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Wind Energy Partnership, A California Limited Partnership; William W. v. Nextera Energy Resources

June 11, 2012

WIND ENERGY PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP; WILLIAM W. ADAMS, AN INDIVIDUAL; WHITEWATER ENERGY CORPORATION, A CALIFORNIA CORPORATION; WHITEWATER DEVELOPMENT CORPORATION, A CALIFORNIA CORPORATION; SAN GORGONIO FARMS, INC., A CALIFORNIA CORPORATION, PETITIONERS/PLAINTIFFS,
v.
NEXTERA ENERGY RESOURCES, LLC, A DELAWARE LIMITED LIABILITY COMPANY; WINDPOWER PARTNERS 1993, L.P., A DELAWARE LIMITED PARTNERSHIP; CITY OF PALM SPRINGS, A PUBLIC ENTITY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA; CITY COUNCIL OF THE CITY OF PALM SPRINGS; DAVID H. READY, IN HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF PALM SPRINGS; DOES 1-500, INCLUSIVE, RESPONDENTS/DEFENDANTS/ REAL PARTIES IN INTEREST.



The opinion of the court was delivered by: Honorable Manuel L. Real United States District Judge

[Honorable Manuel L. Real]

STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANTS CITY OF PALM SPRINGS, CITY COUNCIL OF THE CITY OF PALM SPRINGS, AND DAVID H. READY'S MOTION FOR SUMMARY JUDGMENT

On April 3, 2012, Defendants City of Palm Springs, City Council of the City of Palm Springs, and David H. Ready ("Defendants") filed a motion for summary judgment on the First Amended Petition for Writ of Mandate and Complaint for Damages and Declaratory and Injunctive Relief pursuant to Federal Rule of Civil Procedure 56 (the "Motion"). On May 21, 2012, the Motion was heard by the Court. Upon consideration of the Motion and all papers in support thereof and in opposition thereto, the pleadings, exhibits, and records in this matter, and oral argument of the parties, the Motion is GRANTED, and the First Amended Petition for Writ of Mandate and Complaint for Damages and Declaratory and Injunctive Relief is dismissed with prejudice.

STATEMENT OF UNCONTROVERTED FACTS

The Court determines that the following facts have been established as uncontroverted: UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON THE COMPLAINT'S FIRST CAUSE OF ACTION FOR DEPRIVATION OF DUE PROCESS.

UNCONTROVERTED FACTS SUPPORTING EVIDENCE

Plaintiffs received actual notice of the wind turbine repowering project (the "Repowering Project") in March 2010.

1. On or around February 24, 2010, Windpower Partners 1993, L.P. ("Windpower Partners 1993") submitted a Conditional Use Permit application regarding its wind turbine repowering project (the "Repowering Project").

March 28, 2012 Declaration of Craig Ewing ("Ewing Decl.") Exhibits ("Exhs.") A-C; Request for Judicial Notice ("RJN") Exhs. A-C.

2. Plaintiffs William Adams, Wind First Amended Complaint ("FAC") ¶¶ 4-

8, 31-33, 38; see also March 30, 2012 Declaration of Joseph Farrigan ("Farrigan Decl.") ¶¶ 2-10.

Energy Partnership ("WEP"), Whitewater Energy Corporation, Whitewater Development Corporation, and San Gorgonio Farms, Inc. (collectively, "Plaintiffs") are long-time owners of wind turbine projects in the City of Palm Springs.

Farrigan Decl. ¶¶ 2-3 & Exh. A.

3. On or around March 23, 2010, Joseph Farrigan ("Farrigan") of NextEra Energy Resources, LLC ("NextEra") emailed William Adams, Brad Adams, WEP, Whitewater Energy Corporation, Whitewater Development Corporation, and San Gorgonio Farms, Inc. an unexecuted "Declaration of Restrictive Covenants" (the "Proposed Agreement"), along with proposed purchase and sale documents in connection with WEP's purchase from NextEra of an unrelated parcel of property (the "Cabazon parcel").

4. The Proposed Agreement stated, among other things, that Windpower Partners 1993, L.P. "intends to repower the Windpower Wind Farm located on the Benefitted Property, which involves

Farrigan Decl. Exh. A, Recitals ¶ C.

replacing and/or relocating some or all of the existing Wind Power Facilities (defined below) and possibly adding additional Wind Power Facilities (collectively, the "Repowering")."

5. The Proposed Agreement also stated that "WEP has agreed not to object to or interfere with the Repowering or to claim that the Windpower Wind Farm, after the Repowering, causes waking or otherwise interferes with the wind flow available to the WEP Wind Farm."

Farrigan Decl. Exh. A, Recitals ...


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