Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Civic Center Drive, 100 (New City Hall)
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,-. 't ,on'� `[Wl P.T. ..r.� �? y} t _ ' a'+ff ! yz• ti * �'y .� kr it s , a . ? :ai r Sk ;' } 'tib. ``:. 114 � < r'• j dLc CL � , d a � - L � �'�r .. +X6ar k^i -� "'ae�1: 1 �a,5, a; .. � 1ga, �,- Z 3 - + y� ,g, J v _ '> �•'.'` .� �. L � t "� y + -...Y'`- ,a`1;r�i�✓.� s ?.,. 'r 4 A a `. '<;PS� t �i.�, � ..,X j,• p. r R. � e � !�4J ie�:� e-' 3•.t,y'r 4"rt �l a! -n c 'r... � ., �� P.! � o� 1 .: R,,, '� e. - F.. 4 jr t, -I • ( L M ` 1 Fr _ I` r3 3 F{ �. �i r, i � y �.� �����7♦'moi w�� .,,s ; " n j4�'v i .1 .F Ta �� 9,•.� 7 '. � �' IN v +%.• 44 � ,t � of a t4 'i 1; : � ° a : � � Ca"7 r r ^" . �' , R dt - � s�.. � ,,Fdr �i�f'tt1.. :_ rb,F lk `' ' t� j � fes' ♦C[r $. . Yz - �' ^ti• i ty°ty-�yy.��.. J, ,. -r 'y. .. � t .r r � `• ,+7��s{1 i1 ;�f� ,�,`r.1 U+ y �.,� , j�1' y• :L1' p r y s d re- s,� ca '.' - _ �'�;'�`` � s a k,i r.;: "��. � �-'..- ,e, � �a-� t °}°� t � �. �� t� ,'lam •„� , ' t.... r�.r� j„t. ;+. 1 \fix+�r •, �� 1 +wsC. ra it �ji.� t. rra *�`' y"A.'},yy" ! :+�Y•�*� .r. �T.\_� 'M' I+. t,r Y.Y y..\ � �GY �� '���A �Z'� r2'~� vG '��.:ri t i'4 ¢; � r1 � t� � ♦ r ! r r 'T �X'� /-�y � .'�••�,,.,�, r^S �„ h�• $' fif a�a,�� .t��i�� ♦. 'rte P 1 �� # �irt,�i �Aa. :: ' � � ,� A c ':��-t•.y�E'�--rMt y, "y � �"�y��'a �:✓.! d W-r r � a.r `tit ,�1+. w � ..� a•... , x . g .. 4, r4;� f .�`® '° f 1 rxy, y `Ry.' yl� ♦ �.lt� ��i�•r•'`' ei'.;1cas fir. y: -w .. 3 s ii•�� i +Yr P y ,� a.. '�•^�',. j.,,, �, .• ,� '•. � y � r� � .. � r t L �,�" � s: �� r a -• + Yq. r . 7 � Tx a raa,4 ?, . +,4,°5$ est` rr y, am Y `�'�yi +: %#iSk•r. fY s :.r Na;. 1,r t x'a''r k {t t J r `• otr t n ! I. a •+' afy 1 r 71,.'17., 1,,..r ,.] r.• r r r �, a, r'�rsat to �a}-' � s �$/::!- v� E y •'�S �, �. K ��`c.-skvgrr 4 � f':�a ii }t V � � ^� . i c£d p a !A•G'§. r i •,f t sK ,., a, a+ i tY l .'0 • AIt, ✓ � �� � �. rr' r `... 1 ¢fit (� .. y � .�, �'`�.�.. � f �tA� e � �° a�[ r k r `t � r . f•tv" ,st.l a b� •r � �t 1 � y yY :•d "�'�''v�' rrrs ra..i � y).. r, -t- ! /a���"*/sS �` .v." *y '''➢ / of,°f$� �'c Z"'� -P n, alb �r ;° a., x9vr }� t..i: ]'S t.,` 1` Z r +'r $,.a �' z.. .� °� �,�4~ i ,•lr p;' rh"' t.l+� �r y S, 1 `-1:. • t, /.. '4 x'LC _.f � ,iar�y� .:' � ,at --. � �i '..'�°�' 3 r��F. ��� 4 � i�r � t��t P k: ' >y ',• i ra •+a"f' rt�b y,<r * � SYS °`�aw�' �, 'a'.,,' 'meati '. i .,, - ;14.. '^ ` r s ,r ; "v- .. r � '' � !F "� v �. '� L c%� i Z yt, ��5'� y ��,j�} "`� `> 4+",,� .y • ��i'` �t3. . ��tP ~� • "� ,,,� �� '+�. k ` gS,x4c; ,PI'��ff i r ..� sY' rr� t ��,'',,, 'i � �� 'y�'�»yr $r r. C t,,,A x ...=�'"�ayg - ,yert 3' {'.. 3 �v�J f'r! �y, . �S'r' 1, •,p ,, tw p 3• r:. (P 9 f t�r 7( e•.srr., c `-,, t cry+••; 4; i tin; .� �i r� f.n � J- _�,: * ..r L 5 �., ti `e;l `} r r a 3.+p... &�1 1 � F^•+o '' S sem. ..r a. .y. �b a'X' tr-'., f',- M �y4+�sja#y1., i.�f 11 1 w r r Z � , • a �L+. eu z ;m �' a efr � '1 C �_ t .v �� . t x ,c^'r- e K P •. a;3. 1 1 .4 k - ':i Z .r ` "I A .., . t I r - ��� t• � w ro 5,-, i;e ®K_ r" +s:'�i . �b x�3 `�. � r� �`@ 'S5^\� �1 ,K�ee.t'r� ✓yL L; 8 r �i Fi e a y a .b'� Yf' y q, 5(4��y1-'[ .tin y4 �a-• �rP�. trw ', �. r rf 'rgr'�Ereee .¢ 7 ,F �� • '.s G� ]`=a. �4`ia .�! �`e'rp *•ii 3 � `y{y'�r 'Pc• r' .�•cr` !"a' A �a �i f � r�eti ! 1 - ..r •� � N Q.,'S'y4, �y � �• c` ✓ ;.aar! l y b' -.fs'i � i m y� t . `... 'dfiaU` ,ty T,�` �i r ;c4 � r _ Yrr ra T 'a L # ia-2-. �r�s" -i 9 ..��.,, .r°A.•�,'�a y T • ..`I --i'� �r` r r #-,.c `�'� T +4'` as a ° F a � "�.t.� ,,, :`+ � 4..a+e,®� wY� `"' y. n � ,,i " ,> o- • �`' - r Pf` ti+, -.,a y.z � r tit ♦ ♦'tr `� r ti. � :.... 4 �....- �>� 'r:1;,,r•,c3"'ty'•. 'i"•.r V�,9-.ry -'tiP. �'�'6'1$. ti'•c3 a �s 1 s�,� ? �t� r• s �m�x �t=.rYr1 c+•g� �� _.. � \a,;, c 'too � . r�w'��Y'�",r'•q� � ,��� y� .r �.'�'. 3! �.. tel`♦h 'y v..�� '� Z„ 4 'y}�:~�'«? `� �?q1t , 7-'..}''•o.•. rte., . '�> i '-S. ^^tc x„ iP��l�P,Ix�"' '� ,d'+•.!4,AiY'.da ,,. s, � F Er May���q '00 t vilat<a�,r..,P' t�S ,: �.,•a'4i aRi� �^B. J,yt��,..gj <$` , :. .,�•.•t�',F��r..�t�y,.,�i ��",.M13a'}p'� 1r�PJ a.,. ,.• a,•�. � � r .m�% y;..' 9� �+aJX�S! � � �$�6 i'•'y� i4s. S,k ' fid' :< 't •r-,`.-� d . 4,� y.+�,{[,�y i G t" S'6 i. 'P•'r .^{r� - .-�'•: T 'z4'd`:�btiaa'i4.8�-.i ... xiaiY'Wt'�Yl� 3 _. -3F _.. _ai.. aa'•'a}�� ;sCere'uc�� �' �s4:��°r ; n'1. ^. i ., _ a' y.�'+2? d Y 9. _t n a�t' ...a w I f L$ t t � '�, rLy (*� t� els _� � •'''�.�- ���`� rc, t a \ r MOW •`41 w . ®rte - — -- i-, try -s. r •�^ yf k/ f ;��{A'`:� . � ,/�{ff : ' f � � ` r �>r � • , � a � ,,cg - _ i .' IIF "• � t ..,T,r F _ ter,' - �, l j � J _ o,. � e , * .. • - .,. .4 ® � � „TJ.� y y t<r. f *'i '4 • p �{ ,•+�F� �R, � �Jl. 'L'� ® ^ 1\.. d 1 /y ti t - r s4 _ .y.. ..�.a . _ ate'_ ` _ .,�_4 es t.t ,';G w�- ' -t�� *E.. � � ;'has .._ ~ _ - ..:.ry •,t.> . t z'3tit •� �� � h i :I'f" +t •Rpt l�`�� l� ' � ! •: r" �{�l� l� � �: C /�'�J �Lr` - � r;�,� may- p ,•Ft ... i �... i f J f ' J Ij j • / 17 f �,l�'1T � yy ' t� '�ifr �•• �a �t%_ y Af 4r ' , >r ,P � r .r �/�rs�``t. n � J. / fq r �,' _ ♦ r 'fir � _ x ,y.P�' Exhibit A-41' VJ ......... .. --A ICredit Union Premises I-�. •=�\�\\\ A. 13 H . EMI (D Fx fF ....... . . . . . ......... . . .... ... ......... --- -- ...... .......... ME --------- INNEM... - 13 ... ..... 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 CTY OF F NEWPORT BEACH City Council Staff Report September 22, 2015 Agenda Item No. 9 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director — (949) 644-3226, kbrandt@newportbeachca.gov PREPARED BY: Lauren Whitlinger, Real Property Admin istrator/Seimone Jurjis, Asst. CDD Director, CBO PHONE: 949-644-3236 TITLE: Lease Agreement between the City of Newport Beach and Credit Union of Southern California, Authorizing the Lease of Retail Space in the Central Library at the Civic Center Located at 1000 Avocado Avenue ABSTRACT: The City of Newport Beach (City) issued a request for proposals (RFP) for a financial institution or banking tenant to occupy the retail space in the newly expanded Central Library in November 2012. After a thorough review and selection process, staff is recommending approval of a lease agreement with Credit Union of Southern California to operate a credit union branch in the vacant retail space at the library. RECOMMENDATION: a) Find that the execution of the Lease Agreement is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines; and b) Approve and authorize the Mayor and City Clerk to execute a five-year lease agreement with Credit Union of Southern California, in substantially the same form as the attachment to the staff report. FUNDING REQUIREMENTS: The credit union will generate a base rent of $21,000 in the first year, with subsequent annual rent adjustments of three percent, as stipulated in the lease agreement. Revenue for the retail space will be deposited to the General Fund. DISCUSSION: Retail Space The City's Civic Center includes a 579 square -foot retail space, which is located on the second floor of the Central Library across from the popular Bistro 24 Express cafe (Attachment CC 2). The retail space includes two rooms; the front office has teller counters and cabinets, which can be secured with a 9-1 roll -down security gate, and the back office has cabinetry and space for an automatic teller machine Selection Process In November 2012, the City published RFP No. 13-18 soliciting proposals for an operator for the retail space. The City received one proposal from the Newport Beach Employees Federal Credit Union (NBEFCU), but they ultimately decided against leasing the space. Staff continued to advertise the space seeking market -rate tenants. Offers to lease the space were received from a preschool, tutoring center, religious reading room, travel agency, and credit union. The City received an offer to lease the space from Credit Union of Southern California (CU SoCal) in February 2015. CU SoCal recently merged with the NBEFCU. Membership to CU SoCal is available to anyone that lives, works, worships, or goes to school in Orange, Los Angeles, and San Bernardino Counties; family members of CU SoCal members are also eligible to join. Therefore, Newport Beach residents are eligible to join CU SoCal and participate in their programs. In evaluating CU SoCal's proposal, staff considered the tenant's experience, their proposed operations, scope of financial service offerings, and the proposed deal points. Library Services Director Tim Netherton presented the CU SoCal proposal to the Board of Library Trustees (Library Trustees) at their June 15, 2015 meeting, and the Library Trustees voted to recommend to City Council that the retail space be leased to CU SoCal (Attachments CC3 and CC 4). Tenant Background Chartered in 1954, CU SoCal has over $900 million in assets, 15 branch locations, and account access at more than 30,000 no -surcharge ATMs. CU SoCal offers a full range of financial products: home and auto loans, commercial loans, no -fee Visa loans, no -fee checking, and certificates of deposits, money market accounts, and financial planning services (Attachment CC 5). Approximately, 75 percent of incoming calls are answered within one minute by a live person. With a five-star rating, the highest score available from Bauer Financial (an independent bank research firm), CU SoCal is considered a safe, financially sound credit union that operates well above federal regulatory capital requirements. City Council Policy F-7, Income Property Pursuant to City Council Policy F-7, Income Property (Attachment CC 6), the City conducted an open bid process to select a tenant to operate the retail space. A review of recent appraisals, recent City approved agreements, and comparable market data for similar properties was conducted to determine the fair market value rent for the Agreement. Proposed Agreement The proposed terms of the Lease Agreement are summarized below: 1. The term of the agreement will be for five years with two five-year extension options, unless terminated as provided by the agreement. 2. Base rent shall be set at $3 per square foot, or $21,000 per year. The base rent shall adjust annually upon the effective date by three percent per year. 3. Hours of operation shall be Monday through Friday between 9 a.m. and 6 p.m., and Saturday between 9 a.m. and 1 p.m., with closures allowed on all City observed holidays and nationally recognized bank holidays. 4. Tenant to comply with the Special Land Use Restrictions (Attachment CC 7) agreed upon by the City and The Irvine Company for the Civic Center property as they pertain to the operation and marketing of the retail space. The City Manager will consult with The Irvine Company prior to executing the Agreement to ensure compliance with the restrictions. WA 5. Tenant is responsible for all interior non-structural improvements to the lease premises, including installation of fixtures, furniture, and equipment, subject to City review and approval of all plans, and approval of all necessary permits. 6. Tenant is responsible for operations, maintenance, and repair of the lease premises, at its sole cost and without expense to the City. 7. Insurance and indemnity provisions are consistent with current standards; all other lease terms are consistent with the City's standard terms. This agreement has been reviewed by the City Attorney's office and has been approved as to form. Contract Summary Proposed Vendor Name Credit Union of Southern California Term 5 Years, two 5 -Year options Escalation Clause 3% per year Revenue/Year $21,000 Cost/Year $0 Cost/Contract Term (est) Selection Process $0 Sole Source or RFP/RFQ RFP Method (QBS vs. Low Bid) QBS # of Respondents 5 # of Qualified Respondents 5 ENVIRONMENTAL REVIEW: The recommended actions are not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment CC 1 - Lease Attachment CC 2 - Maps Attachment CC 3 - Library Trustees Staff Report - June 15. 2015 Attachment CC 4 - Library Trustees Approved Meeting Minutes - June 15, 2015 Attachment CC 5 - Credit Union of So Cal Brochure Attachment CC 6 - City Council Policy F-7 Income Property Attachment CC 7 - Special Land Use Restrictions Agreement Npi ATTACHMENT CC 1 Civic Center Lease Agreement Between the City of Newport Beach And Credit Union of Southern California This Civic Center Lease Agreement ("Agreement") is made and entered into as of the 22nd day of September, 2015 ("Effective Date"), by and between the City of Newport Beach ("City"), a California municipal corporation and charter city, and Credit Union of 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"). ME 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. 9-5 (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. 6) Provision - any term, covenant, condition, or clause in this Agreement that defines, establishes, or limits the performance required or permitted by either party. (k) Rent - includes Base Rent, taxes, and other similar charges payable by Tenant under the provisions of this Agreement. (1) Rent Commencement - date Tenant begins paying Rent, commencing thirty (30) calendar days after the Delivery Date or first day Tenant is open for business from the Premises, whichever occurs first. (m) Successor - assignee, transferee, personal representative, heir, or other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to the rights or obligations of either Party. (n) Termination - the termination of this Agreement, for any reason, prior to Expiration. 1.2 Other Definitions. - The following additional terms are defined in the following sections of this Agreement: (a) Base Rent §4.1 (b) Claim or Claims §10.1 (c) Hazardous Materials §16 (d) Indemnified Parties §6.3 (e) Option Term(s) §3.2 (f) Project Recitals, §A (g) Premises Recitals, §A 2. PREMISES City finds it to be in the public interest and consistent with public facility uses to grant an exclusive right to operate a financial institution at the Premises. Therefore, pursuant to the terms and conditions set forth herein, City hereby grants to Tenant the exclusive right and privilege to conduct a business at the Premises engaged in operating a full service Credit Union described in Section 5.1, Business Purposes. Tenant agrees to accept the Premises in an "as is" condition as tendered by City. Tenant agrees that no representations with respect to the condition or improvements of the Premises have been made by City except as specifically set forth in this Agreement. 3. TERM 3.1 Term of Agreement. The Term of this Agreement shall be five (5) years from the Effective Date unless terminated sooner as provided in Section 15, or extended as provided in Section 3.2. 3.2 Option to Extend. Provided Tenant is not then in default, and upon approval of the City, Tenant and City may extend the term of this Agreement for two (2) additional successive terms of five (5) years (the "Option Term" or "Option Terms") the first commencing on Expiration of the initial Term and the second commencing on Expiration of the first Option Term, on the same terms and conditions as contained in this Agreement. Tenant must exercise the option by giving City written notice of its intention to do so at least six (6) months prior to Expiration of the initial Term or the first Option Term. 3.3 Hold Over. Should Tenant, with City's consent, hold over and continue in possession of the Premises after Expiration of the Term or any Option Term, Tenant's continued occupancy of the Premises shall be considered a month-to-month tenancy subject to all the terms and conditions of this Agreement, except the provisions of Sections 3.1 and 3.2. 4. RENT 4.1 Base Rent. Tenant shall commence payment of Base Rent upon the Rent Commencement Date, which shall be no later than thirty (30) calendar days after the Delivery Date. The Base Rent shall be established at the fair market value rate of Twenty -One Thousand and 00/100 Dollars ($21,000.00) per year. Base Rent shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., One Thousand Seven Hundred Fifty and 00/100 Dollars ($1,750.00) per month). Base Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term. Annually, upon each successive anniversary date of the Effective Date, the Base Rent shall be increased three percent (3%). 4.2 Reserved. 4.3 Payment Location. Rent shall be payable at the office of the City's Revenue Division at 100 Civic Center Drive, Newport Beach, California, or at such other place or places as City may from time to time designate by written notice delivered to Tenant; or by electronic delivery if mutually agreed upon by City and Tenant. 4.4 Late Payment. Tenant hereby acknowledges that the late payment of Rent or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Tenant not paid within five (5) days of its due date shall be subject to a ten percent (10%) late charge. City and Tenant agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Tenant. 4.5 Interest on Unpaid Sums. Unpaid sums due to either City or Tenant under this Agreement shall bear interest at the rate of ten percent (10%) per annum on the IM 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 Friday from 9:00 a.m. to 6:00 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 9-10 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 9-11 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. 9-12 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 9-13 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. 9-14 8.5 Liens. Tenant shall keep the Premises free from any liens arising out of any work performed, material furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. 8.6 Disposition of Alterations at Expiration or Agreement Termination. Any Alterations made to the Premises shall remain on, and be surrendered with, the Premises on Expiration or Termination of this Agreement (excluding Tenant's fixtures, equipment, furniture, and moveable decorations). However, City may elect not less than one hundred eighty (180) calendar days prior to Expiration or Termination of this Agreement, to require Tenant to remove any Alterations that Tenant has made to the Premises. If City requires removal of Alterations, Tenant shall, at its cost, remove the Alterations and restore the Premises to a broom -clean condition before the last day of the Term. Prior to Expiration or within fifteen (15) calendar days after Termination of this Agreement, Tenant may remove any moveable partitions, machinery, equipment, furniture, and trade fixtures previously installed by Tenant, provided that Tenant repairs any damage to the Premises caused by removal. 9. MAINTENANCE OF PREMISES 9.1 Maintenance and Repair by Tenant and City. Tenant agrees that it will keep the Premises in Good Condition. Additionally, Tenant shall be responsible for clearing away trash, and debris if advertising materials are distributed from the Premises, from the floors and tables located in the entry atrium and on the patio where customers will likely congregate. City may perform Maintenance or repairs in the event Tenant fails to commence required Maintenance or repairs within the time provided by City in the notice requesting such Maintenance or repair. The cost of any Maintenance or repairs by the City pursuant to this Section shall be payable as additional Rent. All furnishings, equipment, facilities, improvements, Alterations, attachments and appurtenances provided by City or installed by Tenant, and required for operations, 9-15 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 s -n provide, at a minimum, those items described in Exhibit "E" attached hereto and incorporated herein by this reference. 12. DAMAGE OR DESTRUCTION OF PROJECT/PREMISES 12.1 Destruction of Premises. If the Premises are totally or partially destroyed, rendering the Premises or any portion thereof totally or partially inaccessible or unusable, Tenant shall restore the Premises to substantially the same condition as immediately prior to such destruction (including all trade fixtures, personal property, improvements and Alterations as are installed by Tenant, which shall be replaced by Tenant at its expense). Tenant may elect to terminate this Agreement by giving notice of such election to City within sixty (60) calendar days after the date of the occurrence of any casualty if the cost of the restoration exceeds the amount of any available insurance proceeds, or if Tenant reasonably estimates that repairs of the Premises will take more than six (6) months. Upon such termination, insurance proceeds applicable to reconstruction of the Project (excluding Tenant's personal property therein) shall be paid to City and Tenant shall have no further liability or obligations under this Agreement. 12.2 Replacement of Tenant's Property. In the event of damage or destruction of improvements located on the Premises not giving rise to Tenant's option to terminate this Agreement, Tenant shall, at its own expense, replace and repair all Tenant's trade fixtures, equipment, machinery, furnishings, furniture and inventory as soon as reasonably possible to permit the prompt continuation of Tenant's business at the Premises. 12.3 Destruction of Project. In the event that all or a portion of the Project is damaged, and the Premises or a material portion becomes inaccessible or commercially unusable, and the damage or destruction cannot reasonably be repaired MW 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 0081 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. 9-21 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 9-22 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; 9-23 (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 9-24 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 9-25 remediation materially affects Tenant's ability to conduct its business in the Premises. "Hazardous Materials" shall mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous substances", "hazardous wastes", "hazardous materials' or "toxic substances" under applicable federal, state and local laws, ordinances and regulations. 18. CITY'S DEFAULTS/TENANT'S REMEDIES. City shall be in default if it fails to perform, or commence performance if the obligation requires more than ten (10) calendar days to complete, any material obligation within ten (10) calendar days after receipt of written notice by Tenant to City specifying the nature of such default. City shall also be in default if it commences performance within ten (10) calendar days but fails to diligently complete performance. In the event of City's default, Tenant may: (a) Upon five (5) calendar days written notice to City, cure any such default, and City shall reimburse Tenant the amount of all costs and expenses incurred by Tenant in curing the default, together with interest and expenses at the maximum rate then allowed by law; or (b) Terminate this Agreement if City's default materially interferes with Tenant's use of the Premises for its intended purpose and City fails to cure such default within ten (10) calendar days after a second written demand by Tenant in which case Tenant shall have no further or continuing obligations. 19. EVENT OF BANKRUPTCY. (a) If this Agreement is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. or any similar or successor statute ("Bankruptcy Code'), any and all monies or other consideration 9-2s 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 9-27 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 POOR 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. 9-2s 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 RMA 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. 9-31 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] 9-32 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: 9 I } I By: I �e Aaron C. Harp q City Attorney ATTEST: Date: 0 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: David Kiff City Manager TENANT: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corporation Date: By: Dave Gunderson President/CEO By: Peter Putnam Chief Financial 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] 1801R] EXHIBIT "A" Depiction of Premises L•E IMMB tral Libra Exhibit A-2 Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to �e�'noRr any results obtained in its use. ° p ° 0 417 833 Imagery: 2009-2013 photos provided by Eagle u > - Feet Imaging www.eagleaerial.com Cy./G01M1 nT � 9-36 Exhibit A-3 }z Library Expansion - .� Central Library � �QCJ r 'tky v A9 y ��pp^M1S '34'lj'Ytf%k b �f .G Ip� � 5i/ . � s EO -1' � �r��,✓ ¢, S #' �i Y r7 ijI ��H�i ., e } � /� ' Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to 2gwvoRr any results obtained in its use. 0 100 200 Imagery: 2009-2013 photos provided by Eagle r - Imaging ww•.v.eagleaerial.com Feet arsrzo}s 9-37 I 9-38 EXHIBIT "B" Loading Zone, Common Areas, Restrooms 9-39 Exhibit B III Ila soM! j . . . ... ..... . L a III Ila soM! j . L a O -U 11001, III Ila soM! j . a O -U ca III Ila soM! j . ca CD III Ila soM! j . Mmelfw tl Tenant Equipment List 'Equipment- rQuantity 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 9-41 Exhibit "D" See attached special use restrictions document. 9-42 92®304T57 89 ; i^ �BSon Sacordod Hall To: FowA R#7111 Mas TBR IAVIH6 COMPANY 550 Newport Cantor Drive 8:0DMr MAY 8 FL O11ior Bayport Boacb, CA 92660 All.WCW n°W f 0-aw Carbr, Cwwrlw D.r.T. s .p Q ,�� au,B t AttootLo: Ine Milligan�+- SlAF 6 flDE-6 n .CE Space above Chia liar for Recordar'a me DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE n u 60p0 1 D� 9 0 9-43 s • TABLE OF CONTENTS DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RICER' OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE ARTICLE 1. GENERAL PROVISIONS. . . . . . . . . . . . 1 1.1 Grantee's Repreaentationt and Varrantiea. . . . . . . . 1 1.2 Statement of Declarant's Central Purposes. . . . . . . . 2 1.3 Definitions. . . . . . . . . . . . 2 (e.) 'Benefitted Property` . . . . . . . . . . . . . . 2 (b) 'Center' . . . . . . . . . . . . . . . . . . . 2 (c) 'Declarant• . . . . . . . . . . . . . . . . . . . 2 (d) `Effective Date° . . . . . . . . . . . . . . . . . 2 (e) -Final Map' . . . . . . . . . . . . . . . . . . . 2 (f) -Grantee* . . . . . . . . . . . . . 2 (g) The `Grose Floor Arca• . . . . . . . . . . . . . . 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 Ioprovementa. 4 (f) Landscaping. . . . . . . . 4 (g) Alterations and Additions . . . . . . . . . . . . . 4 2.2 Declarant's Approvals. . . . . . . . . . . . . . . . 4 (a) Approvals Required . . . . . . . . . . . . . . . . 4 (b) Tine for Approvals. . . . . . . . . . . . . . . 4 (c) As Built Plans . . . . . . . . . . . . . . . . . . 5 2.3 Grantee's Cost. . . . . . . . . . . . . . . 5 2.4 Fulfillment of Hap 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 Subordimucion or Consent Co Transfer for Public Financing . . . . . . . . . . . . . . . . . . . . . . 6 (a) Copy of Loan Documents . . . . . . . . . . . . . . 7 (b) Title Report. . . . . . . . . . . . . . 7 (c) Disbursement Inauv tions . . . . . . . . . . . . . 7 (d) Request for Notice of Default. . . . . . . . . . . 7 2.9 Costs of Regional Development. . . . . . . . . . 7 2.10 MacArthur Boulevard Dedication and Maintenance. . . . . 7 ARTICLE 3. GENERAL RESTRICTIONS. . . . . . . . . . . . . . . . . 8 3.1 Unapproved Development of Use . . . . . . . . . . . . . . 8 3.2 General Mint ananc.. . . . . . . . . . . . . . . . . . . 8 3.3 Resterat Lon . . . . . . . . . . . . . . . . . . . . . . 8 3.4 Drainage. . . . . . . . . . . . . . . . . . . . . . . 8 3.5 Signs. . . . . . . . . . . . . . . . . . . . . . 8 3.6 Prohibited Operations anti Uses. . . . . . . . . . . . . 8 3.7 No SubdLv Lsion. . . . . . . . . . . . . . . . . . . . . 9 3.8 Zoning . . . . . . . . . . . . . . . . . . . . . . . . . 9 3.9 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE 4. DECLARANT'S RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . 10 ARTICLE 5. REMEDIES. . . . . . . . . . . . . . . . . 11 5.1 Default and Ceneral Ramedle .. . . . . . . . . . . . . . 11 (a) Donegan . . . . . . . . . . . . . . . . . . . . 11 (b) Equity . . . . . . . . . . . . . . . . . . . . . . 11 5.2 Inspection. . . . . . . . . . . . . . . 11 5.3 OptLon Co Repurchase the Land . . . . . . . . . . . . . . 11 (a) Grant of Option. . . . . . . . . . . . 11 (b) Exercise of Repurchase Option. . . . . . . . . . . 12 (c) Expiration and Quitclaim. . . . . . . . . . . . . 12 WE 9 (d) Repurcbaso Price . . . . . . . . . . . . . . . . . e (e) Rapurchese Escrow Torras . . . . . . . . . . . . . . 9 I1 12 13 13 13 14 14 15 15 15 15 15 16 16 16 16 16 16 16 16 16 17 17 17 17 17 17 17 ki 9-45 (d) Repurcbaso Price . . . . . . . . . . . . . . . . . (e) Rapurchese Escrow Torras . . . . . . . . . . . . . . (£) Irrevocability. . . . . . . . . . . . . . . . (g) Warrantien, Plans and Specifications. 5.4 Arbitration Procedure . . . . . . . . . . . . . . . . . . 5.5 Waiver. . . . . . . . . . . . . . . . . . . . . 5.6 Coate of Enforcement . . . . . . . . . . . . . . . . . . 5.7 Rights of Lenders . . . . . . . . . . . . . . . . . . . . 5.8 Advencea. . . . . . . . . . . . . . . . . . . . . . . . ARTICLE 6. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . 6.1 Wmvoidtble Delay . . . . . . . . . . . . . . . . . . . . 6.2 Continuous Operations. . . . . . . . 6.3 Covenants to Run With the Land; Term. . . . . . . . . . (a) Covenants to Run With the Land. . . . . . . . . . (b) Term. . . . . . . . . . . . . . . . . . . 6.4 Assignment by Declarant . . . . . . . . . . . . . . . . . 6.5 Amendments . . . . . . . . . . . . . . . . . . . . . . . 6.6 Release. . . . . . . . . . . . . . . . . . . (a) Release by Declarant . . . . . . . . . . . . . . (b) Not Applicable to Declarant. . . . . . . . . . . . 6.7 Notice. . . . . . . . . . . . . . . . . . . . . . . 6.8 Governing Inv . . . . . . . . . . . . . . . . . . . . . . 6.9 Severability . . . . . . . . . . . . . . . . . . . . . . 6.10 Captious . . . . . . . . . . . . . . . . . . . . . . . . 6.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . 6.12 Candor and Number . . . . . . . . . . . . . . . . . . . . 6.13 Time of the Essence . . . . . . . . . . . . . . . . . . . I1 12 13 13 13 14 14 15 15 15 15 15 16 16 16 16 16 16 16 16 16 17 17 17 17 17 17 17 ki 9-45 YAXE OF EXHIBM Property DoncriptLon.................... 1 Specific pncilitien..................... 2 Subordimtlon Agra a nt................. 3 i11 I D m DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE THIS DECLARATION (`Declaration') is made as of March 11, 1992, by and between THE IRVINE COMPANY, a Michigan corporation ("Declarant'), and the CITY OF NEWPORT BEACH, a California municipal corporation (-Grantee-), with reference to the following facts: A. Grantee and Declarant have entered into an Exchange Agreement and Escrow Instructions (the "Exchange Agreement") by which Grantee is acquiring from Declarane the following described real property (the 'Exchange Land') situated In the City of Newport Beach, County of Orange, State of California: The southwesterly one-half of Parcel 2 as shown on Parcel Map No. 90-361, recorded in Book 270 , Pages 15 to IB , Inclusive. of Parcel Maps, Records of avid 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 Nap No. 90-361, recorded in Book 270, Pages 15 to 18—, inclusive, of Parcel Haps, Records of said County. C. In connection with such acquisltlon, 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 Hap No. 90-361 (tbe "Land") to improve and use the Fond in accordance with the covenants, conditions, rights, restrictions and limitations as particularly set forth herein (collectively referred to as the-Restrictians-), and Declarant is granting the Land to Grantee on the basis of Grantee's continuing compliance with such Restrictions. NOW, THEREFORE, in consideration of the foregoing (including the conveyance of the Land by Declarant to Grantee), and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE 1. CE14ERAL PROVISIONS. 1.1 Grantee's Representations and Warranties, GRANTEE REPRESENTS AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SAME IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND FOR THE PARTICULAR USES AND PURPOSES AUTHORIZED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT: (a) GRANTEE IS EXPERIENCED AND KNDWiEDGFABLE IN THE CONSTRUCTION AND OPERATION OF PUBLIC FACILITIES, AND DECLARANT AND GRANTEE DESIRE TO PROVIDE A PUBLIC LIBRARY TO SERVE NEWPORT BEACH; (b) DECLARANT HAS CONVEYED AND GRANTEE HAS ACCEPTED FEE TITLE TO THE LAND FOR DSE DY GRANTEE IN ACCORDANCE WITH THE PARTICULAR USES PROVIDED FOR IN TRIS DECLARATION; (c) DECLARANT AND GRANTEE DO NOT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PERMITTED HEREIN; (d) THE LIKELIIIOOD 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) WITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOSES AND DLPECTATIONS OF DECLARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE DEFEATED; (f) BUT FOR CONVEYANCE OF THE W1D, GRANTEE WOULD BE REQUIRED TO PAY SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE ESTABLISHED THE FAIR MARKET VALUE OF THE LAND FOR PURPOSES OF THE OPTION TO REPURCHASE BASEL' UPON PRESENT ESTIMATES AND HAVE APPLIED ADJUSTMENT FACTORS TO TAKE INTO ACCOUNT SUBSEQUENT CHANCES IN VALUES; (h) DECLARANT AND GRANTEE ACKNOWLEDGE TJAT MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE GREATER OR LESSER THAN THE VALUE ESTABLISHED FOR PURPOSES OF THE OPTION TO REPURCHASE AND HEREBY ASSUME THAT RISK. ,:srais:Fv p•�., ri =JJ 9-47 i BUT FOR SUCH REPRESENTATIONS BY GR.AMM.. AND GRANTEE'S UNIQUE SKILLS, EXPERTISE AND SUITABILITY IN CONSTRUCTION AND OPERATION OF THE SPECIFIC FACILITIES DESCRIBED BEIAV, DECLARANT WOULD NOT HAVE CONVEYED THE LAND TO GRANTEE, BUT WOULD HAVE RMINFD THE BENEFITS OF OWNERSHIP, INCLUDING FUTURE APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES, DECIARAYT HAS CONVEYED THE LAND TO GRANTEE. 1.2 Statement of Declorsnt's Cenral Purooaes. Declarant is the ower of a large and unique landholding, port of which has been developed as a water planned busineao, recreational, hotel, reaideneirl and retail Center, described below, in the City of Newport Beach (the 'City-). Among the distinguishing characteristics of this masterplanned Canter are the clear delineation of use areas throughout the Center, together with the strict exercise of architectural and occupancy controls over individual construction projeeto, no an to ensure the harmonious growth end development of the Center and the maximization of the value of Declarant's developed and undeveloped landholdings an well an the Land itself. In addition to those general concerns, it is vitally important to Deelarant that the intensity of development shell be limited an 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 nervicing the Center and its environs could be overutilized, resulting In undesirable traffic congestion and imbalances within the Cancer. Such conditions could in turn adversely affect the ability of Declarant to develop, own, operate, lease or sell its landownings, including without limitation the "Benefitted Property" as defined below. It is co promote these purposes that this Declaration is =do, 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 Doflniciens. As used herein, the folloving terms shall have the meanings given to them below: (a) 'Benefitted Property" shall mean the real property to which the benefit of the provisions of this Declaration Inures, and as of the execution of this Declaration shall mean the real property described an EKdIOIT vi 1 attached hereto, Declarant shall have the right by a duly recorded amendment hereto executed solely by Declarant to substitute for or add to the Benefitted I Property any real property owned by Declarant in the County of Orange, California. The Benefitted Property shall be the dominant tenement and the Lend shall be the servient tenement for purposes of this Declaration. (b) "Cancer` shall mean the office, hotel, recreational, - recall and residential and other use area commonly known as Newport Center - (including the shopping center known as Fashion Island) and generally lying within the area enclosed by Pacific Coast Highway, MacArthur Boulevard, San Joaquin Hills Road and Jamboree Road. (e) "Declarant' shall mean The Irvine Company as identified above and its successors, assigns or designees who shall assume the obligation and cc whom The Irvine Company shall speciflcally assign in writing the right to enforce these Rea;rlecions, subject to the provisions of the Section entitled 'Assignment by Declarant." (d) 'Effective Date" of thla Declaration shall be the date this Declaration in recorded in the Official Records of Orange County, Sallfomia. (a) "Final Map' shall mean the final map covering the Land described as Parcel Map No. 90-361 as shown on a map recorded in Book 270 , Pages 15 to la , inclusive, of Parcel Haps, Records of Orange County, California. (f) "Grantee• shall mean the Cranceo identified above and each and every suc:essor, assignee, owner, losses, licensee or other occupant of the Land, the Specific Facilities, an defined below, or any portion thereof or incereat therein, and each of them, during their ownership or occupancy thereof. -M, However. ouch tem shall not include any person having An Interest 1n all or any portion of the land or Specific Facilities merely An security for the perforaianco of an obligation. Without limiting the generality of the foregoing, if Crancoo leases all or Any of iia interest in the land or the Specific Facilities, both the lessor and leasea. under such lease shall be reapom Lbla as principals (and net sureties) for compliance with all the terns aad provisions of thio Declaration. (g) The 'Gross Floor Area- shall man tba aggregate number of square feet of floor apace on all floor levels of any building, including mazzaninea, measured from the interior face of all exterior valla. No deductions or eaclusians shall be made by reason of columns, stairs, elevators, escalatorn, or other Interior construction or equipment. ARTICLE 2. 2.1 Specific Facilities. (a) Imnrovement and Continued Use. Grantee represents and agrees that Grantee shall cause the land to be improved only with the specific facilities described on EXHIBIT 2 attached hereto (the 'Specific Facilities') and the other improvements described on EXHIBIT 2 attached hereto (the 'Other Improvements') and in full accordance with all of the terms of this Declaration, and that Crantee shall cause the Land, the Specific Facilities And the Other Improvements to be used t,olely for a public library with related parking and no other use, notwithstanding that other uses may be permitted under applicable zoning ordiwnces, and in full accordance with all of the terms of this Declaration. Use as a public library may include all uses and activities commonly associated with public libraries now and in the future including any tom of information storage and retrieval such as video tapes, books, optical and magnetic disks or other technologies for information storage and retrieval. Grantee may charge fees, rentals and late charges for loan or use of information media provided that fees, rentals and charges do not exceed the cost of operation of the public library facility. No portion of the Lind, or any improvements thereon, or any portion thereof, shall be uned for retail, commercial, quasi - retail or quasi -commercial facilities that materially compete with the retail end commercial facilities in the Center or otherwise Improved, developed, used, operated or maintained with any facilities or for any purpose whatsoever except as set forth above unless expressly approved by Declarant, which approval may be granted or wichheld by Declarant in its sole discretion. (b) Construction. Grantee shall improve the Land with the construction and installation of the Specific Facilities and the Ocher 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, additlons or changes co the exterior elements of any plans and specifications previously Approved by Declarant, then Grantee shall submit three copies of any Change Order to Decl.rant 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. Conatruction and Installation shall be coavenced and completed within the time periods set forth in the Section below entitled 'Commencement and Completion.' (c) Commencement and Completion. Subject to extensions of tine for unavoidable delays as provided under the provision entitled -Unavoidable/, Delay,' (i) within the time period specified an EXHIBIT 2 as the 'Comsencemenr i Date,' measured from and after the Effective Daae of chis Declaration, Grantee shall have commenced construction of the Specific Facilities on the Und, and (11) within the time specified on EXHIBIT 2 as the 'Completion Date,' measured from and after the Effective Data of this Declaration. Grantee ahall have completed construction of the Specific Fncilitles on the Land In a manner consistent with plans and specifications approved In wrLcing by Declarant pursuant to the Agreement. As used herein, the term 'commenced construction' shall mean the coeplmeion of substantial grading of the Land and tha pouring of all or a substantial portion of all of the footing. and foundations for the entire Specific Facilities (which need nor necessarily Include the ground floor slabs). Grantee shall be deemed to have 'completed conscructlan' of tha Specific Facilities only at such time as Grantee shall have obtained from the appropriate .i a9 U 999p4 1 �v 1 M (g) Alterations and Additions. Grantee shall not make Any substantial additions, alterations or other modifications (*alterations') of or to the exterior of the Specific Facilities or any addit Lons, 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 end procedures set forth in Section 2.2. All such alterations shall be subject to the provisl.ome 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 obllgatlons as a condition to its approval. As used in this Section, tine 'exterior" of the Specific Facilities shall seen all roofs, outside valla and facades, structural foundation. entrance doors, windows, outside walkways, ramps and other accessways, and parking facilities. 2.2 Declarants_ Approvals (a) Approvals Required. Except with respect to plana and specifications approved prior to the ranordacfon of this Declaration, no construction, installation or alteration of the Specific Facilities, the Other Improvesents, or any other landscaping, grading or other improvements in, about or on the Land shall be commenced unless the concept, plans and specifications for the exterior elements of such lmpr.,veucnca have first received the written approval of Declarant exercising its sole 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 Improve'.senta 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 discreclon of Declarant, are in harmony with the plan and design of the Center. (b) Time for Aoorwal e. Declarant shall approve or disapprove any plans and specification. delivered to Declarant pursuant to this Article an soon as possible but no longer than thirty (30) working days after receipt of no copies thereef accompanied by such drawings, site plana, elevation,, arciara' conceptions, aanples of material,, models, mock-ups, and color samples an from time to rime required by Declarant to review such plana and specifications. If 9-50 gover�nntal entity or agency a valid Cartificats of Use and Occupancy for the ' Specific Facilities. Grantee shall commsca and coopluto construction of the Other Improvements prior to or contemporaneously with such Specific Facilities. EM. .V p _ ., -- (d) Gradinr. Prior to rbc coraenceaent of any grafting or , similar work on the Ind, Grantee shall submit co Declarant for its approval two sets of plana and specifications for grading, terracing and filling of the Land �1 D and for construction of other similar Improvements in, on or about the Ind. ed'pp (a) UeLlltieA. Streets and Public Imarwmm�te. B y (i) Grantee shall cause all neceaaary facilities for water, drainage, savage, telephone, electricity, cable televinLon, and other m4 utility service for the Land to be constructed and installed thereon end thereto in the manner and within the tine required by the Exchange Agreement. (ii) In addition to any such facilities constituting a D part of the Specific Facilities or the Other Improvements, Grantee ahall construct and Install or pay for construction and installation of all aereeta, street lights, driveways, curb cuts, entry ways, sidewalks and the like, ®� l perimeter valla and fences, irrigation and drainage systems, landscaping, a —= monument, directional or other signs and all like improvements on the Land or between the Land and adjoining sidewalks or the curbs of adjoining streets, as required by the Exchange Agreement. (f) Lendscsu Lng. In addition to the landscaping constituting j a part of the Other Improvements, if Any, Grantee shall landscape the Land es 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 not make Any substantial additions, alterations or other modifications (*alterations') of or to the exterior of the Specific Facilities or any addit Lons, 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 end procedures set forth in Section 2.2. All such alterations shall be subject to the provisl.ome 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 obllgatlons as a condition to its approval. As used in this Section, tine 'exterior" of the Specific Facilities shall seen all roofs, outside valla and facades, structural foundation. entrance doors, windows, outside walkways, ramps and other accessways, and parking facilities. 2.2 Declarants_ Approvals (a) Approvals Required. Except with respect to plana and specifications approved prior to the ranordacfon of this Declaration, no construction, installation or alteration of the Specific Facilities, the Other Improvesents, or any other landscaping, grading or other improvements in, about or on the Land shall be commenced unless the concept, plans and specifications for the exterior elements of such lmpr.,veucnca have first received the written approval of Declarant exercising its sole 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 Improve'.senta 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 discreclon of Declarant, are in harmony with the plan and design of the Center. (b) Time for Aoorwal e. Declarant shall approve or disapprove any plans and specification. delivered to Declarant pursuant to this Article an soon as possible but no longer than thirty (30) working days after receipt of no copies thereef accompanied by such drawings, site plana, elevation,, arciara' conceptions, aanples of material,, models, mock-ups, and color samples an from time to rime required by Declarant to review such plana and specifications. If 9-50 approved by Declarant, such approval ahmll be andoreod on such plana mad specifications and one set of such doeur-nto bearing Declarant'a approval shall be returned to Grantee within such thirty (30) working day period. If Declarant does net approve such plans and specifications. Dcclarant shall notify Creates of its reasons for not approving such plane and specifications and Grantee chall, within forty five (45) working days after receiving notice of Declarent'n disapproval, submit new plans and specifications for Declarant's approval. .'ailuro of Declarant to approve or disapprove any plana and specifications within said thirty (30) working day period and Declarant'a continued failure to approve or disapprove for five (5) working days after Grantee's written notice to Doclarant that Declarant has felled to approve or disapprove as required herein shall be deemed approval thereof. The approval by Declarant of any plans and specifications pursuant to this Section shall only represent Declaramta' ' satisfaction with the plane and specifications as to their general aesthetic elements. Such approval shall not be deemed to constitute any representation or warranty by Declarant as to the adequacy or sufficiency of such plana and specifications for aratiLtecmral or englneering 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 spec-'flcations, Declarant ossumes no liability or responsibility therefor or Ear any defect in any grading, landscaping, improvements or construction made pursuant thereto. (c) As guilt Plans. Upon completion of the grading, landscaping and construction of improvements, Grantee shall submit to Declarant two -as built' sepias and a Certificate of Compliance executed by Grantee's state licensed consultant (engineer, architect and/or landscape architect). the Certificate of Compliance shall warrant that the completed grading, landscaping and construction conforms to the plans and specifications therefor approved by Declarant. 2.3 Grantee's 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 Nay Conditions. Certain map conditions dated November 21, 1991 (copies of which have been provided to Grantee) have been imposed in connection with the approval and recordation of the Final Map. Except as otherwise agreed in writing by Declaranc and Grantee, Grantee shall comply with and/or fulfill all of those duties and obligations imposed by much map conditions on the 'Applicant' and/or 'Subdivider' attributable to Grantee's use or development of the Land, all at Grantee's sole cost and expense. 2.5 Compliance With Ia-. (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 times with all public laws, ordinances and regulations applicable thereto. Without limiting the generality of the foregoing, Grantee shell obtain, at its Sole expense, all of its internal and external governmental approvals and permits and approvals of other governmental authorities with jurisdiction which may from time to time be required with respect to the performance contemplated under this Declaration, including, as applicable end vl thout limitation, appropriate zoning, building permits, permits from the Califorrla Coastal Commission, operating and business licenses and permits and the lika. In obtaining such approvals and permits, Grantee shall prepare, at Its sole expense, as necessary and without limitation, all environmental impact reports, englneering studies and the like as necessary. (b) Approvals of Applicptionq. All requests or applications, together with all supporting documentation, for governmental approvals or permits which require discretionary action by dlacretlonary 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 govarmeantal agency. Declarant shall have a period of forty five (45) days after receipt to disapprove any requests or applications so submitted by Grancee, and in the event of disapproval shall specify the reasons therefor. Failure Lo disapprove within such forty five (45) 9-51 ` day period and Declarant'- continued failure to approve or disapprove for fifteen (15) days after Grantee`s written notice that Daclarant hat failed to approve or disapprove As required bereunder shall be deemed approval thereof. Grantee shall cavae copies of all written communications betwaen Grantee and other govarmmntal agencies processing such requests or applications to be delivered to Daelarant within five (5) busineae days after such comunlcation has boon delivered to the addressee. 2.6 Bonds. Before the commencement of any of the work required under this Article 2, Grantee shall furnish to Declarant true copies of any and all labor and materiel 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 leen than i twenty-five (25) years after the Effective Data, Grantee shall not Bell, lease, convey, exchange, encumber or otherwise transfer the land or any portion thereof or facilities thereon, whether by agreement for male 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 reaaonably, approve or disapprove such transfer, (LS) exercise its option to repurchase set forth in Section 5.3 below, or (111) exercise its right of first refusal set forth in Article 4 below. Declarant in Its sole discretion may within such sixty (60) day period exercise Any such right. Declarant's failure to so act within such sixty (60) day period shall be deemed to constitute approval of the transfer on the terms and conditions proposed by Grantee. Any time after the twenty fifth (25th) anniversary of the Effective Date, Grantee may transfer the land without Declarant's approval under ch Ls Secclon and wLthouc 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 I 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. Notwlthscanding the foregoing, (i) Grantee may transfer the Land to any other governmental or quasi -governmental entity or agency which has as its primary purpose maintenance and operation of public libraries provided such entity shall be subject to all of the provisions of this Declaration or (ii) provided Grantee complies with the provisions of Section 2.8 below, Declarant shall consent to a transfer or encumbrance on the Land made in connection with an Interim or permanent loan or loans or other form of private or public financing (including without limitation bonds, lease revenue obligations or certificates of participation) (`public obligations') made in good faith and for value by an institutional lender or by a public obligation, the proceeds of which are used only for the costs and expenses of such public obligations and construction of the Specific Facilities and Other Improvements or refinancing of a construction financing in an amount not to exceed the amount outstanding under the construction financing (collectively, 'Permittad Transfers"). :ova 2.8 Subordination or Gon,:enc to Transfer for Pvblic Financine. Subject to the following provisions And the provisions of Section 5.7 hereof, Declarant will either consent to a transfer described in Section 2.7(b) above, without exercise of Declarants right of first refusal contained In Article 4 and the option co repurchase contained in Section 5.3 (collectively, the 'Enforcement Rights-) or Declarent will sub;;rdinate ice Enforcement Rights to any encumbrance referred to in Section 2.7(b) immediately above, (which Section 2.70) -hall continue in effect even after Section 2.7 no longer has any application to chis Declaration, for purposes only of describing the transfers and encumbrances co which Declarent will continue to consent or oubordlnace pursuant to this Declaration) provided that the principal Amount of such a loan or public obligation does not, in combLMcion 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 (90D) of the fair market value of the land and any lmprovemento thereon, valued taking into account the restrictions contained in this Declaration, and Duch loans end/or public obligations are at commercially reasonable interest rates and otha ry Lae contain 9-52 (d) Request for Notice of Default. Unless public obligations are issued whichdo not involve a standard mortgage lien to secure performance Of a note, a copy of a Request for Notice of Default pursuant to Section 2942b of the California Civil Code prepared for execution and acknowledgment by Declarant which, when recorded at Grantee's expense, will entitle Declarant to the notices prescribed by said Section 2942b. If public obligations are issued, then the documentation for such financing shall require delivery of a notice of any default to Declarant prior to exercise of any remedies available upon such default. 2.9 Costs of Regional Development. Grantee understands that development of the Specific Facilities on the Land will be accomplished in conjunction with development of ocher real property in the Center by Declarant other private parties. Grantee hereby agrees to pay its share of infrastructure improvements made on, adjacent and off the situs of the Land. The infrastructure improvements shall include the improvements required to complete the items set forth in MIBIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedication and Maintenance. Doclarant and Cloy 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 ocher improvements for such expansion, Graneee shall not use the area designated for any purpose other than inarallatlon and maintenance of landscaping. Grantee agrees to install landscaping within such area prior co completion of construction of the Specific Facilities pursuant to plans and opaciflcaclone approved by Daclarenc in accordance vich the standards and procedures set forth in Section 2.2 and to maintain such area in a first class condiclon, order and repair at all times prior to co®encement of construction for expansion of MacArthur Boulevard. 9-53 ' comszerclall7 reasonable cora, and conditions. Grancoe will provLdo Doclaranc I with apprainal information from a reputable M.A.I. appralnar, from the Office of the Assessor of Orange County or from an institutional lender reasonably satisfactory to Declarant to verify that the tots). loan -to -value rate does nor . exceed ninaty percent (90%). No foreclosure, trustoe's sale or dead in liou of foreclosure with respect to any such permitted encumbrance or exexciso of any d`b remedy to enforce a public obligation shall be deemed an 'assignment- for 8 1 .'.urposes of Section 2.7, above. Within ten (10) working days after receipt of U the following item, provided the foregoing requirements have been satisfied and provided there is no default under any provision of this Declaration or under any Uother obligation between Declarant and Grantee relating to the land, Declarant shell execute, acknowledge and deliver to Grantee a cubordLnstion instrument in"" IT U _ subatantially the form attached horeto as EXHIBIT 3 or a Consent to tranafor-. pursuant to issuance of a public obligation: V (a) Cosy of Loan Documenra. A true and complete copy of all instruments executed by Grantee evidencing or securing the issuance of a public obligation or loan; anylease, mortgage, deed of trust or other interest or right _ created to enforce payment of any public obligation which affects the Lend must not secure or relate to any obligation or indebtedness not related to improvement og 11 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 ell to the land shall contain any provision making it a default thereunder if the Q I obligor or any other party defaults in any obllgatlon not related to the acquisition or improvemrat of the Land; i -- (b) Title Report. A preliminary title report dated not earlier than fifteen (13) days prior to submitral shoving no title exceptions I other than those in existence at the time Declarant transferred the Land to — Grantee, other utility easements reasonably necessary to serve the Land, and other matters approved by Declarant; ' (c) Disbursement Instructions. A copy of the executed financing instruments, loan agreement or other agreement pertaining to the , disbursement of funds, which must provide in a manner satisfactory to Declarant I 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 (Ln an amount not to exceed the amount outstanding under the acquisition/construction Ii loan refinanced); and (d) Request for Notice of Default. Unless public obligations are issued whichdo not involve a standard mortgage lien to secure performance Of a note, a copy of a Request for Notice of Default pursuant to Section 2942b of the California Civil Code prepared for execution and acknowledgment by Declarant which, when recorded at Grantee's expense, will entitle Declarant to the notices prescribed by said Section 2942b. If public obligations are issued, then the documentation for such financing shall require delivery of a notice of any default to Declarant prior to exercise of any remedies available upon such default. 2.9 Costs of Regional Development. Grantee understands that development of the Specific Facilities on the Land will be accomplished in conjunction with development of ocher real property in the Center by Declarant other private parties. Grantee hereby agrees to pay its share of infrastructure improvements made on, adjacent and off the situs of the Land. The infrastructure improvements shall include the improvements required to complete the items set forth in MIBIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedication and Maintenance. Doclarant and Cloy 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 ocher improvements for such expansion, Graneee shall not use the area designated for any purpose other than inarallatlon and maintenance of landscaping. Grantee agrees to install landscaping within such area prior co completion of construction of the Specific Facilities pursuant to plans and opaciflcaclone approved by Daclarenc in accordance vich the standards and procedures set forth in Section 2.2 and to maintain such area in a first class condiclon, order and repair at all times prior to co®encement of construction for expansion of MacArthur Boulevard. 9-53 3.5 Signs. Grantee shall not place or use any signs, banners, balloons, displays of other advertising media in, on, about or above the land or on or in any improvements constructed or placed thereon unless it has first obtained the prior written consent of Declarant as to the number, size, location, height, illumination, calor and design of such signs or other media. Declarant shall not unreasonably withhold such approval so long as such signs or other media (a) comply with (L) Declarant's sign program for the Land, the property surrounding the land and the Benefitted Property, if any, and (ii) the stetutan, ordinances or regulations of any governmental entity or agency having jurisdiction thereover including Crancee itself and (b) are In harmony and conformity with the existing or proposed improveoents on or In the vicinity of the Land and with Declarant's general aesthetic and architectural plans and criteria for the Land, the Center and the general area in which the Land is located. Except as provided in this Stctiou, no sign, banner, balloon, display nr other advertising media which to 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 Frohibl end Operations end Uses. No trailer, camper, bus, automobile, motorcycle, boat or other vehic Le or equipment ('vehicle') shall be permitted to remain upon the land overnight after 11:15 p.m. or before 5:00 a.m. No use or operation shall be made, conducted or permitted on at with respect to all or any part of the Land or Improvements thereon which in obnoxious to or out of harmony with the residential and/or comsercial neighborhood in the vicinity of the Land. Included mon& the uses or operations which are prohibited and are deemed to conflict with the rasaonobla standards of appearance and maintenance required hereby, are uses or operations which produce or are accompanied by the following characcerlacln. which lint in nor intended to be all inclusive: 9-54 ' ARTICLE 3. GERERAL RESTRICTIONS. 3.1 Umyrroved Devolcunant or Una. Unless exprecoly approved by � Declarant, which approval my be withheld by Declarant in its solo discretion, , ' Grantee shall not permit the construction, maintn[unce, operation or use of any structure or improvements on the Land not in full compliance with all requirements of the lav, this Declaration and any other covenanta, conditions and 0� , :estrLctions from time to time covering the land. 3.2 General Maintenance. Prior to the completion of the Specific Facilities, Grantee shall maintain the Land In a clam, contrary, orderly and , attractive condition, free of weeds, debris and poets. Upon completion of the Specific Facilities an contemplated herein, Grantee shall at all time maintain -. the Specific Facilities, the Other Improvements and all other iaprovementa from B time to time located on the Land. including without limitation the landscaped areae, in first-class condition, order and repair. Grantee shall remove any graffiti on the Improvements, Other Improvements and all other improvar:ento on the Land within three (3) buninasa days after delivery of notice by Declarent. 3.3 Restoration, if any building or improvement on the Land, or any part thereof, or any landscaping installed upon the Land, shall be damaged or e destroyed by fire or other c""Icy. Grantee shall at its cost and erpenae either (f) repair or restore the same according to the original plans thereof or to such modified plans as shall be previously approved in writing by Declarant as provided above, or (it) dunollah 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 cemented 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 ouch work In commenced. The time periods specified in this subparagraph entitled •Restoration• shall be ' ektended as provided in the Section of this Declaration entitled 'Unavoidable Delay.• ! 3.4 Drainage. Grantee shall not drain or discharge water from the Land (including but not limited to rain water and water from landscape sprinkler systems located on the Land) on to adjacent land except as follows: Grantee shall at all times cause the Land to be graded and drained so as to cause the discharge of all water from the land onto the public street adjoining the Land or into an established drainage facility, if any, on or adjacent to the Land ! which has been designed cc accomodate the water at the rate discharged. 3.5 Signs. Grantee shall not place or use any signs, banners, balloons, displays of other advertising media in, on, about or above the land or on or in any improvements constructed or placed thereon unless it has first obtained the prior written consent of Declarant as to the number, size, location, height, illumination, calor and design of such signs or other media. Declarant shall not unreasonably withhold such approval so long as such signs or other media (a) comply with (L) Declarant's sign program for the Land, the property surrounding the land and the Benefitted Property, if any, and (ii) the stetutan, ordinances or regulations of any governmental entity or agency having jurisdiction thereover including Crancee itself and (b) are In harmony and conformity with the existing or proposed improveoents on or In the vicinity of the Land and with Declarant's general aesthetic and architectural plans and criteria for the Land, the Center and the general area in which the Land is located. Except as provided in this Stctiou, no sign, banner, balloon, display nr other advertising media which to 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 Frohibl end Operations end Uses. No trailer, camper, bus, automobile, motorcycle, boat or other vehic Le or equipment ('vehicle') shall be permitted to remain upon the land overnight after 11:15 p.m. or before 5:00 a.m. No use or operation shall be made, conducted or permitted on at with respect to all or any part of the Land or Improvements thereon which in obnoxious to or out of harmony with the residential and/or comsercial neighborhood in the vicinity of the Land. Included mon& the uses or operations which are prohibited and are deemed to conflict with the rasaonobla standards of appearance and maintenance required hereby, are uses or operations which produce or are accompanied by the following characcerlacln. which lint in nor intended to be all inclusive: 9-54 (a) Any public or private mrinsnco; (b) Any vibration, mica, sound or disturbance that is objoctLomblo duo to intermittence, heat, fraquancy, shrillness or loudness; , (e) Any direct lighting which is net shielded and confined within mite boundaries; (d) Any emission of odors, noxious, camtic or eonoaive whether toxic or nontoxic; Umutter, I (e) Any litter, dust, dirt or ash in excessive quantities; (f) Any use of a structure of a temporary character, trailer, tent, aback, garage, barn or other outbuilding except for such structure. maintained on the Land during a period permitted for comttuction or reconstruction of improvements; i C (g) Any service, maintamnce, repair or washing of any vehicle on the land at any time except for emergency service necessary to move a vehicle to a maintenance facility off of the Land; �A ' (h) Any raising, breeding or keeping of animals, livestock or poultry of any kind; (i) Fuel storage of any type; ,1 i (]) 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 anceruu, 'C.e.' ' ancenm, -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 SeccLon shall consist of permanent landscaping ari improvements in harmony with other landscaping and improvements in the Center and approved In writing by Declarant. The provisions of this Section entitled 'Prohibited Operations and Uses- shall not in any way supersede the other Restrictions. 3.7 No Subdtvisfen. Grantee shall not effect any change or amendment to the Final Nap covering the Lund or record any further parcel or final map of the Sand or any portion thereof or facilities thereon pursuant to the California Subdivision Nap Aet or any similar lav and/or local ordinances adopted pursuant thereto, or file any tentative maps or applications with respect � thereto with any governmental agency, nor shall Grantee file or record a condominium plan covering the Land or any portion thereof or any Smprovemente thereon or any applications with respect thereto nor shall Grantee convey a portion consisting of less than all of chi; Land, unless expressly approved by Declarant which approval may be withheld by Declarant In its .ole dlaeretlon. 3.8 Zonlne. Grantee ahetl roc use or develop or attempt to use or develop the land or any portion thereof for any purpose other than chose purposes expressly allowed under the zoning ordinance or ordinances of the governmental entity having zoning jurisdiction over the :'and. Additionally, Grantee shall not at any time change or attempt any change in zoning, or obtain or apply for a conditional use permit, zoning variance or exception or other similar approval with respect to the use or development of the Land or any portion [hereof not expressly nllownd under such existing zoning ordinance, unless expressly approved by Declarant, which approval may be withheld in its sole discretion. Nocvlthecanding the foregoing, Declarant shall not unreasonably withhold its consent to Grantee's application for such conditional use permit as may be required for development of the Land with the Specific Facilities. Grantee shall obtain beelarant'a consent prior eo placing such application an the agenda of Grantee's dl.scretLonary body or submittLng any ouch application or related docmenta to any other governmental agency and thereafter willsubmit copies of all ouch documents to Declarant for its review and information. 9 9-55 3.9 Indennicv. Declarant and Dacloraat'a pant and present employees, officers, directors, oharoholdera, agents and ropreaentativen and its and their respective aucconzora and asaigna (collectively, the 'SuBnaicesa") shall not be liable for any lama, damage, injury or claim of any kind or character to any person or property arising from or caused by (a) the improvement, development, maintewnce, use, lease or other eonvoyanea of rho Land or improvements thereon or airy portion thereof or interest therein, including, vichout limitation, any lona, damage, injury or claim arising from or caused by or alleged to Arian from or be caused by (1) any use of the land or any part thereof, (ii) any dafoct in the danign, eon,truction of, or noterial in any structure or other improvement upon the land, (iii) Any dafect in or contamination of soil. or in the preparation of soils or in the design and accomplishment of grading, (including the existence of any contaminants or bazardous materials in or on the soil), (Lv) any act or omission of Grantee or any of its agents, employees, licensees, invitees, or contractors, (v) any accident or casualty on the Land, (vi) any representations by Grancee or Any of its agents or employees, (v Li) 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 Lard, (x) any other cause whatsoever in connection, with Grantee's use of the land 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 Iand 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 ouch loss, damage, or injury of Grancee, and agrees to indemnify, defend and hold harmless Declarant and its property, and the other Indemnitees from all loss, liability, damage, costs and expenses (including attorneys' fees) arising from or related to any such loss, damage, injury or claim, whether incurred or made by Grantee or any other person(s). The foregoing waiver and indaamity shall apply to a claim or action brought by a private party or by a governmental agency or entity under any statute or common law now or hereinafter in effect and is intended to apply with respect to loss, damage, injury or claim arising before or after she lease, sale or other conveyance of any portion or all of the land or any improvements thereon. With respect to design, construction methods, materials, locations and other matters for which Declarant has given or will give its approval, recommendation or other direction, she focegoing waiver, indemnity and agreement shall apply irrespective of Deelarant's approval, recommendation or other direction. Notwithstanding anything to the contrary above, nothing contained in this Section shall operate to relieve Declarant or the other Indemnitees from any loss, damage, injury or claim ultimately established by a court of competent jurisdiction to have been caused by the sole negligence or willful misconduct of Declarant or the other Indemnitees. Grantee's covenants in this Section arising from or related to acts or occurrences during the time of Grantee's ownership shall survive the lease or other conveyance of all or any part of the Lend or Improvements thereon and shall be binding on said Grantee (as well as its successors to the Land) until such time as action against the Indemnitees is absolutely barred by an applicable statute of limitations. ARTICLE 4. DECLARANT'S RIGHT OF FIRST REFUSAL. Except with regard to 'Permlcted Transfers' described in the Section above encitlea 'Transfers', if, at any time prior to the twenty fifth (25c1,) anniversary of the Effective Date, Grantee shall determine to transfer all or any part of the Land or the improvements thereon or any interest thera'..n ('Interest'), Grantee shall notify Declarant of the price and the terms an which Grantee will be willing to transfer. If Declarant, within sixty (CO) days after receipt of Grantee's notice, indicates in writing its agreement to purchase said Interest for the price and on the terms stated in Grancee'• notice, then Grantee shall transfer and convey the Interest to Declarant for the price and on the terms stated in such notice. If Declarant does not indicate its agreement within such sixty (60) day period, then Grantee thereafter shall have the right to transfer And convey the Incerest to a third party, bur only for a price not less than the price offered to Deelarane and on coma nor more favorable than those taced in the notice. if Grancee does not so eranafer and convey tho Interest within one hundred eighty (180) days after Granne'a notice, then any further eransocciona (including a transaction on the name price and terms previously submitted to IO 9-56 ... ...._ .�..,.w ecs:en;-�;•�sm�ar..r:?mgakt�,±r,-^c^r..�nrc»r _ .. �n:>-�•-s-.:-.,:c•-:r: m.r, nrvevrr;.,:mm�:.¢..-...moi..... Declarant) shall be dammed a mw dotomination by Crantem to transfer and convoy ' said Interaot, and the provisia s of thin Article shall again ba applicable. ARTICLE S. REMEDIES. •— 5.1 Default and Ceiwrnl Remedion. In the event of any broach, fJ 0 U "Solation or failure to perform or satisfy any of the Razertctionsi which has mat as been cured within the applicable cure period am not forth below, Declarant at its sole option " discretion may enforce any ono or more of the following remedies any other rights or remedies to which Declarant my be entitled by Lav or Uor equity, whether or not act forth herein. Unless a cure period is otherwise specifically denignated, a cure period shall commsncu when written notice is given to Grantee of a violation hereunder and shall and ten (10) days thereafter p 9 In the case of a monetary default and thirty (30) days thereafter in the came of a nonmonstary default; prodded, however, that if a nonmonotary default is not reasonably suaceptible to cora promptly within the thirty (30) day period, them Grantee shall have a reasonable time to cure the same so long as Grantee has _ 0 commenced such cure promptly within the thirty (30) day period and thereafter I diligently prosecutes the cure to completion. To the eaximun 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 sentence in the event Declarant elects to exercise any tomedy provided for in Section 5.3 hereof based upon a particular violation of the Restrictions, such remedy shall be Declarant's mole and exclusive remedy for such violation of the - Restrictions. Notwithstanding the foregoing, Declarant'a remedies for a violation or breach of Section 3.10 (Indemnity) shall be cumulative with and in addition to Its remedies for other violations or breaches under this Declaration. (a) Damneea. Declarant may bring a suit for damages for any compensable breach of or noncompliance with any of the Restrictions, or declaratory relief to determine the enforceability of any of the Restrictions. (b) lam. It is recognized that a particular or ongoing violation by Grantee of one or more of the foregoing Restrictions may cause Declarant to suffer material injury or damage not compensable in money damages (Including, but not limited Co, irreparable effects on the type and quality of development on and use of the Benefitted property or portions thereof and/or frustration of Declarant'a purpose for conveyance of the Land to Grantee), and that Declarant shall be entitled to bring an action in equity or otherwise for specific performance to enforce compliance with the Restrictions or as injunction to enjoin the continuance of any such breach or violation thereof, whether or not Declarant exercises any other remedy set forth herein. 5.2 Inspection. Declarant or its euthorLzed representatives may from time to time, at any reasonable hour, enter upon and inspect the Land, site or any portion thereof or Improvements thereon Co ascertain compliance with the Restrictions, but without obligation to do so or liability therefor. 5.3 Option to Repurchase the Land. Upon any proposed, attempted or actual 'transfer' in violation of the provisions of Section 2.7 above and. in addition to the foregoing remedies described In Section 5.1, upon any violation of the Restrictions itemized in Sections 2. 1(a) ('Improvement and Continued Use-) or 2.1(c) ('Commencement and Completion'), Declarant, in Its sole option and discretion, shall be entitled to repurchase the Land am provided below. (Declarant shall not be entitled to repo:chase the Land unless a proposed, attempted or actual transfer in violation of Section 2.7 has been initiated, a violation of the restrictions in violation of 2.1(e) has occurred or construction has not been commenced or completed as rcglnLred by Section 2.1(c).) (a) Crnnt of Ontion. Grantee hereby grants to Declarant an exclusive option to purchase the Land subject only co: (1) Current taxes not yet delinquent; (11) Mateers affeeeing title existing at the Effective Data of chis Declaration, excluding any morcgege, dead of trust or similar instrument to which Declarant has subordinated the Enforcement Right. purauanc to Soccion 2.8 above; 9-57 (SIL) Netcom affecting title which aro created, meds, "auand, tormented to or roquasted by Doclarant, its succonecto or "signs, excluding any mcrtgags, dead of trust, any mattor related to Lnsuanes of any public obligation or similar inatrrmeot to which Declarant has comantod without exercise of the Enforcement Rights or to which Declarant hoe subordinated the Enforcement Rights pursuant to Section 2.8 above; (Lv) Natters whom an printed exceptlors in the standard form California Land Title Asacclation owner's policy of titla insurance. (v) Noninterfaring easements for utilities used in -- connection with the improvements constructed on the Land. (b) exercise of Repurrhme Option. Declarantmay exerciao ito option to repurchase the Land by giving written notice to Grantee of Declar"t'a election to repurchase within (i) sixty (60) days after receipt of Grantee's natice of proposed 'transfer' as provided In Section 2.7 (Transfers) above, (11) 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 commencing thirty (30) days after delivery of =tics to Crantee of violation of the Restrictions itemized in Section 2.1(a) if such violation hes continued unabated, or (iv) within one hundred eighty (180) days of the respective commencement or completion dates (as such dates may be extended pursuant to the terms of this Declaration) in the event of Grantee's violation of Section 2.1(c) above. For purposes of this Section 5.3, Declarant's actual notice shall mean notice eo the person to whom notice may be addressed under Section 6.7 of this Declaration, and no other persons. No failure of Declarant to exercise its option upon Grantee's failure to commence construction as provided above shall constitute a waiver of its right cc exercise the option upon Grantee's failure to complete construction by the appropriate date, as described above. No failure of Declarant to exercise ins option in the event of any proposed, attempted or actual 'transfer' (whether approved by Deelarsnt or not) in violation of Section 2.7 above shall constitute a waiver of Declarant's rights to exercise the option upon any such transfer subject to Section 2.7 which might be proposed, attempted or consummated at a later time. No failure of Declarant to deliver a notice of violation of the Restrictions contained in Section 2.1(a) shall constitute a waiver of Declarant's rights to deliver such notice at any time and exercise the option. Rescission of any notice of violation of the Restrictions itemized in Section 2.1(a) prior cc the option becoming exercisable, or If such violation is cured, after the option becoming exercisable shall nor 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 thin option shall not constitute waiver of Declarent's right to exercise the option again If a later event causes the option to become exercisable. (c) E"Lration and Quitclaim. Unless exarcisedby Declarant, this option shall expire upon the twenty fifth (25th) anniversary of the Effective Dace. After expiration and upon written request therefor by Grmncee, 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. DeclarantIspurchase price for the Land upon its exercise of the option provided above, shall be the greater of: (L) An amount including the following: (Al The price attributable to the Land equal to the lesser of (A) $4,400,000 increased or decreased by CPI adjustments which .hall be limited to an annualized increase or decrease of five percent (5!) per annum or. (B) the appraised fair narkec value of the Land with the use restricted to the use for which Declar.nt notifies Grantee at the time of exercise of Che 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 sae 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 LPI adjoatment shall be the percentage increase or decrease In the CPI measured from the month which is two months prior cc the Effective Date to the month which is two months before the date of delivery of the notice of exercise. 12 II J 0U U U NM (Li) 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 premivmn shall be limited to five percent (51) of principal) Incurred in connection with, any issue of public obligations where the proceeds have been wood only for coats and expenses related to construction of the Specific Facilities on the Land provided that the original principal amount of such public obligations does not exceed $6,000,000.00 and provided that the amount payable to Grantee under this subparagraph (LL) 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 Terms. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consummate the purchase ea specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preliminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by written notice to Grantee through escrow, shall be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the land or any portion thereof is encumbered by a mortgage or deed of trust. Declarant may unilacerally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Crancee through the foregoing escrow. Any additional amount necessary to satisfy :such indebtedness shall be paid by Grantee. Grantee and Declarant shall each pay one-half of the escrow fees. Grantee shall pay for documentary tax stamps, far 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 cries shoving title to the Lend veated 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 conte or expense shall be allocated between the parties in the manner customary in Orange County, California. (f) IrrevocabilL ev. The option created hereby shall be Irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) warranties. Plena end Specifications. In the event Declarant reacquires all or any portion of the Land, the Specific Facilities or the Other Improvements under this Section 5.3, Grantee shall assign and eranafer to Deelaranc for no additional consideration, ell warranties, plans and specifications relating to the Usable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 9-59 ' The CPI shall be the Consumer Price Index for All Urban Consumera Loo Angeles- Annho is -Riverside Metropolitan Area (all Lremn) compiled by the United States _ ,. Department of labor. Bureau of labor Statistics, based upon 1982-84 as 100; provided, however, that if the CPI is modified or changed, than the CPI shall be a converted or substituted index as daternlned by Declarant. plus ' ' IN The fair markat value of the Useable Ot Improvements, if any, on the and at the time the Option is exercised. The L -Useable Improvements- shall be limited to those interior areae of buildings which can be used or converted for use an interior commercial at retail rentable p space in accordance with the use which Declarant intends to put the Uaeable Improvements as designated by Declarant. Fair market value of such Usnabla Improvements shall be determined using an income method of appraisal based upon ! comparable rents determined on a useable square foot basic for the square footage B of the Useable Improvements offset by the cost of any improvements required to 8 convert the use of the building to the use which Declarant notifies Grantee that p it intends to put the Usable Improvements. Less i Om (C] All Costs, expennea, interest, fees, advances and other sumo required to be paid by Grantee to Declarant hereunder, to the extent nor reimbursed to Declarant by Grantee, shall reduce the amount of any v� ! repurchase price cc be paid by Declarant under the terms of the repurchase option contained In this Declaration. Or (Li) 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 premivmn shall be limited to five percent (51) of principal) Incurred in connection with, any issue of public obligations where the proceeds have been wood only for coats and expenses related to construction of the Specific Facilities on the Land provided that the original principal amount of such public obligations does not exceed $6,000,000.00 and provided that the amount payable to Grantee under this subparagraph (LL) 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 Terms. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consummate the purchase ea specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preliminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by written notice to Grantee through escrow, shall be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the land or any portion thereof is encumbered by a mortgage or deed of trust. Declarant may unilacerally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Crancee through the foregoing escrow. Any additional amount necessary to satisfy :such indebtedness shall be paid by Grantee. Grantee and Declarant shall each pay one-half of the escrow fees. Grantee shall pay for documentary tax stamps, far 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 cries shoving title to the Lend veated 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 conte or expense shall be allocated between the parties in the manner customary in Orange County, California. (f) IrrevocabilL ev. The option created hereby shall be Irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) warranties. Plena end Specifications. In the event Declarant reacquires all or any portion of the Land, the Specific Facilities or the Other Improvements under this Section 5.3, Grantee shall assign and eranafer to Deelaranc for no additional consideration, ell warranties, plans and specifications relating to the Usable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 9-59 __._•[^v.'siV+lrX}IIYn,J�,'G��XY)�T, '���P.1!T i•�n�:.. ��u.LA!�C'."�:Sn�-....n.1.r.:r:nr�:,'•i J,Tf•nt. .., re r•.n ...n�.n _... • 5.4 Arbitration Proaedurs. if Declarant and Granton aro not able a'�afJnS to agree to the fair market value of the land or the llasable Improvomnto within thirty (30) days after the data Doclarant gives Crantoo notice of exercise of the option, than the following arbitration procedure shall apply: [A) Declarant shall within an additional thirty .'30) days, At Declaranc'n coat, deliver to Crantae a written appraisal of the p. Y applicable highest fair market value with which Declarant agrees, prepared by an independent qualified appraiser (•Daclarant's Appraisal*). The cc= 'independent j qualified Appraiser- os used in this Section shall mean a profeavional U I independent appraiser who is a Hamber of the American Institute of Real Estate Appraisers (R.H. or N.A.I.), the Sotiacy of Real Enters Appreinera (S.R.A., 3.R.P.A., or S.R.E.A.), the American Society of Apprainern (member or senior 0 membar A.S.A.), or another recognized association of appraisers, or a similar association Of real estate nppralaera that has adopted rulers and regulac Loma Q governing the professional conduct and ethics of its mambers requiring independent aoptaisals without bias to any Patty or to Any result, or has such other education and experience so an to be considered qualified by both parties. [D) If Grantee does not agree with Declarant'a Appraisal, Grantee shall notify Declarant in writing of such diangreenent in m ; B writing within ten (10) days after receipt of Declarant's Appraisal. Within thirty (3D) days of ouch notice. Grantee shall at Its cost deliver to Declarant ' a written appraisal of the applicable highest market value with which Grantee agrees, prepared by an Independent qualified appraiser (•Crantee'a Appralaal'). If Grantee falls to deliver Grantee's Appraisal within the time provided, or if Grantee's Appraisal of fair market value is lower than or equal to that contained , in Declarant's Appraisal, then Declarant's Appraisal shall constitute the final and binding determination of the applicable fair market value. [C) If Grantee's Appraisal is delivered to Declarant within the time provided and is higher, than Declarants 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 1281.6, or any successor statute, Declarant shall file a petition to appoint the third appraiser with the Superior Court of Orange County, California ("Court'), and shall set the hearing on the petition on the earliest date permitted by the Court's calendar and by the applicable notice period required by lay. Declarant And Grantee shall share equally the cost of the Final Appraisal. If the Final Appraisal states a fair market value between that of Desiccant's Appraisal and Grantee's Appraisal, the Final Appraisal shall be the final and binding determination of the applicable market value. If the fair market value established In the Final Appraisal is higher Chan (1) the fair I market value established in Cranteo'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 Parker value eetabilahad In the Final Appraisal. (D) The procedure act forth above for determining the applicable market value shall be the exclusive procedure therefor and shall be final, binding and nunappealable unless nxpressly waived by both parties in writing. It is the responsibility of Crantee to ensure that this procedure for determining highest fair market value to inseituted in sufficient time to satisfy any commitments, agreements or needs of Grantee. 5.5 Waiver. U. Waiver by Declarant of a breach of any of the Reeerietlons by Grantee and no delay or failure co enforce any of the 14 • •I 5.E Advances. Declarant shall be entitled to advance any sum Declarant In its sole discretion deems necessary to protect and ptenerva the security for its rights and interest under this Declaration (including but not limited to sums for completion of conatruction of the Specific Facilities or any affairs improvements, any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbrances or liens or other chargee on any portion of the Land which appear to be prlo= to Declarant's rights and interest under this Declaration), all of which advances together with Interest at the maximum contract race then permitted by law shall be paid to Duelarant upon demand. ARTICLE 6. GENERAL PROVISIONS. 6.1 Unavoidable Delay. Any prevention, delay or stoppage In the work of building the Specific Facilities, t:he Ocher Improvements and any other related improvements or other work an provl+ied for in this Declaration caused by acts of God, war, inability to obtain labor or materials or reasonable substitutes therefor, or other similar matters or causes beyond the reasonable control of Grantee shall extend the time within which this Declaration require& certain acts to be performed For a period or periods equal to any period of such prevention, delay or stoppage, but not to exceed in the aggregate one year; provided, howzver, 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 C ' @aotrictlons chall be construed or hold to be a waiver of any ouccaadimg or + preceding broach of the same or any other of the Restrictions. No vaivor of arty broach or default of Grantee hereunder shall be implied from any omission by 11]] Declarant to take any astir.. on account of such broach or default if such broach a>{7 or default pornieta or is repeated, and no express waiver @hall affect a breach or default other than m specified in said waiver. The consult or approval by 7eclarant to or of any act by Grantee requlring Datlarant's consent or approval shall not be deemed to valve or tender umeceaaary, Declarant'a convent or approval to or of any subsequent similar acts by Grantee. 5.6 Cop" of Enforcement. In the event any legal or equitable action or proceeding shall be instituted between Declarant and Grantee to enforce any provision of this Declaration, the party prevailing in such action shall be 0 entitled to recover from the losing party all of its coats, including court coats I and reasonable attorneys' fees. Q 5.7 Rights of Lenders. No breach or violation of the Restrictions p 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 provLalons hereof shall be binding upon and effective against any subsequent owner or other occupant of the Land or portion thereof whose title is acquired by foreclosure, trustee's sale or dead in lieu of foreclosure but (a) such subsequent owner shall have a reasonable time after acquiring title in which to cure any violations or correct and change arty facts giving rise to Declarant'a rights under thin Declaration occurring prior + to such transfer of title and which are reasonably capable of being cured or changed provided, that such subsequent owner diligently acts to effect such cure II or change (and in the event of such diligent and timely cure, ouch 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 i applicable as to such subsequent owner with regard to any noncurable default occurring prior to the time such subsequent owner acquired title. ' Notwithstanding the foregoing, any such subsequent owner shall be required to use the Land in accordance with the restrictions set forth in Section 2.1(a) and diligently complete construct Lon 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 'curable' so long as reconstruction, repair or replacement in a manner consistent with the requirements of this Declaration Is physically and legally possible (without respect to cost), 5.E Advances. Declarant shall be entitled to advance any sum Declarant In its sole discretion deems necessary to protect and ptenerva the security for its rights and interest under this Declaration (including but not limited to sums for completion of conatruction of the Specific Facilities or any affairs improvements, any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbrances or liens or other chargee on any portion of the Land which appear to be prlo= to Declarant's rights and interest under this Declaration), all of which advances together with Interest at the maximum contract race then permitted by law shall be paid to Duelarant upon demand. ARTICLE 6. GENERAL PROVISIONS. 6.1 Unavoidable Delay. Any prevention, delay or stoppage In the work of building the Specific Facilities, t:he Ocher Improvements and any other related improvements or other work an provl+ied for in this Declaration caused by acts of God, war, inability to obtain labor or materials or reasonable substitutes therefor, or other similar matters or causes beyond the reasonable control of Grantee shall extend the time within which this Declaration require& certain acts to be performed For a period or periods equal to any period of such prevention, delay or stoppage, but not to exceed in the aggregate one year; provided, howzver, 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 C 1.M. Y. �'�.4.t(PE_-K r ..... �!r� tST14na'.h.'nrn�: ",von. Crantoo or because of any inability of Grantee to obtain funding from any source. Without limiting the generality of the foregoing, in no Quant shall Cranteo-o inability to obtain construction or permanent financing for daveloposnt of the Land, or a portion thereof, co" tltuto an unavoidable delay purausnt to this Section. Plartharmore, in no event shall any extension of any period of time he deemed to have occurred unless Grantee shall have given wrlttan notice to Doclarant within fifteen (15) days following any much delay, setting forth the facts giving rise to much extension; and provided further that the period of time for exercisa of Doclarant'o rights shall be commensurately extended. 6.2 Continvous Operations. Grantee shall proceed continuously and - diligently in accordance with the term and conditions of this Deelaraclon. In the event Grantee does not proceed continuously and diligently, much failure to I so proceed my, at the option of Declarant, be considered an event of default herein, except as such failure Ss excused by reason of any unavoidable delay as set forth in the Section hereof entitled 'Unavoidable Delay.. 6.3 Covenants to Run With the Land: Tern. (a) Covenants to Run With the Lend. The land shall be hold, Improved, developed, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the Restrictions net 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 and each of the Restrictions shall be binding upon and burden all persons having or acquiring any right, title or interest In the Lend, or any part thereof, and their successors and assigns, and shall inure to the benefit of the Benefitted Property and the owners of the Benefltced Property, their successors and "sigma, and shall be enforceable by Declarant and its successors and assigns, all upon the terms, provisions and conditions set forth herein. I (b) ice. All of the terms and provisions set forth in chin Declaration shall continue in full force and effect In perpetuity, except that Declarant's 'Enforcement Rights' (as described In Section 2.8 above) shall terminate twenty-five (25) years from the Effective Date hereof. (The provisions of this Declaration which shall survive in perpetuity shall include, without limitation Article 1, Sections 2.1 through 2.6, inclusive, 2.9, 2. 10. Article 3, Sections 5.1, 5.2, 5.5 through 5.8, inclus Lve, and this Article 6.) 6.4 Assteament by Declarant. Declarant may assign any of'ies rights j and powers under this Declaration to any fee owner of any portion of the Benefitted Property, so long as such person or entity in writing agrees to assume the duties of Declarant pertaining to the particular rights and powers assigned. Upon the recordation of such writing accepting such assignment and assuming such duties, such person or entity shall, to the extent of such assignment, have the 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 Land or to any portion thereof. Unless specifically assigned in writing as stated in chis paragraph, Declarant alone shall have the right to enforce the Reatrictions and _J the other provisions of this Declaration or to recover damages or other amounts for violation of the Reatrieclons or breach of Grantee's dueiea hereunder. 6.5 Amendments. Except :.s provided in this Declaration concerning (a) substitution of other real property as the Benefitted Property, (b) release of any portion or all of the land from this Declaration, (c) reacquieitlon of the Land by Declarant and (d) assignment by Declarant of ice righta under this Declaration, this Declaration may be terminated, extended or amended only by a writing executed by Declarant and Grantee and recorded against the Land. 6.6 Release. (a) Release by Declnran t. Declarant may release any portion of the [and from this Declaration at any time and for any reason without the approval of Grantee. (b) Rot Applicable to Deolerent. Rotwi.thatanding anything herein contained co the contrary, if Declarant reecquirea title to the Land or any portion thereof at any time after the date hereof and record(.) a notice of 16 e9, n U 1.1 M. termination of then& koetrictiona in the Office of the Canty Recorder of Orange County, California, chase Rentrictiom shall coma and terminate and be of na further force or affect u to Declarant and ouch property, offectivo m of tho date of each recordation. 6.7 Notice. All notices, comments, requests, d-m"^d^ and other communications provided for herein shall be in writing and shall be demand to have been duly given if and when personally served or forty eight (48) hours after being sent by United States registered mil, return receipt requested, postage prepared, to the other party at the following respective addresses: DECLARANT: THE IRVINE COMPANY c/o IRVINE LAND MANAGEHENT COMPANY Poet Office Box I Newport Beach, California 92658-8904 Attention: Presldant/IIMC GRANTEE: City of Newport Beach 3360 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92659-1768 or at such other address as Declarant or Grantee may, designate to the other in writing in accordance with the nrovision of this Section. 6.8 Governing law, Mls Declaration shall be governed by and construed under the laws of the State of California. 6-9 Severebill ty. 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 hold 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 lay. 6.10 Captions. The captions used herein are for convenience only and are not a part of this Declaration and do not in any way limit or amplify the terms and provisions hereof. 6.11 Entire Agreement. This Declaration, including Exhibits attached hereto which are incorporated herein by this reference, constitutes the encirs agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein. The forgoing sentence shell in no way affect the validity of the Agreement pursuant to which Grantee acquired the land or any instruments executed In connection therewith. 6.12 Gender and Number. In this Declaration (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural include one another. 6.13 Time of the Essence. TLLe is of the essence of each provision of this Declaration in which time Is an element. 17 n A9 r J Q P OEM ' IN WITNESS WHEREOF, the undersigned Levo executed Chia Declaration as of the data arLtton bolow. °DECIARANT' 'CRARTFE' 711E IEVINH COMPANY, CITY OF NEWPORT BEACH, a Michigan corporation a California ainie pal corporation By:-Tw\ _ . Tm By: Ica• I . Mayor By:. ATTEST: Ira: sal Y By: I ta: 1CLEY Clerk STATE OF CALIFORNIA I C�,,,��J////11111�� �� I.os COUNTY O<' 0 1 APPRD ED By: Ira: City Mm i r APPRO%%; FORM: By: r Attorney On thiay&dsy of in the year 19YI-before me, the undersigned, a Notary Public d for said State, personally �ppeered 'f. � aad /�� ;� �C" ..ter . personally knwn to m or proved to me on the bas of satisfy to /w evidence) to be the pets o executed the vithLn instrument as),�e—--Y- and respectively, on behalf of THE IRVINE COMPANY and acknovledged to me that a corporation executed it. WITNESS wry hand and official seal Not Public In and fo said Slate ARWn3.0n 18 STATE OF CALIFORMIA ) ) Has COUNTY OF ORANGE ) On March 19. 1992, before vm, the urkdaroignod, a Notary Public in and for the State, porconally appeared Ebil SanrAmm, knows to sm to be the Kayor, Robert L. MM, known to no to be tba City Nanagar, and 17anda H. Raucio, known to no to be tho City Clark, on behalf of the CITY OF NEGPORT BEACH, which executed the ._ within enftr...n....t pursuant to gaverning law and a resolution of ito board of directors and acknowledge to Ina that the CITY OF NEWPORT BRACH executed it. WITNESS my hand and official Hoa I F[ HEAL 44 No - Public in qpd for mid state %Wmm CYN g11Fit wft*zc' vasaac-wuoven man+ AUm t x9u u D= 9-65 MIBIT 1 To Declaration of Special Restrictions Legal Description of 'Benefitted property- EXHIBIT "I" FECAL DESCRIPTION BENEFITED PROPERTY FOR THE CITY OF NEWPORT BEACH LIBRARY SITE Parcel (500 and 550 Newport Canter Drive and Adjacent Iand) 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 Naps in the Office of the County Recorder of amid Orange County, described as follows: BEGINNING at the easterly terminus of that certain course shown as having a bearing end length of 'South 80'14'38° East 91.45 feet" in the northerly right- of-way line of San Nicolas Drive on a map of Tract No. 6015, filed in Book 239, Pages 28 through 41 of Miscellaneous Napa In said Office of the County Recorder; thence along said right line and along the easterly right -of -ray line of Newport Center Drive East, the southerly right-of-way line of Santa Roan Drive end the southwesterly right-of-way line of San Joaquin Hills Road, all as shown on said map of Tract No. 6015 through the following common; North BD'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 woot.rly and northwesterly 38.16 feet through a central angle of 87'26.49" to a point of reverse curvatura with e curve concave westerly and having a radius of 1670.00 feet, a radial line of said curve from said paint bears North 82'47'49" 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 feet 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" Past 2.20 feet to the beginning of a tangent curve concave southerly and having a radius of 25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through a central angle of 89017'26" to a point of reverse curvature with a curve concave northeasterly and having a radius of 6072.50 feet, a radial line of said curve from said point bears North 46'52'09" East; thence along said curve southeasterly 329.29 feet through a central angel of 3'06.25"; thence tangent from said curve South 46'14.16" East 31.81 feet to the northerly corner of Parcel 1 as shown on a map filed in Book 13, Page 41 of Parcel Maps in said Office of the County Recorder; thence leaving said southwesterly right-of-way line of San Joaquin Hills Road and along the boundary of said Parcel 1 the following courses: South 44'06'14" 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 25.0D feet; thence along said curve southeasterly and easterly 39.27 fent through a central angle of 90-00'00'; thence tangent from said curve North 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 30'19'01' to a non -tangent incersection with said southwesterly right-of-way of San Joaquin Hills Rood; thence leaving amid boundary and along said right-of-way line South 46'14'16" East 48.72 feet to the northerly corner of Parcel I. as shove on a map filed in Book 21, Page 18 of Parcel Maps in said Office of the county Rceorder, 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 beers 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 centra). angle of 29'47'41'; thence tangent from said curve South 44'06'14' West 104.09 feet to the beginning of a tangent curve concave easterly and having a radius of 25.00 feet; thence along said curve nouthweaterly and southerly 39.27 feet through a central angle of 90'00'00"; thence tangent from said curve South 45'53'46' East 186.00 feet to the westerly corner of Parcel 1 as shown an a map filed in Book 54, Page 23 of Parcel Maps In said Office of Coancy Recorder; thence leaving the boundary of Parcel 1 as shown rmlbu t nop....- r.tceraar.sn a�mv"p J ' U e4 =a on said nap filed in gook 21, Pago 18 of Parcel Hops and along the boundary of Parcel 1 ae shown on amid mp filed in Book 54, Pago 23 of Parcel Nape South 45'53'46• East 68.09 foot to the beginning of a tangent curve concave =steely and having a radius of 40.00 fact; theme continuing along acid boundary end said curve southeasterly 36.39 foot through a central angle of 52'07.23' to the northwesterly corner of Parcel 3 m shown on Parcel Hap No. 84-706 filed in Book 192, Pages 1 and 2 of Parcel Napa in said Offico of the County Recorder, a radial tine of said curve from said corner bears North 03'46123° Want; theme along the boundary of said Parcel 3 and Parcel 2 m shown on said Parcel Nap the following courses: continuing along said curve southerly 26.44 fact through a central angel of 37'52'37•; thence tangent from said carve South 44'06'14• West 289.00 feet to the northeasterly corner of Parcel 1 as shown on a cap filed In &wk 27, Page 43 of Parcel Napa in said Office of the County Recorder, acid corer being the beginning of a curve tangent to lase 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 sources: along said curve southwesterly and westerly 62.83 feet through a central angel of 90'00100'; thence tangent from said curve North 45'53'46' Went 14.11 feet to the beginning of a tangent curve concave southerly and having a radion of 25.00 feet; theme along said curve northwesterly and weaterly 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-way line of said San Nicolas Drive es described in a Grant of Easement to the City of Newport Beach recorded in Book 8987, Page 836 of Official Records in said Office of the County Recorder; thence leaving said boundary of Parcel 1 and along said right-of-way line as described in said Grant of Easement and as shown on Bald map of Tract No. 6015 the following courses: North 46'44'00• vent 92.34 feet to the beginning of a tangent curve concave southwesterly and having a radius of 950.50 feet; thence along said curve northwesterly 555.92 feet through a central angle of 33'30838' cc the POINT i 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, Niscellaneoun Naps, records of said County, lying within the following described boundary: Coteseneing at the center line intersection of Santa Rosa Drive with Newport Center Drive East ae shown on said map; chance south 78'27.06' West 48.00 feet along the Westerly prolongation of the center line of said Santa Rosa Drive to a point on a non -tangent curve concave, Westerly and having a radius of 1557.00 feet, said point being the True Point of Beginning, a radial to said point bears North 78'27'06' East, said curve being concentric with the center line of said Newport Center Drive East; thence Southerly 1314.59 feet along said curve through an angle of 48'22'31' to the beginning of a compound curve concave Northerly and having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve through an angle of 110'52'24• 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 40'41158' to the beginning of a compound curve concave Southerly and having a radius of 897.00 feet; thence Easterly 2438.09 feet along said curve through an angle ol: 155'43'57' to the beginning of a I compound curve concave Westerly and iwvin; 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. c.atnu t Lqa o..o rtpUm nt •s m.[1 1nj norarws.orL 2 w.' 11.e tau 0 MIBIT 2 To Declaration of Special Restrictions Requiramnta for Specific Facilities •m REQUIREMENTS FOR SPECIFIC FACILITIES Description of Specific Facilities: A free public library and related dxivevsys, accesways and landscaping. Permitted Use: Public Library and related parking of private passenger automobiles during the hours from 6:00 a.m, to 11:30 p.m. daily. Maximum No. of Buildings: 1 Minimum Grose Floor Area: 10,000 square feet* Maximum Cross Floor Area: 65,00D square feet* Maximum Floor Area Rada: 50 percent Commencement Date: 12 months from Effective Date Completion Dec.: 16 mantho from Effective Date * By setting forth any required minimum or maximum gross foot area above. Declarant does not thereby represent or warrent that Buyer shall be able to develop the Land for such density. REQUIREMENTS FOR MER L(PROVENENTS Those improvenenta required by Exhl9it I to the Exchange Agreement. IaPYra.'M I Opclel WVIttIml traLlt 1 Op�c l[It Iml LLtlm 9-70 EXHIBIT 3 To Declaration of Special Eestrictiooa II Subordination Agreeoent 9-71 • When Recorded Mail To: THE IRVINE COMPANY 550 Newport Canter Drive Newport Beach, CA 92660 Attention: Pros Ldant/IWC Space above this line for Recorder's use A.P. No. SUBORDINATION AGRE EKENT NOTICE; THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS AND INTERESTS AND YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOVER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. I. PARTIES AND DATE. This Suboc&nacion 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). I1. ACKNOWLEDGMENTS Owner has executed a Declaration of Special Land Use Restrictions. Right of First Refuaal, 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 Ln the City of Newport Beach, County of Orange, State of California, as shown on a parcel map filed in Boole , Pages_ to Inclusive, of Parcel Maps,. in the office of the County Recorder I of Orange County (the 'Land'). Owner has executed, or is about to execute, certain loan documents ('Loan Documents-) dated 19_ with or in favor of (-Lender') to obtain and evidence a loan (the 'Loan') from lender in the mount of $ The Loan Documents have all been delivered to TIC and include, without limitation, a Deed of Trusr (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 obllgacLons in connection with the Loan In good faith and for value pursuant to an agreement with Owner, on which TIC is relying and which is memorialized in the Loan Documents, that the proceed, of the Loan will be expended solely for fin�ncfn,g or refinancing of contraction of certain improvements on the Land, the plans and specifications for which have been, or will, prior to the commencement of construction, be approved by TIC, all in accordance with the provisions of the Loan Docunonts, and for no other purpose unless approved by TIC In writing In its sole discretion. A condition precedent to Lender's agreement to make the Loan is that the Deed of Trust shall be and remain at ell tinea a lien or charge upon the Land prior and superior to cerca Ln enforcement right, and remedies of TIC under the Declaration. TIC and Owner agree chat lc is to their mutual benefit that Lender make the Loan to Owner. This Agreement in made in consideration of the mutual benefits np.c�ee s..en.um. uemu 2 a.mmm.urn an�w.ce It. 1012 J -, 9-72 n D ° ° to TIC end Durr resulting from the loan and for other valuable consideration, the receipt and sufficiency of thich in acknowledged by TIC and Oblast. 111. SUBOSDI.::11Cn. The Deed of Trust and any ranovuls or axtoonlor thoroof shall be and remain at all times A lion or charge on the land prior and superior to Declarant's 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 flights'); provided, however, that (1) the Declaration (including the Enforcement Rights) shall be binding upon and effective against any subsequent owner or other occupant of the sand or any portion thereof vhose title is acquired by foreclosure, truatae'm colo, dasd in lieu of foreclosure or otherwise an, 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 thin Agreement, Lender's foreclosure or similar or related proceeding under the Deed of Trent shall not extinguish the Declaration or TIC'° Enforcement Rights, all of which shall survive such proceeding and shall be binding upon any nubacquent owner acquiring titls from Lender as stated above. IV. NISCEUANEOUS A. Entire Agreemanc. 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 Twat. B. Attorneys' Fees. The prevailing party in any litigation respecting this Agreement shall be entitled to reimbursement of attorney's fees and costs, whether or net taxable, incurred in the litigation. 'TIC" °OWER. THE IRVINE COMPANY, CITY OF NEWPORT BEACH a Michigan corporation Its: Its: Mayor By: ATTEST: By: Its: APPROVED AS TO FORM: By:_ Its: City Attorney 0p.c1 .1 a+. t+lctlem t 11. I m 2 ew".e, e.l�w M."m.o uwres 11, m a I 9-73 0 a ° STATE OF CALIFORNIA ) ).aa COUNTY OF ) On , 19 , before m, the undersigned, a Notary Public in and for acid Stats, psraonally appeared and p°roonally known to ne (or proved to m on the baoio of actie£actory evidence) to be the persons who executed the within inatrument ae and on behalf of THE IRVINE COMPANY, a Michigan corporation, and acknowledged to me that ■aid corporation executed it. WITNESS cry hand and official seal. Notary Public in and for said State STATE OF CALIFORNIA 1 I.as COUNTY OF ) On 19_. before me, the undersigned, a Notary Public in and for said State, personally appeared i personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Nayor, on behalf of City of Newport Beach, which executed rhe within instrument pursuant to governing law and a resolutLon of its board of directors and acknowledged Co me that the City of Newport Beach executed it. WITNESS my hand and official seal. Notary Public in and for said State A MM.M aGrel.t 8x 4le limn tm lilt I J auGa re lGrtlm 4rnomw4rc° ll, TGA I 9-74 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 9-75 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. 9-76 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. say (e) Endorsements. Each applicable insurance policy shall be endorsed per the following: i. The City, its elected or appointed officers, officials, employees, agents and volunteers, and the State of California, its elected or appointed officers, officials, employees, agents and volunteers, are to be covered as additional insureds, with respect to liability arising out of work performed by or on behalf of the Tenant. (Note: This endorsement applies to the General Liability and Automobile 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. MW vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (ten (10) calendar days written notice of non-payment of premium) written notice has been received by City. (Note: This endorsement applies to all policies except the Workers' Compensation policy. Should the Workers' Compensation 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. 9-79 Exhibit "F" Memorandum of Lease RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 (Exempt from Recordation Fee - Govt. Code Sec. 6103] MEMORANDUM OF LEASE AGREEMENT WITH OPTIONS FOR RENEWAL This MEMORANDUM OF LEASE Agreement With Options for Renewal ("Memorandum") is dated , 20_, and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City') and Credit Union of Southern California ("Tenant"), a California corporation, concerning the Premises described in Exhibit 'A" attached hereto and by this reference made a part hereof. The term of the Lease is five (5) years, commencing 2015, and ending 2020. Tenant and City may extend the Term of this Agreement for two (2) additional successive terms of five (5) years each. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. [SIGNATURES ON NEXT PAGE] • :2 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: r1 Aaron C. Harp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, a California municipal corporation By: q David Kiff City Manager TENANT: CREDIT UNION OF SOUTHERN CALIFORNIA, a California corporation Date: By: Leilani I. Brown Dave Gunderson City Clerk President/CEO Date: By: Peter Putnam Chief Financial Officer [NOTE: Attach Exhibit A from Agreement as Exhibit to this Memorandum behind attached Notary form] M 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 before me, Notary Public, personally appeared 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 Signature (seal) 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 before me, , Notary Public, personally appeared 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. (seal) Signature NM. This Page Intentially Left Blank Attachment CC 2 Attachment CC 2 mz�N `; j Library Expansion .i,000 0 40 i z, t n lwy, Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to �ia¢"•'PogT any results obtained in its use. 0 100 200 _ Imagery: 2009-2013 photos provided by Eagle �" Feet Imaging www.eagleaerial.com ��4row��' 9-86 w Attachment CC 2 Attachment CC 3 TO: BOARD OF LIBRARY TRUSTEES FROM: Tim Netherton, Library Services Director 949-717-3810, thetherton@newportbeachca.gov PREPARED BY: Tim Netherton, Library Services Director TITLE: Retail Space on the Second Floor Expansion RECCOMMENDATION: Staff requests that the Board of Library Trustees recommend to City Council that the retail space on second floor expansion be leased to the Credit Union of Southern California. At the May 18 meeting, the Board of Library Trustees requested further information regarding the potential leasing of the vacant retail space on the second floor to the Credit Union of Southern California, including information regarding the terms of the lease. In addition, representatives from the City's Community Development Department and Dave Gunderson, the CEO of the Credit Union of Southern California will make a brief presentation and respond to questions. DISCUSSION: The retail space across from Bistro 24 on the second floor expansion has been vacant since the Civic Center opened in May 2013. The space was initially planned to house the Newport Beach City Employees Federal Credit Union, who ultimately opted not to relocate to the Library site. The City's Community Development Department has been approached by a handful of potential lessees, none of whom seemed to be a good fit for the Library. The Board of Library Trustees has always favored a lessee whose operations support the Library's mission; unfortunately, these types of entities lack the financial resources to lease the space. At the March 16 meeting, the Board of Library Trustees approved a plan to use the space as a community gallery managed by staff for the display of art and collections. In April 2015, however, the Credit Union of Southern California (CUSC) approached the City about leasing the retail space. CUSC offers a full range of financial products (e.g., home loans, auto loans, commercial loans, no -fee Visa loans, no -fee checking, certificates of deposit, money market accounts, and financial planning services). They were chartered 60 years ago; have over $900 million in assets, 15 branches, 30,000 no -surcharge ATMs through the CO-OP network, almost 8,000 -shared branches (in which the credit union shares a location with another facility), 77,000 members, and the highest possible financial rating from Bauer Financial. CUSC has almost twice the required reserve level to be considered well capitalized. In terms of customer service, CUSC answers roughly 75% of all incoming calls within one minute and does not use an automatic call attendant, and callers are not required to select options to speak with a representative. CUSC has consistently produced a Net Promoter Score, a loyalty score that a growing number of Fortune 500 companies and financial institutions are using, of over 80%. Banks and credit unions are currently averaging 8% and 58%, respectively; CUSC's score in 2014 was 84%. �3 The Credit Union of Southern California would make a suitable tenant of the space for the following reasons: • The Credit Union of Southern California will be open to members of the public. In addition, the Credit Union of Southern California is merging with the Newport Beach City Employees Federal Credit Union (the space's originally intended tenant), so City staff will have quick and convenient access to all credit union services. • The Credit Union will install a full-service, deposit taking and cash dispensing ATM. The addition of an ATM is an oft -requested amenity from Library customers. The ATM would be installed through the outer wall of the branch in order for it to be available during hours that the branch would not be open. In addition, CUSC will also ensure that two or more employees are on-site at the branch during operating hours (Monday through Friday from 9:00 AM to 6:00 PM and Saturdays from 9:00 AM to 1:00 PM. The Credit Union intends to join and support the Newport Beach Chamber of Commerce and participate and support a variety of Newport Beach community events. CUSC will also generate revenue that will help fund Library and Cultural Arts programs. In addition, CUSC has expressed willingness to donate to various community organizations. Over the last 2 decades, the Credit Union of Southern California has donated $1 million to the communities it serves. The Credit Union of Southern California has financial literacy and financial education programs for adults and students of all ages, which complements the Library's mission. They have expressed a willingness to work with the library to offer programming or to enhance any existing programs in place. • The retail space was specifically designed and is currently configured to accommodate a credit union. The retail space was initially designed and outfitted as a credit union at a cost of $48,000. This amount includes the installation of custom cabinetry and specialized electrical work for the staff work stations. The cost of removing the millwork and cabinetry, painting and patching the walls, repairing the carpet, and rerouting the electrical wiring is estimated at $5,000.00. Moreover, removing the fixtures and millwork installed for a credit union or financial services tenant will require City approval, in accordance with the initial Request for Proposal (RFP) for the retail space issued in January 2013. The RFP stipulates that any further improvements or modifications to the space need to be consistent with the architectural specifications of the new Civic Center. Reconfiguring the space is conservatively estimated at $20,000. The project would include graphics, paint, display cases, and secure art hanging hardware. Finally, additional costs for insurance will be incurred, as will staff costs. LEASE TERMS Below is a summary of the proposed terms of a lease agreement with Credit Union of Southern California: • Premises: 579 square feet of retail space, located on the second floor in the Central Library. • Term: 5 -year initial term, with two additional 5 -year extension options. Options must be approved by City. ME • Rent: $21,000 per year (based on market rate of $3.00 per square foot per month), adjusted annually upon the effective date by 3%. • Rent Commencement: No later than 30 days from the delivery date, or the first day they are open for business, whichever occurs first. This 30 day window allows them a short time to construct any improvements (i.e. install an ATM), and move into the space before rent commences. • Hours of Operation: Tenant shall be open to the public during the following hours — Monday through Friday 9:00 am to 6:00 pm, Saturday 9:00 am to 1:00 pm, Sunday Closed. • Parking for Employees: Tenant is limited to two (2) non-exclusive parking spaces in the parking structure, at level two or above. • Utilities/Taxes: Tenant is responsible for their pro -rata share of building utilities (trash, water/sewer, electricity), must obtain their own telephone and data accounts, and must pay any Possessory Interest that may be assessed. • Alterations: Tenant Improvements must be compatible with the existing improvements and design of the building, must be approved in writing by the City, and must be permitted as required by the City's municipal and building codes. Construction of tenant improvements must not interfere with operation of the Library, and must be performed on non -holiday weekdays. • Maintenance: Tenant must maintain the premises in good condition, and must keep it presentable to the public and library patrons, clean and free of trash/debris. • Insurance: Tenant must provide and maintain insurance coverage for their operations and use of the facility, in an amount and form acceptable to the City's Risk Manager, and name the City as additional insured. • Assignment/Subletting: Tenant may not, without City's written consent, voluntarily assign or sublet the premises. These terms are with the City Attorney's Office to be drafted into a lease agreement, and will then go to CUSC for review and comment (possibly further negotiation) before the agreement goes to the City Council for review and approval, therefore they are subject to change, and/or further clarification. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Arts Commission considers the item). C •E Attachment CC 4 CITY OF NEWPORT BEACH Board of Library Trustees Meeting Minutes June 15, 2015 — 5:00 p.m. CONVENED AT 5:00 p.m. at the Corona del Mar Branch Library 1) CALL MEETING TO ORDER — Vice Chair John Prichard called the meeting to order. 2) ROLL CALL — Roll call by Vice Chair John Prichard Trustees Present: Vice Chair John Prichard, Secretary Eleanor Palk, and Jerry King Trustees Absent: Chair Robyn Grant, and Jill Johnson -Tucker Staff Present: Library Services Director Tim Netherton, Library Services Manager Dave Curtis, Administrative Support Specialist Elaine McMillion, Support Services Coordinator Melissa Kelly, Youth Services and Branch Coordinator Debbie Walker, Adult Services Coordinator Natalie Basmaciyan, Principal Civil Engineer Fong Tse, Deputy Public Works Director Mark Vukojevic, Fire Chief Scott Poster, City Council Member Scott Peotter 3) PUBLIC COMMENTS Vice Chair John Prichard invited public comments. There was no response and Vice Chair Prichard closed public comments. 4) APPROVAL OF MINUTES — Draft May 18, 2015 Minutes Motion made by Secretary Palk and seconded by Trustee King and carried (3-0-0-2) to approve the minutes of May 18, 2015, as presented. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson -Tucker 5) CURRENT BUSINESS A. CONSENT CALENDAR 1. Customer Comments - Monthly review of evaluations of library services through suggestions and requests received from customers. 2. Library Activities - Monthly update of library events, services and statistics. 3. Expenditure Status Report - Monthly expenditure status of the Library's operating expenses; services, salaries and benefits by department. 4. Board of Library Trustees Monitoring List - List of agenda items and dates for monthly review of projects by the Board of Library Trustees. Motion made by Trustee King and seconded by Secretary Palk and carried (3-0-0-2) to approve the Consent Calendar, as presented. N Board of Library Trustees Meeting Minutes June 15, 2015 Page 2 AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson -Tucker B. ITEMS FOR REVIEW AND POSSIBLE ACTION 1. Corona del Mar Branch Proiect Update —Staff will provide the annual update on the Corona del Mar Branch services. Youth Services and Branch Coordinator Debbie Walker provided a presentation addressing a general history of the facility, a "Village feel" identity, demographics, registered members, availability of the report on the City's website, budgeting, adoption of the service model, media circulation, materials collections, children's programming, staffing, new areas for seating and keeping the children's area large to accommodate programs. Brief discussion followed regarding tracking attendance at meetings and programs. 2. Corona del Mar Branch Project Update —Kelley Needham of WLC Architects and Public Works staff will present layouts and receive public input for the Corona del Mar branch project slated for construction in spring 2017. City Engineer/Deputy Public Works Director Mark Vukojevic provided an update on the Corona del Mar Brand project addressing public input and incorporating them into four different concept plans for consideration at this time that can be found at, http://www.newportbeachca.gov/trending/proiects- issues/corona-del-mar-library-fire-station . He introduced and deferred to Kelley Needham, WLC Architects, for a presentation. Mr. Needham provided details of each of four options including changes that were incorporated after the last Board meeting. He addressed restrooms, the lobby and entrance, children's area, storage areas, accommodating strollers, the current and proposed square footage, interior and exterior areas, reductions in square footage, changing the entrance location, and divisions between the adult and children's area. Mr. Needham addressed parking, consideration of a two-story option and parking for deliveries. Discussion followed regarding the need to demolish the existing building, ceiling heights, the possibility of having a loft, dedicated staff parking, staff opinions and recommendations, attempts to accommodate all users, reasons why the Fire Department needs a larger footprint, the number of Fire Fighters stationed at this location and landscaping versus parking. It was noted that staff will continue to work with the architect to ensure that the communities concerns are addressed. The renderings will be added to the website for accessibility by the public. RECESS/RECONVENE Staff called for a recess to allow the public to review renderings. The assembly reconvened with all Members, present, except Chair Robyn Grant, and Jill Johnson - Tucker. Discussion followed regarding the proposed architectural style and fagade, the need to make it look like a public building while blending with the community, the patio offering architectural relief, consideration of the designs by the Fire Department, costs, difference between the options presented, the total budget for the project and the possibility of building the Rex Brandt mural into the library. NP Board of Library Trustees Meeting Minutes June 15, 2015 Page 3 Arlene Greer, Vice Chair of the City Arts Commission, provided a brief description of the Rex Brandt mural. She addressed the size, medium and colors of the mural. Brief discussion followed regarding library parking. City Engineer/Deputy Public Works Director Mark Vukojevic addressed next steps including additional public meetings. 3. Financial Report Comparison of Beginning Budget to End of the Year Amended Budget - Staff will report on Budget Amendments for Fiscal Year 2014-2015. Support Services Coordinator Melissa Kelly provided details of the staff report noting that most of the amendments were related to donations. She addressed allocations to the Literacy Program and offered to respond to questions. Motion made by Secretary Palk and seconded by Trustee King and carried (3-0-0-2) to propose amendments to the Fiscal Year 2014-2015 Budget as discussed and presented. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson -Tucker 4. Retail Space on the Second Floor Expansion — Staff will request that the Board of Library Trustees recommend to City Council that the retail space on the second floor expansion be leased by Credit Union of Southern California. Further information regarding the proposal, including the terms of the lease will be provided. Library Services Director Tim Netherton provided a report and addressed details of the lease. He noted the attendance of Dave Gunderson, a representative of the Credit Union of Southern California and deferred to him for a presentation. Mr. Gunderson stated they would be honored to open a branch in Corona del Mar and noted they are merging with the City Employee's Credit Union. He provided information regarding the organization and the services they offer. He addressed issues that differentiate the organization from others and commented on who can become a member of the credit union. He noted they are supportive of the community, especially, non-profit organizations and commented on plans to support the library. Credit Union representative Michelle Hunter spoke regarding free financial services offered to members and provided information regarding hours of operation. Discussion followed regarding the timeline for integration and approval. Motion made by Trustee King and seconded by Secretary Palk and carried (3-0-0-2) to recommend to City Council, that the second -floor expansion be leased, including the terms of the lease, to Credit Union of Southern California. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson -Tucker 5. Donation Acceptance for the Library Literacy Program — Staff recommends the Board of Library Trustees accept a donation from the Schulein Family Donor Advised Philanthropic Fund. If accepted, the $500 donations will be allocated into operating accounts for Literacy. Board of Library Trustees Meeting Minutes June 15, 2015 Page 4 Vice Chair John Prichard presented the item for consideration. Motion made by Trustee King and seconded by Secretary Palk and carried (3-0-0-2) to accept a donation from the Schulein Family Donor Advised Philanthropic Fund. If accepted, the $500 donations will be allocated into operating accounts for Literacy. AYES: Prichard, Palk, King NOES: None ABSTENTION: None ABSENT: Grant, Johnson -Tucker C. MONTHLY REPORTS - No written reports created prior to the Board of Library Trustees Meeting 1. Library Services Director Report - Report of Library issues regarding services, customers and staff. Library Services Director Tim Hetherton addressed approval of the budget, a recent literacy event and the Library Foundation's Bunnies and Books program. 2. Friends of the Library Liaison Report - Trustee King's update of the most recently attended Friends of the Library Board meeting. Trustee King commented on the recent Annual meeting of the Friends of the Library and commended volunteers who helped make it a successful event. 3. Library Foundation Liaison Report —Trustee Johnson -Tucker's update of the most recently attended Newport Beach Public Library Foundation Board monthly meeting. No report, as Trustee Johnson -Tucker was absent. 4. Witte Lectures Committee Liaison Report -Secretary Palk's update of the most recently attended Witte Lectures Committee's monthly meeting. Vice Chair Prichard reported on the recent Witte Lecture Committee's meeting and lecture series, and addressed issues discussed at same. He announced an upcoming retreat and noted items that may be discussed during the event. 6) BOARD OF LIBRARY TRUSTEES ANNOUNCEMENTS OR MATTERS WHICH MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON - DISCUSSION ITEM) - None 7) PUBLIC COMMENTS ON NON -AGENDA ITEMS A member of the public spoke regarding the possibility of engaging in fundraising efforts to expand and build out the Corona del Mar Branch Library. 8) ADJOURNMENT -6:25 p.m Vice -Chair Approval of Minutes •. Board of Library Trustees Meeting Minutes June 15, 2015 Page 5 9-95 ATTACHMENT CC 5 ol �� _-z OITJJ s It's A1■Ili 9-97 lRall no 4 Rol SXpE THE& 04' �> Q to CU SoCal 4 Welcome to Credit Union of Southern California (CU SoCal). The southern N California life is outside, in the mountains, on the beach, cruising along a freeway. We go beyond what's expected and won't settle for ordinary. We're honored you've chosen us as your financial partner and look forward to serving you! At CU SoCaI, Members are our number one priority. Our tradition of Building Better Lives Through World -Class Service and Convenience since 1954 is apart of our everyday culture. There's a story behind every Member -Owner's face. It's our commitment to know your story and to make a positive difference in each chapter of your life. World -Class Service. By choosing CU SoCal, you'll receive many of the financial products and services offered elsewhere, but with one important difference—World-Class Service. We only hire caring people who love making a positive difference in Members' lives and we personally answer your calls so there are no extensions to dial or phone trees to weed through. Convenience. CU SoCal Members receive the same conveniences offered by big banks including Mobile Banking, Mobile Bill Pay, Apple Pay— and Mobile check deposits. Plus, you have access to 10,000 more free ATMs than the largest bank, thousands of shared branch locations worldwide, Saturday hours, Home Banking and Bill Pay, account alerts, and 24-hour telephone account access. Call, click, or come by to access your funds anytime, anywhere. Safety and Sound n eSS. Protecting our Members' privacy is very important to us. We maintain a strict confidentiality policy to protect not only your financial assets, but your personal information as well. Plus, CU SoCal has a superior, 5 -star financial rating from BauerFinancial, employs prudent loan practices, and maintains a strong net worth. Members'savings are federally insured through the National Credit Union Administration (NCUA), a U.S. Government agency, to at least $250,000 and backed by the full faith and credit of the United States Government. Care for Community. We live and work in the same neighborhoods you do and strive to build strong, vibrant communities. Each year we're honored to volunteer our time and contribute financially to help those in need. Guidance. As your financial partner, we are happy to provide free financial guidance and educational classes. Rest assured that you will always receive the very best from your team at CU SoCal. Again, thank you for entrusting us with your financial needs and for making CU SoCal a part of your life's next chapter. 562.698.8326 1 866CUSoCal-866.287.6225 I CUSoCal.org 0 .s� M ` Because of my positive experience, I have my primary checking account at CU SoCal and recommend the credit union to others. Thank you, CU SoCal, for restoring my faith in great customer service. —Veronica of Whittier free checking' ,ttiti1111pitiiilllll.V with eStatements Access io,000 more FREE ATMs than the largest bank! Find thousands of shared o branch locations worldwide. E -Z Earn Checking' %.., "etc" ■ Higher dividends earned with 10 check card transactions per statement period 0' ■ No monthly paper statement fee with eStatements ■ No minimum or maximum balance requirement after initial minimum $100 deposit ■ FREE unlimited check writing ■ FREE Visa" Debit Card ■ FREE e5ervices—eStatements I Mobile Banking I Online & Mobile Bill Pay I Mobile eDeposit Apple Pay" ■ FREE unlimited transactions at CO-OP Network and CU SoCal-owned ATMs VALUE Checking' ■ No monthly paper statement fee with eStatements ■ No minimum balance requirement ■ FREE unlimited check writing ■ FREE Visa® Debit Card ■ FREE e5ervices—eStatements I Mobile Banking I Online & Mobile Bill Pay I Mobile eDeposit Apple Pay" ■ FREE unlimited transactions at CO-OP Network and CU SoCal-owned ATMs VALUE+ Checking' ■ Competitive tiered dividends earned on balances of at least $5,000 ■ $15,000 combined savings and loan balances required ■ No monthly paper statement fee ■ No minimum checking account balance requirement ■ FREE unlimited check writing ■ FREE Visa® Debit Card ■ FREE e5ervices—eStatements I Mobile Banking I Online & Mobile Bill Pay Mobile eDeposit Apple Pay" ■ FREE unlimited transactions at CO-OP Network and CU SoCal-owned and foreign ATMs (non -CO-OP ATMs)' ■ FREE corporate image design checks (two boxes per year) Overdraft Protection Occasionally, the plot to your life's story thickens and you may need a little help. With CU SoCal's Overdraft Protection, we'll transfer funds from your savings, Money Market, or line of credit when you don't have money available in your checking account to cover a check or debit transaction. Order Checks ■ Call toll-free during business hours; 866 CU SoCal (866.287.6225) ■ Order online at CUSoCal.org, log onto Home Banking, click on Check Services, then Check Order ATM Card Available free with any CU SoCal Checking or Savings Account ■ 24/7 access to checking and savings through point-of-sale transactions ■ Cash back at most merchants and through ATMs displaying STAR®, Cirrus" or CO-OP" logos Visa" Debit Card Available free with any CU SoCal Checking Account i Access your funds 24/7 and make purchases at millions of locations worldwide that accept Visa"Debit Cards. ■ Easily get cash back at most merchants and through ATMs displaying CU SoCal, STAR", Cirrus", or CO-OP® logos ■ Make secure online purchases that are automatically deducted from your checking account A$2paperstmement mi be waived for Value+ Members, Memberswho are 17 years of age and younger or 6r,wers of age and better, and for Members who have signed up for e5tarements by the last day of the month during the statementperiod.Otherwise, a 52 monthly fire will beappliedmthe pdmarysavings account, If funds are unavailable in your primary savings account, the ft, will hetransferred to thatacmuntfmm your mortuary cavi rgs, checking, or money market account. For Members without a primary savings ount,the fee will be applied to your checking account or money market account. ' All accounts will beveril through ChevSystems• and are subjectto approval. 'Other financial institutions may Impose a surcharge at foreign ATMs (non -CO OP ATMs). CU SoCal does not charge Value+Members foreign ATM fees, \\ \\ iOATM NCUAinsured Federally by NCUA =OOP gOP sgro..... ,RA. ........ 562.698.8326 1 866CUSoCal-866.287.6225 I CUSoCal.org 9-100 Ll i A It I'd like to express my gratitude for the excellent service and consistent personable, cheerful, professional, organized, and helpful representatives at CU SoCal. —Stan from Pico Rivera relationship rewards We value the trust and relationship we have with our Members. That's why we offer a relationship rewards program called Value+. The Value+ Program rewards you for maintaining a combined loan, savings, and checking account balance of $15,000 or more with CU SoCal. Value+Membership Benefits ■ FREE ATMs. Enjoy unlimited free withdrawals, transfers, and inquiries at CU SoCal and non -CU SoCal ATMs' Higher Certificate Rates. Earn a.10% higher rate on most CU SoCal Certificates2 Earn Dividends. Earn competitive dividends with a Value+Checking Account' Lower Loan Rates. Get a .25% rate discount on most consumer loans° FREE Checks. Receive two free boxes of corporate -image checks per year AND get a free order of twelve temporary checks every twelve months ■ Fees Waived. • No Holiday or Summer Saver Account withdrawal fee • No savings account maintenance fee (usually incurred if your aggregate savings and loan balance is less than $300 and if you have no other CU SoCal product or service) • No overdraft transfer fee for transfers made by check, point of sale, check card, or Automated Clearing House (ACH)' No cashiers'check, gift check, money order, or traveler's check fees" No outgoing domestic wire fees 'Non -CU SoCal surcharge may be imposed at non{y Sical ATMs and will be disclosed. at the ATM. 'Valid on any term and on certificate renewals. Not valid on Access Certificate. sAll new accounts will be verified through Ch 6,,b ms• and are subject to approval. Consumer loans do not include lines of credit Visa cards, or mortgage loans. sLimit six per month fiom savings per Regulation D. °One signature traveler's checks. Federally _NCUA insured by NCUA 9-102 I� r YYF •�! k 1 ,r ' c - ` wll�'J,Ifi i3► - -- .1 investment services Creating your own happy ending starts with a plan! Plan today for retirement, educational expenses, or other financial goals. Find many investment choices through our valuable partner, CUSO Financial Services, L.P. (CFS).' ■ Financial Planning Services ■ Bonds and ETFs ■ Individual Retirement Accounts (IRAs) ■ Long Term Care Insurance ■ Variable and Fixed Annuities ■ Life Insurance ■ College Savings ■ 401(k), 403(b), and 457Tax-Sheltered Accounts ■ Mutual Funds ■ Retirement Planning ■ Stocks ■ Pension and Retirement Plan Rollovers2 The Financial Advisors at CU SoCal, are registered through CFS, a broker dealer, and are available for a complimentary introductory meeting. Call 562.698.8326, 866 CU SoCal (866.287.6225) toll-free, or visit CUSoCal.org to schedule your complimentary consultation. 1 Non-depositinvenment productsand services are offered throughCU50 Financial Services, LR CUS"Oregistered broker-dealer(Member FIMWSIPQ and SEC Registered Investment Advisor. Products offered through US are not NCU"CUSIF or otherwise federally Insured, are notguarantees or obligations ofthe credit union, and may Involve Investment risk Including possible Ion of principal. Investment Representatives are registered through CFS. Credit Union ofSouthem California has contracted with US In make non�deposd Investment products and services available to credit union Members. 2 Before deciding whether to retain assets In an employer sponsored plan or unit over to an 11M an invertor should consider various factors including, but not limited to: investment options, fees and expenses, services, wtV dmwal penalties, protection from creditors and legal judgments, required minimum distributions, and possessionofemployerstock. savings Life is not a race, but a journey to be savored each step of the way. At CU SoCal, you can expect a script written for a happy ending. CERTIFICATES—Terms from 1 to 60 months ■ Rate bonus available to Value+ Members on most certificates ■ Dividends paid monthly MINOR CERTIFICATES—Terms from 12 to 60 months "All days are not the same. Save fora rainy day. When you don't work, your savings will workforyou." M.K. Soni ■ For Members age 21 and younger ■ $250 minimum deposit to open; additional deposits can be made anytime during the term ACCESS CERTIFICATES—Term of 6 months ■ Unlimited deposits and penalty -free withdrawals (transaction limitations per Regulation D') ■ Minimum $15,000 balance required COVERDELL EDUCATION SAVINGS CERTIFICATE—Term of 12 months ■ $25 minimum deposit to open ■ Annual contributions may be made for each child under the age of 18 ■ Contributions are made with after-tax dollars; maximum contribution limits apply ■ Withdrawals may be tax free if used for qualified education expenses; other factors may apply ■ Funds must be distributed by age 30 HOLIDAY SAVER'—For Members wishing to save for holiday expenses ■ Earn higher dividends than with a traditional savings account ■ $10 to open and $10 monthly minimum electronic deposit ■ Penalty -free withdrawals from November through February' IRA—TRADITIONAL—Terms from 12 to 60 months ■ $25 minimum deposit to open ■ Unlimited contributions throughout the term ■ Contributions may be fully or partially tax deductible, depending upon income IRA—ROTH—Terms from 12 to 60 months ■ $25 minimum deposit to open. ■ Unlimited contributions throughout the term ■ Contributions aren't tax deductible, but withdrawals after age 59 Yz are tax free 4 if funds have been in the account at least five years; other factors may apply MONEY MARKET' f ■ Earn higher (tiered) dividends than with a traditional savings account ■ $2,500 to open and $2,500 daily balance to earn competitive dividends ■ No monthly fees SHARE SAVINGS'—Traditional Savings Account ■ $10 minimum opening deposit ■ Earn dividends with only a $500 minimum daily balance ■ Open as many as nine different sub -savings accounts SUMMER SAVER'—For Members wishing to save for the summer months ■ Earn higher dividends than with a traditional savings account ■ $50 to open ■ Penalty -free withdrawals from June through September' ' Regulation D allows a maximum of six withdrawals or transfers to be made from your non -transaction accounts per month. ' $25 fee for withdrawals from March through October for Value Members (Members with combined savings and loan amounts less than $15,000). ' $25 fee for withdrawals from October through May for Value Members (Members with combined savings and loan amounts less than $15,000). Federally _NCUA insured 562.698.8326 II 866 CU SoCal-866.287.6225 I CUSoCal.org by NCUA 9-104 a 6 It I've been a Member for more than 25 Years and appreciate the stability, voice of reason, and flexibility that CU SoCal offers me and my family. —Teri from Brea eSe rvi ees & convenience Simplify your life. Focus on what adds laughter and memories to your story. Safely and conveniently access your accounts on Your schedule. CU ONLINE"—FREE Home Banking ■ View balances, account history, and check images, or reorder checks ■ Transfer between any deposit and most loan accounts ■ Request withdrawals and loan advances ■ Set up budgets and easily create charts and graphs to see where your money goes ■ Create custom alerts to be delivered by email or text ■ Securely transfer funds to and from CU SoCal and other financial institutions ePAY—FREE Online Bill Pay ■ Safely and securely pay bills with one-time, recurring, or periodic payments ■ Avoid late fees with automatic payments ■ View billing history ■ Set up new payees quickly and easily—choose from hundreds of preset merchants or create your own r; eSTATEMENTS—FREE ■ View your statements as early as the first of each month ■ Print your statements any time ■ Eliminate paper clutter ■ Access archived statements instantly (no age limit on archived statements) ■ $S Membership fee waived "I love that I can pay bills, deposit checks, view transactions, and check my account balances on my cell phone with Mobile Banking." —Monica, Brea MOBILE BANKING—FREE Go to m.CUSoCal.org on your smartphone's web browser to: ■ Review your account balances and transactions, deposit checks, make transfers, pay bills, and locate nearby FREE ATMs or shared branches ■ Download CU SoCal's free Mobile Banking app ■ Pay securely using Apple Pay' at more than 200,000 participating merchants nationwide ■ Have peace of mind with top security features to safeguard your personal information PHONETELLER—FREE Phone Access Access accounts toll-free to manage: ■ Account balances ■ Withdrawals and transfers ■ Cleared check verification ■ Account transactions and more ATMs -10,000 more FREE ATMs than the largest bank ■ Visit CUSoCal.org, or call toll-free 866 CU SoCal (866.287.6225) ■ Text your location from your smartphone to 692667 (MyCOOP) or download the database to a GPS device at co-opnetwork.org SHARED BRANCHES CU SoCal shares branches with other credit unions so you can conduct financial transactions where you live, work, or travel. ■ Visit CUSoCal.org, m.CUSoCal.org on your smartphone, or call toll-free at 866 CU SoCal (866.287.6225) 562.698.8326 1 866CUSoCal-866.287.6225 I CUSoCal.org 9-106 A& A/\\ COOP CO-OP ATM AFSHARED BRANCH 562.698.8326 1 866CUSoCal-866.287.6225 I CUSoCal.org 9-106 What's your dream? Taking a long-awaited trip to a faraway place? Making little moments magical? Priceless experiences are what make your fantasy your biography. home loans MORTGAGELOANS ■ 10-, 15-, 20-, or 30 -year fixed-rate terms ■ Adjustable -and fixed-rate financing ■ No Cost, No Kidding Refinance Loan' ■ 3% down payment option ■ Jumbo financing available ■ Fast loan pre-approva13 ■ Cash back real estate program ■ Flat $995 lenderfee on most loans HOME EQUITY LINE OF CREDIT (HELOC) ■ 2.95% APR for the first 12 months ■ Interest only payments for first 10 years ■ No points, no up -front costs' ■ HELOC-75 ($250,000 limit), HELOC-80 ($150,000 limit), HELOC-90 ($100,000 limit) ■ A fully indexed rate of Prime plus 0.000//66 on our HELOC-80 HOME EQUITY LOAN ■ Available for up to 80% of your homes combined loan - to -value (CLTV) ratio from $10,000 to $150,000; 75%CLTV up to $250,000' ■ Affordable terms up to 25 years ■ Possible tax deduction (see your tax advisor) ■ Acceptable properties include single family, and two-, three-, or four -unit properties (as long as one unit is occupied by Member -Owner) ■ Vacation home programs available ■ Properties with construction work in progress will not be eligible Contact a helpful Mortgage Loan Consultant today at 1.800.698.7196. CU SoCal is an equal housing lender Members must credit qualify. NMLS 8454708 ul consumer loans PERSONAL—Signature Loan ■ A fixed-rate, unsecured personal loan ■ Loans from $500 to $25,000 ($25,000 maximum unsecured aggregate) ■ Terms up to 60 months ■ No prepayment or application fee PERSONAL—Line of Credit ■ A revolving, unsecured line of credit ■ Use as overdraft protection for your CU SoCal Checking ■ Credit limit up to $25,000 ($25,000 maximum unsecured aggregate) ■ Access via ATM, Home Banking, mail, in person, or phone ■ No prepayment or application fee PERSONAL—Certificate Secured ■ Loan amounts up to 95%of available certificate balance ■ Flexible repayment terms based on certificate maturity ■ No prepayment or application fee PERSONAL—Share-Secured ■ Loan amounts up to 95% of available share balance ■ Terms up to 120 months ■ No prepayment or application fee 'Far qualifying refinance transai under this program, a lender's credit is d&dosed on the Good Faith Estimate to offset origination and third -party fees. Eligible loan amounts from 5200,000 to $417,000 on owner occupied properties only. Maximum loan to Value IQV) up to 7096 afthe combined loan value for rate and rema refinance. Must have a minimum credk score of 743.Owner-occupied primary residence only .'Maximum LTV up to 91 Proper submission ofyour income, as well as asset documentation is needed for pre -approval. Offers shown are subject to change anytime without notice and are not intended to be inclusive or a commitment to the pricing for which you may qualify. Actual frothy will be based on credit history, LTV, occupancy, property type. Icon amount, loan purpose, and Income/financial obligations' APR—Annual Percentage Rate. Rate is subject to change without notice, and adjusts quarterly after the first 12 months. `Member does NOT pay lender costs. Early closure cost imbursement tithe HELOC is closed within 36 months of the open date, the Member will reimburse CU SoIAl all closing costs. Acceptable properties include single family, condominium, and two-, three-, or four -unit properties (as long as one unit is occupied by Member). °The rate is tied mthe Prime Rate Index Rates may adjust quarterly with a minimum door rate of and a maximum rate of 16%. 'Estimated payment per S1,W8 borrowed is 58.34. 9-107 loans vehicle loans ■ Up to 100% fixed-rate financing on new autos with terms up to 84 months and used autos with terms up to 72 months ■ Up to 80% fixed-rate financing on new boats and trailers with terms up to 120 months IN Up to 80% fixed-rate financing on new motorcycles with terms up to 60 months IN Up to 80% fixed-rate financing on new or used RVs and motor homes, with extended terms available ■ Classic car loans are available IN Loans include tax, license, document fees, and extended warranty ■ No prepayment or application fee DISCOUNTS—Driving rates down Lower your vehicle loan rate with a variety of options. ■ 1/4% discount for Value+Members ■ 3/40/0 discount for Auto -Pay from or direct deposit to a CU SoCal Checking Account or if you're a CU SoCal Memberfor 10+ years with a CU SoCal Checking Account credit cards CU SoCal Visa®—CLASSIC ■ Non -variable, low annual percentage rate (APR), no annual fee, no fee for cash advances or balance transfers' ■ 2.99% APR fixed intro rate on balance transfers' ■ Auto rental insurance and roadside dispatch ■ Personalized dispute assistance ■ Make convenient purchases at more than 15 million merchants worldwide CU SoCal Visas—PLATINUM offers additional benefits ■ Annual cash rebate program' ■ Non -variable, low APR, no annual fee, no fee for cash advances or balance transfers' ■ 2.99% APR fixed intro rate on balance transfers' ■ Auto rental insurance and roadside dispatch ■ Personalized dispute assistance ■ $500,000 travel accident insurance ■ Emergency travel services CU SoCal Share -Secured Visa® Credit Card' ■ A credit limit up to 95% of your share - secured balance ■ Plus all the advantages of our Visa® CLASSIC 562.698.8326 1 866 CU SoCal-866.287.6225 I CUSCICal.01 Our friendly loan officers will help you get the funds you need to make your loan protection fantasyyour biography. programs ""'///„/,/,ll,II111111111111111\\\\\\\vtv"`s` Debt Protection Debt Protection coverage provides financial and credit rating protection in the event of death, disability, or involuntary unemployment. Debt Protection is similar to traditional credit life and disability products, as it helps to protect you against a broader range of events. Mechanical Repair Coverage—(MRC) Our MRC is very similar to the extended warranty service offered at an auto dealer; however, our program is usually less expensive. Most major repairs are covered by licensed mechanics. Guaranteed Asset Protection—(GAP) If your vehicle is stolen or totaled in an auto accident, your insurance settlement may not pay the full balance of your auto loan. CU SoCal can help ensure that you're fully covered by financing GAP into your auto loan. commercial lending Lower your monthly payments and maximize the return on your investment with terms up to 15 years and amortization up to 30 years. ■ Loan amounts up to $8,000,000 ■ 5 to 15 -year fixed- and adjustable-rate programs ■ Blanket loans available ■ Single-family residences, duplexes, triplexes,fourplexes Apartment buildings—including garden, mid -rise and high-rise 'Offervalid only on non -CU SoCal balance transfers and does not applyto purchases. Members must ,im itqualify. Maximum total transfer amount Is limited to yim,approvel credit Him. Offer can expire at anytime without notice. Balance transfers within the promotional period will be at 399%fixed Intro APR for 13 months with a corresponding monthly periodic rate of 249% from the data they are posted to the account. After that the rate will change to gout non -variable APR. We may end your introductory APR if your account is delinquent 60 days in, more. Promotion rate applies to Visa Platinum and Classic Cards. Cash rebate program does not apply to balance transfers or cash advances.'A I%annual cash rebate will be paid on your anniversary date on accumulated purchases of more than $1,500 and does not apply to balance transfers or cash advance%'Pledge of Slmmsan order to secure gout obligation% you must keep on deposit the requned amount in your regular share acmunho until you repay your loan or your account is converted from a"Share-Secured Visa. -If you default we may apply [hese shares to pay the balance. • 1: MEMBERSHIP APPLICATION Southern of We welcome anyone who lives, works, worships, or attends school in Orange County, Southern California Los Angeles County, as well as Chino, Chino Hills, Ontario, and San Bernardino. Your BUILDING BETTER LIVES family is welcome to join. Eligible family Members include your spouse, children, parents, siblings, grandparents, grandchildren, stepparents, stepchildren, and stepsiblings. am: ❑ Anew Member ❑ Making a change to my current account To become a CU SoCal Member, complete the application below and sign where indicated. Enclose a check or money order for your one-time $15 Membership fee ($10 Membership Par Value plus $5 Membership fee; fee is waived with eStatements), the minimum deposit required for requested accounts, and a copy of your driver's license or state ID for primary and joint owners. Then securely seal these documents and bring to a branch or mail to CU SoCal. Please sign me up for: ❑ Money Market ❑ ATM/Debit Card Please contact me for: ❑ Savings ❑ Certificate/Access Certificate ❑ CUOnUne-eServices ❑ Fixed/Adjustable Mortgage loan ❑ Summer/Holiday Saver ❑ FREE Checking with eStatements ❑ PhoneTeller ❑ HELOC/Home Equity loan O Value O Value+ O E -Z -Earn ❑ other 9&911�;IO K21 r111 J Primary Member Name (print) Social Security I EIN # Joint Member Name (print) Social Security / EIN # Physical Address City State Zip Physical Address City Slate Zip Mailing Address (If different) CRY State Zip Mailing Address (if different) City State Zip Home Phone Business Phone Cell Phone Home Phone Business Phone Cell Phone Date of Birth Driver's License # I ID # Mother's Maiden Name Date of Birth Driver's License # I ID # Mother's Maiden Name Employer Current Position Employer Current Position Email Address Emall Address (Pay -on -Death Payee) In the event of my death and if all otherjoint owners predecease me, I hereby designate the persari whose name appears below as my beneficiary to receive any and all amounts in this account. Name of Beneficiary 1 Relationship to Member Address City State Zip Name of Beneficiary 2 Relationship to Member Address City State Zip "If more than one Beneficiary is named, amounts will be divided equally among all Beneficiaries. ' r ' ' ' • Checking account overdrafts will be covered by a transfer' from (you may choose from a savings, checking, money market or line of credit account), Overdraft options will also apply to electronic (ACH) transactions, 1. FROMAccount# JQAccounl# Account ID Loan ID 1, FFROMAccount# TOAccount# Account ID Loan ID "NOTE: Regulation D limits the number ofwid drawals on ran -transaction accounts each month. Amaximum lotal of six (6) pre-zWtnized share transfers mayoccur during a calendar manth. IF no funds are available, we may cover your transaction using CU SoCal Courlmy Pay Service. Afae may be charged for this service if no funds are available, item(s) will be returned unpaid. rr I hereby apply for Membership in Credit Union of Southern California (CU SoCa ft. By signing below, I acknowledge that I have received a copy of CU SoCal's Truth -in -Savings Disclosure and agree to be bound by its by-laws and any amendments thereto. I acknowledge that I have received a copy of the current Schedule of Fees. I authorize CU SoCal to obtain credit reports in connection with this account and any future credit opportunities. I authorize CU SoCal to open other accounts for me in person, as instructed in writing or per my telephone request. I certify under penalty of perjury that (1) the Social Security Number or Employer Identification Number (EIN) above is my correct tax identification number, (2) 1 am NOT subject to backup withholding because (a) I am exempt, or (b) I have not been notified that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) 1 am a U.S. person (including a U.S. resident alien). You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest or dividends on your tax return. The IRS does not require your consent to any provisions of this document other than the certifications to avoid backup withholding. X x Member Signature Joint Owner Signature Date Membership approved by Date Signature User ID New Account Number ID Issue Date Exp. Date Membership Officer Initials P.O. Box Zoo, Whittier, CA go6o8 II 866CUSoCal-866.287.6225 11 info@CUSoCal.org I CUSoCakorg 9-109 The Credit Union Difference. For People. Not Profit. Our nation's credit unions have helped American families live better lives and embrace democratic principles for more than seven decades. During the Great Depression, many struggling citizens found financial relief and security in credit unions. It was said that many were thankful during those tough times, that credit unions were "Not for Profit, Not for Charity, But for Service." This "People Helping People" philosophy still holds true today. Does this sound different from other financial institutions? That's because credit unions are different. Unlike most other financial institutions that pay dividends to outside stockholders, credit unions return earnings to Member -Owners in the form of competitive rates, lower fees, and new or improved products and services. As a new Member, you join many colleagues and neighbors who already know the CU SoCal difference. The credit union that began in 1954 JWW is now more than 77,000 Members strong, has more than $977 million in assets, and serves those in need with its own charity, CU SoCal Helping Hands. CU SoCal doesn'tjust exist to provide financial services—we provide financial services with World -Class Service for the purpose of Building Better Lives. 110 Contact Us Telephone Service Center Toll-free Local PhoneTeller Toll-free Local Monday -Friday, 9 a.m.-6 p.m. Saturday, 9 a.m.-1 p.m. 866 CU SoCal 1866.287.6225 562.698.8326 Free 24-hour account access 800.249.2328 toll-free 562.945.2214 local Mail P.O. Box 200, Whittier, CA 906o8 Fax 714.990.5492 Email info@CUSoCal.org Mobile Banking m.CUSoCal.org Website CUSoCal.org Branches 9o1 E. Whittier Blvd. ALHAMBRA COVINA goo S. Fremont Ave.(Mezz.) 1404 N. Azusa Ave. Monday-Thursday:8a.m.-5p.m. Monday-Friday:9a.m.-6p.m. Saturday: 9 a.m: 1 p.m. ANAHEIM BROOKHURST 801 S. Brookhurst St. Monday -Thursday: 8 a.m.-4:30 p.m. Friday: 8 a.m.-5 p.m. STATE COLLEGE 1475 S. State College Blvd., Suite loo Monday -Friday: 8:3o a.m.-4 p.m. EL MONTE 11024 Concert St. Monday-Friday:9 a.m.-6 p.m. FULLERTON 230W. Wilshire Ave. Monday -Friday: 9:3o a.m.-5:30 p.m. Saturday: 9 a.m.-1 p.m. BREA GARDEN GROVE 250o E. Imperial Hwy., Suite 170 11390 Stanford Ave. Monday-Friday:9a.m: 6p.m. Monday -Friday: 8:30 a.m.-4p.m. Saturday: 9 a.m.-1 p.m. LA HABRA CITYOFINDUSTRY 9o1 E. Whittier Blvd. 17871 Colima Rd. Monday -Thursday: 9:3o a.m.-5:30 p.m. Monday-Friday:9 a.m.-6 p.m. Friday: 9:3o a.m.-6 p.m. Saturday 9a.m:l p.m. Saturday: 9:30 a.m.-1:30 p.m. Free ATMs & Shared Branches TEXT 692667(MYCOOP) with your location—ATMs only DOWNLOAD FREE APP Visit m.CUSoCal.org from your smartphone VISIT CUSoCal.org ❑: p r For more information NEWPORT BEACH 425 Old Newport Blvd., Suite A Monday -Friday: 8 a.m.-3 p.m. ONTARIO 2777 E. Guasti Rd., Suite 6 Monday and Friday: 9 a.m.-3 p.m. Tuesday -Thursday: 9 a.m.-4 p.m. PICO RIVERA 933o Whittier Blvd. Monday -Friday: 9 a.m.- 6 p.m. POMONA 435 W. Mission Blvd., Suite 100 Monday -Friday: 9 a.m.- 6 p.m. Saturday: 9 a.m: 1 p.m. W H ITTI ER GREENLEAF 8028 Greenleaf Ave. Monday -Friday: 9 a.m.- 6 p.m. Saturday:9 a.m: 1 p.m. MARKETPLACE 11749 Whittier Blvd. Monday -Thursday: 9:3o a.m.-5:30 p.m. 9-111 Website CUSoCal.org Email info@CUSoCal.org Mobile Banking m.CUSoCal.org Find ATMs Text location to 692667 Lost/stolen credit card 800.556.5678 Lost/stolen debit card 888.698.7241 CU SoCal routing # 322283796 For branch locations & hours visit CUSoCaLorg P.O. Box 200 1 Whittier, CA 90608-0200 Find FREE ATMS ■ Call toll-free 866 CU SoCal (866,287.6225) ■ Visit CUSoCaLorg ■ Text your location to 692667 (MYCOOP) ■ Download the database of ATMs directly to your GPS device at co-opnetwork.org ■ Visit CU SoCal's Mobile Banking site at m.CUSoCal.org .\\ Take for your wallet! Credit Union of IN Southern California BUILDING BETTER LIVES TELEPHONE SERVICE CENTER Local 562.698.8326 Toll -Free 866 CU SoCal 1866.287.6225 Monday -Friday 9 a.m.-6 p.m. Saturday 9 a.m.-1 p.m. Find SHARED BRANCHES ■ Call toll-free 866 CU SoCal (866.287.6225) ■ Visit CUSoCaLorg ■ Visit CU SoCal's Mobile Banking site at m.CUSoCal.org 9-112 Attachment CC 6 INCOME PROPERTY The City owns and manages an extensive and valuable assortment of property including streets, parks, beaches, public buildings and service facilities. The City also owns and operates a yacht basin, a mobile home park, a luxury residential development and various other income properties. Most of the income property is tidelands, filled tidelands or waterfront. Unencumbered fee value of income property is estimated at upwards of one hundred million dollars, and income typically contributes ten percent of all City revenues. As owner/manager of property, the City is the steward of a public trust, and state law requires the City to maximize its returns on state -managed property or be subject to a charge of making a gift of public funds. Nevertheless, the City Council recognizes the importance of this property not only as a revenue generator, but also as a means to provide otherwise unfeasible uses and facilities to benefit the community. In managing its property, the City will continually evaluate the potential of all City owned property to produce revenue. This may include leasing unused land, renting vacant space, and establishing concessions in recreation areas or other similar techniques. The City Council will evaluate the appropriateness of establishing new income properties using sound business principles and after receiving input from neighbors and users. The policy of the City Council is that income property be managed in accordance with the following: A. Whenever a lease, management contract, concession, sale or similar action regarding income property is considered by the City, an analysis shall be conducted to determine the maximum or open market value of the property. This analysis shall be conducted using appraisals or other techniques to determine the highest and best use of the property and the highest value of the property. B. All negotiations regarding the lease, management contract, concession, sale or similar action regarding income property shall include review of an appraisal or analysis of the use being considered for the property conducted by a reputable and independent professional appraiser, real estate consultant or business consultant. C. The City shall seek, whenever practical and financially advantageous, to operate or manage all property and facilities directly with City staff or contractors. D. In all negotiations regarding the lease, management contract, concession, sale or similar action regarding a non-residential income property, the City shall seek 9-113 revenue equivalent to the open market value of the highest and best use; and, whenever possible the City shall conduct an open bid or proposal process to insure the highest financial return. E. Whenever less than the open market or appraised value is received or when an open bid process is not conducted, the City shall make specific findings setting forth the reasons thereof. Such findings may include but need not be limited to the following: 1. The City is prevented by tideland grants, Coastal Commission guidelines or other restrictions from selling the property or converting it to another use. 2. Redevelopment of the property would require excessive time, resources and costs which would outweigh other financial benefits. 3. Converting the property to another use or changing the manager, concessionaire or lessee of the property would result in excessive vacancy, relocation or severance costs, which would outweigh other financial benefits. 4. Converting residential property to another use or opening residential leases to competitive bid would create recompensable liabilities and other inequities for long-term residents. 5. The property provides an essential or unique service to the community that might not otherwise be provided were full market value of the property be required. 6. The property serves to promote other goals of the City such as affordable housing, preservation of open space or marine related services. F. Generally, lengths of leases, management contracts, concessions or similar agreements will be limited to the minimum necessary to meet market standards and will contain appropriate reappraisal and inflation protection provisions. Also, all agreements shall contain provisions to assure complete audits periodically through their terms. G. All negotiations regarding the lease, management contract, concession, sale or similar action regarding income property shall be conducted by the City Manager or his/her designee under the direction of any appropriate City committees. H. To provide an accurate accounting of actual net revenues generated by the City's income property, all costs and charges directly attributable to the management of 9-114 a specific income property shall be debited against the gross revenues collected on that property in the fiscal year the costs are incurred. Costs and charges include property repairs and maintenance, property appraisals, and consultant fees, as authorized by the City Council, City Manager or by this Income Property Policy. I. The City Manager or his/her designee is authorized to sign a lease, management contract, concession or similar agreement or any amendment thereto, on behalf of the City. Notwithstanding the foregoing, the City Manager or his/her designee, or a City Council member, may refer any lease, management contract, concession or similar agreement or any amendment thereto, to the City Council for its consideration and/or action. Adopted - July 27,1992 Amended - January 24,1994 Amended - February 27,1995 Amended - February 24,1997 Amended - May 26,1998 Amended - August 11, 2009 Amended - May 14, 2013 Formerly F-24 9-115 Attachment CC 7 <y 7L JU4 *,Ihan lacerdd Mall TO: a- f1L4TMER*iVfiREMOd0. Os ffi IRVINE COMPANY 550 Newport Cantor Drive ow MAY 81 O1"" 992 Newport Beach, CA 92660 AIL OWd H;!Ewr O.T-T. OGOH f siA � Attention: Lee Milligan T�f� F S ADE -6 Space above thin line for Recorder's use J v DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE f 9-116 e • TABLE OF CONTENTS i DECL42ATION OF SPECIAL LAND USE RESTRICTIONS, EIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE ARTICLE 1. GENERAL PROVISIONS. . . . . . . . . . _ . 1 1.1 Grantee's Representations and Warranties. . . . . . . . 1 1.2 Statesient of Declarant's General Purposes. . . . . . . . 2 1.3 Definitions. . . . . . . . . . . . . . 2 (r.) 'Benefitced Property• . . . . . . . . . . . . . . 2 (b) -Center' . . . . . . . . . . . . . . . . . . . . . 2 (c) 'Declarant' . . . . . . . . . . . . . . . 2 (d) 'Effective Date' . . . . . . . . . . . . . . . . . 2 (e) 'Final H.P. . . _ . . . . . . . . . . . . . . 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 Imprevesrents. . . _ 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 Coat. . . . . . . . . . . . . . . 5 2.4 Fulfillment of Nap Conditions . . . . . . . . . . . . . . 5 2.5 Compliance With Lav . . . . . . . . . . . . . . . . 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 Instivctions. . . . . . . . . . . . . 7 (d) Request for Notice of Default. . . . . . . . . 7 2.9 Costs of Regional Development. . . . . . . . . . . 7 2.10 MacArthur Boulevard Dedication and Maintenance. . . 7 ARTICLE 3. GENERAL RESTRICTIONS. . . . . . . . . . . . . . . . . . 8 3.1 Unapproved Development or Use. . . . . . . . . . . . . 8 3.2 General Maintenance . . . . . . . . . . . . . . . . . . . 8 3.3 Restoration . . . . . . . . . . . . . . . . . . . . . . . 8 3.4 Drainage. . . . . . . . . . . . . . . . . . . . . . . 8 3.5 Signa . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.6 Prohibited Operations am[ 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 S. REMEDIES. S . . . . . . . . . . . . . . . 11 5.1 Default and General Remedies. . . . . . . . . . . . . 11 (a) Damages . . . . . . . . . . . . . . . . . . 11 (b) Equity . . . . . . . . . . . . . . . . . . Il 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 9-117 L is ! ' (d) Repurchase erica . . . . . . . . . . . . . . . . . 12 (a) Repurchase Escror Sams . . . . . . . . . . . . . . 13 (f) Irrevocability. . . 13 (g) Warranties• plans and Specificati" 13 5.4 Arbitration Procedure . . . . . . . . . . . . . . . . . . 14 5.5 Waiver. . . . . . . . . . . . . . . . . . . . . . 14 5.6 Coots of Enforcement . . . . . . . . . . . . . . . . . . 1-5 5.7 Rigbts of Lenders . . . . . . . . . . . . . . . . . . . . L5 5.8 Advances . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE 6. COMAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . 15 6.1 Unavoidable Delay . . . . . . . . . . . . . . . . . . . . 15 6.2 Continuous Operations. . . . . . . . . . . . . 16 6.3 Covenants to Run With the Land; ism. . . _ . . . . _ . 16 (a) Covenants to Run With the Land. . . . . . . . . . 16 (b) Teta. . . . . . . . . . . . . . . . . . . . 16 6.4 Assignment by Declarant . . . . . . . . . . . . . . . . . L6 6.5 Amendments . . . . . . . . . . . . . . . . . . . . . . . 16 I 6.6 Release. . . . . . . . . . . . . . . . . . . 16 (a) Release by Declarant . . . . . . . . . . . . . . . 16 (b) Not Applicable to Declarant. . . . . . . . . . . . 16 6.7 Notice. . . . . . . . . . . . . . . . . . . . . . . 17 6.8 Governing Lav . . . . . . . . . . . . . . . . . . . . . . 17 6.9 Severability . . . . . . . . . . . . . . . . . . . . . . 17 6.10 Captious . . . . . . . . . . . . . . . . . . . . . . . . 17 6.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . 17 6.12 Gender and Number. . . . . . . . . . . . . . . . . . . . 17 6.13 Time of the Essence . . . . . . . . . . . . . . . . . . . 17 N 11 9 0 9-118 i.. TABLE OF EXM178 -- Property Description .................... 1 Specific Facilities ..................... 2 Subordination Agree nt................. 3 I Iii 9-119 DECIABATION OF SPECIAL ]AHD USE RESTRICTIONS, RICHT OF FIRST REFUSAL, MORTGAGE LIEN AND OPTION TO REPURCHASE THIS DECLARATION (•Declaration•) is made as of March 11, 1992, by and between THE IRVINE COMPANY, a Michigan corporation ("Declarant"), and the CITY OF NEWPORT BEACH, a California municipal corporation (•Grantee•), with reference to the following facts: A. Grantee and Declarant have entered into an Exchange Agreement and Escrow Instructions (the "Exchange Agreement') by which Grantee is acquiring from Declarant the following described real property (the -Exchange Land-) situated In the City of Newport Beach, County of Orange. State of California: The southwesterly one-half of Parcel 2 as shown an Parcel Map No. 90-361, recorded in Book 270 , Pages 15 to IS , inclusive, of Parcel Maps, Records of said County. B. Grantee and Declarant have also entered into a Transfer Agreement and Escrow Instructions by which Grantee is acquiring from Declarant real property adjacent to and contiguous with the Exchange Land which real property In 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 Maps, Records of said County. C. In connection with such acquisition, Grantee has represented to Declarant that it has acquired the Exchange Land and the Transfer land as a single parcel described as all of Parcel 2 as shown on side Parcel Map No. 90-361 (the "Land•) to Improve and use the Land in accordance with the covenants, conditions, rights, restrictions and limitations as particularly set forth herein (collectively referred to as the "Restrictions-), and Declarant is granting the Land to Grantee on the basis of Grantee's continuing compliance with such Restrictions. NOW, THEREFORE, in consideration of the foregoing (including the conveyance of the Land by Declarant to Grantee), and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE 1. GENERAL PROVISIONS. 1.1 Grantee's Representations and Warranties. GRANTEE REPRESENTS AND WARRANTS TO DECLARANT THAT GRANTEE IS ACQUIRING THE LAND TO IMPROVE THE SAME IN COMPLIANCE WITH THE .RESTRICTIONS SET FORTH HEREIN AMD FOR THE PARTICULAR USPS AND PURPOSES AUTHORIZED HEREBY. GRANTEE ACKNOWLEDGES, AMONG OTHER THINGS, THAT: (a) GRANTEE IS EXPERIENCED AND gNOWiEDGEABLE IN THE CONSTRUCTION AND OPERATION OF PUBLIC FACILITIES, AND DECLARANT AND GRANTEE DESIRE TO PROVIDE A PUBLIC LIBRARY TO SERVE NEWPORT BEACH; (b) DECIARANT HAS CONVEYED AND GRANTEE HAS ACCEPTED FEE TITLE TO THE LAND FOR USE HY GRANTEE IN ACCORDANCE WITH THE PARTICULAR USES PROVIDED FOR IN THIS DECLARATION; (c) DEGIARANT AND GRANTEE DO NOT EXPECT OR INTEND THE LAND TO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PERMITTED HEREIN; (d) THE LIKELri[OOD 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) WITHOUT THE RESTRICTIONS CONTAINED HEREIN. THE PURPOSES AND EXPECTATIONS OF DECLARANT IN THE DEVELOPMENT OF NEWPORT CENTER AND USE OF THE LAND COULD BE DEFEATED; (f) BUT FOR CONVEYANCE OF THE LAND, GRANTEE WOULD BE REQUIRED TO PAY SUBSTANTIAL SUMS TO ACQUIRE LAND FOR ITS USES; (g) DECLARANT AND GRANTEE HAVE ESTABLISHED THE FAIR MARKET VALDE OF THE LAND 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 TART MARKET FORCES COULD MAKE THE PRICE FOR REPURCHASE CRFATER OR LESSER THAN THE VALUE ESTABLISHED FOR PURPOSES OF THE OPTION TO REPURCHASE AND HEREBY ASSUME THAT RISK. n U 9-120 ' BIR FOR SUCH REPRESENTATIONS BY GRANTUH, AND GRANIT'E'S UNIQUE SKILLS, ERPERTISE AND SUITABILITY IN GONSTRUCTIOR AND OPERATION OF THE SPECIFIC PAGII ms DESCRIBED BELOW, DF.CIARAvr WouLD NOT HAVE CONVEYED THE LAND To :RANTES, BUT WOULD HAVE RETAINED THE BENEFITS OF OWNERSHIP. INCLUDING FUIURZ APPRECIATION OF THE LAND. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES, DECLARANT HAS CONVEYED THE LAND TO GRANTEE. 1.2 Statement of Declaranc's General Purooaes. Declarant is the owner of a large and unique landholding, part of which has been developed as a meter plamsd business, recreational, hotel, residential and recall Center, described below, 1n the City of Newport Beach (the 'City-). Among the distinguishing characteristics of this austerplanned Center are the clear delineation of use areas throughout the Center, together with the strict exercise of architectural and occupancy controls over individual construction projects, so as to ensure the harmonious, growth end development of the Center and the maximization of the value of Declarant's developed and undeveloped landholdings an well as the land itself. In addition to those general concerns, it in vitally important to Declarant that the intensity of development shall be limited on those parcel# of property (including the land) that Declarant from time to time elects to convey to third parties. Should the development limitations imposed by Declarant be exceeded, the roadways and the infrastructure improvements servicing the Center and its environs could be overutilized, resulting in undesirable traffic congestion and imbalances within the Center. Such conditions could In turn adversely affect the ability of Declarant to develop, own, operate, lease or sell its landownLogs, including without limitation the 'Benefitted Property" as defined below. It is to promote these purposes that this Declaration is made, and It is the intention of the parties that it will be in furtherance of said purposes that the Restrictions, and all other declarations supplemental hereto, will be understood and construed. 1.3 Definitions. As used herein, the following terms shall have the meanings given to them below: (a) "Benefitted Property" shall mean the real property to which the benefit of the provisions of this Declaration inures, and as of the execution of this Declaration shall mean the real property described on EIOIXAa 1 attached hereto. Declarant shall have the right by a duly recorded amendment hereto executed solely by Declarant to substitute far or add to the Benefitted Property any real property owned by Declarant in the County of Orange, California. The Benefitted Property shall be the dominant tenement and the Ind shall be the servient tenement for purposes of this Declaration. (b) -Center- shall mean tho office, hotel, recreational, retail and residential and other use area commonly (mown as Newport Center (including the shopping center (mown as Fashion Island) and generally lying within the area enclosed by Pacific Coast Highway, MacArthur Boulevard, San Joaquin Hills Road and Jamboree Road. (c) -Declarant- shall mean The Irvine Company as Identified above and its successors, assigns or designees who shall assume the obligation and to whom The Irvine Company shall sr�ciffcally assign in writing the right to enforce these Reb.-rictions, subject to the provisions of the Section entitled "Assignment by Declarant." (d) -Effective Date" of chin Declaration shall be the date this Declaration is recorded in the Official Records of Orange County, California. (e) "Final Map' shall mean the final map covering the Lend described as Parcel Nap No. 90-361 as show on a map recorded In Book 110 , Pages 15 to IB , inclusive, of Parcel Maps, Records of Orange County, Callfornla. (f) -Grantee- shall mean the Grantee identified above and each and every suezeasor, assignee, ower, leasee, licensee or other occupant of the lend, the Specific Facilities, as defined below, or any portion thereof or interest therein, and each of then, during their ownership or occupancy thereof. 9-121 However. such ten shall not include any person having an Interest in all or say 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 tbA land or the Specific Facilities, beth the lessor and lessee under such lease shall be responsible as principals (and net sureties) for compliance with all the terms and provisions of this Declaration. (g) The 'Gross Floor Area' shall seen the aggregate number of square feet of floor space on all floor levels of any building, including mezzanines, measured from the Interior face of all exterior walls. No deductions or exclusions shell be made by reason of columns, stairs, elevators, escalators, or other interior construction or equipment. ARTICLE 2. SPECIFIC RESTRICTIONS. 2.1 Specific Facilities. (a) Imorovement and Continued Use. Grantee represents and agrees that Grantee shall cause the land to be improved only with the specific facilities described on EXHIBIT 2 attached hereto (the 'Specific Facilities-) and the other improvements described on EXHIBIT 2 attached hereto (the 'Other Improvements-) and in full accordance with all of the terns of this Declaration, and that Grantee shall cause the land, 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 commonly associated with public libraries now and in the future including any form of information storage and retrieval such as video tapes, books, optical and magnetic disks or other technologies for information storage and retrieval. Grantee may charge fees, rentals and late charges for loan or use of information media provided that fees, rentals and charges do not exceed the cost of operation of the public library facility. No portion of the land, or any improvements thereon, or any portion thereof, shall be used for retail, commercial, quasi - retail or quasi -commercial facilities that materially compete with the retail and commercial facilities in the Center or otherwise ivproved, developed, used, operated or maintained with any facilities or for any purpose whatsoever except as net 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 Ocher Improvements pursuant to the plans and specifications approved by Declarant pursuant to the Exchange Agreement and the Transfer Agreement. If Grantee desires to make any substantial alterations, modifications, additions or changes to the exterior elements of any plans and specifications previously approved by Declarant, then Grantee shall submit three copies of any Change Order to Declarant for its approval prior to obtaining approval of such Change Order by the governmental entity having Jurisdiction and prior to incorporating such Change Order in the work. Declarant shall approve or disapprove such Change Order in accordance with the standards and procedures set forth in Section 2.2. Construction and installation shall be commenced and completed within the time periods set forth I. the Section below entitled 'Commencement and Completion. - (c) Commeneement and Coooletion. Subject to extensions of time for unavoidable delays as provided under the provision entitled 'Unavoidable_y_ Delay,- (i) within the time period specified an EXHIBIT 2 as the 'Comaencemenr__ Date,' measured from and after the Effective Date of this Declaration, Grantee ,l 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 thXs Declaration. Grantee shall have completed construction of the Specific Facilities on the Land in a manner consistent with plans and specifications approved in writing by Declarant pursuant to the Agreement. AS used herein, the tem 'commenced construction - Shall mean the completion of substantial grading of the Land and the pouring of all or a substantial portion of all of the footings and foundations for the entire Specific Facilities (which need nor necessarily include the ground floor slabs). Grantee shall be deemed to have -completed construction' of the Specific Facilities only at such time as Grantee shall have obtained from the appropriate IS a- n U 9-122 (g) Alterations and Additions. Grantee shall not make any substantial additions, alterations or other modifications ("alterations-) of or to the exterior of the Specific Facilities or any additions, alterations or other modifications to the visible portions of the Other Improvements or other improvements from time to time located on the Land, without the prior written approval of Declarant. Declarant shall approve or disapprove of such alterations in accordance with the standards and procedures set forth in Section 2.2. All such alterations shall be subject to the provisions of Article 2 hereof. If Grantee desires to add additional structures to the land other than those specified in EXHIBIT 2, then Declarant may impose additional restrictions, covenants and obligations as a condition to its approval. As used in this Section, tike 'exterior' of the Specific Facilities shall mean all roofs, outside walls and facades, structural foundation., entrance doors, windows. outside walkways, ramps and other accessways, and parking facilities. 2.2 Declarant's Approvals (a) Approvals Required. Except with respect to plans and specifications approved prior to the recordation of this Declaration, no construction, installation or alteration of the Specific Facilities, the Other Improvements, or any other landscaping, grading or other Improvements in, about or on the Land shall be commenced unless the concept, plans and specifications for the exterior elements of such improvements have first received the written approval of Declarant exercising its sole and absolute discretion. The improvements constructed shall comply with the plans and specifications approved by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that the Specific Facilities, the Other Impcovesents 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) Time for Aoorovale. Declarant shall approve or disapprove any plans and specifications delivered to Declarent pursuant to this Article as soon as possible but no longer than thirty (30) working days after receipt of two copies thereof accompanied by such drawings, site plans, elevations, artists' conceptions, sample• of materials, models, mock-ups, and color samples as from time to time required by Declarant to review such plans and specifications. If 9-123 gave roman cal entity or agency a valid Certificate of Use and Occupancy for the Specific Facilities, Crentes shall emitsto and complete construction of the ! ., Other Improvements prior to or contemporaneously with suth Specific Facilities. _ — (d) Cradles. Prior to the commencement of any grading or ^ similar work on the land, Grantee shall submit to Declarant for its approval two / ■ sets of plans and specifications for grading, terracing end filling of the Land ` ■ J and for construction of other similar improvesents in, on or about the land. � (e) Utilities. Streets and Public Ivarwements. J! (i) Grantee shall cause all necessary facilities for water, drainage, savage, telephone, electricity, cable televi.lon, and other utility service for the Lend to be constructed and installed thereon and thereto in the manner and within the time required by the Exchange Agreement. I (if) In addition to any such facilities constituting a w• part of the Specific Facilities or the Other Improvements, Grantee shall construct and Install or pay for construction and installation of all streets, street lights, driveways, curb cuts, entry ways, sidewalks and the like, perimeter valla and fences, irrigation and drainage systems, landscaping, w, —= man went, directional or other signs and all like improvements on the land or between the Land and adjoining sidewalks or the curbs of adjoining streets, as ' required by the Exchange Agreement. (f) landscaping. In addition to the landscaping constituting j 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 mamu:r consistent with the existing landscaping in the Center. Grantee shall submit to Declarant for its approval two sets of plans and specifications for the landscaping on the Land. I, (g) Alterations and Additions. Grantee shall not make any substantial additions, alterations or other modifications ("alterations-) of or to the exterior of the Specific Facilities or any additions, alterations or other modifications to the visible portions of the Other Improvements or other improvements from time to time located on the Land, without the prior written approval of Declarant. Declarant shall approve or disapprove of such alterations in accordance with the standards and procedures set forth in Section 2.2. All such alterations shall be subject to the provisions of Article 2 hereof. If Grantee desires to add additional structures to the land other than those specified in EXHIBIT 2, then Declarant may impose additional restrictions, covenants and obligations as a condition to its approval. As used in this Section, tike 'exterior' of the Specific Facilities shall mean all roofs, outside walls and facades, structural foundation., entrance doors, windows. outside walkways, ramps and other accessways, and parking facilities. 2.2 Declarant's Approvals (a) Approvals Required. Except with respect to plans and specifications approved prior to the recordation of this Declaration, no construction, installation or alteration of the Specific Facilities, the Other Improvements, or any other landscaping, grading or other Improvements in, about or on the Land shall be commenced unless the concept, plans and specifications for the exterior elements of such improvements have first received the written approval of Declarant exercising its sole and absolute discretion. The improvements constructed shall comply with the plans and specifications approved by Declarant pursuant to the Agreement or this Declaration. Grantee agrees that the Specific Facilities, the Other Impcovesents 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) Time for Aoorovale. Declarant shall approve or disapprove any plans and specifications delivered to Declarent pursuant to this Article as soon as possible but no longer than thirty (30) working days after receipt of two copies thereof accompanied by such drawings, site plans, elevations, artists' conceptions, sample• of materials, models, mock-ups, and color samples as from time to time required by Declarant to review such plans and specifications. If 9-123 approved by Declarant, such approval shall be endorsed on such plans and specifications and one set of such donaaants bearing Declarant'• approval shall be returned to Grantee within such thirty (30) working day period. If Declarant 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 Declarant'• disapproval, submit new plans and specifications for Declarant's approval. vailure 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 days after Grantee's written notice to Declarant that Declarant has failed to approve or disapprove as required herein shall be deemed approval thereof. the approval by Declarant of any plans and apeeifications pursuant to this Section shall only represent Declarants' satisfaction with the plans and specifications as to their general aesthetic elements. Such approval shall not be deemed to constitute any representation or warranty by Declarant as to the adequacy or sufficiency of such plans and specifications for architectural or engineering design or the feasibility or integrity of any grading, landscaping, improvement or construction contemplated thereby for any use or purpose. By approving such plans and specifications, Declarant assumes no liability or responsibility therefor or for any defect in any grading, landscaping, improvements or construction made pursuant thereto. (c) As guilt Plans. Upon completion of the grading, landscaping and construction of improvements. Grantee shall submit to Declarant two 'as built' sepias and a Certificate of Compliance executed by Grantee's state licensed consultant (engineer, architect and/or landscape architect). She Certificate of Compliance shall warrant that the completed grading, landscaping and construction conforms to the plans and specifications therefor approved by Declarant. 2.3 Grantee's Cost. She 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 Iaw. (a) Grantee to Comely. the Specific Facilities, the Other Improvements and all other landscaping, grading and other improvements made or constructed in, about or on the land, and the use thereof, shall comply at all times with all public laps, ordinances and regulations applicable thereto. Without limiting the generality of the for,;going, Grantee shall obtain, at its sole expense, all of its internal and external governmental approvals and permits and approvals of other governmental authorl=Les with jurisdiction which may from time to time be required with respect to the performance contemplated under this Declaration, including, as applicable eid vi thout limitation, appropriate Zoning, building permits, permits from the Callfcrria Coastal Commission, operating and business licenses and permits and the lika. In obtaining such approvals and permits, Grantee shall prepare, at its sols expense, an necessary and without limitation, all environmental impact reports, englaoering studies and the like as necessary. (b) Approvals of Aeolic ationa. All requests orappllcations, together with all supporting documentation, for governmental approvals or permits which require discretionary action by discretionary bodies of Grantee or on the part of another governmental agency, shall be submitted to and coordinated and approved by Declarant prior to placing such approval on the agenda of Grantee's discretionary body or filing with any other governmental agency. Declarant shall have a period of forty five (45) days after receipt to disapprove any requests or applications so submitted by Grantee, and in the event of disapproval shall specify the reasons therefor. Failure to disapprove within such forty five (45) 9-124 Ilii& �rsla • 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 dewed approval thereof. Grantee shall cause copies of all written communications between Grantee and other governmental agencies processing such requests or applications to be delivered to Declarant within five (5) business days after such coassmlcation has been delivered to the addressee. U 2.6 Rands. Before the commencement of any of the work required Uunder this Article 2, Grantee shall furnish to Declarant true copies of any and all labor and material bonds and faithful performance bonds, if any, required of ' Grantee by any governmental agency concerning such work. 2.7 Transfers. ' I (a) 17rensfera Prohibited. For a period of not less than ' i twenty-five (25) years after the Effective Date, Grantee shall not sell, lease, convey, exchange, encumber or otherwise transfer the land or any portion thereof or facilities thereon, whether by agreement for sale or in any other manner ' (herein collectively referred to as a -transfer') without first giving Declarant at least sixty (60) days' prior written notice of all terms and conditions of such proposed transfer and the right to either (i) acting reasonably, approve or disapprove such transfer, (11) exercise its option to repurchase set forth In r Section 5.3 below, or (iii) exercise its right of first refusal set forth in Article 4 below. Declarant in its sole discretion may within such sixty (60) day' period exercise any such right. Declarant's failure to so act within such sixty (60) day period shall be deemed to constitute approval of the transfer on the terms and conditions proposed by Grantee. Any time after the twenty fifth (25th) anniversary of the Effective Date, Grantee may transfer the land without j Declarant's approval under this Section and without regard to Declarant's option to repurchase set forth in Section 5.3 below or Declarant's right of first refusal set forth in Article 4 below. Grantee hereby acknowledges that it would be reasonable and appropriate for Declarant to disapprove a transfer and exercise its option to repurchase and/or right of first refusal if the proposed transferee Is not adequately experienced, knowledgeable and financially capable to own and operate a public library. (b) permitted Transfers. Notwithstanding the foregoing, (i) Grantee may transfer the Land to any other governmental or quasi-governoental entity or agency which has as its primary purpose maintenance and operation of public libraries provided such entity shall be subject to all of the provisions of this Declaration or (ii) provided Grantee complies with the provisions of Section 2.8 below, Declarant shall consent to a transfer or encumbrance on the Land made in connection with an Interim or permanent loan or loans or other fore of private or public financing (including without limitation bonds, lease revenue obligations or certificates of participation) ('public obligations') made in good faith and for value by an institutional lender or by a public obligation, the proceeds of which are used only for the coats and expenses of such public obligations and construction of the Specific Facilities and Other Improvements or refinancing of a construction financing in an amount not to exceed the amount outstanding under the construction financing (collectively, 'Permitted Transfers'). 2.8 Subordination or Cone: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 contilned 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 appllcetion to this Declaration, for purposes only of describing the transfers and encumbrances to which Declarant will continue to consent or subordinate pursuant to this Declaration) provided that the principal mount 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 9-125 commercially reasonable tares and conditions. Grantee will provide Dselerant with appraisal information from a reputable N.A.I. appraiser, Era the Office of the Assessor of Orange County or from an institutional lender reasonably satisfactory to Declarant to verify that the Cora). loaf-to-value rate does not exceed ninety percent (90a). No foreclosure, trustee's sale or deed in lieu of foreclosure with respect to any Such permitted encumbrance or exercise of any remedy to enforce a public obligation shall be doomed an as eLgnmemt• for '.urpoeee of Section 2.7, above. Vithin ten (10) working days after receipt of the following iters, provided the foregoing requirements have been satisfied and provided there is no default under any provision of this Declaration or under say other obligation between Declarant and Grantee relating to the Land, Declarant shall execute, acknowledge and deliver to Grantee a subordination instrument in� substantially the form attached hereto as UHIBIT 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 cruet or other interest or right created to enforce payment of any public obligation which affects the Land must not secure or relate to any obligation or indebtedness not related to improvement of the Land, and neither the note, the mortgage, deed of trust, lease nor any other document or instrument pertaining to a loan or public obligation pertaining to the Land shall contain any provision making it a default thereunder if the obligor or any other party defaults in any obligation not related to the acquisition or improveme:at of the Land; (b) Title Report. A preliminary title report dated not earlier than fifteen (15) days prior to submittal shoving no title exceptions other than those in existence at the time Declarant transferred the land to Grantee, other utility easements reasonably necessary to serve the land, and other matters approved by Declarant; (c) Disbursement Instructions. A copy of the executed 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 2942b of the California Civil Code prepared for execution and acknovledgment 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 an the land will be accomplished in conjunction with development of ocher 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 net forth In MIBIT I of the Exchange Agreement. 2.10 MacArthur Boulevard Dedication and Maintenance. Declarant and City agree that a land area along MacArthur Boulevard shall be designated on the Final Map to be used exclusively for future expansion of MacArthur Boulevard. Prior to construction of road and other improvements for such expansion, Grantee shall not use the area designated for any purpose other than installation and maintenance of landscaping. Grantee agrees to install landscaping within such area prior to completion of construction of the Specific Facilities pursuant to plans and spoclficatione approved by Declarant in accordance with the standards and procedures set forth in Section 2.2 and to maintain such area in a first class condition, order and repair at all times prior to commencement of construction for expansion of MacArthur Boulevard. 7 n U 'NU 9-126 tMMMMEL�:M n 3.5 Sizes. Grantee shall not place or use Any signs, banners, balloons, displays of other advertising media in, on, about or above the Land or on or in any improvements constructed or placed thereon unless it has first obtained the prior written consent of Declarant as to the number, size, location, height, illumination, color and design of such signs or other media. Declarant shall not unreasonably withhold such approval so long as such signs or other media (a) comply with (I) Declarant•a sign program for the Land, the property surrounding the Land and the Benefitted Property, if any, and (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 ithe Land and with Declarent'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 1n this Srctlwn, no sign, banner, balloon, display or other advertising media which to visible from adjacent land or any public or private street shall be maintained in, on about or above the Land or on or 1n any improvements constructed or placed thereon. 3.e Prohibited Operations end Uses. No trailer, camper, bus, _ automobile, motorcycle. boat or other vehicle or equipment ('vehicle') shell be permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 •.m. No use or operation shall be made, conducted or permitted on at with respect to all or any pert of the Land or improvements thereon which is obnoxious to or out of harmony with the residential and/or commercial neighborhood in the vicinity of the Land, Included mon& 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: 9-127 ' ARTICLE 3. CEPIR&L REMIC[IORS. 3.1 Unamoroved Develoeeent or Use. Unless expressly approved by Declarant, which approval may be withheld by Declarant in Lee sola discretion, , Grantee shall not permit the construction, maintenance, operation or use of any structure or improvements an the land mot in full compliance with all requirements of the law, this Declaration and my other covenants, conditions And 1 :estrictlona from time to time covering the Land. J 3.2 General Maintenance. Prior to the completion of the Specific Facilities, Grantoe shall maintain the Land in a clean, sanitary, orderly and —. attractive condition, free of weeds, debris and pests. Upon completion of the Specific Facilities as contemplated herein. Grantee shall at all times maintain the Specific Facilities, the Other Improvements and all other improvements free ' time to time located on the Land, including without limitation the landscaped ' areaa, In first-class condition, order and repair. Crantee shall remove any graffiti on the Improvements, Other Improvements and all other Improvements on the Land within three (3) business days after delivery of notice by Declarant. 3.3 Restoration. If any building or improvement on the Land, or any part thereof, or any landscaping installed upon the Land, shall be damaged or destroyed by fire or other casualty, Grantee shall at its cost and expense either (i) repair or restore the same according to the original plane thereof or to such ' modified plans as shall be previously approved in writing by Declarant as provided above, or (it) demoliah such damaged or destroyed improvements and leave the Land (or applicable portion thereof) In a clean and safe condition. Such 1 repair, restoration or demolition shall be commenced within one hundred twenty I (120) days after the damage or loss occurs and shell 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 Drainase. Grantee shall not drain or discharge water from the Land (including buc not limited to rain water and water from landscape sprinkler systems located on the Land) on to adjacent land except as follows: Grantee shall at all times cause the Land to be graded and drained so as to cause the discharge of all water from the Land onto the public street adjoining the Land or Into an established drainage facility. If any, on or adjacent to the land which has been designed to accommodate the water at the rate discharged. 3.5 Sizes. Grantee shall not place or use Any signs, banners, balloons, displays of other advertising media in, on, about or above the Land or on or in any improvements constructed or placed thereon unless it has first obtained the prior written consent of Declarant as to the number, size, location, height, illumination, color and design of such signs or other media. Declarant shall not unreasonably withhold such approval so long as such signs or other media (a) comply with (I) Declarant•a sign program for the Land, the property surrounding the Land and the Benefitted Property, if any, and (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 ithe Land and with Declarent'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 1n this Srctlwn, no sign, banner, balloon, display or other advertising media which to visible from adjacent land or any public or private street shall be maintained in, on about or above the Land or on or 1n any improvements constructed or placed thereon. 3.e Prohibited Operations end Uses. No trailer, camper, bus, _ automobile, motorcycle. boat or other vehicle or equipment ('vehicle') shell be permitted to remain upon the Land overnight after 11:15 p.m. or before 5:00 •.m. No use or operation shall be made, conducted or permitted on at with respect to all or any pert of the Land or improvements thereon which is obnoxious to or out of harmony with the residential and/or commercial neighborhood in the vicinity of the Land, Included mon& 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: 9-127 iMMEMEMl£; ' (a) Any public or private muisamci,; I (b) Any vibration, miss, sound or disturbance that to objactLonable due to intermittence, beat, frequanzy, shrillness or loudness; (c) Any direct lighting which is not shielded and conf£wd within site boundaries; ! f (d) Any emission of odors, noxious, caustic or corrosive matter, whether toxic or nontoxic; 1� (e) Any litter, dust, dirt or ash in excessive quantities; (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; I /e (g) Any service, maintenance, repair or vasbing of my vehicle on the land at any time except for emergency service necessary to move a vehicle to A maintenance facility off of the Land; �E (h) Any raising, breeding or keeping of animals, livestock or ' poultry of any kind; (L) Fuel storage of any type; 'I (j) Any accumulation of rubbish, crash or garbage. All refuse containers, air conditioning devices, utility areas, storage areas and machinery and equipment shell be prohibited upon the Land unless screened from view from I 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 Uses' shall not in any way supersede the other Restrictions. 3.7 No Subdivision. Grantee shall not effect any change or amendment to the Final 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 ordinances adopted pursuant thereto, or file any tentative maps or applications with respect thereto with any governmental agency, nor shall Grantee file or record a condominium plan covering the Land or any portion thereof or any improvements thereon or any applications with respect thereto nor shall Grantee convey a portion consisting of less than all of the Land, unless expressly approved by Declarant which approval may be withheld by Declarant in its sole discretion. 3.8 ,Zoning. Grantee shell rot use or develop or attempt to see or develop the land or any portion thereof for any purpose other than those purposes expressly allowed under the zoning ordinnrIce of ordinances of the governmental entity having zoning jurisdiction over the :.and. Additionally. Grantee shall not at any time change or attempt any change in zoning, or obtain or apply for a conditional use permit, zoning variance or exception or other similar approval _J with respect to the use or development of the land or any portion thereof not expressly allowed under such existing zoning ordinance, unless expressly approved by Declarant, which approval may be withheld in its sole discretion. Notwithatanding the foregoing, Declarant shall not unreasonably withhold its consent to Grantee's application for such conditional use permit as may be required for development of the Land with the Specific Facilities. Grantee shall obtain Declarant's consent prior to placing such application on the agenda of Grantee's df.screcionery body or submitting any such application or related documents to any other governmental agency and thereafter will submit copiss of all such documents to Declarant for its review and information. 9-128 3.9 Indannix. Declarant and Declarant's past and present employees, officers, directors, shareholders, agents and representatives and its and Chair respective successors and ss&ISN (Collectively, the 'Iudemnitsws') shall met be liable for any loss, damage, injury or claim of any kLad or character to any person or property arising from or caused by (a) the improvement, development, maintenance, man, lease or other conveyance of the Iand or improvements thereon or way portion thereof or interest therein, including, 'rithout limitation, any lose, damage, Injury or claim arising from or caused by or alleged to arise from or be caused by (1) any use of the land or any part thereof, (ii) any defect In the design, construction cf. or material in any structure or other improvement upon the Land, (iii) any defect in or contamination of soils or in the preparation of soils or in the design and accomplishment of grading, (including the existence of any contaminants or hazardous materials in or on the soil), (iv) any act or omission of Grantee or any of its agents, employees, licensees, irrvitees, or contractors, (v) any accident or casualty on the land, (vi) any representations by Grantee or any of Its agents or employees, (vii) any violation or alleged violation by Grantee, its employees or agents of arty 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 Land or Crantee'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. FWrthermore, 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 lots, damage, or injury of Grantee, and agrees to indemnify, defend and hold harmless Declarant and its property, and the other Indemnitees from all loss, liability, damage, costs and expenses (including attorneys' fees) arising from or related to any such loss, damage, injury or claim, whether incurred or made by Grantee or any other person(s). The foregoing waiver and indemnity shall apply to a claim or action brought by a private party or by a governmental agency or entity under any statute or common law now or hereinafter in effect and is intended to apply with respect to loss, damage, Injury or claim arising before or after the lease, sale or other conveyance of any portion or all of the Land or any improvements thereon. With respect to design, construction methods, materials, locations and other matters for which Declarant has given or will give its approval, recommendation or other direction, the foregoing waiver. indemnity and agreement shall apply irrespective of Declarant's approval, recommendation or other direction. Notwithstanding anything to the contrary above, nothing contained in this Section shall operate to relieve Declarant or the other Indemnitees from any loss, damage, injury or claim ultimately established by a court of competent jurisdiction to have been caused by the sole negligence or willful misconduct of Declarant or the other Indemnitees. Grantee's covenants in this Section arising from or related to acts or occurrences during the time of Grantee's ownership shall survive the lease or other conveyance of all or any part of the Land or improvements thereon and shall be binding on said Grantee (as well as its successors to the Land) until such time as action against the Indemnitees Is absolutely barred by an applicable statute of limitations. ARTICLE 4. DECLARANT'S RIGHT OF FIRST REFUSAL. Except with regard to 'Permitted Transfers" described in the Section above entitled 'Transfers-, if, at any time prior to the twenty fifth (25th) anniversary of the Effective Date, Grantee shall determine to transfer all or any part of the Land or the improvements thereon or any interest there:.n ('Interest'). Grantee shall notify Declarant of the price and the terve on which Grantee will be willing to transfer. If Declarant, within sixty (0) days after receipt of Grantee's notice, indicates in writing its agreement to purchase said Interest for the price and on the terms stated in Grantee's notice, then Grantee shall transfer and convey the Interest to Declarant for the price and on the terns stated in ouch notice. If Declarant does not indicate its agreement within such sixty (60) day period, then Grantee thereafter shall have the right to transfer and convey the Interest to a third party, but only for a price not less than the price offered to Declarant and on to rma not more favorable then those stated in the notice. if Grantee does not so transfer and convey the Interest within one hundred eighty (180) days after Grantee's notice, then any further transactions (including a transaction on the same price and terms previously submitted to l0 X. n U 1 I 9-129 _ _ montoe.-Jn'rl4MR1e+T?TD^.ab!fi,!n.�^[e,-.+,vire-emf+ylTYn..Y'��:Y•:'1.....a+Mrrw.,w:.:�nne�:+.. t-._e.s...-.-_ r ' Declarant) shall be deamed a now, determination by Grantee to transfer and convoy said Interest, and the provisions of this Article shall again be applicable. ARTICLE 5. m - 5.1 Default and General Rmediss. In the event of any breech, n -tolacion or failure to perform or satisfy any of the Restrictions which has not U been cured within the applicable cure period as set forth below, Declarant at its sole option and discretion may enforce any oro or more of the following remedies or any other rights or remedies to Mich Declarant may be entitled by law or equity, whether or met act forth herein. Unless a cure period is otherwise - specifically designated, a cure period shall commence when written notice Is given to Grantee of a violation hereunder and shall end can (10) days thereafter In the case of a monetary default and thirty (30) days thereafter in the we of a noumonstary default; provided, however, that if a nonmonstary default is net ! ' reasonably susceptible to cure promptly within the thirty (30) day period, then Grantee shall have a reasonable tide to cure the name so long se Grantee has vo commenced oath cure promptly within the thirty (30) day period and thereafter !11 diligently prosecutes the cure to completion. To the asximm extent allowable 1 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 sentence in the event Declarant elects to exercise any remedy provided for in Section 5.3 hereof based upon a particular violation of the Restrictions, such remedy shall be Declarant's sole and exclusive remedy for such violation of the Restrictions. Notwithstanding the foregoing, Declarant's remedies for a violation or breach of Section 3.10 (Indemnity) shall be cumulative with and in addition to its remedies for other violations or breaches under this Declaration. 1, (a) DamaFes. Declarant may bring a suit for damages for any compensable breach of or noncompliance with any of the Restriction, or declaratory relief to determine the enforceability of any of the Restrictions. (b) Equity. It is recognized that a particular or ongoing violation by Grantee of one or more of the foregoing Restrictions may cause Declarant to suffer material injury or damage not compensable in assay damages (including, but not limited to, irreparable effects on the type and quality of development on and use of the Benefitted Property or portions thereof and/or frustration of Declarant's purpose for conveyance of the land to Grantee), and that Declarant shall be entitled to bring an action in equity or otherwise for specific performance to enforce compliance with the Restrictions or an injunction to enjoin the continuance of any such breach or violation thereof, whether or net Declarant exercises any other remedy set forth herein. 5.2 Inspection. Declarant or its authorized representatives may from time to time, at any reasonable hour, enter upon and inspect the 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 cc Repurchase the land. Upon any proposed, attempted or actual •transfer• in violation of the provisions of Section 2.7 above and, in addition to the foregoing remedies described in Section 5.1, upon any violation of the Restrictions itemized in Sections 2.1(a) ('Improvement and Continued Use-) or 2.1(c) ('Cos®encement and Completion"), Declarant, in its note option and discretion. shall be entitled to repurchase the Land as provided below. (Declarant shall not be entitled to repurchase the land unless a proposed, attempted or actual transfer in violation of Section 2.7 has been Initiated, e violation of the restrictions in violation of 2.1(s) has occurred or construction has not been commenced or completed as required by Section 2.1(c).) (a) Grant of Option. Grantee hereby grants to Declarant an exclusive option to purchase the land subject only to: (I) Current taxes not yet delinquent; (it) Natter[ affecting title existing at the Effective Date of this Declaration, excluding any mortgage, deed of trust or similar Instrument to which Declarant has subordinated the Enforcement Rights pursuant to Section 2.8 above; 11 9-130 la$�n. iR�PC�R•".'°A,.,,!^s+t'1r55!A:it^I^"+sr!w�sam.^.v��rn.r*�*ecm+...,-.w.,.,-.e..,.w... (iii) Natters affecting title which ars created, me", unused, consented to or requested by Declarant, its successors or assigns, excluding any mortgage, Gad of trust, any utter related to issuance of any public obligation or similar instriusent to which Declarant hu commented without exercise of the Enforcement Rights or to which Declarant has subordinated the Enforcement Rights pursuant to Section 2.8 above; (iv) Matters shown "printed exceptions in the standard fov California Land Title Association owner's policy of title insurant-0. (v) Noninterfering easements for utilities used in connection with the improvements constructed on the Lend. (b) Exercise of Reeurrhaae Option. Declarantmay, exercise Its option to repurchase the Land by giving written notice to Granzee of Declarant'■ election to repurchase within (i) sixty (60) days afeor receipt of Grantee's notice of proposed -transfer" as provided In Section 2.7 (Transfers) above, (11) 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 commencing thirty (30) days after delivery of notice to Grantee of violation of the Restrictions itemized In Section 2.1(a) if such violation has continued unabated, or (iv) within one hundred eighty (180) days of the respective commencement or completion dates (as such dates may be extended pursuant to the terms of this Declaration) in the event of Grantee's violation of Section 2.1(c) above. For purposes of this Section 5.3, Declarant's actual notice shall ween notice to the person to whom notice may be addressed under Section 6.7 of this Declaration, and no other persons. No failure of Declarant to exercise its option upon Grantee's failure to commence construction as provided above shall constitute a waiver of its right to exercise the option upon Grantee's failure to complete construction by the appropriate date, as described above. No failure of Declarant to exercise Its option in the event of any proposed, attempted or actual -transfer- (whether approved by Declarant or not) in violation of Section 2.7 above shall constitute a waiver of Declarant's rights to exercise the option upon any such transfer subject to Section 2.7 which might be proposed, attempted or consummated at a lacer time. No failure of Declarant to deliver a notice of violation of the Restrictions contained in Section 2.1(a) Shall constitute a waiver of Declarant's rights to deliver such notice at any time and exercise the option. Rescission of any notice of violation of the Restrictions itemized in Section 2.1(e) prior to the option becoming exercisable, or If such violation is cured, after the option becoming exercisable shall nor constitute waiver of Declarant's right to later notify Grantee of a new violation and exercise the option. Any rescission of notice of exercise of this option shall not constitute waiver of Declarant's right to exercise the option again if a later event causes the option to become exercisable. (c) Expiration and Quitclaim. Unless exercisedby Declarant, this option shall expire upon the twenty fifth (25th) anniversary of the Effective Date. After expiration and upon written request therefor by Grantee, Declarant shall execute and deliver to Grantee a quitclaim deed satisfactory to Declarant relinquishing all of its rights under the option to repurchase portion of this Declaration. (d) Repurchase Price. Imclarant's purchase price for the Land upon its exercise of the option provided above, shall be the greater of: (I) An amount including the following: (AI The price attributable co the Land equal to the lesser of (A) $4,400,000 increased or decreased by CPI adjustments which Shell be limited to an annualized increase or decrease of five percent (5a) per annum or. (B) the appraised fair market value of the land with the use restricted to the use for which Declarant notifies Grantee at the time of exercise of the option that it intends to use the Land. Declarant shall notify Grantee that it Intends to use the Land either for commercial office or retail use at the time of delivery of the notice of exercise or any time thereafter (Failure of Declarant to specify a use in conjunction with delivery of a notice of exercise of the option shell not invalidate or otherwise affect exercise of the option.). The LPI adj„stment shall be the percentage increase or decrease in the CPI measured from the month which is two months prior to the Effective Date to the month which is two months before the date of delivery of the notice of exercise. 12 9-131 (Ii) The unamortized principal amount, plus interest of, and expenses (including without limitation costs to redeem and discharge Including any call premium provided that aggregate call premiums shall be limited to five percent (5a) of principal) incurred In connection with, any fee" 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 does 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 fonds held to pay the costa of issuance, if any. (e) Repurchase Escrow Terms. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consummate the purchase as specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preliminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by written notice to Grantee through escrow, shall be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the Land or any portion thereof is encumbered by a mortgage or deed of trust, Declarant may unilaterally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Crancee through the foregoing escrow. Any additional amount necessary to satisfy :iuch 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 nice showing title to the Land vested in Declarant or Its assigns free and clear of all liens, encumbrances or ether title exceptions other than those set forth in this Declaration. Any other costa or expense shell be allocated between the parties in the manner customary In Orange County, California. (f) Irrevocability. The option created hereby shall be Irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) Warranties. Plane andSoecificetona. In the event Declarant reacquires all or any portion of the Land, the Specific Facilities or the Other Improvements under this Section 5.3, Creates shall assign and transfer to Declarant for no additional consideration, all warranties, plans and specifications relating to the Usable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 9-132 ' The CPI shall be the Consumer Price Index for All Urban Conaumaro Los Angeles- Anaheim•Slversids Metropolitan Area (all items) compiled by the United States Department of Labor. Bureau of Labor Statistics, based upon 1982-84 u 100; provided, however, that if the CPI is modified or changed, then the CPI shall be a converted or substituted index as dstermivad by Declarant. Plus )B) The fair market value of the Useable 'J Improvesuats, if any, an the Land at the time the Option is exercised. The •Usesble Improvements• shall be limited to those interior areas of buildings which can be used or converted for use as interior commercial or retail rentable I� space in accordance with the use which Declarant intends to put the Useable Improvements as designated by Declarant. Fair market value of such Useable Improvements shall be determined using an income method of appraisal based upon comparable rents determined on a useable square foot basis Ear the square footage of the Useable Improvements offset by the cost of any improvements required to convert the use of the building to the use which Declarant notifies Grantee that it intends to put the Usable Improvements. Less )C] All coats, expanses, interest. fees, advances and other aurae required to be paid by Grantee to Declarant hereunder, to the � extent not reimbursed to Declarant by Grantee, shell reduce the amount of any m•1 repurchase price to be paid by Declarant under the terms of the repurchase option contained in this Declaration. Or ' (Ii) The unamortized principal amount, plus interest of, and expenses (including without limitation costs to redeem and discharge Including any call premium provided that aggregate call premiums shall be limited to five percent (5a) of principal) incurred In connection with, any fee" 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 does 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 fonds held to pay the costa of issuance, if any. (e) Repurchase Escrow Terms. Within five (5) days after Declarant's exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at First American Title Insurance Company or another escrow company selected by Declarant to consummate the purchase as specified herein, which escrow shall have a time limit of thirty (30) days extended by any period necessary to arbitrate any determination of fair market value as provided in Section 5.4 below. Said escrow shall be subject only to approval by Declarant of a then current preliminary title report. Any exceptions shown thereon created on or after the Effective Date hereof, and disapproved by written notice to Grantee through escrow, shall be removed by Grantee at its sole expense at or prior to closing of escrow. In the event that the Land or any portion thereof is encumbered by a mortgage or deed of trust, Declarant may unilaterally instruct the escrow agent to satisfy the indebtedness secured thereby out of the proceeds payable to Crancee through the foregoing escrow. Any additional amount necessary to satisfy :iuch 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 nice showing title to the Land vested in Declarant or Its assigns free and clear of all liens, encumbrances or ether title exceptions other than those set forth in this Declaration. Any other costa or expense shell be allocated between the parties in the manner customary In Orange County, California. (f) Irrevocability. The option created hereby shall be Irrevocable by Grantee, and shall be binding upon the representatives, successors and assigns of Grantee. (g) Warranties. Plane andSoecificetona. In the event Declarant reacquires all or any portion of the Land, the Specific Facilities or the Other Improvements under this Section 5.3, Creates shall assign and transfer to Declarant for no additional consideration, all warranties, plans and specifications relating to the Usable Improvements and any other improvements transferred by Grantee to Declarant hereunder. 13 9-132 5.4 Arbitration Procedure. If Declarant and Grantee are mot able to agree to the fair market value of the and or the Venable Improvements within thirty (30) days after the date Declarant given Grantee notice of exercise of the option. then the following arbitration procedure shall apply: [A) Declarant shall within an additional thirty .'30) days, at Declarant's cost, deliver to Grantee a written appraisal of the applicable highest fair market value with which Declarant agrees, prepared by an independent qualified appraiser (•Declarant'• Appraisal'). She term -independent qualified appraiser' as wed in this Section shall man a professional Independent appraiser who in a Member of the American Institute of Real Estate Appraisers (R.H. or H.A.I.), the Society of Real Estate Appraisers (S.R.A., S.R.P.A., or S.R.E.A.), the American Society of Appraisers (nether or senior member A.S.A.), or smother recognized association of appraisers, or a similar association of real estate appraisers that has adopted rules and regulations governing the profeaaional conduct and ethics of its mmbera requiring Independent appraisals without bias to any party or to any result, or has such other education and experience so as to be considered qualified by both parties. [E) If Grantee does not agree with Declarant's Appraisal, Grantee shall notify Declarant in writing of such disagreement in writing within ten (10) days after receipt of Declarant'a Appraisal. Within thirty (30) days of such notice, Grantee shall at Its cast deliver to Declarant a written appraisal of the applicable highest market value with which Grantee agrees, prepared by an independent qualified appraiser ('Grantee's Appraisal'). If Grantee fails to deliver Grantee's Appraisal within the time provided, or if Grantee's Appraisal of fair market value is lover than or equal to that contained in Declaraut'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 Crantee 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 shell be the "Final Appraisal.' If the third appraiser most be appointed pursuant to the provisions of the California Code of Civil Procedure Section 1281.6, or any successor statute. Declarant shall file a petition to appoint the third appraiser with the Superior Court of Orange County, California ("Court"), and shall set the hearing on the petition on the earliest date permitted by the Court's calendar and by the applicable notice period required by law. Declarant and Grantee shall share equally the cost of the Final Appraisal. If the Final Appraisal states a fair market value between that of Declarent's Appraisal and Grantee's Appraisal, the Final Appraisal shall be the final and binding determination of the applicable market value. If the fair market value established in the Final Appraisal in 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) She procedure set forth above for determining the applicable market value shall be the exclusive procedure therefor and shall be final, binding and noneppealable unless ,xpraosly waived by both parties in writing. It is the responsibility of Grantee to ensure that this procedure for determining highest fair market value is inscltuted in sufficient time to satisfy any commitments, agreements or needs of Grantee. 5.5 Waive . Wo Waiver by Declarant of a breach of any of the Restrictions by Grantee and no delay or failure to enforce any of the 14 J� n' U UI 1 9-133 5.8 Advances. Declarant shall be entitled to advance any sums Declarant in its sole discretion deems necessary to protect and preserve the security for its rights and interest under this Declaration (including but not limited to sums for completion of construction of the Specific Facilities or any offsite improvements, any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbrencea or liens or other charges on any portion of the Land which appear to be prior to Declarant'' rights and interest under this Declaration), all of which advnneea together with Interest at the maximum contract rate then permitted by lav 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, the Other Improvements and any other related Improvements or other work as provided for in this Declaration caused by acts of God, war, inability to obtain labor or materials or reasonable substitutes therefor, or other similar matters or causes beyond the reasonable control of Grantee shell extend the time within which this Declaration requires certain acts to be performed for a period or periods equal to any period of such prevention, delay or stoppage, but not to exceed in the aggregate one year; provided, ho4zver, 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 J performance of any act rendered difficult because of the financial condition of 15 9-134 ' Restrictions shall be construed or hold to be a valvar of any succeadiug or ! preceding breach of the ease or any other of the Restrictions. No waiver of any breach or default of Grantse hereunder shall be Implied from any emission by Declarant to tale any actio: on aceeuot of such breach or default if such breach or default persists or is repeated, and me express waiver shall affect a breach or default other than as specified in said waiver. The conseut or approval by neclarant to or of any act by Grantee requiring Declarant'' consent or approval ! 1 shall not be deemed to waive or render unnecessary Declarant'' consent or J approval to or of any subsequent similar sets by Grantee. I 5.6 Coate of Enforcement. In the event any legal or equitable action or proceeding shall be instituted between Declarant and Grantee to enforce, any provision of this Declaration, the patty prevailing in such action shall be �' entitled to recover from the losing parall of its costs, including court cost: ry I and reasonable attorneys' fees. ' 5.7 Rishts 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 effective against any subsequent owner or other occupant of the land or portion thereof whose title is acquired by foreclosure, trustee's sale or deed in lieu of foreclosure but (a) such subsequent owner shall have a reasonable time after acquiring title in which to cure any violations or correct and change any facts giving rise to Declarant's rights under this Declaration occurring prior to such transfer of title and which are reasonably capable of being cured or changed provided, that such subsequent owner diligently acts to effect sucb cure 'I 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 noneurable default i occurring prior to the time such subsequent owner acquired title. Notwithstanding the foregoing, any such subsequent owner shall be required to use the Land in accordance with the restrictions set forth in Section 2.1(a) and diligently complete construction of any Specific Facilities and Other Improvements which are incomplete on the date such subsequent owner acquires title, all subject to the requirements contained in this Declaration, except the time periods referred to in Section 2.1(c) shall be reasonably extended. For purposes of this Section, the construction or installation of any improvement in violation of the requirements of this Declaration shall be deemed -curable" so long as reconstruction, repair or replacement In a manner consistent with the requirements of this Declaration is physically and legally possible (without respect to cost). 5.8 Advances. Declarant shall be entitled to advance any sums Declarant in its sole discretion deems necessary to protect and preserve the security for its rights and interest under this Declaration (including but not limited to sums for completion of construction of the Specific Facilities or any offsite improvements, any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbrencea or liens or other charges on any portion of the Land which appear to be prior to Declarant'' rights and interest under this Declaration), all of which advnneea together with Interest at the maximum contract rate then permitted by lav 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, the Other Improvements and any other related Improvements or other work as provided for in this Declaration caused by acts of God, war, inability to obtain labor or materials or reasonable substitutes therefor, or other similar matters or causes beyond the reasonable control of Grantee shell extend the time within which this Declaration requires certain acts to be performed for a period or periods equal to any period of such prevention, delay or stoppage, but not to exceed in the aggregate one year; provided, ho4zver, 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 J performance of any act rendered difficult because of the financial condition of 15 9-134 .a:a..'Set!�YggR'SITS!✓v^oM:Rt'A�ISSR.dP.srfr•ren-n,*n,rrt,u,pr-.,,.,...,,,�..,caa„a<.,....,.,..,...,. �._...�_, - Grantee or because of any inability of Grantee to obtain funding from my source. Without limiting the generality of the foregoing, in no event shall Crantes's inability to obtain construction or permanent financing for developseat of the land, or a portion thereof, constitute an unavoidable delay pursuant to this Section. Furthermore, in no event shall aay extension of any period of time be deepd to have occurred unless Grantee shall have given written notice to Doclarant within fifteen (15) days following any such delay, anteing forth rhe facts giving rise to such extension; and provided further that the period of ties for exercise of Declarant's rights dull be eoaaenourataly extended. 6.2 Continuous Operations. Grantee shall proceed continues ly and diligently in accordance with the terns 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 oat forth in the Section hereof entitled "Unavoidable Delay." 6.3 Covenants to Run With the land: Teem. (a) Covenants to Run With the Land. The land shall be held, improved, developed, conveyed, hypothecated, encumbered, leaned, rented, wed and occupied subject to the Restrictions set forth in this Declaration. The Restrictions are for the benefit of the Benefitted Property and are intended and shall be construed ee covenants and conditions running with and binding the Land and equitable aervitudea upon the Land and every part thereof. Furthermore, all and each of the Restrictions shall be binding upon and burden all persons having or acquiring any right, title or interest in the land, or any part thereof, and their successors and assigns, and shall inure to the benefit of the Benefitted Property and the owners of the Benefitted Property, their successors and assigns, and shall be enforceable by Declarant and its successors and assigns, all upon the terms, provisions and conditions set forth herein. (b) Term. All of the terms and provisions set forth in this Declaration shall continue in full force and effect in perpetuity, except that Declarant's 'Enforcement Rights' (as described in Section 2.8 above) shall terminate twenty-five (25) years from the Effective Date hereof. (The provisions of this Declaration which shall survive in perpetuity shall include, without limitation Article 1, Sections 2.1 through 2.6, inclusive, 2.9, 2.10, Article 3, Sections 5.1. 5.2, 5.5 through 5.8, inclusive, and thin Article 6.) 6.4 Assignment by Declarant. Declarant may assign any of its rights and powers under this Declaration to any fee owner of any portion of the Benefitted Property, so long as such person or entity In writing agrees to assume the duties of Declarant pertaining to the particular rights and powers assigned. Upon the recordation of such writing accepting such assignment and assuaing such duties, such person or entity shall, to the extent of such assignment, have the same rights and powers and be subject to the same obligations and duties as are given to and assumed by Declarant herein. Without limiting the generality of the foregoing, Declarant any make such assignment as to the entire land or to any portion thereof. Unless specifically assigned in writing as stated in this paragraph, Declarant alone shall have the right to enforce the Restrictions and the other provisions of this Declaration or to recover damages or other amounts for violation of the Restrictions or breach of Grantee's duties hereunder. 6.5 Amendments. Except as provided in this Declaration concerning (a) substitution of other real property as the Benefitted Property, (b) release of any portion or all of the Land from thin Declaration, (c) reacquisition of the Land by Declarant and (d) assignment by Declarant of its rights under this Declaration, this Declaration my be rural noted, extended or amended only by a writing executed by Declarant and Grantee and recorded against the Land. 6.6 Release. (a) Release by Declarer t. Declarant may release any portion of the Land from this Declaration at any time and for any reason withqut the approval of Grantee. (b) Not Aooitcable, to Declerent. 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(&) a notice of 16 J`. n U 9-135 tersinotion of these kestrietions in the Office of the Canty Recorder of Oremga Canty, California, these Restrictions shall cesse and terminate and be of no further force or effect as to Declarant ante such property. effective as of the date of such recordation. 6.7 Notice. All notices, consent■, requests, dsaamds and other communications provided for herein shall be in writing and shall be dossed to have been duly given if and when personally served or ferry eight (48) boos after being sane by United States registered sail, return recelpe requested, postage prepared, to the other party at the following respeetive addresses: - DECIABANP: THE IRVINE COMPANY c/o IRVINE LAND MANACEKERr COMPANY Post Office Box I Newport Beach, California 92658-8904 Attention: Prosidont/IMC GRANTER: City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92659-1768 or at such other address an Declarant or Grantee may designate to the other in writing in accordance with the provision of this Section. 6.8 Governing fans. This Declaration shall be governed by and construed under the laws of the State of California. 6-9 Severabillty. 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 hold by any court of competent jurisdiction to be illegal, =11 or void or against any public policy, the remaining portions of this Declaration shall not be affected thereby and shall remain in force and effect to the full extent permitted by law. 6.10 Captions. The captions used herein are for convenience only and are not a part of this Declaration and do not in any way limit or amplify the terms and provisions hereof. 6.11 Entire Agreement. Thio Declaration, including Exhibits attached hereto which are incorporated herein by this reference, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein. The forgoing sentence shall in no way affect the validity of the Agreement pursuant to which Grantee acquired the Land or any instruments executed In connection therewith. 6.12 Gender and Number. In this Declaration (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural include one another. 6.13 Time of the Essence. Tine is of the essence of each provision of this Declaration in which time is an element. 17 J. n U 1 9-136 IN WITNESS VNEIMP, the undersigned have executed this Declaration as of the date written below. 'DECLARANT' .&-ARM. THE IEVIHE COMPANY. CITY OF mwpoQT BEAQI, a Nlebigam corporation a California mum£e pal corporation A�s��.n 6y: L Ey: .Oen r� Its:Ytd:e. a sew I Mayor By: ATTEST: Its: Q6 Pei V By: ( Ica: lCify Clerk APPEO RECOMMENDED By: Ica: City Manager APYAOV To FORM: By: res: City Attorney STATE OF CALIFORNIA 1 �/j�� �� Cowry OF (/ M I' On thin Wday of ' In the year 197 .,4- no. the undersigned, a Notary Public a d for said State, personally peared 'f. snd fl y ;P.,i . personally known to m or proved to m on the bas s of satisfs eo '_evidence) to be the pera o xa executed the within instruent as,5iioGJln�- and respectively, on behalf of THE IRVINE COMPANY and acknowledged to ne that syd corporation executed it. i WITNESS my hand and official seal. - - - - R MEY �mas>et Wm �E ecmWM� . Notary Public in and fors -id State I �tcena.ozi Is J n U U 9-137 an= of CAW O1IIa ) 7 ) can COUNTY OF ORAMOB ) _ On Iferoh 19. 199], before Me, the Undersigned, a Notary ' Public in and for the state, personally appeared EhLLAaLMM, U known to Y to be the Mayor, Robert L_Wv n, known to 7e to be the City Manager, aM w■sea E_ Raevie_ known to me to be the City Clerk, on behalf of the CSTY OF N6NPON.'P BEMS, which executed the _ within instrument pursuant to governing lar and a resolution of its i board of directors and acknowledge to me that the CITY Or NEWPORT Be1CH executed it. WITNESS =y hand and official a" I OFNIC" i SEAL. 6 Notary Public in 4pa ror 8 Ylkldli LTN mkIFR A➢ WARK0OYtaea eewEoxen y�edm..eaxuwx 9-138 R7DLIBIT 1 To Declaration of Special Restrictions Legal Description of 'Benefitted Property• I 9-139 E)WISIT "I" LHCAL DESCRIPTION BENEFITED PROPERTY FOR THE CITY OF NEWPORT BEACH LIBRARY SITE Parcel 1 (500 and 550 Newport Center Drive and Adjacent Land) That portion of Block 93 of Irvine's Subdivision 1n the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book i, Page 88 of Miscellaneous Records Maps in the Office of the County Recorder of said Orange County, described as follows: BEGINNING at the easterly terminus of that certain course shown as having a bearing and length of "South 80'141380 East 91.45 feet" in the northerly right. of -way line of San Nicolas Drive on a map of Tract No. 6015, filed In Book 239, Pages 28 through 41 of Miscellaneous Maps in said Office of the County Retarder; thence along said right line and along the easterly right-of-way line of Newport Center Drive East, the southerly right-of-way line of Santa Rosa Drive and the southwesterly right-of-way line of San Joaquin Hills Road, all as shown on said map of Tract No. 6015 through the following courses: North 80'14.38• 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 87'26'49" to a point of reverse curvature with e 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 foot through a central angle of 16'11'54" to a point of reverse curvature with a curve concave southeasterly and having a radius of 25.00 feet, a radial line of said curve from said point bears North 81'00117• East; thence along said curve northerly and northeasterly 38.16 feet through a central angle of 87'26'49"; 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 radius of 25.00 feet; thence along said curve northeasterly and easterly 38.96 feet through a central angle of 89'17126" to a point of reverse curvature with a curve concave northeasterly and having a radius of 6072.50 feet, a radial line of said curve from said point bears North 46'52'09" East; thence along said curve southeasterly 329.29 feet through a central angel of 3'06'25"; thence tangent from said curve South 46'14116" East 31.81 feet to the northerly corner of Parcel 1 as shown on a map filed in Book 13, Page 41 of Parcel Maps in said Office of the County Recorder; thence leaving said southwesterly right-of-vay 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 easterly 39.27 fent through a central angle of 90'00100"; thence tangent from said curve North 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 30'19.01" to a ran -tangent intersection with said southwesterly right-of-way of Sen Joaquin Hills Road; thence leaving said boundary and along said right-of-way line South 46'14'16" Beat 48.72 feet to the northerly corner of Parcel 1 as shown an a map filed in Book 21, Page 18 of Parcel Haps in said Office of the county Recorder, said corner being a point in a non -tangent curve concave southeasterly and having a radius of 25.00 feet, a redial line of said curve from said point bears South 16'06'05" East; thence along the boundary of amid Parcel 1 the following courses; along said curve southwesterly 13.00 feet through a centra). angle of 29'47.41"; thence tangent from said curve South 44'D6'14" West 104.09 feet to the beginning of a tangent curve concave easterly and having a radius of 25.00 feet; thence along said curve southwesterly and southerly 39.27 feet through a central angle of 90'000000; thence tangent from said curve South 45'53'46• East 186.00 fact to the westerly corner of Parcel 1 as shown on a map filed in Book 54, Page 23 of Parcel Maps In said Office of County Recorder; thence leaving the boundary of Parcel 1 as shown �mn s L.a.l D..nrptl° of 'em.t R.e Pre rar- aoesPPaP.m 1 motb tt, int 1111111m:. er �. J '. n U q 9-140 •on said nap Filed in Book 21, Page 18 of Parcel Maps and dons the boundary of Parcel 1 as shorn en maid nap filed in Book 54, Page 23 of Parcel Mspm South 45'53.46• East 68.09 feet to the beginning of a tangent curve concave westerly and having a radius of 40.00 feet; theme continuing along said boundary and said curve southeasterly 36.39 feet through a central angle of 52'07.23' to the northwesterly corner of Parcel 3 as shown on Parcel Map No. 84-706 filed in Book 192, Pages 1 and 2 of Parcel Maps in said Office of the County Recorder, a radial Line of said curve from said corner bears Worth 93'46123• West; thence atom the boundary of said Parcel 3 and Parcel 2 as shown en said Parcel Map the following Courses: continuing along said curve southerly 26.44 feet through a central angel of 37'52137•; thence tangent from said curve South 44'06'140 West 289.00 feet to the northeasterly corner of Parcel 1 as shown on a map filed in Bs- k 27. Page 43 of Parcel Maps in said Office of the County Recorder, acid corner being the beginning of a curve tangent to last said course, concave northerly and having a radius of 40.00 feet: 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 90'00'001; thence tangent from said curve North 45'53.46• West 14.11 feet to the beginning of a tangent curve concave southerly and having a radius of 25.00 feet; thence along said curve northwesterly and westerly 39.27 feet through a central angle of 90'00'00•; thence tangent from said curve South 44'06.14• 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 -ray line of said San Nicolas Drive as described in a Grant of Easement to the City of Newport Beech recorded in gook 8987, Page 836 of Official Records in said Office of the County Recorder; thence leaving said boundary of Parcel 1 and along said right-of-way line as described In said Grant of Easement and as shown on said map of Tract No. 6015 the following courses: North 46'44'00• West 92.34 feet to the beginning of a tangent curve concave southwesterly and having a radius of 950.50 feet; thence along said curve northwesterly 555.92 feet through a central angle of 33'30138' 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 nap filed in Book 239. pages 28 through 41, Miscellaneous Maps, records of said County, lying within the following described boundary: Comaencing at the center line intersection of Santa Rosa Drive with Newport Center Drive East as shown on said map; thence south 78'27'06• West 48.00 feet along the Westerly prolongation of the center line of said Santa Rosa Drive to a point on a non -tangent curve concave, Westerly and having a radius of 1557.00 feet, said point being the True Point of Beginning, a radial to said point bears North 78'27'06• East, said curve being concentric with the canter line of said Newport Center Drive Last; thence Southerly 1314.59 feet along amid curve through an angle of 48'22'31' to the beginning of s compound curve concave Northerly and having a radius of 757.00 feet; thence Westerly 1464.87 feet along said curve through an angle of 110'52'24• 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 feat; thence Easterly 2438.09 feet along said curve through an angle ol: 155'43'57• to the beginning of a compound curve concave Westerly and Savin; a radius of 1557.00 feet; thence Southerly 117.38 fact along said curve through an angle of 4'19'10• to the True Point of Beginning. aene[a [ L•N[ aucrnplrm •e 9e•[nnb tt mrrar.on. 2 rr.r•s IS. [[. IM 9-141 /: . . MMIRIT 2 To Declaration of Special Restrictions Requirasents for Specific Facilities n u ►r C i 9-142 RMnRB!ffiJIS FOR SPECIFIC FACILITIES Description of Specific Facilities: A free public library and related driveways, aeeeaaways and ImAseaping. 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 HinimHm Cross Floor Area: 10,000 square feet* Hamm m Cross Floor Area: 65,000 square feet* Maximum Floor Area Ratio: 50 percent I Commencement Date: 12 months from Effective Date Completion Date: 36 months from Effective Date * By setting forth any required minimum or maximm groes foot area above, Declarant does not thereby represent or warrant that Buyer shall be able to develop the Land for such density. REQUIREMENTS FOR OTHER IMPROV@NE7fS Those improvements required by Exbr2it I to the Exchange Agreement. Asowro.on. sp•clLL wtilcuar sauna s ,P«anc r«�uu« a«a aH, >Iw n U U 1 1 9-143 I To Declaration of Special Restrictions Subordination Agreeoent • Ulmn Recorded Nail To: INS IRVINE COMPANY 550 Newport Center Drive Newport Reach, CA 92660 Attention: President/IWC 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 LOVER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTR@ffiiT. I. PARTIES AND DATE. This Subordination Agreement (-Agreement") is made this day of 19 by the CITY OF NEWPORT BRACH, 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. ACKNOWLEDCMFNIS I Owner has executed a Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase (the 'Declaration') dated , 19_, and recorded on as Instrument No. in the Official Records of Orange County California as an encumbrance on the title of the real property described as: Parcel in the City of Newport Beach, County of Orange. State of California, as shown on a parcel map filed in Book , Pages_ to Inclusive, of Parcel Napa, in the office of the County Recorder I of Orange County (the *Land"). Owner has executed, or is about to execute, certain loan documents ("Loan Documents") dated 19_ with or in favor of ("[ender') to obtain and evidence a loan (the 'Loan") from Lender in the amount of $ The Loan Documents have all been delivered to TIC and include, without limitation, a Deed of Trust (the "Deed of Trust') to be recorded concurrently with this Agreement es security for the obligations evidenced by the Loan Documents. Lander is incurring its obligations in connection with the Loan in good faith and for value pursuant to an agreement with Owner, on which TIC is relying and which is memorialized in the loan Documents, that the proceeds of the Loan will be expended solely for f£n•ncing or refinancing of construction of certain improvements on the Land, the plane and specifications for which have been, or will, prior to the commencement of construction, be approved by TIC, all in accordance with the provisions of the Loan Documents, and for no other purpose unless approved by TIC in writing in Its sole discretion. _ A condition precedent to Loader's agreement to make the Loan in that the Deed of Trust shall be and remain at all times a lion 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 Lander make the loan to Owner. This Agreement is made in consideration of the mutual benefits ep••1•I M•trl•t1oN uamlt i aw•.aln•tlrn 4n�•nuLrte II. lMi j R U 9-145 By: Its: ATTEST: By Its: APPROVED AS TO FORM: By:_ Its: City Attorney Sga.L 4.41etfeu menu s 2 1wm101a U= M.c�uwr. 11, fad 9-146 to TIC and Owner resulting from the loan and for other valuable consideration, the receipt and sufficiency of which is acknowledged by TIC and Caner. �. --- L1I. soeoanit°.:TION. J The Dead of Trust and/q affy nmala or •ateoafona thereof shall be and 1 =Dain at all time a lion or charge on the Lead prior and superior to 1 Declarant's right of first refusal contained 1n Article 4 of the Declaration and U the option to repurchaas contained in Section 5.3 of the Declaration, (collectively, the mEnEorcenant Rights-); provided, however, that (1) the UDeclaration (including the Enforcement Rights) shall be binding upon and �— effective againat any subsequent owner or other occupant of the land or day I portion thereof whose title 1s acquired by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise as provided in Section 5.7 of the Declaration, and (2) any subsequent owner shall have the cure rights as provided in Scotian 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 1 shall survive such proceeding and shall be binding upon any aubsequent owner acquiring tltls from Lender as stated above. IV. MISCELIA14EOUS 7 A. Entire Arreement. _ This Agreement shall be the whole and only agreement between TIC and Omar with regard to the subordination of TIC's Enforcement Rights and remedies under the Declaration to the lien or charge of the Dead of Trust. R. Attorneys' Fees. The prevailing party in any litigation respecting this Agreement shall be entitled to reimbursement of attorney's fees and costs, whether or not taxable, incurred in the litigation. i •TIC" "OWNER' THE IRVINE COMPANY. CITY OF NEWPORT BEACH a Michigan corporation By: By: Its: Its: Mayor By: Its: ATTEST: By Its: APPROVED AS TO FORM: By:_ Its: City Attorney Sga.L 4.41etfeu menu s 2 1wm101a U= M.c�uwr. 11, fad 9-146 3• BUTS OF CALIFORNIA ) ).n COUNTY OF ) on , 19_, before r, the undersigned, a Notary Public In and for said State, personally appeared and personally known to sae (or proved to sae on the basis of satisfactory evidence) to be the persona who executed the within Instrument as and on behalf of THE IRVINE COMPANY, a Michigan corporation, and acknowledged to se th-t said corporation executed it. WITNESS ry hand and official seal. Notary Public in and for said State STATE OF CALIFORNIA 1 I.ea COUNTY OF ) On 19_, before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Mayor, on behalf of City of Newport Beach, which executed the within lnstrument pursuant to governing law and a resolution of its board of directors and acknowledged to an that the City of Newport Beach executed Lt. WITNESS my hand and official seal. Notary Public in and for said State 3p 1.k 6LYae Lim CdgaL a daOedVe.efL 1 a♦LrdaO.U. dera�otm.c 11. IM ei 9-147 RECORDED REQUESTED BY AND WHEN RECORDED, RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 3300 Newport Boulevard Newport Beach, CA 92659 -1768 WITH A COPY TO: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel's Office Exempt recording requested per Gov. Code 6103 This Document was electronically recorded by ER Cert Mail F Recorded in Official Records, Orange County Tom Daly, Clerk- Recorder Jill j[IIIINjjjjjI jjIIIIJ111III11jjjjjj�j NO FEE 2008000480501 10 :51am 10/17/08 213 92 A1213 0.00 0.00 0,00 0.00 0.00 0.00 0.00 0.00 EXEMPT RECORDING REQUEST PEE R (Space above line for Recorders use only) G04'ERNMENI CODE 27333 (Company AGREEMENT (Company Improvements in Avocado Avenue Open Space Parcel) S1L This Encroachment Agreement ( "Agreement') is made and entered into this 1 day of J)z fe6 , 2008, by and between the CITY OF NEWPORT BEACH, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and laws of the State of California ( "City's, and THE IRVINE COMPANY LLC, a Delaware limited liability company ( "Company's. City and Company are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. WHEREAS, City owns that certain parcel of open space land located within the city limits of City as described on ,Exhibit A and depicted on Exhibit B attached hereto (the "City Parcel'). The City Parcel is bordered by MacArthur Boulevard on the east, San Miguel Avenue on the south, Avocado Avenue on the west, and the Orange County Transportation Authority transportation center on the north. B. WHEREAS, Company is the owner of that certain retail shopping center known as "Fashion Island" and various office and other properties within the area depicted as the "Newport Center" on Exhibit C attached hereto (hereinafter, the retail shopping center, office and other properties owned by Company within Newport Center are collectively referred to as the "Company Properties "). C. WHEREAS, in connection with the operation of the Company Properties, Company desires to continue to operate and maintain certain signs, entry monuments, lighting, landscaping, landscape irrigation systems, paved sidewalks and related improvements (collectively, the "Company Improvements' located within the portions of the City Parcel 30209 -01021367 379.7 9f10102, depicted on Exhibit D attached hereto (which portions are identified on Exhibit D as the "Entry Monument Area" and the "Sign Area "). The Entry Monument Area and the Sign Area are sometimes referred to herein collectively as the "Maintenance Areas." D. WHEREAS, City is willing to allow Company to install and maintain the Company Improvements within the Maintenance Areas, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the above recitals and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: AGREEMENT 1. Permit. City will permit Company to construct, reconstruct, install, maintain, use, operate, repair and replace (a) the Company Improvements within the Maintenance Areas depicted on Exhibit D attached hereto; and (b) existing landscape irrigation lines within the City Parcel that are used to irrigate the Maintenance Areas. City also will allow Company to take all reasonable measures necessary or convenient in accomplishing such activities. The Company Improvements have previously been installed in the Sign Area and the Entry Monument Area portions of the City Parcel, and any additions or substantial changes to such Company Improvements, or the addition of new Company Improvements, shall be subject to Section 3 below. 2. Standard of Maintenance. Company shall, at its sole cost and expense, maintain the Company Improvements installed within the Maintenance Areas in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. Company's maintenance obligation shall also include replacement of the Company Improvements, where necessary. All replacements and repairs shall be consistent with similar improvements maintained on the Company Properties within Newport Center and other first - class regional shopping malls in Orange County, California. In addition, Company is responsible for the cost of providing water and any other utilities required in connection with the Company Improvements installed within the Maintenance Areas. Nothing contained herein, however, shall be construed to require Company to maintain, replace or repair any improvements owned by the City (the "City Facilities ") within the City Parcel, except to the extent that the operation or maintenance of the Company Improvements causes damage to the City Facilities. 3. Alteration of Company Improvements. Company shall not substantially alter the Company Improvements from their condition as of the date of recordation of this Agreement, nor add additional Company Improvements within the Maintenance Areas, without the prior written approval of City. 4. Relocation of Maintenance Areas. City acknowledges that the signage, entry monuments, landscaping and other Company Improvements are of critical importance in creating an entry statement for the Company Properties within Newport Center. Therefore, in the event that construction or alteration of additional roadway or other public improvements approved by City result in the elimination of all or any portion of the Maintenance Areas (the "Eliminated Portion "), then City shall replace and relocate the Eliminated Portion(s) to a substantially similar 30209.0.102/367379.7 9/10/08 -2- location within the City Parcel mutually acceptable to Company and City, with the intention of the parties being to minimize impacts on Company and the Company Properties within Newport Center caused by the elimination of such portion(s) of the Maintenance Areas. In the event of any such relocation of any portion(s) of the Maintenance Areas pursuant to this section, the parties agree to cooperate to execute any amendments to this Agreement as are reasonably necessary to reflect such relocation of the portion(s) of the Maintenance Areas and the termination of this Agreement as to the Eliminated Portion(s) that have been relocated. 5. Failure to Perform. If Company fails to fulfill its maintenance or other responsibilities under this Agreement, City may provide Company with written notice of such failure describing the deficiencies in reasonable detail (the "Deficiency Notice'. If such deficiency is not corrected within thirty (30) calendar days of Company's receipt of the Deficiency Notice, City shall have the right, but not the obligation, to cure the deficiency; provided, however, that if the deficiency is of a type that cannot reasonably be cured within such period, it will be deemed cured if Company commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. If City elects to cure the deficiency, Company shall reimburse City for its actual and reasonable costs incurred in curing the deficiency within thirty (30) calendar days of Company's receipt of City's invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by City. 6. Liens. Company shall not suffer or permit to be enforced against the City Parcel any mechanics, laborers, materialmens, contractors, subcontractors, or any other liens, claims or demands arising from any maintenance or other work performed by Company within the Maintenance Areas, but Company shall pay or cause to be paid all of said liens, claims and demands before any action is brought to enforce the same against the City Parcel. 7. City Maintenance of City Facilities. City acknowledges that it, or the applicable utility company, will remain responsible for maintenance and repair of any City Facilities within the City Parcel. In the event that City finds it necessary to enter the Maintenance Areas to maintain, repair, replace, remove or enlarge (collectively, the "Repairs' any of the City Facilities, City may, after ten (10) calendar days prior notice to Company (except in case of emergency, in which event no prior notice is required), remove such portions of the Company Improvements within the Maintenance Areas as necessary to accomplish the Repairs. In such event: a. City agrees to minimize, to the extent feasible, the portions of the Company Improvements that must be removed to accomplish the Repairs, and to coordinate with Company regarding cutting of irrigation lines and alterations of Company Improvements so as to minimize disruption of the Company Improvements and the effect of the Repairs on unaffected portions of the Maintenance Areas. (The portion of the Maintenance Areas affected by the Repairs is referred to herein as the "Affected Area.' b. City shall complete the Repairs in a diligent manner so as to minimize the time that the Maintenance Areas are disrupted by the Repairs. C. City shall bear the cost of removing the Company Improvements from the Affected Area to accommodate the City's Repairs. 30209 -0102/367379.7 9/10/08 -3- d. Upon completion of the City's Repairs, Company shall be responsible for arranging for any replacement or restoration of the Company Improvements within the Affected Area, and for all costs associated therewith. Notwithstanding the foregoing, however, City shall be responsible for reimbursing Company for the cost of replacement or restoration of Company Improvements in the event that such improvements are damaged as a result of the negligence or willful misconduct of City's contractor while performing the Repairs. S. Term. This Agreement shall remain in effect for so long as one or more of the Company Properties within Newport Center are operated; provided, however, that (a) City may terminate this Agreement upon thirty (30) calendar days' prior written notice to Company in the event that Company fails to perform or cure any failure to perform within the times provided in Section 5 above, and (b) Company may terminate this Agreement by providing thirty (30) calendar days' prior written notice to City, in which event Company shall be responsible for removing the Company Improvements and, to the extent that any City Facilities would otherwise have been used in place of the Company Improvements (e.g., directional signs), replacing them with City's then standard City Facilities, unless City otherwise directs Company to keep the Company Improvements in place. In addition, if City determines that it needs to use any portion or all of the Maintenance Areas where the Company Improvements are located, City may, upon sixty (60) calendar days' prior notice to Company, terminate this Agreement as to all or any portion of the Maintenance Areas as needed by City for public use. However, promptly after giving such notice of intended termination to Company, City agrees to meet with Company to discuss alternatives that would avoid or minimize any such termination. The final determination as to whether to adopt or reject any such alternatives shall be made by City in its sole discretion. 9. Assignment. Company may assign its rights and obligations under this Agreement to any person or entity (each, a "Successor ") which has, in City's reasonable opinion, the financial capacity and is otherwise capable of performing the maintenance work to be performed hereunder, including but not limited to any commercial or residential association within Newport Center responsible for maintenance of landscaped or other common areas, a subsequent owner of one or more of the Company Properties within Newport Center, or any affiliate of Company (that is, any entity controlling, controlled by or under common control of Company). Any such assignment must be in writing, must contain the Successor's agreement to be fizlly bound by the terms and provisions of this Agreement, and a copy of such assignment must be delivered to City. After the effective date of any such assignment by Company, Company shall have no further rights or obligations hereunder. 10. Insurance. Any Successor (other than an affiliate of Company) shall obtain, provide and maintain, at its sole cost and expense, a policy or policies of liability insurance of the type and amounts specified below and in form reasonably satisfactory to City, and shall also require in its contracts with any contractors that perform any design, installation, maintenance or other work in the Maintenance Areas, that such contractors also provide the same insurance coverage as outlined herein at all times during the performance of any such work; at no cost or expense to City; policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to performance of any work 30209-0102/367379.7 9/10/08 -4- within the Maintenance Areas. Except for workers' compensation and any errors and omissions coverage, all insurance policies shall, to the extent coverage is provided under such policies, add City, its elected and appointed officials, officers, agents, representatives and employees as additional insureds for all liability arising from the design, installation and maintenance of the Company Improvements. Insurance policies for the following coverages, with original endorsements related to the Company Improvements and the maintenance work to be performed hereunder, shall be issued by companies approved or licensed to do business in California and assigned Best's A- VII or other rating acceptable to City: a. Workers compensation insurance, including "Waiver of Subrogation" clause, covering all employees of such contractor, per the laws of the State of California. b. Commercial general liability insurance, including additional insured and primary and non - contributory wording, covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $2 million combined single limit per occurrence for bodily injury and property damage. If commercial general liability insurance or other form with a general aggregate 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 twice the occurrence limit. C. Commercial auto liability and property insurance, including additional insured (and primary and non - contributory wording for waste haulers only), covering any owned and rented vehicles of such contractor in a minimum amount of $2 million combined single limit per accident for bodily injury and property damage. d. For any contractors providing design services, professional errors and omissions insurance, which covers the services to be performed in connection with any improvements to be installed within the Maintenance Areas, in the minimum amount of$1 million. City may, from time to time, require increases in the amounts of coverage specified above to conform with the levels of insurance required in City landscape maintenance or similar contracts. Said policy or policies shall be endorsed to state that coverage shall not be subject to cancellation or non- renewal without thirty (30) days prior written notice to be delivered to City. All contractors providing insurance as required hereunder shall give City prompt and timely notice of claim made or suit instituted arising out of contractor's work on the Maintenance Area. Each contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance that in its own judgment may be necessary for its property protection and prosecution of the work. Each contractor will be required to agree that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, contractor shall look solely to its insurance for recovery. The workers compensation policy and any other policy pertaining to the Maintenance Areas carried by each contractor will contain a 30209- 0102/367379.7 9/10/08 -5- waiver of subrogation with respect to City as to any claims that may be asserted against City by virtue of the payment of any loss under such insurance. 11. Indemnifi cation. Company shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees when outside attorneys are used (collectively, the "Claims'), whether incurred by or made against City or made by any third party, arising from or related to (a) Company's design, installation or maintenance of the Company Improvements, (b) the acts of Company or its contractors within the Maintenance Areas, and (c) Company's performance of its obligations hereunder; provided, however, that Company's indemnity obligations under this Agreement shall not apply to the extent that any Claim is caused by the negligence or willful misconduct of City or City's contractors within the City Parcel. 12. Run with the Land. This Agreement and the terms, conditions and covenants contained herein shall be perpetual in nature and shall run with the City Parcel and the Company Properties within Newport Center owned by Company as of the date of recordation of this Encroachment Agreement, and shall be binding upon and inure to the benefit of Company and City and the successors and assigns of each party, whether the interest held by such party is in fee or otherwise. This Agreement shall be recorded in the Office of the County Recorder of Orange County, California. 13. Notices. All Notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: If to City: City of Newport Beach 3300 Newport Boulevard (P.O. Box 1768) Newport Beach , California 92658-8915 Attention: City Manager If to Company: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel Either party may change its address for notice by providing written notice of such changed address to the other. 14. Incomoration of Recitals and Exhibits. The Recitals to this Agreement, and Exhibits A. B, C and D attached hereto, are hereby incorporated herein by this reference. 15. Authoritv. The Parties represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 16. Amendment. This Agreement may be amended only by a written instrument approved and executed by the Parties- 30209-01020673179.7 9/10108 -6- 17. Priority. Company agrees that this Agreement shall always be prior and superior to and shall be recorded prior to any mortgage, deed of trust or any other hypothecation or security hereafter placed on any of the Company Properties within Newport Center. 18. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 19. Entire Agreement. This Agreement, together with the Exhibits attached hereto and the Encroachment Permit for the Company Improvements to be executed prior to construction of the Company Improvements, constitutes the entire Agreement between the Parties pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the Parties, whether oral or written, are hereby superseded and merged herein. IN WITNESS WHEREOF; the Parties have executed this Agreement as of the day and year first above written. "Company" The Irvine Company LLC, a Delaware limited liability company M Q0,o J . lu/&- Ronald J. Keith Executive Vice President Commercial Property Development Investment Properties Qroup,/ Brigid UC McMahon Assistant Secretary "City" City of Ne ort Beach a Califo m it al o joati o n By Mayor ATTEST: APPROVED FORM: By: City Attorney City Clerk 0. EnLF 30209- 0102/367379.7 9/10108 -7- STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE On October 1, , 2008, before me, Joni Grossman a Notary Public in and for said State, personally appeared Ronald J. Keith, who proved to me on the basis of satisfactory evidence to be the perso hose name Is are subscribed to the within instrument and acknowledged to me that e he /they executed the same in hi er /their authorized capacity(ies), and that by his er /their signaturekoon the instrument the person(.s?), or the entity upon behalf of which the person(a)- 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. 11 commxuon 0 173093 [ Nagy mite - COII4OIM6 � (SEAL) 1 aalpp coumy f�rr.. OOIF11166pM1 t.�9011 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) in and for said State NOTARY: JONI GROSSMAN TELEPHONE # 949- 720 -2582 COMMISSION #1736093 COUNTY: ORANGECOUNTY COMM.. EXPIRES. APRIL 30, 201 1 On October 1 , 2008, before me, Joni Grossman , a Notary Public in and for said State, personally appeared Brigid D. McMahon, who proved to me on the basis of satisfactory evidence to be the person( whose nam "fs e subscribed to the within instrument and acknowledged to me that he Sh they executed the same in his Ie 'their authorized capacity-(i.®s), and that by hi /her their signature(g) on the instrument the person(a)s or the entity upon behalf of which the person 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. J-O5 i 2 4 w�, Notary Public �n and for said State (SEAL) Comndsftn t 173603 NOTARY: JONI GROSSMAN MM" Pubuc - Cad— TELEPHONE # 949 -720 -2582 010nQ* COUnty COMMISSION #1736093 9gp011 COUNTY: ORANGE COUNTY COMM. EXPIRES: APRIL 30, 2011 30209 -0102/367379.7 9/10i08 -8- STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On 0 *S?Cll l� , 2008, before me, �^ I 1 a� I (- a Notary Public in and for said State; personally appeared ♦i(j{WEIA V X[LLVI , who proved to me on the basis of satisfactory evidence to be the person("hose names} is/aft- subscribed to the within instrument and acknowledged to me that he /she*tey executed the same in his/hen4terr authorized capacity(-ies), and that by his'herA Lir signature(s) on the instrument the person(s); or the entity upon behalf of which the person(4acted, 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. �K;(A --- Notary Public in A for said State (SEAL) LEunNI 1 BROWN _ CommWlon# 1633477 Notory Pubfic - CaMomia Orange County My Comm. DowsJan23.201 30209 -0102/367379.7 MOM -9- Revised August 27, 2008 July 7, 2008 JN 10- 105906 Page 1 of 1 ENCROACHMENT AGREEMENT EXHIBIT "A" LEGAL DESCRIPTION OF THE CITY PARCEL (A. P.N. 442- 014 -24) That certain real property in the City of Newport Beach, County of Orange, State of California being that certain parcel designated "Remaining Parcel" on the map of Parcel Map No. 88 -163 filed in Book 253, Pages 34 and 35 of Parcel Maps, in the Office of the County Recorder of said Orange County. As shown on EXHIBIT "B" attached and by this reference made a part hereof. Gregory A. Helmer, L.S. 5134 Date Valid Through 61301g9 I r 51'oA���i RBF Consulting 14725 Alton Parkway Irvine, California 92618 H:\pdan\10105906\AdniinU.egals\5906-l.GL-OS.doe ENCROACHMENTAGREEMENT EXHIBIT "B" / / PARCEL IN P.M.B. 91 / 19 \ ` PARCEL 1 PARCEL 2 / P.M. N0. 83 -279 y P.M.B. 193/17 -18 / \, PARCEL '2 ' P.M.B. 37/23 / Q' �VE 461 y �C <F.M.B. P.M. 27/43 P.M.B. oR 4 PARCEL i PARKING MOY - CRY PARCEL 'REMAINING PARCEL' P.M. N0. W163 P.M.B. 253 If 34-35 � �yy N0. 88 -163 I PCL. 2 253/34 -35 Y � CITY PARCEL DEPICTION OF CITY PARCEL ADDRESS: 1450 AVOCADO AVENUE REVISED AUGUST 27, 2008 JUNE 3, 2008 BNARRIS 8/27/08 8!56 .m ENCROACHMENTAGREEMENT EXHIBIT "C" FORD R�qD o BONITA CANYON ROAD O m 0 X/ /f�" of j,�j,�`%'`` ,� ��'' ���,�'`` •''dam , 0 , ' % //%,,' NEIYPORT CENTER PLiNNING • GESIGN • CONSTRUCTION MW. "'�Algo�`. 0 6W2 M Y DEPICTION OF NEWPORT CENTER CONSULTING 9494723505 • PAX M4723 • wrnR cem REVISED AUGUST 27, 2008 JUNE 3, 2008 H: \PDATA \10105906 \IMAGES \E%HIBITS\NEWPORT PAMNG ST OY— MIKEE _0W2D8\REVISED_D82506 \ESHI8I1_C 08250B.DWG SHARRIS 8/27/08 8:57 am ENCROACHMENTAGREEMENT EXHIBIT "D" \ \ \ ` P.M. N0. 88 -753 �+,`� P.M.B. 27/43 \ / / (PCL. P.M.B.. 253/34 -3 Qv PARCEL 1 \ / PARCEL 19 P.M.B. 91 / 19 \� / PARCEL 1 / 8 / 4 PARCEL 2 \ / P.M. N0: 83 -279 y SIGN AREA P.M.B. 193/17 -18 / 7S PARCEL 2 P.M.B. 37/23 Q CITY PARCEL "REMAINING PARCEL' P.M. NO. 88 -163 P.M.B. 253134 -35 ENTRY MONUMENT AREA CITY PARCEL PARKING DEPICTION OF MAINTENANCE AREAS I ADDRESS: 1450 AVOCADO AVENUE REVISED AUGUST 2' 2DD8 JULY 9, 2008 il9 8 /27/08 9:03 am . .73//00 CITY OF NEWPORT BEACH l 2 Will CITY COUNCIL STAFF REPORT 7r yr r Agenda Item No. 17 November 12, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Larry Tucker, Chairman City Hall and Park Master Plan Design Committee SUBJECT: City Hall Design Committee — DRAFT Final Report ISSUE: This document is the draft Final Report of the City Hail Design Committee ( "Design Committee "). It is anticipated that this draft Final Report will become the Final Report at the Design Committee's meeting of November 10, 2008. The Final Report will be presented to the City Council on November 25, 2008 at which time any changes to this draft Final Report will be brought to the attention of the Council. COUNCIL ACTION: Receive and File. DISCUSSION: I — COMMITTEE FORMATION, TASKS By Resolution 2008 -14 (see Exhibit A), on February 26, 2008, the City Council established the 6- member City Hall Design Committee ( "Design Committee "), The purpose of the Design Committee is to: A. Issue a Request for Qualifications (RFQ) to world class architects interested in participating in a design competition for the City Hall and Park Master Plan project, B. In consultation with the Ad Hoc Building Committee, develop recommendations for a detailed set of General Design Parameters to be used by the participating architects; C. Review the qualifications of architects who respond to the RFQ; D. Recommend to the City Council three to four architects to participate in the design competition; E. Review design concepts submitted by the selected architects, and hold public meetings to receive public input on the design concepts; and F. Recommend an architect and design concept to the City Council. The members of the Design Committee are: • Larry Tucker (Chair and ex officio); • Andy Bowden, Licensed Landscape Architect; • Rush Hill, Licensed Architect; • Walt Richardson, Licensed Architect, • City Hall and Park Design Wpebt➢on — Draft Final Report November 12, 2008 Page 2 Steve Sandland' Licensed Architect, and Linda Taylor, Licensed Architect. The Design Committee has also provided technical support for the City Council Ad Hoc Building Committee (formed on March 11, 2008 by Resolution 2008 -16 and referred to as the "Building Committee "). Mayor Ed Selich and Councilmembers Steve Rosansky and Mike Henn comprise the Building Committee. In consultation with the Building Committee, the Design Committee accomplished the following tasks in addition to Items A -E above: 1. Received questions and proposed answers in regards to the terms of the RFQ. 2. Suggested edits to the General Design Parameters (see Exhibit B), the document that sets forth the design constraints applicable to the City Hall and Park site 3. Prepared a Judging Procedure and Criteria (see Exhibits C and E) by which to judge the responses to the RFQ and the design competition itself; 4. Used the Judging Procedure and Criteria to review more than 50 responses to the RFQ, eventually narrowing the submittals down to thirteen (13). Prior to final selection of the top five firms for the design competition, staff contacted client references for the thirteen firms on the short list and made the comments available to the Design Committee. Five (5) firms were then selected, formally recommended to and accepted by the City Council. The five finalist firms are: • Bohlin Cywinski Jackson • Gonzalez Goodale • Johnson Fain • LPA, Inc • Rossetti 5. Accepted questions raised by the five design finalists and proposed answers prior to the submission of their designs (see Exhibit D). 6. Conducted an all day public hearing on Saturday, September 27, 2008 where each of the five finalist firms made a 45 minute presentation of their concept plans followed by a 45 minute question and answer session. 7. Held three public hearings to obtain public input regarding the five finalist firm concept plans. 8. Prepared this Report to the City Council, which includes a ranking of the designs, an explanation of the Committee's reasons for the design given the highest ranking, and Recommendations for Further Consideration by the City Council. Importantly, the RFQ and the subsequent Professional Services Agreements executed with each of the five firms provide that the designs submitted are the property of the City upon submittal. These documents, in part, read as follows: From the RFQ: The City reserves the right to divide the Project into multiple parts, to reject any and all proposals and re- solicit for new proposals, or reject any and all proposals and temporarily or permanently abandon the Project. City makes no representations, written or oral, that it will enter into any form of agreement with any respondent to the RFQ for any project and no such representation is intended or should be construed by the issuance of this RFQ. • City Hall and Park Design Wetition — Draft Final Report November 12, 2008 Page 3 Ownership of Submitted Design Documents: All design documents, DVDs, and accompanying materials submitted to the city by the firms through this RFQ process shall become the property of the City of Newport Beach upon their submission. From the PSA 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. At the Design Committee's direction, city staff placed extensive information, including agendas, minutes, the General Design Parameters, Judging Procedure, Q & A's, and various technical reports for the City Hall and Park site on the City's website (www. city. newport-beach ca us). The website became a primary method of communicating information to the design firms and to the public. The Design Committee has met on 12 occasions to date: April 7, April 21, May 5, May 19, June 2, June 16, July 28, September 27, September 29, October 13, October 27, 2008 and November 10, 2008. The meetings lasted two to three hours, except the meeting of September 27, which lasted nine hours. Each meeting was open to the public, and the agenda for each meeting was published on the City's website. Each meeting provided at least one period for public comment, but most meetings provided multiple opportunities for audience input. On Saturday, September 27`", the Design Committee held an all -day meeting during which each of the final design teams presented their concept plans to the Design Committee. Notice of the meeting of September 27 was announced by the Mayor at the City Council's meetings on September V and September 23`0. The all -day meeting was also advertised three times in the Daily Pilot and was the subject of a front page Daily Pilot article on September 24, 2008. Detailed minutes of the meetings have been published and are available for public review. The "boards" that show the five concept plans presented on September 27`" have been on display since the end of September at the Central Library, the Mariner's Branch Library, the Balboa Peninsula Branch Library, the OASIS Senior Center, the Newport Coast Community Center and City Hall. Several members of the public provided comments on special comment cards — these comments were reviewed by the Design Committee and are attached (Attachment G). In addition, commencing October 5, 2008, the presentations part of the Committee meeting of September 27 has been shown several times on the City's "NBTV" community programming channels (Channels 3/30). II — RECOMMENDATIONS The Design Committee has ranked the architects and design concepts, but also has a series of other recommendations for consideration by the City Council. • City Hall and Park Design Competition — Draft Final Report November 12, 2008 Page 4 A. - RANKING OF DESIGNS The primary purpose of the Design Committee, as noted in Resolution 2008 -14 (F), is to make a recommendation to the City Council as to the architect and design concept which the Design Committee believes that the Council should select. However, because the five designs were all well thought out, and were so varied in approach, the Design Committee concluded that it would rank the designs in order of preference and provide a commentary as to why the Committee ranked the first choice design as it did, so the City Council has the benefit of the Design Committee's thinking. Pursuant to the Judging Criteria, the Design Committee members considered four criteria in reaching their individual rankings: (i) Functionality of Design; (ii) Creativity and Timelessness of Design, (iii) Practicality, Efficiency and Constructability; and (iv) Sustainability. The Design Committee decided that each member would award 5 points for his /her top choice, 4 for his /her second choice, and so on. The Committee's point tally was as follows: Note from the above tally chart that Bohlin Cywinski Jackson (BCJ) received three top scores, while tying LPA in total points. Gonzalez Goodale and Johnson -Fain also received one top score each. Based upon the fact that a majority of the Committee ranked BCJ as its top choice, the Committee determined that it would recommend BCJ's design to the City Council as the top design. The Committee articulated the following major reasons for its decision: • The aesthetics of the structures - one Committee member said, "the design captures an iconic image for the City of Newport Beach and tries to capture the spirit of the city with the wave design of the clerestory windows and a sail design for the Council Chambers." Another said, "(BCJ's is) the most exciting design concept." • The parking structure is separate from the City Hall facility, located along the berm of MacArthur Boulevard, and will be less expensive to build than an entirely or mostly underground parking facility; • The design minimizes grading and dirt export, minimizing cost; • The design creates an airy working environment for the City staff, providing extensive glass and clerestory windows allowing significant natural light and direct sun flow into the work environment. • The design creates a people- friendly courtyard between the parking structure and City Hall, • The roof structures cover a large amount of space, allowing the buildings underneath Flexibility within the office pods that comprise the City Hall building, • City Hall and Park Design Sipetition - Draft Final Report November 12, 2008 Page 5 • BCJ was able to capitalize on inexpensive technologies for the roof /structural system. The curved steel should not be considered exotic or expensive, and most materials are 'everyday items' using very common construction technology, • There is good vehicular access from the library parking lot to the parking structure; • The design demonstrated use of sustainable design features in the building structure and systems which should result in reduced operating costs; • The landscape along Avocado Avenue is a continuation of the library landscape scheme and ties the sites together; and • The Park plan proposes to maintain as is, those areas that would require State and /or Federal permits were they to be modified. The Park design leaves most of the topography of the Park unchanged so that it is primarily a "natural park " The Design Committee noted during and after the presentations that each of the five plans could benefit from certain refinements /redesigns to the initial design The same is true of the BCJ plan. Accordingly, the Committee suggests that the City work with BCJ to redesign the following parts of the BCJ Concept Plan, and such other additional elements as the City deems appropriate: • Consider changing the "Pod" modular sections. The modular sections should be changed to improve circulation and to promote the "One Stop Shop" concept; the floor plan needs redesign since a one -stop shop on two floors and in more than one pod will not be efficient. But the fact that the design team can do any configuration of buildings under one canopy is beneficial. • Review the Sail Design Feature. Consider the modification of the sail feature to reduce the incursion into the view plane. • Add Surface Parking. The Entry plaza should be redesigned to allow for some surface parking. • Improve the Aesthetics of the Parking Structure. The proposed parking structure could benefit from a redesign so it will look less like a parking structure. • Reduce Amphitheatre and Add Parking. Consider reducing the size of the amphitheatre to create more open space. The design needs to add more parking to the north, for the park. • Integrate City Hall and the Park better. The park's integration with City Hall needs work. There is a significant conflict between vehicles and pedestrians which needs to be addressed. • Refine Council Chambers, Community Room and Parking. The Community Room needs an outdoor function area or should be combined with the Council Chambers. The Council Chambers should be able to be expanded. The Council Chambers is out front, close to Avocado, but all of the parking is behind the City Hall building. • Reduce Light and Glare. Consider using louver or other systems to address light and glare from the clerestory windows. The building should be reoriented slightly so that the clerestory windows are not as prominent from above the site BCJ's design has the highest potential for glare from the east, so mitigation needs to take place. The exposure of the west side of the building to direct sunlight should also be addressed. • Improve the Link to the Library. The eating area between the City Hall and Library could be improved to be "a nice place to go for visitors, staff, and Library patrons. This would make the Master Plan a true Civic Center that's alive and vibrant." The connection between the Library and the parking structure was never fully explained. c • City Hall and Park Design Competition - Draft Final Repoli November 12, 2008 Page 6 The point differential between the first place team and the fourth place team was narrow. If the City Council were to prefer another one of the design teams and its concept plan over BCJ and its plan, the Design Committee would be pleased to provide the City Council suggested amendments to that alternate plan if the City Council desires that the Design Committee do so. B - RECOMMENDATIONS FOR FURTHER CONSIDERATION Unlike a design competition that would ask competitors to use a flat site with circulation improvements and utilities already brought to the site, the teams in this competition had to work with a site with considerable dirt export and significant constraints as set forth in the General Design Parameters. Adding to the complexity, the design includes a park element, a City Hall element, and a significant amount of parking, all of which were to be integrated to the extent feasible with the existing Central Library. Some of the designs were stronger on the park and site design elements than others. Some were stronger on building designs or the parking solutions. So while the Committee did not have the authority to "mix and match" concepts, but only to rank the designs, the Committee does have several recommendations that the City Council may want to consider as it seeks to come up with the best possible project for the City. In other words, if the City Council were to concur with the ranking recommended by the Committee, the Council may nonetheless conclude that the highest ranked design of the Committee could be improved by incorporating concepts from other plans in the final project. Several members of the Design Committee provided written comments to the designs presented and those comments are attached in Attachment H for the City Council's edification. The Committee's Recommendations for Further Consideration are intended to provide general observations that the Council may want to consider as it implements a design. The Committee's Recommendations are as follows: 1. Design Elements. The Design Committee spent most of its meetings on September 29 and October 13, 2008 discussing the five concept plans and summarizing what the Design Committee thought were important design elements which would be desirable in any plan. The Design Committee believes that, while each concept plan and design team may not have each design element addressed at this time, the City Council may want to consider working with the selected Design Team to implement the following design elements in the Final Design (in no particular order): • Maintain the berm along MacArthur Boulevard; • Provide appropriate and effective mitigation of light and glare on the site, so that neighboring residences are not adversely affected by light and glare, • Separate pedestrian and vehicular access ways and primary circulation elements; • Provide a floor plate that will easily accommodate future modifications to internal department sizes and layouts, i.e. provide for maximum flexibility; • Be logistically feasible, understanding how the duration of construction will affect the surrounding commercial, retail and residential area; • Integrate the Library so as to develop a true civic center; • Provide for restrooms for visitors to the park; • Provide for easy parking for visitors to the park; • City Hall and Park Design Wetition - Draft Final Report November 12, 2008 Page 7 • Show strong visual and physical connectivity between the North Park Parcel to the Central Park Parcel (such as textured paving to cross San Miguel); • Consider a "cafe" , small coffee shop or coffee /snack cart or kiosk for visitors /employees in the City Hall building; • Have a vehicular connection from City Hall parking to the Library's existing parking lot, • Contain the Council Chambers and the multi - purpose community room in a single building or wing separate from the remainder of the City offices to allow for easy after - hour and weekend access to the Council Chambers and multi - purpose room. A direct link between the City offices and Council Chambers for staff and elected and appointed officials would also be recommended, • To the extent possible, design the Council Chambers and Community Room to be able to act together as a single large community space, and also provide for the possibility of useable contiguous outdoor space for community events; • Provide access to natural light from all staff workstations, • Provide continuity of landscape treatment from the Library olives along Avocado; and • Provide screening or other appropriate accommodation for roof - mounted antennas and dishes as required for City operations. 2. Design Team's Flexibility. The Design Committee believes the selected design may have significant changes as the schematic design phase of the project plans proceeds. Therefore, the Design Team selected should have a demonstrable track record of good working relationships with clients, and meeting their wishes even if those wishes are not entirely consistent with the Design Team's vision. 3. Staff Input. The City Council should review and consider the merits of the Report of the City Staff on the constructability of each Plan presented and the opinions of staff as to the functionality of each Plan (the perceived efficiency of staff work -Flow, comfort and ambience, and maintenance risks associated with the operation of the facility contemplated in each plan). This Report is included as Exhibit F. 4. 3rd Party Cost Estimator. The Committee recommends that the City Council undertake an independent investigation of the cost information submitted by each of the designs deemed a feasible alternative design by the City Council. 5. Phasing. The Final Design should depict a timeless building. However, if budget constraints would impact the ability of the City to construct the Council's preferred design, the City could consider phasing the project to construct the building in Phase I and the park in Phase II. This could be accomplished by cleaning up the existing vegetation by removing non- native species, filling in those and other barren areas with native species, irrigating only as necessary to allow the newly planted materials to survive and then allow the remainder of the park to remain natural. The park element could remain that way, or the design features of the selected park design could be implemented later as money to make those improvements becomes available. III — IN CONCLUSION This report concludes the Design Committee's scope of work as outlined in Resolution 2008 -14. As it concludes its work, the Design Committee wishes to state its sincere thanks to the many firms that submitted thorough responses to the RFQ and especially to the five design teams • City Hall and Park Design Competition - Draft Final Report November 12, 2008 Page 8 chosen for the competition. The effort and creativity that went into each of the five Concept Plans from the design teams was impressive. It was clear to the Design Committee that each team took to its task very diligently, getting to know the community, the site, the facility needs, and the project parameters. Each design had elements that were inspired and creative - reflecting the high caliber of the competing firms. At its meeting on November 10, 2008, the Design Committee approved this Report on a unanimous vote. Lastly, the Design Committee would als o City Manager, Dave Kiff for doing an Committee. Much of the RFQ, General Report were authored in whole or in part, and much appreciated. Respectfully submitted: like to thank the City Staff and especially Assistant outstanding job as the staff liaison for the Design Design Parameters, answers to questions and this or edited by Dave. His work was timely, professional Larry Tucker, Design Committee Chairman Exhibits: A - Resolution 2008 -14 B - General Design Parameters, as Amended C - Judging Criteria - RFQ D - Q & A for Phase II - The Five Concept Plans E - Judging Criteria - Concept Plans F - City Staffs Functionality Report G - Responses from public comment cards H - Comments from Committee Members (pending) 0 0 Exhibit A 0 0 RESOLUTION NO. 2008- '' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ESTABLISHING THE CITY HALL DESIGN COMMITTEE WHEREAS, on February 5, 2008, the voters of Newport Beach approved Measure B, which provides that a new city hall shall be located on City owned property north of the Central Library; and WHEREAS, the City Council wishes to follow the will of the voters and develop a new city hall on said property; and WHEREAS, the City Council wishes to have its Ad Hoc Building Committee continue to oversee the overall city hall project; and WHEREAS, the City Council also wishes to have professional advice on issues related to design of the new city hall and a master plan for 19.8 acres owned by the City between Corona del Mar Plaza and the OCTA Transportation Facility; NOW, THEREFORE, BE IT RESOLVED by the City Council as follows: Section 1. The City Council establishes the City Hall Design Committee, which shall be comprised of four (4) licensed architects and one (1) licensed landscape architect. Each member shall be a resident of Newport Beach and shall have at least five (5) years of professional experience, preferably including experience in large scale commercial and /or public facility design. The Committee shall also include a non - voting Chairman, who shall have experience as a meeting facilitator. Prospective members shall be interviewed and recommended by the Ad Hoc Building Committee, and appointed by the City Council. Section 2. All meetings of the Committee shall be noticed and open to the public, and meeting minutes shall be posted on the City's website. Section 3. The primary duty of the Committee shall be to oversee and conduct a design competition for the city hall and master plan project, including the following specific duties: a. Issue a Request for Qualifications (RFQ) to world class architects interested in participating in a design competition for the project. b. In consultation with the Ad Hoc Building Committee, develop recommendations for a detailed set of Design Parameters to be used by the participating architects. c. Review the qualifications of architects who respond to the RFQ. d. Recommend to the City Council three to four architects to participate in the design competition. Ll 0 e. Review design concepts submitted by the selected architects, and hold public meetings to receive public input on the design concepts. f. Recommend an architect and design concept to the City Council. Section 4. The Committee shall sunset on December 31, 2008, unless extended by action of the City Council. This Resolution was adopted at a regular meeting of the City Council of the City of Newport Beach held on February 26, 2008, by the following vote, to wit: AYES, COUNCIL MEMBERS Henn, Rosansky, Daigle, Webb, Curry, Gardner, Mayor Selich NOES, COUNCIL MEMBERS None ABSENT, COUNCIL MEMBERS MA ATTEST: CITY CLERK None 0 STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2008 -14 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 26th day of February 2008, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Daigle, Webb, Curry, Gardner, Mayor Selich Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of February 2008. (Seal) C� 'Y City Clerk Newport Beach, California • • Exhibit B 19 0 0 04 1� City Hall and Park Master Plan Design Competition ` S General Design Parameters (adopted by the City Council on April 22, 2008, posted April 24, 2008 and amended on May 13, 2008) The following General Design Parameters are for the firms /teams selected to participate in the Newport Beach City Hall and Park Master Plan Design Competition. a. Access to Site and Circulation — Vehicular access to the City Hall and Park site shall be off of Avocado Avenue. Farrallon shall not be extended through to MacArthur from its current eastern terminus at Avocado. Farrallon may be considered as an entrance point to the City Hall and Park provided that no direct connection to MacArthur Boulevard exists from Farrallon. There shall be no "right -turn in" vehicular entrance to the City Hall and Park site from MacArthur within the Central Parcel. Exhibit A shows surrounding streets. today's access points to the Library, and identifies the three key parcels (North Parcel, Central Parcel, Library Parcel) subject to the master plan. b. City Hall location on the site — The City Hall and its parking shall generally be located in the Central Parcel south of the projection of Farrallon Drive, as shown on Exhibit B. c. Building Height — The height of the City Hall building (and parking facility) shall be no higher than the height limits imposed by the Newport Village PC Text View Plane limitation as depicted on Exhibit C except that architectural design features, appropriate to the scale of the primary structure, may penetrate the view plane created by the aforementioned height limits. Height limits in the Newport Village PC Text are generally 45 feet above grade OR the View Plane limitation (expressed in feet above mean sea level), whichever is lower. All landscaping and park improvements, at maturity, shall be lower than the View Plane limitation. d. Geotechnical Considerations — Geotechnical considerations will be set forth in a soils investigation performed by Leighton Associates in April 2008 which is to be attached as Exhibit D when completed. The current expected date for the final report is the end of April. Preliminary results show no unique soils or water table issues. e. Library Access and Orientation to City Hall — The Newport Beach Central Library currently faces away from the Central Parcel and the site of City Hall, towards the ocean. The Design should, to the greatest extent practicable, maximize the Library's relationship to the City Hall structure through consideration of a second entry, plaza, shared parking, landscaping or any other appropriate means within the context of the proposed design. f. Natural Park Considerations — The northerly 5 -6 acre portion of the Central Parcel ( "Newport Center Park ") has been proposed as a natural park (i.e. one that is reflective of the region's natural habitats and not overly manicured nor oriented towards turfgrass). Of particular importance is preserving the view from the southernmost meadow area and creating a landscaped border around the natural park area as a transition from the more manicured streetscape to the natural park. g. Other Park Requirements — The southernmost meadow area of the Central Parcel and the 3 -acre North Parcel shall have park amenities such as restrooms, a tot lot, picnic and 0 0 General Design Parameters Posted April 24, 2008 Page 2 of 9 sealing areas (including a softscape ampitheater, if appropriate), drinking fountains, and an ADA- accessible path (the latter being around all or part of the 20 -acre master plan area). Both parcels shall be integrated as portions of the same Newport Center Park. They shall have activity- oriented facilities but not any organized sports fields. h. Lighting - Exterior lighting throughout the Project (City Hall, Parking, and Park) should be designed in such a fashion as to be the minimal intensity necessary to meet safety needs. Landscaping Considerations - The landscaping of the Park and City Hall area shall use water conserving plant material to the greatest extent possible. The intent is to not create a desert or dry landscape palette but a palette that is "California- friendly" and blends into the landscape palette of Newport Center and Newport Beach. Best Management Practices in water conservation, irrigation and drainage shall be employed in the design. j. Parking - 350 spaces shall be provided for City Hall with an additional 100 spaces for the Central Library (the Library has a shortage of spaces currently). Parking for the general public should be convenient to the City Hall and Library buildings. The parking structure should be a separate structure from the City Hall building. The additional 100 library spaces need not be in the City Hall parking structure. k. Space Allocation and Needs Assessment Criteria - The 2002 Needs Assessment prepared by LPA (a link to this document, and any updates to the document, on the City's website is Exhibit F) will be the basis for the primary program requirements for the City Hall Structure with the following adjustments: • The City desires an open Floor plan concept with maximum flexibility for future needs; • The building shall be designed for 270 full time employees at 200 -250 square feet per employee, not including public areas; and • The building's overall size shall be approximately 72- 79,000 total square feet including public areas. Please note that the 2002 Needs Assessment includes these two program requirements, both of which remain desirable: • A "one -stop shop" permit counter (for permits relating to Building, Planning, Public Works, and Fire Prevention along with a cashier); and • A 150 -seat Council Chambers. I. LEED Criteria - The City Hall Structure(s) shall be designed to at least a Leadership in Energy and Environmental Design ("LEED ") standard of silver, with a goal to go higher, if feasible within budgetary limitations. m. Corona del Mar Plaza Considerations - The City will develop a direct entrance to the Central Library's existing parking lot, as shown (generally) in Exhibit E. This entrance may or may not be signalized. No further improvements to CdM Plaza's access are envisioned at this time. n. View Considerations - Views are a sensitive issue in Newport Beach. In addition to the criteria in "c" above, the design should protect the public views westward over the property from MacArthur Boulevard. The design should also be sensitive to the westward views I f, 0 0 General Design Parameters Posted Apnl 24, 2008 Page 3 of 9 from homes east of MacArthur Boulevard over the property. Any penetrations above the view plane as permitted in "c" above should only serve to enhance the architectural appearance of the City Hall structure or frame or enhance the private or public views across the property. Usable landscaped roof treatments or roof terraces are acceptable — these are neither encouraged nor discouraged. Also, the building and parking facility's lighting design shall take into consideration nighttime views from the residences east of MacArthur Boulevard. All landscaping and park improvements, at maturity, shall be within the view plane on Exhibit C. o. Building Design — The city is not setting any design theme for the City Hall building other than seeking a timeless design that will wear well over the years and not be dated in a few years. The design should reflect the character of Newport Beach. It should be harmonious with the adjacent Library and the eclectic architectural styles of Newport Center. The building should be recognized as a significant public building. p. Budgetary Constraints – The budgetary goal of the Project is as follows: • Approximately $400 -450 per square foot for the City Hall structure (not including FF &E); • Approximately $20- 25,000 per space for the parking structure; and • Approximately $15 -20 per square foot for landscaping, irrigation, access, site work (grading and drainage) and site improvements. The above amounts are exclusive of soft costs. The City Hall is not at this time planned to be an "essential services building." The budget parameters expressed here are not absolute amounts but are intended to indicate the price range the City expects the project to cost. Designers should use these numbers as a guide in preparing their submittals. Design economy will be an important consideration. Exhibits Exhibit A – Diagram showing 20 -acre Master Plan area showing North Parcel, Central Parcel, and Library Parcel along with surrounding streets and current site access points to the Library (attached). Exhibit B – Diagram showing the area of the Central Parcel where City Hall and Parking are to be located (attached). Exhibit C – Diagram of the 20 -acre master planning area showing View Plane restrictions over the property (attached). Exhibit D – Soils Report (link attached). Exhibit E – Diagram showing any potential or revised access, parking or circulation considerations for Library area and CdM Plaza (attached). Exhibit F – 2002 LPA Needs Assessment with updates (link attached). Exhibit A The Master Plan Area 0 General Design Parameters Posted April 24. 2008 Page 4 or 9 LLegend: BLUE arrow is the delivery access point to Library. arrrows show the public access point to the Library. 0 0 General Design Parameters Posted April 24, 2008 Page 5 of 9 Exhibit B City Hall and Parking Facility Location within Central Parcel The area southerly of the red line in the direction of arrow is the area where City Hall and Parking are to be located. The City does not anticipate using the entire portion of the parcel southerly of the red line for the City Hall and parking structure - this diagram is provided merely to advise where on the parcel both should go. Exhibit C View Plane Limitations _ e i i+. • • Exhibit D Soils Report Use the following link. http://www city,newpori- beach .ca.us/ CityHallDesignCommittee /2008_Geotechnical_Study.pdf u • General Design Parameters Posted April 24. 2008 Page 8 of 9 Exhibit E Potential locations for increased access to CDM Plaza _ ` cm HALL SS OPPORTUNITIES Ox�ur y • • General Design Parameters Posted April 24. 2008 Page 9 of 9 Exhibit F 2002 LPA Needs Assessment with any updates (a website link) http: / /www.city.newport-beach ca us/ cmo/ CityHall /cityhalidesignparkmasterplan asp • • 0 0 Exhibit C 0 0 Newport Beach City Hall & Park Master Plan Judging Procedure & Criteria P _t 1 Judging Procedure In Part 1 (recommending up to five firms from the RFQ submittals), the Design Committee will consider all submittals except those that have been disqualified for providing less information than is required in Section V of the RFQ or for not meeting the minimum experience qualifications or showing appropriate financial stability in the RFQ. The Committee will rank the submittals according, generally, to a point score based on the following: Experience and References (50 %). Does the quality of the team's expertise and design work as submitted (including "at least three recent large scale projects of similar scope, preferably with a public agency for a public building ") meet the Committee's expectations for functionality, timelessness of design, and overall design vision? (25 %) • Does the proposing team have appropriate expertise and experience working successfully together in architecture, landscape architecture, structural engineering, mechanical engineering, electrical engineering, civil engineering and other related engineering services, project scheduling, cost - benefit analysis, value engineering, LEED and sustainable design, and general administration of all design and construction components of the project? (10 %) • How is the team's track record of completing functional project goals on time and on budget? Are the end users satisfied that the project met all their objectives? (15 %) Project Approach (30 %). Is the team's philosophy and approach to the Project - including program requirements, vision, and expectation of the Project's functionality appropriate? Does the team's Project Approach statement satisfactorily address specific methods or processes they would use to ensure a successful collaboration with all of the Project stakeholders, including City officials, staff, and community members? Design Management Approach (20 %). Is the stated design management approach (including managing the intended scope of work and related professional services to assure the timely and cost effective completion of the Project, working with the City's team, Quality Assurance /Quality Control, and the incorporation of LEED and other sustainable elements) appropriate? Are there unique qualifications of the team in terms of design management? The Committee will recommend teams to the City Council as Part 1 concludes. The City Council will use similar criteria to review, modify, or accept the Committee's recommendations. y� U F 0 Exhibit D 0 0 NEWPORT BEACH CITY HALL AND PARK DESIGN COMPETITION CONCEPT PLAN DEVELOPMENT PHASE QUESTIONS 8 ANS'vVERS August 5, 2008 Will there be any guidelines/limitations/formats for the presentation of competition deliverables and design concepts? Yes. We'd like to see the following from each team as "leave behinds': • Two sets of four 30" by 42' illustrative display boards - the four boards would show Overall Site Plan (Including Parking Structure) Conceptual Landscape Development Plan or Conceptual Park Master Plan. Building Floor Plans (with major spaces identified), and Bustling Elevations. Your display boards should be oriented with Avocado Avenue at the bottom of the boards. Ten (10) bound copies of the PowerPoint or other formatted presentation that you'll be giving on September 27 -', 2008 A flash -drive or DVD of the PowerPoint or other formatted presentation. About a video. We note here that the RFO suggests that the five firms should: Prepare and give to the City a f0 -15 minute "highlight' DVD for aging on the City s government programming channels) that profiles and presents the team's design concept (Note. if requested. the City's team of production assistants can help those firms/teams that do not have this expertise on statf) We have re- thought this request. Firms do not have to direct and produce a highlight DVD or video of their presentation Indeed, we don't expect that - we will. however, using our own camera crews, be videoing your presentation (thus, a PowerPoint may be your more likely method to deliver your message) to the Design Committee. We will edit and produce a video that is a compilation of the presentations - our video will air on our Community Programming Channel and be on our website for webstreaming. In addition to the above items, any and all other types of exhibits, models. and graphic information are welcome as part of your presentation, and will be considered in the judging. However, we are requesting the specific items above as "leave behind" materials so that they can be exhibited in a public location for the citizens of Newport Beach who are unable to attend the presentations to review, compare arid. at the appropriate forum, provide comments. 2. Will any exceptions to the height limits imposed on this site in general be allowed for trees or other landscape features or amenities? No. Only architectural design features for the building can exceed the height limit. We will reiterate the General Design Parameter reflecting this here' Building Height - The height of the City Hall building (and parking facility) shall be no higher than the height limits imposed by the Newport Village PC Text View Plane limitation as depicted on Exhibit C except that architectural design features, 0 0 Concept P!an Phase 08A August 5 2008 Page 2 of 4 appropriate to the scale of the primary structure, may penetrate the view plane created by the aforementioned height limits. Height limits in the Newport Village PC Text are generally 45 feet above grade OR the View Plane Imitation (expressed in feet above mean sea level). whichever is lower. All landscaping and park improvements, at maturity, shall be lower than the View Plane limitation (our emphasis added here). 3. We would like staff to clarify building height restrictions for the proposed City Hall and Park Master Plan. The general design parameters for the City Hall and Park Master Plan Design Competition states "Height limits in the Newport Village PC text are generally 45 feet above grade OR the View Plane limitation (expressed in feet above mean sea level), whichever is lower." Looking at Exhibit C (see attached), the view plane diagram; a majority of the topography of the site is within 5 to 10 feet of the view plane and in some areas the site is already above the view plane. According to the design parameters, the building height will be limited by the view plane height, as it is the more restrictive of the two height options. Please confirm that these are the parameters that we are to be working with knowing that the existing site topography is encroaching within the view corridor? If not please clarify. Yes. generally the View Plane limitation is the driving limitation - designers may assume that the City assumes that significant excavation will be necessary for the budding and parking facility. 4. Please clarify where the "southernmost meadow" area is located. Please see the diagram entitled "Southernmost Meadow" on the website 5. Please clarify the intent of the video. How will it factor into the evaluation of the competition submittals? See Question #1. Scoring and evaluation will be done in accordance with the Judging Procedure and Criteria (we're in Part 2 now) as posted on the website: hua a atv newwrl beach ca uVC,NHeoDes,anCommReerQd Q5 21.1udainu�,:11Cnteria od! 6. May we get the topographic map for the north parcel from the City? Yes. see website Please clarify the competition submittal exhibits requirements. See answer to Question #1. 8. Please Clarify format required for submission at competition deadline. Is submission limited to a "10 -15 minute highlight video" and "45 minute presentation "? Are hard copies of presentation required? See in part the answer to Question #1. The video will be done by the City's programming crew. and will come from your presentation to the Committee on September 27, 2008 In other words. your firm does not need to prepare and present a video unless you chose to do it - we'll film your presentation, and make a highlight video from that that the Newport Beach community can watch on community television and on the city's website. 9. Is a cost estimate required? A cost estimate would be helpful, but is not required. The Judging Criteria speaks to: 4 0 0 Concept Plan Phase Q&A August 5 2008 Page 3 of 4 .. a resource expenditure by the City that is appropriate for a large municipal facility in this community." And asks "Is the design responsive to budget constraints?' You will want to appropriately demonstrate how your concept plan reflects this. Without such a demonstration, your Plan may not gel all the points it could in this section of the Criteria. 10. Please clarify "activity- oriented amenities" in the park, stated in the Design Parameters. As you know. Design Parameter G states. G. The southernmost meadow area of the Central Parcel and the 3 -acre North Parcel shall have park amenities such as restrooms. a tot lot, picnic and seating areas (including a softscapo amphitheater. if appropriate), drinking fountains. and an ADA- accessible path (the latter being around all or part of the 20 -acre master plan area). Both parcels shall be integrated as portions of the .same Newport Center Park They shalt have activity- onented facilities but not any organized sports fields The Building Committee notes the phrase "such as" and encourages designers to think along the lines of the Parameter, but to propose, if appropriate, concepts and amenities we may not have considered. Note that we did not suggest active ballfields -- that amenity is not under consideration. 11. Has the individual presentation dates to the Design Committee /City Council been determined? Yes More details to follow on your exact presentation time, but please hold the following on your calendar. Saturday, September 27, 2006 8:00 a.m. to 6:00 p.m. City Council Chambers 3300 Newport Boulevard Newport Beach, California City staff will inform you as to the specific time your firm will make its presentation. Each firm will have about 90 minutes before the Committee, which includes an up to 45- minute presentation and 45 minutes for Q &A. We will insist that members of the competing firms only attend their own presentation period - listening in and checking out the competition before your own presentation is not allowed. 12. Please clarify a discrepancy in program square footage of council chambers: 5,575 SF vs. 6,663 SF. The proper number is 5.575 square feet. inclusive of a 150 -seat aud;ence area 13. Please clarify future expansion requirements for the City Hall building and for the existing Library building. There are no specific expansion requirements at this time for either facility. If we led you to believe otherwise, please disregard that The program requirements for the City Hall and Parking Facility are as stated in the General Design Parameters: 350 parking spaces for City Hall: 100 additional parking spaces for the Library, and A 72.000 to 79,000 square foot City Hall building. Concept Plan Phase OBA August 5. 2008 Page 4 of 4 The Building Committee notes that expandability of the City Hall building is not a judging criterion that will be specifically scored. However if a design team wants to highlight an aspect of its design that accommodates expansion, there is no prohibition to doing so. That feature of the design may be considered along with the many other features of each design that aren't specifically scored 14. Please provide a name and contact information for the Library project representative. Please direct all of your inquiries to Dave Kiff Assistant City Manager, at 949- 644 -3002 or dkifi city. newport- beach ca.us. 15. Please clarify process and dates for attending relevant Design Committee meetings to achieve the open public process envisioned in the RFQ. At this time. we envision your attendance at the Design Committee meeting of September 27. 2008, and suspect that attendance at other Committee meetings will be unnecessary. This guidance does not apply to the City Council meetings. which will be later in November - December 2008. 16. Is there additional information / environmental study on the stream / swale in the Central Parcel? Clarify current activity of the stream /swale? Yes, please see the website. 17. Our civil engineer is requesting a CADD file of the Hall and Forman topo. Can this be provided? Yes, please see the website 18. Will there be plan information provided for both the Library and Corona Del Mar Plaza? Please see the website for Plan Information for the Library. The CDM Plaza information affects private property. and is attainable at the Building Department's counter - respectfully, this information should not be necessary to your work in the Concept Plan phase. 19. Will there be topological and view corridor information provided for the entire site? Yes as the question applies to lopograpny - please see webs to There is no view plane limitation on the upper 3 -acre park site 20. What is the status of the Avocado extension? Yet to be determined. 21. How much room for interpretation on the site plan lay out will be allowed? This is a challenging question to answer, and we're not sure how to answer it, so we won't ,', (n Exhibit E 3� 0 r Newport Beach City Hall & Park Master Plan Judging Procedure & Criteria Part 2 In Part 2 (ranking criteria for the up to five firms /teams' concept plans), the Committee and the City Council will review and rank the up to five (5) teams' submittals generally as follows: 1. Functionality of Design (30 %). Does the Concept Plan show an entire Project (City Hall, park, and parking structure) that meets or exceeds all program parameters, that will be functional for the community and that will promote an effective municipal organization? • Integration. Does the Concept Plan successfully integrate the park, City Hall and the existing library? • Building. Does the Concept Plan show an efficient use of the building that limits square footage and maintenance costs but that still maintains an open, airy, and expansive feel? Will the public feel welcome without compromising the any of the building's intended efficiency, security, or staff amenities? • Park. Does the park design meet the desires of the community for a natural park with appropriate recreational amenities? • Space. Is the amount of space taken up by each element appropriate, balancing building and parking needs with natural park space? 2. Creativity and Timelessness of Design (25 %). Does the Concept Plan show a unique, exciting design that will remain appropriate, interesting, original and substantial into the long -term future? As a public space, will the design solution make a valuable and lasting contribution to both the social and physical environment of the City? 3. Practicality, Efficiency and Constructability (25 %). Does the Concept Plan reflect a resource expenditure by the City that is appropriate for a large municipal facility in this community? Is the design responsive to budget constraints? Does the Concept Plan and its supportive documentation fully reflect the requests of the Committee and the Council made to the design team? 4. Sustainability (20 %). Does the Concept Plan show sufficient elements of sustainability, including at least the minimum appropriate level of LEED certification (silver), energy efficiency, water quality protection, water conservation, and more? 7 I Exhibit F 0 0 CITY OF NEWPORT BEACH CITY HALL DESIGN COMMITTEE STAFF REPORT October 13, 2008 TO: CHAIRMAN AND MEMBERS OF THE COMMITTEE FROM: Public Works Department Stephen G. Badum, Public Works Director 949 -644 -3311 or sbadum @city.newport- beach.ca.us SUBJECT: Staff Review for Functionality and Operational Needs — City Hall At the September 29, 2008 meeting, the Committee requested that City staff review the five designs for functionality and operational needs. On October 7, 2008, City Department Heads met to review the five proposed designs for the City Hall and park. And discuss each design's attributes with respect to efficient work flow and our ability to provide an excellent customer service experience. We also held two general employee informational meetings on October 9 and 13 in which employees were encouraged to comment on the designs with respect to workflow environment and their ability to provide service. The following key areas were discussed: Entry /Exit The entry is the first impression for customers. Staff reviewed the designs' entry and exit for compliance with good traffic engineering practices as well as pedestrian access from the street. Parking Staff examined internal circulation within the parking areas, proximity to services, and accessibility to the library and City Hall workspaces. The ability to service "off hour" events such as Council meetings, community meetings, and special events was also reviewed. Internal Circulation Internal circulation within the building was examined for employees and customers with respect to appropriate adjacencies. However, in most cases, staff understands that the internal adjacency needs could be addressed through minor re- design. Connectivity to the library was also reviewed. J 0 0 Staff Functanalfty and Operation Rem" October 13, 2008 Pare 2 One Stop Shop Permitting Staff reviewed the general size in order to accommodate good work flow and customer service at the one -stop permit shop. Expandability was also considered. • Council Chambers Staff reviewed each design's City Council /Community /Multi -use areas as to how the area would function during work and after work hours as well as the ability to function independently from the rest of City Hall. Convenient connectivity to parking and security was also discussed. Natural Lighting (Directlindirect) Staff reviewed each design as to the proposed lighting and its affect on the employee working environment and customers. Lighting in parking structures was also discussed as to customer experience and security. Ventilation (Passive /Mechanical) Ventilation of work spaces and the parking structures was reviewed. Expandability While it has been acknowledged that our City is close to 'build out', new issues and regulation may cause the need for staff to expand in some areas, and decrease in others. Recent examples include water quality and new CEQA greenhouse gas issues. Staff looked at each design with respect to its ability to add or expand structures. Construction / Maintenance Expense Staff qualitatively reviewed costs based upon construction types and typical building code issues. • Security Security for customer and employees was also considered. Amenities for Employee Retention /Recruitment Staff reviewed each design for elements that would attract or retain employment. The attached staff comment summaries are provided for each design. It is not the intent of staff to endorse any particular design, but highlight what staff feels are desirable and less desirable design features. Submitted by: Dav Ciff Assis ant City Manager 0 0 Staff FuncGonalily and Opeabonal Reoe October 13. 2008 Page 3 Johnson Fain Entry /Exit • The 90 degree turn in the entry driveway will be problematic to traffic flow through the intersection. • With the building depressed into the terrain, retaining walls, entry ramp, and the garage are your first impression of City Hall. It appears that the building can't be seen from Avocado. • There is no visual indication that parking also serves the library. There is no vehicle connection to the library as well. • It appears that the loading dock is proposed along the exit ramp and is visible from the entry ramp. Parking • Parking at the entry level requires customers to use stairs /elevator to get to the One Stop Permit shop and Council Chambers /Community room. • All parking underground. No surface parking. This could have a "Triangle Square" effect, where patrons are less likely to feel comfortable in or to use a facility without easy surface parking Internal circulation • The rectangular two story layout lends itself to multiple configurations with good functionality. One Stop Shop Permitting • Location at the end of the building may impede future expansion. • Separated from parking by stair /elevator Council Chambers /Community Space • Separated from main building and will be able to function as a separate facility after hours. • Since it is located over entry ramp, there was a concern about noise and vibration. • Excellent plaza space for events and general customer/ employee space. Natural lighting • Lighting is predominately indirect. No natural views from employee spaces. Light wells could be improved if portions of the MacArthur berm are eliminated or reduced. • Interior garden spaces bring indirect natural lighting to interior spaces. Ventilation • Below grade design will require extensive mechanical ventilation which will raise operation and maintenance costs over options that allow for open doors and open windows. r_ • • Staff Funceonaidy and Operational Review October 13. 2008 Page 4 • Below grade parking structure could have humidity and odor issues. Expandability • The building could be expanded along the northerly wall in the future. Construction and Maintenance Costs • Below grade design adds the cost of retaining walls and subdrains into building system, however, may be offset by some grading savings. • Parking structure under occupied buildings increases costs. • Green roof will require additional maintenance considerations. Secu ri • Council Chambers over the entry ramp could be a security threat. • The 'Arrival Plaza' will be difficult for Police to patrol. • Underground parking can be problematic for employee security. • Access control to green roof could be problematic. Gonzalez Goodale Entry /Exit • The 90 degree turn in the entry driveway will be problematic to traffic flow through the intersection. • Drop off at the 'Arrival Court' is problematic for traffic flow because it is too close to the intersection. • Additional entry/exit from library parcel provides a clear connection for overflow library parking. • No loading dock area identified. Parking • Parking at the entry level requires customers to use stairs /elevator to get to the One Stop Permit shop and Council Chambers /Community room. • All parking underground. No surface parking. See "Triangle Square' effect (in Johnson -Fain comments) Internal circulation • The rectangular two story layout lends itself to multiple configurations with good functionality • Recreation should be on first floor for improved customer access. • Good connectivity with Library. • Civic Mound provides good useable outdoor space. One Stop Shop Permitting • Centralized location at main entrance with spacious lobby. Easily expandable. Separated from parking by stair /elevator. 0 Council Chambers /Community Space • Separated from main building and will after hours. 0 Staff Functionaldy and Operebonal Review October 13, 2000 Page 5 be able to function as a separate facility • Excellent plaza space for events and general customer/ employee space. • The enclosed connection to City Manager, City Attorney, and Council offices is a good feature. Natural lighting • Lighting is predominately direct. Natural views from employee spaces. • Green roof with skylights is effective for interior spaces. Ventilation • Above grade design provides ample passive ventilation opportunities. • Below grade parking structure could have humidity and odor issues. Expandability • The building could be expanded along the northerly wall (into the 'Mound') in the future. Construction and Maintenance Costs • Parking structure under occupied buildings increases costs. • Green roof will require additional maintenance considerations. Security • Public plaza viewable from Avocado. Underground parking can be problematic for employee security. Access control to green roof could be problematic. Rosetti Entry/Exit • Good entry road to surface and structure parking. • Additional entry/exit from library parcel provides a clear connection for overflow library parking. Loading dock shares access with library, good use. Parking • Sufficient surface parking for customers and park users. There maybe an opportunity to reduce the number needed to preserve park space. • Parking within the structure requires customers to use stairs /elevator to get to the One Stop Permit shop and Council Chambers /Community room. • Underground structure needs to be reconfigured. Dead end aisles are undesirable. The angled layout may prove confusing to customers. Staff Functionality and Operational Rewew October 13, 2006 Page 6 Internal circulation • The three building layout limits internal circulation. Connectivity is through public areas. • Connectivity with the Library is difficult. Parking structure serves as a barrier. One Stop Shop Permitting • One stop counter and associated space appears to be too small. Submittal package seems to indicate that some permitting is on a different level? • Centralized location at main entrance off pavilion lobby. • Separated from parking by stair /elevator Council Chambers /Community Space • Located at back of facility. • Not separated from main building and may have difficulties functioning as a separate facility after hours. • Good plaza spaces for events and general customer/ employee space. • The enclosed connection to City Manager, City Attorney, and Council offices is a good feature. Natural lighting • Lighting is predominately direct. Natural views from employee spaces. Ventilation • Above grade design provides ample passive ventilation opportunities. • Below grade parking structure could have humidity and odor issues. Fxpandabilitv • The three building layout over parking structures with complex roof limits expansion. Construction and Maintenance Costs • Parking structure under occupied buildings increases costs. • Complex roof and articulated design will add cost. • Green roof will require additional maintenance considerations. Security • Public plazas not viewable from Avocado. • Underground parking can be problematic for employee security. • Loading dock visible from Avocado. Bohlin Cvwinski Jackson Entry /Exit • Excellent entry road with functional drop off area. C i Staff Functionality and Operational Review October 13, 2008 Page 7 • Additional entry/exit from library parcel provides a clear connection for overflow library parking. • Loading dock shares access with library, good use. Parking • Separate three level parking structure with entry into the second level at grade. • As currently designed, pathway to the Council chambers and public concourse is a long route. The public concourse could be relocated to the opposite side of the building to improve connectivity. Internal circulation • The 'Pod' design limits internal circulation. Too many separate areas. • Multiple public access points could require more reception personnel. • Connectivity is through public areas by the exterior public concourse. One Stop Shop Permitting • One Stop counter and associated space appears to be too small. • Not a centralized location (third 'pod' on public concourse). Council Chambers /Community Space • Very visible from Avocado. • Not central to parking which is located at back of City Hall. • Separated from main building and will function as a separate facility after hours. • Good plaza spaces for events and general customer/ employee space. Natural lighting • Roof design provides excellent interior lighting. • Above ground design provides natural views. Ventilation • Roof and above grade design provides ample passive ventilation opportunities. • Parking structure portions below grade could have humidity and odor issues. Expandability • The Pod design with its oversize roof is very expandable. Construction and Maintenance Costs • Complex roof and will add cost. • Separate parking structure and building saves cost. Securi • Location of Council Chambers near entry road provides excellent security. • Underground parking can be problematic for employee security. • Loading dock visible from Avocado. II I 0 0 Staff Functionality and Operational Review October 13, 21x18 Page 8 LPA Entry /Exit • Excellent entry road. • Additional entry/exit from library loading dock access does not provide a clear connection for overflow library parking. However, the design may be modified to meet that purpose. Parking • Separate three level parking structure with entry into the second level at grade. • At grade level has good connectivity with public service areas. Internal circulation • The two story layout lends itself to multiple configurations with good functionality. • Good connectivity with Library. Eliminates need for additional checkout and 'backdoor' entrance. One Stop Shoo Permitting • Centralized location at main entrance with spacious lobby. • Easily expandable. Council Chambers /Community Space • Very visible from Avocado. • Separated from main building and will function as a separate facility after hours. • Good plaza spaces for events and general customer/ employee space. • The enclosed connection to City Manager, City Attorney, and Council offices is a good feature. Natural lighting • Hallways on exterior walls with office space at the core provides good interior lighting • Above ground design provides natural views and lighting. • Indirect lighting from skylights enhances interior space. • Location closer to Avocado improves views from office spaces. Ventilation • Roof and above grade design provides ample passive ventilation opportunities. • Parking structure portions below grade could have humidity and odor issues. Expandability • Expandable, if willing to sacrifice plaza space. Construction and Maintenance Costs • Economical design • Separate parking structure and building saves cost. l Staff Functionality and Operatmal Review October 13, 2018 Page 9 Security • Location of Council chambers near entry road provides excellent security. • Underground parking can be problematic for employee security. • Loading dock visible from Avocado. General comments applying to all designs • Staff preferred designs that had building closer to Avocado to provide a strong street presence. • A vehicle connection to City Hall parking from the existing library parking is preferred. • Proximity of OCTA transit station may increase transients in the adjacent park which may require more security. • Staff members preferred a more useable park with potential for passive and some low impact active use such as jogging trails, fitness circuit, or a volleyball cou rt. • The City currently uses microwave and radio antennas for communications and connectivity to other City facilities. This should be factored into any design. • Parking structures should provide clearance for larger City vehicles and service vehicles. • Alternative fuel City vehicles should be provided for (CNG, plug in hybrid, or electric). Employee Retention and Recruitment Issues • Proximity of OCTA transit station and accessible walkways provide alternative transportation opportunities for employees. • Lack of affordable restaurants in the immediate area will cause more off site trips at lunch and break times. We might consider a light cafeteria and /or coffee concession. • No employee wellness options have been included in any of the designs. A small fitness center /exercise room, half court basketball, volleyball court, circuit training, or similar facility could be considered. • Effective bicycle storage areas and shower /locker area will increase the number of employees who ride to work or who take advantage of wellness opportunities. 1] Exhibit G 0 0 Bohlin Gywinski Jackson Please check one Newport Beach Resident Other Newport Beach Business = City Hall Employee Bohlin Cywinski Jackson Please check one may` I Newport Beach Resident Newport Beach Business City Hall Employee U Other J-� 0 0 Bohlin Cywinski Jackson TO-INN MOUSE - ail 111 r�� i S� M, - 011�mm 1 Please check one Newport Beach Resident l. Newport Beach Business City Hall Employee Other O �KJ I Z it A ) �.r't � /4 gko-\-�- w Bohlin Cywinski Jackson rae 1 w k � In G6Pfiv a-tS T14e, lJJ 4- C,o M" M -rtl I I'-S WA-;� P — _fie -6 -t f1t- O.NU ►tio Nn-- �.1 -�-. ! �' lwt t, c► V l C ' I • i LI Please check one O �t J S k Newport Beach Resident = Newport Beach Business 5 City Hall Employee 0 -' Bohlin Gywioski Jackson Please check one Newport Beach Resident Newport Beach Business Other Please check one Newport Beach Resident City Hall Employee = Bohlin Cywinski Jackson Newport Beach Business City Hall Employee 0 I .%I Ahlin Cywinski JackscO v " )ck, Please check one Newport Beach Resident Newport Beach Business 0 Other a City Hall Employee Bohlin Cywinski Jackson ::�;r SIG, ,i 4-,Z-v A h 1 Please check one Newport Beach Resident Other O 7 �. Newport Beach Business 0 City Hall Employee = J / W)hlin Cywinski .lacks* f i Please check one Newport Beach Resident Other n Newport Beach Business City Hall Employee Bohlin Cywinski Jackson Please check one Newport Beach Resident Newport Beach Business 0 City Hall Employee 0 Other Fx_j ; GL<,2�< Cc7' Mtg(4 - -- sI Whlin Cywinski Jacks(* Please check one �—�� Newport Beach Resident (J Newport Beach Business City Hall Employee Other Bohlin Cywinski Jackson Please check one Newport Beach Resident Newport Beach Business City Hall Employee 0 Other O /� n _ i•nn �i n Please check one Newport Beach Resident Newport Beach Business City Hall Employee 0 Other .ahlin Cywinski Jacksce %mooaF zlV,6. Please check one Newport Beach Resident 1W Other Newport Beach Business a City Hall Employee C Bohlin Cywinski Jackson r Please check one Newport Beach Resident Other Newport Beach Business = City Hal] Employee = e: j r Obhlin Cywinski Jackso* Please check one Newport Beach Reside t� Other O .4 rt Beach Business City Hall Employee Y r 0 0 Bohlin Cywinski Jackson 1 LSD 6//1,t � b> S (r C5 -& x67P YOSIC Please check one Newport Beach Resident Other a /T9 Newport Beach Business 0 City Hall Employee A42F- s/1au�D i/, d, 4hlin Cywinski Jacksco r. A l _ _ t Please check one Newport Beach Resident �_ ( Newport Beach Business F—I City Hall Employee Other Bohlin Cywinski Jackson )3 f 11,u IK tCv i)-�x e>4 6or Please check one Newport Beach Resident Other *2(7 W U «, j(0y) avchc *OC ,41 Newport Beach Business City Hall Employee 0 Bohlin Cywinski Jackson 13l ( t1kY OsTol Jac 1 �vs - WOYSr 4 ):,- T yocip, Please check one Newport Beach Resident u Other = Newport Beach Business = City Hall Employee 0 Bohlin Cywinski Jackson c, C-tod D c,u CIS ,) 4 w (- o1 A- Please check one Newport Beach Resident Newport Beach Business City Hall Employee � �6 Please check one Newport Beach Resident Other *"in Cywinski JacksGe Newport Beach Business = City Hall Employee 0 Bohlin Cywinski Jackson "''^/ ', S S K ri Please check one Newport Beach Resident Other O Newport Beach Business � City Hall Employee 0 Abhlin Cywinski Jacksce Please check one Newport Beach Resident IZI Newport Beach Business City Hall Employee 0 Other /BohlinCywinski Jackson r Please check one Newport Beach Resident 0 Other Newport Beach Business = City Hall Employee = cj Shlin Cywinski Jackst* WCw r woo It O;Ao/ -r7 4t.9, Ct e61 C7/So Please check one Newport Beach Resident Other IC h IL c.rIgS ) — uohee¢ dd y" pr.,k +i Newport Beach Business = City Hall Employee 0 Bohlin Cywinski Jackson Please check one Newport Beach Resident Newport Beach Business 0 City Hall Employee = y1 a p it t -05 Please check one Newport Beach Resident Other IC h IL c.rIgS ) — uohee¢ dd y" pr.,k +i Newport Beach Business = City Hall Employee 0 Bohlin Cywinski Jackson Please check one Newport Beach Resident Newport Beach Business 0 City Hall Employee = 0 BOHLIN CYWINSKI JACKSON 0 AFTER FIFTY -TWO YEARS OF MARRIAGE TO NEWPORT BEACH ARCHITECT HERBERT E. RILEY AND A RESULTANT ARCHITECTURAL INDOCTRINATION, I CONSIDER MY VOTE ON THE MODELS AND SCHEMATICS DISPLAYED FOR OUR NEW CITY HALL TO BE A VALID ONE. MY OWN BACKGROUND IS FINE ART. THE OFFICE OF BOHLIN CYWINSKI JACKSON BY FAR EXCEEDS THE OTHER PRESENTATIONS IN CREATING A "NEW FACE" FOR THE COMMUNITY , EQUAL TO THE NEW MILLINIUM. THEIR REPORT IS MOST THOROUGH. WITH THE DEVELOPMENT OF THE PARK IN CONJUNCTION WITH THE BUILDING, NEWPORT BEACH WILL HAVE CREATED A "JEWEL" IN THE CENTER OF OUR CITY. THE WONDERFUL DESIGN SUGGESTS THE SURF, IT IS EXCITINGLY SIMPLE AND MY UNDERSTANDING IS THE LAMINATED BEAMS ARE BOTH BEAUTIFUL AND EASILY CONSTRUCTED. TO ARRIVE AT THIS ENTRANCE WOULD BE A PLEASURABLE AND IMPRESSIVE EXPERIENCE. BERNICE C. RILEY 211 VIA LIDO NORD r NEWPORT BEACH, CA 92663 �S O Qi G fi- r r C s r° lV 0 0 a&L cc ,mac= G 4 xED G lG✓6 z;_ --fL ('0nze'le S ' ! Cr��a�e P��os�.I of ��74IJ� -• ICJ, USQ.5 WILL r'"!''"l rA Al.� �AIQ�C'.pjcnS� �mnil.(o^ 0 A I A _ I _ Please check one Newport Beach Resident Other = Newport Beach Business City Hall Employee = % r- � aanojdwg �leH ,t»� 0 ssauisn8 yoeag uodMaN iwpisa-d yoeag uodmaN auo payo aseaid °'a�ybd •%/ 4 'i `r"w 'r 'rj 1,yj�, 04f ��.,/ v r� { ✓.y� "q Wlw ��„'w :.w� SN / . '7'iCR?f s � n YM �v .i .HJJ.%r 9Yy >�OJ, /ra•y i1 a,15 r�• � `V7t 7'�'v vi Ji ^ ?v, '1N7 •.�.) ,-sr� Y.7' 4VJ'/ /7. -•1 fSa✓/�1'f tea^ yf S ✓./ 1�',�'/:g..7 7d �,. ;t'J fr-7y� C,' '1fYl .. •�+. 'tj r.:1, J I �•t �: t; �/ y4viv /Y''+itif�r i*y ?a�+!1 ie -7:J; spy I� /tnL rl'i �, H7. 'IIlf ,• N Stl f S I J /i` .1 , a/epooE)- sa/ezuoE) 11410 aaaXoIdw3 I1eH .�17: a ssauisng yoeag uodmaN ivapisa-d yoeag uodmaN auo xoayo asea�d - ,i it ;, ; -• t � r�:r-` -- alepoo!9- salezu0c) r, of a aaAoldwg 11eH AID E-1 ssawsng yaeag uodmaN ® luap!sa�j yoeag uodmiN auo VaV aseald a1epooE)- sa1ezu00 O13LP0 OaaXoldwg 11eH KID I_ J "'u''�41 peag uudt%aN luap!sag yaeag uod -AaN auo paya aseald �.�Y I 3 0 i V ; ; J alepoo,c)- salezuoE) 0 0 zio � .40 017/ %'°�/' off✓ a1epooE)- sa1ezu00 O13LP0 OaaXoldwg 11eH KID I_ J "'u''�41 peag uudt%aN luap!sag yaeag uod -AaN auo paya aseald �.�Y I 3 0 i V ; ; J alepoo,c)- salezuoE) 0 0 • 0 Gonzales - Goodale .S i `GY-. F�ud, &ckone Please ch Newport Beach Residen� Newport Beach Business City Hall Employee Other = Please check one Newport Beach Resident 7-7 — 5 Sew -Add Gonzales- Goodale S14 L 2a "{ ,.t,m Y O -- Newport Beach Business = City Hall Employee = 0 0 Gonzales-Goodale 90DzS _ r9y _ 1 70) re f�,vs� ✓� Please check one Newport Beach Resident Newport Beach Business Other = Gonzales- Goodale City Hall Employee = 0 - - - - -- - - - - - -- - - -- Newport Beach Resident Newport Beach Business = City Hall Employee 0 T9 0 Gonzales- Goodale 0 L— oa „n D1 ✓ r_ _ rAl e Please check one Newport Beach Resident ® Newport Beach Business 0 City Hall Other t C 0 Gonzales - Goodale o 'J.4 V15ue- /,Zy,t /t^ Please check one Newport Beach Resident Other C C nd Newport Beach Business 0 Gonzales- Goodale Please check one Newport Beach Resident L�'�. Newport Beach Business Other z City Hall Employee 0 WA City Hall Employee 0 qJ • Gonzales- Goodale 0 Please check one Newport Beach Resident 0 Other Newport Beach Business = Gonzales- Goodale City Hall Employee = 7 :3.e4 CK VA- ����u a6 w1� I e tntce — Please check one Newport Beach Resident Other IN Newport Beach Business City Hall Employee Gonzales - Goodale l s � - 7 a, L' ,, ",,r , C, /l Lf��c ewe c1, .l% oT/ /:+� ✓ �.s se� G Please check one Newport Beach Resident Newport Beach Business � City Hall Employee Other = Gonzales - Goodale Please check one Za eonzales- Goo dale 1�J�1,r.�Gl Y-�) loG2i� 0 i Please check one Newport Beach Resident Other Newport Beach Business 0 Gonzales- Goodale City Hall Employee = l.J -- Pleaay.4mt&-one Newport Beach Resident Other O Newport Beach Business 0 City Hall Employee = - -- c3 0 Johnson -Fain E Newport Beach Resident = Newport Beach Business = City Hall Employee I XI Other = __>1 c� Please check one Newport Beach Resident [� J Other = Please check one Kid Newport Beach Resident Other* 10 Johnson -Fain 0 Newport Beach Business = City Hall Employee 0 Johnson -Fain Newport Beach Business = City Hall Employee != o Johnson -Fain • Please check one Newport Beach Resident Newport Beach Business 0 City Hall Employee Other Johnson -Fain Please check one Newport Beach" Resident FK Other = Newport Beach Business =— City Hall Employee = J Please check one Newport Beach Resident Other 0 L�1 • Johnson-Fain • Newport Beach Business C' Johnson -Fain !AL' CI AAA City Hall Employee = Please check one Newport Beach Resident Other = Newport Beach Business = City Hall Employee = �1 0 Johnson -Fain 0 'ze.� . �_ __�- Newport Beach Resident I�T Newport Beach Business 0 City Hall Employee Other Johnson -Fain t7 w l.�C -l��t) ► Please check one Newport Beach Resident Newport Beach Business 0 City Hall Employee 0 Other = /" I Please check one Newport Beach Resident Other __J / 1 Johnson -Fain 0 ac ZA N Newport Beach Business O Johnson -Fain City Hall Employee = Please Newport Beach Resident Newpor: Beach Business City Hall Employee 0 Other 0 Johnson-Fain 0 MIA • Please check one Newport Beach Resident 0 Other a - .4 ,�+.. Newport Beach'Business City Hall Employee a,- Johnson -Fain LU A ii�p L� �, 2.0 ( T�,S l il) F_ F_ LI�" 1 Please check one Newport Beach Resident Newport Beach Business City fjall Employe Other a 11It/�C�� V ` V►/ '"1 J 7 e -v" ;7-, 7 rJ C )1 _ 1 1 • Johnson -Fain • Please check one Newport Beach Residrnt� Other a Newport Beach Business = City Hall Employee = %Jl�o�efl �i¢ a�esgn �e best Q h10/19 �l16,Ot See/! plia 6 {(e� to /�OQP ul��`(f1J 9� L Z If Johnson-Fain - -�0 u5� - boi- 0-C l.(nv, Ka� Please check one Newport Beach Resident Newport Beach Business a City Hall Employee a Other Johnson -Fain cow Please check one Newport Beach Resident E_'�r Newport Beach Business City Hall Employee • • Johnson -Fain lJ- 0 1,4L - A- /,; - /,).. j I Please check one Newport Beach Resident Newport Beach Business E:] City Hall Fmployee 0 Other a Johnson -Fain mow,, )/ o n/:1i D /.lam Q 9'{ &C i /t_ - d et c%t* V i si 14ve a Con 74�1t Please check one Newport Beach Resident Newport Beach Business 0 City Hall Employee 0 _{ C 4P Johnson -Fain e I/i fev 9A PS TO -���► t"� tiro lie v n — (6000 CQCewo/v 7�2 MiN euPL1C r/ � o /g, (<ej; rdU Please check one Newport Beach Resident M Other a Newport Beach Business V Johnson -Fain City E{all Employee 0 /77 01 y Please check one Newport Beach Resident Newport Beach Business Other City Hall Employee = 7.1 c- 1` r r' c xe 0* /k2rl�, %w \f6HA�wv rPlPJ 66AjC6?01- r5 F n 7:L' f 71 7� lr is f f AtiUNl� �,'► � D� ONE � - !s IAIT&nI97 5 °f A W �� 0-/Y, Y 100 i` T� 0 LPA 0 Please check one Newport Beach Resident Other Newport Beach Business = LPA City Hall Employee = Please check one %4 Newport Beach Resident Other / Newport Beach Business City Hall Employee LPA Please check one Newport Beach Resident Other O Newport Beach Business I ✓ I LPA City Hall Employee 0 Please check one Newport Beach Resident fd' Newport Beach Business 0 City Hall Employee Other a P • LPA • Please check one Newport Beach Resident Newport Beach Business L J City Hall Employee 0 Other = LPA I k, W I n�e� l Please check one Newport Beach Resident Ev Newport Beach Business City Hall Employee 0 Other l 7t! -iNl� M 5 0 1 LPA 0 M T $yi 4�0� IrVA, VAS rTOly I�.I fa alb r� �?" ✓ PU ✓ /�,NG7 /PLUS I Ato 77 Mq!!f-tjdT vu� fgot ce,04 09w- Please check one: Newport Beach Resident Newport Beach Business City Hall Employee Other O I'll i r vr' L.s o c r rl r A7 s r- Clue Cr om/t � ON, `fie V�4 C-2; 6Avu �, wrvn r c 1)QAl cl z 4� ILP,A RP� �- �1&�^. �A�JCY� tom!' l l/1,2 J Please check one Newport Beach Resident Newport Beach Business City Hall Employee F7 Other O 41Z l� trN� P 1- an D¢� N4! -r 0 0 �)pn0'7- A)CLt A--c.4, LPA 'Sa Wl*R )S (it— Tr9hc.3) t/r Please check one Newport Beach Resident I—_ Newport Beach Business Other City Hall Employee 0 I I '� LPA Please check one Newport Beach Resident Other = Please check one Newport Beach Resident,I Other a Newport Beach Business LJ City Hall Employee L___1 LPA Newport Beach Business = City Hall Employee = LPA • rA f 6n l he4 1, C) VA IC- a.c,v. he t,ctc pool i� �, Wp��lcrf -.f Eta T>% S 100k.5 1-0 h2 ile wocS (>(oFC45�ow41 Ll Or.(,� _ 1-0 zfI A , VI V .1A LA-" ksE. Please check one Newport Beach Resident 0 Other Newport Beach Business = City Hall Employee 0 LtJ ca,2 C:f tau 410 y-t G Gr «n mar r✓� �ny�� c T—U L- ! a.4 Please check one Newport Beach Resident Other a Newport Beach Business 0 City Hall Employee 0 Please check one: Newport Beach Resident Other O r� U fffgA 571 W !12 ce s-f<I'ot�t C✓ 5 < 94ove Col 4t6oq f ' h r l CS 61-'�, Newport Beach Business 0 .` City Hall Employee 0 jCl1-G ���U�� G j2 �( - S %IrV /1tl/cE A —Diofe l iehPlGS ko 71471F G.�>tr2 �s �a y-�n� , zz ,s I e`-" ldj "elU, 6o =� �6e2 4 vc,4 iz, %fir >��ie 6/ejelfcit Please check one: Newport Beach Resident EO Newport Beach Business 0 City Hall Employee 0 Other n J 0 0 LPA Al I f Please check one: Newport Beach Resident 0 Newport Beach Business n City Hall Employee Other LPA L11415, flAA9 �r ricabc cncl:K U[x. Newport Beach Resident Newport Beach Business 0 City hall Employee Other n P�J Iv • • Rossetti Please check one Newport Beach Reside ra Ne Aport Beach Business � City Hall Employee Other O C , 0 ✓1 'e ✓ -1-A - IMA" Please check one Newport Beach Resident Other = riff -A Rossetti g,4,1 ,, td,,- Newport Beach Business = Rossetti Cite Hall Employee Please check one Newport Beach Resident Newport Beach Business City Hall Employee 2- Please check one Newport Beach Resident Other = �A /c Rossetti Newport Beach Business = Rossetti City Hall Employee = P!ease check one Newport Beach Resident Newport Beach Business 0 - -City Hall Employee /I I'I / 6 Fj Rossetti PleaWcheck one ,e7f' � cp ` -�� Newport Beach Resident CS� Newport Beach Business E] City Hall Employee u� Other Rossetti Please check one Newport Beach Resident E!5"� Newport Beach Business City Hall Employee Other O d Mi aaXujdu:3 IEH ,IIJ I ssaLnsng quaag ia:,�", yodmaK auo )Joaga aseajd , Or" iVi i L !;passed 0 1 acsg� v OA 0 0 Rossetti Please check one Newport Beach Resident Newport Beach Business El Other City Hall Employee 0 ia> 0 0 Rossetti Please check one Newport Beach Resident F—I Newport Beach Business 0 City Hall Employee Other `� L� qv (,J T (-0 `" Rossetti >v �r� 4C' 1 Please check one Newport Beach Resident Newport Beach Busines� City Hall Employee = J� Rossetti — /. (,� Yid �✓ �c� ii't,� �.v Please check one Newport Beach Resident Other O Please check one Newport Beach Resident Other O Newport Beach Business a Rossetti City Hall Employee 0 � 1 %may z°C�0�09'i�a Newport Beach Business = City Hall Employee = ^r gym, 0 Rossetti L, Please check one Newport Beach Resident Newport Beach Business City Hall Employee Other = Rossetti NP�v u5el �aH _ (d a �— Ov v X PC, W-L,_ 6VI f PC) vo Please check one Newport Beach Resident Newport Beach Business City Hall Employee 0 Other = I'l l^ Please check one Newport Beach Resident 5t Other Newport Beach Business It Rossetti City Hall Employee = lr��Li/ 9XZ� t�'� i'�. -1:-1v �..� !, /, ' •rte - .. __ -_ _ Please check one Newport Beach Resident Other O Newport Beach Business 0 City Hall Employee 0 v /1j Q) J IN 4/ the lal/i�eseev s f I //?, .,- OoQAoldw3 IIeH KID = ssautsng yoeag uodm;)N -- n.� ivapisa-d yoeag luodmotq auo �oago aMld r(,, nip :� 1 r _ / ��•r bi; J. ..S '� a � add f �. �" * l +r.r. !J I . l i ✓j' 'i /�O = aaXoldwq IIeH 'CI!J T vin Y-)3va'? -�1s plassod = ssoumsng yoeag uod,naN it Aua �Ny?q 1 ,5vl a 4-VIlY O 1ay7O ddl ivapisa-d yoeag uodmaNT auo xoayo asaald *P') • .. asso�{Jc 0 Rossetti Please check one Newport Beach Resident 0 Other a r Please check one Newport Beach Resident Newport Beach Business = Rossetti City Hall Employee = Newport Beach Business = City Hall Employee 0 OaarioldcuH HUH YQTD F—I ssauisng yoeag uodmah Jaql0 1$ luapisa�j yaeag iiodmarN aao Inaya aseald °^ t� �l bTyi HI f)Y v S JA blM lr,� pd m aey o - s p"jPI -;I;LV - Sai nC/S �,')fvd 5 t� �l bTyi HI f)Y v S JA blM r4 0,17 j�w� i tj�8SS0� Ll Exhibit H Information Pending • ►Y3 0 0 Steven Sandland 1. Roblin Cywinski Jackson Stren 1) This design creates an iconic image for the City of Newport Beach and tries to capture the "spirit' of the City with the "wave" design of the clerestory windows and a "sail' design for the Council Chambers. 2) The parking structure is located against the berm along MacArthur Blvd. and not below the City Hall thereby remaining within the project cost Design Parameter. 3) The landscape plan maintains the natural landscape over the majority of the park area. 4) The design minimizes grading of the site and dirt export thereby reducing project cost. 5) Views of the ocean and harbor from MacArthur Blvd. are maintained. 6) The edge along Avacado Avenue is a continuation of library landscaping with a grove of olive trees that ties both sites together. 7) The plan creates an excellent working environment for the City stat7with abundant natural light from clerestory windows. 8) Access from visitor spaces in the parking structure into building is a short pleasant walk. 9) The plan creates a people friendly courtyard between the parking structure and City Hall with an outdoor cafe adjacent to the library. 10) The loading dock is located across from the library loading dock away from cars and pedestrians. 11) The vehicular entry experience is welcoming and the stacking distance for cars leaving the site is adequate. 12) Most of the parking structure will be naturally ventilated. 13) There is good vehicular access from library parking lot directly into the parking structure. 14) The design team has demonstrated excellent use of sustainable design elements in the building structure and systems which will result in significantly reduced operating costs. 0 0 Steven Sandland 15) The design team has stated a commitment to adjust their final plan to "be in alignment" with the approved budget and to "collaborate with the City to define the project in greater detail." Weaknesses (a) Modular design is inefficient. Some departments are split up between modules and are not sized correctly per the program. (b) lire "sail" clement on Council Chambers extends into the view plane. (c) The amphitheater area is too large and is a conflict with vehicular traffic. (d) The "civic concourse" is on the wrong side of the building. (e) There is a conflict with pedestrians and vehicles crossing from the park into the City Hall area. (f) The Council Chambers and community room are not combined and cannot be used together. (g) 'there is the potential for glare from headlights or windshield reflection from cars on the top deck of the parking structure. (h) The rendering indicates that interior lighting from the City Hall structure could create glare form the clerestory windows and building storefront. 0 0 Steven Sand1wd I1. Gonzalez — Goodale Strengths 1) The building has a good presence from Avacado Avenue. It has an appropriate setback and an open inviting appearance. 2) Both levels of the parking structure naturally will be ventilated. 3) The plan creates an excellent working environment for the City staff with abundant natural light. The use of window louvers will control glare. 4) There is good vehicular access from library parking lot directly into the parking structure. 5) The juxtaposition of the Council Chamber, community room and civic terrace maximizes public interaction within these spaces. The water element in front of the Council Chamber is soothing. 6) The building is a rectilinear shape which will minimize construction costs. 7) The organization of the spaces for the City Hall workspace is very efficient. They are flexible for future reconfiguration. 8) The plan has good pedestrian circulation between the park, City Mall and the library. 9) The one -stop -shop is prominently located and easy for visitors to find. 10) The plan has good pedestrian access from Avacado Avenue to City Hall and Council Chambers. 11) The plan has a civic terrace in front of the entrance to City Hall that is an excellent venue for outdoor activities. Weaknesses (a) This plan has located the parking underneath the City Hall structure which will increase project costs $7 million to $10 million over the budget established as a Design Parameter. (b) The lowest level of parking is at elevation 129 which will increase the quantity of excavation and export. (c) The natural ventilation of the parking structure requires the terracing of the dirt on the sides of the structure and will increase the quantity of excavation and export. 0 0 Sle"n Sandland (d) The sharp right turn at the ramp to the parking structure is an awkward entry and not welcoming to visitors. (e) There is a conflict between the drop off area tratlic and traffic exiting the parking structure at Farallon. (f) 'Ilse building profile will be visible as you drive along MacArthur Blvd. and could detract from the view of the ocean. (g) There are trellises on the roof that penetrate into the view plane corridor. (h) Wine bar use and location without any immediately adjacent parking is impractical. (i) No loading area or loading dock is identified in the plan. (j) The amphitheater located just south of San Miguel Drive is too large and in the wrong location. (k) Vertical circulation between the parking structure and the City Hall and Council Chambers is a problem as shown it is served by stairs and one elevator. (1) Split level plain is awkward- (m)The wetlands area has been reconfigured which will require additional permitting. • III. Johnson Fain 0 Steven Sandland Strengths 1) The park flows into, over and around the City Hall. "The park is the main idea" of this plan. 2) Good integration of the site and buildings. The buildings are designed as two pavilions in the park and partially buried. 3) The park design shows an good understanding of the Design Parameter of a natural park. 4) The terraces between City Hall and the library creates a nice space and an excellent connection for the two facilities. 5) The boardwalk from the OCTA site to the City Hall will be an excellent experience. 6) The building height conforms to view plane ordinance. 7) The landscape plan maintains the natural landscape over the majority of the park area. 8) Views of the ocean and harbor from MacArthur Blvd. are maintained. 9) The juxtaposition of Council Chamber, community room and adjoining terrace maximizes flexibility and public interaction within these spaces. 10) landscape plan is designed to enhance the wetlands and make habitats healthier. 11) The landscape plan effectively uses programmatic zones to create different landscape experiences. 12) The roofs are vegetated minimizing any visual impact of the building for residents above it. 13) The design team has confirmed that a LEED Silver designation is achievable. Weaknesses (a) This plan has located the parking underneath the City I fall structure which will increase project costs $7 million to $10 million over the budget established as a Design Parameter. (b) The below grade parking structure will require additional excavation and export increases construction cost. Ll Steven Sandia.: (c) With half the building below grade, it will require mechanical ventilation which will increase operating costs. (d) The sharp right turn of Farallon at the ramp to the parking structure is an awkward entry and not welcoming to visitors. (e) The loading dock is directly visible from Avacado Avenue. Its location also creates a conflict with the vehicles leaving the parking structure. (f) The plan as submitted provides no real definition of building architecture. No elevation along Avacado Avenue was provided. (g) The ramp to the parking structure passes directly below the Council Chambers which raises noise, vibration and security issues. (h) The plan removes the berm along MacArthur Blvd. The building will be prominent from MacArthur Blvd. (i) The building provides no natural ventilation and no natural light to a significant portion of the office work stations. (j) Pedestrian access to City Hall from Avacado Avenue is very circuitous. (k) The plan has no vehicular connection from library site into the parking structure. (1) The drop off area is in an awkward location. It is on the wrong side of the entry drive requiring two 180 degree turns to drop someone off then return to the parking area. (m) It is difficult to get to one- stop -shop on the upper level of the building from visitor parking on the first floor of the parking structure. (n) There is a conflict between the pedestrian path to the library and vehicles on the upper parking level. (o) The plan requires uses of the stairs or elevator to get to the Council Chambers and community room from the parking levels. 0 IV. LPA 0 Slewn Sandland Strengths 1) The parking structure is located against the berm along MacArthur Blvd. and not below the City Hall thereby remaining within the project cost Design Perimeter. 2) The design minimizes grading of the site and dirt export thereby reducing project cost. 3) Views of the ocean and harbor from MacArthur Blvd. are maintained. 4) The plan creates an excellent working environment for the City staff with abundant natural light from skylights. 5) Access from visitor spaces in the parking structure into building is a short pleasant walk. 6) The one - stop -shop is easy to find and walk to from the parking structure. 7) The plan creates a people friendly courtyard between the parking structure and City Hall. 8) The vehicular entry experience is welcoming and the stacking distance for cars leaving the site is adequate. 9) The design team has demonstrated excellent use of sustainable design elements in the building structure and systems which will result in significantly reduced operating costs. 10) The building is primarily a rectilinear shape which is economical to construct. 11) The organization of the spaces for City Hall work space is very efficient and flexible. 12) The juxtaposition of the Council Chamber, community room and civic terrace maximizes flexibility and public interaction within these spaces. 13) Most of the parking structure will be naturally ventilated. 14) The design team has demonstrated excellent use of sustainable design elements in the building structure and systems which will result in significantly reduced operating costs. 0 0 Steven Sandland Weaknesses (a) The tower extends into the view plane. The "flap" element on the top of the tower seems out of place with the rest of the design. (b) The building architecture is very plain. (c) The landscape plan is the weakest part of this master plan. It does not respect the Design Parameter for a "natural" park. (d) The manmade "tide pool" play area is not an appropriate use for this park. It will create maintenance and liability issues. (e) The creation of a "grasslands bluff' play area by filling in the wetlands crates environmental problems and is not an appropriate use. (f) The "jetty" element in the walk on the west side of the building is unnecessary and will create maintenance and liability issues. (g) There is no direct vehicular access from library parking lot into parking structure. It is blocked by the location for the central plant. (h) The plan provides no direct connection to the library. The walkway from the City Hall terrace passes next to the library loading dock. It will also require an elevator at the library to meet ADA requirements. (i) The use of bridge elements across portions of the park and over the entry drive will add to project costs. (j) No loading area or dock is identified on the plan. (k) There is the potential for glare from headlights or windshield reflection from cars on the top deck of the parking structure. (1) The photos of the model indicate that interior lighting from the City Hall structure could create glare from the skylights and building windows. 0 0 V. Kosetti Steven Sandland Strengths 1) The landscape plan maintains the natural landscape over the majority of the park area. 2) Views of the ocean and harbor from MacArthur Blvd. are maintained. 3) The vehicular entry experience is welcoming and the stacking distance for cars leaving the site is adequate. 4) Most of the parking structure will be naturally ventilated. 5) There is good vehicular access from library parking lot directly into the parking structure. 6) The edge along Avacado Avenue is a continuation of library landscaping. 7) The plan has windows on all perimeters of the building and maximizes light to all work stations. 8) The plan conforms to view plane requirements. 9) The surface parking spaces on the north parcel arc a good idea. 10) The roofs arc vegetated minimizing any visual impact of the building for residents above it. 1 I) The amphitheater is an appropriate size. 12) The loading dock is located off the library service drive. 13) The design team has demonstrated excellent use of sustainable design elements in the building structure and systems which will result in significantly reduced operating costs. Weaknesses (a) Parking layout is difficult to understand and navigate for visitors. (b) The City Council Chambers is not easy to locate. it also cannot be separately secured from City Hall. (c) Parking under 2 buildings had dead end aisles. E 9 Steven Sandland (d) Because the plan has three separate buildings the amount of exterior wall area is large thereby increasing cost. (e) No connection between the Council Chambers and community room. (f) The geothermal idea for HVAC didn't make sense in this location. (g) The footbridge over San Miguel Drive is an unprogrammed cost. (h) The parking structure separates the City Ball from the library. (i) There are three lobbies which could be confusing for visitors. 0) The plan does not show a one - stop -shop area or counter. 0 Newport Beach City Hall Suggested Modifications to Walter Richardson FAIA October 27, 2008 Bohlin Cvwinski Jackson & Park Design Competition Submitted Plans 0 Redesign entry plaza to eliminate pedestrian /auto conflicts. This could be wonderful plaza with surface parking. Reduce size or eliminate amphitheater. Improve pedestrian circulation from City Hall to park. Lobby /entry areas for offices should be on parking garage side with west side used for outdoor view terraces. Redesign floor plan of office buildings. "One -stop center" cannot be on two floors and in two buildings. This is simple solution as any configuration could occur under the overall canopy roof. Mitigate any light/glare potential from roof design — probably could be accomplished through use of some type louver system. North park parking. Reduce water element in park. Needs larger outdoor function area off community room or better combine with council chamber. Rotate building closer to north — away from houses to east. Solid green roof over parking instead of linear east -west strips. This is still most exciting piece of architecture. Suggested Modifications to Submitted Plans Walter Richardson FAIA LPA Join library parking at southeast corner of City Hall. Rethink southwest corner of City Hall to take better advantage of best view. Solve main park path ending at elevator. Join City Hall to library via bridge to second floor. Eliminate path around to front door. Redefine park design — less structured, more natural. Parking at north park. Push whole City Hall complex closer to MacArthur to allow more landscape along Avocado — perhaps extend olive grove. Weak park. Could develop limited surface parking along entry drive. 0 0 NEWPORT BEACH CITY HALL & PARK DESIGN COMPETITION RANKING OF DESIGNS Submitted by Linda Taylor AIA October 27, 2008 Introductory Comments First, I would like to reiterate that without exception, each of the designs clearly shows that it is the product of an excellent design team and a concentrated, heartfelt effort to provide the City of Newport Beach with an outstanding city hall in a park. Ranking them seems to make way too strong a statement, as though there are significant deficiencies in the lower ranked designs, when in fact it was very difficult to rule anyone out Among the things we wanted from this competition was not only a look at design concepts with enough development to be able to measure them against our community-based judging criteria, but also glimpse into each design team's philosophy towards making public buildings and spaces. There is still much to resolve before there is an actual completed design, so it is important at this point to have a sense of each team's approach to tackling our project, which so far has included varied, sometimes loosely defined and conflicting interests. Taking from the project description and design criteria set forth by the City, one of the more unique characteristics of this City Hall is its coexistence with the natural park. And not the typical side -by -side coexistence but an integrated "can't tell where one stops and one starts' sort of coexistence, at least that's my interpretation of the meaning of "City Hall in the Park." We need a design that recognizes that our site existed first as a civic commitment to open space, and now that it has been called into service for a city hall and park site, the design must very carefully respect what is being given up. In this way, the winning design concept needs to have the park as a "main event" or guiding principle of the design. This is not to say that the building is not an important civic building that deserves a design that will make the citizens of Newport Beach proud. It means we are looking for a design that accomplishes both visions. Functionality The judging criteria allocated 30% to Functionality of Design, including building functionality, park functionality, and integration of the park, city hall and existing library. Building Functionality Although functionality and responsiveness to the programmatic needs of the users are essential keys to design success, the building at this point is still quite conceptual and in need of direct dialogue between the users and the designers in order to ensure true functionality. The bulk of the programmed City Hall space is comprised of offices and workstations with typical support spaces. This is not a highly specialized use nor particularly complex it its circulation and adjacencies, with the possible exception of the attention that must be paid to ease of public access and public assembly. Most teams chose a simple and appropriate modular approach with adequate Flexibility to make significant adjustments in the departmental !ayouts when the users and the designers actually get together. In the absence of that important dialogue (as well as detailed floor plan information), I did not focus as much on the internal arrangement of spaces as on the ability of the overall design to undergo modifications of form without fighting or losing the integrity of the building concept. 0 0 Newport Beach City Hall Design Competition Ranking of Designs - Linda Taylor AIA October 27, 2008 Page 2 In this regard, the strongest were the BCJ and the LPA designs. BU's design uses modular "floating" roof sections supported on a lightweight steel frame allowing maximum variation in the arrangement of spaces below. LPA's design has a similar (although less spectacular) roof structure hovering over a modular interior space. Both of these solutions offer greater flexibility than the others as they are not constrained by a retaining wall aspect at the north and /or east ends of the building, or considerations for the structural and building systems components penetrating the subterranean parking layout below. The Rosetti plan appeared to offer the least flexibility by splitting the program into three separate buildings. With regard to the most public and distinctive part of the building, the City Council Chambers, four of the five designs (Rosetti being the exception) provided a version of a separate and visible pavilion for this function. This is a desirable approach and should be retained, especially in combination with the community room One aspect of functionality that did not seem to get its due attention is the service and maintenance side. The BCJ, LPA and Rosetti designs all provided service access off of a common driveway with the Library service entrance, a concept that may turn out to be the most straightforward and least offensive to accomplish, but it nevertheless makes for a poor first view of the building as you approach up Avocado. The Johnson Fain design shows it along a primary subterranean parking drive aisle and the Gonzalez Goodale design does not show one at all, but can probably be assumed to be similar to Johnson Fain. Given the size of trucks and frequency of deliveries, this remains a potential problem for all of the designs, but more so for the parking structure solutions. Park Functionality As intimated in my introductory comments, the primary concern here is about understanding and meeting the expectations of the community. As far as appropriate public amenities such as resirooms, picnic areas, drinking fountains, convenient parking, accessibility, etc., no one nailed it all down, but all of the designs could reasonably be expected to provide the necessary amenities. Of greater concern is the degree to which the existing site is being reshaped in the various designs. This is a concern for several reasons, including cost considerations, view shed expectations, and restoration approach and philosophy. It is clear that the natural plant and animal habitats on this site have been disturbed and degraded by human activities in the area for decades, and that simply leaving it alone will not make it the park that the community desires. However, a minimalist approach that seeks to retain as much of the existing topography as possible, and return it to a state of healthy and naturally sustainable ecosystems while providing reasonable access for human enjoyment would be ideal. In the presentations, the designers covered a wide range of interpretations of the term "natural park ". The Johnson Fain proposal stood out for its retention of almost the entire site as a restored habitat; truly a city hall embedded in a nature park. The Olin Partnership, Johnson Fain's landscape design firm, gave an impressive litany of possibilities that could he tackled as a whole or incrementally, but in the end, this design retains the look and feel of the existing topography to a greater degree than any of the others Next in line, I favored BU's approach for its simplicity and restraint as well as Rosetti's for its comprehensive view of the various opportunities afforded by the park site, and for their successful 0 0 Newport Beach City Hall Design Competition Ranking of Designs — Linda Taylor AIA October 27, 2008 Page 3 treatment of the MacArthur berm. The Gonzalez Goodale scheme had a number of good ideas, but generally seemed to overwhelm the existing topography with extensive site work, as did the LPA design. Integration of the City Hall, Park and Library My vote for the best integration of the three elements is the Johnson Fain design. In their scheme, the City Hall hunkers down low under the view plane on the north and east leaving only the park vista for travelers on MacArthur and neighbors in Harbor View, and then opens up to plazas and terraces on the south end of the site in an exciting outdoor civic space, engaging the library and providing ocean views to the west for the City Hall staff and visitors. The design makes the most of a progression from the more structured, manmade environments at the Library end becoming more natural as you move through the City Hall and up into the park, all clearly connected and inviting the walk BCJ visually integrated the City Hall and the Library along Avocado by extending the existing olive grove all of the way to the Farallons entrance. They also drew a connection from the park down between the City Hall and the parking structure, opening up into a large triangular plaza space that then gives potential access to the Library. Gonzalez Goodale allows for the Library and City Hall to acknowledge each other, but leaves the natural park out of the picture, up the hill on the other side of the City Hall. Both of these represent opportunity for greater integration than is delineated, and could work well. The LPA and Rosetti schemes both have barriers to integration with the Library, although the parking structure in Rosetti s is more significant than the service road in LPA's. On the flip side, LPA's park is not well integrated with the City Hall, while Rosetti's is stronger in that regard. FUNCTIONALITY RANKINGS: Building: LPA, BCJ, GG, JF, RS Park: JF, BCJ, RS, GG, LPA Integration: 1F, BCJ, GG, LPA, RS Composite: BCJ, JF (tie), GG, LPA (tie), RS Creativity and Timeless Design (25 %) No doubt this is the most subjective of the criteria, but the description given to the competitors mentions the following qualitative design characteristics: unique, exciting, interesting, appropriate, original, substantial, long -term, a valuable contribution to our social and physical environment. I believe that the description best fits both the BCJ and the Johnson Fain designs. However, I am giving the edge to BCJ for the following reasons: 1.) The BCJ design is compelling in its richness of form layered upon an underlying structural simplicity. 2.) It has the requisite "open and airy feel" that perfectly addresses our climate. 3.) The rhythmic ocean wave roof is a graceful metaphorical expression of the place that is Newport Beach, and uses the repetitive form to capture an economy of scale without being monotonous. 4.) It uses a simple and appropriate palette of materials that effectively convey a friendly human scale to welcome the community 5.) It has the strongest potential for an exciting, iconic presence without overwhelming the site. 6.) The BCJ team has an amazing track record of delivering civic and community projects of the highest design quality, each unique and responsive to its client, site and program needs. The first -class Newport Beach City Hall Design Competition Ranking of Designs - Linda Taylor AIA October 27, 2008 Page 4 engineering firm of Arup and the landscape design credentials of Peter Walker (PWP) additionally reinforce this choice. CREATIVITY/ TIMELESS DESIGN RANKINGS: BCI, JF, LPA, RS, GG Practicality / Efficiency / Cons tructability (25%) One of the primary issues here is parking. There is little doubt that subterranean parking, which is proposed in three of the five schemes, will be a significant construction cost premium. If it is mechanically ventilated, it will also represent a significant increase in energy and maintenance costs in the years ahead. The question we must ask is one of cost benefit: Is retaining the land for people and nature worth the cost of putting the cars underground? As open space continues to become scarcer, we will all place a higher value on retaining and protecting it. And it is a decision we cannot go back on later. As far as selection of a preferred scheme, I find this decision to be a toss up ... definitely cheaper to stay away from subterranean initially, but potentially a very good value twenty years from now and beyond when open space is at a higher premium, A related cost issue focuses on effective use of materials and building technologies. Concrete design and construction will play a much greater role in the Johnson Fain, Gonzalez Goodale and Rosetti schemes. This can be an Important consideration in an open bid process where concrete work can vary hugely in quality, and correcting a poor concrete job is virtually impossible. Building floor slabs atop subterranean parking will require far more attention in order to minimize deflections that are acceptable in a parking structure but not in an office building. Structural grids will be dictated by optimal parking space layouts rather than optimal open office bay layouts. Utility drops will be less flexible with parking below, as are slab depressions. In the Johnson Fain design, some of the cost premium may be offset by the dual use of concrete retaining walls as the exterior of the building, thereby eliminating a building "skin" on those surfaces. Their design is also helped by its simple, rectangular form. The Rosetti design appears to have more complexity in its concrete forms, and the Gonzalez Goodale design requires surface treatment to its exterior walls in addition to extensive retaining. Both the BCJ and LPA designs are able to capitalize on simpler construction technologies and lighter structural components. The BCJ roof appears complex and therefore potentially more expensive, but the description provided in the submittal (one of the few that provided this information( shows it is actually quite simple and not uncommon. The curved steel beams will definitely carry a premium, but should not be considered exotic by any means. The vierendeel trusses are everyday stuff so don't let the name fool you. I am assuming that the LPA structure is similar, but simpler still and certainly can be accomplished very cost effectively, although not much is described in their presentation. Other cost premiums include export of excavation dirt and other site development costs. Excavation is a fact of the project, and although LPA sought to offset the export burden by using the fill dirt on site, it poses a significant problem to the community's understanding of the natural park concept. BU probably did the best job of treading lightly on the site as a compromise between constructability/ sustainability efficiency and community needs. 9 0 Newport Beach City Hall Design Competition Ranking of Designs - Linda Taylor AIA October 27, 2008 Page 5 Another materials cost premium will be in high - performance glass, as extensive use of glass meets the staff and community desire for natural light, but it must not be at the expense of high energy consumption. BCJ, LPA and Johnson Fain effectively use passive and active sun control and ventilation systems to reduce glazing impact, but glass cost will be a factor in all of the schemes except possibly Rosetti. Under the topic of practicality, I would include the degree to which screening of light spillage and /or reflective surfaces such as cars will be necessary to satisfy the expectations of the neighbors across MacArthur and on up the hill. Each of the schemes had drawbacks in this regard: 1.) Johnson Fain: Design penetrates the MacArthur berm, which could possibly be mitigated. Otherwise, this design has the least impact on the neighbors' views. 2.) Gonzalez Goodale: Building has monitor roof projections which could be mitigated, but the potential for light spillage on the east side appears to be significant from the section drawing. 3.) BCJ: The main roof is totally below the view plane, but some ambient light spillage could occur from the clerestory windows facing north. Also the "sail' on the council chambers may require modification for light mitigation. The parking structure proposes trellis screening on the upper deck which will require careful detailing to effectively mitigate reflection and light spillage, but it may also help buffer the City Hall building from views from above. 4.) Rosetti: The design has the advantage of a good berm along MacArthur as well as green roofs on the buildings, but it appears to have an exposed upper parking deck adjacent to the Library with potential for exposure to car reflections and light standards. 5.) LPA: There are many similarities to the BG design with a need to implement similar mitigations. PRACTICALITY, EFFICIENCY & CONSTRUCTABILITY: LPA, BCJ, then a gap followed by 1F, GG, RS Sustainability (20 %) Basically all of the designs exceeded the sustainability goals in both ideas and expertise. Although they are all quite different, I have confidence that any of the teams will be able to assist the City in evaluating the cost benefit of the various strategies From the submittal materials, I ranked them as follows: SUSTAINABILITY: LPA, BCJ (tie), RS, GG, JF Conclusion / Rotings Based upon my evaluation, which included careful review of all materials plus at least four walking trips through the site as well as consultations with engineers, contractors, and land planners (none involved in this project), I have ranked the teams as follows: 1. Bohlin Cywinski Jackson (94) 2. Johnson Fain (88) 1 LPA (83) 4. Gonzalez Goodale (76) 5. Rosetti (71) "RECEIVED AFTER AGENDA Harkless, LaVonne •RIPJTED:" �h 1 -12 -09 From: Karen E. Tringali [karen tringali@msn.com] Sent: Wednesday, November 12, 2008 11.37 AM To: Henn, Michael. Webb, Don (City Council). Rosansky, Steven. Daigle, Leslie, Selich, Edward, Curry, Keith. Gardner, Nancy Cc: Bludau, Homer, Harkless, LaVonne Subject: City Hall & Park Master Plan As you prepare to conclude the City Hall r3 Park Master Plan design phase this month, you will be making decisions on which architect best understood your vision for a new city hall and its parks Your vision was articulated to the contestant architects in the form of the General Design Parameters, which were developed in part as a result of issues that were highlighted by both sides on the Measure B campaign Whether you pick one of the designs as submitted by the contestants, or whether you develop a hybrid design incorporating the best of each, the most important component of your decision-making process is how well the selected design follows your commitments to the public as published in the General Design Parameters From my perspective. the most important of the 16 parameters include 1 Protect public and private view corridors along MacArthur and surrounding streets a) manage building and architectural feature heights within established view planes b) minimize site lighting and glare 2 Develop park components in the same timeframe as the city hall and parking structures as an integral part of the master plan a) one park area with ocean views, meadows restrooms and other activities - oriented amendies b) one park area with ocean views in a more natural state reflective of the area 3 Achieve at least a LEEDS Silver standard if not better 4. Manage costs within budget criteria, particularly in light of the current and predicted economy This is a project that we all want to be proud of Being proud not only of its appearance, functionality and environmental sensitivity, but proud of the process by which it takes shape And that process includes continued public participation on our part. and as our council your enforcement of and commitment to the General Design Parameters which you developed in the spirit of the communities' dialog resulting from Measure B Thank you for your efforts on our behalf Xaren Tringah Corona del Mar 949.719.9390 P/F 11111A Pieria wrisoer the environment before printing O � ism n N T Di s 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 17 November 12, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Larry Tucker, Chairman City Hall and Park Master Plan Design Committee SUBJECT: City Hall Design Committee — DRAFT Final Report ( mum 11110-08] ISSUE This document is the draft Final Report of the City Hall Design Committee ( "Design Committee "). It is anticipated that this draft Final Report will become the Final Report at the Design Committee's meeting of November 10, 2008. The Final Report will be presented to the City Council on November 25, 2008 at which time any changes to this draft Final Report will be brought to the attention of the Council. COUNCIL ACTION: Receive and File. DISCUSSION: I — COMMITTEE FORMATION, TASKS By Resolution 2008 -14 (see Attachment A), on February 26, 2008, the City Council established the 6- member City Hall Design Committee ("Design Committee "). The purpose of the Design Committee is to: A. Issue a Request for Qualifications (RFQ) to world class architects interested in participating in a design competition for the City Hall and Park Master Plan project; B. In consultation with the Ad Hoc Building Committee, develop recommendations for a detailed set of General Design Parameters to be used by the participating architects; C. Review the qualifications of architects who respond to the RFQ; D. Recommend to the City Council three to four architects to participate in the design competition; E. Review design concepts submitted by the selected architects, and hold public meetings to receive public input on the design concepts; and F. Recommend an architect and design concept to the City Council. The members of the Design Committee are: • Larry Tucker (Chair and ex officio); • Andy Bowden, Licensed Landscape Architect; • Rush Hill, Licensed Architect, • Walt Richardson, Licensed Architect; 0 0 City Hall and Park Design Competition — Draft Final Report November 12, 2008 Page 2 • Steve Sandland; Licensed Architect; and • Linda Taylor, Licensed Architect. The Design Committee has also provided technical support for the City Council Ad Hoc Building Committee (formed on March 11, 2008 by Resolution 2008 -16 and referred to as the -Building Committee "). Mayor Ed Selich and Councilmembers Steve Rosansky and Mike Henn comprise the Building Committee. In consultation with the Building Committee, the Design Committee accomplished the following tasks in addition to Items A -E above: Received questions and proposed answers in regards to the terms of the RFQ. Suggested edits to the General Design Parameters (see Attachment B), the document that sets forth the design constraints applicable to the City Hall and Park site. Prepared a Judging Procedure and Criteria (see Attachments C and D) by which to judge the responses to the RFQ and the design competition itself ; Used the Judging Procedure and Criteria to review more than 50 responses to the RFQ, eventually narrowing the submittals down to thirteen (13). Prior to final selection of the top five firms for the design competition, staff contacted client references for the thirteen firms on the short list and made the comments available to the Design Committee. Five (5) firms were then selected, formally recommended to and accepted by the City Council. The five finalist firms are: • Bohlin Cywinski Jackson • Gonzalez Goodale • Johnson Fain • LPA, Inc. • Rossetti 5. Accepted questions raised by the five design finalists and proposed answers prior to the submission of their designs (see Attachment E). 6. Conducted an all day public hearing on Saturday, September 27, 2008 where each of the five finalist firms made a 45 minute presentation of their concept plans followed by a 45 minute question and answer session. 7. Held three public hearings to obtain public input regarding the five finalist firm concept plans. 8. Prepared this Report to the City Council, which includes a ranking of the designs. an explanation of the Committee's reasons for the design given the highest ranking, and Recommendations for Further Consideration by the City Council. Importantly, the RFQ and the subsequent Professional Services Agreements executed with each of the five firms provide that the designs submitted are the property of the City upon submittal. These documents, in part, read as follows: From the RFQ: The City reserves the right to divide the Project into multiple parts, to reject any and all proposals and re- solicit for new proposals, or reject any and all proposals and temporarily or permanently abandon the Project. City makes no representations, written or oral, that it will enter into any form of agreement with any respondent to the RFQ for any project and no such representation is intended or should be construed by the issuance of this RFQ. 0 0 City Hall and Park Design Competition — Draft Final Report AS REVISED November 12, 2008 Page 3 Ownership of Submitted Design Documents: All design documents, DVDs, and accompanying materials submitted to the city by the firms through this RFQ process shall become the property of the City of Newport Beach upon their submission. From the PSA 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. At the Design Committee's direction, city staff placed extensive information, including agendas, minutes, the General Design Parameters, Judging Procedure, Q & A's, and various technical reports for the City Hall and Park site on the City's website (www.citv.newport- beach.ca.us). The website became a primary method of communicating information to the design firms and to the public. The Design Committee has met on 12 occasions to date: April 7, April 21, May 5, May 19, June 2, June 16, July 28, September 27, September 29, October 13, October 27, 2008 and November 10, 2008. The meetings lasted two to three hours, except the meeting of September 27, which lasted nine hours. Each meeting was open to the public, and the agenda for each meeting was published on the City's website. Each meeting provided at least one period for public comment, but most meetings provided multiple opportunities for audience input. On Saturday, September 27"', the Design Committee held an all -day meeting during which each of the final design teams presented their concept plans to the Design Committee. Notice of the meeting of September 27 was announced by the Mayor at the City Council's meetings on September 9" and September 2341. The all -day meeting was also advertised three times in the Daily Pilot and was the subject of a front page Daily Pilot article on September 24, 2008. Detailed minutes of the meetings have been published and are available for public review. The "boards" that show the five concept plans presented on September 27" have been on display since the end of September at the Central Library, the Mariner's Branch Library, the Balboa Peninsula Branch Library, the OASIS Senior Center, the Newport Coast Community Center and City Hall. Several members of the public provided comments on special comment cards — these comments were reviewed by the Design Committee and are attached (Attachment F). In addition, commencing October 5, 2008, the presentations part of the Committee meeting of September 27 has been shown several times on the City's "NBTV" community programming channels (Channels 3130). II — RECOMMENDATIONS The Design Committee has ranked the architects and design concepts, but also has a series of other recommendations for consideration by the City Council. 0 0 City Nall and Park Design Competition — Draft Final Report AS REVISED November 12, 2008 Page 4 A. — RANKING OF DESIGNS The primary purpose of the Design Committee. as noted in Resolution 2008 -14 (F), is to make a recommendation to the City Council as to the architect and design concept which the Design Committee believes that the Council should select. However, because the five designs were all well thought out, and were so varied in approach, the Design Committee concluded that it would rank the designs in order of preference and provide a commentary as to why the Committee ranked the first choice design as it did, so the City Council has the benefit of the Design Committee's thinking. Pursuant to the Judging Criteria, the Design Committee members considered four criteria in reaching their individual rankings: (i) Functionality of Design; (ii) Creativity and Timelessness of Design, (iii) Practicality, Efficiency and Constructability; and (iv) Sustainability. The Design Committee decided that each member would award 5 points for his/her top choice, 4 for his /her second choice, and so on. The Committee's point tally was as follows: Note from the above tally chart that Bohlin Cywinski Jackson (BCJ) received three top scores, while tying LPA in total points. Gonzalez Goodale and Johnson -Fain also received one top score each. Based upon the fact that a majority of the Committee ranked BCJ as its top choice, the Committee on a snlitvote of 3-2. determined that it would recommend BCJ's design to the City Council as the top design. The Committee articulated the following major reasons for its decision: • The aesthetics of the structures — one Committee member said, "the design captures an iconic image for the City of Newport Beach and tries to capture the spirit of the city with the wave design of the clerestory windows and a sail design for the Council Chambers." Another said. "(BCJ's is) the most exciting design concept." • The parking structure is separate from the City Hall facility, located along the berm of MacArthur Boulevard, and will be less expensive to build than an entirely or mostly underground parking facility; • The design minimizes grading and dirt export, minimizing cost; • The design creates an airy working environment for the City staff, providing extensive glass and clerestory windows allowing significant natural light and direct sun flow into the work environment. • The design creates a people - friendly courtyard between the parking structure and City Hall; • The roof structures cover a large amount of space, allowing the buildings underneath flexibility within the office pods that comprise the City Hall building; Gonzalez- Johnson- BCJ LPA Rossetti Goodale Fain Bowden 00 © ©© Hill © ©0 ©0 Richardson ©0 © ©0 Sandland ©0 © ©0 Taylor © © ©00 Note from the above tally chart that Bohlin Cywinski Jackson (BCJ) received three top scores, while tying LPA in total points. Gonzalez Goodale and Johnson -Fain also received one top score each. Based upon the fact that a majority of the Committee ranked BCJ as its top choice, the Committee on a snlitvote of 3-2. determined that it would recommend BCJ's design to the City Council as the top design. The Committee articulated the following major reasons for its decision: • The aesthetics of the structures — one Committee member said, "the design captures an iconic image for the City of Newport Beach and tries to capture the spirit of the city with the wave design of the clerestory windows and a sail design for the Council Chambers." Another said. "(BCJ's is) the most exciting design concept." • The parking structure is separate from the City Hall facility, located along the berm of MacArthur Boulevard, and will be less expensive to build than an entirely or mostly underground parking facility; • The design minimizes grading and dirt export, minimizing cost; • The design creates an airy working environment for the City staff, providing extensive glass and clerestory windows allowing significant natural light and direct sun flow into the work environment. • The design creates a people - friendly courtyard between the parking structure and City Hall; • The roof structures cover a large amount of space, allowing the buildings underneath flexibility within the office pods that comprise the City Hall building; 0 0 City Hall and Park Design Competition — Draft Final Report AS's November 12, 2008 Page 5 • BCJ was able to capitalize on inexpensive technologies for the roof /structural system. The curved steel should not be considered exotic or expensive, and most materials are 'everyday items' using very common construction technology; • There is good vehicular access from the library parking lot to the parking structure; • The design demonstrated use of sustainable design features in the building structure and systems which should result in reduced operating costs; • The landscape along Avocado Avenue is a continuation of the library landscape scheme and ties the sites together; and • The Park plan proposes to maintain as is, those areas that would require State and/or Federal permits were they to be modified. The Park design leaves most of the topography of the Park unchanged so that it is primarily a - natural park." The Design Committee noted during and after the presentations that each of the five plans could benefit from certain refinements /redesigns to the initial design. The same is true of the BCJ plan. Accordingly, the Committee suggests that the City work with BCJ to redesign the following parts of the BCJ Concept Plan, and such other additional elements as the City deems appropriate: • Consider changing the "Pod" modular sections. The modular sections should be changed to improve circulation and to promote the "One Stop Shop" concept; the floor plan needs redesign since a one -stop shop on two floors and in more than one pod will not be efficient. But the fact that the design team can do any configuration of buildings under one canopy is beneficial. • Review the Sail Design Feature. Consider the modification of the sail feature to reduce the incursion into the view plane. • Add Surface Parking. The Entry plaza should be redesigned to allow for some surface parking. • Improve the Aesthetics of the Parking Structure. The proposed parking structure could benefit from a redesign so it will look less like a parking structure. • Reduce Amphitheatre and Add Parking. Consider reducing the size of the amphitheatre to create more open space. The design needs to add more parking to the north, for the park. • Integrate City Hall and the Park better. The park's integration with City Hall needs work. There is a significant conflict between vehicles and pedestrians which needs to be addressed. • Refine Council Chambers, Community Room and Parking. The Community Room needs an outdoor function area or should be combined with the Council Chambers. The Council Chambers should be able to be expanded. The Council Chambers is out front, close to Avocado, but all of the parking is behind the City Hall building. • Reduce Light and Glare. Consider using louver or other systems to address light and glare from the clerestory windows. The building should be reoriented slightly so that the clerestory windows are not as prominent from above the site. BCJ's design has the highest potential for glare from the east, so mitigation needs to take place. The exposure of the west side of the building to direct sunlight should also be addressed. • Improve the Link to the Library. The eating area between the City Hall and Library could be improved to be -a nice place to go for visitors, staff, and Library patrons. This would make the Master Plan a true Civic Center that's alive and vibrant." The connection between the Library and the parking structure was never fully explained. 0 0 City Hall and Park Design Competition — Draft Final Report AS REVIM November 12, 2008 Page 6 The point differential between the first place team and the fourth place team was narrow. If the City Council were to prefer another one of the design teams and its concept plan over BCJ and its plan, the Design Committee would be pleased to provide the City Council suggested amendments to that alternate plan if the City Council desires that the Design Committee do so. B — RECOMMENDATIONS FOR FURTHER CONSIDERATION Unlike a design competition that would ask competitors to use a flat site with circulation improvements and utilities already brought to the site, the teams in this competition had to work with a site with considerable dirt export and significant constraints as set forth in the General Design Parameters. Adding to the complexity, the design includes a park element. a City Hall element, and a significant amount of parking, all of which were to be integrated to the extent feasible with the existing Central Library. Some of the designs were stronger on the park and site design elements than others. Some were stronger on building designs or the parking solutions. So while the Committee did not have the authority to `mix and match" concepts, but only to rank the designs, the Committee does have several recommendations that the City Council may want to consider as it seeks to come up with the best possible project for the City. In other words, if the City Council were to concur with the ranking recommended by the Committee, the Council may nonetheless conclude that the highest ranked design of the Committee could be improved by incorporating concepts from other plans in the final project. Several members of the Design Committee provided written comments to the designs presented and those comments are attached in Attachment G for the City Council's edification. The Committee's Recommendations for Further Consideration are intended to provide general observations that the Council may want to consider as it implements a design. The Committee's Recommendations are as follows: Design Elements. The Design Committee spent most of its meetings on September 29 and October 13, 2008 discussing the five concept plans and summarizing what the Design Committee thought were important design elements which would be desirable in any plan. The Design Committee believes that, while each concept plan and design team may not have each design element addressed at this time, the City Council may want to consider working with the selected Design Team to implement the following design elements in the Final Design (in no particular order): • Maintain the berm along MacArthur Boulevard; • Provide appropriate and effective mitigation of light and glare on the site, so that neighboring residences are not adversely affected by light and glare; • Separate pedestrian and vehicular access ways and primary circulation elements; • Provide a floor plan that will easily accommodate future modifications to internal department sizes and layouts, i.e. provide for maximum flexibility; • Be logistically feasible, understanding how the duration of construction will affect the surrounding commercial, retail and residential area; • Integrate the Library so as to develop a true "civic center"; • Provide for restrooms for visitors to the park; • Provide for easy parking for visitors to the park; City Hall and Park Design Competition — Draft Final Report AN . November 12, 2008 Page 7 • Show strong visual and physical connectivity between the North Park Parcel to the Central Park Parcel (such as textured paving to cross San Miguel): • Consider a -cafe" , small coffee shop or coffee /snack cart or kiosk for visitors /employees in the City Hall building: • Have a vehicular connection from City Hall parking to the Library's existing parking lot • Contain the Council Chambers and the multi - purpose community room in a single building or wing separate from the remainder of the City offices to allow for easy after - hour and weekend access to the Council Chambers and multi - purpose room. A direct link between the City offices and Council Chambers for staff and elected and appointed officials would also be recommended: • To the extent possible, design the Council Chambers and Community Room to be able to act together as a single large community space, and also provide for the possibility of useable contiguous outdoor space for community events: • Provide access to natural light from all staff workstations: • Provide continuity of landscape treatment from the Library olives along Avocado: and • Provide screening or other appropriate accommodation for roof- mounted antennas and dishes as required for City operations. • If feasible, consider retaining the high point of the southernmost meadow area to maintain the oceanward view. 2. Design Team's Flexibility. The Design Committee believes the selected design may have significant changes as the schematic design phase of the project plans proceeds. Therefore, the Design Team selected should have a demonstrable track record of good working relationships with clients, and meeting their wishes even if those wishes are not entirely consistent with the Design Team's vision. 3. Staff Input. The City Council should review and consider the merits of the Report of the City Staff on the construcfability of each Plan presented and the opinions of staff as to the functionality of each Plan (the perceived efficiency of staff work -flow, comfort and ambience, and maintenance risks associated with the operation of the facility contemplated in each plan). This Report is included as Attachment H. 4. V Party Cost Estimator. The Committee recommends that the City Council undertake an independent investigation of the cost information submitted by each of the designs deemed a feasible alternative design by the City Council. For budget information submitted by design teams see Attachment I. 5. Phasing. The Final Design should depict a timeless building. However, if budget constraints would impact the ability of the City to construct the Council's preferred design, the City could consider phasing the project to construct the building in Phase I and the park in Phase Il. This could be accomplished by cleaning up the existing vegetation by removing non - native species, filling in those and other barren areas with native species, irrigating only as necessary to allow the newly planted materials to survive and then allow the remainder of the park to remain natural. The park element could remain that way, or the design features of the selected park design could be implemented later as money to make those improvements becomes available. 0 0 City Hall and Park Design Competition — Draft Final Report November 12, 2008 Page 8 III — IN CONCLUSION This report concludes the Design Committee's scope of work as outlined in Resolution 2008 -14. As it concludes its work, the Design Committee wishes to state its sincere thanks to the many firms that submitted thorough responses to the RFQ and especially to the five design teams chosen for the competition. The effort and creativity that went into each of the five Concept Plans from the design teams was impressive. It was clear to the Design Committee that each team took to its task very diligently, getting to know the community, the site, the facility needs, and the project parameters. Each design had elements that were inspired and creative — reflecting the high caliber of the competing firms. At its meeting on November 10, 2008, the Design Committee approved this Report on a unanimous vote. Lastly, the Design Committee would also like to thank the City Staff and especially Assistant City Manager, Dave Kiff for doing an outstanding job as the staff liaison for the Design Committee. Much of the RFQ, General Design Parameters, answers to questions and this Report were authored in whole or in part, or edited by Dave. His work was timely, professional and much appreciated. Respectfully Submitted, LARRY TUCKER Design Committee Chairman Attachments: A — Resolution 2008 -14 B — General Design Parameters, as Amended C —Judging Criteria — RFQ D — Judging Criteria — Concept Plans E — Q & A for Phase II — The Five Concept Plans F — Responses from Public Comment Cards G — Comments from Committee Members H — City Staffs Functionality Report I — City Hall Cost Summaries City Hall Cost Summaries Important Note: The table below reflects rough estimates. In some cases (see notes) the design teams did not break down specific cost items, stating instead that the designs are within the General Design Parameter estimates. Staff cautions that this comparison is challenging and may not be fair to the firms (Gonzales Goodale, Rossetti, and LPA) that did provide more detailed cost estimates for each component. Or to Johnson Fain, which restated its confidence that its $69 million estimate reflects the total cost of the project. For example: • Note pl — The City's General Design Parameters (see next page) assumed that grading costs are included in a site work amount of $15 -20 • per square foot. • Note p2 — Bohlin Cywinski Jackson (BCJ) said that City Hall would cost $36.7 million and that BCJ's plan for the park and parking structure reflects the GDPs with the exception of the significant site prep / groding work required to construct the new building below the view plane. • Note K3 — Gonzalez Goodale's cost estimate includes grading and detailed cost breakdowns. The higher cost of the parking structure reflects the fact that Gonzalez Goodale proposed a parking structure below City Hall. • Note p4 — Johnson Fain did not break down costs, but asserts that the entire project (including grading for parking below City Hall) is estimated at $69 million. • Note N5 -- LPA identified $3.47 million in grading costs which staff included in LPA's "Park and Site Work" amount below — this inflates LPA's estimate, but to a level assumed to be the same as Gonzalez Goodale and Johnson Fain. • Note M6 — Rossetti had some subterranean parking, some parking in a structure, and some surface parking. Rossetti included $5.6 million for earthwork (cut, fill, export), an amount which is included in Rossetti's "Park and Site Work" amount. Rossetti's amounts below do not include $1.89 million for the plan's bridges. rM Name t Parking Structure Parking Structure Park & • GDP Budget Estimate $ 36,000,000 $ 11,250,000 5 12,000,000 $ 59,250,000 1 Bohlin Cywinski Jackson $ 36,763,102 $ 11,250,000 $ 12,000,000 5 60,013,102 2 Gonzalez Goodale $ 32,375,549 $ 20,819,329 $ 10,747,980 $ 63,942,858 3 Johnson Fain proposed this model $ 69,000,000 4 LPA $ 38,799,209 $ 13,323,719 $ 19,603,284 $ 71,726,212 s Rossetti $ 37,143,000 $ 8,273,000 $ 6,892,000 $ 22,571,000 $ 74,879,000 6 City Hall and Paris Design Competition — Draft Final Report AS REVISED November 12. 2008 Page 10 RFQ's General Design Parameter: p. Budget Constraints — The budgetary goal of the Project is as follows • Approximately $400 -450 per square foot for the City Hall structure (not including FF &E); • Approximately $20- 25,000 per space for the parking structure; and • Approximately $15 -20 per square foot for landscaping, irrigation, access, site work (grading and drainage) and site • improvements. The above amounts are exclusive of soft costs. The City Hall is not at this time planned to be an "essential services building." The budget parameters expressed here are not absolute amounts but are intended to indicate the price range the City expects the project to cost. Designers should use these numbers as a guide in preparing their submittals. Design economy will be an important consideration. p a p 0 8 October 2008 Steve Badum, Public Works Director City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Dcar Mr. Badum: 40 RECRVED0MNSON FAIN 2(08 NR 12 IN & 29 SCOTT JOHNSON. FAIA DESIGN PARTNER r,r TI I CITY �c I 7 cr. ^u "RECEIVED AFTER AGENDA PRINTEL" - + 11 I 1 -12-A We appreciate the opportunity to address several items which have been raised as a result of our interview for the Newport Beach City Hall and Park. We were asked to provide clarification on both the labeling of the architectural plans and what the exterior building materials might be. Accompanying this letter is an I I x 17 inch booklet which attempts to do both. Plans are described and an index calling out all materials in the renderings and elevations has been included. We would be pleased to meet in person and discuss these items in more detail. With respect to questions regarding the conceptual construction budget, our initial estimates, which have been provided by an independent estimating firm and a California- based general contractor, show a total hard cost in the range of $69 million for the complete project as represented. We note that the budget target discussed by the City Hall Design Committee was approximately $60 million. We believe there are a number of areas which can be examined more closely in concert with the Committee, and perhaps others, in order to resolve this difference. Among the potential areas for cost reduction are: Relocation of first basement parking to grade for reduction in excavation and natural ventilation Reduction or removal of second level terrace and parking roof Reduction or removal of green roofs Reduction of park to area west of San Miguel Drive Simplification of park and reduction in plant materials and irrigation requirements Regrading of driveway walls to reduce retention Reduction in exterior building material costs Phasing portions of the current scope Potential sale of excavation materials in lieu of exportation and disposal ARCHITECTURE URBAN OEGf.A•RUNNWG INT.RIORS I201NORTHEROADWAY LOSANGELIMCAM112 3252746MIM. 3232740XFAX WV K*NSONFAWCON �J J O H N S O N F A I N We would be pleased to meet and discuss these items and others in more detail. While we fully understand the importance of budgets, particularly in public projects, and our many civic projects have been on budget and on schedule, it was our intent to demonstrate in our conceptual scheme as many qualitative and sustainable benefits as possible, knowing that the final scheme would be fashioned in concert with representatives of the public. Finally, should further budget comparisons be made between schemes, we respectfully suggest that all programs be confirmed for equality and priced by an independent estimator. We look forward to your thoughts and appreciate your interest in the possibilities for this great site. cc: Stephen Sandland, Architect Andy Bowden, Landscape Architect Rush Hill, Architect Walt Richardson, Architect Linda Taylor, Architect I arry Tucker, Chairman David Kiff, Assistant City Manager ENCS. AAOMCYAF (MBANOFSIGN.F)ANNING INTFAIONS 1201N( 115AOADWAY LOSM(AUS.CA"012 )2)2246WOTFL )23.224.WJGIA% YM' JOwNSONFNNCOM ,t (OD • ip N 0 N O � Efforts to Date Design Committee • Formed Feb 26, 2oo8 (Resolution zoo8 -i4). • Five Members: Larry Tucker (Chair and ex officio member); Andy Bowden, Licensed Landscape Architect; Rush Hill, Licensed Architect; Walt Richardson, Licensed Architect; Steve Sandland; Licensed Architect; and Linda Taylor, Licensed Architect. Members have each lived in NB for at least 27 years, know the city well, and have dedicated a significant amount of hours for the betterment of the city. More importantly, each is exceptionally competent. Committee's Initial Tasks Issue a Request for Qualifications (RFQ) to world class architects interested in participating in a design competition for the City Hall and Park Master Plan project; In consultation with the Ad Hoc Building Committee, develop recommendations for a detailed set of General Design Parameters to be used by the participating architects; Review the qualifications of architects who respond to the RFQ; Recommend to the City Council five architects to participate in the design competition; Review design concepts submitted by the selected architects, hold public meetings to receive public input on the design concepts; and Recommend an architect and design concept to the City Council. i Committee's Additional Tasks • Received questions and proposed answers to the RFQ; • • Helped edit the General Design Parameters (GDPs - these are the design constraints applicable to the City Hall and Park site); • Prepared a Judging Procedure and Criteria to judge the responses to the RFQ and the design competition itself; • Reviewed the 5o+ responses to the RFQ; • Narrowed the 5o+ down to 13; • Reviewed City staff's reference checks on the 13; • Short - listed five firms to the City Council: • Bohlin Cywinski Jackson • Gonzalez Goodale • • Johnson Fain • LPA • Rossetti • Worked on Q&A raised by the five design finalists prior to the submission of their designs, all in open session. committee's Additional Tasks (cont' d) NOTE: All Committee business was conducted during meetings open to the public. 0 • Held n meetings open to the public, with extensive public participation encouraged at each meeting. • Conducted an all day public hearing on Saturday, September 27, 2oo8 to learn about the five firms' designs. • Following the 9 -z7 meeting, held four public hearings to obtain public input regarding the five firms' concept plans. • Prepared a Final Report to the City Council which: • Ranks the designs; • Explains the Committee's reasons for selecting the design given the highest ranking; • Offers recommendations to the City Council relating to design and other issues as the Project moves forward; • Makes further recommendations applicable to any plans chosen by the City Council; and • Points out changes between the draft report and final report, to be issued November 25, 2008. Rankings RMFBCJ LPA Gonzales- Johnson- Rossetti Goodale Fain , Bowden 00 © ©© Hill © ©0 ©0 Richardson ©0 © ©0 Sandland ©0 © ©0 Taylor © © ©00 11 0 Recommendation The Committee recommended that the Council select • Bohlin Cywinski Jackson and its plan as the going - forward project. • BCJ's City Hall and Parking Concept • s r I y, k. wyJ I �r 4L f, 6fi 0000 0004 ir,0to •bf4' •40606 te, 6 r0f.0•tb•f•f0si♦ a•ras•sbsit••4►b4► r i i �` • !ii• St fE • ••0• ••iri 4000 *Ef• to 00f• •••! 0000 0000 •• ift• •r s• f4r�t ••bb •� ff•0f !4406 11 • BCJ's Park Concept TIN ........ ........... 4%Alk• ��� -jai✓" -ft-� _ VIO ............. ............. • Key Reasons for the BCJ Plan The aesthetics of the structures. 0 "The design captures an iconic image for the City of Newport Beach." A parking structure separate from Cit Hall (and located along the MacArthur Boulevard berm Likely will be less expensive to build than an entirely or mostly underground parking facility. Design minimizes grading and dirt export, minimizing cost; 0 Design creates an airy working nvironment for the City staff, significant natural light and direct sun flow. Design creates a people- friend,y courtyard between the parking structure and City Hall; Key Reasons for the BCJ Plan (cont'd) The roof covers a large amount of space, allowing building flexibility underneath. • Design capitalizes on inexpensive technologies for the roof /structural system. Good vehicular access from the library parking lot to the parking structure; Design uses sustainable design features... which should result in reduced operating costs; The landscaping along Avocado is a continuation of the • library landscape scheme and ties the sites together; and The Park design leaves most of the topography of the Park unchanged so that it is primarily a "natural park." 7P Additional Recommendations (for any plan the Council selects) Design Elements: • Maintain MacArthur berm; • Mitigate light and glare on the site; • Separate pedestrian and vehicular access ways and primary circulation elements; • Provide a floor plan that will easily accommodate future modifications to city functions; • Be logistically feasible, understanding how the duration of construction will affect the surrounding area; • Integrate the Library so as to develop a true civic center; • Provide for restrooms and easy parking for park visitors; • Haaitional Recommendations (for any plan the Council selects) Design Elements (cont'd): • Show strong connectivity between the North Park Parcel to the Central Park Parcel; • Consider a "cafe" or small coffee shop; ® Have a vehicular connection from City Hall parking to the Library's parking lot; Contain the Council Chambers and the multi - purpose community room in a single building; Create a direct link between the City offices and Council Chambers for staff and officials; LI Aaaitionai Kecommenaamns (for any plan the Council selects) Design Elements (cont'd): ® Design the Council Chambers and Community Room to act together as a single large community space; • Provide for useable contiguous outdoor space for community events; • Provide access to natural light from all staff workstations; • Continue landscape treatment from the Library olive groves along Avocado; 0 Screen roof - mounted antennas and dishes as required for City operations; and • Consider retaining the high point of the park's southernmost meadow area to maintain the oceanward view. Additional Recommendations (for any plan the Council selects) Design Team's Flexibility. Ensure that the Design • Team selected has demonstrable track record of good working relationships with clients, and meeting their wishes even if those wishes are not entirely consistent with the Design Team's vision. Staff Input. The City Council should review and consider the merits of the Report of the City Staff on • the constructability of each Plan presented and the opinions of staff as to the functionality of each Plan. Additional Recommendations (for any plan the Council selects) Phasing. If budget constraints impact the construction of the Council's preferred design, consider phasing the project to construct the building in Phase I and the park in Phase II. 3rd Party Cost Estimator. Get a 3rd party cost estimate for each of the designs deemed a feasible alternative design by the City Council. * NOTE: The cost information provided was rough and should be verified. • • In Conclusion Committee recommendation is BCJ... • With refinements suggested; and • Consistent with our additional recommendations. We thank: • The five firms for the effort and creativity which went into each concept plan; • The City Council for its support of our work; • The staff support (Dave K, Steve B, Shirley Oborny) • As Chairman, I strongly support the involvement of the design professionals of the City Hall and Park Design Committee in the next phase of project design. We look forward to continuing to work with the Council on this Project.