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HomeMy WebLinkAbout2012-19 - Affordable Housing ImplementationRESOLUTION NO. 2012 -19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AFFORDABLE HOUSING IMPLEMENTATION PLAN AND MEMORANDUM OF AGREEMENT, AND WAIVING THE REQUIREMENT OF A DEVELOPMENT AGREEMENT FOR THE SANTA BARBARA CONDOMINIMUM PROJECT AT 900 NEWPORT CENTER DRIVE (PA2012 -012) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1: STATEMENT OF FACTS 1. On January 10, 2006, the City Council adopted Resolution No. 2006 -2, approving an application by Lennar Homes for the development of 79 condominium units at 900 Newport Center Drive. 2. Resolution No. 2006 -2 includes Condition No. 5, which establishes the requirements for the project to meet the affordable housing requirements in the City's Housing Element. 3. On July 25, 2006, the City Council approved a comprehensive update to the General Plan, including changes in affordable housing requirements under an updated Housing Element. 4. On March 27, 2007, the City Council adopted Ordinance No. 2007 -6, amending provisions under which development agreements shall be required for residential projects to implement new policies and land use changes in the General Plan. 5. On August 14, 2007, the City Council adopted Resolution No. 2007 -058, approving an Affordable Housing Implementation Plan (AHIP) that complied with the requirements of the updated Housing Element as satisfaction of Condition No. 5. The resolution also approved a Memorandum of Understanding (MOU) establishing an agreement between the City and Lennar Homes that a development agreement would be prepared vesting rights to develop the project as approved and establishing a public benefit contribution to the City in the amount of $5 million. 6. On May 11, 2010, the City Council adopted Ordinance No. 2010 -9, adding Chapter 19.54 (Inclusionary Housing) to the Municipal Code implementing Housing Program 2.2.1 of the Housing Element. The Chapter allows alternatives to on -site construction of affordable housing, including the payment of in -lieu housing fees for projects of more than 50 units subject to the approval of an AHIP. 7. Lennar Homes is no longer associated with the project and New Home Company Southern California, LLC ( "New Home Company "), has requested approval of an amendment to the AHIP that complies with the requirements of the updated Housing Element, complies with the requirements of Chapter 19.54 of the Municipal Code, and satisfies Condition No. 5 of the project approval. 8. New Home Company wishes to enter into a Memorandum of Agreement (MOA) with the City to replace and supersede the previous MOU and to specify the payment of public benefit fees, phasing of development of the property, and waiving a requirement for a development agreement. SECTION 2. CALIFONIA ENVIRONMNETAL QUALITY ACT DETERMINATION A Mitigated Negative Declaration (SCH No. No. 2005 - 071067) has been prepared for the proposed project in accordance with the implementing guidelines of the California Environmental Quality Act (CEQA). The document was made available for public review and comment during a 30 -day review period from July 15 to August 15, 2005 and subsequently approved by the City Council on January 10, 2006. A subsequent mitigated negative declaration for the project is not required to be prepared pursuant to CEQA Guidelines Section 15162 because the amended AHIP and MOA do not constitute "substantial changes" to the project that would involve new significant environmental effects or result in additional mitigation measures. SECTION 3. REQUIRED FINDINGS 1. Pursuant to Section 19.54.050.A.2 of the Municipal Code, the payment of in -lieu housing fees for residential subdivisions of more than 50 units requires the approval of an AHIP. In accordance with Section 19.54.070.D of the Municipal Code, the following findings and facts in support of such findings for alternatives to on -site construction are set forth: Finding: A. The purpose of the chapter would be served by the implementation of the proposed alternative. Facts in Support of Finding: A -1 The acceptance of the fees would permit the City to exercise its discretion to direct the funding of affordable units in the City in a manner consistent with the requirements of Chapter 19.54 of the Municipal Code and more effectively accomplish the goals and objectives set forth in the Housing Element. A -2 Through the acceptance of in -lieu housing fees, the City could partner with an affordable housing developer to leverage the in -lieu fees with other sources to construct or convert units for a deeper affordability level (i.e. lower- income households) in the City. A -3 Utilizing the in -lieu fees to construct, convert, or preserve affordable housing units in the City may assist in obtaining credit under the City's Regional Housing Needs Allocation (RHNA), whereas the units provided under the original AHIP would not be eligible and would not address lower- income housing needs. A -4 The City's Affordable Housing Fund currently consists of approximately $1.5 million, which is an amount that has been insufficient to assist in the development of any sizable affordable housing projects. The proposed AHIP could generate an additional $1.6 million in the Affordable Housing Fund, creating a larger fund that would be awarded to an affordable housing developer and increase a project's feasibility within the City. Finding: B. The units provided are located within the City and are consistent with the requirements of this chapter [Chapter 19.54]. Facts in Support of Finding: B -1 The in -lieu housing fees would be deposited into the City's Affordable Housing Fund, which shall be used in compliance with the General Plan Housing Element to construct, rehabilitate, or subsidize affordable housing or assist other government entities, private organizations, or individuals to provide or preserve affordable housing within the City. Finding: C. It would not be feasible or practical to construct the units on -site. Facts in Support of Finding: C -1 When the project was originally approved, it was determined that providing the required affordable units on -site would not be feasible or practical given the size, scope, design, site configuration, and location of the proposed project. 2. Pursuant to Section 15.45.020.0 of the Municipal Code, the City Council may waive the requirement for a development agreement. The following findings and facts in support of such findings for the waiver of a development agreement are set forth: Finding: A. The legislative act is of a minor nature, or the project provides significant public benefits to the City, or the nature of the project is such that neither the City nor the developer would benefit from a development agreement. Facts in Support of Finding: A -1 The applicant has agreed to enter into a Memorandum of Agreement (MOA) that includes the payment of a $5 million Public Benefits Fee to the City, which may be used by the City for any projects that benefit the City, in addition to the housing and park fees. A -2 Since the applicant is not seeking vesting of development rights, the City nor the applicant would benefit from a development agreement. SECTION 4. DECISION NOW, THEREFORE, BE IT RESOLVED 1. The City Council of the City of Newport Beach does hereby approve an amended Affordable Housing Implementation Plan for the Santa Barbara Condominiums Project, attached as Exhibit 1. 2. The City Council of the City of Newport Beach does hereby approve a Memorandum of Agreement between New Home Company and City of Newport Beach, attached as Exhibit 2. 3. The City Council of the City of Newport Beach does hereby waive the requirement for a development agreement. 4. Resolution No. 2007 -058 is hereby rescinded. 5. This resolution shall take effect immediately upon adoption. 6. This resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach held on February 28, 2012. MAYOR ATTEST: Lk 0 hw-, - CITY CLERK Exhibit I Amended Affordable goosing Implementation entation Pawn The New Home Company Sang Barbara Condominiums Affordable Housing Implementation Plan City ®f Newport Beach, CA January 30, 2012 I. II. TABLE OF CONTENTS Executive Summary .. ............................... Background............... ............................... S urmuary ................... ............................... Affordable Housing Implementation....... Payment of In-Lieu Fees .......................... -i- Page New Home Company— Santa Barbara Condominiums Affordable Housing Implementation Plan I. Executive Summary Background In January, 2006, the City of Newport Beach approved General Plan Amendment No. 2004 -005, Local Coastal Program Land Use Plan Amendment No. 2005 -001, Tentative Parcel Map No. 2005 -014, Tentative Tract Map No. 2004 -004 (TTM 16774), Traffic Study No. 2005- 002 and Coastal Residential Development Permit No. 2005 -004 and adopted Ordinance No. 2006 -1 approving Planned Community Development No. 2005 -003 amending Zoning District Map No. (48) to permit the development of 79 residential units on approximately 4.26 acres of land at 900 Newport Center Drive, known as the Santa Barbara Condominium Project (the "Project "). Condition 5 of the City Council Resolution 2006 -2 approving the project establishes the affordable housing requirement for the project, as follows: The applicant shall provide a minimum of 20% of the total units (16 units) for affordable income households in accordance with Housing Programs 2.2.1 and 2.2.3 of the Newport Beach Housing LZement. The applicant shall enter into an agreement with the City to provide said units, which units pray be provided off -site, at an approved location within the City. These units shall be identified in the agreement and constructed and completed prior- to the issuance of any certificate of occupancy.for the project. The agreement shall be reviewed and approved by the City Attorney and shall be executed and recorded prior to the recordation of the final tract nap or tlae issuance of a building or grading permit for the proposed subdivision. The City of Newport Beach's Housing Element as approved by the City Council in July, 2006, after approval of the Project, includes an amended Housing Program 2.2.1, which sets the goal that 15% of all new housing units in the city be affordable to very low -, low- and moderate - income households. Pursuant to Section 19.54.060 of the Newport Beach Municipal Code, projects with more than 50 units are required to prepare an Affordable Housing Implementation Plan ( "AHIP ") that specifies how the development will meet the City's affordable housing goal. On May 11, 2010, the City Council adopted Ordinance No. 2010 -9 adding a new chapter to the Subdivision Code implementing Housing Program 2.2.1 of the Housing Element of the City's General Plan which allows for alternatives to on -site construction of affordable housing units, including payment of in -lieu fees for projects of fifty -one (5 1) dwelling units or more with approval of an AHIP. Summary On August 14, 2007, the City Council of the City of Newport Beach adopted Resolution 2007 -58 approving an Affordable Housing Implementation Plan for the Project (the "2007 AHIP') as proposed by then- applicant Lennar Homes. Subsequent to approval of the 2007 AHIP, The New Home Company has entered into an agreement with the landowner of the 4.26 acre site to acquire the site and develop the Project. New Home Company — Santa Barbara Condominiums Affordable Housing Implementation Plan In reviewing the provisions of the 2007 AHIP and as a result of further discussions on how the City would like to implement its Inclusionary housing ordinance, the City and The New Home Company have agreed that the 2007 AHIP should be amended. The New Home Company has proposed this new 2012 Affordable Housing Implementation Plan (2012 AHIP ") in order to address the City's objectives and to satisfy the provisions of the City's current Inclusionary Housing requirements as set forth in Chapter 19.54 of the Newport Beach Municipal Code and the Newport Beach Housing Element. Accordingly, The New Home Company, after extensive research on options for meeting the affordable housing requirements, and in consideration of the Chapter 19.54 of the Newport Beach Municipal Code and the adopted Housing Element requirement for 15% of all new units to be affordable, agrees to meet the requirements of the City Inclusionary Housing requirements and the Housing Element as described below. Il. Affordable Housing Implementation Payment of In -Lieu Fees In accordance with the provisions of Section 19.54.050 of the Newport Beach Municipal Code, The New Home Company shall pay a fee in -lieu of constructing the affordable housing units required for the Project (the "In-lieu Fee "). The In -lieu Fee shall be paid at the rate in effect at the time of the issuance of each Building Permit, as that term is defined in the Memorandum of Agreement between the City and The New Horne Company, for each market rate unit. ExhVt 2 Memorandum of Agreement MEMORANDUM OF AGREEMENT BETWEEN THE NEW HOME COMPANY AND CITY OF NEWPORT BEACH This Memorandum of Agreement ( "MOA ") is entered into by and between The Home Company Southern California LLC, a Delaware Limited Liability Company ( "New Home "), HHR Newport Beach LLC, a Delaware Limited Liability Company ( "HHR "), and the City of Newport Beach ( "City'), a municipal co}Poration through its duly elected, appointed, qualified or acting representatives as of the —, day of February, 2012. City and New Home are sometimes collectively referred to in this MOA as the "Parties" and individually as a "Party." RECITALS A. WHEREAS, on January 10, 2006 the Newport Beach City Council approved Resolution No. 2006 -2 adopting Mitigated Negative Declaration (SCH No. 2005 - 071067) and approved General Plan Amendment No. 2004 -005, Local Coastal Program Land Use Plan Amendment No. 2005 -001, Tentative Parcel Map No. 2005 -014, Tentative Tract Map No. 2004- 004 ( "TTM 16774 "), Traffic Study No. 2005 -002 and Coastal Residential Development Permit No. 2005 -004 and adopted Ordinance No. 2006 -1 approving Planned Community Development No. 2005 -003 amending Zoning District Map No. (48) for property located at 900 Newport Center Drive ( "PA 2004-169") owned in fee by HHR to permit the development of 79 residential units on approximately 4.26 acres of land ( "Property') described in Exhibit "A "; B. WHEREAS, on March 27, 2007, the City Council adopted Ordinance No. 2007- 6, amending provisions under which development agreements shall be required for residential development projects in the City to implement new policies and Land Use changes in the new General Plan and requiring development agreements for projects that require a legislative act and include more than 50 units; and C. WHEREAS, on July 10, 2007 the California Coastal Commission approved City of Newport Beach Land Use Plan Amendment NPB- MAJ -1 -06 Part A (Marriott Hotel VSC to MDR/Santa Barbara Condominiums) subject to modifications; D. WHEREAS, on July 24, 2007, the City Council approved Resolution No. 2007- 56 accepting the modifications suggested by the California Coastal Commission; E. WHEREAS, on July 24, 2007, the City Council approved Resolution No. 2007- 55 approving an Affordable Housing Implementation Plan and Memorandum of Understanding for the Santa Barbara Condominium Project at 900 Newport Center Drive (PA2004 -169) with Lennar Homes of California, Inc. ( "Lennar Homes "); F. WHEREAS, on August 14, 2007, the City Council approved Resolution No. 2007 -58, which rescinded Resolution No. 2007 -55 and approved an Affordable Housing Implementation Plan ( "AHIP ") and Memorandum of Understanding ( "MOU ") for the Santa Barbara Condominium Project at 900 Newport Center Drive (PA2004 -169) with Lennar Homes; G. WHEREAS, on September 5, 2007, the California Coastal Commission approved Coastal Development Permit No. 5 -07 -085 permitting the development of 79 residential townhome units ( "Project ") consistent with the City of Newport Beach Land Use Plan Amendment NPB- MAR -1 -06 Part A; H. WHEREAS, Lennar Homes no longer has an equitable or legal interest in the Property; L WHEREAS, New Home is under contract to acquire the Property from HHR and desires to develop the Project; J. WHEREAS, subsequent to the adoption of Resolution No. 2007 -58, the City adopted Municipal Code Chapter 19.54 to implement the City's inclusionary housing policies; and K. WHEREAS, the Parties have determined that as a result of changed circumstances, the Parties shall amend the prior - approved AHIP, and amend, replace and supersede the prior MOU to set forth the process by which New Home shall satisfy its Quimby Act requirements in accordance with the Subdivision Map Act (Government Code Section 66477), and provide for funding of other public benefits as may be determined by the City Council pursuant to the terms of this MOA. NOW, THEREFORE, in light of the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the representations, assurances, covenants and promises contained herein, the Parties agree as follows: IDEFINITIONS. The following terms when used in this MCA shall have the meanings set forth below: 1.1 The term "AHIP" shall mean the Affordable Housing Implementation Plan approved by City on July 24, 2007, as amended by this MOA, and which is attached as Exhibit «B, 1.2 The term "MOA" shall mean this Memorandum of Agreement. 1.3 The term `Building Permit" shall mean either a combination permit or any electrical, mechanical, fire, plumbing and/or pool permit that is issued by the City to New Home for any residential building on any portion of the Property. 1.4 The term "City" shall mean the City of Newport Beach, a California Municipal Corporation and charter city. 1.5 The term "City Council" shall mean the governing body of City. 1.6 The term "Construction Codes" shall mean the Codes that are in effect at the time applicable permits are issued, including but not limited to: California Building Codes Volumes 1 and 2, including Appendix F, I, Appendix Al of Part 10, and all national codes and standards referenced therein, based on the 2010 International Building Code, as published by the International Code Council; the California Electrical Code based on the National Electrical Code, including Annex A, B and C as published by the National Fire Protection Association; the California Plumbing Code, including Appendix Chapters A, B, D, E, F and G, based on the Uniform Plumbing Code as published by the International Association of Plumbing and Mechanical Officials; the California Mechanical Code, based on the Uniform Mechanical Code, including Appendix A as published by the Irt--mational Association of Plumbing and Mechanical Officials; the "Uniform Swimming Pool, Spa, and Hot Tub Code" as published by the International Association of Plumbing and Mechanical Officials; the International Property Maintenance Code; the Newport Beach Administrative Code; the California Fire Code; and International Fire Code, as the same may be modified and amended by official action. 1.7 The term "Demolition Permit" shall mean a permit that is issued by the City enabling New Home to demolish all existing structures and improvements located on the Property. 1.8 The term "Development' or "development' shall mean the improvement of the Property for purposes of completing and effecting the structures, improvements, and facilities comprising the Project, including, without limitation, grading, the construction of infrastructure and public facilities related to the Project whether located within or outside the Property, the construction of structures and buildings and the installation of landscaping. Development also includes the maintenance, repair, or reconstruction of any building, structure, improvement, landscaping or facility after the construction and completion thereof. 1.9 The term "Effective Date" shall mean February 28, 2012, the date of approval of this MOA by the City. 1.10 The term "Foundation Permit' shall mean the permit that is issued to allow construction of the concrete structure that will serve as the foundation for the buildings to be constructed as the Project following all demolition, clearing and grading work required on the Property. 1.11 The term "General Plan" shall mean the City of Newport Beach General Plan, as the General Plan exists as of the Effective Date of this Agreement. 1.12 The term "Rough Grading Permit' shall mean the permit that is issued by the City enabling New Home to accomplish the rough grading of the Property. 1.13 The term "Precise Grading Permit' shall mean the permit that is issued by the City enabling New Home to accomplish the precise grading of the Property, together with the installation of any requisite infrastructure to be located on the Property 1.14 The term "Master Site Plan" shall mean the Master Site Plan for the development of the Property attached hereto as Exhibit "C ". 1.15 The term "Municipal Code" shall refer to the City of Newport Beach Municipal Code, as the same now exists or may be further amended from time to time consistent with this Agreement. 1.16 The term "Other Permits" shall mean either the Rough Grading Permit or Demolition Permit. 1.17 The term "Project" shall mean the development of the Property pursuant to the conceptual plan for development of the Project on the Property is depicted on the conceptual Master Site Plan attached hereto as Exhibit "C ". 1.18 The term "Residential Permit" shall mean either the Precise Gradi-ig Permit, Foundation Permit or the Building Permit. 2. TERM. 2.1 The term of this MOA shall commence on the Effective Date and shall continue thereafter for a period of ten (10) years, unless this MOA is terminated, modified, or extended by circumstances set forth in this MOA or by mutual written consent of the Parties. 2.2 Notwithstanding the foregoing Section, the provisions of this MOA shall terminate sixty (60) days after the date upon which the certificate of occupancy for the final residential condominium unit authorized for the project. PUBLIC BENEFITS. 3.1 AHIP and Affordable Housing Fee. The AHIP, attached as Exhibit "B," provides for the payment of affordable housing fees at the rate in effect at the time the fees are paid pursuant to the schedule set forth in this MOA consistent with NBMC 19.54. The payment of the Affordable Housing In -Lieu Fee replaces the prior AHIP requirement to purchase covenants to guarantee the affordability of an existing 12- unit apartment building. The Affordable Housing In -Lieu Fee shall be paid at the rate in effect upon the issuance of each Building Permit for each unit. As New Home and the City agree that New Home's affordable housing obligations pursuant to Chapter 19.54 of the Municipal Code shall be satisfied by the payment of in -lieu fees, the parties further agree that the requirements of Section 19.54.080 of the City Municipal Code have been addressed and are satisfied. 3.2 Quimby Act Fee. The Project shall pay in -lieu park fees which shall satisfy its obligations under the Quimby Act, Government Code Section 66477. The Quimby Act fee shall be paid on a pro rata basis at the rate in effect upon the issuance of each Building Permit for each unit. 3.3 Public Benefits Fee. The Project shall pay to the City a Public Benefits Fee of $63,291 per unit, for a total of $5,000,000, which shall be used by the City to fund projects for the benefit of the public. The Public Benefits Fee shall be paid on a pro -rata basis upon the issuance of each certificate of occupancy for each unit. 3.4 Conformity with Ordinance No. 2007 -6 and Waiver of Development Agreement. In light of the City's approval of Resolution No. 2006 -2 and Ordinance No. 2006 -1 0 prior to adoption of Ordinance No. 2007 -6, the public benefits that shall be provided to the City pursuant to this MOA, the Project's commitment to implement new policies and land use changes in the General Plan, and the Project's provision of those public benefits identified by the . City to support implementation of the General Plan as set forth in this MOA, pursuant to Mun;cipal Code Section 15.45.020 (Cl), the City hereby we?ves the requirement that the Parties enter into a development agreement. 4. DEVELOPMENT OF THE PROPERTY. 4.1 Separate Permits. New Home may request and, upon approval of the plans therefor and payment of the appropriate fees, City shall issue separate permits, as follows:(a) the Demolition Permit, (b) the Rough Grading Permit (collectively, "Other Permits "), (c) Precise Grading Permit, (d) the Foundation Permit, and (e) the Building Permit (collectively, "Residential Permit "). The City, upon application from New Home, agrees to issue the Other Permits prior to recordation of any required final subdivision map or condominium plan for the Project. 4.2 Phases/Buildings. City shall apply the regulations then in effect to allow the development of the Project in two (2) separate and distinct phases as shown on the Master Site Plan depicted on Exhibit "C" attached hereto. In addition, for all purposes applicable thereto under the Construction Codes and the applicable Building Codes building and land use regulations, the five (5) Buildings shown on Exhibit "C" shall each be considered a separate Building, although all or some of such Buildings shall share a common garage on a subterranean level. 4.3 Sales Trailer. Upon approval of the site plan therefor and payment of the appropriate fees, City shall allow and issue appropriate permits for the installation and use of a mobile trailer as a temporary sales trailer for the Project on the Phase II area of the Property. S. ASSIGNMENT. New Home, and HHR subject to the provisions of Section 6. 1, below, shall have the right to assign its rights and obligations under this MOA without City's consent, in connection with a transfer of New Home's or HHR's interest in the Property provided that no partial transfer shall violate the Subdivision Map Act (California Government Code Sections 66410 - 66499.58). In the event of any such assignment, the assignee shall be liable for the performance of all obligations of New Home or IiHR with respect to the portion of the Property so transferred. Following an assignment or transfer of any of the rights and interest of New Home or HHR set forth in this MOA in accordance with this Section, the assignee's exercise, use and enjoyment of the Property shall be subject to the terms of this MOA to the same extent as if the assignee or transferee were New Home or HHR. 6. MISCELLANEOUS PROVISIONS. 6.1 Covenants. The provisions of this MOA shall constitute covenants which shall run with the land comprising the Property for the benefit thereof, and the burdens and benefits hereof shall bind and inure to the benefit of each of the Parties hereto and all successors in interest to the Parties hereto. The Parties agree that in the event New Home does not assume title to the Property, the rights, benefits and obligations of New Home set forth in this MOA shall inure to the benefit of and be assumed by HHR, the fee owner of the Property. 6.2 Severability. If any term, provision, covenant, or condition of this MOA is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this MOA shall continue in full force and effect, unless and to the extent the rights and obligations of any Party has been materially altered or abridged by such holding. 6.3 Counterparts. This MOA may be executed in counterparts, each of which shall be considered a duplicate original. 6.4 Governing Law. This MOA shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 6.5 Entire Agreement: Waivers and Amendments. This MOA constitutes the entire understanding and agreement of the Parties and supersedes all previous negotiations, discussions, and agreements among the Parties with respect to all or part of the subject matter hereof. No parole evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this MOA. Failure by a Party to insist upon the strict performance of any of the provisions of this MOA by any other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Parties with the terms of this MOA. Any amendments or modifications to this MOA must be in writing, signed by duly authorized representatives of each of the Parties hereto. The MOU that was approved by the City pursuant to Resolution No. 2007 -58 is of no force and effect and has been replaced and superseded in its entirety by this MOA. 7. DEFAULT, REMEDIES, AND TERMINATION. 7.1 Notice and Opportunity to Cure. Before this MOA may be terminated or action may be taken to obtain judicial relief, the Party seeking relief ( "Nondefaulting Party") shall comply with the notice and cure provisions of this Section. A Nondefaulting Party in its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of any other Party ( "Defaulting Party") to perform any material duty or obligation of said Defaulting Party in accordance with the terms of this MOA. However, the Non - Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Nondefaulting Party to cure such breach or failure. The Defaulting Party shall be deemed in "default" of its obligations set forth in this MOA if the Defaulting Party has failed to take action and cured the default within ten (10) days after the date of such notice (for monetary defaults), within thirty (30) days after the date of such notice (for non - monetary defaults), or within such lesser time as may be specifically provided for in this MOA. If, however, a non - monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting Party does each of the following: (i) notifies the Non - Defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period and provides a proposed course of action to cure the default; (ii) promptly commences to cure the default within the thirty (30) day period; (iii) makes periodic reports to the Non - Defaulting Party 0 as to the progress of the program of cure; and (iv) diligently prosecutes such cure to completion, then the Defaulting Party shall not be deemed in breach of this MOA. Notwithstanding the foregoing, the Defaulting Party shall be deemed in default of its obligations set forth in this MOA if said breach or failure involves the payment of money but the Defaulting Party has failed to completely cure -aid monetary default within ten (10) days (or such lest °r time as may be specifically provided in this MOA) after the date of such notice. 7.2 Default Remedies. Subject to Section 7.3, in the event of a default, the Non - Defaulting Party, at its option, may institute legal action to cure, correct, or remedy such default, enjoin any threatened or attempted violation, enforce the terms of this MOA by specific performance, or pursue any other legal or equitable remedy. 7.3 New Home's Exclusive Remedv. The Parties acknowledge that City would not have entered into this MOA if it were to be liable in damages under or with respect to this MOA, or the application thereof, or any permit or approval sought by New Home in accordance herewith. Accordingly, New Home covenants, on behalf of itself and its successors and assigns, not to sue City for damages or monetary relief for any breach of this MOA or arising out of or connected with any dispute, controversy or issue regarding the application, interpretation of effect of this MOA, or any land use permit or approval sought in connection with the development or use of the Property or any portion thereof, the Parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall be New Home's sole and exclusive judicial remedies. 7.4 Force Majeure. The obligations by any Party hereunder shall not be deemed to be in default where delays or failures to perform are due to any cause without the fault and beyond the reasonable control of such Party, including to the extent applicable, the following: war; insurrection; strikes; walk -outs; the unavailability or shortage of labor, materials, or equipment; riots; floods; earthquakes; the discovery and resolution of hazardous waste or significant geologic, hydrologic, archaeological, paleontologic, or endangered species problems on the Property; fires; casualties; acts of God; governmental restrictions imposed or mandated by other governmental entities; with regard to delays of New Home's performance, delays caused by City's failure to act or timely perform its obligations set forth herein; with regard to delays of City's performance, delays caused by a New Home's failure to act or timely perform its obligations set forth herein; inability to obtain necessary permits or approvals from other governmental entities; enactment of conflicting state or federal statutes or regulations; judicial decisions; or litigation not commenced by such Party. Notwithstanding the foregoing, any delay caused by the failure of City or any agency, division, or office of City to timely issue a license, permit, or approval required pursuant to this MOA shall not constitute an event of force majeure extending the time for City's performance hereunder. If written notice of such delay or impossibility of performance is provided to the other Parties within a reasonable time after the commencement of such delay or condition of impossibility, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon by the Parties in writing, or the performance rendered impossible may be excused in writing by the Party so notified. In no event shall adverse market or financial conditions constitute an event of force majeure extending the time for such Party's performance hereunder. 8. NOTICES. Any demand upon or notice required or permitted to be given by one party to the other shall be in writing, shall be made in the following manner, and shall be effective (a) upon receipt if given by personal delivery, (b) on the date indicated on the receipt if given by certified or registered mail, return receipt requested, or (c) on the succeeding business day after mailing or deposit if given by Express Mail or by deposit with a private delivery service of general use (e.g., Federal Express), postage or fee paid, as appropriate, addressed to the parties as set forth below. Notice of a change of address shall be given by written notice in the manner set forth in this section. For the purposes of this MOA, all information, requests, or other business including any demand upon a party or notice pursuant hereto shall be coordinated through the following agency representatives: City of Newport Beach Attn: David Kiff, City Manager (with copy to City Attorney's Office) 3300 Newport Blvd. Newport Beach, CA 92658 -8915 The New Home Company Southern California LLC Tom Redwitz, President 95 Enterprise, Suite 325 Aliso Viejo, CA 92656 IN WITNESS WHEREOF, City and New Home have executed this MOA as of the date first written above. [SIGNATURES ON THE FOLLOWING PAGE] AT' 0 City Clerk APPROVED AS TO FORM: BY 11Z Aaron Harp City Attorney CITY OF NEWPORT BEACH, A Municipal Corporation By: Nancy G er Mayor THE NEW HOME COMPANY SOUTHERN CALIFORNIA LLC, a Delaware Limited Liability Company Tom Redwitz President HHR NEWPORT BEACH LLC, a Delaware Limited Liability Company ATTEST: Lo Leilani Brown City Clerk APPROVED AS TO FORM: By: Aaron Harp City Attorney CITY OF NEWPORT BEACH, A Municipal Corporation Nancy Gardner Mayor THE NEW HOME COMPANY SOUTHERN CALIFORNIA LLC, a Delaware Limited Liability Company By: Tom Redwitz President N HHR NEWPORT BEACH LLC, a Delaware Limited Liability Company M ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation By: By: Leilani Brown Nancy Gardner City Clerk Mayor APPROVED AS TO FORM: By: Aaron Harp City Attorney THE NEW HOME COMPANY SOUTHERN CALIFORNIA LLC, a Delaware Limited Liability Company By: Tom Redwitz President HHR NEWPORT BEACH LLC, a Delaware Limited Liability Company By: I . - k EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY 10 Exhibit "A" Legal Description PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP 2004225 FILED IN BOOK 361 PAGES 1, 2 AND 3 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS MODIFIED BY THE PARCEL MAP CERTIFICATE OF CORRECTION RECORDED APRIL 23, 2008 AS INSTRUMENT NO. 2008000190230. EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING_ THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE'HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE' EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED JANUARY 4, 1993 AS INSTRUMENT NO. 93- 003805, OFFICIAL RECORDS ALSO EXCEPT ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL; BUT WITHOUT HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, -A MICHIGAN CORPORATION, RECORDED JANUARY 4, 1993 AS INSTRUMENT NO. 93 -003805, OFFICIAL RECORDS. 11 EXHIBIT "B" AFFORDABLE HOUSING IMPLEMENTATION PLAN 12 The New Home Company Santa Barbara Condominiums Affordable Housing Implementation Plan City of Newport Beach, CA January 30, 2012 TABLE OF CONTENTS Executive Summary..: .................. ................................. Background..................................... ............................... Summary.......................................... ............................... Affordable Housing Implementation ............................. Payment of In -Lieu Fees ................. ............................... Page New Home Company — Santa Barbara Condominiums Affordable Housing implementation Plan I. Executive Summaryy Background In January, 2006, the City of Newport Beach approved General Plan Amendment No. 2004 -.005, Local Coastal Program Land Use Plan Amendment No. 2005 -001, Tentative Parcel Map No. 2005 -014, Tentative Tract Map No. 2004 -004 (TTM 16774), Traffic Study No. 2005- 002 and Coastal Residential Development Permit No. 2005 -004 and adopted Ordinance No. 2006 -1 approving Planned Community Development No. 2005 -003 amending Zoning District Iv4ap No. (43) to permit the development of 79 residential units on approximately 4,26 acres of land at 900 Newport Center Drive, known as the Santa Barbara Condominium Project (the "Project "). Condition 5 of the City Council Resolution 2006 -2 approving the project establishes the affordable housing requirement for the project, as follows: The applicant shall provide a rninimnrrr of 20% of the total units (16 units),for• crfforclable income households in accordonce with Housing Programs 2.2.1 and 2.2.3 of the Neiaport Beach Housing Element. The applicant shall enter into an agreement with the City to provide said traits, a +lrich units may be provided off -site, at an approved location tvilhin the City. These units shall be identified in the agreement and constructed and completed prior to the issuance of`crny certifrcale of occupancy for the project. The agreement shall be reviewed and approved by the City Attorney and shall be executed and recorded prior to ilre recordation of the final tract map or the issuance of a building or grodingperrnit for the proposed subdivision. The City of Newport Beach's Housing Element as approved by the City Council in July, 2006, after approval of the Project, includes an amended Housing Program 2.2.1, which sets the goal that 15 % of all new housing units in the city be affordable to very low -, low- and moderate - income households. Pursuant to Section 19.54.060 of the Newport Beach Municipal Code, projects with more than 50 units are required to prepare an Affordable Housing Implementation Plan ( "AHIP ") that specifies how the development will meet the City's affordable housing goal. On May 1.1, 2010, the City Council adopted Ordinance No. 20 t0 =9 adding a new chapter to the Subdivision Code implementing Housing Program 2.2.1 of the Housing Element of the City's General Plan which allows for alternatives to on -site construction of affordable housing units, including payment of in -lieu fees for projects of fifty -one (5t) dwelling units or more with approval of an AHIP. Summary On August 14, 2007, the City Council of the City of Newport Beach adopted Resolution 2007 -53 approving an Affordable Housing Implementation Plan for the Project (the "2007 AHIP ") as proposed by then - applicant Lennar Homes. Subsequent to approval of the 2007 AHIP, The New Home Company has entered' into an agreement with the landowner of the 4.26 acre site to acquire the site and develop the Project. New Home Company — Santa Barbara Condominiums Affordable Housing Implementation Plan In reviewing the provisions of the 2007 AHTP and as a result of further discussions on how the City �t-ould like to implement its inclusionary housing ordinance, the City and The New Flome Company have agreed that the 2007 AHUI should be amended. The New Home Company has proposed this new 2012 Affordable Housing Implementation Plan ( "2012 AI-IfP ") in order to address the City's objectives and to satisfy the provisions of the City's current Inclusionary Housing requirements as set forth in Chapter 19.54 of the Newport Beach Municipal Code and the Newport Beach Housing Element. Accordingly, The New Home Company, after extensive research on options for meeting the affordable housing requirements, and in consideration of the Chapter 19.54 of the Newport Beach Municipal Code and the adopted Housing Element requirement for 15% of all new units to be affordable, agrees to meet the requirements of the City Inclusionary Housing requirements and the Housing Element as described below. II. Affordable Housing Implementation Payment of In -Lieu Fees In accordance with the provisions of Section 19.54.050 of the Newport Beach Municipal Code, The New Home Company shall,pay a fee in -lieu of constructing the affordable housing units required for the Project (the "In -lieu Fee "). The In -lieu Fee shall be paid at the rate in effect at the time of the issuance of each Building Permit, as that term is defined in the Memorandum of Agreement between the City and The New Home Company, for each market rate unit. EXHIBIT "C" MASTER SITE PLAN 13 a41 • I3i'f � e EPT! )i I i I �anta arbara Co n d o m i n i u m 8 Newport Beach, Co. STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2012 -19 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 286 day of February, 2012, and that the same was so passed and adopted by the following vote, to wit: Ayes: Hill, Rosansky, Curry, Selich, Henn, Daigle, Mayor Gardner Noes: None Absent: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of February, 2012. D swi z w'l City Clerk Newport Beach, California (Seal)