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HomeMy WebLinkAbout2016-24 - Approving Development Agreement No. DA2016-001 for the 100-Unit Museum House Multi-Family Residential Project Located at 850 San Clemente Drive (PA2015-152)ORDINANCE NO. 2016-24 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. DA2016-001 FOR THE 100 -UNIT MUSEUM HOUSE MULTI -FAMILY RESIDENTIAL PROJECT LOCATED AT 850 SAN CLEMENTE DRIVE (PA2015- 152) WHEREAS, an application was filed by Related California Urban Housing, LLC (Applicant) with respect to property located at 850 San Clemente Drive, and legally described as Parcel 2 of the Parcel Map, in the City of Newport Beach, County of Orange (County), State of California, as shown on a map recorded in Book 81, Pages 8 and 9 of Parcel Maps, in the office of the County Recorder of said County; WHEREAS, the project includes demolition of the existing 23,632 -square -foot Orange County Museum of Art (OCMA) building to accommodate the development of a 25 -story, 100 -unit residential condominium building with two levels of subterranean parking. The Applicant requests the following approvals from the City of Newport Beach (City): • General Plan Amendment (GPA) — To amend Anomaly No. 49 to remove the property and to reduce the allowed development from 45,208 square feet to 21,576 square feet (Table LU2 and associated figures), and to change the land use designation for the property from Private Institutional (PI) to Multi -Unit Residential (RM -100) with a maximum development limit of 100 units. • Planned Community Development Plan Amendment (Zoning) — To change the San Joaquin Plaza Planned Community (PC) land use designation from Civic/Cultural/Professional/Office to Multi -Unit Residential. The PC amendment also includes new residential development standards including a 295 -foot height limit measured from finished grade. • Tentative Vesting Tract Map — To allow the 100 individual dwelling units to be sold separately as condominiums. • Site Development Review — To ensure site development is in accordance with the applicable planned community and zoning code development standards and regulations pursuant to Newport Beach Municipal Code (NBMC) Section 20.52.080 (Site Development Reviews). • Traffic Study — To study potential traffic impacts pursuant to the City of Newport Beach Traffic Phasing Ordinance. • Development Agreement — To voluntarily enter into a Development Agreement to provide surety and consistency in the future development of the Applicant's project. • Environmental Impact Report (EIR) — To address reasonably foreseeable environmental impacts resulting from the legislative and project specific discretionary approvals pursuant to the California Environmental Quality Act (CEQA). • Revoke Use Permit - To revoke Use Permit No. UP2005-017 (PA2005-086), which allows beer and wine sales at the museum. • Revoke Modification Permit - To revoke Modification Permit No. MD2004-059 (PA2004-184), which allows flagpoles/signage beyond that allowed by the NBMC; Ordinance No. 2016-24 Page 2 of 4 WHEREAS, the subject property is located within the PC -19 (San Joaquin Plaza) Zoning District and the General Plan Land Use Element category is PI (Private Institutional); WHEREAS, the subject property is not located within the coastal zone; WHEREAS, a study session was held on April 7, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach to introduce the project to the Planning Commission. No action was taken at the study session; WHEREAS, a study session was held on September 1, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach to update the status of the project to the Planning Commission and review the conclusions of the Draft EIR. No action was taken at the study session; WHEREAS, a public hearing was held on October 20, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, the Planning Commission adopted Resolution No. 2033 by a unanimous vote of 7-0 recommending approval of the proposed project to the City Council; WHEREAS, a public hearing was held on November 29, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; WHEREAS, the City Council adopted City Council Resolution No. 2016-127 approving General Plan Amendment No. GP2015-001 to amend Anomaly No. 49 to remove the property and to reduce the allowed development from 45,208 square feet to 21,576 square feet (Table LU2 and associated figures), and to change the land use designation for the property from Private Institutional (PI) to Multi -Unit Residential (RM -100) with a maximum development limit of 100 units; WHEREAS, the City Council adopted Ordinance No. 2016-23 to change the San Joaquin Plaza Planned Community (PC) land use designation from Civic/Cultural/Professional/Office to Multi -Unit Residential. The PC amendment also includes new residential development standards including a 295 -foot height limit measured from finished grade; Ordinance No. 2016-24 Page 3 of 4 WHEREAS, a development agreement is requested by the applicant as the project would add more than 50 new residential dwelling units within Statistical Area L1 (Newport Center); WHEREAS, the proposed project is consistent with the goals and policies of the Newport Beach General Plan. The City Council concurs with the conclusion of the consistency analysis of the proposed project with these goals and policies provided in the Museum Residential Project Final EIR (SCH No. 2016021023); and WHEREAS, the Development Agreement includes all the mandatory elements for consideration and public benefits that are appropriate to support conveying the vested development rights consistent with the General Plan, NBMC Chapter 15.45, and Government Code Sections 65864 et. seq. NOW, THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council has considered the recommendation of the Planning Commission and has determined that modifications to the project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation. Section 2: The City Council of the City of Newport Beach hereby approves Development Agreement No. DA2016-001, as set forth in Exhibit "A," which is attached hereto and incorporated herein by reference. Section 3: The recitals provided in this ordinance are true and correct and are incorporated into the operative part of this ordinance. Section 4: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: The Museum House Project Final EIR (SCH No. 2016021023) was prepared for the project in compliance with CEQA, the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2016-126, the City Council, having final approval authority over the project, adopted and certified as complete and adequate the Museum House Project Final Environmental Impact Report (SCH No. 2016021023) and adopted "Mitigation Monitoring and Reporting Program." Resolution No. 2016-126 is hereby incorporated by reference. Ordinance No. 2016-24 Page 4 of 4 Section 6: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a special meeting of the City Council of the City of Newport Beach held on the 29th day of November 2016, and adopted at a regular meeting on the 13th day of December, 2016, by the following vote, to -wit: AYES: Council Member Peotter, Council Member Duffield Council Member Selich Mayor Pro Tem Muldoon, Mayor Dixon NAYS: Council Member Petros ABSTAIN: Council Member Curry ATTEST: Uy�lJl ` LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE r- AARON C. HARP, CITY ATTORNEY Exhibit A: Development Agreement EXHIBIT "A" DEVELOPMENT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: City Clerk DRAFT (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and OCMA URBAN HOUSING, LLC concerning 850 & 856 SAN CLEMENTE DRIVE -1- DEVELOPMENT AGREEMENT (Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government Code Sections 65864-65869.5) This DEVELOPMENT AGREEMENT ("Agreement") is dated for reference purposes as of the —day of 2016 ("Agreement Date"), and is being entered into by and between the CITY OF NEWPORT BEACH ("City") and OCMA URBAN HOUSING, LLC ("Developer'). City and Developer are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Developer is in the process of purchasing that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as the 1.99 - acre Museum House project site, located at 850 San Clemente Drive (APN # 442-261-05), and generally bounded by -Santa Cruz Drive on the east; San Clemente Drive on the south, and Santa Barbara Drive to the west ("Property"). As of the Agreement Date, the Property is owned by the Orange County Museum of Art ("OCMA"), a California nonprofit public benefit corporation, but Developer has a legal or equitable interest in the Property and therefore is authorized to enter into this Agreement pursuant to Government Code Section 65865 and Newport Beach Municipal Code Chapter 15.45. The Property is more particularly described in the legal description attached hereto as Exhibit A and is depicted on the site map attached hereto as Exhibit B. B. OCMA owns that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as the 0.9 -acre parcel, located at 856 San Clemente Drive (APN # 442-261-17), and generally bounded by Santa Cruz Drive on the east, San Clemente Drive on the south, and Santa Barbara Drive to the west ("0.9 Acre Parcel"). The 0.9 Acre Parcel is more particularly described in the legal description attached hereto as Exhibit C and is depicted on the site map attached hereto as Exhibit B. In connection with this Agreement, OCMA has agreed to enter into that certain Donation Agreement attached hereto as Exhibit D pursuant to which OCMA will donate the 0.9 Acre Parcel to the City on the terms and subject to the conditions set forth therein. C. To encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code Sections 65864-65869.5 ("Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. D. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" ("Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance. E. As detailed in Section 4 of this Agreement and the Development Plans (as defined herein), and in consideration of the significant benefits outlined in this Agreement, Developer has agreed to pay a Public Benefit Fee (as defined herein) in the sum of seventy-one thousand and one -hundred dollars ($71,100) per residential dwelling unit, or seven -million, one -hundred and ten thousand dollars ($7,110,000) for the one -hundred (100) residential dwelling units proposed by the Project (as defined herein). Developer shall pay the Public Benefit Fee to the City as follows: The Developer shall pay the entire Public Benefit Fee to City prior to the issuance of a grading permit for the Project. F. This Agreement is consistent with the City of Newport Beach General Plan, including, without limitation, the Property's proposed "Multiple Residential (RM -100)" General Plan designation that is being adopted and approved by the City Council concurrently with its approval of this Agreement to establish appropriate standards to regulate land use and development of the Property consistent with the General Plan. G. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, the City's police power; (iv) is consistent and has been approved consistent with the Project's final Environmental Impact Report (SCH# 2016021023) ("EIR") that has been certified by the City Council on or before the Agreement Date, all of which analyze the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures related thereto; and (v) is consistent and has been approved consistent with provisions of California Government Code Section 65867 and City of Newport Beach Municipal Code Chapter 15.45. H. On October 20, 2016, City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. I. On November 29, 2016, the City Council also held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Developer, and members of the public. On December 13, 2016, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2016-24 ("Adopting Ordinance"), finding this Agreement consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Developer agree as follows: Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: 2 "0.9 Acre Parcel" is located at 856 San Clemente Drive in the City, as described in Exhibit C and depicted on Exhibit B. "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. 2016-24 approving and adopting this Agreement. "Agreement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean the date first written above, which date is the date the City Council adopted the Adopting Ordinance. "CEQA" shall mean the California Environmental Quality Act (California Public Resources Code sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seq.), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California municipal corporation and charter city, and any successor or assignee of the rights and obligations of the City of Newport Beach hereunder. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. 3 "Developer" shall mean OCMA Urban Housing, LLC, a California limited liability corporation, and any successor or assignee to all or any portion of its right, title, and/or interest in and to ownership of all or a portion of the Property and/or the Project. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agreement Statute" shall mean California Government Code Sections 65864-65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. "Development Plan" shall mean all of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the following: (1) the Development rights as provided under this Agreement; (2) General Plan Amendment No. 2015-001 (amending the land use designation from Private Institutional (PI) to Multiple Residential (RM -100) with a maximum development limit of 100 units); (3) San Joaquin Planned Community Development Plan Amendment No. PD 2015-001 (amending the San Joaquin Plaza Planned Community land use designation from Civic/Cultural/Professional/Office to Multi -Unit Residential and to allow new residential development standards including a 300 -foot height limit); (4) Vesting Tentative Tract Map No. NT 2016-001; (5) Traffic Study No. TS 2015-004; (6) Site Development Review No. SD2016-001); (7) the EIR (State Clearinghouse No. 2016021023); and (8) all conditions of approval and all mitigation measures approved for the Project on or before the Agreement Date. "Development Regulations" shall mean the following regulations as they are in effect as of the Effective Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Effective Date that affects the Development of the Property, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Developer in writing: the General Plan; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement (see Section 4.3 in particular), all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, and improvement, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to the Development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions and inclusionary housing), and Title 20 of the Municipal Code (planning, zoning and density bonus), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control 0 and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of all of the following occurring: (i) the date that is thirty (30) calendar days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance, the Development Plan, or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and the Development Regulations; (iii) if a lawsuit is timely filed challenging the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan, and/or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan, and/or the applicable Development Regulations, whether such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement; or (iv) the date on which title to the Property has been transferred to, and vested in, Developer as evidenced by an instrument duly recorded with the Office of the County Recorder of the County of Orange. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et sem., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sem., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seg., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec ., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et seg. "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006-76, and any amendments to the 2006 General Plan that became effective before the Effective Date. The term "General Plan" shall exclude any amendments that became effective after the Effective Date unless such amendment is expressly authorized by this Agreement, or is specifically agreed to by Developer. The Land Use Plan of 5 the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "Party" or "Parties" shall mean either City or Developer or both, as determined by the context. "Project" shall mean all on-site and off-site improvements, including a 100 -unit residential condominium tower at the Property measuring approximately 295 feet in height (25 stories) as well as all ancillary uses, such as club rooms, fitness facilities, lobbies, business services, amenities, and other building services, as provided' in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Property" is located at 850 San Clemente Drive in the City, as described in Exhibit A and depicted on Exhibit B. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Developer is required to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations and this Agreement. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section 11 of this Agreement. 2. General Provisions. 2.1 Plan Consistency, Zoning Implementation. rel This Agreement is consistent with the General Plan and San Joaquin Plaza Planned Community Development Plan as amended by the approvals in the Development Plan adopted concurrently herewith. 2.2 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 2.3 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Developer and each person executing this Agreement on behalf of Developer hereby represents and warrants to City as follows: (i) that Developer has an option to purchase the fee simple title to the Property and will be the owner of fee simple title to the Property approximately one -hundred and eighty (180) calendar days following the Effective Date; (ii) if Developer or any co-owner comprising Developer is a legal entity that such entity is duly formed and existing and is authorized to do business in the State of California; (iii) if Developer or any co-owner comprising Developer is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iv) that all actions required to be taken by all persons and entities comprising Developer to enter into this Agreement have been taken and that Developer has the legal authority to enter into this Agreement; (v) that Developer's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Developer or any person or entity comprising Developer has to any third party; and (vi) that neither Developer nor any co-owner comprising Developer is currently the subject of any voluntary or involuntary bankruptcy or insolvency petition; and (vii) that Developer has no actual knowledge of any pending or threatened claims of any person or entity affecting the validity of any of the representations and warranties set forth in clauses (i) -(vi), inclusive. 2.4 Term. The term of this Agreement ("Term") shall commence on the Effective Date and shall terminate on the "Termination Date." Notwithstanding any other provision set forth in this Agreement to the contrary, if any Party reasonably determines that the Effective Date of this Agreement will not occur because, for example, (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non -appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Developer's indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall be repealed by the City after delivery of said notice of termination except for the Development Regulations that have been disapproved by City's voters at a referendum election and, therefore, never took effect. The Termination Date shall be the earliest of the following dates: (i) the tenth (10th) anniversary of the Effective Date, unless such date has been extended in accordance with Section 5.1 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in accordance with the terms of this Agreement, including Developer's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication. Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 14.11 (as well as any other Developer obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement. 3. Public Benefits. 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, Developer shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee") in the sum of one hundred eleven thousand and one -hundred dollars ($111,100) per residential dwelling unit, or eleven -million, one -hundred and ten thousand dollars ($11,110,000) for the Project's one -hundred (100) residential dwelling units, with the unpaid balance of said Public Benefit Fee increased beginning on January 1St following the second anniversary of the Effective Date by the percentage increase in the CPI Index between the Effective Date and said January 1St date (the first "Adjustment Date") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1St during the Term of this Agreement (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. n. The Developer shall pay the Public Benefit Fee to the City as follows: The Developer shall pay the entire Public Benefit Fee to City prior to the issuance of a grading permit for the Project. The City has not designated a specific project or purpose for the Public Benefit Fee. Developer acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from City's obligations and Developer's vested rights to be acquired hereunder, and that Developer expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of the Public Benefit Fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.); or otherwise. In addition to any other remedy set forth in this Agreement for Developer's default, if Developer shall fail to timely pay any portion of the Public Benefit Fee when due, City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project. 3. 1.1 Public Benefit Fee Allocation The City Council retains sole and absolute discretion to determine how the Public Benefit Fee shall be allocated and no final decisions have been made to date. At the November 29, 2016, Special Meeting, the City Council expressed its interest in allocating the Public Benefit Fee as follows: a) $5,110,000 to the Facilities Financing Plan; b) $2,000,000 for the improvement and operation of a cultural use located on the 0.9 Acre Parcel; c) $1,000,000 to construct a permanent building for the Junior Lifeguards Headquarters; d) $1,000,000 to construct a lecture hall at the Central Library; and e) $2,000,000 to fund the West Coast Highway Landscaping Project in West Newport. 3.2 0.9 Acre Parcel Donation As part of this Agreement, Developer shall cause OCMA to enter into that certain Donation Agreement with the City, in the form attached hereto as Exhibit D, pursuant to which OCMA shall execute a quitclaim deed to donate the 0.9 Acre Parcel to the City within thirty (30) calendar days of the Effective Date, or such other transfer timeline agreed upon by City. The City affirms that no physical redevelopment of the 0.9 Acre Parcel is contemplated as of the Agreement Date, and that the City intends to continue to operate the 0.9 Acre Parcel in a manner consistent with its operations on the Agreement Date for the foreseeable future. To the extent that the City may wish to change the use or development of the 0.9 Acre Parcel at a currently - unforeseen point in the future, such a change would be required to adhere to all applicable provisions of planning, zoning and environmental law, including but not limited to Title 20 of the Municipal Code (planning, zoning and density bonus), the California Environmental Quality C Act (California Public Resources Code sections 21000-21177) and CEQA's implementing regulations as promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seq.). 3.2.1 Public Benefit Reopener In the event OCMA is unable, for any reason, to donate the 0.9 Acre Parcel to the City as provided in Section 3.2, the Parties shall negotiate in good faith to determine an alternative public benefit to be provided by Developer to City under this Agreement. The alternative public benefit shall be of similar value to the 0.9 Acre Parcel. No permits or other approvals shall be provided or approved by City for the Project until the Parties have completed their negotiations to the satisfaction of the City Council. This alternative public benefit reopener provision shall not require an amendment to this Agreement. 3.3 Other Public Benefits. In addition to the Public Benefit Fee and the 0.9 Acre Parcel donation, the direct and indirect benefits City expects to receive pursuant to this Development Agreement are as follows: 3.3.1 In -Lieu of Park Land Dedication Fee and On -Site Private Recreational Amenities. Based upon the anticipated number of residents at the Project, the City calculated that Developer's park land dedication for the Project pursuant to the City General Plan, Government Code Section 66477 ("Quimby Act") and Newport Beach Municipal Code Chapter 19.52 at 1.1 acres. City acknowledges that Developer shall be eligible to receive credit against the payment of fees or dedication of land consistent with the General Plan, Quimby Act and Newport Beach Municipal Code Chapter 19.52. As of the Agreement Date, the City's established fair market value per acre is $2,500,000, and this shall be used in assessing in -lieu of park dedication fees and credit. 3.3.1.1. Credit for Private Recreational Amenities. Developer shall construct and improve private recreational amenities pursuant to the Development Plan. Private recreational amenities shall be privately owned and maintained in perpetuity by Developer or any governing homeowners' association. For private recreational amenities, Developer may be eligible to receive up to twenty percent (20%) credit against the payment of City fees (e.g., Park In -Lieu Fees) or dedication of land in exchange for the provision of private recreational amenities consistent with Newport Beach Municipal Code Chapter 19.52. The dollar amount of the credit shall be based on land value established by multiplying the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). 3.3.1.2. Payment of Park In -Lieu Fees. In -lieu of parkland dedication fees ("Park In -Lieu Fees") shall be paid to the City on a per unit basis prior to the issuance of a certificate of occupancy for such unit. The fee amount for Park In -Lieu Fees shall be calculated on a per-unit basis consistent with Newport Beach Municipal Code Chapter 19.52. 3.3.2 Bond Financing of Public Improvements and Fees. City and Developer may cooperate in good faith with each other in connection with the formation of, or annexation into, an assessment district or community facilities district, if any, to facilitate bond financing of eligible public improvements and development impact fees. 10 4. Development of Project. 4.1 Applicable Regulations;. Developer's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Developer shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict the City's discretion with respect to (i) those review and approval requirements contained in the Development Regulations, (ii) the exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals that are required for Development of the Project as of the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions in connection with the Subsequent Development Approvals, the City reserves its full discretion to the same extent that it would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Developer's rights with respect to any laws, regulations, rules, or official policies of any other (i.e., non -City) governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. Developer has expended and will continue to expend substantial amounts of time and money planning and preparing for Development of the Project. Developer represents, and City acknowledges, that Developer would not make these expenditures without this Agreement, and that Developer is and will be making these expenditures in reasonable reliance upon its vested rights to Develop the Project as set forth in this Agreement. Developer may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, without amending this Agreement, provided that the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic and, in addition, Developer may apply to City for approval of minor amendments to the existing tentative tract map, or associated conditions of approval, consistent with City of Newport Beach Municipal Code Section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 11 4.2 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Effective Date to the extent it conflicts with this Agreement or Developer consents in writing. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Developer shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Developer deems appropriate within the exercise of Developer's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Effective Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Developer's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 4.3 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property. 4.3.1 Procedural Regulations. Unless otherwise specified in this Agreement, procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City- wide or to all other properties similarly situated in City. 4.3.2 Processing and Permit Fees. City shall have the right to charge, and Developer shall be required to pay, all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Developer, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due. 12 4.3.2.1 Vested Development Impact Fees. All City development impact fees and fee in lieu of parkland dedication fees shall be fixed at the rates in place on the Agreement Date as shown on attached Exhibit E. Fees and charges levied by any other (i.e., non -City) governmental agency or public utility company with jurisdiction over the Property or the Project shall not be fixed in place by the Development Agreement. 4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Developer has consented in writing to the regulations, shall apply to the Property. 4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Developer and the Project in the absence of this Agreement; provided except where the extent the timing, value, scope and/or extent of a particular Development Exaction for the Project has ..been established and fixed by City in this Agreement, the Project's conditions of approval, or the Development Regulations. City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with this Agreement, the Project's conditions of approval, or the Development Regulations without Developer's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 below). In addition, nothing in this Agreement is intended or shall be deemed to vest Developer against the obligation to pay any of the following (which are not included within the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications, including CEQA review; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code. 4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Developer does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Developer shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to 13 determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of Developer as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer at no cost to City or Developer in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer. City also agrees to process in a prompt manner Developer's proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement. 4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Developer's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 4.3.8 Public Works Improvements. To the extent Developer constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that City undertakes to provide such services to other similarly situated new developments in the City of Newport Beach as and when service connections are provided and service commences). 4.4 Tentative Subdivision Maps City agrees that Developer may file and process new and existing vesting tentative maps for the Property consistent with California Government Code Sections 66498.1-66498.9 and Newport Beach Municipal Code Chapter 19.20. Pursuant to the applicable provision of the California Subdivision Map Act (California Government Code section 66452.6(a)), the life of 14 any tentative subdivision map approved for the Property, whether designated a "vesting tentative map" or otherwise, shall be extended for the Term of this Agreement. Amendment or Cancellation of Agreement This Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code Section 65868 and Newport Beach Municipal Code Section 15.45.070 or by unilateral termination by City in the event of an uncured default of Developer. 5.1 Extension. Developer may request up to, and upon receipt of a written request from Developer, City shall grant one (1) five (5) year extension to extend the Term of this Agreement for a total of five (5) additional years provided that Developer has timely submitted its written request to extend this Agreement prior to its expiration and that Developer is not in default of this Agreement. 6. Enforcement. Unless amended or canceled pursuant to California Government Code Section 65868, Newport Beach Municipal Code Section 15.45.070, or modified or suspended pursuant to Newport Beach Municipal Code Chapter 15.45 or California Government Code Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, this Agreement shall be enforceable by any Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 7. Annual Review of Developer's Compliance With Agreement. 7.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code section 65865.1. Developer (including any successor to the owner executing this Agreement on or before the date of the Adopting Ordinance) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 Developer Obligation to Demonstrate Good Faith Compliance. During each annual review by City, Developer is required to demonstrate good faith compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 15 7.3 Procedure. The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not Developer has, for the period under review, complied with the terms of this Agreement. If the Zoning Administrator finds that Developer has so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the basis of substantial evidence, that Developer has not so complied, written notice shall be sent to Developer by first class mail of the Zoning Administrator's finding of non-compliance, and Developer shall be given at least ten (10) days to cure any noncompliance that relates to the payment of money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) days for reasons which are beyond the control of Developer, Developer must commence the cure within such thirty (30) days and diligently pursue such cure to completion. If Developer fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non -Exclusive Means for Determining and Requiring .Cure of Developer's Default. The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Developer or limit City's rights or remedies for any such Default. 8. Events of Default. 8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (twenty (20) days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) days in the event of non -monetary Defaults) in which the Default must be cured ("Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non -monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. Notwithstanding the foregoing, the City is not required to give Developer notice of default and may immediately pursue remedies for a Developer Default that result in an immediate threat to public health, safety or welfare. 8.2 Default by Developer. If Developer is alleged to have committed Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City 16 Council meeting to consider Developer's appeal of the Notice of Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Developer's appeal of the Notice of Default is timely and in good faith but after a public hearing of Developer's appeal the City Council concludes that Developer is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Developer's appeal is communicated to Developer in writing. 8.3 - City's Option to Terminate Agreement. In the event of an alleged Developer Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Developer with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Developer timely appeals any Notice of Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination may be judicially challenged by Developer. Any such judicial challenge must be brought within ninety (90) calendar days of service on Developer, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2. 8.4 Default by City. If Developer alleges a City Default and alleges that the City has not cured the Default within the Cure Period, Developer may pursue any legal or equitable remedy available to it, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in Developer's performance hereunder shall neither be a Developer Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Developer's option (and provided Developer delivers written notice to City within thirty (30) days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay. 8.5 Waiver. Failure or delay by any Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. 8.6 Specific Performance Remedy.. Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Agreement has begun. After such implementation, both Developer and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Developer and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Developer or City for such 17 efforts. For the above reasons, except as set forth in Section 8.7, City and Developer agree that damages would not be an adequate remedy if either City or Developer fails to carry out its obligations under this Agreement. Therefore, except as set forth in Section 8.7, specific performance of this Agreement is necessary to compensate Developer if City fails to carry out its obligations under this Agreement or to compensate City if Developer falls to carry out its obligations under this Agreement. 8.7 Monetary Damages. The Parties agree that monetary damages shall not be an available remedy for any Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Developer as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Developer's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. In no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. Developer expressly agrees that the City, any City agencies and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives (collectively, for purposes of this Section 8.7, "City") shall not be liable for any monetary damage for a Default by the City or any claims against City arising out of this Agreement. Developer hereby expressly waives any such monetary damages against the City. The sole and exclusive judicial remedy for Developer in the event of a Default by the City shall be an action in mandamus, specific performance, or other injunctive or declaratory relief. 8.8 Additional City Remedy for Developer's Default. . In the event of any Default by Developer, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Developer's Default without recourse from Developer or its successors or assigns. 8.9 No Personal Liabilityof Officials, Employees, or Agents. No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement. 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and expenses include court costs, expert witness fees, attorneys' fees, City staff costs (including overhead), and costs of investigation and preparation before initiation of the Action. The right to recover these costs and expenses shall accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. Um 9. Force Majeure. No Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Developer's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indemnity Obligations of Developer. 10.1 Indemnity Arising From Acts or Omissions of Developer. Except to the extent caused by the intentional misconduct or gross negligent acts, errors or omissions of City or one or more of City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of Developer or Developer's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Developer relating to the Property or Project, or pursuant to this Agreement. City shall have the right, in its sole discretion, to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and Developer shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.2 Third Part.atm In addition to its indemnity obligations set forth in Section 10.1, Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Plan approvals for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of reasonable attorney's fees, expert witness fees, City staff costs (including overhead), and court costs. City shall promptly notify Developer of any such Claim and City shall cooperate with Developer in the defense of such Claim. Developer shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Developer is so notified and if City fails to cooperate in the defense of a Claim Developer shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's reasonable defense costs for its separate counsel shall be included in Developer's indemnity obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to 19 minimize the total litigation expenses incurred by Developer. In the event either City or Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Developer shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). No settlement of any Claim against City or City's Affiliated Parties shall be executed without the written consent of both the City and Developer. The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Effective Date Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation reasonable attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Developer in connection with Developer's Development of the Project. The indemnity provisions in this Section 10.3 shall commence on the Effective Date occurs, and shall survive the Termination Date. 11. Assignment. Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer") Developer's interest in or fee title to the Property, in whole or in part, to a "Permitted Transferee" (which successor, as of the effective date of the Transfer, shall become the "Developer" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such transfer shall include the assignment and assumption of Developer's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Developer's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of Developer's interest in the Property; and (ii) prior to the effective date of any proposed Transfer, Developer (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Developer and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Developer assigns to the successor Developer and the successor Developer assumes from the transferring Developer all of the rights and obligations of the transferring Developer with respect to the Property and this Agreement, or interest in the Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed outside of the Property so Transferred that are a condition precedent to the successor Developer's right to develop the 110 portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with respect to the balance of the Property, without Developer's written consent. Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and severally liable to City, together with the successor Developer, to perform all of the transferred obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the following conditions, in which event the transferring Developer shall be automatically released from any and all obligations with respect to the portion of the Property so Transferred: (i) the transferring Developer no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Developer is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Developer has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Developer either (A) provides City with substitute security equivalent to any security previously provided by the transferring Developer to City to secure performance of the successor Developer's obligations hereunder with respect to the Property, or interest in the Property, or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor Developer either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction, as determined in the City's sole discretion, that the successor Developer has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. 12. Mortgagee Rights. 12.1 Encumbrances on Property. The Parties agree that this Agreement shall not prevent or limit Developer in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all 21 of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Developer or other affirmative covenants of Developer, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and within sixty (60) days after receiving a Notice of Default with respect to a non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default within sixty (60) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the sixty (60) -day period. In the case of a non -monetary Default that cannot with diligence be remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non -monetary Default within sixty (60) days and diligently prosecutes the cure to completion. 13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 14. Miscellaneous Terms. 14.1 Joinder of OCMA OCMA is executing this Agreement for the sole and limited purposes of. (i) consenting, in its capacity as record owner of the Property as of the Agreement Date, to the recordation of this Agreement against the Property pursuant to Section 14.18 hereof, and (ii) agreeing, in OCMA's capacity as record owner of the 0.9 Acre Parcel, to enter into the Donation Agreement with the City, in the form attached hereto as Exhibit D, in accordance with Section 3.2 above and (iii) accepting its obligations to donate the 0.9 Acre Parcel to the City on the terms set forth in this Agreement and the Donation Agreement. 22 14.2 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attn: City Manager With a copy to: City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 TO DEVELOPER: Mr. Gino Canori OCMA Urban Housing, LLC 18201 Von Karman Avenue, Suite 900 Irvine, California 92912 With a copy to: Sean Matsler, Esq. Manatt, Phelps & Phillips, LLP 695 Town Center Drive, 14th Floor Costa Mesa, California 92626 TO OCMA: Mr. Todd Smith Orange County Museum Of Art 850 San Clemente Drive Newport Beach, CA 92660 Any Party may change the address stated in this Section 14.2 by delivering notice to the other Parties in the manner provided in this Section 14.2, and thereafter notices to such Party or Parties shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of. (i) the date received, or (ii) three business days after deposit in the mail as provided above. 14.3 Project as Private Undertaking. The Development of the Project is a private undertaking. Neither the Developer nor the City is acting as the agent of the other in any respect, and each is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the property. 23 14.4 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 14.5 Estoppel Certificates. At any time, any Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. 14.6 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 14.7 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 14.8 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 14.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. 24 14. 10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement. 14.11 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that no Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of the benefits of this Agreement if any of Developer's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free- to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Developer shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Developer's obligations under this Agreement. The provisions of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the Termination Date. 14.12 Construction. This Agreement has been drafted after extensive negotiation and revision. Both City and Developer are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Developer had the opportunity to be so represented and voluntarily chose to not be so represented. City and Developer each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part of this Agreement in favor of or against any Party. 14.13 Successors and Assigns; Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. Except for those provisions relating to indemnity in Section 10, all other provisions of this Agreement shall, from and after the Effective Date hereof, be enforceable as equitable servitudes and constitute covenants running with the land. Subject to occurrence of the Effective Date, each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof, and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this 25 Agreement. This Section 14.13 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Section 11. 14.14 No Third Party Beneficiaries. The only Parties to this Agreement are City and Developer. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 14.15 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 14.16 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 14.17 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows: EXHIBIT DESIGNATION DESCRIPTION A Legal Description of Property B Depiction of the Property and 0.9 Acre Parcel C Legal Description of 0.9 Acre Parcel D 0.9 Acre Parcel Donation Agreement E Schedule of Development Impact Fees W 14.18 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. [SIGNATURE PAGE FOLLOWS] 27 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "DEVELOPER" OCMA Urban Housing, LLC a California limited liability corporation By: _ Name: Title: "CITY" CITY OF NEWPORT BEACH Diane B. Dixon, Mayor ATTEST: Leilani I. Brown, City Clerk APPROVED�S TO FORM: Aaron C. Harp, City Attorney DRAFT ACKNOWLEDGEMENT AND CONSENT OF OWNER The undersigned duly -authorized officer of OCMA is executing this Agreement on behalf of OCMA for the limited purposes set forth in Section 14.1 above. "OCMA" I� Name: Title: -29- ACKNOWLEDGEMENTS 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 On , before me, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 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 On , before me, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 112%066751-0090 2347819.1 al2/01/16 -30- SD\611846.4 112/066751-0090 2347819.1 a12/01/16 SD\611846.4 Signature (Seal) -31- EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE. STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF THE PARCEL MAP. IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 81. PA GE5 9 AND 9. QF PAR EL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER SAID LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFORE, AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LANDS, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE SAID LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE SAID LAND AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER. THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF SAID LAND, AS RESERVED BY THE IRVINE COMPANY IN THE DEED RECORDED FEBRUARY 28, 1977, IN BOOK 12085, PAGE 1561, OF OFFICIAL RECORDS. NPN: 442-261-05 EXHIBIT B DEPICTION OF PROPERTY AND 0.9 ACRE PARCEL 1 '- This Map is being furnished to locate the z h*r&tn Oscribed land to MAOont* Adjokilml streets and othor laftd$, The Company does not guarantee dimensions nves� be*Angsor acreage stated raon, nor is it distances ft lmendedtoftstrate lagat lnatdrrrg saes oreupersede Citycr 442-21 it county ordinances, ka. building vorum; and ..diml, ate, Omrjal laromation concerning the use ofany Parcel should be obtained from local government aw4tita. ORIVE iii at K. 0 0, /p 7 At J1 6 /;?Yllvr SO XX 1-88 h,111C,q 7478 xawr»m war IRACf NO. 6015 MAt. 239 -?8 ro rj �Ar, IRAC r Iva. 15? 76 X44. 737-45 46.47 PAWL AMP P.M. 81 442 7G IT =IjIv- .i%�.kvr I 1 EXHIBIT C LEGAL DESCRIPTION OF 0.9 ACRE PARCEL THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN T14E COUNTY OF ORANGE, STATE OF CALIFORNIA. AND IS DESCRIBED AS FOLLOWS: PARCEL A: PARCEL 2. AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT BEACH LOT LINE ADJUSTMENT, N.B.L.L.A. 95-3, CITY OF NEWPORT BEACH. COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED OCTOBER 31, 1995, As INSTRUMENT NO. 19950483821. OF OFFICIAL RECORDS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM AL.L. OIL, 011, RIGHTS, MINERALS, MINERAL, RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF "THE: FOREGOING, THAT MAY BE WITHIN OR UNDER SAID LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFORE. AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LANDS, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE SAID LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE SAID LAND AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, R_ETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF SAID LAND AS RESERVED BY THE IRVINE COMPANY IN THE DEED RECORDED NOVEMBER 22, 1995, AS INSTRUMENT NO. 19950519960. OF OFFICIAL RECORDS, EXCEPT ANY AND ALL, WATER RIGHTS OR INTERESTS THEREIN APPURTENANT OR RELATING TO THE LAND OR WITH RESPECT TO THE LAND, WHETHER SUCH WATER RIGHTS SHALT. BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING. PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWER TO DRILL, REDRILI_ STORE IN AND REMOVE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTEREST ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, BUT WITHOUT, HOWEVER ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED BY THE IRVINE COMPANY IN THE DEED RECORDED NOVEMBER 22, 1995, AS INSTRUMENT NO, 1995()519960, OF OrFICtAL, RECORDS. PARCEL B: AN APPURTENANT NON-EXCLUSIVE JOINT ACCESS EASEMENT FOR ACCESS, INGRESS AND EGRESS OVER THAT PORTION OF PARCEL. I AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT BEACH LOT LINE ADJUSTMENT N.B.L.L-A, 95-3, RECORDED OCTOBER 31, 1995, AS INSTRUMENT NO. 19950483821. OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY SOUTHEASTERLY CORNER OF SAID PARCEL I,- THENCE, NORTHERLY ALONG THE EASTERLY PARCEL LINE OF SAID PARCEL I NORTH 070 03, 01" WEST 55.00 FEET, THENCE, SOUTH 820 56' 59" WEST 65.00 FEET; THENCE, SOUTH 07' 03' 01" EAST 55.00 FEET TO A POINT ON THE MOST SOUTHERLY LINE OF SAID PARCEL 1, SAID POINT BEING ALSO ON THE MOST NORTHERLY RIGHT OF WAY LINE OF SAN CLEMENTE DRIVE, THENCE, EASTERLY ALONG SAID SOUTHERLY LINE AND SAID RIGHT OF WAY LINE NORTH 82' 56' 59" EAST 65.00 FEET TO THE POINT OF BEGINNING. APM 442-261-17 EXHIBIT D 0.9 ACRE PARCEL DONATION AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: Citv Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DONATION AGREEMENT by and between The City of Newport Beach and the Orange County Museum of Art Regarding 0.9 Acre Parcel (APN # 442-261-17) This Donation Agreement ("Agreement") is made by and between the City of Newport Beach ("City"), a California municipal corporation, and the Orange County Museum of Art (successor - in -interest by merger to Newport Harbor Art Museum) ("OCMA"), a California nonprofit public benefit corporation, as of , 2016 ("Effective Date"). City and OCMA are referred to in this Agreement individually as a "Party" and collectively as the "Parties." RECITALS A. OCMA is the owner of fee title to that certain approximately 0.9 acre real property parcel located in the City located at 856 San Clemente Drive (APN # 442-261-17), as more particularly described in Exhibit A and depicted on Exhibit B, attached hereto, including all fixtures and improvements thereon (collectively, the "0.9 Acre Parcel"). B. OCMA is also the owner of fee title to a 1.99 -acre parcel located at 850 San Clemente Drive (APN # 442-261-05) (the "Museum Parcel"). OCMA has entered into a contract with OCMA Urban Housing, LLC ("Developer") for the purchase of the Museum Parcel (the "Museum Parcel Purchase Agreement"). C. The Museum Parcel is subject to the provisions of that certain Development Agreement by and between the City and Developer (Ordinance No. _, the "Development Agreement") regarding the entitlement and development of the Museum Parcel for the "Museum House" project comprised of one -hundred (100) residential dwelling units ("Project"). The Development Agreement was introduced on , 2016 and adopted by the Newport Beach City Council on , 2016. As a condition to the Development Agreement, Section 3.2 thereof requires Developer to cause OCMA to donate the 0.9 Acre Parcel to the City. OCMA has agreed to such donation of the 0.9 Acre Parcel on the terms set forth herein. D. Consistent with the Development Agreement, the Parties desire that fee ownership of the 0.9 Acre Parcel be transferred via quitclaim deed to, and vested in, the City, subject to a limited -term Leaseback (defined below) to OCMA on the terms set forth herein, and that the 0.9 Acre Parcel be thereafter held and operated in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration of the above, OCMA offers to donate the 0.9 Acre Parcel to the City in fee, and the City accepts said offer, upon the following terms and conditions: Timiniz. Unless another transfer method and transfer timeline is agreed upon by City in writing, OCMA agrees to convey, assign, and transfer all of its interest in the 0.9 Acre Parcel to the City pursuant to a quitclaim deed, duly executed and acknowledged by OCMA, within thirty (30) calendar days of the last of the following events to occur ("Transfer Date"): a. Thirty (30) calendar days after the date that the City Council adopts the Development Agreement via ordinance ("Adopting Ordinance"); b. If a referendum concerning: (i) the Adopting Ordinance: (ii) any of the land use entitlements, approvals and/or permits approved by the City for the Project, or any of the land use and subdivision regulations governing the Project (collectively, "Project Approvals") is timely qualified for the ballot and a referendum election is held concerning same, the date on which the referendum is certified resulting in upholding and approving same and allowing for the development of the Project; c. If a lawsuit is timely filed challenging the Project Approvals, the date on which said challenge is finally resolved in favor of same whether such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement; or d. The date on which title to_850 San Clemente Drive (APN # 442-261-05) has been transferred to, and vested in, OCMA Urban Housing, LLC as evidenced by an instrument duly recorded with the Office of the County Recorder of the County of Orange. Leaseback. Beginning on the Transfer Date provided in Subsections 1(a) -(d) above, City shall lease the 0.9 Acre Parcel back to the OCMA for a term of five (5) years ("Leaseback"), pursuant to the following terms and conditions: a. Leaseback Financial Obligations. OCMA's annual rent obligation shall be fixed at one dollar ($1.00). During the Leaseback, OCMA shall be solely responsible for any maintenance expenses, building insurance, and property taxes (i.e., triple net lease). b. City's Leaseback Rights. The City shall retain limited access rights to the 0.9 Acre Parcel throughout the Leaseback to inspect, survey and/or analyze the 0.9 Acre Parcel. The City's access during the Leaseback shall occur, if at all: (i) during normal business hours; (ii) subject to three (3) calendar days' prior written notice to OCMA; and (iii) in strict compliance with OCMA's reasonable security procedures. The City's access shall not materially interfere with OCMA's use of the 0.9 Acre Parcel. The City has no right to make any physical improvements or modifications to the 0.9 Acre Parcel during the Leaseback. c. Leaseback Indemnification. City shall indemnify, defend, save, and hold harmless OCMA, its elected officers, employees, and agents, from and against any and all liability, expense (including defense costs and legal fees), and claims for damages of any nature whatsoever arising out of the City's use of the 0.9 Acre Parcel during the Leaseback. The foregoing terms shall be set forth in a lease agreement to be executed by OCMA, as tenant, and the City, as landlord, on or before the Transfer Date, in such form as may be reasonably acceptable to the Parties. 3. Physical Condition. OCMA offers the 0.9 Acre Parcel to the City in "as is" condition, without any representations or warranties regarding physical condition of the 0.9 Acre Parcel or its improvements. OCMA shall have no obligation to the City to perform any repairs, alterations or improvements to the 0.9 Acre Parcel (other than normal maintenance during the Leaseback). 4. Declaration of Special Land Use Restrictions. As a condition precedent to OCMA's donation of the 0.9 Acre Parcel to City while the Special Land Use Restrictions are in effect, the City shall deliver to OCMA written consent to said transfer from The Irvine Company, as well as The Irvine Company's waiver of its future rights and OCMA's future obligations under the Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Other Remedies recorded in the County of Orange, California (Instrument No. 19950519961) and attached hereto. 5. City Use of 0.9 Acre Parcel. The 0.9 Acre Parcel shall be used in a manner that is consistent with the City's General Plan and corresponding zoning. No physical redevelopment of the 0.9 Acre Parcel is contemplated as of the Effective Date, and the City intends to continue to operate the 0.9 Acre Parcel in a manner consistent with its operations on the Effective Date for the foreseeable future. To the extent that the City may wish to change the use or development of the 0.9 Acre Parcel at a currently - unforeseen point in the future, such a change would be required to adhere to all applicable development controls, including but not limited to Title 20 of the Municipal Code (planning, zoning and density bonus), Title 5 of the Municipal Code (business licenses and regulations), the Subdivision Map Act (Government Code Section 66410 et seq.), the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and CEQA's implementing regulations as promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.). 6. Condition of 0.9 Acre Parcel. City acknowledges that neither OCMA, its agents, employees nor its other representatives have made any representations or warranties regarding any matter relating to the 0.9 Acre Parcel, including but not limited to the 0.9 Acre Parcel's physical condition, title, environmental conditions, adequacy of design, suitability for a particular purpose, effect of zoning and/or other applicable laws, regulations and/or governmental rulings, or the accuracy, completeness or relevance of any materials or information regarding the 0.9 Acre Parcel. City agrees that it is relying exclusively on its own independent judgment of all such matters and the 0.9 Acre Parcel is being accepted in an "as -is, where -is, with -all -faults" condition with all physical or title defects. 7. Indemnification. Developer and/or OCMA shall indemnify, defend, save, and hold harmless City , its elected officers, employees, and agents, from and against any and all liability, expense (including defense costs and legal fees), and claims for damages of any nature whatsoever arising out of OCMA's donation of the 0.9 Acre Parcel to the City excluding only claims arising during the term of the Leaseback which are proximately caused by the acts or omissions of City or its employees, agents or permittees on the 0.9 Acre Parcel. 7.1 Developer is executing this Agreement for the sole and limited purposes of providing the indemnity in Section 7. Taxes and Assessments. OCMA shall pay all general and special real property taxes and supplemental assessments, as well as any assessments, special taxes or other payments arising from bonds, contracts, or liens created by, through or as a result of the efforts or activities of OCMA (collectively, "Obligations") that have accrued prior to the Transfer Date. Except as set forth in Section 2 of this Agreement, City shall pay for all Obligations accruing from the Transfer Date. 9. Transactional Fees. All recording, escrow, title, insurance and other fees necessary to effect the donation of the 0.9 Acre Parcel to the City shall be paid by the City. 10. Amendment. This Agreement may be amended only by the written mutual consent of OCMA and the City. 11. Required Actions of City and OCMA. City and OCMA agree to execute all such instruments and documents and to take all actions pursuant to the provisions of this Agreement to consummate donation of the 0.9 Acre Parcel. City shall record this Agreement upon the Effective Date of the Development Agreement (as that term is defined in Section 1 of the Development Agreement). 12. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the 0.9 Acre Parcel and supersedes all prior oral and written communications regarding same. 13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same Agreement. 14. California Law. This Agreement shall be construed in accordance with the laws of the State of California, with venue in Orange County. 15. Waivers. No waiver by either Party of any provision of this Agreement shall be deemed a waiver of any other provision hereof or of any subsequent breach by either party of the same or any other provision. 16. Headings. The headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections of this Agreement. 17. Severability. In the event any portion of this Agreement shall be declared by any court of competent jurisdiction to be invalid, illegal, or unenforceable, such portion shall be severed from this Agreement and the remaining parts shall remain in full force and effect as fully as though such invalid, illegal, or unenforceable portion had never been part of this Agreement, provided that the remaining provisions of the Agreement can be reasonably and equitably enforced. 18. Binding Effect. The provisions of this Agreement shall be binding upon the Parties and their respective successors -in -interest. 19. Individual Authority. The individuals executing this Agreement on behalf of both Parties affirm that they have the legal power, right, and authority to bind the Parties to the terms and conditions of this Agreement. 20. Assistance of Counsel. Each Party either had the assistance of counsel or had counsel available to it, in the negotiation for, and the execution of, this Agreement, and all related documents. 21. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested or by Express Mail or Federal Express to the following address: To City: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: City Attorney To OCMA: Orange County Museum of Art 850 San Clemente Drive Newport Beach, CA 92660 Attn: Director and CEO Notice shall be deemed given two (2) business days after deposit with a carrier as specified above. Notice of a change of address shall be given by written notice in the manner detailed herein. ***********************SIGNATURE PAGE FOLLOWS********************** IN WITNESS WHEREOF, the Parties have executed this Agreement or caused it to be executed on their behalf, on the day, month, and year first written above. "OCMA" By: Name: Title: "DEVELOPER" OCMA Urban Housing, LLC a California limited liability corporation By: Name: Title: "CITY" CITY OF NEWPORT BEACH Diane B. Dixon, Mayor ATTEST: Leilani I. Brown, City Clerk APPROVED °P07RM: Aaron C. Harp, City Attorney EXHIBIT A LEGAL DESCRIPTION OF 0.9 ACRE PARCEL THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE. STATE OF CALIFORNIA. AND IS DESCRIBED AS FOLLOWS: PARCEL A* PARCEL 2., AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT BEACH LOT LINE ADJUSTMENT, N.1311.A. 95-3, CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED OCTOBER 31, 1995, A IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, EXCEPT THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS. AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, 'THAT MAY BE WITHIN OR UNDER SAID LAND, TOGETHER WITH 'THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFORE, AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LANDS, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE SAID LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE SAID LAND AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS 'THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH *THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF SAID LAND AS RESERVED BY THE IRVINE COMPANY IN THE DEED RECORDED NOVEMBER 22, 1995, AS INSTRUMENT CO. \ ict � C - 1995051.9960, OF OFF At RECORDS. ORDS, EXCEPT ANY AND ALL WATER RIGHTS OR INTERESTS THEREIN APPURTENANT OR RELATING TO THE LAND OR WITH RESPECT TO THE LAND, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWER TO DRILL, REDRILL, STORE IN AND REMOVE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER. RIGHTS OR INTEREST ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, BUT WITHOUT, HOWEVER ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED BY THE IRVINE COMPANY IN THE DEED RECORDED NOVEMBER 22, 1995, AS INSTRUMENT NO, 1995019960. OF OFFICIAL RECORDS. PARCEL B: AN APPURTENANT NON-EXCLUSIVE JOINT ACCESS CASEMENT' FOR ACCESS, INGRESS AND EGRESS OVER THAT PORTION OF PARCEL I AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT BEACH LOT LINE ADJUSTMENT N,B,I-.L.A. 95-3, RECORDED OCTOBER 31. 1995, AS INSTRUMENT NO. 19950483S2i. OF OFFICIAL- _RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY SOUTHEASTERLY CORNER OF SAID PARCEL 1; THENCE, NORTHERLY ALONG TETE EASTERLY PARCEL LINE OF SAID PARCEL I NORTH 070 03'01" WEST 55.00 FEET, THENCE, SOUTH 82" 56' 59" WEST 65.00 FEET-, THENCE, SOUTH 07'03'01" EAST 55,00 FEET TO A POINT ON THE MOST SOUTHERLY LINE OF SAID PARCEL 1, SAID POINT BEING ALSO ON THE MOST NORTHERLY RIGHT OF WAY LINE OF SAN CLEMENTE DRIVE; THENCE, EASTERLY ALONG SAID SOUTHERLY LINE AND SAID RIGHT OF WAY LINE NORTH 82" 56'59" EAST 65.00 FEET TO THE POINT OF BEGINNING. APN: 442-261-17 EXHIBIT B DEPICTION OF 0.9 ACRE PARCEL '•e This Atab be Gain& fumianadas atonwentanct bx focatetkre hemtn dencdbed land In relation toa11.101fiing Streets and dWef Sands. Tht CompenYdoeS not gnamntee dimertalana, 442-21 t3iy4 di uteet baarinp,or samogt stated themon.nor Is it y s x' {rttended to NtUstrate fagat bpUd6tgoff" of sUperstde City of a Courtly ardmanees, t.e. towas and buNing Codes, etc. O gtiormadan Ilia should Llai aansshting use of myparatt be ostalatdfrom focal goatmmtnt agencies. 4 Pr41 /!tV/NE' lJN1YE' y 2 yt m a J 4 26t � 4 pm,e Buis 55 t ti M.Idke . IN -1 Cl A r t If F rrg.tt' C4rNr \:J *ia b pm c?JYd'•� sN t:/ AT- r6 NiRAr� Y �* FlA3rss5'` f3FS:-e. 5 2# N. s5f717 \F MARC/ 1478 r+c+rrtwrex zr s'r }R CT O. At. kL 1-64 1RACt NO. 5il5 -s,+r s, bf.t4. 239 45 rtt 41?ra.`. 13tt$ N.Af 131^$.48.47 Nftmeifis sw^st t� - ,u SY t sfrr <is >3'' z .0-' fnvtJTJ ,�\ FARM 14 PARtfd A6AP P.X, 8118. 136-2?.f15-22 ,� rsF ���.` 26 l �"*:� Attachment Declaration of Special Land Use Restrictions, Ri ht of First Refusal, Mortgage Lien and Other Reme�ies t RECORDING REQUESTED BY• ra�srxmtF,r� v:.rrr�.tl'+J�" WHEN RECORDED MAIL TO.• THE IRVINE COMPANY do Irvine Commercial Land Sales Company 550 Newport Center Drive, 6th Floor mecarcea in Xne G.Vunty Of arworange, paiarornia 111161i0911IN11111w@156 00or1vr �m� �gaza� ar z, ie1995@519961 430p11/22/95 32 1 001 005 M26 44 21.00 124.00 6.00 21.00 0.00 0.00 0.00 Newport Beach, CA 92660 1, Attention: Jeffrey J. Wallace, Esq. SPACE ABONTTM LOX FOR RECORDERS USE j DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT jj OF FIRST REFUSAL, MORTGAGE LIEN AND OTHER RFAIEDIES t M s r- TABLE OF CONTENTS 'pae No Article I, GENERAL PRQVISIONS . . ..... . .. . .......... 1.1 Grantee's ReprcscrItations and Wa ++ties 1 1.2 Statement of bectatartt's General Purposes .... , h 2 1.3 efinitions ... ............. . . . . ..... ..............1 Article 2. SPECT C RESTRICTIONyS . ................ . 4 2.1 Specific Facilities_ .... _ ..... 4 2.2 Declarm's Approvals . .. . ........... . ......... . .... .. . .. 5 2.3 Grantee's Cost . . . . .. 2 . . . . .... . .... • • • 6 A �trlfilirr+ent of Requt=remewa - _ ...... I .. " .................. • • • . • ... 4 . 6 2.5 Compliance with Law . . . . .. . . .... . ...... . ..... . ....... 6 2.6 [intentional Qm',tto• .. . ..... . .......... 7 2.7 Oonds ......................... 2.8 Transfers 7 2.9 Subordination .. t .... . . . . ....... :. 7 Article 3_ VENERAL RESTRICTIONS .. . .... . .. . ............ _ 9 3.1 Unapproved Development or Use . . . . .. . ........ . ...... . • .. 9 3.2 Floor Area Limitatiop -.1 ..... . ..... . . . . ... . . . . 9 3.3 General Maintenance 9 3.4 Restoration _ . , _ , , g 3.5 Drainaee .._. ,_-_. _•.._...:-... 9 3.6 limgntionalIv Omitted.] .. _ ........ "..... . ... . . ... . g 3.7 S_iR_ ••--•........, 10 3.8 Pro ibited Q era ` ns and Us a .......... . . . .. . . ..... 10 3.9 No Subdivision __........... ___•----_ 11 3.10 Zonine. .. _ _ t l 3.11 Assessment Districts and Associations . . ..... . .. . . . . 11 3.12 Indemnity ...................................... 12 Article 4. DECLARANT'S 9 GHT OF FIRST REFUSAL ... • .... • .... • • , • , • ! - 13 Article 5. REMEDIES . .. . ..... . . ..... . .. . ...... . ..... . .......... 14 5.1 Default and General Remedies ... . ...... . . . . . .. . . ............ . 14 5.2 Inspection ..... 16 5.3 gpdo 16 5.a1x 5.5 waiver z8 5.6 Costs of Enforcement ..... . ............... ........... • • 18 5.7 Ri bg is of Lendgrs ........ . .. . ..... . ..:..... 18 5.8 Advances 19 Article 6. [Intentionally Omitted ......... . .................. _ .. _ .... 19 Article 7. fIntentionally Omitted ................ . ... 19 y i N -pm Itft, Aa 4tu em: U' t 1 I• r Article 8. GENERAL PROWISIONS ........................ ' 8.1 Unavoidable Delay ................................ 9 8.2 Qrtflnuous Overadonsi ....... ............................ 20 8.3 Covenants to Run wish the ProagM: Tem ............... 20 8.4 Ass ignmatt by .... Pmla3gg ... ......... 20 . 8,5 AmAmendments....... 1 ....... 121 8.6 RdMe ...... i ........ 121 .......... ...... i 8.7 Notices ......... ....... I .......... I .................. 121 8.8 Governing Law ...... .............................. .!22 8.9 Severability ............. ...*''**''**''* ..... . 22 8.10 Carnions...... ....... ........ .............. ;22 8.11 Entire agreement' 22 ........... I o.8. 12 Genderand Number................... .................. :22 8,13 rune of Essence .............................. '22 9.15 WgrM ........ .....................................22 ii t6r. flt- An M. 4. WOM —mom —Mwm=m� s TABLE OF EXHIBITS EXHIBIT;A Benefitted Property EXHIBIT B Specific Facilities EXHIBIT C Fee Property EXHIBIT b Subordination Agreement EXHIBIT E IAC Benefitted Property DrXLARATiON OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, AIORTGAGE LIEN AND OTHER REMEDIES THIS DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST EFUSAL, MORTGAGE LIEU AND OTHER REMEDIES (this "Declaration") is made as 'of .A✓_, 199 by ani) between THE IRVINE COMPANYta Michigan corporation ("Declarant"), and N W ORT I IARl, OR ART MUSEUM, a California nonprofit public bereft corporation ("Grontee"1'! ith referctice to the following facts; i a A. Grantee and DeElas t entered into a Donation Agreement and Escrow Instructions (time "Donation Agreement") pursuant to which Grantee is acquiring from Declarant the following described real property (the "Property") situatod, in the City of Newport Beach, County of Orange, State of California: Parcel A: All of that certain real property more fully described on EXHIBIT C -I attached hereto and by this reference incorporated herein (the "Fee Property"). Parcel B: A permanent nonexclusive easement appurtenant to the Fee Property for access, ingress and egress by vehicles and pedestrians to and from the Fee Property and the adjoining public street over certain real property, all as more fully described in the Deelaratinit of Easements (as hereinafter defined). Parcel C: A permanent norwxclusive easement appurtenant to the Fee Property f -A surface drainage from -.he Fee Property over certain real property, all as more fully described in the Declaration of Easements (as hereinafter defined). B. In connection with such acquisition, Grantee has represented to Declarant that it is acquiring the Property to use the same n accordance with the covenants, conditions, rights, restrictions and limitations as particularly set forth herein (collectively referred to as the "Restrictions"), and Declarant is donating the Property to Grantee on the basis of grantee's Continuing compliance with such Restrictions. NOW, THEREFORE, in eonsid--ration of the foregoing (including the conveyance of the Property by Declarant to Grantee), and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: Article 1. GENERAL PROVISIONS. 1.1 Grantee's Reprc;;tuatiall and Wirranties, GRANTEE REPRESENTS AND WARRANTS TO DECLARANT THAT GRANTEE HAS ACQUIRED THE PROPERTY TO USE THE SAME IN COMPLIANCE WITH TILE RESTRICTIONS SET P4RTH I�EREIN AND FOR THE PARTICULAR USES AND PURPOSES }IUTIIORIIED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT: (a)GRANTEE IS EXPERIENCED AND KNOWLEDGEABLE IN THE OPERATION OF ART MUSaUMS AND DECLARANT AND GRANTEE DESIRE To PROVIDE A QUALITY MUSEUM rot . LOCAL CULTURAL ENRICHMENT; (b) DECLARANt HAS DONATED AND GRANTEE HA$ ACCEPTED TITLE TO THE PROPERTY FOR USE BY GRANTEE IN ACCORDANCE W[ni, THE PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DECLARANT AND GRANTEE DO NOT EXPECT OR INTEND THE ttt.zsnpratsrti<s.ntsnno,�r,�r to, tv9s � <> o":raru;ei, i Ncwjwt timtor An Mm m -CT PROPERTY TO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PEMtTTED HEREIN; (d) THE LIKELIHOOD THAT ANY BREACH WILL OCCUR AND THAT DE(;LARANT WILL EXERCISE ANY 01F ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EX RE�IELY REMOTE; (e) WITHOUT Til; RESTRICTIONS CONTAINED HEREIN, THE PURPOES AND EXPECTATIONS OF DECLARANT AND GRANTEE TO PROVIDE A LOCAL CULTURAL BENEFIT TO THE COMMUNITY SURROUNDING THE LAND COULD BE DEFEA'T`ED; AND (f) BUT FOR DONATION CIF THE PROPERTY, GRANTEE MIGHT BE REQUIRED TO PAY SUBSTANTIAL SUMS TO ?URCHASE PROPERTY FOR ITS USES IN COMPETIT16N WITH DEVELOPERS OF COMMERCIAL OFFICE AND/OR RETAIL PROPERTIES. \ BUT FOR SUCH REPRESENTATIONS BY GRANTEE, AND GRANTEE'S UNIQUE SKILLS, EXPERTISE AND SUITABILITY IN OPERATION OF ART MUSEUM FACILITIES, DECLARANT WOULD NOT HAVE, DONATED THE PROPERTY TO GRANTEE, BUT WOULD HAVE RETAINED THE BENEFITS OF OWNERSHIP, INCLUDING FUTURE APPRECIATION OF THE PROPERTY. ON Tilt BASIS OF SUCH REPRESENTATIONS AND WARRANTIES, DECLARANT HAS DONATED THE PROPERTY TO GRANTEE, 1.2 StatenentofDeciaranesgeneral PUMoses. Declarant is the owner ofa large and unique landholding, part of which has been developed as a master planned business, recreational, institutional and retail center, described below, in the City of Newport Beach (the "City"}_ Amcng the distinguishing characteristics of this master planned center are the Clear delineation of use areas throughout the Center, defines below, together with the strict exercise of architectural and occupancy controls over individual construction projects, so as to ensure the harmonious growth and develcpment of the Center and the maximizFtion of the value of Declarant's developed and undeveloped landholdings as well as the Property itself; In addition to those general concerns, it is vitally important to Declarant that the intensity of development shall be limited on those parcels of property (including the Property) that Declarant from time to time elects to convey to third patties. Should the development limitations imposed by Declarant be exceeded, the roadways and the infrastructure improvements servicing the Center and its environs could be overutilized, resuld-ig in undesirable traffic congestion and housing and/or commercial imbalances within the Center, Such conditions could in tutu adversely affect the ability of Declarant to develop, own, operate, lease Or sell its landownings, including without limitation the '%encored Property" as defined below. It is to promote these purposes that this Declaration is made, and it is the intentionof 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_ to them below: 1.3 Definlrons, As used herein, the following terms shall have the meanings given (a) 'Benefitted Property" shall mean all real property in Orange County, California which Declarant currently owns, including, without limitation the real property descrited on EXHIBIT A attached hereto and which Declarant continues to own`ar the time of enforcement of the applicable Restrictions. Declsr'ant shall have the right by a duly recorded amendment `hereto to unilaterally substitute for or add'to the Beneficed Property described on EXHIBIT A any rea) property ie Orange County, California which Declarant owns as of the date of this Declaration and eorainses to III .Z",PrMSPLNs,MSMNaa� to. 1996 D.ctanma �. 2 N"p,n 11.6. M ) lz= P rl t own through and after the date of such substitution or addition. The Benefitted l dominant tenement and the Property shall be the servient tenement for purposes of shall be the aration. (b) "Center" shall mean the office, hotel, retail, recreational I, apartment and institutional area commonly known as Newport Center (including the shopping center knowr. as Fashion Island) and generally lyirg within the area enclosed by Pacific Coast Highway, MacArthur Boulevard, San Joaquin Hills Road and Jamboree Road. (-) "Declarant" shall mean The Irvine Company as identified above and its successors, assigns or designees who shall assume the obligation and to whom The Irvine Company shall Specifically assign in writing the right to enforce these Restrictions, subject to the provisions of the Section entitled "Assignment by Declarant." (d) "Declaration of Easements" shall mean that certain Declaration of Easements recorded October 31, 1995, as Ittstrnment No. 19950484848 in the Official Records of Orange County and incorporated herein by this reference. i (e) "Drainage Easement" shall mean that certain permanent nonexclusive casement for surface drainage from the Fee Property over certain adjacent real property more fully described in the Declaration of Easements. (1) "Ett'ectiFe Date" of this Declaration shall be the date this Declaration is recorded in the official records of Orange County, California. i, (g)' "Fee Property" shall mean that portion of the Property conveyed in fee by Declarant to Grantee more fully described on EXHIBIT C attached hereto. (hj "Grantee" shall mean the Grantee identified above and each and every successor, assignee, owner, Iessee, licensee or other occupant of the Property, or any portion thereof or interest therein, and each of them, during their ownership or occupancy thereof. However, such term shall not include any person having an interest in all or any portion of the Property mevely 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 Property, both the lessor and lessee under such lease shall be responsible as principals (and not sureties) for compliance with all the terms and provisions of this Declaration. } "Gross Floor Area" shall meanthe aggregate number of sgt.are feet of floor space on all floor levels of any building, including mezzanines, measured from the interior face of all exterior walls. No deductions or exclusions shall be made by reason of columns, stairs, elevators, escalators, or other interiotr;consuuction or equipment. (j} : "IAC" shall mean Irvine Apartment Communities, L.P., a Delaware limited partnership, or its successors or assigns_ (k) ; "IAC Benefitted Property" shall mean all real property in Orange County, California, which IAC currently owns, including without limitation the real property described on EXHIBIT E attached hereto and by this reference made a part hereof, and which IAC continues to own at the time of enforcement of the restriction contained in Section 2.1(d) <No Apartment Use} below. IAC snail have the right by' a duly recorded document to unilaterally substitute for or add to the IAC Benefitted Property described on EXHIBIT E any real property in Orange County, California, which IAC i. 111.25nereuruusuCN—b., 10, 1 $i > ' 3 ?h.7w, flat A" M- -cr W 5 r� owns as of the date brthis Development Declaration and continues to own through and after 'such substitution or addition. (1) "Joint Access EaseemenC shall mean that certain permanent nonexclusive easement for access, ingress and egress by vehicles and pedestrians to and from the Fee Property anti th. adjoining public street over the Joint Access Fasement Area more fully described in the Declaratlt n of Easements. i (m) "Joint Access Easement Area" shall mean that certain real pro `pert! subject to the Joint Access Easement more fully described and depicted In the Declaration of Easembnts. (n) "Restrictions" shall mean each and every covenant, condition, restriction, reservation, limitation or other provision of this Declaration. Article 2. SPECIFIC RESTRICTIONS_ 2.1 Specific Fac (a) Development and Continued Use. Grantee represents and agrees, that Grantee shall cause the Fee Property to be developed only with the specific facilities described on EXHIBIT B attached hereto (the "Specific Facilities") and in full accordance with all of the terms of this Declaration, and that Grantee shall cause the Fee Property and the Specific Facilities to be used solely for the use described in EXHIBIT R (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. Nt• portion of the Fee Property, or any :mprovements thereon, or any portion thereof, shall b,S developed. used, operated or maintained with any facilities or for any purpose whatsoever except as set forth above and in EXHIBIT B unless expressly approved by Declarant, which approval may be granted or withheld by Declarant in its sole discretion.. (b) Required Improvements. In addition to any such facilities constituting a part of the Specific Facilities, Grantee shall construct and install all driveways, curb cuts, entrytdays, sidewalks and the like, perimeter walls and fences, irrigation and drainage systems, landscaping, monument, directional or other signs and all like improvements on the Fee Property or between the Fee Property and adjoining sidewalks or tae curbs of adjoining streets, as necessary to the use of the Specific Facilities or as required by any governmental authority with jurisdiction. To the extent that such improvements are required to be installed (A) on a portion of the Fee Property adjoining any public sfreet or sidewalk or (B) between the Fee Property and adjoining sidewalks or the curbs of adjoining streets, and if the governmental authorities do�not install the same, Grantee shall,'at its sole cost and expense, also construct and install and thereafter repair and maintain the same; prbvided, however, that in the alternative, Declarant may, at Dechimm's sole option at any time and from time to time upon thirty (30) days' prior written notice to Grantee. i onstr'iA. install, maintain, repair, service, reconstruct, relocate and/or replace any or all such improvements and Grantee shall promptly reimburse Declarant for the reasonable cost and expenses of such work within thirty (30) days of receipt of Declarant's invoice therefor. (c) Tranmortation Corridor Fees. The Major Thoroughfare And Bridge Program For The San Joaquin Transportation Corridor (the "Fee ProgralAt") has been adopted by the County of Orange and the City and the; Property is subject to the provisions of such Fee Program. The Fee Program will result in additional Fees to be paid by Grantee as a condition to obtaining necessary 1(t.?STPFMSPt173 bt5LtiNambar ]0.(995 p„K„ d HuN. A. Ntp— t e r • c -+• �aast+r®r� R' C1 permits to construct Granfee's impro%eMents on the Fee Property. Grantee shall pay to Declarant i ny San Joaquin Transportation Corridor Fees at least ten (10) days prior to the date such Corridor Fees re due. Declarant shall make payment of such Corridor Fees or cause credits to be applied so as to sari fy such Corridor Fees not later than the last to occur of (i) ten (10) business days after receipt of notice t at such Corridor Fees are due or (ii) ten (10) business days after receipt of such Corridor Fees fr in Grantee. Declarant shall indemnify and hold Grantee harmless• against any charges imposed or Declarant's failure to satisfy such Corridor Fees if and to the extent that such Corridor Fees have been timely paid by Grantee to Declarant in accordance herewith. (d) No Arrartmcra Use. As set forth in the subsection above entitled "Development and Continued Use," the Property, the Specific Facilities, and any other improvetnepts located thereon are to be used solely for the use described in EXHIBIT B and therefore, by way'of exarnpie only, no portion of the Property or any improvements thereon may be held, developed, constructed, maintained, operated, used, leased or sold for rental apartment purposes at any time. Furthermore, no portion of the Property or any improvements thereon may be so developed or used for rental apartment purposes at any time prior to January 1, 2049 notwithstanding any amendment to tiiis Declaration or any other agreement tc that effect between Declarant and Grantee, without the express written consent in each case of IAC, which consent may be granted or withheld by IAC in its sole discretion. Declarant and Grantee hereby acknowledge that JAC is a third party beneficiary of zhe foregoing special covenant, with Ul eights to enforce the same as if IAC were a third party to this Declaration, and that such covenant sialt run and pass with each and every portion of the Property for the benefit of JAC, its successors and assigns, and the IAC Benefiued Property described on EXHIBIT' E attached hereto, it being intended for puiposes of this paragraph that the dominant tenement shall be the IAC Benefitted Property and the servient tenement shall be the Property. 1 2.2 Declarant's AUp povals. (a) Approvals Reouired. Neither the Specific Facilities, nor any other landscaping, grading or other improvements that have not first received the written approval of Declarant or which do not comply with the plants and specifications approved by Declarant shall be made or constructed in, about or on the Property; Declarant shall not unreasonably withhold its approval of any such site plan or plans and specification's so long as the site plan, plans and specifications and items described therein (i) are in harmony and conformity with other existing or proposed improvements on or in the vicinity of the Property and. with Declarant's master utility, circulation and general aesthetic, and architectural plans and criteria for the Property and the general area in which the Property is located, and (ii) comply with the other requirements of this Declaration. (b) Time fii Approvals. Declarant shall approve or disapprove any plans and specifications delivered to Declarant pursuant to this Article within thirty (30) days after receipt of three copies thereof. If approved by Declarant, such approval shall be endorsed on such pian and specifications and one set of such documents be. ring Declarant's approval shall be returned to Grantee within such thirty (30) day period. If DYclaratti2loes not approve such plans aiid specifications, Declarant shall within said thirty (30) day perioc notify Grantee of its reasons for not approving such plans and specifications and Grantee shall, within thirty (30) days after receiving notice'of Declarant's disapproval, submit new plans and specifications for Declarant's approval. Failure of Declarant to approve or disapprove any plans and specifications %vithin said thirty (30) day period and Declarant's continued failure to approve or disapprove for ten (10) days after Grantee's written notice to Declarant dlat Declarant has failed to approve or disapprove as required herein (which notice shall also state that failure to respond within ten (10) days of this nbtice shall be deemed approval of the items submitted) shall be deemed approval thereof. The approval by Declarant of any plans and specifications pursuant to this M . MPFttWLH3.MsOH- *" 10, M tk 6., Ni pMt nim An rimewn W I Section shall 6e approval only as to their conformity with the master plan and general architectural plan for the Brea. Such approval shall not he declnd approval for an engineering design nor a representation or warranty by Declarant as to the adequacy or such plans and specifications or the grading, landscaping, improvements or construction thereby for any use or purpose. BY approving such plans and specifications, Declarar liability or responsibility therefor or for any defect in any grading, landscaping, imp construction made pursuant thereto. and or t of assumes no vements or (c) As Built Pians. iJ on co letioii of the i P mP 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, land's caFing and construction conforms to theplans and specifications therefor approved by Declarant. 2.3 Srantee's Cos. The Specific Facilities, and all other landscaping, grading and other improvements made or constructed in, about or on the Fee Property as contemplated herein shalt be constructed, installed and completed at the sole cost and expense of Grantee and without any cost, liability or expense to Declararit_ 2.4 Fulfillment Of$eaulretnertts. Grantee sbalf be solely responsible, at its sole cost and expense, to satisfy 4 requirements (both on-site and off-site requirements) which are attribt table to Grantee's development of the flee Property or use of the Property, including but not limited to (i) the costs incurred in satisfying conditions or requirements applicable to the Property imposed by ap?licable governmental agencies, (H) requirements or conditions relating to traffic or roadway fees or improvements, (iii.) affordable housing requirements, (iv) school fees, (v) San Joaquin Transportation Corridor Fees, (vi) public park dedications or fees, (vii) library fees, (viii) capital improvement fees, and (ix) all other fees and charges; associated with or attributable to Grantee's development of the Fee Property or use of the Property. Except as provided in this Declaration, Declarant shalt not be required to make any improvements, pay any fees ar otherwise satisfy any requirements or conditions pertaining to the Property, including without limitation Declarant shall not be obligated to make any improvements to the Joint Access Easement Area. Furthermore, Grantee shall have no right to make any improvements to the Joint Access Easement Area.. 2.5 ConTEance with law. (a) Grantee to Comply. The Specific Facilities and all other landscaping, grading and other improveme ns made or constructed in, about or on the Fee Property, and the use thereof, shall comply at all tilnes with all public laws, ordinances and regulations applicable thereto. Without limiting the gcnerai:ty Of the foregoing, Grantee shall obtain, at its sole expense, all governmental approvals and peanuts which may from time to time be required with respect to the performance contemplated unJer this Declaration, including, as applicable and without limitation, appropriate zoning, building permits; permits ftam the California Coastal Commission, operating and business licenses and permits and the like. In obtaining such approvals and permits, Grantee shall prepare as necessary and without limitation, all environmental impact reports, engineering studies and the like as necessary. (b) Aprrovals of Applications. All requests or applications, togethe- with all supporting documentation, fir governmental approvals or permits which require discretionary action on the part of a governmental agency, shall be submitted to and coordinated and approved by Declarant prior to filing with the govemnental agency. Declarant shall have a period of thirty (30) days after 1n.171P P7.WKSClNm fir 10, 1995 1, i i I I -�r Dnknlioa N—T- fb,t r M hl—u F - .......��_ MIAMI 010111111", 1 1 J receipt to disapprove any MOWS 0r applications so submitted by Grantee, and ]m t C event of disapproval shall specify the reasons therefor. Failure to disapprove within such thirty n I day period and Declarant's continued fai:ure to approve or disapprove for ten (10) days after Grantee's w itten notlee that Declarant has failed to approve or disapprove as required hereunder (which notice shfl a:so state that failure to respond within ten (10) days of this notice shall be deemed approval of the iter) suhmitted) shall be deemed approval thereof. Declarant shall receive copies of all written communicatians between Grantee and the governmental agencies processing such requests or applications. 2.6 f[nk.tionaIly t7mitted.) 2.7 Bonds. Before the conimcricement of any of the work required under this Article 2, Grantee shall furnish to Ceciarant true copies of any and all labor and material bonds and faithful performance bonds, if any, required of Grantee by any governmental agency concerning such work. 2A Transfers. (a) Transfers Prohibited. For a period of not less than sixty (60) years after the Effective Date, Grantee shall not sell, lease, convey, exchange, encumber or otherwise transfer the Property or any portion thereof or interest therein or facilitles thereon, whether by agreement for sale or in any other manner (herein collectively referred to as a "transfer") without first giving DecIatant at least sixty (60) days' prior written notice of all terms and conditions of such proposed transfer and the tight to (i) approve or disapprove such transfer, (ii) 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 six}y (60) day period exercise any such right. if Declarant approves of a transfer, then Declarant shall not exercise its right of first refusal or its option to repurchase. Decarants 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. The transfer, assignment or hypothecation, directly or indirectly, whether in one orransacdon or a series of transactions, of more than twenty-five percent (25 %) of any equity membership, stock, partnership interest or other interest in Grantee shall be deemed a "transfer" within the meaning and provisions of this Section. Any time after the sixtieth (6M) anniversary of the Effective Date, Grantee may transfer the Property without Declarants approval under this Section and without regard to Declarants 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 h 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 d fianoperate an an museum which provides for local cultural enrichment. F (b) Permitted IMAM Notwithstanding the foregoing. Grantee may consummate (i) encumbrances on the Property as security for an interim or permanent loan or loans made in good faith and for value by an institutional leader, the proceeds of which are used only --or the construction of the Specific Fa=ilities t�' tefunancing of such a construction loan or for any other tr useum purposes of Grantee, and (ii) mergers of Grantee with another entity or entities which have a museum operation substantially similar no the museum operation of Grantee (collectively, "Pemlitted Transfers"). Prior to entering into a binding agreement to effect any merger permitted pursuam to subsection (ii) hereof, Grantee must notify Declarant of its intent to effect such a merger and to solicit the input of Declarant with respect to such proposed merger; provided, however, (A) Declarant shall keep such information confidential, and (B) Declarant's right to provide input does not include an right to disapprove or prohibit such purger. i 2,9 Subor6hation. Subject to the following provisions and the provisions rrf Section ,tf.^snPl?.t5F9S15 /.15CIHmmmer m, I44iAatuaam 7 N. -P.,,, 5 5.7 hereof, Dtrrlprant will subordinate Declarant's right of first refusal contained in61c!e 4, the mortgage lien contained in Section 5.1(d), and the option to repurchase contained in Section 5.3 (collectively, the "Enforcement Rights") to any encumbrance referred to In Section 2.8Q, immediately above (which Section 2.8(b) shall continuer in effect even after Section 2.8 no longer has an application to this Declaration, for purposes only of describing the encumbrances to which Declarant ill continue to subordinate certain of its rights as set forth in this Section) provided that the principal ar)tount of any such loan secured by an encumbrance upon the Property and/or the improvements construlctee thereon does not, In combination with other encumbrances then placed on the Property and/or the improvements constructed thereon, exceed at any time seventy-five percent (75%) of the fair market ,Value of the Property and any improvements thereon, valued taking into accouht the restrictions contained in this Declaration, and such Ioau is at commercially reasonable interest rates and otherwise contains commercially reasonable tetr-is and conditions. Grantee will provide Declarant with appraisal, information from a reputable M.A.I. appraiser or from an institutional lender reasonably satisfactory to Declarant to verify that the total Ioan-to=value rate does not exceed seventy-five percent (75 %). No foreclosure, trustee's sale or deed in lieu of foreclosure with respect to any such permitted encumbrance shall be deemed an "assigntnenr" for purposes of this Section. Within ten (10) working days after recei-3t of the following items, provided the foregoing requirements have been satisfied and provided there is no default under any provision of this Declaration or under any other obligation between Declarant and Gramee relating to the Property, Declarant shalt execute, acknowledge and deliver to Grantee an instrument in substantially the form attached bereto as MlBrr D effecting such subordination: (1) A true and complete copy of Grantee's executed mortgage or deed of trust and note secured thereby, and all other instruments evidencing or securing the indebtedness evidenced by said note. The TO or deed of trust encumbering the Property must not secure any obligation or indebtedness nit related to development of the Property, and neither the note nor the mortgage nor deed of trust shall contain any provision making it a default thereunder if the obligor or any other party defaults fief ary obligation not related to the development or use of the Property. (ii) A preliminary title report dated not earlier than fifteen (15) days prior to submittal showing -ro tide exceptions other than those in existence at the time Declarant transferred the Property to Grantee, other utility easements reasonably necessary to serve the Property, and other matters approved by Declarant; rif) A copy of the executed loan agreement or other agreement pertaining to the disbursement of funds, which trust provide in a manner satisfactory to Declarant that the funds disbursed rhereunder`wilt be used only to improve and benefit the Property, or to. refinance a loan made for such purpose (ti an amount not to exceed the amount outstanding under the cotts:ruction loan refinanced); and (iv) A copy of a Request for Notice of Default pursuant to Section 2924b of the California Civil Code prepared for execution and acknowledgment by Declarant which, when recorded at the expenseo'f will entitle Declarant to the notices prescribed by Said Section 2924b_ The ftrsl such recordable insrrumcm requested by Grantee shall be executed by Declarant free of charge upon the satisfaction of the above conditions. 'Thereafter Declarant may at its option require a payment by Grantee of One Thousand Dollars (51,000.00) as a condition to the ex:cution of each subsequent recordable instrument. i _.. -� , i] [.xSnPFM517.1ti5.ht5ClNo+cmbec 'A, 1493 7eelaa — N awn Itr Art hl— t t , I . ICY 4 I 7eelaa — N awn Itr Art hl— Article 3. GENERAL REST13lCTIf3NS, 3.1 Unapproved Development or Use. Unless expressly approved by Dec ast, which approval may be withheld by Declarant in its sole discretion, Grantee shall not permitsthe construction, maintenance, operations or use of any structure or improvements on the Fee Propertnor the use of the Joint Access Easerient, not in full compliance with all requirements of the lavj, this Declaration and any other covenant, conditions and restrictions from time to time covering the Property. 3.2 Floor Area Limitation. As described in Section 1.2 above, Buyer understands that the development potential of dip Benefitted Property and of other lands owned by Declararjt wilt depend in part on the intensity of teVelopment and use of the Property. Accordingly, Buyer covenants that without the prior written consent of Declarant, which consent may be withheld by Declarant in is sole discretion, in no event shall the collective Gross Floor Area of the Specific Facilities exceid fie permitted maximum Gross Floor Arra specified in P-XHIBIT B. 3.3 General )vtaintMgmce. Grantee shall maintain the Fee Property in a clean, sanitary, orderly and attractive condition, free of weeds, debris and pests_ Grantee shall at all times maintain the Specific Facilities, an`d all other improvements from time to time located on the Fee Property, including without limitation the landscaped areas, in first class condition, order and repair. Grantee shall not construct any new Improvements on the Fee Property or make any additions, alterations or other modifications ("alterations•') of or to the exterior of the Specific Facilities or the visible portions of any other improvements from time to time located on the Fee Property, without the prior written consent of Declarant. All new construction and all such alterations shall be subject to the provisions 3f Article 2 hereof. As used in this Section the `exterior" of the Specific Facilities shall mean all roofs, outside walls and facades, strucrura: foundation, entrance doors, windows, outside walkways, snips and other accessways, and parking facil`.ties, and "alterations" to "other improvements" shall include without limitation all additions, removals and replacements of large plantings, 3A Restoration. If any building or improvement on the Fee Property, or any part thereof, or any landscaping installed upon the Fee Property, 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 plans thereof or to such modified plans as shall be previously; roved in writing by Declarant as provided above, or (ii) demolish such damaged or destroyed improvements and leave the Fee Propery (or applicable portion thereof) in a clean and safe condition. Such repair, restoration or demolition shat be commenced within one hundred twenty (120) days after the damage or loss occurs and shall be completed with due diligence but notlonger than ane (I) year after such work is commenced. The time periods specified in this subparagraph entitled "Restoration" shall be extended as provided in the Sectiun of this Declaration entitled "Unavoidable Delay," 3.5 Drainage. C,rantee shall not drain or discharge: water from the Fee Proper -.y (including but not limited to rain water and: water from landscape sprinkler systems located on the Fee Property) on to adjacent land except as follows: Grantee shall at all timeh cause the Fee Property to be graded and drained so as to cause tte discharge of all water from the Fee Property onto the public'stree-t adjoining the Fee Property, or into alt established drainage facility approved by the City, if any, on or adjacent to the Fee Property, or in accordance with the Drainage Easement. Declarant acknowledges that the current drainage from the Fee Property and the existing improvements thereon is acceptable ro Declarant. 3.6 ilntentios1aty Omitted.] i1.2"PF61iPolt AS(AN.—Wr m, 19" NJ -1- 9 Nc+T7 lwtw An Mn i � _' • 1■nem- � —.__ .:_- 3.7 Siens. Grantee shall not place or use any signs, banners, balloons, displays IT other advertising media in, on, about cr'above the property or on or in any improvements constructed or placed thereon unless it has first obm ned the prior written consent of Declarant as to the number, si;l, location, height, illumination, color and design of such signs or other media. Declarant shall nit unreasonably withhold such approval so long as such signs or other media (a) comply with (I) Declarant s sign program for the Property, the property surrounding the Property and the Benefitted Property, if any, and (if) the statutes, ordinances or regulations of any governmental entity or agency having jurisdicti n thereover and (b) are in harmony and conformity with the existing or proposed improvements on or in the vicinity of the Property and with De--iarant's general aesthetic and architectural plans and criteria for the Property and the general area in wtich the Property is located. Except as provided in this Sectio& no sign, banner, balloon, display or otter• advertising media which is visible from adjacent land or any public or private street shall be maintained in, on, about or above the Property or on or in any imprukements constructed or placed thereon. 3.8 Prohibited Operations and Uses. No use or operation shall be made, conducted or permitted ortor with respect to all ar any pan of the Property or improvements thereon which is obnoxious to or out of harmony with the'residential and/or commercial neighborhood in the vicinity of the Property.. Included among 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: (a) Any public or private nuisance; (b) Any vibration, noise, sound or disturbance that is objectionable due to intermittence, heat, frequency, shrillness or loudness; (c) Any direct lighting which is not shielded and confined within site boundaries; (d) Any emission of odors, noxious, caustic or corrosive 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, shack, garage, barn or other outbuilding_ No trailer, camper, bus, automobile, motorcycle, boat, or other vehicle or equipment shall be permittee to remain upon the property excepj when parked on regular paved parking area during normal business hours and incident to the uses of tpe Property contemplated by this Declaration; �r (g) Any raising, breeding or keeping of animals, livestock or poultry of any kind; provided, however, that live animals may be permitted within the interior of the Specific Facilities screened from view from the outside if (i) the presence of such live animals is not prohibited by applicable governmental authorities; (ii) the presence of such live animals is in conjunction with an art exhibition and (iii) no noxious or objectionable smells or sounds shall emanate from the interior of the Specific Facilities; (h) Any clotheslines, woodpiles or fuel storage of any type; ut.+snrFMsrta;s.Mmta�wtr. ta;9ss !� a Deduuxn Io NcKpoq Ifartwt M Muscuq� rr a �i r i� y (i) Any accumulation of rubbish, trash or garbage. All ref1we containers, air conditioning devices, utility areas, storage areas and machinery and equipment shall be prohibited upon the Property unless screened from view from all adjoining lots and public and private streets; 0) Any exterior radio antenna, television antenna, "C.B." antenna, "s'atei it. dish," microwave transmitting or teceiving antenna or other antenna, transmitting or receiving device of any type unless it is (i) screened from view from all adjoining lots and public and private streets, :inti approved in writing by Declarant, which approval may be withheld by Declarant in its sole disc' eticn; (k) Any, electro -mechanical or electro -magnetic disturbance or radiation; End (1) Any business that is sexually oriented, such as businesses offering ni-de or semi-nude entcrWmimenr, massage parlors, at services, adult theaters and/or book stores, and similar businesses. Ary screen required under this Section shall consist of permanent landscaping and/or improvements :omplying in all respects with the provisions of Sections 2,1 and 2.2 above and be approved in writing by Declarant. The provisions of this Section entitled "Prohibil.ed Operations and Uses" shall not instI way supersede the other Restrictions.- 3.9 No Subdivision. Grantee shall not effect any change or amendment to any map or lot tine adjustment covering the Property or record any parcel or final map or lot line adjustment of the Property or any portion thereof or facilities thereon pursuant to the California Subdivision Map Act (California Government Code Section 664 10 et seq.) or any similar or successor statute hel eafter enacted and/or any similar local ordinances,'or file any tentative maps or applications with respect thereto with any governmental agency, nor steal: Grantee file or record a condominium plan covering the Property or any portion thereof or any improvements thereon or any applications with respect thereto, or (b) take any action to cause the Property or ang Portion thereof to be or become a "common interest development" (as defined in California Civil Code Section 1351(c) or any similar or successor statute), unless expressly approved by Declarant, which approval may be withheld by Declarant in its sole discretion, 3.10 Zonin . Grantee shall not use br develop or attempt to use or develop the Property or any portion thereof for any purpose other than those purposes expressly allowed (without tie benefit of a zoning variance, exception or other special administrative procedure) under the zoning ordinance or ordinances of the governmental entity having zoning jurisdiction over the Property. Additionally, Grantee shall not at any time change or attempt any change in zoning, or obtain or apply for a conditional use permit, zonin,,'variance or exception or other similar approval with respect to the use or development of the Property or any portion thereof not expressly allowed under such existing zoning ordinance, unless expressly approved by Declarant, which approyat may be withheld in its scle discretion. Notwithstanding the foregoing ,Deciarant shall not unreasonably withhold its consent to Grantee's application for such con3itional use permit as may be required for development of the F`e Property with the Specific Facilities, Grantee shall obtain Declaram's consent prior to submitting asy such application or related document to any governmental agency and thereafter will submit copies of all such documents to Declarant for its review and information. 3.11 Assessment Districts and Associations. The Property is within Newport.. Mesa Unified School District Comm u ki Facilities District No. 90-1 and may be included within such additional future assessment districts,'landscape maintenance districts andlor community facilities districts as may be created from time to time to Pay for the installation and iiiaintcnance of certain roads. _ Ir-zsrxxtions, overpasses, freeway interchanges, flood control facilities, community or municipal faeilith% III ?5ZPFhUK.N5 MSCkK.,-&� 10, 1945 1 IkcWr.an l 1 lrwpttt Itxhx Ag btm stn (such as fire or police statiors, schools or public library facilities) and other offsite o related improvements. The Property may also be included within one or more membership associatio as may be created from time to time forthe purpose of providing for the installation and maintei anee of landscape improvements, private !beets, monuments, signs and other improvements construct et� or to be constructed in connection with itc development of surrounding areas. Grantee shall be fully respotuible for the payment Of its pro rata s_iire of all assessments imposed with respect to the Property b' reason of any such district(s) or associat on(s). Grantee will cooperate in good faith as the owner of theroperty with Declarant in the formation cf arty such districts) or association(s), and hereby covenants to sign and deliver such further documents &-4take such further action as may be reasonably required in connection therewith. Grantee further covenants as the owner of the Property not to oppose, protest or object to the formation of any such district(s) or association(s), regardless of whether or not the same will directly benefit Grantee or the Property- provided that nothing herein shall be construed as (a) a prohibition i against a protest by Grantee of the proportion of any assessment which may be allocable to or assessed against the Property or any other property owned by Grantee by any such district(s) or associatibn(s), or (b) a waiver of any rights of Grantee as the owner of any other property to oppose. protest or objezt to the formation of any such distrIc.(s) or association(s), 3.12 Indemnity: Declarant and Declarant's divisions, subsidiaries, partners and affiliated companies and its and their past, present and future employees, officers, directors, shareliolcers, agents, representatives and professional consultants and its and their respective successors and assigns (collectively, the "Indemnitees") shall not be liable for any loss, damage, injury or claim of any .ind or character to any person or property arising from or caused by (a) the development, maintenance, use, lease or other conveyance of the Fee Property or improvements thereon or any portion thereof or interest therein, including, without limitation, any toss, damage, injury or claim arising from or caused by or alleged to arise from or be caused 6y (i) any use of the Fee Property or any part theregf, (ii) any defect in the design, construction of, or rnaterial in any structure or other improvement upon the Fee Property, (iii) any defect in soils or in the preparation of soils or in the design and accomplishment of grading, (iv) the presence or existence of any comaminams or hazardous or toxic substances, materials or waste in or on the soil or ground water of the improvements on the Fee Property, whether known or dnitn�wn and whether resulting from occurrences prior to or after the Effective Date, such as but not limited to asbestos in the building located on the Fee Property, including without limitation liability under the Comprehensive Environmental Response, Compensation and Liability Act, the California Environmental Quality Act or any other law, (r) any act or omissioft of Grantee or any of its agents, employ --es, licensees, invitees or contractors, (vi) any accident or casualty on the Fee Property, (vii) any representations by Grantee or any of its agents or employees, (viii) any'violation or alleged violation by Grantee, its employees or agents c -f any law now or hereafter enacted, (ik) any slope failure or subsurIce geologic or groundwater condition, (x) any work of design, construction, engineering or other work with respect to the Fee Property provided or performed by or for Declarant either before or after the Effective Date hereof, (xi) the act or omission of any membership association or committee, officer, agent or representative thereof relating to the Fee Property or the improvements: thereon or the occupancy or use thereof, whether or not Declarant or any ,ref the other Indemnitees are on the board of directors''of such association or are on a committee •-hereof or are an officer, agent or representative thereof, (xii) any other cause whatsoever in connection with Grantee's use of the Fee Property, or Grantee's performance under this Declaration or any other agreement with Declarant relating to the Fee Property, (xiii) the appiica.ion of the principles of strict liability with respect to any act or omission of Grantee or its agents, employees, licensees, invitees or contractors i -t connection with the ownership, use or occupancy of the Fee Property after the date hereof, or (xiv) the application of the principles of strict liability with respect to Grantee or Declarant or their respective asents, employees, licensees, invitces or contractors in connection with the grading of the Fee Property, andlor the existence of any contaminants or hazardous materials in or on the soil, (b) the negligence or wilful misconduct of Grantee or its employees or agents; in the I nl.$TPtTtsrlN5 MatWavemla 16. 1995 "' llntusii,n F 12 S—,r at I lut- An hl— development, construction, grading ar other work performed off the Fee Property by Grantee puryuant to this Declaration or any defect In aiYy such work, (c) the breach by Grantee of any of its obliga iona under this Declaration, (d) the use cf the Joint Access Easement by Grantee, its employees, lice �ecs. invitees, agents or other users of t1c Joint Access Easement, including, without limitation, any�oss, damage, injury or claim alleged to aripe from or be caused by any use of the Joint Ace= Easeme t or any pan thereof, or (e) except as otherwise provided in Section 3,5 hereof, the use of t}te Drai�rage Easement by Grantee, including, without limitation, any loss, damage, injury or claim alleged to lirist from or be caused by any use of the Drainage Easement or any part thereof,, Furthermore, as a materia) part of the consideration of this Declaration, Grantee hereby waives on its behalf all claims and demands against Declarant and the other Indemnitees for any such loss, damage, or injury of Grantee, and agrees to indemnify, defend and hold harmless Declarant and its property, and the other indemnitees front 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, Declarant, the Indemnitees 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 shall apply to losses, damages, injuries or claims incurred directly by Declarant of any other Indemnitee_ 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 sh-,11 apply irrespective of Declarant's approval, recommendation or other direction. Notwithstanding any_liing to the contrary above, nothing contained in this Section shall operate to (a) relieve any Indemnitee from any loss, damage, injury or claim ultimately established by a court of competent jurisdiction to hx.?e been caused solely by the gross negligence or willful misconduct of such Indemnitee, or (b) relieve any prior owner of the Property from any loss, damage, injury or claim for any contaminants or hazardous or toxic substances, materials or waste in or on the soil or ground water or the improvements on the Fee Property arising from the use of the Fee Property by such prior owner. Grantee's covenants in this $ecuon arising from or related to acts or occurrences during the time of Grantee's ownership shall survive Ste lease or other conveyance of all or any part of the Property or improvements thereon and shall be binding on Grantee (as well as its successors to the Property) until the last to occur of such date as action against the Indemnitees is absolutely barred by an applicable statute of limitations or such date as al! claims and actions for which indemnification may be claimed are fully and finally resolved and, if applicable, all compromises thereof and judgments and awards thereon are paid in full and the Indemnitees, and each of them, are reimbursed for all amounts paid by them in the compromises thereof and upon the judgments and awards thereon and in defense of such actions and claims, including actual attorneys' fees. If any action or proceeding shall be brought against an Indemnitee for which Grantee is to provide indemnification. Grantee, upon notice from the Indemnitee, shall defend the same at its expense by Counsel approved in writing by such Indemnitee. Payment shall not be a condition precedent to recovery under any indemnification in this Declaration. Article 4, DECLARANTS RIGHT OF FIRST REFUSAL. Except with regard te.:"Permitted Transfers" described in the Section above entitled "Transfers," if at any time prior to the sixtieth (60th) anniversary of the Effective Date Grantee shall determine to sell all or any part of the Property or the improvements thereon or any interest therein ("Interest"), Grantee shall notify Declarant of the price and the terms on which Grantee will be willing to sell and all relevant information which would reasonably be relied upon in evaluating whether to acquire the Property (including but not limited to a recent preliminary bile report, a list of known litigation, notices, citations and other material matters affecting the Property, and the most recent Environmental Site Assessments obtained by or in the possession of Grantee concerning the Property.) If Declarant, within sixty (60) days of ; 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, Grantee shall sell and til 'S'>•rFAt9't.1.i.M5t5NmaN,er t0, 1991 I' „ Decbni:n 13 Ncun,ut flarlwrc An Atuacwn .:r 10 Of convey the Interest to Declarant for the price and on the terms stated In such notice, If Deciara it does not indicate its agreement within such sixty (60) day period, Grantee thereafter shall have the righ to sell and convey the Interest to a third party, but only for a price not less than the price offered to DItarant _ and on terms not more favorable flan those stated in the notice. If Grantee does not so sell and om.ey the Interest within one hundred eighty (180) days after Grantee's notice, any further trar#ctlons (including a transaction on the satre'price and terms previously Submitted to Declarant) shall be deemed a new determination by Grantee to sell and convey said Interest, and the provisions of this Article shall again be applicable. The obligatiu is of this Paragraph shall survive any sale of the Property 4nd be binding upon Grantee and its sudcessors and assigns: Article S. REMEDIES. i 5.1 Default and General Remedies. In the event of any breach, violation or failure to perform or satisfy any of the Restrictions which has not been cured within the applicable cure perixl as set forth below, Declarant at i-5 sole option and discretion may enforce any one or more of the following remedies or any other rights or remedies to which Declarant may be entitled by law or equity, whether or not set forth herein. Unless a cure period is otherwise specifically designated, Such cure period shall commence when written notice is given to Grantee of a violation hereunder and shall end ten (10) days thereafter in the case of a monetary default and thirty (30) days thereafter in the case of a non - monetary default; provided that if a non -monetary default is not reasonably susceptible of cure promptly within the thirty (30) day period, -.hen Grantee shall have a reasonable time to cure Same so long as Grantee has commenced such cure promptly within the thirty (30) day period and thereafter diligently prosecutes the cure to completion. To the maximum extent allowable by law, all remedies provided herein or by law or equity shall be'cumulative and not exclusive; provided, however, that except as provided in the following sentence :n the event Declarant elects to exercise any remedy 07 6vided for :n Section 5.3 hereof based upon a particular violation of the Restrictions, such remedy shall be DeelaranCs sole and exclusive remedy for such violation of the Restrictions, although such remedy may be sought in the alternative with other available remedies in any legal action. Notwithstanding the foregoing, Declarant's remedies for a violation or breach of Section 3.12 (Indenmity) shall be cumulative with and in addition to its remedies for other violations or breaches under this Declaration_ (a) Damages. 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) sit' . It is recognized that a particular or ongoing violation by Grano_ of one or more of the foregoing Restrictions may cause Declarant to suffer material injury or damage nct compensable in money (including, but not limited to irreparable effects on the type and quality of development on and use of the Benefitted Property or portions thereon), and that Declarant shall be entitled to bring an action in equity ar ;otherwise for specific performance to enforce compliance with the Restrictions or an injunction to enjoin the ccithmance of any such breach or violation thereof, whether or not Declarant exercises any other remedy set forth herein. (c) Abatement Any such breach or violation of these Restrictions or any provision hereof is hereby declared to be a nuisance, and Declarant shall be entitled to enter the Property and summarily abate and remove, without further legal process to the maximum extent permitted by law. any structure, thing or condition that may exist in violation of any of these Restrictions, or to prosecute any remedy allowed by law or equity' for the abatement of such nuisance against any person or entity acting or failing to act in violation of these Restrictions, all at the sole cost and expense of Grantee or any person having possession under -Grantee. Any costs or expenses paid or incurred by Declarant it.. tl[.2571PrAf5Pta15 MSC�Nanv Let 10. 1945 ! � Dslmuon 14 Nswi.m itartm An Muscw i I i .fr I ��T 1 mill't —.. 6 W Power of Sale. in the event Grantee fails to pay all or any portion of the indebtedness secured ,hereby within the applicable cure period therefor, then DecIatant may immediately cause a written notice of default and election to sell the Property (herein, "notice of Default") to be prepared and,filed for record in the Office of the Recorder of Orange County. After three months or such shorter time as may be allowed by law shall have elapsed from the recordation of such Notice of Default, and: after a notice of sale has been given to the extent required by the then applicable law, Declarant, without further legal action or demand on Grantee, may cause the Property to be sold at such time and place as may be fixed in said notice of sale or at such time and place :o which the sale may be postponed as hereinafter provided without additional notice, either as a whale or in separate parcels, and in such prder as Declarant alone may determine, at public auction to the highest bidder for cash in lawful money of the United States at the imre of sale, or upon such other leans as Declarant may consider advisable. Grantee shall have no right'to direct or determine whether the Property shall be sold as a whole or in separate parcels, or the order of sale of separate parcels or the portion of the Property to be sold if only a portion is sold. Declarant may postpone the sal-- of the Property by public announcement thereof at the time and place of sale and from time to time tl:ereafter by public announcement at the time and place of the preceding postponement. In conducting or postponing any such sale, Declarant may act through its agents, officers or employees or any oche: person designated by Declarant, wt_elher or not such party shall be a iicensed auctioneer. Ai such sale, Declarant shall cause to be delivered to the buyer or buyers one or more duly executed deeds conveying the property so sold, subject 'to all the provisions of this Declaration, but without any covenant or warranty, either express or in -plied. The recitals in such deed or deeds with regard to any matters of fact shall be conclusive proof of the truthfulness thereof against the buyer at such sale, its successors and assigns, and all other persons.; Any rvrson, including Declarant, may bid in or purchase at such sale. Grantee hereby agrees to surrender, immediately and without demand, possession of said property to the buyer at such sale. No such sale shall release or extinguish any rights, remedies or provisions ccntained in this Declaration In the even[ of any further violation of any Restriction set forth herein. (ii) Anplication of Proceeds. Declarant shall apply the proceeds of such sale in the following manlier and order: i I i ln'JMiU15Pt1V3.1f5C�NuKnS�er t0, tW5 ��� 1$ , �, l r abating such nuisance or pinseeuting any such remedy (including all reasonable attorneys' ees and costs of collection), 'ogether with interest thereon at the maximum contract rate then permitted by aw, shall be a charge against the Property, shall be a continuing lien thereon until paid, and shad alho be the personal obligation of Grantee or other person who was owner of the Property when such c rges became due and who committed such breach or violation. (d) hRortgage Lien. All costs, expenses, interest, fees an ogler sums required to be paid by Grantee to Declarant hereunder shall be secured by this Declaration' and Grantee hereby mortgages the Property and all improvements thereon to Declarant with pow4r of sale in accordance _ with Sections 2°20 et seq, of the California Civil Code and all other applicably statutes, for the purpose of securing alt said sums. Foreclosure of such mortgage Iien, by judicial foreclosure or under power of sale, to recover any such amount owed shall not extinguish the lien or any prevision of this Declaration, but shall C-* extinguish the �. mortgage lien created herein as it applies to ar secures amounts due hereunder as of the date of foreclosure and the mortgage lien created herein shall continue to exist for the purpose of securing any further amounts f s required to be paid hereunder by Grantee's successor (whether a successor by any such foreclosure sale or otherwise) to Declarant under this Declaration. Foreclosure of such mortgage lien shall not extinguish a lien which arises from a violation of any provision of this Declaration i r after such foreclosure even if such violation is a continuing violation f which also existed prior to tie foreclosure. W Power of Sale. in the event Grantee fails to pay all or any portion of the indebtedness secured ,hereby within the applicable cure period therefor, then DecIatant may immediately cause a written notice of default and election to sell the Property (herein, "notice of Default") to be prepared and,filed for record in the Office of the Recorder of Orange County. After three months or such shorter time as may be allowed by law shall have elapsed from the recordation of such Notice of Default, and: after a notice of sale has been given to the extent required by the then applicable law, Declarant, without further legal action or demand on Grantee, may cause the Property to be sold at such time and place as may be fixed in said notice of sale or at such time and place :o which the sale may be postponed as hereinafter provided without additional notice, either as a whale or in separate parcels, and in such prder as Declarant alone may determine, at public auction to the highest bidder for cash in lawful money of the United States at the imre of sale, or upon such other leans as Declarant may consider advisable. Grantee shall have no right'to direct or determine whether the Property shall be sold as a whole or in separate parcels, or the order of sale of separate parcels or the portion of the Property to be sold if only a portion is sold. Declarant may postpone the sal-- of the Property by public announcement thereof at the time and place of sale and from time to time tl:ereafter by public announcement at the time and place of the preceding postponement. In conducting or postponing any such sale, Declarant may act through its agents, officers or employees or any oche: person designated by Declarant, wt_elher or not such party shall be a iicensed auctioneer. Ai such sale, Declarant shall cause to be delivered to the buyer or buyers one or more duly executed deeds conveying the property so sold, subject 'to all the provisions of this Declaration, but without any covenant or warranty, either express or in -plied. The recitals in such deed or deeds with regard to any matters of fact shall be conclusive proof of the truthfulness thereof against the buyer at such sale, its successors and assigns, and all other persons.; Any rvrson, including Declarant, may bid in or purchase at such sale. Grantee hereby agrees to surrender, immediately and without demand, possession of said property to the buyer at such sale. No such sale shall release or extinguish any rights, remedies or provisions ccntained in this Declaration In the even[ of any further violation of any Restriction set forth herein. (ii) Anplication of Proceeds. Declarant shall apply the proceeds of such sale in the following manlier and order: i I i ln'JMiU15Pt1V3.1f5C�NuKnS�er t0, tW5 ��� 1$ , �, l r (A) Expenses of such sale and all costs, fees, expenses of Declarant, including costs of evidence of title and reasonable attorneys' fees; (i3) All sums secured hereby; and anc: entitled thereto. (C) The remainder, if any, to the person or persons leq'alIy i (iii) , Foreclosure —by Court Attion. In addition to the foregoing, Declarant may foreclose the lien erea!ed hereby by court action in the manner provided by the laws then applicable to this indenture, in which case Grantee agrees to pay all costs and expenses thereof, including reasonable attorneys' fees as the court may determdne. (iv) Waiver of Staoste of Limitations. To the maximum extent permitted by law, Grantee expressly waives the benefit of and the right to plead and in any way take advantage of any and all statutes of I_rnitation, both as to the indebtedness secured hereby or any other provision hereof, and Grantee will upon request of Declarant execute and acknowledge (if necessary) further written extensions or waivers of the applicable statutes of limitations with respect to payment of any indebtedness secured hereby and iruerest thereon. (v) Notice of Sale. Grantee hereby requests that copies of the Notice of Default and any notice of sale hereunder be mailed to it at the address set forth below in Section S,T. Grantee agrees that any such notice or demand shall be deemed fully given to Grantee if mailed to it by registered mail at such address, or anymore recent address delivered to Declarant as provided below. 5,2 Inspection. Declarant or its authorized representatives may from rime to time, at any reasonable hours, enter upon and inspect the Property, site or any portion thereof or improvements thereon to ascertain compliance with the Restrictions, but without obligation to do so or liability therefor, 5.300ton. Upon any proposed, attempted or actual "transfer" in violation of the provisions of Section 2.8 above and upon any violation of the Restrictions itemized in Section 2.1(a) above (Development and Continued Use), Declarant, in its sole option and discretion, shall be entitled to repurchase the Property as provided below. (a) Grant of option. Grantee hereby grants to Declarant an exclusive option to repurchase the Property subject only o: (i) Current taxes not yet delinquent; (ii) Matters affecting title existing at the Effective Date of this Declaration, excluding any mortgage, deed5+f trust or similar instrument to which Declarant has subordinated the Enforcement Rights putsuani! to Section 2.9 above, (iii) Matters affecting title which are created, made, assumed, consented to or requested by Declarant, its successors or assigns, excluding any mortgage, deed of trust or similar instrument to which DeclaTLnt has subordinated the Enforcement Rights pursuant to Section 2.9 above; i (iv) Matters shown as printed exceptions in the standard form California Land Title Association owner's policy of title insurance; and - _- — of zsnm�seuu tsscwas fogs i, oatn6n ' ]t} lfcjv, Ifs'Opr MAlwciun �(A i s; r R (v: Nonimerfering easements for utilities used in connection improvements constt ld on the Property, The (b) EToercise of ©ption. Declarant may exercise its option torepurClt�� sse the Property by giving written notice to Grantee of Dectarant's election to repurchase within (i) sixty (60) days after receipt of Grantee's notice ofproposed "transfer" as provided in Section 2.8 (Transfers)' bone, (ii) within ninety (90) days after Declarant receives actual notice of any transfer or attempted tran'fer in violation of any provision in Section 2.8, or (iii) within ninety (90) days after Declarant receives actual notice of Grantee's violations of Section 2.1(a). For purposes of this Section 5.3, Declarant's actual notice shalt mean the actual notice to the corporate officer or project manager of Declarant having the responsibility of administering sales;of properties adjacent to and including the Property or the Qersan to whom notice may be addressed under Section $.7 of this Declaration, and no other persons. Ne f'ailLre 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 2.8 above shall constitute a waiver of Dechiranl's rights to exercise the Option upon any such transfer subject to section 2.8 which might be proposed, attempted or consummated at a lata tirne. No failure of Declarant to exercise its option in the evens of Grantee's violation of Section 2.1(a) shall constitute a waiver of its right to exercise the option upon a subsequent or continuing violation of Section 2.1(a). (c) Restoration: Grantee's Improvements. Within ninety (90) days after notice by Declarant of exercise of its option, Grantee at its sole cost and expense (i) may remove from the Fee Property all structures, buildings, pavings, landscaping and other improvements (collectively, the "Grantee's improvements") and all materials of whatever nature deposited by Grantee at any. time . hereafter upon the Fee Property, and. (ii) shall restore the Fee Property to at least as good condition as existed at the Effective Date hereof. All of such work shall be accomplished to the sole but reasonab e satisfaction of Declarant_ if the Fee'Property is not so restored, then Declarant may accgmplish such restoration and shall be entitled to a reimbursement in an amount equal to the cost of accomplishing such restoration within ten (10) days of, a demand therefor. Any Grantee's Improvements not so removed by Grantee within such ninety (90) day period shall automatically become the property of Declarant without the payment of further consideratior- and without the necessity of any further conveyance or bill of sale. (d) Exp'sationand 0uiuiaim. Unless exercised by Declarant, this optlonsha't expire upon the sixtieth (Mh) anniversaty of the Effective Date. Aftyt apirittion anti upon written requegl therafor by Grantee, Declarann t spaexecute and dstfvt;r to Grantee a gttite4aim deed satisfactory to Declarant relinquishing all of its rights under the option to repurchase portion of this Declaration. (e) Price, The purchase price upon exercise of the option shall be: (i) All costs incurred by Granieepursugnt to the Donation Agreement which were paid through escrow in connection with the acquisition of the Property: less (ii) Allcosts, expenses, interest, fees, advances and other sums required to be paid by Grantee to DeclarAlereunder, to the extent not reimbursed to Declarant by Grantee, shall reduce the amount of the purchase price to be paid by Declarant under the terms of this repurchase option. ~" (f) Repurchase Escrow Temps. 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 tc consummate the purchase as specified, herein, which escrow shall have a time limit of thirty (30) days. — . to-M1SNan hlsou bm Ta, 1995 17 "" .-- Ncrtun nxrNx An l{uuwn 5 r %7 I, r ' •i I®Wlrtai4err�asme�... — 5 r %7 Said escrow shall be subject only to, approval by Declarant of a then current preliminary title repo..tt. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by writte'h notice to Grantee through escrow, shalt be removed by Grantee at its sole expense at or prior to chsing of escrow. In the event that the Prcperty or any portion thereof is encumbered by a mortgage or deed of trust, Declarant may unilaterally instruct the escrow agent to satisfy tire indebtedness secured thereby out of the proceeds payable to Grantee, through the foregoing escrow. Any additional amount neceisary to satisfy such indebtedness and release such mortgage or deed or trust at the close of escrow shall � paid by Grantee. Grantee and Declarant shall each pay one-half of the escrow fees. Declarant shall pay for documentary tax stamps, for reccrding 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 Property 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 expenses shall be allocated between the patties in the manner customary in Orange County, California. (g) irrevocability. The option created hereby shall be irrevocable by Grandee, and shall be binding upon the representatives, successors and assigns of Grantee. (h) Warranties. Plans and Specifications. In the event Declarant reacquires all or any portion of the Property ai the Specific Facilities under this Section 5.3, Gaaratee shall assign and transfer to Declarant for no aeditional consideration all warranties, plans and specifications relating to the Grantee's improvements not removed by Grantee and any other improvements transferred by Grantee to Declarant hereunder. 5.4 flntentionally Ontiited.j t. 5.5 Waiver. No waiver by Dectarant,of a breach of any of the Restrictions by Grantee and no delay or failure to 'enforce any of the Restrictions shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other of the Restrictions. No waiver of any breach or default of Grantee hereunder shall be implied from any omission by Declarant to take any action on account of such breath or default if such breach or defanli persists or is repeated, and no express waiver shall affect a bteacii or default other than as specified in said waiver. The consent or approval by Declarant to or of any act by Grantee requiring DeclarantIs consent or approval shall not be deemed to waive or render unneM�siry Declarant's consent or approval to or of any subsequent similar acts by Grantee. 5.6 Costs of Enforcement. to the event any legal or equitable action or proceeding shall be instituted between Declarant and Grantee in connection with this Declaration or the Property to enforce any provision of this Declaration, the party prevailing in such action shall be entitled to recover from the losing party all of its cost. including court costs and reasonable attorneys' fees. 5.7 Rights 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 evade in good faith and for value with respect to & a development or permanent financing of the Property or any gonion thereof; provided, however, that tl.is Declaration and all provisions hereof shall be binding upon and effective against any subsequent owner or other occupant of the Property or portion thereof whose tide is acquired by foreclosure, trustee'ssiie, deed in lieu of foreclosure or otherwise, but (a) such subsequeit owner shall have a reasonable time after acquiring title in which to cure any violations or correct and change any facts giving rise to Decla ant's rights under this Declaration occurring prior to such transfer of title or occupancy and which are reasonably capable of being cured or changed provided thafi such subsequent owner diligently acts to effect such cure or change (and in the event of such diligent and 11115riPFRtS LM &tSLlNmmWcr to. l99s noc1arui.n ,i 18 Nmprt itulw An Sloven timely cure, such subseq!,,nt owner shall have no further liability in connection with such prior violas ton or the continued existence of such violation until such cure is completed), and (b) Sections 5. (a) (Damages), S. t (c) (Abatement) and 5.3 (Option) shall not be applicable as to such subsequent owner N ith regard to arty noncurable default occurring prior to the time such subsequent owner acquired t de. Notwithstanding the foregoing, any such subsequent owner shall be required to use the Properg1 In accordance with the restrictions set forth in Section 2.1(a) and diligently complete construction of tiny Specific Facilities which are incomplete on the date such subsequent owner acquires title, all subject to the requirements contained in this Declaration. For purposes of this Section, the constructionor installation of any improvement in violation of the requirements of this Declaration shall be deemed "curable" so tong as reconstruction, repair or replacement in a manner consistent with the requirements of this Declaration is physically and legally possible (without respect to cost). 5.8 Advances. Declarant shall be entitled to advance any sums Declarant in its sole disd'etion deems necessary to protect and preserve the security for its rights and interest under chis Declaration (including but not limited io sums for completion of construction of the Specific fiacilities 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 Property which appear to be prior to Deciarant's rights and interest under this Declaration), 41 of which advances together with interest at the maximum contract rate then permitted by law shall be paid to Declarant upon demand and shall be secured by the lien of this Declaration described in Section 5.1(d) above. 5.9 waiver of Jury Trial. Declarant and Grantee each acknowledges that it is aware of and has had the advice of counsel of its choice with respect to its rights to trial by jury, and each party does hereby expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or counterclaim brought by either party hereto against the other (andlor against its officers, directors, employees, agents, or subsidiary or affiliated entities) on or with regard to apy matters whatsoever arising out of or in any way connected with this Declaration, Grantee's use or occupancy of the Property, and/or any claim of injury or damage. Article b, fintentionally Omitted,] Article 7, ittitentionally Omitted.] Article S. GENERAL PROVISIONS. 8,1 Unavoidable Delay. Any prevention, delay or stoppage in the work of building the Specific Facilities and any other iclated improvements or other wont as provided for in this Declaration caused by strikes, lockours, actions or inaction of governmental bodies or public utility companies, acts of God, war, riots, civil insurrection, court injunction, inclement weather or other force of elements, inability to obtain labor of materials or reasonable substitutes therefor, or other similar tatters or causes (excluding financial inability) beyond the reasonable control of Grantee, shall extend the time within which this Declarationrequires- main acts lobe performed for a period or periods equal to any period of such prevention, delay or stoppage; provided, however, 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 solely because of the financial condition of Grantee. Without limiting the generality of tie foregoing, in no event shall Grantee's inability to obtain construction or permanent financing fa- development of the Property, or a portion thereof, constitute an unavoidable delay pursuant to this Section. Furthermore, in no event shall any extension of any period of time be deemed to have occurred unless Grantee shall have given written notice to Declarant within fifteen (15) days following any such delay, setting forth the facts giving rise to such extension; aitd -�... — i1L.•3:.fFntSPLN3 MStlNove.nlxr !0, 1995 FkU,r�im 19 N.-J.H ilub.r nn M..;. h I i I provided further that the period of time for exerCg9e of Declarant's rights shall be commensurateb extended. 8.2 Continuous Ligations. Grantee shall proceed continuously and diligently i accordance with the terms and conditions of this Declaration. In the event Grantee does not procee" continuously and diligently, such failure to so proceed' may, at the option of Declarant, be considered a event of default herein, except as such t ilare is excused by reason of any unavoidable delay as set forth in the Section hereof entitled "UnavoidaAc Delay." 8.3 Covenants to Run with the Pmpeai Term. (a) Cavenangs to Run With the Property. The Property shall be held, developed, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the Restrictions set forth in this Declaration. The Restrictions arc for the benefit of the Benefitted Property and are intended and shall be construed as covenants and conditions running with and binding the Property and equitable servitudes upon the Property and every pan thereof. Furthermore, all and each of the Restrictions shall be binding upon and burden all persons having or acquiring any right, title or interesi in the Property, or any part thereof, and their successors and assigns, and shall inure to the benefit of the Senefitted 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 terms, provisions and conditions set forth herein. Every person or entity who now or hereafter owns or acquires any right, title or interest in the Property is and shall b. conclusively deemed to have consented and agreed to every Restriction contained herein, whether cr not any reference to this Declaration is contained in the instrument by which such person or entity acquired an interest in the Property. a (b) Term. All of the terms and provisions set forth in this Declaration shall continue in full force and effect in perpetuity, except that Declatant's "Enforcement Rights" (as described in Section 2.9 above) shall terminate sixty (60) years from the Effective Date hereof. 8.4 Assignment by Declarant. Declarant may assign any of its rights 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 d-aties of Declarant pertaining to the particular rights and powers assigned. Upon the recordation of such writing accepting such assignment and assuming such duties, such person or entity shall, to the extent of such assigrunent, have the same rights and powers and be subject to the same obligations and duties gas are given to and assumed by Declarant herein. Without limiting the generality of the foregoing, Declarant may make such assignment as to the entire Property or to any portion thereof. Unless specifically assigned in writing as stated in this paragraph, the Restrictions shall cease to benefit that portion of the Benefitted Property conveyed by Declarant to a third party and Declararu alone shall have the r gift to enforce the Restrictions and the other provisions of this Declaration or to recover damages or ether amounts for violation of the Restrictions or breach of. Grantee's duties hereunder. For purpose$ of tlbr}immediately preceding sentence, "Declarant" shall include a party affiliated with or related :o The Irvine Company which satisfies both of the following' requirements: (a) such party is (i) a person or entity which acquires twenty-five percent (25s%) ormore, of the assets of The Irvine Company, (ii) a division or subsidiary of The Irvine Company, (iii) or, partnership of which The Irvine Company has at least twenty-five percent (2556) interest in the profits' and distributions of such partnership, (iv) a real estate investment or other entity formed by or through, the efforts of The Irvine Company and regarding which The Irvine Company owns not less than twenty five percent (25%) of the stock or other ownership interest, (v) an entity resulting from a merger with or an acquisition by or of The Irvine Company, or (vi) a person or entity owning the majority of stock tet.xrnrnuruvs.Mstw�t,rr tq rous 20 Nc"M IbrWr An Mo= or other ownership int!�est in either The Irvine Company or any entity described in (i) through (v) Ibove; and (b) such party acquires all or same part of the Benefitted Property. 8.5 Amendments: Except as provided in this Declaration concerning (a) substi�ution of other real property as the BenePttted Property, (b) release of any portion or all of the Property:fro. n this Declaration, (c) reacquisition c -f the Property by Declarant and (d) assignment by Declarant I!of its rights under this Deciaration, this D=laration may be terminated, extended or amended only by a w�ritirg executed by Declarant and Grantee and recorded against the Property, &6 Release, .: (a) Release by Declarant. Declarant may release any portion of the Property from this Declaration at arty time and for any reason without the approval of otantee. Declarant shalt also, upon written request from Grantee, release any portion of the Property dedicated or otherwise conveyed to and accepted by a public entity or public utility, (b) Not Applicable to Declarant. Notwithstanding anything herein contained to the contrary, if Declarant reacquires title to the Property or any portion thereof at any time after the date hereof and record(s) a notice of termination of these Restrictions in the Office of the County Recorder of Orange County, California, these Restrictions shall cease and terminate and be of no further force or effect as to Declarant and such property, effective as of the date of such recordation. 8.7 Notices. A:i notices, consents, requests, demands and other communications provided for herein shall be in Writing and shall be deemed to have been duly given if and when personally served or forty-eight (48) hours after being seta by United States certified or registered mail., return receipt requested, postage prepaid, to the other party at the following respective ad(tresses: DECLARANT_ THE IPVR4= COMPANY c/o Irvine Commercial Land Sales Company 530 Newport Center Drive P.O. Box I i Newport Beach, California 92658-9904 Attention: Mice President, Sales and Marketing with a copy eo; i THE IRVINE COMPANY c/o Irvine Ccmmercial Land Sales Company 550 Newport Center Drive P.O, Box i r y Newport Reath, California 92658-8904 Attention: Ceheral Counsel, Commercial Land Sates F - _ ,. - tf 1.'S,tPFrtSAf.NS.NtStlNarmber la, 1995 balintim 21 Nagm f fou. An N+ ,.n 1 it K]- 1 3 .c y GRANTEE: NEWPORT HARBOR ART MUSEUM 850 san Clemente Drive Newport Beach, CA 42660 Attention: Director or at such other address as Declarant or Grantee may designate to the other in writing in accordance with the provisions of this Section. 8.8 Governing Law. This Declaration shall be governed by and construed under the laws of the State of California.` In the event of any dispute hereunder, it is agreed that the sole_and exclusive venue shall be in a court of competent jurisdiction in Orange County, California, and Grantee and Declarant agree to submit to the jurisdiction of such court. 8.9 Severability. In the event that any portion of this Declaration shall become illegal, null or void or against public policy, for any reason, or shall be held by any court of cotrpetent jurisdiction to be illegal, null or void or against public policy, the remaining portions of this Declaration shall, not be affected thereby and shall remain in force and effect to the full extent permitted by law. 8,10 Captions.' the captions used herein are for convenience only and are not apart of this Declaration and do not :n any way limit or amplify the terms and provisions hereof. 8.11 Entire AIgreem_ent. _ 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 agreement% representations, negotiations and understanding; of the parties hereto, oral or written,'are hereby superseded and merged herein. The foregoing sentence shall in no way affect tiie validity of the Donation Agreement pursuant to which Grantee acquired the ?raperty or any instruments executed in connection therewith. 8.12 Gender and Number. In this Declaration (unless the context requires otherwise), the masculine, feminine and neiier genders and the singular and the plural include one another. 8.13 Time o= Essence_ Time is of the essence of each provision of this Declaration in which time is an element. 8.14 No Waiver by indenuritees. No failure or delay on the part of any Indemnitee to exercise any power, right or privilege tinder this Declaration shall impair any such power, right or privilege, or be construed to be a; waiver of any default or any acquiescence therein, nor shall any Single or partial exercise of such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. No provision of this Declaration may be changed, waived, discharged or terminated except by an instrument +.1 writing signed by the party, against whom enforcement of the change, waiver, discharge or termination is sought. 8.15 In est Amounts due hereunder from Declarant or Grantee to the oilier, if not paid when due, sliall bear interest at ten percent (10%) per annum from the date due until paid. Interest which is not paid shall annually ,be.added to the principal amount due and shall thereafter itself bear interest as such rate. ._- � tll.^3TFFT15CW5 NSC1N..anuee 10. 1Wf ry � 22 Iictul6m Nt-Tan Ilattgt An 14 u 5 t f IN WITNESS WHEREOF, dte undersigned have executed this Declaration as of the date first written above. "DECLARANT" "GRANTEE" THE IRVINE COMPANY, NEWPORT HARBOR ART MUSEUM, a Michig tporattori a California nonprofit pu6itc benefit corporation j By By: Richard G. Sitn Name gyij �`- Executive Vice Presidcrjt Title: _ A"If Jse AJ/ a By, .� BY, John C. Tsu Name:_S Vice President -Finance Title: Investment Properties Group N. 4L G l ' I 11.$nP MVLN5.t4St11l=ftter IQ. IM "ecfantiat ..- .- 23 K.W" num. A" Mu.mn i r i i ,�. .. • atm .- 0 t�� 1LI STATE OF CAT iFORNIA COWJTY OF ORANOE On November 22, 1995, before me, Cynthia M. Ptak, a Notary Public, personally. appeared Richard G. Sim, Executive 'Vice President and John C. Tsu, Vice President, personably known► to me (of pfoved to me on the basis of satisfactory evidence) to be the persons whose >�tatnes are subscribed to the within instrument and acknowledged to me that they executed the same m their authorized capacity and thatby their signature on the instrument the persons, or the eii tity upon behalf of which the persons, acted, executed the instrument. WITNESS my hand and official seal. _ _ r- `C`.�'� i - - CYNTHIA •, _ � " uor�PVBUC 011180 3 � aavvaecou�nrrY � � L .... _ _ t^.anmissiort Expires UeC. 9.1987 ; i a STATE OF CALIFORNIA, ) COUNTY OF _ )ss. On before me, app(ct�+t alb C>v tS� a iv Itary public in and for the said state, personally appeared [Innen name(s) and title(s)] personally known to me (or payed to me on the basis of satisfactory evidence) to be the persons; whose name(s) is/are subscribed to the'th within instrument and acknowledged to e that he/she/ibey eitect_ted the same in his/her/their authorized capacity(im), and that by his1her/their signature(s) on the instrument the person(s), or the entity upon lehalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ii !q A.eo� Signature: � t,,C_ � r -�Gt^ v Oi 105MI �e OSECOUNNN 9 My Commission Expires: t,. (tet T 1ggg MyComm Evke A&7.im STATE OF CALIFORNIA, ) COUNTY OF (J�Gc c Q } ss. _Q ` } On iG/21r 1 3 ; before me, tere- C•S a notary public in and for the said state, personally appeared &A a,. 641e1' Aa— v, [Insert name(s) and title(s)] I personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) islam subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(es), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and Official seal. �JN 6 Signature: J � ' C �3eF v QmVCCMM.EKpk aCow011 •SCAtffiM W RAN�6E_CXAfWj ty Commission Expires: � ig9%rEC t, tM i. 25� thclacarion Nmyat nutnr An !Museum 0 LEGAL DESCRIPTION OF BENEFITTED PROPERTY Parcel A (Harbor View Shopping Center): Parcels 2, 3 and 4, in the City of Newport Beach, County of Orange, State of California, as shown on tr a ap filed in Book 35 Page 1 of Parcel Maps, in the Office of the County Recorder of said County. A non-exclusive easement for ingrc;s and egress purposes over the northwesterly 10.00 feet of Parcel No. 1, in the City of Newport Beach, County of Orange, State of California, as per map filed in Book 35, Page 1 of Parcel Maps, records of said Orange County. (Harbor View Shopping Center,) Palnel B (Fashion island) Parcel B-1: Parcels I through 9, inclusive, in the City of Newport Beach, County of Orange, Stale of California, as shown on Parcel, Map No. 86-399 as per Map Bled in Book 221, pages 30 through 36, inclusive, of Parcel Maps, in the Office of the County Recorder of said County. Parcel S 2: Parcels 13 through 17, inclusive, and Lots Q, R, S, U. R -I, R-2 and R-3 of Tract No. 6015, in the City of Newport Beach, County of Orange, State of California, gas per Map recorded in Book 239, pages 28 through 41, inclusive, of Miscellaneous Maps, in the Office okAe County Recorder of said County. Parcel B-3- Parcel - :Parcel 1, in the City of Newport Beach, County of Orange, State of California, as showdon a Parcel Map filed in Book til, pages 2 and 3, of Parcel Maps, in the Office of the County Recorder of said County. Parcel Bim: Parcel 1, in the City of Newport Beach, County of Orange, State ;of California, as shown on a Parcel Map filed in Book 75, page 48, of Parcel Maps, in the Office of the County Recorder of said County. EXHIBIT A to Declaration of Special Restrictions Page t of 6 � � i ?sarrrnsNws.Mscva,�,,,w w. Ivaa I1cI.n Na IpZ ItUb. An 9,w S Parcel 13-5: Parcel 4 of Parcel Maps, as shcwn on a Map filed in Book 67, pages 2 and 3, of Parcel and Lot W of Tract No. 6015, at per Map recorded in Book 239, pages 26 through 41, izi.M!vap of Miscellaneous Maps, all in the City of Newport Beach, County of Orange, State of California in the Office of the County Recorder of said County, lying within the land described as Parcel f 1 and 2 of that certain Lot Line .adjustment N.B.L.L.A. 87-3, recorded November 13, 1987, a� Instrument No. 87-640346, in the, Office of tate County Recorder of said County. Parcel C (Pelican Hill Golf Courses) Parcel C-1: Parcel 1 of that certain Lot Line Adjustment No. LL -94-030, recorded April 28, 199$ as Instrument No. 95-0140640, Official Records of said County. Parcel 9-2: Lots 2, 5, 6 and 7 of Tm t No_ 14131, in the County of Orange, State of California, as shown on a Map filed ir_ 'Book 662, Pages 42 to 46, inclusive of Miscellaneous Maps, Rccords of Orange County, California. Parcel - Parcel 4 of that certain Lot Line Adjustment No. 94-008 recorded April 28, 1995 as Instrument No. 95-018Q@4t Official Records of said County. Parcel C-5: Parcel 1 of that certain Lok Line Adjustment LL 92-017, recorded on May 22, 1992 as Instrument No. 92-34356S'of Official Records of said County. Parcel C-6: Easements over those portions of Lot 59 and that portion of Lot A of Traci 14063, per Map filed in Book 670, Pages 23 through 29 inclusive of Miscellaneous Maps, Records of Orange County, Calif:)inia, as set forth in Article 11, Subparagraph 2.3(c) entitled "Access Over Common Arca for Golf Course" in that certain declaration entitled Declaration of Special Covenants, Conditions, Restrictions and Establishment of Easements for Golf Come Property and Pelican Point, recorded May 23, 1991 as Instrument No. 91-254012, Official Records. r' EXHIBIT A to Declaration of Special Restrictions Page 2 of 6 In.7tthPF'MSPI,NS.MSt�ttm'm�6cr 1Q,1945 ocaarwo ` i A .. +CY r i Parcel F: A forty (40) foot wide easement for access tunnel purposes under and through a po ion of that parcel of land described within the "Irrevocable Offer to Convey Easement Pelican Hill Road Right -of -Way" (now known as "Newport Coast Drive") recorded Decett'� er 20, 1988 as tnstrumert'No. 88-663375, Official Records to the Unincorporated TerriSoty of the County of Orange, State of California, and shown on the map of Tract No. I4131, Filed in Book 662, Pages 42 through 46, inclusive, of Miscellaneous Maps, in the office of the County Recorder of said Coway, said easement being more particularly descried as follows: Commencing on the northwesterly terminus of that certain course describe as "North 55" 53' 00" west, 457.71", to which a radial line bears north 34' 43' 41' west and being the intersection of the northeasterly line of Lot 4 of said tract with the southerly line of said irrevocable offer, said southerly line being a curve concave south=riy, having a radius of 1129.50 feet; thence, westerly, 97.70 feet along said curve, through a central angle of 04' 57' 21" to the True Point of Beginning, a radial line through said point bears north 39' 41' 02" west; thence continuing along said curve 44.50 feet through a central angle of 02' 15' 26", to which a radial line bears north 41' 56' 28" west; thence, crossing said Irrevocable offer, north 14' 56' 28" west; thence crossing said irrevocable offer, north 140 So' 0Q, west, 151.77 feet to the northerly lime of said irrevocable offer and a point in a curve concave southerly having a radius of. 1266.50 feet, a radial line through said point bears north 38' 48'40" west; thence, easterly, 43.45 feet, along said curio, through a central angle of 01' 57' 57", to which a radial line bears north 36' 50' 43" west; thence, crossing said irrevocable offer'; south 14' 50' 43" west; thence, crossing said irrevocable offer, south 14' 50' 00" east, 149.26 feet to the Point of Beginning. A The herein described easement is centered upon a cylinder twenty-five (25) feet in diameter, The finishel floor elevation at the northerly end is 129.50 feet M.S.L.; the finished floor elevatior. at the southerly end is 120.10 feet M.S.L. Passel C-7; A fifty (50) foot wide asemetn for access tunnel proposes tinder and through a portion of that parcel of land being a 100 foot wide right of way known as "Pacific Coast Highway" in the unincorporated territory of Orange County, as shown on the Map of Tract No. 14131, fried in Book 662, Pages 42 through 46, inclusive, of Miscellaneous Maps, in the Office of the County Recorder of said County, said easement being more particularly described Ls' follows; ,EXHIBIT A to Declaration of Special Restrictions j Page 3 of 6 --.-.-tn:STY(Ttsrt.NS ptsGVimunAet tQ. 1945 o"cbrnlm N_ P. Wd., Art hf imp 1 -:A f 4 wr F � t Commencing on the northwesterly terminus of that certain course 4escribed as �. "(norh 49' 29' 55" west, 5241.12')" and being the most westerly c rne. of Lot 3 of said tract and being in the easterly line of said Pacific Coas t Highway; thence; along said easterly line of Pacific Coast Highway, south 4P° 29' 55" east, 245.89 feet to the True Point of Beginning; thence, continuing with said easterly Iine, south 49' 29' 55" east, 50.00 feet; thence, crossing Said Pacific Coast Highway, south 40' 30' 05" west, 100.00 feet to a point in t6- westerly line of said Pacific Coast Highway; thence, along said westerly Finenorth 49' 29' 55" west, 50.00 feet; thence, crossing said Pacific Coast Highwai, north 40' 30' 05" east, 100.00 feet to the True Point of Beginning. The herein described easement is centered upon a cylinder twenty-five (25) feet in diameter. The finished floor elevation at the northeasterly end is 113.10 feet M.S.L.a the finished floor elevation at the southwesterly end is 112.60 feet M.S.L: Parcet C -8 - Parcel i of that certain Lot Line Adjustment No. LL94-031, recorded April 23, 1995 as Instrument No. 95-0180642, Official Records of said County, Parcel C-9: Those certain Easemenis Rights over Lots 40, 41 and 42 of Tract No. 13703, as set forth in Article 2 of that certain Declaration of Reciprocal Easements by The Irvine Company recorded March 4, 1994 as Instrument No. 94-0157193 of Official Records. Parcel C-10 Easements over Lots A, B and K of Tract 14063, as per Map filed in Book 670, Pages 23 through 29 inclusive of Miscellaneous Maps, Records of Orange County, California, for pedestrian, golf cart a=d other vehicular means for maintenance purposes, use and enjoyment of the adjacem golf course; as contained in that certain Declaration of Reciprocal Easements :)y The Irvine Company recorded March 4, 1994 as Instrument No_ 94-0157793, Official Records. Parcel C-11: A non-exclusive easemitt and right of vehicular and pedestrian ingress and egress over that portion of Lot I of Tract No. 13859, in the unincorporated territory of the County of Grange, State of California, as shown on the Map tiled in Book 671, Pages 12 and 13 of Miscellaneous Maps, in the Office of the County Recorder of said County, more particularly described as follows: 111.^�71PPFlSP[NSdfSQN emu,¢ 10, 7995 yr EXHIBIT A to Declaration of Special Restrictions Page 4 of 6 N yw[ f1+id.Q AY Ftuxpn i i i KY Beginning at the intersection of the northwesterly line of said Lot I south ,§terly tine of Pelican Hill Road South as described In an Irrevocable Dedication to the County of Orange, Recorded October 4, 1990 as Instrument 530548 of Official Records of said County; said intersection also being the beg a curve concave northeasterly, having a radius of 5140.00 feet, a radial line thrc beginning bears south 33' 46' 57" west; Lite r of 90- g of sa d thence, traversing tae interior of said Lot 1, the following three (3) courses: I (1) Southeasterly, 89.01 feet along said curve, through a central angle of 00'* 59' 32" to a non -tangent litre and to which a radial line bears south 32" 47' 25 we, t; (2) South 276 12' 19" west, 201.25 feet to the beginning of a curve concave northweszedy, having a radius of 84.00 feet; mid (3) Southwesterly, 103.00 feet along said curve, through a central angle of 70' 15' 21" to said -iorthwesterly line of Lot 1 and to which a radial litre bears south 07. ° 27'40" west- thence, along said northwesterly line of Lot 1, north 201 44' 00" east, 291.0 feet to the Paint of Beginning. Parcel D (500 and 550 Newport Center Drive) Beginning at the easterly terminus of that certain course in the northerly right of way line o f San Nicolas Drive shown as south 80 degrees, 14 minutes, 38 seconds east 91.45 feet on Map of Tract 6015 filed '.n Book 239, pages 28 through 4I of Miscellaneous Maps, in the Office of said County Recorder; thence along the right of way lines of said San Nicolas Drive, Newport Center Drive East and Santa Rosa Drive as shown on said Map. The following courses and distances, north 80 degrees, 14 minutes, 38 seconds west 91.45 feet to the beginning of a curve concave northeasterly having a radius of 25.00 feet, northwesterly 38.16 feet along said :urve through an angle of 87 degrees, 26 minutes, 49 seconds'to the beginning of a reverse curve concay. westerly having a 425 radius of 1670.00 feet; northerly 472.13 feet along said curve through an angle of 16 degrees, I I minutes. 54 seconds to the beginning of a reverse curve concave southeasterly having a radius of 25.00 feet; northeasterly 38.16 feet along said curve through an angle of 87 degrees, 26 minutes, 49 seconds, mirth 78 degrees,. 27 minutes, 06 seconds 69.97 feet to the beginning of a curve concave northwesterly having a radius of 825.50 feel, northeasterly 195.27 feet along said curve through an angle of 13 degrees, 33 minutes, I 1 seconds to a point of a non - tangent curve concave southwesterly having a radius of 25.00 feet, a radial to said point bears north 35 degrees, 38 minutes, 46 seconds east- thence easterly 4.81 feet along said curve through an angle of 11 degrees, 01 minutes, 42 seconds to raze beginning of a reverse curve concave northeasterly having a radius of 161.00 feet, thence southeasterly 91.20 feet along said curve through an angle of 32 degrees, 27 minutes, 16 seconds to the beginning of a reverse curve concave southeasterly having a radius of 25.00 feet; thence southerly 32.67 feet along said urve through an angle of 74'degrees, 53 minutes, 02 seconds; thence south 0 degrees, 53 minutes, 46 seconds east 25.50 feet io the beginning of a reverse EXHIBIT A to'Deelaration of Special Restrictions Page 5of6 111.:r!1CtllSPLW.MSCSiiam�bcr f0, I945 t tf"�tara�i�, Ncwpm Mf�.. An'hl°scvn Curve concave nor'..westeriy brAng a radius of 2.00 feet; thence southwesterly 3.14 feet alongSaid curve through an angle of 90 degrees, 00 rimutes, 00 seconds to the beginning of a reverse curvi concave southeasterly having a radius of 2.00 feet; thence southwesterly 3.14 feet along said Curve trough an angle of 90 degrees, 00 minutes, 00 seconds; thence south 0 degtees, 53 minutes, 46 seconds east 179.75 feet to the beginning of a curve concave northwesterly having a radius of 10.00 feet; thence sou+westerly 6.59 feet along said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 36 degrees, 51 minutes, 54 seconds west 9.49 feet to the beginning of a curve concave southeasterly having a radius of 10.00 feet; thence southerly 6.59 feet along said curve through an angle of 37 degrees, 45 minutes, 40 seconds, thence south 0 degrees, 53 minutes, 46 seconds east 31.50, feet to Point A" hereinafter referred to; thence continuing south 0 degrees, 53 minutes, 46 seconds ease 31.50 to the beginning of a curve concave northeasterly having a radius of 10.00 feet; thence southeasterly.6.59 feet along said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 38 degrees, 39 minutes, 26 seconds east 9.49 feet to the beginning of a curve concave southwesterly having a'radius of " 10.00 feet; thence southerly 6.59 feet along said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 0 degrees, 53 minutes, 46 seconds east 212.75 feet to the beginning of a zurve concave northwesterly having a radius of 25.00 feet; thence southwesterly 24.40 feet along said curve through an angle of 55 degrees, 55 minutes, 53 seconds to the beginning of a reverse concave southeasterly having a radius of ;47.00 feet; thence southwesterly 66.40 feet along said curve through an angle of 25 degrees, 52 minutes, 43 seconds to the beginning of a reverse curve concave northwesterly having a radius of 25.00 feet; thence southwesterly 9.78 feet along said curve through an angle of 22 degrees, 24 minutes, 25 seconds o a point on a non -tangent curve concave southerly having a.rad-us of 950.50 feet and northerly right of way line of said San Nicolas Drive, a radial to said point bears north 22 degrees, 12 minutes, 47 seconds east; thence westerly 206.65 feet along said curve througti.an angle of 12 degrees, 27 minutes, 25 sc onds to the point of beginning. Parcel E (610 Newport Center Drive) That portion of Lot 22 of Tract No. 6015, in the City of Newport Reach, County of Orange, Stite of California, as shown on a Map tc�orded in Book 239, pages 28 through 41, inclusive, of Miscellaneous Maps, in the Office of the County Recorder of said County; lying southeasterly of the boundary of a Map filed in Book 25, page 14 of Parcel Maps, in the Office of the County Recorder of said County. Parcel F (690 Newport Center Or Parcels 2 and 3 of Parcel Map No. 83-715, in the City of Newport beach, County of Orange, Sttte of California, as shown on a Map f led in Book 196, pages 13 through 16, inclusive, of Parcel Maps, iri the Office of the County Recorder cf said County. Parcel G Au other property owned by Declaram in the County of Orange, California, as of the date of recordation of this instrument. r„n DeCiaram Shall have the fight fWia fine to time and at any time, by duty recorded amendment tt this instrument executed only by 1)ectygirant, to unilaterally provide funhec descriptions of all or portiois: of the Benefitted Propcny described above. I;XHI i"f A to Declaration of Special Restrictions Page 6 of 6 :F K}� o —Im Nn p,— fhzbo[ An Idaxicn REQUIREMENTS FOR SPECIFIC FACILITIES Descriolon of Specific Facilities: A first class art museum with related landscaping and hardscaping improvements. Maximum No. offluilamps: lw Maximum Qross Floor Area 32,500 square feet** Permitted Use An art museum and ancillary facilifie�s in Support thereof which may include commercial and retail activities that cater to and serve primarily museum visitors (such as an auditorium, gift shop and a restaurant). Any connecting structure between the building located on the Fee Property and any improvemenus on the adjacent property currently owned by Grantee Will not be deemed to be a separate building for the purpose of determining the number of buildings on the Fee Property. By setting forth any required maximum gross floor area above, Declarant does not thereby represent or warrant that Grantee shall be able to develop the Fee Property for such density. EXHIBIT 9 to Declaration of Special Restrictions -0- 1 LEGAL DESCRIPTION OF FEE PROPERTY a J i WHAT CERTAIN REAL PROPERTY IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE. CITY OF NEWP02T BEACH, DESCRIBED AS FOLLOWS: PARCEL 2 AS SHOWN ON EXHIBIT B OF LOT LINE ADJUSTMENT 95-3 RECORDED OCTOBER 31, 1995, AS INSTRUMENT NO. 19950483821 OF OFFICIAL RECORDS OF SAID COUNTY. • i -r, �6 EXHIBIT C to Declaratio4 of Special Restrictions iu.?iMFTi3P1N3.MttlNovanber to, 1963 - <txchlx�m 1q, 1141W An Mum= I Rr 1 THE IRVINE COMPANY cto Irvine Land Management 550 Newport Center Drive, 7th Roar Newport Beach, CA 92660 Attenrion; Lee Milligan SPACE ARONMTHIS GLNE FOR RECORDERS LSE SUBORDINATION AGREEMENT NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS AND INTERESTS AND YOUR SECURITY INTEREST IN THE PROPERTY BECOWNG SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTM OR LATER SECURITY INSTRUMENT. I. PARTIES AND DATE. This Subordination Agreement {"Agreement") is trade this day of 19_ by NEWPORT HARBOR ART. MUSEUM, a California nonprofit public benefit corp ort ClKner" ), owner of the "Property" (as defined below) and THE IRVINE COMPANY, a Michigan corporation {"jrt itte"), declarant unde_ the Declaration (defined below). U. ACKNOWLEDGEMENTS. Owner has executed a Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Other Remedies (tf.e "Declaration") dated 19 and recorded on as Instnnnent No. in the Official Records of Orange County, . California as an encumbrance on the title of the real property (the "Property") in the City of Newport Beach, County of Orange. State of Cal;forrtla described as follows: Parcel A: All of that certain real property more fully described on EXHIBIT A attached hereto grid by this reference incorporated herein (the "Fee Property"). Parcel B. A permanent nc-nexcluOe easement appurtenant to the Fee Property for access, ingress and egress by vehicles and pedestrians to and from the Fee Property and the adjoining pt;b�io street over certain real property, all as more fully described in that certain Declaration of Easements recorded on October 31, 1995, as I EXHIBIT D to Ueciaration of Special Restrictions - t u ±;nrcnasei zas.w,.uaex� ss. tws 1 1 nnkraiijrt Hrwpn ,Ixrlx An M— i� i i * , Instrument No. 19950484848 in the Official Records of Orange'Cl— (the "Dedaration of Easements"). Parcel Q A permanent nonexclusive easement appurtenant to the Fee PrapeM, for surface drainage from the Fee Property over certain real property, all as; mere fully described in the Declaration of Easements. Owner has executed, or is about to execute, certain loan documents ("Loan Doctumatts') dated , with or in favor of ("Lender") to obtain and eyid—' e a I— (the "Loan") from Lender in the * unt of $ The Loan Documents have ail been delivered to Irvine and include, without limitation, a Deed of Trust (the "Deed of Trust") to be recorded concurrently with this Agreement as security for the; obligations evidenced by the Loan Documents. Lender is incurring its obligations in connection with the Loan in a. good faith and for value purseant to an agreement with Owner, on which Irvine is relying and which is memorialized in the Loan Doounterus, that the proceeds of the Loan will be expended solely for fi-iancing or refinancing of construction of certain improvements on the Property, the plans and specifications for which have been, or will, prior to the commencement of construction, be approved by Irvine, all in accordance with the prowsiors of the Loan Docurtients, and for no other purpose unless apprcved by Irvine in writing in its sole discretion. i A condition precedent to Lender's agreement to snake the Loan is that the Deed of first shall be and remain at all rimes a li=t of charge upon the Property prior and superior to certain enfor: ement rights and remedies of Irvine raider the Declaration. Irvine and Owner agreethat it is to their mutual benefit that Lender make the Loan to Owner. This Agreement is made in co.-isideration of the mutual benefits to Irvine and OwneK,resulti ' frim the and Owner. Loan and for other valuable consideration, the receipt and sufficiencywhich is acknowledged b} Irvine III. SUBORDINATION. A. SpRerioriay of Deed of 'frust. The Deed of Trust and any renewals or extensions thereof shall be and remain at al' times a lien or charge on the Property prior and superior to Declarant's right of first refusal contained in Article 4 of the Declaration, the mortgage lien contained in Section S. I(d) of the Declaration, and the opf ion to repurchase contained in Section 5.3 of the Declaration (collectively, the "Enforeetnent Rights,). provided, however, that (1) the Declaration (including the Enforcement Rights) shall be binding upon and effective against any subsequent owner or other occupant of the Property or any 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 such subsequent owner shall have the cure rights as provided in said Section S.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 brine's Enforcement Rights, all of which shall survive such proceeding and shall be binding upon any subsequent owner acquiring tide from Lender as stated above. _.. _. = .: s; ?rnrratsri.ru aisro�meer xs, tws EXHIBIT D to Declaration of Special Restrictions 2 L Urar+um B. Ownc.'s Consent. Owner agrees that Irvine shall be entitled to advance any sums Irvine in 1"i. s:)Ie discretion deems necessary to protect and preserve the security for its rights and interest under :he Declaration (including but not limited to any property taxes or assessments, insurance premiums,ai'trounts secured by Lender's Deed of Trust, or encumbrances or liens or other charges on arty portioq of he Property which appear to be prio_ to Irvine's rights and interest under the Declaration), all of which advances (together with interest at the maximum rate permitted by law) shall be secured by the tntirtgtige lien contained in Section 5.2(d) of the Declaration, and shall be subject to the power of sale proyisiotu in the Declaration if Owner fails to reimburse Irvine for such advances within ten (10) days after demand from Irvine, and all such advances :plus interest thereon at the maximum rate then permitted by law) shall reduce the amount of any repurchase price to be paid by Irvine under the terms of the option to repurchase contained in the Declaration. 1V. MISCELLANEQUS. A. Entire Agreement This Agreement shall be the whole and only agreement between Irvine and Owner with regard to the subordination of Irvine's enforcement rights and remedies under the Declaration to the lien or charge of the Deed of Trust. B_ Attorneys' Fees. The prevailing party in any litigation respecting this Agreement shall be entified to reimbursement of attorneys' fees and costs, whether or not taxable, incurred in the litigation. "IRVINE" F °otivNElz" THE IRVINE COMPANY, NEWPORT HARBOR ART MUSEUM, a Michigan corporation a California nonprofit public benefit corporation By: gy; Richard G. Sim Name: Executive Vice Presi¢cat Title: By: By. John C. Tsu Name: Vice President-Finan;e N r Title: Investment Properties Group i EXHIBIT D to Declaration of Special Restrictions —. tn.23'✓1>•FI,ISPINS.Msmlli- 25.1995 f D,�1-i. riMrt)fl }{ifblA A[L.nYfttth 1 I' .ci. I •:'Y ' t 1 . STATE OF CALIFORNIA, ) ss. COUNTY OF ) On , before me. a it tart public in and fnr the said state, personally appeared [Insert name(s) and title(s)] ' Personally known to me (or p-oved to me on the basis of satisfactory evidence) to be the persons) whose names) is/are subscribed to [he within instrument and acknowledged to me that he/she/they execjted the same in his/herltheir authorized capacity(ies), and that by his/her/their signatures) on the instrut:tent the person(s), or the entity upon 3ehalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. �I Signature: i My Commission Expires: I STATE OF CALIFORNIA, } COUNTY OF ) On , before me, a notary public in and for the said state, personally appeared (Insert name(sj and title(s)] personally known to me (or proved to me on the basis of satisfactory'evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. �y i Signature: My Commission Expires: (Seal) EXHIBIT D to Declaration of Special Restrictions L112S"FktNPLN5.M90Qc1 h, ?5.,9" . 4rM.— - _- -. Ncupw, naH'nr An. }fuscu¢n 'r «,. STATE OF CALIFORNIA, COUNTY OF On before me, a noary public in and for the said state, personally appeared [insert name(s) and title(s)) personally Known to me (or proved to me on the basis of satisfactory evidence) to be the pe rs6n(s),wliose e name(s) is/aresubscribed to th: within instrument and acknowledged to me that It Jshe/they executed the same in his/her/their authorized capacity(ies), and that by his/herhheir signature(s) on the instiument the ii person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seas. Signature: My Commission Expires., STATE OF CALIFORNIA, COUNTY OF, On 'before me, a notary public in and for the said state, persottally appeared [Insert name(s) and title(s)) personally known to me (or proved to me: on the basis oftsatisfactory evidence) to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that helshelthey executed the same in his/her/their authorized capacity(ies), and that by bis/heritheir, signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature: My Commission Expires: (Seal) EXHIBIT D o Declaration of Special Restrictions ft�] LEGAL DESCRIPTION OF FEE PROPERTY i f THAT CERTAIN REAL PROPERTY IN THE STATE OF CALIFORNIA, COUNT* OF ORANGE, CITY OF NEWPORT BEACH, DESCRIBED AS FOLLOWS: PARCEL 2 AS SH6t N ON EXHIBIT B OF LOT LINE ADJUSTMENT 45-3 RECORDED OCTOBER 31, 1945, AS INSTRUMENT NO. 14450483821 OF OFFICIAL RECORDS OF SAID COUNTY. e, LEGAL DI 1, Bayport: PARCEL A: i PARCEL t tN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED 'IN BOOK 35, PAGE I'tF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. PARCEL B EASEMENTS FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS, AND FOR UTILITY FACILITIES, OVER, ACROSS AND THROUGH THAT CERTAIN PROPERTY LOCATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS THE SOUTHEASTERLY 10.00 FEET OF PARCEL 2. IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 35, PAGE I OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER; OF SAID COUNTY, AS SET FORTH IN THAT CERTAIN DECLARATION OF ACCESS EASEMENTS DATED AS OF JUNE 11, 1993, AND RECORDED JUNE 15, 1993, AS INSTRUMENT NO. 93-0401502 OFFICIAL RECORDS 2. Bayview: PARCEL 1 IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A PARCEL MAP FILED IN BOOK 35, PAGE 2 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. i 3. Baywood; PARCEL§ I AND 2 IN THE CITY OF NPWPORT MACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON PARCEL MAI' NO. 84-705 FILED IN BOOK 189, PACES 6 THROUGH 16 INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. r EXHIBIT E to Declaration of Special Restrictions _. _—_. .iti.iSTPt-Td54LYS.MSC�Iicwtltr 33,1995 s)ccdntim N-Tm Rae" Aa M— i F (w . tY EXHIBIT E SCHEDULE OF DEVELOPMENT IMPACT FEES 1. Park Dedication Fee: $26,125 per new residential unit as established by City Council Resolution No. 2007-30. 2. Fair Share Traffic Fee: $203.29/trip as specified in the June 21, 2016 Traffic Engineer Memorandum to the Planning Department. STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2016-24 was duly introduced on the 29th day of November, 2016 at a special meeting, and adopted by the City Council at a regular meeting duly held on the 13th day of December, 2016, and that the same was so passed and adopted by the following vote, to wit: AYES: Council Member Peotter, Council Member Duffield, Council Member Selich, Mayor Pro Tem Muldoon, Mayor Dixon NAYS: Council Member Petros ABSTAIN: Council Member Curry IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14th day of December, 2016. STATE OF CALIFORNIA } COUNTY OF ORANGE } CITY OF NEWPORT BEACH } CALi F01;60' r _ J Leilani I. Brown, MMC City Clerk City of Newport Beach, California (Seal) CERTIFICATE OF PUBLICATION ss. I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2016-24 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation on the following dates: -20+6— Introduced Ordinance: December 3, 2016 Adopted Ordinance: December 17, 2016 ��a In witness whereof, I have hereunto subscribed my name this day of qtr__-._,. w, `0 N C 0 Leilani I. Brown, MMC City Clerk City of Newport Beach, California (Seal) t