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15-0901_PACIFIC POINT DEVELOPMENT PARTNERS, LLC_Amd & Restate Spec. 4(d) Int. Habitat Loss Imp. AgrRecording requested by and when recorded return to: City of San Juan Capistrano Attn: City Clerk 32400' Paseo Adelanto San Juan Capistrano, CA 92675 J. if City of San Juan Capistrano Recorded in Official Records, Orange County Hugh Nguyen, Clerk-Recorder RECE! J 10 1015005^03923:13 pm 10/21/15 (TY cl?olJ.oo''o.oo o'oo ee.oo o.oo o.oo o.oo NO FEE 7 9 1 1 0 3 0 $* ....- Mi. U,.. i o 1»i' 1 Amended and Restated Special 4(d) Interim Habitat Loss Implementation Agreement Subject: Revised Special 4(d) Approval for the Pacific Point Project THIS AGREEMENT is made this Jjf day of^fK 2015, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and Pacific Point Development Partners LLC, a Delaware limited liability company, hereinafter referred to as "Pacific Point DP." WHEREAS, Pacific Point DP currently is the owner and developer of Pacifica San Juan, an approximately 256-acre master planned community ("Project") located in the City; and WHEREAS, the Project was the subject of a Special 4(d) Rule Interim Habitat Loss Mitigation Plan for Tentative Tract Map 14196 Pacific Point Project (a.k.a. Pacifica San Juan), County of Orange, issued by the U.S. Fish and Wildlife Service ("USFWS") and the California Department of Fish and Game (now known as the California Department of Fish and Wildlife) ("CDFW") (collectively, "Resource Agencies") on January 31, 1997 ("Special 4(d) Approval"); and WHEREAS, the Special 4(d) Approval required 2.6 acres of on-site coastal sage scrub ("CSS") preservation, 17.6 acres of on-site CSS restoration, and 22.6 acres of off-site exotic vegetation control, for a total of 42.8 acres of land to be preserved, restored, or conserved; and WHEREAS, the prior developer of the Project, SJD Partners, Ltd. ("SJD"), began development of the Project in 1999, and concurrent with that development, SJD commenced implementation of the Project's conditions of approval, including the on-site CSS restoration requirements contained in the Special 4(d) Approval; and WHEREAS, approximately 11.1 acres of the required 17.6 acres of on-site CSS restoration area were enhanced in 2006 and 2007 through preservation, planting of native species, and removal of non-native species and trash; and WHEREAS, SJD and the City entered into a Special 4(d) Interim Habitat Loss Implementation Agreement in 2006 ("2006 Agreement") as a method of ensuring completion of the Special 4(d) Approval, including the establishment of a trust account for long term maintenance as required under the Special 4(d) Approval; and WHEREAS, during its ownership of the Project site, SJD sold a portion of the 17.6-acre area identified for on-site restoration, leaving 9.6 acres within the 17.6-acre area available for restoration; and WHEREAS, LV Pacific Point LLC took control of the Project site in 2012, and conferred with the Resource Agencies regarding an amendment to the Special 4(d) Approval associated with development of the Project; and WHEREAS, the Resource Agencies issued a Revised Special 4(d) Rule Interim Habitat Loss Permit for Tentative Tract 14196 (Pacific Point Project aka Pacifica San Juan), Orange County, California, on February 11, 2015 ("Revised Special 4(d) Approval"); and WHEREAS, the Revised Special 4(d) Approval required LV Pacific Point LLC to implement modified conservation measures, including the perpetual management, maintenance, and monitoring of a total of 42.8 acres of mitigation area, which would adequately address both the on-site shortfall in conservation land and the off-site mitigation requirements; and WHEREAS, Pacific Point DP acquired the Project site on May 19, 2015, and seeks to develop the Project consistent with the requirements of the Revised Special 4(d) Approval; and WHEREAS, Pacific Point DP and the City have agreed to amend and restate the 2006 Agreement to insure completion of the requirements of the Revised Special 4(d) Approval and that this Agreement will supersede the 2006 Agreement. NOW THEREFORE, City and Pacific Point DP hereby agree as follows: 1. General Requirements a. Mitigation Plans. Prior to the issuance of additional building permits (excluding model home building permits and permits for Final Tract Map 14196 Lot 3) within Final Tract Map 14196 and 16750, Pacific Point DP or its successors and assigns (hereinafter, the "Developer") shall receive approval of the 2014 Revised Special 4(d) Rule Interim Habitat Loss Mitigation Plan (On-Site) for Tentative Tract Map 14196 Pacifica San Juan (a.k.a. Pacific Point) ("On-Site Mitigation Plan") and the 2014 Revised Special 4(d) Rule Interim Habitat Loss Mitigation Plan (Off-Site) for Tentative Tract Map 14196 Pacifica San Juan (a.k.a. Pacific Point) ("Off-Site Mitigation Plan") (collectively, "Mitigation Plans") from the Resource Agencies and the City. b. On-site Restoration Project. Developer shall complete installation of the on-site restoration and conservation actions, including but not limited to the restoration and conservation of approximately 9.6 acres of CSS located on the Project site ("On-site Restoration Project"), identified in the On-Site Mitigation Plan. The 2 9.6 acres of CSS to be restored and conserved are identified as Lot H and Lot I on Tract No. 16750 recorded on July 14, 2006 as Instrument No. 2006000470733 in Book 883, Page 1-10 M/M of tbe County of Orange, County Clerk-Recorder's Office, and are further described in tbe On-Site Mitigation Plan ("On-site Restoration Area"). Developer shall retain ownership of both Lot H and Lot 1. With regard to Lot H, Developer shall execute and allow tbe recording of a perpetual open space easement over Lot H (tbe "Open Space Easement"). Tbe Open Space Easement shall be substantially in tbe form attached hereto as Exhibit A. In addition. Developer shall execute and allow tbe recording of a perpetual public trail easement within Lot H (tbe "Public Trail Easement"). Tbe Public Trail Easement shall be substantially in tbe form attached hereto as Exhibit B. Tbe right-of-way created by tbe Public Trail Easement shall consist of an approximately 10-foot-wide public trail, in substantial conformance with tbe trail depicted on Schedule 1 to Exhibit B. To tbe extent tbe alignment, length or width of tbe right-of-way require any modifications as a result of soil conditions or other engineering constraints encountered during construction of tbe right-of- way, tbe Developer shall seek approval, which shall not be unreasonably withheld, from tbe City for such modifications and, if required, shall amend tbe Public Trail Easement to reflect tbe modifications. Tbe On-site Restoration Area shall remain as permanent open space. All restoration and conservation activities within tbe On-site Restoration Area shall be tbe responsibility of tbe Developer, and all on-going management and monitoring of tbe On-site Restoration Area shall be tbe obligation of a Resource Agencies-approved management entity in accordance with a non-wasting endowment established by tbe Developer and a conservation easement subject to enforcement by tbe grantee of tbe conservation easement. Off-site Restoration Project. Prior to tbe issuance of additional building permits (excluding model home building permits and permits for Final Tract Map 14196 Lot 3) within Final Tract Maps 14196 and 16750, Developer shall execute a Restoration and Conservation Agreement ("RCA") with tbe Laguna Heights Community Association ("LHCA") which is tbe homeowners association for tbe Laguna Heights Community, a residential community located in Laguna Niguel, California. Tbe RCA shall allow for utilization of at least 33.2 acres of LHCA- owned open space lands ("Off-site Restoration Area") for Project-related off- site restoration and conservation consistent with tbe Revised Special 4(d) Approval ("Off-site Restoration Project"). Developer shall complete installation of tbe off-site restoration and conservation actions identified in tbe Off-Site Mitigation Plan. Tbe Off-site Restoration Area shall remain as permanent open space. All restoration and conservation activities within tbe Off- site Restoration Area shall be tbe responsibility of tbe Developer, and all on-going management and monitoring of tbe Off-site Restoration Area shall be tbe obligation of a Resource Agencies-approved management entity in accordance with a non-wasting endowment established by tbe Developer and a conservation easement subject to enforcement by tbe grantee of tbe conservation easement. In tbe event tbe Developer is unable to use those lands owned by tbe LHCA to satisfy its obligations under tbe Revised Special 4(d) Approval, tbe Developer . J- / 1 shall be solely responsible for identifying replacement lands in satisfaction of those obligations. c. Restoration and Conservation Costs. All restoration and conservation costs associated with tbe On-site Restoration Project and tbe Off-site Restoration Project until performance criteria established by tbe Resource Agencies are achieved, as determined by tbe Resource Agencies, are tbe responsibility of Developer, regardless of whether tbe On-site Restoration Area or tbe Off-site Restoration Area are owned by tbe Developer. d. Conservation Easements. Prior to issuance of building permits (excluding model home permits and permits for Final Tract map 14196 Lot 3) within Final Tract Maps 15609,15687, 16747,16751 and 16752, Developer shall record conservation easements in a form approved by tbe Resource Agencies ensuring tbe protection and maintenance of tbe 42.8 acres of tbe On-site Restoration Area and Off-site Restoration Area as described in tbe Mitigation Plans as natural open space in perpetuity ("Conservation Easements"). Tbe Resource Agencies will act as third-party beneficiaries to tbe Conservation Easements. In tbe event Developer is unable to encumber tbe On-site Restoration Area and tbe Off-site Restoration Area with in-perpetuity Conservation Easements, tbe Developer shall be solely responsible for identifying replacement lands that will accept such Conservations Easements. Tbe long-term management, maintenance, monitoring and reporting, and any other management activities required in tbe Mitigation Plans for tbe On-site Restoration Area and tbe Off-site Restoration Area, respectively, shall be tbe responsibility of a third-party conservation organization(s) selected by tlie Developer and approved by tbe Resource Agencies ("Management Entity(ies)"). Tbe City agrees that tbe grantee(s) of tbe Conservation Easements may also be tbe Management Entity(ies). e. Endowment(s). Developer shall establish one or more non-wasting endowments for tbe benefit of tbe On-site Restoration Area and tbe Off-site Restoration Area to fund tbe Management Entity's(ies') performance of tbe activities required in tbe On-Site Mitigation Plan and tbe Off-Site Mitigation Plan ("Endowments"). Tbe establishment of tbe Endowments shall be based on a Property Analysis Record ("PAR") prepared by tbe Management Entity(ies). All costs associated with tbe On-site Restoration Project and tbe Off-site Restoration Project, tbe establishment of tbe Endowments, and tbe establishment of tbe Conservation Easements, as required by tbe Resource Agencies, shall be tbe responsibility of tbe Developer. Tbe perpetual management of tbe 42.8 acres of On-site Restoration Area and tbe Off-site Restoration Area and the additional activities funded by tbe $350,000 will be described in perpetual management plans that are revised and approved by tbe Resource Agencies prior to establishing tbe non- wasting endowment. 4 2. Security a. Surety Bond. Pursuant to the Revised Special 4(d) Approval and further communications between tbe Developer and CDFW, Developer shall, prior to issuance of additional building permits (excluding model home building permits and permits for Final Tract Map 14194 Lot 3) within Final Tract Maps 14196 and 16750, guarantee Developer's performance of this Agreement by providing a surety bond naming tbe City as beneficiary in tbe amount of three (3) million dollars to serve as security for tbe performance of tbe activities identified in tbe Cn-Site Mitigation Plan and tbe Cff-Site Mitigation Plan. As required by tbe Revised Special 4(d) Approval, if tbe surety bond is established after 2015, it will be adjusted for inflation using tbe consumer price index. b. Revision to Surety Bond. Tbe surety bond shall cover tbe cost of tbe activities identified in tbe Cn-Site Mitigation Plan and tbe Cff-Site Mitigation Plan. The surety bond shall also serve to secure tbe Endowment established pursuant to Section 1(e) of this Agreement. At such time as (i) tbe Developer executes agreements with one or more contractors or consultants to perform tbe activities identified in tbe Cn-Site Management Plan and tbe Cff-Site Management Plan, and (ii) tbe Management Entity(ies) completes tbe PAR, tbe Developer shall provide a revised surety bond to tbe City that reflects (i) tbe costs to complete tbe activities identified in tbe Cn-Site Mitigation Plan and tbe Cff-Site Mitigation Plan, as those costs are determined at that time, and (ii) tbe amount of tbe Endowment plus $350,000 for additional restoration and conservation activities benefitting open space within tbe City. Cnce tbe amount of tbe Endowment has been calculated pursuant to Section 1(e), and that amount plus $350,000 for additional restoration and conservation activities benefiting open space within tbe City has been transferred to tbe Management Entity(ies), tbe amount of tbe surety bond will be reduced accordingly. c. Enforcement of Surety Bond Performance. Tbe surety bond shall allow tbe City to enforce surety bond performance at tbe request of tbe CDFW, if tbe CDFW determines, in its sole discretion, that tbe Developer has failed to meet its mitigation obligations under tbe Revised Special 4(d) Approval. 3. Time of Completion Tbe Cn-site Restoration Project and tbe Cff-site Restoration Project shall be initiated no later than December 1, 2015, and continue until such time as tbe Resource Agencies determine that tbe performance criteria established by tbe Resource Agencies have been achieved pursuant to tbe Revised Special 4(d) Approval. 4. Force Majeure Notwithstanding tbe provisions of Section 3. Time of Completion above. Developer's time for completion of tbe Cn-Site Mitigation Plan and tbe Cff-Site Mitigation Plan shall be extended for tbe period of any enforced delay caused due to circumstances beyond tbe 5 control and without the fault of Developer, including to the extent applicable adverse weather conditions, flood, earthquakes, strikes, lockouts, acts, or failures to act of a public agency (including tbe City); provided, however, that tbe period of any enforced delay hereunder shall not include any period longer than 30 days prior to City's receipt of written notice from Developer detailing tbe grounds for Developer's claim to a right to extend its time for performance hereunder. 5. Effective Date of Agreement This Agreement shall become effective as of tbe date on which it is approved by tbe City Council and this Agreement shall supersede tbe 2006 Agreement. 6. Term of Agreement/Final Reports a. Developer shall cause to be prepared by a qualified biologist a report documenting the installation of tbe Cn-site Restoration Project and tbe Cff-site Restoration Project. Tbe final report shall be provided to tbe Resource Agencies for review and approval. A copy of tbe report shall also be provided to tbe City. b. This Agreement shall remain in full force and effect until otherwise mutually terminated by tbe Parties in writing. Tbe terms of this Agreement shall be considered satisfied upon such time as tbe Resource Agencies determine that tbe performance criteria established by tbe Resource Agencies have been achieved, pursuant to the Revised Special 4(d) Approval. 7. Assignment This Agreement shall be assignable by Developer with written notice to tbe City, which notice shall be provided by tbe Developer to tbe City vfitbin 30 days prior to tbe effective date of tbe assignment. 8. Miscellaneous Provisions a. Governing Law. Tbe Parties hereto acknowledge that this Agreement has been negotiated and entered into in tbe State of California. Accordingly, tbe Parties expressly agree that this Agreement shall be governed and enforced in accordance with tbe State of California. b. Time of Essence. Tbe Parties agree that time is strictly of tbe essence with respect to each and every term and condition and failure to timely perform any of tbe terms, conditions, obligations or provisions hereof by either party shall constitute a material breach of and default under this Agreement. c. Entire Agreement. This Agreement is tbe final expression of, and contains tbe entire agreement between tbe Parties with respect to tbe subject matter hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified, or terminated except by written instrument signed by tbe Parties. 6 d. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of the Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which be may be entitled. IN WITNESS WHEREOF, two identical counterparts of this Agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by tbe Developer herein named on tbe / day of Ty.V^ , 2015, tbe name and corporate seal of each corporate party being affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its goveming body. 7 PACIFIC POINT DEVELOPMENT PARTNERS LLC, a Delaware limited liability company By: Taylor Morrison Pacific Point Holdings, LLC its: Managing Member By: 'ffyt^^ Name: | QIAA. ^CI^AP Title: \/f CITY OF SAN JUAN CAPISTRANO By: ATTEST •TV\(T| r 4 / \ T • h / ^ 1 Maria Morris,\City Clerk ^ APPROVED AS TO FORM Jeff Ballinger, City Attomey (Signature Page to Amended and Restated Special 4(d) Interim Habitat Loss Implementation Agreement) 8 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the Identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF California COUNTY OF Orange )SS ) On September 9th. 2015 Tom Baine before me, Denlce K. Solorio File No; OSA- () APN No: _ , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(X) whose name(^ Is/jox subscribed to the within instrument and acknowiedged to me that he/k&fe/KJiS^ executed the same in his/ksr/tfaKX authorized capacity(leK), and that by his/KSk/Jbek signature^) on the Instrument the person(s):, or the entity upon behalf of which the person(5iJ acted, executed the instrument, I certify under PENALTY OF PERJURYjjfider the laws of the State of Caiifornia that the foregoing paragraph is true and correct. 1 VI^J DENICEVSOLORIO" " I *^ZX^ Commission # 2081230 t WITNESS Signature DENiCE 15. SOLORIO Commission # 2081230 Notary Public - California z Orange County 5 Comnr. Expires Se^ 11. 2018 ^ This area for official notarial seal, OPTIONAL SECTION - NOT PART OF NOTARY ACKNOWLEDGEMENT CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the documents. I I INDIVIDUAL fxk CORPORATE OFFICER(S) TTILE(S) I 1 PARTNERfS) • LIMITED • GENERAL I I ATTORNEY-IN-FACT I I TRUSTEE(S) I I GUARDIAN/CONSERVATOR I I OTHER SIGNER IS REPRESENTING: Taylor Morrison Name of Person or Entity Name of Person or Entity OPTIONAL SECTION - NOT PART OF NOTARY ACKNOWLEDGEMENT Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: Amended and Restated Special 4(5) Interim Habitat Loss Implementatio 1 NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE Reproduced by Rrst Ameri(3n Title Company 11/2007 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On October 2, 2015, before me, Maria Morris, City Clerk, personally appeared Derek Reeve, Mayor and Jeff Ballinger, City Attorney, who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY Of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Mayor City Attorney Amended and Restated Special 4(d) Interim Habitat Loss Implementation Agreement Title Revised Special 4(d) Approval for the Pacific Point Project Signer is Representing City of San .Tuan Capistrano 9 RECORDING REQUESTED BY City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED MAIL TO: City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov. Code 27382 City of San Juan Capistrano SPACE ABOVE THIS LINE FOR RECORDER'S USE Documentary Transfer Tax NO TAX DUE; RECORDING REQUESTED PER GOVERNMENT CODE SECTION 6103 APN: 675-421-18 GRANT DEED - OPEN SPACE EASEMENT FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged. Pacific Point Development Partners LLC, a Delaware limited liability company ("Grantor"), grants to City of San Juan Capistrano, a California municipal corporation ("Grantee"), over, under, and across all that real property situated in the City of San Juan Capistrano, County of Orange, State of Califomia more particularly described as Lot H of Tract 16750, as per map recorded on July 14, 2006, as Instrument No. 2006000470733 in Book 883, Pages 1 through 10, inclusive, of Miscellaneous Maps of the County of Orange, County Clerk-Recorder's Office ("Lot H"), a perpetual non-exclusive open-space easement for purposes of preserving and maintaining the natural character of Lot H, and Grantor relinquishes all rights to construct- or permit the construction of improvements and all rights to development (as defined by Califomia Public Resources Code Section 30106, which is incorporated herein by reference) within Lot H without the approval of Grantee. Notwithstanding the foregoing. Grantor expressly reserves the right to do the following on Lot H, to the extent consistent with the purposes of preserving and maintaining the natural character of Lot H and subject to applicable governmental regulatory 073I81\7082I04v4 vs. 7082104v2 1 requirements, including the Revised Special 4(d) Rule Interim Habitat Loss Mitigation Plan (On- site) for Tentative Tract 14196: a) the removal of hazardous substances or conditions or diseased plants or trees; b) the removal of non-native vegetation; c) the planting of native vegetation, including a temporary irrigation system therefor; d) the installation, repair, maintenance, and replacement of (i) a trail and associated facilities (including, by way of example and not limitation, benches, trash receptacles, or lighting), (ii) fences and retaining and other walls, (hi) surface and underground drainage and utility facilities, and (iv) directional, educational, and interpretive signage, all as heretofore or hereafter approved by Grantee; e) use of and activities on Lot H as permitted by the terms of the Conservation Easement recorded concurrently herewith against Lot H (the "Conservation Easement"); and f) use of and activities on Lot H as permitted by the terms of the Grant Deed - Public Trail Easement recorded concurrently herewith against Lot H (the "Public Trail Easement"). In the event of a conflict between any of the provisions of the Conservation Easement and the provisions this Grant Deed - Open Space Easement, the provisions of the Conservation Easement control. . Likewise, in the event of a conflict between any of the provisions of the Public Trail Easement and the provisions this Grant Deed - Open Space Easement, the provisions of the Public Trail Easement control. In clarification of the foregoing provisions of this Grant Deed - Open Space Easement, nothing herein prohibits the construction of either public-service facilities installed for the benefit of Lot H or public-service facilities installed with the authorization of the City and such other applicable public agencies with jurisdiction over Lot H (including without limitation the Califomia Public Utilities Commission). Any notice or other communications made according to this Grant Deed - Open Space Easement must be in writing and delivered personally or mailed by certified mail to the parties addressed as follows: To Grantor: To Grantee: Pacific Point Development Partners LLC City of San Juan Capistrano c/o Taylor Morrison Attn: City Clerk Attn: President, Southem California Division 32400 Paseo Adelanto 100 Spectrum Center Drive, Suite 1450 San Juan Capistrano, CA 92675 Irvine, CA 92618 [Signature Page Follows] 07318117082104v4 vs. 7082104v2 2 IN WITNESS WHEREOF, Grantor has executed this Grant Deed on the day and year hereafter written. Dated: "GRANTOR" Pacific Point Development Partners LLC, a Delaware limited liability company By: Taylor Morrison Pacific Point Holdings, LLC Its: Managing Member By: Print Name: Print Title: Dated: "GRANTEE" CITY OF SAN JUAN CAPISTRANO, a Califomia municipal corporation By: Name: Attest City Clerk APPROVED AS TO FORM Q.^ /S. '^^4^f~ '\4 ^ iLvffc^ , City Attomey 073 1 81 \7082104v4 vs. 7082104v2 Signature Page ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF ) ) ss: COUNTY OF ) On , 2015 before me, (insert name and title of the officer), personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of CaJifomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: [Seal] 073181\7082104v4 vs. 7082104v2 Exhibifc® t - Piiblic Trail Easemerrt 10 RECORDING REQUESTED BY City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED MAIL TO: City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov. Code 27383 City of San Juan Capistrano SPACE ABOVE THIS LINE FOR RECORDER'S USE Documentary Transfer Tax NO TAX DUE; RECORDINC REQUESTED PER GOVERNMENT CODE SECTION 6103 APN: 675-421-18 GRANT DEED - PUBLIC TRAIL EASEMENT 1. Grant of Public Trail Easement. FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged. Pacific Point Development Partners LLC, a Delaware limited liability company ("Grantor"), hereby grants to City of San Juan Capistrano, a Califomia municipal corporation ("Grantee"), over, under, and across a portion of that real property situated in the City of San Juan Capistrano, County of Orange, State of Califomia more particularly described as Lot H of Tract 16750, as per map recorded on July 14, 2006 as Instrument No. 2006000470733 in Book 883, Pages 1 through 10, inclusive, of Miscellaneous Maps of the County of Orange, County Clerk-Recorder's Office ("Lot H"), a perpetual non-exclusive 10-foot wide recreational public-access easement (the "Public Trail Easement") for equestrian, pedestrian, and off-road bicycle access for the general public over a recreational trail (the "Public Trail") to be constmcted by Grantor at its cost according to the provisions of that certain Revised Special 4(D) Rule Interim Habitat Loss Mitigation Plan (On- site) for Tentative Tract Map 14196; the public-access easement includes the right to install, repair, maintain, and replace associated facilities, which associated facilities include, by way of 073I81\7083709v5 vs. 7083709v3 1 example and not limitation, (i) benches, trash receptacles, and lighting, (ii) fences and retaining and other walls, (ill) surface and underground drainage and utility facilities, and (iv) directional, educational, and interpretive signage; and the public-access easement is in the location generally depicted on Schedule "1" attached hereto (the "Public Trail Easement Area"). In the event of a conflict between the as-built location of the Public Trail, as approved by Grantee, and Schedule "1", the as-built conditions control. Grantee is not required to accept the Public Trail Easement until the Public Trail improvements are completed by Grantor to the reasonable satisfaction of Grantee. 2. Maintenance; Controlling Documents. Reference is hereby made to that certain Conservation Easement (the "Couservatiou Easemeut") and that certain Grant Deed - Cpen Space Easement (the "Opeu Space Easemeut"), both of which are recorded against Lot H concurrently with this Grant Deed - Public Trail Easement. Lot H, including the Public Trail, shall be maintained in accordance with the provisions of the Conservation Easement, and in the event of a conflict between the provisions of the Conservation Easement and the provisions of this Grant Deed - Public Trail Easement (the "Public Trail Easemeut Deed"), the provisions of the Conservation Easement control. In the event of a conflict between the provisions of the Cpen Space Easement and this Public Trail Easement Deed, the provisions of this Public Trail Easement Deed control. 3. Liability. Grantor and Grantee are entitled to all immunities, limitations on liability, and rights of recovery that are available under applicable law to public and private entities (including, but not limited to Califomia Civil Code Sections 846 and 846.1, Califomia Public Resources Code Section 5075.4, Califomia Government Code Section 831.4 and other provisions of Califomia's Torts Claim Act) with respect to recreational trails and the public's use of such trails and the private or public property adjacent to them. Notwithstanding the foregoing. Grantee agrees to save, defend, and hold Grantor harmless from any claim or liability arising out of the public's use of the Public Trail, except for injuries caused by the willful or malicious conduct of Grantor or Grantor's agents and independent contractors. Nothing in this Section 3 is intended to modify or otherwise alter the application of relevant governmental or private landowner immunities. 4. Successors in Interest. This Public Trail Easement Deed benefits and binds Grantor's heirs, successors, administrator, executors, and assignees. 5. Notices. Any notice or other communication made according to this Public Trail Easement Deed must be in writing and delivered personally or mailed by certified mail to the parties addressed as follows: To Grantor: To Grantee: Pacific Point Development Partners LLC c/o Taylor Morrison Attn: President, Southem Califomia Division 100 Spectrum Center Drive, Suite 1450 City of San Juan Capistrano Attn: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 07318n7083709v5 vs. 7083709v3 2 Irvine, CA 92618 6. • Entire Agreement. This agreement contains the entire .^agreement between the"^^ parties. Any oral representations or modifications conceraing this agreement are of no force or t effect except for a subsequent modification in writing, signed by the parties. 7. Counterparts. This agreement may be executed in one or more counterparts, eaqh?- of which shall be deemed an original, and all of which together shall eonstitute one and the same , instrument [Signature Page Follows] 073181\7083709v5 vs. 7083709v3 3 IN WITNESS WHEjREGF, the parties hereof have exeonted-ithis tgreerneiit as-of the dates set forth with their respective signatures below. "GRANTOR" "GRANTEE' PAeiFIC POINT DEVELOPMENT PARTNERS LLC, a Delaware limited liability company By: Taylor -Morrison Pacific Point Holdings^.. LLC Its: Managing Member By: . . Namer : , Its: , . CITY OF SAN JUAN CAPISTRANG, a California municipal corporation By:. Name:_ Date: Date: Attest; City Clerk APPROVED AS TO FORM dty Attomey 073t81\7083709v5 vs. 7083709v3 Signature Page. ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF ) ) ss: COUNTY OF ; ) On , 2015 before me, (insert name and title of the officer), personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is tme and correct. WITNESS my hand and official seal. Signature: [Seal] 073 1 81\7083709v5 vs. 7083709v3 . , - *• V *^*L Schedule"!" Public Trail Easement Area 073181\7083709v5 vs. 7083709v3 Schedule 1 Schedule 1 - Lot H and Public Trail LEGEND LOT H PROPERTY BOUNDARY 1