RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/ o City Clerk
P. O. Box 3222
Anaheim, California 92805
This Document was electronically recorded by
City of Anaheim
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
IIII 1111111111111111111111111111111Ulhnl111111111 NO FEE 2010000622775 09: 07am 11/ 22/ 10
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0. 00 0. 00 0. 00 0. 00 264. 00 0. 00 0. 00 0. 00
Space Above Line For Recorder' s Use)
This document is exempt from a recording fee
pursuant to Government code Section 6103
DEVELOPMENT AGREEMENT NO. 2010- 00002
BETWEEN
THE CITY OF ANAHEIM
AND
THE IRVINE LAND COMPANY LLC
AND
THE IRVINE COMPANY LLC
rM
TABLE OF CONTENTS
Section1. DEFINITIONS................................................................................................................................. 5
1. 1 Authorizing Ordinance..................................................................................................................... 5
1. 2 CITY................................................................................................................................................. 5
1. 3 Development Agreement.................................................................................................................. 5
1. 4 Development Agreement Date.......................................................................................................... 5
1. 5 Development Agreement Statute...................................................................................................... 5
1. 6 Development Approvals................................................................................................................... 5
1. 7 Development Fees............................................................................................................................ 6
1. 8 Enabling Ordinance.......................................................................................................................... 6
1. 9 Existing Land Use Regulations .........................................
1. 10 Gross Floor Area/ GFA...................................................................................................................... 6
1. 11 Mountain Park Specific Plan ............................................................................................................ 6
1. 12 Mortgage........................................................................................................................................... 6
1. 13 Mortgagee......................................................................................................................................... 6
1. 14 OWNER............................................................................................................................................ 6
1. 15 Permitted Development.................................................................................................................... 7
1. 16 Procedures Resolution...................................................................................................................... 7
1. 17 Project............................................................................................................................................... 7
1. 18 Property ............................................................................................................................................ 7
1. 19 Term.................................................................................................................................................. 7
1. 20 Zoning Code..................................................................................................................................... 7 Section2. TERM............................................................................................................................................... 7
2. 1 Duration of Term.............................................................................................................................. 7
2. 2 Termination in Event of Final Judgment.......................................................................................... 7
2. 3 Automatic Termination upon Completion of Project........................................................................ 7 Section 3. BINDING COVENANTS................................................................................................................ 8 Section 4. EFFECT OF AGREEMENT............................................................................................................ 8 Section5. PROJECT LAND USES................................................................................................................... 8 Section 6. PERMITTED DEVELOPMENT...................................................................................................... 8
6. 1 Permitted Development.................................................................................................................... 8
6. 2 Subdivision Maps............................................................................................................................. 9 Section 7. DENSITY OF PERMITTED BUILDINGS..................................................................................... 9 Section8. ENFORCEMENT............................................................................................................................. 9 Section9. PUBLIC BENEFITS......................................................................................................................... 9
9. 1 Early Dedication of Reservoir Site................................................................................................... 9
9. 1. 1 Reimbursement for Construction of Reservoir................................................................. 10
9. 1. 2 Cooperation for Construction of Reservoir...................................................................... 10
9. 1. 3 Revision of Water Facility Agreement............................................................................. 10
9. 2 Contribution to Priority Youth Sports Facility ................................................................................ 10
9. 3
Investigation of Possibility of Providing Renewable Energy......................................................... 10
9. 4 Weir Canyon Road/La Palma Avenue Intersection and Weir Canyon Road between SR - 91 and La Palma Avenue Improvements........................................................................................ 10 Section 10. PUBLIC IMPROVEMENTS AND SERVICES............................................................................ 10
10. 1 Public Improvements Required to Support the Project................................................................... 1 l
10. 2 Cooperation by CITY and OWNER for Public Improvements...................................................... 1 l
10. 3 Public Park...................................................................................................................................... 12
10. 4 Public School.................................................................................................................................. 12
10. 5 Utilities ( Water, Electrical, Sewer, and Drainage).......................................................................... 12
10. 5. 1 Water Service................................................................................................................... 13
10. 5. 2 Sanitary Sewer and Storm Drains..................................................................................... 13
10. 6 Timing, Phasing and Sequence of Public Improvements and Facilities ......................................... 13
10. 7 Traffic Circulation Improvements.................................................................................................. 13
10. 8 Maintenance of Public Improvements............................................................................................ 13
10. 9 Acceptance of Improvements; As -Built or Record Drawings........................................................ 14 Section 11. DEDICATIONS AND EXACTIONS............................................................................................ 14 Section12. FEES............................................................................................................................................... 14
12. 1 Fees Applicable to the Property ...................................................................................................... 14
12. 2 Fees Applicable for Modified Development Approvals................................................................. 15 Section 13. COVENANTS, CONDITIONS AND RESTRICTIONS............................................................... 15 Section 14. NEXUS/ REASONABLE RELATIONSHIP CHALLENGES....................................................... 15 Section15. EXISTING USES........................................................................................................................... 16 Section 16. FUTURE APPROVALS................................................................................................................. 16
16. 1 Basis for Denying or Conditionally Granting Future Approvals .................................................... 16
16. 2 Standard of Review......................................................................................................................... 16 Section17. AMENDMENT.............................................................................................................................. 16
17. 1 Initiation ofAmendment................................................................................................................. 16
17. 2 Procedure........................................................................................................................................ 16
17. 3 Consent........................................................................................................................................... 16
17. 4 Amendments................................................................................................................................... 17
17. 5 Effect of Amendment to Development Agreement........................................................................ 17 ii
Section 18. NON - CANCELLATION OF RIGHTS.......................................................................................... 17 Section 19. BENEFITS TO CITY..................................................................................................................... 17 Section 20. BENEFITS TO OWNER................................................................................................................ 17 Section 21. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND PROMOTED BY DEVELOPMENT AGREEMENT STATUTE............................................................................................. 18 Section 22. RESERVED AUTHORITY........................................................................................................... 18
22. 1 State and Federal Laws and Regulations........................................................................................ 18
22. 2 Model Codes................................................................................................................................... 18
22. 3 Public Health and Safety ................................................................................................................. 18 Section 23. CANCELLATION.......................................................................................................................... 19
23. 1 Initiation of Cancellation................................................................................................................ 19
23. 2 Procedure........................................................................................................................................ 19
23. 3 Consent of OWNER and CITY...................................................................................................... 19 Section 24. PERIODIC REVIEW..................................................................................................................... 19
24. 1 Time for Review............................................................................................................................. 19
24. 2 OWNER' s Submission................................................................................................................... 19
24. 3 Findings.......................................................................................................................................... 19
24. 4 Initiation of Review by City Council ..........................................
Section 25. EVENTS OF DEFAULT................................................................................................................ 20
25. 1 Defaults by OWNER......................................................................................................................20
25. 2 Specific Performance Remedy........................................................................................................ 20
25. 3 Liquidated Damages Remedy......................................................................................................... 21 Section 26. MODIFICATION OR TERMINATION........................................................................................ 21
26. 1 Notice to OWNER.......................................................................................................................... 21
26. 2 Public Hearing................................................................................................................................ 21
26. 3 Decision.......................................................................................................................................... 21
26. 4 Standard of Review......................................................................................................................... 21
26. 5 Implementation............................................................................................................................... 21
26. 6 Schedule for Compliance................................................................................................................ 22 Section27. ASSIGNMENT............................................................................................................................... 22
27. 1 Right to Assign............................................................................................................................... 22
27. 2 Release upon Transfer.................................................................................................................... 22 Section 28. NO CONFLICTING ENACTMENTS........................................................................................... 23 iii
Section29. GENERAL...................................................................................................................................... 23
29. 1 Force Majeure................................................................................................................................. 23
29. 2 Construction of Development Agreement...................................................................................... 24
29. 3 Severability ..................................................................................................................................... 24
29. 4 Cumulative Remedies..................................................................................................................... 24
29. 5 Hold Harmless Agreement.. ............................................................................................................ 24
29. 6 Cooperation in the Event of Legal Challenge................................................................................. 25
29. 7 Public Agency Coordination........................................................................................................... 25
29. 8 Initiative Measures.......................................................................................................................... 25
29. 9 Attorneys' Fees............................................................................................................................... 25
29. 10 No Waiver....................................................................................................................................... 26
29. 11 Authority to Execute....................................................................................................................... 26
29. 12 Notice.............................................................................................................................................. 26
29. 12. 1 To OWNER...................................................................................................................... 26
29. 12. 2 To CITY........................................................................................................................... 26
29. 13 Captions.......................................................................................................................................... 27
29. 14 Consent........................................................................................................................................... 27
29. 15 Further Actions and Instruments..................................................................................................... 27
29. 16 Subsequent Amendment to Authorizing Statute............................................................................. 27
29. 17 Governing Law............................................................................................................................... 28
29. 18 Effect on Title................................................................................................................................. 28
29. 19 Mortgagee Protection...................................................................................................................... 28
29. 20 Notice of Default to Mortgagee, Right of Mortgagee to Cure ........................................................ 28
29. 21 Bankruptcy...................................................................................................................................... 28
29. 22 Disaffirmance................................................................................................................................. 28
29. 22. 1 New Development Agreement upon Most Senior Mortgagee' s Request ......................... 28
29. 22.2 New Development Agreement Not Required................................................................... 29
29. 23 No Third Party Beneficiaries.......................................................................................................... 29
29. 24 Project as a Private Undertaking..................................................................................................... 29
29. 25 Restrictions..................................................................................................................................... 29
29. 26 Recitals........................................................................................................................................... 30
29. 27 Recording........................................................................................................................................ 30
29. 28 Title Report ..................................................................................................................................... 30
29. 29 Entire Agreement............................................................................................................................ 30
29. 30 Successors and Assigns.................................................................................................................. 30
29. 31 OWNER' s Title of Property ........................................................................................................... 30
29. 32 Exhibits........................................................................................................................................... 30 1v
LIST OF EXHIBITS
Exhibit " A" Site Map
Exhibit `B" Preliminary Title Report with Legal Description DEVELOPMENT AGREEMENT NO. 2010- 00002
BETWEEN
THE CITY OF ANAHEIM
AND
THE IRVINE LAND COMPANY LLC
AND
THE IRVINE COMPANY LLC
This Development Agreement is entered into this 26th day of October 2010, by and between the City ofAnaheim, a charter city and municipal corporation, duly organized and existing under the Constitution and laws ofthe State of California (" CITY") and The Irvine Land Company LLC, a Delaware limited liability company, and The Irvine Company LLC, a Delaware limited liability company ( collectively " OWNER"), pursuant to the authority set forth in Article 2. 5 of Chapter 4 of Division 1 of Title 7, Sections 65864 through 65869. 5 ofthe California Government Code ( the " Development Agreement Statute").
RECITALS
This Development Agreement is predicated upon the following facts:
A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature ofthe State of California adopted the Development Agreement Statute, Sections 65864, et seq., of the California Government Code. The Development Agreement Statute authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: encourage and provide for the development of public facilities in order to support development projects; provide certainty in the approval of development projects in order to avoid the waste of resources and the escalation in project costs and encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public; provide assurance to the applicants of development projects: ( i) that they may proceed with their projects in accordance with existing policies, rules and regulations, subject to the conditions of approval of such projects and provisions of such development agreements, and ii) encourage private participation in comprehensive planning and reduce the private and public economic costs of development.
B. These Recitals refer to and utilize certain capitalized terms which are defined in this Development Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals.
C. CITY desires that the approximately 3, 001 -acre area in Gypsum Canyon, south of the Riverside ( SR -91) Freeway and east and west of the Eastern Transportation Corridor ( SR - 241), be developed with a partially gated residential community with a maximum of 2, 500 residential units, public facilities, private and public infrastructure improvements, a fire station, trails, trail staging area, concession store, public school site, private and public parks, and open space areas (" the Project").
D. In order to carry out the goals and policies of CITY for the Project, on August 23, 2005, the City Council approved General Plan Amendment No. 2005- 00436 and the Mountain Park Specific Plan No. 90- 4, as amended by the City Council on May 9, 2006, and February 13, 2007 ( collectively " Mountain Park Specific Plan"), specifying the development allowed for the Project.
E. On August 23, 2005, the City Council certified Final Environmental Impact Report No. 331 ( State Clearinghouse No. 200407198), adopting a Statement of Findings of Fact, a Statement of Overriding Considerations and the updated and modified Mitigation Monitoring Program No. 137 (collectively " FEIR No. 331 ") to provide for the implementation of the Project and a series of related actions.
F. On March 7, 2006, CITY and OWNER entered into the following agreement to provide for the implementation ofthe Project and a series of related actions: Secured Fire Protection Agreement for Mountain Park (AGR -2802. 01); Agreement Regarding Design & Installation of Electrical System Improvements (AGR -2802. 03); Water Facility Design and Installation Agreement for the Mountain Park Development ( AGR -2802. 4) and First Amendment to the Water Facility Design and Installation Agreement for the Mountain Park Development ( dated September 22, 2009) ( together referred to as " Water Facility Design and Installation Agreement") including any amendments thereto (" Approved Agreements") .
G. On October 17, 2006, CITY and OWNER entered into the following agreement to provide for the implementation of the Project and a series of related actions: Cooperative Agreement for Design and Permitting of Weir Canyon SR -241 Interchange ( AGR -4228).
H. In order to implement the Mountain Park Specific Plan, OWNER has submitted tentative tract maps to the City, and the City Planning Commission approved Tentative Tract Map 16665 on March 20, 2006; Tentative Tract Map 17020 on January 8, 2007; and Tentative Tract Map 17102 on November 27, 2007.
I. OWNER represents that it owns in fee approximately 3, 001 acres of real property located south of the Riverside ( SR -91) Freeway and east and west of the Eastern Transportation Corridor ( SR -241), in CITY, County of Orange (" County"), State of California, ( collectively the Property") in the Mountain Park Specific Plan and more particularly shown and described on Exhibit " A" attached hereto and made a part hereof by this reference.
J. OWNER desires to develop the Property in accordance with the provisions of the Mountain Park Specific Plan and this Development Agreement.
K. CITY desires to accomplish the goals and objectives set forth in CITY' s General Plan and the objectives for the Mountain Park Specific Plan as set forth in subsection 18. 112. 020 2 ofthe Anaheim Municipal Code, and finds that the Project will accomplish said goals and objectives.
L. OWNER will submit tentative maps and/ or vesting tentative maps, ifrequired.
OWNER further anticipates the submission of detailed construction plans and other documentation required by CITY in order for OWNER to obtain its building permits.
M. As consideration for the benefits gained from the vested rights acquired pursuant to the Development Agreement Statute, to conform with the requirements of the Mountain Park Specific Plan, and to comply with the applicable mitigation measures imposed by Mitigation Monitoring Program No. 137 for the Project, CITY is requiring that OWNER construct and install certain public improvements, including off-site traffic circulation improvements, and provide other public benefits.
N. In order to avoid any misunderstandings or disputes which may arise from time to time between OWNER and CITY concerning the proposed development of the Project and to assure each party of the intention of the other as to the processing of any land use entitlements which now or hereafter may be required for such development, the parties believe it is desirable to set forth their intentions and understandings in this Development Agreement. In order for both CITY and OWNER to achieve their respective objectives, it is imperative that each be as certain as possible that OWNER will develop and that CITY will permit OWNER to develop the Project and public improvements as approved by CITY within the time periods provided in this Development Agreement, except as otherwise indicated herein.
O. CITY, as a charter city, enacted Ordinance No. 4377 on November 23, 1982, which makes CITY subject to the Development Agreement Statute. Pursuant to Section 65865 ofthe Development Agreement Statute, CITY adopted Resolution No. 82R- 565 ( the " Procedures Resolution") on November 23, 1982. The Procedures Resolution establishes procedures and requirements for the consideration of development agreements upon receipt of an application.
P. On July 12, 2010, as required by Section 1. 0 of the Procedures Resolution, OWNER submitted to the Planning Department an application for approval of a development agreement ( the " Application"). The Application included a proposed development agreement the " Proposed Development Agreement").
Q. On August 18, 2010, as required by Section 65867 of the Development Agreement Statute and Section 2. 1 of the Procedures Resolution, the Planning Director gave public notice of the City Planning Commission' s intention to consider a recommendation to the City Council regarding adoption of a development agreement.
R. On August 30, 2010, as required by Section 65867 of the Development Agreement Statute and Section 2. 2 of the Procedures Resolution, the City Planning Commission held a public hearing on the Application.
3 S. On that date, the City Planning Commission, after considering the requirements of the California Environmental Quality Act ("CEQA"), including Section 21166 ofthe California Public Resources Code and Section 15162 ofthe CEQA Guidelines, found and determined and recommended that the City Council find that previously - certified FEIR No. 331, together with Mitigation Monitoring Program No. 137, are adequate to serve as the required environmental documentation for this Development Agreement, and related project actions, and satisfy all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
T. The City Planning Commission further found that the Development Agreement meets the following standards set forth in Section 2. 3 ofthe Procedures Resolution, to wit, that the Proposed Project: ( i) is consistent with CITY' s existing General Plan, ( ii) is compatible with the uses authorized in and the regulations prescribed for the applicable zoning district, ( iii) is compatible with the orderly development of property in the surrounding area and ( iv) is not otherwise detrimental to the health, safety and general welfare of the citizens of CITY. Based upon the aforesaid findings, the City Planning Commission recommended that the City Council approve the Application and this Development Agreement pursuant to Resolution No. PC 2010- 074.
U. On September 30, 2010, as required by Section 65867 ofthe Development Agreement Statute and Section 3. 1 of the Procedures Resolution, the City Clerk caused public notice to be given ofthe City Council' s intention to consider adoption of a development agreement.
V. On October 12, 2010, as required by Section 65867 of the Development Agreement Statute and Section 3. 2 of the Procedures Resolution, the City Council held a public hearing on the Application.
W. On that date, the City Council, after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, did find and determined that previously -certified FEIR No. 331, together with Mitigation Monitoring Program No. 137, are adequate to serve as the required environmental documentation for this Development Agreement, and related project actions, and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
X. On October 12, 2010, the City Council found and determined that this Development Agreement: ( i) is consistent with CITY' s existing General Plan; ( ii) is not otherwise detrimental to the health, safety and general welfare of the citizens of CITY; ( iii) is entered into pursuant to and constitutes a present exercise of CITY' s police power; and ( iv) is entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Statute and the Procedures Resolution.
Y. In preparing and adopting the General Plan and in granting the Development Approvals, CITY considered the health, safety and general welfare of the residents of CITY and 4 prepared in this regard an extensive environmental impact report and other studies. Without limiting the generality of the foregoing, in preparing and adopting the General Plan and in granting the Development Approvals, the City Council carefully considered and determined the projected needs ( taking into consideration the planned development of the Project and all other areas within CITY) for water service, sewer service, storm drains, electrical facilities, traffic/ circulation infrastructure, police and fire services, paramedic and similar improvements, facilities and services within the Mountain Park Specific Plan, and the appropriateness of the density and intensity of the development comprising the Project and the needs of CITY and surrounding areas for other infrastructure.
Z. On October 26, 2010, the City Council adopted the Authorizing Ordinance authorizing the execution of this Development Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Statute, as it applies to CITY, and pursuant to the Enabling Ordinance, the Procedures Resolution and CITY' s inherent powers as a charter city, and pursuant to the mutual promises and covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
The following words and phrases are used as defined terms throughout this Development Agreement, and each defined term shall have the meaning set forth below.
1. 1 Authorizing Ordinance. The " Authorizing Ordinance" means Ordinance No. 6186 approving this Development Agreement.
1. 2 CITY. " CITY" means the City of Anaheim, a charter city and municipal corporation, duly organized and existing under its charter and the Constitution and laws of the State of California.
1. 3 Development Agreement. " Development Agreement" means this Development Agreement and any subsequent amendments to this Development Agreement which have been made in compliance with the provisions of this Development Agreement, the Development Agreement Statute, the Enabling Ordinance, and the Procedures Resolution.
1. 4 Development Agreement Date. The " Development Agreement Date" means the latest of (i) the date of recordation in the office of the County Recorder of this Development Agreement, or a memorandum thereof, or ( ii) the effective date of the Authorizing Ordinance.
1. 5 Development Agreement Statute. The " Development Agreement Statute" means Sections 65864 through 65869. 5 of the California Government Code as it exists on the Development Agreement Date.
1. 6 Development Approvals. " Development Approvals" means the Mountain Park Specific Plan, all site specific plans, maps, permits and other entitlements to use of every 5 kind and nature which are approved or granted by CITY in connection with development of the Property, including, but not limited to: site plans, tentative and final subdivision maps, vesting tentative maps, variances, conditional use permits and grading, building and other similar permits. To the extent any of such site specific plans, maps, permits and other entitlements to use are amended from time to time, " Development Approvals" shall include, if OWNER and CITY agree in writing, such matters as so amended. Ifthis Development Agreement is required by law to be amended in order for " Development Approvals" to include any such amendments, Development Approvals" shall not include such amendments unless and until this Development Agreement is so amended.
1. 7 Development Fees. " Development Fees" shall have the meaning ascribed in Section 13. 1 of this Development Agreement.
1. 8 Enabling Ordinance. The " Enabling Ordinance" means Ordinance No. 4377 enacted by CITY on November 23, 1982.
1. 9 Existinja Land Use Regulations. " Existing Land Use Regulations" mean the ordinances and regulations adopted by the City of Anaheim in effect on the Development Agreement Date, including the adopting ordinances and regulations that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development ofthe Property, including, but not limited to, the General Plan, the Zoning Code, the Mountain Park Specific Plan, Mitigation Monitoring Program No. 137, and all other ordinances of CITY establishing subdivision standards, park regulations, impact or development fees and building and improvement standards, but only to the extent the Zoning Ordinance and such other regulations are not inconsistent with this Development Agreement. Existing Land Use Regulations do not include non -land use regulations, which include taxes.
1. 10 Gross Floor Area/ GFA. " Gross Floor Area" or " GFA" means the gross floor area of any buildings which are part of the Permitted Development.
1. 11 Mountain Park Specific Plan. " Mountain Park Specific Plan" means the Mountain Park Specific Plan No. 90- 4 approved by the City Council on August 23, 2005, and amended by the City Council on May 9, 2006, and February 13, 2007.
1. 12 Mortgage. " Mortgage" means a mortgage, deed oftrust or sale and leaseback arrangement or other transaction in which the Property, or a portion thereof or an interest therein, is pledged as security.
1. 13 Mortgagee. " Mortgagee" means the holder ofthe beneficial interest under a Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1. 14 OWNER. " OWNER" is The Irvine Land Company LLC and The Irvine Company LLC, and any person or entity with which or into which The Irvine Land Company LLC and The Irvine Company LLC may merge, and any person or entity who may acquire substantially all of the assets of The Irvine Land Company LLC and The Irvine Company LLC, 2 and any person or entity who receives any of the rights or obligations of under this Development Agreement in accordance with the provisions of Section 28 ofthis Development Agreement.
1. 15 Permitted Development. " Permitted Development" includes all buildings as identified in Section 6 of this Development Agreement.
1. 16 Procedures Resolution. The " Procedures Resolution" is Resolution No. 82R-565 adopted by CITY pursuant to Section 65865 of the Development Agreement Statute.
1. 17 Project. The " Project" means the development project contemplated with respect to the Property, consisting of a partially gated residential community with a maximum of 2, 500 residential units, public facilities, private and public infrastructure improvements, a fire station, trails, trail staging area, concession store, public school site, private and public parks, and open space areas, including but not limited to on-site and off-site improvements, as such development project is further defined, enhanced or modified pursuant to the provisions ofthis Development Agreement and the Development Approvals.
1. 18 Pro e . The " Property" means that certain real property shown and described on Exhibit " A" to this Development Agreement.
Code.
1. 19 Term. " Term" is defined in Section 2 of this Development Agreement.
1. 20 Zoning Code. " Zoning Code" refers to Title 18 ofthe Anaheim Municipal SECTION 2. TERM
2. 1 Duration of Term. The term (" Term") of this Development Agreement shall be that period of time during which this Development Agreement shall be in effect and bind the parties hereto. The Term shall commence on the Development Agreement Date and shall extend for a period of twenty (20) years thereafter, terminating at the end of the day on the twentieth anniversary ofthe Development Agreement Date, subject to the periodic review and modification or termination provisions defined in Section 25 and Section 27, respectively, of this Development Agreement.
2.2 Termination in Event of Final Judgment. This Development Agreement shall terminate and be of no force and effect upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to CITY as a result of any lawsuit filed against CITY to set aside, withdraw or abrogate the approval of the City Council ofthis Development Agreement or iftermination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby.
2. 3 Automatic Termination upon Completion of Project. If not already terminated by reason of any other provision in this Development Agreement, or for any other reason, this Development Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Development Agreement and 7 any further amendments thereto and the issuance of all occupancy permits and acceptance by CITY of all dedications and improvements as required by the development of the Project.
SECTION 3. BINDING COVENANTS
The provisions ofthis Development Agreement to the extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits of this Development Agreement shall bind and inure to the benefit ofthe parties and all successors in interest to the parties hereto.
SECTION 4. EFFECT OF AGREEMENT
As a material part ofthe consideration ofthis Development Agreement, unless otherwise provided herein, the parties agree that the Existing Land Use Regulations shall be applicable to development of the Project. In connection with all subsequent discretionary actions which CITY takes or has the right to take under this Development Agreement relating to the Project, including any review, approval, renewal, conditional approval or denial, CITY, shall exercise its discretion or take action in a manner which complies and is consistent with the Existing Land Use Regulations ( as same may be modified in accordance with this Development Agreement) and such other standards, terms and conditions expressly contained in this Development Agreement.
CITY shall accept and timely process, in the normal manner for processing such matters as may then be applicable, all applications for further approvals with respect to the Project called for or required under this Development Agreement, including, any necessary site plan, tentative map, vesting tentative map, final map and any grading, construction or other permits filed by OWNER in accordance with the Development Approvals.
SECTION 5. PROJECT LAND USES
The Property shall be used for such uses as may be permitted by the Development Approvals and the Existing Land Use Regulations. The Term, the density and intensity of use, developable GFA, footprint square footage, the maximum height and size of proposed buildings and structures, lot sizes, set back requirements, zoning, public improvements, and the provisions for reservation or dedication of land for public purposes shall be those set forth in the Development Approvals, the Existing Land Use Regulations and this Development Agreement pursuant to Section 65865. 2 of the Development Agreement Statute.
SECTION 6. PERMITTED DEVELOPMENT
6. 1 Permitted Development. The Permitted Development shall be as follows:
Development of a partially gated residential community with a maximum of 2, 500 residential units, public facilities, private and public infrastructure improvements, a fire station, trails, trail staging area, concession store, public school site, private and public parks, and open space areas as defined in the Mountain Park Specific Plan, and as further defined by approved tentative subdivision maps and related plans that implement the Mountain Park Specific Plan. 8 6.2 Subdivision Mans. OWNER may file and process new and existing tentative maps or vesting tentative maps consistent with the California Subdivision Map Act and Anaheim Municipal Code Chapters 17. 08 and 17. 09. Pursuant to Government Code Section 66452. 6( a) the term of any tentative map or vesting tentative map approved for the Property shall automatically be extended for the Term ofthis Development Agreement.
SECTION 7. DENSITY OF PERMITTED BUILDINGS
The Permitted Buildings shall be between the minimum and maximum sizes, and shall not exceed the maximum heights and maximum footprints as defined in the Mountain Park Specific Plan and in Chapter 18. 112 ofthe Zoning Code ( Mountain Park Specific Plan No. 90-4 SP 90- 4), Zoning and Development Standards).
SECTION 8. ENFORCEMENT
Unless this Development Agreement is terminated or cancelled pursuant to the provisions of this Development Agreement, this Development Agreement or any amendment hereto, shall be enforceable by any party hereto notwithstanding any change hereafter in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance or building ordinance adopted by CITY which alters or amends the rules, regulations or policies of Development of the Project as provided in this Development Agreement pursuant to Section 65865.4 ofthe Development Agreement Statute; provided, however, that the limitations of this Section shall not apply to changes mandated by State or Federal laws or other permissible changes or new regulations as more particularly set forth in Section 23 of this Development Agreement.
SECTION 9. PUBLIC BENEFITS
9. 1 Early Dedication of Reservoir Site. CITY shall construct the 1, 320 -foot zone reservoir south of Development Area 7, as specified Section IV ofthe Mountain Park Specific Plan (" Reservoir"). OWNER shall irrevocably offer to dedicate, or cause to be irrevocably offered for dedication, to CITY such real property and easements necessary for the construction, maintenance, and operation of the Reservoir (" Reservoir Property and Easements"). The dedication of the Reservoir Property and Easements shall be made on separate instruments, acceptable to CITY in form and content, to be recorded within six ( 6) months ofthe Development Agreement Date, or in a timeframe as mutually agreed upon by City and Owner.
The Reservoir Property and Easements shall be transferred to CITY in fee without reservation of mineral, oil, gas and water rights. The Reservoir Property and Easements shall contain a use restriction for public purposes but shall be subject to no other (i) covenants, conditions, or restrictions ( including, without limitation, architectural and maintenance) or (ii) use controls. As used in the previous sentence, public purposes mean those uses related to or necessary for the installation, construction, maintenance, and operation of the Reservoir, water service improvements, and any emergency telecommunication facilities.. Nothing contained in this Development Agreement, however, shall be deemed to preclude CITY from exercising the power of eminent domain with respect to the Property or the Project, or any part thereof. Water Facility Design and Installation Agreement shall be revised to reflect the requirements contained herein.
E
9. 1. 1 Reimbursement for Construction of Reservoir. CITY intends to construct the Reservoir and/ or phases of the Reservoir project before development ofthe Project OWNER will reimburse CITY for construction of the Reservoir according to the fair -share funding responsibility for OWNER stated in the Water Facility Design and Installation Agreement.
9. 1. 2 Cooperation for Construction of Reservoir. The Reservoir and its access roads shall be constructed in accordance with the plans and specifications to be prepared by the CITY. OWNER may review these plans and specifications and provide suggestions to the CITY. OWNER agrees to cooperate with CITY should CITY desire to expand the Reservoir.
CITY agrees to construct appropriate visual screening for the Reservoir consistent with the requirements in FEIR No. 331. CITY agrees that the location of the Reservoir access easements and connecting water line from the Reservoir to existing infrastructure shall not constrain grading in the Project development area, and OWNER and CITY agree to determine an appropriate location for the Reservoir access easements and connecting water line.
9. 1. 3 Revision of Water Facility Agreement. Water Facility Design and Installation Agreement shall be revised to reflect the provisions contained herein.
9. 2 Contribution to Priority Youth Sports Facility. OWNER agrees to contribute $500 per dwelling unit upon issuance ofeach building permit for residential development to improve Priority youth sports facilities, either as specified in the 2004 Final Report by the Mayor' s Task Force for Youth Sports Facilities or as mutually agreed by CITY and OWNER.
9. 3
Investigation of Possibility of Providing Renewable Energy. OWNER agrees to investigate the possibility of providing renewable energy for 25% of the dwelling units within the Project. If OWNER decides to install renewable energy sources in dwelling units within the Project, CITY agrees to assume responsibility for the off-site renewable energy systems, as defined in the Agreement Regarding Design & Installation of Electrical System Improvements, dated March 7, 2006.
9.4 Weir Canyon Road/ La Palma Avenue Intersection and Weir Canyon Road between SR -91 and La Palma Avenue Improvements. OWNER agrees to reimburse CITY the amount of $78, 634. 00 for the fair share of construction costs for construction of traffic circulation improvements at the intersection of Weir Canyon Road and La Palma Avenue and the amount of $68, 538. 00 for the fair share of construction costs for construction of traffic circulation improvements on Weir Canyon Road between SR -91 and La Palma Avenue that were completed on or about June 2007, as required by Mitigation Monitoring Program No. 137, including interest thereon in an amount equal to the average annual rate of interest earned by the Treasurer of the City of Anaheim on the investment of pooled funds calculated from the Date of Recordation of this Development Agreement to the date of issuance of the first building permit when such payment is due.
SECTION 10. PUBLIC IMPROVEMENTS AND SERVICES
10 10. 1 Public Improvements Required to Supportthe Project. In addition to performing any other obligations heretofore imposed as conditions of approval set forth in Section 9 of this Development Agreement as material consideration for CITY' s entering into this Development Agreement, OWNER shall undertake the construction and installation of public improvements required by the Mountain Park Specific Plan and FEIR No. 331 to support the Project and to enhance area -wide traffic circulation and emergency police and fire protection service in conformance with the Existing Land Use Regulations, including, but not limited to, the following:
a) Extension of Weir Canyon Road;
b) Relocation and widening of Santa Ana Canyon Road;
c) Extension of Gypsum Canyon Road;
d) Widening of Gypsum Canyon Road;
e) Construction of future public street segment of Mountain Park Drive from Weir Canyon Avenue;
f) A fire station;
g) Trail and public park improvements, consistent with Section 10.3 of this Development Agreement;
h) Water, sewer, and public storm drainage improvements, consistent with Section 10. 5 ofthis Development Agreement, except the Reservoir and the dual purpose facilities (" Dual Purpose Facilities") identified in the Water Facility Design and Installation Agreement,; and
i) Electrical systems, consistent with Section 10. 5 of this Development Agreement.
10. 2 Cooperation by CITY and OWNER for Public Improvements. The improvements listed in Section 10. 1 of this Development Agreement will be designed and constructed in phases as required to service the Project or as otherwise required by the Mountain Park Specific Plan and FEIR No. 331. OWNER shall design and construct these public improvements in accordance with all applicable federal, state and CITY laws, ordinances, regulations, codes, standards, and other applicable requirement. These improvements shall be subject to CITY' s approval. CITY shall cooperate with OWNER for the purpose of coordinating all public improvements constructed under the Development Approvals or this Development Agreement to existing or newly constructed public improvements, whether located within or outside of the Property. OWNER shall be responsible for and use good faith efforts to acquire any right( s)- of-way necessary to construct the public improvements required by, or otherwise 11 necessary to comply with the conditions of, this Development Agreement or any Development Approvals. Should it become necessary due to OWNER' s failure or inability to acquire said right(s)- of-way within four (4) months after OWNER begins its efforts to so acquire said right( s)- of-way, CITY shall negotiate the purchase of the necessary right( s)- of-way to construct the public improvements as required by, or otherwise necessary to comply with the conditions of, this Development Agreement and, if necessary in accordance with the procedures established by State law, and the limitations hereinafter set forth in this Section, CITY may use its powers of eminent domain to condemn said required right(s)- of-way. OWNER agrees to pay for all costs associated with said acquisition and condemnation proceedings. If CITY cannot make the proper findings or if for some other reason under the condemnation laws CITY is prevented from acquiring the necessary right(s)- of-way to enable OWNER to construct the public improvements required by, or otherwise necessary to comply with the conditions of, this Development Agreement, then the parties agree to amend this Development Agreement to modify OWNER' s obligations accordingly. Any such required modification shall involve the substitution of other considerations or obligations by OWNER ( of similar value) as are negotiated in good faith between the parties hereto. Nothing contained in this Section shall be deemed to constitute a determination or resolution of necessity by CITY to initiate condemnation proceedings.
10. 3 Public Park. OWNER shall be required to dedicate and fully improve a 15 -acre public community park as described in Section 11( a)( 3) of the Mountain Park Specific Plan and which was included in the park master plan of development as reviewed and approved by the Parks and Recreation Commission on October 25, 2006. Park details, such as the design and use of the community recreation building shall be addressed
10.4 Public School. OWNER shall be required to comply with Planning and Zoning Law, Chapters 4. 7 and 4. 9, Government Code Section 65970 et seq. and Section 17620 of the Education Code, regarding any obligation for payment of fees, charges, dedications or other requirements for school facilities established pursuant to such state law. Owner has entered into a School Facilities Agreement with Orange Unified School District (" OUSD") that exceeds the requirements of State Law. Owner shall meet the obligations of this agreement, as may be modified at the discretion of OWNER and OUSD.
10. 5 Utilities (Water, Electrical. Sewer, and Drainage). OWNER shall construct the public improvements necessary for the provision ofrequisite water, electrical, sewer and drainage requirements for Project as more fully set forth in the Development Approvals and Approved Agreements. As for the water service improvements, except for the Reservoir and the Dual Purpose Facilities, prior to the approval of each large -lot or final tract map, whichever occurs first, OWNER shall submit plans, including engineering studies, for the water service improvements within the tract for review and approval by the Public Utilities Department. The water service improvements shall be constructed in accordance with the requirements of the Public Utilities Department. OWNER shall construct and relocate utilities as may be required to provide services to the Permitted Development on the Property or that are displaced by the construction of the Permitted Development. As OWNER submits detailed construction plans in order to obtain building permits for the Permitted Development and/ or the size and nature of the Project varies, the utilities that OWNER will construct or relocate may be revised accordingly by CITY.
12 10. 5. 1 Water Service. Except the Reservoir and the Dual Purpose Facilities, OWNER will provide engineering studies to size the water system improvements within the Project. Said engineering studies shall be conducted prior to signature approval of water improvement plans. The studies shall be subject to the approval of the General Manager, Public Utilities Department or authorized designee. Including the Reservoir and the Dual Purpose Facilities, the water service improvements shall be constructed incrementally and paid in accordance with the Water Facility Design and Installation Agreement. OWNER will conform with Rule 15C ofthe Water Utility' s Rates, Rules and Regulations which provides for, in part, a fee based on acreage and the advancement of additional funds to construct the upgraded water facilities. OWNER shall be entitled to reimbursement in accordance with the terms of Rule 15C for the advancement of additional funds to construct the upgraded water system improvements.
10. 5. 2 Sanitary Sewer and Storm Drains. Prior to final building and zoning inspections for the first building within the Permitted Development, OWNER will construct all sanitary sewers and storm drains and appurtenant structures ( including treatment control Best Management Practices as required by the Water Quality Management Plan) to serve the ultimate development of the Property as provided by areawide engineering studies to be conducted prior to issuance of any building permits for the first building within the Permitted Development and updated prior to the issuance of any building permits for each subsequent building within the Permitted Development. All studies shall be subject to the approval of the City Engineer.
OWNER will construct improvements identified in said studies. The systems may be constructed incrementally subject to the approval of the City Engineer, provided that said incremental phasing is adequate to provide capacity for the proposed development phasing.
10. 6 Timing, Phasing and Sequence of Public Improvements and Facilities.
The timing, phasing and sequence ofthe construction of public improvements, the Reservoir and facilities or the payment offees therefor shall be constructed or paid in accordance with the timing, phasing and sequence set forth in this Development Agreement and/ or the Approved Agreements.
10. 7 Traffic Circulation Improvements. In order to assist CITY in providing for area -wide traffic circulation as required by this Project, OWNER shall cause to be made the traffic circulation improvements identified for the Project including all applicable measures from Mitigation Monitoring Program No. 137.
10. 8 Maintenance of Public Improvements. CITY shall not be responsible or liable for the maintenance or care of the public improvements, identified in Section 10. 1 above, intended to be dedicated to the CITY, until CITY approves and accepts them. CITY shall exercise no control over the public improvements until accepted. Any use by any person of the public improvements, or any portion thereof, shall be at the sole and exclusive risk of the OWNER at all times prior to CITY' s acceptance of the public improvements. OWNER shall maintain all the public improvements in a state of good repair until they are completed by OWNER and approved and accepted by CITY. If OWNER fails to properly prosecute its maintenance obligation under this Section, CITY may do all work necessary for such maintenance and the cost thereof shall be the responsibility of OWNER under this Agreement.
CITY shall not be responsible or liable for any damages or injury of any nature in any way 13 related to or caused by the public improvements or their condition prior to acceptance. Approval and acceptance of public improvements shall not be unreasonably withheld by the City.
10. 9 Acceptance of Improvements, As -Built or Record Drawings. Ifthe public improvements, referenced above, are properly completed by OWNER and approved by the City Engineer, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, the CITY may accept the public improvements. Prior to the total or partial acceptance of the public improvements by CITY, OWNER shall file with the Recorder' s Office of the County of Orange a notice of completion for the accepted public improvements in accordance with California Civil Code section 3093, at which time the accepted public improvements shall become the sole and exclusive property of CITY without payment therefore. Issuance by CITY of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute CITY' s acceptance or approval of any public improvements. Notwithstanding the foregoing, CITY may not accept any public improvements unless and until OWNER provides the required sets of "as - built" or record drawings or plans to the CITY for review and approval for all such public improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
SECTION 11. DEDICATIONS AND EXACTIONS
The Project will be designed, permitted, constructed, marketed and occupied by future homeowners in phases. Right- of-way or property for required public improvements shall be irrevocably offered for dedication as required for the approval and recordation of the subdivision maps implementing the various stages of the Project or as otherwise required by the Specific Plan and FEIR No. 331. These dedications shall be in fee or as an easement at the discretion of CITY. The CITY may accept the OWNER' s offer of dedication upon OWNER' s completion and acceptance by CITY of the associated improvements in compliance with the specifications as approved by CITY. Nothing contained in this Development Agreement, however, shall be deemed to preclude CITY from exercising the power of eminent domain with respect to the Property or the Project, or any part thereof. Section 9 of this Agreement governs the dedication of the Reservoir Property and Easements.
SECTION 12. FEES
12. 1 Fees Applicable to the Property. During the Term of this Development Agreement, the fees applicable to the Property shall be the Development Fees as defined in this Section. The term " Development Fees" shall mean all existing impact and development fees applicable to the Project on the Development Agreement Date charged by CITY for the purpose of defraying all or a portion of the cost of public facilities related to development of the Project, subject to any increase in the amount of the Development Fees applicable to the Project on the date of issuance of building permit: provided, however that the City shall not increase the fees and charges established in Section 9.2 and Section 9.4 of this Development Agreement, which are applicable to the Project.
14 The parties acknowledge that the following fees, taxes, and charges do not constitute Development Fees and that nothing in this Development Agreement is intended or shall be construed to release OWNER from the obligation to pay these fees, taxes, and charges, including increases, if and when they become due:
a) CITY' s normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover CITY' s costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; and
b) Fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether CITY collects those fees and charges; and c) Community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the property development tax payable under the Anaheim Municipal Code; and
d) Any fees and charges set forth in Rule 15 of the Water Utilities Rates, Rules and Regulations; and
e) Any fees, costs, charges, mitigations, and indemnities associated with the annexation of the Property into the service area of the Orange County Water District.
12. 2 Fees Applicable for Modified Development Approvals. Notwithstanding Section 13. 1 of this Development Agreement, if and to the extent that the Development Approvals applicable to the Property are amended after the Development Agreement Date and OWNER is authorized under the modified Development Approvals to develop any additional. density or intensity of use beyond what is allowed as of the Development Agreement Date, CITY shall retain the right to require OWNER to pay all CITY fees for such additional density or intensity of use to the extent such fees would be applicable in the absence ofthis Development Agreement.
SECTION 13. COVENANTS, CONDITIONS AND RESTRICTIONS
In consideration for CITY entering into this Development Agreement and other consideration set forth in this Development Agreement, OWNER agrees to record unsubordinated covenants, conditions and restrictions applicable to the Property in a form and content satisfactory to the Planning Director, City Engineer and the City Attorney.
SECTION 14. NEXUS/ REASONABLE RELATIONSHIP CHALLENGES
OWNER consents to, and waives any right it may have now or in the future to challenge the legal validity of the conditions, requirements, policies or programs required by Existing Land 15 Use Regulations or this Development Agreement including, without limitation, any claim that they constitute an abuse of the police power, violate substantive due process, deny equal protection of the laws, effect a taking of property without payment ofjust compensation, or impose an unlawful tax.
SECTION 15. EXISTING USES
CITY and OWNER agree that those existing legally established uses on the Property may be retained until the Project is implemented.
SECTION 16. FUTURE APPROVALS
16. 1 Basis for Denying or Conditionally Granting Future Approvals. Before OWNER can begin grading on the Property or other development of the Property, OWNER must secure several additional permits and/or approvals from CITY. The parties agree that to the extent said Development Approvals are ministerial in nature, CITY shall not, through the enactment or enforcement of any subsequent ordinances, rules, regulations, initiatives, policies, requirements, guidelines, or other constraints, withhold such approvals as a means of blocking construction or of imposing conditions on the Project which were not imposed during an earlier approval period unless CITY has been ordered to do so by a court of competent jurisdiction.
Notwithstanding the previous sentence, CITY and OWNER will use their best efforts to ensure each other that all applications for and approvals of grading permits, building permits or other developmental approvals necessary for OWNER to develop the Project in accordance with this Development Agreement are sought and processed in a timely manner.
16. 2 Standard of Review. The rules, regulations and policies that apply to any additional Development Approvals which OWNER must secure prior to the Development of the Property shall be the Existing Land Use Regulations, as defined in this Development Agreement.
SECTION 17. AMENDMENT
17. 1
Initiation of Amendment. Either party may propose an amendment to this Development Agreement.
17. 2 Procedure. Except as set forth in Section 18. 4 ofthis Development Agreement, the procedure for proposing and adopting an amendment to this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution.
17. 3 Consent. Except as provided elsewhere within this Development Agreement, any amendment to this Development Agreement shall require the consent of both parties. No amendment of this Development Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each party hereto.
16 17. 4 Amendments. Subject to the foregoing provisions of this Section, the parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the parties under this Development Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Development of the Project and with respect to those items covered in general terms under this Development Agreement. If and when the parties find that changes or adjustments are necessary or appropriate to further the intended purposes ofthis Development Agreement, they may, unless otherwise required by law, effectuate such changes or adjustments as specified in the Development Approvals.
17. 5 Effect of Amendment to Development Agreement. The parties agree that except as expressly set forth in any such amendment, an amendment to this Development Agreement will not alter, affect, impair, modify, waive or otherwise impact any other rights, duties or obligations of either party under this Development Agreement.
SECTION 18. NON -CANCELLATION OF RIGHTS
Subject to defeasance pursuant to Sections 25, 26 or 27 of this Development Agreement, the Development Approvals as provided for in this Development Agreement shall be final and the rights once granted thereby shall be vested in the Property upon recordation of this Development Agreement.
SECTION 19. BENEFITS TO CITY
The direct and indirect benefits CITY (including, without limitation, the existing and future anticipated residents of CITY) expects to receive pursuant to this Development Agreement include, but are not limited to, the following:
20. 1 The participation of OWNER in the accelerated, coordinated and more economic construction, funding and dedication to the public, as provided in this Development Agreement, of certain of the vitally needed on-site and area -wide public improvements and facilities, and assurances that the entire Project will be developed as set forth in this Development Agreement in order to encourage development ofthe Mountain Park Specific Plan; and
20.2 The considerations set forth in Sections 9, 10, and 11 of this Development Agreement.
SECTION 20. BENEFITS TO OWNER
OWNER has expended and will continue to expend large amounts of time and money on the planning and infrastructure construction for the Project. OWNER asserts that OWNER would not make any additional expenditures, or the advanced expenditures required by this Development Agreement, without this Development Agreement and that any additional expenditures which OWNER makes after the Development Agreement Date will be made in reliance upon this Development Agreement. Without limiting the generality of the foregoing, 17 this Development Agreement provides for the completion of public improvements and facilities prior to the time when they would be justified economically in connection with the phasing of the Project, and of a size which would be justified only by the magnitude of the Project provided for by this Development Agreement. The benefit to OWNER under this Development Agreement consists of the assurance that OWNER will preserve the right to develop the Property as planned and as set forth in this Development Agreement. The parties acknowledge that the public benefits to be provided by OWNER to CITY pursuant to this Development Agreement are in consideration for and reliance upon assurances that the Property can be developed in accordance with this Development Agreement.
SECTION 21. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE
The mutual undertakings and assurances described above and provided for in this Development Agreement are for the benefit of CITY and OWNER and promote the comprehensive planning, private and public cooperation and participation in the provision of public facilities, and the effective and efficient development of infrastructure and facilities supporting development which was contemplated and promoted by the Development Agreement Statute. CITY agrees that it will not take any actions which are intended to circumvent this Development Agreement; provided, however, that any action of the electorate shall not be deemed an action for purposes of this section.
SECTION 22. RESERVED AUTHORITY
22. 1 State and Federal Laws and Reeulations. In the event that the State or Federal laws or regulations enacted after this Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of the Development Agreement, such provisions of the Development Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Development 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. Notwithstanding the foregoing, CITY shall not adopt or undertake any rule, regulation or policy which is inconsistent with this Development Agreement until CITY makes a finding that such rule, regulation or policy is reasonably necessary to comply with such State and Federal laws or regulations.
22.2 Model Codes. This Development Agreement shall not prevent CITY from applying new rules, regulations and policies contained in model codes, including, but not limited to, the Anaheim Building Code as adopted in Title 15, Section 15. 02.
22. 3 Public Health and Safety. This Development Agreement shall not prevent CITY from adopting new rules, regulations and policies, including amendments or modifications to model codes described in Section 23. 2 of this Development Agreement which directly result from findings by CITY that failure to adopt such rules, regulations or policies would result in a condition injurious or detrimental to the public health and safety. Notwithstanding the foregoing, CITY shall not adopt any such rules, regulations or policies which prevent or preclude 18 compliance with one or more provisions of this Development Agreement until CITY makes a finding that such rules, regulations or policies are reasonably necessary to correct or avoid such injurious or detrimental condition.
SECTION 23. CANCELLATION
23. 1
Initiation of Cancellation. Either party may propose cancellation of this Development Agreement.
23. 2 Procedure. The procedure for proposing a cancellation of and canceling this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution and Section 65868 ofthe California Government Code.
23. 3 Consent of OWNER and CITY. Any cancellation of this Development Agreement shall require the mutual consent of OWNER and CITY.
SECTION 24. PERIODIC REVIEW
24. 1 Time for Review. CITY shall, at least every twelve ( 12) months after the Development Agreement Date, review the extent of good faith compliance by OWNER with the terms of this Development Agreement. Such periodic review shall determine compliance with the terms ofthis Development Agreement pursuant to California Government Code Section 65865. 1 and other successor laws and regulations.
24. 2 OWNER' s Submission. Each year, not less than forty- five ( 45) days nor more than sixty (60) days prior to the anniversary of the Development Agreement Date, OWNER shall submit evidence to the City Council of its good faith compliance with the terms and conditions ofthis Development Agreement. OWNER shall notify the City Council in writing that such evidence is being submitted to CITY pursuant to the requirements of Section
6.2 of the Procedures Resolution. OWNER shall pay to CITY a reasonable processing fee in an amount as CITY may reasonably establish from time to time on each occasion that OWNER submits its evidence for a periodic review.
24. 3 Findings. Within forty-five (45) days after the submission of OWNER' s evidence, the City Council shall determine, on the basis of substantial evidence, whether or not OWNER has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. Ifthe City Council finds that OWNER has so complied, the review for that period shall be deemed concluded. If the City Council finds and determines, on the basis of substantial evidence, that OWNER has not complied in good faith with the terms and conditions ofthis Development Agreement for the period under review, OWNER shall be given at least sixty (60) days to cure such non- compliance and if the actions required to cure such noncompliance take more than sixty ( 60) days, then CITY shall give OWNER additional time provided that OWNER is making reasonable progress towards such end. If during the cure period, OWNER fails to cure such noncompliance or is not making reasonable good faith progress towards such end, then the City Council may, at its discretion, proceed to modify or 19 terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 27 of this Development Agreement.
24.4 Initiation of Review by City Council. In addition to the periodic review set forth in this Development Agreement, the City Council may at any time initiate a review ofthis Development Agreement upon the giving of written notice thereof to OWNER. Within thirty 30) days following receipt of such notice, OWNER shall submit evidence to the City Council of OWNER' s good faith compliance with this Development Agreement and such review and determination shall proceed in the manner as otherwise provided in this Development Agreement.
SECTION 25. EVENTS OF DEFAULT
25. 1 Defaults by OWNER. Within forty- five ( 45) days after the submission of OWNER' s evidence, the City Council shall determine on the basis of substantial evidence, whether or not OWNER has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. Ifthe City Council finds that OWNER has so complied, the review for that period shall be deemed concluded. Ifthe City Council finds and determines, on the basis of substantial evidence, that OWNER has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, OWNER shall be given at least sixty ( 60) days to cure such non- compliance and ifthe actions required to cure such non- compliance take more than sixty (60) days, then CITY shall give OWNER additional time provided that OWNER is making reasonable progress towards such end. If during the cure period OWNER fails to cure such non- compliance or is not making reasonable progress towards such end, then the City Council may, at its discretion, proceed to modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 27 ofthis Development Agreement.
25. 2 Specific Performance Remedy. Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its pre- existing condition once implementation ofthis Development Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property and provide for other benefits. OWNER has invested significant time and resources and performed extensive planning and processing ofthe Project in agreeing to the terms of this Development Agreement and will be investing even more significant time in implementing the Project in reliance upon the terms of this Development Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts. For the above reasons, CITY and OWNER agree that damages would not be an adequate remedy if CITY fails to carry out its obligations under this Development Agreement. Therefore, specific performance of this Development Agreement is the only remedy which would compensate OWNER if CITY fails to carry out its obligations under this Development Agreement, and CITY hereby agrees that OWNER shall be entitled to specific performance in the event of a default by CITY hereunder. CITY and OWNER acknowledge that, if OWNER fails to carry out its obligations under this Development Agreement, CITY shall have the right to refuse to issue any permits or other approvals which OWNER would otherwise have been entitled to pursuant to this Development Agreement. If CITY issues a permit or other approval pursuant to this 20 Development Agreement in reliance upon a specified condition being satisfied by OWNER in the future, and if OWNER then fails to satisfy such condition, CITY shall be entitled to specific performance for the sole purpose of causing OWNER to satisfy such condition. CITY' s right to specific performance shall be limited to those circumstances set forth above, and CITY shall have no right to seek specific performance to cause OWNER to otherwise proceed with the Development of the Project in any manner.
25. 3 Liquidated Damages Remedy. The parties hereto agree that this Development Agreement creates an obligation and duty upon OWNER to undertake and complete development of the Project within the time and manner specified herein. In the event OWNER breaches this Development Agreement by failing to undertake and complete development of the Project within the time and manner specified herein, the parties further agree that CITY will suffer actual damages as a result thereof, the amount of which is uncertain and would be impractical or extremely difficult to fix; therefore, OWNER agrees to pay CITY, in the event of any such breach by OWNER, the sum of One Hundred Thousand Dollars ($ 100, 000.00) as liquidated and actual damages which sum shall be in addition to any other remedies available to CITY as a result of such breach pursuant to Section 26 of this Development Agreement.
SECTION 26. MODIFICATION OR TERMINATION
If pursuant to Section 26. 1 of this Development Agreement, CITY elects to modify or terminate this Development Agreement or establish a revised time schedule for compliance as herein provided, then CITY shall proceed as set forth in this Section.
26. 1 Notice to OWNER. CITY shall give notice to OWNER of the City Council' s intention to proceed to modify or terminate this Development Agreement or establish a time schedule for compliance within ten ( 10) days of making CITY' s findings.
26. 2 Public Hearing. The City Council shall set and give notice of a public hearing on modification, termination or a time schedule for compliance to be held within fortyfive ( 45) days after the City Council gives notice to OWNER.
26. 3 Decision. The City Council shall announce its findings and decisions on whether this Development Agreement is to be terminated, how this Development Agreement is to be modified or the provisions of the Development Agreement with which OWNER must comply and a time schedule therefor not more than ten ( 10) days following completion of the public hearing.
26. 4 Standard of Review. Any determination by CITY to terminate this Development Agreement because OWNER has not complied in good faith with the terms of this Development Agreement must be based upon a finding by the City Council, based on the preponderance of evidence, that OWNER is in default and has not cured that default in the timeframe permitted by Sections 25 and 26 ofthis Development Agreement, as applicable.
26. 5 Implementation. Amending or terminating this Development Agreement shall be accomplished by CITY enacting an ordinance. The ordinance shall recite the reasons 21 which, in the opinion of CITY, make the amendment or termination of this Development Agreement necessary. Not later then ten ( 10) days following the adoption of the ordinance, one copy thereof shall be forwarded to OWNER. This Development Agreement shall be terminated or this Development Agreement as modified shall become effective on the effective date ofthe ordinance terminating or modifying this Development Agreement.
26.6 Schedule for Compliance. Setting a reasonable time schedule for compliance with this Development Agreement may be accomplished by CITY enacting a resolution. The resolution shall recite the reasons which, in the opinion of CITY, make it advisable to set a schedule for compliance and why the time schedule is reasonable. Not later than ten ( 10) days following adoption of the resolution, one copy thereof shall be forwarded to OWNER. Compliance with any time schedule so established as an alternative to amendment or termination shall be subject to periodic review as provided in this Development Agreement and lack of good faith compliance by OWNER with the time schedule shall be basis for termination or modification of this Development Agreement.
SECTION 27. ASSIGNMENT
27. 1 Right to Assign. OWNER shall have the right to sell, mortgage, hypothecate, assign or transfer this Development Agreement, and any and all of its rights, duties and obligations hereunder, to any person, partnership, joint venture, firm or corporation at any time during the term of this Development Agreement, provided that any such sale, mortgage, hypothecation, assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of OWNER in the Property, or a portion thereof. In the event of any such sale, mortgage, hypothecation, assignment or transfer, ( a) OWNER shall notify CITY of such event and the name of the transferee, together with the corresponding entitlements being transferred to such transferee and ( b) the agreement between OWNER and such transferee shall provide that either OWNER or the transferee or both shall be liable for the performance of all obligations of OWNER pursuant to this Development Agreement and the Development Approvals. Such transferee and/ or OWNER shall notify CITY in writing which entity shall be liable for the performance of such obligations, and upon the express written assumption of any or all of the obligations of OWNER under this Development Agreement by such assignee, transferee or purchaser shall, without any act of or concurrence by CITY, relieve OWNER of its legal duty to perform said obligations under this Development Agreement with respect to the Property or portion thereof, so transferred, except to the extent OWNER is not in default under the terms of this Development Agreement.
27. 2 Release upon Transfer. It is understood and agreed by the parties that the Property may be subdivided following the Development Agreement Date. One or more of such subdivided parcels may be sold, mortgaged, hypothecated, assigned or transferred to persons for development by them in accordance with the provisions of this Development Agreement.
Effective upon such sale, mortgage, hypothecation, assignment or transfer, the obligations of OWNER shall become several and not joint, except as to OWNER' s obligations set forth in Section 9 and 10 of this Development Agreement. Upon the sale, transfer, or assignment of OWNER' s rights and interests under this Development Agreement as permitted pursuant to the Section 28. 1 of this Development Agreement, OWNER shall be released from its obligations 22 under this Development Agreement with respect to the Property, or portion thereof so transferred, provided that ( a) OWNER is not then in default under this Development Agreement, b) OWNER has provided to CITY the notice of such transfer specified in Section 28. 1 of this Development Agreement, (c) the transferee executes and delivers to CITY a written agreement in which ( i) the name and address of the transferee is set forth and ( ii) the transferee expressly and unconditionally assumes all the obligations of OWNER under this Development Agreement and the Development Approvals with respect to the property, or portion thereof, so transferred and d) the transferee provides CITY with security equivalent to any security provided by OWNER to secure performance of its obligations under this Development Agreement or the Development Approvals. Non-compliance by any such transferee with the terms and conditions of this Development Agreement shall not be deemed a default hereunder or grounds for termination hereof or constitute cause for CITY to initiate enforcement action against other persons then owning or holding interest in the Property or any portion thereof and not themselves in default hereunder. Upon completion of any phase of development of the Project as determined by CITY, CITY may release that completed phase from any further obligations under this Development Agreement. The provisions of this Section shall be self-executing and shall not require the execution or recordation of any further document or instrument. Any and all successors, assigns and transferees of OWNER shall have all ofthe same rights, benefits and obligations of OWNER as used in this Development Agreement and the term " OWNER" as used in this Development Agreement shall refer to any such successors, assigns and transferees unless expressly provided herein to the contrary.
SECTION 28. NO CONFLICTING ENACTMENTS
By entering into this Development Agreement and relying thereupon, OWNER is obtaining vested rights to proceed with the Project in accordance with the terms and conditions ofthis Development Agreement, and in accordance with, and to the extent of, the Development Approvals. OWNER shall have the vested right to develop the Property at the rate, timing and sequencing that OWNER deems appropriate within the exercise of OWNER' s sole subjective business judgment. By entering into this Development Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public health, safety and general welfare.
CITY therefore agrees that except as provided in Section 23 of this Development Agreement, neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance or other measure which relates to the rate, timing or sequencing ofthe Development or construction of all or any part ofthe Project and which is inconsistent or in conflict with this Development Agreement.
SECTION 29. GENERAL
29. 1 Force Majeure. The Term of this Development Agreement and the time within which OWNER shall be required to perform any act under this Development Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably by strikes, lock -outs, Acts of God, failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body, initiative or referenda, moratoria, enemy action, civil disturbances, fire, unavoidable casualties, or any other cause beyond the reasonable control of OWNER. 23 29. 2 Construction of Development Agreement. The language in all parts of this Development Agreement shall in all cases, be construed as a whole and in accordance with its fair meaning. The captions of the paragraphs and subparagraphs ofthis Development Agreement are for convenience only and shall not be considered or referred to in resolving questions of constructions. This Development Agreement shall be governed by the laws of the State of California. The parties understand and agree that this Development Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, CITY' s police powers. In this regard, the parties understand and agree that this Development Agreement shall not be deemed to constitute the surrender or abnegation of CITY' s governmental powers over the Property.
29. 3 Severability. If any provision ofthis Development Agreement shall be adjudged to be invalid, void or unenforceable, such provision shall in no way affect, impair or invalidate any other provision hereof, unless such judgment affects a material part of this Development Agreement, the parties hereby agree that they would have entered into the remaining portions ofthis Development Agreement not adjudged to be invalid, void or illegal.
In the event that all or any portion of this Development Agreement is found to be unenforceable, this Development Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event they shall take all steps necessary to comply with such public hearings and/ or notice requirements as may be necessary in order to make valid this Development Agreement or that portion which is found to be unenforceable. Notwithstanding any other provisions of this Development Agreement, in the event that any material provision ofthis Development Agreement is found to be unenforceable, void or voidable, OWNER or CITY may terminate this Development Agreement in accordance with the provisions of the Development Agreement Statute and the Procedures Resolution.
29. 4 Cumulative Remedies. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation, including suits for declaratory relief, specific performance, relief in the nature of mandamus and actions for damages. All of the remedies described above shall be cumulative and not exclusive of one another, and the exercise of any one or more of the remedies shall not constitute a waiver or election with respect to any other available remedy.
29. 5 Hold Harmless Agreement. OWNER and CITY hereby mutually agree to, and shall hold each other, each other' s elective and appointive councils, boards, commissions, officers, partners, agents, representatives and employees harmless from any liability for damage or claims for damage for personal injury, including death, and from claims for property damage which may arise from the activities ofthe other or the other' s contractors, subcontractors, agents, or employees which relate to the Project whether such activities be by OWNER or CITY, or by any of OWNER' S or CITY' s contractors, subcontractors, or by any one or more persons indirectly employed by, or acting as agent for OWNER or any of OWNER' S or CITY' s contractors or subcontractors. OWNER and CITY agree to and shall defend the other and the other' s elective and appointive councils, boards, commissioners, officers, partners, agents, representatives and employees from any suits or actions at law or in equity for damage caused or 24 alleged to have been caused by reason of the aforementioned activities which relate to the Project.
29.6 Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Development Agreement and/ or the Development Approvals, the parties hereby agree to cooperate fully with each other in defending said action and the validity of each provision of this Development Agreement, however, OWNER shall be liable for all legal expenses and costs incurred in defending any such action. OWNER shall be entitled to choose legal counsel to defend against any such legal action and shall pay any attorneys' fees awarded against CITY or OWNER, or both, resulting from any such legal action. OWNER shall be entitled to any award of attorneys' fees arising out of any such legal action.
29. 7 Public Agency Coordination. CITY and OWNER shall cooperate and use their respective best efforts in coordinating the implementation of the Development Approvals with other public agencies, if any, having jurisdiction over the Property or the Project.
29.8 Initiative Measures. Both CITY and OWNER intend that this Development Agreement is a legally binding contract which will supersede any initiative, measure, moratorium, referendum, statute, ordinance or other limitation (whether relating to the rate, timing or sequencing of the Development or construction of all or any part of the Project and whether enacted by initiative or otherwise) affecting parcel or subdivision maps ( whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use approved, issued or granted within CITY, or portions of CITY, and which Agreement shall apply to the Project to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation is inconsistent or in conflict with this Development Agreement. Should an initiative, measure, moratorium, referendum, statute, ordinance, or other limitation be enacted by the citizens of CITY which would preclude construction of all or any part ofthe Project, and to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation be determined by a court of competent jurisdiction to invalidate or prevail over all or any part of this Development Agreement, OWNER shall have no recourse against CITY pursuant to the Development Agreement, but shall retain all other rights, claims and causes of action under this Development Agreement not so invalidated and any and all other rights, claims and causes of action as law or in equity which OWNER may have independent ofthis Development Agreement with respect to the project. The foregoing shall not be deemed to limit OWNER' s right to appeal any such determination that such initiative, measure, referendum, statute, ordinance or other limitation invalidates or prevails over all or any part of this Development Agreement. CITY agrees to cooperate with OWNER in all reasonable manners in order to keep this Development Agreement in full force and effect, provided OWNER shall reimburse CITY for its out-of-pocket expenses incurred directly in connection with such cooperation and CITY shall not be obligated to institute a lawsuit or other court proceedings in this connection.
29. 9 Attorneys' Fees. In the event of any dispute between the parties involving the covenants or conditions contained in this Development Agreement, the prevailing party shall be entitled to recover reasonable expenses, attorneys' fees and costs. 25 29. 10 No Waiver. No delay or omission by either party in exercising any right or power accruing upon non-compliance or failure to perform by the other party under any ofthe provisions of this Development Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants or conditions to be performed by the other party shall not be construed as a waiver of any succeeding breach of nonperformance of the same or other covenants and conditions hereof.
29. 11 Authority to Execute. The person executing this Development Agreement on behalf of OWNER warrants and represents that he/ she has the authority to execute this Development Agreement on behalf of his/her partnership and represents that he/ she has the authority to bind OWNER to the performance of OWNER' s obligations hereunder.
29. 12 Notice.
29. 12. 1 To OWNER. Any notice required or permitted to be given by CITY to OWNER under or pursuant to this Development Agreement shall be deemed sufficiently given if in writing and delivered personally to an officer of OWNER or mailed with postage thereon fully prepaid, registered or certified mail, return receipt requested, addressed; to OWNER as follows:
The Irvine Land Company LLC and
Irvine Community Development Company LLC
550 Newport Center Drive
Newport Beach, California 92660- 0015
Attn: General Counsel
With copies to:
Latham & Watkins LLP
600 West Broadway, Suite 1800
San Diego, CA 92101- 3375
Attn: Christopher W. Garrett
or such changed address as OWNER shall designate in writing to CITY.
29. 12. 2 To CITY. Any notice required or permitted to be given to CITY under or pursuant to this Development Agreement shall be made and given in writing, if by mail addressed to:
City Council
City of Anaheim
c/ o City Clerk
P. O. Box 3222
Anaheim, California 92803
With copies to:
26 City Manager
City ofAnaheim
P. O. Box 3222
Anaheim, California 92803
City Attorney
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
or such changed address as CITY shall designate in writing to OWNER. Alternatively, notices to CITY may also be personally delivered to the City Clerk, at the Anaheim Civic Center, 200 S.
Anaheim Blvd., Anaheim, California, together with copies marked for the City Manager and the City Attorney or, if so addressed and mailed, with postage thereon fully prepaid, registered or certified mail, return receipt requested, to the City Council in care of the City Clerk at the above address with copies likewise so mailed to the City Manager and the City Attorney, respectively and also in care of the City Clerk at the same address. The provisions ofthis Section shall be deemed permissive only and shall not detract from the validity of any notice given in a manner which would be legally effective in the absence of this Section.
29. 13 Captions. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience and reference only and shall in no way define, explain, modify, construe, limit, amplify or aid in the interpretation, construction or meaning of any ofthe provisions ofthis Development Agreement.
29. 14 Consent. Any consent required by the parties in carrying out the terms of this Development Agreement shall not unreasonably be withheld.
29. 15 Further Actions and Instruments. Each of the parties shall cooperate with and reasonably provide to the other to the extent contemplated hereunder in the performance of all obligations under this Development Agreement and the satisfaction of the conditions of this Development Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms ofthis Development Agreement to carry out the intent and to fulfill the provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement.
29. 16 Subsequent Amendment to Authorizing Statute. This Development Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute in effect as of the Development Agreement Date. Accordingly, subject to Section 23. 1 of this Development Agreement, to the extent that subsequent amendments to the California Government Code would affect the provisions of this Development Agreement, such amendments shall not be applicable to this Development Agreement unless necessary for this Development Agreement to be enforceable or unless this Development Agreement is modified 27 pursuant to the provisions set forth in this Development Agreement and California Government Code Section 65868 as in effect on the Development Agreement Date.
29. 17 Governing Law. This Development Agreement, including, without limitation, its existence, validity, construction and operation, and the rights of each of the parties shall be determined in accordance with the laws ofthe State of California.
29. 18 Effect on Title. OWNER and CITY agree that this Development Agreement shall not continue as an encumbrance against any portion of the Property as to which this Development Agreement has terminated.
29. 19 Mortgagee Protection. Entering into or a breach of this Development Agreement shall not defeat, render invalid, diminish, or impair the lien of Mortgagees having a mortgage on any portion ofthe Property made in good faith and for value, unless otherwise required by law. No Mortgagee shall have an obligation or duty under this Development Agreement to perform OWNER' s obligations, or to guarantee such performance prior to any foreclosure or deed in lieu thereof.
29.20 Notice of Default to Mortgagee, Right of Mortgaizee to Cure. Ifthe City Clerk timely receives notice from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Development Agreement, CITY shall provide a copy ofthat notice to the Mortgagee within ten ( 10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, for a period up to ninety ( 90) days after the receipt of such notice from CITY to cure or remedy, or to commence to cure or remedy the default unless a further extension of time to cure is granted in writing by CITY. Ifthe default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall seek to obtain possession with diligence and continually through foreclosure, a receiver or otherwise, and shall thereafter remedy or cure the default or noncompliance within thirty ( 30) days after obtaining possession. If any such default or noncompliance cannot, with diligence, be remedied or cured within such thirty ( 30) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or non- compliance if such Mortgagee commences cure during such thirty (30) day period, and thereafter diligently pursues and completes such cure.
29. 21 Bankruptcy. Notwithstanding the foregoing provisions of Section 30.20 of this Development Agreement, if any Mortgagee is prohibited from commencing or pursues and prosecuting foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving CITY, the times specified in this Section for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition.
29.22 Disaffirmance.
29. 22. 1 New Development Agreement upon Most Senior Mortgagee' s Request. CITY agrees that in the event of termination of this Development Agreement by reason 28 of any default by CITY, or by reason of the disaffirmance hereof by a receiver, liquidator or trustee for OWNER or its property, CITY, if requested by any Mortgagee, shall enter into a new Development Agreement for the Project with the most senior Mortgagee requesting such new agreement, for the remainder of the Term, effective as of the date of such termination, upon the terms, provisions, covenants and agreements as herein contained to the extent and subject to the law then in effect, and subject to the rights, if any, of any parties then in possession of any part of the Property, provided:
a) The Mortgagee shall make written request upon CITY for the new Development Agreement for the Project within thirty (30) days after the date of termination;
b) The Mortgagee shall pay to CITY at the time ofthe execution and delivery of the new Development Agreement for the Project expenses, including reasonable attorneys' fees, to which CITY shall have been subjected by reason of OWNER' s default; and
c) The Mortgagee shall perform and observe all covenants herein contained on OWNER' s part to be performed, and shall further remedy any other conditions which OWNER under the terminated agreement was obligated to perform under its terms, to the extent the same are curable or may be performed by the Mortgagee.
29.22. 2 New Development Agreement Not Required. Nothing herein contained shall require any Mortgagee to enter into a new Development Agreement pursuant to Section 30.22. 1 of this Development Agreement, nor to cure any default of OWNER referred to above.
29.23 No Third Party Beneficiaries. This Development Agreement and all provisions hereof is made and entered into for the sole protection and benefit of CITY, OWNER and their successors and assigns. No other person shall have right of action based upon any provision in this Development Agreement.
29. 24 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Development Agreement. No partnership, joint venture or other association of any kind is formed by this Development Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such private property.
29.25 Restrictions. Property OWNER shall place in any agreements to sell or convey any interest in the Property or any portion thereof, provisions making the terms of this Development Agreement binding on any successors in interest of OWNER and express provision 29 for OWNER or CITY, acting separately or jointly, to enforce the provisions of this Development Agreement and to recover attorneys' fees and costs for such enforcement.
29.26 Recitals. The recitals in this Development Agreement constitute part of this Development Agreement and each party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Development Agreement.
29. 27 Recording. The City Clerk shall cause a copy of this Development Agreement to be executed by CITY and recorded in the Official Records of Orange County no later than ten ( 10) days after CITY approves this Development Agreement.
29.28 Title Report. CITY is required to sign this Development Agreement only after OWNER has provided CITY with a satisfactory preliminary title report evidencing and showing OWNER' s legal and equitable ownership interest in the Property, current within six ( 6) months, unencumbered except for the exceptions ( the " Permitted Exceptions") set in the preliminary title report for the Property dated July 23, 2010, attached hereto as Exhibit `B" (the Preliminary Title Report"). Any instrument of monetary encumbrance such as a deed of trust or a mortgage entered into subsequent to the date of the Preliminary Title Report and prior to the Development Agreement Date, shall contain language expressly subordinating such instruments of monetary encumbrance to the provisions ofthis Development Agreement. OWNER shall present evidence, satisfactory to CITY, of OWNER' s legal title to Property, subject only to the Permitted Exceptions and any such subordinated instruments of monetary encumbrance, at the time of recordation of this Development Agreement, or a memorandum thereof.
29.29 Entire Agreement. This Development Agreement, constitutes the entire agreement between the parties with respect to the subject matter of this Development Agreement, and this Development Agreement supersedes all previous negotiations, discussions and agreements between the parties, and no parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof.
29. 30 Successors and Assigns. The burdens of the Development Agreement shall be binding upon, and the benefits ofthe Development Agreement inure to all successors in interest and assigns of the parties to the Development Agreement.
29.31 OWNER' s Title of Property. Neither party hereto shall be bound by any provision of this Development Agreement unless and until OWNER shall record this Development Agreement or a memorandum thereof, in the office of the County Recorder ofthe County sufficient to cause this Development Agreement and the obligations contained herein to attach to and encumber OWNER' s fee title to Property.
29. 32 Exhibits. All exhibits, including attachments thereto, are incorporated in this Development Agreement in their entirety by this reference. 30 ALL SIGNATURES APPEAR ON THE FOLLOWING PAGE]
31 IN WITNESS WHEROF, CITY and Owner have executed this Development Agreement as of the date and years first above written.
CITY"
CITY OF ANAHEIM
a California unicipal corpor . n
BY:
Name: Cur. -r Fk.(wC L->`
Title: Mayor
rIiia i._. _.: L..
APPROVED AS TO FORM:
City Attorney
OWNER:
THE IRVINE COMPANY LLC,
LLC,
a Delaware limited liability company
M.
Name: n—
Dan ie oung
Title:
THE IRVINE COMPANY
a Delaware limited liability company
IN
Name: `
Can—Ug. Youn
Title:
tecutive P eside
By:
Brigi4b. Mc Mahon
Title: Title:
Assistant Secretary Assistant Secretary
STATE OF CALIFORNIA )
COUNTY OF ORANGE
On November 1, 2010, before me, Joni Grossman, Notary Public, personally appeared DANIEL H. YOUNG and BRIGID D. MCMAHON, who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signaturej --) G
STATE OF CALIFORNIA )
COUNTY OF ORANGE
JONI GROSSMAN
Commission # 1736093
Notary Public - California
Orange County
MyCamm. BoresAfx30, 2011
Seal)
On November 1, 2010, before me, Joni Grossman, Notary Public, personally appeared DANIEL H. YOUNG and BRIGID D. MCMAHON, who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph is true and correct.
WITNESS my hand and offici seal.
Signature
JONI GROSSMAN
Commission # 1736093
Notary Public - California £
Orange County
MyConm. Z0resApr30. 2011
Seal)
OWNER:
THE IRVINE LAND COMPANY LLC,
a Delaware limited liability company
By:
Name:
Daniel Jung
Title:
P ident
By:
rigid WMcMahon
Title:
Assistant Secretary
THE IRVINE COMPANY LLC,
a Delaware limited liability company
Name.
ame H. You g
Title:
Executive V' e ident
By:
rBriQ0. Mc Mahon
Title:
Assistant Secretary
STATE OF CALIFORNIA )
COUNTY OF ORANGE
On November 1, 2010, before me, Joni Grossman, Notary Public, personally appeared DANIEL H. YOUNG and BRIGID D. MCMAHON, who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph is true and correct.
WITNESS my hand andoffici seal.
Signature I G
STATE OF CALIFORNIA )
COUNTY OF ORANGE
JONI GROSSMAN
Commission # 1736093
s Notary Public - California
Orange County
MyComrn. ExpiresApr30, 2011
Seal)
On November 1, 2010, before me, Joni Grossman, Notary Public, personally appeared DANIEL H. YOUNG and BRIGID D. MCMAHON, who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and offici 1 seal.
Signature u,
JONI GROSSMAN
Commission # f 1736093
s Notary Public - California
Orange County
My Conan. EVires Apr 30, 2011
Seal)
EXHIBIT " A"
SITE MAP
DA 7
AM
Legend
Development Area Boundary
EDA Development Area
community open space
of Anaheim Boundail
Not to Scale
August 24, 2010 - GIS
I
AM
Site Plan
EXHIBIT " B"
PRELIMINARY TITLE REPORT WITH LEGAL DESCRIPTION
34 0 Fidelity National Title Company
PRELIMINARY REPORT
In response to the application for a policy of title insurance referenced herein, Fidelity National Title Company hereby reports that it is prepared to issue, or cause to be issued, as of'the date hereof, a policy or policies oftitle insurance describing the land and the estate or interest therein hereinafter setforth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an exception herein or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations or Conditions ofsaid policy forms,
The printed Exceptions and Exclusions from the coverage and Limitations on Covered Risks ofsaidpolicyor policies are set forth in Attachment One. The policy to be issued may contain an arbitration clause. When the Amount of' Insurance is less than that set forth in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties.
Limitations on Covered Risks applicable to the CLTA and ALTA Homeowner' s Policies of Title Insurance which establish a Deductible Amount and aMaximum Dollar Limit ofLiabilityfor certain coverages are also setforth in Attachment One. Copies ofthe policy forms should be read. They are available from the office which issued this report.
This report ( and any supplements or amendments hereto) is issued solely for the purpose offacilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance ofa policy oftitle insurance, a Binder or Commitment should be requested.
The policy(s) oftitle insurance to be issued hereunder will be policy(s) offidelity National Title Insurance Company, a California corporation.
Please read the exceptions shown or referred to herein and the exceptions and exclusions set forth in Attachment One ofthis report carefully. The exceptions and exclusions are meant to provideyou with notice of matters which are not covered under the terms ofthe title insurance policy and should be carefully considered.
It is important to note that this preliminary report is not a written representation as to the condition oftitle and may not list all liens, defects and encumbrances affecting title to the land Countersigned
National Title Company
O
Fidelity
kow] f
SEAL ' pro wam
ATTEST
Sscralary
CLTA Preliminary Report Form - Modified ( 11 / 17/ 06)
Visit Us on our Website: www.fni7c.com
Fidelity National Title Company
ISSUING OFFICE: 1300 Dove Street, Suite 310 . Newport Beach, CA 92660 949 622- 5000 • FAX Call for Fax
PRELIMINARY REPORT
Title Officer: Steven Ball Title No.: 10 -259923574 - SB Locate No.: CAFNT0925- 0925- 0199- 0259923574
TO: Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
ATTN: Terry Hartman
PROPERTY ADDRESS: Mountain Park, Anaheim, California
EFFECTIVE DATE: July 23, 2010, 07: 30 A. M.
The form of policy or policies of title insurance contemplated by this report is:
CLTA Standard Coverage Policy - 1990
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS:
A Fee
2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
THE IRVINE LAND COMPANY LLC, a Delaware limited liability company as to a portion of Parcel 1 and all of Parcels 2, 3 and 4;
THE IRVINE COMPANY LLC, a Delaware limited liability company as toa portion of Parcel 1
3. THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS:
SEE EXHIBIT " A" ATTACHED HERETO AND MADE A PART HEREOF MH\ MH 08/ 04/ 2010
CLTA Preliminary Report Form - Modified ( 11/ 17/ 06)
Tide No. 10 -259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
LEGAL DESCRIPTION
EXHIBIT " A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THOSE PORTIONS OF PARCELS 1, 2, 3 AND 4 OF CERTIFICATE OF COMPLIANCE N0, 2003- 00049, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED SEPTEMBER 24, 2004 AS INSTRUMENT NO. 2004000860608 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING AND DISTANCE OF " SOUTH 52059' 55" EAST 45. 38 FEET' IN THE GENERAL WESTERLY LINE OF PARCEL 300260- 2, IN THE AMENDED AND RESTATED GRANT DEED RECORDED OCTOBER 14, 1998 AS INSTRUMENT NO. 19980694409 OF SAID OFFICIAL RECORDS; THENCE ALONG SAID GENERAL WESTERLY LINE OF SAID PARCEL 300260- 2, THE FOLLOWING COURSES: SOUTH 52159' 55" EAST 45.38 FEET, NORTH 83033' 07" EAST 19. 15 FEET, SOUTH 44° 44' 18" EAST 50. 54 FEET, NORTH 06° 30' 47" WEST 680. 90 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 6130. 00 FEET, NORTHERLY 1739. 84 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16015' 43", NORTH 09044' 56" EAST 829. 14 FEET, NORTH 80° 15' 04" WEST 170. 27 FEET, NORTH 30° 36' 50" EAST 59. 19 FEET, NORTH 14° 03' 44" WEST 204. 89 FEET, NORTH 56° 13' 01" WEST 287. 21 FEET, NORTH 01' 116' 38" WEST 125. 93 FEET, NORTH 14046'31" EAST 284.42 FEET, NORTH 47051' 39" EAST 290.66 FEET, NORTH 19° 39' 50" WEST 102. 85 FEET, NORTH 1201723" EAST 348. 66 FEET, SOUTH 89034' 03" EAST 245. 17 FEET, AND NORTH 00025' 57" EAST 1499. 18 FEET TO THE NORTHWESTERLY CORNER OF SAID PARCEL 300260- 2; THENCE LEAVING SAID GENERAL WESTERLY LINE OF PARCEL 300260- 2 ALONG THE GENERAL WESTERLY LINE OF PARCEL 300261- 2 OF SAID AMENDED AND RESTATED GRANT DEED, THE FOLLOWING COURSES: NORTH 00° 25157" EAST 280.82 FEET, NORTH 00° 31' 22" WEST 719. 63 FEET, NORTH 00° 25' 57" EAST 1637. 19 FEET, AND NORTH 89034'03" WEST 112. 78 FEET TO THE NORTHWESTERLY LINE OF BLOCK 28 OF IRVINE' S SUBDIVISION AS SHOWN ON THE MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORD MAPS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE LEAVING SAID GENERAL WESTERLY LINE OF PARCEL 300261- 2 ALONG SAID NORTHWESTERLY LINE AND THE NORTHWESTERLY LINE OF BLOCK 25 OF SAID IRVINE' S SUBDIVISION, SOUTH 35° 49' 57" WEST 2136. 73 FEET TO AN ANGLE POINT IN THE SOUTHEASTERLY LINE OF PARCEL 1 OF LOT LINE ADJUSTMENT NO. 388, AS RECORDED SEPTEMBER 14, 1998 AS INSTRUMENT NO. 19980613443 OF SAID OFFICIAL RECORDS; THENCE LEAVING SAID NORTHWESTERLY LINE OF BLOCK 25 ALONG SAID SOUTHEASTERLY LINE OF PARCEL 1, THE FOLLOWING COURSES:
SOUTH 74049' 35" WEST 33. 42 FEET, SOUTH 29° 12' 35" WEST 379. 84 FEET, SOUTH 42059' 35" WEST 127. 00 FEET, AND SOUTH 72° 59' 35" WEST 11. 50 FEET TO SAID NORTHWESTERLY LINE OF BLOCK 25; THENCE LEAVING SAID SOUTHEASTERLY LINE OF PARCEL 1 ALONG SAID NORTHWESTERLY LINE OF BLOCK 25, SOUTH 35049' 57" WEST 3181. 97 FEET TO THE GENERAL SOUTHWESTERLY LINE OF THE LAND AS DESCRIBED IN " ANNEXATION NO. 280" TO THE CITY OF ANAHEIM ( MOUNTAIN PARK), IN THE DOCUMENT RECORDED MAY 26, 1992 AS INSTRUMENT NO. 92- 349124 OF SAID OFFICIAL RECORDS; THENCE LEAVING SAID NORTHWESTERLY LINE OF BLOCK 25 ALONG SAID GENERAL SOUTHWESTERLY LINE, THE FOLLOWING COURSES:
SOUTH 8101709" EAST 538. 86 FEET, SOUTH 53021' 59" EAST 243. 00 FEET, SOUTH 81° 41' 25" EAST 449. 72 FEET, SOUTH 19' 42' 12" EAST 786. 02 FEET, SOUTH 35019' 55" EAST 484, 17 FEET, SOUTH 68° 31' 26" EAST 327. 76 FEET, SOUTH 14055' 55" EAST 620. 97 FEET, AND SOUTH 04033' 38" WEST 347. 72 FEET TO THE GENERAL NORTHEASTERLY LINE OF THE LAND DESCRIBED AS PARCEL A- 2, IN THE GIFT DEED RECORDED JULY 1, 2010 AS INSTRUMENT NO. 2010000312152 OF SAID OFFICIAL RECORDS; THENCE LEAVING SAID GENERAL SOUTHWESTERLY LINE ALONG SAID GENERAL NORTHEASTERLY LINE, THE FOLLOWING COURSES:
SOUTH 24022' 48" EAST 222. 37 FEET, SOUTH 36° 3' 34" EAST 122. 60 FEET, SOUTH 61009' 27" EAST 118. 16 FEET, SOUTH 79030' 57" EAST 142. 88 FEET, AND SOUTH 81° 5050" EAST 446, 00 FEET TO THE GENERAL WESTERLY LINE OF PARCEL 300260- 3, AS DESCRIBED IN SAID AMENDED AND RESTATED GRANT DEED;
THENCE LEAVING SAID GENERAL NORTHEASTERLY LINE ALONG SAID GENERAL WESTERLY LINE OF PARCEL 300260- 3, THE FOLLOWING COURSES: SOUTH 10026' 40" EAST 26. 79 FEET, SOUTH 39044' 38" EAST 186. 60 FEET, SOUTH 37° 25' 12" WEST . 225. 09 FEET, SOUTH 15028' 26" EAST 41. 01 FEET, SOUTH 47036' 22" EAST 127. 16 FEET, SOUTH 12° 29' 14" EAST 16. 99 FEET, SOUTH 10026' 45" WEST 320. 61 FEET, SOUTH 77° 01' 37" CLTA Preliminary Report Form - Modified ( 11/ 17/ 06)
EXHIBIT " A" ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
EAST 166. 13 FEET, SOUTH 31° 5757" WEST 211. 52 FEET, AND SOUTH 55° 06' 20" EAST 108. 88 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, ANY OTHER
MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE
WITHIN OR UNDER THE PROPERTY, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFORE AND STORING IN AND REMOVING THE SAME FROM THE
PROPERTY OR ANY OTHER PROPERTY, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL
AND MINE FROM PROPERTIES OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE PROPERTY, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OF THE UPPER 500 FEET OF THE SUBSURFACE OF THE
PROPERTY AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, WATER RIGHTS OR INTERESTS THEREIN,
APPURTENANT TO, UNDERLYING OR RELATING TO THE PROPERTY, OR OWNED OR USED BY GRANTOR IN
CONNECTION WITH THE PROPERTY FOR ANY BENEFICIAL USE, NO MATTER HOW ACQUIRED BY GRANTOR,
AND INCLUDING BUT NOT LIMITED TO THE RIGHTS THAT ARE RIPARIAN, OVERLYING, APPROPRIATIVE,
PRESCRIPTIVE, PERCOLATING, LITTORAL, ADJUDICATED, STATUTORY, OR CONTRACTUAL, TOGETHER WITH
THE EXCLUSIVE RIGHT TO PUMP, DIVERT OR TAKE ANY WATER UNDERLYING THE PROPERTY, AND TO
CONSTRUCT WELLS FOR SUCH PURPOSE, AND TO UTILIZE SUCH WATER, WATER RIGHTS OR INTERESTS
THEREIN FOR ANY REASONABLE AND BENEFICIAL USE, ON ANY PROPERTY OWNED OR LEASED BY
GRANTOR, OR OTHERWISE, BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
PROPERTY IN THE EXERCISE OF SUCH RESERVED RIGHTS, AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
APN( S): 105- 013- 67, 68, 75, 92, 93; 514- 012- 5, 13
PARCEL 2:
THOSE PORTIONS OF BLOCKS 25, 26, 27, 28 AND 30 OF IRVINE' S SUBDIVISION, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP RECORDED IN BOOK 1, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE EASTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING AND DISTANCE OF " SOUTH 89034' 03" EAST 187. 64 FEET' IN THE GENERAL EASTERLY LINE OF THE LAND DESCRIBED AS PARCEL 300260- 2, IN THE AMENDED AND RESTATED GRANT DEED RECORDED OCTOBER 14, 1998 AS INSTRUMENT NO, 19980694409 OF SAID OFFICIAL RECORDS; THENCE ALONG SAID GENERAL EASTERLY LINE OF PARCEL 300260- 2, THE FOLLOWING COURSES: NORTH 89034' 03" WEST 187. 64 FEET, NORTH 00025' 57" EAST 649. 09 FEET, NORTH 03° 10' 50" EAST 250. 29 FEET, AND NORTH 00° 25' 57" EAST 602. 45 FEET TO THE NORTHEASTERLY CORNER OF SAID PARCEL 300260- 2; THENCE LEAVING SAID GENERAL EASTERLY LINE OF PARCEL 300260- 2 ALONG THE GENERAL EASTERLY LINE OF THE LAND DESCRIBED AS PARCEL 300261- 2 OF SAID AMENDED AND RESTATED GRANT DEED, THE FOLLOWING COURSES: NORTH 00025' 57" EAST 1758. 21 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 4914. 00 FEET, NORTHERLY 516. 24 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 06001' 09", NORTH 0602706" EAST 628. 75 FEETTOTHE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 2938. 00 FEET, NORTHEASTERLY 2154. 82 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 42001' 21", NON - TANGENT NORTH 41031' 33" WEST 11. 25 FEETTO THE BEGINNING OF A NON - TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 2949. 25 FEET, A RADIAL OF SAID CURVE TO SAID POINT BEARS NORTH 41031' 33" WEST, AND NORTHEASTERLY 63. 43 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 01013' 56" TO THE GENERAL SOUTHERLY LINE OF THE LAND DESCRIBED AS PARCEL 46540- 1 IN THE GRANT DEED RECORDED MARCH 8, 1971 IN BOOK 9563, PAGE 744 OF SAID OFFICIAL RECORDS, AS SHOWN ON RECORD OF SURVEY 95- 1039 FILED IN BOOK 169, PAGES 1 THROUGH 24 OF
RECORD OF SURVEYS, IN THE OFFICE OF SAID COUNTY RECORDER, THENCE LEAVING SAID GENERAL EASTERLY LINE OF PARCEL 300261- 2 ALONG SAID GENERAL SOUTHERLY LINE OF SAID PARCEL 46540- 1, THE FOLLOWING COURSES: SOUTH 69005' 35" EAST 326. 82 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 540. 00 FEET, EASTERLY AND NORTHEASTERLY 380.25 FEETALONG SAID CLTA Preliminary Report Form - Modified ( 11/ 17/ 06)
DCHIBIT " A" ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
CURVE THROUGH A CENTRAL ANGLE OF 40020' 45", NORTH 70033' 40" EAST 84. 23 FEET, SOUTH 19° 26' 20" EAST 74. 40 FEET, NORTH 70° 33' 40" EAST 80. 00 FEET, NORTH 19° 26' 20" WEST 196. 38 FEET, NORTH 35015' 43" EAST 129. 79 FEET, NORTH 01° 3134" WEST 388. 04 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 125. 00 FEET, AND NORTHEASTERLY 6. 32 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 02053' 48" TO THE SOUTHERLY LINE OF THE LAND DESCRIBED AS PARCEL 300262- 2 IN SAID AMENDED AND RESTATED GRANT DEED; THENCE LEAVING SAID GENERAL SOUTHERLY LINE OF SAID PARCEL 46540- 1 ALONG SAID SOUTHERLY LINE OF PARCEL 300262- 2, THE FOLLOWING COURSES: NORTH 59010' 45" EAST 135. 32 FEET, NORTH 83° 19' 01" EAST 24.62 FEET, NORTH 59042' 46" EAST 697. 34 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 5062. 00 FEET, AND NORTHEASTERLY 139. 45 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 01034' 42" TO THE GENERAL SOUTHERLY LINE OF THE LAND DESCRIBED AS PARCEL 1 IN THE DOCUMENT RECORDED July 24, 1951 IN BOOK 2208, PAGE 138 OF SAID OFFICIAL RECORDS AS SHOWN ON SAID RECORD OF SURVEY 95- 1039; THENCE LEAVING SAID GENERAL SOUTHERLY LINE OF PARCEL 300262- 2 ALONG SAID GENERAL SOUTHERLY LINE OF PARCEL 1, THE FOLLOWING COURSES: NORTH 71048' 28" EAST 894.99 FEET, NORTH 33° 13' 11" EAST 248. 88 FEET, NORTH 67° 20' 16" EAST 860.80 FEET, AND NORTH 52025' 37" EAST 114. 04 FEET TO THE GENERAL SOUTHWESTERLY LINE OF THE LAND DESCRIBED AS ANAHEIM 2 OF CERTIFICATE OF COMPLIANCE NO. 2009- 00125, IN THE DOCUMENT RECORDED FEBRUARY 16, 2010 AS INSTRUMENT NO. 2010000072886 OF SAID OFFICIAL RECORDS; THENCE LEAVING SAID GENERAL SOUTHERLY LINE OF PARCEL 1 ALONG SAID GENERAL SOUTHWESTERLY LINE OF ANAHEIM 2, THE FOLLOWING COURSES: SOUTH 47057' 14" EAST 232. 37 FEET TO A POINT ON A NON - TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 1789. 94 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS NORTH ' 20° 17' 10" EAST, SOUTHEASTERLY AND SOUTHERLY 2453. 25 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 78031' 42", AND SOUTH 04027' 59" EAST 447. 67 FEET TO THE SOUTHEASTERLY LINE OF BLOCK 30 OF SAID IRVINE' S SUBDIVISION; THENCE LEAVING SAID GENERAL SOUTHWESTERLY LINE ALONG SAID SOUTHEASTERLY LINE OF BLOCK 30 AND THE SOUTHEASTERLY LINE OF BLOCK 28 OF SAID IRVINE' S SUBDIVISION, SOUTH 40048' 26" WEST 2092. 68 FEET TO THE SOUTHWESTERLY LINE OF THE LAND DESCRIBED AS PARCEL 1 OF LOT LINE ADJUSTMENT NO. LL 85- 22, IN THE DOCUMENT RECORDED AUGUST 15, 1985 AS INSTRUMENT NO. 85- 304375 OF SAID OFFICIAL RECORDS; THENCE LEAVING SAID SOUTHEASTERLY LINE OF SAID BLOCK 28 ALONG SAID SOUTHWESTERLY LINE OF LAST SAID PARCEL 1, SOUTH 49° 11' 47" EAST 1246. 76 FEET TO THE GENERAL NORTHWESTERLY LINE OF THE LAND DESCRIBED AS ANAHEIM 1 OF SAID CERTIFICATE OF COMPLIANCE NO. 2009- 00125; THENCE LEAVING SAID SOUTHWESTERLY LINE OF PARCEL 1 ALONG SAID GENERAL NORTHWESTERLY LINE OF ANAHEIM 1 AND THE GENERAL NORTHERLY AND EASTERLY LINES OF SAID ANAHEIM 1, THE FOLLOWING COURSES: SOUTH 06030' 00" WEST 410. 97 FEET, SOUTH 09° 45' 00" WEST 356.76 FEET, SOUTH 20025' 00" WEST 358. 47 FEET, SOUTH 24° 05' 00" WEST 366. 00 FEET, SOUTH 34° 55' 00" WEST 341. 64 FEET, SOUTH 48040'00" WEST 198. 59 FEET, SOUTH 70° 40' 00" WEST 277. 09 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 470. 00 FEET, WESTERLY 484. 44 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 59003' 20" TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 2310. 00 FEET, NORTHWESTERLY 240. 19 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5057' 27" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 260. 00 FEET, WESTERLY 309. 43 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 68011' 18" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 380. 00 FEET, SOUTHWESTERLY 265. 92 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 40005' 44" TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1275. 00 FEET, SOUTHWESTERLY 433. 72 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 19029' 25" TO THE BEGINNING OF A REVERSE CURVE CONCAVE EASTERLY HAVING A RADIUS OF 435. 00 FEET, SOUTHERLY 549. 39 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 72021' 43" TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 490. 00 FEET, SOUTHERLY 464. 10 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 54° 16' 01" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 350.00 FEET, SOUTHWESTERLY 102. 58 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1604731", SOUTH 3304900" WEST 231. 05 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 320. 00 FEET, SOUTHWESTERLY 139. 63 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 25000' 00", SOUTH 08040' 00" WEST 272. 37 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 275. 00 FEET, SOUTHERLY 154. 79 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 32015' 00", SOUTH 23035' 00" EAST 175. 16 FEET, SOUTH 71025' 00" WEST 340.63 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 300. 00 FEET, WESTERLY 75. 92 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14030' 00", SOUTH 85055' 00" WEST 338, 68 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 200. 00 FEET, NORTHWESTERLY 182. 68 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 52' 20' 00", NORTH 41045' 00" WEST 387. 74 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 600. 00 FEET, NORTHWESTERLY 259. 18 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 24045' 00", NORTH 66030' 00" WEST 116. 53 FEET TO THE BEGINNING OF A CURVE CONCAVE CLTA Preliminary Report Form - Modified ( 11/ 17106)
EXHIBIT " A" ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
SOUTHEASTERLY HAVING A RADIUS OF 50. 00 FEET, SOUTHWESTERLY 58. 19 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 66041' 04", SOUTH 46048' 56" WEST 15. 98 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 100. 00 FEET, SOUTHERLY 179. 14 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 102038' 16" TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 250.00 FEET, SOUTHEASTERLY, SOUTHERLY, SOUTHWESTERLY, WESTERLY AND NORTHWESTERLY 972. 44 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 222052' 01" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE EASTERLY HAVING A RADIUS OF 750. 00 FEET, NORTHERLY 560. 28 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 42° 48' 07" TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 50. 00 FEET, NORTHERLY AND NORTHWESTERLY 78. 92 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90025' 48", NORTH 60035' 00" WEST 119. 23 FEET TO A POINT ON A NON -TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 1410.00 FEET, A RADIAL LINE OF SAID CUM TO SAID POINT BEARS SOUTH 50° 26' 59" WEST, NORTHWESTERLY 1708. 56 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 69025' 40" TO A POINT ON A NON -TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 2056. 00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 58' 28' 20" WEST, NORTHWESTERLY 777. 92 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 21040' 44", NON - TANGENT NORTH 01010' 00" EAST 186. 39 FEET, NORTH 05° 55' 00" EAST 90. 46 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 20. 00 FEET, NORTHERLY AND NORTHWESTERLY
42. 47 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 121040' 00", SOUTH 64° 15' 00" WEST 121. 69 FEET, SOUTH 75045' 00" WEST 136. 23 FEET, SOUTH 74° 45' 00" WEST 176. 79 FEET, SOUTH 88° 15' 00" WEST 111. 76 FEET, AND NORTH 87055' 00" WEST 130. 45 FEET TO THE EASTERLY LINE OF THE LAND DESCRIBED AS PARCEL 300261- 7, IN SAID AMENDED AND RESTATED GRANT DEED; THENCE LEAVING SAID GENERAL NORTHERLY LINE OF ANAHEIM 1 ALONG SAID EASTERLY AND THE SOUTHERLY LINE OF SAID PARCEL 300261- 7, THE FOLLOWING COURSES: SOUTH 04019' 37" WEST 268.96 FEET, SOUTH 20°59' 33" WEST 417.83, AND SOUTH 89057' 17" WEST 40. 63 FEET TO THE NORTHEASTERLY CORNER OF THE LAND DESCRIBED AS PARCEL 300260- 6, IN SAID AMENDED AND RESTATED GRANT DEED; THENCE LEAVING SAID SOUTHERLY LINE OF PARCEL 300261- 7 ALONG THE GENERAL EASTERLY LINE OF SAID PARCEL 300260- 6, THE FOLLOWING COURSES: SOUTH 06059' 57" EAST 350, 00 FEET, SOUTH 10002' 36" WEST 443. 22 FEET, SOUTH 49054' 38" EAST 98. 72 FEET, NORTH 4300830" EAST 88. 46 FEET, SOUTH 79° 00'24" EAST 120. 03 FEET, SOUTH 00004' 26" EAST 283. 01 FEET, SOUTH 48° 26' 47' WEST 67. 27 FEET, NORTH 73003' 48" WEST 211. 20 FEET, SOUTH 01025' 28" WEST 128. 74 FEET, SOUTH 30° 28' 34" EAST 273. 75 FEE; AND SOUTH 01IM53" WEST 66.40 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, ANY OTHER
MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE
WITHIN OR UNDER THE PROPERTY, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFORE AND STORING IN AND REMOVING THE SAME FROM THE
PROPERTY OR ANY OTHER PROPERTY, INCLUDING THE RIGHTTO WHIPSTOCK OR DIRECTIONALLY DRILL
AND MINE FROM PROPERTIES OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE PROPERTY, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OF THE UPPER 500 FEET OF THE SUBSURFACE OF THE
PROPERTY AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, WATER RIGHTS OR INTERESTS THEREIN,
APPURTENANT TO, UNDERLYING OR RELATING TO THE PROPERTY, OR OWNED OR USED BY GRANTOR IN
CONNECTION WITH THE PROPERTY FOR ANY BENEFICIAL USE, NO MATTER HOW ACQUIRED BY GRANTOR,
AND INCLUDING BUT NOT LIMITED TO THE RIGHTS THAT ARE RIPARIAN, OVERLYING, APPROPRIATIVE,
PRESCRIPTIVE, PERCOLATING, LITTORAL, ADJUDICATED, STATUTORY, ORCONTRACTUAL, TOGETHER WITH
THE EXCLUSIVE RIGHT TO PUMP, DIVERT OR TAKE ANY WATER UNDERLYING THE PROPERTY, AND TO
CONSTRUCT WELLS FOR SUCH PURPOSE, AND TO UTILIZE SUCH WATER, WATER RIGHTS OR INTERESTS
THEREIN FOR ANY REASONABLE AND BENEFICIAL USE, ON ANY PROPERTY OWNED OR LEASED BY
GRANTOR, OR OTHERWISE, BUT WITHOUT, HOWEVER, ANY RIGHTTO ENTER UPON THE SURFACE OF THE
PROPERTY IN THE EXERCISE OF SUCH RESERVED RIGHTS, AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
APN( S): 085- 071- 10, 11, 47; 105- 013- 21, 28, 29, 77; 514- 012- 6, 8, 12, 15 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06)
D(HIBrr " A" ( continued)
PARCEL 3:
Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
PARCEL 300260- 4, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED IN THE AMENDED AND RESTATED GRANT DEED RECORDED OCTOBER 14, 1998 AS INSTRUMENT NO. 19980694409 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, ANY OTHER
MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE
WITHIN OR UNDER THE PROPERTY, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFORE AND STORING IN AND REMOVING THE SAME FROM THE
PROPERTY OR ANY OTHER PROPERTY, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL
AND MINE FROM PROPERTIES OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE PROPERTY, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OF THE UPPER 500 FEET OF THE SUBSURFACE OF THE
PROPERTY AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, WATER RIGHTS OR INTERESTS THEREIN,
APPURTENANT TO, UNDERLYING OR RELATING TO THE PROPERTY, OR OWNED OR USED BY GRANTOR IN
CONNECTION WITH THE PROPERTY FOR ANY BENEFICIAL USE, NO MATTER HOW ACQUIRED BY GRANTOR,
AND INCLUDING BUT NOT LIMITED TO THE RIGHTS THAT ARE RIPARIAN, OVERLYING, APPROPRIATIVE,
PRESCRIPTIVE, PERCOLATING, LITTORAL, ADJUDICATED, STATUTORY, OR CONTRACTUAL, TOGETHER WITH
THE EXCLUSIVE RIGHT TO PUMP, DIVERT OR TAKE ANY WATER UNDERLYING THE PROPERTY, AND TO
CONSTRUCT WELLS FOR SUCH PURPOSE, AND TO UTILIZE SUCH WATER, WATER RIGHTS OR INTERESTS
THEREIN FOR ANY REASONABLE AND BENEFICIAL USE, ON ANY PROPERTY OWNED OR LEASED BY
GRANTOR, OR OTHERWISE, BUT WITHOUT, HOWEVER, ANY RIGHTTO ENTER UPON THE SURFACE OF THE
PROPERTY IN THE EXERCISE OF SUCH RESERVED RIGHTS, AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
APN( S): 105- 013- 60, 63
PARCEL 4:
THAT PORTION OF PARCEL 300261- 1, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED IN THE AMENDED AND RESTATED GRANT DEED RECORDED October 14, 1998 AS INSTRUMENT NO. 19980694409 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY LYING SOUTHEASTERLY OF THE LAND DESCRIBED AS PARCEL 300261- 4, IN SAID AMENDED AND RESTATED GRANT DEED.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, ANY OTHER
MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE
WITHIN OR UNDER THE PROPERTY, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFORE AND STORING IN AND REMOVING THE SAME FROM THE
PROPERTY OR ANY OTHER PROPERTY, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL
AND MINE FROM PROPERTIES OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE PROPERTY, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OF THE UPPER 500 FEET OF THE SUBSURFACE OF THE
PROPERTY AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, WATER RIGHTS OR INTERESTS THEREIN,
APPURTENANT TO, UNDERLYING OR RELATING TO THE PROPERTY, OR OWNED OR USED BY GRANTOR IN
CONNECTION WITH THE PROPERTY FOR ANY BENEFICIAL USE, NO MATTER HOW ACQUIRED BY GRANTOR,
AND INCLUDING BUT NOT LIMITED TO THE RIGHTS THAT ARE RIPARIAN, OVERLYING, APPROPRIATIVE, CLTA Preliminary Report Forth - Modified ( 11/ 17/ 66)
EXHIBIT " A" ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
PRESCRIPTIVE, PERCOLATING, LITTORAL, ADJUDICATED, STATUTORY, OR CONTRACTUAL, TOGETHER WITH
THE EXCLUSIVE RIGHT TO PUMP, DIVERT OR TAKE ANY WATER UNDERLYING THE PROPERTY, AND TO
CONSTRUCT WELLS FOR SUCH PURPOSE, AND TO UTILIZE SUCH WATER, WATER RIGHTS OR INTERESTS
THEREIN FOR ANY REASONABLE AND BENEFICIAL USE, ON ANY PROPERTY OWNED OR LEASED BY
GRANTOR, OR OTHERWISE, BUT WITHOUT, HOWEVER, ANY RIGHTTO ENTER UPON THE SURFACE OF THE
PROPERTY IN THE EXERCISE OF SUCH RESERVED RIGHTS, AS RESERVED BY THE IRVINE COMPANY, A DELAWARE CORPORATION IN GRANT DEED RECORDED NOVEMBER 30, 2005, AS INSTRUMENT NO. 2005000953645, OF OFFICIAL RECORDS.
APN( S): 514- 011- 1, 4
NOTE: THE ABOVE LEGAL DESCRIPTION IS FOR THE SOLE PURPOSE OF THIS REPORT AND MAY NOT BE
CONSIDERED FOR USE IN ANY POLICY OF TITLE INSURANCE TO BE ISSUED BY THIS COMPANY, AS IS
SUBJECT TO CHANGE AT ANY
TIME.
CLTA preliminary Report Forth • Modified ( 11/ 17/ 06)
Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
ATTHE DATE HEREOF, ITEMSTO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION
TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS:
1. Property taxes, which are a lien not yet due and payable, including any assessments collected with taxes to be levied for the fiscal year 2010- 2011.
2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3. 5 Commencing with Section 75) of the Revenue and Taxation code of the State of California.
3. Water rights, claims or title to water, whether or not disclosed by the public records.
4. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: County of Orange
Purpose: Roads
Recorded: December 10, 1913, Book 243, Page 359, of Deeds Affects: A portion of said land as more particularly described in said document NOTE 1: by an instrument recorded November 29, 1937, in Book 914, Page 330, of Official Records, the California Highway Commission Relinquished to the County of Orange that portion of said easement not included in the 100 -foot State Highway Right of Way described in the deeds from the Irvine Company to the State of California, recorded June 7, 134, in Book 678, Page 328, of Official Records and June 23, 1936, in Book 832, page 210, of Official Records.
NOTE 2: By order of the Board of Supervisors of Orange County, California, that portion of said easement not included within the 100 feet in width right of way for Santa Ana Canyon Road as laid out and maintained by the California State Highway Department was vacated and abandoned, a certified copy of said order was recorded March 4, 1938, in Book 926, Page 471, of Official Records, Affects: Santa Ana Canyon Road.
5. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: The Pack Telephone and Telegraph Company
Purpose: Pole lines, conduits
Recorded: April 30, 1917, Book 301, Page 177, of Deeds
Affects: A portion of said land as more particularly described in said document The exact location and extent of said easement is not disclosed of record.
CLTA Preliminary Report Form • Modified ( 11/ 17106)
ITEMS: ( continued) Title No, 10 -259923574 - SB
Locate No. CAFUT0925- 0925- 0199- 0259923574
6. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
PA
S.
Granted to: The Southern California Telephone Company
Purpose: Pole lines, conduits
Recorded: July 10, 1934, Book 683, Page 400, of Official Records Affects: A portion of said land as more particularly described in said document Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: The State of California
Purpose: Freeway
Recorded: April 5, 1950, Book 1994, Page 534, of Official Records Affects: A portion of said land as more particularly described in said document NOTE 1: A waiver in favor of the State of California of any claims for damages to said land by reason of the location, construction, landscaping or maintenance of a highway contiguous thereto, as contained in said deed from the Irvine Company to the State of California.
NOTE 2: The fact that the ownership of said land does not include any rights of ingress or egress to or from portions of the freeway, said rights having been relinquished in said deed from the Irvine Company to the State of California.
Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: The State of California
Purpose: Slopes, drainage
Recorded: July 24, 1951, Book 2208, Page 138, of Official Records Affects: A portion of said land as more particularly described in said document NOTE 1: The effect of the provisions that said land shall be used for freeway purposes, as contained in said deed from the Irvine Company to State of California.
NOTE 2: A waiver in favor of the State of California of any claims for damages to said land by reason of the location, construction, landscaping or maintenance of a highway contiguous thereto, as contained in said deed from the Irvine Company, as the State of California.
NOTE 3: The fact that the ownership of said land does not include any rights of ingress or egress to or from portions of the freeway, said rights having been relinquished said deed from the Irvine Company to the State of California, and by the deed from the Irvine Company to the State of California, recorded October 8, 1956, in book 3670, Page 75, of Official Records. 9 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) ITEMS: ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
9. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: Four Corners Pipe Line Company
Purpose: Pipelines, ingress, egress
Recorded: January 15, 1958, Book 4165, Page 134, of Official Records Affects: A portion of said land as more particularly described in said document NOTE 1: the terms, provisions and conditions contained in a document entitled " Assignment of Easements, License and Contracts", executed by and between Arco Pipe Line Company, a Delaware corporation and Questar Line 90 Company, a Utah corporation, recorded March 10, 1999, Instrument No. 1999- 0174576, of Official Records.
NOTE 2: A portion of said easement was quitclaimed by a document recorded July 29, 1998, as Instrument No. 1998- 0490124, of Official Records.
10. Matters contained in that certain agreement attached to a Resolution of the Board of Supervisors of Orange County, California, dated February 18, 1969, executed by and between County of Orange, a political subdivision and the Irvine Company, recorded February 25, 1969, in book 8884, Page 300, of Official Records.
Reference is made to said document for full particulars.
NOTE: an amendment of said agreement, attached, to a Resolution of the board of Supervisors of Orange County, California, dated May 13, 1969, was recorded May 13, 1969, in Book 8955, Page 899, of Official Records.
11. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: The State of California
Purpose: Slopes, drainage
Recorded: March 8, 1971, Book 9563, Page 744, of Official Records Affects: A portion of said land as more particularly described in said document NOTE is A waiver in favor of the State of California of any claims for damages to said land by reason of the location, construction, landscaping or maintenance of a highway contiguous thereto, as contained in said deed from the Irvine company to the State of California.
NOTE 2: The fact that the ownership of said land does not include any rights of ingress or egress to or from portions of the freeway, said rights having been relinquished by said deed from the Irvine Co. to the State of California.
10 CLTA Preliminary Report Form - Modified ( 11( 17/ 06) ITEMS: ( continued) Tide No. 10 -259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
12. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: the State of California
Purpose: Slope, drainage
Recorded: March 7, 1971, Book 9563, Page 758, of Official Records Affects: A portion of said land as more particularly described in said document
13. The relinquishment of a portion of highway right of way, to the County of orange, by the State of California, of Frontage Roads, reconstructed county roads, and pedestrian facilities, by document recorded June 28, 1973, in Book 10774, Page 552, of Official Records.
NOTE: The reservation of all rights of ingress to and egress from the highway, except such points as now are or may be established by resolution of the State Commission, as contained in said document.
14. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: Southern California Edison Company, a corporation Purpose: Lines, conduits
Recorded: December 30, 1975, Book 11608, Page 1194, of Official Records Affects: A portion of Block 28.
The exact location and extent of said easement is not disclosed of record.
15. the relinquishment of a portion of Reconstructed County Road Right of Way to the County of Orange by the State of California, by document recorded April 7, 1981, in Book 14011, Page 745, of Official Records.
NOTE: The reservation of all rights of ingress to and egress from the highway, except at such points as now are or may be established by Resolution of the State Commission, as contained in said document.
16. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: Four Corners Pipe Line company
Purpose: Pipelines
Recorded: July 22, 1983, Instrument No. 83- 316288, of Official Records Affects: A portion of Blocks 27 and 28.
11 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) ITEMS: ( continued)
17. 18.
19. 20.
21. Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
Matters contained in that certain document entitled " Form of Assignment of Easements, License and Contracts", executed by and between ARCO Pipe Line company, a Delaware corporation and Questar Line 90 Company, a Utah corporation recorded March 10, 1999, Instrument No. 1999- 0174576, of Official Records.
Reference is hereby made to said document for full particulars.
NOTE: A portion of said easement was quitclaimed by a document recorded July 29, 1998, as Instrument No. 1998- 0490124, of Official Records.
The effect of maps filed in Book 1, Page 37; in Book 2, Page 5; in Book 101, Page 48; in Book 104,
Survey, purporting to show portions of the herein described adjacent lands.
The effect of a Lot Line Adjustment LL 85- 22, recorded august 15, 1985, as Instrument No. 85- 304375, of Official Records.
An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein as disclosed by the document
Lessor: The Irvine Company, a Michigan corporation
Lessee: New Owl Rock Products, Inc., a California general partnership Recorded: June 1, 1990, Instrument No. 90- 294096, Official Records This item will be eliminated upon the receipt of an affidavit from the Irvine Company indicating that the lease is no longer in effect, or upon receipt of a lease termination signed by both parties.
Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: Southern California Edison Company, a corporation Purpose: Electric supply systems, communication systems Recorded: June 11, 1991, Instrument No. 91- 295405, of Official Records Affects: A portion of said land as more particularly described in said document The exact location and extent of said easement is not disclosed of record.
The effect of a map purporting to show the herein described and other land recorded in Book 135,
12 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) ITEMS: ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
22. Matters contained in that certain document entitled " Development Agreement No. 91- 01", executed by and between The City of Anaheim and The Irvine Company recorded June 2, 1992, Instrument No. 92- 368311, of Official Records.
Which document, among other things, contains or provides for:
The Mountain Park Community.
Reference is hereby made to said document for full particulars.
23. An instrument entitled " Declaration of Covenants" recorded June 25, 1992 as Instrument/ File No. 92- 428521 of Official Records.
Reference is made to said document for full particulars.
24. Matters contained in that certain document entitled " Memorandum of Sublicense Agreement", executed by and between New Owl Rock Products, a California general partnership and MCC Development Corporation, a Delaware corporation recorded April 23, 1993, Instrument No. 93- 0273586, of Official Records.
Reference is hereby made to said document for full particulars.
25. Matters contained in that certain document entitled " grading and Construction Easement Agreement", executed by and between The Irvine company, a Michigan corporation and Baldwin Building contractors Limited, a California limited partnership recorded May 26, 1995, Instrument No. 95- 0226213, of Official Records.
Reference is hereby made to said document for full particulars.
The rights of the grantee appears to have expired by their own terms. Upon receipt of the affidavit from the Irvine Company, affirming that the rights thereunder have not been extended or renewed, this item will be eliminated.
26. Matters contained in that certain document entitled " Easement Agreement", executed by and between The Irvine company, a Michigan corporation and Southern California Gas Company recorded November 21, 1997, Instrument No. 1997- 0601638, of Official Records.
Reference is hereby made to said document for full particulars.
27. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: Southern California Edison Company, a corporation Purpose: Public utilities
Recorded: December 22, 1997, Instrument No. 1997- 0655293, of Official Records Affects: A portion of said land as more particularly described in said document 13 CLTA Preliminary Report rorm - Modified ( 11/ 17/ 06) ITEMS: ( continued) Tide No. 10 -259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
28. Matters contained in that certain document entitled " Grading, Construction and Maintenance Easement Agreement" dated January 13, 1998, executed by and between The Irvine Company and Kaufman and Broad Coastal, Inc., a California corporation recorded February 27, 1998, Instrument No. 1998- 0112673, of Official Records.
Reference is hereby made to said document for full particulars.
Matters contained in that certain document entitled " Amendment to Grading, Construction and Maintenance Easement Agreement", executed by and between The Irvine Company and Kaufman and Broad Coastal, Inc., a California corporation recorded October 15, 1998, Instrument No. 1998- 0697937, of Official Records.
Reference is hereby made to said document for full particulars.
The rights of the grantee appears to have expired by their own terms. Upon receipt of the affidavit from the Irvine Company, affirming that the rights thereunder have not been extended or renewed, this item will be eliminated.
29. Any and all abutters rights in and to the Foothill/ Eastern Transportation Corridor, including access rights have been released and relinquished to the Foothill/ Eastern Transportation Corridor Agency by a Grant Deed recorded June 9, 1995, as Instrument No. 95- 0245698.
Affects: The Foothill/ Eastern Transportation Corridor.
30. Easement( s) for the purpose( s) shown below and rights incidental thereto as granted in a document.
Granted to: The Foothill/ Eastern Transportation Corridor Agency Purpose: Slope
Recorded: October 14, 1998, Instrument No. 1998- 0694409, of Official Records Affects: A portion of said land as more particularly described in said document NOTE: The interest of the Foothill/ Eastern Transportation Corridor Agency has been transferred to the State of California by a Grant Deed recorded October 19, 1998, as Instrument No. 1998- 0702665, of Official Records.
31. Matters contained in that certain document entitled " Grant Deed of Conservation Easement ( Irvine Ranch Land Reserve -Fremont)" dated May 23, 2002, executed by and between The Irvine Company, a Delaware corporation and The Nature Conservancy, a District of Columbia non- profit corporation recorded June 14, 2002, Instrument No. 20020500069, of Official Records.
Reference is hereby made to said document for full particulars. 14 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) ITEMS: ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
32. Matters contained in that certain document entitled " Master Amendment to Grant Deeds" dated October 24, 2003, executed by and between Foothill/ Eastern Transportation Corridor Agency, a California joint powers agency and the State of California recorded December 8, 2003, Instrument No. 2003001460127, of Official Records.
Reference is hereby made to said document for full particulars.
33. An instrument entitled " City of Anaheim Lot Line Adjustment No. 560" recorded September 27, 2004 as Instrument
File No. 2004000861520 of Official Records.
Reference is made to said document for full particulars.
34. The effect of a map purporting to show the herein described and other land recorded in book 208, Pages 36 through 39, inclusive of Records of Survey.
35. Matters contained in that certain document entitled " Memorandum of Agreement School Impact Mitigation Agreement", executed by and between Orange Unified School District of Orange County, California and Irvine Community Development Company, LLC, a Delaware limited liability company recorded December 1, 2005, Instrument No. 2005000962740, of Official Records.
Reference is hereby made to said document for full particulars.
36. Matters contained in that certain document entitled " Declaration of covenants ( 404 Permit for Mountain Park)" dated March 2, 2006, executed by The Irvine Land Company LLC, a Delaware limited liability company recorded March 3, 2006, Instrument No. 2006000145081, of Official Records.
Reference is hereby made to said document for full particulars.
37. An instrument entitled "Certificate of Compliance County of Orange, State of California C C 2009- 01" recorded February 16, 2010 as Instrument/ File No. 2010000072885 of Official Records.
Reference is made to said document for full particulars. 15 CLTA Preliminary Report Form - Modified ( 11/ 17106) ITEMS: ( continued) Title No. 10 -259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
38. Before issuing its policy of title insurance, this Company will require for review, the following documents from the Limited Liability Company named below.
Limited Liability Company: THE IRVINE LAND COMPANY LLC, a Delaware limited liability company
a) A copy of its operating agreement and any and all amendments, supplements and/ or modifications thereto, certified by the appropriate manager or member.
b) Confirmation that its Articles of Organization ( LLC - 1), and Certificate of Amendment ( LLC - 2), any restated Articles of Organization ( LLC - 10) and/ or Certificate of Correction ( LLC -11) have been filed with the Secretary of State.
c) If the Limited Liability Company is member - managed a full and complete current list of members certified by the appropriate manager or member. d) If the Limited Liability Company was formed in a foreign jurisdiction, evidence satisfactory to the Company, that it was validly formed, is in good standing and authorized to do business in the state of origin. e) If the Limited Liability Company was formed in a foreign jurisdiction, evidence satisfactory to the Company, that it has complied with California doing business" laws, if applicable.
After review of the requested documents, the Company reserves the right to add additional items or make additional requirements prior to the issuance of any policy of title insurance. 16 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) ITEMS: ( continued) Title No. 10 -259923574 - SB
Locate No. CAFNTD925- 0925- 0199- 0259923574
39. Before issuing its policy of title insurance, this Company will require for review, the following documents from the Limited Liability Company named below.
Limited Liability Company: THE IRVINE COMPANY LLC, a Delaware limited liability company a) A copy of its operating agreement and any and all amendments, supplements and/ or modifications thereto, certified by the appropriate manager or member.
b) Confirmation that its Articles of Organization ( LLC - 1), and Certificate of Amendment ( LLC -2), any restated Articles of Organization ( LLC - 10) and/ or Certificate of Correction ( LLC - 11) have been filed with the Secretary of State.
c) If the Limited Liability Company is member - managed a full and complete current list of members certified by the appropriate manager or member. d) If the Limited Liability Company was formed in a foreign jurisdiction, evidence satisfactory to the Company, that it was validly formed, is in good standing and authorized to do business in the state of origin. e) If the Limited Liability Company was formed in a foreign jurisdiction, evidence satisfactory to the Company, that it has complied with California doing business" laws, if applicable.
After review of the requested documents, the Company reserves the right to add additional items or make additional requirements prior to the issuance of any policy of title insurance.
END OF ITEMS
Note 1. Property taxes, including any personal property taxes and any assessments collected with taxes, for the fiscal year 2009- 2010, Assessor' s Parcel Number 105- 013- 67.
Code Area Number:
1st Installment:
2nd Installment:
Land:
Improvements:
Exemption:
Personal Property:
Affects:
01225
0. 00 NO TAXES DUE
0. 00 NO TAXES DUE
0. 00
0. 00
0. 00
0. 00
Parcel 1 ( Portion).
17 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) NOTES: ( continued) Title No. 10 -259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
Property taxes, including any personal property taxes and any assessments collected with taxes, for the fiscal year 2009- 2010, Assessor' s Parcel Number 105- 013- 68.
Code Area Number:
1st Installment:
2nd Installment:
Land:
Improvements:
Exemption:
Personal Property:
Affects:
01225
0. 00 NO TAXES DUE
0. 00 NO TAXES DUE
0. 00
0. 00
0. 00
0. 00
Parcel 1 ( Portion).
Property taxes for the fiscal year shown
amounts are:
amounts are:
Tax Identscation No.: 105- 013- 75
Fiscal Year: 2009 - 2010
1st Installment: 44. 32
2nd Installment: 44. 32
Exemption: 0. 00
Land: 0. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01225
Affects: Parcel 1 ( Portion),
below are PAID. For proration purposes the
Property taxes for the fiscal year shown below are PAID. amounts are:
Tax Identification No.: 105- 013- 92
Fiscal Year: 2009- 2010
1st Installment: 830. 11
2nd Installment: 830. 11
Exemption: 0. 00
La nd : 100, 965. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 012004
Affects: Parcel 1 ( Portion).
For proration purposes the
18 CLTA Preliminary Report Form - Modified ( 11117/ 06) NOTES: ( continued) Title No. 10 - 259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
Property taxes for the fiscal year shown below are PAID. amounts are:
Tax Identification No.: 105- 013- 93
Fiscal Year: 2009- 2010
1st Installment: 4, 377. 42
2nd Installment: 4, 377. 42
Exemption: 0. 00
Land: 647, 368. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 1 ( Portion).
Property taxes for the fiscal year shown below are PAID. amounts are:
Tax Identification No.: 514- 012- 05
Fiscal Year: 2009- 2010
1st Installment: 743. 34
2nd Installment: 743. 34
Exemption: 0. 00
Land: 132, 448. 00
Improvements: 0.00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 1 ( Portion).
Property taxes for the fiscal year shown below are PAID. amounts are:
Tax Identification No.: 514- 012- 13
Fiscal Year: 2009- 2010
1st Installment: 379. 78
2nd Installment: 379. 78
Exemption: 0. 00
Land: 66, 681. 00
Improvements: 0. 00
Personal Property: 0.00
Code Area: 01225
Affects: Parcel 1 ( Portion).
For proration purposes the
For proration purposes the
For proration purposes the
19 CLIA Preliminary Report Forth - Modified ( 11/ 17/ 06) NOTES: ( continued)
Property taxes for the fiscal year shown
amounts are:
Tax Identification No.:
Tax Identification No.: 085- 071- 10
Fiscal Year: 2009- 2010
1st Installment: 9, 313. 53
2nd Installment: 9, 313. 53
Exemption: 0. 00
Land: 1, 703, 865. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
Title No. 10 -259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
below are PAID. For proration purposes the
Property taxes for the fiscal year shown below are PAID. For proration amounts are:
Tax Identification No.: 085- 071- 11
Fiscal Year: 2009- 2010
1st Installment: 4, 556. 36
2nd Installment: 4, 556. 36
Exemption: 0. 00
Land: 684, 258. 00
Improvements: 0.00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
Property taxes for the fiscal year shown
amounts are:
Tax Identification No.: 085- 071- 47
Fiscal Year: 2009- 2010
1st Installment: 5, 575. 53
2nd Installment: 5, 575. 53
Exemption: 0. 00
Land: 848, 715. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
20 purposes the
below are PAID. For proration purposes the
CLTA Preliminary Report Form • Modified ( 11117/ 06)
NOTES: ( continued) Title No. 10 -259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
Property taxes for the fiscal year shown below are PAID. amounts are:
Tax Identification No.: 105- 013- 21
Fiscal Year: 2009- 2010
1st Installment: 982. 97
2nd Installment: 982. 97
Exemption: 0. 00
Land: 144, 433. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
Property taxes for the fiscal year shown
amounts are:
Tax Identification No.: 105- 013- 28
Fiscal Year: 2009- 2010
1st Installment: 1, 701. 20
2nd Installment: 1, 701. 20
Exemption: 0. 00
Land: 245, 622. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
Property taxes for the fiscal year shown
amounts are:
Tax Identification No.: 105- 013- 29
Fiscal Year: 2009- 2010
1st Installment: 2, 357. 24
2nd Installment: 2, 357. 24
Exemption: 0. 00
Land: 344, 934. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
For proration purposes the
below are PAID. For proration purposes the
below are PAID. For proration purposes the
21 CLTA Preliminary Report Form - Modified ( 11/ 17( 06) NOTES: ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
Property taxes for the fiscal year shown below are PAID. For proration purposes the amounts are:
Tax Identification No.: 105- 013- 77
Fiscal Year: 2009- 2010
1st Installment: $ 37. 78
2nd Installment: $ 37. 78
Exemption: $ 0. 00
Land: $ 0. 00
Improvements: $ 0. 00
Personal Property: $ 0. 00
Code Area: 01225
Affects: Parcel 2 ( Portion).
Property taxes for the fiscal year shown below are PAID. For proration purposes the amounts are:
Tax Identification No.: 514- 012- 06
Fiscal Year: 2009- 2010
1st Installment: 13, 302. 91
2nd Installment: 13, 302. 91
Exemption: 0.00
Land: 2, 396,463. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
Property taxes for the fiscal year shown below are PAID. For proration purposes the amounts are:
Tax Identification No.: 514- 012- 08
Fiscal Year: 2009- 2010
1st Installment: 10,620.43
2nd Installment: 10,620. 43
Exemption: 0. 00
Land: 1, 916, 640. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion).
22 CLTA Preliminary Report Form • Modified ( 11/ 17/ 06) NOTES: ( continued)
Property taxes for the fiscal year shown
amounts are:
Tax Identification No.:
Tax Identification No.: 514- 012- 12
Fiscal Year: 2009- 2010
1st Installment: 1, 571. 98
2nd Installment: 1, 571. 98
Exemption: 0. 00
Land: 280, 851. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01225
Affects: Parcel 2 ( Portion).
Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
below are PAID. For proration purposes the
Property taxes for the fiscal year shown below are PAID. For proration amounts are:
Tax Identification No.: 514- 012- 15
Fiscal Year: 2009- 2010
1st Installment: 553. 33
2nd Installment: 553. 33
Exemption: 0. 00
Land: 98, 058. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01204
Affects: Parcel 2 ( Portion),
purposes the
Property taxes, including any personal property taxes and any assessments collected with taxes, for the fiscal year 2009- 2010, Assessor' s Parcel Number 105- 013- 60.
Code Area Number:
1st Installment:
2nd Installment:
Land:
Improvements:
Exemption:
Personal Property:
Affects:
01225
0. 00 NO TAXES DUE
0. 00 NO TAXES DUE
0. 00
0. 00
0. 00
0. 00
Parcel 3 ( Portion).
23 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) NOTES: ( continued) Tide No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
Property taxes for the fiscal year shown below are PAID amounts are:
Tax Identification No.: 105- 013- 63
Fiscal Year: 2009- 2010
1st Installment: 434. 34
2nd Installment: 434. 34
Exemption: 0. 00
Land: 50, 885. 00
Improvements: 0. 00
Personal Property: 0. 00
Code Area: 01225
Affects: Parcel 3 ( Portion).
For proration purposes the
Property taxes for the fiscal year shown below are PAID. For proration purposes the amounts are:
Tax Identification No.: 514- 011- 01
Fiscal Year: 2009- 2010
1st Installment: $ 47. 00
2nd Installment: $ 47. 00
Exemption: $ 0. 00
Land: $ 6, 604.00
Improvements: $ 0. 00
Personal Property: $ 0. 00
Code Area: 01204
Affects: Parcel 4 ( Portion).
Property taxes for the fiscal year shown
amounts are:
Tax Identification No.: 514- 011- 04
Fiscal Year: 2009- 2010
1st Installment: 446. 95
2nd Installment: 446. 95
Exemption: 0. 00
Land: 82, 961. 00
Improvements:
Personal Property: 0.00
Code Area: 01204
Affects: Parcel 4 ( Portion).
24 below are PAID. For proration purposes the
CLTA Preliminary Report Form - Modified ( 11/ 17/ 06)
NOTES: ( continued) Tide No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
Note 2. Wiring instructions for Fidelity National title Company, Riverside, CA, are as follows:
Receiving Bank: Union Bank of California
800) 849- 6466
Irvine, CA 92614
ABA Routing No.: 122000496
Credit Account Name: Fidelity National title Company - Builder Services Payoff/Admin 11870 Pierce St., Suite 100, Riverside, CA 92505
Credit Account No.: 9100586700
Reference No.: 10- 259923574
These wiring instructions are for this specific transaction involving the Title Department of the Newport Beach office of Fidelity National Title Company. These instructions therefore should not be used in other transactions without first verifying the information with our accounting department. It is imperative that the wire text be exactly as indicated. Any extraneous information may cause unnecessary delays in confirming the receipt of funds.
Note 3. Any documents being executed in conjunction with this transaction must be signed in the presence of an authorized Company employee, an authorized employee of an agent, an authorized employee of the insured lender, or by using Bancsery or other approved third - party service. If the above requirements cannot be met, please call the company at the number provided in this report.
25 CLTA Preliminary Report Form - Modified ( 11) 17/ 06) NOTES: ( continued) Title No. 10 -259923574 -SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
OWNER' S DECLARATION
The undersigned hereby declares as follows:
1. ( Fill in the applicable paragraph and strike the other) a. Declarant (" Owner") is the owner or lessee, as the case may be, of certain premises located at . further described as follows: See Preliminary
Report/ Commitment No. for full legal description ( the " Land"). b. Declarant is the of (" Owner"), which is the owner or lessee, as the case may be, of certain premises located at . further described as follows: See Preliminary Report/ Commitment No. for full legal description ( the Land").
2. ( Fill in the applicable paragraph and strike the other.) a. During the period of six months immediately preceding the date of this declaration no work has been done, no surveys or architectural or engineering plans have been prepared, and no materials have been furnished in connection with the erection, equipment, repair, protection or removal of any building or other structure on the Land or in connection with the improvement of the Land in any manner whatsoever.
b. During the period of six months immediately preceding the date of this declaration certain work has been done and materials furnished in connection with upon the Land in the approximate total sum of $ , but no work whatever remains to be done and no materials remain to be furnished to complete the construction in full compliance with the plans and specifications, nor are there any unpaid bills incurred for labor and materials used in making such improvements or repairs upon the Land, or for the services of architects, surveyors or engineers, except as follows: . Owner, by the undersigned Declarant, agrees to and does hereby indemnify and hold harmless Fidelity National Title Insurance Company against any and all claims arising therefrom.
3. Owner has not previously conveyed the Land; is not a debtor in bankruptcy ( and if a partnership, the general partner thereof is not a debtor in bankruptcy); and has not received notice of any pending court action affecting the title to the Land.
4. Except as shown in the above -referenced Preliminary Report/Commitment, there are no unpaid or unsatisfied mortgages, deeds of trust, Uniform Commercial Code financing statements, claims of lien, special assessments, or taxes that constitute a lien against the Land or that affect the Land but have not been recorded in the public records.
5. The Land is currently in use as occupy/ occupies the Land; and the following are all of the leases or other occupancy rights affecting the Land:
6. There are no other persons or entities that assert an ownership interest in the Land, nor are there unrecorded easements, claims of easement, or boundary disputes that affect the Land.
7. There are no outstanding options to purchase or rights of first refusal affecting the Land. 26 CLTA Preliminary Report Form - Modified ( 11/ 17/ 06) NOTES: ( continued) Title No. 10 - 259923574 - SB
Locate No. CAFNT0925- 0925- 0199- 0259923574
This declaration is made with the intention that Fidelity National Title Insurance Company ( the Company") and its policy issuing agents will rely upon it in issuing their title insurance policies and endorsements. Owner, by the undersigned Declarant, agrees to indemnify the Company against loss or damage ( including attorneys fees, expenses, and costs) incurred by the Company as a result of any untrue statement made herein.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on at
Signature:
END OF NOTES
27 CITA Preliminary Report Form - Modified ( 11/ 17106) 914
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ATTACHMENT ONE
AMERICAN LAND TITLE ASSOCIATION
RESIDENTIAL TITLE INSURANCE POLICY ( 6- 1- 87) EXCLUSIONS In addition to the Exceptions in Schedule B, you are not insured against loss, costs, attorneys' fees, and expenses resulting from:
1. Governmental police power, and the existence or violation of any law or government regulation. This includes building and zoning ordinances and also laws and regulations concerning:
land use
improvements on the land
land division
environmental protection
This exclusion does not apply to violations or the enforcement of these matters which appear in the public records at policy date.
This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks.
The right to take the land by condemning it, unless:
a notice of exercising the right appears in the public records on the Policy Date
the taking happened prior to the Policy Date and is binding on you if you bought the land without knowledge of the
taking
In addition to the Exclusions, you are not insured against loss, costs, attorneys' fees, and the expenses resulting from:
1. Any rights, interests, or claims of parties in possession of the land not shown by the public records.
2. Anv easements or liens not shown by the public records. This does not limit the lien coverage in Item 8 of Covered
Title Risks.
Title Risks:
that are created, allowed, or agreed to by you
that are known to you, but not to us, on the Policy Date - unless they appeared in the public records
that result in no loss to you
that first affect your title after the Policy Date - this does not limit the labor and material lien coverage in Item 8 of Covered Title Risks
Failure to pay value for your title.
lack of a right
to any land outside the area specifically described and referred to in Item 3 of Schedule A
or
in streets, alleys, or waterways that touch your land
This exclusion does not limit the access coverage in Item 5 of Covered Title Risks.
3. Any facts about the land which a correct survey would disclose and which are not shown by the public records. This does not limit the forced removal coverage in Item 12 of Covered Title Risks.
4. Any water rights or claims or title to water in or under the land, whether or not shown by the public records.
Attachment One ( 4/ 11 / 10)
ATTACHMENT ONE
CONTINUED)
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY - 1990
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of:
1. ( a) Any law, ordinance or governmental regulation ( including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating i) the occupancy, use, or enjoyment of the land; ( ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or ( iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
b) Any governmental police power not excluded by ( a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
1 Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims, or other matters:
a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant;
b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
c) resulting in no loss or damage to the insured claimant; d) attaching or created subsequent to Date of Policy; or e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy.
Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state in which the land is situated.
Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out ofthe transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law.
Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy or the transaction creating the interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws.
SCHEDULE B, PART I
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage ( and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of:
PART
Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records.
Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof.
Easements, liens or encumbrances, or claims thereof, not shown by the public records.
Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. a) Unpatented mining claims; ( b) reservations or exceptions in patents or in Acts authorizing the issuance thereof, ( c) water rights, claims or title to water, whether or not the matters excepted under ( a), ( b), or (c) are shown by the public records.
Any, lien or right to a lien for services, labor or material not shown by the public records.
Attachment One ( 4/ 11/ 10)
ATTACHMENT ONE
CONTINUED)
FORMERLY AMERICAN LAND TITLE ASSOCIATION LOAN POLICY ( 10- 17- 92) WITH A. L.T.A. ENDORSEMENT - FORM I COVERAGE
EXCLUSIONS FROM COVERAGE
The Hollowing matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of:
1. ( a) Any law, ordinance or governmental regulation ( including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to i) the occupancy, use, or enjoyment of the land; ( ii) the character, dimensions or location of any improvement now or hereafter erected on the land; ( iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or ( iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
b) Any governmental police power not excluded by ( a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims, or other matters:
a) created, suffered, assumed or agreed to by the insured claimant;
b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
c) resulting in no loss or damage to the insured claimant; d) attaching or created subsequent to Date ofPolicy ( except to the extent that this policy insures the priority of the lien of the insured mortgage over any statutory lien for services, labor or material or to the extent insurance is afforded herein as to assessments for street improvements under construction or completed at Date of Policy); or
e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage.
4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner ofthe indebtedness, to comply with applicable doing business laws of the state in which the land is situated.
5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law.
6. Any statutory lien for services, labor or materials ( or the claim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising from an
improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not
financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance.
7. Any claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason ofthe operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on:
i) the transaction creating the interest ofthe insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or ii) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination; or
iii) the transaction creating the interest of the insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure:
a) to timely record the instrument of transfer; or
b) of such recordation to impart notice to a purchaser for value or a judgement or lien creditor.
The above policy form may be issued to afford either Standard Coverage or Extended Coverage.
In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the FC Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage ( and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of:
Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records.
Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof.
Easements, liens or encumbrances, or claims thereof, not shown by the public records.
Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. a) Unpatented mining claims; ( b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; ( c) water rights, claims or title to water, whether or not the matters excepted under ( a), ( b) or ( c) are shown by the public records.
Any lien or right to a lien for services, labor or material not shown by the public records.
Attachment One (4/ 11! 10)
ATTACHMENT ONE
CONTINUED)
2006 AMERICAN LAND TITLE ASSOCIATION LOAN POLICY ( 06- 17- 06)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of:
1. ( a) Any law, ordinance, permit, or governmental regulation including those relating to building and zoning) restricting, regulating, prohibiting, or relating to
i) the occupancy, use, or enjoyment of the Land;
ii) the character, dimensions, or location of any
improvement erected on the Land;
iii) the subdivision of land; or
iv) environmental protection;
or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1( a) does not modify or limit the coverage provided under Covered Risk S.
b) Any governmental police power. This Exclusion I ( b) does not modify or limit the coverage provided under Covered Risk 6.
2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3. Defects, liens, encumbrances, adverse claims, or other matters a) created, suffered, assumed, or agreed to by the Insured Claimant;
b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
c) resulting in no loss or damage to the Insured Claimant; d) attaching or created subsequent to Date of Policy ( however, this does not modify or limit the coverage provided under Covered Risk 11, 13, or 14); or
e) resulting in loss or damage that would not have been sustained ifthe Insured Claimant had paid value for the Insured Mortgage,
4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing -business laws of the state where the Land is situated.
5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth -in -lending law.
6. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is a) a fraudulent conveyance or fraudulent transfer, or
b) a preferential transfer for any reason not stated in Covered Risk 13( b) of this policy.
7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the Insured Mortgage in the Public Records. This Exclusion does not modify or limit the coverage provided under Covered
Risk I I ( b),
The above policy firm may be issued to afford either Standard Coverage or Extended Coverage.
In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage ( and the Company will not pay costs, attorneys' fees or expenses) that arise by reason of:
a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records;
b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records.
Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.
Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records.
a) Unpatented mining claims; ( b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; ( c) water rights, claims or title to water, whether or not the matters excepted under ( a), ( b), or ( c) are shown by the Public Records.
Any lien or right to a lien for services, labor or material not shown by the public records.
Attachment One ( 4/ 11110)
ATTACHMENT ONE
CONTINUED)
FORMERLY AMERICAN LAND TITLE ASSOCIATION OWNER' S POLICY ( 10- 17- 92)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of:
1. ( a) Any law, ordinance or governmental regulation ( including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to i) the occupancy, use, or enjoyment of the land; ( ii) the character, dimensions or location of any improvement now or hereafter erected on the land; ( iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or ( iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
b) Any governmental police power not excluded by ( a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Dale of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
Defects, liens, encumbrances, adverse claims, or other matters:
a) created, suffered, assumed or agreed to by the insured claimant;
b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
c) resulting in no loss or damage to the insured claimant; d) attaching or created subsequent to Date ofPolicy, or e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy.
Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on:
i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or
ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure:
a) to timely record the instrument of transfer; or
b) of such recordation to impart notice to a purchaser for value or a judgement or lien creditor.
The above policy fort may be issued to afford either Standard Coverage or Extended Coverage.
In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the fallowing Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage ( and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of:
Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records.
Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof.
Easements, liens or encumbrances, or claims thereof, not shown by the public records.
Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. a) Unpatented mining claims; ( b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; ( c) water rights, claims or title to water, whether or not the matters excepted under ( a), ( b) or ( c) are shown by the public records.
Any lien or right to a lien for services, labor or material not shown by the public records.
Attachment One ( 4/ 11/ 10)
ATTACHMENT ONE
CONTINUED)
2006 AMERICAN LAND TITLE ASSOCIATION OWNER' S POLICY ( 06- 17- 06)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of:
1. ( a) Any law, ordinance, permit, or governmental regulation including those relating to building and zoning) restricting, regulating, prohibiting, or relating to
i) the occupancy, use, or enjoyment of the Land;
ii) the character, dimensions, or location of any
improvement erected on the Land;
iii) the subdivision of land; or
iv) environmental protection;
or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1( a) does not modify or limit the coverage provided under Covered Risk 5.
b) Any governmental police power. This Exclusion I (b) does not modify or limit the coverage provided under Covered Risk 6.
2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3. Defects, liens, encumbrances, adverse claims, or other matters a) created, suffered, assumed, or agreed to by the Insured Claimant;
b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
c) resulting in no loss or damage to the Insured Claimant, d) attaching or created subsequent to Date of Policy ( however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or
e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value li>r the Title.
Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown in Schedule A, is a) a fraudulent conveyance or fraudulent transfer; or
b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy.
Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date ofPolicy and the date ofrecording ofthe deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A.
The above policy form may be issued to afford either Standard Coverage or Extended Coverage.
In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage ( and the Company will not pay costs, attorneys' fees or expenses) that arise by reason of:
a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; ( b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records.
Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.
Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records.
a) Unpatented mining claims; ( b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; ( c) water rights, claims or title to water, whether or not the matters excepted under ( a), ( b), or (c) are shown by the Public Records.
Any lien or right to a lien for services, labor or material not shown by the public records.
Attachment One ( 4/ 11110)
ATTACHMENT ONE
CONTINUED)
CLTA HOMEOWNER' S POLICY OF TITLE INSURANCE ( 10- 22- 03) ALTA HOMEOWNER' S POLICY OF TITLE INSURANCE ( 10- 22- 03)
EXCLUSIONS
In addition to the Exceptions in Schedule $, You are not insured against loss, costs, attorneys' fees, and expenses resulting from:
1. Governmental police power, and the existence or violation of any law or government regulation. This includes ordinances, laws and regulations concerning:
a. building
b. zoning
c. Land use
d. improvements on Land
e. Land division
f. environmental protection
This Exclusion does not apply to violations or the enforcement of these matters if notice of the violation or enforcement appears in the Public Records at the Policy Date.
This Exclusion does not limit the coverage described in Covered Risk 14, 15, 16, 17 or 24.
2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes.
This Exclusion does not apply to violations of building codes if notice of the violation appears in the Public Records at the Policy Date.
3 The right to take the Land by condemning it, unless:
a. notice of exercising the right appears in the Public Records at the Policy Date; or
b. the taking happened before the Policy Date and is binding on You if You bought the Land without Knowing of the
taking.
4. Risks:
a. that are created, allowed, or agreed to by You, whether or not they appear in the Public Records;
b. that are Known to You at the Policy Date, but not to Us, unless they appear in the Public Records at the Policy Date; c. that result in no loss to You; or
d. that first occur after the Policv Date - this does not limit the coverage described in Covered Risk 7, 8. d, 22, 23, 24
or 25.
5. Failure to pay value for Your Title.
6. Lack of a right:
a. to any Land outside the area specifically described and referred to in paragraph 3 of Schedule A; and
b. in streets, alleys, or waterways that touch the Land.
This Exclusion does not limit the coverage described in Covered Risk 11 or 18.
LIMITATIONS ON COVERED RISKS
Your insurance for the following Covered Risks is limited on the Owner' s Coverage Statement as follows:
For Covered Risk 14, 15, 16 and 18, Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A.
The deductible amounts and maximum dollar limits shown on Schedule A are as follows:
Your Deductible Amount Our Maximum
Dollar Limit of
Liabili
Covered Risk 14: 1. 00% of Policy Amount 10, 000. 00
or
2, 500. 00
whichever is less)
Covered Risk 15: 1. 00% ofPolicy Amount $ 25, 000. 00
or
5. 000. 00
whichever is less)
Covered Risk 16: 1. 00% of Policy Amount $ 25, 000.00
or
5, 000. 00
whichever is less)
Covered Risk 18: 00% 1. of Policy Amount $ 5. 000.00
or
2500.00
whichever is less)
Attachment One ( 4/ 1110)
ATTACHMENT ONE
CONTINUED)
CLTA HOMEOWNER' S POLICY OF TITLE INSURANCE ( 01- 01- 08) ALTA HOMEOWNER' S POLICY OF TITLE INSURANCE ( 01- 01- 08)
EXCLUSIONS
In addition to the Exceptions in Schedule B, You are not insured against loss, costs, attorneys' fees, and expenses resulting from:
1. Governmental police power, and the existence or violation of those portions of any law or government regulationconecming:
a. building;
b. zoning;
c. land use;
d, improvements on the Land;
e. land division; and
f. environmental protection.
This Exclusion does not limit the coverage described in Covered Risk 8. a., 14, 15, 16, 18, 19, 20, 23 or 27.
2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes.
This Exclusion does not limit the coverage described in Covered Risk 14 or 15.
3. The right to take the Land by condemning it. This Exclusion does not limit the coverage described in Covered Risk 17.
4. Risks:
a. that are created, allowed, or agreed to by You, whether or not they are recorded in the Public Records,
b. that are Known to You at the Policy Date, but not to Us, unless they are recorded in the Public Records at the Policy Date;
c. that result in no loss to You; or
d. that first occur after the Policy Date - this does not limit the coverage described in Covered Risk 7, 8. e., 25, 26, 27 or 28.
5. Failure to pay value for Your Title.
6. Lack of a right:
a. to any land outside the area specifically described and referred to in paragraph 3 of Schedule A; and
b. in streets, alleys, or waterways that touch the Land.
This Exclusion does not limit the coverage described in Covered Risk 11 or 21.
LIMITATIONS ON COVERED RISKS
Your insurance for the following Covered Risks is limited on the Owner' s Coverage Statement as follows:
For Covered Risk 16, 18, 19 and 21, Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A.
The deductible amounts and maximum dollar limits shown on Schedule A are as follows:
Your Deductible Amount Our Maximum
Dollar Limit of
Liabili
Covered Risk 16: 1. 00% of Policy Amount 10, 000. 00
Shown in Schedule A
or
2, 500. 00
whichever is less)
Covered Risk 18: 1. 00% of Policy Amount $ 25, 000. 00
Shown in Schedule A
or
5, 000. 00
whichever is less)
Covered Risk 19: 1. 00% of Policy Amount $ 25, 000. 00
Shown in Schedule A
or
5, 000.00
whichever is less)
Covered Risk 21: 1. 00% of Policy Amount $ 5, 000. 00
Shown in Schedule A
or
2, 500. 00
whichever is less)
Attachment One ( 4/ 11110)
ATTACHMENT ONE
CONTINUED)
ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY ( 10/ 13/ 01)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of:
1. ( a) Any law, ordinance or governmental regulation ( including but not limited to zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to ( i) the occupancy, use, or enjoyment of the Land; ( ii) the character, dimensions or location of any improvements now or hereafter erected on the Land; ( iii) a separation in ownership or a change in the dimensions or areas of the Land or any parcel of which the Land is or was a part; or ( iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the Land has been recorded in the Public Records at Date of Policy. This exclusion does not limit the coverage provided under Covered Risks 12, 13, 14, and 16 of this policy. b) Any governmental police power not excluded by ( a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the Land has been recorded in the Public Records at Date of Policy. This
exclusion does not limit the coverage provided under Covered Risks 12, 13, 14, and 16 of this policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the Public Records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without Knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
a) created, suffered, assumed or agreed to by the Insured Claimant;
b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
c) resulting in no loss damage to the Insured Claimant; d) attaching or created subsequent to Date of Policy ( this paragraph does not limit the coverage provided under Covered Risks 8, 16, 18, 19, 20, 21, 22, 23, 24, 25 and 26); or e) resulting in loss or damage which would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of the Insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the Land is situated.
5. Invalidity or unenforceability of the lien of the Insured Mortgage, or claim thereof, which arises out of the transaction evidenced by the Insured Mortgage and is based upon usury, except as provided in Covered Risk 27, or any consumer credit protection or truth in lending law.
6. Real property taxes or assessments of any governmental authority which become a lien on the Land subsequent to Date of Policy. This exclusion does not limit the coverage provided under Covered Risks 7, 8( e) and 26.
7. Any claim of invalidity, unenforceability or lack ol' priority of the lien of the Insured Mortgage as to advances or
modifications made after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy. This exclusion does not limit the coverage provided in Covered Risk 8.
8. Lack of priority of the lien of the Insured Mortgage as to each and every advance made after Date of Policy, and all interest charged thereon, over liens, encumbrances and other matters affecting the title, the existence of which are Known to the Insured at:
a) The time of the advance; or
b) The time a modification is made to the terms of the Insured Mortgage which changes the rate of interest charged, if the rate of interest is greater as a result of the modification than it would have been before the modification. This exclusion does not limit the coverage provided in Covered Risk 8.
9. The failure of the residential structure, or any portion thereof to have been constructed before, on or after Date of Policy in accordance with applicable building codes. "Phis exclusion does not apply to violations of building codes if notice of the violation appears in the Public Records at Date of Policy.
Attachment One ( 4/ 1 I / 10)
ATTACHMENT ONE
CONTINUED)
ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (01/ 01/ 08)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of:
1. ( a) Any law, ordinance, permit, or governmental regulation including those relating to building and zoning) restricting, regulating, prohibiting, or relating to
i) the occupancy, use, or enjoyment of the Land;
ii) the character, dimensions, or location of any
improvement erected on the Land;
iii) the subdivision of land; or
iv) environmental protection,
or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1( a) does not modify or limit the coverage provided under Covered Risk 5, 6, 13( c), 13( d), 14 or 16.
b) Any governmental police power. This Exclusion I (b) does not modify or limit the coverage provided under Covered Risk 5, 6, 13( c), 13( d), 14 or 16.
2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3. Defects, liens, encumbrances, adverse claims, or other matters a) created, suffered, assumed, or agreed to by the Insured Claimant;
b) not Known to the Company, not recorded in the Public Records at Date ofPolicy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
c) resulting in no loss or damage to the Insured Claimant; d) attaching or created subsequent to Date ofPolicy (however, this does not modify or limit the coverage provided under Covered Risk 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 or 28); or
e) resulting in loss or damage that would not have been sustained ifthe Insured Claimant had paid value for the Insured Mortgage.
4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing -business laws of the state where the Land is situated.
5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury, or any consumer credit protection or truth -in -lending law. This Exclusion does not modify or limit the coverage provided in Covered Risk 26.
6. Any claim of invalidity, unenforceability or lack of priority of the lien of the Insured Mortgage as to Advances or
modifications made after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 11.
7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of Policy. This Exclusion does not modify or limit the coverage provided in Covered Risk I I ( b) or 25.
8. The failure of the residential structure, or any portion of it, to have been constructed before, on or after Date of Policy in accordance with applicable building codes. This Exclusion does not modify or limit the coverage provided in Covered Risk 5 or 6.
Anactunent One ( 4/ 11! 10)
Notice
You may be entitled to receive a $ 20. 00 discount on escrow services if you purchased, sold or refinanced residential property in California between May 19, 1995 and November 1, 2002. If you had more than one qualifying transaction, you may be entitled to multiple discounts.
If your previous transaction involved the same property that is the subject of your current transaction, you do not have to do anything; the Company will provide the discount, provided you are paying for escrow or title services in this transaction.
If your previous transaction involved property different from the property that is subject of your current transaction, you must - prior to the close of the current transaction - inform the Company of the earlier transaction, provide the address of the property involved in the previous transaction, and the date or approximate date that the escrow closed to be eligible for the discount.
Unless you inform the Company of the prior transaction on property that is not the subject of this transaction, the Company has no obligation to conduct an investigation to determine if you qualify for a discount. If you provide the Company information concerning a prior transaction, the Company is required to determine if you qualify for a discount which is subject to other terms and conditions.
Effective through November 1, 2014
privacy)( 05- 08)
Fidelity National Financial, Inc.
Privacy Statement
Effective Date: 5/ 1/ 2008
Fidelity National Financial, Inc. and its subsidiaries (" FNF") respect the privacy and security of your non- public personal information (" Personal Information") and protecting your Personal Information is one of our top priorities. This Privacy Statement explains FNF' s privacy practices, including how we use the Personal Information we receive from you and from other specified sources, and to whom it may be disclosed. FNF follows the privacy practices described in this Privacy Statement and, depending on the business performed, FNF companies may share information as described herein.
Personal Information Collected
We may collect Personal Information about you from the following sources:
Information we receive from you on applications or other forms, such as your name, address, social security number, tax identification number, asset information, and income information; Information we receive from you through our Internet websites, such as your name, address, email address, Internet Protocol address, the website links you used to get to our websites, and your activity while using or reviewing ourwebsites; Information about your transactions with or services performed by us, our affiliates, or others, such as information concerning your policy, premiums, payment history, information about your home or other real property, information from lenders and other third parties involved in such transaction, account balances, and credit card information; and Information we receive from consumer or other reporting agencies and publicly recorded documents.
Disclosure of Personal Information
We may provide your Personal Information ( excluding information we receive from consumer or other credit reporting agencies) to various individuals and companies, as permitted by law, without obtaining your prior authorization. Such laws do not allow consumers to restrict these disclosures. Disclosures may include, without limitation, the following:
To insurance agents, brokers, representatives, support organizations, or others to provide you with services you have requested, and to enable us to detect or prevent criminal activity, fraud, material misrepresentation, or nondisclosure in connection with an insurance transaction;
To third -party contractors or service providers for the purpose of determining your eligibility for an insurance benefit or payment and/ or providing you with services you have requested; To an insurance regulatory authority, or a law enforcement or other governmental authority, in a civil action, in connection with a subpoena or a governmental investigation;
To companies that perform marketing services on our behalf or to other financial institutions with which we have joint marketing agreements and/ or
To lenders, lien holders, judgment creditors, or other parties claiming an encumbrance or an interest in title whose claim or interest must be determined, settled, paid or released prior to a title or escrow closing.
We may also disclose your Personal Information to others when we believe, in good faith, that such disclosure is reasonably necessary to comply with the law or to protect the safety of our customers, employees, or property and/ or to comply with a judicial proceeding, court order or legal process.
privacy)
Effective Date: 5/ 1/ 2008
Disclosure to Affiliated Companies - We are permitted by law to share your name, address and facts about your transaction with other FNF companies, such as insurance companies, agents, and other real estate service providers to provide you with services you have requested, for marketing or product development research, or to market products or services to you. We do not, however, disclose information we collect from consumer or credit reporting agencies with our affiliates or others without your consent, in conformity with applicable law, unless such disclosure is otherwise permitted by law.
Disclosure to Nonaffiliated Third Parties - We do not disclose Personal Information about our customers or former customers to nonaffiliated third parties, except as outlined herein or as otherwise permitted by law.
Confidentiality and Security of Personal Information
We restrict access to Personal Information about you to those employees who need to know that information to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard Personal Information.
Access To Personal Information/
Requests for Correction, Amendment, or Deletion of Personal Information As required by applicable law, we will afford you the right to access your Personal Information, under certain circumstances to find out to whom your Personal Information has been disclosed, and request correction or deletion of your Personal Information. However, FNF' s currentop licy is to maintain customers' Personal Information for no less than your state' s reouired record retention requirements for the purpose of handling future coverage claims.
For your protection, all requests made under this section must be in writing and must include your notarized signature to establish your idents. Where permitted by law, we may charge a reasonable fee to cover the costs incurred in responding to such requests. Please send requests to:
Chief Privacy Officer
Fidelity National Financial, Inc.
601 Riverside Avenue
Jacksonville, FL 32204
Changes to this Privacy Statement
This Privacy Statement may be amended from time to time consistent with applicable privacy laws. When we amend this Privacy Statement, we will post a notice of such changes on our website. The effective date of this Privacy Statement, as stated above, indicates the last time this Privacy Statement was revised or materially changed.
Notice of Available Discounts
Pursuant to Section 2355. 3 in Title 10 of the California Code of Regulations Fidelity National Financial, Inc. and its subsidiaries FNF") must deliver a notice of each discount available under our current rate filing along with the delivery of escrow instructions, a preliminary report or commitment. Please be aware that the provision of this notice does not constitute a waiver of the consumer' s right to be charged the filed rate. As such, your transaction may not qualify for the below discounts.
You are encouraged to discuss the applicability of one or more of the below discounts with a Company representative. These discounts are generally described below; consult the rate manual for a full description of the terms, conditions and requirements for such discount. These discounts only apply to transactions involving services rendered by the FNF Family of Companies. This notice only applies to transactions involving property improved with a one -to -four family residential dwelling.
FNF Underwritten Title Companies FNF Underwriter
FNTC — Fidelity National Title Company FNTIC — Fidelity National Title Insurance Company FNTCCA — Fidelity National Title Company of California
Available Discounts
CREDIT FOR PRELIMINARY REPORTS AND/ OR COMMITMENTS ON
SUBSEQUENT POLICIES ( FNTIC)
Where no major change in the title has occurred since the issuance of the original report or commitment, the order may be reopened within 12 or 36 months and all or a portion of the charge previously paid for the report or commitment may be credited on a subsequent policy charge.
FEE REDUCTION SETTLEMENT PROGRAM ( FNTC, FNTCCA and FNTIC) Eligible customers shall receive a $ 20.00 reduction in their title and/ or escrow fees charged by the Company for each eligible transaction in accordance with the terms of the Final Judgments entered in The People ofthe State ofCalifornia etal v. fidelity National Title Insurance Company et al., Sacramento Superior Court Case No. 99AS02793, and related cases.
DISASTER LOANS ( FNTIC)
The charge for a Lender' s Policy ( Standard or Extended coverage) covering the financing or refinancing by an owner of record, within 24 months of the date of a declaration of a disaster area by the government of the United States or the State of California on any land located in said area, which was partially or totally destroyed in the disaster, will be 50% of the appropriate title insurance rate.
CHURCHES OR CHARITABLE NON- PROFIT ORGANIZATIONS ( FNTIC) On properties used as a church or for charitable purposes within the scope of the normal activities of such entities, provided said charge is normally the church' s obligation the charge for an owner' s policy shall be 50% or 70% of the appropriate title insurance rate, depending on the type of coverage selected. The charge for a lender' s policy shall be 32% or 50% of the appropriate title insurance rate, depending on the type of coverage selected.
CA Discount Notice ( notdisc-fnt) Effective Date: 7/ 1/ 2010