HomeMy WebLinkAboutC-2823(D) - Declaration of Special Land Use Restrictions, Right of First Refusal, Mortage Lien and Option to Repurchase (Development Agreement No. 4)92- 304757 ®" Add.
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OWEAPATION OF SPECIAL LAND USE RESTRICTIONS. RIGHT
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Specs �'a this 11= for P.ecer? =r's
OWEAPATION OF SPECIAL LAND USE RESTRICTIONS. RIGHT
OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE
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TABLE OF CONTENTS
DECLARATION OF SPECIAL LAND 1199 RESTRICTIONS,
RIGHT OF FIRST REFUSAL, HORIMCE LIEN AND
DMON TO REPURCHASE
ARTICLE 1.
GENERAL PROVISIONS. . . . . . . . . .
1
1.1
Granter's Reprssantatiom and Warranties. . . . . . .
1
1.2
Statement of Dselarant's General Purposes. . . . . . . .
2
1.3
Definitions.
2
(a) 'Bonmfitted Property . . . . . . . . . . . . . .
2
(b) 'Center" . . . . . . . . . . . . . . . . . . .
2
(c) •Deelarani• . . . . . . . . . . . . . .
2
(d) 'E£fsctlw Date' . . . . . . . . . . . . . . . . .
2
(s) 'Final Map• . . . . . . . . . . . . . . . . . . .
2
(f) 'Granter• . . . . . . . . . . . .
2
(g) The -Gross Floor Area• . . . . . . . . . . . . . .
3
ARTICLE 2.
SPECIFIC RESTRICTIONS . . . . . . . . . . . . . . . . . . .
3
2.1
Specific Facilities. . . . . . . . . . . .
3
(a) Improvement aM Continued Wee. . . . . . . . . . .
3
(b) Construction. .
3
(e) Coaglncce ut and Complatian.
3
(d) Graving. . . . . . . . . .
4
(e) Utilities, Streets and Public Imprevemsnts. . . .
4
(f) Landscaping. . . . . . . . . . . . . .
4
(9) Alterations AM Additions . . . . . . . . . . .
4
2.2
beclarant's Approvals. . . . . . . . . . . . . . . .
4
(a) Approvals Required. . . . . . . . . . . . . . .
4
(b) Tim for Approvals . . . . . . . . . . . . . . . .
4
(c) Am Built Plane . . . . . . . . . . . . . . . . . .
5
..
2.3
Grantee's Cost. . . . . . . . . . . . . .
5
2:4,,Fulfillwnc
of Map Conditions . . . . . . .. . . . . .
5
2.5
Compliance. VLAh_ Law . . .... . . . . . . . . . . .
5
(a) Grantee to damply. -. . . . . . . .
5
(b) Approvals of Applications . . . . . . . . . . . . .
5
2.6
Bonds. . . . . . . . . . . . . . . . . . . . . .
6
2.7
Transfers. . . . . . . . . . . . . .
6
(a) Transfers Prohibited . . . . . . . . . . . . .
6
(b) Permitted Transform.
6
2.8
Suberdinstion or Cement to Transfer for Public
Financing. . . . . . . . . . . . . .
6
(a) Copy of Lean Documents . . . . . . . . . . . . . .
7
(b) Title Report. . . . . . . . . . . . . .
7
(e) Disbursement Instruction,. . . . . . . .
7
(d) Request for Moties of Default. . . . . . . . . . .
7
2.9
Coats of Regfonsl Dewlopwnt. . . . . . . . .
7
2.10
MacArthur BomlWard Dedication and Maintemnee. . . . .
7
ARTICLE 3.
GENERAL RESTRICTIONS. . . . . . . . . . . . ... . . .
8
3.1
Unspproved Developwat or Use. . . . . . . . . . . .
8
3.2
General Maintenance. . . . . . . . . . . . . . . .
B
3.3
Restoration . . . . . . . . . . . . . . . . . .
B
3.4
Drainage . . . . . . . . . . . . . . . . . . . . . .
R
3.5
Signs . . . . . . . . . . .
B
3.6
Prohibited Operations and Uses. . . . . . . . . . . . .
B
3.7
No Subdivlsion . . . . . . . . . . . . .
9
3.6
zoning. . . . . . ... . . . . . . . . . . . . . . . .
9
3.9
Indemnity . . . . . . . . . . . . . . . . . . . .
10
ARTICLE 4.
DECLARANF'S RIGHT OF FIRST REFUSAL . . . . . . . . . . . . .
10
ARTICLE S.
REMEDIES. . . . . . . . . . . . . .
11
5.1
Default and General Remediem . . . . . . . . . . . . . .
11
(e) Damages . . . . . . . . . . . . . . . . . . . . . .
11
(b) Equity . . . . . . . . . . . . . . . . . . . . . .
11
5.2 -Inspection.
. . . . . . . . . . . . .
11
5.3
Option to Repurchase the Land . . . . . . . . . . . . .
11
(a) Grant of Option.
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(b) Exercise of Repurchase Option. . . . . . . . . . .
12
(c) Expiration and Quitclaim. . . . . . . . . . . . .
12
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(d) Repurchase Price . . . . . . . . . . . . . . . . .
12
(e) Repurchase 6scr Terms . . . . . . . . . . . . . .
13
(f) Irrevocability. . . . . . . . .
13
And Warranties. Plans s specification. . . . . . .
13
5.4 Arbitration Procedure . . . . . . . . . . . . . . . . . .
14
5.5 Waiver. . . . . . . . . . . . . . . . . . . . . .
14
5.6 Costs of Enforcement . . . . . . . . . . . . . . . . . .
15
5.7 )tights of Landers . . . . . . . . . . . . . . . . . . . .
13
5.8 Advances . . . . . . . . . . . . . . . . . . . . . . . .
15
ARTICLE 6. CENRAl PROVISIONS . . . . . . . . . . . . . . . . . . . . .
15
6.1 Unavoidable Delay . . . . . . . . . . . . . . . .
33
6.2 Continuous Operations . . . . . . . . . . . .
16
6.3 Covawncs to Run With the Land: Teri. . . . . . . . . .
16
(a) Covenants to Run With the IaM.
16
(b) Tort. . . . . . . . . .
16
6.4 Assignment by Declarant. . . . . . . . . . . . . . . . .
16
6.5 Aaeoments . . . . . . . . . . . . . . . . . . . . . . .
16
6.6 Release. . . . . . . . . . .
16
(a) Release by Declarant. . . . . . . . . . . . .
16
(b) Net Applicable to Declarant. . . . . . . .
16
6.7 Notice. . . . . . . . . . . . . . . . . . . .
17
6.8 Governing 1". . . . . . . . . . . . . . . .
17
6.9 Sevarsbility. . . . . . . . . . . . . . . . . . .
17
6.10 Captions. . . . . . . . . . . . . . . . . . . . .
17
6.11 Entire Agreetent . . . . . . . . . . . . . . . . . . . .
17
6.12 Gantlet sM *usher, . . . . . . . . .
17
6.13 Tits of the 8saence . . . . . . . . . . . . . . . . . .
17
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DECLARATION OF SPECIAL LAND USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL, MORTGAGE LIEU AND
OPTION TO REPURCHASE
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THIS DECLARATION ('lleclaration') is made as of March 11, 1992, by And
between THE IRVINE COMPANY, a Michigan corporation ('Daelarante), and the CITY
OF NEWPORT BEACH, a California municipal corporation ('Crantaa'), with reference
to the following facts:
A. Grantee and Deelarant have entered into an Exchange Agreement and
�a
Escrow Instructions (the -I t hangs Agreement') by which Crtmtae is acquiring from,
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Declarant the following described real property (the eRUhange tand•) situated
in the City of Newport leech, County of Orange. State of California:
The southwesterly one -half of Parcel 2 as shown on Parcel Map No.
90 -361, recorded in Beek 270 , pages 15 to 1E , lnelusive, of
Parcel Maps, Records of aid Cwmty.
B. Grantee and Declarant have also entered into a Transfer Agreement and
Escrow 2nstructions by which Grantee is acquiring from Declarant real property
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adjacent to and contiguaus with the Exchange land which real property 12 situated
in the City of Newport leach, County of Orange. State of California (-Transfer
Lend-) and is described ea follows:
The northeasterly one -half of Parcel 2 as shown an Parcel Map No.
90.361, retarded in look 270, Pages 15 to IS , inclusive, of
Parcel Maps. Records of said County.
C. In connection with such acquisition, Creston has represented to
Declarant that it has acquired the Exchange Land and the Transfer Land as a
single parcel described as all of Parcel 2 as shown on aide Parcel Map No. 90 -361
(the -Land-) to improve and -use, Land In accordance with the covenants,
conditions, rights, restrictions and lisitacims as particularly met forth berein
(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 eemeyance
of the land by Declarant to Grantee), and other good and wluable consideration,
the receipt and adequacy of which are hereby aelmwledged, the parties hereto
agree as follows:
ARTICIZ 1, GENERAL PROVISIONS.
1.1 6rm,t +e's Representations and Warranties. GRANTEE REPRESENTS
AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SANE
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 DECIAIUNT AND GRANTEE DESIRE TO PROVIDE A PUBLIC
LIBRARY TO SERVE NEWPORT BRACH; (b) DECARANI HAS CONVEYED AND GRANTEE LAS
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
NUT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE HOT
OTHERWISE PERMITTED HEREIN; (d) THE LIKELIHOOD THAT ANY BREACH WILL OCCUR AND
THAT DECLARANT WILL EXERCISE ANY OF ITS RIGHTS A11411ABLE TO REEDY ANY BREACH OR
NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (e)
WITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOSES AND EXPECTATIONS OF
DECIARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE
DEFEATED; (f) BUT FOR CONVEYANCE OF IKE LAND. GRANTEE WOULD BE REQUIRED TO PAY
SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (S) DECLARANT AND GRANTEE HAVE
ESTABLISHED THE FAIR MARKET VALUE OF THE LAND FOR PURPOSES OF THE OPTION TO
REPURCHASE BASED UPON PRESENT ESTIMATES AND HAVE APPLIED RDJUSTHR7r FACTORS TO
TAKE INTO ACCOUNT SUBSEQUENT CHANGES IN VALUES; (h) DECLARANT AND GRANTEE
ACKNOVIEOGE THAT HARM FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR
LESSER THAN THE VALUE ESTABLISHED FOR PURPOSES OF THE OPTION TO REPURCHASE AND
HEREBY ASSUME THAT RISK.
RUT FOR SUCK REPRESEITIATIONS BY GBAWM. AND GRANTEE'S UNIQUE SKILLS,
EEPERTISE AND SUITABILITY IN OMMMUCTION AND OPERATION OF THE SPECIFIC
FACILITIES DESCRIBED BELOW. DECLARANT WOUIJ) NOT HAVE CONVEYED THE LAND TO
CiARM. BUT UOUTA HAVE RETAIM THE BENEFITS OF OWNERSHIP, INCLUDING VU URE
APPRECIATION OF THE LAND, ON THE BASIS OF SUCH REPRESENTATIONS AND VARRANTIEI.
DRCLAEAYT HAS CONVEYED THE LAND TO GRAN TEE.
1,2 Statement of Daelarant'A General Furmeass. Declarant to the
ewmer of a large and unique landholding, part of which bas ben developed as a
waster 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
dalineetion of use areas throughout the center, together with the strict examine
of architectural and occupancy controls over Individual construction projects,
so as to ensure the harmonious grevch and development of the Center and the
maximization of the value of Declarant'• developed and undeveloped 'landholdings
u wll as the Lnd itself.
In addition to those general concerns, It is vitally Important to
Declaranc' 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 aetvieing the Center
and its environs Could be overutllized, resulting In undesirable traffic
congestion and Imbalances within the Canter. Such conditions could in turn
adversely affect the ability of Declarant to develop, own, operate, lease or sell
I" landownings, including without limitation the 'benefltted Property• as
defined below.
It is to promote these purposes that this Declaration is ends, and
it is the intencivn 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.
1.7 Definitions— As used herein, the following terms shall have the
meanings given to them below;
(a) 'Benefitted Property' shall mean the real property to
which the benefit of the pronlitens of this Declaration inures, and as of the
excretion of this Declaration sball mean the real property described on EXHIBIT
1 attached hereto. Declarant shall have the right by a duly recorded amendment
hereto executed solely by Declarant to substitute for or add cc the Benefitted
Property any real property owned by Declarant in the County of Orange,
California. The benefitted Property shall be the dominant tenement and the Lead
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 are. enclosed by Pacific Coast Highway, MacArthur Boulevard, San
Joaquin Hills Road and Jamboree Road.
(c) 'Declarant' shall wan The Irvine Company as Identified
above and Its successors, assigns or designees who shall assume the obligation
and to when The Irvine Company shall specifically assign in writing the right to
enforce these Restrictions, subject to the provisions of the Section entitled
•Assignsent by Declarant.'
(d) 'Effectiva Date' of this Declaration shall be the date
Chia Declaration is recorded In the Official Records of Orange County.
California.
(e) 'Final Hap' shall swan :be final map covering the Iand
described as Parcel Hap No. 90.161 as shown on a ary recorded in Book 270 , pages lif
15 to 18 , Inclusive, of Parcel Maps, Records of Orange County, Caornia..
(f) 'Grantee' shall mean the Crantee identified above and each
and every successor, assignee, owner, lessee, licenswe 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.
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However. such taro shall not Include any person having an Interest in all or any
portion of the land or Specific Facilities merely as security for the performer,
of An obligation. Without limiting the generality of the foregoing, if Crantn
luau all or any of its interest in the Land or the Specific Facilities, both
the lessor and lasses under such less, shall be responsible u principals (and
net sureties) for compliance with all the terms and provisions of this
Declaration.
(g) The 'Cross Floor Arose shall ran the aggregate mbar of
square feat of floor space on all floor levels of any building, including
mezzanine,, measured from the Interior face of all exterior wells. No deductions
or exclusions shall be mad* by mason of columns, stairs, elevators, escalators,
or other interior construction or aqulprnc.
ARTICLE 2. SPECIFIC RESTRICTIONS.
2.1 Specific Facilities.
(a) Improvement and Continued Use. Grantee represents and
agrees that Grantee shall uasa the land to be Improved only with the specific
facilities described on EXHIBIT 1 attached hereto (the 'Specific Facilities-) and
the ocher improvements described on EXHIBIT 2 attached hereto (the *Other
Improvements•) and in full mecordanee with all of the tarn 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 on
other use, notwithstanding that ether 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
tosaennly associated with public libraries now and in the future Including any
fem of information storage and retrieval such as video tapea, 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
ef'the public library fatilicy. No portion of the Land, or any improvements
thereon, or an`y' portion thereof, shall be used for retail,- eammorcial, queal-
retail or quasi-commercial - taeflities that - materially compete with the retail and
coemercial facilities in the Center or otherwise improved, developed. wed,
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 accordant. with the standards and procedures eat 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) Co®encement and Completion. Subject to extensions of
time for unavoidable delays es provided under the provision entitled "Unsvoidable�
Delay," (1) within the time period specified on EXHIBIT 2 as the •Cosneement -�_
Date,• sassured from and after the Effective Date of this Declaration. Grantee
shall have commenced construction of the Specific Facilities on the Land, and
(it) within the time specified on EXHIBIT 2 as the 'Completion Data,- measured
from and after the Effective Date of this Declaration, Crantea shall have
completed construction of the Specific Facilities on the land in a man ar
consistent with plans and specifications apprmad 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 Fac l l itfes (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
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governmental entity or agency a valid Certificate of Use and Occupancy for the
Specific Facilities. Grantee shall ceasnce and complete construction of the
Other Improvements prier to or eentempo- "Ously with much Specific Facilities.
(d) Czoln, prior to the commencement of any grading or
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similar work an the (and, Grant" shall submit to Declarant for its approval two
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meta of plane and specifications for grading, terracing and filling of the )and
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and for construction of other similar improvements tn, on or about the LAM.
(e) Utilities, Streets and Public lanrovements.
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(I) Grantee shall cause all necessary facilities for
water, drainage. savage. telephone, electricity, cable televisi ", and other
utility service for the Land to be constructed and Installed there" and thereto
in the manner and within the rise required by the Exchange Agreement.
(it) 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 struts,,
strut lights, driveways, curb cuts, worry ways, sidewalks and the like,
perimeter walls and femme, irrigation and drainage systems, landscaping,
monument, directional or other sips and all Ilk* 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 "
necessary to create a first class attractive condition, and in a manner
consistent with the existing landscaping in the Center. Grantee shall submit to
Declarant for its approval two sets of plus and specifications for the
landscaping on the Lana.
-- (g) Alterations and Additions. Grantee shall our sake any
substantial- ad¢itiens, alterations or other modifications .(;alterations') of or
to the exterior of the Specific Facilities or any additions, altarations or other
modifications to the visible portions of the Other Improvements or other
improvements free time to time located on the Land, without the Eric- written
approval of Declarant. Daclarant 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 then
those specified in MISIT 2, than Declarant my impose additional restrictions,
covenants and obligations " a condition to its approval. AS used in this
Section, the •excerior• of the Specific Facilities shall scan all reefs, outside
.ells -and facades, structural foundation, entrance doors, windows, outside
walkways, ramps and other accesways, and parking facilities,
2.2 Declarmt'a Averevals.
(a) Approvals Reouired. Except with respect to plain 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 Kitten
approval of Declarant exercising Its sole and absolute discretion. The
improvements constructed shall comply with the plans and specifications approved
by Declarant pursuant to the Agreement or this Declaration. Crantae agrees that
the Specific Facilities, the Other Improvements and all other landscaping and
improvements on the Land shell be designed, constructed and installed to provide
for a library with complementary landscaping and surrounding improvements which,
in the sole discretion of Declarant, are in harmony with the plan and design of
the Center.
(b) Time for eerw•1s. Declarant skull approve or disapprove
any plane and specifications delivered to Declarant pursuant to this Article as
soon as pemeibla but no longer than thirty (20) working days after receipt of me
copies thereof accompanied by such drawings, site plans, elevations, artists'
conceptions, samples of materials, models, mock-ups, and color samples as from
ties to time required by Declarant to revlew such plans and specifications. If
approved by Declarant, such approval shall be endorsed an such plans and
specifications and ova sat of such documents baring Declarant-s approval @hall
be returned to Grantee within such thirty (30) working day period. if Declarant
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does not approve such plate and specifications. Declarant *hall notify Grantee
of Its reasons for not approving such plane and specifications and Grantee shall,
within forty five (0) working dye after receiving notice of Deelarsnt's
disapproval, submit taw place and specifications for Declarant•@ approval.
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Failure of Welarmt to approve or disapprove any plane and specifications within
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said thirty (30) working day period and DecLarant•a continued failure to approve
or disapprove for fin (5) working days after Grano'* written notice to
Declarant that Declarant has failed to approve or disapprove as required herein
shall ba Waned approval thereof, the approval by Declarant of any plane and
specifications pursuant to this Section shall only represent Desistance'
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satisfaction with the plane MA specifications as to their general *esthetic
elements. Such approval shall net be deemed to constitute any representation or
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warranty by Declarant as to the adequacy or sufficiency of such plats and
specifications for arehteeetural or engineering design or the feasibility or
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integrity of any grading, landscaping, improvement or construction contemplated
thereby for any sae or purpose. By approving such place and specifications.
Declarant paume• re liability or responsibility therefor or for any dafect in
any grading, landscaping, improvements or construction made pursuant thereto.
(t) As Built Plans. Upon completion of the grading,
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I&Macaping and construction of improvements. Grantee shall submit to Declarant
two vas built• sepias and a Certificate of Compliance executed by Grantee'• atete
licensed consultant (engineer, architect and/or landscape architect). The
Certificate of Compliance shall warrant that the completed grading, landscaping
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and construction conferee to the plane 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 ov
constructed In. about or on the land as contemplated herein shall be constructad,
Installed and completed at the sole cost std expense of Grantee and without my
cost, liability or expense to Declarant. '
2.4 Fulfillment of Mae Conditions. Certain cep conditions dated
Movember 21, 1991 (copies of which have been provided to Grants*) have been
Imposed in connection with the approval and recordation of the Final Map. Except
as othervise agread In writing by Declarant and Grantee, Grantee shall comply
with and /or fulfill all of those duties and obligations imposed by such cep
conditions on the 'Applicants and /or 'Subdivider- attributable to Grantee's use
or development of the Land, all at Grantee's sole cost and expense.
2.5 Cosollance With law.
(a) Grantee to Comely. The Specific Facilities, the Other
improvements and all rther landscaping. grading and other improvements made or
constructed in, about or on the Land, and the use thereof, shell comply at all
times with all ptblic 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 my from
time to time be required with respect to the performance contemplated under this
Declaration, including, as applicable and without lialtatfon, appropriate seeing,
building permits, permits from the California Coastal Commission, operating and
business licenses and permits and the like. In obtaining such approvals and
permits, Grantee shall prepare, at its sole expems, as necessary and without
limitation, all environmental impact reports, engineering studies and the like
as necessary.
(b) Approve Is of Applications. All requestscrapplicatlons,
together with all supporting documentation, for governmental approvals or permits
which require discretionary action by discretionary bottes of Crentee 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 request*
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) day, after Cranta's written notice that Declarant has failed to approve Or
disapprove as required hereunder shall be deanad approval thereof. Grantee shall
cause copies of all written co oacsicatioce between Grantee and other gov romntal
agencies processing such requests or opplicatloce to to delivered to Declarant
within five (5) business days after such tommwiution has been delivered to the
addressee.
, r
2.6 2gmpg. Before the ceoemement of any of the work required
under this Article 2, Grantee shall furnish to Welarant true copies of any and
all labor and mterlal bonds end faithful perfarsanee bends. if any, required of
Grantee by any governeental &gamy concerning such work.
2.7 Transfers.
(a) rransfers Prohibited. For a period of not lea than
twenty-five (25) year. after the Effective Date, Grantee shall not sell, lase,
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convey, exchange, encumber or otherwise transfer the land or any portion thereof
or facilities thereon, whether by agraesant for sale or in any ether sooner
(herein collectively referred to as a -transfer") without first giving Declarant
at least sixty (60) days' prior written notice of all term and conditions of
such proposed transfer and the right to either (1) acting reesenably, approve or
disapprove such transfer, (11) exercise its option to repurchase set forth in
Section 5.3 below, or (111) exercise its right of first refusal set forth to
Article 4 below. Declarant in its sole discretion may withta such sixty (60) day
period exeretse 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
i
term and conditions proposed by Crantee. Any tiro after the twenty fifth (25th)
anniversary of the Effective Date, Orestes say transfer the land without
Declarant'a approval under this Section and without regard to Declarant's option
to repurchase set ferrh in Section 5.3 below or Decl.rxnt's right of first
refusal net 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 repsrtehase and /or right of first refusal If the proposed transferee
is not adequately experienced, knowledgable and financially capable to own and
operate a public library. ` - '- - - .
(b) Fernitted Transfers. :otwitbsrandlag the foregoing. (1)
Grantee my transfer the Land to any other governsemal or quasi- govermental
encicy or agency which has m tea priwary purpose mletenance and operatlon of
public libraries provided such entity shall be subject to all of the provisions
of this Declaration or (it) provided Grantee complies with the provision of
Section 2.e below, Declarant shall consent to a transfer or encumbrance an the
Lend made in connection with an interim or permoent loan or loans or other iota
of private or public ffcencing (including without Unitarian bonds, lease revenue
obligations or certificates of participation) ( "public obligations") ado in good
fetch sad for value by an institutional lender or by a public obligation, the
proceeds of which rre used only for the costs and expenses of umh public
obligations and construction of the Specific Facilities and Ocher lmprwveesnts
or refinancing of a construction fisaming In an amount not to exceed the amount
outstanding under the construction financing (collectively, 'Permitted
Transfers').
2.8 Subordination or Gonsant to Transfer for "Ile
Financing. Subject to the following provisions and the provisions of Section 5,7
hereof, Declarant will either consent to a transfer described in Section 2.7(b)
above, without exercise of Declarants right of first refusal contained in Article
4 and the option to repurchase contained in Section 5.3 (collectively, the
"Enforcement Rights`) or Declarant will subordinate its Enforeesent Rights to any
encumbrance raferred to in Section 2.7(b) ineadiately above, (which Section
2.7(b) shall continue in effect even after Section 2.7 no longer has any
application to this Declaration, for purposes Only of describing the transfers
and encuabrames to which Declarant will cesticet to consent or subordinate
Pursuant to this Declaration) provided that the prim 1psl amount of such a loan
or public obligation does not, in eenbtsation with other loam and /or public
obligations secured by or affecting the land and/or the improvements constructed
thereon do not exceed at any ties nicety percent (901) of the fair market value
of the Land and any improvenents thereon, valued taking Into account the
restrictions contained In this Declaration, and such loans and/or public
Obligations are at commercially reasonable interest rates and otherwise contain
commercially reasonable terns and conditions. Grantee will provide Declarant
with appraisal information from a reputable N.A.I. appraiser, from the Office of
the Assessor of Orange County or from an institutional lender reasonably
satisfactory to Declarant to verify that the total lawn -to -value rate doss not
exceed ninety percent (900). No foreclosure, trustee's sale or deed in lien of
foreclosure with respect to any such permitted smumbranca or exercise at say
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nerdy to enforce a public obligation shall be dammed an 'Assignment' for
purposes of Section 2.7, above. Within tan (10) verkinS days after receipt of
the following Ltame, provided the foregoing requirements have been satisfied and
provided there is no default under any provision of this Declaration or under any
other obligation batsman Declarant and Cranes relating to the land, Declarant ,{
shall execute, acknowledge and deliver to Grantee a subordination instrument In
substantially the form attached hereto as MIBIT 3 or a consent to transfer.
pursuant Co issuance of a public obLLgetton: J1
(a) Cony of loan Documents. A true and complete copy of ell
instruments executed by Grantee evidencing or securing the Issuance of a public
obligation or loan; any lease, mortgage, deed of trust or other interest or right
created to enforce payment of any public obligation which effects the Land must
i
net secure or relate to any obligation or indebtedness not related to improvement
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of the land', and neither the note, the mortgage, deed of trust, lease nor any
other document or instrument pertaining to a loan or public obligation pertaining
to the land shell contain any provision making it a default thereunder if the
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obligor or any other party defaults In any obligation net related to the
acquisition or improvement of the Land; `
(b) Title Export. A preliminary title report dated net J
earlier then fifteen (15) days prior to submittal showing no title exceptions
other than those in existence at the time Doclarant transferred the land to
Grantee, other utility easements reasonably necessary to serve the Land, and
other matters approved by Declarant;
(c) Disbursement IMtyuttfons. A copy of the executed
- financing_ instruments, loan agreement or other agreement pertaining to the
disbursement-Pf funds, which must provide in a manner satisfactory to Declarant
that the funds disbursed- therewader_ will be used only to purchase or improve and
benefit the Land, or to refinance original financing made for such purpose (in
an amount not to exceed the amount outstanding under the acqulsitlon/con. _ruction
lean refinanced); and
(d) Renueat for Notice of Default. Unless public obligations
are issued which do not Involve a standard mortgage lien to secure performance
of a note, s copy of a Request for Notice of Default pursuant to Section 2942b
of the California Civil Cede prepared for execution and aeunowledgment by
Declarant which, when retarded at Grantee's experts, will entitle Declarant to
the notices prescribed by said Section 29426. If public obligations are issued,
then the documentation for such financing shall require delivery of a notice of
any default to Declarant prior to exercise of any remedies available upon such
default.
2.9 Costa of Reelonal Development. Grantee uMaratanda that
development of the Specific Facilities on the Land will be accomplished in
conjunction with drselopment of other real property in the Center by Declarant
other private parties. Grantee hereby agrees to pry its abate of infrastructure
Improvements made on, adjacent and off the sites of the Land. The infrastructure
improvements shall include the improvements required to complete the items sot
forth in MISIT I of the Exchange Agreement.
2.10 I%Mrthur Bedevsrd Dedication and Maintenance. Declarant and
City agree that a land area along MacArthur Boulevard shall be designated on the
Final Map to be used exclusively for future expansion of MacArthur Boulevard.
Prior to construction of road and other Lmprovsnsnto for such expansion. Grantee
shall not use the area designated for any purptee other than installation and
maintenance of landscaping. Grantee agrees to Lmtall landscaping within such
area prior to completion of construction of the Specific Facilities pursuant to
plane and specifications approved by Declarant in accordance with the standards
and proted4res 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.
a r'.. -.sr:. w n
3.1 Unawroved Dewlgoment er Use. Unless expressly approved by
Declarant, which approval Any be withheld by Declarant in its sole discretion.
Grantee shall not permit the construction, maintenance, operation or was of Any
structure or improvements me the Land net In full compllanca with all
requiremants 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 weds, debris and pasts. Upon completion of the
Specific Facilities as contemplated herein, Grantee shall at all times maintain
char Specific Facilities, the other Improvements and all other Improvements from
rise to ties located on the Land, including without limitation the landscaped
areas, in first -class condition, order and repair. Grantee shall remove any
graffiti on cha improvements, other Improvements and all other Saproveesnta en,
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, Greece* shall at its cat 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 a
provided above, or (Si) 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 shell be completed with due
diligence but net longer than as (1) year after such work is cpmmen"d. The
time periods specified In this subparagraph entitled "Restoration" shall be
extended a provided In the Section of this Declaration entitled •Unavoidable
Delay."
3.4 —2Xtinaee. Grantee shall not drain or discharge water free the
land (including but not limited_to rain water And water free landdrape sprinkler
systems located on the Land) art-ti to idjaaanr nand 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 Lend onto the public street adjoining the land
or Into An established drainage facility, if Any. an or adjacent to the Land
which has been designed to accommodate the water at the rate discharged.
3.5 'Sim.. Grantee shall net place or use any signs, hammers,
balloons, displays of other advertising media 1n, on, about or above the Land or
on or In any Improvements constructed or placed thereon unless it has first
obcelned the prior written consent of Declarant as co 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 wit*_ (I) Declarant-s sign program for the Land, the property
surrounding the Land ant the geesfitted property, if any, And (ii) the statutes,
ordinances or regulations of any governmental entity or agency having
jurisdiction thereover including Grant" itself and (b) are in harmony and
conformiry 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 to
located. Except as provided in this Section, em sign, banner, balloon, display
or other advertising media Mich is visible from adjacent land or any public or
private street shall be maintained in, on about or show the Land or on or in any
improvements constructed or placed thereon.
3.6 Prohibited Operations and Uses. No trailer, camper, bus,
automobile. motorcycle, boat or other vehicle or equipment ("vehicle ") shall be
permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 a.a.
No use or operation shall be made, conducted or penitrad on or with respect co
all or any part of the Land or Improvements thereon vh:oh 1a obnoxious to or out
of harmony with the residential and /or commercial neighborhood in the vicinity
A the Land. Included Among the uses or operations Mich are prohibited and are
deemed to conflict with the reasonable standards of appearance and saintowmea
required hereby, are saes or operations Mich produce or are accompanied by the
following characteristics, Mich list is not intended to be all, inclusive:
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r
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(a) Any public or private neisamee;
(b) Any vibration• mine, sound or disturbance that is
objectiwuble due to Intermittence• Mat, frequancy shrillness or landmass;
(c) Any direct lighting Mich is not shielded and confined
j
within site boundaries;
/
(d) Am emission of odors• noxious• caustic or corrosive
matter• whether toxic or nontoxic;
(a) Any litter, dust• dirt or ash in excessive quantities;
(f) my 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 mow a vehicle
to a maintenance facility off of the land;
we I
(h) Any raising• branding or keeping of animals, livestock or
poultry of any kind;
(1) Fuel storage of any type;
7
(j) Any accumulation of rubbish, trash or garbage. All refuse
contatmrs,.alr conditioning devices, utility areas, storage areas and machinery
i
and equipment shall be prohibited upon the Land unless screamed from view from
all adjoining lots and public and private streets; and
_ (k) Any exterior radio antenna, television antenna, •C.g.'
antenna, •satellite dish.' microwave transmitting or receiving antsms or other
i
antenna, transmitting or receiving device of any type unless It Is screened from
view from all adjoining lots sad publie and private streets.
Any screen required under this Section shall consist of permanent
landscaping and/or improvements In Masonry with other landscaping and
Improvements in the Center and approved in writing by Declarant. The provisions
of this Section entitled "Prohibited Operations and Uses' shall not in any way
supersede the otba- Restrictions.
3.7 No Subdivision. Grantee shall mt effect any .:hangs or
amendment to the Final Nap covering the lad or record any further parcel or
final map of the Land or any portion thareof.or facilities thereon pursuant to
the California Subdivision Nap act or any similar lw 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 corny a
portion enneisting of less than all of the Land, unless expressly approved by
Declarant which approval my be withhold by Declarant in fu sole discretion.
3.9 Zonins. 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 governments.
entity having zoning jurisdiction over the Land. Additionally, Grantee shall not
at any time change er attempt any change in zoning, or obtain or apply for A
conditional use permit, zoning variance or exception or ocher 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 withhold in, its sole discretion.
Notwithstanding the foregoing. Declarant shall not w'roasomably withhold Eta
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 3ndmnin. Declarant and Declarant'• past and present
employees. officers, directors, shareholders, agents and representatives and its
and their respective successors and assigns (collectively, the •Indasnitess•)
shell not be liable for any lass, damage, injury or claim of any kind or
character to any parson or property arising from or caused by (a) the
improvement. development, maintenance, we, 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
sJ
or alleged to arise from or be caused by (1) amt nsa of the Land or any part
thereof, (Li) any defect In the design. construction of, or material in my
structure or other improvement upon the Land, (111) any defect in or
contamination of soils or in the preparation of molls or in the design and
socomplisMent 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. levitate, or contractors, (v) any
f
accident or casualty on the Land, (vi) any reprtsentatione by Grantee or any of
Its agents or employees, (vii) any violation or alleged violation by Orontes. Its
employees or agents of any law now or hereafter anactad, (viii) any slope failure
of subsurface ,geologic or groundwater condition, ((x) any seek of design,
canstructiom. engineering or other work with respect to the Land, (s) any other
cause whatsoever In connection with Grantee's use of the land or Grantee's
me'
performance, under this Declaration, or any ether 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 ether 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. Furthermere, as a
material put of the consideration of this Declaration, Grantee hereby wives an
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
I(
and its property, and the other Indem.ltecs 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 may
other.yerson(s). The foregoing waiver and Indemnity shall apply to a claim or
action brought b" 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 o[ [lain. arising before or after the lasso, sale
or other conveyance of any portion or all of the Land of 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 Deelarant'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 Irdemnitees from any
loss, damage, injury or claim ultimately established by a court of coapstant
jurisdiction to have been cauaed 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 leas- or other conveyance of all or any part of the Land or
improvements thereon and shall be binding an said Grantee (as wall as Its
successors to the Land) until such tins as action against the Indemmitees Is
absolutely barred by an applicable statute of limitations.
ARTICLE a, DECIAR"l'S RIGHT OF FIRST REFUSAL Except with regard to
'Permitted Transform- described In the Section above entitled •Transfers', if,
at any time prior to the twenty fifth (25th) anniversary of the Effective Data,
Grantee shall determine to transfer all or any part of the LW or the
improvements thereon or any interest therein ("Interest'), Grantee shall notify
Declarant of the price and the tams an which Grantee will he willing to
transfer. If Declarant, within sixty (60) days after receipt of Grantee's
notice, indicator in welting Its agreement to purchase said Interest for the
price and an the tats stated in Crantes'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 net indicate its agmeacnt within such sixty (60)
day period, then Grantee thereafter shall have the right to transfer and convey
the Intaresc to a third party, but only for a price not less than the price
offered to Declarant and on terms net more favorable than those stated in the
notice. If Grantee does not so transfer end convey the Interest within one
hundred eighty (160) days after Grantee's notice, then any further transactions
(including a transaction on the memo price and cams previously submitted to
10
Declarant) shall be dossed a now determination by Grantee to transfer and convey
said Interest, and the provisions of this Article shall again be applicable.
ARTICLE 5. gUZ=.
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
u
been cured within the applicable core period as sat forth below. Declaramt at its
sole option and discretion may enforce any one or more of the following remedies
I
or any other rights or remmdiss co which Declarant say be entitled by law or
equity, whether or mot at forth herein. Unless a ewe period is otharwiso
specifically designated, a cure period shall comments when Witten notice is
given to Grantee of a violation hereunder and shall end ten (10) days thereafter
f
In the came of a monstary default and thirty (30) days thereafter in the came of
'
a nonnenetary default; provided, however, that if a nonmonstery default Is not
:oncerably c• aptible to _.e pro ,tly within the thirty (pO) nay 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 sM thereafter
diligently prosecutes the cure to completion. To the mamimus extent allowable
j
by law, all remidLas 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 my remedy provided for in
Section 5.3 hereof based upon a particular violation of the Restrietiam, such
remedy shall be Declareat's sole sM exclusive remedy for such violation of the
Restrictions. Notwithstanding the foregoing. Declarant'• remedies for a
violation or breach of Section 3.10 (Indemnity) shall be cumulatlw with and in
addition to its rowdies for other violations or breathes under this Declaration.
i
(a) Demons. Declarant may bring a suit for damages for any
comperaable breach of or noncompliance with any of the Restrictions, or
declaratory relief to determine the enforceability of any of the Restrictions.
1
(b) Equity. It is recognized that a particular or ongoing
violation by Grantee of ono or more of the foregoing Restrictions may cause
Declarant to suffer material-injury or damage not compensable in aeney damages
(including, but not limited to, irreparable effects on the type and quality of
development an and use of the Denefitted Property or portLOms thereof and/or
frustration of Deelarant's purpose for conveyance of the Lad 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 contin an:e of any such breach or violation thereof, whether or not
Declarant exercises any other remedy set forth herein.
5.2 inspection. Declarant or its authorized representatives may
from time to time, at arty reasonable hour, enter upon and inspect the land, site
of any portion thereof or improvements thereon to ascertain compliance with the
Restrictions, but without obligetion to do so or liability therefor.
5.3 option to gggurchose 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 roadies 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 sale option and
discretion; shall be entitled to repurchase the Land as provided below.
(Declarant shall not be entitled to repurchase the Land unless a proposed,
attempted or actual transfer In violation of Section 2.7 has been initiated, a
violation of the restrictions in violation of 2.l(a) has occurred or construction
has not been commenced or completed as required by Section 2.1(c).)
(a) Grant of Option. Grantee hereby grants to Declarant an
exclusive option to purchase the Land subject only to:
i
(1) Current taxes not y,t delinquent;
(ii) Batten affecting title existing at the Effective
Data of this Declaration, excluding any mortgage, deed of trust or similar
Increscent -to which Declarant has subordinated the Enforcement Right, pursuant
to Sectlon 2.E'above:
11
(111) Matters affecting title which are created, "de,
"surd, consented to or requested by Declarant, its successors or assigns,
excluding may rrtgage, deed of treat, any rtter related to ime"nea of any
public obligation or stellar Swtrument to which Declarant has consented without
exercise of the Rnforcemant Rights or to which Declarant has subordinated the
Rnfozcement Rights pursuant to Section 2.8 above;
(iv) Natters shown as printed exemptions in the standard
foe California Land title Association owwr'a policy of title insurance.
(v) Aontaterfering movements for utilities wed in
connection with the Improvements constructed on the Land.
(b) Sxerciae of Reourehase Optim. Declarant may exercise its
option to repurchase the Land by giving written notice to Grantee Of DlCllranC's
election to repurchase within (i). sixty (60) days after receipt of Grantee's
notice of proposed -transfer- as provided in Section 2.7 (Tr.fers) above, (ii)
within ninety (90) days after Declarant receives actual —tics Of any transfer
or attempted transfer in violation of any provision in Section 2.7, (111) within
ninety (90) days comawing thirty (30) days after delivery of notice to Grantee
of violation of the Restrictions itwixed in Section 2.1(a) if such violation has
continued mebated, or (Iv) within one hundred eighty (180) days of the
respective comaeuewant of co"Istfen dates (" much dates say be extended
p"muant to the tart of this D"laratim) in the event of Grantee's violation
of Section 2.1(c) above. For purposes of this Section 5.3, Declarent's actual
notice shall mew write to the parson to whom notice may be addressed under
Section 6.7 of this Declaration, and he other persons. No failure of Declarant
to exercise its option upon Grantee's failure to coon mo construction as
provided above shall constitute a waiver of Its right to exercise the option open
Grantee's failure to coapleta 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 • waiver of Declarant's rights
to smarties the option upon any such transfer subject to Section 2.7 which sight
be proposed, attempted or cowuseset_ed at a later time. No failure of Declarant
to deliver a notice of violation of the Restrictions contained in Section 2.1(a)
shell constitute • waiver of Deelarant's rights to deliver such notice at •ny
time and exercise the option. Rescission of any notice of violation of the
Restrictions itemized in Section 2.1(a) prior to the option betting exerclsable,
or if such violation 1s cured, after the option betting exercisable shall net
cowtitute waiver of Deelarent'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 bectme exercisable.
(c) Expiration and Ouitclaln. Unless axertisedby Declarant,
this option shall expire upon the twenty fifth (25th) anniversary of the
Effective Do". After expiration and upon written request therefor by Grantee.
Declarant shall execute and deliver to Grantee a qu(telaim deed satisfactory to
Declarant relinquishing all of Its rights under the option to repurchase portion
of this Declaration.
(d) R ourchgse Pri e. Declerant's purchase price for the LM
upon its exercise of the option provided above, shall be the greater of:
(1) An amount including the following:
[A) The price attributable to the Land equal to
the looter of (A) $4,400,000 Increased or decreased by CPT adjustments which
shall be limited to an a- uelizad increase or decrease of five percent (50 per
annum or (B) the appraised fair rrket value of the Land with the we restricted
to the we for which Declarmt notifies Grantee at the time of exercise of the
option that it intends to use the Land. Declarmt si•11 notify Crantee that it
intends to use the Land either for coaserclal office ;r retail "a at the time
of delivery of the notice of exercise or any clam thereafter (Failure of
Declarant to specify a use in conjunction with delivery of a notice of exercise
of the optim. shall not Invalidate or otherwise affect exercise of the option.).
The CPT adjuetmedt shall be the percentage increase or decrease in the CPT
measured frt the month which is two months prior to the Effective Date to the
month which to two months before the date of delivery of the notice of exercise.
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The CPI shall be the Consumer Price Index for All Urban Consumers Los Angeles-
Anaheim- Riverside Metropolitan Area (all Item) 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 modiflad or changed. then the CPI shall be
a converted or substituted Index as determined by Declarant. Plus
(B) The fair market value of the Ussable
Improvements, if any. on the Land at the time the Optima Is exercised. The
•Useable Improvements• shall be limited to those interior are" of buildings
which can be aced or converted for use as interior commercial or retail rentable
space in accordance with the we which Declarant intends to put the Useable
Improvements as designated by Declarant. Fair, market value of such Useable
Improvements shall be determined wing an income method of appcaL "I based upon
comparable rents determined on a wsable square foot basis for the square footage
of the Useable Improvements offset by the cost of any improvements required to
convert the we of the building to the we which Declarant notifies Grantee that
It i.- ,tea.'.: to rut the Usable Improvements. Ws
(C) All costs, expenses, interest, face, advances
and other spas required to be paid by Grantee to Declarant hereunder, to the
extant net reimbursed to Declarant by Grantee, shall reduce the smont of any
repurchase price to be paid by Declarant under the term of the repurchase option
contained to this Declaration. Or
(11) The unawrtlxedprim £pal moment. plus interest of,
and expenses (including without limitation costa to rode" and discharge
Including any call premium provided that aggregate call premium shall be limited
to five percent (5e) of principal) incurred in connection with, any Issue of
public obligations where the proceeds have been wed only for costa and expensea
related to construetion of the Specific Facilities on the Land provided that the
original principal amount of such public obligations does act exceed
$8,000,000.00 and provided that the amount payable to Grantee under this
subparagraph (it) shall be reduced and offset by my and all funds hold for the
benefit of any holders of public obligations other than funds held to pay the
costa of issuance, if my.
(a) Repurchase Escrow Tens. 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 liatt of thirty (30) days
extended by any period necessary to arbitrate any determination of fair market
value as provided in Section 5.4 below. Said escrow shall be subject only to
approval by Declarant of a then current preliminary title report. Any exceptions
shown thereon created an or after the Effectiva Data 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 everw. In the event that the Land or any
portion thereof is encuatered by a mortgage or deed of trust, Declarant my
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 dead, and for a
California Land Title Association standard form wmer'a coverage policy of title
Insurance In the amount of the purchase price showing title to the Land vested
In Declarant or its assigns fns and clear of ell lieu, 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) Irrevocability. The option created hereby shall be
Irrevocable by Grantee, and shall be binding upon the representatives, successors
and assigns of Grantee.
(g) Warranties. Plans and Soeetfleations. 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
sopciflcations relating to the Usable Improvements and any other improvements
transferred by Grantee to Declarant hereunder.
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5.4 Arbitration Procedure. If Declarant and Grantee are not able
to agree to the fair market value of the land or the Useable Improve manta within
thirty (30) days after the date Declarant gives Grantee notice of exercise of the
option, than the following arbitration procedure shall apply:
[A) Declarant shall within An additional thirty
(30) days, at Declarant's coat, deliver to Grantee a wrLtbn appraisal of the
applicable highest fair market value with which Declarant agrees, prepared by an
independent qualified appraiser ('Declarant's Appraisal'). The tan 'independent
qualified appraiser- as used in this Section shall wan a prefessioal
independent appraiser who is a Member of the American Institute of Real gets"
Appraisers (R.M. or M.A.I.), the society of Real Ester, Appraisers (S.R.A.,
S.R.P.A., or S.R.R.A.), the American Society of Appraisers (somber or senior
—mbar 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.
(R) If Grantee does —t agree with Declarent's
Appraisal, Grantee shall notify Declarant in writing of such disagreement in
writing within ten (10) days after receipt of Declarant'• 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 Apprslsal').
If Grantee fail& to deliver Grantee's Appraisal within the time provided, or if
Grantee's Appraisal of fair market value 1s lover than or equal r, that centalnsd
in Declarent'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 1s higher, than Declarant'' Appraisal, and
if Declarant and Grantee cannot than 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 tan (10) days thereafter
mutually agree on a third independent qualified appraiser acceptable to them to
make An independent determination of the applicable highest fair marke_ value
(the 'Fimal 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 an a third independent qualified appraiser
acceptable to them as specified above, then such third appraiser shall be
appointed in accordance with the provisions of California Code of Civil procedure
Section 1281.6, or any successor statute, and in such event the Independent
determination of the highest fair market value made by the third appraiser so
appointed shall be the 'Final Appraisal.' If the third appraiser must be
appointed pursuant to the provisions of the California Code of Civil Procedure
Section 1281.6, or any successor statute, Declarant shall file a petition r,
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. I£ 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 to the Final Appraisal is higher than (1) the fair
merket value established in Grantee's Appraisal or is lower than (2) the fair
oarket value established In Declarant's Appraisal, or equal to either, then the
final determination of the applicable fair market value shall be (1) or (2)
depending upon which one Is equal or closer to the fair market value established
in the Final Appraisal.
)D) The procedure act for Ch 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 ties to satisfy
any commit —wits, agreements or made of Grantee.
5.5 Waive . No Yalver by Declarant of a breach of any of the
Restrictions by Grantee and no delay or failure to enforce any of the
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Restrictions shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or AM other of the Restrictions. We waiver of any
breech or default of Grantee hereunder shall be implied from any mission by
Declarant to tab my action on account of such breach or default if such breech
or default perststs or is repeated, and no express waiver shall affect a breach
or default other than es specified in said wlver. The tenant or approval by
Declarant to or of any act by Grantee requiring Declarant-s consent or approval
shall rot be doomed to waive or render unnecessary Declarant•a consent or
approval to or of may subsequent similar acts by Grantee.
5.6 Casts of 8nfortament. In the event any legal or equitable
action or preceading shall be Instituted between Declarant and Grantee to enforce
any provision of this Declaration, the party prevailing 1, such action shall be
entitled to recover free the losing party all of its costs, including court costs
and reasonable attorweys• des.
5.7 RLhcs of n &ndara. 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 fismncing of the land or my portion thereof; provided,
however, that this Declaration and all provisions hereof shall be binding upon
and effective against any subsequent over or other occupant of the land or
portion thereof whose title is acquired by foratlosure, trustee's sale or deed
in lieu of foreclosure but (a) suet subsequent owner shall have a reasonable time
after acquiring title In which to coca any violations or correct and cheap ary
facts giving rise to Daclarant-a rights under this Declaration occurring prior
to one)) transfer of title and which are reasonably capable of being cured or
changed provided, that such subsequent owner diligently acts to effect sucb cure
or change (and in the event of such diligent sad timely cure, such subsequent
owner shall have no further liability In connection with such prior violation or
the continued ox:stenea of such violation until such aura is completed), and (b)
Sections 5.1(a) (Duagea) and 5.3 (Option to Repurchase the Land) shall not be
— applicable as to such subsequent owner with regard to any nencurable default
occurring— .prior to the time such subsequent owner acquired title.
Notwithstanding the foregoigg,_my each subsequent owner shall be required to use
the Land in accordance with the restrictions set forth in Section 2.1(a) and
diligently complete consttweclan of any Specific Facilities and Other
Improvements Which are incomplete an the data 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 memuer consistent with the
requirements of this Declaration is physically and legally possible (without
respect to cost).
5.8 Advaoces. Declarant shall be entitled to advance any sues
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
affairs Improvements, any property taxes or assessments, insurance premiums, or
amounts secured or represented by encwbraoces or liens or other charges on any
portion of the ]and 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.
�M "
6.1 Dhavetdable Delay. Any prevention, delay or stoppage in the
work of building the Specific Facilities, the Other Improvements and any other
related improvements or other work es provided for in this Declaration caused by
acts of God, war, inability to obtain labor or materials or reasonable
substitutes therefor, or other similar mettern 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 net to exceed In the aggregate em 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
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Grantee or because of my Inability of Grantee to obtain funding from any source.
Without limiting the generality of the foregoing, in no event shell Grantee's
Inability to obtain construction or permanent financing for development of the
Land, of 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 ti"
for exercise of Declarant'• rights shall be eoeensursemly exceeded.
6.2 Conttmmus Operations. Grantee shall proceed continuously and
diligently in accordance with the reras 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
sec forth in the aectiuu I.eteof entitled .,,r.......b1e Delay
6.3 Covenants to Run With the Land, Tom.
(a) Covenants to Run With the •M. The Land shall be bold,
improved, developed, conveyed, hypothecated, encumbered, leased, rented, used and
occupied subject to the Restrictions "t forth in this Declaration. The
Restrictions are for the benefit of the Beraftcred Property and are intended end
shall be construed " covenants and conditions running with and binding the Land
and equitable servitudes upon the Lnd and every part thereof. Puthereare, all
and each of the Restriettons shall be binding upon amd burden all persons having
or acquiring a" right, title or interest In the Land, or any part thereof, and
their successors and assigns. and shall finere to the benefit of the Berefitted
Property and the owners of the benefitted Property, their successor& and Assigns,
and shall be enforecabla by Declarant and its successor, and assigns. all upon
the terms, provisions and conditions set forth herein.
-' (b) Lem. All of the term and provisions act forth in this
Declaration shall continua in full force and effect in perpetuity—pxeapt that
Declarant's 'Psforcament Rigbts—' {as. described in Section 2.6 above) shall
terminate twenty. five (25) years from the Effective Data hereof. (The provisions
of this Declaration which shall survive In perpetuity shall include, without
limitation Article 1, Sections 2.1 through 2.6, inclusive, 2.9, 2.10, Article ),
Sections 5.1, 5.2, 5.5 through 5.9. inclusive, and this Article 6.)
6.6 Assignment by Declarant. Declarant may assign any of its rights
and powers under this Declaration to any fee owner of any portion of the
Seneficced Property, so long as such person or entity in writing agrees to assom
the duties of Declarant pertaining to the particular rights and powers "signed.
Upon the recordation of such writing accepting such assignment and assuming such
duties, such person or entity shall, to the extent of snob assignment, have the
same rights and powers and .be subject to the saes obligations and duties As ere
given co and assumed by Declarant herein. Without limiting the generality of the
foregoing. Declarant my aske such assigment " 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 Amendmanta. Except as provided in this Declaration concerning
(a) substitution of other real property as the Renefitted 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 Pottle"
of the Land Cram this Declaration at any tiara and for any reason without the
approval of Grantee.
(b) Net Aooltcabla to�elerant. Notwithstanding anything
herein contained to the contrary. It Declarant reacquires title to the Land or
any portion thereof at any ties after the data hareof and record(s) a notice of
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termination of these Restrictions in the Office of the County Recorder of Orange
County. California, these Restrictions shall comae and terminate and be of ro
further force or offset as to Declarant and such property, effective xe of the
data cf such recordation.
6.7 Notice. All nations, consents, requests, demands sad other
/�
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communications provided for herein shall be In Kiting and shall be dewed to
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bare bean duly given if tad when personally served or forty eigbt (48) hews
after being sent by United States registered mail, return neeipt requested.
postage prepared, to the other party at the following respective a5ftGAMes:
DECLARANT: TIM IRVIM CONPFmf
c/o, IRVUS LAND MANACENEtrr COMPANY
Post Office box I
Newport beach, California 92658 -8904
'
Attention: President /IBAC
'�
GRANTEE: City of Newport beach
1300 Newport Boulevard
�P
Post Office box 1768 -
Newport leach, CA 92659.1768
ry/
i
or at such other address as Declarant or Grantee any designate to the other in
writing in accordance with the provision of this Section.
6.8 r rnnine iw_. This Declaration shall be govarnad by and
construed under the laws of the State of California. -
6.9 Seyerability. Sn the event that any portion Of this Declaration
shall become illegal, n•_11 or void or against any public policy, for any rsseon,
or shall be held by any court of competent Jurisdiction to be illegal, null or
void or against any public policy, the remaining portion of this D&CIA[ALion
shall not be affetred thereby and shall remain in force and offset to the full
extent permitted by law. '-
6.10 Cantlons. The caption wed herein are for co wdeace om1v 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 Atteexnt. This Declaration, including Ubibits attached
hereto which are incorporated herein by this reference, constitutes the satire
agreement between the parties hereto pertaining to the subject natter hereof and
all prior and contemporaneous agreements, representations, negotlations and
undarstesWings of the parties hereto, oral or written, are hereby superseded and
merged herein. The forgoing sentence shall in na way affect the validity of the
Agreement pursuant to which Grantee acquired the Land or any instruments executed
in connection theraw -th.
6.12 Candor 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.
17
IN WITNESS WHEREOF, the undersigned haw executed this Declaration
as of the data written below.
•DECtARARfe CRANT'EE-
THE IRVINE COMPANY. CITY OF NVIPORT SUCH.
a Nlchlgan corporation . California pal Corporation
By:
I : mayor
Its Mere. �.e,�d_ .,�
BY: ATTEST:
Ira 6 d by:
7 Its: ClIFY cieri
O� ?EWE vo AFpH0,911� —rr�=
Ira: Clry Manager
s
App: TO FORM:
Guww +•r
Dy:
TEN: CrLy Attorney
STATE OF.CALIFORNIA )
).as
CODNIY Oe)
on thfsApd"y of Aadin the year 193:� before a, the undarsigaed, a Notary
Public • d for said State, personally =red
and /� _ ;a.. '�1.�� l personally Ww,m to as
7 or proved to ve on the basis of f satisfi tent evidence) to be the persame who
executed the within instrument u�Pe, % and
respectively, on behalf of THE IRVINE COHFANY and acknowledged to me that e
corporation executed it.
WITNESS my hand and official seal.
I�1�Rw�
r�r�
6��aE taV
M„ MTV
amm+ta.m a..00
Notary Publ' c in and f—,7.—.id Sceta
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EXHIBII '1'
LEGAL DESCRIPTION
BENEFITED PROPERTY FOR THE
CITY OF NEWPORT BEACH LIBRARY SITE
Parcel 1 (500 and 550 Newport Canter Drive and Adjacent Land)
That portion of Blcek 93 of Irvine's Subdivision in the City of Newport Beach,
County of Orange, State of Call£ornia, as shown on a amp filed in Book 1, Page
88 of Miscellaeaous Records Maps in the Office of the County Recorder of said
Orange County, described as follow,:
BEGINNING at the easterly terminus of that certain course .hewn as having a
bearing and length of "South 80'14'38' Bast 91.45 feet" in the northerly right -
of -way line of San Nicolas Drive on a sap of Tract No. 6015, filed in Book 239,
Pages 28 through 41 of Miscellaneous Naps in said Office of the County Recorder;
thence along said right line and along the easterly right -of -way line of Newport
Center Drive East, the southerly right -of -way line of Santa Rosa Drive and the
southwesterly right -of -way line of San Joaquin Hills Read, all as shown on said
map of Tract No. 6015 through the following courses: North 80'14.38' Vest 91.45
feet to the beginning of a tangent curve concave northeasterly and having a
radius of 25.00 feet; thence along said curve westerly and northwesterly 38.16
feet through a central angle of 87'26'49" to a point of reverse curvature with
a curve concave westerly and having a radius of 1670.00 feet, a radial line of
said curve from said point bears North 82'47'49' Vest; thence along said curve
northerly 472.13 feet through a central angle of 16'11'54' to a point of reverse
curvature with a curve concave southeasterly and having a radius of 25.00 feet,
a radial line of said curve from said point bears North 81'00117' East; thence
along said curve northerly and northeasterly 38.16 feet through a central angle
of 87'26 '.9'; thence tangent from said curve North 78'27.06' East 69.97 feet to
the beginning of -a tangent curve concave northwesterly and Wing a radius of
825.50 feet; thence along sold eueVe-northeasearly 444.81 feet through a central
angle of 30'52.21'; thence tangent frog Said curve North 47'34.43' East 2.20 feet
to the beginning of a tangent curve concave southerly and having a radius of
25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through
a central angle of 89'17'26' to a point of reverse curvature with a curve concave
northeasterly and having a radius of 6072.50 feet, a radial line of said curve
from said point bears North 46'52'09' Bast; thence along said curve southeasterly
329.29 fact through a central angel of 3'06'25'; thence tangent from said curve
South 46'14'16' East 31.81 feet to the northerly corner of Parcel 1 as shown on
a map filed in Book 13, Page 41 of Parcel Maps in said Office of the County
Recorder; thence leaving sold southwesterly right -of -way line of San Joaquin
Hills Road and along the boundary of said Parcel 1 the following courses: South
44'06.14' Vest 140.00 fact; theme south 45'53'46' East 183.00 feet to the
beginuring of a tangent cwrve concave northerly and having a radius of 25.00 feat;
thence along said curve southeasterly and easterly 39.27 feet through a central
angle of 90'00'00'; theme tangent from said curve North 44. 06414' East 103.60
feet to the beginning of a tangent curve concave northwesterly and having a
radius of 25.00 feat; thence along said curve northeasterly 13.23 feet through
a central angle of 30'19.01' to a non - tangent Intersection with said
southwesterly right -of -way of San Joaquin Hills Read; thence leaving said
boundary and along said right -of -way line South 46'14'16" East 48.72 fact to the
northerly corner of Parcel 1 as shown on a map filed in Book 21, Page 18 of
Parcel Maps in said Office of the county Recorder, said earner being a point in
a non - tangent curve concave southeasterly and having a radius of 25.00 feet, a
radial line of said curve from said point bears South 16'06.05' East; thence
along the boundary of said Parcel 1 the following courses: along said curve
southwesterly 13.00 feet through a central angle of 29'47'41'; thence tangent
from said curve South 44'06.14' Vest 104.09 feet to the beginning of a tangent
curve concave easterly and having a radius of 25.00 fear:; thence along said curve
southwesterly and southerly 39.27 feet through a control angle of 90'00'00';
thence tangent from said curve South 45'53.46• East 166.00 fact to the westerly
corner of Parcel 1 as shown on a map filed in gook 54. Page 23 of Parcel Maps In
said Office of County Recorder; thence leaving the boundary of Parcel I as shown
rsaes. 1
t4601 posarlptim of - w nN ?MpM'
.nUM an 1 .'ch Is, 'M
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on maid amp filed In Book 21. Page IS of Parcel Naps and along the boundary of
?.real 1 as shown on amid asp filed In Back 54. Pago 23 of Parcel Naps South
45'53146- East 68.09 feet to the beginning of a tangent curve coneava westerly
and having a radius of 40.00 foot; theme continuing along maid boundary and said
curve southeasterly 36,39 foot through a central angle of 52'07'23- to the
northwesterly corvar of Parcel 3 as shown on Parcel Rap No. 04-706 filed in Book
192, Pages 1 " 2 of Parcel Maps in said Office of the County Recorder, a radial
line of said curve from said corner bears North 83*46-23- Vast; thence along the
boundary of said Parcel 3 and Parcel 2 " shows, on said Parcel Kap the following
courses: continuing along said curve southerly 26." feet through a central
angel of 37-52-37-; theme tangent from said curve South "'06114- Vast 289.00
foot to the northe"terly, corner of Parcel I as shown On a amp filed in Book 27.
page 43 of Parcel Kaps in said Office of the County Recorder, said carrar being
the beginning of a curve tangent to last said course, concave northerly and
having a radius of 40.00 feat; theme leaving the boundary of said Parcel 2 and
along the boundary of said Parcel I the following courses: &I" said curve
southwesterly and masterly 62.83 feet through a central angel of 90*00�00%
thence tangent from said curve North 45'53146- West 14.11 feet to the beginning
of a tangent curve coneseq southerly and having a radius of 25.00 feet; theme
along said curve northwesterly and "steely 39.27 feet through a central =&Is
of 90'001001; theme tangent from sold curve South "'06'14' Vast M44 foot to
the beginning of a tmSont curve come" menthematorly amd having a radius of
feet
25.00 lFeet; theme along said curve mauth- starly 13.46 to a non-taftlAnt
Intersection with the northeasterly right-of.w&y line of amid San Nicolas Drive
" described In a Grant of Usamment to the City Of Newport Basch r*COrdDd In Book
8987, Page 936 of official Records In said Office of the County Recorder; theme
leaving said boundary of Parcel I and along said right-of-way line as described
In said Grant of Easement and as shown on amid map of Traci No. 6015 the
following courses; North 46'"100- West 92.34 foot to the beginning of a tangent
curve come" southwesterly and having a radius of 950 - 50 feet; theme along amid
curve northwesterly 555-92 feet through a central angle of 33'30'38m to the POINT
.OF BEGINNING.
Parcel 2 (Fashion Island SRuT 9
_pin Cantor)
That portion of Tract 6015, In the City of Newport beach, County of Orange. State
of California. as per oep filed in Book 239, pages 20 through 41, Hiscallazieous
Maps. records of said County. lying within the following described boundary:
commenting at the center line Inter section of Santa Rosa Drive with Newport
Center Drive East as shown on said map; theme south 73A27'06* West 48.00 fact
along the Westerly prolongation of the center line of Said Santa Rosa Drive to
a point on a non-targent curve come". Westerly and having a radius of 1557.00
feet. said point being the True Point of Beginning. a radial to said point beers
North 78'27'06' East. amid curve being concentric with the center line of said
Newport Center Drive Best: thence Southerly 1314.59 feat along amid curve through
an angle of 48 � 22 0 31 0 to the beginning of a compound curve concave, Northerly and
having a radius of 75, .00 feet; thence Westerly 1464.87 fast along said curve,
through an angle of 110'52,24- to the beginning of a compound curve come"
Easterly and having a radius of 1757.00 feat; theme Northerly 1243.07 feat along
said curve through an angel of 40-41-58- to the beginning of a compound curve
concave SomherIv and having a radius of 897.00 fast; theme Easterly 2438.09
feet along said curve through an angle of 155'436576 to the beginning of a
compound curve concave Westerly and having a radius of 1557.00 feet; theme
Southerly 117.30 feet along said curve through an angle of 4*19'10o to the True
Point of Beginning.
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STATE OF CUIPORNIA )
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COMITY OF ORANGE ) n
OA Iargh 19. 1992, before se, the undersigned, a Notary
Public in and for the State, personally appeared PLSL.Hensom,
known to as to be the M wn to M Mayor, Robert L. Wynn, kno to be the
City Manager, and Rends E. Raaaio, knova to so to be the City i
Clerk, on behalf of the CITY OF NESPORT BEACH, which executed the
within Instrument pursuant to governing law and a resolution of its
board of directors and acknowledge to so that the CITV OF NEWPORT
BEAM exaoated it.
WITNESS my hand and official : sea '
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CIALSEN. ry Public in ar mald scame
9BO UNOM ry
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REQUIRE WITS PON SPECIFIC FACILITIES
Description of Specific Facilities: .I f
A free public library and related driveways. acresavoys and loodseaping.
Peaittad Du: 1 r
Public Library and related parking of private passenger automobiles
during the hours ft
Maxlsim Mo. of Buildings:
Minimum Gross Floor Are.',
Maximum Gross Floor At"
Masimim Floef'Ylraa Ratio
Commencement Date:
completion Date:
ow 6:00 a.m. to 11:30 p.m. dally.
1
10.000 square feet*
65.000 square feet*
50 percent
12 months from Effective Date
36 months from Effective Date
e By setting forth any required minima or maximim gross foot area above.
Declarant does not thereby represent or verrant that Buyer shell be able te
devclap the land for such density.
REQUIREMERTS FOR OTnER IMPRDVE@iTS
Those improvements required by Exhibit I to the Exchange Agreeewnt.
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When Recorded Nail To:
THE IRVINE COKPANY
550 Newport Center Drive
Newport Beach, CA 92660
Attention: President/IIXC
Space above thin line tar Racorder's we A.P. No.
SUBORDINATION AGREEMENT
NOTICE; THIS SUBORDINATION. AGREEMENT RESULTS IN YOUR RIM.HTS AND INTERESTS AND
YOUR SUMITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF IONEi PRIORITY
THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
I. PARTIES AND DATE.
This Subordination Agreement (-Agreement-) is sad* this day of
19 by the CITY OF NEVPORT 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. ACRNWIEnCMENTS
Ownar -Iles executed a Declaration of Special Land Use Restriction*, Right
of First Refusal, Mortgage Lion and Option to Repurchase tthe •Declaration')
dated 19_. and recorded on -" as Instrument No.
In the Official Retards 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 sap filed in Book , Pages_ to
inclusive. of Parcel Maps, in the office of the Cowty Recorder
of Orange County (the NLand').
Owner has executed, or is about to execute, certain loan documents ( -Loan
Documents') dated 19 with or in favor of
(-Lander') to obtain
and evidence a lose (the 'Loan -) from Leader in the amomt of $
The Loan Document> 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. Lander 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 eemorialized 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 ccamencement of construction, be approved by TIC, all
In accordance with the provisions of the Los. Documents. and far me other purpose
unless approved by TIC in writing In its sole discretion.
A condition precedent to Larder's agreement to make the Lean Is that the
Deed of Trust shall be and remain at *11 time a lien or tharge upon the Land
prior and superior to certain enforcement rights and remedies of TIC under the
Declaration.
TIC and Owner agree that it to to their mutual benefit that Landar make the
Loan to Owner. This Agreement is made In canatderation of the mutual benefits
agedi WuLtt.
OeOlt 1
a "k.ft a MeareewWta It. Im
Its: mayor
By: ATTEST:
Its:
APPRGV® AS TO FORM:
By:
Its: City Attorney
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' to TIC and Owner resulting from the )man and for other valuable consideration.
the receipt and sufficiency of which is acknowledged by TIC and Oar.
III. SOBOBDINATIOB.
The Wed of Trust and any removals or extensions thereof shall be and
remain at all time a Has or charge on the land prier and superior tm
, I
Dselaront's right of first refusal contained In Article A of the Declaration and
'J
the option to repurchase contained in Section 5.3 of the Declaration.
(collectively, the Iftforrommost Rights'); provided. however, that (1) the
Declaration (including the Enforcement Rigbta) shall be binding upon and
affective against my subsequent Owner or other occupant of the led er any
portion thereof whose title is acquired by foreclosure, trustea'e "Is. deed in
lieu of foreclosure or otherwise as provided in Section 5.7 of the Declatatian.
and (2) any subsequent Owner shall have the Ours rights as provided in Section
'
5.7. Rotwitbstmding anything to the contrary contained in this Agreement.
Leader's foreclosure or similar or related proceeding under the Dead of Trust
shall not extinguish the Declaration or TIC's Enforcement Rights, all of which
shall survive such proceeding and shell be binding upon amy subsequent saner
acquiring title free Leader as stated above.
TV. MISCBLiAMMS
A. Entire Agreement,
This Agreement shall be the whole ad only agreement between TIC ad Ovnet
with regard to the subordination of TIC's Enforcement Rights and remedies under
the Declaration to the lien or charge of the Deed of Trust.
B. Attorneys' Fees.
The prevailing party in any litigation respecting this Agreamel{t shall be
entitled to reimbursement of attorney's fees and costs, whether or set taxable,
imcurred in The—litigation.
'TIC'
THE IRVINE COMPANY. - CITY OR NBNPORT BEACR
a Michigan corporation
Its: mayor
By: ATTEST:
Its:
APPRGV® AS TO FORM:
By:
Its: City Attorney
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STATE OF CALIFORNIA )
L sa
COWNfY OP )
On , 19—,. before m, the underslgnad, a Notary Public in
and for said Steil, personally ►ppeersd
and personally Worn to m (or proved to m cn the
basis of satisfactory evidence) to be the persons who easwted the within
instrument as and on behalf of THE
IRCINE COMPANY, a Michigan corporation, slid ecb.wledged to m that aafd
corporation eaecubd it.
WITNESS ay hand aM official seal
Notary Public in and for said State
STATE OF CAIFORNIA )
).as
COUNTY OF 1
On 19—. before m, the umdereignad, • Notary Public to
and for said State, personally appeared
personally blown to m (or proved to m on the beets of satisfactory evidence)
to be the person ubo executed the within Instrument as Mayor, on behalf of City
of Newport Beech, which executed the within Instrument pursuant to governing In
and a cesolutian'sf Its board of directors and acknowledged to-me that the City
of Newport Beach executed it: -- - . -.
WITNESS 'y hand and official goal
Notary Public in and for said State
epsfLL
Ogden W I
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