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C-6301 - Civic Center Lease Agreement
Memorandum of Lease Recorded in Official Records, Orange County RECORDING REQUESTED ANDHugh Nguyen, Clerk -Recorder WHEN RECORDED RETURN TO: III IIIIIIIII III 11111111 III 1111 II NO FEE *$ R Q Q Q 7 9 2 2 1 2 8$* Office of the City Clerk 20150005575861:36 pm 10127/15 City of Newport Beach 62 411 M11 9 100 Civic Center Drive 0.00 0.00 0.00 0.00 24.00 0.00 0.00 0.00 Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code Sec. 6103] MEMORANDUM OF LEASE AGREEMENT WITH OPTIONS FOR RENEWAL This MEMORANDUM OF LEASE Agreement With Options for Renewal ("Memorandum") is dated 1.�,Ep i 2-2 , 2011�, and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City") and Credit Union of Southern California ("Tenant"), a California corporation, concerning the Premises described in Exhibit 'A," attached hereto and by this reference made a part hereof. The term of the Lease is five (5) years, commencing 1 -'k -PT 2"2 , 2015, and ending,P'T 2-2 , 2020. Tenant and City may extend the Term of this Agreement for two (2) additional successive terms of five (5) years each. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: By:� Aaron C. Harp City Attorney ATTEST: /01Date: A(. b— By: Leilani I. Bro2"!'7 ! City Clerk GV=aa_ ►� UI cC�, `FOR N % P-' CITY OF NEWPORT BEACH, a California municipal cor oration Date: By: �--� David Kiff City Manager TENANT: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corporation�� Date:�i A By Dave Gunderson Presider}t/CO Date: �.(o I S �2 o N By: —5�k Peter Putn Chief Fina c I Officer [NOTE: Attach Exhibit A from Agreement as Exhibit to this Memorandum behind attached Notary form] ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE ) On Orlobe/' 0`1�2-0 f S- before me, S,'An A r+ Notary Public, personally appeared'. 17c&rd Ede,&a ;c,n who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity(ies), and that by his signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 9 ignature JUSTIN ART Commission # 2058381 Notary Public - California z i Orange County D (seal) M Comm.Ex iresFe�b 117, 2018+ ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE ) On Orta Ger 5 fh,7-©i.5— . before me, `5s Sl c,1 4. K4— , Notary Public, personally appeared EP h-1- tEf f 14 QM who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. -;w;,•� JUSTIN ART Commission #t 2058381 / (seal) i Notary Public - California i Signature = Orange County MY Comm. Expires Feb 17, 2018 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 110-1 C. C.•_a:c(_:�C_s. _c�C_.. -�S_a s.<.•_..b� a�,.c�C: �iC s.!:�C42_..S.0 ._...`_sc �._s.•:.� .�C•.••a� :� �i .� .�.{ C4cG A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County oft2��ty On CCT lr, I201S before me, laves "lFeo , �AN1j rl�uLv4tE ;P tC Date Here Insert Name and Title of the Officer personally appeared )Aj e k 11' F-- Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s} whose name(s) Ware 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/herAheir-signature(syon the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. JENNIFER ANN MULVEy Commission # 2045022 Signature 01 E i _ Notary Public - california z g Oran a conn > St.gnature of Notary Public My Comm, Exires Oct 12, 2017 + _l Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General Cl Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: EXHIBIT " Y Depiction of Premises 1. yrs; Twi �r�3..1. k't�a k,-. 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P 13 Civic Center Lease Agreement Between the City of Newport Beach And Credit Union of Southern California v This Civic Center Lease Agreement ("Agreement") is made and entered into as of the 22nd day of September, 2015 ("Effective Date"), by and between the City of Newport Beach ("City"), a California municipal corporation and charter city, and Credit Union of Southern California, ("Tenant"), a California corporation. RECITALS A. The Civic Center located at 100 Civic Center Drive, Newport Beach, California includes a newly constructed City Hall, City Council Chambers, a public park, and an expansion of the existing Central Library located at 1000 Avocado Avenue, Newport Beach ("Project"). The Project includes a five hundred seventy-nine (579) square foot retail space which is depicted on Exhibit "A" and incorporated herein by this reference ("Premises"). B. The City issued a Request for Proposals (No. 13-18) for Civic Center Retail/Service Space on November 21, 2012. C. After a careful evaluation process and a recommendation from the Library Board, the City selected Tenant to operate a financial institution, including an automatic teller machine (ATM) at the Premises. D. Tenant and City desire to enter into this Agreement to allow Tenant to operate a financial institution, intended to provide an automatic teller machine ("ATM") and full service Credit Union offering a wide range of financial products to library visitors and staff, city hall visitors and staff, and the general public in accordance with Tenant's customary terms and eligibility requirements ("Credit Union"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants herein contained, City and Tenant hereby agree as follows: 1. DEFINITIONS 1.1 General Definitions. As used in this Agreement, the following words and phrases shall have the following meanings: (a) Alteration - any improvements, additions, alterations, changes, or modifications of the Premises made by Tenant including, but not limited to fixtures and signage. designee. (b) Authorized City Representative - the City Manager or his/her (c) Common Area - the areas within the Project which are available for non-exclusive use by City, Tenant, the public, and other tenants and/or users. (d) Delivery Date - the date the City provides Tenant access to the space prior to Rent Commencement, in order for Tenant to prepare space for operation. (e) Expiration - the lapse of the time specified as the Term of this Agreement, including any extension of the Term resulting from the exercise of an option to extend. (f) Good Condition - neat and broom -clean and in substantially the same condition as of the Delivery Date of the Premises to Tenant, and is equivalent to similar phrases referring to physical adequacy in appearance and for use. (g) Law - any judicial decision, statute, constitution, ordinance, resolution, regulation, rule, administrative order, or other requirement of any municipal, county, state, federal, or other government agency or authority having jurisdiction over the parties hereto or the Premises. (h) Maintenance or Maintain - repairs, replacement, maintenance, repainting, and cleaning. (i) Person - one (1) or more natural persons, or legal entities, including, without limitation, partnerships, corporations, trusts, estates, associations, or a combination of natural persons and legal entities. Q) Provision - any term, covenant, condition, or clause in this Agreement that defines, establishes, or limits the performance required or permitted by either party. (k) Rent - includes Base Rent, taxes, and other similar charges payable by Tenant under the provisions of this Agreement. (1) Rent Commencement - date Tenant begins paying Rent, commencing thirty (30) calendar days after the Delivery Date or first day Tenant is open for business from the Premises, whichever occurs first. (m) Successor - assignee, transferee, personal representative, heir, or other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to the rights or obligations of either Party. (n) Termination - the termination of this Agreement, for any reason, prior to Expiration. 1.2 Other Definitions. - The following additional terms are defined in the following sections of this Agreement: (a) Base Rent §4.1 (b) Claim or Claims §10.1 (c) Hazardous Materials §16 (d) Indemnified Parties §6.3 (e) Option Term(s) §3.2 (f) Project Recitals, §A (g) Premises Recitals, §A 2. City finds it to be in the public interest and consistent with public facility uses to grant an exclusive right to operate a financial institution at the Premises. Therefore, pursuant to the terms and conditions set forth herein, City hereby grants to Tenant the exclusive right and privilege to conduct a business at the Premises engaged in operating a full service Credit Union described in Section 5.1, Business Purposes. Tenant agrees to accept the Premises in an "as is" condition as tendered by City. Tenant agrees that no representations with respect to the condition or improvements of the Premises have been made by City except as specifically set forth in this Agreement. 3. TERM 3.1 Term of Agreement. The Term of this Agreement shall be five (5) years from the Effective Date unless terminated sooner as provided in Section 15, or extended as provided in Section 3.2. 3.2 Option to Extend. Provided Tenant is not then in default, and upon approval of the City, Tenant and City may extend the term of this Agreement for two (2) additional successive terms of five (5) years (the "Option Term" or "Option Terms") the first commencing on Expiration of the initial Term and the second commencing on Expiration of the first Option Term, on the same terms and conditions as contained in this Agreement. Tenant must exercise the option by giving City written notice of its intention to do so at least six (6) months prior to Expiration of the initial Term or the first Option Term. 3.3 Hold Over. Should Tenant, with City's consent, hold over and continue in possession of the Premises after Expiration of the Term or any Option Term, Tenant's continued occupancy of the Premises shall be considered a month-to-month tenancy subject to all the terms and conditions of this Agreement, except the provisions of Sections 3.1 and 3.2. 4. RENT 4.1 Base Rent. Tenant shall commence payment of Base Rent upon the Rent Commencement Date, which shall be no later than thirty (30) calendar days after the Delivery Date. The Base Rent shall be established at the fair market value rate of Twenty -One Thousand and 00/100 Dollars ($21,000.00) per year. Base Rent shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) per month). Base Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term. Annually, upon each successive anniversary date of the Effective Date, the Base Rent shall be increased three percent (3%). 4.2 Reserved. 4.3 Payment Location. Rent shall be payable at the office of the City's Revenue Division at 100 Civic Center Drive, Newport Beach, California, or at such other place or places as City may from time to time designate by written notice delivered to Tenant; or by electronic delivery if mutually agreed upon by City and Tenant. 4.4 Late Payment. Tenant hereby acknowledges that the late payment of Rent or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Tenant not paid within five (5) days of its due date shall be subject to a ten percent (10%) late charge. City and Tenant agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Tenant. 4.5 Interest on Unpaid Sums. Unpaid sums due to either City or Tenant under this Agreement shall bear interest at the rate of ten percent (10%) per annum on the unpaid balance, including but not limited to late payment penalties, from the date due until paid. 5. BUSINESS PURPOSES AND USE OF PREMISES 5.1 Business Purposes. The Premises are to be used by Tenant for the operation of a financial institution, intended to provide an ATM and a full service Credit Union offering a wide range of financial products to library visitors and staff, city hall visitors and staff, and the general public in accordance with Tenant's customary terms and eligibility requirements. 5.2 Operation of Premises. Tenant shall operate and manage the Premises in a manner comparable to other high quality businesses providing similar services. Deliveries to the Premises shall be made and completed only between 7:00 a.m. and 6:00 p.m. on non -holiday weekdays. The loading zone designated for use by Tenant for deliveries, as shown on Exhibit "B", is shared with the Central Library and concession tenant ("Concessionaire") located at the Project, and priority shall be given to deliveries for the Central Library and Concessionaire. 5.3 Prohibited Uses. Tenant shall not sell or permit to be kept, used, displayed or sold in or about the Premises (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia, or other material which would be considered lewd, obscene or licentious, (b) any article which may be prohibited by standard forms of fire insurance policies. Vending machines, gaming machines or video or arcade games shall not be used or installed on the Premises unless expressly permitted by this Agreement. Tenant shall not use or permit the use of the Premises in any manner that (a) creates a nuisance or (b) violates any Law. Tenant shall not offer entertainment or broadcast music or entertainment through exterior speakers or other form of transmission without the written approval of City. In this event, Tenant shall obtain all required City permits and approvals. 5.4 Common Areas. Tenant may not expand into the Library area, or other public areas at the Project, or place any temporary furniture, advertising displays, or objects in the public areas of the Project without prior written approval of the City and coordination with the Library. 5.5 Operation. Tenant shall keep the Premises in operation and open to the public for business on a daily basis, in accordance with the following schedule: Monday through Thursday from 9:00 a.m. to 6:00 p.m. Friday from 9:00 a.m. to 5:30 p.m. Saturday from 9:00 a.m. to 1:00 p.m. Tenant shall be closed on all City observed holidays, including but not limited to New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, 4th of July, Labor Day, Veteran's Day, Thanksgiving Day and Friday following, Christmas Day, and any other day the Central Library may be closed as designated by the City Manager or the Library Services Director. Tenant may close the Premises during periods of remodeling, reconstruction, inventory and emergencies or to comply with applicable state or federal banking Laws and regulations with prior written approval from the City. 5.6 Equipment. Tenant shall install, at Tenant's own expense, additional equipment as listed on Exhibit "C" required to provide the financial services offered by Tenant, and which may be necessary to operate Tenant's business. Tenant shall ensure that additional equipment is installed properly pursuant to the manufacturer's specifications, does not exceed the electrical or other utility loads designated for the Premises, and is in compliance with all applicable local and state building codes and any applicable state or federal banking regulations. 5.7 Advertising Display. Tenant may, at its own expense, place unlit signs in or upon the Premises subject to the prior written consent of the City as to the size, type, number, design and method of installation and in compliance with the City's sign code regulations and the deed restrictions applicable to the Premises. All signage placed by Tenant on, in or about the Premises shall remain the property of Tenant and shall be removed by Tenant upon Termination or Expiration of this Agreement at Tenant's expense; and any damage caused by removal shall be repaired at Tenant's expense. 5.8 Marketing. Tenant may, at its own expense, promote Credit Union of Southern California and distribute marketing materials subject to the written approval of the City and the conditions and restrictions of the Agreement of Mutual Understanding Regarding Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase recorded on May 8, 1992 as Instrument No. 92-304757 by and between The Irvine Company LLC and the City of Newport Beach, attached as Exhibit "D", and incorporated herein by reference. 5.9 Personnel. Tenant shall be responsible for hiring the necessary personnel to conduct the daily operation of Premises. Tenant shall comply with all federal, state, and local Laws related to minimum wage, social security, nondiscrimination, ADA, unemployment compensation, and workers' compensation. If required by the City, Tenant's employees shall wear a uniform and/or identification badge. 5.10 Independent Contractor. It is understood that Tenant and its employees are an independent contractor and not an agent or employee of City. Nothing in this Agreement shall be deemed to constitute approval for Tenant or any of Tenant's employees or agents, to be the agents or employees of City. City shall have no interest in the business of Tenant. 5.11 No Distress Sales. No auction, fire, bankruptcy, "going out of business" or other distress sales of any nature may be conducted on the Premises without the prior written consent of the City Manager. 5.12 Restroom Facilities for Employees. Tenant, its employees and customers shall have full use of restroom facilities located within the Central Library as called out on Exhibit "B". Restroom facilities are shared with the Central Library employees and visitors, and are considered Common Area. 5.13 Parking for Employees. Tenant may use up to two (2) non-exclusive parking spaces for Tenant and its employee's vehicles, located within the parking structure at the Project on level two (2) or above. 5.14 Building Access and Security. Access to the Premises is limited to the hours the library has staff on-site. No after-hours access to the Premises will be available to Tenant unless arranged in advance with the City Manager or his/her designee, or the Library Services Director or his/her designee. Tenant is responsible for securing the Premises during non -business hours, including but not limited to security of equipment, personal property, valuables, and the ATM machine within the Premises; pursuant thereto, Tenant shall have the right to install, at its own cost, its own security system ("Security System") in or about the Premises so long as the Security System does not materially interfere with the Central Library's operations. 6. TAXES, LICENSES AND OTHER OBLIGATIONS 6.1 Payment of Taxes. Tenant shall pay directly to the appropriate taxing authorities all taxes applicable to this Agreement, fixtures and Tenant's personal property on the Premises, that are levied or assessed against Tenant during the Term. Taxes shall be paid at least ten (10) calendar days before delinquency and before any fine, interest or penalty is due or imposed by operation of law. Tenant shall, upon request, promptly furnish to the City satisfactory evidence of payment. Tenant acknowledges that this Agreement may create a possessory interest subject to property taxation and that Tenant may be subject to the payment of property taxes levied on such interest. Tenant shall pay, before delinquency all taxes, assessments, license fees and other charges ("Taxes") that are levied or assessed against Tenant's interest in the Premises or any personal property installed on the Premises. 6.2 Payment of Obligations. Tenant shall promptly pay, when due, any and all bills, debts, liabilities and obligations incurred by Tenant in connection with Tenant's occupation and use of the Premises. 6.3 Challenge to Taxes. Tenant shall have the right in good faith, at its sole cost and expense, to contest the amount or legality of any Taxes on or attributable to this Agreement, the Premises, Tenant's personal property, or Tenant's occupation and use of the Premises, including the right to apply for reduction. If Tenant seeks a reduction or contests such taxes, Tenant's failure to pay the Taxes shall not constitute a default as long as Tenant complies with the provisions of this Section. City shall not be required to join in any proceeding or contest brought by Tenant unless the provisions of any Law require that the proceeding or contest be brought by or in the name of City. In that case, City shall join in the proceeding or contest or permit it to be brought in City's name as long as City is not required to bear any cost. If requested by Tenant, City shall execute any instrument or document necessary or advisable in connection with the proceeding or contest. Tenant, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, together with all related costs, charges, interest and penalties. Tenant shall indemnify, defend and hold harmless the City, its council members, boards, commissions, committees, officers, employees, Authorized City Representatives, agents and volunteers ("Indemnified Parties") from and against any liability, claim, demand, penalty, cost or expense arising out of or in connection with any contest by Tenant pursuant to this Section. 7. UTILITIES. Tenant shall be responsible for payment of all utilities furnished to or used at the Premises exclusively by Tenant, or for paying Tenant's pro -rata share of utilities furnished to or used on the Premises, including, without limitation, gas, electricity, sewer, water, refuse collection, telephone service, and cable TV. Tenant's pro -rata share shall be included on base rent invoices each quarter. Tenant may use City's trash enclosures or public trash cans, provided however, that City may, at City's discretion, require Tenant to arrange for its own refuse collection. Refuse collection shall occur between 7 a.m. and 6 p.m. on non -holiday weekdays. 8. ALTERATIONS TO THE PREMISES. 8.1 Tenant Improvements. Tenant acknowledges that City has delivered the Premises with the improvements shown on Exhibit "A". Further improvements by the Tenant must be submitted for review of improvement plans and permitting, and construction shall be subject to the prior written approval of the City Manager. Tenant improvements shall be performed between 7 a.m. and 6 p.m. on non -holiday weekdays. Any contractors hired by Tenant shall be fully licensed and bonded. Tenant's contractors and any subcontractors shall obtain insurance in an amount and form to be approved by City's Risk Manager, including workers compensation insurance as required by law, general liability, automobile liability and builder's risk insurance covering improvements to be constructed, all pursuant to standard industry custom and practice. City shall be named as an additional insured on the contractors and any subcontractors policies. 8.2 Permits. Unless restricted by law, Tenant shall obtain, and be responsible for the costs for, all building permits, and other required permits prior to commencement of Tenant improvements and operations. 8.3 Quality of Work Performed. All Alterations, maintenance and other work shall be performed in a good and workmanlike manner, shall comply with the plans and specifications submitted to City, and shall comply with all applicable governmental permit requirements and Laws in force at the time permits are issued. 8.4 Payment of Costs. Tenant shall pay all costs related to the construction of the improvements and any Alterations by Tenant or its agents. 8.5 Liens. Tenant shall keep the Premises free from any liens arising out of any work performed, material furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. 8.6 Disposition of Alterations at Expiration or Agreement Termination. Any Alterations made to the Premises shall remain on, and be surrendered with, the Premises on Expiration or Termination of this Agreement (excluding Tenant's fixtures, equipment, furniture, and moveable decorations). However, City may elect not less than one hundred eighty (180) calendar days prior to Expiration or Termination of this Agreement, to require Tenant to remove any Alterations that Tenant has made to the Premises. If City requires removal of Alterations, Tenant shall, at its cost, remove the Alterations and restore the Premises to a broom -clean condition before the last day of the Term. Prior to Expiration or within fifteen (15) calendar days after Termination of this Agreement, Tenant may remove any moveable partitions, machinery, equipment, furniture, and trade fixtures previously installed by Tenant, provided that Tenant repairs any damage to the Premises caused by removal. 9. MAINTENANCE OF PREMISES 9.1 Maintenance and Repair by Tenant and Citv. Tenant agrees that it will keep the Premises in Good Condition. Additionally, Tenant shall be responsible for clearing away trash, and debris if advertising materials are distributed from the Premises, from the floors and tables located in the entry atrium and on the patio where customers will likely congregate. City may perform Maintenance or repairs in the event Tenant fails to commence required Maintenance or repairs within the time provided by City in the notice requesting such Maintenance or repair. The cost of any Maintenance or repairs by the City pursuant to this Section shall be payable as additional Rent. All furnishings, equipment, facilities, improvements, Alterations, attachments and appurtenances provided by City or installed by Tenant, and required for operations, including all ATM equipment and interior furnishings, including items under warranty, shall be maintained in Good Condition and repair by Tenant at its cost. City may perform required cleaning and charge the costs to Tenant if the Tenant fails to perform within the time provided by City in the notice requesting the cleaning and continue to Maintain the area as required by this Agreement. 9.2 Entry by City. Upon twenty-four (24) hour notice to Tenant, City and its Authorized City Representatives may enter upon and inspect the Premises at any reasonable time for any lawful purpose. In case of emergency, City or its Authorized City Representative may, without prior notice, enter the Premises by whatever force necessary if Tenant is not present to open and permit an entry. Any entry to the Premises by City shall not be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof. 10. INDEMNITY AND EXCULPATION 10.1 Hold -Harmless Clause. Tenant agrees to indemnify, defend and hold harmless the City, its City Council, Boards, Commissions, Committees, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim'; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to Tenant's possession, occupation or use of the Premises, specifically including, without limitation, any claim, liability, loss, or Damage arising by reason of: (a) The death or injury of any Person or damage to personal property caused or allegedly caused by the condition of the Premises or an act or omission of Tenant or an agent, contractor, subcontractor, supplier, employee, servant, or sublessee of Tenant; (b) Any work performed on the Premises or materials furnished to the Premises at the request of Tenant or any agent or employee of Tenant, with the exception of Maintenance performed by City; and/or (c) Tenant's failure to perform any provision of this Agreement or to comply with any requirement of Law or any requirement imposed on the Premises by any duly authorized governmental agency or political subdivision. Tenant's obligations pursuant to this Subsection shall not extend to any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 10.2 Exculpation of City. Except as otherwise expressly provided in this Agreement, City shall not be liable to Tenant for any damage to Tenant or Tenant's property from any cause other than the sole negligence, intentional or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this Agreement, Tenant waives all claims against the Indemnified Parties arising for any reason other than the sole negligence, intentional or willful acts of the Indemnified Parties. City shall not be liable to Tenant for any damage to the Premises, Tenant's property, Tenant's goodwill, or Tenant's business income, caused in whole or in part by acts of nature such as earthquakes, floods, fire or other natural disaster. 11. INSURANCE Without limiting Tenant's indemnification of City, Tenant will obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described in Exhibit "E" attached hereto and incorporated herein by this reference. 12. DAMAGE OR DESTRUCTION OF PROJECT/PREMISES 12.1 Destruction of Premises. If the Premises are totally or partially destroyed, rendering the Premises or any portion thereof totally or partially inaccessible or unusable, Tenant shall restore the Premises to substantially the same condition as immediately prior to such destruction (including all trade fixtures, personal property, improvements and Alterations as are installed by Tenant, which shall be replaced by Tenant at its expense). Tenant may elect to terminate this Agreement by giving notice of such election to City within sixty (60) calendar days after the date of the occurrence of any casualty if the cost of the restoration exceeds the amount of any available insurance proceeds, or if Tenant reasonably estimates that repairs of the Premises will take more than six (6) months. Upon such termination, insurance proceeds applicable to reconstruction of the Project (excluding Tenant's personal property therein) shall be paid to City and Tenant shall have no further liability or obligations under this Agreement. 12.2 Replacement of Tenant's Property. In the event of damage or destruction of improvements located on the Premises not giving rise to Tenant's option to terminate this Agreement, Tenant shall, at its own expense, replace and repair all Tenant's trade fixtures, equipment, machinery, furnishings, furniture and inventory as soon as reasonably possible to permit the prompt continuation of Tenant's business at the Premises. 12.3 Destruction of Proiect. In the event that all or a portion of the Project is damaged, and the Premises or a material portion becomes inaccessible or commercially unusable, and the damage or destruction cannot reasonably be repaired within twelve (12) months after the date of the casualty, City shall have the right to either: (a) Terminate this Agreement by giving to Tenant written notice (which notice shall be given, if at all, within thirty (30) calendar days following the date of the casualty), in which case this Agreement shall be terminated thirty (30) calendar days following the date of the casualty; or (b) Give Tenant written notice of City's intention to repair such damage as soon as reasonably possible at City's expense, in which event this Agreement shall continue in full force and effect; however, Rent shall be abated in accordance with the procedures set forth in Section 13. Tenant may terminate this Agreement by giving City written notice at any time prior to the commencement of repairs if City agrees to repair the Project pursuant to this Section and fails to commence repairs within one hundred twenty (120) calendar days after giving Tenant written notice of its intention to repair. In such event, this Agreement shall terminate as of the date of notice from Tenant to City, and City shall have no liability under this Agreement. 13. ABATEMENT OF RENT 13.1 General Rule. In the event of damage or destruction of the Premises or Damage to the Project that impacts the Premises and this Agreement is not terminated, Tenant shall continue to utilize the Premises for the operation of its business to the extent it may be practicable and commercially reasonable. Rent shall abate only in proportion to the area of the Premises that is rendered unusable. The abatement of Rent shall commence on the date that use of the Premises is impacted and continue until the completion of those repairs necessary to restore full use of the Premises and Tenant's re -opening of the Premises. Tenant's obligation to pay Taxes pursuant to this Agreement shall not be abated or reduced. Rent shall not abate if the damage or destruction to the Premises is the result of the negligence or willful conduct of Tenant or its employees, officers or agents. Tenant's right to abatement of Rent is contingent on payment of insurance proceeds, if any, equal to the amount of Rent pursuant to coverage required by Exhibit "E". 13.2 Abatement/Maintenance. Tenant shall not be entitled to any abatement of Rent for Maintenance that occurs during the Maintenance period. 14. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND ENCUMBERING 14.1 Prohibition of Assignment. City and Tenant acknowledge that City is entering into this Agreement in reliance upon the experience and abilities of Tenant. Consequently, Tenant shall not voluntarily assign or encumber its interest in this Agreement or in the Premises, or assign substantially all or any part of the Premises, or allow any other person or entity (except Tenant's authorized representatives) to occupy or use all or any part of the Premises without the prior written consent of City, which shall not be unreasonably withheld. Any assignment or transfer made without the City's written consent is null and void. City's consent to any assignment or other transfer is subject to Tenant providing City with evidence reasonably satisfactory to City that the proposed transferee has financial strength and financial experience comparable to Tenant and the use of the Premises by the proposed transferee is consistent with the terms of this Agreement. Except as otherwise expressly provided herein, any dissolution, merger, consolidation, reorganization of Tenant, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Tenant, shall be deemed a voluntary assignment; provided, however, that the sale or transfer of a controlling percentage of the capital stock of Tenant pursuant to a public offering(s) of equity or debt instruments issued by Tenant, or other transfers of publicly traded capital stock or debt instruments shall not constitute a voluntary assignment and shall not require City's consent or approval. The phrase "controlling percentage" means the ownership of, or the right to vote, stock possession of at least fifty percent (50%) of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors, except for ownership of publicly traded shares, warrants or similar equity interests in Tenant traded on a national exchange or over-the-counter markets. 14.2 Exceptions. Notwithstanding the foregoing paragraphs or anything to the contrary contained herein, City's consent shall not be required for an assignment or subletting to an Affiliate, Subsidiary, or Successor of Tenant. For purposes hereof, an "Affiliate", a "Subsidiary', and a "Successor" of Tenant are defined as follows: (a) an "Affiliate" is any corporation or other entity which directly or indirectly controls or is controlled or is under common control with Tenant (for purposes of this Section, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation or other entity, whether through the ownership of voting securities or by contract or otherwise); (b) a "Subsidiary" shall mean any corporation or other entity not less than twenty-five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Tenant and which is at least as creditworthy as Tenant; and (c) a "Successor" shall mean a corporation or other entity in which or with which Tenant is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations or a corporation or other entity acquiring a substantial portion of the property and assets of Tenant. 14.3 Continuing Effect. City's consent to any assignment or encumbrance shall not relieve Tenant from its obligations or liabilities under this Agreement nor act as a waiver of the requirement that such consent be obtained to any subsequent assignment or encumbrance. 15. DEFAULT 15.1 Default by Tenant. The occurrence of any one (1) or more of the following events shall constitute a default and material breach of this Agreement by Tenant: (a) The vacating or abandonment of the Premises by Tenant for a period of sixty (60) successive calendar days, without the prior permission of the Authorized City Representative, excluding closures during periods of casualty, condemnation or permitted closures set forth in this Agreement; (b) The failure by Tenant to make any payment of Rent or any other payment required by this Agreement, as and when due, when such failure shall continue for a period of ten (10) calendar days after written notice of default from City to Tenant; (c) Except as specified in Subsection 15.1(b), the failure of Tenant to observe or perform any of the material covenants, conditions or provisions of this Agreement to be observed or performed by Tenant where such failure shall continue for a period of thirty (30) calendar days after written notice thereof from City to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty (30) calendar days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) calendar day period and thereafter diligently prosecutes such cure to completion; (d) The making by Tenant of any general arrangement or assignment for the benefit of creditors; (e) Tenant becomes a "debtor' as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) calendar days); (f) The appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Agreement, where such appointment is not discharged within sixty (60) calendar days; and (g) The attachment, execution or the judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Agreement, where such seizure is not discharged within sixty (60) calendar days. 15.2 Remedies. (a) Cumulative Nature of Remedies. If any default by Tenant shall continue without cure as required by this Agreement, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative. (1) Re-entry without Termination. City may re-enter the Premises, and, without terminating this Agreement, re -let all or a portion of the Premises. City may execute any agreements made under this provision in City's name and shall be entitled to all rents from the use, operation, or occupancy of the Premises. Tenant shall nevertheless pay to City on the dates specified in this Agreement the equivalent of all sums required of Tenant under this Agreement, plus City's expenses in conjunction with re -letting, less the proceeds of any re -letting or atonement. No act by or on behalf of City under this provision shall constitute a Termination of this Agreement unless City gives Tenant specific written notice of Termination. (2) City may terminate this Agreement by giving Tenant written notice of Termination with a specified termination date. In the event City terminates this Agreement, City may recover possession of the Premises (which Tenant shall surrender and vacate upon demand) and remove all Persons and property. City shall be entitled to recover the following as damages; (A) The value of any unpaid Rent or other charges that are unpaid at the time of Termination; (B) The value of the Rent and other charges that would have accrued after Termination less the amount of Rent and charges the City received or could have received through the exercise of reasonable diligence as of the date of the award; (C) Any other amount necessary to reasonably compensate City for the detriment proximately caused by Tenant's failure to perform its obligations under this Agreement; and (D) At City's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time -to -time by applicable California law. City shall be entitled to interest at the rate of ten percent (10%) per annum on all Rent and other charges from the date due or the date they would have accrued. City shall also be entitled to an award of the costs and expenses incurred by City in maintaining or preserving the Premises after default, preparing the Premises for re- letting, or repairing any damage caused by an act or omission of Tenant. (3) Use of Tenant's Personal Property. City may use Tenant's personal property and trade fixtures located on the Premises or any of such property and fixtures without compensation or liability to Tenant for use or damage. In the alternative City may store the property and fixtures at the cost of Tenant. City shall not operate the Credit Union in any manner tending to indicate that the Credit Union is affiliated with, part of or operated in conjunction with Tenant's business. (b) City's Right to Cure Tenant's Default. Upon continuance of any material default beyond applicable notice and cure periods, City may, but is not obligated to, cure the default at Tenant's cost. If City pays any money or performs any act required of, but not paid or performed by, Tenant after notice, the payment and/or the reasonable cost of performance shall be due as additional Rent not later than five (5) calendar days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render City liable for any loss or damage resulting from performance. 16. WASTE OR NUISANCE. Tenant shall not commit or permit the commission of any waste on the Premises. Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of the California Civil Code on the Premises. Tenant shall not use or permit the use of the Premises for any unlawful purpose. 17. NO CONFLICTS OF USE, HAZARDOUS MATERIALS. City represents and warrants that, to the best of City's knowledge, (i) Tenant's use of the Premises does not conflict with applicable Laws, and City knows of no reason why Tenant would be unable to obtain all required permits, licenses and approvals from the appropriate governmental authorities; (ii) the Project is not in violation of any environmental laws, rules or regulations and Tenant's contemplated uses will not cause any such violation; and (iii) the Project is free of any and all Hazardous Materials as of the date of this Agreement. In the event that the presence of any Hazardous Materials not caused by Tenant is detected at the Project at any time during the Term of this Agreement and any Option Term, City shall promptly provide notice to Tenant and all remedial work shall be performed by City at City's expense. Tenant's obligation to open shall be delayed until the remedial work is completed if the remedial work is performed prior to Tenant opening for business. Tenant's obligation to pay Rent shall be abated in direct proportion to the extent Tenant is unable to conduct its business upon the Premises as a result of any remedial work that is performed subsequent to Tenant opening for business. Tenant shall have the right (but not the obligation) to terminate this Agreement, upon thirty (30) calendar days advance written notice to City in the event that Hazardous Materials are detected at the Project and the presence or the remediation materially affects Tenant's ability to conduct its business in the Premises. "Hazardous Materials" shall mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances" under applicable federal, state and local laws, ordinances and regulations. 18. CITY'S DEFAULTSITENANT'S REMEDIES. City shall be in default if it fails to perform, or commence performance if the obligation requires more than ten (10) calendar days to complete, any material obligation within ten (10) calendar days after receipt of written notice by Tenant to City specifying the nature of such default. City shall also be in default if it commences performance within ten (10) calendar days but fails to diligently complete performance. In the event of City's default, Tenant may: (a) Upon five (5) calendar days written notice to City, cure any such default, and City shall reimburse Tenant the amount of all costs and expenses incurred by Tenant in curing the default, together with interest and expenses at the maximum rate then allowed by law; or (b) Terminate this Agreement if City's default materially interferes with Tenant's use of the Premises for its intended purpose and City fails to cure such default within ten (10) calendar days after a second written demand by Tenant in which case Tenant shall have no further or continuing obligations. 19. EVENT OF BANKRUPTCY. (a) If this Agreement is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. or any similar or successor statute ("Bankruptcy Code'), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to City, shall be and remain the exclusive property of City and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting City's property under this Section not paid or delivered to City shall be held in trust for the benefit of City and be promptly paid or delivered to City. (b) Any person or entity to which this Agreement is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Agreement on and after the date of such assignment, including the obligation to operate the business which Tenant is required to operate under this Agreement. 20. NOTICES. Any notice, demand, request, consent, approval or communication that either party desires or is required to give shall be in writing and shall be deemed given three (3) calendar days after deposit into the United States registered mail, postage prepaid, by registered or certified mail, return receipt requested. Unless notice of a different address has been given in accordance with this Section, all notices shall be addressed as follows: If to City, to: CITY OF NEWPORT BEACH Attn: Real Property Administrator 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92658 (949)644-3236 If to Tenant, to: Credit Union of Southern California Attn: Dave Gunderson P.O. Box 200 Whittier, CA 90608-0200 (562)698-8326 21. SURRENDER OF PREMISES. At the Expiration or earlier Termination of this Agreement, Tenant shall surrender to City the possession of the Premises. Tenant shall leave the surrendered Premises, required personal property, equipment and fixtures, in good and broom -clean condition, reasonable wear and tear excepted. All property that Tenant is not required to surrender, but that Tenant does abandon shall, at City's election, become City's property at Expiration or Termination. City shall owe no compensation to Tenant for any personal property, equipment or fixtures left at the Premises by Tenant at the Expiration or Termination of this Agreement. 22. COMPLIANCE WITH ALL LAWS. Tenant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Tenant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the City Manager or his/her designee. 23. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 24. SEVERABILITY. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 25. APPLICABLE LAW. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 26. ENTIRE AGREEMENT; AMENDMENTS. 26.1 The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire agreement of the parties with respect to the subject matter of this Agreement. 26.2 This Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between Tenant and City. 26.3 No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. 26.4 The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Tenant and the City Manager or his/her designee. 26.5 If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 26.6 Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 26.7 Each party has relied on its own inspection of the Premises and examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and covenants in this Agreement. The failure or refusal of either party to inspect the Premises, to read this Agreement or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 27. TIME IS OF THE ESSENCE. Time is of the essence for this Agreement. 28. SUCCESSORS. Subject to the provisions of this Agreement on assignment and subletting, each and all of the covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, and personal representatives of the respective parties. It is expressly understood and agreed that, notwithstanding anything to the contrary in this Agreement, and notwithstanding any applicable Law to the contrary, the obligations of Tenant under this Agreement do not constitute personal obligations of the directors, volunteers, employees, officers or members of Tenant, and City will not seek recourse against the individual directors, volunteers, employees, officers or members of Tenant or any of their personal assets for satisfaction of any liability of Tenant in respect to this Agreement unless authorized by law. 29. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 30. TABLE OF CONTENTS; HEADINGS The table of contents of this Agreement and the captions of the various sections of this Agreement are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 31. GENDER; NUMBER The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the neuter, and each includes corporation, partnership, or other legal entity whenever the context requires. The singular number includes the plural whenever the context so requires. 32. EXHIBITS All exhibits to which reference is made in this Agreement are incorporated by reference. Any reference to "this Agreement" includes matters incorporated by reference. 33. CITY BUSINESS LICENSE Tenant shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 34. COSTS AND ATTORNEYS FEES The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 35. NONDISCRIMINATION Tenant represents that it is an equal opportunity employer and agrees that in the performance under this Agreement, it shall not, discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp aid City Attorney ATTEST: /0 a� f. 1q Date: jC& By: moi, Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: )r 0,-S&- T3t-i Edward Selicn, TENANT: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corporation Date: itI z By:� Dave Gunderson President/CEO Date: i fil s t 2-0 By: 4-'V^ tr^l Peter Put*m Chief Fin n ial Officer Attachments: Exhibit A - Depiction of Premises Exhibit B - Loading Zone, Common Areas, Restrooms Exhibit C - Additional Equipment Exhibit D - Special Use Restrictions Exhibit E - Insurance Requirements Exhibit F - Memorandum of Lease [END OF SIGNATURES] EXHIBIT "A" Depiction of Premises SLI- 410 Vv Jan a ILI a, 4' •1 v�� i Ni s r y� � ✓ � � Y �.` y 0.i x ' � 2, '14 r `e �( �t_t,�u' ♦ w"'4S V 1%� N. x X h 1 F� 4 � � X ! t nl��'�M"Y �}�a•`t rt''� ��t Jai � C �1Y)..✓�� rsr3 �.s�'` ��:IF� �• � 1ta L u ti �� ;� � '- �. 4 r S � i �� iti 10, M A w tib i ... p� r � ��p h '� r✓' s ".f � • •m >, , s�L� s. � r a, �9.,;'z3+�' kt`'4ai�•i+' ey_ �';Y.Aly�v.�,i�( - w .t• �� a,�� if �w,�>x�F .�' .y�,�a . tt +�`. ey i,,y A.�i •' � Yt f�'ii'3et��.+���±1 lnti: ca . u �-• +r� r . �Eq.,^�j. .2.'b2��''� ���♦'!!�aG+' '°� iJ' t. Y K -'i R � \4 i'F'6 r � / • � :t �_ � �„q�` ��� � �� r � � � f �� '�i A\,u � � ♦ J 'ifs f (��, �".;..lir ' ` '�_ � fir' � � i �' I *i / � • v� ,tom (j� rR A a 1 1, r ' • � Y , � I s � �. _ _ � � i .., y y _. � , `e�� 1 �� :uS �i: r � \ � t �il " � ii � � u� t� 1 b �_ a 1` � � � >� a � ' .. > ra. ..� ti. r s' < o 'ti` °�. � � it �3� f� Rya. ....\ z� .. .. ,.�-�' ..3� / it i �.{,, • of s, ...>. Central Libra Newport Beach GIS 0* Exhibit A-3 0 100 200 Feet ibrary Expansion �— �A �� pt?�J', Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging Hww.eagleaerial.00m o , EMS I I .. I r i I I - - _lam"="1----- -- ---------------- ------ - -------- - 1 - - - - J EXHIBIT "B" Loading Zone, Common Areas, Restrooms - g x _a � vS 1 a. vl . Ufi 3 d'ax^ C 3cn 0 i O I aj w ~ Exhibit "C" Tenant Equipment List Equipment Quantity Cost Network Router 1 $4,300.00 Network Switch 1 $7,500.00 Network Accelerator 1 $5,000.00 Teller Workstation PCs 3 $1,500.00 Desk Phones 3 $750.00 Receipt Printers 3 $1,200.00 Check Endorsers 3 $1,000.00 Printer Servers 3 $900.00 Laser Printers 2 $1,500.00 Signature Pads 3 $1,500.00 Monitors 4 $700.00 Manager Workstation PC 1 $1,000.00 Network Cabling N/A $6,000.00 ATM 1 $65,000.00 Cash Recyclers 2 $90,000.00 Video System 1 $8,205.00 Alarm System 1 $6,944.00 Exhibit "D" See attached special use restrictions document. Hhan 92-304T57 :01 5 - Recorded 1421 To: Ppm{ 15- DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE FNSTAAER7111FCQ THE IRYILIR COMPANY 4s 550 Newport Center Drive ago MAY 81M qMr Newport Esach, CA 92660 AIL Ot6 MQe= ^ Dwo c4u*. cwwft D.T.T.i44 U Q� R .��� PCOR f Attention: Lee Milligan -�".^Z WAF 5 ADE -6 f_! Space above thio line for Recorder's we 1 DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE e TAM OF CONTENTS DECLARATION OF SPECIAL LAND USE RPSTTIIGTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AFD OPTION TO REPURCHASE ARTICLE 1. GENERAL PROVISIONS. . . . . . . . . . 1 1.1 Grantee's Representations and Warranties. . . . . 1 1.2 Statement of Declarant's General Purposes. . . . . 2 1.3 Definitions. . . . . . . . . . . . 2 (e) 'Benefitted Property" . . . . . . . . . . . . . 2 (b) •Center' . . . . . . . . . . . . . . . 2 (c) ^Declarant• . . . . . . . . . . . . . . . . 2 (d) 'Effective Date• . . . . . . . . . . . . . . . . 2 (e) 'Final Nap• . . . . . . . . . . . . . . . . 2 (f) 'Grantee• . . . . . . . . . . . . . 2 (g) The 'Gross Floor Area• . . . . . . . . . . . . . . 3 ARTICLE 2. SPECIFIC RESTRICTIONS . . . . . . . . . . . . . . . . . . . . 3 2.1 Specific Facilities. . . . . . . . . . . . . . . . . 3 (a) Improvement and Continued Use. . . . . . . . . . . 3 (b) Construction. . . . . . . . . . . . 3 (c) Commencement and Completion. . . . . . . . . . . . 3 (d) Grading. . . . . . . . . . . . 4 (e) Utilities, Streets and Public Improvements. 4 (f) Landscaping. . . . . . . . . . . . . . 4 (g) Alterations and Additions . . . . . . . . . . . . . 4 2.2 Declarant's Approvals. . . . . . . . . . . . . . . . 4 (a) Approvals Required. . . . . . . . . . . . . . . . 4 (b) Time for Approvals. . . . . . . . . . . . . . . 4 (c) As Built Plans . . . . . . . . . . . . . . . . . . 5 2.3 Grantee's Cost. .. . . . . . . . . . . . . . 5 2.4 Fulfillment of Nap Conditions . . . . . . . . . . . . . . 5 2.5 Compliance With Lay. . . . . . . . . . . . . . . . . 5 (a) Grantee to Comply. . . . . . . . . . . . . . 5 (b) Approvals of Applications. . . . . . . . . . . 5 2.6 Bonds . . . . . . . . . . . . . . . . . . . . . 6 2.7 Transfers. . . . . . . . . . . . . . . 6 (a) Transfers Prohibited . . . . . . . . . . . . . . . 6 (b) Permitted Transfers. . . 6 2.8 Subordination or Consent to Transfer for Public Financing. . . . . . . . . . . . . . . . . . . 6 (a) Copy of Loan Documents . . . . . . . . . . . . . . 7 (b) Title Report. . . . . . . . . . . . . 7 (c) Disbursement Ioatxv tions. . . . . . . . . . 7 (d) Request for Notice of Default. 7 2.9 Costs of Regional Development. . . 7 2.10 MacArthur Boulevard Dedlcation and Maintenance. 7 ARTICLE 3. GENERAL RESTRICTIONS. . . . . . . . . . . . . . . . . . 8 3.1 Unapproved Development or Use . . . . . . . . . . . . . . 8 3.2 General maintenance. . . . . . . . . . . . . . . . . . . 8 3.3 Resteration. . . . . . . . . . . . . . . . . . . . . . . 8 3.4 Drainage. . . . . . . . . . . . . . . . . . . . . . . 8 3.5 Signs. . . . . . . . . . . . . . . 8 3.6 Prohibited Operations and Uses . . . . . . . . . . . . . 8 3.7 No Subdivision . . . . . . . . . . . . . . . . . . . . 9 3.8 Zoning . . . . . . . . . . . . . . . . . . . . . . . . 9 3.9 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE 4. DECLARANT'S RICHT OF FIRST REFUSAL . . . . . . . . . . . . . . 10 ARTICLE 5. REMEDIES. . . . . . . . . . . . . . . 11 5.1 Default and General Remedies . . . . . . . . . . . . . 11 (a) Damages . . . . . . . . . . . . . . . . . . . . . . 11 (b) Equity . . . . . . . . . . . . . . . . . . . . . . 11 5.2 Inspection. . . . . . . . . . . . . 11 5.3 Option to Repurchase the Land. . . . . . . . . . . . . . 11 (a) Grant of Option. . . . . . . . . . . . 11 (b) Exercise of Repurchase Option. . . . . . . . . . . 12 (c) Expiration and Quitclaim . . . . . . . . . . . . . 12 11 12 13 13 13 14 14 Is LS 15 15 15 16 16 16 16 16 16 16 16 16 17 17 17 17 17 17 17 10 (d) Repurchase Fri. . . . . . . . . . . . . . . . . . (e) Repurchase Escrow Tens . . . . . . . . . . . . . . (f) Irrevocability. . . . . . . . . (g) Warrantlss, Plans and Specifications. . . . . . . 5.4 Arbitration Procedure . . . . . . . . . . . . . . . . . . 5.5 Waiver. . . . . . . . . . . . . . . . . . . . . . . 5.6 Coats of Enforeaaeat. . . . . . . . . . . . . . . . . . 5.7 Rights of Lenders . . . . . . . . . . . . . . . . . . . . 5.8 Advances . . . . . . . . . . . . . . . . . . . . . . . . ARTICLE 6. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . 6.1 Unavoidable Delay. . . . . . . . . . . 6.2 Continuous Operations. . . . . . . . . . . . 6.3 Govenants to Run With the Land; Tem. . . . . . . . _ _ (a) Covenants to Run With the land. . . . . . _ . . . (b) Is=. . . . . . . . . . . . . . . . . 6.4 Assignaeut by Declarant . . . . . . . . . . . . . . . . 6.5 Amendeents. . . . . . . . . . . . . . . . . . . . . . . 6.6 Release. . . . . . . . . . . . . . . . . . . . . . (a) Release by Declarant . . . . . . . . . . . . . (b) Not Applicable to Declarant. . . . . . . . . . . 6.7 Notice. . . . . . . . . . . . . . . . . . . . . . . 6.8 Governing Lav . . . . . . . . . . . . . . . . . . . . . . 6.9 Severability. . . . . . . . . . . . . . . . . . . . 6.10 Captious . . . . . . . . . . . . . . . . . . . . . . . . 6,11 Entire Agreemnt. . . . . . . . . . . . . . . . . . . . 6.12 Gender and Nvaber. . . . . . . . . . . . . . . . . . . 6.13 Tine of the Essence . . . . . . . . . . . . . . . . . . . 11 12 13 13 13 14 14 Is LS 15 15 15 16 16 16 16 16 16 16 16 16 17 17 17 17 17 17 17 10 -- 1 TULZ OF SEHIBM 2.�. Property Duexiptim.................... 1 Specific Facilities..................... 2 Subordi�,tlan Ayreesent................. 3 I: d iii DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE THIS DECLARATION ("Dscleratlon") is made as of March 11, 1992, by and between THE IRVINE COMPANY, a Michigan corporation (•Declarant•), and the CITY OF NEWPORT BEACH, a California municipal corporation (`Grantee-), with reference to the following facts: A_ Grantee and Declarant bave entered into an Exchange Agreement and Escrow Instructions (the "Exchange Agreement') by which Grantee is acquiring from Declarant the following described real property (as -Exchange Land-) situated in the City of Newport Beach, County of Orange, State of California: The southwesterly one-half of Parcel 2 as shown on Parcel Nap No, 90-361, recorded in Book 270 , pages 15 to 18 , inclusive, of Parcel Naps, Records of said County. B. Grantee and Declarant have also entered into a Transfer Agreement and Escrow Instructions by which Grantee is acquiring from Declarant real property adjacent to and contiguous with the Exchange Land which real property is situated in the City of Newport Beach, County of Orange. State of California ("Transfer Land') and is described as follows: The northeasterly one-half of Parcel 2 as shown on Parcel Map No. 90-361, recorded in Book 270, Pages 15 to 18 , inclusive, of Parcel Naps, Records of said County. C. In connection with such acquisition, Grantee has represented to Declarant that it has acquired the Exchange Land and the Transfer land as a single parcel described as all of Parcel 2 as shown on side Parcel Nap No. 90-361 j (the "Land") to Improve and use the Land in accordance with the covenants, conditions, rights, restrictions and limitations as particularly set forth herein (collectively referred to as the "Restrictions'), and Declarant is granting the Land to Grantee on the basis of Grantee's continuing compliance with such Restrictions. NOW, THEREFORE, in consideration of the foregoing (including the conveyance of the Land by Declarant to Grantee), and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: i ARTICLE 1, GENERAL PROVISIONS, 1.1 Grantee's Representations and Warranties. GRANTEE REPRESENTS AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SANE IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND FOR THE PARTICULAR USES AND PURPOSES AUTHORIZED HEREBY. GRANTEE AC?UIOWLEDCES, AMONG OTHER THINGS, THAT: (a) GRANTEE IS EXPERIENCED AND KNOWLEDGEABLE IN THE CONSTRUCTION AND OPERATION OF PUBLIC FACILITIES, AND DECLARANT AND GRANTEE DESIRE TO PROVIDE A PUBLIC LIBRARY TO SERVE NEWPORT BEACH; (b) DECLARANT HAS CONVEYED AND GRANTEE HAS ACCEPTED FEE TITLE TO THE LVID FOR USE UY GRANTEE IN ACCORDANCE WITH THE PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DECIAItANT AND GRANTEE DO NOT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PERMITTED HEREIN; (d) THE LIKELIHOOD THAT ANY BREACH WILL OCCUR AND THAT DECLARANT WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY REMOTE (e) 4ITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOSES AND EXPECTATIONS OF DECLARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE DEFEATED; (f) BUT FUR CONVEYANCE OF THE LAND, GRANTEE WOULD BE REQUIRED TO PAY SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE ESTABLISHED THE FAIR MARKET VALUE OF THE WTD FOR PURPOSES OF THE OPTION TO REPURCHASE BASED UPON PRESENT ESTIMATES AND HAVE APPLIED ADJUSTMENT FACTORS TO TAKE INTO ACCOUNT SUBSEQUENT CHANCES IN VALUES; (h) DECIARANT AND GRANTEE ACKNOWLEDGE TAT MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR LESSER TNAN THE VALUE ESTABLISHED FOR PURPOSES OF THE OPTION TO REPURCHASE AND HEREBY ASSUHE THAT RISK, J n U I ' BOT FOR SUCH REPHFSENTATIONS BY GRAMM, AND CRAM' S DRIQOR SEILLS, BAPERrISE AND SUITABILITY IN COHSrRUCTIOB An OPERATION OF THE SPECIFIC FACILITIES DESCRIBED BRIM, DECLARANT WOULD, NOT HAVE CONVEYED THE IAND TO "ARM. BUT WIND HAVE RETAINED THE BENEFITS OF UMERSHIP, INCLUDING PUrURE APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES. DECLARANT HAS CONVEYED THE LAND TO GRANTEE. 1.2 Statement of Deelartnt's General Purposes. Deelarsat is the ower of a large and unique landholding, part of which has leen developed as a master planned business, recreational, hotel, residential and retail Canter, described below, in the City of Newport Beach (the "City-). Among the distinguishing characteristics of this masterplanned Center are the clear delineation of nee areas throughout the Center, together with the atrict exercise of architectural and occupancy controls over individual construction projects, Be as to ensure the harmonious growth end development of the Center and the maximization of the value of Declarant's developed and undeveloped landholdings as well an the Iand itself. In addition to those general concerns, it is vitally important to Declarant that the intensity of development shall be limited on those parcels of property (including the Land) that Declarant from time to time elects to convey to third parties. Should the development limitations imposed by Declarant be exceeded, the roadways and the infrastructure improvements servicing the Center and its eriirons could be overutiLized, resulting in undesirable traffic congestion and imbalances within the Center. Such conditions could in turn adversely affect the ability of Declarant to develop, own, operate, lease or sell I" landownings, including without limitation the *Benefitted Property" as defined below. It is to promote these purposes that this Declaration is made, and it is the intention of the parties that it will be in furtherance of said purposes that the Restrictions, and all other declarations supplemental hereto, will be understood and construed. 1.3 Definitions. As used herein, the following terms sball have the meanings given to them below: (a) "Benefitted Property' shall mean the real property to which the benefit of the provisions of this Declaration Inures, and as of the execution of this Declaration shall man the real property described an MID :r -� 1 attached hereto. Declarant shall have the right by a duly recorded amendment hereto executed solely by Declarant to substitute for or add to the Benefitted Property any real property owed by Declarant in the County of Orange, California. The Benefitted Property shall be the dominant tenement and the land shall be the servient tenement for purposes of this Declaration - (b) "Center" shall mean the office, hotel, recreational, retail and residential and other use area commonly know as Newport Center (including the shopping center known as Fashion Island) and generally lying within the area enclosed by Pacific Coast Highway, MacArthur Boulevard, San Joaquin Hills Read and Jamboree Road. (c) "Oeclarant' shall mean The Irvine Company as Identified above and its successors, assigns or designees who shall sssuae the obligation and to whom The Irvine Company shall apocifically assign in writing the right to enforce these Ree:rictious, subject to the provisions of the Section entitled "Assignment by Declarant." (d) "Effective Date* of this Declaration shall be the date this Declaration is recorded in the Official Records of Orange County, Salifornis. (e) "Final Map' shall mean the final amp covering the Land described so Parcel Map No. 90-361 as show on a map recorded in Book 170 , Pages 15 to Ig , inclusive, of Parcel Napa, Records of Orange County, Callfornia. (f) "Grantee" shall swan the Crantea identified above and each and every sucaeseor, assignee, ower, leasee, licensee or other occupant of the land, the Specific Facilities, as defined below, or any portion thereof or Interest therein, and each of them, during their ownership or occupancy thereof. However, such tars shall not include any person having an interest in all or any portion of the Land or Specific Facilities merely as security for the performance of an obligation. Without limiting the generality of the foregoing, if Grantee leases all or any of its interest in the land or the Specific Facilities, both the lessor and leasee under such lease shall be responsible ms principals (and not sureties) for compliance with all the terms and provisions of this Declaration. (g) The 'Gross Floor Area- shall Baan the aggregate number of square feet of floor space on all floor levels of any building, including mezzanines, measured from the interior face of all exterior valla. We deductions or exclusions shall be made by reason of columns, stairs, elevators, escalators, or other interior construction or equipment. ARTICIE 2. SPECIFIC RESTRICTIONS. 2.1 Specific Facilities. (a) Improvement and Continued Use. Grantee represents and agrees that Grantee shall cause the land to be improved only with the specific facilities described on EXHIBIT 2 attached bereto (the 'Specific Facilities-) and the other improvements described on EXHIBIT 2 attached hereto (the 'Other Improvements') and in full accordance with all of the terms of this Declaration, and that Grantee shall cause the Iand, the Specific Facilities and the Other Improvements to be used r.olely for a public library with related parking and no other use, notwithstanding that other uses may be permitted under applicable zoning ordinances, and in full accordance with all of the terms of this Declaration. Use as a public library may include all uses and activities coomanly associated with public libraries now and in the future including any form of information storage and retrieval such as video tapes, books, optical and magnetic disks or other technologies for information storage and retrieval. Grantee may charge fees, rentals and late charges for loan or use of Luforaation media provided that fees, rentals and charges do not exceed the cost of operation of the public library facility. No portion o£ the land, or any improvements thereon, or any portion thereof, shall be used for retail, commercial, quasi - retail or quasi -commercial facilities that materially compete with the retail and commercial facilities In the Center or otherwise inproved, developed, used, operated or maintained with any facilities or for any purpose whatsoever except as set forth above unless expressly approved by Declarant, which approval may be granted or withheld by Declarant in its sole discretion. (b) Construction. Grantee shall improve the land with the construction and installation of the Specific Facilities and the Other Improvements pursuant to the plans and specifications approved by Declarant pursuant to the Exchange Agreement and the Transfer Agreement. If Grantee desires to make any substantial alterations, modifications, additions or changes to the exterior elements of arty plans and specifications previously approved by Declarant, then Grantee shall submit three copies of any Change Order to Declarant for its approval prior to obtaining approval of such Change Order by the governmental entity having Jurisdiction and prior to incorporating such Change Order in the work. Declarant shall approve or disapprove such Change Order in accordance with the standards and procedures set forth in Section 2.2. Construction and installation shall be cosnenced and completed within the time periods set forth in the Section below entitled 'Commencement and Completion.' (c) Commencement and Completion. Subject to extensions of time for unavoidable delays as provided under the provision entitled 'Unavoidable Delay,' (i) within the time period specified on EXHIBIT 2 as the "CoomencemenD�.}_ Date,' measured from and after the Effective Date cf cbis Declaration, Grantee 1 shall have commenced construction of the Specific Facilities on the Land, and (ii) within the time specified on EXHIBIT 2 as the 'Completion Date,' measured from and after the Effective Date of this Declaration, Grantee shall have completed construction of the Specific Fncilities on the Land in a "mar consistent with plans and specifications approved in writing by Declarant pursuant to the Agreement. As used herein, the tete 'commenced construction• shall mean the completion of substantial grading of the Land and the pouring of all or a substantial portion of all of the footing. and foundations for the entire Specific Facilities (which need not necessarily include the ground floor slabs). Grantee shall be deemed to have 'completed construct Lan' of the Specific Facilities only at such time as Grantee shall have obtained from the appropriate governmental entity or agency a valid Cartificats of Use and Occupancy for the Specific Facilities, Grancea shall e^—o--s and complete construction of the Other Improvements prior to or contemporaneously with such Specific Facilities. (d) Gradiry. Prior to the coaencernt of any grading or ` afailar work on the Land, Grantee shall submit to Declarant for Its approval two i meta of plans and specifications for grading, terracing and filling of the Land and for construction of other similar improvements in, on or about the Land. (e) Utilities. Streets and Public Improvements. '! (i) Grantee shall cause all necessary facilities for / water, drainage, savage, telephone, electricity, cable talevinion, and other utility service for the Land to be constructed and installed thereon and thereto in the manner and within the time required by the Exchange Agreement. (11) In addition to any such facilities constituting a part of the Specific Facilities or the Other Improvements, Grantee shall construct and install or pay for construction and installation of all streets, mer street lights, drivevaye, curb cuts, entry ways, sidewalks end the like, perimeter valla and fences, irrigation and drainage systems, landscaping, -- monument, directional or other signs and all like improvements on the Iwnd or between the Land and adjoining sidevalks or the curbs of adjoining streets. As required by the Exchange Agreement. (f) landscaping. In addition to the landscaping constituting a part of the Other Improvements, if Any. Grantee shall landscape the Land As necessary to create a first class attractive condition, and in a manner consistent with the existing landscaping in the Center. Grantee shall submit to I� Declarant for its approval two sets of plans and specifications for the landscaping on the Land. (g) Alterations and Additions. Grantee shall net make any substantial additions, alterations or other modifications ('alterations') of or to the exterior of the Specific Facilities or any additions, alterations or other modifications to the visible portions of the Other Improvements or other improvements from time to time located on the land, without the prior written approval of Declarant. Declarant shall approve or disapprove of such alterations in accordance with the standards and procedures set forth in Section 2.2. All such alterations shall be subject to the provisions of Article 2 hereof. If Grantee desires to add additional structures to the Land other than those specified in EXHIBIT 2, then Declarant may impose additional restrictions, covenants and obligations As a condition to its approval. As used in this Section, tine 'exterior" of the Specific Facilities shall mean all roofs, outside valla And facades, structural foundation., entrance doors, windows, outside valkvays, ramps and other accessways, And parking facilities. 2-2 Declarant's ADvrovals (a) Approvals Required. Except with respect to plans and specifications approved prior to the rerordation of this Declaration, no construction, installation or alteration of the Specific Facilities, the other Improvements, or any other landscaping, grading or other improvements in, about or on the land shall be commenced unless the concept, plana and specifications for the exterior elements of such impnveuencs have first received the written approval of Declarant exercising Ica so Ls and absolute discretion. The Improvements constructed shall comply with the plane and specifications approved by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that the Specific Facilities, the Other rmproveaenes and all other landscaping and improvements on the Land shall be designed, constructed and installed to provide for a library with complementary landscaping and surrounding improvements which, in the sole discretion of Declarant, are in harmony with the plan and design of the Center. (b) It" for Approvals. Declarant shall approve or disepprove any plans and specifications delivered to Declarant pursuant to this Article as soon as possible but no longer than thirty (30) working days after receipt of two copies therecf accompanied by such drawings, site plana, elevations, artists' conceptions, samples of materials, models, mock-ups, and color samples as from time to rime required by Declarant to review such plana and specifications. If approved by Declarant, Much approval shall be sMorssd on Much plans and specifications and one Met of such docurnts bearing Deelarant's approval shall be returned to Grantee within much thirty (30) working day period. If DaclAraat does not approve such, plans and specifications, Declarant shall notify Grantee of its reasons for net approving such plana and specifications and Grantee shall, within forty five (45) working days after receiving notice of Declarent'a disapproval, submit new plans and specifications for Declarant's approval. .411ure of Declarant to approve or disapprove any plane and specifications within said thirty (30) working day period and Declarant'+ continued failure to approve or disapprove for five (5) working drys after Grantee's written notice to Declarant that Declarant has failed to approve or disapprove as required herein shall be deemed approval thereof. The approval by Declarant of any plana and specifications pursuant to this Section shall only represent Daclaranta' satisfaction with the plans and apecifitations as to their general aesthetic elements. Such approval shall not be deemed to constitute any representation or warranty by Declarant as to the adequacy or sufficiency of such plans and specifications for ardalteetzuzal ur engineexlog design or the feasibility or integrity of any grading, landscaping, improvement or construction contemplated thereby for any, use or purpose. by approving such plans and specifications, Declarant assumes no liability or responsibility therefor or for my defect in any grading, landscaping, improvements or construction made pursuant thereto. (c) As guilt PIans. Upon completion of the grading, landscaping and construction of improvements, Grantee shall submit to Declarant two -as built' sepias and a Certificate of Compliance executed by Grantee's state licensed consultant (engineer, architect and/or landscape architect). The Certificate of Compliance shall warrant that the completed grading, landscaping and construction conforms to the plans and specifications therefor approved by Declarant. 2.3 Grantee's Cos c. The Specific Facilities, the Other Improvements, and all other landscaping, grading and other improvements made or constructed in, about or on the land as contemplated herein shall be constructed, installed and completed at the sole cost and expense of Grantee and without any cost, liability or expense to Declarant. 2.4 Fulfillment of Nap Conditions. Certain map conditions dated November 21, 1991 (copies of which have been provided to Grantee) have been imposed in connection with the approval and recordation of the Final Nap. Except as otherwise agreed in writing by Declarant and Grantee, Grantee shall comply with and/or fulfill all of those duties and obligations imposed by such map conditions on the "Applicant' and/or -Subdivider' attributable to Grantee's use or development of the Land, all at Grantee's sole coat and expense. 2.5 Compliance With Law. (a) Grantee to Comply. The Specific Facilities, the Other Improvements and all other landscaping, grading and other improvements made or constructed in, about or on the Land, and the use thereof, shall comply at all tines with all public laws, ordinances and regulations applicable thereto. Without limiting the generality of the foregoing, Grantee shall obtain, at its sole expense, all of its internal and external governmental approvals and permits and approvals of other governmental authori_ies with jurisdiction which may from time to time be required with respect to the performance contemplated under this Declaration, including, as applicable end vithout limitation, appropriate toning, building permits, permits from the Califorria Coastal Commission, operating and business licenses and permits and the like. In obtaining such approvals and permits, Grantee shall prepare, at its sole expense, as necessary and without limitation, all environmental impact reports, engtacering studies and the like as necessary. (b) Approvalg of Applications. All requests or applications, together with all supporting documentation, far governmental approvals or permits which require discretionary action by discretionary bodies of Grantee or on the part of another governmental agency, shall be submitted to and coordinated and approved by Declarant prior to placing such approval on the agenda of Grantee's discretionary body or filing with any other governmental agency. Declarant shall have a period of forty five (45) days after receipt to disapprove any requests or applications so submitted by Grantee, and in the event of disapproval shall specify the reasons therefor. Failure to disapprove within such forty five (45) ` day period and Declarant's continued failure to approve or disapprove for fifteen (15) days after Grantee's written notice that Declarant has failed to approve or disapprove u required hereunder shall be deemed approval thereof. Grantee shall cause copies of all written communications betwaen Grantee and other governmental agencies processing such requests or applications to be delivered to Declarant within five (5) business days after much commmmication has been delivered to the addressee. 2-6 Bonds. Before the commencement of any of the work required under thin Article 2, Grantee shall furnish to Declarant true copies of any and all labor and material bonds and faithful performance bonds, if Any, required of Grantee by any governmental agency concerning such work. 2.7 Transfer.. (a) Transfers Prohibited. For a period of not Iasi than i twenty-five (25) years after the Effective Date, Creates shall not Bell, lease. convey, exchange, encumber or otherwise transfer the land or any portion thereof or facilities thereon, whether by agreement for sale or in any other manner (herein collectively referred to as a 'transfer') without first giving Declarant at least sixty (60) days' prior written notice of all terms and conditions of such proposed transfer and the right to either (i) acting reasonably, approve or disapprove such transfer, (ii) exercise its option to repurchase set forth in Section 5.3 below, or (iii) exercise its right of first refusal sec forth in Article 4 below. Declarant in urs sole discretion may within such sixty (60) day period exercise any such right. Declarant's failure to so act within such sixty (60) day period shall be deemed to constitute approval of the transfer on the terms and conditions proposed by Grantee. Any tine after the twenty fifth (25th) anniversary of the Effective Date, Grantee may transfer the Land without Declarant's approval under this Section and without regard to Declarant's option to repurchase set forth in Section 5-3 below or Declarant's right of first refusal set forth in Article 4 below, Grantee hereby acknowledges that it would be reasonable and appropriate for Declarant to disapprove a transfer and exercise its option to repurchase and/or right of first refusal if the proposed transferee is not adequately experienced, knowledgeable and financially capable to own and operate a public library. (b) permitted Transfers. Notwithstanding the foregoing, (1) Grantee may transfer the Land to any other governmental or quasi -governmental entity or agency which has as its primary purpose maintenance and operation of public libraries provided such entity shall be subject to all of the provisions of this Declaration or (LI) provided Grantee complies with the provisions of Section 2.8 below, Declarant shall consent to a transfer or encumbrance on the Land made in connection with an interim or permanent loan or loans or other form o£ private or public financing (including without limitation bands, lease revenue obligations or certificates of participation) ("public obligations") made in good faitb and for value by an institutional lender or by a public obligation, the proceeds of which are used only for the costs and expenses of such public obligations and construction of the Specific Facilities and Other Improvements or refinancing of a construction financing in an amount not to exceed the amount outstanding under the construction financing (collectively, "permitted Transfers'). :aav 2.8 Subordination or Com,;ent to Transfer for Public Financin¢. Subject to the following p-ovislons and the provisions of Section 5,7 hereof, Declarant will either consent to a transfer described in Section 2.7(b) above, without exercise of Declarants right of first refusal contained In Article 4 and the option to repurchase contained in Section 5.3 (collectively, the "Enforcement Rights") or Declarant will subordinate its Enforcement Rights to any encumbrance referred to in Section 2.7(b) immediately above, (which Section 2,7(b) shall continue in effect even after Section 2.7 no longer has any application to Chia Declaration, for purposes only of describing the transfers and encumbrancea to which Declarant will continue to consent or subordinate pursuant to this Declaration) provided that the principal Amount of Such A loan or public obligation does not, in combination with other loans and/or public obligations secured by or affecting the Land and/or the improvements constructed thereon do not exceed at any time ninety percent (901) of the fair market value of the Land and any improvements thereon, valued taking into account the restrictions contained in this Declaration, and such loans and/or public obligations are At commercially reasonable interest rates and otherwise contain (d) Request for Notice of Default. Unless public obligations are issued which do not involve a standard mortgage lien to secure performance of a note, a copy of a Request for Notice of Default pursuant to Section 29426 of the California Civil Code prepared for execution end acknowledgment by Declarant which, when recorded at Grantee's expense, will entitle Declarant to the notices prescribed by said Section 2942b. If public obligations are issued, then the documentation for such financing shall require delivery of a notice of any default to Declarant prior to exercise of any remedies available upon such default. 2.9 Costs of Regional Development. Grantee understands that development of the Specific Facilities on the Land will be accomplished in conjunction with development of other real property in the center by Declarant other private parties. Grantee hereby agrees to pay its share of infrastructure improvements made on, adjacent and off the situs of the Land. The infrastructure improvements shall include the Improvements required to complete the item set forth in EXHIBIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedlc ti9n and Maintenance. Declarant and City agree that a land area along MacArthur Boulevard shall be designated on the —' Final Hap to be used exclusively for future expansion of MacArthur Boulevard. Prior to construction of road and other improvements for such expansion. Grantee shall not use the area designated for any purpose other than installation and maintenance of landscaping. Grantee agrees to install landscaping within such area prior to completion of construction of the Specific Facilities pursuant to plans and spoclEleatlone approved by Deelsrant In accordance with the standards and procedures act forth in Section 2.2 and to maintain such area in a first Class condition, order and repair at all times prior to commencement of construction for expansion of MacArthur Boulevard. • commercially reasonable Corms and conditions. Grantee will provide Declarsac I with appraisal information from a reputable M.A.I. appraiser, from the Office of the Assessor of Orange County or from An institutional lender reasonably satisfactory to Declarant to verify that the tote). loan -to -value rate does not exceed nicety percent (90%). No foreclosure, trustee'■ sale or dead in lieu of foreclosure with respect to any such permitted encumbrance or exercise of any f1 remedy to enforce a public obligation shall be deemed An 'assignment' for I 1 ,urposes of Section 2.7, above. Within ten (10) working days after receipt of ,J the following items, provided the foregoing requirements have been satisfied and provided there is no default undar any provision of this Declaration or under any other obligation between Declarant and Grantee relating to the land, Declarant shall execute, acknowledge and deliver to Grantee a subordination instrument ZA substantially the form attached hereto as EXHIBIT 3 or a consent to transfer__.{- — pursuant to issuance of a public obligation: V (a) Copy of loan Documents. A true and complete copy of all instruments executed by Grantee evidencing or securing the issuance of a public obligation or loan; any lease, mortgage, deed of trust or other interest or right r created to enforce payment of any public obligation which effects the land must =` not secure or relate to any obligation or indebtedness not related to improvement of the Land, and neither the note, the mortgage, deed of trust, lease nor any other document or instrument pertaining to a loan or public obligation pertaining to the Land shall contain any provision making it a default thereunder if the obligor or any other party defaults in any obligation not related to the ' acquisition or improvement of the Land; ._ . (b) Title Report. A preliminary title report dated not earlier than fifteen (13) days prior to submittal shoving no title exceptions other than those in existence at the time Declarant transferred the Lend to III (— Grantee, other utility easements reasonably necessary to serve the Iand, and I other matters approved by Declarant; I (c) Disbursement Instructions. A copy of the executed financing instruments, loan agreement or other agreement pertaining to the disbursement of funds, which must provide in a manner satisfactory to Declarant that the funds disbursed thereunder will be used only to purchase or improve and benefit the Land, or to refinance original financing made for such purpose (in an amount not to exceed the amount outstanding under the acquisition/construction loan refinanced); and (d) Request for Notice of Default. Unless public obligations are issued which do not involve a standard mortgage lien to secure performance of a note, a copy of a Request for Notice of Default pursuant to Section 29426 of the California Civil Code prepared for execution end acknowledgment by Declarant which, when recorded at Grantee's expense, will entitle Declarant to the notices prescribed by said Section 2942b. If public obligations are issued, then the documentation for such financing shall require delivery of a notice of any default to Declarant prior to exercise of any remedies available upon such default. 2.9 Costs of Regional Development. Grantee understands that development of the Specific Facilities on the Land will be accomplished in conjunction with development of other real property in the center by Declarant other private parties. Grantee hereby agrees to pay its share of infrastructure improvements made on, adjacent and off the situs of the Land. The infrastructure improvements shall include the Improvements required to complete the item set forth in EXHIBIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedlc ti9n and Maintenance. Declarant and City agree that a land area along MacArthur Boulevard shall be designated on the —' Final Hap to be used exclusively for future expansion of MacArthur Boulevard. Prior to construction of road and other improvements for such expansion. Grantee shall not use the area designated for any purpose other than installation and maintenance of landscaping. Grantee agrees to install landscaping within such area prior to completion of construction of the Specific Facilities pursuant to plans and spoclEleatlone approved by Deelsrant In accordance with the standards and procedures act forth in Section 2.2 and to maintain such area in a first Class condition, order and repair at all times prior to commencement of construction for expansion of MacArthur Boulevard. ?Jan, t'.]t: 3.1 Unavoroved Devalcmant or Use. Unless expressly approved by Declarant, which approval may be withheld by Declarant in Its sole discretim, Grantee shall not permit the construction, maintenance, operation or we of any structure or improvements an the LAM not in full compliance with all requirements of the lav, this Declaration and any other covenants, conditions and restrictions from time to time covering the Lod. 3.2 General Maintenance. Prior to the completion of the Specific Facilities, Grantee shall maintain the Land in a clean, sanitary, orderly end attractive condition, free of weeds, debris and pasta. Upon completion of the Specific Facilities as contemplated herein, Grantee shall at all times maintain the Specific Facilities, the Other Improvements and all other imprevamanta from time to tine located on the Land, including without limitation the landscaped are", in first-class condition, order and repair. Grantee shall remove any graffiti on the Improvements, Other Improvements and all other Improvements on the Iand within three (3) business days after delivery of notice by Declarant. 3.3 Restoraticn. If any building or improvement on the Land, or any part thereof, or any landscaping installed upon the Lnd, shall be damaged or destroyed by fire or other casualty, Grantee shall at its cost and expense either (d) repair or restore the ems according to the original plane thereof or to such modified plans as shall be previously approved in writing by Declarant as provided above, or (11) duoolish such damaged or destroyed improvements and leave the Land (or applicable portion thereof) in a clean and safe condition. Such repair, restoration or demolition shall be commenced within one hundred twenty (120) days after the damage or loss occurs and shall be completed with due diligence but not longer than one (1) year after such work is commenced. The time periods specified in this subparagraph entitled -Restoration' shall be extended as provided in the Section of this Declaration entitled -Unavoidable Delay." 3.4 Drainaee. Grantee sball not drain or discharge uater from the Land (including but not limited to rain water and water from landscape sprinkler systems located on the Land) on to adjacent land except as follows: Grantee shall at all times cause the land to be graded and drained so as to Cause the discharge of all water from the Land onto the public street adjoining the Land or into an established drainage facility, if any, on or adjacent to the Lnd which bas been designed to accomodate the water at the rate discharged. 3.5 Steps. Grantee shall not place or use any signs, banners, balloons, displays of other advertising media in, on, about or above the Land or on or in any improvements constructed or placed thereon unless it has first obtained the prior written consent of Declarant as to the number, size, location, height, illumination, color and design of such signs or other media. Declarant shall not unreasonably withhold such approval so long as such sign. or other media (a) comply with (1) Declarant's sign program for the Land, the property surrounding the land and the Benefitted property, if any, end (11) the statutes, ordinances or regulations of any governmental entity or agency having jurisdiction thereover including Grantee itself and (b) are in harmony and conformity with the existing or proposed improvements on or In the vicinity of j the Land and with Declarant's general aesthetic and architectural plans and criteria for the Land, the Center and the general area in which the Land is located. Except as provided in this Section, no sign, banner, balloon, display or other advertising media which is visible from adjacent land or any public or private street shall be maintained in, on about or above the Land or on or in any improvements constructed or placed thereon. 3.6 Prehlbited Operations andyseg. No trailer, camper, but, automobile, motorcycle, boat or other vehicle or equipment ('vehicle') shall be permitted to remain upon the Lnd overnight after 11:15 p.m. or before 5:00 a.m. No use or operation shall be made, conducted or permitted on or with respect to all or any part of the Land or improvements thereon which is obnoxious to or out of harmony with the residential and/or comercial neighborhood In the vicinity of the Lnd. Included among the uses or operations which are prohibited and are deemed to conflict with the reasonable standards of appearance and maintenance required hereby, are uses or operations which produce or are accompanied by the following characteristics, which list is not intended to be all inclusive: I..UMM. ea/ n U 14 ' 3.7 No Subdivision. Grantee shall not effect any change or amendment to the Final Nap covering the Land or record any further parcel or final map of the Land or any portion thereof or facilities thereon pursuant to the California Subdivision Nap Act or any similar law and/or local ordinaneem adopted pursuant thereto, or file any tentative maps or applications with respect thereto with any governmental agency, nor shall Grantee file or record a condominium plan covering the land or any portion thereof or any improvements thereon or any Applications with respect thereto nor shall Grantee convey a portion consisting of less than all of this land, unless expressly approved by Declarant which approval may be withheld by Declarant in its sole discretion. 3.8 Zonine. Grantee shell roc use or develop or attempt to use or develop the Land or any portion thereof for any purpose other than those purposes expressly allowed under the zoning ordinance of ordinances of the governmental entity having zoning jurisdiction over the :-and. Additionally, Grantee *hall not at any time change or attempt any change in zaning, or obtain or apply for a conditional use permit, zoning variance or exception or other similar approval with respect to the use or development of the land or any portion thereof not expressly allowed under such existing zoning ordinance, unless expressly approved by Declarant, which approval may be withheld in its mole discretion. Notwithstanding the foregoing, Declarsnt shall not unreasonably withhold its consent to Grantee's application for such conditional use permit as may be required for development of the Land with the Specific Facilities. Grantee shall obtain Declarant's consent prior to placing much application on the agenda of Grantee's discretionary body or submitting any such application or related documents to any other governmental agency and thereafter will submit copies of all much documents to Declarant for its review and information. `— _ e....�..—,.m�m.e'K �wmeeiea.+er.+,m,..nrn.•,e+rac�R^.mnev,m++.w�n.��-..-o..m+r. t�.maw Rte,.–....,.•..,.�.."�...� . ' (a) Any public or private nufsanca; (b) Any vibration, miss, sound or disturbance that is r objectionable due to intermittence, heat, frequency, shrillness or loudness; d (e) Any direct lighting which is not shielded And confined n within site boundaries; / (d) Any emission of odors, noxious, caustic or corrosive cutter, whether toxic or nontoxic; (e) Any litter, dust, dirt or ash in excessive quantities; I (f) Any use Of A structure of A temporary character, trailer, tent, aback, garage, barn or other outbuilding except for such structures maintained on the land during a period permitted for construction or reconstruction of improvements; (g) Any service, maintenance, repair or washing of any vehicle on the land at any time except for emergency service necessary to save a vehicle to a maintenance facility off of the land; (h) Any raising, breeding or keeping of animals, livestock or ' poultry of Any kind; (1) Fuel storage of any type; 'J i (j) Any accumulation of rubbish, crash or garbage. All refuse containers, air conditioning devices, utility areas, storage areas and machinery and equipment shall be prohibited upon the land unless screened from view from all adjoining lots and public and private streets; and (k) Any exterior radio antenna, television antenna, •C.B.• antenna, 'satellite dish," microwave transmitting or receiving antenna or other antenna, transmitting or receiving device of any type unless it is screened from •. view from all adjoining lots and public and private streets. Any screen required under this Section shall consist of permanent landscaping and/or improvements in harmony with other landscaping and improvements In the Center and approved in writing by Declarant. The provisions of this Section entitled 'Prohibited Operations and Usec• shall not in any way supersede the other Restrictions. 3.7 No Subdivision. Grantee shall not effect any change or amendment to the Final Nap covering the Land or record any further parcel or final map of the Land or any portion thereof or facilities thereon pursuant to the California Subdivision Nap Act or any similar law and/or local ordinaneem adopted pursuant thereto, or file any tentative maps or applications with respect thereto with any governmental agency, nor shall Grantee file or record a condominium plan covering the land or any portion thereof or any improvements thereon or any Applications with respect thereto nor shall Grantee convey a portion consisting of less than all of this land, unless expressly approved by Declarant which approval may be withheld by Declarant in its sole discretion. 3.8 Zonine. Grantee shell roc use or develop or attempt to use or develop the Land or any portion thereof for any purpose other than those purposes expressly allowed under the zoning ordinance of ordinances of the governmental entity having zoning jurisdiction over the :-and. Additionally, Grantee *hall not at any time change or attempt any change in zaning, or obtain or apply for a conditional use permit, zoning variance or exception or other similar approval with respect to the use or development of the land or any portion thereof not expressly allowed under such existing zoning ordinance, unless expressly approved by Declarant, which approval may be withheld in its mole discretion. Notwithstanding the foregoing, Declarsnt shall not unreasonably withhold its consent to Grantee's application for such conditional use permit as may be required for development of the Land with the Specific Facilities. Grantee shall obtain Declarant's consent prior to placing much application on the agenda of Grantee's discretionary body or submitting any such application or related documents to any other governmental agency and thereafter will submit copies of all much documents to Declarant for its review and information. 3.9 Indemnity. Declarant and Declarant'a put and present employees, officers, directors, shareholders, agents aM representatives and its and their respective successors and "signs (collectively, the •Iudsanirwas') shill not be liable for any loss, damage, injury or claim of any VIM or character to any person or property arising from or caused by (a) the Improvement, development, maintenance, use, lease or other conveyance of the I M or improvements thereon or any portion thereof or interest therein, including, tithout limitation, any loss, damage, injury or claim arising from or caused by or alleged to arise from or be caused by (i) any use of the LM or any part thereof, (ii) any defect in the design, construction of, or material in any structure or other improvement upon the Land, (111) any defect in or contamination of soils or in the preparation of soils or in the design and accomplishment of grading, (including the existence of any contaminants or hazardous materials in or on the soil), (iv) any act or omission of Grantee or any of its agents, employees, licenseem, inviteas, or contractors, (v) any accident or casualty on the Land, (vi) any representations by Grantee or any of Ste agents or employees, (vii) any violation or alleged violation by Grantee, its employees or agents of any lav now or hereafter enacted, (viii) any slope failure or subsurface geologic or groundwater condition, (ix) any work of design, construction, engineering or other work with respect to the Land, (x) any other cause whatsoever in connection with Grantee's use of the lend or Grantee's performances under this Declaration, or any other agreement with Declarant relating to the Land, or (b) the negligence or willful misconduct of Grantee or its employees or agents in the development, construction, grading or other work performed off the land by Grantee pursuant to this Declaration, or (c) the breach by Grantee of any of its obligations under this Declaration, Furthermore. as a material part of the consideration of this Declaration, Grantee hereby waives on its behalf all claims and demands against Declarant for any such loss, damage, or injury of Grantee, and agrees to indemnify, defend and bold harmless Declarant and its property, and the other Indemnitees from all loss, liability, damage, costs and expenses (including attorneys' fees) arising from or related to any such loss, damage, injury or claim, whether incurred or made by Grantee or any other person(s). The foregoing waiver and indemnity shall apply to a claim or action brought by a private party or by a governmental agency or entity under any statute or common lav now or hereinafter in effect and is intended to apply with respect to loss, damage, injury or claim arising before or after the lease, sale or other conveyance of any portion or all of the land or any improvements thereon. With respect to design, construction methods, materials, locations and other natters for which Declarant has given or will give its approval, recommendation or other direction, the foregoing waiver, indemnity and agreement shall apply irrespective of Declarant's approval, recommendation or other direction. Notwithstanding anything to the contrary above, nothing contained in this Section shall operate to relieve Declarant or the other Indemnitees from any loss, damage. Injury or claim ultimately established by a court of competent jurisdiction to have been caused by the sole negligence or willful misconduct of Declarant or the other Indemnitees. Grantee's covenants in this Section arising from or related to acts or occurrences during the tine of Grantee's ownership shall survive the lease or other conveyance of all or any part of the land or improvements thereon and shall be binding an said Crantee (" well as its successors to the Land) until such time as action against the Indeamitees is absolutely barred by an applicable statute of limitations. ARTICLE 4. DECIARANT'S RIGHT OF FIRST REFUSAL_ Except with regard to 'Permitted Transfers• described in the Section above entitled 'Transfers", if, at any time prior to the twenty fifth (25di) anniversary of the Effective Date, Grantee shall determine to transfer all or any part of the Land or the improvements thereon or any interest there: -n (•Interest•), Grantee shall notify Declarant of the price and the terms or, which Grantee will be willing to transfer. If Declarant, within sixty (i-0) days after receipt of Grantee's notice, indicates in writing its agreement to purchase said Interest for the price and on the teras stated In Grantee's notice, then Grantee shell transfer and convey the Interest to Declarant for the price and on the terms stated in such notice. If Declarant does not indicata Its agreement within such sixty (60) day period, then Grantee thereafter shall have the right to transfer and convey the Interest to a third party, but only for a price not less than the price offered to Declarant end on to rm• not more favorable than those stated in the notice. if Grantee does not so transfer and convey the Interest within one hundred eighty (180) days after Grantee's notice, than any further transactions (including a transaction on the same price and terms previously submitted to 10 i- n U .. • -." ova MncvnJUl+f.!1✓C4YtT�^,M1%�^t�•'. mJ*v.e,'�^YiW.:e M!t`a!T.)� c'S"5+.v-. t•:1:. -.,:,a! Fn`..CifvM+-RJrY.+..v- :-.rrn�..+..>,+.-...,-- Declarant) shall be deemed A new determination by Grantee to transfer and convey said Interest, and the provisions of this Article shall again be applicable. ARTICLE 5. 5.1 Default and General Reaedies. In the avant of any breach, Y --tolation or failure to perform or satisfy any of the Restrictions which has not + f been cured within the applicable cure period as set forth below, Declarant at its 'v sole option end discretion my enforce say one or more of the following remedies or any other rights or remedies to which Declarant my be entitled by lav or equity, whether or not set forth herein. unless a cure period is otherwise / 1 specifically designated, a cure period shall commence when written notice is given to Grantee of a violation hereunder and shall and tan (10) Jaya thereafter in the case of a monetary default and thirty (30) days thereafter in the we of a nommnetary default; provided, however, that if a nocmonetary default is not ' reasonably susceptible to cure promptly within the thirty (30) day period, then Grantee shall have a reasonable time to cure the ease: so long as Grantee has commenced such cure promptly within the thirty (30) day period and thereafter diligently prosecutes the cure to completion. To the maximum extent allowable by lav, all remedies provided herein or by lav or equity shall be cumulative and not exclusive; provided, however, that except as provided in the following 1 sentence in the event Declarant elects to exercise any ramdy provided for in Section 5.3 hereof based upon a particular violation of the Restrictions, such �! remedy shall be Deelarant's sole and exclusive remedy for such violation of the Restrictions. Notwithstsulimg the foregoing, Declatant's remdfes for a violation or breach of Section 3.10 (Indemnity) shall be cumulative with and in addition to its remedies for other violations or breaches under this Declaration. 1 (a) Danaees, Declarant my bring a suit for dnnages for any 1 compensable breach of or noncompliance with eny of the Restrictions, or declaratory relief to determine the enforceability of any of the Restrictions. (b) Eauity. It Is recognized that a particular or ongoing violation by Grantee of one or core of the foregoing Restrictions my cause Declarant to suffer material injury or damage not compensable in money damages (including, but not limited to, irreparable effects on the type and quality of development on and use of the Renefitted property or portions thereof and/or frustration of Declarant's purpose for conveyance of the land to Cranes), and chat Declarant shall be entitled to bring an action in equity or otherwise for specific performance to enforce compliance with the Restrictions or an injunction to enjoin the continuance of any such breach or violation thereof, whether or net Declarant exercises any other remedy set forth herein, 5.2 Inspection. Declarant or its authorized representatives my from time to time, at any reasonable hour, enter upon and inspect the Land, site or any portion thereof or Improvements thereon to ascertain compliance with the Restrictions, but without obligation to do so or liability therefor. 5.3 option to Repurchase the land. Upon any proposed, attempted or actual 'transfer' In violation of the provisions of Section 2.7 above and, in addition to the foregoing remedies described in Section 5.1, upon any violation of the Restrictions itemized in Sections 2.Va) ("Improvement and Continued Use•) or 2,1(c) ('Commencement and Completion'), Declarant, in Its sole option and discretion, shall be entitled to repurchase the land as provided below. (Declarant shall not be entitled to repu'cchase the land unless a proposed, attempted or actual transfer in violation of Section 2.7 has been initiated, a violation of the restrictions in violation of 2.1(a) has occurred or construction has not been commenced or completed as required by Section 2.1(c).) (a) Grant of Darion. Gcancee hereby grants to Declarant an exclusive option to purchase the Land subject only co: (L) Current taxes not yet delinquent; (ii) Natters affecting title existing at the Effective Data of this Declaration, excluding any nortgage, deed of trust or similar instrument to which Declarant has subordinated the Enforcement Rights pursuant to Section 2.8 above; 11 =w. .3'YX�,.."�yi.�. .' i7p1FPF'�..�M'iPT%°""'�R,cC�J^TI.M1.•'31rr`R[RJ,3f.+^!iwN'A.4+,T'Sv...r.r'���^.ee�_+w+�...�. (110 Natters affecting title which ars created, made, assumed, consented to or requested by Declarant, its successors or "signs, excluding any mortgage, bad of treat, any matter related to issuanes of any public obligation or &talar instrument to which Declarant F" commented without exercise of the Enforceasnt Rights or to which Declarant hes subordinated the Enforcement Rights pursuant to Section 2.8 above; (iv) Natters shown " prints exceptions in the standard fora California Land Title Association owner's policy of title insurance. (v) Noninterfering easements for utilities used In connection with the Improvements constructed on the land. (b) Exercise of Reourcheee Option. Declarant sty exercise its option to repurchase the lAnd by giving written notice to Grantas of Declarant's election to repurchase within (1) sixty (60) days after receipt of Grantees notice of proposed -transfer- " provided In Section 2.7 (Transform) above, (if) within ninety (90) days after Declarant receives actual notice of any transfer or attempted transfer in violation of any provision in Section 2.7, (111) within ninety (90) days coswencing thirty (30) days after delivery of notice to Grantee of violation of the Restrictions itemized in Section 2.1(a) if such violation ham continued unabated, or (iv) within one hundred eighty (180) days of the respective commencement or completion dates (as such dates may be extended pursuant to the terns of this Declaration) in the event of Grantee's violation of Section 2.1(c) above. For purposes of this Section 5.3, Declarant's actual notice shall mean notice to the person to whom notice may be addressed under Section 6.7 0£ this Declaration, and no ocher persons. No failure of Declarant to exercise its option upon Grantee's failure to commence construction me provided above shall constitute a waiver of its right to exercise the option upon Grantee's failure to complete construction by the appropriate date, as described above. No failure of Deelarant to exercise its option in the event of any proposed, attempted or actual 'transfer• (whether approved by Declarant or not) 1n violation of Section 2.7 above shall constitute a waiver of Declarant's rights to exercise the option upon any such transfer subject to Section 2.7 which might be proposed, attempted or censummated at a later time. No failure of Declarant to deliver a notice of violation of the Restrictions contained in Section 2.1(a) shall constitute a waiver of Declarant's rights to deliver such notice at any tine and exercise the option. Rescission of any notice of violation of the Restrictions itemized in Section 2.1(a) prior to the option becoming exercisable, or If such violation is cured, after the option becoming exercisable shall not constitute waiver of Declarant's right to later notify Grantee of a new violation and exercise the option. Any rescission of notice of exercise of this option shall not constitute waiver of Declarant's right to exercise the option again if a later event causes the option to become exercisable. (c) Excitation and Out tclsim. Unlesaexereisedby Declarant, this option shall expire upon the twenty fifth (25th) anniversary of the Effective Dace. After expiration and upon written request therefor by Grantee, Declarant shall execute and deliver to Grantee a quitclaim deed satisfactory to Declarant relinquishing all of its rights under the option to repurchase portion of this Declaration. (d) Repurchase Price. Declarant's purchase price for the Land upon its exercise of the option provided above, shall be the greater of: (f) An amount including the following: (A) The price attributable to the Land equal to the lesser of (A) $4,400,000 increased or decreased by CPI adjustments which shall be limited to an annualized increase or decrease of five percent (5e) per annum or (B) the appraised fair market value of the Land with the we restricted to the use for which Declarant notifies Grantee at the time of exercise of the option that it intends to use the Land. Declarant shall notify Grantee that it intends to use the Land either for commercial office or retail use at the time of delivery of the notice of exercise or any time thereafter (Failure of Declarant to specify a use in conjunction with delivery of a notice of exercise of the option shall not invalidate or otherwise affect exercise of the option.). The CPI edj-,atment shall be the percentage Increase or decrease in the CPI measured from the month which to two months prior to the Effective Date to the month which is two months before the date of delivery of the notice of exercise. 12 (11) The unamortized principal amount, plus interest of, and expenses (including without limitation costs to redeem and discharge including any call premium provided that aggregate call premiums &hall be limited to five percent (5e,) of principal) incurred in connection with, any issue of public obligations where the proceeds have been used only for costs and expenses related to construction of the Specific Facilities on the Land provided that the original principal amount of such public obligations dose not exceed $6,000,000.00 and provided that the amount payable to Grantee under this subparagraph (ii) shall be reduced and offset by any and all funds held for the benefit of any holders of public obligations other than funds held to pay the costs of issuance, if any. (e) Repurchase Escrow Tema. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consummate, the purchase as specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preiiminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by Written notice to Grantee through escrow, shell be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the Land or any portion thereof is encumbered by a mortgage or deed of trust. Declarant may unilaterally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Grantee through the foregoing escrow. Any additional amount necessary to satisfy :inch indebtedness shall be paid by Grantee, Grantee and Declarant shall each pay one-half of the escrow fees. Grantee shall pay for documentary tax stamps, for recording the deed, and for a California Land Title Association standard form owner's coverage policy of title insurance in the amount of the purchase price showing title to the Land vested in Declarant or its assigns free and clear of all liens, encumbrances or other title exceptions other than those set forth in this Declaration. Any other costs or expense shall be allocated between tho parties in the nannar customary in Orange County, California. (f) Irrevocability. Ths option created hereby shall be irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) Warranties. Plans and Specifications. In the event Declarant reacquires all or any portion of the Land, the Specific Facilities or the Other Improvements under this Section 5.3, Grantee shell assign and transfer to Declarant for no additional consideration, all warranties, plans and specifications relating to the Unable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 ' The CPT shall be the Consrmer Price Index for All Urban Conauaera Los Angeles- Anaheim-Aiversida Metropolitan Area (all items) compiled by the United States Department of Labor, Bureau of Labor Statistics, basad upon 1982-84 as 100; ��- provided, however, that if the CPI is modified or changed, then the GPI shall be J a converted or substituted index as dsteru6isd by Declarant. Plum [e] The fair market values of the Useable �- Impnovemanta, if any, an the Land at the time the Option is exercised. The J -Useable Improvements' &ball be limited to those interior areas of buildings which can be need or converted for use as interior commercial or retail rentable I� space in accordance with the use which Declarant intends to put the Useable I Improvements as designated by Deelarent. Fair market value of such Usesbla Improvements shall be determined using an income method of appraisal based upon comparable rents determined foot basis for the footage ' on a useable square square of the Useable Improvements offset by the cost of any improvements required to 1 I convert the use of the building to the use which Declarant notifies Grantee that 1t intends to put the Usable Improvements. Less (C] All costs, expenses, interest, fees, advances I , and other sums required to be paid by Grantee to Declarant hereunder, to the extent not reimbursed to Declarant by Grantee, shall reduce the amount of any ! repurchase price to be paid by Declarant under the terms of the repurchase option contained in this Declaration. Or ' (11) The unamortized principal amount, plus interest of, and expenses (including without limitation costs to redeem and discharge including any call premium provided that aggregate call premiums &hall be limited to five percent (5e,) of principal) incurred in connection with, any issue of public obligations where the proceeds have been used only for costs and expenses related to construction of the Specific Facilities on the Land provided that the original principal amount of such public obligations dose not exceed $6,000,000.00 and provided that the amount payable to Grantee under this subparagraph (ii) shall be reduced and offset by any and all funds held for the benefit of any holders of public obligations other than funds held to pay the costs of issuance, if any. (e) Repurchase Escrow Tema. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consummate, the purchase as specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preiiminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by Written notice to Grantee through escrow, shell be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the Land or any portion thereof is encumbered by a mortgage or deed of trust. Declarant may unilaterally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Grantee through the foregoing escrow. Any additional amount necessary to satisfy :inch indebtedness shall be paid by Grantee, Grantee and Declarant shall each pay one-half of the escrow fees. Grantee shall pay for documentary tax stamps, for recording the deed, and for a California Land Title Association standard form owner's coverage policy of title insurance in the amount of the purchase price showing title to the Land vested in Declarant or its assigns free and clear of all liens, encumbrances or other title exceptions other than those set forth in this Declaration. Any other costs or expense shall be allocated between tho parties in the nannar customary in Orange County, California. (f) Irrevocability. Ths option created hereby shall be irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) Warranties. Plans and Specifications. In the event Declarant reacquires all or any portion of the Land, the Specific Facilities or the Other Improvements under this Section 5.3, Grantee shell assign and transfer to Declarant for no additional consideration, all warranties, plans and specifications relating to the Unable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 - .�.:n .-^v..-�nnJRlf","r'C7ST teR.+'�!'!;rc�".'e' .<^'4s.:�o^s.R"•' .. .^^. r_.roar..r.,-.. .. ...... �..,...T _. I 5.4 ALbltretinn Procedure. If Declarant and Grantee are not able to agraa to the fair markat value of the Land or the Useable Improvements within thirty (30) days after the date Declarant gives Create• notice of exorcist of the option, then the folloving arbitration procedure shall apply: [AI Declarant shall within sn additional thirty '30) days, at Declarant', cost, deliver to Grantee a written appraisal of the applicable highest fair market value with which Declarant agrees, prepared by an Independent qualified appraiser (•Daclarant'a Appraisal-). The tam 'independent qualified appraiser- as used in this Section shall mean a professional independent appraiser who is a Member of the American Institute of Raal Estate Appraisers (R.M, or M.A.I.), the Society of Real Estate Appraisers (S.R,A., S.R.P.A., or S.R.B.A.), the American Society of Appraisers (mother or senior member A.S.A.), or another recognized association of appraisers, or a similar association of real estate appraisers that has adopted rules and regulations governing the profeaeional conduct and ethics of its members requiring indenendant so raisals without bias to env natty or to any result, or has such other education and experience so as to be considered qualified by both parties. [B] If Grantee does not agree with Declarant', Appraisal, Grantee shall notify Declarant in writing of such disagreement In writing within ten (10) days after receipt of Declarant'a Appraisal. Vithin thirty (30) days of such notice, Grantee shall at its cost deliver to Declarent a written appraisal of the applicable highest market value with which Grantee agrees, prepared by an independent qualified appraiser ('Grantee's Appraisal'). If Grantee fails to deliver Grantee's Appraisal within the time provided, or if Grantee's Appraisal of fair market value is lover than or equal to that contained in Declarant's Appraisal, then Declarant's Appraisal shall constitute the final and binding determination of the applicable fair market value. [C) If Grantee's Appraisal is delivered to Declarant within the time provided and is higher, than Declarant's Appraisal, and if Declarant and Grantee cannot then agree as to the applicable highest fair market value within ten (10) days after delivery of Grantee's Appraisal to Declarant, then Declarant and Grantee shall within ten (10) days thereafter mutually agree on a third independent qualified appraiser acceptable to them to make an independent determination of the applicable highest fair market value (the "Final Appraisal"). Such Final Appraisal shall be delivered to Declarant and Grantee within thirty (30) days of the selection of the third appraiser. If Declarant and Grantee do not agree on a third independent qualified appraiser acceptable to them as specified above, then such third appraiser shall be appointed in accordance with the provisions of California Code of Civil Procedure Section 1281.6, or any successor statute, and in such event the Independent determination of the highest fair market value made by the third appraiser so appointed shall be the "Final Appraisal.' If the third appraiser must be appointed pursuant to the provisions of the California Code of Civil Procedure Section 12B1.6, or any successor statute, Declarant shall file a petition to appoint the third appraiser with the Superior Court of Orange County, California ('Court•), and shall at the bearing on the petition on the earliest date permitted by the Ceurt'a calendar and by the applicable notice period required by law. Declarant and Grantee shall share equally the coat of the Final Appraisal. If the Final Appraisal states a fair market value between that of Declarant's Appraisal and Grantee's Appraisal, the Final Appraisal shall be the final and binding determination of the applicable market value. If the fait market value established in the Final Appraisal is higher than (1) the fair market value established in Grantee's Appraisal or is lover than (2) the fair market value established In Declarant's Appraisal, or equal to either, then the final determination of the applicable fair market value shall be (1) or (2) depending upon which one is equal or closer to the fair market value established in the Final Appraisal. (D[ The procedure set forth above for determining the applicable market value shall be the exclusive procedure therefor and shall be final, binding and nonappealable unless expressly valved by both parties in writing. It is the responsibility of Grantee to ensure that this procedure for determining highest fair market value 1s instituted in sufficient time to satisfy any commitments, agreements or needs of Grantee. 5.5 Waiver. No Waiver by Declarant of a breach of any of the Restrictions by Crantee and no delay or failure to enforce any of the 14 leaHN,!ct.�k�.'I�,fe_eG'M.•�.•r...a.Y a=�a-.-nom _.r..,.. -o.,.,-..»: ,........ Restrictions cliall be construed or hold to be a waiver of any succeeding or preceding breach of the same or any other of the Restrictions. No waiver of any breach or default of Grantes hereunder shall be implied from any omission by Declarant to take any aetiea on account of such breach or default if such breach J or default persists or is repeated, and no axprasm waiver shall affect a breach or default other than as specified in said waiver. The consent or approval by ^ gsclarant to or of any act by Grantee requiring Declarant's convent or approval shall not be deemed to waive or render unnecessary Declarant's consent or approval to or of any subsequent similar acts by Grantee. , 5.6 Goats of Enforcement. In the event any legal or equitable 1 action or proceeding shall be instituted betwaan Declarant and Grantee to enforce any provision of this Declaration, the party prevailing in each action shall be entitled to recover from the losing party all of its costs, including court costs and reasonable attorneys' fees. ' 5.7 Rights of Lenders, No breach or violation of the Restrictions shall defeat or render invalid the lien of any mortgage, deed of trust or similar instrument securing a loan made in good faith and for value with respect to the development or permanent financing of the land or any portion thereof; provided, however, that this Declaration and all provisions hereof shall be binding upon and affective against any subsequent owner or other occupant of the Land or portion thereof whose title is acquired by foreclosure, trusteefs sale or deed in lieu of foreclosure bur. (a) such subsequent owner aball have a reasonable time after acquiring title in which to cure any violations or correct and change ary facts giving rise to DeclaranC's rights under this Declaration occurring prior to such transfer of title and which are reasonably capable of being cured or it changed provided, that such subsequent owner diligently acts to effect such cure or change (and in the event of such diligent and timely cure, such subsequent owner shall have no further liability In connection with such prior violation or the continued existence of such violation until such cure Is completed), and (b) Sections 5.1(a) (Damages) and 5.3 (Option to Repurchase the Land) shall not be applicable as to such subsequent owner with regard to any noncurable default i accurring prior to the time such subsequent owner acquired title. Notwithstanding the foregoing, any such subsequent owner shall be required to use the Land in accordance with the restrictions set forth in Section 2.1(a) and diligently complete construction of any Specific Facilities and Other Improvements which are incomplete on the date such subsequent owner acquires title, all subject to the requirements contained in this Declaration, except the time periods referred to in Section 2.1(c) shall be reasonably extended_ For purposes of this Section, the construction or installation of any improvement in violation of the requirements of this Declaration shall be deemed ecurablee so long as reconstruction, repair or replacement in a manner consistent with the requirements of this Declaration is physically and legally possible (without respect to cost). 5.E Advances. Declarant shall be entitled to advance any sums Declarant in its sole discretion deems necessary to protect and preserve the security for its rights and interest under this Declaration (including but not limited to sums for completion of construction of the Specific Facilities or any offsite improvements, any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbran:es or lie" or other charges on any portion of the Land which appear to be prior to Declarant's rights and interest under this Declaration), all of which advances together with interest at the maximum contract rate then permitted by law shall be paid to Declarant upon demand. ARTICLE 6. GENERAL PROVISIONS 6.1 Unavoidable Delay. Any prevention, delay or stoppage in the work of building the Specific Facilities, Che Other Improvements and any other related improvements or other work as provided for in this Declaration caused by acts of God, war, inability to obtain labor or materiels or reasonable substitutes therefor, or other similar matters or causes beyond the reasonable control of Grantee shall extend the time within which this Declaration requires certain acts to be performed for a period or periods equal to any period of such prevention, delay or stoppage, but nor to exceed in the aggregate one year; provided, houzver, that nothing in this Section shall excuse the prompt payment of any and all amounts due from Grantee to Declarant as required herein or the performance of any act rendered difficult because of the financial condition of 15 _J -Grantee or because of any inability of Grantee to obtain funding from any •ource- Vithout limiting the generality of the foregoing, in no event shall crantee's Inability to obtain construction or permanent financing for davelopornt of the Land, or a portion thereof, constitute An unavoidable delay pursuant to this Section. Purthermre, in no avant shall any extension of any period of ties be dse d to have occurred unless Grantee shall have given written notice to Declarent within fifteen (15) days following any Such delay, setting forth the facts giving rise to such extension; and provided further that the period of time for exercise of Declarant'• rights shall be co>•ensuracaly extended. 6.2 CMAInuous DD.Z.LioN. Grantee Shall proceed continuously AM diligently in accordance with the term and conditions of this Declaration. In the event Grantee does not proceed continuously and diligently, such failure to so proceed may, at the option of Declarant, be considered an event of default herein, except as such failure is excused by reason of any unavoidable delay as ,at forth in the Section hereof entitled 'Unavoidable Delay. - 6.3 Covenants to Run With the [and: Term. (a) Covenants to Run With the Land. The Lend shall be held, improved, developed, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the Reatrictiene set forth in this Declaration. The Restrictions are for the benefit of the Benefitted Property and are intended and shall be construed as covenants and conditions running with and binding the Land and equitable servitudes upon the Land and every part thereof. furthermore, all end each of the Restrictions shall be binding upon and burden all persons having or acquiring any right, title or interest in the [and, or any part thereof, and their successor. and assigns, and shall inure to the benefit of the Benefitted Property and the owners of the Benefitted Property, their successors end assigns, and shall be enforceable by Declarant and its successors and assigns, all upon the terms, provisions and conditions set forth herein. (b) Tern. All of the terms and provisions set forth in this Declaration shall continue in full force and effect in perpetuity, except that Declarant -s 'Enforcement Rights' (as described in Section 2.8 above) shall terminate twenty-five (25) years from the Affective Date hereof. (The provisions of this Declaration which shall survive in perpetuity shall include, without limitation Article 1, Sections 2.1 through 2.6, inclusive, 2.9, 2.10, Article 3, Sections 5.1, 5.2, 5.5 through 5.8, inclusive, and this Article 6.) 6.4 Assitnment by Declarant. Declarant may assign any of its rights and powers under this Declaration to any fee owner of any portion of the Benefitted Property, so long as such person or entity in writing agree. to assume the duties of Declarant pertaining to the particular rights and powers assigned. Upon the recordation of such writing accepting such assignment and assuming such duties, such person or entity shall, to the extent of such assignment, have the same rights and powers and be subject to the same obligations and duties as are given to and assumed by Declarant herein. Without limiting the generality of the foreboing, Declarant may make such assignment as to the entire fond or to any portion thereof- Unless specifically assigned in writing as stated in this paragraph, Declarant alone shall have the right to enforce the Restrictlous and the other provisions of this Declaration or to recover damages or other amounts for violation of the Restrictions or breach of Grantee's duties hereunder. 6.5 Amendments. Except .zs provided in this Declaration Concerning (a) substitution of other real property AS the Benefitted Property, (b) release of any portion or all of the [and from this Declaration, (c) reacquisition of the Land by Declarant and (d) assignment by Declarant of its rights under this Declaration, this Declaration may be terminated, extended or emended only by a writing executed by Declarant and Crantee and recorded against the Land. 6.6 Release. (a) Release by Declarant. Declarant may release any portion of the Land from this Declaration at any time and for any reason without the approval of Grantee. (b) Not Aoolicable to Declarant. Notwithstanding anything herein contained to the contrary, if Declarant reacquires title to the Land or any portion thereof at any time after the date hereof and record(s) a notice of 16 termination of theta Restrictiorm in the Office of the County Recorder of Orange County, California, those Restrictions shall cwt and tormicate and be of me further force or effect as to declarant and such property, effective as of the date of such recordation. 6.7 Notice. All notices, consents, requests, demands and other communications provided for herein shall be in writing and shall be dammed to have been duly given if and when personally served or forty eight (48) hours after beim sent by United Starts registered mail, return receipt requested, postage prepared, to the other party at the following respective addrassas: DECLARANT: IME IRVINE CD"ANY c/o IRVINE LAND NANAGHffiIT COMPANY Post Office Box I Newport Beach, California 92656-8904 Attention: Presidont/IIXC GRANTEE: City of Newport Beach 3300 Newport Boulevard Peat office Box 1768 Newport Beach, CA 92659-1768 or at such other address as Declarant or Grantee may designate to the other in writing in accordance with the provision of this Section. i 6.8 Coverninr ince, ibis Declaration shall be governed by and construed under the laws of the State of California. 6.9 Severabili[v. In the event that any portion of this Declaration shall become illegal, null or void or against any public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void or against any public policy, the remaining portions of this Declaration shall not be affected thereby and shall remain in force and effect to the full extent permitted by law. 6.10 Captions. The captions used herein are for convenience only and are not a part of this Declaration and do not in any way limit or amplify the terns and provisions hereof. 6.11 Entire Arreement. This Declaration, including Exhibits attached hereto which are incorporated herein by this reference, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understanding% of the parties hereto, oral or wrictcn, are hereby superseded and merged herein. The forgoing sentence shall 1. no way affect the validity of the Agreement pursuant to which Grantee acquired the land or any instruments executed In connection therewith. 6.12 Gender and Number. In this Declaration (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural include one another. 6.13 Time of the Ess epee. Tine fa of the essence of each provision of this Declaration in which time is an element. 17 7. n U ►J • IN WITNESS WACREAF, the undersigned hove executed chis Declaration an of the date written below. 'DECLARANT' •CNANIT. TRE IRVINE COMPANY, CITY OF NEWPORT EEACB, a Michigan corporation a California auric pal corporation ' By:. l L� �Ar� BY. � �T� Its: Yld'.4, I Mayor Ey: ATYEST: Its• a6 r+a �/ Ey: / I": City Clark X11 �R e APPRO COI4ffiroEo O � By: V S Its: City Manager a �t G LLFVa AP TO FORM: Ey: r : C'cy Attorney STATE OF CALIFORNIA ) ��L ).as COUNTY OF O J On this,&dday of in the year 19y�-before no, the undersigned, a Notary Public d for said State, personally appeared 'f. and i . personally immm to we or proved to me on the bass of f satisfy to —evidence) to be the per sa o executed the within instrument a�.4ei--Y- and respectively, on behalf of THE IRVINE COMPANY and acknowledged to u that a corporation executed it. WIINRSS my hand and official seal No In and fc said State .w u.m 1R n ►J r STARE OF GLIFomak ) ) nes COUNTY OF OPRIM ) _ on March 19, 1994, before me, the Undersigned, a notary Public in and for the State, personally appeared Phil sa6Eons, known to me to be the Mayor, Robert L. wenn, known to se to be the City Manager, and Wanda E. Raocio, known to me to be the City Clerk, on behalf of the CM OF NENPORT BEACH, which executed the Within instrument pursuant to governing law and a resolution of its i board of directors and acknowledge to no that the CITY OF NEWPORT =. BEACH executed it. WITNESS my hand and official sea P1, SEAL Notary PUbI1C or S ° — 9ulHIA eOaMweuC•fwtaea. Hwa caws eyowaaawe�u.,n� 0 MMIBIT i To Declaration of Special Restrictions �T Icgal Description of 'Benefitted Property EXHIBIT "1" LEGAL DESCRIPTION BENEFITED PROPERTY FOR THE CITY OF NEWPORT BEACH LIBRARY SITE FaLreal(500 and 550 Newport Center Drive and Adjacent Land) That portion of Block 93 of Irvine's Subdivision in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 1, Page 88 of Miscellaneous Records Maps in the Office of the County Recorder of said Orange County, described as follows: BEGINNING at the easterly terminus of that certain course shown as having a bearing and length of •South 80'14138" Rest 91.45 feet• in the northerly right- of-way line of San Nicolas Drive on a nap of Tract No. 6015, filed In Book 239, Pages 28 through 41 of Miscellaneous Napa in said Office of the County Recorder; thence along said right line and along the easterly right-of-way line of Newport Center Drive East, the southerly right-of-way line of Santa Ross Drive and the southwesterly right-of-way line of San Joaquin Hills Road, all u shown on said map of Tract No. 6015 through the following courses: North 80'14'38• West 91.45 feet to the beginning of a tangent curve concave northeasterly and having a radius of 25.00 feet; thence along said curve westerly and northwesterly 38.16 feet through a central angle of 87'26049" to a point of reverse curvature with a curve concave westerly and having a radius of 1670.00 feet, a radial line of said curve from said point bears North 82'47149" West; thence along said curve northerly 472.13 feet through a central angle of 16'11'54' to a point of reverse curvature with a curve concave southeasterly and having a radius of 25.00 feet, a radial line of said curve from said point bears North 81'00'17' East; thence along said curve northerly and northeasterly 38.16 feat through a central angle of 87"26'49"; thence tangent from said curve North 78'27'06• East 69.97 feet to the beginning of a tangent curve concave northwesterly and having a radius of 825,50 feet; thence along said curve northeasterly 444.81 feet through a central angle of 30'52'23"; thence tangent from said curve North 47'34.43• East 2.20 feet to the beginning of a tangent curve concave southerly and having a radium of 25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through a central angle of 89'17126" to a point of reverse curvature with a curve concave northeasterly and having a radius of 6072.50 feet, a radial line of said curve from said point bears North 46'52'09" East; thence along said curve southeasterly 329.29 feet through a central angel of 3'D6'25"; thence tangent from said curve South 46'14'16' East 31.81 feet to the northerly corner of Parcel 1 as shown on a map filed in Book 13, Page 41 of Parcel Naps in said Office of the County Recorder; thence leaving said southwesterly right -o£ -way line of San Joaquin Hills Road and along the boundary of said Parcel 1 the following courses: South 44'06'14" West 140,00 feet; thence south 45.53.46• East 183,00 feet to the beginning of a tangent curve concave northerly and having a radius of 25.00 feet; thence along said curve southeasterly and eastarly 39.27 feet through a central angle of 90'00000'; thence tangent from said curve Nortb 44'06'14" East 103.60 feet to the beginning of a tangent curve concave northwesterly and having a radius of 25.00 feet; thence along said curve northeasterly 13.23 feet through a central angle of 3D'l9'Ol" to a non -tangent intersection with vaid southwesterly right-of-way of San Joaquin Hills Road; thence leaving said boundary and along said right-of-way line Sauth 46'14'16" East 48.72 feet to the northerly corner of Parcel 1 as shown on a map filed in Book 21, Page 18 of Parcel Naps in said Office of the county Recorder, said corner being a point in a non -tangent curve concave southeasterly and having a radius of 25.00 feet, a redial line of said curve from said point bears South 16'06'05" East; thence along the boundary of said Parcel 1 the following courses; along said curve southwesterly 13.00 feet through a central. angle of 29'47041"; thence tangent from said curve South 44'06114" West 104.09 feet to the beginning of a tangent curve concave easterly and having a radius of 25.00 feet; thence along said curve southwesterly and southerly 39.27 feet through a central angle of 90'00000"; thence tangent from said curve South 45'53'46• East 186.00 feet to the westerly corner of Parcel 1 as shown on a map filed 1n Book 54, Page 23 of Parcel Naps In said Office of County Recorder; thence leaving the boundary of Parcel 1 as shown taiIett I t ... l eo.rl Ptl on at -3..ut" Vl P lti FIXIPPOP.OR 1 M.r h It. llrl on said sap filed in Book 21, Page 18 of Parcel Naps and along the bouadcy of Parcel 1 ac shorn on said up filed in Book 54, Page 21 of Parcel Nape South 45'53146• Last 68.09 fact to the beginning of a tangent curve cone,,, westerly and having a radius of 40.00 foot; thence continuing along said boundary and said curve ,outheasterly 36.39 fact through a central angle of 52'07123' to the northwesterly corner of Parcel 3 an sbwn on Parcel Nap No, 84-706 filed in Book 192, Pages 1 and 2 0£ Parcel Naps in sold Office of the County Recorder, a radial fine of said curve from said cornet bears North 63.46123' Yost; theme along the boundary of said Parcel 3 and Parcel 2 ac shorn on said Parcel Nap the following eouroos: continuing along said curve southerly 26.44 feet through a central angel of 37'52'37'; thence tangent free said curve South 44'06'14• West 289.00 feet to the northeasterly corner of Parcel 1 sa shown an a sup filed in Book 27, Page 43 of Parcel Naps in said Office of the County Recorder, said corner being the beginning of a curve tangent to last said course, concave northerly and having a radius of 40.00 feat; thence leaving the boundary of said Parcel 2 and along the boundary of said Parcel 1 the following courses; along said curve southwesterly and westerly 62.83 feet through a central angel of 90'001001; thence tangent from said curve North 45'53.46+ West 14.11 feet to the beginning of a tangent curve coneave southerly and having a raditts of 25.00 feat; thence along said curve northwesterly and westerly 39.27 feet through a central angle of 90'00'00•; thence tangent from said curve South 44'06'14• Went 99.44 feet to the beginning of a tangent curve concave southeasterly and having a radius of 25.00 feet; thence along said curve southwesterly 13-46 feet to a non -tangent intersection with the northeasterly right-of-vay line of said San Nicolas Drive me described in a Grant of Easement to the City of Newport Beach recorded in Book 8987, Page 936 of Official Records in said Office of the County Recorder; theme leaving said boundary of Parcel 1 and along said right-ef-way line as described in said Grant of Eaaeueet and as shown on said map of Tract No. 6015 the following courses: North 46'44100• West 92.34 feet to the beglnn£ng of a tangent curve concave southwesterly and having a radius of 950.50 feet; thence along said curve northwesterly 555.92 feet through a central angle of 33'30'38• to the POINT OF BEGINNING. Parcel 2 (Fashion Island Shopping Center) That portion of Tract 6015, in the City of Newport Beach, County of Orange, State of California, as per map filed in Book 239, pages 28 through 41, Miscellaneous Maps, records of said County, lying within the following described boundary; Commencing at the center line intersection of Santa Rosa Drive with Newport Center Drive East az7 shown on said map; thence south 78'27.06' West 48.00 fact along the Westerly prolongation of the center line of said Santa Rosa Drive to a point on a non -tangent curve concave, Westerly and having a radius of 1557.00 feet, said point being the True Point of Beginning, a radial to said point bears North 78'27'06' East, said curve being concentric with the cancer line of said Newport Center Drive East; thence Southerly 1314.59 feet along maid curve through an angle of 48'22'31' to the beginning of a compound curve concave Northerly mad having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve through an angle of 110'52124' to the beginning of a compound curve concave Easterly and having a radius of 1757.00 feet; thence Northerly 1248.07 feet along said curve through an angel of 40'41058• to the beginning of a compound curve concave Southerly and having a radius of 897.00 fast; thence Easterly 2438.09 feet along said curve through an angle off 155'43.57' to the beginning of a compound curve concave Westerly and ;saving a radius of 1557,00 feet; thence Southerly 117.38 feet along said curve through an angle of 4.19'10• to the True Point of Beginning. tauu t wurrme.srt 2 t•s•t o... rttn.t>, .e •[.o.[� a t�tsia J: n U U J R u ►' EXHIBIT 2 To Declaration of Special Restrictions Requirements for Specific Facilities REQUIRMIEMTS FOR SPECIFIC FACILITIES Description of Specific Facilities: A free public library and related driveways, accammwayn and landscaping. Permitted Use: Public Library and related parking of private passenger automobiles during the hours from 6:00 a.m. to 11:30 p.m- daily. Maximum No. of Buildings: 1 Minimisa Gross Floor Area: 10,000 square fact* Maximum Gross Floor Area: 65,000 square feet* Maximum Floor Area Ratio: 50 percent Commencement Date: 12 months from Effective Date Completion Date: 36 months from Effective Date * By setting forth any required minimum or maximm grams foot area above, Declarant does not thereby represent or warrant that Buyer shall be able to develop the land for such density. REQUIREHENIS FOR OTHER IMPROVOUNTS Those improvements required by Exhibit I to the Exchange Agreement. Fmcne. M ap<cl<1 WttleaAL 2 x.0 Sp<c1 Ll< 1i11.U J a r IWb ll, eC EXHIBIT 3 To Declaration of Special Restrictions Subordination Agreement When Recorded Nail To: THE IRVINE C MANY 550 Newport Canter Drive Newport Beach, CA 92660 Attention: Prosidamt/ILMC Space above this line for Recorder's use A.P. No, SUBORDINATION AGREEMENT NOTICE; THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS AND INTERESTS AND YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF L.OWM PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. I. PARTIES AND DATE. This Subordination Agreement (•Agreement") Is made this day of 19 by the CITY OF NEWPORT BEACH, a California municipal corporation ("Owner"), owner of the "Land" (as defined below), and THE IRVINE COMPANY, a Michigan corporation ("TIC"), declarant under the Declaration (defined below). II. ACKNOWLEDGMENTS Owner has executed s Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase (the "Declaration") dated , 19_, and recorded on as Instrument No. in the Official Records of Orange County California as an encumbrance on the title of the real property described as: Parcel in the City of Newport Beach, County of Orange, State of California, as shovn on a parcel map filed in Book _, Pages_ to Inclusive, of Parcel Maps, in the office of the County Recorder of Orange County (the -Land'). Owner has executed, or to about to execute, certain loan documents ('Loan Documents') dated 19 with or in favor of ("lendeV) to obtain and evidence a loan (the "Iran-) from Lender in the amount of $ The Loan Documents have all been delivered to TIC and include, without limitation, a Deed of Trust (the "Deed of Trust') to be recorded concurrently with this Agreement as security for the obligations evidenced by the Loan Documents. Lender is incurring its obligations in connection with the Loan in good faith and for value pursuant to an agreenent with Owner, on which TIC is relying and which is memorialized in the Loan Documents, that the proceeds of the Loan will be expended solely for fin"nting or refinancing of construction of certain improvements on the Land, the plans and specifications for which have been, or will, prior to the comencement of construction, be approved by TIC, all in accordance with the provisions of the Loan Documents, and for no other purpose unless approved by TIC in writing in its sole dlscratlon. A condition precedent to Lender's agreement to make the Loan in that the Deed of Truat shall be and remain at all I:imes a lien or charge upon the Land prior and superior to certain enforcement rights and remedies of TIC under the Declaration. TIC and Owner agree that it is to their mutual benefit that Lender make the Loan to Owner. This Agreement is made in consideration of the mutual benefits 6p"c 1.1 4"tH 61py 4 I 1 �ra tn"tt en .4r...wuYrce Il.t. lHi 1. f�aaaaaaava�_ y ' to TIC: and Owner resulting from the Ivan and for other valuable consideration, the receipt and sufficiency of which L acknowledged by TIC and Owner, -- i SOBOROTP.TION. The Dead of Trust and any renewals or extensions thereof shell be and remain at all times a lion or charge on the Lead prior and superior to Declarant'a right of first refusal contained in Article 4 of the Declaration and the option to repurchase contained in Section 5.3 of the Declaration, (collectively, the "Enforcement Rights-); provided, howmvsr, that (1) the Declaration (including the Enforcement Rights) shall be binding upon and -- effective against any subsequent owner or other occupant of the Led or any portion thereof whose title is acquired by foreclosure, trustae's sale, dead in lieu of foreclosure or otherwise as provided in Section 5.7 of the Declaration, and (2) any subsequent owner shall have the cure rights as provided in Section 5.7. Notwithstanding anything to the contrary contained in this Agreement, lender's foreclosure or similar or related proceeding under the Deed of Trust shall not extinguish the Declaration or TIC's Enforcement Rights, all of which shall survive such proceeding and shall be binding upon any subsequent owner acquiring title from Lander as stated above. IV. HISCELIANFADS A. Entire Atreement. This Agreement shall be the whole and only agreement between TIC and Owner with regard to the subordination of TIC's Enforcement Rights and remedies under the Declaration to the lien or charge of the Deed of Trust. B. Attorneys' Fees. The prevailing party in any litigation respecting this Agreement shall be entitled to reinbursenent of attorney's fees and costs, whether or not taxable, incurred in the litigation. I "TIC" 'OWNER' TRE IRVINE COHPANY, CITY OF NEWPORT BEACH a Michigan corporation By: By: Its: Ira: mayor By ATTEST: Its: By: Its: APPROVED AS TO FORK: By:_ Its: City Attorney �Wc�el M,4lctiaw rablbnt i 2 Dula Nlullm A/,ersllwrce ll. IM STATE OF CALIFORNIA ) ).as CDOHSY OF ) On , 19—, before r, the uadersignad, A Notary public in and for said State, personally appeared and personally known to se (or proved to as on the basis of satisfactory evidence) to be the persons who executed the within instrument u and on behalf of THE IRVINE COMPANY, a Michigan corporation, and ac)nowladgad to me that said corporation executed it. WITNESS my hand and official seal. Notary Public in and for said State STATE OF CALIFORNIA ) ).as COUNTY OF ) On 19—, before me, the undersigned, a Notary Public in and for said State, personally appeared personally )mown to me (or proved to we on the basis of satisfactory evidence) to be the person who executed the within instrument as Mayor, on behalf of City of Newport Beach, which executed the within instrument pursuant to governing lav and a resolution of its board of directors and acknowledged to me that the City of Newport Beach executed it. WITNESS my hand and official seal. Notary Public in and for said State epwl•1 1••e, lctlm• A➢4SVe.CIL J FAa,ilo•tlm tmllll l 4••�muM•N 13. 1eR Exhibit "E" Insurance Requirements Insurance. In addition to insurance required of Tenant to be obtained, provided, and maintained during the construction of the improvements, and without limiting Tenant's indemnification of City, Tenant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. (a) Certificates of Insurance. Tenant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to execution of this Agreement by the City. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. (b) Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. (c) Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. (d) Coverage Requirements. i. Workers' Compensation Coverage. Tenant shall maintain Workers' Compensation Insurance at statutory limits and Employer's Liability Insurance at One Million and 00/100 Dollars ($1,000,000.00) for his or her employees in accordance with the laws of the State of California. Should the Workers' Compensation policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for all losses that relate in any way to this Agreement. ii. General Liability Coverage. Tenant shall maintain commercial general liability insurance in an amount not less than Two Million and 00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Products Liability Coverage. Tenant shall maintain products liability insurance covering bodily injury and property damage for all activities of the Tenant arising out of or in connection with products or services sold by the Tenant under this Agreement, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. iv. Automobile Liability Coverage. Tenant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Tenant arising out of or in connection with the services to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. V. Professional Liability (Errors & Omissions) Insurance. Tenant shall maintain professional liability insurance that covers Tenant and its directors, officers and employees against claims alleging negligent acts or errors or omissions in the rendering of (or failure to render) professional services to third parties, in an amount not less than One Million and 00/100 Dollars ($1,000,000.00) per claim and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. vi. Fidelity Insurance. Tenant shall maintain fidelity insurance that covers protection for Tenant (and their employees) against the dishonest acts of an employee as well as forgery, safe burglary and computer fraud, in the minimum amount of One Million and 00/100 Dollars ($1,000,000.00) per claim and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. vii. Fire and Extended Coverage. Tenant shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs, equipment, personal property and inventory on or upon the Premises from loss or damage in an amount not less than the replacement cost at the time of loss. viii. Tenant shall maintain loss of rent insurance in the amount of $10,500.00, which amount shall be adjusted annually consistent with the rent increase described in Section 4.1 of the Agreement, insuring that the Rent will be paid to City for a period up to six (6) months if the Premises are destroyed or rendered unusable or inaccessible for commercial purposes by a risk insured under a special form property coverage policy including vandalism and malicious mischief endorsements. ix. Reserved. (e) Endorsements. Each applicable insurance policy shall be endorsed per the following: L The City, its elected or appointed officers, officials, employees, agents and volunteers, and the State of California, its elected or appointed officers, officials, employees, agents and volunteers, are to be covered as additional insureds, with respect to liability arising out of work performed by or on behalf of the Tenant. (Note: This endorsement applies to the General Liability and Automobile Liability policies only.) ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Tenant's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. (Note: This endorsement applies to the General Liability policy only.) iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (Note: This endorsement applies to the General Liability and Automobile Liability policies only.) iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. (Note: This endorsement applies to the Workers' Compensation, General Liability and Automobile policies only.) V. Reserved. vi. Should the policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. (f) Timely Notice of Claims. Tenant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Tenant's performance under this Agreement. (g) Additional Insurance. Tenant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Exhibit "F" Memorandum of Lease RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code Sec. 6103] MEMORANDUM OF LEASE AGREEMENT WITH OPTIONS FOR RENEWAL This MEMORANDUM OF LEASE Agreement With Options for Renewal ("Memorandum") is dated a— LPT -Zz , 20_1_L, and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City') and Credit Union of Southern California ("Tenant"), a California corporation, concerning the Premises described in Exhibit 'A," attached hereto and by this reference made a part hereof. The term of the Lease is five (5) years, commencing SEP j ZZ , 2015, and ending pT 22, , 2020. Tenant and City may extend the Term of this Agreement for two (2) additional successive terms of five (5) years each. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: //S By:�'A� Aaron C. Harp City Attorney Vol ATTEST: 1��t Date: By: l " T , Leilani I. Brown City ClerH CITY OF NEWPORT BEACH, a California municipal corporation Date: Vp.L'1f1; By: Davi City Manager TENANT: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corporation ` j Date: ) 6 I I 7Z I �i By: Dave Gunderson President/CEO Peter PutnA Chief Finadcibl Officer [NOTE: Attach Exhibit A from Agreement as Exhibit to this Memorandum behind attached Notary form] ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE ) On 0 -Ip hpr 601 2015 before me, -Jcr- m A r-4- , Notary Public, personally appeared pa, :�avzrcd r�rx9c who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity(ies), and that by his signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. �.. +1 011_ r �— -- JUSTIN ART Commission # 2058381 Notary Public - California = Orange County (seal) M Comm. Ex fres Feb 11, 2010IP + ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE ) On Qr fybe' fh 7 015 before me, s' ,rj /4,r -j' Notary Public, personally appeared ,qpr firi i nasv, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ------------------ JUSTIN ART Commission N 2058381 ->, (seal) _ =. Notary Public - California = ,,Signature Z Orange County M Comm. Ex fres Feb 17, 2018' CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of 0R)kgf �L ) On CCT lc t Zit I S before me, : k~�kTErZ Ate} ,3 )WQTA(2 t Vfuj�c le Date Here Insert Name and Title of the Officer personally appeared C -t v c 1C\1'r Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)- is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies); and that by his/her/their-signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. JENNIFER ANN MULVEy a : _ Commission M 2045022 Notary public -California a: Orange County Comm. Expires Oct 12, 2017' Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my 11jand and official seal. Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: 0 Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: LSV 4�✓SVSVK✓4<✓K✓K✓SC✓SL✓,4<✓•'✓4�✓4(✓K✓✓SG�!n`•:4�✓L�i✓1�<'.-/�'. �{SSV 4�;�4�4(✓SC✓4<✓SC✓4<✓4�✓4(✓SC%2<v4\`•54�✓4<✓4<✓S�,SV4\✓2(%4\ EXHIBIT "A" Depiction of Premises Moil e7rx A le fA JR r1� � �yZ Ft 1 bWIN � �`PON asty,, 0-92 _ifrUl /.fie iyrmm , '• f � Vtd^�.' U S I$+� 1 �-1� i's .ya! ei� � �_ c it T �F X .+ i 7 41aV.t ti tr "i;� \s ♦ j v.v--w`�`,iLLl ,-'t,K -a.� x:: \�. �i yv9 * i .� 0.•✓ '' � . t 1 .p)iiy `ww M +ai'• �+, e�"i F �. s av Y-'l,t'k q- ! 7&�7 r py— K ti°Py'1 �Y ai f R9p` 431! 'D .� `. Y, 0"x„'3: `�_ -''a �`•'d s. � _' �•-:w '�..:s}:� . - . - . . " ' ;.moi _Cs'';`ti •�. rot. � . IY " �s�. . / ,,y—. ,�� r / /�, h y�,+ i• �a` � / ��-�. F � �� ' fir 1 � rr � / ^1�iV\l� '/ y •• I �Y f 1 / 4 ? 4:'. /'/'�% f .- �' "� ^gyp♦ � L �t /r'�r � JY,?/ , � � r��l �! �,... f a� .fin / � ♦. 2�/� �, '. c i ' n�r '�'#�i i :S E, :�. .'. 5 illi • r. � `9 ,, u,�.* t • ♦ �-i 4 (`.\ 11/!%/ I'• •I• t 45) 'f ' I t I Fi I v f 9' F LL } { I ILI II ' \\ L . Credit Union Premises. -! J