HomeMy WebLinkAbout03 - Newport Banning Ranch_PA2008-114�EW�Rr CITY OF
NEWPORT BEACH
"`tea P City Council Staff Report Agenda Item No. 3
August 14, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Brenda Wisneski, AICP, Deputy Director
949 - 644 -3297, bwisneski(o)newportbeachca.00v
PREPARED BY: Patrick J. Alford, Planning Manager
APPROVED: �. 0. Y-M
TITLE: Second Reading of Ordinances Related to the Newport Banning
Ranch Project, A Proposed 401 -acre Planned Community Generally
Located North of West Coast Highway, South of 19th Street, and
East of the Santa Ana River (PA2008 -114)
ABSTRACT:
An ordinance approving a Code Amendment rezoning and prezoning the Newport Banning
Ranch property and approving the Newport Banning Ranch Planned Community Development
Plan and an ordinance approving a Development Agreement between Newport Banning Ranch.
L.L.C. and the City.
RECOMMENDATION:
1. Conduct second reading and adopt Ordinance No. 2012 -16 approving Code
Amendment No. CA2008 -004 and Planned Community Development Plan
Amendment No. PC2008 -002 and finding that the California Environmental Quality Act
(CEQA) has been satisfied by the July 23, 2012, City Council certification of Newport
Banning Ranch Final Environmental Impact Report (SCH No. 2009031061); and
2. Conduct second reading and adopt Ordinance No. 2012 -17 approving Development
Agreement No.2008 -003 and finding that the California Environmental Quality Act
(CEQA) has been satisfied by the July 23, 2012, City Council certification of Newport
Banning Ranch Final Environmental Impact Report (SCH No. 2009031061).
FUNDING REQUIREMENTS:
There is no budgetary impact related to this item. However, approval would lead to the future
payment of a public benefit fee in the amount of $30,909 per residential dwelling unit
developed.
1
Newport Banning Ranch
Page 2
DISCUSSION:
Ordinance No. 2012 -16 and Ordinance No. 2012 -17 were considered and introduced at the
July 23, 2012, City Council meeting.
Ordinance No. 2012 -16 approves Code Amendment No. CA2008 -004 and Planned
Community Development Plan Amendment No. PC2008 -002. The Code Amendment rezones
the portion of the project site currently within the incorporated boundary of the City from
Planned Community (PC -25) to Planned Community (PC -57) and prezones those portions of
the project site located within the City's Sphere of Influence from County zoning to PC -57.
The Planned Community Development Plan establishes the allowable land uses, general
development regulations, and implementation and administrative procedures for the project
site.
Ordinance No. 2012 -17 approves Development Agreement No.2008 -003 between the
Newport Banning Ranch. L.L.C. and the City. The Development Agreement describes
development rights and public benefits to be provided by Newport Banning Ranch, L.L.C.
Additional Information
At the July 23, 2012, hearing, Mayor Gardner requested, and City Council approved by
motion and unanimous vote, modifications to include the following conditions:
1. The frequency of street sweeping of private streets and parking lots should be
the same as other areas of the City.
2. Prohibit the idling of construction vehicles and equipment.
3. To replace the approximately 97.57 acres of giant reed, cliff, ornamental,
disturbed, and disturbed /developed areas identified in the EIR with native plant
species.
4. Prohibit the homeowners association from planting invasive and exotic species
in areas adjacent to natural areas.
5. Require builders to install Energy Star - compliant appliances and systems.
The conditions of approval reflect the modifications approved by City Council.
Regarding Item No. 3, The Master Development Plan's Habitat Restoration Plan already
provides for the removal of non - native and invasive species and restoring natural processes
to such areas, including reintroducing native species. No new or revised conditions are
required.
Regarding Item No. 4, both the draft Habitat Restoration Plan and the Mitigation Monitoring
and Reporting Program provide against the planting of invasive species adjacent to natural
habitat areas. No new or revised conditions are required.
2
Newport Banning Ranch
Page 3
Regarding Item No. 5, the Green and Sustainable Plan, Mitigation Monitoring and Reporting
Program and Condition No. 78 address the use of energy- saving appliances, conditioning
systems, water heating, and lighting. No new or revised conditions are required.
Therefore, to address Item No. 1 and Item No. 2, Exhibit F (Conditions of Approval -
Tentative Tract Map No. 17308) of Resolution No. 2012 -60 will be revised as follows:
48. Prior to issuance of grading permits a list of "good housekeeping" practices, consistent
with the approved Water Quality Management Plan, shall be submitted by the
contractor for incorporation into the long -term post- construction operation of the site to
minimize the likelihood that pollutants would be used, stored, or spilled on the site that
could impair water quality. These may include frequent parking area vacuum truck
sweeping, removal of wastes or spills, limited use of harmful fertilizers or pesticides,
and the diversion of storm water away from potential sources of pollution (e.g., trash
receptacles and parking structures). The WQMP shall list and describe all structural
and non - structural BMPs. In addition the WQMP must also identify the entity
responsible for the long term inspection, maintenance, and funding for all structural
(and if applicable treatment - control) BMPs. The WQMP shall also provide that all
private streets and parking areas are required to be swept weekly. (SC 4.4 -5)
58q. No idling of construction vehicles or equipment shall be allowed. Construction vehicles
and equipment shall be properly operated and maintained and shall be turned off
immediately. Construction workers, equipment operators or truck drivers shall not
employ any form of audible signaling system during any phase of construction.
ENVIRONMENTAL REVIEW:
A Final Environmental Impact Report (EIR) SCH No. 2009031061 prepared to evaluate the
environmental impacts resulting from the Newport Banning Ranch project was certified by the
City Council on July 23, 2012. The Final EIR was been prepared in accordance with the
California Environmental Quality Act of 1970 (CEQA), as amended (Public Resources Code
Section 21000 et seq.), and the State CEQA Guidelines for Implementation of CEQA (California
Code of Regulations, Title 14, Section 15000 et seq.), and City Council Policy K -3.
i,r•-1 9rNnre's
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
3
Submitted by:
P, Deputy Director
Attachments: CC 1 Ordinance No. 2012 -16
CC 2 Ordinance No. 2012 -17
Newport Banning Ranch
Page 4
4
Attachment CC 1
Ordinance No. 2012 -16
5
ORDINANCE NO. 2012 -_
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH APPROVING CODE
AMENDMENT NO. CA2008 -004 TO REZONE THE
PORTION OF NEWPORT BANNING RANCH SITE
CURRENTLY WITHIN THE INCORPORATED
BOUNDARY OF THE CITY FROM PLANNED
COMMUNITY PC -25 TO PLANNED COMMUNITY PC-
57 AND PREZONE THOSE PORTIONS OF THE SITE
LOCATED WITHIN THE CITY'S SPHERE OF
INFLUENCE FROM COUNTY ZONING TO PC-57 AND
APPROVING PLANNED COMMUNITY
DEVELOPMENT PLAN NO. PC2008 -002 FOR THE
PROJECT SITE
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Newport Banning Ranch, LLC, with respect to a 401- 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 planned community for
development of 1,375 residential dwelling units, a 75 -room resort inn and ancillary
resort uses, 75,000 square feet of commercial uses, approximately 51.4 gross acres of
parklands, and the preservation of approximately gross 252.3 gross acres of
permanent open space ( "Project').
2. Approximately 40 acres of the Project is located in the City of Newport Beach, and
approximately 361 acres of the Project is located under the jurisdiction of the County of
Orange. The City intends to annex that portion of the subject property currently within
the County of Orange.
3. The subject property is located within the City of Newport Beach Planned Community
(PC -25) Zoning District and the County of Orange Zoning Suburban Mufti- 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.
4. The City of Newport Beach General Plan Land Use Element category is Open
Space/Residential Village (OS /RV).
5. The subject property is located within the coastal zone. The Coastal Land Use Plan
(CLOP) designates this property as a Deferred Certification Area; therefore, the policies
of the CLUP do not govem the development of the project site.
6. The Project includes a code amendment to rezone the portion of the project site
currently within the incorporated boundary of the City from Planned Community (PC-
IN
City Council Ordinance No. 2012 -_
Page 2 of 5
25) to Planned Community (PC -57) and prezone those portions of the project site
located within the City's Sphere of Influence from County zoning to PC -57.
7. The Project also includes a planned community development plan that would establish
the allowable land uses, general development regulations, and implementation and
administrative procedures, which would serve as zoning for the Project site.
8. The Planning Commission held study sessions on the Project 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.
9. The Planning Commission held public hearings on the Project on March 22, 2012, April
19, 2012, and June 21, 2012, in the City Hall Council Chambers, 3300 Newport
Boulevard, Newport Beach, Califomia. A notice of time, place and purpose of these
meetings was given in accordance with the Newport Beach Municipal Code and
Government Code Sections 65090 and 65091. Evidence, both written and oral, was
presented to, and considered by, the Planning Commission at this meeting.
10. At the June 21, 2012, public hearing with a vote of 6 -0, the Planning Commission
adopted Resolution No. 2012 -1880, recommending to the City Council approval of
Code Amendment CA2008 -004 and Planned Community Development Plan No. 2008-
002.
11. The City Council held a public hearing on the Project on July 23, 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 City Council at this meeting.
SECTION 2. FINDINGS.
1. Code amendments are legislative acts. Neither the City nor State Planning Law set
forth any required findings for either approval or denial of such amendments.
2. The proposed Planning Community (PC -57) District and Newport Banning Ranch
Planned Community Development Plan (NBR -PC) are consistent with the City's
General Plan, including General Plan Land Use Element Open Space /Residential
Village (OS /RV) designation, which permits the development of a planned residential
community that integrates a mix of single - family detached, single - family attached, two
family, and /or multi - family residential, with supporting schools, parks, community
services, local- serving convenience commercial uses and services, and open spaces.
The NBR -PC requires a City- approved master development plan to depict the uses,
street and infrastructure improvements, open spaces, development standards, design
guidelines, and financial plan.
7
City Council Ordinance No. 2012 -_
Page 3 6i5
3. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Goal LU 6.4 as the development plan provides for a residential community with
supporting uses that provide revenue to restore and protect important habitats.
4. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policy LU 6.5.1, LU 6.5.2, and LU 6.5.3 as the development plan provides for the
consolidation of the existing oil operations into two areas totaling approximately 16.5
acres, approximately 18 acres or community parkland, and a habitat restoration plan
describing habitat areas and methods or plans for habitat preservation and restoration.
5. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policy LU 6.4.2, LU 6.4.3, and LU 6.4.4 as the development plan allows a mix of up to
1,375 single - family and multi - family dwelling units; up to 75,000 square feet of
neighborhood retail uses; and visitor accommodations with up to 75 guest rooms.
6. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policies LU 6.4.5, LU 6.4.6, and LU 6.4.7 as the development plan provides
community cohesion and neighborhood identity; a system of local residential streets
with the villages and colonies connected by arterials; a system of trails linking
residential, mixed -use, resort, parkland, and open space areas; and protection of
bluffs, arroyos, and other significant landforms.
7. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policy LU 6.4.8 as the development plan provides for a 252.3- acre -open space
preserve, 21 acres of bluff top parks, and approximately 18 acres of community
parkland.
8. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policy LU 6.4.9 as the development plan provides a roadway plan linking Coast
Highway with Newport Boulevard to relieve congestion at Superior Avenue.
9. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policy LU 6.4.10 as the development plan provides for a mix of uses and housing
opportunities and a sustainable and green community that provides the benefits of
promoting energy efficiency and resource conservation that will combine to reduce
greenhouse gas emissions.
10. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policy LU 6.4.11 as the development plan requires a City- approved master
development plan to depict the uses, street and infrastructure improvements, open
spaces, development standards, design guidelines, processes for oil operations
consolidation, habitat preservation and restoration plan, sustainability practices plan,
and financial plan.
11. The proposed PC -57 District and the NBR -PC are consistent with Land Use Element
Policy LU 6.5.1, LU 6.5.2, and LU 6.5.3 as the development plan provides for the
consolidation of the existing oil operations into two areas totaling approximately 16.5
2
City Council Ordinance No. 2012 -_
Page 4 o? 5
acres, the abandonment, closing, and remediation of the oil operation sites,
approximately 18 acres or community parkland, and a habitat restoration plan
describing habitat areas and methods or plans for habitat preservation and restoration.
12. 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 -xxxx, the City Council, having final approval
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 was adopted and incorporated herein by
reference.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
Planned Community Development Plan PC2008 -002 is hereby approved as contained in
Exhibit A, attached hereto and incorporated by reference.
2. Code Amendment CA2008 -004 is hereby approved.
3. The portion of the subject property currently located within unincorporated Orange
County and within the City's Sphere of Influence shall be prezoned to Planned
Community (PC -57).
4. The Zoning Map shall be amended as provided in Exhibit B attached hereto and
incorporated by reference to change the zoning district of the subject property legally
described in Exhibit C, attached hereto and incorporated by reference, from PC -25 and
the County of Orange Zoning Suburban Mufti- 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 to PC-57 with all other provisions of the existing
Zoning Map remaining unchanged.
5. 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.
6. The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The
City Clerk shall cause the same to be published once in the official newspaper of the
City, and it shall not become effective until:
I
City Council Ordinance No. 2012 -_
Pape 5 of 5
a. The California Coastal Commission approves a coastal development permit for
the Project; and
b. The Orange County Transportation Authority Board of Directors approves the
associated amendment to the Master Plan of Arterial Highways and subsequent
action is taken to adopt the amendment by the City Council; and
The effective date of the annexation to the City of those portions of the Project site
currently under the jurisdiction of the County.
PASSED, APPROVED, AND ADOPTED this 23rd day of July 2012.
MAYOR
ATTEST:
CITY CLERK
APP ED AS TO FORM,
F rcEq THE I/TI'ATTORNEY
CITY CLERK 1
Aaron Harp, City Attorney
for the City of Newport Beach
10
Exhibit A
Newport Banning Ranch
Planned Community Development Plan
Exhibit A is available for review at the offices of the Office of the City Clerk or at
www. newportbeachca.gov.
11
Exhibit A
NBR Planned Community Development Plan Revisions and Errata
Page 2 -2
Revise Section 2.2.1.3 as follows:
2.2.1 Planned Community Districts
3. Visitor- Serving Resort/Residential District, to allow for a maximum 75 -room resort inn to
include ancillary uses such as restaurants, and baFs spas, fitness centers, meeting and banquet
facilities, retail shops, and other similar complementary visitor - serving commercial uses or free
standing visitor serving retail uses without a resort inn component. Bars and cocktail lounges
shall be permitted in the Visitor Serving Resort/Residential District only when ancillary to a
restaurant, inn, or hotel. This district also allows for resort- oriented residential units of up to 40.0
dwelling units per gross acre if developed in conjunction with the resort inn. In the event a
resort inn is not developed this land use district allows the development of residential land uses
of up to 9.0 dwelling units per gross acre within the entire district, with or without visitor - serving
commercial uses or visitor serving commercial uses alone.
5. Mixed - Use /Residential District, to allow for the mixed use development of residential
uses of up to 40.0 dwelling units per gross acre and a maximum of 75,000 square feet of
neighborhood serving commercial uses as vertical mixed use with commercial uses on the
ground floor and residential above, or as horizontal mixed use with commercial uses and
residential uses in separate buildings designed as a cohesive and unified development. The
residential component of mixed use development may include residential single family attached
or multi - family residential dwelling units and ancillary private recreational facilities to serve the
residents of the development. The neighborhood serving commercial component of mixed use
development may include a grocery market (s), restaurants, personal services, and professional
offices. Other allowable uses in the Mixed Use /Residential District include hotels and inns
which could include a restaurant. Bars and cocktail lounges shall be permitted only when
ancillary to a restaurant, inn, or hotel.
Page 2 -4
Change the acreage assigned to Community Park as follows:
2.4.1 Community Park District (CP)
Approximately 26.8 gross acres designated as CP shall be developed as a public Community
Park as part of the Project. Approximately 21.8 gross acres of the CP district comprising the
public Community Park shall be offered for dedication to the City to serve the active recreational
needs of the Project residents and the community at large. The remaining approximately 5.0
gross acres of the CP district comprising the public Community Park shall be privately
maintained by the Proiect and made permanently available for public use through a deed
restriction and /or recorded public easement.
Page 2 -5
Add the following text to Section 2.5, Visitor Serving Resort /Residential District (VSR/R), first
paragraph as follows:
12
The purpose of the Visitor - Serving Resort/Residential District is to designate approximately
11.3 gross acres to allow for development of a resort inn and resort oriented residential uses
within the NBR -PC. In the event a resort inn is not developed in this land use district Pursuant
to NBR -PC Sections 4.4.4 "Findings for Approval of a Master Development Plan," or 4.5.3 (Site
Develooment Review) "Application Review." the NBR -PC allows for development of residential
uses and /or visitor serving commercial uses within the land use district subiect to the provisions
of NBR -PC Section 4.18.b. "Transfer of Residential Dwelling Units."
Page 2 -5
Revise Section 2.5.1 as follows:
2-1. Resort Inn and Resort Oriented Residential Uses
A resort inn efup to with a maximum of 75 overnight accommodations (guest rooms) with a
lobby and related guest areas, along with support commercial uses ancillary to a resort, such
as, restaurant(s), aad t3aFS gift and sundry shops, business center(s), fitness center(s),
spa /salon /treatment rooms, swimming pools and recreation facilities, banquet and meeting
rooms, areas for food and beverage preparation, administrative offices, housekeeping areas,
maintenance areas, and employee facilities. Ancillary commercial uses are those uses
customary and proportional to the resort. ` iSiteF GePdfiRg Commercial uses iasleded as paFt a
ancillary to resort inn development shall not be counted as part of the maximum 75,000 square
feet of commercial area permitted within the NBR -PC.
Page 2 -5
Add the following text to Section 2.5.3 referencing the NBR -PC provisions for transfer of
residential dwelling units into the VSR /R district as follows:
2. Residential Uses
U94e In the event a resort inn is not developed in the VSR/R district, pursuant to NBR -PC
Sections 4.4.4 "Findings for Approval of a Master Development Plan." or 4.5.3 (Site
Development Review) "Application Review," development of a maximum of 100 conventionally -
owned residential dwelling units is allowed pursuant to the provisions Section 4.18, "Transfer of
Residential Dwelling Units." of the NBR -PC., ^ the ° °^` ° F86AFt O^ ^^+ GIRVP'^^°d OR the
Pico Gt These residential dwelling units shall be counted as part of the maximum 1,375
residential dwelling units permitted within the NBR -PC. An application for Site Development
Review for residential development within the entire VSR /R district shall not be permitted to be
submitted any earlier than two years from the effective date of an approved Development
Agreement for the Project Site.
Page 2 -5
Add the following text to Section 2.5.4 referencing the NBR -PC provisions allowing for transfer
of visitor serving commercial uses to the VSR /R district and-delete clari "bars" as a visitor
serving commercial use:
3. Visitor Serving Commercial Uses
In the event a resort inn is not developed in the VSR /R district pursuant to NBR -PC Sections
4.4.4 "Findings for Approval of a Master Development Plan," or 4.5.3 (Site Development
Review) "Application Review, ", development of visitor - serving commercial uses independent of
a resort use inn sash as, to include but not limited to restaurant(s)- and bars, gift and sundry
13
shops, business centers, fitness centers, spas and salons, swimming pools and recreation
facilities and similar uses are permitted subject to the provisions of Section 4.19, "Transfer of
Commercial Area from MU /R District to VSR /R District." of the NBR -PC. Bar and cocktail
lounges shall- be permitted only when ancillary to a restaurant. Thies All visitor serving
commercial use developed independently of a resort inn shall be counted as part of the
maximum 75,000 square feet of commercial area permitted within the NBR -PC.
Page 3 -1, Add the following text to the last sentence of the second paragraph of Section 3.2.1,
"Oil Operations," as follows:
All surface oil production facilities located in areas outside of the OF District in existence after
the effective date of the NBR -PC shall be legal non - conforming structures, aad subject to NBMC
Chapter 20.38, "Nonconforming Uses and Structures," and s bjeGt solely to the provisions of
NBMG Sections 20.38.010 through 20.38.050 of Chapter 38 and may continue for a
maximum period of ten years following completion of annexation of the unincorporated County
areas of the Project Site to the City .
Page 3 -3
Add the following requirement:
Retaining walls over 8 feet in height shall incorporate strategies to visually soften and /or
minimize their appearance from public views. Strategies for visual softening may include the
use of stepped retaining walls, the use of crib walls, and /or landscape screening.
Page 3 -4
Delete the following text from Section 3.3 Landscape Regulations:
iFF i.ML.^ .J^^^ . ithiR the Preje Gt 9 to shall be subje Gt tG ^ ,al ^f ^ 9 t fleyelr...meRt
Review h %u swa^tr.t W SeGtivan 4.5 of th° NBR -Pr, ^c t° Develep^.ent Review
Page 3 -12
Revise Section 3.9.7, "Legal Non - Conforming Uses, "as follows:
3.9.7 Legal Non - Conforming Uses
Any use within the Project Site lawfully existing at the time of the effective date of the NBR -PC
including, without limitation, surface and subsurface oil and natural gas production operations,
maintenance and operation of existing easements and pipelines, surface leases for storage
yards, and other oil- related buildings, structures, and maintenance areas shall be considered
legal non - conforming uses and may be continued subject to NBMC Chapter 20.38.010 through
20.38.050, "Nonconforming Uses and Structures," for up to ten years following the completion of
annexation of areas located in the unincorporated County to the City, notwithstanding any
omission of a particular such use in Table 3 -1, "Allowable Uses. "' °^°' ^^^ ^ ^ ^f^ ^ I^^ 61686 ^F°
Pages 3 -14 and 3 -15
Revise Table 3 -1, Allowable Uses as follows:
1. Delete Bars and Nightclubs
14
2. Add Bars and cocktail lounges when ancillary to a hotel, resort inn, or restaurant as
conditionally permitted in VSR/R and MU /R.
3. Delete Breweries, micro .
4. Delete Residential Care Facilities 6 or fewer unlicensed as a conditionally permitted use
in the RL, RUM and RM districts.
5. Delete "Eating and drinking establishments sit down dining" and "Eating and drinking
establishments, sit down dining no alcohol service ".
6. Add `Restaurants with alcoholic beverage service and /or live entertainment' as
conditionally permitted.
7. Add "Restaurants" as permitted.
Page 4 -5
Revise Section 4.4.6, 'Requirement for Site Development Review" as follows:
4.4.6 Development Activities Pursuant to Approved MDP and Recordation of Final Ma
4.4.6.1 Activities Subiect to Communitv Park Improvement Plan ADDroval
The following development activities are permitted pursuant to approval of the MDP for the
Project Site, subject to recordation of a final subdivision map, approval of a Community Park
Improvement Plan, and approval of all required permits from local. State (including Coastal
Commission), and Federal agencies:
1. Construction of public park and recreational facilities in the CP district that are to be
offered for dedication to the City.
15
4.4.6.2 Activities Subiect to Site Development Review Approval
The following development activities are permitted pursuant to approval of the MDP for the
Project Site subject to recordation of a final subdivision map, City approval of Site Development
Review, as described in Section 4.5, "Site Development Review," of the NBR -PC, , and
approval of all required permits from local, State (including Coastal Commission), and Federal
agencies:
1. Development of land uses within the Residential Districts, Visitor Serving Resort and
Residential District, Mixed Use and Residential District, .
Bluff Park District, Interpretive Park District, and areas of the Community Park District
not offered for public dedication.
Page 4 -7
Add a new Section 4.6, Community Park Improvement Plan, and renumber subsequent sections
accordingly.
4.6 Community Park Improvement Plan
4.6.1 Purpose and Intent
The purpose of a Community Park Improvement Plan is to provide for the review of specific
park design prior to construction of public park and recreational facilities within areas of the
CP district that are to be offered for public dedication.
1-0
4.6.2 Apolicabilit
Approval by the City of a Community Park Improvement Plan is required as described in
Section 4.4.6 "Development Activities pursuant to Approved MDP and Recordation of Final
Map" prior to any construction activity within the portion of the CP District to be offered for
dedication to the City.
4.6.3 Review and Approval
A Community Park Improvement Plan shall include, a comprehensive site plan for the
community park, floor plans and elevations for any community facility buildings and
restrooms, landscape and irrigation plans, lighting plans, plans for play fields and passive
recreation areas, parking layout, and other public facilities to be located within the
Community Park, grading plans, infrastructure improvement plans, and any other
information deemed necessary for review by the Director of Recreation and Senior
Services. The Community Park Improvement Plan shall be reviewed and approved by the
Director of Recreation and Senior Services.
Page 4 -8
Revise the last paragraph in Section 4.8 "Coastal Development Permit," as follows:
When any CDP(s) or MCDP is approved by the Coastal Commission that varies from the
approval granted by the City for the same application, said rno(e) er MG-QP shall he
FPI;'-'bM an,1 re •8d by the City app! . the applicant shall submit a request RGW
for determination of substantial conformance to the Director. The Director has the authority to
refer any request for substantial conformance to the City Council for consideration and final
action on the request.
Page 4 11
Revise 53ectaen o n.9, Subdi isien Maps," te add the fe',lo•WiRg text:
RR betel miler . Fi«er a me.1e «�..,, .dtbin «he �icoio ni�trie« ,,,.« be ., •e,1
witheut first adentine of ene of the fG'19 dne three f R d{....o•
1 . A r er« in hotel OF filar .d er AGgAMMAC12tmAR hoc heen RADFAVRd for rle..elenmen«
iR ..{ «her the VCR /R- nis «ris« or the nAl uo nis«ris«• ..
3 An 1...19..9... eRt feasihili «.• analysis n red by a n•Je ne erlen4 GGRG „IM n« seleete.J h..
«he nireeter of (Arum, inity nevelen.nent and paid for b.. «he a nlisan« n.lisa «es «ha« the
deyelenmen« of A 75 reAFn rpsnO iRR, he «el eF similar . siter a e.1a «inn e«
L.viable takine in «e a nt a GR8 eF all of the fellOWiRq i.1en «ifiable fan «em
1 \ eGE)ROMiG. 21 a ental 21 s al nrl /er 1\ nhaisal sites restrain «s
Page 4 -14 through 4 -17
Delete Section 4.16," Land Use Acreage Refinement, Transfer of Residential Dwelling Units,
and Transfer of Commercial Area," Delete Section 4.17, "Minor Modifications," as follows
1-7
Gi �L' fLf TLT. T. S7T1 :�Tl7.T.SlT'TJ�1[�I:'Z7JfILTd7 STS- T.{/ TS- fi: CF.f 9{ i7TT .T.7Tl�- T.SSLLKIAfI�{7:T'iT.SL7
._
_ .
i
Page 4 -14
Add a new Section 4.17, "Substantial Conformance," as follows:
4.17 Substantial Conformance
Changes in the Land Use District boundary lines as illustrated on Exhibit 2 -1, "Planned
Community Development Plan," and a corresponding change in the Gross Acres for the
respective Land Use District as described on Exhibit 2 -2, "Planned Community Development
i9
Table," as part of the approval of either a Master Development Plan, Site Development Review,
or subdivision map application submitted for the Project Site, is considered to be in substantial
conformance with the NBR -PC provided the change complies with the following:
1. Any resulting increase in gross acres or gross density is no more than fifteen percent
(15 %) of the land use district for which the change is requested:
2. There is no resulting reduction in the total area designated as Open Space District;
3. There is no resulting reduction in the total area allocated to the Public Parks /Recreation
District: and
4. The total area within the Project Site boundary does not exceed 401.1 gross acres.
Page 4 -15
Add a new Section 4.18, "Transfer of Residential Dwelling Units," as follows:
4.18 Transfer of Residential Dwelling Units
4.18.1 General Requirements
A request for a change in the planned number of residential dwelling units for any Land Use
District as described on Exhibit 2 -2. "Planned Community Development Table." resulting from a
transfer of residential dwelling units from one Residential Land Use District to another, may be
approved as part of the review of either a Master Development Plan, Site Development Review,
or subdivision map application submitted for the Project Site, provided the requested change
complies with the following:
1. The requested transfer does not result in an increase of more than fifteen percent (15 %) in
the total number of planned dwelling units described on Exhibit 2 -2, "Planned Community
Development Table." for the Land Use District receiving additional dwelling units:
2. The total number of dwelling units for the Project Site does not exceed 1.375:
3. All dwelling units planned within the Land Use District can be developed pursuant to the
applicable development regulations established in NBR -PC Chapter 3. "Land Use and
Development Regulations," for the residential land use planned for development:
4. A traffic analysis performed by the City's Traffic Engineer evaluating the total number of PM
peak hour trips that would be generated by development allowed with and without the
transfer concludes that there would not be any greater traffic impact generated as a result
of the transfer than would be generated without the transfer. Trip generation rates shall be
based on standard trip generation values in the current version of ITE's "Trip Generation,"
unless the Traffic Engineer determines that other rates are more valid for the uses involved
in the transfer.
5. The total number of dwelling units within the MU /R Land Use District does not exceed 730;
6. A corresponding subdivision map is approved by the City if the transfer results in a change
to any previously approved subdivision map.
20
4.18.32 Review Requirements
1. A request to transfer residential dwelling units shall be subject to the following requirements:
a. The request for a transfer of residential dwelling units from one land use district to
another shall be submitted as part of an application for approval of either a Master
Development Plan for the Proiect Site or as part of an application for approval of a
subdivision map or a Site Development Review:
b. The request for a transfer of residential dwelling units from one land use district to
another shall be accompanied by a revised Planned Community Development Table
reflecting the proposed changes and any additional background and /or supporting
information as determined necessary by the Director. Unless determined otherwise by
the City, the revised NBR -PC document shall serve as the reference document for any
future revisions to Exhibit 2 -1, "Planned Community Development Plan," and Exhibit 2 -2,
"Planned Community Development Table," as they may be approved from time to time.
Such revisions shall be located in an appendix to the NBR -PC.
Page 4 -16
Add a new Section 4.19, "Transfer of Commercial Area from MU /R to VSR/R," as follows:
4.19 Transfer of Commercial Area from MU /R District to VSR/R District
4.19.1 General Requirements
In the event a resort inn is not developed in the VSR /R District, a request to transfer a portion of
the total commercial area as described in Exhibit 2 -2, "Planned Community Development
Table," from the MU /R District to the VSR /R District for development of ancillary visitor - serving
commercial uses such as restaurants visitor and tourist oriented retail shops, a fitness facility, a
full service health spa, park and recreation facilities, and similar uses may be approved as part
of the review of either a Master Development Plan, Site Development Review, or subdivision
map application submitted for the Project Site. provided:
The total area of commercial uses developed within the Project Site does not exceed
75,000 square feet.
2. A traffic analysis performed by the City's Traffic Engineer evaluating the total number of PM
peak hour trips that would be generated by development allowed with and without the
transfer concludes that there would not be any greater traffic impact generated as a result
of the transfer than would be generated without the transfer. Trip generation rates shall be
based on standard trip generation values in the current version of ITE's "Trip Generation,"
unless the Traffic Engineer determines that other rates are more valid for the uses involved
21
in the transfer. The visitor serving commercial uses can be developed pursuant to the
applicable development regulations established in NBR -PC Chapter 3. "Land Use and
Development Regulations." for commercial development within in the VSR /R land use
district.
3. All commercial uses planned for development within the VSR/R district can be developed
pursuant to the applicable development regulations established in NBR -PC Chapter 3,
"Land Use and Development Regulations." for the type of commercial use planned for
development.
A +9 O Requope.v.Al#g T.aRgfep pf `.....x.......7..1 n.g., to thg veoio nbg+.,..+
tfp veoio 911* *. 9f iQ P R+ +, ,.. . . , .. �C n n n .,. niQO ors
SeGfien 4.5.3. as
4.1942 Review Requirements
A request for transfer of commercial square footage from the MU /R District to the VSR /R District
shall be subject to the following requirements.
a. The request shall be submitted as part of an application for approval of either a Master
Development Plan for the Project Site or as part of an application for approval of a
subdivision map or a Site Development Review:
approved from time to time. Such revisions shall be located in an appendix to the NBR -
PC.
Page 4 -17
Add a new Section 4.20, `Transfer of Commercial Area from MU /R District to RUM or RM
District," as follows:
4.20 Transfer of Commercial Area from MU /R District to RUM or RM District
A request to transfer a maximum of 2.500 sauare feet of commercial square footage to either
the RUM or RM district may be approved as part of the review of a Site Development Review or
subdivision map application submitted for the Proiect Site, in accordance with the following
provisions:
1. The requested transfer is for the development of convenience commercial uses to serve
the residential community.
2. Approval of the requested transfer of square footage to either the RUM or RM district is
a one -time allowable transfer and no additional transfers may be approved for any other
residential district.
22
3. The total area of commercial uses developed within the Proiect Site does not exceed
75,000 square feet.
4. The commercial uses planned for development within either the RUM or RM district
can be developed pursuant to the applicable development regulations established in
Section 3.14, "Commercial Regulations," of the NBR -PC.
A request for transfer of commercial square footage from the MU /R District to the RUM or RM
District shall be subject to the following requirements.
a. The request shall be submitted as part of an application for approval of either a
subdivision map or a Site Development Review.
b. The request shall be accompanied by a revised Planned Community Development
future revisions to Exhibit 2 -1, "Planned Community Development Plan." and Exhibit 2 -2.
"Planned Community Development Table." as they may be approved from time to time.
Such revisions shall be located in an appendix to the NBR -PC.
Page 4 -17, Renumber Section 4 -18 to Section 4 -20 and revise text as follows:
4.48 20 Amendments
All proposed changes to the NBR -PC other than those identified in Section 4.17,�v ' ^ "nn' ^e
Medi#isaiien 4.18. "Transfer of Residential Dwelling Units. Section 4.19. "Transfer of
Commercial Area from MU /R to VSR /R District," and /or Section 4.20 "Transfer of Commercial
Area from MU /R to RUM or R/M District," of the NBR -PC, or as otherwise provided for within the
NBR -PC, shall be considered amendments to the NBR -PC and shall be reviewed pursuant to
the provisions of NBMC Chapter 20.56.050 "Planned Community District Application
Procedures."
Chapter 5 — Definitions
Add the following new definitions to Chapter 5:
Restaurants: Establishments principally engaged in serving prepared food or beverages for
consumption on or off the premises.
Bars and Cocktail Lounges: Establishments licensed by the California Department of Alcohol
Beverage Control and principally engaged in selling or serving alcoholic beverages for
consumption on the premises and with all of the following characteristics:
1. Is ancillary to a primary use such as a restaurant, resort, inn, hotel, or other visitor
accommodation as defined in the NBMC, and is limited in area to no more than thirty
percent (30 %) of the floor area of the primary use.
2. Provides an area for sales, service, and consumption of alcoholic beverages that is
operated during the same hours as the primary use.
23
I
r
F-
s
Exhibit B
P�;� °s.� CA2008 -004
''
r
II
2
PC -57
PF
PF
PI 0.3
RM
(3100 1242
PC -57
' ■IIIII�` II
m� m� �N�
n on 1 mu
1 nn� 1m1
1111m m w
1111111111— ::
- 11111111
mI ul
MEIN
c 11
]3
,w 7 ", i' P.C;1�0 PC -38
PCo 38
Zoning Map
City of Newport Beach
eam.p
Ineua lml Zoning I
..'I Zoning olsMVd
Simcial ouMosee zoning ofach
a... .. ,.
R...
- ...p,. n...mm
a�.mo
1_.1,.11, .I. —
.amen
Oorl, Zoning Min.
� .mm
cul
Comm Zoning ClslrMs
. m...2�an�amw..aMrn:
MII Zoning DII
s
Exhibit B
P�;� °s.� CA2008 -004
''
r
II
2
PC -57
PF
PF
PI 0.3
RM
(3100 1242
PC -57
' ■IIIII�` II
m� m� �N�
n on 1 mu
1 nn� 1m1
1111m m w
1111111111— ::
- 11111111
mI ul
MEIN
c 11
]3
,w 7 ", i' P.C;1�0 PC -38
PCo 38
EXHIBIT C
Legal Description
Real property in the unincorporated area of the County of Orange, State of California, described as follows:
PARCELI:
A PORTION OF LOTS "B ", "C" AND "D ", ALL IN THE BANNING TRACT, AS SHOWN ON A MAP OF
SAID TRACT FILED IN THE CASE OF HANCOCK BANNING AND OTHERS VS. MARY H. BANNING,
FOR PARTITION, BEING CASE NO. 6385 UPON THE REGISTER OF ACTIONS 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 POINT 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 ADDmON 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 LINE OF LOT "B" OF SAID BANNING TRACT, THE FOLLOWING
COURSES AND DISTANCES: SOUTH 1 DEGREE 45' WEST 462.00 FEET; THENCE SOUTH 34
DEGREES IS' WEST 462.95 FEET; THENCE SOUTH 6 DEGREES IS' EAST 1058.48 FEET; THENCE
SOUTH 19 DEGREES 45' WEST 529.21 FEET; THENCE SOUTH 34 DEGREES 30' WEST 463.08
FEET; THENCE SOUTH 42 DEGREES 45' WEST 397.00 FEET; THENCE SOUTH 4 DEGREES 45'
WEST 462.00 FEET; THENCE SOUTH 21 DEGREES IS' WEST 198.50 FEET TO THE SOUTHWEST
CORNER OF LOT "B ", AS SHOWN ON SAID MAP OF THE BANNING TRACT, WHICH CORNER IS
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 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. 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 BEEN
RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS, WITH THE
SOUTHEASTERLY LINE OF SUMMIT STREET, 30 FEET IN WIDTH, AS SHOWN 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 SANTA ANA RIVER AND 600.00 FEET DISTANT
THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND
DISTANCES: SOUTH 78 DEGREES 02' EAST 486.60 FEET; THENCE SOUTH 66 DEGREES 42,20"
EAST 517.33 FEET; THENCE NORTH 20 DEGREES 06' IS" EAST 539.49 FEET; THENCE NORTH 51
DEGREES 48' EAST 405.76 FEET; THENCE NORTH 74 DEGREES 07' EAST 722.86 FEET; THENCE
SOUTH 45 DEGREES 20'28" EAST 740.97 FEET; THENCE SOUTH 27 DEGREES 46' 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 100 -FOOT RIGHT OF WAY OF THE CALIFORNIA 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
NORTHEASTERLY LINE OF SAID CALIFORNIA STATE HIGHWAY, THE FOLLOWING COURSES
AND DISTANCES: THENCE 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, HAVING A RADIUS OF 1650.00 FEET AND TANGENT TO THE LAST MENTIONED
COURSE, A DISTANCE OF 500.12 FEET; THENCE SOUTH 65 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
1650.00 FEET AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 48.34 FEET
TO A POINT IN THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF WHIMER
AVENUE (60 FEET IN WIDTH), AS SHOWN ON A MAP OF THE NEWPORT MESA TRACT
RECORDED IN BOOK 5, PAGE 1 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA, A RADIAL LINE FROM SAID POINT BEARS SOUTH 25 DEGREES 44,431, WEST;
THENCE NORTH 0 DEGREES 36'01" WEST ALONG THE SAID PROLONGATION OF WHInIER
AVENUE, 3061.05 FEET TO A POINT IN THE SOUTHWESTERLY LINE OF SAID FIRST ADDITION
25
EXHIBIT C
Legal Description
TO NEWPORT MESA TRACT; THENCE NORTH 29 DEGREES 24'45" WEST ALONG THE
SOUTHWESTERLY LINE OF SAID FIRST ADDITION TO THE NEWPORT MESA TRACT, 2706.70
FEET TO THE MOST WESTERLY CORNER OF SAID FIRST ADDITION TO THE NEWPORT MESA
TRACT; THENCE NORTH 19 DEGREES 01'55" 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 DESCRIBED 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, 1911 IN BOOK 197, PAGE 300 OF DEEDS,
ORANGE COUNTY, WHICH POINT IS NORTH 71 DEGREES 20' EAST 510.47 FEET FROM THE
SOUTHWEST CORNER OF SAID LOT "B ", WHICH LAST MENTIONED CORNER IS ALSO STATION
149 OF THE RANCHO SANTIAGO DE SANTA ANA; THENCE NORTH 13 DEGREES 25' EAST ALONG
THE EASTERLY LINE OF SAID 300 -FOOT STRIP OF LAND, 660 FEET; THENCE SOUTH 76
DEGREES 35' EAST 660 FEET; THENCE SOUTH 13 DEGREES 25' WEST 660 FEET; THENCE
NORTH 76 DEGREES 35' WEST 660 FEET TO THE POINT OF BEGINNING, AS CONDEMNED BY
THE CITY OF NEWPORT BEACH IN THE ACTION ENTITLED "CITY 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, 300 FEET WIDE, BY DEED RECORDED JUNE 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 135.84 FEET DISTANT FROM THE SOUTHWESTERLY
CORNER OF SAID LOT "B ", WHICH CORNER IS ALSO STATION 149 OF THE RANCHO SANTIAGO
DE SANTA ANA; THENCE 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 38.70
FEET TO AN ANGLE IN SAID WESTERLY LINE; THENCE NORTH 34 DEGREES 30' EAST 462.00
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 SAID RIGHT
OF WAY, 607.27 FEET TO A POINT IN THE WESTERLY LINE OF SAID LOT "B ";
THENCE ALONG THE WESTERLY LINE OF SAID LOT "B ", NORTH 34 DEGREES 15' EAST 148.48
FEET TO AN ANGLE IN SAID LINE; THENCE NORTH 1 DEGREE 45' EAST 436.44 FEET TO THE
NORTHWEST CORNER OF SAID LOT "B "; THENCE ALONG THE NORTHERLY LINE OF SAID LOT
"B ", NORTH 89 DEGREES 28' EAST 346.14 FEET TO A POINT IN THE EASTERLY LINE OF SAID
300 -FOOT RIGHT OF WAY; THENCE SOUTH 13 DEGREES 25' WEST 3831.55 FEET TO THE
SOUTHERLY LINE OF SAID LOT "B "; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT "B ",
NORTH 84 DEGREES 45' WEST 303.08 FEET TO THE POINT OF COMMENCEMENT.
ALSO EXCEPTING THEREFROM, THE PORTIONS THEREOF INCLUDED WITHIN A STRIP OF LAND
30 FEET IN WIDTH, THE CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT
THE POINT WHERE THE EASTERLY BOUNDARY LINE OF THE RANCHO LAS BOLSAS BETWEEN
STATIONS 78 AND 79 OF THE SAID BOUNDARY LINE IS INTERSECTED BY THE LINE WHICH
BEARS NORTH 13 DEGREES 26'3D" 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 ON THE SURVEYED CENTER LINE OF THE SANTA
ANA - ANAHEIM JOINT OUTFALL SEWER; THENCE FROM SAID POINT OF BEGINNING, SOUTH 13
DEGREES 26'3D" WEST ALONG SAID CENTER LINE TO STATION 187 +74.49, BEING THE POINT
ON THE SOUTH LINE OF SAID SECTION 18, 2294.92 FEET NORTH 89 DEGREES 38' EAST FROM
THE SOUTH QUARTER CORNER OF SAID SECTION; THENCE CONTINUING SOUTH 13 DEGREES
26'3D" WEST ALONG SAID SURVEYED CENTER LINE, 2795.66 FEET TO STATION 215 +70.15;
THENCE SOUTH 16 DEGREES 27'3D" WEST ALONG SAID CENTER LINE, 1050.35 FEET TO A
20
EXHIBIT C
Legal Description
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 3D -FOOT STRIP AND THE WESTERLY LINE OF THE
RIGHT OF WAY OF THE SANTA ANA RIVER THROUGH THE NEWBERT PROTECTION DISTRICT,
AS CONVEYED TO THE CITY OF SANTA ANA BY DEED RECORDED APRIL 14, 1934 IN BOOK 670,
PAGE 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 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 ORANGE, 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 WAS RECORDED JANUARY 3D, 1962 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, 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
ORANGE COUNTY, CALIFORNIA; THENCE SOUTH 89 DEGREES 21'50" WEST 16.50 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF
500.00 FEET; THENCE WESTERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 28 DEGREES
48'33", A DISTANCE OF 251.41 FEET TO A LINE TANGENT; THENCE SOUTH 60 DEGREES 33'
17" WEST ALONG SAID LINE TANGENT, A DISTANCE OF 404.60 FEET; THENCE NORTH 29
DEGREES 26'43" WEST 804.50 FEET; THENCE NORTH 60 DEGREES 33'17" EAST 300.00 FEET;
THENCE SOUTH 88 DEGREES 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 FROM 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 90.00 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 0 DEGREES 38'10" WEST 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 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 SCHOOL DISTRICT OF ORANGE COUNTY, CALIFORNIA VS.
SECURITY FIRST NATIONAL BANK, ETC., AND OTHERS" (CASE NO. 123141), A CERTIFIED COPY
OF WHICH ORDER WAS RECORDED AUGUST 5, 1965 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 TRACT, AS SHOWN ON A MAP FILED IN THE CASE
OF HANCOCK BANNING AND OTHERS VS. MARY H. BANNING, FOR PARTITION, BEING CASE
NO. 6385 UPON THE REGISTER OF ACTIONS OF THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA, IN AND FOR LOS ANGELES COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT B; THENCE SOUTHERLY ALONG
27
EXHIBIT C
Legal Description
THE WESTERLY BOUNDARY OF SAID LOT B, SOUTH 01 DEGREE 4600" WEST 462.00 FEET TO
RANCHO LAS BOLSAS, STATION 75, AND SOUTH 34 DEGREES 1500" WEST 462.95 FEET TO
RANCHO LAS BOLSAS, STATION 74, BEING THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID WESTERLY BOUNDARY, SOUTH O6 DEGREES 1500" EAST TO THE
WESTERLY LINE OF THE STRIP OF LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA,
RECORDED APRIL 14, 1934 IN BOOK 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
1600" WEST 462.95 FEET" THENCE ALONG SAID CERTAIN COURSE, SOUTH 34 DEGREES 15'
00" WEST TO THE TRUE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED AS PARCELS 100, 103,106 AND
108 IN THE NOTICE OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NO. CV 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 NOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL GAS, AND OTHER
HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WITH THE
RIGHT OF INGRESS AND EGRESS, UPON, OVER AND BENEATH THE SURFACE OF SAID LAND, ATALL
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 500 FEET, AS RESERVED IN THE DEED EXECUTED BY HANCOCK
BANNING JR. AND OTHERS, DATED AUGUST 1, 1958, RECORDED AUGUST 29, 1958 IN BOOK
4400, PAGE 532, AND RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PAGE 228, AS
AMENDED BY THE DEED AND AGREEMENT EXECUTED BY HANCOCK BANNING JR. AND OTHERS,
RECORDED DECEMBER 27, 1961 IN BOOK 5957, PAGE 665, ALL IN OFFICIAL RECORDS,
ORANGE COUNTY.
PARCEL2:
BEGINNING AT THE SOUTHWEST CORNER OF THAT CERTAIN LAND AS DESCRIBED IN PARCEL
1 IN DEED FROM HANCOCK BANNING JR. 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, 1958 IN BOOK 4437, PAGE 228 OF OFFICIAL RECORDS, ORANGE
COUNTY, ALSO BEING THE SOUTHWEST CORNER OF LOT "B" OF THE BANNING TRACT, AS
SHOWN ON THE MAP ATIACHED 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 LINE OF RANCHO SANTIAGO DE SANTA ANA, AS DESCRIBED IN BOOK 3, PAGE 387
OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; THENCE ALONG THE
SOUTHERLY LINE OF SAID PARCEL 1, SOUTH 72 DEGREES 51'36" 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. 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 BEEN RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS,
WITH THE SOUTHEASTERLY LINE OF SUMMIT STREET, 30 FEET IN WIDTH, AS SHOWN 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 SANTA ANA RIVER AND
600.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING
COURSES AND DISTANCES: SOUTH 78 DEGREES 02' EAST 486.60 FEET; SOUTH 66 DEGREES
42'20" EAST 517.33 FEET; NORTH 20 DEGREES 06' 15" EAST 539.49 FEET; NORTH 51
DEGREES 48' EAST 405.76 FEET; NORTH 74 DEGREES 07' EAST 722.86 FEET; SOUTH 45
DEGREES 20 28" EAST 740.97 FEET; SOUTH 27 DEGREES 46' EAST 498.37 FEET; SOUTH 13
DEGREES 35'40" EAST 820.19 FEET; 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
100 -FOOT 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;
THENCE SOUTHEASTERLY, PARALLEL WITH THE NORTHERLY AND NORTHEASTERLY LINE OF
4
ON
EXHIBIT C
Legal Description
SAID CALIFORNIA 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, HAVING A RADIUS OF
1650.00 FEET AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 500.12 FEET;
THENCE SOUTH 65 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 1650.00 FEET, AND TANGENT TO THE LAST
MENTIONED COURSE, A DISTANCE OF 48.34 FEET TO A POINT IN THE SOUTHERLY
PROLONGATION OF THE EASTERLY LINE OF WHITIIER AVENUE (60 FEET IN WIDTH), AS
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 LINE
FROM SAID POINT BEARS SOUTH 25 DEGREES 44'43" WEST, WHICH POINT IS THE
SOUTHEAST CORNER OF SAID PARCEL 1; THENCE SOUTH 0 DEGREES 36'01" EAST ALONG THE
SAID PROLONGATION OF WHITTIER AVENUE, 404.46 FEET TO AN INTERSECTION WITH THE
NORTHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 250 FEET IN WIDTH, AS DESCRIBED
IN PARCEL 1, ARTICLE II OF SAID DEED RECORDED AUGUST 29, 1958 IN BOOK 4400, PAGE
532 OF OFFICIAL RECORDS, 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 33 DEGREES 40'54" WEST; THENCE ALONG THE
NORTHEASTERLY, NORTHERLY, NORTHWESTERLY AND NORTHERLY LINE OF SAID PARCEL 1,
ARTICLE II, THROUGH THE FOLLOWING COURSES AND DISTANCES: NORTHWESTERLY ALONG
A CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1300.00 FEET, THROUGH AN
ANGLE OF 9 DEGREES 36'54", A DISTANCE OF 218.16 FEET TO A LINE TANGENT THERETO;
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 1300.00 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;
THENCE 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 LINE PARALLEL WITH THE SAID CENTER LINE OF THE SANTA ANA RIVER, AND
250.00 FEET DISTANT EAST THEREFROM, MEASURED AT RIGHT ANGLES THERETO, A RADIAL
LINE FROM SAID POINT BEARS NORTH 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 FOLLOWING 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; SOUTH 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 258.16 FEET; SOUTH 42 DEGREES 06 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 250.00
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 OT 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, MEASURED AT RIGHT ANGLES THERETO, THE
FOLLOWING COURSES AND DISTANCES: NORTH 60 DEGREES 52'34" WEST 120.39 FEET;
NORTH 64 DEGREES 06'50" WEST 216.59 FEET TO A POINT IN THE EASTERLY LINE OF THE
EASEMENT FOR THE PURPOSE OF MAINTAINING A RIVER CHANNEL OVER A STRIP OF LAND
�9
EXHIBIT C
Legal Description
300 FEET WIDE, IN FAVOR OF NEWBERT PROTECTION DISTRICT, AS DESCRIBED IN THE
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, ORANGE
COUNTY, SAID POINT BEING THE MOST NORTHWESTERLY CORNER OF SAID PARCEL 1,
ARTICLE II; THENCE SOUTH 13 DEGREES 25' WEST ALONG SAID EASTERLY LINE OF THE RIVER
CHANNEL, 256.04 FEET TO THE MOST SOUTHWESTERLY CORNER OF SAID PARCEL 1, ARTICLE
II; THENCE NORTH 64 DEGREES 06'50" WEST ALONG THE NORTHERLY LINE OF SAID BLOCK C
OF EL MORO TRACT, 16.02 FEET TO AN INTERSECTION WITH THE NORTHEASTERLY LINE OF
THE 100 -FOOT RIGHT OF WAY OF CALIFORNIA STATE HIGHWAY; THENCE NORTH 54 DEGREES
02' WEST ALONG SAID HIGHWAY RIGHT OF WAY LINE, 145.48 FEET TO THE CENTER LINE OF
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 356, PAGE 31 OF OFFICIAL RECORDS, ORANGE
COUNTY; THENCE NORTH 74 DEGREES 17' WEST 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 COUNTY; THENCE NORTH
15 DEGREES 43' EAST ALONG THE SAID SOUTHERLY EXTENSION OF THE WESTERLY
BOUNDARY LINE OF RANCHO 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 EXTERIOR BOUNDARIES OF THE RANCHO SANTIAGO DE
SANTA ANA, OR WITHIN THE EXTERIOR BOUNDARY LINES OF GOVERNMENT LOT 1, SECTION
19; GOVERNMENT LOT 1, SECTION 20; AND GOVERNMENT LOT 1, SECTION 29, ALL IN
TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN.
ALSO EXCEPTING THEREFROM, THAT PORTION OF SAID LAND INCLUDED WITHIN 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 ORANGE, 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 COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED AS PARCELS 100, 103,106 AND
108 IN THE NOTICE OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NO. CV 91- 3991 -I1-1, 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 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 500 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.
9_1Xy:1w:
A STRIP OF LAND 250 FEET WIDE, DESCRIBED AS FOLLOWS:
BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHERLY LINE OF BLOCK C OF EL
MORO TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 75 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AND THE EASTERLY LINE OF THE
EASEMENT FOR THE PURPOSE OF MAINTAINING A RIVER CHANNEL OVER A STRIP OF LAND
300 FEET WIDE, IN FAVOR OF NEWBERT PROTECTION DISTRICT, AS DESCRIBED IN THE
INTERLOCUTORY DECREE OF PARTITION DATED JULY 19, 1929, A CERTIFIED Copy OF WHICH
30
EXHIBIT C
Legal Description
WAS RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS; THENCE SOUTH
64 DEGREES 06'50" EAST, ALONG THE NORTHERLY LINE OF SAID EL MORO TRACT, 154.24
FEET; THENCE CONTINUING ALONG THE LAST MENTIONED NORTHERLY LINE, SOUTH 60
DEGREES 52'34" EAST 151.04 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF SUMMIT
STREET, 30.00 FEET IN WIDTH, AS SHOWN ON THE MAP OF SAID EL MORO TRACT, SAID
POINT BEING IN THE CENTER LINE OF THE SANTA ANA RIVER, AS SHOWN ON A MAP FILED IN
AND ANNEXED TO THE COMPLAINT IN CASE OF J. 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, PAGE 76 OF OFFICIAL RECORDS, ORANGE COUNTY;
THENCE SOUTH 78 DEGREES 02' EAST ALONG THE SAID CENTER LINE OF THE SANTA ANA
RIVER, 517.61 FEET; THENCE CONTINUING ALONG THE SAID CENTER LINE OF THE SANTA ANA
RIVER, SOUTH 66 DEGREES 42'20" EAST 644.09 FEET TO A POINT IN THE NORTHERLY 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; THENCE EASTERLY AND
NORTHEASTERLY ALONG THE NORTHERLY AND NORTHWESTERLY LINE OF SAID TRACT
NO.772, THE FOLLOWING COURSES AND DISTANCES: SOUTH 88 DEGREES 25' EAST 105.91
FEET; NORTH 72 DEGREES 45' EAST 268.62 FEET; NORTH 42 DEGREES 06' EAST 228.36 FEET;
NORTH 29 DEGREES O6' EAST 306.31 FEET TO A POINT IN THE SAID CENTER LINE OF THE
SANTA ANA RIVER; THENCE ALONG THE SAID CENTER LINE OF THE SANTA ANA RIVER, THE
FOLLOWING COURSES AND DISTANCES: NORTH 20 DEGREES 06'15" EAST 267.71 FEET;
NORTH 51 DEGREES 48' EAST 117.09 FEET; NORTH 74 DEGREES 07' EAST 254.30 FEET; SOUTH
45 DEGREES 20'28" EAST 298.02 FEET; SOUTH 27 DEGREES 46' EAST 331.04 FEET; SOUTH 13
DEGREES 35'40" EAST 665.36 FEET; SOUTH 1 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 100 -FOOT
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 20'43" EAST; THENCE ALONG THE
NORTHERLY AND NORTHEASTERLY LINE OF SAID CALIFORNIA STATE HIGHWAY, THE
FOLLOWING COURSES AND DISTANCES: EASTERLY ALONG A CURVE CONCAVE TO THE
NORTHEAST AND HAVING A RADIUS OF 950.00 FEET, A DISTANCE OF 209.67 FEET; SOUTH 83
DEGREES 18' EAST, TANGENT TO SAID CURVE, 646.66 FEET TO THE BEGINNING OF A CURVE
TO THE RIGHT, SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND
HAVING A RADIUS OF 1050.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A
DISTANCE OF 318.26 FEET; SOUTH 65 DEGREES 56' EAST, TANGENT TO SAID CURVE, 667.15
FEET TO THE BEGINNING OF A CURVE TO THE RIGHT, SOUTHEASTERLY ALONG A CURVE
CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1050.00 FEET, AND TANGENT TO
THE LAST MENTIONED COURSE, A DISTANCE OF 216.09 FEET; SOUTH 54 DEGREES 08,30"
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, AND TANGENT TO
THE LAST MENTIONED COURSE, A DISTANCE OF 264.46 FEET; SOUTH 70 DEGREES OS' 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 ATIACHED TO THE REPORT OF THE
REFEREES FILED APRIL 14, 1980 IN CASE NO. 6385 IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, CALIFORNIA; THENCE LEAVING
SAID CALIFORNIA STATE HIGHWAY, NORTH 39 DEGREES 43'45" EAST, ALONG THE
SOUTHEASTERLY BOUNDARY LINE OF SAID LOT D OF BANNING TRACT, 265.74 FEET TO A
POINT, BEING 250.00 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 OS' 3D" 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
MERCHANTS NATIONAL 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
NORTH 26 DEGREES 10'42" 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 176.40 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL OF LAND,
NORTH 5 DEGREES 44'28" WEST 104.32 FEET TO A POINT IN A LINE PARALLEL WITH THE
NORTHEASTERLY LINE OF SAID STATE HIGHWAY, AND 250.00 FEET DISTANT THEREFROM,
MEASURED AT RIGHT ANGLES THERETO; THENCE NORTHWESTERLY, PARALLEL WITH THE
31
EXHIBIT C
Legal Description
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 OS' 3 =' 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 700.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A
DISTANCE OF 194.87 FEET; NORTH 54 DEGREES 08'3D" 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 MENTIONED COURSE, A DISTANCE OF 267.55 FEET; NORTH 65
DEGREES 56' WEST, TANGENT TO THE SAID CURVE, 667.15 FEET TO THE BEGINNING OF A
CURVE TO THE LEFT, WESTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING
A RADIUS OF 1300.00 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 LINE PARALLEL WITH THE
SAID CENTER LINE OF THE SANTA ANA RIVER, AND 250.00 FEET DISTANT THEREFROM,
MEASURED AT RIGHT ANGLES THERETO, A RADIAL LINE FROM SAID POINT BEARS NORTH 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 FOLLOWING 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; SOUTH 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 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 DEGREES 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' 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 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 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 SAID NORTHERLY LINE OF BLOCK C, EL MORO TRACT, AND 250.00 FEET DISTANT
THEREFROM, MEASURED AT RIGHT ANGLES THERETO; THENCE WESTERLY, PARALLEL WITH
THE SAID NORTHERLY LINE OF BLOCK C, EL MORa TRACT, AND 250.00 FEET DISTANT
THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND
DISTANCES: NORTH 60 DEGREES 52'34" WEST 120.39 FEET, AND NORTH 64 DEGREES 06'50"
WEST 216.59 FEET TO A POINT IN THE EASTERLY LINE OF SAID EASEMENT 300.00 FEET
WIDE, FOR PURPOSE OF MAINTAINING THE SANTA ANA RIVER CHANNEL; THENCE SOUTH 13
DEGREES 25' WEST ALONG SAID EASTERLY LINE OF THE RIVER CHANNEL, 256.04 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 30, 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 SANTIAGO 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 6 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,
32
EXHIBIT C
Legal Description
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 THE 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 COUNTY FLOOD CONTROL
DISTRICT VS. CITY OF NEWPORT BEACH AND OTHERS" (CASE NO. 77399), A CERTIFIED COPY
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 THE LAND 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 COPY 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
108 IN THE NOTICE OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NO. CV 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, AN UNDIVIDED 30% INTEREST IN AND TO THE IDLE 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 FROM SAID LAND LOCATED BELOW A DEPTH OF 6200 FEET, BUT WITHOUT THE
RIGHT TO USE THE SURFACE OF SAID LAND DOWN TO A DEPTH OF 500 FEET, AS RESERVED
IN THE DEED FROM HANCOCK BANNING JR. 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, 1958 IN BOOK 4437, PAGE 228 OF OFFICIAL RECORDS, ORANGE
COUNTY, 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 COUNTY.
ALSO EXCEPTING THEREFROM, AN UNDIVIDED 70% INTEREST IN AND TO 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 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 500 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.
9t1 Zi7q1KI!
THOSE PORTIONS OF LOTS C AND D OF THE BANNING TRACT, AS SHOWN ON THE MAP
ATIACHED 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,
BEING ALSO A PORTION OF LOT 1 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, AND A PORTION OF TRACT NO. 2250, AS SHOWN ON A MAP RECORDED IN BOOK
104, PAGES 6 AND 7 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA,
DESCRIBED AS A WHOLE AS FOLLOWS:
33
EXHIBIT C
Legal Description
BEGINNING AT THE MOST EASTERLY CORNER OF TRACT NO. is, AS SHOWN ON A MAP
RECORDED IN BOOK 9, PAGE 19 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA, WHICH CORNER IS IN THE CENTER LINE OF SUPERIOR AVENUE, FORMERLY
NEWPORT AVENUE, AS SAID NEWPORT AVENUE IS SHOWN ON SAID MAP OF TRACT NO. 15,
AND ALSO IN THE SOUTHEASTERLY LINE OF SAID LOT D IN THE BANNING TRACT; THENCE
NORTH 29 DEGREES 24'45" WEST ALONG THE NORTHEASTERLY LINE OF SAID TRACT NO. is,
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
PROLONGATION OF THE SAID EASTERLY LINE OF WHITTIER 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 BOOK
4400, PAGE 532 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, 250.00 FEET
NORTHEASTERLY OF AND PARALLEL WITH THE NORTHEASTERLY LINE OF THE
100 -FOOT 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 OF INTERSECTION BEARS SOUTH 33 DEGREES 40,54"
WEST; THENCE SOUTHEASTERLY, PARALLEL WITH THE NORTHEASTERLY LINE OF SAID STATE
HIGHWAY, AND 250,00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO,
THE FOLLOWING COURSES AND DISTANCES: THENCE SOUTHEASTERLY ALONG A CURVE
CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 1300.00 FEET, 49.39 FEET; THENCE
SOUTH 54 DEGREES 08'30" EAST, TANGENT TO SAID CURVE, 387.05 FEET TO BEGINNING OF
CURVE TO THE LEFT; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE
NORTHEAST, HAVING A RADIUS OF 700.00 FEET, AND TANGENT TO THE LAST MENTIONED
COURSE, 194.87 FEET; THENCE SOUTH 70 DEGREES OS' 30" EAST, TANGENT TO SAID CURVE,
376.41 FEET TO A POINT IN THE WESTERLY LINE OF THAT CERTAIN 2.7827 -ACRE PARCEL OF
LAND AS DESCRIBED IN DEED FROM THE FARMERS AND MERCHANTS NATIONAL 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; 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 20 DEGREES 20'15" WEST; THENCE
NORTHEASTERLY ALONG A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF
450.00 FEET, 235.10 FEET; THENCE NORTH 39 DEGREES 43'45" EAST, 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 3D'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" EAST,
TANGENT TO THE LAST MENTIONED CURVE, 122.00 FEET TO A POINT IN THE
NORTHWESTERLY LINE OF SUPERIOR AVENUE, 60 FEET IN WIDTH, FORMERLY NEWPORT
AVENUE, AS SAID NEWPORT AVENUE 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 50 DEGREES 16,15"
EAST 30.00 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
10
EXHIBIT C
Legal Description
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
ORANGE COUNTY, CALIFORNIA; THENCE SOUTH 89 DEGREES 21'50" WEST 16.50 FEET TO
THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF
500.00 FEET; THENCE WESTERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 28 DEGREES
48'33", A DISTANCE OF 251.41 FEET TO A LINE TANGENT; THENCE SOUTH 60 DEGREES 33'
17" WEST ALONG SAID LINE TANGENT, A DISTANCE OF 404.60 FEET; THENCE NORTH 29
DEGREES 26'43" WEST 804.50 FEET; THENCE NORTH 60 DEGREES 33'17" EAST 300.00 FEET; THENCE
SOUTH 88 DEGREES 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 FROM 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 90.00 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 0 DEGREES 38'10" WEST 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 BOUNDARY LINE, A DISTANCE OF 789.32 FEET TO THE POINT
OF BEGINNING.
ALSO EXCEPTING 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 FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTER LINE OF FIFTEENTH STREET WITH THE
CENTER LINE OF MONROVIA AVENUE, AS SHOWN ON A MAP RECORDED IN BOOK 65, PAGES
31 THROUGH 36 INCLUSIVE OF RECORD OF SURVEYS IN 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
LINE OF SAID TRACT NO. 463; THENCE NORTH 29 DEGREES 26'43" WEST ALONG SAID
NORTHEASTERLY LINE, 272.61 FEET TO THE TRUE POINT OF BEGINNING OF THIS
DESCRIPTION; THENCE SOUTH 29 DEGREES 26'43" 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 LINE 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. CHAFFEY AND OTHERS, RECORDED IN BOOK 4228, PAGE 191 OF OFFICIAL
RECORDS OF SAID ORANGE COUNTY, AND THE SOUTHEASTERLY PROLONGATION THEREOF,
152.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND
HAVING A RADIUS OF 730.00 FEET; THENCE NORTHWESTERLY 130.21 FEET ALONG SAID
CURVE, THROUGH A CENTRAL ANGLE OF 10 DEGREES IT 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 ORANGE COUNTY; THENCE ALONG SAID
NORTHEASTERLY LINE, NORTH 63 DEGREES 11'16" WEST 1160.70 FEET TO A POINT IN A LINE
PARALLEL WITH AND DISTANT 100.00 FEET EASTERLY, AS MEASURED AT RIGHT ANGLES
FROM THE WESTERLY LINE OF THE LAND DESCRIBED IN ANNEXATION NO. 54 TO THE CITY OF
NEWPORT BEACH, DECEMBER 30,1963; THENCE ALONG SAID PARALLEL LINE, NORTH 0
DEGREES 38'10" WEST 734.93 FEET TO A LINE THAT 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 IN BOOK 7839,
PAGE 739 OF OFFICIAL RECORDS, ORANGE COUNTY.
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 1 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THAT PORTION INCLUDED IN THE LAND DESCRIBED IN THE DEED TO THE
CITY OF NEWPORT BEACH, RECORDED JUNE 6, 1995 AS INSTRUMENT NO. 95-
0237652 OF OFFICIAL RECORDS.
11
S5
EXHIBIT C
Legal Description
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 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 500 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.
ALSO EXCEPTING THEREFROM ALL THE MINERALS, INCLUDING WITHOUT LIMITATION ALL
OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN, ON 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.
APN: 114 - 170 -24, 114 - 170 -43, 114 - 170 -49, 114 - 170 -50, 114- 170 -52, 114 - 170 -56, 114- 170 -72,
114 - 170 -73, 114 - 170 -75, 114 - 170 -77, 114 - 170 -79, 114 - 170 -83 and 424 - 041 -04
12
so
Attachment CC 2
Ordinance No. 2012 -17
37
ORDINANCE NO. _
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.
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
S2
City Council Ordinance No. _
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 Califomia 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.
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.
39
City Council Ordinance No. _
Page 3 of 5
a. The Development Agreement specifies a twenty-five (25) year term; and
b. The Development Agreement species 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 -xxxx, the City Council, having final approval
40
City Council Ordinance No. _
Page 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:
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 regular meeting of the City Council of the City of Newport
Beach held on the 23nd of July, 2012, and adopted on the 14th day of August, 2012, by the
following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT, COUNCIL MEMBERS
41
ATTEST:
Leilani Brown, City Clerk
APPR VED AS TO FORM,
OF OF CITY ATTORNEY:
�I�CG
Aaron Harp, City Attorney �! �f�Z
for the City of Newport Beach
City Council Ordinance No. _
Paoe 5 of 5
42
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT NO. gDA2008 -003
by and between
CITY OF NEWPORT BEACH
and
AERA ENERGY %]LC AND CHEROKEE NEWPORT BEACH, ]LLC
(CONCERNING NEWPORT BANNING RANCH PROPERTY)
112/066751 -0090
3021844.12 a08/UM
.Im
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code Sections 65864- 65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement ") is dated for reference
purposes as of the _ day of 2012 (the "Agreement Date "), and is being entered
into by and between the CITY OF NEWPORT BEACH ( "City "), and AERA ENERGY, LLC
and CHEROKEE NEWPORT BEACH, LLC (collectively, "Landowner "). City and Landowner
are sometimes collectively referred to in this Agreement as the "Parties" and individually as a
"Party.
RECITALS
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 the Newport Banning Ranch (the "Pro pert '). Approximately 40 acres of the
Property is located within the incorporated boundary of the City of Newport Beach and the
remainder of the Property (the "County Property ") is located within unincorporated Orange
County, in City's sphere of influence, as approved by the Local Agency Formation Commission
of Orange County. The Property is bounded generally on the north by Talbert Nature
Preserve/Regional Park in the City of Costa Mesa and residential development in the City of
Newport Beach; on the south by West Coast Highway and residential development in the City of
Newport Beach; on the east by residential, light industrial, and office development in the cities of
Costa Mesa and Newport Beach; and on the west by the United States Army Corps of Engineers
wetlands restoration areas and the Santa Ana River. The entire Property is within the Coastal
Zone as established by the California Coastal Act. The Property is more particularly described in
the legal description attached hereto as Exhibit A and is depicted on 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 time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864 - 65869.5 (the "Development Agreement Statute "). 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 development 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 are completed within the period of time specified by the
agreement.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This Agreement is
consistent with the Development Agreement Ordinance.
1121066751 -0090
3021844.12 a08/02/12
-I-
FROM
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 that City would be
entitled to unilaterally impose on Landowner as a condition of development consistent with
applicable provisions of law:
Comprehensive oil field abandonment and remediation of the Property at an
estimated cost of approximately Thirty Million Dollars ($30,000,000).
o Provision and perpetual protection of natural open space at no cost to the public.
o Capture and treatment of offsite surface water drainage in accordance with Best
Management Practices, resulting in significant water quality benefits 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 Plan for the Project (the "Park
Conceptual Design Plans "), which Public Benefits are well in excess of the
requirements of California law (e:g., Government Code Section 66477 {the so-
called "Quimby Act")) and implementing City ordinances and regulations.
Improvement of private open space and recreational amenities in the Project that
will be open and available for public use in accordance with the approved Master
Development Plan, including (i) the approximately 5.0 gross /3.7 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 constructed and subject to approvals
required from other public agencies, including the California Department of
Transportation and the California Coastal Commission, a coastal public access to
be provided via a pedestrian and bicycle bridge from the Property across West
Coast Highway to the beach.
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.
Construction/installation of public street/traffic improvements in excess of the
Project's obligation for payment of "fair share" traffic fees.
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 General Plan was adopted by the
City Council of City on July 25, 2006, and the land use plan in the General Plan was approved
by City's voters on November 6, 2006. The General Plan land use designation for the Property
is OS(RV), Open Space /Residential Village, which establishes Open Space as the Primary Use
and Residential Village as the Alternative Use for the Property. In particular, the General Plan
provides that "if not acquired for open space within a time period and pursuant to terms agreed to
112/06675"090
3021544.12 a081021I2
2
Im
by the City and property owner, the site may be developed as a residential village containing a
mix of housing types, limited supporting retail, visitor accommodations, school, and active
community parklands, with a majority of the property preserved as open space. The property
owner may pursue entitlement and permits for a residential village during the time allowed for
acquisition as open space." Additionally, General Plan Land Use Policy 6.5.2 anticipates that the
Property will "[a]ccormnodate 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 of
Banning Ranch, if developed" The General Plan identifies the maximum intensity of
development allowed under the Property under the Alternative Use as one thousand three
hundred seventy -five (1,375) residential dwelling units, seventy -five thousand (75,000) square
feet of retail commercial uses oriented to serve the needs of local and nearby residents, and
seventy -five (75) hotel rooms and associated ancillary uses in a small boutique hotel. The
development project (referred to herein as the "Project ") Landowner will be entitled to develop
during the Term of this Agreement is consistent with the Alternative Use 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 Property for open space purposes,
that City has no ability to negotiate with Landowner to acquire the Property for its fair market
value, that the Primary Use of the Property described in the General Plan is infeasible, and,
accordingly, that the Alternative Use of the Property is the appropriate and legally authorized
use. Finally, subject to completion of City's planning and public hearing process and the
approval of the Orange County Transportation Authority, the Parties anticipate the Circulation
Element of City's General Plan will be amended on or before the Effective Date to delete the
westerly extension of 151h Street to West Coast Highway through the Property and to make
certain other revisions to the previously planned master plan circulation system within the
Property such that the Project as approved will be consistent with 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 finds and determines by its approval of this Agreement that this Agreement: (i) is
consistent with the City of Newport Beach General Plan as of the Agreement Date; (ii) is in the
best interests of the health, safety, and general welfare of City, its residents, and the public; (iii)
is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is
consistent and has been approved consistent with the Final Environmental Impact Report for the
City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 2006011119), the
Final Enviromnental Impact Report for the Newport Banning Ranch Project (the "Project EIR ")
that has been certified or is being certified for approval by the City Council of City on or before
the Agreement Date, and all findings, conditions of approval, and mitigation measures (including
the mitigation monitoring program) relating thereto; and (v) is consistent and has been approved
consistent with provisions of California Government Code Section 65867 and City of Newport
Beach Municipal Code Chapter 15.45.
G. On June 21, 2012, City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recormnended
to the City Council that the City Council approve this Agreement.
H. On July 23, 2012, the City Council also held a public hearing on this Agreement
and considered the Planning Commission's recommendations and the testimony and information
submitted by City staff, Landowner, and members of the public. On August 14, 2012, consistent
112/066751 -0090
3021944.12 008/UM
c
In
with applicable provisions of the Development Agreement Statute and Development Agreement
Ordinance, the City Council adopted its Ordinance No. 2012 -17 (the "Adopting Ordinance "),
finding this Agreement to be consistent with the City of Newport Beach General Plan and
approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Landowner agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed to that term in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. 2012 -17 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 the City
Council adopted the Adopting Ordinance.
"CDP" shall mean a coastal development permit issued by the California Coastal
Commission pursuant to California Public Resources Code Section 30600 et 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 the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section
15000 et seq.), as the same may be amended from time to time.
"C" shall mean the City of Newport Beach, a California charter city, and any successor
or assignee of the rights and obligations of the City of Newport Beach hereunder.
"City Council" shall mean the governing body of City.
" Citv's Affiliated Parties" shall have the meaning ascribed to that term in Section 10.1 of
this Agreement.
"Claim" shall have the meaning ascribed to that term in Section 10.1 of this Agreement.
"County Property" shall mean that portion of the Property that as of the Agreement Date
is located within unincorporated territory of the County of Orange and within City's sphere of
influence.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
1121066751 -0090
3021844.12 a08102/12
M
,7
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 that term in Section 8.1 of this
Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man -made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California 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
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals, and permits
approved by the City 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 land use entitlements,
approvals, and permits include, without limitation, the following: (i) General Plan Amendment
No. GP2008 -008 (amending the Circulation Element of the City's General Plan as referred to in
Recital E of this Agreement); (ii) Zoning Code Amendment No. CA2008 -004 (removing that
portion of the Property previously located within the PC -25 zone and changing the zoning for
this area to PC -57, approving a pre- annexation zone change for the portion of the Property
located within the unincorporated County territory to PC -57, and approving an amendment to
Section 20.65 of the Zoning Code to allow for a maximum height limit of 60 feet (as calculated
in accordance with applicable provisions of City's Municipal Code) in the Mixed -
Use/Residential land use area of the Project site); (iii) Planned Community Development Plan
No. PC2008 -002 (approving the Newport Banning Ranch Planned Community Development
Plan that will serve as the zoning and development regulations for the Property (as to the portion
of the Property currently within City's sphere of influence, upon the effective date of the
annexation of said portion of the Property into the City)); (iv) the Newport Banning Ranch
Master Development Plan No. MP2008 -001 (which implements the NBR -PC requirements for
the Property by establishing design criteria for each land use component proposed for
112/066751.0090
3021844.12 a08 /02112
5
42
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 construction -level permits,
as required by the NBR -PC); (v) Tentative Tract Map No. NT2008 -003 (subdividing the
Property for development purposes and establishing lots for public dedication or conveyance,
easements for trails and public utilities, lots for residential development and conveyance to
merchant builders and /or 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) Affordable Housing Implementation Plan ( "AHIP ") No. AH2O08 -001 (which, if
complied with, satisfies the Project's requirements for provision of affordable housing); (vii)
Traffic Study No. TS2008 -002 for the Project; (viii) the Project EIR; and (ix) all conditions of
approval and all mitigation measures approved for the Project on or before the Agreement Date,
including without limitation all of the provisions in the adopted Mitigation Monitoring and
Reporting Program approved for the Project pursuant to the Project EIR and applicable
provisions of CEQA.
"Development Revelations" 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 extent not expressly superseded by the Development Plan or this Agreement, all other
land use and subdivision regulations governing the permitted uses, density and intensity of use,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters that may apply to
development of the Project on the Property during the 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, rule, regulation or official policy governing any of the following: (i) the conduct of
businesses, professions, and occupations; (ii) taxes and assessments (provided that this exclusion
of taxes and assessments from the definition of Development Regulations shall not be interpreted
to authorize City to impose Development Exactions on the Property in excess of the amount of
such Development Exactions that would be authorized by applicable law in the absence of this
Agreement and nothing in this Agreement is intended 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 that are not in effect as of the Agreement Date); (iii) the control and
abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public property; or (v) the exercise of
the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved on or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations, the date on which the referendum is
112/066761 -0090
3021844.12 a08102A2
6
49
certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and /or the applicable Development Regulations, whether such finality is achieved by a final non-
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement; (iv) the date on which
annexation into the City of the portion of the Property currently located in City's sphere of
influence becomes effective, and subject to the Parties' understanding and agreement that if
Landowner elects to defer annexation into the City of all or a portion of the Oil Well Operational
Area, as permitted by Section 2.5 of this Agreement, the condition in this clause (iv) will be
satisfied on a phased basis, with the condition in this clause (iv) being deemed satisfied as to the
portion of the Property initially annexed into the City (together with the portion of the Property
already located in the City) on the date the first annexation of the portion of the County Property,
excluding the Oil Well Operational Area (or portion thereof) becomes effective, and the
condition in this clause (iv) being deemed satisfied as to the Oil Well Operational Area (or
portion thereof) as to which annexation is so deferred on such later date, if at all, that the
annexation of such area into the City becomes effective; (v) the date on which both of the
following have occurred: (A) the City Council of City has amended the Circulation Element of
City's General Plan to delete the most westerly extension of 15°i Street to West Coast Highway
(at the southwest corner of the Property) through the Property and to make certain other revisions
to the previously planned master plan circulation system within the Property, such that the
Project as approved 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 Plan of Arterial Highways ( "MPAH ") necessary to make the
Development Plan and Development Regulations consistent therewith; and (vi) the date on
which the California Coastal Commission approves a CDP for the Project consistent with the
Development Plan and Development Regulations. Promptly after the Effective Date occurs, the
Parties agree to cooperate in causing an appropriate instrument to be executed and recorded
against the Property (or the portion thereof as to which the Effective 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 regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and
regulations which may hereafter be enacted and which apply to the Property or any part thereof,
pertaining to the use, generation, storage, disposal, release, treatment, or removal of any
Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et seq., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, etsec., as amended
( "RCRA" ); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et M., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seo., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec ., as amended; the Toxic
112/066751 -0090
3021844.12 a06102112
7
50
Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et secl., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et se q., as amended; and California Health and Safety
Code Section 25100, et M.
"Fire Station No. 2 Fee" 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 Resolution No. 2006 -76, and approved by City's voters in the November 7, 2006,
general municipal election, as amended by General Plan Amendment No. 2008 -08 included
within the Development Plan, and excluding any amendment to City's General Plan adopted or
approved after the Agreement Date that impairs or restricts Landowner's rights set forth in this
Agreement, unless such amendment is expressly authorized by this Agreement, is authorized by
Sections 8 or 9, or is 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
petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Landowner" shall mean Aera Energy LLC, a California limited liability company, as to
an undivided one -half (1/2) interest in the Property, and Cherokee Newport Beach, LLC, a
Delaware limited liability company, as to an individed one -half (1/2) interest in the Property, and
any successor or assignee to all or any portion of the right, title, and interest of Aera Energy LLC
and Cherokee Newport Beach, LLC, in and to ownership of all or a portion of the Property. 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 Purchase 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 form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed to that term in Section 8.1 of this
Agreement.
1.12/066751 -0090
3021844.12 a08/02/12
H
151
"Oil Well Operational Area" shall mean the approximately twenty (20) acre portion of
the Property upon which oil drilling operations are permitted in accordance with the City
Charter. The Oil Well Operational Area is depicted in Exhibit A to the City Charter.
"Park Conceptual Design Plans" shall have the meaning ascribed to that term in Recital-D
of this Agreement.
"Eggy" or "Parties" 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 any portion of the
Property pursuant to the terms set forth in Section 11 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.
"Proiect" shall mean all on -site and off -site improvements that Landowner is authorized
and /or required to construct with respect to each parcel of the Property, as provided in this
Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"Project EIR" shall mean Final Environmental Impact Report SCH No. 2009031061
prepared and certified for the Project on or before the Agreement Date.
"Propert y" 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 Financine" shall mean the 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 the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations
and this Agreement, with the understanding that except as expressly set forth herein City shall
not have the right subsequent to the Agreement Date and during the Term of this Agreement to
adopt or impose requirements for any such Subsequent Development Approvals that do not exist
as of the Agreement Date.
"Term" shall have the meaning ascribed to that term in Section 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed to that
term in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed to that tern in Section 11 of this Agreement.
1121066751 -0090
3021841.12 a08102112
E
52
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Binding Effect of Agreement.
From and after the Effective Date and for the Term of this Agreement, the Property (or
the portion of the Property for which the Effective Date has occurred pursuant to this
Agreement) shall be subject to this Agreement and Development of the Property is authorized
and shall be carried out in accordance with the terms of this Agreement.
2.3 Landowner Representations and Warranties Regarding Ownership of the Property and
Related Matters Pertaining to this Agreement.
Landowner and each person executing this Agreement on behalf of Landowner hereby
represents and warrants to City as follows: (i) that Landowner is the owner of the fee simple title
to the Property; (ii) if Landowner or any co -owner comprising Landowner is a legal entity that
such entity is duly formed and existing and is authorized to do business in the State of California;
(iii) if Landowner or any co -owner comprising Landowner is a natural person that such natural
person has the legal right and capacity to execute this Agreement; (iv) that all actions required to
be taken by all persons and entities comprising Landowner to enter into this Agreement have
been taken and that Landowner has the legal authority to enter into this Agreement; (v) that
Landowner's entering into and performing its obligations set forth in this Agreement will not
result in a violation of any obligation, contractual or otherwise, that Landowner or any person or
entity comprising Landowner has to any third party; (vi) that neither Landowner nor any co-
owner comprising Landowner is the subject of any voluntary or involuntary petition in
bankruptcy, nor is Landowner or any such co -owner insolvent or unable to pay its debts and
perform 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 Landowner; and (viii) that Landowner has no
actual knowledge of any pending or threatened claims of any person or entity affecting the
validity of any of the representations and warranties set forth in clauses (i)- (vii), inclusive, or
affecting Landowner's authority or ability to enter into or perform any of its obligations set forth
in this Agreement.
2.4 Term.
The term of this Agreement (the "Term ") shall continence on the Effective Date and shall
terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if (i) the
Effective Date does not occur as to the entire Property, excepting only all or part of the Oil Well
Operational Area, within sixty (60) months after the Agreement Date or (ii) either Party
reasonably detennines 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
112/066751 -0090
1021844.12 a08/02112
10
5_2�
conditions precedent to the occurrence of the Effective Date have been disapproved by the
governmental agency having jurisdiction with respect thereto, or (iii) the Adopting Ordinance or
any of the Development Regulations approved on or before the Agreement Date for the Project
has/have been disapproved by City's voters at a referendum election or (iv) a final non-
appealable judgment is entered in a judicial action challenging the validity or legality of the
Adopting Ordinance, this Agreement, and/or any of the Development Regulations for the Project
approved on or before the Agreement Date such that this Agreement and /or any of such
Development Regulations is /are invalid and unenforceable in whole or in such a substantial part
that the judgment substantially impairs such Party's rights or substantially increases its
obligations, costs, or risks hereunder or thereunder, then such Party, in its sole and absolute
discretion, shall have the right to terminate this Agreement upon delivery of a written notice of
termination to the other Party, in which event neither Party shall have any further rights or
obligations hereunder- except that Landowner's indemnity obligations set forth in Article 10 shall
remain in full force and effect and shall be enforceable. Such termination shall not affect the
validity or enforceability of those Development Regulations otherwise applicable to the Property
or portions thereof that would survive independent of this Agreement.
If the Effective Date timely occurs as to the entire Property, excepting only all or a
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 area into the
City becomes effective, which may occur at any time prior to the Termination Date.
The Termination Date (as to the entire Property, including the Oil Well Operational Area)
shall be the earliest of the following dates: (i) the twenty-fifth (25a') anniversary of the
Agreement Date, as said date may be extended in accordance with Section 5 of this Agreement;
(ii) such earlier date that this Agreement may be terminated in accordance with Section 3.2,
Articles 5, 7, and/or Section 8.3 of this Agreement and /or Sections 65865.1 and/or 65868 of the
Development Agreement Statute, as the same may be applicable; (iii) as to any separate legal lot
within the Property (but not as to the balance of the Property or the portion thereof that remains
subject to this Agreement at such time), upon the "Lot Termination Date" (defined below); or
(iv) completion of the Project in accordance with the terms of this Agreement, including
Landowner's complete satisfaction, performance, and payment, as applicable, of all
Development Exactions, the issuance of all required final occupancy permits, and acceptance by
City or applicable public agency(ies) or private entity(ies) of all required offers of dedication.
As used herein, the term "Lot Termination Date" for any separate legal lot within the
Property means the date on which all of the following conditions have been satisfied with respect
to said lot: (i) the lot has been finally subdivided and sold or leased (for a period longer than one
year) to a Permitted Transferee, a member of the public, or other ultimate user; (ii) a final
Certificate of Occupancy or "Release of Utilities" has been issued for the building or buildings
approved for construction on said lot; and (iii) as to any lot that is to be dedicated to City or other
applicable governmental agency, the date on which an irrevocable offer of dedication or other
conveyance instrument reasonably satisfactory to City has been recorded against said lot, all
improvements that are required to be Developed on and with respect to said lot by Landowner
have been completed to the satisfaction of City, a Notice of Completion has been recorded with
respect to such improvements, and the time period for the filing/recordation of any stop notices
or lien claims shall have expired and all stop notices or lien claims timely filed /recorded shall
have been satisfied or bonded against to the reasonable satisfaction of City.
112/066751 -0090
3021841.12 a08/02/12
11
=s
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other Landowner obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
2.5 Annexation of County Propert y.
Subject to the provisions set forth in the immediately succeeding paragraph, from and
after the Agreement Date, Landowner at its sole cost and expense shall diligently pursue to
completion all necessary proceedings before the Orange County Local Agency Formation
Commission ( "LAFCO ") for the annexation of the County Property into the City. Landowner
and City shall cooperate with LAFCO in connection with the annexation of the County Property,
at no cost to City.
Notwithstanding the foregoing, Landowner shall have the right to defer annexation of one
or both of the Oil Well Operational Areas into the City (and, thereby, to phase the annexation of
the County Property into the City) as long as (i) Landowner determines in its sole and absolute
discretion that such areas will or may continue to be used for a period of time for oil drilling and
related purposes and (ii) such a phased annexation is consistent with applicable statutes and
LAFCO rules and regulations and will not hinder or delay annexation of the balance of the
County Property into the City.
In addition to the foregoing, the Parties mutually acknowledge and agree that Landowner
shall not be required to consent to completion of the annexation of any portion of the County
Property into City prior to the date that the California Coastal Commission approves a Coastal
Development Permit for the Project consistent with the Development Plan and such approval
becomes "final." As used herein, the Coastal Commission's approval of the Coastal
Development Permit for the Project shall be deemed to be "final" on the later of the following
dates, as applicable: (i) the day after the date on which the statute of limitations for filing a
judicial challenge to the California Coastal Commission's approval of the Coastal Development
Permit expires without any such judicial challenge being timely filed; or (ii) if a judicial
challenge to the California Coastal Commission's approval of the Coastal Development Permit is
timely filed, the last of the following dates: (A) the date upon which such judicial action is
dismissed with prejudice; (B) the date upon which such judicial action is dismissed without
prejudice and the statute of limitations for re -filing the same or similar action challenging the
California Coastal Commission's approval of the Coastal Development Permit expires without
such action being re -filed, (C) or the date upon which such judicial action is successfully
resolved in a manner which results in the California Coastal Commission's approval of the
Coastal Development Permit being upheld, either by a final non - appealable judgment or final
binding settlement agreement.
It is understood that the Property is "uninhabited" within the meaning of the Cortese -
Knox- Hertzberg 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 election rights as may be necessary and appropriate to cause
said annexation to be completed at the earliest feasible date; provided, however, that (i) nothing
in this paragraph is intended to modify or limit Landowner's right to defer annexation of one or
both of the Oil Well Operational Areas, as hereinabove set forth; and (ii) Landowner shall not be
1121066751 -0090
3021844.12 eos102112
12
155
required to provide such approvals, consents, and waivers of protest or election rights if, as a
condition to the annexation of the County Property (or applicable portions thereof) to the City,
LAFCO subjects the County Property to any conditions or burdens inconsistent with the terms
and conditions set forth in this Agreement.
Upon receipt of Landowner's written request, City agrees to support Landowner's
annexation application(s) with LAFCO by means of a written letter or City Council resolution,
and City further agrees to cooperate with Landowner with respect to such application(s), all at no
cost to City.
The Parties agree that the Development Regulations for the Property satisfy the
requirements of Government Code Sections 65859 and 56375 with respect to prezoning of the
County Property.
3. Public Benefits.
3.1 Public Benefit Fee.
Subject to the provisions set forth in the next paragraph below and in Sections 3.2 and
3.3, and as consideration for City's approval and performance of its obligations set forth in this
Agreement, Landowner shall pay to City a 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 Project (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 Benefit 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 CPI Index. The first CPI adjustment to the Public Benefit Fee shall occur on the third
anniversary of the Agreement Date of this Agreement (the first "Adjustment Date") and
subsequent CPI adjustments shall occur on each anniversary of the first Adjustment Date
thereafter until expiration of the Term of this Agreement (each, 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 adjustment 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 the applicable
Adjustment Dates shall in each instance be calculated based on the then most recently available
CPI Index figures such that, for example, if the first Adjustment Date occurs on July 1, 2016, and
the most recently available CPI Index 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 first
Adjustment Date shall be calculated by comparing the CPI Index for May 2014 with the CPI
Index for May 2015. In no event, however, shall application of the CPI Index on any
Adjustment Date reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below
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 not
increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1.
1171066751 -0090
7021844.12 a08 /02112
13
150
Landowner acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit
Fee is an essential term of this Agreement and is not severable from City's obligations and
Landowner's vesting rights to be acquired hereunder, and that Landowner expressly waives any
constitutional, statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such fee on any ground whatsoever, including without
limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the Mitigation Fee Act (California Government
Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this
Agreement for Landowner's default, if Landowner, including any Permitted Transferee, shall fail
to timely pay any portion of the Public Benefit Fee when due City shall have the right to (i)
withhold issuance of the occupancy permit and any other building, inspection, or development
permit or approval for the unit for which the Public Benefit Fee remains unpaid or (ii) withhold
issuance of building, occupancy, and other building or development permits for any other portion
of the Project that at that time is under common ownership with the defaulting Landowner or
Permitted Transferee, as applicable.
City shall have the right to spend the Public Benefit Fee on any public purpose that City
determines to be in the public interest, as designated by City in its sole and absolute discretion.
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 forth in
Section 3.3 of this Agreement, Developer shall not be entitled to a credit against the Public
Benefit Fee for the amount of any Development Exaction paid or performed by Developer and
vice versa), and is not subject to restrictions on the use of various forms of Development
Exactions.
3.2 Renegotiation of Public Benefit Fee if Development Plan Is Not Approved by California
Coastal Commission.
The Parties recognize that subsequent to the Agreement Date and prior to the
commencement of Development of the Project on the Property City and/or Landowner will be
required to apply to the California Coastal Commission ( "Commission ") for approval of a CDP
for the Project pursuant to applicable provisions of the California Coastal Act and that no
assurances can be provided as of the Agreement Date that the Commission will approve that
CDP application consistent with the Development Plan approved by City. The Parties further
acknowledge they have negotiated the amount and level of the Public Benefit Fee set forth in
Section 3.1 of this Agreement based upon the Development Plan approved by City.
Accordingly, and in addition to the fact that the Effective Date is conditioned upon the
Commission approving the CDP consistent with the Development Plan approved by City, in the
event the Commission's approval of the Project is issued subject to conditions or requirements
that (i) the number of residential dwelling units in the Project be reduced to a number less than
1,375, (ii) the net developable acreage of the Project on the Property be reduced below the
amount of net developable acreage approved by City as of the Agreement Date, or (iii) imposing
any other conditions or requirements on Landowner's development rights that Landowner, in its
sole and absolute discretion, determines materially increases the cost of Development above the
costs that would be incurred by Landowner to Develop the Project pursuant to the Development
Plan approved by City as of the Agreement Date, then, in such event, the Parties agree to
negotiate in good faith regarding a reduction in the amount of the Public Benefits and /or the
112/066751 -0090.
3021644.12 a09/02 /12
14
57
Public Benefit Fee. Notwithstanding the foregoing, nothing in this Agreement shall be deemed
to commit City to approve a reduction in the amount of the Public 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 Agreement 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 the items comprising the
Development Plan are being approved conditionally and contingent upon Landowner's
performance of its obligations set forth in this Agreement, Landowner's termination of this
Agreement automatically will result in the termination of the Development Plan and
Landowner's right to Develop the Project pursuant to the Development Plan.
3.3 Park Land Dedication and Improvements in Excess of Landowner's Ouimby Act
Requirement; City Option to Develop North and Central Community Parks; Possible
Increase or Decrease in Public Benefit Fee.
Based upon the number of residential dwelling units approved in the Development Plan
(1,375), City has calculated that Landowner's Quimby Act obligation for the Project would be to
dedicate to City 15,1 net useable acres of park land within the Property in a rough graded
condition, with full improvement of adjacent public 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
limitations on Landowner's Quimby Act obligations, and as further consideration for City's
approval and performance of its obligations set forth in this Agreement, Landowner agrees to
dedicate to City and City agrees to accept two public parks within the Property comprising a total
of approximately 18 net useable 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 limitations on
Landowner's Quimby Act obligations, and as further consideration for City's approval and
performance of its obligations set forth in this Agreement, Landowner agrees to improve the
North and Central Community Parks in accordance with the Park Conceptual Design Plans (as
the same may be supplemented or revised from time to time by City) and the final plans and
specifications for the North and Central Community Park improvements as approved by City in
accordance with City's Development Regulations. In this regard, prior to issuance of the fiftieth
(50`h) 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 -
item cost estimate for said park improvements based on the approved final plans and
specifications together with adequate supporting information to justify the amount and
reasonableness of each line item (collectively, the "Park Improvement Cost Estimate "). The
only costs included in Landowner's Park Improvement Cost Estimate shall be those costs
Landowner reasonably determines it will incur after (but not before) the Agreement Date to
design, engineer, construct, install, supervise, and inspect the North and Central Community
Park improvements and maintain such improvements prior to the time City accepts the North and
Central Community Parks for maintenance purposes, including any permit and inspection fees to
1171066751 -0090
3021644.12 a0E/02112
15
152
be paid to City with respect thereto and the cost of obtaining and maintaining in effect security
instruments for the work (collectively, the "Eligible Estimated Park Improvement Costs "). The
Eligible Estimated Park Improvement Costs shall not include any costs that Landowner
anticipates it will incur to deliver the North or Central Community Park in a Rough Grade
Condition. Construction management fees included in Eligible Estimated Park Improvement
Costs shall not exceed five percent (5 %) of the estimated "hard cost" of construction/installation
and no other costs for developer profit, overhead, or similar charges, by whatever name called,
shall be included in Eligible Park Improvement Costs. The contingency amount included in
Eligible Estimated Park Improvement Costs shall not 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 Project, on the other hand, Landowner shall fairly allocate costs between Eligible Park
Improvement Costs and other (non - eligible) costs.
City shall have the right to review and approve the final plans and specifications for the
North Park and Central Community Park improvements, the Park Improvement Cost Estimate,
and the Eligible Estimated Park Improvement Costs, including without limitation 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 matters.
Prior to the later of (i) City's issuance of a building permit for Development of the one
hundredth (100`h) 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 Estimate, and the Eligible Estimated Park Improvement Costs, City shall have
the right, but not the obligation, to deliver a written notice to Landowner informing Landowner
that City has elected to construct/install the North and Central Community Park improvements
itself (the "City Park Notice "). City's failure to timely deliver the City Park Notice by said
deadline shall conclusively be deemed to constitute an election by City to 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 indirectly by Landowner with respect to the North and Central
Community Park improvements (collectively, the "Park Plans "), free and clear of any claim of
any third party that would restrict City's free and unfettered right to use the same, but without
any representation or warranty by Landowner as to the completeness or adequacy of the same or
suitability for 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 forth in clause (i) Landowner's obligation with respect to the North and Central
Community Parks shall be limited to delivering such parks to City in a Rough Grade Condition,
which Landowner shall do at least one (1) year prior to the estimated date upon which
Landowner (including Permitted Transferees) will be requesting the two hundredth (200i1)
certificate of occupancy for a residential dwelling unit within the Project, and thereafter
1 121066751 -0090
3021844.12 a08102/12
16
159
Landowner shall be released from any further obligation under this Agreement and any of the
Development Regulations to improve the North and Central Community Park Improvements;
(iii) the amount of the Public Benefit Fee payable by Landowner to City shall be increased by the
sum of Light 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 =
$8,000,0001, with such $8,000,000 sum increased by the percentage increases in the CPI Index
commencing with the first Adjustment Date referred to in Section 3.1 (and with the amount of
the increase(s) calculated in the same manner as provided in Section 3.1) and on each
Adjustment Date thereafter through the date on which Landowner has fully performed its
obligations set forth in clauses (i) and (ii) (but not earlier than the date on which City has issued
the two hundredth (200 "') 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) subject to Section 9 of this
Agreement, City shall exercise commercially reasonable diligence to complete the Development
of the North and Central Community Park improvements within one (1) year of the date upon
which Landowner fully performs its obligations set forth in clauses (i) and (ii).
Notwithstanding the City's right to construct/install the North and Central Community
Park improvements, if City delivers the City Park Notice but it thereafter fails to timely
commence either or both of said improvements, Landowner shall have the right, but not the
obligation, to elect to construct/install said improvements itself. If Landowner desires to
exercise this ".self- help" remedy, it shall be required to deliver a written "Notice of Default" to
City, which Notice of Default shall clearly state that Landowner is electing to take over and
perform the work of constructing/installing the park improvements that are the subject of the
Notice of Default 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 City - approved Estimated Eligible Park Improvement Costs are equal to or less than
Eight Million Dollars ($8,000,000), with said sum adjusted in accordance with the percentage
increases in 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 date on which City has issued the two
hundredth (200`s) certificate of occupancy for a residential dwelling unit, excluding model
homes, within the Project (herein, the "Landowner's Estimated Cost Cap "), then Landowner
shall plan, design, engineer, construct, install, supervise, and inspect the North and Central
Community Park improvements and maintain such improvements prior to the time City accepts
the North and Central Community Parks for maintenance purposes; including payment of any
permit and inspection fees to be paid to City with respect thereto and the cost of obtaining and
maintaining in effect security instruments for the work, all at Landowner's sole cost and expense,
and regardless of whether the actual costs incurred by Landowner for said purposes actually
exceed the Landowner's Cost Cap; (ii) if the City- approved Eligible Park Improvement Costs
exceed the Landowner's Estimated Cost Cap, then Landowner's Public Benefit Fee shall be
decreased by the difference between the City- approved Eligible Park Improvement Costs and the
Landowner's Estimated Cost Cap such that, for example (and without taking CPI adjustments
1121066761 -0090
3021844.12a08/02112
17
00
into account), if the Landowner'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 $1,000,000
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 -site 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 occupancy for a residential dwelling unit (excluding model
homes) within the Project and Landowner shall complete construction of the North and Central
Community Park improvements in strict conformance with the City- approved final park plans
and specifications and applicable Development Regulations and otherwise to the reasonable
satisfaction of City no later than City's issuance of the three hundredth (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 for acceptance of the completed
North and Central Community Park improvements (with the understanding that such a request
may be submitted separately for each park), together with a certification by Landowner's design
professional that the improvements satisfy the requirements for acceptance set forth herein, City
shall consider such request and, if 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 time to time during the progress of Landowner's (and Permitted Transferees')
Development of the Project and upon Landowner's written request, City shall promptly advise
Landowner of the status of the number of certificates of occupancy for residential dwelling units
that City has issued, in order to enable Landowner to plan the timing of its performance
obligations set forth in this Section 3.3 with respect to the North and Central Community Park
improvements. Said City obligation shall terminate when City has advised Landowner that City
has issued the 300 °i certificate of occupancy for a residential dwelling unit within the Project.
The aforedescribed obligations of Landowner with respect to the North and Central
Community Parks shall be in addition to its obligations to dedicate, develop, and /or restore other
public and private trails, park, habitat areas, and park/open space improvements on other portions
of the Property.
City acknowledges that Landowner's performance of its obligations set forth in the
Development Regulations and this Agreement will satisfy all of Landowner's 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; Fair Share Traffic Fee Credit; Acquisition of 15"'
Street Right -of -Way.
If the California Coastal Commission approves the Project so as to authorize
construction/installation of the portion of Bluff Road between 17 °i Street and 19 °' Street the
Parties agree (subject to any contrary conditions that may be imposed by the California Coastal
1121066751 -0090
3021844.12 MOM
W
02
Commission) that said road improvements shall be constructed/installed in conjunction 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 final tract map(s) that include(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 date on which the 800`h
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 °1 Street and 19`h Street, said road improvements (beyond the rough
grading stage of Development) may be constructed /installed either by Landowner or by City, as
City may elect. City shall make such election by delivering written notice to Landowner
sufficiently in advance of the date that such construction/installation will need to commence in
order to enable each Party to timely plan to fulfill its responsibilities with respect thereto and, in
this regard, the Parties agree to consult and cooperate with one another during the course of
Landowner's Development of the Project consistent with that objective. If City elects to
construct/install the portion of Bluff Road between 17`h Street and 190' Street, Landowner shall
pay to City a fair share traffic fee 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 all improvements within the dedicated right -of -way, but
excluding the cost /value of the right -of -way, the rough grading cost, and the cost of complying
with any environmental mitigation requirements attributable to the grading required for said
roadway and construction/installation of the roadway itself and whether such environmental
mitigation requirements are imposed by City or 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) days after the Party
performing the work submits to the Party obligated to make payment (i) an invoice requesting
payment and (ii) satisfactory evidence that the Party responsible to perform the work has entered
into a construction contract to complete the work and said Party's contractor has commenced
work pursuant to said construction contract. It 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 17`' Street and 19°i Street) or City's cash payment to Landowner for said improvements
(if City elects to have Landowner construct/install the same) shall be based on the City's
estimated cost of said roadway and not the actual construction/installation cost.
If City elects to construct/install the portion of Bluff Road between 17`h Street and 191h
Street, City shall accept Landowner's offer of dedication of the right -of -way for said roadway in
accordance with applicable Development Regulations promptly after Landowner submits a
written request therefor, together with a certification by Landowner's civil engineer that the lines
and grades of the graded road extension conform to the plans therefor and City verifies the work
has in fact been satisfactorily completed. If City elects to have Landowner construct/install said
112/066751 -0090
3021844.12.08/02 /12
19
02
road improvements, City shall accept Landowner's offer of dedication of the right -of -way and
improvements for said roadway in accordance with applicable Development Regulations
promptly after Landowner submits a written request therefor, 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
satisfactorily completed. In either case, City's acceptance shall be subject to whatever rights
City would normally have under its applicable Development Regulations in the absence of this
Agreement with respect to reservation of claims for defective work and 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 15.38 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 if, for whatever reason, the
California Coastal Commission requires the Development Plan to be modified to delete
construction of the portion of Bluff Road between 17 "' Street and 19 °i Street. Landowner shall
not be entitled to a 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 construct/install
street/transportation 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 151h Street in accordance with the Project EIR
and applicable Development Regulations, including, if applicable, City's cost of acquisition. If
Landowner fails to acquire the needed right -of -way for the 15`h 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 for 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 court
costs, and City payroll costs for the time spent working on said acquisition by in -house City
staff.
3.5 Landowner's Contribution Toward Cost of Redevelopment of Fire Station No. 2.
In order to implement Mitigation Measure 4.14 -2 in the Project EIR relating to
redevelopment of City's Fire Station No. 2 and as further consideration for City's approval and
performance of its obligations set forth in this Agreement, Landowner shall pay to City a fee 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 at the same times and in the same manner as set forth in Section 3.1 of
112/066751 -0090
3021844.12 a08 102112
20
0_2�
this Agreement for CPI adjustment to the Public Benefit Fee. Notwithstanding any other
provision set forth in this Agreement to the contrary, during the Term of this Agreement City
shall not increase the Fire Station No. 2 Fee except pursuant to the CPI Index as stated in this
Section 3.5. Landowner acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay the Fire Station No. 2 Fee, that its obligation to pay the Fire Station
No. 2 Fee is an essential term of this Agreement and is not severable from City's obligations and
Landowner's vesting rights to be acquired hereunder, and that Landowner expressly waives any
constitutional, statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such fee on any ground whatsoever, including without
limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the Mitigation Fee Act (California Government
Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this
Agreement for Landowner's default, if Landowner, including any Permitted Transferee, shall fail
to timely pay any portion of the Fire Station No. 2 Fee when due City shall have the right to (i)
withhold issuance of the occupancy permit and any other building, inspection, or development
permit or approval for the unit as to which the Fire Station No. 2 Fee remains unpaid or (ii)
withhold issuance of building, occupancy, and other building or development permits for any
other portion of the Project that at that time is under common ownership.
4. Development of Project.
4.1 Applicable Regulations; Landowner's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the 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 the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit, prevent, or delay development of the Property on grounds inconsistent
with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing
herein is intended to limit or restrict City's discretion with respect to (i) review and approval
requirements contained in the Development Regulations, (ii) exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, (iv) approval, conditional approval, or
denial of any modifications or amendments to the Development Regulations as may be required
in order to conform to or comply with the action taken by the California Coastal Commission
with respect to the Coastal Development Permit approved by the Commission with respect to the
Project; or (v) any environmental approvals that may be required under CEQA or any other
federal or state law or regulation in conjunction with any Subsequent Development Approvals
that may be required for the Project, and in this regard, as to future actions referred to in clauses
(i) -(v) of this sentence, City reserves its full discretion to the same extent City would have such
discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing
in this Agreement is intended to vest Landowner's rights with respect to any laws, regulations,
rules, or official policies of any other governmental agency or public utility company with
jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations,
rules, or official policies that may be inconsistent with this Agreement and that override or
supersede the provisions set forth in this Agreement, and regardless of whether such overriding
1121066751 -0090
3021644.12 a08/02/12
21
LSis
or superseding laws, regulations, rules, or official policies are adopted or applied to the Property
or the Project prior or subsequent to the Agreement Date.
Landowner has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Landowner represents and City
acknowledges that Landowner would not make these expenditures without this Agreement, and
that Landowner is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
Landowner may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic than the Project as
approved as of the Agreement Date and, in addition, Landowner may apply to City for approval
of minor amendments to existing tentative tract maps, tentative parcel maps, or associated
conditions of approval, consistent with City of Newport Beach Municipal Code section
19.12.090. This Agreement does not constitute a promise or commitment by City to approve any
such permit or approval, or to approve the same with or without any particular requirements or
conditions, and City's discretion with respect to such matters shall be the same as it would be in
the absence of this Agreement.
Notwithstanding any other provision set forth in this Agreement, nothing in this
Agreement is intended or shall be interpreted to place an affirmative obligation on Landowner to
proceed with or Develop the Project; provided, that if Landowner does elect to do so it shall do
so in strict conformity with the provisions set forth in this Agreement and the Development Plan
(as the same may be amended from time to time consistent herewith).
4.2 No Conflicting Enactments.
Subject to City's reserved right to reconsider the Development Regulations for the
Project if and to the extent the California Coastal Commission does not approve a CDP
consistent therewith and except to the extent City otherwise reserves its discretion as expressly
set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project
or the Property any ordinance, policy, rule, regulation, or other measure relating to Development
of the Project that is enacted or becomes effective after the Agreement Date to the extent it
conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an
ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to
California Government Code Section 65866 consistent with the procedures specified in Section
4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465,
the California Supreme Court held that a construction company was not exempt from a city's
growth control ordinance even though the city and construction company had entered into a
consent judgment (tantamount to a contract under California law) establishing the company's
vested rights to develop its property consistent with the zoning. The California Supreme Court
reached this result because the consent judgment failed to address the timing of development.
The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this
Agreement that Landowner shall have the vested right to Develop the Project on and with respect
to the Property at the rate, timing, and sequencing that Landowner deems appropriate within the
exercise of Landowner's sole subjective business judgment and notwithstanding adoption by
112/066751-0090
3021644.12 s08102112
22
05
City's electorate of an initiative or referendum to the contrary after the Agreement Date;
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 part of the
Project and whether enacted by initiative, referendum (excepting a referendum that overturns one
or more of the elements of the approved Development Plan prior to the 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 or otherwise
conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City -wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and
Landowner shall be required to pay all applicable processing and permit fees 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 time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Landowner
has consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this
Agreement, Landowner shall be required to satisfy and pay all Development Exactions that are
in effect as of the Agreement Date at the time performance or payment is due in the amounts that
would apply to Landowner and the Project at that time in the absence of this Agreement;
provided, however, that to the extent the scope and extent of a particular Development Exaction
or charge has been established and fixed by City in Sections 3.3 -3.5 of this Agreement (with
respect to Quimby Act 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
112/066751-0090
3021844.12 a08/02/12
23
MIN
approved on or before the Agreement Date City shall not alter, increase, or modify said
Development Exaction in a manner that is inconsistent with such Development Regulations
without Landowner's prior written consent or as may be otherwise required pursuant to
overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing
in this Agreement is intended or shall be deemed to vest Landowner against the obligation to pay
any of the following (which are not included within the definition of "Development Exactions ")
in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for
processing, environmental assessment and review, tentative tract and parcel map review, plan
checking, site review and approval, administrative review, building permit, grading permit,
inspection, and similar fees imposed to recover City's costs associated with processing,
reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges
levied by any other public agency, utility, district, or joint powers authority, regardless of
whether City collects those fees and charges; or (iii) community facilities district special taxes or
special district assessments or similar assessments, business license fees, bonds or other security
required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer
lateral connection fees, water service connection fees, new water meter fees, and the Property
Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Landowner's vested rights set forth in this Agreement,
including without limitation the provisions of the California Coastal Act, shall apply to the
Property, together with any non - discriminatory City ordinances, resolutions, regulations, and
official policies that are necessary to enable City to comply with the provisions of any such
overriding federal or state laws and regulations, provided that (i) Landowner does not waive its
right to challenge or contest the validity of any such purportedly overriding federal, state, or City
law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that is not consistent with the provisions of this Agreement or otherwise prevents or
precludes compliance with any provision of this Agreement, City or Landowner shall provide to
the other Party a written notice identifying the federal, state, or City law or regulation, together
with a copy of the law or regulation and a brief written statement of the conflict(s) between that
law or regulation and the provisions of this Agreement. Promptly thereafter City and Landowner
shall meet and confer in good faith in a reasonable attempt to determine whether a modification
or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding
federal, state, or City law or regulation. In such negotiations, City and Landowner agree to
preserve the terms of this Agreement and the rights of Landowner as derived from this
Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate
with Landowner at no cost to City in resolving the conflict in a manner which minimizes any
financial impact of the conflict upon Landowner. City also agrees to process in a prompt manner
Landowner's proposed changes to the Project and any of the Development Regulations as may
be necessary to comply with such overriding federal, state, or City law or regulation; provided,
however, that the approval of such changes by City shall be subject to the discretion of City,
consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that City reasonably determines is necessary to protect persons on the
Property or in the immediate vicinity from conditions dangerous to their health or safety shall
apply to the Property, even though the application of the ordinance, resolution, rule regulation,
112/066751 -0090
3021844.12 a08102/12
24
07
program, or official policy would result in the impairment of Landowner's vested rights under
this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Landowner constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 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 from time to time, as and when service connections
are provided and service commences). While City represents that as of the Agreement Date City
has adequate capacity to provide water and wastewater services to the Project if the Project were
fully built out as of the Agreement Date, City makes no representation or warranty to Landowner
that the infrastructure needed to provide water and wastewater services will be sufficient at the
time Landowner Develops the Project, City is not hereby committing to improve or upgrade
existing water or wastewater utility infrastructure for the benefit of Landowner or the Project,
City does not warrant or represent that adequate water supplies or wastewater treatment capacity
will be available to serve Landowner or the Project at the time Development occurs, and, with
the exception of City's commitment that after the Agreement Date it will not adopt or enforce
any discriminatory City laws or regulations (as defined above) against the Project relating to the
provision 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 representing, warranting, or guaranteeing that any other entity has the
capacity, willingness, or ability to provide such services.
4.4 Tentative Subdivision Mans
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- 66498.9 and City
of Newport Beach Municipal Code Chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Government Code Section 66452.6(a)), the life of
any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, together with any Subsequent Development Approval, shall be extended for
the Term of this Agreement.
112/066751 -0090
3021844.12 a08 102/12
25
02
4.5 Responsibility for Processing Application for Coastal Development Permit; Costs
Within ninety (90) days after the Agreement Date, Landowner shall prepare and submit
to the California Coastal Commission a complete application for approval of a Coastal
Development Permit for the Project consistent with the Development Regulations and this
Agreement and thereafter Landowner shall exercise commercially reasonable diligence in an
effort to obtain an acceptable final decision by the California Coastal Commission with respect
to said application as soon as is reasonably practicable. Landowner shall be responsible for all
costs and expenses incurred with respect to said application. City agrees to reasonably cooperate
with and support Landowner in the processing of said application, at no cost to City; provided,
that City's cooperation shall not require City to agree to perform any obligations in excess of or
inconsistent with the Development Regulations or this Agreement, nor shall City be required to
waive Landowner's full compliance with any of Landowner's obligations set forth in the
Development Regulations or this Agreement. Landowner shall reimburse City for all of City's
reasonable costs and expenses incurred with respect to Landowner's CDP application (including
without limitation City's payroll costs and costs for outside counsel and consultants (if required),
prorated with respect to City staff time for the periods of time that City staff devote to said
application) within thirty (30) days after receipt of invoices and supporting information.
Landowner shall not be liable to City for any City staff time spent with respect to the CDP
application following the date of City's receipt of Landowner's written notice to City that
Landowner has abandoned the application for the CDP.
Notwithstanding any other provision set forth in this Agreement to the contrary, if the
California Coastal Commission does not approve a CDP for the Project as submitted and City is
called upon to consider a revised Project or revised conditions of approval or mitigation
measures in response to the Commission's action, City shall not be deemed to be in violation of
any of its obligations set forth herein.
4.6 Public Financing
Upon receipt of Landowner's written request, City shall consider in good faith any
requests for Public Financing to assist in Landowner's Development of the Project; provided,
however, that (i) in no event shall City be responsible to pay any costs or incur any liabilities in
connection therewith and, to the extent City will be required to incur any such costs, Landowner
shall advance or reimburse the same pursuant to a subsequent agreement to be entered into by
City and Landowner; (ii) in no event shall any City funds or property be used as a source of
payment or security for any such Public Financing; (iii) City reserves its full legislative
discretion with respect to the formation of any Public Financing districts (including without
limitation a community facilities district or assessment district), issuance of bonds secured by the
Property (or portions thereof), and all matters relating thereto, including without limitation the
total amount of Public Financing to be provided, the eligible improvements for such Public
Financing, provisions as to how any special taxes or assessments shall be allocated by means of
the rate and method of apportionment or engineer's report, the term of any bonds to be issued,
the minimum value -to -lien ratio to be used in sizing the bonds, and such other bond- related
matters as the identity of consultants, issuance costs, and the amount of capitalized interest and
reserve fund requirements; and (iv) in no event shall City be deemed to be in Default of its
obligations set forth in this Agreement if it fails or refuses to form a Public Financing district,
1121066751 -0090
3021844.12 x08/02112
26
09
issue bonds, or take any other related action requested or desired by Landowner with respect
thereto.
5. Amendment or Cancellation of Agreement
Except as expressly set forth herein, including without limitation Sections 3.2 and 8.3,
this Agreement may be amended or canceled in whole or in part only by mutual written and
executed consent of the Parties in compliance with California Government Code Section 65868
and City of Newport Beach Municipal Code Section 15.45.060 or by unilateral termination by
City in the event of an uncured default of Landowner.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code Section 65869.5, this Agreement shall be
enforceable by either Party in accordance with its terms and without regard to any change in any
applicable general or specific plan, zoning, subdivision, or building regulation or other
applicable ordinance or regulation adopted by City (including by City's electorate) that purports
to apply to any or all of the Property.
In the event of any inconsistency or conflict between the terms set forth in this
Agreement and any of the documents comprising the Development Plan, the terms and
conditions set forth in this Agreement shall govern.
7. Annual Review of Landowner's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code Section 65865.1. Landowner (including any successor to the owner executing this
Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City
may reasonably establish from time to time to cover the actual and necessary costs for the annual
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
7.2 Landowner Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Landowner is required to demonstrate good faith
compliance with the terms of the Agreement in accordance with the provisions of the
Development Agreement Ordinance and City's generally applicable policies and procedures.
Landowner agrees to furnish such evidence of good faith compliance as City, in the reasonable
exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective
Date during the Term.
7.3 Procedure.
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,
1 12/06679-0090
3021894.12 x08/02/12
27
�D
complied with the terms of this Agreement. If the City Council finds that Landowner has so
complied, the annual review shall be concluded. If the City Council finds, on the basis of
substantial evidence, that Landowner has not so complied, written notice shall be sent to
Landowner by first class mail of the City Council's finding of non - compliance, and Landowner
shall be given at least ten (10) days to cure any noncompliance that relates to the payment of
money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the
payment of money cannot be completed within thirty (30) days for reasons which are beyond the
control of Landowner, Landowner must commence the cure within such thirty (30) days and
diligently pursue such cure to completion. If Landowner fails to cure such noncompliance
within the time(s) set forth above, such failure shall be considered to be a Default and City shall
be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of
Landowner's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Landowner or limit City's rights or remedies for any such
Default.
8. Events of Default.
8.1 General Provisions; Notice of Default and Cure Period; Judicial Reference for Resolution
of Certain Disputes.
In the event of any material default, breach, or violation of the terms of this Agreement
( "Default" ), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the
alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the
Default relates to the failure to timely make a monetary payment due hereunder, not less than
thirty (30) days in the event of non - monetary Defaults excepting only a City Default in failing to
timely commence construction/installation of the North and /or Central Community Park
improvements after delivering the City Park Notice, as referred to in Section 3.3, and ninety (90)
days if the Default relates to a City Default in failing to timely commence
construction/installation of the North and /or Central Community Park improvements after
delivering the City Park Notice) in which the Default must be cured (the "Cure Period "). During
the Cure Period, the Party charged shall not be considered in Default for the purposes of
termination of this Agreement or institution of legal proceedings. If the alleged Default is cured
within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non -
monetary Default cannot be cured during the Cure Period with the exercise of commercially
reasonable diligence, the defaulting Party must promptly commence to cure as quickly as
possible; and in no event later than thirty (30) days after it receives the Notice of Default as to all
non - monetary Defaults other than a City Default in failing to timely commence
construction/installation of the North and /or Central Community Park improvements after
delivering the City Park Notice, and in no event later than ninety (90) days after City receives a
Notice of Default with respect to its failure to timely commence construction/installation of the
North and /or Central Community Park improvements, and thereafter the defaulting Party shall
diligently pursue said cure to completion.
112/066751 -0090
3021844.12 a08102112
M
7z
Notwithstanding the foregoing, in the event City and Landowner cannot resolve any
dispute arising under either Section 3.3 or 3.4 of this Agreement within thirty (30) days
following either Party's delivery of a Notice of Default to the other Party, then either Party shall
have the right thereafter to submit such dispute to a reference judge for a binding decision. Such
dispute shall be heard by a reference proceeding from the Orange County Superior Court
pursuant to California Code of Civil Procedure Section 638 et seq. A single referee shall try all
issues arising under Section 3.3 and /or 3.4, as applicable (but not issues arising under any other
provision of this Agreement unless the Parties so agree in writing at the time of such judicial
reference, with each Party reserving the right in its sole and absolute discretion to decline to
submit to judicial reference any dispute not arising under Section 3.3 or 3.4), whether of fact or
law, and report a finding and judgment thereon, and issue all relief appropriate under the
circumstances of the controversy before him/her (and subject to the limitations on remedies set
fords in Sections 8.6- 8.10). The referee may be asked to issue orders for the settlement, cure,
correction, or remedy of any such Default, or to enforce any covenant or agreement in Section
3.3 or 3.4 herein (or other covenant or agreement set forth in this Agreement if and only if the
Parties subsequently agree in writing to submit it to judicial reference), to issue mandatory or
prohibitory injunctions, to issue a writ of mandamus, issue a declaration in any declaratory relief
action, or to grant any other remedies consistent with the limitations on remedies set forth in
Sections 8.6 -8.10 and the purposes of this Agreement. All decisions of the referee within the
permitted scope of the judicial reference shall be final and binding on the Parties. From the date
of the filing of a complaint or petition with respect to any dispute that is subject to resolution by
judicial reference, as set forth above, until the date upon which the one referee chosen by
Landowner and City agree to serve and in fact begins serving, the Orange County Superior Court
Judge sitting as the writs and receivers judge shall be the referee for the purposes of issuing all
orders in any proceedings hereunder. Any referee selected pursuant to this Section shall be
considered a temporary judge appointed pursuant to Article 6, Section 21 of the California
Constitution. Immediately upon the service of a complaint that is subject to judicial reference, as
set forth above, counsel for Landowner and City shall be obligated to cooperate in good faith to
select and formally retain the services of a referee, in writing, through the services of the Judicial
Arbitration and Mediation Service. If Landowner and City are unable to agree on the identity of
a referee within ten (10) days of the service of such a complaint, either Party may seek to have
one appointed pursuant to California Code of Civil Procedure Section 640. The cost of such
reference proceeding shall initially be borne equally by the Parties, but the prevailing party shall
ultimately be awarded a judgment for its share of such costs.
8.2 Default by Landowner.
If Landowner is alleged to have committed a non - monetary Default and it disputes the
claimed Default, it may make a written request for an appeal hearing before the City Council
within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at
the next available City Council meeting to consider Landowner's appeal of the Notice of
Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period
shall waive any right to a hearing on the claimed Default. If Landowner's appeal of the Notice
of Default is timely and in good faith but after a public hearing of Landowner's appeal the City
Council concludes that Landowner is in Default as alleged in the Notice of Default, the accrual
date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be
extended until the City Council's denial of Landowner's appeal is communicated in writing to
Landowner.
112/066751 -0090
3021544.12 a08102112
29
72
8.3 City's Option to Terminate Agreement.
In the event of an alleged Landowner Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Landowner with the
opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and
complying with Section 8.2 if Landowner timely appeals any Notice of Default with respect to a
non- monetary Default. A termination of this Agreement by City shall be valid only if good
cause exists and is supported by evidence presented to the City Council at or in connection with
a duly noticed public hearing to establish the existence of a Default. The validity of any
termination may be judicially challenged by Landowner. Any such judicial challenge must be
brought within sixty (60) days of service on Landowner, by personal delivery, delivery by a
reputable overnight delivery service (such as Federal Express) that provides a receipt confirming
delivery, or by certified mail, return receipt required, of written notice of termination by City or a
written notice of City's determination of an appeal of the Notice of Default as provided in
Section 8.2.
8.4 Default by City.
If Landowner alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Landowner may, in accordance with the provisions in Section 8.3 above,
pursue any equitable remedy available to it under this Agreement, including, without limitation,
an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations
set forth in this Agreement. Upon a City Default, any resulting delays in Landowner's
performance hereunder shall neither be a Landowner Default nor constitute grounds for
termination or cancellation of this Agreement by City and shall, at Landowner's option (and
provided Landowner delivers written notice to City within thirty (30) days of the commencement
of the alleged City Default), extend the Term for a period equal to the length of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre - existing condition once implementation of this Agreement has
begun. After such implementation, both Landowner and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Landowner and City have invested significant time
and resources and performed extensive planning and processing of the Project in agreeing to the
terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement. It is not possible to
determine the sum of money which would adequately compensate Landowner or City for such
efforts. For the above reasons, City and Landowner agree that damages would not be an
adequate remedy if either City or Landowner fails to carry out its obligations under this
Agreement. Therefore, specific performance of this Agreement is necessary to compensate
1121066751 -0090
3021844.12 a08/02/12
Kill
7E,
Landowner if City fails to carry out its obligations under this Agreement or to compensate City if
Landowner falls to carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party or for any acts or omissions by a Party arising out of
this Agreement; provided, however, that (i) nothing in this Section 8.7 is intended or shall be
interpreted to limit or restrict City's right to recover the Public Benefit Fees, Landowner's 14%
fair share traffic fee for City's construction of Bluff Road from 17"' Street to 19`h Street in
accordance with Section 3.4 (if applicable), and the Fire Station No. 2 Fee at such time that said
fees are due from Landowner as set forth herein; and (ii) nothing in this Section 8.7 is intended
or shall be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or
the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for Landowner's Default.
In the event of any Default by Landowner, in addition to any other remedies which may
be available to City, whether legal or equitable, City shall be entitled to retain any Development
Exactions applicable to the Project or the Property, including any fees, grants, dedications, or
improvements to public property which it may have received prior to Landowner's Default
without recourse from Landowner or its successors or assigns.
8.9 No Personal Liability of f City Officials, Employees, or Agents or Landowner Members,
Managers, Employees, or Agents.
No City official, employee, or agent and no member, manager, officer, employee, or
consultant of Landowner or of any of Landowner's respective members shall have any personal
liability hereunder for a Default by City or Landowner, as applicable, of any of its obligations set
forth in this Agreement.
8.10 Recovery of Legal Ex eenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action ") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' fees, and costs of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
9. Force Mai eure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
'12/066751 -0090
3021844.12 a08/02/12
31
74
or similar hostilities, acts of terrorism, strikes or other labor difficulties, state or federal
regulations, court actions, acts or omissions of the other Party, third party lawsuits, initiatives,
and referenda. Except as specified above, nonperformance shall not be excused because of the
act or omission of a third person. In no event shall the occurrence of an event of force majeure
operate to extend the deadline for commencement of the Term of this Agreement or the
Termination Date. In addition, in no event shall the time for performance of a monetary
obligation, including without limitation Landowner's obligation to pay Public Benefit Fees, be
extended pursuant to this Section.
10. Indemnity Obligations of Landowner.
10.1 Indemnity Arising From Acts or Omission of Landowner.
Except to the extent caused by the intentional misconduct or gross negligence of City or
one or more of City's officials, employees, agents, attorneys, lessees, or contractors (collectively,
"City's Affiliated Parties "), Landowner shall indemnify, defend, and hold harmless City and
City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties,
obligations, and expenses (including but not limited to attorneys' fees and costs) that may arise,
directly or indirectly, from the acts, omissions, or operations of Landowner or Landowner's
agents, contractors, subcontractors, agents, or employees in the course of Development of the
Project or any other activities of Landowner relating to the Property or pursuant to this
Agreement (collectively, a "Claim "). City shall have the right to select and retain counsel
reasonably acceptable to Landowner to defend any Claim filed against City and /or any of City's
Affiliated Parties, and Landowner shall pay the reasonable cost for defense of any Claim, but in
any event Landowner shall only be obligated to pay the fees and costs of one counsel irrespective
of any actual or perceived conflict of interest among the City's Affiliated Parties. The indemnity
provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Litigation.
ion.
In addition to its indemnity obligations set forth in Section 10.1, Landowner shall
indemnify, defend (with one counsel selected by City and reasonably acceptable to Landowner,
irrespective of any actual or perceived conflict of interest among the City's Affiliated Parties),
and hold harmless City and City's Affiliated Parties from and against any Claim against City or
City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this
Agreement, the Adopting Ordinance, any of the Development Regulations for the Project
(including without limitation any actions taken pursuant to CEQA with respect thereto), any
Subsequent Development Approval, or the approval of any permit granted pursuant to this
Agreement. Said indemnity obligation shall include payment of reasonable attorney's fees,
expert witness fees, and court costs. City shall promptly notify Landowner of any such Claim
and City shall cooperate with Landowner in the defense of such Claim. If City fails to promptly
notify Landowner of such Claim, Landowner shall not be responsible to indemnify, defend, and
hold City harmless from such Claim until Landowner is so notified and if City fails to cooperate
in the defense of a Claim Landowner shall not be responsible to defend, indemnify, and hold
harmless City during the period that City so fails to cooperate or for any losses attributable
thereto. City shall be entitled to retain separate counsel reasonably acceptable to Landowner to
represent City against the Claim and the City's defense costs for its separate counsel shall be
1121066751 -0090
3021844.12 a08/02112
32
715
included in Landowner's indemnity obligation, provided that such counsel shall reasonably
cooperate with Landowner in an effort to minimize the total litigation expenses incurred by
Landowner. In the event either City or Landowner recovers any attorney's fees, expert witness
fees, costs, interest, or other amounts from the party or parties asserting the Claim, Landowner
shall be entitled to retain the same (provided it has fully performed its indemnity obligations
hereunder). The indemnity provisions in this Section 10.2 shall commence on the Agreement
Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Agreement Date Landowner shall indemnify, defend (with one counsel selected by City and
reasonably acceptable to Landowner, irrespective of any actual or perceived conflict of interest
among the City's Affiliated Parties), and hold harmless City and City's Affiliated Parties from
and against any and all third party Claims filed against City and/or City's Affiliated Parties for
personal injury or death, property damage, economic loss, statutory penalties or fines, and
damages of any kind or nature whatsoever, including without limitation reasonable attorney's
fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the
actual or alleged presence of any Hazardous Substance on or under any of the Property in
violation of any applicable Environmental Law; (ii) the actual or alleged migration of any
Hazardous Substance from the Property through the soils or groundwater to a location or
locations off of the Property; and (iii) the storage, handling, transport, or disposal of any
Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or
developed by Landowner in connection with Landowner's Development of the Project. The
foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored on
a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in
Section 2.4 of this Agreement.
Notwithstanding any provision set forth in this Section 10.3 to the contrary, Landowner's
obligation to indemnify, defend, and hold harmless City and City's Affiliated Parties with
respect to Environmental Laws and Hazardous Substances shall not apply to any Claims arising
out of the actual or alleged acts or omissions of any person or entity other than Landowner or any
of Landowner's members, directors, officials, employees, agents, attorneys, lessees, or
contractors (collectively, "Landowner's Affiliated Parties ") with respect to oil drilling or
extraction operations conducted by, on, or from 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 10.3 shall commence on the Agreement Date,
regardless of whether the Effective Date occurs, and shall survive the Termination Date.
11. Assignment.
Landowner shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer ") Landowner's fee title to the Property, in whole or in part, to a Permitted Transferee
(which successor, as of the effective date of the Transfer, shall become the "Landowner" under
this Agreement) at any time from the Agreement Date until the Termination Date; provided,
1121066751 -0090
3021844.12 a08102112
33
70
however, that no such Transfer shall violate the provisions of the Subdivision Map Act
(Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such
Transfer shall include the assignment and assumption of Landowner's rights, duties, and
obligations set forth in or arising under this Agreement as to the Property or the portion thereof
so Transferred and shall be made in strict compliance with the following conditions precedent:
(i) no transfer or assignment of any of Landowner's rights or interest under this Agreement shall
be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to
the effective date of any proposed Transfer, Landowner (as transferor) shall notify City, in
writing, of such proposed Transfer and deliver to City a written assignment and assumption,
executed in recordable form by the transferring and successor Landowner and in a form subject
to the reasonable approval of the City Attorney of City (or designee), pursuant to which the
transferring Landowner assigns to the successor Landowner and the successor Landowner
assumes from the transferring Landowner all of the rights and obligations of the transferring
Landowner with respect to the Property or portion thereof to be so Transferred, including in the
case of a partial Transfer the obligation to perform such obligations that must be performed off
of the portion of the Property so Transferred that are a condition precedent to the successor
Landowner's right to develop the portion of the Property so Transferred. Any Permitted
Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of
Landowner under this Agreement with respect to the portion of the Property sold, transferred,
and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of
less than all of the Property no such Permitted Transferee shall have the right to enter into an
amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations
of the Landowner with respect to the balance of the Property.
Notwithstanding any Transfer, the transferring Landowner shall continue to be jointly
and severally liable to City, together with the successor Landowner, to perform all of the
transferred obligations set forth in or arising under this Agreement unless there is full satisfaction
of all of the following conditions, in which event the transferring Landowner shall be
automatically released from any and all obligations with respect to the portion of the Property so
Transferred: (i) the transferring Landowner no longer has a legal or equitable interest in the
portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the
transferring Landowner is not then in Default under this Agreement and no condition exists that
with the passage of time or the giving of notice, or both, would constitute a Default hereunder;
(iii) the transferring Landowner has provided City with the notice and the fully executed written
and recordable assignment and assumption agreement required as set forth in the first paragraph
of this Section 11; and (iv) the successor Landowner either (A) provides City with substitute
security equivalent to any security previously provided by the transferring Landowner to City to
secure performance of the successor Landowner's obligations hereunder with respect to the
Property or the portion of the Property so Transferred or (B) if the transferred obligation in
question is not a secured obligation, the successor Landowner either provides security reasonably
satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor
Landowner has the financial resources or commitments available to perform the transferred
obligation at the time and in the manner required under this Agreement and the Development
Regulations for the Project.
112/066751 -0090
3021644.12 OVUM
34
77
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Landowner in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Landowner or
other affirmative covenants of Landowner, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Landowner is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of. (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Landowner of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and
within sixty (60) days after receiving a Notice of Default with respect to a non- monetary Default.
If the Mortgagee can only remedy or cure a non- monetary Default by obtaining possession of the
Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and
continuity through a receiver or otherwise, and to remedy or cure the non - monetary Default
within thirty (30) days after obtaining possession and, except in case of emergency or to protect
the public health or safety, City may not exercise any of its judicial remedies set forth in this
Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of said
cure period. In 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 commences to cure
the non - monetary Default within sixty (60) days and diligently prosecutes the cure to
completion.
112/066751 -0090
3021849.12x08/02 /12
35
7LR
13. Miscellaneous Terms.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
TO LANDOWNER: Aera Energy LLC
Attn: Newport Banning Ranch LLC
3030 Saturn Street, Suite 101
Brea, California 92821
Attn: George L. Basye
TO LANDOWNER: Cherokee Investment Partners
Attn: Cherokee Newport Beach, LLC
111 E. Hargett Street, Suite 300
Raleigh, NC 27601
Attn: Bret Batchelder
With a copy to: Newport Banning Ranch LLC
1300 Quail Street, Suite 100
Newport Beach, California 92660
Attn: Michael A. Mohler
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13. 1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three
business days after deposit in the mail as provided above.
1121066751 -0090
3021844.12 a08 /02/12
9M
�J
13.2 Proiect as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of the property.
13.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
13.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default. Such estoppel certificates may be relied upon only by the Parties, their
respective successors and assigns, and, in the event of an estoppel certificate issued by City, a
Mortgagee of Landowner, including a Permitted Transferee and its actual or prospective
Mortgagee. City shall be entitled to payment/reimbursement for its actual and reasonable costs
of investigation and preparation 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
certificate to be issued by City, Landowner has paid City the cost thereof, as provided above).
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
112/066751 -0090
3021844.12 a08/02/12
37
20
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
13.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
13.10 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Landowner shall not receive any
of the benefits of this Agreement if any of Landowner's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Landowner shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Landowner's obligations under this Agreement. The provisions
of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
13.11 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Landowner are sophisticated parties who were represented by independent counsel throughout
the negotiations or City and Landowner had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Landowner each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against either Party.
112/066751 -0090
3021844.12 a08/02112
M
R2
13.12 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii)
runs with the Property and each portion thereof, and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assigmnent and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Landowner. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
1121066751-0090
3021844.12 a08/02/12
39
22
EXHIBIT
DESIGNATION
DESCRIPTION
A
Legal Description of Property
B
Depiction of the Property
B -1
Depiction of County Property
13.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
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.
112/066751 -0090
3021844.12x08/02 /12
[SIGNATURE PAGE FOLLOWS]
MA
2-2�
SIGNATURE PAGE TO
ZONING IMPLEMENTATION AND PUBLIC BENEFIT SPACE AGREEMENT
:►1* J► G
AERA ENERGY LLC,
a California limited liability company
Its:
I
Its:
CHEROKEE NEWPORT BEACH, LLC, a
Delaware limited liability company
0
Its:
Its:
"CITY"
ATTEST:
City Clerk
rv����,
Aaron Harp, City Attorney / 11
112/066751 -0090
3021869.12 070/12
41
CITY OF NEWPORT BEACH
Its: Mayor
24
SIGNATURE PAGE TO
ZONING IMPLEMENTATION AND PUBLIC BENEFIT SPACE AGREEMENT
"LANDOWNER"
AERA ENERGY LLC,
a California limited liability company
By:
Its:
By: 2.
Its: V i cc �rc-r�
CHEROKEE NEWPORT BEACH, LLC, a
Delaware limited liability company
C
Its:
E-02
Its:
"CITY"
CITY OF NEWPORT BEACH
im
Its: Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney
1 12/066751 -0090 41
3021844.12 a07 /10 112
25
CALOfo ORNBA ALL- PURPOSE ACKNOWLEDGMENT
[ANT
State of California
County of Or"e. n
On - Qu elf a161'a before me,
a Meo PFCki Qm
Dale H re sera Name and idle as the unice,
personally appeared V(j n 1 4s) of S S eh u 1+2_
igners)
,r IRY
4 "9 I,Mr`s - P
Place Notary Seal Aleave
who proved to me on the basis of satisfactory evidence to
be the person;4 whose nameX is /are subscribed to the
within instrument and acknowledged to me that
he /aheAhey executed the same in his /her4hpif- authorized
capacity, and that by his /hea/t)eir signaturWon the
instrument the personX, or the entity upon behalf of
which the person;,s' acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s): —
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
IRIGHTjTHUMBPRINrr
�- 70iasldNERt —'
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Top of thumb here
02007 National Notary ASSm:i8tl0n•9350 Be Soto Ave.. P.O. Box 2402• Chatsanuth. CA 913134402• v .NalionalNolaryorg Ilem 95907 Reorder. Call ToliFree I40P676-6627
20
(CALU FORNSA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of 0 Y-"3 e-
On (a aol before me, RecG_- 1C(_M
Dale H nsert Name and Title of the uhicer
personally appeared P .
etsl of Signags)
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the persona) whose namW is /are subscribed to the
within instrument and acknowledged to me that
he /shedttey.executed the same in his /#terlfhek authorized
capacit!llAw, and that by his /berJthai, signatuV on the
instrument the personae)', or the entity upon behalf of
which the person
W acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature (P_2 —
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached nDo-cument //�J
Title or Type of Document: Atyl e1�6,O�rri�.n� aau& it 724 . DA coos- 003
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
' HTjTHUMBPRWrr
�_— :GFiSIGNERI -
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General _
❑ Attorney in Fact
❑ Trustee Top or thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
02007 National Notary Association- 9350 De Soto Ava.P.O.Bw 24M- Charavorlq CA 91313.2402•vavv,.NalienalNolerymg Item45907 Rwo er.Call Tell- Freel- 600. 876 -8827
27
SIGNATURE PAGE TO
ZONING IMPLEMENTATION AND PUBLIC BENEFIT SPACE AGREENIENT
"LANDOWNER"
AERA ENERGY LLC,
a California limited liability company
Its:
10
CHEROKEE NEWPORT BEACH, LLC, a
Delaware limited liability company
By:i`1� �iN (iLL
Its: ��, �P i pe,<9 e� U 1
By:
Its:
"CITY"
CITY OF NEWPORT BEACH
M
Its: Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney
1121066751 -0090 4
302 18114. 12 a07 02'12
RR
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to 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
NO/�/f C��ocin/vP•
STATE OF C
COUNTY OFD W,1415'
On 07 1 before me, the undersigned, a Notary Public in and for said State,
perscVally ap eared &eel' c -P-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.
G.Q. `� • / �' La -e-- -.
Notary Public in and for 14Np1('t- IF"
said County and State
112,066751 -0090
3021844.12 a07,02/12
-42-
AlMlia P. 11
I SolarV Public, North C0911 Wahe CounIV
MV Commisulon Ehplves
0®bru 14.8 ®1
g9
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to 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 CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
ar
to me to be the persons whose names e subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
112/066751 -0090
3021844.12 a08 102112
-42-
90
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to 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 CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
1121066751 -0090
302199.12 a08102/12
SD \611846.4
-43-
91
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
112/066751 -0090
3021844.12 a08102/12
SD \611846.4
SCE
92
EXHIBIT A
LEGAL (DESCRIPTION OF PROPERTY
Real property in the unincorporated area of the County of Orange, State of California, described
as follows:
PARCEL It
A PORTION OF LOTS "B ", "C' AND "D ", ALL IN THE BANNING TRACT, AS SHOWN ON A MAP OF
SAID TRACT FILED IN THE CASE OF HANCOCK BANNING AND OTHERS VS. MARY H. BANNING,
FOR PARTITION, BEING CASE NO. 6385 UPON THE REGISTER OF ACTIONS 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 POINT 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 LINE 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 IV EAST 1058.48 FEET; THENCE
SOUTH 19 DEGREES 45' WEST 529.21 FEET; THENCE SOUTH 34 DEGREES 30' WEST 463.08
FEET; THENCE SOUTH 42 DEGREES 45' WEST 397.00 FEET; THENCE SOUTH 4 DEGREES 45'
WEST 462.00 FEET; THENCE SOUTH 21 DEGREES 15' WEST 198.50 FEET TO THE SOUTHWEST
CORNER OF LOT "B ", AS SHOWN ON SAID MAP OF THE BANNING TRACT, WHICH CORNER IS
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 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. 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 BEEN
RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS, WITH THE
SOUTHEASTERLY LINE OF SUMMIT STREET, 30 FEET IN WIDTH, AS SHOWN 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 SANTA ANA RIVER AND 600.00 FEET DISTANT
THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND
DISTANCES: SOUTH 78 DEGREES 02' EAST 486.60 FEET; THENCE SOUTH 66 DEGREES 42' 20"
EAST 517.33 FEET; THENCE NORTH 20 DEGREES U6' 15" EAST 539.49 FEET; THENCE NORTH 51
DEGREES 48' EAST 405.76 FEET; THENCE NORTH 74 DEGREES 07' EAST 722.86 FEET; THENCE
SOUTH 45 DEGREES 20' 28" EAST 740.97 FEET; THENCE SOUTH 27 DEGREES 46 EAST 498.37
FEET, THENCE SOUTH 13 DEGREES 3540" EAST 820.19 FEET, THENCE SOUTH 1 DEGREE 38'
2S" WEST 871.22 FEET TO A POINT IN A LINE 600.00 FEET NORTHERLY OF AND PARALLEL
WITH THE NORTHERLY LINE OF THE 100 -FOOT RIGHT OF WAY OF THE CALIFORNIA 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
112/066751 -0090.
3021844.12.a08/02/12
93
NORTHEASTERLY LINE OF SAID CALIFORNIA STATE HIGHWAY, THE FOLLOWING COURSES
AND DISTANCES: THENCE 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, HAVING A RADIUS OF 1650.00 FEET AND TANGENT TO THE LAST MENTIONED
COURSE, A DISTANCE OF 500.12 FEET; THENCE SOUTH 65 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
1650.00 FEET AND TANGENT 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 S, PAGE 1 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA, A RADIAL LINE FROM SAID POINT BEARS SOUTH 25 DEGREES 44' 43" WEST;
THENCE NORTH 0 DEGREES 36'01" WEST ALONG THE SAID PROLONGATION OF WHITTIER
AVENUE, 3061.05 FEET TO A POINT IN THE SOUTHWESTERLY LINE OF SAID FIRST ADDITION
TO NEWPORT MESA TRACT; THENCE NORTH 29 DEGREES 24'45" WEST ALONG THE
SOUTHWESTERLY LINE OF SAID FIRST ADDITION TO THE NEWPORT MESA TRACT, 2706.70
FEET TO THE MOST WESTERLY CORNER OF SAID FIRST ADDITION TO THE NEWPORT MESA
TRACT; THENCE NORTH 19 DEGREES 01'55" 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 DESCRIBED 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, 1911 IN BOOK 197, PAGE 300 OF DEEDS,
ORANGE COUNTY, WHICH POINT IS NORTH 71 DEGREES 20' EAST 510.47 FEET FROM THE
SOUTHWEST CORNER OF SAID LOT "B ", WHICH LAST MENTIONED CORNER IS ALSO STATION
149 OF THE RANCHO SANTIAGO DE SANTA ANA; THENCE NORTH 13 DEGREES 25' EAST ALONG
THE EASTERLY LINE OF SAID 300 -FOOT STRIP OF LAND, 660 FEET; THENCE SOUTH 76
DEGREES 35' EAST 660 FEET; THENCE SOUTH 13 DEGREES 25 WEST 660 FEET; THENCE
NORTH 76 DEGREES 35 WEST 660 FEET TO THE POINT OF BEGINNING, AS CONDEMNED BY
THE CITY OF NEWPORT BEACH IN THE ACTION ENTITLED "CITY 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, 300 FEET WIDE, BY DEED RECORDED JUNE 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 135.84 FEET DISTANT FROM THE SOUTHWESTERLY
CORNER OF SAID LOT "B ", WHICH CORNER IS ALSO STATION 149 OF THE RANCHO SANTIAGO
DE SANTA ANA; THENCE 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 38.70
FEET TO AN ANGLE IN SAID WESTERLY LINE; THENCE NORTH 34 DEGREES 30' EAST 462.00
FEET TO AN ANGLE IN SAID WESTERLY LINE; THENCE NORTH 19 DEGREES 45' EAST 526.00
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
112/066751.0090
3021841.12x08/02 /12
9`F"
SAID RIGHT OF WAY, 607.27 FEET TO A POINT IN THE WESTERLY LINE OF SAID LOT "B'
THENCE ALONG THE WESTERLY LINE OF SAID LOT "B ", NORTH 34 DEGREES 1S' EAST 148.48
FEET TO AN ANGLE IN SAID LINE; THENCE NORTH 1 DEGREE 45' EAST 436.44 FEET TO THE
NORTHWEST CORNER OF SAID LOT "B'; THENCE ALONG THE NORTHERLY LINE OF SAID LOT
"B ", NORTH 89 DEGREES 28' EAST 346.14 FEET TO A POINT I. J THE EASTERLY LINE OF SAID
300 -FOOT RIGHT OF WAY, THENCE SOUTH 13 DEGREES 25' WEST 3831.55 FEET TO THE
SOUTHERLY LINE OF SAID LOT "B "; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT "B ",
NORTH 84 DEGREES 45' WEST 303.08 FEET TO THE POINT OF COMMENCEMENT.
ALSO EXCEPTING THEREFROM, THE PORTIONS THEREOF INCLUDED WITHIN A STRIP OF LAND
30 FEET IN WIDTH, THE CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT
THE POINT WHERE THE EASTERLY BOUNDARY LINE OF THE RANCHO LAS BOLSAS BETWEEN
STATIONS 78 AND 79 OF THE SAID BOUNDARY LINE IS 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 ON THE SURVEYED CENTER LINE OF THE SANTA
ANA- ANAHEIM JOINT OUTFALL SEWER; THENCE FROM SAID POINT OF BEGINNING, SOUTH 13
DEGREES 26'30" WEST ALONG SAID CENTER LINE TO STATION 187 +74.49, BEING THE POINT
ON THE SOUTH LINE OF SAID SECTION 18, 2294.92 FEET NORTH 89 DEGREES 38' EAST FROM
THE SOUTH QUARTER CORNER OF SAID SECTION; THENCE CONTINUING SOUTH 13 DEGREES
26' 30" WEST ALONG SAID SURVEYED CENTER LINE, 2795.66 FEET TO STATION 215 +70.15;
THENCE SOUTH 16 DEGREES 2730" 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 DISTRICT,
AS CONVEYED TO THE CITY OF SANTA ANA BY DEED RECORDED APRIL 14, 1934 IN BOOK 670,
PAGE 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 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 ORANGE, 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 WAS RECORDED JANUARY 30, 1962 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, 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
ORANGE COUNTY, CALIFORNIA.; THENCE SOUTH 89 DEGREES 21' 50" WEST 16.51) FEET TO
112/066751 -0090
3021841.12 a0 8/02/12
2
95
THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF
500.00 FEET; THENCE WESTERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 28 DEGREES
48' 33 ', A DISTANCE OF 251.41 FEET TO A LINE TANGENT; THENCE SOUTH 60 DEGREES 33'
17" WEST ALONG SAID LINE TANGENT, A DISTANCE OF 404.60 FEET; THENCE NORTH 29
DEGREES 26' 43 WEST 804.50 FEET; THENCE NORTH 60 DEGREES 33' 17" EAST 300,00 FEET;
THENCE SOUTH 88 DEGREES 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 FROM 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 90.00 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 0 DEGREES 38' 10" WEST 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 2643" EAST
ALONG SAID SOUTHWESTERLY 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 SCHOOL DISTRICT OF ORANGE COUNTY, CALIFORNIA VS.
SECURITY FIRST NATIONAL BANK, ETC., AND OTHERS" (CASE NO. 123141), A CERTIFIED COPY
OF WHICH ORDER WAS RECORDED AUGUST 5, 1965 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 TRACT, AS SHOWN ON A MAP FILED IN THE CASE
OF HANCOCK BANNING AND OTHERS VS. MARY H. BANNING, FOR PARTITION, BEING CASE
NO. 6385 UPON THE REGISTER OF ACTIONS OF THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA, IN AND FOR LOS ANGELES COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT B; THENCE SOUTHERLY ALONG
THE WESTERLY BOUNDARY OF SAID LOT B, SOUTH 01 DEGREE 45' 00" WEST 462.00 FEET TO
RANCHO LAS BOLSAS, STATION 75, AND SOUTH 34 DEGREES 15' 00" WEST 462.95 FEET TO
RANCHO LAS BOLSAS, STATION 74, BEING THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID WESTERLY BOUNDARY, SOUTH 06 DEGREES 15' 00" EAST TO THE
WESTERLY LINE OF THE STRIP OF LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA,
RECORDED APRIL 14, 1934 IN BOOK 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
IS' 00" WEST 462.95 FEET"; THENCE ALONG SAID CERTAIN COURSE, SOUTH 34 DEGREES 15'
00 WEST TO THE TRUE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED AS PARCELS 100, 103, 106 AND
108 IN THE NOTICE OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NO. CV 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 NOT LIMITED TO, ALL PETROLEUM, OIL, NATURAL GAS, AND OTHER
HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WITH THE
RIGHT OF INGRESS AND EGRESS, UPON, OVER AND BENEATH THE SURFACE OF SAID LAND, AT
112/066751 -0090
3021844.12 a08/02112
90
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 500 FEET, AS RESERVED IN THE DEED EXECUTED BY 'HANCOCK
BANNING JR. AND OTHERS, DATED AUGUST 1, 1958, RECORDED AUGUST 29, 1958 IN BOOK
44(H), PAGE 532, AND RE- RECORDED OCTOBER 6, 1958 IN BOOK 4437, PAGE 228, AS
AMENDED BY THE DEED AND AGREEMENT EXECUTED BY HANCOCK BANNING JR_ AND OTHERS,
RECORDED DECEMBER 27, 1961 IN BOOK 5957, PAGE 665, ALL IN OFFICIAL RECORDS,
ORANGE COUNTY.
PARCEL 2:
BEGINNING AT THE SOUTHWEST CORNER OF THAT CERTAIN LAND AS DESCRIBED IN PARCEL
1 IN DEED FROM HANCOCK BANNING JR. 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, 1958 IN BOOK 4437, PAGE 228 OF OFFICIAL RECORDS, ORANGE
COUNTY, ALSO BEING THE SOUTHWEST CORNER OF LOT "B" OF THE BANNING TRACT, AS
SHOWN ON THE 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, CALIFORNIA, WHICH CORNER IS ALSO STATION 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 ALONG THE
SOUTHERLY LINE OF SAID PARCEL 1, SOUTH 72 DEGREES 51' 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. 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 BEEN RECORDED JULY 19, 1929 IN BOOK 297, PAGE 76 OF OFFICIAL RECORDS,
WITH THE SOUTHEASTERLY LINE OF SUMMIT STREET, 30 FEET IN WIDTH, AS SHOWN 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 SANTA ANA RIVER AND
600.00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING
COURSES AND DISTANCES: SOUTH 78 DEGREES 02' EAST 486.60 FEET; SOUTH 66 DEGREES
42' 20" EAST 517.33 FEET; NORTH 20 DEGREES 06' 15" EAST 539.49 FEET, NORTH 51
DEGREES 48' EAST 405.76 FEET; NORTH 74 DEGREES 07' FAST 722.86 FEET; SOUTH 45
DEGREES 20 28" EAST 740.97 FEET; SOUTH 27 DEGREES 46' EAST 498.37 FEET, SOUTH 13
DEGREES 35'40"' EAST 820.19 FEET, 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
100 -FOOT 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;
THENCE SOUTHEASTERLY, PARALLEL WITH THE NORTHERLY AND NORTHEASTERLY LINE OF
SAID CALIFORNIA STATE HIGHWAY, THE FOLLOWING COURSES AND DISTANCES: SOUTH 83
DEGREES 16' EAST 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
1650.00 FEET AND TANGENT TO THE LAST MENTIONED COURSE, A DISTANCE OF 500.12 FEET;
THENCE SOUTH 65 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 1650.00 FEET, AND TANGENT TO THE LAST
MENTIONED COURSE, A DISTANCE OF 48.34 FEET TO A POINT IN THE SOUTHERLY
PROLONGATION OF THE EASTERLY LINE OF WHILTIER AVENUE (60 FEET IN WIDTH), AS
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
112/066751 -0090
3021844.12 a08102/12
0
97
LINE FROM SAID POINT BEARS SOUTH 25 DEGREES 44' 43" WEST, WHICH POINT IS THE
SOUTHEAST CORNER OF SAID PARCEL 1; THENCE SOUTH 0 DEGREES 36'01" EAST ALONG THE
SAID PROLONGATION OF WHTTTIER AVENUE, 404.46 FEET TO AN INTERSECTION SMITH THE
NORTHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 250 FEET IN WIDTH, AS DESCRIBED
IN PARCEL 1, ARTICLE II OF SAID DEED RECORDED AUGUST 29, 1958 IN BOOK 4400, PAGE
532 OF OFFICIAL RECORDS, 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 33 DEGREES 40'54" WEST; THENCE ALONG THE
NORTHEASTERLY, NORTHERLY, NORTHWESTERLY AND NORTHERLY LINE OF SAID PARCEL 1,
ARTICLE II, THROUGH THE FOLLOWING COURSES AND DISTANCES: NORTHWESTERLY ALONG
A CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1300.00 FEET, THROUGH AN
ANGLE OF 9 DEGREES 36'54!', A DISTANCE OF 218.16 FEET TO A LINE TANGENT THERETO;
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 13(X).00 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;
THENCE 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 LINE PARALLEL WITH THE SAID CENTERLINE OF THE SANTA ANA RIVER, AND
250.00 FEET DISTANT EAST THEREFROM, MEASURED AT RIGHT ANGLES THERETO, A RADIAL
LINE FROM SAID POINT BEARS NORTH 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 FOLLOWING 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; SOUTH 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 258.16 FEET, SOUTH 42 DEGREES 06' 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 25().00
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, MEASURED AT RIGHT ANGLES THERETO, THE
FOLLOWING COURSES AND DISTANCES: NORTH 60 DEGREES 52' 34" WEST 120.39 FEET;
NORTH 64 DEGREES 06' SW WEST 216.59 FEET TO A POINT IN THE EASTERLY LINE OF THE
EASEMENT FOR THE PURPOSE OF MAINTAINING A RIVER CHANNEL OVER A STRIP OF LAND
300 FEET WIDE, IN FAVOR OF NEWBERT PROTECTION DISTRICT, AS DESCRIBED IN THE
INTERLOCUTORY DECREE OF PARTITION DATED JULY 19, 1929, A CERTIFIED COPY OF WHICH
1121066751 -0090
3021844.12 x08102/12
92
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 II; THENCE SOUTH 13 DEGREES 25` WEST ALONG SAID EASTERLY LINE OF THE RIVER
CHANNEL, 256.04 FEET TO THE MOST SOUTHWESTERLY CORNER OF SAID PARCEL 1, ARTICLE
II; THENCE NORTH 64 DEGREES 06' So " WEST ALONG THE NORTHERLY LINE OF SAID BLOCK C
OF EL MORO TRACT, 16.02 FEET TO AN INTERSECTION WITH THE NORTHEASTERLY LINE OF
THE 100 —FOOT RIGHT OF WAY OF CALIFORNIA STATE HIGHWAY; THENCE NORTH 54 DEGREES
02' WEST ALONG SAID HIGHWAY RIGHT OF WAY LINE, 145.48 FEET TO THE CENTER LINE OF
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 356, PAGE 31 OF OFFICIAL RECORDS, ORANGE
COUNTY; THENCE NORTH 74 DEGREES 17' WEST 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 COUNTY; THENCE NORTH
15 DEGREES 43' EAST ALONG THE SAID SOUTHERLY EXTENSION OF THE WESTERLY
BOUNDARY LINE OF RANCHO 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 EXTERIOR BOUNDARIES OF THE RANCHO SANTIAGO DE
SANTA ANA, OR WITHIN THE EXTERIOR BOUNDARY LINES OF GOVERNMENT LOT 1, SECTION
19; GOVERNMENT LOT 1, SECTION 20; AND GOVERNMENT LOT 1, SECTION 29, ALL IN
TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN.
ALSO EXCEPTING THEREFROM, THAT PORTION OF SAID LAND INCLUDED WITHIN 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 ORANGE, 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 COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED AS PARCELS IOU, 103, 106 AND
108 IN THE NOTICE OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NO. CV 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 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 SOD 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 3:
112/06675"090
3021844.12 a08/02/12
99
A STRIP OF LAND 250 FEET WIDE, DESCRIBED AS FOLLOWS:
BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHERLY LINE OF BLOCK C OF EL
MORO TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 75 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AND THE EASTERLY LINE OF THE
EASEMENT FOR THE PURPOSE OF MAINTAINING A RIVER CHANNEL OVER A STRIP OF LAND
300 FEET WIDE, IN FAVOR OF NEWBERT PROTECTION DISTRICT, AS DESCRIBED IN THE
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 SOUTH
64 DEGREES 06'50" EAST, ALONG THE NORTHERLY LINE OF SAID EL MORO TRACT, 154.24
FEET; THENCE CONTINUING ALONG THE LAST MENTIONED NORTHERLY LINE, SOUTH 60
DEGREES 52'34n EAST 151.04 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF SUMMIT
STREET, 30.00 FEET IN WIDTH, AS SHOWN ON THE MAP OF SAID EL MORO TRACT, SAID
POINT BEING IN THE CENTER LINE OF THE SANTA ANA RIVER, AS SHOWN ON A MAP FILED IN
AND ANNEXED TO THE COMPLAINT IN CASE OF J. 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, PAGE 76 OF OFFICIAL RECORDS, ORANGE'COUNTY;
THENCE SOUTH 78 DEGREES 02' EAST ALONG THE SAID CENTER LINE OF THE SANTA ANA
RIVER, 517.61 FEET, THENCE CONTINUING ALONG THE SAID CENTER LINE OF THE SANTA ANA
RIVER, SOUTH 66 DEGREES 42' 20" EAST 644.09 FEET TO A POINT IN THE NORTHERLY 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; THENCE EASTERLY AND
NORTHEASTERLY ALONG THE NORTHERLY AND NORTHWESTERLY LINE OF SAID TRACT
NO.772, THE FOLLOWING COURSES AND DISTANCES: SOUTH 88 DEGREES 25' EAST 105.91
FEET; NORTH 72 DEGREES 45' EAST 268.62 FEET; NORTH 42 DEGREES 06' EAST 228.36 FEET;
NORTH 29 DEGREES O6' EAST 306.31 FEET TO A POINT IN THE SAID CENTER LINE OF THE
SANTA ANA RIVER; THENCE ALONG THE SAID CENTER LINE OF THE SANTA ANA RIVER, THE
FOLLOWING COURSES AND DISTANCES: NORTH 20 DEGREES 06' 15" EAST 267.71 FEET;
NORTH 51 DEGREES 48' EAST 117,09 FEET; NORTH 74 DEGREES 07' EAST 254.30 FEET; SOUTH
45 DEGREES 20' 28" EAST 298.02 FEET; SOUTH 27 DEGREES 46' EAST 331.04 FEET; SOUTH 13
DEGREES 35'40" EAST 665.36 FEET; SOUTH 1 DEGREE 38'25" WEST 1205.19 FEET; SOUTH 10
DEGREES 4730" EAST 116.85 FEET TO A POINT IN THE NORTHERLY LINE OF THE 100 -FOOT
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 20'43" EAST; THENCE ALONG THE
NORTHERLY AND NORTHEASTERLY LINE OF SAID CALIFORNIA STATE HIGHWAY, THE
FOLLOWING COURSES AND DISTANCES: EASTERLY ALONG A CURVE CONCAVE TO THE
NORTHEAST AND HAVING A RADIUS OF 950.00 FEET, A DISTANCE OF 209.67 FEET; SOUTH 83
DEGREES 18' EAST, TANGENT TO SAID CURVE, 646.66 FEET TO THE BEGINNING OF A CURVE
TO THE RIGHT, SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND
HAVING A RADIUS OF 1050.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A
DISTANCE OF 318.26 FEET, SOUTH 65 DEGREES 56' EAST, TANGENT TO SAID CURVE, 667.15
FEET TO THE BEGINNING OF A CURVE TO THE RIGHT, SOUTHEASTERLY ALONG A CURVE
CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF 1050.00 FEET, AND TANGENT TO
THE LAST MENTIONED COURSE, A DISTANCE OF 216.09 FEET; SOUTH S4 DEGREES OS' 30"
FAST 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, AND TANGENT TO
THE LAST MENTIONED COURSE, A DISTANCE OF 264.46 FEET; SOUTH 711 DEGREES OS' 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
11210 66 75 1-00 90
3021844.12 a08/02/12
7
100
OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, CALIFORNIA; THENCE LEAVING
SAID CALIFORNIA STATE HIGHWAY, NORTH 39 DEGREES 43'45" EAST, ALONG THE
SOUTHEASTERLY BOUNDARY LINE OF SAID LOT D OF BANNING TRACT, 265.74 FEET TO A
POINT, BEING 250.00 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 05'30" 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
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, A RADIAL LINE FROM SAID POINT BEARS
NORTH 26 DEGREES 10'42" 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 176.40 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL OF LAND,
NORTH 5 DEGREES 44` 28" WEST 104.32 FEET TO A POINT IN A LINE PARALLEL WITH THE
NORTHEASTERLY LINE OF SAID STATE HIGHWAY, AND 250.00 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 05'30" 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 700.00 FEET, AND TANGENT TO THE LAST MENTIONED COURSE, A
DISTANCE OF 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 MENTIONED COURSE, A DISTANCE OF 267.55 FEET; NORTH 65
DEGREES 56' %IVEST, TANGENT TO THE SAID CURVE, 667.15 FEET TO THE BEGINNING OF A
CURVE TO THE LEFT, WESTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST AND HAVING
A RADIUS OF 1300.00 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 LINE PARALLEL WITH THE
SAID CENTER LINE OF THE SANTA ANA RIVER, AND 250.00 FEET DISTANT THEREFROM,
MEASURED AT RIGHT ANGLES THERETO, A RADIAL LINE FROM SAID POINT BEARS NORTH 6
DEGREES 53'29" FAST; 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 1 DEGREE 38'25" FAST 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, SOUTH 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 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 DEGREES 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' 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 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
1 12/066751 -0090
3021844.12a08/02/12
101
THERETO, THE FOLLOWING COURSES AND DISTANCES: NORTH 66 DEGREES 42' 20" WEST
620.94 FEET; NORTH 78 DEGREES O2' WEST 5114.69 FEET TO A POINT IN A LINE PARALLEL
WITH THE SAID NORTHERLY LINE OF BLOCK C, EL MORO TRACT, AND 250.00 FEET DISTANT
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
THEREFROM, MEASURED AT RIGHT ANGLES THERETO, THE FOLLOWING COURSES AND
DISTANCES: NORTH 61) DEGREES 52'34" WEST 120.39 FEET, AND NORTH 64 DEGREES 06'50"
WEST 216.59 FEET TO POINT IN THE EASTERLY LINE OF SAID EASEMENT 300.00 FEET
WIDE, FOR PURPOSE OF MAINTAINING THE SANTA ANA RIVER CHANNEL; THENCE SOUTH 13
DEGREES 25' WEST ALONG SAID EASTERLY LINE OF THE RIVER CHANNEL, 256.04 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 30, 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 SANTIAGO 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 6 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 THE 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 COUNTY FLOOD CONTROL
DISTRICT VS. CITY OF NEWPORT BEACH AND OTHERS' (CASE NO. 77399), A CERTIFIED COPY
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 THE LAND 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 COPY 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
108 IN THE NOTICE OF LIS PENDENS, UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA CASE NO. CV 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.
112/066751 -0090
3021844.12 a08102/12
0
102
ALSO EXCEPTING THEREFROM THOSE PORTIONS CONVEYED TO ORANGE COUNTY
SANITATION DISTRICT, A COUNTY SANITATION DISTRICT ORGANIZED AND EXISTING
PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 4700 ET SEQ. AS
DISCLOSED BY ON DOCUMENT RECORDED AUGUST 30, 2006 AS INSTRUMENT NO.
2006000582598 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM, AN UNDIVIDED 30% INTEREST IN AND TO 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 FROM SAID LAND LOCATED BELOW A DEPTH OF 6200 FEET, BUT WITHOUT THE
RIGHT TO USE THE SURFACE OF SAID LAND DOWN TO A DEPTH OF 500 FEET, AS RESERVED
IN THE DEED FROM HANCOCK BANNING JR. 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, 1958 IN BOOK 4437, PAGE 228 OF OFFICIAL RECORDS, ORANGE
COUNTY, 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 COUNTY.
ALSO EXCEPTING THEREFROM, AN UNDIVIDED 70% INTEREST IN AND TO 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 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 500 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 BANNING TRACT, AS SHOWN ON THE 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,
BEING ALSO A PORTION OF LOT I 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, AND A PORTION OF TRACT NO. 2250, AS SHOWN ON A MAP RECORDED IN BOOK
104, PAGES 6 AND 7 OF MISCELLANEOUS 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 COUNTY,
CALIFORNIA, WHICH CORNER IS IN THE CENTER LINE OF SUPERIOR AVENUE, FORMERLY
NEWPORT AVENUE, AS SAID NEWPORT AVENUE IS SHOWN ON SAID MAP OF TRACT NO. 15,
AND ALSO IN THE SOUTHEASTERLY LINE OF SAID LOT D IN THE BANNING TRACT; THENCE
NORTH 29 DEGREES 24' 45" WEST ALONG THE NORTHEASTERLY LINE 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" EA5F ALONG THE SOUTHERLY
112/066751 -0090
3021844.12 a08/02/12 10
10J
PROLONGATION OF THE SAID EASTERLY LINE OF WHITTIER 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 BOOK
4400, PAGE 532 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,
250.00 FEET NORTHEASTERLY OF AND PARALLEL WITH THE NORTHEASTERLY LINE OF THE
100 -FOOT 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 OF INTERSECTION BEARS SOUTH 33 DEGREES 40' S4"
WEST; THENCE SOUTHEASTERLY, PARALLEL WITH THE NORTHEASTERLY LINE OF SAID STATE
HIGHWAY, AND 250,00 FEET DISTANT THEREFROM, MEASURED AT RIGHT ANGLES THERETO,
THE FOLLOWING COURSES AND DISTANCES: THENCE SOUTHEASTERLY ALONG A CURVE
CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 1300.00 FEET, 49.39 FEET; THENCE
SOUTH 54 DEGREES 08'30" EAST, TANGENT TO SAID CURVE, 387.05 FEET TO BEGINNING OF
CURVE TO THE LEFT; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE
NORTHEAST, HAVING A RADIUS OF 700.00 FEET, AND TANGENT TO THE LAST MENTIONED
COURSE, 194.87 FEET; THENCE SOUTH 70 DEGREES 05' 30" EAST, TANGENT TO SAID CURVE,
376.41 FEET TO A POINT IN THE WESTERLY LINE OF THAT CERTAIN 2.7827 -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 20 DEGREES 20' 15" WEST, THENCE
NORTHEASTERLY ALONG A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF
450.00 FEET, 235.10 FEET; THENCE NORTH 39 DEGREES 43'45" EAST, 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" EAST,
TANGENT TO THE LAST MENTIONED CURVE, 122.00 FEET TO A POINT IN THE
NORTHWESTERLY LINE OF SUPERIOR AVENUE, 60 FEET IN WIDTH, FORMERLY NEWPORT
AVENUE, AS SAID NEWPORT AVENUE 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 50 DEGREES 16' 15"
EAST 30.00 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 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
112/066751 -0090
3021844.12 a08102/12
II
104
ORANGE COUNTY, CALIFORNIA; THENCE SOUTH 89 DEGREES 21'50" WEST 16.50 FEET TO
THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF
500.00 FEET; THENCE WESTERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 28 DEGREES
48'33", A DISTANCE OF 251.41 FEET TO A LINE TANGENT; THENCE SOUTH 60 DEGREES 33'
17" WEST ALONG SAID LINE TANGENT, A DISTANCE OF 404.60 FEET- THENCE NORTH 29
DEGREES 26'43H WEST 804.S0 FEET; THENCE NORTH 60 DEGREES 33' 17" EAST 300.00 FEET;
THENCE SOUTH 88 DEGREES 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 FROM 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 90.00 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 0 DEGREES 38' 10" WEST 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 BOUNDARY LINE, A DISTANCE OF 789.32 FEET TO THE POINT
OF BEGINNING.
ALSO EXCEPTING 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 FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTER LINE OF FIFTEENTH STREET WITH THE
CENTER LINE OF MONROVIA AVENUE, AS SHOWN ON A MAP RECORDED IN BOOK 65, PAGES
31 THROUGH 36 INCLUSIVE OF RECORD OF SURVEYS IN 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
LINE OF SAID TRACT NO. 463; THENCE NORTH 29 DEGREES 26'43" WEST ALONG SAID
NORTHEASTERLY LINE, 272.61 FEET TO THE TRUE POINT OF BEGINNING OF THIS
DESCRIPTION; THENCE SOUTH 29 DEGREES 26'43" 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 LINE 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. CHAFFEY AND OTHERS, RECORDED IN BOOK 4228, PAGE 191 OF OFFICIAL
RECORDS OF SAID ORANGE COUNTY, AND THE SOUTHEASTERLY PROLONGATION THEREOF,
152.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND
HAVING A RADIUS OF 730.00 FEET; THENCE NORTHWESTERLY 130.21 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 ORANGE COUNTY; THENCE ALONG SAID
NORTHEASTERLY LINE, NORTH 63 DEGREES 11' 16" WEST 1160.70 FEET TO A POINT IN A LINE
PARALLEL W1lH AND DISTANT 100.00 FEET EASTERLY, AS MEASURED AT RIGHT ANGLES
FROM THE WESTERLY LINE OF THE LAND DESCRIBED IN ANNEXATION NO. 54 TO THE CITY OF
NEWPORT BEACH, DECEMBER 30, 1963; THENCE ALONG SAID PARALLEL LINE, NORTH 0
DEGREES 38' 10" WEST 734.93 FEET TO A LINE THAT BEARS SOUTH 77 DEGREES 45' 00" WEST
FROM THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID PARALLEL LINE, NORTH 77
DEGREES 4S'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 IN BOOK 7839,
PAGE 739 OF OFFICIAL RECORDS, ORANGE COUNTY.
112/066751 -0090
3021844.12 a08/02/12
12
105
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 1 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THAT PORTION INCLUDED IN THE LAND DESCRIBED IN THE
DEED TO THE CCTV 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 MINERALS,
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 500 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.
ALSO EXCEPTING THEREFROM ALL THE MINERALS, INCLUDING WITHOUT LIMITATION ALL
OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN, ON 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.
APH: 114 - 170 -24, 114- 170 -43, 114 - 170 -49, 114- 170 -50, 114 - 170 -52, 114 - 170 -56, 114 - 170 -72,
114-170-73,114-170-75,114-170-77,114-170-79,114-170-83 and 424 - 041 -04
1 12/066751-0090
3021844.12 e08102/12
13
100
EXHIBIT B
(DEPICTION OF PROPERTY
1.12/066751 -0090
3021944.12 a08/02112
I
107
is H ST
—
J I
!18TH ST _j L_
II
II
a
°
�I
5_ II
_ JL
niH sT JL_
7F-
NE1:HALL STS
II
16T.1 SJL
II
�
A'. T. S.
II
II
JL —'
m
x
t
a
x
a
WEST COAST
v
1.
SITE MAP
EXHIBIT 'B'coE
NEWPORT BANNING RANCH
JUNE 6, 2012
m
1.12/066751 -0090
3021944.12 a08/02112
I
107
EXHIBIT B -1
DEPICTION OF COUNTY PROPERTY
N.T.S.
COUNTY OF ORANGE
CITY OF NEWPORT BEACH
NEWPORT BANNING RANCH
1121066751 -0090
3021844.12 x08/02/12
WEST COAST '
HICH��q Y
EXHIBIT 'B-l'
JUNE 6, 2012
NEWHALL ST
I
\ —i5TH JI�
is 1H Si
II 0
=11
II
ail
II
III
II
IL
—iSTH ST JL
_ -- -iF
II
z II
II
zll
II
0 II
17TH ST
WEST COAST '
HICH��q Y
EXHIBIT 'B-l'
JUNE 6, 2012
NEWHALL ST
I
\ —i5TH JI�
II m
„ x
r—
'l
\ s
w
e
tam
NO Fl6SCOE
102
leo
II 0
II m
„ x
r—
'l
\ s
w
e
tam
NO Fl6SCOE
102
TABLE OF CONTENTS
Page
Definitions.......................................................................................... ............................... 4
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
Property and Related Matters Pertaining to this Agreement . ....:........................10
2.4
Term ....................................................................................... .............................10
2.5
................................................................................................ .............................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 Fee...........
15
4. Development of Project ..................................................................... .............................21
4.1
Applicable Regulations; Landowner's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals............................................................................. ...............................
21
4.2
No Conflicting Enactments .................................................... .............................22
4.3
Reservations of 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 ................................................ .............................28
8. 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
112/066751 -0090
3021844.12 a08l02l12 -
-log
Pare
112/066751-0090
3021W.12 s08102112
-ii-
110
8.3
City's Option to Terminate Agreement ................................. .............................30
8.4
Default by City ....................................................................... .............................30
8.5
Waiver .................................................................................... .............................30
8.6
Specific Performance Remedy ............................................... .............................30
8.7
Monetary Damages ................................................................ .............................31
8.8
Additional City Remedy for Landowner's Default ............... .............................31
8.9
No Personal Liability of City Officials, Employees, or Agents or
Landowner Members, Managers, Employees, or Agents ...... .............................31
8.10
Recovery of Legal Expenses by Prevailing Party in Any Action .......................31
9.
Force
Majeure .................................................................................... .............................31
10.
Indemnity
Obligations of Landowner ................................................ .............................32
10.1
Indemnity Arising From Acts or Omission of Landowner .... .............................32
10.2
Third Party Litigation ............................................................ .............................32
11.
Assignment ........................................................................................ .............................33
12.
Mortgagee Rights ............................................................................... .............................35
12.1
Encumbrances on Property .................................................... .............................35
12.2
Mortgagee Protection ............................................................. .............................35
12.3
Mortgagee Not Obligated ...................................................... .............................35
12.4
Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................35
13.
Miscellaneous
Terms ......................................................................... .............................36
13.1
Notices ................................................................................... .............................36
13.2
Project as Private Undertaking ............................................... .............................37
13.3
Cooperation ............................................................................ .............................37
13.4
Estoppel Certificates .............................................................. .............................37
13.5
Rules of Construction ............................................................ .............................37
13.6
Time Is of the Essence ........................................................... .............................37
13.7
Waiver .................................................................................... .............................38
13.8
Counterparts ........................................................................... .............................38
13.9
Entire Agreement ................................................................... .............................38
13.10
Severability ............................................................................ .............................38
13.11
Construction ........................................................................... .............................38
13.12
Successors and Assigns; Constructive Notice and Acceptance ..........................39
13.13
No Third Party Beneficiaries ................................................. .............................39
13.14
Applicable Law and Venue .................................................... .............................39
13.15
Section Headings ................................................................... .............................39
13.16
Incorporation of Recitals and Exhibits .................................. .............................39
13.17
Recordation ............................................................................ .............................40
112/066751-0090
3021W.12 s08102112
-ii-
110