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HomeMy WebLinkAbout09 - Lease Agreement, Authorizing the Lease of Retail Space in the Central Library at the Civic Center Located at 1000 Avocado Avenue CTY OF J+ - NEWPORT BEACH City Council Staff Report September 22, 2015 Agenda Item No. 9 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director— (949) 644-3226, kbrandt@newportbeachca.gov PREPARED BY: Lauren Whitlinger, Real Property Admin istrator/Seimone Jurjis, Asst. CDD Director, CBO PHONE: 949-644-3236 TITLE: Lease Agreement between the City of Newport Beach and Credit Union of Southern California, Authorizing the Lease of Retail Space in the Central Library at the Civic Center Located at 1000 Avocado Avenue ABSTRACT: The City of Newport Beach (City) issued a request for proposals (RFP) for a financial institution or banking tenant to occupy the retail space in the newly expanded Central Library in November 2012. After a thorough review and selection process, staff is recommending approval of a lease agreement with Credit Union of Southern California to operate a credit union branch in the vacant retail space at the library. RECOMMENDATION: a) Find that the execution of the Lease Agreement is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines; and b) Approve and authorize the Mayor and City Clerk to execute a five-year lease agreement with Credit Union of Southern California, in substantially the same form as the attachment to the staff report. FUNDING REQUIREMENTS: The credit union will generate a base rent of $21,000 in the first year, with subsequent annual rent adjustments of three percent, as stipulated in the lease agreement. Revenue for the retail space will be deposited to the General Fund. DISCUSSION: Retail Space The City's Civic Center includes a 579 square-foot retail space, which is located on the second floor of the Central Library across from the popular Bistro 24 Express cafe (Attachment CC 2). The retail space includes two rooms; the front office has teller counters and cabinets, which can be secured with a 9-1 roll-down security gate, and the back office has cabinetry and space for an automatic teller machine. Selection Process In November 2012, the City published RFP No. 13-18 soliciting proposals for an operator for the retail space. The City received one proposal from the Newport Beach Employees Federal Credit Union (NBEFCU), but they ultimately decided against leasing the space. Staff continued to advertise the space seeking market-rate tenants. Offers to lease the space were received from a preschool, tutoring center, religious reading room, travel agency, and credit union. The City received an offer to lease the space from Credit Union of Southern California (CU SoCal) in February 2015. CU SoCal recently merged with the NBEFCU. Membership to CU SoCal is available to anyone that lives, works, worships, or goes to school in Orange, Los Angeles, and San Bernardino Counties; family members of CU SoCal members are also eligible to join. Therefore, Newport Beach residents are eligible to join CU SoCal and participate in their programs. In evaluating CU SoCal's proposal, staff considered the tenant's experience, their proposed operations, scope of financial service offerings, and the proposed deal points. Library Services Director Tim Netherton presented the CU SoCal proposal to the Board of Library Trustees (Library Trustees) at their June 15, 2015 meeting, and the Library Trustees voted to recommend to City Council that the retail space be leased to CU SoCal (Attachments CC3 and CC 4). Tenant Background Chartered in 1954, CU SoCal has over $900 million in assets, 15 branch locations, and account access at more than 30,000 no-surcharge ATMs. CU SoCal offers a full range of financial products: home and auto loans, commercial loans, no-fee Visa loans, no-fee checking, and certificates of deposits, money market accounts, and financial planning services (Attachment CC 5). Approximately, 75 percent of incoming calls are answered within one minute by a live person. With a five-star rating, the highest score available from Bauer Financial (an independent bank research firm), CU SoCal is considered a safe, financially sound credit union that operates well above federal regulatory capital requirements. City Council Policy F-7, Income Property Pursuant to City Council Policy F-7, Income Property (Attachment CC 6), the City conducted an open bid process to select a tenant to operate the retail space. A review of recent appraisals, recent City approved agreements, and comparable market data for similar properties was conducted to determine the fair market value rent for the Agreement. Proposed Agreement The proposed terms of the Lease Agreement are summarized below: 1. The term of the agreement will be for five years with two five-year extension options, unless terminated as provided by the agreement. 2. Base rent shall be set at $3 per square foot, or $21,000 per year. The base rent shall adjust annually upon the effective date by three percent per year. 3. Hours of operation shall be Monday through Friday between 9 a.m. and 6 p.m., and Saturday between 9 a.m. and 1 p.m., with closures allowed on all City observed holidays and nationally recognized bank holidays. 4. Tenant to comply with the Special Land Use Restrictions (Attachment CC 7) agreed upon by the City and The Irvine Company for the Civic Center property as they pertain to the operation and marketing of the retail space. The City Manager will consult with The Irvine Company prior to executing the Agreement to ensure compliance with the restrictions. 9-2 5. Tenant is responsible for all interior non-structural improvements to the lease premises, including installation of fixtures, furniture, and equipment, subject to City review and approval of all plans, and approval of all necessary permits. 6. Tenant is responsible for operations, maintenance, and repair of the lease premises, at its sole cost and without expense to the City. 7. Insurance and indemnity provisions are consistent with current standards; all other lease terms are consistent with the City's standard terms. This agreement has been reviewed by the City Attorney's office and has been approved as to form. Contract Summary Proposed Credit Union of Southern Vendor Name California 5 Years,two 5-Year Term options Escalation Clause 3% per year Revenue/Year $21,000 Cost/Year $0 Cost/Contract Term (est) $0 Selection Process Sole Source or RFP/RFQ RFP Method (QBS vs. Low Bid) QBS #of Respondents 5 #of Qualified Respondents 5 ENVIRONMENTAL REVIEW: The recommended actions are not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment CC 1 - Lease Attachment CC 2 - Maps Attachment CC 3 - Library Trustees Staff Report-June 15, 2015 Attachment CC 4- Library Trustees Approved Meeting Minutes-June 15, 2015 Attachment CC 5 -Credit Union of So Cal Brochure Attachment CC 6- City Council Policy F-7 Income Property Attachment CC 7 - Special Land Use Restrictions Agreement 9-3 ATTACHMENT CC 1 Civic Center Lease Agreement Between the City of Newport Beach And Credit Union of Southern California This Civic Center Lease Agreement ("Agreement") is made and entered into as of the 22nd day of September, 2015 ("Effective Date"), by and between the City of Newport Beach ("City"), a California municipal corporation and charter city, and Credit Union of Southern California, ("Tenant"), a California corporation. RECITALS A. The Civic Center located at 100 Civic Center Drive, Newport Beach, California includes a newly constructed City Hall, City Council Chambers, a public park, and an expansion of the existing Central Library located at 1000 Avocado Avenue, Newport Beach ("Project"). The Project includes a five hundred seventy-nine (579) square foot retail space which is depicted on Exhibit "A" and incorporated herein by this reference ("Premises"). B. The City issued a Request for Proposals (No. 13-18) for Civic Center Retail/Service Space on November 21, 2012. C. After a careful evaluation process and a recommendation from the Library Board, the City selected Tenant to operate a financial institution, including an automatic teller machine (ATM) at the Premises. D. Tenant and City desire to enter into this Agreement to allow Tenant to operate a financial institution, intended to provide an automatic teller machine ("ATM") and full service Credit Union offering a wide range of financial products to library visitors and staff, city hall visitors and staff, and the general public in accordance with Tenant's customary terms and eligibility requirements ("Credit Union"). 9-a AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants herein contained, City and Tenant hereby agree as follows: 1. DEFINITIONS 1.1 General Definitions. As used in this Agreement, the following words and phrases shall have the following meanings: (a) Alteration - any improvements, additions, alterations, changes, or modifications of the Premises made by Tenant including, but not limited to fixtures and signage. (b) Authorized City Representative - the City Manager or his/her designee. (c) Common Area - the areas within the Project which are available for non-exclusive use by City, Tenant, the public, and other tenants and/or users. (d) Delivery Date - the date the City provides Tenant access to the space prior to Rent Commencement, in order for Tenant to prepare space for operation. (e) Expiration - the lapse of the time specified as the Term of this Agreement, including any extension of the Term resulting from the exercise of an option to extend. (f) Good Condition - neat and broom-clean and in substantially the same condition as of the Delivery Date of the Premises to Tenant, and is equivalent to similar phrases referring to physical adequacy in appearance and for use. (g) Law - any judicial decision, statute, constitution, ordinance, resolution, regulation, rule, administrative order, or other requirement of any municipal, county, state, federal, or other government agency or authority having jurisdiction over the parties hereto or the Premises. 9-5 (h) Maintenance or Maintain - repairs, replacement, maintenance, repainting, and cleaning. (i) Person - one (1) or more natural persons, or legal entities, including, without limitation, partnerships, corporations, trusts, estates, associations, or a combination of natural persons and legal entities. 6) Provision - any term, covenant, condition, or clause in this Agreement that defines, establishes, or limits the performance required or permitted by either party. (k) Rent - includes Base Rent, taxes, and other similar charges payable by Tenant under the provisions of this Agreement. (1) Rent Commencement - date Tenant begins paying Rent, commencing thirty (30) calendar days after the Delivery Date or first day Tenant is open for business from the Premises, whichever occurs first. (m) Successor - assignee, transferee, personal representative, heir, or other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to the rights or obligations of either Party. (n) Termination - the termination of this Agreement, for any reason, prior to Expiration. 1.2 Other Definitions. - The following additional terms are defined in the following sections of this Agreement: (a) Base Rent §4.1 (b) Claim or Claims §10.1 (c) Hazardous Materials §16 (d) Indemnified Parties §6.3 (e) Option Term(s) §3.2 (f) Project Recitals, §A (g) Premises Recitals, §A s-6 2. PREMISES City finds it to be in the public interest and consistent with public facility uses to grant an exclusive right to operate a financial institution at the Premises. Therefore, pursuant to the terms and conditions set forth herein, City hereby grants to Tenant the exclusive right and privilege to conduct a business at the Premises engaged in operating a full service Credit Union described in Section 5.1, Business Purposes. Tenant agrees to accept the Premises in an "as is" condition as tendered by City. Tenant agrees that no representations with respect to the condition or improvements of the Premises have been made by City except as specifically set forth in this Agreement. 3. TERM 3.1 Term of Agreement. The Term of this Agreement shall be five (5) years from the Effective Date unless terminated sooner as provided in Section 15, or extended as provided in Section 3.2. 3.2 Option to Extend. Provided Tenant is not then in default, and upon approval of the City, Tenant and City may extend the term of this Agreement for two (2) additional successive terms of five (5) years (the "Option Term" or "Option Terms") the first commencing on Expiration of the initial Term and the second commencing on Expiration of the first Option Term, on the same terms and conditions as contained in this Agreement. Tenant must exercise the option by giving City written notice of its intention to do so at least six (6) months prior to Expiration of the initial Term or the first Option Term. 3.3 Hold Over. Should Tenant, with City's consent, hold over and continue in possession of the Premises after Expiration of the Term or any Option Term, Tenant's continued occupancy of the Premises shall be considered a month-to-month tenancy subject to all the terms and conditions of this Agreement, except the provisions of Sections 3.1 and 3.2. 9-7 4. RENT 4.1 Base Rent. Tenant shall commence payment of Base Rent upon the Rent Commencement Date, which shall be no later than thirty (30) calendar days after the Delivery Date. The Base Rent shall be established at the fair market value rate of Twenty-One Thousand and 00/100 Dollars ($21,000.00) per year. Base Rent shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., One Thousand Seven Hundred Fifty and 00/100 Dollars ($1 ,750.00) per month). Base Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term. Annually, upon each successive anniversary date of the Effective Date, the Base Rent shall be increased three percent (3%). 4.2 Reserved. 4.3 Payment Location. Rent shall be payable at the office of the City's Revenue Division at 100 Civic Center Drive, Newport Beach, California, or at such other place or places as City may from time to time designate by written notice delivered to Tenant; or by electronic delivery if mutually agreed upon by City and Tenant. 4.4 Late Payment. Tenant hereby acknowledges that the late payment of Rent or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Tenant not paid within five (5) days of its due date shall be subject to a ten percent (10%) late charge. City and Tenant agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Tenant. 4.5 Interest on Unpaid Sums. Unpaid sums due to either City or Tenant under this Agreement shall bear interest at the rate of ten percent (10%) per annum on the s-8 unpaid balance, including but not limited to late payment penalties, from the date due until paid. 5. BUSINESS PURPOSES AND USE OF PREMISES 5.1 Business Purposes. The Premises are to be used by Tenant for the operation of a financial institution, intended to provide an ATM and a full service Credit Union offering a wide range of financial products to library visitors and staff, city hall visitors and staff, and the general public in accordance with Tenant's customary terms and eligibility requirements. 5.2 Operation of Premises. Tenant shall operate and manage the Premises in a manner comparable to other high quality businesses providing similar services. Deliveries to the Premises shall be made and completed only between 7:00 a.m. and 6:00 p.m. on non-holiday weekdays. The loading zone designated for use by Tenant for deliveries, as shown on Exhibit "B", is shared with the Central Library and concession tenant ("Concessionaire") located at the Project, and priority shall be given to deliveries for the Central Library and Concessionaire. 5.3 Prohibited Uses. Tenant shall not sell or permit to be kept, used, displayed or sold in or about the Premises (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia, or other material which would be considered lewd, obscene or licentious, (b) any article which may be prohibited by standard forms of fire insurance policies. Vending machines, gaming machines or video or arcade games shall not be used or installed on the Premises unless expressly permitted by this Agreement. Tenant shall not use or permit the use of the Premises in any manner that (a) creates a nuisance or (b) violates any Law. Tenant shall not offer entertainment or broadcast music or entertainment through exterior speakers or other form of transmission without the written approval of City. In this event, Tenant shall obtain all required City permits and approvals. 9-9 5.4 Common Areas. Tenant may not expand into the Library area, or other public areas at the Project, or place any temporary furniture, advertising displays, or objects in the public areas of the Project without prior written approval of the City and coordination with the Library. 5.5 Operation. Tenant shall keep the Premises in operation and open to the public for business on a daily basis, in accordance with the following schedule: Monday through Friday from 9:00 a.m. to 6:00 p.m. Saturday from 9:00 a.m. to 1:00 p.m. Tenant shall be closed on all City observed holidays, including but not limited to New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, 4th of July, Labor Day, Veteran's Day, Thanksgiving Day and Friday following, Christmas Day, and any other day the Central Library may be closed as designated by the City Manager or the Library Services Director. Tenant may close the Premises during periods of remodeling, reconstruction, inventory and emergencies or to comply with applicable state or federal banking Laws and regulations with prior written approval from the City. 5.6 Equipment. Tenant shall install, at Tenant's own expense, additional equipment as listed on Exhibit "C" required to provide the financial services offered by Tenant, and which may be necessary to operate Tenant's business. Tenant shall ensure that additional equipment is installed properly pursuant to the manufacturer's specifications, does not exceed the electrical or other utility loads designated for the Premises, and is in compliance with all applicable local and state building codes and any applicable state or federal banking regulations. 5.7 Advertising Display. Tenant may, at its own expense, place unlit signs in or upon the Premises subject to the prior written consent of the City as to the size, type, number, design and method of installation and in compliance with the City's sign code s-10 regulations and the deed restrictions applicable to the Premises. All signage placed by Tenant on, in or about the Premises shall remain the property of Tenant and shall be removed by Tenant upon Termination or Expiration of this Agreement at Tenant's expense; and any damage caused by removal shall be repaired at Tenant's expense. 5.8 Marketing. Tenant may, at its own expense, promote Credit Union of Southern California and distribute marketing materials subject to the written approval of the City and the conditions and restrictions of the Agreement of Mutual Understanding Regarding Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase recorded on May 8, 1992 as Instrument No. 92-304757 by and between The Irvine Company LLC and the City of Newport Beach, attached as Exhibit "D", and incorporated herein by reference. 5.9 Personnel. Tenant shall be responsible for hiring the necessary personnel to conduct the daily operation of Premises. Tenant shall comply with all federal, state, and local Laws related to minimum wage, social security, nondiscrimination, ADA, unemployment compensation, and workers' compensation. If required by the City, Tenant's employees shall wear a uniform and/or identification badge. 5.10 Independent Contractor. It is understood that Tenant and its employees are an independent contractor and not an agent or employee of City. Nothing in this Agreement shall be deemed to constitute approval for Tenant or any of Tenant's employees or agents, to be the agents or employees of City. City shall have no interest in the business of Tenant. 5.11 No Distress Sales. No auction, fire, bankruptcy, "going out of business" or other distress sales of any nature may be conducted on the Premises without the prior written consent of the City Manager. 5.12 Restroom Facilities for Employees. Tenant, its employees and customers shall have full use of restroom facilities located within the Central Library as called out 9-11 on Exhibit "B". Restroom facilities are shared with the Central Library employees and visitors, and are considered Common Area. 5.13 Parking for Employees. Tenant may use up to two (2) non-exclusive parking spaces for Tenant and its employee's vehicles, located within the parking structure at the Project on level two (2) or above. 5.14 Building Access and Security. Access to the Premises is limited to the hours the library has staff on-site. No after-hours access to the Premises will be available to Tenant unless arranged in advance with the City Manager or his/her designee, or the Library Services Director or his/her designee. Tenant is responsible for securing the Premises during non-business hours, including but not limited to security of equipment, personal property, valuables, and the ATM machine within the Premises; pursuant thereto, Tenant shall have the right to install, at its own cost, its own security system ("Security System") in or about the Premises so long as the Security System does not materially interfere with the Central Library's operations. 6. TAXES, LICENSES AND OTHER OBLIGATIONS 6.1 Payment of Taxes. Tenant shall pay directly to the appropriate taxing authorities all taxes applicable to this Agreement, fixtures and Tenant's personal property on the Premises, that are levied or assessed against Tenant during the Term. Taxes shall be paid at least ten (10) calendar days before delinquency and before any fine, interest or penalty is due or imposed by operation of law. Tenant shall, upon request, promptly furnish to the City satisfactory evidence of payment. Tenant acknowledges that this Agreement may create a possessory interest subject to property taxation and that Tenant may be subject to the payment of property taxes levied on such interest. Tenant shall pay, before delinquency all taxes, assessments, license fees and other charges ("Taxes") that are levied or assessed against Tenant's interest in the Premises or any personal property installed on the Premises. s-12 6.2 Payment of Obligations. Tenant shall promptly pay, when due, any and all bills, debts, liabilities and obligations incurred by Tenant in connection with Tenant's occupation and use of the Premises. 6.3 Challenge to Taxes. Tenant shall have the right in good faith, at its sole cost and expense, to contest the amount or legality of any Taxes on or attributable to this Agreement, the Premises, Tenant's personal property, or Tenant's occupation and use of the Premises, including the right to apply for reduction. If Tenant seeks a reduction or contests such taxes, Tenant's failure to pay the Taxes shall not constitute a default as long as Tenant complies with the provisions of this Section. City shall not be required to join in any proceeding or contest brought by Tenant unless the provisions of any Law require that the proceeding or contest be brought by or in the name of City. In that case, City shall join in the proceeding or contest or permit it to be brought in City's name as long as City is not required to bear any cost. If requested by Tenant, City shall execute any instrument or document necessary or advisable in connection with the proceeding or contest. Tenant, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, together with all related costs, charges, interest and penalties. Tenant shall indemnify, defend and hold harmless the City, its council members, boards, commissions, committees, officers, employees, Authorized City Representatives, agents and volunteers ("Indemnified Parties") from and against any liability, claim, demand, penalty, cost or expense arising out of or in connection with any contest by Tenant pursuant to this Section. 7. UTILITIES. Tenant shall be responsible for payment of all utilities furnished to or used at the Premises exclusively by Tenant, or for paying Tenant's pro-rata share of utilities furnished to or used on the Premises, including, without limitation, gas, electricity, sewer, water, refuse collection, telephone service, and cable TV. Tenant's pro-rata 9-13 share shall be included on base rent invoices each quarter. Tenant may use City's trash enclosures or public trash cans, provided however, that City may, at City's discretion, require Tenant to arrange for its own refuse collection. Refuse collection shall occur between 7 a.m. and 6 p.m. on non-holiday weekdays. 8. ALTERATIONS TO THE PREMISES. 8.1 Tenant Improvements. Tenant acknowledges that City has delivered the Premises with the improvements shown on Exhibit "A". Further improvements by the Tenant must be submitted for review of improvement plans and permitting, and construction shall be subject to the prior written approval of the City Manager. Tenant improvements shall be performed between 7 a.m. and 6 p.m. on non-holiday weekdays. Any contractors hired by Tenant shall be fully licensed and bonded. Tenant's contractors and any subcontractors shall obtain insurance in an amount and form to be approved by City's Risk Manager, including workers compensation insurance as required by law, general liability, automobile liability and builder's risk insurance covering improvements to be constructed, all pursuant to standard industry custom and practice. City shall be named as an additional insured on the contractors and any subcontractors policies. 8.2 Permits. Unless restricted by law, Tenant shall obtain, and be responsible for the costs for, all building permits, and other required permits prior to commencement of Tenant improvements and operations. 8.3 Quality of Work Performed. All Alterations, maintenance and other work shall be performed in a good and workmanlike manner, shall comply with the plans and specifications submitted to City, and shall comply with all applicable governmental permit requirements and Laws in force at the time permits are issued. 8.4 Payment of Costs. Tenant shall pay all costs related to the construction of the improvements and any Alterations by Tenant or its agents. 9-14 8.5 Liens. Tenant shall keep the Premises free from any liens arising out of any work performed, material furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. 8.6 Disposition of Alterations at Expiration or Agreement Termination. Any Alterations made to the Premises shall remain on, and be surrendered with, the Premises on Expiration or Termination of this Agreement (excluding Tenant's fixtures, equipment, furniture, and moveable decorations). However, City may elect not less than one hundred eighty (180) calendar days prior to Expiration or Termination of this Agreement, to require Tenant to remove any Alterations that Tenant has made to the Premises. If City requires removal of Alterations, Tenant shall, at its cost, remove the Alterations and restore the Premises to a broom-clean condition before the last day of the Term. Prior to Expiration or within fifteen (15) calendar days after Termination of this Agreement, Tenant may remove any moveable partitions, machinery, equipment, furniture, and trade fixtures previously installed by Tenant, provided that Tenant repairs any damage to the Premises caused by removal. 9. MAINTENANCE OF PREMISES 9.1 Maintenance and Repair by Tenant and City. Tenant agrees that it will keep the Premises in Good Condition. Additionally, Tenant shall be responsible for clearing away trash, and debris if advertising materials are distributed from the Premises, from the floors and tables located in the entry atrium and on the patio where customers will likely congregate. City may perform Maintenance or repairs in the event Tenant fails to commence required Maintenance or repairs within the time provided by City in the notice requesting such Maintenance or repair. The cost of any Maintenance or repairs by the City pursuant to this Section shall be payable as additional Rent. All furnishings, equipment, facilities, improvements, Alterations, attachments and appurtenances provided by City or installed by Tenant, and required for operations, 9-15 including all ATM equipment and interior furnishings, including items under warranty, shall be maintained in Good Condition and repair by Tenant at its cost. City may perform required cleaning and charge the costs to Tenant if the Tenant fails to perform within the time provided by City in the notice requesting the cleaning and continue to Maintain the area as required by this Agreement. 9.2 Entry by City. Upon twenty-four (24) hour notice to Tenant, City and its Authorized City Representatives may enter upon and inspect the Premises at any reasonable time for any lawful purpose. In case of emergency, City or its Authorized City Representative may, without prior notice, enter the Premises by whatever force necessary if Tenant is not present to open and permit an entry. Any entry to the Premises by City shall not be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof. 10. INDEMNITY AND EXCULPATION 10.1 Hold-Harmless Clause. Tenant agrees to indemnify, defend and hold harmless the City, its City Council, Boards, Commissions, Committees, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim'; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to Tenant's possession, occupation or use of the Premises, specifically including, without limitation, any claim, liability, loss, or Damage arising by reason of: (a) The death or injury of any Person or damage to personal property caused or allegedly caused by the condition of the Premises or an act or omission of s-1s Tenant or an agent, contractor, subcontractor, supplier, employee, servant, or sublessee of Tenant; (b) Any work performed on the Premises or materials furnished to the Premises at the request of Tenant or any agent or employee of Tenant, with the exception of Maintenance performed by City; and/or (c) Tenant's failure to perform any provision of this Agreement or to comply with any requirement of Law or any requirement imposed on the Premises by any duly authorized governmental agency or political subdivision. Tenant's obligations pursuant to this Subsection shall not extend to any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 10.2 Exculpation of City. Except as otherwise expressly provided in this Agreement, City shall not be liable to Tenant for any damage to Tenant or Tenant's property from any cause other than the sole negligence, intentional or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this Agreement, Tenant waives all claims against the Indemnified Parties arising for any reason other than the sole negligence, intentional or willful acts of the Indemnified Parties. City shall not be liable to Tenant for any damage to the Premises, Tenant's property, Tenant's goodwill, or Tenant's business income, caused in whole or in part by acts of nature such as earthquakes, floods, fire or other natural disaster. 11. INSURANCE Without limiting Tenant's indemnification of City, Tenant will obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall s-n provide, at a minimum, those items described in Exhibit "E" attached hereto and incorporated herein by this reference. 12. DAMAGE OR DESTRUCTION OF PROJECT/PREMISES 12.1 Destruction of Premises. If the Premises are totally or partially destroyed, rendering the Premises or any portion thereof totally or partially inaccessible or unusable, Tenant shall restore the Premises to substantially the same condition as immediately prior to such destruction (including all trade fixtures, personal property, improvements and Alterations as are installed by Tenant, which shall be replaced by Tenant at its expense). Tenant may elect to terminate this Agreement by giving notice of such election to City within sixty (60) calendar days after the date of the occurrence of any casualty if the cost of the restoration exceeds the amount of any available insurance proceeds, or if Tenant reasonably estimates that repairs of the Premises will take more than six (6) months. Upon such termination, insurance proceeds applicable to reconstruction of the Project (excluding Tenant's personal property therein) shall be paid to City and Tenant shall have no further liability or obligations under this Agreement. 12.2 Replacement of Tenant's Property. In the event of damage or destruction of improvements located on the Premises not giving rise to Tenant's option to terminate this Agreement, Tenant shall, at its own expense, replace and repair all Tenant's trade fixtures, equipment, machinery, furnishings, furniture and inventory as soon as reasonably possible to permit the prompt continuation of Tenant's business at the Premises. 12.3 Destruction of Project. In the event that all or a portion of the Project is damaged, and the Premises or a material portion becomes inaccessible or commercially unusable, and the damage or destruction cannot reasonably be repaired 9-18 within twelve (12) months after the date of the casualty, City shall have the right to either: (a) Terminate this Agreement by giving to Tenant written notice (which notice shall be given, if at all, within thirty (30) calendar days following the date of the casualty), in which case this Agreement shall be terminated thirty (30) calendar days following the date of the casualty; or (b) Give Tenant written notice of City's intention to repair such damage as soon as reasonably possible at City's expense, in which event this Agreement shall continue in full force and effect; however, Rent shall be abated in accordance with the procedures set forth in Section 13. Tenant may terminate this Agreement by giving City written notice at any time prior to the commencement of repairs if City agrees to repair the Project pursuant to this Section and fails to commence repairs within one hundred twenty (120) calendar days after giving Tenant written notice of its intention to repair. In such event, this Agreement shall terminate as of the date of notice from Tenant to City, and City shall have no liability under this Agreement. 13. ABATEMENT OF RENT 13.1 General Rule. In the event of damage or destruction of the Premises or Damage to the Project that impacts the Premises and this Agreement is not terminated, Tenant shall continue to utilize the Premises for the operation of its business to the extent it may be practicable and commercially reasonable. Rent shall abate only in proportion to the area of the Premises that is rendered unusable. The abatement of Rent shall commence on the date that use of the Premises is impacted and continue until the completion of those repairs necessary to restore full use of the Premises and Tenant's re-opening of the Premises. Tenant's obligation to pay Taxes pursuant to this Agreement shall not be abated or reduced. Rent shall not abate if the damage or destruction to the Premises is the result of the negligence or willful conduct of Tenant or s-1s its employees, officers or agents. Tenant's right to abatement of Rent is contingent on payment of insurance proceeds, if any, equal to the amount of Rent pursuant to coverage required by Exhibit "E". 13.2 Abatement/Maintenance. Tenant shall not be entitled to any abatement of Rent for Maintenance that occurs during the Maintenance period. 14. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND ENCUMBERING 14.1 Prohibition of Assignment. City and Tenant acknowledge that City is entering into this Agreement in reliance upon the experience and abilities of Tenant. Consequently, Tenant shall not voluntarily assign or encumber its interest in this Agreement or in the Premises, or assign substantially all or any part of the Premises, or allow any other person or entity (except Tenant's authorized representatives) to occupy or use all or any part of the Premises without the prior written consent of City, which shall not be unreasonably withheld. Any assignment or transfer made without the City's written consent is null and void. City's consent to any assignment or other transfer is subject to Tenant providing City with evidence reasonably satisfactory to City that the proposed transferee has financial strength and financial experience comparable to Tenant and the use of the Premises by the proposed transferee is consistent with the terms of this Agreement. Except as otherwise expressly provided herein, any dissolution, merger, consolidation, reorganization of Tenant, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Tenant, shall be deemed a voluntary assignment; provided, however, that the sale or transfer of a controlling percentage of the capital stock of Tenant pursuant to a public offering(s) of equity or debt instruments issued by Tenant, or other transfers of publicly traded capital stock or debt instruments shall not constitute a voluntary assignment and shall not require City's consent or approval. The phrase "controlling percentage" means the s-2o ownership of, or the right to vote, stock possession of at least fifty percent (50%) of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors, except for ownership of publicly traded shares, warrants or similar equity interests in Tenant traded on a national exchange or over-the-counter markets. 14.2 Exceptions. Notwithstanding the foregoing paragraphs or anything to the contrary contained herein, City's consent shall not be required for an assignment or subletting to an Affiliate, Subsidiary, or Successor of Tenant. For purposes hereof, an "Affiliate", a "Subsidiary", and a "Successor' of Tenant are defined as follows: (a) an "Affiliate" is any corporation or other entity which directly or indirectly controls or is controlled or is under common control with Tenant (for purposes of this Section, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation or other entity, whether through the ownership of voting securities or by contract or otherwise); (b) a "Subsidiary" shall mean any corporation or other entity not less than twenty-five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Tenant and which is at least as creditworthy as Tenant; and (c) a "Successor' shall mean a corporation or other entity in which or with which Tenant is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations or a corporation or other entity acquiring a substantial portion of the property and assets of Tenant. 14.3 Continuing Effect. City's consent to any assignment or encumbrance shall not relieve Tenant from its obligations or liabilities under this Agreement nor act as a waiver of the requirement that such consent be obtained to any subsequent assignment or encumbrance. 9-21 15. DEFAULT 15.1 Default by Tenant. The occurrence of any one (1) or more of the following events shall constitute a default and material breach of this Agreement by Tenant: (a) The vacating or abandonment of the Premises by Tenant for a period of sixty (60) successive calendar days, without the prior permission of the Authorized City Representative, excluding closures during periods of casualty, condemnation or permitted closures set forth in this Agreement; (b) The failure by Tenant to make any payment of Rent or any other payment required by this Agreement, as and when due, when such failure shall continue for a period of ten (10) calendar days after written notice of default from City to Tenant; (c) Except as specified in Subsection 15.1(b), the failure of Tenant to observe or perform any of the material covenants, conditions or provisions of this Agreement to be observed or performed by Tenant where such failure shall continue for a period of thirty (30) calendar days after written notice thereof from City to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty (30) calendar days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) calendar day period and thereafter diligently prosecutes such cure to completion; (d) The making by Tenant of any general arrangement or assignment for the benefit of creditors; (e) Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) calendar days); (f) The appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this 9-22 Agreement, where such appointment is not discharged within sixty (60) calendar days; and (g) The attachment, execution or the judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Agreement, where such seizure is not discharged within sixty (60) calendar days. 15.2 Remedies. (a) Cumulative Nature of Remedies. If any default by Tenant shall continue without cure as required by this Agreement, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative. (1) Re-entry without Termination. City may re-enter the Premises, and, without terminating this Agreement, re-let all or a portion of the Premises. City may execute any agreements made under this provision in City's name and shall be entitled to all rents from the use, operation, or occupancy of the Premises. Tenant shall nevertheless pay to City on the dates specified in this Agreement the equivalent of all sums required of Tenant under this Agreement, plus City's expenses in conjunction with re-letting, less the proceeds of any re-letting or atonement. No act by or on behalf of City under this provision shall constitute a Termination of this Agreement unless City gives Tenant specific written notice of Termination. (2) City may terminate this Agreement by giving Tenant written notice of Termination with a specified termination date. In the event City terminates this Agreement, City may recover possession of the Premises (which Tenant shall surrender and vacate upon demand) and remove all Persons and property. City shall be entitled to recover the following as damages; (A) The value of any unpaid Rent or other charges that are unpaid at the time of Termination; 9-23 (B) The value of the Rent and other charges that would have accrued after Termination less the amount of Rent and charges the City received or could have received through the exercise of reasonable diligence as of the date of the award; (C) Any other amount necessary to reasonably compensate City for the detriment proximately caused by Tenant's failure to perform its obligations under this Agreement; and (D) At City's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time-to-time by applicable California law. City shall be entitled to interest at the rate of ten percent (10%) per annum on all Rent and other charges from the date due or the date they would have accrued. City shall also be entitled to an award of the costs and expenses incurred by City in maintaining or preserving the Premises after default, preparing the Premises for re- letting, or repairing any damage caused by an act or omission of Tenant. (3) Use of Tenant's Personal Property. City may use Tenant's personal property and trade fixtures located on the Premises or any of such property and fixtures without compensation or liability to Tenant for use or damage. In the alternative City may store the property and fixtures at the cost of Tenant. City shall not operate the Credit Union in any manner tending to indicate that the Credit Union is affiliated with, part of or operated in conjunction with Tenant's business. (b) City's Right to Cure Tenant's Default. Upon continuance of any material default beyond applicable notice and cure periods, City may, but is not obligated to, cure the default at Tenant's cost. If City pays any money or performs any act required of, but not paid or performed by, Tenant after notice, the payment and/or the reasonable cost of performance shall be due as additional Rent not later than five (5) calendar days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any 9-24 remedy for default or render City liable for any loss or damage resulting from performance. 16. WASTE OR NUISANCE. Tenant shall not commit or permit the commission of any waste on the Premises. Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of the California Civil Code on the Premises. Tenant shall not use or permit the use of the Premises for any unlawful purpose. 17. NO CONFLICTS OF USE, HAZARDOUS MATERIALS. City represents and warrants that, to the best of City's knowledge, (i) Tenant's use of the Premises does not conflict with applicable Laws, and City knows of no reason why Tenant would be unable to obtain all required permits, licenses and approvals from the appropriate governmental authorities; (ii) the Project is not in violation of any environmental laws, rules or regulations and Tenant's contemplated uses will not cause any such violation; and (iii) the Project is free of any and all Hazardous Materials as of the date of this Agreement. In the event that the presence of any Hazardous Materials not caused by Tenant is detected at the Project at any time during the Term of this Agreement and any Option Term, City shall promptly provide notice to Tenant and all remedial work shall be performed by City at City's expense. Tenant's obligation to open shall be delayed until the remedial work is completed if the remedial work is performed prior to Tenant opening for business. Tenant's obligation to pay Rent shall be abated in direct proportion to the extent Tenant is unable to conduct its business upon the Premises as a result of any remedial work that is performed subsequent to Tenant opening for business. Tenant shall have the right (but not the obligation) to terminate this Agreement, upon thirty (30) calendar days advance written notice to City in the event that Hazardous Materials are detected at the Project and the presence or the 9-25 remediation materially affects Tenant's ability to conduct its business in the Premises. "Hazardous Materials" shall mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous substances", "hazardous wastes", "hazardous materials' or "toxic substances" under applicable federal, state and local laws, ordinances and regulations. 18. CITY'S DEFAULTS/TENANT'S REMEDIES. City shall be in default if it fails to perform, or commence performance if the obligation requires more than ten (10) calendar days to complete, any material obligation within ten (10) calendar days after receipt of written notice by Tenant to City specifying the nature of such default. City shall also be in default if it commences performance within ten (10) calendar days but fails to diligently complete performance. In the event of City's default, Tenant may: (a) Upon five (5) calendar days written notice to City, cure any such default, and City shall reimburse Tenant the amount of all costs and expenses incurred by Tenant in curing the default, together with interest and expenses at the maximum rate then allowed by law; or (b) Terminate this Agreement if City's default materially interferes with Tenant's use of the Premises for its intended purpose and City fails to cure such default within ten (10) calendar days after a second written demand by Tenant in which case Tenant shall have no further or continuing obligations. 19. EVENT OF BANKRUPTCY. (a) If this Agreement is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. or any similar or successor statute ("Bankruptcy Code'), any and all monies or other consideration 9-2s payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to City, shall be and remain the exclusive property of City and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting City's property under this Section not paid or delivered to City shall be held in trust for the benefit of City and be promptly paid or delivered to City. (b) Any person or entity to which this Agreement is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Agreement on and after the date of such assignment, including the obligation to operate the business which Tenant is required to operate under this Agreement. 20. NOTICES. Any notice, demand, request, consent, approval or communication that either party desires or is required to give shall be in writing and shall be deemed given three (3) calendar days after deposit into the United States registered mail, postage prepaid, by registered or certified mail, return receipt requested. Unless notice of a different address has been given in accordance with this Section, all notices shall be addressed as follows: If to City, to: CITY OF NEWPORT BEACH Attn: Real Property Administrator 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92658 (949) 644-3236 If to Tenant, to: Credit Union of Southern California Attn: Dave Gunderson P.O. Box 200 Whittier, CA 90608-0200 (562) 698-8326 9-27 21. SURRENDER OF PREMISES. At the Expiration or earlier Termination of this Agreement, Tenant shall surrender to City the possession of the Premises. Tenant shall leave the surrendered Premises, required personal property, equipment and fixtures, in good and broom-clean condition, reasonable wear and tear excepted. All property that Tenant is not required to surrender, but that Tenant does abandon shall, at City's election, become City's property at Expiration or Termination. City shall owe no compensation to Tenant for any personal property, equipment or fixtures left at the Premises by Tenant at the Expiration or Termination of this Agreement. 22. COMPLIANCE WITH ALL LAWS. Tenant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Tenant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the City Manager or his/her designee. 23. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by 9-2s the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 24. SEVERABILITY. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 25. APPLICABLE LAW. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 26. ENTIRE AGREEMENT; AMENDMENTS. 26.1 The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire agreement of the parties with respect to the subject matter of this Agreement. 26.2 This Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between Tenant and City. 26.3 No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. 26.4 The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Tenant and the City Manager or his/her designee. 9-2s 26.5 If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 26.6 Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 26.7 Each party has relied on its own inspection of the Premises and examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and covenants in this Agreement. The failure or refusal of either party to inspect the Premises, to read this Agreement or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 27. TIME IS OF THE ESSENCE. Time is of the essence for this Agreement. 28. SUCCESSORS. Subject to the provisions of this Agreement on assignment and subletting, each and all of the covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, and personal representatives of the respective parties. It is expressly understood and agreed that, notwithstanding anything to the contrary in this Agreement, and notwithstanding any applicable Law to the contrary, the obligations of Tenant under this Agreement do not constitute personal obligations of the directors, volunteers, employees, officers or members of Tenant, and City will not seek recourse against the individual directors, volunteers, employees, officers or members of Tenant or any of 9-30 their personal assets for satisfaction of any liability of Tenant in respect to this Agreement unless authorized by law. 29. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 30. TABLE OF CONTENTS; HEADINGS The table of contents of this Agreement and the captions of the various sections of this Agreement are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 31. GENDER; NUMBER The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the neuter, and each includes corporation, partnership, or other legal entity whenever the context requires. The singular number includes the plural whenever the context so requires. 32. EXHIBITS All exhibits to which reference is made in this Agreement are incorporated by reference. Any reference to "this Agreement' includes matters incorporated by reference. 33. CITY BUSINESS LICENSE Tenant shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 9-31 34. COSTS AND ATTORNEYS FEES The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 35. NONDISCRIMINATION Tenant represents that it is an equal opportunity employer and agrees that in the performance under this Agreement, it shall not, discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. [SIGNATURES ON NEXT PAGE] 9-32 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, THE CITY ATTORNEY'S OFFICE a California municipal corporation Date: 9 I } I ' Date: By: I �e By: Aaron C. Harp q David Kiff City Attorney City Manager ATTEST: TENANT: CREDIT UNION OF Date: SOUTHERN CALIFORNIA, a California corporation Date: By: By: Leilani I. Brown Dave Gunderson City Clerk President/CEO Date: By: Peter Putnam Chief Financial Officer Attachments: Exhibit A - Depiction of Premises Exhibit B - Loading Zone, Common Areas, Restrooms Exhibit C - Additional Equipment Exhibit D - Special Use Restrictions Exhibit E - Insurance Requirements Exhibit F - Memorandum of Lease [END OF SIGNATURES] 9-33 EXHIBIT "A" Depiction of Premises 9-34 lit - s'b�jY'"�j" �y�• r F ' t �r 'fit' 4 �'��/ }� p'- ar1.u'�'v}'"''�R��`+ ,�, �. �ji`;$rt��`K'd�"�q i�,T'y��'\ gy �a .. ,e/z� o',� 4 `. .xF' s� r W. ,Yu•}i' 3 1, Ts�"}+�yy� "r .. lIM ,✓ry� 'i"3 9 'tf1�^i4 L E r� a3�^ tl =� !ri h �G'"u1� �Y• i h !+ ^ ,,4 %���rry^sn " K � F � I Lri- rr 1.>•- � �a� �11'rh�� ". gud,i 5 t � ��(�� r r � }, �, � r -4 21 or � .r ,y� -K •1 - • � �,�,4i ; 7 s �� k Y�al i i4,Y� �Ftl" ` � t dWi," 'S`�� art .�• r�;y':ri i r k+� � � sr '' w ,+ �''t! 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L99 � • /i l ([�� y � yybYYir3 Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided,however,The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to 2gwvoRr any results obtained in its use. 0 100 200 Imagery: 2009-2013 photos provided by Eagle r - Feet Imaging ww•.v.eagleaerial.com CSG ro n?�r� 8!512015 9-37 7 &HtH H:-ELE aH, SiEnFi�-'j lCredit Union Premises 00i J. A ......... j z, -El II A MEN kAe 1p, 7 ---------------------------- 9-38 EXHIBIT "B" Loading Zone, Common Areas, Restrooms 9-39 Exhibit B oZE � 1 au y� � r 110 1 � • :, � r 1 ",f i 1 1 9 k ��� + kl a •_•_ L L� ..k .C4 J� ..O } 'k J :J:'t.. f 3�!) r , r - e: �• t .il:l ry . .. � �. .�... I(i164 a k , S l!R ,I ae u'iF 'g _ 9 9-40 Exhibit "C" Tenant Equipment List 'Equipment- rQuantity Cost Network Router 1 $4,300.00 Network Switch 1 $7,500.00 Network Accelerator 1 $5,000.00 Teller Workstation PCs 3 $1,500.00 Desk Phones 3 $750.00 Receipt Printers 3 $1,200.00 Check Endorsers 3 $1,000.00 Printer Servers 3 $900.00 Laser Printers 2 $1,500.00 Signature Pads 3 $1,500.00 Monitors 4 $700.00 Manager Workstation PC 1 $1,000.00 Network Cabling N/A $6,000.00 ATM 1 $65,000.00 Cash Recyclers 2 $90,000.00 Video System 1 $8,205.00 Alarm System 1 $6,944.00 9-41 I Exhibit "D" See attached special use restrictions document. 9-42 1 �BSon Sxotdod Hail To: pow a-RaMnW + �#71R M 'TBR I&VIH6 COMANY 550 Hevport Cantor Drive aw MAY 8I a�1Of Banport Boacb, CA 92660 All. WCW ec" n�f,.r - �1 �Znge Coin. D.r.r. S .O av- , SIAF 6 AttootLon: Ine Milligan 4f+• �•"�+�G� SAF 6 flDE-6 � p Space abave thin liar for Recordar'a me b� I � ®9 LD 0 j DECLARATION OF SPECIN. LAND USE RFSTRICIICNS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE I • I I II 9-43 Li Q • TABLE OF CONTENTS DECLARATION OF SPECIAL LAND USE RESTRICTIONS, ..�" RICER' OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE gaA ARTICLE 1. GENERAL PROVISIONS. . . . . . . . . . . . 1 BY�tl 1.1 Grantee'a Representation and Varrantien. . . . . . . . 1 a 1.2 Statement of Declarant's General Purposes. . . . . . . . 2 1.3 Definitions. . . . . . . . . . . . 2 (e.) 'Benefitted Property` . . . . . . . . . . . . . . 2 (b) -Center• . . . . . . . . . . . . . . . . . . . . . 2 0 (c) 'Declarant• . . . . . . . . . . . . . . . . . . . 2 (d) `Effective Date° . . . . . . . . . . . . . . . . . 2 (e) -Final Map' . . . . . . . . . . . . . . . . . . . 2 (f) -Grantee* . . . . . . . . . . . . . . . . . 2 B (g) The `Grose Floor Arca• . . . . . . . . . . . . . . 3 a� ARTICLE 2. SPECIFIC RESTRICTIONS. . . . . . . . . . . . . . . . . . . . 3 2.1 Specific Facilities. . . . . . . . . . . . . . . . . 3 (a) Improvement and Continued Use. . . . . . . . . . . 3 a (b) Construction. . . . . . . . . . . . . 3 0 (c) Commencement and Completion. . . . . . . . . . . . 3 (d) Grading. . . . . . . . . . . . . . . 4 (e) Utilities, Streets and Public Ioprovementa. 4 (f) Landscaping. . . . . . . . 4 (g) Alterations and Additions. . . . . . . . . . . . . 4 2.2 Declarant's Approvals. . . . . . . . . . . . . . . . 4 (a) Approvals Required. . . . . . . . . . . . . . . . 4 (b) Tine for Approvals. . . . . . . . . . . 4 (c) As Built Plans. . . . . . . . . . . . . . . . . . 5 2.3 Grantee's Cost. . . . . . . . . . . . . . . 5 2.4 Fulfillment of Hap Conditions. . . . . . . . . . . . . . 5 2.5 Compliance With Lay. . . . . . . . . . . . . . . . . 5 (a) Grantee to Comply. . . . . . . . . . . . . . 5 (b) Approvals of Applications. . . . . . . . . . . . . 5 2.6 Bonds. . . . . . . . . . . . . . . . . . . . . . . . . . 6 2.7 Transfers. . . . . . . . . . . . . . . 6 (a) Transfers Prohibited. . . . . . . . . . . . . . . 6 (b) Permitted Transfers. . . . . 6 2.8 Subordination or Consent to Transfer for Public Financing. . . . . . . . . . . . . . . . . . . . . . 6 (a) Copy of Loan Documents. . . . . . . . . . . . . . 7 (b) Title Report. . . . . . . . . . . . . . 7 (c) Disbursement Instruction. . . . . . . . . . . . . 7 (d) Request for Notice of Default. . . . . . . . . . . 7 2.9 Costs of Regional Development. . . . . . . . . . 7 2.10 MacArthur Boulevard Dedication and Maintenance. 7 ARTICLE 3. GENERAL RESTRICTIONS. . . . . . . . . . . . . . . 8 3.1 Unapproved Development of Use. . . . . . . . . . . . . . 8 3.2 General Mint ananc.. . . . . . . . . . . . . . . . . . . 8 3.3 Resterat Lon. . . . . . . . . . . . . . . . . . . . . . 8 3.4 Drainage. . . . . . . . . . . . . . . . . . . . . . . 8 3.5 Signs. . . . . . . . . . . . . . . . . . . . . . . . 8 3.6 Prohibited Operations anti Uses. . . . . . . . . . . . . 8 3.7 No SubdLv Lsion. . . . . . . . . . . . . . . . . . . . . 9 3.8 Zoning. . . . . . . . . . . . . . . . . . . . . . . . . 9 3.9 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE 4. DECLARANT'S RIGHT OF FIRST REIUSAL. . . . . . . . . . . . . . 10 ARTICLE 5. REMEDIES. . . . . . . . . . . . . . . . . 11 5.1 Default and Ceneral Ramedle.. . . . . . . . . . . . . . 11 (a) Donegan. . . . . . . . . . . . . . . . . . . . 11 (b) Equity. . . . . . . . . . . . . . . . . . . . . . 11 5.2 Inspection. . . . . . . . . . . . . . . 11 I 5.3 OptLon to Repurchase the Land. . . . . . . . . . . . . . 11 (a) Grant of Option. . . . . . . . . . . . 11 (b) Exercise of Repurchase Optlen. . . . . . . . . . . 12 (c) Expiration and Quitclaim. . . . . . . . . . . 12 9-44 (d) Repurcbaso Price. . . . . . . . . . . . . . . . . 12 (a) Rap=chase Escrow Torre,. . . . . . . . . . . . . . 13 (f) Irrevocability. . . . . . . . . . . . . . 13 (g) Warranties, Plan- and Specifications. 13 5.4 Arbitration Procedure. . . . . . . . . . . . . . . . . . 14 5.5 Waiver. . . . . . . . . . . . . . . . . . . . . . . . 14 n 5.6 Conte of Enforc e:me at. . . . . . . . . . . . . . . . . . 15 U 5.7 Rights of Landers. . . . . . . . . . . . . . . . . . . . 15 5.8 AAvezc6a. . . . . . . . . . . . . . . . . . . . . . . . 15 p g8 ARTICLE 6. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . is 6.1 Ummvoidablc Delay. . . . . . . . . . . . . . . . . . . . 15 6.2 Continuous Operations. . . . . . . . . . . . . . . . . 16 6.3 Covenants to Run With the Land; Term. . . . . . . . . . 16 (a) Covenants to Run With the Land. . . . . . . . . . 16 (b) Term. . . . . . . . . . . . . . . . . . . . . . . 16 6.4 Assignment by Declarant. . . . . . . . . . . . . . . . . 16 6.5 Amendments. . . . . . . . . . . . . . . . . . . . . . . 16 6.6 Release. . . . . . . . . . . . . . . . . . . . . . . . . 16 (n) Release by Declarant. . . . . . . . . . . . . . 16 (b) Not Applicable to Declarant. . . . . . . . . . . . 16 6.7 Notice. . . . . . . . . . . . . . . . . . . . . . . . . 17 6.8 Governing Lav. . . . . . . . . . . . . . . . . . . . . . 17 6.9 Severability. . . . . . . . . . . . . . . . . . . . . . 17 6.10 Captious. . . . . . . . . . . . . . . . . . . . . . . . 17 6.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . 17 6.12 Candor and Number. . . . . . . . . . . . . . . . . . . . 17 6.13 Time of the Essence. . . . . . . . . . . . . . . . . . . 17 II IL 9-45 YAXE OF EXHIBM Property DoncriptLon.................... Specific pncilitien........... .......... 2 Subordimtlon Agra a nt................. 3 DggB a o �v D I {I E' 'I I' lli 9-46 I • I DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL. MORTGAGE LIEN AND OPTION TO REPURCHASE ! THIS DECLARATION (-Declaration') is made as of March 11, 1992, by and between THE IRVINE COMPANY, a Michigan corporation ('Declarant-), and the CITY pp OF NEWPORT BEACH, a California municipal corporation (-Grantee-), with reference p to the following facts: ®� A. Grantee and Declarant have entered into an Exchange Agreement and a Escrow Instructions (the -Exchange Agreement') by which Grantee is acquiring from Declarane the following described real property (the 'Exchange Land') situated In the City of Newport Beach, County of Orange, State of California: The southwesterly one-half of Parcel 2 as shown on Parcel Map No. e 90-361, recorded in Book 270 , Pages 15 to 18 , inclusive, of _8 Parcel Maps, Records of avid County. B. Grantee and Declarant have also entered Into a Transfer Agreement and Escrow Instructions by which Grantee is acquiring from Declarant real property adjacent to and contiguous with the Exchange Land which real property is situated ! in the City of Newport Beach, County of Orange. State of California (-Transfer Land') and is described as follows: The northeasterly one-half of Parcel 2 as shown on Parcel Map No. 90-361, recorded in Book 270, Pages 15 to 18—, inclusive, of Parcel Maps, Records of said County. C. In connection with such acquisltlon, Grantee has represented to Declarant that It has acquired the Exchange Land and the Transfer Land as a single parcel described as all of Parcel 2 as shown on side Parcel Map No. 90-361 ! j (the "Land") to improve and use the Fond in accordance with the covenants, conditions, rights, restrictions and limitations as particularly set forth herein (collectively referred to as the 'Restrictians'), and Declarant is granting the Land to Grantee on the basis of Grantee's continuing compliance with such Restrictions. NOW, THEREFORE, in consideration of the foregoing (including the conveyance of the Land by Declarant to Grantee), and ocher good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ! ARTICLE 1. CE14ERAL PROVISIONS. 1.1 Grantee's Representations and Warranties, GRANTEE REPRESENTS AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SAME IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND FOR THE PARTICULAR USES AND PURPOSES AUTHORIZED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT: (a) GRANTEE IS EXPERIENCED AND KNDWLE.DGFABLE IN THE CONSTRUCTION AND OPERATION OF PUBLIC FACILITIES, AND DECLARANT AND GRANTEE DESIRE TO PROVIDE A PUBLIC LIBRARY TO SERVE NEWPORT BEACH; (b) DECLARANT HAS CONVEYED AND GRANTEE HAS i ACCEPTED FEE TITLE TO THE LAND FOR DSE DY GRANTEE IN ACCORDANCE WITH THE PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DECLARANT AND GRANTEE DO i NOT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PERMITTED HEREIN; (d) THE LIKELIIIOOD THAT ANY BREACH WILL OCCUR AND THAT DECLARANT WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (e) WITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOSES AND ELPECTATIONS OF DECIARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE DEFEATED; (f) BUT FOR CONVEYANCE OF THE LAND, GRANTEE WOULD BE REQUIRED TO PAY SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE ESTABLISHED THE FAIR MARKET VALUE OF THE LAND FOR PURPOSES OF THE OPTION TO REPURCHASE BASEL' UPON PRESENT ESTIMATES AND HAVE APPLIED ADJUSTMENT FACTORS TO j TAKE INTO ACCOUNT SUBSEQUENT CHANCES IN VALUES; (h) DECLARANT AND GRANTEE ACKNOWLEDGE T:IAT MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR LESSER THAN THE VALUE ESTABLISHED FOR PURPOSES OF THE OPTION TO REPURCHASE AND HEREBY ASSUME THAT RISK. j 9-47 i BUT FOR SUCH REPRESENTATIONS BY GR.AMM. AND GRANTEE'S UNIQUE SKILLS, i EXPERTISE AND SUITABILITY IN CONSTRUCTION AND OPERATION OF THE SPECIFIC _ FACILITIES DESCRIBED BEIAV, DECLARANT WOULD NOT HAVE CONVEYED THE LAND TO ' GRANTEE, BUT WOULD HAVE RETAINED THE BENEFITS OF OWNERSHIP, INCLUDING FUTURE '• APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES, DECLARANT HAS CONVEYED THE LAND TO GRANTEE. 8�1.2 Statement of Declarnnt'e General Purooses. Declarant 1a the i ower of a large and unique landholding, port of which has been developed as; a e� water planned busineao, recreational, hotel, residenelal and retail Center, a described below, in the City of Newport Beach (the 'City-). Among the distinguishing characteristics of this masterplanned Center are the clear delineation of use areas throughout the Center, together with the strict exercise of architectural and occupancy controls over individual construction projects, no as to ensure the harmonious growth end development of the Center and the maximization of the value of Declarant's developed and undeveloped landholdings an well an the Land itself. �® In addition to those general concerns, it is vitally important to etl Deelarant that the intensity of development shell be limited an those parcels of property (including the Land) that Declarant from tine to time elects to convey to third parties. Should the development limitations imposed by Declarant be exceeded, the roadways and the infrastructure lapravements nervicing the Center and its environs could be overutilized, resulting in undesirable traffic congestion and imbalances within the Center. Such conditions could in turn adversely affect the ability of Declarant to develop, own, operate, lease or sell its landownings, including without limitation the "Benefitted Property" as defined below. It is CD promote these purposes that this Declaration is =do, and It is the Intention of the parties that it will be in furtherance of said purposes that the Restrictions, and all other declarations supplemental hereto, .ill be understood and construed. 1.3 Doflniciens. As used herein, the folloving terms shall have the meanings given to them below: (a) 'Benefitted Property" shall mean the real property to which the benefit of the provisions of this Declaration Inures, and as of the execution of this Declaration shall mean the real property described an E IIOIT vi 1 attached hereto, Declarant shall have the right by a duly recorded amendment hereto executed solely by Declarant to substitute for or add to the Benefitted I Property any real property owned by Declarant in the County of Orange, California. The Benefitted Property shall be the dominant tenement and the Lend shall be the servient tenement for purposes of this Declaration. (b) "Cancer` shall mean the office, hotel, recreational, - recall and residential and other use area commonly known as Newport Center - (including the shopping center (mown as Fashion Island) and generally lying within the area enclosed by Pacific Coast Highway, MacArthur Boulevard, San Joaquin Hills Road and Jamboree Road. (e) "Declarant' shall mean The Irvine Company as identified j above and its successors, assigns or designees who shall assume the obligation and cc whom The Irvine Company shall speciflcally assign in writing the right to j enforce chose Rea;rlecions, subject to the provisions of the Section entitled I 'Assignment by Declarant." (d) 'Effective Date" of this Declaration shall be the date this Declaration in recorded in the Official Records of Orange County, Cal Lfomia. (e) "Final Map- shall mean the final map covering the Land described as Parcel Map No. 90-361 as shown on a map recorded in Book 710 , Pages 15 to la , inclusive, of Parcel Haps, Records of Orange County, California. (f) "Grantee• shall mean the Crancea identified above and each and every suc:essor, assignee, owner, losses, licensee or other occupant of the I� Land, the Specific Facilities, an defined below, or any portion thereof or incereat therein, and each of them, during their ownership or occupancy thereof. 7 9-48 However, ouch tem shall not include any person having An Interest in all or any portion of the land or Specific Facilities merely An security for the performaoco of an obligation. Without limiting the generality of the foregoing, if Grantee lenses all or Any of I" interest in the Land or the Specific Facilities, both the lessor and leasea. under such lease shall be reapom Lbla as principals (and net sureties) for compliance with all the terns and provisions of thio Declaration. I p p (g) The 'Gross Floor Area- shall man the aggregate number of Vp��2� square feet of floor apace on all floor levels of any building, including mezzaninea, measured from the interior face of all exterior walla. No deductions p or exclusions shall be made by reason of columns, stairs, elevators, escalators, I 9 or other Interior construction or equipment. ARTICLE 2. SPECIFIC RESTRICTIONS. O 2.1 Specific Facilities. �v (a) Improvement and Continued Use. Grantee represents and agrees that Grantee shall cause the land to be improved only with the specific ea7 facilities described on EXHIBIT 2 attached hereto (the 'Specific Facilities') and the other improvements described on EXHIBIT 2 attached hereto (the 'Ocher Improvements') and in full accordance with all of the terms of this Declaration, and that Crantee shall cause the Land, the Specific Facilities And the Other Improvements to be used t,olely for a public library with related parking and no other use, notwithstanding that other uses may be peralcced under applicable ! zoning ordinn,ces, and in full accordance with all of the terms of this Declaration. Use as a public library may include all uses and activities commonly associated with public libraries now and in the future including any tom of information storage and retrieval such as video tapes, books, optical and magnetic disks or other technologies for Information storage and retrieval. Grantee may charge fees, rentals and lace charges for loan or use of information media provided that fees, rentals and charges do not exceed the cost of operation of the public library facility. No portion of the Lind, or any improvements thereon, or any portion thereof, shall be used for retail, commercial, quasi- retail or quasi-commercial facilities that materially compete with the retail end commercial facilities in the Center or otherwise Leproved, developed, used. I operated or maintained with any facilities or for any purpose whatsoever except as set forth above unless expressly approved by Declarant, which approval may be granted or withheld by Declarant in its sole discretion. (b) Construction. Grantee shall Improve the Land with the construction and installation of the Specific Facilities and rhe Ocher Improvements pursuant to the plans and specifications approved by Declarant 1� pursuant to the Exchange Agreement and the Transfer Agreement. If Grantee desires to make any substantial alterations, modifications, addiclons or changes co the exterlor elements of any plans and specifications previously Approved by Declarant, then Grantee shall submit three copies of any Change Order to Declarant for its approval prior to obtaining approval of such Change Order by the governmental entity having Jurisdiction and prior to Incorporating such Change Order In the work. Declarant shall approve or disapprove such Change Order in accordance with the standards and procedures Get forth in Section 2.2. Construction and Installation shall be coavenced and completed within the time periods set forth in the Section below entitled 'Commencement and Completion.' , (c) Caraaencemenc and Completion. Subject to extensions of tine for unavoidable delays as provided under the provision entitled 'Unavoidable/—_ Delay,' (i) within the time period specified on EXHIBIT 2 as the 'Comsencemanr i Date,' measured from and after the Effective Date of chis Declaration, Grantee shall have commenced construction of the Specific Facilities on the land, and (11) within the time specified on EXHIBIT 2 as the 'Completion Date,' measured from and after the Effective Data of thla Declaration. Grantee shall have completed construction of the Specific Fncilitles on the Land In a manner consistent with plans and specifications approved In wrLcing by Declarant pursuant to the Agreement. As used herein, the term 'commenced construction' shall mean the complpelon of substantial grading of the Land and tha pouring of all or a substantial portion of all of the footing. and foundations for the entire Specific Facilities (which need nor necessarily Include the ground floor slabs). Grantee shall be deemed to have 'completed conscructlan' of tha Specific Facilities only at such time as Grantee shall have obtained from the appropriate l l 9-49 gover�nnral entity or agency a valid Cartificats of Use and Occupancy for the Specific Facilities. Grantee shall eoaaesca and comploto eonutruction of the Other Improvenento prior to or contemporaneously with such Specific Facilities. EM. .V p _ ., (d) Gradinr. Prior to rbc co®enceaent of any grading or similar work on the Ind, Grantee shall submit co Declarant for its approval two sets of plana and specifications for grading, terracing and filling of the Land �1 D and for construction of other similar Improvements in, on or about the Ind. ed'pp (a) UeLlitiea. Streets and Public Imarwmm�te. B y (i) Grantee shall ease all necesaary facilities for water, drainage, savage, telephone, electricity, cable televinLon, and other m4 utility service for the Land to be constructed and installed thereon end thereto in the manner and within the tine required by the Exchange Agreement. (ii) In addition to any such facilities constituting a part of the Specific Facilities or the Other Improvements, Grantee ahall D construct and Install or pay for construction and installation of all aereeta, ®� street lights, driveways, curb cuts, entry ways, sidewalks and the like, jperimeter walls and fences, irrigation and drainage systems, landscaping, a —= monument, directional or other signs and all like Lmprovemento on the Land or between the land and adjoining sidewalks or the curbs of adjoining streets, as required by the Exchange Agreement. (f) landsc.a Lng. In addition to the landscaping constituting j a part of the Other Improvements, if any. Grantee shall landscape the Land As necessary to create a first class attractive condition. and In a manner consistent with the existing landscaping in the Center. Grantee shall submit to I� Declarant for its approval two sets of plans and specifications for the landscaping on the land. (g) Alterations and Additions. Grantee shall not make any substantial additions, alterations or other modifications (•alterations') of or to the exterior of the Specific Facilities or any addit Lons, alterations or other modifications to the visible portions of the Other Improvements or other improvements from time to time located on the Land, without the prior written approval of Declarant. Declarant shall approve or disapprove of such alterations in accordance with the standards end procedures set forth in Section 2.2. All such alterations shall be subject to the provisl.ome of Article 2 hereof. If Grantee desires to add additional structures to the Land other than those specified in EXHIBIT 2, then Declarant may impose additional restrictions, covenants and obllgations as a condition to its approval. As used in this Section, tine 'exterior" of the Specific Facilities shall seen all roofs, outside wells and facades, structural foundation•., entrance doors, windows, outside walkways, ramps and other atcessways, and parking facilities. 2.2 Declarant's Approval.. (a) Approvals Required. Except with respect to plana and specifications approved prior to the ranordacfon of this Declaration, no construction, installation or alteration of the Specific Facilities, the Other Improvesents, or any other landscaping, grading or other improvements in, about or on the land shall be commenced unless the concept, plans and specification for the exterior elements of such lmpr.,veucnca have first received the written approval of Declarant exercising its sole and absolute discretion. The improvenents constructed shall comply with the plane and specifications approved by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that the Specific Facilities, the Other Improve'.senta and all other landscaping and improvements on the land shall be designed. constructed and installed to provide for a library with complementary landscap Lng and surrounding improvements which, in the sole discreclon of Declarant, are in harmony with the plan and design of the Center. (b) Time for Approval e. IlecLrMt shall approve or disapprove any plans and specification. delivered to Declarant pursuant to this Article an soon as possible but no longer than thirty (30) working days after receipt of no copies thercef accompanied by such drawings, site plans. elevation,, Artists' conceptions, ampler of materials, models, mock-ups, and color samples an from time to rime required by Declarant to review such plana and specifications. If a 9-50 approved by Declarant, such approval ahmll be andoreod on such plana mad specifications and one set of such doeur-nto bearing Declarant'a approval shall _ be returned to Grantee within such thirty (30) working day period. If Declarant does net approve such plans and specifications. Dcclarant shall notify Creates of its reasons for not approving such plane and specifications and Grantee shall, within forty five (45) working days after receiving notice of Declarent's disapproval, submit new plans and specifications for Declarant's approval. o� ISI .'allure of Declarant to approve or disapprove any plana and specifications within said thirty (30) working day period and Declarant'a continued failure to approve or disapprove for five (5) working days after Grantee's written notice to B a Doclarant that Declarant has felled to approve or disapprove as required herein shall be deemed approval thereof. The approval by Declarant of any plane and specifications pursuant to this Section shall only represent Declaranta' o� ' satisfaction with the plane and specifications as to their general aesthetic a elements. Such approval shall not be deemed to constitute any representation or 9 warranty by Declarant as to the adequacy or sufficiency of such plana and specifications for archLtectural or engineering design or the feasibility or integrity of any grading, landscaping, improvement or construction contemplated thereby for any use or purpose. By approving such plans and spec-'flcations, i Declarant assumes no liability or responsibility therefor or Ear any defect in o any grading, landscaping, improvements or construction made pursuant thereto. awA (c) As guilt Flans. Upon completion of the grading, landscaping and construction of improvements, Grantee shall submit to Declarant two -as built- sepias and a Certificate of Compliance executed by Grantee's state licensed consultant (engineer, architect and/or landscape architect). The Certificate of Compliance shall warrant that the completed grading, landscaping and construction conforms to the plans and specifications therefor approved by Declarant. 2.3 Grantee's Cos c. The Specific Facilities, the Other Improvements, and all other landscaping, grading and other improvements made or constructed in, about or on the Land as contemplated herein shall be constructed, installed and completed at the sole cost and expense of Grantee and without any ' cost, liability or expense to Declarant. i 2.4 Fulfillment of Nay Conditions. Certain map conditions dated November 21, 1991 (copies of which have been provided to Grantee) have been imposed in connection with the approval and recordation of the Final Map- Except as otherwise agreed In writing by Declaranc and Grantee, Grantee shall comply with and/or fulfill all of those duties and obligations imposed by much map conditions on the 'Applicant' and/or 'Subdivider' attributable to Grantee's use or development of the Land, all at Grantee's sole cost and expense. 2.5 Compliance With Ia-. (a) Grantee to Comply. The Specific Facilities, the Other Improvements and all other landscaping, grading and other improvements made or j constructed in, about or on the Land, and the use thereof, shall comply at all times with all public lava, ordinances and regulations applicable thereto. Without limiting the generality of the foregoing, Grantee shall obtain, at its Sole expense, all of its internal and external governmental approvals and permits and approvals of other governmental authors_les with jurisdiction which may from ' time to time be required with respect to thu performance contemplated under this Declaration, including, as applicable end vl thout limitation, appropriate zoning, building permits, permits from the Califorrla Coastal Commission, operating and business licenses and permits and the lika. In obtaining such approvals and permits, Grantee shall prepare, at Its sole expense, as necessary and without limitation, all environmental impact reports, engLncering studies and the like as necessary. (b) Approvals of Applicptionq. All requests or applications, together with all supporting documentation, for governmental approvals or permits which require discretionary action by dlscretlonery bodies of Grantee or on the part of another governmental agency, shall be submitted to and coordinated and approved by Declarant prior to placing such approval on the agenda of Grantee's discretionary body or flling with any other governmental agency. Declarant shall have a period of forty Elva (45) days after receipt to disapprove any requests or applications so submitted by Grancee, and in the event of disapproval shall specify the reasons therefor. Failure Lo disapprove within such forty five (45) 5 9-51 ` day period and Declarant'n continued failure to approve or disapprove for fifteen (15) days after Grantee`s written notice that Daclarant her: failed to approve or - disapprove As required bereunder shall be deemed approval thereof. Grantee shall cavae copies of all written communications betwaen Grantee and other govar o ontal agencies processing such requests or applications to be delivered to Daelarant within five (5) busineaa days after such comunlcotion has boon delivered to the addressee. O� 2.6 Gonda. Before the co®ancamant of any of the work required under this Article 2, Grantee shall furnish to Declarant true copies of any and all labor and material bonds and faithful performance bonds, if any, required of p Grantee by any governmental agency concerning such work. Y v 2.7 Transfer.. � I (a) Transfers Prohibited. For a period of not lees than i twenty-five (25) years after the Effective Data, Grantee shall not Bell, lease, convey, exchange, encumber or otherwise transfer the Land or any portion thereof or facilities thereon, whether by agreement for male or in any other manner ®� (herein collectively referred to as a -transfer-) without first giving Declarant at least sixty (60) days' prior written notice of all terms and conditions of such proposed transfer and the right to either (1) acting reaaonably, approve or disapprove such transfer, (LS) exercise its option to repurchase set forth in Section 5.3 below, or (iii) exercise its right of first refusal set forth in Article 4 below. Declarant in Its sole discretion may within such sixty (60) day period exercise Any such right. Declarant's failure to so act within such sixty (60) day period shall be deemed to constitute approval of the transfer on the terms and conditions proposed by Grantee. Any time after the twenty fifth (25th) anniversary of the Effective Date, Grantee may transfer the Land without Declarant's approval under ch Ls Secclon and wLthouc regard to Declarant's option to repurchase set forth in Section 5.3 below or Declarant's right of first refusal set forth in Article 4 below. Grantee hereby acknowledges that it would I be reasonable and appropriate for Declarant to disapprove a transfer and exercise its option to repurchase and/or right of first refusal if the proposed transferee is not adequately experienced, knowledgeable and financially capable to own and operate a public library. (b) permitted Transfers. Notwithstanding the foregoing, (i) Grantee may transfer the Land to any other governmental or quos L-governmental 1 entity or agency which has as its primary purpose maintenance and operation of public libraries provided such entity shall be subject to all of the provisions of this Declaration or (L1) provided Grantee complies with the provisions of Section 2.8 below, Declarant shall consent to a transfer or encumbrance on the Land made in connection with an Interim or permanent loan or loans or other form of private or public financing (including without limitation bonds, lease revenue obligations or certificates of participation) (`public obligations') made in good faLtb and for value by an institutional lender or by a public obligation, the proceeds of which are used only for the coats and expenses of such public obligations and construction of the Specific Facilities and Other Improvements or refinancing of a construction financing in an amount not to exceed the amount outstanding under the construction financing (collectively, 'Permitted Transfers"). :ase 2.8 Subordination or Gon,:enc to Transfer for Pvblic Finoncina. Subject to the following provisions And the provisions of Section 5.7 hereof, Declarant will either consent to a transfer described in Section 2.7(b) above, without exercise of Declarants right of first refusal contained In Article 4 and the option co repurchase contained In Section 5.3 (collectively, the 'Enforcement Rights-) or Declarent will subrrdinete its Enforcement Rights to any encumbrance referred to In Section 2.7(b) immediately above, (which Section 2.7(b) shall continue in effect even after Section 2.7 no longer has any application to Chls Declaration, for purposes only of describing the transfers and encumbrances co which Declarant will continue to consent or oubordlnace pursuant to this Declaration) provided that the principal amount of such a loan or public obligation does not, in combiMtion with other loans and/or public 1 obligations secured by or affecting the land and/or the improvements constructed thereon do not exceed at any time ninety percent (90D) of the fair market value of the Land and any lmprovemonto thereon, valued taking into account the restrictions contained in this Declaration, and Duch loans end/or public obligations are at commercially reasonable interest rates and otha rw Lae contain 6 1 9-52 1 comszerciall7 reasonable corms and conditions. Grancoe will provLdo Doclaranc w n I with spprai al information from a reputable H.A,I. appraiser, from the Office of _ the Assessor of Orange County or from an institutional lender reasonably satisfactory to Declarant to verify that the total. loan-to-value rate does nor exceed ninaty percent (90%). No foreclosure, trustoe's sale or dead in liou of foreclosure with respect to any such permitted encumbrance or exexciso of any A"D remedy to enforce a public obligation shall be deemed an 'assignment- for tl U ;,urposes of Section 2.7, above. Within ten (10) working days after receipt of U the following item, provided the foregoing requirements have been satisfied and provided there in no default under any provision of this Declaration or under any Uother obligation between Declarant and Grantee relating to the land, Declaranc shall execute, acknowledge and deliver to Grantee a cubcrdinstion last nmanc Ln� UT subatantially the form attached horeto as EXHIBIT 3 or a Consent to trano£nr-. V pursuant to issuance of a public obligation: (a) Cosy of Loan Documenra. A true and complete copy of all instruments executed by Grantee evidencing or securing the issuance of a public _ obligation or loan; anylease, mortgage, deed of trust or other interest or right created to enforce payment of any public obligation which affects the lend must og not secure or relate to any obligation or indebtedness not related to improvement 11 of the Land, and neither the note, the mortgage, deed of trust, lease nor any ell other document or instrument pertaining to a loan or public obligation pertaining to the land shall contain any provision making it a default thereunder if the Q I obligor or any other party defaults in any obligation not related to the acquisition or improvemrae of the Land; i -- (b) Title Report. A preliminary title report dated not I — earlier than fifteen (13) days prior to submitral showing no title exceptions other than those in existence at the time Declarant transferred the Land to Grantee, other utility easements reasonably necessary to serve the Land, and other matters approved by Declarant; (c) Disbursement Instructions, A copy of the executed financing instruments, loan agreement or other agreement pertaining to the , disbursement of funds, which must provide in a manner satisfactory to Declarant I that the funds disbursed thereunder will be used only to purchase or improve and benefit the land, or to refinance original financing made for such purpose (Ln i an amount not to exceed the amount outstanding under the acquisition/construction loan refinanced); and (d) Request for Notice of Default. Unless public obligations are issued whichdo not involve a standard mortgage lien to secure performance Of a note, a copy of a Request for Notice of Default pursuant to Section 2942b of the California Civil Code prepared for execution and acknowledgment by Declarant which, when recorded at Grantee's expense, will entitle Declarant to the notices prescribed by said Section 2942b. If public obligations are issued, then the documentation for such financing shall require delivery of a notice of any default to Declarant prior to exercise of any remedies available upon such default. I 2.9 Costs of Regional Development. Grantee understanda that development of the Specific Facilities on Che Land will be accomplished in conjunction with development of ocher real property in the Center by Declarant other private parties. Grantee hereby agrees to pay its share of infrastructure improvements made on, adjacent and off the situs of the Land. The infrastructure improvements shall include the improvements required to complete the Stems set forth In EXHIBIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedication and Maintenance. Doclarant and Cloy agree that a land area along MacArthur Boulevard shall be designated on the Final Hap to be used exclusively for future expansion of MacArthur Boulevard. Prior to construction of road and ocher improvements for such expansion, Grantee shall not use the area designated for any purpose other than inatallatlon sad maintenance of landscaping. Grantee agrees to install landscaping within such area prior co completion of construction of the Specific Facilities pursuant to plans and opeciflcaclone approved by Daclarenc in accordance with the standards and procedures set forth in Section 2.2 and co naineain such area in a first class condiclon, order and repair at all times prior to co®ancement of construction for expansion of MacArthur Boulevard. 7 9-53 I ARTICLE 3. GERERAL RESTRICTIONS. 3.1 Umyrroved Devolcunant or Una. Unless exprecoly approved by Declarant, which approval my be withheld by Declarant in its solo discretion, Grantee shall not permit the construction, maintntunce, operation or use of any structure or improvements on the Land not in full compliance with all requirements of the law, this Declaration And any other covenanta, conditions and 0� :estrLctions from time to time covering the land. 3.2 General Maintenance. Prior to the eomplation of the Specific Facilities, Grantee shall maintain the Land In a clam, contrary, orderly and , ._ attractive condition, free of weeds, debris and poets. Upon completion of the Specific Facilities an contemplated herein, Grantee shall at all time maintain B -. the Specific Facilities, the Other Improvements and all other iaprovementa from time to time located on the Land. including without limitation the landscaped areae, in first-class condition, order and repair. Grantee shall remove any graffiti on the Improvements, Other Improvements and all other improvemento on the Land within three (3) buninasa days after delivery of notice by Declarent. 3.3 Restoration, if any building or improvement on the Land, or any part thereof, or any landscaping installed upon the Land, shall be deranged or e destroyed by fire or other c""Icy. Grantee shall at its cost and erpenae either (i) repair or restore the same according to the original plans thereof or to such modified plans as shall be previously approved in writing by Declarant as _ provided above, or (it) dunolish such damaged or destroyed improvements and leave the land (or applicable portion thereof) in a clean and safe condition. Such repair, restoration or demolition shall be cemented within one hundred twenty (120) days after the damage or loss occurs and shall be completed with due diligence but not longer than one (1) year after ouch work is comenced. The time periods specified in this subparagraph entitled •Restoration• shall be ' ektended As provided in the Section of this Declaration entitled •Unavoidable Delay.- ! 3.4 Drainage. Grantee shall not drain or discharge water from the Land (including but not limited to rain water and water from landscape sprinkler systems located on the Land) on to adjacent land except as follows: Grantee shall at all times cause the Land to be graded and drained so as to cause the discharge of all water from the land onto the public street adjoining the Land or into an established drainage facility, if any, on or adjacent to the Land ! which has been designed cc accosmodate the water at the rate discharged. 3.5 Signs. Grantee shall not place or use any signs, banners, balloons, displays of other advertising media in, on, about or above the land or on or in any improvements constructed or placed thereon unless it has first obtained the prior written consent of Declarant as to the number, size, location, height, illumination, calor and design of such signs or other media. Declarant shall not unreasonably withhold such approval so long as such signs or other media (a) comply with (L) Declarant'e sign program for the Land, the property surrounding the land and the Benefitted Property, if any, and (it) the stetuten, ordinances or regulations of any governmental entity or agency having jurisdiction thereover including Cranree itself and (b) are In harmony and conformity with the existing or proposed impravaments on or In the vicinity of the Land and with Declarant's general aesthetic and architectural plana and criteria for the Land, the Center and the general area in which the land in located. Except as provided in this Section, no sign, banner, balloon, display ar other advertising media which to visible from adjacent land or any public or private street shall be maintained in, on about or Above the Land or an or In any Improvements constructed or placed thereon. 3.6 Prohibited Operations end Uses. No trailer, temper, bus, _ automobile, motorcycle, boat or other vehic Le or equipment ('vehicle") shall be permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 a.m. No use or operation shall be made, conducted or pamitcad on at with respect cc all or any part of the Land or Improvements thereon which in obnoxious to or out of harmony with the residential and/or coonercial neighborhood in the vicinity of the Land. Included mon& the uses or operations which are prohibited and are deemed to conflict with the ranaonsble standards of appearance and maintenance required hereby, are uses or operations which produce or are accompanied by the following characterlacln. which lint in nor intended to be all inclusive: B 9-54 1 (a) Any public or private mrinsnco; (b) Any vibration, twine, sound or disturbance that is objectionable duo to intermittence, heat, frequency, shrillness or loudness; (e) Any direct lighting which in not shielded and confined within mite boundaries; (d) Any emission of odors, noxious, cauatic or eonoaiva D� matter, whether toxic or nontoxic; (e) Any litter, dust, dirt or ash in excessive quantities; (f) Any use of a structure of a temporary character, trailer, tent, aback, garage, barn or other outbuilding except for such structures maintained on the land during a period permitted for construction or reconstruction of improvements; i (g) Any service, maintansnce, repair or washing of any vehicle on the land at any time except for emergency service necessary to move a vehicle to a maintenance facility off of the Land; �A (h) Any raising, breeding or keeping of animals, livestock or poultry of any kind; (1) Fuel storage of any type; ,1 i (]) Any accumulation of rubbish, crash or garbage. All refuse containers, air conditioning devices, utility areas, storage areas and machinery and equipment shall be prohibited upon the Land unless screened from view from I all adjoining lots and public and private streets; and (k) Any exterior radio antenna, television anceraw, 'C.e.' ' antenna, -satellite dish,' microwave transmitting or receiving antennae or other antenna, transmitting or receiving device of any type unless it is screened from - view from all adjoining lots and public and private streets. Any screen required under this SeccLon shall consist of permanent landscaping and/or improvements in harmony with other landscaping and improvements in the Center and approved in writing by Declarant. The provisions of this Section entitled 'Prohibited Operations and Uses- shall not in any way supersede the other Restrictions. 3.7 No Subdivision. Grantee shall not effect any change or amendment to the Final Nap covering the Land or record any further parcel or final map of the land or any portion thereof or facilities thereon pursuant to the California Subdivision Nap act or any similar lav and/or local ordinances adopted pursuant thereto, or file any tentative maps or applications with respect I thereto with any governmental agency, nor shall Grantee file or record a condominium plan covering the Land or any portion thereof or any improvements r thereon or any applications with respect thereto nor shall Grantee convey a portion consisting of less than all of chi! Land, unless expressly approved by Declarant which approval may be withheld by Declarant In its sole diaeratlon. 3.8 Zonlne. Grantee ahetl roc use or develop or attempt to use or develop the Land or any portion thereof for any purpose other than those purposes expressly allowed under the toning ordinance or ordinances of the govermental entity having zoning jurisdiction over the :-and. Additionally, Grantee shall not at any time change or attempt any change in zoning, or obtain or apply for a conditional use permit, zoning variance or exception or other similar approval with respect to the use or development of the land or any portion thereof not expressly nllownd under such existing zoning ordinance, unless expressly approved by Declarant, which approval may be withheld in its sole itineration. Nocvlthecanding the foregoing, Declarant shall not unrassonably withhold Its consent to Grantee's spplicstlon for such conditional use permit as may be required for development of the Land with the Specific Facilities. Grantee shall obtain beelarent'a consent prior to placing such application an the agenda of Grantee's dl.ecretLonary body or submiatLng any ouch application or related documenta to any other governmental agency and thereafter willsubmit copies of all ouch documents to Declarant for its review and information. 9 , 9-55 3.9 Indemnity. Declarant and Dacloraat'a pant and present employees, officers, directors, oharaholdero, agents and ropreaentativen and its —_ and their respective aucconaoro and aaaigna (collectively, the 'SuBnalcaea') shall not be liable for any lama, danage, injury or claim of any kind or character to any person or property arising from or caused by (a) the improvement, development, maintenunce, use, lease or other conveyanea of rho Land or improvements thereon or airy portion thereof or interest therein, including, 'fichout limitation, any lona, damage, injury or claim arising from or caused by or alleged to Arian from or be caused by (1) any use of the Land or any part thereof, (ii) any dafoct in the danign, eon,truction of, or noterial in any structure or other improvement upon the Land, (iii) Any dafect in or contamination of soil. or in the preparation of soils or in the design and accomplishment of grading, (including the existence of any contaminants or bazardous materials in or on the soil), (Lv) any act or omission of Grantee or d any of its agents, employees, licensees, invitees, or contractors, (v) any accident or casualty on the ]and, (vi) any representations by Grancee or Any of its agents or employees, (v Li) any violation or Alleged violation by Grantee, its p I employees or agents of any lav now or hereafter enacted, (viii) any slope failure p� or subsurface geologic or groundwater condition, (Lx) Any work of design, I ®� construction, engineering or other work with respect to the Land, (x) Any other cause whatsoever in connection, with Grantee's use of the Land or Grantee's 0 performances under this Declaration, or any other agreement with Declarant relating to the Land, or (b) the negligence or willful misconduct of Grantee or its employees or agents in the development, construction, grading or other work performed off the Land by Grantee pursuant to this Declaration, .r (c) the breach by Grantee of any of its obligations under this Declaration. Furthermore, as a ' material part of the consideration of this Declaration. Grantee hereby waives on Its behalf all claims and demands against Declarant for Any ouch loss,rmdamage, II or injury of Grancee, And agrees to indemnify, defend and hold harmless Declarant and its property, and the other Indemnitees from all loss, liability, damage, costs and expenses (including attorneys' fees) arising from or related to Any such loss, damage, injury or claim, whether incurred or made by Grantee or any other person(s). The foregoing waiver and indeamlty shall apply to a claim or action brought by a private party or by a governmental agency or entity under any statute or common law now or hereinafter in effect and is intended to apply with respect to loss, damage, injury or claim arising before or after she lease, sale or other conveyance of any portion or all of the land or any improvements - thereon. With respect to design, construction methods, materials, locations and other matters for which Declarant has given or will give its approval, recommendation or other direction, she focegoing waiver, indemnity and agreement shall apply irrespective of Declarant's approval, recommendation or other direction. Notwithstanding anything to the contrary above, nothing contained in j this Section shall operate to relieve Declarant or the other Indeamitees from any loss, damage, injury or claim ultimately established by a court of competent jurisdiction to have been caused by the sole negligence or willful misconduct of Declarant or the other Indemnitees. Grantee's covenants in this Section arising from or related to acts or occurrences during the time of Grantee's ownership shall survive the lease or other conveyance of all or any part of the land or Improvements thereon and shall be binding on said Grantee (as well as its successors to the Land) until such time as action against the Indemnitees is absolutely barred by an applicable statute of limitations. ARTICLE 4. DECLARAHT'S RIGHT OF FIRST REFUSAL. Except with regard to � 'Permicted Transfers' described in the Section above entitled "Transfers., if, at any time prior to the twenty fifth (25c1,) anniversary of the Effective Date, Grantee shall determine to transfer all or any part of the Land or the improvements thereon or any interest thera'..n (-Interest'), Grantee shall notify Declarant of the price and the terms an which Grantee will be willing to transfer. If Declarant, within sixty (CO) days after receipt of Grantee's notice, indicates in writing its agreement to purchase said Interest for the price and on the terms stated In Grancee'• notice, then Grantee shall transfer and convey the Interest to Declarant for the price and on the terms stated in ' such notice. If Declarant does not indicate its agreement within such sixty (60) day period, then Grantee thereafter shall have the right to transfer And convey the Interest to a third party, bur only for a price not less than the price offered to Declarant and on carve not more favorable then those staged in the J notice. if Grancee does not so erenafer and convey tho Interest within one hundred eighty (180) days after Grant.e'a notice, then any further erannocciona (Including a transaction on the name price and terms previously submitted to IO 9-56 . .._. ._. ..._.�,.,..v sea:en;-�;•nsm�ar..r:?mgakt�,+r,-^e^r..�nrc»r'ram:>�.._s�a.��:c.-:n:m.r, nrvevrr;.,:mm�:.¢..-...moi..... Declarant) shall be dammed A naw dotamination by Grantee to transfer and ccavay I said Intermot, and the provisia s of thin Article shall again ba applicable. ARTICLE S. REMEDIES. (a� •- 5.1 Default and Geryrnl Remedion. In the avast of any broach, 0 U "Solation or failure to perform or satisfy any of the Razertctionu which has =c B� been cured within the applicable cure period am not forth below, Declarant at its sole option and discretion may enforce any ono or more of the following remedies or any other rights or remedies to which Declarant may be entitled by Lav or _ equity, whether or not act forth herein. Unless a cure period is otherwise specifically denignated, a cure period shall commsnco when written notice is given to Grantee of a violation hereunder and shall and cert (10) days thereafter p In the case of a monetary default and thirty (30) days thereafter in the came of 9 a nonmonstary default; prodded, however, that if a nonmonotary default is not reasonably suaceptible to cora promptly within the thirty (30) day period, then _ Grantee shall have a reasonable time to cure the same so long as Grantee has commenced such cure promptly within the thirty (30) day period and thereafter I 0 diligently prosecutes the cure to completion. To the maximun extent allowable by lav, all remedies provided herein or by lav or equity shall be cumulative and I not exclusive; provided, however, that except as provided in the following sentence in the event Declarant elects to exercise any temedy provided for in Section 5.3 hereof based upon a particular violation of the Restrictions, such remedy shall be Declarant's mole and exclusive remedy for such violation of the Restrictions. Notwithstanding the foregoing, Declarant'a remedies for a violation or breach of Section 3.10 (Indemnity) shall be cumulative with and in addition to Its remedies for other violations or breaches under this Declaration. (a) Damneea. Declarant may bring a suit for damages for any compensable breach of or noncompliance with any of the Restrictions, or I declaratory relief to determine the enforceability of any of the Restrictions. (b) Eq-ity. It is recognized that a particular or ongoing violation by Grantee of one or more of the foregoing Restrictions may cause Declarant to suffer material injury or damage not compensable in money damages (including, but not limited to, irreparable effects on the type and quality of _J development on and use of the Benefitted property or portions thereof and/or frustration of Declarant'a purpose for conveyance of the Land to Grantee), and that Declarant shall be entitled to bring an action in equity or otherwise for specific performance to enforce compliance with the Restrictions or an injunction to enjoin the continuance of any such breach or violation thereof, whether or not Declarant exercises any other remedy set forth herein. 5.2 Inspection. Declarant or its authorized representatives may from time to time, at any reasonable hour, enter upon and inspect the Land, site or any portion thereof or Improvements thereon co ascertain compliance with the Restriction:, but without obligation to do so or liability therefor. 5.3 Option to Repurchase the Land. Upon any proposed, attempted or actual 'transfer' in violation of the provisions of Section 2.7 above and, in addition to the foregoing remedies described In Section 5.1, upon any violation of the Restrictions itemized in Sections 2.1(a) ('Improvement and Continued Use') or 2.1(c) ('Commencement and Completion'), Declarant, in its sole option and discretion, shall be entitled to repurchase the Land am provided below. 'I (Declarant shall not be entitled to repo:chase the Land unless a proposed, attempted or actual transfer in violation of Section 2.7 has been initiated, a violation of the restrictions in violation of 2.1(e) has occurred or construction has not been commenced or completed as reglnLred by Section 2.1(e).) (a) Crnnt of Option. Grantee hereby grants to Declarant an exclusive option to purchase the land subject only co: (1) Current taxes not yet delinquent; (11) Matters affeeeing title existing at the Effective Date of chis Declaration, excluding any mortgage, dead of trust or similar -- instrument to which Declarant has subordinacad the Enforcement Right. purauanc to Soccion 2.8 above; 11 I I 9-57 (iii) NatcarD affecting title which aro created, meds, "auand, coe;onted to or roquasted by Doclarant, its succoneeto or "signs, excluding any mcrtgags, dead of trust, any matter related to i"uaneo of any n . public obligation or similar inatrrmeot to which Declarant has comantsd without trJ exercise of the Enforectent Right. or to which Declarant hoe subordinated the Enforcement Rights pursuant to Section 2.8 above; (Lv) Natters ahem an printed exceptions in the standard U form California Land Title Asacclation owner's policy of titla Insurance. U(v) Noninterfaring easements for utilities used in U -- connection with the improvements constructed on the Land. (b) exercise of Repurrhaae Option. Declarantmay exerciso ito Q option to repurchase the land by giving written notice to Grantee of Declar"t'a election to repurchase within (I) sixty (60) days after receipt of Grantee's natice of proposed 'transfer' as provided In Section 2.7 (Transfers) above, (1i) D® within ninety (90) days after Declarant receives actual notice of any transfer or attempted transfer in violation of any provision in Section 2.7, (111) within ®a ninety (90) days commencing thirty (30) days after delivery of notice to Grantee of violation of the Restrictions itemized in Section 2.1(a) if such violation hes continued unabated, or (iv) within one hundred eighty (180) days of the 8 respective commencement or completion dates (as such dates may be extended pursuant to the terms of this Declaration) in the event of Grantee's violation of Section 2.1(c) above. For purposes of this Section 5.3, Declarant's actual notice shall mean notice eo the person to wham notice may be addressed under iSection 6.7 of this Declaration, and no other persons. No failure of Declarant to exercise its option upon Grantee's failure to commence construction as provided above shall constitute a waiver of its right cc exercise the option upon Grantee's failure to complete construction by the appropriate date, as described above. No failure of Declarant to exercise ins option in the event of any proposed, attempted or actual 'transfer' (whether approved by Deelarsnt or not) in violation of Section 2.7 above shall constitute a waiver of Declarant's rights to exercise the option upon any such transfer subject to Section 2.7 which might i be proposed, attempted or consummated at a later time. No failure of Declarant to deliver a notice of violation of the Restrictions contained in Section 2.1(a) shall constitute a waiver of Declarant's rights to deliver such notice at any time and exercise the option. Rescission of any notice of violation of the Restrictions itemized in Section 2.1(a) prior cc the option becoming exercisable, or If such violation is cured, after the option becoming exercisable shall nor constitute waiver of Declarant's right to later notify Grantee of a new violation and exercise the option. Any rescission of notice of exercise of thin option shall not constitute waiver of Declarent's right to exercise the option again If a later event causes the option to become exercisable. (c) Exe Lration and Quitclaim. Unless exercised by Declarant, this option shall expire upon the twenty fifth (25th) anniversary of the Effective Dace. After expiration and upon written request therefor by Grmncee, Declarant shall execute and deliver to Grantee a quitclaim deed satisfactory to Declarant relinquishing all of Its rights under the option to repurchase portion of this Declaration. (d) Repurchase Price. DeclarantIspurchase price for the Land upon its exercise of the option provided above, shall be the greater of: (L) An amount including the following: (Al The price attributable to the Land equal to the lesser of (A) $4,400,000 increased or decreased by CPI adj ustuents which .hall be limited to an annualized increase or decrease of five percent (5!) per annua or. (B) the appraised fair narkec value of the Land with the use restricted to the use for which Declar.nt notifies Grantee at the time of exercise of Che option that it intends to use the land. Declarant shall notify Grantee that It usI' intends to use the Land either for commercial office or retail e at the time of delivery of the notice of exercise or any time thereafter (Failure of Declarant to specify a use In conjunction with delivery of a notice of exert tae of the option .hall not invalidate or otherwise affect exercise of the optLo n.). The LPI adjoatment shall be the percentage Increase or decrease in the CPI measured from the month which is two months prior cc the Effective Date to the month which is two months before the date of delivery of the notice of exercise. l2 li �I i 9-58 L$1}&c]@rceat rn?sc-n��sm•Rrvnvpa�+m�mxvr-c.�:-,+.,r—.rn,.+...............�. .__�__._...__._.._. The CPI shall be the Consumer Price Index for All Urban Consumera Looalaa- �B Aanhalm-Riverside Metropolitan Area (all items) compiled by the United States _ Department of labor. Bureau of Labor Statistics, based upon 1982-84 as 100; , . provided, however, that if the CPI is modified or changed, than the CPI shall be a converted or substituted index as determined by Declarant. plus IN The fair market value of the Useable Ot ' Improvements, if any, on the Land at the time the Option is exercised. The -Useable Improvements• shall be limited to those interior areae of buildings p which can be used or converted for use no interior commercial at retail rentable space in accordance with the use which Declarant intends to put the Uaeable Improvements as designated by Declarant. Fair market value of such Uanabla ! Improvements shall be determined using an income method of appraisal based upon B comparable rents determined on a useable square foot basic for the square footage of the Uceable Improvements offset by the cost of any improvements required to 8 convert the use of the building to the use which Declarant notifies Grantee that p it intends to put the Usable Improvements. Less i fen (C] All Costs, expenses, interest, fees, advances I , and other sumo required to be paid by Grantee to Declarant hereunder, to the ce extent not reimbursed to Declarant by Grantee, shall reduce the amount of any v� ! repurchase price cc be paid by Declarant under the terms of the repurchase option contained In this Declaration. Or (ii) The unamortized principal amount, plus interest of, H and expenses (including without limitation costs to redeem and discharge including any call premium provided that aggregate call premiums shall be limited I to five percent (51) of principal) Incurred in connection with, any issue of public obligations where the proceeds have been wood only for coats and expenses related to construction of the Specific Facilities on the Land provided that the original principal amount of such public obligations does not exceed $6,000,000.00 and provided that the amount payable to Grantee under this subparagraph (ii) shall be reduced and offset by any and all funds held for the benefit of any holders of public obligations other than funds held to pay the costs of issuance, if any. i (e) Repurchase Escrow -Terms. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consuamato the purchase as specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preliminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by written notice to Grantee through escrow, shall be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the Land or any portion thereof is encumbered by a mortgage or deed of trust. Declarant may unilacerally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Crancee through the foregoing escrow. Any additional amount necessary to satisfy :such indebtedness shall be paid by Grantee. Grantee and Declarant shall each pay one-half of the escrow fees. Grantee shall pay for documentary tax stamps, for recording the deed, and for a California Land Title Association standard form owner's coverage policy of title insurance In the amount of the purchase mice shoving title to the Lend vested In Declarant or its assigns free and clear of all liens, encumbrances or other title exceptions other than those set forth in this Declaration. Any other conte or expense shall be allocated between t1ui parties in the manner customary in Orange County, California. (f) IrrevocabilL ev. The option created hereby shall be Irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) warranties. Plana end Specifications. In the event Declarant reacquires all or any portion of the Land, the Specific Facilities or the Other Improvements under this Section 5.3, Grantee shall assign and eranafer to Declarant for no additional consideration, ell warranties, plans and specifications relating to the Usable Improvements and any other improvements transferred by Grancee to Declarana hereunder. 13 I 9-59 ..�I,:.FG�tK �ar�:a;+crrr»�ri�r�^:�•.��cr.-::M=.e-�-�:r.-..;..,.�:,:,,..;. •.s.*-�•.,....�........._.._... i �m=aaaarsH•,�ax 5.4 Arbitration Procedurs. if Declarant and Granton aro not able to agree to the fair market value of the Lad or the Dasable Improvemante within thirty (30) days after the data Doclarant gives Crantoo notice of exercise of the option, than the following arbitration procedure shall apply: . � [A) Declarant shall within an additional thirty .'30) days, At Declaranc'n coat, deliver to Crantae a written appraisal of the applicable highest fair market value with which Declarant agrees, prepared by an Y.P independent qualified appraiser (•Daclarant'a Appraisal*). The term 'independent j qualified appraiser- oe used in this Section shall mean a professional �� I independent appraiser who is a Hamber of the American Institute of Real Estate Appraisers (R.H. or h.A.I.), the Sociacy of Real Enters Appreinarn (S.R•A., 3.R.P.A., or S.R.E.A.), the American Society of Apprainers (member or senior 0 membar A.S.A.), or another recognized association of appraisers, or a similar association Of real estate nppralaera that has adopted rules and regulac Lon Q governing the professional conduct and ethics of its nambers requiring independent appraisals without bias to any Party or to Any result, or has such other education and experience so an to be considered qualified by both parties. [D) If Grantee does not agree with Declarant'a m Appraisal, Grantee shall notify Declarant in writing of such diangreenent in B writing within ten (10) days after receipt of Declarant's Appraisal. Within thirty (3D) days of ouch notice. Grantee shall at its cost deliver to Declarant a written appraisal of the applicable highest market value with which Grantee ,. agrees, prepared by an Independent qualified appraiser (•Crantee'a Appralaal'). If Grantee fails to deliver Grantee's Appraisal within the time provided, or if Grantee's Appraisal of fair market value is lower than or equal to that contained in Declarant's Appraisal, then Declarant's Appraisal shall constitute the final and binding determination of the applicable fair market value. [C) If Grantee's Appraisal is delivered to Declarant within the timerovided and is higher, than Declarants p g Appraisal, and if Declarant and Grantee cannot then agree as to the applicable highest fair market value vlchin ten (10) days after delivery of Grantee's Appraisal to Declarant, then Declarant and Grantee shall within ten (10) days thereafter mutually agree on a third independent qualified appraiser acceptable to them to make an independent determination of the applicable highest fair market value (the "Final Appraisal"). Such Final Appraisal shall be delivered to Declarant and Grantee within thirty (30) days of the selection of the third appraiser. If Declarant and Grantee do not agree on a third independent qualified appraiser acceptable to them as specified above, then such third appraiser shall be appointed in accordance with the provisions of California Code of Civil Procedure Section 1281.6, or any successor statute, and in such event the independent determination of the highest fair market value made by the third appraiser no appointed shall be the "Final Appraisal.- If the third appraiser must be appointed pursuant to the provision of the California Code of Civil Procedure Section 1281.6, or any successor statute, Declarant shall file a petition to appoint the third appraiser with the Superior Court of Orange Caunty, California ("Court'), and shall net the hearing on the petition on the earliest date permitted by the Court's calendar and by the applicable notice period required by lay. Declarant And Grantee shall share equally the cost of the Final Appraisal. If the Final Appraisal states a fair market value between that of Declarane's Appraisal and Grantee's Appraisal, the Final Appraisal shall be the final and binding determination of the applicable market value. If the fair market value established In the Final Appraisal is higher Chan (1) the fair I market value established in Cranteo'e Appraisal or is lover than (2) the fair market value established in Declarant's Appraisal, or equal to either, then the final determination of the applicable fair market value shall be (1) or (2) depending upon which one is equal at closer to the fair Parker value established in the Final Appraisal. (D) The procedure act forth above for determining the applicable market value shall be the exclusive procedure therefor and shall i be final, binding and nonappealable unless nxpressly valved by both parties in , writing. It is the responsibility of Cremes to ensure that this procedure for determining highest fair market value Is instituted in sufficient time to satisfy any commitments, agreements or needs of Grantee. 5.5 Waiver. !Io Waiver by Declarant of a breach of any of the Reeericelons by Grantee and no delay or failure to enforce any of the 14 I 9-60 @aotrictlons shall be construed or hold to be a waiver of any ouceaadimg or preceding broach of the same or any other of the Restrictions. No vaivor of arty broach or default of Grantee hereunder shall be implied from any omission by 11]] Declarant to take any astir.. on account of such broach or default if such broach a�7 or default pornieta or is repeated, and no express waiver @hall affect a breach or default other than m specified in said waiver. The consult or approval by 7eclarant to or of any act by Grantee requlring Daclarant's consent or approval shall not be deemed to valve or tender umecesaary, Declarant's convent or approval to or of any subsequent similar acts by Grantee. 5.6 Cop" of Enforcement. In the event any legal or equitable action or proceeding shall be instituted between Declarant and Grantee is enforce any provision of this Declaration, the party prevailing in such action shall be I 0 entitled to recover from the losing party all of its coats, including court coats and reasonable attorneys' fees. Q 5.7 Rights of Lenders. No breach or violation of the Restrictions p shall defeat or render invalid the lien of any mortgage, dead of trust or similar instrument securing a loan made in good faith and for value with respect to the development or permanent financing of the land or any portion thereof; provided, however, that this Declaration and all provLalons hereof shall be binding upon and effective against any subsequent owner or other occupant of the Land or portion thereof whose title is acquired by foreclosure, trustee's sale or dead in lieu of foreclosure but (a) such subsequent owner shall have a reasonable time after acquiring title in which to cure any violations or correct and change arty facts giving rise to Declarant'a rights under thin Declaration occurring prior + to such transfer of title and which are reasonably capable of being cured or II changed provided, that such subsequent owner diligently acts to effect such cure or change (and in the event of such diligent and timely cure, ouch subsequent ! owner shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed), and (b) Sections 5.1(a) (Damages) and 5.3 (Option to Repurchase the Land) shall not be i applicable as to such subsequent owner with regard to any noncurable default occurring prior to the time such subsequent owner acquired title. Notwithstanding the foregoing, any such subsequent owner shall be required to use the Land in accordance with the restrictions set forth in Section 2.1(a) and diligently complete construct Lon of any Specific Facilities and Other Improvements which are incomplete on the date such subsequent owner acquires title, all subject to the requirements contained in this Declaration, except the time periods referred to In Section 2.1(c) shall be reasonably extended. For purposes of this Section, the construction or installation of any improvement in violation of the requirements of this Declaration shall be deemed 'curable' so long as reconstruction, repair or replacement in a manner consistent with the requirements of this Declaration Is physically and legally possible (without respect to cost), 1 5.E Advances. Declarant shall be entitled to advance any son I Declarant In its sole discretion deems necessary to protect and ptenerva the security for its rights and interest under this Declaration (including but not limited to sums for completion of construction of the Specific Facilities or any offsite improvements, any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbrances or liens or other charges on any portion of the Land which appear to be prlo= to Declarant's rights and interest under this Declaration), all of which advances together with Interest at the maximum contract race then permitted by lav shall be paid to Daelarant upon demand. ARTICLE 6. GENERAL PROVISIONS. 6.1 Unavoidable Delay. Any prevention, delay or stoppage In the work of building the Specific Facilities, t:he Other Improvements and any other related improvements or other work an provided for in this Declaration caused by acts of God, war, inability to obtain labor or materials or reasonable substitutes therefor, or other similar matters or causes beyond the reasonable control of Grantee shall extend the time within which this Declaration requires certain acts to be performed For a period or periods equal to any period of such prevention, delay or stoppage, but not to exceed in the aggregate one year; provided, howzver, that nothing in this Section shall excuse the prompt payment of any and all amounts due from Grantee to Declarant es required herein or the performance of any act rendered difficult because of the financial condition of 15 I 9-61 ss` '",r_^" 1.0:?57^•' Grantoo or because of any inability of Grantee to obtain funding from any source. Without limiting the generality of the foregoing, in no Quant shall Cr"teo'o inability to obtain construction or permanent financing for development of the Land, or a portion thereof, constltuto an unavoidable delay pursuant to this Section. Furthermore, in no event shall any extension of any period of time he ' da-mad to have occurred unless Grantee shall have given wrlttan notice to Doclarant within fifteen (15) days following any much delay, setting forth the facts giving rise to much axtennion; and provided further that the period of time for exercisa of Declarant'o rights shall be commensurately extended. 6.2 Continuous Operations. Grantee shall proceed continuously and - diligently in accordance with the terms and conditions of this Declaraclon. In the event Grantee does not proceed continuously and diligently, much failure to I so proceed my, at the option of Declarant, be considered an event of default herein, except as such failure Ss excused by reason of any unavoidable delay " o set forth in the Section hereof entitled 'Unavoidable Delay.. 6.3 Covenants to Run Ylth the Land: Tern. OeyI I �s (a) Covenants to Run With the Lend. The land shell be held, Improved, developed, conveyed, hypothecated, encumbered, leaned, rented, used and �e occupied subject to the Restrictions set forth In this Declaration. The E Restrictions are for the benefit of the Benefitted Property and are intended and shall be construed as covenants and conditions running with and binding the Land ,. and equitable aervitudea upon the land and every part thereof. Furthermore, all and each of the Restrictions shall be binding upon and burden all persons having ! or acquiring any right, title or interest In the Lend, or any part thereof, and their successors and assigns, and shall inure to the benefit of the Benefitted Property and the owners of the Benefftced Property, their successors and"Signa, and shall be enforceable by Declarant and Its successors and assigns, all upon the terms, provisions and conditions set forth herein. i I (b) ice. All of the terms and provisions set forth in chin Declaration shell continue in full force and effect In perpetuity, except that ! Declarant's 'Enforcement Rights' (as described In Section 2.8 above) shall terminate twenty-five (25) years from the Effective Date hereof. (The provisions of this Declaration which shall survive in perpetuity shall include, without limitation Article 1, Sections 2.1 through 2.6, inclusive, 2.9, 2.10. Article 3, Sections 5.1, 5.2, 5.5 through 5.8, inclusive, and this Article 6.) 6.4 Assieament by Declarant. Declarant any assign any of'its rights j and powers under this Declaration to any fee owner of any portion of the Benefitted Property, so long as such person or entity In writing agrees to ass— the duties of Declarant pertaining to the particular rights and powers assigned. .. Upon the recordation of such writing accepting such assignment and "suming such II duties, such person or entity shall, to the extent of such assignment, have the , same rights and powers and be subject to the same obligations and duties as are given to and assumed by Declarant herein. Without limiting the generality of the fereboing, Declarant may make such asaignaent as to the entire Land or to any portion thereof. Unless specifically assigned in writing as stated in chis paragraph, Declarant alone shall have the right to enforce the Reatrictions and _J the other provisions of this Declaration or to recover damages or other amounts far violation of the Restrictions or breach of Grantee's duties hereunder. 6.5 Amendmsncs. Except :.s provided in this Declaration concerning (a) substitution of other real property as the Benefitted Property, (b) release of any portion or all of the land from this Declaration, (c) reacqufeition of the Land by Declarant and (d) assignment by Declarant of Sen rights under this Declaration, this Declaration may be terminated, extended or amended only by a writing executed by Declarant and Grantee and recorded against the Land. , 6.6 Release, (n) Release by Declnren t. Declarant may release any portion of the [and from this Declaration ec any time and for any reason without the approval of Grantee. (b) Not Applicable to Declarant. Notwithstanding anything herein contained to the contrary, if Declarant reacquirea title to the Land or any portion thereof at any time after the date hereof and record(.) a notice of I 16 9-62 termination of then& kostrictiona in the Office of the Canty Recorder of Orange County, California, chase Rsntrictiomn shall coma and terminate and be of na further force or affect u to Declarant and amch property, offeetivs mn of tho , date of each recordation, 6.7 Notice. All notices, remnants, requests, d*marAc and other . coesmicationa provided for heroin shall he in writing and shall be demand to have been duly given if and when personally served or forty eight (48) hours after being sent by United States registered =L1, return receipt requested, postage prepared, to the other party at the following respective addresses: DECLARANT: THE IRVINE COMPANY c/o IRVINE LAND MARACEHM COMPANY v, Poet Office Box I a Newport Beach, California 92658-8904 Attention: Presldant/IIMC GRANTEE: City of Newport Beach Ov 3300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92659-1768 Q P or at such ocher address as Declarant or Grantee may, designate .o the other In writing in accordance vlth the provision of this Section. 6.8 Governing: law, ih la Declaration shell be governed by and construed under the laws of the State of California. 6.9 Severebill ty. In the event that any portion of this Declaration shall become illegal, null or void or against any public policy, for any reason, or shall be hold by any court of competent jurisdiction to be illegal, null or void or against any public policy, the remaining portions of this Declaration j shall not be affected thereby and shall remain in force and effect to the full extent permitted by lay. 6.10 Captions. The captions used herein are for convenience only and are not a part of this Declaration and do not in any way limit or amplify the terms and provisions hereof. 6.11 Entire Agreement. �Thia Declaration,including Exhibits attached hereto which are incorporated herein by this reference, constitutes the encirs agreement between the parties hereto pertaining to the subject meter hereof and all prior and contemporaneous agreements, representations, negotiations and underarandLngs of the parties hereto, oral or wriecen, are hereby superseded and merged herein. The forgoing sentence shell in no way affect the validity of the Agreement pursuant to which Grantee acquired the Land or any instruments executed In connecclon therewith. 6.12 Gender and Number. In this Declaration (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural include one another. 6.13 Ties of the Essence. Tune is of the essence of each provision of this Declaration in which time Is an element. _y 17 9-63 ' IN WITNESS WMHREOP, the undersigned have executed Chia Declaration as of the data vrLtton bolov. -DECLARANT' 'CRARTFE' rJ .• 711E IRVINH COMPANY, CITY OF NEWPORT BEACH, I •a a Michigan corporation a Colifornim amie pal corporation 0n By: -- `��b. � By: p� I mayor Its: Q i V o� By:. ATTEST: g Its: s81 J By: (W u Its: i Clerk (/� APPRD ED By: V = Its: City Manager `T APPRO%%; FORM:By: r Attorney STATE OF CALIFORNIA I C�,,,��J////1llIl�� �� ).us F COUNTY O<' ) O SI On thiaoy&day of in the year 19y,�-before me, the undersigned, a Notary Public d for said State, personally appeared 'f. � aad /�� ;� �C "ter,, personally knavn to m or proved to me on the baa of satisfy to I Ida e) to be the pets ,o executed the vithLn instrumentas ),�e- --Y- aad respectively, on behalf of THE IRVINE COMPANY and acknovledged to me that a corporation executed it. I WITNESS my hand and official seal. OFFICLAL R M BMffNEY .. wBocmii;torics mm CiVJx1E C/JmtiY I� Wt nraaa.a..v� Notary Public In and for said State I I �amau.on 18 9-64 -- -- - STATE OF CALIFORMIA ) •. ) COMM OF ORANGE ) on March 19. 1992, before m, the vaIIrsoigncd, n Hmt.Gry Public in and for the State, porconally appeared Ebil SanrAmm, . known to m to be the Bayer, Rabart L. MM, known to ne to be tha _ City Manger, and 17anda H. Raaaio, known to no to be tho City Q Clark, on behalf of the CITY OF NEMNM BEACH, which executed the .. ._ within inGtr..ment pursuant to gaverning law and a resolution of ito board of directors and acknowledge to = that the CITY OF NEWPORT BRACH executed it. WITNESS my hand and official Hoa � Q- f F[' HEAL - - - - - - - - - - - - - NotaryPublic in qpd for mid state — %wmm CYN am mvmaac-wu ovm ' C}am.aAUm CM" =9n i i 9-65 v v J'; n u B .I 6 6 MIBIT 1 To Declaration of Special Restrictions Legal Description of 'Benefitted property- i 9-66 a�mv"p EXHIBIT "I" LEGAL DESCRIPTION BENEFITED PROPERTY FOR THE i CITY OF NEWPORT BEACH LIBRARY SITE 0� Parcel (500 and 550 Newport Canter Drive and Adjacent Land) B� That portion of Block 93 of Irvine's Subdivision in the City of Newport Beach, -- County of Orange. State of California, as shown on a map filed in Book 1, Page 88 of Miscellaneous Records Naps in the Office of the County Recorder of amid B Orange County, described an follows: BEGINNING at the easterly terminus of that certain course shown as having a bearing end length of 'South 80'14'381 East 91.45 feet" in the northerly right- D® of-way line of San Nicolas Drive on a map of Tract No. 6015, filed in Book 239, Q Pages 28 through 41 of Miscellaneous Maps In said Office of the County Recorder; d thence along said right line and along the easterly right-of-ray line of Newport v� Center Drive East, the southerly right-of-way line of Santa Roan Drive and the southwesterly right-of-way line of San Joaquin Hills Road, all as shown on said map of Tract No. 6015 through the following common; North BD'14'38- Wast 91.45 feet to the beginning of a tangent curve concave northeasterly and having a radius of 25.00 feet; thence along said curve wont.rly and northwesterly 38.16 feet through a central angle of 87'26.49" to a point of reverse curvatura with e curve concave westerly and having a radius of 1670.00 feet, a radial line of said curve from said paint bears North 82'47'49" West; thence along said curve northerly 472.13 feet through a central angle of 16'11'54" to a point of reverse curvature with a curve concave southeasterly and having a radius of 25.00 feet, a radial line of said curve from said point bears North 81'00'17' East; thence along said curve northerly and northeasterly 38.16 feet through a central angle of 87'26'49"; thence tangent from said curve North 78'27'06" East 69.97 fear to the beginning of a tangent curve concave northwesterly and having a radius of i 825.50 feet; thence along said curve northeasterly 444,81 feet through a central - angle of 30'52'23"; thence tangent from said curve North 47'34'43" East 2.20 feet to the beginning of a tangent curve concave southerly and having a radius of 25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through a central angle of 89017'26" to a point of reverse curvature with a curve concave northeasterly and having a radius of 6072.50 feet, a radial line of said curve from said point bears North 46'52'09" Past; thence along said curve southeasterly 329.29 feet through a central angel of 3'06.25"; thence tangent from said curve South 46'14.16" past 31.81 feet to the northerly corner of Parcel 1 as shown on a map filed in Book 13, Page 41 of Parcel Maps in said Office of the County Recorder; thence leaving said southwesterly right-of-way line of San Joaquin Hills Road and along the boundary of said Parcel 1 the following courses: South 44'06'14" West 140.00 feet; thence south 45'53.46' East 183.00 feet to the beginning of a tangent curve concave northerly and having a radius of 25.0D feet; thence along said curve southeasterly and easterly 39.27 fent through a central angle of 90"00'00'; thence tangent from said curve North 44'06.14• East 103.60 H feet to the beginning of a tangent curve concave northwesterly and having a radius of 25.00 feet; thence along said curve northeasterly 13.23 feet through a central angle of 30'19'01' to a non-tangent inceroection with said southwesterly right-of-way of San Joaquin Hills Rood; thence leaving amid boundary and along said right-of-way line South 46'14'16" East 48.72 feet to the northerly corner of Parcel I. as shove on a map filed in Book 21, Page 18 of Parcel Maps in said Office of the county Rceorder, said corner being a point in a non-tangent curve concave southeasterly and having a radius of 25.00 feet, a redial line of said curve from said point beers South 16'06'05' East; thence along the boundary of said Parcel 1 the following courses; along said curve southwesterly 13.00 feet through a centra). angle of 29'47'41'; thence tangent from said curve South 44'06'14' West 104.09 feet to the beginning of a tangent curve concave easterly and having a radius of 25.00 feet; thence along said curve nouthweaterly and southerly 39.27 feet through a central angle of 90'00'00"; thence tangent from said curve South 45'53'46' East 186.00 feet to the westerly corner of Parcel 1 as shown an a map filed in Book 54, Pago 23 of Parcel Maps In said Office of Coancy Recorder; thence leaving the boundary of Parcel 1 as shown rm�eu t nop....- r.tceraar.sn 9-67 •on said nap filed in Book 21, Pago 18 of Parcel Hops and along the boundary of Parcel 1 Be shown on amid nap filed in Book 54, Pago 23 of Parcel Nape South —,- 45'53'46• East 68.09 foot to the beginning of a tangent curve concave =steely qq and having a radius of 40.00 fact; theme continuing along acid boundary cad said d curve southeasterly 36.39 foot through a central angle of 52'07.23' to the northwooterly corner of Parcel 3 me shown on Parcel Hap No. 84-706 filed in Book 192, Pages 1 and 2 of Parcel Napa in said Office of the County Recorder, a radial p S , tine of said curve from said corer bears North 03'46123° Want; theme along the fop boundary of said Parcel 3 and Parcel 2 m shown on said Parcel Nap the following courses: continuing along said curve southerly 26.44 fact through s central U angel of 37'52'37•; thence tangent from said curve South 44'06'14• West 289.00 0 feet to the northeasterly corner of Parcel 1 as shown on a cap filed In &wk 27, Page 43 of Parcel Napa in said Office of the County Recorder, acid corer being I aA the beginning of a curve tangent to last said course, concave northerly and g having a radius of 40.00 feat; thence leaving the boundary of said Parcel 2 and along the boundary of said Parcel 1 the following sources: along said curve southwesterly and westerly 62.83 feet through a central angel of 90'00000'; thence tangent from said curve North 45'53'46• Went 14.11 feet to the beginning ; Y of a tangent curve concave southerly and having a radion of 25.00 feet; theme a along said curve northwesterly and weaterly 39.27 feet through a central angle of 90'00.00•; thence tangent from said curve South 44'06'14• Went 99.44 feet to w8 the beginning of a tangent curve concave southeasterly and having a radius of 25.00 feet; thence along said curve southwesterly 13.46 feet to a non-tangent intersection with the northeasterly right-of-way line of said San Nicolas Drive Be described in a Grant of Easement to the City of Newport Beach recorded in Book I -' 8987, Page 836 of Official Records in said Office of the County Recorder; thence leaving said boundary of Parcel 1 and along said right-of-way line as described in said Grant of Easement and as shown on Bald map of Tract No. 6015 the following courses: North 46'44'00• vent 92.34 feet to the beginning of a tangent curve concave southwesterly and having a radius of 950.50 feet; thence along said curve northwesterly 555.92 feet through a central angle of 33'30838• to the POINT i OF BEGINNING. Parcel 2 (Fashion Island Shopping Center) That portion of Tract 6015• in the City of Newport Beach, County of Orange. State of California, as per map filed in Book 239, pages 28 through 41, Niscellaneoun Naps, records of said County, lying within the following described boundary: Cotisaeneing at the center line intersection of Santa Rosa Drive with Newport Center Drive East ae shown on said map; chance south 78'27.06' West 48.00 feet along the Westerly prolongation of the center line of said Santa Rosa Drive to a paint on a non-tangent curve concave, Westerly and having a radius of 1557.00 feet, said point being the True Point of Beginning, a radial to said point bears North 78'27'06' East, said curve being concentric with the center line of said Newport Center Drive East; thence Southerly 1314.59 feet along said curve through an angle of 48'22'31' to the beginning of a compound curve concave Northerly and having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve through an angle of 110'52'24• to the beginning of a compound curve concave Easterly and having a radius of 1757.00 feet: thence Northerly 1248.07 feet along .. said curve through an angel of 40'41158' to the beginning of a compound curve concave Southerly and having a radius of 897.00 feet; thence Easterly 2438.09 feet along said curve through an angle ol: 155'43'57' to the beginning of a I compound curve concave Westerly and iwvin; a radius of 1557.00 feet; thence Southerly 117.38 feet along said curve through an angle of 4'19'10' to the True Point of Beginning. 1 c.atnu t Lqa o..o rt pa te„ nt •u m.[1 1rtj nsrarws.srL 2 w.' 11.e tau 9-68 0 B� BB . Bo ml b j MIBIT 2 To Declaration of Special Restrictions I i Requiramnta for Specific Facilities i 1- 9-69 1 °o i oe HPQUIRfl@TIS FOR SPECIFIC FACILITIES Description of Specific Facilities: 0 A free public library and related dxivevsys, acceaways and landscaping. _p /r Permitted Use: u Public Library and related parking of private passenger automobiles during the hours from 6:00 a.m, to 11:30 p.m. daily. Naxinum No. of Buildings: 1 Ninimum Grose Floor Area: 10,000 square feet* Naximum Cross Floor Area: 65,00D square feet* ' I Naxictma Floor Area Rada: 50 percent Commencement Date: 12 months from Effective Date Completion Dec.: 16 mantho from Effective Date * By setting forth any required minimum or maximum gross foot area above. Declarant does not thereby represent or warrent that Buyer shall be able to develop the Land for such density. REQUIREMENTS FOR MER L(PROVENINTS Those lmprovenenta required by Exh Fait I to the Exchange Agreement. Opclel WVlttlm• traLlt 1 Op.c l[It Iml LLtlm I 9-70 D� I I� I I / I/ i EXHIBIT 3 To Declaration of Special Eestrictiooa II Subordination Agreeoent I i i � a 9-71 I When Recorded Mail To: THE IRVINE COMPANY ' 550 Newport Canter Drive Newport Beach, CA 92660 Attention: Pros Ldant/IWC I Space above this line for Recorder's use A.P. No. I / O all SUBORDINATION AGREEMENT �v NOTICE; THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS AND INTERESTS AND J YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOUEE PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. I I. PARTIES AND DATE. 9 This Suboc&naclon Agreement ('Agreement") In made this day of 19 by the CITY OF NEWPORT BEACH, a California municipal —' corporation (-Owner-). owner of the "Land" (as defined below), and THE IRVINE COMPANY, a Michigan corporation ('TIC'), declarant under the Declaration (defined below). II. ACKNOWLEDGMENTS II I Owner has executed a Declaration of Special Land Use Restrictions. Right of First Refuaal, Mortgage Lien and Option to Repurchase (the "Declaration') dated , 19_. and recorded on as Instrument No. in the Official Records of Orange County California as an encumbrance on the title of the real property described as: Parcel In the City of Newport Beach, County of Orange, State of California, as shown on a parcel map filed in Boole Pages_ to Inclusive, of Parcel Maps,. in the office of the County Recorder I of Orange County (the 'Land"). Owner has executed, or Is about to execute, certain loan documents ('Loan Documents') dated 19_ with or in favor of (-Lender-) to obtain and evidence a loan (the 'Loan") from Lender in the mount of $ The Loan Documents have all been delivered to TIC and include, without limitation, a Deed of Trusr (the 'Deed of Trust") to be recorded concurrently with Chia Agreement as security for the obligations evidenced by the Loan Documents. Lender is Incurring Its obllgal:Lona in connection with the Loan In good faith and for value pursuant to an agreement with Owner, on which TIC is relying and which is memorialized in the Loan Documents, that the proceed, of the Loan will be expended solely for finnncfn,g or refinancing of contraction of certain improvements on the Land, the plans and specifications for which have been, or will, prior to the commencement of construction, be approved by TIC, all in accordance with the provisions of the Loan Docunonts, and for no other purpose .I unless approved by TIC In writing In its sole discretion. _ A condition precedent to Lender's agreement to make the Loan 1s that the Deed of Trust shall be and remain at ell cimea a lien or charge upon the Land I prior and superior to cerca Ln enforcement right, and remedies of TIC under the Declaration. TIC and Owner agree that lc is to their mutual benefit that Lender make the Loan to Owner. This Agreement in made in consideration of the mutual benefits np•cld a.re IbLL I unmu 2 a.mml".urn an�w.ce u, 1012 9-72 ° to TIC end Dwnur resulting from the loan and for other valuable consideration, the receipt and sufficiency of which in acknowledged by TIC and Oblast. j' - I The Deed of Trust and any renewals or axtoonlona thereof shall be and n remain at all tinea A lien or charge on the Land prior and superior to D S Declarant's right of first refusal contained in Article 4 of the Declaration and �J the option to repurchase contained in Section 5.3 of the Declaration, (collectively, the Enforcement flights'); provided, havevor, that (1) the B� Declaration (including the Enforcement Rights) shall be binding upon and �— effective against any subsequent owner or other occupant of the fond or any portion thereof vhose title is acquired by foreclosure, trustae'm colo, dasd in lieu of foreclosure or otherviae an, provided in Section 5.7 of the Declaration, and (2) any subsequent owner shall have the cure rights as provided in Section q 5.7. Notwithstanding anything to the contrary contained in thin Agreement, 9 Lender's foreclosure or similar or related proceeding under the Deed of Trent p shall not extinguish the Declaration or TIC'° Enforcement Rights, all of which shall survive such proceeding and shall be binding upon any nubacquent owner j —g acquiring titls from Lender as stated above. i IV. HISCEUANEODS ' A. Entire A¢reemenc. d This Agreement shall be the whole and only agreement between TIC and Owner with regard to the subordination of TIC's Enforcement Rights and remedies under the Declaration to the lien or charge of the Deed of Treat. B. Attorneys' Feen. The prevailing party in any litigation respecting this Agreement shall be entitled to reimbursement of attorney's fees and casts, whether or net taxable, incurred in the litigation. i °TIC" OWNER. THE IRVINE COMPANY. CITY OF NEWPORT BEACH i a Michigan corporation i By: By: Its: Ira: Mayor ' By: ATTEST: i Its: By: Its: APPROVED AS TO FORM: By.. Its: City Attorney nmieu m 2 .., .wr 9-73 y� 0 a ° STATE OF CALIFORNIA ) COUM OF ) n On 19 before m, the undersigned, a Notary Public in U and for acid 9tata, peraonally appeared and peroonally known to ne (or proved to = on the baoio of actin£actory evidence) to be the persons who executed the within i B lnatrument ae and on behalf of THE j IRVINE COMPANY, a Michigan corporation, and acknowledged to me that onid o corporation executed it. . ! WITNESS cry hand and official seal. Notary Public in and for said Store Bi pq ' ; V STATE OF CALIFORNIA 1 -- ).ee COUNTY OF ) On 19_. before me, the undersigned, a Notary Public in and for said State, personally appeared i personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Mayor, on behalf of City of Newport Beach, which executed rhe within instrument pursuant to governing law and a resolutLon of its board of directors and acknowledged Co me that the City i of Newport Beach executed it. WITNESS my hand and official seal. it Notary Public in and for said State �i FI i el tmuu y �mwve.ert 7 rumoreym.um 4r.o�u4ya ly, yew 9-74 Exhibit "E" Insurance Requirements Insurance. In addition to insurance required of Tenant to be obtained, provided, and maintained during the construction of the improvements, and without limiting Tenant's indemnification of City, Tenant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. (a) Certificates of Insurance. Tenant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to execution of this Agreement by the City. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. (b) Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. (c) Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. (d) Coverage Requirements. I. Workers' Compensation Coverage. Tenant shall maintain Workers' Compensation Insurance at statutory limits and Employer's Liability Insurance at One Million and 00/100 Dollars ($1,000,000.00) for his or her employees in accordance with the laws of the State of California. Should the Workers' Compensation policy be cancelled before 9-75 the expiration date thereof, notice will be delivered in accordance with the policy provisions... The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for all losses that relate in any way to this Agreement. ii. General Liability Coverage. Tenant shall maintain commercial general liability insurance in an amount not less than Two Million and 00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Products Liability Coverage. Tenant shall maintain products liability insurance covering bodily injury and property damage for all activities of the Tenant arising out of or in connection with products or services sold by the Tenant under this Agreement, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. iv. Automobile Liability Coverage. Tenant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Tenant arising out of or in connection with the services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. 9-76 V. Professional Liability (Errors & Omissions) Insurance. Tenant shall maintain professional liability insurance that covers Tenant and its directors, officers and employees against claims alleging negligent acts or errors or omissions in the rendering of (or failure to render) professional services to third parties, in an amount not less than One Million and 00/100 Dollars ($1,000,000.00) per claim and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. vi. Fidelity Insurance. Tenant shall maintain fidelity insurance that covers protection for Tenant (and their employees) against the dishonest acts of an employee as well as forgery, safe burglary and computer fraud, in the minimum amount of One Million and 00/100 Dollars ($1,000,000.00) per claim and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. vii. Fire and Extended Coverage. Tenant shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs, equipment, personal property and inventory on or upon the Premises from loss or damage in an amount not less than the replacement cost at the time of loss. viii. Tenant shall maintain loss of rent insurance in the amount of $10,500.00, which amount shall be adjusted annually consistent with the rent increase described in Section 4.1 of the Agreement, insuring that the Rent will be paid to City for a period up to six (6) months if the Premises are destroyed or rendered unusable or inaccessible for commercial purposes by a risk insured under a special form property coverage policy including vandalism and malicious mischief endorsements. ix. Reserved. say (e) Endorsements. Each applicable insurance policy shall be endorsed per the following: i. The City, its elected or appointed officers, officials, employees, agents and volunteers, and the State of California, its elected or appointed officers, officials, employees, agents and volunteers, are to be covered as additional insureds, with respect to liability arising out of work performed by or on behalf of the Tenant. (Note: This endorsement applies to the General Liability and Automobile policies only.) ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Tenant's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. (Note: This endorsement applies to the General Liability policy only.) iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (Note: This endorsement applies to the General Liability and Automobile Liability policies only.) iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. (Note: This endorsement applies to the Workers' Compensation, General Liability and Automobile policies only.) V. Reserved. 9-78 vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (ten (10) calendar days written notice of non-payment of premium) written notice has been received by City. (Note: This endorsement applies to all policies except the Workers' Compensation policy. Should the Workers' Compensation policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. (f) Timely Notice of Claims. Tenant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Tenant's performance under this Agreement. (g) Additional Insurance. Tenant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 9-79 Exhibit "F" Memorandum of Lease RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 (Exempt from Recordation Fee - Govt. Code Sec. 6103] MEMORANDUM OF LEASE AGREEMENT WITH OPTIONS FOR RENEWAL This MEMORANDUM OF LEASE Agreement With Options for Renewal ("Memorandum") is dated , 20_, and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City') and Credit Union of Southern California ("Tenant"), a California corporation, concerning the Premises described in Exhibit 'A" attached hereto and by this reference made a part hereof. The term of the Lease is five (5) years, commencing 2015, and ending 2020. Tenant and City may extend the Term of this Agreement for two (2) additional successive terms of five (5) years each. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. [SIGNATURES ON NEXT PAGE] 9-80 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, THE CITY ATTORNEY'S OFFICE a California municipal corporation Date: 9 /S Date: By: C �� By: Aaron C. Harp q1 1 David Kiff City Attorney City Manager ATTEST: TENANT: CREDIT UNION OF Date: SOUTHERN CALIFORNIA, a California corporation Date: By: By: Leilani I. Brown Dave Gunderson City Clerk President/CEO Date: By: Peter Putnam Chief Financial Officer [NOTE: Attach Exhibit A from Agreement as Exhibit to this Memorandum behind attached Notary form] 9-81 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 California ) County of ORANGE ) On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity(ies), and that by his signature on the instrument the person, 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. WITNESS my hand and official seal. (seal) Signature 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 California ) County of ORANGE ) On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person, 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. WITNESS my hand and official seal. (seal) Signature 9-82 This Page Intentially Left Blank 9-83 c . ILI 73 w r - ON 40 41 is _ • yct... T 4 J • •• .I I I I � 11 • • . I. 1 Attachment CC 2 t �, oR • �,' � . 0 p I Public Park � ( pm OtNh ill � OR P. �G ALT AIR OR V N , P CIVIC CENTER 0R C 4 \ Palk City HallJt,P, f � I't'iry0�"� Central Library Pnrkinn Structure _ J bR Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however,The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. ° m 0 417 833 _ Imagery: 2009-2013 photos provided by Eagle Feet Imaging www.eagleaerial.com 8/5/2015 9-85 Attachment CC 2 o�e Library Expansion . i, 000 0 40 i z, d �c . AFS 'azo X Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however,The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to �ia¢"•'PogT any results obtained in its use. 0 100 200 _ Imagery: 2009-2013 photos provided by Eagle Feet Imaging www.eagleaerial.com 8/5/2015 9-86 w Attachment CC 2 -- ----- -- ---------- - --- -- ---- - - - - - -- � g © o\Credit Union Premisesji4— ,I MIN I I � - r- - -- - -- --- -- - - i 9-87 Attachment CC 3 TO: BOARD OF LIBRARY TRUSTEES FROM: Tim Netherton, Library Services Director 949-717-3810,thetherton@newportbeachca.gov PREPARED BY: Tim Netherton, Library Services Director TITLE: Retail Space on the Second Floor Expansion RECCOMMENDATION: Staff requests that the Board of Library Trustees recommend to City Council that the retail space on second floor expansion be leased to the Credit Union of Southern California. At the May 18 meeting, the Board of Library Trustees requested further information regarding the potential leasing of the vacant retail space on the second floor to the Credit Union of Southern California, including information regarding the terms of the lease. In addition, representatives from the City's Community Development Department and Dave Gunderson,the CEO of the Credit Union of Southern California will make a brief presentation and respond to questions. DISCUSSION: The retail space across from Bistro 24 on the second floor expansion has been vacant since the Civic Center opened in May 2013. The space was initially planned to house the Newport Beach City Employees Federal Credit Union,who ultimately opted not to relocate to the Library site. The City's Community Development Department has been approached by a handful of potential lessees, none of whom seemed to be a good fit for the Library. The Board of Library Trustees has always favored a lessee whose operations support the Library's mission; unfortunately,these types of entities lack the financial resources to lease the space. At the March 16 meeting, the Board of Library Trustees approved a plan to use the space as a community gallery managed by staff for the display of art and collections. In April 2015, however,the Credit Union of Southern California (CUSC)approached the City about leasing the retail space. CUSC offers a full range of financial products (e.g., home loans, auto loans, commercial loans, no-fee Visa loans, no-fee checking, certificates of deposit, money market accounts, and financial planning services). They were chartered 60 years ago; have over$900 million in assets, 15 branches, 30,000 no-surcharge ATMs through the CO-OP network, almost 8,000-shared branches (in which the credit union shares a location with another facility), 77,000 members, and the highest possible financial rating from Bauer Financial. CUSC has almost twice the required reserve level to be considered well capitalized. In terms of customer service, CUSC answers roughly 75% of all incoming calls within one minute and does not use an automatic call attendant, and callers are not required to select options to speak with a representative. CUSC has consistently produced a Net Promoter Score, a loyalty score that a growing number of Fortune 500 companies and financial institutions are using, of over 80%. Banks and credit unions are currently averaging 8%and 58%, respectively; CUSC's score in 2014 was 84%. 9-88 The Credit Union of Southern California would make a suitable tenant of the space for the following reasons: • The Credit Union of Southern California will be open to members of the public. In addition,the Credit Union of Southern California is merging with the Newport Beach City Employees Federal Credit Union (the space's originally intended tenant), so City staff will have quick and convenient access to all credit union services. • The Credit Union will install a full-service,deposit taking and cash dispensing ATM. The addition of an ATM is an oft-requested amenity from Library customers. The ATM would be installed through the outer wall of the branch in order for it to be available during hours that the branch would not be open. In addition, CUSC will also ensure that two or more employees are on-site at the branch during operating hours (Monday through Friday from 9:00 AM to 6:00 PM and Saturdays from 9:00 AM to 1:00 PM. • The Credit Union intends to join and support the Newport Beach Chamber of Commerce and participate and support a variety of Newport Beach community events. CUSC will also generate revenue that will help fund Library and Cultural Arts programs. In addition, CUSC has expressed willingness to donate to various community organizations. Over the last 2 decades, the Credit Union of Southern California has donated $1 million to the communities it serves. • The Credit Union of Southern California has financial literacy and financial education programs for adults and students of all ages, which complements the Library's mission. They have expressed a willingness to work with the library to offer programming or to enhance any existing programs in place. • The retail space was specifically designed and is currently configured to accommodate a credit union. The retail space was initially designed and outfitted as a credit union at a cost of$48,000.This amount includes the installation of custom cabinetry and specialized electrical work for the staff work stations. The cost of removing the millwork and cabinetry, painting and patching the walls, repairing the carpet, and rerouting the electrical wiring is estimated at$5,000.00. Moreover, removing the fixtures and millwork installed for a credit union or financial services tenant will require City approval, in accordance with the initial Request for Proposal (RFP)for the retail space issued in January 2013.The RFP stipulates that any further improvements or modifications to the space need to be consistent with the architectural specifications of the new Civic Center. Reconfiguring the space is conservatively estimated at$20,000. The project would include graphics, paint, display cases, and secure art hanging hardware. Finally, additional costs for insurance will be incurred, as will staff costs. LEASE TERMS Below is a summary of the proposed terms of a lease agreement with Credit Union of Southern California: • Premises:579 square feet of retail space, located on the second floor in the Central Library. • Term: 5-year initial term, with two additional 5-year extension options. Options must be approved by City. 9-89 • Rent: $21,000 per year(based on market rate of$3.00 per square foot per month), adjusted annually upon the effective date by 3%. • Rent Commencement: No later than 30 days from the delivery date,or the first day they are open for business,whichever occurs first.This 30 day window allows them a short time to construct any improvements (i.e. install an ATM), and move into the space before rent commences. • Hours of Operation:Tenant shall be open to the public during the following hours—Monday through Friday 9:00 am to 6:00 pm, Saturday 9:00 am to 1:00 pm,Sunday Closed. • Parking for Employees:Tenant is limited to two (2) non-exclusive parking spaces in the parking structure, at level two or above. • Utilities/Taxes:Tenant is responsible for their pro-rata share of building utilities (trash, water/sewer, electricity), must obtain their own telephone and data accounts, and must pay any Possessory Interest that may be assessed. • Alterations:Tenant Improvements must be compatible with the existing improvements and design of the building, must be approved in writing by the City, and must be permitted as required by the City's municipal and building codes. Construction of tenant improvements must not interfere with operation of the Library, and must be performed on non-holiday weekdays. • Maintenance:Tenant must maintain the premises in good condition, and must keep it presentable to the public and library patrons, clean and free of trash/debris. • Insurance:Tenant must provide and maintain insurance coverage for their operations and use of the facility, in an amount and form acceptable to the City's Risk Manager, and name the City as additional insured. • Assignment/Subletting:Tenant may not,without City's written consent,voluntarily assign or sublet the premises. These terms are with the City Attorney's Office to be drafted into a lease agreement, and will then go to CUSC for review and comment (possibly further negotiation) before the agreement goes to the City Council for review and approval,therefore they are subject to change, and/or further clarification. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Arts Commission considers the item). 9-90 Attachment CC 4 CITY OF NEWPORT BEACH Board of Library Trustees Meeting Minutes June 15, 2015— 5:00 p.m. CONVENED AT 5:00 p.m. at the Corona del Mar Branch Library 1) CALL MEETING TO ORDER—Vice Chair John Prichard called the meeting to order. 2) ROLL CALL— Roll call by Vice Chair John Prichard Trustees Present: Vice Chair John Prichard, Secretary Eleanor Palk, and Jerry King Trustees Absent: Chair Robyn Grant, and Jill Johnson-Tucker Staff Present: Library Services Director Tim Netherton, Library Services Manager Dave Curtis, Administrative Support Specialist Elaine McMillion, Support Services Coordinator Melissa Kelly, Youth Services and Branch Coordinator Debbie Walker, Adult Services Coordinator Natalie Basmaciyan, Principal Civil Engineer Fong Tse, Deputy Public Works Director Mark Vukojevic, Fire Chief Scott Poster, City Council Member Scott Peotter 3) PUBLIC COMMENTS Vice Chair John Prichard invited public comments. There was no response and Vice Chair Prichard closed public comments. 4) APPROVAL OF MINUTES—Draft May 18, 2015 Minutes Motion made by Secretary Palk and seconded by Trustee King and carried (3-0-0-2)to approve the minutes of May 18, 2015, as presented. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson-Tucker 5) CURRENT BUSINESS A. CONSENT CALENDAR 1. Customer Comments - Monthly review of evaluations of library services through suggestions and requests received from customers. 2. Library Activities -Monthly update of library events, services and statistics. 3. Expenditure Status Report-Monthly expenditure status of the Library's operating expenses;services, salaries and benefits by department. 4. Board of Library Trustees Monitoring List -List of agenda items and dates for monthly review of projects by the Board of Library Trustees. Motion made by Trustee King and seconded by Secretary Palk and carried (3-0-0-2)to approve the Consent Calendar, as presented. 9-91 Board of Library Trustees Meeting Minutes June 15, 2015 Page 2 AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson-Tucker B. ITEMS FOR REVIEW AND POSSIBLE ACTION 1. Corona del Mar Branch Proiect Update— Staff will provide the annual update on the Corona del Mar Branch services. Youth Services and Branch Coordinator Debbie Walker provided a presentation addressing a general history of the facility, a "Village feel" identity, demographics, registered members, availability of the report on the City's website, budgeting, adoption of the service model, media circulation, materials collections, children's programming, staffing, new areas for seating and keeping the children's area large to accommodate programs. Brief discussion followed regarding tracking attendance at meetings and programs. 2. Corona del Mar Branch Project Update— Kelley Needham of WLC Architects and Public Works staff will present layouts and receive public input for the Corona del Mar branch project slated for construction in spring 2017. City Engineer/Deputy Public Works Director Mark Vukojevic provided an update on the Corona del Mar Brand project addressing public input and incorporating them into four different concept plans for consideration at this time that can be found at, http://www.newportbeachca.gov/trending/proiects- issues/corona-del-mar-library-fire-station . He introduced and deferred to Kelley Needham,WLC Architects, for a presentation. Mr. Needham provided details of each of four options including changes that were incorporated after the last Board meeting. He addressed restrooms, the lobby and entrance, children's area, storage areas, accommodating strollers, the current and proposed square footage, interior and exterior areas, reductions in square footage, changing the entrance location, and divisions between the adult and children's area. Mr. Needham addressed parking, consideration of a two-story option and parking for deliveries. Discussion followed regarding the need to demolish the existing building, ceiling heights, the possibility of having a loft, dedicated staff parking, staff opinions and recommendations, attempts to accommodate all users, reasons why the Fire Department needs a larger footprint, the number of Fire Fighters stationed at this location and landscaping versus parking. It was noted that staff will continue to work with the architect to ensure that the communities concerns are addressed. The renderings will be added to the website for accessibility by the public. RECESS/RECONVENE Staff called for a recess to allow the public to review renderings. The assembly reconvened with all Members, present, except Chair Robyn Grant, and Jill Johnson- Tucker. Discussion followed regarding the proposed architectural style and fagade, the need to make it look like a public building while blending with the community, the patio offering architectural relief, consideration of the designs by the Fire Department, costs, difference between the options presented, the total budget for the project and the possibility of building the Rex Brandt mural into the library. 9-92 Board of Library Trustees Meeting Minutes June 15, 2015 Page 3 Arlene Greer, Vice Chair of the City Arts Commission, provided a brief description of the Rex Brandt mural. She addressed the size, medium and colors of the mural. Brief discussion followed regarding library parking. City Engineer/Deputy Public Works Director Mark Vukojevic addressed next steps including additional public meetings. 3. Financial Report Comparison of Beginning Budget to End of the Year Amended Budget - Staff will report on Budget Amendments for Fiscal Year 2014-2015. Support Services Coordinator Melissa Kelly provided details of the staff report noting that most of the amendments were related to donations. She addressed allocations to the Literacy Program and offered to respond to questions. Motion made by Secretary Palk and seconded by Trustee King and carried (3-0-0-2)to propose amendments to the Fiscal Year 2014-2015 Budget as discussed and presented. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson-Tucker 4. Retail Space on the Second Floor Expansion— Staff will request that the Board of Library Trustees recommend to City Council that the retail space on the second floor expansion be leased by Credit Union of Southern California. Further information regarding the proposal, including the terms of the lease will be provided. Library Services Director Tim Netherton provided a report and addressed details of the lease. He noted the attendance of Dave Gunderson, a representative of the Credit Union of Southern California and deferred to him for a presentation. Mr. Gunderson stated they would be honored to open a branch in Corona del Mar and noted they are merging with the City Employee's Credit Union. He provided information regarding the organization and the services they offer. He addressed issues that differentiate the organization from others and commented on who can become a member of the credit union. He noted they are supportive of the community, especially, non-profit organizations and commented on plans to support the library. Credit Union representative Michelle Hunter spoke regarding free financial services offered to members and provided information regarding hours of operation. Discussion followed regarding the timeline for integration and approval. Motion made by Trustee King and seconded by Secretary Palk and carried (3-0-0-2)to recommend to City Council, that the second-floor expansion be leased, including the terms of the lease, to Credit Union of Southern California. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson-Tucker 5. Donation Acceptance for the Library Literacy Program— Staff recommends the Board of Library Trustees accept a donation from the Schulein Family Donor Advised Philanthropic Fund. If accepted, the $500 donations will be allocated into operating accounts for Literacy. 9-93 Board of Library Trustees Meeting Minutes June 15, 2015 Page 4 Vice Chair John Prichard presented the item for consideration. Motion made by Trustee King and seconded by Secretary Palk and carried (3-0-0-2)to accept a donation from the Schulein Family Donor Advised Philanthropic Fund. If accepted, the $500 donations will be allocated into operating accounts for Literacy. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson-Tucker C. MONTHLY REPORTS - No written reports created prior to the Board of Library Trustees Meeting 1. Library Services Director Report-Report of Library issues regarding services, customers and staff. Library Services Director Tim Hetherton addressed approval of the budget, a recent literacy event and the Library Foundation's Bunnies and Books program. 2. Friends of the Library Liaison Report- Trustee King's update of the most recently attended Friends of the Library Board meeting. Trustee King commented on the recent Annual meeting of the Friends of the Library and commended volunteers who helped make it a successful event. 3. Library Foundation Liaison Report— Trustee Johnson-Tucker's update of the most recently attended Newport Beach Public Library Foundation Board monthly meeting. No report, as Trustee Johnson-Tucker was absent. 4. Witte Lectures Committee Liaison Report - Secretary Palk's update of the most recently attended Witte Lectures Committee's monthly meeting. Vice Chair Prichard reported on the recent Witte Lecture Committee's meeting and lecture series, and addressed issues discussed at same. He announced an upcoming retreat and noted items that may be discussed during the event. 6) BOARD OF LIBRARY TRUSTEES ANNOUNCEMENTS OR MATTERS WHICH MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION OR REPORT (NON- DISCUSSION ITEM)-None 7) PUBLIC COMMENTS ON NON-AGENDA ITEMS A member of the public spoke regarding the possibility of engaging in fundraising efforts to expand and build out the Corona del Mar Branch Library. 8) ADJOURNMENT—6:25 p.m. Submitted by: T �1�GL�L6GlAr Vice-Chair Approval of Minutes 9-94 Board of Library Trustees Meeting Minutes June 15, 2015 Page 5 9-95 ATTACHMENT CC 5 1 VIP r a V 1� wY�r r _ 9-96 - r 9-97 P111 ETHE& to CU SoCal O 4 Welcome to Credit Union of Southern California (CU SoCal). The southern N California life is outside, in the mountains, on the beach, cruising along a freeway. We go beyond what's expected and won't settle for ordinary. We're honored you've chosen us as your financial partner and look forward to serving you! At CU SOCaI,Members are our number one priority.Our tradition of Building Better Lives Through World-Class Service and Convenience since 1954 is apart of our everyday culture.There's a story behind every Member-Owner's face.It's our commitment to know your story and to make a positive difference in each chapter of your life. World-Class Service.By choosing CU SoCal,you'll receive many of the financial products and services offered elsewhere,but with one important difference—World-Class Service.We only hire caring people who love making a positive difference in Members'lives and we personally answer your calls so there are no extensions to dial or phone trees to weed through. Convenience.CU SoCal Members receive the same conveniences offered by big banks including Mobile Banking,Mobile Bill Pay,Apple Pay—and Mobile check deposits.Plus,you have access to 10,000 more free ATMs than the largest bank,thousands of shared branch locations worldwide,Saturday hours,Home Banking and Bill Pay,account alerts,and 24-hour telephone account access.Call,click,or come by to access your funds anytime,anywhere. Safety and Sound n eSS. Protecting our Members'privacy is very important to us.We maintain a strict confidentiality policy to protect not only your financial assets,but your personal information as well.Plus,CU SoCal has a superior,5-star financial rating from BauerFinancial,employs prudent loan practices,and maintains a strong net worth.Members'savings are federally insured through the National Credit Union Administration(NCUA),a U.S.Government agency,to at least$250,000 and backed by the full faith and credit of the United States Government. Care for Community.We live and work in the same neighborhoods you do and strive to build strong,vibrant communities.Each year we're honored to volunteer our time and contribute financially to help those in need. Guidance. As your financial partner, we are happy to provide free financial ;i: ..,, , guidance and educational classes.Rest assured that you will always receive the very best from your team at CU SoCal. Again,thank you for entrusting us with your financial needs and for making CU SoCal a part of your life's next chapter. -tom 562.698.8326 1 866CUSoCal-866.287.6225 I CUSoCal.org 9-98 A y 1 ` Because of my positive experience, I have my primary checking account at CU SoCal and recommend the credit union to others. Thank you, CU SoCal, for restoring my faith in great customer service. —Veronica of Whittier free checking' ,ttttll111ptttlilllll... with eStatements Access io,000 more FREE = ATMs than the largest bank! Find thousands of shared branch locations worldwide. k E-Z Earn Checking2 %' ......n�illtlllniri"`p°""\`\\` ■ Higher dividends earned with 10 check card transactions per statement period ■ No monthly paper statement fee with eStatements ■ No minimum or maximum balance requirement after initial minimum$100 deposit ■ FREE unlimited check writing r . ■ FREE Visa°Debit Card ■ FREE e5ervices—eStatements I Mobile Banking I Online&Mobile Bill Pay I Mobile eDeposit Apple Pay" ■ FREE unlimited transactions at CO-OP Network and CU SoCal-owned ATMs VALUE Checking' ■ No monthly paper statement fee with eStatements ■ No minimum balance requirement ■ FREE unlimited check writing ' ■ FREE Visa"Debit Card ■ FREE e5ervices—eStatements I Mobile Banking I Online&Mobile Bill Pay I Mobile eDeposit Apple Pay" ' ■ FREE unlimited transactions at CO-OP Network and CU SoCal-owned ATMs VALUE+Checking2 ■ Competitive tiered dividends earned on balances of at least$5,000 ■ $15,000 combined savings and loan balances required ■ No monthly paper statement fee ■ No minimum checking account balance requirement ■ FREE unlimited check writing ■ FREE Visa'Debit Card ■ FREE e5ervices—eStatements I Mobile Banking I Online&Mobile Bill Pay Mobile eDeposit Apple Pay" ■ FREE unlimited transactions at CO-OP Network and CU SoCal-owned and foreign ATMs(non-CO-OP ATMs)' ■ FREE corporate image design checks(two boxes per year) Overdraft Protection Occasionally,the plot to your life's story thickens and you may need a little help.With CU SoCal's Overdraft Protection,we'll transfer funds from your savings,Money Market,or line of credit when you don't have money available in your checking account to cover a check or debit transaction. Order Checks ■ Call toll-free during business hours;866 CU SoCal(866.287.6225) ■ Order online at CUSoCal.org,log onto Home Banking,click on Check Services,then Check Order ATM Card Available free with any CU SoCal Checking or Savings Account ■ 24/7 access to checking and savings through point-of-sale transactions ■ Cash back at most merchants and through ATMs displaying STAR",Cirrus"or CO-OP®logos Visa"Debit Card Available free with any CU SoCal Checking Account i Access your funds 24/7 and make purchases at millions of locations worldwide that accept Visa"Debit Cards. ■ Easily get cash back at most merchants and through ATMs displaying CU SoCal,STAR",Cirrus",or CO-OP®logos ■ Make secure online purchases that are automatically deducted from your checking account 'A52paperstmementkewillbewaivedforvelue+Members,Membmn oam Dyears of ageand youngeror64years of age and better,and for Memberswho have signed up fore5tatemems bythe last dayof the month during the statementperiod.Otherwise,a 52 monthlyfee will beappliedlothepdmarysavings account,ltfunds are unavailable in your primarysa„Ingsaccounbthefeewnlb to nsrrredtothatacmuntfiumyourse-ochry Federally savings,checking,or money marketaccount.For Members withouta primary savings �\\ all NCUA insured 'Alkounctheme will be applied mrourehocking a<couctormoney morketaccount. CO-OP CO-OP b NCUA newaccounts will beverifietl through ChosSystems•and are subjmto approval. MATM /SHARED y 'Otherfinandal institutions may Impose a surcharge atforeign ATMs(non-COOP ATMs). 'RANCH CU SoCal does notchargevalue+Members foreign ATM fees, 562.698.8326 1 866CUSoCal-866.287.6225 I CUSoCal.org 9-100 J'%. . r , - ` I'd like to express my gratitude for the excellent service and consistent personable,cheerful,professional,organized,and helpful representatives at CU SoCal. —Stan from Pico Rivera relationship rewards We value the trust and relationship we have with our Members.That's why we offer a relationship �* rewards program called Value+.The Value+Program rewards you for maintaining a combined loan, O savings,and checking account balance of$15,000 or more with CU SoCal. (A Value+Membership Benefits (D ■ FREE ATMs.Enjoy unlimited free withdrawals,transfers,and inquiries at CU SoCal and non-CU SoCal ATMs' Higher Certificate Rates.Earn a.10%higher rate on most CU SoCal Certificates2 Earn Dividends.Earn competitive dividends with a Value+Checking Account' �- ln Lower Loan Rates.Geta.25%rate discount on most consumer loans° FREE Checks.Receive two free boxes of corporate-image checks per year AND get a free order of twelve temporary checks every twelve months ■ Fees Waived. • No Holiday or Summer Saver Account withdrawal fee • No savings account maintenance fee(usually incurred if your aggregate savings and loan balance is less than$300 and if you have no other CU SoCal product or service) • No overdraft transfer fee for transfers made by check,point of sale,check card,or Automated Clearing House(ACH)' • No cashiers'check,gift check,money order,or traveler's check fees" • No outgoing domestic wire fees 'Non-CU SoCal surcharge maybe imposed at non{y Socal ATMs and will be disclosed.at the ATM. 'Valid on any term and on certificate renewals.Not valid on Access Certificate. sAll new accounts will be verified through Ch 6V b ms•and are subject to approval. Consumer loans do not include lines of credit Visa cards,or mortgage loans. sLimit six per month fiom savings per Regulation D. °One signature traveler's checks. Federally _NCUA insured by NCUA r � t ar ireii- I • • Y Y V • r 9-102 sF, , I, q f � 1 e y 1 1 y t Mir F, investment services Creating your own happy ending starts with a plan! Plan today for retirement, educational expenses, or other financial goals. Find many investment choices through our valuable partner, CUSO Financial Services, L.P. (CFS).' ■ Financial Planning Services ■ Bonds and ETFs ■ Individual Retirement Accounts(IRAs) ■ Long Term Care Insurance ■ Variable and Fixed Annuities ■ Life Insurance ■ College Savings ■ 401(k),403(b),and 457Tax-Sheltered Accounts ■ Mutual Funds ■ Retirement Planning ■ Stocks ■ Pension and Retirement Plan Rollovers2 The Financial Advisors at CU SoCal,are registered through CFS,a broker dealer,and are available for a complimentary introductory meeting.Call 562.698.8326,866 CU SoCal(866.287.6225)toll-free,or visit CUSoCal.org to schedule your complimentary consultation. 1 Non-depositlnvestment products and services are offered through CUSO Financial Services,LR CUS'1.aregistered broker-dealer(Member FIMWSIPQ and SEC Registered Investment Advisor.Products offered through US are not NCU"CUSIF or otherwise federally Insured,are notguanu ees or obligations ofthe aedlt union,and may Involve Investment risk Including possible Ion of principal.Investment Representatives are registered through CFS.Credit Union oFSouthem California has contracted with USW make non�deposd Investment products and services available to credit union Members. 2 Before deciding whether to retain assets In an employer sponsored plan or roll over to an lRA,an invertor should consider varlous factors including,but not limited to:investment options,fees and expenses,services,w thdawal penalties,protection tram creditors and legal)udgments,required minimum distributions,and possession of employer stock. sav I n gs \`\\.oVUoa,unnnnnnuu,,,,,,ggp,... "All days are not the same. ; Save for a rainy day.When you don't work,your savings Life is not a race,but a journey to be savored each step of the > will workforyou:" way.At CU SoCal,you can expect a script written for a happy ending. M.K.Soni ' om 1 to CERTIFICATES—Terms available t 6months Value+Membersonmostcertificates „' 11 ■ v ■ Dividends paid monthly MINOR CERTIFICATES—Terms from 12 to 60 months ■ For Members age 21 and younger ■ $250 minimum deposit to open;additional deposits can be made anytime during the term ACCESS CERTIFICATES—Term of 6 months ■ Unlimited deposits and penalty-free withdrawals(transaction limitations per Regulation D') ■ Minimum$15,000 balance required COVERDELL EDUCATION SAVINGS CERTIFICATE—Term of 12 months ■ $25 minimum deposit to open ■ Annual contributions may be made for each child under the age of 18 ■ Contributions are made with after-tax dollars;maximum contribution limits apply ■ Withdrawals may be tax free if used for qualified education expenses;other factors may apply ■ Funds must be distributed by age 30 HOLIDAY SAVER'—For Members wishing to save for holiday expenses ■ Earn higher dividends than with a traditional savings account ■ $10 to open and$10 monthly minimum electronic deposit ■ Penalty-free withdrawals from November through February' IRA—TRADITIONAL—Terms from 12 to 60 months _ ■ $25 minimum deposit to open "� ■ Unlimited contributions throughout the term ■ Contributions maybe fully or partially tax deductible,depending upon income ".'.1 IRA—ROTH—Terms from 12 to 60 months ■ $25 minimum deposit to open . " ■ Unlimited contributions throughout the term _ ■ Contributions aren't tax deductible,but withdrawals after age 59Yzare taxfree if funds have been in the account at least five years;other factors may apply r MONEY MARKET' { ■ Earn higher(tiered)dividends than with a traditional savings account J ■ $2,500 to open and$2,500 daily balance to earn competitive dividends ■ No monthly fees SHARE SAVINGS'—Traditional Savings Account ■ $10 minimum opening deposit ■ Earn dividends with only a$500 minimum daily balance ■ Open as many as nine different sub-savings accounts SUMMER SAVER'—For Members wishing to save for the summer months ■ Earn higher dividends than with a traditional savings account ■ $50 to open ■ Penalty-free withdrawals from June through September' ' Regulation D allows a maximum of six withdrawals or transfers to be made from your non-transaction accounts per month. ' $25 fee for withdrawals from March through October for Value Members(Members with combined savings and loan amounts less than$15,000). ' $25 fee for withdrawals from October through May for Value Members(Members with combined savings and loan amounts less than$15,000). Federally _NCUA insured 562.698.8326 II 866 CU SoCal-866.287.6225 I CUSoCal.org by NCUA 9-104 i Ly. i Y 15 t i I've been a Member for more than 25 Years and appreciate the stability,voice of reason,and flexibility that CU SoCal offers me and my family. —Teri from Brea eServiees & convenience "I love that I can pay bills, deposit checks,view = transactions,and check my account balances on my cell phone with Mobile Banking." Simplify your life. Focus on what adds laughter and memories —Monica,Brea ' to your story. Safely and conveniently access your accounts on your schedule. ''""""'o���nnrnnunW,nn„��a�o���••••••```` CU ONLINE"—FREE Home Banking •• ■ View balances,account history,and check images,or reorder checks ■ Transfer between any deposit and most loan accounts • ■ Request withdrawals and loan advances ■ Set up budgets and easily create charts and graphs to see where your money goes ■ Create custom alerts to be delivered by email or text ■ Securely transfer funds to and from CU SoCal and other financial institutions ' FREE Online Bill Pay • Safely r Safely and securely pay bills with one-time,recurring,or periodic payments l' ■ Avoid late fees with automatic payments ■ View billing history .x ■ Set up new payees quickly and easily—choose from hundreds of preset merchants or create your own e G t eSTATEMENTS—FREE ■ View your statements as early as the first of each month ' ■ Print your statements any time ■ Eliminate paper clutter ■ Access archived statements instantly(no age limit on archived statements) ■ $S Membership fee waived MOBILE BANKING—FREE Go to m.CUSoCal.org on your smartphone's web browser to: ■ Review your account balances and transactions,deposit checks,make transfers,pay bills,and locate nearby FREE ATMs or shared branches ■ Download CU SoCal's free Mobile Banking app ■ Pay securely using Apple Pay'at more than 200,000 participating merchants nationwide ■ Have peace of mind with top security features to safeguard your personal information PHONETELLER—FREE Phone Access Access accounts toll-free to manage: ■ Account balances ■ Withdrawals and transfers ■ Cleared check verification ■ Account transactions and more ATMs-10,000 more FREE ATMs than the largest bank ■ Visit CUSoCal.org,or call toll-free 866 CU SoCal(866.287.6225) ■ Text your location from your smartphone to 692667(MyCOOP)or download the database to a GPS device at co-opnetwork.org SHARED BRANCHES CU SoCal shares branches with other credit unions so you can conduct financial transactions where you live, work,or travel. ■ Visit CUSoCal.org,m.CUSoCal.org on your smartphone, or call toll-free at 866 CU SoCal(866.287.6225) \\ \\ COP CO-OP /OqrM �SHARSO BRANCH 562.698.8326 1 866CUSoCal-866.287.6225 I CUSoCal.org 9-106 II� 10 f What's your dream?Taking a long-awaited trip to a faraway place? Making little moments magical? Priceless experiences are what make your fantasy your biography. home loans consumer loans MORTGAGE LOANS PERSONAL—Signature Loan ■ 10-,15-,20-,or 30-year fixed-rate terms ■ A fixed-rate,unsecured personal loan ■ Adjustable-and fixed-rate financing ■ Loans from$500 to$25,000($25,000 maximum ■ No Cost,No Kidding Refinance Loan' unsecured aggregate) ■ 3%down payment option ■ Terms up to 60 months ■ Jumbo financing available ■ No prepayment or application fee ■ Fast loan pre-approva13 ■ Cash back real estate program PERSONAL—Line of Credit ■ Flat$995 lender fee on most loans ■ A revolving,unsecured line of credit ■ Use as overdraft protection for your CU SoCal Checking HOME EQUITY LINE OF CREDIT(HELOC) ■ Credit limit up to$25,000($25,000 maximum ■ 2.95%APR 4 for the first 12 months unsecured aggregate) ■ Interest only payments forfirst 10 years ■ Access via ATM,Home Banking,mail,in person,or phone ■ No points,no up-front costs' ■ No prepayment or application fee ■ HELOC-75($250,000 limit),HELOC-80($150,000 limit), HELOC-90($100,000 limit) PERSONAL—Certificate Secured ■ A fully indexed rate of Prime plus 0.000//66 on our ■ Loan amounts up to 95%of available certificate balance HELOC-80 ■ Flexible repayment terms based on certificate maturity ■ No prepayment or application fee HOME EQUITY LOAN ■ Available for up to 80%of your homes combined loan- PERSONAL—Share-Secured to-value(CLTV)ratio from$10,000 to$150,000; ■ Loan amounts up to 95%of available share balance 75%CLTV up to$250,000' ■ Terms up to 120 months ■ Affordable terms up to 25 years ■ No prepayment or application fee ■ Possible tax deduction(see your tax advisor) 'Farqualifying h fordmaterefinance transaRioncUnder this program,alender's bleloan red amour from5dontet Good ■ Acceptable properties indudesingle family, raphe:r;n,a,etaorhetorigination and emm-partyfees.Engmlemanamoannrroms2oo,000to and two-,three-,or four-unit properties $417.000 on owner-occupied propertiassnly.Maximum Loan to value lLNl up to 7o%afthe combined lop as one unit is occupied Member-Owner loan value fortarmand term refinance.Must have a minimum credA scone of 740.Owner-occupied (as 9 P y ) primary residence only'Maximum LTV up to 97%.'Proper submission ofyour income,as well as asset ■ Vacation home programs available documentation is needed for Pre-approval.Offera shown are subject to change anytime without notice and are not intended to be inclusive or a commitment to the pricing far which you may qualify.Actual ■ Properties with construction work in progress will not pricing will be haled on credit history,,N,occupancy,property type,loan amount,loan Purpose,and be eligible Income/finanaal obligations'APR-Annual Percentage Rate.Rate is subject to change without notice, and adjusts quarterly after the first 12 months.`Member does NOT pay lender costs.Early assure cost Contact a helpful Mortgage Loan Consultant today reimbursement Irthe li is closed within 36 months of the open date,the Member will reimburse CU SoCal all closing lusts.Acceptable properties include single family,condominium,and twa-,three-, at 1.800.698.7196. or humunit properties(as long a,one unit is occupied by Member).°The rate is tied tothe Prime Rare Index Rates may adjust quarterly with a minimum door rate of4.5%and a maximum rate of 16%. 'Estimated payment Per$1,000 borrowed is$8.34. _ CU SoCal is an equal housing lentler.Members must cred'rtqualiy.NMLS 14547d8 um 9-107 loans100"M.....t1t11iiiiiBi,,,,,,,,,,,,,,, Ourfriend lyloan officers will help you get the funds you need to make your or vehicle loans loan protection fantasyyour biography. ■ terms Ato u00 0084 months and used autos with termsd-rate financing on new autos programs p "'unnnllunulm too up to 72 months Debt Protection ■ Up to 80%fixed-rate financing on new boats and Debt Protection coverage provides trailers with terms up to 120 months financial and credit rating protection in the event of death, ■ Up to 80%fixed-rate financing on new motorcycles disability,or involuntary unemployment. Debt Protection is with terms up to 60 months similar to traditional credit life and disability products,as it ■ Up to 80%fixed-rate financing on new or used RVs helps to protect you against a broader range of events. and motor homes,with extended terms available Mechanical Repair Coverage—(MRC) ■ Classic car loans are available Our MRC is very similar to the extended warranty service ■ Loans include tax,license,document fees,and offered at an auto dealer;however,our program is usually extended warranty less expensive.Most major repairs are covered by licensed ■ No prepayment or application fee mechanics. DISCOUNTS—Driving rates down Guaranteed Asset Protection—(GAP) Lower your vehicle loan rate with a variety of options. If your vehicle is stolen or totaled in an auto accident,your ■ 1/4%discount for Value+Members insurance settlement may not pay the full balance of your auto ■ 3/4%discount for Auto-Pay from or direct deposit to loan.CU SoCal can help ensure that you're fully covered by a CU SoCal Checking Account or if you're a financing GAP into your auto loan. CU SoCal Member for 10+years with a CU SoCal Checking Account commercial lending credit cards Lower your monthly payments and maximize the return on CU SoCal Visa®—CLASSIC your investment with terms up to 15 years and amortization ■ Non-variable,low annual percentage rate(APR), up to 30 years. ■ Loan amounts up to$8,000,000 no annual fee,no fee for cash advances or balance ■ 5 to 15-year fixed-and adjustable-rate programs transfers ■ Blanket loans available ■ 2.99%APR fixed intro rate on balance transfers' ■ Single-family residences,duplexes,triplexes,fourplexes ■ Auto rental insurance and roadside dispatch Apartment buildings—including garden,mid-rise and ■ Personalized dispute assistance ■ Make convenient purchases at more than high-rise 15 million merchants worldwide 'Offervalld only on non-CU SoCal balance transfers and does not applyto purchases.Members must CUSoCal Visas—PLATINUM offers additional benefits credit qualify.Maximum dual transferamount Isfimaaatoyoerapprm,adcredit llne.oBercan expireat anytime without notice.Balance transfers within the promotional period will be at 399%fixed Intro APR ■ Annual cash rebate progra m' for 13 months with a cmresponding monthly perindlc rate of 249%from the data they are posted to the account.After that the rate will change to gout non-variable APR.We may end your introduRory APR if ■ Non-variable,low APR,no annual fee,no fee for cash ypbarat�nbant is aennguant eo aaya urmore.Promoron,ate appres to vaa Rlabnumanaaanaieearaa. advances or balance transfers' Cash rebate program does not apply to balance transfers or cash advances.'A I%annual cash rebate will be paid on youranniversary date on accumulated purchases of more than$1,500 and does notapplyto ■ 2.99%APR fixed intro rate on balance transfers' balance transfers or cash advances•Pledge cfsharesan bacteria secure yourobllgations,you must keep ■ Auto rental insurance and roadside dispatch on deposit the required amount input regular share throunho until you repay rout loan or put account ■ Personalized dispute assistance is converted d Vi ed from a'Share-Securesa.-If you default we may apply these shares to pay the balance. ■ $500,000 travel accident insurance ■ Emergency travel services CU SoCal Share-Secured Visa®Credit Card' ■ A credit limit up to 95%of your share- secured balance ■ Plus all the advantages of our Visa®CLASSIC 562.698.8326 1 866 CU SoCal-866.287.6225 I CUSoCal.org 9-108 MEMBERSHIP APPLICATION Southern of We welcome anyone who lives,works,worships,or attends school in Orange County, Southern California Los Angeles County,as well as Chino,Chino Hills,Ontario,and San Bernardino.Your BUILDING BETTER LIVES family is welcome to join. Eligible family Members include your spouse, children, parents, siblings, grandparents, grandchildren, stepparents, stepchildren, and stepsiblings. am: ❑ Anew Member ❑ Making a change to my current account To become a CU SoCal Member,complete the application below and sign where indicated. Enclose a check or money order for your one-time$15 Membership fee($10 Membership Par Value plus$5 Membership fee;fee is waived with eStatements),the minimum deposit required for requested accounts,and a copy of your driver's license or state ID for primary and joint owners.Then securely seal these documents and bring to a branch or mail to CU SoCal. Please Sign me up for: ❑ Money Market ❑ ATM/Debit Card Please contact me for: ❑ Savings ❑ Certificate/Access Certificate ❑ CUOnUne-eServices ❑ Fixed/Adjustable Mortgage loan ❑ Summer/Holiday Saver ❑ FREE Checking with eStatements ❑ PhoneTeller ❑ HELOC/Home Equity loan O Value O Value+ O E-Z-Earn ❑ Other 9&911�;IO K21 r Primary Member Name(print) Social Security I EIN# Joint Member Name(print) Social Security/EIN# Physical Address City State Zip Physical Address City Slate Zip Mailing Address(If different) CRY State Zip Mailing Address(if different) City State Zip Home Phone Business Phone Cell Phone Home Phone Business Phone Cell Phone Date of Birth Driver's License#I ID# Mother's Maiden Name Date of Birth Driver's License#I ID# Mother's Maiden Name Employer Current Position Employer Current Position Email Address Emall Address r (Pay-on-Death Payee) In the event of my death and if all other joint owners predecease me,I hereby designate the persori whose name appears below as my beneficiary to receive any and dismounts in this account. Name of Beneficiary 1 Relationship to Member Address city State Zip Name of Beneficiary 2 Relationship to Member Address City State Zip "If more than one Beneficiary is named,amounts will be divided equally among all Beneficiaries. ' r ' ' ' • Checking account overdrafts will be covered by a transfer'from(you may choose from a savings,checking,money market or line of credit account),Overdraft options will also apply to electronic(ACH)transactions, 1. FROMAccount# JQAccounl# Account ID Loan ID FROM Acwunt# TOAmount# Account ID Loan ID "NOTE:Regulation D limits the number ofwid drawals on ran-transaction accounts each month.Amaximum total of six(6)pre-autho ized share transfers mayoccur during a calendar manth.IF no funds are available,we may cover your transaction using CU SoCal Courlmy Pay Service.Afee may be charged for this service if no funds are available,item(s)will be returned unpaid. I hereby apply for Membership in Credit Union of Southern California(CU SoCa ft.By signing below,I acknowledge that I have received a copy of CU SoCal's Truth-in-Savings Disclosure and agree to be bound by its by-laws and any amendments thereto.I acknowledge that I have received a copy of the current Schedule of Fees.I authorize CU SoCal to obtain credit reports in connection with this account and any future credit opportunities.I authorize CU SoCal to open other accounts for me in person,as instructed in writing or per my telephone request. I certify under penalty of perjury that(1)the Social Security Number or Employer Identification Number(EIN)above is my correct tax identification number,(2)1 am NOT subject to backup withholding because(a)I am exempt,or(b)I have not been notified that I am subject to backup withholding as a result of a failure to report all interest or dividends,or(c)the IRS has notified me that I am no longer subject to backup withholding,and(3)1 am a U.S.person(including a U.S.resident alien).You must cross out item(2)above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest or dividends on your tax return.The IRS does not require your consent to any provisions of this document other than the certifications to avoid backup withholding. X x Member Signature Joint Owner Signature Date EMMSMSM Membership approved by Date Signature User ID New Account Number ID Issue Date Exp.Date Membership Officer Initials P.O.Box Zoo,Whittier,CA go6o8 II 866CUSoCal-866.287.6225 11 info@CUSoCal.org I CUSoCal.org 9-109 The Credit Union Difference. For People. Not Profit. Our nation's credit unions have helped American families live better lives and embrace democratic principles for more than seven decades.During the Great Depression,many struggling citizens found financial relief and security in credit unions.It was said that many were thankful during those tough • times,that credit unions were"Not for Profit,Not for Charity,But for 5ervice."This"People Helping �' r People"philosophy still holds true today. • Does this sound different from other financial institutions?That's because credit unions - • are different.Unlike most other financial institutions that pay dividends to outside ' stockholders,credit unions return earnings to Member-Owners in the form of competitive rates,lower fees,and new or improved products and services. As a new Member,you join many colleagues and neighbors who already know the CU SoCal difference.The credit union that began in 1954 1 is now more than 77,000 Members strong,has more than$977 million in assets,and serves those in need with its own charity,CU SoCal i Helping Hands. CU SoCal doesn'tjust exist to provide financial services—we provide financial services with World-Class Service for the purpose of Building Better Lives. 9-110 Contact Us Telephone Service Center Monday-Friday,9 a.m.-6 p.m. r,,} Saturday,9 a.m.-1 p.m. �'J�� Toll-free 866 CU SoCal 1866.287.6225 � �,.'. r Local 562.696.6326 ❑� c For more PhoneTeller Free 24-hour account access information Toll-free 800.249.2328 toll-free Local 562.945.2214 local Mail P.O.Box 200,Whittier,CA 906o8 Fax 714.990.5492 Email info@CUSoCal.org Mobile Banking m.CUSoCal.org Website CUSoCaLorg Branches ALHAMBRA COVINA NEWPORT BEACH goo S.Fremont Ave.(Mezz.) 1404 N.Azusa Ave. 425 Old Newport Blvd.,SuiteA Monday-Thursday:8a.m.-5p.m. Monday-Friday:9 a.m.-6 p.m. Monday-Friday:8 a.m.-3 p.m. Saturday:9 a.m:1 p.m. ANAHEIM ONTARIO BROOKHU RST EL MONTE 2777 E.Guasti Rd.,Suite 6 801 S.Brookhurst St. 11024 Concert St. Monday and Friday:9 a.m.-3 P.M. Monday-Thursday:8a.m:4:3op.m. Monday-Friday:9a.m.6p.m. Tuesday-Thursday:9a.m:4P.m. Friday:8 a.m.-5 p.m. FULLERTON PICO RIVERA STATE COLLEGE 230W.Wilshire Ave. 933o Whittier Blvd. 1475 S.State College Blvd.,Suite loo Monday-Friday:9:3oa.m:5:3op.m. Monday-Friday:9 a.m.-6 p.m. Monday-Friday:8:3o a.m.-4 P.M. Saturday:9a.m.-1p.m. POMONA BREA GARDEN GROVE 435 W.Mission Blvd.,Suite loo 2500 E.Imperial Hwy.,Suite 170 11390 Stanford Ave. Monday-Friday:9 a.m.-6 p.m. Monday-Friday:9 a.m.-6p.m. Monday-Friday:8:30 a.m.-4 p.m. Saturday:9 a.m:l p.m. Saturday:9 a.m.-1 p.m. LA HABRA W H ITTI ER CITYOFINDUSTRY 901 E.Whittier Blvd. GREENLEAF 17871 Colima Rd. Monday-Thursday:9:3o a.m.-5:30 p.m. 8028 Greenleaf Ave. Monday-Friday:9 a.m.-6 p.m. Friday:9:3o a.m.-6 p.m. Monday-Friday:9 a.m.-6 p.m. Saturday 9a.m:l p.m. Saturday:9:30 a.m.-1:30 p.m. Saturday:9 a.m:l p.m. MARKETPLACE Free ATMs & Shared Branches 11749 Whittier Blvd. Monday-Thursday:9:3o a.m.-5:30 P.m. TEXT 692667(MYCOOP)with your location—ATMs only DOWNLOAD FREE APP Visit m.CUSoCal.org from your smartphone VISIT CUSoCal.org REPWO A . . • vf.Mp. 9-111 Credit Union of Website CUSoCal.org Southern California Email info@CUSoCal.org Mobile Banking m.CUSoCal.org BUILDING BETTER LIVES Find ATMs Text location to 692667 Lost/stolen credit card 800.556.5678 TELEPHONE SERVICE CENTER Lost/stolen debit card 888.698.7241 CU SoCal routing# 322283796 Local 562.698.8326 Toll-Free 866 CU SoCal 1866.287.6225 For branch locations&hours visit CUSoCaLorg Monday-Friday 9a.m:6 p.m. P.O.Box 200 1 Whittier,CA 90608-0200 Saturday 9 a.m.-1 p.m. Find FREE ATMS Find SHARED BRANCHES ■ Call toll-free 866 CU SoCal(866,287.6225) ■ Call toll-free 866 CU SoCal(866.287.6225) ■ Visit CUSoCaLorg ■ Visit CUSoCaLorg ■ Text your location to 692667(MYCOOP) ■ Visit CU SoCal's Mobile Banking site at ■ Download the database of ATMs directly to your GPS m.CUSoCal.org device at co-opnetwork.org ■ Visit CU SoCal's Mobile Banking site at m.CUSoCal.org Aft CO-OP i snaaev 9FANLH .9ATM-P Take for your wallet! 9-112 Attachment CC 6 INCOME PROPERTY The City owns and manages an extensive and valuable assortment of property including streets, parks, beaches, public buildings and service facilities. The City also owns and operates a yacht basin, a mobile home park, a luxury residential development and various other income properties. Most of the income property is tidelands, filled tidelands or waterfront. Unencumbered fee value of income property is estimated at upwards of one hundred million dollars, and income typically contributes ten percent of all City revenues. As owner/manager of property, the City is the steward of a public trust, and state law requires the City to maximize its returns on state-managed property or be subject to a charge of making a gift of public funds. Nevertheless, the City Council recognizes the importance of this property not only as a revenue generator, but also as a means to provide otherwise unfeasible uses and facilities to benefit the community. In managing its property, the City will continually evaluate the potential of all City owned property to produce revenue. This may include leasing unused land, renting vacant space, and establishing concessions in recreation areas or other similar techniques. The City Council will evaluate the appropriateness of establishing new income properties using sound business principles and after receiving input from neighbors and users. The policy of the City Council is that income property be managed in accordance with the following: A. Whenever a lease, management contract, concession, sale or similar action regarding income property is considered by the City, an analysis shall be conducted to determine the maximum or open market value of the property. This analysis shall be conducted using appraisals or other techniques to determine the highest and best use of the property and the highest value of the property. B. All negotiations regarding the lease, management contract, concession, sale or similar action regarding income property shall include review of an appraisal or analysis of the use being considered for the property conducted by a reputable and independent professional appraiser, real estate consultant or business consultant. C. The City shall seek, whenever practical and financially advantageous, to operate or manage all property and facilities directly with City staff or contractors. D. In all negotiations regarding the lease, management contract, concession, sale or similar action regarding a non-residential income property, the City shall seek 9-113 revenue equivalent to the open market value of the highest and best use; and, whenever possible the City shall conduct an open bid or proposal process to insure the highest financial return. E. Whenever less than the open market or appraised value is received or when an open bid process is not conducted, the City shall make specific findings setting forth the reasons thereof. Such findings may include but need not be limited to the following: 1. The City is prevented by tideland grants, Coastal Commission guidelines or other restrictions from selling the property or converting it to another use. 2. Redevelopment of the property would require excessive time, resources and costs which would outweigh other financial benefits. 3. Converting the property to another use or changing the manager, concessionaire or lessee of the property would result in excessive vacancy, relocation or severance costs, which would outweigh other financial benefits. 4. Converting residential property to another use or opening residential leases to competitive bid would create recompensable liabilities and other inequities for long-term residents. 5. The property provides an essential or unique service to the community that might not otherwise be provided were full market value of the property be required. 6. The property serves to promote other goals of the City such as affordable housing, preservation of open space or marine related services. F. Generally, lengths of leases, management contracts, concessions or similar agreements will be limited to the minimum necessary to meet market standards and will contain appropriate reappraisal and inflation protection provisions. Also, all agreements shall contain provisions to assure complete audits periodically through their terms. G. All negotiations regarding the lease, management contract, concession, sale or similar action regarding income property shall be conducted by the City Manager or his/her designee under the direction of any appropriate City committees. H. To provide an accurate accounting of actual net revenues generated by the City's income property, all costs and charges directly attributable to the management of 9-114 a specific income property shall be debited against the gross revenues collected on that property in the fiscal year the costs are incurred. Costs and charges include property repairs and maintenance, property appraisals, and consultant fees, as authorized by the City Council, City Manager or by this Income Property Policy. I. The City Manager or his/her designee is authorized to sign a lease, management contract, concession or similar agreement or any amendment thereto, on behalf of the City. Notwithstanding the foregoing, the City Manager or his/her designee, or a City Council member, may refer any lease, management contract, concession or similar agreement or any amendment thereto, to the City Council for its consideration and/or action. Adopted-July 27,1992 Amended-January 24, 1994 Amended-February 27, 1995 Amended-February 24, 1997 Amended-May 26, 1998 Amended - August 11, 2009 Amended - May 14,2013 Formerly F-24 9-115 Attachment CC 7 -, TowSe - 92—M � 015- �. f P titan Recorded Mail To: a' f1WAORMIEE CQ O• THE IRVINE COMPANY 550 Newport Cantor Drive ow MAY 81992 O hW Newport Saaeb, G 92660 MLQI6 W R�F - n 0WVCW .C#ftn" O.T-T. uFIJ .p a � oa s � Attention: Ise Milligan R�+� siAF S AOEe t� Space above thin line for Recorder's use M/ r v . DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE f 9-116 e • TABLE OF CONTENTS i DECL42ATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIES AND OPTION TO REPURCHASE ARTICLE 1. GENERAL PROVISIONS. . . . . . . . . . . . 1 1.1 Grantee's Representations and Warranties. . . . . . . . 1 1.2 Statesient of Declarant's General Purposes. . . . . . . . 2 1.3 Definitions. . . . . . . . . . . . . . 2 (r.) 'Benefitced Property• . . . . . . . . . . . . . . 2 (b) -Center' . . . . . . . . . . . . . . . . . . . . . 2 st (c) 'Declarant' . . 2 (d) 'Effective Date' . . . . . . . . . . . . . . . . . 2 ' (e) 'Final H.P. . . . . . . . . . . . . . . . . 2 (f) 'Grantee' . . . . . . . . . . . . . . . 2 (g) The 'Gross Floor Area" . . . . . . . . . . 3 '— ARTICLE 2. SPECIFIC RESTRICTIONS. . . . . . . . . . . . . . . . . . . . 3 2.1 Specific Facilities. . . . . . . . . . . . 3 (a) Improvement and Continued Use. . . . . . . . . . . 3 (b) Construction. . . . . . . . . . . . . 3 (c) Commencement and Completion. . . . . . . . . . . . 3 ,... . (d) Grading. . . . . - . . . . . . . . . 4 (e) Utilities, Streets and Public Imprevesrents. . . . 4 (f) Landscaping. . . . . . . . . . . . . . . . . . 4 (g) Alterations and Additions. . . . . . . . . . . . . 4 2.2 Declarant's Approvals. . . . . . . . . . . . . . . . 4 (a) Approvals Required. . . . . . . . . . . . . . . . 4 (b) Time for Approvals. . . . . . . . . . . . . 4 (c) As Built Plans. . . . . . . . . . . . . . . . . . 5 2.3 Grantee's Coat. . . . . . . . . . . . . . . 5 2.4 Fulfillment of Map Conditions. . . . . . . . . . . . . . 5 2.5 Compliance With Lav. . . . . . . . . . . . . . . . 5 (a) Grantee to Comply. . . . . . . . . . . . . . . . . 5 (b) Approvals of Applications. . . . . . . . . . . . . 5 2.6 Bonds. . . . . . . . . . . . . . . . . . . . . . . . . . 6 2.7 Transfers. . . . . . . . . . . . . . . . . 6 (a) Transfers Prohibited. . . . . . . . . . . . . . . 6 (b) Permitted Transfers. . . . . 6 2.8 Subordination or Consent to Transfer for Public Financing. . . . . . . . . . . . . . . . . . . 6 (a) Copy of Loan Documents. . . . . . . . . . . . . . 7 (b) Title Report. . . . . . . . . . . . . . . . . . . 7 (c) Disbursement Instivctions. . . . . . . . . . . . . 7 (d) Request for Notice of Default. . . . . . . . . 7 2.9 Costs of Regional Development. . . . . . . . . . . 7 2.10 MacArthur Boulevard Dedication and Maintenance. 7 ARTICLE 3. GENERAL RESTRICTIONS. . . . . . . . . . . . . . . . . . 8 3.1 Unapproved Development or Use. . . . . . . . . . . 8 , 3.2 General Maintenance. . . . . . . . . . . . . . . . . . . 8 3.3 Restoration. . . . . . . . . . . . . . . . . . . . . . . 8 3.4 Drainage. . . . . . . . . . . . . . . . . . . . . . . 8 3.5 Signa. . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.6 Prohibited Operations am[ Uses. . . . . . . . . . . . . 8 3.7 No Subdivision. . . . . . . . . . . . . . . . . . . 9 3.8 Zoning. . . . . . . . . . . . . . . . . . . . . . . . 9 3.9 Indemnity. . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE 4. DECLARANT'S RICHT OF FIRST REFUSAL. . . . . . . . . . . . . 10 ARTICLE S. REMEDIES. S . . . . . . . . . . . . . . . 11 5.1 Default and General Remedies. . . . . . . . . . . . . 11 (a) Damages. . . . . . . . . . . . . . . . . . 11 (b) Equity. . . . . . . . . . . . . . . . . . Il 5.2 Inspection. . . . . . . . . . . . . . . . . 11 I 5.3 Option to Repurchase the Land. . . . . . . . . . . . . . 11 (a) Grant of Option. . . . . . . . . . . 11 (b) Exercise of Repurchase Option. . . . . . . . . . . 12 (c) Expiration and Quitclaim. . . . . . . . . . . . . 12 9-117 L is ! ' (d) Repurchase erica. . . . . . . . . . . . . . . . . 1.2 (a) Repurchase Racror Sams. . . . . . . . . . . . . . 13 (f) Irrevocability. . . . . . . 13 !.. (g) Warranties• plans and Specificati" 13 J. 5.4 Arbitration Procedure. . . . . . . . . . . . . . . . . . 14 5.5 Waiver. . . . . . . . . . . . . . . . . . . . . . 14 n 5.6 Coots of Enforcement. . . . . . . . . . . . . . . . . . IS ,J 5.7 Rigbts of Lenders. . . . . . . . . . . . . . . . . . . . 15 5.8 Advances. . . . . . . . . . . . . . . . . . . . . . . . 15 U ARTICLE 6. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . 15 ' 6.1 Onavo!deble Delay. . . . . . . . . . . . . . . . . . . . 15 6.2 Continuous Operations. . . . . . . . . . . . . . . . 16 - 6.3 Covenants to Run With the Land; Lem. . . _ . . . . _ . 16 (a) Covenants to Run With the Lend. . . . . . . . . . 16 ' (b) Teta. . . . . . . . . . . . . . . . . . . . 16 6.4 Assignment by Declarant. . . . . . . . . . . . . . . . . L6 6.5 Amendments. . . . . . . . . . . . . . . . . . . . . . . 16 I 6.6 Release. . . . . . . . . . . . . . . . . . . 16 (a) Release by Declarant. . . . . . . . . . . . . . . 16 (b) Not Applicable to Declarant. . . . . . . . . . . . 16 6.7 Notice. . . . . . . . . . . . . . . . . . . . . . . . . 17 , I 6.8 Governing lav. . . . . . . . . . . . . . . . . . . . . . 17 6.9 Severability. . . . . . . . . . . . . . . . . . . . . . 17 i 6.10 Captious. . . . . . . . . . . . . . . . . . . . . . . . 17 - -. 6.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . 17 6.12 Gender and Number. . . . . . . . . . . . . . . . . . . . 17 6.13 Time of the Essence. . . . . . . . . . . . . . . . . . . 17 i i i 11 9-118 TABLE OF EXM178 ,J Prepert7 Description.................... 1 r' Specific Facilities..................... 2 -- .: Subordination ABreseent................. 3 • i �s i i I • I ji I I I if I 9-119 DECLARATION OF SPECIAL ]AND USE RESTRICTIONS, RICHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE m THIS DECLARATION (-Declaration') is made as of March 11, 1992, by and between THE IRVINE COMPANY, a Michigan corporation ("Declarant"), and the CITY OF NEWPORT BEACH, a California municipal corporation ('Grantee"), with reference to the following facts: i A. Grantee and Declarant have entered into an Exchange Agreement and Escrow Instructions (the 'Exchange Agreement') by which Grantee is acquiring from Declarant the following described real property (the -Exchange Land-) situated r In the City of Newport Beach, County of Orange. State of California: The southwesterly one-half of Parcel 2 as shown an Parcel Map No. 90-361, recorded in Book 270 , Pages 15 to IB , inclusive, of Parcel Maps, Records of said County. s'B. Grantee and Declarant have also entered into a Transfer Agreement and Escrow Instructions by which Grantee is acquiring from Declarant real property , adjacent to and contiguous with the Exchange Land which real property In situated in the City of Newport Beach, County of Orange. State of California ("Transfer Land") and is described as follows: The northeasterly one-half of Parcel 2 as shown on Parcel Map No. 90-361, recorded in Book 270, Pages 15 to 10 , inclusive, of Parcel Maps, Records of said County. C. In connection with such acquisition, Grantee has represented to Declarant that it has acquired the Exchange Land and the Transfer Land as a single parcel described as all of Parcel 2 as shown on side Parcel Map No. 90-361 I (the "Land') to Improve and use the Land in accordance with the covenants, conditions, rights, restrictions and limitations as particularly set forth herein (collectively referred to as the -Restrictions-), and Declarant is granting the Land to Grantee on the basis of Grantee's continuing compliance with such Restrictions. NOW, THEREFORE, in consideration of the foregoing (including the conveyance of the Land by Declarant to Grantee), and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto iagree as follows: ARTICLE 1. GENERAL PROVISIONS. 1.1 Grantee's Representations and Warranties. GRANTEE REPRESENTS AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SAME IN COMPLIANCE WITH THE .RESTRICTIONS SET FORTH HEREIN AMD FOR THE PARTICULAR USES AND PURPOSES AUTHORIZED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT: (a) GRANTEE IS EXPERIENCED AND KNOUIEDGEABLE IN THE CONSTRUCTION AND OPERATION OF PUBLIC FACILITIES, AND DECLARANT AND GRANTEE DESIRE TO PROVIDE A PUBLIC LIBRARY TO SERVE NEWPORT BEACH; (b) DECIARANI HAS CONVEYED AND GRANTEE HAS ACCEPTED FEE TITLE TO THE LAND FOR USE HY GRANTEE IN ACCORDANCE WITH THE PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DECLARANT AND GRANTEE DO PDT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PERMITTED HEREIN; (d) THE LIKELIIIOOD THAT ANY BREACH WILL OCCUR AND THAT DECLARANT WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (e) WITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOSES AND EXPECTATIONS OF DECLARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE DEFEATED; (f) BUT FOR CONVEYANCE OF THE WED, GRANTEE WOULD BE REQUIRED TO PAY SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE ESTABLISHED THE FAIR MARKET VALDE OF THE LAND FOR PURPOSES OF THE OPTION TO REPURCHASE BASED UPON PRESENT ESTIMATES AND HAVE APPLIED ADJUSTMENT FACTORS TO TAKE INTO ACCOUNT SUBSEQUENT CHANCES IN VALUES; (h) DECIAAANT AND GRANTEE ACKNOWLEDGE TART MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR LESSER THAN THE VALUE ESTABLISHED FOR PURPOSES OF THE OPTION TO REPURCHASE AND HEREBY ASSUME THAT RISK. 9-120 BIR FOR SUCH REPRESENTATIONS BY GRANTUR. AND GRANTEE'S UNIQUE SKILLS. i ERPERTISE AND SUITABILITY IN CONSTRUCTION AND OPERATION OF THE SPECIFIC PAc1L ms DESCRIBED BELOV, DEcLARAvr Wou1D NOT HAVE CONVEYED THE LAND To :~ :RANTES, BUT WOULD HAVE RETAINED THE BENEFITS OF OYNDMIP. INCLUDING FULURB APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES, DECLARANT HAS CONVEYED THE LAND TO GRANTEE. 1.2 Statement of Deelarant's General Purposes. Declarant is the owner of a large and unique landholding, part of which has been developed as a I �� meter plana d business, recreational, hotel, residential and recall Center, described below, 1n the Clty of Newport Beach (the 'City-). Among the + distinguishing characteristics of this mascerplaimad Center are the clear delineation of use areas throughout the Center, together with the atrict exercise I �j of architectural and occupancy controls over individual construction projects, I so as to ensure the hatmonicus growth end development of the Center and the ' maximization of the value of lleclarsnt's developed and undeveloped landholdings an well as the Land itself. In addition to those general concerns, it in vitally important to ar Declarant that the intensity of development shall be limited on those parcels of property (including the land) that Declarant from time to time elects to convey �1 to third parties. Should the development limitations imposed by Declarant be ll exceeded, the roadways and the infrastructure improvements servicing the Center and its environs could be overutilized, resulting in undesirable traffic congestion and imbalances within the Center. Such conditions could In turn adversely affect the ability of Declarant to develop, own, operate, lease or sell Ica landownLogs, including without limitation the 'Benefitted Property" as defined below. It is to promote these purposes that this Declaration is made, and It is the intention of the parties that it will be in furtherance of said purposes that the Restrictions, and all other declarations supplemental hereto, will be understood and construed. 1.3 Definitions. As used herein, the following terms shall have the meanings given to them below: (a) "Benefitted Property" shall mean the real property to which the benefit of the provisions of this Declaration Inures, and as of the execution of this Declaration shall mean the real property described on EEdXA T 1 attached hereto. Declarant shall have the right by a duly recorded amendment hereto executed solely by Declarant to substitute far or add to the Benefitted Property any real property owned by Declarant in the County of Orange, California. The Benefitted Property shall be the dominant tenement and the Ind shall be the servient tenement for purposes of this Declaration. (b) -Center- shall mean tho office, hotel, recreational, retail and residential and other use area commonly (mown as Newport Center (including the shopping center (mown as Fashion Island) and generally lying within the area enclosed by Pacific Coast Highway, MacArthur Boulevard, San Joaquin Hills Road and Jamboree Road. (t) -Declarant- shall mean The Irvine Company as Identified j above and its successors, assigns or designees who shall assume the obligation and to whom The Irvine Company shall sr�ciffcally assign in writing the right to enforce these Ree.-rictlons, subject to the provisions of the Section entitled "Assignment by Declarant." (d) -Effective Date" of this Declaration shall be the date this Declaration is recorded in the Official Records of Orange County, California. I (e) "Final Map' shall mean the final map covering the Lend described as Parcel Nap No. 90-361 as show on a map recorded In Book 270 , Pages - 15 to Ig , inclusive, of Parcel Maps, Records of Orange County, California. (f) -Grantee- shall mean the Grantee identified above and each and every suezeasor, assignee, ower, lessee, licensee or other occupant of the jl lend, the Specific Facilities, as defined below, or any portion thereof or interest therein, and each of then, during their ownership or occupancy thereof. 2 I 9-121 ilowavar, such ten shall net include any person having m Interest in all or say portion of the Land or Specific Facilities merely as security for the performance of an obligation. Without limiting the generality of the foregoing, if Grantee leases all or any of its interest in the land or the Specific Facilities, beth the lessor and lessee under such lease shall be responsible as principals (and net sureties) for compliance with all the terms and provisions of this Declaration. (g) The 'Gross Floor Area- &hall mean the aggregate number of I L� square feet of floor space on all floor levels of any building, including I ' mezzanines, measured from the Interior face of all exterior walls. No deductions ' or exclusions shell be made by reason of columns, stairs, elevators, escalators, or other interior construction or equipment. ARTICLE 2. SPECIFIC RESTRICTIONS. ' 2.1 Specific Facilities. (a) Improvement and Continued Use. Grantee represents and —/ agrees that Grantee shall cause the land to be improved only with the specific �a facilities described on pWIBIT 2 attached hereto (the "Specific Facilities-) and the other improvements described on EXHIBIT 2 attached hereto (the 'Other Improvements-) and in full accordance with all of the terns of this Declaration, ' and that Grantee shall cause the Land, the Specific Facilities and the Other Improvements to be used r.olely for a public library with related parking and no other use, notwithstanding that other uses may be permitted under applicable ! zoning ordinances, and in full accordance with all of the terms of this - Declaration. Use as a public library may include all uses and activities ' commonly associated with public libraries now and in the future including any form of information storage and retrieval such as video tapes, books, optical and magnetic disks or other technologies for Information storage and retrieval. Grantee may charge fees, rentals and late charges for loan or use of information media provided that fees, rentals and charges do not exceed the cost of operation of the public library facility. No portion of the land, or any improvements thereon, or any portion thereof, shall be used for retail, commercial, quasi- retail or quasi-commercial facilities that materially compete with the retail and commercial facilities in the Center or otherwise ivproved, developed, used, 1 operated or maintained with any facilities or for any purpose whatsoever except as net forth above unless expressly approved by Declarant, which approval may be I granted or withheld by Declarant in its sole discretion. 1 (b) Construction. Grantee shall improve the land with the construction and installation of the Specific Facilities and the Ocher Improvements pursuant to the plans and specifications approved by Declarant •' pursuant to the Exchange Agreement and the Transfer Agreement. If Grantee desires to make any substantial alterations, modifications, additions or changes to the exterior elements of any plans and specifications previously approved by Declarant, then Grantee shall submit three copies of any Change Order to Declarant for its approval prior to obtaining approval of such Change Order by the governmental entity having Jurisdiction and prior to incorporating such Change Order in the work. Declarant shall approve or disapprove such Change Order in accordance with the standards and procedures set forth in Section 2.2. Construction and installation shall be commenced and completed within the time periods set forth I. the Section below entitled 'Commencement and Completion.' (c) Commeneement and Coooletion. Subject to extensions of time for unavoidable delays as provided under the provision entitled "Unsvoidable_y— Delay,- (i) within the time period specified an EXHIBIT 2 as the 'CommencemenC-�}. Date," measured from and after the Effective Date of this Declaration, Grantee ,l shall have commenced construction of the Specific Facilities on the Land, and (ii) within the time specified on EXHIBIT 2 as the "Completion Date,' measured from and after the Effective Date of thio Declaration. Grantee shall have completed construction of the Specific Facilities on the Land in a manner consistent with plans and specifications approved In writing by Declarant pursuant to the Agreement. AS used herein, the tem "commenced construction• Shall mean the completion of substantial grading of the Land and the pouring of all or a substantial portion of all of the footings and foundations for the entire Specific Facilities (which need not necessarily include the ground floor slabs). Grantee shall be deemed to have -completed construction' of the Specific Facilities only at such time as Grantee shall have obtained from the appropriate 1 1 ■ 9-122 gave roman cal entity or agency a valid Certificate of Use and Occupancy for the Specific Facilities, Crentes shall emitsto and complete construction of the ! ., Other Improvements prior to or contemporaneously with suth Specific Facilities. _ (d) Cradles. Prior to the commencement of any grading or similar work on the land, Grantee shall submit to Declarant for its approval two n sets of plans and specifications for grading, terracing end filling of the Land ` ■ and for construction of other similar improvesents in, on or about the land. J � (e) Utilities. Streets and Public Ivarwements. J! (i) Grantee shall cause all necessary facilities for water, drainage, savage, telephone, electricity, cable televi.lon, and other utility service for the Lend to be constructed and installed thereon and thereto in the manner and within the time required by the Exchange Agreement. I (if) In addition to any such facilities constituting a w• part of the Specific Facilities or the Other Improvements, Grantee shall construct and Install or pay for construction and installation of all streets, street lights, driveways, curb cuts, entry ways, sidewalks and the like, perimeter valla and fences, irrigation and drainage systems, landscaping, w, —= man went, directional or other signs and all like improvements on the lend or ' between the Land and adjoining sidewalks or the curbs of adjoining streets, as required by the Exchange Agreement. (f) landscaping. In addition to the landscaping constituting j a part of the Other Improvements, if any. Grantee shall landscape the Land as necessary to create a first class attractive condition, and in a maaner consistent with the existing landscaping in the Center. Grantee shall submit to Declarant for its approval two sets of plans and specifications for the I, landscaping on the Land. (g) Alterations and Additions. Grantee shall not make any substantial additions, alterations or other modifications ("alterations-) of or to the exterior of the Specific Facilities or any additions, alterations or other modifications to the visible portions of the Other Improvements or other improvements from time to time located on the Land, without the prior written approval of Declarant. Declarant shall approve or disapprove of such alterations in accordance with the standards and procedures set forth in Section 2.2. All such alterations shall be subject to the provisions of Article 2 hereof. If Grantee desires to add additional structures to the land other than those specified in EXHIBIT 2, then Declarant may impose additional restrictions, _ covenants and obligations as a condition to its approval. As used in this Section, tike 'exterior' of the Specific Facilities shall mean all roofs, outside walls and facades, structural foundation.• entrance doors, windows. outside walkways, ramps and other accessways, and parking facilities. 2.2 Declarant's Approvals. (a) Approvals Required. Except with respect to plans and specifications approved prior to the recordation of this Declaration, no construction, installation or alteration of the Specific Facilities, the Other Improvements• or any other landscaping, grading or other Improvements in, about or on the Land shall be commenced unless the concept, plans and apecifications for the exterior elements of such lmprivements have first received the written approval of Declarant exercising its sole and absolute discretion. The improvements constructed shall comply with the plans and specifications approved by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that the Specific Facilities, the Other Improvements and all other landscaping and improvements on the Land shall be designed, constructed and installed to provide for a library with complementary landscaping and surrounding improvements which, in the sole discretion of Declarant, are in harmony with the plan and design of the Center. (b) Time for Approvals. Declarant shall approve or disapprove any plans and specifications delivered to Declarant pursuant to this Article as soon as possible but no longer than thirty (30) working days after receipt of two copies thereef accompanied by such drawings, site plans, elevations, artists' conceptions, saaplee of materials, models, mock-ups, and color samples as from time to time required by Declarant to review such plans and specifications. If 4 9-123 approved by Declarant, such approval shall be endorsed on such plans and specifications and one set of such docnaants bearing Declarant's approval shall _ be returned to Grantee within such thirty (30) working day period. If Declarant �- does not approve such plans and specifications, Declarant shall notify Grantee of its reasons for net approving such plana and specifications and Grantee cball, within Forty five (45) working days after receiving notice of Declarant'• disapproval, submit new plane and specifications for Declarant'• approval. vailure of Declarant to approve or disapprove any plane and specifications within said thirty (30) working day period and Declarant'• continued failure to approve or disapprove for five (5) working days after Grantee's written notice to ' Declarant that Declarant has failed to approve or disapprove as required herein ' shall be deemed approval thereof. the approval by Declarant of any plana and apeeifications pursuant to this Section shall only represent Declarants' satisfaction with the plans and specifications as to their general aesthetic elements. Such approval shall not be deemed to constitute any representation or ' warranty by Declarant as to the adequacy or sufficiency of such plans and specifications for architectural or engineering design or the feasibility or w integrity of any grading, landscaping, improvement or construction contemplated thereby for any use or purpose. By approving such plans and specifications, Declarant assumes no liability or responsibility therefor or for any defect in any grading, landscaping, Improvements or construction made pursuant thereto. i (c) As guilt Plans. Upon completion of the grading, I landscaping and construction of improvements. Grantee shall submit to Declarant two 'as built' sepias and a Certificate of Compliance executed by Grantee's state ' licensed consultant (engineer, architect and/or landscape architect). She { Certificate of Compliance shall warrant that the completed grading, landscaping and construction conforms to the plans and specifications therefor approved by Declarant. 2.3 Grantee's Cost. She Specific Facilities, the Other Improvements, and all other landscaping, grading and other improvements made or constructed In, about or on the land as contemplated herein shall be constructed, installed and completed at the sole cost and expense of Grantee and without any cost, liability or expense to Declarant. 2.4 Fulfillment of Hap Conditions. Certain map conditions dated November 21, 1991 (copies of which have been provided to Grantee) have been - imposed in connection with the approval and recordation of the Final Hap. Except as otherwise agreed in writing by Declarant and Grantee. Grantee shall comply with and/or fulfill all of those duties and obligations imposed by such map conditions on the 'Applicant" and/or -Subdivider' attributable to Grantee's use or development of the Land, all at Grantee's sole coat and expense. 2.5 Compliance with Iaw. (a) Grantee to Comply. the Specific Facilities, the Other Improvements and all other landscaping, grading and other improvements made or j constructed in, about or on the Land, and the use thereof, shall comply at all times with all public lava, ordinances and regulations applicable thereto. i Without limiting the generality of the for,.-going, Grantee shall obtain, at its sole expense, all of its internal and external governmental approvals and permits and approvals of other governmental authorl=Les with jurisdiction which may from ' time to time be required with respect to the performance contemplated under this Declaration, including, as applicable eid vi thout limitation, appropriate Zoning, building permits, permits from the Callforria Coastal Commission, operating and business licenses and permits and the lika. In obtaining such approvals and permits, Grantee shall prepare, at its sols expense, an necessary and without limitation, all environmental impact reports, englaoering studies and the like as necessary. (b) Approvals of Apolic ationa. All requests orapplications, together with all supporting documentation, for governmental approvals or permits which require discretionary action by discretionary bodies of Grantee or on the part of another governmental agency, shall be submitted to and coordinated and approved by Declarant prior to placing such approval on the agenda of Grantee's discretionary body or filing with any other governmental agency. Declarant shall have a period of forty five (45) days after receipt to disapprove any requests or applications so submitted by Grantee, and in the event of disapproval shall specify the reasons therefor. Failure to disapprove within such forty five (45) 5 9-124 Ilii& �rsla i • day period and Declarant's continued failure to approve or disapprove for fifteen (15) days after Grantee's written notice that Declarant has failed to approve or .- disapprove u required hereunder shall be dewed approval thereof. Grantee shall cause copies of all written communications between Grantee and other governmental agencies processing such requests or applications to be delivered to Declarant within five (5) business days after such comatullcation has been delivered to the addressee. U - 2.6 Rands. Before the commencement of any of the work required under this Article 2, Grantee shall furnish to Declarant true copies of any and Uall labor and material bonds and faithful performance bonds, if any, required of ' ._ Grantee by any governmental agency concerning such work. 2.7 Transfers. ' I (a) 17rensfera Prohibited. For a period of not less than ' i twenty-five (25) years after the Effective Date, Grantee shall not sell, loses, convey, exchange, encumber or otherwise transfer the land or any portion thereof or facilities thereon, whether by agreement for sale or in any other manner ' (herein collectively referred to as a -transfer') without first giving Declarant at least sixty (60) days' prior written notice of all terms and conditions of such proposed transfer and the right to either (i) acting reasonably, approve or disapprove such transfer, (ii) exercise its option to repurchase set forth in r Section 5.3 below, or (111) exercise its right of first refusal set forth in Article 4 below. Declarant in its sole discretion may within such sixty (60) day ' period exercise any such right. Declarant's failure to so act within such sixty (60) day period shall be deemed to constitute approval of the transfer on the terms and conditions proposed by Grantee. Any time after the twenty fifth (25th) anniversary of the Effective Date, Grantee may transfer the land without j DeclarantIsapproval under this Section and without regard to Declarant's option to repurchase set forth in Section 5.3 below or Declarant's right of first refusal set forth in Article 4 below. Grantee hereby acknowledges that it would be reasonable and appropriate for Declarant to disapprove a transfer and exercise its option to repurchase and/or right of first refusal if the proposed transferee Is not adequately experienced, knowledgeable and financially capable to own and operate a public library. (b) permitted Transfers. Notwithstanding the foregoing, (i) Grantee may transfer the Land to any other governmental or quasi-governoental entity or agency which has as its primary purpose maintenance and operation of public libraries provided such entity shall be subject to all of the provisions of this Declaration or (ii) provided Grantee complies with the provisions of Section 2.8 below, Declarant shall consent to a transfer or encumbrance on the Land made in connection with an Interim or permanent loan or loans or other fore of private or public financing (including without limitation bonds, lease revenue obligations or certificates of participation) ('public obligations') made in good faith and for value by an institutional lender or by a public obligation, the proceeds of which are used only for the coats and expenses of such public f obligations and construction of the Specific Facilities and Other Improvements or refinancing of a construction financing in an amount not to exceed the amount outstanding under the construction financing (collectively, 'Permitted Transfers'). 2.8 Subordination or Cone:ent to Transfer for Public Financin¢. Subject to the following p-ovislons and the provisions of Section 5.7 hereof, Declarant will either consent to a transfer described in Section 2.7(b) above, without exercise of Declarants right of first refusal contained In Article 4 and the option to repurchase contained in Section 5.3 (collectively, the "Enforcement Rights") or Declarant will subordinate its Enforcement Rights to any encumbrance referred to in Section 2.7(b) immediately above, (which Section 2.7(b) shall continue in effect even after Section 2.7 no longer has any application to this Declaration, for purposes only of describing the transfers and encumbrances to which Declarant will continue to consent or subordinate pursuant to this Declaration) provided that the principal mount of such a loan or public obligation does not, in combination with other loans and/or public obligations secured by or affecting the Land and/or the improvements constructed thereon do not exceed at any time ninety percent (901) of the fair market value of the Land and any improvements thereon, valued taking into account the restrictions contained in this Declaration, and such loans and/or public obligations are at commercially reasonable interest rates and otherwise contain 6 9-125 Commercially reasonable terse and conditions. Grantee will provide Dselerant I with appraisal information from a reputable N.A.I. appraiser, Era the Office of the Assessor of Orange County or frau an institutional lender reasonably satisfactory to Declarant to verify that the Coral. loaf-to-value rate does not exceed ninety percent (90a). No foreclosure, trustee's sale or deed in lieu of foreclosure with respect to any such permitted encumbrance or exercise of any A remedy to enforce a public obligation shall be doomed an •assignment• for - � I ,:urposes of Section 2.7, above. Vithin ten (10) working days after receipt of U the following iters, provided the foregoing requirements have been satisfied and provided there is no default under any provision of this Declaration or under my Uother obligation between Declarant and Grantee relating to the Land, Declart / shall execute, acknowledge and deliver to Grantee a subordination instrumentan-A— substantially the fors attached hereto as UHIBIT 3 or a consent to transfer_. _}-- pursuant to iaavenee of A public obligation: V ' (a) Cony of loan Documents. A tru and complete copy of all instruments executed by Grantee evidencing or securing the issuance of a public obligation or loan; any lease, mortgage, deed of cruet or other interest or right r created to enforce payment of any public obligation which affects the )and must not secure or relate to any obligation or indebtedness not related to improvement of the land, and neither the note, the mortgage, deed of trust, lease nor any other document or instrument pertaining to a loan or public obligation pertaining to the Land shall contain any provision making it a default thereunder if the ' I obligor or any other party defaults in any obligation not related to the acquisition or improveme:it of the land; (b) Title Report. A preliminary title report dated not I — earlier than fifteen (15) days prior to submittal shoving no title exceptions other than those in existence at the time Declarant transferred the land to Grantee, other utility easements reasonably necessary to serve the Land, and I other matters approved by Declarant; I (c) Disbursement Instructions. A copy of the executed financing instruments, loan agreement or other agreement pertaining to the disbursement of funds, which must provide in a manner satisfactory to Declarant I that the funds disbursed thereunder will be used only to purchase or improve and benefit the Land, or to refinance original financing made for such purpose (in an amount not to exceed the amount outstanding under the acquisition/construction loan refinanced); and (d) Request for Notice of Default. Unless public obligations are issued which do not involve a standard mortgage lien to secure performance of a note, a copy of a Request for Notice of Default pursuant to Section 2942b of the California Civil Code prepared for execution and acknovledgment by Declarant which, when recorded at Grantee's expense, will entitle Declarant to the notices prescribed by said Section 2942b. If public obligations are issued, then the documentation for such financing shall require delivery of a notice of any default to Declarant prior to exercise of any remedies available upon such default. i 2.9 Costs of Regional Development_ Grantee understands that development of the Specific Facilities an the Land will be accomplished in conjunction with development of ocher real property in the Center by Declarant other private parties. Grantee hereby agrees to pay Its share of infrastructure improvements made on, adjacent and off the situs of the Land. The infrastructure improvements shall include the inprovemencn required to complete the item net forth In MIBIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedi<ntion and Maintenance. Declarant and City agree that a lend area along MacArthur Boulevard shall be designated on the Final Map to be used exclusively for future expansion of MacArthur Boulevard. Prior to construction of road and other improvements for such expansion, Grantee shall not use the area designated for any purpose other than installation and maintenance of landscaping. Grantee agrees to install landscaping within such area prior to completion of construction of the Specific Facilities pursuant to plans and spoclfications approved by Declarant In accordance with the standards and procedures set forth in Section 2.2 and to maintain ouch area in a first class condition, order and repair at all times prior to commencement of construction for expansion of MacArthur Boulevard. 7 9-126 ' ARTICLE 3. CEPIR&L REMIC[IORS. 3.1 Unaooroved Develoeeent or Mon. Unless expressly approved by Declarant, which approval may be withheld by Declarant in Lee sole discretion, Grantee shall not permit the construction, maintenance, operation or use of any structure or improvements an the land mot in full compliance with all requirements of the law, this Declaration and my other covenants, conditions And 1 :ectrictloss from time to time covering the Land. J 3.2 General Maintenance. Prior to the completion of the Specific Facilities, Crantoe shall maintain the land in a clean, sanitary, orderly and .—. attractive condition, free of weeds, debris and pence. Upon completion of the Specific Facilities as contemplated herein. Grantee shall at all times maintain 'the Specific Facilities, the Other Improvements and all other improvements free time to time located on the Land, including without limitation the landscaped ' areaa, In first-class condition, order and repair. Crantee shall remove any graffiti on the Improvements, Other Improvements and all other Improvements on the Land within three (3) business days after delivery of notice by Declarant. 3.3 Restoration. If any building or improvement on the Land, or any part thereof, or any landscaping installed upon the Land, shall be damaged or destroyed by fire or other casualty, Grantee shall at its cost and expense either ' (i) repair or restore the same according to the original plane thereof or to such modified plans as shall be previously approved in writing by Declarant as provided above, or (it) demoliah such damaged or destroyed improvements and leave the Land (or applicable portion thereof) In a clean and safe condition. Such 1 repair, restoration or demolition shall be commenced within one hundred twenty I (120) days after the damage or loss occurs and shall be completed with due diligence but not longer than one (1) year after ouch work is commenced. The time periods specified in this subparagraph entitled "Restoration" shall be ' extended as provided in the Section of this Declaration entitled "Unavoidable Delay." 3.4 Drainase. Grantee shall not drain or discharge water from the Land (including buc not limited to rain water and water from landscape sprinkler systems located on the Land) on to adjacent land except as follows: Grantee shall at all times cause the Land to be graded and drained so as to cause the - discharge of all water from the Land onto the public street adjoining the Land or Into an established drainage facility. If any, on or adjacent to the land which has been designed to accommodate the water at the rate discharged. 3.5 Sizes. Grantee shall not place or use Any signs, banners, balloons, displays of other advertising media in, on, about or above the Land or on or In any improvements constructed or placed thereon unless it has first obtained the prior written consent of Declarant as to the number, size, location, height, illumination, color and design of such signs or other media. Declarant shall not unreasonably withhold such approval so long as such signs or other media (a) comply with (i) Declarant•a sign program for the Land, the property surrounding the Land and the Benefitted Property, if any, and (it) the statutes, ordinances or regulations of any governmental entity or agency having jurisdiction thereover including Grantee itself and (b) are in harmony and conformity with the existing or proposed improvements on or In the vicinity of ithe Land and with Declarent's general aesthetic and architectural plans and criteria for the Land, the Center and the general area in which the Land is - located. Except as provided 1n this Srctiwn, no sign, banner, balloon, display or other advertising media which to visible from adjacent land or any public or private street shall be maintained in, on about or above the Land or on or 1n any improvements constructed or placed thereon. 3.e Prohibited Operations end Uses. No trailer, camper, bus, automobile, motorcycle, boat or other vehicle or equipment ('vehicle') shall be permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 •.m. No use or operation shall be made, conducted or permitted on at with respect to all or any pert of the Land or improvements thereon which is obnoxious to or out of harmony with the residential end/or commercial neighborhood in the vicinity of the Land, Included mon& the uses or operations which are prohibited and are deemed to conflict with the reasonable standards of appearance and maintenance required hereby, are uses or operations which produce or are accompanied by the following characteristics, which list is not intended to be all inclusive: g 9-127 (a) Any public or private muisamci,; I (b) Any vibration, miss, sound or disturbance that to objactLonable due to intermittence, beat, frequanzy, shrillmss or loudness; J (c) Any direct lighting which is not shielded and confined within site boundaries; ! f (d) Any emission of odors, noxious, caustic or corrosive 1� meter, whether toxic or nontoxic; (e) Any litter, dust, dirt or ash in excessive quantities; (f) Any use of a structure of a temporary character, trailer, tent, aback, garage, barn or other outbuilding except for such structures maintained on the land during a period permitted for construction or reconstruction of improvements; I /e (g) Any service, maintenance, repair or washing of my vehicle on the land at any time except for emergency service necessary to move a vehicle to A maintenance facility off of the Land; �E (h) Any raising, breeding or keeping of animals, livestock or ' poultry of any kind; (i) Fuel storage of any type; 'I (j) Any accumulation of rubbish, crash or garbage. All refuse containers, air conditioning devices, utility areas, storage areas and machinery and equipment shell be prohibited upon the Land unless screened from view from I all adjoining lots and public and private streets; and (k) Any exterior radio antenna, television antenna, 'C.B.' antenna, -satellite dish,' microwave transmitting or receiving antenna or other antenna, transmitting or receiving device of any type mless it is screened from •- view from all adjoining lots and public and private streets. Any screen required under this Section shall consist of permanent landscaping and/or improvements in harmony with other landscaping and Improvements in the Center and approved in writing by Declarant. The provisions of this Section entitled 'Prohibited Operations and Uses' shall not in any way supersede the other Restrictions. 3.7 No Subdivision. Grantee shall not effect any change or amendment to the Final Nap covering the Land or record any further parcel or final map of the land or any portion thereof or facilities thereon pursuant to the California Subdivision Nap Act or any similar law and/or local ordinances adopted pursuant thereto, or file any tentative maps or applications with respect i thereto with any governmental agency, nor shall Grantee file or record e condominium plan covering the Land or any portion thereof or any improvements ! thereon or any applications with respect thereto nor shall Grantee convey a portion consisting of leas than all of the Land, unless expressly approved by Declarant which approval may be withheld by Declarant in its sole discretion. 3.8 ,Zoning. Grantee shell rot use or develop or attempt to see or develop the land or any portion thereof for any purpose other than those purposes expressly allowed under the zoning ordinnrLce of ordinances of the governmental entity having zoning jurisdiction over the :.and. Additionally. Grantee shall not at any time change or attempt any change in zoning, or obtain or apply for a conditional use permit, zoning variance or exception or other similar approval _J with respect to the use or development of the land or any portion thereof not expressly allowed under such existing zoning ordinance, unless expressly approved by Declarant, which approval may be withheld in its sole discretion. Notwithstanding the foregoing, Declarant shall not unreasonably withhold its consent to Grantee's application for such conditional use permit as may be required for development of the Land with the Specific Facilities. Grantee shall obtain Declarant's consent prior to placing such application on the agenda of Grantee's df.screcionery body or submitting any such application or related documents to any other governmental agency and thereafter will submit copiss of all such documents to Declarant for Its review and Information. 9 i 9-128 3.9Declarant nd Declarant'a jD�y. Past and present � employees, officers, directors, shareholders, agents and representatives and its —_ and Chair respective successors and ss&ISN (Collectively, the -Iudemnitsss•) shall not be liable for say loss, damage, injury or claim, of any kLad or character to any person or property arising from or caused by (a) the �ss� improvement, development, maintenance, use, lease or other conveyance of the 1m, i / 1 or improvements thereon or way portion thereof or interest therein, including, 'rithout limitation, any loss, damage, Injury or claim arising from or caused by or alleged to arise from or be caused by (1) any use of the Land or any part thereof, (ii) any defect In the design, construction cf. or material in any structure or other improvement upon the Land, (iii) any defect in or ' contamination of soils or in the preparation of soils or in the design and accomplishment of grading, (including the existence of any contaminants or am hazardous materials in or on the soil), (iv) any act or omission of Grantee or ' any of its agents, employees, licensees, itrvitees, or contractors, (v) any ' accident or casualty on the Land, (vi) any representations by Grantee or any of Its agents or employees, (vii) any violation or alleged violation by Grantee, its 7 employees or agents of arty lav now or hereafter enacted, (viii) any slope failure or subsurface geologic or groundwater condition, (ix) any work of design, ( ' construction, engineering or other work with respect to the Land, (x) any other cause whatsoever In connection. with Grantee's use of the Land or Crantee's performances under this Declaration, or any other agreement with Declarant relating to the Land, or (b) the negligence or willful misconduct of Grantee or r its employees or agents in the development, construction, grading or other work performed off the Load by Grantee pursuant to this Declaration, or (c) the breach by Grantee of any of its obligations under this Declaration. FWrthermore, as a material part of the consideration of this Declaration. Grantee hereby waives on „ its behalf all claims and demands against Declarant for any such lots, damage, or injury of Grantee, and agrees to indemnify, defend and hold harmless Declarant and its property, and the other Indemnitees from all loss, liability, damage, costs and expenses (including attorneys' fees) arising from or related to any such loss, damage, injury or claim, whether incurred or made by Grantee or any other person(s). The foregoing waiver and indemnity shall apply to a claim or action brought by a private party or by a governmental agency or entity under any statute or common law now or hereinafter in effect and is intended to apply with respect to loss, damage, Injury or claim arising before or after the lease, sale or other conveyance of any portion or all of the Land or any improvements thereon. With respect to design, construction methods, materials, locations and other matters for which Declarant has given or will give its approval, recommendation or other direction, the foregoing waiver. indemnity and agreement shall apply irrespective of Declarant's approval, recommendation or other direction. Notwithstanding anything to the contrary above, nothing contained in j this Section shall operate to relieve Declarant or the other Indemnitees from any ' loss, damage, injury or claim ultimately established by a court of competent jurisdiction to have been caused by the sole negligence or willful misconduct of Declarant or the other Indemnitees. Grantee's covenants in this Section arising from or related to acts or occurrences during the time of Grantee's ownership shall survive the lease or other conveyance of all or any part of the Land or improvements thereon and shall be binding on said Grantee (as well as its successors to the Land) until such time as action against the Indemnitees Is absolutely barred by an applicable statute of limitations. ARTICLE 4. DEGLARANT'S RIGHT OF FIRST REFUSAL. Except with regard to 'Permitted Transfers' described in the Section above entitled -Transfers-, if, ! at any time prior to the twenty fifth (25th) anniversary of the Effective Date, Grantee shall determine to transfer all or any part of the Land or the improvements thereon or any interest there:.n ('Interest'). Grantee shall notify Declarant of the price and the terms on which Grantee will be willing to transfer. If Declarant, within sixty (0) days after receipt of Grantee's notice, indicates in writing its agreement to purchase said Interest for the price and on the terms stated in Grantee's notice, then Grantee shall transfer and convey the Interest to Declarant for the price and on the terms stated in ouch notice. If Declarant does not indicate its agreement within such sixty (60) day period, then Grantee thereafter shell have the right to transfer and convey the Interest to a third party, but only for a price not less than the price offered to Declarant and on to rma not more favorable then those stated in the notice. if Grantee does not so transfer and convey the Interest within one hundred eighty (180) days after Grantee's notice, then any further transactions (including a transaction on the same price and terms previously submitted to l0 9-129 -- _ _ .. e+T?TD^.ab!fi.!n.�^[e,-.+,vire-emf+ylTYn..Y'���:Y•:'1.....a+Mrrw�.,w:.:�nne�:+..t-.-e.s...-.-_ Declarant) shall be deamed a now,determination by Grantee to transfer and convoy r said Interest, and the provisions of this Article shall again be applicable. ARTICLE 5. m - 5.1 Default and General Remedies. In the event of any breach, n -tolacion or failure to perform or satisfy any of the Restrictions which has not U been cured within the applicable cure period as set forth below, Declarant at its sole option and discretion may enforce any oro or more of the following remedies or any other rights or remedies to Mich Declarant may be entitled by law or equity, whether or net ant forth herein. Unless a cure period is otherwise specifically designated, a cure period shall commence when written notice Is given to Grantee of a violation hereunder and shall end can (10) days thereafter In the case of a monetary default and thirty (30) days thereafter in the we of a noumonstary default; provided, however, that if a nonsonstary default is net ! ' reasonably susceptible to cure promptly within the thirty (30) day period, then Grantee shall have a reasonable time to cure the name so long se Grantee has commenced oath cure promptly within the thirty (30) day period and thereafter !11 diligently prosecutes the cure to completion. To the asximm extent allowable 1 by lav, all remedies provided herein or by lav or equity shall be cumulative and not exclusive; provided, however, that except as provided in the following sentence in the event Declarant elects to exercise any remedy provided for in Section 5.3 hereof based upon a particular violation of the Restrictions, such remedy shall be Declarant's sole and exclusive remedy for such violation of the Restrictions. Notwithstanding the foregoing, Declarant's remedies for a violation or breach of Section 3.10 (Indemnity) shall be cumulative with and in addition to its remedies for other violations or breaches under this Declaration. 1 , (a) Damaes. Declarant may bring a suit for damages for any compensable breach of or noncompliance with any of the Restrictions, or declaratory relief to determine the enforceability of any of the Restrictions. (b) Equity. It Is recognized that a particular or ongoing violation by Grantee of one or more of the foregoing Restrictions may cause Declarant to suffer material injury or damage not compensable in assay damages (including, but not limited to, irreparable effects on the type and quality of _J development on and use of the Benefitted Property or portions thereof and/or frustration of Declarant's purpose for conveyance of the land to Grantee), and that Declarant shall be entitled to bring an action in equity or otherwise for specific performance to enforce compliance with the Restrictions or an Injunction to enjoin the continuance of any such breach or violation thereof, whether or net Declarant exercises any other remedy set forth herein. 5.2 Inspection. Declarant or its authorized representatives may i from time to time, at any reasonable hour, enter upon and inspect the Land, site or any portion thereof or Improvements thereon cc ascertain compliance with the Restrictions, but without obligation to do so or liability therefor. 5.3 Gotten cc Repurchase the land. Upon any proposed, attempted or actual •transfer• in violation of the provisions of Section 2.7 above and, in addition to the foregoing remedies described in Section 5.1, upon any violation of the Restrictions itemized in Sections 2.1!a) ('Improvement and Continued Use-) or 2.1(c) ('Cooc,encemant and Completion"), Declarant, in its sole option and discretion. shall be entitled to repurchase the Land as provided below. ' (Declarant shall not be entitled to repurchase the land unless a proposed, attempted or actual transfer in violation of Section 2.7 has been Initiated, e violation of the restrictions in violation of 2.1(s) hes occurred or construction has not been commenced or completed as required by Section 2.1(c).) (a) Grant of Option. Grantee hereby grants to Declarant an exclusive option to purchase the land subject only to: (i) Current taxes not yet delinquent; (it) Natters affecting title existing at the Effective Date of this Declaration, excluding any mortgage, deed of trust or similar Instrument to which Declarant has subordinated the Enforcement Rights pursuant to Section 2.8 above; 11 I I 9-130 Mus �n . iR�PC�R•".' °A,., ,!^s+t'1r55!A:it^I^"+sr!w�sam.^.v��rn.r*�*ecm+...,-.w.,.,-.e..,.w... (iii) Natters affecting title which ars created, me", "sowed, consented to or requested by Declarant, its successors or assigns, — excluding any mortgage, deed of trust, any 'atter related to issuance of any =r public obligation or similar instrument to which Declarant hu commented without exercise of the Enforcement Rights or to which Declarant has subordinated the Enforcement Rights pursuant to Section 2.8 above; (iv) Matters shown"printed exceptions in the standard forn California land Title Association owner's policy of title insurande. OJ (v) Noninterfering easements for utilities used in ' - connection with the improvements constructed on the Lend. (b) Exercise of Reoureltase Ooe[on. Declarantmay,exercise its ell option to repurchase the land by giving written notice to Granzee of Declarant'■ I election to repurchase within (i) sixty (60) days after receipt of Grantee's notice of proposed -transfer" as provided In Section 2.7 (Transfers) above, (11) '= within ninety (90) days after Declarant receives actual notice of any transfer or attempted transfer in violation of any provision In Section 2.7, (111) within I ninety (90) days commencing thirty (30) days after delivery of notice to Grantee of violation of the Restrictions itemized In Section 2.1(a) if such violation has continued unabated, or (iv) within one hundred eighty (180) days of the g respective commencement or completion dates (as such dates may be extended pursuant to the terns of this Declaration) in the event of Grantee's violation of Section 2.1(c) above. For purposes of this Section 5.3, Declarant's actual - notice shall mean notice to the person to whom notice may be addressed under Section 6.7 of this Declaration, and no other persons. No failure of Declarant to exercise its option upon Grantee's failure to commence construction as provided above shall constitute a waiver of its right to exercise the option upon Grantee's failure to complete construction by the appropriate date, as described above. No failure of Declarant to exercise Its option in the event of any proposed, attempted or actual -transfer- (whether approved by Declarant or not) in violation of Section 2.7 above shall constitute a waiver of Declarant's rights to exercise the option upon any such transfer subject to Section 2.7 which might be proposed, attempted or consummated at a later time. No failure of Declarant to deliver a notice of violation of the Restrictions contained in Section 2.1(a) shall constitute a waiver of Declarant's rights to deliver such notice at any time and exercise the option. Rescission of any notice of violation of the Restrictions itemized in Section 2.1(e) prior to the option becoming exercisable, or If such violation is cured, after the option becoming exercisable shall not constitute waiver of Declarant's right to later notify Grantee of a new violation and exercise the option. Any rescission of notice of exercise of this option shall not constitute waiver of Declarant's right to exercise the option again if a later event causes the option to become exercisable. (c) Expiration and Quitclaim. Unless exercisedby Declarant, this option shall expire upon the twenty fifth (25th) anniversary of the Effective Date. After expiration and upon written request therefor by Grantee, Declarant shall execute and deliver to Grantee a quitclaim deed satisfactory to Declarant relinquishing all of its rights under the option to repurchase portion of this Declaration. (d) Repurchase Price. Imclarant's purchase price for the land upon its exercise of the option provided above, shall be the greater of: (I) An amount including the following: (AI The price attributable to the Land equal to the lesser of (A) $4,400,000 increased or decreased by CPI adjustments which shell be limited to an annualized increase or decrease of five percent (5a) per annum or. (B) the appraised fair market value of the land with the use restricted to the use for which Declarant notifies Grantee at the time of exercise of the option that it intends to use the Land. Declarant shall notify Grantee that it Intends to use the Land either for commercial office or retail use at the time of delivery of the notice of exercise or any time thereafter (Failure of Declarant to specify a use in conjunction with delivery of a notice of exercise of the option shell not invalidate or otherwise affect exercise of the option.). The LPI adj„stment shell be the percentage increase or decrease in the CPI measured from the month which 1s two months prior to the Effective Date to the month which is two months before the date of delivery of the notice of exercise. 12 �I 9-131 The CPI shall be the Consumer Price Index for All Urban Conaumaro Los Angeles- Anaheim•Slversids Metropolitan Area (all items) compiled by the United States Department of Labor. Bureau of Labor Statistics, based upon 1982-84 u 100; provided, however, that if the CPI is modified or changed, then the CPI shall be a converted or substituted index as determivad by Declarant. Plus )B) The fair market value of the Useable 'J Improvesents, if any, an the Land at the time the Option is exercised. The •Usesble Improvements• shall be limited to those interior areas of buildings I� which can be used or converted for use as interior commercial or retail rentable space in accordance with the use which Declarant intends to put the Useable Improvements as designated by Declarant. Fair market value of such Useable Improvements shall be determined using an income method of appraisal based upon comparable rents determined on a useable square foot basis Ear the square footage of the Useable Improvements offset by the cost of any improvements required to convert the use of the building to the use which Declarant notifies Grantee that it intends to put the Usable Improvements. Lees ,I oma )C] All costa, expanses, interest. fees, advances and other aurae required to be paid by Grantee to Declarant hereunder, to the � extent not reimbursed to Declarant by Grantee, shall reduce the amount of any m•1 repurchase price to be paid by Declarant under the term of the repurchase option contained in this Declaration. Or ' (Ii) The unamortized principal amount, plus interest of, and expenses (including without limitation costs to redeem and discharge Including any call premium provided that aggregate call premiums shall be limited I to five percent (5a) of principal) incurred In connection with, any fee" of public obligations where the proceeds have been used only for costs and expenses related to construction of the Specific Facilities on the Land provided that the original principal amount of such public obligations does not exceed $6,000,000.00 and provided that the amount payable to Grantee under this subparagraph (ii) shall be reduced and offset by any and all funds held for the benefit of any holders of public obligations other than fonds held to pay the costa of issuance, if any. i (e) Repurchase Escrow Terms. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consummate the purchase as specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preliminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by I written notice to Grantee through escrow, shall be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the Land or any portion thereof is encumbered by a mortgage or deed of trust, Declarant may unilaterally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Crancee through the foregoing escrow. Any additional amount necessary to satisfy :iuch indebtedness shall be paid by Grantee. Grantee and Declarant shall each pay one-half of the escrow fees. Grantee shall pay for documentary tax stamps, for recording the deed, and for a California Land Title Association standard form owner's coverage policy of title ! insurance in the amount of the purchase price showing title to the land vested in Declarant or Its assigns free and clear of all liens, encumbrances or other title exceptions other than those set forth in this Declaration. Any other costs or expense shall be allocated between thu parties in the manner customary In Orange County, California. (f) Irrevocability. The option created hereby shall be Irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) Warranties. Plane and and Specificetiona. In the event ] i Declarant reacquires all or any portion of the Land, the Specific Facilities or the Ocher Improvements under this Section 5.3, Creates shall assign and transfer to Declarant for no additional consideration, all warranties, plans and specifications relating to the Usable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 I 9-132 --.n.�"uwr:m CTF'I�:YBI•Y.:YS] !1?1.}'���EF����i.F�'�'j. .'T'�Y`�SY:�'�riR�C'. r• • 5.4 Arbitration Procedure. If Declarant and Grantee are mot able to agree to the fair market value of the lend or the Venable Improvements within - thirty (30) days after the date Declarant given Grantee notice of exercise of the option, then the following arbitration procedure shall apply: i [A) Declarant shall within an additional thirty '30) days, at Declarant's coat, deliver to Grantee a written appraisal of the �J applicable highest fair market value with which Declarant agrees, prepared by an independent qualified appraiser (•Declarant'•Appraisal'). She term 'independent qualified appraiser' as wad in this Section shall man a professional Independent appraiser who in a Member of the American Institute of Real Estate ' Appraisers (R.H. or H.A.I.), the Society of Real Estate Appraisers (S.R.A., S.R.P.A., or S.R.E.A.), the American Society of Appraisers (nether or senior member A.S.A.), or smother recognized association of appraisers, or a similar ' association of real estate appraisers that has adopted rules and regulations governing the profesalonal conduct and ethics of its mmbera requiring Independent appraisals without bias to any party or to any result, or has such other education and experience so as to be considered qualified by both parties. [E) If Grantee does not agree with Declarant's Appraisal, Grantee shall notify Declarant in writing of such disagreement in �f writing within ten (10) days after receipt of Declarant'a Appraisal. Within ' thirty (30) days of such notice, Grantee shall at Its case deliver to Declarant a written appraisal of the applicable highest market value with which Grantee agrees, prepared by an independent qualified appraiser ('Grantee's Appraisal'). ' If Grantee fails to deliver Grantee's Appraisal within the time provided, or if Grantee's Appraisal of fair market value is lover than or equal to that contained _ in Declaraut's Appraisal, then Declarant's Appraisal shall constitute the final and binding determination of the applicable fair market value. [C) If Grantee's Appraisal is delivered to Declarant within the time provided and is higher, than Declarant's Appraisal, and if Declarant and Grantee cannot then agree as to the applicable highest fair market value within ten (10) days after delivery of Grantee's Appraisal to Declarant, then Declarant and Grantee shall within ten (10) days thereafter mutually agree on a third independent qualified appraiser acceptable to them to make an independent determination of the applicable highest fair market value (the "Final Appraisal"). Such Final Appraisal shall be delivered to Declarant and Grantee within thirty (30) days of the selection of the third appraiser. If Declarant and Grantee do not agree on a third independent qualified appraiser acceptable to them as specified above, then such third appraiser shall be appointed in accordance with the provisions of California Code of Civil Procedure Section 1281.6, or any successor statute, and in such event the independent determination of the highest fait market value made by the third appraiser so appointed shall be the "Final Appraisal.' If the third appraiser most be appointed pursuant to the provisions of the California Code of Civil Procedure Section 1281.6, or any successor statute. Declarant shall file a petition to appoint the third appraiser with the Superior Court of Orange County, California ("Court"), and shall set the hearing on the petition on the earliest date permitted by the Court's calendar and by the applicable notice period required by law. Declarant and Grantee shall share equally the cost of the Final Appraisal. If the Final Appraisal states a fair market value between that of Declarent's Appraisal and Grantee's Appraisal, the Final Appraisal shall be the final and binding determination of the applicable market value. If the fair market value established in the Final Appraisal in higher than (1) the fair market value established in Grantee's Appraisal or is lover than (2) the fair market value established In Declarant's Appraisal, or equal to either, then the final determination of the applicable fair market value shall be (1) or (2) depending upon which one is equal or closer to the fair market value established in the Final Appraisal. (D) She procedure set forth above for determining �I the applicable market value shall be the exclusive procedure therefor and shall be final, binding and nonappealable unless ,xpraosly waived by both parties in writing. It is the responsibility of Grantee to ensure that this procedure for determining highest fair market value is inscituted in sufficient time to satisfy any commitments, agreements or needs of Grantee. 5.5 Waive . No Waiver by Declarant of a breach of any of the Restrictions by Grantee and no delay or failure to enforce any of the 14 it i 9-133 Restrictions shall be construed or held to be a valvar of any succesdiuq or ! preceding breach of the ease or any other of the Restrictions. No waiver of any breach or default of Grantse hereunder shall be Implied from any emission by Declarant to tale any actio. on aceeuot of such breach or default if such breach or default persists or is repeated, and me express valvar shall affect a breach or default other than as specified In said waiver. The conseut or approval by l neclarant to or of any act by Grantee requiring Declarant'' consent or approval ! 1 shall not be deemed to waive or render unnecessary Declarant'' consent or J approval to or of any subsequent similar sets by Grantee. I 5.6 Coate of Enforcement. In the event any legal or equitable action or proceeding shall be instituted between Declarant and Grantee to enforce, any provision of this Declaration, the parry prevailing in such action shall ry be I �' entitled to recover from the losing parall of its costs, including court costa and reasonable attorneys' fees. ' 5.7 Rishts of Lenders. No breach or violation of the Restrictions shall defeat or render invalid the lien of any mortgage, deed of trust or similar Instrument securing a loan made in good faith and for value with respect to the development or permanent financing of the land or any portion thereof; provided, however, that this Declaration and all provisions hereof shall be binding upon and effective against any subsequent owner or other occupant of the Land or portion thereof whose title is acquired by foreclosure, trustee's sale or deed in lieu of foreclosure but (a) such subsequent owner shall have a reasonable time after acquiring title in which to cure any violations or correct and change any facts giving rise to Declarant's rights under this Declaration occurring prior to such transfer of title and which are reasonably capable of being cured or 'I changed provided, that such subsequent owner diligently acts to effect sucb cure or change (and in the event of such diligent and timely cure, such subsequent I owner shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed), and (b) Sections 5.1(a) (Damages) and 5.3 (Option to Repurchase the Land) shall not be i applicable as to such subsequent owner with regard to any noncurable default occurring prior to the time such subsequent owner acquired title. Notwithstanding the foregoing, any such subsequent owner shall be required to use the Land in accordance with the restrictions set forth in Section 2.1(a) and diligently complete construction of any Specific Facilities and Other Improvements which are incomplete on the date such subsequent owner acquires title, all subject to the requirements contained in this Declaration, except rhe time periods referred to in Section 2.1(c) shall be reasonably extended. For purposes of this Section, the construction or installation of any Improvement in violation of the requirements of this Declaration shall be deemed -curable" so long as reconstruction, repair or replacement in a manner consistent with the requirements of this Declaration is physically and legally possible (without respect to cost). i 5.8 Advances. Declarant shall be entitled to advance any sums Declarant in its sole discretion deems necessary to protect and preserve the security for its rights and interest under this Declaration (including but not limited to sums for completion of construction of the Specific Facilities or any offsite improvements, any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbran=a or liens or other charges on any portion of the Land which appear to be prior to Declarant'' rights and interest under this Declaration), all of which advnneea together with interest at the maximum contract rate then permitted by lav shall be paid to Declarant upon demand. ARTICLE 6. GENERAL PROVISIONS. 6.1 Unavoidable Delay. Any prevention, delay or stoppage in the work of building the Specific Facilities, the Other Improvements and any other related Improvements or other work as provided for in this Declaration caused by acts of God, war, inability to obtain labor or materials or reasonable substitutes therefor, or other similar matters or causes beyond the reasonable control of Crantee shell extend the time within which this Declaration requires certain acts to be performed for a period or periods equal to any period of such prevention, delay or stoppage, but not to exceed in the aggregate one year; provided, ho4zver, that nothing In this Section shall excuse the prompt payment of any and all amounts due from Grantee to Declarant as required herein or the performance of any act rendered difficult because of the financial condition of 15 I 9-134 . a:a..'SeOL�YggR'SI4l!✓v^oM:Rt'1v�lS�R3em.ear•ren-n,*n,rrtr„pr-.,,.,...,,,�•.,caa„a<.,....,.,..,...,.�._...�_, - Cremes or because of any inability of Grantee to obtain funding from say source. Without limiting the generality of the foregoing, in no event shall Crantes's —_ inability to obtain construction or permanent financing for development of the + land, or a portion thereof, constitute an unavoidable delay pursuant to this J . Section. Furthermore, in no went shall any extension of any period of time be deemed to have occurred unless Grantee shall have given written notice to Doclarant within fifteen (15) days following any such delay, anteing forth rhe r facts giving rime to such extension; and provided further that the period of tar J for exercise of Declarant's rights shall be commensurately extended. 6.2 Continuous Operations. Grantee shall proceed continuously - diligently in accordance with the terns and conditions of this Declaration. In the event Grantee does not proceed continuously and diligently, such failure to I so proceed may, at the option of Declarant, be considered an event of default herein, except as such failure is excused by reason of any unavoidable delay as ' oat forth in the Section hereof entitled "Unavoidable Delay." 6.3 Covenants to Run With the land: Term. ' (a) Covenants to Run With the Land. The rand shell be held, ! improved, developed, conveyed. hypothecated, encumbered, leaned, rented, wed and occupied subject to the Reatrictfons set forth in this Declaration. The ' ! Restrictions are for the benefit of the Benefitted Property and are intended and shall be construed ae covenants and conditions running with and binding the Land and equitable servitudes upon the Land and every part thereof. Furthermore, all and each of the Restrictions shall be binding upon and burden all persons having or acquiring any right, title or interest 1n the land, or any part thereof, and their successors and assigns, and shall inure to the benefit of the Benefitted Property and the owners of the Benefitted Property, their successors and assigns, and shall be enforceable by Declarant and its successors and assigns, all upon the texas, provisions and conditions set forth herein. (b) Term. All of the terms and provisions set forth in this Declaration shall continue in full force and effect in perpetuity, except that Declarant's 'Enforcement Rights' (as described in Section 2.8 above) shall terminate twenty-five (25) years from the Effective Date hereof. (The provisions of this Declaration which shall survive in perpetuity shall include, without limitation Article 1, Sections 2.1 through 2.6, inclusive, 2.9, 2.10, Article 3, Sections 5.1. 5.2, 5.5 through 5.8, inclusive, and thin Article 6.) 6.4 Assignment by Declarant. Declarant may assign any of its rights j and powers under this Declaration to any fee owner of any portion of the Benefitted Property, so long as such person or entity In writing agrees to assume the duties of Declarant pertaining to the particular rights and powers assigned. .. Upon the recordation of such writing accepting such assignment and asauaing such !I duties, such person or entity shall, to the extent of such assignment, have the same rights and powers and be subject to the same obligations and duties as are given to and assumed by Declarant herein. Without limiting the generality of the foregoing, Declarant any make such assignment as to the entire Iand or to any ' portion thereof. Unless specifically assigned in writing as stated in this paragraph, Declarant alone shall have the right to enforce the Restrictions and the other provisions of this Declaration or to recover damages or other amounts for violation of the Restrictions or breach of Grantee's duties hereunder. 6.5 Amendments. Except as provided in this Declaration concerning (a) substitution of other real property as the Benefitted Property, (b) release of any portion or all of the Land from this Declaration, (c) reacquisition of the Land by Declarant and (d) assignment by Declarant of its rights under this Declaration, this Declaration my be coral noted, extended or "ended only by a writing executed by Declarant and Grantee and recorded against the Land. 6.6 Release. (a) Release by Declarer t. Declarant may release any portion of the Land from this Declaration at any time and for any reason withqut the approval of Grantee. (b) Not Acoitcable, to Declarant. Notwithstanding anything herein contained to the contrary, if Declarant reacquires title to the land or any portion thereof at any time after the date hereof and record(,) a notice of 16 9-135 •tersinotion of those kestrietions in the Office of the Canty Recorder of Oremge Canty, California, those Restrictions shall cesse and terminate and be of no further force or effect as to Declarant ante such property, effective as of the date of such recordation. 6.7 Notice. All notices, consents, requests, demands and other n cammeaniutions provided for herein shall be in writing and shall be dassed to ■ d have been duly given if and when personally served or ferry eight (48) boors 7••/ after being sane by United States registered sail, return reeelpe requested, postage prepared, to the other party at the following respeetive addresses: ' - DECIABAMr: THE IRVINE COMPANY ' c/o IRVINE LAND MANACEKERr COMPANY Post Office Box I Newport Beach, California 92658-8904 ' Attention: Prosidont/IMC GRANTER: City of Newport Beach ' 3300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92659-1768 or at such other address as Declarant or Grantee say designate to the other to _ writing in accordance with the provision of this Section. 6.8 Governing fans. This Declaration shall be governed by and construed under the laws of the State of California. 6-9 Severabillty. In the event that any portion of this Declaration shall become Illegal, null or void or against any public policy, for any reason, or shall be hold by any court of competent jurisdiction to be illegal, mill or void or against any public policy, the remaining portions o£ this Declaration shall not be affected thereby and shall remain in force and effect to the full extent permitted by law. I 6.10 Captions. The captions used herein are for convenience only and are not a part of this Declaration and do not in any way limit or amplify the terms and provisions hereof. 6.11 Entire Agreement. This Declaration, including Exhibits attached hereto which are incorporated herein by this reference, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein. The forgoing sentence shall in no way affect the validity of the Agreement pursuant to which Grantee acquired the Land or any instruments executed In connection therewith. 6.12 Gender and Number. In this Declaration (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural include one another. 6.13 Time of the Essence. Tine is of the essence of each provision of this Declaration in which time is an element. 17 9-136 IN WITNESS WHEREOF, the undersigned have executed this Declaration i as of the date written below. 'DECLARANT' .&-ARM. J THE IEVIEE COMPANY. CITY OF MSWPOET BEACA, i n a Hiebigan corporation a California munie pal corporation I! By: !:LTtt�%L4A'L Ey: .Oen r�d:e�����ATrEST� I Its: Yta aewf I . mayor U ' By: : Its: Q6 Pei V By: I ( Ica: lCify Clerk r �C1 �'4T APPEO ED I �' O By: ' Ite: City Manager i u a`�+ APPAov TFORM: eIcoa - f By: res: City Attorney STATE OF CALIFORNIA 1 �/j�� �� coI7NTY OF (/ H �+ j On thia,&dday of ,�W In the year 197{-before no. the undersigned, a Notary Public a d for said State, personally peared 'f. and fly �. personally knewn to r or proved to ma on the bass of satisfy eo evidence) to be the pera o x eecuted the within instrument as,5iioGJln�- and respectively, on behalf of THE IRVINE COMPANY and acknowledged to ne that oyd corporation executed it. i WITNESS my head and official seal. - - - - R �EY � masxE WOPANGE ecmWM� . Notary Public in and fors-id State I I I enasnut,on. Is 9-137 an= of CAW O1IIa ) 7 ) can COUNTY OF ORAMOB ) _ On Iferoh 19. 199], before Me, the Undersigned, a Notary ' Public in and for the state, personally appeared EhLLAaLMM, U. known to Y to be the Mayor, Robert L- Wv n, known to 7e to be the City Manager, aM w■sea E- Raevie_ known to me to be the City Clerk, on behalf of the CSTY OF N6NPON.'P BEMS, which executed the _ within instrument pursuant to governing lar and a resolution of its i board of directors and acknowledge to me that the CITY Or NEWPORT Be1CM executed it. WITNESS =y hand and official a" I OFNIC" i SEAL. 6 Notary Public in 4pa ror 8 Ylkldli LTN mkIFR A➢WARK0OYtaea eewEoxen y�edm..eaxuwx I I i i 9-138 n 1' 1 1- =1 -1 i R7DLIBIT 1 To Declaration of Special Restrictions Legal Description of 'Benefitted Property• 9-139 EIORBIT 'I' LHCAL DESCRIPTION BENEFITED PROPERTY FOR THE n CITY OF NEWPORT BEACH LIBRARY SITE ' I Parcel 1 (500 and 550 Newport Center Drive and Adjacent Land) IJ� That portion of Block 93 of Irvine's Subdivision 1n the City of Newport Beach, -- County of Orange, State of California, as shown on a sup filed in Book i, Page 88 of Miscellaneous Records Maps in the Office of the County Recorder of said ' Orange County, described as follows: ' BEGINNING at the easterly terminus of that certain course shown as having a bearing and length of -South 80'14138• East 91.45 feet' 1n the northerly right- of-way line of San Nicolas Drive on a map of Tract No. 6015, filed In Book 239, r Pages 28 through 41 of Miscellaneous Maps in said Office of the County Retarder; thence along said right line and along the easterly right-of-way line of Newport Center Drive East, the southerly right-of-way line of Santa Roo& Drive and the southwesterly right-of-way line of San Joaquin Hills Road, all as shown on said ' map of Tract No. 6015 through the following courses: North 80'14.38• West 91.45 feet to the beginning of a tangent curve concave northeasterly and having a radius of 25.00 feet; thence along said curve westerly and northwesterly 38.16 feet through a central angle of 87'26'49• to a point of reverse curvature with e curve concave westerly and having a radius of 1670.00 feet, a radial line of said curve from said point bears North 82'47149• West; thence along said curve northerly 472.13 foot through a central angle of 16'11'54• to a point of reverse curvature with a curve concave southeasterly and having a radius of 25.00 feet, a radial line of said curve from said point bears North 81'00117• East; thence along said curve northerly and northeasterly 38.16 feet through a central angle of 87'26'49'; thence tangent from said curve North 78'27'06• East 69.97 feet to the beginning of a tangent curve concave northwesterly and having a radius of 825.50 feet; thence along said curve northeasterly 444.81 feet through a central angle of 30'52'23'; thence tangent from said curve North 47'34'43• East 2.20 feet to the beginning of a tangent curve concave southerly and having a radius of 25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through a central angle of 89'17126• to a point of reverse curvature with a curve concave northeasterly and having a radius of 6072.50 feet, a radial line of said curve from said point bears North 46'52'09• East; thence along said curve southeasterly 329.29 feet through a central angel of 3'06'25'; thence tangent from said curve South 46'14116' East 31.81 feet to the northerly corner of Parcel 1 as shown on a map filed in Book 13, Page 41 of Parcel Maps in said Office of the County Recorder; thence leaving said southwesterly right-of-vay line of San Joaquin Hills Road and along the boundary of said Parcel 1 the following courses: South 44'06'14' West 140.00 feet; thence south 45'53146• East 183.00 feet to the beginning of a tangent curve concave northerly and having a radius of 25.00 feet; thence along said curve southeasterly and easterly 39.27 fent through a central angle of 90'00100•; thence tangent from said curve North 44'06'14• East 103.60 feet to the beginning of a tangent curve concave northwesterly and having a radius of 25.00 feet; thence along said curve northeasterly 13.23 feet through a central angle of 30'19.01• to a ran-tangent intersection with said southwesterly right-of-way of Sen Joaquin Hills Road; thence leaving said boundary and along said right-of-way line South 46'14'16• Beat 48.72 feet to the northerly corner of Parcel I as shown an a cap filed in Book 21, Page 18 of Parcel Haps in said Office of the county Recorder, said corner being a point in a non-tangent curve concave southeasterly and having a radius of 25.00 feet, e redial line of said curve from said point bears South 16'06'05• East; thence along the boundary of amid Parcel I the following courses; along said curve southwesterly 13.00 feet through a centra). angle of 29'47.41•; thence tangent from said curve South 44'D6'14' West 104.09 feet to the beginning of a tangent curve concave easterly and having a radius of 25.00 feet; thence along said curve southwesterly and southerly 39.27 feet through a central angle of 90'000000; thence tangent from said curve South 45'53'46• East 186.00 fact to the westerly corner of Parcel 1 as shown on a map filed in Book 54, Page 23 of Parcel Maps In said Office of County Recorder; thence leaving the boundary of Parcel 1 as shown �Ibn I L.a.l D..nIptl° of -em.t R.e rre rp- aoesepap.on 1 motb II, Int 9-140 •on said nap Filed in Book 21, Page 18 of Parcel Maps and dons the boundary of Parcel 1 as shorn en maid nap filed in Book 54, Page 23 of Parcel Mspm South 45'53.46• East 68.09 feet to the beginning of a tangent curve concave westerly and having a radius of 40.00 feet; theme continuing along said boundary and said J curve southeasterly 36.39 feet through a central angle of 52'07.23' to the northwesterly corner of Parcel 3 as shown on Parcel Map No. 84-706 filed in Book 192, Pages 1 and 2 of Parcel Maps in said Office of the Comty Recorder, a radial ULine of said curve from said corner bears North 93'46123• West; thence along the boundary of said Parcel 3 and Parcel 2 as shown en said Parcel Map the following Courses: continuing along said curve southerly 26.44 feet through a central ' angel of 37'52137•; thence tangent from said curve South 44'06'140 West 289.00 ' feet to the northeasterly corner of Parcel 1 as shown on a map filed in Bs- k 27. Page 43 of Parcel Maps in said Office of the County Recorder, acid corner being ee the beginning of a curve tangent to last said course, concave northerly and ' having a radius of 40.00 feet; thence leaving the boundary of said Parcel 2 and ' along the boundary of said Parcel 1 the following courses: along said curve southwesterly and westerly 62.83 feet through a central angel of 90'00'001; thence tangent from said curve North 45'53.46• West 14.11 feet to the beginning of a tangent curve concave southerly and having a radius of 25.00 feet; thence along said curve northwesterly and westerly 39.27 feet through a central angle of 90'00'00•; thence tangent from said curve South 44'06.14• Went 99.44 feet to Va the beginning of a tangent curve concave southeasterly and having a radius of ' 25.00 feet; thence along said curve southwesterly 13.46 feet to a non-tangent Intersection with the northeasterly right-of-ray line of said San Nicolas Drive as described in a Grant of Easement to the City of Newport Beech recorded in gooks 8987, Page 836 of Official Records in said Office of the County Recorder; thence I' leaving said boundary of Parcel 1 and along said right-of-way line as described In said Grant of Easement and as shown on said map of Tract No, 6015 the '- following courses: North 46'44'00• West 92.34 feet to the beginning of a tangent curve concave southwesterly and having a radius of 950.50 feet; thence along said curve northwesterly 555.92 feet through a central angle of 33'30138' to the POINT OF BEGINNING. Parcel 2 (Fashion Island Shopping Center) That portion of Tract 6015, in the City of Newport Beach, County of Orange, State of California, as per nap filed in Book 239. pages 28 through 41, Miscellaneous Maps, records of said County, lying within the following described boundary: Comaencing at the center line intersection of Santa Rosa Drive with Newport Center Drive East as shown on said map; thence south 78'27'060 West 48.00 feet along the Westerly prolongation of the center line of said Santa Rosa Drive to a point on a non-tangent curve concave, Westerly and having a radius of 1557.00 feet, said point being the True Point of Beginning, a radial to said point bears North 78'27'06• East, said curve being concentric with the canter line of said Newport Center Drive East; thence Southerly 1314.59 feet along amid curve through an angle of 48'22'31' to the beginning of s compound curve concave Northerly and having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve through an angle of 110'52'24• to the beginning of a compound curve concave Easterly and having a radius of 1757.00 feet: thence Northerly 1248.07 feet along said curve through an angel of 40'41958• ti the beginning of a compound curve concave Southerly and having a radius of 897.00 feat; thence Easterly 2438.09 feet along said curve through an angle ol: 155'43'57• to the beginning of a compound curve concave Westerly and Savin; a radius of 1557.00 feet; thence Southerly 117.38 fact along said curve through an angle of 4'19'10' to the True Point of Beginning. aeneu [ L•r•r o..cr�prrm •e •seem..C mrwr.on 2 rYrre IS.[[. IM 9-141 n ►J Ir -1 1 I MMIBtT 2 To Declaration of Special Restrictions i Requirasents for Specific Facilities I 9-142 1 f� B19HRB!ffiJIS FOR SPECIFIC FACILITIES ' Description of Specific Facilities: A free public library and related driveways, aeeeaaways and laodseaping. Permitted Use: Public Library and related parking of private passenger automobiles during the hours from 6:00 a.m. to 11:30 p.m, daily. Maximum No. of Buildings: 1 HinimHm Cross Floor Area: 10,000 square feet* Hamm m Cross Floor Area: 65,000 square feet* I Maximum Floor Area Ratio: 50 percent I Commencement Date: 12 months from Effective Date Completion Date: 36 months from Effective Date * By setting forth any required minimum or maximm groes foot area above, Declarant does not thereby represent or warrant that Buyer shall be able to develop the Land for such density. REQUIREMENTS FOR OTHER IMPROV@NE7fS Those improvements required by Exht'2it I to the Exchange Agreement. f ' sp.clLL wtilcuar sauna s sP«anc r«�uu« eoowro.on, a«a aH, >Iw 9-143 U � 11 1- �i EXHIBIT 3 To Declaration of Special Restrictions II Subordination Agreeoent I i 1 I I =— ei 9-144 1. • il'ban Recorded Nail To: THE IRVINE COMPANY 550 Newport Center Drive Newport Beach, CA 92660 �J Attention: President/IWC -- Space above this line for Recorder's use A.P. No. 1 r' SUBORDINATION AGREEMENT NOTICE; THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS AND INTERESTS AND YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOVER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. I. PARTIES AND DATE. ' This Subordination Agreement (-Agreement") is made this day of 19 by the CITY OF NEWPORT BEACH, a California municipal I—' corporation ('Owner'), owner of the 'Land* (as defined below), and THE IRVINE COMPANY, a Michigan corporation (•TIC•), declarant under the Declaration (defined I below). II. ACKNOWlEDCNFNIS II I Owner has executed a Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase (the 'Declaration') dated , 19_, and recorded on as Instrument No. in the Official Records of Orange County California as an encumbrance on the title of the real property described as: I Parcel in the City of Newport Beach, County of Orange. State of California, as shown on a parcel map filed in Book , Pages_ to Inclusive, of Parcel Napa, in the office of the County Recorder I of Orange County (the *Land"). Owner has executed, or is about to execute, certain loan documents ("Loan Documents') dated 19_ with or in favor of (-Lender') to obtain and evidence a loan (the 'Loan•) from Lender in the amount of $ The Loan Documents have all been delivered to TIC and include, without limitation, a Deed of Trust ([ha "Deed of Trust-) to be recorded concurrently with this Agreement es security for the obligations evidenced by the Loan Documents. Lander is incurring its obligations in connection with the Loan in good faith and for value pursuant to an agreement with Owner, on which TIC is relying and which is memorialized in the Loan Documents, that the proceeds of the Loan will be expended solely for financing or refinancing of construction of certain improvements on the Land, the plans and specifications for which have been, or will, prior to the commencement of construction, be approved by TIC, all in accordance with the provisions of the Loan Documents, and for no other purpose unless approved by TIC in writing in Its sole discretion. _ A condition precedent to Lander's agreement to make the Loan in that the Deed of Trust shall be and remain at all times a lion or charge upon the Land prior and superior to certain enforcement rights and remedies of TIC under the Declaration. TIC and Owner agree that it is to their mutual benefit that Lander make the loan to Owner. This Agreement is made in consideration of the mutual benefits ep.tl.l e•.t'a.0 o. tw,mlt l aw.talnalrn 4n�.nuLrte II. lMi 9-145 to TIC and Owner resulting from the loan and for other valuable consideration, the receipt and sufficiency of which is acknowledged by TIC and Caner. � . --- L1I. soBoanit°.:TION. J The Dead of Trust and /q any remake or •ateosiona thereof shall be and 1 1 =Dain at all time a lion or charge on the Lead prior and superior to Declarant's right of first refusal contained In Article 4 of the Declaration and U the option to repurchus contained in Section 5.3 of the Declaration, (collectively, the mEnEorcenant Rights-); provided, however, that (1) the UDeclaration (including the Enforcement Rights) shall be binding upon and I �— effective againat any subsequent owner or other occupant of the land or day portion thereof whose title is acquired by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise as provided in Section 5.7 of the Declaration, and (2) any subsequent owner shall have the cure rights as provided in Section 5.7. Notwithstanding anything to the contrary contained in this Agreement, lender's foreclosure or similar or related proceeding under the Deed of Trust shall not extinguish the Declaration or TIC's Enforcement Rights, all of which 1 shall survive such proceeding and shall be binding upon any aubsequent owner acquiring tltls from Lender as stated above. IV. MISCELLANEOUS A. Entire Arreement. _ This Agreement shall be the whole and only agreement between TIC and Omar with regard to the subordination of TIC's Enforcement Rights and remedies under the Declaration to the lien or charge of the Dead of Trust. B. Attorneys' Fees. The prevailing party in any litigation respecting this Agreement shall be entitled to reimbursement of attorney's fees and costs, whether or not taxable, incurred in the litigation. I •TIC" "OWNER' THE IRVINE COMPANY. CITY OF NEWPORT BEACH a Michigan corporation By: By: Its: Its: Mayor I By: ATTEST: i Its: By: Its: APPROVED AS TO FORM: I By: Its: City Attorney I I Sya.l b.n...tt. I oe11 q3 2 smo.ala.tlw,Na,� •. uwr.D 11, re 9-146 BUTS OF CALIFORNIA ) I. ).as i OOONIIC OF ) I , On 19_, before r, the undersigned, a Notary Public in U and for said State, personally appeared and personally known to W (or proved to r on the Ubasis of satisfactory evidence) to be the persona who executed the within i ' Instrument as and on behalf of YNR i IRVINE COMPANY, a Michigan corporation, and acknowledged to se th-t said as� corporation executed it. � WITNESS ry hand and official seal. Notary Public in and for said State 0 STATE OF CALIFORNIA ).ss COUNTY OF ) On 19_, before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Mayor, on behalf of City of Newport Beach, which executed the within lnstrument pursuant to governing law and a resolution of its board of directors and acknowledged to an that the City of Newport Beach executed Lt. WITNESS my hand and official seal. �I Notary Public in and for said State f. <.S I ei i epr1LL wYlrUm j a4 Uu i RDeed110.erL I t,iEmrelomt/m MrmmmUlucA Il, tmei 9-147