HomeMy WebLinkAboutC-7769-1 - Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to RepurchaseBatch 5562657 Confirmation
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
THE IRVINE COMPANY LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
111111111111111111111111111111111111111111111111111111111111111 NO FEE
* $ R 0 0 1 1 3 2 6 5 0 9 S*
2019000509265 3:26 pm 12105119
90 SCS D01 6
0.00 0.00 0.00 0.00 15.00 0.00 0.000.000.00 0.00
SPACE ABOVE LINE FOR RECORDER'S USE ONLY
This document is exempt from filing fees per
Govt. Code ' ; recorded fees per Govt.
and i
Code §27383 s exempt from Document
Transfer Tax per Rev. and Tax. Code
§11922
SECOND AMENDMENT TO
DECLARATION OF SPECIAL LAND USE RESTRICTIONS
THIS SECOND AMENDMENT TO DECLARATION OF SPECIAL LAND USE
RESTRICTIONS (this "Amendment") is executed as of this ` day of Pey_ewkAr , 2019
("Effective Date") by and between THE IRVINE COMPANY LLC, a Delaware limited liability
company, as successor -in -interest to 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. Declarant and Grantee executed that certain Declaration of Special Land Use
Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase recorded May 8, 1992
as Instrument No. 92-304757 in the Official Records of Orange County, California, as modified by
that certain amendment recorded November 24, 2010 as Instrument No. 2010-634195, (collectively,
the "Declaration"). Capitalized terms used herein that are not otherwise defined herein shall have
their respective meanings as set forth in the Declaration.
B. The Declaration encumbers that certain real property owned by Grantee and more
particularly described on EXHIBIT A attached hereto and made a part hereof (the "Land').
C. Grantee desires to make certain alterations to the Land and to construct, maintain and
operate a lecture hall, in a separate building on the Land, for use by Grantee solely to conduct library,
cultural, training, educational, informational, entertainment, civic and community focused
programming as well as for programming of library support groups, such as the Friends of the
Newport Beach Public Library and the Newport Beach Public Library Foundation (the "Lecture
Hall"), and Declarant is willing to approve of such alterations upon the satisfaction of certain
conditions as more fully set forth below.
https:Hgs.secure-recording.com/Batch/Confirmation/5562657 12/05/2019
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
THE IRVINE COMPANY LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel
SPACE ABOVE LINE FOR RECORDER'S USE ONLY
This document is exempt from filing fees per
Govt. Code' recorded fees per Govt.
Code §27383 and is exempt from Document
Transfer Tax per Rev. and Tax. Code
§11922
SECOND AMENDMENT TO
DECLARATION OF SPECIAL LAND USE RESTRICTIONS
THIS SECOND AMENDMENT TO DECLARATION OF SPECIAL LAND USE
RESTRICTIONS (this "Amendment") is executed as of this ft` day ofGevn�9QI , 2019
("Effective Date") by and between THE IRVINE COMPANY LLC, a Delaware limited liability
company, as successor -in -interest to 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. Declarant and Grantee executed that certain Declaration of Special Land Use
Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase recorded May 8, 1992
as Instrument No. 92-304757 in the Official Records of Orange County, California, as modified by
that certain amendment recorded November 24, 2010 as Instrument No. 2010-634195, (collectively,
the "Declaration"). Capitalized terms used herein that are not otherwise defined herein shall have
their respective meanings as set forth in the Declaration.
B. The Declaration encumbers that certain real property owned by Grantee and more
particularly described on EXHIBIT A attached hereto and made a part hereof (the "Land").
C. Grantee desires to make certain alterations to the Land and to construct, maintain and
operate a lecture hall, in a separate building on the Land, for use by Grantee solely to conduct library,
cultural, training, educational, informational, entertainment, civic and community focused
programming as well as for programming of library support groups, such as the Friends of the
Newport Beach Public Library and the Newport Beach Public Library Foundation (the "Lecture
Hall"), and Declarant is willing to approve of such alterations upon the satisfaction of certain
conditions as more fully set forth below.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged by Grantee and
Declarant, the parties hereto agree as follows:
1. Lecture Hall.
1.1 Amendment to Exhibit 2. Exhibit 2 of the Declaration is hereby amended
to permit up to three (3) buildings on the Land, to allow for the construction and use of the Lecture
Hall and any related improvements solely for the Intended Use (as defined below).
Commencement of construction shall occur within a reasonable time, and the Lecture Hall and any
related improvements shall be installed within ten (10) years from the Effective Date. The
Maximum Gross Floor Area of the Lecture Hall shall not exceed 10,000 square feet, and the
Maximum Gross Floor Area of all buildings on the Land shall not exceed 74,000 square feet nor
exceed fifty percent (50%) Maximum Floor Area Ratio. The construction, maintenance, operation
and use of the Lecture Hall and related improvements shall be subject to all other terms and
conditions of the Declaration (including, without limitation, obtaining Declarant's separate
approvals pursuant to Sections 2.2 and 2.5(b) of the Declaration).
1.2 Use of the Lecture Hall. Declarant expressly agrees that the use of the
Lecture Hall by Grantee to conduct library, cultural, training, educational, informational,
entertainment, civic and community focused programming as well as for programming of library
support groups, such as the Friends of the Newport Beach Public Library and the Newport Beach
Public Library Foundation (collectively, the "Intended Use"), are uses commonly associated with
public libraries, as described in Section 2.1(a) of the Declaration, and these uses do not compete
with the retail and commercial facilities in the Center. Grantee may also from time to time allow,
and charge reasonable fees for, such uses of the Lecture Hall, and such other uses of the Lecture
Hall that Grantee determines in its reasonable discretion are complimentary to the use of the Land
as a free, public library and will not interfere with the use of the Land by Grantee's library patrons
and available parking for such library patrons; provided such other uses, in Declarant's reasonable
discretion, do not materially compete with the retail and commercial facilities in and around the
Center, and in no event shall the Lecture Hall be used as a commercial banquet hall or conference
center.
1.3 Parking. The number of parking spaces located on the Land and available
for public use is currently 172. Such number of parking spaces available for public use shall not
be reduced without the prior written consent of Declarant as described in Section 2.2(a) of the
Declaration.
2. Effect of Amendment. Except as specifically modified pursuant to the terms of
this Amendment, the terms and conditions of the Declaration shall remain unmodified and in full
force and effect and the Restrictions therein defined shall be binding upon and run and pass with
every portion of the Land and Improvements. In the event of any inconsistencies between the
terms of this Amendment and any terms of the Declaration, the terms of this Amendment shall
govern and prevail.
3. Reaffirmation of Obligations. Declarant and Grantee each hereby acknowledge
and affirm the Restrictions contained in, and their respective obligations under, the Declaration as
amended by the provisions of this Amendment, and that this Amendment shall be binding upon,
and enforceable against, Declarant and Grantee in accordance with its terms.
4. Counterparts. This Amendment may be executed and acknowledged in any
number of counterparts, all of which executed and acknowledged counterparts shall together
constitute a single document. Signature and acknowledgement pages may be detached from the
counterparts and attached to a single copy of this document to physically form one document,
which may be recorded.
[Signatures on following page]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
DECLARANT:
THE IRVINE COMPANY LLC,
a Delaw,tiite limited liabilitv comr
By: iv- - , — I v -\-�
Jia"i6 ( 'T rrh Ill�1
Se•►��r dxe �y�.;r Go�tr,�►,o^t efut,z,.o
By: ✓
D. 171a,,jel-z-sV(G
4s5-51"fi .Serf
GRANTEE:
CITY OF NEWPORT BEACH,
a California municipal corporation
By: Ak
Diane B. Dixon 4yor
ATTEST:
�d4
J. 6�f�
Leilani Brown, City Clerk
APPROVED AS TO FORM:
By:
Aaron C. Harp, City Attorney
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 oft
On S)ejLoyAh)!? ( Lf , Zo i I , before me, Mo&'& Sq, IC—ma—
(insert name of notary) t i
Notary Public, personally appeared bah ;0 T M i \ \yi e�hd S " Y'� 'b'
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ise9D
subscribed to the within instrument and acknowledged to me that he/she executed the same in
his/her e> authorized capacity(ies), and that by his/he t ei 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.
. , MONA SALAMA
WITNESS my hand and official seal. h ; Notary Public • California
W - Orange County
Commission S 2292794
My Comm, Expires Jul 10, 1023
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
On , before me,
(insert name of notary)
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 signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
That certain real property in the City of Newport Beach, County of Orange, State of California,
described as follows:
Parcel 2, in the City of Newport Beach, County of Orange, State of California, as shown on Parcel
Map No. 90-361, recorded in Book 270, Pages 15 to 18, inclusive, of Parcel Maps, in the Office
of the County Recorder of said County.
APN: 442-014-25 & -26
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
Recorded In Official Records, Orange County
Tom Dal, Clerk -Recorder
IiN�IIq�Nlll�lll���l�� NO FEE
2010000617704 3:55 pm 11/18/10
18 Sec4 A17 3
0.000
.00 0.00 0.00 8.00 0.00 0.00 0.00
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
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 October 29, 2010 and shall be effective as of
October 29, 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 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 supersede and control.
IN WITNESS WHEREOF, this instrument is duly executed this 29th day of October, 2010.
DECLARANT:
THE IRVINE COMPANY LLC,
A Delaware Limited Liability Company
By:
Daniel H. Youn
Its: Executive Vice Pesident
:
BY
Brigid . McMahon
Its: Assistant Secretary
GRANTEE:
CITY OF NEWPORT BPACH
A CaliforniaMuni 'pa orporation
By: c%
Its: Mayor
APPROVED AS TO FORM:
EOF lj E CITY ATTORNEY
David R. Hunt
City Attorney
City of Newport Beach
ATTES
Leilani Brown
City Clerk
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 person(.sf whose name(s`f is re subscribed to the within
instrument and acknowledged to me that tie he/they executed the same in hi er/their
authorized capacitypesj and that by his er/their signaturgW on the instrument the persol*i '
or the entity upon behalf of which the personk'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
O IG GROSSMAN
Commission *1736093
Notary Public - California
Orange County
STATE OF CALIFORNIA MyCon**T' .Apr ►3°.'2011
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 persop whose name Is are subscribed to the -,within
instrument and acknowledged to metha h sh hey executed the same in hi /h /their
authorized capacitykissj�and that by hi he heir signaturgKon the instrument the persoU(O,
or the entity upon behalf of which the perso"cted,. 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 11
Commission * 1736093
s Notary Public - California
Orange County
. WCOMMID"esApr30,2011
I�eco:i ftequestdh Document was electronically recorded by
Y Fidelity National Major Accounts
ideiity Notioil.9
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
Recorded In Official Records, Orange County
Tom Daly, Clerk -Recorder
111 1 11 111 NO FEE
2010000634195 04:30pm 11/24110
66 406 A17 6
0.00 0.00 0.00 0.00 15.00 0.00 0.00 0.00
(SPACE ABOVE THIS UNE FOR RECORDERS 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
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 Alvveik , 2010 and shall be effective
as of1Ya,j*1,1, 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
L
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.
NOW THEREFORE, Declarant and Grantee hereby amend the Existing Declaration
as follows:
1. Amendment to Exhibit B. Exhibit 6 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 2e day of October, 2010.
DECLARANT: GRANTEE:
THE IRVINE COMPANY LLC, CITY OF :NEWPORT BEACH
A Delaware Limited liability Company A.Califomia Municipal Corporation
By: By:
Daniel N. Youn .
Its: gxecutive Vice sideLt Its: Mayor
j�
By:
5rigid .. McMahan
Its: Assistant Secxetarlr
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 Exis Ing 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 .ZZday of A4112yk6
20_.
DECLARANT: GRANTEE:
THE IRVINE COMPANY LLC,
A Delaware Limited Liability Company
By:
Its: Executive Vice President
By:
Its: Assistant Secretaly
CITY OF NEWPORT BEACH
A California Munici nal Corporation
By:
Its: Mayor
L
APPROVED AS TO FORM:
OM OF HE CITY ATTORNEY
David R. Hunt
City Attomey
City of Newport Beach
ATTEST:
As
,.. • ver 9.
i_eiiani Brown
City Clerk
City of Newport Beach
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 persogK whose namefgKlore subscribed to the within
instrument and acknowledged to me that he he/they executed the same in hl er/thelr
authorized capacitypresf his e
and. that by r/their signature,' on the instrument the persor4
or the entity upon behalf of which the personWacted, 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
Commissfon # 1736693
NofaryPublic-Catifouga
ii orange county
STATE OF CALIFORNIA 7 -------
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 persog*-whose name"are subscribed to th within
instrument and ackfiowledged to me tha sph /they executed the same in hi; heir
-authorized capacity and that by herr signatutWATan the instrument' the persorfW,
or the entity upon behalf of which tate personf;3 . actedexecgied the instrument.
t 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
jam MISS" �
". CommfasfaR +# 1.73G�3
;Notary F*ft - Catfrointo
oroiap c6unty
• � ;3fi,�1,11�1 "
9Z 304T5? AddL; .
Vmm &warded Mail To: Pas 3-
um-
tmE1 C11 o:
WE IRVINE CaMPAMr 000
550 Newport Center Drive am MAY 81W
Newport Eeacb, CA 92660 A& OlbGiilegcm lie FWw
Aecoreer D.LT.
a� PC,
H i
Attention: Lee Milligan StAr S
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Space above this line for Recorder's use
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DECIARATION OF SPECIAL LAND USE RESTRICTICNS, RIGHT
OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE
t
• TA3LE OF CONTENTS
DECLARATION OF SPECIAL LAND USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL, MORTGAGE LIEN Aim
OPTION TO REPURCHASE
ARTICLE 1.
GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . .
1
1.1
Grantee's Representations and Warranties. . . . . . . .
1
1.2
Statement of Declarant's General Purposes. . . . . .
2
1.3
Definitions. . . . . . . . . . . . . . . . . . .
2
(r.) 'Benefitted Property" . . . . . . . . . . . . . .
2
(b) "Center" . . . . . . . . . . . . . . . . . . . . .
2
(c) "Declarant" . . . . . . . . . . . . . . . . . . .
2
(d) 'Effective Date" . . . . . . . . . . . . . . . . .
2
(e) 'Final Nap" . . . . . . . . . . . . . . . . . . .
2
(f) "Grantee' . . . . . . . . . . . . . . . . . . . .
2
(g) The 'Gross Floor Area" . . . . . . . . . . . . . .
3
ARTICLE 2.
SPECIFIC RESTRICTIONS . . . . . . . . . . . . . . . . . . . .
3
2.1
Specific Facilities . . . . . . . . . . . . . . . . . . .
3
(a) Improvement and Continued Use. . . . . . . . . . .
3
(b) Construction. . . . . . . . . . . . . . . . .
3
(c) Commencement and Completion. . . . . . . . . . . .
3
(d) Grading . . . . . . . . . . . . . . . . . . . . . .
4
(e) Utilities, Streets and Public 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 Nap 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 . . . . . . . . . . . . .
8
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�
(d) Repurchase Price . . . . . . . . . . . . . . . . .
12
11
(d) Repurchase Price . . . . . . . . . . . . . . . . .
12
(e) Repurchase Escrow Terms. . . . . . . . . . . . . .
13
(f) Irrevocability. . . . . . . . . . . . .
13
(g) Warranties. Plans and Specifications. . . . . . .
13
5.4
Arbitration Procedure. . . . . . . . . . . . . . . . . .
24
5.5
Waiver.
14
5.6
Costs of Snforcemnat. _
15
5.7
Rights of Lenders. . . . . . . . . . . . . . . . . . . .
15
5.8
Advances. . . . . . . . . . . . . . . . . . . . . . . .
15
ARTICLE 6. CENEBAL PROVISIONS. . . . . . . . . . . . . . . . . . . . .
15
6.1
Unavoidable Delay. . . . . . . . . . . . . . . . . . . .
15
6.2
Continuous Operations. . . . . . . . . . . . . . . . .
16
6.3
Covenants to Run With the Land; Term. . . . . . . . . .
16
(a) Covenants to Run With the Land. . . . . . . . . .
16
(b) Tera. . . . . . . . . . . . . . . . . . . . .
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 Lav. . . . . . . . . . . . . . . . . . . . . .
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
11
Specific Facilities..................... 2
Subordination Agreement ................. 3
ift
yn:
e
DECLARATION OF SPECIAL LAND USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND
OPTION TO REPURCHASE
THIS DECLARATION ("Declaration") is made as of March 11, 1992, by and 'mw
between THE IRVINE COMPANY, a Michigan corporation ("Declarant'), and the CITY
OF NEWPORT BEACH, a California municipal corporation ('Grantee'), with reference 1
to the following facts: ` 1
A. Grantee and Declarant have entered into an Exchange Agreement and _l
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 Map No.
90-361, recorded in Book 270 , Pages 15 to 18 , inclusive, of
Parcel Maps, Records of said County.
B. Grantee and Declarant have also entered into a Transfer Agreement and s'
Escrow Instructions by which Grantee is acquiring from Declarant real property I
adjacent to and contiguous with the Exchange Land which real property is situated
in the City of Newport Beach, County of Orange, State of California ('Transfer
Land") and is described as follows:
The northeasterly one-half of Parcel 2 as shown on Parcel Map No.
90-361, recorded in Book 270, pages 15 to 18 , inclusive, of
Parcel Maps, Records of said County.
C. In connection with such 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 AC0OWLEDGES, 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 TINE FOR ANY PURPOSE NOT
OTHERWISE PERMITTED HEREIN; (d) THE LIKELDIOOD THAT ANY BREACH WILL OCCUR AND
THAT DECLARANT WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR
NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (e)
VITHOUT 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 SUNS 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 CHANCES IN VALUES; (h) DECLARANT AND GRANTEE
ACKNOWLEDGE I;LAT 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 GRANM- . AND GRANTEE'S UNIQUE SRSLiS.
EXPERTISE AND SUITABILITY IN CONSTRUCTION AND OPERATION OF THE SPECIFIC
FACILITIES DESCRIBED BELOW, DECIARANT VOUID NOT HAVE CONVEYED THE LAND TO
"MTEE, BUT VOUID HAVE RETAINED THE BENEFITS OF OWNERSHIP. INCLUDING FUTURE
APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND VAUANTIES.
DECIARiURT 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
master 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 atrict 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 landownings, 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 EXHIBIT _
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.
(b) "Center" shall mean the office, hotel, recreational,
retail and residential and other use area 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 sl•acifically assign in writing the right to
enforce these Reb`rictions, 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 Crantee identified above and each
and every suczessor, 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 performance
of an obligation. Without limiting the generality of the foregoing, if Grantee
leases all or any of its interest in the Land or the Specific Facilities, both
the lessor end lessee under such lease shall be responsible as principals (and
not sureties) for compliance with all the terms 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 columns, stairs, elevators, escalators,
or other interior construction or equipment.
ARTICLE 2. SPECIFIC RESTRICTIONS.
2.1 Specific Facilities.
(a) Improvement and Continued Use. Grantee represents and
agrees that Grantee shall cause the Land to be improved only with the specific
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 r.olely for a public library with related parking and no
other use, notwithstanding that other uses may be permitted under applicable
zoning ordinances, and in full accordance with all of the terms of this
Declaration. Use as a public library may include all uses and activities
commonly associated with public libraries now and in the future including any
form of information storage and retrieval such as video tapes, books, optical and
magnetic disks or other technologies for information storage and retrieval.
Grantee may charge fees, rentals and late charges for loan or use of information
media provided that fees, rentals and charges do not exceed the cost of operation
of the public library facility. No portion of the Land, or any improvements
thereon, or any portion thereof, shall be used for retail, commercial, quasi -
retail or quasi -commercial facilities that materially compete with the retail and
commercial facilities in the Center or otherwise 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 set forth in Section 2.2.
Construction and installation shall be coeaenced 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 "Unavoidablef
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
shail have commenced construction of the Specific Facilities on the Lnd, and
(ii) within the time specified on EXXHIBIT 2 as the "Completion Date," measured
from and after the Effective Date of this 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
` governmental entity or agency a valid Certificate of Use and Occupancy for the
Specific Facilities. Grantee shall cosma,..e 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 Land, Grantee shall submit to Daclarant for its approval two
sets of plans and specifications for grading, terracing and filling of the Lend
J
and for construction of other similar improvements in, on or about the Land.
(e) Utilities. Streets and Public Improvements.
U
(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.
(11) In addition to any such facilities constituting a
r
part of the Specific Facilities or the Other Improvements, Grantee shall
construct and install or pay for construction and installation of all streets,
r
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) Landscaving. In addition to the landscaping constituting
j
a part of the Other Improvements, if any. Grantee shall landscape the Land as
necessary to create a first class attractive condition, and in a manner
consistent with the existing landscaping in the Center. Grantee shall submit toI
Declarant for its approval two sets of plans and specifications for the
landscaping on the Land.
(g) Alterations and Additions. Grantee shall not make any '
substantial additions, alterations or other modifications ("alterations") of or
to the exterior of the Specific Facilities or any 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, the "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 tte concept, plans and specifications
for the exterior elements of such Inpriveuents 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 tbis Declaration. Grantee agrees that
the Specific Facilities, the Other Improve cents and all other landscaping and
improvements on the Land shall be designed, constructed and installed to provide
for a library with complementary landscapinf. 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 plana and specifications. If
4
approved by Declarant, such approval shall be endorsed on such plans and
specifications and one set of such documents bearing Declarant's approval shall
be returned to Grantee within such thirty (30) working day period. If Declarant
does not approve such plans and specifications. Declarant shall notify Grantee
of its reasons for not approving such plans and specifications and Grantee suall,
within forty five (45) working days after receiving notice of Declarant's
disapproval, submit new plans and specifications for Declarant's approval.
eailurs 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 architectural or engineeYing design or the feasibility of
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 May 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 Nap. 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 the 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 like. 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) Approvals of Applications. 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)
n
U
IJ
1
• day period and Declarant's continued failure to approve or disapprove for fifteen
(15) days after Grantee's written notice that Declarant baa failed to approve or
disapprove as required hereunder &hall be deemed 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.
U
2.6 Bonds. Before the commencement of any of the work required
this Article 2, Grantee shall furnish to Declarant true copies of any and
Uunder
all labor and material bonds and faithful performance bonds, if any, required of
U
Grantee by any governmental agency concerning such work.
2.7 Transfers.
'
(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
'
(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
_l
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, (i)
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
Transfere").
.'o
2.8 Subordination or Comsent to Transfer for Public
Financine. Subject to the following provisions and the provisions of Section 5.7
hereof, Declarant will either consent to a transfer described in Section 2.7(b)
above, without exercise of Declarants right of first refusal contained in Article
4 and the option 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 (900) of the fair market value
of the Land and any improvements thereon, valued taking into account the
restrictions contained in this Declaration, and such loans and/or public
obligations are at commercially reasonable interest rates and otherwise contain
commercially reasonable terms and conditions. Grantee will provide Declarant
with appraisal information from a reputable M.A.I. appraiser, from the Office of
the Assessor of Orange County or from an institutional lender reasonably
satisfactory to Declarant to verify that the total. loan -to -value rate does not
exceed ninety percent (900). 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 'assignment' 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 inA-
substantially the form attached hereto as E)WIBIT 3 or a consent to transfer_.
pursuant to issuance of a public obligation:
I
(a) Copy of Loan 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 Laru1 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 improveme:it 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
Grantee, other utility easements reasonably necessary to serve the Land, and
other matters approved by Declarant;
(c) Disbursement Instructions. A copy of the executed
financing instruments, loan agreement or other agreement pertaining to the
disbursement of funds, which must provide in a manner satisfactory to Declarant
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 Reeional 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,is 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 set
forth in MWIBIT I of the Exchange Agreement.
2.10 MacArthur Boulevard Dedication and Maintenance. Declarant and
jCity 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 Declarant 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 commencement of
construction for expansion of MacArthur Boulevard.
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ARTICLS 3. GEMAL RESTRICTIONS.
3.1 Unavoroyed Develooment or Use. Unless expressly approved by
Declarent, 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 on the land not in full compliance with all
requirements of the law, this Declaration and any other covenants, conditions and
i.estrictions 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 as 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-xn, 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 and Uses. No trailer, camper, bus,
automobile, motorcycle, boat or other vehicle or equipment ("vehicle") shall be
permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 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:
8
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14
(a) Any public or private nuisance;
(b) Any vibration, swiss, sound or disturbance that is
objectionable due to intermittence, beat. frequency, shrillness or loudness;
(e) Any direct lighting which is not shielded and confined
within site boundaries;
(d) Any emission of odors, noxious, caustic or corrosive
matter, whether toxic or nontoxic;
(e) Any litter, dust, dirt or ash in excessive quantities;
(f) Any use of a structure of a temporary character, trailer,
tent, shack, garage, barn or other outbuilding except for such structures
maintained on the Land during a period permitted for construction or
reconstruction of improvements;
(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.B."
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 tha Land, unless expressly approved by
Declarant which approval may be withheld by Declarant in its sole discretion.
3.8 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 may be
required for development of the Land with the Specific Facilities. Grantee shall
obtain Ueclarant's consent prior to placing such application on the agenda of
Grantee's d!-screcionary 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.
14
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3.9 Indemnity. Declarant and Declarant's past and present
employees, officers, directors, shareholders, agents and representatives and its
and their respective successors and assigns (collectively, the 'Indemnitees')
shall not be liable for any loss, 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 conveyance of the land
or improvements thereon or any portion thereof or interest therein, including,
tithout 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 defect 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 contaminants 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) arty
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 lots, damage,
or injury of Grantee, and agrees to indemnify, defend and hold harmless Declarant
and its property, and the other Indemnitees from all loss, liability, damage,
costs and expenses (including attorneys' fees) arising from or related to any
such loss, damage, injury or claim, whether incurred or made by Grantee or any
other person(s). The foregoing waiver and indemnity shall apply to a claim or
action brought by a private party or by a governmental agency or entity under any
statute or common law now or hereinafter in effect and is intended to apply with
respect to loss, damage, injury or claim arising before or after the lease, sale
or other conveyance of any portion or all of the Land or any improvements
thereon. With respect to design, construction methods, materials, locations and
other matters for which Declarant has given or will give its approval,
recommendation or other direction, the foregoing waiver, indemnity and agreement
shall apply irrespective of Declarant's approval, recommendation or other
direction. Notwithstanding anything to the contrary above, nothing contained in
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 FI,2ST REFUSAL. Except with regard to
"Permitted Transfers' described in the Section above entitled 'Transfers if,
at any time prior to the twenty fifth (25ti,) 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 or, which Grantee will be willing to
transfer. If Declarant, within sixty (0) days after receipt of Grantee's
notice, indicates in writing its agreement to purchase said Interest for the
price and on the terms stated in Grantee's notice, then Grantee shall transfer
and convey the Interest to Declarant for the price and on the terms stated in
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 one
hundred eighty (180) days after Grantee's notice, then any further transactions
(including a transaction on the same price and terms previously submitted to
10
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Declarant) shall 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. 9292M.
5.1 Default and General Remedies. In the event of any breach,
--solation or failure to perform or satisfy any of the Restrictions which has not
been cured within the applicable cure period as set 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 low or
equity, whether or not set forth herein. Unless a cure period is otherwise
specifically designated, a cure period shall commence when written notice is
given to Grantee of a violation hereunder and shall end ten (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 maximum extent allowable
by law, all remedies provided herein or by law or equity shall be cumulative and
not exclusive; provided, however, that except as provided in the following
sentence in the event Declarant elects to exercise any remedy provided for in
Section 5.3 hereof based upon a particular violation of the Restrictions, such
remedy shall be Declarant's sole and exclusive remedy for such violation of the
Restrictions. Notwithstanding the foregoing, Declarant's remedies for a
violation or breach of Section 3.10 (Indemnity) shall be cumulative with and in
addition to its remedies for other violations or breaches under this Declaration.
(a) Damages. Declarant may bring a suit for damages for any
compensable breach of or noncompliance with any of the Restrictions, or
declaratory relief to determine the enforceability of any of the Restrictions.
(b) Equity. It is recognized that a particular or ongoing
violation by Grantee of one or more of the foregoing Restrictions may cause
Declarant to suffer material injury or damage not compensable in 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 Option to Repurchase the Land. Upon any proposed, attempted or
actual "transfer" in violation of the provisions of Section 2.7 above and, in
addition to the foregoing remedies described in Section 5.1, upon any violation
of the Restrictions itemized in Sections 2.1-;a) ('Improvement and Continued Use')
or 2.1(c) ('Commencement and Completion"), Declarant, in its sole option and
discretion, shall be entitled to repurchase the Land as provided below.
(Declarant shall not be entitled to repu-;chase the Land unless a proposed,
attempted or actual transfer in violation of Section 2.7 has been initiated, s
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 0otion. 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, made,
assumed, consented to or requested by Declarant, its successors or assigns.
excluding any mortgage, dead of trust, any natter related to issuance of any
public obligation or similar Instrument to which Declarant has consented without
exercise of the Enforcement Rights or to which Declarant has subordinated the
Enforcement Rights pursuant to Section 2.8 above;
(iv) Matters shown as printed exceptions in the standard
fors California Land Title Association owner's policy of title insurance.
(v) Noninterfering easements for utilities used in
connection with the improvements constructed on the Land.
(b) Exercise of Repurchase ODCiOn. 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, (11)
within ninety (90) days after Declarant receives actual notice of any transfer
or attempted transfer in violation of any provision in Section 2.7, (iii) within
ninety (90) days commencing thirty (30) days after delivery of notice to Grantee
of violation of the Restrictions itemized in Section 2.l(a) if such violation has
continued unabated, or (iv) within one hundred eighty (180) days of the
respective commencement or completion dates (as such dates may be extended
pursuant to the terms of this Declaration) in the event of Grantee's violation
of Section 2.1(c) above. For purposes of this Section 5.3, Declarant's actual
notice shall mean notice 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's right to later notify Grantee of a new violation
and exercise the option. Any rescission of notice of exercise of this option
shall not constitute waiver of Declarant's right to exercise the option again if
a later event causes the option to become exercisable.
(c) Expiration and Quitclaim. Unless 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 deed satisfactory to
Declarant relinquishing all of its rights under the option to repurchase portion
of this Declaration.
(d) Repurchase Price. Declarant's purchase price for the Land
upon its exercise of the option provided above, shall be the greater of:
(i) An amount including the following:
(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 (5%) per
annum or (B) the appraised fair market value of the Land with the use restricted
to the use for which Declarant notifies Grantee at the time of exercise of the
option that it intends to use the Land. Declarant shall notify Grantee that it
intends to use the Land either for commercial office or retail use at the time
of delivery of the notice of exercise or any time thereafter (Failure of
Declarant to specify a use in conjunction with delivery of a notice of exercise
of the option shall not invalidate or otherwise affect exercise of the option.).
The CPI adjustment 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-
Anahein-Riverside Metropolitan Area (all items) compiled by the United States
Department of Labor. Bureau of Labor Statistics, based upon 1982-84 as 100;
provided, however, that if the CPI is modified or changed, then the CPI shall be
a converted or substituted index as determisud 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 Useable
Improvements shall be determined using an income method 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 reimbursed 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 (58) 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
$6,000,000.00 and provided that the amount payable to Grantee under this
subparagraph (ii) shall be reduced and offset by any and all funds held for the
benefit of any holders of public obligations other than funds held to pay the
costs of issuance, if any.
(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 Grantee through the foregoing escrow. Any
additional amount necessary to satisfy such indebtedness shall be paid by
Grantee. Grantee and Declarant shall each pay one-half of the escrow fees.
Grantee shall pay for documentary tax stamps, for recording the deed, and for a
California Land Title Association standard form owner's coverage policy of title
insurance in the amount of the purchase price showing title to the Land vested
in Declarant or its assigns free and clear of all liens, encumbrances or other
title exceptions other than those set forth in this Declaration. Any other costs
or expense shall be allocated between thu parties in the manner customary in
Orange County, California.
(f) Irrevocability. Ilia 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, plans 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 Useable Improvements within
thirty (30) days after the data Declarant gives Grantee notice of exercise of the
option, then the following arbitration procedure shall apply:
(A) Declarant shall within an additional thirty
'30) days, at Declarant'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 ("Doclarant I a Appraisal'). The term "independent
qualified appraiser" as used in this Section shall mean a professional
independent appraiser who is a Member of the American Institute of Real Estate
Appraisers (R.N. or M.A.I.), the Society of Real Estate Appraisers
S.R.P.A., or S.R.E.A.), the American Society of Appraisers (meeber 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').
If Grantee fails to deliver Grantee's Appraisal within the time provided, or if
Grantee's Appraisal of fair market value is lower than or equal to that contained
in Declarant's Appraisal, then Declarant's Appraisal shall constitute the final
and binding determination of the applicable fair market value.
[C) If Grantee's Appraisal is delivered to
Declarant within the 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 then 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 set 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
14
Restrictions shall be construed or bald to be a waiver of any succeeding or
Preceding breach of the sass or any other of the Restrictions. No waiver of any
breach or default of Grant@* hereunder shall be implied from any omission by
J
Declarant to take any actio: on account of such breach or default if such broach
or default persists or is repeated, and no express waiver shall affect a breach
or default other than an specified in said waiver. The conseut or approval by
n
%clarant to or of any act by Grantee requiring Declarant's consent or approval
,
shall not be deemed to waive or render unnecessary Declarant's consent or
�I
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
any provision of this Declaration, the party prevailing in such action shall be
entitled to recover from the losing party all of its costs, including court costs
and reasonable attorneys' fees.
'
5.7 Rights of lenders. No breach or violation of the Restrictions
shall defeat or render invalid the lien of any mortgage, deed of trust or similar
instrument securing a loan 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
I
r
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
i
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 ad--nces 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, the Other Improvements and any other
related improvements or other work as provided for in this Declaration caused by
acts of God, war, inability to obtain labor or materials or reasonable
substitutes therefor, or other similar matters or causes beyond the reasonable
control of 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, houaver, 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
. ._7G'7SX'P9,+1►P.�n9s��-.n..,.:.._t..rl7XeaE.aef,+vw.s.�..,., +y.n.w.+e.�...w. -
Grantee or because of any inability of Grantee to obtain funding from any source.
Without limiting the generality of the foregoing. in no avant 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 time be
deemed to have occurred unless Grantee shall have given written notice to
Declarant within fifteen (15) days following any such delay, setting forth the
facts giving rise to such extension; 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 say, 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 Land 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
sane 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 .;.s provided in this Declaration concerning
(a) substitution of other real property as the Benefitted Property, (b) release
of any portion or all of the Land from this Declaration, (c) 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 the date hereof and record(s) a notice of
16
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termination of these Restrictions in the Office of the County Recorder of Orange
County. California. these Restrictions shall come and terminate and be of no
further force or effect as to Declarant and such property, effective as of dw
date of such recordation. IF
6.7 Notice. All notices, consents, requests, demands and other
communications provided for herein shall be in vritirg and shall be demand to
have been duly given if and when personally served or forty night (46) hours
after being sent by United States registered mail, return receipt requested.
postage prepared, to the other party at the following respective addremsms:
DECLARANT: THE IRVINE COMPANY
c/o IRVINE LAND MANAGEMENT COMPANY
Post Office Box I
Newport Beach. California 92658-8904
Attention: President/IlMC
GRANTEE: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92659.1768
or at such other address as Declarant or Grantee may designate to the other in
writing in accordance with the provision of this Section.
6.8 Governing Inv. This 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 remaining 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 Captions. The captions used herein are for convenience only and
are not a part of this Declaration and do not in any way limit or amplify the
terms and provisions hereof.
6.11 Entire Agreement. This Declaration, including Exhibits attached
hereto which are incorporated herein by this reference, constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof and
all prior and contemporaneous agreements, representations, negotiations and
understandings of the parties hereto, oral or written, are hereby superseded and
merged herein. The forgoing sentence shall in no way affect the validity of the
Agreement pursuant to which Grantee acquired the Land or any instruments executed
In connection therewith.
6.12 Gender and Number. In this Declaration (unless the context
requires otherwise), the masculine, feminine and neuter genders and the singular
and the plural include one another.
6.13 Time of the Essence. Tine is of the essence of each provision
of this Declaration in which time is an element.
17
7
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14
• • Is WITNESS WMEDF. the undersigned haw executed this Declaration
as of the date written below.
61��T�Q
.M.
THE IRVIU COMPANY.
CITY OF MwPoeT BEACH,
a Michigan corporation
s California munie pal corporation
By:r�/�t�
By•
Its: Ylse,��.��
I
Mayor
By:
ATTEST:
Its:
By:
I
Its:
MlEy Clark
APPRO
ED
O�a�R
By:
V
Its:
City Manager
GLOW
APPRO
TO FORM:
Fon
By:
r s:
C Attorney
STATE OF CALIFORNIA )
COUNTS[ OF ���) ).ss
On this,& ,reday of in the year 197A before me, the undersigned, a Notary
Public Im a d for said State, personald
_ and personally known to as
or proved to me on the bas s of satisfat'-�and
) to be the pers s r o
executed the within instrument ss .
respectively, on behalf of THE IRVINE COMPANY and acknowledged to me that s
corporation executed it. wo
WITNESS my hand and official seal.
Z.
Notary Public in and fo said State
ADOO a.an. 18
OFFXVISM
RKSWEEMEY
low
MW'X R C" M
ORIUM CCOM
W ounn.F,o.aaa.,ara
on= of Gua7ommh )
) ass
COUNTY OF ORhNGZ )
On Ifwrah 19. 1994, before so, the undersigned, a Notary
Public in and for the State, personally appeared Phil,,
known to me to be the Mayor, Robert L. Nvnn, known to a• to be the
City Manager, and Vanda a. Raaaio, known to as to be the City
Clark, on behalf of the CITY OF NZWPORT BEMM, which executed the
within instrument pursuant to governing lar and a resolution of its
board of directors and acknowledge to me that the CITY OF NEWPORT
BEMM executed it.
WITNESS ay hand and official ase
NM SEAL Notary Public or mWid State
aOMPA,c•aY O Ml►
WAWC "
EXHIBIT 1
To Declaration of Special Restrictions
Legal Description of "Benefitted 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 Land)
That portion of Block 93 of Irvine's Subdivision in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 1, Page
88 of Miscellaneous Records Haps 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 Reorder;
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 Road, all as shown on said
map of Tract No. 6015 through the following courses: North 80'14'38" West 91.45
feet to the beginning of a tangent curve concave northeasterly and having a
radius of 25.00 feet; thence along said curve westerly and northwesterly 38.16
feet through a central angle of 87'26149" 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 81'00'17" East; thence
along said curve northerly and northeasterly 38.16 feet through a central angle
of 87'26'49"; thence tangent from said curve North 78'27'06" East 69.97 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 47'34143" 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 89'17'26" to a point of reverse curvature with a curve concave
northeasterly and having a radius of 6072.50 feet, a radial line of said curve
from said point bears North 46'52'09" 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 45053146" 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 Rucorder, said corner being a point in
a non -tangent curve concave southeasterly and having a radius of 25.00 feet, a
redial line of said curve from said point 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 44'06114" 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 90'00100";
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
Mlblt I
L"161 D"ttrlpti- of "Smefited lrop"rtr-
ADop mDr.Dn l n.rtb 11. IMI
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on said sap filed in Book 21. Page 18 of Parcel Maps and along the boundrry of
Parcel 1 as shown on said sap filed in Book 54. Page 23 of Parcel Maps South
45'531460 East 68.09 feet to the beginning of a tangent curve eoneays masterly
and having a radius of 40.00 feet; thence continuing along said boundary and said
curve southeasterly 36.39 feet through a central angle of 52'071231 to the
northwesterly corner of Parcel 3 as shown on Parcel Map No. 64-706 filed in Book
192, Pages 1 and 2 of Parcel Naps in said Office of the County Recorder, a radial
Una of said curve from said corner bears North 83'461230 West; thence along the
boundary of said Parcel 3 and Parcel 2 as shown on said Parcel Map the following
courses: continuing along said curve southerly 26.44 feet through a central
angel of 37'52137"; thence tangent from said curve South 44'06'14" West 289.00
feet to the northeasterly corner of Parcel 1 as shown on a sap filed In Book 27.
Page 43 of Parcel Naps in said Office of the County Recorder, said 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 90'001001;
thence tangent from said curve North 45'53146" West 14.11 feet to the beginning
of a tangent curve concave southerly and having a radius of 25.00 feet; thence
along said curve northwesterly and westerly 39.27 feet through a central angle
of 90'00.00"; thence tangent from said curve South 44'06.14" Went 99.44 feet to
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
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 33'30'38" to the POINT
OF BEGINNING.
Parcel 2 (Fashion Island Shopping Center)
That portion of Tract 6015, in the City of Newport Beach, County of Orange, State
of California, as per nap filed in Book 239, pages 28 through 41, Miscellaneous
Maps, records of said County, lying within the following described boundary:
Commencing at the center line intersection of Santa Rosa Drive with Newport
Center Drive East as shown on said map; thence south 79'27.06" 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 78'27106" East, said curve being concentric with the center line of said
Newport Center Drive East; thence Southerly 1314.59 feet along said curve through
an angle of 48'22'31" to the beginning of a compound curve concave Northerly and
having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve
through an angle of 110'52124" 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 40'41'58" to the beginning of a compound curve
concave Southerly and having a radius of 897.00 feet; thence Easterly 2438.09
feet along said curve through an angle of 155'43157" to the beginning of a
compound curve concave Westerly and 1:avin3 a radius of 1557.00 feet; thence
Southerly 117.38 feet along said curve through an angle of 4'19'10" to the True
Point of Beginning.
mum I
Lgal Ftoyrrty-
AD FWF.DFL 2 M"rch It. IW
MEHIBIT 2
To Declaration of Special Restrictions
Requiresents for Specific Facilities
MWIREMFNfS FM 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*
Maxim= Floor Area Ratio: 50 percent
Commencement Date: 12 months from Effective Date
Completion Date: 36 months from Effective Date
* By setting forth any required minimus or maximum gross foot area above,
Declarant does not thereby represent or warrant that Buyer shall be able to
develop the Land for such density.
REQUIREMENTS FOR OTHER IMPROVEMENTS
Those improvements required by ExhtJit I to the Exchange Agreement.
Special s•euleues+
zd bit s
Specific ►Nllltlea
""Ob li, IMi
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•
MWIREMFNfS FM 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*
Maxim= Floor Area Ratio: 50 percent
Commencement Date: 12 months from Effective Date
Completion Date: 36 months from Effective Date
* By setting forth any required minimus or maximum gross foot area above,
Declarant does not thereby represent or warrant that Buyer shall be able to
develop the Land for such density.
REQUIREMENTS FOR OTHER IMPROVEMENTS
Those improvements required by ExhtJit I to the Exchange Agreement.
Special s•euleues+
zd bit s
Specific ►Nllltlea
""Ob li, IMi
EXHIBIT 3
To Declaration of Special Restrictions
Subordination Agreement
•
EXHIBIT 3
To Declaration of Special Restrictions
Subordination Agreement
S. -
' Lihan Recorded Mail To:
THE IRVINE COMPANY
550 Newport Canter Drive
Newport Beach, CA 92660
Attention: President/ILMC
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 CITY OF NEWPORT BEACH, a California municipal
corporation ("Owner"). owner of the "Land" (as defined below), and THE IRVINE
COMPANY, a Michigan corporation ("TIC"), declarant under the Declaration (defined
below).
II. ACKNOWLEDGMENTS
Owner has executed a Declaration of Special Land Use Restrictions, Right
of First Refusal, Mortgage Lien and Option to Repurchase (the "Declaration")
dated , 19_, and recorded on as Instrument No.
in the Official Records of Orange County California as an encumbrance on the
title of the real property described as:
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 obligations in connection with the Loan in
good faith and for value pursuant to an agreement with Owner, on which TIC is
relying and which is memorialized in the Loan Documents, that the proceeds of the
Loan will be expended solely for fin"ncio; or refinancing of construction of
certain improvements on the Iand, 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 +:imes a lien or charge upon the Land
prior and superior to certain enforcement rights and remedies of TIC under the
Declaration.
TIC and Owner agree that it is to their mutual benefit that Lender make the
Loan to Owner. This Agreement is made in consideration of the mutual benefits
special seottictlons
tahtblt I
s"bordlnatlar Acme tmtrcb It. 1992
e•
• to TIC and Owner resulting from the Loan and for other valuable considerstion,
the receipt and sufficiency of which is acknowledged by TIC and Owner.
Ill. SUBORDIRM.TION.
The Dead of Trust and any renewals or extensions thereof shall be and
remain at all times a lion or charge on the Land prior and superior to
Declarant's right of first refusal contained in Article 4 of the Declaration and
the option to repurchase contained in Section 5.3 of the Declaration,
(collectively, the "Enforcement 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 my
portion thereof whose title is acquired by foreclosure, trustee's sale, dead 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,
Lander'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 Deed 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" "O►iNER"
THE IRVINE COMPANY, CITY OF NEWPORT BEACH
a Michigan corporation
By: By:
Its: Its: Mayor
By: ATTEST:
I
Its: By:
Its:
APPROVED AS TO FORM:
By:_
Its: City Attorney
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2 Euborft"W" Asre"Not Yrch 11. 100
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STATS OF CALIFORNIA )
).ss
comyry OF )
On , 19_, before me, the undersiSmad, a Notary Public in
and for said State, personally appeared
and personally known to me (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 J
On , 19-, before me, the undersigned, a Notary Public in
and for said State, personally appeared
personally ]mown 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 rzsolution 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
Special aalsi0tim
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