HomeMy WebLinkAbout92-35 - Approving A Development Agreement Between the City of Newport Beach and the Irvine Company for the Circulation Improvement and Open Space Agreement (Development Agreement No. 6)ORDINANCE NO. 92 -35
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND THE
IRVINE COMPANY FOR THE CIRCULATION
IMPROVEMENT AND OPEN SPACE AGREEMENT
(DEVELOPMENT AGREEMENT NO. 6)
• f City of Newport Beach DOES ORDAIN as follows:
The City Council o the ty wp
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. 6 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. 6; and
g. The City Council finds that said Development Agreement is in
compliance with the California Environmental Quality Act and Guidelines promulgated
thereunder; and
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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. 6 for the Circulation Improvement and Open
Space Agreement, 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 24th day of August t 1992, and was adopted on the
14th day of September , 1992, by the following vote, to wit:
AYES, COUNCIL 1 iE
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\Q� � Y NOES, • I L MEMBE
ABSENT COUNCIL MEMBERS •
MAYOR
ATTEST
CITY CLERK
Attachment
Exhibit "A": Development Agreement No. 6 for the Circulation Improvement and Open
Space Agreement PLT -... \CC\DA \DA6.ORD
Exhibit A
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CIRCULATION IMPRO.VEMEN
AND
OPEN SPACE AGREEMENT
(Pursuant to Government Code Sections 65864- 65869.5)
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M,
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
330 Newport Boulevard
Newport Beach, California 92663 -3884
• CIRCULATION IMPROVEMENT AND OPEN SPACE AGREEMENT
(Pursuant to Government Code Sections 65864- 65869.5)
This CIRCULATION IMPROVEMENT AND OPEN SPACE AGREEMENT
(the "Agreement ") is entered into this . day of ,
1991, by and between the City of Newport Beach, California, a
municipal corporation and charter city ( "City ") and The Irvine
Company, a Michigan corporation, ( "Company ") . City and Company are
sometimes collectively referred to herein as the "Parties."
RECITALS
A. Company is the owner of those parcels of real property
(collectively, the "Property ") described on Exhibit "A" and
depicted on Exhibit °B." Aside from in -fill sites, the Property
represents virtually all of Company's remaining undeveloped real
property in the city limits of City as of the date of this
Agreement.
B. In 1987, the City Council of Newport Beach initiated
amendments to the Land Use and Circulation elements to determine
desired levels of growth and the amount of growth that could be
accommodated by the circulation system at build out. This
• comprehensive update of the General Plan began with an evaluation
of the type and density of growth permitted on each parcel within
the City and included a thorough analysis of the circulation system
improvements necessary to accommodate additional traffic at service
levels acceptable to the City Council. This process culminated in
1988 amendments to the Land Use and Circulation element which
greatly reduced permitted growth while recognizing the need for
some development to assist in funding needed circulation system
improvements. The General Plan recognizes the importance of
"phasing circulation system improvements with development" and to
"construct and advance" those "major circulation improvements which
may be required of more than one developer...."
C. According to the Land Use Element of the General Plan, the
Property represents less than 23% of all future residential growth,
less than 88 of all future commercial growth, and less than 10% of
the additional traffic projected from all permitted growth. Given
current state and federal budget deficits, and depletion of local
sources of revenue, the accumulation of funds necessary to complete
all required master plan circulation improvements may take 20 years
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or more and many of those improvements are needed today.
D. This Agreement implements General Plan policies and goals by
enabling city to fund and complete circulation system improvements
prior to the construction of projects and much more rapidly than
could be required by current City ordinances through the following;
1. Company's prepayment of the fees required by Chapter
15.38 of the Newport Beach Municipal Code, or successor
ordinance, for all development permitted on the Property
prior to the commencement of any individual project; •
2. Company's commitment to construct, or assist in the
construction of, circulation system improvements adjacent
to individual parcels concurrent with development of the
adjacent parcel; and
3. Company's no interest loan to City for thelconstruction
of circulation system improvements with repayment based
solely upon contributions from other developers.
Company's agreement to prepay fees, construct frontage improvements
and advance funds represents a financial commitment in excess of 20
million dollars.
E. The Agreement also requires the preservation or dedication of
land for park and open space purposes to a greater extent, and much
more rapidly than, required by the City's park dedication ordinance
or the recreation and open space element. The open space and
public facility land dedications required by this Agreement
represent at least seventy -two (72) acres more land than would be
required under the Current General Plan, and Park Dedication
ordinance so Newport Beach residents will be able to enjoy the open
space years before the land would otherwise be available for public
use. •F. This Agreement is consistent with provisions of state law
(Government Code Section 65864 et seq.) and local law (Chapter
15.45) which authorize binding agreements that: (i) encourage
investment in, and commitment to, comprehensive planning and public
facilities financing; (ii) strengthen the public planning process
and encourage private implementation of the local general plan;
(iii) provide certainty in the approval of projects in order to
avoid waste of time and resources; and (vi) reduce the economic
costs of development by providing assurance to the property owners
that it may proceed with its projects in accordance with existing
policies, rules, and regulations.
G. This Agreement satisfies the provisions of Chapter 15.40 of
the Newport Beach Municipal Code in that it constitutes a
comprehensive phased land use development and circulation system
improvement plan with construction of all phases not anticipated to
be complete within sixty (60) months of project approval, the
project is subject to an agreement which requires the construction
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of major improvements early in the development phasing program and
development anticipated to be complete within sixty (60) months of
project approval will not cause or make worse an unsatisfactory
level of traffic service at any intersection for which there is a
feasible identified improvement. Moreover, the plan results in an
overall benefit to traffic circulation and will result in an
overall reduction in intersection capacity utilization at impacted
intersections.
H. The City Council finds that this Agreement is: (i) consistent
is with city's General Plan and all specific plans as of the date of
this Agreement applicable to the Project; (ii) in the best
interests of the health, safety, and general welfare of City, its
residents, and the public; (iii) entered into pursuant to and
constitutes a present exercise of City's police power; and (iv)
consistent, and has been approved in accordance, with provisions of
Government Code Section 65867 and Chapter 15.45 of the Newport
Beach Municipal Code.
NOW, THEREFORE, City and Company agree as follows:
1. Definitions.
1..1 "Advance" shall mean that sum described in paragraph 2.4
below.
1..2 "Agreement Date" is the date on which this Agreement was
executed, as first set forth above.
1..3 'ICE 11 is the California Environmental Quality Act,
• Public Resources Code Section 21000, et sea.
1..4 "City Council" is the City Council of City.
1..5 "Development Concept" means the number of dwelling
units, product type (such as single family detached
versus single family attached), lot size, or floor area
in the case of residential projects and a reduction in
developable area or permitted gross floor area in the
case of retail and office development.
1..6 "Effective Date" shall be the first date on which all of
the following have occurred: (1) the California Coastal
Commission has given final approval to this Agreement, (2) the
time for filing a legal challenge to the approval of this
Agreement, the environmental or planning documents related to
this Agreement, or the process or procedures preliminary to
approval by the City or California Coastal Commission has
expired under all applicable statutes of limitation without a
lawsuit being filed, or if such a lawsuit is filed, a final
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judgment upholding this Agreement, related documents or the
approval process has been entered, and (3) City has issued a
grading permit or building permit for development on the
Property other than (a) development on the southerly portion
of Freeway Reservation East, (b) a low and /or very low senior
citizen housing development on Bayview Landing, (c) a senior
citizen housing development in Block 800, and (d) the
Newporter Resort expansion. In the event that the Effective
Date has not occurred on or before the fifth anniversary date
of the City's execution of this Agreement, this Agreement may
be terminated upon written notice from either party.
1..7 "Fair Share Fees" shall mean those fees assessable by
City pursuant to Chapter 15.38 of the Newport Beach Municipal
Code, or successor ordinance.
1..8 "Frontage Improvements" consist of thosei circulation
improvements listed in Exhibit eiC91 as to each respective
parcel of the Property and shall include all work necessary to
bring the street to Master Plan Standards including, without
limitation, pavement, curb, gutter, sidewalk and medians.
Frontage Improvements also include dedication of all right of
way necessary to construct the street to Master Plan
Standards. If the street to be improved is along the boundary
of a parcel, the Frontage Improvements include all work
necessary to improve the street to Master Plan Standards
between the property line and the center line of the street.
If the street to be improved runs through a parcel, Frontage
Improvements include all work necessary to improve the street
to Master Plan Standards.
1..9 "Master Plan Standards" shall mean those provisions of
the Newport Beach Circulation Element, State law, County or
City ordinance, resolution or regulation, Public Works
Department specification or standard, or 'construction
documents that govern the design or improvement of the
Frontage Improvements listed in Exhibit 11C.11 The Master Plan
standards shall be those in effect as of the Effective Date of
this Agreement. In the event of a change to the Master Plan
standards subsequent to the Effective Date, City may request
dedication, without cost to the City, of any additional right
of way necessary to complete the circulation system
improvement to then current Master Plan standards;, and Company
shall dedicate the additional right of way unless to do so
would require a significant change in the Development Concept
specified in the relevant PC Text for the adjacent parcel.
1..10 "PC Text" shall mean the planned community
development text specifying the type and intensity or density
of development permitted on each parcel of property covered by
this Agreement, as shown in Exhibit "H11.
1..11 "Party" means either City or Company. or both, as
determined by the context.
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1..12 " eat" consists of on -site and off -site
improvements Company is required to construct with respect to
each parcel of the Property as provided in this Agreement or
as authorized by the entitlement provisions of the relevant PC
Text (Exhibit "H") and in Exhibits "C" and "D," as well as the
improvements to MacArthur Boulevard described in Section 2.3,
as further defined, enhanced or modified by provisions of this
Agreement or related environmental documentation. The term
Project does not consist of any improvement shown on any PC
• Text for a parcel Company is required to dedicate to City for
open space and public facility purposes.
1..13 "Property" is the real property on which the Project
is, or will be, located as described on Exhibit "A" and
depicted on Exhibit "B."
2. Circulation Improvement Funding. Company shall assist in the
funding of circulation system improvements in City as follows:
2..1 Fair share Fees. Within ten (10) days following the
Effective Date, Company shall prepay to City all Fair Share
Fees that Company would be required to pay as a condition to
development of the Project consistent with the type and
intensity and or density of development for the Property
specified in the PC Texts. In the event Company proceeds with
development on any portions of the Property identified as
exceptions in Section 1..6 prior to the Effective Date,
Company shall be required to pay to City the Fair Share Fees
for that development as part of that development to be
credited against the full payment obligation of this Section
2..1 that becomes due within ten (10) days following the
Effective Date.
• 2..2 Frontage Improvements.
A. Completion /Bonding. Company shall complete, or
provide acceptable security for completion of, Frontage
Improvements at or prior to recordation of the final
subdivision map for any respective parcel of Property
listed on Exhibit "C." Company shall complete Frontage
Improvements prior to the issuance of a Certificate of
Occupancy if no subdivision map is processed preliminary
to construction on any parcel. The cost of Frontage
Improvements as specified in Exhibit "C" is approximate,
has been included for purposes of calculating the amount
of the Advance, and Company's obligations with respect to
Frontage Improvements shall not be affected if the actual
cost of one or more of the improvements is greater than
that estimated in this Agreement.
B. Dedication. The dedication of necessary right of way
for the Frontage Improvements shall be made when Company
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constructs Frontage Improvements or when City requests
dedication in contemplation of a construction project
involving the Frontage Improvements and for iwhich funding
has been identified and approved by any Federal, State or
local agency from which funding was requested. In the
case of a State highway, dedication shall be made to the
State and in sufficient time to meet State standards for
right of way certification prior to advertising for bids
to construct the project. Company shall dedicate right
of way without charge or expense to City or the State in
consideration of the development entitlement conferred by
this Agreement. The value of land required to be
dedicated shall not be considered in the calculation of
the cost of Frontage Improvements nor the amount of the
Advance. Prior to the Effective Date, Company shall
consider in good faith and has indicated a general
willingness to, but is not required, to approve, City
requests for dedication of right of way necessary to make
Frontage Improvements when City has obtained commitments
from Federal, State or local sources to fund a portion of
the costs of such improvement.
C. Acceleration of MacArthur Boulevard Right of way
Dedication.
Company shall dedicate the right of way along the west
side of MacArthur Boulevard between Pacific Coast Highway
and San Joaquin Hills Road necessary to widen and
relocate the roadway to Master Plan standards less than
thirty (30) days after a written notice to dedicate is
served as provided in Section 17. Company's obligation
to dedicate right of way pursuant to this Subsection
shall commence eighteen _(18) months after the Agreement
Date.
2..3 MacArthur Boulevard Improvements Northerly of Form Road.
Commencing no later than ten (10) days after the Effective
Date, Company shall use its best efforts to obtain all
necessary permits to, commence construction of and diligently
pursue to completion, the widening'of MacArthur Boulevard
between Ford Road and the location of the proposed preferred
alignment for the future San Joaquin Hills Transportation
Corridor, such that there are a minimum of six'travel lanes
and a minimum of three northbound travel lanes. Company shall
not be required to expend more than five hundred thousand
dollars ($500,000.00) in direct project - related costs to
comply with its obligation to widen MacArthur Boulevard as
provided in this Subsection.
2..4 Company Advance. Subject to the provisions of Section
3..4, Company shall, on or before the Effective Date, make
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available to City a sum of money which City may use for
circulation system improvements or projects necessary to
complete the City's Master Plan of arterial highways as
specified in the Circulation Element to the Newport Beach
General Plan. This advance shall be calculated and utilized
in accordance with the following:
A. Amount of Advance. The Advance shall be
$20,600,000.00 less [$4,806,000.00] (the estimated total
cost of the Frontage Improvements as described in Exhibit
• °C", but not necessarily the actual cost) and less the
amount of Fair Share Fees for the Property as determined
on the Agreement date).
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B. Adjustments. The Advance shall be adjusted by the
percentage increase or decrease in the California Highway
Construction Items ("CHCI") Index (or the most similar
index in the event the CHCI Index is no longer published)
between the Agreement Date and the Effective Date.
C. Use of Advance. City shall use the Advance only to
fund improvements that are consistent with the
Circulation Element and satisfy at least one of the
following criteria:
1. Insure that no unsatisfactory level of traffic
service is caused, or made worse, at any
intersection impacted by the project for which
there is a feasible identified improvement;
Contribute to the overall reduction in intersection
capacity utilization at intersections impacted by
traffic generated by development authorized by this
Agreement, taking into account peak hour traffic
volumes; and
3. Represent improvements which have been considered
by the City Council in finding that the benefits to
traffic circulation resulting from this Agreement
substantially outweigh any increase in traffic
congestion at impacted, but unimproved,
intersections.
City shall have the right to substitute circulation
improvements for those identified in the traffic study
prepared in conjunction with EIR 148 and /or imposed as
mitigation measures by the City Council, provided, the
substitute improvements reduce traffic to the same, or
greater, degree as those originally proposed and satisfy
one or more of the criteria specified above.
3. Terms and Conditions of the Advance. The Advance will be
subject to the following terms and conditions:
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3..1 Interest. City shall pay no interest Ion the
Advance or any City draw on the Advance; j
3..2 Limitation. City shall draw down the Advance only for
the reasonable costs and expenses associated with the
construction of circulation improvements including, without
limitation, design, right of way acquisition, ;engineering,
environmental analysis, contract administration, and
construction. City may not draw upon the Advance for
arbitrage or similar purposes.
3..3 Timing of Draws. City and Company shall each act in •
good faith with respect to the timing of draws against the
Advance. City and Company shall establish procedures for
effecting draws against the Advance which insure prompt
payment of contractors, consultants and suppliers,— and
minimize the administrative and accounting burden on City,
while avoiding any significant reduction in the interest
Company would receive.
3..4 Accelerated Draws Against the Advance. City will, prior
to the Effective Date, use its best efforts to obtain funding
for roadway improvements from Federal, State and local
sources. City is focusing its efforts on funding for the
improvement of MacArthur Boulevard between Pacific Coast
Highway and San Joaquin Hills Road to Master Plan standards.
(MacArthur Phase I) . The parties acknowledge that it is
unlikely City will receive funding for MacArthur Phase I from
Federal, State or County sources unless City is willing and
financially able to commit matching funds. In such event,
City may, no sooner than two (2) years after the Agreement
Date, submit a written request for Company's consent to draw
against the Advance prior to the Effective Date. Company
shall consider in good faith, and while not legally obligated
to do so has indicated a general willingness to approve, •
requests from City for draws against the Advance prior to the
Effective Date if necessary to secure matching funds from
Federal, State, County or private sources that represent a
substantial portion of the cost of constructing MacArthur
Phase I or other circulation improvements identified in
2..4(C).
3..5 Use Of Advance. City shall, to the maximum extent
practical, continue to pursue and use any and all private,
county, state and /or federal sources of funds for circulation
system improvements as and to the extent available.
3..6 Reduction Of Advance By Draws As draws are made
against the Advance, the total remaining balance of the
Advance shall be permanently reduced by the amount of the
draw; and
3..7 ReVavment Of Advance. City shall repay the Advance as
follows:
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(a)
From and continuously following the City's first
draw on the Advance, City shall, to the extent
permitted by law, collect Fair Share Fees (or their
equivalent) from the owners of properties within
City (other than the Property). City shall pay to
Company Fifty percent (50 %) of all such fees
collected to repay any unreimbursed draw against
the Advance until City's repayment obligations
expire as provided in Subsection (d);
(b)
City shall periodically recalculate the amount of
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Fair Share Fees as specified in the relevant
ordinance;
(c)
City shall to the extent permitted by statutory or
decisional law amend its Fair Share Ordinance, or
take such other action as may be appropriate, to
create an obligation on the part of other property
owners to reimburse the City and Company for
circulation improvements funded, in whole or in
part, through draws on the Advance. However, the
parties acknowledge that the state of law with
respect to development or impact fees is uncertain
and there is no guaranty that the City will be able
legally to require fees from property owners to pay
Fair Share Fees for already constructed
improvements.
(d)
City's repayment obligations on the Advance shall
expire twenty (20) years from the Effective Date.
3..8 Availability. The Advance shall continue to remain
available for a period of twenty (20) years from the Effective
Date, notwithstanding the completion of all permitted
• development on the Property.
4. Limitation on Further Obligations.
4..1 Financial Obligations. The financial obligations which
Company has agreed to undertake pursuant to this Agreement are
in lieu of any and all other financial obligations of Company
for circulation improvements and are necessary to complete the
Master Plan of Arterial Highways (exclusive, however, of
participation in the funding for construction of the San
Joaquin Hills Transportation Corridor) with respect to the
Property, and fully and irrevocably satisfy the obligations of
City's Traffic Phasing Ordinance, the Fair Share Traffic
Contribution Ordinance and all similar and /or successor
ordinances or requirements. City shall require no reservation
or dedication of land or payment of fees for park and open
space purposes with respect to the Property, or any
circulation improvement necessary to complete the City's
Master Plan of streets and highways, except as expressly
provided in this Agreement.
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4..2 Dedication. Company shall, however, dedicate additional
right of way that may be required by amendments to the
Circulation Element, mitigation measures identified in any
environmental document related to the property„ or problem's
identified in the preparation of construction documents,
unless to do so would require a significant change in the
Development Concept specified for the parcel pursuant to the
applicable PC Text.
5. Open Space and Public Facility Dedications. •
5..1 Company shall dedicate to City the area shown as open
space /public facilities on the Planned Community Development
text for each parcel, with the exception of certain lands on
the San Diego Creek north site that may be necessary for
implementation of the San Joaquin Hills Transportation
Corridor which should be offered for dedication directly to
the Transportation Corridor Agency. The amount and general
location of land to be dedicated is specified in each P C
Text. All parcels shall be offered for dedication to the City
in fee simple, subject only to the conditions and restrictions
specified in Exhibit "F" and the conditions or restrictions
other than the limitations on use specified in the P C Text.
The parcels shall be dedicated in accordance with the schedule
specified in Exhibit "E." The dedication shall be accepted by
City within a reasonable period of time (not to exceed ninety
(90) days) following Company's offer of dedication, provided,
however, any parcel adjacent to or in close proximity to a
proposed future highway or tollway to be funded in whole or in
part with federal funds shall not be accepted by City until
construction of the highway or tollway has commenced, or
Company has elected to waive this restriction, whichever first
occurs. City shall have the right to transfer some or all of
the dedicated property to any public entity, non - profit •
corporation, unincorporated association or other organization
so long as the transfer is conditioned upon, use of the
property in accordance with the limitations specified in the
Planned Community Development Text (or more stringent
restrictions) and the transfer is subject to the conditions
and restrictions described in Exhibit "F." Notwithstanding
the provisions of this Section and the special covenants and
restrictions specified in Exhibit "F ", City and Company may
agree to use up to four (4) of the dedicated parcels for the
purpose of constructing low and /or very low income senior
housing.
5..2 Company acknowledges that the dedication of the property
required by this Agreement is in consideration of the
development rights specified in this Agreement and Planned
Community Development Text, and represents measures adopted by
the City Council to mitigate environmental impacts. Company
also acknowledges that it has received full value for the
property to be dedicated in the form of vested entitlement on
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the various parcels on which development is permitted. City
and company agree that the grant of entitlement in exchange
for dedication satisfies those provisions of the state and
federal constitution that require compensation for any taking
of private property.
5..3 On September 11, 1985, City and Company entered into the
Dedication and Park Agreement for the Mouth of Big Canyon
(Park Credit Agreement). Pursuant to the Park Credit
Agreement, Company dedicated approximately 39.5 acres of
• property commonly known as the Mouth of Big Canyon to City for
open space and park purposes. In consideration of this
dedication, City granted Company 5 acres of park credit to be
applied to dedications that would be required as conditions to
the development on certain parcels known as the 'Credit
Subdivisions.' Some park credit has been applied to offset
dedications otherwise required of development on PCH frontage
(Villa Point Apartments), Big Canyon Area 10, and Big Canyon
Area 16. The property covered by this Agreement represents
substantially all of the parcels to which the remaining credit
could be applied. Company acknowledges that the provisions of
this Agreement do not constitute any breach or violation of
City's duties pursuant to the Park Credit Agreement. Company
waives and gives up any right to compensation for any park
dedication credit it would be entitled to apply to the
Property pursuant to the Park Credit Agreement, and also
waives any right to rescind, in whole or part, its dedication
of the Mouth of Big Canyon to City by virtue of its inability
to apply park dedication credit to the Property covered by
this Agreement. City acknowledges that the remaining park
dedication credit may be applied to the development or re-
development of parcels or property not covered by this
Agreement.
• 5..4 City acknowledges the Company's right to sell any or all
of the parcels subject to this Agreement, to third parties,
including non - profit third parties which may wish to purchase
certain parcels for the purpose of preserving same for open
space uses. City agrees to cooperate with Company and said
third parties, to the extent permitted by law, to effectuate
such transactions and agrees to utilize its offices in good
faith to accommodate the interests of the general public, the
Company and third parties.
6. Development of the Property.
6..1 PrOi eot. The permitted uses and the density or intensity
of development of the Property, the maximum height and size of
proposed buildings, shall be as shown and identified for each
parcel of the Property on the relevant PC Text. City shall
not prevent development of the Property for the uses and to
the density or intensity of development set forth in Planned
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Community Development text. In addition, Company and City
will adhere, to the extent feasible, to the processing
schedule provided in Exhibit 19G.19
6..2 Effect of Agreement on AvOlIcatlons fOr LanG Use
AAvnrovals. In connection with any approval which City is
required, permitted or has the right to give relating to the
Project, or otherwise under its ordinances, resolutions and
codes, City shall not impose any condition or restriction that
prevents Company from developing the Property with the uses
and to the maximum densities and intensities permitted by the
PC Texts. Subject to review for completeness!, City shall
accept for processing and shall timely review and act on all
applications for further land use entitlement approvals with
respect to the Project called for or required under this
Agreement. Company may apply to the City for permits or
approvals necessary to modify or amend the development
specified in the PC Texts provided the request does not
propose an increase in the maximum densities or intensities,
any increase in the maximum height and size of proposed
structures, nor propose a change in use that generates more
peak hour traffic or more daily traffic. Further, the
building locations shall not be significantly altered from
those shown on the PC Text.
6..3 Mello -Roos Community Facilities District. Pursuant to
Chapter 2.5 (commencing with Section 53312) Part I, Division
21 Title 5 of the Government Code of the State of California,
commonly known as the "Mello -Roos Community Facilities Act of
1982," Company may petition City Council to establish one or
more community facilities districts including some or all of
the Property for the purpose of financing Company',s
obligations under this Agreement. City shall have the sole
discretion to determine whether to establish such a district,
the improvements to be financed, and the method.of financing
such improvements.
6..4 Future Discretionary Reviews. City shall retain its
discretionary powers in reviewing applications for project -
related development approvals submitted before the Effective
Date, provided that those powers will be applied in a manner
that is consistent with this Agreement and will not prevent
Company from development of the Project with the land uses,
and to the densities or intensities, permitted by this
Agreement. Except as provided herein, future discretionary
approvals, including but not limited to rezoning, tentative
and parcel map approvals, plot plans and plan development
approvals, shall be consistent with this Agreement and the
relevant P C Text. Nothing in this Agreement shall prevent
City from imposing measures to mitigate significant effects
identified in any environmental document prepared for
development of the Project provided;
kr \circop14.aet 12
0,
•
(a) The measure is not in conflict with the park and
open space or circulation system improvement provisions
of this Agreement;
(b) The measure does not conflict with the provisions of
Section 4 of the Agreement; and
(c) In the event the measure relates to the sighting of
development to avoid a significant effect (as defined in
CEQA), and renders the project infeasible, Company shall
• be entitled to terminate this Agreement pursuant to
Section 7.3.
City shall retain full discretion to impose standard
conditions generally applicable to subdivision or parcel maps,
exclusive of park or open space dedications, improvements
required to complete the circulation element or comply with
any Congestion Management Program or Growth Management Plan
requirements, Fair Share Fees, or Traffic Phasing Ordinance
improvements. The Traffic Study prepared in conjunction with
this Agreement fully satisfies the provisions of the Traffic
Phasing Ordinance for all development authorized by this
Agreement, and no Traffic Study shall be required in
conjunction with any application for approvals or permits
necessary to construct development authorized by this
Agreement so long as the application is consistent with the
provisions of this Agreement and the relevant PC Text. The
City also retains full discretion to impose conditions
pursuant to the site plan review provisions set forth in
Section 20.01.070 of the Newport Beach Municipal Code.
6..5 No Conflicting Enactments. City shall not apply to the
Project any ordinance, policy, rule, regulation or other
measure enacted or effective after the Agreement Date which is
• in conflict with this Agreement. This Section shall not
restrict City's ability to enact an ordinance, policy, rule,
regulation or other measure applicable to the Project pursuant
to California Government Code Section 65866 in accordance with
the procedures specified in Section 7. No moratorium or other
limitation (whether relating to the rate, timing or sequencing
of the development or construction of all or any part of the
Project and whether enacted by initiative or otherwise)
affecting subdivision maps, building permits, occupancy
certificates or other entitlement to use approved, issued or
granted within City, or portions of City, shall apply to the
Project.
6..6 Benefits to Comoang. Company has expended and will
continue to expend substantial amounts of time and money on
the planning and infrastructure construction of the Project.
Company represents and City acknowledges that Company would
not make such expenditures without this Agreement and such
expenditures will be made in reliance upon this Agreement.
The benefit to Company under this Agreement consists of the
kr \6rcop14.agt 13 'G
7.
assurance that Company will preserve the right to develop the
Property as planned. City acknowledges that Company will be
investing money and planning effort in the Projectt in reliance
on City's covenants and representations in this Agreement and
City agrees that Company may reasonably and justifiably rely
on City's covenants and representations in this Agreement and
on the enforceability of this Agreement, except as to the
power of the City to collect fees to repay Company as
specified in subsection 3.6.
6..7 Notwithstanding any other provision of the Agreement, •
the project shall include mitigation measures adopted by the
City Council in conjunction with the approval of this
Agreement and the certification of the Environmental Impact
Report and which are to be satisfied, performed or implemented
by Company. Company shall perform, satisfy or implement all
mitigation measures for which it is responsible at its own
cost and expense. Company expressly waives any rights it may
have regarding limitations on the cost or expense of
mitigating impacts on archeological or paleontological
resources pursuant to Section 21083.2 of the Public Resources
Code as to any portion of the Property not dedicated to the
City for open space or public facilities.
Rules. Regulations and Official Policies.
7..1 New Rules. This Agreement shall not prevent City from
applying to the Project the following rules, regulations and
policies (collectively "Regulations ") adopted or effective
after the Agreement Date, provided that the same are adopted
and applied City -wide:
(a) Procedural Regulations relating to hearing bodies,
petitions, applications, notices, findings, records, •
hearings, reports, recommendations, appeals and. any
other matter of procedure;
(b) Regulations which are not in conflict with this
Agreement; or
(c) Regulations which are in conflict with this
Agreement, if such Regulations have been consented to in
writing by Company.
7..2 Taxes. As
Section 4 of t
assessments and
Date, including
franchise fees,
basis.
iessments and ]fees. Except as limited by
his Agreement, City may impose' such taxes,
fees adopted or effective after the Agreement
but not limited to business license taxes or
on the Project as are imposed on a City -wide
7..3 New Laws. Rules or Regulations. This Section shall
apply in the event either party believes that any county,
kr \0 rcop14.agt 14
state,. or federal law, rule, regulation or plan enacted or
applied after the Agreement Date prevents or precludes
compliance with one or more provisions of this Agreement
(conflicting rule).
(a) Notice and Copies: Either party shall provide the
other Party with: (1) written notice of the existence of
the conflicting rule; (2) a copy of the conflicting rule;
and (3) the reasons why the conflicting rule would
preclude or prevent compliance by that party with one or
• more provisions of this Agreement and any proposed
modification to the Agreement necessary to comply with
the conflicting rule;
(b) Modification Conference: The Parties shall, within
thirty (30) days of the notice required in Section
6.3(a), meet and confer in good faith in a reasonable
attempt to agree on the effect of the conflicting rule
and proposed modifications of this Agreement to conform
with the conflicting rule; and,
(c) Council Hearings: Regardless of whether the Parties
reach any tentative agreement on the matters involved in
the modification conference required by Section 6.3(b)
above, the matter shall be scheduled for a public hearing
before City Council. City shall give at least thirty
(30) days' public notice of such hearing, pursuant to
Government Code Section 65867. City Council, at such
hearing, shall determine the exact modification or
suspension which it believes is necessary to conform the
Agreement to the conflicting rule. Company, at the
hearing, shall have the right to offer oral and written
testimony. Any proposed modification shall be taken by
the affirmative vote of not less than a majority of City
• Council. Within thirty (30) days thereafter, Company
shall either elect, in writing delivered to City, to
accept the modification, or terminate this Agreement.
S. Utility Capacity. City shall use its best efforts to plan
for, and provide (to the extent provided by City to other
developments), sufficient water and local sewer capacity or service
to serve all development of the Property authorized by this
Agreement. City shall require no greater reduction in utility
service to any parcel of the Property than is required by the
general provider of the service. In the event City declares an
utility moratorium, the individual parcels of the Property shall
have priority for utility service over other developments when
service becomes available. Nothing in this Agreement limits City's
ability to impose reasonable conditions on future discretionary
approvals which require Company to install utility lines and
appurtenances servicing the Property.
kr \6rcop14.agt 15
ai
9. Proiect as a Private Undertaking. The development of the
Project is a private development, that neither Partylis acting as
the agent of the other in any respect hereunder, and that each
Party is an independent contracting entity with respect to the
terms, covenants and conditions contained in this Agreement. No
partnership, joint venture or other association of: any kind is
formed by this Agreement. The only relationship between City and
Company is that of a government entity regulating the development
of private property by the owner of such property.
10. Term. The term of this Agreement shall continue until all
permits required for occupancy and operation of the Project as
contemplated by the Project have been issued, and the City has
drawn and repaid all of the Advance, provided that in no event
shall such term exceed twenty (20) years as measured from the
Effective Date. Pursuant to Section 66452.6(a) of the California
Subdivision Map Act, any tentative Subdivision Map approved for the
Property, whether designated a "vesting tentative map" or
otherwise, may be extended by City to the date on which this
Agreement terminates.
11. Amendment or Cancellation of Agreement. Other than
modifications of this Agreement pursuant to Section 7.3, this
Agreement may be amended or canceled in whole or in part only by
mutual written and executed consent of the Parties in compliance
with Government Code Section 65868.
12. Enforcement. Unless amended or canceled as provided in
Section 12, or modified or suspended pursuant to Government Code
Section 65869.5, this Agreement is enforceable by either Party
notwithstanding any change in any applicable general or specific
plan, zoning, subdivision or building regulation or other
applicable ordinance or regulation adopted by City (including by
the voters of City) which purports to apply to any or all of the
Property.
13. Periodic Review of Compliance. City and Companylshall review
this Agreement at least once every twelve (12) months from the
Effective Date in accordance with Sections 65865 and 65865.1 of the
California Government Code. At such reviews, Company shall
demonstrate its good faith compliance with this Agreement. Company
agrees to furnish such evidence of good faith compliance as City,
in the reasonable exercise of its discretion and after reasonable
notice to Company, may require. Company shall be deemed to be in
good faith compliance with this Agreement if City is not entitled
pursuant to Section 14.1 to terminate this Agreement.
kr \circop14.a9t 16
•
22
14. Events of Default.
14..1 Default by Comcanv. Pursuant to California
Government Code Section 65865.1, if City determines following
a noticed public hearing and on the basis of substantial
evidence that Company has not complied in good faith with
Company's obligations pursuant to this Agreement, City shall,
by written notice to Company, specify the manner in which
Company has failed to so comply and state the steps Company
must take to bring itself into compliance. If, within thirty
• (30) days after receipt of the written notice from City
specifying the manner in which Company has failed to so
comply, Company does not commence all steps reasonably
necessary to bring itself into compliance as required and
thereafter diligently pursue such steps to completion, then
Company shall be deemed to be in default under the terms of
this Agreement and City may (a) seek a modification of this
Agreement, (b) terminate this Agreement, or (c) seek any other
available remedies, as provided in Section 14.3.
14..2 Default by City. If City has not complied with any
of its obligations and limitations under this Agreement,
Company shall, by written notice to City, specify the manner
in which City has failed to so comply and state the steps
necessary for City to bring itself into compliance. If,
within thirty (30) days after receipt of the written notice
from Company specifying the manner in which City has failed to
so comply, City does not bring itself into compliance, then
City shall be deemed to be in default under the terms of this
Agreement and Company may (a) seek a modification of this
Agreement, (b) terminate this Agreement, or (c) seek any other
available remedy as provided in Section 14.3. Except as
provided below, if City adopts or enforces any moratorium, de
facto or de jure, or other similar limitation (whether
• relating to the rate, timing or sequencing of the development
or construction of all or any part of the Project and whether
enacted by initiative or otherwise) affecting the processing
or approval of subdivision maps, building permits, occupancy
certificates or other entitlement to use which is applied to
the Project, then Company may immediately seek a modification
of this Agreement, terminate this Agreement, or seek any other
available remedy, as provided in Section 14.3. City shall not
be in default pursuant to this Section if: (a) it adopts a
temporary citywide moratorium on development due to its
inability to supply sufficient water to then current customers
as necessary to maintain minimum levels of health, safety and
sanitation; or (b) it is required to enforce a moratorium
because of a law, rule, regulation or plan identified in
Section 7.3; (c) the enactment of the moratorium or other
limitation is the result of a court order.
14..3 Specific Performance Remedy. Due to the size,
nature and scope of the Project, and due to.the fact that it
may not be practical or possible to restore the Property to
kr\dreop14.a9t
17
13
its natural condition once implementation of this Agreement
has begun, the Parties acknowledge that, except as provided in
Section 14.4, money damages and remedies at law generally are
inadequate and that specific performance is appropriate for
the enforcement of this Agreement. Except asi provided in
Section 14.4, the remedy of specific performance or, in the
alternative, a writ of mandate, shall be the sole and
exclusive legal remedy available to either party, in the event
of the default, or alleged default, by the other.
14..4 Repayment of Advance Mon Termination.
A. Amount of Reimbursement. If Company elects to
terminate this Agreement as provided under Paragraph 7.3
or 14.2, City shall reimburse Company the total of (a)
any outstanding and unpaid draws against the Advance, and
(b) any prepaid Fair Share Fees attributable to parcels
of the Property for which no building or grading permit
has been issued as of the date of termination
( "Reimbursement Amount "). City shall pay no interest on
the Reimbursement Amount, or any portion thereof.
B. Termination Pursuant to 7.3. If Company terminates
pursuant to Paragraph 7.3, City shall pay Company
seventy -five percent (75 %) of the Fair Share Fees
collected until Company is reimbursed the Reimbursement
Amount or City's reimbursement obligation terminates
pursuant to Subsection 3.7(d).
C. Termination Pursuant to 14.2. If Company terminates
pursuant to Paragraph 14.2, City shall reimburse Company
the Reimbursement Amount from a combination of Fair Share
Fees and the General Fund. The intent of the parties is
to provide for General Fund reimbursement of the
Reimbursement Amount in proportion to the percentage of
development not constructed as of the date of
termination. The portion to be reimbursed from the
General Fund shall be calculated as follows:
Reimbursement Average Daily Trips Attributable
Amount X to Parcels not Developed as of
Termination
Total Average Daily Trips for
the Project
That portion of the Reimbursement Amount due from the
General Fund shall be paid in four (4) equal annual
installments beginning on September 1st of the fiscal
year following the date of termination. City shall also
pay to Company seventy -five percent (75 %) of the Fair
Share Fees collected from the date of termination until
the remainder of the Reimbursement Amount has been fully
repaid or City's reimbursement obligation terminates
kr \0 rcop14.agt 18
•
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u
pursuant to Subsection 3.7(d). For purposes of this
Subsection, the term "parcels not developed" shall mean
those parcels for which Company has not received building
permits for the development permitted pursuant to this
Agreement, commenced construction of that development,
and expended a substantial sum of money during the course
of construction. The average daily trips for parcels
partially developed shall be prorated.
•15. Cooperation. Each Party covenants to take such reasonable
actions and execute all documents that may be necessary to achieve
the purposes and objectives of this Agreement.
16. Force Maieure. Neither Party shall be deemed to be in default
where failure or delay in performance of any of its obligations
under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other
Acts of God, fires, wars, riots or similar hostilities, strikes or
other labor difficulties, State or Federal regulations, or court
actions. Except as specified above, nonperformance shall not be
excused because of the act or omission of a third person.
17. Notices. Any notice or demand which shall be required or
permitted by law or any provision of this Agreement shall be in
writing and if the same is to be served upon a Party, may be
personally delivered to the Party, or shall be deposited in the
United States mail, certified, return receipt requested, postage
prepaid, or shall be delivered by overnight courier, overnight
courier charges prepaid, and shall be addressed as follows:
TO CITY: City of Newport Beach
• 3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
TO COMPANY: The Irvine Company
550 Newport Center Drive
Newport Beach, California 92660 -0015
Attn: General Counsel
With copies to: Latham & Watkins
650 Town Center Drive
Costa Mesa, California 92626 -1918
Attn: Robert K. Break
kr \c1rcop14.igt 19
i
Irvine Pacific
550 Newport Center Drive
Newport Beach, California 91660 -0015
Attn: President
Either Party may change the address stated herein by notice to the
other Party in the manner provided in this Section, and thereafter
notices shall be addressed and submitted to the new address.
Notice shall be deemed to be delivered upon the earlier of (a) the
date received or (b) three (3) business days after di =posit in the
mail as provided above.
18. Transfers and Assignments.
18..1 Riaht to ASSian. Company shall have the right to
sell, lease, transfer or assign the Property in whole or in
part (provided that no such partial transfer shall cause a
violation of the Subdivision Nap Act, Government Code Section
66410, et seq.) to any person, partnership, joint venture,
firm or corporation at any time during the term of this
Agreement without prior notice to City; provided, however,
that any such sale, lease, transfer or assignment shall
include the assignment and assumption of the rights, duties
and obligations arising under or from this Agreement to the
transferee with respect to that part of the Property
transferred. Company shall no longer be obligated under this
Agreement as to that part of the Property which was sold,
leased, transferred or assigned if Company is not in default
under this Agreement at the time of the sale, lease, transfer
or assignment. In no event, however, shall Company be
relieved from its obligations hereunder to prepay the Fair
Share Fees, or to fulfill its obligations pursuant to
Sections 2, 31 4 and 5 of this Agreement.
18..2 Binding on successors and Assigns. The burdens of
this Agreement are binding upon, and the benefits of this
Agreement inure to, all successors in interest of the parties
to this Agreement, and constitute covenants which run with the
Property. In order to provide continued notice thereof, this
Agreement and all amendments thereto will be recorded by the
Parties.
19. Exhibits. The following documents are attached hereto and
incorporated herein by this reference:
Exhibit
Designation Description
01A" Legal Description of the Property
kr \c1rcop14.a9t 20
0
•
"B" Depiction of the Property
"C" Frontage Improvements
"D" Development Plan (Including Density and
Intensity of Development)
"E" Open Space Dedication
"F" Open Space Dedication Conditions
• "G" Processing Schedule
"H" List of PC Texts
20. Rules of Construction and Miscellaneous Terms.
20..1 gender. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is
mandatory, "may" is permissive.
20..2 Time of Essence. Time is of the essence regarding
each provision of this Agreement in which time is an element.
20..3 waiver. Failure by a Party to insist upon the
strict performance of any of the provisions of this Agreement
by the other Party, and failure by a Party to exercise its
rights upon a default by the other Party hereto, shall not
constitute a waiver of that Party's right to demand strict
compliance by such other Party in the future.
• 20..4 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be identical and may
be introduced in evidence or used for any other purpose
without any other counterpart, but all of which shall together
constitute one and the same Agreement.
20..5 Entire Agreement. This Agreement constitutes the
entire agreement and supersedes all prior agreements and
understandings, both written and oral, between City and
Company with respect to the subject matter hereof.
20..6 severability. If any provision of this
Agreement or the application thereof to any party or
circumstances shall be held invalid or unenforceable to
any extent, the remainder of this Agreement or the
application of such provision to persons or circumstances
other than those as to whom or which it is held invalid
kr \circopib.agt 21 Zi
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I
or unenforceable, shall not be affected thereby, and each
provision of this Agreement shall be valid and
enforceable to the—fullest extent permitted by 'iaw.
20..7 Construction. This Agreement has been 'drafted after
extensive negotiation and revision. Both Company and City are
sophisticated parties represented by independent counsel
throughout the negotiations. City and Company each agree and
acknowledge that the terms of this Agreement are fair and
reasonable, taking into account their respective purposes,
terms and conditions. In accordance with the foregoing, this
Agreement shall be construed as a whole in accordlance with its
fair meaning and no principle or presumption, of contract
construction or interpretation shall be used to'construe the
whole or any part of this Agreement in favor of or against
either City and Company.
20..8 No Third Party Beneficiaries. The only parties to
this Agreement are City and Company. There are no third party
beneficiaries and this Agreement is not intended and shall not
be construed to benefit or be enforceable by any other person
whatsoever.
20..9 Governina Law. This Agreement and any dispute
arising hereunder shall be governed by and interpreted in
accordance with the laws of the State of California.
20..10 section Headings. All Section headings and
subheadings are inserted for convenience only and shall not
affect any construction or interpretation of this Agreement.
20..11 Incoruoration of Recitals and Exhibits. Recitals A
through H and attached Exhibits MA00 through $@BID are hereby
incorporated herein by this reference as though fully set
forth in full.
21. Authority to Execute. The persons executing this Agreement
warrant and represent that they have the authority to ,execute this
Agreement on behalf of the entity for which they are executing this
Agreement, and further warrant and represent that they have the
authority to bind their respective Party to the performance of its
obligations hereunder.
22. Recordation. This Agreement and any amendment or modification
hereto or cancellation hereof shall be,recorded in the Office of
the County Recorder of the County of Orange, by the City Clerk
within the period required by Section 65868.5 of the Government
Code.
•
kr\circop14.e9t , 22 A
SIGNATURE PAGE TO
tOVEMENT AND OPEN SPACE
THE IRVINE COMPANY
A Michigan corporation
• By:
Its:
r�
By:
Its:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Its: Mayor
ATTEST:
ty Clerk
APPROVED AS TO FORM:
Robert H. Burnham
City Attorney
kr \circop14.agt 23 X
EXHIBIT 'A"
CIRCULATION IMPROVEMENT AND OPEN
SPACE AGREEMENT
I
DATE:
09/04/92
#
PROPERTY
GROSS
ACRES
GENERAL PLAN
ENTITLEMENT
1.
San Diego Creek South
21.0
Residential — 300 D.U.
2.
San Diego Creek North
14.7
Office - 112,000 S.F.
3.
Jamboree /MacArthur
4.7
Office — 50,000 S.F.
4.
Upper Castaways
56.6
Residential — 151 D.U.
5.
Bay View Landing
16.1
Restaurant — 10,000 S.F or
Health Club — 40,000 S.F.
6.
Newporter North
77.2
Residential — 212 D.U.
7.
Block 800
6.4
Residential — 245 D.U.
8.
Corporate Plaza West
9.0
Office •- 94,000 S.F.
9.
Freeway Reservation
28.3
Residential — 76 D.U.
10.
Newporter Knoll
12.0
Open Space
11.
Newporter Resort
— — — —
Hotel — Additional 68 Rooms
12.
Newport Village
from library to San Miguel)
12.8
Administrative /Professional
Financial — 0 S.F.
TOTAL
258.8
I
I
30
•
•
EXHIBIT "B"
Newport Beach Undeveloped Sites
CIRCULATION IMPROVEMENT AND OPEN SPACE AGREEMENT
N
EXHIBIT 'C'
CIRCULATION IMPROVEMENT AND OPEN SPACE AGREEMENT
FRONTAGEIMPROVEMENTS
DATE:
05/29/92
1
0
3y
FRONTAGE IMPROVEMENTS TO BE:
ESTIMATED
#
PROPERTY
CONSTRUCTED OR BONDED FOR
COST $
WITH PROJECT DEVELOPMENT
1.
San Diego Creek South
Jamboree Road/University Drive frontage
$400,000.
and intersection improvements.
2.
San Diego Creek North
None
—0-
3.
Jamboree/MacArthur
None
—0-
4.
Upper Castaways
Provide R.W. and grade for ultimate width
of Dover along property frontage.
$600,000.
5.
Bay View Landing
None
—0—
6.
Newporter North
Construct frontage improvements along
$300,000.
Jamboree at access to property.
7.
Block 800
Install traffic signal at Santa Cruz/
$130,000.
San Clemente intersection.
8.
Corporate Plaza West
None
—0-
9.
Freeway Reservation
Construct 1/2 section of MacArthur to
$1,260,600
ultimate width along frontage of
developed portion of property.
10.
Newporter Knoll
None
—0—
11.
Newporter Resort
None
—0-
12.
Other Projects
A. Construct 1/2 section of McArthur
$807,000
to ultimate width along frontage of
TIC owned property at Newport Village.
B. Construction 1/2 section of MacArthur
$1,308,200
to ultimate width along frontage of Big
Canyon Area 16 presently bonded for.
TOTAL
$4,806,000
1
0
3y
EXHIBIT 'D'
CIRCULATION IMPROVEMENT AND OPEN SPACE AGREEMENT
DEVELOPMENT AREA
• DATE:
09/04/92
•
#
PROPERTY
DEVELOPMENT
DEVELOPMENT
AREA(ACRES)
1.
SAN DIEGO CREEK SOUTH
Residential — 300 D.U.
18.4
2.
SAN DIEGO CREEK NORTH
Open Space
—0-
3.
JAMBOREE/MAC ARTHUR
Open Space
—0-
4.
UPPER CASTAWAYS
Residential — 151 D.U.
Senior Residential — 120 D.U.
26.0
4.8
5.
BAY VIEW LANDING
Open Space
—0-
6.
NEWPORTER NORTH
Residential — 212 D.U.
30.0
7.
BLOCK 800
Residential — 245 D.U.
6.4
8.
CORPORATE PLAZA WEST
Office — 94,000 S.F.
9.0
9.
FREEWAY RESERVATION
North Area
South Area
Residential — 36 D.U.
Residential — 12 D.U.
7.5
3.5
10.
NEWPORTER KNOLL
Open Space
—0-
11.
NEWPORTER RESORT
Hotel — Additional 68 Rooms
onsite
12.
NEWPORT VILLAGE
from libra to San Miguel)
Open Space
—0—
TOTAL
106.0
33
EXHIBIT 'E'
CIRCULATION IMPROVEMENT AND OPEN SPACE AUKt:FMENT
OPEN SPACE DEDICATION
GATE:
09/04(92
#
PROPERTY
OPEN SPACE
ACRES TO BE
DEDICATED 4
TIMING OF
DEDICATION
1.
SAN DIEGO CREEK SOUTH
2.6
(3)
2.
SAN DIEGO CREEK NORTH
8.6
(3)
3.
JAMBOREE /MAC ARTHUR
4.7
(3)
4.
UPPER CASTAWAYS
25.8
(2)
5.
BAY VIEW LANDING
16.1 (A)
(1).
6.
NEWPORTER NORTH
47.2
(2)
7.
BLOCK 800
-0-
N/A
8.
CORPORATE PLAZA WEST
-0-
N/A
9.
FREEWAY RESERVATION
North Area
South Area
17.3
-0-
(2)
N/A
10.
NEWPORTER KNOLL
12.0
(1)
11.
NEWPORTER RESORT
-0-
N/A
12.
NEWPORT VILLAGE
from rary to San Miguel)
12.8
(4)
TOTAL
146.9
(A) In conjunction with the dedication of lower Bayview Landing for
open space, an additional $0,000 S.F. of retail shall be permitted in
Fashion Island.
(1) Open Space to be dedicated upon Effective Date of Agreement.
(2) Open Space to be dedicated upon issuance of first building permit.
(3) Open Space shall be offered for dedication upon Issuance of East
building permit of all Projects contained in this Agreement.
The Company may elect to waive this condition.
(4) Open Space area to be dedicated upon issuance of first building
permits for both Upper Castaways and Newporter North.
•
is
3`i
EXHIBIT "F"
OPEN SPACE
The parcels) to be dedicated /conveyed to the City will be
transferred (a) without any warranty concerning suitability for
City's intended use of the property, (b) without any warranty
concerning the absence of hazardous or toxic materials, (c) subject
• to standard CLTA exceptions to title, (d) subject to existing
encroachments and easements of record or apparent as of the date of
this Agreement, and (e) subject to the following reservations and
covenants: (1) a reservation of ground water and mineral rights,
but without surface entry; (2) a reservation of easements as needed
for installation of utilities required to serve development on
other properties (e.g. a drainage easement across Newporter North) ,
to perform habitat mitigation in or adjacent to environmentally
sensitive habitat areas to mitigate for development impacts on
development parcels, for reburial of disturbed native American
remains on Newporter North, for public rights -of -way, and for
temporary construction access and staging; and (3) covenants that
the parcel(s) will be used consistent with the PC Texts, that the
Company will have the right to review and comment on park plans and
improvement plans, that the City will not require the Company to
provide, directly or indirectly, for parking related to public use
of the conveyed lands, that the City will maintain the lands in a
safe and attractive condition, and that the City will not abandon
the conveyed parcels nor transfer them to a third party for any
development purpose.
Notwithstanding the foregoing:
1. Company shall complete, to City's satisfaction, a remediation
• program for the removal of known petroleum products or
hazardous wastes on the Bayview Landing Parcel prior to
dedication. Company shall diligently pursue the remediation
program to completion so that timing of the dedication is not
affected.
2. To facilitate the widening of Dover Drive or access to the
park or open space on Castaways, the City may convey to the
Lutheran Church a portion of the dedicated parcel on the south
side of the Church property. The amount of property conveyed
to the Church in the event Dover Drive is widened shall, at a
minimum, provide replacement parking for spaces lost as a
result of a widening. Any conveyance to the Church to provide
replacement parking shall be conditioned on the Church's
conveyance of Dover Drive frontage necessary to accommodate
the widening to Master Plan standards.
3. Company shall have the right to waive any and all of the
reservations or covenants with respect to any parcel to be
dedicated so long as the proposed use of the property is
consistent with the PC Text.
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-011
all
ORDINANCE DATE OF
PLANNED CONUMNITY X'I' NO, AMMON
1. North Ford
San Diego Creek South
(Baypointe Amendment)
2. San Diego Creek North and
Jambaoree&bcarthur
3. Upper Castaways.
4. Bayview Landing
5. Newporter North
6. Block 800 (Newport Center)
• 7. Corporate Plaza West
8. Freeway Reservation
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