HomeMy WebLinkAbout1881 - RECOMMEND ADOPTION OF DA FOR A 401-GROSS-ACRE PC _BANNING RANCHRESOLUTION NO. 1881
A RESOLUTION OF THE PLANNING COMMISSION
RECOMMENDING ADOPTION OF DEVELOPMENT
AGREEMENT NO. DA2008 -003 FOR A 401- GROSS-
ACRE PLANNED COMMUNITY LOCATED AT
BANNING RANCH (PA2008 -114)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Newport Banning Ranch, LLC, with respect to a 401.1- gross-
acre property generally located north of West Coast Highway, south of 19th Street, and
east of the Santa Ana River requesting approval of a Development Agreement; General
Plan Amendment to the Circulation Element; Code Amendment; a Pre - annexation
Zone Change; Planned Community Development Plan; Master Development Plan;
Tentative Tract Map; Affordable Housing Implementation plan; and Traffic Phasing
Ordinance Traffic Study.
2. The applicant proposes a planned community, which may include the development of
up to 1,375 residential dwelling units, a 75 -room resort inn and ancillary resort uses,
and up to 75,000 square feet of commercial uses, and would provide approximately
51.4 gross acres of parklands, and the preservation of approximately 252.3 gross
acres of permanent open space.
3. A Development Agreement is required because the project requires a Zoning Code
amendment that includes the development of more than fifty (50) residential units.
4. The subject property is located within the City of Newport Beach Planned Community
(PC -25) Zoning District and the County of Orange Zoning Suburban Multi- family
Residential (R -4), Local Business Commercial (C -1), Light Industrial (M -1) with Oil
Production (0), Sign Restriction (SR), and Floodplain Zone (FP -2) Overlays.
5. The City of Newport Beach General Plan Land Use Element category is Open
Space /Residential Village (OS /RV).
6. The subject property is located within the coastal zone. The Coastal Land Use Plan
(CLUP) designates this property as a Deferred Certification Area; therefore, the policies
of the CLUP do not govern the development of the project site.
7. Study sessions were held on January 19, 2012, February 9, 2012, February 23, 2012,
and March 8, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard,
Newport Beach, California.
8. Public hearings on the project application were held on March 22, 2012, April 19, 2012,
and June 21, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard,
Planning Commission Resolution No. 1881
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Newport Beach, California. A notice of time, place and purpose of these meetings was
given in accordance with the Newport Beach Municipal Code. Evidence, both written
and oral, was presented to, and considered by, the Planning Commission at this
meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
A draft Environmental Impact Report (SCH No. 2009031061) (DEIR) has been
prepared in compliance with the California Environmental Quality Act (CEQA), the
State CEQA Guidelines, and City Council Policy K -3.
2. The DEIR was circulated for a 60 -day comment period beginning on September 9,
2011, and ending on November 8, 2011. The Final EIR (FEIR), consisting of the DEIR,
comments, responses to the comments, and Mitigation Monitoring and Report
Program, was considered by the Planning Commission in its review of the proposed
project.
3. On March 22, 2012, the Planning Commission adopted Resolution No. 1873
recommending to the City Council of the City of Newport Beach certification of the
Newport Banning Ranch Final Environmental Impact Report (SCH No. 2009031061).
4. On June 21, 2012, the Planning Commission adopted Resolution No. reaffirming
its recommendation to the City Council of the City of Newport Beach certification of the
Newport Banning Ranch Final Environmental Impact Report (SCH No. 2009031061).
SECTION 3. FINDINGS.
1. In accordance with Municipal Code Section 15.45.020.A.2.a, a development
agreement is required in conjunction with the City approval because the project
requires a Zoning Code amendment that includes the development of more than fifty
(50) residential units.
2. The Development Agreement includes all the mandatory elements for consideration.
a. The Development Agreement specifies a twenty -five (25) year term; and
b. The Development Agreement specifies a development plan that includes
permitted uses of the property, the density or intensity of the uses, the
maximum height and size of proposed buildings, provisions for reservation or
dedication of land for public purposes, and conditions, terms, restrictions, and
requirements for subsequent discretionary actions; and
c. The Development Agreement provides specified times for the construction and
completion of certain improvements on the North Community Park, Central
Community Park, and the segment of North Bluff Road between 17th Street and
19th Street.
Planning Commission Resolution No. 1881
Page 3 of 4
3. The Development Agreement includes public benefits that are appropriate to support
conveying the vested development rights.
a. The Development agreement provides for the payment of a public benefit fee in
the sum of thirty thousand, nine hundred and nine dollars ($30,909.00) per
residential dwelling unit developed as part of the project, including an annual
adjustment to the public benefit fee.
b. The Development Agreement provides for park land dedication and
improvements in excess of the Quimby Act Requirement.
4. Consistent with Government Code Section 65867.5, the Development Agreement
provides vested rights and public benefits for the proposed development, which is
consistent with the General Plan. Newport Banning Ranch Final Environmental Impact
Report (SCH No. 2009031061) included a consistency analysis that concluded that
proposed project is consistent with the goals and policies of the General Plan.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City of Newport Beach does hereby recommend that the City
Council approve Development Agreement No. DA2008 -001 as attached as Exhibit "A ".
PASSED, APPROVED AND ADOPTED THIS 21st DAY OF JUNE, 2012.
AYES: Brown, Hillgren, Kramer, Myers, Toerge, and Tucker
NOES: None
ABSTAIN: None
ABSENT: Ameri
W
In
ecretary
Planning Commission Resolution No. 1881
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EXHIBIT "A"
DEVELOPMENT AGREEMENT No. DA2008 -003
by and between
CITY OF NEWPORT BEACH
NEWPORT BANNING RANCH LIMITED LIABILITY COMPANY
(Concerning Newport Banning Ranch Property)
RECORDING REQUESTED 13Y
AND WFIEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use
This Agreement is recorded at the request and for
the benefit of the City of Nlewporl Beach and is
exempt Gam the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT NO. DA2008 -003
by and between
CITY OF NEWPORT BEACH
and
AERA ENERGY LLC AND CHEROKEE NEWPORT BEACH, LLC
(CONCERNING NEWPORT BANNING RANCH PROPERTY)
112M6675I- 1111911
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DEVELOPMENT AGREEMENT
(Pursuant to California Government Code Sections 65864 - 65869.5)
This DEVEI..OP \,113NIT AGREEMENT (tile "Agreement ") is (late(] for reference
purposes as of the _clay of 2012 (the " Agreement Dale "), an(] is being entered
into by and between the CITY OF NL'4VP0RT BEACH ( "Gifu "), and AERA ENERGY, LLC
and CHEROKEE NIFWPORT BEACH, LLC (collectively, °Landowner "). Ci(y amt Landowner
are sometimes collectively referred to in this Agreement as the "Parties" and individually as a
"P ru "
RECITALS
A. "file two entities comprising Landowner are the fee owners of that certain real
property consisting of approximately four hundred one (401) gross acres of land area commonly
referred to as the Newport Banning Ranch (tile "Prover "). Approximately 40 acres of the
Property is located within the incorporated boundary of the City of Newport Beach and the
remainder of the Property (the "County Property ") is located within unincorporated Orange
County, in City's sphere of influence, as approved by the Local Agency Formation Commission
of Orange County. The Property is bounded generally on the north by Talbert Nature
Preserve /Regional Park in the City of Costa Mesa and residential development in the City of
Newport Beach; on the south by ]Vest Coast Highway and residential development in the City of
Newport Beach; on the east by residential, light industrial, and office development in the cities of
Costa Mesa and Newport Beach; and on the west by the United States Army Corps of Engineers
wetlands restoration areas and the Santa Ana River. The entire Property is within the Coastal
Zone as established by the California Coastal Act. The Property is more particularly described in
the legal description attached hereto as Exhibit A and is depicted on (he site map attached hereto
as Exhibit B. 'file County Properly is depicted on the site map attached hereto as Exhibit B -1.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use Policies, rules, and regulations, the California Legislawre adopted California Government
Code sections 65864- 65869.5 (the "Development Agreement Statute "). The Development
Agreement Statute authorizes a city to enter into development agreements with persons or
entities having a legal or equitable interest in real property located within the city'sjtuisdiction
or within its sphere of influence, provided that a development agreement may not become
operative as to property located in (he city's sphere of influence until annexation procceclings
annexing the properly to the city are completed within the period of lime specified by the
agreement.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This Agreement is
consistent with the Development Agreement Ordinance.
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3021.4-1-1.12 ,Of,, 13 112 ' 1
D. As detailed in Section 3 of this Agreement, Landowner has agreed to provide the
following significant public bcnelits (collcclively, the " Public Benefits ") as consideration for this
Agreement, which benefits are in excess of the obligations and requirements that City would be
eatided to unilaterally impose on Landowner as a condition of development consistent with
applicable provisions of law:
• Comprehensive oil field abandonment and remediation of the Properly at an
estimated cost of approximately Thirty Million Dollars (530,0005000).
• Provision and perpetual protection of natural open space at no cost to the public.
• Capture and treatment of offsite surface water drainage in accordance with Best
\ganagemenl Practices, resulting in significant water quality bcnelits to the
Properly and downstream properties, including the Semeniuk Slough.
• Dedication of the North Community Park and the Central Community Park,
totaling approximately 2I.8 gross acres and IS net acres of land area, and the
improvement of those public parks in accordance with Cxhibits 3 -6a and 3 -6b,
respectively, of the approved Master Development Plan for the Project (the "Park
Conceptual Design Plans "), which Public Benefits are well in excess of the
requirements of California law (e.g., Government Code Section 66477 [the so-
called "Quimby Act "]) and implementing City ordinances and regulations.
• Improvement of private open space and recreational amenities in the Project that
will be open and available for public use in accordance with the approved Master
Development Plan, including (i) the approximately 5.0 gross /3.7 act acre South
Community Park, (ii) the approximately 24.6 gross /20.4 net acre Bluff Park and
Interpretive Parks, (iii) a hail system through open space areas within the
Property, and (iv), if the resort inn is constructed and subject to approvals
required from other public agencies, including the California Department of
Transportation and the California Coastal Commission, a coastal public access to
be provided via a pedestrian and bicycle bridge from the Property across Nest
Coast Highway to the beach.
• Payment to City of a Public Benefit Pee in the sum of Thirty Thousand Nine
Hundred Nine Dollars ($30,909.00) for each residential unit constructed on the
Property.
• Cons truction /installation of public street /traffic improvements in excess of the
Project's obligation flor payment of °fair share" traffic fees.
C. This Agreement is consistent with the City of Newport Beach General Plan, as the
same is being amended on or before the Agreement Date. The General Plan was adopted by the
City Council of City on July 25, 2006, and the land use plan in the General Plan was approved
by City's voters on November 6. 2006. The General Plan land use designation for the Property
is OS(RV), Open Space /Residential Village, which establishes Open Space as the Primary Use
and Residential Village as the Alternative Use for the Properly. In particular, the General flan
provides that "if not acquired for open space within a time period and pursuant to terns agreed to
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by the City and property owner, the site may be developed as a residential village containing a
mix of housing types, limited supporting retail, visitor accommodations, school, and active
community parklands, with a majority of' the property preserved as open space. The property
owner may pursue entitlement and permits for a residential village during the time allowed for
acquisition as open space." Additionally, General Plan Land Use Policy 6.5.2 anticipates that (he
Property. will "[a]ccommodate a community part: of20 to 30 acmes that contains active playfields
that may be lighted and is of cuff icient acreage to serve adjoining neighborhoods and residents of
Banning Ranch, if' developed." The General Plan identifies the maximum intensity of
development allowed under the Property under the Alternative Use as one thousand three
hundred seventy -five (1, 375) residential dwelling units, seventy -five thousand (75,000) square
feet of retail commercial uses oriented to serve the needs of local and nearby residents, and
seventy -five (75) hotel rooms and associated ancillary uses in a small boutique hotel. 'file
development project (referred to herein as the "Project ") Landowner will be entitled to develop
during the Term of this Agreement is consistent with the Alternative Use fiv the Property
described in the General Plan. By its approval of this Agreement, the City Council of City finds
and determines that City has no source of funds to acquire the Property for open space purposes,
that City has no ability to negotiate with Landowner to acquire the Property for its fair market
value, that the Primary Use of the Property described in the General Plan is infeasible, and,
accordingly, that the Alternative Use of' the Property is the appropriate and legally authorized
use. Finally, subject to completion of City's planning and public hearing process and the
approval of the Orange County Transportation Authority, the Parties anticipate the Circulation
Element of City's General Plan will be amended on or before the Effective Dale to delete the
westerly extension of 15t1' Street to West Coast Highway through the Property and to make
certain other revisions to the previously planned master plan circulation system within the
Property such that the Project as approved will be consistent with (he Circulation Ficment of the
General Plan as so amended.
I-. In recognition of the significant public benefits that this Agreement provides, the
City Council finds and determines by its approval of this Agreement that this Agreement: (i) is
consistent with the City of Newport Beach General Plan as of the Agreement Date; (ii) is in the
best interests of the health, safely, and general welfare ofGity, its residents, and the public; (iii)
is entered into Pmsuanl to; and constitutes a present exercise of, City's police power; (iv) is
consistent and has been approved consistent with the Final Environmental Impact Report for the
City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 200601 1 1 1 9), the
Final Environmental Impact Report for the Newport Banning Ranch Project (the "Project EIR ")
that has been certified or is being certified for approval by the City Council of City on or before
the Agreement Date, and all findings, conditions of approval, and mitigation measures (including
the mitigation monitoring program) relating thereto; and (v) is consistent and has been approved
consistent with provisions of California Government Code Section 65867 and City of Newport
Beach Municipal Code Chapter 15.45.
G. On .tune 21, 2012, City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recommended
to the City Council that the City Council approve this Agreement.
1 -1. On , 2012, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Landowner, and members of the public. On
112m69)51`1091 3
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. 2012. consistent with applicable provisions of the Development Agreement
Statute auul Development Agreement Ordinance, the City Council adopted its Ordinance No.
((he "Adopting Ordinance "), finding this Agreement to be consistent with the City of-
Newport Beach General flan and approving this Agreement.
AGRLL'i\/IL' \IT
NOW, TFIEREFORB, City and Landowner agree as follows:
Definitions.
III addition to any terms defined elsewhere in this Agreement, the following terms when
used in [his Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed to that term in Section 5.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. _ approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement \b. DA2005 -003, as the same
may be amended from time to time.
"Agreement Date" shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CDP" shall mean a coastal development permit issued by the California Coastal
Commission pursuant to California Public Resources Code Section 30600 el seq. and the
implementing regulations promulgated by the Commission.
"CEQA" shall mean the California Luvironmental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section
15000 of seq.), as the same may be amended fi,om time to time.
"City" shall mean the City of Newport Beach, a California charter city, and any successor
or assignee of the rights and obligations of the City of Newport Beach hereunder.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed to that term in Section 10.1 of
this Agreement.
"Claim" shall have the meaning ascribed to that term in Scclion 10.1 ol'this Agreement.
"County Property" shall mean that portion of the Property that as of the Agreement Date
is located within unincorporated territory of the County of Orange and within City's sphere of
influence.
"CPI Index" shall mean the Consumer Price Index published from lime to time by the
United States Department of Labor Ior all urban consumers (all items) Ibr the smallest
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geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available (hat is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed to that term in Section 8.1 of this
Agreement.
"Default" shall have the meaning ascribed to that lean in Section 8.1 of this Agreement.
"Dcvcloh" or "Development" lent" shall mean to improve or the improvement of the Property
for the purpose ofcompleting the structures, improvements, and facilities comprising the Project,
including bill not limited to: grading; the construction of infrastructure and public hicililies
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man -made or altered open space areas; and the installation of
landscaping. The teems "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvemcnl. or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach \Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections
65864- 65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rude, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment orally fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
" Development Plan" shall mean all of the land use entitlements, approvals, and permits
approved by the City Council for the Project on or before the Agreement Date, as the saute may
be amended From time to lime consistent with this Agreement. Such land use entitlements,
approvals, and permits include; without limitation, the following: (i) General Plan Amendment
No. GP2008 -008 (amending the Circulation Element of the City's General Plan as referred to in
Recital E of' this Agreement); (ii) Zoning Code Amendment No. CA2008 -004 (removing that
portion of the Property previously located within the PC -25 zone and changing the zoning for
this area to 11C -57, approving a pre- annexation zone change for the portion of the Property
located within the unincorporated County territory to PC -57, and approving an amendment to
Section 20.65 of the Zoning Code to allow for a maximum height limit of 60 feet (as calculated
in accordance with applicable provisions of City's Municipal Code) in the iblixed-
Use /Residential land use area of the Project site); (iii) Planned Community Development Plan
No. PC2008 -002 (approving the \rewport Banning Ranch Planned Community Development
Plan that will Serve as the zoning and (Icvelopment regulations for the Property (as to the portion
of the Property currently within City's sphere of influence, upon the effective date of the
annexation of said portion of the Properly into the City)); (iv) the Newport Banning Ranch
Master Development Plan No. \4P2008 -001 (which implements the NBR -PC requirements for
the Property by establishing design criteria for each land use component proposed for
i iVm,r751 -nmm 5
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development within the N13R -11C and provides a sufficient level of detail, as determined by City,
to guide the review of'subsequcnt development approvals, including construction -level permits,
as required by the N13R -PC); (v) Tentative tract \Map No. NT2008 -003 (subdividing the
Property for development purposes and establishing lots for public dedication or conveyance,
easements for trails and public utilities, lots for residential development and conveyance to
merchant builders and /or homcbuyers, and lots for financing and conveyance that may be either
developed on a single family or residential condominium basis or for hotel and commercial
uses); (vi) Afforclable Housing ImpIcnhenfation Plan (`AHIP ") No. Al-12008 -001 (which, it-
complied with, satisfies the Project's requirements for provision of affordable housing); (vii)
Traffic Sludy No. TS2008 -002 for file Project; (viii) the Project EIR; and (ix) all conditions of
approval and all mitigation measures approved for the Project on or before file Agreement Date,
including without limitation all of file provisions in file adopted \Mitigation r \Monitoring and
Reporting Program approved for file Project pursuant to file Project EIR and applicable
provisions ol'CEQA.
"Development Rep,Illations" shall mean file following regulations as they are in effect as
of the Agreement Date and to the extent they govern or regulate file development of file Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed alter the Agreement Date that impairs or restricts Landowner's rights set
forth in this Agreement, unless such amendment or modification is expressly authorized by this
Agreement or is agreed to by Landowner in writing: the General Plan; the Development Plan;
and, to the extent not expressly superseded by the Development Plan or this Agreement, all other
land use and subdivision regulations governing the permitted uses, density and intensity of Ilse,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters that may apply to
development of the Project on the Property during the Term of this Agreement that are set forth
in Title 15 of the Municipal Code (buildings and construction), Title 19 of the i\Municipal Code
(subdivisions), and Title 20 of the Municipal Code (planning and zoning), but specifically
excluding all other sections of' the Municipal Code, including without limitation Title 5 of the
Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term
"Development Regulations," as used herein, does not include ant' City ordinance, resolution,
code, rule, regulation or official policy governing any of the following: (i) the conduct of
businesses, professions, and occupations; (ii) taxes and assessments (provided that this exclusion
of taxes and assessments from the definition of Development Regulations shall not be interpreted
to authorize City to impose Development Exactions on the Property in excess of file amount of
such Development Exactions that would be authorized by applicable law in the absence of this
Agreement and nothing in this Agreement is intended fo or shall be interpreted to constitute a
waiver by Landowner of its right to protest or contest the imposition of taxes or assessments
against file Property that are not in effect as of the Agreement Date); (iii) the control and
abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights
and interests which provide for the Ilse of or file entry Illicit public property; or (v) the exercise of
the power of eminent domain.
"Effective Date" shall mean file latest of the following dates, as applicable: (i) the date
that is thirty (30) clays aver the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved on or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations, the date on which the referendum is
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certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a liNvsuit is timely tiled challenging the
validity or legality of the Adopting Ordinance, this Agreement and /or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and /or the applicable Development Regulations, whether such finality is achieved by a final non -
appealable. judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement; (iv) the date on which
annexation into the City of the portion of the Property currently located in City's sphere of
influence becomes effective, and subject to the Parties' understanding and agreement that if
Landowner elects to defer annexation into the City of all or a portion of the Oil Well Operational
Area, as permitted by Section 2.5 of this Agreement, the condition in this clause (iv) will be
satisfied on a phased basis, with the condition in this clause (iv) being deemed satisfied as to the
portion of the Property initially annexed into the City (together with the portion of the Property
already located in the City) on the date the first annexation of the portion of the County Property,
excluding the Oil Well Operational Area (or portion thereof) becomes effective, and the
condition in this clause (iv) being deemed satisfied as to the Oil Well Operational Area (or
portion thereof) as to which annexation is so deferred on such later (late, if at all, that the
annexation of such area into the City becomes effective; (v) the date on which both of the
following have occurred: (A) the City Council of City has amended the Circulation Element of
City's General Plan to delete the most westerly extension of 15"' Sweet to West Coast Highway
(a( the southwest corner of the Property) through the Property and to make certain outer revisions
to the previously planned master plan circulation system within the Property, such that the
Project as approved is consistent with the Circulation Element of the General Plan as so amended
(with the understanding that City reserves its full legislative discretion with respect thereto); and
(6) the Orange County Transportation Authority has approved such amendment or amendments
to the Orange County Master Plan of Arterial Highways ( "MPAIT') necessary to make the
Development Plan and Development Regulations consistent therewith; and (vi) the (late on
which the California Coastal Commission approves a CDP for the Project consistent with the
Development Plan and Development Regulations. Promptly after the Effective Dale occurs, the
Parties agree to cooperate in causing an appropriate instrument to be executed and recorded
against the Property (or the portion thereof as to which the Effective Dale has occurred
consistent with clause (iv) in the immediately preceding sentence) memorializing the Effective
Date.
"Environmental Laws" means all federal, stale, regional, County, numicipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and
regulations which may hereafter be enacted and which apply to the Properly or any part thereof,
pertaining to the use, generation, storage, disposal, release, treatment, or removal of any
Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1950, 42 U.S.C. Sections 9601,
el sM., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, ct sec., as amended
( "RCRA "); the Emergency Planning and Community Right to Know Act of 1956, 42 U.S.C.
Sections 11001 el sea., as amended; the Hazardous Materials -transportation Act, 49 U.S.C.
Section 1501, el seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 el se g., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic
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Substances Control Act, 15 U.S.C. Sections 2601 et sea., as amended; the Federal Insecticide,
Fungicide and Rodcnlicide Act, 7 U.S.C. Sections 136 et seq.. as amended; the Federal Sale
Drinking Water Act, 42 U.S.C. Sections 300f et sect., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 eI se q., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et_seq., as amended; and Calilonia Health and Safety
Code Section 25100, et scq.
"Fire Station No. 2 Fee" shall have the meaning ascribed to Thal term in Section 3.5 of
this Agreement. V
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006 -76, and approved by City's voters in the November 7, 2006,
general niunicipal election, as amended by General Plan Amendment No. included within the
Development Plan, and excluding any amendment to City's General Plan adopted or approved
after the Agreement Date that impairs or reslicts Landowner's rights set forth in this Agreement,
unless such amendment is expressly authorized by this Agreement, is authorized by Sections S
or 9, or is agreed to in writing by Landowner.
"Hazardous Substances" shall mean any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, peiroleunn or
petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component fiom any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Landowner" shall mean Aera Energy LLC, a California limited liability company, as to
an undivided one -half (1/2) interest in the Property, and Cherokee Newport Beach, LLC, a
Delaware limited liability company, as to an individed one -half (1/2) interest in the Properly, and
any successor or assignee to all or any portion of the right, title, and interest of Aera Energy LLC
and Cherokee Newport Beach, LLC; in and to ownership of all or a portion of the Properly. to
this regard, Landowner has represented to City that Landowner previously granted to Newport
Banning Ranch Limited Liability Company, a California limited liability company in which Aera
Energy LLC and Cherokee i lewport Beach, LLC, are the sole voting members ( "1VBR "), the
exclusive right and option to purchase the Properly From Landowner pursuant to that certain
Restated and Amended Purchase Option Agreement dated as of December 20, 2005, and City
acknowledges that if NBR acquires fee title to the Property pm:suant to said agreement or
otherwise NBR will at that time become the "Landowner" as referred to herein.
"Mortgage" shall nnean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or it part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"N,lortgagee" shall nnean the holder of a beneficial interest under it Mortgage or any
successor or assignee of line (Mortgagee.
"Notice of Default" shall have the meaning ascribed to that term in Section 8.1 of this
Agreement.
11x11166751 -M90 8 3021%44.12 406/13 /11
"Oil Well Operational Area" shall mean the approximately twenty (20) acre portion of
the Property upon which oil drilling operations are pernnitted inn accordance with the City
Charter. The Oil Well Operational Area is depicted in Exhibit A to the City Charter.
"Part: Conceptual Desi nom" shall have the meaning ascribed to that term in Recital D
of this Agreement.
"Percy" or "Parties" shall mean either City or Landowner or both, as determined by the
context.
"Permitted "fransfeiee" shall mean any person, partnership. joint venture, corporation, or
other business entity to whom Landowner sells, transfers, or assigns all or any portion of the
Property pursuant to the terms set forth in Scction 11 of this Agreement. In the event of a
Transfer to a Permitted Transferee, all references ill this Agreement to "Landowner" shall be
deemed to refer to the Permitted Transferee with respect to the Property or the portion thereof so
"Transferred.
" Proiect" shall mean all on -site and off -site improvements that Landowner is authorized
and /or required to construct with respect to each parcel of the Property, as provided in this
Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"Project EIR" shall mean Final Environmental Impact Report SCH No. 2009031061
prepared and certified for the Project on or before the Agreement Date.
"Propel-ff, is described in Exhibit A and depicted on Exhibit E.
"Public Benefit Fee" shall have the meaning ascribed to that term in Section 3.1 of this
Agreement.
"Public Financing" shall mean the capital financing raised though the issuance ofbonds
or other public financing mechanisms.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Landowner is required to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations
and this Agreement, with the understanding that except as expressly set forth herein City shall
not have the right subsequent to the Agreement Date and during the Term of this Agreement to
adopt or impose requirements for any such Subsequent Development Approvals that do act exist
as of the Agreement Date.
"Term" shall have the meaning ascribed to that term in Scction 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed to that
term in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed to that term in Scction I I of this Agreement.
112416G]SLU090
:M I XJJ.12 AW 1 / 12
2. General Provisions
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 13indine Effect of Apt-cement
From and after the Effective Date and for the Term of this Agreement, the Properly (or
the portion of the Properly for which the Effective Dale has occurred pursuant to this
Agreement) shall be subject to this Agreement and Development of the Property is authorized
and shall be carried out in accordance with the terms of this Agreement.
2.3 Landowner Representations and Warranties Re gag, rcling Ownership of the Property and
Related Matters Pertaining to this Agreemcnt.
Landowner and each person executing this Agreement on behalf of Landowner hereby
represents and warrants to City as follows: (i) that Landowner is the owner of the fee simple title
to the Property; (ii) if Landowner or any co -owner comprising Landowner is a legal entity that
such entity is duly formed and existing and is authorized to do business in the State of California;
(iii) if Landowner or any co -owner comprising Landowner is a natural person that such natwal
person has the legal right and capacity to execute this Agreement; (iv) that all actions required to
be taken by all persons and entities comprising Landowner to enter into this Agreement have
been taken and that Landowner has the legal authority to enter into (his Agreement; (v) that
Landowner's entering into and performing its obligations set forth in this Agreement will not
result in a violation of any obligation, contractual or otherwise, that Landowner or any person or
entity comprising Landowner has to any third parr; (vi) that neither Landowner nor any co-
owner comprising Landowner is the subject of any voluntary or involuntary petition in
bankruptcy, nor is Landowner or any such co -owner insolvent or Unable to pay its debts and
perform its obligations when clue; (vii) that all persons executing this Agreement on behalf of
Landowner are authorized to do so and their signatures on this Agreement are sufficient to make
this Agreement a legally binding obligation of Landowner; and (viii) that Landowner has no
actual knowledge of any pending or threatened claims of any person or entity affecting the
validity of any of the representations and warranties set forth in clauses (i)- (vii), inclusive, or
affecting Landowner's authority or ability to enter into or perform any of its obligations set forth
in this Agreement.
2.4 Term.
The term of this Agreement (the "Terns ") shall continence on the Effective Dale and shall
terminate on the "Termination Date."
Notwithstanding any other provision set lorth in (his Agreement to the contrary, if (i) the
Effective Date does not occur as to the entire Property, excepting only all or part of the Oil Well
Operational Area, within sixty (60) months after the Agreement Dale or (ii) either Party
reasonably determines that the Effective Dale of this Agreement will not occur as to the entire
Properly, excepting only all or part of the Oil Well Operational Area, bCeatrSe one or more of the
ivusrn I -MV111
302 19+1.12 a061Bn2 10
conditions precedent to the occurrence of the Effective Date have been disapproved by the
governmental agency having jurisdiction with respect (hereto, or (iii) the Adopting Ordinance or
any of the Development Regulations approved of or before the rgreemeIII Date for the Project
has /have been disapproved by City's voters at a referendum election or (iv) a final non -
appealable judgment is entered in a judicial action challenging the validity or legality of the
Adopting Ordinance, (his Agreement, and /or any of the Development Regulations for the Project
approved on or before the Agreement Dale such that this Agreement and /or any of such
Development Regulations Ware invalid and unenlorccable in whole or in such a substantial part
that the .juclgment substantially impairs such Party's rights or substantially increases its
obligations, costs, or risks hereunder or thereunder, then such Party, in its sole and absolute
discretion, shall have the right to terminate this Agreement upon delivery of a written notice of
termination to the other Party, in which event neither Party shall have any further rights or
obligations hereunder except that Landowner's indemnity obligations set forth in Article 10 shall
remain in rill force and effect and shall be enforceable. Such termination shall not affect the
validity or enforceability of those Development Regulations otherwise applicable to the Property
or portions thereof that would survive independent of this Agreemenl.
If the Effective Date timely occurs as to the entire Properly, excepting only all or a
portion of the Oil Well Operational Area, the Ef ec(ive Date of this Agreement as to the Oil Well
Operational Area (or portion lhereot) may be deferred until the annexation of such area into the
City becomes effective; which may occur at any time prior to the Termination Date.
The Termination Date (as to the entire Property, including (he Oil Well Operational Area)
shall be the earliest of the following dates: (i) the twenty -fifth (25 "i) anniversary of (he
Agreement Date, as said date may be extended in accordance with Section 5 of this Agreement;
(ii) such earlier date that this Agreement may be terminated in accordance with Section 3.3,
Articles 5, 7, and /or Section 8.3 of this Agreement and /or Sections 65865.1 and /or 65868 of the
Development Agreement Statute, as the same may be applicable; (iii) as to any separate legal lot
within the Property (but not as to the balance of (he Property or the portion thereof that remains
subject to this Agreement at such lime), upon the "Lot Termination Date" (defined below); or
(iv) completion of the Project in accordance with (he terms of this Agreement, including
Landowner's complete satisfaction, performance, and payment, as applicable, of all
Development Exactions, the issuance of all required final occupancy permits, and acceptance by
City or applicable public agency(ics) or private entity(ies) ofall required offers of dedication.
As used herein, the term "Lot Termination Date" fur any separate legal lot within the
Property means the date on which all of the following conditions have been satisfied with respect
to said lot: (i) the lot has been finally subdivided and sold or ]eased (for a period longer than one
year) to a Permitted Transferee, a member of the public, or other ultimate user; (ii) a final
Certificate of Occupancy or "Release of Utilities" has been issued lot the building or buildings
approved for construction on said lot; and (iii) as to any lot that is to be dedicated to City or other
applicable governmental agency, the date on which an irrevocable offer of dedication or outer
conveyance instrument reasonably salislactoy to City has been recorded against said lot, all
improvements that are required to be Developed on and with respect to said lot by Landowner
have been completed to the satisfaction of City, a Notice of Completion has been recorded with
respect to such improvements, and the lime period for the Iilingh'ecordation orally stop notices
or lien claims shall have expired and all stop notices or lien claims timely filed /recorded shall
have been satisfied or bonded against to the reasonable satisfaction of City.
i 12106675 i.unon
313 6.1.11. i2 :dud 13112 11
Notwithstanding any other provision set lorth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other Landowner obligations
set forth in this Agreement that are expressly written to survive the Termination Dale) shall
survive the Termination Date of this Agreement.
2.5 Annexation of Counly Properly.
Subject to the provisions set forth in the immediately succeeding paragraph, from and
after the Agreement Date, Landowner at its sole cost and expense shall diligently pursue to
completion all necessary proceedings before the Orange County Local Agency Formation
Commission ( "LAFCO ") for the annexation of the County Property into the City. Landowner
and City shall cooperate with LAFCO in connection with the annexation of the County Property,
it no cost to City.
Notwithstanding the foregoing, Landowner shall have the right to defer annexation of one
or both of the Oil Well Operational Areas into the Cily (and, thereby, to phase the annexation of
the County Property into the City) as long as (i) Landowner determines in its sole and absolute
discretion that such areas will or may continue to be used for a period of time for oil drilling and
related purposes and (ii) such a phased annexation is consistent with applicable statutes and
LAFCO rules and regulations and will not hinder or delay annexation of the balance of the
County Property into the City.
In addition to the foregoing, the Parties mutually acknowledge and agree that Landowner
shall not be required to consent to completion of the annexation of any portion of the County
Properly into City prior to the date that the California Coastal Commission approves a Coastal
Development Permit for the Project consistent with the Development Plan and such approval
becomes "final." As used herein, the Coastal Commission's approval of the Coastal
Development Permit for the Project shall be deemed to be "fi ial" on the later of the following
dates, as applicable: (i) the day after the date on which the statute of limitations for filing a
judicial challenge to the California Coastal Commission's approval of the Coastal Development
Permit expires without any such judicial challenge being timely filed; or (ii) if a judicial
challenge to the California Coastal Commission's approval of the Coastal Development Permit is
timely filed, the last of the following dales: (A) the date upon which such judicial action is
dismissed with prejudice; (f3) the date upon which such judicial action is dismissed without
prejudice and the statute of limitations for re- filing the same or similar action challenging the
California Coastal Commission's approval of the Coastal Development Permit expires without
such action being re -filed, (C) or the date upon which such judicial action is successfully
resolved in it manner which results in the California Coastal Commission's approval of the
Coastal Development Permit being upheld, either by a final non- appealable judgment or final
binding settlement agreement.
If is understood that (lie Property is "uninhabited" within the meaning of the Cortese -
Knox-f-lertzberg Local Government Reorganization Act of 2000 (California Government Code
Section 56046) and l.,andowner agrees to promptly provide all necessary approvals, written
consents, and waivers of protest or election rights as may be necessary and appropriate to cause
said annexation to be completed at the earliest feasible date; provided, however, that (i) nothing
in this paragraph is intended to modify or limit Landowner's right to defer annexation of one or
both of the Oil Well Opealional Areas, as hcreinabove set forth, and (ii) Landowner shall not be
1121o09751. 10-0 12
311215 14.12 a(VIN14
required to provide such approvals, consents, and waivers of protest or election rights if, as a
condition to the annexation of the County Property (or applicable portions thereol) to the Cily,
LAFCO suh.jecls file County Property to any conditions or burdens inconsistent with the terms
and conditions set forth in this Agreement.
Upon receipt of Landowner's written request. City agrees to support Landowner's
annexation application(s) with LAFCO by means ol'a written letter or City Council resolution,
and City further agrees to cooperate with Landowner with respect to such application(s), all at no
cost to City. City also agrees to timely perform all of its statutory duties as file "conducting
authority" with respect to annexation of the County Property or applicable portions thereof.
The Parties agree that the Development Regulations for the Property satisly the
requirements of Government Code Sections 65559 and 56375 with respect to prezoning ol'the
County Property.
3. Public Benefits
3.1 Public Benefit Fee
Subject to the provisions set forth in the next paragraph below and in Sections 3.2 and
3.3, and as consideration for City's approval and performance of its obligations set forth in this
Agreement, Landowner shall pay to City a lee, referred to herein as the "Public Benefit Fee," in
the sum of Thirty Thousand Nine Hundred Nine Dollars ($30,909.00) per residential dwelling
unit Developed as part of the Project (including all on -site market rate and affordable units). The
Public Benefit Fee shall be paid on it per unit basis as it condition to the issuance of each
residential building permit.
The amount of the Public Beneft Fee shall be increased (as to residential dwelling units
for which the Public Benefit Fee has not previously been paid) based upon percentage increases
ill the CPI Index. The first CPI adjustment to the Public Benefit Fee shall occur on the third
anniversary of the Agreement Date of this Agreement (the first "Adjus(ment Date ") and
subsequent CPI adjustments shall occur on each anniversary of the first Adjustment Date
thereafter until expiration of the Term of this Agreement (each, as "Adjus(ment Date "). The
amount of the CPI adjustment on the first Adjustment Date shall be the percentage increase in
the CPI Index between the second anniversary of the Agreement Date and the third anniversary
ol'the Agreement Date. The amount of the CPI adjustment on each subsequent Adjustment Date
shall be the percentage increase between said Adjustment Dale and the immediately preceding
Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable
Adjustment Dates shall in each instance be calculated based on the then most recently available
CPI Index figures such that, for example, if the first Adjustment Date occurs on July 1, 2016, and
the most recently available CPI Index 13gure on that (late is the CPI Index for \day 2015 (2
months prior to the first Adjustment Date), the percentage increase in the CPI Index on the first
Adjustment Date shall be calculated by comparing the CPI Index for \day 2014 with the CPI
Index for \lay 2015. In no event, however, shall application of the CPI Index on any
Adjustment Date reduce the amount ol'the Public Benefit Fee for unpaid portion thereof) below
the amount in efTect prior to that Adjustment Date. NOI[Wilhslanding any other provision set
forth in this Agreement to the contrary, during the Term of this Agreement City shall not
increase file Public Benefit Fee except pursuant to the CPI Index as staled in this Section 3.1.
11 2,11667i 1.0090 13
3021 &61.11 MW 13112
Landowner acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay (he Public Benelil fcc, that its obligation to pay the Public Benefit
Fee is an essential term of this Agreement and is not severable from City's obligations and
Landowner's vesting rights to be acquired hereunder, and that Landowner expressly waives any
constitutional, statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such lee oil any ground whatsoever, including without
limitation pursuant to the fifth and fourlcenth Amendments to the United Stales Constitution,
California Constitution Article I Section 19, the Mitigation Pee Act (California Government
Code Section 66000 el seg.), or otherwise. In addition to any other remedy set forth in this
Agreement for Landowner's default, if Landowner, including any Permitted Transferee, shall fail
to timely pay any portion of the Public Benefit Pee when due City shall have the right to (i)
withhold issuance of' the occupancy Pet mil and any other building, inspection, or development
hermit or approval for the unit for which the Public Benefit Pee remains unpaid or (ii) withhold
issuance of building, occupancy, and other building or development permits for any other portion
of the Project that at that lime is under common ownership with the defaulting Landowner or
Permitted Transferee, as applicable.
City shall have the right to spend the Public Benefit fee on any public purpose that City
determines to be in the Public interest, as designated by City in its sole and absolute discretion.
"I'hc Public Benefit fee is not intended to constitute a Development Exaction, is in addition to the
Development Exactions applicable to the Project (i.e., except as otherwise expressly set forth in
Section 3.3 of this Agreement, Developer shall not be entitled to a credit against the Public
Benefit fee for the amount of any Development Exaction paid or performed by Developer and
vice versa), and is not subject to restrictions on the use of various forms of Development
Exactions.
3.2 Renegotiation of Public Benefit fee if Development Plan Is Not Approved by California
Coastal Commission.
The Parties recognize that subsequent to the Agreement Date and prior to the
commencement of Development of the Project on the Property City and /or Landowner will be
required to apply to the California Coastal Commission ( "Commission ") for approval of a CDP
for the Project pursuant to applicable provisions of the California Coastal Act and that no
assurances can be provided as of the Agreement Date that the Commission will approve that
CDP application consistent with the Development Plan approved by City. The Parties further
acknowledge they have negotiated the amount and level of the Public Benefit fee set forth in
Section 3.1 of this Agreement based upon the Development Plan approved by City.
Accordingly, and in addition to the tact that the Effective Date is conditioned upon the
Commission approving the CDP consistent with the Development Plan approved by City, in the
event the Commission's approval of the Project is issued subject to conditions or requirements
that (i) (he number of residential dwelling units in the Project be reduced to a number less than
1,375, (ii) the net developable acreage of the Project on the Property be reduced below the
amount of net developable acreage approved by City as of the Agreement Dale, or (iii) imposing
any other conditions or requirements on Landowner's development rights that Landowner, in its
sole and absolute discretion, determines materially increases the cost of Development above the
costs that would be incurred by Landowner to Develop the Project pursuant to the Development
Plan approved by Cily as of the Agreement Date, then, in such event, the Parties agree to
negotiate in good faith regarding a reduction in the amount of the Public Benefits and /or the
113/1166751 -I1 /190
1031844.12 n114 /0/12 14
Public Benefit Fee. Notwithstanding the foregoing, nothing in this Agreement shall be deemed
to commit City to approve a reduction in the amount of the Public Benelits or the Public Benefit
Pee, and City reserves the right to approve or disapprove such a reduction in its sole and absolute
discretion, and if the Parties are unable to agree upon such a reduction Landowner's sole and
exclusive remedy shall be to terminate this Agreement by delivering written notice of
termination to City. In such event, the provisions set forth in Article 10 and Section 13.10 (as
well as any other Landowner obligations set forth in this Agreement [hat are expressly written to
survive the Termination Date) shall survive such termination. In addition, Landowner
recognizes and agrees that since all of the City actions relating to the items comprising the
Development Plan are being approved conditionally and contingent upon Landowner's
performance of its obligations set forth in this Agreement, Landowner's termination of this
Agreement automatically will result in the termination of the Development Plan and
Landowner's right to Develop the Project pursuant to the Development Plan.
3.3 Park Land Dedication and Improvements in Excess of Landowner's Ouimnby Act
Requirement; City Option to Develop North and Central Community Parks; Possible
Increase or Decrease in Public Benefit Pee.
Based upon the number of residential dwelling units approved in the Development Plan
(1,375), City has calculated that Landowner's Quimby Act obligation for the Project would be to
dedicate to City 15.1 net useable acres of park land within the Property in a rough graded
condition, with full improvement of adjacent public sweet access and all utility lines stubbed in
to a location approved by City (herein, "Rough Grade Condition "), to pay in -lieu park fees to
City based upon said acreage figure, or a combination of the two. Notwithstanding such
limitations on Landowner's Quimby Act obligations, and as further consideration for City's
approval and performance of its obligations set forth in this Agreement, Landowner agrees to
dedicate to City and City agrees to accept two public parks within the Property comprising a total
of approximately 18 net useable aces (21.8 gross acres) of land area (the North Community Park
and the Central Community Park) in a Rough Grade Condition.
In addition to the foregoing, and notwithstanding the aforedescribed limitations on
Landowner's Quimby Act obligations, and as fiirther consideration for City's approval and
performance of its obligations set forth in this Agreement, Landowner agrees to improve the
North and Central Community Parks in accordance with the Park Conceptual Design ]'falls (as
the same may be supplemented or revised from time to time by City) and the final plans and
specifications for the North and Central Connnumity Park improvements as approved by City in
accordance with City's Development Regulations. In this regard, prior to issuance of the lifiieth
(50a') certificate ofoccupancy for a residential dwelling unit (excluding model homes) within the
Project Landowner shall prepare, submit to City, and obtain City approval of (i) final plans and
specifications for the North and Central Community Park improvements and (ii) a detailed line -
item cost estimate for said park improvements based on the approved final plans and
specifications together with adequate supporting information to justify the amount and
reasonableness of each line item (collectively, the "Park Improvement Cost Estimate "). The
only costs included in Landowner's Park Improvement Cost Estimate shall be those costs
Landowner reasonably determines it will incur after (but not before) the Agreement Dale to
design, engineer, construct, install, supervise, and inspect the North and Central Community
Park improvements and maintain such improvements prior to the time City accepts the North and
Central Community Parks for maintenance purposes, including any permit and inspection fees to
i 121116675 ugvm 15
3112 194 1.12 AGI13 /R
be paid to City with respect thereto and the cost of obtaining and maintaining in effecl security
instruments for the wort: (collectively, the "Eligible Estimated Park Improvement Costs "). 'file
Eligible Estimated Park Improvement Costs shall not include any costs that Landowner
anticipates it will incur to deliver the North or Central Community Park in a Rough Grade
Condition. Construction management fees included in Eligible Estimated Park Improvement
Costs shall not exceed live percent (5 %) of the estimated "hard cost" of conslruclion /installation
and no other costs for developer profit, overhead, or similar charges, by whatever name called.
shall be included in Eligible Pall: Improvement Costs. The contingency amount included in
Eligible Estimated Park Improvement Costs shall not exceed ten percent (10 %) of File sum of the
other costs. In the event Landowner retains third party contractors, planners, engineers.
landscape architects, or other contractors and consultants to perform work with respect to
construction of the North and Central Community Parks, on the one hand, and other elements of-
the Project, on the other hand, Landowner shall fairly allocate costs between Eligible Park
Improvement Costs and other (non - eligible) costs.
City shall have the right to review and approve the Final plans and specifications for the
North Park and Central Community Park improvements, the Park Improvement Cost Estimate,
and the Eligible Estimated Park Improvement Costs, including without allocation the
reasonableness of any allocation of costs between Eligible Estimated Park Improvement Costs
and other non- eligible costs. City shall unreasonably delay, deny, or condition approval of any
ofsaid matters.
Prior to the later of (i) City's issuance of <a building permit for Development of the one
hundredth (100 "i) residential chvelling unit (excluding model homes) within the Project and (ii)
City approval of the final specifications for the North all([ Central Community Parks, the Park
Improvement Cost Estimate, and the Eligible Estimated Park Improvement Costs, City shall have
the right, but not the obligation, to deliver a written notice to Landowner informing Landowner
that City has elected to construct /install the North and Central Community Park improvements
itself' (the "City Park Notice "). City's failure to timely deliver the City Park Notice by said
deadline shall conclusively be deemed to constitute an election by City to mot construct /install
the North Park and Central Park improvements and to require Landowner to construct /install the
same.
If City timely delivers the City Park Notice, the following obligations shall apply: (i)
within thirty (30) days after City's delivery of the City Park Notice Landowner shall deliver or
cause to be delivered to City (A) ownership and true and correct copies of all plans, drawings,
specifications, surveys, and other records in the possession of Landowner and any contractor or
consultant retained directly or indirectly by Landowner with respect to the North and Central
Community Park improvements (collectively; the "Park Plans "), free and clear of any claim of
any third party that would restrict City's free and unfettered right to use the same, bill without
any representation or warranty by Landowner as to the completeness or adequacy of the same or
suitability for City's intended use, and (13) a written assignment of all of Landowner's right, title,
and interest in and to the Park Plans; (ii) upon Landowner's satisfaction of all of the
requirements set forth in clause (i) Landowner's obligation with respect to the North and Central
Community Parks shall be limited to delivering such parks to City in a Rough Grade Condition,
which Landowner shall do at least one (1) year prior to the estimated date upon which
Landowner (including Permitted Transudes) will be requesting the two hundredth (200 "i)
certificate of occupancy for a residential dwelling unit within the Project, and thereafter
1121066751.04-90
3112 IN 11.12 00611371 6
Landowner shall be released from any further obligation under this Agreement and any of the
Development Regulations to improve the North and Central Community Park Improvements;
(iii) the amount of the Public Benefit Pee payable by Landowner to City shall be increased by the
SLIM of Eight Million Dollars ($8,000,000) total (Five Thousand Light Hundred Eighteen Dollars
and Eighteen Cents [$5,818.18] per residential dwelling unit [1,375 DUs \ S5,818.18 =
$8,000,000], with such $8,000,000 sum increased by the percentage increases in the CPI Index
commencing with the first Adjustment Date referred to in Section 3.1 (and with the amount of
the increase(s) calculated in the same manner as provided in Section 3.1) and on each
Adjustment Date lherealier through the (late on which Landowner has fully performed its
obligations set forth in clauses (i) and (ii) (but not earlier than the (late on which City has issued
the two hundredth (200i1') certificate of occupancy for a residential dwelling unit, excluding
model homes, within the Pro jject), and with said increased Public Benefits Fee also payable on a
per building permit basis as provided in Section 3.1; and (iv) subject to Section 9 of this
Agreement, City shall exercise commercially reasonable diligence to complete the Development
of the North and Central Community Park improvements within one (1) year of the date upon
which Landowner fully performs its obligations set forth in clauses (i) and (ii).
Notwithstanding the City's right to construct /install the North and Central Community
Park improvements, if City delivers the City Park Notice but it thereafter fails to timely
commence either or both of said improvements, Landowner shall have the right, but not the
obligation, to elect to construct /install said improvements itself. If Landowner desires to
exercise this "self-help" remedy, it shall be required to deliver a written "Notice of Default" to
City, which Notice of Default shall clearly state that Landowner is electing to take over and
perform the work of constructing /installing the park improvements that are the sut�ject ol'tile
Notice of Default il'City does not cure the "Default" within the "Cure Period" applicable thereto
(see Section 8.1 below for definitions ofthose terms). IfCity fails to cure its Default (luring the
applicable Cure Period, then Landowner shall be authorized to proceed to construct /install the
park improvements that were the subject of the Notice of Default as though City had never
delivered the City Park Notice.
([City does not timely deliver the City Park Notice, the following obligations shall apply:
(i) if the City - approved Estimated Eligible Park Improvement Costs are equal to or less than
Eight Million Dollars ($8,000,000), with said sum adjusted in accordance with the percentage
increases in (lie CPI Index commencing with the first Adjustment Date referred to in Section 3.1
(and with the amount of the increase(s) calculated in the same manner as provided in Section
3.1) and on each Adjustment Date thereafter through the date on which City has issued the two
hundredth (200 "i) certificate of occupancy for a residential dwelling unit, excluding model
homes, within the Project (herein, the "Landowner's Estimated Cost Cap "), then Landowner
shall plan, design, engineer, construct, install, supervise, and inspect the North and Central
Community Park improvements and maintain such improvements prior to the time City accepts
the North and Central Community Parks for maintenance purposes, including payment of any
permit and inspection fees to be paid to City with respect thereto and the cost of obtaining and
maintaining in effect security instruments for the work, all at Landowner's sole cost and expense,
and regardless of whether the actual costs incurred by Landowner for said purposes actually
exceed the Landowner's Cost Cap; (ii) if the City - approved Eligible Park Improvement Costs
exceed the Landowner's Estimated Cost Cap.. then Landowner's Public Benefit Fee shall be
decreased by the difference between the City- approved Eligible Park Improvement Costs and the
Landowner's Estimated Cost Cap such that, for example (and without taking CPI adjustments
I I 2AJ6675 1 -0090 1 7
3(131 N' W.12 OW 13/12
into accounQ, if the Landowner's Estimated Cost Cap is $9,000,000 and the Eligible Park
Improvement Costs equal S10L000,000, Landowner would be entitled to a 51,000,000 reduction
in its Public Benefit Fee or it reduction in said lee per residential unit that is equal to $1,000,000
divided by the number of residential units that are ultimately vested in Landowner for
development on (he Property (S727.27 per residential unit assuming Landowner is vested with
[he right to develop 1,375 on -si(e residential units); (iii) Landowner shall commence construction
of the North and Central Community Park improvements no later than City's issuance of the two
hundredth (200'x') certificate of occupancy for a residential dwelling unit (excluding model
homes) within the Project and Landowner shall complete construction of the North and Central
Community Park improvements in strict conformance with the City- approved final park plans
and specifications and applicable Development Regulations and otherwise to the reasonable
satisfaction of City no later than City's issuance of the three hundredth (300i1') certificate of
occupancy for a residential dwelling unit (excluding model homes) within the Project; and (iv)
promptly after Landowner submits a written request to City for acceptance of the completed
North atul Central Community Park improvements (with the understanding that such a request
may be submitted separately for each park), together with a certification by Landowner's design
professional that the improvements satisfy the requirements for acceptance set Forth herein, City
shall consider such request and, if conshuction of the applicable Park improvements has been
satisfactorily completed, City shall accept the completed improvements in accordance with
applicable Development Regulations, provided [flat City's acceptance of the completed
improvements shall be subject to whatever rights City would normally have under its applicable
Development Regulations in the absence of this Agreement with respect to reservation of claims
for defective work and resort to any improvement security held by City relating thereto.
From time to time during the progress of Landowner's (and Permitted Transferees')
Development of (he Project and upon Landowner's written request, City shall promptly advise
Landowner of the status of the number of certificates of occupancy For residential dwelling units
that City has issued, in order to enable Landowner to plan the liming of its performance
obligations set forth in (his Section 3.3 with respect to the North and Central Community Park
improvements. Said City obligation shall terminate when City has advised Landowner that City
has issued file 300 °i certificate ofoccupancy For a residential dwelling unit within the Project.
The aforedescribed obligations of Landowner with respect to the North and Central
Community Parks shall be in addition to its obligations to dedicate, develop, and /or restore other
public and private hails, park, habitat areas, and park/open space improvements on other portions
ofthe Property.
City acknowledges that Landowner's performance of its obligations set forth in the
Development Regulations and this Agreement will satisfy all of Landowner's Quinnby Act
obligations For the dedication and improvement of park and recreational land and payment of in-
lieu fees relating thereto.
3.4 Transportation Improvennen[s; Fair Share Traffic Fee Credit; Acquisition of 15"'
Sheet Ripht -ol --Way.
If the California Coastal Commission approves the Project so as to authorize
construction /installation of the portion of Bluff Road between 17 °i Street and 19a' Street the
Parties agree (subject to any contrary conditions that may be imposed by the California Coastal
I I D166751 -umm is
111218,14.12 W6113/12
Commission) that said road improvements shall be constructed /installed in conjunction with the
Final phase of Landowner's Prgject. Landowner shall offer to dedicate the right -of -way needed
for said road improvements on the first final tract map(s) that include(s) the Portion ol' the
Property within which said portion of Bluff Road is located and Landowner shall deliver said
right -of -way to City in a rough graded condition on or before the date on which the 800'x'
certificate of occupancy is issued for a residential unit on the Property.
If the California Coastal Commission approves the construction /installation of the portion
of Bluff Road between 17 °i Street and 19 °' Street, said road improvements (beyond the rough
grading stage of Development) may be constructed /installed either by Landowner or by City, as
City may elect. City shall make such election by delivering written notice to Landowner
sufficiently in advance of the date that such construction /installation will need to commence in
order to enable each Party to timely plan to fulfill its responsibilities with respect thereto and, in
this regard, the Parties agree to consult and cooperate with one another during the course of
Landowner's Development of the Project consistent with that objective. If City elects to
construcl /inslall the portion of Bluff Road between 17 °i Street and 19'x' Street, Landowner shall
pay to City a Fair share traffic fee for said improvement based on (i) the announl, reasonably
estimated by City, to be the estimated cost of said work (including the cost to engineer, design,
construct, supervise, and inspect all improvements within the dedicated right -of way, but
excluding the cost /value of' the right -of -way, the rough grading cost, and the cost of complying
with any environmental mitigation requirements attributable to the grading required for said
roadway and construction /installation of the roadway itself and whether such environmental
mitigation requirements are imposed by City or sonic other federal, slate, or local agency with
jurisdiction, which costs shall all be Landowner's sole responsibility) and (ii) Landowner's fail-
share percentage for said improvement, which shall be calculated by City in accordance with the
standard methodology used by City in allocating fair share percentages for other road
improvements used to determine City's fair share traffic fee, and otherwise City shall be
responsible to construct said road improvements at City's sole cost and expense. If City elects to
have Landowner construct /install said road improvements, City shall pay to Landowner the
entire estimated cost of said improvements less the amount that would have been Landowner's
fair share lee I`or said improvements (calculated in accordance with the preceding sentence). The
Party obligated to Pay the other Party (depending upon which Party is responsible to perform the
work) shall make such payment to the other Party in cash within ten (10) days after the Party
performing the work submits to the Party obligated to make payment (i) an invoice requesting
payment and (ii) satisfactory evidence that the Party responsible to perform file work has entered
into it consUvction contract to complete the work and said Party's contractor has commenced
work pursuant to said construction contract. h is understood and agreed that Landowner's fail-
share traffic fee payment to City (if City elects to construct /install the portion of Bluff Road
between 17 °i Street and 19 °' Street) or City's cash payment to Landowner for said improvements
(if City elects to have Landowner construct /install the sanne) shall be based on the City's
estimated cost of said roadway and root the actual coast ruction /installation cost.
If City elects to construct /install the portion of Bluff Road between 17 °i Street and 19 °'
Street, City shall accept Landowner's offer of dedication of the right -of -way for said roadway in
accordance with applicable Development Regulations promptly after Landowner submits a
written request therefor, together with a certification by Landowner's civil engineer that the lines
and grades of the graded road extension confornn to the plans therefor and City verities the work
has in filet been satisfactorily completed. 11-City elects to have Landowner construct /install said
1 r2r0en7s 1.111190 I <)
302184.1.12 06113112
road improvements. City shall accept Landowner's offer of dedication of the right -of way and
improvements for said roadway in accordance with applicable Development Regulations
promptly after Landowner submits a written request therefor, togc(her with a certilication by
Landowner's civil engineer that the lines and grades of (he graded toad extension and the
improvements conform to the plans therefor and City verifies (he work has in tact been
satisfactorily completed. In either case, City's acceptance shall be subject to whatever rights
City would normally have under its applicable Development Regulations in the absence of this
Agreement with respect to reservation of claims for defective work and resod to any
improvement security held by City relating thereto.
Except as set forth in the preceding paragraph, the Panics agree that Landowner shall not
be obligated to pay a "fair share trafl9c Pee" pursuant to City's Fair Share Traffic Contribution
Ordinance (Chapter 15.35 of City's Municipal Code) based upon City's determination Ihat
Landowner will be constructing street /transportation improvements with public benefits in
excess of Landowner's lair share traffic fee obligation even if, for whatever reason, the
California Coastal Commission requires the Development Plan to be modified to delete
construction of the portion of Bluff Road between 17 °i Street and 1911' Strect. Landowner shall
not be entitled to a refund or reimbursement for the cost of constructing /installing the
street /transportation innprovennenls required as pa t of the Project in excess of what its fair share
traffic I'ee nvorld be in the absence of this Agreement, nor shall Landowner be entitled to ally
other fee credit based on its estimated or actual costs incurred to construct /install
street /transpm lotion improvements for the Project, whether on -site or off -site.
In addition to the foregoing, Landowner shall be responsible for paying the entire cost of
obtaining the oftsitc right -of- -way needed to widen 15i1' Street in accordance with the Project EIR
and applicable Development Regulations, including, if applicable, City's cost of acquisition. If
Landowner fails to acquire the needed right-of-way for the 15 °i Street widening prior to
recordation of (he first final tract map within the Property (flat a thorir_es development of
residential units, City and Landowner shall enter into an agreement pursuant to Government
Code Sections 66462 and 66462.5 which provides for City's acquisition of the right -of -way and
Landowner's payment of the entire cost therefor, including without linnitation all of City's legal,
appraisal, engineering, and other costs, all amounts of compensation paid to the persons and
entities having a compensable interest in (he right -of =way, City's litigation expenses and cowl
costs, and City payroll costs for the lime spent working on said acquisition by in -house City
staff.
3.5 Landowner's Contribution Toward Cost of Redevelopment of Fire Station \o. 2.
In order to implement Mitigation Measure 4.14 -2 in the Project CIR relating to
redevelopment of City's Fire Station No. 2 and as further consideration for City's approval and
performance of its obligations set forth in this Agreement, Landowner shall pay to City a fee dial
shall be in addition to any other fee or charge to which the Property and the Project would
otherwise he subject (herein, the "Fire Station \o. 2 Fee ") in the sum of Five Hundred Ten
Dollars (S5 10) per residential dwelling unit, with the per/unit fee to be paid upon the issuance of
a building permit for each residential unit developed within the Project. The amount of'said Fire
Station No. 2 Fee shall be increased (as to residential dwelling units for which the Fire Station
No. 2 Fee has not previously been paid) on each Adjustment Date in accordance with changes in
the CPI Index. calculated at the same times and in (he same manner as set forth in Section 3.1 of
I I D4166751.111911 20
.10211' 11.12 a0W 1 /1'_
this Agreement for CPI adjustment to the Public Benefit Fee. Notwithstanding any other
provision set forth in this Agreement to the contrary, during the Term of this Agreement City
shall not increase the Fire Station No. 2 Pee except pursuant to the CPI Index as stated in this
Section 3.5. Landowner acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay the Fire Station \b. 2 Fee, that its obligation to pay the Fire Station
No. 2 Fee is an essential term of this Agreement and is not severable from City's obligations and
Landowner's vesting rights to be acquired hereunder, and that Landowner expressly whales any
constittional, statutory, or connnnon law right it might have in the absence of this Agrecmcnl to
protest or challenge the payment of such fee on any ground whatsoever, including without
linnitation pursuant to the Mill and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the 1N itigation Fee Act (California Government
Code Section 66000 el seq.), or otherwise. In addition to any other rcnsecly set forth in this
Agreement for Landowner's clefaull, if Landowner; including any Permitted Transferee, shall fail
to timely pay any portion of the Fire Station No. 2 Fee when duc City shall have the right to (i)
withhold issuance of the occupancy permit and any other building, inspection, or development
permit or approval for the unit as to which the Fire Station No. 2 Pee remains unpaid or (ii)
withhold issuance of building, occupancy, and other building or development permits for any
Other portion of the Project that at that time is under conssnon ownership.
d. Development of Project.
4.1 Applicable Regulations; Landowner's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Terns of this Agreement,
(i) Landowner shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit, prevent, or delay development of the Property on grounds inconsistent
with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing
herein is intended to limit or restrict City's discretion with respect to (i) review and approval
requirennents contained in the Development Regulations, (ii) exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, (iv) approval, conditional approval, or
denial of any modifications or amendments to the Development Regulations as may be required
in order to conform to or comply with the action taken by the California Coastal Commission
with respect to the Coastal Development Permit approved by the Commission with respect to the
Project; or (v) any environnscntal approvals that may be required under CEQA or any other
fecleral or stale law or regulation in conjunction with any Subsequent Development Approvals
that may be required for the Project, and in this regard, as to future actions referred to in clauses
(i) -(v) ofthis sentence, City reserves its full discretion to the same extent City would have such
discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing
in this Agreement is intended to vest Landowner's rights with respect to any haws, regulations,
Riles, or official policies of any other governmental agency or public utility company with
Jurisdiction over the Property or the Project; or any applicable fecleral or state laws, regulations,
rules, or official policies that may be inconsistent with this Agreement and that override or
supersede the provisions set forth in this Agreement, and regardless of whether such overriding
112rIN�e3i 1.0090 21
3112.1 S -1-1.12 V6113113
or superseding laws; regulations, rules, or official policies are adopted or applied Io the Property
or the Project prior or subsequent to the Agreement Date.
Landowner has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of' the Project. Landowner represents and City
acknowledges that Landowner would not make these expenditures without this Agreement, and
that Landowner is and will be making Ihese expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
Landowner may apply to City For permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or sire of proposed structures, or
a change in use that generates more peak hour Iral7lc or more daily traffic than the Project as
approved as of the Agreement Date and, in addition, Landowner may apply to City for approval
of minor amendments to existing tentative tract maps, tentative parcel maps, or associated
conditions of approval, consistent with City of Newport Beach \Municipal Code section
19.12.090. This Agreement does not constitute a promise or commitment by City to approve any
such permit or approval, or to approve the same with or without any particular requirements or
conditions, and City's discretion with respect to such matters shall be the same as it would be in
the absence of this Agreement.
Notwithstanding any other provision set forth in this Agreement, nothing in this
Agreement is intended or shall be interpreted to place an affirmative obligation on Landowner to
proceed with or Develop the Project; provided, that if Landowner does elect to do so it shall do
so in strict conformity with the provisions set forth in this Agreement and the Development Plan
(as the same may be amended from time to time consistent herewith).
4.2 No Conflictinp Enactments.
Subject to City's reserved right to reconsider the Development Regulations for the
Project if and to the extent the California Coastal Commission does not approve a CDP
consistent therewith and except to the extent City otherwise reserves its discretion as expressly
set forth in this Agreement, during the "term of this Agreement City shall not apply to the Project
or the Property any ordinance, policy, rule, regulation, or other measure relating to Development
of the Project that is enacted or becomes effective after the Agreement Date to the extent it
conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an
ordinance, policy, role, regulation, or other measure applicable to the Project pursuant to
California Government Code Section 65866 consistent with the procedures specified in Section
4.3 of this Agreement. In Pardee C'onslruclion Co. v. C'it), of Ccanarillo (1984) 37 Cal.3d 465,
the California Supreme Court held that a construction company was not exempt from a city's
growth control ordinance even though the city and construction company had entered into a
consent judgment (tantamount to a contract under California law) establishing the company's
vested rights to develop its properly consistent with the zoning. The California Supreme Court
reached this result because the consent judgment failed to address the timing of development.
The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this
Agreement that Landowner shall have the vested right to Develop the Project on and with respect
to the Property at the rate, timing, and sequencing that Landowner deems appropriate within the
exercise of Landowner's sole subjective business judgment and notwithstanding adoption by
112,06675 1 -0090
M12 1844. 1 e xuu 13/12 22
City's electorate of mi initiative or referendum to the contrary ahcr the Agreement Dale;
provided, however, that (i) any such Development shall occur in accordance with this Agreement
and the Development Regulations and (ii) nothing in this Agreement is intended as a
representation or warranty by Cily to Landowner that a referendum will not be tiled or approved
that overturns one or more of the elements of the approved Development Plan or this Agreement
prior to the time the same become final and effective. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative, referendum (excepting a referendum that overturns one
or more of the elements of the approved Development Plan prior to the lime the same become
final and effective), or another method, affecting subdivision maps, building permits, occupancy
certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium
or other similar limitation restricts landowner's vested rights in (his Agreement or otherwise
conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in (his Agreement to the contrary, the laws,
Riles, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of' procedure shall apply to the Properly, provided that such procedural
regulations are adopted and applied City -wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and
Landowner shall he required to pay all applicable processing and permit fees that are charged on
a non - discriminatory basis to similarly situated development projects in City as needed to cover
the reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the pike, for performing necessary studies and reports in connection
therewith, inspecting (he work constructed or installed by or on behalf of Landowner, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the lime fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Landowner
has consented in writing to the regulations, shall apply to the Properly.
4.3.4 Development Exactions Aplplicabfe to Property. During the Term of this
Agreement, Landowner shall be required to satisfy and pay all Development Exactions that are
in effect as of the Agreement Date at the time performance or payment is due in the amounts that
would apply to Landowner and the Project at that time in the absence of this Agreement;
provided, however; that to the extent the scope and extent of a particular Development Exaction
or charge has been established and fixed by City in Sections 3.3 -3.5 of This Agreement (with
respect to Quimby Act dedicat ion /in -lieu fee requirements, fair share traffic fees, and the Fire
Station No. 2 Fee) or (he conditions of approval for any of the Development Regulations
i 12M6675 1-00911 23
30218.1.1.12V 613/12
approved on or before the Agreement Date City shall not alter, increase, or modify said
Development I SaetlOn in a manner that is inconsistent with such Development Regulations
without Landowner's prior written consent or as may be otherwise required pmsuanl to
overriding federal or state laws or regulations (Section 4.3.5 hercinbelow). In addition, nothing
in this Agreement is intended or shall be deemed to vest Landowner against the obligation to pay
any of the billowing (which are not included within the definition of "Development Exactions")
in the lull amount that would apply in the absence of this Agreement: (i) City's normal Ices for
processing, environmental assessment and review, tentative tract and parcel map review, plan
checking, site review and approval, administrative review, building permit, grading permit,
inspection, and similar fees imposed to recover City's costs associated with processing,
reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges
levied by any other public agency, utility, district, or joint powers authority, regardless of
whether City collects those fees and charges; or (iii) community lacilides district special taxes or
special district assessments or similar assessments, business license fees, bonds or other security
required fix public improvements, transient occupancy taxes, sales taxes, property taxes, sewer
lateral connection fees, water service connection fees, new water meter fees, and the Property
Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and Slate Laws and Regulations. Federal and slate
laws and regulations that override Landowner's vested rights set forth in this Agreement,
including without limitation the provisions of the California Coastal Act, shall apply to the
Property, together with any non - discriminatory City ordinances, resolutions, regulations, and
official policies that are necessary to enable City to comply with the provisions of any such
overriding federal or slate laws and regulations, provided Thal (i) Landowner does not waive its
right to challenge or contest the validity orally such purportedly overriding federal, state, or City
law or regulation; and (ii) upon the discovery of any such overriding federal, slate, or City law or
rcgulalion that is not consistent with the provisions of this Agreement or otherwise prevents or
precludes compliance with any provision of this Agreement, City or Landowner shall provide to
the other Party a written notice identifying the federal, slate, or City la\v or regulation, together
with a copy of the law or regulation and a brief written statement of the conflict(s) between that
law or regulation and the provisions ofthis Agreement. Promptly thereafter City and Landowner
shall meet and confer in good faith in a reasonable attempt to determine whether a modification
or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding
federal, state, or City law or regulation. In such negotiations, City and Landowner agree to
preserve the terms of this Agreement and the rights of Landowner as derived from this
Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate
with Landowner at no cost to City in resolving the conflict in a manner which minimizes any
financial impact of the conflict upon Landowner. City also agrees to process in a prompt manner
Landowner's proposed changes to the Project and any of the Development Regulations as may
be necessary to comply with such overriding federal, stale, or City law or regulation; provided,
however, that the approval of such changes by City shall be subject to the discretion of City,
consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that City reasonably determines is necessary to protect persons on the
Property or in the immediate vicinity from conditions dangerous to their health or safely shall
apply to the Property, even though the application of the ordinance, resolution, rule regulation,
112111(.6]$ I - IIIFIII 24
3n2 W -1.12 s)6A 3112
program, or official policy would result in the impairment of Landowner's vested rights under
this Agreement.
4.3.7 Uniform Building Standards. FIxisting and fiture building and building -
rclated standards set forth in the uniform codes adopted and amended by City from time to lime,
including building, plumbing, mechanical, electrical, housing, Swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agrecmenl.
4.3.5 Public Works Improvements. To the extent Landowner constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of it permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 Water and Wastewater Utility Service. City covenants to provide water
and wastewater utility services to the Projcct on a non - discriminatory basis (i.e., on the same
terms and conditions that City undertakes to provide such services to other similarly situated new
developments in the City of Newport Beach fi•om time to (ime, as and when service connections
are provided and service commences). While City represents that as of the Agreement Date City
has adequate capacity to provide water and wastewater services to the Project if the Project were
fully built out as of the Agreement Date, City makes no representation or warranty to Landowner
that the infrastructure needed to provide water and wastewater services will be sufficient at the
time Landowner Develops the Project, City is not hereby committing to improve or upgrade
existing water or wastewater utility infiast'ucture for the benefit of Landowner or the Project,
City does not warrant or represent that adequate water supplies or wastewater treatment capacity
will be available to serve Landowner of the Project at the time Development occurs, and, with
the exception of City's commitment that atrer the Agreement Date it will not adopt or enforce
any discriminatory City laws or regulations (as defined above) against the Project relating to the
provision ofwateror wastewater utility services.
If water or wastewater utility services are provided to the Project by an entity other than
City, City shall not impose any conditions or restrictions on the provision of such services to any
parcel or lot within the Property in excess of the restrictions imposed by the service provider;
provided; that City is not representing, warranting, or guaranteeing that any other entity has the
capacity, willingness, or ability to provide such services.
4.4 Tentative Subdivision Mails
Any tentative subdivision map for the Project shall comply with the provisions of
Calilornia Government Code Sections 66473.7.
City agrees that Landowner may file and process new and existing vesting tentative maps
for the Property consistent with California Government Code Sections 66495.1- 66495.9 and City
of Newport 13cach Nlunicipal Code Chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Government Code Section 66452.6(x)), the life of
any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, together with any Subsequent Development Approval shall be extended for
the Term of this Agreement.
1121U6075111090
M 1 I844.12 AMM.V 12 25
4.5 Responsibility for Processing AmAication for Coastal Development Permit; Costs
Within ninety (90) days after the Agreement Date, Landowner shall prepare and submit
to the California Coastal Commission a complete application for approval of a Coastal
Development Permit for the Project consistent with the Development Regulations and this
Agreement and thereafter Landowner shall exercise commercially reasonable diligence in an
effort to obtain an acceptable final decision by the California Coastal Commission with respect
to said application as soon as is reasonably practicable. Landowner shall be responsible for all
costs and expenses incurred with respect to said application. City agrees to reasonably cooperate
With and support Landowner in the processing of said application, at no cost to City; provided,
that City's cooperation shall not require City to agree to perform any obligations in excess of or
inconsistent with the Development Regulations or this Agreement, nor shall City be required to
waive Landowner's Bill compliance with any of Landowner's obligations set forth in the
Development Regulations or this Agreement. Landowner shall reimburse City for all of City's
reasonable costs and expenses incurred with respect to Landowner's CDP application (including
without limitation City's payroll costs and costs Por outside counsel and consultants (if required),
prorated with respect to City staff lime for the periods of time that City staff devote to said
application) within thirty (30) days after receipt of invoices and supporting information.
Landowner shall not be liable to City for any City staff time spent with respect to the CDP
application following the date of City's receipt of Landowner's written notice to City that
Landowner has abandoned the application for the CDP.
Notwithstanding any other provision set forth in this Agreement to the contrary, if the
California Coastal Commission does not approve it CDP for the Project as submitted and City is
called upon to consider a revised Project or revised conditions of approval or mitigation
measures in response to the Commission's action, City shall not be deemed to be in violation of
any of its obligations set forth herein.
4.6 Public Financing
Upon receipt of Landowner's written request, City shall consider in good faith any
requests for Public Financing to assist in Landownei's Development of the Project; provided,
however, that (i) in no event shall City be responsible to Pay any costs or incur any liabilities in
connection therewith and, to the extent City will be required to incur any such costs, Landowner
shall advance or reimburse the same PUrsuant to a subsequent agreement to be entered into by
City and Landowner; (ii) in no event shall any City funds or property be used as a source of
payment or security for any such Public Financing; (iii) City reserves its full legislative
discretion with respect to the formation of any Public Financing districts (inclu(ling without
limitation a comnxmity facilities district or assessment district), issuance of bands secured by the
Properly (or portions thereof), and all matters relating thereto, including without limitation the
total amount of Public Financing to be provided, the eligible improvements for such Public
Financing, provisions as to how any special taxes or assessments shall be allocated by means of
the rate and method of apportionment or engineer's report, the term orally bonds to be issued,
the minimum value-to -lien ratio to be used in sizing the bonds, and such other bond - related
matters as the identify of consultants, issuance costs, and the amount of capitalized interest and
reserve fund requirements; and (iv) in no event shall City be deemed to be in Default of its
obligations set forth in this Agreement if it fails or refuses to form it Public Financing district,
11 V066741 .0090 26
302 1844.12 a06(13112
issue bonds, or take any other related action requested or desired by Landowner with respect
thereto.
5. Amendment or Cancellation of Aerccment
Except as expressly set forth herein, including without limitation Sections 3.2 and 8.3,
this Agreement may be amended or canceled in whole or in part only by mutual written and
executed consent of the Parties in compliance with California Government Code Section 65868
and City of Newport Beach \qunicipal Code Section 15.45.060 or by unilateral termination by
City in the event of an uncured default of Landowner.
6. Enforcement.
Unlcss this Agreement is amended, canccicd, modified, or suspended as authorized
herein or pursuant to California Government Code Section 65869.5, this Agreement shall be
enforceable by either Party in accordance with its terms and without regard to any change in any
applicable general or specific plan, zoning, subdivision, or building regulation or other
applicable ordinance or regulation adopted by City (including by City's electorate) that purports
to apply to any or all of the Property.
In the event of any inconsistency or conflict between the terms set forth in this
Agreement and any of the documents comprising the Development Phut, the terns and
conditions set forth in this Agreement shall govern.
7. Annual Review of Landowner's Compliance With Aucement.
7.1 General
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code Section 65865.1. Landowner (including any successor to the owner executing this
Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City
may reasonably establish fi,om time to lime to cover the actual and necessary costs for the annual
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
7.2 Landowner Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Landowner is required to demonstrate good faith
compliance with the terms of the Agreement in accordance with the provisions of the
Development Agreement Ordinance and City's generally applicable policies and procedures.
Landowner agrees to furnish such evidence of good faith compliance as City, in the reasonable
exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective
Date during the Term.
7.3 Procedure.
"file City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not Landowner has, for the period under review,
1121066751 -0090 27
302 B 14.12106!13113
complied with the leans of this Agreement. If the Cite Council Finds that Landowner has so
complied, the annual review shall be concluded. II' the City Council finds, on the basis of
substantial evidence, that Landowner has not so complied, written notice shall be sent to
Landowner by first class mail of the City Council's finding of non - compliance, and Landowner
shall be given at least ten (10) days to cure any noncompliance ilia[ relates to the payment of
money and thirty (30) days to cure any other lype of noncompliance. If a cure not relating to the
payment of money cannot be completed within thirty (30) clays for reasons which are beyond the
control of Landowner, Landowner must commence the cure within such thirty (30) clays and
diligently pursue such cure to completion. If Landowner fails to cure such noncompliance
within the lime(s) set forth above, such failure shall be considered to be a Default and City shall
be entitled to exercise [he remedies set forth in Article S below.
7.4 Annual Review it N Ion- Exclusive Means for Determining and Requiring Cure of
Landowner's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
For City to identify a Default by Landowner or limit City's rights or remedies for any such
Default.
S. Events of Default.
9.1 Gencral Provisions; 'Notice of Delaull and Cure Period; Judicial Reference for Resolution
ol'Certain Disputes.
In the event of any material default, breach, or violation of the terms of this Agreement
( "Default "), the Party alleging a Defaull shall have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the
alleged Default and a reasonable manner and sufficient period of lime (ten (10) clays if the
Defult relates to the failure to timely make it monetary payment clue hcrcundef, not less than
thirty (30) days in the event of non- monetary Defaults excepting only a City Default in failing to
timely commence construction /installation of the 'North and /or Central Community Park
improvements after delivering the City Park Notice, as referred to in Section 3.3, and ninety (90)
days if the Default relates to a City Default in failing to timely commence
construction /installation of the North and /or Central Community Park improvements after
delivering the City Park Notice) in which the Default midst be cured (the "Cure Period "). During
the Cure Period, the Party charged shall not be considered in Default for the purposes of
termination of this Agreement or institution of Icgal proceedings. If the alleged Default is cured
within the Cure Period, then the Default thereafter shall be deemed not to exist. II' it non -
monetary Default cannot be cured during the Cure Period with the exercise of commercially
reasonable diligence, the defaulting Party must promptly commence to cure as quickly as
possible, and in no event later than thirty (30) clays after it receives the Notice of Default as to all
non- monetary Defaults other than a City Default in failing to timely continence
construction /installation of the North and /or Central Community Park improvements after
delivering the City Park Notice, and in no event later than ninety (90) clays after City receives a
Notice of Default with respect to its failure to timely commence consuvction /installation of the
North and /or Central Community Park improvements, and thereafter the defaulting Party shall
diligently pursue said core to completion.
112106675 1.00911 2 S
3021S.14. 12 ,06113112
Notwithstanding the foregoing, in the event City and Landowner cannot resolve any
dispute arising wider either Section 33 or 3.4 of this Agreement within thirty (30) clays
following either Party's delivery of a Notice of Delault to the other Party, then either Party shall
have the right thereafter to submit such dispute to a reference judge Ior a binding decision. Such
dispute shall be heard by a reference proceeding from the Orange County Superior Court
pursuant to California Code of Civil Procedure Section 638 et seq. A single referee shall try all
issues arising under Section 3.3 and /or 3.4, as applicable (but not issues arising under any other
provision of this Agreement unless the Parties so agree in writing at the time of such judicial
reference, with each Party reserving the right in its sole and absolute discretion to decline to
submit to judicial reference any dispute not arising under Section 3.3 or 3.4), whether of fact or
law, and report a finding aid judgment thereon, and issue all relief appropriate under the
circumstances of the coll(roversy before him /her (and sut�Ject to the limitations on remedies set
forth in Sections 8.6- 8.10). The referee may be asked to issue orders for (he settlement, cure,
correction, or remedy of any such Default, or to enforce any covenant or agreement in Section
3.3 or 3.4 herein (or other covenant or agreement set forth in this Agreement if and only if the
Parties subsequently agree in writing to submit it to judicial reference), to issue mandatory or
prohibitory injunctions, to issue a writ of mandanuis, issue a declaration in any declaratory relief
action, or to grant any other remedies consistent with the limitations on remedies set forth in
Sections 8.6 -8.10 and the purposes of (his Agreement. All decisions of the referee within the
permitted scope of thejudicial reference shall be final and binding on the Parties. Prom the date
of the filing of a complaint or petition with respect to any dispute that is subject to resolution by
judicial reference, as set forth above, until the (late upon which the one referee chosen by
Landowner and City agree to serve and in fact begins serving, the Orange County Superior Court
Judge sitting as the writs and receivers judge shall be (he referee for the purposes of issuing all
orders in any proceedings hereunder. Any referee selected pursuant to this Section shall be
considered a temporary judge appointed pursuant to Article 6, Section 21 of the California
Constitution. Immediately upon the service ofa complaint that is subject tojudicial reference, as
set forth above, counsel for Landowner and City shall be obligated to cooperate in good faith to
select and formally retain the services of a referee, in writing, through the services of the Judicial
Arbitration and Mediation Service. If Landowner and City are unable to agree on the identity of
a relbree within tell (10) clays of the service of such a complain(, either Party may seek to have
one appointed pursuant to California Code of Civil Procedure Section 640. The cost of such
reference proceeding shall initially be borne equally by the Parties, but the prevailing party shall
Ultimately be awarded a judgment for its share of such costs.
8.2 Default by Landowner.
If Landowner is alleged to have committed a non - monetary Default and it disputes the
claimed Delitnit, it may make a written request for an appeal hearing before the City Council
within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at
the nest available City Council meeting to consider Landowner's appeal of the Notice of
Default. Failure to appeal it Notice of' Deftmlt to the City Council within (he ten (10) day period
shall waive any right to a hearing on the claimed DCftwlt. If Landowner's appeal of the Notice
of Default is timely and in good faith but afier a public hearing of Landowner's appeal the City
Council concludes that Landowner is in Default as alleged in the Notice of Deliwlt, the accrual
date for commencement of the thirty (30) clay Cure Period provided in Section 8.1 shall be
extended until (he City Council's denial of Landowner's appeal is communica(ed in writing to
Landowner.
i IM667s i.11nvi
31121X44.12 AN 13/12 29
8.3 City's Option to Terminate Agreemenl
In file event of an alleged Landowner Default, City may not terminate (his Agreement
without first delivering a written Notice of Delitult and providing Landowner with the
opportunity to cure the Dclaull within the Cure Period; as provided in Section 8. 1, and
complying with Section 8.2 if' Landowner timely appeals any Notice of Delitult with respect to a
non- monetary Default. A termination of' this Agreement by City shall be valid only if good
cause exists and is supported by evidence presented to the City Council at or in connection with
a duly noticed public hearing to establish the existence of it Default. The validity of any
termination may be judicially challenged by Landowner. Any such judicial challenge must be
brought Within sixty (60) days of service on Landowner, by personal delivery, delivery by a
reputable overnight delivery service (such as Federal Express) that provides a receipt confirming
delivery, or by certified mail, return receipt required, of written notice of termination by City or a
written notice of City's determination of an appeal of the Notice of Dclaull as provided in
Section 8.2.
8.4 Default by City
If Landowner alleges a City Default and alleges that the City has not cured (he Default
within the Cure Period, Landowner may; in accordance Nvith the provisions in Section 8.3 above,
pursue any equitable remedy available to it under this Agreement, including, without limitation,
an action 1'or a writ of mandamus, injunctive relief, or specific performance of City's obligations
set forth in this Agreement. Upon a City Default, any resulting delays in Landowner's
performance hereunder shall neither be a Landowner Default nor constitute grounds for
termination or cancellation of this Agreement by City and shall, at Landowner's option (and
provided Landowner delivers written notice to City within thirty (30) days of the commencement
of the alleged City Default), extend the Term for a period equal to (he length of tile delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Duc to the size; nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre- existing condition once implementation of this Agreement hais
begun. After such implementation, both Landowner and City may be foreclosed from other
choices they may have had to plan for the development of the Properly, to utilize (he Properly or
provide for other benefits and alternatives. Landowner and City have invested significant time
and resources and performed extensive planning and processing of (he Project in agreeing to the
terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement. It is not possible to
determine the sum of money which WoUld adequately compensate Landowner or City for such
efforts. For the above reasons, City and Landowner agree that damages would not be an
adequate remedy if either City or Landowner fails to carry out its obligations under this
Agreement. Therefore, specific performance of this Agreement is necessary to compensate
112//1 L11
6675 6qu
71121 S44. 12 :416113112 30
Landowner if City tails to carry out its obligations under this Agreement or to compensate City it
Landowner lalls to carry oul its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party or for any acts or omissions by a Party arising out of
(his Agreement; provided, however, that (i) nothing in this Section 8.7 is intended or shall be
interpreted to limit or restrict City's right to recover the Public Benefit Pees, Landowner's MIX,
fair share traffic fee for City's construction of Witff Road from 17i1' Street to 19 °' Strect in
accordance with Section 3.4 (if applicable), and the Fire Station No. 2 fee at such time that said
fees are doe liom Landowner as set forth herein; and (ii) nothing in this Section 8.7 is intended
or shall be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or
(he right of the prevailing Party in any Action to recover its litigation expenses, as set fbilli in
Section 8.10.
8.8 Additional Citv Renledv for Landowner's Default
In the event of any Default by Landowner; in addition to any other remedies which may
be available to City, whether legal or equitable, City shall be entitled to retain any Development
Exactions applicable to the Project or the Properly, including any fees, grants, dedications, or
improvements to public property which if may have received prior to Landowner's Default
without recourse fiom Landowner or its successors of assigns.
8.9 NO Personal Liability of City Officials, Employees, or Agents or Landowner Members,
Managers, Employees, or Agents.
No City official, employee, or agent and no member, manager, officer, employee, or
consuhan( of Landowner or of any of Landowner's respective members shall have any personal
liability hereunder fora Default by City or Landowner, as applicable, of any of its obligations set
forth in this Agreement.
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.
In anyjudicial proceeding, arbitration, or mediation (collectively, an "Action ") between
(he Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' tees, and costs of investigation and preparation
before initiation of the Action. The right to recover These costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
9. Force Maieure
Neither Par(y shall be cleemed to be in Dclault where lailure or delay in performance of
any of its obligations under (his Agreement is caused, through no fault of the Party whose
performance is prevented of delayed, by hoods, earthquakes, other acts of God, fires, wars, riots
113/060751 0090 3
.1021811.12 u0NUV12
of similar hostilities, acts of terrorism, strikes or other labor difficulties, stale or federal
regulations, court actions, acts or omissions of the other Party, third party lawsuits, initiatives,
and referenda. Except as specified above, nonperformance shall not be excused because of' the
act or omission of a third person. In no event shall the occurrence of an event of force majeure
operate to extend the deadline tier commencement of the Term of this Agreement or the
Termination Date. In addition, in no event shall the time for performance of it monetary
obligation, including without limitation Lan downer's obligation to pay Public Bencl9t Pees, be
extended pursuant to this Section.
10. Indemnity Oblieations of Landowner
10.1 Indemnity Ariskm From Acts or Omission of Landowner
Except to the extent caused by the intentional misconduct or gross negligence of-City or
one or more of City's officials, employees, agents, attorneys, lessees, or contractors (collectively,
"City's Affiliated Partics"), Landowner shall indemnify, defend, and hold harmless City and
City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties,
obligations, and expenses (including but not limited to attorneys' fees and costs) that may arise,
directly or indirectly, from the acts, omissions, or operations of Landowner or Landowner's
agents, contractors; subcontractors; agents, or employees in the course of Development of the
Project or any other activities of Landowner relating to the Properly or pursuant to this
Agreement (collectively, a "Claim "). City shall have the right to select and retain counsel
reasonably acceptable to Landowner to defend any Claim filed against City and /or any of City's
Affiliated Parties, and Landowner shall pay the reasonable cost for defense of any Claim, but in
any event Landowner shall only be obligated to pay the fees and costs crone counsel irrespective
ofany actual or perceived conflict of interest among the City's Affiliated Parties. The indemnity
provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Litivation
In addition to its indemnity obligations set forth in Section 10.1, Landowner shall
indemnify, defend (with one counsel selected by City and reasonably acceptable to Landowner,
irrespective of any actual or perceived conflict of interest among the City's Affiliated Parties),
and hold harmless City and Ciq,'s Affiliated Panics ham and against any Claim against City or
City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of Ihis
Agreement, the Adopting Ordinance, any of the Development Regulations for the Projcct
(including without limitation any actions taken pursuant to CEQA with respect thereto), any
Subsequent Development Approval, or the approval of any permit granted pursuant to this
Agreement. Said indemnity obligation shall include payment of reasonable attorney's fees,
expert witness fees, and court costs. City shall promptly notify Landowner of any such Claim
and City shall cooperate with Landowner in the defense of such Claim. If City fails to promptly
notify Landowner of such Claim, Landowner shall not be responsible to indenwify, defend, and
hold City harmless Prom such Claim until Landowner is so notified aid il'City fails to cooperate
in the defense of a Claim Landowner shall not be responsible to defend, indemnify, and ]toll
harmless City during the period that City so fails to cooperate or for any losses attributable
thereto. City shall be entitled to retain separate counsel reasonably acceptable to Landowner to
represent City against the Claim and the City's defense costs for its separate counsel shall be
112,116675 1-0090 32
.W2 IS 1.1.12 a00/ I3/ I2
included in Landowner's indemnity obligation, provided that such counsel shall seasonably
cooperate with Landowner in an effort to minimize the total litigation expenses incurred by
Landowner. In the event either City or Landowner recovers any attorney's fees, expert witness
fees, costs, interest, or other amounts fiom the party or parties asserting the Claim, Landowner
shall be entitled to retain the same (provided it has fully performed its indemnity obligations
hereunder). The indemnity provisions in this Section 10,.2 shall commence on the Agreement
Date,, regardless of whether the Effective Date occurs,, and shall survive the Termination Dale.
103 Environmental Indemnity.
In addition to its indennily obligations set forth in Section 10.1, fi-om and after the
Agreement Date Landowner shall indemnify, defend (with one counsel selected by City and
reasonably acceptable to Landowner, irrespective of any actual or perceived conflict of interest
among the City's Affiliated Par(ies), and hold harmless City and City's Affiliated Parties tiom
and against any and all third party Claims filed against City and /or City's Affiliated Parties for
personal injury or death, property damage, economic loss, statutory penalties or tines, and
damages of any kind or nature whatsoever, including without limitation reasonable attorney's
fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the
actual or alleged presence of any Hazardous Substance on or under any of the Property in
violation of any applicable Environmental Law; (ii) the actual or alleged migration of any
Hazardous Substance from the Properly through the soils or groundwater to a location or
locations off of the Property; and (iii) the storage, handling, transport, or disposal of any
Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or
developed by Landowner in connection with Landowner's Development of (he Project. The
Foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored oil
a separate legal lot within the Property alter the Lot Termination Date for said lot, as provided in
Section 2.4 of this Agreement.
\btwithstanding any provision set forth in this Section 10.3 to the contrary, Landowner's
obligation to indemnify, defend, and hold harmless City and City's Affiliated Parties with
respect to Environmental Laws and Hazardous Substances shall not apply to any Claims arising
out of the actual or alleged acts or omissions of any person or entity other than Landowner or any
of Landowner's members, directors, officials, employees, agents, attorneys, lessees, or
contractors (collectively, "Landowner's Affiliated Parties ") with respect to oil drilling or
extraction operations conducted by, on, or from (he non - contiguous portion of the Oil Well
Operational Area comprised of approximately 7.219 acres of land area that is closest to Pacific
Coast Highway and has been under City's control for a number of years prior to the Agreement
Date.
The indemnity provisions in this Section 10.3 shall commence on the Agreement Date;
regardless of whether the Effective Date occurs, and shall survive the Termination Date.
II. Assignment.
Landowner shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer ") Landowner's fee title to the Property, in whole or in part, to a Permitted Transferee
(which successor, as of (he effective date of the Transfer, shall become the "Landowner" tinder
this Agreement) at any time from the Agrcemenl Date until the Termination Date; provided,
1111116675 0090
31)21844.12 A6113112 33
however, that no such Transfer shall violate the provisions of the Subdivision iNdap Act
(Government Code Section 66410 ct seq.) or City's local subdivision ordinance and any such
Transfer shall include the assignment and assumption oP Landowner's rights, duties, and
obligations scl firth in or arising under this Agreement as to the Properly or the portion thereof
so Transferred and shall be made in strict compliance with the lollowing conditions precedent:
(i) no transfer or assignnieiit of any of Landowner's rights or interest rider this Agreement shall
be made unless made logcther with the Transfer of all or a part of the Property; and (ii) prior to
the efPeclivc date ol' any proposed Tiansler, Landowner (as transferor) shall notify City, in
writing, of such proposed Transfer and deliver to City a written assignment and assumption,
executed in recordable firm by the transferring and successor Landowner and in a Porn subject
to the reasonable approval of the City Attorney of City (or designee), pursuant to which the
transferring Landowner assigns to the successor Landowner and the successor Landowner
assumes from the transferring Landowner all of the rights and obligations of the (ransferring
Landowner with respect to the Properly or portion thereof to be so Transferred, including in the
case of a partial Transfer the obligation to perform such obligations that must be performed off
of file portion of the Property so Transferred that are a condition precedent to the successor
Landowner's right to develop the portion of the Property so T ansferied. Any Permitted
"fi-ansferee shall have all of the same rights, benefits, duties, obligations, and liabilities of
Landowner under this Agreement with respect to the portion of the Property sold, transferred,
and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of
less than all of the Property no such Permitted Transferee shall have the right to cnler into an
amendment ol'this Agreement thatjeopardizes or impairs the rights or increases the obligations
of tile Landowner with respect to the balance of the Property.
Notwithstanding any "fransler, the transferring Landowner shall continue to be jointly
and severally liable to City, together with the successor Landowner, to perform all of the
transferred obligations set forth in or arising under this Agreement unless there is full satisfaction
of all of the following conditions, in which event the transferring Landowner shall be
automatically released From any and all obligations with respect to the portion of the Property so
Transferred: (i) the transferring Landowner no longer has a legal or equitable interest in the
portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the
transferring Landowner is not then in Default under this Agl "cement and no condition exists that
with the passage of time or the giving of notice, or both, would constitute a Default hereunder;
(iii) the transferring Landowner has provided City with the notice and the fully executed written
and recordable assignment and assumption agreement required as set forth in the first paragraph
Of this Section 11; and (iv) the successor Landowner either (A) provides City with substitute
security equivalent to any security previously provided by the transferring Landowner to City to
secure performance of the successor Landowner's obligations hereunder with respect to the
Properly or the portion of the Property so Transferred or (f3) if the transferred obligation in
question is not a secured obligation, the successor Landowner either provides security reasonably
satisfactory to City or otherwise denionstrates to City's reasonable satisfaction that the successor
Landowner has the financial resources or commitments available to perform the transferred
obligation at the time and in the manner required under this Agreement and the Development
Regulations for the Project.
12. \4orteaccc Riehls
12.1 Encumbrances on Prooerhy.
I I VM675 i -11nvn 34
71121$44.12 WNIP12
The Parties agree dial this Agreement shall nod prevent or limit Landowner in any manner'
front encumbering the Properly, any part of the Property, or any improvements on the Property
with any Mortgage securing financing will) respect to the consUVCtion, development; use, or
operation ofthe Prgject.
12.2 iylorlgaeee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of' this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Properly or part of the Property by a r \4ortgagce (whether (IuC to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall he subject to all
of the terms and conditions of this Agreement. Any Mortgagee who lakes title to the Property or
any part of the Property shall be cuddled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, it Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Landowner or
other affirmative covenants of Landowner, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop file Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Landowner is a conclition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee: Right of Mortgakee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of (i) the results of (lie periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Landowner of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, bill not an obligation, to cure the Default
within thirty (30) (hrysafter receiving a Notice of Default with respect to a monetary Default and
within sixty (60) days alter receiving a Notice of Default with respect to a non - monetary Defmlt.
If Mortgagee can only remedy or cure a non - monetary Default by obtaining possession of the
Property, then the \'lorlgagcc shall have file right to seek to obtain possession with diligence and
continuity through a receiver or otherwise, and to remedy or cure the non - monetary Default
within thirty (30) clays alter obtaining possession and, except in case of emergency or to protect
the public health or salety, City may not exercise any of its judicial remedies set forth in this
Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of said
cure period. In the case of a non - monetary Default Thal cannot with diligence be remedied or
cured within said cure period, the I \4ortgagee shall have additional time as is reasonably
necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure
the non- mooetary Default within sixty (60) days and diligently prosecutes the cure to
completion.
13. Miscellaneous Terms
13.1 Notices.
112106675 1.001) 3 5
31121YJJJ2 W.11 3112
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. I f the notice or demand will be served upon a Party, it either shall
be personally delivered to the Parr; deposited in the United States mail, certified, relurn receipt
requested, and postage prepaid; or delivered by it reliable courier service that provides a receipt
showing date and lime of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
O CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
With a copy lo: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
TO LANDOWNER: Aera Energy LLC
Attn: Newport Banning Ranch LLC
3030 Saturn Street, Suite 101
Brea, California 92821
Attu: George L. Basye
TO LANDOWNER: Cherokee Investment Partners
Attn: Cherokee Newport Beach, LLC
I 1 I E. Hargett Street, Suite 300
Raleigh, NC 27601
Ann: Bret Batchelder
With acopy lo: Newport Banning Ranch LLC
1300 Quail Street, Suite 100
Newport Beach, California 92660
Attn: Michael A. Mohler
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in (his Section 13. 1, and thereaHer notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of.- (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Peet as Private Undertaking.
The Development of the Projecl is it private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
1� 2/06975 1.00911 36
3p? 1 S44.12 00611 R 12
parniership,.loiIII venture. or other association orally kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of (he property.
13.3 Cooperalion.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any lime, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and tike or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
13.4 E "stol)ml Certificates.
At any lime, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, Willis Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications, and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe file natuu'c and amount of the actual or
prospective Default. Such estoppel certificates may be relied upon only by the Parties, their
respective successors and assigns, and, in the event of an estoppel certificate issued by City, a
Mortgagee of Landowner, including a Permitted Transferee and its actual or prospective
Mortgagee. City shall be entitled to payment /reimbursement for its actual and reasonable costs
of investigation and preparation ofan estoppel certificate prior to issuing the same.
"file Party requested to furnish an estoppel certificate shall execute and return the
cerfificale within thirly (30) days following receipt (assuming, in the case of an estoppel
certificate to be issued by City, Landowner has paid City the cost thereof, as provided above).
13.5 Roles ofConstruclion.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
13.6 Time Is of the Essence.
Time is or the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The Ihilurc by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Dcfaulf by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the fuuue.
11 211,66751-0090 37
3O2 IN' 11. 12 x06113/12
13.8 Counlerharts
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be inhnduced in evidence or used lot- any other purpose without any other
Coll nlerparl, bill all oflwhich shall together constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
13.10 Severability.
The Parties intend that each and every obligation of (he Parties is interdependent and
interrelated with (he other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall he held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of (he
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Patty of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Landowner shall not receive any
of the benefits of (his Agreement if any of Landowner's obligations are tendered void or
unenforceable as the result of any third party litigation, and City shall be tree to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Landowner shall cooperate as required, despite this Agreement; should third party litigation
result in the nonperformance of Landowner's obligations under this Agreement. The provisions
of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
13.11 Construction
This Agreement hats been drafted after extensive negotiation and revision. Both City and
Landowner are sophisticated parties who were represented by independent camsel throughout
the negotiations or City and Landowner had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Landowner each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption Ofcontracl construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against either Party.
13.12 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure lo, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with (lie
land. Each covenant to do or retrain from doing some act hereunder with regard to Development
of the Property: O is for the benefit of and is a burden upon every portion of the Property; (ii)
runs with the Properly and each portion thereof; and (iii) is binding upon each Party and each
1 12/066951 -0090 3 s
3021 &11.12016!13/12
successor in interest during its ownership of the Property or any portion thereof. Every person or
entity who now or later owns or acquires any right title, or interest in any part of the Projcct or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Landowner. This Agreement does not
invoke any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Lkj)plicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of' California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Cenfral District of California. 'file Parties waive all provisions of law providing for the
removal or change of venue to any other court.
13.15 Section I- leadint's.
All section headings and subheadings arc inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESIGN TATION
DESCRIPTION
A
Legal Description of Property
B
Depiction of the Property
B -1
Depiction of County Property
13.17 Recordation.
1 11106675 1 MOO 39
)in- ISdJ.I3 a06031R
'file City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65865.5 and City of Newport
Beach iN4uniciptd Code scetion 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[SIGNATURE PACE FOLLOWS]
1 12,416675 140190 �i
9W 1%.61.12 OX4U, R U 0
SIGNATURE PAG E TO
ZONING IMPLLNIL\ITATION AND PUBLIC 111KNE, IT SPACE AGREENTENT
"LANDOW \'ER"
AL -'RA ENERGY LLC,
a Calilornia limited liability company
Its:
By:
Its:
CHL'-ROKEE NEWPORT BEACH, LLC, a
Delaware limited liability company
Its:
Its:
"CITY"
CITY OF NEWPORT BEACH
By:
[Is: \Mayor
ATTEST:
City Clerk
APPROVED AS TO FOM M:
Aaron Harp, City Attorney
I ID)6675I 00911 M
1112, IS -14,12 ;0J61131 12
S 'f A'fL OF CALIFORNIA
COU7\1'I')' OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally kno� n
to ntc to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in (heir authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrumenl.
Witness my hand and official seal.
Notary Public in and for
said County and Stale
STATL OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
112!066]31- (1090 -�2-
11213Id.I2.06113/12
STATE OF CA.LIFOR\IIA
COUNTY OF ORANIIGE
On , before mc, the undersigned, a Notary Public in and Ior said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their aulhori-red capacities and that by their signature oil the
instrument the persons, or the MAY upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to n7e to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and IN
said County and State
1121066751-10'10
AQ MUAMM12
-43-
STATE OF CAUFORN A
COUNTY OF ORANGE
On , before me, the uncicrsigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
inshument the persons, or the entity upon behalf' of which the persons acted, executed the
instrument.
\Vitness my hand and official seal.
Notary Public in and for
said County and Statc
112,4166]31 -0090
30 *M& I2 MON12
Sn161 1 &r6; L
-44-
EXHIBIT' A
LEGAL DESC12113T'ION OF PROPERTY
Real propelty in [Ile rif tl;e County of Orarlq ?, State of California, LIEsabl d
as lollovl: :
PARCEL 1:
A PORTION OF LOTS "B" "C" AHD "C ', ALL IN THE 6AMf%I id(_, TRACT, AS SHOWN O11 A MAP OF
SAID TRACT FILED 111 THE CASE C)F HANCOCK BANNING AND OTHERS VS. MARY H. BANNIf -116,
FOR PARTITION, BEIPIG CASE 11(). 6395 UPON THE REGISTER OF ACTIOPIS OF THE SUPERIOR
COIJRT OF LOS ANGELES COUNTY, CALIFORNIA, All[) A. PORTION OF RANCHO S,ANTIAG0 DE
SANTA. ANA, DESCRIBED IN BOOK 3, PAGE 387 OF PATENTS, RECORDS OF LOS ANGEL ES
COUNTY, CALIFORNIA, DESCRIBED A", FC )LLC NS:
BEGINNIING- AT A. POINT ON THE B( ?I NDARY UP!E SEETVJEEI I LOTS "A" AND "B.' OF SAID
6A11',IING TRACT, WHICH PON IT IS THE POINT OF INTERSECTION OF THE CENTER UNE OF
NINETEENTH STREET AND THE NORTHVIESTERLY UNE C)F THE FIRST ADDITION TO THE
HE%NPORT MESA TRACT, AS SHC)',i%-M ON A.'MAP RECORDED IN BOOK 8, PAGE r.I OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALFORNIA; THENCE SOLITH F,9
DEGREES 21: 5 ' VIEST ALOPIG THE NORTHERLY LINE OF SAID LOT "S ", 3315.29 FEET TO THE
NORTHWESTERLY CORNER OF LOT "B" OF SAID BANNING TRACT; THENCE SOUTHERLY ALONG,
THE WESTERLY BOCIND,ARY Ui -!E OF LOT "B" Or F SAID BANNING TRACT, THE FOLLC1WING
COURSES P.i -JD DISTANCES: SC )UTH 1 DEGREE _5%'-'EST 462.00 FEET; THEP-ICE SOUTH J4
DEGREES 1 7j' WEST 41-2.95 FEET; THENCE SOI ITH 6 DEGREES 15' EAST 1058,48 FEET; THENCE
SOUTH 19 DEGREES 4 WEST 529.21 FEET; THENCE SOUTH 34 DEGREES 30' WEST 463.08
FEET; THENCE SOUTH 42 DEGREES 45' 6"i EST 3'J7.o) FEET; THENCE SQLITH 4 DEGREES 45'
WEST 462.0D FEET; THENCE S(--)I ITH 21 DEGREES 15' WEST 19S.5D FEET TO THE SOL ITHVIEST
CORNER OF LOT "B ", AS SHOWN ON SAID MAP OF THE BANNING TRACT, WHICH CORNER IS
ALSO STATION NO. 149 OF THE BOUNDARY Ui-E OF RAi -!(-HC) SAI11TiA(-,0 DEC SANTA ANA, .AS
DESCRIBED IN BOOK 3, PAGE 337 OF PATIENTS, RECORDS C)F LOS ANGELES CC IUNTY,
CAUFC )RNIA; THEPICE SOUTH 7/2 DEGREES 51' 36" EAST SD7.47 FEET TO A POINT WHICH
BEARS NORTH 21) DECREES 32' 44" EAST G06.79 FEET FRO - -I THE PCIIhIT C)F IPITERSECTIOI•I OF
THE CENTER LINE OF THE SAi-JT.A .APIA RIVER, AS SHOVVPI ON THE MAP FILED IN AMC)
ANNEXED TO THE COMPLAINT IN THE CASE OF J. B. BAi- NI19G JR. VS. L+11TH AND OTHERS,
BEING CASE NO. 22797 OF THE SUPERIOR COURT OF THE STATE OF CA.UFORN!IA, IN AND FOR
ORANGE COUNTY, A COPY OF THE JUDGMENT C)F SA.ID CASE NO, 22797 HAVING BEEN
RECORDED JULY 19, 1929 IN BOOK 297, FACE 71; OF OFFICIAL RECORDS; NvITH THE
SOUTHEASTERLY UNE OF SUIMMIT STREET, 30 FEET IN V IDTH, AS SHOV 1 ON A MAP OF EL
140RO TRACT RECORDED IN BOOK 8, PAGE 75 OF MISCELLANEOUS i -IAPS, RECORD' :1 OF
ORANGE COUNTY, CALFORNIA; THENCE EASTERLY, NORTHEASTERLY AND SOUTHEASTERLY,
PARALLEL WITH THE SAID CENTER UNE OF THE SAI -ITA APIA RIVER AND Coo,DD FEET DISTANT
THEREFROM, MEASURED AT RIGHT ANGLES THERETC ), THE FOLLCAVING COI IRSES AND
DISTANCES: SOUTH 78 DEGREES (12' EAST 486.60 FEET; THENCE SC)LITH 66 DEGREES 42' 20'
EAST 517.33 FEET; THENCE NORTH 2u DEGREES utY 15" EAST 339,49 FEET; THENCE NORTH 51
DEGREES 49: EAST 405.76 FEET; THENCE NORTH 74 DEGREES 07' EAST 722.86 FEET; THENCE
SOUTH 45 DEGREES 20' 28" EAST 7411.97 FEET; THENCE SOUTH 27 i)EGREES 4G' EAST x9£..37
FEET; THENCE SOUTH 13 DEGREES 35' 41" EAST 920,19 FEET; THEPICE SOUTH 1 DEGREE 38'
25" WEST 871.22 FEET TO .A PC)INT IN A LINE 6000.011 FEET i JC)RTHERLY OF AND PARALLEL
`d +'ITH THE NORTHERLY LINE OF THE ION -FOOT RIGHT OF l "JAY OF THE CAUFC )RNIA STATE
HIGHIYVAY, AS DESCRIBED IN DEED RECORDED APRIL 20, 1936 119 BOOK 822, PAGE 48 OF
C )FFICIAL RECORDS; THENCE SOUTHEASTERLY, PARALLEL 1 °;:ITH THE i•!C)RTHERLY AND
112;069751.0090 1
70118.1112 A611 3112
NORTHEASTERLY LINE OF SAID CAUR RIAA STATE HIGFI4 "rAY, THE FOLLOMIING. (= C)URSES
Al ID OISTANCES: THENCE SOUTH 53 DEGREES 1 EAST 325:62 FEET TO THE BEGININIIN!G OF A.
CURVE TO THE RIGHT; THENCE SOUTHEASTERLY ALONIG A CURVE CC )idC.AVE TO THE
SOUTHWEST, HAVING A RADIUS OF 1650.110 FEET ANID TAN ( -IT TO THE LAST i-IENTIC >i'!ED
C(JURSE, A Di`- ,T.AP!(:E OF 500.12 FEET; THENCE SOUTH ry5 DEGREES S6 EAST, TAd'!GEMT TC)
SAID CURVE, 667.15 FEET TO THE BEGII II'11NIG OF A CURVE TO THE RIGHT; THENCE
SOUTHEASTERLY ALONG, A CURVE C0i9(_AVE TO THE S UTH'VIEST AND HAVIN C, A RADII IS OF
1650,00 FEET AND TANGEI-IT TO THE (LAST MEN!TIC)N ED COURSE, A DISTANCE OF 48.34 FEET
TO .A POINT IN THE SOLITHERLI' F'ROLOFIGATIOP! OF THE EASTERLY UNE OF \VHITTIER
AVENUE (i.0 FEET III WIDTHI, AS SHOVsRd ON A I'tIAP OF THE NEWPORT MESA TRACT
RECORDED IN BOOK 5, PACE 1 OF i41SCELIAMEOUS MAPS, RECORDS OF ORANGE CC)LIN!T•r,
CAUFOR IA, A RADIAL UPIE FROM SAJD POINT REARS SOUTH 25 DEGREES 44' 43" WEST;
THENCE NORTH a DEGREES 36' (11 " !'JEST ALOI.J(:, THE SAID PR(_.)LON( ATIC)N OF VJHITTICR
AVEMLIE, 3061.05 FEET TO A POIIIT IN THE S()LITHV.1ESTER1_Y UNE OF SAID FIRST ADDITION
TO I`IE%NPORT MESA TRACT; THENCE P!C)RTH 29 DEQ BEES 24' 45" V;'EST ALONG THE
SOUTFMIESTERLY LINE OF SAID FIRST ADDITION TO THE NIEVv'PORT MESA TRACT, 2706.70
FEET TO THE MUST WESTERLY CORNER � �F SAIC) FIRST ADDITiO! TO THE I IB:bVP(--)RT MESA
TRACT; THENKE NORTH 19 DEGREES 01' S5" EAST A:_OrdG THE NORTHV:+ESTERLY UNE OF THE
LAST MENTIONED TRACT, IU65.62 FEET TO THE POIIJT OF F.F(ANNING.
EXCEPTING THEREFROM, THAT PORTION OF LOT "B" OF SAID BANNING TRACT DESCRIBED AS
FC)LLO1•'i5: BEGININIING AT A P( DINT IN THE EASTERLY LINE OF THE 300 -PC)OT STRIP OF LAND
FOR SANTA ANA RIVER CHANNEL, AS DESCRIBED IN THE DEED TO THE N1EWBERT
PROTECTION DISTRICT, RECORDED JUNE 22, 1'111 IN BOCX 197, PAGE 3110 OF DEEDS,
ORANGE COLINITY,''WHICH POINT IS NORTH 71 E)EGRCES 20' EAST 510.47 FEET FROM THE
SOUTHWEST CORNIER OF SAID LOT "B" VMICH LAST NIENTIONIED CORNIER IS ALSO STATION
149 OF THE RANCHO SANTIAGO DE `,ANT.A ANA; THENCE NIORTH 13 DEGREES 25 EAST ALUPIG
THE EASTERLY LINE OF SAID 300 -F( )OT STRIP OF LAND, 660 FEET; THENCE SOUTH 76
DEGREES 3 EAST 660 FEET; THENCE SOUTH 13 DEGREES 25 WEST 6(;.0 FEET; THENCE
MORTH 76 DEGREES 35 WEST 6C.0 FEET TO THE POINT OF BE<;IPINIP!G, AS CONDENINIED BY
THE CITY OF NR;)PORT BEACH IN! THE A(-Ti(--)hd NTITLED "CITY OF NEL4,1PORT BEACH, A
MUNICIPAL CORPI)RATI01% PLAINTIFF VS. TC A19,ISEi•1D LAND COMPANY AND OTHERS,
DEFENDANT, ", BEING CASE NO. 34747 OF THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA, IN AND FOR ORANGE COUNTY, A CERTIFIED COPY OF THE FINAL JIJOGHENT
HAVINdG BEEN RECORDED AUGUST 20, 1937 111 BO(--), 911), PAGE 19 OF OF FICIAL RECORDS OF
GRAN( =,E COUNTr.
ALSO EXCEPTIiG THEREFROM, THAT PORTION OF LOT "B" IN SAID MINIM(-, TRACT
OIIVEY`D BY THE TOV %INISEi'!D LAND COMPANY TO THE NEWBERT PROTECTION! DISTRICT
FOR A RIVER CHANNEL, 3011 FEET WIC:E, BY DEED RECORDED JUNE 22, 1911 IN BOOK 197,
PAGE 300 OF DEEDS, ORAid(.,E COUNTY; DE,CRIN-ED AS FOLLOV;iS;
CON1t4ENCIPIG AT A PC)INIT IN THE SOUTHERLY LINE OF SAID LOT "B" OF THE B.AN:MINIG
TRACT, SOUTH 84 DE( =REFS 45' EAST 135.:.4 FEET DISTANT FROM THE SOUTHV.JESTERLY
CORNER OF SAID LOT "P" V-MICH CORNER IS AL,C) STATION 14:1 OF THE RANCH:) ;AMTiAGO
DE SANTA ANA; THENCE NORTH i3 DEGREES 25' EAST ALONG THE WESTERLY SIDE OF SAID
300 -FO0T RIGHT OF WAY, 946.75 FEET TO A POINT IN THE WESTERLY UNIE OF SAID LOT "B ";
THENCE AL(')(;I:_ THE WESTERLY U111E OF SAID LOT "B ", NORTH 42 DEGREES 45' EAST 38.7(
FEET TC) AN ANGLE IM SAID WESTERLY UNE; THENCE NORTH 34 DECREE-`• 30' EAST 4;,2.0!1
FEET TO AN ANGLE IN! ,:AID WESTERLY UNE; THENCE NORTH 19 DEGREES 45' EAST 525.00
FEET To A,I'I ANGLE IN SAID WESTERLY LINE: THENCE STILL ALONG SAID WESTERLY LIME,
NORTH 6 DEGREES 15' b" ?EST 723.17 FEET TO .A POINT IN THE WESTERLY UPIE OF SAID 300 -
FC)(--)T RIGHT :)F 'V -M.Y; THcf ICE MC)RTH ) 3 DEGREES 25' EAST ALONG THE WESTERLY LINIE OF
11 oasis 1.00911
., 21 84.1.12 a06113112
SAID RIGHT OF %VA"Y, 6117.27 FEET TJ A PCYHT IPd THE 'al /ESTERLY Ur-IE OF SAID LOT "B ";
THENCE ALONG THE :'JESTERLY UNE OF SAID I_C1T "B ", PIORTH 34 DEGREES 15' EAST 1 =8.48
FEET TO AI'4 AN(—,LE IN SAID LIME; THENCE ' ORTH 1 DEGREE 45' EAST 436.44 FEET TO THE
PIORTWIEST CORPIER OF SAID L(--IT "B"; THENCE ALONQ, THE NORTHERLY LINE OF SAID LOT
°B" NORTH 89 DEGREES 28' EAST - Ab.'_- FEET TO A. POINT IN THE EASTERLY LINE )F SAID
300 -FOOT RIGHT OF �VA1'; THENICE SC)UTH 13 DEGREES 25' WEST 3831.55 FEET TO THE
SOUTHERLY LINE OF SAID LOT "B'; THENCE ALONG THE SOUTHERLY UNE OF SAID LOT "B ",
M IRTH 84 DEGREES 45' %VEST 3!'3.: FEET TO THE POINT OF C(-.WI 'IEPICEI'•IEf•IT.
ALSO EXCEPTING THEREFRC )P9, THE PORTIOPIS THEREOF INCLUDED I;VITHIN A STRIP OF LAND
3U FEET IN WIDTH, THE [ENTER UNE OF l'iH1l =H IS DESCRIBED AS FOLLOI'J`-,: 6-i�iNNING AT
THE POINT WHERE THE EASTERLY BOUNDARY LINE OF THE RANCHO LAS 80LS.AS BE- P.-VEEN
STATIC )NS 78 AND 79 C)F THE SAID BC )UMDARY LINE IS INTERSECTED BY THE UNE 1VHICH
BEARS NORTH 13 DEGREES 26' 3i I" EAST FROI'l THE POINT ON THE S()I -ffH UNE OF SECTION
10, TOl% (SHIP 6 SOUTH, RAf,!GE 10 WEST; S.AM BERNARDINO BASE AND MERIDIAN, 2294.92
FEET hdORTH 09 DEGREES 38' EA.ST FRO;.I THE SOUTH QUARTER SECTICaPI CORNER OF SAID
SECTION, SAID BEGINNING POINT BEIPN; ON THE SURVEYED CENTER LINE OF THE SAI'ITA
ANA- AMAHEIlol JOINT OLffFALL SEI,','ER; THENCE FROI °1 SAID POINT OF BEGINNING., SCUM 13
DEGREES 26' 30" WEST AL(-)hdG SAID CENTER L10F TO STATION 187 +74.4:1, BEING THE ,-'Oif•]T
Oid THE SOUTH UNE OF SAID SE( TIC )N 1 t, 229;.92 FEET NORTH 8'9 DE(--.REE` -, 38' EAST FROM
THE SOUTH QUARTER CORNER OF SAID 1,ECTTC -)i9; THENCE CC)hlTIPILIIidG SOUTH 13 DEGREES
26' 30" %VEST ALONG SAID SURVEYED CENTERLINE, 2795.66 FEET TO STATION 215 +70.15;
THENCE SOUTH 16 DEGREES 27' 311" (NEST ALONG SAID CENTER 111,115, 1050.35 FEET TO A
POINT 1530 FEET SOUTH 84 DE(_ REES 45' ?.ST FRC)f*.l STATIOI.1 11-8 OF THE RAP!CHO LAS
BOLS.AS, TOGETHER WITH THE STRIP OF LAND OF VARYING Y,'IDTHS LYING BET1',1EEN THE
EASTERLY LINE OF THE ABOVE DESCRIBED 30 -FOOT STRIP AND THE WESTERLY UNE OF THE
RIGHT OF WAY OF THE SAr-ITA ANA RIVER THROUGH THE I•!E;' +BERT PROTECTIOI'd DISTRICT,
AS CONVEYED TO THE CITY OF SANTA APIA BY DEED RECORDED APRIL 14, 1934 IN BOOK 6711,
PA61E 147 OF OFFICIAL RECORDS, Owl IGE CC)UNTY.
ALSO EXCEPTING THEREFROM, THAT PORTION OF SAID LAND INCLUDED VdITHIl,! A STRIP OF
LAND 100 FEET V,'IDE, DESCRIBED AS PARCELS D3 -121.1 A.i•lD D3 -122.1 I1,! THE FINAL ORDER
OF COMDEIANATIOPI RENDERED JANUARY 26, 1962 IN THE SUPERIOR Cs )LIRT OF THE STATE
OF C'AUFC )RNIA, IN AND FOR THE COUNTY C)F C)R AGE, IN THE r'.CTIOiJ ENTITLED "ORANGE
COUNTY FLOOD CONTROL DISTRICT VS. C iTy OF I•IEVJPORT BEACH, AND C)THERS" (CASE NO.
77399), A CERTIFIED COPY OF 4- /RICH DECREE VMS RECORDED JAPILIARY 30, 1962 1111 BOOK
5993, PAGE 441 OF OFFICIAL RECORDS, (-)RAI'IGE COUNTY.
ALSO EXCEPTIIlG THEREFROM, THAT PORTION OF SAID LANE) INCLUDED 1- VITHIP! THE
FOLLOV•11N6 DESCRIBED LANE):
THAT PORTION OF BLOCK C OF THE BANNING- TRACT, AS SHO%VPl DPI A, f °IAP ATTACHED TO
REPORT OF THE REFEREES FILED APRIL 14, 1890 IN CASE 1410. 6385 IN THE SUPERIOR COURT
OF THE STATE CiF CALIFORNIA, IN AND RJR THE CC)UPIIY OF Lt )S ANGELES, APID THAT
PORTiC)M OF LOTS 1111 AND 1112 At 11; Pi )RTIOPI f OF SIXTEENTH STREET AND V.''HITTIER
AVEMI lE ADJOINING, AS `-HO'V- P! ON THE HAP OF OF IIE',:'F'f3RT MESA TRACT RECORDED 114 BOOK
5, PAGE 1 OF MI=,CELIAPIEC)UcS HAP S, RECORDS OF C)RAI!GE COUNT'(, CALIFORNIA,
DESCRIBED AS A WHOLE AS FOLLO'vVS:
BEGANNING AT THE Ii'!TERSECTION OF THE CENT-ER LIME OF SAID SIX rEENTH STREET .1.11TH
THE SOUTH+.'.1ESTER1-Y BOUNDARY UNE OF FIRST ADD- ITIOP! TO HEVYTORT I'4ESA TRACT, AS
SHOWN N Ol'I A HAP RECORDED IN BOOK 8, PAGE 1 ?1 OF 111SCELLAPIEC)U5 MAPS, RECORDS OF
C1RA.1-1GE D- 9INTY, CAUFORNiA; THEIT E SOUTH 8'a DEGREES 21' So" ?NEST 16.51) FEET TO
1 13066751 -01190
3021 H 14.12 a06 +13/12
THE BEGII'U•IIPIG ).= A TAi•!vE';T CURVE LOi ?GAVE SClI ITHERL f A.PID H.v', IP!G A RA.C)IUS OF
51)U.UIi FEET; THEI•ICE b ^iESTERLI' ALUI.IG',AID (-IJRVt, THROUGH API A,i!CLE OF 28 DEGREES
48' 33 ", A DISTANCE OF 251.41 =EET TO A LIME TANCIENT; THEPICE , 01.17H 61) DEGREES 33'
17" WEST ALONG, SAD UNE TAMGEMT, A DISTANCE OF 41)4,60 FEET; THENCE NORTH 29
DECREES 2(i' 43" %JEST 8:04.51) FEET; THENCE NORTH 60 DECREES 33' 17" EAST 300.01) FEET;
THEidCE SOUTH 88 DEGREES 4E' 2 1"1" EAST 316'.57 FEET TO A POINT IN A CURVE CONCAVE
SOUTHEASTERLY AND HAVII•!C A. RADIUS OF 50.00 FEET, .A RADIAL LINE FROM SAID PC NT
BEARS NORTH 8'.) DECREES 21' 50' EAST: THENCE NORTHERLY ALONG- SAID CURVE, THROUGH
AN Ai,!(-,LE OF 44 DEGREES 24 53'. A DISTAPICE OF 38.76 FEET TO THE BE(,lMllJIPIG OF A
TANGENT CURVE CONCAVE 1 ^iE STERLY AND HAVING .A RADIUS OF 90.1)0 FEET; THENCE
N )RTHERLY ALOPI(--. SAID CURVE, THROUGH AN .ANC.LE OF 44 DECREES 24' 35% A DISTANCE
C)F 69.77 FEET TO A LINE TANGENT; THENCE ITORTH 0 DECREES 38' 10" \•'JEST ALOMG S dD
LIME TAhIGEPIT, A. DISTANCE OF 11.1'', FEET TO THE SAID SOLITHWESTERLY B(')UPdDARY LIMP
OF FIRST ADDITION TO NEWPORT MESA TRACT; THENCE SOUTH 29 DEC-.REES 26' 43 EAST
ALONG SAID SOIJTHWESTERLY BC)UNDARY 1I1JE, A DISTANCE OF 78932 FEET TO THE POINT
OF BEGIMMINC.
A5 DESCRIBED Till THE FINAL ORDER OF CONDEMNATION RENDERED AUGUST 4, 1965 IN THE
SUPERIOR COURT OF THE STATE OF CALIFC)PNIA, IPI AP!D FOR THE COUNTY OF ORANGE,
ENTITLED "COSTA MESA. UNION SCHOOL DISTRICT OF ORAf•IGE COUNTY, C.ALFORNIA V5.
SECURITY FIRST NATIONAL BAP K, ETC., .AND OTHERS' (CASE PIO. 123141), A CERTIFIED COPY
()F 411HI( -H ORDER WAS RECCIRDED AUGUST 5, 1965 IN BOOK 7620, PACE 215 OF OFFICIAL
RECORDS, C ),RANGE COLINP(.
AL'-,(-) EXCEPTIP!C THEREFROM, THAT PORTICsN DESCRIBED AS FO1_LCA•V5:
THAT PORTIOPI OF LOT B OF THE BANNING TRACT, AS SHOVJN ON A MAP FILED IN THE CASE
C1F HANCOCK B.ANNIN6 AND OTHERS VS. MARY H. BANi•fiNG, FOR PARTITION, BEING CASE
MO. 6385 UPON THE RECC�TER OF ACTIOi•!S OF THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA, IM AND FOR LOS APIGELES COUNTY, DESCRIBED AS FOLLO%NS
BEGIPIhlIhIG AT THE MORTHVIESTERLY CORNER OF SAID LOT B; THENCE SOL ITHERLY ALONG
THE V;'ESTERLY BOUNDARY OF SAIL) LOT B. SOUTH 01 DEGREE 45 011' WEST 462.no FEET TO
RANCHO LAS BOLSAS, STATION 75, AID SOUTH 34 DECREES 15' (10" \•'JEST 462.95 FEET TO
RANCHO LAS BCILSAS, STATION 74, BEING, THE TRUE POINT OF BEC,IINIPIG; THENCE
CONT'll UINC ALONG SAID WESTERLY BOUNDARY, SOUTH u6 DECREES 15 1)0" EAST TO THE
WESTERLY UNE OF THE STRIP OF LAID DESCRIBED IN DEED Ti J THE CITY OF SANTA APIA,
RECORDED APRIL 14, 1934 IN BOOK 0711, PACE 147 OF OFFICIAL RECORDS OF ORAt•!C=
COUNTY, CALIFORNIA.; THENCE, NORTHERLY ALONG SAID b:'E STERLY L-1NE TO THE
IITERSECTIC)N b'JITH THAT CERTAIN COURSE HEREINABOVE CITED AS "SOLITH 34 DEGREES
IT 00" %'JEST 4152.95 FEET "; THENCE ALONG SAID CERTAIN COURSE, SOUTH 34 DECREES 15'
t;1)" 'VEST TO THE TRUE POINT CJF BEGINMIPIG.
ALS(_) EXCEPTIP!G THEREFROM THOSE PORTIONS DESCRIBED AS PARCELS 1011, 103, 1116 AND
108 IP! THE NOTICE OF LIS PEP!DENS, Lli'!ITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE PIO. CV 91- :9991 -IH, A CERTIFIED OF WHICH %,JAS RECORDED
AUGUST 23, 1991 AS jMSTRUMENT PC). 91- 45533 „: OF OFFICIAL RECORDS OF SAID ORANGE
(_ CaJI'!TY, V;'HiC_H I1,1CLUDES A DECLARATIC)!•! OF TAKING.
ALSO EXCEPTING THEREFROM, THE TITLE AND EXCLI ISIVE RIGHT TO ALL OF THE MINERALS,
INCLUDING, BUT NOT LIMITEC) TO, ALL PETROLEUM, OIL, NATURAL CAS, AND OTHER
HYDR(-)CARBOPI SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WITH THE
RIGHT OF [7•IGnESS All![) EGRESS, 1-1, ON, OVER Al ID BENEATH THE SURFACE Oc SAID LAND, AT
112111(,6751 1111911
m2 12 AN1P12
ALL TIMES TO EXPLORE FOR. EXTRACT AND REMOVE r'.i h CIF SAID MINERAL`_ LOCATED
BELOW A DEPTH OF 62110 =EET, BUT 4VITHOUT THE RIGHT TO USE THE SURFACE OF SAID
LAND DOWN TO A DEPTH O` 5 )CI FEET, AS RESERVED -!N THE DEED EXECUTED BY HANC C)CK
BANNING JR. AND OTHERS, DATED AUGUST 1, 1959, RECORDED AUGUST 29, 1953 IF! BOOK
4=1, PAGE 532, AND RE- RECORDED OCTOBER 6, 195° IN BOOK 4437, PAGE 228', AS
AMENDED BY THE DEED AMC! AGREEMENT EXECUTED BY HANCOCK BA.II NINE, JR. AHD OTHERS,
RECORDED DECEMBER 27; 190:1 IN BOOK 5957, PAGE 665, ALL -III OFFICIAL RECORDS,
ORANGE COUNTY.
PARCEL T
BEGINNING AT THE SCnITHVJEST CC)RIdER OF THAT CERTANI LA,NO AS DESCRIBED IN PARCEL
I III DEED FROM HANCO-K 5.4i!PIING JR. AMC) OTHERS, DATED AUGUST ST 1, 1958, RECORDED
AUGUST 29, 1958 IN BOOK '4% PAGE 5::2 OF OFFICIAL RECORDS, ORANGE COUPITI', AID
RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PAGE 228 OF (OFFICIAL RECORDS, ORAPIGE
COUNTY, ALSO BEING THE SOUTHWEST CORNER OF LOT "B" OF THE BANNINI—, TRACT, AS
SHOWN ON THE MAP ATTACHED TO THE REPORT OF THE REFEREES FILED APRIL It 189:1 N
CASE NO. 6385 IN THE SI IPERR IR COURT OF THE STATE OF CALIFC )RHIA, IN At,)[) FOR THE
COUNTY OF LOS ANGELES, CALIFORNIA, WHICH CORIIER IS ALSO STATIOPI 149 OF THE
BOUNDARY LINE OF RANCHO SANTIAGO DE SANTA ANA, AS DESCRIBED IN BOOK 3, PAGE 3E:7
OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIR )RHIA; THENCE ALONG THE
SOUTHERLY LINE OF SAID PARCEL 1, SOUTH 72 DEGREES 51' 36' EAST 807117 FEET TO A.
POINT WHICH BEARS NORTH 2U DEGREES 32' 44" EAST 606.79 FEET FROM THE POINT OF
IHTERSECTIOP! OF THE CENTER LHIE OF THE SAPITA ANA RIVER, AS SHOWN Oi4 THE MAP,
FILED IN AND ANNEXED TO THE COMPLAINT IN THE EASE OF J. B. BANNING JR. VS. SMITH
AND OTHERS, BEIM, CASE NO. 22797 OF THE SUPERIOR COURT OF THE `STATE OF
CALIFORNIA, IN AND R 1R ORANGE COUNTY, A COPY OF THE JUDGMENT OF SAID CASE fdO.
22797 H.ArITdG BEEN RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS,
WITH THE SOUTHEASTERLY UNE OF SUM41T STREET, Ni FEET IN WIDTH, ,A`_-. SHOWN ON A.
MAP OF EL MORO TRACT RECORDED Rd BOOK 8, PAGE 75 OF MISCELLANEOUS MAPS,
RECORDS OF ORAPIGE COUNTY, CALIFORNIA; THEfJCE EASTERLY, NORTHEASTERLY APID
SOUTHEASTERLY, PARALLEL FVITH THE SAID CENTER LINE OF THE SANTA ANA RIVER AND
GH400 FEET DISTANT THEREFROM. MEASURED AT RIGHT ANGLES THERETO), THE FOLLOWING,
COURSES AND DISTANCES: SOL ITH T DEGREE`_. 02' EAST 436.60 FEET; SOUTH 66 DEGREES
42' 20" EAST 517.33 FEET: NORTH 211 DEGREES 0(' 15" EAST 53149 FEET; NORTH 51
DEGREES 48' EAST 40076 FEET; NORTH 74 DEGREES 0 EAST 72186 FEET; SOUTH 45
DEGREE_ 20 28" EAST 74007 FEET; SOUTH 27 DEGREES 46' EAST 498.37 FEET; SOUTH 13
DEGREES 35' AV' EAST 820.19 FEET: SOUTH 1 DEGREE 38' 25" VEST 871.22 FEET TO A POINT
IN A. LINE 600.00 FEET NORTHERLY OF AND PARALLEL VIITH THE PIORTHERLY LINE OF THE
loo-FOOT RIGHT OF WAY OF THE CAL R)RPIIA. STATE HIGHV:'AY, AS DESCRIBED IPI DEED
RECORDED APRIL An 193a IN BOOK E '.22, PAGE 48 OF OFFICIAL RECORDS, (ORANGE COUNTY;
THENCE SOUTHEASTERLY, PARALLEL V /ITH THE NORTHERLY AND HORTHE .STERLY UP1E OF
SAID CALIFORHIA STATE HIGH'dJAY, THE FOLLOV.ING COURSES .Atli[) (DISTANCES: SOUTH 83
DEGREES 16. EAST 328.62 FEET TO THE BEGRIUNG OF A CURVE TO THE RIGHT; THENCE
SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTH4'dEST, HAVING A RADIUS CIF
16 0,u0 FEET AMC) TANGENT TO THE LAST MENTIOiIED COURSE, A DISTANCE OF 500.12 FEET;
THENCE SOUTH 65 DEGREES ST EAST, TANGENT TO SAID CURVE, 667.15 FEET TO THE
BEGINNING OF A CURVE TO THE RIGHT; THENCE SOUTHEASTERLY ALONG A CARVE CONCAVE
TO THE SOUTH.-VEST AMC, HAVIPIG A. RADIUS OF 165UAC1 FEET, Atli[) TA•.IJGENT TO THE LAST
PIEPITIONED COURSE, A. DISTANCE OF 4834 FEET TO A POINT IN THE SOUTHERLY
PROLONG-ATICIf I OF THE EASTERLY LINE OF WHITT IER AVENUE (60 FEET IN 6VIDTH), AS
SHC1V''rh! Old A HAP OF THE FIRST ADDITION! TO flIEVi'PORT MESA TRACT RECORDED III BOOK
8; PAGE 61 OF MISCELLANEOUS MAPS, RECORDS OF ORAPR E COUNTY. CALIFORNIA, A RADIAL
d1121R W a0MN12
LINE FROM SAIL: POII IT BEAR`_; SOUTH 25 DEGREES 44 43" WEST, WHICH POINT IS THE
SOUTHEAST CORNER OF SAID PARCEL 1; THENCE SOUTH 0 DEGREES 36'W" EAST ALONG THE
SAID PROLONGATION OF V."HITTIER AVENUE, TIC46 FEET TO API IPITERSECTiC V%: WITH THE
MIORTHE STERLY LINE OF THAT CERTAIN STRIP OF LAND 250 FEET IM VVIDTH, AS DESCRIBED
IM PARCEL 1, ARTICLE II OF SAID DEED RECORDED AUGUST 29, 1958 IN BOOK ' —'.0 % DNA
532 OF OFFICIAL RECORD% ORANGE COUNTY AND RE- RECORDED OCTOBER 6. 1958 IN BOOK
4137, PAGE 229 OF OFFICIAL RECORD`_, ORANGE CO Nn', A RADIAL LINE FROM SAM)
INTERSECTION BEARS SOUTH 33 DEGREES 411' 54" "EST; THENCE ALOMG THE
NORTHEASTERLY, NORTHERLY, NORTHWESTERLI'.APID NORTHERLY LINE OF SAID PARCEL 1,
ARTICLE II, THROUGH THE FOLLOWING CCXURSES AND DISTANCE;: NORTHWESTERIA' ALONG
A CI IRVE C(:)I Il(:.VE SOUTH'rJESTERLY, HAVING A RADIUS OF 13iuLau FEET, THROLIGH API
ANGLE OF 9 DEGREES 31:; 54 ", A DISTANCE OF 218.16 FEET TO A LINE TANGENT THERETO;
THENP,E NORTH 65 DEGREES 56 'NEST, TANGENT TO SAID CURVE, 66115 FEET TO THE
BEGINNING CIA CURVE TO THE LEFT; THENCE WESTERLY ALONG A CURVE CONCAVE TO THE
SOUTHWEST AND HAVING A RADIUS OF 1300.00 FEET, AMC) TAPIGEPIT TO THE LAST
MENTIONED COURSE, A DISTANCE OF 39104 FEET; THENCE NORTH 83 DEGREES
TANGENT TO SAID CURVE, W6.66 FEET TO THE BEGINNING OF A CARVE TO THE RIGHT;
THENCE''vESTERLY ALONG A CURVE CONCAVE TCI THE NORTH AND HMnNG A RADIUS OF
71KUM FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A. DISTANCE OF 134 FEET TO
A POINT IN A LINE PARALLEL WITH THE SAID CENTER LIME OF THE SANTA ANA RIVER, AND
29%on FEET DISTANT EAST THEREFROM, MEASURED AT RIGHT ANGLES THERETO, A. RADIAL
LIME FROM SAID POINT BEAR`_; NORTH 6 DEGREES 53'29" EAST; THENCE NORTHERLY,
PIORTHWESTERLY AND SCN.TTHI'dESTERLY, PARALLEL'VIF H THE SAID CENTER LINE OF THE
SANNTA ANA RIVER, AND 29MM FEET DISTANT THEREFROM, MEASURED AT RIGHT AN(d LES
THERETO, THE FOLUDWI 1, COURSES AND DISTANCES: NORTH 1 DEGREE 38' 25" EAST
114177 FEET: NORTH 13 DEGREES 35 41r' JEST 729.87 FEET; NORTH 27 DEGREES 46, WEST
41IU.76 FEET; NORTH 45 DEGREES 211 28" 'NEST 4S238 FEET; SOUTH 74 DEGREES 07' WEST
44953 FEET; SOUTH 51 DEGREES 48' WEST 23737 FEET; SOUTH 211 DEGREES 06' 15' b:'EST
319.011 FEET TO A POINT H4 A LIME PARALLEL WITH THE NORTHWESTERLY LINE OF TRACT
MCI. 771 AS SHOWN ON A NAP RECORDED IN BOOK 2% PAGES 5 AND 6 OF I lisCELLAh1EC1US
MAPS. RECORDS OF ORAPI(--,E COUNTY, CALIFORNIA, AND 250 FEET DISTANT WEST
THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTHVIESTERLY AND
WESTERLY, PARALLEL NVITH THE NORTHWESTERLY AMC) NORTHERLY LIllE OF SAID TRACT MO.
772, AND 25mu FEET DISTANT WESTERLY AND NORTHWESTERLY THEREFROM, MEASURED
AT RIGHT ANGLES THERETO, THE FOL LO: °DING COURSES AND DISTANCE`_.: SOUTH 29
DEGREES ar 'NEST 2016 FEET; SOUTH 42 DEGREES ❑r 1•' ;'EST 131.37 FEET; SOI ITH 72
DEGREES 45 'NEST 158.4;5 FEET; NORTH 88 DEGREES 2514'VEST 1651 FEET TO A. POINT IN A
LINE PA.RALLE! WITH THE SAID CENTER LINE OF THE SAf•ITAMA RIVER AND 250.1111 FEET
DISTANT ,''NORTHERLY THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE
WESTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER AND 250.00
FEET DISTANT NORTHERLY THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE
FOLLOi %IIPIG COURSES AND DiSTA.P;CES: NORTH 66 DEGREES 42' 211" WEST 620.94 FEET;
NORTH 78 DEGREES 112' :'VEST 50169 FEET TO A POIPIT IM A LINE PARALLEL WITH THE
NORTHERLY LINE OF BLOCK C, EL MORO TRACT, AS SHObVM ON A MAP RECORDED IN BOOK 8,
PAGE 75 OF PIISCELLAPIECUS MAPS, RECORDS OF 1 XRAPIa_,E COUNTY, CALIFORNIA, AND 250.00
FEET DISTANT NORTHERLY THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE
WESTERLY, PARALLEL WITH THE SAID NORTHERLY LINE OF BLOCK C, EL MCIRC 1 TRACT, AND
250,00 FEET DISTANT NORTHERLY THEREFROM, ILEA -1 IRED AT RIGHT ANGLES THERETO, THE
FJLLOWII IG COURSES AND DISTANCES: f IC RTH 611 DEGREES 52' 34" WEST 120,39 FEET:
NORTH 64 DEGREES Q TV WEST 216.59 FEET TC i A POINT IN THE EASTERLY LINE OF THE
EASEMENT FOR THE PURPOSE OF MAINTAINING A RIVER CHANNEL OVER A STRIP OF 1,43-K)
T I FEET WIDE, III FAVOR OF NEWBERT PROTECTR N DISTRICT, AS DESCRIBED IN THE
INTERLOCUTORY DECREE OF PARTITION DATED JULY 19, 1 ^i2:i, A CERTIFIED COF ";' OF V HICH
112,'066!41 -1090
p215AU aAN12
'1'i[AS RECORDED) JULY 19, 1951 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS, ORANGE
CCAJNTY SAID POINT BEING. THE MC),T NORTHWESTERLY CORNIER CIF SAID PARCEL 1.
ARTICLE II; THENCE A= 11 DEGREES 25' 101Ei,T ALONG SAID EASTERLY LINE OF THE RIVER
CHANNEL, 256MO FEET TO THE 1M ST SC)1ITHVJESTERLY CORNER OF SAI ) PARCEL 1, A.RTI IE
11; THENCE FIORTH 64 DEGREES 16' 5(;" %.VEST.ALON(:, THE NORTHERLY LINE OF SAID BLOCK
OF EL MORO TRACT, 14H2 FEET IT) AN INTERSECTION G'ViTH THE NORTHEASTERLY LINE OF
THE 100-FOOT RIGHT OF WAY OF CA.URDTHA. STATE HIGHWAY; THENCE NORTH 54 DEGREE`_,
O2''NEST ALONG SAID HIGH'd:)AY FIGHT OF 'WAY LINE, 1414 FEET TO THE CENTER LINE OF
SAM) XKFOOT RIVER CHANNEL EA`Ei,1ENT; THENCE NORTH 13 DEGREES 15' EA` -.T ALONG
SAID CENTER LINE, 3907 FEET IT) THE NORTHEAST CORNIER OF LAND DESCRIBED IN DEED
DATED DECEMBER 31!, 1929 FROM JOSEPH BANNING JR, AND OTHERS, TO JAMES H. MACKLIN,
RECORDED JANUARY 29, 19311 IN BOOK 356, PAGE 31 OF OFFICIAL RECORDS, ORANGE
COUNTY: THENCE NORTH 74 DEGREE", 17' VdEST 289,47 FEET TO A. PC)IFIT IN THE SOUTHERLY
EXTENSION OF THE k4'= STER1_Y BOUNDARY LIME OF SAID RANCHC) SANTIAGO DE SAPITA. APIA.,
WHICH POINT 15 ALSO THE NORTH%%IEST CORNER OF SAID LAND DESCRIBE[) IN SAID DEED)
RECORDED IN BOOK 356; PAGE 31 OF OFFICIAL RECORDS, ORAII(5E COUNTY: THENCE NORTH
15 DEGREES 43' EAST ALONG THE SAID SOUTHERLY EXTENSION OF THE V' /ESTERLY
BOU11)ARY LINE OF RANCHO SANTIACAJ DE SANTA ANA, 119.00 FEET TO THE POINT OF
BEGINNING.
EXCEPT ANY PORTION OR PORTIONS OF SAID ABOVE DESCRIBED LAND WHICH 15 OR ARE
NOT INCLUDED EITHER'J:'ITHIPI THE EXTERIOR BOUNDARIES OF THE RANCHO SANTiA(.,O DE
SANTA ANA, OR 1•'•iITH IPI THE EXTERIOR BOUNDARY LINES OF GOVERNMENT LOT 1, SECTION
14; GOVERNMENT LOT 1, SE)- CIC)FI 20; AND GOVERlflMEiN!T LOT 1, SECTION 29, ALL IN
TOWNSHIP S SOUTH, RANGE 10 'NEST, SAN BERNA.RDINO BASE AND MERIDIAN.
ALSO EEXCEPTINQ, THEREFROM, THAT PORTION! OF SAIL) LAND INCLUDED V,11THIN! A STRIP OF
LAND ISO FEET'V;'IDE, DESCRIBED AS PARCEL D33 -122.1 IN THE FINAL CORDER OF
CONDEMNATE)N RENDERED JANUARY 25, 1962 IN THE SUPERIOR COURT OF THE STATE OF
CALIFOR031.A, IN AND FOR THE COUNTY OF ORANGE, PI THE ACTION ENTITLED "ORANGE
COUNTY FLOOD CONTROL CHSTRKT VS, CITY C)F NEWPORT BEACH AIX) OTHERS" (CASE NO.
773419); A CERTIFIED COPY C)F'b'dHi(:H DECREE RECORDED JANUARY 211, 1964 BOOK 5993,
PAGE 441, OFFICIAL RECORDS, ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED AS PARCELS 1111), 113, 106 AND
108 IN THE NOTICE OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NO. CV 91- 3:191 -IH, A. CERTIFIED OF WHICH WAS RECORDED
AUGUST 23, 1991 AS INSTRUMENT NO. 91- 455338 OF OFFICIAL RECORDS C)F SA ?D C )RANQ E
ffJl li lTY,'r/HICH INCLUDES A DECLARATION! OF TAKING.
ALSO EY,CEPTR83 THEREFROM, THE TITLE AND EMMU SIVE RIGHT TO ALL OF THE MINERALS,
INCLUDING, BUT NOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL G.AS AI'ID DITHER
HYDROCARBo11 SLIBSTAFI(. ES AND PRODUCT` DERIVE[) THEREFROM, IN OR UNDER, OR
PRODUCIBLE FROH SAID LAND AT ANY DEPTH OR DEPTHS E,20o .FEET OR MORE BELOW THE
SURFACE OF SAID LAND, TC )bEETHER'WITH THE FREE AND UNLU,IITED RIGHT TC) MINE, DRILL,
BORE, OPERATE AND REMOVE FRCTI BENEATH THE SURFACE OF SAID LAND, AT ANY LEVEL OR
LEVELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PLIRPC)SE OF
DEVELOPMENT OR REI'IOVAL OF SAID RESERVED SUBSTANCES, AS RESERVED IN THE DEED
All) AGREE14ENT FROM HANCC )CK BA1*HNG JR. AND OTHERS, RECORDED DECEMBER 27, 196:1
IN BOOK 5957, PAGE 555 OF OFFICIAL RECORDS, GRANGE COUNTY, SUBJECT TO CERTAIN
LMITATIONS AND COP91NGENCIES CONTAINED IN SAID DEED.
PARCEL 3
113/0 Of, 751.000
a UM4 13 NMM12
A STRIP CIF ILANO 2511 FEET':'/IDE, DESCRIBE[) AS FOLLOI'; +5:
BEGIPIPIIhdG AT THE P01h;T C 1F If ITERSECTICAM OF THE MORTHERLY UNE OF BLOCK C OF EL
I °1UR0 TRACT, AS SHOVJVI Ohl A, HAP RECORDED IN B(-)(-)K 3, PAGE 75 OF MISCELLANEC+US
MAPS, RECORD', OF i IRANCE CCiUfdT(, CALIFORNIA, AND THE EASTERL'i LINE OF THE
EASEMEHT FOR THE PURPOSE OF f1AINTNINIII•IG A RIVER CH.ANHEL OVER A STRIP OF LAND
300 FEET VNIDE, IN FAVOR OF NEl':BERT PROTECTION DISTRICT, .AS DESCRIBED IN THE
ll'l1TERL( )CIJT(-.)RY DECREE OF PARTITION DATED JULY 19, 1929, A CERTIFIED COPY OF WHICH
VJAS RECORDED 11JL'i 141, 1920 IN B(")CiK 297, PAGE 7(5 OF OFFICIAL RECORDS; THENCE St )LITH
64 DEGREES 06' 50" EAST, ALOhIG THE NORTHERLY LINE OF SA.IC) EL i ORO TRACT, 154?4
FEET; THENCE C(Dt {ri!UING ALC)hIG THE LAST I.IENTIONED i'!ORTHERLY LIE, SOI.fTH 60
DEGREES 52' 34" EAST 151.0= FEET TO A POINT IN THE S(DUTHEASTERLY LINE OF SUMMIT
STREET, 3u.iw FEE IN 1' /[C1TH, AS SHOI•'uP! 01'! THE h1AF' OF SAID EL lllORO TRACT, SAID
P(l)INT BEING 111 THE CENTER LINE C)F THE SANTA AMA RIVER, AS SHC ANTJ ON A MAP FILED li'!
At ID ANNEXED T(_) THE COh1PLAINT IVI CASE OF J. S. BANFIIh!G JR. V'_; S1,11TH AND OTHERS,
CASE MC). 22797 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR
ORANGE COLIflM, A COPY OF THE JUDGMENT OF SAID CASE NO. 22797 HAVING BEEN
RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS, ORANGE COLIhITY;
THENCE '-,(-)I ITH 75 DEGREES 112' EAST ALOA!G THE SAID CENTER LIME C)F THE ,AI,1TA ANA
RIVER, 517.61 FEET; THEi KE CONTINUING ALONG THE SAID CEf'lTER LIME OF THE SANTA ANA
RIVER, SOUTH 66 DEGREES 42' Zit" FAST 644.09 FEET TO A POINT if,! THE NORTHERLY UME
OF TRACT NO. 772; AS SHOV•ihJ ON A f -1.AP RECORDED IN BOCK 23, PAGES 5 Ai NO 6 OF
P-IISCELLAMEOUS F1AF'S, RECORDS OF ORANGE COL IilITY, CALIFt iR1NIA; THENCE EASTERLY AVID
NORTHEASTERLY THE NORTHERLY AND I'IORTHVdcSTERL'i LII'IE OF SAID TRACT
N0.772, THE FOLLOWINC, COURSES AND DISTANCES: SC )LITH 53 DEGREES 25' EAST 1U5,9i
FEET; NORTH 72 DEGREES 45' 'SST 268.62 FEET; NC)RTH 42 [DEGREES 06 EAST 223.36 FEET;
NORTH 29 DEGREES (11 EAST 306.31 FEET TO A POINT 11.1 THE SAID CENTER I INE OF THE
SANTA ANA RIVER; THENCE ALOMQ, THE SAID CENTER UNE OF THE SANTA ANA. RIVER, THE
FILLOV /1VIG COURSES AND DI STANCES: NORTH 211 DEGREES 116' 15" EAST 267.71 FEET;
NCORTH 51 DEGREES 4?i EAST 117:+)1.) FEET; NORTH 74 DEGREES u7 EAST 254.30 FEET; S(--)I.RH
45 DEGREES 20' 2cr EAST 295.02 FEET; SOUTH 27 DEGREES 4C1 EAST 331.04 FEET; SOUTH 13
DEGREES 35' 40" EAST 6ri5.36 FEET; SOUTH 1 DEGREE 35' 25" WEST 121;5.19 FEET; SOUTH 10
DEGREES 47' 30" EAST 116.55 FEET To A POINT IN THE MC)RTHERLY LINE OF THE 1011-FOOT
RIGHT OF l ", +AY OF THE CALIFORNIA STATE HI(;HI•'JAY, AS DESCRIBED .-III! DEED RECORDED
APRIL 21), 1936 IN BOOK 822, PAGE 4C; OF LIFFICIAL RECORDS, ORANC-E COUNTY, A RADIAL
LINE FROM SAID POINT BEARS N(DRTH 19 DEGREES 20' 43" EAST; THENCE ALONG THE
NORTHERLY AMC) N(")RTHEA;TERLY LINE OF ;AID CA11F(-)Rh!i.A STATE HIt HYVAY, THE
FjLLOVIING COURSES AND 01STAPICES: EASTERLY ALONG A CURVE CONCAVE TO THE
NORTHEAST AND HAVING A RADIUS OF 95u.ro) FEET, A DISTANCE OF 209.67 FEET; SOUTH 33
DEGREES 13' EAST, TANGENT TO SAID CURVE, 646.66 FEET TO THE BEGINNING OF .A CURVE
TO THE RIGHT, SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTH'"AtEST AND
HAVIH(G ,A RADIUS OF 1050,010 FEET, AND TArlGENT TO THE LAST IAEENTIONED COURSE, A
DISTANCE OF 31`;.26. FEET; S.OLITH 65 DEGREES 56 EAST, TAI +IGEh1T TO ',AIDCIIRVE, 6(,7.15
FEET TC) THE BE[;I Pill] IMG OF .A CURVE TO THE RIGHT, SOUTHEASTERLY ALONG A CURVE
C[Jh1CA.1IE TO THE SOUTHV,IEST Af ID HAVIi'IG A. RADIUS C )F 1050.00 FEET, AhlD TAh1GEhlT TO
THE LAST IIEHTIONED COURSE, A DISTANCE OF 216,09 FEET; SOUTH 54 DEGREE,-, o0' 3(I"
EAST ;f;7.05 FEET TO THE BEGINNING OF A CURVE TO THE LEFT, SOUTHEASTERLY .ALC)hIG .A
CURVE COh!C.AVE TO THE h!C >RTHF_AST, HAVING, A RADIUS OF 950.00 FEET, AND 1 T.ANC -ENT TC )
THE LAST MENTIONED COURSE, A DISTANCE OF 264.46 FEET; SOUTH 7ii DEGREES 052 ;ii"
EAST, TAI,*EV1T TO SAID CURVE, 527.80 FEET TO THE SOUTHEASTERLY BOUNDARY LINE OF
LOT D OF THE BANNING, TRACT. AS SHt iV'if•I ON THE MAP ATTACHED TO THE REPC)RT OF THE
REFEREES FILED APRIL 14, 19311 1M CASE MC). 63115 IN THE SUPERIOR COURT OF THE STATE
I ReiyB75 i.mm�
3,1114,12 �06113112
OF CALIFORN!iA, It AND FOR THE COLHJTY i �F LOS ANGELES, CALIFORNIA; THENCE LEAVEN(;
SAID CALIFORNIA STATE HIGHWAY, NORTH 39 DEGREES 43' =5' EAST, ALONG THE
SOUTHEASTERLY BOUNDARY LINE OF SAID LOT D OF BANNING TRACT, 26174 FEET TO A
POINT, BEING 2540) FEET NORTH, MEASURED AT RIGHT ANGLE`_ FROM THE
NCRTHEASTERL'i LINE OF SAID 1011 -FOOT RIGHT OF WAY OF THE CALIFORNIA STATE
HIGHWAY; THENCE NORTH 70 DEGREES 16' 30" WEST, PARALLEL WITH THE NORTHEASTERLY
Lill IE OF SAID STATE HIGHWAY, 49.(3 FEET TO A POINT 11'1 THE SOUTHEASTERLY LINE OF
THAT CERTAII-I 2.7827-ACRE PARCEL OF LANCE AS DESCRIBED DI DEED FROM FARMERS AND
HERICHANTS HATIONIA.L BANK OF LOS ANGELES, TRUSTEE FOR ANNE O. BANNING AND
OTHERS, TO.4.ES, CHAFFEY AND OTHERS, RECORDED MARCH 14, l 158 IN BOOK 4228, PAGE
191 OF OFFICIAL RECORDS, ORANGE COUNTY, A RADIAL LINE FROM SAID POINT BEARS
NORTH 26 DEGREES ld 42" WEST; THENCE ALONG THE BOUPK ARY UNE C),= THE LA J
MENTIONS) PARCEL OF LAND, THE FOLLC1•VIN(.: COURSES AND DISTA1,10ES: SOUTHWESTERLY
ALONG A CURVE CONCAVE TO THE NORTHVy'E`;T AND HAVING A RADIUS OF 373.41: FEET, A
DISTANCE OF 176.410 FEET TO THE MOST SOUTHERLY CORNER OF SAIL) PARCEL OF LAND,
NORTH 5 DEGREE: 44' 28" WEST 1(4,32 FEET TO A PCHNT IN A LINE PARALLEL WITH THE
NORTHEASTERLY LINE OF SAID STATE HIGHWAY, AND 250.101? FEET DISTANT THEREFROM,
MEASURED AT RIGHT ANGLES THERETO; THENCE NORTH%VESTERLY, PARALLEL WITH THE
SAID NORTHEASTERLY AND NORTHERLY LINE OF 5AID STATE HIGHWAY, AND 2S( FEET
DISTANIT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES
AND DISTANCES: NORTH Is DEGREES 05' IV WEST 376.41 FEET TO THE BEGINNING G_)F A
CURVE TO THE RIGHT, NORTHWESTERLY ALONG A CURVE CONCAVE TO THE NORTHEAST AND
HNnN1G R RADIUS OF RMUM FEET, AND TANGENT TC) THE LAST MENTIONED COURSE, A
DISTANCE OF 19157 FEET; NORTH 54 [DEGREES (18' IV WEST. TANGENT TO SAID CURVE,
387.(5 FEET TO THE BEGIffRNG OF A CARVE TO THE LEFT, NIORTHATSTERLY ALONG A.
CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1 3HI!. M FE= I, AMC)
TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 267,55 FEET; NORTH 65
DEGREES SC; WEST, TANGENT TO THE SAID CURVE, 6G Ti5 FEET TO THE BEGINNINt; OF A
CURVE TO THE LEFT, 'WESTERLY ALONG A CURVE C(:)I,ICAVE TO THE SOUTHWEST AND HAVING
A RADIUS OF 13HIUM FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE
OF 394:14 FEET; THENCE NORTH 83 DEGREES I8' ?'JEST, TANGENT TO SAID CURVE, 606;;
FEET TO THE BEGINNING OF A CURVE TO THE RIGHT, WESTERLY ALONG A CURVE CONCAVE
TO THE NC>.RTH AND HAVING A RADIUS OF PHUM FEET, AND TAI-I(SEIdT TO THE LAST
M1EfATIONED COURSE, A. DISTANCE OF 2.34 FEET TO A POINT III A LINE PARALLEL WITH THE
SAID CENTER LINE OF THE SANTA ANA RIVER, AND 29m FEET DISTANT THEREFROM,
MEASURED AT RIGHT ANGLES THERETC ), ,4 RADIAL LINE FROM :AID POINT BEARS NORTri E.
DEGREES 5129" EAST; THENCE NORTHERLY, I IORTHWESTERLY A.i!C) SOUTHWESTERLY,
PARALLEL WITH THE SAID CENTER I!NE OF THE SANTA APIA RIVER, AND 201x) FEET
DISTANT THEREFROM, IMEASG iRED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES
AND DISTANCES: NORTH 1 DEGREE 38' 25" EAST 1144.77 FEET; NORTH 13 DEGREES 3 411"
'NEST 72927 FEET; NORTH 27 DEGREES 46' WEST 4(H.76 FEET NORTH 45 DEGREES 20' 7E :"
'NEST 48258 FEET; SOUTH 74 DEGREES h7' WEST 44153 FEET SOUTH 51 DEGREES 48' WEST
23137 FEET; SOUTH 2( DEGREES 1W 15" WEST 311(( FEET TO A. POINT IN! A LINE PARALLEL
WITH THE SAID NORTHWESTERLY LINE OF TRACT NO. 774 AND 2511 FEET DISTANT
THEREFROM, MEASURED AT RIGHT ANGLES THERETO: THENCE SC )UTHWESTERLY AND
WESTERLY, PARALLEL ',',11TH NORTHWESTERLY AND NORTHERLY LINE OF SAID TRACT NO.
772, AND 2SIM)" FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE
FOLLOWING COURSES AND DISTANCES: SOUTH 29 DEGREES it (:VEST 25`:.16 FEET; SOUTH 42
DEGREES 06 'NEST 131.37 FEET; SOUTH 72 DEGREES 45 WEST 138.65 FEET; NORTH 88
DEGREES 20 WEST 16.51 FEET TO A POINT IN A. LINE PARALLEL VATH THE SAID CENTER LINE
OF THE SANTA ANA RNER, AND 25(,11( FEET DISTANT THEREFROM, M EASURED AT RIGHT
ANGLES THERETO; THENCE WESTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE
SANTA ANA RIVER, AND 21MA FEET EISTANT THEREFROM, HE- LURED AT RIGHT ANGLES
112,066751- 0090
)"21smu ANW12
THERETC). THE FC )LLO%VIPK COURSE`; AND 015TAHCES: NORTH 66 DEGREES 42' 2'r' %NEST
=EET: fIORTH 78 DEc -.REES 112' WEST 504.69 FEET TO A POINT IN A. UPIE PARALLEL
WITH THE SA "D NORTHERLY UNE OF BLOCK C, EL MORO TRACT, AHD 250.))0 FEET DISTANT
THEREFRC 1:. ME.A IRED .AT RIGHT ANGLES THEREFC ); THENCE %1. ESTERLY, PARALLEL WITH
THE S.AK) P!ORTHERLY UNE OF BLOCK C, EL MORO TRACT, AND 250.00 FEET DISTANT
THEREFRC 1M, MEASURED AT RIGHT ANGLES THERETO, THE FC)LLC .VINE COARSES AND
DISTAN(-ES: I!C)RTH (i+) DEGREES 52' 34" WEST 120.39 FEET, AND NORTH 64 DEGREES ni >' 50"
WEST 21659 °EET TO A POINT IN THE EASTERLY UPIE OF SAID EASEMENT 300,01) FEET
V•lIDE, OR PURPC)SE OF MAINTAINING THE SANTA. ANA. RIVER CHANNEL: THENCE 5011TH i3
DEGREES 2 V; E` -.T ALONG SAID EASTERLY UNE OF THE RIVER CHANNEL. 25(;.04 FEET TO
THE POINT OF BE6I111MING.
EXCEPTIHCG T)IEREFROIA APIY PORTION THEREOF LYING GEP!ERALLY SOUTHERLY OF THE
AGREED BOUNDARY UPIE DESCRIBED IN EXHIBIT "E" ATTACHED TO THAT CERTAII•I
SETTLE1,1ENT AND BOUMDARY UPIE AGREEMENT, STATE AND CITY DEEDS AND CC RRORATIOPI
DEED REG:ARC:If'!G CERTAIN LANDS IP! THE COUNTY OF ORANGE, CALIFORNIA, BLA. NC). 260
RECORDED).AUGLIST 30, 1989 AS INSTRI MEIIT i'!O. 89- 41:6419 C)F SAID OFFICIAL RECORDS,.
ALSO EXCEPTING THEREFROM, THE PORTION OR PORT-,(--)PIS OF SAID LAND WHICH IS OR ARE
NOT ll-KLUDED EITHER V:4THIN THE EXTERIOR BOUNDARIES OF THE RANCHO) SANTIAGO DE
SANTA ANA, THE PATENT FOR WHICH VVAS RECORDED IUNE 28, 1884 Im BOOK 3, PAGE 3187
OF PATENTS, RECORDS OF LO' ANGELES COUNTY, INTY, CALIFORNIA, AND AS ESTABLISHED BY
SAID HEREINABC )VE DESCRIBED SETTLEMENT AND B( UND.ARY UIIE AGREEFIENT, OR 4ViTHIN
THE EXTERIOR BOUNDARIES OF LOT 1 OF SECTION 19, T( )VVNSHIP 6 SOUTH, RAPIGE 10
WEST; LOT i OF SECTIC)N 21), TO%VPISHIP 6 SOUTH, RA.I'JGE In WEST; AND LOT 1 (-)F SECT1.0i1
29, TOV;4ISHIP r -, SOUTH, ITH, RANGE lu WEST, SAN BER11ARDINC) BASE AND MERIDIAN, THE
PATENT FUR WHICH LOTS VVAS RECORDED APRIL 19, 1893 IM BOOK 1, PAGE 66 OF PATENTS,
RECORDS OF ORANGE COUNTY, CALIFORNIA, OR WITHIN ACCRETIONS OF SAID RANCHO )R
SAID LOTS.
ALSO EXCEPTING, THEREFROM, THAT PORTION INCLUDED VJITHIi'! THE PARCEL OF LAND
DESCRIBED AS PARCEL 1)3-122.1 IN THE FINAL C)RDER OF CC )PIDEMNATIC)PI RENDERED
JANUARY 2(', 1962 IN THE'LUPERIC)R COURT OF THE STATE OF CALIMRNIA, IN AND FOR THE
COUNTY C )F ORANGE, IN THE ACTION ENTITLED "ORANGE COUNTY FLOOD CONTROL
DISTRI17VS. CITY OF NEV /PORT BEACH AND OTHERS" (CASE 1,10, 77394), A CERTIFIED CC )F'1'
OF WHICH FINAL ORDER WAS RECORDED )ANUARY 30, 1962 ill BOOK 5' q3, PAGE 441 OF
OFFICIAL RECORDS, ORAfdGE COI- IP•1TY.
ALSO) EXCEPTING THEREFRC)M, THE PORTIOPI INCLUDED WITHIN THE LAND DESCRIBED 11.1
DEED) TO THE STATE C)F CALIFORNIA RECORDED FEBRUARY 14, 1966 IN BOOK 78-19, PAGE 739
OF OFFICIAL RECORDS, ORANGE COUNTY.
ALSO EY:t= EPTIP!G THEREFROM THAT POPIi(Di! DESCRIBED AS PARCEL 73170 -1 IN THAT
CERTAIN FINAL DECREE OF CONDEMNATION, SI IPERIOR COURT CASE HC . 6(,7534, k.
CERTIFIED COPY OF V;?HICH VJAS RECORDED 1AMUARY 14, 1 1';)4 AS IPl STRUMENT MC). 94-
0032781., OF SAID OFFICIAL RECORDS,
ALSO EXCEPT -N6 THEREFRCAM THOSE PORTIONS DESCRIBE[) AS PARCEL`_: 1011 103, 1116 AND
108 IN THE d'dOTi(-E OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NCI, CV 91- 3':)91 -IH, A CERTIFIED OF V;+HICH WAS RECORDED)
AUGUST 23, 1991 k5 IN',TRIIMEPIT NC). 91- 47533? OF OFFICIAL RECORDS OF SAID ORAN(P E
COUiNTr,'WHICH INCLUDES A DECLARATION OF TAKUNC,.
11- '!0!16751-41090
30219,11.12 112 9 4106(0
AL'-,C) EXCEPTING THEREFROM THOSE PORTION', CONVEYED TO ORANGE COUNT'(
SANITATION DISTRICT, ,A COUNTY 5ANITATIC&I DISTRICT ORGNlIZEC) AND EMSTIN(-,
PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTION, -, —7c0 ET SEI,). A' ,
DISCLO` -,ED BY Of C:_)CUMEf IT RECORDED AUGUST 3!1, 21106 AS INSTRUMENT h!O.
2iHU ?!u)i15F:2595 OF OFFICIAL RECI )RDS.
ALSO EXCEPTING THEREFROM, AN UNDIVIDED 3HTb INTEREST TH Ai ND TO THE TITLE AMC)
EXCLUSIVE RIGHT TO ALL OF THE MINERALS, INCLUDING, SLIT NOT ILIHITED TO, ALL
PETROLEUM, OIL; NATURAL GAS, AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS
DERIVED FROM SAID LANE) LOCATED BELLY: +J A DE,. TH OF 6200 FEET, ?L!T'' ;11TH! fUT THE
RIGHT TO USE THE SURFACE OF SAID LAND DOWN TO A DEPTH OF 551 FEET, AS RESERVED
IN THE DEED FROM HANCOCK SAPIPHNG JR. AND OTHERS, DATED AL R IST 1, 1958, RECORDED
AUGUST 29, 1958 11) BOOK =WIQ PAGE 532 OF OFFICIAL RECORDS, ORANGE COI.11,M', AND
RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PAGE 223 OF OFFICIAL RECORDS, ORANGE
COUNTY, AS AMENDED BY THE DEED DATED NOVEMBER 29, 1961 FROM HANCOCK BANNING
JR. AND OTHERS, RECORDED DECEMBER 21 1961 Ihl BOOK 5957, PAGE 665 OF OFFICIAL
RECORDS, ORANGE COUNTY.
ALSO EY.CEPTIMG THEREFROM, All UNDIVIDED 7o1 -'j INTEREST IN AND TO THE TITLE AND
EXCLUSIVE RIGHT 11) ALL OF THE MINERALS, INCLUDING, BUT NOT LIMITED TO, ALL
PETROLEUM, OIL, NATURAL GAS, AND OTHER HYDROCARBON SUBSTANCE`. AND PROULK&
DERIVED THEREFROM, IN OR UNDER, OR PRODUCIBLE FROI'-1 SAID LAND AT ANY DEPTH OR
DEPTHS 62M) FEET OR MORE SEL )Vd THE SURFACE OF SAID LAND, TOGETHER ?'''vITH THE
FREE AND UMLIMI fED RIGHT TO MIME, DRILL, BORE, OPERATE AMU REMOVE FRS TI BENEATH
THE SURFACE OF SAID LAfUl AT ANY LEVEL OR LEVEL`. 500 FEET OR MORE BELOVI THE
SURFACE OF SAID LAND, FOR THE PI IRPOSE OF DEVELOPMENT OR REMOVAL OF SAID
RESERVED SUBSTANCES, AS RESERVED IN THE DEED AND A6REEi4ENT FROPI HANCOCK
BANNING JR. AND OTHERS, RECORDED DECEMBER 27, 1961 IPd BOOK 5957, PAGE 665 OF
OFFICIAL RECORDS; ORANGE COUNTY, SUBJECT TO CERTARI LIi,IITATOi15 AND
COMTING-ENCIES CONTAINED IN SAAID DEED,
PARCEL 4:
THOSE PORTIONS OF LOT C AMC) D OF THE BANNING. TRACT, AS SHO':'JI'! ON THE MAP
ATTACHED TO THE REPORT OF THE REFEREES FILED APRIL 141 1890 IN CASE NO. 6355 IN THE
SLIPERIOR COURT OF THE STATE OF CAUFURNIA, IN AMC) FOR THE C(:)IINT1' OF LOS ANGELES,
BEING 119D A PORTION OF LOT 1 OF TRACT RIO. 463, AS SHOWN ON A MAP RECORDED IN
BOOK 32, PAGES 2 AND 3 OF HISCELLANEOUS MAPS, RECORDS OF ORANGE i_C)Ui--!TY,
CALIFORNIA, AND A. PORTION OF TRACT NCL 225(, AS SHOV.ff -I ON A MAP RECORDED 11,1 BOOK
104, PAGES 6 AND 7 OF MISCELLANEOUS MAPS, RECORDS OF C!RArdGE COUNTY, CALIFORNIA,
DESCRIBED AS A 'v;+HC)LE AS FOLLOWS:
BEGIPNIFIG AT THE h10ST EASTERLY CORMER OF TRACT I= I5 AS SHOWI-I ON A MAP
RECORDED IN BOOK 9, PAGE 19 OF MISCELLA- IEOLIS MAPS, RECORDS OF ORANGE COLIPITY,
CA.LIFORI•!IA, 0iHICH CORNER IS IN THE CENTER LINE OF SUPERIOR AVENUE, FORMERLY
NEWPORT .AVEN IE. AS SAID NEWPORT AVENUE IS SHOV01 C*) SAID MAP OF TRACT 1,10. 15,
AND ALSO IN THE SOUTHEASTERLY LIME OF SAID LOT D It THE BANNING. TRACT; THEMCE
NORTH 29 DEGREES 24'45" WEST ALONC, THE NORTHEASTERLY LINE OF SAID TRACT 1'10, 15,
Af ID ALONG THE SC)LITHWESTERLY LINE OF FIRST ADDITION TO NEWPORT MESA. TRACT, AS
SHON +, -I Ohl A 14AP RECORDED IN BOOK S, PAGE 61 OF MISCELLANEOUS HA.PS, RECORDS OF
ORAfdGE COUNTY, C.ALIFOUHA, 3691.50 FEET TO A POINT IN THE EASTERLY LIME OF
WHITTIER AVENUE. 6!I FEET lid 7214TH, AS SHCPrJM ON SAID I'4AP CIF FIRST A.DDITIOPI TO
NEWPORT MESA. TRACT; THENCE SOUGH (i DEGREES 36' 111" EAST .ALONG THE SOUTHERLY
1124166751 -0090 1 O
AWMCLv11G1 N1l
PROLONGATION OF THE 5.»110 EASTERLY 1_JI1E OF WH!TTIER.AVEfIUE, SAID PROLONGATION
N
BEING THE EASTERLY LINE OF PARCEL 1 AS DESCRIBED IN DEED E7;ECUTECI BY HANK 1CK
BANNING JR. AND OTHERS, DATED AUGUST 1, 1443, RECORDED AUGUST 29, 1958 IN BOOK
a011, PAGE 532 OF OFFICIAL RECORDS, ORANGE C:OI TRY, X0 RE- RECORDED OCTOBER G,
1958 IN BOOK 4437, PAGE 228 OF OFFICIAL RECORDS, ORANGE COUNT`', 3465.51 FEET, MORE
OR LESS, TO AN INTERSECTION %UTH A LINE ON A CURVE CONICA'VE TO THE SOI ITH'ddEST,
25(1.0(1F EET NORTHEASTERLY OF All![) PARALLEL WITH THE NORTHEASTERLY LINE OF THE
100 -FO )T RIGHT OF WAY OF THE CALIFORNIA. STATE HIGH4HAY, AS DESCRIBED ii! DEED
RECORDED APRIL 211, 1936 IN BOOK 824 PAGE 48 OF OFFICIAL RECORDS, ORANGE C(NiNT(,
A RADIAL LITHE FROM SAID PORT OF INTERSECT= BEAR`_•. SOUTH 33 DEGREES 40' 54"
A'EST; THENCE SOUTHEASTERLY, PARALLEL MRTH THE NORTHEASTERLY UNE OF SAID STATE
HIGHWA)% AND 250,1 O FEET DISTANT THEREFROP -1, MEASURED AT FIGHT ANGLES THERETO,
THE FOLLOV'ING COURSES AND CH;TANCES: THENCE SOUTHEASTERLY A.LOP!G A CURVE
COPICA''VE TO THE SOUTHWEST, HAVING A RADIUS OF Qmo FEEL', 4139 FEET; THENCE
SOUTH 54 DEGREES (16' 311" EAST, TA.P!GENT TO SAID CLIRVE, 337.(.5 FEET TO BEGINNIIPIG OF
CURVE TO THE LEFT; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE
NORTHEAST, HAVING .A RADIIJ; C)F 701!.00 FEET, AND TA.Nf_,EN1T TO THE LAST MENTIONED
COURSE. 194.57 FEET; THENCE SOUTH 711 DEGREES 05' 30" EAST, T.AN;ENT TO SAID CURVE,
376.41 FEET TO A POINT IN THE WESTERLY LINE OF THAT CERTAP! 23S2WACRE PARCEL OF
LAND AS DESCRIBED lip! DEED FROM THE FARMERS AND MERCHANTS NATIONAL BANK OF LOS
ANGELES, TRUSTEE FOR ANNE O. BANNING All][) OTHERS, TO A. E. 5. CHAFFEY AND OTHERS,
RECORDED MARCH 14, 1955 Ii! BOOK 4222., PAGE 191 OF OFFICIAL RECORDS, ORANGE
COUNTY: THENCE ALOLIG THE WESTERLY, NORTHERLY AMC) NORTHEASTERLY BOUNDARY LINE
OF SAID 2.7827 -ACRE PARCEL, THE FOLLOWING COURSES APID DISTAf10ES: NORTH 5
DEGREES 44' 2E b "LEST 16443 FEET TO THE NIOST'vVESTERLY CORNER OF SAID 2.7,Q7-ACRE
PARCEL, FROM WHICH A RADIAL LINE BEARS NORTH 20 DEGREE; 21i 15" WEST; THENCE
PIORTHEASTERLY A.LCING A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIL IS OF
451400 FEET, 23111 FEET; THENCE NORTH 39 DECREES 43' 45" EST, TANGENT TO THE LAST
MENTIONED CURVE, 75A2 FEET TO THE MOST NORTHERLY CORNER OF SAID 21 2TACRE
PARCEL, FROM WHICH A RADIAL LINE BEARS SOUTH 29 DEGREES iii 3Y 'JEST; THENCE
SOUTHEASTERLY ALONG A. CURVE CONCAVE TO THE SOUTH\ -VEST AND HAVIN(-, A RSDILIS OF
7Y,Mn FEET, A DISTANCE OF 1AL21 FEET; THENCE SOUTH 50 DEGREES 16' 15" EAST,
T.AfdGEPIT TO THE LAST NiENTIONED CURVE, 12101! FEET TO A POINT IN THE
NORTHWESTERLY LINE OF SUPERIOR AVENUE, 61? FEET IN WIDTH, FORMERLY NEVIPORT
AVENUE, AS SAID NEWPORT AVENUE IS SHOV &I Oh! SAID NAP OF TRACT P1O. 15, V"HICH
POINT FEARS NORTH 39 DEGREES 43' 45" EAST 3124 FEET FROM THE MOST EASTERLI'
CORNER OF LOT 1 IN BLOCK 1 OF SAID TRACT MC). 15; THENCE SOUTH 51! DEGREES lli' 15"
EAST 3u,00 FEET TO THE CENTER LINE OF SAID SUPERIOR AVENUE; THENCE 110UNI THE
CENTER LINE OF SAID SUPERIOR AVENUE, NORTH 39 DEGREES 43' 45" EAST 7(15.55 FEET TO
THE POINT OF BEGINNING.
EXCEPTING THEREFROM, THAT PORTION INCLUDE[) WITHIN THE FOLLOW IP1G DESCRIBED
LAND: THAT PORTION OF BLOCK C OF THE B.ANNIN!G TRACT, AS SHCA4,11I ON A 14AP ATTACHED
TO THE REPORT CIF THE REFEREES FILED APRIL It 1890 IN CASE HO. 6185 I14 THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA. IN AND FOR THE COUNTY OF L OS AI'IGELES AND THAT
PORTION OF LOTS 1111 AND 1112 AND PORTION OF SI).'TEENTH STREET .APID WHITTIER
AVENUE ADJO11UNG., AS SHOWN ON THE HAP OF fI& -.1 'ORT MESA TRACT RECORDED !Ill BOOK
5, PAGE 1 OF MISC ELI ANEOUS NAPS, RECORDS OF ORA!•!GE COUNT, CALIFORNIA,
DESCRIBED AS A Vl] IDLE AS FOLLOWS:
BEGIPIPIING AT THE I HTERSECTIOPI OF THE CENTER LINE OF SAID SB- rEENTH STREET .14ITH
THE SOUTHWESTERLY BOUPIDARY LINE OF FIRST ADDITION TO PIEVV'PORT MESA TRACT, AS
SHOWN ON A NAP RECORDED 1 N BOOK I PAGE 61 OF MISCELLAPIEOUS MAPS, RBARDS OF
11 V066751 -0041
sumoq,06'M12
ORANGE COI If ffY, CALIFORNIA; THENCE SOUTH S9 DE(=REES 21' 50" %NEST 16.50 FEET Ti i
THE BEGII IPIII`IG OF A TAN(_,ENT CARVE CONCAVE St ]LITHERL`i .AMU HAVIi!G A RADIUS OF
Silu.uu FEET; THENCE INESTERW ALONG SAN) CARVE, THR(_)UGH AN ANGLE OF 28 DEGREES
4$ 33" A DISTANCE OF 251.41 FEET TO A I'NE TANGENT; THENCE SOUTH T) DEGREES 33'
17' `.,VEST AL(DIIG SAID LINE TANGENT, A DISTANCE Ci= = U =.r -a; FEET; THENCE NORTH 29
DEGREES 26' 41' WEST 800511 FEET; THENCE NORTH 66 DEGREES 3T IP EAST N uMW FEET:
THENCE SOUTH 88 DEGREES 48'26" EAST 31657 FEET TO A. POINT IN A CARVE CONCAVE
SOUTHEASTERLY AND HAWN A RADIUS OF WM) FEET, A RADIAL IJPdE FROM SAID POINT
BEARS NORTH 89 DEGREES 21' 50" EAST; THENCE NORTHERLY ALONG SAID Cf.IRVE, THROUGH
API ANGLE OF 61 DEGREES 24' 55', A DISTANCE OF 3 .71: FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADII I S OF 9(1.U(1 FEET; THENCE
NORTHERLY .ALOPIG SAKI CURVE, THROUGH All ANGLE OF 44 DEGREES 24' S5 ", A DISTANCE
OF 6177 FEET TO A LINE TANGENT; THENCE NORTH 0 DEGREES, -".3' lo" VIEST ALOhIf; SAID
LINE TANGENT, A. DISTANCE OF 11.11 FEET TO THE SAIL' SOUTHWESTERLY BOUNDARY LINE
OF FIRST ADDITION TO NETNPORT MESA TRACT; THENCE SOUTH 29 DEGREES 26' 43" EAST
ALONG SAID SOI ITHI "iE`;TERLY BOUNDARY LINE, A DISTANCE OF 7.. :9.32 F EET TO THE POINT
OF BEGINNING.
ALSO EXCEPTIING THEREFROM, THAT PORTION INCLUDED V,BTHIN THE FOLLOV•1lidG: THAT
PORTIOPI OF LOT 1 Ai'D ALL OF LOT 2 OF TRACT HO. 463 .AS `_.HCA -Wl ON A MAP RECORDED IN
BOOK 32, PAGES 2 AND 3 OF MISCELLAI IEC)US MAPS, RECORDS OF ORAH(! E COUNTY,
CAUFORNI.A, MORE PARTICULARLY DESCRIBED AS FOLLC V-6:
BEGINNING AT THE INTERSECTION OF THE CENTER LINE OF FIFTEENTH STREET bVITH THE
CENTER LINE OF MONROVIA AVENUE, AS SHOWN ON A. HAP RECORDED i1! BOCK 65, PAGES
31 THROUGH 36 INCLI ISNE OF RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY
RECORDER OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTH a DEGREES 37' 24" EAST,
ALONG. THE CENTER LINE OF SAND MONROVIA AVENUE, 44(1.93 FEET TO THE NORTHEASTERLY
UNE OF SAID TRACT NO. 463; THENCE NORTH 29 DEGREES 26' 43" Vv_ST ALONG SAID
PIORTHEASTERLI' LINE, 27161 FEET TO THE TRUE NANT OF SECdNNISIG OF THIS
DESCRIPTION; THENCE SOUTH 29 DEGREES 26'43" SST A.LOPIG SAID f+IORTHEASTERLY UNE,
12 88.43 FEET TCI THE CENTER LINE OF SUPERIOR AVENUE; THENCE SOUTH 39 DEGREES 41'
15" VvEST, ALONG SAW CENTER UNE OF SUPERIOR AVENUE, 7(15.55 FEET; THENCE NORTH 50
DEGREES 18' 45" WEST, ALOPIG THE NORTHEASTERLY UNE OF THE L";PID DESCWBED IN A
DEED TO A. E. S. CHA.FFEY AND OTHERS, RECORDED IN BOOK 4228, PAGE 191 OF OFFICIAL
RECORDS OF SAID ORAP!GE COUIITY, AND THE SOUTHEASTERLY PROLONG.ATIOI•I THEREOF,
152m FEET TO THE BEGIP! HNG OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND
HAVING A RADIUS OF 71UH1 FEET; THENCE NORTHV;'ESTERLY 1IL21 FEET ALONG SAID
CURVE, THROUGH A CENTRAL ANGLE OF 11) DEGREES 13' 12" TO A POINT IN THE
NORTHEASTERLY LINE OF PARCEL 1, AS DESCRIBE[) IN A DEED RECORDED IN BOOK 7839,
PAGE 739 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE ALONG SAID
NORTHEASTERLY LINE, NORTH 63 DEGREES 11' 16" V-1EST Ii61!.7ii FEET TO A POINT 111 A LINE
PARALLEL WITH AND DISTANT 1100.00 FEET EASTERLY, ,AS MEASURED AT RIGHT ANGLES
FROM THE 1'dESTERLY UNE OF THE LAND DESCRIBE[) RI AAIPIEYATION NO, 54 TO THE CITY OF
I,IE:'vPORT BEACH, DECEMBER 311, 1963; THENCE ALONG SAID PARALLEL LINE, NORTH u
DEGREES 38' 1(1" %•VEST 73413 FEET IT) A LINE THAT BEARS SOIITH77 DEGREES 45' (10" VTEST
FROM THE TRUE POINT OF BEGINNING; THENCE LEAVIPIG SAID PARALLEL LINE, NORTH 77
DEGREES 4 aP E=.ST 11IU.58 FEET TO THE TRITE POINT OF BEGINNRG OF THIS
DESCRIPTION.
ALSO EXCEPTING THEREFROM, THAT PORTION INCLUDED V111AIPI THE LAND DESCRIBED IN
THE DEED TO THE STATE OF CALIFORNIA, RECORDED FEBRUARY 14, 191.6 D! BOOK 709,
PAGE 739 OF OFFICIAL RECORD`_, ORANGE COUNTY.
I 1210605 1 .009D 12
.A1w8 uu0my12
ALS(j EX(-EPTING THEkEFRt jf•1, ANY PC -)RT- )Pd Ih1CL1IL`ED WITHIN 1VHITTIEk A`JEPII IE AMC)
SIXTEENTH STREET. AS SHOVIN ON THE MAP OF f lEl'1PORT MESA TRACT RECORDED IN BOOK
5: .i;E 1 )F MISCELLAAIEOUS HAF'S; RECORDS OF C1� f'dGE COUNTY.. CALIFC)MA.
ALSIj EXCEPTING THEREFRCOIA THAT P(-)RTI(-)F•! INCLUDED !Ill THE LAND DESCRIBED 114 THE
DEED TO THE CITY OF NEV -.SORT BEACH, RECORDED JI N;7— G, 19'i5 AS 1I,F RUI4EI•IT NIC ), g5-
0237652 OF OFFICIAL RE(-C)RDS.
ALSO XCEPT11`!G THEREFROM, THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERALS,
II•ICLUM46, BUT M( )T LIMITED TO, ALL PETROLEUM, OIL, NATURAL GAS AND OTHER
HYDR(')CARB(")M SUBSTANCES AND PRODUCTS DERIVED THEREFRSj 1, IN OR UNDER, OR
PRODUCIBLE FROM SAID LAND, AT ANY DEPTH OR DEPTHS 6200 FEET OR h1ORE BELMI THE
SURFACE OF SAID LAND, TOGETHER WITH THE FREE AMC) UNLIMITED RiGHT TO MINE, DRILL,
BC)RE, OPERATE AND REMOVE FROM BENEATH THE SURFACE OF SAID LAND AT ANY LF• /EL OR
L =JELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PI- IRF'.),E OF
DEVELOPi•IENT OR REMOVAL OF SAID RESERVED SUBSTANCES. AS RESERVED IN THE DEED
AND A(-, E Ef >IT FROI'1 HAfJCOCK BAfdPlfi!G JR. AIdU IjTHERS, REC 1RDED DECEPIBER 27, 1!11 >1
IN BOOK 55157, F'AGE 66; i jF OFFICIAL RECORD.,, (-)RAPI(-,E COUNTY, SUBJECT TO CERTAIN
L1-11T.ATIC)i!S AND CONTIP!GENCIES CONT.4NED IN SAID DEEC).
ALSC> E?:CEPTIi!G THEREFROM ALL THE MINERALS, INICLI IDIMG 4'dITHOUT LIMITATIC )M ALL
011-2 G.AS AND OTHER HYC)ROCARBON SIIBST PC=', IN, C)i'1 i jR 1. -)--R THE HERE-lNAFTER
DESCRIBED LAND LYING 500 VERTICAL FEET BELC)1V THE SURFACE OF SAID LAND V:'A.S
)I.IiTCLAIN TO ARNSTROMG PETROLEUM CORPC ).RATIOM, A. CALIFORNIA CORPORATION BY AN
IPI STRUI4E1T RECORDED PIAY 5, 199: AS INSTR! IMENIT NC). 1911702116789 OF (jEFICIAL
REC(DRDS,
AF'i!: - - 170 -24, 114- 170 -43, 114- 170 -49, 114- 170 -51), 114 -170 -52, 114 - 170 -5i,, 114 - 170-72,
114- 170-73, 114-'170-75, 114- 170 -77, 114 - 170 -79, 114- 170 -33 and 424 a -1 -il-
1 1 110 6 615 1-410-90
?1121844,12 .0603112 111 1 3
l
61�
J
A'. l
EXHIBI r n
DLPIC"rm OF PROPERTY
':, I z,
11 21116675 1.0090
i02184-1.12 x0649112
SITE MAP
EXHIBIT 'B'
JUNE 6, 7017
FU$COE
N.
EXI11131 '1' B -I
DEPICHON 017 COUNTY PROPERTY
:.-1 I a
1
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EXHIBIT 'B- i vusCOE
LPL - -- JUNF 6, 7017
111106675 1-11090
i1218,14.12 e06113112
TABLE OF CONTENTS
Paec
Definitions.......................................................................................... ............................... I
2. General Provisions ........................................................................... ............................... 10
2.1 Plan Consistency, Zoning Implementat ion .......................... ............................... 10
2.2 Binding Effect ol'Agrecmenf ............................................... ............................... 10
2.3 Landowner Representations and Warranties Regarding Ownership of the
Property and Related 1Nlatters Pertaining to this Agreement .............................. 10
2.4 Term ....................................................................................... .............................10
2.5 ................................................................................................ .............................12
3. Public Benefits ................................................................................. ............................... 13
3.1 Public Benefit Pee ......... ...................................................... ............................... 13
3.2 Renegotiation of Public Benefit Pee if Development Plan Is Not Approved
by California Coastal Commission ...................................... ............................... 14
3.3 Park Lund Dedication and Improvements in Excess of Landowner's
Quimby Act Requirement; City Option to Develop North and Central
Community Parks; Possible Increase or Decrease in Public Benefit Fee........... 15
4. Development of Project ..................................................................... .............................21
4.1
Applicable Regulations; Landowner's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals_ .............................................................................. .............................21
4.2
No Conflicting Enactments .................................................... .............................22
4.3
Reservations of Aulha ity ...................................................... .............................23
4.4
Tentative Subdivision \gaps .................................................. .............................25
4.5
Responsibility for Processing Application for Coastal Development
Permit; Costs .......................................................................... .............................26
4.6
Public Financing .................................................................... .............................26
5. Amendment
or Cancellation of Agreement ....................................... .............................27
6. Enforcement
....................................................................................... .............................27
7. Annual
Review of Landowner's Compliance With Agreement ........ .............................27
7.1
General ................................................................................... .............................27
7.2
Landowner Obligation to Demonstrate Good faith Compliance .......................27
7.3
Procedure ............................................................................... .............................27
7.4
Annual Review a Non - Exclusive \leans for Determining and Requiring
Cure of Landowner's Default ................................................ .............................28
S. Events of Default ............................................................................... .............................28
8.1 General Provisions; Notice of Default and Cure Period; Judicial Reference
For Resolution of Certain Disputes ........................................ .............................28
8.2 Default by LaIIdo\ vner ........................................................... .............................29
11211166751 W90
3112134.1.12 x114113/12 1
8.3 City's Option to I crnunale Agreement ........... ...............................
8.4 Default by Cityy ................................................. ...............................
8.5 Waiver .............................................................. ...............................
8.6 Specific Performance Remedyy ......................... ...............................
8.7 Monetary Damages .......................................... ...............................
8.8 Additional City Remedy for Landowner's Default ........................
8.9 No Personal Liability ol'City Officials, Employees, or Agents or
Landowner Members, Managers, I:;mployees, or Agents ...............
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action...
9. Force Majeure ............... ...............................
P
..30
..30
..30
..30
..31
..31
..31
..31
.........................31
10. Indemnity Obligations of Landowner ................................................ .............................32
10.1 Indemnify Arising From Acts or Omission of Landownerr .... .............................32
10.2 Third Party Litigation ............................................................ .............................32
H. Assignment ........................................................................................ .............................33
12. Mortgagee Rights ............................................................................... .............................34
12.1
L' ncumbrancesonProperty .................................................... .............................34
12.2
Mortgagee Protect ion ............................................................. .............................35
12.3
Mortgagee Not Obligated ...................................................... .............................35
12.4
Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................35
13. Miscellaneous
Terms ......................................................................... .............................35
13.1
Notices ................................................................................... .............................35
13.2
Project as Private Undertaking ............................................... .............................36
13.3
Cooperation ............................................................................ .............................37
13.4
Estoppel Certificates .............................................................. .............................37
13.5
Rules of COnSII'uctlOn ............................................................ .............................37
13.6
Time Is ofthe Essencc ........................................................... .............................37
13.7
W aiver .................................................................................... .............................37
13.8
Counterparts ........................................................................... .............................38
13.9
Entire Agreement ................................................................... .............................38
13.10
Severahiliq ............................................................................. .............................38
13.11
Construction .......................................................................... .............................38
13.12
Successors and Assigns; Constructive Notice and Acceptance ..........................38
13.13
No Third Party Beneficiaries ................................................. .............................39
13.14
Applicable Law and Venue .................................................... .............................39
13.15
Section Headings ................................................................... .............................39
13.16
Incorporation of Recitals and Exhibits .................................. .............................39
13.17
Recordation ............................................................................ .............................39
1 1211106!31 0090
3021.111.12 a06113112