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C-3500(A) - Assignment Agreement (for CIOSA Affordable Housing Implementation Agreement)
ASSIGNMENT AGREEMENT • This Assignment Agreement ( "Assignment') is entered into on a fiA�4 (P 2006, by and between The Irvine Company LLC, a Delaware limited liability company, formerly The Irvine Company, a Delaware corporation ( "Company') and the City of Newport Beach, a California municipal corporation and chartered City ( "City's, with reference to the following facts: RECITALS A. Company has offered to City the fee title to certain real property situated at the corner of Pacific Coast Highway and Jamboree Road in Newport Beach, California (the "Dedication Property'). A copy of the Offer of Dedication ( "Offer') for the Dedication Property is attached to this Assignment as Exhibit A. B. Company and Shell Oil Company ( "Shell') are parties to a Temporary License and Remediation Agreement effective on March 1, 1994 (the " Remediation Agreement') that, among other things, requires Shell to remediate the land upon which all or a portion of the Dedication Property is located. A copy of the Remediation Agreement is attached to this Assignment as Exhibit B. C. City has agreed to accept the Offer for the Dedication Property provided that Company assigns its rights to the City under the Remediation Agreement. City has also agreed, pursuant to the CIOSA Dedication Implementation Agreement entered with Company on March 8, 2004, that City will release Company from any potential liability related to the presence of hydrocarbons on, under or adjacent to the Dedication Property from and after the effective date of the Assignment. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants herein contained, and other consideration, the parties agree as follows: 1. Assignment. Effective on the Effective Date (as defined in Section 3 below), Company hereby assigns to City all of Company's right, title and interest in and to the Remediation Agreement insofar as such rights pertain to the Dedication Property. 2. Assumption of Obligations. City hereby assumes all of Company's obligations under the Remediation Agreement as they pertain to the Dedication Property effective as of the Effective Date. Company shall remain responsible for all obligations under the Remediation Agreement prior to the Effective Date, and City shall be responsible for all obligations under the Remediation Agreement with respect to the Dedication Property occurring on and after the Effective Date. 3. Effective Date. This Assignment shall be deemed effective on the date of City's acceptance of fee title to the Dedication Property described in the Offer, as evidenced by the minutes of the Agenda action for the City Council meeting at which such acceptance is approved. JRC130209- 0055\347197.3 4/4/06 0 0 4. Release. Effective as of the Effective Date, City releases and waives all claims and demands against Company arising from or in any way related to any cost, expense, liability, loss, damage, injury or claim of any kind or character to any person or property related to the presence of hydrocarbons (as defined in the Remediation Agreement) on, under or adjacent to the Dedication Property that are attributable to prior uses of the Dedication Property. City acknowledges that the provisions of Califomia Civil Code § 1542 shall apply to this release. California Civil Code § 1542 provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. City expressly waives any rights it may have under California Civil Code § 1542, as well as any other statutes or common law principles of similar effect. 5. Governing Law. This Assignment shall be construed and enforced in accordance with California law. 6. Successors. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors in interest and assigns. 7. Entire Agreement. This Assignment constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between City and Company regarding the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have signed and delivered this Assignment Agreement as of the date first above written. THE IRVINE COMPANY LLC, a Delaware limited liability company By: Jos . D vis Executive Vice President By: Mary W stbrook Assistant Secretary CITY OF NEWPORT BEACH, a municipal corporation and charter city MM DRAW, JRCV0209- 00M347197.3 4/4/06 2 1RC130209.0055%347197.3 4/4/06 EXHIBIT "A" OFFER OF DEDICATION PLEASE RECORD AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 -3884 WITH A CONFORMED COPY TO: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: Brigid McMahon, Legal Dept. (space above this line for recorder's use only) -_ OFFER OF DEDICATION (Bayview Landing Open Space) THIS OFFER OF DEDICATION ( "Offer') is made as of 2006, by The Irvine Company LLC, a Delaware limited liability company, formerly The Irvine Company, a Delaware corporation ( "Offeror' in favor of the City of Newport Beach, a California municipal corporation and chartered city ( "City's, with reference to the following facts: RECITALS A. OFFEROR is the owner of fee title to the real property located in the City of Newport Beach, County of Orange, State of California, described on Exhibit A and depicted on Exhibit B commonly known as "Bayview Landing." Offeror proposes to develop the lower portion of Bayview Landing (the "Lower Bayview Property") and to dedicate two parcels of Bayview Landing for passive public park and open space purposes (the "Dedication Property"). The legal descriptions of the Lower Bayview Property and the Dedication Property are described on Exhibit A and depicted on Exhibit B, and are collectively referred to herein as the "Bayview Landing Properiy.'�. Offeror's development of the Bayview Landing. Property is referred to herein as the "Bayview Landing Project." .B. The Bayview Landing Property is included in and governed by the provisions of that certain .Circulation Improvement and Open Space Agreement by and between City and Offeror's predecessor in interest, The Irvine Company, a Michigan corporation, recorded as Instrument No. 93- 0479122 in the Official Records of Orange County, California ("Official Records ") on July 19, 1993 (the " CIOSA'). C. The conditions to the final map originally filed for the Bayview Landing, Property (the "Map Conditions ") required that Offeror dedicate to City the Dedication Property for open space purposes consistent with the terms and provisions of CIOSA and the Planned Community District Regulations contained in City Council Ordinance No..92 -38 adopted by the City Council of City on September 28, 1992. The dedicated land consisted of Parcels A and B of 30209 -0055\747088.5 4/4/06 Parcel Map 95 -37,. and Offeror previously submitted to City an Offer of Dedication for such land in 1998 (the "Original Offer ") consistent with the requirements of CIOSA. The Original Offer was never recorded. City never accepted fee title to land offered in the Original Offer, and the Original Offer has expired by its own terms. D. Offeror desires to comply with the map conditions affecting the Bayview Landing Property by resubmitting an offer of dedication for the Dedication Property. However, due to events occurring after the expiration of the Original Offer, changes to the form and content of the offer of dedication for the Dedication Property are required. First, the description of Parcel A contained in the Original Offer has been changed pursuant to Lot Line Adjustment No. LA2003 -011, recorded on March 19, 2004 as Instrument No. 2004000225274 in the Official Records (the "Lot Line Adjustment "). Second, the California Coastal Commission ( "CCC") has imposed conditions in its Notice of Intent to Issue Permit (the "Permit Conditions ") regarding the development of the Bayview Landing Project and the form and content of the offer of dedication for the Dedication Property. The Permit Conditions have been memorialized in a Deed Restriction that was recorded on May 21, 2004 as Instrument No. 2004000457477 (the "Deed Restriction ") against all of the Bayview Landing Property, and this Offer (including but not limited to all exceptions and reservations in favor of Offeror and the Covenants relating to Offeree's use of the Dedication Property) is subject to the terms of the Deed Restriction. Third, City and Offeror entered the " CIOSA Dedication Implementation Agreement" on March 8, 2004, which contains conditions relating to City's obligation to accept Offeror's offer of dedication for the Dedication Property. E. In order to satisfy the requirements of the various conditions and agreements referenced above, Offeror now desires to dedicate the Dedication Property to City and City desires to accept the Dedication Property subject to the terms and conditions of this Offer. OFFER TO DEDICATE NOW, THEREFORE, FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Offeror hereby irrevocably offers to dedicate the Dedication Property to City, in fee, subject to the following terms and conditions: 1. TERMINATION OF ORIGINAL OFFER; SATISFACTION OF CIOSA CONDITIONS City and Offeror hereby confirm that (a) the Original Offer has terminated by its own terms and is of no further force and effect, and this Offer contains all terms and conditions regarding the dedication of the Dedication Property to City, and (b) the conditions contained in the CIOSA Dedication Implementation Agreement relating to City's obligation to accept this Offer have been satisfied. 2. EXCEPTIONS AND RESERVATIONS The Dedication Property shall be accepted by City subject to the following exceptions and reservations in favor of Offeror, its successors and assigns, together with the right (without 30209 - 0055347088.5 4/4/06 - 2 the consent of City or any other owner of an interest in the Dedication Property) to grant and transfer all or a portion of the same: a. Oil and Minerals. Any and all oil, oil rights, minerals, mineral rights, natural gas rights and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may, be within or under the Dedication Property, together with the perpetual right of drilling, mining, exploring and operating therefor and storing in and. removing the same from. the Dedication Property or any other land, including the right to whipstock or directionally drill and mine from lands other than the Dedication Property, oil or . gas wells, tunnels and shafts into, through or across the subsurface of the Dedication Property and to bottom such whipstocked or directionally drilled wells,. tunnels and shafts under and beneath or beyond the exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen and operate any such wells or mines; but without, however, the right to drill, mine, store, explore or operate through the surface or the upper 500 feet of the subsurface of the Dedication Property. b. Water. Any, and all water, water rights or interests therein, whether surface or subsurface, appurtenant or relating to the Dedication Property, or owned or used by Offeror in connection with the Dedication Property (no matter how acquired by Offeror), whether such water rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the right and power to explore, drill,.redrill and remove the same from or in the Dedication Property, to store the same beneath the surface of the Dedication.Property and to divert or otherwise utilize such water, rights or interests on.any other property owned or leased by Offeror; but without, however, any right to enter upon or use the surface of the Dedication Property in the exercise of such. rights. C. Future Utilities. Non - exclusive easements in gross on, over, under and across the Dedication Property for the installation, emplacement and maintenance of electric, telephone, cable television, water, gas, sanitary sewer lines, drainage facilities, pump stations, utility access roads, and/or any other utilities (collectively, "Utilities' as. necessary in connection with the development of the Lower Bayview Property or other property owned by Offeror in the. vicinity of the Dedication Property, which utility easements are collectively referred to herein as the "Utility Easements," together with the right to enter upon the Dedication Property (without unreasonably interfering with City's reasonable use and enjoyment thereof) in order to service, maintain, repair, reconstruct, relocate or replace any of such facilities or improvements. d. Habitat Mitigation. Non - exclusive easements in gross on, over, under and, across the Dedication Property for the purpose of habitat preservation, replacement, enhancement, creation and maintenance and other environmental mitigation purposes (collectively, "Habitat Mitigation', together with the right to enter on the Dedication Property (without unreasonably interfering with City's reasonable use and enjoyment thereof) to perform such Habitat Mitigation as may be legal and appropriate to mitigate for impacts incurred in connection with development of other property owned by Offeror in Newport Beach, California. e. Temporary .Construction Access and Staging. Non - exclusive easements on, over and across the Dedication Property in connection with construction access 30209 -0055347088.5 4/4/06 3 and staging related to the development of the Lower Bayview Property; provided, however, that the reserved easements under this subsection shall expire at such time as the Notice of Completion for the Lower Bayview Property is filed in the Official Records. 3. ADDITIONAL TERMS AND CONDITIONS. The Property shall be accepted by City subject to the following: A. . Taxes and Assessments. General and special real property taxes and supplemental assessments, if any, for the current fiscal year; provided, however, that Offeror shall pay for (i) any such taxes and assessments applicable to the Dedication Property prior to the date of recordation of this Offer, and (ii) any'assessments, special taxes or other payments arising from bonds, contracts, or liens created by, through or as a result of the efforts or activities of Offeror; B. Encumbrances. All exceptions to title contained in Preliminary Report No. 06712600 - 03, dated as of March 24, 2006, issued by Commonwealth Land Title Insurance Company, a copy of which is attached hereto as Exhibit C, and any and all other covenants, conditions, restrictions, reservations, rights, easements and other matters of record, apparent by reasonable inspection or known to City; C. Customary Title Exceotions. Usual and customary, exceptions to title insurance consistent with ALTA policies with Regional Exceptions (Standard Coverage) issued by Commonwealth Land Title Insurance Company in Orange County, California; D. Condition of Property. The requirement that City accepts the Dedication Property (a) without any warranty concerning suitability for City's intended use of the Dedication Property, and (b) without any warranty concerning the absence of hazardous or toxic materials. City acknowledges that Offeror has not made any representations or warranties concerning the condition of the Dedication Property except as expressly contained in this Offer. E. Covenants. The following covenants, conditions and restrictions (collectively, the "Covenants', which shall remain in full force and effect for the period of time designated below from and after the date of City's acceptance of this Offer, unless terminated or modified as hereinafter provided. This conveyance of the Dedication Property is made by Offeror and accepted by City upon and expressly subject to these Covenants. Upon the occurrence of any breach or violation of any of such Covenants without being cured within the times provided below, Offeror shall be entitled to avail itself of the remedies specified below. The Covenants are hereby declared and agreed to be part of a general plan for the purpose of assuring the orderly and harmonious development and operation of improvements on the Dedication Property and the enhancement and protection of the value, desirability and attractiveness of certain property owned by Offeror described on Exhibit "D" attached hereto (the `Benefitted Property'. Offeror shall have the right by duly recorded amendment hereto or separately recorded instrument, in each case executed only by Offeror, to imilaterally substitute for or add to the Benefitted Property any real property in the County of Orange, California, which Offeror owns as of the date of acceptance of this Offer and continues to own through and after the date of such substitution or addition. The Covenants shall. run with the Dedication Property and be binding 30209-0055\347088.5 4!4!06 4 upon any person or entity who acquires any right, title, or interest in or to any portion of the Dedication Property and shall benefit the Benefitted Property and be enforceable by Offeror and any Covenant Transferee (as defined below). It is intended that the dominant tenement shall be all the Benefitted Property, and that the servient tenement shall be all the Dedication. Property. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the. Dedication Property is and shall be conclusively deemed to have consented and agreed to every covenant, condition and restriction contained herein; whether or not any reference to this instrument is contained in the instrument by which such person acquired an interest in such Dedication Property. L Covenant 1:. Use of Property. The Dedication Property shall be used as a passive public park characterized' by low intensity uses consistent with the intent and purpose contained in the Planned Community District Regulations for "Park" uses contained in City Ordinance No. 92 -38, including but not limited to an asphalt bike path; park benches, fencing and landscaping (the "Permitted Uses"): It is intended that the physical nature of the park be a natural setting with unobtrusive additions and minimal lighting (some low- level lighting may be allowed for security purposes). All landscaping, coastal sage scrub restoration, irrigation and other practices . related to installation and/or maintenance of native and other plants within the Dedication Property shall be performed consistent with the requirements of the Deed Restriction in favor, of the California Coastal Commission recorded against the Dedication Property. Nothing. contained herein shall preclude City from grading the Dedication Property to improve the view of Newport Bay and its surrounding area from Pacific Coast Highway, subject to compliance with the conditions of the Deed Restriction. Active recreation uses such as community parks are not allowed. In no event shall City install or permit the installation of any Cellular Tower(s) on the Dedication Property. For purposes of this Offer, "Cellular Towers" shall mean any type of aerial or aboveground towers or facilities related to cellular telephone services, or the transmission of communications or information. The Dedication Property shall not be sold, leased or used for any commercial, office, retail commercial, industrial, or residential activities of any nature, despite the fact that City or the Dedication Property may benefit from the proceeds, profits, rent or other payment from or related to any such prohibited activity. ii. Covenant 2: Review of Improvement Plans. With respect to any improvements proposed to be constructed on, across, under or above the Dedication Property by City, City shall (a) prior to the award of any design contract for the proposed improvement, give Offeror thirty (30) days to review and comment on the proposed improvements and design plan, and (b) after the design plans have been completed and prior to award of the construction contract for such improvement, give Offeror sixty (60) days' prior notice for review and comment regarding City's designed improvements. After receipt of Offeror's comments for each stage of review, City shall give reasonable consideration to, any suggestions that Offeror provides to City regarding such proposed improvements. iii. Covenant 3: Maintenance and Repairs. City shall maintain the " Dedication Property in safe condition and in accordance with applicable laws, ordinances 30209 -00551347088.5 4/4/06 5 and regulations applicable to the Dedication Property, and shall keep the Dedication Property in attractive condition, free from garbage. and debris. iv. Covenant 4: No Transfer of Propertv. City acknowledges that upon acceptance of the Dedication Property, it shall not thereafter sell; lease, exchange or in any other way transfer or convey all or any portion of its interest in the Dedication Property to a third party without the prior written approval of Offeror, which may be granted or withheld in Offeror's sole discretion; provided, however, that City may (A) transfer an interest in any portion of the Dedication Property in connection with a utility installation required in connection with City's permitted use of the Dedication . Property; (B) transfer any portion or all of the Dedication Property to another public agency, maintenance district or non -profit corporation or entity that shall operate and maintain such portion or all of the Dedication Property in accordance with the Permitted . Uses specified in this Offer; and (C) transfer any portion of the Dedication Property acquired by another entity under the power of eminent domain. V. Covenant 5: No Parking Facilities Requirement. City shall not require Offeror, to provide, directly or indirectly, any parking facilities for use of the Dedication Property. Nothing contained in this Covenant 5 shall be deemed to relieve Offeror of its obligations to provide parking spaces for the Lower Bayview Property as specified in the Permit Conditions attached to the Deed Restriction. 4. MATTERS RELATED TO COVENANTS A. Amendment. The Covenants may be amended only by mutual agreement of Offeror, any Covenant Transferee and City. Any amendment must be recorded in the Official Records. B. Term. The Covenants shall run with and bind the Dedication Property and shall inure to the benefit of and be enforceable by OFFEROR, its successors and assigns, in .perpetuity, unless OFFEROR records a declaration terminating the Covenants. C. Default and Remedies. Because of the unique nature and scope of Offeror's development of the Benefitted Property, as well as the amount of planning, effort and time expended by Offeror in reliance upon the anticipated use of the Dedication Property and the Benefitted Property, monetary damages will not provide an adequate remedy for the damage to Offeror's planning efforts or development resulting from a breach of the Covenants. Therefore, in the event of any breach, violation or failure to comply with any of the Covenants that has not been cured within thirty (30) days after written notice from Offeror to do so (or if any such breach, violation or failure cannot be fully cured within such thirty (30) day period, then upon failure of City to commence such cure within such period and thereafter to diligently complete such cure to Offeror's reasonable satisfaction), Offeror in its sole and absolute discretion may enforce any other rights or remedies to which Offeror may be entitled by law or equity, other than the remedy of damages. It is recognized that a violation by City of one or more of the Covenants may cause Offeror to suffer material injury or damage not compensable in money and that Offeror shall be entitled to bring an action in equity or otherwise for specific performance to 30209- 0055v4708s.5 414/06 6 0 1 1 • enforce compliance with the,Covenants or an injunction to enjoin the continuance of any such breach or violation thereof. D. Waiver. No waiver by Offeror of a breach of any of the Covenants and no delay or failure. to enforce any of the Covenants shall be construed or held to be 'a waiver of .any succeeding.or preceding breach of the same or any other restrictions or conditions. No waiver.of any breach or failure of any of the Covenants shall be implied from any omission by Offeror to take any action on account of such breach or failure if such breach or failure persists or is. . repeated, and no express waiver. shall affect a breach or failure other than as specified in said waiver. The consent or approval by Offeror to or of any act by City requiring Offeror's consent or approval shall not be deemed to waive or render unnecessary Offeror's consent or approval to or of any subsequent similar acts by City. E. Expiration of Covenants as to Transferred Parcels. In the event that any portion of the Benefitted Property is conveyed by Offeror to a third party (each parcel of the Benefitted Property so conveyed is hereinafter referred to as a "Transferrer) Parcel', the Covenants shall cease to benefit the applicable Transferred Parcel(s) unless the deed to such Transferred Parcel(s) from Offeror to the transferee or a separate recorded document executed by Offeror expressly assigns to the transferee the benefits of the Covenants that.run with the Transferred Parcel(s) by specific reference to this Agreement (general references to appurtenances or rights related to the acquired land will not suffice). Any owner of any Transferred Parcel(s) that has been so . assigned the ongoing benefit of the Covenants hereunder is referred to herein as a "Covenant Transferee. ". F. Cost of Enforcement. In the event any declaratory.or other legal or equitable action or proceeding shall be instituted between Offeror and City to enforce any provision of these Covenants, the party prevailing in such action shall be entitled to recover, from the losing party or parties, its costs and expenses (including, without limitation, court costs and reasonable attorneys' fees). 5. - MISCELLANEOUS A Effect of Acceptance. Approval as well as acceptance by City of this Offer shall constitute City's agreement to be bound by all of the terms, conditions, restrictions, exclusions and reservations included in this Offer. B. Modification of Property Boundaries. In order to accommodate open .space management objectives, topographic characteristics of the Property, final road alignments, adjacent development of the senior housing site, and other related matters, adjustments to the Property, boundaries may be made by Offeror after the review and approval of such adjustments by City, which approval may not be unreasonably withheld provided that such adjustments are consistent with the general purposes and intent of this Offer and that any approvals from other governmental agencies with jurisdiction are, obtained. Each of the parties shall cooperate with each other and perform such acts as are necessary to give effect to such adjustments. C. Notices. All notices, consents, demands, requests and other communications provided herein shall be in writing and shall be deemed to have been duly given if and when 30209 -0055\347088.5 - 4/4/06 7 personally served or 48 hours after being sent by United States registered mail, return receipt requested, postage prepaid, to the other party at the following respective address: If to Offeror: The Irvine Company LLC . 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel If to City: City of Newport Beach . Public Works Department 3300 Newport Boulevard, (P.O. Box 1768) Newport Beach, CA 92658 -8915 Attn:: City Engineer and to: City of Newport Beach City Attorney's Office 3300 Newport Boulevard, (P.O. Box 1768) Newport Beach, CA 92658 -8915 Attn: City Attorney or at such other address as the Offeror or City may designate to the other in writing. D. . Captions. The captions used herein are for convenience only and are not apart of this instrument and do not in any way limit or amplify the scope of intent of the terms and provisions hereof. E. Attachments. This Offer includes the following exhibits, which are attached hereto and made a part hereof: Exhibit A: Legal Descriptions of Dedication Property and Lower Bayview Property Exhibit B: Depiction of Dedication Property and Lower Bayview Property Exhibit C:. Preliminary Title Report on Dedication Property Exhibit D: Description of Benefitted Property F. Compliance with Law and Satisfaction of Obligations. This Offer is made expressly upon the understanding that this Offer is in compliance with and fully satisfies all lawful enactments and conditions of the City requiring an offer of dedication for the Dedication Property in relation to the Bayview Landing Project. If it is determined by City or any court of law or equity at any time following execution of this Offer that this Offer fails to meet that understanding, then Offeror shall have the absolute right to declare ' this Offer void, and this Offer shall thereafter have no further force and effect. In that event City shall, promptly after receipt of Offeror's request, deliver to Offeror a recordable quitclaim of this Offer, which duty shall survive Offeror's written election voiding this Offer. 30209 - 0055\347088.5 4 /4106 . 8 G. Binding Effect. Except as otherwise provided herein, all terms, conditions, restrictions; exclusions and reservations of this Offer, and the acquisition of all or any portion of the Dedication Property by City's acceptance thereof, shall be binding upon and inure to the benefit of City and Offeror, and their respective successors and assigns. IN WITNESS WHEREOF, Offeror has executed this Offer as of the date first set forth above. OFFEROR THE IRVINE COMPANY LLC, a Delaware limited liability company By: Joseph D. Davis Executive Vice President By: Mary Westbrook Assistant Secretary 30209 -0055\347088.5 4/4/06 9 Certificate of Acceptance for Recordation by City of Newport Beach City hereby consents to the recordation of this Offer and concurs that this Offer complies with the requirements of the CIOSA and the map conditions regarding development of the Bayview Landing Project. The City is also, at this time, accepting the property interest being offered by this Offer. Dated: ;7 9, �. Approved as to form: By: Robin Clauson, City Attorney ATTEST: City Clerk By: e Homer Bludad City Manager 30 20M055\347088.5 4/4/05 10 STATE OF CALIFORNIA ) ss.. COUNTY OF ORANGE ) On 2006, before me, Notary Public, personally appeared Joseph D. Davis and Mary Westbrook, personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she/they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On 2006, before me, Notary Public, personally appeared Homer Bludau, personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal Notary Public (SEAL) 30209 -00555347088.5 4/4/06 - II EXHIBIT "A" LEGAL DESCRIPTIONS OF DEDICATION PROPERTY AND LOWER BAYVIEW PROPERTY The Bay-view Landing Property consists of the following parcels of real property in the City of Newport Beach, County of Orange, State of California: Dedication Propert v: Parcel A as shown on Exhibit `B" attached to Lot Line Adjustment No. LA2003 -011, recorded March 19, 2004 as Instrument No. 2004000225274, of Official Records, in the Office of the County Recorder of said County. Parcel B of Parcel Map No. 95 -137, as shown on a map filed in Book 305, Pages 30 and 31 of Parcel Maps, in the Office of the County Recorder of said County. Lower Bayview Property: Parcel 1 as shown on Exhibit `B attached to Lot Line Adjustment No. LA2003 -011, recorded March 19, 2004 as Instrument No. 2004000225274, of Official Records, in the Office of the County Recorder of said County. Exhibit "A" 30209 -0055047088.5 4/4/06 Page 1 of 3 0 ,. roaxr wro uoeson s Imm _ Y L Q INt;N6 Y .Crl rH. xRm'RCL S,nr W vwL N /9E11 AW311 !' nii nmr M al9+.c \.ot.\mr xCi n ®. w ! a•. - an em - �6p 10 ±orNa r wl rrr. SaCw'itL xtwr M ru iia saa NAw10 - rPf °°' SEE oE[i\E 'c LEFT—. .. p .arNrs ax LC.[ a w Na Z.w M w nNxp' WW tw. � • -- _ M s oiuon5 wlm a �m tc sr m a slr twwr afv ovs H11A M ' � NxvNAt a auoaw 1 v 4 ee05 ar a.\E� RlAt1 na1K- 51 n ,+op\ne w[m ow. rn rtma a s.im' y>,+y wys aNwQ Imm . E) Y✓raTi ew "rm emo a 9FAT ib /n-V. Wass anwr¢ wlm. Ca r J }' _ p. � i r0+d Nllwe, 'j rM01151 WrS A•B ME nETSe,+P!.TI nU�Wri.G aTeS. Y3 ��� ql N 4Y -1 \t. P6 fipr\e �1 XT' \' b'O Nc 4+n Nr 1�4 RAs 3yb+r .+Nmw. RCit:e 8""'1 - a a / tr' ^ Oi EAIi . PARCEL B- h.127 ic 13 ' c DETAIL ' . �� a�19 S. %1 , k 4- -Z b - 4n tvlSwl B-SS OF BVANCS 4 tr 1 ac r -im y M TMIA 4\Tn IOp\ wE e� _a UC IfMN YrrQM awR �� p j NI W L-t\I, w w-w SIwY ; e "ZIT � L M RttM 3ME M ar4 a M MrH mNR Pm[rR 3 m �m mn ulf f ' 41� Kw - N ryw -151. r - W1UY STA1p4M 5 1 r \% ; C mQ�\4f 4xAN IILIDI AC Nqd 31 M WIPM LN6M f9e11cQ0 �f /x��} \��y(� ? .� Y.f R n35 t3v I,nly3 wra0. n.r vs rnwwtw Nt oyNV.[ saw a ' \-\ ` �g NAM Y( aCtM! w� OnPxa[ ra1EV. A ®Nn Eq x4btl ILL)ftl - fi .( � RINM OSSTCL n enilwY 'v -SEE DETAIL k' MLW BAN - ��hR trf yy Y �5 Y DETAIL A' Nu ;AY,eFd sv -. � R3 95/39 -43. - y stn C4Y• 4. lalla 11 /! .YLY 0.Y. SIW� F \rtror i. n!' PARCEL A (9.990 Ac) • 3n1. / p orwrtlrt i/A.or nms R5� =�3g �lSr'r�Y r 2Y& mK'ti VIt. nITd9'E SuN "��. Z r xb _ rp ns \ry» -V EASINEN[ NOTES Q" mrAtm N ems.[ v Iw6[�"nmR 5°nk` nwaso. °Ma'p -� 1' of - arR[ awn/ Ar \� ' ® otio! rn r�on. Wn w.YL ana w snna iiv nsMelwrE N9 yr��1� N.29n't rlrepaQ wvm n B t0.'lIN YNYD]I vmc5ln. s.' w rs...rr ,uv, N?tmwP wtosa ,a Iwr . eoM r,w r.E w4 a arcs �� ' ©- 4�mm5�naa�wnt rp m�(�wn� . QO MpN61 ISW 19C RRVp M YIaUK Rne�i Y6(ATU N - r M an a iNNenl wins . 3as 3 RESM 1041 . IMD MOt9 ZNr'R YIX NCpC. sNY3 IM/ M IY. N rN � 7m0 1. uE r11P�wb Na zwcv. IM[ as ,arewNa twm, lan ' � � v3 wrr Nx m manor Nms - [ mwssnn isy9 yp j ( PARCEL 1 '94�NVNIIJNO Maims J0 NOISIA10ons lVOO'I HIM A-Id WOO rp3t�ar 6 om t -nea s Eir 2 or 2 wars P AR Il S3 d 3 3d3 35fT 39 Oif10Hump" 41%1 i'1� �6` '. �=2 naren vn e� Iwo/ �e+swN i -31WOr i -,n-0r w a urtN 2 NSn woflpc off 4 w nvb�r wleN1(t ^� �,b `q Sl` }�"a' .Na 9Yt31 IN THE CITY OF NEYiPORT. BFACK' COUNTY OF ORANGE . - ' .. rout n'wlls' t ,..o L9rs A sra e taw .csrxc xoas c STATE OF CALIFORNIA � - MO 1 Ma S wM m [Wn IES: tyre p' AOA"S - S.MMTER. CIVIL 60KEETUNO. NIC. i, RX-E 21687 mpivnoodV/a�wNt N! a rw rr rraw rE OE OF SRNY WY, 199 - AF' qq ? 0 ,. roaxr wro uoeson s Imm _ Y L Q INt;N6 Y .Crl rH. xRm'RCL S,nr W vwL N /9E11 AW311 !' nii nmr M al9+.c \.ot.\mr xCi n ®. w ! a•. - an em - �6p 10 ±orNa r wl rrr. SaCw'itL xtwr M ru iia saa NAw10 - rPf °°' SEE oE[i\E 'c LEFT—. .. p .arNrs ax LC.[ a w Na Z.w M w nNxp' WW tw. � • -- _ M s oiuon5 wlm a �m tc sr m a slr twwr afv ovs H11A M ' � NxvNAt a auoaw 1 v 4 ee05 ar a.\E� RlAt1 na1K- 51 n ,+op\ne w[m ow. rn rtma a s.im' y>,+y wys aNwQ Imm . E) Y✓raTi ew "rm emo a 9FAT ib /n-V. Wass anwr¢ wlm. Ca r J }' _ p. � i r0+d Nllwe, 'j rM01151 WrS A•B ME nETSe,+P!.TI nU�Wri.G aTeS. Y3 ��� ql N 4Y -1 \t. P6 fipr\e �1 XT' \' b'O Nc 4+n Nr 1�4 RAs 3yb+r .+Nmw. RCit:e 8""'1 - a a / tr' ^ Oi EAIi . PARCEL B- h.127 ic 13 ' c DETAIL ' . �� a�19 S. %1 , k 4- -Z b - 4n tvlSwl B-SS OF BVANCS 4 tr 1 ac r -im y M TMIA 4\Tn IOp\ wE e� _a UC IfMN YrrQM awR �� p j NI W L-t\I, w w-w SIwY ; e "ZIT � L M RttM 3ME M ar4 a M MrH mNR Pm[rR 3 m �m mn ulf f ' 41� Kw - N ryw -151. r - W1UY STA1p4M 5 1 r \% ; C mQ�\4f 4xAN IILIDI AC Nqd 31 M WIPM LN6M f9e11cQ0 �f /x��} \��y(� ? .� Y.f R n35 t3v I,nly3 wra0. n.r vs rnwwtw Nt oyNV.[ saw a ' \-\ ` �g NAM Y( aCtM! w� OnPxa[ ra1EV. A ®Nn Eq x4btl ILL)ftl - fi .( � RINM OSSTCL n enilwY 'v -SEE DETAIL k' MLW BAN - ��hR trf yy Y �5 Y DETAIL A' Nu ;AY,eFd sv -. � R3 95/39 -43. - y stn C4Y• 4. lalla 11 /! .YLY 0.Y. SIW� F \rtror i. n!' PARCEL A (9.990 Ac) • 3n1. / p orwrtlrt i/A.or nms R5� =�3g �lSr'r�Y r 2Y& mK'ti VIt. nITd9'E SuN "��. Z r xb _ rp ns \ry» -V EASINEN[ NOTES Q" mrAtm N ems.[ v Iw6[�"nmR 5°nk` nwaso. °Ma'p -� 1' of - arR[ awn/ Ar \� ' ® otio! rn r�on. Wn w.YL ana w snna iiv nsMelwrE N9 yr��1� N.29n't rlrepaQ wvm n B t0.'lIN YNYD]I vmc5ln. s.' w rs...rr ,uv, N?tmwP wtosa ,a Iwr . eoM r,w r.E w4 a arcs �� ' ©- 4�mm5�naa�wnt rp m�(�wn� . QO MpN61 ISW 19C RRVp M YIaUK Rne�i Y6(ATU N - r M an a iNNenl wins . 3as 3 RESM 1041 . IMD MOt9 ZNr'R YIX NCpC. sNY3 IM/ M IY. N rN � 7m0 1. uE r11P�wb Na zwcv. IM[ as ,arewNa twm, lan ' � � v3 wrr Nx m manor Nms - [ mwssnn isy9 yp j ( PARCEL 1 �p rp3t�ar 6 om t -nea teQS t ,t6trt io161 - naren vn e� Iwo/ �e+swN i -31WOr i -,n-0r �•@4 woflpc Ntb{ • wleN1(t ^� �,b `q Sl` }�"a' i twlvl r�M ui TR 11937 p; $� MM 656/24 -29 J * �p rp3t�ar 6 om t -nea teQS t ,t6trt io161 - naren vn e� Iwo/ �e+swN i -31WOr i -,n-0r Iqp ar a I[rvon NOI w woflpc e/' RWfC 31/t YY6 rN 1R .I:a,rc err twlvl r�M ui EXHIBIT a.A.. CITY OF NEWPORT BEACH LOT LINE ADJUSTMENT LA 2003 -011 (MAP) OWNERS EXISTING PARCELS PROPOSED PARCELS AP NUMBERS REFERENCE NUMBER THE IRVINE, COMPANY, A DELAWARE. CORPORATION 440 - 132 -58 PARCEL A THE IRVINE COMPANY, A DELAWARE CORPORATION 440 - 132 -57 PARCEL 1 SHEET 1 OF ti� CURVE OATH TABLE NOTE: Zpp SEE SHEET 2 FOR PLOTTED EASEMENTS 'AND EASEMENT REFERENCES L4 "pgenweur ,0 0 LAND S"', r6,, t 7.3 z C6 �Q �5 L2 L5 ti• a a x , PAR 10' 'A' 10.570 acres N497,342 "Wl w 5362' j PARM f - N7455"25'1 50.10' L15 ? �41 \" PAR L MAP Mo. 95'' H6 L2,7 -.L6 - _ PROPZM PARCEL LW£- - 121 - L7 - C7 N79744 L20 z. 68.2E N0� TO SCALE �.?`•° N7404'6 u @ 24.9; C8_ S3t_ ?£CORD DATA NOTE.• 83.35' 253.84' 4 T SHOWN HEREON IS RECORD PER S343907'W 5344156' 4RCEL MAP No. 95 -137 P.M.B. 305 - 4GES 30'& 31 OF PARCEL MAPS 'CORDS OF ORANGE COUNTY JAMBOREE 3 >- CURVE DELTA RADIUS I LENGTH Cl 527258 97.50 88.86' C2 744 54 O6' 147.50' 115.59 . C3 20 -0335' 146.50 51.99' C4 2659043" 8.250' 3934' C5 20'44'43' - 125.00 45.26 C6 34'07'26 9 .00' - 54.79 C7 00'4721' 6012.00' 82.81' CB 672J24' 111.43' 131.06' C9 175108' 165.00 51:72' CIO 067854' 49Lt 00 54.01' C12 527256" 8'50' 7519' Ci2 3156'49' }06.00' 59.10 CIJ 4454 Q6" 16250' 12735 C14 3953:19" 79.00'. 55:01' C15 - 400232' 141.00' 98.54' C16 . 44 04'19' 50.00' M 46' C17 287156' 59.35 1 2931' C18 895954' 15.00' 1 23.56' Ct9. 0151'44 490.D0' 15.93' C20 605226' 20.46 21.74' C21 42'41'40 27.76 20.68 C22 4772'23 102.50 64.75 RADIAL DATA TABLE RADIAL BEARING I RADIUS 81 N733258'£ 106.00 - RI H71-07'15 E' 59.35' R2. S7430'13'E - R3 S41 VO56 V . - R4 N777T47E 3L82 R5 $284601'W 1. 111.45' Exhibit "A" Page 3 of 3 AS DESCRIBED ON THE A77ACHEO EXHIBIT A' AND BY THIS REFERENCE MADE A PAR. T HEREOF. - UNE DATA MME LlAf BEARING I DISTANCE Ll N073013E 60.61' L2 N784254 E 19.42'. L3 S57D9'40 E .29.31' L4 N 530'33 "W 4765' L5 N141401E- 3L82 L6' S355242W 111.45' 0 5355242 W 119.75 18 - SJJ70'55'W 156.09 L9 N073013f 7746.70' L10 N59-43'11"E - 8.67 Of N0730'13'E 80.62 12 M52-24'19",- - 7751 L13 - N37'J1 JO "W 12 &23 714 534.4156'W 55.00' L15 N5578 04'W 66.00' -T T6- 55538 41 E 181.00' L17 N34-21-19 -E f2.67, L18 S5538'4t E 64.46' L19 N335233'E 71.51'.. L20 5J55242'W 3.46 L21 'SJ552'42W 220.96' 722 53552'42 "W 34D.7r L23 N5410718'W 6.00' L24 S654934'W' 66.12 L25. S46- 43'16W . 54.20 NEWPORT PAIR= Xf OUN£S 459 _ LJ1 Cl Ns9gJ C2 L C? .�r6S. &A7E ? C73 PCC N p(!$771JG PARCEL if U7 1 q . ik w ti PARK 7 L79 �. q�. a M 4.366 acres I. W - �1 . 3p5/30"31_ n h .20 RC • M.H. 1 ALRSj PARCEL ' C22 1171{ P.O.C. I ROAD Pt ARMLS' i d EXHIBIT "B" DEPICTION OF BAYVIEW LANDING PROPERTY LEGEND DEDICATION PROPERTY Q LOWER BAYVIEW PROPERTY PARCEL B P.M. 95 -137 i �0 1 � 1 i x I c+� 0 PARCEL i � LLA LA 2003 -011 I I � 1 I j I — .— .__.. — JAM80REE ROAD � — 30209 -0055\347088.5 4/4106 Commonwealth Land Title Company 28 Executive Park Suite 300 Irvine, CA 92614 Phone: .(949) 885 -2800 Irvine Community Development Company Our File No: 06712600 - 03 550 Newport Center Drive Sr. Title Officer: Jim Prasch Newport Beach, CA. 92660 Phone: (949) 885 -2882 Fax: (949) 885 -2976 e -mail: jprasch @landam.com Attn: Terry Halpern Your Reference No: Bayview Landing Property. Address: Vacant Land, Newport Beach, California PRELIMINARY REPORT Dated as of March 24, 2006 at 7:30 a.m. In response to the above referenced application for a policy of title insurance, Commonwealth Land Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said policy forms. The printed Exceptions and Exclusion from the coverage of said Polity or Policies. are set forth in Exhibit B attached. Copies of the Policy forms should be read. They are. available from the office which issued this report. This report (and any supplements or amendments hereto) is issued solely fora the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. Please read the exceptions shown or referred to below and the exceptions and exclusions... set forth in Exhibit B of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land. CLTA Preliminary Report (Rev. 1 -1 -95) Page 1 File No: 06712600 • SCHEDULE A The form of policy of title insurance contemplated by this report is: CLTA Standard Owners ALTA Loan 1992 The estate or interest in the land hereinafter described or referred to covered by this report is:. A FEE Title to said estate or interest at the date hereof is vested in: The Irvine Company LLC, a Delaware limited liability company The land referred to herein is situated in the County of Orange, State of California, and is described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF Page 2 EXHIBIT "A" All that certain real property situated in the County of Orange, State of California,, described as follows: PARCEL 1: Parcel A as shown on Exhibit "B" attached to Lot Line Adjustment No. LA 2003 - 011, recorded March 19, 2004 as Instrument No. 2004000225274, of Official Records. PARCEL 2: Parcel B of Parcel Map No. 95 -137, as shown on a map filed in Book 305, pages 30 and 31 of Parcel Maps in the office of the County Recorder of said County. Assessor's Parcel Number: 440 - 132 -59 / 440 - 132 -58 Page 3 File No: 06712600 SCHEDULE B At the date hereof Exceptions to coverage in addition to the printed exceptions and exclusions in said policy form would be as follows: A. Property taxes, including general and special taxes, personal property taxes, if any, and any assessments collected with taxes, to be levied for the.fiscal year 2006 - 2007 which are a lien not yet payable. B. Property taxes, including general and special taxes, personal property taxes, if any, and any assessments collected with taxes, for the fiscal year 2005 -2006 1st Installment: $57.94 Paid 2nd Installment: $57.94 This amount is valid until April 10, after which. penalties .. .. apply Penalty (including cost): $15.79 Due with installment amount if paid after April 10 Exemption: $_0_ Code Area: 07 -001 Assessment No.: 440- 132 -58 Said matter affects Parcel 1 C. Property taxes, including general and special taxes, personal property taxes, if any, and any assessments collected with taxes, for the fiscal year 2005 - 2006. 1st Installment: $No Tax Due 2nd Installment: $No Tax Due Exemption: Code Area: Area: 07 -001 Assessment No.: 440- 132 -59 Said matter affects Parcel 2 D. Supplemental or escaped assessments of property taxes, if any, assessed pursuant to the Revenue and Taxation Code of the State of California. E. The lien of any special assessment or tax resulting from the inclusion of the property in a special assessment district or Mello -Roos Community Facilities District, which may exist by virtue of assessment maps or notices filed and /or recorded by any such district. Assessments, if any, arising from such assessment districts will be collected with the regular real property taxes. G. A Special Tax as disclosed by a "Notice of Special Tax Lien" pursuant to Government Code Section 53328.3 and Streets and Highways Code Section 3114.5 Recorded: August 24, 1990 as Instrument No. 90- 453226, Official Records District Name: Newport-Mesa Unified School District Community Facility District No. 90 -1 Said special tax may be collected with the property taxes. Page 4 10 File No: 06712600 H. A Special Tax as disclosed by a "Notice of Special.Tax Lien" pursuant to Government Code Section 53328.3 and Streets and Highways Code. Section 3114.5 Recorded: July 6, 1995 as Instrument No. 95- 0288272, Official Records District Name: City of Newport Beach Special Improvement District No. 95 -1 Said special tax,may be collected with the property taxes. 1. An easement for the purpose shown below and rights incidental thereto as set forth in a . document Granted to: Southern California Edison Company, a corporation Purpose: Public Utilities Recorded: in book 318, page 90; of Deeds Affects: that portion of said land as more particularly described therein Said easement has been modified by instrument recorded in book 1845, page 120 of Official Records. 1. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein. Dated: June 1, 1962 Lessor: The Irvine Company, a.West Virginia Corporation Lessee: Newport Dunes Inc., a California corporation Term: as disclosed therein Disclosed by: Lease Short Form Memorandum, recorded: August 30, 1962 in book 6233, page 853, Official Records No assurance is made as to the present.ownership of the leasehold or matters affecting the rights and interest of the. lessor or lessee in said lease other than the following:. An agreement to amend or modify certain provisions of said lease, as set forth in the document executed by As Lessor: The Irvine Company, a Michigan Corporation As Lessee: Newport Dunes Inc., a California corporation Recorded: April 4, 1984 as Instrument No. 84- 139149, Official Records An agreement to amend or modify certain provisions of said lease, as set forth in the document executed by As Lessor: The Irvine Company, a Michigan Corporation As Lessee: Newport Dunes Inc., a California corporation Recorded: August 13, 1984 as Instrument No. 84- 334010, Official Records An agreement to amend or modify certain provisions of said lease, as set forth in the document executed by As Lessor: The Irvine Company, a Michigan Corporation As Lessee: Newport Dunes Partnership, a California general partnership Recorded: February 17, 1989 as Instrument No. 89- 086691, Official Records The Lessee's interest under said lease has been assigned to Newport Dunes Partnership, a California general partnership by mesne assignments, the last of which recorded February 17, 1989 as Instrument No. 89- 086689 of Official Records, reference is made to the record Othereof for full particulars. Page 5 0 File No: 06712600 W An agreement to amend or modify certain provisions of said lease, asset forth in the document executed by As Lessor: The Irvine Company, a Delaware corporation As Lessee: Newport Dunes Partnership, a California general partnership Recorded: July 31, 2003 as Instrument No. 2003000920706, Official Records Re- recorded: October 14,. 2003 as Instrument No. 2003001253678, Official Records A document subject to all the terms, provisions and conditions therein contained. Entitled: Assignment, Assumption, Consent and Release Agreement Dated: July 28, 2003 Executed by: The Irvine Company, a Delaware corporation; Newport Dunes Partnership, a California general partnership; Waterfront Resort Properties L.P., a California limited partnership; and Newport Dunes Marina LLC, a California limited liability company Recorded: - July 31, 2003 as Instrument No. 2003000920707, Official Records And re- recorded: October 14, 2003 as Instrument No. 2003001253679 of Official Records 1. An air or flight easement, sometimes referred to as avigation rights, affecting the air space above a plane of 500 feet over said land, granted to the County of Orange by an instrument recorded March 17, 1964 in book 6965, page 721, Official Records. 1.. An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: County Sanitation District No. 5 Purpose: public sewer or sewers and appurtenances Recorded: December 15, 1966 in book 8128, page 688, Official Records .Affects: that portion of said land as more particularly described therein 1. An unrecorded lease with certain terms, covenants, conditions and provisions set.forth therein. Dated: June 5, 1968 Lessor: The Irvine Company, a West Virginia Corporation Lessee: Shell Oil Company, a Delaware corporation Disclosed by: Memorandum of Lease, recorded: July 8, 1968 in book 8661, page 677, Official Records The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. 1. An unrecorded sub -lease with certain terms, covenants, conditions and provisions set forth therein. Sub- Lessor: Newport Dunes Partnership, a California general partnership Sub- Lessee: Charles A. Berry, DBA Resort Watersports Disclosed by: Assignment of Rents and Sublease, recorded: February 17, 1989 as Instrument No. 89- 086693, Official Records NOTE 1: The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. Page 6 File No: 06712600 NOTE 2: A Subordination, NonDisturbance and Attornment Agreement and Tenant Estoppel recorded June 30, 1992 as Instrument No. 92- 442469, Official Records. 1. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein. Lessor: Newport Dunes Partnership, a California general partnership Lessee: G & M Marine, a California general partnership Disclosed by: various instruments of record, recorded: none shown, Official Records NOTE 1: The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. NOTE 2: A Subordination, NonDisturbance and Attornment Agreement and Tenant Estoppel recorded June 30, 1992 as Instrument No. 92- 442468, Official Records. 1. An unrecorded sub -lease with certain terms, covenants, conditions and provisions set forth therein. Sub- Lessor: Newport Dunes Partnership, a California general partnership Sub - Lessee: Charles A. Berry, DBA Resort Watersports Disclosed by: Assignments of Rents and Subleases, recorded: February 17, 1989 as Instrument No. 89- 086693,. Official Records NOTE 1: The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. 1. An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Southern California Edison Company Purpose: underground and above ground electrical supply systems and communication systems Recorded: August 8, 1989 as Instrument No. 89- 419630, Official Records Affects: a portion of the land 1. A document subject to all the terms, provisions and conditions therein contained. Entitled: Circulation Improvement and Open Space Agreement Dated: June 30, 1993 Executed by: The City of Newport Beach, a municipal corporation and. The Irvine Company, a Michigan Corporation Recorded: July 19, 1993 as Instrument No. 93- 0479122, Official Records Said agreement has been amended by a document recorded March 28, 1996 as Instrument No. 19960151033, Official Records, 1. An easement for the purposes shown below and rights incidental thereto as shown or as offered for dedication on the recorded map shown below Map of: Parcel Map No. 95 -137 Recorded: in book 305, page(s) 30 to 31, Miscellaneous Maps Purpose:, sidewalk and waterline Affects: a portion of the land 1. The recital on said Parcel Map that Parcels A and B are not separate building sites. Page 7 File No: 06712600. 1. An easemei document Granted to: Purpose: Recorded: Affects: it for the purpose shown below and rights incidental thereto as set forth in a Orange County Sanitation District, a public corporation right of way to establish, construct and: maintain for all times a public sewer or sewers and appurtenances August 28, 2001, as Instrument No. 20010599327,,of Official Records a portion of the land Reference is made to said document for full particulars.. 1. An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Orange County Sanitation District, a public corporation Purpose: sanitary sewer, pipe lines and appurtenances Recorded: May 20, 2004, as Instrument No. 2004000454403 of Official Records Affects: a portion of the land. 1. . The matters contained in a document entitled "Deed Restriction (Bayview Landing)" by and between The Irvine Company, a Delaware Corporation and California Coastal Commission recorded May 21, 2004 as Instrument No. 2004000457477 of Official Records. Reference is made to said document for full particulars. Affects the herein- described land and other land. 1. An easement for the purpose shown below and rights incidental thereto as set forth in a Document . Granted to: Orange County Sanitation District, a public corporation Purpose: sewer pipe lines and appurtenances Recorded: June 2, 2005 as Instrument No.. 2005000423905 of Official Records Affects: a portion of the land. 1., The effect of a map showing the herein described and other land recorded in Book 209, Pages 34 and 35 of Records of Survey maps of Orange County. 1. Any rights,. interests or claims of the parties in possession of said land, including but not limited to those based on an unrecorded agreement, contract or lease. 1. Water rights, claims or title to water, whether or not shown by the public records. 1. Matters which may be disclosed by an inspection or by a survey of said land that is satisfactory to this Company, or by inquiry of the parties in possession thereof. An inspection.of said land has been ordered, which may result in additional exceptions. END OF SCHEDULE B EXCEPTIONS PLEASE REFER TO THE "NOTES AND REQUIREMENTS SECTION" WHICH FOLLOWS FOR INFORMATION NECESSARY TO COMPLETE THIS TRANSACTION Page 8 File No: 06712600 REQUIREMENTS SECTION: REQ N0.1: The Company will require a certified copy of the Resolution of the Board of Directors.of the following corporation authorizing the transaction for which this Preliminary Report . was ordered. Corporation: The Irvine Company, a Delaware corporation i REQ NO. 2: The Company will require that the attached "Owner's Information Statement" be completed by the owner of the estate described or referred to in Schedule A immediately, prior to the close of this transaction and be returned to us. The purposes of the Owner's Information Statement is to provide the Company with .certain information that cannot necessarily be ascertained by making, a physical inspection of the land. Page 9 a File No: 06712600, INFORMATIONAL NOTES SECTION NOTE NO. 1: Privacy notice (15 U.S.C. 6801 and 16 CFR part 313): We collect nonpublic personal information about you. from information you provide on forms and documents and from other people such as your lender, real estate agent, attorney, escrow, etc. We do not disclose any nonpublic personal information about our customers or former customers to anyone, except as permitted by law. We restrict access to nonpublic personal information about you.to those employees who need to know that information in order to provide products or services to you. We maintain physical, electronic and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. NOTE NO. 2: The information on the attached plat is provided for your convenience as a guide to the general location of the subject property. The accuracy of this plat is not guaranteed, nor is it a part of any policy, report or guarantee to which it may be attached. NOTE NO. 3: California insurance code section 12413.1 regulates the disbursement of escrow and sub - escrow funds by title companies. The.law requires that funds be deposited in the title company, escrow account and available for withdrawal prior to disbursement. Funds deposited with the company by wire transfer may be disbursed upon receipt. Funds deposited with the company via cashier's check or teller's check drawn on a California based bank may be disbursed on the next business day after the day of deposit. If funds are deposited with the company by other methods, .recording and /or disbursement may be delayed. All escrow and sub - escrow funds received by the company will be deposited with other escrow funds in one or more non - interest bearing escrow accounts of the company in a financial institution selected by the company. The company may. receive certain direct or indirect benefits from the financial institution by reason of the deposit of such funds or the maintenance of such accounts with such financial institution, and the company shall have no obligation to account to the depositing party in any manner for the value of, or to pay to such party, any benefit received by the. company. Those benefits may include, without limitation, credits allowed by such financial institution on loans to the company or its parent company and. earnings on investments made with the proceeds of such loans, accounting, reporting and other services and.products of such financial institution. Such benefits shall be deemed additional compensation of the company for its services in connection with the escrow or sub - escrow. WIRING INSTRUCTIONS FOR THIS OFFICE ARE: Union Bank of California 445 South Figueroa Street . Los Angeles, CA 90071 -1655 Phone (800) 218 -6466 ABA #122 - 000 -496 Credit To: Commonwealth Land Title Company - Orange County Account #9100815033 RE: 06712600 - 201 - JIM PLEASE INDICATE Commonwealth Land Title Company ESCROW OR TITLE ORDER NUMBER Page 10 File No: 06712600 NOTE NO. 4: The charges which the company will make for next day messenger services (i.e. Federal Express, UPS, DHL, Airborne, Express mail, etc.) Are $15.00 per letter, standard overnight service, and $25.00 for larger size packages and /or priority delivery services. Such charges include the cost of such messenger service and the company's expenses for arranging such messenger service and its overhead and profit. Special messenger services will be billed at the cost of such services. There will be no additional charge for pick -up or delivery of packages via the: company's regularly scheduled messenger runs. . NOTE NO. 5: There are no conveyances affecting said land recorded within 6 months of the date of this report. NOTE NO. 6: The charge for a policy of title insurance, when issued through this title order, will be based on the basic (not short-term) title insurance rate. Typist: del Date Typed: March. 31, 2004 Page 11 • Exhibit B(Rev. 2/4/02) CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990, EXCLUSIONS FROM COVERAGE The following marten are apssly excluded hom the coverage of this policy and the Company will not pay bun ar damage, costs, attorneys' Res or expenses which aria by ..of, ' I. (a) Any law, ordinance or govemmemal regulmoa (including but not limited to Wilding or wring laws, ardinanas, or regulations) restricting, regulating, prohibuing or Nov., to O the occupancy. use or enjoyment of the lend: (i) the the.. dimensions or lieadmi fany imps men, now or hereafter erared on the land ( u) aupe on..i...hi, or a change in the dimensiam or ern of the land or any parcel of which the land is or was a part, or (iv) environmental promatian, or the effect of my vulabn of these laws, rim une. or geveramental regulations, except to the exlem that a notice of the enfacarrom thereof or a notice of a defect beg, or emumbracce resulting gam a violation or WIq;cd violation affecting the land has wen recorded in the public records as l]ae of Policy. (b) Any govammsntal police power not excluded by (a) above, except to the expect that a wtica of the wercise thereof or notice of a defect; lien or enwmbmnce resulting from a violation err alleged violation affecting she lad has Wen recorded in the public recoMeaz Daze of Policy. ' 2' .Rights of warrant domain unless notice of the exercise thereof one WEn recorded in the public records at Daze of Policy,. but WE excluding Gam coverage any taking which has occurred prior to Daze of Policy which would be. binding on the rights of a purchaser for vachs, with., knowkdgc. 3 Deem, lime, encurMraneas, advam claims or other manes: (a) whether or not recorded in the public records a Date of Policy but created, suffered, amused or agreed to by tz insured claimant: (b) , not (mown m the Company, not_recc rded in the public rewrda u Dwe of Policy, but known c the nmured claimant and not &closed in writing to the Company by she insured claim ,pHor m the date she insured claimants lame an insured under shh policy,. (c) Resulting in no lour or damage b the insured clatnnnt (d) Attaching or<rtaed aanba<gnCN to OacofPulhy, of (e) Resulting in loss or damage which would act have boEn sustained if the insured claimant had paid value for the insured mortgage or for the estus or interest insured by this policy. 4 Unenforttoplityofthe lien otter insured mortgage boauu of the inability or failure of the insured at Data of Policy, or the inability or failure of any subsequent owner of the inkolmostas to comply with the applicable doing bounces laws of the sure in which the land is situated. 5 Invalidity or ummnkambidLy of the lien of the iwurcd mortgage, or claim thereof, which era. out of the trwazties ei,iddnced by she insured mortgage and is lased upon awry or any cormmer credit pmnction or bath in lending law. 5 Any claim, which arises out of the transaction eating in the insured the Isere or amount hoped by this policy or the baoaption craming the am=, of the insured tender. by rcamn of the operation of [edam tanicaptcy, gate insolvency or similar crehtors rights laws. EXCEPTIONS FROM COVERAGE - SCHEDULE B, PART This policy does not insure against loss or damage (tad the Company will not pay costs, atameys' fees car expenses) which wrist, by reason of I. Taxes or assessment which are act shown m existing liens by the records ofany rating auhotity dam kvies came to aeaamean on reel property, or by the public records. Proceedings by a public agency which may result in taxes or aaasmens, or notices ofeach pmaedings, whether or net shown by the records ofmam agency or by to public records. 2. Any t$et, rights. imeregs, or do= which are not shown by the public records but which could be acert urcid by an uapection of the land which may to rimmed by permit m peaeession thercoL 3.. Easetneme, time or mncumbraaccs, or claims thereof, which ore not shown by the public raomd, e. Discrepancies, cantina in bumulary ]arse, shortage in era, mareseltments, or any other fags which a torten survey would disclose, and which are not shown by the public records. 5. (a) Unpateaned mining claims; (b) reservabs or execprioths in page" or in Am authorizing the issuance thereof, (c) water rights, claims or title to weer, whether or not the natters mxapted under (a), (b) or (c).wo shown by the (public record. CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE (6/2198) ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE (10/17198) EXCLUSIONS In addition to the Exapions in Schedule B, You we not insured against bas, toss, =mayi lea, end expeas suiting from: 1. Cmvonmenul police power, and the existence or vialaion ofany law or goverweent regulation. This includes ordinances, laws and regulation coaceming: a building ' b. coning C. laN se it impm.exi an the Lad is Lard division I. environmental protection ' Thu Eslusion do. not apply to violatims or the mforernmt ofdaae now. ifrotiew ath'. violation or enforcement appeal in the Public Records a the Policy Own. This Exclueen does act limit the, coverage described in Covered Risk 14, 15, 16, 1? or 24. 2 The failure of Your existing smuaur s, or any pan of them, to be matmrted in accordance with applicable building aides. This Exclusion daa not apply to violation, of building cods if notice Eddie violation appears in the Public Records u the Policy Date' 3 The right no take the Land by communing u, cautious: a notice ofeeemaing the rigln appears in the Public Records a the Policy Due; or b. the taking happened before the Policy daze and '6 binding an You if You bought the Lard without knowing of the taking. 4 Risks E. Waz we veered, allowed, or agreed to by You, whether or not they appeur in the Public Records; b. dam are known on You in the Policy Dare, but nq to Us, unless they appear in the Public Accords at the Policy Date G that rauh m no lea to You; or d Nis first occur after do Policy Date - this does as limit the coverage daeriWd in Covered Risk 1; 8d, 22, 23, 24 or 25. 5 Failure to pay vales lies Your Titc 6 Lack of right: a b any Land oasidm the sea specifically de gibed and referred to m paugruph 3 of Schedule A; and , b. in streets, allays, or waterway, than much the land This Exclusion does not limit the coverage dissected in Covered Risk 1 I or 18. AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY (6 -1-87) EXCLUSIONS In addition to the Exceptions in Schedule B, )our ore am'us and agaist coca, cow, anUmeys' fees, std upnaa salting hem t Govrmmcnrd police power, and [ht, exstah¢ a violaion of ony law or govmmmen[ rcguluion. Thu includes Wilding and caning ordinance Intl also laws ad regulwions conoaning: land a • Impmvmumt do ch. land • landdivision Environnmml protection This exclusion daa scot apply to violations or the Enforcement of them manse which appear in the public rewah a Policy Dine. The exclsbn dos not limo the aning coaxrnge ducribed in ir. 12 wall 13 ofCovaad Tide Risks, 2 The cipI to sake she land by condemning it uselese; • A .61. f ex W.2 the right appears in the public ¢cords oa the Policy Dasc ' • The taking hoppencd pier to the Policy Date ands binding on you ifyou bought the land without knowing of the taking 3 Tide Risks' • That we wand. allowed, or agreed to by you • Tha are known to you, bun not to us, on ON Policy Datc - unles they appeared in the Public Records ' • That salt in no loan to you • Thin rim offs your title mho the Policy Date -this dos not limit the labor ad tmterial lien coverage b Item 8 of Curtained Tide Risks 4 Failure to pay value for Yow title. " 5 Lark of aright • To any IoM oasidc the area mo ifieally dambed and rchurad to in Rem 3 of Schedule A OR In straws, allays, or ..ay. this mach your land This cxdusion lees rot limit the access coverage in Iran 6 of Covered Title Risks AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (10- 17 -92) - - WITH ALTAENDORSEMENT-FORM I COVERAGE - - ' and - - - - AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY (10- 17 -92)- - WITH ALTA ENDORSEMENT -FORM 1 COVERAGE - EXCLUSIONSFROMCOVERAGE - - The finfuniag mu[en are expressly excluded From the coverage ofths Policy and the Company will nos py loss or damge, case, ummry's fees or expenses which arise by steam OF. 1. (a) Any law, ozyins cee or gosemmental regulation (including bas am limited to building and zoning laws, ardinencs, or deptaziom) seas rfal regulating, Prohibiting of making to (i) the pacapusy, We or ebjoymeat of the need; 00 the madam, dimeaaion, or location of any improvement now or hereafter ratted on the land; (ii) aappartain. in ..Ohio or a change in the dimensions or area of thelvd , soy parcel of which the lad is , wa a Pan; or (iv) environmemal pmWction, or ibe effM of any violation offs. laws; ordinonces or governmental m,lz ims, ca,pr to the extent that a notice of the cadme muem thereof ar a notice of a d[se, lien or rncumbrance daunting from a violation m alleged walmon.Resting the land has beat recorded in she public records m Data of Policy. (b) Any govumnenml pofim power nor excluded by (a) shave, cacep an the extern that a notice of she exorcise thereafara conic, ofa defect. lien or cnwnJUaxe mrullmi, h... vialmen or zllegad violation effecting the land his been decoded in the public research a Daze of Policy. - - - - 2. &balm of eminent domain unless notice of the examine thateof has been recorded in the public retards a Data of Policy. hot rim excluding adds coverage any taking which her attuned prior to Daze of Polity which would be binding an the rights ofa purchaser for vahe witlwut knowledge. - - - .3. Defects, liens, mcumdances. adverse clhides or otter matter: - (a) created. suffered. assumed or hared b by the imurcdclehand; - (b) not known to the Company, our reorded in the public records ot Date of Policy, but known to the unused claimant and not disefsed in writing to the Company by de, insured dam am prior he date We the insured claimers becarne an insured under this policy, - - - (c) resulting in oo loss or dadsge to the iuvrcd chimers; - - - - (d) aaazhing or crated hula aquent W Data of Policy (concept inner eater that this policy issues the priority of the lien of the needed mortgage over any statutory, lien for services, labor., n 6.1 or to - the axtem iuurevice s afforded hernia as to asssmants for serest ingrovemens under construction or completed az Due of Policy), or - - (e) resulting in has or damage which would not have been sustained if the insured claimant had pad value for the insured mortgage. - - 4. Uncnfncenhility of the lien of the insured mortgage because of the inability or filue, of the insured a Date of Policy,anhe inability or(silure of any subsequent owner of the indebs,dded, m mrmply with applicable doing business laws of the stae in which the land is si[uad S. Invalidity or unenf numbility of the lien of the insured m 94, or claim thane( which arises our of the transaction evidenced by the insured mrartgage and is based upon usury or any consumer credit protection or math in lending law. - b APY aazaWdy lien for amiss, Wb, a mbreeriaG (or the chino of priority ofanY nuutory lino for smites, lobar or rretermis Ozer the lion of the insured rmrtgaac) vamg tom are impmvenrct or wank which az Dete ofPOlicy the maned has advanced or is obligazd to advance. - - T. Any ddm whicharss out of the emmeetion creating the incest[ of the rrortgagce inured by this Policy, by reason o0he opemti.n of (edml bankrupmy, slue hzavemy, ar ximilarcrctlhon' sigh¢ laws. that is based on - - - (i) the transaction creating the Wment of the insured mongrace being deemed a Eaudukm conveyance or 5 audulens vanson. or - (i) the subordination of the interest ofthe insured m artgagee as a result of the application of the dom-ma of equi[ablesubordiaafn; or (ii) denunciation creating the interest of the insured .,as, being da,md a prc - - - (a) totimelydreardmheiutmmentaftram fegor - - - - - (b) ofsuch racordedon to impart ral to a purchaser for value or ajudgmanr or lien creditor. The above policy frsm may be bound to afford either Standard Coverage or Evedded Co.,., [a addition to the above Exclusions Gam Coverage, the Exceptions from Commas in a Standard Coverage policy will a ho inccudemhe following Grnerul Excep tuns: - EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage lead da Company will not pay toss, ma7mp' foes or eapassa) which vise by seater of - - 1. Taxea or assessment which arc non shown as existing liens by the ..,,bar., lazing authority that levies tun .moss. an real property or by @, public mmALt. Pmemdinp by a public agency which may result in tats, Macaroon, or notices ofse ch proceedings, wheher arms showa by the records crunch agency, by the pubic records. 2. Any fats, rights, interest or claim which ore nos shown by the public records but which could be ascertained by an inspection of the humor by asking inquiry of persons in possasron thomar 3. Easermatc liens or enmMsmncea, or claims ehadzo[ which ate not shown by she public records. 4, Disampanvuq conflicts in boundary lines, shortage in are; encroachments, or any other Pecs which a coned survey would disclose, and which are no[ shown by she public decor&. 5. (a) Unpaz,ned mining claims; (b) reservations or emep ions in patens or in AM authorizing the issuance thereof, (c) water rights. claims or tide w water, whether or not the manors excepted melee (a), (b) or (c) are shown by ore Public records. - - AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (10- 17 -92) _ And AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY (10- 17 -92) EXCLUSIONS FROM COVERAGE. - - - The following ashes are captaincy excluded Gom the coverge Fthis policy and the Company will net Pay loss or damage. toss, moreays' (ha or exp uzz which arise by reason of I. (a) Any law, ordinance or governmental regulation (including but trot limited to building and coning laws. mdinaacce, ar regulafm) restricting, regulating, prohibiting or rmadng sea O the mucancrey, cojoymexd of the land; (i) the character, dimemiom or location of any improvsmem now or Immune, ercaid an the lad; (iii) a Mundane int awaseshi, or a change io the dimensions or arse often land or any parcel of which the land's or was a part; or (iv) envvonmental protection, or the effect of any violation of these laws, a ffinames or governmental regdations, exspt to the Went that a notice of the enforcement thereof or a duties of a defect, lien or encumbrance resulting Gom a violation or alleged violating effesiag the lad his been recorded in We public record; at Date of Policy. (b) Any go vernm mil Policy pow, sat excluded by (a) above, seep to the extent Rust a notice of the ex sum. demean a notice of a defeat, lien, acumhrarwe resulting Gom a violation or alfagd violation affecting the land has been recorded in des public records a Date of Policy. - 2 Right of sminea dmam unless make of the ..cams. thereof has bend recorded in the public rzmdd� an Dote of Policy, but nor excluding from ow age, any eking which has attuned prior to Due of Policy which would d bidding an rube rights ofa purchaser for value without kncwledge. _ - - 3. Dafcs, liens, encunrdasaes, adverse claims ,,ber mater: - - (a) creand. suffered, assumed or agreed W by the insured caiman[' - - (b) wt known to the Company. not recorded in the public records an Date of Policy, but known to the indeed claimant and rest disclosed in writing to the i:pcmdny by eha insured claimant prior to the Me use insured claimmmt became an induced under this policy, - (c) resultiag, in an loss or damage m the insured claim.; - (d) attaching or,eaed solecism to Due of Policy, , - - (a) resulting in loss or damage which would rot have been sustained if the incurred claimant bid paid value for the sate or interest iuurad by this Policy. - 4. Any claim which arises out of the lramostim vabng in the insured the state or interest insured by the Policy, by mum of the operation of federal baNwpcy. state imolvsney -or similar creditors, rights laws, that s based Or - O the transaction creating the estate or interest insured by this policy brag deemed a fiauduleat conveyance an Gauche transfer, or (i) the trasuthn creating [he maze or interest imurcd by the policy befog deemed a prckrcn[ial vamFer excep where the preE,eainl sudftt result Gam the filurc (a) todmety record the instrument o(emufc, or - (b) of such rncorduion w import nosim b a purchuer for value or ajudgmm ,lien vd'n,. - - The above Policy forms may be issued to argued either Standard Coverage or Extruded Coverage. In addition to the above Exclusions from Cawsrz, , the Excepiou Gom Covadege in a Standard Coverage Policy will also include the following General Exceptions. - - - EXCEPTIONS FROM COVERAGE - - This policy dos and insure against loss or damage (and the Company will rid pay Cosa, atomeys' fm or expanses) which arise by rMon of - 2. L Tus or ueesmec agency h are nut shored lt in iaing diem ea the records.Fumy tuing proceedings, d that Mir tats arrow. by th reseal property ag by tat puhlic lydf. - Any gsbyi publicagency which my result Intaxes ,assessment, mnotices afshic whether br rotshownby the records of sums kir,inoriry of pubicrecords. - - 2. Any ions, rights, r essues or claim which ere m shown by the public wdordi but which could be ucertaind by an inzpeniun of the Wed or by making inquiry of person in posessfn thcrtof I. Eater diem or euumbmncea, y I claims thereof which ore rim shown by the public recoils. 4. Discrepancies. Untrimmed mining in boundary sins, shosmge in aeon inroxnts or i Aany uthor Pies which a nortem survey would dismme, ad which ore rat nt. wh th rho public eecmds. 5. (a) due mining chime; (b) rcurwthm or exceptions in patens or h Arts authorizing the issuance thermion (c) weer right, dvimh or title to water. whether or rim the maned acrymd eder(a).(b) or (c) on shown by the Wblic records _ Q"20 13 ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (10/13/01) EXCLUSIONS FROM COVERAGE The following matters are expressly occluded from the coverage ofthis polity and the Cmn any will en, pay loss or damage, cosh, atmmeys fees w expmaes which arise by reason of. L (a) Any Isw, ordinance or govemmcMud regulation (including but net limited to building mid coning lows, ordinance, or regulation) restricting cog.huma, prohbiting or relating toll) the occupancy. rte, or enjoyment of the Land; (i) the character, diessmoa or location of any improvement now or hereafter arsted on Me land; (iii) a saturation in ownership or a'change in the dimension or areas of the land w any parent of which'ths land is or war a pert; or (iv) enviranmmurd protection, or Me effect fany violation ofthese law, on, i...a or govemmeeand regulators, except to the some that a notice.fthe enforcement d ermf or a notice ofa dpfat, lienor encumbrane resulting from a violation cr allegod violation affecting the Land has ban recorded in the Public Records at Dam c f Policy. Thin exdnion does rat hind the mvprage provided PMm Covered Risks l2, I1, 14, and 16 of MU polity. (b) Any governmental police power not excluded by (a) above, except to the extent that a voice of the exercise thereof or a notice of a defeat, lien or encumbrance resulting Born a violation or alleged violation affecting the IoM hn been recorded in the Public Records u Dace of %licy. Thu exelusm. dos not limit the coverage provided under Covered Risks 12, 13, la, and 16 of this Policy. 21 Rights oruminant domain out. notice of the exercise thermfhm been recorded in the Public Raord, at Date ofPoliry, but not excluding from coverage my taking which her occurred prior to Dale of Policy which would be binding on the rights of a purchaser for value without Knowledge - 3. Defms. Here ncumhroces, adverse claims w other ratters: (a) cmaedl' suffered. aamred or agreed an by the tutored Michael, '(b) not Known ta the Company, Out recorded in the Public Raorda at Date of policy, but %noon w the banned Claimant sM not disclosed in writing to the Company by the Wurrd Claimant prior to the dam the loured Chi., became an Insured order this policy; (c) resulting In m lots or damage to the hemeci Claim.., . . (d) atmcbin, or created mhseauent to Date of Policy(thm parepoph does not limit the coverage Provided under Covered RUks 8, 16, 18 , 19, 20,21, 22, 23, 24, 25 and 26); or (e) resulting in lose or daaagc which would ant have them sustained if the insured Claimant had paid valor for the isaured Mortgage 4. Unenfarembilay ofthe lien ofthe Insured Mortgage because of the inability or failure of flue Insured at Daze of Policy, or the inability or failure of my submanumt.Owna of the indebteMeee.o comply with applicable doing business laws of Me mom in which the lath U shouted S. fnvalid ty or enrnfomeability of Me lien of the Inured Mortgage, or claim thereof which meet caul of the oamac[ion evidenced by the Insured Mortgage and is based upon usury, exoeyt re provided in Covered Risk 27, or any contemner credit protection wroth in lending law. 6. Real property taxes or aesesenients of oy gavmunemal mMOnty which become a him on she lsM mbsauentm Dale ofPOliry. Thu4ichcion does not limb the coverage provided uMcr mitered Rids ], 8(e) and 26. T. Any claim of invalidity, unenimccedilky Or lack ofprm ity of the Jim of the Inured Mangano an to advmca or modifications made after the bowed her Knowledge that the vestve shown in SchWuleA lent, longer the owner f,ha es.. or interest covered by his Policy. This exclusion does not limit the coverage provided in Covered Risk 6, 8. Lack of priority of the lien of the Enured Mortgage am each and every advance made after Date ofPulicy, and all imeao charged lhermq ova time oncumbrnwes and other runes ¢Hating the title, the existence of which me Knownm the Iauad at (a) The time of the advmrce; or (b) The time a modifrcxtion is Made m the tomb of the homed Mortgage which chomps the rase of interest charged. if the mte of Interest is greater as a result of then modification than d would have Won before the Modification. This exclusion does not limit the coverage provided in Covered Risk 8: 9. The failure of the residential structure, or my portion Warmth, have Jame constructed befors, on or aftm Doe of policy in accordance with applicable building cads. Tnis exclusion dace not apply to violations of building codes if notice ofthe violation appose in the Public Raords a Dole of Policy ,L A. i EXHIBIT «D». DESCRIPTION OF BENEFITTED PROPERTY The properties described below shall constitute the `Benefited Property" for purposes of this Offer, provided that any such property shall cease being part of the `Benefited Property" at such time as fee title to such, property. ceases to be owned by either Offeror or a Successor .Covenantee. PARCELI (Lower Bayview Property) Parcel 1 as shown on Exhibit 'B" attached to Lot Line Adjustment No., recorded March 19, 2004 as Instrument No. 2004000225274, of Official Records, in the Office of the County Recorder of Orange County, California. PARCEL II (Harbor View Shopping Center) Parcels 2, 3 and 4, in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 35 Page 1 of Parcel Maps, in the Office of the County Recorder of said County. A non - exclusive easement for ingress and egress purposes over the northwesterly 10.00 feet of Parcel No. 1, in the City of Newport Beach, County of Orange, State of California, as per map filed in Book 35, Page 1 of Parcel Maps, records of said Orange County. PARCEL III (Fashion Island) Parcel A: Parcels 1 through 9, inclusive, in the City of Newport Beach, County of Orange, . State of California, as shown on Parcel Map No. 86 -399 as per Map filed in Book 221, pages 30 through 36, inclusive, of Parcel Maps, in the. Office of the County Recorder of said County. Parcel B: Parcels 13 through 17, inclusive, and Lots Q, R, S, U, R -1, R -2 and R -3 of Tract No. 6015, in the City of Newport Beach, County of Orange, State of California, as per Map recorded in Book 239, pages 28 through 41, inclusive, of Miscellaneous Maps, in the Office of the County Recorder of said County. 30209 - 0055347088.5 4/4/06 1 Parcel C: Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a Parcel Map filed in Book 67, pages 2 and 3, of Parcel Maps, in the Office of the County Recorder of said County. Parcel D: Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a Parcel Map filed in Book 75, page 48, of Parcel Maps, in the Office of . the County Recorder of said County. Parcel E: Parcel 4 of Parcel Maps, as shown on a Map filed in Book 67, pages 2 and 3, of Parcel Maps and Lot W of Tract No. 601.5, as per Map recorded in Book 239, pages 28 through 41, inclusive, of Miscellaneous Maps, all in the City of Newport Beach, County of Orange, State of California, in the Office of the County Recorder of said County, lying within the land described as Parcels 1 and 2 of that certain Lot Line Adjustment N.B.L.L.A. 87 -3, recorded November 13, 1.087, as Instrument No. 87- 640346, in the Office of the County Recorder of said County. PARCEL IV (Corona del Mar Plaza) Parcel A: The southwesterly one -half of Parcel 2 as shown on Parcel Map No. 90 -361, filed in Book 270, Pages 15 to 18, inclusive, of Parcel Maps, Records of Orange County, California. Parcel B: The northeasterly one -half of Parcel 2 as shown on Parcel Map No. 90 -361, filed in Book 270, Pages 15 to 18, inclusive, of Parcel Maps, Records of Orange County; California. Parcel C: Parcel 1 of Parcel Map No. 90 -361, filed in Book 270, Pages 15 to 18, inclusive, of Parcel Maps, Records of Orange County, California. PARCEL V (Newport Coast Plaza) Parcels 1 and 2 of Parcel Map 2000 -160, recorded on January 12, 2001, as Instrument No. 20010021439 in Book 318, Pages 27 to 31, inclusive, of Parcel Maps, Records of Orange County, California. 30209 -0055\347088.5 414/06 2 PARCEL VI (Pelican Hill Golf Courses) OCEAN COURSE AND LINKS COURSE/PELICAN HILL GOLF CLUB The property situated in the City of Newport Beach, County of Orange, State of California, described as follows: PARCEL A: PARCEL 2 OF LOT LINE ADJUSTMENT LL 2003 -027 RECORDED JUNE 24, 2004 AS INSTRUMENT NO. 2004000575815 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL B: PARCEL 3 OF LOT LINE ADJUSTMENT LL 2003 -026 RECORDED JUNE 24, 2004 AS INSTRUMENT NO. 2004000575812 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL C: PARCEL 4 OF LOT LINE ADJUSTMENT LL 94 -008 RECORDED APRIL 28, 1995 AS INSTRUMENT NO. 95- 0180634 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, PARCEL D: PARCEL 1 OF LOT LINE ADJUSTMENT LL 92 -017 RECORDED MAY 22, 1992 AS INSTRUMENT NO. 92- 343565 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL E: LOTS 2, 5 AND 6 OF TRACT NO. 1413I PER MAP FILED IN BOOK 662, PAGES 42 THROUGH 46, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL F: EASEMENTS OVER THOSE PORTIONS OF LOT 59 AND THAT PORTION OF LOT A OF, TRACT 14063 PER MAP FILED IN BOOK 670, PAGES 23 THROUGH 29, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS SET FORTH IN ARTICLE II SUBPARAGRAPH 2.3(C) ENTITLED "ACCESS OVER COMMON AREA FOR GOLF COURSE" IN THAT CERTAIN DECLARATION ENTITLED "DECLARATION OF SPECIAL COVENANTS, CONDITIONS, RESTRICTIONS 30209 -0055\347088.5 4/4/06 3 • AND ESTABLISHMENT OF EASEMENTS FOR GOLF COURSE PROPERTY AND PELICAN POINT ", RECORDED MAY 23, 1991 AS INSTRUMENT NO. 91- 254012 OF OFFICIAL RECORDS. PARCEL G: A FORTY (40) FOOT WIDE EASEMENT FOR'ACCESS TUNNEL PURPOSES UNDER AND THROUGH A PORTION OF THAT PARCEL OF LAND DESCRIBED WITHIN THE "IRREVOCABLE OFFER TO CONVEY EASEMENT PELICAN HILL ROAD RIGHT -OF- WAY" (NOW KNOWN AS "NEWPORT COAST DRIVE ") RECORDED DECEMBER 20, 1988 AS INSTRUMENT NO. 88- 663375 OF OFFICIAL RECORDS, AND SHOWN ON THE MAP OF TRACT NO. 14131, FILED IN BOOK 662, PAGES 42 THROUGH 46, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID EASEMENT BEING MORE PARTICULARLY.DESCRIBED AS FOLLOWS: COMMENCING ON THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS "NORTH 55 053'00" WEST, 457.71 "', TO WHICH A RADIAL LINE BEARS NORTH 34 °43'41" WEST AND BEING THE INTERSECTION OF THE NORTHEASTERLY LINE OF LOT 4 OF SAID TRACT WITH THE SOUTHERLY LINE OF SAID IRREVOCABLE OFFER, SAID SOUTHERLY LINE BEING A CURVE CONCAVE SOUTHERLY, HAVING A RADIUS OF 1129.50 FEET; THENCE, WESTERLY, 97.70 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 04 057'21" TO THE TRUE POINT OF BEGINNING, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 39 041'02" WEST; THENCE, CONTINUING ALONG SAID CURVE, 44.50, FEET THROUGH A CENTRAL ANGLE OF 02015'26", TO WHICH A RADIAL LINE BEARS NORTH 41 °56'28" WEST; THENCE, CROSSING SAID IRREVOCABLE OFFER, NORTH 14 °50'00" WEST, 151.77 FEET TO THE NORTHERLY LINE, OF SAID IRREVOCABLE OFFER AND • POINT IN A CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 1266.50 FEET, • RADIAL LINE THROUGH SAID POINT BEARS NORTH 38 048'40" WEST; THENCE, EASTERLY 43.45 FEET, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 01057'57 ", TO WHICH A RADIAL LINE BEARS NORTH 36 °50'43" WEST; THENCE, CROSSING SAID IRREVOCABLE OFFER, SOUTH 14 050'00" EAST, 149.26 FEET TO THE POINT OF BEGINNING. THE HEREIN DESCRIBED EASEMENT IS CENTERED UPON A CYLINDER. TWENTY - FIVE (25) FEET IN DIAMETER. THE FINISHED FLOOR ELEVATION AT THE NORTHERLY END IS 129.50 FEET M.S.L.; THE FINISHED FLOOR ELEVATION AT THE SOUTHERLY END IS 120.10 FEET M.S.L. PARCEL H: A FIFTY (50) FOOT WIDE EASEMENT FOR ACCESS TUNNEL PURPOSES UNDER AND THROUGH A PORTION OF THAT PARCEL OF LAND BEING A 100 FOOT WIDE RIGHT OF WAY KNOWN AS "PACIFIC COAST HIGHWAY ", AS SHOWN ON THE MAP OF TRACT NO. 14131, FILED IN BOOK 662, PAGES 42 THROUGH 46, INCLUSIVE, OF 30209 - 0055\347088.5 414/06 -4 MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID EASEMENT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING ON THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS "(NORTH 49 029'55" WEST, 5241.12')" AND BEING THE MOST . WESTERLY CORNER OF LOT 3 OF SAID TRACT AND BEING IN THE EASTERLY LINE OF SAID PACIFIC COAST HIGHWAY; THENCE, ALONG SAID EASTERLY LINE OF PACIFIC. COAST HIGHWAY, SOUTH 49 029'55" EAST, 205.89 FEET TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING WITH SAID EASTERLY LINE; SOUTH 49 °29'55" EAST, 50.00 FEET; THENCE, CROSSING SAID PACIFIC COAST HIGHWAY, SOUTH 40 °30'05" WEST, 100.00 FEET TO A POINT IN THE WESTERLY LINE OF SAID PACIFIC COAST HIGHWAY; THENCE, ALONG SAID WESTERLY LINE, NORTH 49 029'55" WEST, 50.00 FEET; THENCE, CROSSING SAID PACIFIC COAST. HIGHWAY, NORTH 40 030'05" EAST, 100.00 FEET TO THE TRUE POINT OF BEGINNING. . THE HEREIN DESCRIBED EASEMENT IS CENTERED UPON A CYLINDER TWENTY - FIVE (25) FEET IN DIAMETER. THE FINISHED FLOOR ELEVATION AT THE NORTHEASTERLY END IS 113.10 FEET M.S.L.; THE FINISHED FLOOR ELEVATION AT THE SOUTHWESTERLY END IS 112.60 FEET M.S.L. PARCEL I: EASEMENTS OVER LOTS A, B AND K OF TRACT 14063 PER MAP FILED IN BOOK 670, PAGES 23 THROUGH 29, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, FOR PEDESTRIAN, GOLF CART AND OTHER VEHICULAR MEANS FOR MAINTENANCE PURPOSES, USE AND ENJOYMENT OF THE ADJACENT GOLF COURSE, AS CONTAINED IN THAT CERTAIN DECLARATION OF RECIPROCAL EASEMENTS BY THE IRVINE COMPANY RECORDED MARCH 4, 1994 AS INSTRUMENT NO. 94- 0157793 OF OFFICIAL RECORDS. 30209 -0055\347088.5 44106 5 TEMPORARY LICENSE AND REMEDIATION AGREEMENT This Temporary Li merit") is entered into ( "Effective Date "), by corporation ( ".IRVINE ") poration .( "SHELL ").. sense and Remediation Agreement ( "Agree - effective the 1st day of March, 1994. and among THE IRVINE COMPANY, a Michigan and SHELL OIL COMPANY, a Delaware cor- RECITALS A. Prior to the date hereof, IRVINE.was the lessor. and SHELL was the lessee under a lease, as amended (the "Shell Lease ") respecting that certain parcel of land situated at the corner of Pacific Coast Highway and Jamboree, Newport Beach, California (the "PROPERTY "). SHELL, as lessee, operated or was ultimately responsible for the operation of a gasoline service station.on the PROPERTY.which activity included but was not limited to the placement on the PROPERTY by SHELL of underground storage tanks,and. refined gasoline, petroleum liquids, and.other hydrocarbons (collectively referred to as "hydrocarbons "). SHELL's.tenure as lessee of the PROPERTY ended on or about June 30, 1934 1. The term "PROPERTY" shall mean and include the appurtenances and all right, title and interest of IRVINE in and to land lying in all streets, highways and rights of way abutting on.or adjacent to the PROPERTY. B. Petroleum hydrocarbons have been detected in the soil and groundwater underlying the PROPERTY. C. SHELL desires to enter into this Agreement in order to gain access to the.PROPERTY to investigate the extent of the. possible hydrocarbon contamination and to install, operate, service, monitor, repair, replace and remove a hydrocarbon recovery facility or such other soil and groundwater remediation systems which may be necessary . to recover any hydrocarbons from the soil and groundwater. IRVINE desires to enter into this agreement in order to facilitate the investigation and the clean- up of the PROPERTY in accordance with.the terms of this Agreement. In consideration of the recitals, covenants, representa- tions, warranties and indemnities set forth in this Agreement, the parties hereto do hereby agree as follows: 92571 AGREEMENT 1. Grant of License.. IRVINE hereby grants permission, in the format a revocable_ license, to SHELL, its employees and approved consul- tants and contractors, to enter upon the PROPERTY from and afte12,��{ �. the effective date of this Aareement for the purposes of inves- tigating the extent of hydrocarbon contamination, and for ti remediation of the same, all in accordance with a Remedial Action Plan, ( "Plan "), to be prepared by Shell and submitted to the appropriate governmental authority on or.before 3tiy- ,— ,m9.4, and approved and /or amended by a governmental authority, and to be then attached hereto and become a part hereof as Exhibit A. September 30, 1994, or such 2. Remedial Activities. later date as specifically agreed to by both parties 2.1. Remediation /Mitigation . SHELL will, at its sale cost and expense, commence and diligently pursue to full completion the due and proper repair, cleanup, mitigation or remediation of the PROPERTY, including the soil and groundwater thereof, and the preparation and implementa- tion of any closure, remedial or other actions or plans as and to the extent required by any federal, state and /or local law and /or governmental authority, including acts and /or activities required to be performed on real and /or personal property:or properties other than.the.PROPERTY (any and all- such acts and activities being hereinafter referred to as .( "REMEDIAL ACTIVITIES ").. REMEDIAL ACTIVITIES shall include, but shall not be limited to, causing the soil and groundwater of the PROPERTY to be in. compliance with, and not causing or permitting the PROPERTY, . including the soil and the groundwater thereof,.to be in viola- tion of, any federal, state or local laws, ordinances and regula- tions relating to industrial hygiene or to.the environmental conditions thereon. Each party shall promptly notify the other party of (i) any notices relating to the PROPERTY (whether such notices are received form the U.S. Environmental Protection Agency, the Occupational Safety and Health Agency, California Environmental Protection Agency, the Orange County.Health Care Agency, the Regional Water quality Ccntrol Board, the Department of Sanita- tion,.the Department o° Public .Works or any other.federal, state or local governmental agency or regional office thereof). of vialations.or potential violations which are received by either SHELL or IRVINE, as the case may be, of any applicable federal, state or local laws, ordinances; or regulations; (ii) any and all enforcement, cleanup, remo•ral or other governmental or regulatory actions instituted, completed or threatened pursuant to any laws and relating to the FROPERTY; and (iii) all claims (arising cut of or related to the use and occupancy of the PROPERTY by SHELL, 995'11 and /or SHELL's employees, agents, contractors and subcontractors) made or threatened by any third'party against SHELL, IRVINE, or the PROPERTY relating.to damage, contribution, cost recovery, compensation, loss or injury resulting from the hydrocarbon contamination present at the PROPERTY. 2.2. Duration. SHELL's license to enter the PROPERTY in accordance with this Agreement shall continue in force until the hydrocarbon contamination has been sufficiently remediated /mitigated to be in compliance with, the PLAN and all applicable federal, state, county or local requirements, 1aws,..rules; regulations or ordi- nances. The initial stages of the REMEDIAL ACTIVITIES shall . consist of;. (i) SHELL's. receipt of written confirmation of acceptance ( "Acceptance ") of the PLAN from the.Orange County Health Care Agency and /or the Regional Water Quality Control Board; (ii) SHELL's receipt of the appropriate AQMD operating permit; and (iii) SHELL obtaining the necessary building and storage permits, from the City of Newport Beach. If and in the event that SHELL fails to diligently .pursue and /or complete all REMEDIAL ACTIVITIES (after written demand detailing what REMEDIAL ACTIVITIES have not been diligent- ly pursued or completed and giving SHELL thirty (30) days to respond to such notice,.except in the case of an emergency presenting imminent danger to persons or property), IRVINE shall have the right to do and /or.complete or have done for it or completed for it, any and all of the REMEDIAL ACTIVITIES, at the . sole cost and expense and'for the account of SHELL. 2.3. Duties of SHELL on Completion of REMEDIAL ACTIVI- TIES. Immediately upon completion of the REMEDIAL ACTIVITIES or.sooner, if, as and to the extent reasonable, feasible and practicable, SHELL and any.and all of its agents, employees, contractors and other authorized representatives, shall: (i) vacate and not thereafter reenter the PROPERTY; (ii) remove from the PROPERTY any and all tools, equipment, structures and materials used by SHELL. in performance of the REMEDIAL ACTIVI- TIES; and (iii) restore the surface of the PROPERTY to.the condition existing before SHELL's entry thereon pursuant to this Agreement. 2.4. Performance of REMEDIAL ACTIVITIES. 2.4.1. General. All REMEDIAL ACTIVITIES shall be performed in a good and workmanlike manner and shall comply, both during the course of any and all REMEDIAL ACTIVITIES, and as to the results of any and all such REMEDIAL ACTIVITIES, with all applicable governmental permits, laws, ordinances and regula- 92571 3 tions. At IRVINE's request, SHELL shall.procure and deliver to IRVINE,.. at.SHELL's expense, evidence of compliance with all then applicable codes, ordinances, regulations and requirements for permits and approvals from.various governmental bodies and agencies having jurisdiction. SHELL shall pay or cause to be paid the total cost and expense of all works or improvement, as that phrase is defined in the Mechanics' Lien Law in effect in California. SHELL shall not suffer or permit to be enforced against the PROPERTY any subcontractor's lien arising from any work or improvements., however it may arise. However, SHELL may in good faith and at SHELL's own expense contest the validity.of any such asserted lien, claim or demand, provided SHELL has furnished the bond required in California Civil Code Section 3143 (or any comparable statute hereafter.enacted for providing a bond freeing the PROPERTY from the effect of such a lien claim). Without limiting the generality of the 'foregoing, SHELL shall defend and indemnify IRVINE (as IRVINE.is defined in 'Section 2.7 hereof) against all liability and loss of any type arising out of work and REMEDIAL ACTIVITIES performed on the PROPERTY by or on behalf of SHELL, together with reasonable attorneys' fees and all costs and expenses incurred by IRVINE (as IRVINE is defined in Section 2.7 hereof) in defending or otherwise protecting against such claims. 2.4.2. Commercial General Liability Insurance. Prior to any entry under this Agreement, IRVINE must be.furnished with a policy or certificate of liability insurance ENDORSED TO INCLUDE.THE IRVINE COMPANY AS AN ADDITIONAL INSURED and including a thirty (30) day notice to IRVINE in the event of cancellation or any material change. In addition; this insurance policy shall be primary insurance with respect to any claim, loss or liability arising directly or indirectly from the certificate holder's operations, and any other insurance maintained by IRVINE shall be considered,excess and non - contributing.. This liability insurance. must be written with limits of liability not less than: One Million Dollars ($1;000;000.00) Combined Single Limit Bodily Injury Liability and Property Damage Liability per occurrence or the current limit carried, whichever is greater. The policy shall include: (1) owned, non -owned and hired vehicles, (2) blanket contractual, (3), broad form property damage, (4) prod- ucts/completed operations, and (5) personal injury,. SHELL shall also maintain Workers Compensation.and Employers Liability Insurance which shall he.included in the certificate of insur- ance. IRVINE will not be responsible for any costs of premium or other charges for such insurance. In lieu of any of the forego- ing insurance obligations,'SHELL may self- insure for any or all of such obligations, in whole or in part. To the extent that SHELL shall self- insure against any risk, SHELL does hereby agree to maintain adequate reserves against claims, losses and liabili- ties arising from causes which would otherwise have been covered by insurance and to reimburse, pay, indemnify and hold IRVINE (as IRVINE is.defined in Section 2.7 hereof) harmless and defend the 92571 4 Company against any and all claims, liabilities, losses, damages, expenses and costs which would otherwise have been covered by insurance required herein. 2.4.3. Removal of Drummed Wastes: SHELL shall date all drummed wastes and spoil piles generated as a result of its REMEDIAL ACTIVITIES. Unless approved by IRVINE in writing, SHELL shall remove all such drummed wastes and spoil piles, at SHELL's sole cost and expense, no later than thirty (30) business days after their respective dates of generation. 2.5. IRVINE Access to Information re REMEDIAL ACTIVI- TIES. Until final closure, IRVINE shall, at all times, have the right to any and all of SHELL'S relevant records, files, reports, permits and correspondence with environmental enfor- cement agencies and others relating to the REMEDIAL ACTIVITIES and SHELL shall make any and all such items available to IRVINE. 2.6. Obligations and Duties of IRVINE. IRVINE shall permit SHELL, and SHELL's agents or authorized representatives, to enter in and on the PROPERTY in accordance with this Agreement to make tests, surveys or other studies and, in general, to conduct any and all REMEDIAL, ACTIVITIES if, on condition, and to the extent that, the perfor- mance.of any and all such REMEDIAL ACTIVITIES do not disturb' the quiet enjoyment and possession of the PROPERTY by any tenant thereon. The permission referred to herein shall be deemed and construed solely as a temporary license, and nothing else, limited by the terms and provisions of this Agreement. IRVINE agrees to reasonably cooperate with SHELL in connection with SHELL's performance of the REMEDIAL ACTIVITIES by. executing applications for governmental permits or approvals affecting the PROPERTY, provided that IRVINE shall not bear any,expense in connection therewith, and provided, further, that such ap- plications shall be limited so that the status of the PROPERTY and the relationship between the parties hereto will not be changed thereby. 2.7. Indemnity. Except as otherwise limited by paragraph 2.8, Shell. shall be responsible for, and shall and does hereby indemnify and hold IRVINE harmless from and against any and all claims, judg- ments, or liabilities, including penalties, interest and attorneys' fees, arising out of, related to, connected with or attributable to SHELL's (and SHELL's sublessees, agents,, contrac- tors or subcontractors and /or any third persons, firms and /or entities for whose activities SHELL is or was responsible) use, occupancy or presence on the PROPERTY, at .any time (prior or 92572 - 5 subsequent to the date of this Agreement), and whether or not in, or arising out of, related to; or connected with, the course or performance of the REMEDIAL ACTIVITIES hereunder, including, without limitation: (i) the remediation or mitigation of the PROPERTY, including the.soil and groundwater thereof, and the preparation and implementation of any closure, remedial or other required plans; and; (ii) any damage, injury or loss to any person,.firm, entity,.property (real or personal)..or natural resources, if and to the same extent that IRVINE is or is alleged to be liable with respect thereto. .Without limiting the general- ity of the foregoing.: IRVINE shall have the right but not the obligation to join and participate in, as a party if it elects, . any.legal proceedings or actions initiated in connection.with. the REMEDIAL ACTIVITIES and any.other matter covered by this indemni- ty. For purposes of this indemnity.provision, "IRVINE" shall be conclusively deemed and construed to mean, refer to and include: (i) IRVINE and its directors, officers, shareholders; agents and employees; and, (ii).any,successor -in- interest of.IRVINE (as owner, and /or lessee of any part or.all of the PROPERTY); and (iii) any lender with respect to all or any part of the PROPERTY:' 2.8. Exceptions to Indemnity and Obligations. SHELL's obligations and indemnities as set out in this Agreement shall not include, and SHELL will not be responsible for, any matters; which are attributable to: (i) hydrocarbon or other contamination resulting from activities notarising out of, connected with or attributable or related to SHELL's use and occupancy of the PROPERTY at any time; and /or (ii) any contamination resulting from activities undertaken at the PROPER- TY after SHELL's use, presence on and occupancy of the PROPERTY; and/or (iii) activities conducted off -the PROPERTY (by other than SHELL and or persons for whose actions SHELL'is responsible.) which have resulted in contamination of the PROPERTY.. 2.9. Agreement not Admission. This Agreement shall not be construed or interpreted as an admission or concession of.liability on the part of. either SHELL or IRVINE. 3. Miscellaneous Terms and Provisions. 3.1. Severability. The unenforceable, invalidity or illegality of any term or provision of this Agreement shall not affect the remainder of the Agreement. 92571 6 3.2 Inurements. Each and all of the covenants and conditions of this Agreement shall be binding on and inure to the benefit of the heirs, successors, executors, administrators, as.signs and person- al representatives of the respective parties. 3.3. No Supercession.. Except as otherwise provided hereunder, the provisions of this Agreement are in addition to and do not supersede, the provisions of any other agreement between SHELL and IRVINE, including the SHELL Lease. Each party has.relied on its own examination of this Agreement, the counsel of its own advisors, and the terms and conditions of the Agreement itself. 3.4. Gender /Number. . The singular number includes the plural whenever the context so indicates or requires. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the neuter, and each includes corporation, partnership or other legal entity when.the context so indicates or requires. 3.5. Captions. The captions of the various paragraphs of this Agree- ment are for convenience and ease of reference only and .do not define, limit, augment or describe the.scope, content or intent of this Agreement.or any part of.this Agreement. 3.6. Attorneys Fees If any party brings an action or proceeding to enforce, protect or establish any right or remedy concerning this Agree- ment, the prevailing party shall be entitled to receive reason- able attorneys' fees in addition to its costs. Arbitration is an action or proceeding for purposes of this-provision. 3.7. Waivers /Defaults. No waiver of any default shall constitute a waiver of any other breach or default, whether of the same or,of any other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by either party shall give the other any contractual right by custom, estoppel or otherwise. 3.8. Governing Law. This Agreement, except if and to the extent preempted by or otherwise contemplating application of the laws of the 92571 7 United States, shall be interpreted in accordance with and shall be governed by California law. Any'dispute under this Agreement, shall be .adjudicated in California and.proper venue shall be in the County of Orange. 3.9..Counterparts. This Agreement may be executed.in one or more counter- parts, each of which shall be deemed an original; but all of which, together, shall constitute one and the same instrument. 3.10. Parties in Interest. Except as otherwise specifically set forth in this Agreement, nothing in this Agreement,. whether express or, implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties 'to it and their respective successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligations or liability.of any person to any party to this Agreement,.nor shall, any provision give any third person any right of subrogation oz- action over against any party.to this Agreement. 3.11. Quitclaim. Upon the completion of the REMEDIAL ACTIVITIES by SHELL, SHELL, shall, at,IRVINE's request, execute, acknowledge and 'deliver to IRVINE a quitclaim deed with respect to the PROPERTY, in recordable form. 3.12. Further Acts. Each party hereto agrees to .and execute, acknowledge and deliver . may be reasonably necessary to carry of this Agreement. . 3.13. Definitions. perform any further.acts any further documents that out the terms and provisions The definitions contained in this Agreement shall be used to interpret the terms, provisions, covenants and conditions contained in it. 3.14. Authority The persons executing this Agreement on behalf of a corporate or partnership party hereto represent and warrant that they have full right, power and authority to do so, and.that they have been expressly authorized to bind the corporate signatory to full performance of this Agreement and no other or further consents or approvals of any persons, firms, or entities are necessary in connection with it. 92572 8 3.15. Notices 0 All notices, requests, demands, and other communica- tions under this Agreement shall be in writing and shall be deemed to have been duly.given.on the date of service if served personally on the party to whom notice is to he given, or on the third (3rd) day after mailing if mailed:to the party to whom notice is to be given, by first class mail, registered or.certi- fied postage prepaid, and properly addressed as .followed: To SHELL at: Kr. J. B. Holland Shell Oil Company' 511 N. Hrookhurst St. Anaheim, CA 92803 To IRVINE at: Irvine Retail Properties Co.' 550 Newport Center Drive 6th Floor Newport Beach, CA 92660' Attn: General Counsel Any party may change his /its address for purposes of this paragraph and this Agreement by giving the .other parties written notice of the new 'address in the manner set forth above. 3.16. Amendments No supplement, modification or amendment of this Agreement shall he binding unless executed in writing by all of the parties to this Agreement. 3.17. Survival of Warranties- Representations - Indem- nities All indemnities, representations, warranties, covenants and agreements of the parties contained in this Agreement, or in any.instrument, certificate, opinion, or other writing provided for in-it, shall continue and survive. Without limiting the generality of the foregoing., any and all of SHELL's indemnities set forth in this Agreement shall survive the execution and delivery of this Agreement, the completion of this REMEDIAL Activities and any.lease, sale, assignment, exchange, conveyance or other disposition.of the PROPERTY by IRVINE. 3.18. Exhibits. All exhibits to which reference is made in this Agree- ment are and shall be deemed incorporated in this Agreement, whether or not actually attached. 9 3571 9 i IN WITNESS WHEREOF, the parties hereto have executed and delivered this instrument as of the date first above written. THE IRVINE COMPANY. SHELL OIL COMPANY a Michigan corporation a Delaware corporation G By; By: cn ./ Fre k 0. Evans M D.. SCHLICHTE, Manager /(1 Vice/,President- So. Calif. Retail District By; l ''.John Tsu Vice President, Finance Investment Properties Group i