HomeMy WebLinkAboutM2009-0015Oct 02 02 10:27a BeIlPort Group
SEP -26-2002 THU 08.:39..AM CA LANDS COMM
STATE OF CALIFORNIA
CALIFORNIA STATE LANDS COMMISSION
1 OD tiowe AVenUe, Suite I 00 -South
Sacramento, CA 96825-e202
Mr. Sean M. Walsh
BellPort Group
301 Shipyard Way
Newport Beach, CA 92663
949-723-7782 p.2
FAX NO. 916 1324 P. 02
GRAY DAVIS,
PAUL [). THAYER, gx&cutive officer
(916) s74 -l000 FAX (916) 574-1810
Callforn,ft R@18y Se_lre pfam TDD phorls isoo-735-2922
fmm Voice Phono 1-800-735-2929
Contact Phone. (946) 574�0234
Contact FAX, (916)574-1324
September 23, 2002 File Ref: SD 2002-09-12.1
RE: Dredging Project at the Balboa Marina, 201 E. Coast Highway, Newport Beach
Dear Mr. Walsh:
This is in response to your recent request for a determination by the state Lands
commission (CSLC) whether it asserts a sovereign title interest in the property that your
project will occupy and whether it asserts that the project will intrude into an area that is
subject to the public easement in navigable waters.
The facts pertaining to your proposed project, as we understand them, are these',
You propose to dredge approximately 8000 cubic yards at the Balboa Marina,
vAth disposal of dredged material to be at United States Army Corps of Engineers site
LA -3.
The proposed dredging project will be located within Rancho San Joaquin,
landward of the adjudicated mean high tide line along the shore of Newport Bay as set
- Irvine CowanY- Superior Court Case Number 20436.
forth in orange County v. ThL ly asserts no claim that the project intrudes onto
Accordingly, the CSLC present
sovereign lands or that it would lie in an area that is subject to the public easement in
navigable waters. This conclusion is without prejudice to any future assertion of state
ownership or public rights, should circumstances change, or should additional
information come to our attention.
if you have any questions, please contact Jennifer Lucchesi at (916) 574-0234�
0 Lynch
Chief, Land Management Division
cc: Kavi Schwing, CCG
Oct 02 02 10:27a BellPort Group 949-1723-7782 P.1
0 affinow, left
AL., 1:$ 0 R T
E L L ry
Bayside Marina Bayshore Marina Balboa Marina - Villa Cove Marina
FAX
TO: Karl Schwing FROM: Sean M. Walsh
CO: CCC PAGES: 2 (including cover sheet)
FAX: 562-590-5OB4 DATE: October2,2002
RE: Permit Applications for Balboa Marina
cc: Tony Melum, Harbor Resources, City of Newport Beach
Hi Karl:
Thank you for your return call this morning. As we discussed, this has been a long process and
we're all very happy to be on the home stretch.
Attached is the letter from Robert Lynch at State Lands Commission, which along with the missing
application that was sent by Tony Melum, should be the last piece.
We want to thank you again for working with us on this project.
Regards,
A
PrlvacyDisclalmen, 777e Information contained In this facsimile message maybe confidential, proprietary andlor legallyptivIleged
information Intended only for the It,,& of the Individual or entity named above. If the reader of this message is not the intended
reciotent, you are hareby notified' that any copying, olissemination or d1stributlon of confldentlal, proprietary or privileged
information is strictly prohibited if you have received this communication In error please notIfy the sender by telephone
Immediately, and we will arrange for the return of thIs facsinvle Thank you
CALI FORNIA PDCREATION COMPANY
1137 Bayside Drive, Newport Beach, CA 92625-1706
949-721-0111 - fax: 949-721-0118 - www.greatslips.com
April 5, 2010
Mr. Chris Miller, Manager
Harbor Resources Division
City of Newport Beach
829 Harbor Island Drive
Newport Beach, CA 92660
S ',X 1.
biccl- Baiboa Nlaiina Dock & Dine Boat Slip Signage
Dear Mr. Miller:
We have completed the sign program update discussed at our January 28, 2010 meeting with you
and Assistant City Attorney Leonie Mulvihill. The purpose of the signage is to better assist the
boating public to find and gain access to our dock & dine boat slips at the marina. You
previously commented that while the dock & dine slips are marked, a boater entering the marina
for the first time might have difficulty locating them and additional signage would help alleviate
this problem. hi reviewing the signage issues, we reconsidered the location of the dock & dine
slips. As a result, we have located these slips directly below the bulkhead at 3 Thirty 3 restaurant
and closer to the up -ramp landside gate access adjacent to the Sol restaurant (see attached slip
location graphic).
Regarding the additional dock & dine signage, please see attached sign detail graphics. As you
will note, we have added two new pier cap signs #3.6 and # 3.8 that will be visible to boaters on
the main channel when entering the marina. We have also added three directional signs on dock
gangways # 3.3, # 3.5, and # 3.7 to assist way -finding back to the dock & dine slips from the
landsid e gate. Each dock and dine slip will be labeled "DOCK & DINE" on their whaler as
before.
The landside gate is a one-way gate so that a boater may gain access to the landside, but would
need a key to regain access to the docks. In my correspondence to you dated February 1, 2010, 1
explained the steps that we have taken to insure that members of the boating public can gain
access over our docks to the landside commercial uses at Balboa Marina. In particular I noted
our offer of a magnetic key card that boaters can obtain by coining to our office and signing up.
The key card allows anyone having the device to return to the docks through our security gate at
any time they wish.
In addition, we have a security guard present on Friday and Saturday nights from 5:30 p.m. to
11:30 p.m. and on Sunday nights from 4:00 p.m. until 10:00 p.m. The guard's responsibility is to
open the gate for those boaters who arrive at the marina without a key card and need to return to
BAYSHORE BAYSIDE VILLA COVE BALBOA BAIRISLAND
AIARTNA MARINTA MARINA AIAMNA MARINA
Mr. Chris Miller
April 5, 2010
Page 2
their dingy. We provide this service based on our observation of when the majority of visiting
boaters arrive and access the landside com mercial uses, primarily the restaurants adjacent to the
marina. A third step that we have taken to ensure access is to provide both the Sol and 3 Thirty 3
restaurants with several key cards so that their staff can assist any boater gain access back to the
docks when the guard is not present.
The dock & dine slips were added to the marina design to implement t -he approval in concept
recommended by the Harbor Commission at their February 14, 2007 meeting. However, you -
explained, at our January 28, 2010 meeting, and more recently, that the Harbor Commissioners
want unrestricted public access over our docks at the marina. We do not believe that is consistent
with the City's approval in concept and the action of the California Coastal Commission. We
providetthe followin' chronology of the Coastal Develo ment Permit, apprril.-,al process fror your
9 p
consideration.
Mitigated Negative Declaration
A Mitigated Negative Declaration (N4ND) was prepared for the reconstruction of Balboa Marina,
which included replacement of an existing 132 slip dock with a 102 slip dock which was
compliant with updated ADA and Department of Boating and Waterways standards. The marina
was described as a private use.
City of N=ort Beach Harbor Commission
At its February 14, 2007 meeting, the Harbor Resources Department recommended that an
Approval In Concept be granted for the reconstruction of Balboa Marina as outlined in the MND.
Commissioner Collins requested that the project follow the Harbor Element of the General Plan
and add public dinghy docks. A motion was made to accept the MND and issue an Approval In
Concept with the added requirement that a dinghy dock and access to the commercial areas from
the water be included in the project. As stated in the minutes for the February 14, 2007 action:
"Commissioner Corrough made the motion to accept the Mitigated Negative Declaration (MND)
prepared for the Balboa Marina reconstruction project and issue and Approval in Concept (AIC)
for the marina and find that the proiect is consistent with the City offNewport, Beach, existing and
proposed dock construction standards. The motion was not seconded and died. Commissioner
Lawrenz made the same motion, but added that the concept include a dinghy dock and access to
the commercial areas from the water. The motion was seconded and carried with all ayes."
California Coastal Commission Approval
On May 7, 2008, the California Coastal Commission granted Coastal Development Permit 5-07-
241, for a 105 slip layout (that included four "valet/temporary slips") subject to standard and
special conditions. The staff report for the project noted in the project description that: "The
existing facility is privately owned/operated and accessible to slip lessees and not open for
general public use." The report also states � "Public access to the bay is available from Coast
Mr. Chris Miller
April 5, 2010
Page 3
Highway. In addition, vertical access to- the bay is available on the bridge leading to Linda Isle
immediately east of the project site. Public access to the waterfront is available and the proposed
project would not impede such access. However, the subject site is a private marina facility
which leases boat slips to its members." The City of Newport Beach Approval In Concept that
was attached as an exhibit to the Coastal Commission staff report was augmented to show the
four "valet/temporary dock" spaces as required by the Harbor Commission in its February 14,
2007 recommendation for approval in concept.
We have followed the specific direction of the Harbor Commission for the approval in concept to
add dinghy slips to the marina. With our efforts to improve signage and ensure dock & dine
access through offering key cards to the public, a guard for peak use and providing key cards to
the restaurants, we believe that access will be even easier.
Further, I hope that the questions you and the City Attorney's office raised at our meeting are
addressed with this update on how our operational plan provides enhanced way -finding to our
dock & dine dingy tie-ups at Balboa Marina. Please do not hesitate to contact me directly at
(949) 721 -0111 if you have any comments or questions.
Sincerely,
eenrall'Manager
California Recreation Company
Attachments: Slip Location Graphic
Dock & Dine Directional Sign Graphics
cc: VMs. Leonie Mulvihill
4 Mr. Dan Miller
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71 - -
April 13, 2010
Row dej
Mr. Greg Sinks, General Manager
California Recreation Company
1137 Bayside Drive
Newport Beach, California 92625-1706
RE: Public Access at Balboa Marina
Dear Mr. Sinks:
CITY MANAGER'S OFFICE
Harbor Resources Division
This letter is in response to your correspondence dated February 1, 2010 and
April 5, 2010 regarding California Recreation Company's ("Cal Rec") efforts to
provide public access at the Balboa Marina. As you know, the City of Newport
Beach Harbor Commission's ("Commission") recommendation to approve the
Balboa Marina on February 14, 2007 included a requirement that Cal Rec
provide public dinghy docks and public access.
The City appreciates Cal Rec's initial efforts to satisfy the Commission's public
access requirement, which includes:
1 . Allowing the public to visit your offsite office ahead of time, and apply for a
magnetic key to use the Balboa Marina (assuming a deposit and
registration/insurance paperwork is provided).
2. Stationing a security guard at the Balboa Marina on Friday and Saturday
nights from 5:30 p.m. to 11:30 p.m., and on Sundays from 4:00 p.m. to
10:00 p.m. to assist boaters back onto the docks.
3. Providing Sol and 3 -Thirty -3 restaurants magnetic keys to assist boaters
to gain access to the docks.
4. Improving existing signage to direct boaters to the public dinghy docks.
As we conveyed to you at our January 28, 2010 meeting, the City is looking to
Cal Rec to provide public access to the docks during the hours when the security
guard is not present and when the restaurants are closed. You told us you would
look into this issue further and explore ideas to enhance public access at the
Balboa Marina. But to date we have not received your revised public access
plan.
Please understand that public access at Balboa Marina is a priority for the City,
and formed the basis for the Commission's original recommendation to approve
829 Harbor Island Drive, Newport Beach, CA 92660
PH: (949) 644-3034 FX (949) 723-0589 e -,vww.newportbeachca.gov/harborresources
Mr. Greg Sinks, General Manager
California Recreation Company
April 13, 2010
the Balboa Marina on February 14, 2007. The City desires for Cal Rec to draft a
public access plan that will provide meaningful public access, rather than the
limited access currently provided.
Please provide the City with Cal Rec's revised public access plan by Friday, April
30, 2010. Failure to submit a revised public access plan that addresses the
City's concerns may result in the referral of this matter to the Commission and
City Council for review of Cal Rec's pier permit at the Balboa Marina.
Please contact me at (949) 644-3043 if you have any questions regarding the
information contained in this letter. Thank you for your anticipated cooperation,
we look forward to receiving your revised public access plan.
Sincerely,
Chris Miller
Harbor Resources Manager
cc: Leonie Mulvihill, Acting City Attorney
PO
-qJ1 FO
December 31, 2008
California Coastal Commission
Attn: Karl Schwing
200 Oceangate, STE 1000
Long Beach, CA 90802-4416
Army Corps of Engineers
Attn: Dan Swenson
915 Wilshire Blvd.
Los Angeles, CA 90017
140161,11 POW I DVA';ZORR'li 1 001 DY'AW *9'1
Santa Ana Regional Water Quality Control Board
Attn: Adam Fischer
3737 Main Street, STE 500
Riverside, CA 92501-3348
Subject: Regional General Permit No. 54 — Dredging Application Submittal,
201 East Coast Highway, Newport Beach, California
This application is for a supplemental dredging project at Balboa Marina that was previously
approved by your agency. The approved dredge project at 201 East Coast Highway is currently
underway and is estimated for completion in late January. Please expedite this application so as
to allow the subject project to immediately follow in late January without re -mobilization of
dredge equipment or delay.
Your immediate attention is greatly appreciated. Please contact me with any comments or
questions.
Yours truly,
Cfiris Wiffer
Harbor Resources Manager
emiller@city.newpoi-t-beach.ca.us
(949) 644-3043
829 Harbor Island Drive, Newport Beach, CA 92660
PH: (949) 644-3034 FX: (949) 723-0589 e Website: www.newport-beach.ca.us/HBR/
Applicant Name
Project Site Address
HARBOR RESOURCES DIVISION
829 Harbor Island Dfive
Newport Beach, CA 92660
(949) 718-1844 Fax (949) 723-0589
www.newport-beach.ca.us/hbr
M
Applicant address, phone number
Agent & Contractor name, address, phone number (if applicable)
Project site address
Assessor's parcel number
Dredge site latitude and longitude
Disposal site:
Beach disposal latitude and longitude
Ocean disposal LA -3
Purpose and final goal of dredging
Method of dredging. Vessel and equipment description.
Vessel(s) Captain, Dredging & Disposal Inspector
Cubic yards dredged and disposed ( must be less than 1,000 cy.)
Area impacted (in acres)
El If beach disposal, linear feet of affected beach area
Dredging and Disposal Operations Schedule
Scaled drawings (plan view and cross sectional view)
Site address
Location within the Harbor
829 Harbor Island Drive, Newport Beach, CA 92660
PH: (949) 644-3034 FX: (949) 723-0589 sWebsite: www.newport-beach.ca.us/HBR/
Dredging Application
City Checklist
Page 2
Location of existing dock structures
Location of existing dock structures on adjacent properties
Location of Bulkhead, Pierhead and Project Lines
Dredge depth (limited to -7 MLLW with a V allowable overdraft)
Photo(s) of dredge and disposal areas at low tide (including 30' buffer area)
Eelgrass Survey
Survey for presence of eelgrass within 30' of the entire project area
El Yes No Eelgrass within 15' of entire project area. Project not
permitted.
El If ocean disposal and eelgrass is located greater than 15' from the project
area, then no further monitoring required
El If beach disposal and eelgrass is not located within 30' of the project
area, then no further monitoring is required
El If beach disposal and eelgrass is located between 15' and 30' from the
project area, then pre- and post-monitoning is required
E] Pre -monitoring survey attached
El Post -monitoring survey attached. Date submitted:
DU Eelgrass Stamp
Caulerpa Survey
X Survey for Caulerpa within 30' of the entire project area
Grain Size Analysis
(1) sample per 1/4 acre and / or at least (1) sample at dredge site and (1) sample at
beach disposal site (if applicable)
Beach disposal:
El Sample(s) must be at least 80% sand, or;
El At least 75% sand and within 10% of the sand content of the receiver beach
Ocean Disposal:
M Sample(s) must be less than 80% sand
Project is over (check one box):
M City Tidelands
Dredging Application
City Checklist
Page 3
0 County Tidelands (State Lands Commission Dredge Lease Approval)
If applicable, check one box:
M The Irvine Company owner's approved area
El Bay Island owner's approved area
0 Dover Shores owner's approved area
El Linda Isle owner's approved area
Check made payable to The City of Newport Beach
Check for $60 made payable to Santa Ana Regional Water Quality Control Board
Signed application
Neighbor notification
POST DREDGING
Post Dredging Report. Date submitted:
Post eelgrass monitoring (if applicable)
01/09/2009 09:08 FAX US ARMY CORPS. Z 002/007
-1-
DEPARTMENT OF THE ARMY
LOS ANGELES DISTRICT, CORPS OF ENGINEERS
P.0 BOX 532711
LOS ANGELES, CALIFORNIA 90053-2325
January 9, 2009
RULY TO
ATMIU 10.N 0�!
Office of the Cl -def
Regulatory Division
Mr. Dean Kirk
The Irvine Company
C/O! Lisa Walters
City of Newport Beach Harbor Resources Division
829 Harbor Island Drive
Newport Beach, California 92660
Dear Mr. Kirk.,
This is in reply to your application (File No, SPL -2009-00
31, 2008, for a Department of the Army Permit to discharge fill
association with maintenance dredging at 201 East Coast High
site for the Ruben E, Lee. The proposed work would take place
Coast Highway in Newport Bay within the City of Newport B(
California,
-FBV) dated December
:o waters of the U.S., in
�, the former mooring
7ward of 201 East
i, Orange County,
Based on the irtformation you have provided, the Corps of rigineers has
determined that your proposed activity complies with the terms ind conditions of
Regional General Permit (RGP) No. 54 -Maintenance Dredging, B ?ach Nourishment, and
Dock Maintenance.
As long as you comply with the general permit conditions f RGP No, 54 -
Maintenance Dredging, Beach Nourishment and Dock Maintenance, an individual
permit is riot required.
01/08/2008 09:OB FAX US ARMY CORPS.
-2-
Specifically, you are authorized to:
1. Dredge up to 1,000 cubic yards of material over a 0. 18 ac�
2. Dredgi: material with a mechanical clamshell dredge "D13
3. Transport and discharge dredged material at ocean dispos
A general permit does not grant any property rights or exc
it does not authorize any injury to the property or rights of other
interference with any existing or proposed Federal project. Furth
obviate the need to obtain other Federal, State, or local authoriza
1@ 002/007
area;
"; and
site LA -3.
isive privileges. Also,
or authorize
rmore, it does not
ons required by law.
Thank you for participating in our regulatory program. If ou have any questions,
please contact Forrest Vanderbilt at 213.452,3289 or via e-mail at
Forrest. B.Vanderbilt@usace. army mil.
Please be advised that you can now comment on your exy
Regulatory Division by accessing the Corps web -based customer
httl2://12er2.nwp.iisace,army.rnil/survey.h,tm ,
Sin;erely,
Mark Durhai
Chief, South
Regulatory E
Enclosure
with
form at,
Branch
Id
. -97.
4T
01/09/2003 00:08 FAX
US ARKY CORPS.
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LOS ANGELES DISTRICT
U.S. ARMY CORPS OF ENGINEERS
REGULATORY DIVISION
915 Wilshire Blvd., Los Angeles, CA. 90017-3401
P.O. Box 532711 Los Angeles, CA. 90053-2325,
(213) 452-3425 FAX- (213) 452-4196
FACSIMILE TRANSMITTAL
MOM
Date: January 9, 2009
To :Lisa WalTers; Harbor Resources Division
Fax # 949 -723 -05 8 9
To:
Faxft:
From; Forrest Vanderbilt
F,e; RGP 54: 201 East Coast Highway
File #,, 2009-30-FBV
Comments;
Mark Durham ....
........ (0416)
Cori Farrar.
(x3296)
Yvette Cardenas
..............
(0418)
Dan Swenson .................
(x3414)
Faj,rest Vanderbilt
............
(x3289)
Francine M. N
varez .........
(X3409
Gerry Salas .................
(0417)
Jae Chun& .....................
(0292)
Jason Loinbert ...........
--(x3361)
Valisa Nez ......
..............
(0419)
Ken Wong .....................
(x3290)
Mark Cohen ........
----(0413)
Shanrion Panku
atz.. . .........
(x3412)
Stephanie Hall
...............
(x3 410)
................
(0408)
Phuong Trinh .
...............
(x3372)
Sophia Huynh
........
(0357)
Swidra villane
a
Signature: page(s) to follow
Should you, have any difficulty in receiving all pages, please contact our offict either directly to the sender
above, or the main office number at (213) 452-3421,
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W 13 v. 6-22-07
HARBOR RESOURCES DIVISION
829 Harbor Island Drive
Newport Beach, CA 92660
4�
(949) 644-3044 Fax (949) 723-0589
www.newpoi1-beacb.ca.us/hbr
DREDGING APPLICATION
Regional General Pennit 54
CDP 5-06-117 & CC -031-06
Corps File No. 200501233 -DPS
Water Board ConsistencyPermit
Valid Until October 4, 2011
Applicant Name, Address, Phone Number:
Mr. Dean Kirk, The Irvine Company - (949) 720-2878
550 Newport Center Drive
Newport Beach, California 92660
Agent & Contractor Name, Address, Phone Number (if applicable):
Dr. Joshua Burnam, Anchor Environmental - (9491347-2787
28202 Cabot, Suite 425
Laguna Niguel, California 92677
Project Site Address: Assessor's Parcel Number:
1 201 East Coast Highway, Newport Beach, California See Attachment A
Dredge Site: Latitude 133 36'55.91 Longitude 1 117 5416.08
Disposal Site
F— Beach Disposal: Latitude Longitude
R Ocean Disposal (LA -3): Latitude 33'31'00" Longitude 117'53'30".
Purpose and Final Goal of Dredging (Effect on Bulkhead and Beaches):
Eemlof shoal at former Ruben Lee site. The dredging will not affect any bulkhead or beach. The purpose
v
is to
facilitate safe navigation at Balboa Marina.
Regional General Permit 54
Dredging Application
Page 2
Method of Dredging (Hydraulic, Clamshell, Tractor etc ... ), Vessel and Equipment Description:
Mechanical Clamshell dredge "DB -3" - See Attachment D
Vessel(s) Captain Brad Shoffitt - Dutra Dredging
F I
Dredging Operations Inspector lAndrew Hunt - Dutra Dredging I
Disposal Operations Inspector lRay Waters - Dutra Dredging . I
Cubic Yards Dredged and Disposed (Must be less than 1,000 cy. total):
1110-00
Area Impacted (in acres): If Beach Disposal Is Used, Linear Feet of Affected Beach Area:
Acres Linear Feet
Estimate of Quantity of Material Dredged From or Disposed Onto the Site From Previous Activities:
FNone
Dredging and Disposal Operations Schedule:
lEst. 2-3 days of dredging during 1 st week of February, 2009
Please submit the following on a separate page. Use the check boxes to ensure a complete application is
filed. Incomplete applications will not be processed.
FX- Scaled drawings of the project and disposal areas (plan view and cross sectional view)
IX7 Site address
Fx Location within the Harbor
FX' Location and physical dimensions of existing structures on subject site (e.g. float, pier,
gangway, pile and bulkhead)
R Location and physical dimensions of existing structures on adjacentproperties
R Location of Bulkhead, Pierhead and Project Lines
Fx- Dredge depth (limited to -7 MLLW with a P allowable overdraft)
rx- Photo(s) of entire dredge and disposal areas at low tide (including 30'buffer area),
with emphasis on eelgrass
Regional General Permit 54
Dredging Application
Page 3
R Eelgrass Survey - Completed by a Certified Eelgrass Diver
A. Survey for the presence of eelgrass within 30' of the entire project area (dredge
and disposal site)
B. If eelgrass is within 15' of project area, then the project will not be permitted.
(An Individual Permit must be sought.)
C. If ocean disposal:
• Any eelgrass must be located greater than 15' from project area
• No further eelgrass monitoring is required
D. If beach disposal:
• If eelgrass is not present within 30' of the project area, then no further
monitoring is required
• If eelgrass is present between 15'to 30' of the disposal project area, then
pre- and post -monitoring is required. See Harbor Resources website for pre -
and post -monitoring requirements -vvww.newport-beach.ca.us/hbr
F Caulerpa Survey - Completed by a Certified Caulerpa Diver
A. Survey for Caulerpa. within 30'of the project area (dredge and disposal site)
R Grain Size Analysis
A. (1) sample per 1/4acre and / or at least (1) sample at dredge site and (1) sample at
beach disposal site (if applicable)
B. If beach disposal, sample(s) must be at least 80% sand
1X_ Project is over (check one box):.
1X_ City Tidelands
F County Tidelands (State Lands Commission. Dredge Lease Approval)
rx— If applicable, check one box:
FX_ The Irvine Company owner's approved area
F Bay Island owner's approved area
F Dover Shores owner's approved area
F Linda Isle owner's approved area
FX_ Check made payable to The City of Newport Beach (See Harbor Resources website for
appropriate fees)
FX_ Check for $60 made payable to Santa Ana Regional Water Quality Control Board
Project areas at the Rhine Channel, Newport Island, Promontory Bay, the West Lido Channel orftom
within 1,000 feet in any direction from the 15 th Street public pier are not eligible for dredging under
this Permit.
Regional General Permit 54
Dredging Application
Page 4
1. JJoshua Burnam, Anchor Environmental ' (Applicant / Agent), hereby certify that the
information on this application is accurate and complete. I also certify that I have read the California
Coastal Commission Permit 5-06-117 & Federal Consistency Certification CC -031-06, the Army Corps
of Engineers Regional General Permit No. 54 (File No. 200501233 -DPS) and the California Regional
Water Quality Control Board General Certification for Regional General Permit No. 54 for maintenance
dredging in Newport Harbor and that I will comply with all of the conditions in.those permits. I also
certify that by acceptance of this Permit, the applicant acknowledges and agrees that the site may be
subject to hazards from waves and erosion.
I will further hold the City of Newport Beach harmless from and indemnify the City against any claim for
damages arising out of the exercise of these permits. In addition, I shall reimburse the City of Newport
Beach for all attorney's fees and other costs expended by them in defending any claim, lawsuit, or
judgment arising out of the activities of the applicant carried on under the authority of such Permit.
I understand that any work authorized must be completed by October 4, 2011 after which a new
authorization is required. I also understand that the applicant will submit a Post Dredging Completion
Report no later than 30 calendar days after completion of each dredging project. All work scheduled to
be completed before 7:00 AM or after 6:00 PM (Monday - Saturday) or on Sundays or holidays must be
approved by Harbor Resources.
Per the RGP Permit, all dredging applications will be processed by the various agencies through monthly
batch submittals sent to them by Harbor Resources. Therefore, all dredging applications must be
submitted to and received by Harbor Resources by the I "Monday of evm month. Applications
submitted prior to this deadline are encouraged and appreciated.
)'I- I �i)p -?
Applicant anU / or Agent
ANCHOR
7,0�a�— ENVIRONMENTAL CA, L.P.
December 29, 2008
070483-01:
Mr. Chris Miller
City of Newport Beach, Harbor Resources Division
829 Harbor Island Drive
Newport Beach, California 92660
Anchor Environmental CA, L.P.
28202 Cabot Road, Suite 425
Laguna Niguel, California 92677
Phone 949.347.2780
Fax 949.347.2781
Re: Request for Maintenance Dredging Under Regional General Permit 54 for Balboa Marina
Dear Mr. Miller:
On behalf of The Irvine Company (TIC), Anchor Environmental CA, L.P. (Anchor), is
respectfully requesting approval under the City of Newport BeacWs (City's) Regional General
Permit (RGP) 54 for maintenance dredging of up to 1,000 cubic yards (cy) of material adjacent to
the Balboa Marina project area (Figure 1). Specifically, TIC and its contractors have identified
an area of shoaling near the former Ruben E. Lee site, which is outside of the current project area,
that represents an operational constraint to the marina. Issuance of a RGP 54 approval for
removal of this shoal will help immediately reduce this concern and allow TIC to both ensure
maximum safe use of the new marina and take advantage of our contractor who is already
mobilized on site.
TIC is hereby submitting this request pursuant to RGP 54 and with the Applicant's agreement
to abide by all conditions of the permits. All other required resource agency approvals are in
hand for the related Balboa Marina dock replacement project, and the removal of the shoaled
material under RGP 54 has independent utility from this project. TIC is currently replacing the
docks at Balboa Marina, and dredging of the shoal is an independent project and unrelated to
the dock replacement, which TIC would be doing with or without the dock replacement. Below
is information required and/or requested by the agencies to facilitate issuance of an approval.
Mr. Chris Miller
December 29, 2008
Paee 2
IDENTIFICATION OF THE APPLICANT, AGENT, AND SITE OWNERSHIP
The shoal to be removed is located at Balboa Marina, 201 East Coast Highway in Newport
Beach, California. TIC is the Owner of the property and has the ability to perform the subject
dredging. Evidence of ownership of the site and the ability to perform -the dredging as
requested under Conditions 1(c)v and 1(c)vi of the California Coastal Commission (CCC)
permit is included in Attachment A.
The Applicant is:
Mr. Dean Kirk
The Irvine Company
550 Newport Center Drive
Newport Beach, California 92660
Anchor is the Apphcanf s Agent in this matter. The Agent' s contact information is:
Dr. Joshua Burnam
Anchor Environmental CA, L.P.
28202 Cabot Road, Suite 425
Laguna Niguel, California 92677
VOLUME AND AREA TO BE DREDGED
The location of the shoal and area to be dredged is depicted on Figure 1. The volume of this
removal is 1,000 cy and covers approximately 8,000 square feet. The design depth is of the cut
-6 mean lower low water (MLLW) plus I foot of additional overdepth. . Photographs are
included as Figure 2.
EELGRASS
The footprint of Balboa Marina was surveyed for eelgrass and Caulerpa taxifolia in October of
2008. No eelgrass or Caulerpa taxifolia were found in this area of the shoal. A letter from
Mr. Rick Ware, of Coastal Resources Management, indicating that no eelgrass or Caulerpa
taxifolia were found in this area is included as Attachment B.
Mr. Chris lvhtler
December 29, 2008
CHARACTERIZATION OF THE MATERIAL
The area to be dredged is approved under RGP 54 (RGP 54 station 2-1 is in fact located within a
few hundred feet of the shoal). In regards to potential beach placement, the entire Balboa
Marina footprint was extensively sampled in May of 2007 for the Balboa Marina dock
replacement project. The material was comprised of less than 50 percent sands and determined
by the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency
(USEPA) to be chemically suitable for disposal at LA -3 but unsuitable for beach placement.
Therefore, the Applicant would dispose of the shoaled material at the approved LA -3 ocean
disposal site.
DREDGING OPERATIONS, WATER QUALITY MONITORING, AND BEST
MANAGEMENT PRACTICES
Dredging would be conducted in Upper Newport Bay. The Applicant is currently utilizing a
mechanical dredge and dump scows for the dredging at Balboa Marina. The Applicant is
monitoring water quality during dredging (including monitoring for turbidity, dissolved
oxygen [DO], and pH) as required under the 401 Water Quality Certification issued for the
Balboa Marina dock replacement project (Attachment C), The water quality monitoring
provisions for RGP 54 are equivalent and satisfied by continued implementation of this
program. In addition, the Applicant is utilizing the following best management practices
(BMPs):
• Encompassing the dredge and disposal scows in a continuous floating silt curtain
• Using debris separation during dredging
• Inspecting dredged material disposal scows to ensure proper loading and no leakage
during transport
• Conducting daily site inspections (completed by the Construction Manager)
• Conducted a Contractor Education Program
In addition, the Applicant has received approval for their Dredging and Disposal Operations
Plan (Attachment D) for Balboa Marina and received Notice to Proceed with dredging. The
Applicant will continue to follow all the procedures set forth in the Dredging and Disposal
Operations Plan.
Mr. Chris Miller
December 29, 2008
Given the fact that dredging has begun at Balboa Marina, we respectfully request the City to
certify that our request is consistent with RGP 54 and transmit that certification and our request
for Notice to Proceed to the USACE as soon as possible. We are obviously interested in
removing this shoal as soon as feasible in order to maximize the use of our contractor already
on site.
Please do not hesitate to contact me with questions at (818) 378-4635 or by email at
jbumam@anchorenv.com.
Sincerely,
Joshua Bumam, MPH, D.Env.
Anchor Environmental CA, L.P.
CC: Mr. Greg Sinks, TIC
Mr. Dean Kirk, TIC
FIGURES
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EVIDENCE OF SITE OWNERSHIP
AND ABILITY TO PERFORM DREDGING
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ATTACHMENT B
COASTAL RESOURCES MANAGEMENT LETTER
Ms. Jennifer Pettis
Anchor Environmental LC
28202 Cabot Road, Suite 425�
Laguna Niguel, California 92677
November 20, 2008
Re: Potential dredging effects on eelgrass and invasive algae near the previous site
of the Newport Harbor Nautical Museum
Dear Ms. Pettis:
In regards to your request for additional information re: the potential effects of additional
dredging that might be required near the previous site of the Newport Beach Nautical Museum (at
the northwest comer of the Balboa Marina), it is highly unlikely that eelgrass (Zostera marina),
or invasive algae (Caulerpa taxifolia) is present at that site, based upon the results of previous
surveys conducted at the project site by CRM in 2008, 2007, and 2006.
Neither of these species was present during previous surveys conducted at the project site by
Coastal Resources Management, Inc. in 2008 for the Balboa Marina Pre -Construction Eelgrass
Survey; in 2007 for the City of Newport Beach Baywide eelgrass survey project (City of Newport
Beach Website, 2008; CRM in progress), or in a site-specific survey conducted by Coastal
Resources Management, Inc in October 2006, for the removal of Nautical Museum from the site
in 2006.
Therefore, I would not anticipate any impacts to eelgrass bed resources or Caulerpa invasive
algae from any additional dredging that might be required at the project site.
Please call me if you have any questions.
Kindest regards,
COASTAL RESOURCES MANAGEMENT, INC.
Rick Ware
President/Senior Marine Biologist
Coastal Resources Management, Inc. PMB 327, 3334 E. Coast Highway, Corona del Mar, CA 92625
(949) 412-9446 (949) 675-2970 (fax) email rware.cnn@earthlink.net
Sources:
Coastal Resources Management, Inc. 2006. Eelgrass (Zostera marina) and Invasive Algae
Survey Reporting Forms. Newport Harbor Nautical Museum 151 East Coast Highway,
Newport Beach, CA. (Newport Bay). Survey Date: October l2th, 2006. Prepared for:
Marshall Steele, Newport Harbor Nautical Museum
Coastal Resources Management, Inc. 2008. Caulerpa taxifolia Survey Reporting Form and Pre -
Construction Eelgrass Survey Impact Analysis. Balboa Marina Renovation Project.
Prepared for: The Irvine Company, 550 Newport Center Drive, Newport Beach, CA
92660. Survey date: September 15th, 2008.
Coastal Resources Management, Inc. (in progress). Bay -wide Eelgrass (Zostera marina)
Distribution, Abundance, and Biology. Prepared for the City of Newport Beach Harbor
Resources Department. Results of surveys conducted between July 2006 and August
2008. (Maps are present on the City of Newport Beach Internet Website).
Coastal Resources Management, Inc. PMB 327,3334 E. Coast Highway, Corona del Mar, CA 92625
(949) 412-9446 (949) 675-2970 (fax) email rware.cnn@earthlink.net
DREDGED MATERIAL EVALUATION FOR THE BALBOA MARINA
DOCK REPLACEMENT PROJECT
NOVEMBER 2007
PREPARED FOR:
THE IRVINE COMPANY
NEWPORT BEACH, CALIFORNIA
N: Isitv F -E L �D S
Wl
Az.
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A
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Dredged Materia! Evaluation for Me Balboa Marina Dock Replacemie,,7tProject
Figure 2-2. Existing Bathymetry with Proposed Sample Areas and Station Locations.
7
440
Dred-Iged Material Evaluation for t1?e Balbc)a Marina Dock Replacernent Project
3.2 PHYSICAL AND CHEMICAL ANALYSES OF SEDIMENT
Physical characterizations of the collected sediments including grain size determination,
percent solids, and total organic carbon (TOC) content were performed on subsamples
from each of the individual stations, the reference area samples, and the four composite
samples. Chemical analyses for inorganic metals, organotins, pesticides, PCB aroclors, and
PAHs were conducted on the four composite samples and the two reference area samples.
Quality assurance review of the analyses was performed by NewFields and is included in
this report as Appendix A. Laboratory reports can be found in Appendix C.
All samples were received, preserved, and analyzed within acceptable holding times. With
a few exceptions discussed where applicable, all QA/QC criteria were met.
3.2.1 Physical Characteristics
Physical characteristics of the composite and reference area samples are shown in Table
3-2; data for the individual station samples, are included in Appendix C. Quality control
criteria were met for these analyses. The sediments in the project area are dominated by
silts and clays with gravel and sand (�-62.5lam) only accounting for about 12 to 15% of the
composite samples (Table 3-2); the reference areas are made up of coarser material with
the sand fraction comprising 38 and 89% of the sample for LA -3 and LA -2, respectively.
Sediment grain size in the individual stations was consistently dominated by fine -gained
silt. With the exception of Stations 19 and 20, sediment grain size was consistent across
the project area. Percent fines in Stations 19 and 20 were 64% and 74%, respectively.
TOC content was between 0.95 and 1.4% in the composite samples, similar to that in
sediment from LA -3 Reference. With the exception of Stations 8 (0.64%) and 16 (2.0%),
TOC content was consistent across the project area, ranging from 0.82% to 1.29%
Table 3-2. Physical Characteristics of Sediment, Balboa Marina
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om si es.-:
e
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',E mtomp'�.
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IL4 f
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0.6 1.2
0.1
0.1
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13.6 10.4
15.8
88.8
38.6
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45.0
44.0 44.7
40.9
6.4
45.3
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42.5
41.8 43.7
43.2
4.7
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0.95
1.18 1.40
1.04
0.33
1.64
Percent Solids
48.9
47.8 43.8
44.2
70.0
44.0
3.2.2 Inorganic Metals
Composite and reference area samples were analyzed for ten metals (Table 3-3). Quality
control measures were met for these analyses, with the exception of reporting levels for
several of the metals; however, all samples contained detectable quantities for those
metals. The achieved reporting limit for silver was below the effects range -low value for
biological effects. The selenium reporting limit was similar to those used for previous
projects in Newport Bay.
LDS
.. . ......... ... ......... . ............. ... .
0
11HE IRVINIE COMPANY
March 22, 2006
California Coastal Conitnission
200 Oceangate, Suite 1000
Long Beach, CA 90802
Attention: Karl Schwing
Subject- Linda Isle Dredging Froje'et
Newport Beach, California
To Whom It May Concern:
The Irvine Company LLC ("TIC') is.the fee owner of much of the land under the private
waterway surrounding Linda Isle on the north and west sides in Newport Harbor. More
specifically, based on the Orange County Assessor's maps, TIC owns the land between the
bulkhead line and the center,of the channel adjacent to Lots 1, 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15,
16, 18 of Tract 4003; between the bulkhead line and the pier head line adjacent to Lot 8 8 of Tract
40.03 (westerly,jim only);,beNmen.the -bulkhead line and the other si . de of the channel adjacent to
Lots 90' . 91,92, 0, 9 1 5, - 9 7,- . 98 :., 10 1 1 1 0 4, 106 and 107 of Tract No. 4003; and between
the bulkhead line and the center of the channel adjacent to Lots 2, 3 12, 14 16 and 18 of Tract
No. 328�.
TIC, as landowner, hereby.consents to the dredging of silt in the channel adjacent to the lots
described above under the City of Newport Beach's Regional.,Gencral Permit No. 54, through the
endof the ten,n of such permit in 2011. This letter is for the purpose.of giving consent only; the
dredging is being performed by others and TIC shall have no responsibility or liability in
connection with such work.
Very truly yours,
550 Newport Center brive, P.O. Box 6370, Newport B6ach, California 92658-6370 * (949) 720-2000
ATTACHMENT C
401 WATER QUALITY CERTIFICATION
<LN"i
i�J
Linda S. Adams
Secresaryfor
EnWrommental Prmcfion
Caffornia Regional Water Quality Control Board
Santa Ana Region
January 4, 2007
3737 Main Street, Suite 500, Riverside, Cidifomia 92501-3348
Phone (951) 782-4130 , FAX (951) 791-6288 - MD (951) 782-3221 Arnold Schwarzenegger
wwwwaterlbow&cigov/sanuiana Gavemor
scot Scialpi
The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
CLEAN WATER ACT SECTION 401 WATER QUALITY STANDARDS
CERTIFICATION FOR THE BALBOA MARINA DOCK REPLACEMENT PROJECT,
CITY OF NEWPORT BEACH (ACOE REFERENCE NO. NOT AVAILABLE)
Dear Mr. Scialpi:
On October 26, 2007, we received an application for Clean Water Act Section 401
Water Quality Standards Certification (Certification) for the proposed rqplacement of the
Balboa Marina docks in the City of Newport Beach. On November 25, 2007, your
application was deemed complete. This letter responds to your request for certification
that the proposed project, described in your application and summarized below, will
comply with State water quality standards outlined in the Water Quality Control Plan for
the Santa Ana River Basin (1995) and subsequent Basin Plan amendments:
Project Description:
Replacement of an existing dock system with a new 20,931 -
square foot dock with 105 boat slips ranging from 20 to 58
feet in length and installation of tieback anchors behind the
existing seawall. The new dock'system will include the
installation of a new sewage pump -out station, new lighting,
fire fighting facilities, and electrical power, water supply, and
communication connections. Approximately 36,000 cubic
yards of sediment below the new dock system will be
excavated for anticipated off -shore disposal at LA -3. The
project is located between Pacific Coast Highway and Lido
Island within Sections 26 and 27 of Township 6 South,
Range 10 West, of the U.S. Geological Survey Newport
Beach, Calffibmis, 7.5 -minute topographic quadrangle map
(33.6157 degrees NAI 17.9032 degrees W).
Receiving water:
Lower Newport Bay
Fill area:
2.74 acres of temporary impact to a marine channel.
Dredge/Fill volume:
36,000 cubic yards
CaRfornia Environmental PMecdon Agency
ro R-yded Paxr
The Irvine Company -2- January 4, 2007
Federal permit:
Rivers and Harbors Act Section 10
You have proposed,to mitigate water quality impacts as described in your Certification
application. The proposed mitigation is summarized below:
Onsite Water Quality Standards Mitigation Proposed:
• A sewage pump -out facility will be provided for use by marina tenants.
• Trench drains will be installed to intercept storm water runoff from the parking lot
areas and convey runoff into storm drain inlet filters. Five new storm drain inlet
filters will be added to remove pollutants from storm water runoff from the parking
lot areas.
• Adequate trash containment facilities will be provided for marina tenants and
visitors.
• The Irvine Company will participate in the "Clean Marinas California Program".
• A program will be implemented to inform visitors and tenants of best
management practices (BMPs) to prevent the discharge of pollutants into the
marina. The program will include installation of educational signage and
distribution of water quality protection materials.
• Additional site-specific BMPs are specified in the site's Water Quality
Management Plan (WQMP) and will be specified in the Storm Water Pollution
Prevention Plan (SWPPP).
• 410.7 square feet of selgrass beds will be excavated in the project area. 492.8
square feet of eelgrass beds will be created in an 8 -foot zone along the marina
bulkhead. Creation of suitable area will involve placing dredged material in the
mitigation zone to raise the sea floor to an appropriate depth. The creation effort
will. be completed according to the National Marine Fisheries Service's Southern
California Eelgrass Mitigation Policy.
Offsite Water Quality Standards Mitigation Proposed:
9 No offske water quality standards mitigation is proposed.
Should the proposed project impact state- or federally -listed endangered species or
their habitat, implementation of measures identified in consultation with U.S. Fish and
Wildlife Service and the California Department of Fish and Game will ensure those
impacts are mitigated to an acceptable level. Appropriate Best Management Practices
will be implemented to reduce construction -related impacts to Waters of the State. This
project is over one acre. Therefore, coverage under the State Water Resources Control
Board's General Permit for Storm Water Discharges Associated with Construction
Activity, Water Quality Order 99-08 DWQ, is required, as is development of a Storm
Water Pollution Prevention Plan (SWPPP), to control the discharge of pollutants from
the project site.
California Environntental Protection Agency
co _ReqmkdPWr
The Irvine Company -3- January 4, 2007
You have applied for a federal permit from the U.S. Army Corps of Engineers in
compliance with Section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act. You have applied for a Coastal Development Permit from the California
Coastal Commission. Pursuant to the California Environmental Quality Act (CEQA), the
City of Newport Beach adopted a Mitigated Negative Declaration (MND) on February
14, 2007. The Executive Officer has considered the City's MND in the issuance of this
Certification.
This 401 Cerdfication is contingent upon the execution of the following
conditions:
Using generally accepted protocols, the discharger must survey for
Caulerpa taxilblia, an invasive marine seaweed, to help locate and prevent
its spread. If Caulerpa taxifolia is found prior to or during implementation of
the project, the applicant must not begin or continue at that location until
authorized by Regional Board staff. If the invasive seaweed is discovered,
it is not to be disturbed, and the Regional. Board must be notified within 48 -
hours of the location and date of the discovery. In addition, any sightings
of Cauletpe taxifolia should be reported to the California Department of
Fish and Game (William Paznokas at (858) 467-4218
(wDaznokas(cb-dfci.ca.g ) or the National Marine Fisheries Service (Robert
Hoffman at (562) 980-4043 (bob. hoffmanO-noaa.goy)) within 24 -hours of
discovery. Further information regarding Caulerpa taxifoli6 sightings, can be
obtained at www.sccat.net. Should no Cauletpa be observed during the
project, the applicant must notify the Regional Board of this fact when all
construction has been completed. Please contact Wanda Cross at (951)
782-4468 concerning issues related to Caulerpa taxifolia.
2. Regional Board staff and other authorized representatives must be
allowed:
a. Entry upon premises where storm water treatment facilities are located,
or where records are kept under the requirements of this Certification
and applicable waste discharge requirements;
b. Access to copy any records that are kept under the requirements of this
Certification and applicable waste discharge requirements;
c. To, inspect any facility, equipment (including monitoring and control
equipment), practices, or operations related to the treatment of storm
water runoff from the project site; and
d. To photograph, sample and monitor for the purpose of assuring
compliance with this Certification and applicable waste discharge
requirements.
3. Materials must not be placed in a manner where �they could be discharged
to surface waters except as authorized by this certification. In the event
Calybrnia Environmenhd Protection Agency
R,,).kdPq.,-
The Irvine Company -4- January 4, 2007
that trash or debris is discharged to surface waters, the discharger must
recover the material to the maximum extent practical.
4. Project activities must not depress the dissolved oxygen content of Lower
Newport Bay below 5 mg/L as a result of controllable water quality factors.
When natural dissolved oxygen content is less than 5 mg/L, the discharger
must not cause further depression.
5. Project activities must not raise the PH of Lower Newport Bay above 8.6 or
lower PH below 7.0 as the result of controllable water quality factors;
ambient PH levels must not be changed by more than 0.2 units.
6. Project -related activities must not cause the background natural turbidity,
as measured in Nephelometric Turbidity Units (NTUs), in the receiving
waters to be increased by values greater than the following Basin Plan
objectives at a distance of 100 feet from the activity:
a. If natural turbidity is between 0 and 50 NTU, the maximum increase
must not exceed 20% of the measured natural turbidity.
b. If natural turbidity is 50 to 100 NTU, the increase must not exceed
10 NTU.
C. If natural turbidity is greater than 100 NTU, the maximum increase
must not exceed 10% of the measured natural turbidity.
7. An effective monitoring plan must be developed and implemented to
document compliance with conditions 3, 4, 5 and 6 above. Any suspected
violation of these conditions must be reported to Regional Board staff in
writing within 24 -hours of discovery. The monitoring plan and records of
monitoring activities must be maintained on site for the duration of the
proposed discharge and be available for inspection by Regional Board
staff.
8. Impacts to eelgrass must be compensated for according to the National
Marine Fisheries Service's Southern California Eelgrass Mitigation Policy,
including the creation of eelgrass beds. Any deficiencies in the mitigation
effort must be addressed according to the Policy.
9. A copy of this Certification must remain at the project site for the duration of
the work and be available for inspection upon request.
Under California Water Code, Section 1058, and Pursuant to 23 -CCR §3860, the
following shall be included as conditions of all water quality certification, actions:
(a) Every certification action is subject to modification or revocation upon
administrative or judicial review, including review and amendment pursuant
to Section §13330 of the Water Code and Article 6 (commencing with
Section 3867) of this Chapter.
California Environmental Notecdon Agency
CO Reqrledftper ,
The Irvine Company -5- January 4, 2007
(b) Certification is not intended and shall not be construed to apply to any
activity involving a hydroelectric facility and requiring a FERC license or an
amendment to a FERC license unless the pertinent certification application
was filed pursuant to Subsection §3855(b) of this Chapter and that
application specifically identified that a FERC license or amendment to a
FERC license for a hydroelectric facility was being sought.
(c) Certification is conditioned upon total payment of any fee required under
this Chapter and owed by the applicant.
Although we anticipate no further regulatory involvement, if the above stated conditions
are changed, any of the criteria or conditions as previously described are not met, or
new information becomes available that indicates a water quality problem, we may
formulate Waste Discharge Requirements.
In the event of any violation or threatened violation of the conditions of this certification,
the violation or threatened violation shall be subject to any remedies, penalties, process
or sanctions as provided for understate law. For purposes of sedion 401(d) of the
Clean Water Act, the applicability of any state law authorizing remedies, penalties,
process or sanctions for the violation or threatened violation constitutes a limitation
necessary to assure compliance with the water quality standards and other pertinent
requirements incorporated into this certification.
In response to a suspected violation of any condition of this certification, the Santa Ana
Regional Water Quality Control Board (Regional Board) may require the holder of any
permit or license subject to this certification to furnish, under penalty of pedury, any
technical or monitoring reports the Regional Board deems appropriate. The burden,
including costs, of the reports shall be reasonable in relation to the need for the reports
and the benefits to be obtained from the reports.
In response to any violation of the conditions of this certification, the Regional Board
may add to or modify the conditions of this certification as appropriate to ensure
compliance. Pursuant to California Code of Regulations Section 3857, we will take no
further action on your application. Please notify our office five (5) days before
construction begins on this project.
This letter constKutes a Water Quality Standards Certification issued pursuant to Clean
Water Act Section 401. 1 hereby issue an order certifying that any discharge from the
referenced project will comply with the applicable provisions of Sections 301 (Effluent
Limitations), 302 (Water Quality Related Effluent Limitations), 303 (Water Quality
Standards and Implementation Plans), 306 (National Standards of Performance), and
307 (Toxic and Pretreatment Effluent Standards) of the Clean Water Act, and with other
applicable requirements of State law. This discharge is also regulated under State
CaUfornia Envirommnial Protection Agency
0 R--x1edPqxr
rhe Irvine Company -6- January 4, 2007
Water Resources Control Board Order No. 2003-0017-DWQ (Order No. 2003-0017-
DWQ), "General Waste Discharge Requirements for Dredge and Fill Discharges That
Have Received Water Quality Certification" which requires compliance with all
conditions of this Water Quality Standards Certification. Order No, 200-0017-DWQ is
available atwww.swrcb.ca.-gov/resdegLwAorders/2003/wq "/w o200?:0017.R
Should there be any questions, please contact Adam Fischer at (951) 320-6363, or
Mark Adelson at (951) 782-3234.
Sincerely,
�� \/. 6Ltt�
GERARD J. THIBEAULT
Executive Officer
cc (via electronic mail):
U. S. Army Corps of Engineers, Los Angeles Office — Jae Chung
State Water Resources Control Board, OCC — Erik Spiess
State Water Resources Control Board, DWQ-Water Quality Certification Unit —
Bill Orme
California Department of Fish and Game — Naeern Siddlqui
U.S. EPA, Supervisor of the Wetlands Regulatory Office WTR- 8 — Eric Raffin!
and Dave Smith
APFA011cerfifications/balboa marina dock reo 302007-29
California Environmental Prolec&n Agency
0 RecyckdP*-
ATTACHMENT D
DREDGING AND DISPOSAL OPERATIONS PLAN
DREDGING AND DISPOSAL OPERATIONS PLAN
BALBOA MARINA DOCK REPLACEMENT
Prepared for
The Irvine Company LLC
550 Newport Center Drive
Newport Beach, California 92660
Prepared by
Anchor Environmental CA, L.P.
28202 Cabot Road, Suite 425
Laguna Niguel, California 92677
September 2008
Acronyms and Abbreviations
BMP
best management practice
CY
cubic yard
DA
Department of the Army
DB -3
Dutra Dredge DB -3
Dutra
Dutra Dredging Company
E -Trac
E -Trac Engineering, LLC
MLLW
mean lower low water
NOS
National Ocean Service
USACE
U.S. Army Corps of Engineers
USEPA
U.S. Environmental Protection Agency
Dredging and Disposal Operations Plan October 2008
Balboa Marina Dock Replacement ii 070483-01
Table of Contents
1 INTRODUCTION ................................................................................................................................ 1
2 CONTACTS AND VESSELS INFORMATION ...................................... ; ........................................ 2
2.1 Condition 5A .................................................. 7*"*"*** . . * ........ .......... * ... * ' 2
2.2 Condition 5B .................................................................................................. I ............................. 2
3 DREDGING AND DISPOSAL OPERATIONS ................................................................................ 6
3.1 Condition 5C through 5D ......................................................................................................... 6
3.2 Condition 5E ............................................................................................................................... 6
4 DEBRIS MANAGEMENT PLAN ...................................................................................................... 7
List of Tables
Table 1 Project Contact Information ........................................................................................... 2
Table2 Vessels ............................................................................................................................... 5
Table 3 Control Equipment and Monitoring ............................................................................. 5
List of Appendices
Attachment A Pre -dredge Bathymetric Survey
Dredging and Disposal Operations Plan 1�z October 2008
Balboa Marina Dock Replacement 070483-01
Introduction
I INTRODUCTION
Pursuant to Dredging Conditions 5A through 5F of Department of the Army (DA) permit
,SPL-2007-00372-FBV, The Irvine Company is pleased to submit the following information and
request for Notice to Proceed with dredging at Balboa Marina.
Dredging and Disposal Operations Plan 1�z October 2008
Balboa Marina Dock Replacement 1 070483-01
Contacts and Vessels Information
2 CONTACTS AND VESSELS INFORMATION
2.1 Condition 5A
Project contact information is contained in Table 1.
Table I
Project Contact Information
Name
Title
Phone Number
Kurt Grant
Bellingham Marine Industdes, Inc.
(360) 990-6497
General Contractor
Dutra Dredging Company
(415) 258-6876 Office
Bill Dutra
Owner
(415) 450-0871 Cell
Dutra Dredging Company
(415) 847-6640 Cell
Ray Waters
Project Manager
(949) 646-1186 Fax
Dutra Dredging Company
(415) 519-4262 Cell
Andrew Hunt
Project Engineer
(949) 646-1186 Fax
Brad Shoffit
Dutra Dredging Company
PEoject Supervisor
Cliff Hunt
Dutra Dredging Co.
(805) 223-5456
Administrative Safety Supervisor
Adc Schuster
Dutra Dredging Co.
(707) 333-9338
CQ Manager
I
DB -3
Dutra Dredging Company
VHF Channel 13,16, and 82
1 (916) 257-4642 Tugboat
Roland Brusco
Brusco Tugboat and Barge
VHF Channel 13,16, and 82
Joshua Burnam
Anchor Environmental CA, L.P.
(818) 378-4635
Owners Representative/Construction Manager
2.2 Condition 513
Vessel names, types, sizes, and navigational/traddng information is contained in Tables 2
and 3. Material dredged during the Balboa Marina dock replacement project is being
disposed at LA -3. In order to safeguard against dredge spoils overflowing into the ocean
and Newport Bay during transit to the disposal site, disposal scows will only be loaded to
80 percent of bin capacity; and strict guidelines on acceptable weather and sea conditions
will be followed in order to avoid potential overflow outside of the designated disposal
area.
Dredging and Disposal Operations Plan '�Z_ October 2008
Balboa Marina Dock Replacement 2 070483-01
Contacts and Vessels Information
Table 2
Vessels
Equipment Name
Equipment Type
Size
DB -3
damshelldredge
5 cy bucket
Scow No. 6
dump scow
3,000 cv
Roland Brusco assist tugboat 75 feet by 18 feet
Survey 1 survey boat 23 feet by 9 feet
Notes:
cy = cubic yard
Table 3
Control Equipment and Monitoring
PoWtion Azimuth
Equipment Control VerticalControl TidalControl Control Software/Hardware
Innerspace 448
Fathometer, 3 E -Trac Tide
Survev 1 Trimble RS4000 Dearee Transducer Gauae Trimble Hvpack Max
E -Trac Tide
Dredge Trimble N/A
Gauge Trimble Hypack Max
Towing Tugboat E-Trac(Nobel Sys/
Roland Brusco Tdmble N/A N/A Sperry E -Trac
Notes:
NiA = not applicable
E -Trac = E -Trac Engineering, LLC
Prior to the start of a disposal trip, a barge certification checklist must be filled out and
signed by a Dutra. Dredging Company (Dutra) representative. Scows are not permitted to
depart for LA -3 until Dutra contract disposal requirements have been met.
The system installed by E -Trac Engineering, LLC (E -Trac), is programmed to monitor the
position, draft, and track -line history of scows from the start of the disposal trip through the
disposal episode and back to the dredge area. This information is downloaded from the
internet and submitted as record of disposal activities. In the event that the data is not
available on the internet, backup data can be downloaded directly from the vessel by
E-Trac's technicians.
A radio -link connection between the dump scow and tugboat allows the captain to monitor
the operating status of the unit installed on the dump scow as it is being towed to the
disposal site. The system will be thoroughly checked prior to each disposal trip.
Dredging and Disposal Operations Plan '�Z' October 2008
Balboa Marina Dock Replacement 3 070483-01
Contacts and Vessels Information
E -Trac will be contacted immediately for prompt repairs when any problems with the
systems are noticed. The tugboats are also equipped with navigation systems of their own,
and captains are required to record each disposal trip using their system as additional
backup data. Pursuant to the requirements of the permit, the Contractor's real-time scow
tracking system has the following features:
1. Real-time display of the disposal scow's position on the towing tugboats
2. National Ocean Service (NOS) chart overlay documenting the scow's position from
the dredge area to the disposal area
- This feature gives the tugboat operator the ability to track the scow's position
while passing out of the mouth of Newport Bay in the main outbound traffic
lane, onto the LA -3 disposal site, and back into the Newport Bay Lower Harbor
in the main traffic lane.
- Traffic lanes to and from LA -3 will also be displayed.
3. Automatic data logging of the scows position, draft, date, time, and duration of the
disposal at the LA -3 and nearshore disposal site
- This data logging will occur during the trip, at approximately 20 -second
intervals, and before, during, and after disposal, at approximately 2 -second
intervals.
4. Heading, bearing, and distance from the scow to the center of the nearshore disposal -
site and LA -3
5. Real-time disposal location via an internet website
- The internet argos (etracweb.com) display of each scow load disposal trip to the
disposal sites allows the U.S. Army Corps of Engineers (USACE) and U.S.
Environmental Protection Agency (USEPA) to monitor each disposal trip via the
internet.
- The internet link also displays the position, draft, and location of the scow from
the start of the disposal trip through the disposal area and back to the dredge
area.
Dredging and Disposal Operations Plan I�Z, October 2008
Balboa Marina Dock Replacement 4 070483-01
Contacts and Vessels Information
The Contractor will collect the following information relative to each trip to LA -3. This
information will be compiled and provided to the USACE and USEPA, per the requirements
of the permit:
1. Scow certification checklist (weather, scow load, DDLS scow tracking verification)
2. LA -3 disposal location and duration plot
3. Data versus time plot
- This illustrates the draft of the load and any changes during the disposal run and
the time of the disposal and duration.
A. NOS nautical chart disposaltrip plot
- This data is a plot of the disposal trip referenced to its geographical location.
Dredging and Disposal Operations Plan 1�z October 2008
Balboa Marina Dock Replacement 5 070483-01
Dredging and Disposal Operations
3 DREDGING AND DISPOSAL OPERATIONS
3.1 Condition 5C through 5D
Material to be dredged from Balboa Marina was approved for ocean disposal at LA -3 by the
USEPA and USACE. The project involves the dredging of approximately 34,000 cubic yards
(cy) of material in order to reach project depths varying from -8 to -10 feet mean lower low
water (MLLW), plus a 1 -foot overdepth allowance. The dredged material will be
mechanically dredged via a clamshell bucket mounted to the Dutra Dredge DB -3 (DB -3) and
placed directly into disposal scows tethered alongside the dredge. Scows will be
transported to LA -3 using tugboat assistance. Dredging is scheduled to begin November 17,
2008, and will last approximately 25 working days. The Contractor has supplied the
following dredging plan information:
The scows will be positioned immediately adjacent to the DB -3 as to allow for the
clamshell bucket to deposit the dredged material directly into the scow from the
dredge prism.
0 Each clamshell bucket will be placed completely into the scow as to avoid a splash of
material outside of the disposal barge.
. The disposal barge will be filled to 80 percent capacity at which point tugboats will
take the load to the disposal site.
. Weekly, pre-, and post -hydrographic surveys will be conducted as per specifications
for dredging and as part of the daily quality control.
. Lead line soundings will be taken at 40 -foot intervals to assure tide -corrected depths
are within the required lines and grades as specified in the specifications.
3.2 Condition 5E
The pre -dredging bathymetric survey is included as Attachment A.
Dredging and Disposal Operations Plan 1�z October 2008
Balboa Marina Dock Replacement 6 070483-01
Debris Management Plan
4 DEBRIS MANAGEMENT PLAN
The source of material to be dredged is located at Balboa Marina. Based on the sampling and
analysis program, the material to be dredged is primarily muds and sands. Debris to be
encountered should be relative to historic marina operations and should include various debris
associated with recreational marinas. The Contractor has the following debris management
plan:
. Solid waste:
- A Grizzly (withl foot by 1 foot mesh) will be utilized on the disposal scows. Any
material captured by the Grizzly will be decked and removed to a certified landfill.
- All rubbish, garbage, and other discarded solid material, larger than 48 inches in any
dimension, resulting from dredging and offloading operations will be retained on
board the dredge in provided containers until transfer to appropriate refuse
receptacles for upland disposal, as'necessary.
- Refuse service used will be an acceptable local refuse company.
0 Chemical waste:
- All chemical waste (such as oil and grease) will be retained onboard in special tanks
until pumped off for disposal.
- Waste oil service will be an acceptable local disposal firm.
. Floating debris:
- A tending workboat or skiff will be deployed to trap any floating debris resulting
from the dredging operations. Once the floating debris has been isolated, it will be
picked up by the workboat crew and retained for disposal in compliance with
procedures for solid debris.
- A containment boom and curtain will be put in place, as needed, if floating debris is
encountered.
- All debris, floatable or non-floatable, greater than 24 inches in diameter will be
removed prior to disposal or placement of dredged material.
In addition to the debris management plan, the Applicant and Construction Manager will
implement the water quality monitoring plan required under the 401 Water Quality
Certification for the project. The Contractor shall deploy, at all times during dredging, a
continuous floating silt curtain and maintain proper best management practices (BMPs) to
control turbidity and other controllable water quality factors.
Dredging and Disposal Operations Plan '�Z October 2008
Balboa Marina Dock Replacement 7 070483-01
ATTACHMENT A
PRE -DREDGE BATHYMETRIC SURVEY
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PLEASE NOTIFY THE ASSESSOR OF NEW MAILING ADDRESS
Pay Online: go to ww.ttc.ocgov.com
Would you like to know how the County spends your
money? See the OC Citizens' Report at
bttpl,//Www.ac.ocgov.com/finrpt.asp
**Plpase WRITE PARCEL NUIMER an Your check**
WFORTAril' rNFORMATION ON REWRSIE GIVE
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[ $7,251.114
SECONDINSTALLMENT
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ApfAlmn IMATAI I MF_A
NUMBER
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ORANGE COUNTY SECURED PROPERTY TAX SILL 2006-2007
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ORANGE COUNTYTAX COLLECTOR
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SANTA ANA CA 92702-1980
DUEFEBRUARY1,2007
P: ""After ApdI 10, 2007"**
Add 10% Penalty $735.11
A1 4' $10.00 cost
SECOND INSTALLMENT DUE
AFTER APRIL 10, 2DD7. $7,986.25
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ASSESSOR
To PAY 13Y
COUNTY OF ORANGE
JOHN M. W. MOORLACH, C.P.A., CFP&
CREDrr CARD
TRY OUR
TREASURER -TAX COLLECTOR
WEBSITE
12 Civic Center Plaza, Room G58 0 Santa Ana, CA 9270
14.19
13.27
Mao tD! P.O. Box 19130, Santa Ana, CA 92702 -IM
COMPUTATIONOF
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MONDAY - FRIDAY
CK70
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(H4)6W3411
FOR VALUE OUMOMR.
Al
COAST CCD 2M ED 06
(7114)834-2727
(70) 04-2465
OFMEMOURS
your loan, please make sure your Property Taxes .
&W AM. - 4:46 RIA
8:00 AJA - 4,45 P.M
A A P.M
199NC;AY
MONDAY - FRIDAY
MONDAY -FRIDAY'
I
:300
FRIDAY
-
&RWMff,ggMTO PAY YOUR BILL
IER
LEGAL DESCRIPTION:
2.62
I P BK 16 PG 10 PARC UN
IRVINE CO DESCRIPTION
GRACE RESTAURANT GO LAM
55D NEWPORT CENTER OR
NEWPORT BEACH CA 92660-7011
12:01 A.M. ON JANUARY I. 2DD&
'Co
FULL
COMPUTED
TAX
FT—OTAL VALUES: I 194,09T I ZMSZ441
- You may now use a crea-ir � — F -Y Y- -
(See reverse side for details.)
Z
aNii-C-6 iii"80 03
.0009
IK097
17.64
- Mail MUST BE POSTMARKED on or before THE DUE
Al
NEW-MIESA U45 Dig 00
.00731
194,097
14.19
13.27
DATE to avoid penalties.
(see paragraph ICA) an reverse side for details.)
Al
Al
COAST CCD 2002 00 05
NEW-W&SAU-00111IS03
men
ADWS
194,097
1KO97
12,67
- We 00 NOT send separate bills or reminder
Al
NEW -MESA U-00 END 01
.00503
ish;Gff
9.77
9.12
notices for the 2nd Installment.
At
METRO WATER D4AMOC
CK70
IK087
1941,097
Refinance/Loan payoffs : If you have refinanced
Al
COAST CCD 2M ED 06
OOM
.02
your loan, please make sure your Property Taxes .
will be paid. If you have paid off your loan. you
SPL ASMNT UftR FEES*�
FOR INFO CALL:
(SmOr"167
2.62
are now responsible for paying your Property Taxes
SA
MOSQ.PIRE ART ASSPAT
AS
when you provide a check as Payment, funds may be
BS
VECTOR CONTROL CK9
CHG
(WOM"167
IIIAO
withdrawn from your account on the same day we
C7
MIND WATER STORY
receive your payment, - AND you will not receive
your check back frare your financial institution.
PLEASE NOTIFY THE ASSESSOR OF NEW MAILING ADDRESS
'Pay O"line: go to www.ttc.*CgOv.COM
d you like to know how the County spends Your
�y? see the OC Citizens' Report at
;//Www.ac.ocgov.com/finrpt.asp
**Please WRITE ,ARCEL NURSEK 00 your cmecK:--
Id
�RMATION ON REVERSE SIM i 1.039661 2A32A4
FIRST INSTALLMENT SECOND WSTALLMENT —_ 2] TOTAL
DUE 1 $1,016.2 DUE AN[)--*
$110'6'221 DUE V112007 ------ — -- 10- PAYABLE
THERE WILL BEA 6=0 FEE MR EACH PAYMENT RETURNED BYtHE 13ANK FOR ANY REASON.
�%� -1-A2 a somm-P
PARCEL NUMBER
TAX RATE AREA
EFT#
90120
FEBRUARY 1. 20P $1,016.22
ORANGE COUNTY SECURED PROPERTY TAX BILL 2006-2007
"I'"After April 10, 2007"
P Add 10% Penalty $111.62
$10.00 cost
MAKE CHECKS PAYABLE TO: AS*ECOND INSTALLMENT DUE $1,127.84
AFTER APRIL 10. 2007'
2 y Additional penalties are charged
ORANGE COUNTY TAX COLLECTOR if twies are not paid by July Z 2007
P�O. BOX 1980 LIU can pay at www.tte.22gov.com
SANTA ANA CA 92702-1980
GlaS045157DaOG4200602041007000010162206300700001127840000000000000DO01
FIRST IrdqTJU I MFMT PAYMFUT
P . ARCEL . NUM BER TAX RATE AREA 5FTW___1
CONTROL#
=
05045140 074M 9012
A0147003
To PAY By
TAX COLLECTOR ASSESSOR
AUIXTOR-
COUNTY OF ORANGE
JOHN W1. W. MOORLACH, C.P.A ., CFPS
CREIDITCARD
L
FMAL PAymeas ZMWffft=
AM WMIFUFS
CONTROLLER
TREASURER -TAX COLLECTOR
Is
TRY OUR
VVIEBSITE
(7`14) &34-21M
COMPUTATION OF
PROPERIYTAX
12 Civic Center Plaza, Room G58 4 Santa Aria, CA 92701
tw. P.O. Box 1980, Santa Ana, CA 9Z702-1980
HQME~ER
FjME HOUIq6 EXEMPTIONt
9:00A_M.-4A6PJA (714) 834-A821
EMAR:
P"WWWO-2--m
Mail
SECURED PROPERTY TAX BILL
MONDAY - FRIDAY
QUESTION&
vvmsrm
XWLMM9Ry_A
2606-2007 Fiscal Yew JUIO, 2006 - June 30, 2007
rR4)834-3411 FOR VALUE
(714)834-2727
(7141 S34-240
OFF= HOURS
&00 A.K - 4:45 PAL
.�A
INDMW RRIDAKY I MONDAY -FRIDAY
I&
I MOO A FA -M
ONdAl� JAROHMAY
rp RTY LOCAMOK
1261 E COAST HY NEWPORT BEACH
WESSITE. To PAY YOUR BILL
0030447-00"7SPRE—
PARCELNUMBEIR I
LEGAL DESCRIPTION:
*BWNLBl-jV *—"***"AUTO"* 5 -DIGIT 92660
$0604 5160 200660
5045140
[!!cc;=
TRACT 6381 LOT 2 POR OF L
ASSESSED VALUES AS OF JANUARY
1, 2000
I 111111111111111111111111 1111111111111111111 111111
DESCRIPTION
IRVINE CO
FULLVALUE
LAND
GRACE RESTAURANT CO
2,511,007
550 NEWPORT CENTER DR
IMPROVEMENTS- BUILOM
W.068 COMPUTED
NEWPORT BEACH CA 92SM-7011
PERSONAL PROPERTY -OTHER
2IA76 TAX
TOTALVALUES:
SAGZ2151
40AM90
OWNER OF RECORD ASOF 12-011 A.M. ON JANUARY 1, 200M
LEM
TOTAL NIITTAXABLE VALUE;
3,116Z25111
0A00020
IRVINECO
%GRACE RESTAURANT CO
ATTENTION
TAX
TYPE
"a
RATE
a'
VALUE
BASE
AMOUNT=
RA�
- You may now use a credit card to Oay your taxes -
Al
BASIC CEWW�y
IAMO
AM
ZISZ251
3,16=511
31,622M
28TA4
(See reverse side for details.)
- Mail 14UST BE POSTMARKED an or before THE DUE
Al
All
COAST CCD 2002 SO 03
NEW411ESA U -W DISI 00
Mni
3,162,251
231.16
DATE to avoid penalties.
Csee paragraph I(A) on reverse side for details.)'
Al
Al
COAST CCD2002 OD 08
NEIN-MESA U-00 013 03
AOM
.00M
3,16Z251
-%16%251
217.119
2DUC
- we Do NOT send separate bills or reminder
Al
NEW-NIESAU-013ND011
M03
3,162,251
$114=51
159.08
148.63
notices for the 2nd installment.
Refinince/Loan payoffs : If you have refinanced
Al
All
METROWAM&MWDW
COAST CCD 2002 ED 06
A0470
AMM
%imm
All
your loan, pl ease make sure your Property Taxer,
will be paid. If you have paid off your loan, you
SPL ASUNT USER FEES�
FOR INFO CALL'
are now responsible for paying your Property Taxes
BA
MOSORRE ANT ASSN1T
(NDWI"167
13.12
420
When you provide a check as payment, funds may he
83
VF=ORCONTROLCHG
(801IM"167
11.60
withdrawn from your account an the same day. we
C7
MVWWATERSTI)SYCHIS
IBGS)W740114
7,"7.90
receive your payment, AND you will not VeMive
U4
OCSI)SEWERIUSERFEE
your check back from your financial institution.
PLEASE NOTIFY THE ASSESSOR OF NEW MAILING ADDRESS
Pay Online: go to www.ttc.ocg*v.com
Would you I Ike to know how the County spends your,
money? See the OC Citizens' Report at
http://Www.ac.ocgov.com/fiarpt.asp
*15P1aa,_c,R WRITE PARCEL NUMBER on vour check**
FIRST INSTALLMENT $2 T TOT
0,000.46] SECOND INSTALLMEN $20,000.45 DUE AND
DUE i11112006-.___.. DUE 21112007 ---- - --- PAYABLE
THERE VWILL BE A $30MO FEE FOR EACH PAYME14T RETURNED 13YTHE 13ANK FOR ANY REASON.
F —PARCEL NUMBER
TAX RATE AREA
EFT#
07-001
90120
ORANGE COUNTY SECURED PROPERTY TAX BILL 2006-2007 P
MAKE CHECKS PAYABLE TO.' A
2 y
ORANGE COUNTY TAX COLLECTOR
P.O. BOX 1980
SANTA ANA CA 92702-1980
FEBRUARY 1, 2007 Boo""' ';$20,000.46
�Atter Aprit 10, 2
10% Part* $2,010.04
0.00 cost
DUE $22.010.49
Additional penalties are olvrqed
if taxes are not paid by July 2, 2007
can pay at www_ttq.gWov.cgm
01050451600000820060204100701102000045063007000220104900000000000000005
minew mla�AF I Kfiaarr affivamak"
NEWPORT BEACH FIRE AND MARINE DEPARTMENT
December 16,1999
Mr. Derrick D. Niblo, V. P. Facilities
Newport Nautical Museum
151 East Coast Highway
Newport Beach, CA 92660
Re: Utilization of the Beach Facilities to the West
Of the Nautical Museum Vessel and
Modification of the Existing Landing Dock
Adjacent to the Channel and the Vessel
Dear Mr. Niblo:
Please accept my apology for not responding to your questions put to
me some time ago. My recollection was that we discussed this by
telephone and I did not realize that you needed something in writing.
Use of the beach adjacent to and north of the Nautical Museum:
Based . on your proposal, as long as you have approval of the property
owners and the City's Planning Department, I can see no objection from
the City's Marine Envirom-nental Divisi ' on to the use you propose. In
fact, based on the way it has been described, it would not be necessary
for the Marine Environmental Division to issue any permit at this time,
but as your plans develop, please keep us apprised should your plans
change.
Regarding the minor revision to the dock:
Based on your description of the revision, I believe it could be done
with a maintenance permit. However, we would need to see drawings
indicating exactly what is to be done. My understanding is that it is a
minor extension of the dock to incorporate the piling closest to Linda
Isle. To facilitate the next step please submit a drawing to our
department and we will make a determination on what permits are
necessary.
Thank you for your patience and if you need to discuss this further
please don�t hesitate to call at 949-644-3041.
Sincerely,
Tony Melu7
Deputy Chief Marine Environmental Division
z
STATF OF CALIFORNIA - THE RESOURCES AGENCY GRAY DAVIS, Govemor
CALIFORNIA COASTAL COMMISSION
South Coast Area Office /0' 'W'
200 Oceangate, Suite 1000 1"5 :�
Lona Beach CA 90802-4302 October 2, 2002
(562) 590-5071
Mr. Tony Melum
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Subject: Condition Compliance — Coastal Development Permit 5-99-282, as amended
& Conformance with Consistency Certification CC -078-99 & CC -077-01
Dear Mr. Melum:
Commission staff have received information submitted as evidence of compliance with Coastal Development
Permit 5-99-282, as amended, and/or as evidence of conformance with Consistency Certifications CC -078-99 or
CC -077-01 for the following sites in the City of Newport Beach:
V
City Harbor
Permit #
Site Address
Beach
Disposal
Qty .
(cu.yds)
Ocean
Disposal
Qtyt (cu.yds)
Cumulative
Total� for
2002
oast Hiahwav
0
1000
132-201-B
201 E. Coast Hiahway
0
1000
132-201-C-1
201 E. Coast Hiahway
0
1000
132-201 -C-2
201 E. Coast Hiahway
0
1000
/132-201 -D
201 E. Coast Hiahwav
0
1000
132-201 -E
201 E. Coast Hiahwav
0
1000
132-201 -F
201 E. Coast Hiahwav
0
1000
132-201 -G
201 E. Coast Hiahwav
0
1000
'�132-201-1-1
201 E. Coast Hiahway
0
1000
Sub -total
0
9000 1
I Year-to-date total
1 5090
1 11400 1
16490
Commission staff have reviewed the information submitted and determined that the above referenced dredging
events conform with Consistency Certifications CC -078-99 and/or CC -077-01 and that no further federal
consistency review is necessary from the Commission for the dredging and off -shore disposal components of the
projects. Since there is no beach disposal component to the proposed projects, CDP 5-99-282, as amended,
does not apply.
Please be advised that only the projects described in the materials submitted for the sites listed above have been
found to conform with Consistency Certification CC -078-99 and or CC -077-01. Any change in the projects may
cause them to lose their status as consistent with CC -078-99 and/or CC -077-01. This certification is based on
information provided by the recipient of this letter. If, at a later date, this information is found to be incorrect or
incomplete, this letter will become invalid, and any development occurring at that time must cease until a new
determination regarding conformance with CC -078-99 and/or CC -077-01 is obtained.
If you have��ny q tions, pjease contact me at (562) 590-5071 or Mr. James Raives at (415) 904-5200.
Since I
77
Karl Schwing
Coastal Program Analyst
CC: Mr. James Raives, California Coastal Commission
Ms. Cori Farrar, U.S. Army Corps of Engineers
Not to Exceed 500 cubic yards per dredging and beach disposal event
Not to Exceed 1,000 cubic yards per dredging and off -shore disposal event
Not to Exceed 20,000 cubic yards per year
R - YTO
L L
ATTENTION OF
Office of the Chief
Regulatory Branch
DEPARTMENT OF THE ARMY
LOS ANGELES DISTRICT. CORPS OF ENGINEERS
P.O. BOX 2711
LOS ANGELES. CALIFORNIA 90053-2325
July 29, 1994
Mr. Tony Melum.
Tidelands Administrator
City of Newport Beach
P.O. Box 1768
Newport Beach, California 92659-1768
SUBJECT: NOTICE TO PROCEED (No. 94 -896 -BH)
Dear Mr. Melum:
Reference is made to your letter dated July 21, 1994 in
which you submitted on behalf of Restaurant Enterprises at 251
East Pacific Coast Highway, a notification for the maintenance
dredging of Ill cubic yards of sand and silt material by
hydraulic suction and disposal of the.dredged material at LA -3
(latitude 33 31'42" North, longitude 117 54'48" West).
Based on the furnished information, we have determined that
the proposed maintenance dredging activity complies with the
terms and conditions of Permit No. 89 -211 -GS provided that the
Restaurant Enterprises' contractor does not exceed the maximum
dredging design depth of -5 feet MLLW with a maximum allowable
overdepth of -1 foot MLLW.
If you have any questions, please contact Bruce Henderson at
(213) 894-0351.
Sincerely,
0 -
John A. Gill
Chief, Regulatory Branch
PERMIT NO. / �,,7 ?" �
DREDGING APPLICATION
Project Location: 251 East Coast Highway
Cubic Yards to be Drddged: 111 cubic yards
method of Dredging: Hydraulic Suction
Nature of Dredged Material: Sand/Silt
Disposition of Dredged Material: Haul to sea and dump @ 1a titude 33031'42"N
Longitude 117-054148" W.
method of Material Disposition: Barge to sea.
Turbidity Control Method: . Material to be c-ontained in Dump Barge at
Dredge Site
Effect of dredging on contiguous bulkheading and beaches NONE
I 4isa E.. Xiller hereby state that I have read the U. S. Army
(print name)
Corps of Engineers permit forma.intenance dredging in Newport Harbor, the
City of Newport,Beach and Orange County Harbors,Beaches and Parks District
(if applicabl6) permit for maintenance dredging and that I accept all the
provi,sions.therein. Additionally.I guarantee that the proposed dredging
will not occur because of any altering of existing use of the affected
zone.
Restaurant Enterprises—
(Applicant -type name)
June 10, 1994
(Datei
SHELLMAKER INC.
(Contractor -type name)
Signed:,,��,, ke,_
Uo_nt&actor I s -
Representative
/9'v -
ICIrr aw N",pa"er 6.0.4c.Av
A JL
zw,
now
Air, It
re CP
I f�,, ". ". - I
ov
VICINITY XITCW mew -Orr
16' Sea,
S'o&,n d.,Aws ape owwassed on Abolo 009me mimoole
&&/*AW AVWdW "011IdIF d.SW 116*104M *WW&jjW&4W
we I - 'emsojeoe AP%SwA A%P&dw /,or*&
are w a #a ow.., &*OA-av oe**b W,~#' Aar.
C.
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Ap �Ur,,d 77,pr)�-es
p
CA -d"
Apaggras 6KI., OA rld r
CITY 0 F NLEVvFl,-"' �?"'f E;
HARBOR PERMIT
PERMISSION IS HERE13Y G70-4TED TO CONSTRUCT AND
MAINTAIN THE FACIL17Y 5,40404 ON THE REVERSE HEREOF.
AT THE SITE INDICATED, 5uAj.ECT TO T14E PROVISIONS OF
THE 14ARBOR PERMIT POU610--S OF NEWPORT BEACH AND
ANY SPECIAL CONDITIONS LISTED HEREON. THIS: PERMIT
IS NOt TRANSFERABLE WITHOUT THE WRITTEN CONSENT OF
THE CITY HARBOR COORDINATOR OR CITY COUNCIL, THE
RIGWS -GPfi* UNDER THIS PERMIT ARE PERMISSIVE
AND THIS PEWIY MAY BE R KED,.BY THE CITY COUNCIL
Irt =WT, 00 44'MUNICIPALZODE.
CITY HAKBOR,COORDINATOR
PERMIT NO. DATE
Ce
IMUE D SUM Mc r. ro
SEJJJG
'�AULEDTG SEA
RONALD J. LEJMAN, R.G.E.
DAVID H. LEE, R.G.E.
MICHAEL B. MOSCROR
LEJMANAMD LEE INCORPORATED
GEOTECHNICAL ENGINEERS
May 23, 1994
Ms. Shannon West
SHELLMAKER, INC.
875'B West Fifteenth Street
Newport Beach, CA 92663
COLIN E. CUNNINGHAM
THOMAS A. NEWSOM, C.E.G.
DAVID A. HASSER
ENGINEERING GEOLOGISTS
Our Project 94-06-01
SUBJECT: Grain Size Test Results for Your Soil Sample Obtained
f tom the Reubens Restaurant at 251 Pacific Coast Highway,
Newport Beach, CA 92660.
Dear Ms. West:
Presented herewith are the results of a grain size analysis
performed on the soil sample provided to us by your firm. The test
procedure was in accordance with ASTM D422-63 (1990) and U.S. Army
Corp of Engineers Report Number CETA 79-7 criteria.
Please do not hesitate to call if you have any questions after you
have reviewed the attached data.
Respectfully submitted,
LEJMAN AND LEE, INCORPORATED
Michael B. Moscrop
Laboratory Manager
DHL/f 1
HK
Revie�r`ed by:
-.2
-GE 510
David-IT-.-
gXPIRES,
Geotechnica njineer
PEC
OF
one copy submitted
Attachments: Plate 1 Grain Size Summary
Plate 2 Cumulative Grain Size Distribution
940601 gr.Itr/f I
23011 Moulton Rarkway e Suite 1-4 9 Laguna Hills e CA 921353 e (714) 5BI -5730 e Fax (714) 7BB-61 4B
GRAIN SIZE SUMMARY
---------------------------------------------------------------------
% Material
Cumulative
opening
Size
Sieve
Retained
Percent
(mm)
---------------------------------------------------------------------
Phi
Mesh
by Weight
Retained
4.75
-2.25
4
0.4
0.4
Gravel 2.83
-1.5
7
0.1
0.5
2.00
----------------------
-1.0
10
0.2
0.7
1.41
7 ----------------------------------------------
-0.5
14
0.2
0.9
1.00
0.0
18
0.7
1.6
0.71
0.5
25
1.6
3.2
0.50
1.0
35
12.9
16.1
Sand 0.35
1.5
45
12.0
28.1
0.25
2.0
60
31.6
59.7
0.177
2.5
80
28.8
88.5
0.125
3.0
120
9.1
97.6
0.088
3.5
170
2.3
99.9
0.074
3.75
200
0.2
100
---------------------------------------------------------------------
Silt-clay <0.074
3.75
<200
0
100
---------------------------------------------------------------------
0.7% Gravel
99.3% Sand
0%
Silt -Clay
Sample provided to Lejman and Lee, Inc. in a bulk bag
by Shellmaker, Inc. Sample consists of an olive brown
fine sand with some seashell fragments and was obtained
from Reubens Restaurant at 2151 Pacific Coast Highway,
Newport Beach, California at a depth of -4 to -6 feet
MLLW.
LEJIVIAN ANI:D LEE
I N C 0 R P 0 R A T E 0
GEOTEC FANICAL ENGINEERS
Fo r: Shellmaker, Inc.
GRAIN SIZE SUMMARY
le P L A T
1
r __`� P L A T E
CUMULATIVE GRAIN SIZE DISTRIBUTION 2
PHI UNITS
k�,Project 94-06-01________May, 1994)
LL JMAN AND LEE
I N C 0 R P 0 R A T E 0
M GEOTECHNICAL ENGINEERS
For: Shellmaker Inc.
70
0
00
LLI 50
0
cc
40
W
>
30
2 20
10
5
2
I
0.5
0.2
0.1
0.05
0.01
—4
PARTICLE
DIAMETER
IN
PHI
UNITS
16 0 6 0.25 OJ 25 0183 0.03113
PARTICLE DIAMETER IN MILLIMETERS
Median = 1.8 0 (0.3mm) 0.7 % Gravel
Mean = 1.8 0 (0.3mm) 99.3 % Sand
0 % Silt—Clay
Sample location: 251 Pacific Coast Highway, Newport Beach, CA.
At —4 to —6' MLLW.
r __`� P L A T E
CUMULATIVE GRAIN SIZE DISTRIBUTION 2
PHI UNITS
k�,Project 94-06-01________May, 1994)
LL JMAN AND LEE
I N C 0 R P 0 R A T E 0
M GEOTECHNICAL ENGINEERS
For: Shellmaker Inc.
LL JMAN AND LEE
I N C 0 R P 0 R A T E 0
M GEOTECHNICAL ENGINEERS
For: Shellmaker Inc.
CITY OF NEWPORT BEACH
PLANNING DEPARTMENT
PLAN REVIEW REQUEST
• ADVANCE PLANNING DIVISION
• PUBLIC WORKS DEPARTMENT
• TRAFFIC ENGINEER
• FIRE DEPARTMENT
• BUILDING DEPARTMENT
—PARKS & RECREATION
—POLICE DEPARTMENT
X MARINE SAFETY
—GRADING
APPLICATION OF
FOR:
Date: November 17, 1993
X PLANS ATTACHED (PLEASE RETURN)
—PLANS ON FILE IN PLANNING DEPT.
Williamson & Schmid
Resubdivision No. 1003
DESCRIPTION: Request to resubdivide seven parcels of land into four parcels,
for restaurant, commercial marina and private marina purposes
on property located in the RMC -H District and unzoned
submerged areas of Newport Bay.
LOCATION: 201-299 East Coast Highway
REPORT REQUESTED BY: November 24, 1993
COMMISSION REVIEW: December 9, 1993
COMMENTS:
Signature: Date:
WLLIAMSON & SCHMID
CONSULTING CIVIL ENGINEERS AND LAND SURVEYORS
MEMORANDUM
TO: DON WEBB, DICK HOFFSTADT, TONY MELLUM,
CITY OF NEWPORT BEACH; BOB ZEIBAK,
THE IRVINE COMPANY
FROM: JIM GILLE
SUBJECT: PARCEL C��(GURATION FOR BALBOA MARINA
PARCEL MAP NO. 85286-03
OUR JOB NO: 85286.03
DATE: OCTOBER 8,1993
On October 7, 1993 the Balboa Marina Parcel Map was discussed during a
meeting at the City of Newport Beach. The attached exhibit depicts the 4 parcels
configured as agreed upon by the City of Newport Beach. Accordingly,
Williamson & Schmid will begin preparation of the tentative map based upon
this layout.
In addition, we will identify easement areas for access and private pier purposes
adjacent to the Linda Isle lots as well as navigation access over the channel area
that will coincide with existing legal documents. These easement areas will be
designated separately on the map for easy reference on any grant deed for the
adjoining Linda Isle residential lots.
zk(me)MEMO
cc: Nfike Padian, TIC
Robert Sundstrom, W&S
CorporateOffice - 15101 Red Hill Avenue - Tustin, California 92680 - 714/259-7900 - FAX714/259-0210
Inland Empire Office - 1101 S. Milliken Avenue, Suite G - Ontario, California 91761 - 909/988-7880 - FAX 909/988-5299
San Diego County Office - 2011 Palomar Airport Road, Suite 109 - Carlsbad, California 92009 - 619/438-4332
Coachella Valley Office - 77-750 Springfield Lane, Suite A - Palm Desert, California 92260 - 619/360-3744 - FAX 619/360-3745
CITY OF NEWPORT'BEACH
Marine Department
July 12, 1993
TO: MAYOR AND CITY COUNCIL
FROM: Marine Department
SUBJECT: HARBOR PERMIT APPLICATION 132-201 BY THE IRVINE
COMPANY TO REVISE THE PERMIT FOR THE COMMERCIAL
MARINA BAYWARD OF 337 EAST COAST HIGHWAY
Recommendation:
If desired, approve the revision subject to the following
conditions:
1. That the applicant prepare a hold harmless agreement
subject to the approval of the City Attorney's office and signed by
the owner of the parcel at Reuben's Restaurant indemnifying the
City of Newport Beach against any claim for damages and defend the
City in any lawsuit filed by the property owner as a result of the
revision to this Harbor Permit.
2. That marina tenants be able to park and have access across
the "Charlie Brown Parcel" and that should this access or parking
become unavailable, the Harbor Permittee will f ind additional
parking and access sources subject to the approval of the Marine
Department or reduce the size of the marina operation based upon
available parking.
Background:
This application is before the City Council as required by Section
5.C.3. of the Harbor Permit Policies, which states:
5.C.3. "Prior approval of the City Council will be required
before issuing a permit for shore connected structures when the
upland abutting property is zoned commercial."
Currently the Irvine Company, through a subsidiary, the California
Recreation Company, operates a commercial marina bayward of several
parcels adjacent to Coast Highway and Bayside Drive. on March 8
and May 10, 1993, the City Council approved revisions to the
Commercial Harbor Permit which facilitated the sale of Parcels 3,
4 and 5 as delineated on the attached exhibit and allowed the
Irvine Company to maintain the marina in front of those parcels.
The Irvine Company now wishes to sell a portion of Parcel 1, in
front of the marina and to continue to maintain that portion of the
marina bayward of Parcel 1.
Historically the Harbor Permit zone has been delineated by the
bayward extension on the side property lines. When a Harbor
Permittee divests himself of the abutting upland property he is
required to transfer the Harbor Permit to the new owner. In this
particular case the sale of Parcels 3, 4 and 5 meant that the
Harbor Permittee did not retain all ownership of the abutting
upland property; however, the Marine Department recommended an
approval of the sale of these two parcels for the following
reasons:
1. Most of the upland amenities including parking, trash
disposal, restrooms and access to the docks are on property
retained by the Harbor Permittee,
2. The Harbor Permittee is retaining ownership of a
significant portion of the uplands that abut this Harbor Permit,
3. The waterway in this particular locat ion, over which the
marina is situated, is not State Tidelands, but is a private
waterway.
The sale of a portion of Parcel 1, identified on the attached
exhibit, will change very little the reasons for allowing that
sale. The majority of the upland amenities, including parking,
trash disposal, restrooms and access to the docks are still on
property retained by the Harbor Permittee. The Harbor Permittee is
retaining a significant portion of the upland property that abuts
this Harbor Permit, and the waterway is still a private waterway in
this location and not State Tidelands.
Tony Melum
Deputy Director
(SRJulyl2)
California Recreation Co.
1137 Bayside Drive Corona del Mar, California 92625
June 18, 1993
City of Newport Beach
Marine Department
Tony Melum
3300 Newport Blvd.
Newport Beach, CA 92659-1768
Dear Tony:
(714) 644-9730
�//O
Enclosed is check #486678 for $280.00. This is for that parcel of land
by Charlie Brown's Restaurant.
Could you please get this on the consent calendar.
Thank you.
Edward V. wer
President'
Enclosure (1)
FAX (714) 720-9436
-JUN -07-1j'993 15:42 FROM
40g SOUTR HOPE STREET
AHr.Q.I-.1; ' I:AtIFQRNIA 90071-ZEI99
TELEPHONE (243) 845%_8000
(21.21 146CP-e4*7
19%q AVENUr <W IMr VAR.
LOS ANC;CLPS, CAUVORWA, 90067-8035
TG(.EPHQmr IMM tM3,6700
rACSIMILE (XV) E40-6779
StIE IS" STPFETI N.W.
WASMINGTON, ID, G.,
TELEPHONE M021 383-534DO
FAC.SIMILG 1792) Z1S3w_t4I4
C;ITI(;QRP rVNTrR
ISO EAST S3'D STREET
NEW YOPK, NrW YQPK 10022-40311
TF.6GPMQNS (212) 3243-20QQ
FACSIMILe
WRITER'S DIRECT DIAL NUMBER
(714) 669-6906
VIA TELECOPIER
O'MELVENY & MYERS TO 6#413102236#96733056 P.02
O'ME:LVENY & MYERS
5UITIE 1700
610 NKWPORT CIENTCR DRIVE
NEWPORT BEACH. CALIFORNIA 91P-GGO-6499
TE615PHONE �N4) 1-4;C)4I6QQ
TELrX 4722088 - FACSIMILIC, (714) 6439-6994
,Tune
7th
1 9 9 3
Mr. Tony Melum
City of New -port Beach
330 Newport Boulevard
Newport Beach, California 92663
Re: Harbor �?��rmit AP10jjg_qj;ion U2-2,01
ItMeAFH' APr.RQ CENYIEP WEST
275 OATTEAV t7Pr.GT
SAN I`AANCIFMQ� GAWFOAHtA 04IM3305
T66rPHONC ;41!;1 V84-6700
f`A&_%;MILE 141S) 984-e!PQI
19 FINSBURY $OUARE
LONOON EC2A ILA
TMAPHON? 40!r0 ;356-8451
FACSIMI" 1070 638-8201%
AKASAKA "IN TOWFI*, rA',T IS— FLOOR
2-17-2-2 AKASAKA, MINATO-KU
TOKYO 107
TrI.GPWONE tOW Z567-2800
FACSIMILIC 1924) 3587-07213
AllrNIVS L.Ovisre 106
1050 sput�610.s
TSI.EPHONE 102) 847.0115-50
FACMMI�E coa� e46�1-2q
OUR FI1.r_ NUM911CR
413,102-236
1155966
Dear Tony. -
As we discussed this morning, accompanying this letter
is a proposed Addendum to be added the Staff Report dated
April 29, 1993. If you have- any questions or comm-ent-g., please do
not he��itat-e to 0all me z-_Ur1;s_ct'1y.
ZIP
Paul E,, Xl-_'�Iev
&
�4�
CC. 3-ffrey "T. Wal -lace,
'42 FROM 0'MELVENY & M"ERS
TO 6#413102236#9673305:76 P.03
ADDENDUX TO STMIF
BATZZ APRIL S9, 1993
C
CONCRANTMO HARBOR ?STRAM."'M APPLICATION 132-202.
In approving Harbor Permit Application and in
issuing 4 ' -he Permit, it is acknowledged t-Irlat the fee JMteres-C in
Parcel 3 is contemplated bebing sold and that, subsequent to such
sale, the fGe owner of Par�-_sl 3 will be different from the Harbor
Permittee. Further, that some restroom, parking, trash and access
aoilities are used by the Harbor Permittee Ithat are locatled upon
Parcel 3 and which will remain located uDon such Parcel subsequent
tt'o the sale contemplated above. However, the sale of the f ee
interest in Parcel 3 shall not affect the Harbor Pernit and such
Pern,jit shall remain in full force and effect notwithstanding such
sal , e, provided that the recommendations set forth in the Staf f
Repozft aM followed.
Date : _? i993
Deputy Director
Ma.rine 'UepariC.-f�ent
Clity Of-' Newport Beach
NB
, )6 � C,7�92�.
TF27AL P. 03
O'MELI J&41' ':l -t413102236#96733056
TeAc4 47Z20M Tax
TELECOP"'i"
P. oll
HIS MES'SAGE tS iNTENDED ONLY FOR THE OF THE INDIVIDUAL OR, ENTj7.'Y 70 WKC�H IT IS ADDRESsEr'
AND VW� CONTAIN iNFORMATION THAT iS PRNI�LEGED, ('_'0Nr';DENTiAL AND EXEMPT FROM DISCLOSURE
R TP
1;� r_. E
UNDER APPLICCABLE LAW. IP THE READER OF THiS MESSAGE IS NOT THE INTENDED RECIPIENT, Or
EMPLOYE -E OR AGENT RESPONS�SLE FOR. DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE
HEREBY NOTIFIED THAT ANY DISSEMINATION. DIS7RIBUTION OR COPYING OF THIS COMMUNICATION !s
HEREBY PROH11811'ED. IF YOU HAVE RECEIVED THIS 0QfqjklUNICAT!0N iN ERROR, PLEASE N071IFY i_`13
IMINIEDIATELY SYTELEPHONE AND RETURN THE 09�&[,.,IAL MEqSAGE.ro US AT THE ABOVE ADDRESS ',_11:k THE
';ERviC-�L l'HAN'K YOU.
LJ,
7C)
1 -DOPIER NUMBER
"M T" T E EF "D N'E' NU N'� B E
JUNIBEr"I OF PACES 'TO FOLLOW
Rl C,,'PIENT:
iXj'v'E)Fi PAGE
L "I "I
LAI
NAME
i RESPONSMLE A -FL -Y NAIN'=pf Disle-rent b m Se
V9
ORIGINAL LOCA7 10N
�3P&C-iA-L INSTPUCIPON%3�
'f' M! DO NOT REC'�� i LL PAC, ES OF TfiK.' �? Zz' _,N
p"I A, �-1
A"
15:59 FROM O'MELUENY MYERS TO #413102236#96733056# P.01
FAYERS
Boos 001
Fawport East., Abonn .; S&Sil
Wephlyne: '714, 780-963c-
Imen 4722068 Fanswule: '714)
TK$ MESSAGE 13 XTENDED ON& FOR THE USE OF WE IND,V!WAL OR E!"417TY TO W'HICH IT ADDREWD,
AND -M.-),Y COiNT 4,;N VFQ'Rl'vlAT if-�N THAT 16 PR.iVILEGED. CO�,Q'FZENTIAI- AND EXEMPT PROlol DiSCLOSURE
U�,0ER APPLICABLE LAW �F THE READER OF THIS NMESSAGE iS %10T THE INTENDED RFCP�ENT OR THE�
0v'P;.,0'(EE OR AGEN"i' RESPC,�,�-S!5LE FOR, DELIVERIN'Q THE ,AES3AGF- TO THE INTENDEZ� REC:PIENT� '�Ou 4p,:�
H,eREF--',Y NC;TiRED -FHA7i A. -,,,Y DISSEMIINATIONI, 'DISTRIBUITI&I OR COPONG OF THIS 00I,/;MJNlCA-, ION �S
STRWY PPOWTED, -Y,;U HAVE RECEIVE'-) THIS IN' ERRORI PLEASE N07IFY US
I.'A 'M, E D 1ATELY SY TE'i-EPHC)NE Al`-J�) rRE7URN THE ONGiNAL MESSAGE TO US AT THE ABOVE ADDRESS ViA TH'F
E T. '"N -" -
Ou
oms" Sme or dW
No w un, ..... ...
lj',,lAI'---� E R
TELEP�—'ONE
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7
..... .......
PILE 0
R�l NA-ME—
CrRie—�WlAi— TO
IF YOU VQ NO! RECOVE ALL PAGGS Or-
KnAW CALL
JL
,,!N-03-1993
15:59 FROM O'MELVENY & MYERS
400 sou -,m m*e� sTmarr
LOS ANI;.I;LF�'S, CALIFORNIA 00071-2800
TELrPHONC. as*.4L%0"
4000 AV�NVU OF THE STARS
LOS ANC-CLES, CAUPOIRWA 0*QE;7-,30.5t
TELEPHONE M07 553-8700
rACr,IMILE 431V t40 -t779
SSE, 131A STPqCT, 14.W.
wASHiNaTON, 0, C. 20C�C�IIQEI
TiCt.r.pWoNr (202) aei3-szoo
,ACSJMILE.L702) 383-5414
ITIdPRP CENTI!R
IS -21 CAST WIRD STPLCT
NZW Y(;IRK. NEW YORK IQQZP-4eII
TISLEPHONIt (21;3) JZS-2000
FACMM04E (2121 326.2!Qist
WrAITMW!; PIRECT OIAL NUIVI�%&;t
(714) 669-6906
YTA MELEgOPIZ
E
TO #413102236#96?33056#
(:)'ME:LVF-NY & MYE:RS
SOITE 1700
(310 NEWPORT Cr6NTCR DRIVE
NEWPORT BEACH, CALWORNIA 926GO-6429
trV9PI4QNS i7W A,159 -960O,
TELEX 4tIZZ088 - rACSrMILE (71411 *459-415994
June
3rd
1 9 9 3
Mr. Tony Molum
CitY Of Newport Beach
330 NeWPOrt BouleVard
Newport Beach, California 92663
Re: 5410 Of 8.e�ub� E - Le I_Ear6cej
Dear Mr. Tony:
P. 02
SMSAPC;AQER0 CICISITEFt WCS'r
.AN FRANC:ISCO. CALIFORNIA 04m�,4;305
TS6E PHONE WS) 084-P3700
IpActl"16e: (413) qn4-8701
10 FINS;7, GQU1%RE
LONbQN EWA ILA
Tz4rw�ONE X513-60at
FACSIMIL-C
AKAS4KA TW?N '�OWUR. EAST 18- F-LOQR
2-17122 AKASAKA, MIN4,70-Av
TOKYO 107
TELEPHONE �03) 3S*7�ejaoo
aqS7-07,jej
AVENUIE 1,01JISE j,"n
105Q SRU&9ELS
TC6r,P1140NE: IQZ) e4j-.Qq_3,5
IFACLIM46E
QVR PILE NUME3ER
413,102-236
151-515%
This letter is to 0onfirm our conversation of this
naorning vshe't-ein we requested that you conmence the action
to obtain appr ' �val for the sale of the Reuben E. Lee
parce- L.4eparate from the Balboa Marina. As we discussed, 1 will
come by your Office Monday, June 7, 1993 at 10:00 a.m. so that we
may review a map showing which parcel is to be sold. &is as -
before,- Eddie �Power requested that you senT-him a bill- for-"ihe
$270 application fee.
call. If you have any questions, please don't hasitate to
Sinceraiv,
<2
;Ly
/aul E. Mosley
foF, 01MELVENY & mymRs
PEM *. myh
.A.
Cc*0 JeEfreY J. Wallacet Esq.
Lowell C. Martindale, Jr. , Esq.
TOTAL P.02
400 SOUTH HOPE STREET
LOS ANGELES, CAU FORNIA 90071-2899
TELEPHONE (213) 669-6000
FACSIMILE (213) 669-6407
1999 AVENUE OF THE STARS
LOS ANGELES, CALIFORNIA 90067-6035
TELEPHONE (310) 553-6700
FACSIMILE (310) 246-6779
555 13T. STREET, N.W.
WASHINGTON, D. C. 20004-1109
TELEPHONE (202) 383-5300
FACSIMILE (202) 383-5414
CITICORP CENTER
153 EAST 53R- STREET
NEW YORK, NEW YORK 10022-4611
TELEPHONE (212) 326-2000
FACSIMILE (212) 326-2061
WRITER'S DIRECT DIAL NUMBER
(714) 669-6913
0'MELVENY & MYERS
SUITE 1700
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660-6429
TELEPHONE (714) 760-9600
TELEX 4722088 - FACSIMILE (714) 669-6994
May
17th
1 9 9 3
Mr. Tony Melum
City of Newport Beach
330 Newport Boulevard
Newport Beach, California 92663
Re: Sale of 333 and 341 Bayside Drive
Dear Mr. Melum:
EMBARCADERO CENTER WEST
275 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111-3305
TELEPHONE (415) 984-8700
FACSIMILE (415) 984-8701
10 FINSBURY SQUARE
LONDON EC2A ILA
TELEPHONE (071) 2SG-845i
FACSIMILE (071) 638-8205
AKASAKA TWIN TOWER, EAST 18TH FLOOR
2-17-22 AKASAKA, MINATO-KU
TOKYO 107
TELEPHONE (03) 3587-2800
FACSIMILE (03) 3587-9738
AVENUE LOUISE 106
1050 BRUSSELS
TELEPHONE (02) 647-06-50
FACSIMILE (021 646-47-29
OUR FILE NUMBER
413,102-208
As we previously discussed, enclosed are the originally
executed indemnity letter agreements in connection with the sale
of the above-mentioned properties. If I can be of any further
assistance, please do not hesitate to contact me.
Sincerely,
Lorie Soares Griffen
for 01MELVENY & MYERS
LSG: aj g
Enclosures
CITY OF NEWPORT BEACH
Marine Department
April 29, 1993
TO: MAYOR AND CITY COUNCIL ly
FROM: Marine Department
SUBJECT: HARBOR PERMIT APPLICATION 132-201 BY THE IRVINE
COMPANY TO REVISE THE PERMIT FOR THE COMMERCIAL
MARINA BAYWARD OF 337 EAST COAST HIGHWAY
Recommendation:
If desired, approve the revision subject to the following
conditions:
1. That the applicant prepare a hold harmless agreement
subject to the approval of the City Attorney's office and signed by
the owner of the parcel at the Reuben's Restaurant indemnifying the
City of Newport Beach against any claim for damages and defend the
City in any lawsuit filed by the property owner as a result of the
revision to this Harbor Permit.
2. That mens and womens restrooms remain available in the
Reuben's building for the use of marina tenants, and that should
they cease to be available, alternate facilities will be provided
by the Harbor Permittee.
3. That marina tenants be able to park and have access to the
marina docks from the Reuben's parcel, and that should this access
or parking become unavailable, the Harbor Permittee will find
additional sources subject to the approval of the Marine Department
or reduce the size of the marina operation.
B�ckqround:
This application is before the City Council as required by Section
5.c.3 of the Harbor Permit Policies, which states:
5.c.3 "Prior approval of the City Council will be required
before issuing a permit for shore -connected structures when the
upland abutting property is zoned commercial."
Currently the Irvine Company, through a subsidiary, the California
Recreation Company, operates a commercial marina bayward of several
parcels adjacent to Coast Highway and Bayside Drive. on March 8,
1993, the City Council approved a revision to the commercial Harbor
Permit, which. facilitated the sale of Parcel 4 and 5 as delineated
on the attached exhibit and allowed the Irvine Company to maintain
the marina in front of those parcels.
Parcel 3 in front of the
The -IrVinO 'company now wisha�s-to sell
marina and continue to maintain that portion of the marina bayward
of Parcel 3.
Hist6tiballY,-the- Harbor' Perm it- zone�has been delineated by the�
bayward extension on the side property lines. When a Harbor
Permittee divests himself of the abutting upland property he is
tdqai±ed to-tkdnsfer the' H-arbUr Permit'to the new owner. In this
particular case, the sale of Parcel 4 and 5 meant that the Harbor
Permittee did not retain all ownership of the abutting upland
property, however the Marine Department recommended an approval of
the sale of these two parcels for the following reasons:
(1) all of the upland amenities including parking, trash
disposal, restrooms and access to the docks are on property
retained by the Harbor Permittee,
(2) the Harbor Permittee is retaining ownership of the
majority of the uplands that abut this Harbor Permit,
(3) the waterway in this particular location over which the
marina is situated is not State Tidelands, but is a private
waterway.
The sale of Parcel 3, identified on the attached exhibit, will
change the reasons for allowing that sale very little. With the
sale of Parcel 3, the majority of the upland amenities, including
parking, trash disposal, restrooms" and access of the docks are
still on property retained by the-Earbor Permittee. The Harbor
Permittee is still retaining the m'ajority.of the upland property
that abuts this Harbor Permit and the waterway is still, in this
particular locationf a private waterway and not State Tidelands.
TonytMe7um
Deputy Director
PO
> CITY OF NEWPORT BEACH
r)
-Z RO. BOX 1768, NEWPORT BEACH, CA 92659-1768
Marine Department
- 'C- I F 0 1?X-
April 19, 1993
Ed Powers
C/O California Recreation
1137 Bayside Drive
Corona del Mar, CA 92625
Re: Harbor Permit No. 132-201 (Ruebens Parcel)
Dear Mr. Powers:
The revision to the above permit, which encompasses the sale of one
of the parcels adjacent to the Marina, requires City Council approval.
The fee for this review is $280.00, made out to the City of Newport
Beach.
If you have any questions in this regard, please call me at (714)
644-3044.
Very Truly Yours,
Tony Melum
Deputy Director
TM: I a
3300 Newport Boulevard, Newport Beach
- 2;�jr
241
Agenda Item 15
CITY OF NEWPORT BEACH
Marine Department
April 12, 1993
TOI: MAYOR AND CITY COUNCIL
FROM: 'Marine Department
SUBJECT: HARBOR PERMIT APPLICATION 132-201 BY THE GRC
RESTAURANTS TO DO MAINTENANCE WORK AT REUBEN'S
RESTAURANT ADJACENT TO THE BULKHEAD AT 251 EAST
COAST HIGHWAY
Recommendation:
If desired, approve the application subject to the following
conditions:
1. Approval of the Coastal commission
2. Approval of the Army Corps of Engineers Building
3. Approval of the city of Newpport Beach
Department
Discussion:
This application is before the city- Council as required by Section
5.C.3 of the Harbor Permit Policies,.which states:
5.C.3. "Prior approval of the city council will be required
bef ore issuing a � permit for shore -connected structures when the
upland abutting property is zoned commercial."
Thye "'applicant is proposing repairs I to the Reuben's restaurant
building, specifically that portion that is on pilings over a
private waterway. The repairs will consist of maintenance repair
to existing pilings, existing concrete footings and the replacement
of a rock revettment to support the existing bulkhead and to
stabilize the slope bayward of the bulkhead. most of the work will
be done landward of the existing bulkhead line. A portion of the
rock revettment, approximately 14 feet, will be bayward of the
bulkhead line, beginning at the bulkhead at an elevation of +2 and
tapering to an elevation of -2. The applicant has indicated that
the placement of the rock bayward of the existing bulkhead line is
necessary to get the appropriate support for the bulkhead and that
its bayward distance will not interfere with existing docks or
boating traffic in the marina.
Tony Melum
Deputy Director
March
I�Q �0
1 9 9 3
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
Attention: Mr. Tony Melum
Re: Marina Permits for 333 Bayside Drive
Ladies and Gentlemen:
The Irvine Company, a Michigan corporation ("Irvine"),
as seller, and Marvin 0. Burton, as trustee of the Marvin 0.
Burton Family Trust dated May 25, 1982 ("Buyer"), as buyer, are
the parties to that certain Purchase Agreement and Escrow
Instructions dated as of January 20, 1993, as subsequently
amended (the "Purchase Agreement"), pursuant to which Buyer has
agreed to purchase the real property described therein which is
commonly known as 333 Bayside Drive, Newport Beach, California
(the "Land").
Pursuant to the Purchase Agreement Buyer has released
and relinquished unto Seller any and all littoral rights or other
rights that it may now or hereafter have or claim with respect to
the waterway adjacent to the Land and the marina currently
located thereon owned by Seller or any future improvements
located thereon or any enhancements, repairs or replacements
thereof (collectively, the "Marina").
Buyer hereby consents to the City of Newport Beach
("the City") allowing Irvine to own, use and operate the Marina
adjacent to the Land and to have permits for such ownership, use
and operation. Buyer agrees to indemnify and hold harmless the
City from any and all claims, causes of action, suits, damages,
costs and expenses it incurs as a result of Buyer attempting to
rescind, modify, challenge or chang c4,,consent.
This agreement shall be binding up is heirs,
successors and assigns.
— /Z/ C Ag
MAR,V'IN -U. "rBURTON, AS TRUSTEE OF THE
MAAVIN 0. BURTON FAMILY TRUST
DATED MAY 25, 1982
March
12 G,
T 9 9 3
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
Attention: Mr. Tony Melum
Re: Marina Permits for 341 Bayside Drive
Ladies and Gentlemen:
The Irvine Company, a Michigan corporation ("Irvine"),
as seller, and 341 Bayside Drive, Inc., a California corporation
("Buyer"), as buyer, are the parties to that certain Purchase
Agreement and Escrow Instructions dated as of January 20, 1993,
as subsequently amended (the "Purchase Agreement"), pursuant to
which Buyer has agreed to purchase the real property described
therein which is commonly known as 341 Bayside Drive, Newport
Beach, California (the "Land").
Pursuant to the Purchase Agreement Buyer has released
and relinquished unto Seller any and all littoral rights or other
rights that it may now or hereafter have or claim with respect to
the waterway adjacent to the Land and the marina currently
located thereon owned by Seller or any future improvements
located thereon or any enhancements, repairs or replacements
thereof (collectively, the "Marina").
Buyer hereby consents to the City of Newport Beach
("the City") allowing Irvine to own, use and operate the Marina
adjacent to the Land and to have permits for such ownership, use
and operation. Buyer agrees to indemnify and hold harmless the
City from any and all claims, causes of action, suits, damages,
costs and expenses it incurs as a result of Buyer attempting to
rescind, modify, challenge or change in any way such consent.
'This agreement shall be binding upon the undersigned's heirs,
successors and assigns.
341 BAYSIDMERIVI, INC
a Californ cor o6tji
";
l:
,,
,,
400 SOUTH HOPE STREET
LOS ANGELES, CALI FORNIA 90071-2899
TELEPHONE (213) 669-6000
FACSIMILE (213) 669-6407
1999 AVENUE OF THE STARS
LOS ANGELES, CALIFORNIA 90067-603S
TELEPHONE (310) SS3-6700
FACSIMILE (310) 246-6779
555 13TH STREET, N.W.
WASHINGTON, 0. C. 20004-1109
TELEPHONE (202) 383-5300
FACSIMILE (202) 383-5414
CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4611
TELEPHONE (212) 326-2000
FACSIMILE (212) 326-2061
WRITER'S DIRECT DIAL NUMBER
(714) 669-6913
VIA MESSENGER
O'MELVENY & MYERS
SUITE 1700
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660-6429
TELEPHONE (714) 760-9600
TELEX 4722088 - FACSIMILE (7W 669-6994
March
22nd
1 9 9 3
Mr. Tony Melum
City of Newport Beach
330 Newport Boulevard
Newport Beach, California 92663
Re: Sale of 333 and 341 Bayside Drive
Dear Mr. Melum:
EMBARCADERO CENTER WEST
27S BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111-330S
TELEPHONE (415) 984-8700
FAC5JMILE (415) 984-8701
10 FINSBURY SQUARE
LONDON EC2A 11-A
TELEPHONE (071) 256-84SI
FACSIMILE (071) 638-8205
AKASAKA TWIN TOWER, EAST 16- FLOOR
2-17-22 AKASAKA, MINATO-KU
TOKYO 107
TELEPHONE (03) 3587-2800
FACSIMILE (03) 3587-9738
AVENUE LOUISE 106
IOSC BRUSSELS
TELEPHONE (02) 647-06-50
FACSIMILE (02) 646-47-29
OUR FILE NUMBER
413,102-208
Enclosed is the final form of the indemnity side letter
agreement in connection with the sale of 333 and 341 Bayside
Drive. The enclosed letters combine the indemnity provision that
you previously approved with two paragraphs which define the
various terms used in the indemnity provision.
Since you have already approved the indemnity language
that is contained in the side letter! the form of the enclosed
letters should be acceptable to you. If they are not, however, I
would appreciate if you would let me know immediately since we
are planning to close the sales of 333 and 341 Bayside Drive by
Tuesday, March 23, 1993.
Thank you for your assistance in this matter.
Sincerely,
lj�-
Lorie Soares Griffen
for 01MELVENY & MYERS
LSG:ajg
Enclosures
cc: Mr. Stephen Brahs (w/out encl.)
Ms. Bonnie Reider (w/out encl.)
James Stiepan, Esq. (w/out encl.)
March
1 9 9 3
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
Attention: Mr. Tony Melum
Re: Marina Permits for 333 Bayside Drive
Ladies and Gentlemen:
The Irvine Company, a Michigan corporation ("Irvine")
as seller ' and Marvin 0. Burton, as trustee of the Marvin 0.
Burton Family Trust dated May 25, 1982 ("Buyer"), as buyer, are
the parties to that certain Purchase Agreement and Escrow
Instructions dated as of January 20, 1993, as subsequently
amended (the "Purchase Agreement"), pursuant to which Buyer has
agreed to purchase the real property described therein which is
commonly known as 333 Bayside Drive, Newport Beach, California
(the "Land").
Pursuant to the Purchase Agreement Buyer has released
and relinquished unto Seller any and all littoral rights or other
rights that it may now or hereafter have or claim with respect to
the waterway adjacent to the Land and the marina currently
located thereon owned by Seller or any future improvements
located thereon or any enhancements, repairs or replacements
thereof (collectively, the "Marina").
Buyer hereby consents to the City of Newport Beach
("the City") allowing Irvine to own, use and operate the Marina
adjacent to the Land and to have permits for such ownership, use
and operation. Buyer agrees to indemnify and hold harmless the
City from any and all claims, causes of action, suits, damages,
costs and expenses it incurs as a result of Buyer attempting to
,rescind, modify, challenge or change in any way such consent.
This agreement shall be binding upon the undersigned's heirs,
successors and assigns.
MARVIN 0. BURTON, AS TRUSTEE OF THE
MARVIN 0. BURTON FAMILY TRUST
DATED MAY 25, 1982
March
1 9 9 3
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
Attention: Mr. Tony Melum
Re: Marina Permits for 341 Bayside Drive
Ladies and Gentlemen:
The Irvine Company, a Michigan corporation ("Irvine"),
as seller, and 341 Bayside Drive, Inc., a California corporation
("Buyer"), as buyer, are the parties to that certain Purchase
Agreement and Escrow Instructions dated as of January 20, 1993,
as subsequently amended (the "Purchase Agreement"), pursuant to
which Buyer has agreed to purchase the real property described
therein which is commonly known as 341 Bayside Drive, Newport
Beach, California (the "Land").
Pursuant to the Purchase Agreement Buyer has released
and relinquished unto Seller any and all littoral rights or other
rights that it may now or hereafter have or claim with respect to
the waterway adjacent to the Land and the marina currently
located thereon owned by Seller or any future improvements'
located thereon or any enhancements, repairs or replacements
thereof (collectively, the "Marina").
Buyer hereby consents
("the City") allowing Irvine to
adjacent to the Land and to have
and operation. Buyer agrees to
City from any and all claims, ca
costs and expenses it incurs as
rescind, modify, challenge or
This agreement shall be bindin
successors and assigns.
to the City of Newport Beach
own, use and operate the Marina
permits for such ownership, use
indemnify and hold harmless the
uses of action, suits, damages,
a result of Buyer attempting to
in any way such consent.
the undersigned's heirs,
change
g upon
341 BAYSIDE DRIVE, INC.,
a California corporation
By:
Its:
By:
Its:
400 SOUTH HOPE STREET
LOS ANGELES, CAI-IFORNIA 9007[-2899
TELEPHONE (213) 669-6000
FACSIMILE (213) 669-6407
1999 AVENUE OF THE STARS
LOS ANGELES, CALIFORNIA 90067-6035
TELEPHONE (310) S53-6700
FACSIMILE (310) 246-6779
555 13TH STREET, N.W.
WASHINGTON, 0. C. 20004-1109
TELEPHONE (202) 383-5300
FACSIMILE (202) 383-5414
CITICORP CENTER
153 EAST 53- STREET
NEW YORK, NEW YORK 10022-4611
TELEPHONE (212) 326-2000
FACSIMILE (2121326-2061
WRITER'S DIRECT DIAL NUMBER
(714) 669-6913
VIA MESSENGER
O'MELVENY & MYERS
SUITE 1700
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660-6429
TELEPHONE (714) 760-9600
TELEX 4722088 - FACSIMILE (714) 669-6994
Mr. Tony Melum
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
Re: Balboa Marina
Dear Tony:
March
19th
1 9 9 3
EMBARCADERO CENTER WEST
275 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111-3305
TELEPHONE (415) 984-8700
FACSIMILE (41S) 984-8701
10 FINSBURY SQUARE
LONDON EC2A ILA
TELEPHONE (071) 256-8451
FACSIMILE (071) 638-8205
AKASAKA TWIN TOWER, EAST 181- FLOOR
2-17-22 AKASAKA, MINATO-KU
TOKYO 107
TELEPHONE (03) 3587-2800
FACSIMILE (03) 3587-9738
AVENUE LOUISE 106
ICSO BRUSSELS
TELEPHONE (02) 647 -06 -SO
FACSIMILE (02) 648-47-29
OUR FILE NUMBER
413,102-236
As we discussed on Thursday, enclosed please find a
copy of the existing Reciprocal Grant of Easements that deals
with parking on the property serving the Balboa Marina, Reuben's
and Charlie Brown's. Also enclosed is a copy of the First and
Second Amendments. Exhibit D to the Second Amendment contains a
good depiction of the actual parking situation at the property.
Please be aware that a further amendment of the
enclosed documents will be prepared that extends the parking
arrangement at the property beyond the expiration of the existing
restaurant leases and that deals with restrooms and access. Once
the proposed amendment has been prepared, I will forward a draft
to you for your review.
If you have any questions, please don't hesitate to
call me directly. Thank you for your attention to this matter.
Sincerely,
Paul E. Mosley
for OIMELVENY & MYERS
PEM: myh
Enclosures
cc: Mr. Russell Fluter
Mr. Stephen Brahs
Jeffrey J. Wallace, Esq.
PARKING
RELIBEN'S RESTAURA I NT
PARKING
AREA OF
0 �VIC COAST
EXISTING
Or
14E
EXISTING
�EVETM EN
BULKHEAD
PROJECT LOCATION
REUBEN'S RESTAURANT
251 COAST HIGHWAY
NEWORT BEACH . CA
VICINITY MAP
0
0 300 600 1200 2400
SCALE IN, FEET
PARKING
RELIBEN'S RESTAURA I NT
PARKING
AREA OF
CONSTRUCTION
EXISTING
BULKHEAD
14E
EXISTING
�EVETM EN
BULKHEAD
2
�4—
0
-4-1
F)aSTi
OA'nNG DOCK
PURPOSE: REINSTITUTING NEW REVETMENT PLAN VIEW PROPOSED SLOPE STABILIZATION
FOR SLOPE STABILIZATION 0 20 40 80 REVETMENT AND STRUCTURAL REPAIR
DATUM: MLLW L I IN: NEWPORT BEACH, CA
ADJACENT PROPERTY OWNERS: AT: NEWPORT SAY
1. THE IRVINE COMPANY 1"=40' COUNTY OF: ORANGE
2. THE IRVINE COMPANY OF VIRGINIA APPLICATION BY: CASH & ASSOCIATES
3. OCCUPANT RESTAURANT ENTERPRISES GROUO. INC
ATTN: WILLIAM BOGER
18831 VON KARMON AVENUE SHEETS 1 OF 2 DATE: 3-18-93
IRVINE, CA 92715
2 —0" THiCK
EXIST'G ARMOR ROCK
RESTAURANT
EXISTING GRADE
6" THICK
UNDERLAYMENT
ROCK
+7.5 L,
0 lc�
0
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M. L L. W.
L-�� v Tu
u— —2 MLLW
0 z —4.0
W �= =1 �jl —5.3
00 C. 1
< 0 —0 —8.3
L� U- 3'-0" MIN
0.0' 20.5' 34.0' 47.0' 61.0'
SECTION A -A
PURPOSE: REINS11TUTING NEW REVETMENT SECTION VIEW PROPOSED SLOPE STABILIZATION
FOR SLOPE STABILIZATION 0 3 6 12 24 REVETMENT AND STRUCTURAL REPAIR
DATUM: MLLW IN: NEWPORT BEACH. CA
ADJACENT PROPERTY OWNERS: AT: NEWPORT BAY
1. THE IRVINE COMPANY i"=12' COUNTY OF: ORANGE
2. THE IRVINE COMPANY OF VIRGINIA APPLICATION BY: CASH & ASSOCIATES
3. OCCUPANT RESTAURANT ENTERPRISES GROUP, 11 INC
ATTN: WILLIAM BOGER
18831 VON KARMON AVENUE
IRVINE, CA 92715 SHEETS 2 OF 2 DATE: 3-18-93
400 SOUTH HOPE STREET
LOS ANGELES, CALI FORNIA 90071-2899
TELEPHONE (2:3� 669-6000
FACSIMILE 2 3 669-6407
1999 AVENUE OF THE STAR
LOS ANGELES, CALIFORNIA go 067-6035
TELEPHONE (310) SS3-6700
FACSIMILE (310) 246-6779
555 13TH STREET, N.W.
WASHINGTON, 0. C. 20004-1109
TELEPHONE (202) 363-5300
FACSIMILE (202) 383-5414
CITICORP CENTER
153 EAST 53R. STREET
NEW YORK, NEW YORK 10022-4611
TELEPHONE (212) 326-2000
FACSIMILE (212) 326-2061
WRITER'S DIRECT DIAL NUMBER
(714) 669-6913
VIA MESSENGER
O�MELVENY & MYERS
SUITE 1700
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660-6429
TELEPHONE M4) 760-9600
TELEX 4722088 - FACSIMILE (714) 669-6994
Mr. Tony Melum
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
Dear Tony:
March
18th
1 9 9 3
Re: Sale of 333 and 341 Bayside Drive
/ -,� Z,
. . . .....................
EMBARCADERO CENTER WEST
275 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111-330S
TELEPHONE (415) 984-8700
FACSIMILE (415) 984-8701
10 FINSBURY SQUARE
LONDON EC2A ILA
TELEPHONE (07o a56-84SI
FACSIMILE (071) 638-8205
AKASAKA TWIN TOWER, EAST 18TH FLOOR
2-17-22 AKASAKA, MINATO-KU
TOKYO 107
TELEPHONE (03) 3587-2800
FACSIMILE (03) 3587-9738
AVENUE LOUISE 106
1050 BRUSSELS
TELEPHONE (02) 647-06-50
FACSIMILE (02) 646-47-29
OUR FILE NUMBER
413,102-208
As we discussed, the Buyers of 333 and 341 Bayside
Drive are agreeable to providing the City of Newport Beach with
an indemnity with respect to future actions that they may take
challenging The Irvine Company's retention of the littoral rights
and the amendments of the marina permits in connection therewith.
The Buyers have proposed that the following indemnity provision
(with appropriate definitions) would be contained in a letter
addressed to the City of Newport Beach and signed by the Buyers
of the property:
"NOW THEREFORE, Buyer hereby consents to the City of
Newport Beach ("the City") allowing Irvine to own, use
and operate the Marina adjacent to the Land and to have
permits for such ownership, use and operation. Buyer
agrees to indemnify and hold harmless the City from any
and all claims, causes of action, suits, damages, costs
and expenses it incurs as a result of Buyer attempting
to rescind, modify, challenge or change in any way such
consent. This agreement shall be binding upon the
undersigned's heirs, successors and assigns."
While the enclosed language is preliminary only, we
would appreciate it if you could let me know, at your earliest
possible convenience, whether or not the enclosed language is
Page 2 - Mr. Tony Melum - March 18, 1993
acceptable to you. We are, as you know, anxious to resolve this
issue as soon as possible.
Sincerely,
C��
Lorie Soares Griffen
for OIMELVENY & MYERS
LSG:ajg
Enclosures
cc: Mr. Stephen Brahs
James Stiepan, Esq.
Lowell C. Martindale Jr., Esq.
Agenda Item No. 26
CITY OF NEWPORT BEACH
7
Marine Department
MA, 10, 1
3
TO': MAYOR AND CITY COUNCIL
FROM: Marine Department
SUBJECT: HARBOR PERMIT APPLICATION 132-201 BY THE IRVINE
COMPANY TO REVISE THE PERMIT FOR THE COMMERCIAL
MARINA BAYWARD OF 337 EAST COAST HIGHWAY
Recommendation:
If desired, approve the revision subject to the following
conditions:
1. That the applicant prepare a hold harmless agreement
subject to the approval of the City Attorney's office and signed by
the owner of the parcel at the Reuben's Restaurant indemnifying the
city of Newport Beach against any claim for damages and defend the
city in any lawsuit.filed by the property owner as a res - ult of the
revision to this Harbor Permit. restrooms remain available in the
2. That mens and womens
Reuben's building for the use of marina tenants, and_ that should
they cease to be available, alternate facilities will be provided
by the Harbor Permittee. rk and have access to the
3. That marina tenants be able to pa
marina docks from the Reuben's parcel, and that should this access
or parking become unavailable, 'the Harbor Permittee will find
additional sources subject to the approval of the Marine Department
or reduce the size of the marina operation.
This application is before the city Council as required by Section
5.c.,3 of the Harbor Permit Policies, which states:
5.c..3 "Prior approval of the City Council will be required
before issuing a permit for shore -connected structures when the
upland abutting property is zoned commercial."
Currently the Irvine Company, through a subsidiary, the California
Recreation Company, operates a commercial marina bayward of several
parcels adjacent to Coast Highway and Bayside Drive. on March 8,
1993,'the city Council approved a revision to the commercial Harbor
Permit, which facilitated the sale of Parcel 4 and 5 as delineated
on the attached exhibit and allowed the Irvine Company to maintain
the marina in front of those parcels.
The Irvine company now wishes to sell Parcel 3. in front of the
and continue to ma intain that.portion_ofl-the marina bayward
of Parcel 3.
Historically, the Harbor � Permit zone has been delineated by the
bayward-,ex-tens ion- -,on,,.. the- ,:s�idel,;,pro-per-i--y�-,,lines ...... � When. a - Harbor—
Permittee divests himself of the abutting upland property he is
required to transfer the Harbor Permit to the new owner. In this
�particular- case), -the,-sale-Of - Parcel- 4, -and -5- meant that the Harbor
Permittee did not retain all ownership of the abutting upland
property, however the Marine Department recommended an approval of
the sale of these two Parcels for the following reasons:
(1) all of the upland amenities including parking, trash
disposal, restrooms and access to the docks are on property
retained by the Harbor Permittee,
(2) the Harbor Permittee is retaining ownership of the
majority of the uplands that abut this Harbor Permit,
(3) the waterway in this particular location over which the
marina is situated is not State Tidelands, but is a private
waterway.
The sale of Parcel 3, identified on the attached exhibit, Will
change the reasons for allowing that sale very little. With the
sale of Parcel 3, the majority of the upland amenities, including
parking, trash disposal, restrooms and access of the docks are
still on property retained by the Harbor Permittee. --The Harbor
Permittee is still retaining the majority of the upland property
. s still, in this
that abuts this Harbor Permit.and the waterway I
particular location, a private waterway and not State Tidelands.
Tony MeXum
Deputy Director
CITY OF NEWPORT BEACH
Marine Department
March 8, 1993
TO: MAYOR AND CITY COUNCIL
FROM: Marine Department Zw—
SUBJECT: HARBOR PERMIT APPLICATION 132-201 BY THE IRVINE
COMPANY TO REVISE THE PERMIT FOR THE COMMERCIAL
MARINA BAYWARD OF 337 EAST COAST HIGHWAY
Recommendation:
If desired, approve the revision subject to the following
conditions:
1. That the applicant shall prepare a hold harmless agreement
subject to the approval of the City Attorney -*s office, indemnifying
the City of Newport Beach against any claim for damages and defend
the City in any lawsuit filed by the property owner at 333 and 341
Bayside Drive as a result of this revision to the Harbor Permit.
Background:
This application is before the City Council as required by Section
5.C.3 of the Harbor Permit Policies, which states:
I
5.C.3. "Prior approval of the City Council will be required
before - issuing a permit for shore -connected structures when the
upland abutting property is zoned commercial.
Currently the Irvine Company, through a subsidiary the California
Recreation Company, operates a commercial marina bayward of several
parcels adjacent to Coast Highway and Bayside Drive. The exhibit
delineating the parcels in question and the marina adjacent to
those parcels is attached'i.
The Irvine Company wishes to sell the parcels identified on the
Exhibit as 4 and 5, street addresses of 333 and 341 Bayside Drive.
Historically the harbor permit zone has been defined by the bayward
extension of the side property lines. When a harbor permittee
divests himself of the abutting upland property he is required to
transfer the Harbor Permit to the new owner. In this particular
case, with the sale of the two parcels listed above, the permit
zone will not change; it will be defined as in the past except
that the permittee will not own all of the upland property. Staff
is recommending approval of this application for the following
reasons:
(1) all of the upland amenities including parking, trash
disposalt restrooms and access to the docks are on property
retained by the Harbor Permittee,
(2) the Harbor Permittee is retaining ownership of the major
part of the uplands that abut this harbor permit,
(3) the waterway in this particular location over which the
marina is situated, is not State Tidelands, but is a private
waterway.
Tony Melum
Deputy Director
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MATERIAL TRANSMITTE
COMMENTS:.
A TOTAL OF PAGES WILL BE TRANSMITTED
(INCLUDING THIS-1COVER LETTER),
IF YOU DO NOT RECEIVE ALL PAGESp OR IF THE COPY IS
NOT LEGIBLEt PLEASE CALL OUR OFFICE (714) 644-3044:
AS SOON AS POSSIBLE
OUR TELECOPIER NUMBER: (71.4).673-3056
li
400 SOUTH HOPE STREET
LOS ANGELES, CALI FORN I A 90071-2899
TELEPHONE (213) 669-6000
FACSIMILE (2iZ� 669-6407
1999 AVENUE OF THE STARS
LOS ANGELES, CALIFORNIA 90067-603S
TELEPHONE (310) 553-6700
FACSIMILE (310) 246-6779
555 13TH STREET, N.W.
WASHINGTON, 0. C. 20004-1109
TELEPHONE (202) 383-5300
FACSIMILE 1202) 3e3-5414
CITICORP CENTER
153 EAST 53-- STREET
NEW YORK, NEW YORK 10022-4611
TELEPHONE (212) 326-2000
FACSIMILE (212) 326-2061
WRITER'S DIRECT DIAL NUMBER
(714) 669-6913
VIA MESSENGER
Q'MELVENY & MYERS
SUITE 1700
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660-6429
TELEPHONE 1714) 760-9600
TELEX 4722088 - FACSIMILE (7J4) 669-6994
Mr. Tony Melum
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
February
28th
1 9 9 3
Re: Sale of 333 and 341 Bayside Drive
Dear Mr. Melum:
EMBARCADERO CENTER WEST
275 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111-3305
TELEPHONE (415) 984-8700
FACSIMILE (415) 984-8701
10 FINSBURY SQUARE
LONDON EC2A ILA
TELEPHONE (071) 2S6-8451
FACSIMILE (071) 638-8205
AKASAKA TWIN TOWER, EAST 18T- FLOOR
2-17-22 AKASAKA, MINATO-KU
TOKYO 107
TELEPHONE (03) 3567-2800
FACSIMILE (03) 3587-9738
AVENUE LOUISE E06
1050 BRUSSELS
TELEPHONE (02) 647-06-50
FACSIMILE (02) 646-47-29
OUR FILE NUMBER
413,102-208
As you requested, enclosed are copies of the Parcel
Maps for 333 and 341 Bayside Drive, showing the locations of such
parcels.
If I can be of any further assistance, or if you need
any additional information in connection with the March 8, 1993
City Council Meeting for the amendment of The Irvine Company's
marina permits, please do not hesitate to contact me.
Sincerely,
Lorie Soares Griffen
for 01MELVENY & MYERS
LSG: aj g
Enclosures
cc: Mr. Stephen Brahs (w/encl.)
James Stiepan, Esq. (w/encl.)
Pf-�
(0)
� �/- -I -27�7 I t � ;
CITY OF. NEWPORT BEACH
P.O. BOX 1768, NEWPORT BEACH, CA 92659-1768
Marine Department
February 19, 1993
Ed Powers
California Recreation Company
1137 Bayside Drive
Corona del Mar, CA 92625
Re: Revision permit for the marina at 337 E. Coast Highway
Dear Mr. Powers:
The changes for the above marina boundaries necessitated by the sale of
the Irvine Company property at 333 and 341 Bayside Drive requires City
Council approval in the form of a revision to an existing marina.
The fee to process this revision is $280,.payable to the City of Newport
Beach.
Very truly yours,
To ny�Me I u
Tidelands Administrator
3300 Newport Boulevard, Newport Beach
400 SOUTH HOPE STREET
LOS ANGELES, CALI FORNIA 90071-2699
TELEPHONE (213) 669-6000
FACSIMILE (213) 669-6407
1999 AVENUE OF THE STARS
LOS ANGELES, CALIFORNIA 90067-603S
TELEPHONE (310) S53-6700
FACSIMILE (310) 246-6779
SSS 13T. STREET, N.W.
WASHINGTON, D. C. 20004-1109
TELEPHONE (202) 383-S300
FACSIMILE (202) 383-5414
CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4611
TELEPHONE (212) 326-2000
FACSIMILE (212) 326-2061
WRITER'S DIRECT DIAL NUMBER
(714) 669-6913
OWELVENY & MYERS
SUITE 1700
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660-6429
TELEPHONE (714) 760-9600
TELEX 4722088 - FACSIMILE (7A) 669-6994
Mr. Tony Melum
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
February
7th
1 9 9 3
Re: Sale of 333 and 341 Bayside Drive
Dear Mr. Melum:
EMBARCADERO CENTER WEST
275 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111-3305
TELEPHONE (415) 984-8700
FACSIMILE (415) 984-8701
[0 FINSBURY SQUARE
LONDON EC2A ILA
TELEPHONE (071) 256-8451
FACSIMILE (071) 6 B-8205
AKASAKA TWIN TOWER, EAST ISTH FLOOR
2-17-22 AKASAKA, MINATO-KU
TOKYO 107
TELEPHONE (03) 3587-2800
FACSIMILE (03) 3587-9738
AVENUE LOUISE 106
1050 BRUSSELS
TELEPHONE (02) 647-06-50
FACSIMILE (02) 646-47-29
OUR FILE NUMBER
413,102-208
As we discussed on Friday, February 5, 1993, this
letter will confirm The Irvine Company's desire to have the
proposed sale of 333 and 341 Bayside Drive considered during the
March 8, 1993 City Council Meeting. If there is anything further
that The Irvine Company needs to do in connection with the
consideration of this matter, please let me know at your earliest
possible convenience.
We will contact you after the March 8 City Council
Meeting in order to determine the decision of the City Council.
Thank you once again for your assistance in this matter.
Sincerely,
Lorie Soares Griffen
for 01MELVENY & MYERS
LSG:ajg
cc: Mr. Stephen Brahs
James Stiepan, Esq.
Lowell C. Martindale Jr., Esq.
400 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071-2899
TELEPHONE (213) 669-6000
FACSIMILE (213) 669-6407
1999 AVENUE OF THE STARS
LOS ANGELES, CALIFORNIA 90067-6035
TELEPHONE (310) 5S3-6700
FACSIMILE (310) 246-6779
555 13TH STREET, N.W.
WASHINGTON, D. C. 20004-1109
TELEPHONE (202) 383-S300
FACSIMILE (202) 383-5414
CITICORP CENTER
153 EAST 53-- STREET
NEW YORK, NEW YORK 10022-4611
TELEPHONE (212) 326-2000
FACSIMILE (212) 326-2061
WRITER'S DIRECT DIAL NUMBER
(714) 669-6913
VIA MESSENGER
0'MELVENY & MYr-RS
SUITE 1700
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660-6429
TELEPHONE (714) 760-9600
TELEX 4722Oa8 - FACSIMILE (714) 669-6994
Mr. Tony Melum
City of Newport Beach
330 Newport Boulevard
Newport Beach, CA 92663
February
3rd
1 9 9 3
Re: Sale of 333 and 341 Bayside Drive
Dear Mr. Melum:
EMBARCADERO CENTER WEST
275 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 941ll-3305
TEI-EPHONE (415) 984-8700
FACSIMILE (415) 984-8701
10 FINSBURY SOUARE
LONDON EC2A ILA
TELEPHONE (071) 256-8451
FACSIMILE (071) 638-820S
AKASAKA TWIN TOWER, EAST ISTH FLOOR
2-17-22 AKASAKA, MINATO-KU
TOKYO 107
TELEPHONE (03) 3587-2800
FACSIMILE (03) 3587-9738
AVENUE LOUISE 106
1050 BRUSSELS
TELEPHONE (02) 647-06-50
FACSIMILE (02) 646-47-29
OUR FILE NUMBER
413,102-208
As we discussed earlier today, The Irvine Company (whom
we represent) has entered into Purchase Agreements for the sale
of 333 and 341 Bayside Drive (the office building and Yankee
Tavern Restaurant adjacent to the Balboa Marina). We would like
confirmation from the City that The Irvine Company's marina
permits will not be affected by the sale of these properties.
For your convenience, I have enclosed complete copies of the
Purchase Agreements for the two transactions and I have marked
the relevant provisions relating to the marinas.
As you will see, the Purchase Agreements and related
documents are quite specific that the buyers of the property have
no rights with respect to the Balboa Marina and that The Irvine
Company retains all of its rights with respect thereto. In
addition, the parking facilities and restroom facilities which
are used in connection with the Balboa Marina will be unaffected
by this transaction.
As I mentioned, it is currently contemplated
sale will close at the end of the month. Accordingly,
appreciate your review of the enclosed documents, and
confirmation that The Irvine Company's marina permits
that the
we would
will not be
Page 2 - Mr. Tony Melum - February 3, 1993
affected by the transaction set forth therein, at your earliest
possible convenience.
Thank you in advance for your cooperation.
Sincerely,
I
YIAA��
Lorie Soares Griffen
for 01MELVENY & MYERS
LSG: aj g
Enclosures
cc: Mr. Stephen Brahs (w/out encl.)
James Stiepan, Esq. (w/out encl.)
Lowell C. Martindale Jr., Esq. (w/out encl.)
STATE OF
ss.
COUNTY OF
On the A -d day of &&�'be'- , 1991, before me, the
undersigned, a Notary Publ:ic, in and for said State and County,
personally appeared A:oedepie-lc 0. Sy-ans
and ClQrt"Ce W - 66rikel^ . personally known to me
(or proved to me on the basis of satisfactory evidence) to be
the persons who executed the within instrument as the-v/;te'
President and Ass/S.Agn't Secretary, on behalf of THE IRVINE
COMPANY, a Michigan corporation, the corporation therein named,
and acknowledged to me that such corporation executed the
within instrument pursuant to its bylaws or a resolution of its
board of directors.
WITNESS my hand and official seal.
s"n
Notary Puy, ic
""M
-S'ERA
(SEAL) OFFIM �D
AUDREY M. POPE
NOTARY PUBLJC - CALTORNIA
ORANGE COUNTY
.y 5 . 19
x0f, My Comm. Expires KTf 25, 1993
CONSENT AND AGREEMENT FOR SUBORDINATION
The undersigned, The Prudential Insurance Company of
America, a New Jersey corporation ("Prudential"), as
beneficiary under that certain deed of trust recorded
September 7, 1983 as Instrument Number 83-391352 of the
official records of orange County, California (the "Deed of
Trust"), which Deed of Trust creates a lien or charge on a
portion of the "Easement Area" described in the foregoing
Reciprocal Grant of Easements, hereby consents to the terms and
conditions of the foregoing Second Amendment to Reciprocal
Grant of Easements and to the execution and recordation of said,
instrument.
Notwithstanding the prior recordation of the Deed of Trust,
Prudential hereby further agrees that the Deed of Trust is
subordinate and subject to the Reciprocal Grant, of Easements as
amended by the First Amendment and the Second Amendment to
Reciprocal Grant of Easements.
Dated: 1991. The Prudential Insurance
Company of America, a New
Jersey corporation
By:
I t s
Its: A551S rr 5,cif-9-rAlet
STATE OF
ss.
COUNTY OF 40:5 /410-1499
On the 141_-�day of - Ato A, 1991, before me, the
undersigned, a Notary P�blic, in and f said State and County,
persor M.
,Wly appe ed r o., Q -n
and V6 76 b - L. a-, , personally known to me
- K /11 LZ Y7-7 (6 b
(or prov6d to me on the basis of satisfactory evidence) t be
the persons who e ecuted the within instrument as the
President and '755t'- - Secretary, on behalf of THE PRUDENTIAL
INSURANCE COMPAZ�Y OF AMERICA, a New Jersey corporation, the
corporation therein named, and acknowledged to me that such
corporation executed the within instrument pursuant to its
bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
OFFICIAL SEAL
IRENE M. MCDONALD
Notary pumc-Carifornia
LOS ANGELES COUNTY
My Comm. Exp. Oct 16, 1992 Notary Pu lic
(SEAL)
STATE OF eal,'10,00n;4—
) ss.
COUNTY OF Ora nj e-,
On the day of S�L\A # 1991, before me, the
undersigned, a Notary Publicil in' and for said State and County,
pers eared ---E �� 91-7- e -
and personally known to me
(or proved to me on thi basis of satisfactory evidence) to be
the persons who executed the within instrument as the . ViCiP.
President and -AZI Secretary, on behalf of GRC
RESTAURANTS, INC., -*a California corporation, the corporation
therein named, and acknowledged to me that such corporation
executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
WITNESS my hand and.official seal.
jNalf �Public
OFF'C'-"'
DITH L.
PP
0 WR( PUBLIC - CALIFOR NIA
(SEAL) OFFICIAL SEAL
JUDITH L. ERNST
NOT PUBLIC
0 0
RAIANGE COUNTY
M kly comm. 'p.
�'i
y comm. expires JAN 7, 1O.c-4
10
C I ITY Or NEWPOW REACK
14-WRIP19OR PEFR21.1MIT
PERM)SSI
TRUC.T AND
�h
MAINTAIN THE FACtLfP','
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F®RMIT NO.'
CITY HARISUK %;1V%PK1v'9A-T0R
DATE
SPECIAL CONDITIONS:
CONSTRUC-klul"-��,Ii kill,
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DATE ..
SEE ATTACRED SHEET
spacs"'go'.
C404*PS of Cr2gli-:z-ots r4trrn-at 2112-1�-o
Grartge County Permit
Other: 5C-0-2 CC -
11;5 / 5�-D
1. Restrooms being provided in accordance with Section 19 of the Harbor
Permit Policies.
2. All electrical, plumbing, and fire equipment installed shall comply
with Section 18 of the Harbor Permit Policies.
3. Parking be p'rovided as required by Section 17 of the Harbor Permit
Policies, and at no time shall there be less than 95 parking spaces
available for marina use.
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87-138004U
5022-082286-11
RECORDING REQUESTED BY
AND WHEN RECO.ADED RETURN TO:
THE IRVINE COMPANY
550 Newport Center Drive
P. 0. Box I
Newport Beach. CA 02660-0015
C2
Attn: General Counsel - Retail
Arcorow AMESTFU By
TICOR IITLE INS. 00. OF CALIF.
N ()Fi'-!`;AL PECOMS
M.' t Y. CALWOANLA
MAr, Aq 3 1'90'37
P1111
=)e�a -Id--t, c=n
(Space above this line for Recorder's use only)
RECIPROCAL GRANT OF LASEMLNTS
PARTIES AND DATE
This Reciprocal Grant of Easements (the *AgreementO) Is
made this 26L., day of January . 1987. by and between The
Irvine Company. a Michigan corptiration, dba Irvine Retail
'N Properties Company ("Irvine'). STEWART FAMILY TRUST ESTABLISHED
JUNE 3n, 1977 and TRUST UNDER WILL OF CHARCES ULLMAN DECEASED
.(Trust A and Trust B) (collectively "Ste%�art ard Ullmanw) and
4GRACE RESTAURA4T COMPANY. a California corporation. formerly
known as Far West Services. Inc. 4"Grace"). Irvine, Stewart and
Ullman and Grace are sometimes individually referred to herein as
"Owner" and collectively referred to herein an "Owners.*
it. RECITALS
A. Pursudnt to the folicwji,q dezcribed ground leases
(collectively the "Ground Leaseso). Irvine is leasing to Grace
and to Stewart and Ullman an interest In real property located
near tliv Intersection of Parific Coast Highway and Rayside Drive
In the City of Newport Beach. State of Cdlitornia, whicl- -0-^1
property interests (collectively the "Ledsed Premises".
particularly described on Exhibit "A" attdch" hereto and incor-
porated herein by this referencet
1. Ground Leaup dated Jullu 30. 1960 by and
between Irvine. as lessor. and Stvwart atad Ullman, as lessee and
successor- in- interest to Richard 1. Stewatt and Charles Ullman,
at 'amended by that certain Amendment No. I to Lease dated
rebruary 23, 1978.
-I-
87-138040
2. Ground Lease dated October 1, 1963 by and
between Irvine. as lessor. and Grace. as lessee and successor -in -
Interest to John R. McIntosh, James L. Gray and William C.
McIntyre. as amended by thet certain Amendment No. I to Ground
Lease dated April 1%. 1964 and that certain Amendment No. 2 to
Ground Lease dated September 10, 1964.
0. Adjacent to the Leased Premises, Irvine owns that
certain real property described on Exhibit "B" attached hereto
and incorporated herein by this reference (the 'Marina Parcelm)
and that certain real property described on Exhibit *C* attached
hereto and incorporated herein by this reference (the "Corner
Parcel"). The Marina Parcel, the Corner Parcel, and the Leased
Premiser, are sometimes collectively referred to herein as the
"Property."
C. The owners deem It desirable to establish recIpro-
cal easements for access. Ingress and egress to and from, and
parking on. each of their respective parcels, all for the purpose
of convenience In operating their respective business operations
at the Property. The purpose of this Agreement is to set forth
the terms and conditions for the reciprocal easeruents.
Ill. RECIPROCAL ACCESS A14D PARMIUG CASCMCNTS
A. Grant of Casementst
For valuable cvnsideration, receipt of which is
hereby acknowledged. each of the Ownefa hereby graints to th*
other an easement over all of that portion of the Property In
which the ?-!spective parties hold a ground lease Interest or an
ownership interest. as the case may be. except those portions of
the Property upon which improvements. including buildings,
foundations, permanent landscaping. fences and w3lls. are now or
hereafter constructed (the "Casement Ared"). fort
I I ) Vehicular and pedestrian access. Ingress and
egress on and over driveways. walkways and parking areas, and
driveways and walkways At curb cuts and entryways permitting
access to and from publicly dedicated streets and highways. as
the same now exists or ate In the future constructed (the "Access
Easement"); and
(Ill Parking of motor vehicles, motorcycles and
bicycles, In marked patking stalls as they now or from tlette to
time exist, together with the right of vehicular pedestrian
access, ingruss and e9resn to and front such parking stalls (the
"Parking Easement").
Notwithstanding the fofegoing. Lite Idndsodped dreas identified on
Exhibit 'D' attached hereto and incorpotdted herein by this
reference shall comprise a portion of the Casement Area.
-2-
J.
87-138040
Character of Casements
Both the Access Easement and the ParkLng Casement
granted herein &rp APPurlunant to and for
'
the use and bene It of
eacil gf the parcels compr f
IsIng the Property and are non-exclusive
easements
for the purposes &a specified In this Agreement.
C. Use of Casement
The Owners agree not to avail themselves Of rights
under the Access Casement or the Parking Easement
in Such manner
as to unreasonably interfere with the fight&
of the other Owners.
Of the lessees, inviteec and licensees of the other Owners, to
use and enjoy their
respective parcels. None of the Owners shall
have the right to install,
construct, maintain, and shall not
permit the Installation, construction, Or maintenanc&
fence.
wall, building of, any
Impede of cther improvements that may block or
the use of the
easements granted hefein, Including.
specifically, any fence. wall, buildings or
other improvements an
Of Over the common boundary line separating each of the Owner's
parcels.
Control and Operation
Irvine shall at all times during the term of this
Agreement have the sole and exclusive
control of the Easement
Area and may from time to time Prescribe reasonable parking rules
and regulations
for the use Of - the Easement -Area. Irvine may
restrain by appropr;ate Ptoceedings any
use or occupancy of the
Casement Area except as authorized by the rules
and regulations
established by Irvine and may remove any unauthorized person from
the Easement Area
and/or Low away any vehicle parked in violation
Of such rules and regulations. Nothing contained herein
t4eemed
shall be
to create liability upon Irvine for any damage to motor
vehicles of Customern or employees of _4
from
regard loss of property with
to such motor vehicles. The responsibilities of Irvine
under this
Section ftD." Shall be performed by California
Recreation Company, a division
of The Irvine Company 1"cal.
Rec.01 or such other entity as Irvine may designate from time to
time as Its
representative.
MAINTENANCE AND RCPAIR OF EASVYWNT ARLA
A. l0aintenanco and Repair
The Owners hereby agree that Irvine shal: maintain
and repair during the term of this Agreement
Area I all of the Easement
subject to reimbursement for the costs thereof
In
Article -IV.. as provided
B.- below. Such maintenance and repair shall
lncluJu, without limitation.
gardening and landscaping wit
respect to all landscaped areas located within h
the Easement Area.
maintaining and "Pairing all Plumbing and electrical facilities
87-138n4U
which service the Easement Area, repaving, resurfacing. removing,
replacing. painting, restripinq. lighting. cleaning. sweeping,
removing trash (except that Irvine shall not be responsible for
the emptying of any trash dumpsters on the Property). replacing
necessary appropriate directional signs, and markers and lines.
Irvine may also make changes at any time and from time to time in
the size, shape, location, number of Spaces and extent of the
parking facilities in the Easement Atea. The manner in which the
Easement Area shall be maintained and repaired, and the expendi-
tures therefor. shall be at the sole discretion of Irvine. The
areas to be maintained and repaired shail Include, without
limitation. the automobilt- parking areas. driveways. entrances,
exits, sidewalks, pedestrian passageways. and landscaped and
planted areas located within the parking areas and shown shaded
on Exhibit "D" attached tc, thiz Agreement. Nvtwithstanding the
foregoing and except ar. provided in paragraph "H." below with
respect to th(- Cotner rdicelt all taxes, anuessmentst levies,
fees and other governmental charges levied or assessed against or
with respect to the Easement Area, and the cost of insurance with
respect to the Easement Area shall be excluded from the mainte-
nance and repair obligations of Irvine pursuant to this Agreement
and each party shall 1,ay. prior to delinquency. In accordaiice
with the terms of its respective Ground Lease, all such taxes
with respect to that portion of its Leased Premises comprising a
portion of the Easement Area, and shall keep in full force and
effect insurance as required by Article *V." below. Each party
agrees to reimburse Irvine tot the full cost of all repairs in
the Easement Area which ate required. in the opinion of Irvine.
as a result of any. misuse or neglect committed or permitted by
such party or by any guest. invitve or emplvyee of such party or
as a direct result of the rippration of such party's business con-
ducted at the Property. In additi-n. edcli Owner shall maintain
and repair. in accordance with the tofn,s of its respective Ground
Lease, that portion Lot itLo LeaL;vd Nerti-A'ses that does not comprise
a portion of the Easement Area. All of Irvine's maintenance and
repair reuponsibi I !ties as set forth in this Section "A." shall
be administer(d through Cil. Rve. or --uch other entity as Irvine
may deniqnaLe fr;jtti time to time as its repir-L;entative.
Maintenance C�'sts
All costs dnd expense:; inctarred by Irvine in the
repair and maintendiice (,f the Ujo.ettient Area Ithe "Maintenance
Costs"), tegaidless of Whether the Maintenence Costs are incurred
by Irvii,.-- directly in the pertr-rmance of the work itself cr pdid
by Irvine to outside crintractrr:;, shall be allocated proportion-
ately between thf- Owners heretc;. including Irvine. SuCh Mainte-
nance Costs shall include a tee to Irvine fur administrative and
overhead costs in an amount equal to fitteen percent Il!)%) of all
Maintenance Co:;ts. Cacti Owner's dIInCJbIQ shire shall equal the
product of the uuni (of all Maintenance Costs multiplied by d
fract ion, the nUmerator ct which shal I be the square footage of
that portion of the Cdsenit-rit Area in which the respective Owner
-4-
holds a ground lease Interest or ownership interest, dS the case
may be (except that pursuant to the paragraph next below the
numerator shall exclude the square footage of the Corner Parcel
for purposes of determining Irvine's shate of the Maintenance
Costs) which square footage for each Owner is set forth in
Exhibit "E" attached hereto and incorpoteted he.ein by this
reference. and the denominator of which shall equal One Hundred
Fifty -Three Thousand, Five Hundred Sixty-Thfee (153,563) square
feet which constitutes the total square footage of the Easement
Area (excluding the square footage of the Corner Parcel pursuant
to the paragraph next below). or any other reasonable allocation
at; determined by Irvine. The Owners agree that the allocable
shire of the total Maintenance Costs to be paid by each Owner
shall be as set forth on Exhibit "E".
The Owners recognize that the real ptcperty com-
prising the Corner Parcel is unimproved and therefore Is riot
generating any additional use of the Easement Area for the
purposes described in Article "Ill., A." above. Accordingly. the
calculation of edcli pdrty*r, propurtionate share of the Mainte-
nance Costs. as set forth above. excludes the square footage of
the Corner Parcel in order that the Maintenance Costs in connec-
Lion With the Cornet P4rcel are proportionately shared by all of
the parties. includinq Irvine. In addition, the following costs
and expenses incurred with te.%pect to the Corner Parcel shall
also be proportionately :�vared by all of the Owners in the same
manner as Matiliteno"ce C 51_J: fil the C'J5t and expense -of
providiiig public liat.ility, pt ope t t y damage. vandalism and
malicious miscilief injurance with respect to the Curtiet Parcel. in
accordance with Article "V." below. dnd (ij) all taxes. assess-
ments, levies. feeL, and other Qoverrattental charges. including
general and special real property taxes, levied or assersed
against at with rvspe.�t to the Coiner I'dicel.
C. Time of Payment
Each Ownvr Shall pay if- Irvine wittiout demand, on
or bef,;re the first (Ist) day of each calendar quarter of the
term i -I ttis Aqteement. its Share of expenses for the maintenance
and rep.�jr of the Easement Area as estimated or at Irvine's
optiall as actually incurred and billed by I -vine. either in
advance or in arrears, from tirt-e to time, bill. not more often than
quarterly. ut-se payments shall be deemed to be ad4itional rent
under each of tfie vwner*s respective Giound Lea -es and the
failure to pay any such installment art or before such due date.
witliout any deduction at offset. shall carry with it the same
co;isequencer; as such O%jiicr*s failure to pay rent under its
re:;pective Ground Lease.
U. Annaal Adjustment
Sulj:�.!quent to the end of e-.jctl Calunddr year ot
IrvItle's fiscal yvar, at Irvine's tptit,n. Irvine :;hall futnish
-12-
a
4.
a
87-138C40
4. each Owner with a statemeni of the actual amount of each Owner's
share o f expenses for the preceding period. If the total amount
the actual amount due from such
paid by any Owner is less than
Owner, such Owner shall pay to Irvine the difference within ten
0 ---% after the date of the statement. Any exccc-- of the
due from su ch
am�unt paid by any 061—dctudj, amount
oext coming due.
Owner shall be crediLU- aVdIIIS1, J11titdiiIIII
E. interest and Late Charges
in addition to Irvine's right to exercise the
remedies set forth In the respective Ground Less*& relating to an
in the
Owner's failure to pay rent under such Ground Leases,
lolls time to pay Its
ev4nt that Any Owner or refuses at any
the Maintenance Costs when due, then, after written
shar* Of
demand and failuie to pay within ten (10) days after receipt of
such demand. legal action may be Instituted against the
defaulting owner for reimbursement, and the amount due from such
defaulting owner shall bear Interest at the rate of five 15)
discount rate of Interest
percentage points over the then current
from time to time by the rederal Reserve Bank, San
as announced
rrancisco. California (the "Interest Rate") from the date such
payment Is due until paid. During the period of any delinquency
hereunder, the interest Rate shall be adjusted quarterly. In no
than the
shall the rate of Interest hereunder be greater
event addition to lost
by law. In
highest rate then allowable
interest. a late payment by an Owner will also cause Irvine to
accrue other costs not contemp lated in this Agreement. the exact
be difficult and impracticable to
amount of which will extremely
ascertain. Such other costs include, but are not limited to.
it
processing, administrative and accounting costs. Accordingly,
not be received
an Owner's share of Maintenance Costs shall
ten (10) days after such aluoul't shall be due, the
within to ten
d,..dalting owner shall also pay a late charge equal
The hereby agree
percent (101) of guc.. overdue amount. parties
late charge represents a fair a nd reasonable estimate
that such
of the costs Iry I ne will incur in processing such delinquent
late
payment by the defaulting owner and that the payment of A
Interest are distinct and separate from
charge and the payment of
one another in that the payme nt of interest is to compensate (or
the defaulting owner, while the
the use of Irvine's money I
for the additiona
payment of a late charge 18 to compensate
administrative expense In. handling and 'lucessing a delinquent
p
payment.
V. INSURANCC
-)ntrdry contained
Notwithstdnding anything to the c.
any Ground Lease, each Owner at Its sole cost and expense and
*Eff6ctive Date" Jas defined below), agrees
commencing as of the
and keep In full --force and effvct for so long as each
to pr ocure
Owner Is a party to thii Agreement lite follOwI119 types Of
insurance with re �spect to- tha t portion of the Casement Area over
-0.
-6-
Y
d
10
Jai Comprehensive liability insurance with limits of
not less than One Million Dollars J$1,000,000) Combined single
limit bodily injury, personal Injury, death and property damage
liability per occurrence or current limit carried by the
procuring partye whichever is greater, Insuring against any and
all liability which Is occasioned In whole or In part by the
procuring party with respect to the use of the Casement Area by
such party and its employees, guests, Invitees and represent&-
tIves. rurther, all comprehensive liability Insurance shall
include. but not be limited to. personal injury, blanket con-
tractual. crocs-liability and severability of interest clauses,
producL/completed operations, broad form property damage,
Independent contractors, owned, non -owned and hired vehicles and,
if alcoholic beverages are served, sold, consumed or obtained
liquor liability.
anywhere on the Leased Premises,
(b) Worker's compensation coverage as required by law.
t-g-ther with employer's liability coverage. and waiver by each
owner's insurer of any right of subrogation against any addl-
tional insureds by reason of any payment pursuant to such
coverage.
Each policy shall name the Owners aa additional insureds
and shall be for the mutual benefit and prQtection of all of the
Owners. Cortificates evidencing the above-described insurance
coverage shall be delivered to each Owner within ten (10) days
following the execution of this Agreement. Each policy shall
also provide that It may not be cancelled or subject to reduction
of coveraqe or other mcdification except after thirty 130) days'
prior written notice to each owner. All public liability.
prcperty damage and other casualty policies sha I I be written
as primary policies and any itisurance carried by the other Owners
shall be non-contributing with such policies.
V1. INDIN1111Y
V4ch Owner hereby agrees to n emni:y. detend and hold
the other owilers ivittiiely harmless from and against any and all
liabilities. demands. actions. losses or claims for d.%magez for
I.trfsQnal injury (including bodily injusy and death). property
damage Jincluding damage to property of all of the owners). or
other costs ancf charges. including attorneys' fees, arising out
of or caused all or in part by the use ct the Casement Area by
such Owner and such Owner's employeeso Quests# invitees and
representatives of from any breach of this Agreement by such
Owner.
-7-
zc_
r-40
87-13K
which an
Owner owns a ground lease
interest of, In the case of
Irvine, a
fee Interest unencumbered
by a ground Leaset
Jai Comprehensive liability insurance with limits of
not less than One Million Dollars J$1,000,000) Combined single
limit bodily injury, personal Injury, death and property damage
liability per occurrence or current limit carried by the
procuring partye whichever is greater, Insuring against any and
all liability which Is occasioned In whole or In part by the
procuring party with respect to the use of the Casement Area by
such party and its employees, guests, Invitees and represent&-
tIves. rurther, all comprehensive liability Insurance shall
include. but not be limited to. personal injury, blanket con-
tractual. crocs-liability and severability of interest clauses,
producL/completed operations, broad form property damage,
Independent contractors, owned, non -owned and hired vehicles and,
if alcoholic beverages are served, sold, consumed or obtained
liquor liability.
anywhere on the Leased Premises,
(b) Worker's compensation coverage as required by law.
t-g-ther with employer's liability coverage. and waiver by each
owner's insurer of any right of subrogation against any addl-
tional insureds by reason of any payment pursuant to such
coverage.
Each policy shall name the Owners aa additional insureds
and shall be for the mutual benefit and prQtection of all of the
Owners. Cortificates evidencing the above-described insurance
coverage shall be delivered to each Owner within ten (10) days
following the execution of this Agreement. Each policy shall
also provide that It may not be cancelled or subject to reduction
of coveraqe or other mcdification except after thirty 130) days'
prior written notice to each owner. All public liability.
prcperty damage and other casualty policies sha I I be written
as primary policies and any itisurance carried by the other Owners
shall be non-contributing with such policies.
V1. INDIN1111Y
V4ch Owner hereby agrees to n emni:y. detend and hold
the other owilers ivittiiely harmless from and against any and all
liabilities. demands. actions. losses or claims for d.%magez for
I.trfsQnal injury (including bodily injusy and death). property
damage Jincluding damage to property of all of the owners). or
other costs ancf charges. including attorneys' fees, arising out
of or caused all or in part by the use ct the Casement Area by
such Owner and such Owner's employeeso Quests# invitees and
representatives of from any breach of this Agreement by such
Owner.
-7-
87-138C 4J
Vil. RIGHTS Ol� LENDERS
A. Mortgagee Defined
The term 'Mortqagee' shall include a mortgagee
under any mortgage and a beneiiciary under any deed of trust and
the term -M4jrtqdqe" shall in-lude 31-Y illuenture C)l picrtgage, deed
of trust or similar Instrument oecuring a loan made in good faith
and tot value to dny of the Owners with respect to the financing
or refinancing of each Owner's respective interest in the
Property or ally portion thereof or any Improvements thereon.
0. Protection of Lenders
No breach of V101 -l' !-11 Of any Pff'"Slon Ot this
Agreement by any of the owners chill defeat or tender invalid the
lien of any Mortgdqee; provided. however. that all of the provi-
sions of this Agreement. shall be binding upon and effective
against any Owner, incitidinq mortgaciee. who acquires either tee
title or a leasehild intvIv-';t in any portion of the property by
judicial fofeclocure, titirtev's rale or deed In lieu of foreclo-
uure Ohe "Owner by l*otecI,:;ufQ"). except that such Owner by
Foreci(isure sha!l lake titic. tree and clear of ally unpaid amounts
In breach of this Aqrevment ii--isc)nably attributable to its prede-
cessor(s) in title oef-istring print to ally such transfer of
t I t I e . t1atwithstand&iiQ I ' lie foreyoing ur any other provisioll Of
this Agreeii-ent, n, act. cjl oblIgitiin of Irvine shall
defeat, invalidate or s1Ipt-r:;fde any obliqatiult of Irvine as set
forth in d Mortgage pxecuted by Irvine, and in the case Of &
conflict between aisy provision 01 this Agreement and such Mort-
gage, the latter uhi!] g.,vL-rn a5 betweell Irvine and such Mc.rt-
qdgee.
C. Lltec-t of I*c.reciosuie
In the ever.t tndt IlVll1@.-%; fee title is acquired by
all Owner by and -�%JCII acquisition results III Irvine no
longer owning 4 ft- .1iterest in any Of the Property. the follow-
ing shall applyl
Control and Maintenance of I;asviu;�nt Ate&.
c I IV V I il"l-iR the--gai'll"rit
V _ i"rii; '(-'
The sole and exc)usi� _6T1t-'I EVI -� t!
Area as provided in Article "Ill., D." above, and the responsi-
bilities of Irvine for all maintenance and repair and collection
of cooLs therefor as provided in Article 'IV." Above, shall not
apply to such r)wlipl by t,creclOsure. Ill livu thvre�,I. the Owners
or nuch parties' SucceagOIL; of shall. at their sole cost
and expvnse. bec'"le tot all mainte-
nance, repair and contrcl Of that p,>rtton zA the Usument Area
for which such party hzldr, d leaSehold Interest. of a IPe
interest which I:; not subject to a ground leaue. but without
isivaliditinq (,I diminishing ally vd:;01helIL rights provided it%
Article "Ill.. A." atiovV.
-11-
87-138040
2. R±asohableness Standard. In carrying out the
responsibilities set7 forth -Un graph '1.* next above. each
Owner shall be reasonable in administering, implementing, enforc-
Ing and discharging any such rights of maintenance and control,
and may lot act with each other according to its sole discretion.
3. Maintenance Entit . In lieu of assuming the
maintenance and conf-rol responsi ies set forth In paragraph
"I -ft of this Section 'C.* above, the Owners may. at any time,
form a CdJifornia non-profit mutual benefit corporation or other
entity in order to carry out the maintenance, enforcement and
similar Obligations set forth In Article 'IV." and in Article
"Ill., D.. above, subject to the consent of all Owners and Mort-
gagees. In such event, the Owners shall assign to such entity.
and such entity shall assume, all ouch maint.enance obligations
slid duties putsuant to d recorded instrument executed by the
Owners and Mortgagees and by such maintendrice entity. The voting
power of each Owner in any such maintenance entity shall be based
upon the Proportionate amount of land in the Easement Area that
is , Ithor ground leased by such Owner or owned in fee but not
subject to a ground lease.
Vill. TERM
The term of this Agreement shall contmence as of the date
of recarddti011 in the Official Records Of Olange County.
California (the %EffeCLive Date"), and Shill continue in effect
thereafter (Of a period of twenty J20) years (the *Term"), unless
otherwise terminated or extended by writLen agreement which has
been duly executed by all of the owners and their Mortqagees (if
any) dnd recorded in the Official Records of said County oil or
before the expiration of the Term.
IX. ENTIRE AGRELMENT
This Agreement superuedei; all Other agreemews. Oral or
In writinq. which have been entered intr. by and betwt?en any of
the Owneir. reqarding the subject matter ileteof, including any
parking ea.-;v1i,pnt r19hts that may have been PrevicuLly granted by
one of the Owners to another owner. This Agreement ccristatutes
the entire dqreement h0twe011 the paitles relating to the rights
granted and the obliqations assuated in this Agreentent.
X. ENLARGEMENT 01- LASEMENT ARLA
The Easement Area
may
be 011ldt9i-d to
include any real
property located adjacent
to
the Property.
provided that an
amendment to this Agrvemeiit
is executed by the Owners. and by all
parties owning a fQQ title
or
ground ledsvhold
interest In uuch
adjacent real property, which
amendment Wiall
incorporate such
Wz
W
87-138-4U
adjacent real property as part Ot tile L:jsemctlt Area and shall
provide that all parties holding,a fee title or ground leasehold
interest in such adjacent real Property Shall be br�und by all the
terms and conditions of this Agreement. All c"ts incurred by
Irvine in connection with the preparation Of such adjacent real
property for use as a parking facility Shall be included in the
costs to be proportioned between the pdftit-!; pursuant to Article
"IV. B." above. in the event the F.asemetit Area iv. enlarged, each
Owner's share of maintendrice costi; as defined its Article "IV --
B." above sliall be recalcul&ted baued upon the new uqua.re footage
of, the EaSement Area.
X I IJOTICUS
All notices# C-*'.vltr,, ruquebts, demands or other com-
municationa provided for herein shall be its writing and shall be
deemed to have been duly given if and when personally served or
forty-eiqht (481 hourz after depa3it in the United States mail in
the State of California, rp9istered or certified with return
receipt eq-jected, poutaqe prepaid and Properly addressed to the
I oppouite the signaLures below.
address set forth for each Party rjr notices by
Any party may from time to time change its address part ies in the
giving written not ice G! such change to tile other
manner provided dbove..
X, 1. ATTC1R?.L:7S' ITI-S
111 tile eve nt [,t Jll�, culltrover:;y, :1jln, or di:;pute gelat-
inq to thiu AgrQUIld. nt I,, d breact. hert-of, tile pt(,v,iling party
shall be entitled to rec,;vet from tile party its reasonable
attorneys' I C. -t-5 . and crsts, n-,1 limited to taxable
expenses. dt 'd by tl- c ;II rt Ur juri , in addition to all
co:jt 0. aL; -terr-iii -v .y be entitled.
other relief to which the- ptevailing party It
X111. Y. I SCULLAULOLIS
it. C�nfliet Of lncvn!;ISICIICY
11% tile event there is any cJIIl lict Et iIIczPI%JiL;t VICY
between the tpfmr. ,n,j condiW,,nn of this Aoteement avid the terms
Ground Leaue!; with teSPt-cL to tt;e
and conditions Of ally Of tile of
subject vv1dtt(-r of this Agreer"Clit, the terti,:; and conditions
this Agreelitent shall cuntrul avid q,,Velll ttit. tiqht%; and obliga-
tiolir. Of the parties-
S.jccv!;:;0r:; and A:;%oiqllki
contained in
All Jf tile covenants and e.,n,1ItiQnL;
thin Agreepient shall extend I.o Ind toe bindi liq upon the successors
in interest to (.dell vl tlie parly*t; fee Or It-dschl"d illtere"t' as
-lu-
87-138AU
the case may be, and all heirs, executors, administrators,
assignees and subtenants of the parties.
C. Governing Law
This Agreement shall be governed by dnd construed
under the laws Of the State of California.
D. Amendment
instrument si This Agreentent may be dmended by atily lecordinq an
gned by all Owners and Lbuir respective Mort-
gagoes. No Owner or Mortgagee may unreasonably withhold agree-
Olent to any amendment which does not adversely dlipct
impair the its rights,
value of its security. Or 1110dify Pach party's propor-
tiOndte share of maintenance au defined in Article "IV.,
B." above.
XIV. LXECLITIUN
The Parties have pxectited this Agreement on the date set
forth in "I. PARTIES AND IPATI;" above.
" I I v i ne"
Till: 114VINI: CU"PANY.
13Y -1
Executive Vice President.
Thq Irvine COn-pdny
42
11y:
lrvino- R#.tjll PrOPerLies
.1
Th,- Irvin..
IJI- nqj�rt ct-ntej I)tivt-.
P.(). Box I
Uvich, CA V2660-ool!p
At t n: General Cutini;el
Adbw
87-138.-4,J
"Stewart and Ullman"
uck,rilA ULLMAN AS TRUSTEE OF TRUST
UNDER WILL OP CHARLES ULLMAN
DECEASED (TruL;t A and Trust H)
A i
BY: �
morttia tillman. Trustee
RICHARD 1. STEWART AND MARCIA
CASS STEWART, AS TRUSICES or
STEWART FAMILY TRUST ESTABLISHED
JUNE 30, 1977
By:
Trustee
UK, eje,.4
k�rcjd
Cds-O-S—tvwa-ft.
TrUSLve
Address:
M1113IT "A"
LEGAL DESCRIPTION 87-138-4J
I . Richard 1. Stewart and Charles Ullman:
THAT PORTION OF LOTS I AND 2 OF TRACT NO. S361, IN THE CITY OF NEWPORT
BEACH. COUNTY OF ORANGE, STATE OF CALIFORNIA AS SHOWN ON MAP FILED IN
BOOK 190. PAGES 47 AND 48 OF MISCELLANEOUS MAPS. IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID LOT I*. THENCE ALONG THE
BOUNDARY LINE OF SAID LOT I THE FOLLOWING TWO COURSES. NORTH 60' 04' 58 -
WEST 81.40 FEET AND WESTERLY AL04G A MON-TANGENT CURVE AND ITS WESTERLY
PROLONGATION CCHCAVE SOUTHERLY HAVING A RADIUS OF 1803.00 FEET. A RADIAL
LINE TO SAID POINT BEARS NORTH 5' 38' 32' EAST THROUGH A CENTRAL ANGLE OF
4' 09' 42' AN ARC DISTANCE OF 130.96 FEET. THENCE NORTH 5* 38' 32" EAST
50.38 FEET*. THENCE SOUTH 84* 211 28" EAST 12.19 FEET 70 A POINT ON THE
WESTERLY LINE OF SAID LOT 1; THENCE ALONG SAID WESTERLY LINE NORTH 1* 58%
11" EAST 59.35 FEET TO A POINT ON THE SOUTHERLY LINE OF THE LANEF
DESCRIBED AS PARCEL 70046-1 IN DEED TO THE STATE OF CALIFORNIA RECORDED
JA4UARY IOj 1979 IN BOOK 12996, PAGE 119 OF OFFICIAL RECORDS OF SAID
COUNTY. SAID POINT BEING IN A MON-TANGENT CURVE CONCAVE NORTHERLY HAVING
A RADIUS OF 1078.00 FEET. A RADIAL LINE TO SAID POINT BEARS SOUTH 2' 30'
28" WEST; THENCE ALONG SAID SOUTHERLY LINE THE FOLLOWING TWO COURSES.
EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1* 01' 27' AN ARC
DISTANCE OF 19.27 FEET AND SOUTH 88* 30' 59' EAST 103.50 FEET TO A POINT
ON THE BOUNDARY LINE OF SAID LOT I*. THENCE ALCNG THE BOU40ARY LINE OF
SAID LOT I THE FOLLOWING FOUR COURSESj SOUTH 5* 38' 32" WEST 22.59 FEET.
SCUTH 44' 33' 09" EAST 39.05 FEET. SOUTH 84' 21' 11" EAST 46.68 FEET AND
SCUTH 7* 04' 02' WEST 99.48 FEET TO THE POINT OF BEGINAING.
2. CTace Restnuralit C0--7--1rY:
Parrel I
Lot 3 of Tract No. 5361 In the city of Newport eeach. county of Orarge.
state of California. as per map thereof recorded In book 190. pages .17
and 48 of Miscellaneous Maps In the office of the County Pecorder of Said
county and that portion of Lot A of said tract described as follows:
Eeginning at the southwesterly ternirus of that certain lot line ccr--�on
to said Lots A and 3 Shcwn on said tract ma; as "N 38* 50, 44, E
140.38'," Said southwesterly ternirus being also an angle point In said
cc-mn line; thence South 38* !0' 44" West 56.CO feet along the
southwesterly prolongation of said c..!rlain lot line to an it,tersection
with the southerly line of said Lot �-. thence North 87* 181 31" Ea'%t
56.CO feet alonq said soutlerly lire to the m-st southeasterly corner cf
said Lot A; thence North 26'. 5b* 22' West 45.97 feet along the iot lire
cc!:—.on tp said Lots A and 3 to the point of beginning.
RESERVING UNTO LESSOR. its succe%sorS and assigns. an easement for t�L
use. construction, maintenance and repair of a water line and aprurte-
nances In, unders over ano along:
(a) the easterly 10.00 feet except the southerly
35.00 feet thereof.
(b) the northerly 10.00 feet of the southerly 4S.00
feet thereof.
-0
87-138-4J
ID011hIT "A" CC41't-
P4rcel 2
Real preperty situated in the city of Newport Beach. county of Orange.
state of Califor'.'ia. described as follows:
That portion of block 54 of Irvine's Subdivision as per map thereof
recorded in book 1, page sa of Miscellaneous Record Maps in the office of
the County Recorder of said county and that portion of Lot A of Tract
5361 as per map thereof recorded In book 190. pages 47 and 48 of
Miscellaneous Maps In the office of said County Recorder described as
follows:
Beginning at the most northwesterly corner of said Lot A. said corner
being a point in the southerly right of way line of State Highway 101-A
(ORA -60-8) as shown on said tract map. thence North 87' 113' 31* East
190.83 feet along Said southerly right of way line to the northwest
corner of that certain easenent described in book 867. page 440 of
Official Records,. thence South 2' W 29' East 17.00 feet along the
westerly Iiiie of said easement to the southwest corner of said easeDent;
thence North 87* 18' 31" East 34.00 feet along the southerly line of sai
easement to the southeast corner of said easement*. thence North 2' 41
294 West 17.00 feet along the easterly line of said easement to the
northeast Corner of said easement, said northeast corner being in said
southerly right of way line of said highway. thence North 871 181 310
East 83.63 feet along said scutherly rig1tt of way line to the most north-
easterly corner of said Lot A; thence South 38' 501 44" West 140.38 feet
along the lot line conm.on to said Lot A and Lot 3, said Tract No. 5361 to
an angle point therein; thence continuing South 38' 501 44" East 56.00
feet to a point In the southerly line of said Lot A which lies South 871
181 311 West 56.00 feet from the southerly corner of said Lot A*. thence
South 87* 181 31" West 144.00 feet along said southerly line; th�.nce
,eaving said southerly line South 2* 411 29" East 103.CO feet to an
intersection with the northerly plerhead I Ine of that Certain pt Ivate
channel as shown on said traco irap; thence South 87' 181 31" West 155.03
feet along said plerhead line to an intersection with the line of mean
high tide of Newport Bay, as described In Superior Court Case No. 20436
recorded May 6. 1926 in book 651. page 72 of Official Records and sho.n
on said tract map; thence Morth 8* 14' 30" Cast 31.9D feet along said
line of mean high tide to Station 11 of said line; thence North 241
561 001 East 80.91 feet cc-linuing along said line of ire.- I�Igh tide to
the southwesterly corner of said Lot A; thence continuing North 24' C�61
00" East 165.91 feet along said line of mean high tide being also the
northwesterly line of said Lot A to the point of beginning.
RESERVING UNTO LESSOR, its successors and assigns. an easerent for the
use, construction. maintenance and repair of a water line and appurte-
nances in. under. over and along a strip of lard IO.CO feet in width
lying between the northwesterly and Southeasterly lines of said Parcel 2.
the southerly line of which Is parallel with and distant northerly 3S.CO
feet freasured at right angles frc-% said southerly line of Lot A.
matim, "B"
WMN PAICkI.
LEGAL DESCRIPTION
87-138 4J
THAT PORTION OF LOT 2 OF TRACT NO. 5361. IN THE CITY OF NEWPOV BEACH,
COUNTY OF ORANGE. STATE OF CALIFORNIA, AS SHOWN ON MAP FILED IN BOOK 190.
PAGES 47 AND 48 AND MISCELLANEOUS MAPS. IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY DESCRIBED AS FOLLOWS:
BEGINNING AT SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE
SOUTHERLY LINE OF SAID LOT 2 THE FOLLOWING TWO COURSES. NORTH 87' IS- 31 -
EAST 186.90 FEET AND EASTERLY ALONG A TANGENT CURVE CONCAVE SOUTHERLY
HAVING A RADIUS OF 1803.00 FEET THROUGH A CENTRAL ANGLE OF 4' 10' 19" AN
ARC DISTANCF OF 131.28 FEET; THENCE NORTH 5* 381 32" EAST 50.38 FEET:
THENCE SOUTH 84" 21' 28' EAST 12.19 FEET TO A POINT ON THE EASTERLY LINE
OF SAID LOT 2. THENCE ALONG SAID EASTERLY LINE NORTH I' Sal 110 EAST
59.35 FEET TO A POINT ON THE SOUTHERLY LINE OF THE LA40 DESCRIBED AS
PARCEL 70046-1 IN DEED TO THE STATE OF CALIFORNIA RECORDED JANUARY 10.
1979 IN BOOK 12996, PAGE 119 OF OFFICIAL RECORDS OF SAID COUNTY, $All
POINT BEING IN A MON-TANGENT CURVE CONCAVE NORTHERLY HAVING A k4OIUS OF
1078.00 FEET. A RAWAL LINE TO SAID POINT BEARS SOUTH 29 301 2911 WEST;
THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTPAL ANGLE OF 12' 081 21*
AN ARC DISTANCE OF 228.39 FEET TO A POINT ON THE NnRTHERLY LINE OF SAID
LOT 2. BEING ALSO THE SOUTHERLY LINE OF CALIFORNIA STATE HIGHWAY ICIA.
ICO.00 FEET WIDE: THENCE ALONG THE BOUNDARY LINE OF SAID LOT 2 THE
FOLLOWING -#W0 COURSES, SOUTH 87' 18' 31- WEST 118.68 FEET AND SOUTH 2-
41' 29" EAST 147.CO FEET TO THE POINT OF BEGINNING.
fE
8 3 8'- 4J
MIUSIT "C"
cu'vm mcu.
LEGAL DESCRIPTION
THAT PORTION OF LOT Co IN THE CITY OF NEWPORT BEACH. COUNTY OF ORANGE. STATE
OF CALIFORNIA. AS SHOWN ON KAP FILED IN BOOK 16. PAGE 10. OF PARCEL KAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT C; THENCE ALONG T�E COUNDARY
LINE OF SAID LOT C THE FOLLOWING THREE COURSES NORTH 84- 21' 119 WEST 122.02
FEET. NORTH 44- 33' 09- WEST 39.05 FEET AND WORTH 5- 38' 324 EAST 22.59 FEET
TO A POINT ON THE SOUTHERLY LINE OF THE LAND DESCRIBED AS PARCEL 70046-1 IN
DEED TO THE STATE OF CALIFORNIA RECORDED JANUARY 10. 1979 IN BOOK 12996, PAGE
119 OF OFFICIAL RECORDS OF SAID COUNTY. THENCE ALONG SAID SOUTHERLY LINE THE
FOLLOWING THREE COURSES. SOUTH 88- 3Q# 59- EAST 56.66 FEET. EASTERLY ALONG A
TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 938.00 FEET THROUGH A
CENTRAL ANGLE OF 2* 43' 03* AN ARC DISTANCE OF 44.49 FEET AND SOUTH 59* 15'
33* EAST 28.93 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF BAYSIDE DRIVE
76.00 FEET WIDE. BEING ALSO A POINT ON THE NORTHEASTERLY LINE OF SAID LOT C;
THENCE ALONG SAID NORTHEASTERLY LINE, SOUTH 25* 14' 00' EAST 48.48 FEET TO THE
POINT OF BEGINNING.
IN Ix
-,
r=_,4 , _, , ,,����
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39��--A
pf I
87;2.138AU
CONSENT AND AGREEMENT FOR SUBORDINATION
The undersigned, The Prudentidl Insurance Company of
America, a New Jersey corporation ("Prudential"), as beneficiary
under that certain deed of trust recorded September 7. 1983 as
Instrument Number 03-391352 of OhO Official records of orange
County. California (the "Deed of Trust")- wt)ich Deed of Trust
creates a lien or charge on a portion of the "Easement Area"
desctibed in the foregoing Reciprocal Grant Of Va:;ements, hereby
consents to the terms and conditions of the foregoing Reciprocal
Grant of casenents and to the execution and recordation of said
instrument.
Notwithstanding the PfiO' recordation of the Deed of
Trust, Prudential hereby further a9tees that the Deed of Trust is
ubordindLe and subject to the Reciprocal Grant oi easements.
:ated: _;k /' / 1. 198V The Prudential insurance
Ccmpary of America. a New
jersey corp3ration
By:_
Its.-_
-7/
By.
ILS:
STATE OF CALII'ORWA
. . ... ; : - " ) 5�;
COUNTY OF bPA*GE
tile undersigned. a
1986. bef.-,te me,
On this day of 'r -s -aid State. persondily appedred
Notary PubliF-Tin and fo
and personally known to me
the
1�j p�6ved to mZ-on the basifi-Of-sitisfactOry evidence) to be
person(s) who executed the Within instrument as N
and on behalf of The Prua-enC-1al insurance
--- A oration, the corporation
company o(-ki�erc,-,j__New Jersey Corp
therein named. and ackncwledged to me that . said corporation
executed the within is-Lrument pu r suant. to its By -Laws or a
resolution of its Board of Directors.
WITNrSS my hand and official sea)-
Pum.1c
P7PATR1'-,1A SPAIIHES
NOT&VT PUDA-C - CALWOMA
WS ANGrit, CWNTV -1yr n t c�d
1 .4 " J'U
*I atim ,P,es M 30 M11
SLAL
(d) PURCHASE MONEY NOTE. The balance of the Purchase Price shalt be paid by a promissory note (the
"Note") from Buyer to Setter, or order, in the amount of Three Hundred Seventy -Five Thousand Dollars
($375,000). The Note shall be in form and substance as attached hereto as Exhibit E and by this reference
incorporated herein. The Note shalt be secured by a first deed of trust (the "Purchase Money Deed of
Trust") on the fee interest in the Land, which Purchase Money Deed of Trust shalt be in form and substance
as attached hereto as Exhibit F and by this reference incorporated herein. The Note shall be executed and
delivered to Escrow by Buyer for delivery to Setter at the Closing.
5. COSTS AW PRORATIONS.
(a) CLOSING COSTS. Buyer and Setter shall each pay one-half (1/2) of the fees and charges of Escrow
Holder. Setter shalt bear the cost of all documentary transfer taxes, and the premium for the Title Policy.
buyer snaLL pay tne entire CUSL U1, 011U S110— ";it= "Lender's Policy" (as
defined below) and any extended coverage, ALTA owner's or other title policy or endorsements in excess of
the standard coverage owner's title policy to be provided by Setter, together w;- any [and surveys required
in connection therewith. Buyer's failure or inability to obtain any such item, icy or endorsement by the
Closing Date shalt not be a condition precedent to or result in any delay of Closing. Buyer shall also
deposit in Escrow, for delivery to Setter at Closing, a loan fee in an amount equal to one percent 0%) of
the original principal amount of the Note as set forth in Section 4 (e) above. Buyer and Setter shall each
bear their own respective Legal, accounting and other consultant fees, charges and costs, if any, incurred
in connection with this transaction. ALL recording costs or fees and all other costs or expenses not
otherwise provided for in this Agreement shalt be apportioned or allocated by Escrow Holder between Buyer
and Setter in the manner customary in Orange County.
(b) TAXES AND ASSESSMENTS. 'Escrow Holder shall calculate the proration of aLL current real property
taxes and all general and special bonds and assessments on the Land between Buyer and Setter as of the
Closing Date based upon the Latest available tax information, using customary escrow procedures, without
N81-143164.Vl 01/18/93
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
(With Purchase Money Mortgage)
(333 Bayside Drive)
THIS AGREEMENT ("Agreement") is entered as of 007 1993, by and between THE IRVINE
COWANY, a Michigan corporation ("Setter"), and MARVIN 0. BURTON, AS TRUSTEE OF THE KkRVIN 0. BURTON FAMILY
TRUST DATED 14AY 25, 1982 ("Buyer").
RECITALS
A. Setter is the fee owner of those certain parcels of Land situated in the County of Orange, State of
California, as more particularly described on EXHIBIT A attached hereto and by this reference incorporated
herein (the "Lan&);
B. The Land is currently subject to a ground Lease dated September 21, 1967, as amended from time to
time prior to the date hereof between Setter, as Lessor, and Marvin 0. Burton, an individual, as Lessee (the
"Ground Lessee") (the "Ground Leasell);
C. Buyer desires to purchase Seller's fee interest in the Land, and Setter has agreed to sell and
convey the Land to Buyer, on the terms and conditions set forth below;
W)W, THEREFORE, the parties hereby agree as follows:
1. PURCHASE AND SALE. Upon aLL of the terms and conditions contained herein, Buyer hereby agrees to
purchase the Land from Setter and Setter agrees to sell the Land to Buyer.
2. ESCROW. Promptly afier this Agreement has been signed and delivered by and between the parties hereto,
Setter shall open an escrow ("Escrow") with Chicago Title Insurance Company, 825 No. Broadway, Santa Ana,
California 92701 ("Escrow Holder"), by delivering a fully executed copy of this Agreement to Escrow Holder.
The parties agree to be bound by the standard escrow General Provisions attached hereto as EXHIBIT B, and
shalt execute and deliver to Escrow Holder such other reasonable or customary supplemental escrow
instructions or other instruments as may be required by Escrow Holder or the parties hereto in order to
T
consummate the sale described herein. The attached EXHIBIT 8 and/or the printed portions of any such
instructions
shalt not amend or supersede any provision of this Agreement.
3. CLOSING OF ESCROW. Subject to the satisfaction of aLL conditions precedent set forth herein, the
closing ("Closing") of the purchase and sale of the Land shalt take place through Escrow on or before
FebruaryJy-' 1993 ' as such date may be extended pursuant to the provisions of Section 6(i) below to a da,
"
no Later-'Yan February"
_�> 1993, or such other date as the parties may mutually agree in writing (the
"Closing Date"). Buyer and Setter hereby acknowledge and agree that the Closing must occur concurrently
with the closing under that certain Purchase Agreement and Escrow Instructions of even date herewith by and
between Setter, as Setter, and 341 Bayside Drive, Inc., a California corporation, as buyer (the "Related
Purchase Agreement")
r
with respect to the real property coamnLy known as 341 Bayside.
4. PURCHASE PRICE. The purchase price for the Land (the "Purchase Price") shall be Six Hundred Seventy -
Five Thousand Dollars (S675,000). The Purchase Price shall be payable through Escrow as follows:
(a) INITIAL DEPOSIT. Concurrently with Buyer's execution and delivery of this Agreement, Buyer shall
deliver to Setter the sum of Five Thousand Dollars (S5,0100), which sum shalt be held by Setter and applied
towards the Purchase Price upon Closing, subject, however, to being disbursed to Setter as Liquidated
damages as provided in Section 9(b) below or returned to Buyer as provided in Sections 9 (a) or 17 below.
No interest shalt accrue or be paid to Buyer with respect to said deposit.
(b) SECOM DEPOSIT. On or before the "Approval Date" (as that term is defined in Section 6(b) below),
Buyer shall deliver to Setter the sum of Fifteen Thousand Two Hundred Fifty Thousand Dollars ($15,250),
which sum shalt be held by Setter and applied towards the Purchase Price upon Closing, subject, however, to
being disbursed to Setter as liquidated damages as provided in Section 9(b) below or returned to Buyer as
provided in Sections 9 (a) or 17 below. No interest shalt accrue or be paid to Buyer with respect to said
deposit. The initial deposit, and the second deposit when made, shall hereafter be referred to as the
"Deposits".
(c) CASH AT CLOSING. The additional sun of Two Hundred Seventy -Nine Thousand Seven Hundred Fifty
Dollars ($279,750), together with any additional amounts and costs chargeable to Buyer as provided below,
shalt be deposited by Buyer into Escrow not Less than twenty-four (24) hours prior to the Closing Date and
shalt be disbursed by Escrow Holder to Setter upon the Closing, Less the costs and prorations'chargeabLe to
Setter under Section 5 below.
(d) PURCHASE MONEY NOTE. The balance of the Purchase Price shalt be paid by a promissory note (the
"Note") from Buyer to Setter, or order, in the amount of Three Hundred Seventy -Five Thousand Dollars
($375,000). The Note shall be in form and substance as attached hereto as Exhibit E and by this reference
incorporated herein. The Note shalt be secured by a first deed of trust (the "Purchase Money Deed of
Trust") on the fee interest in the Land, which Purchase Money Deed of Trust shalt be in form and substance
as attached hereto as Exhibit F and by this reference incorporated herein. The Note shall be executed and
delivered to Escrow by Buyer for delivery to Setter at the Closing.
5. COSTS AW PRORATIONS.
(a) CLOSING COSTS. Buyer and Setter shall each pay one-half (1/2) of the fees and charges of Escrow
Holder. Setter shalt bear the cost of all documentary transfer taxes, and the premium for the Title Policy.
buyer snaLL pay tne entire CUSL U1, 011U S110— ";it= "Lender's Policy" (as
defined below) and any extended coverage, ALTA owner's or other title policy or endorsements in excess of
the standard coverage owner's title policy to be provided by Setter, together w;- any [and surveys required
in connection therewith. Buyer's failure or inability to obtain any such item, icy or endorsement by the
Closing Date shalt not be a condition precedent to or result in any delay of Closing. Buyer shall also
deposit in Escrow, for delivery to Setter at Closing, a loan fee in an amount equal to one percent 0%) of
the original principal amount of the Note as set forth in Section 4 (e) above. Buyer and Setter shall each
bear their own respective Legal, accounting and other consultant fees, charges and costs, if any, incurred
in connection with this transaction. ALL recording costs or fees and all other costs or expenses not
otherwise provided for in this Agreement shalt be apportioned or allocated by Escrow Holder between Buyer
and Setter in the manner customary in Orange County.
(b) TAXES AND ASSESSMENTS. 'Escrow Holder shall calculate the proration of aLL current real property
taxes and all general and special bonds and assessments on the Land between Buyer and Setter as of the
Closing Date based upon the Latest available tax information, using customary escrow procedures, without
N81-143164.Vl 01/18/93
regard to any reassessments or subsequent changes. The foregoing computation of proration of taxes by
Escrow Holder is for the convenience of the parties only, and Escrow Holder shall not be concerned with
charging the parties for such prorations of any such taxes and assessments through Escrow since the Ground
Lessee is required to pay aLt such taxes under the terms of the Ground Lease. Any real property taxes
Levied under the Supplemental Tax Roll as a result of this sale, whether prior to the normal assessment date
or otherwise, shalt be paid solely by Buyer. Escrow Holder shall prorate and charge Buyer for at( rental,
common area maintenance charges, if any, and other sums due and unpaid to Setter under the Ground Lease as
of the Closing Date, and Setter shall provide such information as Escrow Holder may request to enable Escrow
Holder to calculate such proration. The parties agree that if any rental sum under the Ground Lease is
calculated based on a percentage of sates, revenue or income from the [eased promises and if such rental sun
cannot readily be determined for the then - current reporting period as of the Closing Date, then such sum
shall be deemed unchanged from the last prior reporting period under the Ground Lease and Setter shaLL
instruct Escrow Holder as to the amount thereof.
6. CONDITIONS TO CLOSING. The respective obligations of Buyer and Setter to complete the purchase and
sale of the Land are subject to satisfaction of the conditions precedent set forth below for their
respective benefit at or prior to Closing.
(a) TRANSFER AND POSSESSION. Setter shall deliver through Escrow an executed and recordable Grant
Deedlin the form attached hereto as EXHIBIT C (the "Grant Deed") sufficient to convey insurable title to
Buyer, subject only to the matters described in Section 6(c). Buyer shall deliver through Escrow the
executed Note, together with the executed, acknowledged and recordable Purchase Money Deed of Trust
sufficient to convey to Setter an insurable first priority Lien on the fee estate in the Land subject only
to the matters described in Section 6(c). When all required funds and instruments have been deposited into
Escrow by the appropriate parties, and when all other conditions to Closing have been fulfitLed, Escrow
Holder shalt cause to be recorded the Declaration of Special Land Use Restrictions and Mortgage Lien (the
"Special Restrictions") in the form attached,hereto as EXHIBIT D and, immediately thereafter, the Grant
Deed, and immediately thereafter, the Purchase Money Deed of Trust.
- k - -1 '�"'
(b) TITLE APPROVAL. Bu r�eha'ott� ob--�tain4om"E's'crow -H'o(der a preliminary title report covering the
Land (the "Title Report"). 8 er shalt take title to the Land pursuant to this Agreement subject to matters
described in Section 6(c), a, to all other matters of record shown on said Title Report or listed as
exceptions to coverage there except such matters as Buyer shall expressly disapprove by giving written
notice to Setter on or befor +fteeft.-busimess (15) days fo�iewimg Buyer's reeeipt ef the Titie Repept, but
in no Q --9R% lat9p thaA %hipty (IQ) AaVS fejLowiRg %he date herso (the "ApprovaL Date"), which notice
specify reasonable grounds for each such matter so disapproved. Setter shall have ten business (10 ) d :yh:LL
from its receipt of such notice of disapproval within which to notify Buyer in writing as to whether it
shall cause the removal of such disapproved exception to coverage under the Title Policy on or before the
Closing Date. Setter shalt have no obligation to remove any such exception to coverage under the Title
Policy except, if applicable, the Lien of the Existing Deed of Trust (as defined in Section 6(d) below)
which shalt be removed by Setter concurrently with the Closing. The failure by Setter to give Buyer written
notice of its intention to remove any exception to coverage under the Title Policy disapproved by Buyer in
.the manner herein provided shalt be deemed an election by Setter not to remove such exception. in the event
that Setter does not so notify Buyer of its election to cause the removal of such disapproved exception to
coverage under the Title Policy, Buyer may terminate this Agreement, pursuant to Section 9(a) below, by
written notice to Setter and Escrow Holder within ten (10) days thereafter; otherwise, Buyer shall be deemed
to have waived its disapproval of such exception to coverage under the Title Policy and approved same.
Should Buyer fail to disapprove any matter affecting the condition of title or constituting an exception to
coverage under the Title Policy by the Approval Date as set forth above, such matter and/or exception shaLL
be deemed approved by Buyer.
(c) TITLE CONDITION AT CLOSING. Setter shatt cause Escrow Holder to deliver or commit to deliver to
Buyer a standard coverage CLTA Owner's Policy of Title Insurance (the "Title Policy") dated as of the
Closing, insuring Buyer in an amount equal to the Purchase Price, and showing title to the Land vested in
Buyer subject only to:
0) Real property taxes and all unpaid general and special bonds or assessments;
00 The Special Restrictions to be recorded immediately prior to the Grant Deed;
ON) The Ground Lease (it being understood and agreed that it is the intent of Buyer and Setter,
as is more fully set forth in the Special Restrictions that the purchase of the fee estate
in the Land by Buyer shatt in no event result in a merger of the fee estate in the Land and
the leasehoLd estates created by the Ground Lease without the consent of Buyer and the
beneficiary of each deed of trust encumbering said fee estate and/or said Leasehold estate
from time to time);
00 Any and aLt oil, oil rights, minerals, minerat rights, natural gas rights, and other
hydrocarbons by whatsoever name known, geothermal steam, any other material resources and all
products derived from any of the foregoing, that may be within or under the Land, together
with the perpetual right of drilling, mining, exploring and operating therefor and storing in
and removing the same from the Land or any other Land, including the right to whipstock or
directionatty driLL and mine from Lands other than those conveyed hereby, oil or gas wells,
tunnels and shafts into, through or across the subsurface of the Land, and to bottom such
whipstocked or directionaiLy drilled welts, tunnels and shafts under and beneath or beyond
the exterior limits thereof, and to redriLt, retunnel, equip, maintain, repair, deepen and
operate any such welts or mines; without, however, the right to drill, mine, store, explore
and operate through the surface or the upper 500 feet of the subsurface of the Land;
(Y) Any and all water, rights or interests therein, no matter how acquired by Setter, and owned
or used by Setter in connection with or with respect to the Land, together with the right and
power to explore, drill, redriLL, remove and store the same trom the Land or to divert or
otherwise utilize such water, rights or interests on any other property owned or leased by
Setter, whether such water rights shall be riparian, overlying, appropriative, Littoral,
percolating, prescriptive, adjudicated, statutory or contractual; but without, however, any
right to enter upon the surface of the Land in the exercise of such rights;
NO NonexcLusive easements in gross on, over or across the Land within areas designated or shown
on any recorded parcel or tract map of the Land for the following existing or proposed
purposes: (i) the installation, emplacement and maintenance of electric, gas, telephone,
cable television, water, sanitary sewer Lines, drainage facilities or any other utilities,
together with the right to enter upon the Land (without unreasonable interfering with Buyer's
reasonable use and enjoyment thereof) in order to service, maintain, repair, reconstruct,
relocate or replace any of such Lines or facilities; provided that such utilities shalt be
installed underground to the maximum extent practicable and the Lard and the improvements
N81-143164.Vl
upon it shall be restored and repaired to the condition prior to such installation at the
cost and expense of the exerciser of such easements; and (ij) ingress and egress over any
public or private rights of way, bicycle and pedestrian trails or other specific designated
use areas, if any;
(vii) NonexcLusive easements in gross on, over, under or across the Land within 15 feet from att
property Lines of the Land for the installation, emplacement, repair, replacement, operation
and maintenance of electric, gas, telephone, cable television, water, sanitary sewer �fnes,
drainage facilities or any other utilities (provided, that such utilities shall be installed
underground to the maximum extent practicable so Long as such installation does not
unreasonably interfere with the use of the Land and the Land and the improvements upon it
shall be restored and repaired to the condition prior to such installation at the cost and
expense of the exerciser of such easements) and monument, directional or other signs;
(viii) NonexcLusive easements in gross on, over or across the Land within areas which are presentLy
used by the public or adjoining landowners as common streets, passage ways, driveways,
entrance ways or access ways which shall not unreasonably interfere with Buyer's reasonabLe
use and enjoyment thereof, together with the right to enter upon the Land (without
unreasonably interfering with Buyer's reasonable use and enjoyment thereof) in order to
service, maintain, repair, reconstruct, relocate or replace any of such streets or ways;
provided, no adjoining Landowner shall have any obligation to service, maintain, repair,
reconstruct, relocate or replace such streets or ways or to pay the costs thereof unless
specifically agreed to in writing by such Landowner;
Ox) Any and all Littoral rights with respect to the Waterway (as hereinafter defined). By its
acceptance of the Grant Deed Buyer and its successors and assigns hereby expressly and futty
relinquish and release unto Seller any and aLL littorat rights that they may now or hereafter
claim with respect to the Waterway, including, without Limitation, any such right, title or
interest claimed, asserted on resulting from the fact that the Land abuts the Waterway and
Buyer and its successors and assigns fully and unconditionally waive any and all rights they
may now or hereafter have or assert to enjoy, invoke or use the Waterway or any ittoraL
rights relating thereto and acknowledge and agree that by their acceptance of the Grant Deed
Buyer and its successors and assigns are estopped from asserting or exercising any rights to
enjoy, invoke or use the Waterway or any Littoral rights relating thereto at any time now or
hereafter. By its acceptance of the Grant Deed Buyer acknowledges and agrees that Seller and
its successors and assigns shalt be entitled to own, occupy, use and operate the Waterway in
the manner that Setter, or such successors and assigns, elect in their sole discretion and
Buyer and its successors and assigns shall not at any time in the future assert any right,
title or interest with respect to the Waterway or challenge, object to or interfere with the
ownership, occupancy. use or operation thereof;
W Nonexclusive easements in gross on, over or across the Land for the installation,
emplacement, repair, replacement operation and maintenance of the bulkhead adjacent to the
Waterway, together with all systems, tie rods, concrete paneLs,,rockfiLL, tie -back anchor
blocks, railings and any other components of such bulkhead or relating theretoi together with
the right to enter upon the Land in connection therewith.
(xi) The printed exceptions contained in the Title Policy;
(xii) ALL recorded covenants, conditions and restrictions and other matters shown on the Title
Report that are set forth above or that have been approved or deemed approved by Buyer
pursuant to the express provisions of Section 6(b);
(xiii) ALL other matters affecting title to the Land approved in writing or deemed approved by Buyer
pursuant to the express provisions of Section 6(b), which approval shall not unreasonably be
withheld, delayed or conditioned.
(d) EXISTIIIG DEED OF TRUST. The Land may currently be encumbered by a blanket deed of trust to Ticor
Title Insurance Company of California, as Trustee, for the benefit of The Prudential Insurance Company of
America, which deed of trust was recorded September 7, 1983 as Instrument No. 83-391528 in the Official
Records of Orange County, California (the "Existing Deed of Trust"). If so, Escrow Holder is hereby
instructed to cause the Existing Deed of Trust to be reconveyed as to (and only as to) the Land at the
expense of Setter and concurrently with the Closing.
(a) LENDER'S POLICY. Buyer shalt cause Escrow Holder to deliver or commit to deliver to Setter an
ALTA Lender's Policy of Title Insurance (the "Lender's Policy") dated as of the Closing, insuring the first
Lien priority of the Purchase Money Deed of Trust in favor of Seller as to the fee interest in the Land.
The Lender's Policy shall have a Liability amount equal to the principal amount of the Note and shall show
title to the Lard vested in Buyer subject only to the matters set forth in Section 6(c) above.
M CREDIT REVI . Setter shall have until fifteen (15) days prior to the Closing Date (such date
being referred to as the "Credit Review Date") to review and approve the creditworthiness of Buyer, which
determination shall be made by Setter in its sole and absolute discretion. Buyer agrees to cooperate fuLLy
with Setter in providing, in a prompt and thorough manner, such financial statements of Buyer and other
information (cotLectiveLy the "Financial information") as Seller or its agents may reasonably request to
facilitate such financial review. The foregoing conditions shaL( be deemed satisfied unless Seller notifies
Buyer and Escrow Holder in writing, on or before the Credit Review Date, of Setter's election to terminate
this Agreement for failure of either of said conditions pursuant to the provisions of Section 9(a).
(g) FTUNCIAL REVIEW. Setter shatt also make available for Buyer's inspection the books and records
of Seller pertainine to Th -e LaM. nnt lacp than ten rin) rf=.. inr tm tho AnnrnvAl Date. Rover shall be
deemed to have approved all such matters unless it has delivered to Setter and Escrow Holder written notice
of disapproval on or before the Approval Date. Setter hereby represents and warrants to Buyer that Seller
has not concealed or knowingly failed to make available to Buyer any of Seller's books and records relating
to the Land or the Ground Lease. Should Buyer fail to disapprove any matter by the Approval Date as set
forth above, such matter shall be deemed approved. Should Buyer timely deliver a written notice of
disapproval as aforesaid, then unless otherwise agreed by both parties, the Agreement shall terminate
pursuant to Section 9(a) below.
(h) PAST DUE RENT. Prior to the Closing Date the Ground Lessee shall have paid to Seller all past due
rent and other charges owing to Setter under the Ground Lease.
0) MARINA PERMITS. Setter shall have received assurances satisfactory to Setter that the City of
Newport Beach, and any other applicable governmental authority, consents to the continued ownership, use and
NB1-143164.V1 3 01/18/93
operation by Seiler of the marina adjacent to the Land, and that the City of Newport Beach, or such other
applicable governmental authority, will not deny the issuance of a permit for such ownership, use and
operation as a result of the consummation of the sale of the Land as set forth in this Agreement. Setter
shalt use its best efforts to obtain such assurances at least thirty (30) days prior to the Closing Date and
if such assurances are not received on or before 30 days prior to scheduled Closing Date the Closing Date
shalt be extended to the date which is thirty (30) days after setter's receipt of such assurances; provided
that in no event shalt the Closing Date be extended beyond February,,L, 1993. The condition set forth in
this Section 60) is solely for the benefit of Setter.
7. NO ASSIGNMENT BY BUYER PERMITTED. Buyer may not assign its interest under this Agreement without the
express prior written consent of Setter, which consent may be given or withheld by Setter in its soLe
discretion, and any such attempted assignment made in violation of this provision shalt be null and void.
Notwithstanding the foregoing, Setter agrees not to withhold its consent to an assignment by Buyer of its
rights hereunder to the existing Ground Lessee or any existing subLessees, a corporation owned or controlled
by the Ground Lessee or any existing subLessee or other entities (such as a general or Limited partnership)
owned by the Ground Lessee or such subtessees or owned by an entity in which the ownership is more than
fifty percent (50%) in Buyer, provided that any such entity agrees to assume all obligations of Buyer under
th i s Agreement and that any such ass i gnment, or the purchase of the Land by such ass i gnee, does not and w i L
not result in a merger of the fee estate in the Land and the LeasehoLd estate of Buyer created by the Ground
Lease and/or effect a termination of the Ground Lease. Notwithstanding Setter's approval of such assignment
by Buyer, Buyer shalt remain obligated under this Agreement unless Setter determines, in its sole but
reasonable discretion, that the financial ability, business experience and reputation of the proposed
assignee is equal to or greater than the financial ability of Buyer on the date of this Agreement. For
purposes of this Section, the term "control" shalt mean management of the day-to-day operations of such
entity and, in the case of a corporation, ownership of at Least fifty-one percent (51%) of all classes of
outstanding voting stock of such corporation, and, in the case of a partnership, ownership as a general
partner of at Least fifty-one percent (51%) of the interest in profits and Losses and cash flow of such
partnership. Promptly after any such assignment, Setter shalt be furnished with copies of the final
executed assignment documents.
8. TIME OF THE ESSENCE AND ESCROW CANCELLATION. Time is of the essence of every provision of this
Agreement in which time is an element. Failure by any party to perform any obligation within the time and
on the terms and conditions required hereunder shalt discharge the other party's duties and obligations to
perform hereunder upon written notice or demand from the other party. However, if Escrow is not in
condition to close by the agreed Closing Date, Escrow Holder shalt continue to comply with the instructions
contained herein until a written demand has been made by a party entitled to do so for the cancellation of
Escrow. Escrow Holder shalt notify all other parties to this Agreement of any such demand, and shalt
immediately cancel Escrow without any further instructions from any party.
TERMINATION RIGHTS. The parties shalt have the right to terminate this Agreement as follows:
(a) FAILURE OF CONDITIONS. If Setter fails to perform any covenant when due hereunder, or if Setter
is not in a position by the Closing Date to convey title to the Land subject only to the matters described
in Section 6(c) above, and Buyer is unwitting to accept such title to the Land as Setter may be able to
convey without any reduction in the Purchase Price, then Buyer may, in addition to any rights or remedies
available to Buyer at Law, terminate this Agreement and the Related Purchase Agreement and the Escrow by
giving written notice thereof to Seiler and Escrow Holder, or Buyer may waive disapproval and acquire the
Land and the land covered by the Related Purchase Agreement in accordance with the terms hereof and of the
Related Purchase Agreement, but in no event may Buyer unilaterally extend the Closing Date beyond the date
provided in Section 3. In the event of any such termination, or if this Agreement and the Related Purchase
Agreement are duty terminated pursuant to Sections 6(f) or 6(g) above, Setter and/or Escrow Holder shalt
promptly return to Buyer all sums theretofore delivered by Buyer pursuant to Section 4 above and under the
Related Purchase Agreement and held by either of them. Additionally, Escrow Holder shalt return all
instruments to the parties who deposited same, and all title and escrow cancellation charges shalt be
divided equalLy between the parties (except that Setter shalt pay all of such cancellation charges if the
termination is due to Setter's defautt).
(b) SELLER'S RIGHTAIQUIDATED DAMAGES. If Buyer fails to deposit any required sums by the prescribed
time or in the prescribed manner hereunder or under the Related Purchase Agreement, or to perform any other
covenant when due hereunder or under the Related Purchase Agreement, or if Buyer commits any other breach of
this Agreement or of the Related Purchase Agreement, or if Escrow fails to close due to any reason not
described in Section 9(a) above or Section 17 below or of the Related Purchase Agreement, then Setter, at
its option, may terminate' this Agreement and the Related Purchase Agreement and Escrow by giving written
demand to Buyer and Escrow Holder. Thereupon Escrow shalt be canceled, all instruments shalt be returned to
the respective parties who deposited same, and Buyer shalt pay all title and escrow cancellation charges and
fees.
IN ADDITION, THE PARTIES AGREE THAT SELLER SHALL HAVE SUSTAINED DAMAGES RESULTING FROM 13UYERIS FAILURE TO
PERFORM, WHICH DAMAGES ARE DIFFICULT AND IMPRACTICABLE TO ASCERTAIN. ACCORDINGLY, SELLER SHALL BE ENTITLED
TO RETAIN THE ENTIRE DEPOSITS SPECIFIED IN SECTIONS 4(a) AND 4(b) ABOVE AND UNDER THE RELATED PURCHASE
AGREEMENT AS A LIQUIDATED AND REASONABLE ESTIMATE OF SUCH DAMAGES FOR BUYER'S BREACH OR FAILURE TO COMPLETE
THE PURCHASE OF THE LAND AS 0 "EREINABOVE, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671 AND 167-7.
IN SUCH EVENT, ESCROW H0LDERPRg:RERY I RREVOCABLY INSTRUCTED BY BUYER AND SELLER TO DISBURSE IMMEDIATELY TO
SELLER, UPON DEMAND OF SELL.#"'ALONE, SUCH PORTION, IF ANY, OF THE DEPOSITS THAT HAVE BEEN DELIVERED TO AND
ARE BEING HELD BY ESCROW JNS(DER.
"_A� __
yer's SeLLer's
VaLs Initialls
10. FURTHER DOCUMENTS AND ACTS. Each of the parties hereto agrees to cooperate in good faith with each
other, and to execute and deliver such further documents and perform such other acts as may be reasonably
necessary or appropriate to consummate and carry into effect the transactions contemplated under this
Agreement.
11. BUYERIS ACKNOWLEDGMENTS. Buyer hereby acknowledges and agrees to each of the following provisions:
(a) RECEIPT OF DOCUMENTS. Buyer has received and read, understands and agrees to be bound by the
terms and conditions of the Ground Lease and the Special Restrictions.
(b) PRIOR INVESTIGATIONS. Buyer acknowledges that they are or are affiliated with the Ground Lessees
of the Land pursuant to the Ground Lease and the improvements on the Land were constructed by the Ground
Lessees, or its predecessor -in -interest, and the Ground Lessee is in possession of and operates said
improvements. Accordingly, Buyer agrees that it has fully inspected the Land, is familiar with the terms
N81-143164.Vl 4 01/18/93
and conditions of the Ground Lease and the condition of the improvements, and that it is purchasing the Land
on an "as is" basis. Buyer acknowledges that neither Setter, nor any officer, employee or agent of Setter,
has made any representations or warranties whatsoever with respect to the Land, its condition, its
suitability for any use, or any other matter. Buyer agrees that no patent or Latent condition affecting the
Land or any improvement thereon, whether or not known or discoverable or hereafter discovered, shatL give
rise to any right of damages, rescission or other remedy against Setter. The provisions of this Section 11
are intended to survive the Closing in accordance with Section 13 below.
12. NOW -FOREIGN STATUS OF SELLER. In accordance with Section 1445 of the Internal Revenue Code, SeLLer
hereby represents, warrants and certifies to Buyer, under penaLty of perjury, that Setter is not now, and at
the Closing will not be, a "foreign person" (that is, a foreign corporation, foreign partnership, foreign
trust or foreign estate, as those terms are defined in the Internal. Revenue Code and regultations promuLgateed
thereunder); that Setter's tax identification number is 13-3177751; and that Buyer need not withhold tax at
the Closing as a result of this transfer.
13. SLIRVIVABILITY OF COVENANTS. ALL covenants of Buyer or Setter which are expressLy intended hereunder to
be performed in whole or in part after the Closing, and aLL representations, warranties and indemnities by
either party to the other, shalt survive the Closing and be binding upon and inure to the benefit of the
respective parties hereto and their respective heirs, successors and permitted assigns. Any agreements,
understandings, warranties or representations not expressly contained herein shalt in no way bind either
Setter or Buyer. Setter and Buyer each expressly waives any right of rescission and aLl, claims for damages
by reason of any statement, representation, warranty, promise and/or agreement, if any, not contained in or
attached to this Agreement.
14. BROKERS' COMMISSIONS. Each of the parties represents to the other that no brokerage commission,
finder's fee or other similar compensation of any kind is due or owing to any person or entity other than CS
CommrciaL in connection with the transactions covered by this Agreement. Setter shall be responsible to
pay CS Commercial any fees to which it may be entitled in connection with the transactions covered by this
Agreement since CB Commercial has represented Setter in connection with such transactions. Each party
agrees to and does hereby indemnify and hold the other harmless from and against any and aLL costs,
Liabilities, Losses, damages, claims, causes of action or proceedings which may result from any broker,
agent, finder, or similar person, Licensed or otherwise, claiming through, under or by reason of the conduct
of the indemnifying party in connection with the transactions covered by this Agreement.
15. WAIVER, CONSENT AND REMEDIES. Each provision of this Agreement to be performed by Buyer and/or Setter
shall be deemed both a covenant and a condition and shalt be a material consideration for the other party's
performance hereunder, and any breach thereof by either party shall be deemed a material default hereunder
by such party. Either party may specifically and expressly waive in writing any portion of this Agreement
or any breach thereof, but no such waiver shall constitute a further or continuing waiver of any preceding
or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require
further compliance by the other party with any breach or provision so waived. The consent by one party to
any act by the other for which such consent was required shalt not be deemed to imply consent or waiver of
the necessity of obtaining such consent for the same or any similar acts in the future. No waiver or
consent shalt be implied from silence or any failure of a party to act, except as otherwise specified in
this Agreement. ALI rights, remedies, undertakings, obligations, options, covenants, conditions and
agreements contained in this Agreement shalt be cumulative and no one of them shall be exclusive of any
other. Except as otherwise specified herein, either party may pursue any one or more of its rights, options
or remedies hereunder or may seek damages or specific performance in the event of the other party's breach
hereunder, or may pursue any other remedy at Law or equity, whether or not stated in this Agreement.
16. ATTORNEYSt FEES. In the event of any declaratory or other Legal or equitable action instituted between
Setter, Buyer and/or Escrow Holder in connection with this Agreement, then as between Buyer and Setter the
prevailing party shall be entitled to recover from the Losing party all of its costs and expenses, including
court costs and reasonable attorneys, fees.
17. CONDEMNATION. If at any time prior to the Closing, Legal proceedings are commenced under the power of
eminent domain with respect to ail or any portion of the Land, either Setter or Buyer may terminate this
Agreement and cancel Escrow by giving written notice to Escrow Holder and the other party. Thereupon, all
instruments shalt be returned to the respective parties who deposited same, Buyer and Setter shalt each pay
one-half (1/2) of all title and Escrow cancellation charges, all other funds then deposited by Buyer in
Escrow and any funds paid outside of Escrow by Buyer shall be returned to Buyer, and each party shalt be
excused from any further obligations hereunder or Liability to the other party. In the event of such
termination, Buyer shall have no right to participate in the receipt of any condemnation proceeds from the
taking; provided, however, that the rights of Setter and the Lessee under,the Ground Lease in the event of
condemnation shall continue in full force and effect. Should neither party elect to terminate this Agreement
as aforesaid, there shall be no price adjustment as a result of the taking, and Setter shall not be entitled
to any condemnation award as may be attributable to the Land.
18. DAMAGE OR DESTRUCTION. In the event any of the improvements on the Land are damaged or destroyed prior
to the Closing, Buyer agrees that it shalt bear the risk of such Loss and shall have no right to terminate
this transaction; provided, however, that as of the Closing Date, Buyer shalt be entitled to aLL sums, if
any, payable to the Lessor under the Ground Lease as the result of such damage.
19. AUTHORITY TO BIND. Each of the individuals signing this Agreement on behalf of any entity thereby
specifically represents and warrants that such signatories, either collectively or individually, have the
authority to bind that entity to all provisions of this Agreement.
20. NOTICES. Any notice, request, demand, consent, approval or other communication required or permitted
hereunder or by law shalt be validly given or made only if in writing and delivered in person or by
independent courier service to the other party at the address(es) below, or deposited in the United States
mail, duty certified or registered (return receipt requested), postage prepaid, and addressed to the party
for whom intended, as follows:
If to Setter:
copy to:
NBI-143164.Vl
IRVINE HOTEL COMPANY
P.O. Box I
Newport Beach, CA 92658-8904
Attention: Stephen Brahs
IRVINE HOTEL COMPANY
P.O. Box I
Newport Beach, CA 92658-8904
Attention: General Counsel
01/18/93
If to Buyer: MARVIN 0. BURTON, AS TRUSTEE
121 East Hopkins
Aspen, Colorado 81611
Copy to: Douglas P. Allen, Esq.
600 East Hopkins, Suite 302
Aspen, Colorado 81611
Any party may from time to time, by written notice to the other, designate a different address which sha(t
be substituted for that specified above. if any notice or other document is sent by mail. as aforesaid, the
same shall be deemed fully delivered and received upon delivery to the addresses set forth above; provided
that if delivery is refused by the party to whom such notice is addressed, delivery shall be deemed to have
occurred upon such refusal.
21. GENDER AND ULMER. In this Agreement (unless the context requires otherwise), the masculine, feminine
and neuter genders and the singular and the plural shall be deemed to include one another, as appropriate.
22. ENTIRE AGREEMENT. This Agreement and its exhibits constitute the entire agreement between the parties
hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the
terms and conditions thereof. Prior agreements, representations, negotiations and understandings of the
parties hereto, oral or written, express or implied, are hereby superseded and merged herein.
23. CAPTIONS. The captions used herein are for convenience only and are not a part of this Agreement and
do not in any way Limit or amplify the terms and provisions hereof.
24. GOVERNING L.AW. This Agreement and the exhibits attached hereto have been negotiated and executed in
the State of California and shall be governed by and construed under the Laws of the State of California.
25. INVALIDITY OF PROVISIONS. If any provision of this Agreement as applied to either party or to any
circumstance shalt be adjudged by a court of competent jurisdiction to be void or unenforceable for any
reason, the same shall in no way affect (to the maximum extent permissible by taw) any other provision of
this Agreement, the application of any such provision under circumstances different from those adjudicated
by the court, or the validity or enforceability of the Agreement as a whole, and any provision so adjudged
to be void, invalid, illegal or unenforceable for any reason sha(L be replaced, if possible, with a valid
provision that is enforceable and most nearly carries out the original intent of the parties hereto.
26. AMEWMENTS. No addition to or modification of any provision contained in this Agreement shalt be
effective unless fully set forth in writing and signed by both Buyer and Seller.
27. COLINTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shalt constitute but one and the same instrument.
28. NO RECORDATION. Neither Buyer nor Setter shall, without the consent of the other, record this
.Agreement, or a short form or memoranclum thereof, or take any other action which would materially and
adversely affect the marketability of Seller's title to the Land.
29. LEASE ASSIGNMENT. Concurrently with the Closing, Seller shall be deemed to have assigned its interest,
as Lessor, in the Ground Lease to Buyer, and Buyer hereby agrees to assume all of the obligations and
Liabilities of the Lessor thereurder and to indemnify, defend and hold Setter harmless from and against aLL
such obligations and Liabilities from and after the Closing.
30. ADJACENT PIARIKA. Buyer hereby acknowledges and agrees that, as a material inducement to Seller to
enter into the transaction contemplated by this Agreement, the property being sold to Buyer pursuant to this
Agreement does not, and shall not at any time in the future, include any Littoral rights with respect to the
waterway adjacent to the Land and the marina currently Located thereon owned by Seller or any future
improvements Located thereon or any enhancements, repairs or replacements thereof (collectively, the
"Waterway"), aLL of which are expressly reserved by Seller. Buyer further acknowledges that the rights
retained by Setter pursuant to this Section 13 enhance the value of Lard owned or Leased by Seller and/or
the other interests which Seller may have in such Land and that Setter would not have entered into this
Agreement if the property being sold to Buyer included any Littoral rightswith respect to the Waterway and
that the Purchase Price for the Land has been established by Setter based upon Seller's continued right to
own, occupy, use, operate, lease or otherwise alienate the waterway.
Buyer hereby expressly and fully relinquishes and releases unto Seller any and aLL Littoral rights or any
other rights that it may now or hereafter have or claim with respect to the Waterway, including without
Limitation any such right, title or interest claimed, asserted or resulting from the fact that the Land
abuts the Waterway. Buyer further fully and unconditionally waives any and aLL rights it may now or
hereafter have or assert to enjoy, invoke or use the Waterway or any Littoral rights relating thereto and
acknowledges and agrees that by entering into this Agreement Buyer is estopped from asserting or exercising
any rights to enjoy, invoke or use the Waterway or any Littoral rights relating thereto at any time now or
hereafter. Buyer acknowledges and agrees that Seller, or its successors and assigns, shall be entitLed to
own, occupy, use, operate, lease or otherwise alienate the Waterway in the manner that Seller, or such
successors and assigns, elect in their sole discretion. Buyer hereby covenants and agrees that it shaLL not
at any time in the future assert any right, title or interest with respect to the waterway or challenge,
object to, or interfere with, Seller's or any successors' or assigns' ownership, occupancy, use, operation,
Lease or alienation thereof. In the event Buyer, or any of its successors or assigns, at any time in the
'future asserts any right, title or interest with respect to the Waterway or challenges, objects to, or
interferes with Seller's ownership, occupancy, use, operation, lease or alienation thereof, Seller shaLL be
entitled to exercise any and aLt of its rights and remedies under the Special Restrictions, including,
without Limitation, the right to receive payment of an additional purchase. price from Buyer, or such
successors or assigns, as provided in Article V of the Special Restrictions.
Notwithstanding anything to the contrary set forth herein, Buyer and Seller acknowledge that, in the highly
unlikely event that a court or other governmental authority at some future date decides that the Littoral.
rights have been transferred to or are appurtenant to the property conveyed to Buyer despite the express
agreement of Buyer and Seller to the contrary, Buyer and Setter have entered into a Lease of the Waterway in
the form attached hereto as EXHIBIT G, which Lease shall remain in full force and effectin the event of any
such determination adverse to Seller's ownership, occupancy, use, operation, Lease or alienation of the
Waterway. Notwithstanding the foregoing, Buyer acknowledges that such Lease is being entered into sollety as
a means of fulfilling the express intent of the parties that Seller shalL retain all Littoral rights
r La
e ating to the Land and the Lease, and its execution thereof by Seller, shall not be deemed or construed to
:on::r upon Buyer, or its successors and assigns, any Littoral rights relating to the Land. Seller and its
uc ssors and assigns4shalL retain the obligation to maintain the bulkhe d ad' nt to the Waterway,
�,ace
c ' bLo s
to ith aLL syste)m,, tie rods, concrete panels, rockfilt, tie ack :an blocks, raiLi�ygs nd any
_Z
N81-143164 V1 /6 17 01/18/93
other components of such bulkhead or relating thereto; provided that in no event shall Seller or its
successors or assigns be responsible for any maintenance or changes to the bulkhead or any of the foregoing
components which results from, or is necessary in connection with, a use of the Land which differs from the
use of the Land existing as of the date of this Agreement. Seller shall be responsible for paying any real
property taxes and assessments, if any, attributable to or relating to the Waterway; provided that nothing
contained herein shall be deemed or construed to require Seller to pay any taxes, or any other amounts,
attributable to, or relating to, the Lard.
The provisions of this Section 30 shall survive the Closing in accordance with the provisions of Section 13
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
SELLER:
THE IRVINE
a Mi
BY:
By: — `�'
fta FtRM �ut
A, 11 1� I'
-�D o c N t
Vice President
P
0
C.2
LU
BUYER:
MARVIN O..,BURTON, AS—JWUSTEE
OF THEAWVIN 0. BURTON FAMILY TRUST
DATED MAY 25, 1962
N81-143164.Vl 7 01/18/93
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
333 Bayside
Parcel 1:
Lot B, In the City Of Newport Beach# County of orange, State of California, as per rrulp recorded in Book
16, Page 10, Parcel Maps, in the office of the County Recorder of said County.
Parcel 2:
A non-exclusive easement for ingress and egress over Lots A and C as shown on a map filed in Book 16,
Page 10, Parcel Maps, in the office of the County Recorder of said County, described as follows:
Beginning at the most Easterly corner of said Lot C; thence along the boundary tine of said Lot C the
ill West 1U.02 feet, North 44* 331 og,, west 39.05 feet and North 5*
following three courses North 84' 211 1 ne of the land described as Parcel 70046-1 in Deed to
281 3211 East 22.59 feet to q point on the Southerly it
the State of California recorded January 10, 1979 in Book 12996, Page 119 of official Records of said
County, thence along said Southerly line the following three courses, South 88* 301 5911 East 56.66 feet,
Easterly along a tangent curve concave Southerly having a radius of 938.00 feet through a central angte of
2' 43, 031, an arc distance of 44.49 feet and South 59' 15, 3311 East 28.93 feet to a point on the
Southwesterly line of sayside Drive 76-00 feet wide, being also a Point on the Northeasterly line of said
Lot C; thence along said Northeasterly line, South 25* 141 0011 East 48.48 feet to the point of beginnin I g.
Parcel 3:
A non-excluslye easement for the encroachment of the second story of the building located on the above
described Parcel I onto the adjacent property and any replacements or repairs thereof; provided that any
such replacements or repairs shall only be constructed within the air space that the second story Of the
building currently occupies as of the date hereof and provided further that in no event shalt the easement
granted hereby be deemed or construed to extend beyord the area currently occupied by the second story of
such building.
01/18/93
N81-143164.Vl A-1
EXHIBIT 8
GENERAL PR(NISIONS
PRORATE all items required in this escrow as of the date of close of escrow or as otherwise set forth
in Agreement of the Parties. Assume a 30 -day month in any prorate herein provided, and unless the parties
otherwise instruct you, you are to use the information contained in the last available tax statement, rentaL
statement as provided by Setter beneficiary's statement, and fire insurance policies delivered into escrow
for the prorates provided above. In the event any beneficiary's statement reveals a deposit, account or
funds for a future payment of taxes, insurance or other future payment obligations of the loan you are to
credit Setter and debit Buyer unless otherwise instructed.
YOUR AGENCY AS ESCROW HOLDER shalt terminate six months following the date set forth in Agreement of
the parties for the close of escrow (Closing Date), and shalt be subject to earlier revocation by receipt by
you prior to close of escrow of written notice signed;
(1) In case this escrow has not been placed in a condition to close by the Closing Date, by any party
hereto, or
(2) If received prior to said date, but after (there shalt have been) a failure of a condition or
performance to be complied with or performed on or before a date, or within a period, stated herein, then by
any party other than a party responsible for such compliance or performance, or
(3) As otherwise set forth in Agreement of the parties. Any such revocation shall be effective upon
receipt of such notice, but you shall not return the documents or deposits of the revoking party prior to
ten (10) days after you have mailed a copy of such notice to each of the other parties.
YOUR KNOWLEDGE OF MATTERS affecting the property, provided such facts do not prevent compliance with
these instructions, does not create any liability or duty in addition to your responsibility under these
instructions. No notice, demand or change of instruction, except a demand for revocation made in accordance
with the foregoing paragraph, shalt be of any effect in this escrow unless given in writing by aLL parties
affected thereby.
PROCEEDS of this escrow shall be disbursed by your check payable to the parties as their names are
signed herein unless otherwise instructed and your checks and documents shalt be mailed to the addresses set
forth in the Agreement of the parties.
FUNDS DEPOSITED into this escrow are to be maintained in a federally insured trust account, and any
escrow retated services provided to escrow holder by any depository bank or savings and Loan association are
hereby consented to and approved. If for any reason funds are retained or remain in escrow after closing
date, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than S10 per
month.
ALL PARTIES TO THIS ESCROW ACKNOWLEDGE THAT CHICAGO TITLE COMPANY DOES NOT PROVIDE LEGAL ADVICE NOR HAS
IT MADE ANY INVESTIGATION, REPRESENTATIONS OR ASSURANCES WHATSOEVER REGARDING THE COMPLIANCE OF THIS
TRANSACTION WITH ANY TAX, SECURITIES OR OTHER LAWS OF THE UNITED STATES OR THE STATE IN WHICH THE
TRANSACTION IS CONSUMMATED. ESCROW HOLDER RECOMMENDS THAT THE PARTIES OBTAIN INDEPENDENT LEGAL COUNSEL AS
TO TAX, SECURITIES OR OTHER LEGAL ASPECTS OF THE TRANSACTION.
YOU ARE INSTRUCTED TO FURNISH to any broker or Lender identified with this transaction or anyone acting
on behalf of such tender, any information concerning this escrow, copies of all instruction, amendments and
statements upon request.
INDICATE ON DEED to record, all future tax statements are to be mailed to Buyer at its specified
address unLess otherwise indicated in Agreement of the parties.
SELLERS AGREES to hand you the instruments, documents and money required to comply with these
instructions, which you may use, and pay such costs, taxes, assessments and demands to insure title as set
forth herein when you can comply with these instructions and deliver the net proceeds to the order of
Setter.
PAY A COMMISSION in accordance with the instructions contained in separate commission order.
PAY DOCUMENTARY TRANSFER TAX If the documentary tax declaration has not been furnished in connection
with the Deed from Setter herein to Buyer herein, you are instructed to complete and sign the declaration on
such Deed by computation based on fuLl value of reat property conveyed Less Liens and encumbrances remaining
thereon at time of conveyance, if any.
EACH PARTY AGREES to pay its own proportionate share of costs and charges incurred herein, including,
but not necessarily Limited to escrow fee, document preparation and special handling fees; title insurance
policy and endorsement fees; costs and charges of Lender(s) or other vendor(s) identified herein;
documentary transfer tax, recording, monument, change of ownership and/or other fees chargeable by the City,
County arid/or State in which subject property is Located.
END OF GENERAL PROVISIONS
N81-143164.Vl B-1 01/18/93
EXHIBIT C
FORM OF GRANT DEED
N81 -143164.V1 C-1 01/18/93
RECORDING REQUESTED By
AND WHEN RECORDED MAIL THIS DEED AND
UNLESS
OTHERWISE SHOWN BELOW, MAIL TAX STATEMENTS 70
NAME[—
STREET
ADD 1, r. st
CITY.
5 I -AT
I
ZIPtL
Title Order No .......... . . .. .... ... Escrow No .........................
This space for Recorder's use
Corporation Grant Deed
THE UNDERSIGNED GRANTOR(s) DECLARE(s)
DOCUMENTARY TRANSFER TAX is $
[3 -unincorporated area 0 City of
Parcel No
Q0 computed nit full value of property conveyed, or
0 computed on full value less value of liens or encumbrances remaining at time of sale, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE IRVINE COMPANY
a Corporation organized under the'laws of the state of Michigan hereby GRANT(S) to
MARVIN 0. BURTON, AS TRUSTEE OF THE MARVIN 0. BURTON FAMILY
TRUST DATED MAY 25, 1982
the following described real property in the
county of Orange , State of California:
See Exhibits A and B attached hereto and
incorporated herein by reference.
Dated
STATE 0 ' F CALIFORNIA I S.S.
COUNTY OF Oranye
On
before me,
a Notary. Public in and for said County and State, personally appeared
Donald McNutt and Stepien A Brahs --
------- m^ Ini, ntrived to me on the basis of satisfactory
evfdonce) to be the person(s) whose name(s) is/are subscribed to the
within Instrument and acknowledged to me that he/shelthey executed
the same In histher/their authorized capadMies), and that by hLglher/lheir
signature(s) on the Instrument the person(s), or the entity upon behalf
of which.the person(s) acted, executed the Instrument.
WITNESS my hand and official seal
THE IRVINE COMPANY,
a Michigan Corporation
BY:
Donald MCNULL, vice President
BY:
Stephen A. Brahs, AssIt Secretary
Signature (space aLive for official notarial seal)
MAIL TAX STATEMENTS -16 PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY So SHOWN, MAIL AS DIRECTED ABOVf
City & State
Street Address
Name
CTC 1-102 f9-91)
EXHIBIT A TO GRANT DEED
(333 Bayside Drive)
The real property conveyed hereby is described in Exhibit 8 to this Grant Deed.
RESERVING UNTO GRANTOR, its successors and assigns, together with the right to grant and
transfer all of a portion of the same, as follows:
A . Any and all oil, oil rights, minerals, mineral rights, natural gas rights, and
other hydrocarbons by whatsoever name known, geothermal steam, any other material resources and at L products
derived from any of the foregoing, that may be within or under the Land, together with the perpetual right
of drilling, mining, exploring and operating therefor and storing in and removing the same from the Land or
any other land, including the right to whipstock or directionatLy dritt and mine from Lands other than those
conveyed hereby, oil or gas wells, tunnels and shafts into, through or across the subsurface of the Land,
and to bottom such whipstocked or directionaLLy drilled wells, tunnets and shafts under and beneath or
beyond the exterior Limits thereof, and to redriLL, retunnet, equip, maintain, repair, deepen and operate
any such wells or mines; without, however, the right to dri[1,, mine, store, explore and operate through the
surface or the upper 500 feet of the subsurface of the Land.
B. Any and all water, rights or interests. therein, no matter how acquired by Grantor,
and owned or used by Grantor in connection with or with respect to the Land, together with the right and
power to explore, driLL, redritL, remove and store the same from the Land or to divert or otherwise utilize
such water, rights or interests on any other property owned or Leased by Grantor, whether such water rights
shall be riparian, overlying, appropriative, Littoral, percolating, prescriptive, adjudicated, statutory or
contractual; but without, however, any right to enter upon the surface of the Land in the exercise of such
rights.
C. NonexcLusive easements in gross on, over or across the Land within areas designated
or shown on any recorded parcel or tract map of the Land for the following existing or proposed purposes:
(i) the installation, emplacement and maintenance of electric, gas, telephone, cable television, water, _
sanitary sewer Lines, drainage facilities or any other utilities, together with the right to enter upon the
Land (without unreasonable interfering with Grantee's reasonable use and enjoyment thereof) in order to
service, maintain, repair, reconstruct, relocate or replace any of such Lines or facilities; provided that
such utilities shall be installed underground to the maximum extent practicable and the Land and the
improvements upon it shall be restored and repaired to the condition prior to such installation at the cost
and expense of the exerciser of such easements; and (ii) ingress and egress over any public or private
rights of way, bicycle and pedestrian trails or other specific designated use areas, if any.
D. Nonexctusive easements in gross on, over, under or across the Land within 15 feet
from all property Lines of the Land for the installation, emplacement, repair, replacement, operation and
maintenance of electric, gas, telephone, cable television, water, sanitary sewer tines, drainage facilities
or any other utilities (provided, that such utilities shall be installed underground to the maximum extent
practicable so Long as such installation does not unreasonably interfere with the use of the Land and the
Land and the improvements upon it shall be restored and repaired to the condition prior to such instaLtation
at the cost and expense of the exerciser of such easements) and monument, directional or other signs.
E. Nonexclusive easements in gross on, over or across the Land within areas which are
presently used by the public or adjoining Landowners as common streets, passage ways, driveways, entrance
ways or access ways which shall not unreasonably interfere with Buyer's reasonable use and enjoyment
thereof, together with the right to enter upon the Land (without unreasonably interfering with Grantee's
reasonable use and enjoyment thereof) in order to service, maintain, repair, reconstruct, relocate or
replace any of such streets or ways; provided, no adjoining Landowner shall have any obligation to service,
maintain, repair, reconstruct, relocate or replace such streets or ways or to pay the costs thereof unLess
specifically agreed to in writing by such landowner; and provided that Grantee shaLL be entitled to relocate
such easements from time to time in its reasonable discretion upon written notice to Grantor provided that
any such relocation shall not substantially diminish or reduce the access afforded to Grantor or its ability
to service, maintain, repair, reconstruct, relocate or replace any such streets or ways.
F. Any and all Littoral rights with respect to the waterway adjacent to the Land and
the marina currently Located thereon owned by Grantor or any future improvements Located thereon or any
enhancements, repairs or replacements thereof (colLectivety, the "Waterway"). By its acceptance of this
Grant Deed Grantee and its successors and assigns hereby expressly and fully relinquish and release unto
Grantor any and all Littoral rights that they may now or hereafter claim with respect to the Waterway,
including, without Limitation, any such right, title or interest claimed, asserted on resulting from the
fact that the Lard abuts the Waterway and Grantee and its successors and assigns fully and unconditionaLLy
waive any and all rights they may now or hereafter have or assert to enjoy, invoke or use the Waterway or
any Littoral rights relating thereto and acknowledge and agree that by their acceptance of this Grant Deed
Grantee and its successors and assigns are estopped from asserting or exercising any rights to enjoy, invoke
or use the Waterway or any Littoral rights relating thereto at any time now or hereafter. By its acceptance
of this Grant Deed Grantee acknowledges and agrees that Grantor and its successors and assigns shaLL be
entitled to own, occupy, use, operate, Lease or otherwise alienate the Waterway in the manner that Grantor,
or such successors and assigns, elect in their sole discretion and Grantee and its successors and assigns
shall not at any time in the future assert any right, title or interest with respect to the Waterway or
challenge, object to or interfere with the ownership, occupancy, use, operation, Lease or alienation
thereof.
G. NonexcLusive easements in gross on, over or across the Land for the installation,
emplacement, repair, replacement, operation and maintenance of the bulkhead adjacent to the Waterway,
together with all systems, tie rods, concrete panels, rockfiLt, tie -back anchor blocks, railings and any
other compurienta. ., out-li uul�...cu v. ".Lher with the right to enter upon the Land in
connection therewith.
SUBJECT TO:
1. General and special taxes and assessments for the current fiscal year and any and
all unpaid bonds and/or assessments.
2. That certain Declaration of Special Land Use Restrictions, Mortgage Lien and Option
to Repurchase executed by Grantor and Grantee, recorded concurrently herewith and incorporated herein by
this reference (the "Declaration").
NB1-143525.V1 1 01/18/93
3. That certain ground Lease dated September 21, 1967, as subsequentLy amended prior
to the date hereof, between Grantor, as Lessor, and Marvin 0. Burton, an individuaL, as Lessee, (the "Ground
Lease").
4. ALL covenants, conditions, restrictions, reservations, rights-of-way, easements and
other matters of record or apparent (provided that in any such case it is not the intent of this instrument
to require a separate consent by Grantor concerning modifications or amendnents thereto, except as may be
expressLy required by the instruments evidencing any such matters).
NBl-143525.Vl 01/18/93
EXHIBIT B TO GRANT DEED
The real property conveyed hereby is described as follows:
333 Bayside
Parcel 1:
Lot B, in the City of Newport Beach, County of Orange, State of California, as per map recorded in
Book 16, Page 10, Parcel Maps, in the office of the County Recorder of said County.
Parcel 2:
A non-excLusive easement for ingress and egress over Lots A and C as shown on a map fi Led in Book
16, Page 10, Parcel Maps, in the office of the County Recorder of said County, described as follows:
Beginning at the most Easterly corner of said Lot C; thence along the bo . undary tine of said Lot C the
following three courses North 84' 211 'W' West 122.02 feet, North 44' 331 09" West 39.05 feet and North 5'
281 32" East 22.59 feet to a point on the Southerly I ine of the land described as Parcel 70046-1 in Deed to
the State of California recorded January 10, 1979 in Book 12996, Page 119 of Official Records of said
County, thence along said Southerly Line the following three courses, South 88' 301 59" East 56.66 feet,
Easterly along a tangent curve concave Southerly having a radius of 938.00 feet through a central angte of
2* 431 031, an arc distance of 44.49 feet and South 59* 15, 33" East 28.93 feet to a point on the
Southwesterly Line of Bayside Drive 76.00 feet wide, being also a point on the Northeasterly line of said
Lot C; thence along said Northeasterly line, South 25* 14, 0011 East 48.48 feet to the point of beginning.
Pnrcel 3:
A non-exclUflye easement for the encroachment of the second story of the building located on the above
described parcel 1 onto the adjacent property and any replacements or repairs thereof; provided that any
such replacements or repairs shall only be constructed within the air space that the second story of the
building currently occupies as of the date hereof and provided further that in no event shall the easement
granted hereby be deemed or construed to extend beyond the area currently occupied by the second story of
such building.
NB1-143525.V1
B-1
01/18/93
EXHIBIT D
FORM OF SPECIAL RESTRICTIONS
NB1-143164.V1 D-1 01/18/93
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The Irvine Company
Post Office Box I
Newport Beach, California 92658-8904
Attention: General Counset/Irvine Hotel Company
DECLARATION OF SPECIAL LAND USE RESTRICTIONS
AND MORTGAGE LIEN
OB Bayside Drive)
THIS INSTRUMENT is entered into as of the day of 1 1993, by and between THE
IRVINE COMPANY, a Michigan corporation ("DecLarant"), and MARVIN 0. BURTON, AS TRUSTEE OF THE MARVIN 0.
BURTON FAMILY TRUST DATED KAY 25, 1982 ("Buyer") with reference to the following facts:
A. Concurrently herewith, Buyer is acquiring from DecLarant that certain parcel of Land situated in
the County of Orange, State of California, as more particutarLy described on EXHIBIT A attached hereto and
by this reference incorporated herein (the "Land").
B. In connection with such acquisition, Buyer has represented to DecLarant that it is acquiring the
Land to own and operate the same in accordance with certain covenants, conditions, rights, restrictions and
limitations more particularly set forth below (collectively referred to as the "Restrictions"), and
DecLarant is setting the Land to Buyer on the basis of Buyer's continuing compliance with such Restrictions.
Buyer acknowledges that:
(i) The original purchase price paid by Buyer for the Land reflects the Limitations on use set
forth in the Restrictions;
(ii) DecLarant has informed Buyer that it is DecLarant's belief that without certain transfer,
use and development restrictions set forth below and hereby agreed to be reasonable, the Land or an interest
in Buyer could be sold by Buyer for an immediate gain prior to fulfilling certain express requirements of
Buyer and contrary to the express intent of the parties hereto; and
(iii) DecLarant has informed Buyer that the price charged to Buyer for the Land would have been
substantially higher had the Land been sold unencumbered by the Restrictions.
C. Buyer acknowledges that Dectarant hap informed Buyer that but for such representations by Buyer,
and the covenants of Buyer contained herein, Declarant would not have sold the Land to Buyer; instead,
Declarant would have sold the Land to another party willing to conform to these Requirements or would have
retained its fee interest in the Land.
D. The Land is currently subject to that certain ground Lease dated September 21, 1967, as amended
from time to time prior to the date hereof, between DecLarant, as Lessor, and Marvin 0. Burton, an
individual, as Lessee (the "Ground Lease"). Wherever herein reference is made to Buyer, such reference
shall refer to and include its successors and assigns, insofar as the Restrictions preclude, Limit or
establish conditions precedent to any proposed use of the Land, including, without Limitation, the
provisions of Section 2.01 below. in the event of any inconsistency between the Ground Lease and this
Agreement with respect to such matters, the provisions of this Agreement shall govern and take precedence
over such provisions in the Ground Lease.
NOW, THEREFORE, in consideration of the foregoing (including the sale of the Land by DecLarant to
Buyer), and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged
by Buyer, the parties hereto agree as follows:
ARTICLE I
GENERAL PROVISIONS
1.01. STATEMENT OF GENERAL PURPOSES. Dectarant is the owner of a Large and unique Landholding,
portions of which have been developed as master -planned communities. Among the distinguishing
characteristics of these master-pLanned communities are the clear delineation of use areas, together with
the strict exercise of architectural and occupancy controls over individual construction projects, so as to
ensure the harmonious growth and development of the Local community and the maximization of the value of
Dectarant's remaining landholdings.
In addition to those general concerns, it is vitally important to, DecLarant that the intensity of
development be Limited on those parcels of property (including the Land) that DecLarant from time to time
elects to sell to third parties. Should the development Limitations imposed by DecLarant be exceeded, among
other possible consequences adverse to DecLarant's interests, the roadways and other infrastructure
improvements servicing the Land and its environs could be over utilized, resulting in undesirable traffic
congestion and housing imbalances within the surrounding community. Such conditions could in turn adversely
affect the ability of Declarant to develop its remaining landownings, including without Limitation the
"Benefited Property" as defined below.
It is to promote these purposes that this Declaration is made, and it is the intention of the
parties that it will be in furtherance of said purposes that the Restrictions, and ail other declarations
supplemental hereto, wilt be understood and construed.
1.02. CERTAIN DEFIWITIONS. I 1- .
(a) "Affiliate of Buyer" shalt mean an entity owned or controlled by or under common control with
Buyer. For purposes hereof, "control" shall mean management of the day-to-day operations of such entity
and, in the case of a corporation, ownership of at Least fifty-one percent (51%) of all classes of
outstanding voting stock of such corporation, and, in the case of a partnership, ownership as a general
partner of at Least fifty-one percent (51%) of the interest in profits and losses and/or cash flow of such
partnership.
(b) "Declarant" shall mean The Irvine Company and all successors, assigns or designees who shall
assume the obligation and to whom The Irvine Company shalt specifically assign in writing the right to
enforce these Restrictions.
NB1-143166.V1 01/12/93
(c) !'Buyer" shall mean the Buyer identified above and each and every successor, assignee, owner,
Lessee, Licensee or other occupant during its ownership or occupancy of the Land or any portion thereof or
interest therein, as the context may require.
(d) "Gross Floor Area" Defined. As used in this instrument and any exhibits hereto, the term "gross
floor area" shall mean the square footage area within the exterior facade or Line of the exterior walls of
the building, including basement and subterranean areas, balcony and mezzanine space, except that the
following areas shall not be included:
0) Areas which are used exclusively to house mechanical, electrical, telephone, heating,
ventilation, air conditioning and other such building operating equipment, including trash compactors and
bailing equipment;
00 Service corridors, exit corridors or stairs not contained within any area exclusively
appropriated for the use of any single occupant;
(iii) Mail pedestrian circulation not contained within any area exclusively appropriated for
the use of any single occupant, including stairs and vertical transportation; and,
Ov) Truck loading areas, truck tunnels, truck parking, turnaround and dock areas, and ramps
and approaches to such truck Loading areas.
(e) "Restrictions" shalt mean each covenant, condition, restriction, reservation, Limitation or
other provision contained in this instrument.
ARTICLE 11
GENERAL AND SPECIFIC USE RESTRICTIONS
2.01. GENERAL USE RESTRICTIONS. The violation of any of the following general use limitations within
twenty-five (25) years after the recordation of this Instrument shall at DecLarant's option constitute a
default hereunder and a breach of the Restrictions, which shall entitle DecLarant to exercise any of the
rights and remedies set forth below:
(a) SUODIVISION. Buyer shalt not effect any change or amendment to any parcel or final subdivision
map covering the Land or record any further parcel or final subdivision map of the Land or any portion
thereof or facilities thereon, pursuant to California Government Code Sections 66410 et sec., or any similar
or successor statute hereafter enacted, and any Local ordinances adopted pursuant thereto, in any case
relating to a use other than a Permitted Use (as hereinafter defined), nor shall Buyer file or record a
condominium plan covering the Land relating to a use other than a Permitted Use, or file any applications
with any governimental agency with respect thereto relating to a use other than a Permitted Use, unless
expressly approved by DecLarant, which approval may be gran' -d or withheld by DecLarant in its soLe
discretion.
(b) ZONING. Buyer shall not use or develop, or attempt to use or develop, the Land, or any portion
thereof, for any purpose other than the Permitted Use (without the benefit of a zoning variance, exception
or other special ackninistrative procedure) under the zoning ordinance or ordinances of the governmental
entity having zoning jurisdiction over the Land in effect as of the date of recordation of this Instrument.
Additionally, Buyer shalt not change or attempt any change in zoning, or obtain or apply for a zoning
variance or exception or other similar approval with respect to the use or development of the Land or any
portion thereof for a use other than a Permitted Use, unless expressly approved by DecLarant, which approval
may be withheld by DecLarant in its sole discretion.
W UNAPPROVED DEVELOP14ENT OR LISE. Unless expressly approved by Dectarant, which approval may be
withheld by Declarant in its sole discretion, Buyer shall not permit:
(i) The commencement of construction, maintenance, operation or use of any structure or
improvements on the Land not in full compliance with all requirements of Law or as contained herein or in
any recorded covenants, conditions, rights, restrictions and Limitations existing from time to time covering
the Land, including without Limitation all architectural approval requirements and use restrictions
contained in such documents; or
00 More specifically, any use of the Land that is not a permitted use as set forth in
EXHIBIT B to this Declaration (a "Permitted Use").
(d) FLOOR AREA AND HEIGHT LIMITATION. As previously described, Buyer understands that the development
potential of other lands owned by DecLarant, including without Limitation the Benefited Property, will
depend in material part upon the intensity of development and use on the Land. Accordingly, Buyer covenants
that without the prior written consent of DecLarant (which consent may be withheld in DecLarant's soLe and
absolute discretion or may be given predicated on the payment to Deciarant of such additional sum as is set
forth in section 3.04 below or as otherwise may be required by DecLarant), in no event shall the collective
Gross Floor Area of all buildings now or hereafter constructed on the Land exceed the maximum Gross Floor
Area set forth in EXHIBIT 8 hereto, nor shall the above -grade height of any such building exceed the height
Limitation set forth in EXHIBIT B.
ARTICLE III
ENFORCB4ENT OF RESTRICTIONS
3.01. GENERAL PURPOSE AND CONSTRUCTIVE NOTICE. The Restrictions shall run and pass with each and every
portion of the Land and be binding upon Buyer, its successors and assigns, and shall benefit any and aLL other
land owned byDectarant and located inOrangeCounty, California, including without Limitation the real property
more particularly described in EXHIBIT C attached hereto and incorporated herein by reference (the "Benefited
Property"). The restrictions shalt be criforceable soLcty t-,- nti-! i . t� - 1 -4 ; - - —, �^Faro -F --rry
of Declarant benefited by the Restrictions, or any portion thereof by DecLarant. Except as specifically set
forth herein, the Restrictions shall remain in full force and effect for the period of time specified in
Section 2.01 above, notwithstanding DecLarant's exercise of any right or remedy herein due to a previous or
repeated violation of any one or more of the previous Restrictions. Every person or entity who now or hereafter
owns or acquires any right, title or interest in or to any portion of the Land is and shalt be conclusively
deemed to have consented and agreed to every Restriction, provision, covenant, condition, right and Limitation
contained herein, whether or not any reference to this Instrument is contained in the instrument by which such
person acquired an interest in the Land.
3.02. INSPECTION. Upon twenty-four (24) hours advance notice and subject to the reasonable security
requirements of Buyer, Declarant or its authorized representatives may from time to time, at any reasonable
hours, 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 therefore.
NB1-143166.V1 01/12/93
3.03. DEFAULT AND GENERAL REMEDIES. In the event of any breach, violation or failure to perform or
satisfy any of the Restrictions which not been cured within the applicable cure period set forth betow,
DecLarant at its sole option and discretion may enforce any one or more of the following remedies or any other
rights or remedies to which DecLarant may be entitled by taw or equity, whether or not set forth herein. Untess
a cure period is otherwise specifically designated, such cure period shalt connence when written notice is given
to Buyer of a violation hereunder and shalt end ten (10) days thereafter in the case of a monetary defautt and
thirty (30) days thereafter in the case of a non -monetary default; provided, however, that if a non -monetary
default is not reasonably susceptible of cure within such 30 -day period, then Buyer shalt have a reasonable time
to cure same so Long as Buyer has commenced such cure promptly within the 30 -day period and thereafter
diligently prosecutes the cure to completion. To the maximum extent allowable by Law, at[ remedies provided
herein or by Law or equity shalt be cumulative and not exclusive; provided. however, that in the event OecLarant
elects to exercise the remedy provided for in Section 3.04 hereof, such remedy shalt be OecLarant's sole and
exclusive remedy for such violation of the Restrictions, although such remedy may be sought in the alternative
with other available remedies in any legal action.
(a) DAKAGES. Dec Larant may bring a suit for damages for any compensabLe breach of or noncwpL iance with
any of the Restrictions, or declaratory relief to determine the enforceability of any of the Restrictions.
(b) EQUITY. It is recognized that a particular or ongoing violation by Buyer of one or more of the
foregoing Restrictions may cause DecLarant to suffer material injury or daimage not comipensabLe in money
(including, but not Limited to irreparable effects on the type and quality of development on other property
owned by DecLarant, or portions thereon, and that Declarant shalt be entitled to bring an action in equity or
otherwise for specific performance to enforce compliance with the Restrictions or an injunction to enjoin the
continuance of any such breach or violation thereof, whether or not DecLarant exercises any other remedy set
forth herein.
(c) ABATEMENT. Any such breach or violation of these Restrictions or any provision hereof, if not
timely cured as provided above, is hereby declared to be a nuisance, and DecLarant shall be entitled to enter
the Land and summarily abate and remove, without further Legal process to the maximum extent permitted by law,
any structure, thing or condition that may exist in violation of any of these Restrictions, or to prosecute any
remedy allowed by Law or equity for the abatement of such nuisance against any person or entity acting or
failing to act in violation of these Restrictions, aLt at the sole cost and expense of Buyer or any person
having possession under Buyer. Any costs or expenses paid or incurred by DecLarant in abating such nuisance
or prosecuting any such remedy (including all reasonable attorneys' fees and costs of collection) and all other
sums owing to DecLarant hereunder, together with interest thereon at the maximLsn rate permitted by Law then in
effect, shall be a charge against the Land, shalt be a continuing Lien thereon until paid, and shall also be
the personal obligation of Buyer or other person who was owner of the Land when such charges became due and who
committed such breach or violation.
(d) MORTGAGE LIEN. In addition to any other rights or remedies hereunder, should a default by Buyer not
be timely cured, or upon the terms set forth in Article V hereof, Declarant may deliver to Buyer and record in
the Official Records of the County of Orange a notice of default and election to sell the Land, and assign the
Ground Lease, together with all improvements thereon (the "Improvements"), subject to any mortgage Lien thereon
(on either the LeasehoLd estate created by the Ground Lease or on the fee estate of Buyer) which shall not be
extinguished by such sate. Thereafter, unless all amounts legally due and owing to Declarant have been paid,
and provided that at I of the requirements of Sections 2920 et seq. of the Cat i fornia Civi L Code and of at L other
applicable statutes have been satisfied, DecLarant or such trustee as Declarant may appoint ("Trustee") may
cause the Land and Improvements thereon to be sold at such time and place as may be fixed in said notice of sate
or at such time and place to which the sate may be postponed as hereinafter provided without additionaL notice,
either as a whole or in separate parcels, and in such order as DecLarant or its Trustee alone may determine,
at public auction to the highest bidder for cash in Lawful money of the United States at the time of sate, or
upon such other terms as DecLarant or its Trustee may consider advisable. In the event of a sale of the Land
and assignment of the Ground Lease, as herein provided, Declarant shalt have the right to require that the buyer
thereof covenant and agree that the fee estate in the Land and the Leasehotd estate created by the Ground Lease
shall not merge as a result of such purchase by said buyer. Buyer shalt have no right to direct or determine
whether the Land shall be sold as a whole or in separate parcels, or the order of sale of separate parcels or
the portion of the Land to be soLd if only a portion is sold. Declarant or its Trustee may postpone the sate
of the Land by public announcement thereof at the time and place of sate and from time to time thereafter by
public announcement at the time and place of the preceding postponement. In conducting or postponing any such
sate, DecLarant may act through its agents, officers or employees or any other person designated by DecLarant,
whether or not such party shalt be a Licensed auctioneer. At such sate, DecLarant or its Trustee shalt cause
to be del ivered to the buyer or buyers, one or more duty exercised deed or deeds conveying the property so sold,
subject to all the provisions of this Instrument, but without any covenant or warranty, either express or
implied. The recitals in such deed or deeds with regard to any matters of fact shalt be conclusive proof of the
truthfulness thereof against the buyer at such sate, its successors and assigns, and aLL other persons. Any
person or entity, including, without Limitation, DecLarant, may bid in or purchase at such sate. No such sate
shalt release or extinguish any rights, remedies or provisions contained in this Instrument in the event of any
further violation of any Restriction set forth herein. The proceeds of such sate shall be applied as follows:
first, to the expenses of sate incurred by Dectarant, including reasonable attorneys, fees; next, to the sums
secured hereby; and finally, to the person or persons legally entitled thereto. As an alternative to the
foregoing, DecLarant may elect to foreclose the Lien secured hereby by judicial action, in which event Buyer
shalt be Liable for the expenses incurred by DecLarant in connection therewith, including reasonable attorneys,
fees. To the maximum extent permitted by law, Buyer hereby waives any applicable statue of Limitations,
provided that the Lien created herein shalt expire sixty (60) years following the date of recordation of this
Instrument. Notwithstanding the foregoing, if Buyer's default is timely cured in accordance with this
Instrument or applicable Law, DecLarant shall, upon request by Buyer, record at Buyer's expense an appropriate
notice of rescission in accordance with the applicable provisions of the Civil Code of California.
3.04. ADDITIONAL PURCHASE PRICE
(a) PATMENT OF ADDITIONAL PURCHASE PRICE. 'r, the sole option ' , ':--' - _-7:7-
may elect for any violation of the Restrictions itemized in Section 2.01 not cured within the time set forth
above, as its exclusive remedy and in Lieu of any remedies permitted by Section 3.03, to obligate Buyer to pay
to DecLarant thirty (30) days after written demand, an additional purchase price for the Land computed as
described below, together with interest thereon at the maximum rate then permitted by Law accruing from and
after the occurrence of any such event until the date of actual payment. Buyer's obligation to pay such
additional purchase price shall be secured by the Lien of this Instrument described in Section 3.03(d) above,
and shalt be subject to the power of sate provisions therein. No failure by DecLarant to exercise its rights
to require one or more of such payments, and no prior exercise of such as to a previous violation, sha1,1L
constitute a waiver of Dectarant's rights to require such payment at any Later time or times white this
Instrument is still in effect, and so Long as any such violation may continue.
(b) DETER14INATION OF ADDITIONAL PURCHASE PRICE. The additional purchase price resulting from a
violation of the Restrictions identified in this Section 3.04 shalt be determined by calculating the difference
NB1-143166.V1 01/12/93
between (i) the then current fair market value of the Land based on the use being made of the Land by Buyer and
predicated on the assumption that said violation of the Restrictions is authorized and permitted herein and (ii)
the then current fair market value of the Land based on the use of the Land by Buyer consistent with the
Restrictions and assuming said violation is not authorized and permitted herein, but in no event sha(1, the
additional purchase price be a negative number. "Current" fair market value shall refer to the value determir,--d
as the date of notice from DecLarant to Buyer of a violation of the Restrictions. If the parties cannot agree
upon the additional purchase price within twenty (20) days after written notice by Dec1larant to Buyer of
violation of the Restrictions, then such fair market values shalt be determined by an independent appraiser
appointed by DecLarant (and reasonably acceptable to Buyer), who shall be a member of the American Institute
of Real Estate Appraisers and whose decision in this matter shalt be final, conclusive and binding. All fees
for such appraiser shall be borne equally by DecLarant and Buyer. If DecLarant and Buyer are unablte to agree
on a single appraiser within twenty (20) days after demand by either party, then,each party shalt select izs
own duty qualified M.A.I. appraiser within ten (10) days thereafter and the two such appraisers shalt mutua��y
setect a third appraiser within ten (10) days after the second of such appraisers is chosen. The average of
the two appraisals closest in amount shall be final conclusive and binding as to the wKxjnt of the additional
purchase price. In such event, each of the parties shalt bear the fees and charges of its own appraiser, and
those of the third appraiser shall be borne equally by Declarant and "er. The additional purchase price shall
be due on the date of notification to Buyer by DecLarant or such Later date as the additional price is
determined as herein provided.
3.05. DECL-ARANTIS RIGHT OF FIRST OFFER. If, at any time within sixty (60) years after the recordatior
of this Instrument, Buyer shalt determine to sell all or any part of the Land or any interest therein
("Interest") to a person or entity other than an Affiliate of Buyer, then Buyer shall notify DecLarant of the
price and the terms on which Buyer wi L L be wi L ( ing to set I . If DecLarant, within thirty (30) days after receipt
of Buyer's notice, indicates in writing its agreement to purchase said Interest for the price and on the term
stated in Buyer's notice, Buyer shalt sell and convey the Interest to Dec(arant for the price and on the terms
stated in such notice. If DecLarant does not indicate its agreement within such thirty (30) day period, Buyer
thereafter shalt have the right to sell and convey the Interest to a third party, but only for a price not Less
than the price offered to DecLarant and on terms not more favorable than those stated in the notice. If "er
does not so sell and convey the Interest within one hundred eighty (180) days, any further transactions or any
changes more favorable to DecLarant in the price or terms previously submitted to Declarant shall be deemed a
new determination by Buyer to sell and convey said Interest, and the provisions of this Section shall again be
applicable.
ARTICLE IV
APPROVAL OF IMPROVEMENTS AND PERFORMANCE OF WORK
4.01. PLAN REVIEW. No improvement on the Land of any nature costing in excess of Twenty Thousand Dollars
($20,000), including but not Limited to any alteration or addition to any Improvements existing from time to
time, but exclusive of any interior or tenant improvement not visible from the exterior of any building on the
Land, shalt be installed, developed, constructed, placed or assembled and maintained on the Land at any time
during the twenty-five (25) years after the recordation of this Instrument until the various submittals (herein,
the "Submittals") required by this Section shalt have been approved in writing by DecLarant. Separate and
progressive Submittals regarding Improvements shalt be made by Buyer for approval as follows:
(a) Two (2) sets of schematic plans and preliminary specifications shalt be submitted to Declarant,
including at Least grading plans and site plans showing in reasonable detait the proposed type of use, size,
Land coverage and the shape, height, location, material, color scheme and elevation of each proposed
Improvement.
(b) Two (2) sets of final working drawings and specifications, based on approved basic design concepts
and schematic plans and preliminary specifications, including at Least color and material palette and signage,
shalt be submitted before commencement of any Improvements.
4.02. GENERAL REQUIREMENTS. Partial Submittals may be made and approved, but in no event shall
construction or assembly of any improvement proceed beyond the scope of the approval received. ALL plans and
specifications to be submitted toDecLarant hereunder shall be prepared by an architect and/or engineer Licensed
to practice in the State of Catifornia, and shalt be submitted in writing over the signature of Buyer or an
agent duty authorized by Buyer in writing.
4.03. APPROVALS. Provided that Submittals are in conformity with these Restrictions and are accompanied
by a written notice to Dectarant containing the sentence next following this sentence, DecLarant shall not
unreasonably withhold its approval of any such Submittal. Notwithstanding anything to the contrary contained
in this Article IV, Dectarant shalt be conclusively deemed to have given its approval thereof unless, within
ten (10) business days after any such Submittal has been received, DecLarant shalt give express written notice
specifying in reasonable detail each item which DecLarant disapproves and the reasons for the disapproval.
Unless so disapproved, Dectarant shalt endorse its approval on one set of submitted documents and return the
same to the person from whom the documents were received, provided that two (2) sets had been submitted as
required above.
4.04. 13ASIS OF APPROVAL. Without Limiting the generality of the foregoing, Dectarant in its solle
discretion may approve or disapprove any Submittals which are not in harmony or conformity with other existing
or proposed improvements on or in the vicinity of the Land, or with any restrictions contained in this
Declaration, or with any applicable governmental regulations, or with OecLarant's master utility, circulation
or general aesthetic or architectural plans and criteria for the Land, including but not Limited to such matters
as adequacy of site and Improvement dimensions or external structural appearance, relation of topography, grade
and elevations of the Land being improved with neighboring sites and nearby streets, and the effect of Location
and use of Improvements on neighboring sites, improvements or operations.
4.05. CERTIFICATES OF COMPLIANCE. Prior to commencement of any such work of Improvement, Buyer shalt,
upon Declarant's written request therefore, supply DecLarant with a certificatiull �jy � L;Lt:Y,Se,�
engineer or land surveyor verifying that the proposed Improvements wi L L be located on the correct parcel of Land
and in accordance with the Submittals previously approved by Declarant. Upon completion of any such
Improvements, Buyer shalt, upon DecLarant's written request therefore, supply DecLarant with a certification
by a duty Licensed or registered architect (including the Landscape architect in the case of Improvements
consisting of Landscaping) that the Improvements as designed by such archi,tect have been completed in accordance
with the final working drawings and specifications previously approved by DecLarant pursuant to Sections 4.01
through 4.03 above.
4.06. PRESLIMPTION OF COMPLIANCE. Notwithstanding anything to the contrary herein contained, after the
expiration of the earlier to occur of (i) one (1) year from either (a) the date of issuance of a certificate
of occupancy by the applicable municipal or other governmentaL authority for any Improvement, if applicable,
or (b) the date of recording a valid Notice of Completion with respect to such Improvement, or 00 one4e�
4-wemty (120 calendar days after Buyer has served DecLarant as provided in Section 6.09 below with copies of
T j
NBI-143166.Vl 01/12/93
either the foregoing certificate of occupancy or Notice of Completion, then any such improvement shalt, in favor
of any purchasers and encumbrancers in good faith and for value, be deemed to be in compliance with a�t
provisions of this Article IV, unless prior to the passage of the Lesser of such periods of time either (A)
actual notice of such noncompliance or noncompLetion, executed by Dectarant, shall have been delivered to Buyer
and, if recordable, shall appear of record in the office of the County Recorder of orange County, California,
or (8) Legal proceedings shalt have been instituted to enforce compliance or completion.
4.07. EXPIRATION OF APPROVALS. Except as may be specifically required in any other document recorded by
Dectarant, Buyer shalt have a period of one (1) year from the date of DecLarant's approval of any Improvement
to the Land pursuant to Section 4.03 above within which to commence such work of Improvement in accordance with
the approved documents. If Buyer fails to commence the work covered by any approved Submittal within such time
period, any previous approvals given by DecLarant for such Improvement or Submittals shall be invalid, and Buyer
shall make entirety new Submittals to DecLarant pursuant to Section 4.01 above prior to coffwncing such work
of Improvement. In addition, Declarant's approval of any individual Submittal shalt expire one (1) year from
the date such approval is given by Declarant unless commencement of construction of the Improvements covered
by such Submittal has commenced or Buyer has submitted subsequent Submittals based upon or incorporating the
earlier approved Submittal. The time periods in this Section shalt be extended by the period of delays outside
Buyer's control, provided that the Buyer shalt have the burden of proving such delays.
4.08. IDENTICAL REPLACEMENTS. Notwithstanding the foregoing, any Improvement on the Land existing as of
the recordation hereof or for which Submittals were previously approved by DecLarant as provided above may be
repaired, replaced, or reconstructed without further consent by Dectarant, but only if the repair, replacement,
or reconstruction is substantially identical to such prior Improvement.
4.09. EXCULPATION. Dectarant shalt not be Liable in damages to anyone making Submittals as provided
herein, or to any Buyer, Licensee or other person subject to or affected by Restrictions, on these account of
(i) Declarant's approval or disapproval of any Submittat, whether or not defective, (ii) any construction,
performance or nonperformance by a Buyer of any work on the Land or Improvements, whether or not pursuant to
approved Submittals, (iii) any mistake in judgment, negligence, action or omission in exercising DecLarant's
rights, powers and responsibilities hereunder, and (iv) the enforcement or failure to enforce these
Restrictions. Every person who makes Submittals to Dectarant for approval agrees by reason of such Submitta(,
and every Buyer of the Land, Improvements or any portion thereof agrees by acquiring title thereto or an
interest therein, not to bring any suit or action against Dectarant seeking to recover any such damages.
DecLarant's approval of any Submittal shalt not constitute the assumption of any responsibility by, or impose
any Liability upon, DecLarant or its representatives as to the accuracy, efficacy or sufficiency thereof.
Nothing contained in this Section shall, in any way, be deemed to release DecLarant from Liability for fraud,
intentional acts, or any breach of DecLarant's obligations under this Instrument.
4.10. ARCHITECTURAL REVIEW FEE. An architectural review fee of Seven Hundred Fifty DoLtars (S750.00)
shall be paid to Declarant at or �fore the time preliminary plans and specifications, prepared by a duly
licensed architect and/or engineer, are submitted for approval, which fee shalt cover DecLarant's review cost
of all Submittals.
4.11. LANDSCAPING. Buyer shall be responsible for regular maintenance for all planted and undeveloped
areas and all parking areas upon the Land and shall keep the same free and clear of weeds, debris and rubbish,
in a neat and clean condition. In particular, all unpaved areas shall be fully and adequately Landscaped by
Buyer, and Buyer shalt provide hose bibs, automatic sprinklers and other reasonable and adequate Landscape
maintenance facilities in the vicinity of all landscaped areas.
4.12. DRAINAGE. No water shalt be drained or discharged from the Land or Improvements thereon --and no
Buyer shall interfere with the drainage established as of the date of these Restrictions �which drainage is
acceptable to and approved by DecLarant)--in or over the remainder of the Land or any other property adjacent
to the Land, except in accordance with plans therefor approved by all public agencies having jurisdiction;
provided, that no water shall be drained or discharged at any time onto or diverted from any adjacent Lands
owned by DecLarant.
4.13. SIGNS. ALL signs shall be subject to the prior written approval of Dectarant in its sole discretion
and shall conform to all governmental requirements then in effect. Notwithstanding anything to the contrary
contained herein, the signage existing as of the date of these Restrictions has been approved by DecLarant.
4.14. 14AINTEMANCE AND REPAIRS. The Land and all improvements thereon shall at all times be kept and
maintained in first-class condition, repair and appearance similar to that maintained by Dec1tarant and other
owners of high-cLass properties of similar class and construction in Orange County, ordinary wear and tear
excepted. ALL repairs, alterations, replacements or additions to Improvements shalt be at Least equal to the
original work in class and quality. Buyer shalt keep the Land and all Improvements adequately insured against
toss or damage by fire and other risks and shalt carry adequate public Liability insurance. In the event of
any such damage or casualty, Buyer shall promptly restore in a good and workmanlike manner any portions of the
Land or Improvements that have been so damaged or destroyed, subject to Buyer's ability to obtain all required
governmental approvals therefor; provided, that Buyer shall use its best diligent efforts to obtain all such
approvals. Buyer shalt also be responsible at all times for determining that all Improvements and the plans
and specifications therefor shalt conform and comply in all respects with these Restrictions, all other
restrictions of record, all applicable governmental regulations, and all exterior architectural design, Location
and color specifications contained therein.
(a) Dectarant agrees that, to the extent that the Improvements are damaged or destroyed and rec--.nstruction
is economically unfeasible, Buyer shall have the right to raze and demolish such Improvements arid, within a
reasonable time, commence construction of new Improvements on the Land; provided, however, that:
0) The new Improvements must comply with all requirements of thi,s Instrument regarding use and
size; and
00 ALL plans and specifications for such Improvements must be approved by DecLarant as provided
herein and comply with all then applicable codes and regulations.
4.15. CONFLICTS. In the event of any inconsistency between the provisions of this Article and those of
any covenants, conditions and restrictions encumbering the Land and recorded prior to the date hereof, then the
latter shalt control.
ARTICLE V
PIARIKA PROVISIONS
5.01. DECLARANTIS WATERWAY. The provisions of this ArticLe V shalt remain in full force and effect for
sixty (60) years after the recordation of this Instrument. Buyer hereby acknowledges and agrees that, as a
material inducement to DecLarant to enter into the transaction contemplated by this Agreement, the property
NB1-143166.V1 01/12/93
being sold to Buyer pursuant to this Agreement does not, and shalt not at any time in the future, include any
tittoraL rights with respect to the waterway adjacent to the Land and the marina currently located thereon owned
by Declarant or any future improvements Located thereon or any enhancements, repairs or replacements thereof
(collectively, the "Waterway"), all of which are expressly reserved by DecLarant. Buyer further acknowledges
that the rights retained by Declarant pursuant to this Article V enhance the value of land owned or teased by
DecLarant and/or the other interests which DecLarant may have in such Land and that DecLarant would not have
entered into this Agreement if the property being sold to Buyer included any Littoral rights with respect to
the Waterway and that the Purchase Price for the Land has been established by Declarant based upon Declarant's
continued right to own, occupy, use, operate, tease or otherwise alienate the Waterway. The provisions of this
Article V shalt not affect any rights which Buyer my have, if any, to use the Waterway as a member of the
general public and not arising out of Buyer's ownership of the Land.
Buyer hereby expressly and fully relinquishes and releases unto Dectarant any and all Littoral rights that it
may now or hereafter have or claim with respect to the Waterway, including without Limitation any such right,
title or interest claimed, asserted or resulting from the fact that the Land abuts the Waterway. Buyer further
fully and unconditionally waives any and all rights it may now or hereafter have or assert to enjoy, invoke
or use the Waterway or any Littoral rights relating thereto and acknowledges and agrees that by entering into
this Agreement Buyer is estopped from asserting or exercising any rights to enjoy, invoke or use the Waterway
or any Littoral rights relating thereto at any time now or hereafter. Buyer acknowledges and agrees that
Declarant, or its successors and assigns, shalt be entitled to own, occupy, use, operate, Lease or otherwise
alienate the Waterway in the mariner that Dectarant, or such successors and assigns, elect in their soLe
discretion. Buyer hereby covenants and agrees that it shalt not at any time in the future assert any right,
title or interest with respect to the Waterway or challenge, object to, or interfere with, DecLarant's
ownership, occupancy, use, operation, Lease or alienation thereof. In the event Buyer, or any of its successors
or assigns, at any time in the future asserts any right, title or interest with respect to the Waterway or
challenges, objects to, or interferes with DecLarant's or any successors' or assigns' ownership, occupancy, use,
operation, tease or alienation thereof, DecLarant shalt be entitled to exercise any and all of its rights and
remedies under the Special Restrictions, including, without Limitation, the right to receive payment of an
additional purchase price from Buyer, or such successors or assigns, as provided in Section 5.02.
Notwithstanding anything to the contrary set forth herein, Buyer and DecLarant acknowledge that, in the highly,
unlikely event that a court or other governmental authority at some future date decides that the tittoraL rights
have been transferred to or are appurtenant to the property conveyed to Buyer despite the express agreement of
Buyer and DecLarant to the contrary, Buyer and Oectarant have entered into a tease of the Waterway, which tease
shalt remain in full force and effect in the event of any such determination adverse to DecLarant's ownership,
occupancy, use, operation, tease or alienation of the Waterway. Notwithstanding the foregoing, Buyer
acknowledges that such tease is being entered into solely as a means of fulfilling the express intent of the
parties that Declarant shalt retain all Littoral rights relating to the Land and the lease, and its execution
thereof by DecLarant, shalt not be deemed or construed to confer upon Buyer, or its successors and assigns, any
Littoral rights relating to the Land.
5.02. ADDITIONAL PURCHASE PRICE. In the sole option and discretion of DecLarant, Declarant may elect for
any violation of the Restrictions itemized in Section 5.01, as its exclusive remedy and in Lieu of any remedies
permitted by this Instrument, to obligate Buyer to pay to DecLarant, as compensation for DecLarant's right,
title and interest in and to the Waterway, within thirty (30) days after written demand, an additional purchase
price for the Land computed as described below, together with interest thereon at the maximum rate then
permitted by Low accruing from and after the occurrence of any such event until the date of actual payment.
Buyer's obligation to pay such additional purchase price shalt be secured by the Lien of this Instrument
described in Section 3.03(d) above, and shalt be subject to the power of sale provisions therein. No failure
by Declarant to exercise its rights to require one or more of such payments, and no prior exercise of such as
to a previous violation, shalt constitute a waiver of DecLarant's rights to require such payment at any Later
time or times white this Instrument is still in effect, and so Long as any such violation may continue.
5.03. DETERMINATION OF ADDITIONAL PURCHASE PRICE. The additional purchase price resulting from a
violation of this Instrument identified in Section 5.01 shalt be the greater of (a) the difference between the
then current fair market value of the Land and the Waterway based on the use of the Land and the Waterway by
Buyer and predicated on the assumption that the use and ownership of the Waterway by Buyer is authorized and
permitted herein, and the then current fair market value of the Land (without the Waterway) based on the use
of the Land by Buyer and the use and ownership of the Waterway by Setter as permitted herein, or (b) the then
current fair market value of the Waterway. In the event the parties are unable to agree, "current" fair market
value shalt be determined by the appraisal process provided in Section 3.04(b) hereof. The additional purchase
price shalt be due on the date of notification to Buyer by Declarant or such Later date as the additional price
is determined as herein provided. At such time as the additional purchase price is paid by Buyer, DecLarant
shalt transfer, to Buyer at Buyer's expense, fee ownership of all Littoral rights, rights to use the Waterway
and the improvements located thereon, and such other related rights to Buyer, and such permits and Licenses as
may be necessary for fee ownership of the foregoing; provided that all of the foregoing shalt be Leased to
DecLarant by Buyer pursuant to the tease between the parties of even date herewith.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01. WAIVER. No waiver by Dectarant of a breach of any of the Restrictions by Buyer and no delay or
failure to enforce any of the Restrictions shalt be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other of the Restrictions. No waiver of any breach or default of Buyer
hereunder shalt be implied from any omission by DecLarant to take any action on account of such breach or
default if such breach or default persists is repeated, and no express waiver shalt affect a breach or default
other than as specified in said waiver. The consent or approval by DecLarant to or of any act by Buyer
requiring Dectarant's consent or approval shalt not be deemed to waive or render unnecessary DecLarant's consent
or approval to or of any subsequent similar acts by Buyer.
6.02- ADVANCES BY DECLAPANT. Upon ten (10) days written notice to Buyer and Buyer's failure to take
appropriate action to protect and preserve DecLarant's security for its rights and interests under this
Agreement within such ten (10) day period, DecLarant shalt be entitled to advance any sums DecLarant deems
ne,cessary, in its sole discretion, to protect and preserve the security for its rights and interest under this
Instrument (including, but not Limited to, sums for completion of construction of any Improvements on the Land,
any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbrances or
Liens or other charges on any portion of the Land which appear to be prior to Declarant's rights and interest
urider this instrument), all of which advances (together with interest at the maximum rate then permitted by Law)
shalt be secured by the Lien of this instrument described in Section 3.03(d) above, and shalt be subject to the
power of sale provisions in this instrument if Buyer fails to reimburse DecLarant for such advances within ten
(10) days after demand from Dectarant.
6.03. COSTS OF ENFORCEMENT. In the event any Legal or equitable action or proceeding shalt be instituted
between Dectarant and Buyer to enforce any provision of this instrument, the party prevailing in such action
NB1-143166.V1 01/12/93
shalt be entitled to recover from the Losing party all of its costs, including court costs and reasonable
attorneys' fees, charges and reimbursements.
6.04. RIGHTS OF LENDERS. No breach or violation of the Restrictions shalt defeat or render invaLid the
Lien of any mortgage, deed of trust or similar instrument securing a Loan made in good faith and for vatue by
an institutional tender with respect to the acquisition or permanent financing of the Land or any portion
thereof, or with respect to the construction of Improvements thereon. However, this Instrument and at[
provisions hereof shalt 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 sate, deed in Lieu of foreclosure or
otherwise, but such subsequent owner shalt have a reasonable period of time after taking title to cure any
continuing violation hereunder that is reasonably capable of being cured provided that such subsequent owner
continuously and diLigentty acts to effect such cure.
6.05. ASSIGNMENT BY DECLARANT. Any and all of the rights, powers, duties and reservations of Dectarant
herein contained may be assigned to any person or entity which will assumie the duties of DecLarant pertaining
to the particular rights, powers and reservations assigned, and upon any such person or entity evidencing its
consent in writing to accept such assignment and assume such duties, such assignee shalt, 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.
6.06. ' TERP41MATION OR AMENDMENT. The Restrictions may be validly terminated, amended, modified or
extended, in whole or in part, only by recordation in the Official Records of the County of Orange of a proper
instrument duty executed and acknowledged by DecLarant and Buyer to that effect.
6.07. CAPTIONS. The captions used herein are for convenience only and are not a part of this Instrument
and do not in any way limit or amplify the scope or intent of the terms and provisions hereof.
6.08. ' INVALIDITY OF PROVISION. If any provision of this Instrument as applied to DecLarant or Buyer or
to any circumstance shalt be adjudged by a court of competent jurisdiction to be void, invalid, illegal or
unenforceable for any reason, the same shalt in no way affect (to the maximum extent permissible by taw) any
other provision of this Instrument, the application of any such provision under circumstances different from.
those adjudicated by the court, or the validity or enforceabitity of the instrument as a whole, and any
provision so adjudged to be void, invalid, illegal or unenforceable for any reason shalt be replaced, if
possible, with a valid provision that is enforceable and most nearly carried out the original intent of the
parties hereto.
6.09. NOTICES. ALL notices, consents, requests demands and other communications provided for herein shat L
be in writing and shalt be deemed to have been duty given if and when personalty served or forty-eight (48)
hours after being sent byUnited States registered mail, return receipt requested, postage prepaid, to the other
party at the following respective addresses:
DECLARANT: THE IRVINE COMPANY
P.O. Box I
Newport Beach, California 92658-8904
Attention: Mr. Stephen Brahs
COPY TO: IRVINE HOTEL ANY
P.O. Box I
Newport Beach, California 92658-8904
Attention: General Counsel
BUYER: MARVIN 0. BURTON, AS TRUSTEE
121 East Hopkins
Aspen, Colorado 81611
COPY TO: DOUGLAS P. ALLEN, ESQ.
600 East Hopkins, Suite 302
Aspen, Colorado 81611
or at such other address as the Declarant of the Buyer may designate to the other in writing.
6.10. APPLICATION 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, the Restrictions shalt
automatically cease and terminate and be of no further force or effect as to DecLarant and such property,
effective as of the date of such reacquisition by Declarant.
6.11. TIME OF THE ESSENCE. Time is of the essence of each provision of this Instrument in which time is
an element.
6.12. OTHER RESTRICTIONS , . This Instrument may not be the exclusive source of restrictions on the use of
the Land, and nothing herein contained shalt prejudice or diminish in any way DecLarant's rights under any other
documents of record from time to time affecting all or any portion of the Land.
6.13. NON -MERGER OF FEE AND LEASEHOLD ESTATE. Buyer acknowledges that no merger of the fee estate in the
Land and the Leasehold estate of the Lessee under the Ground Lease shalt occur so Long as any sum is owed either
(i) to DecLarant under that certain Purchase Agreement and Escrow Instructions pursuant to which Buyer acquired
Land from Dectarant or (ii) any third party mortgagee providing purchase money financing for such acquisition.
So Long as any sum is owed as aforesaid, Buyer shalt keep in force the Ground Lease and shalt not modify, amend,
--- -- -- �tr-.-.-;se alter the Ground Lease in any manner, and any such purported modification,
amendment, termination, surrender or other alteration of the Ground Lease shalt not be binding upon or effective
as to Dectarant or such mortgagee.
NB1-143166.V1 01/12/93
IN WITNESS WHEREOF, the undersigned has executed this Instrument as of the date first above written
DECLARANT:
THE IRVINE COWANY,
A Michigan Corporation
By:
DonaLd McNutt
Vice President
By:
Stephen A. Brahs
Assistant Secretary
ACCEPTED AND AGREED TO:
BUYER:
MARVIN 0. BURTON, AS TRUSTEE OF THE
MARVIN 0. BURTON FAMILY TRUST
DATED KAY 25, 1982
NBl-143166.Vl 01/12/93
STATE OF CALIFORNIA
COUNTY OF ORANGE
on , personally appeared I
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose nanvs
are subscribed to the within instrument and acknowLedged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which
persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
. on , personally appeared I
personally known to me (or proved to me on the basis of satisfactory evidence) to,be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon, behalf of which
persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On personalty appeared
personalty known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which
persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On personalty appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which
persons acted, executed the instrument.
WITNESS my band and official seat.
Notary Public in and for said County and State
NBl-143166.Vl 9 01/12/93
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
333 Baysid
Parcel 1:
Lot 8, in the City of Newport Beach, County of orange, State of California, as per map recorded in Book
16, Page 10, Parcel Maps, in the office of the County Recorder of said County.
Parcel 2:
A non-exc(usive easement for ingress and egress over Lots A and C as shown on a map fi Led in Book 16, Page
10, Parcel Maps, in the office of the County Recorder of said County, described as follows:
Beginning at the most Easterly corner of said Lot C; thence along the boundary Line of said Lot C the fot [owing
three courses North 84* 211 1111 West 122.02 feet, North 44* 331 0911 West 39.05 feet and North 5* 281 32" East
22.59 feet to a point on the Southerly Line of the land described as Parcel 70046-1 in Deed to the State of
California recorded January 10, 1979 in Book 12996, Page 119 of Official Records of said County, thence along
said Southerly tine the following three courses, South a8* 301 5911 East 56.66 feet, Easterly along a tangent
curve concave Southerly having a radius of 938.00 feet through a central angle of 2* 431 031, an arc distance
of 44.49 feet and South 59* 151 3311 East 28.93 feet to a point on the Southwesterly tine of Bayside Drive 76.00
feet wide, being also a point on the Northeasterly Line of said Lot C; thence along said Northeasterly Line,
South 25* 141 0011 East 48.48 feet to the point of beginning.
N`B1-143166.V1 A-1 01/12/93
EXHIBIT 8
SPECIFIC RESTRICTIONS
Permitted Use: Office, retail, restaurant and other commerciaL uses which are approved by ak appticabte
governmental agencies and authorities; provided than in no event shall "Permitted Use" incLude any type of
residential use whatsoever.
Maximum Gross Floor Area: 17,400 square feet
Height Limitation: 35 feet
NB1-143166.V1 B-1 01/12/93
LEGAL DESCRIPTION OF OREMEFITED PROPERTY -
1. 500 AND 550 NEWPORT CENTER DRIVE
Parcel A:
Beginning at the easterly terminus of that certain course in the northerly right of way tine of San Nicolas
Drive shown as south 80 degrees, 14 minutes, 38 seconds east 91.45 feet on Map of Tract 6015 fi Led in Book 239,
pages 28 through 41 of Miscel Laneous Maps, in the Office of said County Recorder; thence along the right of way
tines of said San Nicolas Drive, Newport Center Drive East and Santa Rosa Drive as shown on said Map. The
following courses and distances, north 80 degrees, 14 minutes, 38 seconds west 91.45 feet to the beginning of
a curve concave northeasterly having a radius of 25.00 feet, northwesterly 38.16 feet along said curve through
an angle of 87 degrees, 26 minutes, 49 seconds to the beginning of a reverse curve concave westerly having a
radius of 1670.00 feet; northerly 472.13 feet along said curve through an angle of 16 degrees, 11 minutes, 54
seconds to the beginning of a reverse curve concave southeasterly having a radius of 25.00 feet; northeasterly
38.16 feet along said curve through an angle of 87 degrees, 26 minutes, 49 seiconds, north 78 degrees, 27
minutes, 06 seconds east 69.97 feet to the beginning of a curve concave northwesterly having a radius of 825.50
feet, northeasterly 195.27 feet along said curve through an angle of 13 degrees, 33 minutes, 11 seconds to a
point of a non -tangent curve concave southwesterly having a radius of 25.00 feet, a radial to said point bears
north 35 degrees, 38 minutes, 46 seconds east; thence southeasterly 4.81 feet along said curve through an angle
of 11 degrees, 01 minutes, 42 seconds to the beginning of a reverse curve concave northeasterly having a radius
of 161.00 feet; thence southeasterly 91.20 feet along said curve through an angle of 32 degrees, 27 minutes,
16 seconds to the beginning of a reverse curve concave southwesterly having a radius of 25.00 feet; thence
southerly 32.67 feet along said curve through an angle of 74 degrees, 53 minutes, 02 seconds; thence south 0
degrees, 53 minutes, 46 seconds east 25.50 feet to the beginning of a curve concave northwesterly having a
radius of 2.00 feet; thence southwesterly 3.14 feet along said curve through an angle of 90 degrees, 00 minutes,
00 seconds to the beginning of a reverse curve concave southeasterly having a radius of 2.00 feet; thence
southwesterly 3.14 feet along said curve through an angle of 90 degrees, 00 minutes, 00 seconds; thence south
0 degrees, 53 minutes, 46 seconds east 179.75 feet to the beginning of a curve concave northwesterly having a
radius to 10.00 feet; thence southwesterly 6.59 feet along said curve through an angle of 37 degrees, 45
minutes, 40 seconds; thence south 36 degrees, 51 minutes, 54 seconds west 9.49 feet to the beginning of a curve
concave southeasterly having a radius of 10.00 feet; thence southerly 6.59 feet along said curve through an
angle of 37 degrees, 45 minutes, 40 seconds; thence south 0 degrees, 53 minutes, 46 seconds east 31.50 feet to
"Point All hereinafter referred to; thence continuing south 0 degrees, 53 minutes, 46 seconds east 31.50 to the
beginning of a curve concave northeasterly having a radius of 10.00 feet; thence southeasterly 6.59 feet along
said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 38 degrees, 39 minutes, 26
seconds east 9.49 feet to the beginning of a curve concave southwesterly having a radius of 10.00 feet; thence
southerly 6.59 feet along said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 0
degrees, 53 minutes, 46 seconds east 212.75 feet to the beginning of a curve concave northwesterly having a
radius of 25.00 feet; thence southwesterly 24.40 feet along said curve through an angle of 55 degrees, 55
minutes, 53 seconds to the beginning of a reverse concave southeasterly having a radius of 147.00 feet; thence
southwesterly 66.40 feet along aid curve through an angle of 25 degrees, 52 minutes, 43 seconds to the
beginning of a reverse curve concave northwesterly having a radius of 25.00 feet; thence southwesterly 9.78 feet
along said curve through an angle of 22 degrees, 24 minutes, 25 seconds to a point on a non -tangent curve
concave southerly having a radius of 950.50 feet and the northerly right of way line of said San Nicolas Drive,
:radial to said point bears north 22 degrees, 12 minutes, 47 seconds east; thence westerly 206.65 feet along
aid curve through an angle of 12 degrees, 27 minutes, 25 seconds to the point of begirning.
It. 610 NEWPORT CENTER DRIVE
Parcel A:
That portion of Lot 22 of Tract No. 6015, in the City of Newport Beach, County of Orange, State of California,
as shown on a Map recorded in Book 239, pages 28 through 41, inclusive, of Miscellaneous Maps, in the office
of the County Recorder of said County; tying southeasterly of the boundary of a Map filed in Book 25, page 14
of Parcel Maps, Records of said County.
111. 690 NEWPORT CENTER DRIVE
Parcel 8:
Parcels 2 and 3 of Parel Map No. 83-715, in the City of Newport Beach, County of Orange, State of California,
as shown on a Map f I led In Book 196, pages 13 through 16, inclusive, of Parcel Maps, in the off ice of the County
Recorder of said County.
IV. FASHION ISLAND
Parcel A:
Parcels I through 9, inclusive, in the City of Newport
on Parcel Map No. 86-399 as per Map filed in Book 221,
Office of the County Recorder of said County.
Parcel 8:
Beach, County of Orange, State of California, as shown
pages 30 through 36, inclusive, of Parcel Maps, in the
Lots 13 through 17, inclusive, Lots 0, R, S, U, R-1, R-2, and R-3 of Tract No. 6015, in the City of Newport
Beach, County of orange, State of California, as per Map recorded in Book 239, pages 28 through 41, inclusive,
of MiseLtaneous Maps, in the Office of the County Recorder of said county.
Parcel C:
Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a Parcel Map filed
in Book 67, pages 2 and 3 of Parcel Maps, in the office of the County Recorder of said County.
Parcel D:
Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a Parcel Map filed
in Book 75, page 48 of Parcel Maps, in the Office of the County Recorder of said County.
Parcel E:
Parcel 4 of Parcel Maps, as shown on a Map filed in Book 67, pages 2 and 3 of Parcel Maps and Lot W of Tract
No. 6015, as per Map recorded in Book 239, pages 28 through 41, inclusive, of Misetlaneous Maps, all in the City
of Newport Beach, County of Orange, State of California, in the Office of the County Recorder of said County,
lying within the Land described as Parcels 1 and 2 of that certain Lot Line Adjustment N.B.L.L.A. 87-3, recorded
November 13, 1987, as Instrument No. 87-640346, Official Records of said County.
FI.EXC Exhibit C to Declaration 11/11/91
EXHIBIT E
F0RM OF NOTE
N81 -143164.V1 E-1 01/18/93
PURCHASE MONEY PROMISSORY MOTE
(333 Hayside Drive)
$375,000.00
MAKER'S PROMISE TO PAY
1 1993
Newport Beach, California
FOR VALUE RECEIVED, MARVIN 0. BURTON, AS TRUSTEE OF THE MARVIN 0. BURTON FAMILY TRUST DATED
KAY 25, 1982 ("Maker") promise to pay to the order of THE IRVINE COMPANY, a Michigan corporation ("Payee), at
the address set forth in Section 3 hereof, the principal sum of Three Hundred Seventy -Five Thousand Doi�ars
(S375,000), together with accrued interest on the unpaid principal balance at the appLicable rate as set forth
in Section 2 hereof. Maker acknowledges and agrees that Payee may assign or otherwise transfer this Note at
any time. Payee or anyone who takes this Note by any such transfer and who is entitled to receive payments
under this Note is sometimes hereinafter referred to as the NNote HoLder.0
2. INTEREST
The unpaid principal balance hereof shall bear interest from the date the Deed of Trust (as
defined in Section 12 hereof) is recorded in the Official Records of orange County, California (the "Initial
Datem) and shall continue until the full amount of principal hereof has been paid.
Commeming on the Initial Date and continuing until the five (5) year anniversary of the first
Ost) day of the calendar month following the Initial Date or, if the initial Date is the first Ost) day of
a calendar month, the five (5) year anniversary of the Initial Date (the "Katurity DateA), interest on the
unpaid principal balance hereof shall be calculated at a per annum rate equal to the per annum interest rate
announced by Wells Fargo Bank, N.A. on,the Initial Date, or on such other subsequent date as hereinafter
provided, as its "prime rate,, to commercial customers, plus one percent (1%) (the "Interest Rate"); provided,
however, that on the first (1st) day of the calendar month following the Initial Date and on the first (1st)
day of each calendar month thereafter unti L the fuL L amount of principal hereof has been paid, the Interest Rate
shalt be recalculated in the same manner set forth above (with the use of the "prime rate" announced by We�Ls
Fargo Bank, N.A. on the first Ost) day of such calendar month or, if such day is not a business day, then on
the next succeeding business day provided that any adjustment to the Interest Rate shall be effective as of the
Ost) day of such month) and any adjustment made to the then existing Interest Rate shall be effective as of
such date and shalt continue until any subsequent adjustment is made to the Interest Rate as provided herein.
If, at any time, Wells Fargo Bank, N.A. shall not publicly announce its "prime rate," then the "prime rate"
shall be the highest reference, base or prime rate in effect as announced by the largest bank (in terms of
capital and surplus) having its principal offices in Los Angeles, California. Interest shall be catcutated on
the basis of a 360 -day year. Notwithstanding the foregoing, upon the occurrence of an Event of Defautt as
described in Section 6(a) below, and for so Long as such default continues, the sum(s) of principal and accrued
interest then due and payable hereunder, whether by acceleration or otherwise, shall bear interest at the rate
of the then -current Interest Rate plus four percent (4%) per annum (the "Default Rate").
3. PAYMENT
NOTICE TO MAKER: THE PAYMENT OF PRINCIPAL AND INTEREST AND ANY OTHER SLIMS THEN DUE HEREUNDER IS A
BALLOON PAYMENT. MAKER HAS NO RIGHT WHATSOEVER TO EXTEND OR RENEW THIS NOTE WHEN THE BALLOON PAY14ENT BECOMES
DUE ON THE MATURITY DATE. NOTE HOLDER IS UNDER NO OBLIGATION TO REFINANCE THE LOU AT THAT TIME.
Maker shall prepay through escrow the amount of interest which will accrue on this Note at the
Interest Rate from the Initial Date up to the first (1st) day of the calendar month immediately following the
Initial Date; provided that if such initial Date shall be the first Ost) day of a calendar month, then no
prepayment of interest by Maker shall be required. Maker shall make monthly payments of interest only under
this Note in the amount of Dollars (S ) (based upon 30 year amortization] beginning on
the first (1st) day of the second (2nd) calendar month following the Initial Date (the "First Payment Date")
and on the first (1st) day of each and every calendar month thereafter until the Maturity Date. On the Maturity
Date, the entire unpaid principal balance hereof, together with accrued but unpaid interest thereon and any
other sums then due hereunder, shalt immediately become due and payable in full. If all sums of principal and
accrued unpaid interest and other amounts due under this Note are not paid on the Maturity Date, then all of
such sums shall bear interest from the Maturity Date until paid in full at the Default Rate as adjusted from
time to time.
Any payments received by Note Holder pursuant to the terms hereof shalt be applied first to
the payment of any sums, other than principal and interest, due Note Holder pursuant to the terms hereof, next
to the payment of all interest accrued to the date of such payment, and then to the payment of principal. ALL
payments hereunder are payable in Lawful money of the United States of America to The Irvine Company, 550
Newport Center Drive, Newport Beach, California 92660, Attention: Irvine Investment Company, or at such other
place as the Note Holder hereof may designate from time to time.
4. MAICERIS RIGHT TO PREPAY
Maker shalt have the right to prepay all or part of the unpaid principal balance hereof, together
with accrued but unpaid interest thereon, at any time without penalty.
5. INTEREST RATE LIMITATION
Note Holder and Maker hereby stipulate and agree that the transaction contemplated hereby is not
subject to the usury Laws of the State of California.
it is determined that the transaction contemplated hereby is subject to the usury Laws of the State of
California, Note Holder and Maker stipulate and agree that none of the terms and provisions contained herein
or in any document or instrument executed in connection herewith shall ever be construed to create a contract
for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum
interest rate permitted to be charged by the Laws of the State of California. If any Note Holder shall coLLect
monies which are deemed to constitute interest which would otherwise increase the effective interest rate on
this Note to a rate in excess of the maximum rate permitted to be charged by the taws of the State of
California, all such sums deemed to constitute interest in excess of such maximum rate shall, at the option of
Note Holder, be credited to the payment of the sums due hereunder or returned to Maker.
NB1-143167.V1 1 01/12/93
6. DEFAULT
The occurrence of any of the following shall be deemed to be an "Event of Default" under this Note:
(a) the failure of Maker to pay interest and any other sums within fifteen (15) days after
written notice from Payee that such amounts are delinquent or the failure of Maker to pay principal when
due pursuant to the terms hereof;
(b) the failure of Maker to fully comply with any other covenant or obligation under this Note;
(c) the failure of Maker to fully comply with any covenant or obligation under the Deed of
Trust or any other security instrument now or hereafter securing this Note (collectively, the "Security
Documents");
(d) a default by maker under any other document evidencing the creation of a Lien or other
encumbrance against the Property (as defined in the Deed of Trust), or any portion thereof, incLuding,
without Limitation, the Declaration (as defined in the Deed of Trust); provided, however, that nothing in
this subparagraph shalt be deemed a consent by Note Holder to the creation of any such Lien or encumbrance, -
or
(e) a default by 341 Bayside Drive, Inc., a California corporation under (i) that certain
Purchase Money Promissory Note of even date herewith executed by such parties in favor of Payee, or (ii)
that certain Purchase Money Deed of Trust and Assignment of Rents of even date herewith executed by such
parties, as trustor, in favor of Payee, as beneficiary.
7. REMEDIES
Upon the occurrence of an Event of Default hereunder, Note Holder may, in its sole and absolute
discretion and without demand or notice to Maker, (a) declare the entire unpaid balance hereof, together with
accrued but unpaid interest thereon and any other sums then due hereunder, immediately due and payable, (b) take
all actions and pursue all remedies permitted under the Security Documents, and (c) exercise any and all rights
and powers and pursue any and all remedies now or hereafter available under applicable Law. No delay or
omission on the part of Note Holder in exercising any right or remedy under this Note, the Deed of Trust or any
other Security Document shall operate as a waiver of such right or remedy.
8. LATE CHARGE
If any payment due hereunder is not received by the Note Holder within ten (10) calendar days after
the date such payment is due, Maker shall pay to Note Holder, without demand, a Late charge in an amount equal
to four percent (4%) of the amount past due. It would be impracticable or extremely difficult to fix the Note
HoLder's actual damages if payment is not paid when due hereunder, and said Late charge shall be deemed to be
the Note HoLder's damage for any such late payment, but shall not Limit the Note Holder's right to compel prompt
performance of any obligation or to exercise any other remedy under this Note, the Deed of Trust or any other
Security Document. No Late charge assessed shall exceed the maximum permitted by Law.
9. NOTICES
Any notice, request, demand, instruction or other communication to be given to any party hereunder
shall be in writing and shall be deemed to have been duLy given three (3) business days after deposit in the
United States mail or, if personally delivered or sent by registered or certified mail, return receipt
requested, when delivered, as follows:
If to Maker: MARVIN 0. BURTON, AS TRUSTEE
121 East Hopkins
Aspen, Colorado 81611
copy to: Douglas Allen, Esq.
600 East Hopkins, Suite 302
Aspen, Colorado 81611
If to Payee: THE IRVINE COMPANY
c/o Irvine Investment Company
P.O. Box I
Newport Beach, California 92658-8904
Attn: Mr. Brian McDonald
The addresses and addresses for the purpose of this paragraph may be changed by giving written notice of such
change in the manner herein provided for giving notice. However, unless and unti L such written notice of charge
is actually received, the Last address and addresses as stated by written notice, or provided herein if no
written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder.
10. WRIVERS
Maker herebywaives diligence, presentment, protest and demand, notice of protest, demand, dishonor
and nonpayment of this Note, and notice of intention to accelerate the maturity of this Note and expressly
agrees that, without in any way affecting the Liability of Maker hereunder, Note Holder may extend any maturity
date or the time for payment of any installment due hereunder, accept additional security, release any party
Liable hereunder and release any security now or hereafter securing this Note. Maker further waives, to the
full extent permitted by Law, the right to plead any and aLL statutes of limitations as a defenge to any demand
on this Note, or on any deed of trust, security agreement, Lease assignment, guaranty or other agreement now
or hereafter securing this Note. Maker hereby waives all rights of setoff and counterclaim with respect to this
Note, including rights of setoff and counterclaim with respect to this Note which may arise from 'claims
heretofore unknown to Maker.
11. ATTORNEYS9 FEES
If the Note Holder seeks Legal advice following a default by Maker hereunder or refers this Note
to collection or to reclaim, protect, preserve or enforce its interest in this Note, in the Deed of Trust or
in any other Security Document, then Maker shall pay all reasonable attorneys, fees and expenses and other costs
relating thereto.
NB1-143167.V1 01/12/93
12. THIS NOTE SECURED BY A DEED OF TRUST
This Note is secured by a Deed of Trust and Assigriment of Rents of even date herewith executed by
Maker, as trustor, to Chicago Title Insurance Company, as trustee, and naming Payee, as beneficiary (the "Deed
of Trust"), which Deed of Trust shalt be recorded in the Official Records of Orange County, California.
13. ACMILERATION BY REASON OF TRANSFER
The Deed of Trust contains the following Limitations on the right of maker to transfer the Property
or any beneficial interest in Maker:
"Trustor shalt not transfer the Property or any portion thereof or interest therein without the
prior written consent of Beneficiary, which consent shalt not be unreasonably withheld. Without Limiting the
generality of the foregoing, Trustor acknowledges and agrees that it shalt not be unreasonable for Beneficiary
to withhold its consent to any transfer of the Property or an interest therein or a portion thereof to a person
or entity whose net worth is less than One Million Dollars ($1,000,000) as of the date of such proposed
transfer. If consent should be given, any such transfer shalt be subject to this Deed of Trust, and any
transferee shalt assume all of Trustor's obligations hereunder and agree to be bound by aLL provisions and
perform all obligations contained herein. In the event of any such transfer without the written consent of
Beneficiary, Beneficiary may, at its option, without demand or notice, declare all sums secured hereby
immediately due and payable. Consent to one such transfer shalt not be deemed to be a waiver of the right to
require consent to future or successive transfers. As used herein, the term "transfer" shalt mean: (a) the sale,
agreement to sell, grant of any option to purchase, conveyance or other transfer of the Property, or any portion
thereof or interest therein, whether votuntariLy, involuntarily, by operation of Law or otherwise, or the [ease
of the Property, or any portion thereof, but shalt not include 0) the conveyance of easements reasonably
necessary for the development of the Property, (ii) the Leasing of space in any improvements now or hereafter
Located on the Property in the ordinary course of Trustor's business, or (iii) the assignment of the Lessee's
interest under that certain ground Lease dated September 21, 1967, as amended from time to time prior to the
date hereof, between Beneficiary, as Lessor, and Marvin 0. Burton, an individual, as Lessee (the "Ground LeasAel)
to a third party provided that such assignment does not require the prior consent or approval of the Lessor
thereunder; (b) any transfer by way of security, including the placing or permitting the placing on the Property
of any mortgage, deed of trust, assignment of rents or other security device, but shalt not include any
encumbrance now or hereafter existing solely against the lessee's LeasehoLd estate under the Ground Lease; or
(c) the transfer of a "controlling interest" in Trustor or a transfer of a "control Ling interest" in any general
partner of Trustor which is a joint venture or general or Limited partnership, whether voluntarily,
invoLuntarity, by operation of Law or otherwise. For purposes hereof, the term "controlling interest" shalt
mean any transfer or other disposition of any interest in such entity whereby the effective control of the
management of such entity is attered, Limited or otherwise modified in any mariner."
14. SEVERABILITY
Every provision of this Note is intended to be severable. In the event any term or provision
hereof is declared by a court of competent jurisdiction to be iLLegat or invalid for any reason whatsoever, such
iLtegality or invalidity shalt not affect the balance of the terms and provisions hereof, which terms and
provisions shalt remain binding and enforceable, and any provision so adjudged to be void, invalid, iLLegat or
unenforceable for any reason shalt be replaced, if possible, with a valid provision that is enforceable and most
nearly carries out the original intent of the parties hereto.
15. NLNIRER AND GENDER
In this Note the singular shalt include the plural and the masculine shalt include the feminine
and neuter gender, and vice versa, if the context so requires.
16. TIME IS OF THE ESSENCE
Time is strictly of the essence under this Note and any amendment, modification or revision hereof.
17. CHOICE OF LAW
This Note shalt be governed by and
California. In the event of a dispute hereunder,
a court of competent jurisdiction in Orange County,
jurisdiction of such court.
18. JOINT AND SEVERAL LIABILITY
construed in accordance with the Laws of the State of
it is agreed that the sole and exclusive venue shalt be in
California, and the parties hereto agree to submit to the
If this Note should be signed by more than one party, the Liability under this Note of each party
shalt be joint and several. In addition, if Maker is a partnership, the liability under this Note of each
general partner of maker, and the liability of each general partner of a partnership which is itself a general
partner of Maker, shatt be joint and several.
04akerg
MARVIN 0. BURTON, AS TRUSTEE OF THE
MARVIN 0. BURTON FAMILY TRUST
DATED MAY 25, 1982
NB1-143167.V1 01/12/93
EXHIBIT F
FORM OF PURCHASE MONEY DEED OF TRUST
N81 -143164.V1 F-1 01/18/93
RECORDING REOUESTED BY, AND
WHEN RECORDED, MAIL TO:
THE IRVINE C014PANY
c/o Irvine Investment Company
550 Newport Center Drive, Fifth Floor
Post Office Box I
Newport Beach, California 92658-8904
Attention: Mr. Brian McDonald
(Space above for Recorder's Use Only)
PURCHASE MONEY
DEED OF TRUST AND ASSIGNMENT OF RENTS
(333 Sayside Drive)
This PURCHASE MONEY DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is made this day of
� 1993, between MARVIN 0. BUIRTON, AS TRUSTEE OF THE MARVIN 0. BURTON FAMILY TRUST DATED KAY
25, 1982 ("Trustor"), whose address is 333 Bayside Drive, Newport Reach, California 92660, CHICAGO TITLE
INSURANCE COMPANY, a Missouri corporation, whose address is 825 North Broadway, Santa Ana, California 92701
("Trustee'), and THE IRVINE COMPANY, a Michigan corporation, whose address is 550 Newport Center Drive,
Fifth Floor, Post Office Box 1, Newport Beach, California 92658-8904, Attn: Irvine Investment Company - Mr.
Brian McDonald ("BeneficiarYl).
WITNESSETH: That Trustor irrevocably grants, assigns and transfers to Trustee in Trust, with Power of Sale:
GRANTING CLAUSE FIRST
The real property in the County of Orange, State of California, described as:
As per Exhibit A attached hereto and made a part hereof by reference.
Together with (a) all the rights, rights of way, easements, privileges, hereditaments and appurtenances now
or hereafter in any way appertaining or belonging thereto, (b) any additional real property acquired by
Trustor which is merged into or becomes a part of a Legal parcel containing all or any part of such real
property (by reason of a tot Line adjustment, re -subdivision of said real property and other property, or
otherwise), (c) all buildings and improvements of every kind and nature now or hereafter placed or erected
upon said real property, and (d) the rents, issues and profits thereof, subject to the right, power and
authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and
profits.
GRANTING CLAUSE SECOND
ALL that certain personal property used in the operation of the real property described in GRANTING
CLAUSE FIRST, whether now owned or hereafter acquired, including but not limited to all furniture, fixtures
and equipment, including maintenance equipment and other decorations, and all renewals, replacements or
substitutions thereof or additions thereto, and all materials and equipment acquired for use in or to be
incorporated in the improvements constructed or to be constructed on said real property, and ail renewals
and replacements therefor, and ail warranties in which Trustor may now or hereafter have an interest
relating to work, Labor, skill or materials furnished in connection with the construction of any
improvements on said real property'and all plans and specifications which have been or will be prepared by
or for Trustor related to improvements on said real property or to the adjacent Lands of Beneficiary,
whether constructed or not.
ALL of said reat,and personal property granted, assigned and transferred by Trustor to Trustee
together with ail other property hereafter granted, assigned and transferred to Trustee under this Deed of
Trust is herein called the "Property."
For the purpose of securing (1) aLL of the obligations of Trustor under that certain Purchase Money
Promissory Note of even date herewith, in the original principal amount of Three Hundred Seventy -Five
Thousand Dollars ($375,000), executed by Trustor, as maker, in favor of Beneficiary, as payee, and any and
aLL modifications, extensions, renewals and replacements thereof (the "Note), together with interest
thereon, according to the terms of the Note (which, by reference is hereby made a part hereof), and the
performance of each and every obligation, covenant and agreement of Trustor contained in the Note; (2) the
performance of each agreement of Trustor incorporated by reference or contained herein; (3) payment of any
sums and interest thereon which may hereafter be loaned to Trustor, or the then owner of the Property, when
evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust; (4) payment of
all sums, with interest thereon at the rate of interest provided herein, which may be expended by
Beneficiary or Trustee in protecting the security of this Deed of Trust; and (5) performance of any
obligation of Trustor to Beneficiary which may hereafter be evidenced by an agreement or other writing
reciting that such obligation is secured by this Deed of Trust. Notwithstanding the foregoing, this Deed of
Trust shall not secure the performance of any obligations of Trustor under that certain Declaration of
Special Land Use Restrictions, Mortgage Lien and Option to Repurchase of even date herewith by and between
as fsuyer, and Beneficiary, as DecLarant, relating to the Property, or any poFtion nereof (and ar,i
amendments or modifications thereto) (the "Dectaratior0l).
A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep the Property in good condition and repair; not to remove or demolish any
building thereon; to complete or restore promptly and in good and workmanlike manner any building which may
be constructed, damaged or destroyed thereon and to pay when due all claims for Labor performed and
materials furnished therefor; to comply with all Laws affecting the Property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any
act upon the Property in violation of Law; to maintain, cultivate, irrigate, fertiLize, fumigate, prune and
do ail other acts which from the character or use of the Property may be reasonably necessary, the specific
enumerations herein not excluding the general.
NBI-143165.Vl 1 01/12/93
(2) (a) To maintain or cause to be maintained, with a reputable company or companies and
otherwise in form and substance acceptable to Beneficiary, 0) comprehensive general liability insurance, or)
a per occurrence basis, with respect to the Property and the operations of or on behalf of Trustor on or
about the Property, including but not limited to owned and nonowned automobile (vehicle) liability, personal,
injury (including coverage for Groups of Offenses A, B and C with exclusion (c) deleted), blanket
contractual, broad form property damage and product/compLeted operations Liability coverage for not less
than one million dollars (Sl,000,000.00) combined single Limit bodily injury, death and property damage
Liability per occurrence, or the current limit of Liability carried, whichever is greater; 0i) property
insurance against Loss or damage to any improvements now or hereafter Located on the Property by fire and
any of the risks covered by insurance of the type known as "all risks of physical Loss coverage" in an
amount not Less than the full replacement cost of such improvements (exclusive of the cost of excavations,
foundations and footings below the Lowest basement floor) and with a deductible from the Loss payable for
any casualty in an amount which is acceptable to Beneficiary; and (iii) workers compensation insurance in an
amount required by Law, together with employers Liability.
(b) Trustor shalt provide that the policy or policies of cwprehensive general
Liability insurance required above shalt be primary and shalt name Beneficiary as additional insured, as
indicated below, and shalt apply severally to Beneficiary and Trustor, with the provisions that any other
insurance carried by Beneficiary shalt be noncontributing. Such policy or policies shalt contain a
provision that the naming of an additional insured would not negate any right the additional insured would
have had as claimant under the policy if not so named. For purposes of naming Beneficiary as additional
insured, the following provision shalt be included within each applicable policy: "It is understood and
agreed that coverage afforded by this Policy shall also apply to The Irvine Company, a Michigan corporation,
and its officers, directors, agents, employees, divisions, subsidiaries, partners and affiliated companies
as additional insureds, but only with respect to Legal Liability or claims caused by, arising out of or
resulting froin the acts or commissions of the named insured or of others performing acts on behalf of the
named insured or the ownership or development of the Property."
(c) To provide, maintain and deliver to Beneficiary such additional insurance
as may be required from time to time by Beneficiary. During the period of time that any construction is to
take place on the Property, Trustor shalt maintain or cause to be maintained course -of -construction
insurance.
(d) ALL policies of insurance required by the terms of this Deed of Trust shall
be with companies approved by Beneficiary, shalt contain the standard noncontributory mortgagee clause and
the standard Lenders' Loss payable clause, or their equivalents, in favor of Beneficiary, and shalt provide
that the proceeds thereof shalt be payable to Beneficiary to the extent of its interest therein. In
addition, all policies of insurance required by the terms of this Deed of Trust shalt contain an endorsement
or agreement by the insurer that any Loss shalt be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor which might otherwise result in forfeiture of said
insurance and the further agreement of the insurer waiving all rights of set-off, counterclaim or deductions
against Trustor. In the event of the foreclosure of this Deed of Trust or other transfer of title to the
Property in extinguishment, in whole or in part, of the indebtedness secured hereby, all right, title and
interest of Trustor in and to any insurance policy then in force shalt pass to the purchaser or grantee.
Beneficiary shalt be furnished with a certificate of each policy required to be provided by Trustor
hereunder, which certificate shalt provide that the policy may not be modified or cancelled without
thirty (30) days written notice to Beneficiary. Upon request, Trustor shalt furnish Beneficiary with
receipts for the payment of premiums on such insurance policies or other evidence of such payment reasonably
satisfactory to Beneficiary. In the event Trustor does not deposit with Beneficiary a new certificate of
insurance with evidence of payment of premium thereon at Least thirty (30) days prior to the expiration of
any expiring policy, then Beneficiary may, but shalt not be obligated to, procure such insurance and Trustor
shalt pay the premiums thereon promptly upon demand. Beneficiary shalt not by the fact of approving,
disapproving, accepting, preventing, obtaining or failing to obtain any such insurance, incur any Liability
for the form or Legal sufficiency of insurance contracts, solvency of insurers or payment of losses and
Trustor hereby expressly assumes full responsibility therefor and all Liability, if any, thereunder. The
amount collected under any casualty insurance policy may, subject to the provisions of the Ground Lease (as
hereinafter defined), be applied by Beneficiary upon any indebtedness secured hereby and in such order as
Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part
thereof may be released to Trustor. Such application or release shalt not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or Trustee.
(4) To pay: prior to delinquency all taxes and assessments affecting the Property,
including assessments on appurtenant water stock, if any; when due, all other encumbrances, charges and
liens, with interest, on the Property or any part thereof, which appear to be prior or superior hereto; and
all allowable expenses of this Trust.
(5) To pay when due all. utility charges which are incurred by Trustor for the benefit of
the Property or which may become a charge or Hen against the Property for gas, electricity, water and sewer
services furnished to the Property and all other assessments or charges of a similar nature, whether public
or private, affecting the Property or any portion thereof, whether or not such taxes, assessments or charges
are Liens thereon.
(6) Trustor shalt not transfer the Property or any portion thereof or interest therein
without the prior written consent of Beneficiary, which consent shalt not be unreasonably withheld. Without
Limiting the generality of the foregoing, Trustor acknowledges and agrees that it shalt not be unreasonable
for Beneficiary to withhold its consent to any transfer of the Property or an interest therein or a portion
thereof to a person or entity whose net worth is Less than One Million Dollars ($1,000,000) as of the date
Beneficiary may grant or deny such consent in its sole discretion and, if
consent should be given, any such transfer shalt be subject to this Deed of Trust, and any transferee shalL
assume all of Trustor's obligations hereunder and agree to be bound by all provisions and perform all
obligations contained herein. In the event of any such transfer without the written consent of Beneficiary,
Beneficiary may, at its option, without demand or notice, declare at( sums secured hereby immediately due
and payable. Consent to one such transfer shalt not be deemed to be a waiver of the right to require consent
to future or successive transfers. As used herein, the term "transfer" shalt mean: (a) the sate, agreement
to sell, grant of any option to purchase, conveyance or other transfer of the Property, or any portion
thereof or interest therein, whether voluntarily, involuntarily, by operation of law or otherwise, or the
Lease of the Property, or any portion thereof, but shalt not include (i) the conveyance of easements
reasonably necessary for the development of the Property, (ii) the Leasing of space in any improvements now
or hereafter Located on the Property in the ordinary course of Trustor's business, or (iii) the assignment
of the Lessee's interest under that certain ground Lease dated September 21, 1967, as amended from time to
time prior to the date hereof, between Beneficiary, as Lessor, and Marvin 0. Burton, an individual as Lessee
NBl-143165.Vl 01/12/93
(the "Ground Leasee") to a third party provided that such assignment does not require the prior consent or
approval of the Lessor thereunder; (b) any transfer by way of security, including the placing or permitting
the placing on the Property of any mortgage, deed of trust, assignment of rents or other security device,
but shall not include any encumbrance now or hereafter existing solely against the Lessee's LeasehoLd estate
under the Ground Lease; or (c) the transfer of a "controLLing interest" in Trustor or a transfer of a
"controlLing interest" in any general partner of Trustor which is a joint venture or general or timited
partnership, whether voluntarily, involuntarily, by operation of Law or otherwise. For purposes hereof, the
term "controlling interest" shall mean any transfer or other disposition of any interest in such entity
whereby the effective control of the management of such entity is altered, Limited or otherwise modified in
any manner.
(7) Should Trustor fail to make any payment or to do any act as provided in this Deed of
Trust, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon
Trustor and without releasing Trustor from any obligation hereof, may: make or do the same in such manner
and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being
authorized to enter upon the Property for such purposes; appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase,
contest or compromise any encumbrance, charge or Lien which in the judgment of either appears to be prior or
superior hereto; and, in exercising any such powers, pay allowable expenses. Trustor agrees to pay
immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from date of
expenditure at the maximum amount then allowed by Law.
(8) Not to engage in any Hazardous Substance Activity (as hereinafter defined) or allow
any other person or entity to do so in violation of any Environmental Law (as hereinafter defined).
(9) To keep and maintain, and to cause all other persons or entities to keep and
maintain, the Property in compliance with, and not to cause or permit the Property to be in violation of,
any Environimental Law.
(10) To immediately advise Beneficiary in writing of (a) any and all Hazardous Substance
Claims (as hereinafter defined) against Trustor or the Property; (b) any remedial action taken by Trustor in
response to any (i) Hazardous Substance in, on, under or about the Property or (ii) Hazardous Substance
Claims; and (c) Trustor's discovery of any occurrence or condition on any real property adjoining or in the
vicinity of the Property that could cause the Property or any part thereof to be classified as "border -zone
property" under the provisions of California Health and Safety Code Sections 25220 e :' t seq., or any
regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership,
occupancy, transferability or use of the Property under any Environmental Law. Trustor will provide
Beneficiary with copies of all communications with federal, state and Local governments or agencies relating
to Hazardous Substance Claims.
(11) In the event any investigation, site monitoring, containment, cleanup, removal,
restoration or other remedial work of any kind or nature (the 11R 'ial Work") is required under any
Environmental Law, any judicial order or by any governmental entity because of, or in connection with, the
current or future presence, suspected presence, threatened or existing release or suspected release of a
Hazardous Substance in or into the air, soil, groundwater, surface water or soil vapor at, on, urxier or
about the Property or any portion thereof, Trustor shall, within such period of time as may be required
under applicable Law, regulation or order, commence to perform, or cause to be commenced, and thereafter
diligently prosecuted to completion, all such Remedial Work; provided, however, that Trustor shall not
perform, or commence to perform, any Remedial Work without Beneficiary's prior written consent, which
consent may be granted or withheld in Beneficiary's reasonable discretion; provided further, however, that
Beneficiary's prior consent shall not be necessary in the event that the presence of Hazardous Substances
in, on, under or about the Property either poses an immediate threat to the health, safety or welfare of any
individual or is of such a nature that immediate Remedial Work is necessary and it is not possible to obtain
Beneficiary's consent before performing or commencing such Remedial work, provided that in such event
Trustor shall notify Beneficiary as soon as practicable of any Remedial Work so performed or commenced.
Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if particular
Remedial Work is ordered by a court of competent jurisdiction or is imposed upon Trustor (without Trustor's
consent or approval) by a governmental authority with regulatory jurisdiction over the Property. ALL costs
and expenses of such Remedial Work shall be paid by Trustor within ten (10) days of Beneficiary's demand
therefor, which costs and expenses shall include, but shall not be Limited to, the charges of all
contractor(s) and/or consulting engineers, and Beneficiary's attorneys' fees and costs incurred in
connection with monitoring or review of such Remedial Work. In the event Trustor shall fail to timely
commence, or cause to be commenced, or fail to diligently prosecute to completion, such Remedial Work,
Beneficiary may, but shall not be required to, cause such Remedial Work to be performed and all costs and
expenses thereof, or incurred in connection therewith, shall become part of the indebtedness secured hereby.
(12) Beneficiary is authorized, by itself, its agents, employees or workmen to enter at
any reasonable time upon any part of the Property for the purpose of inspecting the same for Hazardous
Substances and Trustor's compliance with Paragraphs A(8) through (11), inclusive, above, and such
inspections may include soil borings and groundwater testing (provided that any damage caused by soil
borings shall be repaired by Beneficiary). Trustor agrees to pay to Beneficiary, within ten (10) days of
Beneficiary's demand therefor, all expenses, costs or other amounts incurred by Beneficiary in performing
any inspection for the purposes set forth in this Paragraph A(12).
(13) Without the prior written consent of Beneficiary, which consent may be granted or
withheld in Beneficiary's sole discretion, Trustor shall not create or permit to continue in existence any
Lien (whether or not such tien has priority over the Lien created by this Deed of Trust) upon the Property
imposed pursuant to any Environmental Law.
(14) Beneficiary shall have the right to join and participate in, as a party if it so
eLects, any LegaL proceeainvz. %ji dGLIons initiated in connection with any Hazardous Substance Claims.
Trustor agrees to pay to Beneficiary, within ten (10) days of Beneficiary's demand therefor, all expenses,
costs and other amounts incurred by Beneficiary in connection with exercising its rights under this
Paragraph A(14).
(15) Trustor agrees to protect, indemnify, defend, save and hold harmless Beneficiary,
its directors, officers, agents and employees from and against any foreseeable or unforeseeable claim,
action, suit, proceeding, Loss, cost, damage (incL ' uding, without limitation, any consequential damage),
Liability, deficiency, fine, penalty, punitive damage or expense (including, without Limitation, attorneys,
fees), directly or indirectly, resulting from, arising out of, or based upon (a) the presence, release, use,
generation, discharge, storage or disposal of any Hazardous Substance in, on, under or about, or the
transportation of any Hazardous Substance to or from, the Property by Trustor, its partners, directors,
officers, agents, employees, contractors, tenants, invitees, successors or assigns or any residual
contamination affecting any natural resource or the environment or (b) the violation, or alleged violation,
NB1-143165.V1 3 01/12/93
of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use,
generation, release, discharge, storage, disposal or transportation of any Hazardous Substance in, on, a -der
or about, to or from the Property by Trustor, its partners, directors, officers, agents, employees,
contractors, tenants, invitees, successors or assigns. This indemnity shaLl include, without [imitation,
any damage, Liability, fine, penalty, punitive damge, cost or expense arising from or out of any claim,
action, suit or proceeding for personal injury (including sickness, disease or death), tangible or
intangible property damage, compensation for Lost wages, business income, profits or other economic loss,
damage to the natural resources or the environment, nuisance, pollution, contamination, Leak, spill, release
or other adverse affect upon the environment. The indemnity obligation on the part of Trustor under this
Paragraph A(15) shalt survive the repayment of the indebtedness secured hereby.
(16) As used in this Deed of Trust, the following terms shaLL have the following
meanings:
"Environmental Laws" means any and all present and future federal, state or Local Laws
(whether under common Law, statute, rule, regulation or otherwise), permits and any other requirements of
governmental authorities relating to the environment or to any Hazardous Substance or Hazardous Substance
Activity (including, without Limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 19W (42 U.S.C. §§9601 et seq.), as heretofore or hereafter amended from time to time, and
T Health and Safety Code and the California Water Code).
the applicable provisions of the California
"Hazardous Substance" means (a) any chemical, compound, material, mixture or substance that
is now or hereafter defined or listed in, or otherwise classified pursuant to, any Environmental Law as a
"hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious
waste," "toxic substance," "toxic pollutant" or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitabiLity, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or 11EP toxicity" and (b) petroleum, natural gas, natural
gas Liquids, Liquified natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas), ash produced by a resource recovery facility utilizing a municipak solid waste stream, and
driLting fluids, produced waters, and other wastes associated with the exploration, development or
production of crude oil, natural gas, or geothermal resources.
"Hazardous Substance Activity" means any actual, proposed or threatened storage, holding,
existence, release, emission, discharge, generation, processing, abatement, removal, disposition, handling
or. transportation of any Hazardous Substance from, under, into or on the Property or surrounding property.
"Hazardous Substance Claims" shall mean any and all enforcement, cLean-up, removal or other
governmental or regulatory actions or orders threatened, instituted or completed pursuant to any
Environmental Law, together with all claims made or threatened by any third party against Trustor,
Beneficiary or the Property relating to damage, contribution, cost recovery compensation, Loss or injury
resulting from any Hazardous Substance.
a. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for public use of or
injury to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply
or release such moneys received by it in the same manner and with the same effect as above provided for
disposition of proceeds of casualty insurance.
(2) That by accepting payment of any sum secured hereby after its due date, Beneficiary
does not waive its right either to require prompt payment when due of all other sums so secured or to
declare default for failure so to pay.
(3) That at any time or from time to time, without Liability therefor and without
notice, upon written request of Beneficiary and presentation of this Deed of Trust for endorsement, and
without affecting the personal Liability of any person for payment of the indebtedness secured hereby,
Trustee shall: reconvey any part of the Property; consent to the making of any map or plat thereof; join in
granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or
charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured hereby have
been paid, and upon surrender of this Deed of Trust to Trustee for cancellation and retention or other
disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall
reconvey, without warranty, the Property then held hereunder. The recitals in such reconveyance of any
matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may
be described as "the person or persons Legally entitled thereto.,,
(5) That as additional security, Trustor hereby gives to and confers upon Beneficiary
the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and
profits of the Property, reserving unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents,
issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard
to the adequacy of any security for the indebtedness hereby secured,� enter upon and take possession of the
Property or any part thereof, in its own name sue for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, less allowable expenses of operation, upon any
indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking
possession of the Property, the collection of such rents, issues and profits and the application thereof as
aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done
pursuant to such notice.
(6) That if by virtue of being the beneficiary under this Deed of Trust, Beneficiary is
made a party defendant to any Litigation concerning this Deed of Trust or the Property or any part thereof
or interest therein, or the occupancy thereof by Trustor, then Trustor shalt indemnify, defend and hold
Beneficiary harmless from all Liability by reason of said Litigation, including reasonable attorneys' fees
and expenses incurred by Beneficiary in any such Litigation, whether or not such Litigation is prosecuted to
judgment., if Beneficiary commences an action against Trustor to enforce any of the terms hereof or because
of the breach by Trustor of any of the terms hereof, or for the recovery of any sum secured hereby, or
participates in any bankruptcy or other similar action regarding Trustor, Trustor shalt pay to Beneficiary
reasonable attorneys' fees and expenses, and the right to such attorneys' fees and expenses shall be deemed
to have accrued on the commenC ement of such action and shaLL be enforceable whether or not such action is
prosecuted to judgment. If Trustor breaches any term of this Deed of Trust, Beneficiary make take whatever
action it deems appropriate, including without Limitation employing an attorney or attorneys, to protect
the security of its rights hereunder and in the event of such action following any breach by Trustor,
NBI-143165.Vl 4 01/12/93
Trustor shalt pay Beneficiary reasonable expenses incurred by Beneficiary in so doing, whether or not an
action is actually commenced against Trustor by reason of breach.
(7) That any of the following events, in addition to those set forth elsewhere herein,
shalt be deemed a default entitling Beneficiary to the remedies set forth herein, in the Note, and otherwise
at Law or in equity:
(a) Trustor shalt file a voluntary petition in bankruptcy or shalt be
adjudicated a bankrupt or insolvent and such adjudication shalt remain unvacated, unstayed or unappealed for
an aggregate of sixty (60) days (whether or not consecutive), or shalt file any petition or answer seeking
or acquiescing in any reorganization, arrangement, composition, readjustment, Liquidation, dissolution or
similar relief for itself under any present or future federal, state or other statute, �aw or regulation
relating to bankruptcy, insolvency or other relief for debtors; or shalt seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of Trustor or of all or any part of the Property, or
of any or all of the royalties, revenues, rents, issues or profits thereof, or shalt make any general
assignment for the benefit of creditors, or shalt admit in writing in inability to pay its it debts
generally as they become due; or
(b) A court of competent jurisdiction shalt enter an order, judgment or decree
approving a petition filed against Trustor seeking any reorganization, dissolution or similar relief under
any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency
or other relief for debtors, and such order, judgment or decree shalt remain unvacated, unstayed or
unappeated for an aggregate of sixty (60) days (whether or not consecutive) from the first day of entry
thereof; or any trustee, receiver or Liquidator of Trustor or of aLL or any part of the Property, or of any
or all of the royalties, revenues, rents, issues or profits thereof, shalt be appointed without the consent
or acquiescence of Trustor and such appointment shalt remain unvacated, unstayed or unappeated for an
aggregate of sixty (60) days (whether or not consecutive); or
(c) A writ of execution or attachment or any similar process shalt be issued or
Levied against all or any part of or interest in the Property, or any judgment involving monetary damages
shalt be entered against Trustor which shalt become a Lien on the Property or any portion thereof or
interest therein and such Lien is senior to the Lien of this Deed of Trust and such execution, attachment or
similar process or judgment is not released, bonded, satisfied, vacated or stayed within sixty (60) days
after its entry or Levy; or
(d) There has occurred a breach of or default under any term, covenant,
agreement, condition, provision, representation or warranty contained in any of the documents or instruments
secured hereby.
(8) That upon default by Trustor in payment of any indebtedness secured hereby or in
performance of any agreement hereunder, or upon a default by 341 Bayside Drive, Inc., a California
corporation in payment of any indebtedness secured by that certain Purchase Money Deed of Trust and
Assignment of Rents of even date herewith executed by such parties, as trustor, in favor of Beneficiary, as
beneficiary, or a default by such parties in the performance of any obligation thereunder, Beneficiary may
declare all sums secured hereby, and the same shalt thereupon become, immediately due and payable without
any presentment, demand, protest or notice of any kind. Thereafter, Beneficiary at its option may:
(a) Commence an action to foreclose this Deed of Trust or specifically enforce
any of the covenants hereof;
(b) Deliver to Trustee a written declaration of default and demand for sale and
of written notice of default and of election to cause the Property to be sold, which notice Trustee shalt
cause to be filed for record. Beneficiary also shalt deposit with Trustee this Deed of Trust and alt
documents evidencing expenditures secured hereby.
After the Lapse of such time as may then be required by Law following the
recordation of said notice of default, and notice of sale having been given as then required by law,
Trustee, without demand on Trustor, shalt sell the Property at the time and place fixed by it in said notice
of sate, either as a whole or in separate parcels, and in such order as it may determine, at public auction
to the highest bidder for cash in Lawful money of the United States, payable at time of sate. Trustee may
postpone sate of all or any portion of the Property by public announcement at such time and place of sate,
and from time to time thereafter may postpone such sate by public announcement at the time fixed by the
preceding postponement. Trustee shalt deliver to such purchaser its deed conveying the Property so sold, but
without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts
shalt be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sate.
After deducting all costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sate, Trustee shall apply the proceeds of sate to
payment of: the costs and expenses of the sate, including but not Limited to Trustee's fees and expenses,
legal fees and disbursements, title charges and transfer taxes; all sums expended under the terms hereof,
not then repaid, with accrued interest at the maximum amount then allowed by Law; aLL other sums then
secured hereby; and the remainder, if any, to the person or persons legally entitled thereto; and/or
(c) Exercise all other rights and remedies provided herein or in the Note or
any other agreement securing all or any portion of the obligations secured hereby, or provided by Law.
(9) That Beneficiary may from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the
Beneficiary and duty acknowledged and recorded in the office of the recorder of the county or counties where
Lfit: rioperty is �—;Zitution of such successor Trustee or
Trustees, who shalt, without conveyance from the Trustee predecessor, succeed to all its title, estate,
rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of
the new Trustee.
(10) That this Deed of Trust applies to and inures the benefit of, and binds all parties
hereto, their heirs, Legatees, devisees, administrators, executors, successors and assigns. In this Deed of
Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the
singular number includes the plural.
(11) That Trustee accepts this Trust when this Deed of Trust, duty executed and
acknowledged, is made 6 public record as provided by Law. Trustee is not obligated to notify any party
NBI-143165.Vl 5 01/12/93
hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor,
Beneficiary or Trustee shalt be a party unless brought by Trustee.
The urdersigr*d Trustor requests that a copy of any notice of default and of any notice of
sale hereunder be mailed to it at its address hereinbefore set forth.
(12) That the rights and remedies of Beneficiary hereunder are cumulative with and in
addition to, and are not in limitation of, all rights and remedies of Beneficiary otherwise avaiLabte at Law
or in equity.
(13) That Trustor waives, to the fullest extent permitted by Law, the right to plead any
and all statutes of (imitation as a defense to any demand on the Note, this Deed of Trust or any other
security instrument now or hereafter securing the Note.
(14) That every provision of this Deed of Trust is intended to be severable. In the
event that any term or provision hereof is declared by a court of competent jurisdiction to be iLlegaL or
invalid for any reason whatsoever, such illegality or invalidity shalt not affect the balance of the terms
and provisions hereof, which terms and provisions shalt remain binding and enforceable, and any provision so
adjudged to be void, invalid, illegal or unenforceable for any reason shalt be replaced, if possible, with a
valid provision that is enforceable and most nearly carries out the orig'inal intent of the parties hereto.
(15) That this Deed of Trust and the Note shalt be governed and construed in accordance
with the taws of the State of California. In the event of any dispute hereunder or under the Note it is
agreed that the sole and exclusive venue shalt be in a court of competent jurisdiction in Orange County,
California, and Trustor agrees to submit to the jurisdiction of such court.
(16) That the Lien of this Deed of Trust shalt at all times be subordinate and subject to
the Declaration.
(17) That, unless Beneficiary so elects as evidenced by the recording of a declaration
so stating, no merger of the fee estate in the Property and the Leasehotd estate of Lessee under the Ground
Lease shalt occur by virtue of the conveyance of the fee estate in the Property to Trustor or the Lien
created hereby, or as a result of any subsequent act or expression of Trustor and/or the Lessee under the
Ground Lease. Unless and until Beneficiary so elects, Beneficiary shalt continue to have and enjoy all of
the rights and privileges of Beneficiary as to the separate estates. In addition, upon the foreclosure of
the Lien created by this Deed of Trust on the Property pursuant to the terms hereof, the Ground Lease shaLL
not be destroyed or terminated by the application of the Law of merger or as a matter of Law or as a result
of such foreclosure unless Beneficiary or any purchaser at the foreclosure sale shalt so elect. Trustor
shalt keep in force the Ground Lease and shalt not modify, amend, terminate, surrender or otherwise alter
the Ground Lease in any manner, and any such purported modification, amendment, termination, surrender or
other alteration of the Ground Lease shalt not be binding upon Beneficiary or effective in the event of any
foreclosure of the lien created by this Deed of Trust or a deed in lieu of foreclosure.
(18) That Trustor shalt cooperate fully with Beneficiary in providing not more
frequently than once per annum, in a prompt and thorough manner upon Beneficiary's request, such financial
statements of Trustor, records of income and expenses concerning the Property, tenant Leases and other
information concerning the Property as Beneficiary may reasonably request.
MARVIN 0. BURTON, AS TRUSTEE OF THE
MARVIN 0. BURTON FAMILY TRUST
DATED MAY 25, 1982
KB1-143165.V1 01/12/93
STATE OF CALIFORNIA
COUNTY OF ORANGE
On personaLLy appeared
personaLLy known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf
of which persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said County and State
NB1-143165.V1
-01/12/93
EXHIBIT A
DESCRIPTION OF LAND
333 Baysid
Parcel 1:
Lot 8, in the City of Newport Beach, County of Orange, State of California as per map recorded in
Book 16, Page 10, Parcel Maps, in the office of the County Recorder of said County.'
Parcel 2:
A non-exctusive easement for ingress and egress over Lots A and C as shown on a map filed in Book
16, Page 10, Parcel Maps, in the office of the County Recorder of said County, described as follows:
Beginning at the most Easterly corner of said Lot C; thence along the boundary Line of said Lot C the
following three courses North 84* 211 1111 West 122.02 feet, North 44* 331 091, West 39.05 feet and North 5*
28, 3211 East 22.59 feet to a point on the Southerly Line of the Land described as Parcel 70046-1 in Deed to
the State of California recorded January 10, 1979 in Book 12996, Page 119 of Official Records of said
County, thence along said Southerly Line the following three courses, South a8* 301 591, East 56.66 feet,
Easterly along a tangent curve concave Southerly having a radius of 938.00 feet through a central angle of
2* 43, 0311 an arc distance of 44.49 feet and South 59* 151 3311 East 28.93 feet to a point on the
Southwesterly tine of gayside Drive 76.00 feet wide, being also a point on the Northeasterly tine of said
Lot C; thence along said Northeasterly Line, South 25* 14, 0011 East 48.48 feet to the point of beginning.
NBI-143165.Vl A-1 01/12/93
EXHIBIT G
FORM OF LEASE
N81 -143164.V1 G-1 01/18/93
LEASE AGREEMENT
(333 Bayside Drive)
THIS LEASE AGREEMENT ("Lease") is made this _ day of _, 1993 between THE IRVINE COWANY, a
Michigan corporation ("TIC"), and MARVIN 0. BURTON, AS TRUSTEE OF THE MARVIN 0. BURTON FAMILY TRUST DATED RAY
25, 1982 ("Buyer").
RECITALS
A. TIC and Buyer are the parties to that certain Purchase Agreement and Escrow Instructions dated as
of _, 1993 (the "Purchase Agreement") pursuant to the terms of which TIC agreed to seLL, and Buyer agreed
to purchase, that certain real property more particuLarty described therein (the "Land"). ALL initia(Ly-
capitalized terms not otherwise defined herein shalt have the meanings given such terms in the Purchase
Agreement.
8. Pursuant to the Purchase Agreement and the Grant Deed TIC expressly reserved any and atL Littora(
rights with respect to the waterway adjacent to the Land and the marina Located thereon owned by TIC
(collectively, the "Waterway") and Buyer fully relinquished and released unto TIC any and aLL Littoral rights
that it or its successors and assigns may now or hereafter claim with respect to the Waterway, inctuding,
without Limitation, any such right, title or interest claimed, asserted or resulting from the fact that the Land
abuts the Waterway.
C. Notwithstanding Buyer's express and complete waiver of any and aLL rights, titLe or interest
that Buyer or its successors or assigns may now or hereafter have in or to the waterway as contained in the
Purchase Agreement, Grant Deed and Special Restrictions, Buyer and TIC desire to enter into this Lease, which
Lease shalt govern in the unlikely event that a court or other governmental authority at some future date (the
"Adverse Determination Date") decides that the Littoral rights with respect to the waterway have been
transferred to or are appurtenant to the Land despite the express agreement of Buyer and Seller to the contrary.
NIDW, THEREFORE, the parties hereto hereby agree as follows:
1. LEASE OF WATERWAY. Buyer hereby Leases to TIC and TIC Leases from Buyer for the term, at the
rental, and upon all of the terms and conditions set forth herein, the Waterway.
2. TERM. This Lease shall be for a term commencing on _ , 1993 and shall be in effect for
a period of ninety-nine (99) years. TIC shalt have the option of extending the term of this Lease for
additional five (5) year periods upon ten (10) days written notice to Buyer.
3. RENTAL. Commencing on the Adverse Determination Date, TIC shalt pay to Buyer as rental for the
Waterway the amount of Ten Dollars (S10) per annum, which amount shalt be payable in advance on the first day
of each year of the term of this Lease.
4. USE OF WATERWAY. TIC and its successors and assigns shall be entitled to occupy, use and operate
the Waterway in the manner that TIC or such successors or assigns elects in their sole discretion; provided that
such use and operation by TIC shalt not have a material adverse effect upon Buyer's use and operation of the
Land. TIC and Buyer hereby agree that the present use and operation of the Waterway, and any use and operation
of the Waterway in a manner substantially similar to the present use and operation of the Waterway, does not
and will not have a material adverse effect upon Buyer's use and operation of the Land. Buyer hereby
acknowledges and agrees that it shall not challenge, object to or interfere with TIC's occupancy, use or
operation of the Waterway in accordance with this Section 4.
5. REAL ESTATE TAXES. TIC shall pay all real property taxes, if any, imposed upon the Waterway. In
the event the Land and the Waterway are not at any time separately assessed, the real property taxes shall be
allocated between the Land and the Waterway based upon the method used by the tax assessor in calculating such
taxes. Nothing contained herein shall be deemed or construed to require TIC to pay any taxes, or any other
amounts, attributable to, or retating to, the Land.
6. ASSIGNMENT. TIC shall be entitled to transfer, sublease, assign or hypothecate this Lease and its
interest in t;e Waterway without the consent of Buyer. TIC may, if it so elects, be released from any and aLt
Liability under this Lease in connection with any such transfer, sublease, assignment or hypothecation.
7. SIL)CCESSORS AND ASSIGNS. This Lease shalt be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
8. QUIET ENJOYMENT. Buyer covenants and agrees that TIC, upon paying the rent required hereunder,
shalt quietly have and enjoy the Waterway during the term of this Lease without hindrance or molestation by
anyone claiming by or through Buyer.
9. CHOICE OF LAW. This Lease shall be governed by, and construed and enforced in accordance with, the
Laws of the State of California.
NB1-143168.V1 1 01/12/93
IN WITNESS WHEREOF, TIC and Buyer have executed this Lease as of the date first above written
IfTIC"
THE IRVINE COMPANY,
a Michigan corporation
By:
Its:
By:
Its:
"Buyer"
MARVIN 0. BURTON, AS TRUSTEE OF THE
MARVIN 0. BURTON FAMILY TRUST
DATED MAY 25, 1982
NBl-143168.Vl 01/12/93
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
(With Purchase money MortqaW)
(341 Bayside DLrijj)
0�_,
THIS AGREEMENT ("Agreement") is entered as of_,%,,/,�312 0-0, 1993, by and between THE IRVINE
COWANY, a Michigan corporation ("Setter"), and 341 . �AYSIDE DRIVE, INC., a California corporation ("Buyer").
RECITALS
A. Setter is the fee owner of those certain parcels of land situated in the County of Orange, State of
California, as more particularly described on EXHIBIT A attached hereto and by this reference incorporated
herein (the "Land");
B. The Land is currently subject to a ground Lease dated April 30, 1968, as amended from time to time
prior to the date hereof between Setter, as Lessor, and Balboa Investment Group, a California general
partnership, as Lessee (the "Ground Lessee") (the "Ground Leaself);
C. Buyer desires to purchase Setter's fee interest in the Land, and Setter has agreed to sell and
convey the Land to Buyer, on the terms and conditions set forth below;
NOW, THEREFORE, the parties hereby agree as follows:
1. PURCHASE AND SALE. Upon all of the terms and conditions contained herein, Buyer hereby agrees to
purchase the Land from Setter and Setter agrees to sell the Land to Buyer.
2. ESCROW. Promptly after this Agreement has been signed and delivered by and between the parties hereto,
Setter shall open an -escrow ("Escrow") with Chicago Title Insurance Company, 825 No. Broadway, Santa Ana,
California 92701 ("Escrow Holder"), by delivering a fully executed copy of this Agreement to Escrow Holder.
The parties agree to be bound by the standard escrow General Provisions attached hereto as EXHIBIT B, and
shall execute and deliver to Escrow Holder such other reasonable or customary supplemental escrow
instructions or other instruments as ma be r --A k c U ]A
r "1 7 sciow o er or t e parties hereto in order to
consummate the sate described herein. The attached EXHIBIT B and/or the printed portions of any such
T
instructions shalt not amend or supersede any provision of this Agreement.
/Y E
3. CLOSING OF ESCROW. Subject to the satisfaction of all conditions precedent set forth herein, the
closing ("Closing") of the purchase and sate of the Land shalt take place through Escrow on or before
February� ':' 1993, as such date may be extended pursuant to the provisions of Section 6(i) below to a date
)."Later than February��, 1993, or such other date as the parties may mutually agree in writing (the
osing Date"). Buyerlanjd Setter hereby acknowledge and agree that the Closing must occur concurrently
i h the closing under that certain Purchase Agreement and Escrow Instructions of even date herewith by and
ween Setter, as Setter, and Marvin 0. Burton, as trustee of the Marvin 0. Burton Family Trust dated May
1982, as buyer (the "Related Purchase Agreement") with respect to the real property commonly known as
333 Bayside.
4. PURCHASE PR I CE. The purchase price for the Land (the "Purchase Price") shalt be Six Hundred Seventy -
Five Thousand Dollars ($675,000). The Purchase Price shall be payable through Escrow as follows:
(a) INITIAL DEPOSIT. Concurrently with Buyer's execution and delivery of this Agreement, Buyer shall
deliver t etter the Sum of Five Thousand Dollars ($5,000), which sum shalt be held by Setter and applied
towards the Purchase Price upon Closing, subject, however, to being disbursed to Setter as Liquidated
damages as provided in Section 9(b) below or returned to Buyer as provided in Sections 9 (a) or 17 below.
No interest shall accrue or be paid to Buyer with respect to said deposit.
(b) SECOM DEPOSIT. On or before the "Approval Date" (as that term is defined in Section 6(b) below),
Buyer shalt deliver to Setter the sum of Fifteen Thousand Two Hundred Fifty Thousand Dollars (S15,250),
which surn shall be held by Setter and applied towards the Purchase Price upon Closing, subject, however, to
being disbursed to Setter as Liquidated damages as provided in Section 9(b) below or returned to Buyer as
provided in Sections 9 (a) or 17 below. No interest shall accrue or be paid to Buyer with respect to said
deposit. The initial deposit, and the second deposit when made, shalt hereafter be referred to as the
"Deposits".
(c) CASH AT CLOSING. The additional sum of Two Hundred Seventy -Nine Thousand Seven Hundred Fifty
Dollars (S�_79,750), together with any additional amounts and costs chargeable to Buyer as provided below,
shalt be deposited by Buyer into Escrow not less than twenty-four (24) hours prior to the Closing Date and
shall be disbursed by Escrow Holder to Setter upon the Closing, Less the costs and prorations chargeable to
Setter under Section 5 below.
(d) PURCHASE MONEY NOTE. The balance of the Purchase Price shall be paid by a promissory note (the
"Note") frc(n Buyer to Setter, or order, in the amount of Three Hundred Seventy -Five Thousand Dollars
($375,000). The Note shalt be in form and substance as attached hereto as Exhibit E and by this reference
incorporated herein. The Note shalt be secured by a first deed of trust (the "Purchase Money Deed of
Trust") on the fee interest in the Land, which Purchase Money Deed of Trust shall be in form and substance
as attached hereto as Exhibit F and by this reference incorporated herein. The Note shalt be executed and
delivered to Escrow by Buyer for delivery to Setter at the Closing.
5. COSTS AND PRORATIONS.
(a) CLOSING COST . Buyer and Setter shall each pay one-half (1/2) of the fees and charges of Escrow
Wri]Har. SPQPr qhal! he ' ar the cost of all documentary transfer taxes, and the premium for the Title PoLicy.
Buyer shalt pay the entire cost of, and shall be responsible for obtaining, the "Lender's Policy" (as
defined below) and any extended coverage, ALTA owner's or other title policy or endorsements in excess of
the standard coverage owner's title policy to be provided by Setter, together with any Land surveys required
in connection therewith. Buyer's failure or inability to obtain any such item, policy or endorsement by the
Closing Date shall not be a condition precedent to or result in any delay of Closing. Buyer shall atso
deposit in Escrow, for delivery to Setter at Closing, a Loan fee in an amount equal to one percent (1%) of
the original principal amount of the Note as set forth in Section 4 (e) above. Buyer and Setter shalt each
bear their own respective Legal, accounting and other consultant fees, charges and costs, if any, incurred
in connection with this transaction. ALL recording costs or fees and aLL other costs or expenses not
otherwise provided for in this Agreement shall be apportioned or allocated by Escrow Holder between Buyer
and Setter in the manner customary in Orange County.
(b) TAXES AND ASSESSMENTS. Escrow Holder shall calculate the proration of aLL current real property
taxes and aLL general and special bonds and assessments on the Land between Buyer and Setter as of the
Closing Date based upon the Latest available tax information, using customary escrow procedures, without
N81-143265.Vl 1 01/18/93
regard to any reassessments or subsequent changes. The foregoing computation of proration of taxes by
Escrow Holder is for the convenience of the parties only, and Escrow Holder shall not be concerned with
charging the parties for such prorations of any such taxes and assessments through Escrow since the Ground
Lessee is required to pay atL such taxes under the terms of the Ground Lease. Any real property taxes
Levied under the Supplemental Tax Roll as a result of this saLe,.whether prior to the normal assessment date
or otherwise, shalt be paid solely by Buyer. Escrow Holder shall prorate and charge Buyer for all rental.,
common area maintenance charges, if any, and other sums due and unpaid to Setter under the Ground Lease as
of the Closing Date, and Setter shalt provide such information as Escrow Holder may request to enable Escrow
Holder to calculate such proration. The parties agree that if any rental sum under the Ground Lease is
calculated based on a percentage of sates, revenue or income from the Leased promises and if such rental sum
cannot readily be determined for the then - current reporting period as of the Closing Date, then such sum
shall be deemed unchanged from the Last prior reporting period under the Ground Lease and Setter shall
instruct Escrow Holder as to the amount thereof.
6. 00NDITIONS TO CLOSING. The respective obligations of Buyer and Setter to complete the purchase and
sale of the Land are subject to satisfaction of the conditions precedent set forth below for their
respective benefit at or prior to Closing.
(a) TRANSFER AND POSSESSION. Setter shall deliver through Escrow an executed and recordabLe Grant
Deed in the form attached hereto as EXHIBIT C (the "Grant Deed") sufficient to convey insurable title to
Buyer, subject only to the matters described in Section 6(c). Buyer shalt deliver through Escrow the
executed Note, together with the executed, acknowledged and recordable Purchase Money Deed of Trust
sufficient to convey to Setter an insurable first priority Lien on the fee estate in the Land subject onty
to the matters described in Section 6(c). When all required funds and instruments have been deposited into
Escrow by the appropriate parties, and when aAL other conditions to Closing have been fuLfitlledl Escrow
Holder shall cause to be recorded the Declaration of Special Land Use Restrictions and Mortgage Lien (the
"Special Restridtions") in the form attached hereto as EXHIBIT 0 and, immediately thereafter, the Grant
c
Deed, and inliediately thereafter, the Purchase Money Deed of Trust.
(b) LITLE,APIPROVAL Buyer shaV obtain from Escrow Holder a preliminary title report covering the
nd (the "Title Repori:6). Buyer shall take title to the Land pursuant to this Agreement subject to matters
scribed in Section 6(c), and to all other matters of record shown on said TitLe Report or Listed as
xceptions to coverage therein except such matters as Buyer shalt expressly disapprove by giving written
notice to Setter on or 5)-days-fe i I o*i ng -"er I-&- r-ec-e4pt-<4L -the- T i -t �e R epor-t , but
�atep than thipty (304--days-fol-l-o�+ing-the-date hereo*. (the "Approval Date"), which notice shall
specify reasonable grounds for each such matter so disapproved. Setter shall have ten business (10) days
from its receipt of such notice of disapproval within which to notify Buyer in writing as to whether it
shalt cause the removal of such disapproved exception to coverage under the Title Policy on or before the
Closing Date. Seller shalt have no obligation to remove any such exception to coverage under the Title
Policy except, if applicable, the Lien of the Existing Deed of Trust (as defined in section 6(d) below)
which shall be removed by Setter concurrently with the Closing. The failure by Setter to give Buyer written
notice of its intention to remove any exception to coverage under the Title Policy disapproved by Buyer in
the manner herein provided shalt be deemed an election by Setter not to remove such exception. In the event
that Setter does not so notify Buyer, of its election to cause the removal of such disapproved exception to
coverage under the Title Policy, Buyer may terminate this Agreement, pursuant to Section 9(a) below, by
written notice to Seller and Escrow Holder within ten (10) days thereafter; otherwise, Buyer shalt be deemed
to have waived its disapproval of such exception to coverage under the Title Policy and approved same.
Should Buyer fail to disapprove any matter affecting the condition of title or constituting an exception to
coverage urxier the Title Policy by the Approval Date as set forth above, such matter and/or exception shall
be deemed approved by Buyer.
(c) TITLE CONDITION AT CLOSING. Setter shalt cause Escrow Holder to deliver or commit to deliver to
"er a standard coverage CLTA Owner's Policy of Title Insurance (the "Title Policy") dated as of the
Closing, insuring Buyer in an amount equal to the Purchase Price, and showing title to the Land vested in
Buyer subject only to:
(i) Real property taxes and all unpaid general and special bonds or assessments;
00 The Special Restrictions to be recorded immediately prior to the Grant Deed;
(M) The Ground Lease (it being understood and agreed that it is the intent of Buyer and Setter,
as is more fully set forth in the Special Restrictions, that the purchase of the fee estate
in the Land by Buyer shalt in no event result in a merger of the fee estate in the Land and
the LeasehoLd estates created by the Ground Lease without the consent of Buyer and the
beneficiary of each deed of trust encumbering said fee estate and/or said Leasehold estate
from time to time);
(iv) Any and all oil, oil rights, minerals, mineral rights, natural gas rights, and other
hydrocarbons by whatsoever name known, geothermal steam, any other material resources and all
products derived from any of the foregoing, that may be within or under the Land, together
with the perpetual right of drilling, mining, exploring and operating therefor and storing in
and removing the same from the Land or any other Land, including the right to whipstock or
directionaLLy drill and mine from Lands other than those conveyed hereby, oil or gas wells,
tunnels and shafts into, through or across the subsurface of the Land, and to bottom such
whipstocked or directionaLLy drilled wells, tunnels and shafts under and beneath or beyond
the exterior Limits thereof, and to redriLL, retunneL, equip, maintain, repair, deepen and
operate any such wells or mines; without, however, the right to drill, mine, store, explore
and operate through the surface or the upper 500 feet of the subsurface of the Land;
(Y) Any and all water, rights or interests therein, no matter how acquired by Setter, and owned
— --^-A 6— e-11-- ;� c,nnection with or with respect to the L;%rd, together with the right and
power to explore, drill, redritt, remove and store the same from the Land or to divert or
otherwise utiLize such water, rights or interests on any other property owned or [eased by
Seller, whether such water rights shalt be riparian, overlying, appropriative, Littoral,
percolating, prescriptive, adjudicated, statutory or contractual; but without, however, any
right to enter upon the surface of the Land in the exercise of such rights;
(vi) Nonexclusive easements in gross on, over or across the Land within areas designated or shown
on any recorded parcel or tract map of the Lard for the following existing or proposed
purposes: 0) the installation, emplacement and maintenance of electric, gas, telephone,
cable television, water, sanitary sewer Lines, drainage facilities or any other utilities,
together with the right to enter upon the Land (without unreasonable interfering with Buyer's
reasonable use and enjoyment thereof) in order to service, maintain, repair, reconstruct,
relocate or replace any of such Lines or facilities; provided that such utilities shalt be
installed underground to the maximum extent practicable and the Land and the improvements
N81-143265.Vl 2 01/18/93
r
\T/
upon it shalt be restored and repaired to the condition prior to such installation at the
cost and expense of the exerciser of such easements; and (H) ingress and egress over any
public or private rights of way, bicycle and pedestrian traits or other specific designated
use areas, if any;
(vii) NonexcLusive easements in gross on, over, under or across the Land within 15 feet from aLL
property lines of the Land for the installation, emplacement, repair, replacement, operation
and maintenance of electric, gas, telephone, cable television, water, sanitary sewer Lines,
drainage facilities or any other utilities (provided, that such utilities shalt be installed
underground to the maximum extent practicable so Long as such installation does not
unreasonably interfere with the use of the Land and the Land and the improvements upon it
shalt be restored and repaired to the condition prior to such installation at the cost and
expense of the exerciser of such easements) and monument, directional or other signs;
(viii) NonexcLusive easements in gross on, over or across the Land within areas which are presently
used by the public or adjoining landowners as common streets, passage ways, driveways,
entrance ways or access ways which shalt not unreasonably interfere with Buyer's reasonable
use and enjoyment thereof, together with the right to enter up -on the Land (without
unreasonably interfering with Buyer's reasonable use and enjoyment thereof) in order to
service, maintain, repair, reconstruct, relocate or replace any of such streets or ways;
provided, no adjoining Landowner shalt have any obligation to service, maintain, repair,
reconstruct, relocate or replace such streets or ways or to pay the costs thereof unless
specifically agreed to in writing by such Landowner;
Ox) Any and all Littoral rights with respect to the Waterway (as hereinafter defined). By its
acceptance of the Grant Deed Buyer and its successors and assigns hereby expressly and futLy
relinquish and release unto Setter any and all Littoral rights that they may now or hereafter
claim with respect to the Waterway, including, without Limitation, any such right, title or
interest claimed, asserted on resulting from the fact that the Land abuts the Waterway and
Buyer and its successors and assigns fully and unconditionally waive any and at[ rights they
may now or hereafter have or assert to enjoy, invoke or use the Waterway or any Littoral
rights relating thereto and acknowledge and agree that by their acceptance of the Grant Deed
Buyer and its successors and assigns are estopped from asserting or exercising any rights to
enjoy, invoke or use the Waterway or any Littoral rights relating thereto at any time now or
hereafter. By its acceptance of the Grant Deed Buyer acknowledges and agrees that Setter and
its successors and assigns shalt be entitled to own, occupy, use and operate the Waterway in
the manner that Setter, or such successors and assigns, elect in their sole discretion and
Buyer and its successors and assigns shalt not at any time in the future assert any right,
title or interest with respect to the Waterway or challenge, object to or interfere with the
ownership, occupancy, use or operation thereof;
M NonexcLusive easements in gross on, over or across the Land for the installation,
emplacement, repair, replacement operation and maintenance of the bulkhead adjacent to the
Waterway, together with all systems, tie rods, concrete panels, rockfiLL, tie -back anchor
blocks, railings and any other components of such bulkhead or relating thereto, together with
the right to enter upon the Land in connection therewith.
(xi) The printed exceptions contained in the Title Policy;
(xii) ALL recorded covenants, conditions and restrictions and other matters shown on the Title
Report that are set forth above or that have been approved or deemed approved by Buyer
pursuant to the express provisions of Section 6(b);
(xiii) Ali other matters affecting title to the Lard approved in writing or deemed approved by Buyer
pursuant to the express provisions of Section 6(b), which approval shall not unreasonably be
withheld, delayed or conditioned.
(d) EXISTING DEED OF TRUST. The Land may currently be encumbered by a blanket deed of trust to Ticor
Title Insurance Company of California, as Trustee, for the benefit of The Prudential Insurance Company of
America, which deed of trust was recorded September 7, 1983 as Instrument No. 83-391528 in the Official
Records of Orange County, California (the "Existing Deed of Trust"). If so, Escrow Holder is hereby
instructed to cause the Existing Deed of Trust to be reconveyed as to (and only as to) the Land at the
expense of Setter and concurrently with the Closing.
(e) LENDER'S POLICY. Buyer shall cause Escrow Holder to deliver or commit to deliver to Setter an
ALTA Lender's Policy of Title Insurance (the "Lender's Policy") dated as of the Closing, insuring the first
Lien priority of the Purchase Money Deed of Trust in favor of Setter as to the fee interest in the Land.
The Lender's Policy shalt have a liability amount equal to the principal amount of the Note and shall show
title to the Land vested in Buyer subject only to the matters set forth in Section 6(c) above.
M CREDIT REVIEW. Setter shall have until fifteen (15) days prior to the Closing Date (such date
being referred to as the "Credit Review Date") to review and approve the creditworthiness of Buyer, which
determination shalt be made by Setter in its sole and absolute discretion. Buyer agrees to cooperate fully
with Setter in providing, in a prompt and thorough manner, such financial statements of Buyer and other
information (collectively the "Financiall information") as Setter or its agents may reasonably request to
facilitate such financial review. The foregoing conditions shall be deemed satisfied unless Setter notifies
Buyer and Escrow Holder in writing, on or before the Credit Review Date, of Seiler's election to terminate
this Agreement for failure of either of said conditions pursuant to the provisions of Section 9(a).
(g) FIKMCIAL REVIEW. Setter shalt also make available for Buyer's inspection the books and records
of Setter nertainina to the Land not Less than ten (10) days prior to the Approval Date. Buyer shall be
deemed to have approved all such matters unless it has delivered to Setter and Escrow Holder written notice
of disapproval on or before the Approval Date. Setter hereby represents and warrants to Buyer that Setter
has not concealed or knowingly failed to make available to Buyer any of Seller's books and records relating
to the Land or the Ground Lease. Should Buyer fail to disapprove any matter by the Approval Date as set
forth above, such matter shalt be deemed approved. Should Buyer timely deliver a written notice of
disapproval as aforesaid, then unless otherwise agreed by both parties, the Agreement shalt terminate
pursuant to Section 9(a) below.
(h) PAST DUE RENT. Prior to the Closing Date the Ground Lessee shalt have paid to Setter all past due
rent and other charges owing to Setter under the Ground Lease.
0) MARINA PERMITS. Setter shall have received assurances satisfactory to Setter that the City of
Newport Beach, and any other applicable governmentaL authority, consents to the continued ownership, use and
operation by Setter of the marina adjacent to the Land, and that the City of Newport Beach, or such other
N81-143265.Vl 3 01/18/93
I
applicable governmental authority, will not deny the issuance of a permit for such ownership, use and
operation as a result of the consismiation of the sale of the Land as set forth in this Agreement. SeLter!
shalt use its best efforts to obtain such assurances at least t�irty (30) days prior to the Closing Date arK
if such assurances are not received on or before 30 days prior to scheduled Closing Date the Closing Date,
shalt be extended to the date which is thirty (30) days after Setter's, receipt of such assurances; provided
that in no event shalt the Closing Date be extended beyond February,-`,, 1993. The condition set forth in'
this Section 60) is solely for the benefit of Setter.
7. NO ASSIGNMENT BY BUYER PERMITTED. Buyer may not assign its interest under this Agreement without the�
express prior written consent of Setter, which consent may be given or withheld by Seller in its sole
discretion, and any such attempted assignment made in violation of this provision shalt be null and void.!,
Notwithstanding the foregoing, Setter agrees not to withhold its consent to an assignment by Buyer of itsl
rights hereunder to the existing Ground Lessee or any existing subLessees, a corporation owned or control I Led
by the Ground Lessee or any existing sublessee or other entities (such as a general or limited partnershi p)
owned by the Ground Lessee or such subLessees or owned by an entity in which the ownership is more than :�
fifty percent (50%) in Buyer, provided that any such entity agrees to assume a1,1L obligations of Buyer under
this Agreement and that any such assignment, or the purchase of the Land by such assignee, does not and w : �tL
not result in a merger of the fee estate in the Land and the teasehoLd estate of Buyer created by the Ground
Lease and/or effect a termination of the Ground Lease. Notwithstanding Setter's approval of such assignment
by Buyer, Buyer shalt remain obligated under this Agreement unless Setter determines, in its sole but i
reasonable discretion, that the financial ability, business experience and reputation of the proposed
assignee is equal to or greater than the financial ability of Buyer on the date of this Agreement. For
purposes of this Section, the term "control" shalt mean management of the day-to-day operations of such
entity and, in the case of a corporation, ownership of at least fifty-one percent (51%) of aLL classes of�
outstanding voting stock of such corporation, and, in the case of a partnership, ownership as a general 1
partner of at Least fifty-one percent (51%) of the interest in profits and Losses and cash flow of such
partnership. Promptly after any such assignment, Setter shalt be furnished with copies of the final
executed assignment documents.
8. TIME OF THE ESSENCE AND ESCROW CANCELLATION. Time is of the essence of every provision of this
Agreement in which time is an element. Failure by any party to perform any obligation within the time a
on the terms ard conditions required hereunder shalt discharge the other party's duties and obligations
perform hereunder upon written notice or demand from the other party. However, if Escrow is not in
condition to close by the agreed Closing Date, Escrow Holder shaLL continue to comply with the instructi
contained herein until a written demand has been made by a party entitled to do so for the cancellation
Escrow. Escrow Holder shalt notify all other parties to this Agreement of any such demand, and shalt
immediately cancel Escrow without any further instructions from any party.
TERMINATION RIGHTS. The parties shalt have the right to terminate this Agreement as follows:
(a) FAILURE OF CONDITIONS. If Setter fails to perform any covenant when due hereunder, or if Se[Leri
is not in a position by the Closing Date to convey title to the Land subject only to the matters described
in Section 6(c) above, and Buyer is unwitting to accept such title to the Land as Setter may be able to
convey without any reduction in the Purchase Price, then Buyer may, in addition to any rights or remedies�
available to Buyer at Law, terminate this Agreement and the Related Purchase Agreement and the Escrow by
giving written notice thereof to Setter and Escrow Holder, or Buyer may waive disapproval and acquire the
Land and the Land covered by the Related Purchase Agreement in accordance with the terms hereof and of the
Related Purchase Agreement, but in no event may Buyer unilaterally extend the Closing Date beyond the date!
provided in Section 3. In the event of any such termination, or if this Agreement and the Related Purchase
Agreement are duty terminated pursuant to Sections 6(f) or 6(g) above, Setter and/or Escrow Holder shalt :i
promptly return to Buyer all sums theretofore delivered by Buyer pursuant to Section 4 above and under the'
Related Purchase Agreement and held by either of them. Additionally, Escrow Holder shalt return all
instruments to the parties who deposited same, and all title and escrow cancellation charges shalt be i
divided equally between the parties (except that Setter shalt pay all of such cancellation charges if thel
termination is due to Setter's default).
(b) SELLER'S RIGHTAIQUIDATED DAMAGES. If Buyer fails to deposit any required sums by the prescribed
time or in the prescribed manner hereunder or under the Related Purchase Agreement, or to perform any other
covenant when due hereunder or under the Related Purchase Agreement, or if Buyer commits any other breach of
this Agreement or of the Related Purchase Agreement, or if Escrow fails to close due to any reason not
described in Section 9(a) above or Section 17 below or of the Related Purchase Agreement, then Seller at
its option, may terminate this Agreement and the Related Purchase Agreement and Escrow by giving writ;en
demand to Buyer and Escrow Holder. Thereupon Escrow shalt be canceled, all instruments shalt be returned to
the respective parties who deposited same, and Buyer shalt pay all title and escrow cancellation charges and
fees.
IN ADDITION, THE PARTIES AGREE THAT SELLER SHALL HAVE SUSTAINED DAMAGES RESULTING FROM BUYER'S FAILURE TO
PERFORM, WHICH DA14AGES ARE DIFFICULT AND IMPRACTICABLE TO ASCERTAIN. ACCORDINGLY, SELLER SHALL BE ENTITLED
TO RETAIN THE ENTIRE DEPOSITS SPECIFIED IN SECTIONS 4(a) AND 4(b) ABOVE AND LINDER THE RELATED PURCHASE
AGREEMENT AS A LIQUIDATED AND XREA LE ESTIMATE OF SUCH DAMAGES FOR BUYER'S BREACH OR FAILURE TO COMPLETE
71 -7
THE PURCHASE OF THE LAND A ROV HEREINABOVE, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671 AND 167
S P H
AND
S
IN SLACH EVENT, ESCROW HOLDER I S EREBY IRREVOCABLY INSTRUCTED BY BUYER AND SELLER TO DISBURSE IMMEDIATELY�T'0
SELLER, UPON DEM.AND OF SELLER ONE, SLJCH PORTION, IF ANY, OF THE DEPOSITS THAT HAVE BEEN DELIVERED TO AND!
ARE BEING HELD BY ESCROW R.
1�/� All L/7�_
O?f� SetLer's
aLs Initiats
:-_rees to cooperate in good faith with each
other, and to execute and deliver such further documents and perform such other acts as may be reasonably
necessary or appropriate to consummate and carry into effect the transactions contemplated under this
Agreement.
11. BUYERPS ACKNOWI-EDGMENTS. Buyer hereby acknowledges and agrees to each of the following provisions:
(a) RECEIPT OF DOCUMENTS. Buyer has received and read, understands and agrees to be bound by the
terms and conditions of the Ground Lease and the Special Restrictions.
(b) PRIOR INVESTIGATIONS. Buyer acknowledges that they are or are affiliated with the Ground Lessee
of the Land pursuant to the Ground Lease and the improvements on the Lard were constructed by the Ground
Lessees, or its predecessor -in -interest, and the Ground Lessee is in possession of and operates said
improvements. Accordingly, Buyer agrees that it has fully inspected the Land, is familiar with the terms
and conditions of the Ground Lease and the condition of the improvements, and that it is purchasing the La
N81 -143265.V1 4 01/1
( A/ E
0
\T1
on an "as is" basis. Buyer acknowledges that neither Setter, nor any officer, employee or agent of Setter,
has made any representations or warranties whatsoever with respect to the Land, its condition, its
suitability for any use, or any other matter. Buyer agrees that no patent or latent condition affecting the
Land or any improvement thereon, whether or not known or discover,ibl,e or hereafter discovered, shaLL give
rise to any right of damages, rescission or other remedy against Setter. The provisions of this Section 11
are intended to survive the Closing in accordance with Section 13 below.
12. NOW -FOREIGN STATUS OF SELLER. In accordance with Section 1445 of the Internat Revenue Code, SeLLer
hereby represents, warrants and certifies to Buyer, under penalty of perjury, that SeLter is not now, and at
the Closing will not be, a "foreign person" (that is, a foreign corporation, foreign partnership, foreign
trust or foreign estate, as those terms are defined in the Internal Revenue Code and reguLations promuLgated
thereunder); that Setter's tax identification number is 13-3177751; and that Buyer need not withhoLd tax at
the Closing as a result of this transfer.
13. SURVIVABILITY OF COVENANTS. ALL covenants of Buyer or Setter which are express1ty intended hereunder to
be performed in whole or in part after the Closing, and a1l[ representations, warranties and indemnities by
either party to the other, shalt survive the C,Losing and be binding upon and inure to the benefit of the
respective parties hereto arid their respective heirs, successors and permi ' tted assigns. Any agreements,
understandings, warranties or representations not expressly contained herein shall in no way bind either
Setter or Buyer. Setter and Buyer each expressly waives any right of rescission and all claims for damages
by reason of any statement, representation, warranty, promise arid/or agreement, if any, not contained in or
attached to this Agreement.
14. BROKERS' COMMISSIONS. Each of the parties represents to the other that no brokerage commission,
finder's fee or other similar compensation of any kind is due or owing to any person or entity other than CS
Commercial in connection with the transactions covered by this Agreement. Setter shall be responsibLe to
pay CB Commercial any fees to which it may be entitled in connection with the transactions covered by this
Agreement since CS Commercial has represented Setter in connection with such transactions. Each party
agrees to and does hereby indemnify arid hold the other harmless from and against any and all costs,
liabilities, tosses, damages, claims, causes of action or proceedings which may result from any broker,
agent, finder, or similar person, Licensed or otherwise, claiming through, under or by reason of the conduct
of the indemnifying party in connection with the transactions covered by this Agreement.
15. WAIVER, CONSENT AND REMEDIES. Each provision of this Agreement to be performed by Buyer and/or Setter
shalt be deemed both a covenant and a condition and shall be a material consideration for the other party's
performance hereunder, and any breach thereof by either party shall be deemed a material default hereunder
by such party. Either party may specifically and expressly waive in writing any portion of this Agreement
or any breach thereof, but no such waiver shall constitute a further or continuing waiver of any preceding
or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require
further compliance by the other party with any breach or provision so waived. The consent by one party to
any act by the other for which such consent was required shall not be deemed to imply consent or waiver of
the necessity of obtaining such consent for the same or any similar acts in the future. No waiver or
consent shalt be implied from silence or any failure of a party to act, except as otherwise specified in
this Agreement. ALL rights, remedies, undertakings, obligations, options, covenants, conditions arid
agreements contained in this Agreement shall be cumulative and no one of them shall be exclusive of any
other. Except as otherwise specified herein, either party may pursue any one or more of its rights, options
or remedies hereunder or may seek damages or specific performance in the event of the other party's breach
hereunder, or may pursue any other remedy at law or equity, whether or not stated in this Agreement.
16. ATTORNEYS# FEES. In the event of any declaratory or other Legal or equitable action instituted between
Setter, Buyer and/or Escrow Holder in connection with this Agreement, then as between Buyer and Setter the
prevailing party shalt be entitled to recover froom the Losing party aLL of its costs and expenses, including
court costs and reasonable attorneys' fees.
17. CONDEMNATION. If at any time prior to the Closing, Legal proceedings are commenced under the power of
eminent domain with respect to aLL or any portion of the Lard, either Setter or Buyer may terminate this
Agreement and cancet Escrow by giving written notice to Escrow Holder arid the other party. Thereupon, all
instruiments shall be returned to the respective parties who deposited same, Buyer and Setter shall each pay
one-half (1/2) of aLL title and Escrow cancellation charges, all other funds then deposited by Buyer in
Escrow arid any funds paid outside of Escrow by Buyer shall be returned to Buyer, arid each party shall be
excused frorn any further obligations hereunder or liability to the other party. in the event of such
termination, Buyer shall have no right to participate in the receipt of any cordemnation proceeds from the
taking; provid , however, that the rights of Setter and the Lessee under the Ground Lease in the event of
condemnation shall continue in full force arid effect. Should neither party elect to terminate this Agreement
as aforesaid, there shall be no price adjustment as a result of the taking, and Setter shall not be entitled
to any condemnation award as may be attributable to the Land.
18. DAMAGE OR DESTRUCTION. In the event any of the improvements on the Land are damaged or destroyed prior
to the Closing, Buyer agrees that it shall bear the risk of such loss and shall have no right to terminate
this transaction; provided, however, that as of the Closing Date, Buyer shalt be entitled to all sums, if
any, payable to the Lessor under the Ground Lease as the result of such damage.
19. AUTHORITY TO BIND. Each of the individuals signing this Agreement on behalf of any entity thereby
specifically represents and warrants that such signatories, either collectively or individually, have the
authority to bind that entity to all provisions of this Agreement.
20. NOTICES. Any notice, request, demand, consent, approval or other communication required or permitted
hereunder or by Law shalt be validly given or made only if in writing and delivered in person or by
independent courier service to the other party at the address(es) below, or deposited inrthe United States
mail, duty certified or registered (return receipt'requested), postage prepaid, and addressed to the party
for whom intended, as follows:
If to Setter:
copy to:
If to Buyer:
NB1-143265.V1
IRVINE HOTEL COMPANY
P.O. Box I
Newport Beach, CA 92658-8904
Attention: Stephen Brahs
IRVINE HOTEL COMPANY
P.O. Box I
Newport Beach, CA 92658-8904
Attention: General Counsel
c/o MARVIN 0. BURTON, AS TRUSTE
121 East Hopkins
Aspen, Colorado 81611
5
01/18/93
C/o PATRICK C. STACKER
One World Trade Center, Suite 1800
Long Beach, California 90831
c/o ROGER GEYER
8251 Westminster Avenue
Westminster, California 92683
Copy to: Douglas P. Allen, Esq.
600 East Hopkins, Suite 302
Aspen, Colorado 81611
Any party may from time to time, by written notice to the other, designate a different address which shatL
be substituted for that specified above. If any notice or other document is sent by mail as aforesaid, the
same shall be deemed fully delivered and received upon delivery to the addresses set forth above; provided
that if delivery is refused by the party to whom such notice is addressed, delivery shall be deemed to have
occurred upon such refusal.
21. GENDER AND NUMBER. in this Agreement (unless the context requires otherwise), the masculine, feminine
and neuter genders a�� the singular and the plural shall be deemed to include one another, as appropriate.
22. ENTIRE AGREEMENT. This Agreement and its exhibits constitute the entire agreement between the parties
hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the
terms and conditions thereof. Prior agreements, representations, negotiations and understandings of the
parties hereto, orat or written, express or implied, are hereby superseded and merged herein.
23. CAPTIONS. The captions used herein are for convenience only and are not a part of this Agreement and
do not in any way Limit or amplify the terms and provisions hereof.
24. GOVERNING LAW. This Agreement and the exhibits attached hereto have been negotiated and executed in
the State of California and shaLL be governed by and construed under the laws of the State of California.
25. INVALIDITY OF PROVISIONS. If any provision of this Agreement as applied to either party or to any
circumstance shall be adj ged by a court of competent jurisdiction to be void or unenforceable for any
reason, the same shalt in no way affect (to the maximum extent permissible by Law) any other provision of
this Agreement, the application of any such provision under circumstances different from those adjudicated
by the court, or the validity or enforceability of the Agreement as a whole, and any provision so adjudged
to be void, invalid, illegal or unenforceable for any reason shalt be replaced, if possible, with a valid
provision that is enforceable and most nearly carries out the original intent of the parties hereto.
26. AMENDMENTS. No addition to or modification of any provision contained in this Agreement shalt be
effective unless fully set forth in writing and signed by both Buyer and Setter.
27. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shaLL be
deemed an original, but aLL of which together shaLL constitute but one and the same instrument.
28. NO RECORDATION. Neither Buyer nor Setter shall, without the consent of the other, record this
Agreement, or a short form or memoranckin thereof, or take any other action which would materially and
adversely affect the marketability of Setter's title to the Land.
29. LEASE ASSIGNMENT. Concurrently with the Closing, Setter shalt be deemed to have assigned its interest,
as Lessor, in the Ground Lease to Buyer, and Buyer hereby agrees to assume aLL of the obligations and
liabilities of the Lessor thereunder and to indemnify, defend and hold Setter harmless from and against aLL
such obligations and Liabilities from and after the Closing. �0
30. ADJACENT MARINA. Buyer hereby acknowledges and agrees that, as a material inducement to Setter to
enter into the transaction contemplated by this Agreement, the property being sold to Buyer pursuant to this
Agreement does not, and shatt not at any time in the future, include any Littoral rights with respect to the
waterway adjacent to the Land and the marina currently Located thereon owned by Setter or any future
improvements Located thereon or any enhancements, repairs or replacements thereof (collectively, the
"Waterway"), all of which are expressly reserved by Seller. Buyer further acknowledges that the rights
retained by Setter pursuant to this Section 13 enhance the value of Land owned or Leased by Setter and/or
the other interests which Setter may have in such Land and that Setter would not have entered into this
Agreement if the property being sold to Buyer included any Littoral rights with respect to the Waterway and
that the Purchase Price for the Land has been established by Setter based upon Setter's continued right to
own, occupy, use, operate, Lease or otherwise alienate the Waterway.
Buyer hereby expressly and fully relinquishes and releases unto Setter any and all Littoral rights or any
other rights that it may now or hereafter have or claim with respect to the Waterway, including without
Limitation any such right, title or interest claimed, asserted or resulting from the fact that the Land
abuts the Waterway. Buyer further fully and unconditionally waives any and all rights it may now or
hereafter have or assert to enjoy, invoke or use the Waterway or any Littoral rights relating thereto and
acknowledges and agrees that by entering into this Agreement Buyer is estopped from asserting or exercising
any rights to enjoy, invoke or use the Waterway or any Littoral rights relating thereto at any time now or
hereafter. Buyer acknowledges and agrees that Setter, or its successors and assigns, shall be entitled to
own, occupy, use, operate, Lease or otherwise alienate the Waterway in the manner that Setter, or such
successors and assigns, elect in their sole discretion. Buyer hereby covenants and agrees that it shall not
at any time in the future assert any right, title or interest with respect to the Waterway or challenge,
object to, or interfere with, Setter's or any successors' or assigns' ownership, occupancy, use, operation,
lease or alienation thereof. In the event Buyer, or any of its successors or assigns, at any time in the
future asserts any right, Llt�e or inteiazL .;,.. — .:— -.� ....... — - L, to, or
interferes with Setter's ownership, occupancy, use, operation, lease or alienation thereof, Setter shall be
entitled to exercise any and aLL of its rights and remedies under the Special Restrictions, including,
without Limitation, the right to receive payment of an additional purchase price from Buyer, or such
successors or assigns, as provided in Article V of the Special Restrictions.
Notwithstanding anything to the contrary set forth herein, Buyer and Setter acknowledge that, in the highly
unlikely event that a court or other governmentaL authority at some future date decides that the Littoral
rights have been transferred to or are appurtenant to the property conveyed to Buyer despite the express
agreement of Buyer and Setter to the contrary, Buyer and Setter have entered into a Lease of the Waterway in
the form attached hereto as EXHIBIT G, which Lease shall remain in full force and effect in the event of any
such determination adverse to Setter's ownership, occupancy, use, operation, Lease or alienation of the
Waterway. Notwithstanding the foregoing, Buyer acknowledges that such Lease is being entered into solely as
a means of fulfilling the express intent of the parties that Setter shaLL retain aLL Littoral rights
\ T
relating to the Land and the lease, and its execution thereof by Setter, shatt not be deemed or construed to
confer upon Buyer, or.its successors and assigns, any tittoraL rights relating to the Land. Seller and its
successors and assigrAhalL retain the obligation to maintain the bulkhead adjacent to the waterway, /Y CE?�,r
together with all systems, tie rods, concrete panels, rockfiLL, tie -back anchor blocks, railings and any
other components of such bulkhead or relating thereto; provided that in no event shalt Setter or its
successors or assigns be responsible for any maintenance or changes to the bulkhead or any of the foregoing
components which results from, or is necessary in connection with, a use of the Land which differs from the
use of the Land existing as of the date of this Agreement. Setter shaLL be responsible for paying any real
property taxes and assessments, if any, attributable to or relating to the Waterway; provided that nothing
contained herein shalt be deemed or construed to require Setter to y any taxes, or,any other amounts,
attr(�7�6
'�table to, oLrsrjeLating to, the LaD4,
The p ovisions of his Sec ve— Losing in a an-ce with the- e6tion 13
is 6 cc d
tion 30 OaLL iurvi' thr p0jj�i s i �ons ofS
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
SELLER:
THE IRVINE COW
a Michigan = ation
By
Ri ard _� Sim
Ex ut' -Vice Presi
By:
&6naLd McNutt'
Vice President
Pio
0
Cz
N81-143265.Vl
E
7
BUYER:
341 BAYSID I , INC.,
a Cali or poration
By
Its:
By:
Its: J"/,
01/18/93
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
341 Bayside
Parcel 1:
Los A, in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book
16, Page 10, Parcel Maps, in the office of the County Recorder of said County.
Parc 2:
A n exclusive easement for the encroachment of the second story of the building located on the above
described rcel 1 onto the adjacent property and any replacements or repairs thereof; provided that any
such repL c nts or repairs shaLL only be constructed within the air space that the second story of the
building curr tLy occupies as of the date hereof and provided further that in no event shall the easement
granted ereby deemed or construed to extend beyond the area currently occupied by the second story of
such Wing.
2 '
ex c Lus
r c el
c nts
curr tL
a y
r b
i
A n *kd
ri bed
r epL
d ng
t ed
T
N81-143265.Vl A-1
01/18/93
EXHIBIT 6
GENERAL PROVISIONS
PRORATE all items required in this escrow as of the date of close of escrow or as otherwise set forth
in Agreement of the Parties., Assume a 30 -day month in any prorate herein provided, and unless the partfes
otherwise instruct you, you are to use the information contained in the Last available tax statement, renta�
statement as provided by Seller beneficiary's statement, and fire insurance policies delivered into escrow
for the prorates provided above. In the event any beneficiary's statement reveals a deposit, account or
funds for a future payment of taxes, insurance or other future payment obligations of the Loan you are to
credit Seller and debit Buyer unless otherwise instructed.
YOUR AGENCY AS ESCROW HOLDER shall terminate six months following the date set forth in Agreement of
the parties for the close of escrow (Closing Date), and shall be subject to earlier revocation by receipt by
you prior to close of escrow of written notice signed;
(1) In case this escrow has not been placed in a condition to close by the Closing Date, by any party
hereto, or
(2) if received prior to said date, but after (there shalt have been) a failure of a condition or
performance to be complied with or performed on or before a date, or within a period, stated herein, then by
any party other than a party responsible for such compliance or performance, or
(3) As otherwise set forth in Agreement of the parties. Any such revocation shall be effective upon
receipt of such notice, but you shalt not return the documents or deposits of the revoking party prior to
ten (10) days after you have mailed a copy of such notice to each of the other parties.
YOUR KNOWLEDGE OF MATTERS affecting the property, provided such facts do not prevent compliance with
these instructions, does not create any Liability or duty in addition to your responsibility under these
instructions. No notice, demand or change of instruction, except a demand for revocation made in accordance
with the foregoing paragraph, shatt be of any effect in this escrow unless given in writing by all parties
affected thereby.
PROCEEDS of this escrow shall be disbursed by your check payable to the parties as their names are
signed herein unless otherwise instructed and your checks and documents shalt, be mailed to the addresses set
forth in the Agreement of the parties.
FUNDS DEPOSITED into this escrow are to be maintained in a federally insured trust account, and any
escrow related services provided to escrow holder by any depositury bank or savings and loan association are
hereby consented to and approved. if for any reason funds are retained or remain in escrow after closing
date, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not Less than $10 per
month.
ALL PARTIES TO THIS ESCROW ACKNOWLEDGE THAT CHICAGO TITLE COMPANY DOES NOT PROVIDE LEGAL ADVICE NOR HAS
IT MADE ANY INVESTIGATION, REPRESENTATIONS OR ASSURANCES WHATSOEVER REGARDING THE COMPLIANCE OF THIS
TRANSACTION WITH ANY TAX, SECURITIES OR OTHER LAWS OF THE UNITED STATES OR THE STATE IN WHICH THE
TRANSACTION IS CONSUMMATED. ESCROW HOLDER RECOMMENDS THAT THE PARTIES OBTAIN INDEPENDENT LEGAL COUNSEL AS
TO TAX, SECURITIES OR OTHER LEGAL ASPECTS OF THE TRANSACTION.
YOU ARE INSTRUCTED TO FURNISH to any broker or tender identified with this transaction or anyone acting
on behalf of such tender, any information concerning this escrow, copies of all instruction, amendments and
statements upon request.
INDICATE ON DEED to record, ail future tax statements are to be mailed to Buyer at its specified
address unless otherwise indicated in Agreement of the parties.
SELLERS AGREES to hand you the instruments, documents and money required to comply with these
instructions, which you may use, and pay such costs, taxes, assessments and demands to insure title as set
forth herein when you can comply with these instructions and deliver the net proceeds to the order of
Seller.
PAY A COMMISSION in accordance with the instructions contained in separate commission order.
PAY DOCUMENTARY TRANSFER TAX If the documentary tax declaration has not been furnished in connection
with the Deed from Seller herein to Buyer herein, you are instructed to complete and sign the declaration on
such Deed by computation based on full value of real property conveyed Less Liens and encumbrances remaining
thereon at time of conveyance, if any.
EACH PARTY AGREES to pay its own proportionate share of costs and charges incurred herein, including,
but not necessarily Limited to escrow fee, document preparation and special handling fees; title insurance
policy and endorsement fees; costs and charges of Lender(s) or other vendor(s) identified herein;
documentary transfer tax, recording, monument, change of ownership and/or other fees chargeable by the City,
County and/or State in which subject property is Located.
END OF GENERAL PROVISIONS
N81-141265.Vl B-1 01/18/93
EXHIBIT C
FORM OF GRANT DEED
N61 -143265.V1 C-1 01/18/93
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL THIS DEED AND
UNLESS
OTHERWISE SHOWN BELOW, MAIL TAX STATEMENTS 10
N—KF
STREET
ADO Isr. 32
C Ty.
STATtj
Z?
Title Order No ...... ...
.... ... Escrow No...... ....
........ .....
This spoco for Recefd*r'i vt4
I Corporation Grant Deed L
THE UNDERSIGNED CRANTOR(s) DECLARE(s)
DOCUMENTARY TRANSFER TAX is $
0 -unincorporated area 0 City of
Parcel No
X computed on full value of property conveycd, or
C] computed on full value less value of liens or encumbrances remaining at time of sale, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE IRVINE COMPANY
a Corporation organized under the laws of the state of Michigan hereby GRANT(S) to
341 BAYSIDE DRIVE, INC., A CALIFORNIA CORPORATION
i
the following d�escribed real property in the
County of Orange State of California:
See Exhibits A and B attached hereto and
incorporated herein by reference.
Dated
STATE OF CALIFORNIA
COUNTY I OF Orange S.S.
On I - before me,
a Notary. Public In and for said County and State, personally appeared
Uonald McNutt and Ste h n hs
personally known to me (or proved to me on the basis of satisfactory
evidonce) to be the person(s) whose name(s) Is/are subscribed to the
within Instrument and acknowledged to me that he/shelthey executed
the same In hisi(heritheir authorized capecity(les), and that by histher/I heir
signature(s) on the Instrument the person(s), or the entity upon behalf
of which.the person(s) acted, executed the Instrument.
WITNESS my hand and official seal
THE IRVINE COMPANY,
a Michigan Corporation
BY:
u0nald MCNUCL, vice President
BY:
Stephen A. Brahs, AssIt Secretary
Signature (Space aL.)ve for official notarial S-!21)
MAIL TAX STATEMENTS 70 PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY SO SHOWN, MAIL AS DIRECTED ABOVE
Name Street Address 'ity & State
C.TC 1-102 f9-91)
EXHIBIT A TO GRANT DEED
(341 Bayside Drive)
The real property conveyed hereby is described in Exhibit 6 to this Grant Deed.
RESERVING UNTO GRANTOR, its successors and assigns, together with the right to grant and
transfer at[ of a portion of the same, as follows:
A. Any and all oil, oil rights, minerals, mineral rights, natural gas rights, and
other hydrocarbons by whatsoever name known, geothermal steam, any other material resources and aLl pro -ducts
derived from any of the foregoing, that may be within or under the Land, together with the perpetual right
of drilting, mining, exploring and operating therefor and storing in and removing the same from the Land or
any other land, including the right to whipstock or directiona[Ly dritt and mine from Lands other than those
conveyed hereby, oil or gas welts, tunnels and shafts into, through or across the subsurface of the Land,
and to bottom such whipstocked or directionaLLy drilled wells, tunnels and shafts under and beneath or
beyond the exterior Limits thereof, and to redriLL, retunneL, equip, maintain, repair, deepen and operate
any such wells or mines; without, however, the right to drill, mine, store, explore and operate through the
surface or the upper 500 feet of the subsurface of the Land.
B. Any and aLL water, rights or interests therein, no matter how acquired by Grantor,
and owned or used by Grantor in connection with or with respect to the Land, together with the right and
power to explore, drill, redrill, remove and store the same from the Land or to divert or otherwise utiLize
such water, rights or interests on any other property owned or Leased by Grantor, whether such water rights
shalt be riparian, overlying, appropriative, Littoral, percolating, prescriptive, adjudicated, statutory or
contractual; but without, however, any right to enter upon the surface of the Land in the exercise of such
rights.
C. NonexcLusive easements in gross on, over or across the Land within areas designated
or shown on any recorded parcel or tract map of the Land for the following existing or proposed purposes:
0) the installation, emplacement and maintenance of electric, gas, telephone, cable television, water,
sanitary sewer Lines, drainage facilities or any other utitities, together with the right to enter upon the
Land (without unreasonable interfering with Grantee's reasonable use and enjoyment thereof) in order to
service, maintain, repair, reconstruct, relocate or replace any of such Lines or facilities; provided that
such utilities shall be installed underground to the maximum extent practicable and the Land and the
improvements upon it shalt be restored and repaired to the condition prior to such installation at the cost
and expense of the exerciser of such easements; and (H) ingress and egress over any public or private
rights of way, bicycle and pedestrian traits or other specific designated use areas, if any.
D. NonexcLusive easements in gross on, over, under or across the Land within 15 fePt
from aLL property Lines of the Land for the installation, emplacement, repair, replacement, operation and
maintenance of electric, gas, telephone, cable television, water, sanitary sewer Lines, drainage faciLities
or any other utilities (provided, that such utilities shall be installed underground to the maximum extent
practicable so Long as such installation does not unreasonably interfere with the use of the Land and the
Land and the improvements upon it shalt be restored and repaired to the condition prior to such installation
at the cost and expense of the exerciser of such easements) and monument, directional or other signs.
E. NonexcLusive easements in gross on, over or across the Land within areas which are
presently used by the public or adjoining landowners as common streets, passage ways, driveways, entrance
ways or access ways which shall not unreasonably interfere with Buyer's reasonable use and enjoyment
thereof, together with the right to enter upon the Land (without unreasonably interfering with Grantee's
reasonable use and enjoyment thereof) in order to service, maintain, repair, reconstruct, relocate or
replace any of such streets or ways; provided, no adjoining Landowner shalt have any obligation to service,
maintain, repair, reconstruct, relocate or replace such streets or ways or to pay the costs thereof unless
specifically agreed to in writing by such landowner; and provided that Grantee shalt be entitled to relocate
such easements from time to time in its reasonable discretion upon written notice to Grantor provided that
any such relocation shalt not substantially diminish or reduce the access afforded to Grantor or its ability
to service, maintain, repair, reconstruct, relocate or replace any such streets or ways.
F. Any and all Littoral rights with respect to the waterway adjacent to the Land and
the marina currently located thereon owned by Grantor or any future improvements Located thereon or any
enhancements, repairs or replacements thereof (collectively, the "Waterway"). By its acceptance of this
Grant Deed Grantee and its successors and assigns hereby expressly and fully relinquish and release unto
Grantor any and all Littoral rights that they may now or hereafter claim with respect to the Waterway,
including, without Limitation, any such right, title or interest claimed, asserted on resulting from the
fact that the Land abuts the Waterway and Grantee and its successors and assigns fully and unconditionaLty
waive any and all rights they may now or hereafter have or assert to enjoy, invoke or use the Waterway or
any Littoral rights relating thereto and acknowledge and agree that by their acceptance of this Grant Deed
Grantee and its successors and assigns are estopped from asserting or exercising any rights to enjoy, invoke
or use the Waterway or any Littoral rights relating thereto at any time now or hereafter. By its acceptance
of this Grant Deed Grantee acknowledges and agrees that Grantor and its successors and assigns shalt be
entitled to own, occupy, use, operate, Lease or otherwise alienate the Waterway in the manner that Grantor,
or such successors and assigns, elect in their sole discretion and Grantee and its successors and assigns
shall not at any time in the future assert any right, title or interest with respect to the Waterway or
challenge, object to or interfere with the ownership, occupancy, use, operation, Lease or alienation
thereof.
G. Nonexclusive easements in gross on, over or across the Land for the installation,
emplacement, repair, replacement, operation and maintenance of the bulkhead adjacent to the Waterway,
together with at[ systems, tie rods, concrete panels, rockfiLL, tie -back anchor blocks, railings and any
z.=,—onents of such bulkhead or relating thereto, together with the right to enter upon the Land i -
connection therewith.
SUBJECT TO:
1. General and special taxes and assessments for the current.fiscaL year and any and
aLL unpaid bonds and/or assessments.
2. That certain Declaration of Special Land Use Restrictions, Mortgage Lien and Option
to Repurchase executed by Grantor and Grantee, recorded concurrently herewith and incorporated herein by
this reference (the "Declaration").
NB1-143524.V1
1
01/18/93
3. That certain ground Lease dated April, 30, 1968 as subsequentty amended prior to the
date hereof, between Grantor, as Lessor, and BaLboa Investment Group, a CaLifornia generat partnership, as.
Lessee, (the "Ground Lease").
4. ALL covenants, conditions, restrictions, reservations, rights-of-way, easements and
other matters of record or apparent (provided that in any such case it is not the intent of this instrument
to require a separate consent by Grantor concerning modifications or amenciments thereto, except as may be
expressLy required by. the instruments evidencing any such matters).
NBI-143524.Vl 01/1V93
EXHIBIT 6 TO GRANT DEED
The real property conveyed hereby is described as follows:
341 Bayside
Parcel 1
Lot A, in the City of Newport Beach, County of Orange, State of California, as per map recorded in
Book 16, Page 10, Parcel Maps, in the office of the County Recorder of said County.
Par L 2:
A on -exclusive easement for the encroachment of the second story of the buiLding Located on the
above de ribed parcel 1 onto the adjacent property and any replacements or repairs thereof; provided that
any suc placements or repairs shall only be constructed within the air space that the second story of the
buiLdi c rentLy occupies as of the date hereof and provided further that in no event shaLL the easement
r L 2
ve de
A
r
suc
on - e
i bed
y p I ac,
Ld i c ren I
g t
P a
a
rant here be deemed or construed to extend beyond the area currently occupied by the second story of
uc Id.
g
u h iLding.
NB1-143524.VI B-1 01/18/93
EXHIBIT D
FORM OF SPECIAL RESTRICTIONS
N81 -143265.V1 D-1 01/18/93
RECORDING REQUESTED BY AND
WHEN RECORDED 14AIL TO:
The Irvine Company
Post Office Box I
Newport Beach, California 92658-8904
Attention: General CounseL/Irvine Hotel Company
DECUkRATION OF SPECIAL LAND USE RESTRICTIONS
AND MORTGAGE LIEN
(341 Rayside Drive)
THIS INSTRUMENT is entered into as of the day of 1 1993, by and between THE
IRVINE COMPANY, a Michigan corporation ("DecLarant"), and 341 BAYSIDE DRIVE, INC., a California corporation
("Buyer") with reference to the following facts:
A. Concurrently herewith, Buyer is acquiring from DecLarant that certain parcel of Land situated in
the County of Orange, State of California, as more particularly described on EXHIBIT A attached hereto and
by this reference incorporated herein (the "Land").
B. In connection with such acquisition, Buyer has represented to DecLarant that it is acquiring the
Land to own and operate the same in accordance with certain covenants, conditions, rights, restrictions and
limitations more particularly set forth below (collectively referred to as the "Restrictions"), and
Declarant is setting the Land to Buyer on the basis of Buyer's continuing compliance with such Restrictions.
Buyer acknowledges that:
(i) The original purchase price paid by Buyer for the Land reflects the Limitations on use set
forth in the Restrictions;
00 DecLarant has informed Buyer that it is DecLarant's belief that without certain transfer,
use and development restrictions set forth below and hereby agreed to be reasonable, the Land or an interest
in Buyer could be sold by Buyer for an immediate gain prior to fulfilling certain express requirements of
Buyer and contrary to the express intent of the parties hereto; and
(iii) DecLarant has informed Buyer that the price charged to Buyer for the Land would have been
substantially higher had the Land been sold unencumbered by the Restrictions.
C. Buyer acknowledges that DecLarant has informed Buyer that but for such representations by Buyer,
and the covenants of Buyer contained herein, DecLarant would not have sold the Land to Buyer; instead,
Dectarant would have sold the Land to another party willing to conform to these Requirements or would have
retained its fee interest in the Land.
D. The Land is currently subject to that certain ground lease dated April 30, 1968, as amended from
time to time prior to the date hereof, between DecLarant, as Lessor, and Balboa Investment Group, a
California general partnership, as Lessee (the "Ground Lease"). Wherever herein reference is made to Buyer,
such reference shalt refer to and include its successors and assigns, insofar as the Restrictions precLude,
Limit or establish conditions precedent to any proposed use of the Land, including, without Limitation, the
provisions of Section 2.01 below. in the event of any inconsistency between the Ground Lease and this
Agreement,,with respect to such matters, the provisions of this Agreement shalt govern and take precedence
over such provisions in the Ground Lease.
NOW, THEREFORE, in consideration of the foregoing (including the sate of the Land by Dectarant to
Buyer), and other good and vatuable consideration, the receipt and adequacy of which are hereby acknowledged
by Buyer, the parties hereto agree as follows:
ARTICLE I
GENERAL PROVISIONS
1.01. STATEMENT OF GENERAL PURPOSES. DecLarant is the owner of a Large and unique Landholding,
portions of which have been developed as master-pLanned communities. Among the distinguishing
characteristics of these master -planned communities are the clear delineation of use areas, together with
the strict exercise of architectural and occupancy controls over individual construction projects, so as to
ensure the harmonious growth and development of the Local community and the maximization of the value of
Dectarant's remaining Landholdings.
In addition to those general concerns, it is vitaLLy'important to DecLarant that the intensity of
development be Limited on those parcels of property (including the Land) that DecLarant from time to time
elects to sell to third parties. Should the development Limitations imposed by 0ecLarant be exceeded, among
other possible consequences adverse to DecLarant's interests, the roadways and other infrastructure
improvements servicing the Land and its environs could be over utilized, resulting in undesirable traffic
congestion and housing imbalances within the surrounding community. Such conditions could in turn adverseLy
affect the ability of Dectarant to develop its remaining Landownings, including without Limitation the
"Benefited Property" as defined below.
It is to promote these purposes that this Declaration is made, and it is the intention of the
parties that it will be in furtherance of said purposes that the Restrictions, and all other declarations
supplemental hereto, wilt be understood and construed.
'I . u;e.- L. CKIRAN LPCr1N111LMa;
(a) "Affiliate of Buyer" shalt mean an entity owned or controlled by or under common control with
Buyer. For purposes hereof, "control" shalt mean management of the day-to-day operations of such entity
and, in the case of a corporation, ownership of at least fifty-one percent (51%) of all classes of
outstanding voting stock of such corporation, and, in the case of a partnership, ownership as a generaL
partner of at Least fifty-one percent (51%) of the interest in profits and Losses and/or cash flow of such
partnership.
(b) "Dectarant" shalt mean The Irvine Company and all successors, assigns or designees who shalt
assume the obligation and to whom The Irvine Company shalt specifically assign in writing the right to
enforce these Restrictions.
NB1-143264.V1 01/13/93
(c) "Buyer" shalt mean the Buyer identified above and each and every successor, assignee, owner,
Lessee, licensee or other occupant during its ownership or occupancy of the Land or any portion thereof or
interest therein, as the context may require.
(d) "Gross Floor Area" Defined. As used in this Instrument and any exhibits hereto, the term "gross
floor area" shalt mean the square footage area within the exterior facade or line of the exterior watts of
the building, including basement and subterranean areas, balcony and mezzanine space, except that the
following areas shalt not be included:
(i) Areas which are used exctusiveLy to house mechanical, electrical, telephone, heating,
ventilation, air conditioning'and other such building operating equipment, including trash compactors and
baiting equipment;
00 Service corridors, exit corridors or stairs not contained within any area exclusively
appropriated for the use of any single occupant;
(iii) Matt pedestrian circulation not contained within any area exclusively appropriated for
the use of any single occupant, including stairs and vertical transportation; and,
(iv) Truck Loading areas, truck tunnels, truck parking, turnaround and dock areas, and ramps
and approaches to such truck Loading areas.
(e) "Restrictions" shalt mean each covenant, condition, restriction, reservation, timitation or
other provision contained in this instrument.
ARTICLE 11
GENERAL AND SPECIFIC USE RESTRICTIONS
2.01. GENERAL USE RESTRICTIONS. The violation of any of the following general use limitations within
twenty-five (25) years after the recordation of this Instrument shalt at DecLarant's option constitute a
default hereunder and a breach of the Restrictions, which shalt entitle Dectarant to exercise any of the
rights and remedies set forth below:
(a) SUBDIVISION. Buyer shalt not effect any change or amendment to any parcel or final subdivision
map covering the Land or record any further parcel or final subdivision map of the Land or any portion
thereof or facilities thereon, pursuant to California Government Code Sections 66410 et seq., or any similar
or successor statute hereafter enacted, and any Local ordinances adopted pursuant thereto, in any case
relating to a use other than a Permitted Use (as hereinafter defined), nor shalt Buyer file or record a
condominium plan covering the Land for a use other than a Permitted Use, or file any applications with any
goverryr-ritaL agency with respect thereto relating to a use other than a Permitted Use, unless expressly
approved by DecLarant, which approval may be granted or withheld by DecLarant in its sole discretion.
(b) ZONING. Buyer shalt not use or develop, or attempt to use or develop, the Land, or any portion
thereof, for any purpose other than the Permitted Use (without the benefit of a zoning variance, exception
or other special administrative procedure) under the zoning ordinance or ordinances of the governmental
entity having zoning jurisdiction over the Land in effect as of the date of recordation of this Instrument.
Additionally, Buyer shalt not change or attempt any change in zoning, or obtain or apply for a zoning
variance or exception or other similar approval with respect to the use or development of the Land or any
portion thereof for a use other than a Permitted Use, unless expressly approved by DecLarant, which approval
may be withheld by DecLarant in its sole discretion.
(c) UNAPPROVED D LOPMENT OR USE. Unless expressly approved by Dectarant, which approval may be
withheld by Dectarant in its sole discretion, Buyer shalt not permit:
(i) The commencement of construction, maintenance, operation or use of any structure or
improvements on the Land not in full compliance with all requirements of Law or as contained herein or in
any recorded covenants, conditions, rights, restrictions and limitations existing from time to time covering
the Land, including without Limitation all architectural approval requirements and use restrictions
contained in such documents; or
00 More specifically, any use of the Land that is not a permitted use as set forth in
EXHIBIT 8 to this Dectariktion (a "Permitted Use").
(d) FLOOR AREA AND HEIGHT LIMITATION. As previously described, Buyer understands that the development
potential of other Lands owned by Dectarant, including without Limitation the Benefited Property, wit1l
depend in material part upon the intensity of development and use on the Land. Accordingly, Buyer covenants
that without the prior written consent of Dectarant (which consent may be withheld in DecLarant's sole and
absolute discretion or may be given predicated on the payment to Dectarant of such additional sum as is set
forth in Section 3.04 below or as otherwise may be required by DecLarant), in no event shalt the cotLective
Gross Floor Area of,aLL buildings now or hereafter constructed on the Land exceed the maximum Gross Floor
Area set forth in EXHIBIT 8 hereto, nor shalt the above -grade height of any such building exceed the height
Limitation set forth in EXHIBIT B.
ARTICLE III
ENFORCEMENT OF RESTRICTIONS
3.01. GENERAL PURPOSE AND CONSTRUCTIVE NOTICE. The Restrictions shalt run and pass with each and every
portion of the Land and be binding upon Buyer, its successors and assigns, and shalt benefit any and all other
Landowned byDectarant and Located inorangeCounty, California, including without Limitation the real property
more particularly described in EXHIBIT C attached hereto and incorporated herein by reference (the "Benefited
t�standing any tra
nsfers of property
of DecLarant benefited by the Restrictions, or any portion thereof by DecLarant. Except as specifically set
forth herein, the Restrictions shalt remain in full force and effect for the period of time specified in
Section 2.01 above, notwithstanding DecLarant's exercise of any right or remedy herein due to a previous or
repeated violation of any one or more of the previous Restrictions. Every person or entity who now or hereafter
owns or acquires any right, title or interest in or to any portion of the Land is and shalt be conctusiveLy
deemed to have consented and agreed to every Restriction, provision, covenant, condition, right and [imitation
contained herein, whether or not any reference to this Instrument is contained in the instrument by which such
person acquired an interest in the Land.
3.02. INSPECTION. Upon twenty-four (24) hours advance notice and subject to the reasonable security
requirements of Buyer, Dectarant or its authorized representatives may from time to time, at any reasonable
hours, 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 therefore.
NBl-143264.Vl 01/13/93
3.03. DEFAULT AND GENERAL REMEDIES. In the event of any breach, violation or failure to perform or
satisfy any of the Restrictions which has not been cured within the applicable cure period set forth below,
DecLarant at its sole option and discretion may enforce any one or more of the following remedies or any other
rights or remedies to which DecLarant may be entitled by law or equity, whether or not set forth herein. Unless
a cure period is otherwise specifically designated, such cure period shalt commence when written notice is given
to Buyer of a violation hereunder and shall end ten (10) days thereafter in the case of a monetary default and
thirty (30) days thereafter in the case of a non -monetary default; provided, howe�Lerl that if a non -monetary
default is not reasonably susceptible of cure within such 30 -day period, then Buyer shalt have a reasonable time
to cure same so Long as Buyer has commenced such cure promptly within the 30 -day period and thereafter
diligently prosecutes the cure to completion. To the maximum extent allowable by Law, all remedies provided
herein or by Law or equity shalt be cumulative and not exclusive; Provided, however, that in the event DecLarant
elects to exercise the remedy provided for in Section 3.04 hereof, such remedy shall be Dec1,arantls sole and
exclusive remedy for such violation of the Restrictions, although such remedy may be sought in the alternative
with other available remedies in any Legal action.
(a) DAMAGES. Declarant may bring a suit for damages for any compensable breach of or noncompliance with
any of the Restrictions, or declaratory relief to determine the enforceability of any of the Restrictions.
(b) EQUITY. It is recognized that a particular or ongoing violation by Buyer of one or more of the
foregoing Restrictions may cause DecLarant to suffer material injury or damage not compensabLe in money
(including, but not Limited to irreparable effects on the type and quality of development on other property
owned by Dectarant, or portions thereon, and that Declarant shall be entitled to bring an action in equity or
otherwise for specific performance to enforce compliance with the Restrictions or an injunction to enjoin the
continuance of any such breach or violation thereof, whether or not DecLarant exercises any other remedy set
forth herein.
(c) ABATEMENT. Any such breach or violation of these Restrictions or any provision hereof, if not
timely cured as provided above, is hereby declared to be a nuisance, and DecLarant shalt be entitled to enter
the Land and surrmariLy abate and remove, without further Legal process to the maximum extent permitted by Law,
any structure, thing or condition that may exist in violation of any of these Restrictions, or to prosecute any
remedy allowed by Law or equity for the abatement of such nuisance against any person or entity acting or
failing to act in violation of these Restrictions, all at the sole cost and expense of Buyer or any person
having possession under Buyer. Any costs or expenses paid or incurred by OecLarant in abating such nuisance
or prosecuting any such remedy (including all reasonable attorneys' fees and costs of collection) and at[ other
sums owing to Declarant hereunder, together with interest thereon at the maximum rate permitted by Law then in
effect, shalt be a charge against the Land, shalt be a continuing Lien thereon until paid, and shalt also be
the personal obligation of Buyer or other person who was owner of the Land when such charges became due and who
committed such breach or violation.
(d) MTGAGE �LIEN. In addition to any other rights or remedies hereunder, should a default by Buyer not
be timely cured, or upon the terms set forth in Article V hereof, DecLarant may deliver to Buyer and record in
the Official Records of the County of Orange a notice of default and election to sell the Land, and assign the
Ground Lease, together with all improvements thereon (the "Improvements"), subject to any mortgage Lien thereon
(on either the teasehold estate created by the Ground Lease or on the fee estate of Buyer) which shall not be
extinguished by such sate. Thereafter, unless all amounts Legally due and owing to Dectarant have been paid,
and provided that at t of the requirements of Sections 2920 et seq. of the Cat ifornia Civi L Code and of at L other
applicable statutes have been satisfied, DecLarant or su�_htrustee as Dectarant may appoint ("Trustee") may
cause the Land and Improvements thereon to be sold at such time and place as may be fixed in said notice of sate
or at such time and place to which the sate may be postponed as hereinafter provided without additional notice,
either as a whole or in separate parcels, and in such order as Declarant or its Trustee alone may determine,
at public auction to the highest bidder for cash in Lawful money of the United States at the time of sate, or
upon such other terms as DecLarant or its Trustee may consider advisable. In the event of a sate of the Land
and assignment of the Ground Lease, as herein provided, Declarant shalt have the right to require that the buyer
thereof covenant and agree that the fee estate in the Land and the Leasehotd estate created by the Ground Lease
shall not merge as a result of such purchase by said buyer. Buyer shalt have no right to direct or determine
whether the Land shalt be sold as a whole or in separate parcels, or the order of sate of separate parcels or
the portion of the Land to be sold if only a portion is sold. Declarant or its Trustee may postpone the sale
of the Land by public announcement thereof at the time and place of sate and from time to time thereafter by
public announcement at the time and place of the preceding postponement. In conducting or postponing any such
sate, DecLarant may act through its agents, officers or employees or any other person designated by DecLarant,
whether or not such party shalt be a Licensed auctioneer. At such sate, DecLarant or its Trustee shalt cause
to be delivered to the buyer or buyers, one or more duty exercised deed or deeds conveying the property so sold,
subject to all the provisions of this Instrument, but without any covenant or warranty, either express or
implied. The recitals in such deed or deeds with regard to any matters of fact shalt be conclusive proof of the
truthfulness thereof against the buyer at such sate, its successors and assigns, and at( other persons. Any
person or entity, including, without Limitation, DecLarant, may bid in or purchase at such sate. No such sate
shalt release or extinguish any rights, remedies or provisions contained in this Instrument in the event of any
further violation of any Restriction set forth herein. The proceeds of such sate shalt be applied as follows:
first, to the expenses of sate incurred by Declarant, including reasonable attorneys, fees; next, to the sums
secured hereby; and finally, to the person or persons Legally entitled thereto. As an alternative to the
foregoing, Deciarant may elect to foreclose the lien secured hereby by judicial action, in which event Buyer
shall be Liable for the expenses incurred by DecLarant in connection therewith, including reasonable attorneys'
fees. To the maximum extent permitted by Law, Buyer hereby waives any applicable statue of Limitations,
provided that the Lien created herein shalt expire sixty (60) years following the date of recordation of this
Instrument. Notwithstanding the foregoing, if Buyer's default is timely cured in accordance with this
instrument or applicable Law, DecLarant shalt, upon request by Buyer, record at Buyer's expense an appropriate
notice of rescission in accordince with the applicable provisions of the Civil Code of California.
. t
3.04. ADDITIONAL PURCHASE PRICE.
(a) PArp;Z�T ZW ZZ:TIONAL ; ; -- ---- --- ;—. ,� ' Dectarant, DecLarant
may elect for any violation of the Restrictions itemized in Section 2.01 not cured within the time set forth
above, as its exclusive remedy and in Lieu of any remedies permitted by Section 3.03, to obligate Buyer to pay
to DecLarant thirty (30) days after written demand, an additional purchase price for the Land computed as
described below, together with interest thereon at the maximum rate then permitted by Law accruing from and
after the occurrence of any such event until the date of actual payment. Buyer's obligation to pay such
additional purchase price shalt be secured by the lien of this instrument described in Section 3.03(d) above,
and shalt be subject to the power of sate provisions therein. No failure by DecLarant to exercise its rights
to require one or more of such payments, and no prior exercise of such as to a previous violation, shalt
constitute a waiver of Dectarant's rights to require such payment at any Later time or times white this
Instrument is stilt in effect, and so Long as any such violation may continue.
(b) DETERMINATION OF ADDITIONAL PURCHASE PRICE. The additional purchase price resulting from a
violation of the Restrictions identified in this Section 3.04 shall be determined by callcutating the difference
NBI-143264.Vl 3 01/13/93
between (i) the then current fair market value of the Land based on the use being made of the Land by Buyer and
predicated on the assumption that said violation of the Restrictions is authorized and permitted herein and (ii)
the then current fair market value of the Land based on the use of the Land by Buyer consistent with the
Restrictions and assuming said violation is not authorized and permitted herein, but in no event shaiL the
additional purchase price be a negative number. "Current" fair market value shalt refer to the value determined
as the date of notice from DecLarant to Buyer of a violation of the Restrictions. If the parties cannot agree
upon the additional purchase price within twenty (20) days after written notice by Dectarant to Buyer of
violation of the Restrictions, then such fair market values shalt be determined by an independent appraiser
appointed by DecLarant (and reasonably acceptable to Buyer), who shalt be a member of the American institute
of Rest Estate Appraisers and whose decision in this matter shalt be final, conclusive and binding. At[ fees
for such appraiser shalt be borne equally by Dectarant and Buyer. If Dectarant and Buyer are unable to agree
on a single appraiser within twenty (20) days after demand by either party, then each party shalt select its
own duty qualified M.A.I. appraiser within ten (10) days thereafter and the two such 'appraisers shall mutually
select a third appraiser within ten (10) days after the second of such appraisers is chosen. The average of
the two appraisals closest in amount shalt be final conclusive and binding as to the amount of the additional
purchase price. In such event, each of the parties shalt bear the fees and charges of its own appraiser, and
those of the third appraiser shalt be borne equally by Dectarant and Buyer. The additional purchase price shalt
be due on the date of notification to Buyer by DecLarant or such later date as the additional price is
determined as herein provided.
3.05. DECLARANTIS RIGHT OF FIRST OFFER. If, at any time within sixty (60) years after the recordation
of this Instrument, Buyer shalt determine to sell all or any part of the Land or any interest therein
("Interest") to a person or entity other than an Affiliate of Buyer, then Buyer shalt notify Dectarant of the
priceand the terms onwhich Buyer will be willing toseLL. If Dectarant, within thirty (30) days after receipt
of Buyer's notice, indicates in writing its agreement to purchase said Interest for the price and on the terms
stated in Buyer's notice, Buyer shalt sell 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 thirty (30) day period, Buyer
thereafter shalt have the right to sell and convey the Interest to a third party, but only for a price not Less
than the price offered to DecLarant and on terms not more favorable than those stated in the notice. If Buyer
does not so sell and convey the Interest within one hundred eighty (180) days, any further transactions or any
changes more favorable to DecLarant in the price or terms previously submitted to DecLarant shalt be deemed a
new determination by Buyer to sell and convey said Interest, and the provisions of this Section shalt again be
applicable.
ARTICLE TV
APPROVAL OF 114PROVEMENTS AND PERFORMANCE OF WMK
4.01. PLAN REVIEW. No improvement on the Land of any nature costing in excess of Twenty Thousand DoLtars
(S20,000), including but not Limited to any alteration or addition to any Improvements existing from time to
time, but exclusive of any interic.- or tenant improvement not visible from the exterior of any building on the
Land, shalt be installed, developed, constructed, placed or assembled and maintained on the Land at any time
during the twenty-five (25) years after the recordation of this Instrument until the various submittals (herein,
the "Submittals") required by this Section shalt have been approved in writing by DecLarant. Separate and
progressive Submittals regarding Improvements shalt be made by Buyer for approval as follows:
(a) Two (2) sets of schematic plans and preliminary specifications shalt be submitted to DecLarart,
including at Least grading plans and site plans showing in reasonable detait the proposed type of use, size,
Land coverage and the shape, height, location, material, color scheme and elevation of each proposed
Improvement.
W Two (2) sets of final working drawings and specifications, based on approved basic design concepts
and schematic plans and preliminary specifications, including at Least color and material palette and signage,
shalt be submitted before commencement of any Improvements.
4.02. GENERAL REQUIREMENTS. Partial Submittals may be made and approved, but in no event shatL
construction or assembly of any Improvement proceed beyond the scope of the approval received. ALL plans and
specifications to be submitted toDecLarant hereunder shalt be prepared by an architect and/or engineer Licensed
to practice in the State of California, and shalt be submitted in writing over the signature of Buyer or an
agent duty authorized by Buyer in writing.
4.03. APPROVALS. Provided that Submittals are in conformity with these Restrictions and are accompanied
by a written notice to Vectarant containing the sentence next following this sentence, Dectarant shalt not
unreasonably withhold its approval of any such Submittal. Notwithstanding anything to the contrary contained
in this Article IV, Declarant shalt be conclusively deemed to have given its approval thereof unless, within
ten (10) business days after any such Submittal has been received, DecLarant shalt give express written notice
specifying in reasonable detait each item which DecLarant disapproves and the reasons for the disapproval.
Unless so disapproved, Declarant shalt endorse its approval on one set of submitted documents and return the
same to the person from whom the documents were received, provided that two (2) sets had been submitted as
required above.
4.04. BASIS OF APPROVAL. without ti-miting the generality of the foregoing, DecLarant in its sole
discretion may approve or disapprove any Submittals which are not in harmony or conformity with other existing
or proposed Improvements on or in the vicinity of the Land, or with any restrictions contained in this
Declaration, or with any applicable governmental regulations, or with DecLarant's master utility, circuL'ation
or general aesthetic or architectural plans and criteria for the Land, including but not Limited to such matters
as adequacy of site and Improvement dimensions or external structural appearance, retation of topography, grade
and elevations of the Land being improved with neighboring sites and nearby streets, and the effect of Location
and use of Improvements on neighboring sites, improvements or operations.
4.05. CERTIFICATES OF COMPLIANCE. Prior to commencement of any such work of Improvement, Buyer shat1l,
upon DecLarant's written request tneretoee, suppty ueckdFaIlL witn a Ctfl'Llyicatjon oy a uuty ticensea civil,
engineer or Land surveyor verifying that the proposed Improvements will be Located on the correct parcel of Land
and in accordance with the Submittals previously approved by DecLarant. upon completion of any such
Improvements, Buyer shalt, upon Dectarant's written request therefore, supply DecLarant with a certification
by a duty Licensed or registered architect (including the Landscape architect in the case of Improvements
consisting of Landscaping) that the Improvements as designed by such architect have been completed in accordance
with the final working drawings and specifications previously approved by Declarant pursuant to Sections 4.01
through 4.03 above.
4.06. PRESLWTION OF COMPLIANCE. Notwithstanding anythingto the contrary herein contained, after the
expiration of the earlier to occur of (i) one (1) year from either (a) the date of issuance of a certificate
of occupancy by the applicable municipal or other governmental authority for any Improvement, if applicable,
or (b) the date of recording a valid Notice of Completion with respect to such Improvement, or (ii) one-bAe4oed
tvemofi-(4� calendar days after Buyer has served DecLarant as provided in Section 6.09 below with copies of
C? T
NBI-143264.Vl 4 01/13/93
either the foregoing certificate of occupancy or Notice of Completion, then any such Improvement shaLt, in favor
of any purchasers and encumbrancers in good faith and for value ' be deemed to be in compliance with all
provisions of this Article IV, unless prior to the passage of the Lesser of such periods of time either (A)
actual notice of such noncompliance or noncompLetion, executed by DecLarant, shalt have been deLivered to Buyer
and, if recordable, shalt appear of record in the office of the County Recorder of orange county, California,
or (8) Legal proceedings shalt have been instituted to enforce compliance or completion.
4.07. EXPIRATION OF APPROVALS. Except as may be specifically required in any other document recorded by
DecLarant, Buyer shalt have a peri�d of one (1) year from the date of Dectarant's approval of any Improvement
to the Land pursuant to Section 4.03 above within which to commence such work of Improvement in accordance with
the approved documents. If Buyer fails to commence the work covered by any approved Submittal within such time
period, any previous approvals given by Dectarant for such Improvement or Submittals shalt be invalid, and Buyer
shalt make entirety new Submittals to DecLarant pursuant to Section 4.01 above prior to commencing such work
of Improvement. In addition, Dectarant's approval of any individual Submittal shalt expire one (1) year from
the date such approval is given by Declarant unless commencement of construction of the Improvements covered
by such Submittal has commenced or Buyer has submitted subsequent Submittals based upon or incorporating the
earlier approved Submittal. The time periods in this Section shalt be extended by the period of delays outside
Buyer's control, provided that the Buyer shalt have the burden of proving such delays.
4.08. IDENTICAL REPLACEWNTS. Notwithstanding the foregoing, any Improvement on the Land existing as of
the recordation hereof or for which Submittals were previously approved by Declarant as provided above may be
repaired, replaced, or reconstructed without further consent by DecLarant, but only if the repair, replacement,
or reconstruction is substantially identical to such prior Improvement.
4.09. EXCULPATION. Declarant shalt not be Liable in damages to anyone making Submittals as provided
herein, or to any Buyer, Licensee or other person subject to or affected by Restrictions, on these account of
(i) Dectarant's approval or disapproval of any Submittal, whether or not defective, (ii) any construction,
performance or nonperformance by a Buyer of any work on the Land or Improvements, whether or not pursuant to
approved Submittals, (iii) any mistake in judgment, negligence, action or omission in exercising Declarant's
rights, powers and responsibi L i ties hereunder, and Ov) the enforcement or failure to enforce these
Restrictions. Every person who makes Submittals to Dectarant for approval agrees by reason of such Submittal,
and every Buyer of the Land, Improvements or any portion thereof agrees by acquiring title thereto or an
interest therein, not to bring any suit or action against DecLarant seeking to recover any such damiages.
DecLarant's approval of any Submittal shalt not constitute the assumption of any responsibility by, or impose
any Liability upon, DecLarant or its representatives as to the accuracy, efficacy or sufficiency thereof.
Nothing contained in this Section shalt, in any way, be deemed to release DecLarant from liability for fraud,
intentional acts, or any breach of Dectarant's obligations under this Instrument.
4.10. ARCHITECTURAL REVIEW FEE. An architectural review fee of Seven Hundred Fifty Dollars ($750.00)
shalt be paid to DecLarant at or before the time preliminary plans and specifications, prepared by a duty
Licensed architect and/or engineer, are submitted for approval, which fee shalt cover DecLarant's review cost
of ail Submittals.
4.11. LANDSCAPING. Buyer shalt be responsible for regular maintenance for all planted and undeveloped
areas and all parking areas upon the Land and shalt keep the same free and clear of weeds, debris and rubbish,
in a neat and clean condition. In particular, all unpaved areas shalt be fully and adequately Landscaped by
Buyer, and Buyer shalt provide hose bibs, automatic sprinklers and other reasonable and adequate landscape
maintenance facilities in the vicinity of ail Landscaped areas.
4.12. DRAINAGE. No water shalt be drained or discharged from the Land or Improvements thereon --and no
Buyer shalt interfere with the drainage established as of the date of these Restrictions (which drainage is
acceptable to and approved by DecLarant)--in or over the remainder of the Land or any other property adjacent
to the Land, except in accordance with plans therefor approved by aLL public agencies having jurisdiction;
provided, that no water shalt be drained or discharged at any time onto or diverted from any adjacent lands
owned by Dectarant.
4.13. SIGNS. ALL signs shalt be subject to the prior written approval of Dectarant in its sole discretion
and shalt conform to all governmental requirements then in effect. Notwithstanding anything to the contrary
contained herein, the signage existing as of the date of these Restrictions has been approved by Dectarant.
4.14. MAINTENANCE AND REPAIRS. The Land and at[ Improvements thereon shalt at ail times be kept and
maintained in first-class, condition, repair and appearance similar to that maintained by Dectarant and other
owners of high-class properties of similar class and construction in Orange County, ordinary wear and tear
excepted. ALL repairs, alterations, replacements or additions to Improvements shalt be at Least equal to the
original work in class and quality. Buyer shalt keep the Land and aLL Improvements adequately insured against
Loss or damage by fire and other risks and shalt carry adequate public liability insurance. In the event of
any such damage or casualty, Buyer shalt promptly restore in a good and workmanlike manner any portions of the
Land or Improvements that have been so damaged or destroyed, subject to Buyer's ability to obtain all required
goverrtwntat approvals therefor; provided, that Buyer shalt use its best ditigent efforts to obtain all such
approvals.. Buyer shalt also be responsible at ail times for determining that all improvements and the plans
and specifications therefor shalt conform and comply in all respects with these Restrictions, all other
restrictions of record, all appticabLegovernmentat regulations, and all exterior architectural design, Location
and color specifications contained therein.
(a) Dectarant agrees that, to the extent that the Improvements are damaged or destroyed and reconstruction
is economically unfeasible, Buyer shalt have the right to raze and demolish such Improvements and, within a
reasonable time, commence construction of new Improvements on the Land; provided, however, that:
0) The new Improvements must comply with ail requirements of this instrument regarding use and
size; and
Cii) ALL plans and specifications for such Improvements must be approved by Declarant as provided
herein and comply with ail then applicable codes and regulations.
4.15. CONFLICTS. In the event of any inconsistency between the provisions of this Article and those of
any covenants conditions and restrictions encumbering the Land and recorded prior to the date hereof, then the
latter shalt control.
ARTICLE V
PLARIMA PROVISIONS
5.01. DECLARANTIS WATERWAY. The provisions of this Article V shalt remain in full force and effect for
sixty (60) years after the recordation of this Instrument. Buyer hereby acknowledges and agrees that, as a
material inducement to Declarant to enter into the transaction contemplated by this Agreement, the property
ffB1-143264,V1 5 01/13/93
being sold to Buyer pursuant to this Agreement does not, and shalt not at any time in the future, include any
Littoral rights with respect to the waterway adjacent to the Land and the marina currently located thereon owned
by Declarant or any future improvements Located thereon or any enhancements, repairs or replacements thereof
(collectively, the "Waterway"), all of which are expressly reserved by Declarant. BLryer further acknowledges
that the rights retained by DecLarant pursuant to this Article V enhance the value of Land owned or Leased by
Dectarant and/or the other interests which Dectarant may have in such Land and that Declarant would not have
entered into this Agreement if the property being sold to Buyer included any littorat rights with respect to
the Waterway and that the Purchase Price for the Land has been established by Dectarant based upon Dectarant's
continued right to own, occupy, use, operate, Lease or otherwise alienate the Waterway. The provisions of this
Article V shall not affect any rights which Buyer may have, if any, to use the Waterway as a member of the
general public and not arising out of Buyer's ownership of the Land.
Buyer hereby expressly and fully relinquishes and releases unto Dectarant any and all Littoral rights that it
may now or hereafter have or claim with respect to the Waterway, including without Limitation any such right,
title or interest claimed, asserted or resulting from the fact that the Land abuts the Waterway. Buyer further
fully and unconditionally wal . Yes any and aLL rights it may now or hereafter have or assert to enjoy, invoke
or use the Waterway or any Littoral rights relating thereto and acknowledges and agrees that by entering into
this Agreement Buyer is estopped from asserting or exercising any rights to enjoy, invoke or use the Waterway
or any Littoral rights relating thereto at any time now or hereafter. Buyer acknowLedges and agrees that
Dectarant, or its successors and assigns, shalt be entitled to own, occupy, use, operate, Lease or otherwise
alienate the Waterway in the manner that DecLarant, or such successors and assigns, elect in their sole
discretion. Buyer hereby covenants and agrees that it shall not at any time in the future assert any right,
title or interest with respect to the Waterway or challenge, object to, or interfere with, DecLarant's
ownership, occupancy, use, operation, Lease or alienation thereof. In the event Buyer, or any of its successors
or assigns, at any time in the future asserts any right, title or interest with respect to the Waterway or
challenges, objects to, or interferes with DecLarant's or any successors' or assigns' ownership, occupancy, use,
operation, Lease or alienation thereof, Dectarant shalt be entitled to exercise any and all of its rights and
remedies under the Special Restrictions, including, without Limitation, the right to receive payment of an
additional purchase price from Buyer, or such successors or assigns, as provided in Section 5.02.
Notwithstanding anything to the contrary set forth herein, Buyer and DecLarant acknowledge that, in the highly
unLikety event that a court or other governmental authority at some future date decides that the Littoral rights
have been transferred to or are appurtenant to the property conveyed to Buyer despite the express agreement of
Buyer and Declarant to the contrary, Buyer and DecLarant have entered into a Lease of the Waterway, which tease
shall remain in full force and effect in the event of any such determination adverse to DecLarant's ownership,
occupancy, use, operation, tease or alienation of the Waterway. Notwithstanding the foregoing, Buyer
acknowledges that such tease is being entered into solely as a means of fulfilling the express intent of the
parties that DecLarant shalt retain all Littoral rights relating to the Land and the Lease, and its execution
thereof by DecLarant, shall not be deemed or construed to confer upon Buyer, or its successors and assigns, any
Littoral, rights relating to the Land.
5.02. ADDITIONAL PURCHASE PRICE. In the sole option and discretion of Declarant, Dectarant may elect for
any violation of the Restrictions itemized in Section 5.01, as its exclusive remedy and in Lieu of any remedies
permitted by this Instrument, to obligate Buyer to pay to Dectarant, as coq*nsation for DecLarant's right,
title and interest in and to the Waterway, within thirty (30) days after written demand, an additional purchase
price for the Land computed as described below, together with interest thereon at the maximum rate then
permitted by Law accruing from and after the occurrence of any such event until the date of actual payment.
Buyer's obligation to pay such additional purchase price shalt be secured by the Lien of this instrument
described in Section 3.03(d) above, and shalt be subject to the power of sale provisions therein. No failure
by Dectarant to exercise its rights to require one or more of such payments, and no prior exercise of such as
to a previous violation, shalt constitute a waiver of Declarant's rights to require such payment at any Later
time or times white this Instrument is still in effect, and so Long as any such violation may continue.
5.03. DETERMINATION OF ADDITIONAL PURCHASE PRICE. The additional purchase price resulting from a
violation of this Instrument identified in Section 5.01 shalt be the greater of (a) the difference between the
then current fair market value of the Land and the waterway based on the use of the Land and the Waterway by
Buyer and predicated on the assumption that the use and ownership of the waterway by Buyer is authorized and
permitted herein, and the then current fair market value of the Land (without the Waterway) based on the use
of the Land by Buyer and the use and ownership of the Waterway by Seller as permitted herein, or (b) the then
current fair market value of the Waterway. In the event the parties are unable to agree, "current" fair market
value shalt be determined by the appraisal process provided in Section 3.04(b) hereof. The additional purchase
price shall be due on the,date of notification to Buyer by DecLarant or such Later date as the additional price
is determined as herein provided. At such time as the additional purchase price is paid by Buyer, DecLarant
shalt transfer, to Buyer at Buyer's expense, fee ownership of aLL Littoral rights, rights to use the Waterway
and the improvements Located thereon, and such other related rights to Buyer, and such permits and Licenses as
may be necessary for fee ownership of the foregoing; provided that all of the foregoing shalt be Leased to
DecLarant by Buyer pursuant to the Lease between the parties of even date herewith.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01. WAIVER. No waiver by DecLarant of a breach of any of the Restrictions by Buyer and no delay or
failure to enforce any of the Restrictions shalt be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other of the Restrictions. No waiver of any breach or default of Buyer
hereunder shall be implied from any omission by Declarant to take any action on account of such breach or
default if such breach or default persists is repeated, and no express waiver shall affect a breach or default
other than as specified in said waiver. The consent or approval by Deciarant to or of any act by Buyer
requiring DecLarant's consent or approval shall not be deemed to waive or render unnecessary Dec(arant's consent
or approval to or of any subsequent similar acts by Buyer.
6.02. ADVANCES BY DECLAPANT. Upon ten (10) days w. ; ",— t�, :-, -.-'z -- -- -Z':Z
appropriate action to protect and preserve DecLarant's security for its rights and interests under this
Agreement within such ten (10) day period, DecLarant shall be entitled to advance any sums DecLarant deems
necessary, in its sole discretion, to protect and preserve the security for its rights and interest under this
Instrument (including, but not Limited to, sums for completion of construction of any Improvements on the Land,
any property taxes or assessments, insurance premiums, or amounts secured or represented by encumbrances or
Liens or other charges on any portion of the Land which appear to be prior to DecLarant's rights and interest
under this Instrument), all of which advances (together with interest at the maximum rate then permitted by Law)
shalt be secured by the Lien of this instrument described in Section 3.03(d) above, and shalt be subject to the
power of sale provisions in this instrument if Buyer fails to reimburse DecLarant for such advances within ten
(10) days after demand from DecLarant.
6.03. COSTS OF ENFORCEMENT. In the event any Legal or equitable action or proceeding shall be instituted
between DecLarant and Buyer to enforce any provision of this Instrument, the party prevailing in such action
NB1-143264.V1 01/13/93
shall be entitled to recover from the losing party all of its costs, incLuding court costs and reasonabLe
attorneys' fees, charges and reimbursements.
6.04. RIGHTS OF LENDERS. No breach or violation of the Restrictions shaLt defeat or render invatid the
Lien of any mortgage, deed of trust or similar instrument securing a [can made in good faith and for vaLue by
an institutional Lender with respect to the acquisition or permanent financing of the Land or any portion
thereof, or with respect to the construction of Improvements thereon. However, this instrument and alt
provisions hereof shalt 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 sate, deed in Lieu of forecLosure or
otherwise, but such subsequent owner shalt have a reasonabte period of time after taking titLe to cure any
continuing violation hereunder that is reasonably capable of being cured provided that such subsequent owner
continuously and diligently acts to effect such cure.
6.05. ASSIGNMENT BY DECLARANT. Any and aLt of the rights, powers, duties and reservations of DecLarant
herein contained may be assigned to any person or entity which wilt assume the duties of DecLarant pertaining
to the particular rights, powers and reservations assigned, and upon any such person or entity evidencing its
consent in writing to accept such assignment and assume such duties, such assignee shalt, 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.
6.06. TERP41KATION OR AMENDMENT. The Restrictions may be validly terminated, amended, modified or
extended, in whole or in part, only by recordation in the Official Records of the County of Orange of a proper
instrument duty executed and acknowledged by DecLarant and Buyer to that effect.
6.07. CAPTIONS. The captions used herein are for convenience only and are not a part of this instrument
and do not in any way Limit or amplify the scope or intent of the terms and provisions hereof.
6.08. INVALIDITY OF PROVISION. If any provision of this Instrument as applied to DecLarant or Buyer or
to any circumstance shalt be adjudged by a court of competent jurisdiction to be void, invalid, iLLegaL or
unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by taw) any
other provision of this Instrument, the application of any such provision under circumstances different from
those adjudicated by the court, or the validity or enforceability of the Instrument as a whole, and any
provision so adjudged to be void, invalid, iLLegaL or unenforceable for any reason shall be replaced, if
possible, with a valid provision that is enforceable and most nearly carried out the original intent of the
parties hereto.
6.09. NOTICES. ALL notices, consents, requests demands and other communications provided for herein shaLL
be in writing and shall be deemed to have been duty given if and when personally served or forty-eight (48)
hours after being sent by United States registered mail, return receipt requested, postage prepaid, to the other
party at the following respective addresses:
DECLARANT:
THE IRVINE COMPANY
P.O. Box I
Newport Beach, California 92658-8904
Attention: Mr. Stephen Brahs
COPY TO:
IRVINE HOTEL COMPANY
P.O. Box I
Newport Beach, California 92658-8904
Attention: General Counsel
BUYER:
c/o MARVIN 0. BLIRTON, AS TQUS"r
121 East Hopkins
Aspen, Colorado 81611
c/o PATRICK C. STACKER 5 -
One WorLd Trade Center, Suite 1800
Long Beach, California 90831
c/o ROGER GEYER
8251 Westminster Avenue
Westminster, California 92683
COPY TO:
DOUGLAS P. ALLEN, ESQ.
600 East Hopkins, Suite 302
Aspen, Colorado 81611
or at such other address as the Deciarant of the Buyer may designate to the other in writing.
6.10. APPLICATION 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, the Restrictions shatL
automatically cease and terminate and be of no further force or effect as to DecLarant and such property,
effective as of the date of such reacquisition by Declarant.
6.11. T114E OF THE ESSENCE. Time is of the essence of each provision of this Instrument in which time is
an element.
6.12. OTHER RESTRICTIONS. This Instrument may not be the exclusive source of restrictions on the use of
the Land, and nothing herein contained shalt prejudice or diminish in any :zz':,-=nt's -7'
documents of record from time to time affecting all or any portion of the Land.
6.13. NON -MERGER OF FEE AND LEASEHOLD ESTATE. Buyer acknowledges that no merger of the fee estate in the
Land and the Leasehotd estate of the Lessee under the Ground Lease shall occur so tong as any sum is owed either
(i) to Deciarant under that certain Purchase Agreement and Escrow Instructions pursuant to which Buyer acquired
Land from Declarant or 00 any third party mortgagee providing purchase money financing for such acquisition.
So tong as any surn is owed as aforesaid, Buyer shall keep in force the Ground Lease and shalt not modify, amend,
terminate, surrender or otherwise atter the Ground Lease in any manner, and any such purported modification,
amendment, termination, surrender or other alteration of the Ground Lease shall not be binding upon or effective
as to DecLarant or such mortgagee.
NB1-143264.V1 01/13/93
IN WITNESS WHEREOF, the undersigned has executed this Instrument as of the date first above written.
DECLARANT:
THE IRVINE COMPANY,
A Michigan Corporation
By:
DonaLd McNutt
Vice President
By:
Stephen A. Brahs
Assistant Secretary
ACCEPTED AND AGREED TO:
BUYER:
341 BAYSIDE DRIVE, INC.,
a California corporation
By:
Its:
By:
I ts:
NB1-143264.V1 01/13/93
STATE OF CALIFORNIA
COUNTY OF ORANGE
on personalty appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which
persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On personalty appeared
personalty known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which
persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
on , personalty appeared I
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which
persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF.ORANGE
on , personally appeared I
personalty known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which
persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
NB1-143264.V1 01/13/93
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
341 Bayside
Pace[ 1:
Lot A, in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book
16, Page 10, Parcel Maps, in the office of the County Recorder'of said County.
Parcel 2:
A non-excLusive easement for the encroachment of the second story of the building Located on the above
described parceL 1 onto the adjacent property and any repLacements or repairs thereof; provided that any such
replacements or repairs shall only be constructed within the air space that the second story of the bui(ding
currently occupies as of the date hereof and provided further that in no event shaLL the easement granted hereby
be deemed or construed to extend beyond the area currently occupied by the second story of such building.
NB1-143264.V1 A-1 01/13/93
EXHIBIT 9
SPECIFIC RESTRICTIONS
Permitted Use: Office, retail, restaurant and other commercial uses which are approved by all applicabLe
governmental agencies and authorities; provided than in no event shall "Permitted Use" include any type of
residential use whatsoever.
Maximum Gross Floor Area: 12,600 square feet
i
Height Limitation: 35 feet
NB1-143264.V1 B-1 01/13/93
LEGAL DESCRIPTION OF NBENEFITED PROPERTYN
1. 500 AND 550 NEWPORT CENTER DRIVE
Parcel A:
Beginning at the easterly terminus of that certain course in the northerly right of way Line of San Nicolas
Drive shown as south 80 degrees, 14 minutes, 38 seconds east 91.45 feet on Map of Tract 6015 fited in Book 239,
pages 28 through 41 of Miscellaneous Maps, in the Office of said County Recorder; thence along the right of way
Lines of said San Nicolas Drive, Newport Center Drive East and Santa Rosa Drive as shown on said Map. The
following courses and distances, north 80 degrees, 14 minutes, 38 seconds west 91.45 feet to the beginning of
a curve concave northeasterly having a radius of 25.00 feet, northwesterly 38.16 feet along said curve through
an angle of 87 degrees, 26 minutes, 49 seconds to the beginning of a reverse curve concave westerly having a
radius of 1670.00 feet; northerly 472.13 feet along said curve through an angle of 16 degrees, 11 minutes, 54
seconds to the beginning of a reverse curve concave southeasterly having a radius of 25.00 feet; northeasterty
38.16 feet along said curve through an angle of 87 degrees, 26 minutes, 49 seconds, north 78 degrees, 27
minutes, 06 seconds east 69.97 feet to the beginning of a curve concave northwesterly having a radius of 825.50
feet, northeasterly 195.27 feet along said curve through an angle of 13 degrees, 33 minutes, 11 seconds to a
point of a non -tangent curve concave southwesterly having a radius of 25.00 feet, a radial to said point bears
north 35 degrees, 38 minutes, 46 seconds east; thence southeasterly 4.81 feet along said curve through an angte
of 11 degrees, 01 minutes, 42 seconds to the beginning of a reverse curve concave northeasterly having a radius
of 161.00 feet; thence southeasterly 91.20 feet along said curve through an angle of 32 degrees, 27 minutes,
16 seconds to the beginning of a reverse curve concave southwesterly having a radius of 25.00 feet; thence
southerly 32.67 feet along said curve through an angle of 74 degrees, 53 minutes, 02 seconds; thence south 0
degrees, 53 minutes, 46 seconds east 25.50 feet to the beginning of a curve concave northwesterly having a
radius of 2.00 feet; thence southwesterly 3.14 feet along said curve through an angle of 90 degrees, 00 minutes,
00 seconds to the beginning of a reverse curve concave southeasterly having a radius of 2.00 feet; thence
southwesterly 3.14 feet along said curve through an angle of 90'degrees, 00 minutes, 00 seconds; thence south
0 degrees, 53 minutes, 46 seconds east 179.75 feet to the beginning of a curve concave northwesterly haying a
radius to 10.00 feet; thence southwesterly 6.59 feet along said curve through an angle of 37 degrees, 45
minutes, 40 seconds; thence south 36 degrees, 51 minutes, 54 seconds west 9.49 feet to the beginning of a curve
concave southeasterly having a radius of 10.00 feet; thence southerly 6.59 feet along said curve through an
angle of 37 degrees, 45 minutes, 40 seconds; thence south 0 degrees, 53 minutes, 46 seconds east 31.50 feet to
"Point All hereinafter referred to; thence continuing south 0 degrees, 53 minutes, 46 seconds east 31.50 to the
begirning of a curve concave northeasterly having a radius of 10.00 feet; thence southeasterly 6.59 feet along
said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 38 degrees, 39 minutes, 26
seconds east 9.49 feet to the beginning of a curve concave southwesterly having a radius of 10.00 feet; thence
southerly 6.59 feet along said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 0
degrees, 53 minutes, 46 seconds east 212.75 feet to the beginning of a curve concave northwesterly having a
radius of 25.00 feet; thence southwesterly 24.40 feet along said curve through an angle of 55 degrees, 55
minutes, 53 seconds to the beginning of a reverse concave southeasterly having a radius of 147.00 feet; thence
southwesterly 66.40 feet along said curve through an angle of 25 degrees, 52 minutes, 43 seconds to the
beginning of a reverse curve concave northwesterly haying a radius of 25.00 feet; thence southwesterly 9.78 feet
along said curve through an angle of 22 degrees, 24 minutes, 25 seconds to a point on a non -tangent curve
concave southerly having a radius of 950.50 feet and the northerly right of way Line of said San Nicolas Drive,
a radial to said point bears north 22 degrees, 12 minutes, 47 seconds east; thence westerly 206.65 feet along
said curve through an angle of 12 degrees, 27 minutes, 25 seconds to the point of beginning.
11. 610 NEWPORT CENTER DRIVE
Parcel A:
That portion of Lot 22 of Tract No. 6015; in the City of Newport Beach, County of orange, State of California,
as shown on a Map recorded in Book 239,.pages 28 through 41, inclusive, of Miscellaneous Maps, in the office
of the County Recorder of said County; tying southeasterly of the boundary of a Map filed in Book 25, page 14
of Parcel Maps, Records of said County.
111. 690 NEWPORT CENTER DRIVE
Parcel 8:
Parcels 2 and 3 of PareL Map No. 83-715, in the City of Newport Beach, County of Orange, State of California,
as shown on a Map f I I ad I n Book 196, pages 13 through 16, 1 nc L us I ve, of Parcel Maps, I n the Of f I ce of the County
Recorder of said County.
IV. FASHION ISLAND
Parcel A:
Parcels 1 through 9, inclusive, in the City of Newport
on Parcel Map No. 86-399 as per map filed In Book 221,
Office of the County Recorder of said County.
Parcel 9:
Beach, County of orange, State of California, as shown
pages 30 through 36, inclusive, of Parcel Maps, in the
Lots 13 through 17, inclusive, Lots 0, R, S, U, R-1, R-2, and R-3 of Tract No. 6015, in the City of Newport
Beach, County of orange, State of California, as per Map recorded in Book 239, pages 28 through 41, inclusive,
of MfseLLaneous Maps, in the Office of the County Recorder of said County.
Parcel C:
Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a Parcel Map filed
in Book 67, pages 2 and 3 of Parcel Maps, in the Office of the County Recorder of said County.
Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a Parcel Map filed
in Book 75, page 48 of Parcel Maps, in the Office of the County Recorder of said County.
Parcel E:
Parcel 4 of Parcel Maps, as shown on a Map filed in Book 67, pages 2 and 3 of Parcel Maps and Lot W of Tract
No. 6015, as per Map recorded in Book 239, pages 28 through 41, inclusive, of MiseLlaneous Maps, all in the City
of Newport Beach, County of Orange, State of California, in the Office of the County Recorder of said County,
lying within the Land described as Parcels 1 and 2 of that certain Lot Line Adjustment N.B.L.L.A. 87-3, recorded
November 13, 1987, as Instrument No. 87-640346, Official Records of said County.
FI.EXC Exhibit C to Declaration 11/11/91
EXHIBIT E
FORM OF NOTE
N81 -143265.V1 E-1 01/18/93
PURCHASE MONEY PROMISSORY NOTE
(341 Bayside Drive)
$375,000.00
MAKER'S PROMISE TO PAY
1 1993
Newport Beach, California
FOR VALUE RECEIVED, 341 RAYSIDE DRIVE, INC., a California corporation ("Maker") jointly and
severally promise to pay to the order of THE IRVINE COMPANY, a Michigan corporation ("Payee"), at the address
set forth in Section 3 hereof, the principal sum of Three Hundred Seventy -Five Thousand Dollars ($375,000),
together with accrued interest on ihe unpaid principal balance at the applicable rate as set forth in Section 2
hereof. Maker acknowledges and agrees that Payee may assign or otherwise transfer this Note at any time. Payee
or anyone who takes this Note by any such transfer and who is entitled to receive payments under this Note is
sometimes hereinafter referred to as the "Note Notcler."
2. INTEREST
The unpaid principal balance hereof shall bear interest from the date the Deed of Trust (as
defined in Section 12 hereof) is recorded in the Official Records of orange County, California (the "Initial
Daten) and shall continue until the full amount of principal hereof has been paid.
Commencing on the initial Date and continuing until the five (5) year anniversary of the first
(Ist) day of the calendar month following the Initial Date or, if the Initial Date is the first (1st) day of
a calendar month, the five (5) year anniversary of the Initial Date (the RKaturity Daten), interest on the
unpaid principal balance hereof shall be calculated at a per annum rate equal to the per annum interest rate
announced by WeLLs Fargo Bank, N.A. on the Initial Date, or on such other subsequent date as hereinafter
provided, as its "prime rate" to commercial customers, plus one percent 0%) (the "Interest Rate"); provided,
however, that on the first (1st) day of the calendar month following the Initial Date and on the first (1st)
day of each calendar month thereafter until the full amount of principal hereof has been paid, the Interest Rate
shall be recalculated in the same manner set forth above (with the use of the "prime rate" announced by Wells
Fargo Bank, N.A. on the first (1st) day of such calendar month or, if such day is not a business day, then on
the next succeeding business day provided that any adjustment to the Interest Rate shall be effective as of the
Ost) day of such month) and any adjustment made to the then existing interest Rate shall be effective as of
such date and shall continue until any subsequent adjustment is made to the Interest Rate as provided herein.
If, at any time, Wells Fargo Bank, N.A. shall not publicly announce its "prime rate," then the "prime rate',
shall be the highest reference, base or prime rate in effect as announced by the Largest bank (in terms of
capital and surplus) having its principal offices in Los Angeles, California. Interest shall be calculated on
the basis of a 360 -day year. Notwithstanding the foregoing, upon the occurrence of an Event of Default as
described in Section 6(a) below, and for so Long as such default continues, the sum(s) of principal and accrued
interest then due and payable hereunder, whether by acceleration or otherwise, shall bear interest at the rate
of the then -current Interest Rate plus four percent (4%) per annum (the "Default Rate").
3. PAYMENT
NOTICE TO MAJCER: THE PAYMENT OF PRINCIPAL AND INTEREST AND ANY OTHER SUMS THEM DUE HEREUNDER IS A
BALLOON PAYMENT. MAXER HAS NO RIGHT WHATSOEVER TO EXTEND OR RENEW THIS NOTE WHEN THE BALLOON PAYMENT BECOMES
DUE ON THE MATURITY DATE. NOTE HOLDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME.
Maker shall prepay through escrow the amount of interest which will accrue on this Note at the
Interest Rate from the Initial Date up to the first (1st) day of the calendar month immediately following the
Initial Date; provided that if such Initial Date shall be the first Ost) day of a calendar month, then no
prepayment of interest by Maker shall be required. Maker shall make monthly payments of interest only under
this Note in the amount of ' Dollars (S ) [based upon 30 year amortization] beginning on
the first Ost) day of the second (2nd) calendar month following the Initial Date (the "First Payment Date")
and on the first (1st) day of each and every calendar month thereafter until the Maturity Date. On the Maturity
Date, the entire unpaid principat balance hereof, together with accrued but unpaid interest thereon and any
other sums then due hereunder, shall immediately become due and payable in full. If all sums of principal and
accrued unpaid interest and other amounts due under this Note are not paid on the Maturity Date, then all. of
such sums shall bear interest from the Maturity Date until paid in full at the Default Rate as adjusted from
time to time.
Any payments received by Note Holder pursuant to the terms hereof shall be applied first to
the payment of any sums, other than principal and interest, due Note Holder pursuant to the terms hereof, next
to the payment of all interest accrued to the date of such payment, and then to the payment of principal. ALL
payments hereunder are payable in Lawful money of the United. States of America to The Irvine Company, 550
Newport Center Drive, Newport Beach, California 92660, Attention: Irvine Investment Company, or at such other
place as the Note Holder hereof may designate from time to time.
4. NAJCERIS RIGHT TO PREPAY
Maker shall have the right to prepay all or part of the unpaid principal balance hereof, together
with accrued but unpaid interest thereon, at any time without penalty.
5. INTEREST RATE LIMITATION
Note Holder and Maker hereby stipulate and agree that the transaction contemplated hereby is not
SuL. =1 t,: t�z usur". � --:- -A .1.. -9 — I , 1-h- immediately preceding sentence, if
it is determined that the transaction contemplated hereby is subject to the usury laws of the State of
California, Note Holder and Maker stipulate and agree that none of the terms and provisions contained herein
or in any document or instrument executed in connection herewith shall ever be construed to create a contract
for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum
interest rate permitted to be charged by the Laws of the State of California. If any Note Holder shall coLLect
monies which are deemed to constitute interest which would otherwise increase the effective interest rate on
this Note to a rate in excess of the maximum rate permitted to be charged by the Laws of the State of
California, all such sums deemed to constitute interest in excess of such maximum rate shall, at the option of
Note Holder, be credited to the payment of the sums due hereunder or returned to Maker.
NBI-143263.Vl 1 01/18/93
6. DEFAULT
The occurrence of any of the fot Lowing shatL be deemed to be an "Event of Default" under this Note:
(a) the failure of Maker to pay interest and any other sums within fifteen (15) days after
written notice from Payee that such amounts are delinquent or the failure of Maker to pay principal when
due pursuant to the terms hereof;
(b) the fai Lure of Maker to fully comply with any other covenant or obligation under this Note;
(c) the failure of Maker to fully comply with any covenant or obligation under the Deed of
Trust or any other security instrument now or hereafter securing this Note (collectively, the "Security
Documents"); or
(d) a default by Maker under any other document evidencing the creation of a Lien or other
encumbrance against the Property (as defined in the Deed of Trust), or any portion thereof, including,
without Limitation, the Declaration (as defined in the Deed of Trust); provided, however, that nothing in
this subparagraph shall be deemed a consent by Note Holder to the creat'ion of any such lien or encumbrance.
7. RBIEDIES
Upon the occurrence of an Event of Default hereunder, Note Holder may, in its sole and absolute
discretion and without demand or notice to Maker, (a) declare the entire unpaid balance hereof, together with
accrued but unpaid interest thereon and any other sums then due hereunder, immediately due and payable, (b) take
all actions and pursue all remedies permitted under the Security Documents, and (c) exercise any and all rights
and powers and pursue any and aLL remedies now or hereafter available under applicable Law. No delay or
omission on the part of Note Holder in exercising any right or remedy under this Note, the Deed of Trust or any
other Security Document shall operate as a waiver of such right or remedy.
8. LATE CHARGE
If any payment due hereunder is not received by the Note Holder within ten (10) calendar days after
the date quch payment is due, Maker shaLL pay to Note Holder, without demand, a late charge in an amount equal
to four ercent (4%) of the amount past due. it would be impracticable or extremely difficult to fix the Note
Holder's actuaL damages if payment is not paid when due hereunder, and said Late charge shall be deemed to be
the Note Holder's damage for any such Late payment, but shaLL not Limit the Note Holder's right to compel, prompt
performance of any obligation or to exercise any other remedy under this Note, the Deed of Trust or any other
Security Document. No Late charge assessed shalL exceed the maximum permitted by Law.
9. NOTICES
Any notice, request, demand, instruction or other communication to be given to any party hereunder
shall be in writing and shall be deemed to have been duly given three (3) business days after deposit in the
United States mail or, if personally delivered or sent by registered or certified mail, return receipt
requested, when delivered, as follows:
If to maker: c/o MARVIN 0. BURTON, kg-TRUSTEr
121 East Hopkins
Aspen, Colorado 81611
c/o PATRICK C. STACKER
One World Trade Center,
Suite 1800
Long Beach, California 90831
c/o ROGER GEYER
8251 Westminster Avenue
Westminster, California 92683
copy to:
Douglas Allen, Esq.
600 East Hopkins, Suite 302
Aspen, Colorado 81611
If to Payee: THE IRVINE COMPANY
c/o Irvine Investment Company
P.O. Box I
Newport Beach, California 92658-8904
Attn: Mr. Brian McDonald
The addresses and addresses for the purpose of this paragraph may be changed by giving written notice of such
change in the manner herein provided for giving notice. However, unless and until such written notice of change
is actually received, the Last address and addresses as stated by written notice, or provided herein if no
written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder.
10. WAIVERS
Maker herebywaives diligence, presentment, protest ancidemand, notice of protest, demand, dishonor
and nonpayment of this Note, and notice of intention to accelerate the maturity of this Note and expressly
agrees that, without in any way aTTecting Toit: LiacitiLy ui ndKt:i may extend any maturity
date or the time for payment of any installment due hereunder, accept additional security, release any party
Liable hereunder and release any security now or hereafter securing this Note. Maker further waives, to the
full extent permitted by law, the right to plead any and all statutes of Limitations as a defense to any demand
on this Note, or on any deed of trust, security agreement, Lease assignment, guaranty or other agreement now
or hereafter securing this Note. Maker hereby waives all rights of setoff and counterclaim with respect to this
Note, including rights of setoff and counterclaim with respect to this Note which may arise from claims
heretofore unknown to Maker.
11. ATTORNEYS' FEES
If the Note Holder seeks Legal advice following a default by Maker hereunder or refers this Note
to collection or to reclaim, protect, preserve or enforce its interest in this Note, in the Deed of Trust or
NB1-143263.V1
01/18/93
in any other Security Document, then Maker shaL I pay at L reasonable attorneys' fees and expenses and other costs
relating thereto.
12. THIS NOTE SECURED BY A DEED OF TRUST
This Note is secured by a Deed of Trust and Assignment of Rents of even date herewith executed by
Maker, as trustor, to Chicago Title Insurance Company, as trustee, and naming Payee, as beneficiary (the "Deed
of Trust"), which Deed of Trust shall be recorded in the Official Records of Orange County, California.
13. ACCELERATION BY REASON OF TRANSFER
The Deed of Trust contains the foL towing t imitations on the right of Maker to transfer the Property
or any beneficial interest in Maker:
"Trustor shalt not transfer the Property or any portion thereof or interest therein without the
prior written consent of Beneficiary, which consent shall not be unreasonably withheld. Without Limiting the
generality of the foregoing, Trustor acknowledges and agrees that it shalt not be unreasonable for Beneficiary
to withhold its consent to any transfer of the Property or an interest therein or a portion thereof to a person
or entity whose net worth is Less than One Million Dollars ($1,000,000) as of the date of such proposed
transfer. If consent should be given, any such transfer shall be subject to this Deed of Trust, and any
transferee shalt assume aLL of Trustor's obligations hereunder and agree to be bound by aLL provisions and
perform all obligations contained herein. In the event of any such transfer without the written consent of
Beneficiary, Beneficiary may, at its option, without demand or notice, declare aLL sums secured hereby
immediately due and payable. Consent to one such transfer shall not be deemed to be a waiver of the right to
require consent to future or successive transfers. As used herein, the term "transfer" shalt mean: (a) the sale,
agreement to sell, grant of any option to purchase, conveyance or other transfer of the Property, or any portion
thereof or interest therein, whether voluntarily, involuntarily, by operation of Law or otherwise, or the Lease
of the Property, or any portion thereof, but shalt not include (i) the conveyance of easements reasonably
necessary for the development of the Property, 00 the Leasing of space in any improvements now or hereafter
Located on the Property in the ordinary course of Trustor's business, or (iii) the assignment of the Lessee's
interest under that certain ground lease dated April 30, 1968, as amended from time to time prior to the date
hereof, between Beneficiary, as Lessor, and Balboa Investment Group, a California general partnership as Lessee
(the "Ground LeaseJl) to a third party provided that such assignment does not require the prior consent or
approval of the Lessor thereunder; (b) any transfer by way of security, including the placing or permitting the
placing on the Property of any mortgage, deed of trust, assignment of rents or other security device, but shalt
not include any encumbrance now or hereafter existing solely against the Lessee's leasehoLd estate under the
Ground Lease; or (c) the transfer of a "controlling interest" in Trustor or a transfer of a "controtting
interest" in any general partner of Trustor which is a joint venture or general or Limited partnership, whether
voluntarily, involuntarily, by operation of Law or otherwise. For purposes hereof, the term 11controLLing
interest" shalt mean any transl�r or other disposition of any interest in such entity whereby the effective
control of the management of such entity is altered, Limited or otherwise modified in any manner."
14. SEVERABILITY
Every provision of this Note is intended to be severable. In the event any term or provision
hereof is declared by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such
illegality or invaLidity shalt not affect the balance of the terms and provisions hereof, which terms and
provisions shall remain binding and enforceable, and any provision so adjudged to be void, invalid, illegal or
unenforceable for any reason shall be replaced, if possible, with a valid provision that is enforceable and most
nearly carries out the original intent of the parties hereto.
15. NLMER AND GENDER
In this Note the singular shalt include the plural and the masculine shalt include the feminine
and neuter gender, and vice versa, if the context so requires.
16. TIME IS OF THE ESSENCE
Time is strictly of the essence under this Note and any amendment, modification or revision hereof.
17. CHOICE OF LAU
This Note shall be governed by and construed in accordance with the Laws of the State of
California. In the event of a dispute hereunder, it is agreed that the sole and exclusive venue shall be in
a court of competent jurisdiction in Orange County, California, and the parties hereto agree to submit to the
jurisdiction of such court.
18. JOINT AND SEVERAL LIABILITY
If this Note should be signed by more than one party, the liability under this Note of each party
shall be joint and several. In addition, if Ma ' ker is a partnership, the liability under this Note of each
general partner of Maker, and the Liability of each general partner of a partnership which is itself a general
partner of Maker, shall be joint and several.
NBI-143263.Vl
wMakerO
341 BAYSIDE DRIVE, INC.,
a California corporation
By:
Its:
By:
Its:
3
01/18/93
EXHIBIT F
FORM OF PURCHASE MONEY DEED OF TRUST
N81 -143265.V1 F-1 01/18/93
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
THE IRVINE COMPANY
c/o Irvine Investment Company
550 Newport Center Drive, Fifth Floor
Post Office Box I
Newport Beach, California 92658-8904
Attention: Mr. Brian McDonald
(Space above for Recorder's Use Only)
PURCHASE MONEY
DEED OF TRUST AND ASSIGNMENT OF RENTS
(341 Bayside Drive)
This PURCHASE MONEY DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is made this day of
1993, between 341 RAYSIDE DRIVE, INC., a California corporation ("Trustor"), whose a ress
is 333 Bayside Drive, Newport Beach, California 92660, CHICAGO TITLE INSURANCE COMPANY, a Missouri
corporation, whose address is 825 North Broadway, Santa Ana, California 92701 ("Trustee4l), and THE IRVINE
COMPANY, a Michigan corporation, whose address is 550 Newport Center Drive, Fifth Floor, Post Office Box 1,
Newport Beach, California 92658-8904, Attn: Irvine Investment Company - Mr. Brian McDonald ("Beneficiary').
WITNESSETH: That Trustor irrevocably grants, assigns and transfers to Trustee in Trust, with Power of Sate:
GRANTING CLAUSE FIRST
The real property in the County of Orange, State of California, described as:
As per Exhibit A attached hereto and made a part hereof by reference.
Together with (a) all the rights, rights of way, easements, privileges, hereditaments and appurtenances now
or hereafter in any way appertaining or belonging thereto, (b) any additional real property acquired by
Trustor which is merged into or becomes a part of a Legal parcel containing all or any part of such real
property (by reason of a Lot Line adjustment, re -subdivision of said real property and other property, or
otherwise), (c) all buildings and improvements of every kind and nature now or hereafter placed or erected
upon said real property, and (d) the rents, issues and profits thereof, subject to the right, power and
authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and
profits.
GRANTING CLAUSE SECOND
ALL that certain personal property used in the operation of the real property described in GRANTING
CLAUSE FIRST, whether now owned or hereafter acquired, including but not Limited to aLL furniture, fixtures
and equipment, including maintenance equipment and other decorations, and atL renewals, replacements or
substitutions thereof or additions thereto, and aLL materials and equipment acquired for use in or to be
incorporated in the improvements constructed or to be constructed on said real property, and all renewals
and replacements therefor, and ail warranties in which Trustor may now or hereafter have an interest
relating to work, Labor, skill or materials furnished in connection with the construction of any
improvements on said real property and all plans and specifications which have been or will be prepared by
or for Trustor related to improvements on said real property or to the adjacent Lands of Beneficiary,
whether constructed or not.
ALL of said real and personal property granted, assigned arid transferred by Trustor to Trustee
together with ail other property hereafter granted, assigned and transferred to Trustee under this Deed of
Trust is herein called the "Property."
For the purpose of securing (1) all of the obligations of Trustor under that certain Purchase Money
Promissory Note of even date herewith, in the original principal amount of Three Hundred Seventy -Five
Thousand Dollars ($375,000), executed by Trustor, as maker, in favor of Beneficiary, as payee, and any and
all modifications, extensions, renewals and replacements thereof (the "Note"), together with interest
thereon, according to the terms of the Note (which, by reference is hereby made a part hereof), and the
performance of each and every obligation, covenant and agreement of Trustor contained in the Note; (2) the
performance of each agreement of Trustor incorporated by reference or contained herein; (3) payment of any
sums and interest thereon which may hereafter be Loaned to Trustor, or the then owner of the Property, when
evidenced by a Promissory note or notes reciting that they are secured by this Deed of Trust; (4) payment of
all sums, with interest thereon at the rate of interest provided herein, which may be expended by
Beneficiary or Trustee in protecting the security of this Deed of Trust; and (5) performance of any
obligation of Trustor to Beneficiary which may hereafter be evidenced by an agreement or other writing
reciting that such obligation is secured by this Deed of Trust. Notwithstanding the foregoing, this Deed of
Trust shall not secure the performance of any obligations of Trustor under that certain Declaration of
Special Land Use Restrictions, Mortgage Lien and Option to Repurchase of even date herewith by and between
Trustor, as Buyer, and Beneficiary, as Dectarant, relating to the Property, or any portion thereof (and any
amendments or modifications thereto) (the "DeclaratiorYI).
A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep the Property in good condition and repair; not to remove or demolish any
building thereon; to complete or restore promptly and in good and workmanlike manner any building which may
be constructed, damaged or destroyed thereon and to pay when due atL claims for Labor performed and
materials furnished therefor; to comply with all Laws affecting the Property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any
act upon the Property in violation of Law; to maintain, cultivate, irrigate, fertilize, fumigate, prune and
do all other acts which from the character or use of the Property may be reasonably necessary, the specific
enumerations herein not excluding the general.
NB1-143262.V1 01/13/93
(2) (a) To maintain or cause to be maintained, with a reputable company or companies and
otherwise in form and substance acceptable to Beneficiary, (i) comprehensive general liability insurance, or
a per occurrence basis, with respect to the Property and the operations of or on behalf of Trustor on or
about the Property, including but not Limited to owned and nonowned automobile (vehicle) liabitity, persona�
injury (including coverage for Groups of Offenses A, 8 and C with exclusion (c) deleted), blanket
contractual, broad form property damage and product/compLeted operations liabiLity coverage for not �ess
than one million dollars ($1,000,000.00) combined single Limit bodily injury, death and property damage
Liability peroccurrence, or the current limit of Liability carried, whichever is greater; 00 property
insurance against toss or damage to any improvements mw or hereafter located on the Property by fire and
any of the risks covered by insurance of the type known as "all risks of physical toss coverage', in an
amount not Less than the full replacement cost of such improvements (exclusive of the cost of excavations,
foundations and footings below the Lowest basement floor) and with a deductible from the Loss payab�e for
any casualty in an amount which is acceptable to Beneficiary; and (iii) workers compensation insurance in an
wxx-nt required by Law, together with employers Liability.
(b) Trustor shall provide that the policy or policies of comprehensive generaL
Liability insurance required above shalt be primary and shalt name Beneficiary as additional insured, as
indicated below, and shalt apply severally to Beneficiary and Trustor, with the provisions that any other
insurance carried by Beneficiary shall be noncontributing. Such policy or policies shall contain a
provision that the naming of an additional insured wouLd not negate any right the additionat insured wouLd
have had as claimant under the policy if not so named. For purposes of naming Beneficiary as additional,
insured, the following provision shall be included within each applicable policy: "It is understood and
agreed that coverage afforded by this Policy shall also apply to The Irvine Company, a Michigan corporation,
and its officers, directors, agents, employees, divisions, subsidiaries, partners and affiliated companies
as additional insureds, but only with respect to Legal liability or claims caused by, arising out of or
resulting from the acts or commissions of the named insured or of others performing acts on behalf of the
named insured or the ownership or development of the Property."
(c) To provide, maintain and deliver to Beneficiary such additional insurance
as may be required from time to time by Beneficiary. During the period of time that any construction is to
take place on the Property, Trustor shalt maintain or cause to be maintained course -of -construction
insurance.
(d) ALL policies of insurance required by the terms of this Deed of Trust shall
be with companies approved by Beneficiary, shall contain the starKiard noncontributory mortgagee clause and
the standard Lenders, loss payable clause, or their equivalents, in favor of Beneficiary, and shalt provide
that the proceeds thereof shalt be payable to Beneficiary to the extent of its interest therein. In
addition, all policies of insurance required by the terms of this Deed of Trust shall contain an endorsement
or agreement by the insurer that any Loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor which might otherwise -esult in forfeiture of said
insurance and the further agreement of the insurer waiving aLL rights of set-off, counterclaim or deductions
against Trustor. In the event of the foreclosure of this Deed of Trust or other transfer of title to the
Property in extinguishment, in whole or in part, of the indebtedness secured hereby, all right, title and
interest of Trustor in and to any insurance policy then in force shalt pass to the purchaser or grantee.
Beneficiary shalt be furnished with a certificate of each policy required to be provided by Trustor
hereunder, which certificate shalt provide that the policy may not be modified or cancelled without
thirty (30) days written notice to Beneficiary. Upon request, Trustor shalt furnish Beneficiary with
receipts for the payment of premiums on such insurance policies or other evidence of such payment reasonabLy
satisfactory to Beneficiary. in the event Trustor does not deposit with Beneficiary a new certificate of
insurance with evidence of payment of premium thereon at least thirty (30) days prior to the expiration of
any expiri,ng policy, then Beneficiary may, but shall not be obligated to, procure such insurance and Trustor
shalt pay the premiums thereon promptly upon demand. Beneficiary shalt not by the fact of approving,
disapproving, accepting, preventing, obtaining or failing to obtain any such insurance, incur any liability
for the form or Legal sufficiency of insurance contracts, solvency of insurers or payment of losses and
Trustor hereby expressly assumes full responsibility therefor and all Liability, if any, thereunder. The
amount collected under any casualty insurance policy may, subject to the provisions of the Ground Lease (as
hereinafter defir*d), be applied by Beneficiary upon any indebtedness secured hereby and in such order as
Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part
thereof may be released to Trustor. Such application or release shalt not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or Trustee.
(4) To pay: prior to delinquency all taxes and assessments affecting the Property,
including assessments on appurtenant water stock, if any; when due, all other encumbrances, charges and
Liens, with interest, on the Property or any part thereof, which appear to be prior or superior hereto; and
all allowable expenses of this Trust.
(5) To pay when due all utility charges which are incurred by Trustor for the benefit of
the Property or which may become a charge or Lien against the Property for gas, electricity, water and sewer
services furnished to the Property and all other assessments or charges of a similar nature, whether public
or private, affecting the Property or any portion thereof, whether or not such taxes, assessments or charges
are Liens thereon.
(6) Trustor shall not transfer the Property or any portion thereof or interest therein
without the prior written consent of Beneficiary, which consent shalt not be unreasonably withheld. Without
Limiting the generality of the foregoing, Trustor acknowledges and agrees that it shalt not be unreasonable
for Beneficiary to withhold its consent to any transfer of the Property or an interest therein or a portion
thereof to a person or entity whose net worth is Less than One Million Dollars ($1,000,000) as of the date
of such proposed transfer. Beneficiary may grant or deny such consent. li, 1�b suLe _�, ;:
consent should be given, any such transfer shall be subject to this Deed of Trust, and any transferee shalt
assume sit of Trustorls obligations hereunder and agree to be bound by all provisions and perform all
obligations contained herein. In the event of any such transfer without the written consent of Beneficiary,
Beneficiary may, at its option, without demand or notice, declare all sums secured hereby immediately due
and payable. Consent to one such transfer shalt not be deemed to be a waiver of the right to require consent
to future or successive transfers. As used herein, the term "transfer" shall mean: (a) the sale, agreement
to sell, grant of any option to purchase, conveyance or other transfer of the Property, or any portion
thereof or interest therein, whether voluntarily, involuntarily, by operation of Law or otherwise, or the
Lease of the Property, or any portion thereof, but shall not include (i) the conveyance of easements
reasonably necessary for the development of the Property; (ii) the Leasing of space in any improvements now
or hereafter Located on the Property in the ordinary course of Trustor's business, or (iii) the assignment
of the Lessee's interest under that certain ground Lease dated April 30, 1968, as amended from time to time
prior to the date hereof, between Beneficiary, as Lessor, and Balboa Investment Group, a California general
NB1-143262.V1 01/13/93
partnership as lessee (the "Ground Lewel) to a third party provided that such assignment does not require
the prior consent or approval of the Lessor thereunder; (b) any transfer by way of security, incLuding the
placing or permitting the placing on the Property of any mortgage, deed of trust, assignment of rents or
other security device, but shalt not include any encumbrance now or hereafter existing solely against the
Lessee's Leasehoid estate under the Ground Lease; or (c) the transfer of a "controLting interest" in Trustor
or a transfer of a "controlling interest" in any general partner of Trustor which is a joint venture or
general or Limited partnership, whether voluntarily, involuntarily, by operation of taw or otherwise. For
purposes hereof, the term "controlling interest" shalt mean any transfer or other disposition of any
interest in such entity whereby the effective control of the management of such entity is altered, limited
or otherwise modified in any manner.
(7) Should Trustor fail to make any payment or to do any act as provided in this Deed of
Trust, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon
Trustor and without releasing Trustor from any obligation hereof, may: make or do the same in such manner
and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being
authorized to enter upon the Property for such purposes; appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase,
contest or compromise any encumbrance, charge or Lien which in the judgment of either appears to be prior or
superior hereto; and, in exercising any such powers, pay allowable expenses. Trustor agrees to pay
immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from date of
expenditure at the maximum amount then allowed by Law.
(8) Not to engage in any Hazardous Substance Activity (as hereinafter defined) or allow
any other person or entity to do so in violation of any Environmental Law (as hereinafter defined).
(9) To keep and maintain, and to cause all other persons or entities to keep and
maintain, the Property in compliance with, and not to cause or permit the Property to be in violation of,
any Environmental Law.
(10) To immediately advise Beneficiary in writing of (a) any and all Hazardous Substance
Claims (as hereinafter defined) against Trustor or the Property; (b) any remedial action taken by Trustor in
response to any (i) Hazardous Substance in, on, under or about the Property or (ii) Hazardous Substance
Claims; and (c) Trustor's discovery of any occurrence or condition on any real property adjoining or in the
vicinity of the Property that could cause the Property or any part thereof to be classified as "border -zone
property" under the provisions of California Health and Safety Code Sections 25220 et seq., or any
regulation adopted in accordance therewith, or to be otherwise subject to any restr-T-c-tions on the ownership,
occupancy, transferability or use of the Property under any Environmental Law. Trustor will provide
Beneficiary with copies of all communications with federal, state and Local governments or agencies relating
to Hazardous Substance Claims.
(11) In the event any investigation, site monitoring, containment, cleanup, removal,
restoration or other remedial work of any kind or nature (the "Remedial Work") is required under any
Environmental Law, any judicial order or by any governmental entity because of, or in connection with, the
current or future presence, suspected presence, threatened or existing release or suspected release of a
Hazardous Substance in or into the air, soil, groundwater, surface water or soit vapor at, on, under or
about the Property or any portion thereof, Trustor shall, within such period of time as may be required
under applicable Law, regulation or order, commence to perform, or cause to be commenced, and thereafter
diligently prosecuted to completion, all such Remedial Work; provided, however, that Trustor shall not
perform, or commence to perform, any Remedial Work without Beneficiary's prior written consent, which
consent may be granted or withheld in Beneficiary's reasonable discretion; provided further, however, that
Beneficiary's prior consent shall not be r*cessary in the event that the presence of Hazardous Substances
in, on, under or about the Property either poses an immediate threat to the health, safety or welfare of any
individual or is of such a nature that immediate Remedial Work is necessary and it is not possible to obtain
Beneficiary's consent before performing or commencing such Remedial Work, provided that in such event
Trustor shall notify Beneficiary as soon as practicable of any Remedial Work so performed or commenced.
Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if particular
Remedial Work is ordered by a court of competent jurisdiction or is imposed upon Trustor (without Trustor's
consent or approval) by a governmental authority with'reguLatory jurisdiction over the Property. All costs
and expenses of such Remedial Work shalt be paid by Trustor within ten (10) days of Beneficiary's demand
therefor, which costs and expenses shalt include, but shall not be Limited to, the charges of all
contractor(s) and/or consulting engineers, and Beneficiary's attorneys' fees and costs incurred in
cornection with monitoring or review of such Remedial Work. In the event Trustor shall fait to timely
commence, or cause to be commenced, or fait to diligently prosecute to completion, such Remedial work,
Beneficiary may, but shalt not be required to, cause such Remedial Work to be performed and all costs and
expenses thereof, or incurred in comection therewith, shalt become part of the indebtedness secured hereby.
(12) Beneficiary is authorized, by itself, its agents, employees or workmen to enter at
any reasonable time upon any part of the Property for the purpose of inspecting the same for Hazardous
Substances and Trustor's compliance with Paragraphs A(8) through (11), inclusive, above, and such
inspections may include soil borings and groundwater testing (provided that any damage caused by soil
borings shall be repaired by Beneficiary). Trustor agrees to pay to Beneficiary, within ten (10) days of
Beneficiary's demand therefor, all expenses, costs or other amounts incurred by Beneficiary in performing
any inspection for the purposes set forth in this Paragraph A(12).
(13) Without the prior written consent of Beneficiary, which consent may be granted or
withheld in Beneficiary's sole discretion, Trustor shalt not create or permit to continue in existence any
Lien (whether or not such Lien has priority over the Lien created by this Deed of Trust) upon the Property
imposed pursuant to any Environmental Law.
(14) Beneficiary shalt have the right to join and participate in, as a party if it so
elects, any Legal proceedings or actions initiated in connection with any Hazardous :,Uustance CLair[r..
Trustor agrees to pay to Beneficiary, within ten (10) days of Beneficiary's demand therefor, all expenses,
costs and other amounts incurred by Beneficiary in connection with exercising its rights under this
Paragraph A(14).
(15) Trustor agrees to protect, indemnify, defend, save and hold harmless Beneficiary,
its directors, officers, agents and employees from and against any foreseeable or unforeseeable claim,
action, suit, proceeding, toss, cost, damage (including, without Limitation, any consequential damage),
Liability, deficiency, fine, penalty, punitive damage or expense (including, without Limitation, attorneys'
fees), directly or indirectly, resulting from, arising out of, or based upon (a) the presence, release, use,
generation, discharge, storage or disposal of any Hazardous Substance in, on, under or about, or the
transportation of any Hazardous Substance to or from, the Property by Trustor, its partners, directors,
officers, agents, employees, contractors, tenants, invitees, successors or assigns or any residual
contamination affecting any natural resource or the environment or (b) the violation, or alleged violation,
KB1-143262.V1 01/13/93
of any statute, ordinance, order, rule, regulation, permit, judgment or License relating to the use,
generation, release, discharge, storage, disposal or transportation of any Hazardous Substance in, on, under
or about, to or from the Property by Trustor, its partners, directors, officers, agents, employees,
contractors, tenants, invitees, successors or assigns. This indemnity shalt include, without Limitation,
any damage, liability, fine, penalty, punitive damage, cost or expense arising from or out of any claim,
action, suit or proceeding for personal injury (including sickness, disease or death), tangible or
intangible property damage, compensation for lost wages, business income, profits or other economic toss,
damage to the natural resources or the environment, nuisance, pollution, contamination, Leak, spitt, release
or other adverse affect upon the environment. The indemnity obligation on the part of Trustor under this
Paragraph A(15) shall survive the repayment of the indebtedness secured hereby.
meanings: (16) As used in this Deed of Trust, the following terms shall have the following
"Environmental Laws" means any and all present and future federal, state or Local Laws
(whether under common law, statute, rule, regulation or otherwise), permits ard any other requirements of
governmental authorities relating to the environment or to any Hazardous Substance or Hazardous Substance
Activity (including, without Limitation, the Comprehensive Environmental Response, Compensation and
�iability Act of 1980 (42 U.S.C. §§9601 et seq.), as heretofore or hereafter amended from time to time, and
the applicable provisions of the California Health and Safety Code and the California Water Code).
"Hazardous Substance" means (a) any chemical, compound, material, mixture or substance that
is now or hereafter defined or Listed in, or otherwise classified pursuant to, any Environmental Law as a
"hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious
waste," "toxic substance," "toxic pollutant" or any other formulation intended to define, List, or classify
substances by reason of deleterious properties such as ignitabitity, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or IIEP toxicity" and (b) petroleum, natural gas, natural
gas liquids, Liquified natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas), ash produced by a resource recovery facility utilizing a municipal solid waste stream, and
drilling fluids, produced waters, and other wastes associated with the exploration, development or
production of crude oil, natural gas, or geothermal resources.
"Hazardous Substance Activity" means any actual, proposed or threatened storage, holding,
existence, release, emission, discharge, generation, processing, abatement, removal, disposition, handling
or transportation of any Hazardous Substance from, under, into or on the Property or surrounding property.
"Hazardous Substance Claims" shalt mean any and ail enforcement, cLean-up, removal or other
governmental or regulatory actions or orders threatened, instituted or completed pursuant to any
Environmental Law, together with aLL claims made or threatened by any third party against Trustor,
Beneficiary or the Property relating to damage, contribution, cost recovery compensation, Loss o- injury
resulting from any Hazardous Substance.
It is mutually agreed:
(1) That any award of damages in connection with any condemnation for public use of or
injury to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply
or release such moneys received by it in the same manner and with the same effect as above provided for
disposition of proceeds of casualty insurance.
(2) That by accepting payment of any sum secured hereby after its due date, Beneficiary
does not waive its right either to require prompt payment when due of aLL other sums so secured or to
declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor and without
notice, upon written request of Beneficiary and presentation of this Deed of Trust for endorsement, and
without affecting the personal Liability of any person for payment of the indebtedness secured hereby,
Trustee shall: reconvey any part of the Property; consent to the making of any map or plat thereof; join in
granting any easement thereon; or join in any extension agreement or any agreement subordinating the Lien or
charge hereof.
(4) That upon written request of Beneficiary stating that ail sums secured hereby have
been paid, and upon surrender of this Deed of Trust to Trustee for cancellation and retention or other
disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shalt
reconvey, without warranty, the Property then held hereunder. The recitals in such reconveyance of any
matters or facts shalt be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may
be described as "the person or persons Legally entitled thereto."
(5) That as additional security, Trustor hereby gives to and confers upon Beneficiary
the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and
profits of the Property, reserving unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents,
issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard
to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of the
Property or any part thereof, in its own name sue for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, Less allowable expenses of operation, upon any
indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking
possession of the Property, the collection of such rents, issues and profits and the application thereof as
aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done
pursuant to such notice.
(6) That if by virtue of being the beneficiary under this Deed of Trust, Beneficiary is
made a party defendant to any Litigation concerning this Deed of Trust or the Property or any part thereof
or interest therein, or the occupancy thereof by Trustor, then Trustor shall indemnify, defend and hold
Beneficiary harmless from all liability by reason of said litigation, including reasonable attorneys' fees
and expenses incurred by Beneficiary in any such Litigation, whether or not such Litigation is prosecuted to
judgment. If Beneficiary commences an action against Trustor to enforce any of the terms hereof or because
of the breach by Trustor of any of the terms hereof, or for the recovery of any sum secured hereby, or
participates in any bankruptcy or other similar action regarding Trustor, Trustor shall pay to Beneficiary
reasonable attorneys' fees and expenses, and the right to such attorneys' fees and expenses shall be deemed
to have accrued on the commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment. If Trustor breaches any term of this Deed of Trust, Benefici,ary make take whatever
action it deems appropriate, including without Limitation employing an attorney or attorneys, to protect
the security of its rights hereunder and in the event of such action following any breach by Trustor,
NBI-143262.Vl 4 01/13/93
Trustor shalt pay Beneficiary reasonable expenses incurred by Beneficiary in so doing, whether or not an
action is actually commenced against Trustor by reason of breach.
(7) That any of the following events, in addition to those set forth elsewhere herein,
shalt be deemed a default entitling Beneficiary to the remedies set forth herein, in the Note, and otherwise
at Law or in equity:
(a) Trustor shalt file a voluntary petition in bankruptcy or shalt be
adjudicated a bankrupt or insolvent and such adjudication shalt remain unvacated, unstayed or unappeated for
an aggregate of sixty (60) days (whether or not consecutive), or shalt file any petition or answer seeking
or acquiescing in any reorganization, arrangement, composition, readjustment, Liquidation, dissolution or
similar relief for itself under any present or future federal, state or other statute, Law or regulation
relating to bankruptcy, insolvency or other relief for debtors; or shalt seek or consent to or acqui . esce in
the appointment of any trustee, receiver or liquidator of Trustor or of atL or any part of the Property, or
of any or all of the royalties, revenues, rents, issues or profits thereof, or shalt make any general
assignment for the benefit of creditors, or shalt admit in writing in inability to pay its it debts'
generally as they become due; or
(b) A court of competent jurisdiction shalt enter an order, judgment or decree
approving a petition filed against Trustor seeking any reorganization, dissolution or similar relief under
any present or future federal, state or other statute, Law or regulation relating to bankruptcy, insolvency
or other relief for debtors, and such order, judgment or decree shalt remain unvacated, unstayed or
unappeaLed for an aggregate of sixty (60) days (whether or not consecutive) from the first day of entry
thereof; or any trustee, receiver or liquidator of Trustor or of all or any part of the Property, or of any
or aLL of the royalties, revenues, rents, issues or profits thereof, shalt be appointed without the consent
or acquiescence of Trustor and such appointment shalt remain unvacated, unstayed or unappeated for an
aggregate of sixty (60) days (whether or not consecutive); or
(c) A writ of execution or attachment or any similar process shalt be issued or
Levied against aLt or any part of or interest in the Property, or any judgment involving monetary damages
shalt be entered against Trustor which shalt become a Lien on the Property or any portion thereof or
interest therein and such Lien is senior to the Lien of this Deed of Trust and such execution, attachment or
similar process or judgment is not released, bonded, satisfied, vacated or stayed within sixty (60) days
after its entry or levy; or
(d) There has occurred a breach of or default under any term, covenant,
agreement, condition, provision, representation or warranty contained in any of the documents or instruments
secured hereby.
(8) That upon default by Trustor in payment of any indebtedness secured hereby or in
performance of any agreement hereunder, Beneficiary may declare all sums secured hereby, and the same shaLL
thereupon become, immediately due and payable without any presentment, demand, protest or notice of any
kind. Thereafter, Beneficiary at its option may:
(a) Commence an action to foreclose this Deed of Trust or specifically enforce
any of the covenants hereof;
(b) Deliver to Trustee a written declaration of default and demand for sale and
of written notice of default and of election to cause the Property to be sold, which notice Trustee shalt
cause to be filed for record. Beneficiary also shalt deposit with Trustee this Deed of Trust and all
documents evidencing expenditures secured hereby.
After the Lapse of such time as may then be required by Law following the
recordation of said notice of default, and notice of sate having been given as then required by Law,
Trustee, without demand on Trustor, shalt sell the Property at the time and place fixed by it in said notice
of sate, either as a whole or in separate parcels, and in such order as it may determine, at public auction
to the highest bidder for cash in Lawful money of the United States, payable at time of sate. Trustee may
postpone sate of all or any portion of the Property by public announcement at such time and place of sate,
and from time to time thereafter may postpone such sate by public announcement at the time fixed by the
preceding postponement. Trustee shalt deliver to such purchaser its deed conveying the Property so sold, but
without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts
shalt be conclusive proof, of the truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sate.
After deducting all costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sate, Trustee shalt apply the proceeds of sate to
payment of: the costs and expenses of the sate, including but not Limited to Trustee's fees and expenses,
Legal fees and disbursements, title charges and transfer taxes; all sums expended under the terms hereof,
not then repaid, with accrued interest at the maximum amount then allowed by Law; aLL other sums then
secured hereby; and the remainder, if any, to the person or persons legally entitled thereto; arid/or
(c) Exercise all other rights and remedies provided herein or in the Note or
any other agreement securing all or any portion of the obligations secured hereby, or provided by law.
(9) That Beneficiary may from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the
Beneficiary and duty acknowledged and recorded in the office of the recorder of the county or counties where
the Property is situated, shalt be conclusive proof of proper substitution of such successor Trustee or
Trustees, who shalt, without conveyance from the Trustee predecessor, succeed to all its title, estate,
rights, powers and duties. Said instrument must contain the name,of the original Trustor, Trustee and
aw.— t. -v y hereWider, the book and page where this Deed of Trust is recorded and the name and address of
the new Trustee.
(10) That this Deed of Trust applies to and inures the benefit of, and binds at( parties
hereto, their heirs, Legatees, devisees, administrators, executors, successors and assigns. In this Deed of
Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the
singular number includes the plural.
(11) That Trustee accepts this Trust when this Deed of Trust, duty executed and
acknowledged, is made a public record as provided by Law. Trustee is not obligated to notify any party
hereto of pending sate under any other Deed of Trust or of any action or proceeding in which Trustor,
Beneficiary or Trustee shalt be a party unless brought by Trustee.
NB1-143262.V1 01/13/93
The undersigned Trustor requests that a copy of any notice of default and of any notice of
sale hereunder be mailed to it at its address hereinbefore set forth.
(12) That the rights and remedies of Beneficiary hereunder are cumulative with and in
addition to, and are not in Limitation of, all rights and remedies of Beneficiary otherwise available at Law
or in equity.
(13) That Trustor waives, to the fullest extent permitted by Law, the right to plead any
and all statutes of Limitation as a defense to any deimnd on the Note, this Deed of Trust or any other
security instrument now or hereafter securing the Note.
(14) That every provision of this Deed of Trust is intended to be severable. In the
event that any term or provision hereof is declared by a court of competent jurisdiction to be illegal or
invatid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms
and provisions hereof, which terms and provisions shall remain binding and enforceable, and any provision so
adjudged to be void, invalid, illegal or unenforceable for any reason shall be replaced, if possible, with a
valid provision that is enforceable and most nearly carries out the original intent of the parties hereto.
(15) That this Deed of Trust and the Note shalt be governed and construed in accordance
with the Laws of the State of California. In the event of any dispute hereunder or under the Note it is
agreed that the sole and exclusive venue shall be in a court of competent jurisdiction in Orange County,
California, and Trustor agrees to submit to the jurisdiction of such court.
(16) That the Lien of this Deed of Trust shall at all times be subordinate and subject to
the Declaration.
(17) That, unless Beneficiary so elects as evidenced by the recording of a declaration
so stating, no merger of the fee estate in the Property and the LeasehoLd estate of Lessee under the Ground
Lease shall occur by virtue of the conveyance of the fee estate in the Property to Trustor or the lien
created hereby, or as a result of any subsequent act or expression of Trustor and/or the Lessee under the
Ground Lease. Unlessand until Beneficiary so elects, Beneficiary shalt continue to have and enjoy all of
the rights and privileges of Beneficiary as to the separate estates. in addition, upon the foreclosure of
the Lien created by this Deed of Trust on the Property pursuant to the terms hereof, the Ground Lease shalt
not be destroyed or terminated by the application of the Law of merger or as a matter of taw or as a result
of such foreclosure unless Beneficiary or any purchaser at the foreclosure sale shalt so elect. Trustor
shalt keep in force the Ground Lease and shall not modify, amend, terminate, surrender or otherwise alter
the Ground Lease in any manner, and any such purported modification, amendment, termination, surrender or
other alteration of the Ground Lease shall not be binding upon Beneficiary or effective in the event of any
foreclosure of the lien created by this Deed of Trust or a deed in Lieu of foreclosure.
(18) That Trustor shall cooperate fully with Beneficiary in providing not more
frequently than once per anmxn, in a prompt and thorough manner upon Beneficiary's request, such financial
statements of Trustor, records of income and expenses concerning the Property, tenant teases and other
information concerning the Property as Beneficiary may reasonably request.
341 BAYSIDE DRIVE, INC.,
a California corporation
By:
By:
I ts:
I ts:
NB1-143262.V1 01/13/93
STATE OF CALIFORNIA
COUNTY OF ORANGE
on personalLy appeared
personaLLy known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose nams
are subscribed to the within instrLmnt and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behaLf
of which persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On personalty appeared
personalty known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowLedged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf
of which persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On personalty appeared
personalty known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf
of which persons acted, executed the instrument.
WITNESS my hand and officiaL seat.
Notary Public in and for said County and State .
STATE OF CALIFORNIA
COUNTY OF ORANGE
On personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf
of which persons acted, executed the instrument.
WITNESS my hand and official seat.
Notary Public in and for said County and State
NBI-143262.Vl 01/13/93
EYHIBIT A
DESCRIPTION OF LAND
341 Bayside
Parcel 1 :
Lot A, in the City of Newport Beach, County of Orange, State of California, as per map recorded in
Book 16, Page 10, Parcel Maps, in the office of the County Recorder of said County.
Parcel 2:
A ron-excLusive easement for the encroachment of the second story of the building Located on the
above described parcel I onto the adjacent property and any replacements or repairs thereof; provided that
any such replacements or repairs shall only be constructed within the air . space that the second story of the
building currently occupies as of the date hereof and provided further that in no event shaLL the easement
granted hereby be deemed or construed to extend beyond the area currently occupied by the second story of
such building.
NB1-143262.V1 A-1 01/13/93
EXHIBIT G
FORM OF LEASE
NB1-143265.V1 G-1 01/18/93
LEASE AGREE14ENT
(341 Rayside Drive)
THIS LEASE AGREEMENT ("LeaseH) is made this _ day of _, 1993 between THE IRVINE COWANY, a
Michigan corporation ("TIC"), and 341 UYSIDE DRIVE, INC., a California corporation ("Buyer").
RECITALS
A . TIC and Buyer are the parties to that certain Purchase Agreement and Escrow Instructions dated as
of -, 1993 (the "Purchase Agreement") pursuant to the terms of which TIC agreed to sell, and Buyer agreed
to purchase, that certain real property more particuLarty described therein (the "Land"). At[ initiaL�y-
capitalized terms not otherwise defined herein shalt have the meanings given such terms in the Purchase
Agreement.
B. Pursuant to the Purchase Agreement and the Grant Deed TIC expressly reserved any and all
rights with respect to the waterway adjacent to the Land and the marina Located thereon owned by TIC
(coLLectivety, the "Waterway") and Buyer fully reLinquished and released unto TIC any and aLL Littoral rights
that it or its successors and assigns may now or hereafter claim with respect to the Waterway, including,
without Limitation, any such right, title or interest claimed, asserted or resulting from the fact that the Land
abuts the Waterway.
C. Notwithstanding Buyer's express and complete waiver of any and all rights, title or interest
that Buyer or its successors or assigns may now or hereafter have in or to the Waterway as contained in the
Purchase Agreement, Grant Deed and Special Restrictions, Buyer and TIC desire to enter into this Lease, which
Lease shalt govern in the unlikeLy event that a court or other governmental authority at some future date (the
"Adverse Determination Date") decides that the Littoral rights with respect to the waterway have been
transferred to or are appurtenant to the Land despite the express agreement of Buyer and Set ter to the contrary.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. LEASE OF URTEMMY. Buyer hereby Leases to TIC and TIC leases from Buyer for the term, at the
rental, and upon all of the terms and conditions set forth herein, the Waterway.
2. TERN. This Lease shalt be for a term commencing on _ , 1993 and shall be in effect for
a period of ninety-nine (99) years. TIC shalt have the option of extending the term of this Lease for
additional five (5) year periods upon ten (10) days written notice to Buyer.
3. RENTAL. Commencing on the Adverse Determination Date, TIC shalt pay to Buyer as rental for the
Waterway the amount of Ten Dollars ($10) per annum, which amount shalt be payable in advance on the first day
of each year of the term of this Lease.
4. USE OF UATERUAY. TIC and its successors and assigns shall be entitled to occupy, use and operate
the Waterway in the manner that TIC or such successors or assigns elects in their sole discretion; provided that
such use and operation by TIC shalt not have a material adverse effect upon Buyer's use and operation of the
Land. TIC and Buyer hereby agree that the present use and operation of the Waterway, and any use and operation
of the Waterway in a manner substantially similar to the present use and operation of the Waterway, does not
and will not have a material adverse effect upon Buyer's use and operation of the Land. Buyer hereby
acknowledges and agrees that it shall not challenge, object to or interfere with TIC's occupancy, use or
operation of the Waterway in accordance with this Section 4.
5. REAL ESTATE TAXES. TIC shall pay all real property taxes, if any, imposed upon the Waterway. In
the event the Land and the Waterway are not at any time separately assessed, the real property taxes shalt be
allocated between the Land and the Waterway based upon the method used by the tax assessor in calculating such
taxes. Nothing contained herein shall be deemed or construed to require TIC to pay any taxes, or any other
amounts, attributable to, or relating to, the Land.
6. ASSIGNMENT. TIC shall be entitled to transfer, sublease, assign or hypothecate this Lease and its
interest in the Waterway without the consent of Buyer. TIC may, if it so elects, be released from any and aLL
Liability under this Lease in connection with any such transfer, sublease, assignment or hypothecation.
7. SUCCESSORS AND ASSIGNS. This ttase shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
S. QUIET ENJOYMENT. Buyer covenants and agrees that TIC, upon paying the rent required hereunder,
shall quietly have and enjoy the Waterway during the term of this Lease without hindrance or molestation by
anyone claiming by or through Buyer.
9. CHOICE OF LAW. This Lease shall be governed by, and construed and enforced in accordance with, the
Laws of the itate of Cati?ornia.
NB1-143261.V1 01/13/93
IN WITNESS WHEREOF, TIC and Buyer have executed this Lease as of the date first above written.
"TIC"
THE IRVINE COMPANY,
a Michigan corporation
By:
Its:
By:
Its:
"Buyer"
341 BAYSIDE DRIVE, INC.,
a CaLifornia corporation
B
Its:
By:_
I ts:
NBl-143261.Vl 01/13/93
MAR 24 '92 03:03PM CB COMMERCIAL
NPTBCH
PARCEL
SIZE
% TOTAL
1,261 Acre
54�929 SF
27%
2
.0133 Acre
578 Sip
3
.800 Acre
34,866 SF
17%
53
1.6S Acre
71,874 SF
35%
.5529 Acre
24tO86 SF
12%
-.4
.4088 Acre
17�808 SF
8.8%
TOTALS
4.6860 Acre
204J22 SF
100%
Total # Boat Slips
Total # Parking Spaces
bwp4rw
-12r%g. RR*4
7
4-;
j6
PAR WEST SERVI.MS
NEWWRT COMPLEX
PARKING SUMMARY
Seatin5l Parkincr
DiniM Bar Total Required Actual
Zzadore"s 174 8 182 61
70*
-Reubens 132 60 192 64
326**
Reuben 324 122: 446 149.
Total 274 396
.70 int use of 35 spaces weekdays before 5:00 p.rx.
Joint use of 88 spaces with Balboa Marina
Deducting 88 spaces for the marina nets a total of 308
spaces
for restaurant use, which is 34 in excess of Code requirements.
Additionally, Far West Services has obtained 50 spaces for
an.
indefinite time at Vie Bayside Village Trailer Park for use of its
employees. This increases the excess spaces to 84.
�a
51
A,
3.
BALBOA MARINA
TECHINICAI., INFORMATION
01(72'0i� P.�ILTLNG
IT'liE REQG11RE.mENTS'�
T��'e Contractor f-ki-cniish a. -LT tools, materials, equip-
r,�,ert and su-nervJis-i-on necessary to install anchor piles as
sliown on the drawings and as sDecified herein.
F A rn TP 0 T A T 0
All anchor -iles shqll be 1,4" diameter -orestressed concrete
piles to the length, location and design as shown on the
drqwings.
C. ALIGNMENT AND TOLERANCES
All anchor riling shall he r)],,aced within a horizontal toler-
,qncp of nl,us or minus �" ind a 'vertical tolerance of T)Ius or
mi n u i� 3 " . The T)j 'I i nP �7,h-O ) he n I timb to within �/4 inch in
iO foot vertic�il mo--, �.:;ur��ment. I'ilinp connections shall be
nositioned in Such a ma-riner that the system shall not move
horizontally more than 1" before encountering anchor piling.
Cut off elevation = +11 M.L.L.W..
D. HANDLING AND DRIVING
1. All piles shall be driven by such methods and equipment
as will not impair their strength or damage the piles.
2. Requirements for handl-Ing, during driving operations
shall be the sa-me ;�s those -J"or handling after fabrica-
tionp but in addit.�Ion, s-,,�ecial. precautions sha.11, be
taken in handling to nrc�vent leading away from plumb or
true position when driving.
3. Should any obstruction be encountered which prevent the
pile from reaching, adequate penetration or cause the
rile to drift fxom the reoiired loc�ition., driving shall
cease, and the Contr:-ictor snall.notify the Engineer for
instructions as to the best means of correcting the
situation.
4. Under no circumstances are -niles to be jacked or other-
wise forced into pro -per alignment after driving has
been completed.
P A G 12 1
(D. Handling and Driving)
5. Piles that are overdrivin, mislocated or driven out of
alignment shall be withdrqwn and redriven at no cost to
Owner. Piles that are damaged during handling or driv-
�ing shall be replaced with a pile of equal size and
design at no expense to the Owner.
CONCRETE WORK
A. CONCRETE
Lightweight concrete used for the manufacturing of Tee
Dock panels and pontoons sh�911. have a dry unit weight of
105 pounds per cubic foot,
The minimum compressive strength shall. be 3,000 p.s.i. at
28 days. Lightweight aggreg
,ate used in the mix shall be
maximum 3/8" agpregate as manufactured by Rigelite or
eq.ual.
B. MANUFACTURIN
Forms
The pontoons shall be c-)st in steel forms with a
smooth, true surface. Forms shall have a total
tolerance of plus or minus 1/8" in all directions.
Forms shall be cleaned and oiled with an acceptable
form oil before each rontoon is cast.
2, Concrete Placement
Concrete shall be placed in forms in such a manner
as to prevent any segregation of the concrete mix.
The concrete shall be 'vibrated both internally and
externally in order to insure a dense and smooth
finish.
3. Finish
Deck surfaces shall be trowel finished with a steel
trowel and a light broom finish applied. The surface
shall be s- ' prayed with an acceptable curing compound
immediately after finishing, The remainder of the
float should be s-orayed after stripping.
C. REINFORCING MATERIALS
Extreme care shall be taken to insure proper placement of
reinforcing material during casting.
PAG E 2
FOAM CORE
�The float core shall be expanded polystyrene foam. The
core shall be placed and held in true position during the
casting oneration. The tolerance of -the foam core shall
be.a total of -ol.us or minus 1/8" variation in any direction.
Proper vibration of the concrete shall be maintained to in-
sure a bond between foam and concrete surfaces#
EATERIALS FOR FLOATATION SYSTEM
A. LUMBER
All lumber used in the construction of the floating dock
system shall be construction #1 grade douglas fir or
better, provided. there are no loose knots or other defects.
'All lumber to be S4S and selected for appearance.
B. LUMBER TRj7,ATMENT
All lumber for the construction of the floating docks
shall be pressure treated per AWPA Specification C2-74
(CCA) to prevent dry rot. No incising on ex-oosed lumber.
All,field cuts and bored holes to receive a brush coat of
concentrated preservative.
C. PLYWOOD
Plywood when used as a,deck surface on knees, finger
ends, etc. shall,be Grade A -B exterior with a medium
density overlay, Durinly,' Harborite or equal.
D., BUMPER STRIPPING
Bumppr�:stri ing shall. be.white or off- white, extruded
Pp
vinyl plastic,.ethylene troDlene, neoprene or other
synthetic rubber, com-oounded to2 resist salt water, ozone
-and sunlight,
E. BUMPER NATLS
Bumper, stri-oping shall be secured to the fender lumber
with 11" hot dip
galvanized, domestic roo-ring
, nails at
4" O.C9 staggered top and bottom'. Nails to be as manu-
.factured by Keystone or appr�v �equal.
o ed,
,F.' HARDWARE
hardware, �includi. na bolts, cleats, knee frames,
iclip angles, etc. shall be hot dipped galvanized
after fabrication.
PAGE
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
THE IRVINE COMPANY
c/o Irvine Retail Properties Company
2 Park Plaza
Third Floor
Irvine, California 92714-5904
Attn: David Fields, Esq.
(Space above this line for Recorder's use only)
SECOND AMENDMENT TO
RECIPR6CAL GRANT OF EASEMENTS
PARTIES AND DATE
This Second Amendment to Reciprocal Grant of Eliements
(the "Second Amendment") is made this,j,-,!!:e day of �h -01
1991, by and between THE IRVINE COMPANY, a Michigan corporation
("Irvine") and GRC RESTAURANTS, INC., a California corporation,
successor in interest to Grace Restaurant Company, a California
corporation, formerly known as Far West Services, Inc.
("GRC"). Irvine and GRC are sometimes individually referred to
herein as "Owner" and collectively referred to herein as
"Owners."
II. RECITALS
A. Pursuant to the following described ground leases
(collectively the "Ground Leases"), Irvine is leasing to GRC an
interest in real property located near the intersection of
Pacific Coast Highway and Bayside Drive in the City of Newport
Beach, State of California, which real property interests
(collectively the "Leased Premises") are more particularly
described on Exhibit "A" attached hereto and incorporated
herein by this reference:
1. Ground Lease dated June 30, 1960 by and between
Irvine, as lessor, and GRC, as lessee and successor -in -
interest to Richard I. Stewart and Charles Ullman, as
amended by that certain Amendment No. 1 to Lease dated
February 23, 1978, that certain Amendment No. 2 to Lease
dated December 15, 1984 and that certain Third Amendment
to Ground Lease dated August 20, 1987.
2. Ground Lease dated October 1, 1963 by a rid between,
Irvine, as lessor, and GRC, as lessee and successor. -in -
interest to John R. McIntosh, James L. Gray and william C.
McIntyre, as amended by that certain Amendment No. 1 to '
Ground Lease dated April 15, 1964, that certain Amendment.
No. 2 to Ground Lease dated September 10, 1964, that
certain Amendment No. 3 to Ground Lease dated November 15,
1984 and that certain Fourth Amendment to Ground Lease
dated August 20, 1987.
B. Adjacent to the Leased Premises, Irvine owns that
certain real property described on Exhibit "B" attached hereto
and incorporated herein by this reference (the "Marina Parcel")
and that certain real property described on Exhibit "C"
attached hereto and incorporated herein by this reference (the
"Corner Parcel"). The Marina Parcel, the Corner Parcel, and
the Leased Premises are sometimes collectively referred to
herein as the "Property..N
C. The owners established certain reciprocal easements
for access, ingress and egress to and from, and parking on,
each of their respective parcels, all for the purpose of
convenience in operating their respective business operations
at the Property by the execution of that certain Reciprocal
Grant of Easements Agreement dated January 26, 1987, and
recorded on March 13, 1987 as Instrument No. 87-138040 in the
official Records of the County Recorder's office for the County
of Orange (the "REA").
D. The Owners amended the REA by the execution of that
certain First Amendment to Reciprocal Grant of Easements dated
August 20, 1981 ("First Amendment").
E. The owners now desire to amend the REA and First
Amendment to allow for GRC to conduct valet parking.
NOW, THEREFORE, the owners hereby agree as follows:
III. AMENDMENTS TO REA AND FIRST AMENDMENT
1. Permission to Usem Valet Parking. The Owners hereby
agree that GRC shall be permitted to conduct a valet parking
service pursuant to the following terms and conditions.
2. Term. The term of this Second Amendment is for one
year from the date this Second Amendment is signed by the
Owners ("Term"). The Term will be automatically extended at
the end of each and every year for an additional one year
period unless either party elects to terminate this Second
Amendment upon at least 30 days written notice before the
expiration of the Term but in no event more than 60 days before
the expiration of the Term. In addition to the foregoing and
8870r/3400/640 -2-
except as provided in paragraph 4F of this Second Amendment, in
the event GRC or its agents violate any term or provision of
this Second Amendment, then Irvine shall have the right to
terminate this Second Amendment for cause if GRC shall fail to
cure such violation within 3 days from the date of notice from
Irvine to GRC of such violation; provided, however, that if
such violation by its nature cannot be cured within 3 days
Irvine shall not have the right to terminate this Second
Amendment for cause so long as GRC shall commence curing such
violation within 3 days from the date of the notice from Irvine
of such violation, and shall diligently prosecute such cure to
completion within a reasonable time not to exceed 30 days after
the date of such notice.
3. valet Parking Service Used. GRC shall have the right
to select a valet parking service company ("Service") of its
choice. Irvine shall have the right to request from GRC any
and all reasonable information concerning the proposed Service.
4. Restrictions on the Service. Any Service used by GRC
must comply with the following:
A. Identification. Valets must wear identification
at all times while on the Property.
B. Are . Valets shall be allowed the non-exclusive
use of the areas depicted on Exhibit."DN attached hereto
and incorporated herein by this reference ("Valet AreaN).
C. Signage - nd Cones. Valets may,use signage to
designate that there is valet parking available, provided
that the specific signage used and the location of such
signage shall be pre -approved by Irvine, said approval not
to be unreasonably withheld. Absolutely no cones shall be
used by GRC or Service.
D. Insurance. Service, at its sole cost and
expense, commencing on the earlier of (i) the date the
Service commences operations, or (ii) the date the Service
enters the Property, and continuing during the Term, shall
procure, pay for and keep in full force and effect the
following types of insurance, in at least the amounts and
in the forms specified below:
(1) Comprehensive liability insurance with
coverage limits of not less than One Million Dollars
for bodily injury, personal injury, death and property
damage liability per occurrence, insuring against any
and all liability of the insureds with respect to the
Valet Area or Property or arising out of the
maintenance, use or occupancy of the Valet Area or
related to the exercise of any rights of the Service
pursuant to this Second Amendment, or the operation of
8870r/3400/640 -3-
the Service subject to increases in amount as Irvine
may reasonably require from time to time. All such
comprehensive liability insurance shall specifically
insure the performance by Service of the indemnity
agreement as to liability for injury to or death of
persons and injury or damage to property set forth in
paragraph 7. Further, all comprehensive liability
insurance shall include, but not be limited to,
personal injury, blanket contractual, cross-liabilitY
and severability of interest clauses,
products/completed operations, broad form property
damage, independent contractors, and owned, nonowned
and hired vehicles.
(2) Worker's compensation coverage as required
by law, including employer's liability coverage, in
amounts satisfactory to Irvine, and waiver by
Service's insurer of any right of subrogation against
Irvine by reason of any payment pursuant to such
coverage.
E. Policy Form. All policies of insurance provided
for herein shall be issued by insurance companies with
general policy holder's rating of not less than A and a
financial rating of not less than Class xII, as rated in
the most current available "Best's Key Rating Guide," and
which are qualified to do business in the State of
California. All such policies shall name and shall be for
the mutual and joint benefit and protection of Irvine, the
Service, Sunwest Asset Management Corporation, California
Recreation Company and Irvine's mortgagee(s) or
beneficiary(ies), and the employees, agents, officers,
directors and shareholders of each of the foregoing,
(collectively the "Indemnitees") as additional insureds.
Executed copies of the policies of insurance or
certificates thereof shall be delivered to Irvine prior to
Service, its agents or employees entering the Property for
any purpose. Thereafter, executed copies of renewal
policies or certificates thereof shall be delivered to
Irvine within 30 days prior to the expiration of the term
of each policy. All public liability, property damage and
other casualty policies shall be endorsed to read that
such policies are primary policies and any insurance
carried by Indemnitees, jointly or individually, shall be
noncontributing with such policies.
F. FaiLure by 5ervice to Maintain Insul3ln-C&-
Notwithstanding the 3)K -day right to cure provision under
paragraph 2 of this Second Amendment, if Service refuses INITbkL
or neglects to secure and maintain insurance poliC
complying with the provisions of this Paragraph 4, Irvine(#)
may terminate this Second Amendment effective ten (10)
days after the date of written notice from Iry ine to GRC \T
of such failure.
8870r/3400/640 -4-
5. other Rules an ReqkL4t�i�n * Irvine shall have the
power to promulgate reasonable rules and regulations for the
operation of the Service, and GRC and the Service shall
promptly comply with same.
6. operation Costs. Irvine shall not be responsible or
liable for any start-up, operation, management, repair or any
other cost directly or indirectly associated with the
management or operation of the Service.
7. Indemnity. To the fullest extent permitted by law,
GRC covenants with Irvine that the Indemnitees, shall not be
liable for any damage or liability of any kind or for any
injury to or death of persons or damage to property of GRC or
any other person occurring after the date this Second Amendment
is signed by the owners from any pause whatsoever related to
the use, occupancy or enjoyment of the Valet Area or the
Property by GRC or any person thereon or holding under GRC
including, but not limited to, damages resulting from any labor
dispute. GRC shall defend, indemnify and save the Indemnitees
harmless from all liability whatsoever on account of any real
or alleged damage or injury and from liens, claims and demands
related to the use ofthe Valet Area and its facilities and the
Property, or any repairs, alterations or improvements which GRC
may make or cause to be made upon the Valet Area, and any loss
or interruption of business or loss of rental income resulting
therefrom. GRC shall in all cases accept any tender of defense
of any action or proceeding in which the Indemnitees are named
or made a party and shall, notwithstanding any allegations of
negligence or misconduct on the part of the Indemnitees, defend
the Indemnitees as provided herein. This obligation to
indemnify shall include reasonable attorneys' fees and
investigation costs and all other reasonable costs, expenses
and liabilities incurred by the Indemnitees or their counsel
from the first notice that any claim or demand is to be made or
may be made. GRC shall not be liable for any damage or injury
to the extent and in the proportion that the same is ultimately
determined to be attributable to the negligence of Irvine or
its designated agents, servants, contractors or employees, and
Irvine shall reimburse to GRC its reasonable cost of defense to
the extent and in the proportion of Irvine's negligence.
8. No Vicari Li -ility. The owners agree that GRC and
the Indemnitees are not to be deemed partners or joint
venturers, and that the services to be rendered by the Service
are as an independent contractor. Indemnitees shall not be
vicariously liable for the acts or omissions of the Service,
its officers, employees, or agents.
9. Licenses and -Permits. All licenses and permits
required for the operation of the Service shall be in either
GRC's or the Service's name. Irvine shall not be liable for
the cost or the obtaining of any licenses or permits-.
8870r/3400/640 -5-
10. Ssafetty and Cleanliness. GRC and its agents or
representatives shall at all times maintain the Valet Area in a
safe, clean and orderly manner, and in a condition which is
acceptable to Irvine.
11. Approval by Beneficiar The Owners hereby
acknowledge that this Second Amendment is subject to the prior
approval of Prudential Insurance Company of America.
12. Conflict or Inconsistency. In the event of any
conflict or inconsistency between the terms and conditions of
this Second Amendment and the terms and conditions as set forth
in the REA or First Amendment, the terms and conditions of this
Second Amendment shall control and govern the rights and
obligations of the parties.
13. REA and First Amendme-n-t. The REA and First Amendment
in all other respects shall remain the same and -be binding and
enforceable as against the Owners and their successors and
assigns.
14. CounterparU. If this Second Amendment is executed in
counterparts, each counterpart shall be deemed an original.
IV. EXECUTION
The parties have executed this Second Amendment on the
date set forth in "I. PARTIES AND DATE" above.
"Irvine"
THE IRVINE COMPANY,
a Mich* Van rporation
P, Pp By. frAderick 0. Evans
Presid nt
Me
C.7
By:
Clarence W. Barker
Its: Assistnnt
Address:
c/o Irvine Retail Properties Company
2 Park Plaza
Third Floor
Irvine, California 92714-5904
Attn: David Fields, Esq.
8870r/3400/640 -6-
"GRC"
GRC RESTAURANTS, INC.,
a California corporation
By: 104
I S
By: ---
I t s
Address:
2701 Alton Avenue
Irvine, CA 92714
8870r/3400/640 -7-
VESSEL MOORING AGREEMENT
THIS VESSEL MOORING AGREEMENT is made by and between CALIFORNIA RECREATION CO. (hereinafter
referred to as "Company") and
(hereinafter individually and collectively referred to as
"Vessel owner").
The Vessel Owner desires to moor his vessel described below (hereinafter referred to as the.
"Vessel") at mooring space No. (hereinafter referred.to as the "Mooring") at
(hereinafter referred to as the "Marina!').
in reliance on the promise made by the Vessel Owner to perform all the terms and conditions of use
contained in this Agreement, Company hereby grants to Vessel Owner the right to moor the Vessel
described below at the Mooi*ig and for no other purpose, beginning on the day of
19 _ . and continuing thereafter on a month -t6 --month basis until
term,inated according t Paragraph 7 below.
1. Vessel Description. Vessel Name: CF/Doc. No.:
Builder: Builder's Hull No. Type
Total Length Beam Draft
(including bowsprit, pulpit,, boarding step, etc.)
Insurance Carrier/Agent- Insurance Policy No. -
Vessel Owner agrees to give Company written notice of any change in the Insurance Carrier,
0
Insurance Agent, or Insurance Policy Number, within five (3) days after the occurrence or any
such change.
Z. Owner. Name: ---
Residence Address(es),
Business Address(es),
Phone- Res. Bus.
Le -al Owner:
(such as corporation, lienholder or other name appearing on evidgnce or tit7a7—
Address: Phone:
Vessel Owner agrees to give Company written notice of any changes in the above information.
within five (5) days after the occurrexiceof any such change.
3. moorinR Fees. Vessel Owner agrees to pay Company mooring fees of
Dollars (� ) per month, in advance, on or before the first day of each month, at
company's ice at 550 Newport Center Drive, Newport Beach, California, or at such other place
as may from time to time be designated by Company in writing. Vessel Owner agrees and under-
stands that Company will not bill Vessel Owner for monthly mooring fees, and that Vessel Owner
must pay these fees to Company each month without any prior billing, demand or notice. Vessel
Owner agrees to pay a service charge of Dollars ($ )
mooring 0 fees are not paid within ten (10) days of the due data, 5lus an additio-n-31 charge or
Dollars ($ for each ) day period
thereafter, until same shall hav-e-Fe-e-n-7-uEr7- -paid. Upon not less than—sixt7 (60) days' prior
written notice to Vessel Owner, Company may alter At any time the amount of monthly mooring fees
payable under this Agreement.
4. Securit:7 Denosit. Vessel Owner agrees, upon the execution of this Agreement, to deposit with
the Company the sum or Dollars (' as a
deposit to the faithful pertormafice of Vessel Owner's W=gations hereun—der7-7`ompanyma7 , at
its sole option, claim such amounts of said deposit as are,teasonab17 necessary in Company's
judgment to remedy Vessel owner's defaults in the payment of mooring fees and other charges, to
repair damages to the Mooring or the Marina caused by Vessel Owner or any person in or about the
Marina through or under Vessel Owner, to clean the Mooring when Company regains possession of
the.same, and t ' o pay any reasonable attorneys' fees incurred by Company in connection with any
default or breach hereof by Vessel Owner. In the event this security depogit or any portion
thereof shall be applied as provided herein, Vessel Owner agrees to deposit with Company within
ten (10) days after written demand from Company an amount sufficient to restore said security
deposit to its original amount; and failure to do so shall constitute a breach of this Agreement.
4. Securit7 Deposit. (Cont'd)
Upon termination of this Agreement as provided in Paragraph 7, any remaining portion of said
Security Deposit will be returned to Vessel Owner as soon after Company has regained possession
of the Mooring and is able to determine the amount of said deposit it may claim hereunder.
Vessel.Owner may not use any portion of said Security Deposit as payment of his last month's
mooring fees.� Company shall have the right to commingle said security deposit with other funds
of Company. Company shall not.be obligated to pay interest on said security deposit.
5. Use Conditions. Vessel Owner promises that he,,Lll perform or abide by each and every condition
of use conFaMned in this Agreement. Vessel Owner will not cause or allow'the Mooring to be used
for Any purpose other than the mooring of only the Vessel described in Paragraph I above, and
forather uses consistent with said mooring not prohibited herein.
(a) Live Aboards. While at the Mooring, the Vessel shall not be used as a primary or secondary
.residence r any person without the prior written approval of Company. No person shall
live.aboa-rd the Vessel for a period in excess of fort7-eight� (48) hours without the prior
written approval of Company.
�,b) Discharge of Waste. No waste matter from sinks, toilets, marine heads, holding tanks,
bilaes or any ottier receptacles shall be discharged into the waters of the Marina. If
Vessel is equipped with a toilet, a marine head, or any other permanent or temporary
receptacle for human body wastes, then the Vessel must be equipped with a holding tank
designed to retain all human body wastes deposited in the receptacle until.such.time as
tary sewer system or discharged otherwise in Accor -
the wastes can be discharged into a sani�
dance with law. Vessel Owner agrees to permit Company to inspect such holding tanks from
time to time upon demand by the Company.
(c) Signs. No sign for the purpose of advertising or display shall be placed on the vessel
the prior written Approval of Company.
(d) Overhangs. No part of the Vessel shallat =7�time extend over any portion of any dock in
the �artna, and Vessel Owndr-agrees to indemnify and hold Company haimless for any injury
or damage caused by any failure to comply with this condition.
(e) Securing Vessel. At all times during which the -Vessel is berthed at,the mooring, Vessel
Owner shall cause it to be safely and properly secured.to its mooring in a manner acceptable
to Ccmpan7. If Company deems it necessary to resecure the Vessel. for any reason, Vessel
Cromer agrees to pay Company a reasonable service charge for doing so plus the cost of all
materials used therefor. However, Company assumes no responsibili"7 for the safety Of the
Vessel and will not be liable for fire, theft or any damage to said Vessel, its equipment,
or any property in or on said Vessel by reason of Company?s decision either to resecure
saLd-vessel or to not resecure said Vessel..
(f) Condition of Mooring. Vessel Ow.ner.hereb7 acknowledges that Vessel Owner has inspected
the Mooring and those portions of the Marina associated with the Mooring, including,
without limitation, the floats; walks, gangways, and ramps, knows the condition of same,
hereby accepts the Mooring in such condition and agrees that no statement or representation
as to condition has been made by the Company. Company shall not be responsible for injuries
to persons or property Occurring thereon or for any, other reason.
(g) Vessel Owner's Care of Mooring and Docks. Vessel Owner shall not store any small boats,
dinghies, skiffs, bait tanks, boat gear, power lines, water,hoses or other personal property
whatsoever at the Mooring (other than aboard the Vessel) or�on the docks or gangways adjacent
to the Mooring, but shall keep the Mooring and said docks and gangways in a neat, clean
and orderly condition, free and clear of all such items other than power lines and water
hoses in use. No wheels, fenders, rubbing strips or other cushioning devices may, be
attached to a dock for the purpose of protecting hulls, without the prior written approval
of Company, No. alterations,may be made to the docks by the Vessel Owner, No f1mmmable or
combustible materials shall be stored or'left on the docks of the Marina. Vessel.Owner,
agrees to make a written report to Company of any conditions existing on or. about the
Marina which Vessel Owner'believes to -be a hazardous condition or which might develop into
a hazardous condition.
(h) Commercial Enterprise. Vessel Owner will not conduct or allow the Vessel to be used for
commercial enterprisg during the existence of this Agreement without the prior written
approval of the Company.
(i) Guests. Vessel Owner agrees.that all -guests and hired personnel will conform their
Tc-tivities to the requirements of this 0 Agreement, and Vessel Owner agrees to be liable for,
and tolindemnily and hold Company harmless from, any damages or injury causedb7 any, such
guest or hired personnel while in the Marina. Company reserves the right to regulate the
entry into the Marina by yachtbrokers and yacht service personnel. Company may ascertain
that third parties aboard the Vessel are authorized by Vessel Owner to be aboard.
2
5. Use Conditions (Cont'd)
(j) Extended Vessel Absence. Continuous vacancy of the Mooring for more than fifteen (15)
days is conclusively presumed to constitute both an abandonment of the Mooring by Vessel
Owner and an immediate termination of this Agreement, unless the Company is notified in
writing prior to the commencement of said period of absence of Vessel Owner's intention
to maintain this Agreement in full force and effect.
(k) Change of M2or Company reserves the right to move or to require a Vessel Owner to
The
move the Ve m the Mooring to another mooring within the Marina at any time for any
reason whatsoever. Vessel Owner hereby grants to the Company permission to board the
Vessel for said purpose. Neither Company nor any of its officers, agents or employees
shall have'any liability for loss or damage resulting from any such movement of the Vessel
or from any failure to move the Vessel.
(1) Insurance. Vessel Owner agrees to maintain in force a policy of complete marine insurance
coverage, including liability coverage. Said insurance policy shall be maintained on a
minimum basis of $50,000 for damage to property,.$100,000 for bodily injury to or death
of any one person, and $200,000 for bodily injury or death in any one accident.
(m) Assignment and Subletting. Vessel Owner shall have no right or power whatsoever to assign
this Agreement or sublet the Mooring or any part thereof to any other person or party
whatsoever or for use by any other vessel whatsoever. No attempted transfer or assignment,
whether voluntary or involuntary, by operation of law, under legal process or proceedings,
by receivership, in bankruptcy, or otherwise, and no attenpted subletting, shall be valid
or effective, but shall automatically terminate this Agreement. If Vessel Owner notifies
the Company in writing of his intention to have the Mooring vacant for a stated period, the
- --.7 - --- C6�U&A, �L=U�L V1=Zb1=.L VWLAU.L: ZS &LUL;UUL1L LUr Ele-L
income received from such use.
(n) Regulatio ns. Vessel Owner agrees to use the Mooring and the Marina in accordance with the
Company's Rules and Regulations, a current:copy of which Vessel Owner has received and
which, by this reference, is made a part hereof. Company reserves the right to modify its
Rules and Regulations from time to time. Vessel Owner further agrees not to violate any
law, ordinance, rule or regulation ofany governmental authority with respect to the Mooring
or Marina.
6. Parties' Liabilities. Vessel Owner hereby agrees to hold Company harmless from and to I pay upon
demand all costs of repair and restoration necessitated by any damage or destruction to the
Mooring or the Marina or any part thereof or any vessels located therein or thereabout resulting
from any act or omission of Vessel Owner and/or any person in or about the Mooring orthe Marina
through or under Vessel Owner.
Vessel Owner agrees that any electrical service taken from a common outlet to his Vessel will be
properly connected by Vessel Owner so as to prevent any damage orinjury to the Vessel, persons,
docks, other vessels in and all portions:of the Marina. Vessel Owner hereby assumes liability
for all such damage or injury arising from his use of electrical service.
Vessel Owner agrees to indemnify and hold Company harmless from any damage or injury to the
Vessel, to the Vessel Owner, to his family, guests or hired personnel, from any cause. Vessel
Owner waives all claims against the Company for damage to persons or property arising for any
reason.
Vessel Owner agrees that Company shall not be liable for, and this Agreement shkll not be ter-
minated or altered by, any interruption of or interference with the Mooring, utility services or
restroom accommodations due Vessel Owner hereunder caused by strike, riot, orders or acts of
public authorities, acts of third parties, accident, the making of necessary repairs to the
Marina, or any cause beyond Company's control.
If more than one Vessel Owner is a party to this Agreement, the obligations of all such Vessel
Owners shall be and is joint and several.
7. Termination. Except as otherwise provided in subparagraph 5(j) above:
(a) This Agreement may be terminated at any time by either party for any reason whatsoever upon
not less than thirty (30) days' written notice.
(b) This Agreement shall, at the sole option of Company, automatically and immediately terminate
at such time as Vessel Owner sells, leases, charters or otherwise transfers any or all of
his interest in the Vessel to any other party, whether or not such transfer is voluntary or
involuntary by operation of law, under legal process or proceedings, by receivership, in
bankruptcy or otherwise. 0
(c) If Vessel Owner fails to perform any of the terms, conditions and promises as set forth in
this Agreement, Company may, without waiving any other remedies it may have, immediately
terminate this Agreement upon written notice to Vessel Owner..
3
7. Termination (Cont'd)
(d) This Agreement shall automatically terminate upon any destruction of the Mooring by reason
of fire, storm or any other cause.
8. Surrender. Upon termination of this Agreement, Vessel Owner shall remove the Vessel from the
Ro-oring, shall remove all other of his personal property, if any, from the Marina, and shall
surrender to the Company the Mooring and all keys to the Marina in as good conditionas existed
at the date of this Agreement.
9. Remedies for Default. If Vessel Owner fails to pay mooring.fees, costs of repair or restoration
or other charges to be paid by Vessel Owner, or in the event of any other default by Vessel
Owner, Company may, at its option, pursue any and/or all rights and remedies as are now or may
hereafter be provided or allowed by law or in equity, including, without limitation, the right
to recover from Vessel Owner all amounts provided or allowed by law, the right to take possession
And control of and remove and store the Vessel for the purpose of perfecting and executing upon
Company's statutory lien rights in the Vessel and/or the remedy of prosecuting an unlawful
detainer action against Vessel Owner. In the event of any default by Vessel 6wner in the pay-
ment of charges for mooring or for the furnishing of services by Company for the benefit of the
Vessel, Vessel Owner does hereby give Company permission to take possession of said Vessel for
purposes of executing any lien arising againstsaid Vessel, said possession to be conclusively
presumed to be lawful.
10. No Waiver. The exercise or failure to exercise any available remedy for any breach of this
Xg-reement shall not constitute a waiver of Company's right. to have that or any other remedy for
any other breach of the same or anyother provision of this Agreement. Failure of Company to
exercise any of its rights under this Agreement or Company's acceptance of the mooring fee after
any default shall not be considered or construed to waive any right of Company or to affect any
notice or legal proceedings theretofore given or commenced.
11. Attorneysi Fee s. In the event Company shall bring an legal action to enforce or have declared
ajany of its rights or remedies hereunder, Company sh I be entitled to recover as part of such
Action its reasonable attorneys' fees and court costs, ,
12. Notice. Any notice to be given or document to be delivered by either party to the other shall
E-ein writing and may be delivered inperson to Any officer'of Company, or to Vessel Owner, or
may be deposited in the United States mail in the State of California, with postage prepaid and
addressed to Company at its address set forth in Paragraph 3 above, and to Vessel Owner at the
residence address set forth in Paragraph 2, or at such other address as either of the parties
may hereafter designate by written notice given in accordance with this paragraph. If more than
one Vessel Owner is, a party to this Agreement, service of any notice upon any one of said Vessel
Owners shall be deemed as service upon. all of said Vessel Owners.
VESSEL OWNER REPRESENTS AND WARRANTS THAT ALL STATEMENTS MADE HEREIN ARE FULL, TRUE AND CORRECT.
VESSEL OWNER ACKNOWLEDGES THAT THE COMPANY HAS FULLY RELIED UPON THESE STATEMENTS IN EXECUTING
THIS AGREEMENT.
COMPANY DOES NOT HEREBY ASSUME CUSTODY OR POSSESSION OF THE VESSEL NOR ANY RESPONSIBILITY
WHATSOEVER FOR THE CARE OR PROTECTION OF SAME. RATHER, VESSEL OWNER HEREBY ASSUMES ALL RISKS
ASSOCIATED WITH THE USE AND OCCUPANCY OF THE MOORING AND AGREES THAT:COMPANY, ITS DIRECTORS, OFFICERS,,
AGENTS AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY INJURY, INCLUDING DEATH, TO ANY PERSON CAUSED BY
ANY USE OR OCCUPANCY OF THE MOORING OR ARISING FROM ANY ACCIDENT OR FIRE OR OTHER CASUALTY THEREIN
OR THEREABOUT OR FROM ANY OTHER CAUSE WHATSOEVER, NOR SHALL COMPANY, ITS DIRECTORS, OFFICERS, AGENTS
OR EMPLOYEES BE LIABLE FOR ANY LOSS OF OR DAMAGE TO ANY VESSEL, GEAR, EQUIPMENT, FITTINGS, FIXTURES,
CONTENTS AND OTHER ARTICLES BELONGING TO VESSEL OWNER OR LOCATED IN OR ABOUT THE MOORING OR THE
MARINA. VESSEL OWNER HEREBY AGREES TO'INDEMNIFYAND HOLD COMPANY, ITS DIRECTORS, OFFICERS, AGENTS
AND EMPLOYEES HARMLESS FROM ALL LIABILITY FOR ANY SUCH INJURY, LOSS, DAMAGE OR CLAIM, INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COURT COSTS.
IN WITNESS WHEREOF, the parties have executed this Vessel Mooring Agreement as of the
day of 19
CALIFORNIA RECREATION CO.
By:
I'Company"
I EXISTING EASEMENTS I I
I
I 0 UTILITY EASEMENT RESERVED IN FAVOR OF SOUTHERN
CALIFORNIA EDISON COMPANY, ORANGE COUNTY SANITATION
DISTRICT NO. 5, SOUTHERN CALIFORNIA GAS COMPANY,
TELEPROMPTER CABLE TV, PACIFIC TELEPHONE & TELEGRAPH
- COMPANY AND THE STATE OF CALIFORNIA PER INSTRUMENT NO.
83-549259, O.R. �
. � .
�
EASEMENT FOR UTILITY VUKPWtb THE CITY OF NEWPORT
(D BEACH PER TRACT 5361. �
'
'
(D EASEMENT FOR WATERLINE PUR SES TO THE CITY OF
NEWPORT BEACH PER 74451777, O.R. �
'
0 EASEMENT TO SOUTHERN CALIFOR A EDISON COMPANY PER
11456/1130, O.R.
0 EASEMENT TO SOUTHERN CALIFOR A EDISON COMPANY PER
13718/1004, O.R. � .
I �
G) 'EASEMENT FOR RETAINING WALL F90TINGS TO THE STATE OF
CALIFORNIA PER 14242/1773, O.R. � I
EASEMENT FOR BUILDING STRUCTURE PER 86-227836, O.R.
0 ' �
! I
, (�) VEHICULAR ACCESS RIGHTS TO PACIFIC COAST HIGHWAY HAVE
I BEEN RELEASED AND RELINQUISHED TO THE CITY OF NEWPORT
-
" I'l- I .1 I BEACH PER TRACT5361, 7166/657, O.R., AND 7166/661, O.R.
I I �
,
'
I G) EASEMENT FOR UTILITY PURPOSES �O THE CITY OF NEWPORT
BEACH PER TRACT 5361. 1
�
e EASEMENT TO SOUTHERN CALIFORNIA, EDISON PER 7199/699, O.R.,
I I AND RE-RECORDED PER 7449/689, O.R. ,
I � I 111. - 1. 1-11.1- 1--.11-1 __
.1�11 I 0 EASEMENT FOR INGRESS & EGRESS FOR THE BENEFIT OF THE
. "PCH PARKING PARCEL " PER INSTR MENT NO. 93-0639213, O.R.
I
�,
� I
PROPOSED EASEMENTS � I
I
EASEMENT AREA WILL BE DESCR'13 D AS "PROPOSED EASEMENT
� 0 FOR NAVIGATIONAL ACCESS PURP SES" ON FINAL PARCEL MAP
''I 93-206. 1 1 1
1
1
1
1
(�) - @ EASEMENT AREAS WILL BE (DESCRIBED AS "PROPOSED
EASEMENTS FOR ACCESS AND kIVATE PIER PURPOSES" ON
FINAL PARCEL MAP 93-206. 1 . I
'
'
NOTE: THE,EASEMENT AREAS NOTED AS A THROUGH 0 COINCIDE WITH .
EXISTING LEGAL DOCUMENTATION FORITHE SANE PURPOSE. . �
a THERE WILL BE A RECIPROCAL INGRESS, EGRESS & PARKING
AGREEMENT RECORDED BY SEPARATE INSTRUMENT PRIOR TO
THE RECORDATION OF THE FINAL PARCEL MAP. . . I
� 11
I
NOTES I
I
I I
� .
1� I
1. I ASSESSOR'S PARCEL NUMBERS: .
1
050-451-01, 050-451-03, 0507451-010, 050-451-053 & 050-451-055
1
. �
,
� � I I
-
. ,
2. EXISTING USE: RESTAURANT, MARINA & ASSOCIATED
PARKING.
�
, I -
�
I
PROPOSED USE: � THERE WILL BE NO CHANGE IN USE.
I
I
.
3. 1 WITH THIS
SUBDIVISION, INCLUDING DRAINAGE, WATER & SANITARY
I SEWER FACILITIES. THERE IS NO PROPOSED TREE PLANTING OR .
� LANDSCAPING. I
I I
�
4. ALL BUILDINGS & IMPROVEMENTS ARE TO REMAIN. NO
GRADING IS PROPOSED.
� I 1
5. THE EASEMENT FOR INGRESS & EGRESS AS SHOWN ON TRACT
1, 5361 WILL NOT BE SHOWN ON FINAL PARCEL MAP 93-206 AND
1-1 -----------�--WILL--MIE-RED'i"13r-ADAT-(rL>Or-ILL'>.,---- - I � . -
I �
�
6. 1 THE- EASEMENT TO THE CITY OF NEWPORT BEACH FOR PUMPING �
�l
PLANT PURPOSES PER 867/440, 0 i R., WILL NOT BE SHOWN ON 1� �
I I FINAL PARCEL MAP 93-206 AND WILL THEREBY BE ABANDONED. �j
z I j, �
� ,
1 7. DATE OF AERIAL PHOTOGRAPHY: 10/13/93 ,;I �
I � !J_
8. THERE IS AN EXISTING RECIPROCAL EASEMENT AGREEMENT ILI.
r I
WHICH ACCOUNTS FOR MUTUAL ACCESS & PARKING FOR THE 1
,
PROPERTY �SHOWN HEREON. :,�i
.
,,�I.:
,��
.�
I 1 ;,4"
9. THE PROPERTY SHOWN HEREON LIES WITHIN FLOOD ZONE X & �`�-,-
� AE AS DEFINED BELOW ON FEDERAL EMERGENCY 11 � '-' I .-�,'
.,�
� MANAGEMENT AGENCY (FEMA) FLOOD INSURANCE RATE MAP f -
I ,!Nl,
NO. 06059CO055E, EFFECTIVE DATE: 9/15/89. ,�,�-`nl`
I "',
I i,N-,-��.l�
ZONE X: AREAS OF 500 -YEAR FLOOD; AREAS OF 100 -YEAR FLOOD h -.,,,`s . , I
,
- i.
WITH AVERAGE DEPTHS OF LESS THAN 1 FOOT OR WITH,"�,_.
DRAINAGE AREAS LESS THAN I SQUARE MILE; AND AREAS,-- A':,'-,,
PROTECTED BY LEVEES FROM 100 -YEAR FLOOD. lll�*�`,'�,�;;
I ,Tb�i',- �
I" """ '
"
' �
,
ZONE X: AREAS DETERMINED TO BE OUTSIDE 500 -YEAR FLOOD,'�"-,,�''.�F
,
,
I
I
PLAIN. I f"I", I
t"_,'� `,iel
.
'�',, �,'I,l I
,?.� -
I . P:, ��,,.��l
, �,
ZONE AE: BASE FLOOD ELEVATIONS DETERMINED. I ,;_ ,,, ,,, ;i
�
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_PARCEL AREA SUMMARY aj ��!'�,,��',;;',',
''I'.-- 11
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TOTAL 10.6 / 1.11 I - .7 � v" .
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[_
CD,
T � NlmAl IV' PARC L MAP NOm 93 06
1 1
.
�
�
IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA. I
BEING A DIVISION OF LOTS 213 & A OF TRACT 5361 IN THE CITY OF NEWPORT I
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE
MAP RECORDED IN BOOK 190,'PAGES 47 AND 48 OF MISCELLANEOUS MAPS,
TOGETHER WITH, PARCEL 4 OF PARCEL MAP 93-111 IN SAID CITY OF
NEWPORT BEACH RECORDED IN BOOK 298, PAGES 40 THROUGH 45 OF
PARCEL MAPS, TOGETHER WITH THAT PORTION OF BLOCK 54 OF IRVINE'S
SUBDIVISION IN SAID CITY OF NEWPORT BEACH RECORDED IN BOOK ly
� PAGE 88, OF MISCELLANEOUS RECORD MAPS, ALL IN THE OFFICE OF THE
.
COUNTY�l RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF
�
SECTIONS 26 & 27, TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO �
I
MERIDIAN. � � I I
�
�
� �
� I
!
WILLIAMSON & ..SCHMID, CONSULTING CIVIL ENGINEERS AND LAND� SURVEYORS
.
I
I
I
�
I
.00TOBER, 1993 JAMES F. GILLEN, L.S. 5557
.
I I
1 4 PARCELS 10.6 ACRES
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ESTERN !qAT!O!qAL PROPERTY MAKIArFMFNT- INC. PO BOX 6348 - ORANGE. CA 92667-6348
NO. COMPLEX NAME:
INVOICE DATE
INVOICE NO.
GROSS AMOUNT
DISCOUNT
NET AMOUNT
23- BALBOA MARINA
2/19/93
$280.00
***$280.00***
705
13
TRANSFER REQUIRED TO
kCCT.#728-85.
FEE
TO PROCESS
REVISION
OF THE BALBOA MARINA AS IT NDW
EXISTS.
rPnrP A T
DETACH AND RETAIN THIS STU. FOR IOUR RECORDS.