HomeMy WebLinkAboutC-9844-1 - Concession Agreement (for Use of the Concession Facility at the Central Library Located at 1000 Avocado Avenue)CONCESSION AGREEMENT
by and between
CITY OF NEWPORT BEACH,
a California municipal corporation and charter city
"City"
and
Kit at the Library, Inc.,
a California stock corporation
"Concessionaire"
Dated Tun e 1\ .2025
CONCESSION AGREEMENT
THIS CONCESSION AGREEMENT ("Agreement") is made and entered into as of
the day of Uu n e , 2025 ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), and KIT
AT THE LIBRARY, INC., a California stock corporation ("Concessionaire"). City and
Concessionaire are at times individually referred to as "Party" and collectively as "Parties"
herein.
RECITALS
A. City is the owner of the Central Library located at 1000 Avocado Avenue,
Newport Beach, California, Assessor's Parcel Number 988-801-27 ("Property"). The
Property includes a seven hundred fifty-seven (757) square foot concession facility as
depicted in Exhibit "A," which is attached hereto and incorporated herein by this reference
("Premises").
B. In October 2023, City conducted an informal solicitation seeking proposals
for operation of a concession at the Property. After reviewing the proposals, City selected
Concessionaire to operate a coffee and tea shop ("Concession") at the Premises.
C. Although no appraisal was conducted, Percentage Rent, as defined herein,
is comparable to current market rates. While it is anticipated the Concession will generate
revenue to the City equivalent to the open market value of the highest and best use of
the Premises and the highest financial return, pursuant to City Council Policy F-7, Base
Rent is not being charged and less than open market rent may be received by the City
because the property provides an essential or unique service to the community that may
not otherwise be provided were full market value of the property be required.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt of which is hereby acknowledged,
the Parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 General Definitions. As used in this Agreement, the following words and
phrases shall have the following meanings:
1.1.1 Alteration — any improvements,
modifications of the Premises made by
limited to fixtures and signage,
Improvements.
additions, alterations, changes, or
Concessionaire including, but not
and including Concessionaire
Concession Agreement — KIT at the Library, Inc. Page 2
1.1.2 Authorized City Representative - the City Manager or his/her
designee.
1.1.3 Common Area -the areas within the Property which are available for
non-exclusive use by City, Concessionaire, the public, and other tenants
and/or users.
1.1.4 Delivery Date - the date the City provides Concessionaire access to
the space prior to Rent Commencement, in order for Concessionaire to
prepare space for operation.
1.1.5 Expiration - the lapse of the time specified as the Term of this
Agreement, including any extension of the Term resulting from the exercise
of an option to extend.
1.1.6 Good Condition -neat and broom -clean, and is equivalent to similar
phrases referring to physical adequacy in appearance and for use.
1.1.7 Law - any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order, or other requirement of any
municipal, county, state, federal, or other government agency or authority
having jurisdiction over the parties hereto or the Premises.
1.1.8 Maintenance or Maintain - repairs, replacement, maintenance,
repainting, and cleaning.
1.1.9 Person -one (1) or more natural persons, or legal entities, including,
without limitation, partnerships, corporations, trusts, estates, associations,
or a combination of natural persons and legal entities.
1.1.10 Provision - any term, covenant, condition, or clause in this
Agreement that defines, establishes, or limits the performance required or
permitted by either party.
1.1.11 Rent - includes Base Rent, Percentage Rent, taxes, and other similar
charges payable by Concessionaire under the provisions of this Agreement.
1.1.12 Rent Commencement - date Concessionaire begins paying Rent,
commencing twelve (12) months from Agreement execution. For purposes
of Rent Commencement, Concessionaire's catering activities that occur
prior to the first day of operation from the Premises shall be included in the
calculation and payment of Percentage Rent (this provision is intended to
allow Concessionaire to cater events prior to conducting operations from
the Premises).
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1.1.13 Successor - assignee, transferee, personal representative, heir, or
other Person succeeding lawfully, and pursuant to the provisions of this
Agreement, to the rights or obligations of either Party.
1.1.14 Termination - the termination of this Agreement, for any reason, prior
to Expiration.
1.1.15 Other Definitions. - The following additional terms are defined in the
following sections of this Agreement:
(1)
Base Rent
§4.2
(2)
Claim or Claims
§11.1
(3)
Concession
Recital B
(4)
Concessionaire Improvements
§9.1
(5)
Gross Sales
§4.6
(6)
Hazardous Materials
§17
(7)
Indemnified Parties
§11.1
(8)
Percentage Rent
§4.3
(9)
Property
Recital A
(10)
Premises
Recital A
(11)
Rent
§4
(12)
Term
§3
2. PREMISES
City finds it to be in the public interest and consistent with public facility uses to
grant an exclusive right to operate a concession at the Premises. Therefore, pursuant to
the terms and conditions set forth herein, City hereby grants to Concessionaire the
exclusive right, privilege and concession to conduct a business at the Premises as
described in Section 6 of this Agreement. Concessionaire acknowledges that City has
delivered the Premises in an "as -is" condition and accepts the Premises in such condition.
Concessionaire agrees that City has made no representations or warranties with respect
to the condition or suitability of the Premises or any construction or improvements except
as specifically set forth in this Agreement. Concessionaire acknowledges that City, or
unrelated third parties occupying the Premises prior to Concessionaire, may have
constructed improvements and installed fixtures, furniture, and equipment on the
Premises, and Concessionaire agrees it is relying solely on its own inspections and
Concession Agreement — KIT at the Library, Inc. Page 4
investigations regarding the condition of the Premises, including fixtures, furniture, and
equipment, the surrounding area and other matters related thereto.
3. TERM
3.1 Initial Term. The Term of this Agreement shall be five (5) consecutive years
from the Effective Date (the "Initial Term"), unless extended as provided in Section
3.2 below, or terminated in accordance with the other provisions of this
Agreement.
3.2 Option Term. Provided Concessionaire is not then in default beyond
applicable notice and cure periods, upon Concessionaire's written notice, and upon
written approval of City, Concessionaire may extend the Term of this Agreement for two
(2) additional successive terms of five (5) years each ("Option Term" or "Option Terms"),
on the same terms and conditions as contained in this Agreement. Concessionaire shall
give City its written notice of intention to extend the Term at least six (6) months prior to
expiration of the current Term.
3.3 Terms of Agreement. The "Term" is defined as the Initial Term and, if
exercised, any Option Terms.
3.4 Hold Over. Should Concessionaire, with City's consent, hold over and
continue in possession of the Premises after the Initial Term or any Option Term,
Concessionaire's continued occupancy of the Premises shall be considered a month -to -
month tenancy subject to all the terms and conditions of this Agreement, except the
provisions of Sections 3.1 and 3.2.
4. RENT
4.1 General. Subject to Section 4.2, Concessionaire shall only pay Percentage
Rent. Concessionaire's payment of Percentage Rent to City shall commence on the
earlier of: (i) twelve (12) months from the Effective Date of this Agreement, or (ii) the first
day of operation of the concession on the Premises, subject to the rent abatement
provisions outlined in Section 13.
4.2 Base Rent. Base Rent shall only be paid by Concessionaire in the event
that Concessionaire has not completed the Concessionaire Improvements (as defined in
Section 9) within twelve (12) months from the Effective Date of this Agreement, at which
point Base Rent shall be established at Five Hundred Dollars and 001100 ($500.00) per
month. Base Rent shall be paid, in advance, on the first day of each month. Base Rent
for any partial month shall be prorated in accordance with the actual number of days in
that month and shall be due on the first day of that month that falls within the Term.
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4.3 Percentage Rent.
4.3.1 Payment. "Percentage Rent" shall be determined each calendar
month and shall be calculated by multiplying the percentage of Gross Sales, as indicated
by the table below, made in, upon, or from the Premises and/or otherwise attributable to
catering from the Premises for the calendar year. Gross Sales is defined in Section 4.6.
Payment of Percentage Rent is due no later than twenty-five (25) days after the end of
the month.
Percentage Rent of Gross Sales from Premises:
All Years, including Option Terms:
Gross Revenues of $0 to $300,000 — 5%
Gross Revenues of $300,001 or above— 6%
4.3.2 Accounting and Payment. Within twenty-five (25) calendar days after
the end of each calendar month for the term hereof, as may be extended as provided
herein, commencing with the twenty-fifth (25th) day of the month following the Rent
Commencement Date, and ending with the twenty-fifth (25th) day of the month next
succeeding the last month of the term, as may be extended as provided herein,
Concessionaire shall furnish to City a statement in writing, certified by Concessionaire to
be correct, showing the total Gross Sales made in, upon, or from and/or otherwise
attributable to the Premises or any catering authorized under Section 6.6 during the
preceding calendar month (or fractional month at the beginning of the term if the Rent
Commencement Date is other than the first day of a month). The Percentage Rent
payment to City shall be due and payable the following month (for example, the
Percentage Rent statement for the month of January is due on February 25th, and the
Percentage Rent payment for the month of January is due on March 1 st).
4.4 Revenue from Premises Use in Film, Television, and/or Advertising.
Concessionaire may allow the Premises to be used for film, television production,
advertising production, or other media vehicle only upon written approval from City and
in compliance with the Newport Beach Municipal Code. One-half (1/2) of all monetary
revenue received by Concessionaire as compensation or other payment for the use of
the Premises in a film, television production, advertising production, or other media
vehicle shall be paid to City no later than thirty (30) days after Concessionaire receives
this compensation or other payment.
4.5 Payment Location. Rent shall be payable at the office of City's Revenue
Division at 100 Civic Center Drive, Newport Beach, California, or at such other place or
places as City may from time to time designate by written notice delivered to
Concessionaire; or by electronic delivery if mutually agreed upon by City and
Concessionaire at www.newportbeachca.gov. Concessionaire assumes all risk of loss
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and responsibility for late charges and delinquency rates if Rent is not timely received by
City regardless of the method of transmittal.
4.6 Gross Sales.
4.6.1 The term "Gross Sales" means:
(1) All money, cash receipts, assets, property or other things of
value, including but not limited to gross charges, sales, rentals, fees and commissions
made or earned by Concessionaire and/or any assignees, licensees, permittees or
concessionaires thereof, whether collected or accrued from any business, use or
occupation, or any combination thereof, originating, transacted or performed in whole or
in part, on the Premises, including but not limited to rentals, the rendering or supplying of
services and the sale of goods, wares or merchandise, whether wholesale or retail,
whether for cash or credit, or otherwise, and including the value of all consideration other
than money received for any of the foregoing, without, except as expressly provided in
Section 4.6.2, deduction from gross receipts for any overhead or cost or expense of
operations, such as, but without limitation to salaries, wages, costs of goods, interest,
debt amortization, credit, collection costs, discount from credit card operations, insurance
and taxes. Gross Sales shall include the amount of all sales or orders taken, received,
including mail, catalog, telephone, telegraph, electronic communication (including without
limitation orders received through the internet), video, computer, cell phone, smart phone,
iPad, tablets, mobile technology, or other technology -based system whether existing now
or developed in the future, that are taken at or made from the Premises or other orders
received at the Premises. Each installment or credit sale shall be treated as a sale for the
full price in the month during which such sale is made, irrespective of whether or when
Concessionaire receives payment therefor. Gross Sales shall include any amount allowed
upon any "trade in," the full retail price of any merchandise delivered or redeemed for
trading stamps or coupons and all deposits not refunded to customers;
a. A "Sale":
Shall be deemed to have been consummated at the Premises
for purposes of this Agreement, and the entire amount of the sale price shall be included
in gross sales, at such time as (i) where the orders originate at or is attributable to the
Premises whether or not fulfilled by the Concessionaire or another related entity/delivery
partner and are accepted by Concessionaire in the Premises but delivery or performance
thereof is made from or at any place other than the Premises, or rendered at, in, on, from
or fulfilled by the Premises by Concessionaire or another related entity/delivery partner
(ii) the transaction is initially reflected in the books or records of Concessionaire, including
any related entity/delivery partner, or (iii) Concessionaire or such other entity receives all
or any portion of the sales price, or (iv) the applicable goods or services are delivered to
the customer or picked up at the curb or store, whichever first occurs, irrespective of
whether payment is made in installments, the sale is for cash or credit or otherwise, or all
or any portion of the sales price has actually been paid at the time of inclusion in gross
sales or at any other time.
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(2) Orders taken in or from the Premises, even if the orders are
filled elsewhere, and sales by any third -party delivery service provider in or from the
Premises;
(3) Gross receipts of all coin -operated devices that are placed on
the Premises by Concessionaire or pursuant to any rent concession, percentage or other
arrangement (but excluding revenue from telephones that are collected by a public and/or
private utility); and
(4) Rentals of any equipment, furniture, goods, wares or
merchandise.
4.6.2 Exclusions from Gross Sales. Gross Sales shall not include, or if
included shall be deducted (but only to the extent they have been included), the following:
(1) Sales and use taxes, so-called luxury taxes, consumers'
excise taxes, gross receipts taxes, and other similar taxes now or in the future imposed
on the sale of merchandise or services, but only if such taxes are added to the selling
price and collected from customers and paid directly by the Concessionaire to the
governmental authority;
(2) The amount of returns to shippers or manufacturers;
(3) The amount of any cash refund or credit refund made upon
transactions included within gross sales, not exceeding the selling price of merchandise
returned by the purchaser and accepted by Concessionaire which were previously
reported to the City, (except that Tenant shall not deduct from Gross Sales any refund or
credit for merchandise returned by customers who did not originally purchase the
merchandise from the Premises, including, but not limited to, refund or credits for sales
that originated from catalog, mail order, internet sales or electronic communication;
unless the sale was reported previously to Landlord). The amount of said refund shall be
considered an exclusion from Gross Sales in the month during which such refund is
provided by Concessionaire to the customer. The corresponding sale (whether paid in full
or partial), shall be treated as a sale for the full price in the month during which such sale
was consummated, irrespective of the time when Concessionaire shall receive payment
(whether in full or partial) from its customers;
(4) Sales of trade fixtures or personal property to be replaced by
Concessionaire that are not considered stock in trade;
(5) Sums and credits received in the settlement of claims for loss
of or damage to merchandise;
(6) Meals provided for officers or employees without charge;
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(7) Meals, goods or products provided for promotional or publicity
purposes without charge;
(8) Value added taxes ("VAT") or other taxes added to the selling
price of products and other similar taxes now or hereafter imposed upon the sale of
merchandise or services, whether such taxes are added to, or included in the selling price,
but only if collected from customers separately from the selling price and paid directly by
the Concessionaire to the governmental authority;
(9) Discounted sales to employees of Concessionaire, who are
employed at the Premises, not to exceed two percent (2%) of the monthly Gross Sales;
(10) Uncollectible credit accounts and other bad debts, not to
exceed two percent (2%) of the monthly Gross Sales;
(11) Amounts paid to charge card or credit card issuers, not to
exceed one percent (1 %) of the monthly Gross Sales; and
(12) Any type of tips from customers given to employees of
Concessionaire, provided the amount is separately stated, and actually paid in full to the
employees of Concessionaire.
4.6.3 Annual Statements of Gross Sales. Within thirty (30) days after the
end of each calendar year during the Term hereof and within thirty (30) days of
Termination of this Agreement, Concessionaire shall furnish to City a statement in writing,
certified by Concessionaire and a Certified Public Accountant to be correct, showing the
total Gross Sales made in, upon, or from and/or otherwise attributable to the Premises
during the preceding calendar year (or fractional year when applicable).
4.6.4 Sales and Charges. All sales and charges shall be recorded by point
of sale (POS) systems that display the amount of the transaction certifying the amount
recorded. The POS systems shall log daily sales totals and keep records of the
transaction numbers and sales details.
4.6.5 Production of Statement, Records and Audit. Concessionaire shall
keep at the Premises (and shall require any permitted third -party delivery service provider
to keep at the Premises) full, complete and proper books, records and accounts of its
daily Gross Sales, both for cash and on credit, at any time operated in the Premises.
Concessionaire agrees to make available for inspection by City at the Premises, a
complete and accurate set of books and records of all sales of goods, wares, and
merchandise and revenue derived from the conduct of business or activity in, at or from
the Premises from which Gross Sales can be determined. Concessionaire shall also
make available, upon City request, all supporting records. Concessionaire shall also
furnish City copies of its quarterly California sales and use tax returns at the time each is
filed with the State of California. Concessionaire shall retain and preserve for at least
three (3) years all records, books, bankbooks or duplicate deposit books and other
Concession Agreement — KIT at the Library, Inc. Page 9
evidence of Gross Sales. City shall have the right, upon reasonable notice, during the
Term and within one hundred eighty (180) days after Expiration or Termination of this
Agreement to inspect and audit Concessionaire's books and records and to make
transcripts to verify the Rent due to City. The audit may be conducted at any reasonable
time during normal business hours. Concessionaire shall cooperate with City in making
the inspection and conducting the audit. The audit shall be limited to the determination
of Gross Sales and shall be conducted during usual business hours in a manner that
minimizes any interference with the conduct of Concessionaire's regular business
operations. Any deficiency in payment of Rent and any overpayment of Rent shall be
paid or refunded, as applicable, within twenty (20) days after the completion of the audit.
City shall bear its costs of the audit unless the audit shows that Concessionaire
understated Gross Sales by more than two percent (2%), in which case Concessionaire
shall pay all City's reasonable costs of the audit. City shall not disclose financial
information received in confidence and pursuant to this Agreement except to carry out the
purposes of this Agreement unless disclosure is required (rather than permitted) by law.
However, City may disclose the results of any audit in connection with any financing
arrangements, the sale or transfer of City's interest in the Premises, pursuant to order of
a court or administrative tribunal, or to collect any outstanding Rent.
4.6.6 Concessionaire's Gross Sales Audit. In the event of any audit by
City in accordance with this Agreement, Concessionaire may contest the results of City's
audit by performing a confirming audit, at Concessionaire's expense, within sixty (60)
days of receipt of City's audit results and supporting evidence, using an independent
Certified Public Accountant reasonably acceptable to City.
4.6.7 Acceptance. The acceptance by City of any money paid to City by
Concessionaire as Percentage Rent for the Premises, as shown by any statement
furnished by Concessionaire, shall not be construed as an admission of the accuracy of
said statement, or of the sufficiency of the amount of the Percentage Rent payment.
4.7 Late Payment. Concessionaire hereby acknowledges that the late payment
of Rent or other sums due hereunder will cause City to incur costs not contemplated by
this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges. Accordingly, any sum
owed by Concessionaire that is not paid within five (5) days of its due date shall be subject
to a ten percent (10%) late charge. City and Concessionaire agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair compensation
to City for its loss suffered by such late payment by Concessionaire.
4.8 Interest on Unpaid Sums. Unpaid sums due to either City or Concessionaire
under this Agreement shall bear interest at the rate of ten percent (10%) per annum on
the unpaid balance, including but not limited to late payment penalties, from the date due
until paid.
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5. SECURITY DEPOSIT
5.1 Security Deposit. Upon execution hereof, Concessionaire shall also pay to
City a security deposit ("Security Deposit") as security for faithful performance of
Concessionaire's obligations hereunder. Such Security Deposit shall not be in lieu of any
Rent. Said Security Deposit in the sum of Five Thousand Dollars ($5,000.00) shall be
provided to City by Concessionaire. City may, at its option, claim from the Security Deposit
such amounts as are reasonably necessary to remedy Concessionaire's monetary
defaults hereunder, to repair damages to the Premises, or any combination thereof
caused by Concessionaire or agents of Concessionaire, exclusive to normal wear and
tear. In the event the Security Deposit or any portion thereof shall be applied as provided
herein, Concessionaire agrees to deposit with City within ten (10) calendar days after
written demand from City, an amount sufficient to restore said Security Deposit to its
original amount, and failure to do so shall constitute a breach of this Agreement. City may,
only to the extent as permitted by law, comingle the Security Deposit with other funds of
Concessionaire's account with the City. No interest shall accrue or be paid with respect
to the Security Deposit.
6. BUSINESS PURPOSES AND USE OF PREMISES
6.1 Business Purposes. The Premises are to be used by Concessionaire for the
operation of a concession selling food and non-alcoholic beverages, and catering events
held within the Property. Alcoholic beverages may be sold/provided by Concessionaire at
catered events held at the Property with the prior written consent of the Authorized City
Representative and subject to Concessionaire obtaining all required permits, licenses and
insurance. The Concessionaire shall be responsible for obtaining all required permits and
licenses for the provision of alcoholic beverages, including, but not limited to, Alcoholic
Beverage Control license(s). Concessionaire's proposed menus are attached as Exhibit
"B," and incorporated herein by reference. Pricing for these products will be comparable
to prices at nearby concession facilities.
6.2 Operation of Premises. Concessionaire shall operate and manage the
Premises in a manner comparable to other high -quality businesses providing similar food
and services. Deliveries shall be made and completed only between 7 a.m. and 6 p.m.
on non -holiday weekdays. The loading zone designated for use by Concessionaire for
deliveries, as depicted in Exhibit "C," which is attached hereto and incorporated herein by
reference, is shared with the Central Library and priority shall be given to deliveries for
the Central Library.
6.3 Prohibited Uses. Concessionaire shall not sell or permit to be kept, used,
displayed or sold in or about the Premises (a) pornographic or sexually explicit books,
magazines, literature, films or other printed material, sexual paraphernalia, or other
material which would be considered lewd, obscene or licentious, (b) any article which may
be prohibited by standard forms of fire insurance policies, or (c) any alcoholic beverages
not otherwise permitted and licensed under this Section 6 of the Agreement. Vending
machines, gaming machines or video or arcade games shall not be used or installed on
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the Premises unless expressly permitted by this Agreement. Concessionaire shall not
use or permit the use of the Premises in any manner that (a) creates a nuisance or (b)
violates any Law. Concessionaire shall not offer entertainment or broadcast music or
entertainment through exterior speakers or other form of transmission without the written
approval of City. In this event, Concessionaire shall obtain all required City permits and
approvals.
6.4 No Smoking. No smoking or vaping is permitted on the Property and
Premises. "Smoking" means and includes inhaling, exhaling, burning, or carrying any
lighted smoking equipment for tobacco or any other weed or plant. "Vaping" means and
includes inhaling or exhaling any vaporized liquid or solid, usually from a battery -operated
electronic device.
6.5 Food Packaging and Debris. Concessionaire shall use food packaging
consistent with good environmental practices, including prohibiting polystyrene (also
known as Styrofoam) from the Premises, minimizing the use of PVC plastics (especially
plastic bags for carrying food), and providing both trash receptacles and places for
customers to dispose of recyclable products.
6.6 Catering. Concessionaire shall be listed on the approved caterer list for the
Civic Center Community Room at Concessionaire's request.
6.7 Outdoor Dining. Concessionaire shall be permitted to use tables, in a non-
exclusive manner, within the entry atrium adjacent to the Premises, and on the paved
area outside of the Premises as depicted in Exhibit A. Concessionaire's use of the outdoor
dining area shall be in accordance with any applicable City zoning codes and State
requirements. The layout of the tables is subject to approval by the City. Concessionaire
may not expand into the Library area, or place any temporary furniture or objects in the
public areas of the Property without prior written approval of the City. All furniture and
associated equipment shall be capable of being moved or relocated to provide adequate
circulation and paths of travel around the Premises.
6.8 Operation. Concessionaire shall keep the Premises in operation and open
to the public for business in accordance with the following schedule:
Monday through Thursday from 7:00 a.m. to 4:00 p.m. (but in no event earlier than
6:30 a.m., and no later than 9:00 p.m.)
Friday from 7:00 a.m. to 4:00 p.m. (but no earlier than 6:30 a.m.)
Saturday from 8:00 a.m, to 4:00 p.m.
Sunday from 12:00 p.m. to 4:00 p.m. (but no earlier than 11:00 a.m.)
Concessionaire shall be closed on all City observed holidays, including but not limited to
New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, 4th of July,
Labor Day, Veteran's Day, Thanksgiving Day and Friday following, Christmas Day, and
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any other day the Central Library may be closed as designated by the City Manager or
the Library Services Director.
Concessionaire may close the Concession during periods of remodeling, reconstruction,
inventory, and emergencies or to comply with Laws with prior written approval from the
City.
6.9 Notice to Public Temporary Change in Operation. Concessionaire shall, at
least thirty (30) calendar days in advance of any closures for construction, or change in
hours of operation, notify City in writing and post notices in and upon the Premises, and
to Concessionaire's website and social media pages, informing customers of the
changes. Concessionaire shall immediately, or whenever reasonable at least forty-eight
(48) hours in advance, post notices in and upon the Premises, and to its website and
social media pages informing customers of any temporary change in hours of operation
due to early closures of the Central Library.
6.10 Food Preparation. Concessionaire shall install, at Concessionaire's own
expense, fire protective systems which are required by City, County, and state fire
ordinances. Concessionaire shall also install adequate ventilation systems to operate the
Premises. Concessionaire shall install, at Concessionaire's own expense, additional
equipment as listed in Exhibit "D," which is attached hereto and incorporated herein by
reference, required to prepare foods included on the proposed menu, which may be
necessary to operate Concessionaire's business. Concessionaire shall ensure that
additional equipment is installed properly pursuant to the manufacturer's specifications,
does not exceed the electrical or other utility loads designated for the Premises, and is in
compliance with all applicable local and state building codes and health department
regulations.
6.11 Advertising Display. Concessionaire may, at its own expense, place unlit
signs in or upon the Premises and Property subject to the prior written consent of City as
to the size, type, number, design and method of installation and in compliance with City's
sign code regulations. All signage placed by Concessionaire on, in or about the Premises
and Property shall remain the property of Concessionaire and shall be removed by
Concessionaire upon Termination or Expiration of this Agreement at Concessionaire's
expense; and any damage caused by removal shall be repaired at Concessionaire's
expense.
6.12 Marketing. Concessionaire may, at its own expense, promote KIT at the
Library, Inc. and distribute marketing materials consistent with the marketing plan
attached hereto as Exhibit "E," and incorporated herein by reference, subject to the written
approval of the City and the conditions and restrictions of the Agreement of Mutual
Understanding Regarding Declaration of Special Land Use Restrictions, Right of First
Refusal, Mortgage Lien and Option to Repurchase recorded on May 8, 1992 as
Instrument No. 92-304757 by and between The Irvine Company LLC and the City of
Newport Beach, which is attached hereto as Exhibit "F," and incorporated herein by
reference.
Concession Agreement — KIT at the Library, Inc. Page 13
6.13 Personnel. Concessionaire shall be responsible for hiring the necessary
personnel to conduct the daily operation of Concession. Concessionaire shall comply
with all federal, state, and local Laws related to minimum wage, social security,
nondiscrimination, ADA, unemployment compensation, and workers' compensation. If
required by City, employees shall wear a uniform and/or identification badge.
6.14 Independent Contractor. It is understood that Concessionaire is an
independent contractor and not an agent or employee of City. The manner and means of
operating the Premises are under the control of Concessionaire, except to the extent they
are limited by statute, rule or regulation and/or the expressed terms of this Agreement.
No civil service status or other right of employment shall accrue to Concessionaire's
employees. Nothing in this Agreement shall be deemed to constitute approval for
Concessionaire or any of Concessionaire's employees or agents, to be the agents or
employees of City. City shall have no interest in the business of Concessionaire.
6.15 No Distress Sales. No auction, fire, bankruptcy, "going out of business" or
other distress sales of any nature may be conducted on the Premises without the prior
written consent of an Authorized City Representative, which approval will not be
unreasonably withheld but may be conditioned.
6.16 Restroom Facilities for Employees. Concessionaire, its employees and
customers shall have full use of restroom facilities located within the Central Library as
called out on Exhibit "C". Restroom facilities are shared with the Central Library
employees and visitors, and are considered Common Area.
6.17 Parking for Employees. Concessionaire may use up to three (3) non-
exclusive parking spaces for Concessionaire and its employees' vehicles, located within
the parking structure at the Project on level two (2) or above.
7. TAXES, LICENSES AND OTHER OBLIGATIONS
7.1 Payment of Taxes. Concessionaire shall pay directly to the appropriate
taxing authorities all taxes applicable to this Agreement, fixtures and Concessionaire's
personal property on the Premises, that are levied or assessed against Concessionaire
during the Term. Taxes shall be paid at least ten (10) days before delinquency and before
any fine, interest or penalty is due or imposed by operation of law. Concessionaire shall,
upon request, promptly furnish to City satisfactory evidence of payment. Concessionaire
acknowledges that this Agreement may create a possessory interest subject to property
taxation and that Concessionaire may be subject to the payment of property taxes levied
on such interest. Concessionaire shall pay, before delinquency all taxes, assessments,
license fees and other charges ("Taxes") that are levied or assessed against
Concessionaire's interest in the Premises or any personal property installed on the
Premises.
Concession Agreement — KIT at the Library, Inc. Page 14
7.2 Payment of Obligations. Concessionaire shall promptly pay, when due, any
and all bills, debts, liabilities and obligations incurred by Concessionaire in connection
with Concessionaire's occupation and use of the Premises.
7.3 Challenge to Taxes. Concessionaire shall have the right in good faith, at its
sole cost and expense, to contest the amount or legality of any Taxes on or attributable
to this Agreement, the Premises, Concessionaire's personal property, or
Concessionaire's occupation and use of the Premises, including the right to apply for
reduction. If Concessionaire seeks a reduction or contests such taxes, Concessionaire's
failure to pay the taxes shall not constitute a default as long as Concessionaire complies
with the provisions of this Section. City shall not be required to join in any proceeding or
contest brought by Concessionaire unless the provisions of any Law require that the
proceeding or contest be brought by or in the name of City or any owner of the Premises.
In that case, City shall join in the proceeding or contest or permit it to be brought in City's
name as long as City is not required to bear any cost. If requested by Concessionaire,
City shall execute any instrument or document necessary or advisable in connection with
the proceeding or contest. Concessionaire, on final determination of the proceeding or
contest, shall immediately pay or discharge any decision or judgment rendered, together
with all related costs, charges, interest and penalties. Concessionaire shall indemnify,
defend and hold harmless City, including its City Council, appointed and elected officers,
boards and commissions, employees, Authorized City Representatives, agents and
volunteers, from and against any liability, claim, demand, penalty, cost or expense arising
out of or in connection with any contest by Concessionaire pursuant to this Section.
8. UTILITIES
Concessionaire shall be responsible for paying their pro-rata share of utilities furnished
to or used on the Premises, including, without limitation, gas, electricity, sewer, water,
refuse collection, telephone service, internet, and cable TV. Concessionaire's pro-rata
share shall be included on base rent invoices each quarter. Concessionaire may use
City's trash enclosures or public trash cans, provided however, that City may, at City's
discretion, require Concessionaire to arrange for its own refuse collection. Refuse
collection shall occur between 7 a.m. and 6 p.m. on non -holiday weekdays.
9. CONCESSIONAIRE IMPROVEMENTS; ALTERATIONS TO THE PREMISES
9.1 Concessionaire Improvements. Concessionaire acknowledges that City
has delivered the Premises with the improvements depicted in Exhibit "A". Subject to all
applicable laws, it shall be Concessionaire's responsibility to install or replace any
improvements to the Premises as necessary for the Concessionaire to operate in a
responsible, safe and lawful manner as described in Section 6 of this Agreement,
including those improvements depicted in Exhibit "G," which is attached hereto and
incorporated herein by reference ("Concessionaire Improvements"). Concessionaire shall
submit plans, diligently pursue their approval, and complete construction of
Concessionaire Improvements within twelve (12) months of the Effective Date of this
Agreement. Final design of the Concessionaire Improvements shall be subject to the prior
Concession Agreement — KIT at the Library, Inc. Page 15
written approval by City, as may be modified in order to obtain certain permits as may be
necessary. The installation of Concessionaire Improvements shall be in strict compliance
with the approved final design, and construction shall be performed between 7:00 a.m.
and 6:00 p.m. on non -holiday weekdays,
9.2 Concessionaire's Architects and Contractors. All Concessionaire
Improvements and any subsequent repairs, alterations, additions or improvements to any
of the foregoing shall be designed, selected or constructed, as applicable, by qualified
and licensed (where required) architectural, design, engineering, and construction firms
selected by Concessionaire. Any contractors hired by Concessionaire shall be fully
licensed and bonded. Concessionaire's contractors and any subcontractors shall obtain
insurance in an amount and form to be approved by City's Risk Manager, including
workers compensation insurance as required by law, general liability, automobile liability
and builder's risk insurance covering improvements to be constructed, all pursuant to
standard industry custom and practice. City, its elected or appointed officers, officials,
employees, agents and volunteers shall be named as an additional insured on the
contractors and any subcontractors policies.
9.3 Schedule for Required Improvements. Concessionaire shall submit plans,
diligently pursue their approval, and begin construction of Concessionaire Improvements
according to the following schedule:
Design Coordination, Preparation of
Upon execution of this Agreement
Construction Documents, and Obtain
Concessionaire shall coordinate with
Building Permits
City to coordinate all kitchen and dining
area designs, delivery conditions, and
construction drawings. Concessionaire
shall obtain building permits no later
than April 30, 2025.
Complete Construction
Within one hundred twenty (120) days
of delivery of Premises from City.
Open for Business ("Commencement
Concessionaire shall be ready to open
Date")
for business no later than August 1,
2025.
9.3.1 Construction Period. The period commencing the date on which the
Concessionaire receives possession of the Premises from the City and ending on the
Commencement Date (the "Construction Period"), Concessionaire shall be permitted to
enter the Premises for the sole purpose of installing furniture, fixtures and equipment
(including data and telephone lines and equipment), furnishings and decorations herein
Concessionaire Improvements, provided that (a) prior to Concessionaire's entry in the
Premises, Concessionaire shall furnish to City certificates of insurance satisfactory to
City evidencing Concessionaire's compliance with the requirements of Section 11.3, and
a schedule, for City's approval, which shall detail the timing and purpose of
Concession Agreement — KIT at the Library, Inc. Page 16
Concessionaire's entry; and (b) Concessionaire's work in the Premises prior to the
Commencement Date shall comply with the requirements of Section 9. Concessionaire's
occupancy of the Premises during the Construction Period shall be subject to all of the
terms, covenants and conditions of this Agreement, including, without limitation,
Concessionaire's indemnity obligations set forth in Section 11.3, except that City agrees
that Concessionaire's obligation to pay Base Rent and Percentage Rent (defined in
Section 4) shall be waived. Concessionaire shall, however, pay the cost of all utilities
and other services provided to the Premises prior to the Commencement Date that are
required by reason of Concessionaire's early occupancy.
9.3.2 Construction Coordination. Concessionaire shall be responsible for
coordinating with City to ensure that Concessionaire's proposed scope of
Concessionaire Improvements to the Premises complies with the energy and resource
efficient requirements, design guidelines for the project, points of connection with the
utilities, during the development of Concessionaire's design and construction drawings,
and coordination of trades and access to the Premises during Concessionaire's
construction of the Concessionaire Improvements at Concessionaire's sole cost.
9.4 Permits. Unless restricted by law, Concessionaire shall obtain, and be
responsible for the costs for all building permits, health department permits, alcohol
licensing permits, and other required permits prior to commencement of Concessionaire
improvements and operations. If applicable, Concessionaire shall be responsible, at its
sole cost and expense, for compliance with the California Environmental Quality Act
("CEQA") and the California Coastal Act in connection with Concessionaire's operation
and use of the Property.
9.5 Quality of Work Performed. All Concessionaire Improvements, alterations,
maintenance and other work shall be performed in a good and workmanlike manner,
shall comply with the plans and specifications submitted to City, and shall comply with
all applicable governmental permit requirements and Laws in force at the time permits
are issued.
9.6 Payment of Costs. Concessionaire shall pay all costs related to the
construction of the Concessionaire Improvements and any alterations by Concessionaire
or its agents.
9.7 Liens Prohibited. Concessionaire shall keep the Premises free from any
liens and shall not permit to be imposed, recorded or enforced against the Premises or
Property, any portion thereof or any structure or Concessionaire Improvement thereon,
any mechanics, materialmen's, contractors or other liens arising from, or any claims for
damages growing out of, any work or repair, construction or alteration of Concessionaire
Improvements on the Premises.
9.7.1 Release/Removal of Liens. In the event any lien or stop notice is
imposed or recorded on the Premises or Property, or a Concessionaire Improvement
permanently affixed to the Premises or Property during the Term, Concessionaire shall
Concession Agreement — KIT at the Library, Inc. Page 17
pay or cause to be paid all such liens, claims or demands before any action is brought
to enforce the same against the Premises or Property or the Concessionaire
Improvement. Notwithstanding the foregoing, if Concessionaire legitimately contests the
validity of such lien, claim or demand, then Concessionaire shall, at its expense, defend
against such lien, claim or demand provided that it provides City the indemnity in this
Agreement and provided Concessionaire shall pay and satisfy any adverse judgment
that may be rendered before any enforcement against City or the Premises or Property.
9.8 Costs of Construction. Concessionaire shall bear all costs and expenses
associated with the design and construction of the Premises, which costs and expenses
include without limitation all modifications, alterations and improvements to the Premises
which are further described and depicted in Exhibit G.
9.9 Prevailing Wages. Pursuant to the applicable provisions of the Labor Code
of the State of California, not less than the general prevailing rate of per diem wages
including legal holidays and overtime work for each craft or type of workman needed to
execute the work contemplated under this Section shall be paid to all workmen employed
on the work to be done according to this Section by the Concessionaire's contractors and
any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.),
the Director of Industrial Relations has ascertained the general prevailing rate of per diem
wages in the locality in which the work is to be performed for each craft, classification, or
type of workman or mechanic needed to execute the Concessionaire Improvements. A
copy of said determination is available by calling the prevailing wage hotline number (415)
703-4774, and requesting one from the Department of Industrial Relations.
Concessionaire's contractors and subcontractors are required to obtain the wage
determinations from the Department of Industrial Relations and post at the job site the
prevailing rate or per diem wages. It shall be the obligation of Concessionaire's
contractors or any subcontractor under him/her to comply with all State of California labor
laws, rules and regulations and the parties agree that the City shall not be liable for any
violation thereof.
9.10 Disposition of Concessionaire Improvements at Expiration or Agreement
Termination. Any Concessionaire Improvements or other alterations made to the
Premises, as well as any City common area furniture (excluding Concessionaire's
fixtures, equipment, furniture, and moveable decorations) shall remain on, and be
surrendered with, the Premises on Expiration or Termination of this Agreement. Except
in the case of termination for default as set forth under Section 15 of this Agreement, City
may require Concessionaire to remove any Concessionaire Improvements or alterations
that Concessionaire has made to the Premises by providing notice at least thirty (30) days
prior to the Expiration or Termination of this Agreement. If City requires such removal,
Concessionaire shall, at its cost, remove the Concessionaire Improvements or alterations
and restore the Premises to Good Condition before the last day of the Term, or within
thirty (30) days after notice is given, whichever is earlier. Prior to Expiration or within
fifteen (15) days after Termination of this Agreement, Concessionaire may remove any
moveable partitions, machinery, equipment, furniture, and trade fixtures previously
Concession Agreement — KIT at the Library, Inc. Page 18
installed by Concessionaire, provided that Concessionaire repairs any damage to the
Premises caused by removal.
10. MAINTENANCE OF PREMISES
10.1 Maintenance by Concessionaire. All furnishings, equipment, facilities,
Concessionaire Improvements, Alterations, attachments and appurtenances provided by
City or installed by Concessionaire, and required for concession operations, including all
kitchen equipment and interior and exterior furnishings, including items under warranty,
shall be maintained in Good Condition and repair by Concessionaire at its cost. Graffiti
shall be called in to City's Graffiti Hotline for removal.
10.1.1 Atrium Maintenance. The City shall be responsible for the repair
and maintenance of the areas of the Property immediately outside
of and adjacent to the Premises ("Atrium"), as it is part of the
Property, and will provide daily janitorial services to ensure the area
remains clean and presentable. The Concessionaire shall be
responsible for the upkeep of any furniture placed in the Atrium.
During operational hours, Concessionaire's staff shall manage the
cleanliness of the Atrium by clearing dishes, removing debris,
disposing of trash, wiping down tables, cleaning the floors in
Atrium, and performing any necessary spot -cleaning to maintain a
welcoming environment. City may perform Maintenance or repairs
in the event Concessionaire fails to commence required
Maintenance or repairs within the time provided by City in the
notice requesting such Maintenance or repair. The cost of any
Maintenance or repairs by the City pursuant to this Section shall be
payable as additional Rent. City may perform required cleaning and
charge the costs to Concessionaire if the Concessionaire fails to
perform within the time provided by City in the notice requesting
the cleaning and continue to Maintain the area as required by this
Agreement.
10.1.2 Water Heater. The Concessionaire shall be responsible for the cost
of general maintenance, repair, and replacement of the water
heater servicing the Premises to ensure it remains in proper
working condition. The City will be responsible for performing or
coordinating with a vendor to perform said maintenance and repair
work with the cost of such work reimbursed to City by
Concessionaire as additional Rent. The Concessionaire shall
promptly notify the City of any issues or required repairs related to
the water heater to facilitate timely maintenance. If the
Concessionaire causes damage to the water heater, the cost of
repairs will be borne by the Concessionaire, while the City will
coordinate and carry out the necessary repairs.
Concession Agreement — KIT at the Library, Inc. Page 19
10.2 Maintenance by City. City may perform maintenance in the event
Concessionaire fails to commence required maintenance within three (3) business days
after receipt of notice to do so. The cost of any maintenance by City pursuant to this
Section shall be payable as additional Rent. City may perform required cleaning and
charge the costs to Concessionaire if the Concessionaire fails to perform within five (5)
days after notice to do so and continue to maintain the area as required by this
Agreement.
10.2.1 Dumbwaiter. The City shall be responsible for the general
maintenance, repair, and replacement of the dumbwaiter located
within the Premises, as necessary to ensure it remains in safe and
operable condition throughout the Term. The Concessionaire shall
promptly notify the City of any issues or required repairs concerning
the dumbwaiter to support timely maintenance. If the
Concessionaire causes damage to the dumbwaiter, the cost of
repairs will be borne by the Concessionaire, while the City will
coordinate and carry out the necessary repairs.
10.2.2 Security Gate. The City shall be responsible for the general
maintenance and repair of the security gate located within the
Premises. The City agrees to ensure the security gate remains in
safe and functional condition throughout the Term of this
Agreement. The Concessionaire is responsible for promptly
notifying the City of any issues with the security gate to allow for
timely maintenance and repairs. If the Concessionaire causes
damage to the security gate, the cost of repairs will be borne by the
Concessionaire, while the City will coordinate and carry out the
necessary repairs.
10.3 Entry by City. Upon twenty-four (24) hour notice to Concessionaire, City
and its Authorized City Representatives may enter upon and inspect the Premises at any
reasonable time for any lawful purpose. In case of emergency, City or its Authorized City
Representative may enter the Premises by whatever force necessary if Concessionaire
is not present to open and permit an entry. Any entry to the Premises by City shall not
be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction of Concessionaire from the Premises or any portion thereof.
11. INDEMNITY AND EXCULPATION; INSURANCE
11.1 Hold -Harmless Clause. Concessionaire agrees to indemnify, defend and
hold harmless City, its City Council, Boards, Commissions, officers, agents, volunteers,
employees, and the State of California (collectively, the "Indemnified Parties") from and
against any and all claims (including, without limitation, claims for bodily injury, death or
damage to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorney's fees, disbursements and court costs) of every kind and nature
Concession Agreement — KIT at the Library, Inc. Page 20
whatsoever (individually, a "Claim"; collectively, "Claims"), which may arise from or in any
manner relate (directly or indirectly) to Concessionaire's possession, occupation or use
of the Premises, specifically including, without limitation, any claim, liability, loss, or
damage arising by reason of:
11.1.1 The death or injury to any Person or damage to personal property
caused or allegedly caused by the condition of the Premises or an
act or omission of Concessionaire or an agent, contractor,
subcontractor, supplier, employee, servant, sublessee or
concessionaire of Concessionaire;
11.1.2 Any work performed on the Premises or materials furnished to the
Premises at the request of Concessionaire or any agent or
employee of Concessionaire, with the exception of maintenance
performed by City; and/or
11.1.3 Concessionaire's failure to perform any provision of this Agreement
or to comply with any requirement of Law or any requirement
imposed on the Premises by any duly authorized governmental
agency or political subdivision.
Concessionaire's obligations pursuant to this Subsection shall not extend to any Claim
proximately caused by the sole negligence, willful misconduct, or unlawful or fraudulent
conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable.
11.2 Exculpation of City. Except as otherwise expressly provided in this
Agreement, City shall not be liable to Concessionaire for any damage to Concessionaire
or Concessionaire's property from any cause other than the sole negligence, intentional
or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this
Agreement, Concessionaire waives all claims against the Indemnified Parties arising for
any reason other than the sole negligence, intentional or willful acts of the Indemnified
Parties. City shall not be liable to Concessionaire for any damage to the Premises,
Concessionaire's property, Concessionaire's goodwill, or Concessionaire's business
income, caused in whole or in part by acts of nature including, without limitation, waves,
wind and ocean currents.
11.3 Insurance. In addition to insurance required of Concessionaire to be
obtained, provided, and maintained during the construction of the Concessionaire
Improvements, and without limiting Concessionaire's indemnification of City,
Concessionaire shall obtain, provide and maintain at its own expense during the term of
this Agreement, a policy or policies of liability insurance of the type and amounts specified
in Exhibit "H," which is attached hereto and incorporated herein by this reference.
Concession Agreement — KIT at the Library, Inc. Page 21
12. DAMAGE OR DESTRUCTION OF PROPERTY/PREMISES
12.1 Destruction of Premises. If the Premises are totally or partially destroyed,
rendering the Premises or any portion thereof totally or partially inaccessible or unusable,
Concessionaire shall restore the Premises to substantially the same condition as
immediately prior to such destruction (including all trade fixtures, personal property,
Concessionaire Improvements and Alterations as are installed by Concessionaire or its
contractors or subcontractors, which shall be replaced by Concessionaire at its expense).
Concessionaire may elect to terminate this Agreement by giving notice of such election
to City within sixty (60) days after the date of the occurrence of any casualty if the cost of
the restoration exceeds the amount of any available insurance proceeds, if the damage
has been caused by an uninsured casualty or event, or if Concessionaire reasonably
estimates that repairs of the Premises will take more than six (6) months. Upon such
termination, insurance proceeds applicable to reconstruction of the Premises (excluding
Concessionaire's personal property therein) shall be paid to City and Concessionaire
shall have no further liability or obligations under this Agreement.
12.2 Replacement of Concessionaire's Property. In the event of damage or
destruction of Concessionaire Improvements located on the Premises not giving rise to
Concessionaire's option to terminate this Agreement, Concessionaire shall, at its own
expense, replace and repair all Concessionaire's trade fixtures, equipment, machinery,
furnishings, furniture and inventory as soon as reasonably possible to permit the prompt
continuation of the Concession.
12.3 Destruction of the Property. In the event that all or a portion of the Property
is damaged, and the Premises or a material portion becomes inaccessible or
commercially unusable, and the damage or destruction cannot reasonably be repaired
within twelve (12) months after the date of the casualty, City shall have the right to either:
12.3.1 Terminate this Agreement. City shall give Concessionaire written
notice of termination within thirty (30) days following the date of the casualty,
which shall be effective sixty (60) days after the date of the notice; or
12.3.2 Repair the damage at City's expense. City shall give Concessionaire
written notice of its intention to repair such damage as soon as reasonably
possible at City's expense, in which event this Agreement shall continue in
full force and effect; however, Rent shall be abated in accordance with the
procedures set forth in Section 13. If City fails to commence repairs within
one hundred twenty (120) days after its notice of its intention to repair, then
Concessionaire may terminate this Agreement by giving City written notice
at any time prior to the commencement of repairs. In such event, this
Agreement shall terminate as of the date of notice from Concessionaire to
City, and City shall have no liability under this Agreement.
Concession Agreement — KIT at the Library, Inc. Page 22
13. ABATEMENT OF RENT
13.1 Concessionaire Improvements; Approved Construction. Concessionaire's
payment of Percentage Rent shall be abated during the construction of Concessionaire
Improvements not to exceed twelve (12) months from the Effective Date of this
Agreement. Concessionaire shall provide documentation of construction activity at least
forty-five (45) calendar days prior to the commencement of the scheduled construction
and the City's subsequent written approval. In no way shall abatement of Percentage
Rent pursuant to this subsection: (a) exceed Twenty -Five Thousand Dollars ($25,000) in
the aggregate during the Term of this Agreement, and (b) exceed twelve (12) months,
whether consecutively or collectively. "Construction" shall mean the installation of
Concessionaire Improvements in strict compliance with the design plans approved in
writing by City.
13.2 Damage or Destruction. In the event of damage or destruction of the
Premises or damage to the Property that impacts the Premises where this Agreement is
not terminated, Concessionaire shall continue to utilize the Premises for the operation of
its business as permitted in Section 6 to the extent it may be practicable and commercially
reasonable. Concessionaire's obligation to pay taxes pursuant to this Agreement shall
not be abated or reduced. Rent shall not abate if the damage or destruction to the
Premises is the result of the negligence or willful conduct of Concessionaire or its
employees, officers or agents.
13.3 No Abatement for Maintenance. Concessionaire shall not be entitled to
any abatement of Base Rent or Percentage Rent for any temporary closures for general
maintenance of the Premises to keep the Concession operating in a manner comparable
to other high -quality concession businesses.
14. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND
ENCUMBERING
14.1 Prohibition of Assignment. City and Concessionaire acknowledge that City
is entering into this Agreement in reliance upon the experience and abilities of
Concessionaire. Consequently, Concessionaire shall not voluntarily assign or encumber
its interest in this Agreement or in the Premises, or assign substantially all or any part of
the Premises, or allow any other person or entity (except Concessionaire's authorized
representatives) to occupy or use all or any part of the Premises without the prior written
consent of City. City's consent to any assignment or other transfer is subject to
Concessionaire providing City with evidence reasonably satisfactory to City that the
proposed transferee has financial strength and restaurant or food service experience
comparable to Concessionaire and the use of the Premises by the proposed transferee
is consistent with the terms of this Agreement. Except as otherwise expressly provided
herein, any dissolution, merger, consolidation, reorganization of Concessionaire, or the
sale or other transfer resulting in a transfer of a controlling percentage of the capital stock
of Concessionaire, shall be deemed a voluntary assignment; provided, however, that the
sale or transfer of a controlling percentage of the capital stock of Concessionaire pursuant
Concession Agreement — KIT at the Library, Inc. Page 23
to a public offering(s) of equity or debt instruments issued by Concessionaire, or other
transfers of publicly traded capital stock or debt instruments shall not constitute a
voluntary assignment and shall not require City's consent or approval. The phrase
"controlling percentage" means the ownership of, or the right to vote, stock possession of
at least fifty percent (50%) of the total combined voting power of all classes of
Concessionaire's capital stock issued, outstanding, and entitled to vote for the election of
directors, except for ownership of publicly traded shares, warrants or similar equity
interests in Concessionaire traded on a national exchange or over-the-counter markets.
15. DEFAULT
15.1 Default by Concessionaire. The occurrence of any one (1) or more of the
following events shall constitute a default and material breach of this Agreement by
Concessionaire:
15.1.1 The vacating or abandonment of the Premises by Concessionaire
for more than fifteen (15) consecutive days that was not otherwise
expressly permitted under this Agreement or pre -approved in writing
by City;
15.1.2 The revocation of any of Concessionaire's licenses issued by the
State;
15.1.3 The failure by Concessionaire to make any payment of Rent or any
other payment required by this Agreement, as and when due, when
such failure shall continue for a period of ten (10) days after written
notice of default from City to Concessionaire;
15.1.4 Except as specified in Subsection 15.1(2), the failure of
Concessionaire to observe or perform any of the material
covenants, conditions or provisions of this Agreement to be
observed or performed by Concessionaire where such failure shall
continue for a period of ten (10) days after written notice thereof
from City to Concessionaire; provided, however, that if the nature of
Concessionaire's default is such that more than ten (10) days are
reasonably required for its cure, then Concessionaire shall not be
deemed to be in default if Concessionaire commences such cure
within said ten (10) day period and thereafter diligently prosecutes
such cure to completion;
15.1.5 The making by Concessionaire of any general arrangement or
assignment for the benefit of creditors;
15.1.6 Concessionaire becomes a "debtor" as defined in 11 U.S.C. Section
101 or any successor statute thereto (unless, in the case of a
Concession Agreement — KIT at the Library, Inc. Page 24
petition filed against Concessionaire, the same is dismissed within
ten (10) days);
15.1.7 The appointment of a trustee or receiver to take possession of
substantially all of Concessionaire's assets located at the Premises
or of Concessionaire's interest in this Agreement, where such
appointment is not discharged within ten (10) days; and
15.1.8 The attachment, execution or the judicial seizure of substantially all
of Concessionaire's assets located at the Premises or of
Concessionaire's interest in this Agreement, where such seizure is
not discharged within sixty (60) days.
15.2 Remedies.
15.2.1 Cumulative Nature of Remedies. If any default by Concessionaire
shall continue without cure as required by this Agreement, City shall have the remedies
described in this Section in addition to all other rights and remedies provided by law or
equity, to which City may resort cumulatively or in the alternative.
15.2.2 Reentry without Termination. City may reenter the Premises, and,
without terminating this Agreement, re -let all or a portion of the Premises. City may
execute any agreements made under this provision in City's name and shall be entitled
to all rents from the use, operation, or occupancy of the Premises. Concessionaire shall
nevertheless pay to City on the dates specified in this Agreement the equivalent of all
sums required of Concessionaire under this Agreement, plus City's expenses in
conjunction with re -letting, less the proceeds of any re -letting or atonement. No act by or
on behalf of City under this provision shall constitute a Termination of this Agreement
unless City gives Concessionaire specific written notice of Termination.
15.2.3 Termination. City may terminate this Agreement by giving
Concessionaire notice of Termination. In the event City terminates this Agreement, City
may recover possession of the Premises (which Concessionaire shall surrender and
vacate upon demand) and remove all Persons and property. City shall be entitled to
recover the following as damages:
(1) The value of any Rent or other charges that are unpaid at the
time of Termination;
(2) The value of the Rent and other charges that would have
accrued after Termination less the amount of Rent and charges City received or could
have received through the exercise of reasonable diligence as of the date of the award;
(3) Any other amount necessary to reasonably compensate City
for the detriment proximately caused by Concessionaire's failure to perform its obligations
under this Agreement; and
Concession Agreement — KIT at the Library, Inc. Page 25
(4) At City's election, such other amounts in addition to or in lieu
of the foregoing as may be permitted from time -to -time by applicable California law. City
shall be entitled to interest at the rate of ten percent (10%) per annum on all Rent and
other charges from the date due or the date they would have accrued. City shall also be
entitled to an award of the costs and expenses incurred by City in maintaining or
preserving the Premises after default, preparing the Premises for re -letting, or repairing
any damage caused by the act or omission of Concessionaire.
15.2.4 Use of Concessionaire's Personal Property. City may use
Concessionaire's personal property and trade fixtures located on the Premises or any of
such property and fixtures without compensation or liability to Concessionaire for use or
damage. In the alternative City may store the property and fixtures at the cost of
Concessionaire. City shall not operate the Premises in any manner tending to indicate
that the Premises are affiliated with, part of or operated in conjunction with
Concessionaire's business.
15.3 City's Right to Cure Concessionaire's Default. Upon continuance of any
default beyond applicable notice and cure periods, City may, but is not obligated to, cure
the default at Concessionaire's cost. If City pays any money or performs any act required
of, but not paid or performed by, Concessionaire after notice, the payment and/or the
reasonable cost of performance shall be due as additional Rent not later than five (5)
days after service of a written demand accompanied by supporting documentation. No
such payment or act shall constitute a waiver of default or of any remedy for default or
render City liable for any loss or damage resulting from performance.
16. WASTE OR NUISANCE
Concessionaire shall not commit or permit the commission of any waste on the
Premises. Concessionaire shall not maintain, commit, or permit any nuisance as defined
in Section 3479 of the California Civil Code on the Premises. Concessionaire shall not
use or permit the use of the Premises for any unlawful purpose, including, but not limited
to, any use that violates City's charter or Municipal Code.
17. NO CONFLICTS OF USE, HAZARDOUS MATERIALS
City represents and warrants that, to the best of City's knowledge, (i)
Concessionaire's use of the Premises does not conflict with applicable Laws, and City
knows of no reason why Concessionaire would be unable to obtain all required permits,
licenses and approvals from the appropriate governmental authorities; (ii) the Property is
not in violation of any environmental laws, rules or regulations and Concessionaire's
contemplated uses will not cause any such violation; and (iii) the Property is free of any
and all Hazardous Materials as of the date of this Agreement. In the event that the
presence of any Hazardous Materials not caused by Concessionaire is detected at the
Property at any time during the Term of this Agreement all remedial work shall be
performed by City at City's expense. Concessionaire's obligation to open shall be delayed
until the remedial work is completed if the remedial work is performed prior to
Concession Agreement — KIT at the Library, Inc. Page 26
Concessionaire opening for business. Concessionaire's obligation to pay Rent shall be
abated in direct proportion to the extent Concessionaire is unable to conduct its business
upon the Premises as a result of any remedial work that is performed subsequent to
Concessionaire opening for business. Concessionaire shall have the right (but not the
obligation) to terminate this Agreement, upon thirty (30) days advance written notice to
City in the event that Hazardous Materials are detected at the Property and the presence
or the remediation materially affects Concessionaire's ability to conduct its business in
the Premises. "Hazardous Materials" shall mean any oil, flammable explosives,
asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic,
contaminated or polluting materials, substances or wastes, including, without limitation,
any "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic
substances" under applicable federal, state and local laws, ordinances and regulations.
18. FORCE MAJEURE; EXTENSIONS OF TIME OF PERFORMANCE
18.1. Neither Party will be liable for any failure or delay in performing an obligation
under this Agreement that is due to any of the following causes (hereinafter "Force
Majeure"): acts of God, war, terrorist act, government -mandated quarantine restrictions,
riot, natural catastrophes, Federal or state governmental acts or omissions, national
strikes, fire, or explosion, provided that the Force Majeure is unforeseeable, beyond the
control of, and not due to the fault or negligence of the Party claiming the Force Majeure.
For the avoidance of doubt, Force Majeure shall not include (a) the novel coronavirus
Covid-19 pandemic, which is ongoing as of the date of the execution of this Agreement;
(b) financial distress or the inability of either Party to make a profit or avoid a financial
loss, (c) changes in the market prices or conditions, or (d) a Party's financial inability to
perform its obligations hereunder.
18.2. A Party's excuse in liability from failure or delay in performing an obligation
under this Agreement due to Force Majeure shall only be to the extent caused by the
Force Majeure and shall not be any longer than the period commencing from when the
requisite written notice is given and ending when the Party is no longer delayed or
prevented from performing on account of the Force Majeure. A Party claiming Force
Majeure shall promptly notify the other Party in writing, no later than five (5) days after the
commencement of delay or inability to perform, and the Party shall continue with
commercially reasonable diligence in an effort to limit the period of nonperformance or
delay. Time of performance under this Agreement may also be extended in writing by City
and Concessionaire.
19. CITY'S DEFAULTS/CONCESSIONAIRE'S REMEDIES
City shall be in default if it materially interferes with Concessionaire's use of the
Premises for its intended purpose and City fails to cure such default within ten (10) days
after a second demand by Concessionaire.
Concession Agreement — KIT at the Library, Inc. Page 27
20. EVENT OF BANKRUPTCY
20.1 If this Agreement is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. or any similar or
successor statute ("Bankruptcy Code"), any and all monies or other consideration payable
or otherwise to be delivered in connection with such assignment shall be paid or delivered
to City, shall be and remain the exclusive property of City and shall not constitute property
of Concessionaire or of the estate of Concessionaire within the meaning of the
Bankruptcy Code. Any and all monies or other consideration constituting City's property
under this Section not paid or delivered to City shall be held in trust for the benefit of City
and be promptly paid or delivered to City.
20.2 Any person or entity to which this Agreement is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to have
assumed all of the obligations arising under this Agreement on and after the date of such
assignment, including the obligation to operate the business which Concessionaire is
required to operate under this Agreement.
21. NOTICES
Any notice, demand, request, consent, approval or communication that either party
desires or is required to give shall be in writing and shall be deemed given three (3) days
after deposit into the United States registered mail, postage prepaid, by registered or
certified mail, return receipt requested. Unless notice of a different address has been
given in accordance with this Section, all notices shall be addressed as follows:
If to City, to: CITY OF NEWPORT BEACH
Attn: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
If to Concessionaire, to: Eunice Hwang
c/o KIT at the Library, Inc.
39 Blossom
Irvine, CA 92620
(714) 606-3471
22. SURRENDER OF PREMISES
At the Expiration or earlier Termination of this Agreement, Concessionaire shall
surrender to City the possession of the Premises. Concessionaire shall leave the
surrendered Premises, required personal property and fixtures, in Good Condition,
reasonable wear and tear excepted. All property that Concessionaire is not required to
surrender, but that Concessionaire does abandon shall, at City's election, become City's
property.
Concession Agreement — KIT at the Library, Inc. Page 28
23. COMPLIANCE WITH ALL LAWS
Concessionaire shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including federal,
state, county or municipal, whether now in force or hereinafter enacted. In addition, all
work prepared by Concessionaire shall conform to applicable City, county, state and
federal laws, rules, regulations and permit requirements and be subject to approval of an
Authorized City Representative.
24. WAIVERS
The waiver by either party of any breach or violation of any term, covenant or
condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed
to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of
any subsequent breach or violation of the same or other term, covenant, condition,
ordinance, law or regulation. The subsequent acceptance by either party of any fee,
performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
the other party of any term, condition, covenant of this Agreement or any applicable law,
ordinance or regulation.
25. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
26. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California in effect at the time of the execution of this Agreement. Any action brought
relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the
County of Orange.
27. ENTIRE AGREEMENT; AMENDMENTS
27.1 The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire agreement of the
parties with respect to the subject matter of this Agreement.
27.2 This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Concessionaire and City.
27.3 No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written
amendment to this Agreement.
Concession Agreement — KIT at the Library, Inc. Page 29
27.4 The terms and conditions of this Agreement shall not be altered or modified
except by a written amendment to this Agreement signed by Concessionaire and City.
27.5 If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or the documents expressly
incorporated by reference, the terms and conditions of this Agreement shall control.
27.6 Any obligation of the parties relating to monies owed, as well as those
provisions relating to limitations on liability and actions, shall survive termination or
expiration of this Agreement.
27.7 Each party has relied on its own inspection of the Premises and examination
of this Agreement, the counsel of its own advisors, and the warranties, representations,
and covenants in this Agreement. The failure or refusal of either party to inspect the
Premises, to read this Agreement or other documents, or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim that
might have been based on such reading, inspection, or advice.
28. TIME IS OF THE ESSENCE
Time is of the essence for this Agreement. Concessionaire agrees to proceed in
an efficient and timely manner to obtain all necessary approvals, licenses and permits
required to engage in the business services as described under Section 6.
29. SUCCESSORS
Subject to the provisions of this Agreement on assignment and subletting, each
and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the heirs, successors, executors, administrators, assigns, and
personal representatives of the respective parties.
30. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise
apply.
31. TABLE OF CONTENTS; HEADINGS
The table of contents of this Agreement and the captions of the various sections
of this Agreement are for convenience and ease of reference only and do not define, limit,
augment, or describe the scope, content, or intent of this Agreement.
Concession Agreement — KIT at the Library, Inc. Page 30
32. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The singular
number includes the plural whenever the context so requires.
33. EXHIBITS
All exhibits to which reference is made in this Agreement are incorporated by
reference. Any reference to "this Agreement" includes matters incorporated by reference.
34. MEMORANDUM OF CONCESSION AGREEMENT
A Memorandum of Concession Agreement, in a form and content similar to that
contained in Exhibit "I," which is attached hereto and incorporated by reference, shall be
recorded by the parties promptly upon execution of this Agreement. Upon execution by
both parties, the Memorandum of Concession Agreement shall be recorded against the
Premises in the office of the Orange County Clerk -Recorded, as required by Government
Code Section 37393.
35. CITY BUSINESS LICENSE
Concessionaire shall obtain and maintain during the duration of this Agreement, a
City business license as required by the Newport Beach Municipal Code.
36. NO ATTORNEYS' FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be entitled
to recover its attorneys' fees.
37. NONDISCRIMINATION
Concessionaire, for itself and its successors, agrees that in the performance under
this Agreement, Concessionaire shall not discriminate against any person because of the
marital status or ancestry of that person or any characteristic listed or defined in
Government Code Section 11135.
38. NO THIRD PARTY BENEFICIARIES
City and Concessionaire do not intend, by any provision of this Agreement, to
create in any third party, any benefit or right owed by one party, under the terms and
conditions of this Agreement, to the other party.
Concession Agreement — KIT at the Library, Inc. Page 31
39. LAWS
It shall be the obligation of Concessionaire to comply with all laws, statutes, rules,
and regulations including, but not limited to, State of California labor laws, rules and
regulations and the parties agree that City shall not be liable for any violation by
Concessionaire (or Concessionaire's agent, sublessee or any party affiliated with
Concessionaire) thereof.
40. NO DAMAGES
Concessionaire acknowledges that City would not enter into this Agreement if it
were to be liable for damages (including, but not limited to, actual damages, economic
damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement
or any of the matters referred to in this Agreement, including, without limitation, any and
all plans, permits, licenses or regulatory approvals, and CEQA documents. Accordingly,
Concessionaire covenants and agrees on behalf of itself and its successors and assigns,
not to sue City for damages (including, but not limited to, actual damages, economic
damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of
this Agreement by City or for any dispute, controversy, or issue between City and
Concessionaire arising out of or connected with this Agreement or any of the matters
referred to in this Agreement, including, without limitation, any and all plans, permits,
licenses or regulatory approvals, CEQA documents, or any future amendments or
enactments thereto, the parties agreeing that declaratory relief, injunctive relief, mandate
and specific performance shall be Concessionaire's sole and exclusive judicial remedies.
41. GOVERNMENT CLAIMS ACT
Concessionaire and City agree that in addition to any claims filing or notice
requirements in this Agreement, Concessionaire shall file any claim that Concessionaire
may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.), or any successor statute.
42. COUNTERPARTS
This Agreement may be executed in two (2) or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one (1) and the
same instrument.
[SIGNATURES ON NEXT PAGE]
Concession Agreement — KIT at the Library, Inc. Page 32
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH ("City"),
OFFICE OF THE CITY ATTORNEY a California municipal corporation and
charter city
Date: 13 Date:
By: By:
Aaron C. p Grage Leung
City AttorrqCit anager
ATTEST:
Am
By:
Lei
City Clerk
CONCESSIONAIRE: KIT at the Library,
Inc., a California stock corporation
Date:
Signed in Counterpart
Bv:
Eunice Hwang
Managing Member
Attachments: Exhibit "A"
— Premises
Exhibit "B"
— Proposed Menus
Exhibit "C"
— Loading Zone and Restroom Depiction
Exhibit "D"
— Concessionaire Equipment List
Exhibit "E"
— Marketing Plan
Exhibit "F"
— Special Land Use Restrictions
Exhibit "G"
— Concessionaire Improvements
Exhibit "H"
— Insurance
Exhibit "I" —
Memorandum of Concession Agreement
Concession Agreement — KIT at the Library, Inc. Page 33
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date:
By:
Aaron C. JJ p 3��a .as7l
City Attorrt
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH ("City"),
a California municipal corporation and
charter city
Date:
By:
Grace K. Leung
City Manager
CONCESSIONAIRE: KIT at the Library,
Inc., a California stock corporation
Date: 3 / 1412S
By:
Eunice Hwang
Managing Member
Attachments: Exhibit "A" — Premises
Exhibit "B" — Proposed Menus
Exhibit "C" — Loading Zone and Restroom Depiction
Exhibit "D" — Concessionaire Equipment List
Exhibit "E" — Marketing Plan
Exhibit "F" — Special Land Use Restrictions
Exhibit "G" — Concessionaire Improvements
Exhibit "H" — Insurance
Exhibit "I" — Memorandum of Concession Agreement
(�nr�nocoinn Anr ---+ I,IIT _++1-- I ih.-.-..•., 1 r-1- . nn
EXHIBIT "A"
PREMISES
Concession Agreement - KIT at the Library, Inc. Exhibit A-1
Li /�Exhibit A
ti
EXHIBIT "B"
PROPOSED MENUS
Concession Agreement - KIT at the Library, Inc. Exhibit B-1
Exhibit B-1
ESPRESSO
LATTE
5.5
CORTADO
4.5
CAPPUCCINO
5
MACCHIATO
4.5
ESPRESSO
4
AMERICANO
4
VANILLA LATTE 6
CARAMEL LATTE 6
DARK CHOCOLATE MOCHA 6
CREME BRULEE LATTE 6.5
COFFEE
COFFEE 3/4
COLD BREW 5
SIGNATURE DRINKS
STRAWBERRY ALARM CLOCK 7
ESPRESSO + STRAWBERRY OAT MILK
THANK YOU BERRY MATCHA
7
MATCHA + STRAWBERRY OAT MILK
HORCHATA MATCHA
7
OAT MILK CINNAMON MATCHA WITH VANILLA
PURPLE DREAM
7.5
UBE COCONUT OAT MILK TOPPED WITH
SALTED COCONUT CREAM
LAVENDER SKIES
6
ESPRESSO+ BLUEBERRY LAVENDER MILK
LAVENDER FIELDS
6
MATCHA + BLUEBERRY LAVENDER MILK
TEA
LONDON FOG 5.5
MATCHA TEA LATTE 5.5
CHAI TEA LATTE 5.5
KOMBUCHA 6
LOOSE LEAF TEA 4
MATCHA GREEN ICED TEA 5
PASSION JASMINE ICED TEA 4
ORGANIC TEAS
ENGLISH BREAKFAST
EARL GREY
WUYI OOLONG
ASHWAGANDA PU-ERH
JASMINE GREEN
MATCHA
WHITE PEONY
ROSEHIPS HIBISCUS
GINGER LEMON
HERBAL MINT
CHAMOMILE
MILK ALTERNATIVES
OAT MILK 1
ALMOND MILK 1
Exhibit B-2
AVOCADO TOASTS
CAPRESE AVOCADO TOAST...........................................................................
14
ARUGULA, MOZZARELLA CHEESE, CHERRYTOMATOES, BASIL, LEMON ZEST, BALSAMIC
SMOKED AVOCADO TOAST.............................................................................
15
BACON, CHERRY TOMATO, SMOKED PAPRIKA, LEMON ZEST & CHIVES
SPRING AVOCADO TOAST...............................................................................
14
ARUGULA, CUCUMBER, TOMATO, PICKLED ONION, GOAT CHEESE, LEMON GARLIC VINAIGRETTE
HOT' N SWEET AVOCADO TOAST.....................................................................
11
LEMON PEPPER, CHILI FLAKES, DRIZZLE OF HOT AND SWEET HONEY
LOX AVOCADO TOAST.....................................................................................
18
ARUGULA, CHILI FLAKES, CUCUMBER, LEMON VINAIGRETTE, PICKLED ONION, SMOKED SALMON,
EVERYTHING BUT THE BAGEL SEASONING, CAPER, CHIVES AND SIDE OF SLICED LEMON
SAVORY
BREAKFAST BURRITO.....................................................................................
16
SCRAMBLED EGG, CILANTRO RICE, HASH BROWN, CHEDDAR JACK, GRILLED ONION, CHOOSE FROM
BACON OR CHORIZO OR SOYRIZO (+1) OR NO MEAT
GRILLED CAPRESE PANINI...............................................................................12
HEIRLOOM TOMATOES, MOZZARELLA, BASIL, GARLIC AIOLI, BALSAMIC DRIZZLE
TURKEY PESTO SANDWICH..............................................................................14
TURKEY, PROVOLONE, GOUDA, SUN-DRIED TOMATOES, SPROUTS, MUSTARD AIOLI
B.L.T. SANDWICH..............................................................................................14
BACON, LETTUCE, HEIRLOOM TAOMATOES, AVOCADO, GARLIC AIOLI
KIMCHI BACON GRILLED CHEESE......................................................................14
BACON, KIMCHI JAM, MOZZERELLA, GARLIC BUTTER SPREAD
THEEGG SANDO.............................................................................................10
JAPANESE EGG SALAD, KEWPIE MAYO, SOFT BOILED EGG, MUSTARD AIOLI
VEGGIE DELIGHT..............................................................................................11
AVOCADO, HEIRLOOM TOMATOES, CUCUMBERS, RED ONION, LETTUCE, SPROUTS, RED WINE VINAIGRETTE
CLASSIC COBB SALAD......................................................................................14
CHICKEN, BACON, LETTUCE, AVOCADO, HARD BOILED EGG, RED ONION, BLUE CHEESE CRUMBLE
RED WINE VINAIGRETTE
TWO EGGS ARUGULA SALAD............................................................................
13
ARUGULA, CHERRY TOMATOES, AVOCADO, TWO SOFT BOILED EGGS, LEMON GARLIC VINAIGRETTE
BALSAMIC DRIZZLE & CHIVES
SWEET
BRULEETOAST.............................................................................................. 7
BRIOCHE TOAST BRULEED AND DUSTED WITH CHOICE OF CINNAMON / MATCHA / SOUR CHERRY
EXHIBIT "C"
LOADING ZONE AND RESTROOM DEPICTION
Concession Agreement - KIT at the Library, Inc. Exhibit C-1
Exhibit C
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CONCESSIONAIRE EQUIPMENT LIST
Concession Agreement - KIT at the Library, Inc. Exhibit D-1
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EXHIBIT "E"
MARKETING PLAN
Concession Agreement - KIT at the Library, Inc. Exhibit E-1
Exhibit E
KIT COFFEE MARKETING STRATEGY
To effectively market Kit Coffee at the Library, we will focus on building a strong local
presence both online and off line. On Instagram, we will showcase our signature drinks,
cozy ambiance, and community events through high -quality photos, engaging stories,
and user -generated content, encouraging followers to tag us and share their
experiences. Additionally, we will distribute eye-catching fliers in permitted areas inside
the library, nearby neighborhoods, local businesses, offering a special promotion like a
discount or free drink with the purchase of a coffee, to drive foot traffic. Collaborating
with the library and local events will further boost brand visibility and attract customers
to the shop as well.
EXHIBIT "F"
SPECIAL LAND USE RESTRICTIONS
RECORDING REQUESTED BY:
FIDELITY NATIONAL TITLE INSURANCE CO.
i
WHEN RECORDED MAIL TO:
City of Newport Beach
i Attn: City Clerk
j 3300 Newport Beach Blvd.
P.O. Box 1768
Newport Beach, CA 92658-8915
This Document was electronically recorded by
Fidelity National Major Accounts
1 : �d n Official Records, Orange County
om a , Clerk -Recorder
7011 JA -3 AMi 11liffill Jill Jill II1Jill Ill IIII Jill1IIIB NO FEE
rlC'- 2010000634193 04:30pm 11/24/10
THE �� 6 Al2 6
C{TV (I.,,r� 0.00 0.00 15.00 0.00 0.00 0.00
AGREEMENT OF MUTUAL UNDERSTANDING REGARDING DECLARATION OF SPECIAL LAND USE
RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE RECORDED ON
MAY 8,1992 AS INSTRUMENT NO.92-304757
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(ADDITIONAL RECORDING FEE APPLIES)
uyy-- estled By
T
��F.i{✓YJ Ey ,�Cbil...Ad� ide -
RECORDED AT REQUEST OF,
AND WHEN RECORDED MAIL TO:
City of Newport Beach
Attn: City Clerk
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658-8915
WITH A CONFORMED COPY TO:
The Irvine Company LLC
Attn: Legal Department
550 Newport Center Drive
Newport Beach, CA 92660
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This document is exempt from
filing fees per Govt. Code §
6103, recording fees per Govt.
Code § 27383 and is exempt
from Document Transfer Tax
per Rev. & Taxation Code §
11922
4erqt 0� Mutual Understanding Regarding Declaration of Special Land Use Restrictions,
Right of First Refusal, Mortgage Lien and Option to Repurchase recorded on May
8, 1992 as Instrument No. 92-304757
WHEREAS, The Irvine Company LLC, A Delaware Limited Liability Company
("Declarant") granted to City of Newport Beach, a California Municipal Corporation
("Grantee") via a Declaration/Exchange Agreement/Transfer Agreement (collectively,
"Declaration") recorded May 8, 1992 as Orange County Document No. 92-304757 those
certain properties identified as: (1) the southwesterly one-half of Parcel 2 as shown on
Parcel Map No. 90-361, recorded in Book 270, Pages 15 to 18, inclusive, of Parcel
Maps, Records of Orange County; and (2) the northwesterly one-half of Parcel 2 as
shown on Parcel Map No. 90-361, recorded in Book 270, Pages 15 to 18, inclusive, of
Parcel Maps, Records of Orange County (collectively, "Parcel 2, Parcel Map No. 90-
361" or "Property').
WHEREAS, Grantee desires to construct a new Civic Center project on or
adjacent to the Property pursuant to Newport Beach Charter Section 425.
WHEREAS, Declarant and Grantee both desire to confirm that the Declaration
allows the development of the Civic Center project.
NOW THEREFORE, Declarant and Grantee agree as follows:
Pursuant to the terms, restrictions, or conditions contained in the Declaration, the
Grantee is authorized to develop the Property with a City Hall Office Building,
Community Room, City Council Chambers, Parking Structure, Library addition and
related improvements, including an approximately 600 square foot Food Service Facility
which will provide deli food service and limited catering for employees, library visitors,
special event visitors and receptions ("Project'), which is consistent with the use
restriction in the Declaration that no portion of the Property is used for retail,
commercial, quasi -retail or quasi -commercial facilities that materially compete with the
retail and commercial facilities in the Newport Center development or is otherwise
improved, developed, used, operated, or maintained with any facilities or for any
purpose whatsoever except as set forth above unless expressly approved by Declarant,
which approval may be granted or withheld by Declarant in its sole discretion.
Therefore, the Grantee is authorized to take any and all actions necessary to develop,
alter, and maintain the Project, including, but not limited to, entering into leases and
financing agreements, including leasing the Property to the Newport Beach Public
Facilities Corporation in connection with the refinancing of the Library and the financing
of the Project. The loan -to -value ratio set forth in Section 2.8 of the Declaration is
hereby waived in connection with such financing. The Grantee shall not materially
expand or alter the use or square footage of the Food Service Facility unless expressly
approved by the Declarant, which approval may be granted or withheld by Declarant in
its sole discretion.
IN WITNESS WHEREOF, this instrument is duly executed this 29th day of October
2010.
DECLARANT:
GRANTEE:
THE IRVINE COMPANY LLC, CITY OF NEWPORT BEACH
A Delaware. Limited Liability Company A California Municipal Corporation
By: By:
Daniell H. Youn
Its: Executive Vice President Its, Mayor
By:
Yrigid Its: AssistD n t Secretad `� GoU�tietPac�
rY 5,9�e
WHEREAS, The Declaration places certain limitations on the Property and
requires Grantee to obtain Declarant's consent for certain improvements.
WHEREAS, Declarant and Grantee both desire to confirm that the Declaration
allows the development of the Civic Center project.
NOW THEREFORE, Declarant and Grantee agree as follows:
Pursuant to the terms, restrictions, or conditions contained in the Declaration, the
Grantee is authorized to develop the Property with a City Hall Office Building,
Community Room, City Council Chambers, Parking Structure, Library addition and
related improvements, including an approximately 600 square foot Food Service Facility
which will provide deli food service and limited catering for employees, library visitors,
special event visitors and receptions ("Project"), which is consistent with the use
restriction in the Declaration that no portion of the Property is used for retail,
commercial, quasi -retail or quasi -commercial facilities that materially compete with the
retail and commercial facilities in the Newport Center development or is otherwise
improved, developed, used, operated, or maintained with any facilities or for any
purpose whatsoever except as set forth above unless expressly approved by Declarant,
which approval may be granted or withheld by Declarant in its sole discretion.
Therefore, the Grantee is authorized to take any and all actions necessary to develop,
alter, and maintain the Project, including, but not limited to, entering into leases and
financing agreements, including leasing the Property to the Newport Beach Public
Facilities Corporation in connection with the refinancing of the Library and the financing
of the Project. The loan -to -value ratio set forth in Section 2.8 of the Declaration is
hereby waived in connection with such financing. The Grantee shall not materially
expand or alter the use or square footage of the Food Service Facility unless expressly
approved by the Declarant, which approval may be granted or withheld by Declarant in
its sole discretion.
IN WITNESS WHEREOF, this instrument is duly executed this day of,
20_0_.
DECLARANT:
THE IRVINE COMPANY LLC,
A Delaware Limited Liability Company
L_
GRANTEE:
CITY OF NEWPORT BEACH
A California Municipal Corporation
By:
te'p3?L
d
Its: Executive Vice President Its: Mayor ,000o \
.24ne
MA
Its: Assistant Secretary
APPROVED AS TO FORM:
OFFICE,OF THE CITY ATTORNEY
David R. Hunt
City Attorney
City of Newport Beach
ATTEST:
Am
Leilani Brown
City Glem
City of Newport Beach
STATE OF CALIFORNIA
COUNTY OF ORANGE
On <Z�L�-, 20 i' � , before me, LI Lt, 4,Kl �IU F4' /1i
the undersigned Notary Public in and for said County and State, personally appeared
�' b, c (J i.( who proved to me on the basis of satisfactory
evidence to be the perso (,,whose name.} is/*e subscribed to the within instrument
and acknowledged to me that he/sKQ/tho executed the same in his* /heir authorized
capacity('is), and that by his/WjthWr signature* on the instrument the persoeJ, or
the entity upon behalf of which the personP) 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. !�
Notary Public
L. WASHINGTON
STATE OF CALIFORNIA Commission 1640150
Notary Public - California.
orange county
COUNTY OF ORANGE M Comm. Ex Tres Mar 12 201.
On 20 before me,
the undersigned Notary Public in and for said County and State, 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/shelthey 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.
Notary Public
STATE OF CALIFORNIA
COUNTY OF ORANGE
On November 1, 2010, before me, Joni Grossman, the undersigned Notary Public in
and for said County and State, personally appeared Daniel H. Young who proved to me
on the basis of satisfactory evidence to be the persoqnfs� wh se name Is are
subscribed to the within instrument and acknowledged to me tha lie he/they executed
the same in his er/their authorized capacity ij, and that by i her/their signature}—
on the instrument the person.Fs°f, or the entity upon behalf of w ich the persopK 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.
Notary Public
JONI GROSSMAN
STATE OF CALIFORNIA commission # 1736093
r Notary Public - California
Orange County
COUNTY OF ORANGE MyCor=EVk sApr30,2011
On November 1, 2010, before me, Joni Grossman, the undersigned Notary Public in
and for said. County and State, personally appeared Brigid D.` McMahon who proved to
me on the basis of satisfactory evidence to be the person'" whose name, i are
subscribed to the Ithin instrument and acknowledged to me that h s they executed
the same in the
a /their authorized capacityQW, and that by hisa their signaturo o—
on the instrunien the person,; or the entity upon behalf of which the persoDWacted,
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.
Notary Public
wJONI. CsRO MAN
Commission # 1736093
Notary Public - California
Orange County
MyComm 6cpkesApr30,2011
Jcsc�t ThisDocument was electronically recorded by
,yl� . �� a`. 'C al -6y Fidelity National Major Accounts
y � f 3�Onar LL ��_y-
RECORDED AT REQUEST OF,
AND WHEN RECORDED MAIL TO:
City of Newport Beach
Attn: City Clerk
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658-8915
WITH A CONFORMED COPY TO:
The Irvine Company LLC
Attn: Legal Department
550 Newport Center Drive
Newport Beach, CCA92660
]
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
II �IIIII III If'I IIIII II II III I!I 11 II NO FEE
2010000634195 04:30pm 11/24/10
66 406 A17 6
0.00 0.00 0.00 0.00 15.00 0.00 0.00 0.00
(SPACE ABOVE THIS LINE FOR
M
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E) M
This document is4xempt igm
filing fees per Govt. Code §
6103, recording fees per Govt.
Code § 27383 and is exempt
from Document Transfer Tax
per Rev. & Taxation Code §
11922
Amendment of Declaration of Special Land Use Restrictions, Right of First
Refusal, Mortgage Lien and Option to Repurchase recorded on May 8, 1992 as
Instrument No. 92-304757
THIS FIRST AMENDMENT TO DECLARATION OF SPECIAL LAND USE
RESTRICTIONS, RIGHT AT FIRST REFUSAL, MORTGATE LIEN AND OPTION TO
REPURCHASE ("Amendment") is made as of !irave�L / , 2010 and shall be effective
as of /, 2010 ("Amendment Effective Date") by and between The Irvine
Company LLC, A Delaware Limited Liability Company ("Declarant") and the City of
Newport Beach, a California Municipal Corporation ("Grantee").
RECITALS
WHEREAS, Declarant and Grantee entered into a Declaration of Special Land
Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase
("Existing Declaration") recorded May 8, 1992 as Orange County Document No. 92-
304757 with respect to those certain properties identified as: (1) the southwesterly one-
half of Parcel 2 as shown on Parcel Map No. 90-361, recorded in Book 270, Pages 15
to 18, inclusive, of Parcel Maps, Records of Orange County; and (2) the northwesterly
WHEREAS, Exhibit 2 to the Existing Declaration places certain limitations on the
development of the Property.
WHEREAS, Declarant and Grantee both desire to amend Exhibit 2 to the Existing
Declaration to allow the development of the Civic Center project.
I
NOW THEREFORE, Declarant and Grantee hereby amend the Existing Declaration
as follows:
1. Amendment to Exhibit B. Exhibit B to the Existing Declaration is hereby
amended as follows:
Maximum Gross Floor Area: 74,000 square feet
2. Continuing Effect. As amended hereby, the Declaration shall continue in full
force and effect following the Amendment Effective Date. If there is any inconsistency between
the provisions of this Amendment and the provisions of the Declaration, the provisions of this
Amendment shall supercede and control.
IN WITNESS WHEREOF, this instrument is duly executed this 29"' day of October, 2010.
DECLARANT: GRANTEE:
THE IRVINE COMPANY LLC, CITY OF NEWPORT BEACH
A Delaware Limited Liability Company A California Municipal Corporation
By: By:
Daniel H. Youn
Its: Executive Vice esident Its: Moor
Be
Y.
[Brigid . McMahon
Its: Assistant Secretary
APPROVED AS TO FORM:
E OF TH CITY ATTORNEY
David R. Hunt
City Attorney
City of Newport Beach .kn Gounte►part
Signed
ATTEST:
Leiiani Brown
City Clerk
one-half of Parcel 2 as shown on Parcel Map No. 90-361, recorded in Book 270, Pages
15 to 18, inclusive, of Parcel Maps, Records of Orange County (collectively, "Parcel 2,
Parcel Map No. 90-361" or "Property").
WHEREAS, Grantee desires to construct a new Civic Center project on or
adjacent to the Property pursuant to Newport Beach Charter Section 425.
WHEREAS, Exhibit 2 to the Existing Declaration places certain limitations on the
development of the Property.
WHEREAS, Declarant and Grantee both desire to amend Exhibit 2 to the
Existing Declaration to allow the development of the Civic Center project.
NOW THEREFORE, Declarant and Grantee hereby amend the Existing
Declaration as follows:
1. Amendment to Exhibit B. Exhibit B to the Existing Declaration is hereby
amended as follows:
Maximum Gross Floor Area: 74,000 square feet
2. Continuing Effect. As amended hereby, the Declaration shall continue in
full force and effect following the Amendment Effective Date. If there is any
inconsistency between the provisions of this Amendment and the provisions of the
Declaration, the provisions of this Amendment shall supercede and control.
IN WITNESS WHEREOF, this instrument is duly executed this Z, day of
20_LO .
DECLARANT:
THE IRVINE COMPANY LLC,
A Delaware Limited Liability Company
la
Its: Executive Vice President
By:
Its: Assistant Secretary
GRANTEE:
CITY OF NEWPORT BEACH
A California Munici al Corporation
By:
Its: Mayor
APPROVED AS TO FORM:
OFF OF TAE CITY ATTORNEY
David R. Hunt
City Attorney
City of Newport Beach
ATTEST:
/AA,�rkn
Leilani Brown
City Clerk
City of Newport Beach
STATE OF CALIFORNIA
COUNTY OF ORANGE
On ND VCma 20_L(�_ , before me, LIL-t
the undersigned rotary Public in and for said County and State, personally appeared
J� • (I who proved to me on the basis of satisfactory
evidence to be the person(V whose name(6) is/aV,subscribed to the within instrument
and acknowledged to me that he/s eltfy executed the same in his/lr/tf�i( authorized
capacity(i� and that by his/1 r/tt iir signature(q� on the instrument the person(, or
the entity upon behalf of which the persor!Macted, executed the instrument.
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.
Notary Public
L. VJASHINGTON
STATE OF CALIFORNIA Commission * MOM
Notary Public - California z
Orange County
COUNTY OF ORANGE M Comm. Ex Tres Mar 12.2013
On 20 , before me, ,
the undersigned Notary Public in and for said County and State, 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.
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.
Notary Public
STATE OF CALIFORNIA
COUNTY OF ORANGE :
On November 1, 2010 , before me, Joni Grossman, the undersigned Notary Public in and for
said County and State, personally appeared Daniel H. Young who proved to me on the basis of
satisfactory evidence to be the persoaK whose namei;s`j is re subscribed to the within
instrument and acknowledged to me that Fie he/they executed the same in his er/their
authorized capacity and that by his er/their signaturej4 on the instrument the person(<
or the entity upon behalf of which the personj'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.
Notary Public "�2
CJONI GROSS=
ommission # 1736093
-� Notary Public - California z
Orange County
STATE OF CALIFORNIA I nrtycorrx,, E,espar30,20111.
COUNTY OF ORANGE
On November 1, 2010, before me, Joni Grossman, the undersigned Notary Public in and for
said County and State, personally appeared Brigid D. McMahon who proved to me on the basis
of satisfactory evidence to be the persoy whose name is are subscribed to th within
instrument and acknowledged to me tha h sh /they executed the same in hi /h /their
authorized capacity and that by hi he their signature.W on the instrument the persor(aj;
or the entity upon behalf of which the persor7 -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.
Notary Public
JONI GROSSMAN
Commisslon # 1-7360513
"Notary Public - GailfornFo
Orange County
My�orflm. Fr��+esAPr30.2011 t
RECORDING REQUESTED BY:
FIDELITY NATIONAL TITLE INSURANCE CO.
WHEN RECORDED MAIL TO:
.City of Newport Beach
Attn: City Clerk
3300 Newport Beach Blvd.
P.O. Box 1768
Newport Beach, CA 92658-8915
This Document was electronically recorded by
Fidelity National Major Accounts
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
�� IIII 11111111111111 Jill 11111IIIII 111 Jill II NO FEE
2010000634194 04:30prn,11124/10
66 406 N12 6
20
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0.00 0.00 0.00 0.00 15.00 0.00 0.00
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AGREEMENT OF MUTUAL UNDERSTANDING REGARDING AMENDED AND RESTATED GRANT DEED (PARCEL
3, PARCEL MAP 90-361-NEWPORT VILLAGE) RECORDED ON JUNE 2, 2008 AS INSTRUMENT NO.2008000262433
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(ADDITIONAL RECORDING FEE APPLIES)
Reclading Requestod
,Fidelity Natio-nal Title
RECORDED AT REQUEST OF,
AND WHEN RECORDED MAIL TO:
City of Newport Beach
Attn: City Clerk
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658-8915
WITH A CONFORMED COPY TO:
The Irvine Company LLC
Attn: Legal Department
550 Newport Center Drive
Newport Beach, CA 92660
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This document is exempt from
filing fees per Govt. Code §
6103, recording fees per Govt.
Code § 27383 and is exempt
from Document Transfer Tax
per Rev. & Taxation Code §
11922
okMutual Understanding Regarding Amended and Restated Grant Deed (Parcel 3,
Parcel Map 90-361-Newport Village) recorded on June 2, 2008 as Instrument No,
2008000262433
WHEREAS, The Irvine Company LLC, A Delaware Limited Liability Company
("Grantor") previously granted to the City of Newport Beach, a California Municipal
Corporation ("Grantee') via a Grant Deed recorded November 28, 2007 as Orange
County Document No. 2007000704013 ("Grant Deed") that certain property identified as
Parcel 3 of Parcel Map 90-361, in the City of Newport Beach, County of Orange, State
of California, as per Map filed in Book 270, Pages 15 to 18, inclusive, of Parcels, in the
Office of the County Recorded of said County ("Property").
WHEREAS, Grantee desires to construct a new Civic Center project on the
Property pursuant to Newport Beach Charter Section 425.
WHEREAS, The Grant Deed places certain limitations on the Property and
requires Grantee to obtain Grantor's consent for certain improvements.
NOW THEREFORE, Grantor and Grantee agree as follows:
Pursuant to the terms, restrictions, and conditions contained in the Grant Deed,
the Grantee is authorized to develop the Property with a City Hall Office Building,
Community Room, City Council Chambers, Parking Structure, Library addition and
related improvements, including an approximately 600 square foot Food Service Facility
which will provide deli food service and limited catering for employees, library visitors,
special event visitors and receptions ("Project"), which is consistent with the use
restriction in Grant Deed Section i(a) that the Property may be used by the Grantee only
for open space -and public facilities uses. Therefore, Grantee is authorized to take any
and all actions necessary to develop, alter, and maintain the Project, including, but not
limited to, entering into leases and financing agreements.
IN WITNESS WHEREOF, this instrument is duly executed this 290 day of October,
2010.
GRANTOR:
THE IRViNE COMPANY LLC,
A Delaware Limited Liability Company
By:
Daniel H. Young
Its: Executive Vice President
By:
rigid EY McMahon
Its: Assistant Secretary
GRANTEE:
CITY OF NEWPORT BEACH
A California Municipal Corporation
its: Mayor
APPROVED AS TO FORM:
David R. Hunt
City Attorney
ATTEST:
Leilani Brown
City. Clerk
City of Newport Beach
lz;d
WHEREAS, Grantor and Grantee both desire to confirm that the Grant Deed
allows the development of the Civic Center project.
NOW THEREFORE, Grantor and Grantee agree as follows:
Pursuant to the terms, restrictions, and conditions contained in the Grant Deed,
the Grantee is authorized to develop the Property with a City Hall Office Building,
Community Room, City Council Chambers, Parking Structure, Library addition and
related improvements, including an approximately 600 square foot Food Service Facility
which will provide deli food service and limited catering for employees, library visitors,
special event visitors and receptions ("Project"), which is consistent with the use
restriction in Grant Deed Section i(a) that the Property may be used by the Grantee only
for open space=and public facilities uses. Therefore, Grantee is authorized to take any
and all actions necessary to develop, alter, and maintain the Project, including, but not
limited to, entering into leases and financing agreements.
IN WITNESS WHEREOF, this instrument is duly executed this aday ofdiC';
20 I
GRANTOR: GRANTEE:
THE IRVINE COMPANY LLC,
A Delaware Limited Liability Company
By:
Its: Executive Vice President
10
Its: Assistant Secretary
CITY OF NEWPORT BEACH
A California Municipal Corporation
By:
Its: Mayor
APPROVED AS TO FORM:
OPF16E OF E CITY ATTORNEY
David R. Hunt
City Attorney
City of Newport Beach
GQu�tiecpa�
5`g�ed �n
ATTEST:
STATE OF CALIFORNIA
COUNTY OF ORANGE
On 20(() , before me, Mr 44) N67yh ) ,
the underst�ned Notary Public in and for said County and State, personally appeared
�J rj who proved to me on the basis of satisfactory
evidence to be the pe on(�) whose nameM is/W.Q subscribed to the within instrument
and acknowledged to me that he/WeAFV-�,y executed the same in his/I60nir authorized
capacity(IM), and that by his/h#rJtWr signature(*, on the instrument the person, or
the entity upon behalf of which the personKacted, 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
-Not&y Public
L. WASHINGTON
STATE OF CALIFORNIA Commission 184015o z
Notary Public - California
Orange County
COUNTY OF ORANGE M Comm, Expires Mar 12, 2013
On 20 , before me, ,
the undersigned Notary Public in and for said County and State, 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.
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.
Notary Public
STATE OF CALIFORNIA
COUNTY OF ORANGE
On November 1, 2010, before me, Joni Grossman, the undersigned Notary Public in
and for said County and State, personally appeared Daniel H. Young who proved to me
on the basis of satisfactory evidence to be the persowhose named is re
ns
subscribed to the within instrument and acknowledged to me that he she/they executed
the same in(his her/their authorized capacity and that by hi her/their signature
on the instrument the personK,, or the'entity upon behalf of which the personjs� 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.
Notary Public
JONI GROSSMAN
Commission # 1736093
STATE OF CALIFORNIA Notary Public - California r
orange County
COUNTY OF ORANGE ,rlycorr,n, - - - - - -,so-
On November 1, 2010, before me, Joni Grossman, the undersigned Notary Public in
and for said County and State, personally appeared Brigid D. McMahon who proved to
me on the basis of satisfactory evidence to be the persons whose namare
subscribed to the within instrument and acknowledged to me that h sh they executed
the same in hi her heir authorized capacity , and that by hi he ('
heir signature
on the instrumen the person (�j; or the entity Upon. behalf of which e person '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.
Notary Public
JONI cRosst4la`'`
Commission # 1736093
'Notary Public - California
`• orange County
MVComn:.6LtApr30, 2011
��
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92—�TJ; g�
�Vhsn lscorded hail To: Pp' i3'
fief A�ER�iiRF 1 os
THE LRVINE COMPANY other
550 Newport Center Drive sm MAY 8IM TOW
Newport beach, CA 92660 AY Ot CW Rp00�d- II—. F .r -
Q'"p�'Cdb" HE
Attention: Lee Milligan DM_-6
Space above this line for Recorder's use
DECLARATION OF SFECIAL LAND USE RESTRICTIONS, RIGHT
OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE
• TABiA OF CONTENTS
DECLARATION OF SPECIAL LAND USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL. MORTGAGE LIEN AID
OPTION TO REPURCHASE
ARTICLE 1.
GENERAL PPOVISIONS. . . . . . . . . . . . . . . . . . . .
1
1.1
Grantee's Representations and Warranties. . . . . . . .
1
1.2
Statement of Declarant's General Purposes. . . . . . . .
2
1.3
Definitions . . . . . . . . . . . . . . . . . . . . . . .
2
(a) 'Benefitted Property' . . . . . . . . . . . . . .
2
(b) 'Center' . . . . . . . . . . . . . . . . . . . . .
2
(c) 'Declarant' . . . . . . . . . . . . . . . . . . .
2
(d) 'Effective Date" . . . . . . . . . . . . . . . . .
2
(a) 'Final Map' . . . . . . . . . . . . . . . . . . .
2
(f) 'Grantee' . . . . . . . . . . . . . . . . . . .
2
(g) The 'Grose Floor Area;. . . . . . . . . . . . . .
3
ARTICLE 2.
SPECIFIC RESTRICTIONS . . . . . . . . . . . . . . . . . . . .
3
2.1
Specific Facilities . . . . . . . . . . . . . . . . . . .
3
(a) Improvement and Continued Use. . . . . . . . . . .
3
(b) Construction. . . . . . . . . . . . . . . . .
3
(c) Commencement and Completion. . . . . . . . . . . .
3
(d) Grading . . . . . . . . . . . . . . . . . . . . . .
4
(e) Utilities, Streets and Public Improvements. . . .
4
(f) Landscaping . . . . . . . . . . . . . . . . . . . .
4
(g) Alterations and Additions . . . . . . . . . . . . .
4
2.2
Declarant's Approvals . . . . . . . . . . . . . . . . . .
4
(a) Approvals Required . . . . . . . . . . . . . . . .
4
(b) Time for Approvals . . . . . . . . . . . . . . . .
4
(c) As Built Plans . . . . . . . . . . . . . . . . . .
5
2.3
Grantee's Cost . . . . . . . . . . . . . . . . . . . . .
5
2.4
Fulfillment of Map Conditions . . . . . . . . . . . . . .
5
2.5
Compliance With Law. . . . . . . . . . . . . . . . . .
5
(a) Grantee to Comply . . . . . . . . . . . . . . . . .
5
(b) Approvals of Applications . . . . . . . . . . . . .
5
2.6
Bonds . . . . . . . . . . . . . . . . . . . . . . . . . .
6
2.7
Transfers . . . . . . . . . . . . . . . . . . . . . . . .
6
(a) Transfers Prohibited . . . . . . . . . . . . . . .
6
(b) Permitted Transfers. . . . . . . . . . . . . .
6
2.8
Subordination or Consent to Transfer for Public
Financing . . . . . . . . . . . . . . . . . . . . . . .
6
(a) Copy of Loan Documents . . . . . . . . . . . . . .
7
(b) Title Report . . . . . . . . . . . . . . . . . . .
7
(c) Disbursement Instructions . . . . . . . . . . . . .
7
(d) Request for Notice of Default. . . . . . . . . . .
7
2.9
Costs of Regional Development . . . . . . . . . . . . . .
7
2.10 MacArthur Boulevard Dedication and Maintenance. . . . .
7
ARTICLE 3,
GENERAL RESTRICTIONS . . . . . . . . . . . . . . . . . . . . .
8
3.1
Unapproved Development or Use . . . . . . . . . . . . . .
8
3.2
General Maintenance . . . . . . . . . . . . . . . . . . .
8
3.3
Restoration . . . . . . . . . . . . . . . . . . . . . . .
8
3.4
Drainage. . . . . . . . . . . . . . . . . . . . . . .
8
3.5
Signs . . . . . . . . . . . . . . . . . . . . . . . . . .
8
3.6
Prohibited Operations and Uses. . . . . . . . . .
B
3.7
No Subdivision . . . . . . . . . . . . . . . . . . . . .
9
3.8
Zoning . . . . . . . . . . . . . . . . . . . . . . . . .
9
3.9
Indemnity . . . . . . . . . . . . . . . . . . . . . . . .
10
ARTICLE 4.
DECLARANT'S RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . .
10
ARTICLE 5.
REMEDIES. . . . . . . . . . . . . . .
11
5.1
Default and General Remedies. . . . . . . . . . . .
11
(a) Damages . . . . . . . . . . . . . . . . . . . . . .
11
(b) Equity . . . . . . . . . . . . . . . . . . . . . .
11
5.2
Inspection . . . . . . . . . . . . . . . . . . . . . . .
11
5.3
Option to Repurchase the Land . . . . . . . . . . . . . .
11
(a) Grant of Option . . . . . . . . . . . . . . . . . .
11
(b) Exercise of Repurchase Option. . . . . . . . . . .
12
(c) Expiration and Quitclaim . . . . . . . . . . . . .
12
N � �
4
(d) Repurchass Prig . . . . . . . . . . . . . . . . .
12
(a) Repurchase Escrow Terms . . . . . . . . . . . . . .
13
(£) Irrevocability. . . . . . . . . . . . . . . .
13
(g) Warranties. Plans and Specifications. . . . . . .
13
5.4
Arbitration Procedure . . . . . . . . . . . . . . . . . .
1A
5.5
Waiver. . . . . . . . . . . . . . . . . . . . . . .
14
5.6
Costs of Enforcement . . . . . . . . . . . . . . . . . .
15
5.7
Rights of Lenders . . . . . . . . . . . . . . . . . . . .
15
5.8
Advances . . . . . . . . . . . . . . . . . . . . . . . .
15
ARTICLE 6. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . .
15
6.1
Unavoidable Delay . . . . . . . . . . . . . . . . . . . .
15
6.2
Continuous Operations. . . . . . . . . . . . . . .
16
6.3
Covenants to Run With the Lend; Term. . . . . . . . . .
16
(a) Covenants to Run With the Land. . . . . . . . . .
16
(b) Term. . . . . . . . . . . . . . . . . . . .
16
6.4
Assignment by Declarant . . . . . . . . . . . . . . . . .
16
6.5
Amendments . . . . . . . . . . . . . . . . . . . . . . .
16
6.6
Release. . . . . . . . . . . . . . . . . . . . . .
16
(a) Release by Declarant . . . . . . . . . . . . . . .
16
(b) Not Applicable to Declarant. . . . . . . . . . . .
16
6.7
Notice . . . . . . . . . . . . . . . . . . . . . . . .
17
6.8
Governing Law . . . . . . . . . . . . . . . . . . . . . .
17
6.9
Severability. . . . . . . . . . . . . . . . . . . . . .
17
6.10 Captious . . . . . . . . . . . . . . . . . . . . . . . .
17
6.11 Entire Agreement . . . . . . . . . . . . . . . . . . . .
17
6.12 Gender and Number . . . . . . . . . . . . . . . . . . . .
17
6.13 Time of the Essence . . . . . . . . . . . . . . . . . . .
17
ii
P -
TABLE OF MMISITS
Propem Dascriptian.................... 1
Specific Facilities..................... 2
Subordination Agreement ................. 3
rl
iii
DECLARATION OF SPECIAL LAND USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND
OPTION TO REPURCHASE
THIS DECLARATION ("Decleration") is made as of March 11, 1992. by and
between THE IRVINE COMPANY, a Michigan corporation ("Declarant"), and the CITY
OF NEWPORT BEACH, a California municipal corporation ("Grantee'), with reference
to the following facts:
A. Grantee and Declarant have entered into an Exchange Agreement and
Escrow Instructions (the "Exchange Agreement") by which Grantee is acquiring from
Declarant the following described real property (the 'Exchange Land') situated
In the City of Newport Beach, County of Orange. State of California:
The southwesterly one-half of Parcel 2 as shown on Parcel Nap No.
90-361, recorded in Book 270 , Pages 15 to 13 , inclusive, of
Parcel Maps, Records of said county.
B. Grantee and Declarant have also entered into a Transfer Agreement and
Escrow Instructions by which Grantee is acquiring from Declarant real property
adjacent to and contiguous with the Exchange Land which real property is situated
in the City of Newport Beach, County of Orange, State of California ('Transfer
Land") and is described as follows:
The northeasterly one-half of Parcel 2 as shown on Parcel Map No.
90-361, recorded in Book 270, Pages 15 to 18 , inclusive, of
Parcel Naps, Records of said County.
C_ In connection with such acquisition, Grantee has represented to
Declarant that it has acquired the Exchange Land and the Transfer Land as a
single parcel described as all of Parcel 2 as shown on side Parcel Map No. 90-361
(the "Land") to improve and use the Land in accordance with the covenants,
conditions, rights, restrictions and limitations as particularly set forth herein
(collectively referred to as the "Restrictions'), and Declarant is granting the
Land to Grantee on the basis of Grantee's continuing compliance with such
Restrictions.
NOW, THEREFORE, in consideration of the foregoing (including the conveyance
of the Land by Declarant to Grantee), and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1. GENERAL PROVISIONS.
1.1 Grantee's Representations and Warranties. GRANTEE REPRESENTS
AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SAME
IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND FOR THE PARTICULAR USES
AND PURPOSES AUTHORIZED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT:
(a) GRANTEE IS EXPERIENCED AND KNOWLEDGEABLE IN THE CONSTRUCTION AND OPERATION
OF PUBLIC FACILITIES, AND DECLARANT AND GRANTEE DESIRE TO PROVIDE A PUBLIC
LIBRARY TO SERVE NEWPORT BEACH; (b) DECLARANT HAS CONVEYED AND GRANTEE HAS
ACCEPTED FEE TITLE TO THE LAND FOR USE 3Y GRANTEE IN ACCORDANCE WITH THE
PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DECLARANT AND GRANTEE DO
NOT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE NOT
OTHERWISE PERMITTED HEREIN; (d) THE LIKELIHOOD THAT ANY BREACH WILL OCCUR AND
THAT DECLARANT WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR
NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (a)
1;ITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOSES AND EXPECTATIONS OF
DECLARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE
DEFEATED; (f) BUT FOR CONVEYANCE OF THE LAND, GRANTEE WOULD BE REQUIRED TO PAY
SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE
ESTABLISHED THE FAIR MARKET VALUE OF THE LAND FOR PURPOSES OF THE OPTION TO
REPURCHASE BASED UPON PRESENT ESTIMATES AND HAVE APPLIED ADJUSTMENT FACTORS TO
TAKE INTO ACCOUNT SUBSEQUENT CHANGES IN VALUES; (h) DECLARANT AND GRANTEE
ACKNOWLEDGE T;IAT MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR
LESSER THAN THE VALUE ESTABLISHED FOR. PURPOSES OF THE OPTION TO REPURCHASE AND
HEREBY ASSUME THAT RISK.
` BUT FOR SUCH REPRESENTATIONS BY G ANM- . AND GRANTEE'S UNIQUE SPILLS,
EXPERTISE AND SUITABILITY IN CONSTRUCTION AND OPERATION OF SHE SPECIFIC
FACILITIES DESCRIBED BELOW, DECLARANT WOULD NOT HAVE CONVEYED THE LAND TO
W&ANTEE, BLIP WOULD HAVE RETAINED THE BENEFITS OF OWNERSHIP, INCIDDING FUTURE
APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES,
DECIARA*Tf HAS CONVEYED THE LAND TO GRANTEE.
1.2 Statement of Declarant's General Purposes. Declarant is the
owner of a large and unique landholding, part of which has been developed as a
wester planned business, recreational, hotel, residential and retail Center,
described below, in the City of Newport Beach (the "City'). Among the
distinguishing characteristics of this masterplanned Center are the clear
delineation of use areas throughout the Center, together with the Itrict exercise
of architectural and occupancy controls over individual construction projects,
so as to ensure the harmonious growth and development of the Center and the
maximization of the value of Declarant's developed and undeveloped landholdings
as well as the Land 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 land) that Declarant from time to time elects to convey
to third parties. Should the development limitations imposed by Declarant be
exceeded, the roadways and the infrastructure improvements servicing the Center
and its environs could be overutilized, resulting in undesirable traffic
congestion and imbalances within the Center. Such conditions could in turn
adversely affect the ability of Declarant to develop, own, operate, lease or sell
its landoonings, including without limitation the "Benefitted Property" as
defined below.
It is to promote these purposes that this Declaration is made, and
it is the intention of the parties that it will be in furtherance of said
purposes that the Restrictions, and all other declarations supplemental hereto,
will be understood and construed.
1.3 Definitions. As used herein, the following terms shall have the
meanings given to them below:
(a) "Benefitted Property" shall mean the real property to
which the benefit of the provisions of this Declaration inures, and as of the
execution of this Declaration shall mean the real property described on E3WlBIT
1 attached hereto. Declarant shall have the right by a duly recorded amendment
hereto executed solely by Declarant to substitute for or add to the Benefitted
Property any real property owned by Declarant in the County of Orange.
California. The Benefitted Property shall be the dominant tenement and the Land
shall be the servient tenement for purposes of this Declaration. r
(b) "Center" shall mean the office, hotel, recreational,
retail and residential and other use arts commonly known as Newport Center
(including the shopping center known as Fashion Island) and generally lying
within the area enclosed by Pacific Coast Highway, MacArthur Boulevard, San
Joaquin Hills Road and Jamboree Road.
(c) "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) "Effective Date' of this Declaration shall be the date
this Declaration is recorded in the Official Records of Orange County,
California.
(e) "Final Map' shall mean the final map covering the Land
described as Parcel Map No. 90-361 as shown on a map recorded in Book 270 , Pages
15 to 18 , inclusive, of Parcel Maps, Records of orange County, California.
(f) "Grantee" shall mean the Grantee identified above and each
and every suc-essor, assignee, owner, lessee, licensee or other occupant of the
Land, the Specific Facilities, as defined below, 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 Land or Specific Facilities merely as security for the performanes
of an obligation. Without limiting the generality of the foregoing, if Grantee
leases all or any of its interest in the Land or the Specific Facilities, both
the lessor and lessee under such lease shall be responsible as principals (and
not sureties) for compliance with all the tern and provisions of this
Declaration.
(g) The "Gross Floor Area' shall mean the aggregate number of
square 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 colunu, stairs, elevators, escalators,
or other interior construction or equipment.
ARTICLE 2. SPECIFIC RESTRICTIONS.
2.1 specific Facilities.
(a) Improvement and Continued Use. Grantee represents and
agrees that Grantee shall cause the Land to be improved only with the specific
facilities described on EXHIBIT 2 attached hereto (the "Specific Facilities") and
the other improvements described on EXHIBIT 2 attached hereto (the 'Other
Improvements") and in full accordance with all of the terms of this Declaration,
and that Grantee shall cause the Land, the Specific Facilities and the Other
Improvements to be used nolely for a public library with related parking and no
other use, notwithstanding that other uses may be permitted under applicable
zoning ordinances, and in full accordance with all of the terms of this
Declaration. Use as a public library may include all uses and activities
commonly associated with public libraries now and in the future including any
fora of information storage and retrieval such as video tapes, books, optical and
magnetic disks or other technologies for information storage and retrieval.
Grantee may charge fees, rentals and late charges for loan or use of information
media provided that fees, rentals and charges do not exceed the cost of operation
of the public library facility. No portion or the Land, or any improvements
thereon, or any portion thereof, shall be used for retail, commercial, quasi -
retail or quasi -commercial facilities that materially compete with the retail and
commercial facilities in the Center or otherwise improved, developed, used,
operated or maintained with any facilities or for any purpose whatsoever except
as set forth above unless expressly approved by Declarant, which approval may be
granted or withheld by Declarant in its sole discretion.
(b) Construction. Grantee shall improve the Land with the
construction and installation of the Specific Facilities and the Other
Improvements pursuant to the plans and specifications approved by Declarant
pursuant to the Exchange Agreement and the Transfer Agreement. If Grantee
desires to make any substantial alterations, modifications, additions or changes
to the exterior elements of any plans and specifications previously approved by
Declarant, then Grantee shall submit three copies of any Change Order to
Declarant for its approval prior to obtaining approval of such Change Order by
the governmental entity having jurisdiction and prior to incorporating such
Change Order in the work. Declarant shall approve or disapprove such Change
Order in accordance with the standards and procedures net forth in Section 2.2.
Construction and installation shall be commenced and completed within the time
periods set forth in the Section below entitled "Commencement and Completion."
(c) Commencement and Completion. Subject to extensions of
time for unavoidable delays as provided under the provision entitled "Unavoidable_--
Delay," (i) within the time period specified on EXHIBIT 2 as the "Commencement
Date," measured from and after the Effective Date of this Declaration, Grantee 1
shall have commenced construction of the Specific Facilities on the Land, and
(ii) within the time specified on EXHIBIT 2 as the "Completion Date,' measured
from and after the Effective Date of thin Declaration, Grantee shall have
completed construction of the Specific Facilities on the Land in a manner
consistent with plans and specifications approved in writing by Declarant
pursuant to the Agreement. As used herein, the term 'commenced construction'
shall mean the completion of substantial grading of the land and the pouring of
all or a substantial portion of all of the footings and foundations for the
entire Specific Facilities (which need not necessarily include the ground floor
slabs). Grantee shall be deemed to have "completed construction' of the Specific
Facilities only at such time as Grantee shall have obtained from the appropriate
n
41
govern ental entity or agency a valid Certificate of Use and Occupancy for the
Specific Facilities. Grantee shall cosmiauca and complete construction of the
Other Improvements prior to or contemporaneously with such Specific Facilities.
(d) Grading. Prior to the commencement of any grading or
similar work on the Lsad, Grantee shall submit to Declarant for its approval two
seta of plans and specifications for grading, terracing and filling of the Land
and for construction of other similar improvements in, on or about the Land.
(e) Utilities, Str2gts and Publig jmpIpvements.
(i) Grantee shall cause all necessary facilities for
Water, drainage, sewage, telephone, electricity, cable television, and other
utility service for the Land to be constructed and installed thereon and thereto
in the manner and within the time required by the Exchange Agreement.
(if) In addition to any such facilities constituting a
part of the Specific Facilities or the Other Improvements, Grantee shall
construct and install or pay for construction and installation of all streets,
street lights, driveways, curb cuts, entry ways, sidewalks and the like,
perimeter walls and fences, irrigation and drainage systems, landscaping,
monument, directional or other signs and all like improvements on the Land or
between the Land and adjoining sidewalks or the curbs of adjoining streets, as
required by the Exchange Agreement.
(f) Landscaping. In addition to the landscaping constituting
a part of the Other Improvements, if any, Grantee shall landscape the Land as
necessary to create a first class attractive condition, and in a manner
consistent with the existing landscaping in the Center. Grantee shall submit to
Declarant for its approval two sets of plans and specifications for the
landscaping on the Land.
(g) Alterations and Additions. Grantee shall not sake any
substantial additions, alterations or other modifications ('alterations") of or
to the exterior of the Specific Facilities or any additions, alterations or other
modifications to the visible portions of the Other Improvements or other
improvements from time to time located on the Land, without the prior written
approval of Declarant. Declarant shall approve or disapprove of such
alterations in accordance with the standards and procedures set forth in Section
2.2_ All such alterations shall be subject to the provisions of Article 2
hereof. If Grantee desires to add additional structures to the Land other than
those specified in EXHIBIT 2, then Declarant may impose additional restrictions,
covenants and obligations as a condition to its approval. As used in this
Section, cite 'exterior' of the Specific Facilities shall mean all roofs, outside
walls and facades, structural foundation, entrance doors, windows, outside
walkways, ramps and other accessways, and parking facilities.
2.2 Declarant's Approvals.
(a) Approvals Required. Except with respect to plans and
specifications approved prior to the recordation of this Declaration, no
construction, installation or alteration of the Specific Facilities, the Other
Improvements, or any other landscaping, grading or other improvements in, about
or on the Land shall be commenced unless the concept, plans and specifications
for the exterior elements of such improvements have first received the written
approval of Declarant exercising its sole and absolute discretion. The
improvements constructed shall comply with the plans and specifications approved
by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that
the Specific Facilities, the other Improvements and all other landscaping and
improvements on the Land shall be designed, constructed and installed to provide
for a library with complementary landscapini,and surrounding improvements which,
in the sole discretion of Declarant, are in harmony with the plan and design of
the Center.
(b) Time for Approvals. Declarant shall approve or disapprove
any plans and specifications delivered to Declarant pursuant to this Article as
soon as possible but no longer than thirty (30) working days after receipt of two
copies thereof accompanied by such drawings, site plans, elevations, artists'
conceptions, samples of materials, models, mock-ups, and color samples as from
time to time required by Declarant to review such plans and specifications. If
I
Z�:
approved by Declarant, such approval shall be endorsed on such plans and
specifications and one set of rush documents bearing Declarant's approval shall
be returned to Grantee within such thirty (30) working day period. I£ Declarant
does not approve such plans and specifications, Declarant shall notify Grantee
of its reasons for not approving such plans and specifications and Grantee shall,
within forty five (45) working days after receiving notice of Declarant's
disapproval, submit new plans and specifications for Declarant's approval.
,allure of Declarant to approve or disapprove any plans and specifications within
said thirty (30) working day period and Declarant's continued failure to approve
or disapprove for five (5) working days after Grantee's written notice to
Declarant that Declarant has failed to approve or disapprove as required herein
shall be deemed approval thereof. The approval by Declarant of any plans and
specifications pursuant to this Section shall only represent Declarants'
satisfaction with the plans and specifications as to their general aesthetic
elements. Such approval shall not be deemed to constitute any representation or
warranty by Declarant as to the adequacy or sufficiency of such plans and
specifications for acct-teetural or englueezing design or the feasibility 01"
integrity of any grading, landscaping, improvement or construction contemplated
thereby for any use or purpose. By approving such plans and specifications,
Declarant assumes no liability or responsibility therefor or for any defect in
any grading, landscaping, improvements or construction made pursuant thereto.
(c) As Built Plans. Upon completion of the grading,
landscaping and construction of improvements, Grantee shall submit to Declarant
two as built" sepias and a Certificate of Compliance executed by Grantee's state
licensed consultant (engineer, architect and/or landscape architect). The
Certificate of Compliance shall warrant that the completed grading, landscaping
and construction conforms to the plans and specifications therefor approved by
Declarant.
2.3 Grantee's Cost. The Specific Facilities, the Other
Improvements, and all other landscaping, grading and other improvements made or
constructed in, about or on the Land as contemplated herein shall be constructed,
installed and completed at the sole cost and expense of Grantee and without any
cost, liability or expense to Declarant.
2.4 Fulfillment of Hari Conditions. Certain map conditions dated
November 21, 1991 (copies of which have been provided to Grantee) have been
imposed in connection with the approval and recordation of the Final Map. Except
as otherwise agreed in writing by Declarant and Grantee, Grantee shall comply
with and/or fulfill all of those duties and obligations imposed by such map
conditions on the "Applicant" and/or "Subdivider" attributable to Grantee's use
or development of the Land, all at Grantee's sole cost and expense.
2.5 Compliance With law.
(a) Grantee to Comply. The Specific Facilities, the Other
Improvements and all other landscaping, grading and other improvements made or
constructed in, about or on the Land, and the use thereof, shall comply at all
times with all public laws, ordinances and regulations applicable thereto.
Without limiting the generality of the foregoing, Grantee shall obtain, at its
sole expense, all of its internal and external governmental approvals and permits
and approvals of other governmental authori•-ies with jurisdiction which may from
time to time be required with respect to thc+ performance contemplated under this
Declaration, including, as applicable end vithout limitation, appropriate zoning,
building permits, permits from the Califorria Coastal Commission, operating and
business licenses and permits and the lika. In obtaining such approvals and
permits, Grantee shall prepare, at its sole expense, as necessary and without
limitation, all environmental impact reports, engiaeering studies and the like
as necessary.
(b) Approvalg of Ap2licaLtions. All requests or applications,
together with all supporting documentation, for governmental approvals or permits
which require discretionary action by discretionary bodies of Grantee or on the
part of another governmental agency, shall be submitted to and coordinated and
approved by Declarant prior to placing such approval on the agenda of Grantee's
discretionary body or filing with any other governmental agency. Declarant shall
have a period of forty five (45) days after receipt to disapprove any requests
or applications so submitted by Grantee, and in the event of disapproval shall
specify the reasons therefor. Failure to disapprove within such forty five (45)
e
day periou and Declarant's continued failure to approve or disapprove for fifteen
(15) days after Grantee's written notice that Declarant hati failed to approve or
m
disapprove as required hereunder shall be Beamed approval thereof. Grantee shall
cause copies of all written communications between Grantee and other governmental
agencies processing such requests or applications to be delivered to Declarant
within five (5) business days after such communication has been delivered to the
addressee,
■ /
2.6 Bonds. Before the commencement of any of the work required
under this Article 2, Grantee shall furnish to Declarant true copies of any and
'
all labor and material bonds and faithful performance bonds, if any, required of
Grantee by any governmental agency concerning such work.
Transfers.
es'2.7
(a) Transfers Prohibited. For a period of not less than
twenty-five (25) years after the Effective Date, Grantee shall not sell, lease,
convey, exchange, encumber or otherwise transfer the Land or any portion thereof
or facilities thereon, whether by agreement for sale or in any other manner
r
(herein collectively referred to as a "transfer") without first giving Declarant
at least sixty (60) days' prior written notice of all terms and conditions of
such proposed transfer and the right to either (i) acting reasonably, approve or
disapprove such transfer, (ii) exercise its option to repurchase set forth in
/
Section 5.3 below, or (iii) exercise its right of first refusal set forth in
Article 4 below. Declarant in its sole discretion may within such sixty (60) day
period exercise any such right. Declarant's failure to so act within such sixty
(60) day period shall be deemed to constitute approval of the transfer on the
terms and conditions proposed by Grantee. Any time after the twenty fifth (25th)
anniversary of the Effective Date, Grantee may transfer the Land without
Declarant's approval under this Section and without regard to Declarant's option
to repurchase set forth in Section 5.3 below or Declarant's right of first
refusal set forth in Article 4 below. Grantee hereby acknowledges that it would
be reasonable and appropriate for Declarant to disapprove a transfer and exercise
its option to repurchase and/or right of first refusal if the proposed transferee
is not adequately experienced, knowledgeable and financially capable to own and
operate a public library.
(b) Permitted Transfers. Notwithstanding the foregoing, (1)
Grantee may transfer the Land to any other governmental or quasi -governmental
entity or agency which has as its primary purpose maintenance and operation of
public libraries provided such entity shall be subject to all of the provisions
of this Declaration or (ii) provided Grantee complies with the provisions of
Section 2.8 below, Declarant shall consent to a transfer or encumbrance on the
Land made in connection with an interim or permanent loan or loans or other form
of private or public financing (including without limitation bonds, lease revenue
obligations or certificates of participation) ("public obligations") made in good
faith and for value by an institutional lender or by a public obligation, the
proceeds of which are used only for the costs and expenses of such public
obligations and construction of the Specific Facilities and Other Improvements
or refinancing of a construction financing in an amount not to exceed the amount
outstanding under the construction financing (collectively, "Permitted
Transfers").
2.8 Subordination or Con!:ent to Transfer -for E!L.
Financing. Subject to the following p-ovisLons and the provisions of Section 5.7
hereof, Declarant will either consent to a transfer described in Section 2.7(b)
above, without exercise of Declarants right of first refusal contained in Article
4 and the option to repurchase contained in Section 5.3 (collectively, the
"Enforcement Rights") or Declarant will subordinate its Enforcement Rights to any
encumbrance referred to in Section 2.7(b) immediately above, (which Section
2.7(b) shall continue in effect even after Section 2.7 no longer has any
application to this Declaration, for purposes only of describing the transfers
and encumbrances to which Declarant will continue to consent or subordinate
pursuant to this Declaration) provided that the principal amount of such a loan
or public obligation does not, in combination with other loans and/or public
obligations secured by or affecting the Land and/or the improvements constructed
thereon do not exceed at any time ninety percent (909) of the fair market value
of the Land and any improvemants thereon, valued taking into account the
restrictions contained in this Declaration, and such loans and/or public
obligations are at commercially reasonable interest rates and otherwise contain
cossiercially reasonable terns and conditions. Grantee vill provide Declarant
with appraisal information from a reputable M.A.I. appraiser, frog the Office of
the Assessor of Orange County or from an institutional lender reasonably
satisfactory to Declarant to verify that the tocal. loan -to -value rate does not
exceed ninety percent (90%). No foreclosure, trustee's sale or dead in lieu of
foreclosure with respect to any such permitted encumbrance or exercise of any
remedy to enforce a public obligation shall be deemed an "assigraent" for
,;urposes of Section 2.7, above. Within ten (10) working days after receipt 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 Grantee relating to the Land, Declarant
shall execute, acknowledge and deliver to Grantee a subordination instrument in�
substantially the form attached hereto as EMIBIT 3 or a consent to transfer_
pursuant to issuance of a public obligation:
(a) Copy of Iran Documents. A true and complete copy of all
Instruments executed by Grantee evidencing or securing the issuance of a public
obligation or loan; any lease, mortgage, deed of trust or other interest or right
created to enforce payment of any public obligation which affects the Land must
not secure or relate to any obligation or indebtedness not related to improvement
of the Land, and neither the note, the mortgage, deed of trust, lease nor any
other document or instrument pertaining to a loan or public obligation pertaining
to the land shall contain any provision making it a default thereunder if the
obligor or any other party defaults in any obligation not related to the
acquisition or improvement of the Land;
(b) Title Report. A preliminary title report dated not
earlier than fifteen (15) days prior to submittal showing no title exceptions
other than those in existence at the time Declarant transferred the Land to
Crantee, other utility easements reasonably necessary to serve the Land, and
other matters approved by Declarant;
(c) Disbursement Instructions. A copy of the executed
financing instruments, loan agreement or other agreement pertaining to the
disbursement of funds, which must provide in a manner satisfactory to Declarant
that the funds disbursed thereunder will be used only to purchase or improve and
benefit the Land, or to refinance original financing made for such purpose (in
an amount not to exceed the amount outstanding under the acquisition/construction
loan refinanced); and
(d) Request for Notice of Default. Unless public obligations
are issued which do not involve a standard mortgage lien to secure performance
of a note, a copy of a Request for Notice of Default pursuant to Section 2942b
of the California Civil Code prepared for execution and acknowledgment by
Declarant which, when recorded at Grantee's expense, will entitle Declarant to
the notices prescribed by said Section 2942b. If public obligations are issued,
then the documentation for such financing shall require delivery of a notice of
any default to Declarant prior to exercise of any remedies available upon such
default.
2.9 Costs of Regional Development. Grantee understands that
development of the Specific Facilities on the Land will be accomplished in
conjunction with development of other real property in the Center by Declarant
other private parties. Grantee hereby agre,as to pay its share of infrastructure
improvements made on, adjacent and off the situs of the Land. The infrastructure
improvements shall include the improvements required to complete the items met
forth in ExMIBIT I of the Exchange Agreement.
2.10 MacArthur Boulevard Dedic,ition and Maintenance. Declarant and
City agree that a land area along MacArthur Boulevard shall be designated on the
Final Map to be used exclusively for future expansion of MacArthur Boulevard.
Prior to construction of road and other improvements for such expansion, Grantee
shall not use the area designated for any purpose other than installation and
maintenance of landscaping. Grantee agrees to install landscaping within such
area prior to completion of construction of the Specific Facilities pursuant to
plans and specifications approved by Declarenc in accordance with the standards
and procedures set forth in Section 2.2 and to maintain such area in a first
class condition, order and repair at all times prior to comencement of
construction for expansion of MacArthur Boulevard.
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ARTICLE 3.
3.1 Unapproved Devalopment or Use. Unless expressly approved by
Declarant, which approval may be withheld by Declarant in its sole discretion,
Grantee shall not permit the construction, maintenance, operation or use of any
structure or improvements an the Land not in full compliance with all
requirements of the law, this Declaration and any other covenants, conditions and
restrictions from time to time covering the Land.
3.2 General Maintenance. Prior to the completion of the Specific
Facilities, Grantee shall maintain the Land in a clean, sanitary, orderly and
- attractive condition, free of weeds, debris and pests. Upon completion of the
Specific Facilities an contemplated herein, Grantee shall at all times maintain
the Specific Facilities, the Other Improvements and all other improvements from
time to time located on the Land, including without limitation the landscaped
areas, in first-class condition, order and repair. Grantee shall remove any
graffiti on the Improvements, Other Improvements and all other improvements on
the Land within three (3) business days after delivery of notice by Declarant.
3.3 Restoration. If any building or improvement on the Land, or any
part thereof, or any landscaping installed upon the Land, shall be damaged or
destroyed by fire or other casualty, Grantee shall at its cost and expense either
(i) repair or restore the same according to the original plans thereof or to such
modified plans as shall be previously approved in writing by Declarant as
provided above, or (ii) demolish such damaged or destroyed improvements and leave
the Land (or applicable portion thereof) in a clean and safe condition. Such
repair, restoration or demolition shall be commenced within one hundred twenty
(120) days after the damage or loss occurs and shall be completed with due
diligence but not longer than one (1) year after such work is commenced. The
time periods specified in this subparagraph entitled "Restoration" shall be
extended as provided in the Section of this Declaration entitled "Unavoidable
Delay."
3.4 Drainage_ Grantee shall not drain or discharge water from the
Land (including but not limited to rain water and water from landscape sprinkler
systems located on the Land) on to adjacent land except as follows: Grantee
shall at all times cause the Land to be graded and drained so as to cause the
discharge of all water from the Land onto the public street adjoining the Land
or into an established drainage facility, if any, on or adjacent to the Land
which has been designed to accommodate the water at the rate discharged.
3.5 Signs. Grantee shall not place or use any signs, banners,
balloons, displays of other advertising media in, on, about or above the Land or
on or in any improvements constructed or placed thereon unless it has first
obtained the prior written consent of Declarant as to the number, size, location,
height. illumination, color and design of such signs or other media. Declarant
shall not unreasonably withhold such approval so long as such signs or other
media (a) comply with (i) Declarant's sign program for the Land, the property
surrounding the Land and the Benefitted Property, if any, and (ii) the statutes,
ordinances or regulations of any governmental entity or agency having
jurisdiction thereover including Grantee itself and (b) are in harmony and
conformity with the existing or proposed improvements on or in the vicinity of
the Land and with Declarant's general aesthetic and architectural plans and
criteria for the Land, the Center and the general area in which the Land is
located. Except as provided in this S�,cti!Dn, no sign, banner, balloon, display
or other advertising media which is visible from adjacent land or any public or
private street shall be maintained in, on about or above the Land or on or in any
improvements constructed or placed thereon.
3.6 Prohibited Operations anti Uses. No trailer, temper, bus,
automobile, motorcycle, boat or other vehicle or equipment ("vehicle") shall be
permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 a.m.
No use or operation shall be made, conducted or permitted on ar with respect to
all or any part of the Land or improvements thereon which is obnoxious to or out
of harmony with the residential and/or commercial neighborhood in the vicinity
of the Land. 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:
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(a) Any public or private nui.sanco;
(b) Any vibration, noise, sound or disturbance that is
r
objectionable due to intermittence, heat, frequenxy, shrillness or loudness;
ash
(e) Any direct lighting which is not shielded and confined
within site boundaries;
(d) Any emission of odors, noxious, caustic or corrosive
natter, 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 except for such structures
maintained on the Land during a period permitted for construction or
reconstruction of improvements;
I ��
(g) Any service, maintenance, repair or washing of any vehicle
on the Land at any time except for emergency service necessary to move a vehicle
to a maintenance facility off of the land;
®�
(h) Any raising, breeding or keeping of animals, livestock or
poultry of any kind;
(i) Fuel storage of any type;
(j) Any accumulation of rubbish, trash or garbage. All refuse
containers, air conditioning devices, utility areas, storage areas and machinery
and equipment shall be prohibited upon the Land unless screened from view from
all adjoining lots and public and private streets; and
(k) Any exterior radio antenna, television antenna, "C.S."
antenna, "satellite dish," microwave transmitting or receiving antenna or other
antenna, transmitting or receiving device of any type unless it is screened from
view from all adjoining lots and public and private streets.
Any screen required under this Section shall consist of permanent
landscaping and/or improvements in harmony with other landscaping and
improvements in the Center and approved in writing by Declarant. The provisions
of this Section entitled "Prohibited Operations and Uses" shall not in any way
supersede the other Restrictions.
3.7 No Subdivision. Grantee shall not effect any change or
amendment to the Final Map covering the Land or record any further parcel or
final map of the Land or any portion thereof or facilities thereon pursuant to
the California Subdivision Map Act or any similar law and/or local ordinances
adopted pursuant thereto, or file any tentative maps or applications with respect
thereto with any governmental agency, nor shall Grantee file or record a
condominium plan covering the Land or any portion thereof or any improvements
thereon or any applications with respect thereto nor shall Grantee convey a
portion consisting of less than all of th,s Land, unless expressly approved by
Declarant which approval may be withheld by Declarant in its sole discretion.
3.9 Zoning. Grantee shall rot use or develop or attempt to use or
develop the Land or any portion thereof for any purpose other than those purposes
expressly allowed under the zoning ordinance of ordinances of the governmental
entity having zoning jurisdiction over the :.and. Additionally, Grantee shall not
at any time change or attempt any change in zoning, or obtain or apply for a
conditional use permit, zoning variance or exception or other similar approval
with respect to the use or development of the Land or any portion thereof not
expressly allowed under such existing zoning ordinance, unless expressly approved
by Declarant, which approval may be withheld in its sole discretion.
Notwithstanding the foregoing, Declarant shall not unreasonably withhold its
consent to Grantee's application for such conditional use permit as way be
required for development of the Land with the Specific Facilities. Grantee shall
obtain Declarant's consent prior to placing such application on the agenda of
Grantee's dfscrecionary body or submitting any such application or related
documents to any other governmental agency and thereafter will submit copies of
all such documents to Declarant for its review and information.
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3.9 Indemnity. Declarant and Declarant'a past and present
employees, officers, directors, shareholders, agents and representatives and its
and their respective successors and assigns (collectively, the 'Ivdemnicoes")
shall not be liable for any lose, damage, injury or claim of any kind or
character to any person or property arising from or caused by (a) the
improvement, development, maintenance, use, lease or other conveyanca of the Land
or improvements thereon or any portion thereof or interest therein, including,
rithout limitation, any loss, damage, injury or claim arising from or caused by
or alleged to arise from or be caused by (i) any use of the Land or any part
thereof, (ii) any &fact in the design, construction c£, or material in any
structure or other improvement upon the Land, (III) any defect in or
contamination of soils or in the preparation of soils or in the design and
accomplishment of grading, (including the existence of any contaminantm or
hazardous materials in or on the soil), (iv) any act or omission of Grantee or
any of its agents, employees, licensees, invitees, or contractors, (v) any
accident or casualty on the Land, (vi) any representations by Grantee or any of
its agents or employees, (vii) any violation or alleged violation by Grantee, its
employees or agents of any law now or hereafter enacted, (viii) any slope failure
or subsurface geologic or groundwater condition, (ix) any work of design,
construction, engineering or other work with respect to the Lard, (x) any other
cause whatsoever in connection with Grantee's use of the Land or Grantee's
performances under this Declaration, or any other agreement with Declarant
relating to the Land, or (b) the negligence or willful misconduct of Grantee or
its employees or agents in the development, construction, grading or other work
performed off the Land by Grantee pursuant to this Declaration, or (c) the breach
by Grantee of any of its obligations under this Declaration. Furthermore, as a
material part of the consideration of this Declaration, Grantee hereby waives on
its behalf all claims and demands against Declarant for any such loss, damage,
or injury of Grantee, and agrees to indemnify, defend and hold harmless Declarant
and its property, and the other Indemnitees from all loss, liability, damage,
costs and expenses (including attorneys' fees) arising from or related to any
such loss, damage, injury or claim, whether incurred or made by Grantee or any
other person(s). The foregoing waiver and indemnity shall apply to a claim or
action brought by a private party or by a governmental agency or entity under any
statute or common law now or hereinafter in effect and is intended to apply with
respect to loss, damage, injury or claim arising before or after the lease, sale
or other conveyance of any portion or all of the Land or any improvements
thereon_ With respect to design, construction methods, materials, locations and
other matters for which Declarant has given or will give its approval,
recommendation or other direction, the foregoing waiver, indemnity and agreement
shall apply irrespective of Declarant's approval, recommendation or other
direction. Notwithstanding anything to the contrary above, nothing contained in
this Section shall operate to relieve Declarant or the other Indemnitees from any
loss, damage, injury or claim ultimately established by a court of competent
jurisdiction to have been caused by the sole negligence or willful misconduct of
Declarant or the other Indemnitees. Grantee's covenants in this Section arising
from or related to acts or occurrences during the time of Grantee's ownership
shall survive the lease or other conveyance of all or any part of the Land or
improvements thereon and shall be binding on said Grantee (as well as its
successors to the Land) until such time as action against the Indemnitees is
absolutely barred by an applicable statute of limitations.
ARTICLE 4. DECLARANT'S RIGHT OF FIaST REFUSAL. Except with regard to
"Permitted Transfers" described in the Section above entitled 'Transfers", if,
at any time prior to the twenty fifth (25t1,) anniversary of the Effective Date,
Grantee shall determine to transfer all or any part of the land or the
improvements thereon or any interest there:.n ("Interest"), Grantee shall notify
Declarant of the price and the terms at, which Grantee will be willing to
transfer. If Declarant, within sixty (60) days after receipt of Grantee's
notice, indicates in writing its agreement to purchase said Interest for the
price and on the terms stated in Grantee's notice, then Grantee shall transfer
and convey the Interest to Declarant for the price and on the terms stated in
such notice. If Declarant does not indicate its agreement within such sixty (60)
day period, then Grantee thereafter shall have the right to transfer and convey
the Interest to a third party, but only for a price not less than the price
offered to Declarant and on terms not more favorable than those stated in the
notice. If Grantee does not so transfer and convey the Interest within ono
hundred eighty (180) days after Grantee's notice, then any further transactions
(including a transaction on the same price and terms previously submitted to
10
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Declarant) shall be deemed a new determination by Grantee to transfer and convey
said Interest, and the provisions of this Article shall again be applicable.
ARTICLE 5. RERMIES.
5.1 Default and General Remedies. In the event of any breach,
•-lolation or failure to perforator satisfy any of the Restrictions which has not
been cured within the applicable cure period as not forth below, Declarant at its
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 act forth herein. Unless a cure period is otherwise
specifically designated, a cure period shall cosmance when written notice is
given to Grantee of a violation hereunder and shall end tan (10) Jays thereafter
In the case of a monetary default and thirty (30) days thereafter in the case of
A
nonmonetary default; provided, however, that if a nonmonstary default is not
reasonably susceptible to cure promptly within the thirty (30) day period, then
Grantee shall have a reasonable time to cure the same so long as Grantee has
commenced such cure promptly within the thirty (30) day period and thereafter
diligently prosecutes the cure to completion. To the aaximum 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 in the event Declarant elects to exercise any remedy provided for in
Section 5.3 hereof based upon a particular violation of the Restrictions, such
remedy shall be Declarant's sale and exclusive remedy for such violation of the
Restrictions. Notwithstanding the foregoing, Declarant's remedies for a
violation or breach of Section 3.10 (Indemnity) shall be cumulative with and in
addition to its remedies for other violations or breaches under this Declaration.
(a) Damaees. 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) Eauity. It is recognized that a particular or ongoing
violation by Grantee of one or more of the foregoing Restrictions may cause
Declarant to suffer material injury or damage not compensable in money damages
(including, but not limited to, irreparable effects on the type and quality of
development on and use of the Benefitted Property or portions thereof and/or
frustration of Declarant's purpose for conveyance of the land to Grantee), and
that declarant shall be entitled to bring an action in equity or otherwise for
specific performance to enforce compliance with the Restrictions or an injunction
to enjoin the continuance of any such breach or violation thereof, whether or not
Declarant exercises any other remedy set forth herein.
5.2 Inspection. Declarant or its authorized representatives may
from time to time, at any reasonable hour, enter upon and inspect the Land, site
or any portion thereof or improvements thereon to ascertain compliance with the
Restrictions, but without obligation to do so or liability therefor.
5.3 Oytion to Repurchase the Land. Upon any proposed, attempted or
actual "transfer" in violation of the provisions of Section 2.7 above and, in
addition to the foregoing remedies described in Section 5.). upon any violation
of the Restrictions itemized in Sections 2.La) ("Improvement and Continued Use')
or 2.1(c) ("Commencement and Completion"), Declarant, in its sole option and
discretion, shall be entitled to repurchase the land as provided below.
(Declarant shall not be entitled to repurchase the Land unless a proposed,
attempted or actual transfer in violation of Section 2.7 has been initiated, a
violation of the restrictions in violation of 2.1(s) has occurred or construction
has not been commenced or completed as required by Section 2.1(c).)
(a) Grant of 0prio-p. Grantee hereby grants to Declarant an
exclusive option to purchase the land subject only to:
(i) Current taxes not yet delinquent;
(ii) Hatters affecting title existing at the Effective
Date of this Declaration, excluding any mortgage, deed of trust or similar
instrument to which Declarant has subordinated the Enforcement Rights pursuant
to Section 2.8 above;
11
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• (III) Matters affecting title which are created, me".
assumed, consented to or requested by Declarant, its successors or assigns,
-- --
excluding any mortgage, dead of trust, any scatter related to issuance of any
public obligation or similar instrument to which Declarant has consented without
awI
exercise of the Enforcement Rights or to which Declarant has subordinated the
Enforcement Rights pursuant to Section 2.8 above;
`
ga"
(iv) Matters shown as printed exceptions in the standard
form California Land Title Association owner's policy of title insurance.
U
(v) Noninterfering easements for utilities used in
connection with the isprovements constructed on the Land.
'Owl(b)
Exercise of Repurchase 0otion. Declarant may exercise its
option to repurchase the LAnd by giving written notice to Grantee of Declarant's
election to repurchase within (i) sixty (60) days after receipt of Grantee's
notice of proposed "transfer" as provided in Section 2.7 (Transfers) above, (ii)
within ninety (90) days after Declarant receives actual notice of any transfer
or attempted transfer in violation of any provision in Section 2.7. (111) within
ninety (90) days commencing thirty (30) days after delivery of notice to Grantee
of violation of the Restrictions itemized in Section 2.1(a) if such violation has
continued unabated, or (iv) within one hundred eighty (180) days of the
8
respective commencement or completion dates (as such dates may be extended
pursuant to the terms of this Declaration) in the event of Grantee's violation
of Section 2.1(c) above. For purposes of this Section 5.3, Declarant's actual
i
notice shall mean notice to the person to whom notice may be addressed under
Section 6.7 of this Declaration, and no other persons_ No failure of Declarant
to exercise its option upon Grantee's failure to commence construction as
provided above shall constitute a waiver of its right to exercise the option upon
Grantee's failure to complete construction by the appropriate date, as described
above. No failure of Declarant to exercise its option in the event of any
proposed, attempted or actual "transfer" (whether approved by Declarant or not)
in violation of Section 2.7 above shall constitute a waiver of Declarant's rights
to exercise the option upon any such transfer subject to Section 2.7 which might
be proposed, attempted or consummated at a later time. No failure of Declarant
to deliver a notice of violation of the Restrictions contained in Section 2.1(a)
shall constitute a waiver of Declarant's rights to deliver such notice at any
time and exercise the option. Rescission of any notice of violation of the
Restrictions itemized in Section 2.1(a) prior to the option becoming exercisable,
or if such violation is cured, after the option becoming exercisable shall not
constitute waiver of Declarant Is right to later notify Grantee of a new violation
and exercise the option. Any rescission of notice of exercise of this option
shall not constitute waiver of Declarant's right to exercise the option again if
a later event causes the option to become exercisable.
(c) Expiration and Quitclaim. Unless exercised by Declarant,
this option shall expire upon the twenty fifth (25th) anniversary of the
Effective Date. After expiration and upon written request therefor by Grantee,
Declarant shall execute and deliver to Grantee a quitclaim dead satisfactory to
Declarant relinquishing all of its rights under the option to repurchase portion
of this Declaration.
(d) Repurchase Price. DeclarantIspurchase price for the Land
upon its exercise of the option provided above, shall be the greater of:
(i) An amount including the following;
(Aj The price attributable to the Land equal to
the lesser of (A) $4,400,000 increased or decreased by CPI adjustments which
shall be limited to an annualized increase or decrease of five percent (51) per
annun or. (B) the appraised fair market value of the Land with the use restricted
to the use for which Declarant notifies Grantee at the time of exercise of the
option that it intends to use the Land. Declarant shall notify Grantee that it
intends to use the Land either for commercial office or retail use at the time
of delivery of the notice of exercise or any time thereafter (Failure of
Declarant to specify a use in conjunction with delivery of a notice of exercise
of the option shall not invalidate or otherwise affect exercise of the option.).
The CPI adji,stment shall be the percentage increase or decrease in the CPI
measured from the month which is two months prior to the Effective Date to the
month which is two months before the date of delivery of the notice of exercise.
12
The CPI shall be the Consumer Price Index for All Urban Consumers Los Angeles-
Anaheim-Aivarsida Metropolitan Area (all items) compiled by the United States
Department of Labor, Bureau of Labor Statistics, based upon 1962-84 as 100;
provided, however, that if the CPI is modified or changed, then the CPI shall be
a converted or substituted index as determined by Declarant. Plus
[B) The fair market value of the Useable
improvements, if any, on the Land at the time the Option is exercised. The
'Useable Improvements• shall be limited to those interior areas of buildings
which can be used or converted for use as interior commercial or retail rentable
space in accordance with the use which Declarant intends to put the Useable
Improvements as designated by Declarant. Fair market value of such Useabla
Improvements shall be determined using an income methcd of appraisal based upon
comparable rents determined on a useable square foot basis for the square footage
of the Useable Improvements offset by the cost of any improvements required to
convert the use of the building to the use which Declarant notifies Grantee that
it intends to put the Usable Improvements. Less
[C] All costs, expenses, interest, fees, advances
and other sums required to be paid by Grantee to Declarant hereunder, to the
extent not reimburaed to Declarant by Grantee, shall reduce the amount of any
repurchase price to be paid by Declarant under the terms of the repurchase option
contained in this Declaration_ Or
(ii) The unamortized principal amount, plus interest of,
and expenses (including without limitation costs to redeem and discharge
including any call premium provided that aggregate call premiums shall be limited
to five percent (S%) of principal) incurred in connection with, any issue of
public obligations where the proceeds have been used only for costs and expenses
related to construction of the Specific Facilities on the Land provided that the
original principal amount of such public obligations does not exceed
$6,D00,000.00 and provided that the amount payable to Grantee under this
subparagraph (ii) shall be reduced and offset by any and all funds held for the
benefit of any holders of public obligations other than funds held to pay the
costs of issuance, if any.
(e) Repurchase Escrow Terms. Within five (5) days after
Declarant's exercise of the option as provided above or as soon thereafter as
possible, an escrow shall be created at First American Title Insurance Company
or another escrow company selected by Declarant to consummate the purchase as
specified herein, which escrow .shall have a time limit of thirty (30) days
extended by any period necessary to arbitrate any determination of fair market
value as provided in Section 5.4 below. Said escrow shall be subject only to
approval by Declarant of a then current preliminary title report. Any exceptions
shown thereon created on or after the .Effective Date hereof, and disapproved by
written notice to Grantee through escrow, shall be removed by Grantee at its sole
expense at or prior to closing of escrow. In the event that the Land or any
portion thereof is encumbered by a mortgage or deed of trust, Declarant may
unilaterally instruct the escrow agent to satisfy the indebtedness secured
thereby out of the proceeds payable to Grancee through the foregoing escrow. Any
additional amount necessary to satisfy much indebtedness shall be paid by
Grantee. Grantee and Declarant shall each pay one-half of the escrow fees.
Grantee shall pay for documentary tax stamps, for recording the deed, and for a
California Land Title Association standard form owner's coverage policy of title
insurance in the amount of the purchase price showing title to the Land vested
in Declarant or its assigns free and clear of all liens, encumbrances or other
title exceptions other than those set forth in this Declaration. Any other costs
or expense shall be allocated between this parties in the manner customary in
Orange County, California.
(f) Irrevocability. The option created hereby shall be
irrevocable by Grantee, and shall be binding upon the representatives, successors
and assigns of Grantee.
(g) Warranties. Plans and Specifications. In the event
Declarant reacquires all or any portion of: the Land, the Specific Facilities or
the Other Improvements under this Section 5.3, Grantee shall assign and transfer
to Declarant for no additional consideration, all warranties, plane and
specifications relating to the Usable Improvements and any other improvements
transferred by Grantee to Declarant hereunder.
13
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5.4 Arbitration Procedure. If Declarant and Grantee are not able
to agree to the fair market value of the Land or the Useabla Improvements within
thirty (30) days after the date Declarant gives Grantee notice of exercise of the
option, than the following arbitration procedure shall apply:
[A] Declarant shall within an additional thirty
'10) days, at Declaranc's coat, deliver to Grantee a written appraisal of the
applicable highest fair market value with which Declarant agrees, prepared by an
Independent qualified appraiser ("Declarant's Appraisal'). The term "independent
qualified appraiser" an used in this Section shall mean a professional
independent appraiser who is a Member of the American Institute of Real Estate
Appraisers (R.M. or M.A.I.), the Society of Real Estate Appraisers (S.R.A.,
S.R.P.A., or S.R.E.A.), the American Society of Appraisers (member or senior
member A.S.A.), or another recognized association of appraisers, or a similar
association of real estate appraisers that has adopted rules and regulations
governing the professional conduct and ethics of its members requiring
Independent appraisala without bias to any party or to any result, or has such
other education and experience so as to be considered qualified by both parties.
[b] If Grantee does not agree with Declarant's
Appraisal, Grantee shall notify Declarant in writing of such disagreement in
writing within ten (10) days after receipt of Declarant's Appraisal. Within
thirty (30) days of such notice, Grantee shall at its cost deliver to Declarant
a written appraisal of the applicable highest market value with Which Grantee
agrees, prepared by an independent qualified appraiser ("Grantee's Appraisal").
I£ Grantee fails to deliver Grantee's Appraisal within the time provided, or if
Grantee's Appraisal of fair market value is lower than or equal to that contained
in Declarant's Appraisal, then Declarant's Appraisal shall constitute the final
and binding determination of the applicable fair market value.
[C] If Grantee's Appraisal is delivered to
Declarant within the time provided and is higher, than Declarant's Appraisal, and
if Declarant and Grantee cannot then agree as to the applicable highest fair
market value within ten (10) days after delivery of Grantee's Appraisal to
Declarant, then Declarant and Grantee shall within ten (10) days thereafter
mutually agree on a third independent qualified appraiser acceptable to them to
make an independent determination of the applicable highest fair market value
(the "Final Appraisal"). Such Final Appraisal shall be delivered to Declarant
and Grantee within thirty (30) days of the selection of the third appraiser. If
Declarant and Grantee do not agree on a third independent qualified appraiser
acceptable to them as specified above, then such third appraiser shall be
appointed in accordance with the provisions of California Code of Civil Procedure
Section 1281.6, or any successor statute, and in such event the independent
determination of the highest fair market value made by the third appraiser so
appointed shall be the "Final Appraisal." If the third appraiser must be
appointed pursuant to the provisions of the California Code of Civil Procedure
Section 1281.6, or any successor statute, Declarant shall file a petition to
appoint the third appraiser with the Superior Court of Orange County, California
("Court"), and shall set the hearing on the petition on the earliest date
permitted by the Court's calendar and by the applicable notice period required
by law. Declarant and Grantee shall share equally the cost of the Final
Appraisal. If the Final Appraisal states a fair market value between that of
Declarant's Appraisal and Grantee's Appraisal, the Final Appraisal shall be the
final and binding determination of the applicable market value. If the fair
market value established in the Final Appraisal is higher than (1) the fair
market value established in Grantee's Appraisal or is lower than (2) the fair
market value established in Declarant's Appraisal, or equal to either, then the
final determination of the applicable fair market value shall be (1) or (2)
depending upon which one is equal or closer to the fair market value established
in the Final Appraisal.
[D] The procedure act forth above for determining
the applicable market value shall be the exclusive procedure therefor and shall
be final, binding and nonappealable unless expressly waived by both parties in
writing. It is the responsibility of Grantee to ensure that this procedure for
determining highest fair market value is instituted in sufficient time to satisfy
any commitments, agreements or needs of Grantee.
5.5 Waiver. No Waiver by Declarant of a breach of any of the
Restrictions by Grantee and no delay or failure to enforce any of the
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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 actior. on account of such breach or default if such breach
or default persists or is repeated, and no express waiver shall affect a breach
or default other than as specified in said waiver. The conseut or approval by
*declarant to or of any act by Grantee requiring Doclarant's consent or approval
shall not be deemed to waive or render unnecessary Declarent'm consent or
approval to or of any subsequent similar acts by Grantee.
5.6 Costs of Enforcement. In the event any legal or equitable
action or proceeding shall be instituted between Declarant and Grantee to enforce
nny provision of this Declaration, the party prevailing in much action shall be
entitled to recover from the losing party all of its coats, including court costs
and reasonabla attorneys' fees.
5.7 Ri¢hta of _Leaders. No breach or violation of the Restrictions
shall defeat or render invalid the lien of any mortgage, deed of trust or similar
instrument securing a loan made in good faith and for value with respect to the
development or permanent financing of the Land or any portion thereof; provided,
however, that this Declaration and all provisions hereof shall be binding upon
and effective against any subsequent owner or other occupant of the Land or
portion thereof whose title is acquired by foreclosure, trustee's sale or deed
in lieu of foreclosure but (a) such subsequent owner shall have a reasonable time
after acquiring title in which to cure any violations or correct and change any
facts giving rise to Declarant's rights under this Declaration occurring prior
to such transfer of title and which are reasonably capable of being cured or
changed provided, that such subsequent owner diligently acts to effect such cure
or change (and in the event of such diligent and timely cure, such subsequent
owner shall have no further liability in connection with such prior violation or
the continued existence of such violation until such cure is completed), and (b)
Sections 5.1(a) (Damages) and 5.3 (Option to Repurchase the Land) shall not be
applicable as to such subsequent owner with regard to any noncurable default
occurring prior to the time such subsequent owner acquired title.
Notwithstanding the foregoing, any such subsequent owner shall be required to use
the Land in accordance with the restrictions set forth in Section 2.1(a) and
diligently complete construction of any Specific Facilities and Other
Improvements which are incomplete on the date such subsequent owner acquires
title, all subject to the requirements contained in this Declaration, except the
time periods referred to in Section 2.1(c) shall be reasonably extended. For
purposes of this Section, the construction or installation of any improvement in
violation of the requirements of this Declaration shall be deemed 'curable" so
long as reconstruction, repair or replacement in a manner consistent with the
requirements of this Declaration is physically and legally possible (without
respect to cost).
5.8 Advances. Declarant shall be entitled to advance any sums
Declarant in its sole discretion deems necessary to protect and preserve the
security for its rights and interest under this Declaration (including but not
limited to sums for completion of construction of the Specific Facilities or any
offsite improvements, any property taxes or assessments, insurance premiums, or
amounts secured or represented by encumbrances or liens or other charges on any
portion of the Land which appear to be prior' to Declarant's rights and interest
under this Declaration), all of which advances together with interest at the
maximum contract rate then permitted by law shall be paid to Declarant upon
demand.
ARTICLE 6. GENERAL PROVISIONS.
6.1 Unavoidable Delay. Any prevention, delay or stoppage in the
work of building the Specific Facilities, .he Other Improvements and any other
related improvements or other work as provided for in this Declaration caused by
acts of God, war, inability to obtain labor or materials or reasonable
substitutes therefor, or other similar matters or causes beyond the reasonable
control of Grantee shall extend the time within which this Declaration requires
certain acts to be performed for a period or periods equal to any period of such
prevention, delay or stoppage, but not to exceed in the aggregate one year;
provided, hor.aver, that nothing in this Section shall excuse the prompt payment
of any and all amounts due from Grantee to Declarant as required herein or the
performance of any act rendered difficult because of the financial condition of
15
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Grantee or because of any inability of Grantee to obtain funding from say source.
Without limiting the generality of the foregoing, in no went shall Grantee's
inability to obtain construction or permanent financing for development of the
Land, or a portion thereof, constitute an unavoidable delay pursuant to this
Section. Furthermore, in no event shall any extension of any period of tiros be
deemad 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; and provided further that the period of time
for exercise of Declarant's rights shall be commensurately extended.
6.2 Continuous Operations. Grantee shall proceed continuously and
diligently in accordance with the terms and conditions of this Declaration. In
the event Grantee does not proceed continuously and diligently, such failure to
so proceed may, at the option of Declarant, be considered an event of default
herein, except as such failure is excused by reason of any unavoidable delay as
set forth in the Section hereof entitled 'Unavoidable Delay.'
6.3 Covenants to Run With the Land: Term.
(a) Covenants to Run With the Land. The Lend shall be held,
improved, developed, conveyed, hypothecated, encumbered, leased, rented, used and
occupied subject to the Restrictions set forth in this Declaration. The
Restrictions are for the benefit of the Benefitted Property and are intended and
shall be construed as covenants and conditions running with and binding the Land
and equitable servitudes upon the Land and every part thereof. Furthermore, all
and each of the Restrictions shall be binding upon and burden all persons having
or acquiring any right, title or interest in the Land, or any part thereof, and
their successors and assigns, and shall inure to the benefit of the Benefitted
Property and the owners of the Benefitted Property, their successors and assigns,
and shall be enforceable by Declarant and its successors and assigns, all upon
the terms, provisions and conditions set forth herein.
(b) Term. All of the terms and provisions set forth in this
Declaration shall continue in full force and effect in perpetuity, except that
Declarant's "Enforcement Rights' (as described in Section 2.8 above) shall
terminate twenty-five (25) years from the Effective Date hereof. (The provisions
of this Declaration which shall survive in perpetuity shall include, without
limitation Article 1, Sections 2.1 through 2.6, inclusive, 2.9, 2.10, Article 3,
Sections 5.1, 5.2, 5.5 through 5.8, inclusive, and this Article 6.)
6.4 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 duties 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 assignment, have the
same rights and powers and be subject to the same obligations and duties as are
given to and assumed by Declarant herein. Without limiting the generality of the
foregoing, Declarant may make such assignment as to the entire Land or to any
portion thereof. Unless specifically assigned in writing as stated in this
paragraph, Declarant alone shall have the right to enforce the Restrictions and
the other provisions of this Declaration or to recover damages or other amounts
for violation of the Restrictions or breach of Grantee's duties hereunder.
6.5 Amendments. Except .as provided in this Declaration concerning
(a) substitution of other real property as the Benefitted Property, (b) release
of any portion or all of the land from this Declaration, (c) reacquisition of the
Land by Declarant and (d) assignment by Declarant of its rights under this
Declaration, this Declaration may be terminated, extended or amended only by a
writing executed by Declarant and Grantee and recorded against the land.
6.6 Release.
(a) Release by Declarant. Declarant may release any portion
of the Land from this Declaration at any time and for any reason without the
approval of Grantee.
(b) Not Applicable to Declarant. Notwithstanding anything
herein contained to the contrary, if Declarant reacquires title to the Land or
any portion thereof at any time after tho date hereof and record(s) a notice of
16
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' •termination of theme kestrictions in the Office of the County Recorder of Orange
County, California. theme 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.
6.7 Notice. All notices, consents, requests, demands and other
communications provided for herein shall be in writing and shall be dammed to
/
have been duly given if and when personally served or forty eight (48) hours
aI
after being sent by United States registered mail, return receipt requested,
postage prepared, to the other party at the following respective addresses:
DECLARANT: THE IRVINE COMPANY
c/o IRVINE LAND MANAGEMENT COMPANY
Post Office Box I
Newport Beach. California 92658-8904
Attention: President/IL.MC
GRANTEE: City of Newport Beach
33GO Newport Boulevard
Post Office Box 1768
Newport Beach. CA 92659-1768
sl
or at such other address as Declarant or Grantee way designate to the other in
writing in accordance with the provision of this Section.
6.8 Governing Law, ibis Declaration shall be governed by and
construed under the laws of the State of California.
6.9 Severability. In the event that any portion of this Declaration
shall become illegal, null or void or against any public policy, for any reason,
or shall be hold by any court of competent jurisdiction to be illegal, null or
void or against any public policy, the reasining portions of this Declaration
shall not be affected thereby and shall remain in force and effect to the full
extent permitted by law.
6.10 Cagtions. The captions used herein are for convenience only and
are not a part of this Declaration and do not in any way limit or amplify the
terms and provisions hereof.
6.11 Entire Agreement. This De. clarat ion. including Exhibits attached
hereto which are incorporated herein by this reference, constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof and
all prior and contemporaneous agreements, representations, negotiations and
understandings of the parties hereto, oral or written, are hereby superseded and
merged herein. The forgoing sentence shall in no way affect the validity of the
Agreement pursuant to which Grantee acquired the Land or any instruments executed
in connection therewith.
6.12 Gender and Number. In Lhis Declaration (unless the context
requires otherwise), the masculine, feminine and neuter genders and the singular
and the plural include one another.
6.13 Time of the Essence. Tine is of the essence of each provision
of this Declaration in which time is an element.
17
• IN WITNESS VMSOF, the undersigned have ewacuted this Declaration
as of the date written below,
NDECIAIIAIIT"
.M.
THE IRVIKE COMPANY. CITY OF NEWPORT BEACH.
• Michigan corporation a California sumo pal corporation
BY: .��-t.1..R Ey: •.
i1a� P y I mayor
Its: Y[
Ey: ATTEST:
Its a rc �/ Ey:
` Its: i Clark
APPRO ED
By: moo
Its: city Manager
"MOV S To FORM:
By:
T , C Attorney
STATE OF CALIFORNIA )
).ss
COUNTY OF )
47
On this"day of in the year 197,4-before me, the undersigned, a Notary
Public so for said State, personally ppeared
and personally ]moon to so
Tor proved to ue on the bas s of 9ati8fa to evidence) to be the pars o
executed the within instrument eaand
respectively, on behalf of THE IRVINE COMPANY and acknowledged to me that spd
corporation executed it.
WITNESS my hand and official seal.OMALA
-
RtSWE IEY
000
CRANGe/A71C� E rti
�Rros,.n.eo.oeca.+aa '
CCUNV
Notary Public in and fo said State
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COUM OF ORRUM j
On March 19. 1994, before so, the undersigned, i Notary '
Public in and for the 8tata, personally appeared pt113_ant.
known to as to be the Mayor, Robert L.�nn, known to i to be the
City Manager, andMafia E. Raoyio, known to me to be the City
Clerk, on behalf of the CITY OF NENPM HEUSP which executed the
within instrument pursuant to governing law and a resolution of its
board of directors and acknowledge to ae that the CITY OF jiE11PORT --
HEhm executed it.
i1I WWS my hand and official sea
i
sEAL Notary Public in W for nVid State—
Sl" LYN am
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EXHIBIT 1
To Declaration of Special Restrictions
Legal Description of "Bensfitted Property"
EXHIBIT "1"
LEGAL DESCRIPTION
BENEFITED PROPERTY FOR THE
CITY OF NEWPORT BEACH LIBRARY SITE
Parcel 1 (500 and 550 Newport Center Drive and Adjacent Iind)
That portion of Block 93 of Irvine's Subdivision in the City of Newport Beach,
County of Orange, State of California, as shown on a sup filed in Book 1, Page
88 of Miscellaneous Records Maps in the Office of the County Recorder of said
Orange County, described as follows:
BEGINNING at the easterly terminus of that certain course shown as having a
bearing and length of "South 80'14'38" East 91.45 feet" in the northerly right-
of-way line of San Nicolas Drive on a map of Tract No. 6015, filed in Book 239,
Pages 28 through 41 of Miscellaneous Maps in said Office of the County Recorder;
thence along said right line and along the easterly right-of-way line of Newport
Center Drive East, the southerly right-of-way line of Santa Rosa Drive and the
southwesterly right-of-way line of San Joaquin Hills (toad, all as shown on said
map of Tract No. 6015 through the following courses: North 80'14'38" West 91.45
feet to the beginning of a tangent curve concave northeasterly and having a
radius of 25.00 feet; thence along said curve westerly and northwesterly 38.16
feet through a central angle of 87'26'49" to a point of reverse curvature with
a curve concave westerly and having a radius of 1670.00 feet, a radial line of
said curve from said point bears North 82'47'49" West; thence along said curve
northerly 472.13 feet through a central angle of 16'11'54" to a point of reverse
curvature with a curve concave southeasterly and having a radius of 25.00 feet,
a radial line of said curve from said point bears North 81*00117" East; thence
along said curve northerly and northeasterly 38.16 feet through a central angle
of 87'26149"; thence tangent from said curve North 78'27'06" East 69.97 feet to
the beginning of a tangent curve concave northwesterly and having a radius of
825.50 feet; thence along said curve northeasterly 444.81 feet through a central
angle of 30'52'23"; thence tangent from said curve North 47'34'43' East 2.20 feet
to the beginning of a tangent curve concave southerly and having a radius of
25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through
a central angle of 89'17126" to a point of reverse curvature with a curve concave
northeasterly and having a radius of 6072.50 feet, a radial line of said curve
from said point bears North 46'52'09" East; thence along said curve southeasterly
329.29 feet through a central angel of 3'06'25"; thence tangent from said curve
South 46'14.16" East 31.81 feet to the northerly corner of Parcel 1 as shown on
a map filed in Book 13, Page 41 of Parcel Maps in said Office of the County
Recorder; thence leaving said southwesterly right-of-way line of San Joaquin
Hills Road and along the boundary of said Parcel 1 the following courses: South
44'06'14" West 140.00 feet; thence south 45'53'46" East 183.00 feet to the
beginning of a tangent curve concave northerly and having a radius of 25.00 feet;
thence along said curve southeasterly and easterly 39.27 feet through a central
angle of 90'00'00"; thence tangent from said curve North 44'06114" East 103.60
feet to the beginning of a tangent curve concave northwesterly and having a
radius of 25.00 feet; thence along said curve northeasterly 13.23 feet through
a central angle of 30'19'01" to a non -tangent intersection with said
southwesterly right-of-way of San Joaquin Hills Road; thence leaving said
boundary and along said right-of-way line South 46'14'16" East 48.72 feet to the
northerly corner of Parcel 1 as shown on a map filed in Book 21. Page 18 of
Parcel Maps in said Office of the county Recorder, said corner being a point in
a non -tangent curve concave southeasterly and having a radius of 25.00 feet, a
radial line of said curve from said point bears South 16'06'05" East; thence
along the boundary of said Parcel 1 the following courses: along said curve
southwesterly 13.00 feet through a central. angle of 29'47'41"; thence tangent
from said curve South 44'06'14" West 104.09 feet to the beginning of a tangent
curve concave easterly and having a radius of 25.00 feet; thence along said curve
southwesterly and southerly 39.27 feet through a central angle of 90'00'00";
thence tangent from said curve South 45'53'46" East 186.00 feet to the westerly
corner of Parcel 1 as shown on a map filed in Book 54. Page 23 of Parcel Maps in
said Office of County Recorder; thence leaving the boundary of Parcel 1 as shown
Exhibit 1
Legal Dee. rlplfon of-benefit-4 Freperty"
A"PRDP.Dn 1 March 11, loll
on said map filed in Book 21, Page 18 of Parcel !Saps and along the boundary of
Parcel 1 as shorn on said map filed in Book 54, Page 23 of Parcel "a South
„
45'53146" East 68.09 feet to the beginning of a tangent curve concave westerly
■
and having a radius of 40.00 feat; thence continuing along said boundary and said
curve southeasterly 36.39 feet through a central angle of 52'07123" to the
northwesterly corner of Parcel 3 as shown on Parcel Nap No. 64-706 filed in Book
192, Pages 1 and 2 of Parcel Naps in said Office of the County Recorder, a radial
sine of said curve from said corner bears North 93'46'23" Nest; thence along the
boundary of said Parcel 3 and Parcel 2 as shown on ssid Parcel Map the following
courses: continuing along said curve southerly 26.44 fast through a central
angel of 37'52'37"; thence tangent from said curve South 44'06'14" West 289,00
feet to the northeasterly corner of Parcel 1 as shown on a map filed in Bonok 27,
Page 43 of Parcel Naps in said Office of the County Recorder, ssid corner being
the beginning of a curve tangent to last said course, concave northerly and
having a radius of 40.00 feet; thence leaving the boundary of said Parcel 2 and
along the boundary of said Parcel 1 the following courses: along said curve
southwesterly and westerly 62.83 feet through a central angel of 90'00'00';
thence tangent from said curve North 45'53146" Nest 14.11 feet to the beginning
of a tangent curve concave southerly and having a radius of 25.00 feet; thence
along said curve northwesterly and easterly 39.27 feet through a central angle
of 90'00'00"; thence tangent from said curve South 44*06114" Went 99.44 feet to
+�d
the beginning of a tangent curve concave southeasterly and having a radius of
25.00 feet; thence along said curve southwesterly 13.46 feet to a non -tangent
intersection with the northeasterly right-of-way line of said San Nicolas Drive
as described in a Grant of Easement to the City of Newport Beach recorded in Book
8987, Page 836 of Official Records in said Office of the County Recorder; thence
I
leaving said boundary of Parcel 1 and along said right-of-way line as described
in said Grant of Easement and as shown on said map of Tract No, 6015 the
following courses: North 46'44100" West 92.34 feet to the beginning of a tangent
curve concave southwesterly and having a radius of 950.50 feet; thence along said
curve northwesterly 555.92 feet through a central angle of 33-30138" to the POINT
OF BEGINNING.
Parcel 2 (Fashion Island Shopping Center)
That portion of Tract 6015, in the City of Newport Beach, County of Orange, State
of California, as per map filed in Book 239, pages 28 through 41, Miscellaneous
Maps, records of said County, lying within the following described boundary:
Commencing at the center line intersection of Santa Rosa Drive with Newport
Center Drive East as shown on said map; thence south 78'27'06" West 48.00 feet
along the Westerly prolongation of the center line of said Santa Rosa Drive to
a point on a non -tangent curve concave, Westerly and having a radius of 1557.00
feet, said point being the True Point of Beginning, a radial to said point bears
North 78'27'06" East, said curve being concentric with the center line of said
Newport Center Drive East; thence Southerly 1314.59 feet along said curve through
an angle of 48'22'31" to the beginning of r, compound curve concave Northerly and
having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve
through an angle of 110'52'24" to the beginning of a compound curve concave
Easterly and having a radius of 1757.00 feet; thence Northerly 1248.07 feet along
said curve through an angel of 40'41158" t3 the beginning of a compound curve
concave Southerly and having a radius of 897.00 feet; thence Easterly 2438.09
feet along said curve through an angle ol` 155'43.57" to the beginning of a
compound curve concave Westerly and i:avin; a radius of 1557.00 feet; thence
Southerly 117.38 feet along said curve through an angle of 4'19110" to the True
Point of Beginning.
hti6lt 1
Legal Dn fflptlon of-B"odit"d 1'90pertY"
AD Nor .DFL 2 M"zch 11. IM3
MMISIT 2
To Declaration of Special Restrictions
Requirements for Specific Facilities
REQUIS FOR SPECIFIC FACILITIES
Description of Specific Facilities:
A free public library and related driveways, accessvays and landscaping.
Permitted Use:
Public Library acd related parking of private passenger automobiles
during the hours from 6:00 a.m. to 11:30 p.m. daily.
Maximum No. of Buildings: 1
Minimum Gross Floor Area: 10,000 square feet*
Maximum Gross Floor Area: 65,000 square feet*
Maximum Floor Area Ratio: 50 percent
Commencement Date: 12 months from Effective Date
Completion Date: 36 months from Effective Date
* By setting forth any required minimum or maximum gross foot area above,
Declarant does not thereby represent or warrant that Buyer shell be able to
develop the Iand for such density.
REQUIREMENTS FOR OTHER IMPROVEMENTS
Those improvements required by Exhibit I to the Exchange Agreement.
aDolmso. DR
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Lia1SIt 2
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EXHIBIT 3
To Declaration of Special Restrictions
Subordination Agreement
a -
' Chen Recorded Nail To:
_ THE IRVINE COMPANY
550 Newport Canter Drive
Newport Beach, CA 92660
Attention: President/ILHC
Space above this line for Recorder's use A.P. No.
SUBORDINATION AGREEMENT
NOTICE; THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS AND INTERESTS AND
YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
I. PARTIES AND DATE.
This Subordination Agreement ("Agreement") is made this _ day of
19_ by the CITYOF NEWPORT BEACH, a California municipal
corporation ("Owner"), owner of the "Land" (as defined below) and THE IRVINE
COMPANY, a Michigan corporation ("TIC"). declarant under the Declaration (defined
below).
I1. ACKNOWLEDGMENTS
Owner has executed a Declaration of Special Land Use Restrictions, Right
of First Refusal, Mortgage Lien and Option to Repurchase (the "Declaration")
dated. , 19_, and recorded on _ as Instrument No.
rn
in the Official Records of Orange County California as an encumbrance on the
title of the real property described as:
Parcel in the City of Newport Beach, County of Orange, State of
California, as shown on a parcel map filed in Book , Pages_ to
_ inclusive, of Parcel Maps, in the office of the County Recorder
of Orange County (the "Land").
Owner has executed, or is about to execute, certain loan documents ("Loan
Documents") dated 19 with or in favor of
("Lender") to obtain
and evidence a loan (the "Loan") from Lender in the amount of $
The Loan Documents have all been delivered to TIC and include, without
limitation, a Deed of Trust (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 obligat:ions in connection with the Loan in
good faith and for value pursuant to an agreement with Owner, on which TIC is
relying and which is memorialized in the loan Documents, that the proceeds of the
Loan will be expended solely for fin"ncin; or refinancing of construction of
certain improvements on the Land, the plar,s and specifications for which have
been, or will, prior to the commencement of construction, be approved by TIC, all
in accordance with the provisions of the Loan Documents, and for no other purpose
unless approved by TIC in writing in its sole discretion.
A condition precedent to Lender's agreement to make the Loan is that the
Deed of Trust shall be and remain at all times a lien or charge upon the Land
prior and superior to certain enforcement righta and remedies of TIC under the
Declaration.
TIC and Owner agree that it is to their mutual benefit that Lender make the
Loan to Owner. This Agreement is made in consideration of the mutual benefits
IIp.ct.t me"t ttctl oo"
tmmtt 7
5W.rdlnat1on darewrotl4rcb It. 1961
e to TIC and Owner resulting from the Lose and for other valuable consideration,
the receipt and sufficiency of which is acknowledged by TIC and Owner.
III. soaopDli_TIOH.
The Dead of Trust and any renewals or extensions thereof shall be and
remain at all time a lion or charge on the Lad prior and superior to
Declarant's right of first refusal contained in Article 6 of the Declaration and
the option to repurchase contained in Section 5.3 of the Declaration,
(collectively, the "Enforcament 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 Land 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 subsequent owner shall have the cure rights as provided in Section
5.7. Notwithstanding anything to the contrary contained in this Agreement,
Lender's foreclosure or similar or related proceeding under the Deed of Trust
shall not extinguish the Declaration or TIC's Enforcement Rights, all of which
shall survive such proceeding and shall be binding upon any subsequent owner
acquiring title from Lender as stated above.
IV. MISCELLANEOUS
A. Entire Agreement.
This Agreement shall be the whole and only agreement between TIC and Owner
with regard to the subordination of TIC's Enforcement Rights and remedies under
the Declaration to the lien or charge of the Dead of Trust.
B. Attorneys' Fees.
The prevailing party in any litigation respecting this Agreement shall be
entitled to reimbursement of attorney's fees and costs, whether or not taxable,
incurred in the litigation,
"TIC" *OWNER"
THE IRVINE COMPANY, CITY OF NEWPORT BEACH
a Michigan corporation
By: By:
Its, Its: Mayor
By: ATTEST:
Its: By:
Its:
APPROVED AS TO FORM:
By:
to: City Attorney
special Reetsictie"s
b6lblt 7
2 eubocdinatlea AgreannOtH sch St. iM
0 e
a
STATE OF CALIFOBNIA )
),ss
COUNTY OF )
on , 19_, before ow, the umdersignad, a Notary Public in
and for said State, personally appeared
and personally known to an (or proved to me on the
basis of satisfactory evidence) to be the persons who executed the within
instrument as and on behalf of THE
IRVINE COMPANY, a Michigan corporation, and acknowledged to me that said
corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA )
).as
COUNTY OF )
On 19_, before me, the undersigned, a Notary Public in
and for said State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as Mayor, on behalf of City
of Newport Beach, which executed the within instrument pursuant to governing law
and a resolution of its board of directors and acknowledged to me that the City
of Newport Beach executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
I
Rpeeld teatrletiou
ZE&LUL 3
ADOM e M 3 sube Nieatien ura. ftUkccr 11, 1MZ
EXHIBIT "G"
CONCESSIONAIRE IMPROVEMENTS
Concession Agreement - KIT at the Library, Inc. Exhibit G-1
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EXHIBIT "H"
INSURANCE
Provision of Insurance. Without limiting Concessionaire's indemnification of City and prior
to commencement of work on Premises by Concessionaire or Concessionaire's agents,
representatives, consultants, contractors and/or subcontractors, Concessionaire shall
obtain, provide and maintain at its own expense during the term of this Agreement policies
of insurance of the type and amounts described below and in a form satisfactory to
City. Concessionaire agrees to provide insurance in accordance with requirements set
forth here. If Concessionaire uses existing coverage to comply and that coverage does
not meet these requirements, Concessionaire agrees to amend, supplement or endorse
the existing coverage.
Signature. A person authorized by the insurer to bind coverage on its behalf shall sign
certification of all required policies.
Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of insurance in
the State of California, with an assigned policyholders' Rating of A- (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's
Key Rating Guide, unless otherwise approved by the City's Risk Manager.
1. Minimum Scope and Limit of Insurance.
A. Workers' Compensation Coverage. Concessionaire shall maintain Workers'
Compensation Insurance with statutory limits and Employer's Liability Insurance
with a limit of at least one million dollars ($1,000,000) each accident for bodily
injury by accident and each employee for bodily injury by disease in accordance
with the laws of the State of California.
Concessionaire and Concessionaire's agents, representatives, consultants,
contractors and/or subcontractors, shall submit to City, along with certificates of
insurance, a Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees for all
losses that relate in any way to this Agreement.
B. General Liability Coverage. Concessionaire shall maintain commercial general
liability insurance in an amount not less than two million dollars ($2,000,000) per
occurrence for bodily injury, personal injury, and property damage, including
without limitation, contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general aggregate
limit shall apply separately to the work to be performed under this Agreement, or
the general aggregate limit shall be at least twice the required occurrence limit.
Concession Agreement - KIT at the Library, Inc. Exhibit H-1
C. Products Liability Coverage. Concessionaire shall maintain products liability
insurance covering bodily injury and property damage for all activities of the
Concessionaire arising out of or in connection with products and services sold
by the Concessionaire under this Agreement, in an amount not less than two
million dollars ($2,000,000) combined single limit for each occurrence.
D. Automobile Liability Coverage. Concessionaire shall maintain automobile
insurance covering bodily injury and property damage for all activities of the
Concessionaire arising out of or in connection with the services to be performed
under this Agreement, including coverage for any owned, hired, non -owned or
rented vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit for each occurrence.
E. Property Insurance shall be maintained on an "All Risk" basis, including collapse,
equal to the full replacement cost of the property leased with no coinsurance
clause. Concessionaire shall be solely responsible for the payment of any
deductible.
F. Excess/Umbrella Liability Insurance shall be "following form" of the underlying
policy coverage, terms, conditions, and provisions and shall meet all the
insurance requirements stated in this Agreement, including, but not limited to the
additional insured, primary & non-contributory and waiver of subrogation
insurance requirements stated herein. No insurance policies or self-insurance
maintained by the City, whether primary, reinsurance or excess, and which also
apply to a loss covered hereunder, shall be called upon to contribute to a loss
until Concessionaire's primary and excess/umbrella liability policies are
exhausted.
G. Liquor Liability Coverage. Concessionaire shall maintain liquor liability insurance
in an amount not less than two million dollars ($2,000,000) per occurrence for
bodily injury, personal injury, and property damage. Concessionaire shall obtain
a liquor liability insurance policy that covers all alcohol sold or distributed under
this Agreement. The policy shall specifically include assault and battery coverage
as well as coverage for Concessionaire's employees and patrons.
H. Professional Liability (Errors & Omissions) Insurance. Concessionaire shall
require that Concessionaire's consultants, contractors and/or subcontractors
providing any design, engineering, surveying or architectural services for the
Premises maintain professional liability insurance that covers the services to be
performed, in the minimum amount of two million dollars ($2,000,000) per claim
and four million dollars ($4,000,000) in the aggregate. Any policy inception date,
continuity date, or retroactive date must be before the Effective Date of this
Agreement and Concessionaire shall require that Concessionaire's consultants,
contractors and/or subcontractors agree to maintain continuous coverage
through a period no less than three (3) years after completion of the services
performed.
Concession Agreement - KIT at the Library, Inc. Exhibit H-2
Builder's Risk Insurance. During construction, Concessionaire shall require that
Concessionaire's construction contractors and subcontractors maintain Builders
Risk insurance or an installation floater as directed by City, covering damages to
the work for "all risk" or special causes of loss form with limits equal to one
hundred percent (100%) of the completed value of the work, with coverage to
continue until final acceptance of the work by Concessionaire and City. City shall
be included as an insured on such policy, and Concessionaire shall provide City
with a copy of the policy.
J. Pollution Liability Insurance. Concessionaire shall require that Concessionaire's
construction contractors and subcontractors maintain a policy providing
contractor's pollution liability ("CPL") coverage with a total limit of liability of no
less than two million dollars ($2,000,000) per loss and in the aggregate per policy
period dedicated to this project. The CPL shall be obtained on an occurrence
basis for a policy term inclusive of the entire period of construction. If all or any
portion of CPL coverage is available only on a claims -made basis, then a 10-
year extended reporting period shall also be purchased. The CPL policy shall
include coverage for cleanup costs, third -party bodily injury and property
damage, including loss of use of damaged property or of property that has not
been physically injured or destroyed, resulting from pollution conditions caused
by contracting operations. Coverage as required in this paragraph shall apply to
sudden and non -sudden pollution conditions resulting from the escape or release
of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste
materials, or other irritants, contaminants, or pollutants. The CPL shall also
provide coverage for transportation and off- site disposal of materials. The policy
shall not contain any provision or exclusion (including any so-called "insured
versus insured" exclusion or "cross -liability" exclusion) the effect of which would
be to prevent, bar, or otherwise preclude any insured or additional insured under
the policy from making a claim which would otherwise be covered by such policy
on the grounds that the claim is brought by an insured or additional insured
against an insured or additional insured under the policy.
K. Fire and Extended Coverage. Concessionaire shall maintain fire and extended
coverage insurance, together with insurance against vandalism, theft and
malicious mischief, on the Concessionaire Improvements, trade fixtures, signs,
equipment, personal property, inventory, and all other Alterations on or upon the
Premises from loss or damage to the extent of their full replacement value.
L. Loss of Rent. Concessionaire shall maintain loss of rent insurance insuring that
the Rent will be paid to City for a period up to six (6) months if the Premises are
destroyed or rendered unusable or inaccessible for commercial purposes by a
risk insured under a special form property coverage policy including vandalism
and malicious mischief endorsements.
Concession Agreement - KIT at the Library, Inc. Exhibit H-3
2. Endorsements. Insurance policies shall not be compliant if they include any limiting
provision or endorsement contrary to this Agreement, including but not limited to
restricting coverage to the sole liability of Concessionaire or excluding contractual
liability. The following endorsements shall be provided to the City.
A. Additional Insured Status. The City, its City Council, boards and commissions,
officers, agents, volunteers and employees, are to be covered as additional
insureds for the liability and defense of suits or claims arising out of
Concessionaire's activities ongoing and completed operations related to this
Agreement and with respect to use or occupancy of the Premises, except
professional liability.
B. Primary and Non -Contributory. This policy shall be considered primary insurance
as respects to City, its City Council, boards and commissions, officers, agents,
volunteers and employees as respects to all claims, losses, or liability arising
directly or indirectly from the Concessionaire's operations or services provided
to City. Any insurance maintained by City, including any self -insured retention
City may have, shall be considered excess insurance only and not contributory
with the insurance provided hereunder.
C. Liability Insurance. This insurance shall act for each insured and additional
insured as though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
D. Waiver of Subrogation. All insurance policies shall contain or be endorsed to
waive subrogation against City, its City Council, boards and commissions,
officers, agents, volunteers, and employees. Concessionaire hereby waives its
own right of recovery against City, its City Council, boards and commissions,
officers, agents, volunteers, and employees and shall require similar written
express waivers from Concessionaire's agents, representatives, consultants,
contractors and/or subcontractors. This provision applies regardless of whether
the City has received a waiver of subrogation endorsement from the insurer.
E. Loss Payee. Losses payable under the policy shall be paid to the City as its
interests may appear.
3. Additional Agreements Between the Parties.
A. General Obligations. In the event City determines that (i) the Concessionaire's
activities on the Premises creates an increased or decreased risk of loss to the
City, (ii) greater insurance coverage is required due to the passage of time, or
(iii) changes in the industry require different coverage be obtained,
Concessionaire agrees that the minimum limits of any insurance policy required
to be obtained by Concessionaire or Concessionaire's consultants, contractors
or subcontractors, may be changed accordingly upon receipt of written notice
from City. With respect to changes in insurance requirements that are available
Concession Agreement - KIT at the Library, Inc. Exhibit H-4
from Concessionaire's then -existing insurance carrier, Concessionaire shall
deposit certificates evidencing acceptable insurance policies with City
incorporating such changes within thirty (30) calendar days of receipt of such
notice. With respect to changes in insurance requirements that are not available
from Concessionaire's then- existing insurance carrier, Concessionaire shall
deposit certificates evidencing acceptable insurance policies with City,
incorporating such changes, within ninety (90) calendar days of receipt of such
notice.
B. Use of Premises. Concessionaire agrees not to use the Premises in any manner,
even if use is for purposes stated herein, that will result in the cancellation of any
insurance coverage for the Premises. Concessionaire further agrees not to keep
on the Premises or permit to be kept, used, or sold thereon, anything prohibited
by any insurance policy covering the Premises. Concessionaire shall, at its sole
expense, comply with all reasonable requirements for maintaining the required
insurance coverage on the Premises.
C. Evidence of Insurance. All policies, endorsements, certificates, and/or binders
shall be subject to approval by the City as to form and content. These
requirements are subject to amendment or waiver only if approved in writing by
the City. The City reserves the right to require complete, certified copies of all
required insurance policies, including endorsements required by these
specifications, at any time. The certificates and endorsements for each insurance
policy shall be signed by a person authorized by that insurer to bind coverage on
its behalf. At least fifteen (15) days prior to the expiration of any such policy,
evidence of insurance showing that such insurance coverage has been renewed
or extended shall be filed with the City. If such coverage is cancelled or reduced,
Concessionaire shall, within ten (10) days after receipt of written notice of such
cancellation or reduction of coverage, file with the City evidence of insurance
showing that the required insurance has been reinstated or has been provided
through another insurance company or companies.
D. Notice of Cancellation. All insurance policies shall contain or be endorsed to
provide that the insurance required by this Agreement shall not be suspended,
voided, canceled, or reduced in coverage or in limits until thirty (30) days written
notice has been served upon the City, except ten (10) days for non-payment of
premium. It is Concessionaire's obligation to ensure that provisions for such
notice have been established.
E. Self -Insured Retentions. Self -insured retentions (SIR's) must be declared to and
approved by City. City may require Concessionaire to purchase coverage with a
lower retention or provide proof of ability to pay losses and related investigations,
claim administration, and defense expenses within the SIR. The policy language
shall provide, or be endorsed to provide, that the SIR may be satisfied by either
the named insured or City. Self -insured retentions shall be the sole responsibility
of Concessionaire, or Concessionaire's agents, representatives, consultants,
Concession Agreement - KIT at the Library, Inc. Exhibit H-5
contractors and/or subcontractors who procured such insurance. City may
deduct from any amounts otherwise due Concessionaire to fund the SIR. The
policy must also provide that defense costs, including the allocated loss
adjustment expenses, will satisfy the SIR.
F. Contractual Liability. The policy shall cover liability assumed under an insured
contract, including the tort liability of another assumed in a business contract,
with no endorsement or modification limiting the scope of coverage for liability
assumed under contract.
G. Reporting Requirements. Concessionaire shall give City prompt and timely
notice of any claim made or suit arising out of or resulting from Concessionaire's
or Concessionaire's agents, representatives, consultants, contractors and/or
subcontractors' performance under this Agreement. Any failure to comply with
reporting provisions of the policies shall not affect coverage provided to City, its
City Council, boards and commissions, officers, agents, volunteers and
employees.
H. Requirements Not Limiting. If Concessionaire, Concessionaire's agents,
representatives, consultants, contractors and/or subcontractors maintains higher
limits than the minimums shown above, the City requires and shall be entitled to
coverage for the higher limits maintained by Concessionaire. Any available
insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the City.
Claims Made Policies. If coverage is written on a claims -made basis, the
retroactive date of such insurance and all subsequent insurance shall coincide
or precede the effective date of Concessionaire's initial Agreement with the City
and continuous coverage shall be maintained, or an extended reporting period
shall be exercised for a period of at least ten (10) years from termination or
expiration of this Agreement.
J. Insurance For Subcontractors. Concessionaire shall be responsible for causing
Concessionaire's agents, representatives, consultants, contractors and/or
subcontractors to purchase the same types and limits of insurance in compliance
with the terms of this Agreement, including adding the City as an additional
insured, providing primary and non-contributory coverage and waiver of
subrogation to the policies. Concessionaire shall verify that all consultants,
contractors and/or subcontractors maintain insurance meeting all the
requirements stated herein, and Concessionaire shall ensure that City is an
additional insured on insurance required from contractors, consultants and/or
subcontractors.
Concession Agreement - KIT at the Library, Inc. Exhibit H-6
EXHIBIT "I"
MEMORANDUM OF CONCESSION AGREEMENT
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code §§. 6103 and 27383]
MEMORANDUM OF CONCESSION AGREEMENT
This Memorandum of Concession Agreement ("Memorandum") is dated
and is made between City of Newport Beach, a California municipal
corporation and charter city ("City") and KIT at the Library, Inc., a California stock
corporation ("Concessionaire"), concerning the Premises described in Attachment "A"
attached hereto and by this reference made a part hereof.
For good and adequate consideration, City leases the Premises to Concessionaire and
Concessionaire leases the Premises from City, for the term and on the provisions
contained in the Concession Agreement ("Agreement") dated ,
including without limitation provisions prohibiting assignment, subleasing, and
encumbering said leasehold without the express written consent of City in each instance,
all as more specifically set forth in said Agreement, which said Agreement is incorporated
in this Memorandum by this reference.
The term is five (5) years, beginning , 2025, and ending
, 2030, on the same terms and conditions contained in the Agreement.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement's provisions. In the event
of conflict between this Memorandum and the Agreement, the Agreement shall control.
Execution hereof constitutes execution of the Agreement itself.
[SIGNATURES ON NEXT PAGE]
Concession Agreement - KIT at the Library, Inc. Exhibit 1-1
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum as
of the date first written above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH ("City"),
a California municipal corporation and
charter city
Date:
Bv:
Grace K. Leung
City Manager
CONCESSIONAIRE: KIT at the Library,
Inc., a California stock corporation
Date:
By:
Eunice Hwang
Managing Member
Concession Agreement - KIT at the Library, Inc. Exhibit 1-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of } ss.
On 20 before me,
Notary Public, 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 signatures(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)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of } ss.
On 20 before me,
Notary Public, personally appeared
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 signatures(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)
Concession Agreement - KIT at the Library, Inc. Exhibit 1-3
ATTACHMENT "A"
PREMISES
Concession Agreement - KIT at the Library, Inc. Exhibit 1-4
Exhibit A
I
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Kit at the Library, Inc.
FV00001336
39 Blossom, Irvine, CA, 92620
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Kit at the Kit at the Library, Inc.
Library, Inc.
39 Blossom 1000 Avocado Avenue
Irvine
Newport Beach
CA
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92620
92660