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HomeMy WebLinkAbout15 - Cost Sharing Agreement with Newport Center Property OwnersO� 2F,W POQ 1� u C.) CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (714) 644 -3200; FAX (714) 644 -3250 Date: Agenda Item No.: Staff Person: REPORT TO THE MAYOR AND CITY COUNCIL September 27, 1999 15 Sharon Z. Wood (949) 644 -3222 SUBJECT: Cost Sharing Agreement with Newport Center Property Owners SUGGESTED ACTION: Approve in concept an agreement for sharing of planning and EIR costs among property owners who have initiated General Plan amendment requests; and authorize City Manager to execute. At a joint study session of the City Council and Planning Commission on March 22, 1999, the City Council approved the comprehensive approach for Newport Center planning suggested by the Commission, and directed the Commission and staff to develop a scope of work, budget and schedule, and meet with property owners. Working with the Commission's General Plan Update Committee, staff has made significant progress in these areas, as follows. • Four property owners have agreed to participate in the comprehensive planning program. They are The Irvine Company, Pacific Life, California State Teachers Retirement System, and Newport Beach Country Club. • A scope of work and budget have been developed, and the Council approved an agreement with planning and project management consultants at the meeting of September 13. • A Notice of Preparation of an environmental impact report has been circulated for public review, and a public scoping meeting was held on September 14. • A consultant has been selected for preparation of the EIR, and that agreement is on the Council agenda for September 27. Part of the Planning Commission's suggested approach for Newport Center planning was financing of the effort through contributions of funds for consultant assistance from major property owners. The four property owners who have agreed to participate in the program also have agreed to share the consultant costs. The attached agreement formalizes that commitment. It also sets forth the services to be provided and their estimated costs, and provides a payment schedule and method for approving cost increases that may arise over the course of the project. Costs are to be allocated among the property owners according to the percent of total traffic from the project that will be generated by their requested entitlement. Payments are to be made to the City in three installments. The first payment will be 50% of the estimated costs, and is due by October 1, 1999. This will allow the City to authorize the consultants to proceed without incurring City expenses. The second payment will amount to 75% of costs, and is due by December 15, 1999. This will cover the major expenditures for preparation of draft planning and environmental documents. The final payment is due by April 1, 2000, when public review of the planning and environmental documents is scheduled to begin. Total costs are expected to be approximately $500,000. Additionally, the agreement states that the City will contribute staff time related to the project without charging the property owners the usual application fees, except for development agreements. Staff expects our time commitment on this project to be significantly lower than typical for a project of this magnitude, since project management consultants have been retained. The property owners have reviewed an outline of the agreement's provisions, and their comments have been incorporated into the agreement. However, they have not had an opportunity to review the agreement yet. Therefore, staff is suggesting that the City Council approve the agreement in concept, and allow the City Manager to make minor changes before executing it. SHARON Z. WOOD Assistant City Manager Attachment: Cost Sharing Agreement Page 2 LI 0 0 COST SHARING AGREEMENT between THE CITY OF NEWPORT BEACH a municipal corporation and • • r� COST SHARING AGREEMENT This Cost Sharing Agreement ( "Agreement'), dated this day of 1999, by and between the City of Newport Beach, a municipal corporation (the "City"), and , a California ( the "Applicant") is made with respect to the following facts. A. Applicant is the owner of the real property ( "Property") located within the area known as Newport Center in the City of Newport Beach, County of Orange, California. The Property is depicted in Exhibit A and legally described in Exhibit "B ". • B. Applicant has asked the City to consider and approve additional entitlement on the Property. C. Other owners of property in Newport Center (collectively, Co- Applicants) have also asked the City to consider and approve additional entitlement on their properties. D. The City and Applicant agree that processing of all the requests for additional entitlement in Newport Center should be coordinated to ensure thorough and accurate assessments of environmental impacts and minimize the time and expense necessary to prepare and complete required documents. E. The City and Applicant agree that all requests for additional entitlement should be considered in the context of a comprehensive zoning document (Planned Community Development Plan (PC Plan) or a Specific Plan) to address near -term planning and environmental issues. The City and Applicant • 2 • also agree that the requests should be considered in the context of long term planning objectives embodied in an amendment of the Land Use Element of the General Plan (LUE Amendment). F. The City's consideration of all requests for additional entitlement will require the preparation, and possible approval, of numerous documents including, a PC Plan or Specific Plan, an EIR, a traffic study pursuant to the Traffic Phasing Ordinance (TPO) and the LUE Amendment (collectively the Discretionary Approvals). The processing of any request for a development agreement shall not be considered in the estimation of costs or the establishment of reimbursement obligations pursuant to this Agreement. G. Applicant acknowledges the City is required to retain the services of an environmental analyst, traffic engineer, land use planner, urban designer and a project manager (collectively, "Planners ") to ensure the Discretionary • Approvals are processed in a timely manner. H. Applicant supports the concept of sharing the cost of processing Discretionary Approvals among Co Applicants for entitlement in Newport Center and the Applicant acknowledges that this Agreement equitably distributes costs. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and Applicant agree as follows: 1. Incorporation of Recitals. The Recitals represent the factual basis for this Agreement. The Parties acknowledge the accuracy of the Recitals and agree that the Recitals are an integral part of this Agreement. • 3 2. Planning Horizons. The Parties agree that the additional • entitlement requested by Applicant and Co- Applicants will be analyzed and considered by the City in the context of both zoning and general plan amendments. The zoning amendment (a PC Text or Specific Plan) will focus on near -term to mid term planning and environmental issues and may involve consideration of additional entitlement on property in Newport Center other than that owned by Applicant and Co- Applicants. The Parties agree that the additional entitlement requested by Applicant and /or Co- Applicants will also be considered by the City in the context of the LUE Amendment. 3. Mana-gement. The City shall retain the services of the Planners to perform the services necessary to process the requested entitlement and prepare appropriate documents. The City shall have the exclusive right and authority to direct the activities of the Planners but City will keep Applicant • informed of progress of and issues related to Planners work and provide Applicant with adequate opportunity to review draft documents prior to release. The City will accept and consider input from Applicant relative to the work by the Planners on the entitlement requested by Applicant. The City will use its best efforts to ensure that the Planners complete all work necessary to process the Discretionary Approvals within the time frames specified in the scopes of work and /or contract with the City. The City will also use its best efforts to ensure that the services and work performed by Planners are directly related to the Discretionary Approvals and clearly within the scope of work. The Planners selected by the City shall be the contractors of, and responsible to, the City and not of the Applicant or the Co- Applicants. C� 4 • 4. Cooperation. The Applicant will cooperate in good faith with the Planners and provide the City and /or the Planners with all necessary documents or information reasonably requested of them. Documents and information requested by Planners or the City shall be provided within a reasonable period of time after the request. Applicant shall not be required to disclose any document or information which by law is privileged or confidential but the failure to disclose may require City to terminate processing of the Discretionary Approvals for the requested additional entitlement. 5. Planners. The City intends to retain the following as Planners pursuant to this Agreement: (i) Environmental Analyst - Michael Brandman Associates (ii) Planning Project Manager — Hogle- Ireland, Inc. • (iii) Land Use Planner — Hogle- Ireland, Inc. (iv) Urban Design Planner - Tellus (v) Traffic Engineer— Austin Faust & Associates and Robert Kahn, John Kain The Applicant agrees that the City may select other Planners to replace some or all of those identified in this Section and may do so without the consent of Applicant. However, City shall consult with the Applicant prior to making any decision to replace one or more of the Planners identified in this Section. 6. Fair Share Payment. Applicant shall pay its share of the costs incurred by the City for the work performed by the Planners on the Discretionary Approvals (including the LUE Amendment) related to the request for additional entitlement submitted by Applicant and the Co- Applicants (Costs). • Applicants share of the Costs shall be equal to the amount of average daily trips 5 generated by the entitlement requested by Applicant divided by the total average • daily trips generated by the entitlement requested by the Applicant and the Co- Applicants (fair share). The Applicant's fair share of the Costs is percent (_ %). 7. Costs. The City has reviewed the scope of work required of each Planner (Exhibits C -G) and has estimated the total Costs to be no more than Five Hundred Thousand Dollars ($500,000) ( "Expected Costs "). City will advise Applicant of the Costs incurred at reasonable intervals during the processing of the Discretionary Approvals. The City may incur Costs up to the amount of Expected Costs without the consent of the Applicant. The City may incur Costs up to 110% of the Expected Costs ( "Excess Costs ") after consulting with the Applicant and providing Applicant with the factual basis for the expenditures, including appropriate amendments to the scope of work to be 40 performed by the Planner. The City shall not incur Costs in excess of 110% of the Expected Costs without the prior written approval of the Applicant. The Applicant shall advise the City of its approval or disapproval of City's request to incur Costs in excess of 110% of Expected Costs within three (3) business days after service of the City's written request 8. Schedule of Payments. The Applicant shall pay Costs to the City according to the following schedule: (i) Fifty percent (50 %) of the Expected Costs by October 1, 1999; (ii) Twenty Five percent (25 %) of the Expected Costs by December 15, 1999; and (iii) The remainder, including any Excess Costs, by April 10, 2000. • D • 9. Fees. The payments by Applicant pursuant to this Agreement are in lieu of any City development application fees for the requested additional entitlement. Applicant shall be required to pay fees normally charged for building and grading permits prior to developing any approved entitlement. Applicant shall also be required to pay normal fees for any application to amend any of the Discretionary Approvals subsequent to any City action pursuant to this Agreement. In the event Applicant requests a Development Agreement, the Applicant shall, in addition to the payment of Costs pursuant to this Agreement, pay the normal fees for preparing and processing development agreements. Applicant agrees and acknowledges that the Costs described in this Agreement are not "fees" or "development fees" as those terms are used in Section 66000 et. seq. of the Government Code. • 10. Review /Notice. The City shall be responsible for scheduling, noticing and conducting all public hearings, and for timely distribution of all documents required for the Project. City is responsible to pay all costs associated with the noticing and conduct of public hearings held in conjunction with the Discretionary Approvals. 11. No Commitment. The provisions of this Agreement and the payment of Costs by Applicant shall not affect or impair the discretion and right of the City to L disapprove or deny some or all of the additional entitlement requested by Applicant ii. disapprove or deny any of the Discretionary Approvals; or iii. make any finding or determination regarding the adequacy of any document, study or report prepared by the Planners that affects or 7 impacts the Discretionary Approvals or the requested entitlement. The Applicant • confirms that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve some or all of the Discretionary Approvals or some or all of the additional entitlement requested by Applicant. The Applicant acknowledges that there will be numerous legislative and adjudicative decisions made by the City with regard to the Discretionary Approvals and /or the additional entitlement requested by Applicant. City shall not make any decision with respect to the Discretionary Approvals or the additional entitlement requested by Applicant absent full compliance with all of the City's legal obligations and full consideration of all relevant information. 12. Term. The Term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the parties. This Agreement will expire when all work required by each Planner • has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Expected Costs and Excess Costs. 13. Early Termination. The Applicant may terminate this Agreement by giving City thirty (30) days written notice and written confirmation of withdrawing its request for additional entitlement. The termination by Applicant shall not be effective until Applicant pays all Costs required by this Agreement for the work performed prior to the notice of termination. 14. Default. A Party shall be in default if, and the Party not in default shall be entitled to pursue any remedy in law or equity if: • M • (i) The Party has, without legal justification or excuse, breached any material obligation pursuant to this Agreement; and (ii) The non - defaulting Party has sent written notice to the Party claimed to be in default, describing the default and requesting compliance within ten days of the notice; and (iii) The party claimed to be in default has not, within ten (10) days after receipt of the notice, cured the default or commenced cure and then diligently pursued the cure to completion. 16. Non - waiver. The failure of a Party to exercise one or more of its rights or remedies pursuant to this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. • 16. Assignment. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party. Consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and apparent commitment to the request for additional entitlement. 17. Modification. This Agreement represents the entire understanding between the City and the Applicant and supersedes any prior or contemporaneous written or oral agreements pertaining to the requested additional entitlement. This Agreement may be modified only by document signed by authorized representatives of the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City of Newport Beach. E 18. Successors. This Agreement and shall be binding on the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 19. Attomeys° Fees. In the event that any action or proceeding is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce one or more of its terms, the prevailing party shall be entitled to recover reasonable legal fees and costs. 20. Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. 21. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 22. Cooaeration. The City and the Applicant shall take all actions and execute all documents that are reasonably necessary to implement this Agreement. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant agree that they would have executed this Agreement without the invalid term or provision. The invalid term or provision shall be severed from the Agreement and the remainder of the Agreement shall be enforced in its entirety. 10 0 0 0 • 24. Representations of Authority. Each person signing this Agreement on behalf of a Party has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 25. Notices. Notices required by this Agreement shall be sent to the following: If to the City: City of Newport Beach 3300 Newport Blvd. If to the Applicant: Newport Beach, CA 92658 -8915 Attention: Assistant City Manager Facsimile No. 949 - 644 -3250 Attention: Facsimile No. Notice shall be considered received upon fax transmission and actual receipt by the Party, upon personal delivery, or five (5) calendar days after deposit into the United States Mail, first class postage prepaid. Dated: in CITY OF NEWPORT BEACH, 11 Mayor Hearing Date: Agenda Item No.: Staff Person: September 27, 1999 SUPPLEMENTAL REPORT TO THE MAYOR AND CITY COUNCIL 15 Sharon Z. Wood (949) 644 -3222 SUBJECT: Cost Sharing Agreement with Newport Center Property Owners SUGGESTED ACTION: Approve in concept an agreement for sharing of planning and EIR costs among property owners who have initiated General Plan amendment requests; and authorize City Manager to execute. Staff met with representatives of the Newport Center property owners on Friday, September 24, 1999, and reviewed the draft Cost Sharing Agreement with them. Several changes were requested to clarify the agreement and update it with the most recent information from the City's traffic consultants. These changes are incorporated in the attached, revised draft. The property owners still need the opportunity to have the agreement reviewed by their legal counsel and decision makers. Therefore, staff's recommendation for the City Council to approve the agreement in concept is unchanged. SHARON Z. WOOD AssiAssi ta Manager Attachment: Cost Sharing Agreement CITY OF NEWPORT BEACH m COMMUNITY AND ECONOMIC �= DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (714) 644 -3200; FAX (714) 644 -3250 Hearing Date: Agenda Item No.: Staff Person: September 27, 1999 SUPPLEMENTAL REPORT TO THE MAYOR AND CITY COUNCIL 15 Sharon Z. Wood (949) 644 -3222 SUBJECT: Cost Sharing Agreement with Newport Center Property Owners SUGGESTED ACTION: Approve in concept an agreement for sharing of planning and EIR costs among property owners who have initiated General Plan amendment requests; and authorize City Manager to execute. Staff met with representatives of the Newport Center property owners on Friday, September 24, 1999, and reviewed the draft Cost Sharing Agreement with them. Several changes were requested to clarify the agreement and update it with the most recent information from the City's traffic consultants. These changes are incorporated in the attached, revised draft. The property owners still need the opportunity to have the agreement reviewed by their legal counsel and decision makers. Therefore, staff's recommendation for the City Council to approve the agreement in concept is unchanged. SHARON Z. WOOD AssiAssi ta Manager Attachment: Cost Sharing Agreement COST SHARING AGREEMENT between THE CITY OF NEWPORT BEACH a municipal corporation and COST SHARING AGREEMENT This Cost Sharing Agreement ( "Agreement'), dated this day of 1999, by and between the City of Newport Beach, a municipal corporation (the "City"), and , a California ( the "Applicant") is made with respect to the following facts. A. Applicant is the owner of the real property ( "Property") located within the area known as Newport Center in the City of Newport Beach, County of Orange, California. The Property is depicted in Exhibit A and legally described in Exhibit "B ". B. The City is considering additional entitlement on the Property. C. The City also is considering additional entitlement on properties of other property owners in Newport Center (collectively, Co- Applicants). D. The City and Applicant agree that processing of all additional entitlement in Newport Center should be coordinated to ensure thorough and accurate assessments of environmental impacts and minimize the time and expense necessary to prepare and complete required documents. E. The City and Applicant agree that all additional entitlement should be considered in the context of a comprehensive zoning document (Planned Community Development Plan (PC Plan) or a Specific Plan) to address near - term planning and environmental issues. The City and Applicant also agree that all additional entitlement should be considered in the context of long term i7 planning objectives embodied in an amendment of the Land Use Element of the General Plan (LUE Amendment). F. The City's consideration of all requests for additional entitlement will require the preparation, and possible approval, of numerous documents including, a PC Plan or Specific Plan, an EIR, a traffic study pursuant to the Traffic Phasing Ordinance (TPO) and the LUE Amendment (collectively the Discretionary Approvals). The processing of any request for a Local Coastal Program amendment or a development agreement shall not be considered in the estimation of costs or the establishment of reimbursement obligations pursuant to this Agreement. G. Applicant acknowledges the City is required to retain the services of an environmental analyst, traffic engineer, land use planner, urban designer and a project manager (collectively, "Planners ") to ensure the Discretionary Approvals are processed in a timely manner. H. Applicant supports the concept of sharing the cost of processing Discretionary Approvals among Co Applicants for entitlement in Newport Center and the Applicant acknowledges that this Agreement equitably distributes costs. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and Applicant agree as follows: 1. Incorporation of Recitals. The Recitals represent the factual basis for this Agreement. The Parties acknowledge the accuracy of the Recitals and agree that the Recitals are an integral part of this Agreement. 3 2. Planning Horizons. The Parties agree that the additional entitlement will be analyzed and considered by the City in the context of both zoning and general plan amendments. The zoning amendment (a PC Text or Specific Plan) will focus on near -term to mid term planning and environmental issues and may involve consideration of minor additional entitlement on property in Newport Center other than that owned by Applicant and Co- Applicants. The Parties agree that the additional entitlement will also be considered by the City in the context of the LUE Amendment. 3. Mananement. The City shall retain the services of the Planners to perform the services necessary to process the additional entitlement and prepare appropriate documents. The City shall have the exclusive right and authority to direct the activities of the Planners but City will keep Applicant informed of progress of and issues related to Planners' work and provide Applicant with adequate opportunity to review draft documents prior to release. The City will accept and consider input from Applicant relative to the work by the Planners on the additional entitlement. The City will use its best efforts to ensure that the Planners complete all work necessary to process the Discretionary Approvals within the time frames specified in the scopes of work and /or contract with the City. The City will also use its best efforts to ensure that the services and work performed by Planners are directly related to the Discretionary Approvals and clearly within the scope of work. The Planners selected by the City shall be the contractors of, and responsible to, the City and not of the Applicant or the Co- Applicants. 4. Cooperation. The Applicant will cooperate in good faith with the Planners and provide the City and /or the Planners with all 4 necessary documents or information reasonably requested of them. Documents and information requested by Planners or the City shall be provided within a reasonable period of time after the request 5. Planners. The City intends to retain the following as Planners pursuant to this Agreement: (1) Environmental Analyst - Michael Brandman Associates (ii) Planning Project Manager — Hogle- Ireland, Inc. (iii) Land Use Planner and Urban Designer — Hogle- Ireland, Inc. (iv) Traffic Engineer — Austin Foust & Associates and Robert Kahn, John Kain & Associates (v) Fiscal Impact Analysis — To be determined The Applicant agrees that the City may select other Planners to replace some or all of those identified in this Section and may do so without the consent of Applicant. However, City shall consult with the Applicant prior to making any decision to replace one or more of the Planners identified in this Section. 6. Fair Share Payment. Applicant shall pay its fair share of the costs incurred by the City for the work performed by the Planners on the Discretionary Approvals (including the LUE Amendment) , which is 7. Costs. percent L %). The City has reviewed the scope of work required of each Planner (Exhibits C- F) and has estimated the total Costs to be no more than Five Hundred Thirty -Two Thousand Dollars ($532,000) ( "Expected Costs "). City will advise Applicant of the Costs incurred at reasonable intervals during the processing of the Discretionary Approvals. The City may incur Costs up to the 5 amount of Expected Costs without the consent of the Applicant. The City may incur Costs up to 110% of the Expected Costs ( "Excess Costs ") after consulting with the Applicant and providing Applicant with the factual basis for the expenditures, including appropriate amendments to the scope of work to be performed by the Planner. The City shall not incur Costs in excess of 110% of the Expected Costs without the prior written approval of the Applicant. The Applicant shall advise the City of its approval or disapproval of City's request to incur Costs in excess of 110% of Expected Costs within two (2) weeks after service of the City's written request 8. Schedule of Payments. The Applicant shall pay Costs to the City according to the following schedule: (i) Fifty percent (50 %) of the Expected Costs upon execution; (ii) Twenty Five percent (25 %) of the Expected Costs by December 15, 1999; and (iii) The remainder, including any Excess Costs, by April 10, 2000. 9. Fees. The payments by Applicant pursuant to this Agreement are in lieu of any City development application fees for the additional entitlement. Applicant shall be required to pay fees normally charged for building and grading permits prior to developing any approved entitlement. Applicant shall also be required to pay normal fees for any application to amend any of the Discretionary Approvals subsequent to any City action pursuant to this Agreement. In the event Applicant requests a Local Coastal Program amendment or Development Agreement, the Applicant shall, in addition to the payment of Costs pursuant to this Agreement, pay the normal fees for preparing and processing development agreements. Applicant agrees and acknowledges 11 that the Costs described in this Agreement are not "fees" or "development fees' as those terms are used in Section 66000 et. seq. of the Government Code. 10. Review /Notice. The City shall be responsible for scheduling, noticing and conducting all public hearings, and for timely distribution of all documents required for the Project. City is responsible to pay all costs associated with the noticing and conduct of public hearings held in conjunction with the Discretionary Approvals. 11. No Commitment. The provisions of this Agreement and the payment of Costs by Applicant shall not affect or impair the discretion and right of the City to L disapprove or deny some or all of the additional entitlement; ii. disapprove or deny any of the Discretionary Approvals; or iii. make any finding or determination regarding the adequacy of any document, study or report prepared by the Planners that affects or impacts the Discretionary Approvals. The Applicant confirms that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve some or all of the Discretionary Approvals or some or all of the additional entitlement. The Applicant acknowledges that there will be numerous legislative and adjudicative decisions made by the City with regard to the Discretionary Approvals. City shall not make any decision with respect to the Discretionary Approvals absent full compliance with all of the City's legal obligations and full consideration of all relevant information. 12. Term. The Term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the parties. This Agreement will expire when all work required by each Planner has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Expected Costs and Excess Costs. 13. Early Termination. The Applicant may terminate this Agreement by giving City thirty (30) days written notice and written confirmation of withdrawing its request for additional entitlement. The termination by Applicant shall not be effective until Applicant pays all Costs required by this Agreement for the work performed prior to the notice of termination. 14. Default. A Party shall be in default if, and the Party not in default shall be entitled to pursue any remedy in law or equity if: (i) The Party has, without legal justification or excuse, breached any material obligation pursuant to this Agreement; and (ii) The non - defaulting Party has sent written notice to the Party claimed to be in default, describing the default and requesting compliance within ten days of the notice; and (iii) The party claimed to be in default has not, within ten (10) days after receipt of the notice, cured the default or commenced cure and then diligently pursued the cure to completion. 15. Non - waiver. The failure of a Party to exercise one or more of its rights or remedies pursuant to this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. E-3 16. Assignment. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party. Consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and apparent commitment to the request for additional entitlement. 17. Modification. This Agreement represents the entire understanding between the City and the Applicant and supersedes any prior or contemporaneous written or oral agreements pertaining to the requested additional entitlement. This Agreement may be modified only by document signed by authorized representatives of the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City of Newport Beach. 18. Successors. This Agreement and shall be binding on the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 19. Attornevs' Fees. In the event that any action or proceeding is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce one or more of its terms, the prevailing party shall be entitled to recover reasonable legal fees and costs. 20. Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. 0 21. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 22. Cooperation. The City and the Applicant shall take all actions and execute all documents that are reasonably necessary to implement this Agreement. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant agree that they would have executed this Agreement without the invalid term or provision. The invalid term or provision shall be severed from the Agreement and the remainder of the Agreement shall be enforced in its entirety. 24. Representations of Authority. Each person signing this Agreement on behalf of a Party has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 25. Notices. Notices required by this Agreement shall be sent to the following: If to the City: City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Attention: Assistant City Manager Facsimile No. 949 - 644 -3250 10 If to the Applicant: Attention: Facsimile No. Notice shall be considered received upon fax transmission and actual receipt by the Party, upon personal delivery, or five (5) calendar days after deposit into the United States Mail, first class postage prepaid. Dated: am ATTEST: By: City Clerk APPROVED AS TO FORM: City Attorney Dated: CITY OF NEWPORT BEACH, APPLICANT 11 Mayor a Authorized Agent APPROVED AS TO FORM: Legal Counsel for 12 Exhibit 4X Legal Description of the Property 13 Exhibit "8° 14 Exhibit "C" 15 Exhibit "D" 16 Exhibit °E,, 17