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HomeMy WebLinkAboutC-5387 - Development Agreement (4311-4321 Jamboree Road)RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: City Clerk Recorded in Offic'aI Records, Orange County Hugh Nguyen, Clerk -Recorder �NOEIIIII���� El IIIlII1111IIIIL��� NO FEE *$ R 0 0 0 7 6 5 9 9 5 6$* 2015000349840 8:01 am 07106115 47 411 Al2 11 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. ) il FIRST AMENDMENT TO DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and TSG-PARCEL 1, LLC, TPG/TSG VENTURE I ACQUISITION, LLC, AND UPTOWN NEWPORT JAMBOREE, LLC CONCERNING UPTOWN NEWPORT PROPERTY 4/20/2015 v2 L251052.2 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government Code sections 65864-65869.5) This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First Amendment") is dated for reference purposes as of the 3$ day of A- ( , 2015 (the "Amendment Date"), and is being entered into by and between the CITY OF NEWPORT BEACH ("City"), on the one hand, and TSG-Parcel 1, LLC, a Delaware limited liability company, TPG/TSG Venture I Acquisition, LLC, a Delaware limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the "Landowner" or "Landowners"), on the other. City and Landowners are sometimes collectively referred to in this First Amendment as the "Parties" and individually as a "Party." RECITALS A. Landowners are the owners of that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as Uptown Newport, located at 4311-4321 Jamboree Road (APN Nos. 445-131-02 and 445-131-03), and generally located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the "Property"). The Property is more particularly described in the legal description attached hereto as Exhibit A and incorporated herein by reference. B. City and Uptown Newport LP, a Delaware limited partnership, entered into that certain Development Agreement dated March 12, 2013, for reference purposes and recorded in the Official Records of Orange County on March 26, 2013, as document number 2013000180939 (the "Agreement"). All terms not otherwise defined in this First Amendment shall have the meanings given them in the Agreement. C. On or around February 14, 2014, Uptown Newport, LP, a Delaware limited partnership, transferred ownership of the Property and assigned the Agreement to TSG-Parcel 1, LLC, a Delaware limited liability company, TPG/TSG Venture I Acquisition, LLC, a Delaware limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability company. D. Under the Agreement, Landowners must pay a Public Benefit Fee to the City in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00), as adjusted according to the Agreement, per residential dwelling unit developed as part of the Project at the time each residential building permit is issued. The Parties now desire to amend the Agreement as set forth in this First Amendment to require payments of the Public Benefit Fee at the issuance of building permits, or at Landowner's option, at the issuance of certificates of occupancy per residential dwelling unit. E. In addition to constructing and improving two (2) approximately one (1) acre parks, Landowners are also required to pay certain parkland dedication in -lieu fees to the City, based on the pro -rated gross acreage of the final map minus any parkland dedication and applicable credits, for all units included on a final map at the time that the first building permit is issued for a unit on that final map. The Parties now desire to amend the Agreement as set forth in 4/20/2015 v2 -1- 1251052.2 this First Amendment to allow the Landowner, as an alternative, to defer payment of all or a portion of the parkland dedication in -lieu fees, but an interest charge will accrue and_be applied at time of payment(s), as more specifically described below. Additionally, the Parties now desire to amend the Agreement as set forth in this First Amendment to require payment of parkland dedication in -lieu fees, as applicable, on a per -unit basis at the issuance of a building permit for individual buildings in the Project. F. 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 First Amendment is consistent with the Development Agreement Ordinance. G. This First Amendment is consistent with the City of Newport Beach General Plan, including without limitation the General Plan's designation of the Property as "Mixed -Use Horizontal-2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown Newport Planned Community Development Plan. H. On March 19, 2015, the Planning Commission held a properly noticed public hearing on this First Amendment and considered the testimony and information submitted by City staff, Landowners, and members of the public. On March 19, 2015, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the Planning Commission adopted Resolution No. 1976, recommending the City Council approve this First Amendment. I. In recognition of the significant public benefits that the Agreement, as amended, provides, the City Council has found that this First Amendment: (i) is consistent with the City of Newport Beach General Plan as of the date of the Agreement and this First Amendment; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant 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 (No. ER2012-001) (SCH#2010051094) ("EIR") that has been certified by the City Council on or before the Agreement Date, which analyzed the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures related 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. J. On April 28, 2015, the City Council held a properly noticed public hearing on this First Amendment and considered the testimony and information submitted by City staff, Landowners, and members of the public. On May 12, 2015, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council held second reading and adopted Ordinance No. 2015-8, finding the First Amendment to be consistent with the City of Newport Beach General Plan and approving this First Amendment. 4/20/2015 v2 2 [251052.2 AGREEMENT NOW, THEREFORE, City and Landowners agree as follows: 1. Public Benefit Fee. Section 3.1 is hereby amended in its entirety to read as follows: "As consideration for City's approval and performance of its obligations set forth in this Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee") in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as part of the Project, with the unpaid balance of said Public Benefit Fee increased beginning on January 1, 2015, by the percentage increase in the CPI Index between the Effective Date and said January 1st date (the first "Adjustment Date") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the Term of this Agreement (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable 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 Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6-month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per unit basis at the time each residential building permit is issued, or at Landowner's option and in Landowner's sole discretion, at the time each certificate of occupancy is issued. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. Landowner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, 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 fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Landowner's default, if Landowner shall fail to timely pay any portion of the Public Benefit Fee when 4rz0/2015 v2 3 1251052.2 due City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project." 2. Park Fees. Section 3.2.1, subdivision (iv), is hereby amended in its entirety to read as follows: "In -lieu of parkland dedication fees ("Park In -Lieu Fees") shall be paid to the City prior to the issuance of building permits. Payment of Park In -Lieu Fees shall be made for all units included on any final map(s) at the time that the first building permit is issued for any single unit included on a final map(s). However, at Landowner's option and in Landowner's sole discretion, Landowner may elect to defer payment(s) of Park In -Lieu Fees for some or all units contained on any final map(s) (the "Deferred Units") until building permits are sought for the building or buildings containing those Deferred Units. In such cases, Landowner shall pay, in addition to the Park In -Lieu Fees for the Deferred Units, an interest charge in the amount of four percent (4%) per annum for any Deferred Units in Phase 1 (as Phase 1 is shown on the approved phasing plan for the Project), and five percent (5%) per annum for any Deferred Units in Phase 2 (as Phase 2 is shown on the approved phasing plan for the Project). The period in which the interest charge(s) shall apply to any particular Deferred Units shall begin at Landowner's election to defer payment of Park In -Lieu Fees for those Deferred Unit(s), and shall continue to accrue on a per annum basis until such time that Landowner actually pays the Park In -Lieu Fees for those particular unit(s) (the "Deferral Period"). The Park In -Lieu Fees for any Deferred Units shall be paid on a per -unit basis no later than upon the issuance of a building permit per individual building(s) in the Project. For example, if a building permit is sought for a building in Phase 1 that includes 100 Deferred Units, Park In -Lieu Fees plus the interest charge of four percent (4%) per annum that accrued over the Deferral Period for those Deferred Units must be paid for those 100 Deferred Units before the building permit for that building can be issued. As another example, if a building permit is sought for a building in Phase 2 that includes 300 Deferred Units, Park In -Lieu Fees plus the interest charge of five percent (5%) per annum that accrued over the Deferral Period for those Deferred Units must be paid for those 300 Deferred Units before the building permit for that building can be issued. The fee amount for Park In - Lieu Fees shall be calculated on a per -unit basis based on the pro -rated gross acreage of the final map minus any parkland dedication and applicable credits for recreational improvements approved by the City pursuant to the General Plan and the Subdivision Code within the area encompassed by the final map, then dividing the balance by the number of units contained in the area encompassed by that final map. For example, if a final map encompasses 10 acres of the 25.05 acre planned community (or 39.92% of the total acreage), the amount of the Park In - lieu Fees required to be paid on a per -unit would be 39.92% of the 13.62 acre parkland dedication requirement minus any parkland dedication and any approved credits for recreational improvements, divided by the number of units contained within that final map." 3. Full Force and Effect. Except as modified by this First Amendment, the Agreement shall remain in full force and effect. 4720/2015 v2 4 1251.052.2 4. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference. 5. Counterparts. This First Amendment may be signed by the Parties in different counterparts and the signature pages combined shall create a single document binding on all Parties. 6. Recordation. The City Clerk of City shall record this First Amendment in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.100. The date of this First Amendment and the date of recordation of this First Amendment shall not modify or amend the Effective Date or the Termination Date of the Agreement. [SIGNATURE PAGE FOLLOWS] 4,10/2015 v2 5 1251052.2 LANDOWNERS SIGNATURE PAGE TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT "LANDOWNERS" UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited liability company By: MnJ SAW r1c1 Title: c&C Sde te?.Gi r ACC,rotentr TPG/TSG VENTURE I ACQUISITION, LLC, a Delaware limited liability Pompany By: Name: on ievrnoYWt Title: Gxectc-hvt ��Le ?Cc i6lent TSG-PARCEL 1, LLC, a Delaware limited liability company By: Name:` ..21- 044+4) £4+vr4Qti Title:Ejersea st/E 4'20/2015 v2 6 1251052.2 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness. accuracy, or validity of that document. STATE OF CAJ.IFORNIA COUNTY OF ) ) On 2015, before me, _ persona ppea kd ,rn &tt AA. eta who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/slhe, executed the same in his/her authorized capacity, and that by his/her signature() on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. Notary Public, I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and gMc Siguafure: TERRI HOVDESTAD a �> Commission • 2070020 Notary Public - California %j' rrjr Orange County Comm. Eb�tices Jun 28`2018 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness. accuracy, or validity of that document. STATE OF CALIFORNIA 1 COUNTY OF Orzttr ) On JiLvwv 10 2015. before me, ?JDrne5 7evez: ) , a Notary Public, personally appeared Jon Demorest who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signatures) on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 420lob5 t2 -8- ROMEL/ T LEVEZOW Commission #< 2032462 Notary Public . California g Orange County My Comm. Expires Jul 4: 2017 i s1o3272 12-20 CITY SIGNATURE PAGE TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ATTEST: Leilani I. Brown. City Clerk APPRO TO FORM: (or) Aaron C. Harp, City Attorney CITY" CITY 77WPORT By: Lilc) v Edward D. Selick, Mayor 4202015,2 7 12510522 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 61-0_149 ) On MIA l5l 2ZC15 before me, �cVVL Rtef r Notar"cj , Date Here Insert Name and Title of the officer personally appeared FiLoord D. Se(r'c Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)' whose name is/are' subscribed to the within instrument and acknowledged to me that he/stlafthefexecuted the same in his/hpx/therir authorized capacity(es), and that by his/heTtheiFsignature(a) on the instrument the person(s)", or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. KIM RIEFF Commission • 1967536 Nobly Public - California Onage County Comm. Stints Jam 26 2016 Place Notary Seal Above WITNESS my hand and 9fficial seal. Signature OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — f l Limited ❑ General LI Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Being a subdivision of Lots I and 2 of Tract No. 7953, in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 310, Pages 7 to 11 inclusive, of Miscellaneous Maps, recorded of said County. 4202015v2 1 1251052.2 icNO RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: City Clerk Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II II II IlIlIlIlIlIlIl 11 II NO FEE *$ R 0 0 0 7 6 5 9 9 5 6$* 2015000349840 8:01 am 07/06/15 47 411 Al2 11 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. FIRST AMENDMENT TO DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and TSG-PARCEL 1, LLC, TPG/TSG VENTURE I ACQUISITION, LLC, AND UPTOWN NEWPORT JAMBOREE, LLC CONCERNING UPTOWN NEWPORT PROPERTY 4202015 v2 1251052.2 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government Code sections 65864-65869.5) This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First Amendment') is dated for reference purposes as of the xi day of , 2015 (the "Amendment Date"), and is being entered into by and between the CITY OF NEWPORT BEACH (``City"), on the one hand, and TSG-Parcel 1, LLC, a Delaware limited liability company, TPG/TSG Venture I Acquisition, LLC, a Delaware limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the "Landowner- or "Landowners"), on the other. City and Landowners are sometimes collectively referred to in this First Amendment as the "Parties" and individually as a "Party." RECITALS A. Landowners are the owners of that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as Uptown Newport, located at 4311-4321 Jamboree Road (APN Nos. 445-131-02 and 445-131-03), and generally located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the "Property"). The Property is more particularly described in the legal description attached hereto as Exhibit A and incorporated herein by reference. B. City and Uptown Newport LP, a Delaware limited partnership, entered into that certain Development Agreement dated March 12, 2013, for reference purposes and recorded in the Official Records of Orange County on March 26, 2013, as document number 2013000180939 (the ``Agreement"). All terms not otherwise defined in this First Amendment shall have the meanings given them in the Agreement. C. On or around February 14, 2014, Uptown Newport, LP, a Delaware limited partnership, transferred ownership of the Property and assigned the Agreement to TSG-Parcel 1, LLC, a Delaware limited liability company, TPG/TSG Venture I Acquisition, LLC, a Delaware limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability company. D. Under the Agreement, Landowners must pay a Public Benefit Fee to the City in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00), as adjusted according to the Agreement, per residential dwelling unit developed as part of the Project at the time each residential building permit is issued. The Parties now desire to amend the Agreement as set forth in this First Amendment to require payments of the Public Benefit Fee at the issuance of building permits, or at Landowner's option, at the issuance of certificates of occupancy per residential dwelling unit. E. In addition to constructing and improving two (2) approximately one (1) acre parks, Landowners are also required to pay certain parkland dedication in -lieu fees to the City, based on the pro -rated gross acreage of the final map minus any parkland dedication and applicable credits, for all units included on a final map at the time that the first building permit is issued for a unit on that final map. The Parties now desire to amend the Agreement as set forth in 4i20.'2015 v2 -1- 1251052.2 this First Amendment to allow the Landowner, as an alternative, to defer payment of all or a portion of the parkland dedication in -lieu fees, but an interest charge will accrue and_be applied at time of payment(s), as more specifically described below. Additionally, the Parties now desire to amend the Agreement as set forth in this First Amendment to require payment of parkland dedication in -lieu fees, as applicable, on a per -unit basis at the issuance of a building permit for individual buildings in the Project. F. 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 First Amendment is consistent with the Development Agreement Ordinance. G. This First Amendment is consistent with the City of Newport Beach General Plan, including without limitation the General Plan's designation of the Property as "Mixed -Use Horizontal-2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown Newport Planned Community Development Plan. H. On March 19, 2015, the Planning Commission held a properly noticed public hearing on this First Amendment and considered the testimony and information submitted by City staff, Landowners, and members of the public. On March 19, 2015, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the Planning Commission adopted Resolution No. 1976, recommending the City Council approve this First Amendment. I. In recognition of the significant public benefits that the Agreement, as amended, provides, the City Council has found that this First Amendment: (i) is consistent with the City of Newport Beach General Plan as of the date of the Agreement and this First Amendment; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant 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 (No. ER2012-001) (SCH#2010051094) ("EIR") that has been certified by the City Council on or before the Agreement Date, which analyzed the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures related 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. J. On April 28, 2015, the City Council held a properly noticed public hearing on this First Amendment and considered the testimony and information submitted by City staff, Landowners, and members of the public. On May 12, 2015, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council held second reading and adopted Ordinance No. 2015-8, finding the First Amendment to be consistent with the City of Newport Beach General Plan and approving this First Amendment. 4:20 2015 v2 2 1251052.2 AGREEMENT NOW, THEREFORE, City and Landowners agree as follows: 1. Public Benefit Fee. Section 3.1 is hereby amended in its entirety to read as follows: "As consideration for City's approval and performance of its obligations set forth in this Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee") in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as part of the Project, with the unpaid balance of said Public Benefit Fee increased beginning on January 1, 2015, by the percentage increase in the CPI Index between the Effective Date and said January 1st date (the first "Adjustment Date") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the Term of this Agreement (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable 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 Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6-month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per unit basis at the time each residential building permit is issued, or at Landowner's option and in Landowner's sole discretion, at the time each certificate of occupancy is issued. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. Landowner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, 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 fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Landowner's default, if Landowner shall fail to timely pay any portion of the Public Benefit Fee when 4/20/2015 v2 3 1251052.2 due City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project." 2. Park Fees. Section 3.2.1, subdivision (iv), is hereby amended in its entirety to read as follows: "In -lieu of parkland dedication fees (``Park In -Lieu Fees") shall be paid to the City prior to the issuance of building permits. Payment of Park In -Lieu Fees shall be made for all units included on any final map(s) at the time that the first building permit is issued for any single unit included on a final map(s). However, at Landowner's option and in Landowner's sole discretion, Landowner may elect to defer payment(s) of Park In -Lieu Fees for some or all units contained on any final map(s) (the "Deferred Units") until building permits are sought for the building or buildings containing those Deferred Units. In such cases, Landowner shall pay, in addition to the Park In -Lieu Fees for the Deferred Units, an interest charge in the amount of four percent (4%) per annum for any Deferred Units in Phase 1 (as Phase 1 is shown on the approved phasing plan for the Project), and five percent (5%) per annum for any Deferred Units in Phase 2 (as Phase 2 is shown on the approved phasing plan for the Project). The period in which the interest charge(s) shall apply to any particular Deferred Units shall begin at Landowner's election to defer payment of Park In -Lieu Fees for those Deferred Unit(s), and shall continue to accrue on a per annum basis until such time that Landowner actually pays the Park In -Lieu Fees for those particular unit(s) (the "Deferral Period"). The Park In -Lieu Fees for any Deferred Units shall be paid on a per -unit basis no later than upon the issuance of a building permit per individual building(s) in the Project. For example, if a building permit is sought for a building in Phase 1 that includes 100 Deferred Units, Park In -Lieu Fees plus the interest charge of four percent (4%) per annum that accrued over the Deferral Period for those Deferred Units must be paid for those 100 Deferred Units before the building permit for that building can be issued. As another example, if a building permit is sought for a building in Phase 2 that includes 300 Deferred Units, Park In -Lieu Fees plus the interest charge of five percent (5%) per annum that accrued over the Deferral Period for those Deferred Units must be paid for those 300 Deferred Units before the building permit for that building can be issued. The fee amount for Park In - Lieu Fees shall be calculated on a per -unit basis based on the pro -rated gross acreage of the final map minus any parkland dedication and applicable credits for recreational improvements approved by the City pursuant to the General Plan and the Subdivision Code within the area encompassed by the final map, then dividing the balance by the number of units contained in the area encompassed by that final map. For example, if a final map encompasses 10 acres of the 25.05 acre planned community (or 39.92% of the total acreage), the amount of the Park In - lieu Fees required to be paid on a per -unit would be 39.92% of the 13.62 acre parkland dedication requirement minus any parkland dedication and any approved credits for recreational improvements, divided by the number of units contained within that final map." 3. Full Force and Effect. Except as modified by this First Amendment, the Agreement shall remain in full force and effect. 4 20'2015 v2 4 1251052.2 4. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference. 5. Counterparts. This First Amendment may be signed by the Parties in different counterparts and the signature pages combined shall create a single document binding on all Parties. 6. Recordation. The City Clerk of City shall record this First Amendment in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.100. The date of this First Amendment and the date of recordation of this First Amendment shall not modify or amend the Effective Date or the Termination Date of the Agreement. [SIGNATURE PAGE FOLLOWS] 4,20i2015 v2 5 1251052.2 LANDOWNERS SIGNATURE PAGE TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT "LANDOWNERS" UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited liability company By: % J Nan(e:.,�p4 ) S.4A) r04.47 Title: tte7 XWW Illara.g0aV%r TPG/TSG VENTURE I ACQUISITION, LLC, a Delaware limited liability;ompany By: Name: ` G' n vno Title: GXec t.-h vex %?(esl(tent TSG-PARCEL 1, LLC, a Delaware imited liability company}} By: , Gt�.�.lA®. Name O4 Q Q •4.tir 11 Title:P ra-elE tiZeiE AALACE44.17 4 20 2015 v2 6 1251052.2 A notary public or other otiicer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached. and not the truthfulness. accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On .gt ,2015, before me, persona 1 ppeakd() &/j 44, l who proved to me on the basis of satisfactory evidence be the person whose name is subscribed to the within instrument and acknowledged to me that he s7 he.executed the same in his/he, authorized capacity, and that by his/It signatureN on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the paragraph is true and correct. WITNESS my hand and .ffic°.l .eal. Sign: ure: e State of Califo. z z Nota Public, hat the foregoing TERRI HOVDESTAD Commission # 2070020 Notary Public - California Orange County M Comm. Ex • ires Jun 28 2018 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness. accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF O!?iI X/ �IJ-VI On e/ io UJ, 2015, before nte, me (c� 7Le i/e i a Notary Public, personally appeared Jon Demorest who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/hear authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ROMELY T. LEVEZOW Commission # 2032462 Notary Public - California 1 Orange County My Comm. Expires Jul 4, 2017 4202©0 12-20 CITY SIGNATURE PAGE TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ATTEST: Leilani I. Brown, City Clerk APPRO TO FORM: ((or) Aaron C. Harp, City Attorney 4?0201 2 "CITY" CITY OFE7\CH By: Edward D. Selieh, Mayor 7 1251(152.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of OF—CCIn..G On Hock <il 5, �Z O s before me, 14- ( VVL R. t e [ v0 Larci Th (I C , Here Insert Name and Title of the Officer Fritz c r. D. Se (c'r-Jrv. Date personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)" whose name(sr is/are- subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hpr/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(si, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. +a KIM RIEFF ;. - Commission # 1967536 ', 1 NotaryPublic - California x t% Orange County - MY Comm. ExPires Jan 26, 2016� Place Notary Seal Above WITNESS my hand and official seal. Signature Signature of Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Being a subdivision of Lots I and 2 of Tract No. 7953, in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 310, Pages 7 to 11 inclusive, of Miscellaneous Maps, recorded of said County. 420'2015 v2 1 1251052.2 1111111111111111111111.1 � DATE: TO: FROM: MATTER: SUBJECT: cco earl CITY OF NEWPORT BEACH CITY ATTORNEY'S OFFICE February 20, 2014 Leilani Brown, City Clerk Kimberly Brandt, Community Development Department Leonle Mulvihill, Assistant City Attorney) Conexant; Uptown Newport - Shopoff Development No.: Al2-00122 Partial Assignment and Assumption of Development Agreement Attached for your records (original for City Clerk, copy for CDD) is a copy of the Partial Assignment and Assumption of Development Agreement whereby Parcel 3 of Parcel Map #2013-108 was assigned from Uptown Newport LP to TPG/TSG Venture 1 Acquisition LLC (TPG/TSG) last week. Pursuant to the terms of that certain Development Agreement between the City and Uptown Newport LP Concerning Uptown Newport Property recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California, this partial assignment provides TPG/TSG the rights and obligations under the Development Agreement as to Parcel 3. 012-00122J-Memo re Partial Assignment VIA CERTIFIED MAIL AND US MAIL RETURN RECEIPT REQUESTED February City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663-3884 Attn: City Manager City Attorney City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663-3884 , 2014 Re: Notice of Partial Assignment of Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property To Whom It May Concern: This letter is submitted by Uptown Newport LP, a Delaware limited partnership ("Assignor") in accordance with Section 11 of that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). Assignor is the "Owner" under the Development Agreement. The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). Substantially concurrently herewith, Assignor is conveying to Assignee by Grant Deed all right, title, and interest in and to Parcel 3 of the Uptown Property, legally described as follows: Parcel 3 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property"). 2679/023511-0019 6666019.2 a02/12/14 By this letter, Assignor is giving notice to the City of Newport Beach ("City") of Assignor's partial transfer and assignment of the Development Agreement, concurrently with Assignor's conveyance of the Property to TPG/TSG Venture I Acquisition LLC, a Delaware limited liability company ("Assignee"). Additionally, Assignor is assigning to Assignee, and Assignee is accepting and shall be responsible, for all of Assignor's rights (except as described above), duties, benefits, and obligations under the Development Agreement with respect to the Property. Upon Assignment of the Development Agreement, the Assignee shall be the "Owner" under the Development Agreement with respect to the Property. A copy of the Assignment and Assumption of Development Agreement is enclosed. Further notice to Assignee may be made to the following address: TSG/TSG Venture I Acquisition, LLC c/o The Shopoff Group, L.P. 2 Park Plaza, Suite 700 Irvine, California 92614 Attn: William A. Shopoff With a copy to: TPG/TSG Venture I Acquisition LLC c/o The Picerne Group 30950 Rancho Viejo Road, Suite 200 San Juan Capistrano, California 92675 Attention: Ken Picerne If you have any questions regarding this letter, please do not hesitate to ask. Sincerely, "ASSIGNOR" UPTOWN NEWPORT LP, a Delaware limited partnership By: The Shopoff Corporation, a Delaware corporation, general partne l By: William A. Shopof', Pr - side "ASSIGNEE" TPG/TSG VENTURE I ACQUISITION, LLC, a Delaware limited liability company By: TPG 2014-2 (Uptown Newport) LLC, a Delaware limited liability company its Managing Member By: ../" I K nneth A. Picerne, President 2679/023511-0019 6666019.2 a02/12/14 -6- VIA CERTIFIED MAIL AND US MAIL RETURN RECEIPT REQUESTED February 1.3 , 2014 City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663-3884 Attn: City Manager City Attorney City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663-3884 CITY OF NEWPORT BEACH RECEIVED BY DA FEB 13 2014 OFFICE OF THE CITY ATTORNEY Re: Notice of Partial Assignment of Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property To Whom It May Concern: This letter is submitted by Uptown Newport LP, a Delaware limited partnership ("Assignor") in accordance with Section 11 of that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). Assignor is the "Owner" under the Development Agreement. The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). Substantially concurrently herewith, Assignor is conveying to Assignee by Grant Deed all right, title, and interest in and to Parcels 2 and 4 of the Uptown Property, legally described as follows: Parcels 2 and 4 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property"). NOTICE OF ASSIGNMENT Page 1 of 2 By this letter, Assignor is giving notice to the City of Newport Beach ("City") of Assignor's partial transfer and assignment of the Development Agreement, concurrently with Assignor's conveyance of the Property to Uptown Newport Jamboree, LLC, a Delaware limited liability company ("Assignee"). Additionally, Assignor is assigning to Assignee, and Assignee is accepting and shall be responsible, for all of Assignor's rights (except as described above), duties, benefits, and obligations under the Development Agreement with respect to the Property. Upon Assignment of the Development Agreement, the Assignee shall be the "Owner" under the Development Agreement with respect to the Property. A copy of the Assignment and Assumption of Development Agreement is enclosed. Further notice to Assignee may be made to the following address: Uptown Newport Jamboree, LLC c/o The Shopoff Group, L.P. 2 Park Plaza, Suite 700 Irvine, CA 92614 Attn: William A. Shopoff With a copy to: Jackson DeMarco Tidus Peckenpaugh 2030 Main Street, 12`h Floor Irvine, CA 92614 Attn: Gregory P. Powers, Esq. If you have any questions regarding this letter, please do not hesitate to ask. Sincerely, "ASSIGNOR" UPTOWN NEWPORT LP, a Delaware limited partnership "ASSIGNEE" By: The Shopoff Corporation, a Delaware corporation, its General Partner illiam A. Shopof President UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited liability company By: Willia NOTICE OF ASSIGNMENT N A. Shopoff, Man, jer Page 2 of 2 RECORDING REQUESTED BY: First American Title Insurance Company WHEN RECORDED MAIL TO: Gromet & Associates 114 Pacifica, Suite 250 Irvine, CA 92618 Attention: Stevan J. Gromet, Esq. (Space Above For Recorder's Use) PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT (this "Partial Assignment") is made and entered into as of February 14, 2014 (the "Effective Date"), by and between UPTOWN NEWPORT LP, a Delaware limited partnership ("Assignor"), and TPG/TSG VENTURE I ACQUISITION LLC, a Delaware limited liability company ("Assignee"). RECITALS A. Assignor is the "Landowner" under that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). B. Concurrently herewith, Assignor is conveying to Assignee Parcel 3 of the Uptown Property, legally described as follows: Parcel 3 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property"). C. In connection with such conveyance, Assignor desires to assign to Assignee all of its rights and obligations under the Development Agreement relating to the Property, and Assignee wishes to accept such assignment, effective as of the Effective Date, as more particularly set forth below. APPROVED AS TO FORM: PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPM . yGREEMET Page 1 of 4 Attorney 2 Jil i y D. Pursuant to clause (iv) of the second paragraph of Section 11 of the Development Agreement, a successor Landowner must provide substitute security for any security posted by the transferring Landowner with the City of Newport Beach. Since no security has been posted or is required to be posted under the Development Agreement prior to this Partial Assignment, the requirement of said clause (iv) is not applicable. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment. Effective as of the Effective Date, Assignor does hereby transfer and assign to Assignee all of its right, title and interest in and to, and obligations under, the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) to the extent such right, title, interest, and obligations related to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property. 2. Assumption. Effective as of the Effective Date, Assignee hereby accepts said assignment and agrees to keep, perform and be bound by all the terms, covenants and conditions contained in the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) on the part of the "Landowner" therein to the extent such terms, covenants and conditions related to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property, as though Assignee were the original "Landowner" under the Development Agreement (the "Obligations"). In accordance with Section 11 of the Development Agreement, the parties hereby confirm that, subject to the satisfaction of the conditions specified in the last paragraph of Section 11 of the Development Agreement, as determined by the City of Newport Beach: (a) Assignee alone shall be liable for the performance of the Obligations relating to the Property, provided that, except as otherwise provided above, Assignee shall have no obligations with respect to any portion of the Uptown Property other than the Property; and (b) In accordance with Section 11 of the Development Agreement, Assignor is relieved of its duty to perform (and released from) the Obligations with respect to the Property. Assignor shall continue to have the obligation for performance of all obligations under the Development Agreement not assumed by Assignee pursuant to this Partial Assignment. 3. Miscellaneous. This Partial Assignment can be amended only by an amendment in writing in a form subject to the reasonable approval by the City Attorney (or his designee) and signed by all the parties, and any term herein can be waived only by a written waiver signed by the party against whom such waiver is to be asserted. This Partial Assignment is intended to be the final expression of the parties' agreement and supersedes any and all prior restrictions, promises, representations, warranties, agreements, understandings and undertakings between the parties with respect to the within subject matter. There are no restrictions, promises, representations, warranties, agreements, understandings or undertakings with respect to such subject matter other than those set forth or referred to herein. This Partial Assignment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed APPROVED AS TO FO PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT C RE MEN Page 2 of 4 l�l>,4/ City Attorney shall be deemed to be an original and all of which taken together shall constitute one and the same document. IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Partial Assignment as of the date first above written. "ASSIGNOR" UPTOWN NEWPORT LP, a Delaware limited partnership By: The Shopoff Corporation, a Delaware corporation, general partner By: William A. Shopoff, President STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) "ASSIGNEE" TPG/TSG VENTURE I ACQUISITION, LLC, a Delaware limited liability company By: TPG 2014-2 (Uptown Newport) LLC, a Delaware limited liability company its Managing Member By: Kenneth A. Picerne, President On February , 2014, before me, TERRI HOVDESTAD, Notary Public, personally appeared WILLIAM A. SHOPOFF, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) February , 2014 PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPME AMP". age 3 of 4 'City Attorney STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On February , 2014, before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) February , 2014 OVED AS TO FO 7-\/,\A. City Attorney 216;4lif PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTPage 4 of 4 Reaobbro Requeekd th Hal American f fi. Compony Ibmebullder SeMcee Division Subdivision Depanrml cl5- 2403 RECORDING REQUESTED BY: First American Title Insurance Company WHEN RECORDED MAIL TO; Gromet & Associates 114 Pacifica, Suite 250 Irvine, CA 92618 Attention: Stevan J. Gromet, Esq. Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I II 11111 III IIIIIIIII I IIIII I DI III IIII I I III 18.E • S 0 0 0 6 5 0 7 9 3 5$* 201400006035612:05 pm 02114114 19405A31F13 4 0.00 OM 0.00 0.00 9.00 0.00 0.00 0.00 (Space Above For Recorder's Use) PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT (this `Partial Assignment") is made and entered into as of February 14, 2014 (the "Effective Date"), by and between UPTOWN NEWPORT LP, a Delaware limited partnership ("Assignor"), and TPG/TSG VENTURE I ACQUISITION LLC, a Delaware limited liability company ("Assignee"). JtECITA,LS A. Assignor is the "Landowner" under that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). B. Concurrently herewith, Assignor is conveying to Assignee Parcel 3 of the Uptown Property, legally described as follows: Parcel 3 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property"). C. In connection with such conveyance, Assignor desires to assign to Assignee all of its rights and obligations under the Development Agreement relating to the Property, and Assignee wishes to accept such assignment, effective as of the Effective Date, as more particularly set forth below. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 1 of 4 Recording Requested Br first American Title Company Homebuilder Services Division Subdivision Department v5s 2403 RECORDING REQUESTED BY: First American Title Insurance Company WHEN RECORDED MAIL TO: Gromet & Associates 114 Pacifica, Suite 250 Irvine, CA 92618 Attention: Stevan J. Gromet, Esq. (Space Above For Recorder's Use) PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT (this "Partial Assignment") is made and entered into as of February 14, 2014 (the "Effective Date"), by and between UPTOWN NEWPORT LP, a Delaware limited partnership ("Assignor"), and TPG/TSG VENTURE I ACQUISITION LLC, a Delaware limited liability company ("Assignee"). RECITALS A. Assignor is the "Landowner" under that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). B. Concurrently herewith, Assignor is conveying to Assignee Parcel 3 of the Uptown Property, legally described as follows: Parcel 3 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property'). C. In connection with such conveyance, Assignor desires to assign to Assignee all of its rights and obligations under the Development Agreement relating to the Property, and Assignee wishes to accept such assignment, effective as of the Effective Date, as more particularly set forth below. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 1 of 4 D. Pursuant to clause (iv) of the second paragraph of Section 11 of the Development Agreement, a successor Landowner must provide substitute security for any security posted by the transferring Landowner with the City of Newport Beach. Since no security has been posted or is required to be posted under the Development Agreement prior to this Partial Assignment, the requirement of said clause (iv) is not applicable. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment. Effective as of the Effective Date, Assignor does hereby transfer and assign to Assignee all of its right, title and interest in and to, and obligations under, the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) to the extent such right, title, interest, and obligations related to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property. 2. Assumption. Effective as of the Effective Date, Assignee hereby accepts said assignment and agrees to keep, perform and be bound by all the terms, covenants and conditions contained in the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) on the part of the "Landowner" therein to the extent such terms, covenants and conditions related to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property, as though Assignee were the original "Landowner" under the Development Agreement (the "Obligations'). In accordance with Section 11 of the Development Agreement, the parties hereby confirm that, subject to the satisfaction of the conditions specified in the last paragraph of Section 11 of the Development Agreement, as determined by the City of Newport Beach: (a) Assignee alone shall be liable for the performance of the Obligations relating to the Property, provided that, except as otherwise provided above, Assignee shall have no obligations with respect to any portion of the Uptown Property other than the Property; and (b) In accordance with Section 1 I of the Development Agreement, Assignor is relieved of its duty to perform (and released from) the Obligations with respect to the Property. Assignor shall continue to have the obligation for performance of all obligations under the Development Agreement not assumed by Assignee pursuant to this Partial Assignment. 3. Miscellaneous. This Partial Assignment can be amended only by an amendment in writing in a form subject to the reasonable approval by the City Attorney (or his designee) and signed by all the parties, and any tens herein can be waived only by a written waiver signed by the party against whom such waiver is to be asserted. This Partial Assignment is intended to be the final expression of the parties' agreement and supersedes any and all prior restrictions, promises, representations, warranties, agreements, understandings and undertakings between the parties with respect to the within subject matter. There are no restrictions, promises, representations, warranties, agreements, understandings or undertakings with respect to such subject matter other than those set forth or referred to herein. This Partial Assignment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 2 of 4 shall be deemed to be an original and all of which taken together shall constitute one and the same document. IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Partial Assignment as of the date first above written. "ASSIGNOR" UPTOWN NEWPORT LP, a Delaware limited partnership By: The Shopoff Corporation, a Delaware corporation, general partner STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE "ASSIGNEE" TPG/TSG VENTURE I ACQUISITION, LLC, a Delaware limited liability company By: TPG 2014-2 (Uptown Newport) LLC, a Delaware limited liability company its Managing Member /� UJ By: K eth A. Piceme, President On February 142014, before me, TERRI HOVDESTAD, Notary Public, personally appeared WILLIAM A. SHOPOFF, who proved to me on the basis of satisfactory evidence to be the person( whose name(s) is/ake,subscribed to the within instrument and acknowledged to me that he/shb/they_executed the same in his/h'Stheir authorized capacity(ick), and that by his/h'er/their signature(4on the instrument the person'(s$,or the entity upon behalf of which the person. acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and . •'al seal. Si e TERRIHOVDESTAD Commission # 1891635 Notary Public - California s Orange County [ My Comm. Expires Jun 28, 2014 C s_ (Seal) February %J 2014 PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTPage 3 of 4 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) / - - On February i , 201f44 before me,,��Vf l� N�Mil ha , Notary Public, I� personally appeared YU4. -b t' I A .P 1 t i r MC_ , who proved to me on the basis of satisfactory evidence to be the persona whose name(s)is/Arssubscribed to the within instrument and acknowledged to me that hels1 ely#eyy executed the same in his/h�r/t 1f 4 authorized capacitytteQ, and that by his/h'isr,4 signature(s)on the instrument the person o the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 1 TERRI HOVDESTAD E Commission 0 1891635 L WITNESS my h• d ial se• %a Notary Public - California z � Orange County y[ My Comm. Expires Jun 28, 2014 C Signature ��� % (Seal) February 2014 PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTPage 4 of 4 Reoo,dMDRe9uSedit: First Amer TweCompany IbSubdiMxin lgi Deportment SS zGGoz RECORDING REQUESTED BY: First American Title Insurance Company WHEN RECORDED MAIL TO: Gromet & Associates 114 Pacifica, Suite 250 Irvine, CA 92618 Attention: Stevan J. Gromet, Esq. Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 1111111111111111111111111111H 11111111 IIII III IIIII 15.00 *S9000650793355* 201400006035412 05 pm 02114(14 19 405 A31 F13 3 0.00 0.00 0.00 0.00 6.00 0.00 0.00 0.00 (Space Above For Recorder's Use) PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT (this `Partial Assignment") is made and entered into as of February 14, 2014 (the "Effective Date"), by and between UPTOWN NEWPORT LP, a Delaware limited partnership ("Assignor"), and TSG — PARCEL 1, LLC, a Delaware limited liability company ("Assignee"). RECITALS A. Assignor is the "Landowner" under that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of' Orange County, California (the "Uptown Property's). B. Concurrently herewith, Assignor is conveying to Assignee Parcel 1 of the Uptown Property, legally described as follows: Parcel 1 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property"). C. In connection with such conveyance, Assignor desires to assign to Assignee all of its rights and obligations under the Development Agreement relating to the Property, and Assignee wishes to accept such assignment, effective as of the Effective Date, as more particularly set forth below. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 1 of 3 Recording *wasted FirsttAmerCompa ny lkmebu�$ervi ion y ss Deportment 2602. RECORDING REQUESTED BY: First American Title Insurance Company WHEN RECORDED MAIL TO: Gromet & Associates 114 Pacifica, Suite 250 Irvine, CA 92618 Attention: Stevan J. Gromet, Esq. (Space Above For Recorder's Use) PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT (this "Partial Assignment's) is made and entered into as of February 14, 2014 (the "Effective Date"), by and between UPTOWN NEWPORT LP, a Delaware limited partnership ("Assignor"), and TSG — PARCEL 1, LLC, a Delaware limited liability company ("Assignee"). RECITALS A. Assignor is the "Landowner" under that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). B. Concurrently herewith, Assignor is conveying to Assignee Parcel 1 of the Uptown Property, legally described as follows: Parcel 1 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property's). C. In connection with such conveyance, Assignor desires to assign to Assignee all of its rights and obligations under the Development Agreement relating to the Property, and Assignee wishes to accept such assignment, effective as of the Effective Date, as more particularly set forth below. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page I of 3 D. Pursuant to clause (iv) of the second paragraph of Section 1 1 of' the Development Agreement, a successor Landowner must provide substitute security for any security posted by the transferring Landowner with the City of Newport Beach. Since no security has been posted or is required to be posted under the Development Agreement prior to this Partial Assignment, the requirement of said clause (iv) is not applicable. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment. Effective as of the Effective Date, Assignor does hereby transfer and assign to Assignee all of its right, title and interest in and to, and obligations under, the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) to the extent such right, title, interest, and obligations relate to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property. 2. Assumption. Effective as of the Effective Date, Assignee hereby accepts said assignment and agrees to keep, perform and be bound by all the terms, covenants and conditions contained in the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) on the part of the "Landowner" therein to the extent such terms, covenants and conditions relate to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property, as though Assignee were the original "Landowner" under the Development Agreement (the "Obligations"). In accordance with Section 11 of the Development Agreement, the parties hereby confirm that, subject to the satisfaction of the conditions specified in the last paragraph of Section 11 of the Development Agreement, as determined by the City of Newport Beach: (a) Assignee alone shall be liable for the performance of the Obligations relating to the Property, provided that, except as otherwise provided above, Assignee shall have no obligations with respect to any portion of the Uptown Property other than the Property; and (b) In accordance with Section 11 of the Development Agreement, Assignor is relieved of its duty to perform (and released from) the Obligations with respect to the Property. Assignor shall continue to have the obligation for performance of all obligations under the Development Agreement not assumed by Assignee pursuant to this Partial Assignment. 3. Miscellaneous. This Partial Assignment can be amended only by an amendment in writing in a form subject to the reasonable approval by the City Attorney (or his designee) and signed by all the parties, and any term herein can be waived only by a written waiver signed by the party against whom such waiver is to be asserted. This Partial Assignment is intended to be the final expression of the parties' agreement and supersedes any and all prior restrictions, promises, representations, warranties, agreements, understandings and undertakings between the parties with respect to the within subject matter. There are no restrictions, promises, representations, warranties, agreements, understandings or undertakings with respect to such subject matter other than those set forth or referred to herein. This Partial Assignment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same document. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 2 of 3 IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Partial Assignment as of the date first above written. "Assignor" "Assignee" UPTOWN NEWPORT LP, a Delaware limited partnership By: The Shopoff Corporation, a Delaware corporation, general partner By: TSG—PARCEL 1, LLC, a Delaware limited liability comgann� By: William A. Shopoff; Manager STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On February f a 2014, before me, TERRI HOVDESTAD, Notary Public, personally appeared WILLIAM A. SHOPOFF, who proved to me on the basis of satisfactory evidence to be the person'(s,1_ whose name(S)�isfase subscribed to the within instrument and acknowledged to me that hel&he41te executed the same in histbr4lieir,authorized capacitytls), and that by hislhhet/t t signatuit(on the instrument the person( or the entity upon behalf of which the personnacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hands and o J 'al CP TERRIHOVDESTAD Commission it 1891635 Notary Public - California Orange County At Comm. Ex Tres Jun 28, 2014 (Seal) February 1 2014 PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 3 of 3 INstA eetan !Ma Comppaq N0 Stia"A'emwwi o�lBente iIvIstaa Y 55 251A RECORDING REQUESTED BY: First American Title Insurance Company WHEN RECORDED MAIL TO: Gromet & Associates 114 Pacifica, Suite 250 Irvine, CA 92618 Attention: Stevan J. Gromet, Esq. Recorded in Official Records, Orange County Hugh Nguyen,Clerk.Recorder 11111111111111110111.111111111111 II I IIII IIIII 1 II I111$11 II115.00 $ 0 0 0 6 5 0 0219147141 5+ 201400006035212:05 pm 19405A31F13 3 0.00 0.00 0.00 0.00 6.00 0.00 0.00 0.00 (Space Above•For Recorder's Use) PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT - -, AGREEMENT (this "Partial Assignment") is made and entered into as of February 14, 2014 (the "Effective Date"), by and between UPTOWN NEWPORT LP, a Delaware limited partnership ("Assignor"), and UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited liability company ("Assignee'). RECITALS A. Assignor is the "Landowner" under that certain Development Agreement between City of Newport Beach and Uptown Newport LP. Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). B. Concurrently herewith, Assignor is conveying to Assignee Parcels 2 and 4 of the Uptown Property, legally described as follows: Parcels 2 and 4 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of' Parcel Maps, Records of Orange County, California (the "Property"). C. In connection with such conveyance, Assignor desires to assign to Assignee all of its rights and obligations under the Development Agreement relating to the Property, and Assignee wishes to accept such assignment, effective as of the Effective Date, as more particularly set forth below. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 1 of 3 first r Nanatwllder Sot Division Subdibision Deportment y ss is9 RECORDING REQUESTED BY: First American Title Insurance Company WHEN RECORDED MAIL TO: Gromet & Associates 114 Pacifica, Suite 250 Irvine, CA 92618 Attention: Stevan J. Gromet, Esq. (Space Above.For Recorder's Use) PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT (this "Partial Assignment") is made and entered into as of February 14, 2014 (the "Effective Date"), by and between UPTOWN NEWPORT LP, a Delaware limited partnership ("Assignor"), and UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited liability company ("Assignee"). RECITALS A. Assignor is the "Landowner" under that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property, recorded on March 26, 2013, as Instrument No. 2013-000180939 in the Official Records of the County Recorder of Orange County, California (the "Development Agreement"). The Development Agreement relates to that certain real property located in the City of Newport Beach, County of Orange, State of California, and legally described as: Parcels 1-4, inclusive, of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Uptown Property"). B. Concurrently herewith, Assignor is conveying to Assignee Parcels 2 and 4 of the Uptown Property, legally described as follows: Parcels 2 and 4 of Parcel Map No. 2013-108 in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 378, Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County, California (the "Property"). C. In connection with such conveyance, Assignor desires to assign to Assignee all of its rights and obligations under the Development Agreement relating to the Property, and Assignee wishes to accept such assignment, effective as of the Effective Date, as more particularly set forth below. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 1 of 3 D. Pursuant to clause (iv) of the second paragraph of Section 11 of the Development Agreement, a successor Landowner must provide substitute security for any security posted by the transferring Landowner with the City of Newport Beach. Since no security has been posted or is required to be posted under the Development Agreement prior to this Partial Assignment, the requirement of said clause (iv) is not applicable. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment. Effective as of the Effective Date, Assignor does hereby transfer and assign to Assignee all of its right, title and interest in and to, and obligations under, the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) to the extent such right, title, interest, and obligations relate to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property. 2. Assumption. Effective as of the Effective Date, Assignee hereby accepts said assignment and agrees to keep, perform and be bound by all the terms, covenants and conditions contained in the Development Agreement (including the Development Approvals and all documents and instruments relating to or implementing the Development Agreement) on the part of the "Landowner" therein to the extent such terms, covenants and conditions relate to the Property, including any obligations that must be performed outside of the Property that are a condition precedent to Assignee's right to develop the Property, as though Assignee were the original "Landowner" under the Development Agreement (the "Obligations"). In accordance with Section 11 of the Development Agreement, the parties hereby confirm that, subject to the satisfaction of the conditions specified in the last paragraph of Section 11 of the Development Agreement, as determined by the City of Newport Beach: (a) Assignee alone shall be liable for the performance of the Obligations relating to the Property, provided that, except as otherwise provided above, Assignee shall have no obligations with respect to any portion of the Uptown Property other than the Property; and (b) In accordance with Section 11 of the Development Agreement, Assignor is relieved of its duty to perform (and released from) the Obligations with respect to the Property. Assignor shall continue to have the obligation for performance of all obligations under the Development Agreement not assumed by Assignee pursuant to this Partial Assignment. 3. Miscellaneous. This Partial Assignment can be amended only by an amendment in writing in a form subject to the reasonable approval by the City Attorney (or his designee) and signed by all the parties, and any term herein can be waived only by a written waiver signed by the party against whom such waiver is to be asserted. This Partial Assignment is intended to be the final expression of the parties' agreement and supersedes any and all prior restrictions, promises, representations, warranties, agreements, understandings and undertakings between the parties with respect to the within subject matter. There are no restrictions, promises, representations, warranties, agreements, understandings or undertakings with respect to such subject matter other than those set forth or referred to herein. This Partial Assignment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same document. PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 2 of 3 IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Partial Assignment as of the date first above written, "Assignor" "Assignee" STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE UPTOWN NEWPORT LP, a Delaware limited partnership By: The Shopoff Corporation, a Delaware corporation, general partner By: illiam A. Shopoff, P'resid n UPTOWN NEWPORT JA BOREE, LLC, a Delaware limited liability e mpany By: lliam A. Shope f, an. :er On February >a.., 2014, before me, TERRI HOVDESTAD, Notary Public, personally appeared WILLIAM A. SHOPOFF, who proved to me on the basis of satisfactory evidence to be the persons). whose nameEs) is/8ra.. subscribed to the within instrument and acknowledged to me that hefshsLthaj executed the same in his/herithajr authorized capacity i s), and that by his/h�r(t r S signature), on the instrument the person')., or the entity upon behalf of which the persons) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand a jficial seal. TERRI HOVDESTAD E Commission a 1891635 C < Notary Public Californle Orange County Io My Comm. Expires Jun 28, 2014 E (Seal) February ia. , 2014 PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 3 of 3 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663-3884 Attn: City Clerk Recorded in Officia Records, 0 ange County Renee Ramirez, Assistan Clerk Recorder II II II ��IIII InNII III I I I11 II NO FEE *$ R 0 0 0 5 7 1 2 3 2 0$* 2013000180939 12:38 pm 03126/13 47 422 Al2 35 0.00 0.00 0.00 0.00 102,00 0.00 0.00 0.00 (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and UPTOWN NEWPORT LP CONCERNING UPTOWN NEWPORT PROPERTY 2,152013 Execution Copy TABLE OF CONTENTS Page Definitions 3 2. General Provisions 7 2.1 Plan Consistency, Zoning Implementation 7 2.2 Binding Effect of Agreement 7 2.3 Landowner Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement 7 2.4 Term 7 3. Public Benefits 8 3.1 Public Benefit Fee 8 3.2 Other Public Benefits 9 4. Development of Project 11 4.1 Applicable Regulations; Landowner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals 11 4.2 No Conflicting Enactments 12 4,3 Reservati.ons of Authority 13 4.4 Tentative Subdivision Maps 15 5. Amendment or Cancellation of Agreement 15 6. Enforcement 15 7. Annual Review of Landowner's Compliance With Agreement 16 7.1 General 16 7.2 Landowner Obligation to Demonstrate Good Faith Compliance 16 7.3 Procedure 16 7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Landowner's Default 16 8. Events of Default 16 8.1 General Provisions 16 8.2 Default by Landowner 17 8,3 City's Option to Terminate Agreement 17 8.4 Default by City 17 8.5 Waiver 18 8.6 Specific Performance Remedy 18 8.7 Monetary Damages 18 8.8 Additional City Remedy for Landowner's Default 18 8.9 No Personal Liability of City Officials„ Employees, or Agents 18 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action 19 9. Force Majeure 19 2i14,2013 v2 Page 10. Indemnity Obligations of Landowner 19 10.1 Indemnity Arising from Acts or Ommissions of Landowner 19 10.2 Third Party Litigation 20 10.3 Environmental Indemnity 20 I1. Assignment 20 12. Mortgagee Rights 21 12.1 Encumbrances on Property 21 12.2 Mortgagee Protection 22 12.3 Mortgagee Not Obligated 22 12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure 22 13. Miscellaneous Terms 23 13.1 Notices 23 13.2 Project as Private Undertaking 23 13.3 Cooperation 24 13.4 Estoppel Certificates 24 13.5 Rules of Construction 24 13.6 Time Is of the Essence 24 13.7 Waiver 24 13.8 Counterparts 24 13.9 Entire Agreement 25 13.10 Severability 25 13.11 Construction 25 13.12 Successors and Assigns; Constructive Notice and Acceptance 25 13.13 No Third Party Beneficiaries 26 13.14 Applicable Law and Venue 26 13.15 Section Headings 26 13.16 Incorporation of Recitals and Exhibits 26 13.17 Recordation 26 214,2013 v2 DEVELOPMENT AGREEMENT (Pursuant to California Government Code sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes as of the 1, lay ofm Z012 (the "Agreement Date"), and is being entered into by and between the CITY OF NEWPORT BEACH ("City"), and UPTOWN NEWPORT LP, a Delaware limited partnership ("Landowner"). City and Landowner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Landowner is the owner of that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as Uptown Newport, located at 4311-4321 Jamboree Road (APN # 445-131-02, 445-131-03), and generally located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the "Property"). The Property is more particularly described in the legal description attached hereto as Exhibit A and is depicted on the site map attached hereto as Exhibit B. 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 Legislature adopted California Government Code sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. 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. D. As detailed in Section 4 of this Agreement and the Development Plans (as defined herein), Landowner has agreed to provide the following significant public benefits as consideration for this Agreement: Payment of a public benefit fee in the sum of thirty-two thousand five hundred dollars ($32,500.00) per residential dwelling unit developed as part of the Project (as defined herein), including an annual adjustment to the public benefit fee based on the Consumer Price Index ("CPI"). • Park land dedication and improvements consistent with applicable State law and Municipal Code provisions, including the dedication and improvement of over two (2) acres of on -site public parkland. • Perpetual private maintenance of over two (2) acres of on -site public parks. 2142013 v3 -1- • Improvement of private open space, including paseos and urban plazas that will be accessible to the public and connect the Project and surrounding properties to promote connectivity and pedestrian travel in the Airport Area. • Remediation of soil and groundwater contamination on the Property that has existed on -site since the mid-1980's. • Reduction in greenhouse gases generated within the Airport Area. • Reduction in electric, gas, water and sewer utility usage through the redevelopment of an existing industrial manufacturing site into a residential mixed use project. Reduction of urban runoff volumes and implementation of stormwater runoff water quality facilities that will improve the quality of storn3water runoff entering the Newport Back Bay. Construction of affordable housing units within the Project that will provide affordable housing opportunities to Newport Beach residents. E. This Agreement is consistent with the City of Newport Beach General Plan, including without limitation the General Plan's designation of the Property as "Mixed -Use Horizontal-2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown Newport Planned Community Development Plan that is being adopted and approved by the City Council concurrently with its approval of this Agreement in order to establish appropriate zoning to regulate land use and development of the Property consistent with the General Plan, F. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant 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. 2006011119) and the final Environmental Impact Report (No. ER2012-001) (SCH#2010051094) ("EIR") that has been certified or is being certified for approval by the City Council on or before the Agreement Date, both of which analyze the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures related 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 February 7, 2013, 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. Il. On February 26, 2013, 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 3 12 t 13 , 2013, consistent with applicable provisions of the Development Agreement 2(142013 v3 2 Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. a01b-6, (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Landowner agree as follows: Definitions, In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No.o2015-6approving and adopting this Agreement. "Agreement" shall mean this Development Agreement, 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. "CEQA" shall mean the Califomia Environmental 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 et seq.), as the same maybe amended from time to time. "City" shall mean the City of Newport Beach, a California charter city, and any successor gnee 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 in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Depaitinent of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, 2JI4,20t3 v3 including but not limited to: grading; the construction of infrastructure and public facilities 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 terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, 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 Govenunent Code sections 65864-65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any 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 for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the following: (1) the Development rights as provided under this Agreement; (2) Uptown Newport Planned Community Development Plan Adoption No. PC2012-001 which consists of Land Uses, Development Standards and Procedures (dated _ J 13 ), Design Guidelines (dated (2/ 4. 13 ), and. Phasing Ian dated ); (3) Planned Community Development Plan Amendment No. PD201I- 03; (4) Tentative Tract Map No. NT2012-002; (5) Affordable Housing hnplementation Plan No. AH2O12-001; (6) Traffic Study No. TS2012-005; (7) Site Plan 9-19-2012); (11) Environmental Impact Report No. ER2012-001 (SCH#2010051094); and (12) all conditions of approval and all mitigation measures approved for the Project on or before the Agreement Date. "Development Regulations" shall mean the following regulations as they are in effect as of the Effective Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposedafter the Effective 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 use, 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 Termof this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions and inclusionary housing), and Title 20 of the Municipal Code (planning, zoning and density bonus), but specifically excluding all other sections of the Municipal Code, including 2 4,20I3 v3 4 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 any 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; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after 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 certified resulting in upholding and approving the Adopting Ordinance and such Development Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed 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 required to appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, 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, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property 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 1980, 42 U.S.C. Sections 9601, et seq., 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, et seq., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.. as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C, Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U,S.C. Sections 7401 et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et seq. "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006-76, excluding any amendment after the Effective Date that impairs or restricts Landowner's rights set forth in this Agreement, unless such amendment is expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically 214,2013 v3 5 agreed to by Landowner. The Land Use Plan of the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under arty Environmental Law. "Landowner" shall mean Uptown Newport LP, a Delaware limited partnership, and any successor or assignee to all or any portion of the right, title, and interest of Uptown Newport LP in and to ownership of all or a portion of the Property. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "Party" or "Parties" shall mean either City or Landowner or both, as determined by the context. "Project" 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. "Property" is described in Exhibit A and depicted on Exhibit B. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "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 Effective Date and during the Tenn of this Agreement to adopt or impose requirements for any such Subsequent Development Approvals that do not exist as of the Agreement Date, "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Ternination Date" and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section 11 of this Agreement. 2/142013 v3 6 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 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 2.3 Landowner Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. 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 natural 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 this 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 party; (vi) that neither Landowner nor any co- owner comprising Landowner is the subject of any voluntary or involuntary bankruptcy or insolvency petition; and (vii) 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)-(vi), 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 "Term") shall commence on the Effective Date and shall terninate on the "Termination Date." Notwithstanding any other provision set forth in this Agreement to the contrary, if either Party reasonably determines that the Effective Date of this Agreement will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non -appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations 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 2 1420)3 v3 7 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 full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall similarly be null and void at such time. The Teluiination Date shall be the earliest of the following dates: (i) the fifteenth (15th) anniversary of the Effective Date, as said date may be extended in accordance with Section 5.1 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; (iii) as to any separate legal lot within the Property (but not as to the balance of the Property or the portion thereof that remains subject to this Agreement at such time), upon the "Lot Termination Date" (defined below); or (iv) completion of the Project in accordance with the terms of this Agreement, including Owner'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(ies) or private entity(ies) of all required offers of dedication. As used herein, the term "Lot Termination Date" for 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 leased (for a period longer than one year), individually or in a "bulk" of four or fewer lots, to a member of the public or other ultimate user; (ii) a final Certificate of Occupancy or "Release of Utilities" has been issued for the building or buildings approved for construction on said lot; (iii) the duties under this Agreement and the Development Plan have been fully satisfied with respect to said lot; (iv) the Master Site Improvements as described in and required by the Development Plan, and approved as part of the Master Site Development Plan review, have been completed for said lot. Notwithstanding any other provision set forth 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 Date) shall survive the Termination Date of this Agreement. 3. Public Benefits. 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee") in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as part of the Project, with the unpaid balance of said Public Benefit Fee increased beginning on January 1, 2015, by the percentage increase in the CPI Index between the Effective Date and said January tst date (the first "Adjustment Date") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the Term of this Agreement (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated 2114n013 v3 8 based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6-month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per unit basis at the time each residential building permit is issued. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. Landowner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, 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 fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (Califomia Government Code Section 66000 el seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Landowner's default, if Landowner shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project. 3.2 Other Public Benefits. In addition to the Public Benefit Fee, the direct and indirect benefits City expects to receive pursuant to this Development Agreement are as follows: 3.2.1 Park Land Dedication and Improvements. Based upon the number of residential dwelling units approved in the Development Plan, City calculated that Landowner's park land dedication for the Project pursuant to the City General. Plan, Government Code Section 66477 ("Quimby Act") and Municipal Code Chapter 19.52 is 13.62 acres. City acknowledges that Landowner's performance of its obligations as set forth in this section satisfies all of Landowner's General Plan, Quimby Act and Municipal Code Chapter 19.52 obligations governing park land dedication and fees. City acknowledges that Landowner shall be eligible to receive credit against the payment of fees or dedication of land consistent with the General Plan, Quimby Act and Municipal Code Chapter 19.52. As of the Effective Date, the established fair market value per acre figure used in assessing in -lieu of park dedication fees equals Two Million Five Hundred Thousand Dollars (S2,500,000). Landowner fees and credit shall be based on the established Two Million Five Hundred Thousand Dollars (S2,500,000) per acre. Landowner shall undertake the following: i. On -Site Parks. Landowner shall construct and improve two (2), one (1) acre parks within the Property pursuant to the Development Plan. Landowner shall offer the two (2) on -site parks to the City for dedication in fee simple, and City shall accept Landowner's offer for dedication provided that the parks have been completed in accordance 2,14,2013 v3 9 with the requirements of the Development Plan. The parks may be offered for dedication and accepted by the City either together as one action or separately at different times. The two (2) parks shall be privately maintained (by Landowner or the Master Association as defined in the Development Plan) in perpetuity and in accordance with the Development Plan as set forth in a separate written maintenance and license agreement approved as to form by the City Attomey. Such agreement shall grant Landowner and/or the private Master Association access to the parks and the park facilities, including drainage and stormwater runoff facilities, for operation and maintenance. The maintenance and license agreement shall also provide for Landowner or Master Association's responsibility for maintaining stormwater and water quality improvements in perpetuity and in accordance with the Development Plan. Landowner shall be eligible to receive credit against the payment of fees or dedication of land for park construction and dedication. The dollar amount of the credit shall be based on land value and final park construction and improvement costs, (excluding land value), which shall be review and approved by the Community Development Director and shall include, but not be limited to, the cost to design, engineer, construct, install, supervise and inspect the park and improvements, including 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. The credit shall be determined by the Community Development Director at the time the City accepts the offer of dedication. ii. Public Recreational Open Space Areas. Landowner shall construct and improve public recreational open space areas pursuant to the Development Plan. Public recreational open space areas shall be open to the public but privately owned and maintained by Landowner or a private master association in perpetuity and in accordance with the Development Plan. Pursuant to General Plan land use policy 6.15.16, Landowner may be eligible to receive up to thirty percent (30%) credit against the payment of fees or dedication of land for such open space recreational areas. The dollar amount of the credit shall be based on land value established by multiplying the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). The percentage credit and the eligible acreage shall be determined by the Community Development Director at the time final improvement plans are approved. The acreage of open space that is accessible to the public during daylight hours, visible from public rights -of -way and of sufficient size to accommodate recreational use by the public may be eligible for credit. Public open space recreational area construction costs shall not be considered for credit. iii. Private Recreational Amenities. Landowner shall construct and improve private recreational amenities and open space pursuant to the Development Plan. Private recreational amenities shall be privately owned and maintained in perpetuity by Landowner or a private master association. For private recreational amenities, Landowner may be eligible to receive up to twenty percent (20%) credit against the payment of fees or dedication of land. The dollar amount of the credit shall be based on land value established by multiplying the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). The percentage credit and the eligible acreage shall be determined by the Community Development Director at the time building plans are submitted. Credited private recreational facilities include active recreation facilities such as playfields, turfed play areas, tot lots, recreation buildings, swimming pools and playing courts, and similar facilities. Privately maintained bicycle or hiking trails that connect to trails outside the Property and which are open to the public shall be eligible. Passive open space, such as setback areas and passive greenbelts shall not be eligible. 2/14'2013 v3 10 iv. In -lieu of parkland dedication fees shall be paid to the City prior to the issuance of building permits. Payment shall be made for all units included on any final map(s) at the time that the first building permit is issued for any single unit included on a final map(s). The fee amount shall be based on the pro -rated gross acreage of the final map minus any parkland dedication and applicable credits for recreational improvements approved by the City pursuant to the General Plan and the Subdivision Code within the area encompassed by the final map. For example, if a final map encompasses 10 acres of the 25.05 acre planned community (or 39.92% of the total acreage), the fee required prior to final map recordation would be 39.92% of the 13.62 acre parkland dedication requirement minus any parkland dedication and any approved credits for recreational improvements. 3.2.2 AHIP. The Parties have agreed to an Affordable Housing Implementation Plan No. AH2012-001(the "AHIP") to identify the manner in which Project is to satisfy the City's affordable housing requirements, pursuant to Municipal Code Chapter 19.53 (Inclusionary Housing) and Chapter 20.32 (Density Bonus). Landowner agrees to implement the AHIP. 3.2.3 Undergrounding of Electrical Lines City and Landowner may cooperate in good faith with each other in connection with the formation of an assessment district, if any, and construction of underground utility lines. 4. Development of Proiec 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 Tenn 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 or prevent 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 requirements 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, or (iv) any environmental approvals that may be required under CEQA or any other federal or state 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)-(iv) of this 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 laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal 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 or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. 2-14noi 11 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 these 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 size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic and, in addition, Landowner may apply to City fbr 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. 4.2 No Conflicting Enactments. Except to the extent City 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 Effective Date to the extent it conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, 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 Construction Co. v, City of Camarillo (1984) 37 Ca1.3d 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 property 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, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Effective Date. 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 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 this Agreement or otherwise conflicts with the express provisions of this Agreement. Z i4 20 4.3 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govem 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 Property, 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 be required to pay all applicable processing and permit fees 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 peuuits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Owner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time 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 Property. 4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Landowner shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Landowner and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction for the Project has been established and fixed by City in this Agreement or the conditions of approval for any of the Development Regulations approved on or before the Agreement Date City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Landowner's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing in this Agreement is intended or shall be deemed to vest Landowner against the obligation to pay any of the following (which are not included within the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees 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 facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, 2,142013 v3 13 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 State Laws and Regulations. Federal and state laws and regulations that override Landowner's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Landowner does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that 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, state, or City law 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 of this 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 suchoverriding 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 withsuch overriding federal, state, 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 is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Landowner's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, 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 Agreement. 4.3.8 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 a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacity, Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Landowner or the Property any utility capacity, service, or facilities that may be needed to serve the Project, 214 2013 v3 14 whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project 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 as and when service connections are provided and service commences). 4.4 Tentative Subdivision Maps City agrees that Landowner may file and process new and existing vesting tentative maps for the Property consistent with California Government Code sections 66498.1-66498.9 and City of Newport Beach Municipal Code chapter 19.20. Pursuant to the applicable provision of the California Subdivision Map Act (California Govenunent Code section 66452.6(a)), the life of any tentative subdivision map approved for the Property, whether designated a "vesting tentative map" or otherwise, shall be extended for the Term of this Agreement. 4.5 Light Industrial Land Uses Light industrial land uses will cease on the Property as of March 12, 2027. 5. Amendment or Cancellation of Agreement Other than modifications of this Agreement under Section 8.3 of this Agreement, 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 Municipal. Code section 15.45.060 or by unilateral termination by City in the event of an uncured default of Landowner. 5.1 Extension. Landowner may request up to, and upon receipt of a written request from Landowner, City shall grant two (2) five (5) year extensions that extend the Term of this Agreement for a total of ten (10) additional years provided that Landowner has submitted its written request to extend this Development Agreement and the following has occurred: (1) For the first five (5) year extension, building permits for the two hundred fiftieth (250th) units have been issued; and (2) For the second five (5) year extension, receipt of building permits for five hundredth (500th) units have been issued. 6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite 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. 214/2013 v3 15 7. Annual Review of Landowner's Compliance With Agreement. 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 from time to time 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. 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. The 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, complied with the terms of this Agreement. If the City Council finds that Landowner has so complied, the annual review shall be concluded. If 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 that relates to the payment of money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) days for reasons which are beyond the control of Landowner, Landowner must commence the cure within such thirty (30) days and diligently pursue such cure to completion. If Landowner fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non -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. 8. Events of Default. 8.1 General Provisio In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default 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 2i14:2013 v3 16 alleged Default and a reasonable manner and sufficient period of time (twenty (20) days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) days in the event of non -monetary Defaults) in which the Default must 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 legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a 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) days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. 8.2 Default by Landowner. If Landowner is alleged to have committed Default and it disputes the claimed Default, 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 next available City Council meeting to consider Landowner's appeal of the Notice of Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Landowner's appeal of the Notice of Default is timely and in good faith but after a public hearing of Landowner's appeal the City Council concludes that Landowner is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Landowner's appeal is communicated to Landowner. 8.3 City's Option to Terminate Agreement. In the event of an alleged Landowner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Landowner with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Landowner timely appeals any Notice of Default 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 a Default. The validity of any termination may be judicially challenged by Landowner. Any such judicial challenge must be brought within ninety (90) calendar days of service on Landowner, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default 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 the Default within the Cure Period, Landowner may pursue any equitable remedy available to it under this Agreement, including, without limitation, an action for 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) 2; 74'20I3 v3 17 days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the 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. Due 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 has 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 Property, to utilize the Property or provide for other benefits and alternatives. Landowner and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the temps 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 Landowner if City fails to carry out its obligations under this Agreement or to compensate City if Landowner falls to carry out 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; 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 Fees due from 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 the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. 8.8 Additional City Remedy 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 receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Landowner's Default without recourse from Landowner or its successors or assigns. 8.9 No Personal Liability of City Officials, Employees, or Agents. No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement. 2!I42013v3 18 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the 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 Califomia 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' fees, 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 Majeure. Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperfounance 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 Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Landowner's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indemnity Obligations of Landowner. 10.1 Indemnity Arising From Acts or Omissions of Landowner. Except to the extent caused by the intentional misconduct or negligent acts, errors or omissions of City or one or more of City's officials, employees, agents, attomeys, and contractors (collectively, the "City's Affiliated Parties") , 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 reasonable attorneys' fees and costs) (collectively, a "Claim") 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 Property or pursuant to this Agreement. City shall have the right to select and retain counsel 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. 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 Litigation. In addition to its indemnity obligations set forth in Section 10.1, Landowner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect 2,14 19 thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of reasonable attomey'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 indemnify, defend, and hold City hauuless from such Claim until Landowner is so notified and if City fails to cooperate in the defense of a Claim Landowner shall not be responsible to defend, indemnify, and hold hauuless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Landowner's indemnity obligation, provided that such counsel shall reasonably cooperate with Landowner in an effort to minimize the total litigation expenses incurred by Landowner. In the event either City or Landowner recovers any attomey's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Landowner shall be entitled to retain the same (provided it has fully perfomred 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 Date. 10.3 Environmental indemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Agreement Date Landowner shall indemnify, defend, and hold hauuless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation reasonable attomey'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 Property 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 the Project. The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. 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, 11. 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 the effective date of the Transfer, shall become the "Landowner" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such transfer shall include the assignment and assumption of Landowner's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof 21(a2013 v3 70 so Transferred and shall be made in strict compliance with the following conditions precedent; (i) no transfer or assignment of any of Landowner's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any proposed Transfer, Landowner (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Landowner and in a form 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 transferring Landowner with respect to the Property 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 outside of the Property so Transferred that are a condition precedent to the successor Landowner's right to develop the portion of the Property so "Transferred. Any Permitted Transferee 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 enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Landowner with respect to the balance of the Property. Notwithstanding any Transfer, 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 Agreement 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 seewity 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 th.e Property or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor Landowner either provides security reasonably satisfactory to City or otherwise demonstrates 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. Mortgagee Rights. 12.1 Encumbrances on Property. The Parties agree that this Agreement shall not prevent or limit Landowner in any manner from encumbering the Property, any part of the Property, or any improvements on the Property 2/14fl0H v3 21 with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Mortgagee 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 Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12,3, a Mortgagee will not have any obligation or duty under the teinis 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 the 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 condition 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 Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the 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, but not an obligation, to cure the Default within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and within sixty (60) days after receiving a Notice of Default with respect to a non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the 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 sixty (60) days after obtaining possession and, except in case of emergency or to protect the public health or safety, 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 the sixty (60)-day period. In the case of a non -monetary Default that cannot with diligence be remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non -monetary Default within sixty (60) days and diligently prosecutes the cure to completion. 2/14/2013 v3 22 13. Miscellaneous Terms, 13.1 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, retum receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663-3884 Attn: City Manager With a copy to: City Attorney City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663-3884 TO LANDOWNER: Uptown Newport, LP c/o The Shopoff Group, L.P 2 Park Plaza, Suite 700 Irvine, CA 92614 Attn: William A. Shopoff With a copy to: Jackson DeMarco Tidus Peckenpaugh 2030 Main Street, l2th Floor Irvine, CA 92614 Attn: Gregory P. Powers, Esq. Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to he delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above. 13.2 Project as Private Undertaking. The Development of the Project is a 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 3,I4-2013 v3 23 partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the property. 13.3 Cooperation. 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 time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file 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 Estoppel Certificates. At any time, 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, if this 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 the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppelcertificate shall execute and return the certificate within thirty (30) days following receipt. 13.5 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminin mandatory; and "may" is permissive. 13.6 Time Is of the Essence. sna s Time is of the essence regarding each provision of this Agreement as to which time is an element. 13.7 Waiver. The failure 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 Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 13.8 Counterparts. 2/142013 v3 ?4 This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which 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 except for the Affordable Housing Implementation Plan (No. AH2012-001). 13.10 Severability. The Parties intend thateach and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the 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 Party 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 this Agreement if any of Landowner's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free 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 has been drafted after extensive negotiation and revision. Both City and Landowner are sophisticated parties who were represented by independent counsel 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 of contract 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 to, 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 the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or 2114,201.3 v3 25 entity who now or later owns or acquires any right, title, or interest in any part of the Project 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 involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or he enforceable by any other person or entity. 13.14 Applicable 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 Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 13.15 Section Headings. All section headings and subheadings are 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 DESIGNATION DESCRIPTION A Legal Description of Property B Depiction of the Property 13.17 Recordation. The 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 65868.5 and City of Newport 2114.291 3 v3 26 Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. [SIGNATURE PAGE FOLLOWS] 2'1424t3 v3 27 City Clerk Aaron Harp, City Attorney SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "LANDOWNER" UPTOWN NEWPORT LP, a Delaware limited partnership By: G&I VI NEWPORT CORP., a Delaware corporation, its General Partner "CITY" By: 2- Name: Jean Marie April Its: Vic CITY OF NE By: Keith D. Cur , Mayor e 2/142013 v3 28 STATE OF C-A—LIFORN-1-A- COUNTY OF OR-AN-C;E iti On+C-E 116V , `4 3ci3 , before me, the undersigned, a Notary Public in and for said State, personally a� wired ..� (" proved Y } p �` al �) trial t� P�'l.(� ,who to me on the basis of satisfactory evidence to be thepersons 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. I certify under PENALTY OF PERJURY under the laws of the State ohat the foregoing paragraph is true and correct. itness my ha \)\C, d and official seal. Notary Public i4 and l said County and State STATE OF CALIFORNIA COUNTY OF ORANGE SUSAN f" A T T ✓BUSS(. Notary I r > >w York No. OlEA.60:21152. QuaHted in KmaS CO,u, im on' xpss v.. ,. On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same intheir 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public in and for said County and State 2.'142013 v2 -29- EXHIBIT A LEGAL DESCRIPTION Being a subdivision of Lots 1 and 2 of Tract No. 7953, in the City of Newport Beach, County of Orange, State of Califomia, as shown on a map recorded in Book 310, Pages 7 to 11 inclusive, of Miscellaneous Maps, recorded of said County. EXHIBIT B DEPICTION OF PROPERTY 2,142013 v2 Exhibit B 11-urtr, Yrt: , . _ThrUTII-MT • mTtrirrl7,,,,,, , 4-,,11=1;‘474V is7 CkMaster Site Plan Uptown Newport k. Uptown Newport LP 55.1111401145/ .154140 Pt21172 141040454420055 60 564 1244 Parklueatle 122 205 1.6102740 0 11.010 050504.511.14001451070 14 11 Soul 46541400 1101 1104 15.01 NM*, VUMPfi 11, ,1111'7)Th. 'our ,01E000.i Novan7er10,2012 \T„,/