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<br />limited to, jet aircraft, propeller drawn aircraft, aircraft powered by other means, civil aircraft,
<br />military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence
<br />or hereafter developed for the purpose of transporting persons or property through the air, by
<br />whomever owned or operated.
<br />
<br />As used in this Avigation Easement, the term "Airspace" shall mean the entire area above
<br />those certain imaginary surfaces over the ground surface of the Property that are within the Federal
<br />Aviation Regulations ("'FAR") Part 77 Surfaces, as specified in Advisory Circulars 7017460-2K
<br />(height criteria) and 7017460-lH (standards for marking and lighting) and any and all successor
<br />revisions or regulations by the Federal Aviation Administration, any successor agency, or any other
<br />agency of the federal, state or local government of the United States of America exercising
<br />comparable authority except that additional area below those certain imaginary surfaces over the
<br />ground surface of the Property particularly described in Exhibit "A" attached hereto.
<br />
<br />It is expressly intended by Grantor and the City that this A vigation Easement shall not
<br />supersede or impair any existing prescriptive, avigation, or other easements, rights, or interests of the
<br />City, in or applicable to the Subject Property, if any, all of which easements, rights, interests, and any
<br />remedies related thereto are expressly reserved by the City.
<br />
<br />In furtherance of this A vigation Easement, and rights herein granted, Grantor, and the heirs,
<br />administrators, executors, agents, successors, and assigns of Grantor, hereby covenant at all times
<br />hereafter, that it/they will not take any action or knowingly cause any electronic, light or other
<br />transmissions or emissions, construct or grow any obstruction, or discharge any fumes, dust or smoke
<br />on the Subject Property which would conflict or interfere with or infringe on the City's rights herein
<br />granted, or to otherwise impair the usability or function of JW A.
<br />
<br />The rights, easements, benefits, restrictions, covenants and agreements granted herein,
<br />including this A vigation Easement, shall continue notwithstanding any increase or other change in
<br />the type, boundaries, volume of operations, frequency, duration, noise, or pattern, location of air
<br />traffic to, from or at JW A. This A vigation Easement may not be modified, amended, terminated, or
<br />abandoned except by execution and delivery of an instrument executed and acknowledged by the
<br />City, or its agents, successors, and assigns, and Grantor agree(s) that, in the absence of such an
<br />instrument, no conduct or use of the Subject Property by Grantor for any period of time shall be
<br />construed to establish prescriptive rights in Grantor or its successors or assigns, nor shall any conduct
<br />by the City, or its agents, successors and assigns, or increase, diminution, or change in use of this
<br />A vigation Easement, or the operation or use of JW A by Grantee constitute an overburdening of this
<br />Avigation Easement or a termination or abandonment of this Avigation Easement.
<br />
<br />Construction of the "MacArthur Place" project (the "Project") at the Subject Property will
<br />require the use of construction cranes and related construction equipment. For purposes of this
<br />A vigation Easement, the City will not consider the temporary utilization of the construction cranes
<br />and related construction equipment that have a height that exceeds JW AFAR Part 77 imaginary
<br />surfaces as an encroachment on or in violation of this A vigation Easement, provided that all of the
<br />following apply:
<br />
<br />The Federal Aviation Administration ("FAA") has conducted any required
<br />aeronautical study of the proposed object(s) pursuant to FAA Order 7400.2E, and any and all
<br />successor revisions or regulations, and has issued a "Determination of No Hazard to Air Navigation"
<br />for the proposed objects; and
<br />
<br />Grant of Avigation Easement
<br />DOCSOC/I1 10339vl 1/24579-0001
<br />Ordinance NS-2691
<br />Page 66 of 73
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<br />E-4
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