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HomeMy WebLinkAbout1 - Ford Loral Development AgreementTO: FROM: SUBJ: I CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM July 19, 1995 Mayor John Hedges Members of City Council Robert H. Burnham Agenda No. 1 /(4/5 1 %'f BY THE CITY COUNCIL �W CITY Of NEWPORT BEACH , Uli ? Q 1995 ee 9s -z7 c7m93-z(/0 7 Cl ye,�o C- 365 Ford Loral Development Agreement C17�'nl arpf,- # d) On June 26, 1995 the City Council approved modifications to, and reintroduced, the ordinance pursuant to which the Ford Loral Development Agreement would be adopted. The modifications approved by the City Council have been incorporated into the Development Agreement and can be summarized as follows: 1. 2. Public Health: The City Council retains the right to refuse to issue permits when necessary to avoid injury to public health and safety. Park In Lieu Fees: Ford Land will advance $500,000 in park fees within 60 days after the effective date. This advance will be credited toward, and satisfy, Ford's park in lieu fee requirement for the first 73 residential units and thereafter Ford will pay approximately $6,900 per unit. 3. Affordable Housing: Ford's affordable housing requirement is established at 150 of the total number of residential units constructed on the Property. Ford will satisfy its affordable housing requirements by participating in a Task Team which will identify, evaluate and hopefully implement one or more affordable housing projects. Ford is required to contribute up to $2.5 million to implement an affordable housing project identified by the Task Team. In the event the Task Team does not identify a suitable affordable housing project, Ford Land has the option of providing affordable units, paying an in lieu housing fee of $5,500 for each building permit, or a combination of fees and units. 4. Environmental Monitoring: Ford Land has agreed to pay for an environmental monitor to review all Ford Land submittals to agencies responsible for approving soil and groundwater contamination remediation plans. The monitor will evaluate raw data supporting remediation plans submitted to responsible agencies as well as comment on the analysis and the conclusions contained in the submittals. 5. Eastbluff Traffic: Ford Land has committed to fund all or a portion of the solution to the problem of traffic generated by the Project and other development east of Jamboree using residential streets in the Eastbluff community. Ford Land will pay all of the total costs of the capital improvements and traffic studies associated with the solution if the cost is $50,000 or less. Ford Land will pay 1/3 of the total cost of capital improvements/traffic studies with a minimum payment of $50,000 and a maximum payment of $75,000, if the solution costs more than $50,000. 6. Drainage: Ford Land will form a master community association, require the association to maintain on-site storm drain systems, ensure that residential structures have gutters and downspouts, and submit landscape plans which provide that water from downspouts will be transported to the street through an appropriate collection system. 7. Belcourt Terrace Screening: Ford Land will plant additional trees along that portion of its Property adjacent to Belcourt Terrace to screen new homes from existing residences along Hillsdale Drive. The details of the landscape screen and long term maintenance will be reviewed and approved at the tentative tract map stage. Recommendation: It is recommended the City Council adopt the ordinance approving the Ford Loral Deve;.opment Agreement (No. 8). xonert H. Burnham City Attorney RHB:gjb FordStff.rpt Recording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 FIRST AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH O PACIFIC BAY HOMES Original Agreement Approved July 24, 1995 Ordinance No. 95-27 Amendment Approved , 1996 Ordinance No. 96 - Submitted By: Paone Callahan McHolm & Winton 19100 Von Karman Avenue 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 062596.1058 / F31331 -M / 13714.22 FIRST AMENDED DEVELOPMENT AGREEMENT THIS FIRST Al11ENDED DEVELOPMENT AGREEMENT (the "Agreement") is entered imo between the City of Newport Beach (the "City"), and Pacific Bay Homes, a California corporation and a subsidiary of the Ford Motor Company. 1. RECITALS. This Agreement relates to the following: 1.1 Ori 'Final Agreement. On July 10, 1995, the City Council of the City approved the "Development Agreement between the City of Newport Beach and Ford 316tor Land Development Corporation" (the "Original Agreement"). The Original Agreement was recorded in the official records of the County of Orange on September 26, 1995. 1.2 Ownership Status. At the time of the Original Agreement, Ford Motor Land Development Corporation ("Ford Land") held an equitable interest in the property which is described in Exhibit A (the "Property "). Ford Land is a subsidiary of Ford Motor Company. In April 1996, The JM Development Company ("JM"), also a subsidiary of Fora acquired fee title to the Property. Since the acquisition, JM has changed its name to Pacij'ic Bay Homes. Pacific Bay Homes shall be referred to within this Agreement as "Ford. " 1.3 Planning Status. The City Council conducted public hearings on these matters and the Original Agreement and certified the EIR on July 10, 1995. The General Plan Amendment (see Section 2.22 below), the Original PC Text Amendments (see Section 2.29 below), the Tentative Map (see Section 2.34 below), and the Original Agreement were approved on July 10. 1995. Since the approval of the Original Agreement, site planning has continued for the Property. As a result of that planning, Ford has proposed certain changes to the Planned Community District Regulations (the "PC Text") which also will result in changes to the Tentative Map. In addition to the stated purposes of the Original Agreement, this Agreement intends to make those modifications to the Original Agreement x-hich will allow the development of the Property (the "Project") to proceed consistent w-ith approved modifications to the PC Text and the Tentative Map. 1.4 General F"IndinFs. By approving this Agreement, the City Council finds that the modifications to the PC Text and this Agreement, when implemented through subsequent entitlement procedures, such as the subdivision mapping process, are consistent with the intent of the City Council in approving the Original Agreement. 1.5 CEQA Compliance. On July 10, 1995, the City Council certified Environmental Impact Report No. 153 for the Project (the "EIR "). All significant environmental concerns for the 06259&1058 1 iii I-= / UM n proposed Project have been addressed in that previously certified Environmental Impact Report (SCA #94011022), and the City of Newport Beach intends to use that report for the Project under consideration, and there are no reasonable alternatives ormidgation measures that should be considered in conjunction with the Project 1.6 E fect of Original Agreement. This Agreement is rounded to modify the Original Agreement. The provisions of this Agreement which mod{fr the Original Agreement are the only provisions intended to be modified. The use of a single document called an "amended agreemen4 " rather than the use of a list of modifiications or amendments to be used in comparison to the Original Agreement, is intended to simpkfy future reference to this Agreement. The Effective Date of this Agreement remains the original Effective Date of the Original Agreement, August 23, 1995. The Approval Date remains July 10, 1995. 1.7 Effective Date of Modifications. The provisions of this Agreement which represent actual changes from the Original Agreement shall become effective on the effective date of the ordinance approving this Agreement. 1.8 Purpose of A ment. This Agreement restates the intent of the Original Agreement as follows: a. Provide for the orderly transition of the land use on a property commonly known as the "Loral Site" from commercial/industrial uses to less intense residential uses. b. Establish the parameters of building height, density. '.ocation, and timing to minimi , to the extent reasonably feasible, any significant adverse impacts of Ford's proposed residential development on the environment. C. Provide the City with greater certainty that the ':inject will be implemented as presently planned so that the City will receive & substantial economic benefits projected by the project's fiscal impact study. d. Provide public benefits to the City in excess of normal mitigation requirements in the form of (1) substantial financial assistance from Ford in resolving a long-standing traffic circulation issue in the Eastbluff commu=!ty, (2) financing by Ford of extraordinary environmental monitoring of site remediation, and (3) the provision of assurances by Ford with respect to the funding and. -'c: provision of affordable housing units within the City. 1.9 Authorization. This Agreement is authorized by, and is consistent with, the provisions of 65864 et seq. of the Government Code of the State of CaLfb nia, and Chapter 15.45 of the Newport Beach Municipal Code. 0625W108 / F3133I.OM / Im412 2 1.10 Interest of Ford. Ford is the legal owner of approximately 98.1 acres of real property located in the City and more particularly descnbed in Exhibit "A" (the "Property"). 1.11 Development of the Property. Subject to those conditions and mitigation measures identified in Environmental Impact Report No. 153 for Ford Land Newport (the "EIR") which were imposed by the City Council as conditions to approval of all or part of the Development Plan, this Agreement authorizes development on the Property consistent with the Development Plan. 1.12 Condition of Site. At the time of the Original Agreement, the Property was occupied by buildings constructed over the last thim years to house research, design, and industrial types of uses. Since the Approval Date and as part of the Development Plan, Ford has demolished the existing structures. Additionally, prior activities on the site have resulted in soil and groundwater contamination. Efforts to remediate these conditions, which would have been made by Ford with or without this Agreement, have moved substantially and positively forward since the Approval Date. 1.13 Project Benefits. While the landowner has the right to continue the presently permitted uses on the Property, existing circumstances present the City with the opportunity to establish, with the landowner's cooperation, new economically and environmentally viable uses on the Property. The proposed project presents a relatively unique opportunity to reduce the intensity of land uses occurring on the site. The EIR has demonstrated that the conversion of the existing research and development uses on the Property to residential uses will provide substantial benefits to the community through the improvement of environmental conditions related to traffic, air pollution, the potential for groundwater pollution, the consumption of non-renewable energy resources, and noise. Additionally, a review of the fiscal impacts of the proposed project indicates that the City will derive increased revenues from property and sales tax as a result of the proposed project. 1.14 Planning Commission&k Council Hearings: This Agreement. The Planning Commission, after giving appropriate notice, held public hearings to consider this Agreement and the newly prvposed PC Text amendments (see Section 2.29 below) on . 1996. The City Council conducted public hearings on the proposed PC Text amendments and this Agreement on . 1996. 1.15 Consistency. Like the Original Agreement, this Agreement is consistent with the various elements of the Newport Beach Genernal Plan, the Development Plan, and other applicable ordinances, plans, and policies of tye City. Also like the Original Agreement, this Agreement is also consistent with the purpose and intent of state and local laws authorizing development agreements in that it represents Ford's commitment to comprehensive planning, provides certainty in the approval of subsequent projects subject to compliance with conditions, reduces the economic cost= of development by providing assurance to Ford that it may proceed with projects in accordance with existing regulations, and provides assurance 06259&1= / F3M1-= / MUM to adjoining property owners that limits on the height of structures and amount of development as specified in the Development Plan. 1.16 Police Power. As it did with the Original Agreement, the City Council has determined that this Agreement is in the best interests of the health, safety and general welfare of the City, its residents and the public, was entered into pursuant to, and represents a valid exercise of, the City's police power, and has been approved in accordance with the provisions of state and local law that establish procedures for the approval of development agreements. 1.17 City Ordinance. On July 10, 1995, the City Council approved the Original Agreement and conducted the first reading of Ordinance No. 95-27 approving and authorizing the City to enter into the Original Agreement. On July 24, 1995, the City Council completed adoption of the Adopting Ordinance. The Adopting Ordinance became effective on August 23, 1995. On -'J1996, the City Council approved this Agreement and conducted the first reading of Ordinance No. 96-_ approving and authorizing the City to enter into this Agreement. On . 1996, the City Council completed adoption of this ordinance. 2. DEFINITIONS. 2.1 The "Adopting Ordinance" refers to City Ordinance No. 95-27 adopted by the City Council on July 24, 1995, authorizing the City to enter into this Agreement. 2.2 "Agreement" refers to this "First Amended Development Agreement Between the City of Newport Beach and Pacific Bay Homes. " The Agreement is also identified by the City as the City's Development Agreement No. 8. 2.3 "Annual Review" refers to the review of Ford's good faith compliance with this Agreement as set forth in Section 6. 2.4 The "Approval Date" means July 10, 1995, the date on which the City Council voted to approve the Original Agreement and the prior Development Plan. 2.5 All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEOA Guidelines" refers to the California Environmental Quality Act and the CEQA Guideline promulgated by the Secretary of Resources of the State of California. 2.7 "City" refers to the City of Newport Beach, California. 06259&1058 / F31 I-= / 15n4M 4 2.8 "Council" refers to the City Council of the City. 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Section 9. 2.10 A "day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 A "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "City Default" refers to a Default by the City, while a "Ford Default" refers to a default by Ford. 2.12 "Development Permit" means building permits, grading permits and other permits authorizing construction activity. 2.13 The "Development Plan" refers to (i) the General Plan (see Section 2.24), (ii) the PC Text (see Section 2.29), and (iii) the Tentative Map (see Section 2.33 below). 2.14 The "Effective Date" refers to the effective date of the Adopting Ordinance and is the effective date of this Agreement. The Effective Date is August 23, 1995. 2.15 The "EIR" refers to Environmental Impact Report No. 153 of the City of Newport Beach. 2.16 An "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 6.6 in the form of Exhibit "D". 2.17 An "Exhibit" refers to an exhibit to this Agreement. - All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are: Exhibit A: Legal Description of the Property Exhibit B: Map of the Property Exhibit C: List of Project Conditions Exhibit D: Estoppel Certificate 2.18 "Existing General Regulations" means those General Regulations approved by the City on or before the Approval Date (irrespective of their effective date) and not rescinded or superseded by City action taken on or before the Approval Date. 2.19 Financing District. "Financing District" for purposes of this Agreement means any assessment district, special district, community facilities district, maintenance district, or other similar district, legal entity, or mechanism formed pursuant to the provisions of legislation in effect at the time the Financing District is formed. The purpose of a Financing District is to finance the cost of public improvements, facilities, maintenance, or services. 0625W 1058 / F31331-002 / MUM 5 Examples include districts formed under the Municipal Improvement Acts of 1911 and 1913 and the Mello -Roos Community Facilities District Act of 1982. 2.20 "Ford" refers to Pacific Bay Homes, a subsidiary of Ford Motor Company. 2.21 "Future General Regulations" means those General Regulations (see Section 2.23 below) adopted by the City after the Approval Date. 2.22 The "General Plan Amendment" means GPA -93-2(A) amending the general plan of the City as approved by the City Council on July 10, 1995. 2.23 "General Regulations" means those ordinances, rules, regulations, policies, and guidelines of the City, which are generally applicable to the use of land and/or construction within the City and include, the Fair Share Trak Contribution Fee Ordinance, Uniform Building Codes and water and sewer connection and fee ordinances. 2.24 "General Plan" refers to the City's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the City on or before the Approval Date as part of the Development Plan. "General Plan" also shall include any general plan amendments affecting the Property or the Project which are adopted by the City and consented to, in writing, by Ford. 2.25 "Includes" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.26 "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale-leaseback agreement, or other transaction under which all or a portion of the Property, including those portions acquired by assignees, is used as security (a "Mortgage") or the owner of any interest in all or any portion of the Property under a Mortgage, including those portions acquired by assignees. 2.27 "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28 The "Original Agreement" refers to the Development Agreement for the Project which was approved on July 10, 1995, and recorded on September 26, 1995. This Agreement modifies the Original Agreement. 2.29 The "Original PC Text Amendment" refers only to the "Aeronutronic Ford Planned Community District Regulation" as amended by the City Council on July 10, 1995. 2.30 The "Parties" refers to the City and Ford and a "Party" shall refer to either of the Parties. oW-s9&1aaa i F3W 1-0M i UMM 6 2.31 The "PC Text" refers to the "Aeronutronic Ford Planned Community District Regulation" as amended by the City Council on July 10, 1995, with the approval of Amendment No. 800, and all subsequent modifications of the PC Text which are approved by the City Council and Fond. 2.32 "Planning Commission" refers to the Planning Commission of the City. 2.33 The "Project" refers to the proposed development of the Property pursuant to the Development Plan and this Agreement. 2.34 The o " refers to the real property described on Exhibit "A" and depicted on Exhibit "B. " 2.35 The "Tentative Map" refers to the tentative tract map for Tract No. 14925 approved by the City Council on July 10, 1995, and any subdivision mapapproved by the City Council after the Approval Date which substantially conforms with the PC Text at the time of the map's approval If a subsequent subdivision map (or maps) replaces or supersedes TTM No. 14925, the new map(s) shall be considered the Tentative Map which is included within the Development Plan. 3. CONDITIONS TO DEVELOPMENT. 3.1 Introduction. The provisions of this Section express the intent of the Parties regarding the extent to which this Agreement vests Ford's right to proceed with the development described in the Development Plan. Ford acknowledges that its right to proceed with development described in the Development Plan is subject to numerous conditions including the following: (a) The specific limitations and restrictions contained in the Development Plan; (b) Conditions and mitigation measures imposed by the City Council to mitigate significant effects identified in the EIR; (c) Conditions imposed by the City as a result of subsequent or supplement environmental analysis pursuant to provisions of CEQA and the CEQA Guidelines; (d) Compliance with the terms and conditions specified in this Agreement; and (e) Compliance with the Existing General Regulations. 3.2 Compliance with Development Plan Conditions/Mitigation Measures. Ford acknowledges that City Council approval of the Development Plan and this Agreement was subject to compliance with numerous conditions and mitigation measures designed to minimize or 062596105E / F31331-002 / 13774.22 7 eliminate the significant adverse effects of the Project and insure the health, safety, and welfare of nearby residents as well as residents of the proposed project. Pursuant to CEQA, many of these conditions and mitigation measures impose specific development standards and requirements to be implemented in conjunction with further study and analysis of site or subsurface conditions before certain specified development activity. In certain instances, these mitigation measures may exceed those which might otherwise be appropriate under "nexus" and "rough proportionality" tests. By entering into this Agreement, Ford agrees to be bound by and waives any protest any such project conditions. The conditions and mitigation measures adopted by the City Council are set forth in Exhibit C. 3.3 Compliance with General Reg ilatiorL. Ford is required to comply with the Existing General Regulations. As to those Existing General Regulations which require the payment of fees, costs, and expenses, for a development application, the applicable fee, cost, or expense shall be that in effect on the date such an application is determined by the City to be complete. Ford shall also comply with any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan. Ford shall also comply with all provisions of the Uniform Building Code, whether adopted before or after the Approval Date, which are in effect at the time applications for specific development permits are submitted. 3.4 Water Capital Improvement Charges. Section 14.33.040 of the City's Municipal Code provides for the payment of a "water capital improvement charge" for lands designated pursuant to Section 14.33.030 of the Municipal Code. Section 14.33.040 of the Municipal Code relates only to system facilities that will be needed to serve an "undeveloped area., Because the Project consists of replacement of an existing use on a previously developed site which can be adequately served from existing City water facilities, Ford shall not be required to pay water capital improvement fees to the City. 3.5 Public Health and Safety/Uniform Codes. This Agreement shall not prevent the City from either (i) adopting Future General Regulations (including uniform codes which are based on recommendations of a multi -state professional organization and become applicable throughout City, such as, but not limited to, the Uniform Building Code, Uniform Electrical Code, Uniform Mechanical Code or Uniform Fire Code) or (ii) imposing conditions inconsistent with the Development Plan on future discretionary approvals, where such actions directly result from findings by the City that those actions are necessary to avoid consequences which are injurious or detrimental to the public health and safety. This reservation of authority is subject to the following: a. City shall neither (i) refuse to issue or approve any application or permit nor (ii) apply to the Project or the Property any conditions or Future General Regulations if such action would prevent, preclude, delay, alter, or in any way affect (in a manner not satisfactory to Owner) the implementation of all or any portion of the Development 0625961058 / F31331 -OM / 15774-22 8 Plan until the City Council makes a funding that such action is the only reasonably necessary means to correct or avoid such injurious or detrimental condition. b. Any such action taken pursuant to this Section shall apply only to the extent and for the duration necessary to correct or avoid such injurious or detrimental condition. 3.6 Environmental Remediation Certain portion(s) of the Property will require environmental remediation before occupancy. Subject to all other provisions of this Agreement, occupancy permits shall be issued by the City for those portions of the Property if Ford has complied with Mitigation Measures 4, 5, and 6 set forth in Section 3.10 (Public Health and Safety) of the EIR. 4. BENEFITS TO FORD, 4.1 Right to Develop. During the term of this Agreement and subject to the provisions of Sections 3 and 5, Ford shall have a vested right to develop and receive occupancy permits for construction on the Property to the full extent permitted by the Development Plan, including grading of the site as contemplated by the elevations shown on the Tentative Map, subject to: (a) compliance with CEQA, (b) the terms and conditions of this Agreement, (c) the City's grading ordinance in effect on the Approval Date, and (d) compliance with conditions imposed on any subdivision map submitted by Ford subsequent to the Effective Date, provided that the City may only impose subdivision map conditions which are (i) necessary to mitigate any significant adverse impact not identified in the EER, (ii) necessary to ensure compliance with the subdivision design and improvement standards of the City in effect on the Approval Date, or (iii) necessary to make the findings required by the Subdivision Map Act. Subject to the provisions of this subsection and Sections 3 and 5, City shall only take action which complies with and is consistent with the Development Plan and this Agreement unless Ford otherwise consents in writing. City shall not impose any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of land, or any other type of exaction) on the Project, except as expressly permitted by this Agreement or required (as opposed to permitted) by state or federal law. 4.2 Conflicting Measures. Except as expressly provided in this Agreement, no initiative measure, moratorium, referendum (except as provided in Government Code Section 65857.5), ordinance, statute or other provision of law which in any way limits or restricts development of the Property to the full extent permitted by the Development Plan and this Agreement (including density, intensity, timing, phasing, and sequencing) shall be applied to the Properly during the term of this Agreement. 4.3 Reservations or Dedications of Land. Except as expressly provided in this Agreement, no dedications or reservations of the Property shall be required of Ford in conjunction with the application or issuance of any permit authorizing development, constriction, use, or operation of the Property. 062596105E 1 F31331 -OM 1157M.22 Z 4.4 TCA Credit. As a result of the reduction in traffic impacts generated by converting the Project site to less intense uses than presently exist, the Transportation Corridor Agencies (the "TCA") have acknowledged a credit to Ford in the amount of $3,436,966 in relation to the construction of the San Joaquin Hills Transportation Corridor. This credit shall be applied toward any Project fees otherwise payable to the City, the Transportation Corridor Agencies, or any other agency in connection with the construction of the San Joaquin Hills Transportation Corridor or any other transportation corridor for which fees are imposed upon development. If (i) this credit is larger than the Project's corridor fee obligation and (ii) Ford and the TCA enter into an agreement to allow Ford to sell or transfer any credits in excess of the Projects fee obligation, then the City shall not object to the sale or transfer of the credits on the terms set forth in that Ford/TCA agreement. 4.5 Fair Share Ordinance. As a result of the reduction in traffic impacts generated by the Project and the traffic improvements included within the Project, no fees shall be payable for the Project under the City's "Fair Share" Trak Ordinance. 4.6 Sewer Connection. The City shall provide sewer service to the Project through a connection to existing City sewer Iines serving the adjacent Belcourt communities and the existing Loral site. City shall provide sewer facilities only to the boundaries of the Project and Ford shall pay any sewer connection or sewer service fees required by the Existing General Regulations. 4.7 Storm Drains. The City shall provide drainage capacity to the Project by allowing connection to existing City storm drains. 4.8 Park Fees. The Project shall comply with all City park requirements through the payment of park fees in the amount of $6,897.37 per residential unit. Ford shall advance Five Hundred Thousand Dollars ($500,000) in park fees to the City within sixty days after the Effective Date. The fees paid in advance shall be credited toward and satisfy park fees for the first seventy-three residential building permits issued for the Project. Thereafter, Ford shall pay $6897.37 per residential unit until all park fees required by this Agreement have been paid. These payments shall satisfy the City's Park Dedication Ordinance. No dedications or reservations of land except as expressly identified in the Development Plan shall be required of the Project. 4.9 Time for Construction and Completion of Project. Subject to the provisions of this Agreement and the Development Plan, Ford shall have the right to decide the timing, phasing, and sequencing of construction on the Property and shall be entitled to apply for, and receive timely approval of permits or approvals, at any time. 4.10 Extension of Tentative Man. To the extent permitted by law, the City shall extend through the term of this Agreement (pursuant to Government Code Section 66452.6) the Tentative 06259610581 F31331 -OM / is"n4.22 10 Map (see Section 2.33 above) and all tentative subdivision maps applied for by Ford approved by the City in the future. 4.11 Phased Final Maps. As many as forty phased final comps may be filed for each tentative tract map approved for the Project. 4.12 Development Standards. Because this Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the City's development standards for other areas of the City is neither necessary nor appropriate. Therefore, as to this Project, the provisions of the Development Plan and this Agreement shag prevail over any conflicting provision of any other City ordinance or resolution. 4.13 Fees. Taxes. and Assessments. The City shall not impose any additional fee, tax, or assessment on all or any portion of the Project or &-e Property, whether as a condition to a Future General Regulation or otherwise, except such fees, taxes, and assessments as are described in or required by this Agreement. Ford shall be responsible only for those fees, taxes, and assessments which presently are applicable to the Property under the General Regulations in effect on the Approval Date. Except as set forth in Section 4.8 above, the rates of such fees, taxes, and assessments shall be the rates in existence at the time said fees, taxes, and assessments are normally required to be paid to the City. 5. PUBLIC BENEFITS. 5.1 Reduced Impacts. This Agreement confers a substantial public benefit by converting an existing commercial/industrial use to a less intense :rsidential use. The EIR for the Project has established specific improvement in environmenLA conditions related to reduced potential for impacts arising from traffic, air pollution, the consumption of non-renewable energy resources, the potential for groundwater pollution,.ad noise. 5.2 Fiscal Benefits. The project's Fiscal Impact Report projects that, at maximum Project buildout, the City will receive net recurring revenues of approximately $571,700 per year in constant 1995 dollars. The recurring surplus is based on projected annual Project revenues of $963,600 and projected annual costs of $391,000. 5.3 Affordable Housing. The City's Housing Element presently sets forth goals and strategies for providing housing units for very low, low, and moderate income housing ("Affordable Units"). The Housing Element requires residential developers to provide affordable units, either on-site or off-site, with the number of units coc ingent upon numerous factors including the presence or absence of development incentives. the extent of any financial contribution to the development by public entities, and the overal1 feasibility of providing affordable housing given the unique characteristics of the p%ct. The Housing Element specifically 0623961058 / B1331 -OM / 1M4M 11 encourages the use of development agreement and expedited permitting to encourage the construction and occupancy of affordable housing projects. The City and Ford agree that this development presents a unique opportunity, possibly in combination with a Development Agreement between the City and one or more other developers, to construct affordable housing on vacant sites within the City using a unique public/private planning and financing process outlined in this Section_ a. Affordable Housing Percentage, The Housing Element requires projects such as this to provide, to the extent feasible, units affordable to moderate income families and individuals equal in number to between 15% and 25% of the market rates units produced by the project These units are to be provided for a minimum of twenty years. The City and Ford agree that the cost and delay attendant to environmental remediation of the Property, Ford's agreement to advance park fees, and the other public benefits provided by Ford under this Agreement make infeasible the production of affordable housing in excess of 15% of the total number of residential units constructed pursuant to the Development Plan. b. Task Team Participation / In Lieu Fees The Original Agreement contained a requirement for Ford to satisfy its affordable housing requirements by participating in a "Task Team" to be established by resolution of the City Council to identify, evaluate, and implement one or more affordable housing projects to implement Ford's affordable housing obligations under this Section. Since the Approval Date, Ford has actively participated in the Task Team, which is implementing its original goals as set forth in the Original Agreement. The requirement contained in the Original Agreement remains in place and reads as follows: "b. Task Team Participation / In Lieu Fees. Ford shall satisfy its affordable housing requirements by participating in a "Task Team" to be established by resolution of the City Council to identify, evaluate, and implement one or more affordable housing projects to implement Ford 's affordable housing obligations under this Section. The Task Team shall consist, at a minimum, of a member of the City Council, a representative of Ford , and members of the City staff. The City Council also may appoint to the Task Team representatives of other property owners, builders, or persons experienced in the development of affordable housing. Ford shall make available to the Task Team its experience and expertise in land development upon reasonable request by the Task Team. The Task Team shall submit to the City Council a statement of goals and priorities within ninety days after the later of (i) the Effective Date or (ii) the appointment of the Task Team by the City Council. The Task Team shall have a single term of two years, unless extended by mutual agreement of the City and Ford. The Task Team shall report to the City Council no less than 0625961459 / F31.13I4M ! Lri MM 12 once every ninety days after submittal of its statement of goals and priorities. The goal of the Task Team shall be to submit to the City Council, within two years after the Effective Date, a report identifying one or more affordable housing projects to be funded in whole or in part by Ford. If a project is identified and implemented, Ford shall contribute $2,500,000 (less $5,000 for each of the 500 units allowed by the Development Plan which Ford agrees, in writing, not to build) toward the implementation of that project. Subject to Ford's ongoing participation in Task Team implementation efforts, payment of this sum will satisfy Ford's affordable housing obligations. "c. Option If No Task Team Project. If either (i) the City Council does not require Ford to financially contribute to implementation of a Task Team project as described in Subparagraph b above or (ii) the Task Team does not recommend implementation of an affordable housing project to satisfy Ford's affordable housing requirement, then Ford shall have the option, within sixty days after the term of the Task Team expires, to satisfy that requirement by notifying the City that it will either. construct or rehabilitate offsite residential units within the City and make those units affordable to moderate income families or individuals for 20 years or more from the date of occupancy; or ii. pay an affordable housing in lieu fee of $5,500 for each residential building permit issued within the Project; or iii. construct fewer than the number of affordable units required under Subsection c(i) above and pay an affordable housing in lieu fee equal to: $5,500 for every residential building permit issued for the Project minus $36,000 multiplied by the number of affordable units constructed and/or refurbished by Ford. Under this option, Ford's affordable housing in lieu fee shall not be less than twenty percent of its total financial commitment." 5.4 Environmental Monitoring. Due to existing soil and groundwater contamination on the Project site, before residential occupancy can occur on the site, Ford is required by law, as 0625%-1059 / F3133I.OM / 15974.n 13 well as by the City's conditions and mitigation measures for the Project, to obtain approvals from other public agencies, such as the Regional Water Quality Control Board and the Orange County Health Care Agency ("County Health"). By this Agreement. Ford also will pay for the cost of an environmental monitor to be retained by the City to review all Ford submittals to those agencies. Ford shall provide the monitor with copies of all submittals concurrently with their delivery to those agencies. Additionally, if requested by the monitor, Ford shall provide to the City the underlying data which supports Ford's request to County Health for a Health Risk Assessment of the Project site. The City may have either the monitor or another consultant review and independently verify the accuracy and validity of the Health Risk Assessment and analysis and conclusions and correspond, if needed, to County Health before its final action. The monitor shall not perform any independent collection of data. The monitor performing this function may be the same or may be different than the monitor performing the general overview described in the first paragraph above. In performing either function, the monitor may report his or her findings to the City Council and the City Council, in turn, may take any action it deems appropriate which is not inconsistent with this Agreement. The selection of the monitor and the data consultant and their scope of work shall be subject to the mutual approval of the City and Ford. Any inconsistency between this provision and any mitigation measure for the Project shall be resolved in favor of the mitigation measure. 5.5 Eastbluff Traffic. The Eastbluff community in the vicinity of the Project site has had a historical concern regarding the impact of through traffic on its streets. The EiR has concluded that the Project will not contribute sufficient through traffic to constitute a significant impact on this existing problem. Further, Ford has no legal obligation to correct the existing problem and the City has no authority independent of this Agreement to impose a condition requiring Ford to correct the existing problem. Pursuant to this Agreement, however, Ford shall contribute to the solution to the existing traffic problem as follows: a. The determination of a solution shall be dependent upon an agreement between the Eastbluff community and the City. b. If the "solution" costs $50,000 or less: Ford will pay one -hundred percent of the total cost of the capital improvements/traffic studies (as opposed to long-term maintenance) of the solution as actually implemented; or If the "solution" costs more than $50,000: o6?.59&IOSa / F3Ml- 01 i lsmM 14 i. Ford will pay one-third of the total cost of the capital improvements/traffic studies as actually implemented, with a minimum payment of $50,000 and a maximum payment of $75,000. C. Ford will not be required to make a deposit of funds until a "solution" actually is approved by the City for implementation. Any funds actually deposited but not used to implement the solution shall be returned to Ford. d. If the City and the Eastbluff community have not agreed on a "solution" within one year from the Effective Date and the date for agreement has not been extended by Ford, this obligation shall terminate. e. If a lawsuit is brought by any person or entity challenging any of the Ford approvals on the basis of the Eastbluff traffic conditions and that lawsuit is not terminated within thirty days after service, the provision requiring Ford's contribution to the traffic solution will terminate. 5.6 Drainage. Concerns have been expressed in the public process regarding the impacts of the Project's drainage on nearby residential communities. The EIR has established that the Project will not have any significant drainage impacts on any other residential communities. Nonetheless, pursuant to this Agreement Ford will take the following actions: a. Upon formation of the Master Community Association, the conditions, covenants, and restrictions will provide that: i. All structures shall have gutters and downspouts; H. The Master Association shall routinely maintain the onsite storm drain system to facilitate proper operation of the system; and iii. The submittal of landscape plans for each individual lot shall provide that water from downspouts will be transported to the street through an appropriate collection system. b. The Project site will be graded so that surface drainage will flow to the streets where it will be collected and channeled into a closed storm drain system. 5.7 Belcourt Terrace Landscape Screen.,This Agreement as originally recorded on September 26, 1995, contained a Section 5.7 which imposed certain obligations upon Ford with respect to the establishment of a landscape screen along the boundary of the Property and the Belcourt Terrace project adjacent to the Hillsdale Drive boundary wall Since the recording of the Agreement, that condition has been satisfied by the signing of a Landscape Screening 06259&103 i F31331 -M i WMM 15 Agreement between Form and the Beleourt Terrace Homeowners Association (the "Association n). M 6. ANNUAL REVIEW. 6.1 City and Ford Responsibilities. At least every twelve (12) months during the Term, the City shall review Ford's good faith substantial compliance with this Agreement (the 'Annual Review"). After the Annual Review, the City's finding of good faith compliance by Ford shall be conclusive for the purposes of future Annual Reviews or legal action between the Parties. Either Party may address any requirements of the Agreement during the Annual Review. However, fifteen (15) days' written Notice of any requirement to be addressed shall be made by the requesting Party. If, at the time of the review, an issue not previously identified in writing is required to be addressed, the review shall be continued for no more than sixty days at the request of either Party to afford sufficient time for analysis and preparation of a response. 6.2 Opportunity to be Heard. Ford shall be permitted an opportunity to be heard orally and in writing at any noticed public hearing or meeting related to the Annual Review. 6.3 Information to be Provided to Ford. The City shall mail to Ford a copy of the staff report and related exhibits concerning Agreement performance a minimum of fifteen (15) days before the Annual Review. 6.4 Mitigation Monitoring. The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures contained within the mitigation monitoring plan. Ford shall be found in compliance with this Agreement unless the City Council determines, based upon the evidence presented at the Annual Review, that Ford has not complied with one or more mitigation measures or conditions including those imposed as a result of subsequent environmental analysis, applicable to the grading of, and building on, the Property as of the date of the Annual Review. 6.5 Review Letter. a. After Finding of Compliance. If Ford is found to be in compliance with the Agreement after the Annual Review, the City shall issue, within ten (10) days of Ford's written request, a letter to Ford stating that the Agreement remains in effect and Ford is not in Default. b. After Cure of Default. If Ford is found to be in Default under this Agreement at the Annual Review, but subsequently cures that default in the manner provided by this Agreement, the City shall issue, within ten (10) days of Ford's written request, a letter to Ford stating that the Agreement remains in effect and Ford is not in Default. 0615961058 / F31331 X02 / 15r4.M 16 6.6 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature and amount of any Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The Planning Director may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on by assignees and Mortgagees. The Estoppel Certificate shall be substantially in the same form as Exhibit "D." 6.7 Failure to Conduct Annual Review. The City's failure to conduct an Annual Review shall not constitute or be asserted by the City as Ford's Default. 7. GENERAL PROVISIONS. 7.1 Effective Date. This Agreement and the obligations of the Parties shall be effective as of the Effective Date. However, this Agreement shall bind the Parties as of the Approval Date, subject only to the Adopting Ordinance becoming effective pursuant to California law. 7.2 Term of Agreement. The term of this Agreement (the "Term") shall begin on the Effective Date and continue for twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement. 7.3 Assignment. Ford has the absolute right to assign (see Section 2.5) its rights and/or delegate its obligations under this Agreement as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as Ford owns any part of the Property, Ford may assign the benefits of this Agreement without delegating the obligations for the portion of the PropeM, assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by Ford of the corresponding obligations. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the assignee. If an assignee is in Default, then as to Ford or any assignees not in Default, the Default shall not constitute their Default, give 062596.10581 F31331 -0M / LM4M 17 grounds for termination of their rights under this Agreement or be a basis for an enforcement action against them. Under no circumstances, shall Ford be relieved of its obligations under Sections 5.3, 5.4, 5.5, and 5.6. 7.4 Amendment of Agreement. (a) Subject to the provisions of Subsection (b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) The City Council shall not approve, and Ford shall not request, any amendment to the provisions of the Development Plan or this Agreement that would increase the maximum permitted gross floor area or the maximum permitted building height above that established as of the Effective Date of this Agreement. This Subsection shall prevail over any conflicting ordinance, resolution, policy or plan adopted by the City Council. 7.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns. 7.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the twenty-five (25) year term; (b) Completion of the Project in accordance with the Development Plan and the City's issuance of all occupancy permits necessary to fully implement the Project, the acceptance of all dedications required by this Agrftment. and the satisfaction by Ford of its obligations under Sections 5.3, 5.4, 5.5, and 5.6 above. (c) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the City to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part of the Project; or, (d) The effective date of a Party's election to terminate the Agreement as provided in Section 9.3 of this Agreement. 062596-1053 / F31331 -M / ism -22 18 8. CONFLICTS OF LAW. 8.1 Conflict with State and Federal Laws and Regulations. Where state or federal laws or regulations prevent compliance with one or more provisions of this Agreement, those provisions shall be modified, through revision or suspension, to the extent necessary to comply with such state or federal laws or regulations and the modified Agreement shall remain in effect, subject to the following: (a) the City shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding that such modification is required (as opposed to permitted) by state and federal laws or regulations; (b) the modifications must be limited to those required (as opposed to permitted) by the state or federal laws; (c) the modified Agreement must be consistent with the state or federal laws or regulations required modification or suspension; (d) the intended material benefits of this Agreement must still be received by each of the Parties after modification; (e) neither the modification nor any applicable local, state, or federal laws or regulations, may render the modified Agreement impractical to enforce; and (f) Ford consents in writing to the modification. Ford shall have the right to seek judicial review of any proposed modification to ensure compliance with this Section. 9. DEFAULT, REMEDIES AND TE& IINATTON. 9.1 General Provisions. In the event of a Default (see Section 2.11), the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then a Default shall be deemed not to exist. 9.2 Option to Institute Legal Proceedings or to Terminate. If an alleged Default is not cured within the Cure Period, the noticing Party must give the defaulting Party a Notice of intent to terminate the Agreement if that Parry intends to terminate the Agreement. Within thirty 0625%-1058 / F31331 -OM / 15774.22 19 (30) days after giving of the Notice, the City Council shall hold a public hearing in the manner set forth in Government Code Sections 65865,65867, and 65868, as amended, to consider and review the matter. This hearing shall utilise the procedures outlined for the Annual Review in Section 6 above. 9.3 Notice of Termination. After the City Council hearing described in Section 9.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party and the Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and clear and convincing evidence was presented to the City Council to establish the continued existence of a Default after the Cure Period. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 11. 17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 9.4 Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 9.5 Default by Ford. Subject to and after termination of this Agreement in compliance with Sections 9.1 through 9.3, if Ford Defaults, the City shall have no obligation to perform any of City's obligations under this Agreement (as opposed to the City's obligations under the Development Plan and the General Regulations), unless otherwise ordered by a court of law. The City's election not to perform as permitted by this provision shall not constitute a Default. 9.6 Default by the City. Subject to and after termination of this Agreement in compliance with Sections 9.1 through 9.3, if the City Defaults, Ford shall have no obligation to perform any of Ford's obligations under this Agreement, unless otherwise ordered by a court of law. Ford's election not to perform as permitted by this pro%ision shall not constitute a Default. 9.7 Specific Performance. The Parties agree that the loss by either of them of their respective rights under this Agreement may not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and/or injunctive relief. This provision applies only to actions related to the Parties' performance under this Agre`ment and does not limit the remedies of either Party under any other provision of law. 06259&::68 / F31331 -CM / 15TM-n 20 10. ENCLAIRRANCES AND RELEASES ON PROPERTY. 10.1 Discretion to Encumber. Ford may encumber all or any portion of the Property in any manner. The City acknowledges that lenders providing financing may require technical modifications to the Agreement which do not materially alter the intent of the Parties. The City agrees to meet, upon request, with Ford and/or lenders to negotiate in good faith any lender request for modification. The City agrees to not withhold unreasonably its consent to such modification, provided the proposed modification does not materially alter the terms and provisions of this Agreement, the obligations imposed upon either Party, or the benefits received by either Party. 10.2 Entitlement to Written Notice of Default. Any Mortgagee and its successors and assigns, upon written request to the City, shall be entitled to receive from the City written Notice of any Ford Default at the same time Ford is provided with Notice. pursuant to Section 6.1. 11. 'MISCELLANEOUS PROVISIONS. 11.1 Notices. All Notices (see Section 2.27) shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt; and Notices shall be addressed as follows: To the City: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Attorney Attention: Planning Director To Ford : Pacific Bay Homes Attn: Karin T. Krogius 18400 Von Karman, Suite 900 Irvine, California 92715 0625961058 t F3MI.OM / 15770.22 21 With a copy to: Tun Paone Paone, Callahan, McHolm & Winton 19100 Von Karman, 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 The addresses to which Notices shall be sent may be changed by giving Notice of a new address. 11.2 Enforced Delay: Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non-performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities, suspension of rights in accordance with the existence of unforeseen circumstances, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon. 11.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the original intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the original intent of the Parties and the Party substantially benefitted by the material provision does not waive its rights under the unenforceable provision, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Section 4 and 5 are deemed "material." 11.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. This Agreement supersedes all negotiations and previous agreements between the Parties regarding that subject matter. 11.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 11.6 Incorporation of Recitals. The Recitals set forth in Section 1 are part of this Agreement. 11.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 0625WI058 / F31331 -M / 1577 = 22 11.8 Covenant of Cooperation. The City shall help Ford obtain any permits from either the City or other public agencies which may be required for development of the Project or as a result of any modifications, suspensions, or alternate courses of action allowed by this Agreement. Ford may challenge any such ordinance, measure, moratorium, or other limitation in a court of law if it becomes necessary to protect the development rights vested in the Property pursuant to this Agreement. 11.9 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 11.10 Successors and Assigns. Subject to Section 7.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in -interest and assigns of the Parties. 11.11 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the paragraphs and subparagraphs are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement shall be governed by the laws of the State of California. This Agreement is not intended to impermissibly contract away the legislative and governmental functions of the City, and in particular, the City's police powers or to surrender or abrogate the City's governmental powers over the Property. 11.12 Authority to Execute. The person executing this Agreement on behalf of Ford warrants and represents that he/she has the authority to do so and the authority to bind Ford to the performance of Ford's obligations under this Agreement. 11.13 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not unreasonably be withheld. 11.14 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 11.15 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the City and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement is deemed a ministerial act and the failure of the City to record the Agreement as required by this Section and Government Code Section 65868.5 does not make the Agreement void or ineffective. 11.16 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this 062596106E / F31331.OM / 15TMM 23 Agreement, to enjoin any threatened or attempted violation of this Agreement, to recover damages for any Default, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. 11.17 Attorneys' Fees. In any arbitration, quasi-judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 11.18 No Third Party Beneficiaries There are no third party beneficiaries to this Agreement or to any provision of this Agreement, including the public benefit provisions of Section S. Date: , 1996 CITY OF NEWPORT BEACH Mayor Date: , 1996 PACIFIC BAY HOMES Liz 062596-1058 / F31331-002 / 13771.22 24