HomeMy WebLinkAbout92-4 - Approving a Development Agreement Between the City of Newport Beach and Hoag Memorial Hospital Presbyterian (Development Agreement No. 5)ORDINANCE NO. 92 -4
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND HOAG
MEMORIAL HOSPITAL PRESBYTERIAN
(DEVELOPMENT AGREEMENT NO. 5)
• The City Council of the City of Newport Beach DOES ORDAIN as follows:
SECTION 1. The City Council finds and declares that:
a. The State Legislature and the City Council have determined that the lack
of certainty in the approval of development projects can result in a waste of resources,
escalate the cost of housing and other development to the consumer, and discourage
investment in and commitment to comprehensive planning which would make maximum
efficient utilization of resources at the least economic cost to the public; and
b. Assurance that an applicant may proceed with a project in accordance with
existing policies, rules and regulations, and subject to conditions of approval, will strengthen
• the public planning process, encourage private participation in comprehensive planning, and
reduce the economic costs of development; and
c. California Government Code Section 65864 et seq. authorizes cities to
enter into development agreements with any person having a legal or equitable interest in
real property for the development of the property; and
d. Chapter 15.45 of the Newport Beach Municipal Code provides
requirements and procedures for the adoption of development agreements; and
e. Development Agreement No. 5 has been prepared in compliance with state
law and the Newport Beach Municipal Code; and
f. In compliance with state law and city ordinance, duly noticed public
hearings were held by the Planning Commission and the City Council to consider
Development Agreement No. 5; and
g. The City Council finds that said Development Agreement is in compliance
with the California Environmental Quality Act and Guidelines promulgated thereunder; and
h. The City Council finds that said Development Agreement is in
conformance with the Newport Beach General Plan.
SECTION 2. Pursuant to Chapter 15.45 of the Newport Beach Municipal Code
establishing procedures and requirements for the consideration of development agreements,
Development Agreement No. 5 for Hoag Memorial Hospital Presbyterian, attached hereto
as Exhibit "A ", is hereby approved.
• SECTION 3. Copies of said Development Agreement are on file in the offices of
•
the City Clerk and Planning Department of the City of Newport Beach and said
Development Agreement is made a part hereof by this reference.
SECTION 4. This Ordinance shall be published once in the official newspaper of
the City, and the same shall be effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach held on the 11th day of May 1992, and was adopted on
the 26th day of May 1992, by the following vote, to wit:
ATTEST
Eff�=-Z-
Attachment
AYES, COUNCIL MEMBERS HEDGES,
TURNER, SANSONE, HART, COX, PLUKxIER
NOES, COUNCIL MEMBERS WATT
ABSENT COUNCIL MEMBERS NONE
MAYOR
Exhibit "A": Development Agreement No. 5 for Hoag Memorial Hospital Presbyterian
PLT:.. \CC\AMD \DA5.ORD
Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92659 -1768
•
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
AND
HOAG MEMORIAL HOSPITAL PRESBYT
Approved
Ordinance No.
•
Aak
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement ") is entered into between the
City of Newport Beach (the "City "), and Hoag Memorial Hospital Presbyterian
( "Hoag ").
1. RECITALS. This Agreement relates to the following:
• 1.1 Purpose of Agreement. This Agreement is intended to:
(a) Enable Hoag to adapt to the ever changing health care
needs of those residents within its service area by
authorizing construction of new or additional
facilities in a manner that will allow Hoag to respond
to rapid changes in medical and health care technology
and delivery systems.
(b) Establish strict, binding limits on the amount and
height of permitted development as well as ensure
compliance with numerous conditions on the density,
location, and timing of construction to minimize, to
the extent feasible, any environmental impacts of
Hoag's proposed expansion.
(c) Impose exactions such as dedication of property,
construction of public improvements and /or the
installation of landscaping visible to the public,
which, when considered in conjunction with the public
services provided by Hoag, benefit the general public.
1.2 Authorization. This Agreement is authorized by, and is
. consistent with, the provisions of 65864 et seq. of the
Government Code of the State of California, and Chapter 15.45
of the Newport Beach Municipal Code.
1.3 Interest of Hoag. Hoag is the legal and /or equitable owner of
approximately forty (40) acres of real property located in the
City and more particularly described in Exhibit "A" and
depicted in Exhibit "B" (the "Property ").
1.4 Development of the Property. This Agreement authorizes
development on the Property consistent with the Hoag Memorial
Hospital Presbyterian Master Plan and Planned Community
Development Plan ( "Master Plan ", a copy of which is attached to
this Agreement as Exhibit "C" and incorporated by reference
when appropriate), subject to the conditions and mitigation
measures identified in Environmental Impact Report No. 142 and
kr \hoagda.fnl
5 -20 -92
Alak
imposed by the City Council as conditions to approval of the
Master Plan and this Agreement.
1.5 Planning Commission /City Council Hearings. The Planning
Commission, after giving appropriate notice, held public
hearings to consider a development agreement, the proposed
Master Plan, and the EIR on December 5, 1991, January 9, 1992,
January 23, 1992, February 6, 1992, and February 20, 1992. The
City Council conducted public hearings on the Master Plan, this
Agreement and the EIR on March 23, 1992, March 30, 1992, April
13, 1992 and May 11, 1992.
• 1.6 Consistency. This Agreement is consistent with the various
elements of the Newport Beach General Plan, the Master Plan,
and other applicable ordinances, plans, and policies of the
City. This Agreement is also consistent with the purpose and
intent of state and local laws authorizing development
agreements in that it represents comprehensive planning,
provides certainty in the approval of subsequent projects
subject to compliance with conditions, reduces the economic
costs of development by providing assurance to Hoag that it may
generally proceed with projects in accordance with existing
regulations, and provides assurance to adjoining property
owners that limits on the height of structures and amount of
development as specified in the Master Plan and this Agreement
will remain in full force and effect for a period of twenty -
five (25) years.
1.7 Police Power. 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.
0 1.8 City Ordinance. On May 26, 1992, the City Council adopted
Ordinance No. 92 -4 approving this Agreement and authorizing the
City to enter into this Agreement. The Adopting Ordinance will
become effective on June 26, 1992.
2.1
2.2
kr \hoagda.fnl
5 -20 -92
Aft
The "Adopting Ordinance" refers to City Ordinance No. 92 -4,
adopted on May 26, 1992 by the City Council, which approved and
authorized the City to enter into this Agreement.
"Agreement" refers to this "Development Agreement Between the
City of Newport Beach and Hoag Memorial Hospital Presbyterian ".
2.3 "Annual Review" refers to the review of Hoag's good faith
compliance with this Agreement and conditions on development as
set forth in Section 5.
2.4 The "Approval Date" means the date on which the City Council
voted to adopt the Adopting Ordinance.
2.5 All forms of use of the verb "assian" and the nouns
"assignment" and "assignee" shall include all contexts of
hypothecations, sales, conveyances, transfers, leases, and
assignments.
• 2.6 "CEOA" and the "CEOA Guidelines" refers to the California
Environmental Quality Act and the CEQA Guidelines promulgated
by the Secretary of Resources of the State of California,
including any amendments adopted subsequent to the Effective
Date.
2.7 "City" refers to the.City of Newport Beach, California.
2.8 "City 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 "Hoag
Default" refers to a default by Hoag.
2.12 The "Effective Date" refers to the effective date of the
Adopting Ordinance and is the effective date of this Agreement.
• 2.13 The "EIR" refers to Environmental Impact Report No. 142 of the
City of Newport Beach.
2.14 An "Estoppel Certificate" refers to the document certifying the
status of this Agreement required by Section 5.6 in the form of
Exhibit "D ".
2.15 An "Exaction" refers to those specific dedications and
improvements required of Hoag and set forth in Section 8.2
below.
2.16 An "Exhibit" refers to an exhibit to this Agreement as listed
in Section D. All Exhibits are incorporated as a substantive
part of this Agreement. The Exhibits to this Agreement are:
kr \hoagda.fnl
5 -20 -92
AMk
3
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
Exhibit C: The Master Plan Estoppel Certificate
Exhibit D: Estoppel Certificate
2.17 "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.
2.18 "Future General Regulations" means those General Regulations
(see Section 2.20 below) adopted by the City after the Approval
Date.
2.19
"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 Traffic
Contribution Fee Ordinance, Uniform Building Codes and water
and sewer connection and fee ordinances.
2.20
"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 and
effective prior to the Effective Date.
2.21
"Hoag" refers to Hoag Memorial Hospital Presbyterian, a non-
profit corporation.
2.22
"Includes" and all contexts and forms of the words "includes"
and "including" shall be interpreted to also state "but not
limited to."
• 2.23
"Master Plan" refers to the Hoag Memorial Hospital Presbyterian
Master Plan and Planned Community Development Plan which was
adopted by the City on May 26, 1992 (Exhibit "C").
2.24 "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.
2.25 "Notice" refers to any written notice or demand between the
Parties required or permitted by this Agreement.
kr \hoa9daJnl
5 -20-92 4
Ank
2.26 The "Parties" refers to the City and Hoag and a "Party" shall
refer to either of the Parties.
2.27 "Planning Commission" refers to the Planning Commission of the
City.
2.28 The "Proiect" refers to the proposed development of the
Property pursuant to the Master Plan and this Agreement.
2.29 "Project Specific Approvals" means all site - specific (meaning
specifically applicable to the Property only and not generally
• applicable to some or all other properties within the City)
plans, subdivision maps, permits, or other entitlements.
Project Specific Approvals include subdivision maps, site plan
review, conditional use permits, variances, grading and
building permits, as well as amendments or modifications to
those plans, maps and permits. Project Specific Approvals does
not include Existing or Future General Regulations.
2.30 The "Property" refers to the real property described on Exhibit
"A" and depicted on Exhibit 11B."
3. CONDITIONS TO DE_VRWPMENTT.
3.1 Introduction. The provisions of this Section express the
intent of the parties regarding the extent to which this
Agreement vests Hoag's right to proceed with the development
described in the Master Plan. Hoag acknowledges that its right
to proceed with development described in the Master Plan is
subject to numerous conditions and mitigation measures
including the following:
(a) The specific limitations and restrictions contained in
• the Master 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 supplemental environmental analysis
pursuant to provisions of CEQA and the CEQA Guidelines;
(d) Conditions imposed by the City Council in conjunction
with the approval of Traffic Study No. 81 and Variance
No. 1180;
(e) Compliance with the terms and conditions specified in
this Agreement.
kr \hoagda.fnl
5 -20 -92 5
Ank
M Compliance with Existing General Regulations.
3.2 Compliance wire Master Ylan ConolLlon5 /m.LGigal.iyil nmamui=�-
Hoag acknowledges that City Council approval of the Master Plan
and this Agreement was subject to compliance with numerous
conditions and mitigation measures designed to minimize or
eliminate the significant adverse effects of the Project and
ensure the health, safety, and welfare of nearby residents as
well as Hoag patients and employees. 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
grading or construction. Specific mitigation measures that
require compliance with, or satisfaction of, standards before
grading or construction can occur include the following:
(a) Slope excavation techniques which insure stability;
(b) Grading and excavation techniques which minimize
disturbance to adjacent residents and the general
public;
(c) Identification of potential faults on site and
construction of buildings pursuant to recommendations
of certified geologists and in a manner which insures
that nearby residents, Hoag patients and Hoag employees
are not exposed to a significant risk of injury;
(d) Evaluation of soil corrosivity and removal of corrosive
soils or use of corrosion resistant construction
materials;
(e) Mitigation of impacts caused by removal of wetlands
through off -site restoration as required by resource
• agencies;
(f) Preparation and approval of a project trip generation
study prior to development of Phase I of the Master
Plan (if Hoag proposes a land use other than specified
in the approved Traffic Study);
(g) Preparation and approval of a project trip generation
study as a condition to construction of development in
Phases II and III of the Master Plan;
(h) Preparation and approval of a Traffic Phasing Ordinance
analysis prior to construction of development in Phase
II and Phase III of the Master Plan;
kr \hoagda.fnl
5 -20.92 6
r_l
(i) Preparation of a view impact analysis of each proposed
building prior to issuance of permits;
(j) Analysis and mitigation of emissions in accordance with
the regulations of the South Coast Air Quality
Management District;
(k) Preparation and approval of a construction phasing and
traffic control plan for each phase of development.
• Hoag's right to develop the Property pursuant to the Master
Plan is contingent upon compliance with, and satisfaction of,
the conditions and mitigation measures imposed by the City
Council as of the Approval Date, as well as conditions and
mitigation measures resulting from subsequent environmental
analysis as specified in Paragraph 3.3.
3.3 Proaram EIR. Hoag acknowledges that the EIR is a "Program
EIR." The EIR analyzes the impacts of construction phased over
time and, pursuant to CEQA, City is under a continuing
obligation to analyze Hoag's requests for Project Specific
Approvals to ensure the environmental impacts associated with
the request were fully addressed in the EIR. Subsequent
environmental documentation is required if this analysis
reveals environmental impacts not fully addressed in the
program EIR, identifies new impacts, or concludes the specific
request is not consistent with the project described in the
EIR. Hoag acknowledges the right and obligation of the City to
impose additional conditions as the result of the subsequent
environmental analysis required by CEQA.
3.4 Mitigation Monitoring Plan. City shall prepare a Mitigation
Monitoring Plan ( "Plan ") within sixty (60) days after the
• Effective Date. Hoag shall not submit any application for
Project Specific Approval until the Plan has been approved by
the City Council. The Plan shall comply with and satisfy the
requirements of CEQA and the Guidelines. The Plan shall be
available to the public upon request.
3.5 Compliance with General Regulations. Hoag is required to
comply with the Existing General Regulations. As to those
Existing General Regulations which require the payment of fees,
costs, and expenses, Hoag shall pay the fee, cost, or expense
required as of the date on which Hoag submits the application
for Project Specific Approval. Hoag shall also comply with any
Future General Regulations that do not impair Hoag's ability to
develop the Property in accordance with the density, intensity,
height and location of development specified in the Master
Plan. Hoag shall also comply with all provisions of the
Uniform Building Code, whether adopted before or after the
kr\hoa9da.fnl
5 -20 -92 7
Amk
Approval Date, which are in effect at the time applications for
specific development permits are submitted.
4. RIGHT TO DEVELOPMENT.
4.1 Right to Develop. Subject to compliance with the provisions of
Sections 3 and 8.2, Hoag shall have a vested right to develop
and receive Project Specific Approvals for construction on the
Property to the full extent permitted by the Master Plan. In
granting Project Specific Approvals, City may impose standard
• conditions pursuant to Existing General Regulations generally
applicable to similar projects provided the conditions do not
impair Hoag's ability to develop the Property in accordance
with the density, intensity, height and location of development
specified in the Master Plan. Subject to the provisions of
Sections 3 and 8, City shall only take action which complies
with and is consistent with the Master Plan and this Agreement
unless Hoag otherwise consents in writing. Subject to this
Subsection, City shall have the authority to impose only those
Exactions which are specifically described in this Agreement,
except as expressly required (as opposed to permitted) by state
or federal law.
4.2 Reservations or Dedications of Land. Except as expressly
provided in this Agreement, no dedications or reservations of
the Property shall be required of Hoag in conjunction with the
application or issuance of any permit authorizing development,
construction, use or operation of the Property.
4.3 Conflicting Measures. Except as expressly provided in this
Agreement, no initiative measure, moratorium, referendum
(except as provided in Government Code Section 65857.5),
is 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 Master Plan and this Agreement
(including density, intensity, timing, phasing, and sequencing)
shall be applied to the Property during the term of this
Agreement.
4.4 Time for Construction and Completion of Project. Subject to
the provisions of this Agreement and the Master Plan, Hoag
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 approval of, in a timely
manner, permits or approvals at any time.
kr \hoagda.fnl
5 -20 -92
Amk
E -3
5. ANNUAL
REVIBW.
5.1
City and Hoag Responsibilities. At least every twelve (12)
months during the Term, the City shall review Hoag's good faith
substantial compliance with this Agreement (the "Annual
Review "). After the Annual Review, the City's finding of good
faith compliance by Hoag 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 at the request of either Party to
afford sufficient time for analysis and preparation of a
response.
5.2
Public Hearing. The Annual Review shall be conducted at a
public hearing noticed in accordance with the provisions of
Chapter 15.45 of the Newport Beach Municipal Code.
5.3
Information to be Provided to Hoag. The City shall mail to
Hoag a copy of the staff report and related exhibits concerning
Agreement performance a minimum of ten (10) days before the
Annual Review.
5.4
Mitigation Review. The annual review shall include a detailed
report of compliance with the various conditions and mitigation
measures contained within the mitigation monitoring plan. The
report shall include an analysis of the view impacts of
buildings constructed in comparison to the anticipated views as
depicted in the EIR. Hoag shall be found in compliance with
this Agreement unless the City Council determines, based upon
the evidence presented at the Annual Review, that Hoag has not
complied with all mitigation measures and conditions including
those imposed as a result of subsequent environmental analysis,
•
applicable to the grading of, or building on, the Property as
of the date of the Annual Review.
5.5
Review Letter. If Hoag is found to be in compliance with the
Agreement after the Annual Review, the City shall issue, within
ten (10) days of Hoag's written request, a letter to Hoag
stating that the Agreement remains in effect and Hoag is not in
Default.
5.6 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.
kr\hoagda.fnl
5 -20 -92
Amk
(b) The Agreement has not been amended or modified either
orally or in writing or, if so amended, identifying the
amendments.
(c) 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."
5.7 Failure to Conduct Annual Review. The City's failure to
conduct an Annual Review shall not constitute or be asserted by
the City as Hoag's Default.
GENERAL PROVISIONS.
6.1 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.
6.2 Annlicability to Coastal Zone, This Agreement shall not be
applicable to those portions of the Property located within the
Coastal Zone as defined by the California Coastal Act (Division
20, California Public Resources Code, beginning with Section
30000) until either (1) the required local coastal program for
the Property has been certified by the California Coastal
Commission or (2) the California Coastal Commission has
approved this Agreement. This Subsection is intended solely to
comply with the provisions of California Government Code
Section 65869 and shall be of no force or effect if Section
65869 is repealed.
6.3 Term of Aareement. 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.
6.4 Assignment. Hoag 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
kr\hoagda.fnl
5 -20 -92 10
Aak
this Agreement. As long as Hoag owns any part of the Property,
Hoag may assign the benefits of this Agreement without
delegating the obligations for the portion of the Property
assigned. If that occurs, however, the benefits assigned shall
remain subject to the performance by Hoag of the corresponding
obligations.
Where an assignment includes the delegation of both the
benefits and the corresponding obligations, those obligations
become solely the obligations of the assignee. If an assignee
• is in Default, then as to Hoag or any assignees not in Default,
the Default shall not constitute their Default, give grounds
for termination of their rights under this Agreement or be a
basis for an enforcement action against them.
6.5 Amendment of Aareement.
(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 Hoag shall not
request, any amendment to the provisions of the Master
Plan or this Agreement that would increase the maximum
permitted gross floor area or the maximum permitted
building height (within any lettered building envelope)
above that established by the Master Plan 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.
6.6 Enforcement. This Agreement is enforceable by each of the
Parties and their respective successors and assigns.
6.7 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) 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,
kr\hoagda.fnl
5.20 -92 11
(c) The effective date of a Party's election to terminate
the Agreement as provided in Section 9.3 of this
Agreement.
6.8 Hoag shall defend, indemnify and hold harmless the City and its
officers and employees with respect to any claim, loss or
damage in any way related to the grading, excavation or
stabilization of the slopes adjacent to the view parks by Hoag
or its employees, agents contractors or representatives. This
Section is not intended to impose liability on Hoag for the
acts of persons other than Hoag or its agents, representatives
• or contractors.
6.9 Hoag shall enter into an agreement with City to accept
ownership of, and responsibility for maintenance for, the
existing methane gas venting flare and any device for
collecting gas that is subsequently installed on the Property
pursuant to conditions or mitigation measures imposed in
conjunction with the Master Plan approval or subsequent
environmental analysis.
7. CONFLICTS OF
7.1 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;
kr \hoe9de.fn!
5 -20 -92
I 1
12
(e) neither the modification nor any applicable local,
state, or federal laws or regulations, may render the
modified Agreement impractical to enforce; and
(f) Hoag consents in writing to the modification.
Hoag shall have the right to seek judicial review of any
proposed modification to ensure compliance with this Section.
• 7.2 Effect of Termination. If this Agreement is terminated as a
result of changes in state or federal law, Hoag remains
obligated to comply with the provisions of Section 8.2(a) and
(b), unless Hoag has completed construction of less than
twenty -five percent (25 %) of the maximum permitted development.
8. PUBLIC BENEFITS /EXACTIONS.
8.1 Public Benefits City and Hoag agree that this Agreement
confers a substantial public benefit by enabling Hoag to
construct facilities most appropriate to changes in medical
technology and thereby better satisfy the health care needs of
residents within its service area. In addition, the Master
Plan and this Agreement confer benefits on the public and
nearby residents by imposing long term restrictions on the
height, amount and location of development as well as the
public improvements described in Section 8.2.
8.2 Exactions. Hoag shall, as a condition to the right to develop,
do the following:
(a) Irrevocably offer to dedicate and grade the proposed
• linear and consolidated view park identified in Figure
3.2.1 of Volume 1 of the EIR. Hoag shall grade and
excavate the slope adjacent to the proposed .28
(28/100) acre consolidated view park and .52 (52/100)
acre linear view park in a way that ensures stability
of the park and adjacent slopes. The grade (between
the bicycle path and edge of slope) of the view parks
shall be the minimum necessary to insure adequate
drainage.
(b) Subsequent to the approval of this Agreement by the
Coastal Commission and the expiration of any statute of
limitation for filing a legal challenge to this
Agreement, the Master Plan, or the EIR, Hoag shall
deposit Two Hundred and Fifty Thousand Dollars
($250,000.00) in an account, and at a financial
kr \hoagda.fnl
5 -20 -s2 13
Alak
institution, acceptable to City. The account shall be
in the name of the City provided, however, Hoag shall
have the right to access the funds in the event, but
only to the extent that, Hoag constructs or installs
the improvements described in (i) or (ii). Funds in
the account shall be applied to the following projects
(in order of priority upon notice to proceed served by
City on Hoag):
(i) The construction of a sidewalk and
• installation of landscaping in the CalTrans
right -of -way along the west side of Newport
Boulevard southerly of Hospital Road;
(ii) The construction of facilities necessary to
bring reclaimed water to West Newport and /or
the Property;
Any funds remaining in the account after completion of
the projects described in (i) and (ii) shall be used by
the City to fund, in whole or in part, a public
improvement in the vicinity of the property.
(c) City and Hoag shall conduct a study of improvements in
and around the easterly end of Semeniuk Slough that
would, among other things, improve the appearance of
the area and, potentially, serve as a component to
improve public access from residential areas in West
Newport to park land and public recreation facilities
proposed in conjunction with development of the West
Newport oil Company property. The study shall analyze,
among other things, the type of improvements that would
improve the area without adversely impacting wetlands,
• the possible location of pedestrian trails and the
potential for those trials to improve access to
proposed recreational facilities, phasing of the
improvements, potential public benefits, and the cost
of the improvements. As a part of the study, Hoag and
City shall meet and confer with resource agencies
relative to the type and extent of improvements that
may be permitted in or adjacent to wetlands. Hoag
shall fund the study and participate in the cost of
constructing any improvements in the area that the City
Council determines are feasible and in the public
interest, provided, however, the financial contribution
of Hoag, including the costs of the study and
improvements, shall not exceed Two Hundred Thousand
Dollars ($200,000.00).
kr \hoagdaJnl
s -2o -92 14
(d) Hoag's obligations pursuant to Subsection (c) are
contingent on Coastal Commission approval of the Master
Plan and this Agreement with no significant reduction
in entitlement from that authorized in the Master Plan.
Hoag's obligations pursuant to Subsection (b) shall be
reduced through good faith negotiations in the event
the Coastal Commission reduces entitlement by ten_
percent (10 %) or more from that authorized in the
Master Plan.
•DEFAULT REMEDIES AND TERMINATION.
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 (3 0)
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. Within thirty (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.
9.3 Notice of Termination. After considering the evidence
• presented to the City Council, 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 existence of a Default. 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 11.16, in which case the court must render
an independent judgment, on the basis of clear and convincing
evidence, as to the existence of good cause for termination.
Termination may result only from a material Default of a
material provision of this Agreement.
kr \hoagda.fnl
5 -20 -92 15
Adak
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 Hoaa. If the City alleges a Hoag Default, the City
shall conduct a hearing utilizing the Annual Review procedures
required by this Agreement before the City may commence legal
proceedings to terminate this Agreement.
9.6 Default by the City. If Hoag alleges a City Default, Hoag,
without limiting any of its other remedies, shall not be
• obligated to proceed with or complete the Project or any phase
of the Project, nor to perform any further obligations under
the Agreement. Upon a City Default, any resulting delays in
Hoag's performance shall neither be Hoag's Default nor
constitute grounds for termination or cancellation of the
Agreement by the City.
10. ENCUMBRANCES AND RELEASES ON PRWPERT
10.1 Discretion to Encumber. Hoag 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 Hoag
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.
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 Hoag Default at the same time Hoag is provided with Notice
pursuant to Section 9.1.
1. MISCELLANEOUS PROVISIONS.
11.1 Notices. All Notices (see Section 2.26) 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
kr \hoagda.fnl
5 -20 -92 16
•
•
(c) For telegram, upon the transmission of the telegram.
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: City Manager
To Hoag: Hoag Memorial Hospital Presbyterian
301 Newport Boulevard
Newport Beach, CA 92663
Attention: President
With a copy to:
Tim 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 Delav•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. If written Notice of such delay is given
to the other Party within thirty (30) days after such delay
begins an extension of time for performance shall be granted in
writing for the period of the delay, or longer as may be
mutually agreed upon. In no event shall the term of this
Agreement be extended as a result of the application of this
Subsection.
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
kr \hoagda.fnl
5 -20 -92
Ank
17
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 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 Walyers. 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.
11.8 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.
11.9 Successors and Assigns. Subject to Section 6.3 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.
11.10 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.
kr \hoagda.fnl
5 -20 -92
AIIhk
18
•
11.11 Authority to Execute. The person executing this Agreement on
behalf of Hoag warrants and represents that he /she has the
authority to do so and the authority to bind Hoag to the
performance of Hoag's obligations under this Agreement.
11.12 Consent. Any consent required by the Parties in carrying out
the terms of this Agreement shall not unreasonably be withheld.
11.13 Effect on Title. This Agreement shall not continue as an
encumbrance against any portion of the Property as to which
this Agreement has terminated.
11.14 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.
11.15 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 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.
11.16 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.
ate: 1 1992 CITY OF NEWPORT BEACH
By:
Mayor
Date: , 1992 HOAG MEMORIAL HOSPITAL
By:
Albert J. Auer
Chairman of the Board
kr \hoagda.fnl 19
5-20 -92
Allak