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PUD 2020-0002; CABRILLO POWER I; Planned Unit Development - Non-Residential (PUD)
____________ _,.--...., _______________ ,, '...------------- Ccicyof Carlsbad LAND USE REVIEW APPLICATION P-1 Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov APPLICATIONS APPLIED FOR: (CHECK BOXES) Development Permits D Coastal Development Pennit D Conditional Use Pennit D Minor D Extension D Day Care (Large) D Minor D Environmental Impact Assessment D Habitat Management Pennit D Minor D Hillside Development Pennit D Minor D Nonconforming Construction Permit Iii Planned Development Permit ■Minor D Residential Ii] Non-Residential □ Planning Commission Determination □ Reasonable Accommodation □ Site Development Plan D Minor □ Special Use Permit Iii Tentative Parcel Map (Minor Subdivision) □ Tentative Tract Map (Major Subdivision) □ Variance D Minor (FOR DEPT. USE ONLY) Legislative Permits Pvb 1fl71J ,..t'JO 02 f-t'.-,~ UJ-'DO o •~ D General Plan Amendment D Local Coastal Program Amendment D Master Plan D Specific Plan D Zone Change □Amendment □Amendment D Zone Code Amendment South Carlsbad Coastal Review Area Permits D Review Permit D Administrative D Minor D Major VIiiage Review Area Permits D Review Permit D Administrative D Minor D Major (FOR DEPT. USE ONLY) NOTE: A PROPOSED PROJECT REQUIRING APPLICATION SUBMITTAL MUST BE SUBMITTED BY APPOINTMENT". PLEASE CONTACT THE APPOINTMENT SPECIALIST AT (760) 602-2723 TO SCHEDULE AN APPOINTMENT. *SAME DAY APPOINTMENTS ARE NOT AVAILABLE ASSESSOR PARCEL NO(S): 210-010-48 & 210-010-4 7 LOCATION OF PROJECT: 4600 Carlsbad Blvd, Carlsbad CA 92008 NAME OF PROJECT: BRIEF DESCRIPTION OF PROJECT: PROJECT VALUE (SITE IMPROVEMENTS) FOR CITY USE ONLY (STREET ADDRESS) Cabrillo Power I Splitting 2 land parcels into 4 land parcels NA ESTIMATED COMPLETION DATE NA Development No. f)e V 2,() w ,-0 i. j 1 Lead Case No. fU P w w-ooot.- P-1 Page 1 of6 Revised 10/20 . 0 d OWNER NAME (PLEASE PRINT) APPLICANT NAME (PLEASE PRINT) INDIVIDUAL NAME Eric Leuze INDIVIDUAL NAME Mark Rohrlick (if applicable): (if applicable): COMPANY NAME Cabrillo Power I LLC COMPANY NAME NRG Energy Inc (if applicable): (if applicable): MAILING ADDRESS: 804 Carnegie Center MAILING ADDRESS: 804 Carnegie Center CITY, STATE, ZIP: Princeton, NJ 08540 CITY, STATE, ZIP: Princeton, NJ 08540 TELEPHONE: 609-524-4500 TELEPHONE: 760-930-1508 EMAIL ADDRESS: Eric.Leuze@nrg.com EMAIL ADDRESS: Mark.Rohrlick@nrg.com I CERTIFY THAT I AM THE LEGAL OWNER AND THAT ALL THE ABOVE I CERTIFY THAT I AM THE LEGAL REPRESENTATIVE OF THE OWNER INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY AND J ALL THE NY:NE INFORMATION IS TRUE AND CORRECT TO KNOWLEDGE. I CERTIFY AS LEGAL OWNER THAT THE APPLICANT Af3 THE B OF MY KNOWLEDGE. SET FORTH HEREIN IS MY AUTHORIZED REPRESENTATIVE FOR PUR~~LICATION. . ... 11/0~/ZOZO 11/13/20 / --,,~- SIGNATURE DATE SIGNATI RE DATE APPLICANT'S REPRESENTATIVE (Print): Patrick Zabrocki, Howes, Weiler, Landy -Planning & Engineering MAILING ADDRESS: 2888 Loker Avenue East #217 CITY, STATE, ZIP: Carlsbad, CA 92010 TELEPHONE: 760-929-2288 EMAIL ADDRESS: pzabrocki@hwl-pe.com I CERTIFY THAT I AM THE REPRESENTATIVE OF THE APPLICANT FOR PURPOSES OF THIS APPLICATION AND THAT ALL THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. ~~~ -~ 11.04.2020 SIGNATURE DATE IN THE PROCESS OF REVIEWING THIS APPLICATION IT MAY BE NECESSARY FOR MEMBERS OF CITY STAFF, PLANNING COMMISSIONERS OR CITY COUNCIL MEMBERS TO INSPECT AND ENTER THE PROPERTY THAT IS THE SUBJECT OF THIS APPLICATION. I/WE CONSENT TO ENTRY FOR THIS PURPOSE. NOTICE OF RESTRICTION: PROPERTY OWNER ACKNOWLEDGES AND CONSENTS TO A NOTICE OF RESTRICTION BEING RECORDED ON THE TITLE TO HIS PROPERTY IF CONDITIONED FOR THE APPLICANT. NOTICE OF RESTRICTIONS RUN WITH THE LAND AND BIND Y CCESSORS IN INTEREST. FOR CITY USE ONLY P-1 Page 2 of6 1mv i) o 2020 CP 't Ci,-•_;Al~L::Sl::lAO r1 AI-Ji.J:.1JC~ D1v1s1C\J DATE SlAMPAPPLICATION RECEIVED RECEIVED BY: Revised 10/20 {cicyof Carlsbad DISCLOSURE STATEMENT P-1(A) Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov 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, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, in this and any other county, city and county, city municipality, district or other political subdivision or any other group or combination 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. 1. 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, titles, 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 Mark Rohrlick Corp/Part NRG Energy Inc Title ___________ _ Title --------------Address 804 Carnegie Center Address Princeton, NJ 08540 2. OWNER (Not the owner's agent) P-1(A) 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, titles, 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 Eric Leuze Corp/Part Cabrillo Power I LLC Title ------------Title _____________ _ Address 804 Carnegie Center Address ------------- Princeton, NJ 08540 Page 1 of 2 Revised 07/10 C 0 3. NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (1) 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 $500 worth of business transacted with any member of City staff, Boards, Commissions, Committees and/or Council within the past twelve (12) months? D Yes l ✓INo If yes, please indicate person(s): __________ _ NOTE: Attach additional sheets if necessary. I certify that all the above information is true and corre o the best of my knowledge. ~11/13/20 Signature of owner/date Eric Leuze, Vice President Print or type name of owner Mark Rohrlick, Senior Director, NRG Energy Inc Print or type name of applicant Signature of owner/applicant's agent if applicable/date Patrick Zabrocki, Howes, Weiler, Landy -Planning & Engineering Print or type name of owner/applicant's agent P-1(A) Page 2 of 2 Revised 07/10 ASSISTANT SECRETARY'S CERTIFICATE OF CABRILLO POWER I LLC I, Deborah R. Fry, the duly elected, qualified and acting Assistant Secretary of Cabrillo Power I LLC, a Delaware limited liability company (the "Company"), do hereby certify that: I. The individuals listed below hold the offices set forth opposite their respective names, and may sign on behalf of the Company; and 2. The signatures of the individuals listed on Exhibit A attached hereto and the signatures set forth opposite their names are their true signatures. Name Christopher S. Moser Gaetan Frotte David Callen Eric Leuze Glen Edwin Mackey Edward Christopher Krupa Sean Beatty Deborah R. Fry Office President Treasurer Vice President Vice President Vice President Vice President, Tax Secretary Assistant Secretary IN WITNESS WHEREOF, I have hereunto set my hand this 5th day of November, 2020. Deborah R. Fry, Assistant Secret C 0 EXHIBIT A Name Title Si nature Eric Leuze Vice President ~ Sean Bea Secreta ~-Q (cicyof Carlsbad PROJECT DESCRIPTION P-1(8) PROJECT NAME: Cabrillo Power I APPLICANT NAME: NRG Energy Inc .....,,, Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov 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: See attached. P-1(8) Page 1 of 1 Revised 07/10 C BACKGROUND tW HOWES IWEILER I LANDY Pl.ANNING & ENGINEERING CABRILLO POWER I PROJECT DESCRIPTION 0 The Cabrillo Power I project consists of a Parcel Map and Minor Non-Residential Planned Development Permit (PUD) to divide a 95.12-acre property owned by NRG into four separate lots. The property is located to the north of the intersection of Cannon Road and Carlsbad Boulevard on both the east and west sides of the NCTD railroad. The parcels created by the proposed map will reflect the boundaries of long-term leases that exist on the site for the Desalination Facility, the new power station and a sewer pump station. PARCEL DESCRIPTION Parcel 1, located on the west side of the railroad, is 5.7 acres in size and corresponds with the area leased by Poseidon for the existing Desalination Facility. The area within the boundaries of Parcel 4A is shown as lot 210-010-48 in the Assessors' Pages. However, the boundaries shown by 210-010-48 correspond to the boundaries of the lease between NRG & Poseidon for financial purposes. This is not a true lot Parcel. The proposed map will make this area a legal lot. Parcel 2, also located on the west side of the NCTD Railroad is 57 .35 acres in size and is occupied by the decommissioned Encina Power Station, the San Diego Gas & Electric (SDG&E) switching yard and aquaculture uses adjacent to the lagoon. No changes are proposed to the switching yard or aquaculture uses and the decommissioned power station is currently being demolished in accordance with the agreement between the City and NRG. Parcel 3, located on the east side of the NCTD Railroad, is 28.91 acres in size and corresponds with the boundaries of the lease agreement with NRG for the new power station. No modifications to the boundaries are being proposed by this map. A portion of Parcel 4, located on the east side of the NCTD Railroad, is currently occupied by a sewer pump station. No changes to this use are being proposed at this time. PURPOSE OF APPLICATION A Minor Non-Residential PUD is being processed concurrently with the proposed Parcel Map. The Non- Residential PUD Ordinance was written to allow for the creation of non-residential lots that do not comply with coverage or area requirements of the underlying zone, such as postage stamp lots throughout the industrial areas of Carlsbad. The goal of the proposed project is to allow NRG to transfer the ownership of the portions of the site leased to the Desalination Facility and the new power station. Lot lines created by the proposed map reflect the boundaries of the existing leases for these uses. The proposed project does not allow for any development to occur, nor will it impact the future redevelopment of the site. Future uses and redevelopment of the site will be determined as a part of the preparation of a Specific Plan. The Desalination Facility, switching yard and new power station will remain at their existing locations regardless of future development on the other portions of this site. ACCESS Parcel 1, the site of the Desai Facility, will gain access across Parcel 2. A copy of the Poseidon Ground Lease and Easement Agreement accompany this submittal. No changes to the access shown on these exhibits is proposed. Parcel 2 will continue to gain access from Carlsbad Boulevard. Parcels 3 and 4 will continue to gain access from an existing easement across the SDG&E property directly to the south. A copy of the existing easement agreement between SDG&E and Cabrillo Power I LLC accompany this submittal. No changes to this access is being proposed. C_cicyof Carlsbad HAZARDOUS WASTE AND SUBSTANCES STATEMENT P-1(C) Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov 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 Waste and Substances Sites List compiled by the California Environmental Protection Agency and hereby certify that (check one): D 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. Ii] The development project and any alternatives proposed in this application m contained on the lists compiled pursuant to Section 65962.5 of the State Government Code. APPLICANT Name: Mark Rohrlick, Senior Director Address: 804 Carnegie Center Princeton, NJ 08540 Phone Number: 609-524-4500 PROPERTY OWNER Name: Eric Leuze, Vice President Address: 804 Carnegie Center Princeton, NJ 08540 Phone Number: 609-524-4500 Address of Site: 4600 Carlsbad Boulevard, Carlsbad, CA 92008 Local Agency (City and county): City of Carlsbad/ County of San Diego Assessor's book, page, and parcel number: 210-010-48 & 210-010-47 S .f . ) Hazardous Waste and Substance List pursuant to Gov. Code Section 65962.5 (Cortese List) pee, y hst(s : ___________________________ _ Regulatory Identification Number: EPA ID #CAT000618900 / SD County DEH ID# 113914 Date of List: August 1, 2013 11104/ZOZO /~---11/13/20 Property Owner Signature/Date The Hazardous Waste and Substances Sites List (Cortese List) is used by the State, local agencies and developers to comply with the California Environmental Quality Act requirements in providing information about the location of hazardous materials release sites. P-1(C) Page 1 of2 Revised 02/13 C 0 Per the California Environmental Protection Agency's website, 'While Government Code Section 65962.5 [referred to as the Cortese List] makes reference to the preparation of a "list," many changes have occurred related to web-based information access since [the amended statute's effective date in] 1992 and this information is now largely available on the Internet sites of the responsible organizations. Those requesting a copy of the Cortese "list" are now referred directly to the appropriate information resources contained on the Internet web sites of the boards or departments that are referenced in the statute." Below is a list of agencies that maintain information regarding hazardous waste and substances sites. Department of Toxic Substances Control www.calepa.ca.gov/sitecleanup/CorteseList/default.htm www.calepa.ca.gov/database/calsites www.envirostor.dtsc.ca.gov/public EnviroStor Help Desk (916) 323-3400 State Water Resources Control Board http://geotracker.waterboards.ca.gov/ County of San Diego Department of Environmental Health Services www.co.san-diego.ea.us/deh Hazardous Materials Division www.sdcounty.ca.gov/deh/hazmat/hazmat permits.html Mailing Address: County of San Diego Department of Environmental Health P.O. Box 129261 San Diego, CA 92112-9261 Call Duty Specialist for technical questions at (858) 505-6880, fax (858) 505-6868 (fax) Environmental Protection Agency National Priorities Sites ("Superfund" or "CERCLIS") www.epa.gov/superfund/sites/cursites (800) 424-9346 or (702) 284-8214 National Priorities List Sites in the United States www.epa.gov/superfund/sites/npl/npl. htm P-1(C) Page 2 of2 Revised 02/13 15. 16. - If residential, include the number of units and schedule of unit sizes: _N_A ________ _ If commercial, indicate the type, whether neighborhood, city or regionally oriented, square footage of sales area, and loading facilities: NA 17. If industrial, indicate type, estimated employment per shift, and loading facilities: NA 18. If institutional, indicate the major function, estimated employment per shift, estimated occupancy, loading facilities, and community benefits to be derived from the project: NA 19. If the project involves a variance, conditional use or rezoning applications, state this and indicate clearly why the application is required: NA P-1(D) Page 3 of 4 Revised 07/10 C 0 Are the following items applicable to the project or its effects? Discuss all items checked yes (attach additional sheets as necessary). Yes No 20. Change in existing features of any bays, tidelands, beaches, or hills, or substantial □ 0 alteration of ground contours. 21. Change in scenic views or vistas from existing residential areas or public lands or □ 0 roads. 22. Change in pattern, scale or character of general area of project. □ 0 23. Significant amounts of solid waste or litter. □ 0 24. Change in dust, ash, smoke, fumes or odors in vicinity. □ 0 25. Change in ocean, bay, lake, stream or ground water quality or quantity, or □ 0 alteration of existing drainage patterns. 26. Substantial change in existing noise or vibration levels in the vicinity. □ 0 27. Site on filled land or on slope of 1 0 percent or more. □ 0 28. Use of disposal of potentially hazardous materials, such as toxic substances, □ 0 flammables or explosives. 29. Substantial change in demand for municipal services (police, fire, water, sewage, □ 0 etc.). 30. Substantially increase fossil fuel consumption (electricity, oil, natural gas, etc.). □ 0 31. Relationship to a larger project or series of projects. □ 0 Environmental Setting Attach sheets that include a response to the following questions: 32. Describe the project site as it exists before the project, including information on topography, soil stability, plants and animals, and any cultural, historical or scenic aspects. Describe any existing structures on the site, and the use of the structures. Attach photographs of the site. Snapshots or Polaroid photos will be accepted. 33. Describe the surrounding properties, including information on plants and animals and any cultural, historical or scenic aspects. Indicate the type of land use (residential, commercial, etc.), intensity of land use (one-family, apartment houses, shops, department stores, etc.), and scale of development (height, frontage, set-back, rear yard, etc.). Attach photographs of the vicinity. Snapshots or polaroid photos will be accepted. Certification I hereby certify that the statements furnished above and in the attached exhibits present the data and information required for this initial evaluation to the best of my ability, and that the facts, statements, and information presented are true and correct to the best of my knowledge and belief. 11/06/2020 Date: Signature: For: P-1(D) Page 4 of 4 Revised 07/10 t~ HOWES IWEIL£R I LANDY Pt.ANNING & ENGINEERING P-1 {D) Environmental Setting Description Cabrillo Power I LLC Subdivision November 2020 32. Describe the project site as it exists before the project, including information on topography, soil stability, plants and animals, and any cultural, historical or scenic aspects. Describe any existing structures on the site, and the use of the structures. Attach photographs of the site. Snapshots or Polaroid photos will be accepted. The project site located at 4600 Carlsbad Boulevard, regionally located in the northwestern portion of the City of Carlsbad along the coastline. The main access to the site is from the northwestern portion of the site along Carlsbad Boulevard. Topography of the site starts at sea level along the western portion and increases to a maximum elevation of approximately 50 feet at the eastern portion of the site. There are four terraced sections of the site from west to east, with transitions, that have a respective approximate elevation of 2 feet, 18 feet, 30 feet, and 50 feet above sea level. The project site at has been built out for decades and contains stable soils. The project site contains the Poseidon Desalination Plant, the new power station, a sewer pump station, aquaculture uses, and a San Diego Gas & Electric (SDG&E) switchyard. Additionally, the project site contains the now decommissioned Encina Power Plant and associate smokestack tower as well as the ancillary equipment and supporting structures, all of which have been determined to not have any significant cultural or visual significance. The majority of the site contains mature ornamental vegetation and animals typically associated with a developed urban setting. The photos presented in Attachment 1 -Existing Site Photographs depict the current site setting. 33. Describe the surrounding properties, including information on plants and animals and any cultural, historical or scenic aspects. Indicate the type of land use (residential, commercial, etc.), intensity of land use ( one-family, apartment houses, shops, department stores, etc.), and scale of development (height, frontage, set-back, rear yard, etc.). Attach photographs of the vicinity. Snapshots or polaroid photos will be accepted. The proposed project site includes two parcels (APN 210-010-48 & 210-010-47) located along the southern side of the Agua Hedionda Lagoon with Interstate 5 and agricultural land to the east, Carlsbad Boulevard and the Pacific Ocean to the west, and the SDG&E North Coast Construction and Operations property to the south. The property is bisected by the coastal railroad tracks in a north to south direction. The uses, size and intensity of the SDG&E property to the south are less than the project site with single story administration buildings and construction/equipment/vehicle storage as the primary use. The surrounding properties to the west, north and east do not contain development. The photos in Attachment 2 -Existing Surrounding Photographs depict the surrounding properties. ll Page CABRILLO LOT SPLIT EIA ATTACHMENT 1 -EXISTING SITE PHOTOGRAPHS Parcel 1 Parcel 2 Parcel 3 Parcel 4 CABRILLO LOT SPLIT EIA ATTACHMENT 2 -EXISTING SURROUNDING PHOTOGRAPHS North East South West { Cicyof Carlsbad TIME LIMITS ON DISCRETIONARY PROJECTS P-1 (E) PLEASE NOTE: Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov Time limits on the processing of discretionary projects established by state law do not start until a project application is deemed 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 to make this application complete. When the application is complete, the processing period will start upon the date of the completion letter. If you have any questions regarding application submittal requirements (i.e., clarification regarding a specific req ·rement or whether all requirements are necessary for your particular application) please call ( ) 602-4610. Applicant Signature: Staff Signature: Date: To be stapled with receipt to the application P-1(E) Page 1 of 1 Revised 07/10 { Cicyof Carlsbad ,-_ """ ._..~TENTATIVE PARCEL MAP WAIVER OF PROCESSING TIME LIMITS P-1{F) Development Services Planning Division 1635 Faraday Avenue 760-602-4610 www.carlsbadca.gov Proposed Minor Subdivision No.: __________ _ Subdivision Map Act (SMA) Section 66452.1 sets a 50-day time limit for the Planning Division to process tentative parcel maps. Per SMA Section 66451.1, this time limit may be extended by mutual consent of the applicant and the city to allow for concurrent processing of related approvals or an environmental review of the project. By accepting applications for tentative parcel maps concurrently with applications for other approvals that are prerequisites to the map (e.g., Environmental Information Form, Environmental Impact Report, Condominium Permit, Planned Unit Development), the 50-day time limit is often exceeded. For the city to process a tentative parcel map application concurrently, the property owner or applicant must sign this agreement. If this agreement is not signed, the city will accept the tentative parcel map application only after all prerequisites to the map have been processed and approved. The undersigned acknowledges the processing time required by the city is expected to exceed the 50-day time restriction and hereby waives such time restriction for city planner action. Mark Rohrlick ///O4/ZOZfligner is (check one): . ~Property Owner [{]Applicant Signatur Print Name Date ,,,..---~~ Eric Leuze Signer is (check one): -~-~--------_-_____________ 1_1_/1_3/_2_0 __ []Property Owner □Applicant Signature Print Name Date P-1 (F} Rev. 04/13 { City of Carlsbad I"""" """. TEth-"ATIVE PARCEL MAP TENANi' NOTIFICATION STATEMENT (Statement of Compliance with Subdivision Map Act Sect. 66427.1) P-1(G) Proposed Minor Subdivision No.: ___________ _ Development Services Planning Division 1635 Faraday Avenue 760-602-4610 www.carlsbadca.gov I hereby ce ·ty that I have read Subdivision Map Act Section 66427.1 (provided below) and that I will make all notification the tenants required therein. Signature □Property Owner Signature 0Property Owner IZ]Applicant □Applicant Subdivision Map Act Section 66427.1 Mark Rohrlick Print Name Eric Leuze Print Name 11/01/ZOZO Date 11/13/2020 Date (a) The legislative body shall not approve a final map for a subdivision to be created from the conversion of residential real property into a condominium project, a community apartment project, or a stock cooperative project, unless it finds as follows: (1) Each tenant of the proposed condominium, community apartment project, or stock cooperative project, and each person applying for the rental of a unit in the residential real property, has received or will have received all applicable notices and rights now or hereafter required by this chapter or Chapter 3 (commencing with Section 66451). (2) Each of the tenants of the proposed condominium, community apartment project, or stock cooperative project has received or will receive each of the following notices: (A) Written notification, pursuant to Section 66452.9, of intention to convert, provided at least 60 days prior to the filing of a tentative map pursuant to Section 66452. {B) Ten days' written notification that an application for a public report will be, or has been, submitted to the Department of Real Estate, that the period for each tenant's right to purchase begins with the issuance of the final public report, and that the report will be available on request. (C) Written notification that the subdivider has received the public report from the Department of Real Estate. This notice shall be provided within five days after the date that the subdivider receives the public report from the Department of Real Estate. {D) Written notification within 10 days after approval of a final map for the proposed conversion. (E) One hundred eighty days' written notice of intention to convert, provided prior to termination of tenancy due to the conversion or proposed conversion pursuant to Section 66452.11, but not before the local authority has approved a tentative map for the conversion. The notice given pursuant to this paragraph shall not alter or abridge the rights or obligations of the parties in performance of their covenants, including, but not limited to, the provision of services, payment of rent, or the obligations imposed by Sections 1941, 1941.1, and 1941.2 of the Civil Code. (F) Notice of an exclusive right to contract for the purchase of his or her respective unit upon the same terms and conditions that the unit will be initially offered to the general public or terms more favorable to the tenant. The exclusive right to purchase shall commence on the date the subdivision public report is issued, as provided in Section 11018.2 of the Business and Professions Code, and shall run for a period of not less than 90 days, unless the tenant gives prior written notice of his or her intention not to exercise the right. (b) The written notices to tenants required by subparagraphs (A) and (B) of paragraph (2) of subdivision (a) shall be deemed satisfied if those notices comply with the legal requirements for service by mail. (c) This section shall not diminish, limit or expand, other than as provided in this section, the authority of any city, county, or city and county to approve or disapprove condominium projects. {d) If a rental agreement was negotiated in Spanish, Chinese, Tagalog, Vietnamese, or Korean, all required written notices regarding the conversion of residential real property into a condominium project, a community apartment project, or a stock cooperative project shall be issued in that language. P-1(G) Page 1 of 1 Revised 11 /12 Development Services Planning Division 1635 Faraday Avenue 760-602-4610 www.carlsbadca.gov PURPOSE CLIMATE ACTION PLAN CONSISTENCY CHECKLIST P-30 (City of Carlsbad In July 2020, the City of Carlsbad adopted an amended Climate Action Plan (CAP) that outlines actions that the city will undertake to achieve its proportional share of state greenhouse gas (GHG) emissions reductions. This checklist contains measures that are required to be implemented on a project-by-project basis to ensure that the specified emissions targets identified in the Climate Action Plan (CAP) are achieved. Implementation of these measures will ensure that new development is consistent with the CAP's assumption for relevant CAP strategies toward achieving the identified greenhouse gas (GHG) reduction targets. In this manner, a project's incremental contribution to a cumulative GHG emissions effect may be determined not to be cumulatively considerable if it complies with the requirements of the CAP, in accordance with CEQA Guidelines Sections 15064(h)(3), 15130(d), and 15183(b). This checklist is intended to assist project applicants in identifying CAP ordinance requirements and demonstrate how their project fulfills those requirements. This checklist is to be completed and included in applications for new development projects that are subject to discretionary review or require a building permit. APPLICATION SUBMITTAL REQUIREMENTS • The completed checklist must be included in the project submittal package or building permit application. Application submittal procedures can be found on the City of Carlsbad website. This checklist is designed to assist the applicant in identifying the minimum CAP-related requirements specific to their project. However, it may be necessary to supplement the completed checklist with supporting materials, calculations or certifications, to demonstrate full compliance with CAP requirements. For example, projects that propose or require a performance approach to comply with energy-related measures will need to attach to this checklist separate calculations and documentation as specified by the ordinances. • If an item in the checklist is deemed to be not applicable to a project, or is less than the minimum required by ordinance, an explanation must be provided to the satisfaction of the Planning Division or building official. • The requirements in the checklist will be included in the project's conditions of approval or issuance of building permit. • Details on CAP ordinance requirements are available on the city's website. P-30 Page 1 of 7 Revised 07/20 City of Carlsbad Climate Action Plan Consistency Checklist STEP 1: LAND USE CONSISTENCY The first step in determining CAP consistency for discretionary development is to assess the project's consistency with the growth projections used in the development of the CAP. This section allows the city to determine a project's consistency with the land use assumptions used in the CAP. Projects found not to be consistent with the CAP's land use assumptions and that are projected to emit at or above the CAP screening threshold of 900 metric tons of CO2 equivalent (MTC02e) GHG will be subject to a project-specific analysis of GHG emissions' impact on the environment in accordance with the requirements of the California Environmental Quality Act (CEQA). This may result in GHG-reducing mitigation measures applied as a condition of project approval in addition to compliance with the CAP ordinance requirements identified in Step 2 of this checklist. STEP 1 Land Use Consistency Checklist Item (Check the appropriate box and provide an explanation and supporting documentation for your answer) A. Is the proposed project consistent with the existing General Plan land use and specific/master plan or zoning designations? OR, If the proposed project is not consistent with the existing land use plan and zoning designations, does the project include a land use plan and/or specific plan, master plan or zoning designation amendment that would result in an equivalent or less GHG-intensive project when compared to the existing designations? Yes No □ If "Yes", proceed to Step 2 of the checklist. For the second option under Question A above, provide estimated project-related GHG emissions under both existing and proposed designation(s) for comparison. GHG emissions must be estimated in accordance with the City of Carlsbad Guidance to Demonstrating Consistency with the Climate Action Plan. If "No", proceed to Question B. B. The CAP established a screening threshold of 900 MTCO2e/year for new development projects to assist in determining consistency with the CAP. The types and sizes of typical projects listed below have been determined to correspond to the CAP screening threshold. Will the proposed land use change result in the construction of less than any one of the following? • Single-Family Housing: SO dwelling units • Multi-Family Housing: 70 dwelling units • Office: 35,000 square feet • Retail Store: 11,000 square feet • Grocery Store: 6,300 square feet • Other: If the proposed project is not one of the above types, provide a project-specific GHG emissions analysis to determine whether it is below the 900 MTCOze/year screening threshold. If "Ye~', proceed to Step 2 of the checklist. □ □ If "No", the project's GHG impact is potentially significant and must be analyzed in accordance with CEQA. Applicant must prepare a Self-developed GHG emissions reduction program in accordance with the City of Carlsbad Guidance to Demonstrating Consistency with the Climate Action Plan to demonstrate how it would offset the increase in emissions over the existing designations. The project must incorporate each of the applicable measures identified in Step 2 to mitigate cumulative GHG emissions impacts unless the decision maker finds that a measure is infeasible in accordance with California Environmental Quality Act Guidelines Section 15091. Mitigation in lieu ofor in addition to the measures in Step 2 may be required, depending on the results of the project-specific GHG impact analysis. Proceed and complete a project-specific Self-developed GHG emissions reduction program and Step 2 of the Checklist. P-30 Page 2 of 7 Revised 07/20 ... ·.. ,.. City of Carlsbad Climate Action Plan Consistency Checklist STEP 2: CAP ORDINANCE COMPLIANCE REQUIREMENTS Completion of this checklist will document a project's compliance with CAP ordinances, and in turn, demonstrate consistency with the applicable measures and actions ofthe CAP. The compliance requirements in this Step 2 apply to development projects that require a building permit. All other development projects shall implement all emissions-related mitigation measures from the General Plan Update EIR. Application Information Project No./Name: Cabrillo Power I LLC Subdivision Property Address/APN: 4600 Carlsbad Boulevard, Carlsbad CA 92008 Applicant Name/Co.: Mark Rohrlick, NRG Energy Inc Applicant Address: 804 Carnegie Center, Princeton NJ 08540 Contact Phone: 760-930-1508 Contact Email: Mark.Rohrlick@nrg.com Contact information of person completing this checklist (if different than above): Name: Patrick Zabrocki Contact Phone: 760-929-2288 ex. 407 Company name/address: Howes, Weiler, Landy -Planning & Engineering Contact Email: pzabrocki@hwl-pe.com 2888 Loker Avenue E. #217, Carlsbad CA 92010 Use the table below to determine which sections of the Ordinance Compliance checklist are applicable to your project. If your project includes alterations or additions to an existing building, please contact the Carlsbad Building Division for assistance in estimating building permit valuation, by phone at 760-602-2719 or by email at bu ilding@carlsbadca.gov. Estimated Building Permit Valuation (BPV): $ 0 (no development proposed) Construction Type Complete Section(s) Notes: D Residential □ Alterations: □ BPV <!: $60,000 □ BPV <!: $60,000 □ Electrical service panel upgrade □ BPV <!: $200,000 □ New construction lA lA and 4A 4A lA and 4A All residential alterations 1-2 family dwellings and townhouses with attached garages only Multi-family dwellings only where interior finishes are removed and significant site work and upgrades to structural and mechanical, electrical, and/or plumbing systems are proposed [2g Alterations: Proposed project is a parcel map and no development is proposed. Therefore, no further action is required. P-30 Page 3 of 7 Revised 07/20 C City of Carlsbad STORM WATER STANDARDS QUESTIONNAIRE Development Services Land Development Engineering 1635 Faraday Avenue (760) 602-2750 www.carlsbadca.gov E-34 I INSTRUCTIONS: To address post-development pollutants that may be generated from development projects, the city requires that new development and significant redevelopment priority projects incorporate Permanent Storm Water Best Management Practices (BMPs) into the project design per Carlsbad BMP Design Manual (BMP Manual). To view the BMP Manual, refer to the Engineering Standards (Volume 5). This questionnaire must be completed by the applicant in advance of submitting for a development application (subdivision, discretionary permits and/or construction permits). The results of the questionnaire determine the level of storm water standards that must be applied to a proposed development or redevelopment project. Depending on the outcome, your project will either be subject to 'STANDARD PROJECT' requirements or be subject to 'PRIORITY DEVELOPMENT PROJECT' (PDP) requirements. Your responses to the questionnaire represent an initial assessment of the proposed project conditions and impacts. City staff has responsibility for making the final assessment after submission of the development application . If staff determines that the questionnaire was incorrectly filled out and is subject to more stringent storm water standards than initially assessed by you, this will result in the return of the development application as incomplete. In this case, please make the changes to the questionnaire and resubmit to the city. If you are unsure about the meaning of a question or need help in determining how to respond to one or more of the questions, please seek assistance from Land Development Engineering staff. A completed and signed questionnaire must be submitted with each development project application. Only one completed and signed questionnaire is required when multiple development applications for the same project are submitted concurrently. PROJECT INFORMATION PROJECT NAME: Cabrillo Lot Split PROJECT ID: ADDRESS: 4600 Carlsbad Blvd, Carlsbad CA 92008 APN : 210-010-47 & -48 The project is (check one): D New Development ~ Redevelopment (Other -Lot Split) The total proposed disturbed area is: 0 ft2 ( 0 ) acres The total proposed newly created and/or replaced impervious area is: 0 ft2 ( 0 ) acres If your project is covered by an approved SWQMP as part of a larger development project, provide the project ID and the SWQMP # of the larger development project: Project ID SWQMP#: Then , go to Step 1 and follow the instructions. When completed, sign the form at the end and submit this with your application to the city. E-34 Page 1 of 4 REV 02/16 STEP1 TO BE COMPLETED FOR ALL PROJECTS To determine if your project is a "development project", please answer the following question: YES NO Is your project LIMITED TO routine maintenance activity and/or repair/improvements to an existing building ~ □ or structure that do not alter the size (See Section 1.3 of the BMP Design Manual for guidance)? If you answered "yes" to the above question, provide justification below then go to Step 5, mark the third box stating "my project is not a 'development project' and not subject to the requirements of the BMP manual" and complete applicant information. Justification/discussion: (e.g. the project includes only interior remodels within an existing building): If you answered "no" to the above question, the project is a 'development project', go to Step 2. STEP2 TO BE COMPLETED FOR ALL DEVELOPMENT PROJECTS To determine if your project is exempt from PDP requirements pursuant to MS4 Permit Provision E.3.b.(3), please answer the following questions: Is your project LIMITED to one or more of the following: YES NO 1. Constructing new or retrofitting paved sidewalks, bicycle lanes or trails that meet the following criteria: a) Designed and constructed to direct storm water runoff to adjacent vegetated areas, or other non- erodible permeable areas; □ □ b) Designed and constructed to be hydraulically disconnected from paved streets or roads; c) Designed and constructed with permeable pavements or surfaces in accordance with USEPA Green Streets guidance? 2. Retrofitting or redeveloping existing paved alleys, streets, or roads that are designed and constructed in □ □ accordance with the USEPA Green Streets guidance? 3. Ground Mounted Solar Array that meets the criteria provided in section 1.4.2 of the BMP manual? □ □ If you answered "yes" to one or more of the above questions, provide discussion/justification below, then go to Step 5, mark the second box stating "my project is EXEMPT from PDP ... " and complete applicant information. Discussion to justify exemption ( e.g. the project redeveloping existing road designed and constructed in accordance with the USEPA Green Street guidance): If you answered "no" to the above questions, your project is not exempt from PDP, go to Step 3. E-34 Page 2 of 4 REV 04/17 STEP3 TO BE COMPLETED FOR ALL NEW OR REDEVELOPMENT PROJECTS To determine if your project is a PDP, please answer the following questions (MS4 Permit Provision E.3.b.(1)): YES NO 1. Is your project a new development that creates 10,000 square feet or more of impervious surfaces collectively over the entire project site? This includes commercial, industrial, residential, mixed-use, □ □ and public development projects on public or private land. 2. Is your project a redevelopment project creating and/or replacing 5,000 square feet or more of impervious surface collectively over the entire project site on an existing site of 10,000 square feet or □ □ more of impervious surface? This includes commercial, industrial, residential, mixed-use, and public development projects on public or private land. 3. Is your project a new or redevelopment project that creates and/or replaces 5,000 square feet or more of impervious surface collectively over the entire project site and supports a restaurant? A restaurant is a facility that sells prepared foods and drinks for consumption, including stationary lunch counters and □ □ refreshment stands selling prepared foods and drinks for immediate consumption (Standard Industrial Classification (SIC) code 5812). 4. Is your project a new or redevelopment project that creates 5,000 square feet or more of impervious surface collectively over the entire project site and supports a hillside development project? A hillside □ □ development project includes development on any natural slope that is twenty-five percent or greater. 5. Is your project a new or redevelopment project that creates and/or replaces 5,000 square feet or more of impervious surface collectively over the entire project site and supports a parking lot? A parking lot is □ □ a land area or facility for the temporary parking or storage of motor vehicles used personally for business or for commerce. 6. Is your project a new or redevelopment project that creates and/or replaces 5,000 square feet or more of impervious street, road, highway, freeway or driveway surface collectively over the entire project □ □ site? A street, road, highway, freeway or driveway is any paved impervious surface used for the transportation of automobiles, trucks, motorcycles, and other vehicles. 7. Is your project a new or redevelopment project that creates and/or replaces 2,500 square feet or more of impervious surface collectively over the entire site, and discharges directly to an Environmentally Sensitive Area (ESA)? "Discharging Directly to" includes flow that is conveyed overland a distance of □ □ 200 feet or less from the project to the ESA, or conveyed in a pipe or open channel any distance as an isolated flow from the project to the ESA (i.e. not commingled with flows from adjacent lands).* 8. Is your project a new development or redevelopment project that creates and/or replaces 5,000 square feet or more of impervious surface that supports an automotive repair shop? An automotive repair □ □ shop is a facility that is categorized in any one of the following Standard Industrial Classification (SIC) codes: 5013, 5014, 5541, 7532-7534, or 7536-7539. 9. Is your project a new development or redevelopment project that creates and/or replaces 5,000 square feet or more of impervious area that supports a retail gasoline outlet (RGO)? This category includes □ □ RGO's that meet the following criteria: (a) 5,000 square feet or more or (b) a project Average Daily Traffic (ADT) of 100 or more vehicles per day. 10. Is your project a new or redevelopment project that results in the disturbance of one or more acres of land □ □ and are expected to generate pollutants post construction? 11 . Is your project located within 200 feet of the Pacific Ocean and (1) creates 2,500 square feet or more of impervious surface or (2) increases impervious surface on the property by more than 10%? (CMC □ □ 21 .203.040) If you answered "yes" to one or more of the above questions, your project is a PDP. If your project is a redevelopment project, go to step 4. If your project is a new project, go to step 5, check the first box stating "My project is a PDP ... " and complete applicant information. If you answered "no" to all of the above questions, your project is a 'STANDARD PROJECT.' Go to step 5, check the second box stating "My project is a 'STANDARD PROJECT' .. ." and complete applicant information. E-34 Page 3 of 4 REV 04/17 STEP4 TO BE COMPLETED FOR REDEVELOPMENT PROJECTS THAT ARE PRIORITY DEVELOPMENT PROJECTS (PDP) ONLY Complete the questions below regarding your redevelopment project (MS4 Permit Provision E.3.b.(2)): YES NO Does the redevelopment project result in the creation or replacement of impervious surface in an amount of less than 50% of the surface area of the previously existing development? Complete the percent impervious calculation below: Existing impervious area (A) = sq. ft. □ □ Total proposed newly created or replaced impervious area (B) = sq. ft. Percent impervious area created or replaced (B/A)*100 = % If you answered "yes", the structural BMPs required for PDP apply only to the creation or replacement of impervious surface and not the entire development. Go to step 5, check the first box stating "My project is a PDP ... " and complete applicant information. If you answered "no," the structural BMP's required for PDP apply to the entire development. Go to step 5, check the check the first box stating "My project is a PDP ... " and complete applicant information. STEPS CHECK THE APPROPRIATE BOX AND COMPLETE APPLICANT INFORMATION D My project is a PDP and must comply with PDP stormwater requirements of the BMP Manual. I understand I must prepare a Storm Water Quality Management Plan (SWQMP) for submittal at time of application. 0 My project is a 'STANDARD PROJECT' OR EXEMPT from PDP and must only comply with 'STANDARD PROJECT' stormwater requirements of the BMP Manual. As part of these requirements , I will submit a "Standard Project Requirement Checklist Form E-36' and incorporate low impact development strategies throughout my project. Note: For projects that are close to meeting the PDP threshold, staff may require detailed impervious area calculations and exhibits to verify if 'STANDARD PROJECT' stormwater requirements apply. ~ My Project is NOT a 'development project' and is not subject to the requirements of the BMP Manual. Applicant Information and Signature Box Applicant Name: Patrick Zabrocki Applicant Title: Applicant Representative Applicant Signature: ~--Date: 11/18/2020 .. • Environmentally Sens1t1ve Areas include but are not limited to all Clean Water Act Section 303(d) 1mpa1red water bodies; areas designated as Areas of Special Biological Significanc;e by the State Water Resources Control Board (Water Quality Control Plan for the San Diego Basin (1994) and amendments); water bodies designated with the RARE beneficial use by the State Water Resources Control Board (Water Quality Control Plan for the San Diego Basin (1994) and amendments); areas designated as preserves or their equivalent under the Multi Species Conservation Program within the Cities and County of San Diego; Habitat Management Plan; and any other equivalent environmentally sensitive areas which have been identified by the City. This Box for City Use Onlv YES NO City Concurrence: □ □ By: Date : Project ID: E-34 Page 4 of 4 REV 04/17 ,......,.__ 1189r' TABLE OF CONTENTS 1. DEFINITIONS AND RULES OF CONSTRUCTION ........................................................................................ 1 l. I DEFINED TERMS ............................................................................................................................................... 1 2. GRANT OF EASEMENTS TO PLANT OWNER .............................................................................................. 6 2.1 EASEMENT FOR WATER LINES AND FIRE SAFETY TANKS. . ........................................................................... 6 2.2 DRAINAGE ........................................................................................................................................................ 6 2.3 ACCESS ............................................................................................................................................................ 6 2.4 SUPPORT .............................................................. ·······•···· ................................................................................ 7 2.5 ENCROACHMENTS ............................................................................................................................................ 7 2.6 EASEMENT FOR USE OF OTHER PLANT IMPROVEMENTS ................................................................................... 7 2.7 INTENTIONALLY OMITTED ...................................................................................................................... 7 3. USE OF PROPERTY AND EASEMENTS ......................................................................................................... 7 3.1 IN GENERAL.·········· .. ·······•••··•······ ........................... , ............................................................ ······ ....................... 7 3.2 COOPERATION .................................................................................................................................................. 8 3.3 CHANGE IN GROUND SURFACE ELEVATIONS ................................................................................................... 8 3.4 LANDSCAPE MAINTENANCE ............................................................................................................................. 8 4. MAINTENANCE AND REPAIR ........................................................................................................................ 9 I 5. NEW IMPROVEMENTS OR AL TERA TIONS; RELOCATION OF EASEMENTS ........................................ 9 5.1 NEW IMPROVEMENTS OR ALTERATIONS .......................................................................................................... 9 5.2 RELOCATION OF EASEMENTS ........................................................................................................................... 9 6. REGULATIONS REGARDING MAINTENANCE AND CONSTRUCTION WORK ................................... 10 6.1 No UNREASONABLE INTERFERENCE .............................................................................................................. 10 6.2 COMPLIANCE WITH REQUIREMENTS OF LAW ................................................................................................. 10 6.3 REPAIR OF DEFECTS ....................................................................................................................................... 10 6.4 SAFETY MEASURES ........................................................................................................................................ 10 6.5 NOTICE OF WORK ........................................................................................................................................... 10 7. INSURANCE ..................................................................................................................................................... 10 7 .1 GENERAL LIABILITY INSURANCE .................................................. ·••······ ........................................................ l 0 7.2 WORKERS• COMPENSATIONINSURANCE ........................................................................................................ 11 7.3 AUTOMOBILE LIABILITY INSURANCE ............................................................................................................. 11 7.4 ADDITIONALINSURED .................................................................................................................................... 11 1 .5 PROPERTY INSURANCE ................................................................................................................................... 11 8. INDEMNIFICATION ........................................................................................................................................ 11 8.1 MUTUAL INDEMNIFICATION ........................................................................................................................... 11 8.2 MUTUAL ENVIRONMENTAL INDEMNIFICATION .............................................................................................. 11 8.3 PROCEDURES REsPECTING THIRD PARTY CLAIMS ......................................................................................... 12 8.4 GENERAL INDEMNIFICATION PROVISIONS ...................................................................................................... 13 9. CONSEQUENTIAL DAMAGES; DISCLAIMER ............................................................................................ 13 10. DESTRUCTION OF IMPROVEMENTS ..................................................................................................... 13 11. DEFAULTS/ENFORCEMENT .................................................................................................................... 14 11.1 DEFAULTS ...................................................................................................................................................... 14 11.2 GENERALREMEDIES ...................................................................................................................................... 14 11.3 FAILURE TO ENFORCE NOT A WAIVER OF RIGHTS ................. ; ..................................................................... 14 11.4 TERM; TERMINATION ..................................................................................................................................... 14 SD\372805.2 C 0 11900 11.5 FORCE MAJ EURE ..................................................................................................................... ······ ................. l4 12. ARBITRATION ............................................................................................................................................ 15 12.1 AGREEMENT TO ARBITRATE ..................•.•.........................•...................•..•.......................•...........................• 15 12.2 SUBMISSION TO ARBITRATION •........••.•.•...............................................•..............•......................•.................. 15 12.3 SELECTION OF ARBITRATION PANEL ......•.....................................................................•................................• 15 12.4 PREHEARINO DISCOVERY ............................................................................................................................... 15 12.5 ARBITRATION HEARING ................................................................................................................................. 16 12.6 AWARD .......................................................................................................................................................... 16 12.7 PROVISIONAL REMEDIES ................................................................................................................................ 16 12.8 ENTRY OF AWARD BY COURT ........................................................................................................................ 17 12.9 COSTS AND ATTORNEY'S FEES ....................................................................................................................... 17 13. RUN WITH LAND ....................................................................................................................................... 17 14. RIGHTS OF LENDERS ................................................................................................................................ 17 14.1 PRIORITY OF LIEN OF MORTGAGE .................................................................................................................. 17 14.2 NOTJCEOFDEFAULT ...................................................................................................................................... 18 14.3 CURINGDEFAULTS ......................................................................................................................................... 18 14.4 CONFLICTS ..................................................................................................................................................... 18 15. MISCELLANEOUS PROVISIONS ............................................................................................................. 18 15.1 CONSTRUCTIVE NOTICE AND ACCEPTANCE ................................................................................................... 18 15.2 NOTICES ....................................... ; ................................................................................................................ 18 I 5.3 No WAIVER ................................................................................................................................................... 19 15.4 HEADINGS ...................................................................................................................................................... 20 15.5 SEVERABILITY ................................................................................................................................................ 20 15.6 ESTOPPELS •..........................................................................................................•..•.....•................................ 20 15. 7 CUM ULA TJVE REMEDIES ................................................................................................................................ 20 15.8 ATTORNEYS' FEES AND COSTS ...................................................................................................................... 20 15.9 APPROVALS .......................................................................................... .' ......................................................... 20 15.10 AMENDMENTS ................................................................................................................................................ 20 I 5 .11 GOVERNING LA w ........................................................................................................................................... 21 15.12 ENTIRE AGREEMENT ...................................................................................................................................... 21 15.13 COUNTERPARTS ............................................................................................................................................. 21 15.14 EXHIBITS ........................................................................................................................................................ 21 IS.IS NOTHIRDPARTYRIGHTS. ····•·•···· .................................................................................................................. 21 15.16 FURTHERASSURANCES .................................................................................................................................. 21 15.17 EXCEPTIONS TO EASEMENTS .......................................................................................................................... 21 15.18 EVIDENCE OF TERMINATION OF EASEMENTS ................................................................................................. 22 ii SD\372805.2 ,.. ..... 11901 .__,. TABLE OF EXHIBITS EXHIBIT A -SURVEY MAP OF EASEMENTS EXHIBIT 2.1 -WATER LINES AND FIRE SAFETY TANKS EXHIBIT 2.2 -DRAINAGE iii SD\37280S.2 ·RECORDING REauesO BY STEWART TITLE OF CALIFORNIA RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO AND MAIL TAX STATEMENTS TO: Cabrillo Power I LLC Symphony Towers 750 B Street, Suite 2740 118'71 DOC# 2003-1411261 NOV 25, 2003 10:45 AM OFfICUt. REllRDS SAN DIEOO mtflTY REL'ORDER'S ffFICE G1IGORV J. SMITH, CllfflV REaRIIR FEES: 98.00 (E: HA San Diego, CA 92101 I\I\I\\HHll■ll\l\11\111\\11111111 _r. ......... o_. _o=--'-· _0_'2..---'\'--1 .... & ___ ,_o____________ 2003-1411281 (Above Space For Recorder's Use Only) EASEMENT AGREEMENT , / . I This EASEMENT AGREEMENT (the "Agreement") is made and entered into as of IJ/25/2003, by and between SAN DIEGO 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 I 1, 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 ofDPC 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 Initial 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 C 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 Partie~ 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.l "AAA" is defined in Section 12.1. 1.1.2 "Affiliate" means, with respect to a specified Person, any corporation, 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. 1.1.5 "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, pennits, 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 Act (42 U.S.C. § 6901 et seg.), 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 seg.), the Oil Pollution Act (33 U.S.C. § 2701 et ~ the Occupational Safety and Health Act (29 U.S.C. § 651 et seg.), the Emergency Planning and Community Righi.to-Know Act (42 U.S.C. § 11001 et seg.), the Porter-Cologne Water Quality Control Act (Cal. Wat. Code§ 13000 et seg.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seg.). 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 et seq.). 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, regulatory 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 Indemnitee, as the context may require, who benefits from any indemnification provision herein. 3 SD\372805.2 C 1.1.14 "Indemnitor" means either Plant Owner or SDG&E in compliance with the indemnification provisions hereof. l.l.1S "Initial Plant Land" is defined in Recital A. l.l .16 "ISO" means the Independent System Operator described in Article 3 of Chapter 2.3 of Part 1 of Division 1 of the California Public Utilities Code. 1.1.17 "Land" means, collectively, the Plant Land and the SDG&E Land. l.l.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.l.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 lndemnitee'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. l.1.23 "Option Agreement" is defined in Recital B. l.l.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.l.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. l .l .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. l.I.28 "Plant" means the electric energy generation plant located on the Plant Land. 4 SD\372805.2 .- 11875 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 Larid" 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 lndemnitees" 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 any 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-of-way, 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 SD\37280S.2 C 11876 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 property 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 of SDG&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 SOG&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.l Easement For Water Lines And Fire Safety Tanks. A non-exclusive easement and right of way to install, maintain, repair and replace water tanks and water Jines 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 Drainaee. 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 11877 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 of the Improvements 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. 2.5 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 Imnrovements. 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 INTENTIONALLYOMITTED. 3. USE OF PROPERTY AND EASEMENTS 3.1 In General. The Property may be used for any lawful purpose, and the easements granted herein may be utilized in any lawful manner for the purposes 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\372805.2 C 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 disturbances 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 to 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 coMection 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 procedures 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 shall not increase or decrease the ground surface elevations nor allow the ground surface elevation to be increased or decreased in any manner within the easements 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 consent of the 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'sjudgment 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\372805.2 ... ✓ 11879 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 repaired 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. s. NEW IMPROVEMENTS OR ALTERATIONS; RELOCATION OF EASEMENTS S.1 New Improvements or Alterations. Subject to the provisions of Section 6 below, 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 land 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\372805.2 C 0 11880 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) perfonned by or on behalf of Plant Owner in connection with an easement granted hereunder, or (ii) performed by or on behalf of SDG&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 the 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 of liability. 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.S 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 SD\372805.2 ,...., 11881 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 maintain 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 occurring 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 maintain casualty insurance for physical loss or damage to the SI;>G&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 lndemnitee from and against all Losses which arise out of or relate to any Third Party Claim against any Plant Owner Indemnitee arising out of SDG&E's breach of this Agreement (collectively, "Plant Owner Claims"); and Plant Owner shall indemnify, defend and hold harmless each SDG&E lndemnitee 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 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 (i) any Third Party Claim against any Plant Owner lndemnitee 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\372805.2 C 0 11882 about the soil, groundwater or surface water on SOG&E Land, or into the air from SDG&E Land, after the date of this Agreement; 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 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 lndemnitee, and the lndemnitor shall pay all expenses of, and the Indemnitee shall cooperate fully with the lndemnitor 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 Indemnitee unless the Indemnitor shall agree otherwise; provided, however, if the named parties to any such proceeding (including any imp leaded parties) include both the lndemnitee and the lndemnitor, the Indemnitor requires that the same counsel represent both the Indemnitee and the lndemnitor, 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 lndemnitor shall have failed to assume the defense of any Third Party Claim in accordance with the provisions of this section, then the lndemnitee 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 lndemnitee's counsel shall be borne by the lndemnitor, provided that the Indemnitor shall be entitled, at its expense, to participate in (but not control) such defense. The lndemnitor 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 lndemnitor 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 lndemnitor 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 lndemnitee'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\37280S.2 -11883 8.4 General Indemnification Provisions. 8.4.1 The lndemnitee 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 a1leged basis for the right of indemnity or such shorter period as may be necessary to avoid material prejudice to the lndemnitor. 8.4.2 In computing Losses, such amounts shall be computed net of any related recoveries to which the lndemnitee 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 lndemnitee or for which it is eligible, taking into account the income tax treatment of the receipt of indemnification. 8.4.3 The 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 tennination 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. 8.4.5 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 change 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 further 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 lndemnitees. 10. DESTRUCTION OF IMPROVEMENTS 13 SD\372805.2 C 0 11884 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 shalJ 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 Agreement to the contrary, in no event shall the remedies available hereunder for a breach of the provisions hereofinclude termination of this Agreement. Each Party waives any right under law, equity or otherwise, to terminate this Agreement. 11.S Force Maieure. 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 under 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 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 resume 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 manner 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 Arbitration Association (or any successor organization) (the "AAA"). Any such arbitration shall take place in San Diego, California 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 ~ybmission 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 AAA shall submit to the parties, within IO 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 "1" 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 documents, 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 C 0 11886 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 determined 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 arbitration 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 pennit 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 of the 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 of law. The award shalJ 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 11887 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 Entty of Award by Court. The arbitration panel's arbitration award shall be final. The 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. The 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 privity 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 Permittee of a Party shall acquire any rights of a Party hereunder, except to the extent such Party's rights are expressly assigned to such Permittee 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. In 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 Mortgagee or other future 17 SD\372805.2 C 0 11888 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 particular 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. JS. MISCELLANEOUS PROVISIONS lS.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 such Person acquired an interest in the Property. 1S.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 SD\372805.2 ~ If to SDG&E, addressed to: San Diego Gas & Electric Company to 1 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 11889 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 C 0 11890 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. 1S.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. 1S.S 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. 1S.6 Estoooels. 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). 1S.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. 1S.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. 1S.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. 1S.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 time of execution thereof. 20 SD\372805.2 1189:J_ 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 arbitration 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) contains 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 incorporated 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 Assurances. 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 C 0 11892 1 S.18 Evidence of Termination of Easements. Plant Owner covenants for itself, its successors and assigns that should Plant Owner discontinue use of any of the easements granted herein, then said easement shall tenninate 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. SD\37280S.2 CARRILLO POWER I LLC By:Name~-- Title: ~ I SAN DIEGO GAS & ELECTRIC COMPANY By: ----,1----4,,;z..,.~~_.___,.pq. ____ _ Name: Title: 22 STATE OF CALIFORNIA) )ss. 11893 COUNTY OF O o..i'0), ()).,~ o On ~\.,, )2.00,3 before me~ D-J>,,. c__J) 'y\-j---..,._() personally appeared "N\ IV,~\ \L;) ~ personally known to me ( o sa 1 to be the personc,Q whose nam~ is/~ subscribed to the within instrument and acknowledged to me that ..)it/she/~ executed the same in~/her/tbdr authorized capacit~) and that by ..bi(lher/~ signature()i6 on the Instrument the personOO, or the entity upon behalf of which the perso~ acted, executed the instrument. WITNESS my hand and official seal. Signature ~'t:)D... (_J (This area for official notarial seal) ST ATE OF CALIFORNIA) )ss. ICAVLA CAROL . COMM.11280016 'llff PUBLIC • COUNTY OF~) On 7/tt/PJ before me, 3/ ,A._,,,,, .I personally appeared ___ /1M=:..::..::~;:,_--=L/4~"aiL~----------- 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 · strument. r official notarial seal) SD\37280S.2 23 J. C. DEMAS ·. COMM.1123'570 .-, ARY PUBLIC • CALIFORNIA, C 0 11894 EXHIBIT A SUR VEY MAP OF EASEMENTS 24 SD\37280S.2 i ! J I I I THIS PUT WAS PREPARED BY 11£ OR UNDER lrf DIRECTION IN CONFORMANCE WITH 7H£ LAND stm~ ACT ON NOVEJIBER 2..l 1ff8 RONAll) C. PARKER lit: NOTfS: CF:N(RAI. LOCA 110N OF ALL DRAINAGE FACIUTIES AND WA 1CR F'At:1U11ES REPal1ED 1D DATE: AR£ LOCA1ED AND SHOIIH ON 711S EXHBIT SOME OF TH£ F'AaLJ11ES SHOWN ON THIS EXHIBIT HAI£ 8lEN PLOTTED PCR AS-Bllll.T DRAWINGS AND NOT PHYSICALLY LOCATED IN 1H£ F1£lJ). 8£ARINGS AND DISTANCCS ro FOLLOW F'OR PARCll.S G AND H OETAI. fF OWWAG£ FAanB NOTIUrAF •71E UNES ARE 71) MOST S'L Y CORNER R OF S 14621 .i'XHIB/7' •..4 II -.i'NCJHA SHEET t OF 1 SHa:T EAS.SJ/EHJ' Afl.N££V£HJ' -SOC&.£ 0PJ'/0.N NII. SAN DIEGO GAS & ELECTRIC DBDllT A TO l&S1DIElff AGtummft' POWER PUNT AUcnm (ENCNA) CARLSBAD I:! ,-, i _________________ -L,,L_~-===================:::r:::::r:::::::::r::::::J PARCEL I: C EXHIBIT 2.1 0 11896 WATER LINES AND FIRE SAFETY TANKS 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' 1 O" East, 656.54 feet) from the Northeast corner 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 TRUE POINT OF BEGINNING; thence South 65° 10' 27" West, 61.93 feet to a point herein designated Point "B"; thence North 21° 15' 57" West, I 16.86 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 TRUE POINT OF BEGINNING. ALSO: Those certain strips of land 6.00 feet in width, the center line of said strips are described as follows: 1. 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° 51' l O" 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. SD\3 72805 .2 Page I of 2 PARCEL 2: 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' 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 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. Page 2 of 2 SD\372805.2 C EXHIBIT2.2 DRAINAGE 0 11898 Commencing at the most Southerly corner 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 corner bears South 28° 40' 19" East, 656. 70 feet (rec. South 29~ 17' l O" 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 strips ofland 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 described; thence South 79° 34' 59" West, 61.36 feet. 1 SD\372805.2 PLEASE COMPLETE THIS INFORMATION, RECORDING REQUESTED BY: DOC# 2003-0855354 5 TE:w~ -r,11£. JUL 1B. 2003 8:00 ITTICitl EDDS AND WHEN RECORDED MAll. TO: SAN DIEID WlfTV REllRIIR'S (FfICE O\cl<s1wJ ShA,110 ~'-lf-1' os~l<'1 GlmiY ~~ITH, ~RmDR 1,\ o \ L S1 a.u:r f'J • \)J. DC: (flf ~VS: 2 \]JA~ '1~ 0 .. c.. '2 °0 31 . ·yAj:· N:n:- rt P 11111111111111111111111111111111111111111 I J.5 __________ __;L...---....Ji~c.l\J/o.c&&A..I. :Z003-08SA54 J0 : /VI> oe /&l) ,i 9195 Rec.Parm #R25 S\--t<it..'7 fur~ c,.-a«~,o ~~st p,JJ f'M~~clJ'T ~r:<A-wf (Please fill in document title(s) on this line) TH[S PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) AM 3 7 3 3 Order: 12207240 Doc: SD:2003 00B55354 Page 1 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST I I C 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. 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). di /-C>/CJ-r.3J, -o'l) SHORT FORM OF GROUND LEASE AND EASEMENT AGREEMENT THIS SHORT FORM OF GROUND LEASE ANO EASEMENT AGREEMENT (this "Short Form"), is made and entered into as of July 11, 2003 (the "Effective Date"), by and between CABRILLO POWER I, LLC, a Delaware limited llablllty company, as lessor and grantor (11Grantor"), having an address at 4600 Carlsbad Boulevard, Carlsbad, California 92008, and POSEIDON RESOURCES (CHANNELSIDE) L~C. a Delaware limited liability company, as lessee and grantee {'1Grantee"), having an address at 501 West Broadway, Suite 840, San Diego, California 92101, with reference to the following recitals: A. Granter is the owner of that certain parcel of real property located at 4600 Carlsbad Boulevard, Carlsbad, California 92008, as more particularly described on Exhibit BA" attached hereto and as generally depicted (by cross-hatching) on the map attached hereto as Exhibit "B" (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 Granter, upon and subject to all of the terms and conditions set forth in the Agreement (as defined below). B. 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 Granter certain easements for the construction and operation of the Easement 1 d:\data-wp8\dynegy\enclna\poseldon\doca\memoranda-ahort forms\ahon form of ground lease and .. semen! agmt•finar.doe 3 7 3 4 Order: 12207240 Doc: SD:2003 00855354 Page 2 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST r' 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: Granter hereby leases the Leased Premises to Grantee, and Grantee hereby leases the Leased Premises from Granter (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, Granter hereby grants to Grantee the 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, Granter (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 pump 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:ldata-wp8\dynegy\endna\poseldon\docs\memoranda-short forms\short fotm of ground lease and easement agmt,ftnal.doc 3 7 3 5 Order: 12207240 Doc: SD:2003 00855354 Page 3 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST C 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 "Electrlcal 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 "Transfonner 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 turn-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 Turn-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-w1)81,dynegy\enclna\poseldon\clocs\memoranda•short fo11T11\short fonn of ground lease and enement agmt-final.doc J 7 3 6 Order: 12207240 Doc: SD:2003 00855354 Page 4 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST I""'"" I.. of the Agreement, Grantee has an option to extend the Term for up to two (2) consecutive additional periods of ten (10) years. 4. Qther 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 Granter, 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~ 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 recordatlon 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:ldata-wp8\dynegy\enclna\p0seld0n\doca\memoranda-short forms\short fonn of ground l•ase and .aamenl agmt•linal.doc 3 7 3 7 Order: 12207240 Doc: SD:2003 00855354 Page 5 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST 0 0 IN WITNESS WHEREOF, the Parties have caused this Short Form to be duly executed as of the Effective Date. GRANTOR: GRANTEE: CABRILLO POWER I LLC, a Del Name: SZ21zy /U. /11.4/Vtc/ Title: I.ICL /t4ftgb<J;;"' POSEIDON RESOURCES (CHANNELSIDE) LLC, a Del ware limited II bility company By:.__.IIC:oC.,;:,,,,,.,~~-~~--- Name: fi...~ ~ °""'--=' Title: LJ , c_ ,L... ~>, Dllli,.;,- d:\data-wp8\clynegy\enc:lnalposeldon\docalmemoranda-sh011 forms\short form of ground lease and easement agmt-final.doc 5 3 7 3 8 Order: 12207240 Doc: SD:2003 00855354 Page 6 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST ACKNOWLEDGMENTS . STATE OF C_olt.,bpVY)l~ couNTY oF 2::0vn D l.Q,qp> ) ) ) ss. ~ o;sJ½ \ Y:: , 200 , before m , th,&! .1mde1Ji9ned, a notary public In and for said State, pers~y appeared ~::t1t!·Y...LJ1..L:..•!.!. rn~rur-M;"=-K:!S.~---=======~-____________ ,, personally known to me (QL E[2_Ved to me on the basis of 3 satisfacto!Y evidence) to be the person~ whose name~ is15Fe subscribed to thewithin 7 Instrument and acinowledged to me that he~ executed the same in his711eiAhair authorized capacity(teis), and that by hislher7their signature~on the Instrument the persor'tE&l, 3 or the entity upon behalf of which the person~acted, executed the instrument. 9 my hand and STATE OF ~ll.Jt~Y\~0-. COUNTY OF SAY\ D-) ) ) nae a nessooac- sou sec aoc. ss. said St~;;.~ :Meared _· r~~"'11!1.o.L•-~-=-..L:,...!5oCl,:ir..ol:.I..L,G~::..a,.;;.=.L....L--------========----· personally known to me roved to me on the basis of satisfactory evi~nce) to be the person~) whose name1s).. Is/ subscribe to the w1 hin Instrument ana acknowledged to me that he~/~executed the same in hlslheflt'Fieir- authorized capacity(lea), and that by hisJheriiheir signature~on the instrument the perso~ or the entity upon behalf of which the person~cted, executed the instrument. co • OFFICIAL SEA!. I CHRISTI WAYMIRE I NOTARY PUBLIC·CAUFORNIA' COMM. Ng.~~28827 -I MY~~B~~P. OE~~'%:is I • 0000 a 6 d:\data-wp8\dynegy\enclna\po$8idon\docslmemoranda-short forms\short form of ground lease and easement agmt-linal.doc Order: 12207240 Doc: SD:2003 00855354 Page 7 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST 0 0 EXHIBIT "A" LEGAL DESCRIPTION OF THE LEASED PREMISES d:ldata-wp8\dynegy\enclna\poseldon\docslmemoranda-short forms\short forn, of ground lease and easement agmt-flnal.doc 3 7 4 0 Order: 12207240 Doc: SD:2003 00855354 Page 8 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST EXBJ:BJ:T 'A' LEGAL DESCRIPTION FOR 'l'BE LEASED PREMJ:SES THAT PORTION OF LOT "H"' OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13"' WEST, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47• WEST, 54.68 FEET TO THE POXNT OP BEGXNNXNG; THENCE SOUTH 67°22 I 25R WEST, 427. 00 FEET; THENCE NORTH 22°37, 35" WEST, 320.00 FEET; THENCE NORTH 67°22'25" EAST, 427.00 FEET; THENCE SOUTH 22°37'35" EAST, 320,00' FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'A-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY 0. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 3.137 ACRES, MORE OR LESS. 7/2'/4 DATE L.S. 7019 EXPIRATION DATE 6/30/2006 T:~UR VEY\2398\Plats\Legals\ExlbA·Le:lscdPremiscs.doc July 3. 2003 JO .. 3 7 4 1 Order: 12207240 Doc: SD:2003 00855354 Page 9 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST C 0 EXHIBIT "B" MAP GENERALLY DEPICTING THE LEASED PREMISES d:\data-wp8\dynegy\enclna\poseldon\docslmemoranda-short forms\short form of ground lease and easement agmt-llnal.doc 3 7 4 2 Order: 12207240 Doc: SD:2003 00855354 Page 10 of35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST r LEGAL DESCRIPTION: A PORTION OF PARCEL 4 P£R C£RTTF1CATE: Of COIJPUANCC RECORDfD OCTOBER JO, 2001 AS DOCUllfNT NO. 2001-0789068, AND AS SHO'MI ON RECORD OF SURVEY NO. 17J50. IN THE arr OF CARLSBAD, COUNTY OF SAN DIEGO, STAT£ OF CAUFORNIA. ASSESSORS PARCEL NO: 210-010-39 BASIS OF BEARINGS: THE BASIS OF BEARINGS FOR THIS DRAMNG -----IND/CA TFS EXISTING PROPERTY UNE 0 7 P.O. C. _ IND/CA 1£S POINT OF COllll£NC81£NT ~ P .O .B. __ IND/CA 7ES POINT OF BEGINNING ,3 -f}ff_ff~ _ IND/CA TE:S THE LEAS£D PREMISES &'$~ AREA = J.137 ACRES. MORE OR LESS IS THE HORIZONTAL CONTROL BASED ON 1H£ CALIFORNIA COORDINATE SYSTEIJ ZONE 6, NAO BJ, AS DIT£RMINED LOCAll Y BY THE UN£ BETWEEN nRST ORD£R CONTROL POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271, I.£. N40"J9'21"W. OWNER: CABRIUO POWER I UC 4600 CARLSBAD BOULEVARD CARLSBAD, CAUFORNIA 92008 PHON£: (760) 268-4011 SURVEYOR OF WORK: PRO.ECTDESIGN CONSULTANTS 701 8 STREIT SUIT£ 800 SAN DIEGO, CALIFORNIA 92101 ~ £ VICINITY UAP H NO SCALE ~235-6471 GAR~7019 71::3 THE LEASED PREMISES REGISTRA 110N E:XPIR!S 6/J0/2006 APPUCANT: POSEIDON RESOURCES 501 lf'ST BROADWAY StJITf IHO SAN Dl£Ga CAUFORNIA 92101 Order: 12207240 Doc: SD:2003 00855354 PRF:PARED BY: PRO.ECTDESIGN CONSULTANTS 701 B STREET SIJITE: 800 SAN DIEGO. CALJF(RNIA 92101 Page 11 of35 EXHIBIT 118" SHEET 1 Of' 2 AP,N. 210-010-JS Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST PARCEL 3 ROS -J7350 C PARC.el 4 ROS 17360 0 P.O.B. SCAl£ ,. -400' APPLICANT: POSCIDON RESOURCES 501 IEST 8'0ADWAY SlJTE /HO SAN DI@ CAJJFORMA 92101 PARCEL 4 .ROS i7360 PREPARED BY: PARCEL 5 .ROS 17360 PRO.ECTDCSGN CONSULTANTS 70t 8 STREET SIi/TE 800 SAN Dl£CO. CAUFORNIA 92101 T•\SUl!Vtf\2399\Pl•t•\Pl•tlll•Ln .. dPrrMlsesShtl).!.dwg 07/0J/2003 09,07,59 AM ~DT Order: 12207240 Doc: SD:2003 00855354 Page 12 of35 ~oa· PARCEL 7 ROS 17360 \ \ I I // I I I I I ) ,,,., _____ _ THE LEASED PREMISES EXHIBIT ''5,. SHEET 2 CF 2 A.P.N. 210-010-39 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST EXHIBIT "C" LEGAL DESCRIPTION OF THE INTAKE/DISCHARGE EASEMENT AREA d:\data-wp8\dynegy\enclna\poseldon\docslmemoranda-short forms\short form of ground lease and easement agmt-flnal.doc 3 7 4 5 Order: 12207240 Doc: SD:2003 00855354 Page 13 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST C 0 EXHIBIT 'C' LEGAL DESCRIPTION FOR :INTAKE/DISCHARGE EASEMEN'l AREA THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL.4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT- OF.-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13" WEST, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOOTH 67°22'25" WEST, 248.14 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 23°31'11" EAST, 266.03 FEET; THENCE SOUTH 35°40'18" EAST, 664.53 FEET; THENCE SOUTH 16°11'01" WEST, 361.48 FEET; THENCE SOOTH 72°52'19" WEST, 290.09 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 252.00 FEET; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 40°53'52", 179. 88 FEET TO THE BEGINNING OF REVERSE CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 78.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 58°01'33" EAST; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35°11'26•, 47.91 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67°09 '52" WEST, 118. 89 FEET; THENCE SOUTH 6 4 °2 0 ' 5 6 " WEST, 2 5 6 • 5 6 FEET TO A POINT ON THE EASTERLY LINE OF CARLSBAD BOULEVARD (FORMERLY XI-SD-23), BEING l O O • 00 FEET WIDE AS SHOWN ON RECORD OF SORVEY NO. l 7 3 5 0, SAID POINT BEING A POINT ON A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 5216.55 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 62°54' 16" WEST; THENCE NORTHERLY, ALONG SAID EASTERLY LINE AND THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 07°54' 17", 719. 71 FEET; THENCE TANGENT TO SAID CURVE, ALONG SAID EASTERLY LINE NORTH 19°11'27" WEST, 15.63 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4050.00 FEET; THENCE NORTHERLY, ALONG SAID EASTERLY LINE AND THE ARC OF SAID T:\SURVEY\2398\Pl1111i\LCpls\ExibC•l111t1keDischarJe.doc: July J, 2003 JO .. -----•N•--•• --•-..... __ 3 7 4 6 Order: 12207240 Doc: SD:2003 00855354 Page 14 of 35 Created By: Ruth Pido Printed: 3115/2016 6:58:57 AM PST CURVE, THROUGH A CENTRAL ANGLE OF 0 1 °15 ' S 5" , 8 9 . 4 3 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 67°31'55" EAST, 52.67 FEET; THENCE NORTH 22°28'05" WEST, 181.42 FEET; THENCE NORTH 67°41'34" EAST, 128.22 FEET; THENCE SOUTH 22°18'26" EAST, 40.00 FEET; THENCE SOUTH 67°41'34" WEST, 88.11 FEET; THENCE SOUTH 22°28'0S" EAST, 463.52 FEET TO A POINT ON A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 110.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 5 3 °3 9 ' 0 6" WEST; THENCE SOUTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 71°16'26", 136.84 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 34°55 '31" EAST, 152. 63 FEET; THENCE SOUTH 29°45'18" EAST, 149,21 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE SOUTHERLY AND SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 85°53'45", 67.46 FEET; THENCE TANGENT TO SAID CURVE, NORTH 64°20 I 56" EAST, 117. 37 FEET; THENCE NORTH 67°09 I 52" EAST, 119,88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY ANO HAVING A RADIUS OF 38.00 FEET; THENCE EASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35°11'26", 23. 34 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 292.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 58°01' 33" WEST; THENCE NORTHEASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 40°53 '52", 208.43 FEET; THENCE TANGENT TO SAID CURVE, NORTH 72°52'19" EAST, 268.52 FEET; THENCE NORTH 16°11'01" EAST, 320.45 FEET; THENCE NORTH 35°40'18" WEST, 649.34 FEET; THENCE NORTH 23°31'11" WEST, 270.91 FEET; THENCE NORTH 67°22'25" EAST, 40.00 FEET TO THE POINT OF BEGJ:HHXHG. ATTACHED HERETO IS A PLAT LABELED EXHIBIT "C-1" AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY 0. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 3,803 ACRES, MORE OR LESS. zh4~ DATE L.S. 7019 EXPIRATION DATE 6/30/2006 T!\SURVEY\2398\Plats\Lcgals\ExibC-lnt:ikcDlschargc.doc July 3, 2003 JO .. 3 7 4 7 Order: 12207240 Doc: SD:2003 00855354 Page 15 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST C 0 EXHIBIT "D" LEGAL DESCRIPTION OF THE PRODUCT WATER PIPELINE EASEMENT AREA d:\data-wp8\dynegy\enclna\poseidon\docs\memoranda-short formslshort form of ground lease and easement agmt-ftnal.doc 3 7 4 8 Order: 12207240 Doc: SD:2003 00855354 Page 16 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST EXH:J:BJ:T 'D' LEGAL DESCRIPTXON FOR PRODUCT WATER PXPEL:INE EASEMENT AREA THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 82 3 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL.4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13" WEST, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET TO THE POINT OF BEGINNING; THENCE NORTH 22°37'35"WEST, 320.00 FEET; THENCE NORTH 67°22'25" EAST, 20.00 FEET; THENCE SOUTH 22°37'35"EAST, 816.43 FEET; THENCE SOUTH 15°31'18" EAST, 379.90 FEET; THENCE SOUTH 29°58'25" EAST, 433.54 FEET; THENCE SOUTH 22°32'58" EAST, 191.28 FEET; THENCE SOUTH 09°39'03" EAST, 50.72 FEET; THENCE SOUTH 19°02'22" EAST, 157.35 FEET TO A POINT ON THE SOUTHERLY LI~ OF SAID PARCEL 4; THENCE ALONG SAID SOUTHERLY LINE NORTH 82°40'44" WEST, 27.90 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 19°02 1 22" WEST, 147.02 FEET; THENCE NORTH 09°39'03" WEST, 49.95 FEET; THENCE NORTH 22°32'58" WEST, 186.83 FEET; THENCE NORTH 29°58'25" WEST, 434.98 FEET; THENCE NORTH 15°31'44" WEST, 381.79 FEET; THENCE NORTH 22°37'35" WEST, 174.35 FEET; THENCE NORTH 20°08'20" WEST, 115.20 FEET; THENCE NORTH 22°37'35" WEST, 205.27 FEET TO THE POINT OF BEGXNNXNG. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'D-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY O. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. T:\SURVEY\2398\Pl:lts\Leg;ils\ExibO-ProductWaterPipeline.doc July 3. 2003 JG .. 3 7 4 9 Order: 12207240 Doc: SD:2003 00855354 Page 17 of35 Created By: Ruth Pido Printed: 3/1512016 6:58:57 AM PST 0 0 SAID PARCEL OF LAND CONTAINS 1.094 ACRES, MORE OR LESS. L.S. 7019 EXPIRATION DATE 6/30/2006 T:\SUR.VBY'.239S\Plats\Legals\ElibD•ProductWaterPipeline,doc July 3, 2003 10 .. Order: 12207240 Doc: SD:2003 00855354 Page 18 of35 3 7 5 .Q Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST EXHIBIT "E" LEGAL DESCRIPTION OF THE ELECTRICAL LINE EASEMENT AREAS d:\data-wp8\dynegy\enclna\poseldon\docs\memoranda-short fom1S\short form of ground lease and easement agmt-flnal.doc 3 7 5 1 Order: 12207240 Doc: SD:2003 00855354 Page 19 of35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST C EDIBIT 'E' LEGAL DESCR:IPT:ION FOR 0 ELEC'l'R:ICAL LINE EASEMENT AREAS THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL·4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13" WEST, 1763,84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 248.14 TO THE PODrr OF BEGINN:IHG; THENCE SOUTH 23°31'11" WEST, 266.03 FEET; THENCE SOUTH 35°40'18" EAST, 664.53 FEET; THENCE SOUTH 16°11'01" WEST, 361.48 FEET; THENCE SOUTH 72°52'19" WEST, 290.09 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 252.00 FEET; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 40°53'52", 179. 88 FEET TO THE BEGINNING OF REVERSE CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 78.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 58°01 ' 3 3" EAST; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35°11'26", 47.91 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67°09'52" WEST, 118.89 FEET; THENCE SOUTH 64°20'56" WEST, 256.56 FEET TO A POINT ON THE EASTERLY LINE OF CARLSBAD BOULEVARD (FORMERLY XI-SD-23), BEING 100. 00 FEET WIDE AS SHOWN ON RECORD OF SURVEY NO. 17350, SAID POINT BEING A POINT ON A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 5216.55 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 62°54' 16" WEST; THENCE NORTHERLY, ALONG SAID EASTERLY LINE AND THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 02°19' 06 M, 211. 09 FEET: THENCE LEAVING SAID EASTERLY LINE NORTH 6 0°14 ' 4 2" EAST, 86.85 FEET; THENCE SOUTH 29°45'18" EAST, 135.86 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHERLY AND HAVING A RADIUS OF 45. 00 FEET; THENCE SOUTHERLY AND SOUTHEASTERLY, ALONG T:\SURVEY\2398\Plats\Lci:als\ExibE-Electric;ill.ines.doc July 3, 2003 JG .. ·--------·-·-·--- 3 7 5 2 Order: 12207240 Doc: SD:2003 00855354 Page 20 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST JI'-, THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 85°53'45", 67.46 FEET; THENCE TANGENT TO SAID CURVE, NORTH 64°20'56" EAST, 117.37 FEET; THENCE NORTH 67°09'52" EAST, 119.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 38.00 FEET; THENCE EASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35°11' 26", 23. 34 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIOS OF 292.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 58°01' 33" WEST; THENCE NORTHEASTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 40°53' 52 •, 208. 43 FEET; THENCE TANGENT TO SAID CURVE, NORTH 72°52'19" EAST, 268.52 FEET; THENCE NORTH 16°11' 01" J EAST, 234.48 FEET; THENCE SOUTH 67°30'13• WEST, 478.88 FEET; THENCE 7 NORTH 22°59'30• WEST, 83.39 FEET; THENCE NORTH 67°00'30" EAST, 5 20.00 FEET; THENCE SOUTH 22°59'30• EAST, 63.56 FEET; THENCE NORTH 3 67°30'13" EAST, 475.07 FEET; THENCE NORTH 16°11'01" EAST, 60.35 FEET; THENCE NORTH 35°40'18" WEST, 649.34 FEET; THENCE NORTH 23°31'11" WEST, 23.41 FEET; THENCE SOUTH 70°03'19" WEST, 97.14 FEET; THENCE SOUTH 74°50'20• WEST; 184.47 FEET; THENCE SOUTH 68°24'19" WEST, 80.60 FEET; THENCE NORTH 23°31'11" WEST, 20.01 FEET; THENCE NORTH 68°24'19" EAST, 82.40 FEET; THENCE NORTH 74°50'20" EAST, 184.75 FEET; THENCE NORTH 70°03'19" EAST, 95.06 FEET; THENCE NORTH 23°31'11" WEST, 227.46 FEET; THENCE NORTH 67°22'25" EAST, 40.00 FEET TO THE POXN'r OF BEGXmr.tHG. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'E-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY O. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 2.778 ACRES, MORE OR LESS. ~~ L.S. 7019 EXPIRATION DATE 6/30/2006 T:~URVEY\2398\Plats\Leg:ils\ExibE-ElcctricalLincs.doc July 3, 2003 JO .. Order: 12207240 Doc: SD:2003 00855354 Page 21 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST C 0 EXHIBIT"F" LEGAL DESCRIPTION OF THE TRANSFORMER EASEMENT AREAS d;\data-wpll\dynegy\encina\poseidon\docs\memoranda-short forms\short form of ground lease and easement agmt-flnal,doc 3 7 5 4 Order: 12207240 Doc: SD:2003 00855354. Page 22 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:57 AM PST -------· .. -------------- EXHIBIT 'F' LEGAL DESCRIPTION FOR TRANSFORMER EASEMENT AREAS NORTH TRANSFORMER EASEMENT THAT PORTION OF LOT "H• OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 82 3 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF :PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13• WEST, 1763. 84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47• WEST, 54.68 FEET; THENCE SOUTH 67°22'25• WEST, 248.14; THENCE SOUTH 23°31'11• EAST, 253.41 FEET; THENCE SOUTH 66°28'49• WEST, 452.02 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 66°28'49" WEST, 20.00 FEET; THENCE NORTH 23°31'11" WEST, 83.00 FEET; THENCE NORTH 66°28'49" EAST, 32.66 FEET; THENCE SOUTH 85°34'35" EAST, 44.53 FEET; THENCE SOUTH 23°31'11• EAST, 56.13 FEET; THENCE SOUTH 66°28'49" WEST, 52.00 FEET; THENCE SOUTH 23°31'11" EAST, 6.00 FEET TO THE POJNT OF BEG:CNN:CNG. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'F-1' AND BY THIS REFERENCE MADE A :PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY O. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 0.121 ACRES, MORE OR LESS. T:~URVEY\2398\Plats\Lcpls\ExibF•Tr:msfarmer.doc July 3, 2003 JG .. 3 7 5 5 Order: 12207240 Doc: SD:2003 00855354 Page 23 of 35 Created By: Ruth Pldo Printed: 3/15/2016 6:58:57 AM PST C 0 SOUTH TRANSFORMER EASEMENT THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100,00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13" WEST, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25n WEST, 288.14 FEET; THENCE SOUTH 23°31'11" WEST, 270.91 FEET; THENCE SOUTH 35°40'18" EAST, 649.34 FEET; THENCE SOUTH 16°11'01" WEST, 85.97 FEET; THENCE SOUTH 67°30'13" WEST, 478.BB FEET; THENCE NORTH 22°59'30" WEST, 83,39 FEET TO THE POI.NT OF BEGINNING; THENCE SOUTH 67°00 I 30" WEST' 18. 53 FEET; THENCE NORTH 22°59 I 30 II WEST, 75. 00 FEET; THENCE NORTH 67°00'30" EAST, 75.00 FEET; THENCE SOUTH 22°59'30" EAST, 75.00 FEET; THENCE SOUTH 67°00 1 30" WEST, 56.47 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'F-2' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY O. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTA~NS 0.129 ACRES, MORE OR LESS. 7,t?/4~ DATE L.S. 7019 EXPIRATION DATE 6/30/2006 T:\SURVEY'2398\Pla11\Lcpl1\Exibf•Tran1formcr.doc July l, 2003 JO .. 3 7 5 6 Order: 12207240 Doc: SD:2003 00855354 Page 24 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST EXHIBIT "G" LEGAL DESCRIPTION Ot= THE SUBSTATION EASEMENT AREA d:\data-wp8\dynegy\enclna\poseldon\docs\memoranda-short forms\!lhort form of ground lease and easement agmt-flnal.doc 3 7 5 7 Order: 12207240 Doc: SD:2003 00855354 Page 25 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST 0 EXHIBIT 'G' LEGAL DESCRIPTION FOR SUBSTATION EASEMENT AREA 0 THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13" WEST, 1763 .84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47" WEST, 54.68 FEET; THENCE SOUTH 67°22'25" WEST, 248.14; THENCE SOUTH 23°31'11" EAST, 153.41 FEET TO THE POINT OF BEGINNING; THENCE NORTH 66°28'49" EAST, 75.00 FEET; THENCE SOtnH 23°31'11" EAST, 100.00 FEET; THENCE SOUTH 66°28'49" WEST, 75.00 FEET; THENCE NOR'l'H 23°31'11" WEST, 100.00 FEET TO THE PO:INT OF BEGl:NN:ING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'G-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY O. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UE>ON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 0.172 ACRES, MORE OR LESS. ~ L.S. 7019 EXPIRATION DATE 6/30/2006 T:\SURVEY\2398\Pla1s\Lepls\Ex.ibO•S11bS1.:11ion.doc July 3, 2003 JO .. 3 7 5 8 Order: 12207240 Doc: SD:2003 00B55354 Page 26 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST EXHIBIT "H" LEGAL DESCRIPTION OF THE SEWER/DOMESTIC WATER EASEMENT AREA d:ldata-wp81,dynegylenclria~tdon\docs\mem0randa-short forms\short form of ground lease and easement agmt-linat.doc 3 7 5 9 Order: 12207240 Doc: SD:2003 00855354 Page 27 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:SBAM PST C EXHIBIT 'B' LEGAL DBSCRZPTZON FOR 0 SEWER/DOMESTIC WATER EASEMENT AREA THAT PORTION OF LOT "H• OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22°30'13# WEST, 1763.84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47• WEST, 54.68 FEET; THENCE SOUTH 67°22'25• WEST, 11.67 FEET TO THE POINT OF BEGINNXNG; THENCE SOUTH 22°21'34• EAST, 62.54 FEET TO A POINT ON THE NORTHERLY LINE OF THAT CERTAIN "PIPE LINE LICENSE" DATED MARCH l, 1971, BY AND BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND SAN DIEGO GAS AND ELECTRIC COMPANY, WHICH LICENSE GRANTS THE RIGHT TO CONSTRUCT AND MAINTAIN A TUNNEL, PIPE AND PEDESTRIAN WALKWAY AND VARIOUS SIZES OF CARRIER PIPE; THENCE ALONG SAID NORTHERLY LINE NORTH 67°38' 26 11 EAST, 195 .12 FEET; THENCE LEAVING SAID NORTHERLY LINE NORTH 22°21'34• WEST, 18.01 FEET; THENCE NORTH 67°38'26" EAST, 35.00 FEET; THENCE SOUTH 22°21'34" EAST, 37.01 FEET; THENCE SOUTH 67°38'26" WEST, 15.00 FEET; THENCE SOUTH 22°21'34" EAST, 32.16 FEET; THENCE SOUTH 67°38 1 26• WEST, 40.78 FEET; THENCE NORTH 22°21'34" WEST, 20.00 FEET; THENCE NORTH 67°38'26" EAST, 20.78 FEET; THENCE NORTH 2 2 °21 ' 3 4 • WEST, 2 2 . 16 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID "PIPE LINE LICENSE"; THENCE ALONG SAID SOUTHERLY LINE SOUTH 67°3 8 ' 2 6 11 WEST, 19 5. 12 FEET; THENCE SOUTH 22°21'34" EAST, 6.55 FEET; THENCE SOUTH 67°38'26" WEST, 20.00 FEET; THENCE NORTH 22°21 1 34 11 WEST, 78.00 FEET; THENCE NORTH 67°22'25" EAST, 20.00 FEET TO THE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'H-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPOTE GROUND DISTANCES, DIVIDE GRID T:ISURVEY\2398\Plats\Leg:ils\EJtibH..Sewcr/DomeslicWatcr.doc July 3, 2003 JG .. ------------··--·· ··-. 3 7 6 0 Order: 12207240 Doc: SD:2003 00855354 Page 28 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST DISTANCES BY 0.999963440, ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 0.130 ACRES, MORE OR LESS. ~ L.S, 7019 EXPIRATION DATE DATE 6/30/2006 T:\SURVEY\2398\Pbts\Legals\ExibH-Scwer/DomesticWatcr.doc July 3, 2003 JO .. 3 7 6 1 Order: 12207240 Doc: SD:2003 00855354 Page 29 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST C 0 EXHIBIT "I" MAP GENERALLY DEPICTING THE INGRESS/EGRESS EASEMENT AREAS d:\data-wp8\dynegy\encina\poseldon\docs\memoranda-short forms\short form of ground lease and easement agmt-flnal.doc Order: 12207240 Doc: SD:2003 00855354 Page 30 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST 3 7 6 2 1111 I !ii nm Uil \ I I ~ ··-. Order: 12207240 Doc: SD:2003 00855354 • I . , •~: .•.• .. ~•.'.,·:_,~~:,,.,,:,,Ji ~ IO,o. . . . l Page 31 of 35 '\ ! ; ! ! ,j, '\, L ,, . I f { I •" ,, ., ,, .I ·-· ,, ___ .,_, _________ . ·-. ~ . ., 3 7 6 3 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST C 0 . --· -·--· ----·------------ EXHIBIT 11J" LEGAL DESCRIPTION OF THE ACCESS AND TURN•AROUND EASEMENT AREA d:\data-wp8\dynegy,enc;ina\poseidon',docs\memoranda-ahort tormai.viort fonn of ground leaH and easement agmt-final.doc: 3 7 6 4 Order: 12207240 Doc: SD:2003 00855354 Page 32 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST ACCESS EASEMENT ---------· --------·-·--· --·· .... -------- EXHIBI'l' 'J' LEGAL DESCRIPTION FOR ACCESS AND 'l'OlUfAROUND EASEMENT AREA THAT PORTION OF LOT "H• OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO BEING A POINT ON THE WESTERLY LINE OF THE 100,00 FOOT WIDE RIGHT- OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, A1,SO BEING THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE AI.,ONG SAID WESTERLY LINE, NORTH 22°30'13• WEST, 17 63 • 84 FEET; THENCE LEAVING SAID WESTERLY LINE AT RIGHT ANGLES, SOUTH 67°29'47• WEST, 54.68 FEET TO THE POINT OF BEGINNDlG; THENCE NORTH 22°37' 35 • WEST, 891-02 FEET TO A POINT HEREINAFTER REFERRED TO }.S POINT 'A'; THENCE NORTH 67°22'25" EAST, 20.00 FEET; THENCE SOUTH 22°37'35•EAST, 1387.45 FEET; THENCE SOUTH 15°31'18" EAST, 379.90 FEET; THENCE SOUTH 29°58'25" EAST, 433.54 FEET; THENCE SOUTH 22°32'58· EAST, 191-28 FEET; THENCE SOUTH 09°39'03" EAST, 50.72 FEET; THENCE SOUTH 19°02'22" EAST, 157.35 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 4; THENCE ALONG SAID SOUTHERLY LINE NORTH 82°40'44• WEST, 27.90 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 19°02 ' 2 2 • WEST, 14 7 • 0 2 FEET; THENCE NORTH 09°39'03" WEST, 49.95 FEET; THENCE NORTH 22°32'58" WEST, 186-83 FEET; THENCE NORTH 29°58'25" WEST, 434.98 FEET; THENCE NORTH 15°31'44" WEST, 381.79 FEET; THENCE NORTH 22°37'35" WEST, 174.35 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERI.,Y AND HAVING A RADIUS OF 45.00 FEET; THENCE NORTHERLY, NORTHWESTERLY AND WESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 90°53 '36", 71.39 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 66°28'49" WEST, 675.85 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 70. 00 FEET; THENCE NORTHWESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 81°26' 17", 99. SO FEET; THENCE TANGENT TO SAID CURVE, NORTH 32°04'53" WEST, 93.96 FEET TO THE BEGINNING OF A TANGENT CURVE, T:\SURVEY\2398\PlalS\Leg:ils\ExlbJ-AcccssTumaround.doc July 3. 2003 JO .• 3 7 6 5 Order: 12207240 Doc: SD:2003 00855354 Page 33 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST C 0 CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 45. 00 FEET; THENCE NORTHWESTERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10°50' 13", 8. 51 FEET; THENCE TANGENT TO SAID CURVE, NORTH 42°55'06" WEST, 37,86 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 52.50 FEET; THENCE ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 69°07'13", 63,33 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67°57'41" WEST, 325.78 FEET TO A POINT ON THE EASTERLY LINE OF CARLSBAD BOULEVARD (FORMERLY XI-SD-23), BEING 100.00 FEET WIDE AS SHOWN ON RECORD OF SURVEY NO. 17350; THENCE ALONG SAID EASTERLY LINE NORTH 24°07'36" WEST, 25.02 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 67°57'41" EAST, 326. 69 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 77.50 FEET; THENCE SOUTHEASTERLY, ALONG THE ARC or SAID CURVE, THROUGH A CENTRAL ANGLE OF 69°07'13", 9 3 . 49 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 42°5 5' 06" EAST, 40.23 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 45. 00 FEET; THENCE SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 10°50'13", 8.51 FEET; THENCE SOUTH 32°04'53" EAST, 96.34 FEET TO THE BEGINNING OF A TANGENT. CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 81 °26' 18", 63. 96 FEET; THENCE TANGENT TO SAID CURVE, NORTH 66°28'49" EAST, 682 .64 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 45.00 FEET; THENCE NORTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 89°06'24", 69.98 FEET; THENCE TANGENT TO SAID CURVE, NORTH 22°37'35• WEST, 205.27 FEET TO THE POXN'l' OP BEGXNNXNG. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'J-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY O. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 2.153 ACRES, MORE OR LESS. TURNAROUND EASEMENT 'I'HAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF T:ISURVEY\2398\Pl:11s\Lcg:ils\fx.ibJ-AccessTumaround.doc: July 3, 2003 JO .. 3 7 6 6 j( Order: 12207240 Doc: SD:2003 00855354 Page 34 of 35 Created By: Ruth Pldo Printed: 3/15/2016 6:58:58 AM PST ---· ------ COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- 0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNI:NG AT THE AFOREMENTIONED POI:N'l' 'A', SAID POINT BEING THE BEGINNING OF A CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 80.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 67°22'25• EAST; THENCE NORTHWESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 82°49' 09", 115. 64 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 15°26'44" WEST; THENCE WESTERLY, NORTHERLY, EASTERLY AND SOUTHERLY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 262°49'09", 366.96 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 22°37'35" EAST, 158.75 FEET; THENCE SOUTH 67~22'25• WEST, 20.00 FEET TO THE POINT OF BEGI:NNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'J-1' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY O. 999963440. ALL BEARINGS SHOWN HEREON ARE GRID BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- 83, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 0.559 ACRES, MORE OR LESS. ~ L.S. 7019 EXPIRATION DATE 6/30/2006 T:\SURVEY\2398\Pbts\Legnls\ExibJ-AccessTumaround.doc July 3, 2003 JO .. Order: 12207240 Doc: S0:2003 00855354 Page 35 of 35 Created By: Ruth Pido Printed: 3/15/2016 6:58:58 AM PST ~ FIDELITY NATIONAL TITLE GROUP (~)··· FNTG Western Region Energy Services Chicago Title• Commonwealth• Fidelity National Title• Ticor Title Fidelity National Title Company 4210 Riverwalk Parkway, Suite 200 Riverside, CA 92505 Phone: (951) 710-5912 • Fax: Issuing Policies of Fidelity National Title Insurance Company Title Officer: Mitch LaRiva Order No.: 997 -30056240-ML6 Escrow Officer: Major Accounts OAC TO: Howes, Weiler, Landry Planning and Engineering, 2888 Loker Ave East, Suite 217 Carlsbad, CA 92010 ATTN: Mel Landy, PE YOUR REFERENCE: Cabrillo Power 1 PROPERTY ADDRESS: Carlsbad Blvd, Carlsbad, CA PRELIMINARY REPORT In response to the application for a policy of title insurance referenced herein, Fidelity National Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a policy or policies of title insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an exception herein or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations or Conditions of said policy forms. The printed Exceptions and Exclusions from the coverage and Limitations on Covered Risks of said policy or policies are set forth in Attachment One. The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than that set forth in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. Limitations on Covered Risks applicable to the CLTA and ALTA Homeowners Policies of Title Insurance which establish a Deductible Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Attachment One. Copies of the policy forms should be read. They are available from the office which issued this report. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. The policy(s) of title insurance to be issued hereunder will be policy(s) of Fidelity National Title Insurance Company, a Florida Corporation. Please read the exceptions shown or referred to herein and the exceptions and exclusions set forth in Attachment One of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects and encumbrances affecting title to the land. Countersigned by: Cl Authorized Signature CLTA Preliminary Report Form -Modified (11/17/06) Page 1 11"""" IC. FIDELITY NATIONAL TITLE GROUP (lfi; A • FNTG Western Region .. • ,.. • • Energy Services Chicago Title• Commonwealth• Fidelity NationalTitle • Ticor Title Fidelity National Title Company 4210 Riverwalk Parkway, Suite 200 Riverside, CA 92505 Phone: (951) 710-5912 • Fax: PRELIMINARY REPORT EFFECTIVE DATE: October 23, 2020 at 7:30 a.m. ORDER NO.: 997-30056240-ML6 The form of policy or policies of title insurance contemplated by this report is: 1. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS: FEE 2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN: CABRILLO POWER I LLC, a Delaware limited liability company 3. THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS: See Exhibit A attached hereto and made a part hereof. CLTA Preliminary Report Form -Modified (11/17/06) Page 3 C PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXHIBIT A LEGAL DESCRIPTION 0 Fidelity National Title Company Order No.: 997-30056240-MLS THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED AREA OF CARLSBAD IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, , DEFINED AS PARCEL 4 IN THAT CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS INSTRUMENT NO. 2001-0789068 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE EASTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-OF- WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD WITH THE NORTHERLY LINE OF CANNON ROAD (60.00 FEET WIDE); THENCE ALONG SAID EASTERLY LINE NORTH 22°30'13" WEST, 1564.78 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID EASTERLY LINE NORTH 22°30'13" WEST, 1990.35 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 1005.37 FEET, A RADIAL TO SAID BEGINNING BEARS SOUTH 85°54'14" EAST; THENCE NORTHEASTERLY 36.76.FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 02°05'42"; THENCE NON-TANGENT TO SAID CURVE NORTH 22°30'13" WEST, 302.87 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 61°25'37" EAST, 14.19 FEET; THENCE NORTH 30°30'37" EAST, 34.90 FEET; THENCE SOUTH 40°47'23" EAST, 63.50 FEET; THENCE SOUTH 69°10'23" EAST, 38.00 FEET; THENCE NORTH 79°19'37" EAST, 285.00 FEET; THENCE NORTH 88°07'37" EAST, 333.14 FEET; THENCE NORTH 81°53'37" EAST, 13.68 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF CALIFORNIA STATE HIGHWAY XI-SD-2B (1-5); THENCE ALONG SAID RIGHT-OF-WAY LINE SOUTH 17°57'05" EAST, 204.93 FEET; THENCE SOUTH 12°34'11"EAST, 424.72 FEET; THENCE SOUTH 22°07'51" EAST, 239.68 FEET; THENCE SOUTH 22°30'37" EAST, 1210.91 FEET; THENCE LEAVING SAID RIGHT-OF-WAY LINE SOUTH 67°37'25" WEST, 492.66 FEET; THENCE SOUTH 62°25'13" WEST, 126.26 FEET TO THE TRUE POINT OF BEGINNING. TOGETHER WITH THAT PORTION OF SAID LOTH DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF RECORD OF SURVEY NO. 14621, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 14, 1994 AS FILE NO. 1994-500086, SAID CORNER BEING ON THE WESTERLY LINE OF THE RIGHT-OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG SAID WESTERLY LINE AND EASTERLY LINE OF SAID RECORD OF SURVEY NO. 14621 SOUTH 28°40'19" EAST, 656.70 FEET TO THE MOST SOUTHERLY CORNER OF SAID RECORD OF SURVEY NO. 14621; THENCE CONTINUING SOUTH 28°40'19" EAST, 275.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH 56°25'30" WEST, 61.30 FEET; THENCE SOUTH 04°59'18" WEST, 27.61 FEET; THENCE SOUTH 39°37'42" EAST, 61.38 FEET; THENCE SOUTH 77°21 '22" EAST, 49.55 FEET; THENCE SOUTH 26°45'23" EAST, 232.92 FEET; THENCE SOUTH 17°52'19" EAST, 115.92 FEET; THENCE SOUTH 02°16'37" EAST, 55.06 FEET; THENCE SOUTH 24°00'58" WEST, 44.47 FEET; THENCE SOUTH 40°45'14" WEST, 126.60 FEET; THENCE SOUTH 29°41'50" WEST, 83.42 FEET; THENCE SOUTH 27°27'35" WEST, 90.04 FEET; THENCE SOUTH 35°18'30" WEST, 212.59 FEET; THENCE SOUTH 19°22'01" EAST, 108.34 FEET; THENCE SOUTH 30°56'56" EAST, 304.06 FEET; THENCE SOUTH 14°30'21" WEST, 175.27 FEET; THENCE SOUTH 00°09'57" EAST, 123.11 FEET; THENCE SOUTH 26°53'37" EAST, 119.99 FEET; THENCE SOUTH 34°46'51" WEST, 23.60 FEET; THENCE NORTH 61°27'21" WEST, 142.77 FEET; THENCE NORTH 22°47'32" WEST, 47.01 FEET; THENCE SOUTH 67°12'28" WEST, 16.03 FEET; THENCE SOUTH 22°47'32" EAST, 22.23 FEET; THENCE SOUTH 58°37'31" WEST, 97.99 FEET; THENCE SOUTH 41°35'28" WEST, 110.44 FEET; THENCE NORTH 74°44'52" WEST, 164.81 FEET; THENCE NORTH 05°57'51" WEST, 202.95 FEET; THENCE NORTH 30°14'20" WEST, 64.23 FEET; THENCE NORTH 64°31'22" WEST, 293.59 FEET TO THE EASTERLY LINE OF THE 100.00 FOOT WIDE CARLSBAD BOULEVARD; THENCE ALONG SAID EASTERLY LINE OF CARLSBAD BOULEVARD CL TA Preliminary Report Form -Modified (11/17/06) Page4 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXHIBIT A (Continued) Fidelity National Title Company Order No.: 997-30056240-ML6 SOUTH 24°07'36" EAST, 913.18 FEET TO TRUE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 4050.00 FEET; THENCE SOUTHEASTERLY 348.89 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04°56'09"; THENCE SOUTH 19° 11 '27" EAST, 15.63 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 5216.55 FEET; THENCE SOUTHEASTERLY 900.29 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 09°53'18"; THENCE LEAVING SAID EASTERLY LINE OF CARLSBAD BOULEVARD NORTH 60°43'42" EAST, 103.71 FEET; THENCE NORTH 71°53'50" EAST, 49.05 FEET; THENCE NORTH 88°29'46" EAST, 149.63 FEET; THENCE NORTH 77°06'32" EAST, 80.00 FEET; THENCE NORTH 68°28'15" EAST, 121.97 FEET; THENCE NORTH 63°21'24" EAST, 220.51 FEET; THENCE NORTH 67°56'35" EAST, 167.57 FEET; THENCE NORTH 76°27'03" EAST, 60.33 FEET; THENCE SOUTH 77°37'06" EAST, 172.85 FEET; THENCE SOUTH 60°55'24" EAST, 66.30 FEET; THENCE SOUTH 45°30'57" EAST, 47.42 FEET; THENCE SOUTH 82°40'44" EAST, 84.31 FEET; THENCE SOUTH 44°29'52" EAST, 52.55 FEET TO SAID WESTERLY RIGHT-OF-WAY LINE OF SAID ATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG SAID WESTERLY LINE NORTH 22°30'13"WEST, 2664.53 FEET; THENCE NORTH 28°40'19" WEST, 835.14 FEET TO THE TRUE POINT OF BEGINNING. APN(s):210-010-47 & 210-010-48 CLTA Preliminary Report Form -Modified (11/17/06) Page 5 0 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 0 EXCEPTIONS Fidelity National Title Company Order No.: 997-30056240-MLS AT THE DATE HEREOF, ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS: A. Property taxes, including any personal property taxes and any assessments collected with taxes, are as follows: Tax Identification No.: Fiscal Year: 1st Installment: 2nd Installment: Code Area: 210-010-47-00 2020-2021 No Taxes Due No Taxes Due 09170 B. Property taxes, including any personal property taxes and any assessments collected with taxes, are as follows: Tax Identification No.: Fiscal Year: 1st Installment: Penalty: 2nd Installment: Penalty and Cost: Exemption: Code Area: 21 0-01 0-48-00 2020-2021 $2,336,635.09, Unpaid (Delinquent after December 10) $233,663.50 $2,336,635.09, Unpaid (Delinquent after April 10) $233,673.50 $0.00 09170 C. The lien of supplemental or escaped assessments of property taxes, if any, made pursuant to the provisions of Chapter 3.5 (commencing with Section 75) or Part 2, Chapter 3, Articles 3 and 4, respectively, of the Revenue and Taxation Code of the State of California as a result of the transfer of title to the vestee named in Schedule A or as a result of changes in ownership or new construction occurring prior to Date of Policy. 1. Water rights, claims or title to water, whether or not disclosed by the public records. 2. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. State of California A state highway May 2, 1914 in Book 288, Page 258 of Official Records The route thereof affects a portion of said land and is more fully described in said document. 3. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. State of California State highway 80 feet in width August 4, 1926 in Book 1210, Page 463, of Deeds and in Book 1226, Page 355 of Deeds The route thereof affects a portion of said land and is more fully described in said document. Said instrument additionally contains the privilege and right to extend drainage structures and excavation and embankment slopes beyond the limits where required for the construction and maintenance thereof 4. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Southern Counties Gas Company Cl TA Preliminary Report Form -Modified (11/17/06) Page6 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 Purpose:. Recorded:. Affects:. EXCEPTIONS (Continued) Fidelity National Title Company Order No.: 997-30056240-ML6 gas pipe line not to exceed 12 1/2 inches in diameter July 26, 1932 in Book 147, Page 152, of Official Records The route thereof affects a portion of said land and is more fully described in said document. 5. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. Southern California Telephone Company A right of way August 2, 1941 in Book 1200, Page 421, of Official Records The exact location and extent of said easement is not disclosed of record. 6. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: In favor of: Purpose:. Recorded:. Affects:. W. D. Cannon, an unmarried man, et al road and pipeline October 8, 1948 in Book 297 4, Page 493, of Official Records The route thereof affects a portion of said land and is more fully described in said document. Said easement has been conveyed and/or reserved in various other instruments of record. 7. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted to: Purpose:. Recorded:. Affects:. W. D. Cannon, an unmarried man easement for pedestrian access, recreational purposes, including right to use the lagoon for recreational and fishing purposes October 8, 1948 in Book 297 4, Page 496, of Official Records The exact location and extent of said easement is not disclosed of record. Reserving from said grant an easement and right of way for ingress and egress for road and public utility purposes and the right to inundate a portion thereof as described in said document. 8. The right to inundate that portion of said land adjoining the swamp and overflow land known as the Lagoon Bed, up to an elevation of 10 feet above the mean high tide line of the Pacific Ocean, as reserved by Grace Kathryn Burden in deed dated September 30, 1948 and recorded October 8, 1948 and as reserved by Grover C. Jacobsen, Grace Oakes Jacobsen and Gail Francis Latham, in deed dated September 30, 1948 and recorded October 8, 1948 in Book 2974, Page 496 and in Book 2975, Page 1, respectively of Official Records. Reserving from said grant easement and right of way for ingress and egress for road and public utility purposes and the right to inundate a portion thereof as described in said document. 9. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. San Diego Gas and Electric Company public utilities, ingress, egress October 20, 1949 in Book 3358, Page 85, of Official Records The route thereof affects a portion of said land and is more fully described in said document. CLTA Preliminary Report Form -Modified (11/17/06) Page 7 0 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) 0 Fidelity National Title Company Order No.: 997-30056240-ML6 10. The fact that the ownership of said Land does not include rights of access to or from the street, highway, or freeway abutting said Land, such rights having been relinquished by the document, Recorded:. Affects: May 2, 1952 in Book 4456, Page 192, of Official Records and by deed recorded May 18, 1953 in Book 4858, Page 320, of Official Records, by deed recorded March 20, 1969 as File No. 48604, of Official Records Said land adjacent. 11. The effect of any failure to comply with the terms, covenants and provisions of a lease to which reference is hereby made for full particulars. Described as Lease P. R. C. 791.1 dated April 21, 1953, from the State of California, acting through the State Lands Commission, as Lessor, to San Diego Gas and Electric Company, as Lessee, as amended by the amendments of Lease P.R. C. 791.1 dated March 24, 1972, June 28, 1973, September 13, 1978, July 1, 1980 and March 24, 1981, between the State of California, acting through the State Lands Commission and San Diego Gas and Electric Company, whereunder the State of California Leased to San Diego Gas and Electric Company an area of tide and submerged land near the City of Carlsbad in San Diego County for the installation, maintenance and use of a submarine pipeline transporting fuel oil and for a offshore marine terminal with fuel loading and unloading facilities for oil tankers. The effect of the failure by San Diego Gas and Electric Company to obtain the consent of the State Lands Commission. Various disclosures in that certain Lease Assignment and Assumption Agreement (Encina Power Plant) (Unrecorded Leases) recorded May 21, 1999 as File No. 1999-0347264, of Official Records. 12. The fact that the ownership of the land herein described does not include the right of ingress to or egress from that certain parcel of land granted to the State of California by deed from San Diego Gas and Electric Company, a corporation dated December 29, 1952 recorded May 18, 1953 in Book 4858, Page 320, of Official Records, said rights having been relinquished by said deed, excepting and reserving to the owners of the abutting lands and successors or assigns, the right to pass to and from the said lands upon surface of the waters of Aqua Hendionda Slough, under and beneath the freeway bridge located at approximately engineer's station 386 plus 45 and crossing said Slough. 13. A revocable licensed dated April 2, 1963 executed by and between San Diego Gas and Electric Company, a California corporation and Pirates Cove Inc., a California corporation to use and maintain a channel and a rock breakwater together with the right to dredge and re-dredge the channel, subject to the terms and conditions therein, recorded April 18, 1963 as File No. 66929, of Official Records. Reference is hereby made to said document for full particulars. Revocable License between SDG&E and Pirate's Cove, Inc., dated April 2, 1963 for channel dredging and construction of breakwater in connection with the Shelter Cove marina development, disclosed by Assignment and Assumption Agreement, recorded November 25, 2003 as File No. 2003-1411265, of Official Records. -- 14. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. The Vista Sanitation District and the City of Carlsbad sewer pumping station, sewer pipeline, manholes and road purposes June 24, 1964 as File No. 113886, of Official Records The route thereof affects a portion of said land and is more fully described in said document. CLTA Preliminary Report Form -Modified (11/17/06) Page8 ,-.. .. PRELIMINARY REPORT Fidelity National Title Company Order No.: 997-30056240-ML6 Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) A portion of said easement was eliminated by Easement/Quitclaim Deed recorded July 16, 2014 as Instrument No. 2014-0296137 of Official Records 15. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. Janss Corporation, a Delaware corporation A breakwater structure, a channel, trench ditch or other depression in the surface of the earth and an easement for ingress and egress over the waters of the upper lagoon _June 8, 1965 as File No. 102193, of Official Records The exact location and extent of said easement is not disclosed of record. 16. The effect of any failure to comply with the terms, covenants and provisions of the agreements listed herein below: 17. 18. The fact that ingress and egress between parcels described herein is not unlimited, but rather, due to the bisecting of parcels by railroad tracks, certain areas are limited to ingress and egress as set forth in the following: a) That certain "Agreement for Private or Farm Crossing" dated February 24, 1971 by and between the Atchison, Topeka and Santa Fe Railway Company, a Delaware corporation, and San Diego Gas and Electric Company, a California corporation. b) That certain "Pipeline License" dated March 1, 1971 by and between the Atchison, Topeka and Santa Fe Railway Company, a Delaware corporation, and San Diego Gas and Electric Company, a California corporation, which license grants the right to construct and maintain a tunnel, pipe and pedestrian walkway and various sizes of pipe carrier pipe; c) That certain agreement dated October 30, 1953 by and between the Atchison, Topeka and Santa Fe Railway Company, a Delaware corporation and San Diego Gas and Electric Company, a California corporation, and supplement thereto dated January 1, 1972 wherein the Santa Fe agreed to construct, operate and maintain a track aggregating 1814.3 feet to serve an electric generating plant. Reference is hereby made to said document for full particulars. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. The State of California public recreational use November 16, 1976 as File No. 76-383604, of Official Records The route thereof affects a portion of said land and is more fully described in said document. An Agreement, and the terms and conditions as contained therein Dated:. By and Between:. Recorded:. Regarding:. October 11, 1978 State of California and San Diego Gas and Electric Company October 27, 1978 as File No. 78-466720, of Official Records Fuel oil fill line easement. Reference is hereby made to said document for full particulars. CLTA Preliminary Report Form-Modified (11/17/06) Page 9 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) 0 Fidelity National Title Company Order No.: 997-30056240-ML6 19. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: An easement for the purpose shown below and rights incidental thereto as set forth in a document. Granted To:. Purpose:. Recorded:. Affects:. The City of Carlsbad, a municipal corporation storm drainage purposes February 25, 1986 as File No. 86-072936, of Official Records The route thereof affects a portion of said land and is more fully described in said document. 20. Easement(s) for the purpose(s) shown below and rights incidental thereto as set forth in a document: Granted To:. Purpose:. Recorded:. Affects:. The City of Carlsbad, a municipal corporation slope and retaining wall purposes May 13, 1988 as File No. 88-226631, of Official Records The route thereof affects a portion of said land and is more fully described in said document. 21. Covenants, conditions and restrictions in an instrument recorded October 21, 1992 as File No. 1992- 0670805, of Official Records. 22. Covenants, conditions and restrictions in an instrument recorded July 1, 1994 as File No. 1994-0418865, of Official Records. 23. An instrument entitled "Offer to Dedicate Public Access Easement and Declaration of Restrictions" recorded July 1, 1994 as File No. 1994-0418867, of Official Records. Note: Certificate of Acceptance recorded May 3, 2007 as File No. 2007-0303186 of Official Records. 24. An instrument entitled "Notice of Restriction on Real Property" recorded October 9, 1995 as File No. 1995-0453332, of Official Records. 25. An unrecorded lease with certain terms, covenants and provisions set forth therein San Diego Gas and Electric Company City of Carlsbad Lessor:. Lessee:. Disclosed by:. Dated:. Unrecorded Agreement for Recreation, Sporting, Fishing and other purposes March 4, 1957 Said Lease was amended by Agreement dated April 1, 1962 and by a second amendment Agreement dated November 22, 1995. A sublease disclosed by unrecorded Agreement dated July 1, 1980 by and between the City of Carlsbad and Snug Harbor Marina, as disclosed by Memorandum of Partial Assignment Agreement recorded November 25, 2003 as File No. 2003-1411266, of Official Records. The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. 26. An unrecorded lease with certain terms, covenants and provisions set forth therein Lessor:. Lessee:. San Diego Gas and Electric Company The Pacific Telephone and Telegraph Company CLTA Preliminary Report Form -Modified (11/17/06) Page 10 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 Disclosed by:. Dated:. . / EXCEPTIONS (Continued) Fidelity National Title Company Order No.: 997-30056240-ML6 Unrecorded License Agreement for the right to construct, maintain, use, operate, repair, replace or remove a line of poles, together with the right of ingress and egress August 5, 1957 The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. 27. Matters contained in that certain document An Agreement to which reference is hereby made for full particulars Dated:. September 17, 1968 Allan 0. Kelly and San Diego Gas and Electric Company By and Between:. Regarding:. Acquisition of easement and other matters as described in said agreement, including the right to dredge, redredge and remove spoil Reference is hereby made to said document for full particulars. 28. An unrecorded License with certain terms, covenants and provisions set forth therein San Diego Gas and Electric Company SFW Inc., a California corporation Licensor:. Licensee:. Disclosed by:. Dated:. Unrecorded License Agreement for the temporary storage of oysters, clams, scallops, and mussels, spiny lobsters, and green abalone and the mooring and/or anchorage of the vessels used in the business together with the right to access January 1, 1991 and amended October, 1992 and amended October 13, 1992 Reference is hereby made to said document for full particulars. · 29. An unrecorded License with certain terms, covenants and provisions set forth therein Licensor:. Licensee:. Disclosed by:. Dated:. San Diego Gas and Electric Company Hubbs-Seas World Research Institute Unrecorded License Agreement for a research site April 9, 1993 Reference is hereby made to said document for full particulars 30. An unrecorded License with certain terms, covenants and provisions set forth therein San Diego Gas and Electric Company Fleet Call West, Inc. Licensor:. Licensee:. Disclosed by:. Unrecorded License Agreement for any activity in connection with the provision of telecommunications service Dated:. September 22, 1995 Reference is hereby made to said document for full particulars. 31. An unrecorded License with certain terms, covenants and provisions set forth therein Licensor:. Licensee:. San Diego Gas and Electric Company The County of San Diego Cl TA Preliminary Report Form -Modified (11/17/06) Page 11 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 Disclosed by:. Dated:. C EXCEPTIONS (Continued) Unrecorded License Agreement August 20, 1996 0 Fidelity National Title Company Order No.: 997-30056240-ML6 Reference is hereby made to said document for full particulars. 32. The effect of the failure to comply with the terms, covenants and conditions or provisions set forth in the unrecorded lease by and between Lessor:. Lessee:. Disclosed by:. Dated:. State of California San Diego Gas and Electric Company State Land Lease for cooling water discharge channel July 8, 1989 33. The effect of the failure to comply with the terms, covenants and conditions or provisions set forth in the unrecorded lease by and between Lessor:. Lessee:. Disclosed by:. Dated:. State of California San Diego Gas and Electric Company State Land for deposition of dredge spoils July 1, 1994 34. The effect of the failure to comply with the terms, covenants and conditions or provisions set forth in the unrecorded lease by and between Lessor:. Lessee:. Disclosed by:. Dated:. State of California San Diego Gas and Electric Company Lease No. 871.1 Public Resources Code Series January 8, 1954 35. The effect of the failure to comply with the terms, covenants and provisions of the license Licensor:. Licensee:. Disclosed by:. Dated:. The Atchison, Topeka and Santa Fe Railway Company, a Delaware corporation, as to the 1977 Agreement and North San Diego County Transit Development Board, as to the 1999 Agreement San Diego Gas and Electric Company License NO. 1050/AG-16605 dated as of July 12, 1977 and amended by an unrecorded "Railroad Right of Way License" March 31, 1999 36. The effect of any failure to comply with the terms, covenants, and provisions of an unrecorded Agreement to which reference is hereby made for full particulars Dated:. By and Between: Disclosed by:. Regarding:. March 31, 1999 North San Diego County Transit Development Board and San Diego Gas and Electric Company Combined license, cost and maintenance agreement for the Encinas Power Plant Private Railroad Crossing Rail Reference is hereby made to said document for full particulars. 37. A document entitled "Assignment of Easements", dated, May 20, 1999, executed by San Diego Gas and CLTA Preliminary Report Form -Modified (11/17/06) Page 12 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) Fidelity National Title Company Order No.: 997-30056240-ML6 Electric Company, et al, subject to all the terms, provisions and conditions therein contained, recorded May 21, 1999 as File No. 1999-0347263, of Official Records. Reference is hereby made to said document for full particulars 38. Various disclosures in that certain Lease Assignment and Assumption Agreement (Encina Power Plant) (Unrecorded Leases) recorded May 21, 1999 as File No. 1999-0347264, of Official Records. Reference is hereby made to said document for full particulars. 39. A document entitled "Assignment and Assumption Agreement (Lease Documents) (Unrecorded Lease Documents)", dated, May 20, 1999, executed by San Diego Gas and Electric Company and Cabrillo Power I LLC, a Delaware limited liability company, subject to all the terms, provisions and conditions therein contained, recorded May 21, 1999 as File No. 1999-0347265, of Official Records. Reference is hereby made to said document for full particulars. 40. A document entitled "Easement and Covenant Agreement", dated, May 20, 1999, executed by San Diego Gas and Electric Company, a California corporation and Cabrillo I LLC, a Delaware limited liability company, subject to all the terms, provisions and conditions therein contained, recorded May 21, 1999 as File No. 1999-0347267, of Official Records. A document entitled "Consent Agreement", executed by San Diego Gas and Electric Company, a California corporation, Cabrillo Power I LLC, a Delaware limited liability company and Carlsbad Energy Center LLC, a Delaware limited liability company, subject to all the terms, provisions and conditions therein contained, recorded May 26, 2017 as Instrument No. 2017-0239348 Official Records. 41. A document entitled "Memorandum of Agreement (Encina Power Plant)", dated, May 20, 1999, executed by Cabrillo Power I LLC, a Delaware limited liability company and San Diego Gas and Electric Company, subject to all the terms, provisions and conditions therein contained, recorded May 21, 1999 as File No. 1999-0347268, of Official Records. 42. A document entitled "Memorandum of License Agreement", dated, May 20, 1999, executed by Cabrillo Power I LLC, a Delaware limited liability company and San Diego Gas and Electric Company, subject to all the terms, provisions and conditions therein contained, recorded May 21, 1999 as File No. 1999- 0347270, of Official Records. 43. A document entitled "Memorandum of License Agreement", dated, May 20, 1999, executed by San Diego Gas and Electric Company, a corporation and Cabrillo Power II, LLC, a Delaware limited liability company, subject to all the terms, provisions and conditions therein contained, recorded May 21, 1999 as File No. 1999-0347277, of Official Records. 44. A document entitled "Memorandum of Agreement", dated, May 20, 1999, executed by Cabrillo II LLC, a Delaware limited liability company, subject to all the terms, provisions and conditions therein contained, recorded May 21, 1999 as File No. 1999-0347278, of Official Records. 45. A Certificate of Compliance Dated:. Executed by:. Compliance No.: Recorded:. October 29, 2001 The City of Carlsbad ADJ 00-10, Parcel 4 October 30, 2001 as File No. 2001-0789068, of Official Records CLTA Preliminary Report Form -Modified (11/17/06) Page 13 C PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) 0 Fidelity National Title Company Order No.: 997-30056240-MLB 46. Various matters disclosed on Record of Survey Map No. 17350, recorded April 12, 2002 as File No. 2002-0308152, of Official Records. 47. An unrecorded Lease affecting the premises herein described, executed by and between the parties herein named, with certain terms, covenants, conditions and provisions set forth therein. Lessor:. Lessee:. Disclosed by:. Recorded:. Cabrillo Power I, LLC, a Delaware limited liability company Poseidon Resources (Channelside) LLC, a Delaware limited liability company Short Form of Ground Lease and Easement Agreement July 18, 2003 as File No. 2003-0855354, of Official Records The present ownership of the Leasehold created by said Lease and other matters affecting the interest of the Lessee are not shown herein. Short Form of Amended and Restated Ground Lease and Easement Agreement Recorded:. And Recorded: October 28, 2009 as File No. 2009-0597945 of Official Records April 15, 2010 as Instrument No. 185731 of Official Records Short Form of Second Amended and Restated Ground Lease and Easement Agreement Recorded:. December 24, 2012 as File No. 2012-0809223 of Official Records First Amendment to Short Form of Second Amended and Restated Ground Lease and Easement Agreement recorded March 8, 2018 as Instrument No. 2018-0090492 of Official Records. The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. 48. A document entitled "Easement Agreement", dated, November 25, 2003, executed by San Diego Gas and Electric Company, a California corporation and Cabrillo Power I, LLC, a Delaware limited liability company, subject to all the terms, provisions and conditions therein contained, recorded November 25, 2003 as File No. 2003-1411261, of Official Records. 49. A document entitled "Easement Agreement", dated, November 25, 2003, executed by San Diego Gas and Electric Company, a California corporation and Cabrillo Power I LLC, a Delaware limited liability company, subject to all the terms, provisions and conditions therein contained, recorded November 25, 2003 as File No. 2003-1411267, of Official Records. 50. A document entitled "Open Space Deed Restriction", dated, June 20, 2005, executed by The California Coastal Commission, et al, subject to all the terms, provisions and conditions therein contained, recorded June 27, 2005 as File No. 2005-0538090, of Official Records. 51. A document entitled "Notice of Restriction on Real Property", executed by City of Carlsbad, subject to all the terms, provisions and conditions therein contained, recorded December 20, 2006 as File No. 2006- 0902694 of Official Records. Affects: Parcel 210-010-43 SUP 06-10 Agua Hedionda Outer Lagoon Maintenance. 52. A document entitled "Notice of Restriction on Real Property", executed by City of Carlsbad, subject to all the terms, provisions and conditions therein contained, recorded December 20, 2006 as File No. 2006- CLTA Preliminary Report Form -Modified (11/17/06) Page 14 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 Fidelity National Title Company Order No.: 997-30056240-ML6 0902695 of Official Records. EXCEPTIONS (Continued) Affects: Parcel 210-010-043 CUP 06-12 County of San Diego Sheriff's Department Encina. 53. A document entitled "Notice of Restriction on Real Property", executed by City of Carlsbad, subject to all the terms, provisions and conditions therein contained, recorded April 9, 2009 as File No. 2009-0180835 of Official Records. Affects: Parcel 210-010-43 SA 09-01 Media Flo Satellite. 54. A document entitled "Deed and Lease Restriction", dated, August 25, 2009, executed by Poseidon Resources, LLC, subject to all the terms, provisions and conditions therein contained, recorded October 28, 2009 as File No. 2009-0597946 of Official Records. Said matters affects that portion of the land described on Exhibit B to said Instrument. 55. A document entitled "Amended and Restated Development Agreement", executed by City of Carlsbad and Poseidon, subject to all the terms, provisions and conditions therein contained, recorded October 30, 2009 as File No. 2009-0605539 of Official Records. Said matters affects that portion of the land described on Exhibit A to said Instrument. 56. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other matters shown on Map: Recording Date: Record of Survey No. 20809 September 22, 2010 57. A document subject to all the terms, provisions and conditions therein contained. Entitled: Notice of Restriction on Real Property Recorded: October 18, 2012 as File No. 2012-0640581, Official Records Reference is hereby made to said document for full particulars. 58. Matters contained in that certain document Entitled: Recording Date: Recording No: Notice of Restriction on Real Property October 2, 2013 2013-0598452 of Official Records Reference is hereby made to said document for full particulars. 59. Matters contained in that certain document Entitled: Recording Date: Recording No: Notice of Restriction on Real Property October 17, 2013 2013-0623951 of Official Records Reference is hereby made to said document for full particulars. 60. Matters contained in that certain document CLTA Preliminary Report Form-Modified (11/17/06) Page 15 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 Entitled: Recording Date: Recording No: C, EXCEPTIONS (Continued) Drainage Easement December 31, 2013 2013-07 46436 of Official Records Reference is hereby made to said document for full particulars. 61. Matters contained in that certain document 0 Fidelity National Title Company Order No.: 997-30056240-ML6 Entitled: Permanent Stormwater Quality Best Management Practice Maintenance Agreement Recording Date: December 31, 2013 Recording No: 2013-0746437 of Official Records Reference is hereby made to said document for full particulars. 62. Matters contained in that certain document Entitled: Recording Date: Recording No: Memorandum of Easement Agreement April 28, 2014 2014-0167957 of Official Records 63. Matters contained in that certain document Entitled: Recording Date: Recording No: Sewer Easement Agreement July 22 2014 2014-0306554 of Official Records Reference is hereby made to said document for full particulars. 64. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Purpose: Recording Date: Recording No: Affects: San Diego Gas and Electric Company public utilities, ingress, egress April 10, 2015 2015-0170536 of Official Records as described therein 65. An irrevocable offer to dedicate an easement over a portion of said Land for Purpose(s): Recording Date: Recording No: Affects: coastal rail trail August 23, 2016 2016-0433031 of Official Records as described therein CLTA Preliminary Report Form -Modified (11/17/06) Page 16 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) Fidelity National Title Company Order No.: 997-30056240-ML6 66. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Purpose: Recording Date: Recording No: Affects: San Diego Gas and Electric Company, a corporation Pipelines and appurtenances for any and all purposes and communications facilities and appurtenances May 1, 2017 2017-0193757 of Official Records Parcel 4 as described therein. First Amendment to Grant of Easement recorded November 17, 2017 as Instrument No. 2017-0537945 of Official Records. 67. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Purpose: Recording Date: Recording No: Affects: San Diego Gas and Electric Company, a California corporation The transportation and distribution of natural gas including energy and communications and for all other purposes connected therewith May 1, 2017 2017-0193758 of Official Records as described therein. 68. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein as disclosed by the document Entitled: Lessor: Lessee: Recording Date: Recording No: Short Form of Ground Lease and Easement Agreement Cabrillo Power I LLC Carlsbad Energy Center LLC May 26, 2017 2017-0239349 Official Records The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. 69. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Purpose: Recording Date: Recording No: Affects: San Diego Gas and Electric Company, a corporation Underground facilities and appurtenances for the transmission and distribution of electricity and communications facilities and appurtenances June 9, 2017 2017-0260009 of Official Records as described therein. CLTA Preliminary Report Form-Modified (11/17/06) Page 17 C PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) Fidelity National Title Company Order No.: 997-30056240-ML6 70. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Carlsbad Municipal Water District Purpose: Recycled water pipeline and other buried appurtenances necessary to facilitate the operation and maintenance of said pipeline Recording Date: September 28, 2017 Recording No: 2017-0445712 of Official Records Affects: as described therein. 71. Matters contained in that certain document Entitled: Dated: Executed by: Recording Date: Recording No: Declaration of Environmental Restriction Regarding Use October 28, 2020 Cabrillo Power I LLC and the City of Carlsbad November 2, 2020 2020-0678029, Official Records Reference is hereby made to said document for full particulars. 72. Any adverse claim, as to the property described in Schedule A, based upon the assertion that: a) Some portion of said land has been created by artificial means, or had accreted to such portions so created. b) Some portion of said land has been brought within the boundaries thereof by a evulsive movement of the Pacific Ocean and/or Agua Hedionda Lagoon, or has been formed by accretion to any such portion. 73. Rights and easements for navigation and fishery which may exist over that portion of said land lying beneath the waters of the Pacific Ocean and/or Agua Hedionda Lagoon. 74. Any rights in favor of the public which may exist on said land for parking, beach, or recreational uses, and public protection, erosion control and the public rights of commerce navigation and fishery. 75. Any adverse claim based upon the assertion that some portion of said Land is tide or submerged lands, or has been created by artificial means or has accreted to such portion so created. 76. Matters which may be disclosed by an inspection and/or by a correct ALTA/NSPS Land Title Survey of said Land that is satisfactory to the Company, and/or by inquiry of the parties in possession thereof. 77. Any rights of the parties in possession of a portion of, or all of, said Land, which rights are not disclosed by the public records. The Company will require, for review, a full and complete copy of any unrecorded agreement, contract, license and/or lease, together with all supplements, assignments and amendments thereto, before issuing any policy of title insurance without excepting this item from coverage. The Company reserves the right to except additional items and/or make additional requirements after reviewing said documents. 78. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other matters which a correct survey would disclose and which are not shown by the public records. CLTA Preliminary Report Form -Modified (11/17/06) Page 18 PRELIMINARY REPORT Your Reference: Cabrillo Power 1 EXCEPTIONS (Continued) Fidelity National Title Company Order No.: 997-30056240-ML6 79. Any easements not disclosed by the public records as to matters affecting title to real property, whether or not said easements are visible and apparent. PLEASE REFER TO THE "INFORMATIONAL NOTES" AND "REQUIREMENTS" SECTIONS WHICH FOLLOW FOR INFORMATION NECESSARY TO COMPLETE THIS TRANSACTION. END OF EXCEPTIONS Cl TA Preliminary Report Form -Modified (11/17/06) Page 19 PRELIMINARY REPORT 0 Your Reference: Cabrillo Power 1 0 REQUIREMENTS SECTION Fidelity National Title Company Order No.: 997-30056240-MLS 1. The Company will require, for review, a full and complete copy of any unrecorded agreement, contract, license and/or lease, together with all supplements, assignments and amendments thereto, before issuing any policy of title insurance without excepting this item from coverage. The Company reserves the right to except additional items and/or make additional requirements after reviewing said documents. 2. The Company will require, for review, an Owner's Affidavit/Declaration completed by the record owner of the land be submitted for review prior to the closing of this transaction. Your prompt attention to this requirement will help avoid delays in the closing of this transaction. Thank you. The Company reserves the right to add additional items or make further requirements after review of the requested Affidavit/Declaration. 3. The Company will require, for review, an AL TA/NSPS Survey, which complies with the minimum standards for land surveys made for title insurance purposes, be furnished to the Company. The Company reserves the right to add additional items as disclosed by the survey, or make further requirements after review of the requested documentation. 4. The transaction contemplated in connection with this Report is subject to the review and approval of the Company's Corporate Underwriting Department. The Company reserves the right to add additional items or make further requirements after such review. 5. The Company will require a satisfactory estoppal affidavit executed by the current holder of the lessor's interest in the lease which identifies and confirms the existence of the lease and all amendments thereto and which states that the lessee is not in default under any of the terms and conditions of said lease and that said lease is in full force and effect. 6. The Company will require the following documents for review prior to the issuance of any title insurance predicated upon a conveyance or encumbrance from the entity named below: Limited Liability Company: Cabrillo Power I LLC, a Delaware limited liability company a) A copy of its operating agreement, if any, and all amendments, supplements and/or modifications thereto, certified by the appropriate manager or member. b) If a domestic Limited Liability Company, a copy of its Articles of Organization and all amendments thereto with the appropriate filing stamps. c) If the Limited Liability Company is member-managed, a full and complete current list of members certified by the appropriate manager or member. d) A current dated certificate of good standing from the proper governmental authority of the state in which the entity is currently domiciled. e) If less than all members, or managers, as appropriate, will be executing the closing documents, furnish evidence of the authority of those signing. f) If Limited Liability Company is a Single Member Entity, a Statement of Information for the Single Member will be required. g) Each member and manager of the LLC without an Operating Agreement must execute in the presence of a notary public the Certificate of California LLC (Without an Operating Agreement) Status and Authority form. CLTA Preliminary Report Form -Modified (11/17/06) Page 20 -PRELIMINARY REPORT .. Your Reference: Cabrillo Power 1 REQUIREMENTS (Continued) END OF REQUIREMENTS Cl TA Preliminary Report Form -Modified (11/17/06) Fidelity National Title Company Order No.: 997-30056240-MLS Page 21 C 0 INFORMATIONAL NOTES SECTION 1. Note: There are NO conveyances affecting said Land recorded within 24 months of the date of this report. 2. Note: The policy of title insurance will include an arbitration provision. The Company or the insured may demand arbitration. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. Please ask your escrow or title officer for a sample copy of the policy to be issued if you wish to review the arbitration provisions and any other provisions pertaining to your Title Insurance coverage. 3. Notice: Please be aware that due to the conflict between federal and state laws concerning the cultivation, distribution, manufacture or sale of marijuana, the Company is not able to close or insure any transaction involving Land that is associated with these activities. 4. Pursuant to Government Code Section 27388.1, as amended and effective as of 1-1-2018, a Documentary Transfer Tax (DTT) Affidavit may be required to be completed and submitted with each document when DTT is being paid or when an exemption is being claimed from paying the tax. If a governmental agency is a party to the document, the form will not be required. DTT Affidavits may be available at a Tax Assessor-County Clerk-Recorder. END OF INFORMATIONAL NOTES Mitch LaRiva/jsd CL TA Preliminary Report Form -Modified (11/17/06) Page 1 I"'- \., ~ ::}WI RE SAFE. I Inquire before you wire! Wire Fraud Alert This Notice is not intended to provide legal or professional advice. If you have any questions, please consult with a lawyer. All parties to a real estate transaction are targets for wire fraud and many have lost hundreds of thousands of dollars because they simply relied on the wire instructions received via email, without further verification. If funds are to be wired in conjunction with this real estate transaction, we strongly recommend verbal verification of wire instructions through a known, trusted phone number prior to sending funds. In addition, the following non-exclusive self-protection strategies are recommended to minimize exposure to possible wire fraud. • NEVER RELY on emails purporting to change wire instructions. Parties to a transaction rarely change wire instructions in the course of a transaction. • ALWAYS VERIFY wire instructions, specifically the ABA routing number and account number, by calling the party who sent the instructions to you. DO NOT use the phone number provided in the email containing the instructions, use phone numbers you have called before or can otherwise verify. Obtain the phone number of relevant parties to the transaction as soon as an escrow account is opened. DO NOT send an email to verify as the email address may be incorrect or the email may be intercepted by the fraudster. • USE COMPLEX EMAIL PASSWORDS that employ a combination of mixed case, numbers, and symbols. Make your passwords greater than eight (8) characters. Also, change your password often and do NOT reuse the same password for other online accounts. • USE MULTI-FACTOR AUTHENTICATION for email accounts. Your email provider or IT staff may have specific instructions on how to implement this feature. For more information on wire-fraud scams or to report an incident, please refer to the following links: Federal Bureau of Investigation: Internet Crime Complaint Center: http://www.fbi.gov http://www.ic3.gov Wire Fraud Alert Original Effective Date: 5/11/2017 Current Version Date: 5/11/2017 TM and© Fidelity National Financial, Inc. and/or an affiliate. All rights reseNed Page 1 WIRE0016 (OSI Rev. 12/07/17) C 0 ~ FIDELITY NATIONAL TITLE GROUP (i) A • • FNTG Western Region Fidelity National Title Company 4210 Riverwalk Parkway, Suite 200 v ,.. • • Energy Services Riverside, CA 92505 Chicago Title• Commonwealth• Fidelity National Title• TicorTitle Phone: (951) 710-5912 • Fax: Notice of Available Discounts Pursuant to Section 2355.3 in Title 1 O of the California Code of Regulations Fidelity National Financial, Inc. and its subsidiaries ("FNF") must deliver a notice of each discount available under our current rate filing along with the delivery of escrow instructions, a preliminary report or commitment. Please be aware that the provision of this notice does not constitute a waiver of the consumer's right to be charged the filed rate. As such, your transaction may not qualify for the below discounts. You are encouraged to discuss the applicability of one or more of the below discounts with a Company representative. These discounts are generally described below; consult the rate manual for a full description of the terms, conditions and requirements for such discount. These discounts only apply to transactions involving services rendered by the FNF Family of Companies. This notice only applies to transactions involving property improved with a one-to-four family residential dwelling. Not all discounts are offered by every FNF Company. The discount will only be applicable to the FNF Company as indicated by the named discount. FNF Underwritten Title Company CTC -Chicago Title company CL TC -Commonwealth Land Title Company FNTC -Fidelity National Title Company of California FNTCCA -Fidelity National Title Company of California TICOR -Ticor Title Company of California L TC -Lawyer's Title Company SL TC -Servicelink Title Company Available Discounts DISASTER LOANS (CTIC, CL TIC, FNTIC) Underwritten by FNF Underwriters CTIC -Chicago Title Insurance Company CL TIC -Commonwealth Land Title Insurance Company FNTIC -Fidelity National Title Insurance Company FNTIC -Fidelity National Title Insurance Company CTIC -Chicago Title Insurance Company CL TIC -Commonwealth Land Title Insurance Company CTIC -Chicago Title Insurance Company The charge for a Lender's Pdicy (Standard or Extended coverage) covering the financing or refinancing by an owner of reqa-d, within twenty-four (24) months of the date of a declaration of a disaster area by the government of the United States or the State of California on any land located in said area, which was partially or totally destroyed in the disaster, will be fifty percent (50%) of the appropriate title insurance rate. CHURCHES OR CHARITABLE NON-PROFIT ORGANIZATIONS (CTIC, FNTIC) On properties used as a church or for charitable purposes within the scope of the normal activities of such entities, provided said charge is normally the church's obligation the charge for an owner's policy shall be fifty percent (50%) to seventy percent (70%) of the appropriate title insurance rate, depending on the type of coverage selected. The charge for a lender's policy shall be forty (40%) to fifty percent (50%) of the appropriate title insurance rate, depending on the type of coverage selected. Notice of Available Discounts (Rev. 01-15-20) MISC0164 (DSI Rev. 03/12/20) Last Saved: November 4, 2020 by JSD Escrow No.: 30056240-997-MAT-ML6 FIDELITY NATIONAL FINANCIAL, INC. PRIVACY NOTICE Effective April 9, 2020 Fidelity National Financial, Inc. and its majority-owned subsidiary companies (collectively, "FNF," "our," or "we") respect and are committed to protecting your privacy. This Privacy Notice explains how we collect, use, and protect personal information, when and to whom we disclose such information, and the choices you have about the use and disclosure of that information. A limited number of FNF subsidiaries have their own privacy notices. If a subsidiary has its own privacy notice, the privacy notice will be available on the subsidiary's website and this Privacy Notice does not apply. Collection of Personal Information FNF may collect the following categories of Personal Information: • contact information (e.g., name, address, phone number, email address); • demographic information (e.g., date of birth, gender, marital status); • identity information (e.g. Social Security Number, driver's license, passport, or other government ID number); • financial account information (e.g. loan or bank account information); and • other personal information necessary to provide products or services to you. We may collect Personal Information about you from: • information we receive from you or your agent; • information about your transactions with FNF, our affiliates, or others; and • information we receive from consumer reporting agencies and/or governmental entities, either directly from these entities or through others. Collection of Browsing Information FNF automatically collects the following types of Browsing Information when you access an FNF website, online service, or application (each an "FNF Website") from your Internet browser, computer, and/or device: • Internet Protocol (IP) address and operating system; • browser version, language, and type; • domain name system requests; and • browsing history on the FNF Website, such as date and time of your visit to the FNF Website and visits to the pages within the FNF Website. Like most websites, our servers automatically log each visitor to the FNF Website and may collect the Browsing Information described above. We use Browsing Information for system administration, troubleshooting, fraud investigation, and to improve our websites. Browsing Information generally does not reveal anything personal about you, though if you have created a user account for an FNF Website and are logged into that account, the FNF Website may be able to link certain browsing activity to your user account. Other Online Specifics Cookies. When you visit an FNF Website, a "cookie" may be sent to your computer. A cookie is a small piece of data that is sent to your Internet browser from a web server and stored on your computer's hard drive. Information gathered using cookies helps us improve your user experience. For example, a cookie can help the website load properly or can customize the display page based on your browser type and user preferences. You can choose whether or not to accept cookies by changing your Internet browser settings. Be aware that doing so may impair or limit some functionality of the FNF Website. Web Beacons. We use web beacons to determine when and how many times a page has been viewed. This information is used to improve our websites. Do Not Track. Currently our FNF Websites do not respond to "Do Not Track" features enabled through your browser. Links to Other Sites. FNF Websites may contain links to unaffiliated third-party websites. FNF is not responsible for the privacy practices or content of those websites. We recommend that you read the privacy policy of every website you visit. Use of Personal Information FNF uses Personal Information for three main purposes: • To provide products and services to you or in connection with a transaction involving you. • To improve our products and services. • To communicate with you about our, our affiliates', and others' products and services, jointly or independently. When Information Is Disclosed We may disclose your Personal Information and Browsing Information in the following circumstances: • to enable us to detect or prevent criminal activity, fraud, material misrepresentation, or nondisclosure; • to nonaffiliated service providers who provide or perform services or functions on our behalf and who agree to use the information only to provide such services or functions; FNF Privacy Statement (Eff. April 9, 2020) MISC0219 (DSI Rev. 04/10/20) Copyright© 2020. Fidelity National Financial, Inc. All Rights Reserved Page 1 Order No. 30056240-997-MAT-ML6 C 0 • to nonaffiliated third party service providers with whom we perform joint marketing, pursuant to an agreement with them to jointly market financial products or services to you; • to law enforcement or authorities in connection with an investigation, or in response to a subpoena or court order; or • in the good-faith belief that such disclosure is necessary to comply with legal process or applicable laws, or to protect the rights, property, or safety of FNF, its customers, or the public. The law does not require your prior authorization and does not allow you to restrict the disclosures described above. Additionally, we may disclose your information to third parties for whom you have given us authorization or consent to make such disclosure. We do not otherwise share your Personal Information or Browsing Information with nonaffiliated third parties, except as required or permitted by law. We may share your Personal Information with affiliates (other companies owned by FNF) to directly market to you. Please see "Choices with Your Information" to learn how to restrict that sharing. We reserve the right to transfer your Personal Information, Browsing Information, and any other information, in connection with the sale or other disposition of all or part of the FNF business and/or assets, or in the event of bankruptcy, reorganization, insolvency, receivership, or an assignment for the benefit of creditors. By submitting Personal Information and/or Browsing Information to FNF, you expressly agree and consent to the use and/or transfer of the foregoing information in connection with any of the above described proceedings. Security of Your Information We maintain physical, electronic, and procedural safeguards to protect your Personal Information. Choices With Your Information If you do not want FNF to share your information among our affiliates to directly market to you, you may send an "opt out' request by email, phone, or physical mail as directed at the end of this Privacy Notice. We do not share your Personal Information with nonaffiliates for their use to direct market to you without your consent. Whether you submit Personal Information or Browsing Information to FNF is entirely up to you. If you decide not to submit Personal Information or Browsing Information, FNF may not be able to provide certain services or products to you. For California Residents: We will not share your Personal Information or Browsing Information with nonaffiliated third parties, except as permitted by California law. For additional information about your California privacy rights, please visit the "California Privacy'' link on our website (https://fnf.com/pages/californiaprivacy.aspx) or call (888) 413-17 48. For Nevada Residents: You may be placed on our internal Do Not Call List by calling (888) 934-3354 or by contacting us via the information set forth at the end of this Privacy Notice. Nevada law requires that we also provide you with the following contact information: Bureau of Consumer Protection, Office of the Nevada Attorney General, 555 E. Washington St., Suite 3900, Las Vegas, NV 89101; Phone number: (702) 486-3132; email: BCPINFO@ag.state.nv.us. For Oregon Residents: We will not share your Personal Information or Browsing Information with nonaffiliated third parties for marketing purposes, except after you have been informed by us of such sharing and had an opportunity to indicate that you do not want a disclosure made for marketing purposes. For Vermont Residents: We will not disclose information about your creditworthiness to our affiliates and will not disclose your personal information, financial information, credit report, or health information to nonaffiliated third parties to market to you, other than as permitted by Vermont law, unless you authorize us to make those disclosures. Information From Children The FNF Websites are not intended or designed to attract persons under the age of eighteen (18).We do not collect Personal Information from any person that we know to be under the age of thirteen (13) without permission from a parent or guardian. International Users FNF's headquarters is located within the United States. If you reside outside the United States and choose to provide Personal Information or Browsing Information to us, please note that we may transfer that information outside of your country of residence. By providing FNF with your Personal Information and/or Browsing Information, you consent to our collection, transfer, and use of such information in accordance with this Privacy Notice. FNF Website Services for Mortgage Loans Certain FNF companies provide services to mortgage loan servicers, including hosting websites that collect customer information on behalf of mortgage loan servicers (the "Service Websites"). The Service Websites may contain links to both this Privacy Notice and the mortgage loan servicer or lender's privacy notice. The sections of this Privacy Notice titled When Information is Disclosed, Choices with Your Information, and Accessing and Correcting Information do not apply to the Service Websites. The mortgage loan servicer or lender's privacy notice governs use, disclosure, and access to your Personal Information. FNF does not share Personal Information collected through the Service Websites, except as required or authorized by contract with the mortgage loan servicer or lender, or as required by law or in the good-faith belief that such disclosure is necessary: to comply with a legal process or applicable law, to enforce this Privacy Notice, or to protect the rights, property, or safety of FNF or the public. FNF Privacy Statement (Eff. April 9, 2020) MISC0219 (OSI Rev. 04/10/20) Copyright© 2020. Fidelity National Financial, Inc. All Rights Reserved Page 2 Order No. 30056240-997-MAT-ML6 Your Consent To This Privacy Notice; Notice Changes; Use of Comments or Feedback By submitting Personal Information and/or Browsing Information to FNF, you consent to the collection and use of the information in accordance with this Privacy Notice. We may change this Privacy Notice at any time. The Privacy Notice's effective date will show the last date changes were made. If you provide information to us following any change of the Privacy Notice, that signifies your assent to and acceptance of the changes to the Privacy Notice. We may use comments or feedback that you submit to us in any manner without notice or compensation to you. Accessing and Correcting Information; Contact Us If you have questions, would like to correct your Personal Information, or want to opt-out of information sharing for affiliate marketing, send your requests to privacy@fnf.com, by phone to (888) 934-3354, or by mail to: FNF Privacy Statement (Eff. April 9, 2020) MISC0219 (OSI Rev. 04/10/20) Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, Florida 32204 Attn: Chief Privacy Officer Copyright© 2020. Fidelity National Financial, Inc. All Rights Reserved Page 3 Order No. 30056240-997-MAT-MLS C 0 ATTACHMENT ONE (Revised 05-06-16) CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990 EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy. 4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state in which the land is situated. 5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any claim, which arises out of the transaction vesting in the insured the estate of interest insured by this policy or the transaction creating the interest of the insured lender, by reason of the operation offederal bankruptcy, state insolvency or similar creditors' rights laws. EXCEPTIONS FROM COVERAGE -SCHEDULE 8, PART I This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. 6. Any lien or right to a lien for services, labor or material not shown by the public records. CL TA HOMEOWNER'S POLICY OF TITLE INSURANCE (12-02-13) ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE EXCLUSIONS In addition to the Exceptions in Schedule B, You are not insured against loss, costs, attorneys' fees, and expenses resulting from: 1. Governmental police power, and the existence or violation of those portions of any law or government regulation concerning: a. building; b. zoning; c. land use; d. improvements on the Land; e. land division; and f. environmental protection. This Exclusion does not limit the coverage described in Covered Risk 8.a., 14, 15, 16, 18, 19, 20, 23 or 27. 2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion does not limit the coverage described in Covered Risk 14 or 15. 3. The right to take the Land by condemning it. This Exclusion does not limit the coverage described in Covered Risk 17. 4. Risks: a. that are created, allowed, or agreed to by You, whether or not they are recorded in the Public Records; b. that are Known to You at the Policy Date, but not to Us, unless they are recorded in the Public Records at the Policy Date; Attachment One -CA (Rev. 05-06-16) Page 1 © California Land Title Association. All rights reserved. The use of this Form is restricted to CL TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. c. that result in no loss to You; or d. that first occur after the Policy Date -this does not limit the coverage described in Covered Risk 7, 8.e., 25, 26, 27 or 28. 5. Failure to pay value for Your Title. 6. Lack of a right: a. to any land outside the area specifically described and referred to in paragraph 3 of Schedule A; and b. in streets, alleys, or waterways that touch the Land. This Exclusion does not limit the coverage described in Covered Risk 11 or 21. 7. The transfer of the Title to You is invalid as a preferential transfer or as a fraudulent transfer or conveyance under federal bankruptcy, state insolvency, or similar creditors' rights laws. 8. Contamination, explosion, fire, flooding, vibration, fracturing, earthquake, or subsidence. 9. Negligence by a person or an Entity exercising a right to extract or develop minerals, water, or any other substances. LIMITATIONS ON COVERED RISKS Your insurance for the following Covered Risks is limited on the Owner's Coverage Statement as follows: • For Covered Risk 16, 18, 19, and 21 Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A. The deductible amounts and maximum dollar limits shown on Schedule A are as follows: Covered Risk 16: Covered Risk 18: Covered Risk 19: Covered Risk 21: Your Deductible Amount 1.00% of Policy Amount Shown in Schedule A or $2,500.00 (whichever is less) 1.00% of Policy Amount Shown in Schedule A or $5,000.00 (whichever is less) 1.00% of Policy Amount Shown in Schedule A or $5,000.00 (whichever is less) 1.00% of Policy Amount Shown in Schedule A or $2,500.00 (whichever is less) 2006 AL TA LOAN POLICY (06-17-06) EXCLUSIONS FROM COVERAGE Our Maximum Dollar Limit of Llablllty $10,000.00 $25,000.00 $25,000.00 $5,000.00 The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any improvement erected on the Land; (iii) the subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1 (a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power. This Exclusion 1 (b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 13 or 14); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing-business laws of the state where the Land is situated. 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth-in-lending law. 6. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated in Covered Risk 13(b) of this policy. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the Insured Mortgage in the Public Records. This Exclusion does not modify or limit the coverage provided under Covered Risk 11(b). The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE {Except as provided in Schedule B -Part 11,{ t{or T}his policy does not insure against loss or damage, and the Company will not pay costs, attorneys' fees or expenses, that arise by reason of: Attachment One -CA (Rev. 05-06-16) Page2 © California Land Title Association. All rights reserved. The use of this Form is restricted to CL TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. C 0 {PART I {The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: 1. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 6. Any lien or right to a lien for services, labor or material not shown by the Public Records.} PART II In addition to the matters set forth in Part I of this Schedule, the Title is subject to the following matters, and the Company insures against loss or damage sustained in the event that they are not subordinate to the lien of the Insured Mortgage:} 2006 ALTA OWNER'S POLICY (06-17-06) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any improvement erected on the Land; (iii) the subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1 (a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power. This Exclusion 1 (b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. 4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown in Schedule A, is (a) a fraudulent conveyance or fraudulent transfer; or (b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy. 5. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage, and the Company will not pay costs, attorneys' fees or expenses, that arise by reason of: {The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: 1. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Any facts, rights, interests, or claims that are not shown in the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and that are not shown by the Public Records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a}, (b), or (c) are shown by the Public Records. 6. Any lien or right to a lien for services, labor or material not shown by the Public Records. } 7. {Variable exceptions such as taxes, easements, CC&R's, etc. shown here.} Attachment One -CA (Rev. 05-06-16) Page 3 © Callfornla Land Tltle Association. All rights reserved. The use of this Form is restricted to CL TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. AL TA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY -ASSESSMENTS PRIORITY (04-02-15) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any improvement erected on the Land; (iii) the subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1 (a) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16. (b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 or 28); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing-business laws of the state where the Land is situated. 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury, or any consumer credit protection or truth-in-lending law. This Exclusion does not modify or limit the coverage provided in Covered Risk 26. 6. Any claim of invalidity, unenforceability or lack of priority of the lien of the Insured Mortgage as to Advances or modifications made after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 11. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of Policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 11 (b) or 25. 8. The failure of the residential structure, or any portion of it, to have been constructed before, on or after Date of Policy in accordance with applicable building codes. This Exclusion does not modify or limit the coverage provided in Covered Risk 5 or 6. 9. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated in Covered Risk 27(b) of this policy. 10. Contamination, explosion, fire, flooding, vibration, fracturing, earthquake, or subsidence. 11. Negligence by a person or an Entity exercising a right to extract or develop minerals, water, or any other substances. Attachment One -CA (Rev. 05-06-16) Page4 © Callfornla Land Title Association. All rights reserved. The use of this Form is restricted to CL TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association.