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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 />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 70/7460-2K <br />(height criteria) and 70/7460-1 H (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 />It is expressly intended by Grantor and the City that this Avigation 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 Ciry. <br />In furtherance of this Avigation 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 idthey 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 JWA. <br />The rights, easements, benefits, restrictions, covenants and agreements granted herein, <br />including this Avigation 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 JWA. This Avigation 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 />Avigation Easement, or the operation or use of JWA by Grantee constitute an overburdening of this <br />Avigation Easement or a termination or abandonment of this Avigation Easement. <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 />Avigation Easement, the City will not consider the temporary utilization of the construction cranes <br />and related construction equipment that have a height that exceeds JWA FAR Part 77 imaginary <br />surfaces as an encroachment on or in violation of this Avigation Easement, provided that all of the <br />following apply: <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 />Grant of Avigation Easement E-4 <br />DOCSOC/ 1 110339v l 1/24579-0001 <br />75A-72 <br />