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Home My WebLink AboutPDP 00-02; ENCINA GENERATING STATION PRECISE DEVELOPMENT PLAN; Precise Development Plan (PDP)1) .l\PPLICATIONS APPLIED FOR: D Administretive Permit • 2nd Dwelling Unit D Administrative Varience D Coastal Development Permit D Conditional Use Permit D Condominium Permit D Environmental Impact Assessment D General Plan Amendment □ Hillside Development Permit D Local Coastal Plan Amendment D Master Plan D Non-Residential Planned Development D Planned Development Permit ASSESSOR PARCEL NO(S).: PROJECT NAME: CITY OF CARLSBAD LAND USE REVIEW APPLICATION !CHECK BOXES) IFOR DEPARTMENT !FOR DEPARTMENT USE DNLYI USE ONLY! D Planned Industrial Permit D Plenning Commission Determination . rn Precise Development Plan PDPoo,o~ □ Redevelopment Permit .. □ Site Development Plan D Special Use Permit G Specific Plan Amendment 5P \~"ilH ~ D :;:eAtati • e PaFeel P.4a., Obtoln ffom Engineering Department D Tentative Tract Map D Variance . D Zone Change D List other applications not " soecified --... --- 210-010-39 . 't,_'1 (Y t ct.f I " Encinaeuer Sta ion Precise Develo mentPlan 21 3) 4) BRIEF DESCRIPTION OF PROJECT: A plan and text depicting all existing facilities on site at the Encina Power Station. 5) OWNER NAME (Print or_Tyi,e) Cabrillo Power I LLC MAILING ADDRESS Symphony Towers, Suite 2740 750 "B" Street 6) APPLICANT NAME (Print or Type) Hofman Plannin Associates MAILING ADDRESS 5900 Pasteur Court Suite150 CITY AND STATE ZIP TELEPHONE CITY AND STATE ZIP TELEPHONE San Diego, CA 92101 (619)615-6730 I CERTIFY THAT I AM THE LEGAL OWNER AND THAT ALL THE ABOVE INFOR TION IS TRUE ANO CORRECT TO THE BEST DF MY KNO DGE. Ca~lsbad, CA 92008 (760)438-1465 I CERTIFY THAT I AM THE LEGAL REPRESENTATIVE OF THE OWNER ANO THAT ALL THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. 't -t.!!~<JO DATE 7) BRIEF LEGAL DESCRIPTION · f Lt "H" f Rancho Agua Hedionda Portions a o o according to PartitionMap No. 823 NOTE: A PROPOSED PROJECT REQUIRING MULTIPLE APPLICATIONS BE FILED, MUST BE SUBMITTED PRIOR TO 3:3D P.M. A PROPOSED PROJECT REQUIRING ONLY ONE APPLICATION BE FILED. MUST BE SUBMITTED PRIOR TO 4:00 P.M. Form 16 PAGE 1 OF B) LOCATION OF PROJECT: _, __,4-"6-"0-"0-"C:=a-=r-=l-=s-=b:=a:.:::dc...::B:.::oc::u:.:l:.:e:..:v..;a:==r,,d;,,._,,...,..,,.,.,.=----------- STREET ADDRESS ON THE BETWEEN l East !NORTH, SOUTH, EAST, WEST} j Cannon Road !NAME OF STREET} SIDE OF !Carlsbad Blvd. !NAME OF STREET) AND !chinquapin !NAME OF STREET! 9) LOCAL FACILITIES MANAGEMENT ZONE I 1 10) PROPOSED NUMBER OF LOTS IN/Al11) NUMBER OF EXISTING ~ 12) PROPOSED NUMBER OF IN/AI RESIDENTIAL UNITS RESIDENTIAL UNITS 13) TYPE OF SUBDIVISION I N/AI 14) PROPOSED IND OFFICE/ ~15) PROPOSED COMM IN/AI SQUARE FOOTAGE SQUARE FOOT AGE 16) PERCENTAGE OF PROPOSED 5:;]17) PROPOSED INCREASE IN ~ 1 8) PROPOSED SEWER IN/AI PROJECT IN OPEN SPACE ADT NA USAGE IN EDU 19) GROSS SITE ACREAGE 020) EXISTING GENERAL los,ul21) PROPOSED GENERAL ~ PLAN PLAN DESIGNATION 22) EXISTING ZONING B~~ PROPOSED ZONING jo-s,~-u 24) IN THE PROCESS OF REVIEWING THIS APPLICATION IT MAY BE NECESSARY FOR MEMBERS OF CITY STAFF, PLANNING COMMISSIONERS, DESIGN REVIEW BOARD MEMEBERS OR CITY COUNCIL MEMBERS TO NSPECT AND ENTER THE PROPERTY THATJS THE SUBJECT OF THIS APPLICATION. I/WE CONSENT T ENTRY FOR THIS PURPOSE FOR CITY USE ONLY FEE COMPUTATION APPLICATION TYPE TOT AL FEE REQUIRED DATE FEE PAID Form 16 FEE REQUIRED SEP 2 8 2000 CITY OF CARLSBAD DATE sfAY}.t'i~t'lti trt!if'R°IcEIVED RECEIVED BY: RECEIPT NO. PAGE 2 OF - PROJECT DESCRIPTION/EXPLANATION PROJECT NAME: Encina Generating Station Precise Development Plan APPLICANT NAME: Cabrillo Power I. LLC Description/Explanation: In 1948, SDG&E purchased land in then unincorporated San Diego County to build an electricity generating station. In 1954, the Encina Genera_ting Station, located at 4600 Carlsbad Boulevard, began producing electricity. In 1975, the City of Carlsbad passed an ordinance requiring all land uses in the Public Utility (P-U) zone to have an approved Precise Development Plan on file with the City. The net effect of this ordinance on the Encina Generating Station was to retroactively create a legal, non-conforming use. In May 1999, the Encina Generating Station was purchased by Cabrillo Power I LLC. In compliance with the requirements of the Carlsbad Municipal Code, Cabrillo has prepared the Encina Generating Station Precise Development Plan (EGSPDP) for submittal and approval by the City of Carlsbad. It is important to note that although the document is called a "Precise Development Plan", no development is proposed by this document. It is merely a statement of what currently exists onsite at the Encina Generating Station. Concurrent with the submittal of the EGSPDP, application is being made for a Specific Plan Amendment. The EGSPDP is intended to supercede the existing 1971 Encina Specific Plan (SP 144) for the portions of the SP 144 site now owned by Cabrillo Power I LLC. The EGSPDP has been prepared in accordance with the requirements of Section 21.36.030 (Precise Development Plan) of the Carlsbad Municipal Code. The intent and purpose of this EGSPDP is to: • To provide a comprehensive list of all existing onsite land use facilities and operations owned by Cabrillo; • Enable the City issuance of building permits and other discretionary and ministerial permits and entitlements for use; • To establish a procedure for administrative approvals of accessory uses necessary to conduct any permitted uses such as minor additions and modifications to the existing facilities. In 2000, the City of Carlsbad created a 555-acre redevelopment zone encompassing, the site of and activities associated with, the Encina Generating Station. The redevelopment zone is known as the South Carlsbad Coastal Redevelopment Plan (SCCRP). The City of Carlsbad also certified an EIR for the SCCRP in 2000 which contained an evaluation of potential impacts associated with implementation of the SCCRP. .... ,, C CITY OF CARLSBAD LAND USE REVIEW APPLICATION 1) APPLICATIONS APPLIED FOR: (CHECK BOXES) □ □ □ □ □ □ □ □ □ □ □ □ 2) 3) 4) Administrahve Permit -2nd Dwelling Unit Administrative Variance Coastal Development Permit Conditional Use Permit Condominium Permit Environmental Impact Assessment General Plan Amendment Hillside Development Permit Local Coastal Plan Amendment Master Plan Non-Residential Planned Development Planned Development Permit ASSESSOR PARCEL NO(S).: PROJECT NAME: BRIEF DESCRIPTION OF PROJECT: 51 OWNER NAME (Print or Type) Cabrillo Power I, LLC MAILING ADDRESS 4600 Carlsbad Blvd. CITY AND STATE Carlsbad, CA ZIP 92008 (FOR DEPARTMENT (FOR DEPARTMENT USE ONLY} USE DNLYI □ Planned Industrial Permit □ Planning Commission Determination [8] Precise Development Plan □ Redevelopment Permit □ Site Development Plan □ Special Use Permit □ Specific Plan □ +eAtati,•e Fla,eel Ma~ Obtain from Engineering Department □ Tentative Tract Map □ Variance □ Zone Change □ List other applications not snecified 210-010-39 Encina Generating Station Precise Development Plan Amendment to in process PDP to include Carlsbad Seawater Desai. Plant. TELEPHONE 760.268.4001 6) APPLICANT NAME (Print or Type) Poseidon Resource Corp. c/o Peter MacLa an MAILING ADDRESS 501 West Broadway Ave. Suite 840 CITY AND STATE San Diego ZIP 92101 TELEPHONE 619.595.7802 I CERTIFY THAT I AM THE LEGAL OWNER AND THAT ALL THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY I CERTIFY THAT I AM THE LEGAL REPRESENTATIVE OF THE OWNER AND THAT ALL THE ABOVE INFORMATION IS TRUE AND CT TO THE B ST OF MY KNOWLEDGE.~ KNOWLEDG S-'8-CJ'..L DATE 7) BRIEF LEGAL DESCRIPTION NOTE: A PROPOSED PROJECT REQUIRING MULTIPLE APPLICATIONS BE FILED. MUST BE SUBMITTED PRIOR TO 3:30 P.M. Form 16 PAGE 1 OF 2 . . 0 -A PROPOSED PROJECT REQUIRING ONL E APPLICATION BE FILED, MUST BE SUB~D PRIOR TO 4:00 P.M. I t 8) LOCATION OF PROJECT: 4600 Carlsbad Blvd. STREET ADDRESS ON THE East SIDE OF Carlsbad Blvd. (NORTH. SOUTH, EAST, WEST) (NAME OF STREET) BETWEEN Cannon Road AND Tamarack Avenue (NAME OF STREET) (NAME OF STREET) 9) LOCAL FACILITIES MANAGEMENT ZONE 3 10) PROPOSED NUMBER OF LOTS ~11) NUMBER OF EXISTING 012) PROPOSED NUMBER OF 0 RESIDENTIAL UNITS RESIDENTIAL UNITS n/a 13) TYPE OF SUBDIVISION 014) PROPOSED IND OFFICE/ 015) PROPOSED COMM 0 SQUARE FOOTAGE SQUARE FOOTAGE 16) PERCENTAGE OF PROPOSED 017) PROPOSED INCREASE IN 0 18) PROPOSED SEWER D PROJECT IN OPEN SPACE ADT USAGE IN EDU 19) GROSS SITE ACREAGE 820) EXISTING GENERAL 021) PROPOSED GENERAL 0 PLAN PLAN DESIGNATION 22) EXISTING ZONING 823) PROPOSED ZONING 8 24) IN THE PROCESS OF REVIEWING THIS APPLICATION IT MAY SE NECESSARY FOR MEMBERS OF CITY STAFF, PLANNING COMMISSIONERS, DESIGN REVIEW BOARD MEMBERS OR CITY COUNCIL MEMBERS TO INSPECT AND ENTER THE PROPERTY THAT IS THE SUBJECT OF THIS APPLICATION. I/WE CONSENT T ENTRY THIS P RPOSE FOR CITY USE ONLY FEE COMPUTATION APPLICATION TYPE TOTAL FEE REQUIRED DATE FEE PAID Form 16 FEE REQUIRED RECENED MAY t 3 2002 CITY OF CARLSBAD DA T~N~1<t)eptt RECEIVED RECEIVED BY: RECEIPT NO. PAGE 2 OF 2 , C ...., City of Carlsbad ■AF ■ ,i,ii,1·1 •14 ·El I;,, 14, I I HAZARDOUS WASTE AND SUBSTANCES STATEMENT Consultation Of Lists of Sites Related To Hazardous Wastes (Certification of Compliance with Government Code Section 65962.5) Pursuant to State of California Government Code Section 65962.5, I have consulted the Hazardous Wastes and Substances Sites List compiled by the California Environmental Protection Agency and . . hereby certify that (check one): [i] The development project and any alternatives proposed in this application are not contained on the lists compiled pursuant to Section 65962.5 of the State Government Code. 0 The development project and any alternatives proposed in this application are contained on the lists compiled pursuant to Section 65962.5 of the State Government Code. APPLICANT PROPERTY OWNER Name: Poseidon Resource Corp. Name: Cabrillo Power I, LLC Address: 501 West Broadway Ave.#840 Address: 4600 Carlsbad Blvd. San Diego, CA 92101 Carlsbad, CA 92008 Phone Number: 619. 595. 7802 Phone Number: 760. 268. 400+ AddressofSite: 4600 Carlsbad Blvd. Local Agency (City and County): City of Carlsbad, County of San Diego Assessor's book, page, and parcel number:_::.2..:.1.::.0_-..::.0...c1_:0_-_:3...c9 ________________ _ CaliforniA Hazardous Waste and Substances Sites List Specify list(s): _ __: ___________________________ _ Regulatory Identification Number: ________________________ _ Date of List:· A ril 1 998 Aw~¼r--- Admin/Cowucr/Ha.zWaste 1635 Faraday Avenue• Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 @ _,, -.. .,,.-.... '-" City of Carlsbad I :.IFl,1,11,i·l•i§•Fi ii, ,I§., I HAZARDOUS WASTE AND SUBSTANCES STATEMENT Consultation Of Lists of Sites Related To Hazardous Wastes (Certification of Compliance with Government Code Section 65962.5) Pursuant to State of California Government Code Section 65962.5, I have consulted the Hazardous Wastes and Substances Sites List compiled by the California Environmental Protection Agency and hereby certify that (check one): IB] The development project and any alternatives proposed in this application are not contained on the lists compiled pursuant to Section 65962.5 of the State Government Code. 0 The development project and any alternatives proposed in this application are contained on the lists compiled pursuant to Section 65962.5 of the State Government Code. APPLICANT Name: Poseidon Resources Corp. Address:501 West Broadway Ave.#840 San Diego. CA 92101 Phone Number: 619 595. 7802 AddressofSite: 4600 Carlsbad Blvd. PROPERTY OWNER Name:Cabrillo Power I, LLC Address:4600 Clfrlsbad Blvd. Carlsbad, CA 92008 Phone Number:760. 268, 4001 Local Agency (City and County): City off'Car) shad, county of San Diego Assessor's book, page, and parcel number:_:2:..1'-0=---0;:..;_1.::.0_-.::.3..c7 ________________ _ Specify Jist(s): California Hazardous Waste and Substances Sites List Regulatory Identification Number: _________________________ _ Property 0 Admin/CounieriHazW asie 1635 Faraday Avenue• Carlsbad. CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 @ STATE OF CALIFORNIA HAZARDOUS WASTE AND SUBSTANCES SITES LIST () CITY LIST DTSC PGM: CALEPA5 04/15/88 FACILITY INVENTORY DATA BASE --PAOE 37 HAZARDOUS WASTE ANO SUBSTANCES SITES LIST SORT BY CITY, ST NAME, ST NBR STREET NBR STREET NAME CITY ZIP FACILITY NAME co REG BY • REG IO --------------------------------------------------------------------------------------------------------------------5&00 AVENIOA ENCINAS CARLSBAD 920080000 UNISYS CARLSBAD 37 wac&o 9 000084N94 \044 CARLSBAD VILLAGE CARLSBAD 92008 CHEVRON SERVICE STATION 37 LTNICA 9UT 1000 \044 CARLSBAD VILLAGE CARLSBAD 92008 CARLSBAD CHEVRON 37 LTNKA 9UT2801 571. CARLSBAD VILLAGE CARLSBAD 9316◄ ITT CONTINENTAL BAKING C 37 LTNKA SUl2& 1 t 820 CARLSBAD VILUGE CARLSBAD 82008 GASCO SERVICE STATION 37 LUIKA 9UT272◄ 2100 COSTA DEL MAR CARLSBAD 92009 LA COSTA HOTEL &.SPA 37 LTNKA 9UT242 2500 EL CAMINO AUL CARLSBAD 92008 CHEVRON SERVICE STATION# 37 LTNKA 9UT685 2545 EL CAMINO AUL CARLSBAD FIRESTONE 37 LTNKA 9Utt813 2545 EL CAMINO AUL CARLSBAD J.C.PENNYS AUTO CENTER 37 LTNKA 9UT I 17 2590 EL CAMINO AUL CARLSBAD 92008 SHELL OIL SERVICE STATION 37 LTNKA 9Ul2241 7654 EL CAMINO AUL CARLSBAD 92008 WALTS ARCO SERVICE STATID 37 LTNl<A 9UTl503 3701 HAYMAR CARLSBAD 920010000 SOUTH COAST MATERIALS 37 LTNKA 9UT3452 405 OAK CARLSBAD 92008 PUBLIC WORKS YARD 37 LTNl<A 9UTl950 2160 PAL OMAR Al APDR T CARLSBAD 920080000 PALOMAR Al RP ORT 37 LTNKA 9UT204 I 2210 PALOMAR AIRPORT CARLSBAD 920D8 MCCLELLAN-PALOMAR AIRPORT 37 LTNl<A 9UT2227 ( \ 2210 PALOMAR AIRPORT CARLSBAD 92008 FLIGHT INTERNATIONAL 37 LTNKA 9Ul846 ! 150 PALOMAR AIRPORT CARLSBAD 92008 PEASDUP ANDERSON/UNIONS/ 37 LlNKA 901394 850 PALOMAR AIRPORT CARLSBAD 92008 CARLSBAD PROPERTIES, LTD 37 LTNKA 9Ull953 899 PALOMAR AIRPORT CARLSBAD MOBIL OIL STATION 37 LTNKA 9UI 1499 5335 PASEO DEL NORTE CARLSBAD 92008 WESELOH CHEVROLET 37 LTNl<A 9UT 11B:J .5434 PASEO DEL NOAIE CARLSBAD 920080000 NORTH COUNTY LINCOLN MERC 37 LTNKA IUT3254 .801 PINE CARLSBAD 92008 CARLSBAD UNIFIED SCHOOL 37 LTNKA BUT 1080 2619 STATE CARLSBAD 920080000 PAUL•S AUTOMOTIVE 37 LTNKA 9UT30◄3 2779 STATE CARLSBAD 82001 NORTH COUNTY TRANSIT 37 LTNKA 9UU065 April, 1998 -------------··········-····-··· C - DISCLOSURE STATEMENT Applicant's statement or disclosure of certain ownership interests on all applications which will require discretionary action on the part of the City Council or any appointed Board, Commission or Committee. The following information MUST be disclosed at the time of application submittal. Your project cannot be reviewed until this information is completed. Please print. Note: Person is defined as "Any individual, firm, co-partnership, joint venture, associ(ltion, soci.al club, fraternal organization, co!JlOration, estate, trust, receiver, syndicate, itl this and any other. county, city and county, city municipality, district or 0 otber politicalsubdivision or any other group or combinatioh acting as a unit." Agents may sign this document; however, the legal name and entity of the applicant and property owner must be provided below. I. APPLICANT (Not the applicant's agent) Provide the COMPLETE, LEGAL names and addresses of ALL persons having a financial interest in the application. If the applicant includes a corporation or partnership, include the names, title, addresses of all individuals owning more than I 0% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON- APPLICABLE (N/A) IN THE SPACE BELOW If a publicly-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person: Peter M. MacLaggan Title: Vice President Address: __________ _ 2. OWNER (Not the owner's agent) Corp/Part: Poseidon Resource Corporation Title: ___________ _ Address: 501 West Broadway Ave. Suite 840 Provide the COMPLETE, LEGAL names and addresses of ALL persons having any ownership interest in the property involved. Also, provide the nature of the legal ownership (i.e, partnership, tenants in common, non-profit, corporation, etc.). If the ownership includes a corporation or partnership, include the names, title, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW. If a publicly- owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person: Ernest Soczka Corp/Part: Cabrillo Power I LLC Title: General Manager Title: ____________ _ Address: 4600 Carlsbad Blvd Address: ____________ _ 1635 Faraday Avenue • Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 D ' C - 3. NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (I) or (2) above is a nonprofit organization or a trust, list the names and addresses of ANY person serving as an officer or director of the non-profit organization or as trustee or beneficiary of the. Non Profit/Trust ________ _ Non Profit/Trust ------------ Title ____________ _ Title ______________ _ Address ___________ _ Address --------------- 4. Have you had more than $250 worth of business transacted with any member of City staff, Boards, Commissions, Committees and/or Council within the past twelve (12) months? D Yes D No If yes, please indicate person(s): _____________ _ NOTE: Attach additional sheets if necessary. I certify that all the above information is true and correct~ best of my knowledge. 1;-tJ')... t;-,: Ernest Soczka Print or type name of owner Mike Howes, Hofman Planning Associates Print or type name of owner/applicant's agent H:ADMIN\COUNTERIDISCLOSURE STATEMENT 5/98 Peter MacLaggan, Poseidon Resource Corp. Print or type name of applicant Page 2 of 2 • \ , PROJECT DESCRIPTION/EXPLANATION PROJECT NAME: Encina Generating Station Precise Development Plan Amendment to include Carlsbad Seawater Desalination Plant APPLICANT NAMES: Cabrillo Power I LLC & Poseidon Resources Corporation DESCRIPTION/EXPLANATION: This application is being submitted to amend the Encina Generating Station Precise Development Plan application as submitted on September 26, 2000. This revised PDP proposes an on-site saltwater desalination facility to serve the Carlsbad Municipal Water District (CMWD) and surrounding areas. This PDP has also been revised to include only Cabrillo Power owned properties zoned P-U, consistent with Zoning Code requirements that a PDP be prepared for P-U zoned lands. The following is an overall project description, which includes the proposed Carlsbad Seawater Desalination Plant: In 1948, SDG&E purchased land in then unincorporated San Diego County to build an electricity generating station. In 1954, the Encina Generating Station, located at 4600 Carlsbad Boulevard, began producing electricity and was included in the newly fonned City of Carlsbad boundaries. In 1975, the City of Carlsbad passed an ordinance requiring all land uses in the Public Utility (P-U) zone to have an approved Precise Development Plan (PDP) on file with the City. The Encina Generating Station Precise Development Plan (EGSPDP) has been prepared in accordance with the requirements of Section 21.36.030 (Precise Development Plan) of the Carlsbad Municipal Code. The intent and purpose of this EGSPDP is to: • To establish a baseline for identifying existing facilities and operations on site for the purpose of increasing knowledge and understanding about station operations and .on site facilities; • Enable the City issuance of administrative pennits, building pennits and other ministerial permits and entitlements for property owned by Cabrillo Power zoned P-U; • To evaluate potential for community enhancements (i.e., emissions reduction technology implementation and protection and enhancement of public trails and lagoon shoreline); and, • To provide detailed exhibits for the City's review and approval of the proposed Carlsbad Seawater Desalination Facility to be co-located onsite within the EGSPDP boundaries. In May 1999, the Encina Generating Station was purchased by Cabrillo Power I LLC. In compliance with the requirements of the Carlsbad Municipal Code, Cabrillo prepared the EGSPDP in September 2000 to address all Cabrillo Power owned properties zoned P-U for submittal review and approval by the City of Carlsbad. Concurrent with the initial submittal of the EGSPDP, application was made for a Specific Plan Amendment. The EGSPDP is intended to supcrcede the existing 1971 Encina Specific Plan (SP 144) for the portions of the SP 144 site now owned by Cabrillo Power I LLC. Although referred to as a Precise Development Plan, to be consistent with Carlsbad zoning code requirements, there was no actual development being proposed at the time of the original submittal in 2000. The PDP was meant only to be a description of the existing conditions at the facility to confonn to current zoning code requirements. Since then, Cabrillo Power has worked extensively with City staff to make revisions to the text of the Precise Development Plan. This amended PDP includes these Staff directed revisions as well as the '· ) • proposed Carlsbad Seawater Desalination Plant. The proposed 50 Million Gallons Per Day (MOD) desalination facility will require several on site improvements. These include, but are not limited to; the removal of an existing fuel oil storage tank constructed in 1954, relocation of above ground fuel piping, clearing and regrading the site, as well as building the actual desalination facility and associated infrastructure. Although this facility will utilize seawater, all seawater intake will be fully integrated with the existing generating station. Approximately 104 MGD of seawater exiting the plant cooling system will be diverted, after utilization by the generating station, to the inlet of desalination facility. Approximately half the water taken in will be converted to drinking water, while the remaining portion will be returned to the Pacific Ocean after the desalination process. A portion of the water will be discharged to the municipal wastewater treatment system. The high quality potable water produced by th is facility will then be piped to Maerkle Dam and Reservoir for use by CMWD and surrounding communities. The offsite improvements needed to support the desalination plant are not included in the PDP. 0 0 PROJECT DESCRIPTION/EXPLANATION PROJECT NAME: APPLICANT NAME: ( HA.RN i'i. l :.s;o~) t.t.. c_ &✓ t' / /;:,,? h ,/"' v-.n-z-.r .· Please describe fully the proposed project by application type. Include any details necessary to adequately explain the scope and/or operation of the proposed project. You may also include any background information and supporting statements regarding the reasons for, or appropriateness of, the application. Use an addendum sheet if necessary. Description/Explanation: "i)i)? C>0-01.. ?/"\lz.C•'>li.. "Dii-..>l!Lo:;:>.rn&.i,?LJ=•,v.A,-.!) D~\,,.,a:1"10,0 ?LA.✓i-Pn.o_)U-.-: Project Description 10/96 Page 1 of 1 0 0 Project Description Construction and operation of a desalination facility consistent with the project description contained in EIR 03-05, incorporated by reference, for a portion of Planning Area 3 within the Precise Development Plan for the Public Utility zoning district associated with the Encina Power Station. The property is located east of carlsbad Boulevard, south of Agua Hedionda Lagoon. ' ' - 11/18/2002 11:41 PAGE 02 !~ ' DOC# 1999-0482050 ST REcdRDING REQUESTED BY EWART Tint OF CAllFORNIA JUL 12, 1999 2:29 ... WHF.N RECORDED MA.IL TO: 6212 IJFI.tllt l[CIEDS ~ DIEID lml1Y RE!lliID'S lfFIII 6lm?l' J. 9UTII, CWIIY m:cw.R MILBANK, TWEED, HADLEY & MCCLOY LLP FEES: m.oo 601 Souti:;Figueroa Street, 30th Floor 11\1': 2 · f I I ~~~:~~~~::~: 111111111111111 ~_r_j) 1990-0<820l0 7/! PEEP QF IRVSL SECURITY AG'RfEMf:NI AND fPCTURE FILING ~ _,... . This DEBO OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (11 V-(this "Deed of Trust") is made as of the 8th day of July, 1999, by CA.BRILLO POWER.I LLC, a / Delaware limited liability company (lbe "In!.!!Qr''), in favor of STEWART 1TILE GUARANTY COMPANY, a T-corporation(the ~"), forrhebencfitofBANKOF MmR!CA. N.A., foonerly Nauonsbank, N.A., as the Collateral Agmt for the Lenders referred to below (in such capacity, together with its successors in such capacity, the "Beneficiary"). · REC !TA LS: A. Pursuant to the Credit Agreement, dated as of June 30, 1999 (as the same is modified, amended Of supplemented from :ime to time, the "Cred:t Agreement"; except as otheiwise herein expn:ssly defined Ot pro~'ided, di terms defined in t.'ie Credit Agreement are i:.sed hercin i=s d~fined therein), among West Coast Power LLC, a Delaware limited liability company (the "Parent Companv"), the lenders specified in the Credit Agreement (:he "Lenders") and Bllllk of America, N.A., formerly NationsBank. N-"'~ as administrative agent 211d collateral agent, the Lenders have agreed to make certain loans to the Pll!ent Company. • B. The Trustor, certain subsidiary guarantors pl!ftY thereto, and the Bencficiazy are party to that certain Guarantee and Security Agreement, cated as of Juoe 30, 1999 (as the same is modified, amended o, supplemented from time to time, the "Subsidiary Guarantee"). pursue.at to which, among ofaer things;lhe Ttcstor has guaranteed all of the obligations of the Puent Company l!nde,r the C~it .-.greemcnt. C. It is a requirement t111der Section 8.27 of the Credit Agreement that the Trustor execute and deliver this Deed qf Trust. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acl:nowledged, lhe Trustor herei>y agrees with .the Bencficiazy as follows: · PM ' ' 0 • 11/18/2002 13: 29 76 443 PAGE 02 - Previously Obtained Coastal Development Permits Enclna Power Plant Site (all perllllts is1aed to SDG&E except for last permit as noted) Permit Type Date Permit No. Descrlpdon of Perlllltted Equipment or Actlvitv Develo1>mcnt Permit 3/22/73 X-0037 Gas turbine modifications . Pennit 3/ln4 F-13.31 Dred"" outer la1100n n-i .. e Pennit 10/22/74 Fl83S Dred"" outer Iuoon Develomncnt Permit 3/8/75 F2124 Install tank No. 7 Develooment Permit ll/18n5 7875 Construction of Stacie s Develnnment Permit 516111 FSS36 MainteJJance dredal""' ofls°""'n Deve' Permit 7129/82 6-82-286 Construction of a distnbution substation Development Permit 11122/8S 6-85-S38 Danolition and consttuction ofvarioua bllildinn Development Permit 2/6186 6/85/646 Consuuction of high pressure gas ti111Stllission line mire station DeveloomentPermit 412S18S 6-85-80 Construction of cnl> wall Develooment Permit 9/12/89 6-89-226 Installation of steel tanks for wastewater Develnnment Permit 4112/89 6-89-39 Construction of electric distribution line Administrative Permit 4/10/91 6-90-31-4/BP Removal of concrete rubble Em Pennit 12/24/90 6-90-314G Shoreline modification Devetooment Permit 3/12/91 6-91-11 Installation of tank Devclomnent Permit 718/92 6-92-65 Reconstruction of revetment Administrative Permit 2/24193 6-93-lSBP Construction of mdboatclock Develooment Permit 2117/94 6-93-193 Dred.,.;n,. activitv in la2oon Administrative Permit 7121/94 6-94-84-BP Construction of an air pollution control o,allimncnt structure Develonment Permit 11/4/97 6-97-45 Dredl>ine of' outer basin Imrelomnent Pc:miit 11/4/97 6-97-46 Dred1ru12 for • middle basin Develonment Permit 2/25/98 6-97-83 Dredging for innet" and Olllet" lagoon Devefnnmcnt Pennit 8/00 6-0-49 Olltet" ia"""'n rin ""' n,r,ajr Developmc:ut 11/16/01 6-01-80 Dredging for inner and outer lagoon Permit<Cabrillo Power) on a2enda 0 RECORDING REQUESTED BY STEWART TITLE OF CALIFORNIA RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Dickstein Shapiro Morin & Oshinsky LLP 2101 L Street N.W. Washington, D.C. 20037 Attn: Patrick W. Lynch, Esq. 0 The real property is located in the City of Carlsbad, County of San Diego, in the State of California. See attached Transfer Tax Declaration. ,,/- Assessor's Parcel Number: 210-010-36 (portion). oll /-CJ/0-,3d, -oD SHORT FORM OF GROUND LEASE AND EASEMENT AGREEMENT THIS SHORT FORM OF GROUND LEASE AND EASEMENT AGREEMENT (this "Short Form"), is made and entered into as of J~ 11, 2003 (the "Effective Date"), by and between CABRILLO POWER I, LLC, a Delaware limited liability '-· • company, as lessor and grantpr ("Grantor"). having an address at 4600 Carlsbad Boulevard, Carlsbad, California 92008, and POSEIDON RESOURCES,.., (CHANNELSIDE) LL,C, a Delaware limited liability company, as lessee and grantee ("Grantee"), having an address at 501 West Broadway, Suite 840, San Diego, California 92101, with reference to the following recitals: A. Grantor is the owner of that certain parcel of real property located at 4600 Carlsbad· Boulevard, Carlsbad, California 92008, as more particularly described on Exhibit "A" attached hereto and as generally depicted (by cross-hatching) on the map attached hereto as Exhibit ·s· (the "Leased Premises"). Grantee desires to construct and operate a reverse osmosis seawater desalination plant and certain related facilities on the Leased Premises. To that end and for that purpose, Grantee desires to lease the Leased Premises from Grantor, upon and subject to all of the terms and conditions set . forth in the Agreement (as defined below). 8. Grantee also desires to construct and operate the Easement Improvements (as defined in the Agreement), which consist of certain facilities located off-site the Leased Premises that are necessary for the operation of the Water Plant (as defined in the Agreement). To that end and for that purpose, Grantee desires to obtain from Grantor certain easements for the construction and operation of the Easement 1 d:\data-wpS\dynegylendna\poseidon\docslmemoranda-short lonnslshort form of ground lease and easement agmt-final.doc 3 7 3 4 ·, ·- 0 0 Improvements, upon and subject to all of the terms and conditions set forth in the Agreement. C. To give effect to the foregoing, Grantor and Grantee (together the "Parties" and each a "Party") have entered into that certain unrecorded Ground Lease and Easement Agreement of even date herewith (the "Agreement"). The Parties have executed and acknowledged this Short Form and are recording the same for the purpose of providing constructive notice of the Agreement and Grantee's rights and obligations thereunder. Capitalized terms used and not defined herein have the meaning given the same in the Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and promises of the Parties contained in the Agreement and herein, the Parties hereby agree as follows: 1. Lease. Grantor hereby leases the Leased Premises to Grantee, and Grantee hereby leases the Leased Premises from Grantor (the "Lease"), subject to all of the terms and conditions of the Agreement. The Lease shall be for the sole purpose of development, construction, operation, maintenance, use and removal of the Leasehold Improvements and for no other purpose, as provided in the Agreement. 2. Grant of Easements. Subject to all of the terms and conditions of the Agreement, Grantor hereby grants tQ Grantee t/le following easements, each of which shall (i) be non-exclusive, (ii) be appurtenant to the Leased Premises, (iii) terminate concurrently with the Lease and (iv) be for the sole purpose as set forth below in this Section 2 with respect to such easement; provided, however, that Granter grants such easements to Grantee (a) only if and to the extent that, as of the Effective Date, Grantor (1) owns the lands that will be encumbered by such easements and (2) has the right to grant such easements and (b) without any representation or warranty regarding such ownership or right to grant: · 2.1 An easement for the sole purpose of constructing, operating and maintaining one (1) water intake pipeline, one (1) water discharge pipeline, one (1) intake p1,1mp station and one or more retaining walls between the Leased Premises and the Power Plant's cooling water discharge facilities, which easement shall be located on, over, under, upon and through a strip of land, the precise location of which is described on Exhibit •c• attached hereto (the "Intake/Discharge Easement Area"); 2.2 An easement for the sole purpose of constructing, operating and maintaining one (1) water transmission pipeline, which easement shall be located on, over, under, upon and through a strip of land, the precise location of which is described on Exhibit "D" attached hereto (the "Product Water Pipeline Easement Area"); 2 d:\data-wp8\dynegy\encina\poseidon\docs\memoranda-short forms\short form of ground lease and easement agmt•fmaldoc 3 7 3 5 - 0 2.3 An easement for the sole purpose of constructing, operating and maintaining electrical lines, which easement shall be located on, over, under, upon and through strips of land, the precise locations of which are described on Exhibit "E" attached hereto (the "Electrical Line Easement Areas"); 2.4 An easement for the sole purpose of constructing, operating and maintaining two electric transformers, which easement shall be located upon plots of land, the precise locations of which are described on Exhibit "F" attached hereto (the "Transformer Easement Areas"); 2.5 An easement for the sole purpose of constructing, operating and maintaining an electric substation, which easement shall be located upon a plot of land, the precise location of which is described on Exhibit "G" attached hereto (the "Substation Easement Area"); 2.6 An easement for the sole purpose of constructing, using and maintaining one (1) filter and backwash sanitary discharge pipeline and one (1) domestic water pipeline to discharge liquid waste from the Water Plant to the regional sewer system and to provide the Water Plant with a source of potable water, respectively, which easement shall be located on, under and upon an area of land, the precise location of which is described on Exhibit "H" attached hereto (the "Sewer/Domestic Water Easement Area"); 2.7 An easement for the sole purpose of ingress to and egress from the Easement Areas, which easement shall be located over, across and through strips of land, the locations of which are generally depicted (by cross-hatching) on the map attached hereto as Exhibit "I" (the "Ingress/Egress Easement Areas"); 2.8 An easement for the sole purpose of (i) ingress and egress to provide pedestrian and vehicular access to the Leased Premises and (ii) constructing, using and maintaining a tum-around area for trucks and other vehicles, which easement shall be located over, across and through that certain roadway, the precise location of which is described on Exhibit "J' attached hereto (the "Access and Tum-Around Easement Area"); and 2.9 An easement for the sole purpose of using certain portions of the existing parking areas on the Power Plant Property in a manner consistent with local land use requirements and to the extent necessary for the Water Plant. 3. Term. The initial term of the Agreement and this Short Form shall commence on the Effective Date and shall expire at 11 :59 PM on the day immediately preceding the thirty-third (33rd) anniversary of the Commercial Operation Date, unless sooner terminated as provided in the Agreement. Subject to the applicable provisions 3 d:\data-wp8\dynegylencinalposeidonldoc:s\memoranda-shorl lormslshort form of ground lease and easement agmt-final.doc 3 7 3 6 C 0 of the Agreement, Grantee has an option to extend the Term for up to two (2) consecutive additional periods of ten (10) years. 4. Other Provisions. Reference is hereby made to executed copies of the Agreement in the possession of the Parties, respectively, for all of the terms and provisions thereof, and such terms and provisions are incorporated herein and made a part hereof in all respects as though fully set forth herein. Without limiting the generality of the foregoing, the Agreement also contains various covenants, obligations and rights of the Parties, including, without limitation, provisions relating to Rent, provisions relating to development, construction and alteration of the Grantee Improvements, priority rights in Grantor, early termination rights, restoration of the property, assignment and lender protections. 5. Binding on Successors and Assigns. The Project Properties and each part thereof shall b!l held, conveyed, hypothecated, encumbered, leased, used and occupied subject to the covenants, terms and provisions set forth in the Agreement and herein, which shall run with the Project Properties and each part thereof and interest therein as equitable servitudes, and shall be binding upon and inure to the benefit of the Parties and any other person and entity having any interest therein during their ownership thereof, and their respective permitted grantees, assignees, successors and assigns, and all persons claiming under them. 6. Purpose of this Short Form. This Short Form is prepared for the purpose of recordation only, and does not supersede, modify, amend or otherwise change the terms, conditions or covenants of the Agreement, and this Short Form shall not be used in interpreting the terms, conditions or covenants of the Agreement. in the event of any conflict or inconsistency between this Short Form and the Agreement, the Agreement shall control. 7. Counterparts. This Short Form may be executed in counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same document. [SIGNATURES ON NEXT PAGE] 4 d:\data-wp8\dynegylenclnalposeldon\docs\memoranda-short forms\short form of ground lease and easement agmt-final.doc 3 7 3 7 ·-... .. ,. 0 IN WITNESS WHEREOF, the Parties have caused this Short Form to be duly executed as of the Effective Date. GRANTOR: GRANTEE: Name: .s· Zlfzu /t(. &d/L/CJ nt1e: tfC-,(_ /¾uob07 POSEIDON RESOURCES (CHANNELSIDE) LLC, a Delaware limited lit~mpany By:5?& k\~ Name: Q...,~ .J./\,o.~t>.~ Trtle: Ll I c.... IL ~> I o,c:;,-;i- d:\data-wpS\dynegy\ecina\poseldon\does\memoranda-short forms\short form of ground lease and easement agmt-final.doc 5 3 7 3 8 - C ACKNOWLEDGMENTS . STATE oF Co.L..k9vY)-ll)--., COUNTY OF~ DlQ %U ) ) ) ss. ~ orJ, ½ lLr . 200 • before m • the .under;;i9ned, a notary public in and for said State, pers~y appeared ~:::;t!;:!::!,.!Y'1Ll_i!....L:...·~ r·n!fttV~· t"-K:!5,,~--=======----========--,-, personally known to me (Qf ~ed to me on the basis of satisfactory evidence) to be the person°ts} whose name~ is.l'fu:e subscribed to thewithin instrument and acknowledged to me that h~ executed the same in hi~ authorized capacity~. and that by hislher7ttleir signature~on the instrument the perso/1(&). or the entity upon behalf of which the person~acted. executed the instrument. STATE OF ~0.1lfu{:\'\~~ COUNTY OF Si{).,Y\ D~ ) ) ) ss. en a a OFACW. SEAL I CHRISTI WAYMIRE NO~t~~A' "'! ~MM. EXP. DEC. 4, 2005 f said Sta~;~~ ~~eared • -=========-----.... .,_, -pe,.rs'""o"'n"'"a";;llc:::y7k_,noL!.w-"n~to ..... m._e'-:"-rf::.:ro:1.v....1ed-:-:-to_m_e_o_n--;;:th-e-;b:-a-::s-;:is of satisfactory evidence) to be the person'($) whose name'ts). I subscrib instrument and acknowledged to me thl!t hell:!le/t'h8¥,...executed the same in· his/har/t&!ir- authorized capacity(Tes). and that by hisll'lerilheir signature'ts}..on the instrument the person(s}. or the entity upon behalf of which the person(s}.acted. executed the instrument. , e no noon e a a n e 6 d:\data--wpS\dynegy\endna\poSeidon\docs\memoranda•short forms\short fonn of ground lease and easement agmt-final.doc 3 7 3 9 ,..., ,,-, ~ CITY OF CARLSBAD "-11 POLICIES AND PROCEDURES .NUMBER: 7 SUBJECT: POLICY FOR INTERPRETATION OF CMC 21.42.01 S 21.53.090 AND 21.53.110 EFFECTIVE: Au st 1, 1996 SECTION: COMMUNITY DEVELOPMENT SUPERSEDES: NIA PURPOSE To clarify and interpret Carlsbad Municipal Code Sections which deal with temporary modular buildings. This policy also sets forth approval guidelines for strr.amlining the expanded allowance of temporary modular buildings in the business park and for uses associated with the sale of lots and/or units in residential subdivisions. BACKGROUND The Carlsbad Municipal Code currently only allows temporary modular buildings under three circumstances: A. 21.42.0l0(S) CMC -Interim use of trailers or mobilehomes for commercial offic"es which have been approved for permanent construction. B. 21.53.090 CMC -Temporary real estate offices for selling lots in new subdivisions; and C. 21.53.110 CMC -Temporary structures for tools, equipment, or construction offices while permanent construction is underway. Manufacturing type businesses have recently requested the permission to utilize these types of buildings for limited periods of time for other purposes, such as temporary training facilities and temporary business use while permanent facilities are remodeled. Real Estate developers have requested modular sales offices in planned developments that have model homes. These requests appear consistent with the intent of the Code, but are not in compliance with the precise wording of the Code. This policy acts as an interpretation of the Code and serves as an interim step in developing procedures and permits that will streamline the approval process. It is not the intent of this policy to allow an expansion of temporary modular buildings as sales facilities in commercial zones or to substitute temporary modular buildings for permanent buildings. -/' ,' ,,/-' Appr]v di.·· By. :,,,-,_·· 7/'/ ' /~-'(~ ,, - _, ----~----· .. ---------------------------- NUMBER: 7 c CITY OF CARLSBAD ~ POLICIES AND PROCEDURES SUBJECT: POLICY FOR INTERPRETATION OF CMC 21.42.01 S 21.53.090 AND 21.53.110 EFFECTIVE: Au t 1, 1996 SECTION: COMMUNITY DEVELOPMENT SUPERSEDES: NIA INTERPRETATIONS 1. 21.53,090 CMC allows temporary real estate sales offices without a discretionary permit for the purpose of selling lots in that subdivision. The temporary offices can remain for only one year, unless extended by the Planning Commission on a yearly basis, for good cause. It shall be the policy of Community Development to apply this section to all subdivisions, including planned developments and subdivisions that include models. 2_ 21.53.110 CMC allows temporary structures for housing tools and equipment, or contammg supervisory offices in connection with major construction. (expanded interpretation-see below) 3. 21.42.010(5)(S) CMC with the approval of a Conditional Use Permit, allows temporary trailers or mobile homes for commercial offices. The purpose of this section is to allow the temporary offices in anticipation and during the construction of the permanent facilities. (no change in interpretation) Currently the code is silent on temporary structures m connection with remodels or as a single time training facility. It is clear that remodels, tenant improvements, and large scale employee training efforts can be very disruptive to existing businesses and the City desires to assist in the mitigation of such disturbances. One way to provide mitigation is to allow temporary facilities on-site for training or for offices during remodel and tenant improvements. It shan be the policy of Community Development to administratively allow temporary facilities pursuant to the procedures established below for training where on-site accommodation is unfeasible, for offices during remodel and/or tenant improvements, and for other unique circumstances as determined to be consistent with this interpretation. Initiated By: Approved By: ' • II ._, CITY OF CARLSBAD , ; POLICIES AND PROCEDURES NUMBER: 7 SUBJECT: POLICY FOR INTERPRETATION OF CMC 21.42.0I0(S), 21.53,090, AND 21.53,110 EFFECTIVE: Auirust 1, 1996 SECTION: COMMUNITY DEVELOPMENT SUPERSEDES: NIA PROCEDURE 1. The business shall apply to the Community Development Director in writing for the allowance of the temporary modular buildings. The request shall contain the following information: a. The proposed use of the modular buildings. b. The term of the use of the buildings. C. The reason the use cannot otherwise be accommodated within the permanent buildings on the site. d. A site plan showing the proposed location of the modular buildings. e. A statement agreeing to completely remove the temporary modular buildings on or before the agreed upon date. / 2. The request mu(o; be unanimtiflly approved by the Community Development Director, Planning Direc or, Building fficial, and the Fire Marshal. The Community Development management team reserves the nght to deny an application for cause. 3. The request will be reviewed with respect to the following general criteria: a. The modular buildings must be architecturally compatible with the surrounding permanent buildings. b. Parking shall not be negatively affected by the use of the temporary modular buildings. c. Temporary landscaping may be required to s.creen the temporary modular buildings from public views and/or adjacent properties. d. The modular buildings shall be listed with the State as approved for commercial uses. e. They shall be installed with listed earthquake bracing systems and shall be accessible to the disabled. f. The temporary electrical and plwnbing systems shall be installed as for new permanent construction. g. The buildings shall be placed so as not to restrict Fire Department access to either the permanent buildings or the temporary modular buildings. h. The temporary permanent buildings shall not be placed within 20 feet of any fire hydrant or other fire protection equipment. Initiated By: Approved By: ' i ! i i i ' j i ,i r i I 45.00 0.0 I PROCESS PIPING AND ELECTRICAL POWER AND SIGNAL SUPPORT RACK ,i I fTPl ~ AT LAGOON 20.00 FUTURE TANK TK-100 500GAL ULTRA FILTRATION SYSTEM ----- l 15.40 12.00 il OPERATIONS OFFICE 40.0 I 40.00 FILTRATE TANK TK-300 500GAL STORAGE 60.0 I 80.0 PROCESS PIPING AND ELECTRICAL I POWER AND SIGNAL SUPPORT RACK ITJ®®~ ii 11 !~\fljq:ji '-, -----~, "·" El RO UNIT PRE-TREATMENT ~10.00---l l 8-?0 1---,-_12.00---_, ROUNIT 0 iii,-; I ;-r '(/) Eh . * ii;!o I ~ ~l? t ~ ;• "--si 0 iii o ~ en ~ ~ ii! w -<C O -0 w >-u. er 8 o ?; 0 PDP 0)-0 2.. -n.+ Lakota -•-I En~-Systerns, LLCC::ffi::J ANALYSIS A DESIGN A FABRICAllOO 11:13411~MNTAl'li SIJrTED SMOEOOCA.112121 •=- --r.------•~-•~"•~~~ I I ~:n~~,:C.,::"~9W.L -,___ aoa>ZIIJY:JGS 0, CIIIECft.Y 011 -11.Y. IT IIW.l. llt 11!111 AS • ..S 0, ~-10~~=::-::t~~ --F. Stonding Worrior 111H<lUT M -TIEN <:ONSDIT Of l>l<OTA EJGNEDltD S'YSlEIIS. -D,l,!l, 11 au :IIIOl --ff. ALW EQUIPMENT LAYOUT ARRANGEMENT Reverse OSMOSIS Pl\ot SysteM Sea'w'o.ter RD Pilot SysteM Co.rlsbo.d Deso.llno.tlon Project -· 1--1-· 202-360 PI010 J Of J -f'oseidM Rnoun:e -1-= >•< >> .. <:< °'"'..,, ,u, J60EV,1J RECEIVED OCT 11 2002 CITY OF CARLSBAD PLANNING DEPT. PD-P oo-O ?.-C-yil:A) \ l \ i ! RECEIVED OC1 11 WC2 ClTY OF CARLSBAD PLANNING OEPT . -p DP oo-0-z.. C f;\-o+ ') RECENED OCT 11 2002 CITY OF CARLSBAD PLANNING DEPT. pdp :>0-0'1.. Cpil:,-t I""-,.,., ■ Hofman Planning Assoc ates Planning Project Management Fiscal Analysis September 28, 2000 Michael J. Holzmiller, Planning Director City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 RE: Submittal of Cabrillo Power Encina Generating Station Precise Development Plan Dear Michael: Attached please find IO copies of the Cabrillo Power Encina Generating Station Precise Development Plan (EGSPDP) for your review and use. This Plan has been prepared in accordance with City of Carlsbad Municipal Code Section 21.36.030. A finding of Prior Compliance with respect to environmental evaluation is assumed, based on an agreement reached on August 21, 2000 in a meeting with Ernie Soczka of Cabrillo Power, Marty Orenyak, Debbie Fountain, Scott Donnell and yourself. Prior Compliance is based on the following: • No development is proposed in the Precise Development Plan; and, • The South Carlsbad Coastal Redevelopment Plan EIR, certified by the City of Carlsbad in June 2000, previously evaluated impacts associated with ongoing operations at Encina Generating Station; and, • The Encina Generating Station Precise Development Plan will be incorporated into the South Carlsbad Coastal Redevelopment master planning efforts. Sincerely, /J~~"--- Bill Hofman 5900 Pasteur Court • Suite 150 • Carlsbad • CA 92008 • (760) 438-1465 • Fax: (760) 438-2443 \, ,,,., ~ . '(""" .. • ~ PLEASE NOTE: r, f, ·; \ -' . f' ·-\,., ·-n':" • \ \ J Time limits on the processing of discretionary projecf?x ilbl'rshed by state 1 aw do not start until a project application is deemed C""'P ete by the City. The City has 30 calendar days from the date of application submittal to determine whether an application is complete or incomplete. Within 30 days of submittal of this application you will receive a letter stating whether this application is complete or incomplete. If it is incomplete, the letter will state what is needed to make this application complete. When the application is complete, the processing period will start upon he date of he completion letter . . fl- To be ~"ii,led with receipt to application Copy for file PLEASE NOTE: Time limits on the processing of discretionary projects established by state law do not start until a project application is de~med complete by the City. The City has 30 calendar days from the date of application submittal to determine whether an application is complete or incomplete. Within 30 days of submittal of this application you will receive a letter stating whether this application is complete or incomplete. If it is incomplete, the letter will state what is needed ~o make ~his ~pplication complete. When the application is complete, the processing period will sta-rt-ui>9n t~,/~ate-of the completion letter. ·&c_ '/ ,, , \ ,•") ,# Applicant ~ignature: !~$ 'ft"": it:::rr: ----- ---_,,..-, 5 07 Staff Signature; _I ~----;7"---- ,,_ I I . Date: 1-:,/1?,,.:)L To be stapled with receipt to application .,,,, Copy for file 1. I.I 2. 2.1 2.2 2.3 2.4 2.5 2.6 2.7 3. 3.1 32 3.3 3.4 4. 5. 5.1 5.2 6. 6.1 6.2 6.3 6.4 6.5 7. 7.1 72 7.3 7.4 7.5 8. 8.1 8.2 8.3 8.4 9. 10. 11. 11.1 11.2 11.3 11.4 TABLE OF CONTENTS DEFINITIONS AND RULES OF CONSTRUCTION ........................................................................................ 1 DEFINED TERMS ...............•.........•............•............•.... , ........•.•.............•..•...............•••........•.••.•............•...•....•.... I GRANT OF EASEMENTS TO PLANT OWNER ................... , .......................................................................... 6 EASEMENT FOR WATERLfNES AND FIRE SAFETY TANKS. . ..........•..•.••..........•........•••....•.••••••........•...•••......... 6 DRAINAGE •.•....•.•....•. -.. -· .....•..•..•. -... · ..•.•....•....... ·•· ...............•........•••.•.........•..•...•.••......... · .•.....•..•.....•.•..•.....•.... 6 ACCESS •••••.•...........•.....•......•.....•.•....•...........•......•.............•.•.•...•.....•.•.........•.•....•.•.......•......•••...... ---·····6 SUPPORT .....•••.....•••..•...•.••.......••.•.....•...•....•. ·-····••••••····••••••····•·•••·•··············•••········••••··•·•·•·•··••••••••••·······•··••···· 7 ENcROACIIMENTS ......•..•............•..........•.........................••.............••••.•.......•...•.••.••..............•....... ---·····7 EASEMENT FOR USE OF OTI!ER PLANT IMPROVEMENTS .....••......................•..••.....•........••..•...............•.........••..• 7 INTENTIONALLY OMrITED •..................................................................................................................... 7 USE OF PROPERTY AND EASEMENTS ......................................................................................................... ? ~°:~N::::::::::::::::::::::::::::::::::::::::::::::::::::,:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::; CIIANGEINGROIJND SURFACEEU!YATIONS ···································································································8 LANDSCAPE MAINTENANCE ••.........••••.•.••.....••••.•.•.••..•....•.....•.................•••.•...•....•....•.•••••.•.......••.....•.............•.. 8 MAINTENANCE AND REPAIR ................................................................................•.............•...•..................... 9 NEW IMPROVEMENTS OR A.LTERATIONS; RELOCATION OF EASEME.'ITS ........................................ 9 NEW IMPROVEMENTS OR AL TERA TIONS •.......•......•...••..•.......................•...•...........•..•.........................•............. 9 RELOCATION OF EASEMENTS ..•....•••..•.......•..•.•...........••...•••••..•.••.....•...••.•••...•.•.•....••......•......•.••..•..•..•..•••••......•. 9 REGULATIONS REGARDING MAINTENANCE AND CONSTRUCTION WORK ..••...........•................... 10 No UNREASONABLE INTERFERENCE.············································································································· 'o CoMPUANCE WITH REQUIREMENTS OF LAW ••..•......•..........•....•.•....••.•••••..•••.••.•••.•.•..•••....•.....•••..••...•.••.••.....•• I 0 REPAIR OF DEFECTS .....•..•.••.........•.•..........•...•.......•...•......................• , ...........•..••.........•............•..•....•.••..••...... 10 SAFETY MEASURES .•....•...•••........•....•......•.............•...•.••....•....•.................•..•..•••........•...............•.......•.........••. 10 NOTICEOFWORK. •••.......•..•....••..••••.•......•..•....•..•.•.•.•••.•••......•••.•..••...........•..••.•....••....•...••.••..•••..•.....•.•............ 10 INSURANCE ........................................................................................•..............•........................... ' .•.............. 10 GENERAL LIABIUTY !NS URAN CB .......•....•.•••••••••••.•........•.....••.•....••••.•..•...••• : ....•.......•....•.........................••...•• 10 WORKERS' COMPENSATION!NSURANCE ••.. ; ..••.•.•..••..........•...••.•...•...•..••...•..•...•..•••.•.•.•..•••••...•...........••..........• 11 AUTOMOBILE LIABILITY INSURANCE .. : ..........•.•••••.•. ; ..••..•..•.•..........•.......•.•.•....•.....•....•...•.•......•...••.....••......•.. 11 ADDITTONAL INSURED •.•.........•......••........•.•.....................•••..•....•.................•....•.........•......•.......•......•............. 11 PROPERTY INSURANCE .••.••..••.•••.•••.......••.•.•....••••..••.•...•••.••.••.•.....•.............•.•..••..•..••...•.•..•••••.••.•........•.. ·····••··· 11 INDEMNIFICATION ....................................................................................................•................................... 11 MUTUAL INDEMNIFICATION •....•..•.•...•..•..••... , ...•.•....•.....•••........••.•..... : .•....•....•.......•....•............•.•..•.•....•.......•.. 11 MUTUAL ENVIRONMENTAL INDEMNIFICATION •••...•..•.•....•.......•••..•..••••••••••....•.••.....•.••••.....•......••.••••..•...••••.•.. 11 PROCEDURES RESPECTING THIRD PARTY CLAIMS ..•..••••.••...••...••.........••.•••........••••....•...........•••••.•••••...••.•..•..• 12 GENERAL INDEMNIFICATION PROVISIONS ......••......•...•.....•.......••..............•.......•...••.••••.......•...........•............... 13 CONSEQUENTIAL DAMAGES; DISCLAIMER ............................................................................................ 13 DESTRUCTION OF IMPROVEMENTS ........................................•.....................•...................................... 13 DEFAULTS/ENFORCEMENT ................•...................•......•••...............................•.........................•............ 14 DEFAULTS .•••.•••••••....•••..•......•......•.......•...•..•..•••....•.•..............•...•.....•......•••......••.•....•••..•••.......•..........•.•....•••..• 14 GENERAL REMEDIES .•.....•.......•••.....•...•..........•.•.....•...•.......•.•.•.•.......•...•.•.•......••.•.••.....••••.•.••..••.•.....•.•.•.••.•.•..• 14 FAILURE TO ENFORCE NOT A WAIVER OF RIGHTS ....••..•......•. : ....................................•..•.•.•••............•...•••••.• 14 TERM; TERMINATION ..........•..........................•....................................•................••.........••.....•...........•.•.......•. 14 I SD\3728052 ··• '"" ., . ..,.,.. .... ,., • ., I -·•...-··-····-.-, ,-.. I• --c··--·····-···-"1·,·-·········- er 11.5 FORCEMAfEUJtE ..•.••..................................•...................................................................•............................... 14 12. ARBITRATION ............................................................................................................................................ 15 12.1 AGREEMENT TO ARBITRATE ........................................................................................... , .............................. 15 12.2 SUBMISSION TO ARBITRATION ....................................................................................................................... 15 12.3 SELECTION OF ARBITRATION PANEL. ........ : .................................................................................................... 15 12.4 PREHEARING DISCOVERY ............................................................................................................................... 15 12.5 ARBITRATIONHEAfuNG ................................................................................................................................. 16 12.6 AWARD ............................................ · ...................................................... ' ...................................................... 16 12. 7 PROVISIONAL REMEDIES ........................... --............................................................................................. 16 12.8 !lNTRYOFAWARDilYCoURT ................................................................ : ....................................... : ............... 17 12.9 COSTS AND ATTORNEY'S FEES ....................................................................................................................... 17 13. RUNWITHLAND ....................................................................................................................................... 17 14. RIGHTS OF LENDERS ................................................................................................................................ 17 14.1 PRIORITY OF LIEN OF MORTOAGE .................................................................................................................. 17 14.2 NOTICEOFDEFAULT ...................................................................................................................................... 18 14.3 CURING DEFAULTS ......................................................................................................................................... 18 14.4 CONFIJCTS ..................................................................................................................................................... 18 15. MISCELLANEOUS PROVISIONS ............................................................................................................. 18 15.1 CONSTRUCTIVENOTICEANDACCEFTANCE ................................................................................................... 18 15.2 NOTICES ....................................... , ................................................................................................................ 18 15.3 NO WAIVER ................................................................................................................................................... 19 15.4 Hl!ADINOS ...................................................................................................................................................... 20 15.5 SEVERABIUTY ................................................................................................................................................ 20 15.6 ESTOPP.ELS ..................................................................................................................................................... 20 15.7 CUMULATIVE REMEDIES ........................................................................................... : .................................... 20 15.8 ATTORNEYS' FEES AND CoSTS ...................................................................................................................... 20 15.9 APPROVALS .................................................................................................................................................... 20 15.10 AMENDMENTS .............................. · .................................................................... · ........................................... 20 15.11 GoVERNING LAw ........................................................................................................................................... 21 15.12 ENTIRl!AOREEMENT ................................................................. : ..................................................................... 21 15.13 COUNTERPARTS ............................................................................................................................................. 21 15.14 ExHIBITS ........................................................................................................................................................ 21 15.15 No THIRD PARTY RIGHTS .............................................................................................................................. 21 15.16 FIJRTHERASSURANCES .......................................................................................................... ___ ....... 21 IS.17 EXCEPTIONS TO EAsEMENTS .......................................................................................................................... 21 15.18 EVIDENCEOFTERMINATIONOFEAsEMENTS ................................................................................................. 22 ii SD\3728052 TABLE OF EXHIBITS EXHIBIT A-SURVEY MAP OF EASEMENTS EXHIBIT 2.1 -WATER LINES AND FIRE SAFETY TANKS EXHIBIT 2.2 -DRAINAGE iii SD\372805.2 .. RECORDING Rh :~ED BY STEWART TITLE Of CALIFORNIA RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO AND MAIL TAX STATEMENTS TO: Cabrillo Power I LLC IDf·· '7 Symphony Towers 0 (Q) ~ U 750 B Street, Suite 27 #f:::!J San Diego, CA 92101 EASEMENT AGREEMENT ,.,. .. ·'114: IJU6DW.. If TllIS IXID£tlT IWl RECIRttD ON !DJ 25, 2003 llWEIT IU!llfR 2003-14112bl GEGORY J. m, Clllffi' mra SfM DIEOO lllOOV lmJ!lER 'S !FFICE Tl!£: 10:45 fll (Above Space For Recorder's Use Only) / This EASEMENT AGREEMENT (the "Agreement") is made and entered into as o(tl/25 ,2003, by and between SANDIEGO GAS &ELECTRIC COMPANY, a California corporation (with its successors and assigns, "SDG&E"), and CABRILLO POWER I LLC, a Delaware limited liability company (with its successors and assigns, "Plant Owner"). RECITALS A. Pursuant to that certain Asset Sale Agreement dated as of December 11, 1998 (the "Asset Sale Agreement"), SDG&E agreed to sell to Dynegy Power Corp., a Delaware corporation ("DPC"), and NRG Energy, Inc., a Delaware corporation ("NRG"), and DPC and NRG have agreed to purchase from SDG&E through the Plant Owner, whose members are subsidiaries of DPC and NRG, fee title to certain real property located in the City of Carlsbad, County of San Diego, California, (the "Initial Plant Land''), together with certain buildings and improvements located thereon. B. SDG&E and Plant Owner executed that certain Option Agreement dated May 20, 1999 a memorandum of which was recorded May 20; 1999, as document no. 1999- 0347271 (the "Option Agreement"), pursuant to which Plant Owner granted to SDG&E the option to purchase portions of the Initial Plant Land. C. Pursuant to the Option Agreement, SDG&E has purchased a portion of the Initial Plant Land. Accordingly, and as is contemplated by the Option Agreement, Plant Owner and SDG&E desire to enter into this Agreement for the purpose of granting to Plant Owner certain easements that are required to facilitate the operations of Plant Owner now that SDG&E has purchased a portion of the Initi,J Plant Land. NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. DEFINITIONS AND RULES OF CONSTRUCTION 1.1 Defined Terms. The following terms, when used herein with initial capitalization, shall have the meaning specified in this section. The singular shall include the SD\372805.2 ·-· ., . ., ... ,, ., plural and the masculine shall include the feminine and neuter, and vice versa. The terms "includes" or "including" shall not be limiting, whether or not followed by the words "without limitation." References to a section shall mean a section of this Agreement unless the context requires otherwise, and reference to a given agreement or instrument shall be a reference to that agreement or instrument as modified, amended, supplemented and restated through the date as of which such reference is made. References to Laws shall be deemed references to such Laws as they may be amended from time to time. This Agreement and any documents or instruments delivered pursuant hereto shall be construed without regard to the identity of the person who drafted· the various provisions of the same. Each and every provision of this Agreement and such other documents and instruments shall be construed as though the Parties participated equally in the drafting of the same. Consequently, the Parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting Party shall not be applicable either to this Agreement or such other documents and instruments. Capitalized terms not defined herein shall have the meanings assigned in the Asset Sale Agreement. 1.1.1 "AAA" is defined in Section 12.1. 1.1.2 "Affiliate" means, with respect to a specified Person, any cotp0ration, partnership, sole proprietorship or other Person which directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with the Person specified. The term "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person; provided however, that a contract between a Person and any fuel supplier or power purchaser related solely to the provision of fuel or power does not, by itself; constitute "control" for purposes of this definition. 1.1.3 "Agreement'' means this Easement Agreement. 1.1.4 "Asset Sale Agreement'' means that certain Asset Sale Agreement dated as of December 11, 1998 between SDG&E and Plant Owner relating to the Plant. 1.1.S "Claim Notice" is defined in Section 8.3. 1.1.6 "Environmental Law'' means any applicable federal, state, regional, or local statutes, regulations ordinances, codes, permits, orders; or controlling common law relating to: (i) air emissions, Hazardous Materials, storage, use and release to the environment of hazardous or toxic substances, generation, treatment, storage, and disposal of hazardous wastes, wastewater discharges and similar environmental matters; or (ii) the impact of the matters described in the preceding clause upon human health or the environment, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et ~. the Hazardous Materials Transportation Act (49 U.S.C. § 5101 et seq.). the Resource Conservation and Recovery ,'\ct (42 U.S.C. § 6901 et seq.). the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.). the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the-Oil Pollution Act (33 U.S.C. § 2701 ~ w. the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.). the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 1 JOO! et seq.). the Porter-Cologne Water Quality Control Act (Cal. Wat. Code§ 13000 ~. the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.). the Hazardous 2 SD\372805.2 & Substance Account Act (Cal. Health & Safety Code § 25300 et seq.}. the Hazardous Waste Control Act (Cal. Health & Safety Code§ 25100 et seq.). and the California Clean Air Act (Cal. Health & Safety Code § 39000 ~- 1.1.7 "Facilities Services Agreement'' means that certain Facilities Services Agreement dated as of December 11, 1998 between SDG&E and Plant Owner respecting the Property, as amended from time to time . . 1.1.8 "Force Majeure Event'' means any occurrence beyond the reasonable control of and without the fault or negligence of a Party claiming such Force Majeure Event, which causes such Party to be unable to perform its obligations under this Agreement, which by exercise of due foresight such Party could not reasonably have been expected to avoid and which such Party is unable to overcome by the exercise of due diligence, including an act of God, requirement to comply with any Requirement of Law, war, civil disturbance, riot, strike or other labor dispute, material shortage, fire, explosion, flood, earthquake, storm, lightning and other natural catastrophes, breakdown of equipment caused by a Force Majeure Event, failure of a contractor or subcontractor caused by a Force Majeure Event, or transportation delays or stoppages, provided that in any event a Force Majeure Event shall not include lack of finances. 1.1.9 · "Governmental Body'' means any federal, state, regional, local, or other government; any governmental, regulatory or administrative agency, commission, body or other authority having jurisdiction to exercise any administrative, executive,judicial, legislative, police, regu)atory or taxing authority or power affecting the Plant or Grid; and any court or governmental tribunal; but does not include either Party or its respective Affiliates or any owner or operator of the Plant (if otherwise a Governmental Body). 1.1.10 "Grid" means the interconnected power system operated by SDG&E or the ISO. 1.1.11 "Hazardous Materials" means any chemicals, materials, substances, or items in any form, whether solid; liquid, gaseous, semisolid, or any combination thereof, whether waste materials, raw materials, chemicals, finished products, by-products, or any other materials or articles, which because of their physical, chemical, or other characteristics may pose a risk of endangering human health or safety or of degrading the environment and are regulated under any Environmental Law. 1.1.12 "Improvement" means all structures, improvements, facilities, systems, fixtures and equipment of any kind now or hereafter located on the Property, whether above or below the land surface, whether real or personal property, and whether permanent or temporary, including without limitation, all buildings, sheds, energy plants, tanks, pipelines (including meters, connections, valves and other associated equipment), cables, wires, conduits, cable trays,· trenches, mains, lines, ducts, fences, towers, antennae, tunnels, driveways, streets, alleys, paved parking areas, pathways, screening walls, awnings, retaining walls, plantings, shrubs and other landscaping, irrigation and drainage pipes and facilities, lighting fixtures and signs. 1.1.13 "Indemnitee" means a Plant Owner Indemnitee or SDG&E lndemnitee, as the context may require, who benefits from any indemnification provision herein. 3 SD\l7280S.2 ~) 1.1.14 "lndemnitor" means either Plant Owner or SDG&E in compliance with the indemnification provisions hereof. · 1.1.15 "Initial Plant Land" is defined in Recital A. 1.1.16 "ISO" means the Independent System Operator described in Article 3 of Chapter 2.3 of Part 1 of Division l of the California Public Utilities Code. 1.1.17 "Land" means, collectively, the Plant Land and the SDG&E Land. 1.1.18 "Laws" means all court decisions, case law, statutes, rules, regulations, ordinances, orders, decrees and codes of a Governmental Body. 1.1.19 "Licenses" means registrations, licenses, permits, authorizations and other consents or approvals or entitlements issued by any Governmental Bodies. 1.1.20 "Losses" means, subject to Section 9, claims, demands, suits, loss, liability, damage and expense, including reasonable attorneys' fees and costs .of investigation, litigation, settlement and judgment, as well as the Indemnitee's obligations itself to provide indemnity for such claims, demands, suits, loss, liability, damage and expense to its directors, officers, attorneys, employees, subcontractors, agents and assigns. 1.1.21 "Mortgage" means a deed of trust, mortgage or other consensual encumbrance recorded against the Property or any portion thereof. 1.1.22 "Mortgagee" means a beneficiary under, or holder of, a Mortgage. 1.1.23 "Option Agreement" is defined in Recital B. 1.1.24 ''Party" or "Parties" means, individually or collectively, as the case may be, SDG&E, its successors and assigns, or/and Plant Owner, its successors and assigns. 1.1.25 "Permit" means any action, approval, consent, waiver, exemption, variance, franchise, order, permit, authorization, right, license or other similar action of or from a Governmental Body. 1.1.26 "Permittees" means, with respect to a particular Party, all Persons entitled to occupy or use all or any portion of the Property of such Party by virtue of a lease, easement, license or other legal relationship with such Party; provided, however, that neither Party shall be included in the definition of a "Permittee" of the other Party under this Agreement. 1.1.27 "Person" means any individual, sole proprietorship, corporation, limited liability company, partnership, trust or trustee thereof; estate or executor thereof; unincorporated organization or joint venture, court or governmental unit or any agency or subdivision thereof, or any other legally recognizable entity. 1.1.28 "Plant'' means the electric energy generation plant located on the Plant Land. 4 SD\372805.2 1.1.29 "Plant Improvements" means all Improvements owned by Plant Owner, regardless of whether such Improvements are located on the Plant Land or on the SDG&E Land. 1.1.30 "Plant Land" means the portion of the Initial Plant Land owned by Plant Owner after exercise of the option by SDG&E under the Option Agreement and the closing thereunder. 1.1.31 "Plant Owner Claims" is defined in Section 8.1. 1.1.32 "Plant Owner Indemnitees" means Plant Owner, its Affiliates, and their respective permitted successors, assigns, shareholders, directors, officers, employees, contractors, and agents. 1.1.33 "Plant Property" means, collectively, (i) the Plant Land, and (ii) the Plant Improvements. 1.1.34 "Property'' means, collectively, the Plant Property and the SDG&E Property. 1.1.35 "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing ariy·hazardous substance or pollutant or contaminant), but excludes (a) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (b) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, and (c) the normal application of fertilizer, fungicides, or other agricultural products. Release also includes the migration of Hazardous Materials into, under, on, through, or in the air, soil, subsurface strata, surface water, groundwater, drinking water supply, any sediments associated with any water bodies, or any other environmental medium, regardless of where such migration originates. 1.1.36 "Requirement of Law" means any law, treaty, rule or regulation, or determination of an arbitrator, court or other Governmental Body, or any franchise, license, lease, Permit, certificate, authorization, qualification, easement, right-ofcway, right or approval binding on a Party or any of its property. 1.1.37 "Rules" is defined in Section 12.1. 1.1.38 "SDG&E Claims" is defined in Section 8.1. 1.1.39 "SDG&E Improvements" means all Improvements owned by SDG&E, regardless of whether such Improvements are located on the SDG&E .Land or on the Plant Land. 1.1.40 "SDG&E Indemnitees" means SDG&E, its Affiliates, and their respective permitted successors, assigns, shareholders, directors, officers, employees and agents. 5 swnsos.2 ,· ~ w 1.1.41 "SDG&E Land" means the land purchased by SDG&E pursuant to the Option Agreement. 1.1.42 "SDG&E Operations Equipment" means that portion of the SDG&E Improvements which constitutes equipment, facilities, cabling and other personal properly located in or on the Plant Property, and used by SDG&E for any of the purposes of(i) the operation of an electrical substation, (ii) the operation of the Grid, (iii) the control of continuity • between the Grid and the electric energy generation plant located on the Plant Land, (iv) the transmission of voltage, control and other data and information used in SDG&E's electrical transmission and distribution systems, (v) the operation ofSDG&E's facilities located on the SDG&E Land, (vi) the provision of communication and computing services for the electrical substation and other facilities owned and or operated by SDG&E or its designees, or (vii) the provision of telecommunications services. The SDG&E Operations Equipment shall also include all future upgrades, modifications, alterations or replacements to or of such equipment, facilities, cabling and other personal property. 1.1.43 "SDG&E Property'' means, collectively, (i) the SDG&E Land, and (ii) the SDG&E Improvements. 1.1.44 "Third Party Claim" means any demand, assertion, claim, action or proceeding, judicial, governmental or otherwise, by any third party. 2. GRANT OF EASEMENTS TO PLANT OWNER SDG&E grants to Plant Owner, the following easements: . 2.1 Easement For Water Lines And Fire Safety Tanks. A non-exclusive easement . and right of way to install, maintain, repair and replace water tanks anti water lines for fire safety purposes and incidentals thereto, in, upon, under and along the lands depicted on Exhibit A and legally described on Exhibit 2.1. 2.2 Drainage. A non-exclusive easement for surface water drainage purposes, in, upon, under and· along the lands depicted on Exhibit A and legally described on Exhibit 2.2, Subject to the provisions of Section 5.2 _below, such drainage shall occur on, over and through such pipes, drains, gulleys, culverts, ditches, ponds and other facilities as exist on the SDG&E Property as of the date of this Agreement. Neither Party shall take any action (including, without limitation, the construction, demolition or alteration of any Improvements or the alteration of the surface of the SDG&E Land, which shall alter or modify the drainage existing as of the date of this Agreement from, to or over the SDG&E Property so as to have an -adverse effect on the SDG&E Property or the enjoyment by Plant Owner of the easements granted in this Agreement. '· 2.3 Access. A non-exclusive easement in, on, over, under, across and through the SDG&E Land for the benefit of the Plant Land. for the purpose of vehicular and pedestrian access (i) to and from the Plant Land from and to public streets, (ii) to facilitate the use and enjoyment of the other easements granted herein over the SDG&E Land, and (iii) for the performance of Plant Owner's duties, obligations and responsibilities under this Agreement, the 6 SD\372805.2 Facilities Services Agreement and the Asset Sale Agreement. Except as otherwise mutually agreed upon by the Parties, the foregoing access rights shall be exercised through and over such roads, streets, alleys, bridges, tunnels, pathways, sidewalks, stairways, elevators, hallways and other vehicular and pedestrian access ways as are customarily used as of the date of this Agreement for such purposes, subject to future relocation in accordance with the provisions of Article 5, provided however, that this Section 2.3 shall not be construed to create new access rights in, on, over, under, across and through the SDG&E Land which are inconsistent with or expand the custom and practice observed for efficient use ofthe_Impiovements while the Plant Land and the SDG&E Land were under common ownership. 2.4 Support. A non-exclusive easement for vertical, lateral and structural load- bearing support for Plant Improvements existing on the SDG&E Property as of the date of this Agreement and any upgrade, reconstruction, alteration, replacement or restoration of such Plant Improvements that does not place a materially greater burden on the SDG&E Property than that which exists as of the date of this Agreement. The foregoing easement shall include an easement for support for and from the columns, beams, joists, girders, walls, footings, foundations and other elements of the associated· improvements, and accommodation of the natural settlement of structures; provided, however, that no such easement shall permit any substantial interference with the use and enjoyment of the SDG&E Property. 2.S Encroachments. A non-exclusive easement for any encroachments which exist as of the date of this Agreement, or future minor encroachments resulting from vertical or lateral displacement, movement or settling of the Plant Improvements; provided, however, no encroachment which was not in existence as of the date of this Agreement shall be permitted which unreasonably interferes with the use and enjoyment of the SDG&E Property. 2.6 Easement for Use of Other Plant Improvements. A non-exclusive_ easement in, on, over, under, across and through the areas of the SDG&E Land described in this Section 2.6 for the purpose of the use, operation, inspection, maintenance, repair, installation, upgrade, alteration, restoration and replacement of Plant Owner Improvements presently located on the SDG&E Land, but as to which an easement is not otherwise expressly granted to Plant Owner under this Agreement. The easement described in this Section 2.6 shall encumber and burden those portions of the SDG&E Land upon which such.Plant Owner Improvements are presently located. Except for such Plant Owner Improvements presently existing on the SDG&E Land, and subject to Article 5 hereof, and for alterations, upgrades, restorations or replacements thereof which do not place an increased burden on the SDG&E Land, no additional Improvements shall · be installed on the SDG&E Land by or on behalf of Plant Owner pursuant to this Section 2.6. 2.7 INTENTIONALLY OMITTED. 3. USE OF PROPERTY AND EASEMENTS 3.1 In General. Toe Property may be used for any lawful purpose, and the easements granted herein may be utilized in any lawful manner for the pmposes for which such easements are granted herein, provided that all use of the Property and the easements granted herein shall be subject to the following: (i) no portion of the Property shall be used in a manner which 7 SD\3728052 . i- ----~----------------------------- unreasonably interferes with the use of the easements granted in this Agreement; (ii) no use of the easements granted herein shall be made which unreasonably interferes ,with the use of the remaining portions of the Property; (iii) no use of the Property or any of the easements granted herein shall be made in a manner or for a purpose which causes any Party to be in violation of, or in noncompliance with, any Requirement of Law; and (iv) no use of the Property or any of the easements granted herein shall be made which constitutes or produces a nuisance or disturbance to other portions of the Property other than such noises, vibrations, odors, dust, emissions and electro-magnetic interferences or di_sturbances and the. like which are lawfully and customarily incidental to the operation of a fossil-fueled electrical energy generation plant, the transmission of electrical energy, the storage and distribution of fuel, or the other uses currently existing on the Property as of the date of this Agreement. Notwithstanding the foregoing, but subject to compliance with applicable Requirements of Law, the Parties expressly consent to the uses and manner of operation of the Property in existence as of the date of this Agreement, including the portion of such current uses and manner of operation which will hereafter be conducted pursuant to the easements granted herein. If any use of the Property shall result in any damage to any Improvements used in connection with an easement granted herein, or if any use of an easement granted herein shall result in any damage to Improvements located on the servient tenement, then the Party causing such damage shall, at its own expense, promptly restore the damaged Improvements to their condition existing prior to the date of such damage. 3.2 Cooperation. Pursuant tq Section 2.6, Plant Owner has an easement over the SDG&E Land for the purpose of the use, operation, inspection, maintenance, repair, installation, upgrade, alteration, restoration and replacement of the Plant Improvements. SDG&E acknowledges that the Plant Improvements are, in many cases, located in areas of the SDG&E Land in which fixtures, equipment and other property of SDG&E used in connection with the operation of SDG&E Operations Equipment and other SDG&E Improvements are located. Each Party agrees to cooperate with the other Party so as not to interfere with or obstruct the use by such other Party of such other Party's fixtures, equipment and other property. Such duty of cooperation shall include the obligation of the Parties to mutually agree upon reasonable rules and procedi,u-es for the use by the Parties of those areas of the Plant Property in which the Parties' shared use is required as a result of the easement granted in Section 2.6. 3.3 Change in Ground Surface Elevations. Subject to the provisions of Section 5.2, Plant Owner shaH not increase or decrease the ground surface elevations nor allow the ground surface elevation to be increased or decreased in any manner within the eas~ents herein granted, nor shall the ground within the easements herein.granted be penetrated in any manner to a depth in excess of eighteen (18) inches without the prior written consetlt-ofthe SDG&E,which consent shall not be unreasonably withheld, conditioned or delayed. The foregoing limitation shall not prevent the removal or relocation of earthen berms. 3.4 Landscape Maintenance. SDG&E shall have the right to trim, cut and remove trees, brush, foliage, roots and other vegetation from within the easements granted herein whenever in SDG&E's judgment the same shall be necessary for the convenient and safe exercise of the rights herein granted, and shall have the obligation to trim, cut and remove such trees, brush, foliage, roots and other vegetation at its own expense as required by orders of the California Public Utilities Commission. This right shall not relieve Plant Owner of any duty to trim, cut and remove trees and brush to prevent danger or hazard to property or persons. 8 SD\3728051 .. ············-------------------- 4. MAINTENANCE AND REPAIR Any and all Improvements which are used in common by both Parties in connection with an easement· granted hereunder including Improvements providing vertical, lateral or structural load-bearing support, shall be maintained and repaired in a good condition and in compliance with all Requirements of Law by the owner of such Improvements, at such owner's sole cost and.expense. Any and all Improvements used solely by Plant Owner shall be maintained and repairro in-a good condition and in compliance with all Requirements of Law by Plant Owner, at Plant Owner's sole cost and expense. Notwithstanding any contrary provision hereof; as long as the Facilities Services Agreement remains in effect, this Section 5 shall be subject to the terms and provisions of the Facilities Services Agreement, and in the event of any inconsistency or conflict between the terms and provisions of this Section 5 and the terms and provisions of the Facilities Services Agreement, the terms and provisions of the Facilities Services Agreement shall control. 5. NEW IMPROVEMENTS OR ALTERATIONS; RELOCATION OF EASEMENTS 5.1 New Improvements or Alterations. Subject to the provisions of Section 6 befow, and subject to the Parties' obligations under the Facilities Services Agreement, each Party shall have the right to alter, modify, demolish or replace the Improvements owned by such Party and located on such Party's land and/or to construct new Improvements on such Party's land, provided that (i) with respect to Improvements owned by SDG&E which are not used by Plant Owner, such Improvements, as they exist after such alteration, modification, demolition, replacement or construction, shall not unreasonably interfere with the use and enjoyment of the easements granted herein; and (ii) with respect to Improvements owned by SDG&E which are used in common by both SDG&E and Plant Owner, such alteration, modification, demolition, replacement or new construction shall not unreasonably interfere with the use and enjoyment of the easements herein granted, except in the case of (i) and (ii) for temporary interference occasioned by construction work performed in compliance with the provisions of Section 6 below. 5.2 Relocation of Easements. At the request of either Party, the areas of the PropertY which are burdened by the easements granted herein shall be subject to relocation upon the consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed (material interference with the operation of the applicable Property shall constitute reasonable grounds for withholding consent), The Party requesting the relocation shall be responsible for all reasonable out-of-pocket costs and expenses incurred by the other Party or its customers in connection with the requested relocation, including without limitation cost of!and or easement acquisition, design costs, hard and soft construction costs, labor costs, customer charges, all relocation, alteration, modification, demolition and other construction work required with respect to affected Improvements, all site restoration work and damage resulting therefrom, and all charges relating to the relocation or reconfiguration of customer premises equipment or facilities. In addition, the relocation requested by a Party shall not disrupt or impair the other Party's operations or increase the other Party's costs of operation in any material respect, except 9 SD\37280,.i ............ ,,,,. __ , ... ' for temporary interference occasioned by construction work performed in compliance with the provisions of Section 6 below. 6. REGULATIONS REGARDING MAINTENANCE AND CONSTRUCTION WORK All construction, demolition and/or maintenance work or activities on the Property (i) performed by or on behalf of Plant Owner in connection with an easement granted hereunder, or (ii) performed by or on behalf ofSDG&E in an instance in which such construction activities affect an easement granted hereunder, shall be performed in accordance with the following requirements: · 6.1 No Unreasonable Interference. No such work or activity shall unreasonably interfere with the use, occupancy or enjoyment of the SDG&E Property, or with the use or _enjoyment of an easement granted hereunder or with thp Parties' respective rights and obligations under the Facilities Services Agreement, except in each case for temporary minor inconveniences, the scope and duration of which are minimized to the extent reasonably possible. 6.2 Compliance with Requirements of Law. No such work or activity shall cause the other Party to be in violation of any Requirement of Law. 6.3 Repair of Defects. Subject to the Facilities Services Agreement, all work performed by or on behalf of Plant Owner shall be performed in a manner that will not damage the SDG&E Property, other than minor damage which· shall be promptly and diligently repaired by Plant Owner. Subject to the Facilities Services Agreement, Plant Owner shall promptly remedy any defects in work performed by or on behalf of Plant Owner which have a material adverse effect on the SDG&E Property, or its use or operations, or subject SDG&E to material risk ofliability. 6.4 Safety Measures. Each Party responsible for any work or activity shall take all safety measures reasonably necessary to protect the other Party, its Permittees and the property of each, from injury or damage caused by or resulting from the performance of such work or activity. 6.5 Notice of Work. Except for normal and periodic maintenance work performed in - the ordinary course, no construction, alteration, installation, upgrade or restoration work shall be performed on the SDG&E Property without Plant Owner first providing SDG&E with reasonable prior written notice of such work. 7. INSURANCE 7.1 General Liability Insurance. Each Party shall maintain a commercial general liability policy or policies, including coverage for sudden and accidental pollution liability, insuring against liability arising from bodily injury, property damage, personal and advertising injury, independent contractors liability, products and completed operations; and contractual 10 SD\372805.2 . ,, , .. , ,.., .. ~ ...... ~ ... , .... ' -·,· -~,~-.,., .. --T-·•··-····---·-·---,-.. ' "~' I liability. Such coverage shall be in an amount of not less than $10,000,000 combined single limit per occurrence. 7.2 Workers' Compensation Insurance. In accordance with the laws of the State of California, each Party shall maintain in force workers compensation insurance for all of its employees. Each Party shall also niaintain employer's liability coverage in an amount of not less than $1,000,000 per accident and per employee for disease. In lieu of such insurance, each Party may maintain a self-insurance program meeting the requirements of the State of California along with the required employer's liability insurance. 7.3 Automobile Liability Insurance. Each Party shall maintain an automobile liability policy insuring against liability for damages because of bodily injury, death or damage to property (including loss of use thereof) and occmring in any way related to the use, loading or unloading of each Parties' automobiles (including owned, non-owned, leased and rented vehicles). Coverage shall be in an amount of not less than $1,000,000 each accident. In lieu of such insurance, parties may maintain a self-insured program meeting the requirements in the State of California. 7 .4 Additional Insured. Each Party shall be named as an additional insured in each general liability policy. Such general liability insurance shall provide a severability of interest or cross-liability clause. 7.S Property Insurance. Plant Owner shall maintain All-Risk Property Insurance and Boiler and Machinery Insurance for physical loss or damage to the Plant in amounts customary in the electric utility generating industry. Such insurance shall waive subrogation against SDG&E. SDG&E shall niaintain easualty insurance for physical loss or damage to the SOG&E Improvements, or shall self-insure against such loss or damage. Such insurance (or SDG&E, in the case of self-insurance) shall waive subrogation against Plant Owner. 8. INDEMNIFICATION , 8.1 Mutual Indemnification. SDG&E shall indemnify, defend and hold harmless each Plant Owner Indemnitee from and against all Losses which arise out of or relate to any Third Party Claim against any Plant Owner Indemnitee atising out ofSDG&E's breach of this Agreement (collectively, "Plant Owner Claims"); and Plant Owner shall indemnify, defend and hold harmless each SDG&E Indemnitee from and against all Losses which arise out of or relate to any Third Party Claim against any SDG&E Indemnitee arising out of Plant Owner's breach of this Agreement ( collectively, "SDG&E Claims"). 8,2 Mutual Environmental lndemoification. SDG&E shall indemnify, defend and hold harmless each Plant Owner Indemnitee from'and against all Losses which arise out of or relate to (i) any Third Party Claim against any Plant Owner Indemnitee arising out of or relating to a Release caused by any SDG&E Indemnitee of Hazardous Materials in, on, over or about the soil, groundwater or surface water on SDG&E Land, or into the air from SDG&E Land, after the date of this Agreement or (ii) any claim by Plant Owner against SDG&E arising out of or relating to a Release caused by any SDG&E Indemnitee of Hazardous Materials in, on, over or 11 SD\3728052 about the soil, groundwater or surface water on SDG&E Land, or into the air from SDG&E Land, after the date ofthis Agreement; and Plant Owner shall indemnify, defend and b.old hannless each SDG&E Indemnitee from and against all Losses which arise out of or relate to any Third Party Claim against any SDG&E Indemnitee arising out of or relating to a Release by any Plant Owner Indemnitee of Hazardous Materials in, on, over or about the soil, groundwater or surface water on SDG&E Land, or into the air from SDG&E Land, after the date of this Agreement. With respect to Third Party Claims relating to events which occurred or circumstances which existed prior to the date of this Agreement the terms and conditions of the Asset Sale Agreement shall govern to the extent set forth-therein. 8.3 Procedures Respecting Third Party Claims. In providing notice to the Indemnitor of any Third Party Claim (the "Claim Notice"), the Indemnitee shall provide the Indemnitor with a copy of such Third Party Claim or other documents received and shall otherwise make available to the Indemnitor all relevant information material to the defense of such claim and within the Indemnitee's possession. The Indemnitor shall have the right, by notice given to the Indemnitee within 15 days after the date of the Claim Notice, to assume and control the defense of the Third Party Claim that is the subject of such Claim Notice, including the employment of counsel selected by the Indemnitor after consultation with the Indemnitee, and the Indemnitor siia1l pay all expenses of, and the Indemnitee shall cooperate fully with the Indemnitor in connection with, the conduct of such defense. The Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such Third Party Claim, but .the fees and expenses of such counsel shall be borne by the Indemnitec unless the Indemnitor shall agree otherwise; provided, however, if the named parties to any such proceeding (including any impleaded parties) include both the Indemnitee and the Indemnitor, the Indemnitor requires that the same counsel represent both the Indemnitee and the Indemnitor, and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Indemnitee shall have the right to retain its own counsel at the cost and expense of the Indemnitor. If the Indemnitor shall have failed to assume the defense of any Third Party Claim in accordance with the provisions of this section, then the Indemnitee shall have the absolute right to control the defense of such Third Party Claim, and, if and when it is finally determined that the Indemnitee is entitled to indemnification from the Indemnitor hereunder, the fees and expenses of Indemnitee's counsel shall be borne by the Indemnitor, provided that the Indemnitor shall be entitled, at its expense, to participate in (but not control) such defense. The Indemnitor shall have the right to settle or compromise any such Third Party Claim for which it is providing indemnity so long as such settlement does not impose any obligations on the Indemnitee ( except with respect to providing releases of the third party). The Indemnitor shall not be liable for any settlement effected by the Indemnitee without the Indemnitor' s consent except where the Indemnitee has assumed the defense because Indemnitor has failed or refused to do so. The Indemnitor may assume and control, or bear the costs, of any such defense subject to its reservation of a right to contest the Indemnitee's right to indemnification hereunder, provided that it gives the Indemnitee notice of such reservation within 15 days of the date of the Claim Notice. 12 SD\372805.2 0 8.4 General Indemnification Provisions. 8.4.1 The Indemnitee shall promptly upon its discovery of facts or circum- stances giving rise to a claim for indemnification, including receipt by it of any Third Party Claim, give notice thereof to the Indemnitor, such notice in any event to be given within 60 days from the date the Indemnitee obtains actual knowledge of the basis or alleged basis for the right of indemnity or such shorter period as may be necessary to avoid material prejudice to the Indemnitor. 8.4.2 In computing Losses, such amounts shall be computed net of any related recoveries to which the Indemnitee is entitled under insurance policies, or other related payments received or receivable from third parties, and net of any tax benefits actually received by the Indemnitee or for which it is eligible, taking into account the income tax treatment of the receipt of indemnification. 8.4.3 Toe provisions of this Section 8.4 shall not be construed to relieve any insurer of its obligations to pay any insurance claims in accordance with the provisions of any valid insurance policy. 8.4.4 The provisions of this Section 8.4 shall survive the expiration or early termination of this Agreement, provided that neither Party shall have liability under this Agreement in connection with any claim or demand arising out of this Agreement, whether pursuant to Section 8.4.1 or otherwise, following the first anniversary of the earlier of the Expiration Date and the termination of this Agreement unless, prior to such date, such Party has been notified of such claim or demand. 8.4.S The provisions of this Agreement shall not affect liability of either Party to the ISO or any other third party. 8.4.6 Nothing in this Agreement is meant to charige the respective Parties' indemnification rights and obligations pursuant to the Asset Sale Agreement. 9. CONSEQUENTIAL DAMAGES; DISCLAIMER Notwithstanding the provisions of Section 11, neither Party shall be liable to the other Party or to any other Person for any punitive, incidental, indirect, special or consequential loss or damage, including loss of revenues, income or profits, cost of capital, loss of goodwill or reputation or increased operating costs. The Parties filrther agree that the waivers and disclaimers of liability, indemnities, releases from liability and limitations on liability expressed in this Agreement shall apply at all times, whether in contract, equity, tort or otherwise, regardless of the fault, negligence (in whole or in part), strict liability, breach of contract or breach of warranty of the Party indemnified, released or whose liabilities are limited, and shall extend to the Plant Owner lndemnitees .and SDG&E Jndemnitees. 10. DESTRUCTION OF IMPROVEMENTS 13 SD\372805.2 '--' ' , 0 In the event any Improvements over which Plant Owner has an easement granted herein (as opposed to any Improvements constructed and owned by Plant Owner in'. Plant Owner's easement area) or Improvements which provide ·support for Improvements owned by the other Party, shall be damaged or destroyed by any casualty, it shall be the duty of the owner of such Improvements, at such owner's sole cost and expense, to restore and repair such Improvements ( or make alternative arrangements that provide Plant Owner with reasonably equivalent benefits it enjoyed from the easement in question prior to the casualty) in as fast and efficient a means as commercially practicable. No such damage or destruction of the servient tenement shall result in the termination of.an easement granted herein. 11. DEFAULTS/ENFORCEMENT 11.1 Defaults. Any Party which commits a breach of any covenant, restriction, term or provision of this Agreement shall be considered to be in default under· this Agreement if such Party shall fail to cure such breach within thirty (30) days following receipt of written notice from an aggrieved Party specifying such breach; provided, that if the nature of the particular breach reasonably requires more than thirty (30) days to cure, then such Party shall not be considered to be in default of this Agreement if such Party commences the cure of the breach within the foregoing thirty (30) day period and thereafter diligently prosecutes such cure to completion. 11.2 General Remedies. Subject to the provisions of Article 12 below, in the event of any default of this Agreement as provided in Section 11.1 above, any aggrieved Party shall have the right to prosecute a proceeding at law or in equity against the defaulting Party for damages, injunctive relief or other remedies at law or in equity. 11.3 Failure To Enforce Not A Waiver Of Rights. The failure of any aggrieved Party to enforce any covenant, condition, restriction or provision herein contained shall in no event be deemed to be a waiver of the right thereafter to do so, nor of the right to enforce any other covenant, condition, restriction or provision set forth in this Agreement. A Party shall be considered to have waived any rights hereunder only if such waiver shall be in writing. 11.4 Term; Termination. This Agreement will be effective upon execution by the · Parties. Notwithstanding anything contained or implied in this Agre.ement to the contrary, in no event shall the remedies available hereunder for a breach of the provisions hereof include termination of this Agreement. Each Party waives any right under law, equity or otherwise, to terminate this Agreement. 11.5 Force Majenre. If either Party is unable to perform its obligations under this Agreement due to a Force Majeure Event, the non-performing Party shall promptly notify the other Party of the occurrence of the Force Majeure Event. . The non-performing Party shall be relieved from its obligations W1der this Agreement, except for the obligations to pay money, when and to the extent the non-performing Party's inability to perform its obligations is caused by the Force Majeure Event, provided that the relief from performance is of no greater scope and of no longer duration than is required by the Force Majeure Event. The non-performing Party shall use reasonable efforts to remedy its inability to perform and to mitigate the consequences of 14 SD\372805.2 .,. . .,_ b the Force Majeure Event, provided that no Party shall be required to settle any strike or other labor dispute on terms which, in the Party's reasonable judgment, are contrary to its interest. The non-performing Party shall advise the other Party of its effort to remedy its inability to perform and to mitigate the consequences of the Force Majeure Event, and shall advise the other Party of when it will be able to reswne performance of its obligations under this Agreement. 12. ARBITRATION 12.1 Agreement to Arbitrate. Any controversy or claim arising out of or relating to this Agreement, or the breach or alleged breach hereof; shall upon demand of either Party be submitted to arbitration in the maliner hereinafter provided. The Parties shall make every reasonable effort to resolve any such controversy or claim without resort to arbitration. In the event the Parties are unable to effect a satisfactory resolution, such controversy shall be submitted to arbitration in accordance with the terms and provisions of this Article 12 and in accordance with the then current Commercial Arbitration Rules (the "Rules") of the American .o.rbitration Association ( or any successor organization) (the "AAA'.'), Any such arbitration shall take place in San Diego, Califomia and shall be administered by the AAA. In the event of any conflict between the terms and provisions of this Article 12 and the Rules, the terms and provisions of this Article 12 shall prevail. 12.2 Submission to Arbitration. A Party desiring to submit to arbitration any such controversy shall send a written arbitration demand to the AAA and to the opposing Party. • The demand shall set forth a clear and complete statement of the nature of the claim, its basis, and the remedy sought, including the amount of damages, if any. The opposing Party may, within thirty days of receiving the arbitration demand, assert a counterclaim and/or set-off. The counterclaim or set-off, which shall be sent to the AAA and the opposing Party, shall include a clear and complete statement of the nature of the counterclaim or set-off, its basis, and the remedy sought, including the amount of damages, if any. · 12.3· Selection of Arbitration Panel. The dispute shall be decided by a panel of three neutral arbitrators selected as follows: The MA shall submit to the parties, within 10 days after, receipt of any arbitration demand, a list of 11 potential arbitrators consisting of retired federal or state court judges; provided that none of the potential arbitrators shall have ( or have ever had) any material affiliation of any kind with either Party or any Affiliate of either Party. Each Party shall, within five days, strike four, three, two, one or none of the arbitrators, rank the remaining arbitrators in order of preference (with "l" designating the most preferred, ''2" the next most preferred and so forth) and so advise the AAA in writing. The AAA shall appoint the arbitrators with the best combined preference ranking on both lists and designate the most preferred arbitrator as presiding officer (in each case, selecting by lot, if necessary, in the event of a tie). 12.4 Prehearing Discovery. There shall be no prehearing discovery except as set forth in this Section 12.4. Subject to the authority of the presiding officer of the arbitration panel to modify the provisions of this Section 12.4 before the arbitration hearing upon a showing of exceptional circumstances, each Party (a) shall propound to the other no more than 20 requests for production of docwnents, including subparts, and (b) shall take no more than two discovery depositions. Such discovery shall be conducted in accordance with the provisions and 15 SD\372805.2 'I.,_., 0 procedures of the Federal Rules of Civil Procedure. No interrogatories or requests for admission shall be permitted. Disputes concerning discovery obligations or protection of discovery materials shall be detennined by the presiding officer of the arbitration panel. The foregoing limitations shall not be deemed to limit a Party's right to subpoena witnesses or the production of documents at the arbitration hearing, nor to limit a Party's right to depose witnesses that are not subject to subpoena to testify in person at the arbitration hearing; provided, however, that the presiding officer of the arbitration panel may, upon motion, place reasonable limits upon the number and length of such testimonial depositions. 12.5 Arbitration Hearing. The presiding officer of the arbitration panel shall designate the place and time of the hearing. The hearing shall be scheduled to begin within 90 days after the filing of the arbitration demand (unless extended by the arbitration panel on a showing of exceptional circumstances) and shall be conducted as expeditiously as possible. In all events, the issues being arbitrated, which shall be limited to those issues identified in the initial claim and counterclaim submitted to the arbitration panel pursuant to Section 12.2, shall be submitted for decision within 30 days after the beginning of the arbitration hearing. At least 30 days prior to the beginning of the arbitration hearing, each Party shall provide the other Party and the IU"bitration panel with written notice of the identity of each witness ( other than rebuttal witnesses) it intends to call to testify at the hearing, together with a detailed written outline of the substance of the anticipated testimony of each such witness. The arbitration panel shall not permit any witness to testify that was not so identified prior to the hearing and shall limit the testimony of each such witness to the matters disclosed in such outline. Subject to the foregoing, the Parties shall have the right to attend the hearing, to be represented by counsel, to present documentary evidence and witnesses, to cross-examine opposing witnesses and to subpoena witnesses. The Federal Rules of Evidence shall apply and the panel shall determine the competency, relevance, and materiality of evidence as appropriate. The panel shall recognize privileges available under applicable Law. A stenographic record shall be made of the arbitration proceedings. 12.6 Award. The panel's award shall be made by majority vote oftlie panel. An award in writing signed by at least two of the panel's arbitrators shall set forth the panel's findings of fact and conclusions oflaw. The award shall be filed with the AAA and mailed to the Parties no later than 30 days after the last day of testimony at the arbitration hearing. The panel shall have authority to issue any lawful relief that is just· and equitable, except punitive damages or other damages excluded from the indemnities contained in Section 8. The award shall state that it dissolves and supersedes any provisional remedies entered pursuant to Section 12.7. 12. 7 Provisional Remedies. Pending the selection of the arbitration panel, upon request of a Party, the AAA may appoint a retired judge to serve as a provisional arbitrator to rule on any motion for preliminary relief. Any preliminary relief ordered by the provisional arbitrator may be immediately entered in any federal or state court having jurisdiction thereof even though the decision on the underlying dispute may still be pending. Once constituted, the arbitration panel may, upon request of a Party, issue a superseding order to modify or reverse such preliminary relief or may itself order preliminary relief pending a full hearing on the merits of the underlying dispute. Any such initial or superseding order of preliminary relief may be immediately entered in any federal or state court having jurisdiction thereof even though the 16 SD\372805.2 ' ,-, .... ,. ,. , .... --··-·-------,--... .J decision on the underlying dispute may still be pending. Such relief may be granted by the appointed arbitrator or the arbitration panel only after notice to and opportunity to be heard by the opposing Party. Such awards of preliminary.relief shall be in writing and, if ordered by a panel of three arbitrators, must be signed by at least two of the panel members. 12.8 Entry of Award by Court. Toe arbitration panel's arbitration award shall be final. Toe Parties agree and consent that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof. 12.9 Costs and Attorney's Fees. Toe prevailing party shall be entitled to recover its costs and reasonable attorneys' fees, and the Party losing the arbitration shall pay all expenses and fees of the AAA, all costs of the stenographic record, all expenses of witnesses or proofs that may have been produced at the direction of the arbitrators, and the fees, costs, and expenses of the arbitrators. The arbitration panel shall designate the prevailing Party for these purposes. 13. RUN WITH LAND . Each and all of the easements, covenants, conditions and restrictions set forth in this Agreement shall run with and bind the Property. All covenants, conditions and restrictions set forth in this Agreement shall be equitable servitudes. All of the easements, covenants, conditions and restrictions set forth in this Agreement shall benefit and be binding upon each Party and their respective heirs, successors and assigns and shall create reciprocal rights and obligations, and privily of contract and estate between and among, the Parties and their respective heirs, successors and assigns. Upon the recordation in the Official Records of the county in which the Property is located of the conveyance of fee title to a portion of the SDG&E Property, SDG&E shall thereafter be relieved from all further obligations, duties and liabilities under this Agreement accruing after the date of such transfer with respect to the portion of the SDG&E Property conveyed, and its transferee shall thereafter be a Party hereunder as SDG&E's successor and assign with respect to the Property conveyed. SDG&E shall provide to all then current Property owners written notice of the transfer. Any Party may grant to any contractors, suppliers, representatives or agents of such Party rights in the Property, easements and other rights of such Party granted hereunder. No Pemrittee of a Party shall acquire any rights of a Party hereunder, except to the extent such Party's rights are expressly assigned to such Pennittee and such Permittee expressly assumes in writing the obligations, duties and liabilities of such Party under this Agreement accruing from and after the date of assignment. Jn no event shall the consent or approval of any Permittee be required in connection with, or as a condition to, any amendment, modification or termination of this Agreement. 14. RIGHTS OF LENDERS 14.1 Priority of Lien of Mortgage. This Agreement shall be and remain senior in priority to all Mortgages hereafter executed upon the Property or any portion thereof; provided, however, that no breach of the covenants, conditions or restrictions herein contained shall affect, impair, defeat or render invalid the lien, charge or priority of any Mortgage made in good faith and for value which encumbers any portion of the Property. Any Mortga~ee or other future 17 SD\372805.2 ... ' .... ' ·,.~ ..... , .,..... ' . ,· ., - owner whose title to any portion of the Property is derived through foreclosure, trustee's sale, or deed in lieu of foreclosure, shall take title to such portion of the Property subject to, and shall be bound by, all the covenants, conditions and restrictions set forth in this Agreement. 14.2 Notice of Default Each Mortgagee, upon delivery of a written request for such notification with the then owners of the Property, shall be entitled to written notification of any default in the performance of the obligations under this Agreement of the Party with respect to which such Mortgagee holds a Mortgage concurrently with written notification of default to such Party. If such default has-not been cured within thirty (30) days after written notice thereof has been given to such Party, such Mortgagee shall thereafter have the right to cure such default on behalf of its Party within the thirty (30) day period immediately following the expiration of the applicable cure period allowed to such Party plus, if the nature of the pa¢cular default reasonably requires more than thirty (30) days to cure, such additional time as shall be reasonably necessary if cure is commenced within such thirty (30) day period and diligently prosecuted thereafter to completion. 14.3 Curing Defaults.· Except as otherwise provided herein, a Mortgagee or the immediate transferee of such Mortgagee, who acquires title by judicial foreclosure, a deed in lieu of foreclosure, trustee sale, or otherwise, shall not be obligated to cure any breach of the provisions of this Agreement which occurred before such Mortgagee or transferee acquired title if (i) such breach is noncurable or of a type which is not feasible to cure, and (ii) such Mortgagee did not have notice of such a breach at the time it acquired its lien or security interest in the Property. 14.4 Conflicts. In the event of any conflict between any of the provisions of this Section 14 and any of the other provisions of this Agreement, the provisions of this Section 14 shall control. 15. MISCELLANEOUS PROVISIONS 15.1 Constructive Notice and Acceptance. Every Person who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to every covenant, condition, restriction and provision contained in this Agreement, whether or. not any reference to this Agreement is contained in the instrument by which slich Person acquired an interest in the Property. 15.2 Notices. Except as otherwise provided herein, all notices, requests, demands, waivers, consents, billings, and other communications hereunder shall be in writing, shall be delivered either in person, by telegraphic, facsimile or other electronic means, by overnight air. courier or by mail, and shall be deemed to have been duly given and to have become effective (a) upon receipt if delivered in person or by telegraphic, facsimile or other electronic means, (b) one business day after having been delivered to an air courier for overnight delivery or ( c) three business days after having been deposited in the U.S. mails as certified or registered mail, return receipt requested, all fees prepaid, directed to the parties or their permitted assignees at the following addresses (or at such other address as shall be given in writing by a party hereto): 18 S0\372805.2 •., ... ,,,~_ ... , ... _,.,,, ... ,. ·•··,---,·-·--··---··--·----,------r--.-_ .. _ . ., ... ,. Ifto SDG&E, addressed to: San Diego Gas & Electric Company 101 Ash Street San Diego, California 92112 Attn: Bruce Williams Facsimile: (619) 696-4027 with a copy to each counsel .for SDG&E: San Diego Gas & Electric Company 101 Ash Street San Diego, California 92112 Attn: Michael Thorp, Esq. Facsimile: (619) 699-5027 Latham & Watkins LLP 633 West Fifth Street, Suite 4000 Los Angeles, California 90071 Attn: David B. Rogers, Esq. Facsimile: (213) 891-8763 If to Plant Owner, addressed to: Dynergy Power Corp. 1000 Louisiana, Suite 5800 Houston, TX 77002-5050 Attn: General Counsel Facsimile: (713) 767-8508 NRG Energy, Inc. 1221 Nicollet Mall, Suite 700 Minneapolis, MN 55403 Attn: President, North American Development Facsimile: (612) 373-5430 with a copy to each "counsel for Plant Owner: Skadden, Arps, Slate, Meagher & Flom 1440 New York Avenue, 'NW Washington, DC 20005 Attn: Erica A. Ward, Esq. Facsimile: (202) 393-5760 .• "-, ·Y 15.3 No Waiver. The failure of a Party to insist, in any one or more instances, on performance of any of the terms, covenants and conditions of this Agreement shall not be 19 SD\372805.2 construed as a waiver or relinquishment of any rights granted hereunder or of the future performance of any such term, covenant or condition, but the obligations of the Parties with respect thereto shall continue in full force and effect. No waiver of any provision or condition of this Agreement by a Party shall be valid unless in writing signed by such Party or.operational by the terms of this Agreement. A waiver by one Party of the performance of any covenant, condition, representation or warranty of the other Party shall not invalidate this Agreement, nor shall such waiver be construed as a waiver of any other covenant, condition, representation or warranty. A waiver by any Party of the time for performing any act shall not constitute a waiver of the time·for performing any other act or the time for performing an identical·act required to be performed at a later time. 15.4 Headings. Section headings used herein are for convenience only and are not a part of this Agreement and shall not be used in construing it. 15.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be valid, binding and enforceable under applicable law, but if any provision of this Agreement is held to be invalid, void (or voidable) or unenforceable under applicable.Laws, such provision shall be ineffective only to the extent held to be invalid, void ( or voidable) or unenforceable, without affecting the remainder of such provision or the remaining provisions of this Agreement. 15.6 Estoppels. Within thirty (30) days following a request in writing by a Party, the other Party shall execute and deliver to any prospective purchaser or Mortgagee of the requesting Party's Property an estoppel certificate confirming that (i) this Agreement is in full force and effect, and has not been modified or amended ( or stating any such modifications or amendments), and (ii) to the best knowledge of the certifying Party, there are no existing uncured defaults by any Party under this Agreement ( or if any default exists, a description of the default). 15. 7 Cumulative Remedies. Each remedy provided for in this Agreement shall be cumulative and not exclusive, · The failure to exercise any remedy provided for in this Agreement shall not constitute a waiver of such remedy or of any other remedy provided herein or therein. 15.8 Attorneys' Fees and Costs. Subject to the provisions of Section 13, in any litigation or other proceeding relating to this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees. 15.9 Approvals. In the event that a Party shall be requested in writing to provide its approval or consent to a matter described in this Agreement, and such Party shall fail to respond to such request in writing within sixty{60) days following any such request which makes reference to the provisions of this Section 15.9, then such Party shall be deemed to have approved, or consented to, the matter as to which its approval or consent was requested. 15.10 Amendments. Any amendments or modifications of this Agreement shall be made only in a writing executed by all Parties; and no such amendments shall be effective as against any Mortgagee, or any Mortgagee's successors or assignees, including any purchaser at foreclosure or purchaser by deed in lieu of foreclosure, without the written consent of all Mortgagees at the tiill.e of execution thereof. 20 S01372805.2 --· , ......... b 15.11 Governing Law. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of California applicable to contracts made and to be performed wholly within the State of California by residents of the State of California, provided that federal law, including the Federal Arbitration Act, shall govern all issues concerning the validity, enforceability and interpretation or the arl>itration provision set forth in Section 12. Any action or proceeding arising under this Agreement shall be adjudicated in San Diego, California. 15.12 · Entire Agreement. This Agreement (including the exhibits hereto) contams the entire understanding between the Parties concerning the subject matter hereof and, except as expressly provided for herein, supersede all prior understandings and agreements, whether oral or written, between them with respect to the subject matter hereof. 15.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument 15.14 Exhibits. All exhibits attached to this Agreement are incoiporated herein by this reference. 15.15 No Third Party Rights. The Parties do not intend to create rights in, or grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation or understanding established under this Agreement, except insofar as such third party may be an Indemnitee hereunder. Notwithstanding the foregoing, Plant Owner may grant to its lenders a security interest in its rights under this Agreement or assign ( after Closing) its rights hereunder to any Person or Persons acquiring the Plant; provided, that neither the grant of any such interest, nor the foreclosure of any such interest, shall in any way release, reduce or diminish the obligations of Plant Owner to SDG&E hereunder. 15.16 Further Assnrances. Each Party agrees that it will, at any time and from time to time, upon the written request of the other Party, execute and deliver such further documents (in recordable form, if appropriate under the circumstances) and do such further acts and things, as the requesting Party may reasonably request in order to effect the purposes of this Agreement 15.17 Exceptions to Easements. The easements in this Agreement are granted subject to (i) taxes and assessments not yet due and payable; (ii) all covenants, conditions, restrictions, reservations, rights, rights of way, easements, encumbrances, leases, liens and other title matters of record; (iii) all agreements, contracts, easements, leases, Licenses, covenants, conditions, restrictions and other matters affecting title which are not of record, but which have been disclosed by SDG&E to Plant Owner in writing; and (iv) all other matters which would be disclosed by an inspection or accurate survey. 21 SD\372805.2 .,•-~-y 15.18 Evidence of Termination of Easements. Plant Owner covenants for itself, its successors and assigns that should Plant Ownei: discontinue use of any of the easements granted herein, then said easement shall terminate and Plant Owner, upon receipt of written request of SDG&E, shall execute and deliver to such other Party a good and sufficient quitclaim deed to all rights therein. · IN WITNESS .WHEREOF, .the.Parties hereto have caused this Easement Agreement to be executed by their respective duly authorized officers as of the date first above written. CABRILLO POWER I LLC ,.. SAN DIEGO GAS & ELECTRIC COMPANY BY.~-_,...+-4;/io,,~~~~}i~.i---Name: Mar ~ Kyd Title: Seni Vice ident 22 SD\372805.2 - •-,~•••••n·=--n•···,•••••••·, •• . ------~------------- STATE OF CALIFORNIA) )ss. COUNTYOF;')~':S)iril.~Cl _ On ~?"-'"¼-\.i,)2..003 beforeme,c\{ o.c:J?-=-c__AA-$)_) ¥\:t;.,.._() personally appeared ':% t;l',.~tfr;; \(_,:J~ ~-..__ ____ _ personally known to me (llf pFe¼ed tc me oo tbe b?<:is of sati,r!n:toty ~e)-to be the person(;llQ whose nam~ is/~ subscribed to the within instrument and acknowledged to me that ~she/~ executed the same in..b$her/tbsir authorized capacit~) and that by Jii(lher/!)ie.it signaturej),3 on the Instrument the personW, or the entity upon behalf of which the perso~ acted, executed the instrument. WITNESS my hand and official seal. Signature cf:_,D Q 9 ( ,C½ ,Q (This area for official notarial seal) STATE OF CALIFORNIA) )ss. COUNTYOF~) On ~(/t>J beforeme, J (! h,r{<lf,.{: personally appe~d /l;./u:;I ?11:J cf 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 · ent. · (This/area r official notarial seal) l SD\J7280l.2 23 ,...._ u EXHIBIT A SURVEY MAP OF EASEMENTS 24 SD\372805.2 ~, -, --' 11111111 £ lflll(S. H - - ~ I f'lll(II. D - ·-·------- I li!!:r :11 iii i i;s! .. ~,~ " i ~~~ EXHIBIT2.1 WATER LINES AND FIRE SAFETY TANKS PARCEL 1: Commencing at the most Southerly comer oftheland surveyed and shown on Record of Survey Map No. 14621, filed August 18, 1994 at File No. 1994-500086 in the Office of the County Recorder of said County of San Diego; 'said most Southerly comer bears South 28° 40' 19" East, 656. 70 feet (rec. South 29° 17' 1 0" East, 656.54 feet) from the Northeast comer thereof; thence along the Westerly right of way line of the AT&SF Railroad, South 28° 40' 19" East, 1110.14 feet and South 22° 30' 13" East, 2454.88 feet to a point herein designated Point "A"; thence South 65° 18' 50" West, 388.66 feet; thence South 48° 39' 34" West, 380.31 feet to the 1RUE POINT OF BEGINNING; thence South 65° 10' 2T' West, 61.93 feet to a point herein designated Point "B"; thence North 21° 15' 57'' West, 116.86 feet to a point herein designated Point "C"; thence North 68° 55' 45" East, 63.65 feet to a point herein designated Point "D"; thence South 20° 20' 10" East, 112.81 feet to the 1RUE POINT OF BEGINNING. ALSO: Those certain strips of land 6.00 feet in width, the center line of said strips are described as follows: I. Beginning at said Point "A"; thence South 65° 18' 50" West, 388.66 feet; thence South 48° 39' 34" West, 380.31 feet. 2. Beginning at said Point "A"; thence North 68° 37' 00" East, 143.58 feet; thence South 22° 46' 37" East, 598.48 feet. 3. Beginning at said Point "B"; thence South 21 ° 15' 57" East, 3.16 feet; South 63° 53' 14" West, 11.34 feet to a point herein designated Point "E"; thence continuing South 63° 53' 14", West, 374.30 feet to a point in the Easterly line of Carlsbad Boulevard. 4. Beginning at said Point "E"; thence North 22° 29' 05" West, 66.20 feet; thence North 67° 5 I ' 10" East, 12. 71 feet. 5. Beginning at said Point "C"; thence North 21 • 15' 57" West, 94.62 feet. 6. Beginning at said Point "D"; thence North 61 ~ 56' 38" West, 94.47 feet; thence South 75° 14' 35" West, 101.31 feet; thence South 85° 43' 07" West, 120.90 feet; thence North 83° 00' 08" West, 43.05 feet. Page 1 of2 SD\3n80S.2 ,· u PARCEL 2: ,. ... --~ i ._,; Commencing at the most Southerly comer of the land surveyed and shown on Record of Survey Map No. 14621, filed August 18, 1994 at File No. 1994-500086 in the Office of the County Recorder of said County of San Diego; said most Southerly comer bears South 28° 40' 19" East, 656.70 feet (rec. South 29° 17' 10" East, 656.54 feet) from the Northeast comer thereof; thence along the Westerly right of way line of the AT&SF Railroad, South 28° 40' 19" East, 1110.14 feet and South 30° 06' 35" East, 2606.83 feet to the TRUE POINT OF BEGINNING; thence North 67° 37' 25" East, 43.00 feet; thence South 22° 22' 35" East, 14.50 feet; thence South 67° 37' 25" West, 43.00 feet; thence North 22° 22' 35" West, 14.50 feet to the TRUE POINT OF BEGINNING. Page2 of2 SD\372805.2 u EXHIBIT2.2 DRAlNAGE Commencing at the most Southerly comer of the land surveyed and shown on Record of Survey Map No. 14621, filed August 18, 1994 at File No. 1994-500086 in the Office of the County Recorder of said County of San Diego; said most Southerly comer bears South 28° 40' 19" East, 656.70 feet (rec. South 29~ 17' IO" East, 656.54 feet) from the Northeast corner thereof;.said most Southerly comer herein designated Point "A"; thence South 30° 06' 35" East, 2606.83 feet to the TRUE POINT OF BEGINNING; thence North 67° 37' 25" East, 43.00 feet; thence South 22° 22' 35" East, 14.50 feet; thence South 67° 37' 25" West, 43.00 feet; thence North 22° 22' 35" West, 14.50 feet to the TRUE POINT OF BEGINNING. ALSO: Those certain slrips of land 12.00 feet in width, the center line of said strips are more particularly described as follows: 1. Commencing at said Point "A"; thence South 35° 21' 29" East, 3571.69 feet to the TRUE POINT OF BEGINNING of the center line herein described; thence North 07° 20' 00" West, 19.93 feet. 2. Commencing at said Point "A"; thence South 27° 44' 55" East, 3496.54 feet to the TRUE POINT OF BEGINNING of the center line herein described; thence North 22° 08' 51" West, 24.52 feet. 3. Commencing at said Point "A"; thence South 26° 44' 22" East, 3781.21 feet to the TRUE POINT OF BEGINNING of the center line herein descnbed; thence South 79° 34' 59" West, 61.36 feet. 1 SD\372805.2 ..• ,, ..... -.JJ~" , "•' • CITY OF CARLSBAD APPLICATION FORM FOR CONSISTENCY DETERMINATION APPLICATION • • ' .v CD Q<?;-/:J Project Number: PROJECT NAME: Carlsbad Seawater Desalination Proiect Assessors Parcel Numberf s): 210-010 -:i"f I.Jl--1.J'-l OWNER NAME /Print or Tvne\ APPLICANT NAME /Print or Tvne) Poseidon Resources (Channelside)LLC Peter MacLaggan MAILING ADDRESS MAILING ADDRESS 501 West Broadway CITY AND STATE ZIP TELEPHONE CITY AND STATE ZIP San Diego, CA 92101 619-595-7802 DESCRIPTION OF PROPOSAL (ADD ATTACHMENT IF NECESSARY): See attached letter and exhibits TELEPHONE WOULD YOU LIKE TO ORALLY PRESENT THE PROPOSED CHANGES TO YOUR ASSIGNED STAFF PLANNER/ ENGINEER? YES Im NO □ PLEASE LIST THE NAMES OF ALL STAFF MEMBERS YOU HA VE PREVIOUSLY SPOKEN TO REGARDING THIS PROJECT. IF NONE, PLEASE SO STATE. Please see attached list from Section 10.0 of the Pro;ect EIR FOR CITY USE ONLY 1212;;;/776 $ ~5e,-- FEE REQUIRED/DA TE FEE PAID: RECEIPT NO.: (YJ ,,.,,,.., rY1 I/ RECEIVED BY: ,X,;;4_11 I. Jt'~,I; _vc,,,,.. 1-' ._, I , --7. / Routing: Planning _)Q' Engineering~ Fire~ Other Fonn 16 Rev. 03/08 Page 2 of2 ■ Hofman 111 Planning & Engineering Planning Clvll Engineering Fiscal Services Coastal September 1, 2009 Scott Donnell, Senior Planner 1635 Faraday Avenue, Carlsbad, CA 92008 _, ()~ A/'("-_ I+,) L, VV1 °t/t'//cFf Pl tAq, A.t-fv,-,. ~ Z.Oio 6-(, +1---~ {,1,:...<; -6RJL.-, -f~ +1r.i..-v p fl, ~i-··-\-. 7 \.--DI>-'k. ~ . Sun REQUEST FOR WITHDRAWAL: CONSISTENCY DETERMINATION 08-13 On behalf of Poseidon Resources, this request is being made to formally withdraw Consistency Determination (CD) 08-13 from further city processing. This application was submitted and through staff review, it was determined that formal permit amendments were necessary to process the proposed site plan re- configuration for the Carlsbad Seawater Desalination Plant originally approved in June 2006. Staff review was performed for CD 08-13, and a formal city response letter was not generated. Therefore, if any partial refund is appropriate, please advise accordingly. · Thank you and feel free to contact me at 760.692.4011. Sincerely, €~/VI~~ ERIC MUNOZ Director of Planning RECEIVED SEP O 1 2009 CITY OF CARLSBAD PLANNING DEPT c: Peter MacLaggan, Vice-President -Poseidon Resources 3152 Lionshead Avenue • Carlsbad • CA 92010 • (760) 692-4100 • Fax: (76D) 692-4105 ,,.. .. -Request for Re'Tund City of Carlsbad Account#: 00132104911 (ITEM #3501 Vendor#: Amount of Refund: __,$'-'-13::..:1=.2=0 ____ Fee Paid For: -'C=D:....:oc.::s--'-1=--3 _____ _ Date Fee Paid: _1=2=,2=31.=.:ose-___ Fee Paid By: POSEIDON RESOURCES Fee Supporting Request: APPLICATION WITHDRAW PER APPLICANT REQUEST NAME OF APPLICANT: ---'P--'O:..::S:.=E:..=ID-=O::..e.N-'--'R=-ES:=..:O::...:U:..:..R=C=ES=-------------- STREET ADDRESS: 1044 WASHINGTON BOULEVARD CITY, STATE & ZIP: STAMFORD CT 06901 PREPARED BY: BRIDGET DESMARAIS DATE: 09/14/09 APPROVING ._., . · DEPARTMENT OFFICIAL(w,/4/4 ¢l0Ja~DATE: 9-/1/--0'1 APPROVING OFFICIAL: ---~-------------• CITY OF CARLSBAD REVIEW AND COMMENT MEMO DATE: JUNE 9, 2009 REVIEWNO: 2 TO: [2:1 □ IZI Engineering, Development Services -Terie Rowley Police Department -J. Sasway P, . ··•. "'""PT t. . .: ,t -tJt.; Fire Department -Greg Ryan Tft ,( ·.; DESK □ □ □ □ □ □ □ □ □ □ Building Department -Will Foss Recreation -Mark Steyaert R,.;,,, \ '7)7<::"rj'-lk.~-~· ~-/~_,,_ k'»./ v0 FROM: Public Works Department (streets) -Thomas Moore ____________ Water/Sewer District Landscape Plancheck Consultant -PELA ____________ School District North County Transit District -Planning Department Sempra Energy -Land Management Caltrans (Send anything adjacent to 1-5) Parks/Trails -Liz Ketabian *ALWAYS SEND EXHIBITS PLANNING DEPARTMENT REQUEST FOR REVIEW AND COMMENT ON PROJECT NO(S): _,.C=D-=0=8-_,1-"-3 ___ _ PROJECT TITLE: CARLSBAD SEAWATER DESAL PROJ APPLICANT: MACLAGGAN PETER PROPOSAL:_-'R""E,:.;C""O""N~F'--'l""G"-. P"-'Rc,;O:,:;J,,_.E""'C"-'T'-'Fc.:.A_,,C~IL""l..,_TY.,__ ___________ _ Please review and submit written comments and/or conditions to MEGHAN MCKILLOP, Senior Office Specialist in the Planning Department at 1635 Faraday Avenue, by 06/30/2009 . If you have "No Comments", please so state. If you have any questions, please contact SCOTT DONNELL , at X4618 . Thank you , COMMENTS: -r/KC::.. l?£i"[' rtu:h,..,( :fVU?!qJ (//2i£1B£ -Z./ 1 Tt,C.JJt..,C aAPtt..g:pr,,r"JtC'IC_ ~} -~1.g; e,e.,; H~ ,'(:v,t,,,_y ? at>' 6H-O., (. Etr<ir: AA g.J~-IC O&r.?J" -,-11H .. 1'1/H" p1c.1 ... r/4-ocu>f1&£r gt,;~111,<g:io tt av1,u::; ,,1 r, V£.dJJ J uw::·wrm:v -J<1v()( K.ll,v IEt-J[fL,t aoi1,,<,.;.:, EM--J11I§: F4e"'' a.,,u,,,~,w PLANS ATTACHED Review & Comment 09/07