Loading...
HomeMy WebLinkAbout2006-06-13; City Council; 18602; Desalination Plan Project Precise Development PlanCITY OF CARLSBAD AND HOUSING AND REDEVELOPMENT COMMISSION AGENDA BILL 10 AB# MTG. DEPT. 18,602 6/13/06 PLN PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT EIR 03-05/PDP 00-02/SP 144(H)/ DA 05-01/RP 05-12 DEPT. HEAD CITY ATTY. CITY MGR. NS-805 APPROVING Specific Plan Amendment 144(H); RECOMMENDED ACTION: 1) That the Council: a) INTRODUCE Ordinance No. and b) ADOPT City Council Resolution No. 2006-156 CERTIFYING EIR 03-05, as modified, and ADOPTING the Candidate Findings of Fact, as modified, Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting Program. 2) That the Housing and Redevelopment Commission ADOPT Housing and Redevelopment Commission Resolution No. 419 , CERTIFYING EIR 03-05, as modified, and ADOPTING the Candidate Findings of Fact, as modified, Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting Program. 3) That the Council INTRODUCE Ordinances No. NS-806 and NS-807 APPROVING Precise Development Plan POP 00-02, and Development Agreement DA 05-01. 4) That the Housing and Commission Resolution No. Redevelopment Commission ADOPT Housing and Redevelopment 420 , APPROVING Redevelopment Permit RP 05-12. ITEM EXPLANATION: On May 3, 2006, the Planning Commission held a public hearing for the Precise Development Plan and Desalination Plant project. The Planning Commission voted 6-0 (Dominguez recused because of a conflict of interest) to recommend and approve the project as follows: Project Applications EIR 03-05 Findings of Fact Statement of Overriding Considerations Mitigation Monitoring and Reporting Program Precise Development Plan POP 00-02 Specific Plan Amendment 144(1-1) Development Agreement DA 05-01 Redevelopment Permit PP 05-12 Coastal Development Permit CDP 04-41 Special Use Permit (Floodplain) SUP 05-04 Habitat Management Plan Permit HMPP 05-08 Planning Commission Action Recommend Certification Recommend Adoption Recommend Approval Approve* To be reviewed - final at Council X X X X X To be reviewed - final at Housing and Redevelopment Commission X X X 'Subject to the City Council and Housing and Redevelopment Commission approving the remaining actions PAGE 2 The proposed Precise Development Plan (POP) would document land uses and provide basic development standards for the Encina Power Station, which is located along the Agua Hedionda Lagoon west of Interstate 5; the POP also serves as the primary permit for the proposed 50 million gallon per day Carlsbad Seawater Desalination Plant, which is proposed at the Encina Power Station. The proposed amendment to the Encina Specific Plan, which encompasses the Power Station and lagoon, is needed to incorporate the POP into the Specific Plan. Since the proposed desalination plant and a portion of the pipelines are within the South Carlsbad Coastal Redevelopment Area, a Redevelopment Permit is required. A Development Agreement has been drafted between the City and the desalination plant developer, Poseidon Resources (Channelside) LLC (Poseidon). A Special Use Permit (floodplain), Coastal Development Permit, and Habitat Management Plan Permit are necessary for proposed pipelines primarily in existing street rights of way that would convey desalinated water from the desalination plant into various parts of the City of Carlsbad. Pipelines are also proposed in the cities of Oceanside and Vista and are subject to the review and permitting requirements of those cities. The recommended City Council and Housing and Redevelopment actions listed above will not approve any project development in the adjacent cities. In addition to the May 3 formal public hearing, the Planning Commission considered the project as an information item at a December 21, 2005, public hearing. At the hearing, 5 speakers commented and 3 letters were submitted. In response, the Planning Commission requested city staff meet with Coastal Commission staff and Surfrider Foundation to better understand their concerns. The city staff responses to the subsequent meetings and additional information from Coastal Commission and Surfrider are attached (see exhibit 8). During the public testimony portion of the May 3 Planning Commission hearing, 18 people spoke. The majority of speakers expressed project support. Speakers at the May hearing expressing concerns about the project included representatives of the Desal Response Group (Connor Everts), Sierra Club (Ed Kimura), and Surfrider Foundation (Joe Geever). The concerns expressed include the following: 1. Operation of the desalination plant independent of the Encina Power Station; 2. Water conservation as an "alternative" to the proposed project; 3. The energy demand of the desalination plant in light of possible future power shortages; 4. The creation of additional urban runoff from introduction of a new water supply; and 5. The impacts to Ocean Hills Country Club residents in Oceanside from project construction or other development occurring at and near Maerkle Reservoir. These issues are adequately covered by the project's Final EIR. Further, to respond to public comments received on the project since the December 2005 release of the Final EIR and the City responses to commenting parties, staff has provided additional, clarifying information to address the two concerns above on operation of the desalination plant without the power plant and water conservation. More information on this effort is provided below in the Environmental Impact Section. Additionally, 14 letters were received by the Planning Commission in response to the May hearing, all but one of which supported the project. The one letter not clearly in support of the project, from Diane Nygaard on behalf of Preserve Calavera, noted reservations with pipeline routes and project consistency with the Habitat Management Plan (HMP). Staff disagrees with the points raised in the letter because the proposed pipeline routes have sufficient specificity to allow for adequate environmental analysis and determination of HMP consistency (as demonstrated in the EIR and staff report). Further, pipeline routes in other jurisdictions are subject to the review requirements of those agencies. A May 2, 2006, letter submitted by Cabrillo Power LLC, owner of the Encina Power Station, to the Planning Commission requested continuance of the project. Cabrillo Power withdrew the letter after resolving its concerns with staff, which primarily resulted in changes to conditions to further clarify PAGE 3 provisions applicable to Cabrillo Power versus those applicable to Poseidon. These changes were documented in an errata sheet which was included in the Planning Commission's project motion. The changes have been incorporated into the applicable Planning Commission resolutions. In light of potential traffic and access disruptions due to pipeline construction, Planning Commissioner Baker inquired about establishing a phone hotline and newspaper noticing to enable people to comment on and keep aware of construction progress and locations. Similar improvement projects use such information measures. Mitigation Measure "Traffic-2" in the Mitigation Monitoring and Reporting Program already requires newspaper noticing during construction and individual, advance notices to owners and occupants along streets impacted by construction. Moreover, Poseidon has agreed in an attached May 31, 2006, letter to provide a phone number and signs and other communication means to keep people informed. A full record of the comments and questions expressed at the meetings and staffs responses, along with all correspondence received to date, can be found in the relevant Planning Commission minutes; both meetings also were televised and recorded on DVDs. The minutes, DVDs, and other information are provided as Agenda Bill attachments. DESALINATION NEGOTIATING PRINCIPLES: In June of 2002 the Carlsbad City Council, and in October of 2002 the Carlsbad Housing and Redevelopment Commission, adopted the following six principals to pursue negotiations for the purchase of water from Poseidon: 1. Improved water reliability and quality in both normal and drought periods at CWA [County Water Authority] water rates. 2. Maximize beach and lagoon access for the public. 3. Maximize open space and recreational opportunities for the public. 4. Redevelop Encina Power Plant to maximize its best public and private uses. 5. Desalination facility protected from power market fluctuations. 6. Accrue a positive economic benefit from the increased industrial development of the coastal corridor. These principals were used to evaluate the project. Discussion in the Final EIR, staff report, and project resolutions demonstrates project compliance with these principals. With regard to principal number 4, while no redevelopment of the power plant is proposed, the project was found to be consistent with this principal, and would therefore not interfere with any future change in operation at the EPS. Principal numbers 1 and 5 are addressed through the long-term Water Purchase Agreement between the Carlsbad Municipal Water District (CMWD) and Poseidon. Pursuant to the Water Purchase Agreement, Poseidon has agreed to sell CMWD desalinated water that satisfies mutually acceptable water quality standards and that meets all of the City's water quantity requirements at a price no greater than what CMWD otherwise would pay the CWA. Accordingly, since the project will provide a drought-proof water supply that is not dependent on imported water and Poseidon has agreed to supply all water CMWD requires to supply the City at the same price CMWD would pay CWA, the project will improve the City's water reliability in normal and drought periods and will insulate CMWD and City ratepayers from price variability due to power market fluctuations. The goal of accruing economic benefits identified in the principal number 6 is discussed briefly below in the Fiscal Impact section. 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 $2.4 million per year in increased property tax revenue. Because the project site is located within the South Carlsbad Coastal Redevelopment Area, PAGE 4 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. 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: An EIR has been prepared for the project as required by CEQA, the CEQA Guidelines, and the Environmental Protection Procedures (Title 19) of the Municipal Code. The EIR addresses the environmental impacts associated with all applications for the project and analyzes all project components, including the water conveyance facilities located outside Carlsbad in the cities of Oceanside and Vista. The EIR concludes the project will result in: • Unavoidable significant cumulative air quality and indirect growth inducing impacts, and; • Significant aesthetic, biological, air quality, hydrology/water quality, geology/soils, hazards/hazardous materials, archeological and paleontological impacts that can be mitigated to a less than significant impact level. Under CEQA, before a project which is determined to have significant, unmitigated environmental effects can be approved, the public agency must consider and adopt a "Statement of Overriding Considerations" pursuant to CEQA Guidelines 15043 and 15093. While the primary purpose of CEQA is to fully inform the decision makers and the public of the environmental effects of a proposed project and to include feasible mitigation measures and alternatives to reduce any such adverse effects below a level of significance, CEQA recognizes and authorizes the approval of projects where not all adverse impacts can be fully lessened or avoided. The Lead Agency must explain and justify its conclusion to approve such a project through the Statement of Overriding Considerations setting forth the project's general social, economic, policy or other public benefits which support the Lead Agency's informed conclusion to approve the project. The CEQA Findings of Fact and Statement of Overriding Considerations and the Mitigation Monitoring and Reporting Program are attached to the Planning Commission Resolution No. 6087 for the EIR. Following publication of the Final EIR and distribution of responses to commenting parties, both in December 2005, certain parties continued to submit comments up to and including testimony given at the May 3, 2006, public hearing held by the Planning Commission on the project. The comments focus on the following two primary issues: • Operation of the desalination plant independent of the Encina Power Station (EPS); and, • Water conservation as an "alternative" to the proposed project. To address all issues raised by the public on the proposed project and provide comprehensive disclosure, documentation, and additional clarification of environmental issues associated with the project, staff has prepared additional responses to comments, changes to the Final EIR text, and additional findings to the Candidate Findings of Fact for consideration by City Council and Housing and Redevelopment Commission. The information contained in these collective revisions, which are provided in exhibits to the City Council and Housing and Redevelopment Commission resolutions, do not rise to the level of "significant information" as described in California Environmental Quality Act (CEQA) Guideline 15088.5(a). Instead, the information provided merely clarifies and amplifies discussion already contained in the Final EIR, and provides background information on past policy decisions and direction taken by the City, primarily with regards to water conservation. As such, PAGES recirculation of the Final EIR is not required because the new information added to the EIR only clarifies, amplifies and makes insignificant modifications to an adequate EIR (CEQA Guideline 15088.5(b)). The additional responses to comments, changes to the Final EIR text, and an additional Findings of Fact are contained in exhibits to the City Council and Housing and Redevelopment Commission resolutions regarding the project's EIR. EXHIBITS: 1. City Council Ordinance No. NS-80S 2. City Council Resolution No. 2006-156 3. Housing and Redevelopment Commission Resolution No. 419 4a. City Council Ordinance No. NS-806 4b. City Council Ordinance No. NS-807 5. Housing and Redevelopment Commission Resolution No. 420 6. Location Maps a. Precise Development Plan & Desalination Plant Project - Land Use Plan Relationships b. Proposed Water Delivery Pipelines and Desalination Plant Map 7. Planning Commission Resolutions No. 6087, 6088, 6089, 6090, 6091, 6092, 6093, 6094 8. Planning Commission Staff Reports, dated December 21, 2005, and May 3, 2006 9. Letters not included with previous Planning Commission staff reports 10. Excerpts of Planning Commission Minutes, dated December 21, 2005, and (draft) May 3, 2006 11. DVDs of Planning Commission meetings of December 21, 2005 (portion of meeting regarding project only), and May 3, 2006 (previously distributed, copies on file in Planning Department) 12. Final EIR 03-05, Volumes I and II, for the Precise Development Plan and Desalination Plant project (previously distributed, copies on file in the Planning Department) 13. Precise Development Plan POP 00-02 (previously distributed, copies on file in the Planning Department) 14. Specific Plan 144(H) (previously distributed, copies on file in the Planning Department) 15. May 31, 2006, letter from Poseidon Resources DEPARTMENT CONTACT: Scott Donnell (760) 602-4618 sdonn@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED D CONTINUED TO DATE SPECIFIC D DENIED D CONTINUED TO DATE UNKNOWN D CONTINUED D RETURNED TO STAFF D WITHDRAWN D OTHER - SEE MINUTES tf AMENDED D Introduced Ordinance Nos. NS-305. 806, 807(as amended). Adopted Resolution 2006-156 (as amended), Resolution 419(as amended) and Resolution 420. 1 ORDINANCE NO.. NS-805 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, AMENDING THE ENCINA SPECIFIC PLAN SP 144 TO INCORPORATE PRECISE DEVELOPMENT 4 PLAN 00-02 FOR THE ENCINA POWER STATION AND CARLSBAD SEAWATER DESALINATION PLANT LOCATED ON 5 PROPERTY NORTH OF CANNON ROAD, SOUTH OF AGUA HEDIONDA LAGOON, EAST OF CARLSBAD BOULEVARD AND 6 WEST OF INTERSTATE 5 AND IN LOCAL FACILITIES MANAGEMENT ZONES 1 AND 3. 7 CASE NAME: PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT 8 CASE NO.: SP 144(H) ^ WHEREAS, the City Council of the City of Carlsbad, California has reviewed and considered a request to incorporate Precise Development Permit 00-02 for the Encina Power Station and Carlsbad Seawater Desalination Plant into the Encina Specific Plan 144; and 12 WHEREAS, said application constitutes a request for a Specific Plan 13 Amendment as shown on Exhibit "Encina Specific Plan Amendment - SP 144(H)" attached 14 hereto and made a part hereof. 15 WHEREAS, after procedures in accordance with the requirements of law, the 16 City of Carlsbad has determined that the public interest indicates that said Specific Plan Amendment be approved.18 19 WHEREAS, the City Council did on the 13th day of June 2006 20 hold a duly noticed public hearing as prescribed by law to consider said request; and 21 WHEREAS at said public hearing, upon hearing and considering all testimony 22 and arguments, if any, of all persons desiring to be heard, said Council considered all factors 23 relating to the Specific Plan Amendment. 24 NOW, THEREFORE, the City Council of the City of Carlsbad does ordain as 25 follows: 26 SECTION I: That Specific Plan Amendment SP 144(H) dated May 3, 2006, on 27 file in the Planning Department, and incorporated by reference herein, is approved. All 28 development of the property shall substantially conform to the plan unless otherwise noted in these conditions. 6 SECTION II: That the findings and conditions of the Planning Commission in 2 Planning Commission Resolution No. 6089 shall also constitute the findings and conditions of the City Council. 4 EFFECTIVE DATE: This ordinance shall be effective thirty days after its 5 adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be 6 published at least once in a publication of general circulation in the City of Carlsbad within 7 fifteen days after its adoption. Notwithstanding the preceding, this ordinance amendment is8 subject to a coastal development permit issued by the California Coastal Commission and shall . ~ not be effective until it is approved by the California Coastal Commission. 11 "" 12 //// 13 //// 14 //// 15 //// 16 //// //// 18 //// 19 //// 20 //// 21 22 23 24 25 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 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 13th day of June , 2006, and thereafter PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of , 2006, by the following vote, to wit: AYES: NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY: RONALD R. BALL, City Attorney CLAUDE A. LEWIS, Mayor ATTEST: LORRAINE M. WOOD, City Clerk J:\carfll32\products\plannlna\r299.05\SP Amendment.mxd 1 RESOLUTION NO. 2006-156 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, CERTIFYING 3 ENVIRONMENTAL IMPACT REPORT EIR 03-05, 4 ADOPTING THE CANDIDATE FINDINGS OF FACT, STATEMENT OF OVERRIDING CONSIDERATIONS, AND 5 THE MITIGATION MONITORING AND REPORTING PROGRAM FOR THE PRECISE DEVELOPMENT PLAN 6 AND DESALINATION PLANT PROJECT, WHICH AFFECTS PROPERTIES AND STREETS IN THE CITIES OF 7 CARLSBAD, OCEANSIDE, AND VISTA. CASE NAME: PRECISE DEVELOPMENT PLAN AND 8 DESALINATION PLANT 9 CASE NO: EIR 03-05 10 WHEREAS, on May 3, 2006, the Carlsbad Planning Commission held a 11 duly noticed public hearing to consider a proposed Environmental Impact Report (EIR 12 03-05) and adopted Planning Commission Resolution No. 6087, recommending to the 13 City Council certification of EIR 03-05 and adoption of the Candidate Findings of Fact, 14 Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting Program; and adopted Planning Commission Resolutions No. 6088, 6089, and 6090 16 recommending approval of POP 00-02, SP 144(H), and DA 05-01, respectively, subject 17 to the City Council certification of EIR 03-05 and adoption of the Candidate Findings of 18 Fact, Statement of Overriding Considerations, and the Mitigation Monitoring and 20 Reporting Program; and 21 WHEREAS, the City Council of the City of Carlsbad, did on the 13th day of 22 June, 2006, hold a public hearing to consider the recommendations and heard all 23 persons interested in or opposed to EIR 03-05; and 24 WHEREAS, a Draft Environmental Impact Report was prepared 25 and submitted to the State Clearinghouse and a Notice of Completion filed, published, 26 and mailed to responsible agencies and interested parties providing a 45-day review 27 period; and 28 1 WHEREAS, all comments received during the review period are contained 2 in the Final EIR; and 3 WHEREAS, following publication of the Final EIR and distribution of 4 responses to commenting parties, certain parties continued to submit comments up to 5 and including testimony given at the project's public hearing held by the City of Carlsbad 6 Planning Commission on the project on May 3, 2006; and 7 WHEREAS, in order to address all issues raised by the public on the o o proposed project and provide comprehensive disclosure and documentation of 10 environmental issues associated with the project, additional responses to comments 11 were prepared and revisions to the Final EIR were made as shown on attached Exhibit 12 1 and as hereby incorporated into the Final EIR for consideration by the Carlsbad City 13 Council; and 14 WHEREAS, the additional responses to comments and revisions to the Final EIR necessitated new Findings be added to the Candidate Findings of Fact as 16 shown on attached Exhibit 2 and as hereby incorporated into the Candidate Findings of 17 Fact for consideration by the Carlsbad City Council; and 18 WHEREAS, the information contained in the additional responses, 2Q revisions to the Final EIR, and new Candidate Finding of Fact does not rise to the level 21 of "significant information" as described in California Environmental Quality Act (CEQA) 22 Guideline 15088.5(a). Instead, the information provided merely clarifies and amplifies 23 discussion already contained in the Final EIR, and provides background information on 24 past policy decisions and direction taken by the City, primarily with regards to water 25 conservation. As such, recirculation of the Final EIR is not required because the new 26 27 28 1 information added to the EIR only clarifies, amplifies and makes insignificant 2 modifications to an adequate EIR (CEQA Guideline, 15088.5(b)). 3 NOW THEREFORE, BE IT RESOLVED by the City Council of the City of 4 Carlsbad, California, as follows: 1. That the above recitations are true and correct. 6 2. The City Council does hereby find that the Final EIR 03-05, as modified by 7 Exhibit 1 attached hereto, the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, the Statement of Overriding Considerations, and the Mitigation and Monitoring Program 8 have been prepared in accordance with requirements of the California Environmental Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City of 9 Carlsbad. 10 3. The City Council has reviewed, analyzed, and considered Final EIR 03-05, as modified by Exhibit 1 attached hereto, the environmental impacts therein identified for this 11 project, the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, the Statement of Overriding Considerations, and the Mitigation and Monitoring Program prior to approving the 12 project, and they reflect the independent judgment of the City of Carlsbad City Council. 13 4. The City Council does accept as its own, incorporate as if set forth in full herein, and make each and every one of the findings contained in the Candidate Findings of Fact, as 14 modified by Exhibit 2 attached hereto, including feasibility of mitigation measures pursuant to Public Resources Code 21081 and CEQA Guidelines 15091, and infeasibility of project 15 alternatives. 5. The City Council hereby finds that the Mitigation and Monitoring Program is , 7 designed to ensure that during project implementation and operation the Developer and any other responsible parties implement the project components and comply with the feasible ,£ mitigation measures identified in the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, and the Mitigation and Monitoring Program. 19 6. Although certain significant or potentially significant environmental effects caused 20 by the project will remain, even after the adoption of all feasible mitigation measures and any feasible alternatives, there are specific economic, social, and other considerations that render 21 the unavoidable significant adverse environmental effects acceptable, as set forth in the Statement of Overriding Considerations. 22 7. The Record of Proceedings for this project consists of the Environmental Impact 23 Report, as modified by Exhibit 1 attached hereto, Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, Statement of Overriding Considerations, and Mitigation and 24 Monitoring Program; the "Record" upon which the City Council bases these Candidate Findings of Fact and its actions and determinations regarding the project includes, but is not limited to, 25 the Draft EIR, together with all appendices and technical reports referred to therein, whether separately bound or not; all reports, letters, applications, memoranda, maps, or other planning 26 and engineering documents prepared by the City, planning consultant, environmental consultant, project applicant, or others presented to or before the decision-makers as 27 28 1 determined by the City Clerk; all letters, reports, or other documents submitted to the City by members of the public or public agencies in connection with the City's environmental analysis 2 on the project; all minutes of any public workshops, meetings, or hearings, including the scoping sessions, and any recorded or verbatim transcripts/videotapes thereof; any letters, reports, or 3 other documents or other evidence submitted into the record at any public workshops, meeting, or hearings; matters of common general knowledge to the City that the City may consider, 4 including applicable State or local laws, ordinances, and policies, the General Plan, Zoning Ordinance, Local Facilities Management Plans, and all applicable planning programs and 5 policies of the City; and, all findings and resolutions adopted by the City in connection with the project, including all documents cited or referred to therein. 6 The custodian of the full administrative record shall be the City Clerk's Office, 1200 Carlsbad 7 Village Drive, and the Planning Director, 1635 Faraday Avenue, both in Carlsbad, CA 92008. 8. That the Environmental Impact Report (EIR 03-05) on the above referenced project, as modified by Exhibit 1 attached hereto, is certified; and that the Candidate Findings of 9 Fact, as modified by Exhibit 2 attached hereto, Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting Program are adopted and that the condition of the Planning 10 Commission contained in Planning Commission Resolution No. 6087, on file with the City Clerk and incorporated herein by reference, is the condition of the City Council. "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 made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other 1, paper seeking judicial review must be filed in the appropriate court not later than the ninetieth day following the date on which this decision becomes final; however, if within ten days after the decision becomes final a request for the record of the proceedings accompanied by the required deposit in an amount sufficient to cover the estimated cost of preparation of such 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 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 proceedings shall be filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, California 92008." 22 23 24 25 26 27 28 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 City Council of the City of Carlsbad on the 13th day of June, 2006, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Packard, Sigafoose NOES: None ABSENT: Council Member Hall ATTEST: Exhibit 1 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR-03-05 FOR THE PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT SCH #2004041081 June 13, 2006 1.0 INTRODUCTION The Final EIR for the Precise Development Plan and Desalination Plant project contains a comprehensive disclosure and analysis of potential environmental effects associated with the implementation of the Precise Development Plan and Desalination Plant project. In addition, the Final EIR contains responses to public comments received during the public review period held on the Draft EIR. Following publication of the Final EIR and distribution of responses to commenting parties, certain parties continued to submit comments up to and including testimony given at the project's public hearing held by the City of Carlsbad Planning Commission on the project on May 3, 2006. In order to address all issues raised by the public on the proposed project and provide comprehensive disclosure and documentation of environmental issues associated with the project, the following additional responses to comments are provided and are hereby incorporated into the Final EIR for consideration by the Carlsbad City Council. A review of the materials submitted to the City and of the draft minutes of the May 3, 2006, Planning Commission Hearing, identified two primary issues that would benefit from additional clarification: 1) Operation of the desalination plant independent of the Encina Power Station (EPS); and, 2) Water conservation as an "alternative" to the proposed project. 2.0 BACKGROUND Issue 1: Operation of the Desalination Plant as a stand alone facility - separate from the EPS The description of baseline conditions and the basis for the analysis in the Final EIR assumes the continued operation of the Encina Power Station (EPS) within the parameters of its historical operating conditions. This approach is based on a determination by the City that such a baseline condition reflects reasonably foreseeable circumstances, and therefore appropriately characterizes existing baseline conditions, in accordance with guidance provided by CEQA. Moreover, all relevant city permits ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 2 specify that if the desalination plant were to operate independently, Poseidon or its successors would have to obtain new permits and undergo new CEQA compliance. Certain public comments received on the EIR reflect different opinions on what is considered to be "reasonable" relative to assumptions for the continued operation of the EPS. Certain commentors asserted that shut-down of the EPS is relatively certain within the foreseeable future. These commentors further assert that the EIR analysis should take into account operation of the desalination plant under a scenario in which the EPS is no longer operating. While as noted above, the City believes it is reasonably foreseeable that EPS will continue to operate, the EIR does contain information that analyzes operation of the desalination plant in the absence of EPS operation. The following summary and clarification is provided to demonstrate more clearly that even if the EPS were to shut down permanently or for extended periods of time, the analysis and conclusions of the Final EIR are still accurate and valid. Issue 2: Water Conservation as an "Alternative" to the Proposed Project Comments received as a result of review of the Draft EIR suggest that additional or more aggressive water conservation efforts than are now being employed within the City of Carlsbad and the region could eliminate the need for the proposed project and should be addressed as an alternative to the proposed project. The EIR contains a discussion of water conservation efforts and how they relate to the proposed project, and in addition makes reference to the County Water Authority's Regional Water Facilities Master Plan, which also includes consideration of water conservation efforts relative to regional water supply. However, the information presented in these additional responses provides additional clarification and amplification on this issue. 3.0 CEQA REQUIREMENTS CEQA Guideline Section 15088.5 states that, where the Final EIR has not yet been certified, recirculation for public review is not required unless "significant new information" is added to the document (CEQA Guideline, § 15088.5, subds. [a], [b]). "Significant new information" requiring recirculation includes, for example, a disclosure showing that: (1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented. (2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 3 (3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project's proponents decline to adopt it. (4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. None of these conditions exist with respect to the information contained in these additional responses and revisions to the Final EIR. Instead, the information provided merely clarifies and amplifies discussion already contained in the EIR, and provides background information on past policy decisions direction taken by the Carlsbad City Council. This information does not identify any new significant environmental effects, nor does it identify any increase in a previously identified significant effect. Further, information provided on project alternatives does not reveal a new alternative that could feasibly reduce any of the identified significant effects of the project. Therefore, recirculation is not required because the new information added to the EIR only clarifies, amplifies and makes insignificant modifications to an adequate EIR (CEQA Guideline, 15088.5, subd.(b)). 4.0 DISCUSSION Issue 1: Operation of the Desalination Plant as a stand alone facility - separate from the EPS The Lead Agency and the Applicant have analyzed the impacts of the project with and without the operations of the Encina Power Station (EPS). This information is included in the Final EIR and Appendix E thereto. The resource areas potentially impacted under the "No Power Plant Operation" scenario are (1) Aesthetics; (2) Air Quality (3) Marine Biology - brine discharge; (4) Marine Biology - entrainment/impingement; and (5) Land Use. The baseline used by the lead agency for measuring potential environmental impacts of the project under CEQA is the current physical environment ("With Power Plant Operation" scenario), including current operating conditions. However, the worst case scenario in the Final EIR analyzed the No Power Plant Operation scenario to determine the level of significance in the "historical extreme." The Final EIR contains substantial evidence that shows that the impacts from a No Power Plant Operation scenario to have the same level of significance as the With Power Plant Operation scenario for all of the impact areas. /6 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 4 To provide further clarification on the analysis provided for the No Power Plant Operation scenario, Section 3 of the Final EIR has been revised, and the excerpted text edits are included in Section 5.0 of these Additional Responses. Aesthetics - The significance criteria (section 4.1.3) for Aesthetics in the Final EIR do not take into consideration the surrounding land uses when assessing visual impacts and thus the significance analysis will not change with or without the power plant in operation. Section 4.1.4 - Impacts - states that, "the project is not considered to have a substantial adverse effect on a scenic vista, or a substantially damaging effect on scenic resources because the proposed structure would represent a visual enhancement over what is currently located on the site (Page 4.1-3)." This enhancement of the area would occur with or without the operation of the EPS. Mitigation measures are proposed so that the project features are acceptable to the City of Carlsbad and conform to the City's long- term vision for the surrounding property, which includes relocation of the power plant to the back of the property and the transition of the front of the property to more public uses. In June of 2002 the Carlsbad City Council, and in October of 2002 the Carlsbad Housing and Redevelopment Agency, adopted six principals to pursue negotiations for the purchase of water from Poseidon: 1. Improved water reliability and quality in both normal and drought periods at CWA [County Water Authority] water rates. 2. Maximize beach and lagoon access for the public. 3. Maximize open space and recreational opportunities for the public. 4. Redevelop Encina Power Plant to maximize its best public and private uses. 5. Desalination facility protected from power market fluctuations. 6. Accrue a positive economic benefit from the increased industrial development of the coastal corridor. These principals were used to evaluate the project in addition to the Strategic Goals and 5-Year Vision Statements approved by the City Council. The project was found to be consistent with goal number 4 shown above (see pages 4.8-16 - 4.8.18 of the Final EIR), and would therefore not interfere with any future change in operation at the EPS. Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify aesthetic effects. Air Quality. The potential indirect air quality impacts due to emissions from power generation for the desalination facility are analyzed in the Final EIR with and without the EPS as the source of power. (See page 4.2-18 of the Final EIR). The Final EIR (page 4.2-18) notes that "the desalination plant will not contain any electrical power generation facilities, and will purchase this electrical power from the local electric utility, or a power generator, broker or seller. At this time no contract has been signed for power purchases from any supplier." Because no supplier of electricity has been designated, the Final EIR 17 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 PageS analyzed the indirect emission impacts from power generation for three different scenarios: (1) if power were purchased from EPS; (2) the local utility; (3) or another power provider. The second and third scenario analyzed the No Power Plant Operation scenario impacts studied in the Final EIR, and therefore there would be no change in the Final EIR significance findings if EPS were not operational. Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify air quality effects. Marine Biology Brine. The Final EIR for the desalination plant used the "historical extreme" operation and level of salinity to evaluate the impacts to the marine environment. In Section 4.3, Biological Resources, the Final EIR notes on page 4.3-44 that, "the EPS can run with an "unheated discharge" (i.e., no power plant operation)." The Final EIR modeled impacts of unheated "historical extreme" for flow scenarios using a discharge of 254 million gallons per day, which would represent conditions under the No Power Plant Operation scenario. Therefore the "historical extreme" conditions modeled account for impacts related to operation of the desalination facility without power plant operation and flow rates that would be generated by the desalination plant being operated independently. On page 4.3-45, the Final EIR notes that in the "historical extreme" the "highest bottom salinities were noted with the 'unheated' [i.e., No Power Plant Operation scenario] condition due to its reduced buoyancy." Again on that page, the Final EIR states that, "...to determine worst-case conditions, the unheated conditions are examined." Therefore the No Power Plant Operation scenario is the worst case condition studied by the Final EIR. The Analysis of Significance - Elevated Salinity Exposure Effects section of the Final EIR (page 4.3-50) indicates that significant impacts are found at an extended salinity exposure level of 40 parts per thousand (ppt). The Final EIR (page 4.3-50) indicates that under the "historical extreme" the end of pipe salinity of 40.1 ppt "...is diluted across the ZID [zone of initial dilution] to about 38.2 ppt..." Also on page 4.3-50, the Final EIR concludes that "extended exposure to salinity levels above 40 ppt would be avoided under all proposed operating conditions (emphasis added)." The Final EIR (page 4.3-51) goes on to conclude that "since the 'historical extreme' scenarios under all operating conditions would not result in salinity levels exceeding this threshold for an extended period of time, impacts related to elevated salinities would not be significant (emphasis added)." Therefore the No Power Plant Operation scenario, or "unheated discharge" condition has been analyzed in the Final EIR and the impacts from brine discharge in this worst-case scenario were found to be less than significant. /a- ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 6 Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify effects of brine discharge on marine organisms. Marine Biology Entrainment. Data presented in Appendix E of the Final EIR (see Carlsbad Desalination Facility Intake Effects Assessment (draft), dated March 3, 2005, and prepared by Tenera Enviromental) supports a finding of no significant impact for entrainment. The referenced study demonstrates that entrainment of marine organisms at the EPS is a function of the volume of water flowing through the intake. If the desalination facility were to operate at 106 million gallons per day (MOD) under the No Power Plant Operation scenario, there would be 100% mortality resulting from impingement of the larval fish caught on the desalination plant screens and filters (106 MOD represents a total maximum withdrawal volume, which represents a worst case volume, as compared to the average withdrawal volume of 104 MOD). As shown in Table 1, the entrainment loss would represent between 0.6% and 11.8% of the EPS source water supply of larvae, depending on the fish group modeled. Assuming an additional 200 MOD was allowed to flow through the intake to the discharge channel for dilution of the concentrated seawater discharge from the desalination facility, there could be additional entrainment losses. The level of impact to the organisms and associated mortality due to the diversion of the dilution water under the No Power Plant Operation scenario will be less than the impact had the water been pumped through the condensers as is modeled under the With Power Plant Operation scenario. However, lacking data to document actual mortality under the No Power Plant Operation scenario mode of operation, the possible range is 0% to 100% mortality of the larval fish in the dilution water. Under these conditions the minimum larval fish entrainment loss for the desalination facility (106 MOD) and associated dilution water (200 MGD) would be 0.6% to 11.8% and the maximum would be 1.7% to 34.1%, depending on the design of the facility and species modeled. (Table 1). Table 1 Desalination Facility's Estimated Entrainment Loss Under No Power Plant Operation Fish Group CIQ gobies Desalination Facility Entrainment Loss 11.8% Dilution Water Entrainment Loss 0%-22.3% Minimum Combined Entrainment Loss 11.8% Maximum Combined Entrainment Loss 34.1% ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page? Combtooth blennies 5.7% 0%-10.8% 5.7% 16.5% Northern anchovy 0.6% 0%-1.1% 0.6% 1.7% Significance of Entrainment Losses. The loss of larval fish entrained by the EPS cooling water flows, whether the EPS is operating or not, are a small fraction of marine organisms from the abundant and ubiquitous near-shore source water populations. Using standard fisheries models for adult fishes, the loss of larvae (99 percent of which are lost to natural mortality) due to the desalination facility entrainment at 306 MOD would have no effect on the species' ability to sustain their populations, including the gobies at 34.1%. As noted in Table 1 above, gobies are not substantially impacted because of their widespread distribution and high reproductive potential due to spawning several times a year and are able to sustain conditional larval stage mortality rates of 34% and higher without a decline in adult population level. This absence of population level effects for adult gobies is especially true for the species' early larval stages. The sheer numbers of larvae that are produced by the adult gobies are resistant to the effects of both natural mortality and reasonably high levels of conditional mortality. The most frequently entrained species are very abundant in the area of EPS intake, Agua Hedionda Lagoon, and the Southern California Bight so that the actual ecological effects due to any additional entrainment from the project at either level of plant operations are insignificant. Species of direct recreational and commercial value constitute a very small fraction (less than 1 percent) of the entrained organisms. Therefore, the operation of the desalination facility does not cause a significant ecological impact. California Department of Fish and Game (2002) in their Nearshore Fishery Management Plan provides for sustainable populations with harvests of up to 60 percent of unfished adult stocks. The incremental entrainment ("harvest") effect of larval fishes from the desalination facilities operations at 106 or 306 MOD is approximately 1 to 34 percent (depending on the species); losses that would have no significant effect on the source water populations to sustain themselves. Additionally, entrainment mortality losses are not harvests in the common sense, because the larval fish are not removed from the ocean, but are returned to supply the ocean's food webs - the natural fate of at least 99 percent of larvae whether entrained or not. Generally less than one percent of all fish larvae become reproductive adults. Revisions to the Final EIR text have been made to provide additional clarification on entrainment effects under the No Power Plant Operation scenario. Excerpts of the revised text are included in Section 5.0 of these Additional Responses. Marine Biology Impingement. The Applicant has calculated the approach velocity of the water flowing through the EPS intake under the No Power Plant Operation scenario and determined that the velocity would not exceed 0.5 feet per second. Under these ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 PageS operating conditions, the intake would meet impingement mortality performance standards established in the revised 316(b) permitting requirements. Revisions to the Final EIR text have been made to provide additional clarification on impingement effects under the No Power Plant Operation scenario. Excerpts of the revised text are included in Section 5.0 of these Additional Responses. Land Use - The proposed project causes no significant impacts to land use and is consistent with existing land use plans with or without the existence and operation of the EPS. The project is consistent with the Public Utilities (U) land use designation in the General Plan and Zoning Ordinance and is consistent regardless of power plant operations. In addition the project is consistent with the South Carlsbad Coastal Redevelopment Plan for the area and would continue to be consistent regardless of the operation of the power plant. The Final EIR (page 4.8-16) notes that, "The site of the desalination plant was specifically selected so as not to conflict with two redevelopment plan goals. The first goal relates to facilitating the conversion and possible relocation of the existing power plant to a smaller more efficient facility. The second goal relates to the enhancement of commercial and recreational opportunities in the plan area." Although any changes in the power plant configuration will require additional environmental review and approval, a siting study was conducted for the desalination plant in which five sites within the EPS property were reviewed to find a location for the desalination facility that was sensitive to the redevelopment plan goal and would "create the least amount of constraints on any future conversion of the Encina Power Station." (See pages 4.8-16 - 4.8.18 of the Final EIR for details.) Therefore any future changes to the EPS will not be affected by the siting of the desalination plant. Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify land use effects Issue 2: Water Conservation/Recycled Water Only and Increased Conservation/Recycled Water as "Alternatives" to the Proposed Project As discussed in Section 9 of the Final EIR (pages 9-1 to 9-7), a baseline assumption incorporated in the Final EIR analysis is that the water conservation and water recycling elements included in Carlsb ad Municipal Water District's 2000 Urban Water Management Plan (UWMP) and San Diego County Water Authority's 2004 Regional Water Facilities Master Plan (RWFMP) will be fully implemented. However, even with the targeted conservation and recycling in place, both the San Diego County Water Authority (CWA) and Carlsbad Municipal Water District (CMWD) identified a need for ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 9 additional local water in an amount equal to or greater than the project capacity. The update to the 2000 UWMP, approved in December 2005, continues to identify that need. The RWFMP projected that in 2002, approximately 13,700 acre-feet of recycled water was used within CWA's service area annually. This number is projected to increase to over 53,000 acre feet per year by 2020. As noted in the Final EIR, while conservation is not technically a water supply "source", it is also an important strategy employed within the region to reduce demand for water supply. Water conservation programs are maintained by MWD, CWA and local water agencies. Even though the Final EIR references the role of conservation and recycling in local and regional water supply management and the policy direction that has been pursued relative to water conservation and recycling, certain commenting parties indicated that additional conservation/recycling should be considered as a project alternative. A discussion of water conservation and recycling efforts is provided in the Final EIR to further clarify how conservation was a consideration that helped shape policy that relates to the proposed project. Specifically, consideration of water conservation and recycling as alternatives to the proposed project has been given in past policy making. However, the level of water conservation and recycling necessary to replace the need for the proposed project has been rejected as alternatives to the project primarily for public policy reasons that are further explained in the Final EIR. Section 15126.6(c) of the CEQA Guidelines provides for discussion of any alternatives that were considered by the lead agency but were rejected as infeasible. Additionally, Section 15132(e) states that a Final Environmental Impact Report may consist of "any other information added by the Lead Agency." Staff has included revisions to the Final EIR text to provide additional clarification on the rationale for rejection of alternatives to the proposed project that involve additional conservation and/or recycling. The revised text is included in Section 5.0 of these Additional Responses. 5.0 FINAL EIR TEXT EDITS The following are excerpts of portions of text from the EIR that have been revised as a result of these Additional Responses. Revisions that have been made as a result of these Additional Responses are noted in strike-through (deletions) and underline (additions) text. The following text replaces text that appears In Section 3.3 of the EIR (Starting on Page 3-14, under the Subheading "Power Plant Baseline Operating Conditions"): Power Plant Baseline Operating Conditions ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 10 The PDF will not modify the Encina power plant's permitted operating capacity. However, the following information is provided to accomplish the City's objective of establishing baseline conditions for identifying existing facilities and operations on site for the purpose of increasing knowledge and understanding about station operation and onsite facilities. It should be noted this project does not include any modifications that would affect the power plant's operating capacity. Power generation capacity, as described in the NPDES Permit, is provided by a total of six power generator units': • Unit 1-107 megawatts (MW) • Unit 2-104 MW • Unit 3-110 MW • Unit 4-287 MW • Unit 5-315 MW • Gas Turbine-16 MW All of these generating units have been designated as "Reliability Must Run" (RMR) by the ISO. The RMR Generation designation represents the minimum generation (number of units or MW output) required by the ISO to be available to maintain system reliability. At full production output, the Encina power plant has the capability to directly or indirectly serve roughly half of the power demand for San Diego County. Units 1 through 5 are steam turbine generators, each with its own boiler that generates heat up to 1005 degrees Fahrenheit. Purified water runs through the boilers turning to high-pressure steam that is used to spin the turbines to generate electricity. The plant relies on seawater to cool and condense the steam after its energy is expended spinning the turbine. Seawater flows into the Agua Hedionda Lagoon through the jetty west of Carlsbad Boulevard into the outer lagoon and into an intake channel located at the southwestern end of the lagoon. The seawater is then pumped into condensers to condense the steam on a non-contact heat transfer basis, and then is returned to the ocean via a discharge channel located to the south of the lagoon's confluence with the ocean. The power plant cooling water discharge is regulated under a National Pollutant Discharge Elimination System (NPDES) permit, issued with the Regional Water Quality Control Board. The plant is currently permitted to discharge a maximum of 1 NPDES Permit, Order No. 2003-03, Regional Water Quality Control Board, February 16, 2000.2 California Independent System Operator website: www.caiso.com, accessed July 29, 2004. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 11 approximately 860 million gallons per day (mgd) of cooling water. For purposes of this analysis, data for power plant operation includes records dating from 1980 to 2000. The generators identified above were phased in from the plant's initial construction in 1952 through 1978. Therefore, the dataset used in the EIR analysis represents operation of all production units, and is considered to provide data representing the current operational characteristics from which to analyze existing baseline conditions. With that being said however, the analysis of effects associated with seawater intake and discharge are evaluated based on conditions that represent two separate scenarios, with and without operation of the EPS. The average cooling water discharge rate over the 20-year period was 576 mgd. Daily average flow rates have not fallen below 304 mgd in the 20-year dataset. As noted in the analysis presented in Section 5 of this EIR. the 304 mgd flow rate is used as the worst case operating condition, under the assumption that the discharge is "unheated". which therefore represents conditions without operation of the EPS. For purposes of this discussion, this scenario is referenced as the "No Power Plant Operation" scenario. The following text replaces text that appears in Section 4.3.4 of the EIR (Starting on Page 4.3-35, under the Subheading "Impingement Effect"): Impingement Effect • The desalination plant operation does not require the power plant to increase the quantity of water withdrawn nor does it increase the velocity of the water withdrawn. • The Carlsbad Desalination Plant will not have a separate direct lagoon or ocean intake and screening facilities, and will only use cooling water that is already screened by the EPS intake. • Under the No Power Plant Operation scenario, approach velocity of the water flowing through the EPS intake would not exceed 0.5 feet per second. Under these operating conditions, the intake would meet impingement mortality performance standards established in the revised 316(b) permitting requirements. • Therefore, the Carlsbad Desalination Plant will not cause any additional impingement losses to the marine organisms impinged by the EPS, under the assumed baseline EPS operating conditions, and would not result in significant impingement effects under the No Power Plant Operation scenario. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 12 The following text replaces text that appears in Section 4.3.4 of the EIR (Starting on Page 4.3-36, under the Subheading "Entrainment Losses"): Entrainment Losses • Based on in-plant testing, the average observed entrainment mortality of the power plant was 97.6 percent (2.4 percent survival). Living fish larvae entrained by the Carlsbad desalination plant would represent an incremental loss of approximately 0.01 to 0.28 percent of the larvae present in the power plant source water, assuming continued operation of the EPS. Under the No Power Plant Operation scenario, living fish larvae entrained by the Carlsbad desalination plant would represent a loss of approximately 0.6% to 34.1% of the source populations, depending on the final design of the desalination facility and on the species. The cooling water intake structure is part of the EPS existing operations and is presently regulated under Section 316(b). The desalination plant feedwater withdrawal does not include a cooling water intake structure. Therefore, it is not subject to intake regulation under the Federal Clean Water Act (CWA) Section 316(b). However, since the desalination plant will withdraw intake seawater from the EPS discharge flow, the study was conducted consistent with the intent of Section 316(b), which requires that baseline conditions be established. The desalination plant feedwater intake will not increase the volume, nor the velocity of the EPS cooling water intake nor will it increase the number of organisms entrained or impinged by the EPS cooling water intake structure. Therefore, the project would not result in any additional impingement effects of the EPS and therefore, impingement effects are not considered as significant impacts attributable to desalination plant operations.For purposes of this analysis, baseline conditions reflect quantities of larvae present in the sewater intake, regardless of whether the EPS is in operation or not. Study Methodology: The study required an assessment of both the source water for the EPS (lagoon and ocean) and the discharge from the EPS (the desalination plant's feedwater supply). The source water was analyzed to establish population characteristics (relative abundance) for species potentially impacted by the desalination plant. The desalination plant feedwater was characterized to determine the baseline conditions for potential impacts associated with the desalination facility. Specifically, the feedwater characterization examined the type and quantity of organisms that survive entrainment through the EPS cooling water intake structure that could subsequently be impacted by the desalination plant operations. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 13 The EPS source water was partitioned into lagoon and nearshore ocean areas for modeling purposes; ten sampling stations were chosen so that all source water community types would be represented, including five lagoon stations and five nearshore stations. Samples were also collected from EPS's discharge (desalination plant feedwater supply) just before the water flows into the power station's discharge pond. Laboratory processing for both the feedwater and source water consisted of sorting (removing), identifying, and enumerating all larval fishes, pre-adult larval stages of Cancer spp. crabs, and California spiny lobster larvae from the samples. Identification of larval fishes was done to the lowest taxonomic level practicable. Source Water Larval Abundance Estimates: Data collected from three source water surveys conducted on June 10, June 24, and July 6,2004, included a total of 27,029 larval fishes, with 4,750 specimens collected from the five nearshore stations and the remaining 22,279 specimens from the lagoon stations. Two taxa comprised 84 percent of the total number of larval fishes collected from all surveys and source water stations combined: three species from the goby family (Clevelandia ios, Ilypnus gilberti, Quietula y-caudd) hereinafter referred to as CIQ gobies comprised 65 percent and combtooth blennies (Hypsoblennius spp.) comprised 19 percent. In addition, four species of target invertebrates were collected in the samples from both the lagoon and nearshore sampling stations: California spiny lobster (Panulirus interruptus, 93 specimens), yellow rock crab (Cancer anthonyi, 31 specimens), brown rock crab (Cancer antennarius, 4 specimens), and slender crab (Cancer gracilis, 2 specimens). The mean concentration of CIQ goby larvae from all source water stations and surveys combined was approximately 4,900/1,000 m3 and the mean concentration of combtooth blennies was approximately 1,200/1,000 m3. Feedwater (EPS Discharge) Larval Abundance Estimates: A total of 1,648 fish larvae was collected during two surveys of the EPS discharge water conducted on June 16 and July 6, 2004 (Table 4.3-3). Four taxa comprised 95 percent of all of fish larvae in the EPS discharge flows from which the proposed desalination plant would withdraw its feedwater supply. They were combtooth blennies, CIQ gobies, labrisomid kelpfishes (Labrisomidae unid.), and garibaldi (Hypsypops rubicundus). Gobies and blennies combined accounted for nearly 72 percent of the larvae identified in the feedwater. No target invertebrate larvae were found in any of the samples from the EPS discharge. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 14 TABLE 4.3-3 Total Counts and Mean Concentrations of Larval Fishes from EPS Discharge Mean Concentration Taxon Common Name Total Count Percent Cum. Percent (#/1,OOOm3) Hypsoblennius spp. CIQ gobies Labrisomidae unid. Hypsypops rubicundus Rimicola spp. Gibbonsia spp. Engraulidae Gobiesocidae unid. Sciaenidae Blennioidei Atherinopsidae larval/post-larval fish unid. Heterostichus rostratus Syngnathus spp. Paralichthys califomicus Chaenopsidae unid. Labridae larvae, unidentified yolksac Typhlogobius califomiensis Agonidae unid. combtooth blennies CIQ goby complex labrisomid kelpfishes garibaldi kelp clingfishes clinid kelpfishes anchovies clingfishes croakers Blennies Silversides giant kelpfish Pipefishes California halibut Clinids Wrasses blind goby Poachers 766 426 205 174 13 12 12 8 8 7 6 3 1 1 1 1 1 1 1 1 Total 1,648 46.48% 25.85% 12.44% 10.56% 0.79% 0.73% 0.73% 0.49% 0.49% 0.42% 0.36% 0.18% 0.06% 0.06% 0.06% 0.06% 0.06% 0.06% 0.06% 0.06% ••• 46.48% 72.33% 84.77% 95.33% 96.12% 96.84% 97.57% 98.06% 98.54% 98.97% 99.33% 99.51% 99.58% 99.64% 99.70% 99.76% 99.82% 99.88% 99.94% 100.00% §•!•! 1,119.89 630.94 291.66 230.14 17.54 16.38 15.83 10.15 11.38 9.21 7.36 3.50 1.14 0.92 1.28 0.92 1.28 2.45 1.96 2.19 ^•IH Feedwater Larval Survival Results: Eleven surveys to estimate the survival of larval fishes in the EPS discharge flow were conducted from June through November 2004. A total of 1,989 fishes was collected from the eleven surveys (Table 4.3-4). Larvae that were alive immediately after collection were placed in separate containers and observed for up to three hours after collection. Approximately half of the larvae continued swimming for up to two hours after collection while the others died between 0.5-1.5 hours after collection. The species of larvae that survived entrainment and sampling were CIQ gobies, combtooth blennies, and unidentified clingfishes. The highest concentration of larval fishes (2,444/1,000 m3) was collected July 6, 2004, and the lowest concentration (93/1,000 m3) was collected on October 21, 2004. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 15 The average survey percent survival ranged from 0 percent (November 2 survey) to 9.2 percent (November 30 survey) (Table 4.3-4). The overall average percent survival based on an average of survival data from each sample containing fish (n=223 out of a 291 total surveys) is 2.40 percent with a standard deviation of 11.22. The average percent survival based on each survey's (n=ll) average survival data is 2.71 with a standard deviation of 11.24 among survival averages for the 11 surveys. The surviving larvae that enter the desalination plant will be retained on the pretreatment filters, which could be either granular media facilities or membrane filters. The retained organisms will be removed from the pretreatment filters with the filter media backwash. TABLE 4.3-4 Summary Of Larval Fish Data Collected During In-Plant Survival Studies From EPS Discharge Flows During June Through November 2004. Number of Total Volume Date Collected Samples1 Filtered (m3) Average Larval Fish Concentration (#/1,000 m3) per Survey2 (s.d. in parenthesis) Average % Total n Total # Alive Survival per Larvae upon Survey3 Collected Collection (s.d. in parenthesis) 6/16/2004 7/06/2004 7/20/2004 8/13/2004 8/26/2004 8 9 30 30 32 117 112 301 339 284 1,289.4 (754.2) 2,443.8 (875.0) 1,053.3 (674.6) 564.4 (632.9) 415.4 (350.9) 140 276 315 192 112 2 13 7 2 1 1.8 (4.7) 4.3 (4.1) 1.6 (4.0) 0.005 (0.02) 0.6 (3.2) ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 16 9/09/2004 9/23/2004 10/21/2004 11/02/2004 11/18/2004 11/30/2004 31 30 31 30 30 30 342 344 347 257 271 216 2,027.5 (2,246.4) 668.8 (1,134.6) 93.0 (123.9) 182.3 (161.9) 132.9 (166.7) 264.5 (291.6) 590 200 31 47 34 52 4 2 1 0 2 4 0.5 (1.8) 1.2 (5.5) 5.9 (24.3) 0 4.6 (13.8) 9.2 (24.2) 1. The number of samples per survey increased beginning July 20, 2004 when the duration of sampling increased to cover 24- hour periods. 2. The average larval fish concentration per survey was calculated by summing the individual sample concentrations and dividing by the number of samples in each survey. 3. The average percent survival per survey was calculated by summing the individual sample survival percentages and dividing by the number of samples containing fish larvae in each survey. In order to assess any potential effects of the desalination facility feedwater withdrawal on local fishery resources, three taxa were selected: CIQ goby complex, combtooth blennies, and northern anchovy. These taxa were some of the most commonly entrained species in the EPS cooling water intake structure or were species (northern anchovy) that may be of interest to fishery managers. Larvae of species with high value to sport and commercial fisheries such as California halibut were entrained in such low numbers (approximately 0.06 percent of the total number of EPS-entrained larvae) that any effects on source water populations of these species could not be modeled. Entrainment Effects Model: The Empirical Transport Model (ETM) used in the analysis is based on principles used in fishery management. To determine the effects of fishing on a population, a fishery manager needs an estimate of the number of fishes in the population and the number of fishes being removed by the fishery. ETM is recommended and approved by the California Energy Commission (CEC), California Coastal Commission (CCC), Regional Water Quality Control Boards and other regulatory and resources agencies for analyzing impacts to fisheries. This assessment assumes 100 percent mortality of all organisms surviving the EPS upon withdrawal into the desalination facility. The ETM first takes the estimate of daily mortality (also known as Proportional Entrainment (PE)), and expands the estimate over the number of days the larvae from a single cohort, or batch of larvae, would be exposed to entrainment. The ETM thereby predicts regional effects on appropriate adult populations. Finally, the effects of 2.°! ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 17 entrainment are examined in the context of survival data collected from the EPS discharge. The estimate of daily incremental mortality, or proportional entrainment (PE), was computed as the ratio of the number of larvae in the water withdrawn by the proposed facility to the number of larvae in the surrounding source water. The average concentration of larvae in the feedwater, as noted in Table 4.3-4, was multiplied by desalination facility's maximum feedwater withdrawal volume of 401,254 m3/day (106 mgd). A total maximum withdrawal volume of 106 mgd (as compared to average withdrawal of 104 mgd) was used as a worst case volume, under a scenario where maximum backwash water volumes would be used during a period of maximum RO production. Average concentrations of larval fishes from the source water survey data were multiplied by the volume estimates for each of the water body segments (total of three lagoon and nine nearshore areas) and then combined to estimate the average source water population. The estimated effects of withdrawal for desalination operations on a single cohort of larvae were calculated using the ETM as: PM = I - (1 - pE)duration, where Pm is the proportional level of mortality resulting from the water withdrawals by the proposed desalination facility. A larval duration of 23 days from hatching to entrainment was calculated from growth rates using the length representing the upper 99th percentile of the length measurements from larval CIQ gobies collected from entrainment samples during 316(b) studies (Tenera 2004). The results of the analysis are contained in Table 4.3-5. Estimates of PE ranged from 0.01 percent for northern anchovy to 0.55 percent for CIQ gobies. TABLE 4.3-5 Estimates of Average Daily Mortality (PE) (Standard Error in parentheses) Feedwater Volume - Maximum Flow Fish Group 401,254m3/day (106 MGD) CIQ gobies Combtooth blennies 0.55% (2.08) 0.36% (0.87) ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 18 Northern anchovy 0.01% (0.05) Fish larvae entrained by desalination plant represent an incremental loss of the EPS source water supply of larvae. The average observed entrainment mortality of the EPS was 97.6 percent (2.4 percent survival). Since 97.6 percent of the larvae are dead at the point of the desalination plant intake, the incremental entrainment loss on source water populations is the 2.4 percent survival rate times the desalination plant proportional entrainment for each specific species in the EPS discharge. These incremental effects range from 0.01 percent for northern anchovy to 0.28 percent for CIQ gobies (Table 4.3-6). The incremental mortality assumes 100 percent mortality of all organisms surviving the EPS upon withdrawal into the desalination facility. However, under the No Power Plant Operation scenario, no mortality is attributed to EPS operations and all entrainment effects are assigned to the desalination plant. TABLE 4.3-6 Estimates of Proportional Mortality (Pm) Fish Group Pm based on Maximum Length at Entrainment Desalination Plant Entrainment from EPS Discharge Flow Maximum flow -106 MGD (401,254m3/day) Estimate When Applying The Pm Based on No Power Overall Average Survival Estimate Of 2.4 Percent1 Incremental Entrainment Loss Due to Desalination Plant Operations Maximum flow-106 MGD (401,254m3/day) Plant Operation Scenario Desalination Plant Entrainment with Maximum flow - 306 CIQ gobies Combtooth blennies Northern anchovy 11.8% 5,7% 0.6% 0.28% 0.14% 0.01% 34.1% 16.5% 1.7% 1. The overall average percent survival (2.4 percent with a standard deviation of 11.22) was based on an average of each sample that contained fish (n=223). 3/ ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 19 The role of turbulence and temperature and how larvae are affected were not evaluated at the EPS. It is noted that mortality from entrainment through the cooling water intake structure may be primarily due to pressure and turbulence in the water flow, rather than temperature increases resulting from the cooling operation. Since the desalination plant feedwater will be subject to the same turbulence whether or not the EPS is operating, it is reasonable to estimate incremental mortality for the heated and unheated desalination scenarios using the survival data presented in Table 4.3-4 Using those data, and based on typical operation of the EPS, the entrainment loss rate ranges from 0.01 percent to 0.28 percent. If the desalination facility were to operate at 106 million gallons per day (MOD) under the No Power Plant Operation scenario, there would be 100% mortality resulting from impingement of the larval fish caught on the screens and filters. The No Power Plant Operation scenario would increase the flow volume attributable to the desalination plant by an additional 200 MOD for dilution of the concentrated seawater discharge from the desalination facility. The level of impact to the organisms and associated mortality due to the diversion of the dilution water under the No Power Plant Operation scenario will be less than the impact had the water been pumped through the condensers as is modeled under the With Power Plant Operation scenario. However, lacking data to document actual mortality under the No Power Plant Operation scenario, the possible range is 0% to 100% mortality of the larval fish in the dilution water. Under these conditions the minimum larval fish entrainment loss for the desalination facility (106 MOD) and associated dilution water (200 MGD) would be 0.6% to 11.8% and the maximum would be 1.7% to 34.1%. depending on the design of the facility and species modeled. (Table 4.3-6). Although combtooth blennies had higher PE estimates, CIQ gobies had higher estimates of Pm because their larvae were exposed to entrainment for a longer period of time (either from multiple spawnings of one species or from different species spawning at different times). Adult CIQ gobies and combtooth blennies are very common in Agua Hedionda Lagoon habitats and these levels of mortality would not be expected to result in any population-level effects because these fishes are adapted to estuarine environments where large percentages of their larvae are exported into nearshore areas during tidal flushing. Gobies are abundant in the shallow mudflat and eelgrass habitats that are common in Agua Hedionda middle and inner lagoons. A significant proportion of the CIQ goby larvae in the outer lagoon at the point of entrainment likely originated in the inner and middle lagoon segments and would be exported from the lagoon system on the following ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 20 tidal cycle. Adult combtooth blennies are common in outer lagoon habitats including rock jetties, docks, pilings, and aquaculture floats, as well as some sandy areas in the lagoon, which explains the large numbers of the larvae found in the EPS discharge flows. The estimates for northern anchovy are much lower than the other two taxa because they are more common in the nearshore areas than the lagoon. In fact, the estimates for northern anchovy are very conservative because these fish are distributed over a large area and therefore the estimate of their source water population would be much larger than the estimate used in the calculation of PE. Significance of Entrainntent Losses: The small proportion of marine organisms lost to entrainment as a result of the desalination plant would not have a substantial effect on the species' ability to sustain their populations because of their widespread distribution and high reproductive potential. The most frequently entrained species are very abundant in the area of EPS intake, Agua Hedionda Lagoon, and the Southern California Bight, and therefore, the actual ecological effects due to any additional entrainment from the desalination plant are less than significant. California Department of Fish and Game (2002) in their Nearshore Fishery Management Plan provides for sustainable populations with harvests of up to 60 percent of unfished adult stocks. The incremental entrainment (or "harvest") effect of larval fishes from the desalination plant operations between 0.01 and 0.28 percent up to 34.1% under the No Power Plant Operation scenario depending on the design of the facility and species modeled. The loss of larval fish entrained by the EPS cooling water flows, whether the EPS is operating or not are a small fraction of marine organisms from the abundant and ubiquitous near-shore source water populations. Using standard fisheries models for adult fishes, the loss of larvae (99 percent of which are lost to natural mortality) due to the desalination facility entrainment at 306 MGD would have no effect on the species' ability to sustain their populations, including the gobies at 34.1%. Gobies are not substantially impacted because of their widespread distribution and high reproductive potential due to spawning several times a year, are able to sustain conditional larval stage mortality rates of 34% and higher without a decline in adult population level. This absence of population level effects for adult gobies is especially true for the species' early larval stages. The sheer numbers of larvae that are produced by the adult gobies are resistant to effects of both natural mortality and reasonably high levels of conditional mortality. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 21 The most frequently entrained species are very abundant in the area of EPS intake, Agua Hedionda Lagoon, and the Southern California Bight so that the actual ecological effects due to any additional entrainment from the project at either level of plant operations are insignificant. Species of direct recreational and commercial value constitute less than 1 percent of the entrained organisms, and considering the fact that in general, less than one percent of all fish larvae become reproductive adults, the operation of the desalination plant would not result in significant impacts on those species. California Department of Fish and Game (2002) in their Nearshore Fishery Management Plan provides for sustainable populations with harvests of up to 60 percent of unfished adult stocks. The incremental entrainment ("harvest") effect of larval fishes from the desalination facilities operations at 106 or 306 MGD is approximately 1 to 34 percent (depending on the species); losses that would have no significant effect on the source water populations to sustain themselves. Additionally, entrainment mortality losses are not harvests in the common sense, because the larval fish are not removed from the ocean, but are returned to supply the ocean's food webs - the natural fate of at least 99 percent of larvae whether entrained or not. Generally less than one percent of all fish larvae become reproductive adults. The following text replaces text that appears in Section 6.0 of the EIR (Starting on Page 6-1): SECTION 6.0 ALTERNATIVES TO THE PROPOSED ACTION In order to fully evaluate proposed projects, CEQA requires that alternatives be discussed. Section 15126.6 of the State CEQA Guidelines requires the discussion of "a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives." The alternatives discussion is intended to "focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives as listed in Section 3.0 of this EIR. The alternatives discussion focuses on the desalination plant aspect of the PDF. The Alternatives discussion in this EIR focuses on four project alternatives: a No Project/No Development Alternative, an Alternative Site Location Alternative, a Modified Intake Design Alternative, and a Reduced Project Capacity Alternative. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 22 Along with the Alternatives identified in this Section, previous consideration has been given to policy options that are discussed as alternatives that have been considered and rejected for the purposes of this EIR. These alternatives include the Recycled Water Only Alternative and Increased Water Conservation/Recycled Water Alternative. These alternatives are not currently considered to be feasible project alternatives, and for that reason, are not put forward as alternatives that the City Council may select as alternatives actions to project approval. However, based on comments received on the EIR. the City of Carlsbad believes it important to emphasize and clarify past policy decisions relative to water recycling and conservation, and how those water management strategies relate to the proposed project. Alternatives Considered but Rejected as Infeasible Section 15126.6(c) of the CEQA Guidelines provides for discussion of any alternatives that were considered by the lead agency but were rejected as infeasible. The alternatives, identified as the Recycled Water Only Alternative and Increased Water Conservation/Recycled Water Alternative, have been considered in past decision making by the City and both have been determined to be infeasible, because they require recycling and conservation practices that go beyond what is considered to be acceptable from a public policy perspective. The following discussion provides information that explains how water recycling and conservation have and will continue to play an important role in local and regional water management. This discussion is also intended to provide a framework for understanding past policy decisions that limit the extent to which recycling and conservation can be taken without causing unacceptable social and economic effects. Water conservation and recycling has long been a part of local and regional water supply strategies. Conservation and recycling involve social and economic impacts that are given consideration by policy makers in terms of how much these strategies are feasibly able to contribute to reducing and/or satisfying demand. The Department of Water Resources' draft California Water Plan Update 2005 acknowledges that local efforts to conserve and reuse water must continue to be implemented and new water supplies must be developed (including up to 500.000 acre- feet of desalination) to ensure an adequate water supply for California's future. (California Water Plan Highlights, page 15.) Update 2005 states that if recent growth trends continue, water conservation and reuse alone will not be adequate to meet Southern California's future needs. More than 600.000 acre-feet of new supply will be needed to meet the South Coast region's needs by the year 2030. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 23 The San Diego County Water Authority's Regional Water Facilities Master Plan has projected that an additional one million people will be added to the county over the next three decades. To keep up with this growth, it is expected that by 2020 water demands will grow bv 107.000 acre feet (AF) over 2005 total projected demands to 813.000 acre feet per year (AFY). The contribution from water conservation efforts account for 54,900 AFY of estimated reduced demand today and is expected to grow bv nearly 75% to a potential 93,200 AFY in reduced demand over the next 15 years. The increased demand projection of 107.000 AFY is net of the 93.200 AFY of projected savings due to ongoing and planned water conservation efforts, but still requires additional supply to meet the demands of growth in the region. The City of Carlsbad currently imports 100% of its potable water supply. The City of Carlsbad's pursuit of seawater desalination is in direct response to growing concern over water supply reliability. This concern is driven by several factors, including climate, limited surface and groundwater supplies, expected population growth, and decreasing reliability of imported water resources stemming from the Colorado River 4.4 Plan and OSA. Sacramento-San Joaquin Bay-Delta Accord, and other regional, state and federal water issues. Conservation programs defer or limit the rate of demand for water: however, these programs cannot reliably address the City's long-term water supply needs. The Carlsbad Municipal Water District ("CMWD") considered a variety of actions to improve its water supply reliability, diversify supplies, and reduce dependence on imported water. These actions include a commitment to implement all cost-effective water conservation and recycling opportunities. Today. CMWD has one of the most aggressive conservation and recycling programs in the San Diego region. CMWD is also a signatory to the California Urban Water Conservation Council Memorandum of Understanding ("MOU"). Signatories to the MOU implement 14 Best Management Practices that have received a consensus among water agencies and conservation advocates as the best and most realistic methods to produce significant water savings from conservation. Conservation on a local level is implemented through strategies identified in the Urban Water Management Plan (TJWMP). The goals of the City's water conservation program are to: reduce demand for more expensive, imported water: demonstrate continued commitment to the Urban Best Management Practices (BMPs): and to ensure a reliable ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 24 future water supply. The UWMP includes water demand management measures, consisting of: • Best Management Practices / Audits • Low consumption toilets / showerheads / faucets • Leak detection / Metering • Landscape programs / Drought tolerant plantings • Public information / School education • Commercial & Industrial conservation measures • Water waste prohibitions In 1991, Carlsbad adopted a five-phase Recycled Water Master Plan designed to save potable water. The result is that CMWD has the most aggressive water recycling program in the region when measured in terms of percent of supply derived from recycled water. The Recycled Water Master Plan is referenced herein. The implementation of the water conservation and water recycling elements included in CMWD's UWMP are on schedule and are achieving the desired reduction in potable water use. These programs are designed to work in tandem with the proposed seawater desalination project to accomplish the City Council's water supply reliability goal of 90 percent water availability during a severe drought. This goal could not be met through conservation and recycling alone. The CMWD's current UWMP. approved in 2005 and referenced herein, projects that in the year 2020 the City of Carlsbad will have 102.536 residents in the CMWD Service Area, an increase of almost 22.000 people from the 2005 Service Area population estimate. The projected water demand for the Service Area in 2020 is 28,907 acre feet (AF} per year. The UWMP has projected that 1.945 AF. or approximately 7% of the demand, will be met by conservation, a 500 AF increase over 2005 projected conservation savings. Further, recycled water is estimated to constitute 6,300 AF, or 21%, of CMWD water demand in 2020. This represents a 6% increase over recycled water supplies in 2020 estimated by the 2000 UWMP. As an alternative to use of desalinated water for the 72% of the City's water needs that would not be supplied by conservation (7%) and recycled water (21%) in 2020. certain commentors have claimed that it is possible for the City to increase conservation or use of recycled water in a manner which eliminates the need for desalinated water from the desalination facility. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 25 The Recycled Water Only Alternative would involve a situation where the City of Carlsbad would not utilize any external source of potable water. Under this scenario, the residents and businesses in the City would reduce their consumption of water, and only utilize water which is recycled from the City's wastewater system. The current water supply projection for 2020 — 21% recycled water and 7% conservation - would increase by some combination to 100% under this alternative. A variety of different combination of conservation and use of recycled water could be imagined under this alternative. With this alternative, there would be no need for the desalination facility. The significant effects of the desalination facility related to air quality and growth inducement would be avoided. Under the Recycled Water Only and Increased Conservation/Recycled Water alternatives, the City would implement more aggressive conservation measures that go beyond current BMPs as a means to meet future water demands. The City would more aggressively apply BMPs going beyond what is locally cost-effective and implement new restrictions on water use, such as limitations on residential landscape irrigating, washing vehicles, irrigating golf courses and parks and other uses, and have appropriate penalties for failure to comply with restrictions. To more aggressively implement conservation measures beyond the current industry standard, the City would have to implement non-cost-effective BMPs, non-proven potential BMPs. and would have to enforce restrictions that could harm the City's economy and result in a drastic change in life styles. Even with the aggressive conservation measures the City has taken, coupled with planned future conservation projects, the savings would not be sufficient to offset the estimated demand forecast for 2020. The Recycled Water Only Alternative appears to be infeasible as it does not take into account water loss and replacement. Inevitably, some water will be lost through evaporation, transportation, leaks, application to soil, and water treatment processes in industrial and public utility uses, such as waste treatment systems. Eventually, this lost water will require replacement from another water source "outside" the recycled water system. Accordingly, an argument could be made that this replacement could come from sources other than imported and desalinated water, such as stormwater. However, the City has no way of capturing stormwater for use as a potable supply as the City does not have any stormwater impoundment reservoirs. No community in the world has achieved the level of recycling and conservation presented in the Recycled Water Only Alternative. Furthermore, the California ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 26 Department of Health Services has health based restrictions on the use of recycled water which prevent its use as a complete replacement for potable water. In addition, the general public is unwilling to use recycled water as a complete replacement for water used in cooking, bathing, washing and drinking. The City has also previously analyzed the Increased Conservation/Recycled Water Alternative, whereby the combined level of conservation and recycled water supply would total somewhere between UWMP projections as used as the baseline assumption in this FEIR and a level of 100%, which is the level analyzed in the Recycled Water Only Alternative discussed above. ("The 2000 UWMP estimates 15% of the City's water demand in 2020 would be meet by recycled water: an estimate is not provided for conservation, although the 2000 UMWP discusses conservation, the components to achieve it. and recognizes conservation as a critical part of CMWD's long term water supply needs.) A variety of different combinations of increased use of recycled water and increased conservation are covered within this alternative. Commentors did not describe a specific level of conservation or use of recycled water that they felt the City could achieve. The Increased Conservation/Recycled Water Alternative was not presented as an actual alternative to the proposed project. No matter what level of conservation or recycled water is proposed below 100%, the City and other jurisdictions in San Diego County still face a need for potable water from some source. As a result, this is not a feasible alternative to the proposed project. For example, reaching a theoretical goal of supplying water needs through conservation and use of recycled water to meet 50% of the City's water needs still requires a source of water for the remaining 50% of the water needs. The desalination facility is still needed to supply that remaining 50%, even under this type of Conservation/Recycled Water Alternative. Thus, this Alternative would not eliminate the need for the desalination facility, nor would it eliminate the potential adverse effects of the desalination facility related to a contribution to cumulative air quality or a contribution to regional growth inducement. An Increased Conservation/Recycled Water Alternative would permit the City to purchase less desalinated water from the desalination facility. If Carlsbad were the only customer for the desalination facility, this could result in a reduced capacity desalination facility. The impacts of a Reduced Project Capacity Alternative are analyzed in Section 6.4 of the EIR. As noted in Section 6.4 of the EIR, a Reduced Project Capacity Alternative would reduce but not eliminate the project's contribution to a cumulative air quality and cumulative regional growth inducing impacts. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 27 In summary, the City concludes that the Increased Conservation/Recycled Water Alternative also appears to be infeasible for public policy reasons because it would require a level of conservation and use of recycled water that is unacceptable as a matter of public policy. The City previously determined the maximum acceptable levels of conservation and recycled water use that should be mandated by the City in the approval of the UWMP and the Recycled Water Master Plan, and does not believe these levels can or should be increased for many reasons, as set forth in the record before the City Council when those plans were approved. For example, due to current legal restrictions, recycled water cannot be used for bathing, cooking and other household domestic needs. Current mandated low flow toilets, showerheads and other plumbing fixtures represent the maximum feasible level of conservation from these fixtures, and at this time it is infeasible to mandate fixtures which provide higher levels of conservation. Single family residential households use a large portion of the CMWD water supply. The 2005 UWMP estimates that in 2020, 38% of the total water supply, or 11.013 AF. can be attributed to use by these households. Single family residential water demand includes both indoor and outdoor water usage with 60% of the water usage attributed to outdoor use, primarily for landscaping. Increasing the percentage of water supply available through conservation, above the 7% conservation projection in 2020. would require an equal reduction in demand. While reduction of water demand could occur through use of recycled water for landscape irrigation for single-family residences, this would present concerns. Installing the public infrastructure and retrofitting all single-family residences to enable use of reclaimed water for irrigation purposes would be economically infeasible. Moreover, use of reclaimed water for irrigation by private residences is also discouraged by some county health officials. Further restrictions on outdoor water use, such as a ban on all outdoor water usage, are not acceptable as a matter of public policy. If all outdoor water usage from single family residences were prohibited, for example, a conservation of approximately 6.607 AF of water (60% of 11.013 AF) or 22% of total 2020 demand would be achieved, enhancing the total conservation supply for the City of Carlsbad in 2020 to 29% (7% + 22%). However, among other things, this alternative would require the City of Carlsbad to enact ordinances that allow only non-irrigated landscaping within the City of Carlsbad, and ordinances that ban the use of outdoor irrigation for single family residences. The City of Carlsbad has determined that prohibition of single family residential outdoor irrigation and most outdoor landscaping is not a desired public policy goal of the City of ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 28 Carlsbad, and the City Council does not believe that this action would be in the best interest of the quality of life, or health and well being of the residents of Carlsbad. Lfl Exhibit 2 AMENDMENT TO ADD THE FOLLOWING SECTION 5.5 TO EXHIBIT "EIR-A" CITY OF CARLSBAD RESOLUTION NO. CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDINGS OF FACT (PUBLIC RESOURCES CODE 521081 CEQA GUIDELINES 315091) and STATEMENT OF OVERRIDING CONSIDERATIONS (CEQA GUIDELINES 515093) for the FINAL ENVIRONMENTAL IMPACT REPORT (EIR 03-05) PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT (SCH No. 2004041081) 5.5 Alternatives Considered and Rejected for the Purposes of this EIR 5.5.1 Description Along with the Alternatives identified in this Section 5.0, previous consideration has been given to policy options that are discussed as alternatives that have been considered and rejected as infeasible for the purposes of this EIR. These alternatives include the Recycled Water Only Alternative and Increased Water Conservation/Recycled Water Alternative. These alternatives are not considered to be feasible project alternatives because they require recycling and conservation practices that go beyond what is considered to be acceptable from a public policy perspective. However, based on comments received on the EIR, the City of Carlsbad believes it important to emphasize and clarify past policy decisions relative to water recycling and conservation, and how those water management strategies relate to the proposed project. Section 15126.6(c) of the CEQA Guidelines provides for discussion of any alternatives that were considered by the lead agency but were rejected as infeasible. Under the Recycled Water Only Alternative, the City would not utilize an external source of portable water. Residents and business would reduce their water consumption and would only utilize water recycled from the City's wastewater system. Under the Increased Water Conservation/Recycled Water Alternative, which the City has previously analyzed, the City would increase its level of water conservation and use of recycled water whereby the combined level of conservation and use of recycled water would total somewhere between the figures stated in the City's 2000 Urban Water Management Plan as used as the baseline assumption in the FEIR, and a level of 100%, which is the level analyzed in the Recycled Water Only Alternative described above. In the year 2020, for example, the 2000 UWMP estimates 15% of the City's water demand would be meet by recycled water; an estimate is not provided for conservation, although the 2000 UMWP discusses conservation, the components to achieve it, and recognizes conservation as a critical part of CMWD's long term water supply needs. The update to the 2000 UWMP, approved in 2005 following the release of the FEIR, revises the water supply numbers and notes that in 2020, 21% of the CMWD water supply will be met by recycled water and 7% of the water supply will be met through conservation. 5.5.2 Supporting Explanation The City finds both the Recycled Water Only Alterative and the Increased Water Conservation/Recycled Water Alternative are infeasible for public policy reasons because they would require a level of conservation and use of recycled water that is unacceptable as a matter of public policy (see FEIR Section 6.0). The City previously determined the maximum acceptable levels of conservation and recycled water use that should be mandated by the City in the adoption of the Urban Water Master Plan and the Recycled Water Master Plan, and does not believe these levels can or should be increased for many reasons, as set forth in the record before the City Council when those plans were adopted. CEQA Findings of Fact and Statement of Overriding Considerations EIR 03-05 - PDF and Desalination Plant Amendment to add Section 5.5 2 For example, due to current legal restrictions, recycled water cannot be used for bathing, cooking and other household domestic needs. Current mandated low flow toilets, showerheads and other plumbing fixtures represent the maximum feasible level of conservation from these fixtures, and at this time it is infeasible to mandate fixtures which provide higher levels of conservation. Further, use of recycled water by single family homeowners for irrigation would necessitate installing the public infrastructure and retrofitting all single-family residences to enable use of reclaimed water for irrigation purposes. This likely would prove to be economically infeasible and use of reclaimed water for irrigation by private residences is also discouraged by some county health officials. It would also be infeasible and undesirable to achieve increased conservation through a ban on all outdoor water usage by single family residences. Under this scenario, a conservation of approximately 6,607 AF of water or 22% of total 2020 demand would be achieved, enhancing the total conservation supply for the City of Carlsbad in 2020 to 29% (7% achieved through already projected conservation + 22%). However, the additional 22% of supply conservation would require that no water be used outdoors in single family residential dwellings. Among other things, this alternative would require the City of Carlsbad to enact ordinances that allow only non-irrigated landscaping within the City of Carlsbad, and ordinances that ban the use of outdoor irrigation for single family residences. The City of Carlsbad finds and has determined that prohibition of single family residential outdoor irrigation and most outdoor landscaping is not a desired public policy goal of the City of Carlsbad, and the City Council does not believe that this action would be in the best interest of the quality of life, or health and well being of the residents of Carlsbad. The City also finds that, under the Increased Conservation/Recycled Water Alternative, no matter what level of conservation or recycled water is proposed below 100%, the City and other jurisdictions in San Diego County would still face a need for potable water from some source. As a result, this is not a feasible alternative to the proposed project. For example, reaching a theoretical goal of supplying water needs through conservation and use of recycled water to meet 50% of the City's water needs would still require a source of water for the remaining 50% of the water needs. Thus, this Alternative would not eliminate the need for the desalination facility nor would it eliminate the potential adverse effects of the desalination facility related to a contribution to cumulative air quality or a contribution to regional growth inducement. The City also finds, with regards to the Recycled Water Only Alternative, that it is infeasible as it does not take into water loss and replacement. Inevitably, some water will be lost through evaporation, transportation, leaks, application to soil, and water treatment processes in industrial and public utility uses, such as waste treatment systems. Eventually, this lost water will require replacement from another water source "outside" CEQA Findings of Fact and Statement of Overriding Considerations EIR 03-05 - PDF and Desalination Plant Amendment to add Section 5.5 3 the recycled water system. Accordingly, an argument could be made that this replacement could come from sources other than imported and desalinated water, such as stormwater. However, the City has no way of capturing stormwater for use as a potable supply as the City does not have any stormwater impoundment reservoirs. CEQA Findings of Fact and Statement of Overriding Considerations EIR 03-05 - PDF and Desalination Plant Amendment to add Section 5.5 4 1 RESOLUTION NO. 419 2 A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF 3 CARLSBAD, CALIFORNIA, CERTIFYING 4 ENVIRONMENTAL IMPACT REPORT EIR 03-05, ADOPTING THE CANDIDATE FINDINGS OF FACT, 5 STATEMENT OF OVERRIDING CONSIDERATIONS, AND THE MITIGATION MONITORING AND REPORTING 6 PROGRAM FOR THE PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT, A PORTION OF 7 WHICH IS LOCATED IN THE SOUTH CARLSBAD COASTAL REDEVELOPMENT AREA AND GENERALLY IN 8 THE VICINITY OF AGUA HEDIONDA LAGOON, CANNON Q ROAD, AND THE ENCINA POWER STATION. CASE NAME: PRECISE DEVELOPMENT PLAN AND 10 DESALINATION PLANT CASE NO: EIR 03-05 11 WHEREAS, on May 3, 2006, the Carlsbad Planning Commission, the 12 review body for recommending and processing land use permits proposed in the South Carlsbad Coastal Redevelopment Area, held a duly noticed public hearing to consider a 15 proposed Environmental Impact Report (EIR 03-05) and adopted Planning Commission 16 Resolution No. 6087, recommending to the Housing and Redevelopment Commission 17 certification of EIR 03-05 and adoption of the Candidate Findings of Fact, Statement of 18 Overriding Considerations, and the Mitigation Monitoring and Reporting Program; and in WHEREAS, the Housing and Redevelopment Commission of the City of 20 Carlsbad did on the 13th . day of June . 2006, hold a public hearing to consider the 21 recommendations and heard all persons interested in or opposed to EIR 03-05; and 22 WHEREAS, a Draft Environmental Impact Report was prepared and 23 submitted to the State Clearinghouse and a Notice of Completion filed, published, and 25 mailed to responsible agencies and interested parties providing a 45-day review period; 26 27 28 1 WHEREAS, all comments received during the review period are contained 2 in the Final EIR; and 3 WHEREAS, following publication of the Final EIR and distribution of 4 responses to commenting parties, certain parties continued to submit comments up to 5 and including testimony given at the project's public hearing held by the City of Carlsbad 6 Planning Commission on the project on May 3, 2006; and 7 WHEREAS, in order to address all issues raised by the public on the o 9 proposed project and provide comprehensive disclosure and documentation of JO environmental issues associated with the project, additional responses to comments 11 were prepared and revisions to the Final EIR were made as shown on attached Exhibit 12 1 and as hereby incorporated into the Final EIR for consideration by the Housing and 13 Redevelopment Commission of the City of Carlsbad; and 14 WHEREAS, the additional responses to comments and revisions to the Final EIR necessitated new Findings be added to the Candidate Findings of Fact as 16 shown on attached Exhibit 2 and as hereby incorporated into the Candidate Findings of 17 Fact for consideration by the Housing and Redevelopment Commission of the City of 18 Carlsbad; and 20 WHEREAS, the information contained in the additional responses, 21 revisions to the Final EIR, and new Candidate Findings of Fact does not rise to the level 22 of "significant information" as described in California Environmental Quality Act (CEQA) 23 Guideline 15088.5(a). Instead, the information provided merely clarifies and amplifies discussion already contained in the Final EIR, and provides background information on 25 past policy decisions and direction taken by the City of Carlsbad, primarily with regards 26 to water conservation. As such, recirculation of the Final EIR is not required because 27 28 1 the new information added to the EIR only clarifies, amplifies and makes insignificant 2 modifications to an adequate EIR (CEQA Guideline 15088.5(b)). 3 NOW THEREFORE, BE IT RESOLVED by the Housing and 4 Redevelopment Commission of the City of Carlsbad, California, as follows: 5 1. That the above recitations are true and correct. 6 2. The Housing and Redevelopment Commission does hereby find that the Final EIR 03-05, as modified by Exhibit 1 attached hereto, the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, the Statement of Overriding Considerations, and the Mitigation and Monitoring Program have been prepared in 9 accordance with requirements of the California Environmental Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City of Carlsbad. 10 3. The Housing and Redevelopment Commission has reviewed, analyzed, 11 and considered Final EIR 03-05, as modified by Exhibit 1 attached hereto, the environmental impacts therein identified for this project, the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, the Statement of Overriding Considerations, 13 and the Mitigation and Monitoring Program prior to approving the project, and they reflect the independent judgment of the City of Carlsbad Housing and Redevelopment 14 Commission. 15 4. The Housing and Redevelopment Commission does accept as its own, incorporate as if set forth in full herein, and make each and every one of the findings contained in the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, 17 including feasibility of mitigation measures pursuant to Public Resources Code 21081 and CEQA Guidelines 15091, and infeasibility of project alternatives. 18 5. The Housing and Redevelopment Commission hereby finds that the 19 Mitigation and Monitoring Program is designed to ensure that during project implementation and operation the Developer and any other responsible parties implement the project components and comply with the feasible mitigation measures identified in the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, and the Mitigation and Monitoring Program. 22 6. Although certain significant or potentially significant environmental effects 23 caused by the project will remain, even after the adoption of all feasible mitigation measures and any feasible alternatives, there are specific economic, social, and other considerations that render the unavoidable significant adverse environmental effects acceptable, as set forth in the Statement of Overriding Considerations. 26 7. The Record of Proceedings for this project consists of the Environmental Impact Report, as modified by Exhibit 1 attached hereto, Candidate Findings of Fact, as 27 28 1 modified by Exhibit 2 attached hereto, Statement of Overriding Considerations, and Mitigation and Monitoring Program; the "Record" upon which the Housing and 2 Redevelopment Commission bases these Candidate Findings of Fact and its actions and determinations regarding the project includes, but is not limited to, the Draft EIR, together with all appendices and technical reports referred to therein, whether 4 separately bound or not; all reports, letters, applications, memoranda, maps, or other planning and engineering documents prepared by the City and the Housing & 5 Redevelopment Agency (Agency), planning consultant, environmental consultant, project applicant, or others presented to or before the decision-makers as determined 6 by the City Clerk; all letters, reports, or other documents submitted to the City and the Agency by members of the public or public agencies in connection with the City's 7 environmental analysis on the project; all minutes of any public workshops, meetings, or hearings, including the scoping sessions, and any recorded or verbatim ® transcripts/videotapes thereof; any letters, reports, or other documents or other 9 evidence submitted into the record at any public workshops, meeting, or hearings; matters of common general knowledge to the City and the Agency that the City and the 10 Agency may consider, including applicable State or local laws, ordinances, and policies, the General Plan, Zoning Ordinance, Local Facilities Management Plans, and all 11 applicable planning programs and policies of the City and the Agency; and, all findings and resolutions adopted by the City and the Agency in connection with the project, 12 including all documents cited or referred to therein. 13 The custodian of the full administrative record shall be the City Clerk's Office, 1200 Carlsbad Village Drive, and the Planning Director, 1635 Faraday Avenue, both in 14 Carlsbad, CA 92008. 15 8. That the Environmental Impact Report (EIR 03-05) on the above 16 referenced project, as modified by Exhibit 1 attached hereto, is certified; and that the Candidate Findings of Fact, as modified by Exhibit 2 attached hereto, Statement of 17 Overriding Considerations, and the Mitigation Monitoring and Reporting Program are adopted and that the condition of the Planning Commission contained in Planning 18 Commission Resolution No. 6087, on file with the City Clerk and incorporated herein by ,g reference, is the condition of the Housing and Redevelopment Commission. 20 "NOTICE TO APPLICANT" 21 "The time within which judicial review of this decision must 22 be sought is governed by Code of Civil Procedure, Section 1094.6, which has been made applicable in the City of 23 Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any 24 petition or other paper seeking judicial review must be filed in the appropriate court not later than the ninetieth day 25 following the date on which this decision becomes final; however, if within ten days after the decision becomes final a 26 request for the record of the proceedings accompanied by the required deposit in an amount sufficient to cover the 27 28 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 which such petition may be filed in court is 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 of record, if he has one. A written request for the preparation of the record of proceedings shall be filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, California 92008." PASSED, APPROVED AND ADOPTED at a Special Meeting of the Housing and Redevelopment Commission of the City of Carlsbad on the 13th day of June . 2006, by the following vote, to wit: AYES: Commissioners Lewis, Kulchin, Packard, Sigafoose NOES: None ABSENT: Commissioner Packard ^T^Yy RAYMOND R. PATCHETT, SECRETARY (SEAL) ^"''""//,4?—% £o/ESTABLISHED \tiv . ; ?s » Exhibit 1 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR-03-05 FOR THE PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT SCH #2004041081 June 13, 2006 1.0 INTRODUCTION The Final EIR for the Precise Development Plan and Desalination Plant project contains a comprehensive disclosure and analysis of potential environmental effects associated with the implementation of the Precise Development Plan and Desalination Plant project. In addition, the Final EIR contains responses to public comments received during the public review period held on the Draft EIR. Following publication of the Final EIR and distribution of responses to commenting parties, certain parties continued to submit comments up to and including testimony given at the project's public hearing held by the City of Carlsbad Planning Commission on the project on May 3, 2006. In order to address all issues raised by the public on the proposed project and provide comprehensive disclosure and documentation of environmental issues associated with the project, the following additional responses to comments are provided and are hereby incorporated into the Final EIR for consideration by the Carlsbad City Council. A review of the materials submitted to the City and of the draft minutes of the May 3, 2006, Planning Commission Hearing, identified two primary issues that would benefit from additional clarification: 1) Operation of the desalination plant independent of the Encina Power Station (EPS); and, 2) Water conservation as an "alternative" to the proposed project. 2.0 BACKGROUND Issue 1: Operation of the Desalination Plant as a stand alone facility - separate from the EPS The description of baseline conditions and the basis for the analysis in the Final EIR assumes the continued operation of the Encina Power Station (EPS) within the parameters of its historical operating conditions. This approach is based on a determination by the City that such a baseline condition reflects reasonably foreseeable circumstances, and therefore appropriately characterizes existing baseline conditions, in accordance with guidance provided by CEQA. Moreover, all relevant city permits 50 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 2 specify that if the desalination plant were to operate independently, Poseidon or its successors would have to obtain new permits and undergo new CEQA compliance. Certain public comments received on the EIR reflect different opinions on what is considered to be "reasonable" relative to assumptions for the continued operation of the EPS. Certain commentors asserted that shut-down of the EPS is relatively certain within the foreseeable future. These commentors further assert that the EIR analysis should take into account operation of the desalination plant under a scenario in which the EPS is no longer operating. While as noted above, the City believes it is reasonably foreseeable that EPS will continue to operate, the EIR does contain information that analyzes operation of the desalination plant in the absence of EPS operation. The following summary and clarification is provided to demonstrate more clearly that even if the EPS were to shut down permanently or for extended periods of time, the analysis and conclusions of the Final EIR are still accurate and valid. Issue 2: Water Conservation as an "Alternative" to the Proposed Project Comments received as a result of review of the Draft EIR suggest that additional or more aggressive water conservation efforts than are now being employed within the City of Carlsbad and the region could eliminate the need for the proposed project and should be addressed as an alternative to the proposed project. The EIR contains a discussion of water conservation efforts and how they relate to the proposed project, and in addition makes reference to the County Water Authority's Regional Water Facilities Master Plan, which also includes consideration of water conservation efforts relative to regional water supply. However, the information presented in these additional responses provides additional clarification and amplification on this issue. 3.0 CEQA REQUIREMENTS CEQA Guideline Section 15088.5 states that, where the Final EIR has not yet been certified, recirculation for public review is not required unless "significant new information" is added to the document (CEQA Guideline, § 15088.5, subds. [a], [b]). "Significant new information" requiring recirculation includes, for example, a disclosure showing that: (1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented. (2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance. 5 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 3 (3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project's proponents decline to adopt it. (4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. None of these conditions exist with respect to the information contained in these additional responses and revisions to the Final EIR. Instead, the information provided merely clarifies and amplifies discussion already contained in the EIR, and provides background information on past policy decisions direction taken by the Carlsbad City Council. This information does not identify any new significant environmental effects, nor does it identify any increase in a previously identified significant effect. Further, information provided on project alternatives does not reveal a new alternative that could feasibly reduce any of the identified significant effects of the project. Therefore, recirculation is not required because the new information added to the EIR only clarifies, amplifies and makes insignificant modifications to an adequate EIR (CEQA Guideline, 15088.5, subd. (b)). 4.0 DISCUSSION Issue 1: Operation of the Desalination Plant as a stand alone facility - separate from the EPS The Lead Agency and the Applicant have analyzed the impacts of the project with and without the operations of the Encina Power Station (EPS). This information is included in the Final EIR and Appendix E thereto. The resource areas potentially impacted under the "No Power Plant Operation" scenario are (1) Aesthetics; (2) Air Quality (3) Marine Biology - brine discharge; (4) Marine Biology - entrainment/impingement; and (5) Land Use. The baseline used by the lead agency for measuring potential environmental impacts of the project under CEQA is the current physical environment ("With Power Plant Operation" scenario), including current operating conditions. However, the worst case scenario in the Final EIR analyzed the No Power Plant Operation scenario to determine the level of significance in the "historical extreme." The Final EIR contains substantial evidence that shows that the impacts from a No Power Plant Operation scenario to have the same level of significance as the With Power Plant Operation scenario for all of the impact areas. 52- ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 4 To provide further clarification on the analysis provided for the No Power Plant Operation scenario, Section 3 of the Final EIR has been revised, and the excerpted text edits are included in Section 5.0 of these Additional Responses. Aesthetics - The significance criteria (section 4.1.3) for Aesthetics in the Final EIR do not take into consideration the surrounding land uses when assessing visual impacts and thus the significance analysis will not change with or without the power plant in operation. Section 4.1.4 - Impacts - states that, "the project is not considered to have a substantial adverse effect on a scenic vista, or a substantially damaging effect on scenic resources because the proposed structure would represent a visual enhancement over what is currently located on the site (Page 4.1-3)." This enhancement of the area would occur with or without the operation of the EPS. Mitigation measures are proposed so that the project features are acceptable to the City of Carlsbad and conform to the City's long- term vision for the surrounding property, which includes relocation of the power plant to the back of the property and the transition of the front of the property to more public uses. In June of 2002 the Carlsbad City Council, and in October of 2002 the Carlsbad Housing and Redevelopment Agency, adopted six principals to pursue negotiations for the purchase of water from Poseidon: 1. Improved water reliability and quality in both normal and drought periods at CWA [County Water Authority] water rates. 2. Maximize beach and lagoon access for the public. 3. Maximize open space and recreational opportunities for the public. 4. Redevelop Encina Power Plant to maximize its best public and private uses. 5. Desalination facility protected from power market fluctuations. 6. Accrue a positive economic benefit from the increased industrial development of the coastal corridor. These principals were used to evaluate the project in addition to the Strategic Goals and 5-Year Vision Statements approved by the City Council. The project was found to be consistent with goal number 4 shown above (see pages 4.8-16 - 4.8.18 of the Final EIR), and would therefore not interfere with any future change in operation at the EPS. Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify aesthetic effects. Air Quality. The potential indirect air quality impacts due to emissions from power generation for the desalination facility are analyzed in the Final EIR with and without the EPS as the source of power. (See page 4.2-18 of the Final EIR). The Final EIR (page 4.2-18) notes that "the desalination plant will not contain any electrical power generation facilities, and will purchase this electrical power from the local electric utility, or a power generator, broker or seller. At this time no contract has been signed for power purchases from any supplier." Because no supplier of electricity has been designated, the Final EIR ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 PageS analyzed the indirect emission impacts from power generation for three different scenarios: (1) if power were purchased from EPS; (2) the local utility; (3) or another power provider. The second and third scenario analyzed the No Power Plant Operation scenario impacts studied in the Final EIR, and therefore there would be no change in the Final EIR significance findings if EPS were not operational. Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify air quality effects. Marine Biology Brine. The Final EIR for the desalination plant used the "historical extreme" operation and level of salinity to evaluate the impacts to the marine environment. In Section 4.3, Biological Resources, the Final EIR notes on page 4.3-44 that, "the EPS can run with an "unheated discharge" (i.e., no power plant operation)." The Final EIR modeled impacts of unheated "historical extreme" for flow scenarios using a discharge of 254 million gallons per day, which would represent conditions under the No Power Plant Operation scenario. Therefore the "historical extreme" conditions modeled account for impacts related to operation of the desalination facility without power plant operation and flow rates that would be generated by the desalination plant being operated independently. On page 4.3-45, the Final EIR notes that in the "historical extreme" the "highest bottom salinities were noted with the 'unheated' [i.e., No Power Plant Operation scenario] condition due to its reduced buoyancy." Again on that page, the Final EIR states that, "...to determine worst-case conditions, the unheated conditions are examined." Therefore the No Power Plant Operation scenario is the worst case condition studied by the Final EIR. The Analysis of Significance - Elevated Salinity Exposure Effects section of the Final EIR (page 4.3-50) indicates that significant impacts are found at an extended salinity exposure level of 40 parts per thousand (ppt). The Final EIR (page 4.3-50) indicates that under the "historical extreme" the end of pipe salinity of 40.1 ppt "...is diluted across the ZID [zone of initial dilution] to about 38.2 ppt..." Also on page 4.3-50, the Final EIR concludes that "extended exposure to salinity levels above 40 ppt would be avoided under all proposed operating conditions (emphasis added)." The Final EIR (page 4.3-51) goes on to conclude that "since the 'historical extreme' scenarios under all operating conditions would not result in salinity levels exceeding this threshold for an extended period of time, impacts related to elevated salinities would not be significant (emphasis added)." Therefore the No Power Plant Operation scenario, or "unheated discharge" condition has been analyzed in the Final EIR and the impacts from brine discharge in this worst-case scenario were found to be less than significant. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 6 Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify effects of brine discharge on marine organisms. Marine Biology Entrainment. Data presented in Appendix E of the Final EIR (see Carlsbad Desalination Facility Intake Effects Assessment (draft), dated March 3, 2005, and prepared by Tenera Enviromental) supports a finding of no significant impact for entrainment. The referenced study demonstrates that entrainment of marine organisms at the EPS is a function of the volume of water flowing through the intake. If the desalination facility were to operate at 106 million gallons per day (MGD) under the No Power Plant Operation scenario, there would be 100% mortality resulting from impingement of the larval fish caught on the desalination plant screens and filters (106 MGD represents a total maximum withdrawal volume, which represents a worst case volume, as compared to the average withdrawal volume of 104 MGD). As shown in Table 1, the entrainment loss would represent between 0.6% and 11.8% of the EPS source water supply of larvae, depending on the fish group modeled. Assuming an additional 200 MGD was allowed to flow through the intake to the discharge channel for dilution of the concentrated seawater discharge from the desalination facility, there could be additional entrainment losses. The level of impact to the organisms and associated mortality due to the diversion of the dilution water under the No Power Plant Operation scenario will be less than the impact had the water been pumped through the condensers as is modeled under the With Power Plant Operation scenario. However, lacking data to document actual mortality under the No Power Plant Operation scenario mode of operation, the possible range is 0% to 100% mortality of the larval fish in the dilution water. Under these conditions the minimum larval fish entrainment loss for the desalination facility (106 MGD) and associated dilution water (200 MGD) would be 0.6% to 11.8% and the maximum would be 1.7% to 34.1%, depending on the design of the facility and species modeled. (Table 1). Table 1 Desalination Facility's Estimated Entrainment Loss Under No Power Plant Operation Fish Group CIQ gobies Desalination Facility Entrainment Loss 11.8% Dilution Water Entrainment Loss 0%-22.3% Minimum Combined Entrainment Loss 11.8% Maximum Combined Entrainment Loss 34.1% ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page? Combtoothblennies 5.7% 0%-10.8% 5.7% 16.5% Northern anchovy 0.6% 0%-1.1% 0.6% 1.7% Significance of Entrainment Losses. The loss of larval fish entrained by the EPS cooling water flows, whether the EPS is operating or not, are a small fraction of marine organisms from the abundant and ubiquitous near-shore source water populations. Using standard fisheries models for adult fishes, the loss of larvae (99 percent of which are lost to natural mortality) due to the desalination facility entrainment at 306 MGD would have no effect on the species' ability to sustain their populations, including the gobies at 34.1%. As noted in Table 1 above, gobies are not substantially impacted because of their widespread distribution and high reproductive potential due to spawning several times a year and are able to sustain conditional larval stage mortality rates of 34% and higher without a decline in adult population level. This absence of population level effects for adult gobies is especially true for the species' early larval stages. The sheer numbers of larvae that are produced by the adult gobies are resistant to the effects of both natural mortality and reasonably high levels of conditional mortality. The most frequently entrained species are very abundant in the area of EPS intake, Agua Hedionda Lagoon, and the Southern California Bight so that the actual ecological effects due to any additional entrainment from the project at either level of plant operations are insignificant. Species of direct recreational and commercial value constitute a very small fraction (less than 1 percent) of the entrained organisms. Therefore, the operation of the desalination facility does not cause a significant ecological impact. California Department of Fish and Game (2002) in their Nearshore Fishery Management Plan provides for sustainable populations with harvests of up to 60 percent of unfished adult stocks. The incremental entrainment ("harvest") effect of larval fishes from the desalination facilities operations at 106 or 306 MGD is approximately 1 to 34 percent (depending on the species); losses that would have no significant effect on the source water populations to sustain themselves. Additionally, entrainment mortality losses are not harvests in the common sense, because the larval fish are not removed from the ocean, but are returned to supply the ocean's food webs - the natural fate of at least 99 percent of larvae whether entrained or not. Generally less than one percent of all fish larvae become reproductive adults. Revisions to the Final EIR text have been made to provide additional clarification on entrainment effects under the No Power Plant Operation scenario. Excerpts of the revised text are included in Section 5.0 of these Additional Responses. Marine Biology Impingement. The Applicant has calculated the approach velocity of the water flowing through the EPS intake under the No Power Plant Operation scenario and determined that the velocity would not exceed 0.5 feet per second. Under these ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 PageS operating conditions, the intake would meet impingement mortality performance standards established in the revised 316(b) permitting requirements. Revisions to the Final EIR text have been made to provide additional clarification on impingement effects under the No Power Plant Operation scenario. Excerpts of the revised text are included in Section 5.0 of these Additional Responses. Land Use - The proposed project causes no significant impacts to land use and is consistent with existing land use plans with or without the existence and operation of the EPS. The project is consistent with the Public Utilities (U) land use designation in the General Plan and Zoning Ordinance and is consistent regardless of power plant operations. In addition the project is consistent with the South Carlsbad Coastal Redevelopment Plan for the area and would continue to be consistent regardless of the operation of the power plant. The Final EIR (page 4.8-16) notes that, "The site of the desalination plant was specifically selected so as not to conflict with two redevelopment plan goals. The first goal relates to facilitating the conversion and possible relocation of the existing power plant to a smaller more efficient facility. The second goal relates to the enhancement of commercial and recreational opportunities in the plan area." Although any changes in the power plant configuration will require additional environmental review and approval, a siting study was conducted for the desalination plant in which five sites within the EPS property were reviewed to find a location for the desalination facility that was sensitive to the redevelopment plan goal and would "create the least amount of constraints on any future conversion of the Encina Power Station." (See pages 4.8-16 - 4.8.18 of the Final EIR for details.) Therefore any future changes to the EPS will not be affected by the siting of the desalination plant. Based on the clarification provided in this response, no revisions to the Final EIR text are considered to be necessary to further clarify land use effects Issue 2: Water Conservation/Recycled Water Only and Increased Conservation/Recycled Water as "Alternatives" to the Proposed Project As discussed in Section 9 of the Final EIR (pages 9-1 to 9-7), a baseline assumption incorporated in the Final EIR analysis is that the water conservation and water recycling elements included in Carlsb ad Municipal Water District's 2000 Urban Water Management Plan (UWMP) and San Diego County Water Authority's 2004 Regional Water Facilities Master Plan (RWFMP) will be fully implemented. However, even with the targeted conservation and recycling in place, both the San Diego County Water Authority (CWA) and Carlsbad Municipal Water District (CMWD) identified a need for ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 9 additional local water in an amount equal to or greater than the project capacity. The update to the 2000 UWMP, approved in December 2005, continues to identify that need. The RWFMP projected that in 2002, approximately 13,700 acre-feet of recycled water was used within CWA's service area annually. This number is projected to increase to over 53,000 acre feet per year by 2020. As noted in the Final EIR, while conservation is not technically a water supply "source", it is also an important strategy employed within the region to reduce demand for water supply. Water conservation programs are maintained by MWD, CWA and local water agencies. Even though the Final EIR references the role of conservation and recycling in local and regional water supply management and the policy direction that has been pursued relative to water conservation and recycling, certain commenting parties indicated that additional conservation/recycling should be considered as a project alternative. A discussion of water conservation and recycling efforts is provided in the Final EIR to further clarify how conservation was a consideration that helped shape policy that relates to the proposed project. Specifically, consideration of water conservation and recycling as alternatives to the proposed project has been given in past policy making. However, the level of water conservation and recycling necessary to replace the need for the proposed project has been rejected as alternatives to the project primarily for public policy reasons that are further explained in the Final EIR. Section 15126.6(c) of the CEQA Guidelines provides for discussion of any alternatives that were considered by the lead agency but were rejected as infeasible. Additionally, Section 15132(e) states that a Final Environmental Impact Report may consist of "any other information added by the Lead Agency." Staff has included revisions to the Final EIR text to provide additional clarification on the rationale for rejection of alternatives to the proposed project that involve additional conservation and/or recycling. The revised text is included in Section 5.0 of these Additional Responses. 5.0 FINAL EIR TEXT EDITS The following are excerpts of portions of text from the EIR that have been revised as a result of these Additional Responses. Revisions that have been made as a result of these Additional Responses are noted in strike-through (deletions) and underline (additions) text. The following text replaces text that appears in Section 3.3 of the EIR (Starting on Page 3-14, under the Subheading "Power Plant Baseline Operating Conditions"): Power Plant Baseline Operating Conditions ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 10 The PDF will not modify the Encina power plant's permitted operating capacity. However, the following information is provided to accomplish the City's objective of establishing baseline conditions for identifying existing facilities and operations on site for the purpose of increasing knowledge and understanding about station operation and onsite facilities. It should be noted this project does not include any modifications that would affect the power plant's operating capacity. Power generation capacity, as described in the NPDES Permit, is provided by a total of six power generator units1: • Unit 1-107 megawatts (MW) • Unit 2-104 MW • Unit 3-110 MW • Unit 4 - 287 MW • Unit 5-315 MW • Gas Turbine-16 MW All of these generating units have been designated as "Reliability Must Run" (RMR) by fythe ISO. The RMR Generation designation represents the minimum generation (number of units or MW output) required by the ISO to be available to maintain system reliability. At full production output, the Encina power plant has the capability to directly or indirectly serve roughly half of the power demand for San Diego County. Units 1 through 5 are steam turbine generators, each with its own boiler that generates heat up to 1005 degrees Fahrenheit. Purified water runs through the boilers turning to high-pressure steam that is used to spin the turbines to generate electricity. The plant relies on seawater to cool and condense the steam after its energy is expended spinning the turbine. Seawater flows into the Agua Hedionda Lagoon through the jetty west of Carlsbad Boulevard into the outer lagoon and into an intake channel located at the southwestern end of the lagoon. The seawater is then pumped into condensers to condense the steam on a non-contact heat transfer basis, and then is returned to the ocean via a discharge channel located to the south of the lagoon's confluence with the ocean. The power plant cooling water discharge is regulated under a National Pollutant Discharge Elimination System (NPDES) permit, issued with the Regional Water Quality Control Board. The plant is currently permitted to discharge a maximum of 1 NPDES Permit, Order No. 2003-03, Regional Water Quality Control Board, February 16, 2000.2 California Independent System Operator website: www.caiso.com, accessed July 29,2004. 6°\ ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 11 approximately 860 million gallons per day (mgd) of cooling water. For purposes of this analysis, data for power plant operation includes records dating from 1980 to 2000. The generators identified above were phased in from the plant's initial construction in 1952 through 1978. Therefore, the dataset used in the EIR analysis represents operation of all production units, and is considered to provide data representing the current operational characteristics from which to analyze existing baseline conditions. With that being said however, the analysis of effects associated with seawater intake and discharge are evaluated based on conditions that represent two separate scenarios, with and without operation of the EPS. The average cooling water discharge rate over the 20-year period was 576 mgd. Daily average flow rates have not fallen below 304 mgd in the 20-year dataset. As noted in the analysis presented in Section 5 of this EIR, the 304 mgd flow rate is used as the worst case operating condition, under the assumption that the discharge is "unheated". which therefore represents conditions without operation of the EPS. For purposes of this discussion, this scenario is referenced as the "No Power Plant Operation" scenario. The following text replaces text that appears in Section 4.3.4 of the EIR (Starting on Page 4.3-35, under the Subheading "Impingement Effect"): Impingement Effect • The desalination plant operation does not require the power plant to increase the quantity of water withdrawn nor does it increase the velocity of the water withdrawn. • The Carlsbad Desalination Plant will not have a separate direct lagoon or ocean intake and screening facilities, and will only use cooling water that is already screened by the EPS intake. • Under the No Power Plant Operation scenario, approach velocity of the water flowing through the EPS intake would not exceed 0.5 feet per second. Under these operating conditions, the intake would meet impingement mortality performance standards established in the revised 316(b) permitting requirements. • Therefore, the Carlsbad Desalination Plant will not cause any additional impingement losses to the marine organisms impinged by the EPS, under the assumed baseline EPS operating conditions, and would not result in significant impingement effects under the No Power Plant Operation scenario. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 12 The following text replaces text that appears in Section 4.3.4 of the EIR (Starting on Page 4.3-36, under the Subheading "Entrainment Losses"): Entrainment Losses • Based on in-plant testing, the average observed entrainment mortality of the power plant was 97.6 percent (2.4 percent survival). Living fish larvae entrained by the Carlsbad desalination plant would represent an incremental loss of approximately 0.01 to 0.28 percent of the larvae present in the power plant source water, assuming continued operation of the EPS. Under the No Power Plant Operation scenario, living fish larvae entrained by the Carlsbad desalination plant would represent a loss of approximately 0.6% to 34.1% of the source populations, depending on the final design of the desalination facility and on the species. The cooling water intake structure is part of the EPS existing operations and is presently regulated under Section 316(b). The desalination plant feedwater withdrawal does not include a cooling water intake structure. Therefore, it is not subject to intake regulation under the Federal Clean Water Act (CWA) Section 316(b). However, since the desalination plant will withdraw intake seawater from the EPS discharge flow, the study was conducted consistent with the intent of Section 316(b), which requires that baseline conditions be established. The desalination plant feedwater intake will not increase the volume, nor the velocity of tho EPS cooling water intake nor will it increase the number of organisms entrained or impinged by the EPS cooling water intake structure. Therefore, the project would not result in any additional impingement effects of the EPS and therefore, impingement effects are not considered as significant impacts attributable to desalination plant operations.For purposes of this analysis, baseline conditions reflect quantities of larvae present in the sewater intake, regardless of whether the EPS is in operation or not. Study Methodology: The study required an assessment of both the source water for the EPS (lagoon and ocean) and the discharge from the EPS (the desalination plant's feedwater supply). The source water was analyzed to establish population characteristics (relative abundance) for species potentially impacted by the desalination plant. The desalination plant feedwater was characterized to determine the baseline conditions for potential impacts associated with the desalination facility. Specifically, the feedwater characterization examined the type and quantity of organisms that survive entrainment through the EPS cooling water intake structure that could subsequently be impacted by the desalination plant operations. (01 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 13 The EPS source water was partitioned into lagoon and nearshore ocean areas for modeling purposes; ten sampling stations were chosen so that all source water community types would be represented, including five lagoon stations and five nearshore stations. Samples were also collected from EPS's discharge (desalination plant feedwater supply) just before the water flows into the power station's discharge pond. Laboratory processing for both the feedwater and source water consisted of sorting (removing), identifying, and enumerating all larval fishes, pre-adult larval stages of Cancer spp. crabs, and California spiny lobster larvae from the samples. Identification of larval fishes was done to the lowest taxonomic level practicable. Source Water Larval Abundance Estimates: Data collected from three source water surveys conducted on June 10, June 24, and July 6, 2004, included a total of 27,029 larval fishes, with 4,750 specimens collected from the five nearshore stations and the remaining 22,279 specimens from the lagoon stations. Two taxa comprised 84 percent of the total number of larval fishes collected from all surveys and source water stations combined: three species from the goby family (Clevelandia ios, Ilypnus gilberti, Quietula y-caudd) hereinafter referred to as CIQ gobies comprised 65 percent and combtooth blennies (Hypsoblennius spp.) comprised 19 percent. In addition, four species of target invertebrates were collected in the samples from both the lagoon and nearshore sampling stations: California spiny lobster (Panulirus interruptus, 93 specimens), yellow rock crab (Cancer anthonyi, 31 specirriens), brown rock crab (Cancer antennarius, 4 specimens), and slender crab (Cancer gracilis, 2 specimens). The mean concentration of CIQ goby larvae from all source water stations and surveys combined was approximately 4,900/1,000 m3 and the mean concentration of combtooth blennies was approximately 1,200/1,000 m3. Feedwater (EPS Discharge) Larval Abundance Estimates: A total of 1,648 fish larvae was collected during two surveys of the EPS discharge water conducted on June 16 and July 6, 2004 (Table 4.3-3). Four taxa comprised 95 percent of all of fish larvae in the EPS discharge flows from which the proposed desalination plant would withdraw its feedwater supply. They were combtooth blennies, CIQ gobies, labrisomid kelpfishes (Labrisomidae unid.), and garibaldi (Hypsypops rubicundus). Gobies and blennies combined accounted for nearly 72 percent of the larvae identified in the feedwater. No target invertebrate larvae were found in any of the samples from the EPS discharge. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 14 TABLE 4.3-3 Total Counts and Mean Concentrations of Larval Fishes from EPS Discharge Mean Concentration Taxon Common Name Total Count Percent Cum. Percent (#/1 ,000m3) Hypsoblennius spp. CIQ gobies Labrisomidae unid. Hypsypops rubicundus Rimicola spp. Gibbonsia spp. Engraulidae Gobiesocidae unid. Sciaenidae Blennioidei Atherinopsidae larval/post-larval fish unid. Heterostichus rostratus Syngnathus spp. Paralichthys califomicus Chaenopsidae unid. Labridae larvae, unidentified yolksac Typhlogobius californiensis Agonidae unid. combtooth blennies CIQ goby complex labrisomid kelpfishes garibaldi kelp clingfishes clinid kelpfishes anchovies clingfishes croakers Blennies Silversides giant kelpfish Pipefishes California halibut Clinids Wrasses blind goby Poachers 766 426 205 174 13 12 12 8 8 7 6 3 1 1 1 1 1 1 1 1 46.48% 25.85% 12.44% 10.56% 0.79% 0.73% 0.73% 0.49% 0.49% 0.42% 0.36% 0.18% 0.06% 0.06% 0.06% 0.06% 0.06% 0.06% 0.06% 0.06% 46.48% 72.33% 84.77% 95.33% 96.12% 96.84% 97.57% 98.06% 98.54% 98.97% 99.33% 99.51% 99.58% 99.64% 99.70% 99.76% 99.82% 99.88% 99.94% 100.00% 1,119.89 630.94 291.66 230.14 17.54 16.38 15.83 10.15 11.38 9.21 7.36 3.50 1.14 0.92 1.28 0.92 1.28 2.45 1.96 2.19 Total 1,648 Feedwater Larval Survival Results: Eleven surveys to estimate the survival of larval fishes in the EPS discharge flow were conducted from June through November 2004. A total of 1,989 fishes was collected from the eleven surveys (Table 4.3-4). Larvae that were alive immediately after collection were placed in separate containers and observed for up to three hours after collection. Approximately half of the larvae continued swimming for up to two hours after collection while the others died between 0.5-1.5 hours after collection. The species of larvae that survived entrainment and sampling were CIQ gobies, combtooth blennies, and unidentified clingfishes. The highest concentration of larval fishes (2,444/1,000 m3) was collected July 6, 2004, and the lowest concentration (93/1,000 m3) was collected on October 21, 2004. 4)3 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 15 The average survey percent survival ranged from 0 percent (November 2 survey) to 9.2 percent (November 30 survey) (Table 4.3-4). The overall average percent survival based on an average of survival data from each sample containing fish (n=223 out of a 291 total surveys) is 2.40 percent with a standard deviation of 11.22. The average percent survival based on each survey's (n=ll) average survival data is 2.71 with a standard deviation of 11.24 among survival averages for the 11 surveys. The surviving larvae that enter the desalination plant will be retained on the pretreatment filters, which could be either granular media facilities or membrane filters. The retained organisms will be removed from the pretreatment filters with the filter media backwash. TABLE 4.3-4 Summary Of Larval Fish Data Collected During In-Plant Survival Studies From EPS Discharge Flows During June Through November 2004. Average Larval Fish Average % Number of Total Volume Date Collected Samples1 Filtered (m3) Concentration (#/1,000 m3) Total # Total # Alive Survival per per Survey2 (s.d. in parenthesis) Larvae upon Collected Collection Survey3 (s.d. in parenthesis) 6/16/2004 7/06/2004 7/20/2004 8/13/2004 8/26/2004 8 9 30 30 32 117 112 301 339 284 1,289.4 (754.2) 2,443.8 (875.0) 1,053.3 (674.6) 564.4 (632.9) 415.4 (350.9) 140 276 315 192 112 2 13 7 2 1 1.8 (4.7) 4.3 (4.1) 1.6 (4.0) 0.005 (0.02) 0.6 (3.2) ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 16 9/09/2004 9/23/2004 10/21/2004 11/02/2004 11/18/2004 11/30/2004 31 30 31 30 30 30 342 344 347 257 271 216 2,027.5 (2,246.4) 668.8 (1,134.6) 93.0 (123.9) 182.3 (161.9) 132.9 (166.7) 264.5 (291.6) 590 200 31 47 34 52 4 2 1 0 2 4 0.5 (1.8) 1.2 (5.5) 5.9 (24.3) 0 4.6 (13.8) 9.2 (24.2) 1. The number of samples per survey increased beginning July 20, 2004 when the duration of sampling increased to cover 24- hour periods. 2. The average larval fish concentration per survey was calculated by summing the individual sample concentrations and dividing by the number of samples in each survey. 3. The average percent survival per survey was calculated by summing the individual sample survival percentages and dividing by the number of samples containing fish larvae in each survey. In order to assess any potential effects of the desalination facility feedwater withdrawal on local fishery resources, three taxa were selected: CIQ goby complex, combtooth blennies, and northern anchovy. These taxa were some of the most commonly entrained species in the EPS cooling water intake structure or were species (northern anchovy) that may be of interest to fishery managers. Larvae of species with high value to sport and commercial fisheries such as California halibut were entrained in such low numbers (approximately 0.06 percent of the total number of EPS-entrained larvae) that any effects on source water populations of these species could not be modeled. Entrainment Effects Model: The Empirical Transport Model (ETM) used in the analysis is based on principles used in fishery management. To determine the effects of fishing on a population, a fishery manager needs an estimate of the number of fishes in the population and the number of fishes being removed by the fishery. ETM is recommended and approved by the California Energy Commission (CEC), California Coastal Commission (CCC), Regional Water Quality Control Boards and other regulatory and resources agencies for analyzing impacts to fisheries. This assessment assumes 100 percent mortality of all organisms surviving the EPS upon withdrawal into the desalination facility. The ETM first takes the estimate of daily mortality (also known as Proportional Entrainment (PE)), and expands the estimate over the number of days the larvae from a single cohort, or batch of larvae, would be exposed to entrainment. The ETM thereby predicts regional effects on appropriate adult populations. Finally, the effects of ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 17 entrainment are examined in the context of survival data collected from the EPS discharge. The estimate of daily incremental mortality, or proportional entrainment (PE), was computed as the ratio of the number of larvae in the water withdrawn by the proposed facility to the number of larvae in the surrounding source water. The average concentration of larvae in the feedwater, as noted in Table 4.3-4, was multiplied by desalination facility's maximum feedwater withdrawal volume of 401,254 m3/day (106 mgd). A total maximum withdrawal volume of 106 mgd (as compared to average withdrawal of 104 mgd) was used as a worst case volume, under a scenario where maximum backwash water volumes would be used during a period of maximum RO production. Average concentrations of larval fishes from the source water survey data were multiplied by the volume estimates for each of the water body segments (total of three lagoon and nine nearshore areas) and then combined to estimate the average source water population. The estimated effects of withdrawal for desalination operations on a single cohort of larvae were calculated using the ETM as: PM = 1 — (1 — PE) ratt°", where Pm is the proportional level of mortality resulting from the water withdrawals by the proposed desalination facility. A larval duration of 23 days from hatching to entrainment was calculated from growth rates using the length representing the upper 99th percentile of the length measurements from larval CIQ gobies collected from entrainment samples during 316(b) studies (Tenera 2004). The results of the analysis are contained in Table 4.3-5. Estimates of PE ranged from 0.01 percent for northern anchovy to 0.55 percent for CIQ gobies. TABLE 4.3-5 Estimates of Average Daily Mortality (PE) (Standard Error in parentheses) Feedwater Volume - Maximum Flow Fish Group 401,254 m3/day (106 MGD) CIQ gobies Combtooth blennies 0.55% (2.08) 0.36% (0.87) ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13,2006 Page 18 Northern anchovy 0.01% (0.05) Fish larvae entrained by desalination plant represent an incremental loss of the EPS source water supply of larvae. The average observed entrainment mortality of the EPS was 97.6 percent (2.4 percent survival). Since 97.6 percent of the larvae are dead at the point of the desalination plant intake, the incremental entrainment loss on source water populations is the 2.4 percent survival rate times the desalination plant proportional entrainment for each specific species in the EPS discharge. These incremental effects range from 0.01 percent for northern anchovy to 0.28 percent for CIQ gobies (Table 4.3-6). The incremental mortality assumes 100 percent mortality of all organisms surviving the EPS upon withdrawal into the desalination facility. However, under the No Power Plant Operation scenario, no mortality is attributed to EPS operations and all entrainment effects are assigned to the desalination plant. TABLE 4.3-6 Estimates of Proportional Mortality (Pm) Fish Group Pm based on Maximum Length at Entrainment Desalination Plant Entrainment from EPS Discharge Flow Maximum flow -106 MGD (401,254m3/day) Estimate When Applying The Pm Based on No Power Overall Average Survival Plant Operation Estimate Of 2.4 Percent1 Scenario Incremental Entrainment Loss Desalination Plant Due to Desalination Plant Entrainment with Operations Maximum flow - 306 Maximum flow-106 MGD MGD (401,254m3/day) CIQ gobies Combtooth blennies Northern anchovy 11.8% 5.7% 0.6% 0.28% 0.14% 0.01% 34.1% 16.5 % 1.7% The overall average percent survival (2.4 percent with a standard deviation of 11.22) was based on an average of each sample that contained fish (n=223). bl ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 19 The role of turbulence and temperature and how larvae are affected were not evaluated at the EPS. It is noted that mortality from entrainment through the cooling water intake structure may be primarily due to pressure and turbulence in the water flow, rather than temperature increases resulting from the cooling operation. Since the desalination plant feedwater will be subject to the same turbulence whether or not the EPS is operating, it is reasonable to estimate incremental mortality for the heated and unheated desalination scenarios using the survival data presented in Table 4.3-4 Using those data, and based on typical operation of the EPS, the entrainment loss rate ranges from 0.01 percent to 0.28 percent. If the desalination facility were to operate at 106 million gallons per day (MOD) under the No Power Plant Operation scenario, there would be 100% mortality resulting from impingement of the larval fish caught on the screens and filters. The No Power Plant Operation scenario would increase the flow volume attributable to the desalination plant by an additional 200 MOD for dilution of the concentrated seawater discharge from the desalination facility. The level of impact to the organisms and associated mortality due to the diversion of the dilution water under the No Power Plant Operation scenario will be less than the impact had the water been pumped through the condensers as is modeled under the With Power Plant Operation scenario. However, lacking data to document actual mortality under the No Power Plant Operation scenario, the possible range is 0% to 100% mortality of the larval fish in the dilution water. Under these conditions the minimum larval fish entrainment loss for the desalination facility (106 MOD) and associated dilution water (200 MOD) would be 0.6% to 11.8% and the maximum would be 1.7% to 34.1%. depending on the design of the facility and species modeled. (Table 4.3-6). Although combtooth blennies had higher PE estimates, CIQ gobies had higher estimates of Pm because their larvae were exposed to entrainment for a longer period of time (either from multiple spawnings of one species or from different species spawning at different times). Adult CIQ gobies and combtooth blennies are very common in Agua Hedionda Lagoon habitats and these levels of mortality would not be expected to result in any population-level effects because these fishes are adapted to estuarine environments where large percentages of their larvae are exported into nearshore areas during tidal flushing. Gobies are abundant in the shallow mudflat and eelgrass habitats that are common in Agua Hedionda middle and inner lagoons. A significant proportion of the CIQ goby larvae in the outer lagoon at the point of entrainment likely originated in the inner and middle lagoon segments and would be exported from the lagoon system on the following ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 20 tidal cycle. Adult combtooth blennies are common in outer lagoon habitats including rock jetties, docks, pilings, and aquaculture floats, as well as some sandy areas in the lagoon, which explains the large numbers of the larvae found in the EPS discharge flows. The estimates for northern anchovy are much lower than the other two taxa because they are more common in the nearshore areas than the lagoon. In fact, the estimates for northern anchovy are very conservative because these fish are distributed over a large area and therefore the estimate of their source water population would be much larger than the estimate used in the calculation of PE. Significance of Entrainment Losses: The small proportion of marine organisms lost to entrainment as a result of the desalination plant would not have a substantial effect on the species' ability to sustain their populations because of their widespread distribution and high reproductive potential. The most frequently entrained species are very abundant in the area of EPS intake, Agua Hedionda Lagoon, and the Southern California Bight, and therefore, the actual ecological effects due to any additional entrainment from the desalination plant are less than significant. California Department of Fish and Game (2002) in their Nearshore Fishery Management Plan provides for sustainable populations with harvests of up to 60 percent of unfished adult stocks. The incremental entrainment (or "harvest") effect of larval fishes from the desalination plant operations between 0.01 and 0.28 percent up to 34.1% under the No Power Plant Operation scenario depending on the design of the facility and species modeled. The loss of larval fish entrained by the EPS cooling water flows, whether the EPS is operating or not, are a small fraction of marine organisms from the abundant and ubiquitous near-shore source water populations. Using standard fisheries models for adult fishes, the loss of larvae (99 percent of which are lost to natural mortality) due to the desalination facility entrainment at 306 MGD would have no effect on the species' ability to sustain their populations, including the gobies at 34.1%. Gobies are not substantially impacted because of their widespread distribution and high reproductive potential due to spawning several times a year, are able to sustain conditional larval stage mortality rates of 34% and higher without a decline in adult population level. This absence of population level effects for adult Robies is especially true for the species' early larval stages. The sheer numbers of larvae that are produced by the adult gobies are resistant to effects of both natural mortality and reasonably high levels of conditional mortality. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 21 The most frequently entrained species are very abundant in the area of EPS intake, Agua Hedionda Lagoon, and the Southern California Bight so that the actual ecological effects due to any additional entrainment from the project at either level of plant operations are insignificant. Species of direct recreational and commercial value constitute less than 1 percent of the entrained organisms, and considering the fact that in general, less than one percent of all fish larvae become reproductive adults, the operation of the desalination plant would not result in significant impacts on those species. California Department of Fish and Game (2002) in their Nearshore Fishery Management Plan provides for sustainable populations with harvests of up to 60 percent of unfished adult stocks. The incremental entrainment ("harvest") effect of larval fishes from the desalination facilities operations at 106 or 306 MOD is approximately 1 to 3 4 percent (depending on the species): losses that would have no significant effect on the source water populations to sustain themselves. Additionally, entrainment mortality losses are not harvests in the common sense, because the larval fish are not removed from the ocean, but are returned to supply the ocean's food webs - the natural fate of at least 99 percent of larvae whether entrained or not. Generally less than one percent of all fish larvae become reproductive adults. The following text replaces text that appears in Section 6.0 of the EIR (Starting on Page 6-1): SECTION 6.0 ALTERNATIVES TO THE PROPOSED ACTION In order to fully evaluate proposed projects, CEQA requires that alternatives be discussed. Section 15126.6 of the State CEQA Guidelines requires the discussion of "a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives." The alternatives discussion is intended to "focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives as listed in Section 3.0 of this EIR. The alternatives discussion focuses on the desalination plant aspect of the PDF. The Alternatives discussion in this EIR focuses on four project alternatives: a No Project/No Development Alternative, an Alternative Site Location Alternative, a Modified Intake Design Alternative, and a Reduced Project Capacity Alternative. ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 22 Along with the Alternatives identified in this Section, previous consideration has been given to policy options that are discussed as alternatives that have been considered and rejected for the purposes of this EIR. These alternatives include the Recycled Water Only Alternative and Increased Water Conservation/Recycled Water Alternative. These alternatives are not currently considered to be feasible project alternatives, and for that reason, are not put forward as alternatives that the City Council may select as alternatives actions to project approval. However, based on comments received on the EIR, the City of Carlsbad believes it important to emphasize and clarify past policy decisions relative to water recycling and conservation, and how those water management strategies relate to the proposed project. Alternatives Considered but Rejected as Infeasible Section 15126.6(c) of the CEOA Guidelines provides for discussion of any alternatives that were considered by the lead agency but were rejected as infeasible. The alternatives, identified as the Recycled Water Only Alternative and Increased Water Conservation/Recycled Water Alternative, have been considered in past decision making by the City and both have been determined to be infeasible, because they require recycling and conservation practices that go beyond what is considered to be acceptable from a public policy perspective. The following discussion provides information that explains how water recycling and conservation have and will continue to play an important role in local and regional water management. This discussion is also intended to provide a framework for understanding past policy decisions that limit the extent to which recycling and conservation can be taken without causing unacceptable social and economic effects. Water conservation and recycling has long been a part of local and regional water supply strategies. Conservation and recycling involve social and economic impacts that are given consideration by policy makers in terms of how much these strategies are feasibly able to contribute to reducing and/or satisfying demand. The Department of Water Resources' draft California Water Plan Update 2005 acknowledges that local efforts to conserve and reuse water must continue to be implemented and new water supplies must be developed (including up to 500,000 acre- feet of desalination) to ensure an adequate water supply for California's future. (California Water Plan Highlights, page 15.) Update 2005 states that if recent growth trends continue, water conservation and reuse alone will not be adequate to meet Southern California's future needs. More than 600,000 acre-feet of new supply will be needed to meet the South Coast region's needs by the year 2030. "7 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 23 The San Diego County Water Authority's Regional Water Facilities Master Plan has projected that an additional one million people will be added to the county over the next three decades. To keep up with this growth, it is expected that by 2020 water demands will grow by 107,000 acre feet (AF) over 2005 total projected demands to 813,000 acre feet per year (AFY). The contribution from water conservation efforts account for 54,900 AFY of estimated reduced demand today and is expected to grow by nearly 75% to a potential 93,200 AFY in reduced demand over the next 15 years. The increased demand projection of 107,000 AFY is net of the 93.200 AFY of projected savings due to ongoing and planned water conservation efforts, but still requires additional supply to meet the demands of growth in the region. The City of Carlsbad currently imports 100% of its potable water supply. The City of Carlsbad's pursuit of seawater desalination is in direct response to growing concern over water supply reliability. This concern is driven by several factors, including climate, limited surface and groundwater supplies, expected population growth, and decreasing reliability of imported water resources stemming from the Colorado River 4.4 Plan and QSA, Sacramento-San Joaquin Bay-Delta Accord, and other regional, state and federal water issues. Conservation programs defer or limit the rate of demand for water: however, these programs cannot reliably address the City's long-term water supply needs. The Carlsbad Municipal Water District ("CMWD") considered a variety of actions to improve its water supply reliability, diversify supplies, and reduce dependence on imported water. These actions include a commitment to implement all cost-effective water conservation and recycling opportunities. Today, CMWD has one of the most aggressive conservation and recycling programs in the San Diego region. CMWD is also a signatory to the California Urban Water Conservation Council Memorandum of Understanding ("MOU"). Signatories to the MOU implement 14 Best Management Practices that have received a consensus among water agencies and conservation advocates as the best and most realistic methods to produce significant water savings from conservation. Conservation on a local level is implemented through strategies identified in the Urban Water Management Plan (UWMP). The goals of the City's water conservation program are to: reduce demand for more expensive, imported water: demonstrate continued commitment to the Urban Best Management Practices (BMPs); and to ensure a reliable T2, ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 24 future water supply. The UWMP includes water demand management measures, consisting of: • Best Management Practices / Audits • Low consumption toilets / showerheads / faucets • Leak detection / Metering • Landscape programs / Drought tolerant plantings • Public information / School education • Commercial & Industrial conservation measures • Water waste prohibitions In 1991, Carlsbad adopted a five-phase Recycled Water Master Plan designed to save potable water. The result is that CMWD has the most aggressive water recycling program in the region when measured in terms of percent of supply derived from recycled water. The Recycled Water Master Plan is referenced herein. The implementation of the water conservation and water recycling elements included in CMWD's UWMP are on schedule and are achieving the desired reduction in potable water use. These programs are designed to work in tandem with the proposed seawater desalination project to accomplish the City Council's water supply reliability goal of 90 percent water availability during a severe drought. This goal could not be met through conservation and recycling alone. The CMWD's current UWMP, approved in 2005 and referenced herein, projects that in the year 2020 the City of Carlsbad will have 102.536 residents in the CMWD Service Area, an increase of almost 22.000 people from the 2005 Service Area population estimate. The projected water demand for the Service Area in 2020 is 28.907 acre feet (AF) per year. The UWMP has projected that 1.945 AF. or approximately 7% of the demand, will be met by conservation, a 500 AF increase over 2005 projected conservation savings. Further, recycled water is estimated to constitute 6,300 AF, or 21%, of CMWD water demand in 2020. This represents a 6% increase over recycled water supplies in 2020 estimated by the 2000 UWMP. As an alternative to use of desalinated water for the 72% of the City's water needs that would not be supplied by conservation (7%) and recycled water (21%) in 2020. certain commentors have claimed that it is possible for the City to increase conservation or use of recycled water in a manner which eliminates the need for desalinated water from the desalination facility. -73 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 25 The Recycled Water Only Alternative would involve a situation where the City of Carlsbad would not utilize any external source of potable water. Under this scenario, the residents and businesses in the City would reduce their consumption of water, and only utilize water which is recycled from the City's wastewater system. The current water supply projection for 2020 - 21% recycled water and 7% conservation - would increase by some combination to 100% under this alternative. A variety of different combination of conservation and use of recycled water could be imagined under this alternative. With this alternative, there would be no need for the desalination facility. The significant effects of the desalination facility related to air quality and growth inducement would be avoided. Under the Recycled Water Only and Increased Conservation/Recycled Water alternatives, the City would implement more aggressive conservation measures that go beyond current BMPs as a means to meet future water demands. The City would more aggressively apply BMPs going beyond what is locally cost-effective and implement new restrictions on water use, such as limitations on residential landscape irrigating, washing vehicles, irrigating golf courses and parks and other uses, and have appropriate penalties for failure to comply with restrictions. To more aggressively implement conservation measures beyond the current industry standard, the City would have to implement non-cost-effective BMPs, non-proven potential BMPs, and would have to enforce restrictions that could harm the City's economy and result in a drastic change in life styles. Even with the aggressive conservation measures the City has taken, coupled with planned future conservation projects, the savings would not be sufficient to offset the estimated demand forecast for 2020. The Recycled Water Only Alternative appears to be infeasible as it does not take into account water loss and replacement. Inevitably, some water will be lost through evaporation, transportation, leaks, application to soil, and water treatment processes in industrial and public utility uses, such as waste treatment systems. Eventually, this lost water will require replacement from another water source "outside" the recycled water system. Accordingly, an argument could be made that this replacement could come from sources other than imported and desalinated water, such as stormwater. However, the City has no way of capturing stormwater for use as a potable supply as the City does not have any stormwater impoundment reservoirs. No community in the world has achieved the level of recycling and conservation presented in the Recycled Water Only Alternative. Furthermore, the California ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 26 Department of Health Services has health based restrictions on the use of recycled water which prevent its use as a complete replacement for potable water. In addition, the general public is unwilling to use recycled water as a complete replacement for water used in cooking, bathing, washing and drinking. The City has also previously analyzed the Increased Conservation/Recycled Water Alternative, whereby the combined level of conservation and recycled water supply would total somewhere between UWMP projections as used as the baseline assumption in this FEIR and a level of 100%, which is the level analyzed in the Recycled Water Only Alternative discussed above. (The 2000 UWMP estimates 15% of the City's water demand in 2020 would be meet by recycled water: an estimate is not provided for conservation, although the 2000 UMWP discusses conservation, the components to achieve it, and recognizes conservation as a critical part of CMWD's long term water supply needs.) A variety of different combinations of increased use of recycled water and increased conservation are covered within this alternative. Commentors did not describe a specific level of conservation or use of recycled water that they felt the City could achieve. The Increased Conservation/Recycled Water Alternative was not presented as an actual alternative to the proposed project. No matter what level of conservation or recycled water is proposed below 100%, the City and other jurisdictions in San Diego County still face a need for potable water from some source. As a result, this is not a feasible alternative to the proposed project. For example, reaching a theoretical goal of supplying water needs through conservation and use of recycled water to meet 50% of the City's water needs still requires a source of water for the remaining 50% of the water needs. The desalination facility is still needed to supply that remaining 50%, even under this type of Conservation/Recycled Water Alternative. Thus, this Alternative would not eliminate the need for the desalination facility, nor would it eliminate the potential adverse effects of the desalination facility related to a contribution to cumulative air quality or a contribution to regional growth inducement. An Increased Conservation/Recycled Water Alternative would permit the City to purchase less desalinated water from the desalination facility. If Carlsbad were the only customer for the desalination facility, this could result in a reduced capacity desalination facility. The impacts of a Reduced Project Capacity Alternative are analyzed in Section 6.4 of the EIR. As noted in Section 6.4 of the EIR, a Reduced Project Capacity Alternative would reduce but not eliminate the project's contribution to a cumulative air quality and cumulative regional growth inducing impacts. "16 ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 27 In summary, the City concludes that the Increased Conservation/Recycled Water Alternative also appears to be infeasible for public policy reasons because it would require a level of conservation and use of recycled water that is unacceptable as a matter of public policy. The City previously determined the maximum acceptable levels of conservation and recycled water use that should be mandated by the City in the approval of the UWMP and the Recycled Water Master Plan, and does not believe these levels can or should be increased for many reasons, as set forth in the record before the City Council when those plans were approved. For example, due to current legal restrictions, recycled water cannot be used for bathing, cooking and other household domestic needs. Current mandated low flow toilets, showerheads and other plumbing fixtures represent the maximum feasible level of conservation from these fixtures, and at this time it is infeasible to mandate fixtures which provide higher levels of conservation. Single family residential households use a large portion of the CMWD water supply. The 2005 UWMP estimates that in 2020. 38% of the total water supply, or 11.013 AF. can be attributed to use by these households. Single family residential water demand includes both indoor and outdoor water usage with 60% of the water usage attributed to outdoor use, primarily for landscaping. Increasing the percentage of water supply available through conservation, above the 7% conservation projection in 2020, would require an equal reduction in demand. While reduction of water demand could occur through use of recycled water for landscape irrigation for single-family residences, this would present concerns. Installing the public infrastructure and retrofitting all single-family residences to enable use of reclaimed water for irrigation purposes would be economically infeasible. Moreover, use of reclaimed water for irrigation by private residences is also discouraged by some county health officials. Further restrictions on outdoor water use, such as a ban on all outdoor water usage, are not acceptable as a matter of public policy. If all outdoor water usage from single family residences were prohibited, for example, a conservation of approximately 6,607 AF of water (60% of 11.013 AF) or 22% of total 2020 demand would be achieved, enhancing the total conservation supply for the City of Carlsbad in 2020 to 29% (7% + 22%). However, among other things, this alternative would require the City of Carlsbad to enact ordinances that allow only non-irrigated landscaping within the City of Carlsbad, and ordinances that ban the use of outdoor irrigation for single family residences. The City of Carlsbad has determined that prohibition of single family residential outdoor irrigation and most outdoor landscaping is not a desired public policy goal of the City of ADDITIONAL RESPONSES TO COMMENTS ON THE FINAL EIR 03-05 - PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT PROJECT June 13, 2006 Page 28 Carlsbad, and the City Council does not believe that this action would be in the best interest of the quality of life, or health and well being of the residents of Carlsbad. Exhibit 2 AMENDMENT TO ADD THE FOLLOWING SECTION 5.5 TO EXHIBIT "EIR-A" CITY OF CARLSBAD RESOLUTION NO. CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDINGS OF FACT (PUBLIC RESOURCES CODE 521081 CEQA GUIDELINES 315091) and STATEMENT OF OVERRIDING CONSIDERATIONS (CEQA GUIDELINES 515093) for the FINAL ENVIRONMENTAL IMPACT REPORT (EIR 03-05) PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT (SCH No. 2004041081) 5.5 Alternatives Considered and Rejected for the Purposes of this EIR 5.5.1 Description Along with the Alternatives identified in this Section 5.0, previous consideration has been given to policy options that are discussed as alternatives that have been considered and rejected as infeasible for the purposes of this EIR. These alternatives include the Recycled Water Only Alternative and Increased Water Conservation/Recycled Water Alternative. These alternatives are not considered to be feasible project alternatives because they require recycling and conservation practices that go beyond what is considered to be acceptable from a public policy perspective. However, based on comments received on the EIR, the City of Carlsbad believes it important to emphasize and clarify past policy decisions relative to water recycling and conservation, and how those water management strategies relate to the proposed project. Section 15126.6(c) of the CEQA Guidelines provides for discussion of any alternatives that were considered by the lead agency but were rejected as infeasible. Under the Recycled Water Only Alternative, the City would not utilize an external source of portable water. Residents and business would reduce their water consumption and would only utilize water recycled from the City's wastewater system. Under the Increased Water Conservation/Recycled Water Alternative, which the City has previously analyzed, the City would increase its level of water conservation and use of recycled water whereby the combined level of conservation and use of recycled water would total somewhere between the figures stated in the City's 2000 Urban Water Management Plan as used as the baseline assumption in the FEIR, and a level of 100%, which is the level analyzed in the Recycled Water Only Alternative described above. In the year 2020, for example, the 2000 UWMP estimates 15% of the City's water demand would be meet by recycled water; an estimate is not provided for conservation, although the 2000 UMWP discusses conservation, the components to achieve it, and recognizes conservation as a critical part of CMWD's long term water supply needs. The update to the 2000 UWMP, approved in 2005 following the release of the FEIR, revises the water supply numbers and notes that in 2020, 21% of the CMWD water supply will be met by recycled water and 7% of the water supply will be met through conservation. 5.5.2 Supporting Explanation The City finds both the Recycled Water Only Alterative and the Increased Water Conservation/Recycled Water Alternative are infeasible for public policy reasons because they would require a level of conservation and use of recycled water that is unacceptable as a matter of public policy (see FEIR Section 6.0). The City previously determined the maximum acceptable levels of conservation and recycled water use that should be mandated by the City in the adoption of the Urban Water Master Plan and the Recycled Water Master Plan, and does not believe these levels can or should be increased for many reasons, as set forth in the record before the City Council when those plans were adopted. CEQA Findings of Fact and Statement of Overriding Considerations EIR 03-05 - PDF and Desalination Plant Amendment to add Section 5.5 2 For example, due to current legal restrictions, recycled water cannot be used for bathing, cooking and other household domestic needs. Current mandated low flow toilets, showerheads and other plumbing fixtures represent the maximum feasible level of conservation from these fixtures, and at this time it is infeasible to mandate fixtures which provide higher levels of conservation. Further, use of recycled water by single family homeowners for irrigation would necessitate installing the public infrastructure and retrofitting all single-family residences to enable use of reclaimed water for irrigation purposes. This likely would prove to be economically infeasible and use of reclaimed water for irrigation by private residences is also discouraged by some county health officials. It would also be infeasible and undesirable to achieve increased conservation through a ban on all outdoor water usage by single family residences. Under this scenario, a conservation of approximately 6,607 AF of water or 22% of total 2020 demand would be achieved, enhancing the total conservation supply for the City of Carlsbad in 2020 to 29% (7% achieved through already projected conservation + 22%). However, the additional 22% of supply conservation would require that no water be used outdoors in single family residential dwellings. Among other things, this alternative would require the City of Carlsbad to enact ordinances that allow only non-irrigated landscaping within the City of Carlsbad, and ordinances that ban the use of outdoor irrigation for single family residences. The City of Carlsbad finds and has determined that prohibition of single family residential outdoor irrigation and most outdoor landscaping is not a desired public policy goal of the City of Carlsbad, and the City Council does not believe that this action would be in the best interest of the quality of life, or health and well being of the residents of Carlsbad. The City also finds that, under the Increased Conservation/Recycled Water Alternative, no matter what level of conservation or recycled water is proposed below 100%, the City and other jurisdictions in San Diego County would still face a need for potable water from some source. As a result, this is not a feasible alternative to the proposed project. For example, reaching a theoretical goal of supplying water needs through conservation and use of recycled water to meet 50% of the City's water needs would still require a source of water for the remaining 50% of the water needs. Thus, this Alternative would not eliminate the need for the desalination facility nor would it eliminate the potential adverse effects of the desalination facility related to a contribution to cumulative air quality or a contribution to regional growth inducement. The City also finds, with regards to the Recycled Water Only Alternative, that it is infeasible as it does not take into water loss and replacement. Inevitably, some water will be lost through evaporation, transportation, leaks, application to soil, and water treatment processes in industrial and public utility uses, such as waste treatment systems. Eventually, this lost water will require replacement from another water source "outside" CEQA Findings of Fact and Statement of Overriding Considerations EIR 03-05 - PDF and Desalination Plant Amendment to add Section 5.5 3 the recycled water system. Accordingly, an argument could be made that this replacement could come from sources other than imported and desalinated water, such as stormwater. However, the City has no way of capturing stormwater for use as a potable supply as the City does not have any stormwater impoundment reservoirs. CEQA Findings of Fact and Statement of Overriding Considerations EIR 03-05 - PDF and Desalination Plant Amendment to add Section 5.5 4 1 ORDINANCE NO. NS-806 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A PRECISE DEVELOPMENT PLAN POP 00-02 FOR (1) THE EXISTING 95- 4 ACRE ENCINA POWER STATION (EPS), LOCATED AT 4600 CARLSBAD BOULEVARD IN LOCAL FACILITIES 5 MANAGEMENT ZONES 1 AND 3 AND GENERALLY NORTH OF CANNON ROAD, SOUTH OF AGUA HEADIONDA LAGOON, 6 EAST OF THE PACIFIC OCEAN, AND WEST OF INTERSTATE 5, AND; (2) THE PROPOSED CARLSBAD SEAWATER 7 DESALINATION PLANT, WHICH WOULD BE LOCATED ON THE GROUNDS OF THE EPS. 8 CASE NAME: PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT 9 CASE NO.: POP 00-02 WHEREAS, the City Council of the City of Carlsbad, California has reviewed and considered a request to approve Precise Development Permit 00-02 for the Encina Power 12 Station and Carlsbad Seawater Desalination Plant; and 13 WHEREAS, after procedures in accordance with the requirements of law, the 14 City of Carlsbad has determined that the public interest indicates that said Precise Development 15 Plan be approved; and 16 WHEREAS, the City Council did on the 13th day of June 2006, held a duly noticed public hearing as prescribed by law to consider said request; andlo WHEREAS at said public hearing, upon hearing and considering all testimony 20 and arguments, if any, of all persons desiring to be heard, said Council considered all factors 21 relating to the Precise Development Plan. 22 NOW, THEREFORE, the City Council of the City of Carlsbad does ordain as 23 follows: 24 SECTION I: That Precise Development Plan PDP 00-02, dated May 3, 2006, on file in the Planning Department and incorporated by reference herein is approved. All development of the property shall substantially conform to the approved plan as conditioned. 27 28 SECTION II: That the findings and conditions of the Planning Commission in 2 Planning Commission Resolution No. 6088 shall also constitute the findings and conditions of the City Council. 4 EFFECTIVE DATE: This ordinance shall be effective thirty days after its 5 adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be 6 published at least once in a publication of general circulation in the City of Carlsbad within 7 fifteen days after its adoption. Notwithstanding the preceding, this ordinance is subject to a 8 coastal development permit issued by the California Coastal Commission and shall not be . » effective until it is approved by the California Coastal Commission. 11 "" 12 //// 13 //// 14 //// 15 //// 16 //// //// 18 //// 19 //// 20 //// 21 22 23 24 25 26 "" 27 28 "" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 13th day of June , 2006, and thereafter PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of , 2006, by the following vote, to wit: AYES: NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY: RONALD R. BALL, City Attorney CLAUDE A. LEWIS, Mayor ATTEST: LORRAINE M. WOOD, City Clerk 1 2 3 4 5 6 7 8 9 10 11 16 17 18 19 24 25 26 y o ORDINANCE NO. NS-807 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND POSEIDON RESOURCES (CHANNELSIDE) LLC TO PROVIDE FOR THE CONSTRUCTION OF THE CARLSBAD SEAWATER DESALINATION PLANT. CASE NAME: PRECISE DEVELOPMENT PLAN AND DESALINATION PLANT CASE NO.: DA 05-01 WHEREAS, the City Council of the City of Carlsbad, California has reviewed and considered a request to approve a Development Agreement for the Carlsbad Seawater Desalination Plant; and 12 WHEREAS, after procedures in accordance with the requirements of 13 law, the City of Carlsbad has determined that the public interest indicates that said 14 Development Agreement be approved; and 1 O WHEREAS, California Government Code Section 65867.5 and Carlsbad Municipal Code Section 21.70.090 state the approval of a development agreement is a legislative act which must be approved by ordinance; and WHEREAS, this ordinance is adopted pursuant to Article 2.5 of the 20 California Government Code and Chapter 21.70 of the Carlsbad Municipal Code; 21 and 22 WHEREAS, the City Council did on the 13th day of23 June 2006 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 27 testimony and arguments, if any, of all persons desiring to be heard, said Council 28 considered all factors relating to the Development Agreement. Ordinance No. NS-807 Page 1 of 3 1 6 7 8 9 15 16 17 22 23 24 25 NOW, THEREFORE, the City Council of the City of Carlsbad does 2 ordain as follows: 3 SECTION 1: That the Development Agreement between the City of 4 Carlsbad and Poseidon Resources (Channelside) LLC, attached hereto marked 5 Exhibit "D-1" and incorporated by reference ("Development Agreement") is 10 SECTION 2: That the findings of the Planning Commission in 11 Planning Commission Resolution No. 6090 shall also constitute the findings of the 12 City Council. 13 SECTION 3: Upon the occurrence of the Effective Date (as defined approved in substantially the form presented at the Council meeting of June 13, 2006 and subject to obtaining the consent of the property owner (Cabrillo Power I, LLC) in a form satisfactory to the City Attorney. in the Development Agreement), the City Clerk is authorized and directed to record the Development Agreement in the Office of the San Diego County Recorder pursuant to Section 21.70.030 of the Carlsbad Municipal Code. 18 EFFECTIVE DATE: This ordinance shall be effective thirty days 19 after its adoption, and the City Clerk shall certify the adoption of this ordinance and 20 cause it to be published at least once in a publication of general circulation in the City of Carlsbad within fifteen days after its adoption. Notwithstanding the preceding, this ordinance shall not become effective unless and until the Development Agreement is approved by the California Coastal Commission. INTRODUCED AND FIRST READ at a regular meeting of the 26 Carlsbad City Council on the 13th day of June , 2006, and 27 thereafter 28 Ordinance No. NS-807 Page 2 of 3 1 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of , 2006, by the following 3 2 vote, to wit: 4 AYES: 5 NOES:6 ABSENT:7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPROVED AS TO FORM AND LEGALITY RONALD R. BALL, City Attorney CLAUDE A. LEWIS, Mayor ATTEST: LORRAINE M. WOOD, City Clerk (SEAL) Ordinance No. NS-807 Page 3 of 3 Exhibit "D-1" 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 Recorder's Use Only) This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. DEVELOPMENT AGREEMENT A DEVELOPMENT AGREEMENT BETWEEN CITY OF CARLSBAD and POSEIDON RESOURCES (CHANNELSIDE) LLC DSMDB.1996157.6B TABLE OF CONTENTS 1 DEFINITIONS AND EXHIBITS 2 1.1 Definitions 2 2 GENERAL PROVISIONS 6 2.1 Binding Effect of Agreement 6 2.2 Legal Interest in Property 6 2.3 Term 6 2.4 Sale, Transfer or Assignment 6 2.5 Amendment or Cancellation of Agreement 9 2.6 Termination 9 2.7 Liability 10 2.8 Compliance With Environmental Law 10 3 DEVELOPMENT OF THE PROJECT 10 3.1 Permitted Uses 10 3.2 Vested Rights 10 3.3 Effect of Agreement on Land Use Regulations 11 3.4 Timing of Development 11 3.5 Changes and Amendments 12 3.6 Reservations of Authority 12 3.7 Public Works 13 3.8 Provision of Real Property Interests by the City. 14 3.9 Regulation by Other Public Agencies 14 3.10 Tentative Tract Map Extension 14 3.11 Poseidon Obligation to Obtain and Maintain Insurance 14 4 PUBLIC BENEFITS 14 4.1 Intent 14 4.2 Mitigation Measures and Fees 15 4.3 Dedications 16 5 FINANCING OF APPURTENANT FACILITIES; OTHER PUBLIC FINANCING; USE OF PUBLIC RIGHTS OF WAY 16 5.1 Appurtenant Facilities 16 5.2 Other Public Financing 16 5.3 Use of Public Rights of Way 16 6 ANNUAL REVIEW 16 6.1 Periodic Review 17 6.2 Opportunity to be Heard 17 6.3 Information to be Provided Poseidon 17 7 INCORPORATION AND ANNEXATION 17 7.1 Intent 17 7.2 Incorporation 17 7.3 Annexation 17 8 DEFAULT AND REMEDIES 17 8.1 Remedies in General 18 DSMDB.19%157.6B 8? 8.2 Termination by City 18 8.3 Liquidated Damages for Poseidon's Failure to Amend This Agreement Upon Relocation of Plant Facilities 18 8.4 Specific Performance 19 8.5 Release and Reservation 20 8.6 Termination Agreement for Default of Poseidon 20 8.7 Termination of Agreement for Default of the City 20 8.8 Rights, Remedies for Negligence, Willful Misconduct 20 9 THIRD PARTY LITIGATION; INDEMNIFICATION 20 9.1 General Plan Litigation 20 9.2 Third Party Litigation Concerning Agreement ...21 9.3 Breaches of Agreement; Property Damage, Bodily Injury or Death 21 9.4 Indemnification Procedure 21 9.5 Survival 22 10 MORTGAGEE PROTECTION 22 11 MISCELLANEOUS PROVISIONS 23 11.1 Recordation of Agreement 23 11.2 Further Actions 23 11.3 Amendment 23 11.4 Entire Agreement 23 11.5 Notices 23 11.6 Controlling Law 24 11.7 Headings 24 11.8 Cumulative Rights; Waiver 24 11.9 Liberal Construction 24 11.10 Severability 24 11.11 Good Faith and Fair Dealing 25 11.12 No Third Party Beneficiaries 25 11.13 Execution in Counterparts 25 11.14 Time of the Essence 25 11.15 Number, Gender 25 11.16 Relationship 25 11.17 Joint and Several Obligations 26 11.18 Force Majeure 26 11.19 Mutual Covenants 26 11.20 Successors in Interest 26 11.21 Jurisdiction and Venue 26 11.22 Project as a Private Undertaking 26 11.23 Eminent Domain 26 11.24 Agent for Service of Process 26 11.25 Authority to Execute 27 11.26 Commission Approval Required 27 11.27 Approval Procedure 27 11 DSMDB.1996157.6B 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 seg. 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 for the Project, dated , 2006, under the provisions of CEQA; and, WHEREAS, this Agreement and the Project are consistent with the City's General Plan and the Precise Development Plan applicable to the Property; and, WHEREAS, all actions taken and approvals given by the City have been duly DSMDB.1996157.6B 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 this 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 Development Agreement. 1.1.2 "Agreement Date" means the date this Agreement is fully executed by the parties. 1.1.3 "Approval Ordinance" means the City Ordinance No. , which became effective on , 2006, approving this Agreement. 1.1.4 "Appurtenant Facilities" means transmission 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 Oceanside or Vista, California. 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. DSMDB. 1996157.6B 1.1.6 "CEQA" means the California Environmental Quality Act, California Public Resources Code Sections 21000 et seq. 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. 1.1.8 "City Council" means the duly elected members of the City Council of the City, as those members may from time to time be elected. 1.1.9 "Code" means the California Government Code. 1.1.10 "Commission" means the California Coastal Commission. 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 with respect to the City, any Event of Default with respect to the District under the Water Purchase Agreement. 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. 1.1.13 "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: (i) Development of the portion of the Property subject to the Leasehold and (ii) the Appurtenant Facilities, including, but not limited to: (a) Project EIR (b) Precise Development Plan (POP 00-02) and any amendments thereto; (c) Coastal Development Permit; (d) Redevelopment Permit; (e) Improvement Plans; (f) Grading permit(s); (g) Habitat Management Plan Permit; (h) Encroachment Permit(s); (i) Easements and Rights of Way Permits; (j) Haul Route Permit; 3 DSMDB.1996157.6B (k) This Agreement; and (I) Special Use Permit. 1 .1 .14 "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. 1.1.15 "District" means the Carlsbad Municipal Water District, a municipal water district. 1.1 .16 "Effective Date" means the last to occur of the following: (i) the date the Approval Ordinance becomes effective, (ii) the date that the Agreement is fully executed by the parties, (Hi) the date the Commission approves this Agreement, or (iv) the date Cabrillo has provided the consent attached hereto as Exhibit "A". 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 .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. 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 .20 "Lease" means that certain Ground Lease and Easement Agreement, dated July 1 1 , 2003, and entered into by and between Poseidon and Cabrillo. 1 .1 .21 "Leasehold" means Poseidon's interest in a portion of the Property under the terms and conditions of the Lease. 1 .1 .22 "MGD" means million gallons per day. 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 .24 "Plant Facilities" means production assets consisting of a reverse- osmosis seawater desalination plant. 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 DSMDB.1996157.6B 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. 1.1.26 "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. 1.1.27 "Power Plant" means the Encina Power Station owned and operated by Cabrillo. 1.1.28 "Product Water" means desalinated seawater produced from the Project. 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: (1) the Plant Facilities; and (2) the Appurtenant Facilities; provided, however that if the District elects to own or have a joint powers 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 MOD 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. 1.1.30 "Property" means the real property described on Exhibit "B" and depicted on Exhibit "C" to this Agreement. 1.1.31 "RDA" means the Carlsbad Housing and Redevelopment Commission. 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. 1.1.33 "Subsequent Development Approvals" means all Development Approvals required subsequent to the Agreement Date in connection with development of the Project. 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. 1.1.35 "Subsequent Land Use Regulations" means any Land Use Regulations adopted and effective after the Agreement Date. 1.1.36 "Water Purchase Agreement" means that certain Water Purchase Agreement, dated as of September 28, 2004, and entered into by and between DSMDB.1996157.6B 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 "E" - Existing Land Use Regulations. 2 GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. This Agreement runs with, and is binding upon, the Leasehold, 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: (a) Either: (i) The 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 (ii) The 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; 6 DSMDB. 1996157.6B or (iii) The sale, transfer or assignment is made in connection with a permitted assignment of the Water Purchase Agreement; and (b) The 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. (c) Any sale, transfer or assignment not made compliance with the foregoing conditions shall constitute a default by Poseidon under this Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b), above, of this Subsection 2.4.1, and regardless of whether such purchaser, transferee or assignee has succeeded to Poseidon's interest in the Project, the Property or the Leasehold voluntarily or involuntarily, by operation of law or otherwise, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. 2.4.2 Condemnation. In reliance upon the terms, covenants and conditions set forth in this Agreement, the City and (or) the RDA have (has) incurred 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 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 Property 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: (i) 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, (ii) Poseidon is no longer obligated to pay the mitigation fee pursuant to Section 4 of this Agreement and (iii) the acquiring party does not agree to pay such mitigation fee, the provisions of this Section 2.4.2 shall apply. (a) If 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 its interest as described in subsection (c) 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' DSMDB.1996157.6B 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). (b) If there is a voluntary conveyance by Poseidon of the Poseidon Property Interest or any part thereof to a public or quasi-public agency or entity (the "Condemning Agency") in lieu of or under threat by the Condemning Agency to take the Poseidon Property Interest, or any portion thereof, by eminent domain proceedings, Poseidon shall include in the voluntary sales price the present value (calculated as of the date of the voluntary conveyance using as a discount rate the Standard & Poor's (S&P) Composite Yjeld 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). (c) If 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 (a) 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. (d) 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. (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 8 DSMDB.1996157.6B 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). (f) If (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 (a) or (b) above, (ii) the Condemning Agency does not have an agreement with the City and/or the RDA with respect to the payment of a mitigation fee, (iii) the Condemning Agency nonetheless pays some or all of the mitigation fee required by Section 4 of this Agreement, (iv) the City or the RDA has received payment for the City/RDA Property Interest pursuant to Section 2.4.2 (a) or (b) above and (v) in the case of an award being apportioned pursuant to Section 2.4.2(a) 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 (a) or (b) 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 Approval Ordinance; (c) The adoption of a referendum measure repealing the 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 9 DSMDB.1996157.6B 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: (i) A sale, transfer or assignment of this Agreement pursuant to Section 2.4.1; (ii) Acquisition of Poseidon's interest in the Project as described in Section 2.4.2; or (iii) 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 10 DSMDB.19%157.6B 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. 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 is 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.Sd 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 11 DSMDB.19%157.6B 0 Development Approvals. If Poseidon finds that a change in the Existing Development Approvals is necessary or appropriate, Poseidon shall apply for Subsequent Development Approvals to effectuate such change and the City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement, including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit "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; or (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 12 DSMDB. 1996157.6B Redevelopment Area. No such Subsequent Development Exaction shall apply if its application to the Project would have a material adverse effect on the development of the Project for the uses and to the density or intensity of development set forth in the Development Plan. (e) Regulations which may be in conflict with the Development Plan but which are reasonably necessary to protect the public health, safety, morals and welfare. To the extent possible, any such regulations shall be applied and construed so as to provide Poseidon with the rights and assurances provided under this Agreement. (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, 13 DSMDB.1996157.6B the reaj 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 availabje to it, including without limitation the rights under Sections 1001 and 1002 of the California Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so requested by Poseidon and upon Poseidon's provision of adequate security for costs the City may reasonably incur, then: (a) the City may negotiate the purchase of the necessary real 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 14 DSMDB.1996157.6B Authority, the City, the District and the RDA). Notwithstanding the foregoing, such mitigation fee shall be waived so long as Poseidon or its successors in interest shall pay and continue to pay, as and when due, 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 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 Project. The deed of trust shall be: (i) in a form reasonably acceptable to the parties, (ii) be recorded within ninety (90) days after the parties agree upon the form thereof and (iii) 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 et sea, 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 dedicate real property as described in Exhibit 5 of the Precise Development Plan (POP 00-02). 15 DSMDB.1996157.6B 10' 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. 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 way 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 way already in existence or planned as of the Effective Date as described in Exhibit 3.5 of the final Project EIR 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 Valley Road on the West. 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 way 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 Development Plan. 6 ANNUAL REVIEW. 6.1 Periodic Review. The City's Planning Director 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 16 DSMDB.19961S7.6B 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 be Heard. Upon written request to the City by Poseidon, Poseidon shall be permitted an opportunity to be heard orally and/or in writing at a noticed public hearing regarding its performance under this Agreement. Poseidon shall be heard before the City Council at any required public hearing concerning a review of action on the Agreement. 6.3 Information to be 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. 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: (a) The City and all persons acting on behalf of the City shall not be liable in damages to Poseidon, or to any successor in interest, or to any other person. Poseidon covenants not to sue for monetary damages or claim any monetary damages: (i) for any breach of this Agreement or for any cause of action which arises out of this Agreement; or (ii) for taking, impairment or restriction of any property right or interest as the result of or arising under or pursuant to this Agreement, but excluding claims based upon applicable obligations of the City acting in its governmental capacity and not as a party to this Agreement, and reserving the reserved rights and remedies described in Sections 8.5 and 8.8; or 17 DSMDB.1996157.6B (iii) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. (b) Poseidon 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: (i) for 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 (ii) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement; (iii) provided, however, that City reserves the right to sue for any sums, including without limitation any sums due pursuant to Section 4 of this Agreement, that are specifically required to be paid by Poseidon or its successors pursuant to this Agreement, and provided further, however, the City also reserves the rights and remedies described in Section 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 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. 18 DSMDB.1996157.6B 106 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)(iii) above and 8.8 below, money damages and remedies at law generally are inadequate and that specific performance and other non-monetary relief are the exclusive remedies for the enforcement of this Agreement and should be available to all parties for the following reasons: (!) Money damages are unavailable against City, or against Poseidon except as provided herein; (ii) Due 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. 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 Agreement for Default of Poseidon. The City may terminate this Agreement for any Default by Poseidon; provided, however, the City may terminate this Agreement pursuant to this Section only after providing written notice to Poseidon 19 DSMDB.1996157.6B 101 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 City. Poseidon may terminate this Agreement for any Default by the City only after providing written notice to the City of Default setting forth the nature of the Default and the actions, if any, required by the City to cure such Default and, where the Default can be cured, the City has failed to take such actions and cure such Default within sixty (60) days after the City's receipt of such notice or, in the event that such Default cannot be cured within such sixty (60) day period but can be cured within a longer time, the City has failed to commence the actions necessary to cure such Default within such sixty (60) day period and to diligently proceed to complete such actions and cure such Default. 8.8 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. 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 of 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 20 DSMDB.19%157.6B 0 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 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 (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 indemnjfy the City pursuant to this Agreement, as a condition thereto the City shall give Poseidon reasonably prompt notice of any matter for which indemnification is sought hereunder. The City shall cooperate in the defense of such claim (and pending assumption of defense, the City, in its good faith judgment, may take such steps to defend itself against such claim as it deems appropriate to protect its interests). Poseidon shall pay the City'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 City reasonably informed as to the status of the defense of such claim. After notice from Poseidon to the City of the assumption, and the defense of a claim, Poseidon shall not be liable to the City for any legal or other expenses subsequently incurred by the City 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 City), shall defend any such claim; provided, however, that if, in the City's reasonable judgment at any time, either a conflict of interest arises between Poseidon and the City or if there are defenses which are different from or in addition to those available to Poseidon and/or the City and the representation of both parties by the same counsel would be inappropriate, then in each such case the City shall have the right to employ a separate law firm in each applicable jurisdiction (if necessary) ("Separate Counsel"), to represent the City 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 City 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 City'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 City; 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. 21 DSMDB. 1996157.6B 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 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 terms of this Agreement. 11 MISCELLANEOUS PROVISIONS. 11.1 Recordation of Agreement. As more particularly set forth below in Section 1 1 .27, this Agreement and any amendment or cancellation thereof shall be recorded against the real property included in the Specific Plan Amendment area 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. 1 1 .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 22 DSMDB.1996157.6B 2- 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. 11.5 Notices. As used in this Agreement, "notice" 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 giveri 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 840 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 23 DSMDB.1996157.6B 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, 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 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 Severability. If any provision of this Agreement shall be ruled invalid, illegal or unenforceable, then the parties shall: (a) promptly negotiate a substitute for such provision which shall, to the greatest extent legally permissible, therein effect the intent of the parties in such invalid, illegal or unenforceable provision; and (b) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with clause (a) above to give effect to the intent of the parties without the invalid, illegal or unenforceable provision. To the extent that the parties are able to negotiate such changes, substitutions or additions as set forth in the preceding sentence, and the intent of the parties with respect to the essential terms of the Agreement may be carried out without the invalid, illegal or unenforceable provision, then the balance of this Agreement shall not be affected, and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision did not exist. 11.11 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 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 24 DSMDB.19961S7.6B 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. 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 Maieure. Neither party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused an event of Force Majeure. "Force 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. 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. Subject to the receipt of any consent of Cabrillo required under the Lease, each covenant to do or refrain from doing some act hereunder with regard to development of the Project and the Leasehold : (a) is for the benefit of and is a burden upon every portion of the Project and the Property subject to the Leasehold; (b) runs with the Project and the portion of the Property subject to the Leasehold and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Project or the Leasehold or any portion thereof. 11.21 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the 25 DSMDB. 1996157.6B 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. 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 Approval Ordinance. (c) Following adoption of the 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 area 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. 26 DSMDB. 1996157.6B \\(J> IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year below set forth. Dated:2006 "CITY1 CITY OF CARLSBAD ATTEST: By:_ Name: Title: By: City Clerk (SEAL) Dated:_, 2006 "POSEIDON" Poseidon (Channelside) LLC, a Delaware limited liability company By:_ Name: Title: DSMDB. 1996157.6B 27 17 STATE OF CALIFORNIA } } ss COUNTY OF SAN DIEGO } On , before me, personally appeared ' personally known to me (or 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. Witness my hand and official seal. Signature STATE OF CALIFORNIA } } ss COUNTY OF SAN DIEGO } On , before me, , personally appeared , personally known to me (or 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. Witness my hand and official seal. Signature 28 DSMDB. 1996157.6B 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. (Planning Application No. ). 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. 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 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 me (or 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. Witness my hand and official seal. Signature DSMDB.19%157.6B 111 EXHIBITS "B" and "C" (Legal Description and Maps of the Property) See Exhibits A-J attached hereto 170 EXHIBIT "A" LEGAL DESCRIPTION OF THE LEASED PREMISES data-wp8\dynegy\encina\poscidon\docunnents\combined lease and easement agmlVdec revisions to lease-easement agreemem.final..doc Z! EXHIBIT 'A' LEGAL DESCRIPTION FOR THE LEASED PREMISES THAT PORTION OF LOT WH" 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, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 67°22'25" WEST, 427.00 FEET; THENCE NORTH 2.2°37'35" WEST, 320.00 FEET; THENCE NORTH 67°22'25" EAST, 427.00 FEET; THENCE SOUTH 22037'35" EAST, 320.00' FEET TO THE POINT OP BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT »A-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. • SAID PARCEL OF LAND CONTAINS 3.137 ACRES, MORE OR LESS. GARY L. L.S. 7019 EXPIRATION DATE DATE 6/30/2006 T:\SURVEY\2398\Plats\LegaIs\ExibA-LeasedPrenuses.doc July 3,2003 JG.. EXHIBIT "A-l" MAP GENERALLY DEPICTING THE LEASED PREMISES data-wp8\dyncgy\cncina\poseidon\documents\combined lease and easement agmftdec revisions to lease-easement agreement.final..doc LEGAL DESCRIPTION: A PORTION OF PARCEL 4 PER CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 50, 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: 210-010-39 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 UNE BETWEEN FIRST ORDER CONTROL POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271, /.£ N40'39'21"W. LEGEND: INDICATES EXISTING PROPERTY UNE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES THE LEASED PREMISES AREA = 3.137 ACRES. MORE OR LESS OWNER: CABRILLO POVKR I LLC 4600 CARLSBAD BOULEVARD CARLSBAD. CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE: (619)235-6471 VICINITY MAP NO SCALE GARYL HUS.^LS.7019 REGISTRATION EXPIRES 6/30/2006 DATE APPLICANT: POSEIDON RESOURCES 501 WEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 THE LEASED PREMISES EXHIBIT •A-1* SWEET/ OF2 A.P.N. 210-010-39 Ti\SUfiVEY\a39B\f>lats\P(atA,l-LKisedfVenlsesShtOl.d»Q 07/07/3003 PK POT PARCEL 3 ROS 17350 PARCEL 4 ROS 17350 N672947'E 54.68" AT&SF RAILROAD RIGHT-OF-WAY PARCEL 4 ROS 17350 PARCEL 7 ROS 17350PARCEL 4 xCERTIFICATE OF COMPLI \RECORDED OCTOBER-iSCf,' \ FILE NO. PARCEL 5 ROS 17350 SCALE 1" = 400' APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO, CALIFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 THE LEASED PREMISES EXHIBIT •A-1* SHEET20F2 A.P.N. 210-010-39 Ti\SURVCr\2398\Plnts\PH>tAI-LeosedPrrnlsesShtoa.dwe 07/03/2003 08.07^39 AH PDT EXHIBIT "B" LEGAL DESCRIPTION OF CERTAIN OF THE GRANTOR PROPERTIES data-wp8\dynegy\encina\poseidon\documents\combincd lease and easement agmt\dec revisions to lease-easement agreemenLfinal..doc 01-0228360 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF San Diego AND IS DESCRIBED AS FOLLOWS: PARCEL A: PORTION OF ASSESSOR PARCEL NO. 210-010-36 [BOOK 4821 PAGE 199/ECKE] (PORTION OF PARCEL 3 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789067 OF OFFICIAL RECORDS) ALL THAT PORTION OF RANCHO AGUA HEDIONDA, IN THE CITY 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, 1896, SITUATED WITHIN THAT PORTION THEREOF DESCRIBED IN DEED TO SAN DIEGO COUNTY WATER COMPANY, RECORDED JUNE 17, 1940 IN BOOK 1035, PAGE 301 OF OFFICIAL RECORDS, AS DOCUMENT NO. 28815 BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTHERLY BOUNDARY OF LOT "H" OF SAID RANCHO AGUA HEDIONDA, WITH THE CENTER LINE OF THE 100 FOOT RIGHT OF WAY GRANTED TO THE STATE OF CALIFORNIA, BY DEED RECORDED AUGUST 30, 1935, IN BOOK 432, PAGE 60 OF OFFICIAL RECORDS, AS DOCUMENT NO. 46278, SAID POINT BEING A PORTION OF SAID NORTHERLY BOUNDARY OF LOT "H" BEARING SOUTH 78°03' EAST, 1149.32 FEET (RECORD 1148.08 FEET) AND NORTH 72°21'30" EAST, 2036.33 FEET (RECORD NORTH 72°24' EAST, 2036.30 FEET) FROM CORNER NO. 1 OF SAID RANCHO AGUA HEDIONDA ACCORDING TO LICENSED SURVEY MAP NO. 173, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 16, 1913; THENCE SOUTHEASTERLY ALONG SAID CENTER LINE OF RIGHT OF WAY SOUTH 36°52'50" EAST (HIGHWAY RECORDS SOUTH 36°57'30" EAST) 677.05 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY, SAID BEGINNING OF CURVE BEING SHOWN AS ENGINEER'S STATION 394 PLUS 63.74 ON MAP OF SAID 100 FOOT HIGHWAY RIGHT OF WAY OF ROAD XI-SD-2B ON FILE IN THE OFFICE OF THE DISTRICT STATE HIGHWAY ENGINEER; THENCE SOUTH 53°07'10" WEST, RADIALLY TO SAID TANGENT CURVE TO A POINT ON THE MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN, WHICH POINT IS THE TRUE POINT OF BEGINNING OF THE PROPERTY HEREIN DESCRIBED; THENCE FROM SAID TRUE POINT OF BEGINNING RETRACING NORTH 53°07'10" EAST TO A POINT ON THE NORTHEASTERLY LINE OF SAID 100 FOOT STATE HIGHWAY RIGHT OF WAY, WHICH POINT IS OPPOSITE SAID CENTER LINE ENGINEER'S STATION 394 PLUS 63.74 E.G.; THENCE SOUTH. 45°31'16" EAST, 504.48 FEET TO A POINT WHICH IS RADIALLY NORTH 58°40'37" EAST A DISTANCE OF 150 FEET FROM THE CENTER LINE OF SAID 100 FOOT STATE HIGHWAY RIGHT OF WAY; THENCE SOUTHEASTERLY ALONG THE ARC OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 5150 FEET AND BEING CONCENTRIC WITH SAID CENTER LINE OF SAID 100 FOOT STATE HIGHWAY RIGHT OF WAY, THROUGH A CENTRAL ANGLE OF 4°09'40" A DISTANCE OF 374.01 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE PROPERTY CONVEYED TO THE SAN DIEGO 01-0228360 GAS AND ELECTRIC COMPANY BY GROVER C. JACOBSEN, ET AL., BY DEED RECORDED IN BOOK 4456, PAGE 49 OF OFFICIAL RECORDS; SAID LINE BEING ALSO THE SOUTHEASTERLY LINE OF THE LAND CONVEYED TO PAUL ECKE, ET UX AND DESCRIBED IN PARCEL "1" OF A DEED RECORDED IN BOOK 2778, PAGE 357 OF OFFICIAL RECORDS; THENCE NORTH 72°21'30" EAST ALONG SAID LINE SO DESCRIBED, 1129.89 FEET TO THE WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AS SAID RIGHT OF WAY WAS DESCRIBED IN DEED RECORDED SEPTEMBER 13, 1948, IN BOOK 2944, PAGE 74 OF OFFICIAL RECORDS; THENCE NORTH 29°16' WEST ALONG SAID WESTERLY RAILROAD RIGHT OF WAY LINE 275.00 FEET; THENCE LEAVING SAID WESTERLY RAILROAD RIGHT OF WAY LINE NORTH 76°46' WEST, 931.69 FEET; THENCE NORTH 30°48' WEST 238.36 FEET TO A POINT IN THE NORTHEASTERLY LINE OF SAID LOT "H" OF RANCHO AGUA HEDIONDA; THENCE NORTH 78°03' WEST ALONG SAID NORTHEASTERLY LINE OF LOT »H" OF RANCHO AGUA HEDIONDA, 1014.32 FEET TO CORNER NO. 1 OF SAID RANCHO; THENCE SOUTH 30°06' WEST ALONG THE SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF SAID RANCHO AGUA HEDIONDA TO THE MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN; THENCE SOUTHEASTERLY ALONG SAID MEAN HIGH TIDE LINE TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM, 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, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY OF SAN DIEGO, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS: COMMENCING AT CORNER NO. 1 OF SAID RANCHO AGUA HEDIONDA, AS SHOWN AND DELINEATED ON RECORD OF SURVEY 1806, FILED APRIL 30, 1948 IN SAID COUNTY RECORDER'S OFFICE; THENCE ALONG THE NORTHERLY LINE OF SAID LOT "H", SOUTH 78°03'00H EAST, 92.06 FEET TO A POINT ON THE CENTER LINE OF CARLSBAD BOULEVARD, 100 FEET IN WIDTH, (FORMERLY U.S. HWY 101); THENCE ALONG SAID CENTER LINE AS SHOWN AND DELINEATED ON SAID RECORD OF SURVEY MAP NO. 1806, SOUTH 36°52'50" EAST 285.30 FEET TO A POINT HEREIN DESIGNATED POINT "A"; THENCE FROM SAID POINT "A" AND LEAVING SAID CENTER LINE, SOUTH 53° 07'10" WEST, 50.00 FEET TO THE TRUE POINT OF BEGINNING; SAID TRUE POINT OF BEGINNING BEING A POINT ON THE SOUTHWESTERLY LINE OF SAID CARLSBAD BOULEVARD; THENCE FROM SAID TRUE POINT OF BEGINNING CONTINUING SOUTH 53°07'10" WEST 115.64 FEET TO A POINT ON THE ORDINARY HIGH WATER MARK, AS ESTABLISHED BY A SURVEY FILED AND APPROVED ON DECEMBER 22, 1953 BY THE STATE LANDS COMMISSION, DIVISION OF STATE LANDS, STATE OF CALIFORNIA; THENCE ALONG SAID ORDINARY HIGH WATER MARK, SOUTH 44°32'55" EAST 36.22 FEET; THENCE SOUTH 39°09'42B EAST, 101.05 FEET AND SOUTH 31°48'31" EAST 255.88 FEET; THENCE LEAVING SAID ORDINARY HIGH WATER MARK, NORTH 53°07'10" EAST 129.41 FEET TO A POINT ON SAID SOUTHWESTERLY LINE OF CARLSBAD BOULEVARD; THENCE ALONG SAID SOUTHWESTERLY LINE, NORTH 36°52'50" WEST 391.75 FEET TO THE TRUE POINT OF BEGINNING. 01-0228360 RESERVING FROM THE HEREINABOVE DESCRIBED PROPERTY EASEMENTS TO FACILITATE ACCESS TO, AND THE USE AND MAINTENANCE OF THE PROPERTY AND THE CONTINUED OPERATION OF CERTAIN SDG&E OPERATIONS EQUIPMENT LOCATED ON SAID PROPERTY, AS SET FORTH IN THE "EASEMENT AND COVENANT AGREEMENT" EXECUTED BY SAN DIEGO GAS & ELECTRIC COMPANY AND CABRILLO POWER I LLC, A DELAWARE LIMITED LIABILITY COMPANY AND RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267 OF OFFICIAL RECORDS. PARCEL "B": PORTION OF ASSESSOR PARCEL NO. 210-010-36 [BOOK 4456 PAGE 49 JACOBSEN] (PORTION OF PARCEL 3 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789067 OF OFFICIAL RECORDS; ALL OF PARCEL 9 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789073 OF OFFICIAL RECORDS; PORTION OF PARCEL 10 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789074 OF OFFICIAL RECORDS; ALL OF PARCEL 11 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789075 OF OFFICIAL RECORDS) ALL THAT PORTION OF RANCHO AGUA HEDIONDA, IN THE 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, 1896, SITUATED WITHIN THAT PORTION THEREOF DESCRIBED IN DEED TO SAN DIEGO COUNTY WATER COMPANY, RECORDED JUNE 17, 1940 IN BOOK 1035, PAGE 301 OF OFFICIAL RECORDS BY DOCUMENT NO. 28815, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF A LINE WHICH IS PARALLEL WITH AND DISTANT 2000 FEET AT RIGHT ANGLES SOUTHERLY FROM THE SOUTHERLY LINE OF BLOCK "V" OF PALISADES NO. 2, ACCORDING TO THE MAP THEREOF NO. 1803, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 25, 1924, THE BEARING OF WHICH PARALLEL LINE AND ITS WESTERLY PROLONGATION THEREOF IS RECORDED AS NORTH 72°25' EAST ON SAID MAP OF SAID PALISADES NO. 2, WITH THE WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AS SAID RIGHT OF WAY WAS ESTABLISHED ON SEPTEMBER 22, 1948, SAID POINT OF BEGINNING BEING ALSO THE MOST NORTHERLY CORNER OF THE LAND DESCRIBED IN THE DEED FROM W. D. CANNON, ET AL. , TO THE SAN DIEGO GAS AND ELECTRIC COMPANY, A CORPORATION, RECORDED OCTOBER 8, 1948, IN BOOK 2974, PAGE 493 OF OFFICIAL RECORDS; THENCE ALONG SAID PARALLEL LINE AND ALONG ' THE NORTHERLY LINE OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND SOUTH 72°25' WEST TO THE MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN; THENCE NORTHERLY ALONG SAID MEAN HIGH TIDE LINE 1150 FEET MORE OR LESS TO THE MOST SOUTHERLY CORNER OF THAT PARCEL OF LAND CONVEYED TO PAUL ECKE, ET UX, BY DEED RECORDED APRIL 29, 1948 AS DOCUMENT NO. 43671 IN BOOK 2778, PAGE 357 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID ECKE LAND NORTH 72°21'30" EAST 1720 FEET MORE OR LESS TO THE MOST EASTERLY CORNER OF SAID ECKE LAND 01-0228360 IN THE WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AS SAID WESTERLY LINE WAS ESTABLISHED IN DEED RECORDED AUGUST 30, 1909 AS DOCUMENT NO. 3091 IN BOOK 473, PAGE 111 OF DEEDS; THENCE NORTHERLY ALONG SAID WESTERLY RAILWAY RIGHT OF WAY LINE SO ESTABLISHED IN SAID DEED 880 FEET MORE OR LESS TO THE NORTHERLY BOUNDARY OF SAID ABOVE MENTIONED LAND CONVEYED TO SAN DIEGO COUNTY WATER COMPANY; THENCE ALONG THE NORTHERLY, NORTHEASTERLY AND EASTERLY BOUNDARY OF SAID SAN DIEGO COUNTY WATER COMPANY'S LAND AS FOLLOWS: NORTH 72°24' EAST 1340 FEET MORE OR LESS TO AN ANGLE POINT IN SAID BOUNDARY; NORTH 63°42' EAST 893.68 FEET; SOUTH 34°21' EAST 1290.30 FEET; SOUTH 72°14' EAST 1585.30 FEET; SOUTH 53°57' EAST 892.70 FEET; SOUTH 64°35' EAST 2531.00 FEET; SOUTH 0°34' EAST 1319.22 FEET; NORTH 89°28' EAST 1865 FEET AND SOUTH 0°32' EAST 625 FEET MORE- OR LESS TO THE SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN QUITCLAIM DEED FROM PAUL ECKE, ET UX, TO GROVER C. JACOBSEN, ET AL, RECORDED APRIL 29, 1948 AS DOCUMENT NO. 43667 IN BOOK 2778, PAGE 341 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID JACOBSEN LAND SO DESCRIBED SOUTH 80°43'25" WEST TO AN ANGLE POINT THEREIN AND NORTH 23°05'05" WEST 1485.87 FEET TO A SECOND ANGLE POINT IN SAID SOUTHERLY BOUNDARY FROM WHICH ANGLE POINT THE NEXT COURSE IN SAID SOUTHERLY BOUNDARY TO 'THE WEST BEARS SOUTH 66°54'10" WEST; THENCE LEAVING SAID ANGLE POINT AND LEAVING SAID SOUTHERLY BOUNDARY NORTH 66°54'10" EAST 17 FEET TO A POINT DESIGNATED HEREIN AS POINT "A"; THENCE NORTH 23°05'05" WEST TO AN INTERSECTION WITH THE SOUTHWESTERLY AND SOUTHERLY BOUNDARY OF THE SWAMP OR OVERFLOW LAND KNOWN AS THE LAGOON BED; AS SAID BOUNDARY WAS LOCATED ON SEPTEMBER 28, 1948; SAID INTERSECTION BEING DESIGNATED HEREIN AS POINT "B"; THENCE NORTHWESTERLY AND WESTERLY ALONG SAID SOUTHWESTERLY AND SOUTHERLY BOUNDARY OF SAID SWAMP LAND TO AN INTERSECTION WITH THE EASTERLY LINE OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AS SAID RIGHT OF WAY WAS ESTABLISHED ON SEPTEMBER 22, 1948, SAID INTERSECTION BEING DESIGNATED HEREIN AS POINT "C"; THENCE SOUTHERLY ALONG SAID EASTERLY LINE OF RIGHT OF WAY TO SAID LINE WHICH IS PARALLEL WITH AND DISTANT 2000 FEET AT RIGHT ANGLES SOUTHERLY FROM THE SOUTHERLY LINE OF BLOCK "V OF PALISADES NO. 2, ACCORDING TO MAP THEREOF NO. 1803; THENCE ALONG SAID PARALLEL LINE SOUTH 72°25' WEST TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION THEREOF LYING WITHIN EXCEPTION PARCELS 1 THROUGH 10 DESCRIBED AS FOLLOWS: EXCEPTION PARCEL 1: THAT PORTION OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY DESCRIBED IN DEED RECORDED AUGUST 30, 1909 A3 DOCUMENT NO. 3091 IN BOOK 473, PAGE 111 OF DEEDS, MORE w A" - fate V ^ 2- Y\ 'A r 01-0228360 PARTICULARLY DESCRIBED AS FOLLOWS: THAT PORTION OF LOT "H" OF SUBDIVISION OF RANCKO AGUA KEDIONDA, DESCRIBED AS FOLLOWS: COMMENCING AT INTERSECTION OF WESTERLY LINE OF 100 FOOT RIGHT OF WAY OF ATCHISON, TOPEKA AND 'SANTA FE RAILWAY, WITH NORTHERLY LINE OF SAID LOT "H", THENCE SOUTHERLY ALONG SAID WESTERLY LINE OF 100 FOOT RIGHT OF WAY, 1302 FEET, MORE OR LESS TO A POINT OPPOSITE ENGINEER'S STATION 2251 PLUS 22.2 OF CENTER LINE OF SAID 100 FOOT RIGHT OF WAY, SAID POINT BEING 75 FEET AT RIGHT ANGLES WESTERLY FROM CENTER LINE OF RE-LOCATION OF ATCHISON, TOPEKA AND SANTA FE RAILWAY AT ENGINEERS STATION 2260 PLUS 63.5 OF SAID RELOCATION, THENCE NORTH 37°28' WEST MAGNETIC, PARALLEL WITH AND 75 FEET WESTERLY FROM SAID CENTER LINE OF RE-LOCATION, 666.3 FEET; THENCE NORTHERLY ON A CURVE CONCAVE TO WEST WITH A RADIUS OF 2789.93 FEET, 75 FEET WESTERLY FROM AND PARALLEL WITH SAID CENTER LINE OF RE-LOCATION, 595.7 FEET, MORE OR LESS, TO SAID NORTHERLY LINE OF LOT "H" ; THENCE EASTERLY ALONG SAID NORTHERLY LINE OF LOT H, 30.8 FEET TO POINT OF COMMENCEMENT. ALSO THAT PORTION OF SAID LOT "H", DESCRIBED AS FOLLOWS: COMMENCING IN EASTERLY LINE OF SAID 100 FOOT RIGHT OF WAY OPPOSITE ENGINEER'S STATION 2262 PLUS 02.5 OF CENTER LINE OF SAID RIGHT OF WAY, SAID POINT BEING 50 FEET AT RIGHT ANGLES EASTERLY FROM SAID CENTER LINE OF RE-LOCATION, OPPOSITE ENGINEER'S STATION 2260 PLUS 95.6 OF SAID RE-LOCATION, THENCE SOUTH 37°28" EAST MAGNETIC, PARALLEL WITH AND 50 FEET EASTERLY FROM SAID CENTER LINE OF RE-LOCATION 3123.9 FEET TO A POINT IN EASTERLY LINE OF SAID 100 FOOT RIGHT OF WAY OPPOSITE ENGINEER'S STATION 2229 PLUS 60.7 OF CENTER LINE OF SAID RIGHT OF WAY, THENCE NORTHERLY ALONG EASTERLY LINE OF SAID 100 FOOT RIGHT OF WAY 842.8 FEET TO A POINT 50 FEET AT RIGHT ANGLES WESTERLY FROM CENTER LINE OF SAID RE-LOCATION, OPPOSITE ENGINEER'S STATION 2237 PLUS 96.6, THENCE NORTH 37°28' WEST MAGNETIC PARALLEL WITH AND 50 FEET WESTERLY FROM SAID CENTER LINE OF RE-LOCATION 2103 FEET TO A POINT IN EASTERLY LINE OF SAID 100 FOOT RIGHT OF WAY OPPOSITE ENGINEER'S STATION 2259 PLUS 92.2 OF CENTER LINE OF SAID RIGHT OF WAY; THENCE NORTHERLY ALONG SAID EASTERLY LINE OF SAID 100 FOOT RIGHT OF WAY 210.3 FEET TO THE POINT OF COMMENCEMENT. EXCEPTION PARCEL 2: THAT PARCEL OF LAND DESCRIBED IN DEED TO PAUL ECKE, ET UX, RECORDED APRIL 4, 1947 AS DOCUMENT NO. 35894 IN BOOK 2380, PAGE 40 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT CORNER COMMON TO LOTS "F", "H", AND "I" OF RANCHO AGUA HEDIONDA, IN THE COUNTY OF SAN DIEGO, ACCORDING TO MAP THEREOF NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; RUNNING THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOT "H" A DISTANCE OF 600 FEET; THENCE AT RIGHT 01-0228360 ANGLES WESTERLY A DISTANCE OF 363 FEET; THENCE AT RIGHT ANGLES NORTHERLY PARALLEL WITH SAID EASTERLY LINE OF LOT "H" A DISTANCE OF 600 FEET; THENCE AT RIGHT ANGLES EASTERLY A DISTANCE OF 363 FEET TO THE POINT OF BEGINNING. EXCEPTION PARCEL 3: THAT ONE-HALF INTEREST CONVEYED TO PAUL ECKE, ET UX, IN THE RESERVOIR SITE DESCRIBED IN PARCEL 1 IN DEED TO PAUL ECKE, ET UX, RECORDED APRIL 29, 1948 AS DOCUMENT NO. 43670 IN BOOK 2778, PAGE 352 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: A ONE-HALF UNDIVIDED INTEREST IN A PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE COUNTY OF SAN DIEGO, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTHERLY BOUNDARY OF LOT "H" OF SAID RANCHO AGUA HEDIONDA WITH THE CENTER LINE OF THE 100 FOOT RIGHT OF WAY GRANTED TO THE STATE OF CALIFORNIA BY DEED RECORDED AUGUST 30, 1935 IN BOOK 432, PAGE 60 OF OFFICIAL RECORDS BY DOCUMENT NO. 46278 IN A PORTION OF SAID NORTHERLY BOUNDARY OF LOT "H" BEARING SOUTH 78°03' EAST 1149.32 FEET (RECORD 1148.08 FEET) AND NORTH 72°21'30" EAST 2036.33 FEET (RECORD NORTH 72°24' EAST 2036.30 FEET) FROM CORNER NO. 1 OF SAID RANCHO AGUA HEDIONDA ACCORDING TO LICENSED SURVEY MAP NO. 173 FILED IN THE OFFICE OF THE COUNTY RECORDER DECEMBER 16, 1913; THENCE SOUTHEASTERLY ALONG SAID CENTER LINE OF RIGHT OF WAY 6,664.92 FEET TO ENGINEER'S STATION 334 PLUS 79.00 AS SHOWN ON MAP OF SAID 100 FOOT HIGHWAY RIGHT OF WAY OF ROAD XI SD 2 B ON FILE IN THE OFFICE OF THE DISTRICT STATE HIGHWAY ENGINEER, SAID ENGINEER'S STATION 334 PLUS 79.00 BEING IN THAT COURSE OF SAID CENTER LINE OF RIGHT OF WAY HAVING A BEARING OF SOUTH 30°38'50" EAST (ACCORDING TO SAID HIGHWAY MAP AND ACCORDING TO SAID DEED BOOK 432, PAGE 60, THE BEARING IS RECORD SOUTH 30°43'30" EAST); THENCE NORTH 59°21'10" EAST 1097.36 FEET TO THE CENTER LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AS SAID RIGHT OF WAY IS DESCRIBED IN DEED RECORDED MARCH 10, 1881 IN BOOK 38, PAGE 171 OF DEEDS; THENCE ALONG SAID CENTER LINE OF RAILWAY RIGHT OF WAY NORTH 23°06' WEST, 962.84 FEET; THENCE LEAVING SAID CENTER LINE NORTH 66°54'10" EAST 1770 FEET TO A POINT DESIGNATED HEREIN AS POINT "A"; THENCE NORTH 23°05'05" WEST 461.74 FEET; THENCE NORTH 66°56'40" EAST 350.15 FEET TO THE TRUE POINT OF BEGINNING OF THE PROPERTY HEREIN DESCRIBED; THENCE NORTH 23°03'20" WEST 234 FEET; THENCE NORTH 66°56'40" EAST 260.32 FEET; THENCE SOUTH 23°03'20" EAST 234 FEET; THENCE SOUTH 66°56'40" WEST 260.32 FEET TO THE TRUE POINT OF BEGINNING, AND BEING THE LOCATION OF AN EXISTING WATER RESERVOIR AND PUMPHOUSE. EXCEPTION PARCEL 4: THAT PARCEL OF LAND DESCRIBED IN THE DEED FROM W.D. CANNON, A ft" - 01-0228360 SINGLE MAN, ET AL, TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, A KANSAS CORPORATION, RECORDED OCTOBER 11, 1948, IN BOOK 2977, PAGE 147 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: THAT CERTAIN IRREGULAR SHAPED PARCEL OF LAND AT CARLSBAD, IN THE COUNTY OF SAN DIEGO, BEING A PORTION OF LOT "H" IN RANCHO AQUA HEDIONDA AS SHOWN ON PARTITION MAP THEREOF NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF RECORD OF SURVEY MAP NO. 1806, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY BEING A POINT IN A LINE WHICH BEARS NORTH 72°21'30" EAST FROM ENGINEER'S STATION 386 PLUS 40.79 PER STATE HIGHWAY PLAN XI-SD-2B AS SHOWN ON SAID MAP NO. 1806; THENCE NORTH 72°21'30" EAST ALONG THE NORTHEASTERLY PROLONGATION OF SAID LINE TO THE WESTERLY LINE OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY'S RIGHT OF WAY; THENCE SOUTHERLY ALONG SAID WESTERLY RIGHT OF WAY LINE TO THE NORTHEASTERLY LINE OF SAID RECORD OF SURVEY NO. 1806; THENCE NORTH 29°16'00" WEST ALONG THE NORTHEAST LINE OF SAID RECORD OF SURVEY A DISTANCE OF 835.07 FEET TO THE POINT OF BEGINNING, CONTAINING AN AREA OF 0.57 OF AN ACRE MORE OR LESS. EXCEPTION PARCEL 5: THAT PORTION WHICH LIES WITHIN THE HEREINAFTER DESCRIBED PARCEL "6" AND PARCEL "8 ». EXCEPTION PARCEL 6: EXCEPTING THAT PORTION OF LOT "H" OF THE RANCHO AGUA HEDIONDA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, LYING NORTHERLY OF THE SOUTHERLY BOUNDARY OF THE SWAMP OR OVERFLOW LAND KNOWN AS THE LAGOON BED; AS SAID BOUNDARY WAS LOCATED ON SEPTEMBER 28, 1948 AS DESCRIBED IN GRANT DEED RECORDED MAY 18, 1953 IN BOOK 4858, PAGE 320 OF OFFICIAL RECORDS; CONTAINED WITHIN THE- FOLLOWING DESCRIBED PARCEL OF LAND; BEGINNING AT A POINT ON THE NORTHERLY LIE OF SAID LOT "H", DISTANT THEREON SOUTH 63°35'18" WEST, 751.44 FEET FROM A 6-INCH CONCRETE MONUMENT SET FOR THE MOST NORTHERLY CORNER OF LOT "H" COMMON TO LOTS "H" AND "I" OF SAID RANCHO SAID POINT OF BEGINNING BEING ENGINEER'S STATION 396 PLUS 57.69 P.O.C. ON THE CENTER LINE OF THE DEPARTMENT OF PUBLIC WORKS SURVEY MADE IN 1949 BETWEEN 2.2 MILE SOUTH OF CARLSBAD AND THE SOUTH CITY LIMIT OF OCEANSIDE, ROAD XI-SD-2B; THENCE ALONG SAID NORTHERLY LINE OF LOT "H", NORTH 63°35'18" EAST, 184.16 FEET; THENCE 01-0228360 LEAVING SAID NORTHERLY LINE, SOUTH 18°24'53" EAST, 59.72 FEET; THENCE SOUTH 3°45'02" EAST, 1172.77 FEET; THENCE SOUTH 8S°14'58H WEST, 50.00 FEET; THENCE SOUTH 3°45'02" EAST, 194.23 FEET; THENCE SOUTH 84°58'49" WEST, 141.36 FEET TO ENGINEER'S STATION 383 PLUS 00.07 P.O.C. ON THE CENTER LINE OF SAID SURVEY; THENCE FROM A TANGENT WHICH BEARS NORTH 5°01'11" WEST, ALONG A CURVE TO THE RIGHT WITH A RADIUS OF 2000 FEET, THROUGH AN ANGLE OF 2°18'01" A DISTANCE OF 80.30 FEET; THENCE NORTH 2°43'10" WEST, 69.63 FEET TO ENGINEER'S STATION 384 PLUS 50.00 ON SAID CENTER LINE; THENCE LEAVING SAID CENTER LINE, SOUTH 87°16'50" WEST, 145.00 FEET; THENCE NORTH 0°36'36" WEST, 50.03 FEET; THENCE SOUTH 89°23'24" WEST , 50.00 FEET; THENCE NORTH 0°36'36" WEST, 894.20 FEET; THENCE NORTH 15°45'38" WEST, 194.66 FEET TO SAID NORTHERLY LINE OF LOT "H" ; THENCE ALONG SAID NORTHERLY LINE, NORTH 72°17'18" EAST, 59.22 FEET TO A 6-INCH CONCRETE FILLED IRON PIPE SET FOR AN ANGLE POINT IN SAID NORTHERLY LINE; THENCE CONTINUING ALONG SAID NORTHERLY LINE NORTH 63°35'18" EAST, 142.25 FEET TO THE POINT OF BEGINNING. EXCEPTION PARCEL 7: (PARCEL 1 AND PARCEL 4 OF 69-048604) THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, LYING WESTERLY OF THE WESTERLY BOUNDARY OF THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED MAY 18, 1953 IN BOOK 4858, AT PAGE 320 AND WESTERLY OF THE WESTERLY BOUNDARY OF THE LAND DESCRIBED IN THE FINAL ORDER OF CONDEMNATION, RECORDED MAY 2, 1952, IN BOOK 4456 AT PAGE 192, BOTH IN SAN DIEGO CONTY OFFICIAL RECORDS AND EASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE WESTERLY TERMINUS OF THE COURSE DESCRIBED AS NORTH 89°23'24" WEST, 50.00 FEET, IN SAID DEED; THENCE (1) SOUTH 17°57'26" EAST, 220.15 FEET; THENCE (2) SOUTH 12°34'26" EAST, 424.93 FEET; THENCE (3) SOUTH 22°08'07» EAST, 239.41 FEET; THENCE (4) SOUTH 22°30'44" EAST, 1573.45 FEET; THENCE (5) SOUTH 25°56'45" EAST, 100.18 FEET; THENCE (6) SOUTH 21°18'40" EAST, 197.15 FEET; THENCE (7) SOUTH 16°29'30" EAST, 100.02 FEET ; THENCE (8) SOUTH 50°39'42" EAST, 23.85 FEET; THENCE (9) SOUTH 17°38'11" EAST, 8.78 FEET; THENCE (10) SOUTH 01°07'27" EAST, 116.05 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE THIRD DESCRIBED EXCEPTION AS DESCRIBED IN THE DEED TO SAN DIEGO GAS AND ELECTRIC COMPANY, A CORPORATION, RECORDED JANUARY 21, 1953 IN BOOK 4722 AT PAGE 350, SAND DIEGO COUNTY OFFICIAL RECORDS, SAID POINT BEARS SOUTH 67°31'40" WEST, 56.81 FEET FROM THE MOST NORTHERLY CORNER OF THE LAND DESCRIBED IN SAID EXCEPTION. PARCEL 2: THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896 LYING EASTERLY OF THE EASTERLY BOUNDARY OF THE LAND DESCRIBED 01-0228360 IN THE FINAL ORDER OF CONDEMNATION RECORDED MAY 2, 1952, IN BOOK 4456 AT PAGE 192, SAN DIEGO CONTY OFFICIAL RECORDS, EASTERLY OF THE EASTERLY BOUNDARY OF THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED MAY 18, 1953 IN BOOK 4858 AT PAGE 320, SAN DIEGO CONTY OFFICIAL RECORDS, AND LYING WESTERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT THE EASTERLY TERMINUS OF THE COURSE DESCRIBED AS "SOUTH 86°14'58" WEST, 50.00 FEET IN SAID DEED; THENCE SOUTH 11°16'18" WEST, 200.57 FEET TO THE NORTHERLY TERMINUS OF THE COURSE DESCRIBED AS "SOUTH 16°04'40" EAST, 362.38 FEET" IN SAID FINAL ORDER OF CONDEMNATION. EXCEPTION PARCEL 8: EXCEPTING THEREFROM, ALL THAT PORTION OF THE HEREINABOVE DESCRIBED PARCEL "3" DESCRIBED AS PARCEL "A" IN THE CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 22, 1995 AS FILE NO. 1995-0532900 OF OFFICIAL RECORDS. EXCEPTION PARCEL 9: (PARCEL 1 FROM BOOK 4821, PAGE 209 ORS) ALL THAT PORTION OF RANCHO AGUA HEDIONDA IN THE CITY 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, 1896, SITUATED WITHIN THAT PORTION THEREOF DESCRIBED IN DEED TO SAN DIEGO COUNTY WATER COMPANY, RECORDED JUNE 17, 1940 IN BOOK 1035, PAGE 301 OF OFFICIAL RECORDS, AS DOCUMENT NO. 18815, BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTHERLY BOUNDARY OF LOT "H" OF SAID RANCHO AGUA HEDIONDA WITH THE CENTER LINE OF THE 100 FOOT RIGHT OF WAY GRANTED TO THE STATE OF CALIFORNIA, BY DEED RECORDED AUGUST 30, 1935, IN BOOK 432, PAGE 60 OF OFFICIAL RECORDS AS DOCUMENT NO. 46278 IN A PORTION OF SAID NORTHERLY BOUNDARY OF LOT "H" BEARING SOUTH 78°03' EAST, 1149.32 FEET (RECORD 1148.08) AND NORTH ;72°21'30" EAST, 2036.33 FEET (RECORD NORTH 72°24' EAST, 2036.30 FEET) FROM CORNER NO. 1 OF SAID RANCHO AGUA HEDIONDA, ACCORDING TO LICENSED SURVEY MAP NO. 173 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY DECEMBER 16, 1913; THENCE SOUTHEASTERLY ALONG SAID CENTER LINE OF RIGHT OF WAY SOUTH 36°52'50" EAST (HIGHWAY RECORD SOUTH 36°57'30 EAST) 677.05 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 5000 FEET; THENCE SOUTHERLY ALONG SAID CURVE AND ALONG SAID CENTER LINE OF HIGHWAY RIGHT OF WAY THROUGH A CENTRAL ANGLE OF 9°25'49" A DISTANCE OF 822.95 FEET TO ENGINEERS STATION 386 PLUS 40.79 AS SHOWN ON THE MAP OF SAID 100 FOOT HIGHWAY RIGHT OF WAY OF ROAD XI-SD-2B ON FILE IN THE OFFICE OF THE DISTRICT STATE OF HIGHWAY ENGINEER, SAID ENGINEER'S STATION BEING AT A POINT IN SAID CURVE WHICH A RADIAL LINE THERETO BEARS NORTH 62°32'59" EAST; 01-0228360 SAID ENGINEER'S STATION BEING ALSO A POINT ON A PORTION OF THE NORTHWESTERLY LINE OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN A DEED TO SAN DIEGO GAS & ELECTRIC COMPANY, A CORPORATION, RECORDED IN BOOK 4456, PAGE 49 OF OFFICIAL RECORDS, SAID LAS DESCRIBED LINE BEING ALSO THE SOUTHEASTERLY LINE OF THAT CERTAIN PORTION OF LAND DESCRIBED IN PARCEL 1 OF A DEED TO PAUL ECKE, ET UX, RECORDED IN BOOK 2778, PAGE 357 OF OFFICIAL RECORDS; THENCE FROM SAID CENTER LINE ENGINEER'S STATION 386 PLUS 40.79 NORTH 72°21'30" EAST ALONG THE NORTHWESTERLY LINE OF THE SAID SAN DIEGO GAS & ELECTRIC COMPANY PROPERTY ABOVE DESCRIBED, AND ALONG THE SOUTHEASTERLY LINE OF THE SAID ECKE PROPERTY ABOVE DESCRIBED A DISTANCE OF 152.16 FEET .TO THE TRUE POINT OF BEGINNING OF THE PROPERTY HEREIN DESCRIBED; THENCE FROM SAID TRUE POINT OF BEGINNING SOUTH 5°52'30" EAST, 233.20 FEET; THENCE SOUTH 65°17'40" WEST, 70 FEET TO A POINT ON THE CENTER LINE OF THE ABOVE DESCRIBED 100 FOOT STATE HIGHWAY RIGHT OF WAY. SAID PQINT BEING THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 5000 FEET, SAID POINT BEING SHOWN AS ENGINEER'S STATION 384 PLUS 01.27 ON SAID MAP OF SAID 100 FOOT RIGHT OF WAY; THENCE CONTINUING SOUTH 65°17'40" WEST TO THE MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN; THENCE NORTHWESTERLY ALONG SAID MEAN HIGH TIDE LINE TO THE NORTHWESTERLY CORNER OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN A DEED TO SAN DIEGO GAS & ELECTRIC COMPANY, RECORDED IN BOOK 4456, PAGE 49 OF SAID OFFICIAL RECORDS, SAID CORNER BEING ALSO THE SOUTHWESTERLY CORNER OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN PARCEL 1 OF A DEED TO PAUL ECKE ET UX, RECORDED IN BOOK 2778, PAGE 357 OF OFFICIAL RECORDS; THENCE NORTH 72°21'30" EAST ALONG THE NORTHWESTERLY LINE OF THE SAID SAND DIEGO GAS & ELECTRIC COMPANY PROPERTY ABOVE DESCRIBED TO THE TRUE POINT OF BEGINNING. EXCEPTION PARCEL 10: (PARCEL 2 OF 90-9473) THAT PORTION OF LOT H OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY OF SAN DIEGO NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS: COMMENCING AT POINT "A" DESCRIBED IN PARCEL 1 OF THE GRANT DEED RECORDED AS FILE NO. 1990-9473; THENCE ALONG THE CENTER LINE OF SAID CARLSBAD BOULEVARD, 100 FEET IN WIDTH (FORMERLY US HWY 101) AS SHOWN AND DELINEATED ON SAID RECORD OF SURVEY MAP NO. 1806, SOUTH 36°52'50" EAST 391.75 FEET TO THE BEGINNING OF A TANGENT 5000.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 12°10'30", A DISTANCE OF 1062.47 FEET; THENCE NONTANGENT AND LEAVING SAID CENTER LINE SOUTH 65°17'40" WEST, 50.00 FEET TO THE TRUE POINT OF BEGINNING, SAID TRUE POINT OF BEGINNING BEING A POINT ON THE SOUTHWESTERLY LINE OF SAID CARLSBAD BOULEVARD; THENCE FROM SAID 01-0228360 TRUE POINT OF BEGINNING CONTINUING SOUTH 65°17'40" WEST, 94.54 FEET TO A POINT ON THE ORDINARY HIGH WATER MARK, AS ESTABLISHED BY A SURVEY FILED AND APPROVED ON DECEMBER 22, 1953 BY THE STATE LANDS COMMISSION, DIVISION OF STATE LANDS, STATE OF CALIFORNIA; THENCE ALONG SAID ORDINARY HIGH WATER MARK, SOUTH 25°40'37" EAST, 335.49 FEET; SOUTH 22°26'51" EAST 572.13 FEET; SOUTH 19°54'35" EAST, 184.39 FEET AND SOUTH 21°45'06" EAST 68.19 FEET; THENCE LEAVING SAID ORDINARY HIGH WATER MARK, NORTH 65°17'40" EAST, 130.33 FEET TO A POINT ON SAID SOUTHWESTERLY LINE OF CARLSBAD BOULEVARD; THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 24°42'20' WEST, 1159.00 FEET TO THE TRUE POINT OF BEGINNING. RESERVING FROM THE HEREINABOVE DESCRIBED PROPERTY EASEMENTS TO FACILITATE ACCESS TO, AND THE USE AND MAINTENANCE OF THE PROPERTY AND THE CONTINUED OPERATION OF CERTAIN SDG&E OPERATIONS EQUIPMENT LOCATED ON SAID PROPERTY, AS SET FORTH IN THE "EASEMENT AND COVENANT AGREEMENT" EXECUTED BY SAN DIEGO GAS AND ELECTRIC COMPANY AND CABRILLO POWER I LLC, A DELAWARE LIMITED LIABILITY COMPANY, AND RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267 OF OFFICIAL RECORDS. PARCEL "C": PORTION OF APN 210 010 32 (PARCEL 2 OF CERTIFICATE OF COMPLIANCE RECORDED AS FILE NO. 78-392949) (PARCEL 4 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789068 OF OFFICIAL RECORDS AND PARCEL 7 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789072 OF OFFICIAL RECORDS) 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, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LAND DESCRIBED IN DEED TO SAN DIEGO GAS AND ELECTRIC COMPANY RECORDED OCTOBER 8, 1948 IN BOOK 2974, PAGE 493 OF OFFICIAL RECORDS; THENCE ALONG THE EASTERLY PROLONGATION OF THE NORTHERLY LINE THEREOF NORTH 72°57'29" EAST (RECORD NORTH 72°25' EAST PER DEED) 100.46 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF THE LAND CONVEYED TO SAN DIEGO GAS AND ELECTRIC COMPANY BY DEED FROM W.D. CANNON RECORDED JANUARY 21, 1953 AS DOCUMENT 9010 IN BOOK 4722, PAGE 350 OF OFFICIAL RECORDS, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID SOUTHWESTERLY LINE SOUTH 22°31'09" EAST 2806.13 FEET TO AN ANGLE POINT IN SAID LAND; THENCE NORTH 67°29'33" EAST (RECORD NORTH 66°53'10" EAST PER SAID DEED), 60.00 FEET; THENCE TO AND ALONG THE SOUTHWESTERLY LINE OF THE LAND DESCRIBED IN DEED TO JAPATUL CORPORATION RECORDED 01-0228360 SEPTEMBER 13, 1973 AS FILE NO. 73-257463 OF SAID OFFICIAL RECORDS, NORTH 22°31'09" EAST 708.00 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG THE NORTHWESTERLY LINE OF SAID JAPATUL LAND NORTH 67°29'33" EAST (RECORD NORTH 66°54'10" EAST PER SAID DEED) 517.56 FEET TO THE NORTHEAST CORNER THEREOF; THENCE ALONG THE WESTERLY LINE OF CALIFORNIA STATE HIGHWAY ll-SD-5 AS DESCRIBED IN DEED RECORDED MARCH 20, 1969 AS FILE NO. 48604 OF OFFICIAL RECORDS AS FOLLOWS: NORTH 01°06'33" EAST 116.34 FEET; NORTH 17037'17" EAST 8.78 FEET; NORTH 50°38'43" WEST 23.85 FEET; NORTH 16°28'36" WEST 100.02 FEET; NORTH 21°19'34" WEST 197.26 FEET; NORTH 25°57'04" WEST 100.19 FEET; NORTH 22831'32" WEST 1,573.66 FEET; NORTH 22°08'49" WEST 239.43 FEET; NORTH 12°35'03" WEST 424.87 FEET; AND NORTH 17°22'30" WEST 202.94 FEET; THENCE LEAVING SAID WESTERLY LINE SOUTH 81°50'51" WEST 19.18 FEET; THENCE NORTH 86°55'09" WEST 332.00 FEET; THENCE SOUTH 79°16'51" WEST 285.00 FEET; THENCE NORTH 69°13'09" WEST 38.00 FEET; THENCE NORTH 40°50'09" WEST 63.50 FEET; THENCE SOUTH 30°27'51" WEST 35.00 FEET; THENCE SOUTH 61°22'51" WEST 13.61 FEET TO THE EXISTING EASTERLY RIGHT OF WAY LINE OF THE ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY; THENCE ALONG SAID LINE SOUTH 22e31'09" EAST 302.87 FEET TO THE BEGINNING OF A NON-TANGENT 1005.37 FOOT RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 88°00'52" EAST; SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03°14'10" A DISTANCE OF 56.78 FEET AND NON-TANGENT TO SAID CURVE SOUTH 22°31'09" EAST 786.71 FEET TO THE TRUE POINT OF BEGINNING. RESERVING FROM THE HEREINABOVE DESCRIBED PROPERTY EASEMENT TO FACILITATE ACCESS TO AND THE USE AND MAINTENANCE OF THE PROPERTY AND THE CONTINUED OPERATION OF CERTAIN SDG&E OPERATIONS EQUIPMENT LOCATED ON SAID PROPERTY, AS SET FORTH IN THE "EASEMENT AND COVENANT AGREEMENT" EXECUTED BY SAN DIEGO GAS AND ELECTRIC COMPANY AND CABRILLO POWER I LLC, A DELAWARE LIMITED LIABILITY COMPANY RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267 OF OFFICIAL RECORDS. PARCEL "D": PORTION OF APN 210 010 36 (PARCEL 1 OF CERTIFICATE OF COMPLIANCE RECORDED AS FILE NO. 78-430841) (PORTION OF PARCEL 3 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789067 OF OFFICIAL RECORDS; ALL OF PARCEL 4 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789068 OF OFFICIAL RECORDS; ALL OF PARCEL 5 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789069 OF OFFICIAL RECORDS; ALL OF PARCEL 6 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789070 OF OFFICIAL RECORDS) 12. 01-0228360 THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE 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, 1896, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF THE MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN WITH THE WESTERLY PROLONGATION OF A LINE WHICH IS PARALLEL WITH AND DISTANT 2000 FEET AT RIGHT ANGLES SOUTHERLY FROM THE SOUTHERLY LINE OF BLOCK "V" OF PALISADES NO. 2, ACCORDING TO MAP THEREOF NO. 1803, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY AUGUST 25, 1924, THE BEARING OF WHICH PARALLEL LINE AND ITS WESTERLY PROLONGATION THEREOF IS RECORDED AS NORTH 72°25' EAST ON SAID MAP OF SAID PALISADES NO. 2, THENCE FROM SAID POINT OF INTERSECTION NORTH 72°25' EAST ALONG SAID PARALLEL LINE AND THE PROLONGATION THEREOF, TO THE WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS SAID RIGHT OF WAY WAS ESTABLISHED ON SEPTEMBER 22, 1948; THENCE SOUTHERLY ALONG SAID WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY A DISTANCE OF 2755.18 FEET TO A POINT; THENCE SOUTH 66°54'10" WEST TO THE MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN, SAID LAND NAMED COURSE AND BEARING BEING PARALLEL WITH THE LOCATION AND PROLONGATION OF THAT COURSE, IN THE SOUTHERLY BOUNDARY OF THE LAND DESCRIBED IN QUITCLAIM DEED FROM PAUL ECKE, ET UX, TO GROVER C. JACOBSEN ET AL RECORDED APRIL 29, 1948 AS DOCUMENT NO. 43667 IN BOOK 2778, PAGE 341 OF OFFICIAL RECORDS, DESIGNATED AS "NORTH 66°54'10" EAST 1770 FEET; AS SAID LOCATION AND PROLONGATION OF SAID COURSE WAS MONUMENTED ON THE GROUND ON SEPTEMBER 22, 1948; THENCE NORTHWESTERLY ALONG THE SAID MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE PROPERTY CONVEYED BY W.D. CANNON ET AL TO SAN DIEGO GAS AND ELECTRIC COMPANY BY DEED RECORDED OCTOBER 8, 1948, IN BOOK 2794, AT PAGE 493 OF OFFICIAL RECORDS OF THE COUNTY OF SAN DIEGO; THENCE SOUTH 66°54'10" WEST ALONG THE SOUTHERLY LINE OF PROPERTY SO CONVEYED TO SAN DIEGO GAS AND ELECTRIC COMPANY A DISTANCE OF 1242.57 FEET, MORE OR LESS, TO A POINT ON THE WESTERLY LINE OF 100 FOOT STATE HIGHWAY RIGHT OF WAY AS ESTABLISHED ON SEPTEMBER 28, 1948, WHICH POINT IS THE TRUE POINT OF BEGINNING OF THE PROPERTY HEREIN DESCRIBED; THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID 100 FOOT STATE HIGHWAY RIGHT OF WAY 660 FEET; THENCE LEAVING SAID WESTERLY LINE OF 100 FOOT STATE HIGHWAY RIGHT OF WAY SOUTH 66°54'10" WEST PARALLEL WITH THE SOUTHERLY LINE OF THE PROPERTY CONVEYED TO THE SAN DIEGO GAS AND ELECTRIC COMPANY ABOVE DESCRIBED TO THE MEAN HIGH TIDE LINE OF THE PACIFIC OCEAN; THENCE SOUTHERLY ALONG SAID MEAN HIGH TIDE LINE TO AN INTERSECTION WITH THE SOUTHERLY LINE OF THE PROPERTY CONVEYED TO THE SAN DIEGO GAS AND ELECTRIC COMPANY ABOVE DESCRIBED; 01-0228360 THENCE NORTH 66°54'10" EAST ALONG SAID SOUTHERLY LINE TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM, PARCEL 2 OF 90-9473 DESCRIBED AS THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY OF SAN DIEGO NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS: COMMENCING AT POINT "A" DESCRIBED IN PARCEL 1 OF THE GRANT DEED RECORDED AS FILE NO. 1990-9473; THENCE ALONG THE CENTER LINE OF SAID CARLSBAD BOULEVARD, 100 FEET IN WIDTH, (FORMERLY US HWY 101) AS SHOWN AND DELINEATED ON SAID RECORD OF SURVEY MAP NO. 1806, SOUTH 36°52'50" EAST 391.75 FEET TO THE BEGINNING OF A TANGENT 5000.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY .ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 12°10'30", A DISTANCE OF 1062.47 FEET; THENCE NONTANGENT AND LEAVING SAID CENTER LINE SOUTH 65°17'40" WEST, 50.00 FEET TO THE TRUE POINT OF BEGINNING, SAID TRUE POINT OF BEGINNING BEING A POINT ON THE SOUTHWESTERLY LINE OF SAID CARLSBAD BOULEVARD; THENCE FROM SAID TRUE POINT OF BEGINNING CONTINUING SOUTH 65°17'40" WEST 94.54 FEET TO A POINT ON THE ORDINARY HIGH WATER MARK, AS ESTABLISHED BY A SURVEY FILED AND APPROVED ON DECEMBER 22, 1953 BY THE STATE LANDS COMMISSION, DIVISION OF STATE LANDS, STATE OF CALIFORNIA; THENCE ALONG SAID ORDINARY HIGH WATER MARK, SOUTH 25°40'37" EAST, 335.49 FEET; SOUTH 22°26'51" EAST 572.13 FEET; SOUTH 19°54;35" EAST, 184.39 FEET AND SOUTH 21°45'06" EAST 68.19 FEET; THENCE LEAVING SAID ORDINARY HIGH WATER MARK, NORTH 65°17'40" EAST 130.33 FEET TO A POINT ON SAID SOUTHWESTERLY LINE OF CARLSBAD BOULEVARD; THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 24°42'20" WEST, 1159.00 FEET TO THE TRUE POINT OF BEGINNING. RESERVING FROM THE HEREINABOVE DESCRIBED PROPERTY EASEMENTS TO FACILITATE ACCESS TO AND THE USE AND MAINTENANCE OF THE PROPERTY AND THE CONTINUED OPERATION OF CERTAIN SDG&E OPERATIONS EQUIPMENT LOCATED ON SAID PROPERTY, AS SET FORTH IN THE "EASEMENT AND COVENANT AGREEMENT" EXECUTED BY SAN DIEGO GAS AND ELECTRIC COMPANY AND CABRILLO POWER I LLC, A DELAWARE LIMITED LIABILITY COMPANY RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267 OF OFFICIAL RECORDS. PARCEL "E": APN 210 010 24 (66-6700/ECKE) (PORTION OF PARCEL 3 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS FILE NO. 2001-0789067 OF OFFICIAL RECORDS) ALL THAT PORTION OF LOT "H" IN RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE 01-0228360 OF THE RECORDER OF SAID COUNTY OF SAN DIEGO, NOVEMBER 16, 1896, SITUATED WITHIN THAT PORTION THEREOF DESCRIBED IN DEED TO SAN DIEGO COUNTY WATER COMPANY, RECORDED JUNE 17, 1940 IN BOOK 1035, PAGE 301 OF OFFICIAL RECORDS OF SAID COUNTY OF SAN DIEGO AS DOCUMENT NO. 28815, BOUNDED AND DESCRIBED AS FOLLOWS: COMMENCING AT CORNER NO. 1 OF SAID RANCHO AGUA HEDIONDA, ACCORDING TO LICENSED SURVEY MAP NO. 173, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 16, 1913; THENCE SOUTH 78°03" EAST, ALONG THE NORTHERLY BOUNDARY LINE OF LOT "H" OF SAID RANCHO AGUA HEDIONDA, A DISTANCE OF 92.06 FEET TO A POINT OF INTERSECTION WITH THE CENTER LINE OF THAT CERTAIN 100 FOOT WIDE RIGHT OF WAY GRANTED TO THE STATE OF CALIFORNIA BY DEED RECORDED AUGUST 30, 1935, IN BOOK 432 AT PAGE 60 OF SAID OFFICIAL RECORDS, AS DOCUMENT NO. 46278; THENCE LEAVING SAID NORTHERLY BOUNDARY LINE OF LOT "H", SOUTH 36°52'50" EAST (SOUTH 36°57'30" EAST, RECORD PER MAP OF CALIFORNIA STATE HIGHWAY XI-SD-2-B, AS SHOWN ON SHEET 18 OF 29 SHEETS, APPROVED DECEMBER 26, 1933, ON FILE IN THE DEPARTMENT OF PUBLIC WORKS, DIVISION OF HIGHWAYS, SACRAMENTO, CALIFORNIA, OLD HIGHWAY 101, NOW KNOWN AS CARLSBAD BOULEVARD) A DISTANCE OF 677.05 FEET TO A POINT OF INTERSECTION OF SAID CENTER LINE WITH THE SOUTHERLY LINE OF THAT CERTAIN PORTION OF SAID LOT "H" DESCRIBED IN DEED TO SAN DIEGO GAS AND ELECTRIC COMPANY RECORDED APRIL 15, 1953 IN BOOK 4821 AT PAGE 199 OF SAID OFFICIAL RECORDS AS DOCUMENT NO. 51679, SAID POINT OF INTERSECTION BEING THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 5000.00 FEET, SAID POINT OF INTERSECTION BEING THE TRUE POINT OF BEGINNING OF THE LAND HEREIN DESCRIBED IN PARCEL 1; THENCE NORTH 53°07'10" EAST ALONG THE SOUTHERLY BOUNDARY LINE OF SAID ABOVE DESCRIBED SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND, BEING ALSO ALONG THE NORTHEASTERLY PROLONGATION OF A RADIAL LINE OF SAID TANGENT CURVE, A DISTANCE OF 50.00 FEET TO AN ANGLE POINT IN THE BOUNDARY LINE OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND; THENCE SOUTHEASTERLY ALONG THE SOUTHWESTERLY BOUNDARY LINE OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND SOUTH 45°31'16" EAST, A DISTANCE OF 504.48 FEET TO A POINT IN THE ARC OF A NON-TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 5150.00 FEET, A RADIAL LINE OF SAID CURVE PASSING THROUGH SAID POINT BEARS NORTH 58"40'37" EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE, BEING ALSO THE SOUTHWESTERLY BOUNDARY LINE OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND, THROUGH A CENTRAL ANGLE OF 4°09'40", A DISTANCE OF 374.01 FEET TO THE MOST SOUTHERLY CORNER OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND SAID MOST SOUTHERLY CORNER BEING ALSO A POINT IN THE NORTHWESTERLY BOUNDARY LINE OF THAT CERTAIN PORTION OF SAID LOT "H" DESCRIBED IN DEED TO SAN DIEGO GAS AND ELECTRIC COMPANY RECORDED MAY 2, 1952 IN BOOK 4456 AT PAGE 49 OF SAID OFFICIAL RECORDS AS DOCUMENT NO. 54338; THENCE SOUTH 5°52'30" EAST, ALONG THE WESTERLY BOUNDARY LINE OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND DESCRIBED IN £>f= IU 01-0228360 BOOK 4456, PAGE 49, A DISTANCE OF 233.20 FEET TO AN ANGLE POINT THEREIN; THENCE SOUTH 65°17'40" WEST, ALONG THE NORTHWESTERLY LINE OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND DESCRIBED IN BOOK 4456, PAGE 49, A DISTANCE OF 70.00 FEET TO A POINT OF INTERSECTION WITH THE CENTER LINE OF SAID 100.00 FOOT WIDE RIGHT OF WAY GRANTED TO SAID STATE OF CALIFORNIA RECORDED IN BOOK 432 AT PAGE 60, SAID POINT OF INTERSECTION BEING ANOTHER POINT IN THE ARC OF SAID TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 5000.00 FEET, A RADIAL LINE OF SAID CURVE PASSING THROUGH SAID POINT BEARS NORTH 65°17'40" EAST; THENCE LEAVING SAID NORTHWESTERLY BOUNDARY LINE OF SAID SAN DIEGO GAS AND ELECTRIC COMPANY'S LAND DESCRIBED IN BOOK 4456, PAGE 49 NORTHWESTERLY , ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 12°10'30", A DISTANCE OF 1062.47 FEET TO THE TRUE POINT OF BEGINNING OF PARCEL 1. RESERVING FROM THE HEREINABOVE DESCRIBED PROPERTY EASEMENTS TO FACILITATE ACCESS TO, AND THE USE AND MAINTENANCE OF THE PROPERTY AND THE CONTINUED OPERATION OF CERTAIN SDG&E OPERATIONS EQUIPMENT LOCATED ON SAID PROPERTY, AS SET FORTH IN THE "EASEMENT AND COVENANT AGREEMENT EXECUTED BY SAN DIEGO GAS AND ELECTRIC COMPANY AND CABRILLO POWER I LLC, A DELAWARE LIMITED LIABILITY COMPANY RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267 OF OFFICIAL RECORDS. PARCEL "F": (EASEMENT) (BOOK 4968 PAGE 560/PATTERSON) AN EASEMENT FOR PURPOSES OF THE INTAKE AND DISCHARGE OF WATER AND FOR DREDGING ACTIVITIES AS MORE FULLY DESCRIBED IN THE EASEMENT AND COVENANT AGREEMENT RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY IN AND TO ALL OF BLOCK "W" OF PALISADES UNIT NO. 2 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1803, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, AUGUST 25, 1924; EXCEPTING THEREFROM, THE NORTHEASTERLY 300 FEET OF THE NORTHWESTERLY 100 FEET THEREOF; ALSO EXCEPTING THE NORTHWESTERLY 120 FEET OF SAID BLOCK "W" LYING SOUTHWESTERLY OF THE SOUTHWESTERLY LINE OF SAID NORTHEASTERLY 300 FEET AND THE SOUTHEASTERLY PROLONGATION OF SAID SOUTHWESTERLY LINE. PARCEL "G": EASEMENT (82-175943/ECKE) AN EASEMENT FOR PURPOSES OF THE INTAKE AND DISCHARGE OF WATER 01-0228360 AND FOR DREDGING ACTIVITIES AS MORE FULLY DESCRIBED IN THE EASEMENT AND COVENANT AGREEMENT RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY IN AND TO THAT PORTION OF RANCHO AGUA HEDIONDA, IN THE CITY 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 SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY CORNER OF LOT 7, IN BLOCK "V" OF PALISADES NO. 2, ACCORDING TO MAP THEREOF NO. 1803, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID CORNER ALSO BEING THE NORTHWESTERLY CORNER OF LAND DESCRIBED IN A DEED TO THE ATKINSON, TOPEKA AND SANTA FE RAILROAD COMPANY, RECORDED SEPTEMBER 13, 1948 AS FILE NO. 90581 IN BOOK 2944, PAGE 74 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID RAILROAD COMPANY LAND, SOUTH 29°16'08" EAST TO THE MOST NORTHEASTERLY' CORNER OF LAND DESCRIBED IN DEED TO SAN DIEGO GAS & ELECTRIC COMPANY, RECORDED APRIL 15, 1953 AS FILE NO. 51679IN BOOK 4821, PAGE 198 OF OFFICIAL RECORDS; THENCE ALONG THE NORTHEASTERLY LINE OF SAID SAN DIEGO GAS & ELECTRIC COMPANYLAND NORTH 76°46'00" WEST, 931.69 FEET AND NORTH 30°48'00" WEST, 238.36 FEET TO A POINT IN THE SOUTHERLY LINE OF BLOCK "W"OF SAID MAP NO. 1803, THENCE ALONG SAID SOUTHERLY LINE SOUTH 78°03'00" EAST (RECORD SOUTH 78°02'00" EAST PER MAP NO. 1803)TO THE MOST EASTERLY CORNER OF SAID LOT W, BEING A DISTANCE OF 135 FEET MORE OR LESS, SAID MOST WESTERLY CORNER ALSO BEING A POINT ON THE SOUTHERLY BOUNDARY OF SAID MAP NO. 1803; THENCE ALONG SAID SOUTHERLY BOUNDARY OF SAID MAP NO. 1803 TO THE POINT OF BEGINNING. PARCEL "H»: (EASEMENT) AN EASEMENT FOR THE PURPOSES OF THE INTAKE AND DISCHARGE OF WATER AND FOR DREDGING ACTIVITIES AS MORE FULLY DESCRIBED IN THE EASEMENT AND COVENANT AGREEMENT RECORDED MAY 21, 1999 AS FILE NO. 1999-0347267, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY IN AND TO THAT PORTION OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF PARCEL A OF A CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 22, 1995 AS FILE NO. 1995-0532900; THENCE ALONG THE NORTHEASTERLY LINE THEREOF SOUTH 33°44'36" EAST 1290.81 FEET; THENCE SOUTH 71°40'52" EAST 1586.90 FEET; THENCE SOUTH 53°19'03" EAST 893.14 FEET; THENCE SOUTH 64°01'56" EAST, 2257.42 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 08°21'57" EAST, 182.60 FEET; THENCE 01-0228360 SOUTH 83°25'06" WEST, 313.69 FEET; THENCE SOUTH 62°01'07" WEST, 160.23 FEET; THENCE NORTH 76°53'47" WEST, 269.28 FEET; THENCE SOUTH 55°39'33" WEST 391.01 FEET; THENCE SOUTH 66°59'23" WEST, 594.40 FEET; THENCE SOUTH 87°02'46" WEST 210.53 FEET THENCE NORTH 64°43'30" WEST, 244.66 FEET; THENCE NORTH 74°31'19" WEST, 186.69 FEET; THENCE NORTH 17°29'43" WEST, 220.16 FEET ; THENCE NORTH 83°34'03" WEST, 514.52 FEET; THENCE NORTH 80°57'43" WEST, 209.62 FEET; THENCE NORTH 72°35'04 WEST 308.66 FEET; THENCE NORTH 45°17'25" WEST, 291.62 FEET; THENCE NORTH 53e58'34" WEST, 226.98 FEET; THENCE NORTH 64°17'22" WEST, 177.48 FEET, THENCE NORTH 70°53'29" WEST, 346.91 FEET; THENCE NORTH 48°58'53" WEST, 87.04 FEET TO THE NORTHEASTERLY CORNER OF CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 1, 1985 AS FILE NO. 85-411922; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 72°33'23" WEST, 186.00 FEET; THENCE NORTH 78°46'23n WEST, 238.00 FEET; THENCE NORTH 66°17'23" WEST, 172.00 FEET, THENCE NORTH 30°00'23" WEST, 23.00 FEET; THENCE NORTH 89°22'23" WEST, 24.00 FEET; THENCE NORTH 57°13'53" WEST, 275.40 FEET; THENCE NORTH 35°27'23" WEST, 430.00 FEET; THENCE NORTH 15°34'23" WEST, 252.00 FEET; THENCE NORTH 27°12'23" WEST 168.99 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF CALIFORNIA STATE HIGHWAY XI-SD-2B (1-5); THENCE ALONG SAID RIGHT OF WAY NORTH 11°13'43" EAST, 92.85 FEET; THENCE NORTH 03009/38" WEST, 1172.51 FEET; THENCE NORTH 17°49'10" WEST, 59.67 FEET; THENCE LEAVING SAID RIGHT OF WAY LINE NORTH 64°10'39" EAST, 567.13 FEET. PARCEL "I": (LEASEHOLD) (FUEL OIL PIPELINE) PARCEL 1: A STRIP OF TIDE AND SUBMERGED LAND 60.00 FEET IN WIDTH, EXTENDING INTO THE PACIFIC OCEAN, AND LOCATED APPROXIMATELY ONE MILE SOUTH OF THE CITY OF CARLSBAD, SAN DIEGO COUNTY, CALIFORNIA, AND LYING 30.00 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT CORNER NUMBER 1 OF THE RANCHO AGUA HEDIONDA, ACCORDING TO MAP 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, NOVEMBER 16, 1896; THENCE SOUTH 26°07'53" EAST 3,450.26 FEET TO THE CENTER LINE OF THE EXISTING 60.00 FOOT WIDE PIPELINE RIGHT OF WAY AND THE TRUE POINT OF BEGINNING OF THE CENTER LINE HEREIN DESCRIBED; THENCE SOUTH 66°57'20" WEST 2,622.43 FEET TO A POINT HEREIN DESIGNATED POINT "A". THE SIDE LINE OF THE ABOVE DESCRIBED STRIP OF LAND, SHALL BE EXTENDED AND SHORTENED SO THAT SAID LINES FORM A CONTINUOUS STRIP TERMINATING IN THE WEST IN A LINE PASSING THROUGH SAID POINT "A" WITH A BEARING SOUTH 32°48'40" EAST. 01-0228360 PARCEL 2: A PARCEL OF SUBMERGED LAND LYING WITHIN THE PACIFIC OCEAN APPROXIMATELY ONE MILE SOUTH OF THE CITY OF CARLSBAD, SAN DIEGO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE AFOREMENTIONED POINT "A" OF PARCEL 1; THENCE FORM SAID POINT "A" THE FOLLOWING TEN COURSES: (1) SOUTH 32°48'40" EAST 432.16 FEET; (2) SOUTH 22022'28n WEST 909.37 FEET; (3) SOUTH 67°45'09" WEST 644.59 FEET; (4) SOUTH 73°09'24" WEST 452.60 FEET ; (5) NORTH 41°00'06n WEST 1,099.62 FEET; (6) NORTH 00°18'40" WEST 600.00 FEET; (7) NORTH 42°36'15" EAST 1,032.50 FEET; (8) SOUTH 74°46'44" EAST 452.60 FEET; (9) SOUTH 68°52'29" EAST 598.32 FEET; THENCE (10) SOUTH 32848'40" EAST 328.38 FEET TO THE POINT OF BEGINNING. PARCEL "J": (LICENSE) UNRECORDED DOCUMENT DATED 3/31/99 A LICENSE FOR CONDUIT CROSSING TO CROSS THE RIGHT OF WAY AND TRACKS OF THE RAILWAY COMPANY AT THE LOCATION AND MANNER SHOWN UPON THE PRINT ATTACHED TO THE UNRECORDED "COMBINED LICENSE, COST AND MAINTENANCE AGREEMENT FOR THE ENCINA POWER PLANT PRIVATE RAILROAD CROSSING CITY OF CARLSBAD, CALIFORNIA" DATED MARCH 31, 1999, EXECUTED BY NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD IN FAVOR OF SAN DIEGO GAS & ELECTRIC COMPANY PARCEL "K": (LICENSE) UNRECORDED DOCUMENT DATED 3/31/99 A LICENSE FOR PIPE LINE TO CARRY OIL, GAS, FUEL, STEAM, WATER, AIR AND AS A PEDESTRIAN WALKWAY AND VARIOUS SIZES OF CARRIER PIPE AS ILLUSTRATED IN EXHIBIT A ATTACHED TO THE UNRECORDED "RAILROAD RIGHT-OF-WAY LICENSE" EXECUTED BY NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT IN FAVOR OF THE SAN DIEGO GAS AND ELECTRIC COMPANY DATED MARCH 31, 1999. PARCEL "L": (LICENSE) A LICENSE FOR TRACK OR TRACK EXTENSION AS DESCRIBED IN THE UNRECORDED "CONTRACT FOR INDUSTRY TRACK", EXECUTED BY ATCHISON, TOPEKA AND- SANTA FE RAILWAY COMPANY IN FAVOR OF SAN DIEGO GAS AND ELECTRIC COMPANY DATED OCTOBER 30, 1953. \4 01-0228360 PARCEL M: (LEASEHOLD) 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, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF BLOCK W OF PALISADES NUMBER TWO ACCORDING TO MAP THEREOF NO. 1803, FILED IN THE OFFICE OF SAID COUNTY RECORDER, AUGUST 25, 1924, THENCE ALONG A LINE COMMON TO SAID BLOCK W AND LOT H, NORTH 77°27'54" WEST, 1149.56 FEET (RECORD 1149.32 FEET PER RECORD OF SURVEY NO. 18.06) TO CORNER NO. 1 OF SAID RANCHO AGUA HEDIONDA; THENCE SOUTH 33°30'17" EAST 4,468.33 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 22°36'12" EAST 159.25 FEET; THENCE SOUTH 67°23'48" WEST 249.00 FEET; THENCE NORTH 22°36'12" WEST, 54.50 FEET; THENCE SOUTH 67023'48" WEST 35.84 FEET; THENCE NORTH 22°36'12" WEST 191.50 FEET; THENCE NORTH 52°36'46" WEST 72.30 FEET; THENCE NORTH 22°36'12" WEST 33.88 FEET; THENCE NORTH 07°37'30" WEST 57.97 FEET; THENCE NORTH 67°23'48" EAST 18.50 FEET; THENCE SOUTH 22°36'12" EAST 58.38 FEET; THENCE NORTH 67°23'48" EAST 6.92 FEET; THENCE SOUTH 52°29'44" EAST, 35.31 FEET; THENCE NORTH 67°23'48" EAST, 20.00 FEET; THENCE SOUTH 22°36'12n EAST 77.83 FEET; THENCE NORTH 67°23'48" EAST 23.00 FEET; THENCE NORTH 22°36'12" WEST 10.33 FEET; THENCE NORTH 67°23'48" EAST 80.00 FEET; THENCE SOUTH 22°36'12" EAST 51.66 FEET; THENCE NORTH 67°23'48" EAST 14.00 FEET; THENCE SOUTH 22a36'12" EAST 3.00 FEET; THENCE NORTH 67°23'48" EAST 44.75 FEET; THENCE SOUTH 22°36'12" EAST 20.08 FEET; THENCE NORTH 67°23'48" EAST 23.50 FEET; THENCE SOUTH 22°36'12" EAST 8.00 FEET; THENCE NORTH 67°23'48" EAST 57.75 FEET TO THE TRUE POINT OF BEGINNING. PARCEL N: (LEASEHOLD/DISCHARGE CHANNEL) THAT CERTAIN PARCEL OF TIDE AND SUBMERGED LANDS LYING WITHIN THE PACIFIC OCEAN DESCRIBED AS FOLLOWS: COMMENCING AT THE CORNER NO. 1 OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY OF SAN DIEGO; SAID CORNER NO. 1 BEARS NORTH 77°27'25" WEST 1,149.59 FEET FROM AN ANGLE POINT IN THE NORTHERLY LINE OF LOT H OF SAID RANCHO AGUA HEDIONDA; THENCE SOUTH 30°17'50" EAST 3,060.36 FEET; THENCE SOUTH 65°52'36" WEST 137.10 FEET TO A POINT ON THE ORDINARY HIGH WATER MARK AS SURVEYED BY THE CALIFORNIA STATE LANDS COMMISSION IN OCTOBER, 1953, SAID POINT BEING THE TRUE POINT OF 01-0228360 BEGINNING; THENCE ALONG SAID ORDINARY HIGH WATER MARK, NORTH 21°09'41" WEST 95.13 FEET; THENCE SOUTH 65°52'36" WEST 226.46 FEET; THENCE SOUTH 24°07'24" EAST 110.00 FEET; THENCE SOUTH 65°52'36" WEST 60.00 FEET; THENCE SOUTH 24°07'24" EAST 70.00 FEET; THENCE NORTH 65°52'36" EAST 275.00 FEET TO A POINT IN SAID ORDINARY HIGH WATER MARK; THENCE ALONG SAID ORDINARY HIGH WATER MARK, NORTH 19°18'03" WEST 66.09 FEET AND NORTH 21°09'41" WEST 19.17 FEET TO SAID POINT OF BEGINNING. EXCEPTING THEREFROM ANY PORTION LYING LANDWARD OF THE ORDINARY HIGH WATER MARK OF THE PACIFIC OCEAN. PARCEL O: (LEASEHOLD/DREGDE SPOILS) A STRIP OF TIDE AND SUBMERGED LAND IN THE PACIFIC OCEAN BOUNDED ON THE NORTH EAST BY THE ORDINARY HIGH WATER MARK OF THEPACIFIC OCEAN"AND ON THE SOUTHWEST BY A LINE soo FEET SOUTHWEST OF AND PARALLEL TO SAID ORDINARY HIGH WATER MARK AND EXTENDING FROM THE NORTH LINE OF CARLSBAD BEACH STATE PARK AS SAID NORTH LINE IS DESCRIBED IN DEED RECORDED IN BOOK 230, PAGE 308 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY, SOUTHEASTERLY 8900 FEET. PARCEL P: [LEASEHOLD/JETTIES AND CHANNEL] A STRIP OF TIDE AND SUBMERGED LAND IN AN AREA 364.00 FEET IN WIDTH EXTENDING INTO THE PACIFIC OCEAN FROM THE ORDINARY HIGH-WATER MARK AS ESTABLISHED BY SURVEY IN OCTOBER, 1953, THE SIDE LINES OF WHICH LIE 197.00 FEET NORTHWESTERLY AND 167.00 SOUTHEASTERLY RESPECTIVELY, MEASURED AT RIGHT ANGLES, FROM AND PARALLEL TO THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT WHICH BEARS SOUTH 56°18'37" EAST, A DISTANCE OF 197.37 FEET FROM CORNER NO. 1 OF THE RANCHO AGUA HEDIONDA, IN THE 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 ON NOVEMBER 16, 1896; THENCE FROM SAID POINT OF BEGINNING, SOUTH 53°05'45" WEST, A DISTANCE OF 680.00 FEET. PARCEL Q: [LICENSE/RIP-RAP] A LICENSE FOR RIGHT OF ENTRY FOR USE OF REPLACEMENT OF RIP-RAP ALONG AGUA HEDIONDA LAGOON SHOWN IN THE "RAILROAD RIGHT-OF-WAY LICENSE", IN FAVOR OF SAN DIEGO GAS & ELECTRIC COMPANY, A CALIFORNIA CORPORATION LOCATED IN THE AREA SHOWN IN EXHIBIT A OF THE LICENSE DATED MARCH 31, 1999. 01-0228360 PARCEL R: CANNON ACCESS A PERPETUAL, NON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS, UNDERGROUND UTILITIES AND INCIDENTAL PURPOSES THROUGH, OVER AND ACROSS THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PETITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY NOVEMBER 16, 1896, DESCRIBED IN THE EASEMENT GRANT DEED AND AGREEMENT EXECUTED BY WEST DEVELOPMENT, INC., A NEBRASKA CORPORATION, RECORDED APRIL 1, 1999 AS FILE NO. 1999-0217139 OF OFFICIAL RECORDS PARCEL S:OPTION PARCELTHAT PORTION OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TOPARTITION MAP'THEREOF NO. 823, FILED IN THE OFFICE OF THECOUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896,DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF RECORD OF SURVEYNO. 14621 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OFCALIFORNIA, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OFSAN DIEGO COUNTY, AUGUST 14, 1994 AS FILE NO. 1994-500086, SAIDCORNER BEING ON THE WESTERLY LINE OF THE RIGHT OF WAY OF THEATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG SAIDWESTERLY LINE AND EASTERLY LINE OF SAID RECORD OF SURVEY 14621SOUTH 28°40'19" EAST, 656.70 FEET TO THE MOST SOUTHERLY CORNEROF SAID RECORD OF SURVEY NO. 14621; THENCE ALONG THESOUTHWESTERLY LINE THEREOF NORTH 76°09'49" WEST, 931.75 FEET;THENCE NORTH 30°11'52" WEST, 237.60 FEET TO AN ANGLE POINT INSAID SOUTHWESTERLY LINE; THENCE SOUTH 77°27'18" EAST, 134.00FEET TO AN ANGLE POINT IN THE NORTHEASTERLY LINE OF SAID RECORDOF SURVEY NO. 14621; THENCE ALONG SAID NORTHEASTERLY LINE NORTH72°58'27" EAST, 604.85 FEET TO THE POINT OF BEGINNING. PARCEL T OPTION PARCEL THAT PORTION OF LOT H OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF PARCEL A OF A CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 22, 1995 AS FILE NO. 1995-0532900; THENCE ALONG THE NORTHEASTERLY LINE THEREOF SOUTH 33°44'36H EAST, 1290.81 FEET; THENCE SOUTH 71°40'52" EAST, 1586.90 FEET; THENCE SOUTH 53°19'03" EAST, 893.14 FEET; 12. 01-0228360 THENCE SOUTH 64°01'56" EAST 2257.42 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 08°21'57" EAST, 182.60 FEET; THENCE SOUTH 83°25'06" WEST, 313.69 FEET; THENCE SOUTH 62°01'07" WEST, 160.23 FEET; THENCE NORTH 76053'47'' WEST, 269.28 FEET; THENCE SOUTH 55°39'38" WEST 381.01 FEET; THENCE SOUTH 66°59'23" WEST, 594.40 FEET; THENCE SOUTH 87°02'46"WEST, 210.53 FEET; THENCE NORTH 64°43'30" WEST, 244.66 FEET; THENCE NORTH 74°31'19" WEST, 186.69 FEET; THENCE NORTH 17°29'43" WEST, 220.16 FEET; THENCE NORTH 83°34'03" WEST, 514.52 FEET; THENCE NORTH 80°57'43" WEST, 209.62 FEET; THENCE NORTH 72°35'04" WEST, 308.66 FEET; THENCE NORTH 45°17'25" WEST, 291.62 FEET; THENCE NORTH 53°58'34" WEST, 226.98 FEET; THENCE NORTH 64°17'22" WEST, 177.48 FEET; THENCE NORTH 70°53'29" WEST, 346.91 FEET; THENCE NORTH 48°58'53" WEST 87.04 FEET TO THE NORTHEASTERLY CORNER OF CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 1, 1985 AS FILE NO. 85-411922; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 72°33'23" WEST 186.00 FEET; THENCE NORTH 78°46'23" WEST, 238.00 FEET; THENCE NORTH 66°17'23" WEST, 23.00 FEET; THENCE NORTH 89°22'23" WEST, 24.00 FEET; THENCE NORTH 57°13'53" WEST, 275.40 FEET; THENCE NORTH 35°27'23" WEST, 430.00 FEET; THENCE NORTH 15°34'23" WEST, 252.00 FEET; THENCE NORTH 27°12'23" WEST, 168.99 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF CALIFORNIA STATE HIGHWAY XI-SD-2B (1-5); THENCE ALONG SAID RIGHT OF WAY NORTH 11°13'43: EAST, 92.85 FEET; THENCE NORTH 03°09'38" WEST, 1172.51 FEET; THENCE NORTH 17°49'10" WEST, 59.67 FEET; THENCE LEAVING SAID RIGHT OF WAY LINE NORTH 64°10'39" EAST, 567.13 FEET. EXCEPTING THEREFROM THAT PORTION OF PARCEL "A" DESCRIBED IN DOCUMENT 1995-0532900 RECORDED NOVEMBER 22, 1995; OFFICIAL RECORDS, BEING A PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING SOUTHERLY AND EASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT ON THE NORTHEASTERLY LINE OF SAID LOT "H", SAID POINT BEARS NORTH 64°01'56n WEST (NORTH 64°42' WEST, OF RECORD) 275.00 FEET FROM "POINT 6" OF LOT "F" OF SAID MAP NO. 823; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 08°21'57" EAST, 182.60 FEET; THENCE SOUTH 83°25'06" WEST, 313.69 FEET; THENCE SOUTH 62°01'07" WEST, 160.23 FEET; THENCE NORTH 76°53'47" WEST, 269.28 FEET; THENCE SOUTH 55°39'38" WEST, 381.01 FEET; THENCE SOUTH 6'6°59'23" WEST, 594.40 FEET; THENCE SOUTH 87°02'46" WEST, 210.53 FEET; THENCE NORTH 64°43'30" WEST, 244.66 FEET; THENCE NORTH 74°31'19" WEST, 186.69 FEET; THENCE NORTH 17°29'43" WEST, 220.16 FEET; THENCE NORTH 83°34'03" WEST, 514.52 FEET; THENCE NORTH 80°57'43" WEST, 209.62 FEET; THENCE NORTH 72°35'04" WEST, 308.66 FEET; THENCE NORTH 45°17'25" WEST, 291.62 FEET; THENCE NORTH 53°38'34" WEST, 226.98 FEET; THENCE NORTH 64°17'22" WEST, 177.48; THENCE NORTH 70°53'29" WEST, IM1 01-0228360 34S.91 FEET; THENCE NORTH 48°58'53" WEST 87.04 FEET TO THE NORTHEASTERLY CORNER OF THE LAND DESCRIBED AS PARCEL 1 OF DOCUMENT NO. 85-411922 RECORDED NOVEMBER 1, 1985, OFFICIAL RECORDS, SAID NORTHEASTERLY CORNER BEING THE NORTHERLY TERMINUS OF A LINE THAT BEARS NORTH 23°05'05" WEST AS DESCRIBED IN SAID PARCEL 1. EXHIBIT "C" LEGAL DESCRIPTION OF THE INTAKE/DISCHARGE EASEMENT AREA data-wp8\dynegy\encina\posddon\docurnents\combined lease and easement agmt\dcc revisions to lease-easement agreemcnt.fina)..doc EXHIBIT 'C' LEGAL DESCRIPTION FOR INTAKE/DISCHARGE 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. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13" WEST, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 248.14 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 23°31'11" EAST, 266.03 FEET; THENCE SOUTH 35°40'18" EAST, 664.53 FEET; THENCE SOUTH 16°11'01" WEST, 361.48 FEET; THENCE SOUTH 72°52'19" WEST, 290.09 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 252.00 FEET; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 40°53'52", 179.88 FEET TO THE BEGINNING OF REVERSE CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 78.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 58°01'33" EAST; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35011'26", 47.91 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67°09'52" WEST, 118.89 FEET; THENCE SOUTH 64°20'56" WEST, 256.56 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, SAID POINT BEING A POINT ON A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 5216.55 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 62054116M WEST; THENCE NORTHERLY, ALONG SAID EASTERLY LINE AND THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 07°54' 17", 719.71 FEET; THENCE TANGENT TO SAID CURVE, ALONG SAID EASTERLY LINE NORTH 19°11'27" WEST, 15.63 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4050.00 FEET; THENCE NORTHERLY, ALONG SAID EASTERLY LINE AND THE ARC OF SAID T:«URVEYU398\Plats\LegaIs\ExibC-lntakeDischarge.doc July 3.2003 JG.. - CURVE, THROUGH A CENTRAL ANGLE OF 01°15'55", 89.43 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 67°31'55n EAST, 52.67 FEET; THENCE NORTH 22°28'05" WEST, 181.42 FEET; THENCE NORTH 67°41'34" EAST, 128.22 FEET; THENCE SOUTH 22°18'261' EAST, 40.00 FEET; THENCE SOUTH 67°41'34" WEST, 88.11 FEET; THENCE SOUTH 22°28105" EAST, 463.52 FEET TO A POINT ON A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 110.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 53°39'06" WEST; THENCE SOUTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 71°16I26", 136.84 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 34°55'31" EAST, 152.63 FEET; THENCE SOUTH 29045118B EAST, 149.21 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE SOUTHERLY AND SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 85°53'45", 67.46 FEET; THENCE TANGENT TO SAID CURVE, NORTH 64°20'56" EAST, 117.37 FEET; THENCE NORTH 67°09'52" EAST, 119.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 38.00 FEET; THENCE EASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35°11'26', 23.34 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 292.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 58°01'33* WEST; THENCE NORTHEASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 40°53'52", 208.43 FEET; THENCE TANGENT TO SAID CURVE, NORTH 72052'19B EAST, 268.52 FEET; THENCE NORTH 16°11'01" EAST, 320.45 FEET; THENCE NORTH 35°40'18" WEST, 649.34 FEET; THENCE NORTH 23°31'11" WEST, 270.91 FEET; THENCE NORTH 67°22'2511 EAST, 40.00 FEET TO THE POINT OP BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT WC-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 3.803 ACRES, MORE OR LESS. GARY L. H§S L.S. 7019 EXPIRATION DATE DATE 6/30/2006 T:\SURVEY\2398\Plats\Legals\ExibC-lnakeDischargexioc July 3,2003 1C.. EXHIBIT «C-1" MAP GENERALLY DEPICTING THE INTAKE/DISCHARGE EASEMENT AREA daa-wp8\dynegy\encina\poseidon\documentsV:ombined lease and easement agmMec revisions to lease-easement agreemenlfinal..doc 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: 210-010-39 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, /.£. N40'39'21*W. LEGEND: INDICATES EXISTING PROPERTY LINE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES INTAKE/DISCHARGE EASEMENT AREA - 3.803 ACRES. MORE OR LESS OWNER: CABRtLLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD. CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 PHONE: (619) 235-6471 VICINITY MAP NO SCALE GARY L HUS. LS. 7019 REGISTRATION EXPIRES 6/30/2006 DATE APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO, CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 INTAKE/ DISCHARGE EASEMENT AREA EXHIBIT•c-r SHEET; OF3 A.P.N. 210-010-39 Ti\SURVtT\a398\Plats\PletCl-lntok«I»*chor9*Sht01.d«g 07/07/2003 0&4&44 PM PUT PARCEL 3 ROS 17350 PARCEL 4 ROS 17350 AT&SF RAILROAD RIGHT-OF-WAY PARCEL 4 ROS 17350 PARCEL 4 CERTIFICATE OF COMPLIANCE RECORDED OCTOBERO. 20O1RO. ^lp.'- 2001-07^9068 PARCEL 6 ROS 17350 SCALE 1" = 400'\ APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO, CALIFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 INTAKE/ DISCHARGE EASEMENT AREA EXHIBIT •C-V SHEET 2 OF J A.P.N. 210-010-39 07/03/2003 0843.04 AH PDT PARCEL 3 ROS 17350 UNEDATA AT&SF RAILROAD RIGHT-OF-WAY NO. LI 12 13 BEARING N1911'27V A/67'Jf '55T N22'28'OS'W DISTANCE 15.63' 5267* 181.42' CURVE DATA NO. ci RADIUS 4050.00' DELTA ons'ss' ARC 89.43' PARCEL 4 ROS 17350 PARCEL 4 CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 3O, 2OO1 FILE NO. 2001-0789068 L-136.84 N64'20'5E APPUCANT: POSEIDON RESOURCES 501 WEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 INTAKE/ DISCHARGE EASEMENT AREA EXHIBIT •C-V SHEET30F J A.P.N. 210-010-39 T'\SURVEY\2398\Pt«1s\PlatCl-Intal<iDlsaiaraeSlTt03.d«8 07/03/2003 OB-43O5 KH PDT EXHIBIT «D" LEGAL DESCRIPTION OF THE PRODUCT WATER PIPELINE EASEMENT AREA daU-wp8\dynegy\encina\poseidon\documentsNcombined lease and easement agmt\dec revisions to lease-easement ogreemenLfinal..doc EXHIBIT 'D' LEGAL DESCRIPTION FOR PRODUCT WATER PIPELINE EASEMENT AREA THAT PORTION OF LOT WH" 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, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47<r WEST, 54.68 FEET TO THE POINT OP BEGINNING; THENCE NORTH 22°37'35"WEST, 320.00 FEET; THENCE NORTH 67°22'25" EAST, 20.00 FEET; THENCE SOUTH 22°37'35"EAST, 816.43i FEET; THENCE SOUTH 15°31'18" EAST, 379.90 FEET; THENCE SOUTH 29058'25" EAST, 433.54 FEET; THENCE SOUTH 22°32'58" EAST, 191.28 FEET; THENCE SOUTH 09°39'03" EAST, 50.72 FEET; THENCE SOUTH 19°02'22" EAST, 157.35 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 4; THENCE ALONG SAID SOUTHERLY LINE NORTH 82040'44n WEST, 27.90 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 19°02'22" WEST, 147.02 FEET; THENCE NORTH 09°39'0311 WEST, 49.95 FEET; THENCE NORTH 22°32'58' WEST, 186.83 FEET; THENCE NORTH 29°58'25" WEST, 434.98 FEET; THENCE NORTH 15°31'44'1 WEST, 381.79 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, 205.27 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'D-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. T:\SURVEY^398\Plats\Legals\E3ubD-ProductWaterPipeline.doc July 3.2003 JG.. SAID PARCEL OF LAND CONTAINS 1.094 ACRES, MORE OR LESS. GARY L. HW33DATE L.S. 7019 EXPIRATION DATE 6/30/2006 T:\SURVEY\2398\Plats\Legab\ExibD-ProductWaterPipdme.dcic July 3.2003 JG.. EXHIBIT «D-1" MAP GENERALLY DEPICTING THE PRODUCT WATER PIPELINE EASEMENT AREA data-wp8\dynegy\encina\poseidon\documents\combined lease and easement agmt\dec revisions to lease-easement agrcement.final.doc LEGAL DESCRIPTION: LEGEND: 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 P.O.C.. OF CARLSBAD, COUNTY OF SAN DIEGO. STATE OF CALIFORNIA. P.O.B.. ASSESSORS PARCEL NO: 210-010-39 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, /.£ N40'39'21'W. INDICATES EXISTING PROPERTY LINE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES PRODUCT WATER PIPELINE EASEMENT AREA - 1094 ACRES, MORE OR LESS OWNER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD, CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE: (619) 235-6471 VICINITY MAP NO SCALE CARYL HUS? LS.7019 REGISTRATION EXPIRES 6/30/2006 DATE APPLICANT: POSEIDON RESOURCES 501 HEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE BOO SAN DIEGO, CALIFORNIA 92101 PRODUCT WATER PIPELINE EASEMENT AREA EXHIBIT 'D-1* SHEET 1 OF 3 A.P.N. 210-010-39 Ti\SURVEY\a398\Plots\PltttDl-ProductWote>-Plpelln«Sht01*io 07/07/S003 PARCEL 4 ROS 17350 PARCEL 3 ROS 17350 N6T29'47*E54.68' -AT&SF RAILROAD RIGHT-OF-WAY \ I PARCEL 4 ROS 17350 PARCEL 4 CERTIFICATE OF COMPLIANCE'' RECOUPED' OCTOBER V$6, 2OO1 FILE NO. 2OO1-O78Ope8',--' jf PARCEL 7 ROS 17350i\ p.o.c. PARCEL 5 ROS 17350 1" m 400' APPLICANT: POSEIDON RESOURCES 50t KSTBROMMY SUITE 840 SAN DIEGO. CAUFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CAUFORNIA 92101 PRODUCT WATER PIPELINE EASEMENT AREA EXHIBIT •D-V SHEET20FJ A.P.N. 210-010-39 Ti\.SUf!VEY\S39e\P1<tl\Platm-Pro«hjC-tViLtrrPipr<i«*Sh'tOa.d»9 07/03/2003 08i4S30 AH POT PARCEL 3 17350 SEE SHEET 4 OF 4 FOR DATA TABLES UNEDATA NO. L1 12 L3 L4 L5 L6 L7 L8 L9 L10 L11 L12 L13 BEARING N15'31'18H/ N29'58'25"W N22'32'58'W NOGWOJ'W N19T)2'22"W N82'40'44'W N19V2'22"W NW&OSV N22"32'58mW N29-S8'25~W N22'37'35"W N20t08'20'W N22'37'35'W DISTANCE 379.90' 433.54' PARCEL 4 ROS 17350 191.28' 50.72' 157.35' 27.90' 147.02' 49.95' 186.83' 434.98' 174.35' 115.20' 205.2/ \^~ AT&SF RAILROAD RIGHT-OF-WAY APPLICANT: POSEIDON RESOURCES 501 KST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PARCEL 4 ROS 17350 PARCEL 4 CERTIFICATE OF COMPLIANCE RECORDED OCTOBER' 30, 2OO^1-;r FILE **"»• -''-*' ADO' PARCEL 7 ROS 17350 20O1-O789CT68 PRODUCT WATER PIPELINE EASEMENT AREA EXHIBIT •D-V PREPARED BY: PROJECTDES1GN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 P.O.C. SWEFTJOFJ A.P.N. 210-010-39 Ti\SUftVCY\S398\Ptats\P1atDl-ProductVuterPlpeUneS)>t03^hig 07/03/2003 08"16"<1 AH PDT EXHIBIT "E" LEGAL DESCRIPTION OF THE ELECTRICAL LINE EASEMENT AREAS data-wp8\dynegy\encina\poseidon\documcnts\combined lease and easement agmtVlec revisions to lease-easement agrcement.final..doc EXHIBIT 'E' LEGAL DESCRIPTION FOR ELECTRICAL LINE EASEMENT AREAS 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, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 248.14 TO THE POINT OF BEGINNING; THENCE SOUTH 23°31'11" WEST, 266.03 FEET; THENCE SOUTH 35°40'18" EAST, 664.53 FEET; THENCE SOUTH 16°11'01" WEST, 361.48 FEET; THENCE SOUTH 72°52'19" WEST, 290.09 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 252.00 FEET; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 40°53'52", 179.88 FEET TO THE BEGINNING OF REVERSE CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 78.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 58°01'33" EAST; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35011'26", 47.91 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67°09'52" WEST, 118.89 FEET; THENCE SOUTH 64°20'56" WEST, 256.56 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, SAID POINT BEING A POINT ON A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 5216.55 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 62°54'16" WEST; THENCE NORTHERLY, ALONG SAID EASTERLY LINE AND THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 02°19'06", 211.09 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 60°14'42" EAST, 86.85 FEET; THENCE SOUTH 29°45'18" EAST, 135.86 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE SOUTHERLY AND SOUTHEASTERLY, ALONG T:\SURVEY\2398\Hals\Lega1s\ExibE-ElectricalLines.doc July 3,2003 JG.. THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 85°53'45", 67.46 FEET; THENCE TANGENT TO SAID CURVE, NORTH 64°20'56" EAST, 117.37 FEET; THENCE NORTH 67°09'52" EAST, 119.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 38.00 FEET; THENCE EASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35°11'26", 23.34 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 292.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 58°01'33n WEST; THENCE NORTHEASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 40°53'52", 208.43 FEET; THENCE TANGENT TO SAID CURVE, NORTH 72°52'19" EAST, 268.52 FEET; THENCE NORTH 16°11'01" EAST, 234.48 FEET; THENCE SOUTH 67°30'13" WEST, 478.88 FEET; THENCE NORTH 22059'30" WEST, 83.39 FEET; THENCE NORTH 67°00'30" EAST, 20.00 FEET; THENCE SOUTH 22059'30B EAST, 63.56 FEET; THENCE NORTH 67°30'13" EAST, 475.07 FEET; THENCE NORTH 16°11'01" EAST, 60.35 FEET; THENCE NORTH 35°40'18' WEST, 649.34 FEET; THENCE NORTH 23°31'll<r WEST, 23.41 FEET; THENCE SOUTH 70°03'19" WEST, 97.14 FEET; THENCE SOUTH 74°50'20W WEST; 184.47 FEET; THENCE SOUTH 68°24'19" WEST, 80.60 FEET; THENCE NORTH 23°31'11" WEST, 20.01 FEET; THENCE NORTH 68°24'19" EAST, 82.40 FEET; THENCE NORTH 74°50'20" EAST, 184.75 FEET; THENCE NORTH 70°03'19" EAST, 95.06 FEET; THENCE NORTH 23°31'11" WEST, 227.46 FEET; THENCE NORTH 67°22'25ri EAST, 40.00 FEET TO THE POINT OP BEGINNING. 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 2.778 ACRES, MORE OR LESS. JS DATE L.S. 7019 EXPIRATION DATE 6/30/2006 T:\SURVEY\2398\PIate\Legals\ExibB-El«tricalLines.doc July 3,2003 JO.. EXHIBIT "E-l" MAP GENERALLY DEPICTING THE ELECTRICAL LINE EASEMENT AREAS data-wp8\dyncgy\encina\poseidon\documents\combined tease and easement agmtVJec revisions to lease-easement agreement.final..doc 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: 210-010-39 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. LEGEND: INDICA TES EXISTING PROPERTY LINE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES NORTH TRANSMISSION LINE EASEMENT AREA - 2.778 ACRES, MORE OR LESS OWNER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD. CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 VE- (619) 235-6471 VICINITY MAP NO SCALE GARY L HUSf LS.7019 REGISTRATION EXPIRES 6/30/2006 ELECTRICAL LINE EASEMENT AREAS APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 EXHIBIT •E-1' SHEET1 OF3 A.P.N. 210-010-39 Ti\SORVCY\a39e\P(ots\PI«tEl-El*ctrlci>ILInesSht01.a»B 07/07/2003 0*49136 PH PUT PARCEL 3 ROS -J7350 PARCEL 4 ROS 17350 AT&SF RAILROAD RIGHT-OF-WA] PARCEL PARCEL 7 17350 RTIFICATE COMPLIANCE RECORDED"OCTOBER 07890^8, PARCEL 6 ROS 17350 SCALE 1" = 400' ELECTRICAL LINE EASEMENT AREAS APPLICANT: POSBDON RESOURCES SOI VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 EXHIBIT •E-1f SHEET20F3 A.P.N. 210-010-39 TE\SURVEr\239e\Plot»\Ptotei-ElectriciilLine»ShtlK.dw9 07/03/2003 OBi58«4 AM PDT 0 PARCEL 3 ROS 17350 RAILROAD RIGHT-OF-WAY 83.39' H64'20>56'E 117. D-0219'06' L-211.09' SCALE 1" = 200' ELECTRICAL LINE EASEMENT AREAS APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECWE3GN CONSULTANTS 701 B STREET SUITE BOO SAN DIEGO. CALIFORNIA 92101 EXHIBIT •E-1' SWEE7-JOFJ A.P.N. 210-010-39 T.\SURVEY\a398\Wots\Plo-tEl-Drc*ricolLlnr5Sht03.el«o 07/03/2003 09-4&S8 AM PDI EXHIBIT "F" LEGAL DESCRIPTION OF THE TRANSFORMER EASEMENT AREAS data-wpg\dynegy\encina\poseidon\documents\combined lease and easement agmt\dec revisions to lease-easement agrcement.firml..doc 112 EXHIBIT 'F' LEGAL DESCRIPTION FOR TRANSFORMER EASEMENT AREAS NORTH TRANSFORMER EASEMENT THAT PORTION OF LOT WH" 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, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 248.14; THENCE SOUTH 23°31'11" EAST, 253.41 FEET; THENCE SOUTH 66°28'49" WEST, 452.02 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 66°28'49" WEST, 20.00 FEET; THENCE NORTH 23°31'11" WEST, 83.00 FEET; THENCE NORTH 66°28'49" EAST, 32.66 FEET; THENCE SOUTH 85°34'35" EAST, 44.53 FEET; THENCE SOUTH 23031111B EAST, 56.13 FEET; THENCE SOUTH 66°28'49" WEST, 52.00 FEET; THENCE SOUTH 23°31'11" EAST, 6.00 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT »F-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 0.121 ACRES, MORE OR LESS. T:\SURVEY\2398\Plats\LegalsVExibF-Transformer.doc July 3,2003 JG.. SOUTH TRANSFORMER EASEMENT THAT PORTION OF LOT WH" 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, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 288.14 FEET; THENCE SOUTH 23°31'11" WEST, 270.91 FEET; THENCE SOUTH 35°40'18" EAST, 649.34 FEET; THENCE SOUTH le'll'Dl" WEST, 85.97 FEET; THENCE SOUTH 67°30'13" WEST, 478.88 FEET; THENCE NORTH 22°59'30" WEST, 83,39 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 67°00'30" WEST, 18.53 FEET; THENCE NORTH 22°59'30" WEST, 75.00 FEET; THENCE NORTH 67°00'30n EAST, 75.00 FEET; THENCE SOUTH 22°59'30" EAST, 75.00 FEET; THENCE SOUTH 67°00'30" WEST, 56.47 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'F-2' 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 0.129 ACRES, MORE OR LESS. GARY L. HUS L.S. 7019 EXPIRATION DATE DATE 6/30/2006 T:\SURVEY\2398\ms\Legab\EjubF-Transformer.doc July 3.2003 JO..F- nLi EXHIBIT "F-l" MAP GENERALLY DEPICTING THE NORTHERN PART OF THE TRANSFORMER EASEMENT AREAS data-wp8Vdynegy\encina\poseidon\documents\combined lease and easement agmtVdec revisions to lease-easement agreement.fmal..doc n- LEGAL DESCRIPTION: A PORTION OF PARCEL 4 PER CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30. 2001 AS DOCUMENT NO. 2001-0789068. AND AS SHOWN OH RECORD OF SURVEY NO. 17350. IN THE CITY OF CARLSBAD. COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ASSESSORS PARCEL NO: 210-010-39 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. LEGEND: INDICATES EXISTING PROPERTY LINE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES NORTH TRANSFORMER EASEMENT AREA - 0.121 ACRES, MORE OR LESS OWNER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD. CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE: (619) 235-6471 VICINITY MAP NO SCALE GARY L HUST LS.7019 REGISTRATION EXPIRES 6/30/2006 DATE APPLICANT: POSEIDON RESOURCES 501 BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 NORTH TRANSFORMER EASEMENT AREA EXHIBIT 'F-1' SWEET/ OF3 A.P.N. 210-010-39 Ti\SURVET\2M8\PUts\Plotri-Tr«nsforn*rNorthShtOl.d»fl 07/07/3003 OB'50'04 PM PDT PARCEL 4 17350 PARCEL 3 FIOS 17350 H6T2S'47mE 54.68" AT&SF RAILROAD RIGHT-OF-WAY PARCEL 4 ROB 17350 PARCEL 7 ROS 17350 ^CERTIFICATE OF wwim-^i^nwc ,v RE C O RDED OCTOBE R -&&, / 2OO1 \\ x COMPLIANCE FILE NOA2OO1-O78QO68 PARCEL 6 ROS 17350 NORTH TRANSFORMER EASEMENT AREA EXHIBIT 'F-VAPPLICANT: POSEIDON RESOURCES PREPARED BY: PROJECTDESGN CONSULTANTS SHEET20F3701 B STREET SUITE 800501 VEST 8MADWAY SUITE 840 A.P.N. 210-010-39SAN DIEGO, CALIFORNIA 92101SAN DIEGO, CALIFORNIA 92101 lASURVEY\S39B\PlQts\Platri-TransFornerNor-thStvt(K.cl«9 07/03/8003 09.H33 AH PUT PARCEL 4 ROS 17350 PARCEL 4 CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30. 2OO1 FILE NO. 2OO1-O789O68 ^x \ N66"28'49"E 52.00' SCALE 1" = 50' APPUCANT: POSEIDON RESOURCES SOI JEST BROADWAY SUITE MO SAN DIEGO. CAUFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 NORTH TRANSFORMER EASEMENT AREA EXHIBIT 'F-11 SHEFTJCFJ A.P.N. 210-010-39 Ti\SURVEVV.a39BVPlats\Piatn-TransfornerNor-thSht03.d«e 07/03/2003 OW7C4 AM PUT I o EXHIBIT «F-2" MAP GENERALLY DEPICTING THE SOUTHERN PART OF THE TRANSFORMER EASEMENT AREAS data-wp8\dynegy\cncina\poseidon\documents\combined lease and easement agmtWec revisions to lease-easement agreement.final..doc 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 C/7Y OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ASSESSORS PARCEL NO: 210-010-39 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 UNE BETWEEN FIRST ORDER CONTROL POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271, /.£ N40'39'21"W. LEGEND: INDICATES EXISTING PROPERTY UNE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES SOUTH TRANSFORMER EASEMENT AREA = 0.129 ACRES, MORE OR LESS OWNER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD. CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE: (619) 235-6471 VICINITY MAP NO SCALE GARY L HUS\ LS.7019 REGISTRATION EXPIRES 6/30/2006 DATE APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CAUFORNIA 92101 SOUTH TRANSFORMER EASEMENT AREA EXHIBIT 'F-2' SHEET1 OF 2 A.P.N. 210-010-39 Ti\SURVEr\a398\PI«ts\Platra-TronsFoi-n«rSouthSlvt01.iJ«o 07/07/2003 PM PDI UNEDATA PARCEL 3 ROB -J7350 NO. LI 12 L3 14 L5 BEARING N22'59'30'W N67W'30'E N22"59'30'W H67W'30mE N67WWE DIST 83.39' 18.53' 75.00' 75.00' 55.47* PARCEL 4 ROS 17350 AT&SF RAILROAD RIGHT-OF-WAYPARCEL 4 \ CERTtpfcATE ,OF COMPLIANCE RECORDED PARCEL 7 ROS 17350 OCTOBER 3O. 2OO1 2OO1-O789OO8 PARCEL 5 ROS 17350 APPUCANT: POSEIDON RESOURCES 501 WEST BROADWAY SUITE 840 SAN DIEGO, CALIFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 SOUTH TRANSFORMER EASEMENT AREA EXHIBIT SHEET 2 OF 2 A.P.N. 210-010-39 Ti\SURVEY\2398\Pl«tl\PlatFS-Transfcx-nerSouthShtOa.««8 87/03/2003 AH PDT EXHIBIT "G" LEGAL DESCRIPTION OF THE SUBSTATION EASEMENT AREA data-wp8Vlynegy\encina\poseidon\docurnenls\cornbmed lease and easement agmt\dec revisions to lease-easement agreement.final..doc EXHIBIT 'G' LEGAL DESCRIPTION FOR SUBSTATION 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. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30-'13" WEST, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 248.14; THENCE SOUTH 23°31'11" EAST, 153.41 FEET TO THE POINT OP BEGINNING; THENCE NORTH 66028'49M EAST, 75.00 FEET; THENCE SOUTH 23°31'11" EAST, 100.00 FEET; THENCE SOUTH 66°28''49" WEST, 75.00 FEET; THENCE NORTH 23°31'11" WEST, 100.00 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'G-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 0.172 ACRES, MORE OR LESS. GARY L. L.S. 7019 EXPIRATION DATE DATE 6/30/2006 TL\SURVEY\2398\Plats\Legals\ExibG-SubStation.doc July 3,2003 JG.. EXHIBIT "G-l" MAP GENERALLY DEPICTING THE SUBSTATION EASEMENT AREA data-wp8\dynegy\encina\poseidon\documents\cornbined lease and easement agmtVlcc revisions to lease-easement agreement.final..doc 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: 210-010-39 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. LEGEND: INDICA TES EXISTING PROPERTY UNE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES SUBSTATION EASEMENT AREA = 0.172 ACRES, MORE OR LESS OWNER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD, CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE: (619) 235-6471 N VICINITY MAP NO SCALE CARYL HUS] LS.7019 REGISTRATION EXPIRES 6/30/2006 DATE APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CAUFORNIA 92101 SUBSTATION EASEMENT AREA EXHIBIT•G-r SHEET1 OF2 A.P.N. 210-010-39 T.\SURVEY\2398\Pla-ts\PltttGl-SubStntlonSht01.d*Q 07/07/W03 OMl'04 PM PDT UNEDATA PARCEL 3 ROS -J7350 A/a L1 L2 L3 L4 BEARING N6722'25"E N23-31'11'W N66?8'49'E N23'31'11'W DIST 248.14' 153.41' 75.00' 100.00' PARCEL 4 17350 AT&SF RAILROAD RIGHT-OF-WAY PARCEL 4 ROS 17350 PARCEL 7 ROS 17350 \CERTIFICATE OF COMPI^IA \RECORDED OCTOBER-^O',/ ioO1\s \ FILE NO. PARCEL 6 ROS 17350 SCALE 1" - 400' APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 SUBSTATION EASEMENT AREA EXHIBIT •G-1f SHEET 2 OF 2 A.P.N. 210-010-39 Ti\SURVEY\a39B\Plati\PlotGI-SubSto-tionSht08.d«9 07/03/9003 0*30« AM PDT EXHIBIT "H" LEGAL DESCRIPTION OF THE SEWER/DOMESTIC WATER EASEMENT AREA data-wp8\dyncgy\encina\poscidonV3ocumcnU\combined lease and easement agmt\dec revisions to lease-easement agreemcnt.finaL.doc X\ '? EXHIBIT 'H LEGAL DESCRIPTION FOR SEWER/DOMESTIC WATER EASEMENT AREA THAT PORTION OF LOT WH" 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, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 11.67 FEET TO THE POINT OP BEGINNING; THENCE SOUTH 22°21'34" EAST, 62.54 FEET TO A POINT ON THE NORTHERLY LINE OF THAT CERTAIN "PIPE 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 NORTHERLY LINE NORTH 67°38'26" EAST, 195.12 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 22°21'34" WEST, 20.00 FEET; THENCE NORTH 67°38'26" EAST, 20.78 FEET; THENCE NORTH 22°21I34" WEST, 22.16 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID "PIPE LINE LICENSE"; THENCE ALONG SAID SOUTHERLY LINE SOUTH 67°38'26M WEST, 195.12 FEET; THENCE SOUTH 22°21'34" EAST, 6.55 FEET; THENCE SOUTH 67°38'26I> WEST, 20.00 FEET; THENCE NORTH 22°21'34" WEST, 78.00 FEET; THENCE NORTH 67°22'25" EAST, 20.00 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'H-l' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID T:\SURVEY\2398\Plate\Ugals\ExibH ^ww/DomesUcWater .doc July 3. 2003 JO..H ~" * *^C- ' ^ 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 0.130 ACRES, MORE OR LESS. GARY L. SUS DATE L.S. 7019 EXPIRATION DATE 6/30/2006 T:\SURVEY\2398\Plals\Legals\ExibH-Sewer/DomesUcWater.doc July 3. 2003 JG..» H ~~ EXHIBIT "H-l" MAP GENERALLY DEPICTING THE SEWER/DOMESTIC WATER EASEMENT AREA data-wp8\dyncgy\encina\poseidon\documents\combined lease and easement agmt\dec revisions to lease-easement agreement.final..doc I /"I 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: 210-010-39 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, IE. N40*39'21"W. LEGEND: INDICATES EXISTING PROPERTY UNE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES SEWER/DOMESTIC WATER EASEMENT AREA = 0./30 ACRES, MORE OR LESS OWNER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD, CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE: (619)235-6471 VICINITY MAP NO SCALE CARYL HUS, LS.7019 REGISTRATION EXPIRES 6/30/2006 DATE SEWER/ DOMESTIC WATER EASEMENT AREA APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDEStGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 EXHIBIT 'H-1' SHEET 1 OF J A.P.N. 210-010-39 T:\SURVEY\2398VPIott\PlotHl-Se.trBones-tlcWaterShtOl.iiwe 07/07/2003 02'3l-27 PH. PDT PARCEL 3 ROS -J7350 PARCEL 4 ROB 17350 11.67 N6T29'47TE ,54.68' P.O.B. -AT&SF RAILROAD RIGHT-OF-WAY \\y\ " PARCEL 4 ROS -J7350 PARCEL 4 CERTIFICATE OF CO" RECO^RDEb^ OCTOBER X-TO. 2OO1 FILE NO \\ PARCEL 7 ROS 17350 10. ^'Jjtopes;'--'-' P.O.C. PARCEL 5 ROS 17350 SCALE 1" - 400' \ SEWER/ A DOMESTIC WATER \ EASEMENT AREA\ APPLICANT: POSBDON RESOURCES SOI *ESTBROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJEC7DESKSN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 EXHIBIT 'H-V SHEET20F3 A.P.N. 210-010-39 T>\SUWCY\e39e\nati\PlQtHt-SemrDones-ticVaterSh-toa.d»e 07/03/2003 0»S3«45 AM PUT LINE DATA PARCEL 4 ROS VJ7350 NO. L1 L2 L3 14 15 L6 L7 BEARING N22-21'34"W N67?8'26"E N22'21'34"W N22"21'34"W N67-38'26"E N22'21'34'W N22?1'34'W DIST 18.01' 15.00' 32.16' 20.00' 20.78' 22.16' 6.55' AT&SF RAILROAD RIGHT-OF-WAY N67?2'25"E 20. or PARCEL 4 ROS -J7350 \ PARCEL CERTIFICATE OF COMPLIANCE \ RECORDED OCTOBER 3O, 2OO1 FILE NO. 2OO1-0789068 PARCEL 4 ROS 17350 SCALE 1" = 50' SEWER/ DOMESTIC WATER EASEMENT AREA APPUCANT: POSEIDON RESOURCES 501 HES7 BROADWAY SUITE 840 SAN DIEGO. CAUFVRNIA 92101 PREPARED BY: PROJEC7DE9GN CONSULTANTS 701 B STREET SUITE BOO SAN DIEGO. CALIFORNIA 92101 EXHIBIT •H-1f SHEET 3 OF 3 A.P.N. 210-010-39 T>\SURVer\S398\Plat3M>latHl-Se»crDofWSti<:VotrrSh-t03.d«e 07/03/3003 09.56-50 AH PDT EXHIBIT "I" MAP GENERALLY DEPICTING THE INGRESS/EGRESS EASEMENT AREAS data-wp8\dynegy\encina\poseidon\documents\conibined lease and casement agmt\dec revisions to lease-easement agrccmcnt.final..doc ffi III!! Hi I §1 w III i EXHIBIT "J" LEGAL DESCRIPTION OF THE ACCESS AND TURN-AROUND EASEMENT AREA data-wp8\dynegy\encina\poscidonVJocuments\cornbined lease and easement agmt\dec revisions to lease-easement agreement.finaLdoc EXHIBIT 'J' LEGAL DESCRIPTION FOR ACCESS AND TURNAROUND EASEMENT AREA ACCESS EASEMENT 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, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29/47'r WEST, 54.68 FEET TO THE POINT OF BEGINNING; THENCE NORTH 22°37'35" WEST, 891.02 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT %A'; THENCE NORTH 67°22'25" EAST, 20.00 FEET; THENCE SOUTH 22°37'35"EAST, 1387.45 FEET; THENCE SOUTH 15°31'18" EAST, 379.90 FEET; THENCE SOUTH 29°58'25" EAST, 433.54 FEET; THENCE SOUTH 22°32'58" EAST, 191.28 FEET; THENCE SOUTH 09°39'03" EAST, 50.72 FEET; THENCE SOUTH 19002'22" EAST, 157.35 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 4; THENCE ALONG SAID SOUTHERLY LINE NORTH 82°40'44" WEST, 27.90 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 19°02'22" WEST, 147.02 FEET; THENCE NORTH 09°39'03" WEST, 49.95 FEET; THENCE NORTH 22°32'58' WEST, 186.83 FEET; THENCE NORTH 29°58'25" WEST, 434.98 FEET; THENCE NORTH 15°31'44n WEST, 381.79 FEET; THENCE NORTH 22°37'35" WEST, 174.35 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE NORTHERLY, NORTHWESTERLY AND WESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 90°53'36", 71.39 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 66°28'49" WEST, 675.85 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 70.00 FEET; THENCE NORTHWESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 81°26'17", 99.50 FEET; THENCE TANGENT TO SAID CURVE, NORTH 32°04'53" WEST, 93.96 FEET TO THE BEGINNING OF A TANGENT CURVE, T:\SURVEY\2398\Plais\Legals\ExibJ-AccessTumaround.doc July 3. 2003 JG.. CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE NORTHWESTERLY, 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 SOUTHERLY AND HAVING A RADIUS OF 52.50 FEET; THENCE 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 ALONG SAID EASTERLY LINE NORTH 24°07'36" WEST, 25.02 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 67°57'41" EAST, 326.69 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 77.50 FEET; THENCE SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 69°07'13', 93.49 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 42°55'06" EAST, 40.23 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 10°50'13", 8.51 FEET; THENCE SOUTH 32°04'53" EAST, 96.34 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 81°26'18", 63.96 FEET; THENCE TANGENT TO SAID CURVE, NORTH 66°28'49n EAST, 682.64 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE NORTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 89°06'24", 69.98 FEET; THENCE TANGENT TO SAID CURVE, NORTH 22°37'35" WEST, 205.27 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'J-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 2.153 ACRES, MORE OR LESS. TURNAROUND EASEMENT 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 T:\SUR VEYY2398\Plats\Legals\E;uhJ -AccessTumaround.doc July 3. 2003 JG.. COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: 2001- BEGINNING AT THE AFOREMENTIONED POINT ^A', SAID POINT BEING THE BEGINNING OF A CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 80.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 67°22'25" EAST; THENCE NORTHWESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 82°49'09", 115.64 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 15°26'44" WEST; THENCE WESTERLY, NORTHERLY, EASTERLY AND SOUTHERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 262°49'09", 366.96 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 22°37'35" EAST, 158.75 FEET; THENCE SOUTH 67°22'25" WEST, 20.00 FEET TO THE POINT OP BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'J-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 0.559 ACRES, MORE OR LESS. GARY L. HUS L.S. 7019 EXPIRATION DATE DATE 6/30/2006 T:\SURVEY\2398\Plats\Legak\ExibJ-AccessTurnaround.doc July 3.2003 JO..cr- EXHIBIT "J-l" MAP GENERALLY DEPICTING THE ACCESS AND TURN-AROUND EASEMENT AREA data-wp8\dyncgy\cncina\poseidon\documents\combined lease and easement agmt\dec revisions to lease-easement agreement.flnal.doc LEGAL DESCRIPTION: A PORTION OF PARCEL 4 PER CERTIFICATE OF COMPLIANCE RECORDED OCTOBER SO, 2001 AS DOCUMENT NO. 2001-0789068, AND AS SHOW ON RECORD OF SURVEY NO. 17350, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ASSESSORS PARCEL NO: 210-010-39 LEGEND: m 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, /.£ N40'39'21"W. OWNER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD, CALIFORNIA 92008 PHONE: (760) 268-4011 SURVEYOR OF WORK: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE: (619) 235-6471 INDICATES EXISTING PROPERTY UNE INDICATES POINT OF COMMENCEMENT INDICATES POINT OF BEGINNING INDICATES ACCESS EASEMENT AREA = 2.153 ACRES. MORE OR LESS INDICATES TURNAROUND EASEMENT AREA - 0.559 ACRES, MORE OR LESS COMBINED EASEMENTS AREA = 2.7/2 ACRES, MORE OR LESS VICINITY MAP NO SCALE CARYL HUS,^LS.7019 REGISTRATION EXPIRES 6/30/2006 DATE ACCESS AND TURNAROUND EASEMENT AREA APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESIGN CONSULTANTS 701 B STREET SUITE BOO SAN DIEGO, CALIFORNIA 92101 EXHIBIT fj-1f SHEET 1 OF 4 A.P.N. 210-010-39 T.\SURVEY\e398\Plots\PlotJL-AcCMsTurnoroundShtOI.*ie 07/07/2003 OM1-SO PM PDT TURNAROUND EASEMENT PARCEL 3 ROS 17350 SG4AE f" PARCEL 4 ROS 17350 , 54.68' ACCESSEASEMENT! RAILROAD RIGHT-OF-WAY PARCEL 4 ROS 17350 PARCEL 4 CERTIFICATE OF CC*MI>l-IAtiQE ' PARCEL 7 17350ROS OCTOBER V3t>. 2001 FILE NO. 2OO1-O78OOe8"'--' / i P.O.C. PARCEL 5 ROS 17350 ACCESS AND TURNAROUND EASEMENT AREA APPLICANT: POSEIDON RESOURCES 501 IfST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJEC7DESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 EXHIBIT •J-1» SHEET20F4 A.P.N. 210-010-39 T.\SURVEY\2398\Platj\PlotJl-AcccssTurnarouneJSM02.d.o 07/03/2003 10.11.2« AH PDT SEE SHEET 4 OF 4 FOR DATA TABLES PARCEL 3 ROS 17350 •as™ PARCEL 4 ROS -J7350 A/B729V7TE 54.68' AT&SF RAILROAD RIGHT-OF-WAY PARCEL 4 ROS 17350 PARC£L 7 ROS 17350 PARCEL 4 CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 3p, 2001 FILE 2OO1-O78Op'e8 -"ACCESS '-""' AND TURNAROUND EASEMENT AREA EXHIBIT •J-1f APPLICANT: POSEIDON RESOURCES PREPARED BY: PROJECTDESGN CONSULTANTS SHEET30F4 A.P.N. 210-010-39 701 B STREET SUITE 800501 *ESTBROADWAY SUITE 840 SAN DIEGO. CALIFORNIASAN DIEGO. CALIFORNIA 92101 TASURVEr\a39S\Plots\PlatJl-Acc:*»Turna>-ouMdSM03.d.g 07/03/2003 104&3B AH PDT UNE DATA HO. U 12 L3 L4 L5 L6 17 18 L9 L10 L11 L12 L13 L14 US L16 L17 L18 L19 BEARING NIS-3118'W N29-58'25'W N82'40'44'W N09-39'03'W N22-32'58"W N29'58'25"W N22'3T35'W N32V4'53*W N42-55'06"W N24V7'36"W N42-55'06"W N32V4'53"W DISTANCE 379.90' 433.54' 191.28' 50.72' 157.35' 27.90' 147.02' 49.95' 186.83' 434.98' 174.35' 93.96' 37.86' 325.78" 25.02' 326.69' 40.23" 96.34' 205.27" CURVE DATA NO. C1 C2 C3 C4 C5 C6 C7 C8 C9 CIO RADIUS 80.00' 80.00' 45.00' 70.00' 45.00' 52.50' 77.50" 45.00' 45.00' 45.00' DELTA 82'49'09' 262'49'09" 90ST36' 81-26'ir 10W13' 69Vri3* 69V713' /OSO'/J" m-26'18' 89W24' ARC 115.64' 366.96' 71.39' 99.50' 8.51' 63.33' 93.49' 8.51' 63.96' 69.98' ACCESS AND TURNAROUND EASEMENT AREA APPLICANT: POSEIDON RESOURCES 501 VEST BROADWAY SUITE 840 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: PROJECTDESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 EXHIBIT 'J-1f SHEET40F4 A.P.N. 210-010-39 Ti\$URVtr\Z398\Pla-ts\P1atJI-Acc>«1urnaroundSht04.d*g 07/03/2003 IO'|S'37 AH PDT EXHIBIT "D1 (Existing Development Approvals) (a) Final EIR 03-05; Findings of Fact; Statement of Overriding Considerations; and Mitigation Monitoring and Reporting Program (b) Precise Development Plan (POP 00-02); (c) Specific Plan 144(H); (d) Coastal Development Permit CDP 04-41; (e) South Carlsbad Coastal Redevelopment Permit RP 05-12; (f) Habitat Management Plan Permit HMPP 05-08; (g) This Agreement DA 05-01; and (h) Special Use Permit SUP 05-04. The development approvals listed above include the approved maps and all conditions of approval. COPIES OF THE EXISTING DEVELOPMENT APPROVALS 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. DSMDB.1996157.6B '/' rv EXHIBIT "E1 (Existing Land Use Regulations) 1. City of Carlsbad General Plan as amended through Resolution No. 8307. 2. City of Carlsbad Precise Development Plan 00-02 as amended through Ordinance No. . 3. South Carlsbad Coastal Redevelopment Plan. 4. Specific Plan 144(H), as amended through City of Carlsbad Ordinance No. 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. DSMDB. 1996157.6B 1 RESOLUTION NO. 420 2 A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF 3 CARLSBAD, CALIFORNIA, APPROVING 4 REDEVELOPMENT PERMIT RP 05-12 FOR THE PORTION OF THE PRECISE DEVELOPMENT PLAN AND 5 DESALINATION PLANT PROJECT LOCATED IN THE SOUTH CARLSBAD COASTAL REDEVELOPMENT AREA 6 AND GENERALLY IN THE VICINITY OF AGUA HEDIONDA LAGOON, CANNON ROAD, AND THE ENCINA POWER 7 STATION. CASE NAME: PRECISE DEVELOPMENT PLAN AND 8 DESALINATION PLANT 9 CASE NO: RP05-12 10 WHEREAS, on May 3, 2006, the Carlsbad Planning Commission, the 11 review body for recommending and processing land use permits proposed in the South 12 Carlsbad Coastal Redevelopment Area, held a duly noticed public hearing to consider a 13 proposed Redevelopment Permit and adopted Planning Commission Resolution No. 14 6091, recommending approval of Redevelopment Permit RP 05-12; and WHEREAS, the Housing and Redevelopment Commission of the City of 16 Carlsbad did on the 13th . day of June , 2006, hold a public hearing to 17 consider the recommendations and heard all persons interested in or opposed to PR 18 19 05-12; and 20 NOW THEREFORE, BE IT RESOLVED by the Housing and 21 Redevelopment Commission of the City of Carlsbad, California, as follows: 22 1. That the above recitations are true and correct. 2. That Redevelopment Permit RP 05-12 is approved and that the findings 24 and conditions of the Planning Commission contained in Planning Commission Resolution No. 6091, on file with the City Clerk and incorporated herein by reference, 25 are the findings and conditions of the Housing and Redevelopment Commission of the City of Carlsbad. 26 27 28 1 "NOTICE TO APPLICANT" 2 "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 made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking judicial review must be filed 5 in the appropriate court not later than the ninetieth day following the date on which this decision becomes final; 6 however, if within ten days after the decision becomes final a request for the record of the proceedings accompanied by 7 the required deposit in an amount sufficient to cover the estimated cost of preparation of such record, the time within 8 which such petition may be filed in court is 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 10 his attorney of record, if he has one. A written request for the preparation of the record of proceedings shall be filed 11 with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, California 92008." 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Special Meeting of the Housing and Redevelopment Commission of the City of Carlsbad on the 13th day of June 2006, by the following vote, to wit: AYES: Commissioners Lewis, Kulchin, Packard, Sigafoose NOES: None ABSENT: Commissioner Hall ATTEST: RAYIV@ND R. PATCHETT, SECRETARY (SEAL) pxui11 txs'8)ueid|es9a\so'66zj\cuiuue|a\spnpojd\zs!0jeo\:p Proposed Water Delivery Pipelines And Desalination Plant Map Proposed Water Delivery Pipelines City of Oceanside City of Vista City of Carlsbad \ McClellan Palomar Airport