HomeMy WebLinkAboutC-2823(B) - Ground Lease (for Library during Construction of New Library)MAY 2 6 1992
ADMINISTRATION
NEWPORT BEACH PUBLIC LIBRARY
GROUND LEASE
between
THE IRVINE COMPANY
and
THE CITY OF NEWPORT BEACH
Dated; March 11, 1992
GROUND LEASE
SUMMARY OF BASIC LEASE PROVISIONS
I. Premises: Parcel 1 as shown on Parcel Map 81 -8 in the City
of Newport Beach, County of Orange, State of
California, filed in Book 81, Pages 8 to 9
inclusive, of Miscellaneous Maps, in the office
of the County Recorder of said County. The
Premises consists of approximately 2 acres.
II.
Use of Premises:
Operation of a Public Library subject to the
provisions of Paragraphs C and D of the Lease,
and for no other use without the prior written
approval of Landlord, which approval may be
withheld by Landlord in its sole discretion.
III.
Commencement Date:
May 8 1992 (See Paragraph 2 of the
Lease).
IV.
Rent Commencement:
Rent shall commence on the "Commencement Date."
V.
Lease Term:
Until completion construction of a new public
library (See Paragraph B)., but no more than three
(3) years.
VI.
Minimum Rent:
$1.00 per year, payable yearly in advance.
VII.
Rent Deposit:
None
VIII.
Minimum Rent
None
Adjustment:
IX.
Percentage Rent:
None
X.
Broker(s):
None
XI. Address for Payments and Notices:
THE IRVINE COMPANY
c/o Irvine Land Management Company
550 Newport Center Drive
Newport Beach, CA 92660
Attn: Manager, Ground Leases
Irvine Land Management -
Company
XII. Tradename: None
XIII. Approvals: None
CITY OF NEWPORT BEACH
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92659
Attn: City Clerk
In the event of any conflict or ambiguity between this Summary of Basic Lease
Provisions and the Ground Lease to which it is attached, the provisions of the
Ground Lease shall govern.
.. . . ..........
GROUND LEASE
TABLE OF CONTENTS
A.
Leased Premises. . ... . . . . . . . . . . . . . . . . . . .
1. Premises and Reservations . . . . . . . . . . . . . . .
2.. Subject to . . . . . . . . . . . . . . . . . . . . . .
B.
Commencement Date and Term . . . . . . . . . . . . . . . . . .
C.
Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.
D.
Specific Use Restrictions. . . . . . . . . . . . . . . . . .
1. Noncomplying Uses,. . . . . . . . . . . . . . . . . . . 1
2. Noncomplying Structures . . . . . . . . . . . . . . . . 2
3. Resubdivisions . . . . . . . . . . . . . . . . . . . . . 2
E.
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
F.
Condition of Premises . . . . . . . . . . . . . . . . . . . . 2
G.
Removal of Improvements . . . . . . . . . . . . . . . . . . . 2
H.
Broker Commissions . . . . . . . . . . . . . . . . . . . . . . 2
I.
Recording . . . . . . . . . . . . . . . . . . . . . . . . . . 3
J.
General Conditions . . . . . . . . . . . . . . . . . . . . . . 3
THIS GROUND LEASE (this "Lease ") is made as of the 11th day of March, 1992,
between THE IRVINE COMPANY, a Michigan corporation, ( "Landlord ") and CITY OF
NEWPORT BEACH, a California municipal corporation, ( "Tenant "), upon the following
terms and conditions:
A. Leased Premises.
1. Premises and Reservations. For and in consideration of the
rents to be paid and subject to the covenants and conditions to be kept and
performed by Tenant as set forth herein, Landlord does hereby lease to Tenant,
and Tenant hereby hires from Landlord, that certain real property described in
Item I of the Basic Lease Provisions (said real property and all improvements
present and from time to time.constructed thereon being hereinafter sometimes
referred to as the "Premises ") consisting of approximately two acres; reserving
to Landlord, its successors and assigns, together with the right to grant and
transfer all or a portion of the same, as.follows:
a. Nonexclusive easements on, over, under or across those
portions of the Premises not improved with buildings or other structures for the
construction, installation,. relocation, replacement, repair, operation and
maintenance of electric, gas, telephone, cable television, water, sanitary sewer
lines, drainage facilities or any other utilities; provided, however, that the
exercise of such rights shall not unreasonably interfere with Tenant's reasonable .
use and enjoyment of the Premises.
b. Nonexclusive easements on, over, under and across .the;
Premises within twenty (20) feet from all property lines bordering on and:
parallel to any public or private street for the construction, :installation, .
relocation, replacement, repair, operation and maintenance of any such utilities,
lines or other facilities.
2. Subject to. This Lease and Tenant's rights hereunder are
.pecifically subject to:
a. General and special taxes and assessments for the current
fiscal tax year and any and all unpaid bonds and /or assessments; and
b. All covenants, conditions, restrictions, reservations,
rights, rights -of -way, easements and all other matters of record or apparent
affecting the Premises or thk use thereof.
B. Commencement Date and Term. The "Commencement Date" of this Lease
shall be that date Closing of the Escrow as defined and subject to that certain
Exchange Agreement and Escrow Instructions made between Landlord and Tenant and
dated f Q, 19yp which date of Closing shall be inserted in item III of
the Summary of Basic Lease Provisions and on Page 1 of the Lease upon such
Closing. From and after the Commencement Date, Tenant shall observe and perform
all obligations pursuant to this Lease. The, term of this Lease shall be the
shorter of three (3) years or vacation and abandonment of the Premises or
discontinuation of use of the Premises for a public library.
C. Use. Tenant shall use the Premises only for operation of the
existing public library on the Premises and for no other use or purpose
whatsoever without the prior written approval of Landlord, which approval may be
withheld by Landlord in its;sole and absolute discretion. Tenant shall devote
the entire Premises to such use. Except'during reasonable periods for repairing,
cleaning and decorating the Premises, Tenant shall continuously and
uninterruptedly during the term hereof occupy and conduct its operations in the
Premises. Tenant shall conduct its activities in the Premises at least during
all regular hours usual for Tenant's type of facility.
D. Specific Use Restrictions. Unless expressly prior approved in
writing by Landlord, which approval may be withheld by Landlord in its sole and
absolute discretion, Tenant shall not:
1
L I , • •
1. Noncomplying Uses. Use, develop or attempt to use or develop
the Premises or any portion thereof for any purpose other than those purposes
expressly permitted under this Lease;
2. Noncomplying Structures. Constru6t or maintain any structure
or improvements on the Premises not in full compliance with all requirements of
law or as contained herein or in any recorded covenants, conditions and
restrictions existing from time to time covering the Premises; or
3. Resubdivisions. Effect any change or amendment to any parcel
or final map covering the Premises or record any further parcel or final map of
the Premises or any portion thereof or facilities thereon, pursuant to California
Government Code Sections 66410 et seq., or any similar statute hereafter enacted,
and any local ordinances adopted pursuant thereto, or file any applications with
any governmental agency with respect thereto.
E. Taxes. Landlord shall apply for an exemption from real property
taxes and assessments charged against the Premises to the extent permitted by
Sections 202 and 202.2 of the Revenue and Taxation Code of California. Any
benefit of such exemption shall accrue to and be enjoyed by City as discharge of
its obligations set forth in Article 2 of the General Conditions (described in
Paragraph 10, below). In the event and to the extent an exemption from real
property taxes is not available, City shall pay such taxes in accordance with
Article 2 of such General Conditions.
F. Condition of Premises. Prior to the Commencement Date, Tenant has
owned the fee title to and has possessed the Premises and the improvements
thereon. Tenant acknowledges that Tenant possesses knowledge of the condition
of the Premises which is superior to the knowledge of Landlord. Tenant will
lease the Premises "AS IS," in its present state and condition, without
representation by Landlord or its representatives as to any matter, whether or
not expressly mentioned herein. No patent or latent condition affecting the
Premises in any way, whether or not known or discoverable or hereafter
discovered, shall affect Tenant's obligation to lease, and use the Premises as
provided in this Lease, nor shall give rise to any right of damages, rescission
or otherwise against Landlord.
G. Removal of Improvements. Upon termination or expiration of this
Lease, Tenant shall have the right to remove all improvements from the Premises.
If Tenant chooses not to remove the improvements or any part thereof, then
Landlord shall demolish all remaining improvements and remove them from the
Premises. Except as provided in this Lease Landlord agrees to pay for the
expense of any such demolition and disposal. Tenant agrees to be solely
responsible for the removal and proper disposal of any asbestos or other toxic
or hazardous materials located in or discharged from any existing structure or
improvement on the Premises. Tenant shall execute or designate itself as the sole
owner and possession of any such hazardous materials on all documents
transferring such hazardous materials to a licensed hazardous waste site for
proper disposal and storage in accordance with applicable laws, rules and
regulations of governmental authorities with jurisdiction. Except to the extent
caused by the gross negligence or willful misconduct of Landlord, Tenant shall
indemnify defend and hold harmless Landlord and its past and present employees,
officers, directors, shareholders, agents and representatives and its and their
respective successors and assigns from loss, liability, damage, costs and expense
(including attorneys' fees) arising from or related to any loss, damage, injury
or claim relating to or concerning the demolition, removal and disposal of any
toxic or hazardous materials from any existing structure or improvement on the
Premises.
H. Broker Commissions. Landlord shall only be responsible for broker',s
commissions to the broker(s), if any, indicated in Item X of the Basic Lease
Provisions in connection with the entering into this Lease. Except with respect
thereto, Landlord and Tenant each represents to the other that to the best
knowledge of each, respectively, no brokerage commission, finder's fee or other
compensation of any kind is due or owing to any person or entity in connection
with this Lease. Each party agrees to and does hereby indemnify and hold the
other free and harmless from and against any and all costs, liabilities or causes
of action or proceedings which may be instituted by any other broker, agent or
finder, licensed or otherwise, claiming through, under or by reason of the
conduct of the indemnifying party in connection with this Lease.
E
I. Recording. Neither Lease nor any short form memorandum of this Lease
shall be recorded.
J. General Conditions. The General Conditions attached hereto as
EXHIBIT 1 are made a part of this Lease and are fully incorporated herein by this
reference. In the event of any conflict between the initial body of this Lease
(i.e. Paragraphs A through J, inclusive) and the General Conditions attached
hereto, the body hereof shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Ground Lease as
of the date just above stated.
"LANDLORD"
THE IRVINE COMPANY,
a Michiga corporation
By;��1�7
Its: Vice dent
By:
Its: A at n ecretar
3
"TENANT"
THE CITY OF NEWPORT BEACH,,
a California municipa corporation
By: �l
Its: Mayor
ATTEST
By: z I'd C!5�>Avno
Its: City Clerk
APPRPVkL RECOMMENDED
By:
Its: Its-T City Manager
APPROVE S TO FORM:
By:
7S- City Attorney
GENERAL CONDITIONS
INDEX
ARTICLE 1 . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 1
TENANT'S OPERATIONS
. . . . . . . . . . . . . . . . . . . . . .
1
ARTICLE 2 . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 1
TAXES AND ASSESSMENTS . . . . . . . . . . . . . . . . . . . . .
. . 1
2.1
Taxes. . . . . . . . . . . . . . . . . . . . . .
. . 1
2.2
Taxes on Rentals . . . . . . . . . . . . . . . . . .
. . 1
2.3
Prorations . . . . . . . . . . . . . . . . . . . . .
. . 2
ARTICLE 3 . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
2
UTILITY CHARGES . . . . . . . . . . . . . . . . . . . . . . . .
. . -2
ARTICLE 4 . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 2
REPAIRS AND
UPKEEP . . . . . . . . . . . . . . . . . . . . . .
. . 2
4.1
No Obligation of Landlord . . . . . . . . . . . . .
. . 2
4.2
Tenant Obligations . . . . . . . . . . . . . . . . .
. . 2
4.3
Cure By Landlord . . . . . . . . . . . . . . .
. . 2
ARTICLE 5 . . . .
. . . . . . . . . . . . . . . . . . . . . . .
. . 3
LANDLORD'S
NONLIABILITY AND INDEMNITY . . . . . . . . . . . . .
. . 3
5.1
Landlord's Nonliability . . . . . . . . . . . . . .
. . 3
5.2
Indemnity By Tenant . . . . . . . . . . . . . . . .
. . 3
5.3
Landlord's Negligence . . . . . . . . . . . . . . .
. . 3
ARTICLE 6 . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 3
INSURANCE .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 3
6.1
Policy Form and Evidence of Coverage. . . . . . . .
. . 3
6.2
Type and Limits of Coverage . . . . . . . . . . . .
. . 4
6.3
Specific Provisions . . . . . . . . . . . . . . . .
. . 5
6.4
Additional Insured . . . . . . . . . . . . . . . . .
. . 5
ARTICLE 7 . .
. . . . . . . . . . . . . . . .. . . . . . . . . . .
. . 5
RESTORATION
. . . . . . . . . . . . . . . . . . . . . . . .
. . 5
7.1
Tenant's Obligations . . . . . . . . . . . . . . . .
. . 5
7.2
Tenant's Option to Terminate . . . . . . . . . . . .
. . 6
ARTICLE 8 . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 6
SUBSTITUTE
PERFORMANCE OR PAYMENT BY LANDLORD . . . . . . . . .
. . 6
ARTICLE 9 . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 6
ASSIGNMENTS
AND SUBLETTINGS . . . . . . . . . . . . . . . . . .
. . 6
9.1
Prohibition . . . . . . . . . . . . . . . . . . . .
. . 6
9.2
Required Information . . . . . . . . . . . . . . . .
. . 7
9.3
Landlord's Options . . . . . . . . . . . . . . . . .
. . 7
9.4
Invalidity . . . . . . . . . . . . . . . . . . . . .
. . 7
9.5
Tenant's Liability . . . . . . . . . . . . . . . . .
. . 8
9.6
Transfer Fee . . . . . . . . . . . . . . . . . . . .
. . 8
ARTICLE 10 . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . 8
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . .
. . 8
10.1
Defaults . . . . . . . . . . . . . . . . . . . . . .
. . 8
10.2
Remedies . . . . . . . . . . . . . . . . . . . . . .
. . 8
(a) Termination . . . . . . . . . . . . . . . . .
. . 8
.(b) Other Remedies . . . . . . . . . . . . . . . .
. . 9
10.3
No Obligation or Liability of Landlord. . . . .
9
10.4
Rent During Unlawful Detainer. . . . . . . . .
9
10.5
Cumulative Rights . . . . . . . . . . . . . . . . .
. . 9
10.6
No Waiver . . . . . . . . . . . . . . . . . . . . .
. . 9
10.7
Expenses and Legal Fees . . . . . . . . . . . . . .
. . 9
ARTICLE 11 . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
. . 10
TRANSFERS AND FINANCING BY LANDLORD . . . . . . . . . . . . . .
. . 10
11.1
Transfers . . . . . . . . . . . . . . . . . . .
10
11.2
Attornment . . . . . . . . . . . . . . . . . . . . .
. . 10
Ground Luse
Exhibit 1
General Conditions
i March 11, 186E
11.3 Subordination . . . . . . . . . . . . .
ARTICLE 12 . . . . . . . . . . . . . . . . . . . . ... . . . . . . .
ARTICLE 13
GOVERNMENTAL TAKING . . . . . . . . . . . . . . . . . . . . . . . .
13.1 Definition of Terms . . . . . . . . . . . . . . . . . .
13.2 Total Taking . . . . . . . . . . . . . . . . . . . . . .
13.3 Partial Taking . . . . . . . . . . . . . . . . . . . . .
13.4 Allocation of Award. . . . . . . . . . . . . . . . .
13.5 Effect of Termination . . . . . . . . . . . . . . . . .
13.6 Voluntary Conveyance . . . . . . . . . . . . . . . . . .
ARTICLE 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
MINERAL LAND WATER RIGHTS RESERVATIONS . . . . . . . . . . . . . .
ARTICLE 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SAFETY AND HEALTH . . . . . . . . . . . . . . . . . . . . . . . . .
10
11
11
11
11
11
11
11
11
11
11
12
12
ARTICLE 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
STATEMENT OF TENANT . . . . . . . . . . . . . . . . . . . . . . . . 12
16.1 Contents and Effect . . . . . . . . . . . . . . . . . . 12
16.2 Effect of Tenant's Failure . . . . . . . . . . . . . . . 12
ARTICLE 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE 18
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . .
18.1 Notices . . . . . . . . . . . . . . . . . . . . . . . .
18.2 Proration . . . . . . . . . . . . . . . . . . . . . . .
18.3 Interest on Late Payments . . . . . . . . . . . . . . .
18.4 Accord and Satisfaction . . . . . . . . . . . . . . . .
18.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . . .
18.6 Surrender or Cancellation . . . . . . . . . . . . . . .
18.7 Survival of Indemnities . . . . . . . . .. . . . . . . .
18.8 Corporate Authority . . . . . . . . . . . . . . . . . .
18.9 Entire Agreement . . . . . . . . . . . . . . . . . .
18.10 Amendment of Lease . . . . . . . . . . . . . . . . . . .
18.11 Certain Rules of Construction. . . . . . . . . . . . .
18.12 Specific Performance . . . . . . . . . . . . . . . . . .
18.13 Execution of Lease; No Option . . . . . . . . . . . . .
18.14 Controlling Law . . . . . . . . . . . . . . . . . . . .
18.15 Changes Requested by Lenders . . . . . . . . . . . . . .
ii
13
13
13
13
13
13
13
13
13
14
14
14
14
14
14
14
15
15
15
Ground Lease
Exhibit 1
General conditions
March 11. 1992
GENERAL CONDITIONS
TO GROUND LEASE
E
The following General Conditions to Ground Lease are incorporated in and
made a part of that certain Ground Lease by and between THE IRVINE COMPANY, a
Michigan corporation, as "Landlord," and THE CITY OF NEWPORT BEACH, a California
Municipal corporation, as "Tenant," (the "Lease ") as though fully set forth at
length therein, to wit:
ARTICLE 1
TENANT'S OPERATIONS
The Premises and all improvements constructed and maintained thereon shall
be used by Tenant for the use or uses specified in the Lease and for no other use
or purpose. Tenant shall not itself use or permit any other person or entity to
use the Premises, or any party thereof, for any purposes which may materially
damage or harm the Premises or any improvements on or.adjacent thereto, or the
image or attractiveness thereof, or for any improper, offensive or immoral use
or purpose, or in any manner which shall constitute waste, nuisance or public
annoyance; and Tenant shall conform to, and cause all persons using or occupying
any part of the Premises to comply with, all public laws, ordinances and
regulations from time to time applicable thereto and to all operations thereon
and with any recorded covenants, conditions and restrictions existing from time
to time covering the Premises.
ARTICLE 2
TARES AND ASSESSMENTS
2.1 Taxes, Tenant shall be responsible for, and agrees to pay, not later
than ten (10) days prior to delinquency, any and all general and special taxes,
assessments, levies, fees and other governmental charges of every kind or nature
(hereinafter collectively called "taxes ") levied or assessed against the Premises
and all improvements thereto or thereon and applicable to the term of this Lease,
by any municipal, county, state, federal or other taxing or assessing authority
upon, against or with respect to (i) the Premises, (ii) all furniture, fixtures,
equipment and any other personal property of any kind placed, installed or
located within, upon or about the Premises, (iii) all alterations, additions or
improvements of whatsoever kind or nature, if any, made to the Premises, and (iv)
rentals or other charges payable by Tenant to Landlord, irrespective of whether
any of the items described in clauses (i) through (iv) above are assessed as real
or personal property, and irrespective of whether any of such items are assessed
to or against Landlord or Tenant, but expressly excluding any general net income,
franchise or inheritance tax levied upon or payable by Landlord. Tenant shall,
not later than the first day of the ten (10) day period described above, or upon
written request of_the Landlord if payment is made earlier, furnish to the
Landlord a copy of the receipted tax bill or other proof of said payment. Tenant
hereby agrees to protect and hold harmless Landlord and the Premises and all
improvements in, on, or about the same from all liability for any and all such
taxes, together with any interest, penalties or other sums thereby imposed, and
from any sale or other proceeding to enforce payment thereof. Tenant shall cause
all taxes imposed upon any personal property situated in, on or about the
Premises to be levied or assessed separately from said Premises and not as a lien
thereon. Tenant hereby appoints Landlord as its attorney -in -fact for the limited
purpose of performing, at Tenant's sole cost and expense, all acts necessary to
cause the Premises to be separately assessed from other lands of Landlord. If
at any time from the execution of this Lease through the term of this Lease any
of such taxes are not so levied and assessed separately and directly to Tenant,
Tenant shall pay to Landlord its proportionate share thereof, being that portion
of such taxes that the area of the Premises bears to the .total area of all land
within the entire tax assessment parcel, as determined by Landlord.
2.2 Taxes on Rentals. Should the United States Government or the State
of California or any 'political subdivision thereof or any governmental authority
having jurisdiction (by way of substitution for all or any part of the "taxes"
1
Ground Luaa
Exhibit i
General Conditions
Maroh 11, 1992
otherwise required to be paid in whole or in part by Tenant pursuant to Section
2.1, or in addition thereto), impose a capital levy or a tax, assessment and /or
surcharge of any kind or nature whatsoever (including but not limited to a value
added tax) upon, against, in connection with or with respect to the rentals or
other charges payable to Landlord by Tenant or on the income of Landlord derived
from the Premises or on Landlord's ownership of the Premises or any portion
thereof or interest therein, or, otherwise, then, in any such case, such tax,
assessment and /or surcharge shall be deemed to constitute a tax and /or assessment
against the Premises and Tenant shall pay to Landlord its proportionate share
thereof as defined in Section 2.1, as billed by Landlord.
2.3 Prorations. All such taxes and assessments for any partial year of
this Lease shall be prorated between Landlord and Tenant on the basis of the
fiscal year of the appropriate governmental authority or authorities, provided
that Tenant, as the previous owner of the Premises, shall be responsible for all
such taxes and assessments attributable to any partial year preceding its
tenancy.
ARTICLE 3
UTILITY CHARGES
Tenant shall pay all charges for gas, water, sewer, electricity, telephone
and other utility services used on the Premises during the Lease term, and shall
indemnify Landlord and the Premises from and against any such charges or liens
arising therefrom. If any such charges are not paid when due, Landlord may pay
the same, and any amount so paid by Landlord shall thereupon become due to
Landlord from Tenant as additional rent, together with interest thereon as
provided in Section 18.3 below.
ARTICLE 4
REPAIRS AND UPKEEP
4.1 No Obligation of Landlord. Except as specifically provided to the
contrary in'the Ground Lease to which these General Conditions are attached,
Landlord shall not be required or obligated to make any changes, alterations,
additions, improvements or repairs in, on, or about the Premises, or any part
thereof, during the term of this Lease.
4.2 Tenant Obligations. At all times during said terms Tenant shall, at
its sole cost and expense, keep and maintain the Premises. and all improvements
thereon and all facilities appurtenant thereto in first -class condition, order
and repair, in a clean, sanitary, and attractive condition, free from weeds,
rubbish and debris. Tenant agrees to keep in full force and effect throughout
the term hereof a contract or other arrangement, satisfactory to Landlord in its
sole discretion, for maintenance of all landscaping on the Premises. Any
landscaping contract shall be maintained with such company or companies,
person(s) or entities as Landlord shall approve and in compliance with such
requirements as are imposed therewith by any insurance company as provided in
Article 6 hereof. All repairs, alterations, replacements or additions to
Improvements shall be at least equal to the original work in class and quality.
Tenant shall also be responsible at all times for determining that all
Improvements and the plans and specifications therefor conform and comply in all
respects with these provisions, all matters of record, all applicable
governmental requirements, and all exterior architectural design, location and
color criteria as may be approved by Landlord. Tenant shall also adopt and
maintain such standards of interior property space maintenance and appearance as
shall be reasonable and customary for similar operations or enterprises and shall
enforce compliance by all tenants or users with such standards. Tenant shall
defend, indemnify and hold harmless Landlord against all actions, claims and
damages by reason of Tenant's failure to comply with any of the foregoing
provisions.
4.3 Cure By Landlord. Notwithstanding Paragraphs 4.1 and 4.2 above, in
the event Tenant fails, within fifteen (15) days after the date of.a notice of
failure in writing from Landlord so to do, to comply with the provisions of
Paragraph 4.2 above, Landlord shall be entitled, but shall not be obligated, to
01
Ground Lana
Eshibit 1
General Conditions
March 11. 1992
• i
enter the Premises and perform such work as may be necessary to restore the
Premises and improvement to the condition required by Paragraph 4.2 above, and
all of Landlord's expenses in connection with such work shall be paid by Tenant
to Landlord upon demand, together with interest thereon as provided in Article
8 below.
ARTICLE 5
LANDLORD'S NONLIABILITY AND INDEMNITY
5.1 Landlord's Nonliability. Landlord shall not be liable for any loss,
damage, injury, liability, claim, demand or cause of action of any kind or,
character to any person (including death) or property arising from, related to
or caused by the development or use of the Premises including, without
limitation, any such loss, damage, injury, liability, claim, demand or cause of
action arising from, related to or caused by (a) any use of the Premises, or any
part thereof, (b) any defect in any building, structure or other improvement
thereon or in any equipment or other facility located therein or thereon, (c) any
act or omission of Tenant, or of any of its agents, representatives, contractors,
employees, servants, customers, licensees or invitees, (d) any accident on the
Premises or any fire or other casualty thereon, (e) the failure of Tenant to
maintain the Premises in safe condition, (f) any accident off the Premises caused
by acts or occurrences on the Premises, (g) any act or failure to act of Landlord
in enforcing the terms and conditions of this Lease or any other lease, covenant,
or obligation of any third party (such as a lease of adjoining land)., or in
reviewing, approving, disapproving, consenting to or joining in any plans,
specifications, layout, design, application or permit relating to the use or
development of the Premises, or (h) any other cause whatsoever in connection with
Tenant's use of the Premises or Tenant's performance under this Lease
(collectively, the "Claims "). Tenant, as a material part of the consideration
of this Lease, hereby waives on its behalf all claims and demands against
Landlord for any such Claims.
5.2 Indemnity By Tenant. Subject to Section 5.3 below, Tenant shall
defend, indemnify and hold harmless Landlord and Landlord's directors, officers,
employees, agents and representatives and their respective successors and assigns
(the "Indemnitees "), and each of them, from and against any and all Claims of
parties other than Tenant, and all costs and expenses (including attorneys' fees)
relating thereto. Landlord may, at its option, require Tenant to assume the
defense of Landlord or its Indemnitees, or any of them, in any action covered by
this Section through counsel satisfactory to Landlord. Payment shall not be a
condition precedent to the foregoing indemnities.
5.3 Landlord's Negligence, Except with regard to those claims described
in subsection 5.1(g) above and those claims for which Tenant has insurance or is
required under this Lease to have insurance, for which Landlord shall have
absolutely no liability, nothing contained in this Lease shall operate to relieve
Landlord from any loss, damage, injury, liability, claim, demand, cause of
action, cost or expense which is determined by a court of competent jurisdiction
was proximately caused by the gross negligence or willful misconduct of Landlord
or its agents or employees.
ARTICLE 6
INSURANCE
6.1 Policy Form and Evidence of Coverage. All policies of insurance
provided for herein shall be written as primary policies with responsible and
solvent insurance companies authorized to do business in California with a
policyholder's rating of "A" (excellent) or better and a financial rating of "X"
or better in Bests' Key Rating Guide. Prior to the commencement of the period
during which Tenant must obtain the specific insurance - policies as set forth in
Paragraph 6.2(a) below, (and at all times thereafter during the term Tenant is
required to maintain such policies as set forth in said Paragraph 6.2(a)) Tenant
shall supply Landlord a true and correct copy of all such policies.
Notwithstanding anything to the contrary contained within this provision,
Tenant's obligations to carry insurance as provided herein may be brought within
the coverage of a so- called "blanket" policy or policies or insurance carried and
Ground Lease
Exhibit 1
General Conditions
3 March 11. 1992
maintained by Tenant, so long as such policy or policies allocate to the Premises
the full amount of insurance required hereunder and contain the applicable
provisions required under Paragraph 6.3 below or Tenant may maintain a program
of self insurance which is reasonably satisfactory to Landlord as providing
substantially the same protections to Landlord as would be provided by policies
of insurance maintained in accordance with this Lease. In the event that Tenant
fails to procure, maintain and /or pay for at the times and for the durations
specified in this Lease, any insurance required by this Lease, or fails to carry
insurance required by law or governmental regulation, Landlord may (but without
obligation to do so) at any time or from time to time, and without notice,
procure such insurance and pay the premiums therefor, in which event Tenant shall
repay the Landlord all sums so paid by Landlord, together with interest thereon
as provided in .Paragraph 19.3 below and any costs or expenses incurred by
Landlord in connection therewith, within ten (10) days following Landlord's
written demand to Tenant for such payment.
6.2 Type and Limits of Coverage.
(a) Tenant, at its sole cost and expense, shall, during the
required periods set forth below in this section, procure, pay for and keep in
full force and effect the following insurance coverages: From and after the
first day the Premises are open for pperations (and Tenant shall not operate the
Premises until evidence of the required insurance is provided to Landlord) until
the later of the expiration or termination of the Lease or the date Tenant
surrenders physical possession of the Premises to Landlord, the following
insurance is required;
(1) Worker's Compensation Insurance as required by law,
together with Employers Liability Insurance in an amount satisfactory to
Landlord;
(2) Comprehensive General Liability coverage with
respect to the Premises and operations by or on behalf of Tenant of a library
facility or other activity as may be permitted under this Lease in, on or about
the Premises, with limits of not less than Five Million Dollars ($5,000,000) or
the level of such insurance then carried by Tenant, whichever is greater,
combined single limit per occurrence for bodily injury, death and property damage
liability, with coverage including but not limited to:
(A) Premises Operation Coverage,
(B) Products /Completed Operations Coverage,
(C) Owner's and Independent Contractor's
Protective Liability,
(D) Owned, Nonowned, Hired or Leased Motor
Vehicle Liability,
(E) Blanket Contractual Liability,
(F) Personal Injury Liability for Groups of
Offenses A, B and C with Exclusion (c)
deleted,
(G) Broad From Property Damage Liability,
including completed operations, and
(H) Host Liquor Liability in the event any
alcoholic beverages are to be served in or
on the Premises.
(3) With respect to any alterations, construction or
reconstruction required or permitted to be made by Tenant hereunder, OCP
Liability and "All Risk" Builders Risk Policy in amounts satisfactory to
Landlord;
4
Ground Loasa
Bahlblt 1
oanaral Condltlona
Marah 11, 1992
(4) Fire and Extended Coverage insurance, covering
fire, vandalism, malicious mischief, flood, and such additional perils as are now
or hereafter may be included in a Standard Fire, Extended Coverage and Special
Extended Coverage endorsement from time to time in general use in Orange County,
California, insuring all improvements on the Premises and all merchandise, trade
fixtures, furnishings, equipment and other items of personal property located on
or in the Premises, in an amount equal to not less than ninety percent (908) of
the actual replacement cost thereof.
(b) Notwithstanding the provisions of Paragraph 6.2(a) above
regarding the time when any required insurance must be in force, for any such
insurance which is obtained under a "claims made" policy rather than an
"occurrence" policy, Tenant shall procure and maintain such insurance for a
period of one (1) year beyond the last date required in Paragraph 6.2(a).
6.3 Specific Provisions. Each policy evidencing insurance required to
be carried by Tenant pursuant to this Article shall contain the following
provisions and /or clauses: (i) a cross - liability clause; (ii) a provision that
such policy and coverage evidenced thereby shall be primary and that any coverage
carried by Landlord shall be noncontributing with respect to any policies carried
by Tenant; (iii) a provision in the form specified below including Landlord and
any other parties in interest designated by Landlord as an additional insured;
(iv) a waiver by the insurer of any right to subrogation against Landlord, its
agents, employers and representative which arises or might arise by reason of any
payment under such policy or by reason of any act or omission of Landlord, its
agents, employees or representatives, (v) a severability of interest clause; (vi)
a provisions that the insurer will not cancel or change the coverage provided by
such policy without first giving Landlord thirty (30) days' prior written notice.
The property insurance policy shall be issued in the name of Landlord and Tenant
and shall provide that property insurance proceeds shall be paid to an
institutional lender or title company acceptable to Landlord and Tenant (the
"insurance trustee ") for disposition pursuant to Article 7. All costs of the
insurance trustee shall be paid by Tenant. Nothing in this Article shall limit
the obligations or liabilities of Tenant under the other provisions of this
Lease.
6.4 Additional Insured. Landlord shall be included as an additional
insured under the liability coverage specified in this Article with the following
provision included within each applicable policy: "It is understood and agreed
that coverage afforded by this Policy shall also apply to The Irvine Company, a
Michigan corporation, and its officers, directors, agents, servants, employees,
divisions, subsidiaries, partners, shareholders and affiliated companies as
additional insured, but only with respect to legal liability or claims caused by,
arising out of or resulting from the acts or omissions of the named insured or
of others performing acts on behalf of the named insured or otherwise related to
use of property leased or controlled by the named insured."
ARTICLE 7
RESTORATION
7.1 Tenant's Obligations. If the Premises or any portion thereof or any
building or other Improvement on the Premises, or any part thereof, shall be
damaged or destroyed by fire or other casualty during the term of this Lease,
Tenant shall, at its own cost and expense, repair or restore the same according
to the original plans thereof or according to such modified plans as shall be
previously approved in writing by Landlord, and such work of repair or
restoration shall be commenced within ninety (90) days after the damage or loss
occurs and shall be completed with due diligence but not longer than one hundred
eighty (180) days after such work is commenced plus force majeure, and such work
shall be otherwise done in accordance with the quality and scope of the original
improvements upon the Premises, and all insurance proceeds collected for such
damage or destruction shall be applied to the .cost of such repairs or
restoration, and if (i) there are no insurance proceeds or (ii) the same shall
be insufficient for said purpose, Tenant shall make up the deficiency out of its
own funds. Should Tenant fail or refuse to make the repairs or restoration as
hereinabove provided, then in such event said failure or refusal shall constitute
a default under the .covenants and conditions hereof and all insurance proceeds
Ground Lau•
Exhibit 1
General Conditions
5 March 11, 1992
so collected shall be forthwith paid over to and be retained by Landlord on its
own account and Landlord may, but shall not be required to, use and apply the
same for and to demolish the improvements on the Premises and to the repair or
restoration of said Premises and Landlord may, at its option, terminate this
Lease as elsewhere provided herein.
7.2 Tenant's Option to Terminate. Notwithstanding anything to the
contrary contained in the preceding section, if at any time during the term
hereof any building on the Premises shall be materially damaged by fire or other
casualty, then Tenant shall have the option, to be exercised within seventy -five
(75) days after such event, to repair or restore said building as hereinabove
provided, or to terminate this Lease by written notice thereof to Landlord, which
option to terminate shall be conditioned as follows:
(a) Tenant shall surrender to Landlord possession of the Premises,
and shall pay to Landlord all rent accruing to the date of said surrender,
including, without limitation, Tenant's prorata share of all unpaid taxes and
assessments for the Premises, and any other charges properly owing Landlord; and
(b) Thereupon, but not before, said Lease shall terminate.
(c) The insurance proceeds collected and paid for such damage, to
the extent available for said purposes, shall be applied first to pay the then
balance due any authorized encumbrancer, if any, second to the cost to remove the
improvements from the Premises and to cleanup and. restore the Premises to a
buildable condition, and the unexpended balance thereof, if any, shall be paid
to Tenant.
ARTICLE 8
SUBSTITUTE PERFORMANCE OR PAYMENT BY LANDLORD
In the event Tenant shall fail to pay and discharge or cause to be paid and
discharged, when due and payable, any tax, assessment, or other charge upon or
in connection with the Premises, or any lien or claim for labor or material
employed or used in, or any claim for damages arising out of the construction,
repair, restoration, replacement, maintenance and use of the Premises and the
improvements thereon, or any, judgment on any contested lien or claim, or any
insurance premium or expense in connection with the Premises and improvement, or
any other claim, charge or demand which Tenant has agreed to pay or cause to be
paid under the covenants and conditions of this Lease, and such failure continues
for thirty (30) days following written notice from Landlord so to do, then, in
addition to any other remedies specified herein, Landlord may at its option pay
any of the aforementioned sums, or settle or discharge any action therefor, or
judgment thereon. All costs, expenses and other sums incurred or paid by
Landlord in connection with any of the foregoing shall be paid by Tenant to
Landlord within ten (10) days following demand therefor, together with interest
thereon at the rate of interest provided in Paragraph 18.3 below from the date
incurred or paid, and any default in such repayment shall constitute a breach of
the covenants and conditions of this Lease in the same manner as failure to pay
rent when due.
ARTICLE 9
ASSIGNMENTS AND SUBLETTINGS
9.1 Prohibition. Neither Tenant nor any trustee, receiver or other
successor to Tenant shall, either voluntarily or by operation of law, assign,
sell, encumber, pledge or otherwise transfer all or any part of Tenant's
leasehold estate hereunder, or permit the Premises to be occupied by anyone other
than Tenant or Tenant's employees, or sublet the Premises or any portion thereof,
without Landlord's prior written consent in each instance. Consent by Landlord
to one or more assignments of this Lease or to one or more sublettings of the
Premises shall not operate to limit Landlord's rights under this section in any
way, If Tenant or any permitted successor tenant is a corporation which, under
the then current guidelines published by the Commissioner of Corporations of the
State of California, is not deemed a public corporation, or is an unincorporated
association or partnership, and there occurs a transfer, assignment or
Ground Lease
Lxhlbit 1
General Conditions
6 Much 11, 1992
hypothecation, whether in one transaction or a series of transactions, of any
stock or interest in such corporation, association or partnership in the
aggregate in excess of twenty -five percent (25%), then such transfer shall be
deemed an assignment within the meaning and provisions of this Article.
9.2 Required Information. In connection with requesting Landlord's
consent to an assignment of this Lease or a subletting of the Premises or any
portion thereof for which Landlord's consent is required, Tenant shall submit in
writing to Landlord: (i) the name of the proposed subtenant or assignee; (ii)
the nature of the proposed subtenant's or assignee's business to be carried on
in the Premises; (iii) the terms and provisions of the proposed sublease or
assignment; and (iv) such reasonable information as Landlord may request
concerning the proposed subtenant or assignee, including by not limited to a
balance sheet of the proposed subtenant or assignee as of a date not earlier than
ninety (90) days prior to the request for Landlord's consent, statements of
income or profit and loss of the proposed subtenant or assignee for the two (2)
year period preceding the request for Landlord's consent and a written statement
in reasonable detail as to the business experience of proposed subtenant or
assignee during the five (5) years preceding the request for Landlord's consent.
Landlord shall not unreasonably withhold its consent to any assignment of this
Lease or subletting of the Premises or any portion thereof. However, Tenant
agrees that it shall be reasonable for Landlord to deny any proposed assignment
or sublease if (a) the proposed subtenant's or assignee's business to be carried
on in the Premises will not be a free public library, (b) the library to be
operated on the Premises by the proposed assignee or subtenant is not of a first -
class character and nature or in any event is not generally consistent with the
character and nature of the library operated by Tenant on the Premises, (c) the
character, moral stability, reputation,_ business experience and financial
responsibility of the proposed assignee or subtenant are not satisfactory to
Landlord or in any event are not at least equal to those which were possessed by
Tenant as of the date of execution of this Lease, or (d) there exists any uncured
default (or any event which with the giving of notice or passage of time or both
would constitute such a default) by Tenant under this Lease (unless the proposed
subtenant or assignee has made arrangements satisfactory to Landlord in its sole
discretion to cure such default (or event) before or immediately after such
sublease or assignment).
9.3 Landlord's Options. At any time within thirty (30) days after
Landlord's receipt of the information specified in Section 9.2 above, Landlord
may by written notice to Tenant elect to (i) consent to the subletting or
assignment upon the terms and to the subtenant or assignee proposed, (ii)
condition such consent upon the assumption by such assignee or sublessee of all
obligations hereunder and such other reasonable conditions as Landlord may
impose, or (iii) refuse to give its consent. Tenant agrees that no assignment
or subletting consented to by Landlord shall impair or diminish any covenant,
condition or obligation imposed upon Tenant by this Lease or any right, remedy
or benefit afforded Landlord by this Lease. If Landlord consents to such
assignment or subletting, Tenant may thereafter within ninety (90) days after the
expiration of said thirty (30) day period enter into a valid assignment or
sublease of the Premises or portion thereof, upon the terms and conditions
described in the information required to be furnished by Tenant to Landlord
pursuant to Section 9.2 above or other terms not less favorable to Tenant,
provided, however, that any material change in the terms of such subletting or
assignment from those approved by Landlord shall be subject to Landlord's consent
as provided in this Article.
9.4 Invaliditv. No assignment, sale, encumbrance, pledge or transfer
whether voluntary.or involuntary, by operation of law, under legal process or
proceedings, or otherwise, shall be valid or effective without such prior written
consent and approval of Landlord as required hereunder. Should Tenant attempt
to make or suffer to be made any such transfer, assignment or subletting, except
as aforesaid, or should any of Tenant's rights under this Lease be sold or
otherwise transferred by or under court order or legal process or otherwise, then
and in any of the foregoing events Landlord may, at its option, terminate this
Lease forthwith by written notice thereof to Tenant. Should Landlord consent to
any such transfer, assignment or subletting, such consent shall not constitute
a waiver of any of the restrictions of.this.Article, and the same shall apply to
each successive transfer, assignment or subletting hereunder, if any.
7
Ground Lease
Exhibit 1
General Conditions
March 11, 1992
9.5 Tenant's Liability.. Unless otherwise specifically agreed in writing
by Landlord and'Tenant, no subletting or assignment, even with the consent of
Landlord, shall relieve Tenant of its rental or other obligations to be performed
by Tenant hereunder. The acceptance by Landlord of any payment due hereunder
from any other person shall not be deemed to be a waiver by Landlord of any
provision of this lease or to be a consent to any assignment or subletting.
9.6 Transfer Fee. If Landlord consents to any transfer or assignment by
Tenant, hereunder, Tenant shall pay a transfer fee to Landlord of One Thousand
Dollars ($1,000) in connection with the processing and documentation thereof.
ARTICLE 10
DEFAULTS AND REMEDIES
10.1 Defaults. The occurrence of any one or more of the following events
shall constitute a default hereunder by Tenant:
(a) Abandonment of the Premises. Abandonment is herein defined to
include, but is not limited to, any absence by Tenant from the Premises for ten
(10) consecutive days or longer.
(b) Failure by Tenant to make any payment of rent or other payment
or charge required to be made by Tenant hereunder within ten (10) days after the
due date therefor. Landlord shall give Tenant three (3) days written notice of
such default, which notice, as well as any notice provided in (c) below, shall
be in lieu of, and not in addition to, any notice required under California Code
for Civil Procedure Paragraph 1161, as amended.
(c) Failure by Tenant to perform any other express or implied
covenants or provisions herein contained (other than any breach under the Article
entitled "Assignment and Subletting" for which immediate notice of termination
may be given) where such failure continues for thirty (30) days .after written
notice thereof from Landlord to Tenant specifying the particulars of such
default; provided, further, that if the nature of Tenant's default is such that
more than thirty (30) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant shall commence such cure within
said thirty (30) day period and thereafter diligently prosecute such cure to
completion.
(d) Tenant's (i) application for, consent to, or suffering of the
appointment of a receiver, trustee or liquidator for all or for a substantial
portion of its assets; (ii) making a general assignment for the benefit of
creditors; (iii) admitting in writing its inability to .pay its debts or its
willingness to be adjudged a bankrupt or the subject of relief or protection
under the Bankruptcy Act (Title II of the United States Code; 11 U.S.C. 101 at
seq., as amended from time to time) or any similar law, whether federal, state
or otherwise for the relief or protection of debtors (collectively, the
"Bankruptcy Laws "), (iv) becoming unable to or failing to pay its debts as they
mature; (v) being adjudged a bankrupt or the subject of relief or protection
under the Bankruptcy Laws; (vi) filing a voluntary petition or suffering an
involuntary petition under the Bankruptcy Laws or any other bankruptcy,
arrangement, reorganization or insolvency law (unless in the case of an
involuntary petition, the same is dismissed within thirty (30) days of such
filing); (vii) convening a meeting of its creditors or any class thereof for
purposes of effecting a moratorium, extension or composition of its debts; or
(viii) suffering or permitting to continue unstayed and in effect for ten (10)
consecutive days .any attachment, levy, execution or seizure of all or a
substantial portion of Tenant's assets or of Tenant's interest in this Lease.
10.2 Remedies. In any of such events of default and in addition to any
or all other rights or remedies of the Landlord hereunder or by the law provided,
Landlord may exercise the following remedies at its sole option:
(a) Termination. Landlord may terminate this Lease and the rights
of Tenant hereunder by written notice to Tenant or any other lawful means, in
which event this Lease and all rights of Tenant shall terminate and Tenant shall
Ground Laus
6shlblt 1
Gsurst Conditions
8 March 11, 1992
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant:
(i) The worth at the time of award of the unpaid rent which
had been earned at the time of termination;
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such loss that Tenant proves could have been
reasonably avoided;
(iii) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of such loss that Tenant proves could have been reasonably avoided;
, (iv) Any other amount necessary to compensate Landlord for all
the detriment proximately cause by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, the cost of recovering
possession of the Premises, expenses of reletting, including necessary repair,
renovation and alteration of the Premises, reasonable attorneys' fees, and any
other reasonable costs.
The "worth at the time of award" of the amounts referred
to in subparagraphs (i) and (ii) above shall be computed by allowing interest at
ten percent (108) per annum from the dates such amounts accrued to Landlord. The
worth at the time of award of the amount referred to in subparagraph (iii) above
shall be computed by discounting such amount at one (1) percentage point above
the discount rate of the Federal Reserve Bank of San Francisco at the time of
award.
(b) Other Remedies. Landlord may pursue any other remedy available
at law or in equity including the right to damages, injunction or specific
performance.
10.3 No Obligation or Liability of Landlord. Landlord shall be under no
obligation to observe or perform any covenant of this Lease on its part to be
observed or performed which accrues after the date of any default by tenant
hereunder. If Landlord shall elect to re -enter the Premises, Landlord shall not
be liable for any damages by reason of such re- entry.
10.4 Rent During Unlawful Detainer. In any action for unlawful detainer
commenced by Landlord against Tenant by reason of any default hereunder, the
reasonable rental value of the Premises for the period of the unlawful detainer
shall be deemed to be the amount of rent, additional rent and other charges or
payments to be made by Tenant under this Lease for such period, unless Tenant
shall prove to the contrary by competent evidence.
10.5 Cumulative Rights. The rights and remedies reserved to Landlord
hereunder, including those not specifically described, shall be cumulative, and
except as otherwise may be provided by California statutory law in effect at the
time, Landlord may pursue any or all of such rights and remedies, at the same
time or separately.
10.6, No Waiver. No delay or omission of Landlord to exercise any right
or remedy shall be construed as a waiver of any such right or remedy or of any
default by Tenant hereunder. The acceptance by Landlord of rent or any other
payments hereunder shall not be a waiver of any preceding breach or default by
Tenant of any provision hereof, other than the failure of Tenant to pay the
particular rent or any other payments accepted, regardless of Landlord's
knowledge of such preceding breach or default at the time of acceptance for such
rent or any other payments, or a waiver of Landlord's right to exercise any
remedy available to Landlord by virtue of such breach or default.
10.7 Expenses and Legal Fees. If either party incurs any expense,
including reasonable attorneys' fees, in connection with any action or proceeding
instituted by either party by reason of any default or alleged default of the
other party hereunder, the party prevailing in such action or proceeding shall
G
Ground Loss
6xhiblt 1
Gansral Conditions
March 11, 1992
_
be entitled to recover its said reasonable expenses from the other party. For
purposes of this provision, in any unlawful detainer or other action or
proceeding instituted by Landlord based upon any default or alleged default by
Tenant hereunder, Landlord shall be deemed the prevailing party if in any action
or preceding arising in connection with any default or alleged default by Tenant
hereunder: (a) judgment is entered in favor of Landlord; or (b) prior to trial
or judgment Tenant shall pay all or any portion of the rent and charges claimed
by Landlord, eliminate the condition, cease and act, or otherwise got to cure the
omission claimed by Landlord to constitute a default by Tenant hereunder.
ARTICLE 11
TRANSFERS AND FINANCING BY LANDLORD
11.1 Transfers. The term "Landlord" as used in this Lease, shall mean and
include only the fee owner or owners of the Premises at the time in question, and
in the event of any transfer or transfer of' the title to said Premises, Landlord
shall be automatically freed and relieved, from and after the date of such
transfer and conveyance, of all covenants or obligations on the part of Landlord
contained in the Lease thereafter to be performed. The covenants and obligations
contained in this Lease on the part of Landlord shall, subject to the foregoing,
be binding on Landlord, its successors and assigns, only during and in respect
to their respective successive periods of ownership. No holder of a mortgage
and /or deed of trust to which this Lease is or may be subordinate, and no lessor
under a so- called sale - leaseback, shall be responsible in connection with any
security deposited hereunder, unless such mortgagee or holder of such deed of
trust or lessor shall have actually received the security deposited hereunder.
11.2 Attornment. In the event of the conveyance of the Premises by
foreclosure or deed in lieu of foreclosure, or in the event Landlord sells,
conveys, assigns or otherwise transfers its interest in this Lease and the
Premises, Tenant hereby agrees to attorn to, and covenants and agrees to execute
an instrument in writing reasonably satisfactory to the new owner whereby Tenant
attorns to such successor in interest and recognizes such successor as the
Landlord under this Lease.
11.3 Subordination. Tenant agrees that this Lease shall, at the request
of Landlord, be subordinate to any mortgages or deeds of trust that may hereafter
be placed by Landlord upon the Premises and to any and all advances to be made
thereunder, and to the interest thereon, and all renewals, replacements and
extensions thereof; provided, that the mortgagees or beneficiaries named in said
mortgages or trust deeds shall agree to recognize the interest of Tenant and any
applicable Lender under this Lease in the event of foreclosure, if Tenant is not
then in default. Tenant also agrees that any mortgagee or beneficiary may elect
to have this Lease constitute a prior lien to its mortgage or deed of trust, and
in the event of such election and upon notification by such mortgagee or
beneficiary to Tenant to this effect, this Lease shall be deemed prior in lien
to such mortgage or deed of trust, whether this Lease is dated prior to or
subsequent to the date of said mortgage or deed of trust. Tenant agrees that
upon the request of Landlord, or any mortgagee or beneficiary, Tenant shall
execute whatever instruments may be required to carry out the intent of this
Paragraph.
ARTICLE 12
HOLDING OVER
This Lease shall terminate and become null and void without further notice
upon the expiration of the term herein specified, and any holding over by Tenant
after such expiration shall not constitute a renewal hereof or give Tenant any
rights hereunder or in or to the Premises, except as otherwise herein provided,
it being understood and agreed that this Lease cannot be renewed, extended or in
any manner modified except by a writing signed by both parties hereto. If Tenant
shall hold over for any period after the expiration of said term, Landlord may,
at its option, exercised by written notice to Tenant, treat Tenant as a tenant
from month -to -month commencing on the first day following the expiration of this
Lease and subject to the terms and conditions herein contained except that the
minimum rent, which shall be payable in advance, shall be equal to a fair market
10
Ground Lana
Exhibit 1
General Conditions
March 11, 1992
value rental assuming that the improvements on the Premises are owned by Landlord
and occupied by Tenant for use as commercial office space. If Tenant fails to
surrender said .Premises upon expiration of this Lease despite demand to do so by
Landlord, Tenant shall indemnify and hold Landlord harmless from all loss or
liability, including without limitation any claims made by any succeeding lessee,
founded on or resulting from such failure to surrender, and Landlord shall be
entitled to the benefit of all provisions of law respecting summary recovery of
possession to the same extent as if such statutory or other notice had been
given.
ARTICLE 13
GOVERNMENTAL TAKING
13.1 Definition of Terms. The term "Total Taking" as used in this Article
means the taking of the entire Premises under the power of eminent domain or a
taking by governmental requirements for dedication or otherwise, of so much of
said Premises as to prevent or substantially impair the conduct of Tenant's
operations thereon. The term "Partial Taking" means the taking of a portion only
of said Premises which does not constitute a Total Taking as below defined.
13.2 Total Taking. If during the term hereof there shall be a Total
Taking by public authority, then the leasehold estate of Tenant in and to the
Premises shall be taken.
13.3 Partial Taking. If during said term there shall be a Partial Taking
of the Premises, this Lease shall terminate as to the portion of said Premises
taken upon the date upon which actual possession is taken, but said Lease shall
continue in force and effect as to the remainder of said Premises, and Tenant
shall promptly restore, repair or reconstruct any improvements on the Premises
only a portion of which were so taken so that when so restored, repaired or
reconstructed such improvements shall be-substantially the same quality and
character as existed immediately prior to such taking.
13.4 Allocation of Award. All compensation and damages awarded for the
taking of the Premises or any portion thereof or any interest therein shall,
except as otherwise herein provided, belong to and be the sole property of
Landlord, and Tenant shall not have any claim or be entitled to any award for
diminution in value of its leasehold hereunder or for the value of any unexpired
term of this Lease; provided, however, that Tenant shall be entitled to any award
that may be made for and specifically allocated to the taking of or injury to any
improvements installed or constructed on the Premises at the expense of Tenant,
or on account of any cost or loss Tenant may sustain in the removal of Tenant's
fixtures, equipment and furnishings, or as a result of any alterations,
modifications or repairs which may be required by Tenant in order to place the
remaining portion of the Premises not so condemned in a suitable condition for
the continuance of Tenant's tenancy.
13.5 Effect of Termination. If this Lease is terminated, in whole or in
part, pursuant to any of the provisions of this Article, all rentals and other
charges payable by Tenant to Landlord hereunder and attributable to the Premises
or portion thereof so taken, shall be paid up to the date upon which actual
physical possession shall be taken by the condemnor, and the parties shall
thereupon be released from all further liability in relation thereto.
13.6 Voluntary Conveyance. A voluntary conveyance by Landlord to a public
utility, agency or authority under threat of a taking under the power of eminent
domain in lieu of formal proceedings or pursuant to the imposition of
governmental requirements for dedication or otherwise shall be deemed a taking
within the meaning of this Article 13.
ARTICLE 14
MINERAL LAND WATER RIGHTS RESERVATIONS
Landlord reserves and excepts from all property leased hereunder unto
itself, its successors and assigns, together with the exclusive right to grant
and transfer all or a portion of the same:
11
Ground Lease
Exhibit I
General Conditions
March 11, 2992
(a) Any and all oil,- oil rights, petroleum, minerals, mineral
rights, natural gas rights, and other hydrocarbon substances by whatsoever name
known, geothermal resources (as defined in California Public Resources Code,
Paragraph 6903), and all products derived from any of the foregoing, that may be
within or under the land, together with the perpetual right of drilling, mining,
exploring, prospecting and operating therefor and storing in and removing the
same from the Premises or any other land, including the right to whipstock or
directionally drill and mine from lands other than those conveyed hereby, oil or
gas wells, tunnels and shafts under and beneath or beyond the exterior limits
thereof, and to redrill, retunnel, equip, maintain, repair, deepen and operate
any such wells or mines; without, however, the right to enter, drill, mine,
store, explore and operate on or through the surface or the upper five hundred
(500) feet of the subsurface of the Premises.
(b) Any and all water, rights or interests therein, no matter how
acquired by Landlord and owned or used by Landlord in connection with or with
respect to the Premises, together with the right and power to explore, drill,
redrill, remove and store the same from the Premises or to divert or otherwise
utilize such water, rights or interests on any other property owned or leased by
Landlord, whether such water rights shall be riparian, overlying, appropriative,
percolating, littoral, prescriptive, adjudicated, statutory or contractual; but
without, however, any right to enter upon the surface of the Premises in the
exercise of such rights.
ARTICLE 15
SAFETY AND HEALTH
Tenant shall comply with all laws and regulations promulgated by all
relevant governmental authorities, including but not limited to the requirements
of the Occupational Safety and Health Act of 1970, 29 U.S.C. Paragraph 661 et
seq. and any analogous legislation in California (collectively, "OSHA ") to the
extent that OSHA applies to the Premises and any activities thereon. Without
limiting the generality of the foregoing, Tenant shall maintain all working
areas, all machinery, structures, electrical facilities and the like upon the
Premises in a condition that fully complies with the requirements of OSHA,
including such requirements as would be applicable with respect to agents,
employees or contractors of Landlord who may from time to time be present upon
the Premises. Tenant shall indemnify and hold harmless Landlord from any
liability, claims or damages arising as a result of a breach of the covenants of
this Article and from all costs, expenses and charges arising therefrom
including, without limitation, attorneys' fees and court costs incurred by Tenant
in connection therewith, which indemnity shall survive the expiration or
termination of this Lease.
ARTICLE 16
STATEMENT OF TENANT
16.1 Contents and Effect. Tenant shall, at any time and from time to
time, upon not less than ten (10) days' prior written notice by Landlord,
execute, acknowledge and deliver to landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if there has been
any modification thereof, that the same is in full force and effect as modified
and stating the modification or modifications) and that Landlord is not in
default, except as specified in such statement, in regard to any of its covenants
or obligations under this Lease and further setting forth.the dates to which all
sums payable as rental hereunder have been paid in advance, if any, and such
other statements relating to delivery and acceptance of the Premises as
Landlord's lender, lienor, encumbrancer or purchaser may require. Tenant
represents and warranties that any such statement delivered pursuant to this
Article will be accurate and binding upon Tenant and may be relied upon by any
such person. Tenant shall be taken to have waived any defaults by Landlord
occurring before the date of such statement and not set forth therein.
16.2 Effect of Tenant's Failure. Tenant's failure to execute and deliver
such statement within such time shall be conclusive evidence.(i) that this Lease
is in full force and effect, without modification except as may be represented
Ground Lease
Exhibit 1
General Conditions
12 March 11, 1992
by Landlord, (ii) that there are no uncured defaults in Landlord's performance,
and (iii) that not more than one installment of minimum rent has been paid in
advance; provided, however, that at Landlord's option.Tenant's failure to execute
and deliver any statements or instruments necessary or desireable to effectuate
the foregoing provisions of this Article or within ten (10) days after written
request so to do by Landlord, shall constitute a breach of this Lease. In the
event of such failure, Landlord, in addition to any other rights or remedies it
might have, shall have the right by not less than ten (10) days' notice to Tenant
to declare this Lease terminated and the term ended, in which event its Lease
shall cease and terminate on the date specified in such notice; upon such
termination Tenant shall vacate and surrender the Premises, but shall remain
liable as provided in this Lease by reason of said breach.
ARTICLE 17
ARBITRATION
If arbitration of any other matter is required as a result of disputes
arising out of this Lease, then it shall be conducted in Orange County,
California in accordance with the rules and procedures of the American
Arbitration Association then in effect.
ARTICLE 18
MISCELLANEOUS PROVISIONS
18.1 Notices. Any notice, election, demand or other communication to be
given by either party to the other hereunder may be delivered in person to an
authorized representative of the other party, or may be deposited in the United
States mail, duly registered or certified, with postage prepaid, return receipt
requested, and addressed to the party for whom intended as follows: To Landlord
at address set forth in Item XI of the Basic Lease Provisions, and to Tenant at
the Premises or at such other address set forth in Items XI of the Basic Lease
Provisions. Either of the parties hereto may hereafter respectively designate
another address as provided above. Service of any such written notice shall be
deemed complete at the time of such personal delivery or within two (2) days
after the mailing thereof as hereinabove provided. If more than one (1) lessee
is named under this Lease, service of any notice upon any one (1) of said lessees
as herein provided shall be deemed as service upon all of said lessees.
18.2 Prorations. All annual payments required to be made under the terms
of this Lease which require proration shall be prorated on the basis of one
twelfth (1 /12th) of the amount for each full month and one -three hundred sixtieth
(1 /360th) of the amount for each day to be prorated.
18.3 Interest on Late Payments. Any installment of rent accruing under
the provisions of this Lease or any other payment which shall not be paid when
due,. shall bear simple interest at the rate of five percent (58) per annum plus
the discount rate established by the Federal Reserve Bank of San Francisco as of
the twenty -fifth (25th) day of the month immediately preceding each such payment
due date, but in no event in excess of the highest rate then allowed under the
usury laws of the State of California, accruing from and after the due date
thereof until paid.
18.4 Accord and Satisfaction. No payment by Tenant or receipt by Landlord
of a lesser amount than the rent and other payments herein stipulated shall be
deemed to be other than on account of the earliest due stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction and Landlord shall accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy provided in this Lease.
18.5 Waiver.. One or more waivers of any.covenant or condition by Landlord
shall not be construed as a waiver of a subsequent breach of the same covenant
or condition, and the consent or approval shall not be deemed to render
unnecessary Landlord's consent or approval to or any subsequent similar act by
Tenant. No breach by Tenant of a covenant or condition of this Lease shall be
.deemed to -have been waived by Landlord unless such waiver is in a writing signed
Ground Lease
Exhibit I
General Condition.
13 March 11, 1992
by Landlord. The rights and remedies of Landlord under this Lease shall be
cumulative and in addition to any and all other rights and remedies which
Landlord has or may have.
18.6 Surrender or Cancellation. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, but
shall terminate all or any existing subleases unless Landlord expressly elects
to treat such surrender or cancellation as an assignment to Landlord of any or
all of such subleases.
18.7 Survival of Indemnities. The obligations of the indemnifying party
under each and every indemnification and hold harmless provision contained in
this Lease shall survive the expiration or earlier termination of this Lease to
and until the last to occur of (a) the last date permitted by law for the
bringing of any claim or action with respect to which indemnification may be
claimed by the indemnified party under such provision or (b) the date on which
any claim or action for which indemnification may be claimed under such provision
is fully and finally resolved and, if applicable, any compromise thereof or
judgment or award thereon is paid in full by the indemnifying party and the
indemnified party is reimbursed by the indemnifying party for any amounts paid
by the indemnified party in compromise thereof or upon a judgment or award
thereon and in defense of such action or claim, including reasonable attorneys'
fees.
18.8 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. Tenant shall, at Landlord's request, deliver a certified copy
of its Board of Directors' resolution authorizing such execution.
18.9 Entire Agreement. This Lease and the exhibits hereto cover in full
each and every agreement of every kind or nature whatsoever between the parties
hereto concerning the Premises, and-all preliminary negotiations and agreements
of whatsoever kind with respect to the Premises, except those contained herein,
are superseded and of no further force or effect. No person, firm or corporation
has at any time had any authority from Landlord to make any representations or
promises on behalf of Landlord, and Tenant expressly agrees that if any such
representations or promises have been made by Landlord or others, Tenant hereby
waives all right to rely thereon, No verbal agreement or implied covenant shall
be held to vary the provisions hereof, notwithstanding any statute, law, or
custom to the contrary.
18.10 Amendment of Lease. No amendment or other ratification of this Lease
shall be effective unless in writing signed by both Landlord and Tenant.
18.11 Certain Rules of Construction. Time is of the essence of this Lease.
Notwithstanding the fact that certain references elsewhere in this Lease to acts
required to be performed by Tenant hereunder omit to state that such acts shall
be performed at Tenant's sole cost and expense, unless the text clearly states
the contrary, each and every act to be performed or obligation to be fulfilled
by Tenant pursuant to this Lease shall be performed or fulfilled at Tenant's sole
cost and expense. The captions, section numbers, article numbers, and index
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe, or describe the scope or intent of such sections or
articles of this Lease nor in any way affect this Lease. Each and all of the
obligations, covenants, conditions and restrictions of this Lease shall inure to
the benefit of and be binding upon and enforceable against, as the case may
require, the successors and assigns of Landlord, and, subject to the restrictions
of Article 9 above entitled "Assignments and Sublettings," any authorized
assignee, transferee, sublessee and other successors in interest of Tenant. In
this Lease each of the neuter, feminine or masculine gender(s) includes the other
or others, and the singular number includes the plural, wherever the context so
requires. If more than one lessee is named above, the obligation of each of such
lessees hereunder shall be and is joint and several.
18.12 Specific Performance. Nothing contained in this Lease shall be
construed as or shall have the effect of abridging the right of either party to
Ground Lease
Exhibit 1
General Conditions
14 March 11, 1992
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E
EXHIBIT 1
To Declaration of Special Restrictions
Legal Description of "Benefited Property"
(To Be Inserted)
E
WiBIT 2
To Declaration of Special Restrictions
Requirements for Special Facilities
v
0 0
REQUIREMENTS FOR SPECIFIC FACILITIES
Description of Specific Facilities:
Shelters and structures for a bus terminal, bus and auto parking lots
and bays and related driveways, accessways and landscaping.
Permitted Use:
Public Library and related parking of private passenger automobiles
during the hours from _ a.m. to P.M. daily.
Maximum No. of Buildings:
Minimum Gross Floor Area: square feet*
Maximum Gross Floor Area: square feet*
Maximum Floor Area Ratio: percent
Commencement Date: 12 months from Effective Date
Completion Date: 36 months from Effective Date
z
* By setting forth any required minimum or maximum gross foot area above,
Declarant does not thereby represent or warrant that Buyer shall be able to
develop the Land for such density.
REQUIREMENTS FOR OTHER IMPROVEMENTS
Those improvements required by Exhibit I to the Exchange Agreement.
ADONRE4.2M1050190
Special Reateietioaa
Exhibit 2
Specific Facilities
may 1, 1990
0 0
EXHIBIT 3
To Declaration of Special Restrictions
Subordination Agreement
0 0
When Recorded Mail To:
THE IRVINE COMPANY
550 Newport Center Drive
Newport Beach, CA 92660'
Attention:
Space above this line for Recorder's use A.P. No.
SUBORDINATION AGREEMENT
NOTICE; THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS AND INTERESTS AND
YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
I. PARTIES AND DATE.
This Subordination Agreement ( "Agreement ") is made this day of
19 by the CITY OF NEWPORT BEACH, a California municipal
corporation ( "Owner "), owner of the "Land" (as defined below), and THE IRVINE
COMPANY, a Michigan corporation ( "TIC "), declarant under the Declaration (defined
below).
II. ACKNOWLEDGMENTS
Owner has executed a Declaration of Special Land Use Restrictions, Right
of First Refusal, Mortgage Lien and Option to Repurchase (the "Declaration ")
dated , 19_, and recorded on as Instrument No.
in the Official Records of Orange County California as an encumbrance on the
title of the real property described as:
Parcel in the City of Newport Beach, County of Orange, State
of California, as shown on a parcel map filed in Book _, Pages_
to inclusive, of Parcel Maps, in the office of the County
Recorder of Orange County (the "Land ").
Owner has executed, or is about to execute, certain loan documents ( "Loan
Documents") dated 19_ with or in favor of
( "Lender") to obtain
and evidence a loan (the "Loan ") from Lender in the amount of $
The Loan Documents have all been delivered to TIC .and include, without
limitation, a Deed of Trust (the "Deed of Trust ") to be recorded concurrently
with this Agreement as security for the obligations evidenced by the Loan
Documents. Lender is incurring its obligations in connection with the Loan in
good faith and for value pursuant to an agreement with Owner, on which TIC is
relying and which is memorialized in the Loan Documents, that the proceeds of
the Loan will be expended solely for financing or refinancing of construction
of certain improvements on the Land, the plans and specifications for which have
been, or will, prior to the commencement of construction, be approved by TIC,
all in accordance with the provisions of the Loan Documents, and for no other
purpose unless approved by TIC in writing in its sole discretion.
A condition precedent to Lender's agreement to make the Loan is that the
Deed of Trust shall be and remain at all times a lien or charge upon the Land
prior and superior to certain enforcement 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 to TIC and Owner resulting from the Loan and for other valuable
Special Restrietions
-- Exhibit 9
Subordination Agreement
1 May 1, 1990
0 •
consideration, the receipt and sufficiency of which is acknowledged by TIC and
Owner.
III. SUBORDINATION.
`— A. Superiority of the Deed of Trust.
The Deed of Trust and any renewals or extensions thereof shall be and
remain at all times a lien or charge on the Land prior and superior to
Declarant's right of first refusal contained in Article 4 of the Declaration,
the mortgage lien contained in Section 5.1(d) 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, deed in lieu of foreclosure
or otherwise as provided in Section 5.7 of the Declaration, and (2) any
subsequent owner shall have the cure rights as provided in Section 5.7.
Notwithstanding anything to the contrary contained in this Agreement, Lender's
foreclosure or similar or related proceeding under the Deed of Trust shall not
extinguish the Declaration or TIC's Enforcement Rights, all of which shall
survive such proceeding and shall be binding upon any subsequent owner acquiring
title from Lender as stated above.
B. Owner's Consent.
j Owner agrees that TIC shall be entitled to advance any sums TIC in its
sole discretion deems necessary to protect and preserve the security for its
rights and interest under the Declaration (including but not limited to any
property taxes or assessments, insurance premiums, amounts secured by Lender's
Deed of Trust, or encumbrances or liens or other charges on any portion of the
Land which appear to be prior to TIC's rights and interest under the
Declaration), all of which advances (together with interest at the maximum rate
permitted by law) shall be secured by the mortgage lien contained in Section
5.1(d) of the Declaration, and shall be subject to the power of sale provisions
in the Declaration if Owner fails to reimburse TIC for such advances (plus
interest thereon at the maximum rate then permitted by law) shall reduce the
amount of any repurchase price to be paid TIC under the terms of the option to
repurchase contained in the Declaration.
IV. MISCELLANEOUS
A. Entire Agreement.
This Agreement shall be the whole and only agreement between TIC and Owner
with regard to the subordination of TIC's Enforcement Rights and remedies under
the Declaration to the lien or charge of the Deed of Trust.
spacial Raatticcic"
Sahihit 4
subardl,atien A;raamant
2 May 1, 1990
0 0
B. Attorneys' Fees.
The prevailing party in any litigation respecting this Agreement shall be
entitled to reimbursement; of attorney's fees and costs, whether or not taxable,
incurred in the litigation.
"TIC" "OWNER"
THE IRVINE COMPANY, CITY OF NEWPORT BEACH
a Michigan corporation
By: By:
Its
By: _
Its
ADONSON .2K /050190
3
Its: Mayor
ATTEST:
By:_
Its:
APPROVED AS TO FORM:
By :_
Its
City Attorney
Special Restrlcticu
SxhlbLt 7
Subardi"tim Aoraaant
may 1, 1990
•
STATE OF CALIFORNIA j
).as
COUNTY OF J.
On 19_, before me, the undersigned, a Notary Public in
and for said State, personally appeared
and personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons who executed the within
instrument as and on behalf of
THE IRVINE COMPANY, a Michigan corporation, and acknowledged to me that said
corporation executed it.
WITNESS my hand and official seal..
Notary Public in and for said State
STATE OF CALIFORNIA )
f.ss
�- COUNTY OF )
On , 19_, before me, the undersigned, a Notary Public in
and for said State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as Mayor, on behalf of City
of Newport Beach, which executed the within instrument pursuant to governing law
and a resolution of its board of directors and acknowledged to me that the City
of Newport Beach executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
�_� 6p�e L�1 R�etrlec le�u
' Br4�lplt S
ADWSUB.2N1050190 4 Su6osdlnaci N�y1•199D
EXHIBIT E
To Transfer Agreement
Entry Permit
11
ENTRY PERMIT
(Not valid unless signed by both parties)
THIS ENTRY PERMIT is made as of 19_, by and between
(hereinafter "Licensor "), and the
(hereinafter
"Licensee ").
R E C I T A L S
A. Licensor and Licensee intend to execute or have executed an
Exchange Agreement (the "Agreement ") concerning certain real property owned by
Licensor in the County of Orange, State of California, more particularly
described in EXHIBIT A attached hereto and by this reference incorporated herein
(the "Land ").
B. Licensee desires to come on the Land prior to its acquisition
thereof for the purpose of inspecting the same, conducting soils engineering
and other tests, surveys, and such other purposes as Licensor may expressly
authorize in writing from time to time.
NOW, THEREFORE, the parties hereto agree as follows:
1. License to Enter Land. Licensor hereby grants to Licensee a
nonexclusive license and permission to enter upon the Land for the purposes set
forth above and for no other purpose, subject to Licensee's strict compliance
with all the terms of this ENTRY PERMIT; provided, that Licensee's uses of.the
Land permitted hereunder shall not interfere with the reasonable use and
enjoyment thereof by Licensor or any lessees, occupants or persons claiming
through or under Licensor. Licensee shall not permit any other party, except
Licensee's duly authorized employees, agents and independent contractors
(collectively "Representatives "), to enter or use the Land during the term of
this Entry Permit without.Licensor's prior written consent.
2. Government Regulations and Other Obligations of Licensee. Licensee
shall obtain at its sole cost and expense all governmental permits and
authorizations of whatever nature required by any and all applicable governmental
agencies for Licensee's use of the Land. If requested, Licensee will furnish
Licensor evidence of such permits and authorizations. While on the Land,
Licensee will comply and will cause all Representatives on the Land to comply
with all applicable governmental laws and regulations. All persons who enter
upon the Land pursuant to this Entry Permit do so at their own risk, and shall
comply with any and all instructions and directions of Licensor. Licensee shall
cause such persons to observe strict fire and smoking precautions, and shall
ensure that no fires are lighted on the Land and that no firearms or intoxicating
liquor shall be carried onto the Land by any persons entering thereon pursuant
hereto.
3. Special Note. Licensor shall have no duty to inspect the Land to
which this Entry Permit applies and shall have no duty to warn any person of
any latent or patent defect, condition or risk that may exist in the Land or
that might be incurred in the exercise of the rights granted herein.
4. Maintenance and Condition of Land. During the term of this Entry
Permit, Licensee will be responsible for any damage done to the Land during such
term by Licensee or its Representatives and, upon departing from or being
required to vacate the Land, will pay the costs of repairing and restoring the
Land and every portion thereof to at least as good condition as existed prior
to Licensee's entry onto the Land. Licensee agrees to pay all utility charges,
if any, allocable to its use of the Land.
5. No Construction or Signs without. Permission. No structure, signs or
other improvements of any kind shall be constructed and no grading or moving of
earth (other than customary soils or subsoils, drainage or other engineering
tests) shall be undertaken on the Land by Licensee or its Representatives without
the express prior permission of Licensor in each case, which approval may be
withheld in Licensoe's sole discretion, and then only pursuant to plans and
1
Transfer AErea ftt
Exhibit E
Eacry Parmit
May 1, 1990
specifications and the proposed location thereof which are specifically approved
by Licensor in each case. No approval by Licensor of any plans or specifications
shall be deemed to constitute an approval of architectural or engineering design
or to be a representation or warranty by Licensor as to the adequacy or
sufficiency of such plans and specifications or the improvements or grading
contemplated thereby for'any use or purpose; but such approval shall merely be
the consent of Licensor as required hereunder in connection with Licensee's
performance of said construction and /or grading operation. Licensor by approving
such plans and specifications assumes no responsibility or liability for any
defect in any improvements constructed or grading done on the basis of such plans
and specifications. At Licensor's option, all such improvements made by Licensee
shall either become the sole property of Licensor upon expiration or termination
of this Entry Permit, without the payment of any consideration to Licensee, or
shall be removed by Licensee at its sole cost and expense, and the Land shall
be fully restored to its original condition. Upon completion of any approved
grading, excavation or any test . boring site, any exposed openings shall be
backfilled, and compacted, any improvements or landscaping which has been damaged
by Licensee or its Representatives shall be fully restored to its original
condition, and any disturbed ground shall be leveled to its prior condition.
Licensee shall cause all of its activities hereunder to be performed in a safe
manner and shall not cause to exist any dangerous or unsightly condition.
6. Liens. Licensee shall not suffer or permit to be enforced against
the Land, or any part thereof, any mechanics', materialman's, contractors' or
subcontractor's liens or any claim for damage arising from the work of any
construction, excavation, survey, tests, grading, repair, restoration,
replacement or improvement, or any other work, performed by Licensee or its
Representatives, but Licensee shall pay or cause to be paid all of said liens,
claims or demands before any action is brought to enforce the same against the
Land. Licensee expressly agrees to indemnify, defend and hold harmless Licensor
and the Land free from all liability for any and all such liens, claims and
demands together with reasonable attorneys' fees and all costs and expenses in
connection therewith. Notwithstanding anything to the contrary set forth above;
if Licensee shall in good faith contest the validity of any such lien, claim or
demand, then Licensee shall, at its expense, defend itself and Licensor against
the same and shall pay and satisfy any adverse judgment that may be rendered
thereon before any enforcement thereof against Licensor or the Land, but only
upon the condition that if Licensor shall so require, Licensee shall procure and
record or furnish to Licensor a surety bond or other such acceptable security
satisfactory to Licensor in an amount at least equal to such contested lien claim
or demand indemnifying Licensor against liability for the same, and holding the
Land free from the effect of any such lien or claim. Licensor reserves the right
at any time and from time to time to post and maintain on said Land, or any
portion thereof or improvement thereon, such notices of nonresponsibility or
otherwise as may be necessary to protect Licensor against liability for all such
liens and claims.
7. Notices of Nonresponsibility. Upon request of Licensor at any time
and from time to time, Licensee shall at Licensee's sole expense post on the
Land and record in the Office of the Recorder, Orange County, California, a
notice or notices of nonresponsibility in the form provided and executed by
Licensor. Said posting and recordation of a notice shall occur no later than
three (3) days after Licensee's receipt of such notice from Licensor. Licensee
hereby agrees to indemnify, defend and hold harmless Licensor and the Land from
any liability, claim, damage, loss, cost or expense, including without limitation
reasonable attorneys' fees, arising from or related to a failure of Licensee to
properly post and record each such notice in accordance with the provisions of
this Paragraph 7 and all applicable laws and regulations.
8. Licensor Not Liable. Licensee shall indemnify, defend and hold
Licensor and its employees, officers, shareholders, directors, agents,
representatives, divisions, subsidiaries, partners and affiliated companies and
its and their respective successors and assigns (collectively, the "Indemnitees ")
harmless from and against any loss, damage, injury, accident, fire or other
casualty, liability, claim, cost or expense (including but not limited to,
reasonable attorneys' fees) of any kind or character to any person or I property,
including the property of the Indemnitees, (collectively, the "Claims") arising
from or relating to (a) any use of the Land by Licensee or its Representatives,
2
7ransfar ARraztent
Exhibit E
Entry permit
May 1, 1990
(c) any bodily injury, property damage, accident, fire or other casualty to or
involving Licensee or its Representatives and its or their property on the Land,
(d) any violation or alleged violation by Licensee or its Representatives of any
law or regulation now or hereafter enacted, (e) the failure of Licensee to
maintain the Land in a safe condition, (f) any loss or theft whatsoever of any
property or anything placed or stored by Licensee or its Representatives on or
about the Land
(g) any breach by Licensee of its obligations under this Entry
Permit, and (h) any enforcement of Licensor of any provision of this Entry Permit
and any cost of removing Licensee from the Land or restoring the same as provided
herein; provided, however, that the foregoing indemnity shall not apply to the
extent any such Claim is ultimately established by a court of competent
jurisdiction to have been caused solely by the gross negligence or wilful
misconduct of the Indemnitees. Licensee, as a material part of the consideration
of this Entry Permit, waives all claims or demands against Licensor and the other
Indemnitees for any such loss, damage or injury of Licensee or Licensee's
property. The indemnity provided by Licensee in favor of the Indemnitees in
this Entry Permit shall not require payment as a condition precedent.
9. Licensor Payment of Claims. In addition to and not in limitation of
Licensor's other rights and remedies under this Entry Permit, should Licensee
fail within ten (10) days of a written request from Licensor either (a) to pay
and discharge any lien or claim arising out of Licensee's use of the Land or to
have bonded around such liens or claims as provided above in Paragraph 6 or (b)
to indemnify and defend the Indemnitees from and against any Claim as provided
above in Paragraph 8, then in any such case Licensor may, at its option, pay any
such lien or Claim or settle or discharge any action therefor or satisfy any
judgment thereon, and all costs, expenses and other sums incurred by Licensor
�- in connection therewith (including but not limited to reasonable attorneys' fees)
shall be paid to Licensor by Licensee upon written demand, together with interest
thereon at the maximum contract rate permitted by law from the date incurred or
paid until repaid, and any default either in such initial failure to pay or
subsequent repayment to Licensor shall at Licensor's option constitute a breach
under this Entry Permit.
10. Insurance.
(a) Liability Coverage. Prior to and at all times after initially
entering upon the Land for any purpose, Licensee shall at its sole expense
maintain with a reputable company or companies acceptable to Licensor, (i) a
policy or policies of comprehensive general liability insurance with respect to
the Land and the operations of or on behalf of Licensee on or about the Land,
including but not limited to owned and nonowned automobile (vehicle) liability,
personal injury (including coverage for Groups of Offenses A, 8 and C with
exclusion (c) deleted, blanket contractual, broad form property damage and
product /completed operations liability coverage for not less than Five Million
Dollars ($5,000,000) combined single limit bodily injury, death and property
damage liability per occurrence, or the current limit of liability carried,
whichever is greater, and (ii) workers compensation insurance in an amount
�. required by law, together with employees liability, with a Waiver of Subrogation
by the insurance carrier as respects Licensor.
(b) Licensor Named. Licensee shall provide that the policy of
insurance required about shall be primary and shall name Licensor as additional
insured (as indicated below) and shall apply severally to Licensor and Licensee,
with the provision that any other insurance carried by Licensor shall be
noncontributing. Such policy shall contain a provision that the naming of an
additional insured shall not negate any right the additional insured would have
had as claimant under the policy if not so named. For purposes of naming
Licensor as additional insured, the following provisions shall be included within
each applicable policy: "It is understood and agreed that coverage afforded by
this Policy shall also apply to [Licensor], and its officers, directors, agents,
employees, divisions, subsidiaries, partners and affiliated companies as
additional insureds, but only with respect to legal liability or claims caused
by, arising out of or resulting from the acts or omissions of the named insured
or of others performing acts on behalf of the named insured or the ownership or
development of the project referred to as the Orange County Transit District
transit terminal.
Transfer Asreemant
Exhibit E
Entry Permit
3 May 1, 1940
0 s
(c) Form and Procedures. Any policies or certificates of insurance
required under the provisions of this Section must contain an endorsement or
provision that not less than thirty (30) days' prior written notice be given to
Licensor prior to cancellation or reduction of coverage or amount of such policy.
A certificate issued by, the insurance carrier of each policy of insurance
—' required to be maintained by Licensee, stating the limits and other provisions
required hereunder and in a form reasonably acceptable to Licensor, shall be
delivered to Licensor prior to Licensee entering upon the Land for any purpose,
and thereafter not later than thirty (30) days prior to the .expiration of the
term of each such policy. Any policies required hereunder may be made a part
of a blanket policy of insurance, so long as such blanket policy contains all
of the provisions required herein and does not in any way reduce the coverage,
impair the rights of Licensor hereunder or negate the requirements of Entry
Permit. Notwithstanding the foregoing, Licensee may provide to Licensor a letter
or other evidence of self insurance program which is reasonably satisfactory to
Licensor as providing substantially the same protection to Licensor as would be
provided by policies of insurance maintained in accordance with this Entry
Permit.
11. Termination and Remedies. Unless otherwise specifically agreed to
by Licensor and Licensee, the right of entry granted by this Entry Permit shall
terminate 180 days following the date hereof; provided that Licensor may effect
an earlier termination of this Entry Permit if and when Licensor determines that
Licensee shall not consummate, for whatever reason, its acquisition of the Land.
In addition, if Licensee shall be in breach of any of its obligations under this
Entry Permit, Licensor shall have the right to terminate this Entry Permit
immediately by written notice to Licensee. Licensee acknowledges that this is
solely an Entry Permit in the nature of a license and that Licensee has no rights
as an owner, purchaser or tenant by virtue hereof. Upon termination of this
Entry Permit, Licensee shall promptly vacate the Land and Licensor may reenter
and take exclusive possession of the Land and remove all persons or things
therefrom, without legal process to the maximum extent permitted by law, or by
such legal process as Licensor may deem appropriate. In the event of termination
hereof due to a breach or threatened breach by Licensee of any provision
hereunder, Licensor may seek any remedy available at law or in equity, including
but not limited to a suit for damages for any compensable breach or noncompliance
herewith or an action for specific performance or injunction. All remedies
provided herein or by law or equity shall be cumulative and not exclusive. No
termination or expiration of this Entry Permit shall relieve Licensee of its
obligations to perform those acts required to be performed either prior to or
after its termination.
12. Licensor Inspection. Licensor and any authorized representative,
employee, agent or independent contractor, shall be entitled to enter and inspect
the Land or any portion thereof or improvements or work of Licensee thereon at
any time and from time to time.
13. Assignability. This Entry Permit may not be assigned, whether
voluntarily or by operation of law, and Licensee shall not permit the use of
the Land, or any part thereof, except in strict compliance with the provisions
hereof, and any attempt to do so shall be null and void.
14. Costs of Enforcement. In the event it is necessary for Licensor to
employ an attorney or other person or commence an action to enforce any of the
provisions of this Entry Permit or to remove Licensee from the Land, Licensee
agrees to pay all costs of enforcement in connection therewith, including but
not limited to court costs and attorneys' fees.
15. Notices. All notices, consents, approvals, requests, demands and
other communications provided for herein shall be in writing and shall be deemed
4
Transfer Agram nt
EshLELt 8
Entry Permit
May 1, 1990
u
0 0
to have been duly given if and when personally served or forty -eight (48) hours
after being sent by United States registered or certified mail, return receipt
requested, postage prepaid to the intended party as follows:
"LICENSOR"
"LICENSEE"
16. Miscellaneous. This instrument constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and all prior
and contemporaneous agreements, representations and understandings of the parties
hereto, oral or written, are hereby superseded and merged herein. No supplement,
modification or amendment of this Entry Permit shall be binding unless in writing
and executed by the parties hereto. No waiver of any of the provisions of this
Entry Permit shall be deemed or shall constitute a waiver of any other
provisions, whether or not similar, nor shall any waiver be a continuing waiver.
No waiver shall be binding unless executed in writing by the party making the
waiver. This Entry Permit shall be construed and enforced in accordance with,
and governed by, the laws of the State of California. The headings of this Entry
Permit are for purposes of reference only and shall not limit or define the
meaning of the provisions hereof. This Entry Permit may be executed in any
number of counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument. Neither this Entry Permit nor a short
form memorandum or assignment hereof shall be filed or recorded in any public
office and any attorneys' fees or other costs incurred in clearing such cloud
on title to the Land shall be Licensee's responsibility.
IN WITNESS WHEREOF, the parties hereto have executed this Entry Permit as
of the date first above written
LICENSOR: LICENSEE:
By:
By:
Its: Its:
Its:
ADmiBP.2M
By:
Its:
Tr+ fer A{ro�nt
SrhtbLt 8
Sntr) P*=Lt
S Vf y 1, 1990
EXHIBIT P
To Transfer Agreement
Design Criteria
\11
11
DESIGN CRITERIA AND REVIEW PROCESS
NEWPORT CENTER LIBRARY
April 17, 1989
IN MODUMON
0
Newport Center is a development which represents a commitment by The Irvine Company and
City of Newport Beach of over 20 years to quality planning and design. Recognizing the
inevitable variation in architectural expression that results from a development built over a period of
time and influenced by many architects and builders, there is a consistent thread of relatively simple
and direct architecture and massing that characterizes Newport Center. A strong landscape scheme
with generous building setbacks further unifies the entire complex. In order to meet these major
objectives the following design criteria, review and submittal guidelines are to be considered:
A. SITE ORGANIZATION
Generous setbacks and landscaping are to be utilized to achieve a comfortable
building -to -site relationship.
2. A clear sequence of arrival and access for both vehicles and pedestrians is
important.
Mitigation of large parking areas through the use of generous landscaping, grade
changes and walls. Clear and direct vehicle circulation patterns are to be apparent.
4. The Library's site organization is to be coordinated with the development plans and
circulation patterns of the adjacent Newport Harbor Art Museum and Corporate
Plaza Phase II Office Development.
B. ARCHITECTURAL DESIGN
1. Building massing and/or garden walls should have a calm dignified presence in the
Center and community.
2. Unusual or radical building forms are considered to be inappropriate.
3. Color must not be used as a major attention - seeking architectural element. In
general, exterior colors should be light in tone.
4. The project's impact to views from the adjacent residential community is of
importance. The City's view plane ordinance restricts both building and landscape
elements.
5. Trendy or period architectural expressions, `such as Postmodern, Deconstructive or
pseudo historical styles are not appropriate.
C. LANDSCAPE DESIGN
1. The landscape treatment for the library site should be consistent with the palette
established for Newpott,Center.
,
2. The landscape setback along MacArthur Boulevard should address the master
landscape plan. Drifts of pine trees, shrub masses and evergreen ground cover are
appropriate.
Avocado Avenue should have a formal landscape treatment with regular planting of
street trees and turf at the ground plane.
4. The landscape concept is to be coordinated with the landscape plans of the adjacent
Newport Harbor Art Museum facility.
D. DESIGN REvrEw PROCEDURE
A design review process has been established by The Irvine Company (TIC) to
ensure that all development within Newport Center meets the requirements set forth
in these design guidelines. This review covers site planning, architecture,
landscaping, exterior signing, exterior lighting, and future improvements or exterior
renovations.
2. Th
A.
B.
C.
D.
design review procedure is divided into several steps:
Orientation
Conceptual planning review
Design development review
Construction document review
Submittals for review and approval at each step are to be made to The Irvine Company, or its
designee. All approvals are given by same.
F. SUBMITTAL GUIDELINES
Orientation:
An orientation meeting between The Irvine Company, the City, the Library and
their project design team should be undertaken prior to any formal design effort so
as to discuss the design guidelines and the design review process.
2. Conceptual Planning Review:
y This review covers conceptual plans for site planning, architecture, landscaping,
and interior improvement. At this stage, site planning is particularly important and
should be well developed.
E
0
Three (3) sets of conceptual plans are to be submitted for review. They must
contain, but are not limited to, the following:
A. Site plans and related information, including site area, building floor area,
site to floor area ratio (FAR) and parking data.
B. Schematic architectural plans, including floor plan(s) and elevations.
C. Exterior materials, colors and finishes under consideration.
D. Schematic landscaping plan.
E. Any other pertinent information.
Design Development Review:
This review covers specific designs for site planning, architecture, landscaping,
exterior signing, exterior lighting and interior improvements. The design drawings
should be a progression of the approved conceptual plans. Included in this review
are resolution of conditions placed on prior conceptual planning approval.
Three (3) complete sets of design drawings are to be submitted for review. They
must contain, but are not limited to, the following:
A. Site plans and related information, including site area, building floor area,
site to floor area ratio (FAR) and parking data
B. Architectural design, including floor plan(s), elevations and section(s).
C Sample board of materials, colors and finishes.
D. Landscaping design, including location and types of plant materials.
E. Exterior signing design, including location, dimensions, materials, colors,
typography and illumination.
F. Exterior lighting design, including location, fixture type and color.
G. Any other pertinent information.
4. Construction Document Review:
This review covers all necessary construction documents. The purpose of this
review is to assure that the design approved in the Design Development Review is
carried into final construction documents, and that issued raised in the Design
Development approval are resolved.
Three (3) complete sets of construction documents are to be submitted for review.
They must contain, but are not limited to, the following:
A. Final site plans and related data, including grading, surface drainage,
plumbing and electrical site plans.
B. Final architectural plans.
C. Final material, finish and color sample board(s).
D. Final landscaping and irrigation plans.
E. Final exterior signing plans, including locations and designs.
F. Final exterior lighting plans, including fixture illustrations, colors and pole
heights.
G. Pertinent details and specifications.
H. Construction schedule.
I. Any other relevant information.
All architectural, landscaping and engineering drawings and specifications are to be
prepared and signed by a respective architect, landscape architect and/or
professional engineer licensed to practice in California.
•
0
EXHIBIT G
to Transfer Agreement
Infrastructure Improvements
ON -SITE AND OFF -SITE
tASTRUCTURE IMPROVEMENTS
This EXHIBIT G is attached to that certain Transfer Agreement and Escrow
Instructions ( "Transfer Agreement ") made between THE IRVINE COMPANY ("TIC") and
the CITY OF NEWPORT BEACH ( "City "), dated 1990. City has agreed
in the Transfer Agreement to pay its fair share of its on -site and off -site
infrastructure improvements required in connection with the construction of a
new library on land to be acquired by the City from TIC ( "New Library Land ").
City agrees that on -site and off -site infrastructure improvements include, in
addition to the items listed below, all such improvements for which a commercial
developer would be required to pay, or construct in whole or in part; except
those off -site improvements where the enabling ordinance, resolution or statute
specifically provides that public libraries are exempt (or that public libraries
pay a reduced rate) and the costs of those off -site improvements which are spread
As fair share fees or otherwise on a reasonable basis among developers in a
geographic region not smaller than the city limits the City. The on -site and
off -site infrastructure improvements include the following:
1. MacArthur Boulevard Improvements: City shall share the cost of
improving and realigning MacArthur Boulevard between San Miguel Drive and Pacific
Coast Highway in accordance with the following allocation formula:
Total Project Cost X Frontage of City Owned Land on MacArthur Boulevard
2 Distance between San Miguel and
Pacific Coast Highway
This allocation formula assumes that at least one -half of the Total Project Costs
for such improvements will be paid by fair share fees applicable to development
in all of the City or by other public funding not paid in connection with any
development entitlement. If any owner of land fronting along MacArthur Boulevard
between San Miguel Drive and Pacific Coast Highway is required to pay for
improvements to MacArthur Boulevard on the basis of any formula which allocates
more than one -half of the Total Project Costs along his .or its MacArthur
Boulevard frontage, then City agrees to pay for its share of the MacArthur
Boulevard improvements on the basis of the formula applicable to such other
owner.
2. Undergrounding Utilities Along MacArthur Boulevard: City shall pay
for undergrounding of utility lines on the New Library Land and adjacent to the
site along MacArthur Boulevard. City shall be entitled to the benefit of any
utility relocation rights which have been reserved in connection with utility
easements on or adjacent to the New Library Land; provided, however, that City
hereby agrees to cooperate with TIC and other owners of land in Newport Village
to act as a single unified group in dealing with the utilities holding easements
in an effort to reach a single consistent solution to issues relating to
undergrounding or relocating utilities in Newport Village.
3. Avocado Avenue Improvements: City shall share the cost of
improvements for Avocado Avenue as follows:
Total Project Cost X Frontage of City Owned Land on Avocado Avenue
4428.5 feet
4. On -site Improvements: City shall pay for improvements required to
be constructed on the New Library Land and City shall construct all improvements
related to shared access over any land retained by TIC.
5. Landscaping Improvements: City shall pay for and install all
landscaping improvements along MacArthur Boulevard frontage adjacent to the New
Library Land on areas set aside for the ultimate alignment of MacArthur
Boulevard.
6. City shall pay all costs to provide utility connections to the New
Library Land including service connection charges, metering fees, capacity
charges and all other assessments or charges associated with the utility services
now or hereafter provided to serve the New Library Land.
11
Transfer Agrsm t
Exhibit 0
rafrastmaturs Isprsv nts
Psbrasr7 12, 1990
0 0
7. Fair Share Fees: City shall pay all fair share fees attributable
to the New Library Land and to the extent City does not otherwise qualify for
an exemption or a reduced assessment rate, transportation corridor fees.
8. The right of way required for the improvement of Avocado Avenue and
the ultimate alignment of MacArthur Boulevard shall be dedicated for such
purposes by TIC in connection with recordation of a map for the New Library Land
prior to close of escrow.
As used in this EXHIBIT G the term "Total Project Cost" shall mean all
costs in connection with a project including, but not limited to, driveways,
curbs, gutters, curb cuts, entryways, sidewalks and the like, streetlights,
perimeter walls or fences, signs, irrigation or drainage systems, sewer and
storm drain improvements, median or edge landscaping, regional sewer or storm
drain improvements, and all studies, engineering, construction control and other
design costs or "soft" costs related to such improvements.
ADOanWR.2N
2
Sraasfar Agnamant
Exhibit G
Iafrastruatura U*ravanants
FabrwrF 12, 1990
TRANSFER AGREEMENT AND ESCROW INSTRUCTIONS
By and Between
THE IRVINE COMPANY,
a Michigan corporation,
as TIC
and
THE CITY OF NEWPORT BEACH,
a California municipal corporation,
as City
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TABLE OF CONTENTS
TRANSFER AGREEMENT AND ESCROW INSTRUCTIONS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Escrow . . . . . . . . . . . . . . . . . . . . ... . . . . . . . .
2.1 Opening of Escrow . . . . . . . . . . . . . . . . . . . . . .
2.2 Closing of Escrow . . . . . . . . . . . . . . . . . . . . . .
2.3 Time of Essence . . . . . . . . . . . . . . . . . . . .
3. Deliveries to Escrow.
3.1 Items to be Delivered by TIC . . . . . . . . . . . . . . . .
(a) Deed, . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Special Restrictions . . . . . . . . . . . . . . . . . .
(c) Proration . . . . . . . . . . . . . . . . . . . . . . .
(d) Other Documents . . . . . . . . . . . . . . . . . . . .
3.2 Items to be Delivered by City . . . . . . . . . . . . . . .
(a) Costs and Prorations . . . . . . . . . . . . . . . . . .
(b) Other Documents . . . . . . . . . . . . . . . . . . . .
4. Costs and Prorations . . . . . . . . . . . . . . . . . . . . . . . .
4.1 Costs, Escrow and Title Fees . . . . . . . . . . . . . . . . .
4.2 Taxes and Assessments . . . . . . . . . . . . . . . . . . . .
5. Delivery of Items by Escrow to Parties . . . . . . . . . . . . . . .
5.1 To City . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.2 To TIC . . . . . . . . . . . . . . . . . . . . . . . . . . .
6. Conditions to Closing . . . . . . . . . . . . . . . . . . . . . . .
6.1 Conditions to City's Obligations . . . . . . . . . . . . . . .
(a) TIC's Breach . . . . . . . . . . . . . . . . . . . . . .
(b) Transfer and Possession. . . . . . . . . . . .
(c) Inspection and Soil Test . . . . . . . . . . . . . . . .
(d) Title Approval . . . . . . . . . . . . . . . . . . . . .
(e) Map . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) Acquisition of Contiguous Land . . . . . . . . . . . . .
(g) Sufficient Funds . . . . . . . . . . . . . . . . . .
6.2 Conditions to TIC's Obligations . . . . . . . . . . . . . . .
(a) City's Breach . . . . . . . . . . . . . . . . . . . . .
(b) Approval of Plans . . . . . . . . . . . . . . . . . . .
(c) Final Map . . . . . . . . . . . . . . . . . . . . . . .
(d) Required Permits . . . . . . . . . . . . . . . . . . . .
(e) Sufficient Funds . . . . . . . . . . . . . . . . . . . .
7. Escrow Cancellation . . . . . . . . . . . . . . . . . . . . . . . .
7.1 City's Right to Terminate . . . . . . . . . . . . . . . . . .
7.2 TIC's Right to Terminate . . . . . . . . . . . . . . .
8. Mutual Representations and Warranties . . . . . . . . . . . . . . .
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raANarM AGREEKENT
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8.1 No Violation . . . . . . . . . . . . . . . . . . . .
. . . . 8
8.2 No Action or Proceedings . . . . . . . . . . . . . .
. . . . 9
9.
City's Representations and Obligations . . . . . . . . . . .
. . . . 9
9.1 Prior Investigations and City's Satisfaction . . . .
. . . . 9
(a) Inspections . . . . . . . . . . . . . . . . . .
. . . . 9
9.2 Final Map . . . . . . . . . . . . . . . . . . . . . .
. . . . 9
9.3 Costs and Expenses of EIRs and Studies. . . . . . . .
. . . . 10
9.4 Construction . . . . . . . . . . . . . . . . . . . . .
. . . . 10
9.5 Costs of Infrastructure Improvements . . . . . . . . .
. . . . 10
9.7 Noise and Vibration . . . . . . . . . . . . . . . . .
. . . . 11
9.8 Governmental Permits. . . . . . . . . . . . . . .
. . . . 11
9.9 Grading . . . . . . . . . . . . . . . . . . . .
. . . . 11
9.10 No Assignment . . . . . . . . . . . . . . . . . . .
. . . 12
10.
Force Majeure . . . . . . . . . . . . . . . . . . . . . . .
. . . . 12
11.
Further Documents and Acts . . . . . . . . . . . . . . . . .
. . . . 12
12.
Eminent Domain Proceedings . . . . . . . . . . . . . . . . .
. . . . 13
13.
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . .
. . . 13
13.1 Survivability. . . . . .
. . . . 13
13.2 Broker's Commission. . . . . . . .
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13.3 Donative Intent. . . . . . . . . . . . .
. . . . 13
13.4 Waiver, Consent and Remedies . . . . . . . . . . . . .
. . . . 14
13.5 Attorneys' Fees . . . . . . . . . . . . . . . . . . .
. . . . 14
13.6 Notices . . . . . . . . . . . . . . . . . . . . . . .
. . . . 14
13.7 Gender and Number . . . . . . . . . . . . . . . . . .
. . . . 15
13.8 Entire Agreement . . . . . . . . . . . . . . . . . . .
. . . . 15
13.9 Captions . . . . . . . . . . . . . . . . . . . . . . .
. . . . 15
13.10 Governing Law . . . . . . . . . . . . . . . . . . . .
. 15
13.11 Invalidity of Provision . . . . . . . . . . . . . .
. ... 15
13.12 Amendments . . . . . . . . . . . . . . . . . . . .
. . . . 16
13.13 Counterparts . . . . . . . . . . . . . . . . . . . . .
. . . . 16
13.14 Exhibits . . . . . . . . . . . . . . . . . . . . . . .
. . . . 16
13.15 No Recordation . . . . . . . . . . . . . . . . . . . .
. . . . 16
13.16 Date of Performance . . . . . . . . . . . . . . . . .
. . . . 16
13.17 No Offer . . . . . . . . . . . . . . . . . . . . . . .
. . . . 16
13.18 Nondisclosure of Terms . . . . . . . . . . . . . . . .
. . . . 16
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raANarM AGREEKENT
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TABLE OF EXHIBITS
Legal Description ....................... EXHIBIT A
Standard Escrow Provisions .............. EXHIBIT B
Deed of Gift ............................ EXHIBIT C
Declaration of Special Land Use
Restrictions, Right of First Refusal,
Mortgage Lien and Option to Renew....... EXHIBIT D
Entry Permit .... ........................ EXHIBIT E
Design Criteria .................... :... EXHIBIT F
Infrastructure Improvements ............. EXHIBIT G
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MOSYM ACREEKW
May 1, 1990
\._—.
TRANSFER AGREEMENT AND ESCROW INSTRUCTIONS
This Transfer Agreement and Escrow Instructions ( "Agreement ") is made as
of , 19, (the "Effective Date "), by and between THE IRVINE
COMPANY, a Michigan corporation ( "TIC ") and the CITY OF NEWPORT BEACH, a
California municipal corporation ( "City "), as follows:
RECITALS
A. TIC desires to donate to City certain real property consisting of
approximately two acres for eleemosynary purposes. Such property, situated in
the City of Newport Beach, Orange County, California, is described in Exhibit
A attached to this Agreement (the "Land "). The Land is currently held by TIC
for investment purposes. City is acquiring a contiguous parcel of real property
consisting of approximately two acres. Such contiguous real property and the
Land are referred to in this Agreement together as the "New Library Land ".
B. It is expected that City will construct a public library on the New
Library Land with supporting infrastructure, hardscaping and landscaping, which
will provide a cultural benefit to the community at large. TIC desires to
restrict the use of the New Library Land to the operation and location of a
public library. City desires to assure TIC that it will not hold the land for
speculative purposes which would contravene the eleemosynary motives of TIC.
City desires to assure TIC further that the New Library Land will be used for
the intended purposes by accepting permanent use restrictions on the New Library
Land. The possibility that City would desire to change the use of the New
Library Land such that the use restrictions would be violated is extremely
remote.
AGREEMENT
NOW, THEREFORE, TIC and City agree as follows:
1. Transfer. Subject to the terms and conditions contained in this
Agreement, TIC hereby agrees to convey the Land to City and City hereby agrees
to accept the Land from TIC.
2. Escrow.
2.1 Opening of Escrow. Promptly after this Agreement has been
signed and delivered between the parties, TIC shall open an Escrow ( "Escrow")
with First American Title Insurance, 114 East Fifth Street, Santa Ana,
California 92702 or such other escrow company as is acceptable to both parties
(the "Escrow Holder") by delivering a fully executed copy of this Agreement to
Escrow Holder. Escrow Holder will notify both parties when Escrow has opened.
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Escrow Holder shall also notify TIC of any proposed or actual agreements, escrow
instructions or commitments made by City with respect to the Land or any portion
thereof of which Escrow Holder acquires knowledge during the pendency of this
Escrow. This Agreement shall constitute instructions to Escrow Holder. In
addition, the parties agree to be bound by the Standard Escrow Provisions
attached to this Agreement as EXHIBIT B and shall execute and deliver to Escrow
Holder the same or such other reasonable and customary supplemental escrow
instructions or other instruments as may be reasonably required by Escrow Holder
or the parties to consummate the donation described herein. No portion of the
attached EXHIBIT B or such other supplemental escrow instructions shall amend
or supersede any portion of this Agreement.
2.2 Closing of Escrow. The conveyance of the Land shall take
place through Escrow and become final upon satisfaction of all of the conditions
to closing set forth in Paragraph 6 and by delivery by Escrow Holder to the
parties of the documents and instruments set forth in Paragraph 5 below (the
"Closing "). The Closing shall occur, if at all, on or before the earlier of (i)
ten (10) business days after the conditions set forth in Paragraph 6 of this
Agreement have been satisfied or (ii) December 31, 1991, (the "Closing Date ").
2.3 Time of Essence. Time is of the essence of every provision
of this Agreement of which time is an element. If Escrow is not in a condition
to close by the agreed Closing Date, then Escrow Holder shall continue to comply
with the instructions contained in this Agreement until a written demand has
been made by a party entitled to do so for cancellation of Escrow. Escrow
Holder shall notify the other party of any such demand and shall immediately
cancel Escrow without any further instruction from any party.
3. Deliveries to Escrow.
3.1 Items to be Delivered by TIC. TIC shall deliver to Escrow
Holder on or before 4;00 p.m. on the business day prior to the Closing the
following;
(a) Deed. An original and fully executed and acknowledged
Deed of Gift conveying title to the Land to City in the form attached to this
Agreement as EXHIBIT C (the "Deed "). City shall execute and acknowledge its
acceptance of the Deed and return such Deed to TIC within three (3) business
days after delivery of an execution copy to City by TIC.
(b) Special Restrictions. A fully executed and acknowledged
original of the Declaration of Special Land Use Restrictions, Right of First
Refusal, Mortgage Lien and Option to Repurchase affecting the New Library Land
in the form attached to this Agreement as EXHIBIT D ( "Special Restrictions ").
City shall execute and acknowledge the Special Restrictions and return the
TRANSFER AGREEMENT
2 may 1, 1990
original document to TIC within three (3) business days after delivery of the
execution copy to City by TIC.
(c) Prorations. Funds sufficient to pay proration borne
by TIC, if any, as set forth in Paragraph 4 of this Agreement.
(d) Other Documents. Such other documents or items as TIC
is required to deliver by this Agreement through Escrow at Closing or as City
shall reasonably request to carry out the obligations of the parties under this
Agreement and to consummate the donation contemplated by this Agreement.
3.2 Items to be Delivered by Cit. City shall deliver to Escrow
Holder on or before 4:00 p.m. on the business day prior to Closing the
following:
(a) Costs and Prorations. Funds sufficient to (i) pay the
costs and proration , if any, owed by City as set forth in Paragraph 4 of this
Agreement, (ii) reimburse the cost paid by TIC for any bonds required in
connection with obtaining the Final Map and (iii) pay the costs determined by
TIC prior to Closing as set forth in Paragraphs 8.4 and 8.5.
(b) Other Documents. Such other documents or items as City
is required to deliver by this Agreement through Escrow at Closing or as TIC
shall reasonably request to carry out the obligations of the parties under this
Agreement and to consummate the donation contemplated by this Agreement.
4. Costs and Prorations.
4.1 Costs. Escrow and Title Fees. City shall pay all escrow fees,
escrow costs and escrow expenses. City shall pay all costs of recording the
Dead, including without limitation documentary transfer taxes, if any. If City
elects to obtain title insurance covering the Land at Closing,.then City shall
pay all costs and expenses of such title insurance, any endorsements and any
land surveys required to obtain the requested title insurance coverage. In no
event shall City's election to obtain title insurance coverage be a condition
to or cause a delay in the Closing as provided in this Agreement. TIC and City
shall each bear their own respective legal and accounting costs, if any, outside
of Escrow.
4.2 Taxes and Assessments. City shall provide a notice to the
county tax collector as described in Section 5091 of the Revenue and Taxation
Code as soon as practicable after budgeting funds for the new library. City
shall promptly upon Closing, take all further actions required by Article 5 of
Chapter 4 of Part 9 of Division 1 of the Revenue and Taxation Code (Sections
5081 through 5091) to cancel the taxes on the Land. The "data of apportionment"
(as described in Section 5082 of. the Revenue and Taxation Code) shall be the
3 TWSM acx�r
Mal 1, 1990
date of Closing for purposes of Section 5082.1 of the Revenue and Taxation Code.
TIC shall pay all real property taxes attributable to all periods prior to
Closing and TIC shall be entitled to the proceeds of any refund for taxes paid
and attributable to periods after Closing. TIC and City shall cooperate in good
faith to cause the New Library Land to be separately assessed and separated in
City's name from any land retained by TIC or any third party as provided in
California Revenue and Taxation Code Section 2821 at seq.
5. Delivery of Items by Escrow to Parties. The Escrow provided in this
Agreement shall close by Escrow Holder delivering the following documents:
5.1 To CitX: The fully executed and acknowledge Deed for the Land
by recordation in the Official Records of Orange County, California.
5.2 To TIC:
(a) The fully executed and acknowledged Special
Restrictions, affecting the New Library Land by recordation in the Official
Records of Orange County, California immediately after the Deed without any
intervening document or instrument describing the Land.
(b) Funds, if any, deposited by City to reimburse TIC for
the cost which it has incurred in connection with the Final Map and to pay.the
costs determined by TIC prior to Closing in accordance with Paragraphs 9.4 and
9.5.
6. Conditions to Closing. The respective obligations of TIC and City
to complete the donation of the Land are subject to satisfaction of the
conditions set forth below at or prior to Closing.
6.1 Conditions to City's Obligations. City's obligations; to
accept the Land are subject to satisfaction of the following conditions:
(a) TIC's Breach. TIC shall not be in default of any
material obligation under this Agreement and no event shall have occurred which
would constitute a material breach of TIC's representations or warranties
contained in this Agreement.
(b) Transfer and Possession. TIC shall have delivered
through Escrow an executed and recordable Deed in the form attached as EXHIBIT
S
a
(c) Inspection and Soil Test. City shall have approved the
physical condition of the Land as provided in this Paragraph. Provided that
City is not in breach of this Agreement, City shall be entitled to execute and
deliver to TIC an Entry Permit in the form of EXHIBIT E attached to this
TWSFKR AOR RMUT
4 may 1, 1990
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Agreement (the "Entry Permit ") and thereafter (but only thereafter), during the
inspection period described in this Paragraph, City may enter the Land at any
reasonable time for the purpose of conducting customary soil and other
engineering tests and to inspect and survey the Land, subject to complying with
the terms and conditions of such Entry Permit. City shall be deemed to have
approved all soil or other physical conditions pertaining to the Land unless it
has delivered to TIC written notice of disapproval within the period ending on
the earlier of one hundred eighty (80) days after the Effective Date or five
(5) days prior to the Closing Date. Timely delivery of such notice of
disapproval shall constitute failure of a condition to City's obligations under
this Agreement and either TIC or City may terminate this Agreement pursuant to
Paragraph 7, below unless City and TIC agree, by executing and delivering a
written instrument or instruments, to mitigate or cure the conditions upon which
such disapproval was based; provided, however, that TIC shall not be under any
obligation to undertake any mitigation or cure unless it shall agree to do so
in such written instrument.
�J (d) Title An r� oval. City shall, as soon as reasonably
practicable, order a preliminary title report issued by First American Title
Insurance Company at 114 East Fifth Street, Santa Ana, California, 92702, or
such other title company as is acceptable to both parties (the "Title Company ").
City shall promptly provide TIC with a copy of such preliminary title report.
City shall have inspected and approved the condition of title to the Land. City
shall be deemed to have approved title unless it has delivered to TIC written
notice of disapproval within sixty (60) days after the date of the preliminary
title report. If City has timely notified TIC of disapproval of any matter
(other than a lien for liquidated monetary amounts), then TIC may notify City
within fifteen (15) days after delivery of City's notice of disapproval that TIC
will cure such matter in which event this condition shall be deemed satisfied
as to such matter. If TIC does not notify City that it will cure all matters
disapproved by City, then this condition to City's obligations shall fail and
either City or TIC may terminate this Agreement pursuant to Paragraph 7, below.
— - The title to the Land to be conveyed to the City upon Closing shall be subject
to all matters affecting such title except for (i) liens for liquidated monetary
amounts which TIC shall be obligated to cure at Closing and (ii) those matters,
if any, which TIC shall agree in writing to remove in response to any notice of
disapproval which City has timely delivered to TIC. If TIC agrees to remove any
matters affecting title to Land, then it shall have until the Closing Date to
do so.
(e) 642. TIC shall have recorded the final map as required
by Paragraph 9.2 below. City shall assume the obligation to obtain and maintain
any bonds required in connection with the Final Map and to pay the bonded
obligations, and TIC shall be released from any obligation incurred in
connection with such bonds.
TRANSFER AGREEMENT
5 May 1, 1990
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(f) Acquisition of Contiguous Land. City's intention to
provide for construction of a public library and related improvements on the New
Library Land would be frustrated if the contiguous land is not also acquired by
City. Accordingly, a grant deed in the City's favor describing the contiguous
land shall be recorded in the Official Records of Orange County, California
immediately prior to, and on the same day as, Closing under this Agreement,
City acknowledges that TIC's eleemosynary purposes would be frustrated if this
condition is not satisfied and accordingly City agrees that this condition may
not be waived without the consent of TIC.
(g) Sufficient Funds. City shall possess or have ready
access to funds sufficient to construct the Improvements (as defined in
Paragraph 6.2(b) in accordance with plans and specifications approved by TIC
pursuant to Paragraph 6'.2(b).
6.2 Conditions to TIC's Obligations. TIC's obligation to convey
the Land shall be subject to satisfaction of the following conditions:
(a) City's Breach. City shall not be in default of any
material obligation under this Agreement and no event shall have occurred which
would constitute a material breach of City's representations or warranties
contained in this Agreement.
(b) dpnroval of Plans. TIC shall have approved as
satisfactory to TIC all plans and specifications for grading, landscaping,
handscaping and exterior construction of the library and all supporting streets,
driveways, curb cuts, entryways, sidewalks, perimeter walls, fences, irrigation
and drainage systems, landscaping, monument, directional and other signs and all
like improvements on the New Library Land (the "Improvements "). In approving
such plans and specifications, TIC may exercise reasonable discretion consistent
with the design criteria and process stated in the correspondence from Roger
Seitz of TIC dated April 17, 1989, and attached to this Agreement as EXHIBIT F.
City shall submit three copies of plans and specifications, elevations, artists'
conceptions, color samples and other information as may be required by TIC for
review of the plans and specifications for the Improvements. TIC shall approve
or disapprove any plans and specifications delivered to it pursuant to this
Paragraph as soon as possible but no longer than thirty (30) working days after
receipt of the required information. If TIC approves the plans and
specifications, then such approval shall be endorsed on a set of the plans and
specifications which shall be returned to City. If TIC does not approve such
plans and specifications, then TIC shall specify the aspects of the plans and
specifications not approved and City shall, within forty five (45) working days
after receiving TIC's disapproval, submit new plans and specifications for TIC's
approval. Failure of TIC to approve or disapprove any plans and specifications
within the thirty (30) working day period and TIC's continued failure to approve
or disapprove for five (5) working days after City's written notice to TIC that
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TIC has failed to approve or disapprove within the thirty (30) working day
period as required in this Paragraph shall be deemed approval of such plans and
specifications. Approval by TIC of any plans or specifications pursuant to this
�-- Paragraph shall only represent TIC's 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 TIC as to the adequacy
or sufficiency of such plans or specifications for architectural or engineering
design or the feasibility or integrity of any grading, landscaping, improvement
or construction contemplated by such plans and specifications for any use or
purpose. By approving such plans and specifications, TIC assumes no liability
or responsibility for such plans or specifications or for any defect in any
grading, landscaping, improvement or construction made pursuant to plans and
specifications.
"I
(c) Final Man. TIC shall have recorded a final map for the
New Library Land. The terms, configuration, conditions and certifications of
the Final Map shall be consistent with those approved by TIC in accordance with
Paragraph 9.2 of this Agreement.
(d) Recuired Permits. On or before ten (10) business days
prior to the Closing Date, City shall have obtained from the applicable
governmental authorities having jurisdiction, including without limitation all
of City's internal discretionary and ministerial decision makers, all the
required coastal, zoning or conditional use permits allowing the use of the Land
as contemplated by the Special Restrictions and grading and building permits
sufficient to allow commencement and completion of construction of the
Improvements.
(e) Sufficient Funds. On or before ten (10) business days
prior to the Closing Date, City shall have provided to TIC documentary evidence
that funds sufficient to construct the Improvements in accordance with plans and
specifications approved by TIC are possessed by and /or will be readily available
to City at the times required to pay for construction of the Improvements to be
constructed in accordance with the plans and specifications approved by TIC
pursuant to Paragraph 6.2(b) above.
(f) Driveway Alignments. The driveway alignment for the
shared access to the Library Land and the site to be acquired by the Newport
Harbor Art Museum immediately adjacent to the New Library Land shall be
established to accommodate the design of access to Corporate Plaza. TIC shall
retain an easement for shared access to the land areas retained by TIC north of
the New Library Land across the New Library Land. The easement shall not
unreasonably interfere with the use or improvement of the New Library Land by
City as contemplated by the Special Restrictions. The easement shall not be
retained or shall be terminated, if retained, in the event TIC transfers
TURVEa WPM=
M&7 1. 1990
substantially all of the entitlements to construct office improvements from
Newport Village.
7. Escrow Cancellation.
7.1 City's Right to Terminate. In the event there is a failure
of a condition to City's obligations as set forth in Paragraph 6.1 above, City
may terminate this Agreement by giving written notice to Escrow Holder and TIC
at any time prior to Closing. Failure of City to terminate this Agreement prior
to the Closing shall be deemed a waiver by City of the condition which failed,
and if such condition required approval by City such failure shall be deemed an
approval of the previously disapproved item. If City terminates this Agreement
as provided in this Paragraph 7.1, then City shall pay all title and escrow
cancellation charges; provided, however, that if failure of such condition is
related to a breach by TIC, then TIC shall pay the cancellation charges. Except
as specifically provided in this Agreement for City's right to terminate this
Agreement, in the event of default by TIC of its obligations under this
Agreement, City's sole and exclusive remedy shall be an action for specific
�J performance under this Agreement and City hereby waives and relinquishes all
claims for damages, including without limitation lost revenues or lost gain
arising by reason of TIC's default.
7.2 TIC's Right to Terminate. In the event there is a failure of
a condition to TIC's obligations as set forth in Paragraph 6.2 above, then TIC
may terminate this Agreement by giving written notice to Escrow Holder and to
City at any time prior to the Closing. Failure of TIC to terminate this
Agreement prior to the Closing shall be deemed a waiver by TIC of the condition
which has failed, and if such condition required approval by TIC, such failure
shall be deemed an approval of the previously disapproved item; provided,
however, that this sentence shall not apply to the approval of plans,
specifications or other matters relating to the improvement or use of the Land,
all of which shall continue to be subject to TIC's review and approval pursuant
to the Special Restrictions. If TIC terminates based upon a failure of
conditions relating to a breach by City, City shall pay all title and escrow
cancellation charges. If TIC terminates based upon a failure of any condition
not relating to a breach by City, then TIC shall pay all title and escrow
cancellation charges.
8. Mutual Representations and Warranties. In addition to all other
representations and warranties, if any, made in this Agreement, each party
represents and warrants to the other as follows:
8.1 No Violation. The execution, delivery, performance of and
compliance with this Agreement has not resulted and will not result in any
violation of, or be in conflict with, or result in the creation of, or
constitute a default under, any mortgage, indenture, contract, agreement,
8 nvssrmt racas
1, 1990
0
0
instrument, franchise, permit, judgment, decree, order, statute, rule or
regulation applicable to it.
\� 8.2 No Action or Proceedings. There is no suit, action or legal,
administrative, arbitration or other proceedings or investigations pending or,
to the knowledge of such party, threatened which affects its ability to perform
its obligations hereunder, under the Entry Permit, or under the Special
Restrictions.
9. City's ReRresentations and Obligations. In addition to its
obligations under the other provisions of this Agreement, City represents and
warrants to TIC, and hereby acknowledges and agrees as follows:
9.1 Prior Investigations and City's Satisfaction.
(a) Inspections. City is or by the end of its inspection
period will be familiar with the Land and has made and will make such
independent investigations as it deems necessary and appropriate concerning: the
use, sale, development, cost of development or suitability for development of
the Land. City acknowledges that the Land may have been farmed or used for
agricultural purposes and in connection therewith, fertilizers, pesticides, weed
killers or other chemicals may have been used on the Land. City hereby agrees
that it shall be solely responsible for determining the existence of any such
materials, for dealing with the existence of any such material and all
consequences arising in connection therewith. City agrees that TIC has not and
will not warrant the accuracy or completeness of various reports, plans and
specifications for existing improvements to a site, if any, given by it or its
agents to the other, and City agrees to verify and establish the accuracy and
completeness of such reports to its own satisfaction. City will accept the
Land, if at all, "AS IS" in its present state and condition, without
representation or warranty by TIC or its representatives to any matter, whether
or not expressly mentioned in this Agreement.
9.2 Final Map. City shall, at its sole cost and expense, process
and obtain approval of a map for the New Library Land which satisfies the
requirements of the Subdivision Map Act and applicable local ordinances. TIC
shall cooperate with City in obtaining a map for the New Library Land by signing
any applications or documents or instruments which it approves and which are
reasonably required in connection with obtaining a map for the New Library Land;
provided, however, that TIC shall not be obligated to incur any cost, expense,
liability, duty or obligations in connection with obtaining a map for the New
Library Land. If the conditions to approval of a map for the New Library Land
are not satisfactory to TIC, then, at TIC's election, it may determine that the
condition set forth in Paragraph 6.2(s) has failed and thereafter, either TIC
or City shall be entitled to terminate this Agreement in accordance with
Paragraph 7. If the map conditions are approved by TIC, then City, at its sole
TRANSFER AGREMENT
9 May 1. 1990
cost and expense shall be responsible for fulfilling and satisfying the duties
and obligations imposed in connection with obtaining the map and all other
conditions and obligations, while not imposed, would normally be imposed on the
"Applicant" and or the "Subdivider" in connection with obtaining a final map,
including, without limitation, obligations specified in any improvement
certificate on the map. TIC shall not be under any obligation to obtain or act
as surety for any bonds which may be required in connection with obtaining a map
for the New Library Land. City agrees to defend, indemnify and hold TIC
harmless from and against any and all liabilities, claims, demands, losses,
damages and costs including without limitation attorneys' fees, arising out of
or related to the duties of Applicant /Subdivider under such map conditions for
which City is responsible under this Paragraph. City agrees that failure to
obtain a map for the New Library Land shall not be deemed a default by TIC under
this Agreement. The map for the New Library Land shall not be recorded prior
to the date when all other conditions to TIC's obligations set forth in
Paragraph 6.2 (other than recording the maps for the New Library Land) have been
satisfied to the satisfaction of TIC.
9.3 Costs and Expenses of EIRs and Studies. Except as otherwise
set forth in this Agreement, City shall bear the cost of any environmental
impact report, engineering study or other expenses required in connection with
any approvals to carry out the transactions contemplated in this Agreement which
benefits the site which it will acquire. To the extent any environmental impact
report, engineering study, traffic study or other report prepared at the expense
of TIC benefits the New Library Land, then the City shall pay or reimburse to
TIC a prorata share of the costs and expenses of such reports based on the floor
area of development projects which are fully entitled and permitted which are
benefited by such reports or studies.
9.4 Construction. Within twelve (12) months after the Closing,
City shall commence grading in preparation for construction of the Improvements
on the Land in accordance with the plans and specifications approved by TIC.
City shall diligently proceed to complete construction. City shall
substantially complete construction of the approved Improvements (and any
landscaping required by Paragraph 9.7) in accordance with the plans and
specifications approved by TIC within thirty -six (36) months after the Closing.
Such times for commencement and completion of construction shall be extended due
to Force Majeure (defined below). Notwithstanding approval of plans and
specifications by TIC, after such approval, City agrees to act reasonably to
consent to incorporation of changes to elements of design, colors, materials and
landscaping of the Improvements that are requested prior to and during the
course of construction, provided TIC agrees to reimburse City for City's
increased costs to implement such changes.
9.5 Costs of Infrastructure Improvements. City understands that
development of Improvements on the New Library Land will be accomplished in
10 TWSM AGREDEso
conjunction with development of other real property in Newport Center by TIC,
and other private parties. City hereby agrees to pay its share of infra-
structure improvements made on, adjacent and off the situs of the New Library
1.
Land as set forth in EXHIBIT G.
9.6 MacArthur Boulevard Dedication and Maintenance. TIC and City
agree that a land area along MacArthur Boulevard shall be designated on the map
adjacent the New Library Land to be used exclusively for future expansion of
MacArthur Boulevard. City shall install and maintain such landscaping within
the area designated for expansion of MacArthur Boulevard according to standards
and criteria approved by TIC in its reasonable discretion at all times prior to
commencement of construction for expansion of MacArthur Boulevard. Installation
of such landscaping shall be completed upon to completion of construction of
the Improvements.
9.7 Noise and Vibration. City acknowledges and understands that
the Land is in proximity to the air traffic patterns of the John Wayne /Orange
County Airport and extra construction costs may be required at City's sole cost
to attenuate noise and /or vibration in accordance with the local government
codes.
9.8 Governmental Permits. Provided City is not in breach of any
provisions of this Agreement, it shall, at its sole cost and expense, apply for
and obtain any and all approvals necessary for the construction of the
Improvements on the Land, all subject to review and approval of the plans and
specifications therefor in accordance with Paragraph 6.2(b). Prior to
submitting to any governmental authority and prior to any public disclosure of
any applications, proposals, plans, specifications, exhibits, maps, reports,
requests, questionnaires, responses or other documents (collectively, the
"Permit Documents ") necessary to obtain any permit, City shall submit the Permit
Documents to TIC for TIC's approval.
9.9 Grading.
(a) City shall be responsible for removal of any and all
soil, rock or other material existing on the Land prior to any work performed
by TIC related to Avocado Avenue. City shall request its civil engineers to
agree on a complimentary mass grading plan with the engineers for the adjacent
land for the Newport Harbor Art Museum and TIC for all roads and land areas to
be improved in the Newport Village area. City shall use all reasonable efforts
to produce its grading plans in sufficient time prior to the time that grading
for TIC's Avocado Avenue and drainage improvement project is commenced so that
such a complementary mass grading plan may be timely developed.
(b) City hereby agrees that TIC may deposit on the Land all
soil, rock or other materials generated from the grading for Avocado Avenue in
11 MWSM M
y 1, 1990
• • j
the vicinity of the Land until that date which is the later of thirty (30) days
after written notice from City of City's intention to commence grading on the
Land or the date City commences grading of the Land for construction of
Improvements.. TIC shalt/reserve an access easement across the Land for purposes
of depositing said rock, soil or other materials as set forth in the Grant Deed
to the Land. TIC shall, at its sole cost and expense, remove any soil, rock or
other materials generated from grading of such streets. City shall be
responsible for removal of any and all soil, rock or other material existing on
the Land prior to any work performed by TIC related to Avocado Avenue,
9.10 No Assignment. City shall not assign its rights or interests
under this Agreement to any person or entity without TIC's express prior written
consent which consent may be withheld by TIC in its sole discretion; provided,
however, that City may assign this Agreement to any other governmental or quasi -
governmental entity or agency which has as its primary purpose maintenance and
operation of public libraries. Any such attempted assignment made in violation
in this provision shall be null and void. Subsequent to Closing, the New
Library Land shall be transferrable (including a transfer for financing
�— purposes) to the extent provided in and subject to the requirements of the
Special Restrictions.
10. Force Majeure. Each of the dates provided in Paragraph 9.4 for the
construction of the Improvements shall be deemed extended for and throughout
such additional period or periods of time as such work is prevented or delayed
due to strikes., lockouts, materials shortages, actions or inaction of
governmental bodies other than City or public utility companies, acts of God,
wars, riots, civil insurrection, court injunction, inclement weather or other
force of elements, or other matters reasonably beyond City's control.
11. Further Documents and Acts. Each of the parties hereto agrees to
cooperate in good faith with each other, and to execute and deliver such further
documents and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transactions contemplated
under this Agreement. If this Agreement is terminated for any reason, City
shall return to TIC any studies, reports or other documents previously supplied
to City by TIC, and shall deliver to TIC without charge any and all such
documents which City shall have obtained with respect to the Land prior to such
termination. Without limiting the generality of the foregoing, City shall
deliver to TIC without charge, copies of any and all soils reports, plans and
engineering studies and market research and feasibility studies developed by
City with respect to the Land. The foregoing. materials shall be delivered to
TIC without recourse or warranty, but City shall seek to obtain the consent of
any third party which may be required for TIC's use of such materials in the
course of TIC's improvement of the Land.
12 nussr� AGREmmivsslo
0 0
12. Eminent Domain Proceedings. If at any time during the Escrow period
all or any portion of..the Land (other than the area to be offered for dedication
for expansion of MacArthur Boulevard) is threatened with condemnation or legal
proceedings are commenced under the power of eminent domain, then
notwithstanding the provisions of Paragraph 7 above, City may elect to either
(i) affirm this Agreement or (ii) terminate this Agreement and cancel Escrow.
City shall deliver written notice of its election to Escrow Holder and TIC
within sixty (60) days of the threat or commencement of condemnation
proceedings. Failure to deliver an election to affirm this Agreement within
such period of time shall be deemed City's election to terminate this Agreement.
If City affirms this Agreement, then City shall accept the Land subject to any
condemned interest and TIC shall be entitled to receive all condemnation
proceeds. If City terminates this Agreement, then all instruments shall be
returned to the respective party who deposited the same, City and TIC shall each
pay one half (1/2) of all Escrow cancellation charges, all funds then in Escrow
and any funds paid outside of Escrow shall be returned to City, and each party
shall be excused from any further obligations to the other except for City's
obligations to TIC under the Entry Permit (see Paragraph 6.1(c)) and except as
to City's obligation to return or deliver documents to TIC (see Paragraph 11).
13. Miscellaneous.
13.1 Survivability. All covenants of City or TIC which are
expressly intended hereunder to be performed in whole or in part after the
Closing, and all representations, warranties and indemnities by either party to
the other, shall survive the Closing and be binding upon and inure to the
benefit of the respective parties hereto and their respective heirs, successors
and permitted assigns. Any agreements, understandings, warranties or
representations not expressly contained herein shall in no way bind either TIC
or City. TIC and City each expressly waives any right of rescission and all
claims for damages by reason of any statement, representation, warranty, promise
and /or agreement, if any, not contained in or attached to this Agreement.
13.2 Broker's Commission. TIC and City each represents to the
other that to the best of its knowledge, no brokerage commission, finder's fee
or other compensation of any kind is due or owing to any person or entity in
connection with the transactions covered by this Agreement. Each party agrees
to and does hereby indemnify, defend, save and hold harmless the other from and
against any and all costs, liabilities, losses, damages, claims, causes of
action or proceedings which may result from any broker, agent or finder licensed
or otherwise, claiming through, under or by reason of the conduct of such
indemnifying party in connection with the transaction covered by this Agreement.
13.3 Donative Intent. City acknowledges and confirms that the
transfer of the Land is a gift from TIC to City. TIC has not received any
consideration for the making of this gift. The transfer of the Land is not a
TRANS Mr o
13
0 0
condition for any past, concurrent or future approval, entitlement, or other
benefit sought by TIC from City.
13.4 Waiver.'Consent and Remedies. Either party may specifically
and expressly waive in writing any portion of this Agreement or any breach
thereof, but no such waiver shall constitute a. further or continuing waiver of
any preceding or succeeding breach of the same or any other provision. A
waiving party may at any time thereafter require further compliance by the other
party with any breach or provision so waived. The consent by one party to any
act by the other party for which consent was required shall not be deemed to
imply consent or waiver of the necessity of obtaining such consent for the same
or any similar acts in the future. No waiver or consent shall be implied from
silence or any failure of a party to act, except as otherwise specified in this
Agreement. Except as may be otherwise limited or specified elsewhere in this
Agreement, (i) all rights, remedies, undertakings, obligations, options,
covenants, conditions and agreements contained in this Agreement shall be
cumulative, no one of them shall be exclusive of any other and shall survive
Closing or termination of this Agreement without Closing, and (ii) either party
may pursue any one or more of its rights, options or remedies hereunder in the
event of the other party's breach hereunder, or may pursue any other remedy at
law or equity, whether or not stated in this Agreement.
13.5 Attorneys' Fees. In the event any declaratory or other legal
or equitable action is instituted between TIC and City and/or Escrow Holder in
connection with this Agreement, then as between City and TIC the prevailing
party shall be entitled to recover from the losing party all of its costs and
expenses, including court costs and reasonable attorneys' fees.
13.6 Notices. Any notice, request, demand, consent, approval or
other communication required or permitted hereunder or by law shall be validly
given or made only if in writing and delivered in person to an officer or duly
authorized representative of the other party or by United States mail, duly
-" certified or registered (return receipt requested), postage prepaid, and
addressed to the party for whom intended, as follows:
If to TIC: Irvine Land Management Company
550 Newport Center Drive
P.O. Box I
Newport Beach, CA 92658 -8904
Attention: Chick C. Willette
With a copy to: Irvine Land Management Company
550 Newport Center Drive
P.O. Box I
Newport Beach, CA 92658 -8904
Attention: General Counsel
14 xaursesRr eoaemeso
0 9
If to City: The City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92659 -1768
Attention: Robert L. Wynn, City Manager
With a copy to: The City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -1768
Attention: Robert Burnham, City Attorney
Any party may from time to time, by written notice to the other as provided
above, designate a different address which shall be substituted for that
specified above. If any notice or other document is sent-by mail as aforesaid,
the same shall be deemed served or delivered three (3) business days after
\ mailing thereof as above specified.
13.7 Gander and Number. In this Agreement (unless the context
requires otherwise), the masculine, feminine and neuter genders and the singular
and the plural shall be deemed to include one another, as appropriate.
13.8 Entire Agreement. This Agreement and its exhibits constitute
the entire agreement between the parties hereto pertaining to the subject matter
hereof, and the final, complete and exclusive expression of the terms and
conditions thereof. All prior agreements, representations, negotiations and
understandings of the parties hereto, oral or written express or implied, are
hereby superseded and merged herein.
13.9 Captions. The captions used herein are for convenience only
and are not a part of this Agreement and do not in any way limit or amplify the
terms and provisions hereof.
13.10 Governing Law. This Agreement and the exhibits attached
hereto have been negotiated and executed in the State of California and shall
be governed by and construed under the laws of the State of California.
13.11 Invalidiity of Provision. If any provision of this Agreement
as applied to either party or to any circumstances shall be adjudged by a court
of competent jurisdiction to be void or unenforceable for any reason, the same
shall in no way affect (to the maximum extent permissible by law) any other
provision of this Agreement, the application of any such provision under
circumstances different from those adjudicated by the court, or the validity or
enforceability of the Agreement as a whole.
15 TAMS A GUMO eT May 1, 1990
1
.13.12 Amendments. No addition to or modification of any provision
contained in this Agreement shall be effective unless fully set forth in writing
executed by both City and TIC.
13.13 Counterparts. At TIC's option, this Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument.
13.14 Exhibits. All exhibits to this Agreement are incorporated by
reference.
13.15 No Recordation. Pending the Closing of Escrow, neither City
nor TIC shall, without the consent of the other, record this Agreement, or a
short form or memorandum thereof, or take any other action which would
materially and adversely affect the marketability of TIC's title to the Land.
13.16 Date of Performance. If the date on which any performance
required hereunder is other than a business day when the Orange County
Recorder's office is open for business, then such performance shall be required
as of the next following business day when the office of the Recorder is open.
13.17 No Offer. Submission of this Agreement by TIC to City shall
not be deemed an offer to City to accept donation of the Land. TIC.shall not
be bound hereby in any manner until its delivery to City of an executed copy
hereof signed by TIC, already having been signed by City, and until such
delivery TIC reserves the right to show, offer for sale, and sell the Land to
other prospective buyers.
13.18 Nondisclosure of Terms. TIC and City acknowledge and agree
that the terms of this Agreement and its exhibits (until their recordation) are
confidential and constitute proprietary information of each of TIC and City.
Disclosure of the provisions of this Agreement could adversely affect the
ability of each party to carry out its ordinary business and /or purposes. TIC
and City agree that neither of them nor their employees, agents and
representatives (including without limitation its officers, directors and
attorneys) shall disclose the terms of this Agreement or its exhibits (until
their recordation) to any other person without the prior written consent of the
other; provided, however, that City may disclose the terms of this Agreement to
prospective major donors or lenders and neither party shall be barred from
discussing or commenting upon aspects of donation of the Land pursuant to this
Agreement which have been made public prior to the date of this Agreement
including, without limitation, the identification of the site of the Land and
its approximate acreage. The parties understand and agree that damages would
be an inadequate remedy for breach of this provision and that each party shall
have the right to specific performance of this provision and to injunctive
relief to prevent its breach or continued breach.
16 raeass�
MAY 1. 1990
\11
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
TIC: CITY:
THE IRVINE COMPANY, CITY OF NEWPORT BEACH,
a Michigan corporation a California municipal corporation
By: By:
Its: Mayor
Its:
By:
Its:
A00W,IB.2M/050190
17
ATTEST:
By:.
Its: City Clerk
APPROVAL RECOMMENDED
By:
Its: City Manager
APPROVED AS TO FORM:
By:
Its: City Attorney
TRABBYBR ACRUMM
may 1, 2990
0
L
EXHIBIT A
To Transfer Agreement
Legal Description
and
Plot of the Land
0 0
EXHIBIT B
To Transfer Agreement
Standard Escrow Provisions
(To Be Inserted)
0 0
EXHIBIT C
To Transfer Agreement
Deed of Gift
0 0
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO
AND MAIL TAX STATEMENTS TO:
�,. NEWPORT HARBOR ART MUSEUM
850 San Clemente Drive
Newport Beach, CA 92660
Space above this line for Recorder's use
DEED OF GIFT
The undersigned Grantor declares:
DOCUMENTARY TRANSFER TAX $ (GIFT DEED)
Computed on the full value of property conveyed, or
Computed on a full value less the value of liens or
encumbrances thereon remaining at the time of sale
For unincorporated area, or
X City of Newport Beach, California
THE IRVINE COMPANY, a .Michigan corporation, ( "Grantor "), hereby
GRANTS to THE CITY OF NEWPORT BEACH, a California municipal corporation
�. ( "Grantee "), the following described real property (the "Land ") in the City of
Newport Beach, County of Orange, State of California:
Parcel _ as shown on Parcel Map No.
recorded in Book _, Pages to
inclusive, of Parcel Maps, Records of
said County.
EXCEPTING AND RESERVING UNTO GRANTOR, its successors and assigns
together with the right to grant and transfer all or a portion of the same, as
follows:
A. All oil, oil rights, minerals, mineral rights, natural gas
rights, and other hydrocarbons by whatsoever name known, geothermal steam and
all products derived from any of the foregoing, that may be within or under the
Land, together with the perpetual right of drilling, mining, exploring and
operating therefor and storing and removing the same from the Land or any other
land, including the right to whipstock or directionally drill and mine from
lands other than those conveyed hereby, oil or gas wells, tunnels and shafts
into, through or across the subsurface of the Land, and to bottom such whipstock
or directionally drilled wells, tunnels and shafts under and beneath or beyond
the exterior limits thereof, and to redrill, retunnel, equip, maintain, repair,
deepen and operate any, such wells or mines; without, however, the right to
drill, mine, store, explore and operate through the surface or the upper 500
feet of the subsurface of the Land.
.B. Any and all water, water rights or interests therein appurtenant
or relating to the Land or owned or used by Grantor in connection with or with
respect to the Land (no matter how acquired by Grantor), whether such water
rights shall be riparian, overlying, appropriative, littoral, percolating,
prescriptive, adjudicated, statutory or contractual, together with the right and
power to explore, drill, redrill, remove and store the same from or in the Land
or to divert or otherwise utilize such water, rights or interests on any other
land owned or leased by Grantor; but without, however, the right to enter upon
the surface of the Land in exercise of such rights.
C. Permanent nonexclusive easements in gross on, over, under or
across that portion of the Land within 20 feet of the property lines of the Land
(which property lines shall be defined along those portions of the Land which
border public rights of way by the limit of such right of way as such rights of
way are shown to ultimately exist on said Parcel Map ) with the right
to enter upon that portion of the Land for the purpose, from time to time and
Transfer A{seemwnt
Exhibit C
Deed of Gift
'1
may 1, 1990
0 0
at any time, of (i) location, relocation, replacement and maintenance of any
electric, telephone, cable television, water, gas, sanitary sewer, drainage
and/or any other utility or service for the Land or any other real property and
(ii) if required by any governmental authority, location, relocation,
replacement and maintenance of driveways, curbs, curb cuts, entry ways, light
standards, traffic signs, traffic signals, sidewalks, permanent walls or fences,
landscaping, irrigation, monument, directional or other signs and like
improvements. Grantor further reserves temporary nonexclusive easements in
gross on, over or across that portion of the Land within 30 feet of the. property
lines of the Land with the right to enter upon the Land for the purpose of
construction and installing the utilities, services and improvements described
in this Paragraph C, which temporary easement shall continue until completion
of such construction and installation. Grantor shall have no obligation to
construct or install any utilities, services or improvements.
D. Temporary nonexclusive easements in gross with right of entry
(i) until that date which is the later of (A) thirty (30) days after written
notice to Grantor from Grantee of Grantee's intention to commence grading upon
the Land or (B) the date on which Grantee commences grading for construction of
improvements, on, over, under and across all of the land for the purpose of
depositing excess soil, rock and other materials and the grading of all streets
adjacent to and in the vicinity of the Land, and (ii) until completion of the
streets shown on any parcel or tract map as permanent streets, that portion of
the Land within 50 feet of any property line bordering on and parallel to said
streets for the purpose of installing and constructing permanent streets and
related improvements. Grantor shall, at its sole cost and expense and at the
request of Grantee, remove such excess soil, rock or other materials deposited
on the Land after the date hereof pursuant to exercise of the rights set forth
in this Paragraph D.
B. Permanent nonexclusive easements in gross on, over, under and
across the Land with right of entry, for the purpose of (i) accepting drainage
water from adjacent land areas north of the Land and (ii) without obligation to
do so, for constructing, installing, maintaining, repairing, servicing,
relocating or replacing facilities to accept and control drainage water;
without, however, unreasonably increasing the quantity of drainage water
discharged onto the Land or otherwise unreasonably interfering with Grantee's
reasonable use and enjoyment of the Land.
F. Permanent nonexclusive easements in gross on, over, under and
across the Land, with right of entry, for the purpose of constructing,
installing, maintaining, repairing, servicing, relocating or replacing
improvements for access, ingress and egress by vehicles and pedestrians as
required to provide access to the adjacent land area to the south of the Land
and for access, ingress and egress by vehicles and pedestrians to the adjacent
land area north of the Land; without however, unreasonably interfering with
Grantee's reasonable use and enjoyment of the Land. If substantially all of the
development entitlements attributable to the adjacent real property north of the
Land are transferred by Grantor from the planning area commonly known as Newport
Village to other areas, then this easement shall automatically terminate as to
any access, ingress and egress with respect to adjacent land areas north of the
Land.
G. A power of termination and right to reenter, take possession of
the Land and remove any and all persons or facilities therefrom by delivery of
written notice of termination and reentry to Grantee at the address set forth
in this Grant Deed for mailing tax statements to Grantee (or such other address
as Grantee shall designate in a written notice delivered to Grantor as provided
in the Special Restrictions, defined below) in the event of occurrence of any
one or more of the following conditions subsequent:
(i) The land or any portion thereof or the "Specific
Facilities" (as defined in the Special Restrictions) thereon or any portion
thereof are held, used, developed, operated or maintained for any purpose other
than the purposes permitted in the Special Restrictions, defined below.
(ii) Grantee shall not have commenced construction of the
Specific Facilities within twelve (12) months days after recordation of this
2
Trwfor Agreement
Exhibit C
Deed of GUC
May 1, 1990
E
0
Grant Deed or substantially completed construction of the Specific Facilities
within thirty six (36) months from the date of recordation of this Grant Deed
as such periods of time are extended by periods of "Unavoidable Delay" (as
defined in the Special Restrictions).
(iii) ' Grantee abandons the Land and /or the Specific
Facilities;
(iv) Grantee sells, contracts to sell, assigns, transfers,
leases or conveys (except as otherwise permitted in the Special Restrictions)
all or any portion of its interest in the Land or the Specific Facilities to a
third party without the prior written approval of Grantor which may be withheld
in Grantor's sole discretion.
Notwithstanding anything to the contrary herein, the power of termination
contained in this Paragraph G shall expire, terminate and be of no further force
or effect upon receipt by Grantee of a Certificate of Use and Occupancy for the
Specific Facilities from the appropriate governmental entity with jurisdiction.
In the event of expiration of this power of termination, Grantor shall, upon the
written request of Grantee, execute a quitclaim deed or other instrument in
recordable form specifically making reference to and relinquishing and releasing
this power of termination; provided, however, the other exceptions and
reservations contained in this Grant Deed shall remain in full force and effect
and shall not be affected by such expiration.
Subject to:
1. General and special taxes and assessments for the current fiscal
tax year and any,and all nondelinquent bonds and /or assessments;
2. That certain Declaration of Special Land Use Restrictions, Right
of First Refusal, Mortgage Lien and Option to Repurchase recorded concurrently
herewith and incorporated herein by this reference (the "Special Restrictions ");
and
3. All other covenants, conditions, restrictions, reservations,
rights, rights of way, easements, dedications, offers of dedication and other
matters of record or apparent.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
, 198_
THE IRVINE COMPANY,
a Michigan corporation
By:
Its:
By:
Its:
"GRANTOR"
3
Sra for Agfte r e
Exhibit C
Dad of Gift
My 1, 1990
0
0
Grantee, by execution of this instrument, hereby accepts the grant of Land
upon the conditions and reservations stated in this Grant Deed and agrees to be
bound by the terms thereof.
This is to certify that the interest in real property conveyed by the
Grant Deed dated from The Irvine Company, as Grantor, to the
City of Newport Beach,as Grantee, a political corporation and /or governmental
agency is hereby accepted by the undersigned officer or agent on behalf of the
City Council of Grantee pursuant to authority conferred. by resolution of the
City Council of Grantee adopted on . and the Grantee
consents to recordation thereof by its duly authorized officer.
CITY OF NEWPORT BEACH
By:
Its: Mayor
ATTEST:
By:
Its: City Clerk
APPROVED AS TO FORM:
By:
Its: City Attorney
adensd.W050190 4
Transfer A{nemaat
Exhibit C
Deed of Gift
Mar 1, 1990
0
STATE OF CALIFORNIA )
}.ss
COUNTY OF )
E
On 19_, before me, the undersigned, a Notary Public in
and for said State, personally appeared
and personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons who executed the within
instrument as and on behalf of
THE IRVINE COMPANY, a Michigan corporation, and acknowledged to me that said
corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA )
).as
COUNTY OF )
On , 19_, before me, the undersigned, a Notary Public in
and for said State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as Mayor, on behalf of the
City of Newport Beach, which executed the within instrument pursuant to
governing law and a resolution of its board of directors and acknowledged to me
that the City of Newport Beach executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
adonxd. 2x,1050190 5
Transfer Axreeoent
Exhibit C
Dud of Glft
Kay 1, 1990
i i
When Recorded Mail To:
THE IRVINE COMPANY
550 Newport Center Drive
Newport Beach, CA 92660
Attention:
Space above this line for Recorder's use
DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT
OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE
EXHIBIT D
To Exchange Agreement
V
0 0
TABLE OF CONTENTS
DECLARATION OF SPECIAL LAND USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND
OPTION TO REPURCHASE
ARTICLE 1. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 1
1.1
Grantee's Representations and Warranties. . . . . . . . 1
1.2
Statement of Declarant's General Purposes. . . . . . . . 2
1.3
Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
(a) "Benefited Property" . . . . . . . . . . . . . . . 2
(b) "Center" . . . . . . . . . . . . . . . . . . . . . 2
2.6
(c) "Declarant" . . . . . . . . . . . . . . . . . . . 2
2.7
(d) "Effective Date" . . . . . . . . . . . . . . . . . 2
(e) "Final Map" . . . . . . . . . . . . . . . . . . . 2
(f) "Grantee" . . . . . . . . . . . . . . . . . . . . 3
2.8
(g) The "Gross Floor Area" . . .. . . . . . . . . . . . 3
ARTICLE 2. SPECIFIC
RESTRICTIONS. . . . . . . . . . . . . . . . . 3
2.1
Specific Facilities . . . . . . . . . . . . . . . . . . . 3
(a) Improvement and Continued Use. . . . . . . . . . . 3
(b) Construction . . . . . . . . . . . . . . . . . . . 3
2.9
(c) Commencement and Completion. . . . . . . . . . . 3
2.10
(d) Grading . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3. GENERAL RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . 8
(e) Utilities, Streets and Public Improvements. . . . 4
Unapproved Development or Use . . . . . . . . . . . . . . 8
(f) Landscaping . . . . . . . . . . . . . . . . . . . . 4
General Maintenance . . . . . . . . . . . . . . . . . . . 6
(g) Alterations and Additions . . . . . . . . . . . . . 4
2.2
Declarant's Approvals . . . . . . . . . . . . . . . . . . 4
Drainage. . . . . . . . . ... . . . . . . . . . . . . 8
(a) Approvals Required . . . . . . . . . . . . . . . . 4
(b) Time for.Approvals . . . . . . . . . . . . . . . . 5
(c) As Built Plans . . . . . . . . . . . . . . . . . . 5
2.3
Grantee's Cost. . . . . . . . . . . . . . . . . . . . . 5
2.4
Fulfillment of Map Conditions . . . . . . . . . . . . . . 5
2.5
Compliance With Law . . . . . . . . . . . . . . . . . . . 5
(a) Grantee to Comply . . . . . . . . . . . . . . . . . 5
(b) Approvals of Applications . . . . . . . . . . . . . 6
2.6
Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.7
Transfers. . . . . . . . . . . . . . . . . . . . . 6
(a) Transfers Prohibited . . . . . . . . . . . . . . . 6
(b) Permitted Transfers . . . . . . . . . . . . . . . . 6
2.8
Subordination . . . . . . . . . . . . . . . . . . . . . . 7
(a) Copy of Loan Documents. . . . . . . . 7
(b) Title Report . . . . . . . . . . . . . . . . . . . 7
(c) Disbursement Instructions. . . . . . . . . . . 7
(d) Request for Notice of Default. . . . . . . . . . . 7
2.9
Costs of Regional Development . . . . . . . . . . . . . . 7
2.10
MacArthur Boulevard Dedication and Maintenance. . . . . 7
ARTICLE 3. GENERAL RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . 8
3.1
Unapproved Development or Use . . . . . . . . . . . . . . 8
3.2
General Maintenance . . . . . . . . . . . . . . . . . . . 6
3.3
Restoration . . . . . . . . . . . . . . . . . . . . . . . 8
3.4
Drainage. . . . . . . . . ... . . . . . . . . . . . . 8
Transfer Agee nt
SpeeiaL RestrLatlons
RehLblt D
]. Mq 1, 1990
3.5
Signs . . . . . . . . . . . . . . . . . . . .
. . . . . . 8
3.6
Prohibited Operations and Uses . . . . . . .
. . . . . . 9
3.7
No Subdivision . . . . . . . . . . . . . . .
. . . . . . 9
3.8
Zoning . . . . . . . . . . . . . . . . . . .
. . . . . . 9
3.9
Indemnity . . . . . . . . . . . . . . . . . .
. . . . . . 10
ARTICLE 4. DECLARANT'S RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . 11
ARTICLE 5. REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1 Default and General Remedies . . . . . . . . . . . . . . 11
(a) Damages . . . . . . . . . . . . . . . . . . . . . . 11
(b) Equity . . . . . . . . . . . . . . . . . . . . . . 11
(c) Mortgage Lien . . . . . . . . . . . . . . . . . . . 11
(i) Power of Sale . . . . . . . . . . . . . . . 12
(ii) Application of Proceeds. . . . . . . . . . 12
(iii) Foreclosure by Court Action. . . . . . . . 12
(iv) Waiver of Statute of Limitations. . . . . 12
(v) Notice of Sale . . . . . . . . . . . . . . 13
5.2 Inspection . . . . . . . . . . . . . . . . . . . . . . . 13
5.3 Option to Repurchase the Land . . . . . . . . . . . . . . 13
(a) Grant of Option . . . . . . . . . . . . . . . . . . 13
(b) Exercise of Repurchase Option. . . . . . . . . . . 13
(c) Expiration and Quitclaim . . . . . . . . . . . . . 14
(d) Repurchase Price . . . . . . . . . . . . . . . . . 14
(e) Repurchase Escrow Terms . . ... . . . . . . . . . . 14
(f) Irrevocability . . . . . . . . . . . . . . . . . . 15
(g) Warranties, Plans and Specifications. . . . . . . 15
5.4 Arbitration Procedure . . . . . . . . . . . . . . . . . . 15
5.5
Waiver . . . . . . . . . . . . . . . . .
. . . . . . . . 16
5.6
Costs of Enforcement . . . . . . . . . .
. . . . . . . . 16
5.7
Rights of Lenders . . . . . . . . . . . .
. . . . . . . . 16
5.8
Advances . . . . . . . . . . . . . . . .
. . . . . . . . 17
ARTICLE 6. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . 17
6.1 Unavoidable Delay . . . . . . . . . . . . . . . . . . . . 17
6.2 Continuous Operations . . . . . . . . . . . . . . . . . . 17
6.3 Covenants to Run With the Land; Term. . . . . . . . . 17
(a) Covenants to Run With the Land. . . . . . . . . . 17
(b) Term . . . . . . . . . . . . . . . . . . . . . . . 17
6.4 Assignment by Declarant . . . . . . . . . . . . . . . . . 1s
6.5 Amendments . . . . . . . . . . . . . . . . . . . . . . . 18
6.6 Release . . . . . . . . . . . . . . . . . . . . . . . . . 18
Transfer Agree nt
spatial Ramtriatiana
Exhibit 0
ii May 1. 1990
(a) Release by Declarant . . . . . . . . . .
. . . . . 18
(b) Not Applicable to Declarant. . . . . . .
. . . . . 18
6.7
Notice . . . . . . . . . . . . . . . . . . . .
. . . . . 18
6.8
Governing Law . . . . . . . . . . . . . . . . .
. . . . . 18
6.9
Severability . . . . . . . . . . . . . . . . .
. . . . . 18
6.10
Captions . . . . . . . . . . . . . . . . . . .
. . . . . 19
6.11
Entire Agreement . . . . . . . . . . . . . . .
. . . . . 19
6.12
Gender and Number . . . . . . . . . . . . . . .
. . . . . 19
6.13
Time of the Essence . . . . . . . . . . . . . .
. . . . . 19
Transfer Agree nt
spatial Ramtriatiana
Exhibit 0
ii May 1. 1990
0 0
TABLE OF EXHIBITS
Property Description .................... 1
Specific Facilities ..................... 2
Subordination Agreement ................. 3
Transfer Agreement
Spacial Eestrietiena
Eahlbit D
iii May 1, 2990
DECLARATION OF SPECIAL LAND USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND
OPTION TO REPURCHASE
THIS DECLARATION ( "Declaration ") is made as of ,1989, 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:
Parcel as shown on Parcel Map No. recorded
in Book Pages _ to _, inclusive, of Parcel Maps,
Records of said County.
B. Grantee and Declarant have also entered into a Transfer Agreement and
Escrow Instructions by which Grantee is acquiring from Declarant real property
adjacent to and contiguous with the Exchange Land which real property is
situated in the City of Newport Beach, County of Orange, State of California
( "Transfer Land ") and is described as follows:
Parcel as shown on Parcel Map No. recorded
in Book _, Pages _ to _, 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 (the "Land ") to improve and use the Land in accordance with the
covenants, conditions, rights, restrictions and limitations as particularly set
forth herein (collectively referred to as the "Restrictions "), and Declarant is
granting the Land to Grantee on the basis of Grantee's continuing compliance
with such Restrictions.
NOW, THEREFORE, in consideration of the foregoing (including the
conveyance of the Land by Declarant to Grantee), and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1. GENERAL PROVISIONS.
1.1 Grantee's Representations and Warranties. GRANTEE REPRESENTS
AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SAME
IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND FOR THE PARTICULAR USES
AND PURPOSES AUTHORIZED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT:
(a) GRANTEE IS EXPERIENCED AND KNOWLEDGEABLE IN THE CONSTRUCTION AND OPERATION
OF PUBLIC FACILITIES, AND DECLARANT AND GRANTEE DESIRE TO PROVIDE A PUBLIC
LIBRARY TO SERVE NEWPORT BEACH; (b). DECLARANT HAS CONVEYED AND GRANTEE HAS
ACCEPTED FEE TITLE TO THE LAND FOR USE BY GRANTEE IN ACCORDANCE WITH THE
PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DECLARANT AND GRANTEE DO
NOT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE NOT
OTHERWISE PERMITTED HEREIN; (d) THE LIKELIHOOD THAT ANY BREACH WILL OCCUR AND
THAT.DECIARANT WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH
OR NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (e)
WITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOSES AND EXPECTATIONS OF
DECLARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE
DEFEATED; (f) BUT FOR CONVEYANCE OF THE LAND, GRANTEE WOULD BE REQUIRED TO PAY
SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE
ESTABLISHED THE FAIR MARKET VALUE OF THE IAND 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) DECIARANT AND GRANTEE
ACKNOWLEDGE THAT MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR
Transfer Aaraamant
Spacial Rastrlcti9
Exhibit D
1 Ma), 1, 1990
i i
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
SKILLS, EXPERTISE AND SUITABILITY IN CONSTRUCTION AND OPERATION OF THE SPECIFIC
FACILITIES DESCRIBED BELOW, DECLARANT WOULD NOT HAVE CONVEYED THE LAND TO
GRANTEE, BUT WOULD HAVE RETAINED THE BENEFITS OF OWNERSHIP, INCLUDING FUTURE
APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES,
DECLARANT HAS CONVEYED THE LAND TO GRANTEE.
1.2 Statement of Declarant's General Purposes. Declarant is the
owner of a large and unique landholding, part of which has been developed as a
master planned business, recreational, hotel, residential and retail Center,
described below, in the City of Newport Beach (the "City "). Among the
distinguishing characteristics of this masterplanned Center are the clear
delineation of use areas throughout the Center, together with the 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 elects to
convey to third parties. Should the development limitations imposed by
Declarant be exceeded, the roadways and the infrastructure improvements
servicing the Center and its environs could be overutilized, resulting in
undesirable traffic congestion and imbalances within the Center. Such
conditions could in turn adversely affect the ability of Declarant to develop,
own, operate, lease or sell its landownings, including without limitation the
"Benefited 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) "Benefited Property" shall mean the real property to
which the benefit of the provisions of this Declaration inures, and as of the
execution of this Declaration shall mean the real property described on EXHIBIT
I attached hereto. Declarant shall have the right by a duly recorded amendment
hereto executed solely by Declarant to substitute for or add to the Benefited
Property any real property owned by Declarant in the County of Orange,
California. The Benefited 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 specifically assign in writing the right
to enforce these Restrictions, subject to the provisions of the Section entitled
"Assignment by Declarant."
(d) "Effective Date" of this Declaration shall be the date
this Declaration is recorded in the Official Records of Orange County,
California.
(e) "Final Map" shall mean the final map covering the Land
described as Parcel Map No. as shown on a map recorded in Book
2
Truafar Atrax =
Spacial RaatrLCtio
Exhibit p
May 1. 1990
s •
Pages to inclusive, of Parcel Maps, Records of Orange County,
California.
..._.,
(f) "Grantee" shall mean the Grantee identified above and
each and every successor; assignee, owner, lessee, licensee or other occupant
of the Land, the Specific Facilities, as defined below, or any portion thereof
or interest therein, and each of them, during their ownership or occupancy
thereof. However, such term shall not include any person having an interest in
all or any portion of the Land or Specific Facilities merely as security for the
performance of an obligation. Without limiting the generality of the foregoing,
if Grantee leases all or any of its interest in the Land or the Specific
Facilities, both the lessor and lessee under such lease shall be responsible as
principals (and not sureties) for compliance with all the terms and provisions
of this Declaration.
(g) The "Gross Floor Area" shall mean the aggregate number
of square feet of floor space on all floor levels of any building, including
mezzanines, measured from the interior face of all exterior walls. No
deductions or exclusions shall be made by reason of columns, stairs, elevators,
escalators, or other interior construction or equipment.
ARTICLE 2. SPECIFIC RESTRICTIONS.
2.1 Specific Facilities.
(a) Improvement and Continued Use. Grantee represents and
agrees that Grantee shall cause the Land to be improved only with the specific
facilities described on EXHIBIT 2 attached hereto (the "Specific Facilities ")
and the other improvements described on EXHIBIT 2 attached hereto (the "Other
Improvements ") and in full accordance with all of the terms of this Declaration,
and that Grantee shall cause the Land, the Specific Facilities and the Other
Improvements to be used solely for a public library with related parking and no
other use, notwithstanding that other uses may be permitted under applicable
zoning ordinances, and in full accordance with all of the terms of this
Declaration. Use as a public library may include all uses and activities
commonly associated with public libraries now and in the future including any
form of information storage and retrieval such as video tapes, books, optical
and magnetic disks or other technologies for information storage and retrieval.
Grantee may charge fees, rentals and late charges for loan or use of information
media provided that fees, rentals and charges do not exceed the cost of
operation of the public library facility. No portion of the Land, or any
improvements thereon, or any portion thereof, shall be used for retail,
commercial, quasi retail or quasi - commercial facilities that materially compete
with the retail and commercial facilities in the Center or otherwise improved,
developed, used, operated or maintained with any facilities or for any purpose
whatsoever except as set forth above unless expressly approved by Declarant,
which approval may be granted or withheld by Declarant in its sole discretion.
(b) Construction. Grantee shall improve the Land with the
construction and installation of the Specific Facilities and the Other
Improvements pursuant to the plans and specifications approved by Declarant
pursuant to the Exchange Agreement and the Transfer Agreement. If Grantee
desires to make any substantial alterations, modifications, additions or changes
to the exterior elements of any plans and specifications previously approved by
Declarant, then Grantee shall submit three copies of any Change Order to
Declarant for its approval prior to obtaining approval of such Change Order by
the governmental entity having jurisdiction and prior to incorporating such
Change Order in the work. Declarant shall approve or disapprove such Change
Order in accordance with the standards and procedures set forth in Section 2.2.
Construction and installation shall be commenced and completed within the time
periods set forth in the Section below entitled "Commencement and Completion."
(c) Commencement and Completion. Subject to extensions of
time for unavoidable delays as provided under the provision entitled
"Unavoidable Delay," (i) within the time period specified on EXHIBIT 2 as the
"Commencement Date," measured from and after the Effective Date of this
Declaration, Grantee shall have commenced construction of the Specific
Facilities on the Land, and (ii) within the time specified on EXHIBIT 2 as the
Tr=afor A{rem t
Sp"oLx1 M"trLctLO
ExhibLt 0
Key 1, 1990
0 0
"Completion Date," measured from and after the Effective -Date of this
Declaration, Grantee shall have completed construction of the Specific
Facilities on the Land in a manner consistent with plans and specifications
approved in writing by Declarant pursuant to the Agreement. As used herein, the
term "commenced construction" shall mean the completion of substantial grading
of the Land and the pouring of all or a substantial portion of all of the
footings and foundations for the entire Specific Facilities (which need not
necessarily include the ground floor slabs). Grantee shall be deemed to have
"completed construction" of the Specific Facilities only at such time as Grantee
shall have obtained from the appropriate governmental entity or agency a valid
Certificate of Use and Occupancy for the Specific Facilities. Grantee shall
commence and complete construction of the Other Improvements prior to or
contemporaneously with such Specific Facilities.
(d) Gra i Prior to the commencement of any grading or
similar work on the Land, Grantee shall submit to Declarant for its approval
two sets of plans and specifications for grading, terracing and filling of the
Land and for construction of other similar improvements in, on or about the
Land.
(e) Utilities. Streets and Public Improvements.
(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.
(ii) In addition to any such facilities constituting a
part of the Specific Facilities or the Other Improvements, Grantee shall
construct and install or pay for construction and installation of all streets,
street lights, driveways, curb cuts, entry ways, sidewalks and the like,
perimeter walls and fences, irrigation and drainage systems, landscaping,
monument, directional or other signs and all like improvements on the Land or
between the Land and adjoining sidewalks or the curbs of adjoining streets, as
required by the Exchange Agreement.
(f) Landscaping, In addition to the landscaping constituting
a part of the Other Improvements, if any, Grantee shall landscape the Land as
necessary to create a first class attractive condition, and in a manner
consistent with the Newport Center Theme Landscaping Design Criteria (as defined
below). Grantee shall submit to Declarant for its approval two sets of plans
and specifications for the landscaping on the land.
(g) Alterations and Additions. Grantee shall not make any
additions, alterations or other modifications ( "alterations ") of or to the
exterior. of the Specific Facilities or any additions, alterations or other
modifications to the visible portions of the Other Improvements or other
improvements from time to time located on the Land, without the prior written
approval of Declarant. Declarant shall approve or disapprove of such
alterations in accordance with the standards and procedures set forth in Section
2.2. All such alterations shall be subject to the provisions of Article 2
hereof. If Grantee desires to add additional structures to the Land other than
those specified in EXHIBIT 2, then Declarant may impose additional restrictions,
covenants and obligations as a condition to its approval. As used in this
Section, the "exterior" of the Specific Facilities shall mean all roofs, outside
walls and facades, structural foundation, entrance doors, windows, outside
walkways, ramps and other accessways, and parking facilities.
(a) Approvals Required. Except with respect to plans and
specifications approved prior to the recordation of this Declaration, no
construction, installation or alteration of the Specific Facilities, the Other
Improvements, or any other landscaping, grading or other improvements in, about
or on the Land shall be commenced unless the concept, plans and specifications
for the exterior elements of such improvements have first received the written
approval of Declarant exercising its sole and absolute discretion. The
"— improvements constructed shall comply with the plans and specifications approved
iranefer Aaree t
special Restrictions
Sahibit D
4 May 1, 1990
by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that
the Specific Facilities, the Other Improvements and all other landscaping and
improvements on the Land shall be designed, constructed and installed to provide
for a library with complementary landscaping and surrounding improvements which,
in the sole discretion of Declarant, is in harmony with the plan and design of
the Center. Landscaping shall conform to the Newport Center Theme Landscaping
Design Criteria attached as EXHIBIT 3,
(b) Time for Approvals. Declarant shall approve or
disapprove any plans and specifications delivered to Declarant pursuant to this
Article as soon as possible but no longer then 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 plan and specifications and one set of such documents bearing
Declarant's approval shall be returned to Grantee within such thirty (30)
working day period. I£ Declarant does not approve such plans and
specifications, Declarant shall notify Grantee of its reasons for not approving
such plans and specifications and Grantee shall, within forty five (45) working
days after receiving notice of Declarant's disapproval, submit new plans and
specifications for Declarant's approval. Failure of Declarant to approve or
disapprove any plans and specifications within said thirty (30) working day
period and Declarant's continued failure to approve or disapprove for five (5)
working days after Grantee's written notice to Declarant that Declarant has
failed to approve or disapprove as required herein shall be deemed approval
thereof. The approval by Declarant of any plans and specifications pursuant to
this Section shall only represent Declarants' satisfaction with the plans and
specifications as to their general aesthetic elements. Such approval shall not
be deemed to constitute any representation or warranty by Declarant as to the
adequacy or sufficiency of such plans and specifications for architectural or
engineering design or the feasibility or integrity of any grading, landscaping,
improvement or construction contemplated thereby for any use or purpose. By
approving such plans and specifications, Declarant assumes no liability or
responsibility therefor or for any defect in any grading, landscaping,
improvements or construction made pursuant thereto.
(c) As Built Plans. Upon completion of the grading,
landscaping and construction of improvements, Grantee shall submit to Declarant
two "as built" sepias and a Certificate of Compliance executed by Grantee's
state licensed consultant (engineer, architect and /or landscape architect). The
Certificate of Compliance shall warrant that the completed grading, landscaping
and construction conforms to the plans and specifications therefor approved by
Declarant.
2.3 Grantee's Cost. The Specific Facilities, the other
Improvements, and all other landscaping, grading and other improvements made or
constructed in, about or on the Land as contemplated herein shall be
constructed, installed and completed at the sole cost and expense of Grantee and
without any cost, liability or expense to Declarant.
2.4 Fulfillment of Map Conditions. Certain map conditions dated
19_ (copies of which have been provided to Grantee) have been
imposed in connection with the approval and recordation of the Final Map.
Except as otherwise agreed in writing by Declarant and Grantee, Grantee shall
comply with and /or fulfill all of those duties and obligations imposed by such
map conditions on the "Applicant" and /or "Subdivider" attributable to Grantee's
use or development of the Land, all at Grantee's sole cost and expense.
2.5 Compliance With Law.
(a) Grantee to Comely. The Specific Facilities, the Other
Improvements and all other landscaping, grading and other improvements made or
constructed in, about or on the Land, and the use thereof, shall comply at all
times with all public laws, ordinances and regulations applicable thereto.
Without limiting the generality of the foregoing, Grantee shall obtain, at its
sole expense, all of its internal and external governmental approvals and
permits and approvals of other governmental authorities with jurisdiction which
Tra far Agree at
Special Reetrictto
Exhibit 0
5 may 1, 1990
0 •
may from time to time be required with respect to the performance contemplated
under this Declaration, including, as applicable and without limitation,
appropriate zoning, building permits, permits from the California Coastal
Commission, operating and business licenses and permits and the like. In
obtaining such approval@ and permits, Grantee shall prepare, at its sole
expense, as necessary and without limitation, all environmental impact reports, .
engineering studies and the like as necessary.
(b) Approvals of Applications. All requests or applications,
together with all supporting documentation, for governmental approvals or
permits which require discretionary action by discretionary bodies of Grantee
or on the part of another governmental agency, shall be submitted to and
coordinated and approved by Declarant prior to placing such approval on the
agenda of Grantee's discretionary body or filing with any other governmental
agency. Declarant shall have a period of forty five (45) days after receipt to
disapprove any requests or applications so submitted by Grantee, and in the
event of disapproval shall specify the reasons therefor. Failure to disapprove
within such forty five (45) day period and Declarant's continued failure to
approve or disapprove for fifteen (15) days after Grantee's written notice that
Declarant has failed to approve or disapprove 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 one business day
after such communication has been delivered to the addressee.
2.6 Bonds. Before the commencement of any of the work required
under this Article 2, Grantee shall furnish to Declarant true copies of any and
all labor and material bonds and faithful performance bonds, if any, required
of Grantee by any governmental agency concerning such work.
2.7 Transfers.
(a) Transfers Prohibited. For a period of not less than
twenty -five (25) years after the Effective Date, Grantee shall not sell, lease,
convey,, exchange, encumber or otherwise transfer the Land or any portion thereof
or facilities thereon, whether by agreement for sale or in any other manner
(herein collectively referred to as a "transfer ") without first giving Declarant
at least sixty (60) days' prior written notice of all terms and conditions of
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,
Grantee (i) 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) may consummate encumbrances on the
Land as security for an interim or permanent loan or loans or other form of
private or public financing (including without limitation certificates of
participation) 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 construction
of the Specific Facilities and Other Improvements or refinancing of a
construction loan in an amount not to exceed the amount outstanding under the
construction loan refinanced (collectively, "Permitted Transfers ").
Transfer Asrsemant
special Restrictlans
RxhLbLt D
6 may 1, 19%
0 0
2.8 Subordination. Subject to the following provisions and the
provisions of Section 5.7 hereof, Declarant will subordinate Declarant's right
of first refusal contained in Article 4, the mortgage lien contained in Section
5.1(d) and the option to repurchase contained in Section 5.3 (collectively, the
"Enforcement Rights ") to any encumbrance referred to in Section 2.7(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 encumbrances to which Declarant will continue to subordinate
this Declaration) provided that the principal amount of any such loan secured
by an encumbrance upon the Land and /or the improvements constructed hereon does
not, in combination with other encumbrances then placed on the Land and /or the
improvements constructed thereon, exceed at any time seventy -five percent (758)
of the fair market value of the Land and any improvements thereon, valued taking
into account the restrictions contained in this Declaration, and such loan is
at commercially reasonable interest rates and otherwise contains commercially
reasonable terms and conditions. Grantee will provide Declarant with appraisal
information from a reputable M.A.I. appraiser or from an institutional lender
reasonably satisfactory to Declarant to verify that the total loan -to -value rate
does not exceed seventy -five (758). No foreclosure, trustee's sale or deed in
lieu of foreclosure with respect to any such permitted encumbrance shall be
deemed an "assignment" for purposes of this Section. Within ten (10) working
days after receipt of the following items, provided the foregoing requirements
have been satisfied and provided there is no default under any provision of this
Declaration or under any other obligation between Declarant and Grantee relating
to the Land, Declarant shall execute, acknowledge and deliver to Grantee an
instrument in substantially the form attached hereto as EXHIBIT 3 effecting such
subordination:
(a) Cony of Loan Documents. A true and complete copy of
Grantee's executed mortgage or deed of trust and note secured thereby, and all
other instruments evidencing or securing the indebtedness evidenced by said
note. The mortgage or deed of trust encumbering the Land must not secure any
obligation.or indebtedness not related to improvement of the Land, and neither
the note nor the mortgage nor deed of trust shall contain any provision making
it a default thereunder if the obligor or any other party defaults in any
obligation not related to the acquisition or improvement of the Land;
(b) Title Report. A preliminary title report dated not
earlier than fifteen (15) days prior to submittal showing no title exceptions
other than those in existence at the time Declarant transferred the Land to
Grantee, other utility easements reasonably necessary to serve the Land, and
other matters approved by Declarant;
(c) Disbursement Instructions. A copy of the executed 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 a loan made for such purpose (in an amount not to exceed the amount
outstanding under the acquisition /construction loan refinanced); and
(d) Recuest for Notice of Default. 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.
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 agrees to pay its share of infrastructure
improvements made on, adjacent and off the situs of the Land. The
infrastructure improvements shall include the improvements required to complete
the items set forth in EXHIBIT 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
II
Tra afar A{raamaat
spacial RaatrictLe
BxhLbLt D
may 1, 1990
Boulevard. Prior to construction of road and other improvements for such
expansion, Grantee shall not use the area designated for any purpose other than
installation and maintenance of landscaping. Grantee agrees to install
landscaping within such area prior to completion of construction of the Specific
Facilities pursuant to plans and specifications approved by Declarant in
accordance with the standards and procedures set forth in Section 2.2 and to
maintain such area in a first class condition, order and repair at all times
prior to commencement of construction for expansion of MacArthur Boulevard.
ARTICLE 3. GENERAL RESTRICTIONS.
3.1 Unapproved Development or Use. Unless expressly approved by
Declarant, which approval may be withheld by Declarant in its sole discretion,
Grantee shall not permit the construction, maintenance, operation or use of any
structure or improvements on the Land not in full compliance with all
requirements of the law, this Declaration and any other covenants, conditions
and restrictions from time to time covering the Land.
3.2 General Maintenance. Prior to the completion of the Specific
Facilities, Grantee shall maintain the Land in a clean, sanitary, orderly and
attractive condition, free of weeds, debris and pests. Upon completion of the
Specific Facilities as contemplated herein, Grantee shall at all times maintain
the Specific Facilities, the Other Improvements and all other improvements from
time to time located on the Land, including without limitation the landscaped
areas, in first -class condition, order and repair. Grantee shall remove any
'.J 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 Benefited Property, if any, and (ii) the
statutes, ordinances or regulations of any governmental entity or agency having
jurisdiction thereover including Grantee itself and (b) are in harmony and
conformity with the existing or proposed improvements on or in the vicinity of
the Land and with Declarant's general aesthetic and architectural plans and
criteria for the Land, the Center and the general area in which the Land is
located. Except as provided in this Section, 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.
Tres far Agrees t
Speciai Reatrtatloaa
exhibit D
8 May 1, 1990
• •
3.6 Prohibited Operations and Uses. No trailer, camper, bus,
automobile, motorcycle, boat or other vehicle or equipment ( "vehicle") shall be
permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 a.m.
No use or operation shall be made, conducted or permitted on or 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:
(a) Any public or private nuisance;
(b) Any vibration, noise, sound or disturbance that is
objectionable due to intermittence, heat, frequency, shrillness or loudness;
(c) Any direct lighting which is not shielded and confined
within site boundaries;
(d) Any emission of odors, noxious, caustic or corrosive
matter, whether toxic or nontoxic;
(e) Any litter, dust, dirt or ash in excessive quantities;
(f) Any use of a structure of a temporary character, trailer,
tent, shack, garage, barn or other outbuilding except for such structures
maintained on the Land during a period permitted for construction or
reconstruction of improvements;
(g) Any service, maintenance, repair or washing of any
vehicle on the Land at any time except for emergency service necessary to move
a vehicle to a maintenance facility off of the Land;
(h) Any raising, breeding or keeping of animals, livestock
or poultry of any kind;
(i) Fuel storage of any type;
(j) Any accumulation of rubbish, trash or garbage. All
refuse containers, air conditioning devices, utility areas, storage areas and
machinery and equipment shall be prohibited upon the Land unless screened from
view from all adjoining lots and public and private streets; and
(k) Any exterior radio antenna, television antenna, "C.B."
antenna, "satellite dish," microwave transmitting or receiving antenna or other
antenna, transmitting or receiving device of any type unless it is screened from
view from all adjoining lots and public and private streets.
Any screen required under this Section shall consist of permanent
landscaping and /or improvements complying in all respects with the Newport
Center Theme Landscaping Design Criteria and approved in writing by Declarant.
The provisions of this Section entitled "Prohibited Operations and Uses" shall
not in any way supersede the other Restrictions.
3.7 No Subdivision. Grantee shall not effect any change or
amendment to the Final Map covering the Land or record any further parcel or
final map of the Land or any portion thereof or facilities thereon pursuant to
the California Subdivision Map Act or any similar law and /or local ordinances
adopted pursuant thereto, or file any tentative maps or applications with
respect thereto with any governmental agency, nor shall Grantee file or record
a condominium plan covering the Land or any portion thereof or any improvements
thereon or any applications with respect thereto nor shall Grantee convey a
portion consisting of less than all of the Land, unless expressly approved by
Declarant which approval may be withheld by Declarant in its sole discretion.
3.8 Zonin¢. Grantee shall not use or develop or attempt to use or
develop the Land or any portion thereof for any purpose other than those
purposes expressly allowed under the zoning ordinance or ordinances of the
0
Tra for A{rnw nt
Sp*cSQ RextrLctLc"
Exhibit D
Kay 1, 1290
0
governmental entity having zoning jurisdiction over the Land. Additionally,
Grantee shall not at any time change or attempt any change in zoning, or obtain
or apply for a conditional use permit, zoning variance or exception or other
similar approval with respect to the use or development of the Land or any
portion thereof not expressly allowed under such existing zoning ordinance,
unless expressly approved by Declarant, which approval may be withheld in its
sole discretion. Notwithstanding the foregoing, Declarant shall not
unreasonably withhold its consent to Grantee's application for such conditional
use permit as may be required for development of the Land with the Specific
Facilities. Grantee shall obtain Declarant's consent prior to placing such
application on the agenda of Grantee's discretionary 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 and
its and their respective successors and assigns (collectively, the
" Indemnitees") shall not be liable for any loss, damage, injury or claim of any
kind or character to any person or property arising from or caused by (a) the
improvement, development, maintenance, use, lease or other conveyance of the
Land or improvements thereon or any portion thereof or interest therein,
including, without limitation, any loss, damage, injury or claim arising from
or caused by or alleged to arise from or be caused by (i) any use of the Land
or any part thereof, (ii) any defect in the design, construction of, 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
Grantee's performance under this Declaration, or any other agreement with
Declarant relating to the Land, or (b) the negligence or willful misconduct of
Grantee or its employees or agents in the development, construction, grading or
other work performed off the Land by Grantee pursuant to this Declaration, or
(c) the breach by Grantee of any of its obligations under this Declaration.
Furthermore, as a material part of the consideration of this Declaration,
Grantee hereby waives on its behalf all claims and demands against Declarant for
any such loss, damage, or injury of Grantee, and agrees to indemnify, defend and
hold harmless Declarant and its property, and the other Indemnitees from all
loss, liability, damage, costs and expenses (including attorneys' fees) arising
from or related to any such loss, damage, injury or claim, whether incurred or
made by Grantee or any other person(s). The foregoing waiver and indemnity
shall apply to a claim or action brought by a private party or by a governmental
agency or entity under any statute or common law now or hereinafter in effect
and is intended to apply with respect to loss, damage, injury or claim arising
before or after the lease, sale or other conveyance of any portion or all of the
Land or any improvements thereon. With respect to design, construction methods,
materials, locations and other matters for which Declarant has given or will
give its approval, recommendation or other direction, the foregoing waiver,
indemnity and agreement shall apply irrespective of Declarant's approval,
recommendation or other direction. Notwithstanding anything to the contrary
above, nothing contained in this Section shall operate to relieve Declarant or
the other Indemnitees from any loss, damage, injury or claim ultimately
established by a court of competent jurisdiction to have been caused by the sole
negligence or willful misconduct of Declarant or the other Indemnitees.
Grantee's covenants in this Section arising from or related to acts or
occurrences during the time of Grantee's ownership shall survive the lease or
other conveyance of all or any part of the Land or improvements thereon and
shall be binding on said Grantee (as well as its successors to the Land) until
such time as action against the Indemnitees is absolutely barred by an
applicable statute of limitations.
Transfer Agreement
Sp"Lal EaatrLCLLO
1D Exhibit D
May 1, 1990
ARTICLE 4. DECIARANT'S RIGHT OF FIRST REFUSAL. Except with regard to
"Permitted Transfers" described in the Section above entitled 'Transfers ", if,
at any time prior to the twenty fifth (25th) anniversary of the Effective Date,
Grantee shall determine to transfer all or any part of the Land or the
improvements thereon or any interest therein ( "Interest "), Grantee shall notify
Declarant of the price and the terms on which Grantee will be willing to
transfer. If Declarant, within sixty (60) days after receipt of Grantee's
notice, indicates in writing its agreement to purchase said Interest for the
price and on the terms stated in Grantee's notice, then Grantee shall transfer
and convey the Interest, to Declarant for the price and on the terms stated in
such notice. If Declarant does not indicate its agreement within such sixty
(60) day period, then Grantee thereafter shall have the right to transfer and
convey the Interest to a third party, but only for a price not less than the
price offered to Declarant and on terms not more favorable than those stated in
the notice. If Grantee does not so transfer and convey the Interest within one
hundred eighty (180) days after Grantee's notice, then any further transactions
(including a transaction on the same price and terms previously submitted to
Declarant) shall be deemed a new determination by Grantee to transfer and convey
said Interest, and the provisions of this Article shall again be applicable.
ARTICLE 5. REMEDIES.
5.1 Default and General Remedies. In the event of any breach,
violation or failure to perform or satisfy any of the Restrictions which has
not been cured within the applicable cure 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
law or equity, whether or not set forth herein. Unless a cure period is.
otherwise specifically designated, such cure period shall commence when written
notice is given to Grantee of a violation hereunder and shall end ten (10) days
thereafter in the case of a monetary default and thirty (30) days thereafter in
the case of a nonmonetary default; provided, however, that if a nonmonetary
default is not reasonably susceptible to cure promptly within the thirty (30)
day period, then Grantee shall have a reasonable time to cure the same so long
as Grantee has commenced such cure promptly within the thirty (30) day period
and thereafter diligently prosecutes the cure to completion. To the maximum
extent allowable by law, all remedies provided herein or by law or equity shall
be cumulative and not exclusive; provided, however, that except as provided in
the following sentence in the event Declarant elects to exercise any remedy
provided for in Section 5.3 hereof based upon a particular violation of the
Restrictions, such remedy shall be Declarant's sole and exclusive remedy for
such violation of the Restrictions. Notwithstanding the foregoing, Declarant's
remedies for a violation or breach of Section 3.10 (Indemnity) shall be
cumulative with and in addition to its remedies for other violations or breaches
under this Declaration.
- (a) Damages. Declarant may bring a suit for damages for any
compensable breach of or noncompliance with any of the Restrictions, or
declaratory relief to determine the enforceability of any of the Restrictions.
(b) Equity. It is recognized that a particular or ongoing
violation by Grantee of one or more of the foregoing Restrictions may cause
Declarant to suffer material injury or damage not compensable in money
(including, but not limited to, irreparable effects on the type and quality of
development on and use of the Benefited Property or portions thereof and /or
frustration of Declarant's purpose for conveyance of the Land to Grantee), and
that Declarant shall be entitled to bring an action in equity or otherwise for
specific performance to enforce compliance with the Restrictions or an
injunction to enjoin the continuance of any such breach or violation thereof,
whether or not Declarant exercises any other remedy set forth herein.
(c) Mortgage Lien. All costs, expenses, interest, fees and
other sums required to be paid by Grantee to Declarant hereunder, including,
but not limited to any sums with respect to costs of regional development or
undergrounding of utilities (Sections 2.9 and 2.10) which may be or become
payable under this Declaration shall be secured by this Declaration, and Grantee
hereby mortgages the Land and all improvements thereon to Declarant with power
of sale in accordance with Sections 2920, e1 M. of the California Civil Code
Transfer A&"e nt
Special Aestrietions
Eahiblt D
11
may 1, 1990
0 •
and all other applicable statutes, for the purpose of securing all said sums.
Foreclosure of such mortgage lien, by judicial foreclosure or under power of
sale, to recover any such amount owed shall not extinguish the lien or any
- provision of this Declaration, but shall only extinguish the mortgage lien
created herein as it applies to or secures amounts due hereunder as of the date
of foreclosure and the mortgage lien created herein shall continue to exist for
the purpose of securing any further amounts required to be paid hereunder by
Grantee's successor (whether a successor by any such foreclosure sale or
otherwise) to Declarant under this Declaration. Foreclosure of such mortgage
lien shall not extinguish a lien which arises from a violation of any provision
of this Declaration after such foreclosure even if such violation is a
continuing violation which also existed prior to the foreclosure.
(i) Power of Sale. In the event Grantee fails to pay
all or any portion of the indebtedness secured hereby within the applicable cure
period therefor, then Declarant may immediately cause a written notice of
default and election to sell the Land (herein, "Notice of Default ") to be
prepared and filed for record in the Office of the Recorder of Orange County.
After three months or such shorter time as may be allowed by law shall have
elapsed from the recordation of such Notice of Default, and after a notice of
sale has been given to the extent required by the then applicable law,
Declarant, without further legal action or demand on Grantee, may cause the Land
to be sold at such time and place as may be fixed in said notice of sale or at
such time and place to which the sale may be postponed as hereinafter provided
without additional notice, either as a whole or in separate parcels, and in such
order as Declarant alone may determine, at public auction to the highest bidder
for cash in lawful money of the United States at the time of sale, or upon such
other terms as Declarant may consider advisable. Grantee shall have no right
to direct or determine whether the Land shall be sold as a whole or in separate
parcels, or the order of sale of separate parcels or the portion of the Land to
be sold if only a portion is sold. Declarant may postpone the sale of the Land
by public announcement thereof at the time and place of sale and from time to
time thereafter by public announcement at the time and place of the preceding
postponement. In conducting or postponing any such sale, Declarant may act
through its agents, officers or employees or any other person designated by
Declarant, whether or not such party shall be a licensed auctioneer. At such
sale, Declarant shall cause to be delivered to the buyer or buyers one or more
duly executed deeds conveying the property so sold, subject to all the
provisions of this Declaration, but without any covenant or warranty, either
express or implied. The recitals in such deed or deeds with regard to any
matters of fact shall be conclusive proof of the truthfulness thereof against
the buyer at such sale, its successors and assigns, and all other persons. Any
person, including Declarant, may bid in or purchase at such sale. Grantee
hereby agrees to surrender, immediately and without demand, possession of said
property to the Grantee at such sale. No such sale shall release or extinguish
any rights, remedies or provisions contained in this Declaration in the event
of any further violation of any Restriction set forth herein.
(ii) Application of Proceeds. Declarant shall apply
the proceeds of such sale in the following manner and order:
[A] Expenses of such sale and all costs, fees,
charges and expenses of Declarant, including costs of evidence of title and
reasonable attorneys' fees;
[B] All sums secured hereby; and
[C] The remainder, if any, to the person or
persons legally entitled thereto.
(iii) Foreclosure by Court Action. In addition to the
foregoing, Declarant may foreclose the lien created hereby by court action in
the manner provided by the laws then applicable to this indenture, in which case
Grantee agrees to pay all costs and expenses .thereof, including reasonable
attorneys' fees as the court may determine.
(iv) Waiver of Statute of Limitations. To the maximum
extent permitted by law, Grantee expressly waives the benefit of and the right
Tranafer sireenent
special Rescrletla s
sahibit D
12 May 1, 1990
._
to plead and in any way take advantage of any and all statutes of limitation,
both as to the indebtedness secured hereby or any other provision hereof, and
Grantee will upon request of Declarant execute and acknowledge (if necessary)
further written extensions or waivers of the applicable statutes of limitations
with respect to payment of any indebtedness secured hereby and interest thereon.
(v) Notice of Sale. Grantee hereby requests that copies
of the Notice of Default and any notice of sale hereunder be mailed to it at
the address set forth below in Section 6.7. Grantee agrees that any such notice
or demand shall be deemed fully given to Grantee if mailed to it by certified
or registered mail at such address, or any more recent address delivered to
Declarant as provided below.
5.2 Inspection. Declarant or its authorized representatives may
from time to time, at any reasonable hour, enter upon and inspect the Land, site
or any portion thereof or improvements thereon to ascertain compliance with the
Restrictions, but without obligation to do so or liability therefor.
5.3 Option to Repurchase the Land. Upon any proposed, attempted
or actual "transfer" in violation of the provisions of Section 2.7 above and,
in addition to the foregoing remedies described in Section 5.1, upon any
violation of the Restrictions itemized in Sections 2.1(a) ( "Improvement and
Continued Use ") or 2.1(c) (Commencement and Completion), Declarant, in its sole
option and discretion, shall be entitled to repurchase the Land as provided
below.
(a) Grant of Option. Grantee hereby grants to Declarant an
exclusive option to purchase the Land subject only to:
(i) Current taxes not yet delinquent;
(ii) Matters 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;
(iii) Matters affecting title which are created, made,
assumed, consented to or requested by Declarant, its successors or assigns,
excluding any mortgage, deed of trust or similar instrument to which Declarant
has subordinated the Enforcement Rights pursuant to Section 2.8 above;
(iv) Matters shown as printed exceptions in the
standard form California Land Title Association owner's policy of title
insurance.
(v) Noninterfering easements for utilities used in
connection with the improvements constructed on the Land.
(b) Exercise of Repurchase Option. Declarant may exercise
its option to repurchase the Land by giving written notice to Grantee of
Declarant's election to repurchase within (1) sixty (60) days after receipt of
Grantee's notice of proposed "transfer" as provided in Section 2.7 (Transfers)
above, (ii) within ninety (90) days after Declarant receives actual notice of
any transfer or attempted transfer in violation of any provision in Section 2.7,
(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(c) above. For purposes of this Section 5.3,
Declarant's actual notice shall mean notice to the person to whom notice may be
addressed under Section 6.7 of this Declaration, and no other persons. No
failure of Declarant to exercise its option upon Grantee's failure to commence
construction as provided above shall constitute a waiver of its right to
exercise the option upon Grantee's failure to complete construction by the
appropriate date, as described above. No failure of Declarant to exercise its
option in the event of any proposed, attempted or actual "transfer" (whether
approved by Declarant or not) in violation of Section 2.7 above shall constitute
Tra fer Iµr*e at
SpecLal Restrictions
13 Exhlbtt D
may 1, 1990
0 0
a waiver of Declarant's rights to exercise the option upon any such transfer
subject to Section 2.7 which might be proposed, attempted or consummated at a
later time. No failure of Declarant to deliver a notice of violation of the
Restrictions contained in Section 2.1(a) shall constitute a waiver of
Declarant's rights to deliver such notice at any time and exercise the option.
Rescission of any notice of violation of the Restrictions itemized in Section
2.1(a) prior to the option becoming exercisable, or if such violation is cured,
after the option becoming exercisable shall not constitute waiver of Declarant's
right to later notify Grantee of a new violation and exercise the option. Any
rescission of notice of exercise of this option shall not constitute waiver of
Declarant's right to exercise the option again if a later event causes the
option to become exercisable.
(c) Expiration and Ouitclaim. 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:
(i) The price attributable to the Land equal to the
n 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 use restricted to
the use for which Declarant notifies Grantee at the time of exercise of the
option that it intends to use the Land. Declarant shall notify Grantee that
it intends to use the Land either for commercial office or retail use at the
time of delivery of the notice of exercise or any time thereafter (Failure of
Declarant to specify a use in conjunction with delivery of a notice of exercise
of the option shall not invalidate or otherwise affect exercise of the option.).
The CPI adjustment shall be the percentage increase or decrease in the CPI
measured from the month which is two months prior to the Effective Date to the
month which is two months before the date of delivery of the notice of exercise.
The CPI shall be the Consumer Price Index for All Urban Consumers Los Angeles -
Anaheim- Riverside Metropolitan Area (all items) compiled by the United States
Department of Labor, Bureau of Labor Statistics, based upon 1982 -84 as 100;
provided, however, that if the CPI is modified or changed, then the CPI shall
be a converted or substituted index as determined by Declarant. Plus
(ii) The fair market value of the Useable Improvements,
if any, on the Land at the time the Option is exercised. The "Useable
Improvements" shall be limited to those interior areas of buildings which can
be used or converted for use as interior commercial or retail rentable space in
accordance with the use which Declarant intends to put the Useable Improvements
as designated by Declarant. Fair market value of such Useable Improvements
shall be determined using an income method of appraisal based upon comparable
rents determined on a useable square foot basis for the square footage of the
Useable Improvements offset by the cost of any improvements required to convert
the use of the building to the use which Declarant notifies Grantee that it
intends to put the Usable Improvements. Less
(iii) 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.
(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
Transfer A&"e Ut
spealal Eestsieticm
Exhibit D
14 n.Y 1, 1990
exceptions shown thereon created on or after the Effective Date hereof, and
disapproved by written notice to Grantee through escrow, shall be removed by
Grantee at its sole expense at or prior to closing of escrow. In the event that
the Land or any portion thereof is encumbered by a mortgage or deed of trust,
Declarant may unilaterally instruct the escrow agent to satisfy the indebtedness
secured thereby out of the proceeds payable to Grantee through the foregoing
escrow, Any additional amount necessary to satisfy such indebtedness shall be
paid by Grantee. Grantee and Declarant shall each pay one -half of the escrow
fees. Grantee shall pay for documentary tax stamps, for recording the deed, and
for a California Land Title Association standard form owner's coverage policy
of title insurance in the amount of the purchase price showing title to the Land
vested in Declarant or its assigns free and clear of all liens, encumbrances or
other title exceptions other than those set forth in this Declaration. Any
other costs or expense shall be allocated between the parties in the manner
customary in Orange County, California.
(f) Irrevocabilitv. The option created hereby shall be
irrevocable by Grantee, and shall be binding upon the representatives,
successors and assigns of Grantee.
(g) Warranties. Plans and Specifications. In the event
Declarant reacquires all or any portion of the Land, the Specific Facilities or
the Other Improvements under this Section 5.3, Grantee shall assign and transfer
to Declarant for no additional consideration, all warranties, plans and
specifications relating to the Usable Improvements and any other improvements
transferred by Grantee to Declarant hereunder.
5.4 Arbitration Procedure. If Declarant and Grantee are not able
to agree to the fair market value of the Land or the Useable Improvements within
thirty (30) days after the date Declarant gives Grantee notice of exercise of
the option, then the following arbitration procedure shall apply:
[A] Declarant shall within an additional thirty
(30) days, at Declarant's cost, deliver to Grantee a written appraisal of the
applicable highest fair market value with which Declarant agrees, prepared by
an independent qualified appraiser ( "Declarant's Appraisal "). The term
"independent qualified appraiser" as used in this Section shall mean a
professional independent appraiser who is a Member of the American Institute of
Real Estate Appraisers (R.M. or M.A.I.), the Society of Real Estate Appraisers
(S.R.A., S.R.P.A., or S.R.E.A.), the American Society of Appraisers (member or
senior member A.S.A.), or another recognized association of appraisers, or a
similar association of real estate appraisers that has adopted rules and
regulations governing the professional conduct and ethics of its members
requiring independent 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's
Appraisal, Grantee shall notify Declarant in writing of such disagreement in
writing within ten (10) days after receipt of Declarant's Appraisal. Within
thirty (30) days of such notice, Grantee shall at its cost deliver to Declarant
a written appraisal of the applicable highest market value with which Grantee
agrees, prepared by an independent qualified appraiser ( "Grantee's Appraisal ").
If Grantee fails to deliver Grantee's Appraisal within the time provided, or if
Grantee's Appraisal of fair market value is lower than or equal to that
contained in Declarant's Appraisal, then Declarant's Appraisal shall constitute
the final and binding determination of the applicable fair market value.
[C] If Grantee's Appraisal is delivered to
Declarant within the time provided and is higher, than Declarant's Appraisal,
and if Declarant and Grantee cannot then agree as to the applicable highest fair
market value within ten (10) days after delivery of Grantee's Appraisal to
Declarant, then Declarant and Grantee shall within ten (10) days thereafter
mutually agree on a third independent qualified appraiser acceptable to them to
make an independent determination of the applicable highest fair market value
(the "Final Appraisal "). Such Final Appraisal shall be delivered to Declarant
and Grantee within thirty (30) days of the selection of the third appraiser.
If Declarant and Grantee do not agree on a third independent qualified appraiser
Trsasfer ASree t
Special ReatrictLoce
Exhibit D
15 May 1, 1990
0 0
acceptable to them as specified above, then such third appraiser shall be
appointed in accordance with the provisions of California Code of Civil
Procedure Section 1281.6, or any successor statute, and in such event the
independent determination of the highest fair market value made by the third
appraiser so appointed shall be the "Final Appraisal." If the third appraiser
must be appointed pursuant to the provisions of the California Code of Civil
Procedure Section 1281.6, or any successor statute, Declarant shall file a
petition to appoint the third appraiser with the Superior Court of Orange
County, California ( "Court "), and shall set the hearing on the petition on the
earliest date permitted by the Court's calendar and by the applicable notice
period required by law. Declarant and Grantee shall share equally the cost of
the Final Appraisal. If the Final Appraisal states a fair market value between
that of Declarant's Appraisal and Grantee's Appraisal, the Final Appraisal shall
be the final and binding determination of the applicable market value. If the
fair market value established in the Final Appraisal is higher than (1) the fair
market value established in Grantee's Appraisal or is lower than (2) the fair
market value established in Declarant's Appraisal, or equal to either, then the
final determination of the applicable fair market value shall be (1) or (2)
depending upon which one is equal or closer to the fair market value established
in the Final Appraisal.
[D] The procedure set forth above for determining
the applicable market value shall be the exclusive procedure therefor and shall
be final, binding and nonappealable unless expressly waived by both parties in
writing. It is the responsibility of Grantee to ensure that this procedure for
determining highest fair market value is instituted in sufficient time to
satisfy any commitments, agreements or needs of Grantee.
5.5 Waiver. No Waiver by Declarant of a breach of any of the
Restrictions by Grantee and no delay or failure to enforce any of the
Restrictions shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other of the Restrictions. No waiver of
any breach or default of Grantee hereunder shall be implied from any omission
by Declarant to take any action on account of such 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 Declarant to or of any act by Grantee requiring Declarant's consent
or approval shall not be deemed to waive or render unnecessary Declarant's
consent or approval to or of any subsequent similar acts by Grantee.
5.6 Costs of Enforcement. In the event any legal or equitable
action or proceeding shall be instituted between Declarant and Grantee to
enforce any provision of this Declaration, the party prevailing in such action
shall be entitled to recover from the losing party all of its costs, including
court costs and reasonable attorneys' fees.
5.7 Rights of renders. No breach or violation of the Restrictions
shall defeat or render invalid the lien of any mortgage, deed of trust or
similar instrument securing a loan made in good faith and for value with respect
to the development or permanent financing of the Land or any portion thereof;
provided, however, that this Declaration and all provisions hereof shall be
binding upon and effective against any subsequent owner or other occupant of the
Land or portion thereof whose title is acquired by foreclosure, trustee's sale
or deed in lieu of foreclosure but (a) such subsequent owner shall have a
reasonable time after acquiring title in which to cure any violations or correct
and change any facts giving rise to Declarant's rights under this Declaration
occurring prior to such transfer of title and which are reasonably capable of
being cured or changed provided, that such subsequent owner diligently acts to
effect such cure or change (and in the event of such diligent and timely cure,
such subsequent owner shall have no further liability in connection with such
prior violation or the continued existence of such violation until such cure is
completed), and (b) Sections 5.1(a) (Damages), 5.1(c) (Abatement) and 5.3
(Option to Repurchase the Land) shall not be applicable as to such subsequent
owner with regard to any noncurable default occurring prior to the time such
subsequent owner acquired title. Notwithstanding the foregoing, any such
subsequent owner shall be required to use the Land in accordance with the
restrictions set forth in Section 2.1(a) and diligently complete construction
of any Specific Facilities and Other Improvements which are incomplete on the
Trans fer Agree t
apaclal Raatrlatlo
16 EXhLblt D
May 1, 1990
• •
date such subsequent owner acquires title, all subject to the requirements
contained in this Declaration, except the time periods referred to in Section
2.1(c) shall be reasonably extended. For purposes of this Section, the
construction or installation of any improvement in violation of the requirements
of this Declaration shall be deemed "curable" so long as reconstruction, repair
or replacement in a manner consistent with the requirements of this Declaration
is physically and legally possible (without respect to cost).
5.8 Advances, Declarant shall be entitled to advance any sums
Declarant in its sole discretion deems necessary to protect and preserve the
security for its rights and interest under this Declaration (including but not
limited to sums for completion of construction of the Specific Facilities or
any offsite improvements, any property taxes or assessments, insurance premiums,
or amounts secured or represented by encumbrances or liens or other charges on
any portion of the Land which appear to be prior to Declarant's rights and
interest under this Declaration), all of which advances together with interest
at the maximum contract rate then permitted by law shall be paid to Declarant
upon demand and shall be secured by the lien of this Declaration described in
subsection 5.1(d) above.
ARTICLE 6. GENERAL PROVISIONS.
6.1 Unavoidable Dew. Any prevention, delay or stoppage in the
work of building the Specific Facilities, the Other Improvements and any other
related improvements or other work as provided for in this Declaration caused
by acts of God, war, inability to obtain labor or materials of 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, however, that nothing in this Section shall excuse the prompt payment
of any and all amounts due from Grantee to Declarant as required herein or the
performance of any act rendered difficult because of the financial condition of
Grantee 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
development of the Land, or a portion thereof, constitute an unavoidable delay
pursuant to this Section. Furthermore, in no event shall any extension of any
period of time be deemed to have occurred unless Grantee shall have given
written notice to Declarant within fifteen (15) days following any such delay,
setting forth the facts giving rise to such extension; and provided further that
the period of time for exercise of Declarant's rights shall be commensurately
extended.
6.2 Continuous Ofterations. Grantee shall proceed continuously and
diligently in accordance with the terms and conditions of this Declaration. In
the event Grantee does not proceed continuously and diligently, such failure to
so proceed may, at the option of Declarant, be considered an event of default
herein, except as such failure is excused by reason of any unavoidable delay as
set forth in the Section hereof entitled "Unavoidable Delay."
6.3 Covenants to Run With the Land: Term.
(a) Covenants to Run With the Land. The 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 Benefited Property and are intended and
shall be construed as covenants and conditions running with and binding the Land
and equitable servitudes upon the Land and every part thereof. Furthermore, all
and each of the Restrictions shall be binding upon and burden all persons having
or acquiring any right, title or interest In the Land, or any part thereof, and
their successors and assigns, and shall inure to the benefit of the Benefited
Property and the owners of the Benefited Property, their successors and assigns,
and shall be enforceable by Declarant and its successors and assigns, all upon
the terms, provisions and conditions set forth herein.
(b) Term. All of the terms and provisions set forth in this
Declaration shall continue in full force and effect in perpetuity, except that
Trwfer A{reemeot
Special RestrLat Lom
Sxhlb%t D
17 Nay 1, 1990
Declarant's "Enforcement Rights (as described in Section 2.8 above) shall
terminate twenty -five (25) years from the Effective Date hereof.
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
Benefited Property, so long as such person or entity in writing agrees to assume
the duties of Declarant pertaining to the particular rights and powers assigned.
Upon the recordation of such writing accepting such assignment and assuming such
duties, such person or entity shall, to the extent of such assignment, have the
same rights and powers and be subject to the same obligations and duties as are
given to and assumed by Declarant herein. Without limiting the generality of
the foregoing, Declarant may make such assignment as to the entire Land or to
any portion thereof. Unless specifically assigned in writing as stated in this
paragraph, Declarant alone shall have the right to enforce the Restrictions and
the other provisions of this Declaration or to recover damages or other amounts
for violation of the Restrictions or breach of Grantee's duties hereunder.
6.5 Amendments.. Except as provided in this Declaration concerning
(a) substitution of other real property as the Benefited.Property, (b) release
of any portion or all of the Land from this Declaration, (c) reacquisition of
the Land by Declarant and (d) assignment by Declarant of its rights under this
Declaration, this Declaration may be terminated, extended or amended only by a
writing executed by Declarant and Grantee and recorded against the Land.
6.6 Release.
(a) Release by Declarant. Declarant may release any portion
of the Land from this Declaration at any time and for any reason without the
approval of Grantee. Declarant shall also, upon written request from Grantee,
release any portion of the Land dedicated or otherwise conveyed to and accepted
by any other public entity or public utility.
(b) Not Applicable to Declarant. Notwithstanding anything
herein contained to the contrary, if Declarant reacquires title to the Land or
any portion thereof at any time after the date hereof and record(s) a notice of
termination of these Restrictions in the Office of the County Recorder of Orange
County, California, these Restrictions shall cease and terminate and be of no
further force or effect as to Declarant and such property, effective as of the
date of such recordation.
6.7 Notice. All notices, consents, requests, demands and other
communications provided for herein shall be in writing and shall be deemed to
have been duly given if and when personally served or forty eight (48) hours
after being sent by United States registered mail, return receipt requested,
postage prepared, to the other party at the following respective addresses:
DECLARANT: THE IRVINE COMPANY
�. c/o IRVINE LAND MANAGEMENT COMPANY
Post Office Box I
Newport Beach, California 92658 -8904
Attention: President /ILMC
GRANTEE: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92659 -1768
or at such other address as Declarant or Grantee may designate to the other in
writing in accordance with the provision of this Section.
6.8 Governing 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 any court of competent jurisdiction to be
Transfer Aare Qt
Syetial Restrtotto
Exhibit D
is May 1, 2990
0 0
illegal, null or void or against any public policy, the remaining portions of
this Declaration shall not be affected thereby and shall remain in force and
effect to the full extent permitted by law.
6.10 Captions. The captions used herein are for convenience only
and are not a part of this Declaration and do not in any way limit or amplify
the terms and provisions hereof.
6.11 Entire Agreement. This Declaration, including Exhibits
attached hereto which are incorporated herein by this reference, constitutes the
entire agreement between the parties hereto pertaining to the subject matter
hereof and all prior and contemporaneous agreements, representations,
negotiations and understandings of the parties hereto, oral or written, are
hereby superseded and merged herein. The forgoing sentence shall in no way
affect the validity of the Agreement pursuant to which Grantee acquired the Land
or any instruments executed in connection therewith.
6.12 Gender and Number. In this Declaration (unless the context .
requires otherwise), the masculine, feminine and neuter genders and the singular
and the plural include one another.
6.13 Time of the Essence. Time is of the essence of each provision
of this Declaration in which time is an element.
IN WITNESS WHEREOF, the undersigned have executed this Declaration
as of the date written below.
"DECLARANT" "GRANTEE"
THE IRVINE COMPANY, CITY OF NEWPORT BEACH,
a Michigan corporation a California municipal corporation
By: By:
Its: Mayor
Its:
By: ATTEST:
Its: By:
Its: City Clerk
APPROVAL
By:
Its: City Manager
APPROVED AS TO FORM:
By:
Its: City Attorney
Yraxufer Mrus t
Special RestrLetLxms
Exhibit D
adcn lr.2m 19 may 1, 19"
• 0
STATE OF CALIFORNIA )
).ss
COUNTY OF )
On this day of , in the year 19_, before me, the undersigned, a
Notary Public in and for said State, personally appeared
and , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the persons who
executed the within instrument as and
respectively, on behalf of THE IRVINE COMPANY and acknowledged to me that said
corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA )
as.
COUNTS[ OF )
On , 19_, before me, the undersigned, a Notary Public in and
for said State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as Mayor, on behalf of CITY
OF NEWPORT BEACH, which executed the within instrument pursuant to governing law
and a resolution of its board of directors and acknowledge to me that the CITY
OF NEWPORT BEACH executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
Tranafar Area at
Spacial Raatrictic"
Exhibit D
20 may 1, 1990