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HomeMy WebLinkAbout14 - Lido Partners Settlement AgreementCTY OF F NEWPORT BEACH City Council Staff Report February 24, 2015 Agenda Item No. 14 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Aaron Harp, City Attorney — (949) 644 -3131, aharp @newportbeachca.gov PREPARED BY: Leonie Mulvihill, Assistant City Attorney PHONE: (949) 644 -3131 TITLE: Lido Partners Settlement Agreement ABSTRACT: In April 2014, the City filed an action in the Orange County Superior Court for quiet title and for declaratory relief regarding the use of the former City Hall site by trucks serving Via Lido Plaza. The owners of Via Lido Plaza and City staff have negotiated a settlement agreement that would resolve all claims between the parties. RECOMMENDATION: Approve the Settlement Agreement between the City and Lido Partners. FUNDING REQUIREMENTS: Under the terms of the Settlement Agreement, each party is responsible for their own costs of the litigation. The City will also be responsible for the costs of installing a new driveway in the Via Oporto public right -of -way, which is anticipated to cost no more than $4,000.00. DISCUSSION: The City is the fee owner of 3300 Newport Boulevard, which is the former site of City Hall. Lido Partners is the fee owner of the property adjacent to the City Hall site, which is commonly referred to as the "Via Lido Shopping Center" (the "Lido Partners Property "). Prior to the approval of a ground lease with Olson Real Estate Group, Inc. for the development of the Lido House Hotel, Lido Partners contended they had a permanent, irrevocable right to use a portion of the City Property. On April 7, 2014, the City filed a complaint against Lido Partners in the Orange County Superior Court asserting claims to quiet title and for declaratory relief as to the Disputed Property in Case No. 30 -2014 00715029 — CU- OR -CJC (the "Complaint'). Without admission of any kind regarding the merits of any claim or defense, the Parties have negotiated an agreement to settle and release any and all claims that they may have, now or in the future, against each other relating in any way to the litigation. 14 -1 The terms of the Settlement Agreement require the City and Lido Partners to work cooperatively together to direct truck traffic to and from the Lido Partners Property over the public right -of -ways via 32nd Street and Via Oporto. Specifically, the City agrees to a new curb /driveway from the Lido Partners property to Via Oporto to accommodate a new truck access from Via Oporto. Via Oporto will be restriped to allow northbound and southbound traffic from 32nd Street to the new driveway. Lido Partners agrees to reconfigure the parking and drive aisles on its property to accommodate the new driveway at its own cost. To the extent that any parking spaces are eliminated by this reconfiguration, the City will consider these spaces during any future entitlement process as eliminated. Lido Partners will continue to use the City Hall property for truck access to 32nd Street as it currently does, but will cease this use upon completion of the new driveway. Concurrent with the completion of the new driveway, Lido Partners will record a quit claim deed, which will permanently release any interest it has, or claims to have, in the City Hall property. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Section 15301 (Existing Facilities) and Section 15303 (New Construction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Approval of this Settlement Agreement will lead to the partial reconfiguration of an existing parking lot within Via Lido Plaza and a new driveway approach for delivery vehicles to Via Oporto. Section 15301 exempts minor alteration of existing public or private facilities involving negligible or no expansion of use. The changes to the parking lot involve restriping parking spaces and minor changes to parking lot landscaping. The minor reduction of off - street parking for Via Lido Plaza (seven spaces) does not reduce parking below the minimum required. Section 15303 exempts the construction of limited new small facilities or structures such as a drive approach within an existing street. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment A - Settlement Agreement 14 -2 ATTACHMENT A SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ( "Agreement ") dated effective as of February 24, 2015, is entered into by and between the City of Newport Beach (the "City") and Lido Partners, a California limited partnership, ( "Lido Partners "). The City and Lido Partners are referred to collectively as the "Parties" and individually as a "Party." RECITALS A. The City is the fee owner of that certain real property located in Newport Beach, California, commonly known as 3300 Newport Boulevard and more particularly described on Exhibit "I" attached hereto (the "City Property "). B. Lido Partners is the fee owner of that certain real property located adjacent to the City Property, which is commonly referred to as the "Via Lido Shopping Center" and is more particularly described on Exhibit "2" attached hereto and depicted in Exhibit "3" (the "Lido Partners Property "). C. Lido Partners contends that it obtained a permanent, irrevocable right to use a portion of the City Property as more particularly described herein below (the "Disputed Area "). Specifically, Lido Partners contends that it has somehow acquired an irrevocable license or equitable interest in the Disputed Area. D. On April 7, 2014, the City filed a complaint against Lido Partners in the Orange County Superior Court asserting claims to quiet title and for declaratory relief as to the Disputed Property in Case No. 30 -2014 00715029 — CU- OR -CJC (the "Complaint "). The Disputed Property is more particularly described in Paragraph 10 of the Complaint. Lido Partners filed a cross - complaint in the Action that similarly asserts claims to quiet title and for declaratory relief. Collectively, the claims filed by the Parties in Case No. Case No. 30 -2014 00715029 — CU -OR- CJC shall be referred to as the "Actions ". E. A portion of the City Property has been ground leased by the City to Olson Real Estate Group, Inc., dba R. D. Olson Development ( "Ground Lessee ") pursuant to that certain Ground Lease dated September 9, 2014 ("Ground Lease "), which real property is more particularly described in the Ground Lease ( "Ground Lease Property "). F. If the controversy regarding the City and Lido Partners' rights with respect to the Disputed Area is not resolved, it will interfere with the redevelopment of the City's Property as contemplated by the Ground Lease. G. The Parties, without admission of any kind regarding the merits of any claim or defense, desire to settle the Actions and release any and all claims that they may have, now or in the future, against each other relating in any way to the allegations contained in, or that could have been alleged, in the Actions, except as specifically set forth in this Agreement, in order to avoid litigation and expenditure of any further resources. The Parties intend that the terms and conditions set forth in this Agreement will resolve the Actions in a manner consistent with the Parties mutual desire to direct truck traffic to and from the Lido Partners Property over the public I RO I DOM743463ACO24843kO378039 14 -3 right -of -ways via 32 "d Street and Via Oporto, and to improve the traffic flow and public safety in Lido Village. F. Accordingly, and for good and adequate consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties covenant and agree as follows: AGREEMENT 1. Truck Access. Lido Partners desires, and the City hereby approves of, a point of access for emergency vehicles and vehicular trucks, including without limitation waste collection and disposal trucks and vendor /supplier delivery trucks, to and from the Lido Partners Property through the "New Driveway" (as defined below) from the public street abutting the south- easterly boundary of Lido Partners Property and commonly known as Via Oporto, on the terms and conditions set forth in this Agreement ("New Truck Access "). 2. New Driveway and New Truck Access Route. The point of ingress /egress for the New Truck Access will be a new concrete driveway apron to be located in the public rights -of- way and public street commonly known as Via Oporto as shown and labeled on Exhibit "3 -A" attached hereto ( "New Driveway "). The vehicular ingress and egress route for use of the New Driveway will be as shown and labeled on Exhibit "3 -A" (New Truck Access Route "). After completion of the Site Work (as defined below), and unless Lido Partners requests or otherwise agrees, the City will not require any conditions of approval concerning the Lido Partners Property which would relocate or modify the New Driveway, the New Truck Access or the New Truck Access Route because such relocation or modification would be in material conflict with the terms and conditions of this Agreement. 3. Material Consideration. The New Truck Access, the New Driveway and the New Truck Access Route, all as set forth in this Agreement, are material inducements for Lido Partners, without which Lido Partners would not enter into this Agreement, and constitute material consideration for Lido Partners to settle the Actions by entering into this Agreement. If the New Truck Access, the New Driveway and the New Truck Access Route are eliminated by the City without the request or the consent of Lido Partners, the Parties acknowledge and agree that such action would provide a basis for Lido Partners to make a claim for inverse condemnation (including any losses or damages arising therefrom) against the City. 4. Site Work For New Truck Access Route. To enable the use of the New Truck Access by Lido Partners pursuant to the New Truck Access Route, certain site improvement work will be performed by the City and Lido Partners in the time and manner as set forth in this Section 4. The "City Site Work" is set forth in Section 4(a) below, and the "Lido Partners Site Work" is set forth in Section 4(b) below. The City Site Work and the Lido Partners Site Work will be referred to collectively as the "Site Work." (a) City Site Work. The City will: (i) Restripe existing traffic lanes on Via Oporto to provide for two - way traffic lanes over the southern portion of Via Oporto from the New Driveway southerly to the intersection of Via Oporto and 32nd Street as necessary to permit two -way vehicular truck 2 IRO DOCS043463.91CO24843 10378039 14 -4 ingress and egress to and from the Lido Partners Property via 32nd Street, Via Oporto and over the New Driveway, as shown on Exhibit "3 -A." (ii) Construct improvements necessary to ensure continued one -way traffic (south- bound) over the remaining portion of Via Oporto (extending north from the New Driveway to the Via Lido/Via Oporto intersection). (iii) Construct the New Driveway, with a minimum width of 20 feet, together with adjacent sidewalk and street improvements, and install traffic control measures if necessary to direct traffic flow in accordance with the New Truck Access Route. All City Site Work will be conducted in the public rights -of -way, including curb cuts, gutters and sidewalks, and not on the Lido Partners Property. (b) Lido Partners Site Work. (i) Lido Partners Revised Site Plan. Lido Partners will reconfigure the parking lot on the south -east comer of Lido Partners Property (between the New Driveway and Building "A" identified in Exhibit "3 -A ") to create a vehicular truck driving lane from the New Driveway to the truck delivery area on the Lido Partners Property, and to realign vehicular parking spaces as necessary in accordance with the Exhibit "3 -A." The reconfiguration of said parking lot and realignment of vehicular parking spaces of the Lido Partners Property as necessary in accordance with the Exhibit "3 -A" is subject to the following conditions: (1) Parking Spaces. The City and Lido Partners acknowledge and agree that a. the total number of parking spaces currently existing on the Lido Partners Property is 312 parking spaces, and the total number of parking spaces serving the uses existing on the Lido Partners Property as of the date of this Agreement and required by the City's Zoning Ordinance is 296 parking spaces, which results in a current surplus of 16 parking spaces for the Lido Partners Property, as shown on Exhibit "3"; b. approximately 7 parking spaces may be eliminated by the addition of the New Truck Access and the redesign of the driving lanes and realignment of vehicular parking spaces for the New Truck Access Route, as shown on Exhibit "3 -A ", which will be accomplished by the Lido Partners Site Work; and C. For each parking space on the Lido Partners Property which is actually eliminated due to the Lido Partners Site Work, the City will take fully into consideration such parking loss in connection with any application for subdivision, building permits or other applications of Lido Partners or any of Lido Partners' lessees, tenants, successor's or assigns for the purpose of the City's parking requirements and shall treat such applications as if such loss had not occurred. By way of example only, if 7 parking spaces are actually eliminated in connection with the New Truck Access and Lido Partners Site Work, then the City would consider the required number of parking spaces as 289 and the provided number IR01 DOM7434639T02464310376039 14 -5 of parking spaces as 305 for the Lido Partners Property, such that the surplus number of parking spaces is 16. d. Promptly following final City - approved permitted plans and specifications for the Lido Partners Site Work, Lido Partners will execute and deliver to the City for execution and recording approval, the Parking Covenant Agreement attached hereto as Exhibit "4" (with the actual number of eliminated parking spaces having been inserted pursuant to such final plans and specifications). Within ten (10) days following receipt of the Parking Covenant Agreement, the City will return a fully executed, notarized original of the Parking Covenant Agreement to Lido Partners, and Lido Partners (at its cost) will immediately submit the Parking Covenant Agreement for recording in the Official Records of the Orange County Recorder's Office. (2) Electronic Security Gate. The electronic security gate on the Lido Partners Property, which will be relocated from its current position for use with the New Driveway, will be shown on the final permitted plans and specifications for the Lido Partners Site Work (which will also include the actual number of eliminated parking spaces due to the relocation of the electronic security gate), and its relocation will be approved by the City in accordance with the current City Community Development Department and Public Works Department processes. (3) Parking Validation System. A parking validation system may be incorporated for the Lido Partners Property. The pending application of Lido Partners for such parking validation system will be modified as necessary to be consistent with this Agreement and will identify the point of entrance and exit for delivery trucks and emergency access vehicles to the Lido Partners Property as being through the New Driveway and New Truck Access. The pending application for said parking validation system (as modified) will be processed by the City in accordance with the current City Community Development Department and Public Works Department processes. All Lido Partners Site Work will be conducted on the Lido Partners Property, and not in the public rights -of -way or City Property. (c) Costs and Expenses for Site Work. (i) All costs and expenses related to the City Site Work will be at the City's sole cost and expense. (ii) All costs and expenses related to the Lido Partners Site Work will be at Lido Partners' sole cost and expense. (d) Schedule for Site Work. (i) The City will commence, and thereafter diligently pursue to completion, the City Site Work promptly upon execution of this Agreement. The construction of the City Site Work will be completed pursuant to plans and specifications reasonably approved by Lido Partners and the City by no later than 12 months following the mutual execution of this IRO DOCS \743463.9\CO24843\0378039 14 -6 Agreement ( "Completion Date "). Should any circumstances or requirements imposed by other public agencies affect the Completion Date for the City Site Work, the Parties shall meet and confer in good faith and coordinate time schedules for the completion of the City Site Work. (ii) Lido Partners will commence, and thereafter diligently pursue to completion, the Lido Partners Site Work promptly upon execution of this Agreement. The construction of the Lido Partners Site Work will be completed pursuant to final permitted plans and specifications approved by the City in accordance with the current City Community Development Department and Public Works Department processes; provided however, in no event will the City require any conditions of approval to such plans and specifications which are in material conflict with the terms and conditions of this Agreement. The City approved final permitted plans and specifications for the Lido Partners Site Work will confirm the actual number of parking spaces which are eliminated due to the Lido Partners Site Work, and will confirm the resulting number of required, provided, and surplus parking spaces for the Lido Partners Property after application of the treatment set forth in Section 4(b)(i)(I)(c) above. 5. Use of Interim Access Route. Until the Site Work for the New Truck Access and New Driveway is completed by the City and Lido Partners, Lido Partners will continue to use that portion of the Ground Leased Property generally depicted on Exhibit "Y for truck ingress and egress from 32nd Street to the Lido Partners Property ( "Interim Access Route "), without obstruction or interruption, consistent with Lido Partners' present use of the Interim Access Route. Lido Partners' rights to use the Interim Access Route will immediately terminate upon completion of all of the Site Work. The City will coordinate any construction or development activities by Ground Lessee under the Ground Lease in a manner to maintain uninterrupted or obstructed use of the Interim Access Route in accordance with this Section 5. 6. City Council Approval. This Agreement is expressly conditioned upon approval of this Agreement by the City Council (after expiration of any applicable appeal periods without the filing of an appeal challenging such approval, or if an appeal is filed, after the final resolution of such appeal by the City Council which approves this Agreement). 7. City Authorization. The City Manager of the City of Newport Beach is hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry out and implement this Agreement and to administer the City's obligations, responsibilities and duties to be performed under this Agreement. 8. Dismissal of the Actions. Within ten (10) days after the mutual execution and delivery (including the satisfaction of all conditions set forth herein) by the Parties, counsel for the Parties will execute and file a dismissal of the Actions with prejudice. 9. Mutual Releases. (a) Except for the covenants, and obligations contained in this Agreement, the City, on the one hand and Lido Partners on the other hand, each on behalf of itself and its respective officers, directors, employees, managers, partners, agents, representatives, successors and assigns, hereby irrevocably and unconditionally release and forever discharge the other and the other's respective parents, insurers, subsidiaries, predecessors, successors and s IRO DOCS \743463.9 \CO24843 \0378039 14 -7 assigns and all their respective shareholders, partners, members, managers, directors, officers, employees, affiliates, agents, and attorneys of and from any and all liability, promises, acts, actions, claims, demands, costs, expenses, damages, causes of action, suits or obligations of any nature, whether at law, equity or otherwise, whether based upon statute, contract, tort or otherwise, whether known or unknown, foreseen or unforeseen, accrued or hereafter accruing, which any of the Parties (or their officers, directors, employees, members, partners, shareholders, agents, representatives, successors or assigns) now have, may have or may hereafter assert against one another, relating to the Actions. (b) The term `claims" as used herein, includes any claim, counter - claim, or cause of action, regardless of the forum in which it may be brought, and includes, but is not limited to any alleged breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of any obligation arising out of any law or public policy of the United States of America, the State of California or any other governmental entity, intentional or negligent infliction of emotional distress, fraud, misrepresentation, defamation, retaliation, or any other claims or causes of action for damages of any nature, including without limitation, actual, compensatory, punitive and liquidated damages and attorney fees, costs and expenses. (c) To the extent that the foregoing releases are releases to which Section 1542 of the California Civil Code applies, it is the intention of the Parties that the foregoing releases shall be effective as a bar to any and all actions, fees, damages, losses, claims, liabilities and demands of whatsoever character, nature and kind, known or unknown, suspected or unsuspected, specified herein. In furtherance of this intention, the Parties each expressly waive any and all rights and benefits conferred upon them by the provisions of Section 1542 of the California Civil Code (as well as of all provisions of similar effect under any other applicable law of any jurisdiction). The Parties acknowledge that the waiver and relinquishment of their rights and benefits under Section 1542 of the California Civil Code is an essential and material term of the releases, without which this Agreement would not have been executed. Section 1542 of the Califomia Civil Code reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HF.R SETTLEMENT WITH THE DEBTOR." 10. Ouit Claim. Within ten (10) days following the completion of the City Site Work, Lido Partners shall execute, and the City shall record, a Quit Claim Deed in substantially the same form as Exhibit "5" attached hereto, conveying all rights, title and interest in and to the Disputed Area. 11. Miscellaneous. (a) No Limitation of Remedies. No right, power or remedy conferred upon or reserved to or by the Parties to this Agreement is intended to be exclusive of any other right, power or remedy conferred upon or reserved to or by the Parties under this Agreement, or at law or in equity. Each and every remedy shall be cumulative and concurrent, and shall be in 6 IRO DOCS \743463.91CO24843 \0378039 I= addition to each and every other right, power and remedy given under this Agreement, now or subsequently existing at law. (b) No Waivers. No delay or failure on the part of the Parties in the exercise of any right or remedy under this Agreement shall operate as a waiver, and no single or partial exercise of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. No action or forbearance by the Parties contrary to the provisions of this Agreement shall be construed to constitute a waiver of any of the express provisions. (c) Successors or Assigns. Whenever any Party hereto is named or referred to in this Agreement, the heirs, executors, legal representatives, successors, successors -in -title and assigns of such Party shall be included. (d) Construction of Agreement. Each Party hereto acknowledges that it has participated in the negotiation of this Agreement. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured, dictated or drafted such provision. No representations or warranties have been made by any of the Parties, or relied upon by the Parties, pertaining to the subject matter of this Agreement, other than those expressly set forth in this Agreement. All prior statements, representations and warranties, if any, are entirely superseded and merged into this Agreement, which represents the final and sole Agreement of the Parties with respect to the subject matters of this Agreement. All of the terms of this Agreement were negotiated at arm's length, and this Agreement was prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties upon the others. The execution and delivery of this Agreement is the free and voluntary act of the Parties. (e) Relationship of Parties. The Parties do not intend by this Agreement to create a partnership or a joint venture. The obligations of the Parties set forth herein are not intended to benefit and should not be relied on by third parties. (f) Headings. The headings of the articles, sections and subsections of this Agreement are for the convenience of reference only, are not to be considered a part of this Agreement and shall not be used to construe, limit or otherwise affect this Agreement. (g) Time of Essence. Time is of the essence of this Agreement. (h) Invalid Provision to Affect No Others. If, from any circumstances whatsoever, fulfillment of any provision of this Agreement, at the time performance of such provision shall be due, shall involve transcending the limit of validity presently prescribed by any applicable usury statute or any other applicable law, with regard to obligations of like character and amount, then ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity. If any clause or provision operates or would prospectively operate to invalidate this Agreement, in whole or in part, then such clause or provision only shall be deemed deleted, as though not contained, and the remainder of this Agreement, shall remain operative and in full force and effect. H IRO DOCS \743463.9\CO24843 \0378039 FLT] (i) Attorneys' Fees And Costs and Conflict Resolution. Each Party shall bear its own attorneys' fees and costs incurred in connection with the Action. However, in the event it is necessary for any Party to initiate legal action to enforce any term or condition of this Agreement, the prevailing party(ies) shall be entitled to recover all actual attorneys' fees and costs incurred. Q) Continuing Jurisdiction. The Parties agree, and jointly request, that the judge presiding over the Actions retain jurisdiction over the Actions and over the Parties personally until final performance of this Agreement, pursuant to California Code of Civil Procedure section 664.6. This includes appropriate proceedings to enforce this Agreement, including but not limited to the entry of any appropriate judgment, and includes tolling of any applicable statute, rule or court order affecting timely prosecution of the Actions. The Parties further agree that they shall cooperate to file any appropriate notices and stipulations in the Actions, including without limitation any notices of settlement or notices of conditional settlement. (k) Amendments. This Agreement may not be amended, modified or terminated other than pursuant to a written instrument specifically referring to this Agreement, and which is executed and delivered by all of the Parties. (1) Claims Not Assigned. The Parties represent and warrant that they have not sold, assigned, transferred, conveyed or otherwise disposed of any right, claim, demand or cause of action being released herein or otherwise relating to any matter covered by this Agreement. (m) Authority To Execute. The individual persons executing this Agreement represent and warrant that they have full unconditional authorization and power to execute this Agreement on behalf of each respective Party on whose behalf they are executing this Agreement. (n) Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of California. (o) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGES] IRO ROCS \743463.9 \CO24843\0378039 14 -10 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date set forth above. "CITY" CITY OF NEWPORT BEACH, a California charter city By: Edward D. Selich, Mayor PRO ED ASI TO FORM: Aaron C. Harp, City Attorney I City of Newport Beach ATTEST: Leilani Brown, City Clerk "LIDO PARTNERS" Lido Partners, a California limited partnership By: Fritz Duda Company, a Texas corporation, its general partner By: Duda, President IROIDOCS \743463.9 \CO24843\0378039 14 -11 APPROVAL AS TO FORM AND CONTENT BY COUNSEL PAUL HASTINGS LLP Dated: February _, 2015 By: Don Morrow Attorneys for Lido Partners, a California limited partnership 10 IRO I DOCS\743463.91CO24843 \0378039 14 -12 EXHIBIT "1" Legal Description of City Property THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, AND IS DESCRIBED AS FOLLOWS: PARCELI: THAT PORTION OF LOTS 3, 6 AND 7 IN SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT FILED IN THE DISTRICT LAND OFFICE, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF "THE HUDSON" WITH THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT 21 IN BLOCK 431 OF "LANCASTER'S ADDITION TO NEWPORT BEACH ", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE NORTH 0'44'30" WEST ALONG SAID NORTHERLY PROLONGATION 400.00 FEET; THENCE WESTERLY PARALLEL WITH SAID NORTHERLY LINE AND LOT 1 IN BLOCK "A" OF SAID LANCASTER'S ADDITION TO NEWPORT BEACH 461.53 FEET TO A POINT IN THE EASTERLY LINE OF SAID CENTRAL AVENUE, AS SHOWN ON TRACT NO. 108, AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGES 1 OF SAID MISCELLANEOUS MAPS; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID CENTRAL AVENUE 401.79 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE EASTERLY ALONG THE NORTHERLY OF SAID LOT 1 AND SAID NORTHERLY LINE OF "THE HUDSON" 495.33 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE LAND DESCRIBED IN THE DEED ATTACHED TO THAT CERTAIN RESOLUTION NO. 3284 OF THE CITY COUNCIL OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH11, 1946 IN BOOK 1404, PAGE130 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. ALSO EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 2 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS. PARCEL2: BEGINNING AT THE SOUTHEAST CORNER OF LOT 2 IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH ", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE EASTERLY ALONG THE NORTHERLY LINE OF WASHINGTON AVENUE, NOW KNOWN AS 32 NO STREET, TO THE INTERSECTION WITH THAT PORTION OF THE BULKHEAD LINE ESTABLISHED BY THE WAR DEPARTMENT IN 1936 AND SHOWN ON THE WAR DEPARTMENT MAP OF NEWPORT BAY SHOWING HARBOR LINE, EXTENDING BETWEEN BULKHEAD STATION NO.124 AND BULKHEAD STATION NO.125; THENCE NORTH 27'30'00" WEST ALONG SAID BULKHEAD LINE TO ITS INTERSECTION WITH THE NORTHERLY LINE OF "THE HUDSON" AS SHOWN ON SAID MAP OF LANCASTER'S ADDITION; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID "THE HUDSON" TO THE NORTHEAST CORNER OF LOT 1 OF SAID BLOCK "A'; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOTS 1 AND 2 TO THE POINT OF BEGINNING. Exhibit 1 IROI DOCS \743463.9 \CO24843 10378039 14 -13 PARCEL 3: THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGES 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE 20.00 FOOT ALLEY AS VACATED BY RESOLUTION NO. 3280 OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH 11, 1946 IN BOOK 1400, PAGE 189 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST ALONG THE EASTERLY LINE OF SAID LOT 3, A DISTANCE OF 90.00 FEET; THENCE NORTH 40'47'07" WEST 170.97 FEET TO A POINT IN THE WESTERLY LINE OF SAID 20.00 FOOT ALLEY; THENCE SOUTH 0'44'30" EAST ALONG THE WESTERLY LINE OF SAID ALLEY 220.89 FEET TO THE SOUTHWESTERLY CORNER OF TRACT NO. 907, AS SHOWN ON A MAP RECORDED IN BOOK 28, PAGES 25 TO 36 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 89'15'30" EAST ALONG THE SOUTHERLY LINE OF SAID TRACT NO. 907 AND SAID LOT 3, A DISTANCE OF 110.00 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. ALSO EXCEPTING THEREFROM THE LAND DESCRIBED IN DEED TO THE GRIFFITH COMPANY RECORDED JUNE 15, 1953 IN BOOK 2520, PAGE 577 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. PARCEL4: THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGE 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST 74.46 FEET ALONG THE EAST LINE OF SAID LOT TO THE MOST SOUTHERLY CORNER OF THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 40'47'07" WEST ALONG THE SOUTHWESTERLY LINE OF SAID LAND OF GRIFFITH COMPANY, A DISTANCE OF 69.945 FEET; THENCE NORTH 89'15'30" EAST 45.00 FEET TO THE EAST LINE OF SAID LOT 3; THENCE SOUTH 944'30" EAST 53.54 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 5: LOTS ONE (2) AND TWO (2) IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH' AS SHOWN ON A MAP RECORED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA Exhibit I IR01 D0CS\743463.91CO24843 \0378039 14 -14 EXHIBIT "2" Legal Description of Lido Partners Property ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, DESCRIBED AS FOLLOWS: PARCEL l: PARCEL 1, AS SHOWN ON A MAP PARCEL MAP FILED IN BOOK 85, PAGES 1 AND 2 OF PARCELS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2: A NON- EXCLUSIVE EASEMENT GRANTED IN AN INDENTURE OF EASEMENT RECORDED DECEMBER 2,1976 IN BOOK 11981, PAGE 602 OF OFFICIAL RECORDS, OVER THE FOLLOWING DESCRIBED PROPERTY: THAT PORTION OF SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: THE WESTERLY 180 FEET OF THE NORTHERLY 50 FEET OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN A QUITCLAIM DEED TO THE CITY OF NEWPORT BEACH, RECORDED IN BOOK 1011, PAGE 379 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. EXCEPTING THEREFROM, THAT PORTION OF PARCEL 2 AS DESCRIBED IN A DEED RECORDED IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS, WHICH LIES WITHIN THE PARCEL FIRST DESCRIBED ABOVE. Exhibit 2 IRO DOCS\743463.9 \CO24843\0378039 14 -15 f EXHIBIT "3" Depiction of Lido Village Partners Property VIA LIDO PLAZA PROJECT SUMMARY SITE AREA ± 4.92 Acres ± 214,108 SF. BUILDING AREA TOTAL: 86,591 SF PARKING AREA PROVIDED: 312 STALLS REQUIRED: 296 STALLS SURPLUS: 1 16 STALLS Legend - - - - -. Current Truck Route 1 i 3v B(QG, I •e:% COuRIygRO \ �� I � I ' I u ° B G ii o e I o I 0 �, �M• r------- - - - - -- }} ER r , 1 1 NEWPO BRACH �, nterim Access Route I CITY HAL CEL r I 1 M-7) I VIA MALAGA --� 14 -16 —60 1 I 1 1 I i 1 f' 1 EXHIBIT "3 -A" New Truck Access Route IIIIIU IIIIIU.� ley I I� Q � �F:n.ovnwl � I I I I I I I I I II1 II I� 1 � I I II i ;I I I II 1 VIA LIDO PLAZA PROJECT SUMMARY SITE AREA ± 4.92 Acres ± 214,108 SF. BUILDING AREA TOTAL: 86,591 SF PARKING AREA (Proposed) PROVIDED: ESTIMATED: 305 STALLS REQUIRED: ESTIMATED: 1289 STALLS SURPLUS: ESTIMATED: 1 16 STALLS Le end E - - - - -- "New Truck Access Route" Future Proposed Validated Parking Control Area " `�,• , cO�gr y \ LID 0 o° 0 rim 0 LCITT!M R CEL r -- Exhibit "3 -A ": New Truck o - 1 1 � S 7 — i%%z �— n %% Route VIA MALAM —, -Ne Truck Access Route" 14 -17 EXHIBIT ` 14" Parking Covenant Agreement [See attached] Exhibit 4 IR0 I DOCW43463.91CO24843 \0376039 14 -18 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Bryan Cave LLP 3161 Michelson Drive, Suite 1500 Irvine, California 92612 Attention: Holly P. Lopez, Esq PARKING COVENANT AGREEMENT 3425 Via Lido, Newport Beach, California; Assessor Parcel No. 423- 11 -01) THIS COVENANT AGREEMENT ( "Agreement ") is made and entered into this day of February, 2015, by and between LIDO PARTNERS, A CALIFORNIA LIMITED PARTNERSHIP as fee owner ( "Owner') of that certain property commonly known as "Via Lido Shopping Center," Newport Beach California as more particularly described on Exhibit "A" attached hereto and incorporated herewith, and the CITY OF NEWPORT BEACH, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, ( "City"). W.I•TNESSETH: WHEREAS, Owner is the vested fee owner of property located at 3425 Via Lido, Newport Beach, California, County Assessors Parcel Number 423 -11 -01 ( "Property "). WHEREAS, the City has agreed to reduce the number of parking spaces required for the Property and after taking into account such reduction, the parties desire to verify the amount of parking spaces required by the City for the Property and the amount of parking spaces provided by Owner for the Property. NOW, THEREFORE, the parties hereto agree as follows: The number of parking spaces required by the City for the Property is U and the number of parking spaces provided by Owner for the Property is [_ 1, effecting a surplus of [ I parking spaces for the Property. The foregoing shall be effective for all purposes, including without limitation, applications, submittals, building permits by Owner or any of Owner's lessees, tenants, successor's or assigns, relating to the ownership or use of the Property, 2. That this agreement shall run with the real property herein described, in favor of and enforceable by the City of Newport Beach. 749000.1 14 -19 3. That this agreement shall be.binding upon our heirs, successors and assigns 4. This Covenant and Agreement shall run with the land, and shall be binding upon the undersigned, and any and all future owners, encumbrances, successors in interest, heirs, and assignees who acquire, in any way, all or any portion of the title to the Property; shall be recorded in the office of the County Recorder of Orange county; and shall continue in effect until such time as the City of Newport Beach and Owner release this covenant via written instruments. 103U N A0 Lido Partners, a California limited partnership By: Fritz Duda Company, a Texas corporation, its general partner By: Fritz L. Duda, President DA CITY: [Owners' signatures must be notarized] APPROVED FOR RECORDING: CITY OF NEWPORT BEACH, A California municipal corporation 92 Dave Kiff, City Manager ATTEST: DATE: Leilani I. Brown, City Clerk A10 -00674 749000.1 DATE: APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY DATE: Aaron C. Harp, City AttorneyEJOZ1I`11If 21 Page fLDli INSERT NOTARY FORM 749000.1 14 -21 EXHIBIT "A" Legal Description of Owner's Property ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, DESCRIBED AS FOLLOWS: PARCEL1: PARCEL 1, AS SHOWN ON A MAP PARCEL MAP FILED IN BOOK 85, PAGES 1 AND 2 OF PARCELS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2: A NON - EXCLUSIVE EASEMENT GRANTED IN AN INDENTURE OF EASEMENT RECORDED DECEMBER 2, 1976 IN BOOK 11981, PAGE 602 OF OFFICIAL RECORDS, OVER THE FOLLOWING DESCRIBED PROPERTY: THAT PORTION OF SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: THE WESTERLY 180 FEET OF THE NORTHERLY 50 FEET OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN A QUITCLAIM DEED TO THE CITY OF NEWPORT BEACH, RECORDED IN BOOK 1011, PAGE 379 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. EXCEPTING THEREFROM, THAT PORTION OF PARCEL 2 AS DESCRIBED IN A DEED RECORDED IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS, WHICH LIES WITHIN THE PARCEL FIRST DESCRIBED ABOVE. 749000.1 14 -22 RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: City of Newport Beach Attention: City Manager 3300 Newport Boulevard Newport Beach, CA 92659 -1768 This document is exempt from recording fees per Government Code Section 27383 and is exempt from Document Transfer Tax per Revenue and Taxation Code Section 11922. EXHIBIT "5" Quitclaim THIS SPACE FOR QUITCLAIM DEED FOR A VALUABLE CONSIDERATION, receipt and adequacy of which is hereby acknowledged, LIDO PARTNERS, a California limited partnership does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to the CITY OF NEWPORT BEACH, a California municipal corporation, hereinafter referred to as "CITY ", in an "as is" condition, all RIGHTS, TITLE and INTEREST in and to that certain real property legally described in Exhibit A ( "Property"), which exhibits are attached hereto and made a part hereof. IN WITNESS WHEREOF, this instrument has been executed on LIDO PARTNERS, a California limited partnership By: Fritz Duda Company, a Texas Corporation its, general partner By: Fritz L. Duda, President Exhibit 5 14 -23 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY That portion of the alley, 20 feet in width as shown on the map of Tract No. 908 recorded in Book 28, Pages 25 through 36 inclusive, of Miscellaneous Maps in the office of the County Recorder of Orange County, adjoining Lots 1178 through 1 192 inclusive, and lying southerly of the southerly line of the land described as Parcel I in the deed to the Griffith Company, recorded March 3, 1948 in Book 1741 of Official Records of Orange County, California. Exhibit 5 14 -24 CERTIFICATE OF ACCEPTANCE Pursuant to the provisions of Resolution No. 92 -82 approved July 27, 1992, of the City of Newport Beach, State of California, I, David A. Kiff, City Manager of the City of Newport Beach, hereby request recordation of the within Quitclaim Deed, and accept on behalf of the public the interest in real property conveyed by the within Quitclaim Deed dated from the County of Orange. Dated: APPROVED AS TO FORM: By: Aaron C. Haze, City Attorney aV /I,11j ATTEST: Leilani I. Brown, City Clerk CITY CITY OF NEWPORT BEACH, a California municipal corporation m David A. Kiff, City Manager Exhibit 5 14 -25