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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 COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D Dn CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES D D D D Page 2 Presently, Poseidon Resources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. 12 Eiwr! ttrknown doeum«ttt property 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 13 ! linkiiowii"docum«ntproperty iHtme, 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 Krror! linknowii document- property fwrnft 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 ! IJHfcuowit decumeftt property- 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 22 'nkiiown tle«um«»t-property 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. 23 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. 24 I'nteiowii document property -ni»»e; 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 25 intaiowinlocument property 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. 26 ! I'll know it document-propertyninne; 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. 27 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 ! linkiiowiiilocuHient-property 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 - avoa NONNVO f\ o00 ;s>*'-.i-V$ : ..£. - ' Io CJCi g uoo a: 3 ijii :{fflMBS IH [I 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 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 .-.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- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 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 25 26 27 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 28 PCRESONO. 6631 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 16 17 18 19 20 21 22 23 24 25 26 27 28 PCRESONO. 6635 -17-u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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