlsbad
20 Boulevard. Width of additional right-of-way shall be one (1) foot to the
satisfaction of the City Engineer.
21
c. The Owner of the Precise Development Plan property shall enter into an
22 agreement with the City whereby the Owner:
21 Acknowledges that the existing storm drain facilities across Precise
24 Development Plan property may be of inadequate size to contain the 100-
year storm flows.
25 ii. Acknowledges that under existing NPDES requirements applicable to the
Owner's property that Owner has legal obligations to prevent illegal or
26 unpermitted discharges into the Agua Hedionda Lagoon or Pacific Ocean
under expected drainage water flows, and no releases of hazardous materials
or pollutants as the result of drainage flows from the Precise Development
28 Plan property.
d. Coastal Rail Trail -Dedicate an easement for the Coastal Rail Trail in a location
PC RESO NO. 6632 -11-
within the boundaries of the Precise Development Plan that is mutually
2 acceptable to the City and Owner or its successor in interest.
3 e. Agua Hedionda Lift Station Site and Vista-Carlsbad Interceptor Sewer Pipeline
- Dedicate an easement for the Agua Hedionda Lift Station Site and Vista-
Carlsbad Interceptor Sewer Pipeline in a location within the boundaries of the
~ Precise Development Plan that is mutually acceptable to the City and the Owner
or its successors in interest.
6
25. Subject to any Owner-initiated development which requires a formal amendment to
7 the Precise Development Plan, other than the desalination plant. Owner shall
prepare and submit, for City Engineer review and approval, a hydrology/hydraulic
study regarding the 100-year storm flows conveyed to and through the subject
property. The Study shall consider the post-developed (ultimate) storm flows
generated by the Precise Development Plan Area and shall provide the type and size
10 of proposed storm drain facility and appurtenances (Private Storm Drain
Improvements) necessary to collect and convey the proposed 100-year storm across
the property all to the satisfaction of the City Engineer.
12 26. Subject to any Owner-initiated development which requires a formal amendment to
13 the Precise Development Plan, other than the desalination plant. Owner shall
submit grading plans to the City Engineer for review and approval for the
14 construction of Private Storm Drain Improvements identified in the city-approved
hydrology/hydraulic study all to the satisfaction of the City Engineer. Owner shall
pay review and inspection fees based on the latest schedule of fees.
27. Owner shall not challenge any aspect of EIR 03-05(A) before the California Coastal
17 Commission or in any court of law for any reason or purpose.
18 NOTICE
19 Please take NOTICE that approval of your project includes the "imposition" of fees,
20 dedications, reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
21
22 You have 90 days from date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
23 66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
24 follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
27 zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
28 NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
PC RESO NO. 6632 -12-
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PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on August 19,2009, by the following vote,
to wit:
AYES:
NOES:
Commissioners Baker, Dominguez, L'Heureux, Nygaard,
Schumacher, and Vice Chairperson Douglas
ABSENT: Chairperson Montgomery
ABSTAIN:
FARRAH DOUGLAS, Vice Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
yL
DON NEU
Planning Director
PC RESO NO. 6632 -13-
POSEIDON DESALINATION PLANT
PROPOSED PARCEL EXHIBIT
MAP 1803
MAP 11685
HUBBS
SITE
PARCEL
PARCEL 3
FiOS 17350
PARCEL
PAR 2
FiOS 17350
PORTION LOT H
F1ANCHO
AQUA HEDJONDA NCTD (A T&SF)
RAILROAD
RIGHT-OF-WAY
CERTIFICATE
OF COMPLIANCERECORDED OCTOBER 3O, 2OO1
FILE NO. 2OO1-O78OOO8
FISHING
BEACH
PARCEL.
PARCEL 3
ROS 17350
BLUFF
AREA
PARCEL
SOUTH
POWER PLANT
PARCEL
SCALE 400'
PROJECT DESIGN CONSULTANTS
701 BStTMt. SuittSOO
619.236.6471 Tel
S»Hego,CA 92101
818.234.0348 Fix
1 PLANNING COMMISSION RESOLUTION NO. 6633
2
A RESOLUTION OF THE PLANNING COMMISSION OF THE
3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF THE AMENDED AND RESTATED ENCINA
4 SPECIFIC PLAN 144 WITH AMENDMENT 144(J) TO
s INCORPORATE AMENDED PRECISE DEVELOPMENT
PLAN 00-02(B) FOR THE CARLSBAD SEAWATER
6 DESALINATION PLANT ON PROPERTY LOCATED NORTH
OF CANNON ROAD, SOUTH OF AGUA HEDIONDA
7 LAGOON, EAST OF CARLSBAD BOULEVARD AND WEST
OF INTERSTATE 5 AND IN LOCAL FACILITIES
8 MANAGEMENT ZONES 1 AND 3.
o CASE NAME: DESALINATION PROJECT CHANGES
CASE NO.: SP 144(T)
10
WHEREAS, Poseidon Resources (Channelside) LLC, "Developer," has filed a
11
verified application with the City of Carlsbad regarding property owned by Cabrillo Power I
13 LLC, "Owner," described as
14 That portion of Lot "H" of Rancho Agua Hedionda in the City
of Carlsbad, County of San Diego, State of California,
* -1 according to partition map thereof No. 823, filed in the Office
1,- of the County Recorder of San Diego County, November 16,
1896, as described in Certificate of Compliance recorded
17 October 30, 2001, as Document No. 2001-0789068, Parcel 4.
(Assessor's Parcel Numbers 210-010-41 and a portion of
18 210-010-43)
19 ("the Property"); and
20 WHEREAS, said verified application constitutes a request for a Specific Plan
21
amendment as shown on Exhibit 2 dated August 19, 2009, and attached hereto
22
23 DESALINATION PROJECT CHANGES as provided by SP 144(J) and Government Code
24 Section 65450 et seq; and
25 WHEREAS, the City Council adopted the Encina Specific Plan 144 in 1971 by
96zo Ordinance 9279 to provide rules and regulations for the orderly development of 680 acres of land
27 located generally east of the Pacific Ocean, south of the north shore of Agua Hedionda Lagoon,
28
and north of Cannon Road and provide design and development guidelines for the expansion of
the Encina Power Station; the specific plan also allows the City to address land use issues such
2 as public access and use of the lagoon; and
3
WHEREAS, in 2002, the City Council, in Agenda Bill 16,790, directed that any
4
- applicant of a proposed project within the specific plan be required to prepare a comprehensive
g update of the specific plan; and
7 WHEREAS, in 2003, the City Council passed Resolution 2003-208, allowing the
o
Precise Development Plan and Desalination Plant project to be processed as an amendment to the
9
Encina Specific Plan 144, rather than through a comprehensive update of the specific plan; and
10
WHEREAS, in 2006, the City Council passed Resolution NS-805, incorporating
11
Precise Development Plan POP 00-02 into the Encina Specific Plan through Specific Plan
13 Amendment SP 144(H); and
14 WHEREAS, SP 144(J) incorporates Precise Development Plan PDF 00-02(B),
15 into the Encina Specific Plan; and
WHEREAS, SP 144(J) does not change any general plan land use or zoning
17
designations within the boundaries of the specific plan, any condition set forth by a previously
18
approved specific plan amendment, nor does it propose any development other than that
2Q contemplated by the Desalination Project Changes project and described in EIR 03-05(A), the
21 Addendum to Final Environmental Impact Report EIR 03-05; and
22 WHEREAS, SP 144(J) makes only minor text changes to the Encina Specific
93 Plan document, which are shown in strikethrough to indicate words to be deleted and in
24
underline to indicated words to be added; and
25
WHEREAS, the development contemplated by the Desalination Project Changes
26
27 project and described in EIR 03-05(A): (1) complies with South Carlsbad Coastal
28 Redevelopment Area Plan goals and enhances redevelopment opportunities at the Encina Power
Station through the undergrounding and consolidating of appurtenant facilities; (2) maintains
PC RESO NO. 6633 -2- \ ,
previously approved requirements for the dedication of lands for public use, and; (3) does not
2 change any aspect of the desalination plant's intake or output capacity or operational
3
characteristics, as described in EIR 03-05(A); therefore, the processing of the project as an
4
- amendment to, rather than a comprehensive update of the Encina Specific Plan 144, is
appropriate; and
7 WHEREAS, the Planning Commission did, on August 19, 2009, hold a duly
o noticed public hearing as prescribed by law to consider said request; and
9 WHEREAS, at said public hearing, upon hearing and considering all testimony
10
and arguments, if any, of all persons desiring to be heard, examining SP 144(J), analyzing the
11
information submitted by City staff, said Commission considered all factors relating to the SP
13
14 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission of the City of Carlsbad as follows:
A) That the foregoing recitations are true and correct.
17
B) That based on the evidence presented at the public hearing, the Planning
1 8 Commission RECOMMENDS APPROVAL of the Specific Plan Amendment,
SP 144(H), for the DESALINATION PROJECT CHANGES based on the
y following findings and subject to the following conditions:
20 Findings:
21
1. The proposed development as described by Specific Plan Amendment SP 144(J) is
22 consistent with the provisions of the General Plan in that development contemplated by
the Desalination Project Changes and described in EIR 03-05(A) is consistent with
the applicable General Plan land use designations and policies. Contemplated
24 development consists of a desalination plant and support infrastructure, including
pipelines, which complies with General Plan land use designations and goals to
25 ensure adequate public facilities and economic growth to sustain Carlsbad's quality
of life.26
~~ 2. The proposed specific plan amendment would not be detrimental to the public interest,
health, safety, convenience or welfare of the City in that it (1) does not propose any
28 changes to existing general plan land use or zoning designations, and (2) does not
alter any condition set forth by a previously approved specific plan amendment to
regulate the Encina Power Station, and (3) authorizes only development
PCRESONO. 6633 -3-
contemplated by the Desalination Project Changes project, for which EIR 03-05(A)
2 has been prepared.
3 3. The proposed specific plan amendment is consistent with the Local Coastal
Program in that it does not change any land use designations of the Agua Hedionda
Land Use Plan, authorizes development (the Desalination Project Changes project)
consistent with the Land Use Plan, and through that development, provides public
land use dedications that further Coastal Act policies regarding public access and
use of area features, such as Agua Hedionda Lagoon.
4. Specific Plan 144(J) provides assurances that all necessary public facilities can be
provided concurrent with need and adequate provisions have been provided to implement
those portions of the capital improvement program applicable to the subject property in
Q that it incorporates by reference the applicable Local Facilities Management Plans
for Zones 1,3, and 13.
10 5. Appropriate measures are proposed to mitigate any adverse environmental impact as
11 noted in the Final Environmental Impact Report EIR 03-05 and confirmed in EIR
03-05(A).
12
6. Specific Plan 144(J) will contribute to the balance of land use so that local residents may
work and recreate in the community in which they live in that it incorporates the land
•, * use designations of the General Plan.
15 Conditions:
16 1. If any of the following conditions fail to occur, or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
*' implemented and maintained according to their terms, the City shall have the right to
revoke or modify all approvals herein granted; deny or further condition issuance of all
future building permits; deny, revoke or further condition all certificates of occupancy
19 issued under the authority of approvals herein granted; record a notice of violation on the
property title; institute and prosecute litigation to compel their compliance with said
20 conditions or seek damages for their violation. No vested rights are gained by Developer
or a successor in interest by the City's approval of this Specific Plan Amendment, other
than those described in the Amended and Restated Development Agreement (DA
22 05-01(A)).
23 2. Staff is authorized and directed to make, or require Developer to make, all corrections
and modifications to the Specific Plan document(s) necessary to make them internally
24 consistent and in conformity with final action on the project. Development shall occur
substantially as shown in the approved Exhibits. Any proposed development different
from this approval, shall require an amendment to this approval.
26 Prior to approval of the Specific Plan Amendment, the Developer shall obtain a valid
27 Coastal Development Permit from the California Coastal Commission or its successor in
interest that substantially conforms to this approval. A signed copy of the Coastal
Development Permit must be submitted to the Planning Director. If the approval is
substantially different, an amendment to the Specific Plan 144 shall be required.
PC RESO NO. 6633 -4- \ 71
1 4. This approval is granted subject to the approval of EIR 03-05(A), DA 05-01(A), POP
2 00-02(B), RP 05-12(A), HMPP 05-08(A), and approved permit CDP 04-41 and is
subject to all conditions contained in Planning Commission Resolutions No. 6631, 6632,
3 6634,6635,6636, and 6092 for those other approvals incorporated herein by reference.
5. If any condition for construction of any public improvements or facilities, or the payment
of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project
are challenged, this approval shall be suspended as provided in Government Code
Section 66020. If any such condition is determined to be invalid this approval shall be
invalid unless the City Council determines that the project without the condition complies
7 with all requirements of law.
o0 6. Indemnification:
9
a. Developer shall and does hereby agree to indemnify, protect, defend, and hold
10 harmless the City of Carlsbad, its Council members, officers, employees, agents,
and representatives (collectively "Indemnified Parties"), from and against any and
11 all liabilities, losses, damages, demands, claims, and costs, including court costs
and attorney's fees incurred by the City arising, directly or indirectly, from
(i) City's approval and issuance of this Specific Plan Amendment, (ii) City's
, -, approval or issuance of any permit or action, whether discretionary or
nondiscretionary, in connection with the Carlsbad Seawater Desalination Plant
14 use contemplated herein, and (iii) Developer's installation and operation of the
Carlsbad Seawater Desalination Plant, including without limitation, any and all
15 liabilities arising from the emission by the Carlsbad Seawater Desalination Plant
of electromagnetic fields or other energy waves or emissions. These obligations
survive until all legal proceedings have been concluded and continue even if any
17 City approval giving rise to an indemnification obligation is not validated.
18 b. Owner shall and does hereby agree to indemnify, protect, defend, and hold
harmless Indemnified Parties, from and against any and all liabilities, losses,
damages, demands, claims, and costs, including court costs and attorney's fees
-„ incurred by the City arising, directly or indirectly, from (i) City's approval and
issuance of this Specific Plan Amendment, (ii) City's approval or issuance of
21 any permit or action, whether discretionary or nondiscretionary, in connection
with the use of the existing 95-acre Encina Power Station, and (iii) Owner's
22 installation and operation of the Encina Power Station, including without
limitation, any and all liabilities arising from the emission by the Encina Power
Station of electromagnetic fields or other energy waves or emissions. Owner's
24 duty to indemnify the Indemnified Parties does not include any and all liabilities,
losses, damages, demands, claims, costs, court costs, and attorney's fees arising,
25 directly or indirectly from the Carlsbad Seawater Desalination Plant. These
obligations survive until all legal proceedings have been concluded and continue
26 even if any City approval giving rise to an indemnification obligation is not
validated.
28 7. The approval shall become null and void if the project does not become operational
within 10 years of the final discretionary approval, including the discretionary
PCRESONO. 6633 -5-
approvals of the California Coastal Commission or other agencies, as may be
2 consistent with the Amended and Restated Development Agreement (DA 05-01(A)).
3 8. Developer shall implement, or cause the implementation of, the Precise Development
Plan and Desalination Plant Mitigation Monitoring and Reporting Program adopted by
4 City Council Resolution 2006-156.
9. As a condition of this approval, applicant must comply with the requirements of all
regulatory agencies having jurisdiction over the project and any mitigation requirements
of the environmental documents for the project.
7
10. Developer shall submit to the Planning Director a reproducible 24" x 36" mylar copy of
the Specific Plan reflecting the conditions approved by the final decision-making body.
9
1 1 . Developer shall include, as part of the plans submitted for any permit plan check, a
10 reduced legible version of all approving resolution(s) in a 24" x 36" blueline drawing
format (including any applicable Coastal Commission approvals and the Mitigation
Monitoring and Reporting Program).
12 12. Prior to the issuance of any permits for the project, the applicant shall submit to the
, , Planning Director a digital, editable copy and a camera-ready master copy of the
ENCINA SPECIFIC PLAN - SP 144(J), in addition to the' required number of bound
14 copies determined by the Planning Director.
15 13. Owner shall not challenge any aspect of the EIR 03-05(A) before the California Coastal
Commission or in any court of law for any reason or purpose.
16
NOTICE
18 Please take NOTICE that approval of your project includes the "imposition" of fees,
dedications, reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
20
You have 90 days from date of final approval to protest imposition of these fees/exactions. If
21 you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
22 processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
24
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
25 DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
27 NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
28
PC RESO NO. 6633 -6-
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PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on August 19,2009, by the following vote,
to wit:
AYES:
NOES:
Commissioners Baker, Dominguez, L'Heureux, Nygaard,
Schumacher, and Vice Chairperson Douglas
ABSENT: Chairperson Montgomery
ABSTAIN:
FARRAH DOUGLAS, Vice Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DONNEU
Planning Director
PCRESONO. 6633 -7-
1 PLANNING COMMISSION RESOLUTION NO. 6634
2 A RESOLUTION OF THE PLANNING COMMISSION OF THE
3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF AMENDED AND RESTATED
4 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
DESALINATION PLANT.
7 CASE NAME: DESALINATION PROJECT CHANGES
CASE NO.: DA 05-01 (A)8
o WHEREAS, Poseidon Resources (Channelside) LLC, "Developer," and the
10 City of Carlsbad ("City") have proposed an amendment to the Development Agreement for the
11 Carlsbad Seawater Desalination Plant, appurtenant facilities, and related project approvals
12 ("Project") as more completely described in Covenant 1 of the proposed Development
13
Agreement; and
14
WHEREAS, the property leased by the Developer for the Carlsbad Seawater
, fi Desalination Plant that is generally the subject of the Development Agreement is described as:
17 That portion of Lot "H" of Rancho Agua Hedionda in the City
of Carlsbad, County of San Diego, State of California,
18 according to Partition Map thereof No. 823, filed in the Office
of the County Recorder of San Diego County, November 16,
1896, as described in Certificate of Compliance recorded
20 October 30, 2001, as Document No. 2001-0789068, Parcel 4,
more particularly described as follows:
21
Commencing at the most southerly corner of said Parcel 4, also
22 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
24 record of survey no, 17350; thence along said westerly line,
north 22°30'13" west, 1319.08 feet; thence leaving said
25 westerly line at right angles, south 67°29'47" west, 58.72 feet to
the true point of beginning; thence south 67°31' 21" west,
26 229,72 feet; thence north 40°03' 53" west, 199.13 feet; thence
2? south 66°28' 49" west, 45.93 feet; thence north 22°28' 46" west,
587. 13 feet; thence north 67°31'14" east, 338.82 feet; thence
28 south 22°37'35" east, 536.65 feet; thence south 20-08'20" east,
115.20 feet; thence south 22°37' 35" east, 124.38 feet to the true
point of beginning.
1 ("the Property"); and
2
WHEREAS, the Carlsbad Seawater Desalination Plant and some appurtenant
3
facilities are proposed at the Encina Power Station; other appurtenant facilities, including water
4
<- conveyance pipelines and a pump station, are proposed offsite of the Encina Power Station and
5 in the cities of Carlsbad, Oceanside, San Marcos, and Vista; and
7 WHEREAS, Developer has proposed minor and immaterial modifications to the
o0 site plan and the alignment of offsite product water pipelines and other appurtenant facilities; and
9 WHEREAS, said modifications have been reflected in the Amended and Restated
10
Development Agreement dated August 19, 2009, attached hereto to draft City Council ordinance
Exhibit 3 and on file in the Planning Department DESALINATION PROJECT CHANGES -
13 DA 05-01(A) as provided by Government Code 65864 et seq., Chapter 21.70 of the Carlsbad
14 Municipal Code, and City Council Policy 56; and
15 WHEREAS, the Planning Commission did on August 19, 2009, hold a duly
noticed public hearing as prescribed by law to consider said request; and
17
WHEREAS, at said public hearing, upon hearing and considering all testimony
18
and arguments, if any, of all persons desiring to be heard, examining the Amended and
20 Restated Development Agreement, analyzing the information submitted by City staff, and
21 considering written and oral comments received, said Commission considered all factors
22 relating to the Amended and Restated Development Agreement.
23 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
24
Commission of the City of Carlsbad as follows:
25
A) That the foregoing recitations are true and correct.
26
27 B) That based on the evidence presented at the public hearing, the Commission
RECOMMENDS APPROVAL of the Amended and Restated Development
28 Agreement for the DESALINATION PROJECT CHANGES - DA 05-01(A),
based on the following findings and subject to the following conditions:
PCRESONO. 6634 -2-
Findings:
2 1. Approval of the Amended and Restated Development Agreement complies with all the
3 provisions of state law (Government Code Section 65864 et seq.) which enables the City
to enter into such agreements including the following:
4
a. The Amended and Restated Development Agreement specifies the duration of the
agreement, the permitted uses of the property, the density or intensity of use, the
6 maximum height and size of proposed buildings, and provisions for reservation or
dedication of land for public purposes as the Agreement incorporates the
7 Desalination Project Changes project (as described in Precise Development Plan
PDP 00-02(6) and the Addendum to Environmental Impact Report EIR 03-05
° (EIR 03-05(A)) and other project approvals as amended.
9
b. The Amended and Restated Development Agreement includes conditions, terms,
10 restrictions, and requirement for subsequent discretionary actions; however, the
conditions, terms, restrictions, and requirements do not prevent development of the
11 land for the uses and to the density or intensity of development set forth in the
Amended and Restated Development Agreement, and are consistent with the
development standards, design guidelines, and other provisions of the
13 Desalination Project Changes project and existing rules, regulations, and policies.
14 c. Unless otherwise provided by the Amended and Restated Development Agreement,
rules, regulations, and official policies governing permitted uses of the land,
15 governing density and governing design, improvement, and construction standards
. fi and specifications, applicable to development of the property subject to the Amended
and Restated Development Agreement shall be those rules, regulations, and official
17 policies in force at the time of execution of the agreement.
18 d. The Amended and Restated Development Agreement does not prevent the City, in
subsequent actions applicable to the property, from applying new rules, regulations,
and policies which do not conflict with those rules, regulations, and policies
2Q applicable to the property as set forth in the Agreement, and which do not materially,
adversely affect the timing or phasing of construction of development as further set
21 forth in the Amended and Restated Development Agreement, nor does the
Amended and Restated Development Agreement prevent the City from denying or
22 conditionally approving any subsequent development project application on the basis
of noncompliance with existing rules, regulations, and policies.
4-tJ
24 e. The Amended and Restated Development Agreement includes terms and conditions
to ensure funding for public facilities in the South Carlsbad Coastal
25 Redevelopment Area.
2" f. The applicant for the Amended and Restated Development Agreement has a legal or
~7 equitable interest in the real property which is the subject of this Amended and
Restated Development Agreement.
28
g. The Amended and Restated Development Agreement requires an annual review at
which time the applicant shall be required to demonstrate good faith compliance with
PC RESO NO. 6634 -3-
the terms of the Amended and Restated Development Agreement. If, as a result of
2 such annual review, the City finds and determines, on the basis of substantial
evidence, that the applicant has not complied in good faith with terms or conditions of
3 the Amended and Restated Development Agreement, the City may terminate or
modify the Amended and Restated Development Agreement.
4
h. The Amended and Restated Development Agreement is consistent with the City's
Local Coastal Program in that the Project is consistent with, and includes elements
5 specifically intended to advance the goals of the State of California related to the
protection, maintenance, and where feasible, enhancement and restoration of the
7 overall quality of the coastal zone environment, and to maximize public access
and recreational opportunities along the coast.
o
o 2. Approval of the Amended and Restated Development Agreement complies with
Chapter 21.70 of the Carlsbad Municipal Code. All noticing, review, and other
10 procedural requirements have been accomplished in compliance with the Chapter. The
findings required by the Chapter have been met as follows:
11
a. The Amended and Restated Development Agreement is consistent with the
objectives, policies, general land uses, programs, and provisions specified in the
13 General Plan, and any applicable specific plan, in that the Amended and Restated
Development Agreement implements and legally references the other Project
14 approvals being considered. It does not permit anything that is inconsistent or
does not conform to these other approvals. It does not change or modify the
15 zoning, General Plan designations, the Specific Plan regulations or the Precise
., Development Plan being considered under the other Project actions. It will not
become effective unless the other Project approvals are given. Therefore, it is
17 consistent with the General Plan, the zoning, the applicable Specific Plan and the
Precise Development Plan for the Property. Additionally, the Project will
18 achieve the South Carlsbad Coastal Redevelopment Plan goals to enhance
commercial and recreational functions and increase parking and open space
amenities in the Project area and is consistent with the Plan's permitted uses. It
20 further is in conformity with public convenience, general welfare, and good land
use practices and will not be detrimental to the health, safety, and welfare of the
21 community.
22 b. The Amended and Restated Development Agreement is compatible with the uses
authorized in and the regulations prescribed for the land use district in which the real
property is located and all other provisions of Title 21 of the Carlsbad Municipal
24 Code, in that the Amended and Restated Development Agreement is consistent
with the uses in and the regulations prescribed for the Public Utilities (P-U)
25 Zone in which the real property is located and the provisions of Title 21 of the
Carlsbad Municipal Code. The Amended and Restated Development Agreement
" implements and incorporates by reference the other project actions and
27 approvals, including the Precise Development Plan, the approval of which is a
requirement of Title 21 for development in the P-U Zone. These other actions
28 establish the permitted uses of the property, the density and intensity of use, the
maximum height and size of proposed buildings, and provisions for reservation
or dedication of land for public purposes. Further, as required by Chapter
PC RESO NO. 6634 -4-
21.70 of the Carlsbad Municipal Code, the Administrative Services Director
2 (Finance Director), the City Attorney, and the Planning Director have reviewed
the Amended and Restated Development Agreement and find that it does
3 conform to all of the applicable state laws, City ordinances, and City policies.
The Amended and Restated Development Agreement is in conformity with public
, convenience, general welfare, and good land use practices, in that it will result in a
use that has been planned in a comprehensive manner, which provides benefits
5 to the community in terms of water reliability and quality, recreation and
coastal access, and economics, and has been reviewed in terms of protecting the
7 general welfare of the community.
o d. The Amended and Restated Development Agreement will not be detrimental to
health, safety, and general welfare, in that it incorporates other project approvals,
which have been analyzed and found not to have a negative effect on the general
10 public health, safety, and welfare. Furthermore, the Amended and Restated
Development Agreement does not prevent the City from imposing emergency
1 measures related to the health, safety, and welfare of the community, nor does
the agreement limit the authority of other agencies. Finally, the Amended and
Restated Development Agreement requires the Developer to operate and
maintain the project in accordance with all applicable state and federal
environmental laws, notwithstanding any exemption the Developer may
14 otherwise have under international trade rules.
The Amended and Restated Development Agreement will not adversely affect the
1, orderly development of property or the preservation of property values in that the
Project has been comprehensively planned and conditioned in accordance with
17 all City and other agency requirements, including the California Environmental
Quality Act; and the majority of the project, with the exception of the
18 desalination plant building, appurtenant facilities at Encina Power Station, are
pipelines that will be placed underground in existing or future roads.
2Q f. The Amended and Restated Development Agreement is consistent with the
provisions of Government Code Sections 65864.5 - 65869.5, in that compliance with
21 the Government Code provisions is demonstrated in Finding No. 1 of this
resolution.
22
g. The Amended and Restated Development Agreement ensures provision of public
facilities in a manner consistent with the General Plan, in that since it incorporates
24 the other project actions and approvals, the Amended and Restated
Development Agreement identifies the public facilities, improvements, and
25 infrastructure needed to allow the project to be built and contains provisions
requiring compliance with the Growth Management Plan.26
h. The approval of the Amended and Restated Development Agreement will result in
the provision of economic, environmental, recreational, cultural, or social benefits to
28 the City which would not be attainable without its approval in that benefits are
detailed in Finding No. 3 of this resolution. The Amended and Restated
PC RESO NO. 6634 -5-
Development Agreement provides more certainty that the project will be built,
2 thus increasing the likelihood of resulting benefits.
3 3. The Amended and Restated Development Agreement has been drafted, processed,
negotiated, and reviewed in terms of compliance with City Council Policy No. 56.
4 Approval of the Amended and Restated Development Agreement conforms to the
, Council determinations identified in the Policy for approving an agreement as follows:
5 a. The proposed development is in the interests of the city in that it will provide
substantial economic, public recreation, and water reliability benefits to the
7 City. Roughly 80% (about $2 million) of the tax revenue from the Project will
go to the Carlsbad Housing and Redevelopment Commission to be used to fund
projects within the South Carlsbad Coastal Redevelopment Area including road
o improvements, water distribution facilities, sewer facilities, and support of
affordable housing programs. Further, if the Desalination Plant facilities are
10 relocated to property not covered by the Amended and Restated Development
Agreement, the Developer is required by the Agreement to pay liquidated
11 damages to the City of $15 million, which will be reduced by a specified amount
for each year the Developer pays the property taxes or mitigation fees specified
in the Agreement. The City's right to receive an economic benefit from the
13 Project is protected even in the event of the purchase (either through voluntary
sale or condemnation) by a governmental body. The payment of liquidated
14 damages and protected right to receive an economic benefit would not be
achievable without a development agreement.
.,- The Project also provides a local source of potable water to supplement
imported water supplies available to the City of Carlsbad and the San Diego
17 region, improve water reliability and enhance water quality. In so doing, the
Project also complements local and regional water conservation, and water
18 recycling programs. In addition, Project construction and operation will benefit
the economy through creation of jobs and increased spending. Furthermore, the
Project increases opportunities for public access to the coastal area through
20 public enhancements and dedications of coastal property.
21 b. The proposed development is a well-planned, comprehensive development, involving
more than one building, more than one phase of development, or some other
22 condition that the City Council considers justification for entering into a Amended
and Restated Development Agreement in that the Project consists of a multi-year,
multi-phased development with specialized components to be constructed in
24 several locations and in different jurisdictions. The Project features a complex
network of product water pipelines both on-site at the Encina Power Station and
25 off-site in the communities of Carlsbad, Oceanside, San Marcos, and Vista, that
are comprehensively planned to deliver water to existing distribution facilities,
26 and minimize impacts to sensitive habitats and resources and other utilities and
27 infrastructure. The Project will require a substantial expenditure by the
Developer of time and predevelopment costs and risk before approval of
28 building and other permits. This justifies and is a reasonable and appropriate
request for entering into an Amended and Restated Development Agreement. A
PC RESO NO. 6634 -6-
degree of certainty is needed so the Project can proceed forward in construction
2 and operation.
3 c. The proposed development will require a substantial expenditure by the applicant of
time, predevelopment costs, and "holding" costs prior to the approval of permits and
4 other land use entitlements in that the Developer will realize significant expense,
- risk, and time to design the Project and obtain all necessary permits from local,
state, and federal agencies to construct a project that desalinates seawater into
6 potable water, discharges brine into the ocean, and requires construction of a
complex and lengthy network of pipelines and infrastructure to deliver the
7 desalinated water into existing public water systems.
o d. The proposed development will require a substantial expenditure by the applicant to
o design and construct public infrastructure facilities that will benefit the community in
that the Developer will realize significant expense, risk, and time to design the
10 Project, obtain all necessary permits from local, state, and federal agencies, and
acquire necessary rights of way to construct a complex and lengthy network of
11 pipelines and infrastructure to deliver the desalinated water into existing public
water systems. Through the Water Purchase Agreement, the Carlsbad
Municipal Water District (the "District") may elect to own these pipelines and
13 other appurtenant facilities.
14 e. The proposed Amended and Restated Development Agreement is consistent with
the requirements of this Policy in that the City Attorney has determined that the
15 proposed Amended and Restated Development Agreement legally conforms to
, , all of the applicable state laws, City ordinances, and City policies.
17 f. The proposed Amended and Restated Development Agreement includes legally
binding commitments by the applicant to provide substantial public benefits over and
18 above those which the applicant would otherwise be obligated to provide as a
condition of project approval in the absence of a development agreement in that
many of the terms and conditions of the proposed Amended and Restated
2Q Development Agreement are intended to preserve for the benefit of the City,
District, and Carlsbad Housing and Redevelopment Commission the property
21 tax revenues that will be paid by the Project. If a successor of Poseidon does not
have an agreement with the City regarding payment of a mitigation fee or such
22 successor fails to pay property taxes, the Amended and Restated Development
Agreement establishes a mitigation fee that will be paid by Poseidon, or its
successors in interest. This mitigation fee is sufficient to fund all, or a significant
24 portion, of the most beneficial Redevelopment Plan projects to be undertaken.
The mitigation fee and property tax revenue have been secured for the City,
25 Carlsbad Municipal Water District, and Carlsbad Housing and Redevelopment
Commission through the proposed Amended and Restated Development
2" Agreement, the Water Purchase Agreement between the District and Poseidon
27 (September 2004). Therefore, the proposed Amended and Restated
Development Agreement includes legally binding commitments by Poseidon to
28 provide substantial public benefits over and above those which Poseidon
otherwise would be obligated to provide as a condition of approval in the
absence of the Amended and Restated Development Agreement.
PC RESO NO. 6634 -7-
1
2 g. It is unlikely that the proposed development, including the public benefits to be
derived therefrom, would occur when and as provided in the proposed Amended and
3 Restated Development Agreement in the absence of the vesting assurances
incorporated in the proposed Amended and Restated Development Agreement
because the Amended and Restated Development Agreement provides more
- certainty that the Project will be built and justifiably allows the applicant to
proceed with the Project in accordance with existing policies, rules and
5 regulations, and Project conditions.
7 4. The Amended and Restated Development Agreement removes uncertainty in the
approval of the Project which can result in a waste of resources, escalate the cost of
development, and discourage significant investment in the community and in a
commitment to comprehensive planning.
10 5. The Amended and Restated Development Agreement provides assurances to the
Developer that upon approval of the Project, the Developer may proceed with the
1 Project in accordance with existing policies, rules and regulations, and subject to
conditions of approval. This will strengthen the public planning process, encourage
private participation in comprehensive planning, and reduce the economic costs of
13 development.
14 Conditions:
15 1. This approval is granted subject to the approval of EIR 03-05(A), PDF 00-02(B), SP
16 144(1), and RP 05-08(A) and approved permit CDP 04-41 and is subject to all
conditions contained in Planning Commission Resolutions No. 6631, 6632, 6633, 6635,
17 6636, and 6092, for those other approvals incorporated herein by reference.
18 2. This approval is granted subject to the Mitigation and Monitoring and Reporting
19 Program adopted by City Council Resolution 2006-156 for the Precise Development
Plan and Desalination Plant project.
20
21 NOTICE
22 Please take NOTICE that approval of your project includes the "imposition" of fees,
dedications, reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
24 You have 90 days from date of final approval to protest imposition of these fees/exactions. If
25 you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
26 processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
28 You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
PCRESONO. 6634 -8-
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zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad held on August 19,2009, by the following vote, to wit:
AYES:Commissioners Baker, Dominguez, L'Heureux, Nygaard,
Schumacher, and Vice Chairperson Douglas
NOES:
ABSENT: Chairperson Montgomery
ABSTAIN:
FARRAH DOUGLASrVice Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
dx,
DONNEU
Planning Director
PC RESO NO. 6634 -9-
1 PLANNING COMMISSION RESOLUTION NO. 6635
A RESOLUTION OF THE PLANNING COMMISSION OF THE
3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF AN AMENDMENT TO REDEVELOPMENT
4 PERMIT RP 05-12 FOR THE CARLSBAD SEAWATER
DESALINATION PLANT AND ONSITE APPURTENANT
FACILITIES, WHICH WOULD BE LOCATED AT THE
6 ENCINA POWER STATION (EPS), AND FOR PRODUCT
WATER CONVEYANCE PIPELINES LOCATED OFFSITE OF
7 THE EPS BUT WITHIN THE BOUNDARIES OF THE SOUTH
CARLSBAD COASTAL REDEVELOPMENT AREA (SCCRA).
8 THE AMENDMENT WOULD RECONFIGURE THE
o APPROVED DESALINATION PLANT SITE AND MAKE
OTHER PLANT AND APPURTENANT FACILITY CHANGES
10 ON THE EPS PROPERTY LOCATED AT 4600 CARLSBAD
BOULEVARD AND WOULD SLIGHTLY MODIFY THE
11 PRODUCT WATER DELIVERY PIPELINE ALIGNMENT
BETWEEN THE EPS AND CANNON ROAD. AFFECTED
12 PROPERTIES INCLUDING THE ENCINA POWER STATION
13 ARE GENERALLY LOCATED NORTH OF CANNON ROAD
AND EAST AND WEST OF INTERSTATE 5 AND WITHIN
14 THE BOUNDARIES OF THE SCCRA AND LOCAL
FACILITIES MANAGEMENT ZONES 1, 3, AND 13.
15 CASE NAME: DESALINATION PROJECT CHANGES
., CASE NO.: RP 05-12CA)lo
17 WHEREAS, Poseidon Resources (Channelside) LLC, "Developer," has filed a
18 verified application with the City of Carlsbad Redevelopment Agency (RDA) regarding property
leased by the Developer for the Carlsbad Seawater Desalination Plant and property owned by
20 various owners, collectively "Owners," described as:
21
That portion of Lot "H" of Rancho Agua Hedionda in the City
22 of Carlsbad, County of San Diego, State of California,
according to Partition Map thereof No. 823, filed in the Office
of the County Recorder of San Diego County, November 16,
24 1896, as described in Certificate Of Compliance recorded
October 30, 2001, as Document No. 2001-0789068, Parcel 4,
25 more particularly described as follows:
**) f\Commencing at the most southerly corner of said Parcel 4, also
27 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
28 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, 1319.08 feet; thence leaving said
westerly line at right angles, south 67°29'47" west, 58.72 feet to
the true point of beginning; thence south 67°31' 21" west,
2 229,72 feet; thence north 40°03' 53" west, 199.13 feet; thence
south 66°28' 49" west, 45.93 feet; thence north 22°28' 46" west,
3 587. 13 feet; thence north 67°31'14" east, 338.82 feet; thence
south 22°37'35" east, 536.65 feet; thence south 20«08'20" east,
4 115.20 feet; thence south 22°37' 35" east, 124.38 feet to the true
s- point of beginning;
6 RP 05-12(A) also affects properties identified by Assessor's
Parcel Numbers 210-010-10, 210-010-41, 210-010-42, a portion
7 of 210-010-43, and 210-011-05
8 ("the Property"); and
9 WHEREAS, said verified application constitutes a request for an amendment to a
10
Redevelopment Permit as shown and described in the "Enema Power Station Precise
11
Development Plan PDP-02(B)" document and on Exhibits "A" - "P," both dated August 19,
13 2009, on file in the Planning Department DESALINATION PROJECT CHANGES - RP 05-
14 12(A) as provided and required by Sections 600 and 608 of the South Carlsbad Coastal
15 Redevelopment Area (SCCRA) Plan; and
16 WHEREAS, RP 05-12(A) applies to the Carlsbad Seawater Desalination Plant
17 and all appurtenant facilities located onsite and offsite of the EPS and within the boundaries of
18
the SCCRA Plan; and
19
._„ WHEREAS, Developer has applied to the City for minor and immaterial
21 modifications to the Carlsbad Seawater Desalination Plant site plan and design plan to
22 consolidate and better utilize the site and a minor adjustment to the product water delivery
yi pipeline alignment from the EPS to Cannon Road; and
24 WHEREAS, Section 600 of the Redevelopment Plan states a desalination plant,
25
including its appurtenant facilities, may be permitted in the SCCRA only if the Housing and
26
Redevelopment Commission approves a finding that: 1) the desalination plant serves an
2g extraordinary public purpose; 2) a precise development plan which sets forth standards for
PC RESO NO. 6635 -2-
development of the desalination plant is first approved by the Housing and Redevelopment
2 Commission; and 3) the Commission has issued a Redevelopment Permit for the Project; and
3
WHEREAS, processed concurrently with RP 05-12(A) is proposed Precise
4
Development Plan PDF 00-02(B), which establishes the development standards for the
6 desalination plant and reflects said modifications; and EIR 03-05(A), an addendum to Final
7 Environmental Impact Report EIR 03-05, which provides location and other information on
o
appurtenant facilities located offsite of the Encina Power Station and within the boundaries of the
9 SCCRA Plan; and
10
WHEREAS, the Planning Commission is the review body for recommending and
11
processing land use permits proposed in the SCCRA; and
13 WHEREAS, on May 3, 2006, the Planning Commission considered RP 05-12,
14 the initial Redevelopment Permit issued for the Carlsbad Seawater Desalination Plant and
15 appurtenant facilities and for which an amendment is now sought, and found the desalination
plant serves an extraordinary public purpose to the City of Carlsbad, the RDA, and the citizens
17
of Carlsbad for several reasons, including that the project would supply a secure, reliable, and
18
redundant water supply, and would provide economic benefits and dedications of land for public
2Q purposes; and
21 WHEREAS, the Planning Commission did on August 19, 2009 hold a duly
22 noticed public hearing as prescribed by law to consider RP 05-12(A); and
23 WHEREAS at said public hearing, upon hearing and considering all testimony
24
and arguments, examining RP 05-12(A), analyzing the information submitted by City staff, and
25
considering any written and oral comments received, the Planning Commission considered all26
27 factors relating to RP 05-12(A); and
28
PC RESO NO. 6635 -3-
WHEREAS, in its deliberations, the Planning Commission considered whether
2 the modifications proposed to the desalination plant and appurtenant facilities through RP 05-
3
12(A) serve an extraordinary public purpose.
4
5 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
6 Commission of the City of Carlsbad as follows:
7 A) That the foregoing recitations are true and correct.
o B) That based on the evidence presented at the public hearing, the Commission
9 RECOMMENDS APPROVAL of DESALINATION PROJECT CHANGES
- RP 05-12(A), based on the following findings and subject to the following
10 conditions:
11 Findings:
12 1. The City of Carlsbad Planning Commission hereby finds the DESALINATION
PROJECT CHANGES - RP 05-12(A) serves an extraordinary public purpose to the
13 City of Carlsbad, the RDA, and the citizens of Carlsbad as demonstrated by the following
benefits:
14 a. Security of Water Supply: The need for a diverse water portfolio was illustrated
15 by the early 1990's drought, when the San Diego County Water Authority
(CWA) reduced water supplies to its member agencies, including Carlsbad, by
1" 30% and was considering 50% reductions. According to the CWA Regional
Water Facilities Master Plan (RWFMP), the CWA currently imports nearly
600,000 acre feet per year (AFY) from the Metropolitan Water District (MWD),
18 but is only legally entitled to approximately 300,000 AFY. This makes the
region's imported water supply highly vulnerable to water shortages and supply
19 disruptions. The Colorado River is a major source of water supply for
California, Nevada, and Arizona. California has traditionally used more than its
allocated 4.4 million acre feet (MAF) per year because Arizona and Nevada did
2| not use their full allocations. Arizona and Nevada's increasing water needs have
led to demands that California reduce its usage to its 4.4 MAF allocation.
22 Potential threats to future deliveries of water from the Sacramento-San Joaquin
Bay Delta, such as a severe decline in fish populations, levee instability, and a
23 series of adverse court rulings, have also lead to reductions in the amount of
water that can be delivered from Northern to Southern California through the
State Water Project.
25 The project will allow the City of Carlsbad Municipal Water District (CMWD)
to purchase up to 100% of its potable water supply needs from the desalination
plant, thus providing a secure local water supply that is not subject to the
27 variations of drought or political and legal constraints on water supplies
(Appendix B to Final Environmental Impact Report EIR 03-05, Sections 1.2 and
28 10.1).
b. Redundant Water Supply: The project will provide water supply redundancy
for the City, strengthening security and reliability of water supply for residents
PCRESONO. 6635 -4- \
and businesses. The CMWD will maintain its membership in and right to
2 purchase water at the CWA, while receiving up to 100% of its potable water
supply needs from the Project, thereby creating a redundant supply of water
3 available in the event of catastrophe or unforeseen circumstances (Appendix B
to Final ER 03-05, Section 13). The Project will add approximately 21,000 AFY
dedicated to CMWD, thus replacing its current supply and increasing the
reliability of CMWD's water supply.
Reliable Water Supply: The desalination plant will provide a reliable water
supply for 30 years with two possible 30-year extensions (Appendix B to Final
DR 03-05, Section 2.). The City is protected from shortfalls in delivery under the
terms of the Water Purchase Agreement (Appendix B to Final ER 03-05,
Sections 9 and 14).
d. High Quality Drinking Water: The project will provide high quality drinking
water that will compare favorably with the water supply that can be purchased
10 from the CWA. The project will deliver a drinking water supply to the City that
meets all State and Federal health standards, as well as provide a reduction in
11 the total dissolved solids (TDS) compared to imported water from the Colorado
River and Sacramento-San Joaquin Delta provided by the CWA. The
desalinated water TDS will be monitored on a weekly basis and shall not exceed
350 mg/L in more than half the samples taken. Additionally, 90% of the samples
shall be less than 400 mg/L. The City is not obligated to accept or pay for water
14 that does not meet the quality standards (Appendix B to Final EIR 03-05,
Section 8 and Schedule 8.2.). Imported water has a TDS of 466-574 mg/L
15 (Metropolitan Water District 2005 Water Quality Report for the Skinner
Filtration Plant).16
Economic Benefits: The project will achieve the SCCRA Plan goal to strengthen
17 the economic base of the Project Area and the community. The project will
provide the City with desalinated water at a predictable and reasonable price
through the long-term Water Purchase Agreement, which sets agreed-upon
19 water rates (Appendix B to Final EIR 03-05).
The desalination plant will generate up to $2.4 million per year in increased
property tax revenue. Because the project site is located within the South
Carlsbad Redevelopment Project, an estimated $2.0 million per year of the tax
revenue will be allocated directly to the RDA (Exhibit 2, page 7, of CMWD
22 Agenda Bill 577, dated September 28, 2004, regarding adoption of Resolution
1226, approving the Water Purchase Agreement). The project will also generate
23 up to $2.9 million per year in increased business tax revenue.
24 f. Positive Economic Impact on Ability to Attract and Retain Business: The
desalination plant will create a drought-resistant, reliable water supply for the
25 City of Carlsbad that will provide the stability necessary to attract and retain
high-tech and biotechnology businesses which are dependent on a reliable water
supply for their research and manufacturing processes. These businesses
27 provide high skill, high wage jobs in the City of Carlsbad that enhance the
overall economy of the community.
28 The project will provide an extraordinary benefit to the residents and businesses
of the City by generating approximately $2.4 million per year in property tax
revenue, 85% of which will remain in the City to support schools, municipal
PC RESONO. 6635 -5- \ ,\ ([
1 services, and the RDA (Exhibit 2, page 7, of CMWD Agenda Bill 577, dated
2 September 28, 2004, regarding adoption of Resolution 1226, approving the
Water Purchase Agreement). Among other things, this revenue can be used to
3 support the proposed public improvements identified in Exhibit C of the
Redevelopment Plan. Additionally, the project will generate substantial tax
4 revenues that will go to the general funds of Carlsbad and other San Diego
<- County cities to support police, fire, health, welfare, and transportation. Good
public services help to attract high quality businesses.
6 g. Acquisition of Land for Public Purpose: The project will advance the goals of
7 the SCCRA Plan and the California Coastal Act to develop new beach and
coastal recreational opportunities. The project is consistent with and includes
3 elements specifically intended to advance the goals of the State of California and
the City related to the protection, maintenance, and enhancement of the overall
9 quality of the coastal zone environment, while maximizing public recreational
opportunities along the coast. The project will achieve the SCCRA Plan goals to
enhance commercial and recreational functions and increase parking and open
11 space amenities in the project area.
Through the Precise Development Plan for this project, Cabrillo Power, the
^2 Encina Power Station owner, has offered several acres of dedications to the City
,., for the public's benefit and for marine research. Each dedication, in the form of
an easement, title transfer, or deed restriction, would further Coastal Act goals
14 of maximizing public access and recreational opportunities along the coast. The
dedications are described below:
• Fishing Beach — An easement for this site, along the shore of Agua
16 Hedionda Lagoon and next to Carlsbad Boulevard, would be dedicated for
public recreational and coastal access use, including public parking.
• Bluff Area — The Bluff Area, located on the west side of Carlsbad Boulevard
13 and opposite the Power Station, is proposed to be dedicated in fee title to the
City for recreational and coastal access uses.
19 • Hubbs Site — The Hubbs Site, along the lagoon north shore, consists of the
20 land between the existing Hubbs Sea World Research Institute and the
railroad tracks. The site is proposed to be deed restricted to uses such as a
21 fish hatchery, aquatic research, and trails.
22 • South Power Plant Public Parking Area — An easement for this site, along
the east side of Carlsbad Boulevard and near'the south entrance to the power
23 plant, would be dedicated for public parking.
24 Further, a condition of approval of the Precise Development Plan also
enhances the public recreation through the dedication of an easement for the
25 Coastal Rail Trail.
26 h. Restore and Enhance the Marine Environment: As a wholesale water supplier
regulated by the California Department of Health Services, Poseidon Resources
27 will be subject to the provisions of the federal Safe Drinking Water Act that
require restoration, protection, and enhancement of watersheds upstream of a
source of drinking water supply. As a result, Poseidon has been and will likely
remain actively involved in activities aimed at protecting, restoring, and
enhancing the health and vitality of Agua Hedionda Lagoon, the surroundi
PCRESONO. 6635 -6- Hi'
30-square-mile watershed upstream of the Lagoon, and the near shore
2 environment. Through board participation, financial contributions, and activity
involvement, Poseidon currently supports nonprofit organizations that protect
3 the lagoon habitat, including the Agua Hedionda Lagoon Foundation and Hubbs
Sea World Research Institute. Additionally, the project proposes to deed restrict
approximately 2 acres of vacant land located on the north side of the lagoon
between the Hubbs Sea World Research Institute and nearby railroad tracks for
uses such as marine research and expansion of the Hubbs facility.
Regional Leadership Role: Creation of a 50 million gallon per day (mgd)
desalination facility will enhance the position of the City of Carlsbad as a
Statewide and Regional leader in water supply by creating a new supply called
for in the State Department of Water Resources 2005 California Water Plan and
the CWA's Urban Water Management Plan.
9 2. That the proposed changes to the desalination project can be approved because the
\ 0 underlying Public Utilities (P-U) zoning district requires the approval of an official
Precise Development Plan prior to the approval of building permits for allowed
11 uses, and PDF 00-02(B), processed and approved concurrently with RP 05-12(A),
serves as the code-mandated regulatory document for the subject property.
Furthermore, granting of a precise development plan, along with approval of a
,-, redevelopment permit and finding of extraordinary public purpose are
requirements to approve a desalination plant and its appurtenant facilities in the
14 South Carlsbad Coastal Redevelopment Area.
15 3. As demonstrated in Finding 1 above, the project complies with several SCCRA Plan
goals, which are listed in Section IV (400) of the Plan. Furthermore, the project also
complies with these other applicable Plan goals:
17 a. Locating the Carlsbad Seawater Desalination Plant in a location that creates
the least amount of constraints on any future conversion of the Encina
Power Station facilitates the redevelopment of the Encina power generating
facility to a smaller, more efficient power generating plant. Furthermore, the
consolidation of appurtenant facilities onto the desalination plant site as well as
20 undergrounding and relocating of the pipelines and intake pump station
enhances redevelopment opportunities at the EPS.
21
«~ b. Implement performance criteria to ensure quality site design and environmental
standards to provide unity and integrity to the entire Redevelopment Plan area.
23 The desalination plant exhibits a quality design that is sensitive to its
environment and non-utility surroundings. As a regulatory document, the
24 Precise Development Plan establishes development standards and review
procedures for the Encina Power Station and the desalination plant. Further, the
project has been reviewed concurrently with the processing and certification of
the Addendum to Environmental Impact Report EIR 03-05, compliant with the
provisions of the California Environmental Quality Act.
4. The project is consistent with the General Plan in that it implements goals stated in
the Vision section of the General Plan. The project will provide a high-quality,
reliable water supply to the residents of Carlsbad, thereby fulfilling the
General Plan vision statement, "A City which provides adequate public
PC RESO NO. 6635 -7-
facilities to preserve the quality of life of its residents."" Additionally, a
2 reliable drinking water supply is a major issue for all Southern California
jurisdictions, and by providing up to one hundred percent of Carlsbad's
3 drinking water, the project helps to fulfill another General Plan vision
statement, "A City which recognizes its role as a participant in the solution of
regional issues."
Further, the project also helps to fulfill the vision goal of "A City committed to
economic growth of progressive commercial and industrial businesses to serve
the employment, shopping, recreation, and service needs of its residents." The
7 project will create new jobs and new economic activity in Carlsbad and provide
a reliable water supply that businesses can count on for sustainable economic
g activity.
. The project is also consistent with the General Plan in that it implements goals of
the Land Use Element. The project is consistent with the Public Utility (U) land
10 use designation of the Encina Power Station and product water conveyance
pipelines are permitted in any land use designation. Further, the modern
1 1 office/industrial building appearance and appropriate screening of equipment
and chemical storage areas complies with the sensitive design objective of
Overall Land Use Pattern Policy C.6, which states, "Review the architecture of
buildings with the focus on ensuring the quality and integrity of design and
enhancement of the character of each neighborhood."
6. The project is consistent with the Encina Specific Plan 144 in that:
IS a. It complies with applicable Specific Plan standards and requirements
adopted over the years regarding architectural review, building height,
exterior lighting, and rooftop mechanical equipment.
17 b. Since the project proposes no changes to the operation of the Encina Power
Station and only limited changes to its facilities (e.g., removal of a fuel oil
storage tank, seawater discharge channel connections, rerouting and
removal, as appropriate, of existing support infrastructure, such as piping,
and potential demolition of the administration building), the project does
20 not conflict with Specific Plan standards and requirements regarding power
station operations.
21 c. The proposed amended and restated Encina Specific Plan, SP 144(J),
22 incorporates the land use designations of the City of Carlsbad General Plan,
with which the project is consistent. Additionally, SP 144(J) would
23 incorporate by reference PDP 00-02(B).
24 7. The project is in conformance with the Agua Hedionda Land Use Plan and all
applicable policies in that the project has been reviewed for consistency with
25 relevant coastal policies including land use, habitat protection, grading and
drainage, storm water management, recreation, shoreline access, and visual
resources. In particular, the project complies with the Land Use Plan building
27 height limitation of 35 feet. Furthermore, the project has received approval of a
coastal development permit from the California Coastal Commission.
98 8. The project is consistent with the City's adopted Scenic Corridor Guidelines, which
apply to Carlsbad Boulevard and the North County Transit District railroad corridor,
in that it features a quality building design and appropriate visual screening.
PC RESO NO. 6635 -8-| M
The project is consistent with the Citywide Facilities and Improvements Plan, the
2 Local Facilities Management Plan for Zones 1, 3 and 13 and all City public facility
policies and ordinances. The project includes elements or has been conditioned to
3 construct or provide funding to ensure that all facilities and improvements regarding
sewer collection and treatment; water; drainage; circulation; fire; schools; parks and
other recreational facilities; libraries; government administrative facilities; and open
, space, related to the project will be installed to serve new development prior to or
concurrent with need. Specifically:
" a. The project has been conditioned to provide proof from the Carlsbad Unified
School District that the project has satisfied its obligation for school facilities.
b. All necessary public improvements have been provided or are required as
conditions of approval.
9 c. Other than its obligation to provide funding for school facilities, the project does
not generate any facility plan improvement requirements or funding.
10 10. As conditioned, the project is consistent with the City's Landscape Manual
11 (Carlsbad Municipal Code Section 14.28.020 and Landscape Manual Section I B).
, 2 H. The Planning Commission hereby finds that all development in Carlsbad benefits from
the Habitat Management Plan for Natural Communities in the City of Carlsbad, Final
13 Approval November 2004 (HMP), and USFWS Incidental Take Permit No. TE022606-0,
which is a comprehensive conservation plan and implementation program that will
14 facilitate the preservation of biological diversity and provide for effective protection and
conservation of wildlife and plant species while continuing to allow compatible
development in accordance with Carlsbad's Growth Management Plan. The Carlsbad
City Council's approval of and issuance of the HMP Permit for the project satisfies the
project's permitting requirements under the Endangered Species Act and no further
17 approvals from the USFWS are required. .Preservation of wildlife habitats and sensitive
species is required by the Open Space and Conservation Element of the City's General
Plan which provides for the realization of the social, economic, aesthetic and
, Q environmental benefits from the preservation of open space within an increasingly urban
environment. Moreover, each new development will contribute to the need for additional
20 regional infrastructure that, in turn, will adversely impact species and habitats. The In-
Lieu Mitigation Fee imposed on all new development within the City is essential to fund
21 implementation of the City's Habitat Management Plan.
22 12. The Planning Commission has reviewed each of, the exactions imposed on the
23 Developer contained in this resolution, and hereby finds, in this case, that the
exactions are imposed to mitigate impacts caused by or reasonably related to the
24 Project, and the extent and the degree of the exaction is in rough proportionality to
the impact caused by the Project.
25
_,, Conditions;
ZD
27 Note:
a) All conditions of approval apply only to the desalination plant and appurtenant
28 facilities and not to existing facilities of the Encina Power Station.
b) Unless otherwise specified herein, all conditions shall be satisfied prior to issuance
of grading or building permits for the desalination plant, whichever occurs first.
PCRESONO. 6635 -9-
General
2 If any of the following conditions fail to occur; or if they are, by their terms, to be
3 implemented and maintained over time, if any of such conditions fail to be so
implemented and maintained according to their terms, the RDA shall have the right to
revoke or modify all approvals herein granted; deny or further condition issuance of all
<. future building permits; deny, revoke or further condition all certificates of occupancy
issued under the authority of approvals herein granted; record a notice of violation on the
6 property title; institute and prosecute litigation to compel their compliance with said
conditions or seek damages for their violation. No vested rights are gained by Developer
7 or a successor in interest by the RDA's approval of this Redevelopment Permit, other
than those described in the Amended and Restated Development Agreement (DA
8 05-01(A).
9 2. Staff is authorized and directed to make, or require the Developer to make, all corrections
10 and modifications to the Redevelopment Permit RP 05-12(A) documents, as necessary
to make them internally consistent and in conformity with the final action on the project.
Development shall occur substantially as shown on the approved Exhibits. Any proposed
development different from this approval shall require an amendment to this approval.
13 3. As a condition to approval of the Redevelopment Permit, the Developer shall obtain a
valid Coastal Development Permit from the California Coastal Commission or its
14 successor in interest that substantially conforms to this approval. A signed copy of the
Coastal Development Permit must be submitted to the Planning Director. If the approval
is substantially different, an amendment to the Redevelopment Permit 05-12(A) shall be
1... required.
17 4. Developer shall implement, or cause the implementation of the Precise Development
Plan and Desalination Plant Mitigation Monitoring and Reporting Program adopted by
18 City Council Resolution 2006-156.
19 5. This approval is granted subject to the approval of EIR 03-05(A), SP 144(J), DA 05-
20 01(A), POP 00-02(B), HMPP 05-08(A), and approved permit CDP 04-41 and is
subject to all conditions contained in Planning Commission Resolutions No. 6631, 6632,
21 6633, 6634, 6636, and 6092 for those other approvals incorporated herein by reference.
22 6. Owner shall not challenge any aspect of EIR 03-05(A) before the California Coastal
Commission or in any court of law for any reason or purpose.
24 7. The Encina Power Station has a once-through seawater cooling system. The
seawater intake is located in Agua Hedionda Lagoon and the outfall is a channel to
25 the ocean located south of the mouth of Agua Hedionda Lagoon. The Desalination
Plant is planned to operate in conjunction with the EPS by using the EPS cooling
water discharge as its source water and by discharging the brine that is the
27 by-product of the desalination process back into the EPS discharge, which in turn is
released from the EPS outfall. In the event that the EPS were to permanently cease
28 operations, and the Developer were to independently operate the existing EPS
seawater intake and outfall for the benefit of the project, such independent
operation will require CEQA compliance and permits to operate as required by
PCRESONO. 6635 -10- •• j C
then-applicable rules and regulations of the City and other relevant agencies. The
2 Developer will not independently operate the EPS intake and/or outfall unless and
until CEQA compliance is completed and any required permits have been issued.
3
8. If any condition for construction of any public improvements or facilities, or the payment
of any fees in-lieu thereof, imposed by this approval or imposed by law on this project
are challenged, this approval shall be suspended as provided in Government Code
Section 66020. If any such condition is determined to be invalid, this approval shall be
invalid unless the City Council determines that the project without the condition complies
with all requirements of law.
9. Developer shall comply with all applicable provisions of federal, state, and local laws and
regulations in effect at the time of building permit issuance.
9
10. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold
10 harmless the RDA, its governing body members, officers, employees, agents, and
representatives, from and against any and all liabilities, losses, damages, demands, claims
and costs, including court costs and attorney's fees incurred by the RDA arising, directly
or indirectly, from (a) the RDA's approval and issuance of this Redevelopment Permit
RP 05-12(B), (b) the RDA's approval or issuance of any permit or action, whether
13 discretionary or nondiscretionary, in connection with the use contemplated herein, and
(c) Developer/Operator's installation and operation of the facility permitted hereby,
14 including without limitation any and all liabilities arising from the emission by the
facility of electromagnetic fields or other energy waves or emissions. This obligation
survives until all legal proceedings have been concluded and continues even if the RDA's
, r approval is not validated.
17 11. Prior to the issuance of a building permit, the Developer shall provide proof to the
Director from the Carlsbad Unified School District that this project has satisfied its
18 obligation to provide school facilities.
12. Building permits will not be issued for this project unless the local agency providing
2Q sewer services to the project provides written certification to the City that adequate sewer
facilities are available to the project at the time of the application for the building permit,
21 and that sewer capacity and facilities will continue to be available until the time of
occupancy.
22
13. Developer shall pay the city wide Public Facilities Fee imposed by City Council Policy
#17, the License Tax on new construction imposed by Carlsbad Municipal Code Section
24 5.09.030, and CFD #1 special tax (if applicable), subject to any credits authorized by
Carlsbad Municipal Code Section 5.09.040. Developer shall also pay any applicable
25 Local Facilities Management Plan fee for Zones 1, 3 and 13, pursuant to Chapter 21.90.
All such taxes/fees shall be paid at issuance of building permit. If the taxes/fees are not
paid, this approval will not be consistent with the General Plan and shall become void.
27 14. This project shall comply with all conditions and mitigation measures which are required
28 as part of the Zones 1, 3 and 13 Local Facilities Management Plans and any amendments
made to those Plans prior to the issuance of building permits. Should amendments
PCRESONO. 6635 -11-
occur to the LFMPs, the applicant shall comply subject to the limitations of the
2 Amended and Restated Development Agreement (DA 05-01(A)).
3 15. The approval shall become null and void if the project does not become operational
within 10 years of the final discretionary approval, including the discretionary
approvals of the California Coastal Commission or other agencies, as may be
- consistent with the Amended and Restated Development Agreement (DA 05-01(A)).
6 16. As a condition of this approval, Developer must comply with the applicable requirements
of all regulatory agencies having jurisdiction over the project.
7
17. This project has been found to result in impacts to wildlife habitat or other lands, such as
agricultural land, non-native grassland, and disturbed lands, which provide some benefits
to wildlife, as documented in the City's Habitat Management Plan and the environmental
analysis for this project. Developer is aware that the City has adopted an In-Lieu
10 Mitigation Fee consistent with Section E.6 of the Habitat Management Plan and City
Council Resolution No. 2000-223 to fund mitigation for impacts to certain categories of
11 vegetation and animal species. The Developer is further aware that the City has
determined that all projects will be required to pay the fee in order to be found consistent
with the Habitat Management Plan and the Open Space and Conservation Element of the
General Plan. The City is currently updating the fee study, which is expected to result in
an increase in the amount of the fee, and the Developer or Developer's successor(s) in
14 interest shall pay the adjusted amount of the fee once it is approved by the City Council.
The fee shall be paid prior to recordation of a final map, or issuance of a Precise Grading
Permit or building permit, whichever occurs first. If the In-Lieu Mitigation Fee for this
-, project is not paid, this project will not be consistent with the Habitat Management Plan
and the General Plan and any and all approvals for this project shall become null and
17 void.
18 18. Developer shall submit to the Housing and Redevelopment Director and the Planning
Director a reproducible 24" x 36" mylar copy of the Redevelopment Permit reflecting
the conditions approved by the final decision-making body.
20 19. Developer shall include, as part of the plans submitted for any permit plan check, a
21 reduced legible version of all approving resolution(s) in a 24" x 36" blueline drawing
format (including any applicable Coastal Commission approvals and the Mitigation
22 Monitoring and Reporting Program).
23 20. The desalination plant site shall be landscaped according to the following
24 requirements:
25 a. Prior to the issuance of precise grading or building permits, Developer shall submit
and obtain Planning Director approval of Final Landscape and Irrigation Plans
showing conformance with the conditions herein and the City's Landscape Manual.
27 Developer shall construct and install all landscaping as shown on the approved Final
Plans and according to the conditions of approval, and maintain all landscaping in
28 a healthy and thriving condition, free from weeds, trash, and debris.
PCRESONO. 6635 -12-
b. The first submittal of Final Landscape and Irrigation Plans shall be pursuant to the
2 landscape plan check process on file in the Planning Department and accompanied by
the project's Precise Grading Plans.
3
c. Proposed planter areas along the west and south perimeters of the desalination
plant site as shown on approved plans shall be landscaped with, at a minimum,
c trees, shrubs, and groundcover consistent with the Landscape Manual.
Furthermore, the retaining wall along the west perimeter shall be enhanced with
6 vines.
7 d. As part of the review of the Final Landscape and Irrigation Plans, the need for
screening of the loading, trash, equipment and service areas of desalination plant
site, as viewed from vantage points within the Encina Power Station, shall be
o evaluated. If the Planning Director determines screening of these areas is
necessary, Developer shall revise plans for the perimeter planters as needed.
10 Furthermore, the Planning Director also reserves the right to determine the need
for said screening during final inspection of the desalination plant site.
11
The purpose of this condition is not to mitigate a significant visual impact as
identified in EIR 03-05; rather, it is to reasonably screen those specified areas
from future public uses that may locate on the Encina Power Station (EPS)
property if it redevelops. Considering the current use of the EPS, it is the
14 screening capability of plants, rather than their size at time of planting that is
important.
15
21. Prior to final inspection, Developer shall construct trash receptacle and recycling areas
enclosed by a six-foot high masonry wall with gates pursuant to City Engineering
17 Standards and Carlsbad Municipal Code Chapter 21.105. Prior to the issuance of precise
grading or building permits, the Planning Director shall approve location of said
18 receptacles. Enclosure shall be of similar colors and/of materials to the project to the
satisfaction of the Planning Director.
20 2la. Rooftop parapet walls shown on existing Exhibit E-l over the administration portion of
the administration/RO building may be extended to the RO portion of the building with
21 the intent to accommodate the installation of solar-energy panels on the rooftop. Prior to
the issuance of precise grading or building permits, the Planning Director shall review
22 and approve parapet wall height, material, and .location details to ensure architectural
design integrity is maintained while concurrently accommodating optimum solar panel
configuration.
24
22. Developer shall report, in writing, to the Housing and Redevelopment Director and the
25 Planning Director within 30 days, any address change from that which is shown on the
permit application.
26 F
23. Prior to the issuance of precise grading or building permits, whichever occurs first,
Developer shall submit to the RDA a Notice of Restriction to be filed in the office of the
28 County Recorder, subject to the satisfaction of the Housing and Redevelopment
Director and the Planning Director, notifying all interested parties and successors in
interest that the RDA of Carlsbad has issued a Redevelopment Permit, as amended by
PC RESO NO. 6635 -13- < \Z
RP 05-12(A), Resolution No. 6635, on the property. Said Notice of Restriction shall note
2 the property description, location of the file containing complete project details and all
conditions of approval as well as any conditions or restrictions specified for inclusion in
3 the Notice of Restriction. The Planning Director has the authority to execute and record
an amendment to the notice which modifies or terminates said notice upon a showing of
good cause by the Developer or successor in interest.
Engineering:
6
24. Prior to hauling dirt or construction materials to or from any proposed construction site
7 within this project, Developer shall apply for and obtain approval from the City Engineer
for the proposed haul route.
o
9 25. Based upon a review of the proposed grading and the grading quantities shown on the
Site Plan, grading permits for this project are required for the rough and precise
10 grading. Developer shall prepare and submit plans and technical studies/reports, for City
Engineer review, and shall pay all applicable grading plan review fees for the rough and
precise grading per the City's latest fee schedule.
12 26. Developer shall apply for and obtain grading permits from the City Engineer for the
13 rough and precise grading. Developer shall pay all applicable grading permit fees per
the City's latest fee schedule and shall post security per City Code requirements.
14
27. Prior to construction of water conveyance pipelines, Developer shall obtain all
necessary permits and clearances as required by the Carlsbad Municipal Code.
16 28. Prior to the issuance of any precise grading or building permits, Developer shall
17 execute and record a City standard Development Improvement Agreement to install
and secure with appropriate security as provided by law, a bridge rail to Caltrans
standards on the easterly side of Carlsbad Boulevard over the cooling water
discharge culvert to the satisfaction of the City Engineer and the Planning Director.
If determined appropriate by the Planning Director and the City Engineer, the
20 bridge rail shall be incorporated into the design of the decorative screen wall or
fencing along the Encina Power Station's Carlsbad Boulevard frontage as required
21 by and conditioned in Planning Commission Resolution No. 6088 for Precise
Development Plan PDP 00-02.22
29. Developer shall comply with the City's Storm water Regulations, latest version, and shall
implement best management practices at all times. Best management practices include
24 but are not limited to pollution treatment practices or devices, erosion control to prevent
silt runoff during construction, general housekeeping practices, pollution prevention and
25 educational practices, maintenance procedures, and other management practices or
devices to prevent or reduce the discharge of pollutants to storm water, receiving water or
storm water conveyance system to the maximum extent practicable. Developer shall
27 notify prospective owners and tenants of the above requirements.
28 30. Prior to the issuance of precise grading permit Developer shall submit for City approval a
"Storm Water Management Plan (SWMP)." The SWMP shall demonstrate compliance
with the City of Carlsbad Standard Urban Storm water Mitigation Plan (SUSMP), Order
PC RESO NO. 6635 -14-
1 R9-2007-0001 issued by the San Diego Region of the California Regional Water Quality
2 Control Board and City of Carlsbad Municipal Code all to the satisfaction of the City
Engineer.
3
31. Developer shall process, execute and submit an executed copy to the City Engineer, to
4 record against the leasehold, a Permanent Storm water Quality Best Management Practice
Maintenance Agreement for the perpetual maintenance of all treatment control,
applicable site design and source control, post-construction permanent Best Management
6 Practices prior to the issuance of a precise grading permit or building permit.
7 32. Developer shall incorporate Low Impact Development (LID) design techniques, on all
final design plans submitted to the City, to reduce the amount of run-off by mimicking
the natural hydrologic function of the site by preserving natural open-spaces and natural
o drainage channels, minimizing impervious surfaces, promoting infiltration and
evaporation of run-off before run-off leaves the site. Developer shall incorporate LID
10 techniques using current County of San Diego Low Impact Development Handbook
(Storm water Management Strategies). LID techniques include, but are not limited to:
11 vegetated swale/strip, rain gardens, and porous pavement, which can greatly reduce the
volume, peak flow rate, velocity and pollutants.
13 33. Prior to the issuance of a rough or precise grading permit, whichever occurs first,
Developer shall submit for City approval a Tier 3 Storm Water Pollution Prevention Plan
14 (TIER 3 SWPPP). The TIER 3 SWPPP shall be in compliance with current requirements
and provisions established by the San Diego Region of the California Regional Water
15 Quality Control Board and City of Carlsbad Requirements. The TIER 3 SWPPP shall
. , address measures to reduce to the maximum extent practicable storm water pollutant
runoff during construction of the project.
17
34. Developer shall design, and obtain approval from the City Engineer, the structural section
18 for the access aisles with a traffic index of 5.0 in accordance with City Standards due to
truck access through the parking area and/or aisles with an ADT greater than 500. Prior
to completion of grading, the final structural pavement design of the aisle ways shall be
20 submitted together with required R-value soil test information subject to the review and
approval of the City Engineer,
21
35. Prior to issuance of building permits, Developer shall pay all fees, deposits, and charges
22 for connection to public facilities. Developer. shall pay traffic impact and sewer
impact fees based on Section 18.42 and Section 13.10 of the City of Carlsbad
Municipal Code, respectively. The Average Daily Trips (ADT) and floor area
24 contained in the staff report and shown on the site plan are for planning purposes
only.
25
36. Prior to the issuance of precise grading permits or building permits, Developer shall
2° submit a sewer study, prepared by a Registered Engineer, that identifies the peak
27 flows of the project, required pipe sizes, depth of flow and velocity in pipe, and the
capacity of the existing 6" sewer line serving this project. The study shall identify
28 whether any sewer improvements are required to the existing 6" sewer line serving
this project. Said study shall be submitted concurrently with the precise grading
PC RESO NO. 6635 -15-
plans for the project and the study shall be prepared to the satisfaction of the City
2 Engineer.
3 37. Prior to the issuance of precise grading permit, Developer shall, based on findings
from the approved sewer study, construct the necessary improvements to the
existing 6" sewer line all to the satisfaction of the City Engineer.
5 Water:
6
38. Prior to approval of improvement plans, Developer shall meet with the Fire Marshal to
7 determine the specific fire protection measures (fire flows, fire hydrant locations,
building sprinklers) required to serve the Project.8
n 39. The Developer shall design and install sewer laterals and clean-outs to the satisfaction of
and at locations approved by the City Engineer. The locations of sewer laterals shall be
1 0 reflected on improvement plans.
Fire:
40. The Developer shall design and install a new water main to provide potable water and
1 ,, fire service. The locations of the water main shall be reflected on improvement plans.
14 41 . Fire hydrants shall be provided every 300 feet along fire access roads.
15 42. Hazardous Materials Fill Procedures shall be required at building plan check submittal.
16 43. Fire Department turning radius of 21 feet (inside) and 42 feet (outside) shall be provided
and shown on plans.17
44. All desalination plant habitable structures shall be fire-sprinklered per the California Fire
18 Code.
19 45. The Developer shall provide a Knox key entry system on all desalination plant buildings
20 as approved by the Fire Marshal.
21 Code Reminders:
22 46. Developer shall pay a landscape plan check and inspection fee as required by Section
20.08.050 of the Carlsbad Municipal Code.
24 47. Approval of this request shall not excuse compliance with all applicable sections of the
Zoning Ordinance and all other applicable City ordinances in effect at time of building
25 permit issuance, except as otherwise specifically provided herein and except as
otherwise provided in the Amended and Restated Development Agreement DA 05-
26
2' 48. The Project shall comply with the latest nonresidential disabled access requirements
pursuant to Title 24 of the State Building Code.
49. Premise identification (addresses) shall be provided consistent with Carlsbad Municipal
Code Section 18.04.320.
PC RESO NO. 6635 -16- ! : h
50. Any signs proposed for this development shall at a minimum be designed in conformance
2 with the City's Sign Ordinance and shall require review and approval of the Planning
Director prior to installation of such signs.
3
4 NOTICE
5 Please take NOTICE that approval of your project includes the "imposition" of fees,
dedications, reservations, or other exactions hereafter collectively referred to for convenience as
6 "fees/exactions."
7
11
You have 90 days from date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
12 You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
13 zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
, c expired.
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PCRESONO. 6635 -17-u
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PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on the August 19, 2009, by the following
vote, to wit:
AYES:Commissioners Baker, Dominguez, L'Heureux, Nygaard,
Schumacher, and Vice Chairperson Douglas
NOES:
ABSENT: Chairperson Montgomery
ABSTAIN:
FARRAH DOUGLAS, Vice Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DONNEU
Planning Director
PCRESONO. 6635 -18-
1 PLANNING COMMISSION RESOLUTION NO. 6636
2 A RESOLUTION OF THE PLANNING COMMISSION OF THE
3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF A HABITAT MANAGEMENT PLAN PERMIT
4 AMENDMENT TO ALLOW INCIDENTAL AND TEMPORARY
, IMPACTS TO SENSITIVE HABITATS AND THE TAKE OF
SPECIES OF CONCERN FOR THE CONSTRUCTION OF THE
6 CARLSBAD SEAWATER DESALINATION PLANT AND
APPURTENANT FACILITIES, INCLUDING DESALINATED
7 WATER CONVEYANCE PIPELINES AND FLOW CONTROL
FACILITIES, AT THE ENCINA POWER STATION AND ON
8 VARIOUS PROPERTIES AND ROADWAYS WITHIN THE
9 CITY OF CARLSBAD IN LOCAL FACILITIES
MANAGEMENT ZONES 1,3, 5, 6, 8,13,16, 17, AND 18.
10 CASE NAME: DESALINATION PROJECT CHANGES
CASE NO: HMP05-08CA)
11
12 WHEREAS, Poseidon Resources (Channelside) LLC, "Developer," has filed a
13 verified application with the City of Carlsbad regarding property owned by various owners,
14 "Owners," described as
Properties and existing street rights of way in the Northwest,
16 Northeast, and Southeast quadrants of the City of Carlsbad,
which include Avenida Encinas, Cannon Road, Faraday
17 Avenue, South Melrose Drive, Palomar Airport Road,
Lionshead Avenue and Alga Road and various properties,
including those identified by Assessor's Parcel Numbers 210-
19 010-10, 210-010-41, 210-010-42, 210-010-43, 210-011-05, 221-
014-06, 221-014-07, 213-300-16, 213-300-17, 221-813-01, 221-
20 830-03, 222-560-48, 222-560-49, 222-151-74, and 222-470-15
21 ("the Property"); and
22 '...-,-. •WHEREAS, the City of Carlsbad has received authorization to issue permits to
23
impact various sensitive species and habitats, including species listed as Threatened or
24
Endangered, by virtue of Incidental Take Permit No. TE022606-0 from the U.S. Fish and
±-O
26 Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-001-05;
27 and
28 WHEREAS, the authority stated above is based on a plan titled Habitat
Management Plan for Natural Communities in the City of Carlsbad, Final Approval November
2004, referred to as the HMP, and approval of all projects is contingent on a finding of
2 consistency with the HMP; and
3
WHEREAS, said verified application by Developer constitutes a request for a
4
<- Habitat Management Plan Permit Amendment pursuant to the City's authority as contained in
6 Chapter 21.210 of the Zoning Ordinance, on file in the Planning Department; and
7 WHEREAS, the Planning Commission did on August 19, 2009, consider said
g
request; and
9
WHEREAS, at said hearing, upon hearing and considering all testimony and
10
arguments, if any, of all persons desiring to be heard, said Commission considered all factors
12 relating to the Habitat Management Plan Permit Amendment.
13 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
14 Commission as follows:
A) That the foregoing recitations are true and correct.
16
B) That the DESALINATION PROJECT CHANGES project is consistent with
17 the HMP as described in the following findings.
1 O C) That based on the evidence presented at the hearing, the Commission
19 RECOMMENDS APPROVAL of the Amendment to the Habitat Management
Plan Permit, HMP 05-08(A), for the DESALINATION PROJECT CHANGES
20 project based on the following findings and subject to the following conditions:
21 Findings:
22 '••'.-•'•1. That the Carlsbad Seawater Desalination Plant and appurtenant facilities, including
23 desalinated water conveyance pipelines and flow control facilities, at the Encina Power
Station and on various properties and roadways, are shown in Figure 28 of the approved
24 HMP as "Development Area."
95 2. That authorization to temporarily impact sensitive habitats and take of species of
25 concern, through the temporary removal of Coastal Sage Scrub (disturbed and
undisturbed) and take of coastal California gnatcatcher is subject to continuous
27 compliance with all provisions of the Habitat Management Plan for Natural Communities
in the City of Carlsbad (HMP), the Citywide Incidental Take Permit issued for the HMP,
the Implementing Agreement, the Terms and Conditions of the Incidental Take Permit,
and the Biological Opinion.
PC RESO NO. 6636 -2-
3. That authorization to temporarily impact sensitive habitats and take of species of
2 concern is subject to continuous compliance with all mitigation measures as stated in the
Mitigation Monitoring and Reporting Program adopted by City Council Resolution
3 2006-156 and is subject to all conditions contained in Planning Commission Resolutions
No. 6631, 6632, 6633, 6634, 6635, and 6092 for those other approvals, including but not
limited to recordation of conservation easements over all conserved areas and
c management and monitoring in perpetuity by a qualified conservation entity.
6 4. That authorization to temporarily impact sensitive habitats and take of species of
concern is subject to continuous compliance with the provisions of Volumes I, II and III
of the Multiple Habitat Conservation Program and the Final Environmental Impact
Statement/Environmental Impact Report for Threatened and Endangered Species Due to
Urban Growth within the Multiple Habitat Conservation Program Planning Area (SCH
9 No. 93121073).
10 5. That all temporary impacts to habitat and all take of species will be incidental to
otherwise lawful activities related to construction and operation of the Desalination
Project Changes project in that project impacts are temporary and are related to
12 construction of the Desalination Project Changes project; and the authorization to
take species of concern is subject to continuous compliance with all provisions of the
13 Habitat Management Plan for Natural Communities in the City of Carlsbad (HMP),
the Citywide Incidental Take Permit issued for the HMP, the Implementing
Agreement, the Terms and Conditions of the Incidental Take Permit, the Biological
*r Opinion, and the Mitigation and Monitoring Program for Final EIR 03-05 as
adopted by City Council Resolution 2006-156.
16
6. That the project design as approved by the City of Carlsbad has avoided and minimized
impacts to wildlife habitat and species of concern to the maximum extent practicable.
Specifically; (a) all impacts to sensitive habitat and covered species are temporary
and habitat disturbed will be revegetated to the preconstruction condition and
19 mitigated at required ratios; (b) the project affects disturbed and isolated patches of
sensitive habitat (disturbed and undisturbed coastal sage scrub) in developed areas
20 at the Encina Power Station; (c) the potential for direct impacts on coastal
California gnatcatchers shall be mitigated by restricting the clearing of coastal sage
scrub outside of the gnatcatcher breeding season; (d) temporary impacts on non-
22 native habitats (i.e., disturbed habitat), are subject to payment of a fee pursuant to
the Habitat Management Plan Mitigation Fee; (e) the pipeline alignments proposed
23 for construction off-site of the Encina Power Station, including the new alignments
and the flow control facilities studied in the EIR 03-05(A), the Addendum to Final
24 EIR 03-05, do not have impact wildlife habitats and species of concern as they
would be constructed within existing road rights of way and in already developed or
disturbed areas; (f) the Desalination Project Changes project does not propose any
26 impacts to wildlife habitat and species of concern not already analyzed in Final EIR
03-05, and, in fact, will result in fewer such impacts than those terrestrial biological
27 impacts identified in the Mitigation and Monitoring Program for Final EIR 03-05
as adopted by City Council Resolution 2006-156; and (g) the project is subject to
mitigation measures requiring best management practices to limit indirect
temporary impacts due to construction (e.g., dust, noise, water quality).
PC RESO NO. 6636 -3-
7. That adequate funding has been provided to address changed circumstances and adaptive
2 management needs that may be reasonably anticipated in the future, consistent with the
HMP Implementing Agreement.
3
8. That the authorization to temporarily impact sensitive habitats and incidental take of
species of concern as a result of the project will not appreciably reduce the likelihood of
- survival and recovery of the species in the wild due to compliance with all of the above
stated requirements, as well as ongoing monitoring and reporting to the wildlife agencies
6 and the public.
7 9. That the Planning Director is authorized to sign the Take Permit.
O
10. The Planning Commission hereby finds that all development in Carlsbad benefits from
9 the Habitat Management Plan for Natural Communities in the City of Carlsbad, Final
Approval November 2004 (HMP), and USFWS Incidental Take Permit No.
10 TE022606-0, which is a comprehensive conservation plan and implementation program
that will facilitate the preservation of biological diversity and provide for effective
protection and conservation of wildlife and plant species while continuing to allow
compatible development in accordance with Carlsbad's Growth Management Plan. The
Carlsbad City Council's approval of and issuance of the HMP Permit for the project
13 satisfies the project's permitting requirements under the Endangered Species Act
and no further approvals from the USFWS are required. .Preservation of wildlife
habitats and sensitive species is required by the Open Space and Conservation Element of
1 _ the City's General Plan which provides for the realization of the social, economic,
aesthetic and environmental benefits from the preservation of open space within an
16 increasingly urban environment. Moreover, each new development will contribute to the
need for additional regional infrastructure that, in turn, will adversely impact species and
17 habitats. The In-Lieu Mitigation Fee imposed on all new development within the City is
essential to fund implementation of the City's Habitat Management Plan.18
19 Conditions:
20 1. If any of the following conditions fail to occur; or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
21 implemented and maintained according to their terms, the City shall have the right to
revoke or modify all approvals herein granted; deny or further condition issuance of all
future building permits; deny, revoke or further condition all certificates of occupancy
23 issued under the authority of approvals herein granted; record a notice of violation on the
property title; institute and prosecute litigation to compel their compliance with said
24 conditions or seek damages for their violation. No vested rights are gained by Developer
or a successor in interest by the City's approval of this Habitat Management Plan
Permit Amendment other than those described in the amended Development Agreement
26 (DA05-01(A)).
27 2. Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Habitat Management Plan Permit Amendment documents, as
necessary to make them internally consistent and in conformity with the final action on
the project. Development shall occur substantially as shown on the approved Exhibits.
PC RESO NO. 6636 -4- | I , \
Any proposed development different from this approval, shall require an amendment to
2 this approval.
3 3. If any condition for construction of any public improvements or facilities, or the payment
of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are
4 challenged, this approval shall be suspended as provided in Government Code Section
c 66020. If any such condition is determined to be invalid this approval shall be invalid
unless the City Council determines that the project without the condition complies with
6 all requirements of law.
7 4. Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold
harmless the City of Carlsbad, its Council members, officers, employees, agents, and
representatives, from and against any and all liabilities, losses, damages, demands, claims
9 and costs, including court costs and attorney's fees incurred by the City arising, directly
or indirectly, from (a) City's approval and issuance of this Habitat Management Plan
10 Permit Amendment, (b) City's approval or issuance of any permit or action, whether
discretionary or non-discretionary, in connection with the use contemplated herein, and
" (c) Developer/Operator's installation and operation of the facility permitted hereby,
12 including without limitation, any and all liabilities arising from the emission by the
facility of electromagnetic fields or other energy waves or emissions. This obligation
13 survives until all legal proceedings have been concluded and continues even if the City's
approval is not validated.
14
5. This approval is granted subject to the approval of EIR 03-05(A), PDP 00-02(B), SP
144(1), DA 05-01(A), and RP 05-08(A) and approved permit CDP 04-41 and is subject
16 to all conditions contained in Planning Commission Resolutions No. 6631, 6632, 6633,
6634,6635, and 6092, for those other approvals incorporated herein by reference.
17
6. This approval is granted subject to the Mitigation and Monitoring and Reporting
Program adopted by City Council Resolution 2006-156 for the Precise Development
19 Plan and Desalination Plant project.
20 7. As a condition of this approval, applicant must comply with the requirements of all
regulatory agencies having jurisdiction over the project and any mitigation requirements
21 of the environmental documents for the project. Pursuant to Government Code section
22 65871 and Carlsbad Municipal Code Title 20, Chapter 20.04, section 20.04.140 applicant
shall grant a conservation easement for the conservation, protection, and management of
23 fish, wildlife, native plants and the habitat necessary for biologically .sustainable
populations of certain species thereof, in accordance with the City's adopted Habitat
24 Management Plan.
25 8. Prior to issuance of a precise grading permit, clearing of any habitat, or building permit,
26 whichever occurs first, the Developer shall take the following actions to the satisfaction
of the Planning Director in relation to the open space lot(s) which are being conserved for
27 natural habitat in conformance with the City's Habitat Management Plan:
2g a. Select a conservation entity, subject to approval by the City, that possesses
qualifications to manage the open space lot(s) for conservation purposes.
PC RESO NO. 6636 -5-
b. Prepare a Property Analysis Record (PAR) or other method acceptable to the City
2 for estimating the costs of management and monitoring of the open space lot(s) in
perpetuity in accordance with the requirements of the North County Multiple
3 Habitats Conservation Plan and the City's Open Space Management Plan.
4 c. Based on the results of the PAR, provide a non-wasting endowment or other
financial mechanism acceptable to the Planning Director and conservation entity,
5 if any, in an amount sufficient for management and monitoring of the open space
lot(s) in perpetuity.
6 d. Record a Conservation Easement over the open space lot(s).
7
e. Prepare a Preserve Management Plan which will ensure adequate management of
the open space lot(s) in perpetuity.
9. This project has been found to result in impacts to wildlife habitat or other lands, such as
agricultural land, non-native grassland, and disturbed lands, which provide some benefits
to wildlife, as documented in the City's Habitat Management Plan and the environmental
analysis for this project. Developer is aware that the City has adopted an In-lieu
11 Mitigation Fee consistent with Section E.6 of the Habitat Management Plan and City
Council Resolution No. 2000-223 to fund mitigation for impacts to certain categories of
vegetation and animal species. The Developer is further aware that the City has
1 - determined that all projects will be required to pay the fee in order to be found consistent
with the Habitat Management Plan and the Open Space and Conservation Element of the
14 General Plan. Developer or Developer's successor(s) in interest shall pay the fee prior to
recordation of a final map, or issuance of a grading permit or building permit, whichever
15 occurs first. If the In-lieu Mitigation Fee for this project is not paid, this project will not
be consistent with the Habitat Management Plan and the General Plan and any and all
approvals for this project shall become null and void.
17
10. The approval for this project shall become null and void if the project does not become
18 operational within 10 years of the final discretionary approval, including the
discretionary approvals of the California Coastal Commission or other agencies, as
may be consistent with the amended Development Agreement (DA 05-01(A)).
20 NOTICE
21
__ Please take NOTICE that approval of your project includes the "imposition" of fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as
23 "fees/exactions."
24 You have 90 days from date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
27 annul their imposition.
28
PC RESO NO. 6636 -6- \\fi
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You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, held on August 19,2009, by the following vote, to wit:
AYES:Commissioners Baker, Dominguez, L'Heureux, Nygaard,
Schumacher, and Vice Chairperson Douglas
NOES:
ABSENT: Chairperson Montgomery
ABSTAIN:
FARRAH DOUGLAS, Vice Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
Planning Director
PCRESONO. 6636 -7-
EXHIBIT 8
ERRATA SHEET FOR ITEM #1
August 19,2009
TO: PLANNING COMMISSIONERS
FROM: Scott Donnell, Senior Planner
SUBJECT: EIR 03-05(AV PDF 00-02(BV SP 144(JV DA 05-OKAV RP 05-12(AV
HMP 05-08(A) - DESALINATION PROJECT CHANGES
Staff is recommending that the Planning Commission include the following
revisions. Please note underlined words are recommended additions and
stricken letters or words are recommended deletions.
1. Revise Planning Commission Resolution 6632 as follows:
a. Revise finding 6b.:
It documents and maps power plant uses and
features, and, since it proposes no changes to the
operation of the Encina Power Station and only
limited changes to its facilities (e.g., removal of a fuel
oil storage tank, seawater discharge channel
connections, rerouting and removal, as appropriate,
of existing support infrastructure, such as piping,
and potential demolition of the administration
building), the Precise Development Plan POP 00-
02(B) does not conflict with Specific Plan standards
and requirements regarding power station
operations.
b. Revise condition 23(c)iL:
Acknowledges that under existing NPDES requirements
applicable to the Owner's property that Owner has
legal obligations to prevent illegal or unpermitted
discharges into the Agua Hedionda Lagoon or Pacific
Ocean under expected drainage water flows, and no
releases of hazardous materials or pollutants as the
result of flows awes* from the Precise Development
Plan property.
EIR 03-05(A)/PDP 00-02(B)/SP 144(J)/DA 05-01(A)/RP 05-12(A)/HMP 05-08(A)
DESALINATION PROJECT CHANGES
August 19, 2009
Page 2
2. Revise draft City Council ordinance amending the Encina Power
Station Precise Development Plan.
This draft ordinance is Exhibit 1 to Planning Commission
Resolution 6632. Revise the Ordinance to read as follows:
SECTION I: That Precise Development Plan POP 00-02(BA), dated
August 19, 2009, on file in the Planning Department and incorporated by
reference herein, is adopted. The Encina Power Station Precise
Development Plan (POP 00-02(B)) shall constitute the development plan
for the property and all development within the plan area shall conform
to the plan.
3. Add referenced exhibit to draft City Council ordinance amending
the Encina Specific Plan 144.
This draft ordinance is identified as Exhibit 2 in Planning
Commission Resolution 6633. The second WHEREAS recital says
"...as shown on Exhibit 'Encina Specific Plan Amendment - SP
144(J)' attached hereto..." This exhibit was not attached.
Therefore, these errata serve to attach the exhibit to the ordinance.
The exhibit is included with these errata.
4. Revise Planning Commission Resolution 6635 as follows:
a. Revise condition 20a.:
Prior to the issuance of pjPrecise gGrading or building
EPermitSi developer shall submit and obtain Planning
Director approval of Final Landscape and Irrigation Plans
showing conformance with the conditions herein and the
City's Landscape Manual. Developer shall construct and
install all landscaping as shown on the approved Final
Plans and according to the conditions of approval, and
maintain all landscaping in a healthy and thriving
condition, free from weeds, trash, and debris.
b. Revise condition 21:
21. Prior to final inspection, Developer shall construct trash
receptacle and recycling areas enclosed by a six-foot high
masonry wall with gates pursuant to City Engineering
Standards and Carlsbad Municipal Code Chapter 21.105.
Prior to the issuance of precise grading or building permits,
tT-he Planning Director shall approve location of said
EIR 03-05(A)/PDP 00-02(B)/SP 144(J)/DA 05-01 (A)/RP 05-12(A)/HMP 05-08(A)
DESALINATION PROJECT CHANGES
August 19, 2009
Page3
receptacles. Enclosure shall be of similar colors and/or
materials to the project to the satisfaction of the Planning
Director.
c. Add new condition 21 a.:
2la. Rooftop parapet walls shown on existing Exhibit E-l
over the administration portion of the administration/RO
building may be extended to the RO portion of the building
with the intent to accommodate the installation of solar-
energy panels on the rooftop. Prior to the issuance of
precise grading or building permits, the Planning Director
shall review and approve parapet wall height, material and
location details to ensure architectural design integrity is
maintained while concurrently accommodating optimum
solar panel configuration.
d. Delete condition 29.
e. Replace condition 32 with:
32. Developer shall process, execute and submit an
executed copy to the City Engineer, to record against the
leasehold, a Permanent Stormwater Quality Best
Management Practice Maintenance Agreement for the
perpetual maintenance of all treatment control, applicable
site design and source control, post-construction permanent
Best Management Practices prior to the issuance of a
precise grading permit or building permit.
f. Revise condition 38 to be entirely bold.
Scott Donnell
A
Encina Specific Plan Amendment - SP144(J)
August 19, 2009
o
Feet
0 500 1,000
J:\Requests\Planning\4103790_09
Precise Development Plan
(with Amendments per POP 00-02(6)
to be incorporated into Specific Plan 144)
Specific Plan 144 BoundaryM
AGUA HED1ONDA LAGOON