HomeMy WebLinkAbout9737 - Tentative Tract 10019 Settlement & StipulationRESOLUTION NO. 9737
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING THE SETTLEMENT
AGREEMENT AND STIPULATION FOR JUDGMENT
RESOLVING THE LITIGATION BETWEEN THE IRVINE
COMPANY AND THE CITY OVER THE DISAPPROVAL OF
TENTATIVE TRACT NO. 10019
WHEREAS, the City Council disapproved the Tentative
Map for Tract No. 10019 (hereinafter referred to as "Tentative
Map No. 10019 ") ; and
WHEREAS, The Irvine Company commenced litigation in
the Orange County Superior Court, Case No. 32- 18 -70, in regard
to the denial of Tentative Map No. 10019; and
WHEREAS, on December 11, 1979, the City completed
its consideration and amendment to the-General Plan of the City
of Newport Beach which modified the allowable land uses of the
North Ford site, the location of Tentative Map No. 10019; and
WHEREAS, the City, City staff, The Irvine Company and
representatives of The Irvine Company have met and negotiated
a Settlement Agreement and Stipulation for Judgment in regard
to the amended land uses for the North Ford site, which Settle-
ment Agreement and Stipulation for Judgment is found by the
City Council to be fair and equitable and in the best interest
of both parties,
NOW, THEREFORE, BE .IT RESOLVED by the City Council of
the-City of Newport Beach that the Settlement Agreement and
Stipulation for Judgment, a copy of which is attached hereto,
' be and is hereby approved, and the Mayor and City Attorney are.
authorized to execute same on behalf of the City and cause the
Settlement Agreement and Stipulation for Judgment to be
filed with the Orange County Superior Court.
# & ADOPTED this 25th day of February, 1980.
ATTEST:
City Clerk
j CERTWIED THE ORIGINAL
CITY CLERK OF THE CITY OF NEWP BEAC14
®ATII, ___FE j ? 7 1980
is
Z "C'x%
Mayor
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HRC /kv
2/26/80
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f.ATHAU A WATKWB
AY RNRTR AT LAW
NEWMRT BEACH
LATHAM & WATKINS
George A. Rice
Robert K. Break
660 Newport Center Drive
Suite 1400
Newport Beach, California 92660
(714) 752 9100
Attorneys for Petitioner
FIVER
FEB 26 n 0
LEE A 8- , wCi I inty Clerk
By puty
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
THE IRVINE COMPANY,
a Michigan corporation,
Petitioner,
VS.
THE CITY OF NEWPORT BEACH,
a municipal corporation,
Respondent.
CASE NO. 32-18 -70
SETTLEMENT AGREEMENT AND
STIPULATION FOR JUDGMENT
Y
THIS SETTLEMENT AGREEMENT AND STIPULATION FOR JUDGMENT
( "Stipulation ") is entered February 25, 1980, between THE CITY OF
NEWPORT BEACH, a Municipal corporation ( "City "), and THE IRVINE
COMPANY, a Michigan corporation ( "Irvine Company ").
It is expressly understood and agreed between the par-
ties, and should be understood by all others who read this Stipu-
lation, that this constitutes the negotiated settlement of a
lawsuit which arises from the disapproval of the Tentative Map for
Tract No. 10019 (hereinafter "Tentative Map No. 10019 ") by the
City Council on September 10, 1979. The negotiations were carried
out by the City Staff and the City Council in a good faith effort
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I.ATBAN WATKINS
ATTORNEYS AT LAW
NEWMRT BEACH
to protect the interests of the City and its .citizens while at the
same time avoiding any unnecessary injury to the private interests
involved with the project that was the subject of that lawsuit. By
settling this matter and entering into this Stipulation, the
parties indicate their resolution to deal fairly and in good faith
with respect to all aspects of the development which will occur as
a result of the settlement; and to take all actions reasonably
necessary to effect the spirit and intent of this Stipulation.
That spirit and intent can be summed up as a desire to see the
full development contemplated by this Stipulation completed and
occupied in the ordinary course of business with as much expedition
and speed, and as little financial loss to the City and Irvine
Company as is possible. It is expressly agreed that no special or
extraordinary advantage has been or will be accorded to the Irvine
Company as a result of the commencement or termination of this
litigation. This Stipulation shall not be interpreted to indicate
that the City might settle any other lawsuit or claim in this
manner. Further, the understandings which appear in this Stipula-
tion apply only to this matter and not to any other landowner or
developer, and no City policy or precedent, applicable to others,
is established by the provisions of this Stipulation.
INTRODUCTION
1. Disputes and differences have arisen between the
City and Irvine Company.
2. The disputes and differences of the City and Irvine
Company concern the development of the property commonly known as
"North Ford," and arise out of the City Is disapproval of Tentative
Map No. 10019 on September 10, 1979. At the time of that
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I I disapproval, North Ford was zoned as a Planned Community with an
• 2 allowable density of 675,000 square feet of light industrial space
3 and 28,500 square feet of commercial retail space.
4 3. On December 11, 1979, the City completed its recon-
5 sideration of the allowable uses of the North Ford site, and deter-
6 mined to reduce the intensity of land use development allowable in
7 the City's General Plan for that site (295,000 square feet of light
8 industrial space, 28,500 square feet of neighborhood commercial
9 retail space, and 120 residential dwelling units).
10 4. The parties have discussed their disputes and
11 differences in great detail and, as a result of those discussions,
12 believe that a full and complete settlement of those disputes and
13 differences will be to the benefit of all parties concerned and in
14 their mutual best interests. City asserts that each and every one
15 of its acts with regard to the disapproval of Tentative Map No.
16 10019 has been and is legally correct, required and supportable.
17 City has not yet filed a cross complaint in this matter. Irvine
18 Company asserts that the disapproval of Tentative Map No. 10019 is
19 not legally supportable. Neither party by this Stipulation makes
20 any admission as to the validity or invalidity of any claim made
21 or potentially available against the other party.
22 5. By this Stipulation the parties intend to lay to
23 rest any potential as well as existing litigation, claims of
24 damages and all other assertions as to rights and privileges which
25 could have been judicially determined in this action relative to
26' North Ford and to define and agree upon their respective rights
27 and duties with respect to that project. The parties hereto agree
28 to a waiver of the provisions of Civil Code section 1542.
.ATNAN S WATKINS
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6. Each party agrees that it, its officers.and
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employees will use their best efforts and take all steps reasonably
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possible to assure full compliance -with the spirit, intent and
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purpose of this Stipulation so that the balance of the project may
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be built and sold as defined in this Stipulation without further
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delay or interference to any party.
7. Each has
of the parties earlier acknowledged and
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agreed that the settlement of their differences is mutually bene-
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ficial. Said benefits may be summarized as follows:
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(a) Elimination of the lawsuit asserted against
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the City;
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(b) Elimination of further lawsuits between the
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parties concerning the North Ford site;
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(c) Savings of extensive repetition of matters
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already carefully and fully considered by the City Staff, the.
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Commissions and the City Council, which savings will be partic-
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ularly beneficial in that the City may now devote time to
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numerous other important matters of City business;
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(d) Realization of numerous goals deemed worthwhile
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by the City, including significant reduction in density of
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development in the project, significant reduction in the
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amount of increased traffic in the City, and addition of new
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housing and industrial opportunities for the City;
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(e) Reduction of loss of earnings, loss of property
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and property value, and the right to conduct business in a
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lawful manner;
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(f) Assurance that the City will use its best
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efforts to assist in completing the project;
LATBAM & WATYME
ATTOANETE AT LAW
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(g) Assurance that Irvine Company will complete
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the project according to the City's desires, particularly
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with respect to the residential portions; and
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(h) The benefits which accrue from mutual helpful,
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cooperative efforts so that construction and sale of the pro -
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ject can be accomplished with a minimum of further lost time
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and investment.
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All of the foregoing provisions are a part of this Agreement and
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the parties further agree as follows:
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STIPULATION
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8. The City Council shall reassume jurisdiction over
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Irvine's application for approval of Tentative Map No. 10019 and,
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upon proper notice, reconsider that application. Full, complete
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and sufficient review by the City Staff, the City Planning Commis -
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sion and the City Council of Tentative Map No. 10019 and the envi-
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ronmental impact report prepared for that project has previously
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occurred. Upon resumption of jurisdiction over Tentative Map
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No. 10019, the City Council shall approve Tentative Map No. 10019,
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subject to the conditions and matters set forth in paragraph 9, in
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that it has determined:
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(a) That the proposed map is consistent with
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the applicable general plan and the industrial phase of
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development it permits is consistent with the applicable
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zoning.
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(b) That the design or improvement of the
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proposed subdivision is consistent with the applicable
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general plan.
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LATAIM &
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(c) That the site is physically suitable for
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the type of development.
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(d) That the site is physically suitable for
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the proposed density and intensity of development.
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(e) That the design of the subdivision or the
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proposed improvements is not likely to cause substantial
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environmental damage or substantially and avoidably
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jure fish or wildlife or their habitat.
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(f) That the design of the subdivision or the
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type of improvements is not likely to cause serious pub -
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lic health problems.
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(g) That the design of the subdivision or the
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type of improvements will not conflict with easements,
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acquired by the public at large, for access through or
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use of, property within the proposed subdivision.
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(h) That an Environmental Impact Report
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( "EIR ") on the original project was certified as complete
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by the City Council on September 10, 1979.
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(i) That the contents of the certified Final
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EIR have been considered in the decisions on this project,
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(j) That based on information contained in
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the certified EIR the original project has been revised
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by the selection of a feasible alternative concept des -
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cribed therein, which would substantially lessen any
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significant effects the original project would have had
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on the environment.
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(k) That based on the information contained
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in the certified Final EIR, while the project may have a
I.ATBAH S WATKINS
AT uN6Y8 AT
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UT-" B WATMNA
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significant environmental impact, the revised project
incorporates mitigation measures and land use concepts
to substantially reduce potentially significant environ-
mental effects. Further, that the economic and social
benefits to.the community override any presently antici-
pated negative environmental effects of the project.
(1) That a traffic phasing plan for the
development of the 295,000 square feet of industrial
development and 120 dwelling units approved by this
Stipulation shall not be required.
9. The City's approval of Tentative Map No. 10019 shall
be conditioned upon only those 6 Notes and 66 conditions attached
by the City Planning Commission on August 16, 1979, except as modi-
fied as follows:
(a) Condition 6 is amended to insert the words
"and bicycle" between the words "pedestrian" and "circu-
lation."
(b) The first sentence of Condition 51 is
amended to read: "That noise generated from rooftop
mechanical equipment shall not exceed 45 dBA when
measured at the boundary of the project or any residen-
tial property line."
(c) Condition 66 is amended to read: "That
Lots 9 and 10 shall not be developed until the Planned
Community Development Plan is amended to be consistent
with the current General Plan to provide for development
of 120 residential dwelling units on those lots. ".
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(d) A new condition 67 is added to read: "No
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occupancy permits shall be given for occupancy of any
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buildings developed on Lots 1 through 8, inclusive, until
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CC&R's in a form satisfactory to the Newport Beach City
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Attorney have been recorded on the property restricting
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Lots 9 and 10 to residential uses, which CC&R's shall be
enforceable by the City.."
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(e) A new condition 68 is added to read:
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"Lot 1 is not to be developed until a traffic phasing
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plan for said lot under the standards for excepted
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planned communities is approved or the Traffic Phasing
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Ordinance is repealed."
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(f) A new Condition 69 is added to read:
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"That tentative tract boundary along Bison Avenue shall
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coincide with that on parcel map filed with Resubdivision
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629."
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(g) A new Condition 70 is added to read:
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"That an 8 foot wide sidewalk be constructed on the
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easterly side of Camelback Street between Bison Avenue
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and Street 'B'."
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(h) A new Condition 71 is added to read:
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"That an 8 foot wide sidewalk be constructed on both
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sides of Street W between Camelback Street and Street
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A, „
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(i) A new Condition 72 is added to read:
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"That $40,000 be contributed to the construction of a
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sound attenuation wall for the community of Eastbluff
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along Jamboree Road."
,ATNIN &
WATKINS
AT INETE
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LATHE R WATNINR
ATTCRNEYE AT LAW
NEWPORT BEACH
(j) Note 6 is amended to read: "Lots 9 and
10 may not be developed until further resubdivision is
approved."
Irvine Company acknowledges that the street improvements called
for in Conditions 14 and 18 include 10 foot wide sidewalks.
10. City shall immediately process by appropriate notice
hearings and proceedings an amendment to the Planned Community
Development Standards for the North Ford site to conform the zoning
for that site with the City's adopted General Plan to permit devel-
opment of not more than 120 residential dwelling units on Lots 9
and 10. Irvine Company shall immediately begin preparing neces-
sary plans and a proposed tentative map to further subdivide Lots
9 and 10 into not more than 120 residential dwelling units. As
soon after amendment of the zoning for the North Ford site required
by this paragraph as is reasonably possible, Irvine Company shall
apply for approval of a residential tentative map for Lots 9 and
10. City agrees that, with regard to such zoning amendment and
further subdivision:
(i) The certified Environmental Impact Report
previously accepted with regard to Tentative Map
No. 10019 is applicable and acceptable, and that no fur-
ther adverse impacts not otherwise mitigated will occur
with regard to this proposed residential development.
The City may require an addendum to address on -site
conditions associated with residential development.
(ii) Only such conditions as are usually cur-
rently applicable to such residential subdivisions shall
be imposed as a prerequisite to approval. City will
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I.ATNAX & WATKINS
AWIENEY9 AT LAW
PIENMRT 9EALH
impose no conditions for off -site improvements except as
set forth below.
(iii) City shall take no action to further
reduce the number of residential dwelling units that may
be constructed on Lots 9 and 10, and at Irvine Company's
option Irvine Company may build up to 120 residential
dwelling units on those lots.
Irvine Company agrees to the following off -site conditions and
matters with regard to the further subdivision of Lots 9 and 10:
(a) Irvine Company shall notify each purchaser
of the individual residential properties that an exten-
sion of the Corona del Mar Freeway may constructed in
the future which might affect the property.
(b) City may require construction of an 8
foot wide sidewalk on the westerly side of Camelback
Street between Bison Avenue and Jamboree Road, provided
City has sufficient right =of -way therefor.
11. Upon approval of Tentative Map No. 10019, Irvine
11 Company may request and be granted by City grading permits to grade
the entire North Ford site including Lots 9 and 10 subject to the
reasonable conditions of approval of that tentative map and current
Newport Beach grading ordinances. City agrees that the approval
of this Stipulation and of Tentative Map No. 10019 as herein condi-
tioned, considered by the City Council, and finally approved shall
totally define the density and intensity and type of development
of the North Ford site referred to in this Stipulation. Irvine
Company shall commence construction of the residences no later
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I.ATA" A WAr�s
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than eighteen (18) months after issuance of the certificates of
occupancy for 252,858 square feet of the industrial buildings.
12. City agrees that it has considered the project
contemplated in this Stipulation and is satisfied that the density,1
intensity, types of uses contemplated, and phasing of construction
are acceptable to it and shall be binding upon it as a vested .
interest of Irvine Company.
13. Irvine Company agrees that it has fully studied and
considered the project contemplated in this Stipulation, that it
is satisfied in all respects with the density, types of uses, and
phasing of construction contemplated for the North Ford site in
this Stipulation and that this Stipulation shall be binding upon
its successors in interest in all respects.
14. Irvine Company and City agree that each shall do
all that is necessary to carry out the terms and conditions of
this Stipulation. Both parties agree that any conditions for the
final approval of the tentative map further subdividing Lots 9 and
10 for residential development shall include only those normally
associated with such developments in the City of Newport Beach at
this date, and shall include no others.
15. This Stipulation is intended to be binding on Irvine
Company and the City. Both parties acknowledge that careful consid-
eration has been given to this matter and that in exchange for a
decrease in the density and intensity of the development, the
agreement to phase and complete construction and the termination
of litigation, City is willing to offer to Irvine Company and
Irvine Company accepts the terms and conditions of construction of
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LATHIM & WATKINS
ATfOA..e S AT LAW
NCW.^ RT BEACH
the industrial phase, delay of the commercial service phase, and
construction of the residential phase.
16. Except for minor variations agreed to between the
parties, the terms and conditions of this Stipulation may be modi-
fied only upon a specific finding made and accepted by Irvine
Company, City and the Superior Court of the State of California,
County of Orange on each of the following:
a. The specific term or condition is impossible to
fulfill because of a legal impediment;
b. The alternative available to the specific term or
condition is legally permissible;
c. The basic intent and substance of this Stipulation
shall not be adversely affected.
17. This Stipulation is hereby authorized by resolution
of the City Council of the City of Newport Beach. Irvine Company
represents and warrants that it has fully authorized the execution
of this Stipulation. The Superior Court of the County of Orange,
State of California, is requested to enter this Stipulation as a
Judgment in the matter of The Irvine Company vs. The City of
Newport Beach, Orange County Superior Court Case No. 32- 18 -70.
Findings of Fact and Conclusions of Law are hereby waived. Each
party to bear its own costs and attorney fees.
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IATHAM $ WAT8,H6
A'wwt: EY9 AT LAW
NEW.MRT BEACH
Executed this 2c� day of yQ7-i2u�iey , 1980 at
Newport Beach, California.
Approved as to form and
content:
as to form and
tent:
IS SO ORDERED.
February ji, 1980
TH RVINE COMPANY
B `- -
President
LATHAM & WATKINS
By �0 w `f K . 7B rA-o-L-
Attorneys for The Irvine Co.
CITY OF NEWPORT BEACH
yor
By
ugh ity Attorney
PIZER & MICHAELSON, INC.
By
Barry S. Michaelson,
Special Counsel, City of
Newport Beach
ORETTA FERRI SEARS
JUDGE OF THE SUPERIOR COURT
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