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C-6301(B) - Civic Center, 100 - Lease Termination and Settlement Agreement 2019
Civic Center Lease Termination and Settlement Agreement Between the City of Newport Beach and Credit Union of Southern California This Civic Center Lease Termination and Settlement Agreement ("Agreement") is made and entered into as of the 20th day of December 2019 ("Effective Date"), by and between the City of Newport Beach ("City"), a California municipal corporation and charter city, and Credit Union of Southern California ("CUSC"), a California corporation. City and CUSC may be individually referred to herein as a "Party," and collectively referred to herein as the "Parties." RECITALS A. WHEREAS, the Parties entered into that certain Civic Center Lease Agreement dated September 22, 2015 and attached hereto as Exhibit A ("Lease"), whereby CUSC agreed to lease from City a five hundred seventy-nine (579) square foot retail space at 1000 Avocado Avenue, Newport Beach, CA 92660 ("Premises") for an initial term of five (5) years; B. WHEREAS, the City received a letter from CUSC dated July 19, 2018 whereby CUSC expressed their desire to terminate the Lease and buyout the remainder of the Lease; C. WHEREAS, the Parties now desire to provide for termination of the Lease, and the return of the Premises to City, prior to the current expiration date of the Lease, pursuant to the terms of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and CUSC hereby agree as follows: 1. TERMINATION. The Parties agree that in lieu of the original expiration date of September 22, 2020, the Lease shall terminate, for convenience, effective as of 5:00 p.m. on the Effective Date ("Termination Date"). CUSC shall quit the Premises, and shall surrender and return the Premises to City in clean and good condition and repair, as outlined in Section 3 below. CUSC shall also return to City all keys and other similar items provided to CUSC by City in connection with the Premises. CUSC also agrees that all of its personal property shall be removed from the Premises by the Termination Date. 2. LEASE TERMINATION FEE. In consideration of CUSC being relieved of further obligations under the Lease, City and CUSC agree that on or before the Termination Date, CUSC shall pay to City the amount of Seventeen Thousand Two Hundred One Dollars and 72/100 ($17,201.72) ("Final Payment"). City acknowledges and agrees that other than the Final Payment, all amounts due and owing to City by CUSC under the Lease have been paid. 3. RETURN OF PREMISES. CUSC shall, at its cost, remove any Alterations made to the Premises, and restore the Premises to a broom -clean condition prior to the Termination Date. CUSC shall remove any moveable partitions, machinery, equipment, furniture and trade fixtures previously installed by CUSC, provided that CUSC repairs any damage to the Premises caused by such removal. CUSC agrees to remove the equipment listed on Exhibit "C" of the Lease and any signage placed by the Tenant on, in or about the Premises. 4. RELEASE. CUSC agrees to release, unknown, against the City, its successors, officials, employees, agents and volunteers, the Lease through the Termination Date. discharge and waive any claims, known or assigns, its elected or appointed officers, arising out of or in any way connected with 5. INDEMNITY. CUSC agrees to defend and indemnify the City, its elected or appointed officers, officials, employees, agents and volunteers, from and against any and all loss or damage sustained by the City (and all expenses, costs and attorneys' fees of the City in any action or defense undertaken by the City to protect itself from such loss or damage) resulting from a breach by CUSC of the representations made herein. As noted in Section 26.6 of the Lease, CUSC's indemnification obligations to the City under Section 10 of the Lease survive the Termination of the Lease. 6. SURVIVAL. As of the Effective Date, neither Party shall have any further rights of obligations under or arising out of the Lease, except for those rights and obligations that survive the Termination pursuant to the Lease. 7. FINAL AGREEMENT. This Agreement shall constitute the final agreement and understanding between the Parties for the matter hereof. This Agreement may be modified only by further written agreement executed by and between the Parties. 8. REPRESENTATIONS. The Agreement is freely and voluntarily entered into by the Parties, who each had the opportunity to obtain the advice of independent legal counsel prior to signing this Agreement. Each party acknowledges that they have read this entire Agreement, that they had a full opportunity to have this Agreement fully explained by legal counsel of their choice, and that they fully understand and appreciate the words, terms, conditions, and legal significance of this entire Agreement. 9. EXECUTION. The Parties and the persons executing this Agreement on behalf of the Parties represent and warrant that they are duly authorized and empowered to so execute and deliver this Agreement, and that this Agreement is binding upon the Parties in accordance with the terms herein. 10. STANDARD PROVISIONS 10.1 Recitals. City and CUSC acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 10.2 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 10.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and any other attachments attached hereto, the terms of this Agreement shall govern. 10.4 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. All capitalized terms in this Agreement that are not defined herein will have the definition as provided in the Lease. In the event of any conflict between a provision in the Lease and a provision in this Agreement, this Agreement will control. 10.5 Amendments. This Agreement may be modified or amended only by a written document executed by both CUSC and City and approved as to form by the City Attorney. 10.6 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 10.7 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 10.8 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 10.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: By: -� Aaron C. Harp 16.1`.',1 City Attorney ATTEST: J�• I1, Date: / By: elYflAA Ac -o, Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date:_ ) -lb- 19 By: Gratan eung Cityager CUSC: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corporation Date:19; ;�o 1 j By: D Gunderson President/CEO , Date: 11 126 By: VVinan ._ Peterm ChiefcialOfficer Attachment: Exhibit A -- Lease Agreement EXHIBIT A Civic Center Lease Agreement Between the City of Newport Beach And Credit Union of Southern California This Civic Center Lease Agreement ("Agreement") is made and entered into as of the 22nd day of September, 2015 ("Effective Date"), by and between the City of Newport Beach ("City"), a California municipal corporation and charter city, and Credit Union of Southem California, (`Tenant"), a California corporation. RECITALS A. The Civic Center located at 100 Civic Center Drive, Newport Beach, California includes a newly constructed City Hall, City Council Chambers, a public park, and an expansion of the existing Central Library located at 1000 Avocado Avenue, Newport Beach ("Project"). The Project includes a five hundred seventy-nine (579) square foot retail space which is depicted on Exhibit "A" and incorporated herein by this reference ("Premises"). B. The City issued a Request for Proposals (No. 13-18) for Civic Center Retail/Service Space on November 21, 2012. C. After a careful evaluation process and a recommendation from the Library Board, the City selected Tenant to operate a financial institution, including an automatic teller machine (ATM) at the Premises. D. Tenant and City desire to enter into this Agreement to allow Tenant to operate a financial institution, intended to provide an automatic teller machine ("ATM") and full service Credit Union offering a wide range of financial products to library visitors and staff, city hall visitors and staff, and the general public in accordance with Tenant's customary terms and eligibility requirements ("Credit Union"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants herein contained, City and Tenant hereby agree as follows: 1. DEFINITIONS 1.1 General Definitions. As used in this Agreement, the following words and phrases shall have the following meanings: (a) Alteration - any improvements, additions, alterations, changes, or modifications of the Premises made by Tenant including, but not limited to fixtures and signage. designee. (b) Authorized City Representative - the City Manager or his/her (c) Common Area - the areas within the Project which are available for non-exclusive use by City, Tenant, the public, and other tenants and/or users. (d) Delivery Date - the date the City provides Tenant access to the space prior to Rent Commencement, in order for Tenant to prepare space for operation. (e) Expiration - the lapse of the time specified as the Term of this Agreement, including any extension of the Term resulting from the exercise of an option to extend. (f) Good Condition - neat and broom -clean and in substantially the same condition as of the Delivery Date of the Premises to Tenant, and is equivalent to similar phrases referring to physical adequacy in appearance and for use. (g) Law - any judicial decision, statute, constitution, ordinance, resolution, regulation, rule, administrative order, or other requirement of any municipal, county, state, federal, or other government agency or authority having jurisdiction over the parties hereto or the Premises. (h) Maintenance or Maintain - repairs, replacement, maintenance, repainting, and cleaning. (i) Person - one (1) or more natural persons, or legal entities, including, without limitation, partnerships, corporations, trusts, estates, associations, or a combination of natural persons and legal entities. (j) Provision - any term, covenant, condition, or clause in this Agreement that defines, establishes, or limits the performance required or permitted by either party. (k) Rent - includes Base Rent, taxes, and other similar charges payable by Tenant under the provisions of this Agreement. (1) Rent Commencement - date Tenant begins paying Rent, commencing thirty (30) calendar days after the Delivery Date or first day Tenant is open for business from the Premises, whichever occurs first. (m) Successor - assignee, transferee, personal representative, heir, or other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to the rights or obligations of either Party. (n) Termination - the termination of this Agreement, for any reason; prior to Expiration. 1.2 Other Definitions. - The following additional terms are defined in the following sections of this Agreement: (a) Base Rent §4.1 (b) Claim or Claims §10.1 (c) Hazardous Materials §16 (d) Indemnified Parties §6.3 (e) Option Term(s) §3.2 (f) Project Recitals, §A (g) Premises Recitals, §A 2. PREMISES City finds it to be in the public interest and consistent with public facility uses to grant an exclusive right to operate a financial institution at the Premises. Therefore, pursuant to the terms and conditions set forth herein, City hereby grants to Tenant the exclusive right and privilege to conduct a business at the Premises engaged in operating a full service Credit Union described in Section 5.1, Business Purposes. Tenant agrees to accept the Premises in an "as is" condition as tendered by City. Tenant agrees that no representations with respect to the condition or improvements of the Premises have been made by City except as specifically set forth in this Agreement. 3. TERM 3.1 Term of Agreement. The Term of this Agreement shall be five (5) years from the Effective Date unless terminated sooner as provided in Section 15, or extended as provided in Section 3.2. 3.2 Option to Extend. Provided Tenant is not then in default, and upon approval of the City, Tenant and City may extend the term of this Agreement for two (2) additional successive terms of five (5) years (the "Option Term" or "Option Terms") the first commencing on Expiration of the initial Term and the second commencing on Expiration of the first Option Term, on the same terms and conditions as contained in this Agreement. Tenant must exercise the option by giving City written notice of its intention to do so at least six (6) months prior to Expiration of the initial Term or the first Option Term. 3.3 Hold Over. Should Tenant, with City's consent, hold over and continue in possession of the Premises after Expiration of the Term or any Option Term, Tenant's continued occupancy of the Premises shall be considered a month-to-month tenancy subject to all the terms and conditions of this Agreement, except the provisions of Sections 3.1 and 3.2. 4. RENT 4.1 Base Rent. Tenant shall commence payment of Base Rent upon the Rent Commencement Date, which shall be no later than thirty (30) calendar days after the Delivery Date. The Base Rent shall be established at the fair market value rate of Twenty -One Thousand and 00/100 Dollars ($21,000.00) per year. Base Rent shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) per month). Base Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term. Annually, upon each successive anniversary date of the Effective Date, the Base Rent shall be increased three percent (3%). 4.2 Reserved. 4.3 Payment Location. Rent shall be payable at the office of the City's Revenue Division at 100 Civic Center Drive, Newport Beach, California, or at such other place or places as City may from time to time designate by written notice delivered to Tenant; or by electronic delivery if mutually agreed upon by City and Tenant. 4.4 Late Payment. Tenant hereby acknowledges that the late payment of Rent or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Tenant not paid within five (5) days of its due date shall be subject to a ten percent (10%) late charge. City and Tenant agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Tenant. 4.5 Interest on Unpaid Sums. Unpaid sums due to either City or Tenant under this Agreement shall bear interest at the rate of ten percent (10%) per annum on the unpaid balance, including but not limited to late payment penalties, from the date due until paid. 5. BUSINESS PURPOSES AND USE OF PREMISES 5.1 Business Purposes. The Premises are to be used by Tenant for the operation of a financial institution, intended to provide an ATM and a full service Credit Union offering a wide range of financial products to library visitors and staff, city hall visitors and staff, and the general public in accordance with Tenant's customary terms and eligibility requirements. 5.2 Operation of Premises. Tenant shall operate and manage the Premises in a manner comparable to other high quality businesses providing similar services. Deliveries to the Premises shall be made and completed only between 7:00 a.m. and 6:00 p.m. on non -holiday weekdays. The loading zone designated for use by Tenant for deliveries, as shown on Exhibit "B", is shared with the Central Library and concession tenant ("Concessionaire") located at the Project, and priority shall be given to deliveries for the Central Library and Concessionaire. 5.3 Prohibited Uses. Tenant shall not sell or permit to be kept, used, displayed or sold in or about the Premises (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia, or other material which would be considered lewd, obscene or licentious, (b) any article which may be prohibited by standard forms of fire insurance policies. Vending machines, gaming machines or video or arcade games shall not be used or installed on the Premises unless expressly permitted by this Agreement. Tenant shall not use or permit the use of the Premises in any manner that (a) creates a nuisance or (b) violates any Law. Tenant shall not offer entertainment or broadcast music or entertainment through exterior speakers or other form of transmission without the written approval of City. In this event, Tenant shall obtain all required City permits and approvals. 5.4 Common Areas. Tenant may not expand into the Library area, or other public areas at the Project, or place any temporary furniture, advertising displays, or objects in the public areas of the Project without prior written approval of the City and coordination with the Library. 5.5 Operation. Tenant shall keep the Premises in operation and open to the public for business on a daily basis, in accordance with the following schedule: Monday through Thursday from 9:00 a.m. to 6:00 p.m. Friday from 9:00 a.m. to 5:30 p.m. Saturday from 9:00 a.m. to 1:00 p.m. Tenant shall be closed on all City observed holidays, including but not limited to New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, 4th of July, Labor Day, Veteran's Day, Thanksgiving Day and Friday following, Christmas Day, and any other day the Central Library may be closed as designated by the City Manager or the Library Services Director. Tenant may close the Premises during periods of remodeling, reconstruction, inventory and emergencies or to comply with applicable state or federal banking Laws and regulations with prior written approval from the City. 5.6 Equipment. Tenant shall install, at Tenant's own expense, additional equipment as listed on Exhibit "C" required to provide the financial services offered by Tenant, and which may be necessary to operate Tenant's business. Tenant shall ensure that additional equipment is installed properly pursuant to the manufacturer's specifications, does not exceed the electrical or other utility loads designated for the Premises, and is in compliance with all applicable local and state building codes and any applicable state or federal banking regulations. 5.7 Advertising Display. Tenant may, at its own expense, place unlit signs in or upon the Premises subject to the prior written consent of the City as to the size, type, number, design and method of installation and in compliance with the City's sign code regulations and the deed restrictions applicable to the Premises. All signage placed by Tenant on, in or about the Premises shall remain the property of Tenant and shall be removed by Tenant upon Termination or Expiration of this Agreement at Tenant's expense; and any damage caused by removal shall be repaired at Tenant's expense. 5.8 Marketing. Tenant may, at its own expense, promote Credit Union of Southern California and distribute marketing materials subject to the written approval of the City and the conditions and restrictions of the Agreement of Mutual Understanding Regarding Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase recorded on May 8, 1992 as Instrument No. 92-304757 by and between The Irvine Company LLC and the City of Newport Beach, attached as Exhibit "D", and incorporated herein by reference. 5.9 Personnel. Tenant shall be responsible for hiring the necessary personnel to conduct the daily operation of Premises. Tenant shall comply with all federal, state, and local Laws related to minimum wage, social security, nondiscrimination, ADA, unemployment compensation, and workers' compensation. If required by the City, Tenant's employees shall wear a uniform and/or identification badge. 5.10 Independent Contractor. It is understood that Tenant and its employees are an independent contractor and not an agent or employee of City. Nothing in this Agreement shall be deemed to constitute approval for Tenant or any of Tenant's employees or agents, to be the agents or employees of City. City shall have no interest in the business of Tenant. 5.11 No Distress Sales. No auction, fire, bankruptcy, "going out of business" or other distress sales of any nature may be conducted on the Premises without the prior written consent of the City Manager. 5.12 Restroom Facilities for Employees. Tenant, its employees and customers shall have full use of restroom facilities located within the Central Library as called out on Exhibit "B". Restroom facilities are shared with the Central Library employees and visitors, and are considered Common Area. 5.13 Parking for Employees. Tenant may use up to two (2) non-exclusive parking spaces for Tenant and its employee's vehicles, located within the parking structure at the Project on level two (2) or above. 5.14 Building Access and Security. Access to the Premises is limited to the hours the library has staff on-site. No after-hours access to the Premises will be available to Tenant unless arranged in advance with the City Manager or his/her designee, or the Library Services Director or his/her designee. Tenant is responsible for securing the Premises during non -business hours, including but not limited to security of equipment, personal property, valuables, and the ATM machine within the Premises; pursuant thereto, Tenant shall have the right to install, at its own cost, its own security system ("Security System") in or about the Premises so long as the Security System does not materially interfere with the Central Library's operations. 6. TAXES, LICENSES AND OTHER OBLIGATIONS 6.1 Payment of Taxes. Tenant shall pay directly to the appropriate taxing authorities all taxes applicable to this Agreement, fixtures and Tenant's personal property on the Premises, that are levied or assessed against Tenant during the Term. Taxes shall be paid at least ten (10) calendar days before delinquency and before any fine, interest or penalty is due or imposed by operation of law. Tenant shall, upon request, promptly furnish to the City satisfactory evidence of payment. Tenant acknowledges that this Agreement may create a possessory interest subject to property taxation and that Tenant may be subject to the payment of property taxes levied on such interest. Tenant shall pay, before delinquency all taxes, assessments, license fees and other charges ("Taxes") that are levied or assessed against Tenant's interest in the Premises or any personal property installed on the Premises. 6.2 Payment of Obligations. Tenant shall promptly pay, when due, any and all bills, debts, liabilities and obligations incurred by Tenant in connection with Tenant's occupation and use of the Premises. 6.3 Challenge to Taxes. Tenant shall have the right in good faith, at its sole cost and expense, to contest the amount or legality of any Taxes on or attributable to this Agreement, the Premises, Tenant's personal property, or Tenant's occupation and use of the Premises, including the right to apply for reduction. If Tenant seeks a reduction or contests such taxes, Tenant's failure to pay the Taxes shall not constitute a default as long as Tenant complies with the provisions of this Section. City shall not be required to join in any proceeding or contest brought by Tenant unless the provisions of any Law require that the proceeding or contest be brought by or in the name of City. In that case, City shall join in the proceeding or contest or permit it to be brought in City's name as long as City is not required to bear any cost. If requested by Tenant, City shall execute any instrument or document necessary or advisable in connection with the proceeding or contest. Tenant, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, together with all related costs, charges, interest and penalties. Tenant shall indemnify, defend and hold harmless the City, its council members, boards, commissions, committees, officers, employees, Authorized City Representatives, agents and volunteers ("Indemnified Parties") from and against any liability, claim, demand, penalty, cost or expense arising out of or in connection with any contest by Tenant pursuant to this Section. 7. UTILITIES. Tenant shall be responsible for payment of all utilities furnished to or used at the Premises exclusively by Tenant, or for paying Tenant's pro -rata share of utilities furnished to or used on the Premises, including, without limitation, gas, electricity, sewer, water, refuse collection, telephone service, and cable TV. Tenant's pro -rata share shall be included on base rent invoices each quarter. Tenant may use City's trash enclosures or public trash cans, provided however, that City may, at City's discretion, require Tenant to arrange for its own refuse collection. Refuse collection shall occur between 7 a.m. and 6 p.m. on non -holiday weekdays. 8. ALTERATIONS TO THE PREMISES. 8.1 Tenant Improvements. Tenant acknowledges that City has delivered the Premises with the improvements shown on Exhibit "A". Further improvements by the Tenant must be submitted for review of improvement plans and permitting, and construction shall be subject to the prior written approval of the City Manager. Tenant improvements shall be performed between 7 a.m. and 6 p.m. on non -holiday weekdays. Any contractors hired by Tenant shall be fully licensed and bonded. Tenant's contractors and any subcontractors shall obtain insurance in an amount and form to be approved by City's Risk Manager, including workers compensation insurance as required by law, general liability, automobile liability and builder's risk insurance covering improvements to be constructed, all pursuant to standard industry custom and practice. City shall be named as an additional insured on the contractors and any subcontractors policies. 8.2 Permits. Unless restricted by law, Tenant shall obtain, and be responsible for the costs for, all building permits, and other required permits prior to commencement of Tenant improvements and operations. 8.3 Quality of Work Performed. All Alterations, maintenance and other work shall be performed in a good and workmanlike manner, shall comply with the plans and specifications submitted to City, and shall comply with all applicable governmental permit requirements and Laws in force at the time permits are issued. 8.4 Payment of Costs. Tenant shall pay all costs related to the construction of the improvements and any Alterations by Tenant or its agents. 8.5 Liens. Tenant shall keep the Premises free from any liens arising out of any work performed, material furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. 8.6 Disposition of Alterations at Expiration or Agreement Termination. Any Alterations made to the Premises shall remain on, and be surrendered with, the Premises on Expiration or Termination of this Agreement (excluding Tenant's fixtures, equipment, furniture, and moveable decorations). However, City may elect not less than one hundred eighty (180) calendar days prior to Expiration or Termination of this Agreement, to require Tenant to remove any Alterations that Tenant has made to the Premises. If City requires removal of Alterations, Tenant shall, at its cost, remove the Alterations and restore the Premises to a broom -clean condition before the last day of the Term. Prior to Expiration or within fifteen (15) calendar days after Termination of this Agreement, Tenant may remove any moveable partitions, machinery, equipment, furniture, and trade fixtures previously installed by Tenant, provided that Tenant repairs any damage to the Premises caused by removal. 9. MAINTENANCE OF PREMISES 9.1 Maintenance and Repair by Tenant and City. Tenant agrees that it will keep the Premises in Good Condition. Additionally, Tenant shall be responsible for clearing away trash, and debris if advertising materials are distributed from the Premises, from the floors and tables located in the entry atrium and on the patio where customers will likely congregate. City may perform Maintenance or repairs in the event Tenant fails to commence required Maintenance or repairs within the time provided by City in the notice requesting such Maintenance or repair. The cost of any Maintenance or repairs by the City pursuant to this Section shall be payable as additional Rent. All furnishings, equipment, facilities, improvements, Alterations, attachments and appurtenances provided by City or installed by Tenant, and required for operations, including all ATM equipment and interior furnishings, including items under warranty, shall be maintained in Good Condition and repair by Tenant at its cost. City may perform required cleaning and charge the costs to Tenant if the Tenant fails to perform within the time provided by City in the notice requesting the cleaning and continue to Maintain the area as required by this Agreement. 9.2 Entry by City. Upon twenty-four (24) hour notice to Tenant, City and its Authorized City Representatives may enter upon and inspect the Premises at any reasonable time for any lawful purpose. In case of emergency, City or its Authorized City Representative may, without prior notice, enter the Premises by whatever force necessary if Tenant is not present to open and permit an entry. Any entry to the Premises by City shall not be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof. 10. INDEMNITY AND EXCULPATION 10.1 Hold -Harmless Clause. Tenant agrees to indemnify, defend and hold harmless the City, its City Council, Boards, Commissions, Committees, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim"; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to Tenant's possession, occupation or use of the Premises, specifically including, without limitation, any claim, liability, loss, or Damage arising by reason of: (a) The death or injury of any Person or damage to personal property caused or allegedly caused by the condition of the Premises or an act or omission of Tenant or an agent, contractor, subcontractor, supplier, employee, servant, or sublessee of Tenant; (b) Any work performed on the Premises or materials furnished to the Premises at the request of Tenant or any agent or employee of Tenant, with the exception of Maintenance performed by City; and/or (c) Tenant's failure to perform any provision of this Agreement or to comply with any requirement of Law or any requirement imposed on the Premises by any duly authorized governmental agency or political subdivision. Tenant's obligations pursuant to this Subsection shall not extend to any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 10.2 Exculpation of City. Except as otherwise expressly provided in this Agreement, City shall not be liable to Tenant for any damage to Tenant or Tenant's property from any cause other than the sole negligence, intentional or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this Agreement, Tenant waives all claims against the Indemnified Parties arising for any reason other than the sole negligence, intentional or willful acts of the Indemnified Parties. City shall not be liable to Tenant for any damage to the Premises, Tenant's property, Tenant's goodwill, or Tenant's business income, caused in whole or in part by acts of nature such as earthquakes, floods, fire or other natural disaster. 11. INSURANCE Without limiting Tenant's indemnification of City, Tenant will obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described in Exhibit "E" attached hereto and incorporated herein by this reference. 12. DAMAGE OR DESTRUCTION OF PROJECT/PREMISES 12.1 Destruction of Premises. If the Premises are totally or partially destroyed, rendering the Premises or any portion thereof totally or partially inaccessible or unusable, Tenant shall restore the Premises to substantially the same condition as immediately prior to such destruction (including all trade fixtures, personal property, improvements and Alterations as are installed by Tenant, which shall be replaced by Tenant at its expense). Tenant may elect to terminate this Agreement by giving notice of such election to City within sixty (60) calendar days after the date of the occurrence of any casualty if the cost of the restoration exceeds the amount of any available insurance proceeds, or if Tenant reasonably estimates that repairs of the Premises will take more than six (6) months. Upon such termination, insurance proceeds applicable to reconstruction of the Project (excluding Tenant's personal property therein) shall be paid to City and Tenant shall have no further liability or obligations under this Agreement. 12.2 Replacement of Tenant's Property. In the event of damage or destruction of improvements located on the Premises not giving rise to Tenant's option to terminate this Agreement, Tenant shall, at its own expense, replace and repair all Tenant's trade fixtures, equipment, machinery, furnishings, furniture and inventory as soon as reasonably possible to permit the prompt continuation of Tenant's business at the Premises. 12.3 Destruction of Project. In the event that all or a portion of the Project is damaged, and the Premises or a material portion becomes inaccessible or commercially unusable, and the damage or destruction cannot reasonably be repaired within twelve (12) months after the date of the casualty, City shall have the right to either; (a) Terminate this Agreement by giving to Tenant written notice (which notice shall be given, if at all, within thirty (30) calendar days following the date of the casualty), in which case this Agreement shall be terminated thirty (30) calendar days following the date of the casualty; or (b) Give Tenant written notice of City's intention to repair such damage as soon as reasonably possible at City's expense, in which event this Agreement shall continue in full force and effect; however, Rent shall be abated in accordance with the procedures set forth in Section 13. Tenant may terminate this Agreement by giving City written notice at any time prior to the commencement of repairs if City agrees to repair the Project pursuant to this Section and fails to commence repairs within one hundred twenty (120) calendar days after giving Tenant written notice of its intention to repair. In such event, this Agreement shall terminate as of the date of notice from Tenant to City, and City shall have no liability under this Agreement. 13. ABATEMENT OF RENT 13.1 General Rule. In the event of damage or destruction of the Premises or Damage to the Project that impacts the Premises and this Agreement is not terminated, Tenant shall continue to utilize the Premises for the operation of its business to the extent it may be practicable and commercially reasonable. Rent shall abate only in proportion to the area of the Premises that is rendered unusable. The abatement of Rent shall commence on the date that use of the Premises is impacted and continue until the completion of those repairs necessary to restore full use of the Premises and Tenant's re -opening of the Premises. Tenant's obligation to pay Taxes pursuant to this Agreement shall not be abated or reduced. Rent shall not abate if the damage or destruction to the Premises is the result of the negligence or willful conduct of Tenant or its employees, officers or agents. Tenant's right to abatement of Rent is contingent on payment of insurance proceeds, if any, equal to the amount of Rent pursuant to coverage required by Exhibit "E". 13.2 Abatement/Maintenance. Tenant shall not be entitled to any abatement of Rent for Maintenance that occurs during the Maintenance period_ 14. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT SUBLETTING AND ENCUMBERING 14.1 Prohibition of Assignment. City and Tenant acknowledge that City is entering into this Agreement in reliance upon the experience and abilities of Tenant. Consequently, Tenant shall not voluntarily assign or encumber its interest in this Agreement or in the Premises, or assign substantially all or any part of the Premises, or allow any other person or entity (except Tenant's authorized representatives) to occupy or use all or any part of the Premises without the prior written consent of City, which shall not be unreasonably withheld. Any assignment or transfer made without the City's written consent is null and void. City's consent to any assignment or other transfer is subject to Tenant providing City with evidence reasonably satisfactory to City that the proposed transferee has financial strength and financial experience comparable to Tenant and the use of the Premises by the proposed transferee is consistent with the terms of this Agreement. Except as otherwise expressly provided herein, any dissolution, merger, consolidation, reorganization of Tenant, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Tenant, shall be deemed a voluntary assignment; provided, however, that the sale or transfer of a controlling percentage of the capital stock of Tenant pursuant to a public offering(s) of equity or debt instruments issued by Tenant, or other transfers of publicly traded capital stock or debt instruments shall not constitute a voluntary assignment and shall not require City's consent or approval. The phrase "controlling percentage" means the ownership of, or the right to vote, stock possession of at least fifty percent (50%) of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors, except for ownership of publicly traded shares, warrants or similar equity interests in Tenant traded on a national exchange or over-the-counter markets. 14.2 Exceptions. Notwithstanding the foregoing paragraphs or anything to the contrary contained herein, City's consent shall not be required for an assignment or subletting to an Affiliate, Subsidiary, or Successor of Tenant. For purposes hereof, an "Affiliate", a "Subsidiary", and a "Successor" of Tenant are defined as follows: (a) an "Affiliate" is any corporation or other entity which directly or indirectly controls or is controlled or is under common control with Tenant (for purposes of this Section, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation or other entity, whether through the ownership of voting securities or by contract or otherwise); (b) a "Subsidiary" shall mean any corporation or other entity not less than twenty-five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Tenant and which is at least as creditworthy as Tenant; and (c) a "Successor" shall mean a corporation or other entity in which or with which Tenant is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations or a corporation or other entity acquiring a substantial portion of the property and assets of Tenant. 14.3 Continuing Effect. City's consent to any assignment or encumbrance shall not relieve Tenant from its obligations or liabilities under this Agreement nor act as a waiver of the requirement that such consent be obtained to any subsequent assignment or encumbrance. 15. DEFAULT 15.1 Default by Tenant. The occurrence of any one (1) or more of the following events shall constitute a default and material breach of this Agreement by Tenant: (a) The vacating or abandonment of the Premises by Tenant for a period of sixty (60) successive calendar days, without the prior permission of the Authorized City Representative, excluding closures during periods of casualty, condemnation or permitted closures set forth in this Agreement; (b) The failure by Tenant to make any payment of Rent or any other payment required by this Agreement, as and when due, when such failure shall continue for a period of ten (10) calendar days after written notice of default from City to Tenant; (c) Except as specified in Subsection 15.1(b), the failure of Tenant to observe or perform any of the material covenants, conditions or provisions of this Agreement to be observed or performed by Tenant where such failure shall continue for a period of thirty (30) calendar days after written notice thereof from City to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty (30) calendar days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) calendar day period and thereafter diligently prosecutes such cure to completion; (d) The making by Tenant of any general arrangement or assignment for the benefit of creditors; (e) Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) calendar days); (f) The appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Agreement, where such appointment is not discharged within sixty (60) calendar days; and (g) The attachment, execution or the judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Agreement, where such seizure is not discharged within sixty (60) calendar days. 15.2 Remedies. (a) Cumulative Nature of Remedies. If any default by Tenant shall continue without cure as required by this Agreement, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative. (1) Re-entry without Termination. City may re-enter the Premises, and, without terminating this Agreement, re -let all or a portion of the Premises. City may execute any agreements made under this provision in City's name and shall be entitled to all rents from the use, operation, or occupancy of the Premises. Tenant shall nevertheless pay to City on the dates specified in this Agreement the equivalent of all sums required of Tenant under this Agreement, plus City's expenses in conjunction with re -letting, less the proceeds of any re -letting or atonement. No act by or on behalf of City under this provision shall constitute a Termination of this Agreement unless City gives Tenant specific written notice of Termination. (2) City may terminate this Agreement by giving Tenant written notice of Termination with a specified termination date. In the event City terminates this Agreement, City may recover possession of the Premises (which Tenant shall surrender and vacate upon demand) and remove all Persons and property. City shall be entitled to recover the following as damages; (A) The value of any unpaid Rent or other charges that are unpaid at the time of Termination; (B) The value of the Rent and other charges that would have accrued after Termination less the amount of Rent and charges the City received or could have received through the exercise of reasonable diligence as of the date of the award; (C) Any other amount necessary to reasonably compensate City for the detriment proximately caused by Tenant's failure to perform its obligations under this Agreement; and (D) At City's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time -to -time by applicable California law. City shall be entitled to interest at the rate of ten percent (10%) per annum on all Rent and other charges from the date due or the date they would have accrued. City shall also be entitled to an award of the costs and expenses incurred by City in maintaining or preserving the Premises after default, preparing the Premises for re- letting, or repairing any damage caused by an act or omission of Tenant. (3) Use of Tenant's Personal Property. City may use Tenant's personal property and trade fixtures located on the Premises or any of such property and fixtures without compensation or liability to Tenant for use or damage. In the alternative City may store the property and fixtures at the cost of Tenant. City shall not operate the Credit Union in any manner tending to indicate that the Credit Union is affiliated with, part of or operated in conjunction with Tenant's business. (b) City's Right to Cure Tenant's Default. Upon continuance of any material default beyond applicable notice and cure periods, City may, but is not obligated to, cure the default at Tenant's cost. If City pays any money or performs any act required of, but not paid or performed by, Tenant after notice, the payment and/or the reasonable cost of performance shall be due as additional Rent not later than five (5) calendar days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render City liable for any loss or damage resulting from performance. 16. WASTE OR NUISANCE. Tenant shall not commit or permit the commission of any waste on the Premises. Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of the California Civil Code on the Premises. Tenant shall not use or permit the use of the Premises for any unlawful purpose. 17. NO CONFLICTS OF USE, HAZARDOUS MATERIALS, City represents and warrants that, to the best of City's knowledge, (i) Tenant's use of the Premises does not conflict with applicable Laws, and City knows of no reason why Tenant would be unable to obtain all required permits, licenses and approvals from the appropriate governmental authorities; (ii) the Project is not in violation of any environmental laws, rules or regulations and Tenant's contemplated uses will not cause any such violation; and (iii) the Project is free of any and all Hazardous Materials as of the date of this Agreement. In the event that the presence of any Hazardous Materials not caused by Tenant is detected at the Project at any time during the Term of this Agreement and any Option Term, City shall promptly provide notice to Tenant and all remedial work shall be performed by City at City's expense. Tenant's obligation to open shall be delayed until the remedial work is completed if the remedial work is performed prior to Tenant opening for business. Tenant's obligation to pay Rent shall be abated in direct proportion to the extent Tenant is unable to conduct its business upon the Premises as a result of any remedial work that is performed subsequent to Tenant opening for business. Tenant shall have the right (but not the obligation) to terminate this Agreement, upon thirty (30) calendar days advance written notice to City in the event that Hazardous Materials are detected at the Project and the presence or the remediation materially affects Tenant's ability to conduct its business in the Premises. "Hazardous Materials" shall mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances" under applicable federal, state and local laws, ordinances and regulations. 18. CITY'S DEFAULTS/TENANT'S REMEDIES. City shall be in default if it fails to perform, or commence performance if the obligation requires more than ten (10) calendar days to complete, any material obligation within ten (10) calendar days after receipt of written notice by Tenant to City specifying the nature of such default. City shall also be in default if it commences performance within ten (10) calendar days but fails to diligently complete performance. In the event of City's default, Tenant may: (a) Upon five (5) calendar days written notice to City, cure any such default, and City shall reimburse Tenant the amount of all costs and expenses incurred by Tenant in curing the default, together with interest and expenses at the maximum rate then allowed by law; or (b) Terminate this Agreement if City's default materially interferes with Tenant's use of the Premises for its intended purpose and City fails to cure such default within ten (10) calendar days after a second written demand by Tenant in which case Tenant shall have no further or continuing obligations. 19. EVENT OF BANKRUPTCY. (a) if this Agreement is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. or any similar or successor statute ("Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to City, shall be and remain the exclusive property of City and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting City's property under this Section not paid or delivered to City shall be held in trust for the benefit of City and be promptly paid or delivered to City. (b) Any person or entity to which this Agreement is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Agreement on and after the date of such assignment, including the obligation to operate the business which Tenant is required to operate under this Agreement. 20. NOTICES. Any notice, demand, request, consent, approval or communication that either party desires or is required to give shall be in writing and shall be deemed given three (3) calendar days after deposit into the United States registered mail, postage prepaid, by registered or certified mail, return receipt requested. Unless notice of a different address has been given in accordance with this Section, all notices shall be addressed as follows: If to City, to: CITY OF NEWPORT BEACH Attn: Real Property Administrator 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92658 (949) 644-3236 If to Tenant, to: Credit Union of Southern California Attn: Dave Gunderson P.O. Box 200 Whittier, CA 90608-0200 (562) 698-8326 21. SURRENDER OF PREMISES. At the Expiration or earlier Termination of this Agreement, Tenant shall surrender to City the possession of the Premises. Tenant shall leave the surrendered Premises, required personal property, equipment and fixtures, in good and broom -clean condition, reasonable wear and tear excepted. All property that Tenant is not required to surrender, but that Tenant does abandon shall, at City's election, become City's property at Expiration or Termination. City shall owe no compensation to Tenant for any personal property, equipment or fixtures left at the Premises by Tenant at the Expiration or Termination of this Agreement. 22. COMPLIANCE WITH ALL LAWS. Tenant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Tenant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the City Manager or his/her designee. 23. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 24. SEVERABILITY. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 25. APPLICABLE LAW. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 26. ENTIRE AGREEMENT; AMENDMENTS. 26.1 The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire agreement of the parties with respect to the subject matter of this Agreement. 26.2 This Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between Tenant and City. 26.3 No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. 26.4 The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Tenant and the City Manager or his/her designee. 26.5 If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 26.6 Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 26.7 Each party has relied on its own inspection of the Premises and examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and covenants in this Agreement. The failure or refusal of either party to inspect the Premises, to read this Agreement or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 27. TIME IS OF THE ESSENCE. Time is of the essence for this Agreement. 28. SUCCESSORS. Subject to the provisions of this Agreement on assignment and subletting, each and all of the covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, and personal representatives of the respective parties. It is expressly understood and agreed that, notwithstanding anything to the contrary in this Agreement, and notwithstanding any applicable Law to the contrary, the obligations of Tenant under this Agreement do not constitute personal obligations of the directors, volunteers, employees, officers or members of Tenant, and City will not seek recourse against the individual directors, volunteers, employees, officers or members of Tenant or any of their personal assets for satisfaction of any liability of Tenant in respect to this Agreement unless authorized by law. 29. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 30. TABLE OF CONTENTS; HEADINGS The table of contents of this Agreement and the captions of the various sections of this Agreement are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 31. GENDER; NUMBER The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the neuter, and each includes corporation, partnership, or other legal entity whenever the context requires. The singular number includes the plural whenever the context so requires. WAS=* O,t[-3I-? All exhibits to which reference is made in this Agreement are incorporated by reference. Any reference to "this Agreement' includes matters incorporated by reference. 33. CITY BUSINESS LICENSE Tenant shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 34. COSTS AND ATTORNEYS FEES The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 35. NONDISCRIMINATION Tenant represents that it is an equal opportunity employer and agrees that in the performance under this Agreement, it shall not, discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: 1h By: Cz Aaron C. Harp City Attorney �1 ATTEST: ILZI. /,Date: By: Leilani I. Brown City Clerk mom, CITY OF NEWPORT BEACH, A California municipal corporation Date: [O-IM-2o1� 6;-: 4171"L�YL nJ d"iard Selich, Mayor TENANT: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corpoDate: at r3 1 � i 2,( Date: U l 1 Dave Gunderson President/CEO Date: l0 I S I I ti By: V t&/1 Peter Pu Chief Fin •4 �j Attachments: Exhibit A - Depiction of Premises Exhibit B - Loading Zone, Common Areas, Restrooms Exhibit C - Additional Equipment Exhibit D - Special Use Restrictions Exhibit E - Insurance Requirements Exhibit F - Memorandum of Lease [END OF SIGNATURES] EXHIBIT "A" Depiction of Premises TA AL C � + � F ti +� `arn ;. � , c� t•$� �'� +� �t n } f rF' r� \-r..6r•� f y • tr � _ � � tt i i� T� \ � '•<.''_T � '�•Y' IM Nov tit r +.. i ..� � • �i ''' ><` r� a, FL ] � A T` �tOiMG.�4t" .� f X jiM1 q�R.. + (.+ilkk`� r, wick ,.�' 1+ It tit jL c k l �y; ' y •.+� ,. f + r3'tLJ Q L'' 'i• 4'r irl . w,.� j�r� , `"". .`4.rt rN3+ lev Y cl 74 r L r+ ff ..,,. aft $ _. t 4." +� rt. a `.t ' t r ,x y M< e •"°".r 1 r < c. ! x t t r� $ ti �Sti\+� _.'. 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Z s... _ s..�•.- ._.d :Z�_.�. r��. a:l-..,�¢ n. �-t �,.,+��.' .-ti` �_� .- .. � �u� -.. .��.._ l r., .. �r�Y w $h , Exhibit A-4 EXHIBIT "B" Loading Zone, Common Areas, Restrooms Exhibit B ------------------ -- - - - - - - - - - - - - - - E E. ..... . gg vmm\ --------------------------------------- (Dr Exhibit "C" Tenant Equipment List Equipment Quantity Cost Network Router 1 $4,300.00 Network Switch 1 $7,500.00 Network Accelerator 1 $5,000.00 Teller Workstation PCs 3 $1,500.00 Desk Phones 3 $750.00 Receipt Printers 3 $1,200.00 Check Endorsers3 $1,000.00 Printer Servers 3 $900.00 Laser Printers I 2 $1,500.00 Signature Pads 3 $1,500.00 Monitors 4 $700.00 Manager Workstation PC 1 $1,000.00 Network Cabling N/A $6,000.00 ATM 1 $65,000.00 Cash Recyclers 2 $90,000.00 Video System 1 $8,205.00 Alarm System 1 $6,944.00 Exhibit "D" See attached special use restrictions document. '* 9Z-304T57 Rhen 2scorded W1 To: 3- War THE 1XVINK CWKPAKY ME an.. SW Newport port center Drive 8 Oy MAY 81 war Newport Desch. CA 92660 AN. OWICW Rr001ds a.� F.. OrmLC�omo, CWOTA �-T-T- Attention: Lee Milligan a�T' S111FA S � flD&8 1 Space above this line for Recorder's we Ct DECLARATION OF SPECIAL LAND USE RESTRICTICNS, RIOT OF FIRST REFUSAL, MORTGAGE LIEN AMID OPTION TO REPURCHASE t TABLE OF CONTMM DECLARATION OF SPECIAL JAM USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MOMMGE LIEN ALM OPTION TO REPURCHASE ARTICLE 1. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . 1 1.1 Grantee's Representations and Warranties. . . . . . . . 1 1.2 Statement of Doclarant's Genaral Purposes. . . . . . . . 2 1.3 Definitions. . . . . . . . . . . . . . . 2 (r.) "Benefitted Property" . . . . . . . . . . . . . . 2 (b) •center" . . . . . . . . . . . . . . . . . . . . . 2 (e) 'Declarant" . . . . . . . . . . . . . . . . . . . 2 (d) "Effective Date' . . . . . . . . . . . . . . . . 2 (e) "Final Map' . . . . . . . . . . . . . . . . . . . 2 (£) 'Grantee" . . . . . . . . . . . . . . . . . . 2 (g) The `Gross Floor Area' . . . . . . . . . . . . . . 3 ARTICLE 2. SPECIFIC RESTRICTIONS . . . . . . . . . . . . . . . . . . . . 3 2.1 Specific Facilities . . . . . . . . . . . . . . . . . . . 3 3.2 (a) Improvement and Continued Use. . . . . . . . . . . 3 3.3 (b) Construction. . . . . . . . . . . . . . . . . 3 3.4 (c) Commencement and Completion. . . . . . . . . . . . 3 3.5 (d) Grading . . . . . . . . . . . . . . . . . . . . . . 4 3.6 (e) Utilities. Streets and Public Improvements. . . . 4 3.7 (f) landscaping . . . . . . . . . . . . . . . . . . . . 4 3.8 (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 InsG.-uctions. . . . . . . . . . . . . 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. DuLARANT'S RIGHT OF FIRST REhVSAL. . . . . . . . . . . . . . 10 ARTICLE 5. REHEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . it (b) Exercise of Repurchase Option. . . . . . . . . . . 12 (c) Expiration and Quitclaim . . . . . . . . . . . . . 12 (d) Repurchase Price . . . . . . . . . . . . . . . . . 12 (0) Repurchase Escrow Teras. . . . . . . . . . . . . . .U M Irrevocability. . . . . . . . . . . . . . . . . . 1.3 (S) warranties. Plans Mw Specifications. . . . . . . 23 5.4 Arbitration Procedure . . . . . . . . . . . . . . . . . . 14 5.5 Waiver. . : . : : : . . . . . . . . . . 14 5.6 Costs of . . . . . . . . . . . . . is 5.7 Rights of Lenders . . . . . . . . . . . . . . . . . . . . 15 5.8 Advances . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE 6. GF MVL PROVISIONS . . . . . . . . . . . . . . . . . . . . . 15 6.1 Unavoidable Delay . . . . . . . . . . . . . . . . . . . . 15 6.2 Contimt no Operations. . . . . . . . . . . . . . . . . . 16 6.3 Covenants to Run With the Land: Tete. . . . . . . . . . 16 (A) CcVaDAntz 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 Law . . . . . . . . . . . . . . . . . . . . . . 17 6.9 Severability . . . . . . . . . . . . . . . . . . . . . . 17 6.10 Captious . . . . . . . . . . . . . . . . . . . . . . . . 17 6.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . 17 6.12 Gander and Minher . . . . . . . . . . . . . . . . . . . . 17 6.13 Time of the Essence . . . . . . . . . . . . . . . . . . . 17 ii I mmiz OF matLBTn Property Description .................... i Specific Facintiae..................... 2 Subordination Adromont................. 3 iii It DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE THIS DECLARATION (,Declaration*) is made as of March 11, 1992, by and between THE IRVINE COMPANY. a Michigan corporation ("Declarant`), and the CITY OF NEWPORT BEACH, a California municipal corporation ("Grantee), with reference to the following facts: A. Grantee and Declarant have entered into an Exchange Agreement and Escrow Instructions (the "Exchange Agreement") by which Grantee is acquiring from Declarant the following described real property (the 'Exchange Land') situated in the City of Newport Beach, County of Orange, State of California: The southwesterly one-half of Parcel 2 as shown on Parcel 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 Eserov instructions by which Grantee is acquiring from Declarant real property adjacent to and contiguous with the Exchange Land which real property is situated in the City of Newport Beach, County of Orange, State of California ('Transfer Land") and is described as follows: The northeasterly one-half of Parcel 2 as shown on Parcel Nap 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 Varrenties, GRANTEE REPRESENTS AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SAME IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH HEREIN A -NO FOR THE PARTICULAR USES AND PURPOSES AUTHORIZED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT: (a) GRANTEE 19 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) DECIARANT HAS CONVEYED AND GRANTEE HAS ACCEPTED FEE TITLE TO THE LAND FOR ZISE 3Y GRANTEE IN ACCORDANCE WITH THE PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DECLARANT AND GRANTEE DO NOT EXPECT OR INTEND THE LAND IO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PERMITTED HEREIN; (d) THE LIKELIHOOD THAT ANY BREACH WILL OCCUR AND THAT DECLARANT WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (a) 14ITHOUT THE RESTRICTIONS CONTAINED HEREIN. THE PURPOSES AND EXPECTATIONS OF DECLARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND CWW BE DEFEATED; (f) BUT FOR CONVEYANCE OF THE LAUD, GRANTEE WOULD BE REQUIRED TO PAY SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE ESTABLISHED THE FAIR MARKET VALUE OF THE LAND FOR PURPOSES OF THE OPTION TO REPURCHASE BASED UPON PRESENT ESTIMATES AND HAVE APPLIED ADJUSTMENT FACTORS TO TAKE INTO ACCOUNT SUBSEQUENT CHANGES IN VALUES; (h) DECLARANT AND GRANTEE ACKNOWLEDGE T;IAT MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR LESSER THAN THE VALUE ESTABLISHED FOR PURPOSES OF THE OPTION TO REPURCHASE AND HEREBY ASSUME THAT RISK. ' BUT FOR SUCH REPRESENTATIONS BY GRANTEE, AND GRANTEE'S UNIQUE S[ILIS, WMMTISE AND SUITABILITY IN CONSTRUCTION AND OPERATION OF THE SPECIFIC FACILITIES DESCRIBED BELOV, DECLARANT WOULD NOT HAVE CONVEYED THE LAND 20 "AN71M, BUT WOULD HAVE RETAINED THE BENEFITS OF WNERSHIP, INCUMING PUTURE APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPMENrATTONS AND MMANTiES, DECLARANT HAS CONVEYED THE LAND To GRANTEE. 1.2 Statement of Declarant'a General pux*oses. 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 Canter are the clear delineation of use areas throughout the Center, together with the strict 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 electa 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 E MBIT 1 attached hereto. Declarant shall have the right by a duly recorded amendment hereto executed solely by Declarant to substitute for or add to the Benefitted �I Property any real property owned by Declarant in the County of Orange, California. The Benefitted Property shall be the dominant tenement and the 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 sT• cifically 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 thix Declaration shall be the date this Declaration is recorded in the Official Records of Orange County, I"alifornia. (e) "Final Map" shall mean the final map covering the Land described as Parcel Map No. 90-361 as shown on a nap recorded in Book 270 , Pages 15 to 18 , inclusive, of Parcel Maps, Records of Orange County, California. (f) 'Grantee" shall ,an the Grantee identified above and each and every suc„essor, assignee, owner, lessee, licensee or other occupant of the Land, the Specific Facilities, as defined below, or any portion thereof or interest therein, and each of them, during their ownership or occupancy thereof. Liowver, such tern 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 and lessee under such lease shall be responsible as principals (and not sureties) for compliants with all rhe torus 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 valla. No deductions or exclusions shall be made by reason of columns, stairs, elevators, escalators, or other interior construction or equipment. ARTICIE 2. SPECIFIC R$STRICCIOHS. 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 ERHIB_ ir 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 Improvementa to be used r,olely for a public library with related parking and no other use, notwithstanding that other uses any 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 font 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 is -.proved, 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 commenced and completed within the time periods set forth in the Section below entitled "Commencement and Completion." (c) Commencement and Comeletion. Subject to extensions of tine for unavoidable delays as provided under the provision entitled -Unavoidable,.— Delay," (i) within the time period specified on EXHIBIT 2 as the "Commencement Date," measured from and after the Effective Date of this Declaration, Grantee shill have commenced construction of the Si3eci£ic Facilities on the Land, and (ii) within the time specified on MMTBIT 2 as the "Completion Date,' *assured :rom 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 footing& 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 $pacific Facilities. Grantee shall s,ma v and complatc construction of the Other Improvements prior to or contemporaneously with such Specific Facilities. (d) Gradin. Prior to the coeaenessent of mny sradiag or aiailar work on the Land, Grantee shall submit to Declarant for its approval two aero of plans and specifications for gradin, terracing and filling of the Land I Uand 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. I (ii) In addition to any such facilities constituting a ff� part of the Specific Facilities or the Other Improvements, Grantee shall I�r construct and install or pay for construction and installation of all streets, street lights, driveways, curb cuts, entry ways, sidewalks and the like, perimeter walls and fences, irrigation and drainage systems, landscaping, Monument, directional or other signs and all like Improvements on the Land or between the Land and adjoining sidewalks or the curbs of adjoining streets, as required by the Exchange Agreement. (f) Landscaping. In addition to the landscaping constituting a part of the Other Improvements, if any. Grantee shall landscape the Land as necessary to create a first class attractive condition, and in a manner consistent with the existing landscaping in the Center. Grantee shall submit to Declarant for its approval two sets o£ 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, Lite 'exterior` of the Specific Facilities shall mann 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 Reouired. Except with respect to plans and specifications approved prior to the recordation of this Declaration, no construction, installation or alteration of the Specific Facilities, the Other Improvements, or any other landscaping, grading or other improvements in, about or on the Land shall be commenced unless the concept, plans and specifications for the exterior elements of such fmpr-)vewents have first received the written approval of Declarant exercising its sole and absolute discretion. The improvements constructed shall comply with the plans and specifications approved by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that the Specific Facilities, the Other Improvements and all other landscaping and Improvements on the Land shall be designed. constructed and installed to provide for a library with complementary landscaping and surrounding improvements which, in the sole discretion of Decl^rant, are in harmony with the plan and design of the Cencer. (b) Time for Approvalt. Declarant shall approve or disapprove any plans and specifications delivered to Declarant pursuant to this Article as soon as possible but no longer than thirty (30) working days after receipt of two copies thereof accompanied by such drawings, site plans. elevations, artists, conceptions, samples of materials, models, mock-ups, and color samples as from time to time required by Declarant to review such plans and specifications. If approved by Declarant, such approval shall be endorsed on such plans and specifications and one set of such doevioants bearing Declarant's approval shall be returned to Grantee within such thirty (30) corking 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 shall, within forty five (45) working days after receiving notice of Declarant's disapproval, submit new plans and specifications for Deelorant's approval. vailure of Declarant to approve or disapprove any plana 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 ;dans and specifications pursuant to this Section shall only represent Daeiara.ts' 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 plana and specifications for ara-lLectural or engineering design or One feasibility or 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 Ia 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 Hap Conditions, Certain map conditions dated November 21, 1991 (copies of which have been provided to Grantee) have been imposed in connection with the approval and recordation of the Final Map. Except as otherwise agreed in writing by Declarant and Grantee, Grantee shall comply with and/or fulfill all of those duties and obligations imposed by such slap conditions on the "Applicant' and/or "Subdivider" attributable to Grantee's use or development of the Land, all at Grantee's sole coat and expense. 2.5 Compliance With 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 an 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, Grar_tee shall obtain, at its sole expense, all of its internal and external governmental approvals and permits and approvals of other governmental authorities with jurisdiction which may from time to time be required with respect to the performance contemplated under this Declaration, including, as applicable end without 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, engiacering studies and the like as necessary. (b) Approvals of Ayplications. 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) ' day period and Declarant's continued failure to approve or disapprove for fifteen (15) days after Grantee's written notice that Declarant hay failed to approve or disapprove as required hereunder shall 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 coarunication hat bean delivered to the addresses. 2.6 Bands. Before the commencement of any of the work required under this Article 2, Grantee shall furnish to Declarant true copies of any and all Labor and material bonds and faithful performance bonds, if any, required of Grantee by any governmental agency concerning such work. 2.7 Ttansfers. (a) Transfers Prohibitod. For a period of not less than twenty-five (25) years after the Effective Data, 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 terns and conditions of such proposed transfer and the right to either (i) acting reasonably, approve or disapprove such transfer, (ii) exercise its option to repurchase set forth in Section 5.3 below, or (iii) exercise its right of first refusal set forth in Article 4 below. Declarant in its sole discretion may within such sixty (60) day period exercise any such right. Declarant's failure to so act within such sixty (60) day period shall be deemed to constitute approval of the transfer on the terms and conditions proposed by Grantee. Any time after the twenty fifth (25th) anniversary of the Effective Date, Grantee may transfer the land without Declarant's approval under this Section and without regard to Declarant's option to repurchase set forth in Section 5.3 below or Declarant's right of first refusal set forth in Article 4 below. Grantee hereby acknowledges that it would be reasonable and appropriate for Declarant to disapprove a transfer and exercise its option to repurchase and/or right of first refusal if the proposed transferee is not adequately experienced, knowledgeable and financially capable to own and operate a public library. (b) Permitted Transfers. Notwithstanding the foregoing, (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 Transfers"). 2.8 Subordination or Corment to Transfer for Public Financing. Subject to the following p-ovisions 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 cat exceed at any time ninety percent (90l) 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 f commercially reasonable terms and conditions. Grantee will provide Declarant with appraisal information from a reputable H.A.I. appraiser, from the Office of the Assessor of Orange County or from an institutional lander reasonably satisfactory to Declarant to verify that the total. loan-to-valus rate does not exceed ninety percent (90%). No foreclosure, trustee's sale or deed 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 arty other obligation between Declarant and Grantee relating to the Land, Declarant shall execute, acknowledge and deliver to Grantee a subordination instrument in substantially the form attached hereto as MIBIT 3 or a consent to transfer_. pursuant to issuance of a public obligation: (a) CCoRY 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 land must not secure or relate to any obligation or indebtedness not related to improvement of the Land, and neither the note, the mortgage, deed of trust, lease nor any other document or instrument pertaining to a loan or public obligation pertaining to the Land shall contain any provision making it a default thereunder if the obligor or any other party defaults in any obligation not related to the acquisition or improvemeat 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 easemants 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 acquisitionfconstructLon loan refinanced); and (d) Request for Notice of Default. Unless public obligations are issued which do not involve a standard mortgage lien to secure performance of a note, a copy of a Request for Notice of Default pursuant to Section 2942b of the California Civil Code prepared for execution and acknowledgment by Declarant which, when recorded at Grantee's expense, will entitle Declarant to the notices prescribed by said Section 2942b. If public obligations are issued, then the documentation for such financing shall require delivery of a notice of any default to Declarant prior to exercise of any remedies available upon such default. 2.9 Costs of Regional Development. Grantee understands that development of the Specific Facilities on the Land will be accomplished in conjunction with development of other real property in the Center by Declarant other private parties. Grantee hereby agreus 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 $XMISIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedication and Maintenance. Declarant and City agree that a land area along MacArthur Boulevard shall be designated on the Final Map to be used exclusively for future expansion of MacArthur Boulevard. Prior to construction of road and other improvements for such expansion. Grantee shall not use the area designated for any purpose other than installation and maintenance of landscaping. Grantee agrees to install landscaping within such area prior to completion of construction of the Specific Facilities pursuant to plans and spocificatione approved by Daclarant 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 tines prior to commencement of construction for expansion of MacArthur Boulevard. t� ARTICLE 3. 3.1 UnayprMdjDeralovaent or Use. Unless expressly approved by Declarant, which approval may be withheld by Declarant in its sola discretion, Grantee shall not permit the construction, maintenance, operation or use of any structure or improvements on the Land not in full eospliencs with all requirements of the law, this Declaration and any other covenants, conditions and restrictions from time to time covering the Land. 3.2 General Maintenance. Prior to the completion of the specific Facilities, Grantee shall maintain the Land in a clean, sanitary, orderly and attractive condition, free of weeds, debris and pests. Upon completion of the Specific Facilities as contemplated herein, Grantee shall at all tines 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 arcbicectural plans and criteria for the Land, the Center and the general area in which the Land is located. Except as provided in this S^ctl�)n, 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 anct 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: 1 n U 3.7 No Subdivisfon. Grantee shall not effect any change or amendment to the Final Hap 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 Hap Act or any similar lav 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 the Land, unless expressly approved by Declarant which approval may be withheld by Declarant in its sale discretion. 3.8 Zonfne. Grantee shell 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 ordinar,ce or 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 sola discretion. Notwithstanding the foregoing, Declarant shall not unreasonably withhold its consent to Grantee's application for such conditional use permit as say be required for development of the Land with the Specific Facilities. Grantee shall obtain beclarant's consent prior to placing such application an the agenda of Grantee's dlacretionary 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. (a) Any public or private nuisanco; (b) Any vibration, mire, sound or disturbance that is objectionable due to intermittence, heat, frequtacy, shrillness or loudness; e,I (c) Any direct lighting which is not shielded and confined within site boundaries; + r (d) Any emission of odors, noxious, caustic or corrosive natter, whether toxic or nontoxic; (e) Any litter, dust, dirt or ash in excessive quantities; (£) Any use of a structure of a temporary character, trailer, tent, shack, garage, barn or other outbuilding except for such structures r 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; >•j (h) Any raising, breeding or keeping of animals, livestock or r poultry of any kind; (i) Fuel storage of arty 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, 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 ocher Restrictions. 3.7 No Subdivisfon. Grantee shall not effect any change or amendment to the Final Hap 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 Hap Act or any similar lav 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 the Land, unless expressly approved by Declarant which approval may be withheld by Declarant in its sale discretion. 3.8 Zonfne. Grantee shell 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 ordinar,ce or 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 sola discretion. Notwithstanding the foregoing, Declarant shall not unreasonably withhold its consent to Grantee's application for such conditional use permit as say be required for development of the Land with the Specific Facilities. Grantee shall obtain beclarant's consent prior to placing such application an the agenda of Grantee's dlacretionary 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. 3.9 Indemnity. Declarant and Declarant's past and present employees, officers, directors, shareholders, agents and representatives ani its and their respective successors and assigns (collectively, the "Tudemnitegs,) 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 eonveyanca of the land or improvements thereon or any portion thereof or interest therein, including, rithout limitation, any loss, damage, injury or claim arising from or caused by or alleged to arise from or be caused by (i) any use of the hand or any part thereof, (ii) any defect in the design, construction or, 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) any accident or casualty on the Land, (vi) any representations by Grantee or any of its agents or employees, (vii) any violation or alleged violation by Grantee, its employees or agents of any law now or hereafter enacted, (viii) any slope failure or subsurface geologic or groundwater condition. (ix) any work of design, construction, engineering or other work with respect to the land, (x) any other cause whatsoever in connection with Grantee's use of the Land or Grantea'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 (e) the breach by Grantee of any of its obligations under this Declaration. Furthermore, as it 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 lav 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 arty 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 FIdST REFUSAL_ Except with regard to *Permitted Transfers' described in the Section above entitled 'Transfers', if, at any time prior to the twenty fifth (25c1,) anniversary of the Effective Date, Grantee shall determine to transfer all or any part of the Land or the improvements thereon or any interest 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 (CO) days after receipt of Grantee's notice, indicates in writing its agreement to purchase said Interest for the price and on the teras 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 ceras 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, than any further transactions (including a transaction on the same price and terms previously submitted to 10 n rJ •.....nrvnfRTE12�F9(!:!`A'V�3,"'•1`?41'�RS�^1isv.1*r'^r.er.;,..Y1F•r'M-`^!'Y!+'�alS^aw.•n�.Y:ce+!!tF..1G`+I�t1E'w+iy?nc n -.n' -_...s.. �...-.rr......--... Declarant) shall be deemed a asr determination by Grantee to transfer and convoy said Interest, and the provisions of this Article *bail again he applicable. ARTICLE 5. ARE=. 5.1 Default and General Reaediea. In the event of any breach, / •dolation or failure to perforator 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 lar or equity, whether or not act 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 and tan (10) days thereafter in the case of a monetary default and thirty (30) days thereafter in the case of I a normonetary default; provided, however, that if a nonmonstary default is not 1 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 suet► cure promptly within the thirty (30) day period and thereafter diligently prosecutes the cure to completion. To the mmimrm 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. f, (a) Damson. 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) Eouity, 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 an the type and quality of development an and use of the Benefitted Property or portions thereof and/or frustration of Deelarant'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 as injunction to enjoin the continuance of any such breach or violation thereof, whether or not Declarant exercises arty 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 Lend, 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 provLsions 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.L(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 tepu-,,chase the Land unless a proposed, attempted or actual transfer in violation of Section 2.7 has been initiated, a violation of the restrictions in violation of 2.1(s) has occurred or construction has not been commenced or completed as req,itred by Section 2.1(c).) (a) Grant of Ootign. Grantee hereby grants to Declarant an exclusive option to purchase the Land subject only to: (1) Current taxes not yet delinquent; (ii) Natters affecting title existing at the Effective Date of this Declaration, excluding any mortgage, deed of trust or similar Instrument to which Declarant has subordinated the Enforcement Rights pursuant to Section 2.8 above; 11 (iii) Matters affecting title which are created, aerie, assumed, consented to or requested by Declarant, its successors or assigns, excluding any mortgage. dead of trust, any matter related to issuance of any public obligation or similar instrument to which Declarant bas consented without exercise of the Enforcement Rights or to which Declarant has subordinated the Enforcement Rights pursuant to Section 2.8 above; (iv) Batters shown as printed exceptions in the standard fora 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 ofRepurehase Option. Declarant nay exercise its option to repurchase the land by giving written notice to Grantee of Declarant': election to repurchase within (i) sixty (60) days after receipt of Grantee's notice of proposed "transfer" as provided in Section 2.7 (Transfer*) above, (ii) within ninety (90) days after Declarant receives actual notice of any transfer or attempted transfer in violation of any provision in Section 2.7, (iii) within ninety (90) days commencing thirty (30) days after delivery of notice to Grantee of violation of the Restrictions itemized in Section 2.1(a) if such violation has continued unabated, or (iv) within one hundred eighty (180) days of the 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(t) 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 tine and exercise the option. Rescission of any notice of violation of the Restrictions itemized in Section 2.l(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 nor 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: (1) 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 (5t) per annum or, (B) the appraised fair market value of the Land with the uae 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 adjoatment 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 CFI shall be the Consumer Price Index for All Urban Consumers Los Angelas- Anaheir-Riverside Metropolitan Area (all items) compiled by the United States Department of Labor, Bureau of Labor Statistics, based upon 1982-84 as 100; provided, however, that if the CPI is modified or changed, than the CPI shall be a converted or substituted index as deterninad by Declarant. Plum IN The fair market value of the Ussable Improvements, if any, an the land at the time the Option is exercised. The `Useable Improvements" shall be limned 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 Ussable 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 coat 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 (5s) 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 doee 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 hold 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 Grances through the foregoing escrow. Any additional amount necessary to satisfy !tucb 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 thi, parties in the manner customary in Orange County, California. (f) Irrevocability. The option created hereby shall be Irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) Warranties_ Plans and Specificetiona. 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 Unable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 =._.���;:ri:�:---:�y�•�:�s,rn,?�5:�•�9.'rt':'RCi*,S'�'���'.'•`>"=„'i,,_,.�•*..r,R`”<',.. •-' r�—: .»r•f•a..n�..... ,T.-,.,. _..� 5.4 Arbitration Procedure. If Declarant and Grantee are not able to agree to the fair market value of the lAnd or the Useabla Improvements within thirty (30) days after the date Dsclarant 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 ("Declarants 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 Beal Estate Appraisers (R.H, or K.A.I,}, the Society of Beal Estate Appraisers (S.R,A., S.R.P.A., or S,R.E.A.), the American Society of Appraisers (member or senior masher A.S.A.), or another recognised 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 indenendant appraisals without bias to any party or to any result, or has such other education and experience so as to be considered qualified by both parties. [B] If Grantee does not agree with Declarant'• Appraisal, Grantee shall notify Declarant in writing of such disagreement in writing within ten (10) days after receipt of Declarant's Appraisal. Within thirty (3D) 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 them to make an independent determination of the applicable highest fair market value (the "Final Appraisal"). Such Final Appraisal shall he 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 (L) 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 dolay or failure to enforce any of the 14 J n U Restrictions ehall be construed or held to be A waiver of any succeeding or preceding broach of the same or any other of the Restrictions. No waiver of any breach or default of Grantee hereunder shall be implied from any omission by Declarant to take any aetio:on account of such breach or default if such breach or default persists or is repeated, and no express waiver shall affect a breach or default other than as specified in said waiver. The consent or approval by 11eclarant to or of any act by Grantee requiring Doclarant's cement or approval shall not be deemed to waive or render ummeessary Deelerant's consent or approval to or of any subsequent similar acts by Grantes. 5.6 Costs of Enforceeen . 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 costa 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 bereof shall be binding upon and effective against any subsequent owner or other occupant of the Land or portion thereof Whose title is acquired by foreclosure, trustee's sale or dead in lieu of foreclosure but (a) such subsequent owner shall have a reasonable time after acquiring title in which to cure any violations or correct and change any facts giving rise to Declarant's rights under this Declaration occurring prior to such transfer of title and which are reasonably capable of being cured or changed provided, that such subsequent owner diligently acts to effect such cure or change (and in the event of such diligent and timely cure, such subsequent owner shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed), and (b) Sections 5.1(a) (Damages) and 5.3 (Option to Repurchase the Land) shall not be applicable as to such subsequent owner with regard to any noncurable default occurring prior to the time such subsequent owner acquired title. Notwithstanding the foregoing, any such subsequent owner shall be required to use the Land in accordance with the restrictions set forth in Section 2.1(a) and diligently complete construction of any Specific Facilities and Other i 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 suns 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 assesaments, insurance premiums, or amounts secured or represented by encumbran--es or liens or other charges on any portion of the Land which appear to be prior to Declarant's rights and interest under this Declaration), all of which advances together with interest at the maximum contract rate then permitted by law shall be paid to Declarant upon demand. ARTICLE 6. GENERAL PROVISIONS. 6.1 Unavoidable Delay. Any prevention, delay or stoppage in the work of building the Specific Facilities, chs 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, hokaver, 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 —J Cranes or because of any inability of Grantee to obtain funding from any source. Without limiting the generality of the foregoing, in no event shall Grantee's inability to obtain construction or permanent financing for developosat of the Tend, 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 &Ivan 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 exercias of Deelarant's rights shall be commensurately extended. 6.2 rdMtinuous Qoaratio s. Grantee shall proceed contimun aly 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 he -rain. 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 theJande 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 Tend 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 terns, provisions and conditions set forth herein. (b) T_gM. All of the teras 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 sane obligations and duties as are given to and assumed by Declarant herein. Without limiting the generality of the foreioing, Declarant stay 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 zs pr,3vided 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) Raleace by Declarant. Declarant may release any portion of the Land from this: Declaration at any time and for any reason withqut the approval of Grantee. (b) Not Applicable to Declarant. Notwithstanding anything herein contained to the contrary, if Declarant reacquires title to the Lind or any portion thereof at any time after the date hereof and record(s) a notice of 16 termination of these kestrictions in the Office of the Cotmty Recorder of orange Cm=ty. California. these Restrictions shall cease and terminate and be of no further force or effect as to Declarant sad such property, effective as of the date of such recordation. 6.7 Notice. All notices, consents, requests, dasands and other courmacationa provided for herein shall be in writing and shall be deeded to have been duly given if and when personally served or forty eight (43) hours after being sent by United States registered mail. return receipt requested, postage prepared, to the other party at the following respective addresses: DECLARANT: THS IRVTM COMPANY c/o IRVINE LAND MANACEMRNT COMPANY Post Office tax I Newport Basch, California 92658-8904 Attention: President/IIMC i 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 way designate to the other in writing in accordance vith the provision of this Section. 6.8 Governing Law. 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 held by am 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 lay. 6.10 Cautions. 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 natter 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. Title is of the essence of each provision of this Declaration in which time is an element. 17 j n U IM WITNESS WHUEOF, the uadsrxLSnad have executed this Declaration as of the data written below. 'DECLARANT" 6E7{..1�-U THE IRVINE COMPANY, CITY OF Nupo rr BEACH. a MicbIgan corporation �y a California wale pal corporation Ey:_i .�L4�M ` Ey; 4 l Mayor Its: 14' � � Nf r Ey: ATTEST: Its: a d Ey., Its: 7CiEy Clark APPB6 RBCOl44ENDED 0 Ey Its: City Kanager V �* APYROV TO POSH: 41 FO ftp Ey: I -M;--Attorney STATE OF CALIFORNIA ) _) .as COUNTY of 12-- U 1 On this day off the year 19y,:t-before no, the undersigned, a Notary Public in a d for said State, personally geared andpersonally kava to se or proved to me on the bass of to evidence) to be the perm o executed the within instrument as�l�t . y- and respectively, on behalf of T1EE I6VINE COMPANY and Acknowledged to as that a corporation executed it, Yd WITNESS my hand and official seal.CWFKAMSM - PLKWBENEV CXXX oaANor oo�srtr W ootmt E+aOaCtS.+aR Notary Public in and fo said State ADosarn, Dna 18 STAVZ OF CusFuRSU ) ) sat MINTY OF ORANGE ) _ on Niarab 19. 1994. before me, the undaeIQlmd, a Notary Public in and the Stater personally appeared Phil Sansone, known to as to be the Mayor, Robert L. RM, known to me to be the City (tanager, and w _s. Raov10, known to a• to be the City Clerk, on behalf of the CM OF NE9tPOkT BERM. which executed the — within.i.nstrumont pursuant to governing lav and a resolution of its R board of directors and acknowledge to as that the CITY OF NEWPORT BERCN executed it. WITNESS ay hand and official saa I SrAA S1 Lill No c or s i MDRVP UC-ftf,UM AW a �� � .JM M IIBIT I To Declaration of Special Restrictions Legal Description of 'Benefitted Property' EXHIBIT 'I" LEGAL DESCRIPTION BENEFITED PROPERTY FOR THE CITY OF NEWPORT BEACH LIBRARY SITE Parcel (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 slap filed in Book I. Page 88 of Miscellaneous Records Maps in the Office of the County Recorder of said Orange County, described as follows: BEGINNING at the easterly terminus of that certain course shown as having a bearing and length of "South 80'14'38" 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 Naps in said Office of the County Recorder; thence along said right line and along the easterly right-of-way line of Newport Center Drive East, the southerly right-of-way line of Santa Rosa Drive and the southwesterly right-of-way line of San Joaquin Hills Road. all as shown on said map of Tract No. 6015 through the following courses: North 80'14.38" Hest 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" Hest; 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 87'26149"; thence tangent from said curve North 78"27'06" East 69.97 feet to the beginning of a tangent curve concave northwesterly and having a radius of 825.50 feet; thence along said curve northeasterly 444.81 feet through a central angle of 30'52'23"; thence tangent from said curve North 47'34'43' East 2.20 feet to the beginning of a tangent curve concave southerly and having a radius of 25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through a central angle of 89'17126" to a point of reverse curvature with a curve concave northeasterly and having a radius of 6072.50 feet, a radial line of said curve from said point bears North 46'52'09" East; thence along said curve southeasterly 329.29 feet through a central angel of 3'06'25"; thence tangent from said curve South 46'14116" East 31.81 feet to the northerly corner of Parcel 1 as shown on a map filed in Book 13, Page 41 of Parcel Naps 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 44'06114" West 140.00 feet; thence south 45.53'46' East 183.00 feet to the beginning of a tangent curve concave northerly and having a radius of 25.00 feet; thence along said curve southeasterly and easterly 39.27 feet through a central angle of 90'00'00"; thence tangent from said curve North 44'06114" East 103.60 feet to the beginning of a tangent curve concave northwesterly and having a radius of 25.00 feet; thence along said curve northeasterly 13.23 feet through a central angle of 30'19.01" to a non -tangent intersection with said southwesterly right-of-way of San Joaquin Hills Road; thence leaving said boundary and along said right-of-way line South 46'14'16" East 48.72 feet to the northerly corner of Parcel I as shown on a map filed in Book 21, Page 18 of Parcel Haps in said Office of the county Recorder, said corner being a point in a non -tangent curve concave southeasterly and having a radius of 25.00 feet, a radial line of said curve from said point bears South 16'06'05" East; thence along the boundary of said Parcel 1 the following courses: along said curve southwesterly 13.00 feet through a cencra5. angle of 29'47'41"; thence tangent from said curve South 44'06'14" West 104.09 feet to the beginning of a tangent curve concave easterly and having a radius of 25.00 feet; thence along said curve southwesterly and southerly 39.27 feet through a central angle of 90'001001; 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 Naps in said Office of County Recorder; thence leaving the boundary of Parcel 1 as shown thiblL 1 L.&.1 e ... tlpLioo of "B -M.4 Prop.eLy' ADOMMOp. D7rL 1 n..cb It. IM 1aMMEMNKM on said map filed in Book 21, Page 16 of Parcel naps and along the be,tndrn, of Parcel 1 as shown on said sap filed in Book 54, Page 23 of Parcel naps South 45'53146' East 68.09 foot to the beginning of a tangent curve cones" westerly and having a radius of 40.00 feet; thence continuing along said boundary gad said 7. curve southeasterly 36.39 feet through a central angle of 52'07123" to the northwesterly corner of Parcel 3 as shown on Parcel Nap No. 84-706 filed in Book 192, Pages 1 and 2 of Parcel Napa in said Office of the County Recorder. a radial sins frock bears U of staid curve said carnet North 83.461230 Nest; thence alM the boundary of said Parcel 3 and Parcel 2 as shown on said Parcel Nap the following courses: continuing along said curve southerly 26.44 feet through in central , angel of 37'52.37"; thence tangent from said curve South 44"06114" Vest 289.00 feat to the northeasterly corner of Parcel 1 as shown on a map filed in Rook 27, Page 43 of Parcel Maps in said Office of the County Recorder, said corner being IMF, the beginning of a carve tangent to last said course, concave northerly and having a radius of 40.00 feet; thence leaving the boundary of said Parcel 2 and I along the boundary of said Parcel 1 the following courses; along said curve southwesterly and westerly 62.83 feet through it central angel of 90100100"; thence tangent from said curve North 45'53.46" {fest 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 44'06114" Neat 99.44 feet to owl 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 map filed in Book 239, pages 28 through 41, Miscellaneous Maps, records of said County, lying within the following described boundary: Commencing at the center line intersection of Santa Rosa Drive with Newport Center Drive East as shown on said map; thence south 78'27.06" Nast 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 48'22131" to the beginning of s. compound curve concave Northerly and having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve through an angle of 110'52124" to the beginning of a compound curve concave Easterly and having a radius of 1757.00 feet: thence Northerly 1246.07 feet along said curve through an angel of 40'41'58" t3 the beginning of a compound curve concave Southerly and having a radius of 897.00 feet; thence Easterly 2436.09 feet along said curve through an angle off° 155'431571 to the beginning of a compound curve concave Westerly and ;:.avin; a radius of 1557.00 feet; thence Southerly 117.38 feet along said curve through an angle of 4.19110` to the True Point of Beginning. rxAibtt t 1.•x•1 tl••crl p4ton o! `�w•t t1.•6 f•coyrt�` A"FWr.un. 2 Hecate 1t. 1t t3 J MMIBIT 2 To Declaration of Special Restrictions Requires nts for Specific Facilities .y' &EQUUMU!2rfS FOR SPECIFIC FACLUTIES Description of Specific Facilities: A free public library and related driveways, accessways and landscaping, Permitted Use: Public Library and related parking of private passenger automobiles during the hours from 6:00 a.m. to 11:30 p.m, daily. Maximum No. of Buildings: 1 Minimum Gross Floor Area: 10,000 square feet* Maximum Cross Floor Area: 65,000 square feet* Maximum Floor Area Ratio: 50 percent Commencement Date: 12 months from Effective Date Completion Date: 36 montha from Effective Date t By setting forth any required minimum or maxian 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 IMPROVFMTTS Those improvements required by Exh Mit I to the Exchange Agreement, ayc!LL m«crItUM . aruu s Sp"Je!c iMlutlY A0ONAM.DYL Mud 37, 7M2 &EQUUMU!2rfS FOR SPECIFIC FACLUTIES Description of Specific Facilities: A free public library and related driveways, accessways and landscaping, Permitted Use: Public Library and related parking of private passenger automobiles during the hours from 6:00 a.m. to 11:30 p.m, daily. Maximum No. of Buildings: 1 Minimum Gross Floor Area: 10,000 square feet* Maximum Cross Floor Area: 65,000 square feet* Maximum Floor Area Ratio: 50 percent Commencement Date: 12 months from Effective Date Completion Date: 36 montha from Effective Date t By setting forth any required minimum or maxian 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 IMPROVFMTTS Those improvements required by Exh Mit I to the Exchange Agreement, ayc!LL m«crItUM . aruu s Sp"Je!c iMlutlY A0ONAM.DYL Mud 37, 7M2 EXHIBIT 3 To Declaration of Special Eestrictions Subordination Agreement ' b'han Recorded MALI To: TIM IRVINE COMPANY 550 Newport Canter Drive Newport Beach, CA 92660 i 17 jf U Attention: President/ILMC Space above this line for Recorder's use A.P. No. i U, `1 SUBORDINATION AGREEMENT 1 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 0£ 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 munieipal I — corporation ("Ownor"), owner of the "Land" (as defined below), and THE IRVINE COMPANY, a Michigan corporation ("TIC"), declarant under the Declaration (defined below), II. ACKNOWLEDGMENTS �I Owner has executed a Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase (the "Declaration') dated . 19 , and recorded on as Instrument No. In the Official Records of Orange County California as an encumbrance on the title of the real property described as: I Parcel in the City of Newport Beach, County of Orange, State of California, as shown on a parcel map filed in Book _, Pages_ to Inclusive, of Parcel Haps, 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 ("Under") 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 obligarions 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 finnncin; or refinancing of construction of certain improvements on the Land, the plana 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 Eines 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 Ap-1.1 Ravttl,Wt trhibU k"rdtnat1= RLrw" Lk errh 11, 1092 ` a e to TIC and Omer resulting from the loan and for other valuable consideration, the receipt and sufficiency of which is s4knowle4sed by TIC and Owaar. The Deed of Trust and any renewals or extensions thereof shall be and seaain at all time a Tian or charge on the land prior and superior to Declarant'a 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 any portion thereof whose title is acquired by foreclosure, trustee's sale, dasd in lieu of foreclosure or otherwise as provided in Section 5.7 of the Daelaration, and (2) any subsequent owner shall have the cure rights as provided in Section 5.7. Notwithstanding anything to the contrary contained in this Agreement, Lender's foreclosure or similar or related proceeding under the Deed of Trust shall not extinguish the Declaration or TIC's Enforcement Rights, all of which shall survive such proceeding and shall be binding upon any subsequent owner acquiring title from Lender as stated above. M MISCELLANEOUS A. Entire A¢reenent. _ This Agreement shall be the whole and only agreement between TIC and owner with regard to the subordination of TLC's Enforcement Sights 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" "OWNER. THE IRVINE COMPANY, CITY OF NEWPORT BEACH a Hichigan corporation I By: By: Its: Its: Mayor By: ATTEST: Itst- --- By, Its: APPROVED AS TO FORM: By:_ Its: City Attorney � �y�tl �1 4sutctim" ' ISaL UIt i 2 twbordiwtloo A�rsr.nV4rcb tl, Itq M e STATE OF CAUFOWU ) ).ss COUNTY OF ) on . 19—, before so, the uodersisuad, a Notary Public in and for said State, personally appeared and personally known to m (or proved to am an the basis of satisfactory evidence) to be the persons who executed the within instrument an and on behalf of THE IRVINE COMPANY, a Michigan corporation, and aclawwladged to aie that said corporation executed it. WITNESS my hand and official seal. Notary Public in and for said State STATE OF CALIFORNIA ) }.86 COtWrr OF ) On . 19_, before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to we (or proved to me an the basis of satisfactory evidence) to be the person who executed the within instrument as Mayor, on behalf of City of Newport Beach, which executed rhe within instrument pursuant to governing law and a r --solution of its board of directors and acknowledged to me that the City of Newport Beach executed it. WITNESS Lay hand and official zeal. Notary Public in and for said State sp■a161 a.■Lrtrl.lan■ aldtlLLL ) AoCWM.M 3 nub—din■LLM AAr■ w■ Ul■r,b 11, IM Exhibit "E" Insurance Requirements Insurance. In addition to insurance required of Tenant to be obtained, provided, and maintained during the construction of the improvements, and without limiting Tenant's indemnification of City, Tenant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. (a) Certificates of Insurance. Tenant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to execution of this Agreement by the City. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. (b) Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. (c) Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. (d) Coverage Requirements. i. Workers' Compensation Coverage. Tenant shall maintain Workers' Compensation Insurance at statutory limits and Employer's Liability Insurance at One Million and 00/100 Dollars ($1,000,000.00) for his or her employees in accordance with the laws of the State of California. Should the Workers' Compensation policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for all losses that relate in any way to this Agreement. ii. General Liability Coverage. Tenant shall maintain commercial general liability insurance in an amount not less than Two Million and 00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Products Liability Coverage. Tenant shall maintain products liability insurance covering bodily injury and property damage for all activities of the Tenant arising out of or in connection with products or services sold by the Tenant under this Agreement, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. iv. Automobile Liability Coverage. Tenant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Tenant arising out of or in connection with the services to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. V. Professional Liability (Errors & Omissions) Insurance. Tenant shall maintain professional liability insurance that covers Tenant and its directors, officers and employees against claims alleging negligent acts or errors or omissions in the rendering of (or failure to render) professional services to third parties, in an amount not less than One Million and 00/100 Dollars ($1,000,000.00) per claim and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. vi. Fidelity Insurance. Tenant shall maintain fidelity insurance that covers protection for Tenant (and their employees) against the dishonest acts of an employee as well as forgery, safe burglary and computer fraud, in the minimum amount of One Million and 00/100 Dollars ($1,000,000.00) per claim and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. vii. Fire and Extended Coverage. Tenant shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs, equipment, personal property and inventory on or upon the Premises from loss or damage in an amount not less than the replacement cost at the time of loss. viii. Tenant shall maintain loss of rent insurance in the amount of $10,500.00, which amount shall be adjusted annually consistent with the rent increase described in Section 4.1 of the Agreement, insuring that the Rent will be paid to City for a period up to six (6) months if the Premises are destroyed or rendered unusable or inaccessible for commercial purposes by a risk insured under a special form property coverage policy including vandalism and malicious mischief endorsements. ix. Reserved. (e) Endorsements. Each applicable insurance policy shall be endorsed per the following: i. The City, its elected or appointed officers, officials, employees, agents and volunteers, and the State of California, its elected or appointed officers, officials, employees, agents and volunteers, are to be covered as additional insureds, with respect to liability arising out of work performed by or on behalf of the Tenant. (Note: This endorsement applies to the General Liability and Automobile Liability policies only.) ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Tenant's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. (Note: This endorsement applies to the General Liability policy only.) iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (Note: This endorsement applies to the General Liability and Automobile Liability policies only.) iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. (Note: This endorsement applies to the Workers' Compensation, General Liability and Automobile policies only.) V. Reserved. vi. Should the policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. (f) Timely Notice of Claims. Tenant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Tenant's performance under this Agreement. (g) Additional Insurance. Tenant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Exhibit "F" Memorandum of Lease RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code Sec. 6103] MEMORANDUM OF LEASE AGREEMENT WITH OPTIONS FOR RENEWAL This MEMORANDUM OF LEASE Agreement With Options for Renewal ("Memorandum") is dated , 20 , and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City") and Credit Union of Southern California ("Tenant"), a California corporation, concerning the Premises described in Exhibit 'A," attached hereto and by this reference made a part hereof. The term of the Lease is five (5) years, commencing 2015, and ending , 2020. Tenant and City may extend the Term of this Agreement for two (2) additional successive terms of five (5) years each. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: 9 7- S By: Aaron C. Harp P� City Attorney ATTEST: Lo--�_l Date:t By: d;A Leilani I. Brown City ClerkPoRT _ ;AL! FWr/ CITY OF NEWPORT BEACH, a California municipal corporation Date: �rl.�� JC' By: Z David-Kfft City Manager TENANT: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corporation i i Date: 0 t I 1 Dave Gunderson President/CEO Date: I k 15 ! 201 By: Peter Putn Chief Fina ci I Officer [NOTE: Attach Exhibit A from Agreement as Exhibit to this Memorandum behind attached Notary form] ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California } County of ORANGE ) On a �f Z ; . before me, olu-'4io Notary Public, personally appeared r who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity(ies), and that by his signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. i Ignature JUSTIN ART Commission # 2058381 Z "� Notary Public • California (seal) 1 Orange County My Comm. Ex ires Feb 17. 2016 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE } On 0(- `f,Aher nt5 before me, _, 5 {,vl f Notary Public, personally appeared A f'qc�'V who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Ignature JUSTIN ART Commission # 2058381 (Seal),mom Notary Public - California z Orange County r P M Comm. Ex ires Feb 17, 2018 CALIFORNIA• •. < a.9: 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 5Z)ON i`,,E� ) On C>CT (L- 7O 15 before me, Date Here Insert Name and Title'of the Officer personally appeared e \C 1'F F Name(s) of Signer(s) 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 persoa(s)-acted, executed the instrument. JENNIFER ANN MULVEY Commission # 2045022 • Notary Public - California z z Orange County Aty Conon. Ex fres Oct 12 2017 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 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Corporate Officer — Title(s): Partner — I Limited ! General i Individual Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: Signer's Name: Corporate Officer — Title(s): Partner — Limited 1 General Individual Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: 02014 National Notary Association - www.NationalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 EXHIBIT "A" Depiction of Premises 11_1� W�NN Fi ``�tiy�:l fl f 4 - �, /, rr i i=.. �, ✓�� �ti •` ..may _ t // ®��• ,{ ��{ /�: 1 -'c4 '; .. . �" ,i'1 a :s'tV > \ � d y/ ' l .• r 1.✓ r - � . �-t-c N, r t � f�� /• ?'.c�/"`+' :�! ._'sJ1 %�. JSP ,_v ',r .vim' �Y� "".rte q J v r' , �.t+ !.� ,. •���� . i JQ� � d +. r y .� • � � D ah � •�..._ ter. �{ �j ,� ' J l�'Y � �_,� r:' � r� e �• r� f i � .e. -r/ .,`fc.•aC. � ���?.. Y. i ,! .•Z. s� �„ �� /`� �•: ' _ F:� K,r. ^;,i+wH•f Jy �.!' / .� � Y7 �, =.1 _!4' � {'ii �y •� f':ay 1 t '• ' y �� it � •. f'C y!. i. r�i/. 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