Loading...
HomeMy WebLinkAbout2012-17 - Approving Development Agreement No. DA2008-003 For Newport Banning Ranch Located at 5200 West Coast Highway (PA2008-114)ORDINANCE NO. 2012 -17 AN ORDINANCE OF THE CITY OF NEWPORT BEACH APPROVING DEVELOPMENT AGREEMENT NO. DA2008 -003 FOR NEWPORT BANNING RANCH LOCATED AT 5200 WEST COAST HIGHWAY (PA2008 -114) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Newport Banning Ranch, LLC, with respect to a 401.1- gross- acre property generally located north of West Coast Highway, south of 19th Street, and east of the Santa Ana River requesting approval of a Development Agreement; General Plan Amendment to the Circulation Element; Code Amendment; a Pre- annexation Zone Change; Planned Community Development Plan; Master Development Plan; Tentative Tract Map; Affordable Housing Implementation plan; and Traffic Phasing Ordinance Traffic Study. 2. Consistent with the City's General Plan Land Use Element Policies LU 6.4.2 through LU 6.4.4, the applicant proposes a planned community, which may include the development of up to 1,375 residential dwelling units, a 75 -room resort inn and ancillary resort uses, and up to 75,000 square feet of commercial uses, and would provide approximately 51.4 gross acres of parklands, and the preservation of approximately 252.3 gross acres of permanent open space. 3. California Government Code Section 65864 et seq. sets forth the findings and determinations of the California Legislature that a city may enter into a development agreement for the development of real property in order to provide assurance to the applicant for a development project that upon approval of the project, the applicant, among other things, may proceed with the project in accordance with existing policies, rules and regulations. A Development Agreement is required under Newport Beach Municipal Code Section 15.45.020 because the project requires a Zoning Code amendment that includes the development of more than fifty (50) residential units. 4. The subject property is located within the City of Newport Beach Planned Community (PC -25) Zoning District and the County of Orange Zoning Suburban Multi- family Residential (R-4), Local Business Commercial (C -1), Light Industrial (M -1) with Oil Production (0), Sign Restriction (SR), and Floodplain Zone (FP -2) Overlays. The City intends to annex that portion of the subject property currently within the County of Orange. 5. The City of Newport Beach General Plan Land Use Element category is Open Space /Residential Village (OS /RV). 6. The subject property is located within the coastal zone. The Coastal Land Use Plan (CLUP) designates this property as a Deferred Certification Area; therefore, the policies of the CLUP do not govern the development of the project site. In accordance with City Council Ordinance No. 2012 -17 Paae 2 of 5 Government Code Section 65869, a development agreement shall not be applicable to any development project located in area for which a local coastal program is required to be prepared and certified pursuant to the requirements of the California Coastal Act, Cal. Public Resources Code Section 30000 et seq., unless the California Coastal Commission approves such development agreement by formal commission action. 7. Study sessions were held on January 19, 2012, February 9, 2012, February 23, 2012, and March 8, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. 8. Public hearings on the project application were held on March 22, 2012, April 19, 2012, and June 21, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of these meetings was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. 9. The Planning Commission held public hearings on March 22, 2012, April 19, 2012 and June 21, 2012. At the hearing on June 21, 2012 with a vote of 6 -0, the Planning Commission recommended the City Council: a) Certify Environmental Impact Report No. ER2009 -002 (SCH No. 2009031061); b) Approve General Plan Amendment No. GP2008 -008, Code Amendment No. CA2008 -004, Planned Community Development Plan No. PC2008 -002, Master Development Plan No. MP2008 -001, Tentative Tract Map No. NT2008 -003, Affordable Housing Implementation Plan No. AH2008 -001, and Traffic Study No. TS2008 -002 and recommending to the City Council the adoption of a Statement of Overriding Considerations; and c) Approve the Development Agreement concerning Newport Banning Ranch Property (DA2008 -003). 4. The City Council public hearing was held on July 23, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. FINDINGS 1. In accordance with Municipal Code Section 15.45.020.A.2.a, a development agreement is required in conjunction with the City approval because the project requires a Zoning Code amendment that includes the development of more than fifty (50) residential units. 2. The Development Agreement includes all the mandatory elements for consideration. City Council Ordinance No. 2012 -17 Page 3 of 5 a. The Development Agreement specifies a twenty -five (25) year term; and b. The Development Agreement specifies a development plan that includes permitted uses of the property, the density or intensity of the uses, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, and conditions, terms, restrictions, and requirements for subsequent discretionary actions; and c. The Development Agreement provides specified times for the construction and completion of certain improvements on the North Community Park, Central Community Park, and the segment of North Bluff Road between 17th Street and 19th Street. 3. The Development Agreement includes public benefits that are appropriate to support conveying the vested development rights. a. The Development Agreement provides for the payment of a public benefit fee in the sum of thirty thousand, nine hundred and nine dollars ($30,909.00) per residential dwelling unit developed as part of the project, including an annual adjustment to the public benefit fee. b. The Development Agreement provides for park land dedication and improvements in excess of the Quimby Act Requirement. 4. Consistent with Government Code Section 65867.5, the Development Agreement provides vested rights and public benefits for the proposed development, which is consistent with the General Plan. Newport Banning Ranch Final Environmental Impact Report (SCH No. 2009031061) included a consistency analysis that concluded that proposed project is consistent with the goals and policies of the General Plan. 5. City General Plan Land Use Policy LU 6.4.1 provides that "If not acquired for open space within a time period and pursuant to terms agreed to by the City and property owner, the site may be developed as a residential village, containing a mix of housing types, limited supporting retail, visitor accommodations, school, and active community parklands with a majority of the property preserved as open space." By approving this Development Agreement and vesting the applicant's rights to develop the proposed Project pursuant to the terms of the Development Agreement, the City hereby finds and determines that the Property has not been acquired for open space within the time periods established by the City, that approval of the Project and this Development Agreement is consistent with LU 6.3.1 and LU 6.3.2, in that acquisition for open space has not occurred, and that the land uses described in LU 6.4.1 shall be approved. 6. The Newport Banning Ranch Final Environmental Impact Report (SCH No. 2009031061) was prepared for the Project in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. By Resolution No. 2012 -58, the City Council, having final approval authority City Council Ordinance No. 2012 -17 Paoe 4 of 5 authority over the Project, adopted and certified as complete and adequate the Newport Banning Ranch Final Environmental Impact Report (SCH No. 2009031061), and adopted "Findings and Facts in Support of Findings for the Newport Banning Ranch Project Final Environmental Impact Report, Newport Beach, California" ( "CEQA Findings ") and a Statement of Overriding Considerations, which CEQA Findings and Statement of Overriding Considerations are hereby adopted and incorporated herein by reference. SECTION 4. DECISION. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: 1. The Development Agreement attached hereto as Exhibit "A" and incorporated by reference, shall be adopted. 2. The applicability of the Development Agreement to the Project is subject to compliance with Government Code Section 65869(2). 3. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. 4. This action shall become final and effective thirty days after the adoption of this Ordinance. 5. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a special meeting of the City Council of the City of Newport Beach held on the 23`d of July, 2012, and adopted on the 14th day of August, 2012, by the following vote, to wit: AYES, COUNCIL MEMBERS Henn, Rosansky, Daigle, Selich, Gardner, Curry NOES, COUNCIL MEMBERS RECUSED, COUNCIL MEMBE �YOf, City Council Ordinance No. 2012 -17 Pape 5 of 5 ATTEST: iaE. POQT vOlTilani Brown, City Clerk APPROVED AS TO FORM, OFF 6EOF CI��RNEY: , Aaron Harp, City Attorney /G�/ L for the City of Newport Beach RECORDING REQUESTED BY AND W14EN RECORDED RETURN TO: City ofNewpml Beach 3300 Newport Boulevard Newport Beach, CA 92663 -3884 AtUi: City Clerk ('Space Above This Line Is tin• 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. DEVEL,OPMEINT AGREEMENT NO. DA2008 -003 by and between CITY OF NEWPORT BEACH and AERA ENERGY LLC AND CHEROKEE NEWPORT BEACH, LLC (CONCERNING NEWPORT BANNING RANC14 PROPERTY) I 12,06675 6110011 ,102 184 1.12 W17!1612 DEVELOMMENT ACRE, EMENT (Pursuant to Califoruia Government Code Sections 65864- 65869.5) This D1=VFLOPAAENT AGR13EfvlI NT (the "Agreement ") is dated for reference purposes as of the _clay of 2012 (the "Agreement Da( e "), and is being entered into by and between the CITY OF NEWPORT BEACH ( "Cara "), and AERA ENERGY; LAIC and CHf:ROICEE NEWPORT BEACH, LLC (collectively, "Landowner "). City and Landowner arc sontctinncs collectively referred to in this Agreement as the "Parties" and individually as a ;`Party." R EC ITA I -S A. The two entities comprising Landowner are the fee owners of that certain real property consisting of approximately four hundred one (401) gross acres of land area commonly referred to as (lie Newport Banning Ranch (thc "Property "). Approximately 40 acres of the Property is located within the incorporated boundary of the City of Newport Beach and the remainder of the Property (the "County Property ") is located within unincorporated Orange County, in City's sphere of inthrence, as approved by the Local Agency Formation Commission of Orange County. The Property is bounded generally on the north by Talbert Nature Preserve /Regional Park in the City of Costa Mesa and residential development in the City of Newport Beach; on the south by West Coast Highway and residential development in the City of Newport Beach; on the east by residential, light indus(riad, and office development in the cities of Costa Mesa and Newport Beach; and on the west by the United States Army Corps of Engineers wetlands restoration areas and the Santa Ana River. The entire Property is within the Coastal Zone as established by the California Coastal Act. The Property is more particularly described in the legal description attached hereto as Exhibit A and is depicted on the site map attached hereto as Exhibit B. The County Property is depicted on the site map attached hereto as Exhibit B -1. B. In order to encourage investment in, and commitment to, comprehensive planning and Public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of tinne 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, an([ regulations, the California Legislature adopted California Government Code sections 65864- 65569.5 (the "Development ALreennenl Statute "). The Development Agreement Statute authorizes a city to enter into development agreements with persons or entities having a legal or equitable interest in real property located within the city's jurisdiction or within its sphere of influence, provided that a (level opntent agreement may not become operative as to property located in the city s sphere of influence until annexation proceedings annexing the property to the city arc completed within the period of time specified by the agreement. C. On March 13, 2007, the City Council adopled 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. 112d166751 d1p911 101 I %44.13 M17116 11 - d - D. As detailed in Section 3 of this Agreement, Landowner has agreed to provide the following significant public benefits (collectively, the `Public Benefits ") as consideration for This Agreement, which benefits are in excess of the obligations and requirements dial City would be entilled to unilaterally impose cm Landowner as a condition of development consistent with applicable provisions of law: • Comprehensive oil field abandonment and rcmcdiation of the Property at an estimated cost ofapproximately Thinly Million Dollars (530,000,000). • Provision and perpetual protection of natural open space at no cost to the public. • Capture and treatment of offsite surfitce water drainage in accordance with Best Management Practices, resulting in significant water quality beucfiis to the Property and downstream properties, including the Semeniuk Slough. • Dedication of the North Community Park and the Central Community Park, totaling approximately 21.8 gross acres and 18 net acres of land area, and the improvement of those public parks in accordance with Exhibits 3 -6a and 3 -6b, respectively, of the approved Master Development flan for the Project (the `Park Conceptual Design Plans "), which Public BencFits are well in excess of the requirements of California law (e.g., Government Code Section 66477 [the so- called "Quimby Act "]) and implementing City ordivances and regulations. o Improvement of private open space and recreational amenities in the Project that will be open aid available for public use in accordance with (lieapprovcd Master Development Plan, including (i) the approximately 5.0 gross /3.7 net acre South Community Park, (ii) the approximately 24.6 gross /20.4 net acre Bluff Park and Interpretive Parks, (iii) a trail system through open space areas within the Property, and (iV), if the resort inn is consructed and subject to approvals required from other public agencies, including the California Department of Transportation and the California Coastal Commission, a coastal public access to be provided via a pedestrian and bicycle bridge from the Property across West Coast Highway to the beach. c Payment to City of a Public Benefit Fee in the sum of Thirty Thousand Nine Hundred Nine Dollars ($30,909.00) for each residential unit constructed on the Property. o Construction /installation of public street /traffic improvements in excess of the Project's obligation for payment of "fair shard` Irafiic Ices. E. This Agreement is consistent with The City of Newport Beach General Plan, as the same is being amended on or before the Agreement Date. The Gencral Plan was adopted by the City Council of City on July 25, 2006, and the land use plan in the General Plan was approved by City's voters oil November 6, 2006. The General Plan land use designation for the Property is OS(RV), Open Space/Residential Village, which establishes Open Space as the Primary Use and Residential Village as the Alternative Use for the Property. In particular, the General Plan provides that "if not acquired for open space within a time period and pursuant to terms agreed to 112-01,6731 OD-A) 2 3218.14 1207116112 by the City and property owner, the site may be developed as a residential village containing a mix of housing types, limited supporting retail, visitor accommodations, school, and active community parklands, with it majority of the properly preserved as open space. The property owner may pursue entitlement and permits for a residential village during the time allowed for acquisition as open space." Additionally, General Plan Land Use Policy 6.5.2 anticipates that the Property will " [ajcconuuodale a community park of'20 to 30 acres that contains active playfields that may be lighted and is of sufficient acreage to serve adjoining neighborhoods and residents oi' Banning Ranch, it' developed.` The. General Plan identities the maximum intensity of development allowed under the Property under the Alternative Use as one thousand three hundred seventy -five (1,375) residential dwelling units, seventy -five thousand (75,000) square feet of retail commercial uses oriented to serve the needs of local and nearby residents, and seventy -five (75) hotel roosts and associated ancillary uses in a small boutique hotel. The development project (referred to herein as the `Pro'cel ") Landowner will be entitled to develop during the Term of this Agreement is consistent with the Alternative Use for the Property described in the General Plan. By its approval of this Agreement, the City Council of City finds and determines that City has no source of funds to acquire the Properly for open space purposes, that City has no ability to negotiate with Landowner to acquire the Property for its fair market value, that the Primary Use of the Property described in the General Plan is infeasible, and, accordingly, that the Alternative Use of the Property is the appropriate and legally authorized use. Finally, subject to completion of City's planning and public hearing process aid the approval of the Orange County Transportation Authority, the Parties anticipate the Circulation Element of City's General Plan will be amended on or belore the Effective Dale to delete the westerly extension of 15 "' Street to West Coast Highway through the Property and to make certain other revisions to the previously planned master plan circulation system within the Property such that file Project as approved will be consistent with the Circulation Element of the General Plan as so amended. F. In recognition of the significant public benefits that this Agreement provides, the City Council fads and determines by its approval of this Agreement that this Agrceunent: (i) is consistent with the City of Newport Beach General Plan as of the Agreement Dale; (ii) is in the best interests of [lie health, safety, and general welfare of' City, its residents, and the public; (iii) is entered into pursuant lo, 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), the Final Environmental Impact Report for the Ncwport Banning Ranch Project (the "Projec( El R ") that has been certified or is being certified for approval by the City Council of City oil or before the Agreement Date, and all findings, conditions of approval, and mitigation measures (including the mitigation monitoring program) relating thereto; and (v) is consistent and has been approved consistent with provisions of California Government Code Section 65967 and City of Newport Beach Municipal Code Chapter 15.45. G. On ,lone 21, 2012, City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. H. On , 2012, the City Council also held it public bearing on this Agreement and considered the Planning Commission's recommendations and the lestimony and information submitted by City staff, Landowner, and members of the public. On 112'1167y I IIII411 31 11 944.12.117.16112 3 _ , 2012, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. (the `Adopting Ordinance "), linding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NON', THEREFORE, City and Landowner agree as Hallows; 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 bolow: "Action" shall have the meaning ascribed to that term in Section 3.10 of this Agreement. "Adopting Ordinance' shall mean City Council Ordinance No. _ approving and adopting this Agreement. "Agreement" shall mean this Development Agreement No. DA2008 -003, as the same may be amended from time to time. "Agreement Date" shall mean the date first written above, which date is the date 11ue City Council adopted the Adopting Ordinance. "CDP° shall nctm a coastal devclopmeat permit issued by the California Coastal Commission pursuant to California Public RBSUUI'CeS Code Section 30600 el seq. and the implementing regulations promulgated by the Commission. "CEOA" shall mean the California Environmental QUality Act (California Public Resources Code sections 21000-21177) and file implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 el seq.), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city, and any successor or assignee of the rights and obligations of the City of Newport Beach hereunder. "City Couutcil" shall mean the governing body of City. "City's Aliilialed Parties" shall have the meaning ascribcd to that term in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed to that term in Section 10.1 of this Agreement. "C_ount} Property" shall mean that portion ()('tile Property Ihal as of the Agreement Dane is located within unincorporated territory of the County of Orange and within City's sphere of influence. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all Urban consumers (all items) fur the smallesl I L2 06031 du VHI 4 302 1844.11 mUg6 2 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 to Ihal tcfm in Section 8.1 01' this Agreement. "Default" shall have the meaning ascribed to (hat term in Section 8.1 of this Agreement. "Develop" or "Development' shall mean to improve or the improvement of the Property to)' the purpose of uimpletiug the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside (lie Properly; the construction of all of the private improvements and facilities comprising the Project; the preservation of, 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 no( 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 Statutc° shall mean California Government Code Sections 65864- 65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the c01IstMction 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. "Develotmrent Plan" shall mean all of the land use entitlements, approvals, and permits approved by the City Council for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such laud use entitlements, approvals, and permits include, without limitation, the following: (i) General Plan Amendment No. GP2008 -008 (amending the Circulation Element of the City's General Plan as referred to in Recital E of this Agreement); (ii) Zoning Code Amendment No. CA2008 -004 (removing that portion of the Property previously located within the PC -25 zone and changing the zoning for this area to PC -57, approving a pre - annexation zone change for the portion of ale Property located within the unincorporated County territory to PC -57, and approving an amendment to Section 20.65 of the Zoning Code to allow for a maximum height limit of 60 feet (as calculated in accordance with applicable provisions of City's Municipal Code) in the Mixed- Use/Residential laud use area of the Project si(e); (iii) Planned Community Development Plan No. PC2008 -002 (approving the Newport Banning Ranch Planned Community Development Plan that will serve as Ile zoning and development regulations for the Property (as to the portion Of the Property currently within city's sphere of influence, upon the effective dale of the annexation of said portion of the Properly into the City)); (iv) the Newport Banning Ranch Master Development Plan No. MP2008 -001 (which implemcnls the NBR -PC requirements for the Property by establishing design criteria for each land use component proposed for 112,066756001M 3021 W.12 A711612 5 development within the NBR -PC and provides a sufficient level of detail, as determined by City, to guide the review of'subsequent development approvals, including coil s(ructiou -level Permils, as required by the NBR -PC); (v) Tentative Tract Mal) No. NT2008 -003 (subdividing the Property tier development purposes and establishing lots for public dedication or conveyance, easements for trails and public utilities, lots for residential development and conveyance (o merchant builders and/or homebuyers, and lots for financing and conveyance that may be either developed on a single family or residential condominium basis or for hotel and commercial uses); (vi) AlTordable Housing Implementation Plan ( "Al-IIP ") No. AI- 12008 -001 (which, if complied with, satisfies the Project's re(luircmcnls for provision of affordable housing); (vii) Traffic Study No. TS2008 -002 for the Projecf; (viii) the Project EIR; and (ix) all conditions of approval and all mitigation measures approved for the Project oil or before the Agreement Dale, including without limitation all of the provisions in the adopted Mitigation Monitoring and Reporting Program approved for the Project pursuant to the Projecl EIR and applicable provisions of CEQA. " Develooment Regulations" shall mean the following regulations as they are in effect as of the Agreement 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 imposed after the Agreement Date that impairs or restricts Landowner's rights set forth in this Agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Landowner in writing: the General Plan; the Development Plan; and, to the extcul 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 Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions), and Title 20 of the Municipal Code (planning and zoning), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term "Development Regulations." as used herein, does not include. any City ordinance, resolution, code, wle, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments (provided that this exclusion of taxes and assessments from the definition of Development Regulations shall not be interpreted to authorize City to impose Development Exactions on the Property in excess of the amount of such Development Exactions that would be authorized by applicable law ill the absence of this Agreement and nothing in this Agreement is intended to or shall be interpreted to constitute a waiver by Landowner of its right to protest or contest the imposition of taxes or assessments against the Property ([tat are not in effect as of the Agreement Dale); (iii) flue 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 ujton public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of the Collowing dates, as applicable: (i) the elate 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 1120667551.11II90 11021844.12 u07111, 12 6 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 Adopling 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 - appealablejudgmenl, voluntary or involuntary dismissal (and the passagu of any time required to appeal an involuntary dismissal), or binding written settlement agreement; (iv) the date ou which annexation into the City of the portion of the Properly currently located in City's sphere of influence becomes effective, and subject to the Parties' understanding and agreement that if Landowner elects to defer annexation into the City of all or a portion of the Oil Well Operational Area, as permitted by Section 2.5 of this Agreement, the condition in this clause (iv) will be satisfied on a phased basis, with the condition in this clause (iv) being deemed satisfied as to the portion of the Property initially annexed into the City (logethc- with the potion of the Property already located in file City) on the date the lust annexation of the Portion of the County Property, excluding the Oil Well Operational Area (or portion thereot) becomes effective, and the condition in this clause (iv) being deemed satisfied as to the Oil Well Operational Area (or portion thereof) as to which annexation is so def -red on such later date, if at all, that the armcxation of such area into the City becomes effective; (v) the date on which both of the following have occurred: (A) the City Council of City has amended the Circulation Element of City's Gencral Plan to delete the most westerly extension of 15 °i Street to West Coast Highway (at the southwest corner of the Properly) through the Property and to make certain other revisions to the previously planned master ohm circulation system within the Property, such that the Project as approved is consistent with the Circulation Element of the General Plan as so amended (with the understanding that City reserves its full legislative discretion with respect thereto); and (B) the Orange County Transportation Authority has approved such amendment or amendments to the Orange County Master flan of` Arterial Highways (" NIPAH ") necessary to make the Development Plan and Development Regulations consistent [herewith; and (vi) the date on which the California Coastal Commission approves a CDP for the Project consistent with fie Development Plan and Development Regulations. Promptly after the Effective Date occurs, the Parties agree to cooperale in causing an appropriate instrument to be executed and recorded against the Property (or the portion thereof as to which the Effective Date has occurred consistent with clause (iv) in the immediately preceding sentence) memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and iegulaGons which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Properly or any part thereof, Pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including nvithout limitation the following: file Comprehensive Fnvironmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, ct 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, ct sM., as amended ( "RCRA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.. Sections 11001 et scn., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, of seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 cl sea., as amended; the Clean Water Act, 33 U.S.C. Section 1251, el seq., as amended; the 'toxic 112 01,031.nuY11 7 3021944.12 id7116112 Substances Control Ac(, 15 U.S.C. Sections 2601 cl seq., as amended; the Federal Insecticide, Fungicide and Rodcnlicidc Act, 7 U.S.C. Sections 136 et sec„ as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300E et se ., as amended; the Federal Radon and Indoor Air Quality Research Ac(, 42 U.S.C. Sections 7401 ct seq., as amended; the Occupational Safety and Hcallh Act, 29 U.S.C. Sections 651 et seci., as amended; and California Health and Safety Code Section 25100, et sue. "Fire Station No. 2 Fec" shall have the meaning ascribed to that term in Section 3.5 of this Agreement. "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resoluti6n No. 2006 -76, and approved by City's voters in the November 7, 2006: general municipal election, as amended by General Plan Amendment No. — included within the Development Plan, and excluding any amendment to City's General Plan adopted or approved after the Agreement Dale 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 agreed to in writing by Landowner. "Hazardous Substances" shall mean any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or pcholcum- 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 ally substance, waste, of material regulated under or defined as `hazardous" or `toxic" under any Environmental Law. "Landowner" shall mean Aera Fnergy LI..C, a California limited liability company, as to an undivided one -half (1/2) interest in the Property, and Cherokee Newport Beach, LLC, a Delaware limited liability company, as to an individed one -half (1/2) interest in the Property, and any successor or assignee to all or any portion of the right, title, and interest of Aera Energy LLC and Cherokee Newport Bench, LLC, in and to ownership of all or a portion of the Properly. In this regard, Landowner has represented to City that Landowner previously granted to Newport Banning Ranch Limited Liability Company, a California limited liability company in which Aera Energy LLC and Cherokee Newport Beach, LLC. are the sole voting members (';NBR" ). the exclusive right and option to purchase the Property from Landowner pursuant to that certain Restated and Amended PUrehatSe Option Agreement dated as of December 20, 2005, and City acknowledges that if NBR acquires fee title to the Property pursuant to said agreement or otherwise NBR will at that time become the "Landowner" as referred to herein. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other turn 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 holler of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascfibed to that teem in Section 8.1 of this Agreement. ri+;uaon 8 pRl X44.12Jd.l] n071I6q2 "Oil Well Operational Area" shall mean the approximately hventy (20) acre portion of the Property upon which oil chilling operations are permitted in accordance with file City Charter. 'file Oil Well Operational Area is depicted in Exhibit A to the City Charter. "Palk Conceptual Design Plans" shall have the meaning ascribed to that term in Recital D of Illis Agreement. "Part' or "Parkes' shall mean either City or Landowner or both, as determined by the context. :`Permitted Transferee" shall mean any person, partnership; joint venture. corporation, or other business entity to whom Landowner sells, transfers, or assigns all or ally portion of file Proterty pursuant to the terms set forth in Section I I of this Agreement. In the event of a Transfer to a Permitted Transferee. all references in this Agreement to " Landowner" shall be deemed to refer to the Permitted 'transferee with respect to the Property or the portion thereof so Transferred. "Project" shall [licit[] all on -site and oft -site inlprovenlents 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 moclificd or amended from time to lime consistent with this Agreement and applicable haw. "Project EfR" shall mean Final Environmental Impact Report SCH No. 2009031061 prepared and certified for the Project on or before the Agreement Date. "Property" is described in Exhibit A and depicted on Exhibit B. "Public Benefit Fee" shall have the meaning ascribed to that term in Section 3.1 of this Agreement. "Public Financing' shall mean file capital financing raised through the issuance of bonds or other public financing mechanisms. " Subsequent Development Approvals" shall mean all discretionary development and building approvals that Landowner is required to obtain to Develop file Project oil and with respect to the Property after the Agreement Date consistent with the Development Regulations and this Agreement, with the understanding that except as expressly set forth herein City shall not have the right subsequent to the Agreement Date and during the Term of this Agreement to adopt or impose require[llents for any such Subsequent Development Approvals that do not exist as of file Agreement Date. "Terns" shall have the meaning ascribed to that term in Section 2A of this Agreement. "Termination Dale" and "Lot Termination Date' shall have fhe meaning ascribed to that Icrnl in Section 2A of this Agreement. 'Trausier" shall have the meaning ascribed to that tern, in Section I l of this Agreement. 112 u66751.1110vn 9 302 N44.12 WM1612 2. (ieaerid Pr0visi0us- 2.1 Plan ('nnsislency, /.u_ning Inrplcmcnia(iuu. 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 Hindirig, lil`li:cl ol'i\j-�rccmwrl From and ater the Effective Date and for the Term of this Agreement, the Property (or the portion of the Property tin• which the Effective Date has occurred pursuant to this Agreement) shall be subject to this Agreemuni and Development of the Property is authorized and shall be carried out in accordance with the terms of this Agreement. 2.3 Landowner Rcpresea(8(ioos and Warrawics Regarduig Owngrship ref Ihc_ Property-and Rclalcd ivlaticts Potainimg to this AgrecinciiL , Landowner and each person executing this Agrccmcut 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 it legal entity that such entity is duly tbrmed and existing and is authorized to do business in the State of California; (iii) if Landowner or any co- o\vncr comprising Landowner is it natural person (hat such natural person has the legal right and capacity (o execute this Agreement; (iv) that all actions required to be taken by all persons and entities comprising Landowner (o 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 it violation of any obligation, contractual or o(hct -xvise, 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 Petition in bankruptcy, nor is Landowner or any such co -owner insolvent or unable to pay its debts and perliwnu its obligations when due; (vii) that all persons executing this Agreement on behalf of Landowner are authorized to do so and their signatures on this Agreement are sufficient to make this Agreement a legally binding obligation of Landownct; and (viii) that Landowner has no actual knowledge of any pending or threatened claims of any person or entity affecting file validity of any of the representations and warranties set forth in clauses (i)- (vii), inclusive, or affecting Landowner's authority or abifily to cuter into or perform any of its obligations set forth in this Agreement. 2.4 'l'e'nt The term of this Agreement (the "Terms ") shall commence on the Effective Date and shall terminate on the "Termination Dale." Notwithstanding any other provision set forth in this Agreement to the contrary, if (i) the Effective Date does not occur as to the entire Properly, excepting only all or part of the Oil Well Operational Area, within sixty (GO) months after the Agreement Date or (ii) either Party reasonably determines that the Effective Date of this Agreement will not occur as to the entire Property, excepting only all or part of the Oil Well Operational Area, because one or more of the 112010,751-!116111 10 11121X44.121117.16112 coaditions precedent to the occurrence of the Effective Date have been disapproved by the governmental agency having jurisdiction with respect therdo, or (iii) the Adopting Ordinance or any of (he Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a ret'erendum election or (iv) a final non - appealable judgment is entered in it 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 Ware 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, costs, or risks hereunder or thereunder, then such Party, in its sole aad absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, is which event neither Party shall have any farther rights or obligations hereunder except that Landowners indemnity obligations set lbrth in Article 10 shall remain in fall ti rce and effect and shall be enforceable. Such termination shall not affect the validity or enforceability of those Development Regulations otherwise applicable to the Property or portions thereof That would survive indcpenclent of this Agreement. If the Effective Date timely occurs as to the entire Property, excepting only all or it portion of the Oil Well Operational Area, the Effective Date of this Agreement as to the Oil Well Operational Area (or portion thereof) may be deferred until the annexation of such arcs into the City becomes effective, which may occur al any time prior to the Termination Date. The Termination Date (as to the entire Properly, including the Oil Well Operational Area) shall be the earliest of the following dates: (i) the hventy -fifth (25 "i) anniversary of the Agreement Date, as said (late may be extended in accordance with Section 5 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with Section 3.2, Articles 5, 7, amt /or Section 8.3 of this Agreement and /or Sections 65865.1 and /or 65868 of the Development Agreement Statute, as the same may be applicable; (iii) as to any separate legal lot within the Property (but not as to the balance of the Property or the portion thereof that remains subject to this Agreement at such time), upon the "I,ot Termination Date" (defined Below); or (iv) completion of the Project in accordance with the terms of this Agreement, including Landowner's complete satisfaction, performance, and payment, as applicable. of all Development Exactions, the issumice of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entily(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) to a Permitted Transferee, it 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 fur construction on said lot; and (iii) as to any lot that is to be dedicated to City or other applicable governmental agency, the date on which an irrevocable offer of dedication or other conveyance instrument reasonably satisfactory to City has been recorded against said lot, all improvements that arc required to be Developed on and with respect to said lot by Landowner have been completed to the satisfaction of City, a Notice of Completion has been recorded with respect to such improvements, and the time period for the tiling/recordation of any stop notices or licit claims shall have expired and all stop notices or lien claims timely Glcd /recorded shall have been satisfied or bonded against to the reasonable satisfaction of City. I I?a1h6751 .01140 Alt 1X44. 12 12 I I \lohvilhslau(ling any other provision set firth in this Agreement to the Contrary, the provisions set tbrlh in Article; Ill and Section 1110 (as well as any other Landowner obligations set %oh in this Agreement that are expressly written to survive the Tcrminalion Date) shall survive the "I'erntination Dale of this Agreement. 2.5 Annexation ofCouny i,ro,>c�. Subject to the provisions set Moh in file immediately succeeding paragraph, fiont and after the Agreement Dale, Landowner at its sole cost and expense shall diligently put -sue to completion all necessary proceedings before the Orange County Local Agency Formation Commission ("LAFCO ") liur the annexation of the County Property into the City. Landowner and City shall cooperate with LAFCO in connection with the annexation of the County Property, al no cost to City. Nolwiihstanding the foregoing, Landowner shall have the right to defer annexation clone or both of the Oil Well Operaliunal Areas into the City (and, thereby, to phase the annexation of file County Property into the Cily) as long as (0 Landowner determines In its sole and absolute discretion that such areas will or may comhme to be used 1101- a period of fimc for oil drilling and related purposes and (ii) such a phased annexation is consistent with applicable statutes and LNFCO rules and regulations and will not hinder or delay annexation of the balance of the County Property into the City. In addition to the Foregoing, the Parties mutually acknowledge and agree that Landowner shall not he required to consent to completion of the annexation of any portion of the County Properly into City prior to the date (hill the C'alilbrnia Coastal Commission approves it Coastal Development Permit for the Project consistent with the Development Phut and such approval becomes `final." As used herein, the Coastal Commission's approval of the Coastal Development Permit IN the Project shall be deemed to be "final" on the later of the lbHowing dates, as applicable: 0) the day aRer the date on which the slutwe of limitations IAr filing a judicial challenge to the California Coastal C'onunisshrl's approval of the Coastal Development Permit expires without any such judicial challenge being timely filed; or (ii) it' it judicial challenge to the California Coastal Commission's approval of the Coastal Development Permit is timely fled, the last of the liillowing dales: (A) the date upon which such judicial action is dismissed with prejudice; (l3) the date upon which such judicial action is dismissed without prejudice and the statute of limitations fill- re- filing the same or similar action challenging the Calihnila Coastal Commission's approval of the Coastal Development Permit CxpirCS without such action being re- tiled, (C) or the date upon which such judicial action is successfully resolved in a manner which results in the California Coastal Commission's approval of the Coastal Development Permit being upheld; either by it final non - appealable judgment or final binding settlement agreement. It is understood that the Property is "uninhabited" within (lie meaning of the Cortese - Knox- I- lertzberg Local Government Reorganization Act of 2000 (California Government Code Section 56046) and Landowner agrees to promptly provide all necessary approvals, written consents, and waivers of protest or c eok m rights as may be necessary and appropriate to cause said annexation to be complcled at the earliest feasible date; provided, however, that 0) nothing in this paragraph is intended to n otlil[y or limit Landowner's right In defer annexation of one or both of the Oil Well Opeational Areas, as hereinabove set forth, and (ii) Landowner shall not be 1I2d OSIANA, 3141 %CBeU T12 12 required to provide such approvals, consents, and waivers of protest or election rights if, as it condition to the annexation of the County Property (or applicable portions thcccof) to the City, LAFCO subjects the County Property to any conditions or burdens inconsistent with the terms and conditions scl forth in this Agreement. Upon receipt of Landowner's written request, City agrees to support Landowner's annexation application(s) with LAFCO by means of a written letter or City Council resolution, and City hulher agrees to cooperate with Landowner with respect to such application(s), all at ino cost to City. City also agrees to timely pertirrm all of its stahnory dnlieS as the "conducting authority" with respect to annexation of the County Properly or applicable portions thereof. The Parties agree that the Development Regulations for the Property satisfy (he requirements of Government Code Sections 65359 and 56375 with respect to prezoniug of the County Property. 3. Public 13cnc1ils 3.1 Public Benelii FCC Subject to the provisions set forth in the next paragraph below and in Sections 3.2 and 3.3, and as consideration for City's approval and performance of its obligations set forth in this Agreement, Landowner shall pay to City' it fee, referred to herein as the "Public Benefit Fee,` in the sum of Thirty Thousand Nine Hundred Nine Dollars ($30,909.00) per residential dwelling unit Developed as part of the Projccl (including all on -site market rate and affordable units). The Public Benefit Fee shall be paid on a per unit basis as a condition to the issuance of each residential building permit. The amount of the Public Benelil Fee shall be increased (as to residential dwelling units for which the Public Benefit Fee has not previously been paid) based upon percentage increases in the C111 Index. 'rile titst CP1 adjustment to the Public Benefit Fee shall occur on the third anniversary of the Agreement Date of this Agreement (the first " Adjustment Date ") and subsequent CPI adjustments shall occur on each anniversary of the first Adjustment Date lherealier until expiration of the Term of this Agreement (each, an "Adjustment Date "). The amount of the CPI adjustment on the first Adjustment Date shall be the percentage increase in the CPI Index between the second anniversary of the Agreement Date and the third anniversary of the Agreement Date. The amount of the CPI adjuslnnenl on each subsequent Adjustment Date shall be the percentage increase between said Adjustment Date and the immediately preceding Adjustment Date. The amount of the percentage increase in the CPI Index on (he applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the first Adjuslnncnt Date occur on Judy 1, 2016, and (he mosl recently available CPI Index figure on that date is the CPI Index for May 2015 (2 months prior to the first Adjustment Date), the percentage increase in the CPI Index on the fu's( Adjustment Date shall be calculated by comparing the CPI Index for May 2014 with the CPI index for May 2015. In no event, however, shrill application of the CPI Index on any Adjustment Date reduce the amount of the Public Benefit Fee (or unpaid portion thereof) belouv the amount in effect prior to that Adjustment Date. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall act increase the Public Benoit Fee except pursuant to the CPI Index as stated in this Section 3.1. 1 0..1(,675 1.0090 3021844.12 Dee 1612 13 Landowner acknowledges by its approval and execution of Ibis Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation Io pay the Public Benefit Fee is an essential term of this Agreement and is not severable 6-om City's obligations and Landowner's vesting rights to be acquired hereunder. and that Landowner expressly waives any constitutional, statuloy, or common law right it might have in the absence of this Agreement to protest o• challenge the paynnen( of Such fee an any ground whatsocvcf, including without limitation pursuant to (he Fifth and Fourteenth Amendments to the United Stales Constitution, California Constitution Article 1 Section 19, the Mitigation Fee Act (California Government Code Section 66000 el seg.), or otherwise. In addition to any other remedy set forth ill this Agreement for Landowner's default, If Landowner, including any Permitted Transferee, shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the eight to (i) withhold issuance of the occupancy permit and any other building, inspection, or development permit or approval tin• (he unit lbr which the Public Benelit Fee remains unpaid or (ii) withhold issuance of building, occupancy, and other building or development permits for any oilier portion Of the Project that at that time is under common ownership. with the defulting Landowner or Permitted Transferee, as applicable. City shall have the right to spend the Public Benefit Fee on any public purpose that City determines to be in the public interest, as designated by City in its sole and absolute discretion. The Public Benefit Fee is not intended to constitute a Development Exaction, is in addition to the Development Exactions applicable to the Project (i.e., except as otherwise expressly set birth in Section 3.3 of (his Agreement, Developer shall not be entilled to a credit against the Public Benefit Fee for the amount of any Development Exaction paid or performed by Developer and vice versa), and is not subject to resh'ictiouS on the use of variouS f0l -III5 of Development Exactions. 3.2 Renegotiation of Public Bo- iielll Pcc II Development Plan Is Not Approved by C'al_ilinnia C'oaslal Commission. The Parties recognize that subsequent to the Agreement Date and prior to the commencement of Development of the Project oil the Property City and /or Landowner will be required to apply to the California Coastal Commission ( "Commission ") for approval of a CDP for file Project pursuant to applicable provisions of the California Coastal Act and that no assurances can be provided as of the Agreement Date that the Commission will approve that CDP application consistent with the Development Plan approved by City. The Parties further acknowledge they have negotiated the amount and level of the Public Benefit Fee set forth in Section 3.1 of this Agreement based upon the Development Plan approved by City. Accordingly, and in addition to the tact that the Effective Date is conditioned upon the Commission approving the CDP consistent with tine Development Plan approved by City, in the event the Commission's approval of the Project is issued subject to conditions or requirements that (i) the number of residential dwetliag units in the Project be reduced to a number less than 1,375, (ii) the net developable acreage of the Project on the Property be reduced below the annouut of net developable acreage approved by City as of file Agreement Date, or (iii) imposing any other conditions or requirements on Landowner's development rights Thal Landowner, in its sole and absolute discretion, determines materially increases the cost of Development above the costs that would be incurred by Landowner to Develop the ProjccI pursuant to the Development Plan approved by City as of the Agreement Date, then, in such event, the Parties agree to negotiate in good faith regarding to reduction in the amount of the Public Benefits and /o' the 112IM6751 -01190 1 4 3021844.12 0117111.12 Public Benefit Pee. Notwithstanding file foregoing, nothing in this Agreement shall be deemed to commit City to approve a reduction in the amount of the Public Benefits or the Public Benefit Fee, and City reserves the right to approve or disapprove such a reduction in its sole and absolute discretion, and if the Parties are unable to agree upon such a reduction Landowner's sole and exclusive remedy shall be to terminate this Agreement by delivering written notice of termination to City. In such event, the provisions set forth in Article 10 and Section 13.10 (as well as any other Landowner obligations set forth in this Agrceuncnt that are expressly written to survive the Termination Date) shall survive such termination. in addition, Landowner recognizes and agrees that since all of the City actions relating to Ilse items comprising the Development Plan arc being approved conditionally and contingent upon Landowner's performance of its obligations set forth in this Agreement, Landowner's termination of this Agreement automatically will runt in the termination of the Development Plan and Landowner's right to Develop the Project pursuant to the Development Plan. 3.3 Park Land I)cdie;iliun and Inrprnvcrricnls in txccs of I_nluwncr's hiinbw A Requirement; City 01ition to Develop Norlb_md_Cenlral _C'ununu)uly_I'ai'ks; Possible Intrcasc or Decrease in Public Benefil Fec. Based upon the number of residential dwelling units approved in the Development Plan (1,375); City has calculated that Landowner's Quimby Act obligation for the Project would be to dedicate to City 15.1 net useable acres of park laud within the Property in it rough graded condition, with Rill improvement of adjacent public street access and all utility lines stubbed in to a location approved by City ( herein. "Rough Grade Condition"), to pay in -lieu park fees to City based upon said acreage figure, or a combination of the two. Notwithstanding such lintilations on L andowner's Quimby Act obligations, and as further consideration for City's approval and performance of its obligations set Forth in this Agreement, Landowner agrees to dedicate to City and City agrees to accept two public parks within the Property comprising a total of approximately 18 net Listable acres (21.8 gross acres) of land area (the North Community Park and the Central Community Park) in a Rough Grade Condition. In addition to the foregoing, and notwithstanding the aforedescribed lintilations on Landowner's Quinnby Act obligations, and as Further consideration for City's approval and performance of its obligations set forth in this Agreement, Landowner agrees to improve the North and Central Community Parks in accordance with the Park Conceptual Design Plans (as the same may be supplemented ar revised fronn time to tune by City) and the final plans and specifications for the North and Central Community Park improvements as approved by City in accordance with City's Development Regulations. In this regard, prior to issuance of the fif ieth (50"') certificate of occupancy for a residential dwelling unit (excluding model homes) within the Project Landowner shall prepare, submit to City, and obtain City approval of (i) final plans and specifications for the North and Central Community Park improvements and (ii) a detailed line - itent cost estimate for said park improvements based on the approved final plans and specifications together with adequate supporting information to justify the amount and reasonableness of each line item (collectively, the "Park Improvement Cost Estimate "). The only costs included in Landowner's Park Improvement Cost Estimate shall be those costs Landowner reasonably determines it will incur after (bur not before) the Agreement Date to design, engineer, construct, install, supervise, and inspect the North and Central Conuuunity Park improvements and maintain such improvements prior to (lie time City accepts 1'he North and Central Community Parks for maintenance purposes, including any permit and inspection fees to 112 Lin (,75600911 )m 1 pit, 12 mir• u.•12 15 be paid to City with respect thereto and the cost of obtaining and maintaining in effect security instruments for (lie work (collectively, the "Eligible Estimated Park Improvement Costs "). The Eligible Estimated Park Improvcnncnl Costs shall not include any costs that Landowner anticipates it will incur to deliver the North or Central Community Park in a Rough Grade Condition. Construction management fees included in Eligible Estimated Park Improvement Costs shall not exceed live percent (5%) of the estimated "hard cost" ofconstruction /installation and no other costs for developer profit, overhead, or similar charges, by whatever aannc called, shall be included in Eligible Park Improvement Costs. The contingency amount included in Eligible Estimated Park Improvement Costs shall act exceed ten percent (10 %) of the sum of the other costs. In the event Landowner retains third party contractors, planners, engineers, landscape architects, or other contractors and consultants to perform work with respect to construction of the North and Central Community Parks, on the one hand, and other elements of the Projcct, an the other hand, Landowner shall lairly allocate costs between Eligible Park Improvement Costs and other (non - eligible) costs. City shall have the right to review and approve the final plans and specifications for the North Park and Central Community Park improvements, the Park improvement Cost Estimate, and the Eligible Estimated Park Improvement Costs, including without allocation the reasonableness of any allocation of costs between Eligible Estimated Park Improvement Costs and other non- eligible costs. City shall not unreasonably delay, deny, or condition approval of any of said nnaltcrs. Prior to the later of (i) City's issuance of to building permit for Development of the o is hundredth (Wdl') residential dwelling unit (excluding model homes) within the Project and (ii) City approval of the final specifications for the North and Central Community Parks, the Park Improvement Cost Estinnatc, and the Eligible Estimated Park Improvement Costs, City shall have the right, but act the obligation, to deliver a written notice to Landowner informing Landowner that City has deeded to construct /install the North and Central Community Park improvements itself (the "City Part: Notice "). City's failure to timely deliver the City Park Notice by said deadline shall conclusively be deemed to constitute an election by City to not construct /install the North Park and Central Park improvements and to require Landowner to construct /install the same. If City timely delivers the City Park Notice, the following obligations shall apply: (i) within thirty (30) days after City's delivery of the City Park Notice Landowner shall deliver or cause to be delivered to City (A) ownership and true and correct copies of all plans, drawings, specifications, surveys, and other records in the possession of Landowner and any contractor or consultant retained directly or iadireelly by Landowner with respect to the North and Central Community Park innprovemenls (collectively, the "Park Plans "), free and clear of ally claim of any third party that would restrict Citys tree and unfettered right to use the seine, but without any representation m warranty by Landowner as to the completeness or adequacy of the same or suitability Icr City's intended use. and (B) a written assignment of all of Landowner's right, title, and interest in and to the Park Plans; (ii) upon Landowner's satisfaction of all of the requirements set lorth in clause (i) Landowner's obligation with respect to the North and Central Community Parks shall be limited to delivering such parks to City in it Rough Grade Condition, which Landowner shall do at least one (1) year prior to the estimated date upon which Landowner (including Permitted Transferees) will be requesting the two hundredth (200'x') certificate of occupancy for a residential dwelling unit within the Prqject, and thereafter 112 061115 1JI040 )112 i,.1.1.12 :,ntr 1 6-i 2 16 Landowner shall be released from any further obligation under this Agreement and any of the Development Regulations to improve the North and Central Community Park Improvements; (iii) Ile amount of the Public Benefit Fee payable by Landowner to City shall be increased by Ile sum of Eight Million Dollars ($8;000,000) total (Five Thousand Eight Hundred Eighteen Dollars and Eighteen Cents [$5,818.18] per residential dwelling unit [1,375 DUs X $5,818.18 = 38,000,000], with such 58,0011,000 sum increased by the percentage increases in the CPI Index commencing with the first Adjustment Date referred to in Section 3.1 (and with the amount of the increase(s) calculated in the same manner as Provided in Section 3.1) and on each Adjustment Date thereafter through the (late on which Landowner has filly performed its obligations set forth in clauses (i) and (ii) (bit( not earlier than the dale on which City has issued the two hundredth (200'1') certificate of occupancy for a residential dwelling unit, excluding model homes, within the Project), and with said increased Public Benefits Fee also payable on a per building permit basis as provided in Section 3.1; and (iv) sub,jcet to Section 9 of this Agreement, City shall exercise commercially reasonable diligence to complete the Development of the North and Central Community Park improvements within one (I ) year of the date upon which Landowner frilly peribrins its obligations set forth in clauses (i) and (ii). Notwithstanding the City's right to construct/inslall the North and Central Community Park improvements, if City deliver the City Park Notice but it thereafter fails to timely commence either or both of said improvements, Landowner shall have the right, but 1101 the obligation, to elect to construct /install said improvements itself. If Landowner desires to exercise this "self -help" remedy, it shall be required to deliver a written "Notice of Default" to City, which Notice of Default shall clearly state that Landowner is electing to take over and perform the work of constructing /installing the park improvements that are the subject of the Notice ol'Defaull if City does not cure the " Default" within the "Cure Period" applicable thereto (see Section 8.1 below For definitions of those terms). if City fails to cure its Default during the applicable Cure Period, then Landowner shall be authorized to proceed to construct /install the park improvements that were the subject of the Notice of Default as though City had never delivered the City Park Notice. If City does not timely deliver the City Park Notice, the following obligations shall apply; (i) if the Cily- approved Estimated Eligible Park improvement Costs are equal to or less than Eight Million Dollars ($8,1100,000), with said sum adjusted in accordance with the percentage increases in the CPI Index commencing with the first Adjustment Date referred to in Section 3.1 (and with the amount of the incrcase(s) calculated in the same manner as provided in Section 3.1) and on each Adjustment Dale thereafter through the (late on which City has issued the two hundredth (200t') certificate of occupancy for a residential dwelling unit, excluding model homes; within the Project (herein, Ilse "Landowner's Estimated Cost Cap "), then Landowner shall plan, design, engineer, construct, install, supervise, and inspect the North and Central Community Park improvements and maintain such improvements prior to the time City accepts the North and Central COMMUltity Parks for maintenance purposes, including payment Of any permit and inspection fees to be paid to City with respect thereto and the cost of obtaining and maintaining in effect security instruments for the work, all at Landowner's sole cost and expense, and regardless of whether the actual costs incurred by Landowner for said purposes actually exceed the Landowner's Cost Cap; (ii) if' tile City- approved Eligible Park Improvement Costs exceed the Landowner's (Estimated Cost Cap, then Landowner's Public Benefit Fee shall be decreased by the difference between the City - approved Eligible Park Improvement Costs and the Landowner's Estimated Cost Cap such that, for example (and without taking CPI adjustments 1 u.nbn}S1AO40 17 111218)4.1247 /1x12 into account). if the La lido wncr's Estimated Cost Cap is $9,000,000 and the Eligible Park Improvement Costs equal $10,000,000, Landowner would be entitled to a $1,000,000 reduction in its Public Benefit Fee or a reduction in said fee per residential unit that is equal to $1,0001000 divided by the number of residential units that are ultimately vested in Landowner for development on the Property ($ 727.27 per residential unit assuming Landowner is vested with the right to develop 1,375 on -si(e residential units); (iii) Landowner shall commence construction of the North and Central Community Park improvements no later than City's issuance of the two hundredth (200 "i) certificate of occupvicy ti>r a residential dwelling unit (excluding model homes) within the Project and Landowner shall complete construction of the North and Central Community Park improvements in strict conformance with the City- approved final park plans and specifications and applicable Development Regulations and otherwise to the reasonable satisfaction of City no later than City's issuance of the three hundredth (300 "i) certificate of occupancy for a residential dwelling unit (excluding model homes) within the Project; and (iv) promptly after Landowner submits a written request to City tier acceptance of the completed North and Central Community Park improvements (with the understanding that such a request may be submittal separately for each park), together with a certification by Landowner's design professional that the improvements satisfy the requirements for acceptance set forth herein, City shall consider such request and, if construction of the applicable Park improvements has been satisfactorily completed, City shall accept the completed improvements in accordance with applicable Development Regulations, provided that City's acceptance of the completed improvements shall be subject to whatever rights City would normally have under its applicable Development Regulations in the absence of this Agreement with respect to reservation of claims for defective work and resort to any improvement security held by City relating thereto. From lime to time during the progress of Landowner's (and Pcrutitted Transferees') Development of the Project and upon Landowner's written request, City shall promptly advise Landowner of the status of file number of certificates of occupancy for residential dwelling units that City has issued, in order to enable Landowner to plan (he timing of its performance obligations set forth in this Section 33 with respect to the North and Central Community Park improvements. Said City obligation shall terminate when City has advised Landowner that City has issued the 300"' certificate of occupancy for it residential dwelling unit within the Project. The aforedescribed obligations of Landowner with respect to file North and Central Community Parks shall be in addition to its obligations to dedicate, develop, and /or restore other public and private trails, park, habitat areas, and park/open space improvements oil other portions of (lie Property. City acknowledges (hat Landowner's performance of its obligations set forth in the Development Regulations and this Agreement will satisfy all of I.,andowner's Quimby Act obligations for the dedication and improvement of park and recreational land and payment of in- lieu fees relating thereto. 3.4 Transportation Improvements; Pair Share Traffic fee CrcdiC Acquisition of 15i1, Street Right -ot =Wi . If the Calitbrilia Coastal Commission approves the Project so as to authorize conslruction /installation of the portion of BIuff Road between 17"' Street and 19t' Street the Parties agree (subject to any contrary conditions that may be imposed by the California Coastal 11211166731 -0090 18 3021N,14.12 ,07116 12 Commission) that said road improvements shall be constructed /installed in cogiunction with the final phase of Landowner's Project. Landowner shall offer to dedicate the right -of -way needed for said road improvements on the first 1111,11 Iracl nuhp(s) that inchhdc(s) the portion of the Property within which said portion of Bluff Road is located and Landowner shall deliver said right -of -way to City in a rough graded condition on or before the dale on which the 800 "' certificate of occupancy is issued for a residential unit on the Property. If the California Coastal Commission approves the construction /installation of the portion of Bluff Road between 17 °i Street and 19j1i Street, said road improvements (beyond the rough grading stage of Development) may be constructed /installed either by Landowner or by City, as City may elect. City shall make such election by delivering written notice to Landowner sufficiently in advance of the date that such (AnlStl- L[Ciilln /installation will need io c(nmmence in order to enable each Party to timely plan to fulfill its responsibilities with respect thereto and, in this regard, the Partics agree to consult and cooperate with one another during the course of Landowner's Development of the Project consistent with that objective. If Cily elects to constnlet /install the portion of Bluff Road between 17a' Sheet and 19 °i Street, Landowner shall pay to City a fair share traffic lee for said improvement based on (i) the amount, reasonably estimated by City, to be the estimated cost of said Work (including the cost to engineer, design, construct, supervise, and inspect kill improvements within the dedicated right -of -way, bill excluding the cost /value of the right -of -way, the rough grading cost, and the cost of complying With any c11vironmenlal mitigation requirements attributable to the grading required for said roadway and construction /installation of the roadway itself and whether such environmental mitigation requirements are imposed by City or some other federal, state, or local agency with jurisdiction, which costs shall all be Landowner's sole responsibility) and (ii) Landowner's fair share percentage for said improvement, which shall be calculated by City in accordance with the standard methodology used by City in allocating fair share percentages for other road improvements used to determine City's fair share traffic fee, and otherwise City shall be responsible to construct said road improvements at City's sole cost and expense. If City elects to have Landowner construct /install said road improvements, City shall pay to Landowner the entire estimated cost of said improvements less the amount that would have been Landowner's fair share fee for said improvements (calculated in accordance with the preceding sentence). The Party obligated to Pay the other Party (depending upon which Party is responsible to perform the work) shall make such payment to the other Party in cash within ten (10) clays after the Patty performing the work submits to the Party obligated to make payment (i) an invoice requesting payment and (ii) satisfactory evidence that the Party responsible to perform the work has entered inlo a construction contract to complete the work and said Party's contractor has commenced work pursuant to said construction contract. II is understood and agreed that Landowner's fair share traffic fee payment to City (if City elects to construct /install the portion of Bluff Road between 17i' Street and 19i1' Street) or City's cash payment to Landowner for said improvements (if City elects to have Landowner construct /install file same) shall be based on the City's estimated cost of said roadway and not the actual coustnuctiou>/installation cost. If City elects to construct /install the potion of Bluff Road between 17a' Street and 1911' Street, City shall accept Landowner's offer of dedication of the right -of-way for said roadway in accordance with applicable Development Regulations promptly after Landowner submits a written request therefor, together with a certification by Landowner's civil engineer (hit[ the lines all(] grades of file graded road extension conform to the plans therefor and City verifies the work has ill fact been satisfactorily completed. If City elects to have Landowner construct /install said 1 181166151.00,1 19 ;102V44.12 i,07W, 12 road improvements, City shall accept Landowner's offer of dedication of the right -of -way and improvements for said roadway in accordance with applicable Development Regulations promptly after Landowner submits it written request therefor, together with a certification by Landowner's civil engineer that the lines and grades of the graded road extension and the improvements conform to the plans therefor and City verifies the work has in fact been smisfaclorily completed. In either case. City's acceptance shall be subject to whatever rights City would normally have under its applicable Development Regulations in the absence of this- Agreement with respect to reservation of claims for defective work and resort to any improvement security held by City relating thereto. Except as set forth in the preceding paragraph, the Parties agree that Landowner shall not be obligated to pay a "fair share traffic fee" pursuant to City's Fair Share Traffic Contribution Ordinance (Chapter 15.35 of City's \Municipal Code) based upon City's determination that Landowner will be constructing street /transportation improvements with public benefits in excess of Landowner's fair share traffic fee obligation even i1, for whatever reason, the California Coastal Commission requires the Development Plan to be modified to delete construction of the portion of Bluff Road between 17 °i Street and 19 °' Street. Landowner shall not be entitled to it refund or reimbursement for the cost of constructing /installing the street /transportation improvements required as part of the Project in excess of what its fair share traffic fee would be in the absence of this Agreement, nor shall Landowner be entitled to any other fee credit based on its estimated or actual costs incurred to construcOnstall streethransportation improvements for the Project, whether on -site or off -site. In addition to the foregoing, Landowner shall be responsible for paying the entire cost of obtaining the offsite right -of -way needed to widen 15i1' Street in accordance with the Projcel EIR and applicable Development Regulations, including, if applicable. City's cost of acquisition. 11' Landowner fails to acquire the needed right -of -way for the 15t1i Street widening prior to recordation of the first final tract map within the Property that authorizes development of residential units, City and Landowner shall enter into an agreement pursuant to Government Code Sections 66462 and 66462.5 which provides Ibr City's acquisition of the right -of -way and Landowner's payment of the entire cost therefor, including without limitation all of City's legal; appraisal, engineering, and other costs, all amounts of compensation paid to the persons and entities having a compensable interest in the right -of -way. City's litigation expenses and COLIN costs, and City payroll costs fill- the time spent working oil said acquisition by in -house City staff. 3.5 Landowner's Contribution Toward Cost of Redevelooncnt of Fire Station No. 2. In order to implement Mitigation Measure 4.14 -2 in the Project EIR relating to redcvelopment of City's Fire Station No. 2 and as further consideration for City's approval and performance of its obligations set forth in this Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the "Fire Station No. 2 Fee") in the sum of Five Hundred Ten Dollars ($510) per residential dwelling unit, with the per /unit fee to be paid upon the issuance of a building permit for each residential unit developed within the Project. The amount of said Fire Station No. 2 Fee shall be increased (as to residential dwelling units for which the Fire Station No. 2 Fee has not previously been paid) on each Adjustment Date in accordance with changes in the CPI Index, calculated al the same limes and in the same manner as set forth in Section 3.1 of 112 MIP'S LUnvu 20 3021814.12 al)7116111 [his Agrecnnent to[. CPI adjustment to the Public BencOt Fee. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Perm of this Agreement City AM not increase the Fire Station No. 2 Fcc except pursuant to the CPI Index as stated in this Scclion 3.5. Landowner acknowledges by its approval and cxceatmn orris Agmemou thnl If is voluntarily agreeing to pay the Pine Sialion No. 2 Fee, that its obligation to pay the Fire Slatiou W 2 Fee is an essential term of His giveinent and is riot severable from City's obligations and Landowner`s vesting rights to be acquired hereunder, and Uml Landowner exln'essly waives any constitutional, statutory, or common laiv right it might have in the absence of this Agreement to proles( or challenge the payncnl ol- such Ice on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United Stales Constitution, C'alilbrnia Constitution Article I Section 19, the 1kliligation Fee Act (California Government Code Section 66(WO et x,h or otherwise. In addition to any other remedy set forth in this Agreement for Landowner's dcl'aull, if I.. ;udowner. including any Permitted Translcrcc, shall fail to timely pay any portion of the Fire Station No. 2 Fee when due City shall hnve the right to (i) withhold issuance of the occupancy permit and any other building, inspection, or developnncnl permit or approval for the unit as to which the Fire Slalion No. 2 Fee remains unpaid or (ii) withhold issuance of building, occupancy, and other building or development pernnils tin• any other portion of file Project that at that time is antler common ownership. d. Development of I'IV3ccl. 41.1 Applicable _Regulations; I. ;nulmoncr s Vested Rights and Cily's KcNeivolion of Oiscrchon_4Vith Respect to Suhscquut( Development Approvals. Cther than as expressly set loath in Ihis Agreement, during the Term of this Agreement (i) Landowner shall have the vested right to Develop the Project on and with respect to the Property in accordance with Me terms of the Development Regulations and this Agreement and (ii) City shall not prohibit, prevent, or delay development of the Property on grounds inconsistent with the Development Regulations or [his Agreement. \otwiths(andiug (he foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (0 review and approval requirements contained in file Dcvclopmcnl. Regulations; (ii) exercise of any discretionary oudnority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of :my Subsequent Developnnenl Approvals Ihat are required lot- Development of the Project as of the Enbetive Date, (iv) approval, conditional approval, or donial of any modifications or amcndnncnls to the Development Regulations as may be required in order to conlonu to or cmnply with the action taken by the California Coastal Commission with respect to the Coastal Development Permit approved by the Commission wi(h respect to the Pro.jec(; or (v) any environmental approvals that may be required under CLQA or any other Icdcral or slate law or regulation in conjunction with any Subsequent Development Approvals that may he requited for the Project, mad in this regard, as to fttore actions rcferrcd to in Onuses (i) -(v) of this sentence, City resorvcs its Rdl discretion w the same extent Cily would have such discretion in the absence of this Agreement. It addition, it is understood and agreed that nothing in His Agreement is intended to vest Landowner's rights with respect (o any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or (lie Project; or any applicable federal or slate lines, rcgolations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this AgNumenl, and regardless of whc[her such overriding 10416051.11111111 MUISKUM I6'Id 2 ur supersuling laths; regulations, rules, or official policies are adopted or applial to the Properly or the Project prior or subsequent to the Agreement Date. Landowner has expended and will continue to expend subslambi amounts or time and money planning and preparing for Development of the Project. Landowner rcproscnls and City acknowledges that Landowner would not make these cspendilures without this Agreement, and that Landowner is and will he staking these expenditures in rensos061c reliance upon its vested rights to Develop the Project as set forth in this Agreement. Landowner• may apply to City IS permits or approvals necessary to modify or amend the Development specified in the Develcgnncni Regulations, provided that the request does not propose an increase in the maximum density, intensity, height, or size of proposed suructures, or it change in use that generates more peak Nora• lranic or more daily 1ranic than the Project as approver) as ofthe Agreemcnl Date amt, in addition, Landowner may apply to City for approval of minor amendments to existing tentative Tract maps, tentative parcel Wraps, or associated conditions oT' approval, consistent will, City or Nowpor( Beach \Municipal Code section 1%12.090. This Agreement does not consfiluic a promise or coumnihncnt by City to approve any such permit or approval, or to approve the same wilh or without any particular recluircntenls or conditions, and City's discretion with respect to such mallets shall be the same ash would be in the absence of this Agreement. Notwithstanding any other provision set forth in this Agreemcnl, nothing in this Agreemcnl is intended or shall be interpreted to place an afhrntalive obligation on Landowner to proceed with or Develop the Project; provided, that if Landowner does elect to do so it shall do so in strict collibrmity with the provisions set forth in this Agrccnterrt and the Development Plan (as the same may be amended 15.0111 tittle to time consistent herewith). 4.2 No Conflicting Fnactntaus. Subject to City *s reserved right to reconsider the Development Regulations fin• the Project if and to the extent the Calili)rnia Coastal Commission dins not approve a CDT' cotsistent (hc:rewi111 and except to file extent City otherwise reserves its discretion as expressly set forth in this Agreement, (tiring Ihe'Perm of this Agreement Oly shall not apply to the Project or the Properly any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes ef9cclive after the Agreement Date to the extent it conflicts will, this Agreement. This Section 42 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, ur other measure applicable to the Projcct pursuant to Califbrnia Government Code Section 65866 consistent with the procedures specified in Section 43 of this Agreement. In Pardee Cuust uclion Cu. v. Ci(v of C'anmrillo (1984) . 37 CaDd 465, the California Supreme Court held that a construction company was not exempt front a city's growth conhnl ordinance evert though Ilse city and construction company had enteral into it consent judgment (tantamount to a conh'acl under California law) establishing the company's ves(cd rights to develop its property consistent with the zoning. The Cahlirrnia Supreme C'our( reached this result because the consent judgment tailed to address the tinting of development. The Parties intent) to avoid Ills resull of the Nrurlee case by acknowledging and providing in this Agreement (hill Landowner shall have the vested right to Develop the Project on and with respect W the Property at the rate, Timing, and sequencing that Landowner decnm appropriate within [lie exercise of Landowner's sole subjective business judgment and nolwi(hslanding adoption by iclwao5bmmI 22 Msera.r] OMa12 City's electorate of an initiative or referendum to the contrary after the Agreement Dale; provided, however, that (i) any such Development shall occur in accordance with this Agreement and the Development Regulations and (ii) nothing in this Agreement is intended as a representation or warranty by City to Landowner that a referendum will not be filed or approved that overturns one or more of the elements of the approved Development Plan or this Agreement prior to the time the same become final and effective. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any poi of the Project and whether enacted by initiative, referendum (excepting a referendum that overturns one or more of the elements of the approved Development Plan prior to the time the same become final and effective), or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Landowner's vested rights in this Agreement o• otherwise conflicts with the express provisions of this Agreement. 4.3 Rescrvodions 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 govern the Development ofthc Project on and with respect to the Properly. 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 procednire shall apply to the Properly, provided that such proce(lu -al regulations are adopted and applied City -wide or to all other properties similarly situated in City. 4.3.2 Processing and Permit Pees. City shall have the right to charge and Landowner shall be required to pay all applicable processing and permit fees that are charged on a non - discriminatory basis to similarly situated development projects in City as needed to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Landowner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the tine fees are due. 4.33 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not contliet 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 Tenn of this Agreement, Landowner shall be required to satisfy and pay all Development Exactions that are in effect as of the Agreement Date at the time performance or paynnenl is due in the amounts that would apply to Landowner and the Project at that time in the absence of this Agreement; provided, however, that to the extent the scope and Went of a particular Development Exaction or charge has been established and fixed by City in Sections 3.3 -3.5 of this Agreement (wilh respect to Quinnby Act dedication /in -lieu fee requirements, fair share traffic fees, and the Fire Station No. 2 Fee) or the conditions of approval for any of the Development Regulations 117,04,675I.0040 1011 MAI A7 1612 23 approved on or before the: Agreement Dale City shall not alter, increase. or modify said Development Exaction it) a manner than is inconsistent with such Development Regulations without Landowners prior written consent or as may lie otherwise required pursuant to overruling federal or stale hovs or regulations (Sec(ion 4.3.5 hercinbclow). In addition, nothing in Ibis Agreement is intended or Ahall he deemed to vest Landowner against the obligation to pay any of the Hollowing (which are not included within the definition oi' "Development Exactions ") in the, full :amount that would apply in the absence of this Agreement: (i) City's normal lees liar processing, environmental assessment and review, tentative Iraq anti 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) lees and charges levied by any other public agency, utility, dKirieL or joint powers authority, regardless of whether Cily collects those fees and charges; or (iii) community facilities district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for pubHe improvements, u•ansient occupancy inxes, sales taxes, properly lases, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Section 3.12 ol'C•ity's \4unicipal Code. 4.3.5 Overriding federal and Stale Lnws anti Regulations. Federal and stale laws and regulations that override Landowners vested rights set li'urlh in this Agreement, including without limitalinn the provisions of the California Coastal Act, shall apply to the Properly, together with any non - discriminatory City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding Iederal or state laws and regulations, rimvided that (i) Landowner does not waive its right, to challenge or contest the validity of any such ptuportedly overriding lateral, slate, or City lacy or regulation; and (ii) upon the discovery of any such overriding Iederal, stale, or City law or regulation that is not consistent with the provisions of this Agreement or olhcnOse prevents or precludes compliance with any prnwiskm (d ibis Agreement, City or Landowner shall provide to the other Party a written notice identifying file federal, state, or City law or regulation, together %viii a cops' of the law or regulation and a brief written statement of the conllict(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 it reasonable attempt to determine whether a modification or suspension of iris Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. lu such negotiations, City and Landowner agree to pmsuve the terms of this Agreement anti the rights of Landowner as derived from this Agrecmenl 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 Lantlowncr. City also agrees to process in a prompt manner Landowners proposed changes to the Project and any of the Development Regulations as may he necessary to comply with such overriding ictleal, slate, or City law or regulation; provided, however, that the approval of such changes by City shall he subject to the tlise'elion or City, consistent with this Agreement. 4.3.6 Public Health and Safett.. Any City ordinance, resolution, rule, regulation, program, or official policy that City reasonably determines is necessary to protect persons on the Property or in the immediate vicinity Rom conditions dangerous to their health or sately shall apply to the Property, even though the appHcmion of the ordinance, resolution, rule regulation, IIIHMMUNIP yir19.61.1!auM 12 24 program, or official policy would result in the impairment of Landowner's vested rights under this Agreement. 4.3.7 Unifiwru Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from lime 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. 43.5 Public Works Improvements. To the extent Landowner constructs or installs any public improvements, works, or facilities, the City standards in effect for such Public improvements. works, or facilities at the little of City's issuance of a permit, license, or other authorization tot- construction or installation ofsante shall apply. 4.3.9 Water and Wastewater Utility Service. City covenants to provide water and wastewater 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 ft-om time to time, as and when service conneetions are provided and service commences). While City represents that as of the Agreement Date City has adequate capacity to provide water and wastewater services to the Project if the Project were fully built out as of file Agreement Date, City makes no representation or warranty to Landowner that the infrastructure needed to provide water and wastewater services will be sufficient al the time Landowner Develops the Project, City is not hereby committing fu improve or upgrade existing water or wastewater utility infrastructure tot- the benefit of Landowner or (lie Project, City does not warrant or represent (flat adequate water supplies or wastewater treatment capacity will be available to serve Landowner or the Project at the time Development' occurs. and, with the exception of City's commitment that after the Agreement Dade it will nut adopt or enforce any discriminatory City laws or regulations (as defined above) against the Project relating to the provision of water or wastewater utility services. if water or wastewater utility services are provided to the Project by an entity other than City, City shall not impose any conditions or restrictions on the provision of such services to any parcel or lot within the Property in excess of the restrictions imposed by the service provider; provided, that City is not represcnfing, warranting, or guaranteeing that any other entity has the capacity, willingness, or ability to provide such services. 4.4 Tcnlalive Subdivision hfaps Any tentative subdivision map for the Project shall comply with the provisions of California Government Code Sections 66473.7. City agrees that Landowner may file and process new and existing vesting tentative maps for the Property consistent with California Government Code Sections 66498.1- 66495.9 and City of Newport Beach Municipal Code Chapter 19.20. Pursuant to file applicable provision of the California Subdivision Map Act (California Government Code Section 66452.6(x)), the life of any tentative subdivision map approved for the Property, whether designated it "vesting tentative map" or olhe•wise. together with any Subsequent Development Approval, shall be extended for the Term of This Agreement. 112 (161,751 -110121) 31-2 84-1.i2 47! 16 1 25 4.5 Resp onA)ifny liar llioccssinLt Application Ina Coamal Development Pet mil-, U0%1N Within ninety (90) days filler the Agreement Date, Landowner shrill prepare and submit to (lie Caliiin-nia Coastal Connnission a complete application tier approval of a Coastal Development Permit for the Projccl consistent with (he Development Regulations and this Agreement and lherealler Landowner shall exercise commercially reasonable diligence in an cflbai to obtain an acceptable final decision by the CalilAwnia Coastal Commission will) respect to said application as soon as is reasonably practicable. Landowner shall be responsible fur fill costs and expenses incurred with respccl to said agiplication. City agrees to reasonably cooperate with and support Landowner in the processing of said application, at no cull to City; provided, that City's cooperation shall not require City to agree to perform ally obligations in excess of or inconsistent with the Development Regulations or this Agreement, nor shall City be required to waive Landowner's full compliance will any of L.mdowner's obligations scl lbrlh in the Development Regulations or this Agreeucnl. Landowner shall reinhburse City tiff all of City's reasonable costs and expenses incurred with respect to Landowner's CDP application (including without limitation City's payroll costs and costs for outside counsel and consultants (if required), prorated with respect hi City staff time nix the periods of time that City staff devote to said application) within thirty (30) days aher receipt of invoices and supporting information. Landowner shall not be liable to City for any City staff lime spent with respect to the CDP application following the date of City's receipt of Landowner's written notice to City that I..andowncr has abandoned the application tin• the CDP. Notwithstanding any other provision set Arth in this Agreement Ica the contrary, il'the Calilb ilia Coastal Commission dues not approve a CDP for the Projccl as submitted :old City is called upon to consider a revised t'rojccl or revised conditions of approval or mitigation measures in response to the Conuuission's action, City shall not be deemed to be in violation of any of ils obligations set forth herein. 4.6 Public Inanei I 19 Upon receipt of Landowner's written request. City shall consider in good faith any reWwms for Public Financing to assist in Landowner's Development of the Pr(iiecl; provided, however, that (i) in no event shall City be responsible to pay any costs or incur any liabilities in connection therewith and, to the extent City will be required to incur any such costs, Landowner shall advance or reimbwse the same pursuant to a subsequent agrccnwnl to be entered into by City and Landowner; (ii) in no evenl shall any City fiords or properly be used as a source of payment or security for ally such Public Financing; (iii) City reserves its full legislative discretion with respect to the liormation or any Public Financing districts (including without limitation a community facilities district or assessment district}, issuance of honds secured by the Properly (or portions thereol), and all nhatto'% relating thereto, including without limitation the total anhount of Public Financing to be provided, the eligible improvements for such Public Financing, provisions as to how any special taxes or assessments shall be allocated by nhcaos of the rate and method of, apportionment (Ti. engineer's report. the term of any bonds to be issuecL the minimum value -to -lice ratio to be used in sizing file bonds, an(] such other bond - related matters as the identity of consultants.. issuance costs, find the amount of capitalized interest and reserve fund requirements; and (iv) in no event shall City be deemed to be in Dclaull of its obligations set forth in this Agreement if h tails or refuses to fornh a Public Financing district, 112116 WO I.uNm 26 pq SKU auWW12 issue bonds, or take any other related action requcsled or desired by Landowner with respect thereto. 5. Anncndnxrnl or Caoccllalion ol'AZrccmcnl Except as expressly set lorlh herein, including without limitation Sections 3.2 and 8.3, this Agreement may be amended or canceled in whole or in part only by mulual 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 it) the event of an uncured detlmlt of Landowner. 6. 1,[16urcemcn1. 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 in accordance with its terms and without regard to any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Properly. In the event of any inconsistency or conflict behvcca the terms set forth in this Agreenncnt and any of the documents comprising the Development Plan, the terms and conclilions set forth in this Agreement shall govern. 7. Animal Review cif Isnulutvner'x Compliance Naito Agreement 7.1 General. City shall review this Agreement once during every twelve (12) mouth period following (lie 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 ti-onn time to lime to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 Landowner Obligation luDemonstrate Guud Faith Compliance. During each annual review by City, Landowner is required to demonstrate good faith compliance with the terms of the Agreement in accordance with the provisions of the Development Agrcemcut Ordinance and City's generally applicable policies and procedures. Landowner agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 7.3 Proccdwc. 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, i n IWMI.41011 ?1121844.12 30ui1,112 27 complied with the terms of this Agreement. If the City Council finds that Landowner has so complied, the annual review shall he 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 ]cast ten (10) clays to cure any noncompliance that relates to the payment of money and thirty (30) clays 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 Fi completion. If Landowner fails to curt such noncompliance within the time(s) set firth above, such failure shall be considered to be it Delaull and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non- lixclusivc iMcans fur Determining and Requiring 0trc if I andowneCs Dclault. The annual review procedures set firth in this Article 7 shall at,( be the exclusive nhetms for City to identify it Defeull by Landowner or limit City's rights or remedies fir any such Default. S. Events of Dclaull. 8.1 General Pruyitiions- Notice of Dcfaull and Cure Period; Judicial Reference 1i11 Remit if erinin Disputes. In the event of any material delault, breach, or violation of the terms of this Agreement (" Dcfault"), the Party alleging it Default shall have the right to deliver a written notice (each, it "Notice of Default`) to the defaulting Party. The Notice of Default shall specii *y the nature of the. alleged Default and a reasonable manner and sufficient period of time (lcn (10) days if the Default relates to the failure to timely make a monetary Paymcnl due hereunder, not less than thirty (30) days in the event of non- monetary DeIaUIIS excepting only a City Default in failing to timely commence conslructiva /iaslalltttion of the North and /or Central Community Park improvements after delivering the City Park Notice, as referred to in Section 3.3, and ninety (90) clays if file Default relates to a City Default in tailing to timely commence construction /installation of the North and /or Central Community Park improvements alter delivering the City Park Notice) in which the Default roust be cured (the "Cure Period "). During file Cure Period, the Party charged shall not be considered in Defult 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 layer than thirty (30) days after it receives the Notice of Default as to all non-monetary Defaults other than a City Default in tailing to timely conuucncc construction /installation of the North and /or Central Community Park improvements alter delivering the City Park Notice, and in no weal later than ninety (90) clays after City receives a Notice of Default with respect to its failure to timely commence construction /installation of flit North and /or Central Community Park improvements, and thereafter the defaulting Party shall diligently pursue said cure to completion. 112 W-675t-W4 i 7n2 184-1.12 :nnri W12 28 Notwithstanding the foregoing, in Ilse even! City and Landowner cannot resolve any dispute arising under cilhcf Section 3.3 or 3.41 of (his Agreement within thirty ('30) daps IbIlowing either Party's delivery of a iismice ol'Defiuilt to the other Parly, then either Pally shall have the right thereafter to submit such dispute to a raierencejudge Ar a hinding decision. Such disptile shall be heard by a relcrencc; proceeding Isom the Orange County Superior Court pursuant to California Code of Civil Procedure Section 633 et seq. A single referee shall try all issues arising under Section 3.3 and /or 3.4, as applicahle (hut not issues arising under any other provision of [his Ageemenl unless the Polies so agree in writing at the time of such judicial reference, wish each Party reserving file right in its sole and absolute discretion to decline to submit to judicial reference any dispute not arising under Section 33 or 3.4), whether of fuel or late, and report a finding and judgment lheram, and issue all relief appropriate nuclei- the circumstances of the controversy hchre him /hcr (and subject to the limitations on remedies set forth in Swoons 8.6- 8.10). The referee may be asked to issue orders Or the setlemcnt, cure, correction, or remedy of any such Default, or to aulbrce any covenant or agreement in Section 3.3 or 3.4 herein (m- other covenant or agrcunent set forth in this Agreemctt if and only if the Palics subsequently agree in writing to submit it to judicial relerence), to issue mandating or prohibitory itt.junetions, to issue it writ of mandamus, issue it declaration in any declaratory relief action, or to grant any other remedies antsislenl with the limitations on remedies set Forth in Sections S.6 -8.10 and the proposes of Ihis Agreement. All decisions of the referee within the permitted scope of the judicial relrcncc shall be Final and binding on the Parties. From the (late of the filing of a complaint or petition a +ill) respect to any dispute That is suhjecl to resolution by judicial reference, as set Earth above, until Mu date upon which the one referee chosen by Landowner and City agree to serve and it Met begins serving, the Orange County Superior Court Judge Billing as the writs and recciveis judge shall he the referee tier the purposes of issuing all orders in any proceedings hereunder. Any referee selected pursuant to Ihis Suction shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the California Constitution. Immediately upon the service of to aimpWAt that N subject tojucdicial reference, as set lbrlh above, counsel tar Landowner ,rod City shall be obligatad to cooperate in good tnith to select and (inmally retain the services of n referee, In wriling, through the services of the Judicial Arbitration and Mediation Sci vice. If Landowner and City are unable In agree on the identity of a referee within ten (to) clays of the service of such to complaint, either Part), may seek to have one appointed pursuant to California Code of Civil Procedure Section 640. The cost of such rela-cocc proceeding shall initially be borne equally by the Parties, but the prevailing party shall ultimately he awarded a judgment lbr its share of such costs. 8.2 Dufaull by Lamlownur. It' Landowner is alleged to have committed it non - monetary Default and it disputes the claimed Default, it may make it written request Fitt at, appeal hearing before the City Council within let, ( Ill) days of receiving um Notice of DdhWq and a public hearing shall ho scheduled at (lie ties[ 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 tell (10) clay period Will waive any right to a hearing on the claimed Default. If Landowner's appeal of the Notice of Dcniuh is timely and in good thiM but al)er a public hearing of Landowner's appeal (he City Council concludes that Landowner is in Default as alleged in the Notice of twuh, the accrual (dale Ibr commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be eslemled until the City Council's denial of Landowner's appeal is communicatcd in writing to Landowner. 1 0.116F;s1.un40 2l) )01KK $WQ W12 8.3 erg's Option to I ctnunalc Agreement In the event of an alleged Landowner Default City may not terminate (his Agreement without first delivering a written Notice of Delaull and providing Landowner with the opportunity to cure the Default within the C arc Period, as providal in Scokm &I, and complying with Section 8.2 if Landowner timely appeals any Notice of lMaull Willi respect to a non - monetary Default. A termination of this Agrecmenl by City shall he valid only it' good cause exists and is supported by evidence presented to the City Council at or in ccntnec(ion with a duly noticed public hcaring to establish (he existence of a Default. The validity of any termination may bcjudicially challenged by Landowner. Any such judicial challenge must be hi-ought within sixty (Gel) days of service on Landowner, by personal delivery, delivery by a reputable overnight delivery service (such as Federal Express) that provides a rcecipl confirming delivery, or by certified mail; return receipt required, of written notice oflerntination by City or a wril(en notice of City's delemdrallon of an appeal of the Nh(ice or Delaull as provided in Section 5.2. SA Durmh by (11. lP Landowner alleges a City Delaull and alleges that file City has not cured the Default Within the Cure Period, Landowner may, in accordance with the provisions in Section 8.3 above, pursue any equitable remedy available to it under this Agrecmenl, including, Withnut limitation, an action tin• a writ of mandamus, h"unclive relief, or specific performance ol'Cily's obligations set Will in this Agreement. Upon a City I:)cfW, any rcnddng delay's in Landowner's perfiwinancc hereunder shall neither be a Landowner Default nor constitute grounds lbr termination or cancellation of this Agreement by City and shall, at Landowner's option (and provided Landowner delivers written notice to City within thirty (30) days of the commencement ofthe alleged City Def AL extend the Tcrm %r a period equal to the length ol'lhe delay. SS Waiver. Failure or delay by either Parly in delivering a Noticc of Default shall not Waive that Parly's right to deliver a future Notice of Delaull or ow same or any, other Default. 8.6 Spcei tic Performance Remaly. Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its Inrc- existing condition once implementation of this Agreement has began. Alter such biplemcnlMm, both Landowner and City may be lureclosed from other choices they may have had to plan for the development of the Properly, to utilize the Property or provide IN- other benefits and alternatives. Landowner and City have invested significant time and resources and pca'linmcd 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 terms of this Agreement. It is not possible to determine the sum of money which Would adequately compensate Landowner or City tin• such eftbrls. For the above reasons, City and Landowner agree that damages would not be an adecµ(aw remedy if either City or Landowner fails to carry out its obligations under this Agreement. Therefore, specific perfilrtnanec of this Agreement is necessary to compensate nI NSWOM Nt:isW UA7W12 30 Landowner il'City fails to carry out its obligations under this Agreement or to compensate City if Laminatcr tails to carry iud its obligations under this Agreement. 8.7 Nlonclory Damages. Tbc Parlics agree Thal rminctary damages shall not be an available remedy IAr either Party Aw it Delaull hereunder by the other Party or Ar any acts or omissions by a Party arising out of this AgrcemcnC provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict C'ily's right to recover the Public Renclit Fecs, Landowner's 111% Fair share traffic fee for City's construclion of 131uf1' Road Font 17 °i Slrccl to 19i' Street in accordance with Section 3.4 (if applicable), am! the Fire Station No. 2 Fee at such time that said Ices are duc train Landowner as set AM herein; and (ii) nothing in this Section 8.7 is imen(led or shall be interpreted to limit or restrict Owners indemnity obligations set I'orih in Article 10 or the right of Ihe. prevailing Party in any Action to recover its litigation expenses, as set tbrih in Section S.I(1. 8.8 Additional C' l ,, Rcnnely Ibr hindowner's Delaull In the event of any Dcfauh by Landowner, in addition to any other remedies which may he available to City, whether legal or equitable, City shall be entitled to retain any Development Exactions applicable to the Prgjcct or the Property, iucludiag any Fees, grants, dedications, or innprovcnunls to public properly which it may have received prior to LaulowncCs Default withow recourse From Landowner or its successors or assigns. S.9 No Personal Liability of ('ily (Mch1s, I'nnpkWcc% or Agents or l andnwnel \gcmbefs, Mangers, tanployccs, tit Agents. No City official, employee, or agent and no member, manager, ollicer, employee, or COOSldlam of Landowner or of any or Landowner's respective members shall have any personal liability hereunder fur a Dctauh by City or Lwxlowncr, as applicable, orally or its obligations set forth in this Agrecnncul. S.I11 Recoecry of i.eit ai bxpenscs by Piuvailing ]'in ly in AtH oration. hn anyjudicial proceeding, arbitration, or mediation (collectively, ❑n "Action ") between the Parties Brat seeks to cafnrce the provisions of this Agiecmenl or arises out of this Agreenncot, file prevailing Party shall recover all of its actual and reusonable costs and expenses, regardless of whether they would be recoverable under Calit ndo Code of Civil Procedure section 10315 or C'ulilinrE Civil Code section 1717 in the absence of this Agreement. These costs aad expenses include expert witness Ices. attorneys' tees, and costs of im'cstigaion and preparation bclbre 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 it final judgment or dethsion. Q. Force I\gejcure, Neither Party shall be (Icerned to he in Dclaull where failure or delay in perlinrnnance of any of its obligations under this Agrcenncnl is causal, through no fault of the Purdy whose perlbrntance is prevented or dedayul, by H uuls, earthquakes, other acts of God, fires, wars, riots 112 1140,751-011411 3 I 10:MNI7 AIN 12 or similar hostilities, acts of terrorism, strikes or o(her labor dilticultics, stale or federal regulations, court actions, acts or omissions of (he other Party, third pm9y lawsuits, initiatives, and referenda. Except as specified above, nonperlbrmance shall not be excused because of the act or omission of, it third person. In no event shall the occurrence of an event ill force mgieure operate to extend the deadline for commencement of [lie Term of this Agreement or the Termination Date. In addition, in no event shall fhe time for perlormance of it monetary obligation, including without limitation Landowner's obligation to pay Public l3encM Pecs. be cxtcnded pursuant to this SCClion. 10. Indemnily Ohl igalions of I tindownu. 10.1 Indcnunily Arising Pmmn Acts or Omission of Landowner. Except to the extent caused by the intentional misconduct or gross negligence of City or one or more al'City's officials, employees, agents. anorneys, lessees! Or contractors (collectively, " City's Affiliated Parties`), Landowner shall indemnify, dicicnd, and hold harolICSS City and City's Affiliated Parties from and tigainsl all $11115. CIa1n15; IIabII111CS, losses. da111aIgCS; penalties, obligations, and expenses (including but not limited to nlorneys' Ices and costs) that may arise. directly or indirectly, front the acts, omissions; or operations of Landowner or Landowner`s agents, contractors, subcontractors, agents, or employees in the course of Development of the Pi -gicel or any other activities of Landowner relaliug to the Property or pursuant to (his Agmemel (collectively, it "Claim "), City shall have (lie right (o sclecl and rc(ain COMISel rc,lsonubly acceptable to Landowner to defend tiny Claim filed against City and/or tiny olC.'ity`s Altiliated Parties, and Landowner shall pay the reasonable cost for defense of any Claim, but in any event Landowner shall only be ohHWded to pay the fees and costs olonC Counsel irrespec(ivC oNmy actual or perceived conflict of interest among the City's Milialed Parties. The indemnity provisions in this Section 10.1 shall commence on the Agreement Datc, regardless olwhether the L• flec(ive Dale occurs, and shall survive the Termination Dale. 10.2 1 hill Party Liligalion. In addition to its indenmlily obligations scl forth in Section IM, Landowner shall indemnify, delend (with one emmsel x0ccicd by City and reasonably acceptable to Landowner, irrespective of any actual or perceived conflict of' interest among the City's AI'filialed Parties), and hold harmless City and City's Affiliated Parties Irons 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 fhe Project (including without limitation any actions taken pursuant to CEQA with respect thereto), tiny Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligadion shall include payment of reasonable attorney's Ices, 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. irchy RdIs to promptly notily Landowner of such Claim! Landowner shall not be responsible to indemnify, delend, and hold City harmless fiom such Claim until Landowner is so notified and il'City fails to cooperate in the defense of a Claim Landowner shall not be responsible to delend, indemnity, and hold harmless City during the period that Cify so fails to cooperate or for any losses attributable thereto, City shall he entitled to retain separdae Counsel reasonably acceptable to Landowner to represent City against the Claim and the City" defense costs for its separate counsel shall be 112uoo7 >bnn „o lnasad,l: aa7 u, it 32 included in Landowners indcuulity obligatinu, provided] that suc•,h Counsel shill] reasonably cooperate with Landowner in an eflorl to minimize Ilse total litigation expenses incurred by Landowner. In the event either C'ily or Landowner recovers any :utorney's lees, expert witness Iccs, costs, interest. on' other amounts limn the party or parties asseding the Claim, Landowner shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). 'rhe indemnity provisions in this Section 10.2 shall conuncnce on the Agreement Dale, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmental Indemnity.. In addition to its indemnity obligations set thrill in Section Ill.], f-oul and alter the Agrccment Date Landowner shall inden -miry. deInd (with one counsel selected by City and reasonably acceptable to Landowner, irrespective of any actual or perceived conflict of interest anion.; tile. C'ily's Afliliatal Parties); ;null hold harndess City anal Cily.`s r \Ililiated Parties ]roil and against any and all third party Claims filed against City and/or City's AI)iliated Parries for PeOMMI injury or death, properly damage, economic loss, statutory penalties or lines, and damages of any kind or nature whatsoever, includlnL without limitation reasonable atorney's fees; expert wilness fees, and costs, based upon or arising from any of the l'ollowing: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Properly in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any 1-lazardous Substance Rom 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 lion the Property and any other area disturbed, graded, or developed by Landowner in. connection with Landowner's Development of' the Project. The lixcgoing indemnity obligations shall not apply to any Hazardous Substance placed or stored on a separate legal lot within the Property alter the Lot Termination Date tin• said lot, as provided in Section 2.4 of [his Agreement. Notwithstanding any provision set l oh in this Section 103 to the contrary; Lanclowmers obligation to indenulio'; dclenL and hold harmless City and City's Affiliated Parties with respect to Environmental Laws ,incl Hazardous Substances shall not apply to any Claims arising out of the Mud or alleged acts or omissions of any person or entity other than Landowner or any of Landowners members, directors, ofHouls, employees; agents, attorneys, lessees, or contractors (collectively, '`Landowner's Milled Parties') with respect Io oil drilling or extraction operations conducted bay, on, or from the non - contiguous portion of the Oil Well Operational Area comprised of approximately 7.:219 acres of land area That is closest to Pacific Coast Highway and has been under City's control for a number of years prior to the Agreement Date. The indemnity provisions in this Section 103 shall commence on Ills Agreement Dale, regardless of whether the Effective Date occurs, and shall sunTive the Termination Dale. I I. Assiynn ew. Landowner shall have the right to sell, Imnski., or assign (hereinafter, collectively; a "Transfer ") Landowner's Ite title to the Properly; in whole or in part to a Permitted Transferee (which successor, as of the effective dale of the 1'ra nsler, shall become the '`Landowner" under [his Agreement) at any time from the Agrccmall Date until the Termination Dale; provided, roWMALIMIU M 33 however, that no size[) Transfer shall violate the provisions of the Subdivision !Map Act (Government Code Section 664 W el seq.) Or City's lard subdivision ordinance and any such Transfer shall include the assignmcnl and assumption of Landowner's rights, duties. and obligations set Rath in or arising under Ihis Agreement as to the Properly or tile. portion thereof so 'Transferred and shall be made in mHut compliance with the Allowing conditions precedent: (i) no transfer or assignmcnl of any of Landowner's rights or interest uuiler 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 Transfor, Landowner (as transferor) shall notify City, in writing, of such proposed "transfer and deliver to City it written assignment and assumption, executed in recordable form by the transferring and successor Landowner and in it fixn subject to the reasonable approval of the Cit.), Attorney of City (or designee), pursuant to which the transferring Landowner assigns to tluc successor Landowner and the successor Landowner assumcs front the transferring Landowner all of the rights and obligations of Ilse transferring Landowner with rCSpcCt to the Property or portion dlCfcof to be so I rnsfaTal. Including in the muse of a partial Transfer the obligation to perform such obligations that must be performed off of the portion of the Property so Translerred that are it condition prccalent to the successor Landowner's right to develop file portion of the Property so Transferred. Any Pe'n)itlal 'transferee shall have all of the sank rights; benefits, duties, obligations, and liabilities of Landowner under this Agreement with respect to the portion of the Properly sold, tralsferred, and assigned to such Pernitlal 1'rimsterec; 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 color into an amendment of Ibis Agreement that jcopardires 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 \vith the successor Landowner, to perform all of the Iranslerred obligations set Kmlh in or allsing Under Nis Agreement unless there is full satisfaction of all of the fallowing conditions, in which event the hansfcn'ing Landowner shall he automatically released Omni any and all obligations with respccl to the portion of (lie Property so Traosferred: (i) the transferring Landowner no longer has a legal or equitable interest in the portion of the Property so Transferred otlhe• than as it beneficiary Under it decd of trust; (ii) the transferring Landowner is not then in DeNuh under this Agrccmenl and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hmrconde; (iii) the transferring Landowmer has prov)dal Chy with the notice and the fully cxewted written and recordable assignn)cml and amun)ption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Landowner either (A) provides City with substitute security equivalent to any security previously provided by the lransfcrring Landowner to City to secure perfla nonce of the successor Landowner's obligations hereunder with respect to the Property or the portion of the Properly so Transferral or (l3) if Ilse transferred obligation in question is not it secured obligation, the successor Landowner either provides security reasonably Siltisfactory In Cih- or otherwise don onstrtes to City's reasonable satisfaction that the successor Landowner has the financial resources or connnilnlonls available to perform Iho transferred obligation at the time and in the nauner required under this Agreement and the Development Regulations for the Project. I .IINO561bW0 g4 VC!V1120mb ] 12. Mnulgagcc I?ighls. 12.1 Iaucumbrances (ill- IIiopci iy The Patties 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 Properly with any Mortgage securing financing will) respect to the construction, development, use, or operation of the Project. 12.2 Morlgagcc Prolection. This Agreement shall be superior and senior to the lien o1' 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 hllortgagee (whethef due to fou•eclosure, lrustee's sale, deed in lieu of lorcclosuro, lease (ern)illat ion, or o(herwise) shall be subject to all of the terms and condilions of this Agreen)en(. Any Mortgagee who takes title to the Property or any part of Iho Property shall be entitled (o the benefits arising under this Agreement. 12.3 Mrnlgagee Not Obligated. Notwithstanding the provisions of this Section 123, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Landowner or otlief 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 tams 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 o1_ Default to Moil .igcc, Right of N rlgagec 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, bill 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 thirty (30) clays 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 said cure period, lu the case of a non - monetary Default that cannot with diligence be remedied or cured within said cure period, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly cmnmenccs to cure the nun- monetary Defaull within sixty (60) clays and diligently prosecutes (lie cure to completion. 1 1241667 51-111M) l 0l &W.12 ,tl17116112 13. Misccllancous'1 cams. 13.1 Notices. Any notice or demand Thal shall be required or permitted by laws or any provision ol" this Agreement shall be in writing. If the notice or demand will be served upon a Pmly, it either shall be personally dclivcred to the Party; deposited in the United Stales mail, cerlificd, return rcccipl rcyuested, ;md paslage prepaid; or dclivcred 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 fiillows: "r0 C:fl 1': Cily ol'!N!cwport Beach 3300 Newport Boulevard Post Office Box 1769 Newport Beach, Calitittnia 92663 -3884 Alin: City!N4anagcr With a copy to: City Attorney Cityol'Newpmi Beach 3300 Newport Boulevard Post Office Box 1765 Newport Beach, California 92663 -3884 TO LANDOWNER: Acre Energy LLC Alln: Newport Banning Ranch LLC 3030 Saturn Street, Suite 101 Brea, California 92521 Attn: George L. Basye 'rO LANDOWNER: Cherokee Investment Paru!ers Attn: Cherokee Newport Beach, LLC 1 1 1 17. Hargett Street, Suite 300 Raleigh, NC 27601 Atln: Bret Batchelder Willi a copy to: Newport Banning Ranch LLC 1300 Quail Street, Suite 100 Newport Beach, Calitimnia 92660 Atln: Michael A. Mohlcr Tither Party m,ty change the address slated in this Section 1:1.1 by delivering notice to the other Parly in the manner provided in this Section 13. 1, and thereafter notices to such Party shall Ile 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 dale received or (iii) three business flays alter deposit in the mail as provided above. 1 1 2 116475 [A wID J 6 )n'21s.M. 12 an 7: !1-11, 13.2 I?rujccl as P_rivalc Urdu caking. The Development of the Project is a priwatc 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 partnership, joint venture, or other association of any kind. The only relationship between the Parties is Ihat of a government entity regulating the Development of privale properly by the owner of the property. 13.3 Coupudion. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any lime, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and lake any actions as may be reasonably necessary to implement this Agreement or to evidcnec or consummate the U<msactions contemplated by this Agreement. 13.4 F4Umpcl 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 fall 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 is 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, lien the other Party shall describe the nature and amount of the actual or prospective Default. Such estoppel certificates may be relied upon only by the Parties, their respective successors and assigns, and, in the event of an estoppel certificate issued by City, a Mortgagee of Landowner, including a Permitted Transferee and its actual or prospective Mortgagee. City shall be entitled to payment/rcimburscmcnt for its actual and reasonable costs of investigation and preparation of an estoppel certificate prior to issuing the same. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt (assuming, in the case of an estoppel cerliticate to be issued by City, Landowner has paid City the cost (hereof; as provided above). 13.5 RulcsafConstruction. The singular includes the plural; the masculine and ucuter include the feminine; "shall` is mandatory: and "may" is permissive. 13.6 Time Is ol`Ihc Fssence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 112-11405 1.111100 37 30:18'44.11 WIM49/ 13.7 Waiver. The failure by a Party to insist upon the strict performance oPany of the provisions of this Agreement by the other Party, and Milan; 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 sidul complitmcc by the other Puny in the home. 13.8 Counicrparls. 'Phis Agreement may be executed in two or more counterparts, each of Which shall be, identical and may be introduced in evidence or usal for any other purpose wilhoul any Other counterpart, but all of which shall logelhcr c nnslilule one and the same agrcenncut. 13.9 It.uliie Agiccmcnl. "['his Agreement constitutes the entire agreement between the Parties and supersedes all Prior agreements and umlenslanMngs, bolh written and oral, between the Parties with respect to the subject miller addressed in this Agreement. 13.111 Scverahifi j, The Parties intend that cacti and every obligation of the Parties is interdependent and interrelated uvilh (lie other, and if any provision of this Agreement or the application of the provision to luny Party or circumstances shall be held invalid or unenforccablc to any extent, it is the intention of the Parties that the remainder of this Agreement or the application or the provision to persons or circumstances shall be raWwvd invalid or uncnforceablc. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full perfixnualice 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 uncnliorccable as the result of any third party litigation, and City shall be lice to exercise ifs 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. IU shall apply regardIcss of whether the Effective [)life occurs and alter the Termination Datc. 13.11 t'nnslruelion. This Agreement has been dratted after extensive negotiation and revision. Bwh 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 rgwe c nled and voluntarily chose lo not be so represented. City and Landowner each agree and acknowledge that the terms or this Agreement are fair and reasonable, taking into account their respective purposes, lernns, and conditions. "Phis Agreement shall therefin•e be construed as a whole consistent with its Pair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part o1'Ihis Agreement in favor oror against either Party. 113unn7j LnIPm 3 13.12 Successors and Asati;ns; Const uclk e Non cc and Acceptance The burdens of this Agiveincnl shall be binding upon, and the bcnuHN of this Amwmncnt shall inure lo, all successors in interest to the Parties to this Agreement. All provisions of this Agrceinent shall be endwceablc as cglmble serviltulcs and constitute covenants running with the MI. Each covenant to do or rch'ain from doing some act hereunder will regard to Development of' the Properly: (i) is for the benefit of and is a burden upon every Portion of the Property; (ii) runs with the Properly and each portion lhercol; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any lwrlion thcrcoP. Every person or entity who now or later owns or acquires any rigbl, On or interest in any part of the Projeel or [he Property is and shall be conclusively dCCuled to have consented and agreed to every provision of this Agreement. This Seclinn 13.12 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges [his Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Scclion 11. 13.13 No •third Pare 13eneficia ics. The only Parties to [iris Agreement are City and Landowner. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be consfrued to benefit or he entiirccable by any other person or entity. 13.14 Applicahlc Law and Vcnue. "this Agreement shall he construed and cniirceed emmNlent with the internal laws of the slate of California, without regard to conflicts of I.mv principles. Any action at law or in equity arising under this Agreement or brought by any My Ivor the purpose of'enlin•cing, construing, or defcrmining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, Sude of Califin'nia, or the United Stales District Court for the Central District of Califiu'nia. The Parties waive all provisions of law providing fill- the removal or change of venue to any other court. 13.1 .5 Section I Icadings. All sccliou headings and subheadings are inserted for curvcnicnce only and shall nut alli:ct construction or interpretation ofthis Agreement. 1116 hwm post ion_orRecilas and Fxhihils. All of the Recitals are incorporated into this Agreement by this reference.. Exhibits A and 13 arc allnchcd to this Agreement and inampornled by this reference as Iollon's: 112 n06751d6191, ,� l) pnisga.ie MMO i! EXHIBIT DESIGNATION DESCRIPTION A Legal Description of Property B Depiction of the Property B -I Depiction of County Property 13.17 Rccurdation. 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 6556£.5 and City of Newport 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 PACE FOLLOWS] 112 O66%51- 110)11 tO 10718.1.1.17 0u7'10' 1' SIGNATURE PACE TO ZONING INIPLENIENTATION AND PUBLIC BENEFIT SPACE AGREEMENT LAN DOWNER" AERA ENERGY L.LC, a California limited liability company C Its: By: CHEROKEE NEWPORT BEACH, LLC, a Delaware limited liability company By: Its: By: Its: °CfrY" CITY OF NEWPORT BEACH Its: Mayor A`T'TEST: City Clerk APPROVED AS TO FORM: Aaron Harp, City Attorney 11!1160511 ouon I ]o? 1844. ? 01016 12 SIGNATURE PAGE TO ZONING IMPLEMENTATION AND PUBLIC BENE FIT SPACE AGREEMENT "LANDOWNER" AERA ENERGY LLC, a Calilo171ia limited liability company Its: c By:��1 —!� Its: C �(etinR� 1�V CHEROKEE NEWPORT BEACH, LLC, a Delaware limilcd liability company By: Its: By: Its: "CITY" CITY OF NEWPORT BEACH 0 Its: Mayor AYI'ES'f: City Clerk APPROVED AS TO FORM: Aaron Harp, City Attorney 112066751 -0090 1021644.12 AVIN12 41 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT yr4r4`f ANA 4cnX4e?5' Y'.r.'C.4CyC4'h)nc�4,'! ve:V �,c 4fVOtiryr<: e,4 .Y!LY4, r�,ry.'<:ryCarSryCy4tiCt, Slate of California County of 0 raw e. On i 96)a– before me, iV, personally appeared V&f) N. S OtaycCa, r o 0Pa 2 omin ram Pu�r'a - CaMom!n Orultlo C0ua1y . ritahs Nov 30,201i Plaza 1lalaP( seal Abo:e Who proved 10 nie on Ille basis of satisfactory evidence, to be the persol�sj Wwhose nalne(81 is /rue'subsclibed to the Wlthhl instrument and acknowledged to file that he /she{Ihey executed file same in his /111e1A law authorized capacilyoes); and Ihat by hishlerAheir signature (sp on 1110 instrument the person�sr or file entity upon behalf of which file persorIA anted, executed the instrumenl. I certify Under PENALTY OF PERJURY under the laws of file Slate of California that the foregoing paragraph is Ime and correct. WITNESS my hand arua official seal. Signature -% SN9aamw VI Hula, P.Me OPTIONAL V 'though Iho inlnrmalinn belmv is in[ reyt/ired by tar.; if mny prot%e valuable 10 persons regdnq oft the docmnenl and could prevent Imudufenl removal and Ioallachmenl or this loan to tlnuUrer dorument. Description of Attached Document Title 0e, Type of Document: Document Dade: Signers) Other Than Named Above: Capacity(fes) Claimed by Signer(s) Signer's Namo: _ • Individual • Corporate Officer -- Tille(s): I I Parinor —U Limited CI General , • U1 f I Mornay in Pact f I I'lostoo lull oI Ibumb hen; Guardian or Conservator Other. Signer Is Replesenlin0:_. Number of I -altos: Signer's Nat U Individual LI Corporate Officer — Tillr.(s): _ L' Partner — 0 Limited f I General C I Met noy in Pact n 11'ustee, ❑ Guardfan or Conservator ❑ 011101; Signet Is Representing: 0 4 1 ist' is •VIAXV;tIVIi;414't•(:c4?`4civ g;"L'(:r!Cc'4lwf' ^f:t•y'r"y`r' '- t;"!,i t ^Gc'f,'rty Li' G?} C;<' y?' ,CCGe:i;t:Gt•4c%Z:af:C:'('LY`Lx sC:C.4 ?'C!R WOW Il.Vou laot.ny A55oC °dlan• 0350 Da solo the. RU. oat 2- 102•ehag::oa0, G. 91313.2 f02•vnraaalona'RUaryme Il0lIn4101 Raonler Callln "•d7oe bpxl Wl; el19 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT T t' eru�vr�.rc Fs:ccr.C.ck ; tiS4rsrk*vt? cvTti,fc.'f srtiC ?'c,C•c <�� � � ? Slate of California County of 0 [j P. n On ) a aD) A before m Y e, M enk Axe e,,Iq ' W.'t f!amv sal III!n et IAeC!Lrel personally appeared - ZJ rrrvnc(sl of SiSr`eq who proved to me on the basis of satisfactory evidence to be the pecsonJsYwhose naume(sj is /era subscribed to the within instillment and acknoln/ledged to me that helshelthey- executed tho saute in his /harllhrir authorized :1RMIlAn capacily(ies), and Ihal by his4aeritheir signalure(sjoil the .10102=1' instrument the person(5). or the entity upon behalf of l pp=3.6.2-yrZ ;, which the person(3)- acted, rxeculed the inSUUrncnl. O h - 17 � Tony. prilp I certify under PENACFY OF 13EFIJURY under the laws of lice Slate of California Ilia[ ilia foregoing paragraph is true and correct. WITNESS my hand and official seal. Signalurc ' Sl /- ot.L1r1�ti- PlacaPWry<ealAtwa OPTIONAL U s'gwom a. vlo:y FWfe Though the hn/mulalion Delon is not required by Im:; it may prove, vatuable to poisons relying on the document and Muld prrvenl lailidldant removal and raaltadanant of this form to inothrr document. Description of Attached Document 'ritie or'ype of Dermnenl: & 1 _n '7,10",,w A . Document Dade: Signer(s) Other Than Nained Above: Capacity(ics) Claimed by Signer(s) Signer's Name: _ • Individual • Corporate 011lcor— 'rille(s): — r'I Partner —D Limited U General r i Attorney in Fact 0 Trustee U Guardian or Conservator U Other: Signer Is Representing: MRS l Number of Paqus: Signer's Name: I. I Individual n Corporate Officer — Tillu(s): ❑ Partner —L' Urniled I I Genpral O Attorney in Fact ❑ IYustee 1 -1 Guardian or COnselVetOl' U Other: Signor Is Ilepresenling:_ Iii° 'i'"aMrlfie'�`I .. br'�c Cr" q^ Z: r{; z"i:rL�r^C�`L°r.- (:'r`Z�t`4z•4z C<' L' r`. i ;<•�'•.�+`4'z'44°4t- rri;: "rz"L4 <:e<;r�`i:r4etLe°{:tZ <Z?'L•cCZ• �rR?'Lv'�<R:t'LkZV'�rR:'•,t - :0M7llul.vl Haiy Aocr40:1 -U350 D. onto Ali. no.IW24p2•Cnuls::mIA,CA 91 :11341,V 11111, " M7 neorJw.001neSFlv`o I SWIG SIGNATURE PAGE TO ZONING II'IPLEI'IENTATION AND PUBLIC BENEFPP SPACE AGREEN'IENT "LANDOWNER" AERA ENERGY LLC, a California limited liability company M M CHEROKEE NEWPORT BEACH, LLC, a Delawarreef limited /liability /company By: 4L))�i( Q1�lCt /(_� Its: V%rle_ pfe.� tl W�VL By: Its: "CITY" CITY OF NEWPORT BEACH By: Its: Mayor ATTEST: City Clerk APPROVED AS TO FORM: Aaron Harp, City Attorney 112,0667jl -011w 3 4I91 �1.12 a0 b02112 41 STATE OF CALIFORNIA COUNTY OF ORANGE On , betbre me, the undersigned, a Notary Public in and for said Slate, personally appeared _ and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State STATE OF CF117IFOR -N-I-A COUNTY O//F OR -ANGE W4-11r(5' On C u-- 9 YO/ 'I-7before me, the undersigned, a Notary Public in and for said State, pens Tally al eared /34r =% /&y- 7-M,6eLdE2and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which tte persons acted, executed the instrument. Witness illy hand and official seal. Notary Public in and for /- t,yly� 11- r! 1-77,5-e-1 said County and State o� ff oy oumne, porin cm ®eta C1O60 County y COIn rA l6ulOn Ito �II00 D ou 14 3 i6 112dIfifi751 (1)90 0121 N41.12 07.02112 -42- STATE Oh CALIFORNIA COUNTY OF ORANGE On , hckwe me, the undw6gned, a Nolmy Public in and for said State, personally appeared __ and , Persimally known to me to be the persons whose manes MV Subscribed to thu within instrument and acknowledged to nra that they executed the suuc in their authorized capacities and &M by their signature on the instrument the pemms, or the entity upon hchalf of which Ilse persons acted, cxcculcd the instrument. Witness my hand andofticiol seal. Notary Public in and tar said County and State STATE OF CALfFORNIA COUNTY OF ORANGE. On , beRve me, the undersigned, a Notary Public in and tar said Statct personally appeared and personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that trey executed the same in their authorized capacities and that by their signature on the instrument Ihe: personS, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for Said County and State 1120051 =11 WM DwmnU -42- STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and fir said State, personally appeared and , personally known (o me to be file persons whose mmcs are subscribed to the within instrument and acknowledged to tile that (hey executed the same in their authorized capacities and that by their signature on the iirs(rument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and Stale STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, it Notary Public in and for said Slate, personally appeared and , personally known to me to be (lie persons whose names are subscribed to the within instrument and acknowledged to me Ihat They executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State 111 01.1,751.11uvu 302IR44.12 x07116 12 SUM 1846A -43- STATE OF CALIFORNIA COUNTY OF ORANGE Oil , before me, the undersigned, a Notary Public in and fur said Stale, personally eppeured and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in Ihcir authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and #br said County and State 112 mus WWI MUSS .12A Ioh soru1s16.a -44- EXIIIIII'I' A LEGAL DIsSCRIPTION OF PROPERTY Real proIx -ily in The unincuipo ated area of the County of Orancle, Stale of California, dmi ibed as follows: PARCEL 1: A PORTION OF LOTS "B ", "C" AND "D ", ALL IN THE BANNING TRACT, AS SHOWN 014 A MAP OF SAID TRACT FILED IN THE CASE OF HANCOCK BANNING AND OTHERS VS. MARY H. BANNING, FOR PARTJTION, BEING USE NO. 6385 UPON THE REGISTER OF ACI -IONS OF THE SUPERIOR COURT OF LOS ANGELES COUNTY, CALIFORNIA, AND A PORTION OF RANCHO SANTIAGO DE SANTA ANA., DESCRIBED IN BOOK 3, PAGE 387 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A P0114T ON THE BOUNDARY LINE BETWEEN LOTS "A" AND "B" OF SAID BANNING TRACT, WHICH POINT IS THE POINT OF INTERSECTION OF THE CENTER LINE OF NINETEENTH STREET AND THE NORTHWESTERLY LINE OF THE FIRST ADDITION TO THE NEWPORT MESA TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 61 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTH 89 DEGREES 26' 55" WEST ALONG THE NORTHERLY LINE OF SAID LOT "B ", 3315.29 FEET TO THE NORTHWESTERLY CORNER OF LOT "B" OF SAID BANNING TRACT; THENCE SOUTHERLY ALONG THE WESTERLY BOUNDARY UNE OF LOT "B" OF SAID BANNING TRACT, THE FOLLOWING COURSES AND DISTANCES: SOUTH 1 DEGREE 45' WEST 462,00 FEET; THENCE SOUTH 34 DEGREES 15' WEST 462.95 FEET; THENCE SOUTH 6 DEGREES 15' EAST 1058.48 FEET; THENCE SOUTH 19 DEGREES 45 WEST 529.21 FEET; THENCE SOUTH 34 DEGREES 30' WEST 463.(18 FEET; THENCE SOUTH 42 DEGREES 45' WEST 397,0) FEET; THENCE SOUTH 4 DEGREES 45' WEST 462.00 FEET; THENCE SOUTH 21 DEGREES 15' WEST 148.50 FEET TO THE SOUTHWEST CORNER OF LOT "B ", AS SHOWN ON SAID MAP OF THE BANNING TRACT, WHICH CORNER 15 ALSO STATION NO. 149 OF THE BOUNDARY LINE OF RANCHO SANTIAGO DE SANTA ANA, AS DESCRIBED IN BOOK 3, PAGE 387 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; THENCE SOUTH 72 DEGREES 51' 36" EAST 507.47 FEET TO A POINT WHICH BEARS NORTH 20 DEGREES 32' 44" EAST 606.79 FEET FROM THE POINT OF INTERSECTION, OF THE CENTER LINE OF THE SANTA ANA RIVER, AS SHOWN ON THE MAP FILED IN AND ANNEXED TO THE COMPLAINT IN THE CASE OF J. B. BANNING JR. VS. SMITH AND OTHERS, BEING CASE NO. 22797 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR ORANGE COUNTY, A COPY OF THE JUDGMENT OF SAID CASE NO. 22797 HAVING BEE14 RECORDED JULY 19, 1929 IN BOOK 297, PAGE 7G OF OFFICIAL RECORDS, WITH THE SOUTHEASTERLY LINE OF SUMMIT STREET', 30 FEET IN WIDTH, AS SHOW14 ON A MAP OF EL MORO TRACT RECORDED IN BOOK 8, PAGE 75 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE EASTERLY, NORTHEASTERLY AND SOUTHEASTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE SANfTA ANA RIVER A14D 600.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLO%mG COURSES AND DISTANCES: SOUTH 78 DEGREES 02' EAST 486.60 FEET; THEI4CE SOUTH 66 DEGREES 42' 20" EAST 517.33 FEET; THENCE NORTH 20 DEGREES 06' 15" EAST 539.49 FEET; THENCE NORTH SI DEGREES 48' EAST 405.76 FEET; THENCE NORTH 74 DEGREES 07' EAST 722.86 FEET; THENCE SOUTH 4S DEGREES 20' 28" EAST 740.97 FEET; THENCE SOUTH 27 DEGREES 4G EAST 498.37 FEET; THENCE SOUTH 13 DEGREES 35' 40" EAST 820,19 FEET; THENCE SOUTH 1 DEGREE 38' 25" WEST 871.22 FEET TO A POINT IN A LINE 600.00 FEET NORTHERLY OF AND PARALLEL WITH THE NORTHERLY LINE OF THE lun -FOOT RIGHT OF WAY OF THE CALFORNIA STATE HIGHWAY, AS DESCRIBED IN DEED RECORDED APRIL 20, 1936 IN BOOK 822, PAGE 48 OF OFFICIAL RECORDS; THENCE SOUTHEASTERLY, PARALLEL WITH THE NORTHERLY AND I ! non75 r❑nm0 NQ is +i: 1.001 uri x NORTHEASTERLY LINE OF SAID CALIFORNIA STATE HIGHWAY, THE FOLLOWING COURSES AND DISTANCES: THENICE SOUTH E3 DEGREES 18' FAST 328.62 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 16 5 (1.(10 FEET AND TANGENT TO 1 FIE LAST MENTIONED COURSE, A DISTANCE OF 5(1(1.12 FEET; THENCE SOUTH (55 DEGREES 56' EAST, TANGENT TO SAID CURVE, 667.15 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1650.01) FEET AND TANIGEIJT TO THE LAST MENTIONED COURSE, A DISTANCE OF 48.34 FEET TO A POINT IN THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF WHITTIER AVENUE (60 FEET IN WIDTH), AS SHOWN ON A MAP OF THE NEWPORT MESA TRACT RECORDED IN BOOK 5, PAGE I. OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, A RADIAL LINE FROM SAID POINT BEARS SOUTH 25 DEGREES 44'43" WEST; THENCE NORTH a DEGREES 36111" WEST ALONG THE SAID PROLONGATION OF WHITTLER AVENUE, 3061.05 FEET TO A POINT IN THE SOUTHWESTERLY LINE OF SAID FIRST ADDITION TO NEWPORT MESA TRACT; THENCE NORTH 29 DECREES 24'45" WEST ALONG THE SOUTHWESTERLY LINE OF SAID FIRST ADDITION TO THE NEWPORT MESA TRACT, 2706.7(1 FEET TO THE MOST WESTERLY CORNER OF SAID FIRST ADDITION TO THE NEWPORT MESA TRACT; THENCE NORTH 19 DEGREES 111'55" EAST ALONG THE NORTHWESTERLY LINE OF THE LAST MENTIONED TRACT, 1065.62 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM, THAT PORTION OF LOT "B" OF SAID BANNING TRACT DESC'PIBED AS FOLLOWS: BEGINNING AT A POINT IN THE EASTERLY LINE OF THE 300 -FOOT STRIP OF LAND FOR SANTA ANA RIVER CHANNEL, AS DESCRIBED IN THE DEED TO THE NEWBERT PROTECTION DISTRICT, RECORDED JUNE 22, 1911114 BOOK. 197, PAGE 300 OF DEEDS, ORAIVGE COUNTY, WHICH POINT IS NORTH 71 DEGREES 21)' EAST 510.47 FEET FROM THE SOUTHWEST CORNER OF SAID LOT "B ", WHICH IAST MENTIONED CORNER IS A1,50 STATION 149 OF THE RANCHO SANTIAGO DE SANTA ANA; THENCE NORTH 13 DEGREES 25' EAST ALONG THE EASTERLY LINE OF SAID 3uu -FOOT STRIP OF LAND, 660 FEET; THENCE SOUTH 76 DEGREES 35' FAST 660 FEET; THENCE SOUTH 13 DEGREES 25' WEST 6611 FEET; THENCE NORTH 76 DEGREES 35' WEST 66(1 FEET TO THE POINT OF BEGINNING, AS CONDEMNED BY THE CITY OF NEWPORT BEACH IN THE ACTION ENTITLED "C'IlY OF NEWPORT BEACH, A MUNICIPAL CORPORATION, PLAINTIFF VS. TOWNSEND LAND COMPANY AND OTHERS, DEFENDANTS ", BEING CASE NO. 34747 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR ORANGE COUNTY, A CERTIFIED COPY OF THE FINAL JUDGMENT HAVING BEEN RECORDED AUGUST 20, 1937 IN BOOK 910, PAGE 19 OF OFFICIAL RECORDS OF ORANGE COUNTY. ALSO EXCEPTING THEREFROM, THAT PORTION OF LOT "B" IN SAID BANNING, TRACT CONVEYED BY THE TOWNSEND LAND COMPANY TO THE NEWBERT PROTECTION DISTRICT FOR A RIVER CHANNEL, 3u0 FEET WIDE., BY DEED RECORDED )LINE 22, 1911 IN BOOK 197, PAGE 300 OF DEEDS, ORANGE COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE SOUTHERLY LINE OF SAID LOT "B" OF THE BANNING TRACT, SOUTH 84 DEGREES 45' EAST 135.04 FEET DISTANT FROM THE SOUTHWESTERLY CORNER OF SAID LOT "B ", WHICH CORNER IS ALSO STATION 149 OF THE RANCHO SANTIAGO DE SANTA ANA; THE14CE NORTH 13 DEGREES 25' EAST ALONG THE WESTERLY SIDE OF SAID 300 -FOOT RIGHT OF WAY, 946.75 FEET TO A POINT IN THE WESTERLY LINE OF SAID LOT "B' THENCE ALONG THE WESTERLY LINE OF SAID LOT "B ", NORTH 42 DEGREES 45' EAST 30.7(1 FEET TO AN ANGLE IN SAID WESTERLY LINE; THENCE NORTH 34 DEGREES 31)' EAST 462.0(1 FEET TO AN ANGLE IN SAID WESTERLY LINE; THENCE NORTH 19 DEGREES 45' EAST 528.00 FEET TO AN ANGLE IN SAID WESTERLY LINE; THENCE STILL ALONG SAID WESTERLY LINE, NORTH 6 DEGREES 15' WEST 723.17 FEET TO A POINT IN THE WESTERLY LINE OF SAID 300 - FOOT RIGHT OF WAY; THENCE NORTH 13 DEGREES 25' EAST ALONG THE WESTERLY LINE OF 112 Uo6751- I)U"II 302 1 x44. 2 aU7116 SAID RIGHT OF WAY, 607.27 FEET TO A POINT 1N THE WESTERLY LINE OF SAID Lar "B' THENCE ALONG THE WESTERLY LINE OF SAID LOT "B ", NORTH 34 DEGREES 15' EAST 148.48 FEET TO AN ANGLE lid SAID LINE; THENCE NORTH I DEGREE 45' EAST 436.44 FEET TO THE NOR111WEST CORNER OF SAID LOT "B "; THENCE ALONG THE NORTHERLY LINE OF SAID LOT "B ", NORTH 89 DEGREES 28' FAST 346.14 FEET TO A POINT IN THE EASTERLY LINE OF SAID 300 -FOOT RIGHT OF WAY; THENCE SOUTH 13 DEGREES 25' WE=T ;831.55 FEET TO THE SOUTHERLY LINE OF SAID LOT "B'; THENCE ALONG THE SOUTHERLY UNE OF SAID LOT "B ", NORTH 84 DEGREES 45' WEST 303.08 FEET TO THE POINT OF COMMENCEMENT. ALSO EXCEPI7NG THEREFROM, THE PORTIONS THEREOF INCLUDED WITHIN A STRIP OF LAND 30 FEET IN WIDTH, THE CENTER LINE OF WHICH 1S DESCRIBED A`, FOLLOWS: BEGINNING AT THE POINT WHERE THE EASTERLY BOUNDARY 1-111E OF THE RANCHO LAS BOLSAS BETWEEN STATIONS 78 AND 79 OF THE ;AID BOUNDARY LINE 1S INTERSECTED BY THE LINE WHICH BEARS NORTH 13 DEGREES 26' 30" EAST FROM THE POINT ON THE SOUTH LINE OF SECTION 18, TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN, 2294.92 FEET NORTH 89 DEGREES 38' EAST FROM THE SOUTH QUARTER SECTION CORNER OF SAID SECTION, SAID BEGINNING POINT BEING Old THE SURVEYED CENTER LINE OF THE SANTA ANA - ANAHEIM JOINT OUTFALL SEINER; THENCE FROM SAID POINT OF BEGINNING, SOUTH 13 DEGREES 26' 30" WEST ALONG SAID CENTER LINE TO STATION 787+74.49, BEING THE POINT ON THE SOUTH UNE OF SAID SECTIOPI 18, 2294.92 FEET NORTH 89 DEGREES 38' EAST FROM THE SOUTH QUARTER CORNER OF SAID SECTION; THENCE CONITINUING SOUTH 13 DEGREES 26' 30" WEST ALONG SAID SURVEYED CENTER LINE, 2795.66 FEET TO STATION 215 +70.75; THENCE SOUTH 16 DEGREES 27'3o" WEST ALONG SAID CENTER LINE, 1050.35 FEET TO A POINT 15.30 FEET SOUTH 84 DEGREES 45' EAST FROM STATION 68 OF THE RANCHO LAS BOLSAS, TOGETHER WITH THE STRIP OF LAND OF VARYING WIDTHS LYING BETWEEN THE EASTERLY LINE OF THE ABOVE DESCRIBED 30 -FOOT STRIP AND THE WESTERLY LINE OF THE RIGHT OF WAY OF THE SANTA ANA RIVER THROUGH THE NEWBERT PROTECTION D15TR1CT, AS CONVEYED TO THE CITY OF SANTA ANA BY DEED RECORDED APRIL 14, 1934 IN BOOK 670, PACE 147 OF OFFICIAL RECORDS, ORANGE COUNTY. ALSO EXCEPTING THEREFROM, THAT PORTION OF SAID LAND INCLUDED WITHIN A STRIP OF LAND 180 FEET WIDE, DESCRIBED AS PARCELS D3-121.1 AND D3 -122.1 IA' THE F114AL ORDER OF CONDEMNATION RENDERED JANUARY 26, 1962 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF ORANGE, IN THE ACTIOP! ENTITLED "ORANGE COUNTY FLOOD CONTROL DISTRICT VS. CITY OF NEWPORT BEACH, AND OTHERS' (CASE NO. 77399), A CERTIFIED COPY OF VwHICH DECREE WAS RECORDED JANUARY 30, 3962 IN BOOK 5993, PAGE 441 OF OFFICIAL RECORDS, ORANGE COUNTY. ALSO EXCEPTING THEREFROM, THAT PORTION OF SAID LAND INCLUDED WITHIN THE FOLLOWING DESCRIBED LAND: THAT PORTION OF BLOCK C OF THE BANNING TRACT, AS SHOWN ON A MAP ATTACHED TO REPORT OF THE REFEREES FILED APRIL 14, 1891) IN CASE NO. 6385 IN TI•IE SUPERIOR COURT OF THE STATE OF CALIFORNIA, III! AND FOR THE COUNTY OF LOS ANGELES, AND THAT PORTION OF LOTS 1111 AND 1112 AND PORTION OF SIXTEENTH STREET AND WHITTIER AVENUE ADJOINING, AS SHOWN ON THE MAP OF NEINPORT MESA TRACT RECORDED IN BOOK 5, PAGE 1 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUPTTY, CALIFORNIA, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT THE INFFERSECTIOPI OF THE CENTER LINE OF SAID SIXTEENTH STREET WITH THE SOUTHWESTERLY BOUNDARY LINE OF FIRST ADDITION TO NEWPORT MESA TRACT, AS SHOWN ON A 14AP RECORDED IN BOOK 8, PAGE 61 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTH 89 DEGREES 21'50" WEST 16.50 FEET TO IIkI IN, Ps I.00911 A 121. W.12 :01741 12 THE BEGINNING OF A TAIl)GENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 500,00 FEET; THENCE WESTERLY ALONG SAID CURVE_, THROUGH A14 Ali(.-,LE OF 28 DEGREES 48" 33', A DISTANCE OF 251,11 FEE-T TO A LINE TANGENT; THENCE SbITTf -I 60 DEGREE_ ;13' 17" WEST ALONG SAID LINE TANGENT, A DISTANCE OF 404.60 FEET; Th1ENCE_ NORTH 29 DEGREES 26' 43" WEST 804.5u FEET; THENCE NORTH 60 DEGREES 33' 17" EAST 300.00 FEET; THENCE SOUTH SR DEGREES 48'2f," EAST 316.57 FELT TO A POINT IN A CURVE CONCAVE SOUThEASTERLY AND HAVING- RWDSLS OF Suau FEET, A JaD1Al LhE FROM SAID POINT BEARS NORTH 89 DEGREES 21' SO" FAST THENCE NORTHERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 44 DEGREES 24' 55", A DISTANCE OF 38.76 FEET TO THE BEGINNING OF A TANGENT' CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 90.0H FEET; THENCE NORTHERLY ALONG' SAID CURVE, THROUGH AN ANGLE OF 44 DEGREES 24'55", A DISTANCE OF 69.77 FEET TO A LINE TANGENT; THENCE NORTH H DEGREES 38' 10" WEST ALONG SAID LINE TANGENT, A DISTANCE OF 11,11 FEET TO THE SAID SX.AITHWESTERLY BOUNDARY LINE CJF FIRST ADDITION TO NEWPORT MESA TRACT; THENCE SOUTH 29 DEGREES 26'43" EAST ALONG SAID SOUTi-T1h!ESTERLY BOUNDARY LINE, A DISTANCE OF 789.32 FEET TO THE POINT OF BEGINNING. AS DESCRIBED IN THE FINAL ORDER OF CONDEMNATION RENDERED AUGUST 4, 1965 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF ORANGE, ENTITLED "COSTA MESA UNION SC}- i0(:)L DISTRICT OF ORANGE COUNTY, CALIFORNIA VS. SECURITY FIRST (RATIONAL BANK; ETC., AND OTHERS" (CASE NO. 123141), A CERTIFIED COPY OF WHICH ORDER WAS RECORDED AUGUST 5,196S IN BOOK 7620; PAGE 215 OF OFFICIAL RECORDS, ORANGE COUNTY. ALSO EXCEPTING THEREFROM, THAT PORTION DESCRIBED AS FOLLOWS: THAT PORTION OF LOT B OF THE BANNING TRACE, AS SHOWN ON A MAP FILED IN THE CASE OF HANCOCK BANNING AND OTHERS VS, MART' H. BANNING, FOR PARTITION, BEING CASE NO. 6385 UPON THE REGISTER OF ACTIONS OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AIti�D FOR LOS ANGELES COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT B; THENCE SOUTHERLY ALONG THE WESTERLY Bc)UNDARY OF SAID LOT 8, SOUTH 01 DEGREE 45' oo" WEST 462,w FEET TO RANCHO LAS BOLSAS, STATION 75, AND SOUTH 34 DEGREES 1` uu" WEST 462.95 FEET TO RANCHO LAS BOLSAS, STATION 74, BEI146 THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID WESTERLI' BOUNDARY, SOUTH 06 DEGREES 15' 00" EAST TO THE WESTERLY LINE OF THE STRIP OF LAND DESCRIBED 114 DEED TO THE CITY OF SANTA ANA, RECORDED APRIL 14, 1934 11V BOOT: 670, PAGE 147 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE INTERSECTION WITH THAT CERTAIN COURSE HEREINABOVE CITED AS "SOUTH 34 DEGREES 1500" WEST 462.95 FEET THENCE: ALONG SAID CERTAIN COURSE, SOUTH 34 DEGREES 15' MV WEST TO THE TRUE POINT OF BEGINNING, ALSO EYCEPTING THEREFROM THOSE PORTIONS DESCI't1BED AS PARCEL; 100, llt3, 106 AND 108 IN THE NOTICE OF US FENDERS, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CASE NO. C.V 91- 3991 -IH, A CERTIFIED OF WHICH WAS RECORDED AUGUST 23, 1991 AS INSTRUMENT No. 91- 455338 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, WHICH INCLUDES A DECLARATION OF TAKING. ALSO EXCEPTING THEREFROM, THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERALS, INCLUDING, BUT PIOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL GAS, AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WITH THE RIGHT OT- INGRESS AND EGRESS, UPON, OVER AND BENEATH THE SURFACE OF SAID LAND, AT i 3m,ias i anrou 3 ALL TIMES TO EXPLORE FOR, EXTRACT AND REMOVE ANY OF SAID MINERALS LOCATED BELOW A DEPTH OF 6200 FEET, BUT WITHOUT THE RIGHT TO USE THE SURFACE OF SAID LAND DOWN TO A DEPTH OF S00 FEET, AS RESERVED IN THE DEED EXECUTED BY HANCOCK BANNING JR. AND OTHERS; DATEI:) AUGUST 1, I958, RECORDED AUGUST 29, 1958 IN BOOK 4400, PAGE 532, AND RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PAGE 228, AS AMENDED B1' THE DEED AND AGREEMENT EXECUTED BY HANCOCK BANNING JR, A14D OTHERS, RECORDED DECEMBER 27, 1'961 IN BOOK 5957, PAGE 665, ALL IN OFFICIAL RECORDS, ORANGF COUNTY, PARCEL 2: BEGINNING AT THE SOUTHWEST CORNER OF THAT CERTAIN LAND AS DESCRIBED IN PARCEL 1119 DEED FROM HANCOCK BAPNING.)R. AND OTHERS; DATED AUGUST 1, 1958, RECORDED AUGUST 29, 1958 IN BOOK 4400, PAGE 532 OF OFFICIAL RECORDS, ORANGE COUNTY, AND RE- RECORDED OCTOBER 6, 195E 111I BOOK ,W37, PAGE 22£1 OF OFFICIAL RECORDS, ORANGE COUNTY, ALSO BEING THE SOUTHWEST CORNER OF LOT "B" OF THE BANNING TRACT, AS SHOW 14 ON THE MAT' ATTACHED TO THE REPORT OF THE REFEREES FILED APRIL 14, 1890 IN CASE NO, 6385 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, CALIFORNIA, WHICH CORNER IS ALSO STATION 149 OF THE BOUNDARY TUNE OF RANCHO SAJ:171A(30 DE SANTA ANA, AS DESCRIBED IN BOOK 3, PAGE 311 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 1, SOUTH 72 DEGREES Sl' 36" EAST 807.47 FEET TO A POINT WHICH BEARS NORTH 20 DEGREES 32'44" EAST 606.79 FEET FROM THE POINT OF INTERSECTION OF THE CENTER LINE OF THE SANTA ANA RIVER, AS SHOWN ON THE MAP FILED IN AND ANNEXED TO THE COMPLAINT IN THE CASE OF J. B. BANNING JR. V_,, SMITH AND OTHERS, BEING CASE NO. 22797 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR ORANGE COUNTY, A COPY OF THE JLIDGMENT OF SAID CASE NO. 22797 HAVING BEEN RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORD:, WITH THE SOUTHEASTERLY LINE OF SUMMIT STREET, 311 FEET IN WIDTH, AS SHOWN ON A MAT' OF EL MORO TRACT RECORDED IN BOOK 8, PAGE 75 OF MISCELLANEOUS MAPS, REC(:)ItDS OF ORANGE COUNTY, CALIFORNIA: THENCE EASTERLY, NORTHEASTERLY AND SOUTHEASTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER AND 600.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: SOUTH 78 DEGREES 112' EAST 486.60 FEET; SOUTH 66 DEGREES 42' 20" EAST 517.3-1 FEET; NORTH 20 DEGREES 116' 15" EAST 539.49 FEET; NORTH 51 DEGREES 48' EAST 405.76 FEET; NORTH 74 DEGREES o7' EAST 722.86 FEET; SOUTH 45 DEGREES 20 28" EAST 740.97 FEET; SOUTH 27 DEGREES 46' EAST 496.37 FEET; SOUTH 1.3 DEGREES 354t)" EAST 820.19 FEET; SOUTH I DEGREE 38'25" WEST 871.22 FEET TO A POINT IN A LINE 600.00 FEET NORTHERLY OF AND PARALLEL WITH THE NORTHERLY LINE OF THE 1001 -FOOT RIGHT OF WAY OF THE CALIFORNIA STATE HIGHWAY, AS DESCRIBED 114 DEED RECORDED APRIL 201, 1936 IN BOOK 622, PACE 48 OF OFFICIAL RECORDS, ORANGE COUNTY; THENCE SOUTHEASTERLY, PARALLEL WITH THE NORTHERLY AND NORTHEASTERLY LINE OF SAID CAL1F-ORNIA STATE HIGHWAY, THE FOLLOWING COURSES AND DISTANCES: SOUTH 83 DEGREES 18' EAST 328.62 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST, HAVIf4(-.; A RADIUS OF 1650.110 FEET AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 51)0.12 FEET; THENCE SOUTH 65 DEGREES 56' EAST, TANGENT TO SAID CURVE, 667.15 FEET TO THE BEGINNING OF A CURVE TO THE FIGHT; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1650.00 FEET, AND TANGENT TO THE IAST MENTIONED COURSE, A DISTANCE OF 48.34 FEET TO A POINT IN THE SOUTHERLY PROLONGATION OF THE EASTERLY UNE OF WHITTIER AVENUE (60 FEET IN WIDTH), A SHOWN ON A MAP OF THE FIRST ADDITION TO NEWPORT MESA TRACT RECORDED IN BOOK 8, PAGE 61 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, A RADIAL 112 "1q, '15 1 -011911 11121841.12 Wp, I6, 0 LINE FROM SAID POINT BEARS SOUTH 25 DEGREES 44'43" WEST, WHICH POINT IS THE SOUTHEAST CORI4ER OF SAID PARCEL 1; THENCE SOUTH 0 DEGREES 36' ul" EAST ALONG THE SAID PROLONGATION OF WHITTIER AVENUE, 404.46 FEET TO A14 INTERSECTION WITH THE NORIHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 250 FEET IN WIDTH, AS DESCRIBED IN PARCEL 1, ARTICLE TI OF SAID DEED RECORDED AUGUST 29, 195£ IN BOOK 441)q PAGE 532 OF OFFICIAL RECORD`., ORANGE COUNTY, AND RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PAGE 228 OF OFFICIAL RECORDS, ORANGE COUNTY, A RADIAL LINE FROM SAID INTERSECTION BEARS SOUTH i;3 DEGREES 0'54" (NEST; THENCE ALONG THE NORTHEASTERLY, NORTHERLY, NORTHWESTERLY AND NORTHERLY IJNE OF SAID PARCEL 1, ARTICLE I), THROUGH THE FOLLOWING COURSES AND DISTANCES: NORTHWESTERLY ALONG A CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 13(11).00 FEET, THROUGH AN ANGLE OF 9 DEGREES 3V 54 ", A DISTANCE OF 2.18.16 FEET TO A LINT- TANGENT THERE -TO; THENCE NORTH 65 DEGREES 56' WEST, TANGENT TO SAID CURVE, 667.15 FEET TO THE BEGINNING: OF A CURVE TO THE LEFT; THENCE WESTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1301).00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 394.1)4 FEET; THENCE NORTH 83 DEGREES 18' WEST, TANGENT TO SAID CURVE, 646.66 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; THENCE WESTERLY ALONG A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 71)0.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 2.34 FEET TO A POINT IN A LINE PARALLEL WITH THE =.AID CENTER LINE OF THE SANTA A14A RIVER, AND 250.00 FEET DISTANIT EAST THEREFROM, MEASURED AT RIGHT ANGLES THERETO, A RADIAL LINE FROM SAID POINT BEARS PIORTH 6 DEGREES 53'29" EAST; THENCE NORTHERLY, NORTHWESTERLY AND SOUTHWESTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER, AND 250.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOVO IG COURSES AND DISTANCES: NORTH 1 DEGREE 38' 25" EAST 1144.77 FEET; NORTH 13 DEGREES 35' 40" WEST 729.87 FEET; NORTH 27 DEGREES 46' WEST 400.76 FEET; NORTH 45 DEGREES 20' 28" WEST 482.58 FEET; SOUTH 74 DEGREES 07' WEST 449.53 FEET; SOL ITH 51 DEGREES 48' WEST 237.37 FEET; SOUTH 20 DEGREES 06' 15" WEST 319.00 FEET TO A POINT IN A LINE PARALLEL WITH THE NORTHWESTERLY LINE OF TRACT NO. 772, AS SHOWN' ON A MAP RECORDED IN BOOK 23, PAGES 5 AND 6 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AND 250 FEET DISTANT WEST THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTHWESTERLY AND WESTERLY, PARALLEL WITH THE NORTHWESTERLY AND NORTHERLY LINE OF SAID TRACT NO. 772, AND 250.00 FEET DISTANT WESTERLY AND NORTHWESTERLY THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: SOUTH 29 DEGREES 06' WEST 256.16 FEET; SOUTH 42 DEGREES 0E. WEST 131.37 FEET; SOUTH 72 DEGREES 45' WEST 158.65 FEET; NORTH 88 DEGREES 25' WEST 16.51 FEET TO A POINT IN A LINE PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER AND 250.00 FEET DISTANT NORTHERLY THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE WESTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER AND 250.1111 FEET DISTANT NORTHERLY THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: NORTH 66 DEGREES 42'20" WEST 620.94 FEET; NORTH 78 DEGREES 02' WEST 504.69 FEET TO A POINT IN A LINE PARALLEL WITH THE NORTHERLY LINE OF BLOCK C, EL MORO TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 75 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AND 250.00 FEET DISTANT NORTHERLY THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE WESTERLY, PARALLEL WITH THE SAID NORTHERLY LINE OF BLOCK C, EL MORO TRACT, AND 250.00 FEET DISTANT NORTHERLY THEREFROM, PLEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: NORTH 60 DEGREES 52'34" WEST 120.39 FEET; NORTH 64 DEGREES (1650" WEST 216.59 FEET TO A POINT IN THE EASTERLY LINE OF THE EASEMENT FOR THE P'URP'OSE OF MAINTAINING A RIVER CHANNEL OVER A STRIP OF LAND 300 FEET WIDE, 114 FAVOR OF NEWBERT PROTECTION DISTRICT, AS DESCRIBED IN THE INTERLOCUTORY DECREE OF PARTITION DATED JULY 19, 1929, A CERTIFIED COPY OF WHICH 1 11•(166711 -00911 1021 &14.12.07;1 @1) WAS RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS, ORANGE COUNTY, SAID POINT BEING THE MOST NORTHWESTERLY CORNER OF SAID PARCEL 1, ARTICLE 11; THENCE SOUTH 13 DEGREES 25' WE ST AL014G SAID EASTERLY LINE OF THE RIVER CHANNEL, 2S6.114 FEET TO THE MOST SOUTHWESTERLY CORNER OF SAID PARCEL 1, ARTICLE 11; THENCE NORTH 64 DEGREES 06' 50" WEST ALONG THE NORTHERLY LINE 01= SAID BLOCK C OF EL MORO TRACT, 16.112 FEET TO AN INTERSECTION WITH THE NORTHEASTERLY LINE OF THE 1011-FOOT RIGHT OF WAY OF CALIFORNIA STATE HIGHWAY; THENCE NORTH 54 DEGREES 02' (NEST ALONG SAID HIGHWAY RIGHT OF WAY LINE, 145.48 FEET TO THE CENTER LINE 01: SAID 300 -FOOT RIVER CHANNEL EASEMENT; THENCE NORTH 13 DEGREES 25' EAST ALONG SAID CENTER LINE, 390.57 FEET TO THE NORTHEAST CORNER OF LAND DESCRIBED IN DEED DATED DECEMBER 30, 1929 FROM JOSEPH BANNING JR, AND OTHERS, To JAMES H. MACKLIN, RECORDED JANUARY 29, 1930 IN BOOK 3S6, PAGE 31 OF OFFICIAL RECORDS, ORANGE COUNTY; THENCE NORTH 74 DEGREES 17' (NEST 289.47 FEET TO A POINT IN THE SOUTHERLY EXTENSION OF THE WESTERLY BOUNDARY LINE OF SAID RANCHO SANTIAGO DE SANTA ANA, WHICH POINT IS ALSO THE NORTHWEST CORNER OF SAID LAND DESCRIBED IN SAID DEED RECORDED IN BOOK 356, PAGE 31 OF OFFICIAL RECORDS, ORANGE COUNT)'; THENCE NORTH 15 DEGREES 43' EAST ALONG THE -AID SOUTHERLY EXTENSION OF THE WESTERLY BOUNDARY LINE OF RAPIr_HO SANTIAGO DE SANTA ANA, 119.00 FEET TO THE POINT OF BEGINNING. EXCEPT ANY PORTION OR PORTIONS OF SAID ABOVE DESCRIBED LAND WHICH IS OR ARE NOT INCLUDED EITHER WITHIN; THE E>TERIOR BOUNDARIES OF THE RANCHO SAirnAGCI DE SANTA ANA, OR WITHIN THE EXTERIOR BOUNDARY LINES OF GOVERNMENT LOT 1, SECTION 19; GOVERNMENT LOT I, SECTION 20; AND GOVERNMENT LOT 1, SECTION 29, ALL IN TOWNSHIP 6 SOUTH, RANGE i0 WEST, SAP! BERNARDINO BASE AND MERIDIAN. ALSO EXCEPTING THEREFROM, THAT PORTIONS OF SAID LAND INCLUDED WrFHIN A STRIP OF LAND 180 FEET- WIDE, DESCRIBED AS PARCEL D3 -122.1 IN THE FINAL ORDER OF CONDEMNATION RENDERED JANUARY 26, 1962 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF GRANGE, IN THE ACTION ENTITLED "ORANGE COUNTY FLOOD CONTROL DISTRICT VS. CITY OF NEWPORT BEACH AND OTHERS' (CASE NO. 77399), A CERTIFIED COPY OF WHICH DECREE RECORDED JANUARY 20, 1962, BOOK 5993, PAGE 441, OFFICIAL RECORDS, ORANGE COUN-IY, CALIFORNIA. ALSO EXCEPTING THEREFROM THOSE PORTION`_. DESCRIBED AS PARCELS 100, 103, 106 AND 1118 IN'rHE NOTICE OF LIS PENDE.NS, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICE OF CALIFORNIA CASE 140. CV 91- 3991 -11-1, A CERTIFIED OF WHICH WAS RECORDED AUGUST 23, 1991 AS INSTRUMENT NCI. 91- 455338 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, WHICH INCLUDES A DECLARATION OF TAKING. ALSO EXCEPTING THEREFROM, THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERALS, INCLUDING, BUT NOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL GAS AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, IN OR LINDER, OR PRODUCIBLE FROM SAID LAND AT ANY DEPTH OR DEPTHS 6200 FEET OR MORE BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE FREE AND UNLIMITED RIGHT TO MINE, DRILL, BORE, OPERATE AND REMOVE FROM BENEATH THE SURFACE OF SAID LAND, AT ANY LEVEL OR LEVEIS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPMENT OR REMOVAL OF SAID RESERVE[) SUBSTANCES, AS RESERVED 114 THE DECD AND AGREEMENT FROM HANCOCK BANN114G JR. AND OTHERS, RECORDED DECEMBER 27, 1961 IN BOOK 5957, PAGE 665 OF OFFICIAL RECORDS, ORANGE COUNTY, SUBJECT TO CERTAIN LIMITATIONS AND CONTIPIGEPICIES CONTAINED IN SAID DEED. PARCEL 3: ::! or,675:.wnm Jut 18Lr:2:01W �? A STRIP OF LAND 251) FEET WIDE, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHERLY LINE OF BLOCK C OF EL MC ORO TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 75 OF MISCELLAd4EOU S MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AND THE EASTERLY UN1E OF THE EASEMENT FOR THE PURPOSE OF MAINTAINING A RIVER CHANNEL OVER A STRIP OF LAND 3110 FEET WIDE, 1N FAVOR OF NEWBERT PROTECTION DISTRICT, AS DESCRIBED IN -II-IE INTERLOCUTORY DECREE OF PARTITION DATED JULY 19, 1929, A CERTIFIED COPY OF WHICH WAS RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS; THENCE SOUII-I 64 DEGREES o(,'50" EAST, ALONG THE NORTHERLY LINE OF SAID EL MORO TRACT, 154.2,11 FEET; THENCE COIITINU]NG ALONG THE LAST MENTIONED NORTHERLY LINE, SOUTH 60 DECREES 52' 34" EAST 151.04 FELT TO A POINT IN THE SOUTHEASTERLY LINE OF SUMMIT STREET, 30.00 FEET 114 WIDTH, AS SHOV✓N ON THE MAP OF SAID EL MOJRO TRACT, SAID POINT BEING IN THE CENTER UNE OF THE SANTA ANA RIVER, AS SHOWN ON A MAP FILED IN AND ANNEXED TO THE COMPLAINT IN CASE OF 1. B. BANNING JR. VS. SMITH AND OTHERS, CASE NO. 22797 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR ORANGE COUNTY, A, COPY OF THE JUDGMENT OF SAID CASE NO. 22797 HAVING BEEN RECORDED JULY 19, 1929 IN BOOK 297, PACE 76 OF OFFICIAL RECORDS, ORANGE COUNTY; THENCE SOUTH 78 DECREES 02' EAST ALONG THE SAID CENTER LIKE OF THE SANTA ANA RIVER, 517.61 FEET; THENCE CONTINUING ALONG THE SAID CENTER LINE OF THE SANTA ANA RIVER, SOUTH 66 DEGREES 42'2o" EAST 644.09 FEET TO A POINT IN THE NORTHERLY LINE OF TRACT NO. 772, AS SHOWN ON A MAP RECORDED IN BOOK 2.3, PAGES 5 AND 6 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE EASTERLY AND NORTHEASTERLY ALONG THE NORTHERLY AND NORTHWESTERLY LINE, OF SAID TRACT NO.772, THE FOLLOWING COURSES AND DISTANCES: SOUTH 118 DEGREES 25' EAST 105.91 FEET; NORTH 72 DEGREES 45 EAST 268.62 FEET; NORTH 42 DEGREES 0C EAST 225.36 FEE 1 NORTH 29 DEGREES 06' EAST 306.31 FEET TO A POINT IN THE SAID CENTER LINE OF THE SANTA ANA RIVER; THENCE ALONG THE SAID CENTER U14E OF THE SANTA ANA RIVER, 111E FOLLOWING COURSES AND DISTANCES: NORTH 20 DEGREES 06' 15" EAST 267.71 FEET; NORTH 51 DEGREES 46' EAST 7.17.09 FEET; NORTH 74 DEGREES 07' EAST 254.30 FEET; SOUTH 45 DEGREES 20' 28" EAST 298.02 FEET; SOUTH 27 DECREES 46' EAST 333.04 FEET; SOUTH 13 DEGREES 35'41)" EAST 665.36 FEET; SOUTH I DEGREE 38' 25" WEST 1205.19 FEET; SOUTH 10 DEGREES 47' 30" EAST 116.85 FEET TO A POINT IN THE NORTHERLY LINE OF THE 1{10•FtOT RIGHT OF WAY OF THE CALIFORNIA STATE HIGHWAY, AS DESCRIBED IN DEED RECORDED APRIL 20, 1936 IN BOOK 822, PAGE 48 OF OFFICIAL RECORDS, ORANGE COUNTY, A RADIAL LINE FROM SAID POINT BEARS NORTH 19 DEGREES 2o'43" EAST; THENCE ALONG THE NORTHERLY AND NORTHEASTERLY LINE OF SAID CALIFORNIA STATE HIGHWAY, THE FOLLOWING COURSES AND DISTANCES: EASTERLY ALONG A CIJRVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 950.00 FEET, A DISTANCE OF 209.67 FEET; SOUTH 83 DEGREES I V EAST, TANGENT TO SAID CURVE, 646.66 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT, SOUTHEASTERLY ALONG A CARVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1050,00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 316.26 FEET; SOUTH 65 DEGREES 56' EAST, TANGENT TO SAID CURVE, 667.151 FEET TO THE BEGINNING OF A CURVE TO THE TIGHT, SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 11150.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 216.09 FEET; SOUTH 54 DEGREES 1)8' 30" EAST 387.05 FEET TO THE BEGINNING OF A CURVE TO THE LEFT, SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 950.00 FEET, A14D TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 264.46 FEET; SOUTH 70 DEGREES 0; 30" EAST, TANGENT TO SAID CURVE, 527.80 FEET TO THE SOUTHEASTERLY BOUNDARY LINE OF LOT D OF THE BANNING TRACT, AS SHOWN ON THE MAP ATTACHED TO THE REPORT OF THE REFEREES FILED APRIL 14, 1980 IN CASE NO. 6385 IN THE SUPERIOR COURT OF THE STATE I I!. 11667$1-Unvu !021x4.1.12:"17'16 12 OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, CALIFORNIA; THENCE LEAVING SAID CALIFORNIA STATE HIGHWAY, NORTH 39 DECREES 43'45" EAST, ALONG THE SOUTHEASTERLY BOUNDARY LINE OF SAID LOT D OF BANNING TRACT, 265.74 FEET TO A POINT, BEING 25u.00 FEET NORTH, MEASURED AT RIGHT ANGLES FROM THE NORTHEASTERLY LINE OF SAID 100 -FOOT RIGHT OF WAY OF THE CALIFORNIA STATE HIGHWAY; THENCE NORTH 70 DEGREES 163o" WEST, PARALLEL WITH THE NORTHEASTERLY LINE OF SAID STATE HIGHWAY, 49.03 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF THAT CERTAIN 2.7827 -ACRE PARCEL OF LAND AS DESCRIBED IN DEED FROM FARMERS AND MERCHANT; NAT1C INAL BANK OF LOS ANGELES, TRUSTEE FOR ANNE O. BANNING AND OTHERS, TO A.E.S. CHAFFEY AND OTHERS, RECORDED MARCH 14, 1958 IN BOOK 4228, PAGE 191 OF OFFICIAL RECORDS, ORANGE COUNTY, A RADIAL LINE FROM SAID POINT BEARS N(R'FI-I 26 DEGREES 30'42" WEST; THENCE ALONG THE BOUNDARY LINE OF THE LAST MENTIONED PARCEL OF LAND, THE FOLLOWING COURSES AND DISTANCES: SOUTHWESTERLY ALONG A CURVE CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 373.48 FEET, A DISTANCE OF 176.0 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL OF LAND, NORTH 5 DEGREES 44' 28" VEST 1114.32 FEET TO A POINT IN A LINE PARALLEL WITH THE NORTHEASTERLY LINE OF SAID STATE HIGHWAY, AND 25u.0u FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE NORTHWESTERLY, PARALLEL WITH THE SAID NORTHEASTERLY AND NORTHERLY LINE OF SAID STATE HIGHWAY, AND 250 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: NORTH 70 DEGREES (630" WEST 376.41 FEET TO THE BEGINNING OF A CURVE "TO THE RIGHT, NORTHWESTERLY ALONG A CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 7110.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE 01= 194.87 FEET; NORTH 54 DEGREES 08' 30" WEST, TANGENT TO SAID CURVE, 387.05 FEET TO THE BEGINNING OF A CURVE TO THE LEFT, NORTHWESTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1300.00 FEET, AND TANGENT TO THE LAST MEI;M(.*NED COURSE, A DISTANCE OF 267.55 FEET; NORTH 65 DECREES 56' WEST, TANGENT TO THE SAID CURVE, 667.15 FEET TO THE BEGINNING OF A CURVE TO THE LEFT, WESTERLY ALONG A CIJRVE CONCAVE TO THE SOIJTHWEST AND HAVING A RADIUS OF 13011,1111 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 394.04 FEET; THENCE NORTH 83 DEGREES 18' WEST, TANGENT TO SAID CURVE, 646.66 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT, WESTERLY ALONG A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 700.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 2.34 FEET TO A POINT IN A UNE PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER, AND 250,110 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, A RADIAL LINE FROM SAID POINT BEARS NORTH 6 DECREES 53' 29" EAST; THENCE NORTHERLY, NORTHWESTERLY AND SOUTHWESTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER, AND 250.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: NORTH ] DECREE 38' 25" EAST 1144.77 FEET; NORTH 13 DEGREES 35,41)" VEST 729.87 FEET; NORTH 27 DEGREES 4C! WEST 400.76 FEET; NORTH 45 DEGREES 20' 28" WEST 482.58 FEET; SOLITH 74 DEGREES 117' WE;1' 449.53 FEET; SOUTH 51 DEGREES 48' WES T 237.37 FEET; SOUTH 2u DEGREES 116'15" WEST 319.110 FEET TO A POINT IN A LINE PARALLEL WITH THE SAID NORTHWESTERLY LINE OF TRACT NO. 772, AND 250 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTHWESTERLY AND WESTERLY, PARALLEL WITH NORTHWESTERLY AND NORTHERLY LINE OF SAID TRACT NO. 772, AND 250.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: SOUTH 29 DECREES 06 WEST 258.16 FEET; SOUTH 42 DEGREES 06' WEST 131.37 FEET; SOUTH 72 DEGREES 45' WEST 158.65 FEET; NORTH 88 DEGREES 25' 141E ST 16.51 FEET TO A POINT IN A LINE PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER, AND 2SOM11 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE WESTERLY, PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER, AND 250,00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES 11 ). +V,n7plduwu u17,14'I? THERETO, THE FOLLOWING COURSES AND DISTANCES: NORTH 66 DEGREES ,12,2o" WEST 620.94 FEET; NORTH 78 DEGREES 02' WEST Su4,69 FEET TO A POINT IN A LINE PARALLEL WITH THE SAID NORTHERLY LINE OF BLOCK C, EL MC )R0 TRACT, AND 250.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES TFIERETO; THENCE WESTERLY, PARALLEL WITH THE SAID NORTHERLY LINE OF BLOCK C, EL MORO TRACT, AND 2511.1111 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: NORTH 60 DECREES 52'34" 14+ESf 1211.39 FEET, AND NORTH 64 DEGREES (IF,' 511" WES 1' 21659 FEET TO A POINT IN THE EASTERLY LINE OF SAID EASEMENT 3011,110 FEET WIDE, FOR PURPOSE OF MAINTAI I'll NG THE SANTA ANA RIVER CHANNEL; THENCE SOUTH 13 DEGREES 2-S' WEST ALONG SAID EASTERLY LINE OF THE RIVER CHANNEL, 256.114 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ANY PORTION THEREOF LYING GENERALLY SOUTHERLY OF THE AGREED BOUNDARY LINE DESCRIBED IN EXHIBIT "E" ATTACHED TO THAT CERTAIN SETTLEMENT AND BOUNDARY LINE AGREEMENT, STATE AND CITY DEEDS AND CORPORATION DEED REGARDING CERTAIN LANDS IN THE COUNTY OF ORANGE, CALIFORNIA, BLA. NO, 260 RECORDED AUGUST 3u, 1989 AS INSTRUMENT NO. 89. 466419 OF SAID OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM, THE PORTION OR PORTIONS OF SAID LAND WHICH IS OR ARE NOT INCLUDED EITHER WITHIN THE EXTERIOR BOUNDARIES OF THE RANCHO SAN -IIAGO DE SANTA ANA, THE PATENT FOR WHICH WAS RECORDED JUNE 28, 1884 IN BOOK 3, PAGE 387 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, AND AS ESTABLISHED BY SAID HEREINABOVE DESCRIBED SETTLEMENT AND BOUNDARY LINE AGREEMENT, OR WITHIN THE EXTERIOR BOUNDARIES OF LOT 1 OF SECTION 19, TOWNSHIP 6 SOUTH, RANGE 10 WEST; LOT 1 OF SECTION 20, TOWNSHIP E. SOUTH, RANGE 10 WEST; AND LOT 1 OF SECTION 29, TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN, THE PATENT FOR WHICH LOTS WAS RECORDED APRIL 19, 1893 IN BOOK 1, PAGE 66 OF PATENTS, RECORDS OF ORANGE COUNTY, CALIFORNIA, OR WITHIN ACCRETIONS OF SAID RANCHO OR SAID LOTS. ALSO EXCEPTING THEREFROM, THAT PORTION INCLUDED WITHIN THE PARCEL OF LAND DESCRIBED AS PARCEL D3- 122.1 IN 11iE FINAL ORDER OF CONDEMNATION RENDERED JANUARY 26, 1962 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF ORANGE, IN THE ACTION ENTITLED "ORANGE COUIM FLOOD CONTROL DISTRICT VS. CITY OF NEWPORT BEACH AND OTHERS" (CASE NO. 77399), A CERTIFIED COPT' OF WHICH FINAL ORDER WAS RECORDED JANUARY 30, 1962 IN BOOK 5993, PAGE 441 OF OFFICIAL RECORDS, ORANGE COUNTY. ALSO EXCEPTING THEREFROM, THE PORTION INCLUDED WITHIN 111E LANE) DESCRIBED IN DEED TO THE STATE OF CALIFORNIA RECORDED FEBRUARY 14, 1966 IN BOOK 7839, PAGE 739 OF OFFICIAL RECORDS, ORANGE COUNTY, ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED AS PARCEL 73170.1 IN THAT CERTAIN FINAL DECREE OF CONDEMNATION, SUPERIOR COURT CASE NO. 667539, A CERTIFIED COPT' OF WHICH WAS RECORDED JANUARY 14, 1994 AS INSTRUMENT NO. 94- 0032786 OF SAID OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED AS PARCELS 100, 103, 106 AND 1.08 IN THE NOTICE OF LIS PENDEN S, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 91- 3991 -I11, A CERTIFIED OF WHICH WAS RECORDED AUGUST 23, 1991 AS INSTRUMENT NO. 91- 455338 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, WHICH INCLUDES A DECLARATION OF TAKING. 112 ntl67t LAlwA 31121F-14,12 A17,16 12 9 AISO EXCEPTING THEREFROM THOSE PORTIONS CONVEYED TO ORANGE COUNTY SANITATION DISTRICT, A COUNFrY SANITATION DISTRICT ORGANIZED AND EXISTING PURSUANT TC I CALIFORNIA HEALTH AND SAFE``' CODE SECTIONS 47110 ET SEQ. AS DISCLOSED BY ON DOCUMENT RECORDED AUGUST 30, 2006 AS INSTRUMENT NO. 20060011582598 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM, AN UNDIVIDED 3o% INTEREST IN AND TO T-IE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINEWALS, INCLUDING, BUT NOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL GAS, AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED FROM SAID LAND LOCATED BELOW A DEPTH OF 6201) FEET, BUT WITHOUT THE_ RIGHT TO USE THE SURFACE OF SAID LAND DOWN TO A DEPTH OF Sim FEET, AS RESERVED IN THE DEED FROM HANCOCK BANNING JR. AND OTHERS, DATED AUGUST 1, 19SIt, RECORDED AUGUST 29, 1958 IN BOOK 4400, PAGE" S32 OF OFFICIAL RECORDS, ORANGE COUN'T`Y, AIJD RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PACE 228 OF OFFICIAL RECORDS, ORANGE COUNT', AS AMENDED BY THE DEED DATED NOVEMBER 29, 1961 FROM HANCOCK BANNING JR. AND OTHERS, RECORDED DECEMBER 27, 1961 IN BOOK 5957, PAGE 665 OF OFFICIAL RECORDS, ORANGE COUNT`'. ALSO EXCEPTINC, THEREFROM, AN UNDIVIDED 7uo'o INTEREST IN AND TO THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERALS, INCLUDING, BUT NOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL CAS, AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, IN OR UNDER, OR PRODUCIBLE FROM SAID LAND AT ANY DEPTH OR DEPTHS 6200 FEET OR MORE BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE FREE AND UNLIMITED RIGHT TO MINE, DRILL, BORE, OPERATE AND REMOVE FROM BENEATH THE SURFACE OF SAID LAND, AT ANY LEVEL OR LEVELS 51111 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPMENT OR REMOVAL OF SAID RESERVED SUBSTANCES, AS RESERVED IN THE DEED AND AGREEMENT FROM HANCOCK BANNING JR. AND OTHERS, RECORDED DECEMBER 27, 1961 IN BOOK 5957, PAGE 665 OF OFFICIAL RECORDS, ORANGE COUNTY, SUBJECT TO CERTAIN LIMITATIONS AND CONTINGENCIES CONTAINED IN SAID DEED. PARCEL 4: THOSE PORTIONS OF LOTS C AND D OF THE BA.NINING TRACT, AS SHOWN ON THE MdU' ATTACHED TO THE REPORT OF THE REFEREES FILED APRIL 14, 1890 IN CASE NO. 6365 IN THE SUPERIOR COLIRT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNT`' OF LOS ANGELES, BEING ALSO A POIZION OF LOT 1 OF TRACT N'0. 463, AS SHOWN ON A MAP RECORDED II'! BOOK 32, PAGES 2 AND 3 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNT, CALIFORNIA, AND A PORTION OF TRACT NO. 2250, AS SHOWN ON A MAP RECORDED IN BOOK 104, PAGES 6 AND 7 OF MISCELLANE(XIS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF TRACT NO. 15, AS SHOWN ON A MAP RECORDED IN BOOK 9, PAGE 19 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNT', CALIFORNIA, WHICH CORNER IS IN THE CENTER LINE OF SUPERIOR AVENUE, FORMERLY NEWPORT AVENUE, AS SAID NEWPORT AVENUE IS SHOWN Ohl SAID MAP OF TRACT NO. 15, AND ALSO IN THE SOUTHEASTERLY LINE OF SAID LOT D IN THE BANIJING TRACT; THENCE NORTH 29 DEGREES 24' 45" WEST ALONG THE NORTHEASTERLY L114E OF SAID TRACT NO. 15, AND ALONG THE SOUTHWESTERLY LINE OF FIRST ADDITION TO NEWPORT MESA TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 61 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, 3691.50 FEET TO A POINT IN THE EASTERLY LINE OF WHITTIER AVENUE, 60 FEET IN WIDTH, AS SHOWN ON SAID MAP OF FIRST ADDITION TO NEWPORT MESA TRACT; THENCE SOUTH 0 DEGREES 36'01" EAST ALONG THE SOUTHERLY 1121. 146731-10411 302IN 11 0., 07,0,12 PROLONGATION OF THE SAID EASTERLY LINE OF WHITHER AVENUE, SAID PROLONGATION BEING THE EASTERLY LINE OF PARCEL 1 AS DESCRIBED IN DEED EXECUTED BY HANCOCK BANNING JR. AND OTHERS, DATED AUGUST 1, 1958, RECORDED AUGUST 29, 1958 IN BOOT: 44OO, PAGE 57;2 OF OFFICIAL RECORDS, ORANGE COUNTY, AND RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PAGE 228 OF OFFICIAL RECORDS, ORANGE COUNTY, 3465.51 FEET, MORE OR LESS, TO AN INTERSECTION WITH A LINE ON A CURVE CONCAVE TO THE SOUTHWEST, 250,1111 FEET NORTHEASTERLY OF AND PARALLEL WITH THE NORTHEASTERLY LINE OF THE 100 -F-OOT RIGHT OF WAY OF THE CALIFORNIA STATE HIGHWAY, AS DESCRIBED IN DEED RECORDED APRIL 20, 1936 IN BOOT: 822, PAGE 48 OF OFFICIAL RECORDS, ORANGE COUNTY, A RADIAL LINE FROM SAID POINT OF INTERSECTION BEARS SOUTH 33 DEGREES 411' 54" WEST; THENCE SOUTHEASTERLY, PARALLEL WITH THE NORTHEASTERLY LINE OF SAID STATE HIGHWAY, AND 250,011 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND DISTANCES: THENICE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 1300.00 FEET, 49.39 FEET; THENCE SOUTH 54 DEGREES 118' 311" EAST, TANGENT TO SAID CURVE, 387.05 FEET TO BEGINNING OF CURVE TO THE LEFT; THENCE SOUTHEASTERLY ALOPIG A CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 7@I.00 FEET, AND TANGENT TO THE IAST MENTIONED COURSE, 194.87 FEET; THENCE SOUTH 70 DEGREES 05' 3O" FAST, TANGENT TO SAID CURVE, 376.41 FEET TO A POINT IN THE WESTERLY LINE OF THAT CERTAIN 2,7B27-ACRE PARCEL OF LAND AS DESCRIBED IN DEED FROM THE FARMERS AND MERCHANTS NATIONAL BANK OF LOS ANGELES, TRUSTEE FOR ANNE 0. BANNING AND OTHERS, TO A. E. S. CHAFFEY AND OTHERS, RECORDED MARCH 14, 1958 IN BOOK 4228, PAGE 191 OF OFFICIAL RECORDS, ORANGE COUNTY; THENCE ALONG THE WESTERLY, NORTHERLY AND NORTHEASTERLY BOUNDARY LINE OF SAID 2.7827 -ACRE PARCEL, THE FOLLOWING COURSES AND DISTANCES: NORTH 5 DEGREES 44' 28" WEST 160.43 FEET TO THE MOST WESTERLY CORNER OF SAID 2.7827 -ACRE PARCEL, FROM WHICH A RADIAL LINE BEARS NORTH 2O DEGREES 20' 15" WEST; THENCE NORTHEASTERLY ALONG A CURVE COPICAVE TO THE NORTHWEST, HAVING A RADIUS OF 450.00 FEET, 235.10 FEET; THENCE NORTH 39 DEGREES 43'45" FAST, TANGENT TO THE LAST MENTIONED CURVE, 75.42 FEET TO THE MOST NORTHERLY CORNER OF SAID 2.7827 -ACRE PARCEL, FROM WHICH A RADIAL LINE BEARS SOUTH 29 DEGREES 30' 33" WEST; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF- 730.00 FEET, A DISTANCE OF 130.21 FEET; THENCE SOUTH 50 DEGREES 16' 15" FAST, TANGENT TO THE LAST MENTIONED CURVE, 122.00 FEET TO A POINT IN THE NORTHWESTERLY LIME OF SUPERIOR AVENUE, (0 FEET IN WIDTH, FORMERLY NEWPORT AVENUE, AS SAID NEWPORT AVE14LIE IS SHOWN ON SAID MAP OF TRACT NO. 15, WHICH POINT BEARS NORTH 39 DEGREES 43'45" EAST 35.24 FEET FROM THE MOST EASTERLY CORNER OF LOT 1 IN BLOCK 1 OF SAID TRACT NO. 15; THENCE SOUTH SO DEGREES 16' 15" EAST 30,011 FEET TO THE CENTER LINE OF SAID SUPERIOR AVENUE; THENCE ALONG THE CENTER LINE OF SAID SUPERIOR AVENUE, NORTH 39 DEGREES 43'45" EAST 705.55 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM, THAT PORTION INCLUDED WITHIN THE FOLLOWING DESCRIBED LAND: THAT' PORTION OF BLOCK C OF THE BANNING TRACT, AS SHOWN ON A MAP ATTACHED TO THE REPORT OF THE REFEREES FILED APRIL 14, 1890 IN CASE NO. 6385 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, AND THAT PORTION OF LOTS 1111 AND 1112 AND PORTION OF SIXTEENTH STREET AND WHITTIER AVENUE ADJOINING, AS SHOWN ON THE MAP OF NEWPORT MESA TRACT RECORDED IN BOOK 5, PAGE 1 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE CENTER LINE OF SAID SIXTEENTH STREET WITH THE SOUTHWESTERLY BOUNDARY LINE OF FIRST ADDITION TO NEWPORT MESA TRACT, AS SHOWN ON A MAP RECORDED IN BOOK. 8, PAGE 61 OF MISCELLANEOUS MAPS, RECORDS OF 112 16475 IdN9lI 1n 2I F44.12 n07d W12 C (RANGE COUNTY, CALIFORNIA; THENCE SOUTH 89 DEGREES 21' Sn" WEST 16.50 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 5110.00 FEET; THENCE WESTERLY ALONG SAID CURVE, THROUGH AN ANGLE: OF 28 DEGREES 48'33", A DISTANCE 01= 251.41 FED- TO A LINE TANGENT; THENCE `_SOUTH till DEGREES 33' 17" WEST ALONG SAID LINE TANGENT, A DISTANCE 01:404.6o FEET; THENCE NORTH 29 DEGREES 26',13" WEST 804.50 FEET; THENCE NORTH 60 DEGREES 33' 17" EAST 300,00 FEET; THENCE SOUTH 88 DEGREE: 48'26" EAST 316.57 FEET TO A POINT IN A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 50.00 FEET, A RADIAL LINE FROP1 SAID POINT BEARS NORTH 89 DEGREES 21' 50" EAST; THENCE NORTHERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 44 DEGREES 24' 55 ", A DISTANCE OF 38.76 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 90.111 FEET; THENCE NORTHERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 44 DEGREES 24'5S", A DISTANCE- OF 69.77 FEET TO A LINE TANGENT; THENCE NORTH 0 DEGREES 38' 10" (NEST ALONG SAID LINE TANGENT, A DISTANCE OF 11.11 FEET TO THE SAID SOUTHWESTERLY BOUNDARY LINE OF FIRST ADDITION TO NEWPORT MESA TRACT; THENCE SOUTH 29 DEGREES 26'43" EAST ALONG SAID SOUTHWESTERLY ElO1.1NDARY LINE, A DISTANCE OF 789.32 FEF-T I -O THE POINT OF BEGINNING. ALSO EXCEPIING THEREFROM, THAT PORTION INCLUDED WITHIN THE FOLLOWING: THAT PORTION OF LOT 1 AND ALL OF LOT 2 OF TRACT NO. 463 AS SHOWN ON A MAP RECORDED IN BOOK 32, PAGES 2 AND 3 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOVVS: BEGINNING AT THE INTERSECTION OF THE CENTER LINE OF FIFTEENTH _STREET WITH THE CENTER LINE OF MONROVIA AVENUE, AS SHOWN OPI A MAP RECORDED IN BOOK 65, PAGES 31 THROUGH 36 INCLUSIVE OF RECORD OF SURVEYS 114 THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTH 0 DEGREES 37'24" EAST, ALONG THE CENTER LINE OF SAID MONROVIA AVENUE, 440.93 FEET TO THE NORTHEASTERLY RE LINE OF SAID TRACT NO. 463; THENCE NORTH 29 DEGES 26' 43" WEST ALONG SAID NORTHEASTERLY LINE, 272.61 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE SOUTH 29 DEGREES 2643" EAST ALONG SAID NORTHEASTERLY LINE, 1288.43 FEET TO THE CENTER LINE OF SUPERIOR AVENUE; THENCE SOUTH 39 DEGREES 41' 15" WEST, ALONG SAID CENTER L114E OF SUPERIOR AVENUE, 705.55 FEET; THENCE NORTH 50 DEGREES 18' 45" WEST, ALONG THE NORTHEASTERLY LINE OF THE LAND DESCRIBED IN A DEED TO A. E. S. C',HAFF-EY AND OTHERS, RECORDED IPl BOOK 4228, PAGE 191 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, AND THE SOUTHEASTERLY PROLONGATION THEREOF, 15200 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 7:111.1)(1 FEET; THENCE NORTHWESTERLY 1311.21 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 10 DEGREES 13' 12" TO A POINT IN THE NORTHEASTERLY LINE OF PARCEL 1, AS DESCRIBED IN A DEED RECORDED IN BOOK 7839, PAGE 739 OF OFFICIAL RECORDS OF SAID ORANIGE COUNTY; THENCE ALONG SAID NORTHEASTERLY LINE, NORTH 63 DEGREES 11'16" WEST 116!1.70 FEET TO A POINT IN A LINE PARALLEL WITH AND DISTANT 100110 FEET EASTERLY, AS MEASURED AT RIGHT ANGLES FROM THE WESTERLY LINE OF THE LAND DESCRIBED IN ANNE)',ATION NO. 54 TO THE CITY OF NEWPORT BEACH, DECEMBER 30, 1963; THENCE ALONG SAID PARALLEL LINE, NORT14 0 DEGREES 38' 10" WEST 734.93 FEET TO A LINE THAI- BEARS SOUTH 77 DEGREES 45' 00" WEST FROM THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID PARALLEL LINE, NORTH 77 DEGREES 45'00" EAST 1110.58 FEET TO THE TRUE POINT- OF BEGINNING OF THIS DESCRIPTION, ALSO EXCEPTING THEREFROM, THAT PORTION! INCLUDED WITHIN THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED FEBRUARY 14, 1966 114 BOOK 7839, PAGE 739 OF OFFICIAL RECORDS, ORANGE COUNTY. 11b"6675I.mrm 12 '.2 541,12 w.7! 11, 12 ALSO EXCEPTING THEREFROM, ANY PORTION INCLUDED WITHIN WHITTIER AVENUE AND SIXTEENTH STREET, AS SHOWN ON THE MAP OF NEWPORT MESA TRACT RECORDED IN BOOK 5, PAGE i OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. ALSO EXCEPTING THEREFROM THAI - PORTION INCLUDED IN THE LANE) DESCRIBED IN THE DEED TO THE CITY OF NEWPORT BEACH, RECORDED JUNE 6, 1995 AS INSTRUMENT NO. 95- 0237652 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM, THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERt-, INCLUDING, BUT NOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL GAS AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, IN OR UNDER, OR PRODUCIBLE FROM SAID LAND, AT ANY DEPTH OR DEPTHS 6200 FEET OR MORE BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE FREE AND UNLIMITED RIGHT TO MINE, DRILL, BORE, OPERATE AND REMOVE FROM BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL OR LEVELS Soo FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPMENT OR REMOVAL OF SAID RESERVED SUBSTANCES, AS RESERVED IN THE DEED AND AGREEMENT FROM HANCOCK BANNING JR. AI4D OTHERS, RECORDED DECEMBER 27, 1961 IN BOOK 5957, PAGE 665 OF OFFICIAL RECORDS, ORANGE COUNTY, SUBJECT TO CERTAIN LIMITATIONS AND CONTINGENCIES CONTAINED IN SAID DEED. ALSO EXCEPTING THEREFROM ALL THE MINERALS, INCLUDING WITHOUT LIMITATION ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN, Ohl OR UNDER THE HEREINAFTER DESCRIBED LAND LYING 500 VERTICAL FEET BELOW THE SURFACE OF SAID LAND WAS QUITCLAIM TO ARMSTRONG PETROLEUM CORPORATION, A CALIFORNIA CORPORATION BY AN INSTRUMENT RECORDED MAY 5, 1997 AS INSTRUMENT NO. 19970206789 OF OFFICIAL RECORDS. AP14: 114 - 170 -24, 114 - 170 -43, 114 - 170 -49, 114 - 170 -50, 114-1.7(1-52, 114 - 170 -56, 114 - 170 -72, 114-170-73,134-170-75, 114 - 170 -77, 114 - 1711-79, 114- 17(1-83 and 424- 041 -04 1 ib04675L01100 13 1111? 844.12 n07:Ie'12 I 1 N., EX H 1131T B DEPICTION OF PROPERTY `til( sl SITE MAP FUSCOIE EXHIBIT 1.1 : %POi1 Wm.u13 RSH. 11 JUNE. G, 2012 ..... _ . 112 U66751-001)1 EXI-111111'B-1 DEPIC110N OF COUNTY PROPERTY M I.S. COUNTY Of' ORANGE CITY or NEWPORT BEACH 1 12,1100 11 dgPm .11,21N 11,12 117 if, 12 S EXHIBIT 'R -1 JUNE 6, 2012 Ul I :,1 v II CJ II zf It FWCOE ........... t. III II JL S EXHIBIT 'R -1 JUNE 6, 2012 Ul I :,1 v II CJ II zf It FWCOE ........... TABLE OF CONTENTS Pate I. Definitions ............................................................................................ .............................it 2. General Provisions ........................................................................... ............................... 10 2.1 Plan Consistency, Zoning Implementation .......................... ............................... 10 2.2 Binding Effect of Agreement ............................................... ............................... 10 2.3 Landowner Representations and Warranties Regarding Ownership of the Properly and Related Matters Pertaining to this Agreement .............................. 10 2.4 Term ..................................................................................... ............................... 10 15 ................................................................................................ .............................12 3. Public Benefits ................................................................................. ............................... 13 3.1 Public Benefit Fee ................................................................ ............................... 13 3.2 Renegotiation of Public Benefit Fee if Development Plan Is Not Approved by California Coastal Commission ...................................... ............................... 14 3.3 Park Land Dedication and Improvements in Excess of Landowner's Quimby Act Requirement; City Option to Develop North and Central Community Parks; Possible Increase or Decrease in Public Benefit Pee........... 15 4. Development of Project ..................................................................... .............................21 4.1 Applicable Regulations; Landowner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals............................................................................... .............................21 4.2 No Conflicting Enactments .................................................... .............................22 4.3 Reservationsol' Authority ...................................................... .............................23 4.4 Tentative Subdivision Maps .................................................. .............................25 4.5 Responsibility for Processing Application for Coastal Development Permit; Costs .......................................................................... .............................26 4.6 Public Financing .................................................................... .............................26 5. Amendment or Cancellation of Agreement ....................................... .............................27 6. Enforcement ....................................................................................... .............................27 7. Annual Review of Landowner's Compliance With Agreement ........ .............................27 7.1 General ................................................................................... .............................27 7.2 Landowner Obligation to Demonstrate Good Faith Compliance .......................27 7.3 Procedure ............................................................................... .............................27 7.4 Annual Review a Non - Exclusive Means For Determining and Requiring Cure of Landowner's Default ................................................. ............................7.8 S. Events of Default ............................................................................... .............................28 8.1 General Provisions; Notice of Default and Cure Period; Judicial Reference for Resolution of Certain Disputes ........................................ .............................28 8.2 Default by Landowner ........................................................... .............................29 11_',IVm7s I- 1111911 3112 184-1.12.117' 1 W12 -tL A] (.iiy*, Option (n1\:rmiox|eAUrcuocn| ......... .............................. 8.4 Dol"'uIl|hyC"iiy ............................................. ................................ X. 5 YVoivec....-...,`^~~^--.-^'~.^..,.'^.'.~.,.., 83.6 S//njfirPork/nxxncc Remedy ...................................................... SJ K1m}ctxryDoo)"ycx ............................................... ....................... 8.8 Additional Oiy Remedy |hrLandowner's Default ............. ....... 8,9 N^Ptm000|Liabi|i(y"[Ci(y Officials, Employees, or Agents or Lxudov/um Members, Managers, Luly|"ycrx ur Agents ............. 9.10 Rtoovr/y^[Lv&x|Dx|`coscNkyProroi|ioSParty io Any Action. 9. Force kJ ,con:..,..--..- ....-...-..,..�| | Indemnity Obligations o[Lmx|vm\xr..........,..,.-...,..--.-.-.-'32 10.1 Indemnity Arising From Acts vr Omission o{LxnJvmmr................]2 102 Third PortyLih.go|im/ ......... ............................................. .............................. .32 ||. Assignment ............. ....................................................................................................... 13 12. Mortgagee Rights ............................................................................................................ j 12.1 Encumbrances no Property ................................................................................. ]5 122 Mortgagee Protection ................................................................................... ...... ]5 123 Mortgagee Not Obligated ................................................................................... l5 12.4 Notice of[)c|lao|iio Mortgagee; Right ul'Mo/gxgec(oCore .-.........-35 |l k4is"d|:ocnoz Terms ...................................................................................................... ]6 |l| Notice .. ....... ........................................................................................................ ]6 11.2 ProJect xsPrivoloUodoUxki/\y..............,.--.--.--,..,...')7 |]] Couocrn1ion-~...........-..........-..-.-..-..-.,.,..-.,]7 13.4 Estoppel [erhOcotu« ................................................................................ ...... ... 37 13.5 Rules o[[ons|n.o<ino ..................................................................................... ... 7 13.6 Time {so[ the Essomo ........................................................................................ 37 13.7 \YoiYcr.-.,---...--.^..-................`...-..`..,3S 13.8 Com\kn]x\Uo...^................,.,..,...-,..,-...........]8 119 Entire Agreement ................................................................................................ S |].\U %evtrubi|i{y ............................................ ............................................................ ]X |\|| Construction ................................................ -,.................................... ............ 8 |3.|2 Successors and /\ssi&ox� Constructive Notice and Acceptance ..................... 39 13.13 Nn11hin]Purly Beneficiaries .............................................................................. 39 !l|4 Applicable Law and Vunxo.,.......-........................,..]V 13.15 Section Heudi|Ygs ................................................................................................ ]9 |IlO Incorporation of'Ro:itx|smx{Eihihi|o ............................ .................................. 39 13.17 Recordation ......................................................................................................... 40 x}m*/x,p, - ii ^W/u«u*w^x2 '- STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2012 -17 was duly and regularly introduced on the 23rtl day of July, 2012, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 14 day of August, 2012, and that the same was so passed and adopted by the following vote, to wit: Ayes: Rosansky, Curry, Selich, Henn, Daigle, Mayor Gardner Noes: None Recuse: Hill IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 15th day of August, 2012. ak - �'rVt'V1 City Clerk City of Newport Beach, California (Seal) CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2012 -18 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: Introduced Ordinance: July 28, 2012 Adopted Ordinance: August 18, 2012 !� �L In witness whereof, I have hereunto subscribed my name this (X,'TI Kday of r I vt °Iv0U7 2012. U 44�4-hoi- City Clerk City of Newport Beach, California (Seal)