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HomeMy WebLinkAboutOrdinance #4226 ORDINANCE NO. 4226 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH ADOPTING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF HUNTINGTON BEACH AND SLF-HB MAGNOLIA, LLC (DEVELOPER) (DEVELOPMENT AGREEMENT NO. 19-001) WHEREAS, the Planning Commission approved General Plan Amendment No. 17-001, Zoning Map Amendment No. 17-001, Zoning Text Amendment No. 17-005, and Local Coastal Program Amendment No. 17-001 to develop an approximately 29-acre property located on the west side of Magnolia Street at Banning Avenue (Property) with a mixed-use community that provides visitor serving commercial uses, new residential product types, and opportunities for coastal access as well as passive recreation(Project)pursuant to the Magnolia Tank Farm Specific Plan; and The City and Developer each mutually desire to enter into a Development Agreement with one another to permit and ensure that the Property is developed in accordance with the approved General Plan Amendment No. 17-001, Zoning Map Amendment No. 17-001, Zoning Text Amendment No. 17-005, and Local Coastal Program Amendment No. 17-001 to achieve the mutually beneficial development of the Property. NOW,THEREFORE,the City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1: That the City Council hereby finds that Development Agreement No. 19- 001 conforms to Government Code Section 65864 et. seq. and that: a. Development Agreement No. 19-001 is consistent with the Huntington Beach General Plan, Local Coastal Program, and Magnolia Tank Farm Specific Plan; and b. Development Agreement No. 19-001 is consistent with Chapter 246 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO),the Huntington Beach Municipal Code, and the Subdivision Map Act; and c. Development Agreement No. 19-001 will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of the property because it is consistent with applicable land use regulations of the zoning regulations in effect at the time of project approval, mitigation measures adopted for the Project in accordance with Environmental Impact Report No. 17-001; and d. The City Council has considered the fiscal effect of Development Agreement No. 19- 001 on the City and the effects on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. SECTION 2: Based on the above findings, the City Council of the City of Huntington Beach hereby approves Development Agreement No. 19-001 and adopts it by this ordinance pursuant to Government Code Section 65867.5. This action is subject to a referendum. Ordinance No. 4226 SECTION 3: This ordinance shall become effective immediately upon certification of Local Coastal Program Amendment No. 17-001 by the California Coastal Commission but not less than 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 1st day of February , 201L1 0 Mayor ATTEST: APPROVED AS TO FORM: 7� City Clerk rt Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: VL �L. fL— City Manager Director of Community Development ATTACHMENTS: Exhibit A: Development Agreement No. 19-001 19-7923/241015 2 DEVELOPMENT AGREEMENT NO. [ ] A DEVELOPMENT AGREEMENT BETWEEN CITY OF HUNTINGTON BEACH and = � SLF-HB Magnolia, LLC, a Delawarehmited liability company s„ E jai�15. A� 6 € M1w u� A MPT 56 sk a� _4 Aly 1032/034040-0002 14187091.1a10/21/19 19-7923/215210 —1- 621 DEVELOPMENT AGREEMENT NO. This Development Agreement (hereinafter "Agreement") is entered into as of this day of , 2021 by and between the City of Huntington Beach, California (hereinafter "CITY"), and SLF-HB Magnolia LLC, a California limited liability company (hereinafter "OWNER" RECITALS WHEREAS, CITY is authorized to enter into bin ding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Huntington Beach Zoning and Subdivision Ordinance (HBZSO) Chapter 246; and �x WHEREAS, This Agreement constitutes', ,a� current exercise�of CITY'S Charter City authority to provide predictability to OWNER mthe development approval process by vesting the permitted uses, density, intensity of use, and timing and phasing of development consistent with the Development Plan in exchange for OWNS OS commitment to provyide significant public benefits to CITY as set forth in Section 4, below- and&L 'ilk k�r X WHEREAS, OWNER has filed f-12,plication wi"e CITY requesting, in part,the CITY to enter into a development agreement in_accordance with the�HBZSO Chapter 246; and WHEREAS' the, CITY finds andtdetermines that the health safety and welfare will be da-SY roe ii�PT emu" c• enhanced and better servedlby,entering intothis Agreement°`because, m part, this Agreement will provide the CITY with housing as-vwell.as0 nding t a may be used to enhance CITY recreational facilities,parks,playgrourid equipmeri and affordable housing in accordance with and in implementation of numerous gene al plan goals °and policies of the CITY; and "NE WHEREAS the provisi n by OWNEIz of these aforementioned public benefits allows the CITYito aw realize significant economc;Eand socialbenefits it would not otherwise gain without this Agreement.and WHEREAS, the environmental impacts, if any, of the Project and this Agreement have been analyzed pursuant to the California Environmental Quality Act ("CEQA") (Pub. Res. Code section 21000 et seMand WHEREAS, this Agreement and the Project are consistent with the Huntington Beach General Plan, Local Coastal Program, and any specific plan, as amended, applicable thereto; and WHEREAS, in consideration of this Agreement the CITY and OWNER have complied with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters. 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -1- 622 COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1 Definitions. The following terms when used in this Agreement shall be defined as follows: 1.1.1 Agreement means this Developmefi Agreement. 1.1.2 "CITY" means the City of HuntingtoiM ach, a California municipal W corporation. ° 1.1.3 "City Council" means the 1 duly elected city council of the City of Huntington Beach. 1.1.4 "Commencernent�Date" means the Effective Date of this Agreement. - 1.1.5 "Development"means the.-itnprovement.of the Property for the purposes of completing the structures, improvements and facihtiescomprising=the Project including, but not limited to: grading, the construction of iiifrastructure�an�dpublic facilities related to the Project whether located within o outsi'daU,e�the Property; the construction of buildings and structures; and the installation of landscapin evelopment" does not include the maintenance, repair, reconstruction or redevelopment ofany building, structure, improvement or facility after the construction and completion therf".Of " 1.1.6 `DeYelopinel t Approvals"means all permits and other entitlements for use IMIsubjecifFf -approval or issuance by CITY in connection with development of the Property including, but not liriirte�d to �q ' (a) General Plan, general plan amendments, specific plans and specific plan amendments; ' (b)ttentative and final subdivision and parcel maps; (c) conditional use permits, architectural review, and plot plans; (d) Zoning, Zoning Map amendments, and zoning text amendments; (e) Local Coastal Program and local coastal program amendments; and, (f) grading and building permits. 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 —2- 623 1.1.7 "Development Exaction" means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. 1.1.8 "Development Impact Fee" a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project-for the purpose of defraying all or mys a portion of the cost of public facilities related to the development project, but does not include park "in lieu" fees specified in Government Code Section 664�77, fees for processing applications for governmental regulatory actions or approvals, affordableHousing fees, or fees collected under development agreements adopted pursuant to Article 2"5 of the Government Code (commencing with Section 65864) of Chapter 4. 011" 1.1.9 "Development Plan" means the plan for development of the Property as set fth forth in Exhibit"C" consisting of a Residential Parcel, a Hotel'Parcel, an Open Space Park Parcel, and an Open Space Conservation Parcel. 4,d 1.1.10 ""Effective Date" meahi tMdate this Agreement is approved in final form by the California Coastal Commission 1n accordance with Government Code section 65869. 1.1.10 "Final Inspection" 11%6-ity has undertaken a final inspection in accordance with HBZO section 110.3.11 ands"finaledlw p ermit al€lowing human occupation/use of the structure. "Hotel Improvements" shaIlmi ean those on`site hotel improvements set forth on pp. 3-22 through 3 23 io,lthe,MagnolialTaiW& Specific Plan and set forth in Exhibit "C." r Land Use Regulations"_ means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without `limitation, the permitted use .of land, the density or intensity of use, subdivision requirements the maximum height and size_of proposed buildings, the provisions for reservation or dedication otand for public ppuposes, and the design, improvement and construction standards and speciticationsql,applicable to,Gthe development of the Property. "Land Use Regulations" does not include any CITY o dinance,resolution, code, rule, regulation or official policy, governing: (a) the conduct of businesses,professions, and occupations; 3111. (b) taxes (special or general) and assessments; (c) the control and abatement of nuisances; (d) the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; 1032/034040-0002 14187091.1a10/21/19 215210/19-7923 -3- 624 (e) the exercise of the power of eminent domain. "OWNER" means the persons and entities listed as OWNER on page 1 of this Agreement and their successors in interest to all or any part of the Property. "Open Space Park Improvements" shall mean those on-site open space improvements set forth on pp. 3-5 and 3-17 through 3-22 of the Magnolia Tank. Farm Specific Plan and set forth in Exhibit"C." "Open Space Conservation Improvements" shall mean shall mean those on-site open space conservation improvements set forth on pp. 3-4 and 3-16 through 3-19 of the Magnolia Tank Farm Specific Plan and set forth.' 'bit"C." 1.1.12 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and heir'successors and assigns. y 1.1.13 "Project" means the development of the Property pontemplated by the Development Plan as such Plan may be further defined, enhanced or modified,pursuant to the provisions of this Agreement. 0,� y 1.1.14 "Property" me s the real-property asiset forth in Exhibit "A" and Exhibit "B"to this Agreement. 1.1 15Public Benefit" refers to those-benefits provided to the CITY and the community by OWNER pursuantto Section 4 below.% 1.1.16 "Reservation,of Rights" means the rights and authority excepted from the assurances and rights provided to �®WNER-under",this Agreement and reserved to CITY under Section 2 3 of this Agreement �� � 6 V I j 42 Exhibits The;rfollowmgdocuments are attached to, and by this reference made a �d part of, thsAgreement: LL4� ill Exhibit"A" Legal Desdrption of the Property. Exhibit "B" Nbhpt showing Property and its location. Exhibit "C"—Development Plan—Vested Entitlements. Exhibit"D"— Hotel Quality Standards Exhibit"E" Magnolia/Hamilton Improvements GENERAL PROVISIONS. 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -4- 625 1.3 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property shall be carried out in accordance with the Land Use Regulations, which are fully vested by this Agreement, in effect as of the Effective Date. The Property Development, as authorized by future approvals, shall be carried out in accordance with the terms of the Development Plan, the Land Use Regulations in effect as of the Effective Date, and this Agreement. 1.4 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to, or has an equitable interest in, the Propertyor a portion thereof. ����4/ j 1H 1.5 City Council Findings. The City Council fin s!'t hat: 1.5.1 This Agreement is consistent with the City's General Plan, and Local Coastal Program as amended. 1.5.2 This Agreement is consistent with all provisions---------hapter 246 of the low HBZSO, the CITY's Municipal Code, and the State,Subdivision Map Act. a, 16, 1.5.3 This Agreement wi41"ll not be detri meida the health, safety and general welfare; and will not adversely affect the orderly development of property. "111.5.4 The City Council has considered the fiscal effect of this Agreement on the CITY and the effects on the housing needs of the regibmin which the CITY is situated and has AWN_- balanced these needs agamst�ah8 public service needs ofits residen" nd available fiscal and environmental resources . �" o ail 1.5.5 This, Agreement ensures a desirable and functional community environment,provides effectiVeanclefficient development of public facilities, infrastructure, and services f6mthe development ofthe I'roject enhances effective utilization of resources-within the CITY A1.5.6 This Agreement provides public benefits beyond those which are necessary to mitigate the development of the Project. 1.5 7 j his Agreement strengthens the public planning process, encourages private participation in comprehensive planning and reduces costs of development and government. 1.5.8 This Agreement enhances the health, safety and welfare and the CITY is better served by entering into this Agreement. 1.6 Term. The term of this Agreement shall commence on the date (the "Commencement Date") that is the Effective Date, and shall continue for a period of fifteen (15) years thereafter, unless this term is modified, extended or terminated pursuant to the provisions of this Agreement. 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -5- 626 1.7 Assi n e. 1.7.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.)to any person,partnership,joint venture, firm or corporation at any time during the term of this Agreement with the prior written consent of the CITY, which shall not be unreasonably withheld; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict.•compliance with the following conditions precedent: (a) No sale, transfer or assignrnent��of any right or interest under this Agreement shall be made unless made together with "le, transfer or assignment of all or a part of the Property. _ (b) Before any such sale, transfer or assignme t; OWNER shall notify CITY, in writing, of such sale, transfer or assignment and obtain=CITY's consent as set forth above, and shall provide CITY with_ an pdraft agreement ("Assignment and ow Assumption Agreement"), in Ai iform reasona-bly a ceptable to CITY Attorney, by the purchaser, transferee or assigne # and,providing therein that the purchaser, transferee or assignee expressly and uncondifionally assumes all the duties, obligations, agreements, covenants waivers of OWNER Oder this Agreement"��,including, without limitation, the covenants not to sue and waivers conned m�S�ections 6.2 a d 7.4 hereof. Any sald;atransfer orassignment not made in strict compliance with the foregoing conditions shall be void and constitute a default bgy Owner under this Agreement. Notwithstanding the failure of any purchaser,transferee or assigneeto execute the agreement required by Paragraph (b) of thisSubsecionl.7.lthe burden's of this Agreement shall be binding upon such purchaser, transfereeor assignee, but the benefits ID of this Agreement shall not inure to such purchaser, transfereeior assignee until and uri ssi such agree I ent is executed. Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, atnsferring OWNER shall continue to be obligated under this Agreement with respect to the transferred Property or any transferred portion thereof, unless such transferring OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by suc�ansfe ng OWNER of the following conditions: (a) OWNER no longer has a legal or equitable interest in all or any part of the Property subject to the transfer. (b) OWNER is not then in default under this Agreement. (c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 1.7.1 above. 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -6- 627 (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder. 1.7.3 Subsequent Assi n� ment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section. 1.7.4 Utilities. The Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project, prior to final inspections and/or the issuance of a certificate of occupanfor any portion of the Project, as PAR applicable. NMI 1.7.5 Sale to Public and Completion of Construction. The provisions of Subsection 1.7.1 shall not apply to the sale or lease(for a period longer than one year) of any lot that has been finally subdivided and is individu�'lly(and not in "bulk")`",s°ol�d or leased to a member of the public or other ultimate user. This Agreement shall terminate witrespect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or Lft sy. recordation of any further document upon satisfaction of bothW m the followg,coriditions: (a) The lot has been finally subdivided and individually (and not in "bulk") sold or leased(for a period longer than one year)to a member of the public or other ultimate user; and WIN (b) A"Vinal Inspection or certificate of occupancy has been issued for a building on the aot, and thefees for such lot set forth in this Agreement have been paid. 1.8 Amendment car Cancellation of Agreement. This Agreement may be amended or canceled i INIT le for in part ou ly by wntteniconsent`of all parties in the manner provided for in HBZSO orGovernmerit Code Sewn 65868LThisprovision shall not limit any remedy of CITY or OWNER as provided Ky his Agreement. 1.9 Termination. issaAgreement shall be deemed terminated and of no further effect MW upon the occurrence of any of ollowing events: v (a) 4Expiration of the stated term of this Agreement as set forth in Section 1.6. �1 _ (b) E a final judgment setting aside voiding or annulling the adoption of the ordinance approving this Agreement. (c) Completion of the Project in accordance with the terms of this Agreement including passing final inspection and/or issuance of all required permits and acceptance by CITY or applicable public agency of all required dedications. Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement,no party shall 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -7- 628 have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement that has occurred prior to such termination or with respect to any obligations that are specifically set forth as surviving this Agreement. 1.10 Notices. (a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitt d hereunder. (b) All notices shall be in writing and sh­a11 be considered given either: (i)when delivered in person to the recipient named below; or(iij! Ill' dateuof delivery shown on the return � receipt, after deposit in the United States mail in a,iisddled envelope s either registered or certified mail with return receipt requested, and postage.and°postal charges prepaid, and addressed to the recipient named below; or(iii) on the date of delivery shown in the records of a standard overnight delivery service. All notices shall be addressed asfol-lows: If to CITY: City of Huntington Beach O 42, 000„Main Street 1! HuntmgtonBeach, CA�(9k ,648 AM— Attn-City NTanager Telephone: (714) 5�36-8465 Cop '10;- City Att ey's Office - 2000 Main S eet , Huntmn B gtoeach, CA 92648 1AIR, Milk "F ,' Attri Michael Gates Telephone:-(7141536-5538 If to OWNER: SLF4-HB Magnolia, LLC - 2 LPai k Plaza, Suite 700 - Irvine, CA 92614 Attn: John Santry - „ Telephone: (949) 769-6714 Copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92694 Attn: John A. Ramirez Telephone: (714) 662-4610 (c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 —8- 629 invalidated by the change. 2. DEVELOPMENT OF THE PROPERTY. 2.1 Rights to Develop. Subject to the terms of this Agreement including the Reservation of Rights, OWNER shall have the vested right to develop the Property in accordance with the Land Use Regulations in existence on the Effective Date and to the extent this Agreement permits. Except as expressly provided otherwise herein, the Project is subject to all Land Use Regulations and Development Approvals in effect on the Effective Date that are required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Land Use�� gulat bns and Development Approvals Iq in effect on the Effective Date. OWNER shall complwith all mitigation measures and conditions of approval as required to be undertaken pursuant to any discretionary approval, including any �k�1 ���� CEQA document, with respect to the Project11 �uhis Agreement shall not apply to Development Approvals which have not been approved prior to"(,Effective Date. CM—W% 2.2 Effect of Agreement on Land Use Reulg ations. In connection with any Development Approvals issued followmgthe Effective Date and except as specifically provided otherwise herein, CITY may exercise its discretion in accordance with the Land Use Regulations then in effect, as provided by this Agreement, including, but nio limited to, the Reservation of Rights. CITY shall acce, (n)" rocessing,review and take action on all applications for subsequent development approvals _ 2.3 Reservation=-,of Rights:;, , " Limitdtlor s g Reservations and_ Exceptions. Notwithstanding any other provisions od bis Agreement, the .follow ng regulations shall apply to the development of the P z k $ M`M Pro e „ u . w� (a) Processing fees and charges of every kind and nature imposed by CITY to -cover the estimated aefual costs to CITY of processing applications for DevelopmenttApprovals6o for monitoring compliance with any Development Approvals granted or issued � i All (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including, without limitation, all uniform codes adopted by the CITY and any local amendments to those codes adopted by the CITY, including,without limitation,the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Grading 1032/034040-0002 1418709 1.1 al 0/21/19 215210/19-7923 -9- 630 Ordinance. (d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development located either throughout the CITY or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in---Se ion 4 of this Agreement, CITY shall allow a credit against such subsequently adoptedDevelopment Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes. (e) Health and safety regulations that may be in material conflict with this Agreement but that are necessaiito protect the residents of the project or the immediate community from a condition perilous to their healthor safety. To the extent possible, any such regulations shall be applied and construed so s to_provide OWNER with the rights and assurances provided under this Agreement. v (f) Regulationsatliat are not in material conflict with this Agreement or wk the Development Plan. Any regulation;whether adopted_by initiative or otherwise, limiting the rate or timing of development of the Property shall be=deemed to materially conflict with the Development Plan and shallthereforez Q be applicable to the development of the n = Property. " Regulations that are in material conflict with the Development Plan; (g)n Eh provided 0" Rhas given ,written consent to the application of such regulations to development of that Property m which the OWNER has a legal or equitable interest. Regulations that impose, levy, alter or amend fees, charges, or Land U§,Regulations relating to consumers or end users, including,without limitation,trash can Ah�6NI placement, service cbarges and limitations on vehicle parking. �I�, �p(i) Regulations of other public agencies, including Development Impact Fees adopted ors unposed by such other public agencies, although collected by CITY. (j) For purposes of clarity, it is acknowledged that development of the Property will require the submission and approval of various implementation permits, including, but not limited to subdivision maps. City shall retain discretion in acting upon such future permits, consistent with the terms of this Agreement. 2.3.2 Modification or Suspension by State or Federal Law. In the event that State, County or Federal laws or regulations, enacted after the Effective Date of this Agreement,prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of 1032/034040-0002 14187091.1a10/21/19 215210/19-7923 —10- 631 this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 2.4 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY may possessah'ority to regulate aspects of the development of the Property separately from or jointly with'"CITY and this Agreement does not limit the authority of such other public agencies. 2.5 Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 3t7 3d 465, that the faillure of the parties in that case to provide for the timing of development suited in a later-adopted Initiative restricting the timing of development to prevail over the parties' agreement, itJs the specificintent of the Parties to provide for the timing of the Project in this Agreemert To do so, the 'arties acknowledge and provide that OWNED shall have the tight, but not the obligation,to complete the Project in such order, at such rate, atsch times, and in�asmany development phases and sub-phases as OWNER deems appropriate m its sole subjective business judgment subject the following: The on-site Open Space Park` I4mprovcments and Open Space Conservation Improvements shall be completed prior t Final Inspeection�for the first dwelling unit. The Hotel shall receive a certificate of ccupancy prior, Final Inspection for the 175th dwelling unit. 2.6 Conditions=_Covenants and Restrictions. Except as imposed as a condition in a MM discretionary permit OWNER shall have the abilir,y o reserve and record such covenants conditions aniestn d etions (CC&Rs) against-the Propegrty as OWNER deems appropriate. Such CC&Rs may not conflict with this 1Agreeme�nt orthe General Plan. Before recording any CC&R1s, .,`� 656"m�� _ OWNER shall provide a copy of the CC&Rs to the City for review and approval by the i ��fN1t� R City Attorny, The City Attorney's reyIew shall be limited to determining if the CC&Rs substantiallytcgmply with this A' -mentVand all laws in effect . Within thirty(30) days after } receiving a copy of the proposed CC&Rs from OWNER, as evidenced by written confirmation of receipt from the City Attorney,the City Attorney shall provide OWNER with either(i) a statement that the CC&Rs comply with this Agreement("CC&R Approval") or(ii)written AN comments identifying each 40 t of the CC&Rs which the City Attorney believes not to be in compliance with this Agreement and/or law(a"Statement of Non-Compliance"). If the City Attorney fails to provide OWNER with either CC&R Approval or a Statement of Non- Compliance within thirty(30) days following a written request by OWNER, City shall be deemed to have approved the CC&Rs and OWNER may record the CC&Rs against the Property. If the City Attorney provides a Statement of Non-Compliance, OWNER shall have thirty (30) days in which to respond to the Statement of Non-Compliance. Upon submittal of OWNER's response, the procedure described above for the initial submittal and City Attorney review of proposed CC&Rs shall again be followed. This procedure shall be followed until OWNER either (1) receives CC&R Approval, (2) submits the compliance issues to binding arbitration pursuant 1032/034040-0002 14187091.1a10/21/19 215210/19-7923 -1 1- 632 to the rules of the American Arbitration Association, (3) files an action for declaratory relief in Orange County Superior Court seeking a judicial determination of the compliance of the proposed CC&Rs, or (4) an agreement is otherwise reached between the Parties allowing for the recording of the CC&Rs. The CC&Rs may run with the land and bind OWNER's successors and assigns. Except as provided above, any dispute between the Parties regarding the City's approval or rejection of the CC&Rs shall be subject to immediate and binding arbitration pursuant to the rules of the American Arbitration Association. 3. PUBLIC BENEFITS. 3.1 Public Benefits. The Project will serve�to r6 vitalize an under-developed site, will provide on and off site infrastructure upgrades; willprovide additional property and sales tax revenues to the CITY. In addition, the Project will provide monetary-funds to improve the CITY's open space and recreational facilities by providing funding in a total amount that would allow the CITY, should it so choose in the future and in compliance with all=laws, including but not limited to City Charter section 612 (Measure C),to implement the publiAp provements listed below. Nothing in this Agreement obligates obli ates the it d,.'use the monetarY nds provided by the OWNER for such improvements,Aand,,the City Council may use the funds provided by OWNER for any lawful purpose at its sole an un dl,�absolute discretion. However, the monetary Al funds to be provided by OWNER to the CITY pursuant to thiswAgreement may fund the following public improvements 1A k f 1 Banning Branch Libra�r'y. �$a1O000�0�:00 (ONE MILLION DOLLARS) is 3.1 being provided by OWNER. This�amount couldu'fund improvements to the Banning Branch Library. 00i° . 3�12 son�Parlc Improvements. 0,000.00 (EIGHT HUNDRED THOUSAND DOLLARS)is being�provided by OWNER. This amount could fund the reconfiguration of the exterior of Edison Park, including but not limited to the relocation of some iWaffib of the current amenities to a m_ore functional location within Edison Park and construction of new patron sew�ng amenities ff funding permits. 7 3.1 3 ,TPlay Equipment and Park Improvements at Seely Parks. $400,000.00 (FOUR HUNDRED THOUSANI?DOLLARS) is being provided by OWNER. This amount could fund play equipment,,:,and/or other park improvements at Seely Park, with any remaining funds after improvements hae'been completed to be used at Edison Park for park improvements. 3.1.4 Banning Avenue Beautification. $300,000.00 (THREE HUNDRED THOUSAND DOLLARS) is being provided by OWNER. This amount could fund the creation of landscape improvements along Banning Avenue. 1032/034040-0002 1418 709 1.1 a10/21/19 215210/19-7923 —12- 633 3.2 Timing of Pgyments; No Restrictions on Use of Funds by City. The sum total to be provided by OWNER to City pursuant to Section 4.1 of the Agreement is $2,500,000.00 (TWO MILLION FIVE HUNDRED THOUSAND DOLLARS). OWNER shall provide payment to CITY as follows: $1,000.000.00 (ONE MILLION DOLLARS) concurrent with the issuance of the building permit for the first dwelling unit; $1,000,000.00 (ONE MILLION DOLLARS)prior to Final Inspection of the first dwelling unit; and $500,000.00 (FIVE HUNDRED THOUSAND DOLLARS)prior to Final Inspection of the 125th dwelling unit. CITY may use the monetary funds provided by OWNER pursuant to this Agreement for any lawful purpose but will prioritize the monetary funds for capital nnprovement projects located within a one mile radius of the Property that are deemed to irnprove the quality of life for 41� * residents within the area. The obligations to provide payments„set forth above shall survive any termination of this Agreement. M 3.3 Magnolia/Hamilton Improvements Inaddition, the project design includes extensive improvements to be constructed by O-. � �R to the intersectin of Magnolia and Hamilton and along the adjacent ASCON property frontage on Magnolia Street (e.g., full width street improvements; including but not limited to-sidewalk curb,gutter, streetlights, undergrounding of utilities, signalization improvements„etc1)k,,:, he City will allow OWNER to underground utilities located along 1VIagnolia Street withm�he public right of way for the portion 4 N adjacent to the ASCON property as welEds the portion adjace�nit to the PROPERTY. The Hamilton Street improvements include full widt street improuNements as well with the exception of undergrounding of utilities. Provided th at OWNER is able to,11!6btain access at no-charge to construct said improvements,.'said improvements shall l t","ompleted prior to Final Inspection of the 1251h dwelling umt� �e Magnolia/Harri,lton Iifiprovements�are set forth in Exhibit«E » Fa a,(u w 3.4 Hotel QualityStanda�rdsThe Hotelquality standards and amenities shall be those set forth on Exhib .`D it` ". _ -- �i 3 5 The CITY acknowledges the Ptand this Agreement must be approved by the Califorma�Coastal Commission ("CCC")prior to the Agreement taking effect. The CITY also acknowledges the CCC may�r=equest tchanges be made to the Development Plan. Thus, the public benefits rset forth herein are predicated on the Development Plan being approved by the CITY. 3.6 Development Impact Fees. Wil 3.6.1 Amoliiiof Fee. The Development Impact Fees in effect at the time of Building Permit issuance in accordance with the City's HBZSO shall be charged to the Project. 3.6.2 Time of Payment. The fees required pursuant to Subsection 3.6.1 shall be paid to CITY in accordance with the terms of such ordinance(s). 3.6.3 Fee Credits. OWNER shall be entitled to credit against the fees required pursuant to Subsection 4.6.1 in accordance with the terms of such ordinance(s). 1 03 2/03 4040-0002 14187091.1 a10/21/19 215210/19-7923 -13- 634 3.7 Timing of Construction of Off-Site Infrastructure. Approval of any building permits on the Property shall be conditioned upon CITY's determination, in its reasonable discretion, that sufficient progress is being made on construction of off-site infrastructure serving development of OWNER's Property. Construction of the off-site infrastructure adjacent to Owner's Property shall be completed prior to Final Inspection for the first dwelling unit. Construction of the Magnolia Hamilton Improvements shall be subject to section 3.3. 4. REVIEW FOR COMPLIANCE. 4.1 Periodic Review. The CITY shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertamtle compliance by OWNER with the terms of the Agreement. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the City Manager, within thirty (30) days after written no e from the City Manager. The Annual Monitoring Report shall be accompanied by an annual'review and administration fee sufficient to defray the estimated costs of revie, nd administration of'the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council. 4.2 Special Review. The,Citky Council o special review ofcompliance with this Agreement at any time. The City Manager, or his or her designee, shall conduct such special reviews. Ni) 4.3 Procedure r " 0 (a) .3 uring either a periodic_review or `a' special review, OWNER shall be th=compliance wrth the terms of the Agreement. The burden of required to demonsti'!!_e god fai ANSI proof on this issue shall be on OWNERwn (b) 'Upon completion df�a peric review or a special review, the City Manager, or his or her designee, shall submit a�report to the Planning Commission setting forth the evidence;concermng goodjfaith compliance by OWNER with the terms of this Agreement and his or her conimended finding e on that issue. =:= (c) If the Planning Commission finds and determines on the basis of substantial evidence that OWNER has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded. (d) If the Planning Commission finds and determines on the basis of substantial evidence that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Commission may recommend to the City Council modification or termination of this Agreement. OWNER may appeal a Planning Commission determination pursuant to this Section 5.3(d) pursuant to CITY's rules for consideration of appeals in zoning matters then in effect. Notice of default as provided under Section 6.3 of this Agreement shall be given to OWNER prior to or concurrent with proceedings under Section 5.4 and Section 5.5. ]032/034040-0002 14187091.1 a10/21/19 215210/19-7923 —14- 635 4.4 Proceedings Upon Modification or Termination. If, upon a finding under Section 5.3, CITY determines to proceed with modification or termination of this Agreement, CITY shall give written notice to OWNER of its intention so to do. The notice shall be given at least ten (10) calendar days prior to the scheduled hearing and shall contain: (a) The time and place of the hearing; (b) A statement as to whether or not CITY proposes to terminate or to modify the Agreement; and, ill,�,; (c) Such other information that the QUE a, considers necessary to inform OWNER of the nature of the proceeding. 4.5 Hearing on Modification or Termination. At the tirrie and place set for the hearing W� �u'. °Iwi�iNF1 on modification or termination, OWNER shall be given an opportunity,to,be heard. OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. k The burden of roof on this issue shall be on ®WNER. If the City Connell finds, based upon Y substantial evidence, that OWNER has not coin hed in oodath with the teiiis or conditions of p g SIN", the Agreement, the City Council may terminate this Agreement or modify thisAgreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be f�1,, 4.6 Certificate,4ofAgreemenAm pliance. 'Tf; at the conclusion of a Periodic or Special Review, OWNER is foundto be%in compliance with this Agreement,CITY shall, upon request by OWNER, issue a Certificate of Agreement ow, "lance ("Certi„ficate") to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the City Manager and Gity Council that: (l) this Agreement remains in effect; and (2) OWNER is`notin default. Theme Certificateshall be in recordable form, shall contain information necessary fo communicate constructive record notice of the finding of compliance, shall state whether`the Certificate isuissued aftera Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. F Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the City Manager or City Council. 5. DEFAULT AND REMEDIES. 5.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that neither CITY nor OWNER shall be liable in damages and both OWNER and CITY covenant not to sue for damages or claim any damages: 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -15- 636 (a) For any breach of this Agreement or for any cause of action that arises out of this Agreement; or (b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or (c) Arising out of or connected with any dispute,controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 5.2 Release. Except for non-monetary remedies, Q � R, for itself, its successors and assignees, hereby releases CITY, its officers, agents andsenployees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant NW o� to Article I, Section 19 of the California Constitution, ie Fifth and F-blurteenth Amendments to the United States Constitution, or any other law or odnance which seeks to impose any other liability or damage, whatsoever,upon CITY because it entered into this Agreement or because of the terms of this Agreement. OWNER hereby acknowledges that it .has read aril is familiar with the provisions of California Civil Code Section 1542, which is set forth below: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDIT DOES--NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR'ATTHE TIME GF EXECUTING THE RELEASE, WHICH KNOWN1hY HIM OR;HER MUST �a IF HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WIT14 THE DEBTOR." By initialin 'hbelow�rOWNER her waives the provisions of Section 1542 in connection with�the matters that are the subject oft oregoing waivers and releases. g ' Owner's Initials 5.3 Termination or Modification of Agreement for Default of OWNER. CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNERxunder this- greement, or to comply in good faith with the terms of this Agreement (heremafteTeferred o as "default"); provided, however, CITY may terminate or modify this Agreement pursuIn�t to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty(60) day period and to diligently proceed to complete such actions and cure such default. 1032/034040-0002 14187091.1a10/21/19 215210/19-7923 -16- 637 5.4 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default. Owl 6. LITIGATION. � 16 6.1 Third Party Litigation Concerning A reement 'p -v NER shall defend, at its expense, including attorneys' fees, indemnify, andl Id harmless CITY, its agents, officers and ME employees from any claim, action or proceedmgdinst CITY, its ag ts, officers, or employees to attack, set aside, void, or annul the approvalof this Agreement, or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNERof any claim, action, proceeding or determination included within this CITY shall,�cooperate in the �� �III811�" �i�I defense. If CITY fails to promptly notify OWNER of any such claim, action, proceeding or determination, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action,proceeding otermmatnn 6.2 Environmental Assurances. OWWNER 'shall indemnify and hold CITY its officers agents, and employees free and harmless fromany liability, based or asserted, upon any act or omission of OWNER``or City, its,�officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation'4( ngao.,any en onmental laws or regulations including but not hmitedto CEQA the CCA, CERCLA, industrial hygiene or to environmental conditions on, under or about the Pro�erry,_including, but not limited to, soil and groundwater conditions, and OWNER s all defend, at its expense, ippluding attorneys' fees, CITY, its officers, agents and employees m any action based or asserted"on any such alleged act or omission. CITY may in its discretion paIfticipate in the defense of any such action. 60 6.3 ReserVAt`ion of Rights. With respect to Section 7.1 and Section 7.2 herein, CITY reserves, the right to either(l) approve the attorney(s) that the indemnifying party selects, hires or otherwise engages to de f ndthe indemnified party hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that the indemnifying party shall reimburse the indemnified party forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor. 6.4 Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement, OWNER, on behalf of itself and its successors in interest, hereby expressly agrees and covenants not to sue or otherwise challenge any land use approval affecting the Property and in effect as of the Effective Date. Such agreement and covenant includes, without limitation, the 1032/034040-0002 14187091.1a10/21/19 215210/19-7923 -17- 638 covenant against any direct suit by OWNER or its successor in interest, or any participation, encouragement or involvement whatsoever that is adverse to CITY by OWNER or its successor in interest, other than as part of required response to lawful orders of a court or other body of competent jurisdiction. OWNER hereby expressly waives, on behalf of itself and its successors in interest, any claim or challenge to any land use approval affecting the Property and in effect as of the Effective Date. In the event of any breach of the covenant or waiver contained herein, CITY shall, in addition to any other remedies provided for at law or in equity,be entitled to: (a) impose and recover (at any time, including afte wale to a member of the public or other ultimate user) from the party breaching such covenn t or waiver, the full amount of hav O Development Impact Fees that the breaching party would een required to pay in the absence of this Development Agreement; and (b) impose any subsequently adopted landuse regulationon those land use approvals for which the breaching party had not, as of the time of such breach, obtained a building permit. I� OWNER hereby acknowledges that it'has dread and is familiar with, the provisions of California Civil Code Section 1542, which is set forth belovV:; ' "A GENERAL RELlm- EAISWDOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FUORA� n�i THE TIME F EXECUTING THE RELEASE WHICH IF,KNOW tf l_ HIM W HER MUST HAVE 1VIATE Z LY AFFECTED :CIS OR HER SETTLEMENT WITH THE DEBTOR." Y �21 1�� fil By initialing below,,OWNER hereby waives,,the provisions of Section 1542 in connection with the matte sthat are the sub�Jt�of the�foregomg�v�aivers and releases. MOO Owner's Initials AW 6.5 Survival. The provisions of Sections 8.1 through 8.5, inclusive, shall survive the termination of t1ii�Agreement 6.6 1 C'ntinn Pnp`�'Jt`w, Within ten (10) business days of OWNER receiving notificationfrorn CITY that any claim, action or proceeding covered by Section 6.1 above has been filed, OWNER shall make a monetary deposit in an interest bearing account with CITY in an amount to be mutually agreed upon by the Parties at that time after discussing the budget required to defend such claim, action or proceeding and/or settlement thereof. If OWNER fails to make the deposit as required by this Section 6.6, CITY shall have the right to rescind(i) any Development Approvals as defined in Section 1.1.6 above issued or granted by CITY and (ii)this Development Agreement. 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 639 7. MORTGAGEE PROTECTION. The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER'S sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to recerve�written notification from CITY of any default by OWNER in the performance of OWNER's obl_g tions under this Agreement. (c) If CITY timely receives a request from a�ortgage questing a copy of any notice of default given to OWNER under the terms of this£Agreement, CIhall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice ofdefault to OWNER. The Mortgagee shall have the right,but not the obligation, to cure the default during the remaining cure Mw period allowed such party under this Agreement: g (d) Any Mortgagee who comes into possessionof the Property, or Agreement- any part thereof, pursuant to foreclosure of the mortgageor deed of trust,-ow---deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of�this,eAgreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgageelshall have an obligation or duty under this Agreement to perform any of®WNER's 6N pions or other affirmative covenants of OWNER hereunder, or $guarantee such performance; provided, however, that to the extent that any covenant to be" performed by'.,OWNER,visa conditionpr`ecedent to the performance of a covenant by CITY, the performanc�e�thereof sha l continue to be a condition precedent to CITY's performance hereunder, and furthe 1provided 'that any sale, transfer or assignment by any r � Mortgagegfmlpossession shal�l�be,sub�ect to the provisions of Section 1.7 of this Agreement. 8. MISCELLANE®,y ',Su,PROVTSIONS. �h7 �GI� 8.1' ''����111II!Recordation of,�i�Agreemen� ,,This Agreement and any amendment or cancellation thereof shall be� F6corded with theOrange ounty Recorder by the Clerk of the City Council within ten (10) days aftre�r�he City enter "`pinto the Agreement, in accordance with Section 65868.5 of the Government Code Iff�the partieso this Agreement or their successors in interest amend or cancel r���d� g this Agreement,or if th'e''. h,�TY1,ermmates or modifies this Agreement as provided herein for failure of the OWNER to com ltn� 'ood faith with the terms and conditions of this Agreement, the City p y g Y 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 '19- 640 Clerk shall have notice of such action recorded with the Orange County Recorder. 8.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 8.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid,void or unenforceable,the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing,the provision of the Public Benefits set forth in Section 3 of this Agreement,including the payment of the Development Impact Fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever. _6_-- 8.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance,wrth the laws of the State of California. This Agreement shall be construed as a whole according i8`its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having b,&n represented by counsel:in the negotiation and preparation hereofNI b 06 8.5 Section Headings. All section headings,,q-_-and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 8.6 Singular and Plural. As dsed herein,,the singular of any word includes the plural. 8.7 Joint and Several Obli gat ions` If at any time during the Tennof this Agreement the Property is owned, mwhole o MAN n-part, by�rnore than one ®WNER, all obligations of such OWNERS under this Ag eement sh ll be joint and several, and the default of any such OWNER shall be the default of all such OWNERS;._ Notwithstanding the foregoing, no OWNER of a single lot that hast,been finally subd v ded and=sold to such .OWNER as a member of the general public or otherwise as an mate userr sh a t all have any obligation under this Agreement except as expressly provided for herein. 71, 8.8 61, ,, Waiver. Failure by a partyr,to insist upon the strict performance of any of the provisions of tli 77 Agreement by the other party, or the failure by a party to exercise its rights upon the default of the Iother party, shall not constitute a waiver of such party's right to insist and demand strict compliance by th6_ other party with the terms of this Agreement thereafter. 8.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 —20- 641 any right of action based upon any provision of this Agreement. 8.10 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party's control, (including the party's employment force), government regulations, court actions (such as any action challenging the validity of the Project Approvals, restraining orders or injunctions), or other causes beyond the party's control. If any such events shall occur, the Term of this Agreement and the time for performance by either party of any of its obligations hereunder shall be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the Term of this Agreement shall not be extended under any circumstances for more than ten (10) years. 8.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 8.12 Successors in Interest. 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 lie 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 Pro : (a)is for the b" of and is a burden upon every portion of the Property; (b)runs with the Property and each portion thereof, and(c)is binding upon each party and each successor in interest tLuring ownership of the Property or any portion thereof._ 8.13 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed t©gether and have the same effect as if all of the parties had executed the same instrument. 8.14 Jurisdietaon aiitl���enue. Any action at la v o ih7equity arising under this Agreement or brought by a party hereto for therpurpose of enrcing, construing or determining the validity of any provision of this Agreement shall be filed� nd tried in the Superior Court of the County of Orange, State of California, and the parties heretcwaive all provisions of law providing for the ft filing,removal r`hange of venue to`ariy ether court. 2�� 1 Project as a Private Undertaking.' It is specifically understood and agreed by and between the parties hereto tlia the development of the Project is a private development,that neither party is acting s the agent 'f the other in any respect hereunder, and that each party is an independent co�iacting entityI Ivith respect to the terms, covenants and conditions contained in this Agreement. No partnership;joint venture or other association of any kind is formed by this Agreement. The only ielationship` between CITY and OWNER is that of a government entity regulating the development oAl %-vate property and the owner of such property. 8.16 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -21- 642 Upon the request of either party at any time, the other party shall promptly execute and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 8.17 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain. 8.18 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the City Manager, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in,any court action arising out of or based upon this Agreement, and the delivery to such agent o a copy of any process in any such action shall constitute valid service upon OWNER. If for-4 f"e-a-son service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process and such service shall constitute valid service upon OWNER. OWWER is amenable to the process so served, submits to the jurisdiction of the Cour(,A;16btained and Waives any and all objections and protests thereto. 8.19 Authority to Execute. The person persons executing this)!'Agreement on behalf of OWNER warrants and represents that he or she/they have the authority- to execute this Agreement on behalf of his or her/theme corporation, partnership or business entry and warrants and represents that he or she/they t�e authority bind OWNER to the performance of its obligations hereunder. �n _m -a AN 1032/034040-0002 14187091.1a10/21/19 215210/19-7923 -22- 643 IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below. OWNER SLF-HB Magnolia, LLC a Delaware limited liability company By: Name �f -Title: `y Dated: 'CITYN" �M m � �' ` CITY OF HUNTINGTON BEACH, a � Californiagmunicipal corporation Af-J a a Mayor $y _AN Dated: s=" _ T ATTEST: - By:� City Clerk APPROVED AS TO LEGAL FORM: City Attorney 1032/034040-0002 14187091.1 a10/21/19 215210/19-7923 -23- 644 EXHIBIT "A" A, 4jP�j v is Zkll j Ift _w q _ w 1032/034040-0002 14187091.1 a10/21/19 -24- 645 LEGAL DESCRIPTION Real property in the City of Huntington Beach, County of Orange, State of California, described as follows: PARCEL 1: (APN: 114-150-36) THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 13, TOWNSHIP 6 SOUTH, RANGE 11 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE RANCHO LAS BOLSAS, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 51 PAGE 14 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING EASTERLY OF THE EASTERLY LINE OF THAT CERTAIN STRIP OF LAND 145.00 FEET WIDE, DESCRIBED AN DESIGNATED AS PARCEL D1-104 IN THE FINAL ORDER OF CONDEMNATION HAD IN CASE NO. 8095- ®F THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF ORANGE,A CERTIFIED COPY WHICH WAS RECORDED SEPTEMBER 8, 1961 IN BOOK 5842 PAGE 7OFOFFICIAL RECORDS, EXCEPT THEREFROM THE "SEVERED PROPERTY' S DESCRIBED IN PART B OFrTHE GRANT DEED FROM THE SOUTHERN CALIFORNIA EDISON COMPANY, A CORPORATION, RECORDED AUGUST 4, 2003 AS INSTRUMENT NO. 2003000931976 OF OFFICIA�NRECORDS ��q�qnp,61HER ALSO EXCEPTING THEREFROM: "ALL OIL GAS PETROLEUM'AN MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER OR WHICRINAY BE PRODUCED FR®M THAT CERTAIN PORTION OF THE HEREINABOVE DESCRIBED AS PARCELS 1 AND 2-TOG ETHER WITH THE RIGHT TO USE THOSE PORTIONS ONLY OF SAID LANDS WHICH UNDERLIEA PLANE PARAL<EL�aTO AND FIVE HUNDRED (500) FEET BELOW THE PRESENT SURFACE OF SAID LANDS F®RTHE PURPOSE OF PROSPECTING FOR � , DEVELOPING AND/OR EXTRA i,,N°G SAID OIL,GARS, PETR®'LEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROMSAID LANDS BY MEANS OF WELLS DRILLED INTO SAID SUBSURFACE OF SAIDLr4ND FROM D�R�LL SITES LOCATED ON OTHER LAND, IT BEING EXPRESSLY 101 UNDERSTOOD AND AGREED THAT SAGRANTOR HEIR SUCCESSORS AND ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON THE SURFACE,OF SAID LANDS OR TO USE SAID LANDS OR ANY PORTION THEREOF TOISAID-'DEPTH OF FNE U ED(500) FEET, FOR ANY PURPOSE WHATSOEVER",AS RESERVED;iWTHE DEED FROM DOROTHY CONSTA` CE SMITH RECORDED JULY 30, 1962 IN BOOK 6194 PAGE 470 OF OFFICIARRECOR® PARCEL 2:(APN.. 114-481 32) r� THAT PORTION OFNN THE NORTHEAST.QUARTER OF FRACTIONAL SECTION 24, TOWNSHIP 6 SOUTH, RANGE 11 WEST, ERNARDINOBASE AND MERIDIAN, IN THE RANCHO LAS BOLSAS, IN THE CITY OF HUNTINGTONBwE,4CH,iC�OUNTY OF ORANGE, STATE OF CALIFORNIA,AS SHOWN ON A MAP RECORDED IN BOOK 51 PAGE 14;IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS. BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF SAID FRACTIONAL SECTION 24 WITH THE NORTHEASTERLY RIGHT OF WAY LINE OF THE ORANGE COUNTY FLOOD CONTROL DISTRICT'S "HUNTINGTON BEACH CHANNEL"AS DESCRIBED IN THE FINAL ORDER OF CONDEMNATION RECORDED IN BOOK 5591 PAGE 500,ET SEQ. OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 891 32' 40" EAST ALONG SAID NORTHERLY LINE OF FRACTIONAL SECTION 24 A DISTANCE OF 360.17 FEET TO THE SOUTHWESTERLY CORNER OF THAT CERTAIN REAL PROPERTY DESCRIBED AND DESIGNATED AS "PARCEL TWO" IN THAT CERTAIN ROAD EASEMENT TO THE CITY OF HUNTINGTON BEACH 1032/034040-0002 14187091.1 a10/21/19 -25- 646 RECORDED OCTOBER 13, 1967 IN BOOK 8418 PAGE 439 OF SAID OFFICIAL RECORDS, SAID SOUTHWESTERLY CORNER BEING ALSO A POINT IN A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 950.00 FEET FROM WHICH POINT A RADIAL LINE OF SAID CURVE BEARS NORTH 570 33' 35" WEST; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 10° 37' 14"AN ARC DISTANCE OF 176.10 FEET; THENCE TANGENT TO SAID LAST MENTIONED CURVE 80.37 FEET TO A POINT IN A CURVE IN SAID NORTHEASTERLY RIGHT OF WAY LINE OF THE ORANGE COUNTY FLOOD CONTROL DISTRICT'S"HUNTINGTON BEACH CHANNEL", SAID LAST MENTIONED CURVE BEING CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 4,717.50 FEET FROM WHICH POINT A RADIAL LINE OF SAID CURVE BEARS NORTH 430 40' 03" EAST; THENCE NORTHWESTERLY ALONG SAID LAST MENTIONED CURVE,THROUGH A CENTRAL ANGLE OF 1° 10' 00"AN ARC DISTANCE OF 96.06 FEET; THENCE TANGENT TO SAID CURVE NORTH 45° 09' 57" WEST 181.36 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM THE "SEVERED PROPERTY" AS DESCRIBED IN PART B OF THE GRANT DEED FROM THE SOUTHERN CALIFORNIA EDISON COMPANY, A.C®RPORATLON, RECORDED AUGUST 4, 2003 AS INSTRUMENT NO. 2003000931976 OF OFFICIAL RECORDS. PARCEL 3: EASEMENTS FOR FIRE WATER SYSTEMS,VEHICULAR ACCESS, FUEL SYSTEMS,AND SUCH OTHER PURPOSES INCIDENTAL THERE TO, CREATED BY THAT CERTAIN FOP FACILITY EASEMENT AGREEMENT DATED JULY 31, 2003 BETWEEN SOUTHERN CALIFORN'IrA EDISON COMPANY AND PACIFIC TERMINALS LLC, A DELAWAREALIMITED LIABIL ' COMPANY, RECORDED AUGUST 4, 2003 AS INSTRUMENT NO. 200300093`1980 OF OFFICIAL REC®RDS, OVER THE FOLLOWING LAND: THAT PORTION OF THE WEST ONE-HALF®F THE SOUTHEAST ONE-QUARTER OF SECTION 13 IN TOWNSHIP 6 SOUTH RANGE 11 WEST, SAN BERNAR, BASE AND.MERIDIAN, IN THE RANCHO LAS BOLSAS, IN THE CITY OF=HUNTINGTON BEACH, CO UN OF ORANGE;STATE OF CALIFORNIA, SHOWN ON A MAP IN BOOK 43 PAGE 2 OF RECORDS OF SURVEY, BEING THE PARCEL OF LAND SHOWN AS PARCEL 3 4 OT LINE &USTMENT`N0.97-3 RECORDED DECEMBER 8, 1997 AS INSTRUMENT NO. 19970628491 OF OFFICIAL REC®;RDS OF SAID COUNTY, FURTHER DESCRIBED AS wm OWN FOLLOWS: Em BEGINNING ATTHE INTERSECTIOW OF THE'CEN"TERLINE OF NEWLAND STREET(ALSO BEING THE R _ z NORTH SOUTH CENTERLINE OF SAID_SECTION 13)AND THE WESTERLY PROLONGATION OF THE NORTH LINE OF PARCEL S@SHOWN'ON SAID MAP;r ENCE SOUTH 00° 16' 41" WEST 578.88 FEET 1 A (SHOWN ON`SAID MAP ASS 00°40' 50" E)ALONG SAID NORTH-SOUTH CENTERLINE OF SAID SECTION 13lAS-SHOWN ON SAID MAP TO THE,TRUE POINT OF BEGINNING; THENCE SOUTH 531 56' 04" EAST 248 54 FEET; THENCE SOUTH 350 31' 50" WEST 6.04 FEET; THENCE SOUTH 541 28 '10" EAST 536.14 FEET; THENCE SOUTH 761 14' 35" EAST 53.96 FEET TO THE NORTHWESTERLY PROLONGATION OF THAT CERTAIN COURSE DESCRIBED AS "SOUTH 560 32' 30" EAST 369 07 FEET, MORE OR LESS"ALONG THE SOUTHERLY LINE OF THE LAND CONVEYED TO A. C. THORPE�BY'DEED RECORDED JUNE 13, 1917 IN BOOK 302 PAGE 69 OF DEEDS IN THE OFFICE OF THE COUNTYRECORDER OF SAID COUNTY; THENCE SOUTH 551 17 06" EAST 301.06 FEET ALONG SAID PROLONGATION AND SAID LINE; THENCE NORTH 001 00' 00" EAST 435.68 FEET; THENCE NORTH 540 42' 53" WEST 175.17 FEET; THENCE NORTH 001 00' 00" EAST 338.21 FEET' THENCE NORTH 900 00' 00" WEST 357.07 FEET; THENCE SOUTH 271 47' 17" WEST 128.15 FEET TO THE NORTHERLY LINE OF THE SOUTHWEST ONE-QUARTER OF THE SOUTHEAST ONE-QUARTER OF SAID SECTION 13; THENCE NORTH 890 29' 32" WEST 373.23 FEET ALONG SAID NORTHERLY LINE TO SAID NORTH- SOUTH CENTERLINE OF SAID SECTION 13 AS SHOWN ON SAID MAP; THENCE SOUTH 001 16' 41" WEST 117.92 FEET ALONG SAID NORTH-SOUTH CENTERLINE (SHOWN ON SAID MAP AS S 00° 40' 50" E) TO THE TRUE POINT OF BEGINNING. 1032/034040-0002 14187091.1 a10/21/19 -26- 647 EXCEPTING THEREFROM; ALL STRUCTURES AND IMPROVEMENTS, FACILITIES, SYSTEMS, FIXTURES AND EQUIPMENT OF ANY KIND NOW OR HEREAFTER LOCATED ON SAID LAND, WHETHER ABOVE OR BELOW THE LAND SURFACE, WHETHER REAL OR PERSONAL PROPERTY,AND WHETHER PERMANENT OR TEMPORARY, INCLUDING WITHOUT LIMITATION,ALL BUILDING, SHEDS, ENERGY PLANTS, TANKS, PIPELINES(INCLUDING METERS, CONNECTIONS,VALVES AND OTHER ASSOCIATED EQUIPMENT), CABLES,WIRES, CONDUITS,CABLE TRAYS,TRENCHES, MAINS, LINES, DUCTS, FENCES,TOWERS,ANTENNAE,TUNNELS, SCREENING WALLS,AWNINGS, RETAINING WALLS, IRRIGATION AND DRAINAGE PIPES AND FACILITIES, LIGHTNING FIXTURES AND SIGNS, CONVEYED TO AES HUNTINGTON BEACH, L.L.C. BY DEED RECORDED JUNE 16, 1998 AS INSTRUMENT NO. 98- 0379306 OF OFFICIAL RECORDS, UNDER THE TERMS AND CONDITIONS SET FORTH THEREIN. PARCEL 4: AN UNDIVIDED ONE-HALF INTEREST IN AND TO THE EASEMENTS(THE "EASEMENTS") FOR THE VARIOUS PURPOSES CONTAINED THEREIN,AS RESERVED; ®EFMEDND SET FORTH IN THE GRANT DEED EXECUTED BY SOUTHERN CALIFORNIA EDISON COMPAN4"Y;,,4A CALIFORNIA CORPORATION RECORDED MAY 7 2001 AS INSTRUMENT-NO. 2001028b988 OF OFFICIAL RECORDS •�� rnil�oiiiin i OF ORANGE COUNTY,AS SUCH EASEMENTS RELATEgila,0°THE EPTC PROPER�T Y1MORE PARTICULARLY DESCRIBED IN THAT CERTAIN GRANT DEED DATED DULY 31, 2003 BETWEEN SOUTHERN CALIFORNIA EDISON COMPANY,A CALIFORNIA CORPORATION,AS,GRANTOR,,,�AND PACIFIC TERMINALS LLC, A DELAWARE LIMITED LIABILITY COMPANY, AS GRANTEE, RECORDED AUGUST 4, 2003 AS INSTRUMENT NO. 2003000931=976 OF OFFICIAL ECORDS;WHEREIN SAID GRANTOR CONVEYED THE FOP PROPERTY TO SA4I®GRANTEE, OVER THE FOLLOWING LAND: z THAT PORTION OF THE WEST ONE-HALF®F THE SOUTHEAST ONEQUARTER OF SECTION 13 IN TOWNSHIP 6 SOUTH RANGE 11 WEST, SAN BERNARDINO BASE AND�,MERIDIAN, IN THE RANCHO LAS BOLSAS, IN THE CITY OF HUNTINGTON BEACH,COUNTY OFORANGE, STATE OF CALIFORNIA, ftl SHOWN ON A MAP IN BOOK 43 PAGE 2 OF RECORDS OF SOR�i�EY&, BEING�THAT PARCEL OF LAND SHOWN AS PARCEL 4RON LOT LINE ADJUSTMENT N =97-3 RECORDED DECEMBER 8, 1997 AS INSTRUMENT N0. 19 7{ 28491 OF OFFICIAL RECORip DS OF SAID COUNTY, FURTHER DESCRIBED AS FOLLOWS: ' BEGINNINGPAITHE�NTERSECTION OF THE CENTER LINE F NEWLAND STREET(ALSO BEING THE NORTH SOUTH CENTERLINE OF SAID5ECTION 131,AND THE WESTERLY PROLONGATION OF THE NORTH LINE OF PARCEL 1 ASSHOWNON SAID MAP; THENCE SOUTH 890 27' 18" EAST, 1,220.30 FEET ALONG THE NORTH LINEO_F SAID PARCEL 1 TO A LINE THAT IS PARALLEL WITH AND WEST ERLY 1®O,FEET FROM THEKEAST LINE OF THE WEST ONE-HALF OF THE SOUTHEAST ONE- QUARTER OF SECTION 13, SAID PARALLEL LINE ALSO BEING THE EAST LINE OF SAID PARCEL 1; THENCE SOUTH 00° 17' 00"WEST 96.13 FEET ALONG SAID EAST LINE TO A POINT OF INTERSECTION WIM_HE SOUTHWESTERLY RIGHT OF WAY OF THE ORANGE COUNTY FLOOD CONTROL DISTRICT HUNTINGTON'BEACH CHANNEL AS DESCRIBED IN PARCEL NO. D1-104 IN THE AMENDED FINAL ORDER OF CONDEMNATION, A CERTIFIED COPY OF WHICH WAS RECORDED NOVEMBER 1, 1963 IN BOOK 688 PAGES 915 THROUGH 922, INCLUSIVE, OF OFFICIAL RECORDS, COUNTY OF ORANGE, STATE OF CALIFORNIA, SAID POINT OF INTERSECTION ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 312.69 FEET,THROUGH WHICH A RADIAL LINE BEARS NORTH 870 30' 32" EAST; THENCE SOUTHERLY 15.27 FEET,ALONG SAID SOUTHWESTERLY RIGHT OF WAY AND SAID NON-TANGENT CURVE THROUGH A CENTRAL ANGLE OF 020 47 51"TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 2,462.50 FEET; THENCE SOUTHEASTERLY 703.87 FEET ALONG SAID SOUTHWESTERLY RIGHT OF WAY AND SAID REVERSE CURVE THROUGH A CENTRAL ANGLE OF 160 22' 38" TO SAID EAST LINE OF THE WEST 1032/034040-0002 14187091.1 a10/21/19 —27- 648 ONE-HALF OF THE SOUTHEAST ONE-QUARTER OF SECTION 13 AS SHOWN ON A MAP RECORDED IN BOOK 74 PAGE 11 OF RECORDS OF SURVEY, OF SAID COUNTY; THENCE SOUTH 00° 17' 00" WEST 679.10 FEET ALONG SAID EAST LINE OF THE WEST ONE-HALF OF THE SOUTHEAST ONE-QUARTER OF SECTION 13 TO THE SOUTHERLY LINE OF THE LAND CONVEYED TO A. C. THORPE BY DEED RECORDED JUNE 13, 1917 IN BOOK 302 PAGE 69 OF DEEDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 471 42' 57" WEST ALONG SAID SOUTHERLY LINE 42.21 FEET; THENCE CONTINUING ALONG SAID SOUTHERLY LINE NORTH 550 21' 57"WEST 83.13 TO SAID EASTLINE OF PARCEL 1 AND THE SOUTHEASTERLY CORNER OF SAID PARCEL 1 AS SHOWN ON SAID MAP RECORDED IN BOOK 42 PAGE 2 OF RECORDS OF SURVEY; THENCE NORTH 001 17' 00" EAST ALONG SAID EAST LINE OF SAID PARCEL 1, 268.17 FEET; THENCE SOUTH 741 13' 00" WEST 256.65 FEET TO SAID SOUTHERLY LINE OF SAID LAND CONVEYED_TO_A. C. THORPE, PAGE 69 OF DEEDS; THENCE NORTH 551 17' 06" WEST ALONG SAID SOUTHERLrj, E 9.69 FEET; THENCE NORTH 000 00' 00" EAST 435.68 FEET; THENCE NORTH 541 42' 53" WEST;175.17 FEET; THENCE NORTH 000 00' 00" EAST 338.21 FEET; THENCE NORTH 909�3W'�00!WEST 357.07 FEET; THENCE SOUTH 270 47' 17" WEST 128.15 FEET TO THE NORTHERLY LINE OFIFHE SOUTHWEST ONE- QUARTER OF THE SOUTHEAST ONE-QUARTER OF SAID SECTION 13; THENCE NORTH 890 29' 32" WEST 373.23 FEET ALONG SAID NORTHERLY LINETO'kSAID NORTH-SOUTH CENTERLINE OF SAID SECTION 13 AS SHOWN ON SAID MAP; THENCE NORTTH 00° 16' 41" EAST 46096 FEET ALONG SAID NORTH-SOUTH CENTERLINE (SHOWN ON SAID MAP AS S 000 40' 50" E)TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM;ALL STRUCTURES AND IMPROVEMENTS FACILITIES, SYSTEMS, FIXTURES AND EQUIPMENT OF ANY KIND NOW ORHEREAFTER LOCATED ON SAID LAND, WHETHER ABOVE OR BELOW THE LAND SURFACE, WHETHER REAL OR PERSONAL PROPERTY,AND WHETHER PERMANENT OR TEMPORARY, INCLUDING WITHOUT LIMITATION�;ALL BUILDING,SHEDS, ENERGY PLANTS; TANKS, PIPELINES (INCLUDING METERS, CONNECTIONS, iIALVES AND�,OTHER ASSOCIATED EQUIPMENT), CABLES,WIRES`CONDUITS, CABLE,TRAYS;�TRENCHES, MAINS, LINES, DUCTS, 41Iii FENCES, i TOWERS ANTENNAE,TUNNELS, SCREENING�WALLS AWNIf�GSi RETAINING WAILS erir N u i , IRRIGATION AND DRAINAGE PIPES AND FACILI FIXTURES AND SIGNS, CONVEYED TO AES HUNTINGTON BEACH L L C B DEED RECORDED JUNE 16, 1998 AS INSTRUMENT NO. 98-0 79306 OF OFFICIAL RECORDS, UNDERTHETERMS AND CONDITIONS SET FORTH THEREIN. PARCEL r AN UNDIVIDED INTERESTI AND TO THE EASEMENTS AND OTHER RIGHTS (THE "EASEMENTS") FOR THE VARIOUS PURPOSES,CONTAINEDATHEREIN, FOR ACCESS, PIPELINE, FUEL OIL TANKS AND RELATED PURPOSES AS RESERVED DEFINED AND SET FORTH IN THAT CERTAIN GRANT DEED DATED SEPTEMBER21, 2001 BY AND BETWEEN SOUTHERN CALIFORNIA EDISON COMPANY,AS GRANTOR,AND THE HUNTINGTON=BEACH WETLANDS CONSERVANCY,AS GRANTEE, RECORDED IN THE OFFICIAL RECORDS ON OCTOBER 5, 2001 AS INSTRUMENT NO. 20010705328,AS SUCH EASEMENTS RELATE TO TI'iE EPTCP,ROPERTY MORE PARTICULARLY DESCRIBED IN THAT CERTAIN GRANT DEED DATED JULY 31, 2003YBETWEEN SOUTHERN CALIFORNIA EDISON COMPANY,A CALIFORNIA CORPORATION,AS-GRANTOR,AND PACIFIC TERMINALS LLC, DELAWARE LIMITED LIABILITY COMPANY,AS GRANTEE, RECORDED AUGUST 4, 2003 AS INSTRUMENT NO. 2003000931976 OF OFFICIAL RECORDS,WHEREIN SAID GRANTOR CONVEYED THE FOP PROPERTY TO SAID GRANTEE, OVER THE FOLLOWING LAND: PARCEL A OF PARCEL 5: THOSE PORTIONS OF THE FRACTIONAL SOUTHWEST ONE-QUARTER OF SECTION 13; THE WEST ONE-HALF OF THE SOUTHEAST ONE-QUARTER OF SECTION 13 AND THE NORTHEAST ONE- QUARTER OF SECTION 24 IN TOWNSHIP 6 SOUTH RANGE 11 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE RANCHO LAS BOLSAS, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ]032/034040-0002 14187091.1 a10/21/19 -28- 649 ORANGE, STATE OF CALIFORNIA, SHOWN ON A MAP IN BOOK 43 PAGE 2 OF RECORDS OF SURVEY, BEING THE PARCEL OF LAND SHOWN AS PARCEL 2 ON LOT LINE ADJUSTMENT NO. 97-3 RECORDED DECEMBER 8, 1997 AS INSTRUMENT NO. 97-0628491 OF OFFICIAL RECORDS OF SAID COUNTY. EXCEPTING THEREFROM; "ALL OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER OR WHICH MAY BE PRODUCED FROM THAT CERTAIN PORTION OF THE LAND HEREINABOVE DESCRIBED WHICH LIES NORTHEASTERLY OF A LINE THAT IS PARALLEL WITH AND 200 FEET NORTHEASTERLY MEASURED AT RIGHT ANGLES, FROM THE NORTHEASTERLY LINE OF THE PACIFIC COAST(STATE) HIGHWAY, 100.00 FEET WIDE, WHICH CERTAIN PORTION OF LAND IS HEREINAFTER REFERRED TO AS AREA W, TOGETHER WITH THE RIGHT TO USE THAT PORTION ONLY All gitg, OF SAID 1A AREA1 WHICH UNDERLIES A PLANE PARALLEL TO AND FNE�HUNDRED (500) FEET BELOW Ak9u � THE PRESENT SURFACE OF SAID AREA'A', FOR THE PURPOSE OFF �OSPECTING FOR, DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROM SAID AREA 'A' BY MEANS OF WELLS DRILLED INTO THE SUBSURFACE OF SAID AREA W FROM DRILL SITES LOCATED ON OTHER LAND] IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT, SAID GRANTOR, HER HEIRS AND ASSIGNS, SHALL HAVE NOUGHT TO ENTER UPON THE SURFACE OF SAID AREA W OR TO USE SAIDIAREA W OR ANY PORTIONjTHEREOF TO SAID DEPTH OF FIVE HUNDRED (500) FEET, FOR ANY P RQSE WHATSOEVER"AS RESERVED IN THE DEED FROM DAISY THORPE HOOK RECORDED APRIL 241fl,,1956 IN 5OOK 3485 PAGE1268 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM; "ALL OIL,GASWPETROLEUM ANC®BOTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER OR WHICH MAY BE-RRODUCED FROM THE REMAINDER OF THE LAND FIRST HEREINABOVE DESCRIBED WHICH SAID REMAINDER OF LAND IS HEREINAFTER REFERRED TO AS AREA 'B',TOGETHER WITH. THE RIGHT TO USE THAT P®RTION ONLYOF SAID AREA'B' WHICH UNDERLIES A PLANE PA,,',,, NEL.T," ND ONE HUNDRED(10D,FEET BELOW THE PRESENT SURFACE OF SAID AREA B', FOR THE-51PRORPOSE®F PROSPECTING I D DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEb,M AND OTHER MIN ERALOR,'$HYDROCARBON SUBSTANCES FROM SAID AREA 'B' BY MEANS OF WELLS DRILLED INTO THE SUBSURFACE OF SAID AREA 'B' FROM DRILL SITES LOCATED ON OTHER LAND,'IT BEINGEXPRESSLY UNDERSTOOD AND AGREED THAT SAID GRANTOR, HER HEIRS AND ASSIGNS, SHAL�HA\/E NO RIGHT TO ENTER UPON THE SURFACE OF SAID AREA 'B' OR TO USESAID AREA'B'�OR ANYPORTION THEREOF TO SAID DEPTH OF ONE HUNDRED (100) FEET, F® ANY PURPOSE-WFiATSOEVAS RESERVED IN THE DEED FROM DAISY HORPE HOOK RECORDED APRIL 24, 1956` BOOK 3485gPAGE 268 OF OFFICIAL RECORDS. FURTHER EXCEPTING THEREFROM "ALL OIL;GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON' OBSTANCES IN AND UNDER OR WHICH MAY BE PRODUCED FROM THAT CERTAIN PORTION OFF-7-THE HEREINABOVE DESCRIBED LAND WHICH LIES NORTHEASTERLY OF A LINE THAT IS PARALLELWITH AND200 FEET NORTHEASTERLY MEASURED AT RIGHT ANGLES, FROM THE SOUTHWESTERLY LINE®F"SAID HEREINABOVE DESCRIBED LAND,WHICH CERTAIN PORTION OF SAID LAND IS HEREINAFTER REFERRED TO AS AREA 'A', TOGETHER WITH THE RIGHT TO USE THAT PORTION ONLY OF SAID AREA W WHICH UNDERLIES A PLANE PARALLEL TO AND FIVE .HUNDRED (500) FEET BELOW THE PRESENT SURFACE OF SAID AREA 'A', FOR THE PURPOSE OF PROSPECTING FOR, DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROM SAID AREA'A, BY MEANS OF WELLS DRILLED INTO THE SUBSURFACE OF SAID AREA W FROM DRILL SITES LOCATED ON OTHER LAND, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT SAID GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON THE SURFACE OF SAID AREA 'A' OR TO USE SAID AREA W OR ANY PORTION THEREOF TO SAID DEPTH OF FIVE HUNDRED (500) 1032/034040-0002 1418 709 1.1 a10/21/19 —29- 650 FEET, FOR ANY PURPOSE WHATSOEVER"AS RESERVED IN THE DEED FROM MILLS LAND AND WATER COMPANY RECORDED OCTOBER 24, 1956 IN BOOK 3688 PAGE 275 OF OFFICIAL RECORDS. FURTHER EXCEPTING THEREFROM; "ALL OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER OR WHICH MAY BE PRODUCED FROM THE REMAINDER OF SAID HEREINABOVE DESCRIBED LAND,WHICH REMAINDER OF LAND IS HEREINAFTER REFERRED TO AS AREA 'B',TOGETHER WITH THE RIGHT TO USE THAT PORTION ONLY OF SAID AREA 'B' WHICH UNDERLIES A PLANE PARALLEL TO AND ONE HUNDRED (100) FEET BELOW THE PRESENT SURFACE OF SAID AREA W, FOR THE PURPOSE OF PROSPECTING FOR, DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROM SAID AREA W BY MEANS OF WELLS DRILLED INTO THE SUBSURFACE OF SAID AREA'B' FROM DRILL SITES LOCATED ON OTHER LAND, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT SAID GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL HAVE NOaRIGHT TO ENTER UPON THE SURFACE OF SAID AREA W OR TO USE SAID AREA B' ORA#YPPPORTION THEREOF TO SAID DEPTH OF ONE HUNDRED (100) FEET, FOR ANY PURPOSE WHATSOEVER"AS RESERVED IN THE DEED FROM MILLS LAND AND WATER COMPANY RECORDED OCTOBER 24 1956 IN BOOK 3688 PAGE 275 OF OFFICIAL RECORDS. 4, PARCEL B OF PARCEL 5: THAT PORTION OF THE SOUTHEAST QUARTER OF THE°SOUTHE.5T_QUARTER OF SECTION 13 IN TOWNSHIP 6 SOUTH RANGE 11 WEST, SANBERNARDIN®BASE AND mftt MERIDIAN, IN THE_°RANCHO LAS BOLSAS, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK*51 P GE 14 OF MIS CEL F NEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND'THAT PORTIONC)F THE NORTH EAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 24UN TOWNSHIP 6 SOUTH, RANGE 11 WEST, SAN BERNARDINO BASE AND MERIDIAN IN THE RANCHO LAS'�$QLSAS ALSOtIN SAID CITY OF � ��� , , HUNTINGTON BEACH, AS�SHOWN';ON A MAP RECORDED�IN BC K 51 PAGE 14 OF MISCELLANEOUS � ra � a� MAPS, IN THE OFFICE®F THE COUNTY RECORDERS F��"SAID COUNTY AND AS THE NORTHERLY PORTION OF SAID SECT�ION,24 IS SHOWN ON A M FILED IN BOOK 6 PAGE 6 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BOUNDED AS FOLLOWS: ON THE WE Tx NallHE'V1/ESTERL E OF TFiE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 13; ® THERLY LINE OF THE LAND DESCRIBED IN THE DEEDITO A. C. THORPERECORDED ]UNE 13, 1917 IN BOOK 302 PAGE 69 OF DEEDS; ON THE NORTHEkSNY THE SOUTHWESTERLY LINEOF A STRIP OF LAND 145.00 FEET WIDE AS DESCRIBED IN PARCEL NO Dl-104 IN THE AMENDED FINAL ORDER OF CONDEMNATION, A CERTIFIED COPY OF WHICH WAS RECORDED NOVEMBER 1, 1963�IN BOOK 6788 PAGE 915 OF OFFICIAL RECORDS; AND ON THE SOUTH EAST%BY THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE NOINT�6'PSOUTHERLY CORNER OF THE LAND DESCRIBED IN THE DEED TO SOUTHERN CALIFORNIA_EDISON COMPANY,A CORPORATION, DATED APRIL 6, 1956 AND RECORDED 5 PAG APRIL 24, 1956 IN BOOK 348E 268 OF OFFICIAL RECORDS AND SAID POINT BEING IN A LINE THAT IS PARALLEL WITH AND 100.00 FEET NORTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM THE NORTHEASTERLY LINE OF THE 40.00 FOOT RIGHT OF WAY OF THE SOUTHERN PACIFIC RAILROAD COMPANY AS DESCRIBED IN THE DEED RECORDED DECEMBER 20, 1905 IN BOOK 123 PAGE 96 OF DEEDS; THENCE SOUTH 551 28' 30" EAST, ALONG SAID PARALLEL LINE, 1,40.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE AT RIGHT ANGLES NORTH 341 31' 30" EAST, 1,05.00 FEET MORE OR LESS,TO THE SOUTHWESTERLY LINE OF THE HEREINABOVE DESCRIBED STRIP OF LAND, 145.00 FEET WIDE. EXCEPTING THEREFROM; "ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER 1032/034040-0002 14187091.1 a10/21/19 —30- 651 HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND AS EXCEPTED AND RESERVED IN VARIOUS INSTRUMENTS OF RECORD"AS SET FORTH IN THE DEED FROM ORANGE COUNTY FLOOD CONTROL DISTRICT RECORDED APRIL 28, 1964 IN BOOK 7022 PAGE 413 OF OFFICIAL RECORDS. EXCEPTING THEREFROM;ALL STRUCTURES AND IMPROVEMENTS, FACILITIES, SYSTEMS, FIXTURES AND EQUIPMENT OF ANY KIND NOW OR HEREAFTER LOCATED ON SAID LAND, WHETHER ABOVE OR BELOW THE LAND SURFACE, WHETHER REAL OR PERSONAL PROPERTY,AND WHETHER PERMANENT OR TEMPORARY, INCLUDING WITHOUT LIMITATION,ALL BUILDING, SHEDS, ENERGY PLANTS, TANKS, PIPELINES(INCLUDING METERS,CONNECTIONS, VALVES AND OTHER ASSOCIATED EQUIPMENT), CABLES,WIRES, CONDUITS, CABLE TRAYS,TRENCHES, MAINS, LINES, DUCTS, FENCES,TOWERS,ANTENNAE,TUNNELS, SCREENING WALLS,AWNINGS, RETAINING WALLS, IRRIGATION AND DRAINAGE PIPES AND FACILITIES, LIGHTING FIV, URES AND SIGNS, CONVEYED TO AES HUNTINGTON BEACH L.L.C. BY DEED RECORDED DUNE 1t6 1998 AS INSTRUMENT N0. 98— k mia�id�ixial v�v,ia . 0379306 OF OFFICIAL RECORDS, UNDER THE TERMS AND,,'C e�,NDITI��NS-SET FORTH THEREIN. °onf m�qd� PARCEL C OF PARCEL 5: L THOSE PORTIONS OF SECTIONS 13 AND 24 IN TOWNSHIP 6 SOUTH RANGE 11 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE RANCHO LAS BOLSAS;�IN THE CITY OF,HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SH01NN ®N A MAP RECORDED IN BOOK 51 PAGE 14, IN THE OFFICE OF THE COUNTY RECORDER OF SAI© COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY CORNER OF THE LAND DESCRIBED IN THE DEED TO SOUTHERN CALIFORNIA EDISON COMPANY,'A CORPORATION, DATIMPRIL 6, 1956 AND RECORDED APRIL 24 1956 IN BOOK 3,485.PAGE 268 OF OFFICIAL RECORDSSAID POINT BEING IN A LINE THAT �g �ii�Piti�N'ti 1� Oi kpd IS PARALLEL WITH AND,100 FEET N�� RTHEASTERLY, MEASUREDA ����kRIGHT ANGLES, FROM THE NORTHEASTERLY LINE OF THE 40A0'i1'FOOT RIGHTOF:WAY OF THE SOUTHERN PACIFIC RAILROAD COMPANY AS DESCRIBED INTHE DEED',RECORDED flECEMBER 20, 1905 IN BOOK 123 PAGE 96 OF DEEDS; THENCE SOUTH 550 28!00 D EAST,ALONG SAID',r PARALLEL LINE; ,040 00 FEET;THENCE AT RIGHT ANGLES, NORTH 340 31' 30" EAST 1,020.23 FEET MORE ORLESS, TO THESQUTHWESTERLY LINE OF THE`145.00 FOOT STRIP OF LAND DESCRIBED AND DESIGNATED AS PA CEL D 1-1—=106 OF THE LIS PENDENS IN AN ACTION ENTITLED "ORANGE COUNTY FLOOD CONTROL DISTRICT, PLAINTIFF,VERSES DAISY E. HURLEY THORPE,AT AL., DEFENDANTS;FILED IN CASE"N080955OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THECOUNTY OF ORANGE,A CIFIED COPY OF SAID LIS PENDENS BEING RECORDED MARCH 5, 1959 IN BOOK 4615 PA,- 6 OF OFFICIAL RECORDS; THENCE NORTHWESTERLY, ALONG kf PtNk " SAID SOUTHWESTERLY LINE, BEING A CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 2,462.50 FEET, AN ARC DISTANC0E OF 973.34 FEET, MORE OR LESS, TO THE EASTERLY LINE OF �ki�mok THE WEST HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 13; THENCE, ALONG SAID EASTERLY LINE, SOUTH 00`4�7,p10" EAST, 686.66 FEET, MORE OR LESS, TO THE SOUTHERLY LINE OF THE LAND CONVEYED TO BY WILLOW LAND COMPANY TO A. C. THORPE, RECORDED JUNE 13, 1917 IN BOOK 302 PAGE 69 OF DEEDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID SOUTHERLY LINE NORTH 480 45'WEST 36.61 FEET; THENCE NORTH 561 32' 30"WEST 88.8 FEET, MORE OR LESS, TO THE NORTHEASTERLY CORNER OF THE LAND DESCRIBED IN THE DEED TO SOUTHERN CALIFORNIA EDISON COMPANY RECORDED IN BOOK 3485 PAGE 268 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID LAST MENTIONED LAND, SOUTH 610 05' 51" WEST 1,013.12 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. 1032/034040-0002 14187091.1 a10/21/19 —31— 652 EXCEPTING THEREFROM; THAT PORTION THEREOF LYING WITHIN THE LAND DESCRIBED AND DESIGNATED AS PARCEL 2 IN THE DEED TO R. C. A. COMMUNICATIONS, INC., A DELAWARE CORPORATION, RECORDED MARCH 30, 1935 IN BOOK 741 PAGE 315 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM; THAT PORTION THEREOF LYING WITHIN THE LAND DESCRIBED IN THE DEED TO GENEVA DEEBLE, AND OTHERS, RECORDED DECEMBER 28, 1935 IN BOOK 792 PAGE 470 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM;THAT PORTION THEREOF LYING WITHIN THE LAND DESCRIBED AS "PARCEL NO. 100396" IN THE FINAL ORDER OF CONDEMNATION FILED AUGUST 23, 1996 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THECOUNTY OF ORANGE, UNDER ACTION NO. 681 121, ENTITLED THE PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF VS. SOUTHERN CALIFORNIA EDISON COMPANY, DEFENDANT, A CERTIFIED COPY OF WHICH WAS RECORDED SEPTEMBER 4, 1996 AS INSTRUMENT NO. 96- 041S1028 OF OFFICIAL RECORDS. EXCEPTING THEREFROM; ALL OIL, GAS, PETROLEUMND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN ON UNDER OR WHICH MAY BE PRODUCED UCED FROM SAID LAND TOGETHER WITH THE RIGHT TO USE THAT PORTION ONLY OF SAID)IA"ND WHICH UNDERLIESA PLANE PARALLEL TO AND FIVE HUNDRED (500) FEET BELOW THE PRESENT,SURFACE OF SAID LAND;FOR THE PURPOSE OF PROSPECTING FOR, DEVELOPING AND/OR EXTRACTUNG SAID OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROM SAIDLAIND BY MEANS OF WELLS DRILLED INTO THE SUBSURFACE OF SAID LAND FROM DRILL SITES LOCATEDDN OTHER LAND WIT ROUT OUT HOWEVER, THE RIGHT TO ENTER UPON TH �ISURFACE OF SAIDyLAND OR TO USE SAID LAND OR ANY PORTION THEREOF TO SAID DEPTH 0, FEVE HUNDR ED (500) FEET FOR ANY PURPOSE WHATSOEVER" Wim AS RESERVED IN THE FINAL ORDER OF CONDEMNATION FILED kkbST 16, 1963 IN ACTION NO. 100040 IN THE SUPERIOR COURT, STATE�F CALIFO,RNIA, IN AND FOR THE COUNTY OF ORANGE, ENTITLED SOUTHERN CALIFORNIA EDISON COMPANY;PLAINTIFF VS. DAISY THORPE HOOK, ET AL., DEFEN®ANTS, A CERTIFIED COPY OF,WHICH WAS'RECORDED AUGUST 16, 1963 IN BOOK 6679 PAGE 964® FFICIAL CORDS APN: 114-150-36 and 114-481-32 " � RE F. M 1032/034040-0002 14187091.1 a10/21/19 —32- 653 EXHIBIT "B" (Map of the Property) 1p 1032/034040-0002 14187091.1 alo/21/19 -33- 654 4� rf� ``1�L 1'T�'• +r xr ZW Oyu, 1� �M! Y•�1G1 ate+ ; +p i 4 t+uar sue s.•�i n� "�'S' "'"" ., r �,�� it� �� 3 .. � � `•,.,_'^A"' /"�s. �z 4 r 14 IP i v r g a ".•..+r �"�'.� r' f �•, Y .",K `. JI•� ..� a • A! ifA y a • ` fl a _ % { � a+� stems � � Y•;1i::« ("� EXHIBIT"C" (Development Plan—Vested Entitlements) [Insert as applicable] General Plan Amendment No. [ 1 Specific Plan No. [ ] Zoning Map Amendment No. [ 1 Zoning Text Amendment No. [ 1 Local Coastal Program Amendment No. f 1 1— — — — t RES I � i OSC� 'I \ RES I 5G \ \ oy \ Z \ \ < ti LEGEND \ i \\----- LAND USE LIMIT \< OS+P HOTEL HOTEL PARCEL \ OS/C OPEN SPACE CONSERVATION PARCEL OS/P OPEN SPACE PARK PARCEL RES RESIDENTIAL PARCEL N #AFUSWE EXHIBIT C . . . . . PLANNING AREAS SCALE: 1032/034040-0002 14187091.1 a10/21/19 -35- 656 EXHIBIT "D" (Hotel Quality Standards) The Hotel shall have a minimum AAA rating of 3-Diamond, or its equivalent. Generally, the hotel's quality, standards, design, decor, and amenities shall be comparable to the Shorebreak Hotel located at the Strand in downtown Huntington Beach. The amenities and quality standards listed below shall be incorporated into the Lodge's design. Design • A unique and distinctive contemporary and rustic design that reflects the beach and surf culture of the City and of the adjacent Huntington Beach Wetlands. • The beach/wetlands design theme shall be prominently incorporated into the landscaping, building structure & design, lobby and common areas, decor, and guest rooms through the use of distinctive design elements, different decorative materials, and architectural features. Entrance • A pronounced covered drive-through entrance with minimum capacity of at least two car depth and width and valet parking. • At least three additional features e.g., bench seating, double entry doors, automatic entry doors,revolving doors, entry vestibule, enhanced facade or driving surface. • An enhanced front desk area with multiple guest service capability that is part of a spacious common area. Amenities • Full-service restaurant, lounge and bar, grab and go option, room service, and a gift shop. • Resort style pool and spa area with an expanded outdoor seating areas and additional recreational facilities (i.e.,ping pong, bocce ball,paddle ball). • Wetlands interpretive programs offered to Lodge guests and the public conducted by environmentalists knowledgeable about the Huntington Beach Wetlands ecosystem. • At least 8,000 square feet of comprehensive, flexible event and meeting space with a business center. 1032/034040-0002 14187091.1 a10/21/19 -36- 657 Guest Rooms • Range from at least 310 to 415 square feet in size with suites up to 500 square feet. • Forty of the guest rooms will be affordable as defined in the Magnolia Tank Farm Specific Plan and will offer equivalent finishes as the market rate rooms. • Feature significant enhancements including, but not limited to, additional seating area, large workspace, quality bedding, refrigerator, technology enhancements, and significant decorative enhancements to the bedroom and bathroom. 1032/034040-0002 14187091.1 al0/21/19 -37- 658 EXHIBIT"E"MAGNOLIA/HAMILTON IMPROVEMENTS (to be revised to include undergrounding of 12 kv distribution line along Magnolia adjacent to ASCON) ASCON STREET IMPROVEMENT EXHIBIT MAGNOLIA 5'REET t HWIITON AVENUE I u:s;:a:vm.•...�.: xx u,«.x�_nwn-au,:nacas:,::sau:,-uwc= '--' �.R. AWM w+mr R wae5 a�' 1 w R'Ly'l w w•rw•- n w wnm 1032/034040-0002 14187091.1 a10/21/19 -38- 659 Ord. No. 4226 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, ROBIN ESTANISLAU, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on January 19,2021, and was again read to said City Council at a Regular meeting thereof held on February 1, 2021, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Kalmick, Posey, Moser, Delgleize NOES: Peterson, Ortiz, Carr ABSENT: None ABSTAIN: None 1,Robin Estanislau,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Wave on February 11,2021. In accordance with the City Charter of said City. Robin Estanislau, City Clerk City Clerk and ex-officio Clerk Deputy City Clerk of the City Council of the City of Huntington Beach, California