HomeMy WebLinkAbout12 - Uptown Newport Development Agreement Amendment Located at 4311-4321 Jamboree Road (PA2015-015)CTY OF
F
NEWPORT BEACH
City Council Staff Report
April 28, 2015
Agenda Item No. 12
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Kimberly Brandt, Community Development Director — (949) 644 -3226,
kbrandt @newportbeachca.gov
PREPARED BY: Rosalinh Ung, Associate Planner
PHONE: (949) 644 -3208
TITLE: Uptown Newport Development Agreement Amendment Located at 4311 -4321
Jamboree Road (PA2015 -015)
ABSTRACT:
An amendment to Uptown Newport Development Agreement No. DA2012 -003 (DA) pertaining to the timing
of the payment of public benefit fees and in -lieu of parkland dedication fees (park fees).
RECOMMENDATION:
a) Conduct public hearing;
b) Find that all significant environmental concerns for the Uptown Newport project have been addressed
in the previously certified Environmental Impact Report No. ER2012 -001 (SCH No. 2010051094), and the
City of Newport Beach intends to use said document for the above noted project, and further that there are
no additional reasonable alternative or mitigation measures that should be considered in conjunction with
said project; and
c) Introduce City Council Ordinance No. 2015 -11, An Ordinance of the City Council of the City of Newport
Beach Approving First Amendment to Development Agreement No. DA 2012 -003 for the 25.05 Acre
Planned Community Known as Uptown Newport Located at 4311 -4321 Jamboree Road (PA2015 -015)
(Staff Report Attachment No. CC1), and pass to second reading on May 12, 2015.
FUNDING REQUIREMENTS:
The proposed DA amendment includes an 18 to 24 -month postponement of the public benefit fee payment
to the City. However, the DA does provide for an annual increase to the public benefit fee based on a cost
of living escalator. Therefore, the proposed fee payment deferral will result in an overall higher fee
payment to the City. Based on 1,244 units, the total public benefit fee payment to the City is $40,430,000,
prior to the application of any cost of living escalator.
The proposed amendment also includes a payment deferral of the park fees, for which the current DA does
not include a cost of living escalator. To offset the proposed delay of the park fee payment in each phase,
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staff has negotiated with the applicant to include in the DA the addition of a four percent (4 %) annual
interest rate on any deferred park fees due for Phase 1. For Phase 2, the proposed annual interest rate is
five percent (5 %) on any deferred park fees. Staff believes that these rates will reflect the City's average
cost of borrowing in these development timeframes.
Based on the DA's terms, the project's total park land dedication requirement is 13.62 acres. The
established fair market value for the park land is $2,500,000 per acre, which results in a total park land
value of $34,050,000. This is the total value before the application of any credits for park land dedication
and public and private recreational improvements as allowed by the DA terms.
DISCUSSION:
Background
On February 26, 2013, City Council approved the DA, along with other entitlement applications for the
Uptown Newport project; consisting of removing existing office and industrial uses in two primary phases
and constructing a mixed -use community consisting of 1,244 residential units, 11,500 square feet of
neighborhood - serving retail space, and approximately two acres of park space. The property is located
within the Airport Area and is approximately 25.05 acres in size located along the west side of Jamboree
Road at Fairchild Drive (Attachment CC4).
The project will be built in two phases. Phase 1 is currently underway and includes the demolition of an
existing single -story office building at 4311 Jamboree Road (the "Half Dome Building "), and development of
up to 680 residential units, 11,500 square feet of retail, one 1 -acre park, and associated infrastructure
including roads, sidewalks, utilities, and landscaping. The infrastructure plans are being prepared, and the
Picerne Group has been identified as the first builder of two apartment buildings within Phase 1. Building
permits for new residential development are expected to be issued by the end of 2015. Phase 1 is expected
to be completed in 2018. Phase 2 includes the remaining 564 residential units on the easterly portion of the
property. Timing for Phase 2 construction is contingent on the existing lease with the TowerJazz facility,
which expires in March 2017, but could be extended to March 2027 by TowerJazz.
The DA is an agreement between the applicant and the City that describes the development rights provided
by the City and public benefits to be provided by the applicant. The DA vests the applicant's development
rights to implement the Uptown Newport Planned Community for a period of 15 years, with two additional 5-
year extension options (Attachment CC5).
Planning Commission Recommendations
On March 19, 2015, the Planning Commission conducted a public hearing and recommended Council
approval of the amendment (3 ayes, 2 noes, 1 recusal, and 1 absent). Additionally, the Commission
recommended that Council consider requiring additional public benefits in exchange for the proposed delay
in fee payments. The Commission did not request that any specific public benefit be added to the
agreement (Attachments CC2 and CC3).
Proposed Development Agreement Amendment
The applicant proposes to amend the DA as follows:
1. Modify Section 3.1 to defer the payment of the public benefit fees from payment due at the issuance of
building permits to payment due at the issuance of certificates of occupancy.
Section 3.1 of the DA requires the applicant pay a public benefit fee on a per -unit basis prior to the issuance
of each building permit in the amount of $32,500 per residential unit. This fee is also to be adjusted annually
for inflation beginning on January 1, 2015. The applicant is proposing to amend Section 3.1 to change the
timing for the payment of the public benefit fee to be paid prior to occupancy on a building -by- building basis.
Staff estimates that this is an 18 to 24 -month delay in fee payment, which will result in a larger fee payment
to the City based on the Consumer Price Index escalator provided in the DA.
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As of January 1, 2015, the public benefit fee has increased from $32,500 to $32,695 per unit, and the
Finance Department estimates that Consumer Price Index will grow by 1.75% per year in all the following
years of the agreement's term. For example, on January 1, 2016, the fee is estimated to increase
to $33,267 per unit.
Community Development staff asked the Finance Department how delaying the fees for up to two years
might impact the Facilities Financing Program, as its funding and expenditures are based in part on a series
of timed developer fee contributions such as these from Uptown Newport. The Finance Department stated
that the Facilities Financial Plan can withstand a delay of Newport Uptown's Phase 1 public benefit fees for
up to two years, but a delay beyond Fiscal Year 2017 -18 could lead to a delay of a project like the West
Newport Community Center which is currently contemplated to start in Fiscal Year 2017 -18.
The fee payment deferral to issuance of the certificates of occupancy may also raise the concern that the
applicant may be unable or unwilling to pay the fees at the time construction has been completed. Staff
notes that the DA does contain remedies should the applicant default on its obligations, which ensure that
the City will be able to recover public benefit fees. Specifically Sections 8.7 and 8.8 state the following:
"8.7 Monetary Damages
The Parties agree that monetary damages shall not be an available remedy for either Party for a Default
hereunder by the other Party provided, however, that (i) nothing in this Section 8.7 is intended or shall be
interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Landowner as set
forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Owner's
indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its
litigation expenses, as set forth in Section 8.10. (emphasis added)
118.8 Additional City Remedy for Landowner's Default.
In the event of any Default by Landowner, in addition to any other remedies which may be available to
City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions
applicable to the Project or the Property, including any fees, grants, dedications, or improvements to
public property which it may have received prior to Landowner's Default without recourse from Landowner
or its successors or assigns." (emphasis added)
2. Modify Section 3.2.1 to defer the payment of park fees from payment due for all units at the issuance of
the first building permit for any unit in a final subdivision map to payment due at the issuance of building
permits on a per -unit basis.
In order to meet the project's obligation to provide 13.62 acres of parkland, Section 3.2.1 of the DA requires
the applicant to pay park fees in addition to the development and dedication of two 1 -acre public parks, one
park in each phase of development. The park fees are due for all units included on a final map prior to the
first building permit being issued for any unit. In other words, the fee payment for all the units within Phase 1
is due with the issuance of the first building permit.
The applicant is requesting to amend Section 3.2.1 to modify the fee payment to occur incrementally in
conjunction with the issuance of building permits for each unit. The DA does not include any type of
inflationary escalator for the park fees; therefore, the City would lose the use of the money over an
unspecified period of time without any offset in the fee payment.
Based on the DA's terms, the project's total park land dedication requirement is 13.62 acres. The
established fair market value for the park land is $2,500,000 per acre, for a total value of $34,050,000. This
is the total value before the application of any credits for park land dedication and improvements as allowed
by the development agreement terms. For Phase 1, staff has calculated the project's total parkland
dedication value as $16,959,754. This total amount will be reduced after the application of credits for
dedication and public and private recreational improvements.
In response to the Planning Commission's recommendation that an additional public benefit be added to the
DA, staff has negotiated with the applicant to apply an annual interest rate to any deferred park fee payment
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associated with each phase of development. Section 3.2.1.iv of the proposed amendment requires the
application of a four percent (4 %) annual interest rate on any Phase 1 deferred park fees. For Phase 2, the
proposed annual interest rate is five percent (5 %) on any deferred park fees. Staff believes that these
interest rates will reflect the City's average cost of borrowing in these development timeframes and is a fair
offset to the fee payment deferral.
Summary
The proposed amendments (Attachment CC6) will not affect the original project approval or the DA's
overall terms, conditions or development rights, with exception of the timing of the public benefit and park
fees. The proposed payment timing would be similar to the timing of payments required for the Meridian
Condominium Project (former Santa Barbara Condominiums) currently under construction in Newport
Center. Staff believes that the cost of living escalator for the public benefit fee and the proposed interest
rates associated with any park fee deferral will offset the delay in fee payments. The proposed
amendments have also been reviewed by the City Attorney's Office for code compliance and accuracy.
ENVIRONMENTAL REVIEW:
All significant environmental concerns for the Uptown Newport project have been addressed in the
previously certified Environmental Impact Report No. ER2012 -001 (SCH No. 2010051094), and the City of
Newport Beach intends to use said document for the above noted project, and further that there are no
additional reasonable alternative or mitigation measures that should be considered in conjunction with said
project. Copies of the previously prepared environmental document are available for public review and
inspection at the Planning Division or at the City of Newport Beach website at
www.newportbeachca.gov/cegadocuments.
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). Notice of this hearing was also published in the Daily Pilot and
the item was shown on the agenda for this meeting, which was posted at City Hall and on the City website.
Notice of this application was published in the Daily Pilot, mailed to all owners of property within 300 feet of
the boundaries of the site (excluding intervening rights -of -way and waterways), including the applicant, and
posted on the subject property at least 10 days before the scheduled meeting, consistent with the
provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which
was posted at City Hall and on the City website.
ATTACHMENTS:
Description
Attachment CC1 -Draft Ordinance
Attachment CC2 - March 19, 2015, Planning Commission Minutes
Attachment CC3 - March 19, 2015, Planning Commission Staff Report
Attachment CC4 - Vicinity Map
Attachment CC5 - Recorded DA and Assignments
Attachment CC6 - Draft DA Amendment - Redlined
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Attachment No. CC 1
Draft Ordinance
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ORDINANCE NO. 2015-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH APPROVING FIRST AMENDMENT TO DEVELOPMENT
AGREEMENT NO. DA2012 -003 FOR THE 25.05 ACRE PLANNED
COMMUNITY KNOWN AS UPTOWN NEWPORT LOCATED AT 4311-
4321 JAMBOREE ROAD (PA2015 -015)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by TSG- Parcel 1, LLC. ( "Uptown Newport') with respect
to a 25.05 -acre property located at 4311 and 4321 Jamboree Road which has
already been approved for the development of up to 1,244 residential dwelling
units, 11,500 square feet of retail commercial uses and 2.05 acres of parklands (the
"Project "), legally described as Parcels 1 through 4 of Parcel Map No. 2013 -108,
requesting an amendment to Development Agreement No. DA2012 -003.
2. The applicant proposes to amend the following sections of Development
Agreement No. DA2012 -003:
a. Section 3.1: To defer the payment of public benefit fees to the City from
the issuance of building permits to the issuance of certificates of
occupancy, as an option; and
b. Section 3.2.1: To defer the payment of fees in -lieu of parkland dedication for
all units at the issuance of the first building permit for any unit in a final
subdivision map to the issuance of building permits on a per -unit basis.
3. The subject property is located within the Uptown Newport Planned Community
Zoning District (PC -58) and the General Plan Land Use Element category is Mixed -
Use Horizontal 2 (MU -112).
4. The subject property is not located within the coastal zone.
5. On February 26, 2013, the Newport Beach City Council ( "City ") held first reading of
Ordinance No. 2013 -6 for approval of Development Agreement No. DA2012 -003.
In addition, on March 12, 2013, the City Council held second reading and adopted
Ordinance No. 2013 -6 approving Development Agreement No. DA2012 -003.
Ordinance No. 2013 -6 became effective on or around April 11, 2013.
6. Development Agreement No. DA2012 -003 is dated March 12, 2013, for reference
purposes, and was recorded in the Official Records of Orange County on March
26, 2013, as document number 2013000180939 (the "Development Agreement').
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7. On or around February 14, 2014, Uptown Newport transferred ownership of the
Property and assigned the Development Agreement to TSG- Parcel 1, LLC, a
Delaware limited liability company, Uptown Newport Jamboree, LLC, a Delaware
limited liability company, and TPG/TSG Venture I Acquisition, LLC, a Delaware
limited liability company (collectively, the "Property Owners ").
8. Section 3.1 of the Development Agreement requires the payment of a Public
Benefit Fee to the City in the sum of Thirty -Two Thousand Five Hundred Dollars
($32,500.00) (subject to an inflationary escalator at the time of payment) per
residential dwelling unit developed as part of the Project at the time a building
permit is issued for each residential dwelling unit.
9. In addition to constructing and improving two (2) approximately one (1) acre parks,
Property Owners are also required to pay fees in -lieu of parkland dedication to the
City, based on the pro -rated gross acreage of the final map minus any parkland
dedication and applicable credits, for all units included on a final map at the time
that the first building permit is issued for a unit within that final map.
10. On January 27, 2015, the Property Owners submitted an application to amend the
Development Agreement as set forth in the First Amendment to Development
Agreement, attached hereto as "Exhibit A" and incorporated herein by reference
(the "First Amendment').
11. The Uptown Newport Final Environmental Impact Report (SCH No. 2010051094),
which consists of the Comments, Responses to Comments, and Revisions to the
DEIR (Draft Environmental Impact Report), a Statement of Overriding
Considerations, and Mitigation Monitoring and Reporting Program was prepared for
the Project in compliance with the California Environmental Quality Act (CEQA), the
State CEQA Guidelines, and City Council Policy K -3.
12. The Newport Beach City Council, having final approval authority over the
Project, adopted and certified as complete and adequate, the Uptown Newport
Final Environmental Impact Report, and adopted "Findings and Facts in Support
of Findings for the Uptown Newport Project Final Environmental Impact Report'
( "CEQA Findings ") contained within Resolution No. 2013 -21 on February 26,
2013, which are hereby incorporated by reference.
13. The Planning Commission held a public hearing for the First Amendment on
March 19, 2015. At the public hearing with a vote of 3 ayes, 2 noes, 1 recused
and 1 absent, the Planning Commission adopted Resolution No. 1976,
recommending the City Council approve the First Amendment and consider the
imposition of additional financial incentives benefitting the City in exchange for
the delay in the fee payments.
14. On April 14, 2015, the City Council continued the consideration of First
Amendment to the April 28, 2015, City Council meeting.
`RAVE
15. A public hearing was held on April 28, 2015 in the Council Chambers at 100 Civic
Center Drive, Newport Beach. A notice of time, place and purpose of the meeting
was given in accordance with the Newport Beach Municipal Code. Evidence,
both written and oral, was presented to, and considered by, the City Council at
this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
All significant environmental concerns for the proposed project have been addressed in
the previously certified Environmental Impact Report No. ER2012 -001 (SCH No.
2010051094), and the City of Newport Beach intends to use said document for the
above -noted project, and further that there are no additional reasonable alternative or
mitigation measures that should be considered in conjunction with said project. Copies
of the previously prepared environmental document are available for public review and
inspection at the Planning Division or at the City of Newport Beach website at
www.newportbeachca.gov/cegadocuments.
SECTION 3. FINDINGS.
In accordance with Chapter 15.45 of the Newport Beach Municipal Code, the following
findings and facts in support of such findings are set forth:
Finding:
A. The First Amendment is consistent with the General Plan and the Uptown
Newport Planned Community Development Plan (PCDP), Municipal Code and
Subdivision Map Act.
Facts in Support of Finding:
1. The Amendment will continue to allow the development of a residential
community, containing a mix of housing types, supporting retail and active
parklands, consistent with the land uses, densities and intensities of the PCDP
which is the zoning document for the Project, the General Plan Land Use
designation of Mixed -Use Horizontal -2 and the Airport Business Area Integrated
Conceptual Development Plan.
2. The changes included in the Amendment are to defer the timing for the payment
of the Public Benefit Fee to be on a per -unit basis upon issuance of certificates of
occupancy, instead of building permits, and to change the timing of the payment of
fees in -lieu of parkland dedication to a per -unit basis at the time a building permit
for an individual Project is issued, rather than issuance of the first building permit
for all units within a final map.
3. These changes do not add any lots, units, building sites or structures to the
Project and does not change the approved design or uses allowed by the
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Uptown Newport Planned Community. The fee payments and parkland
dedication will remain a requirement for the project.
4. The Uptown Newport project approval included detailed findings and facts in
support of these findings that demonstrate the Project's conformity with, among
other things, the General Plan, PCDP, Municipal Code and the Subdivision Map
Act. All of those findings are still applicable to the Project, and are incorporated
by reference into this Resolution.
SECTION 4. DECISION.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN
AS FOLLOWS:
1. The Statement of Facts, CEQA Determination and Required Findings set forth
above are true and correct and incorporated herein by reference.
2. The First Amendment to Development Agreement No. DA2012 -003 shall be
adopted as depicted in Exhibit "A" attached hereto and incorporated by
reference.
3. If any section, subsection, sentence, clause or phrase of this ordinance is, for
any reason, held to be invalid or unconstitutional, such decision shall not affect
the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, clause or phrase hereof, irrespective of the fact that anyone
or more sections, subsections, sentences, clauses or phrases be declared
unconstitutional.
4. This action shall become final and effective thirty (30) days after the adoption of
this Ordinance.
5. The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. This Ordinance shall be published once in the official newspaper of
the City, and the same shall become effective thirty (30) days after the date of its
adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on the 28th of April, 2015, and adopted on the 12th day of May,
2015, by the following vote, to wit:
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AYES, COUNCIL MEMBERS
NOES. COUNCIL MEMBERS
ABSENT. COUNCIL MEMBERS
MAYOR
Edward D. Selich, Mayor
r_IIIIIIIIr0020
Leilani I. Brown, City Clerk
APPROVED AS TO FORM,
CITY P RNEY'S OFFICE:
Aaron . Harp, City Attorney
for the City of Newport Beach
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EXHIBIT A
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code Sections 6103 and
27383.
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
TSG- PARCEL 1, LLC, TPG /TSG VENTURE I ACQUISITION, LLC, AND
UPTOWN NEWPORT JAMBOREE, LLC
CONCERNING UPTOWN NEWPORT PROPERTY
a.S0'_ms,2
1251052.2
12 -12
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
(Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government
Code sections 65864- 65869.5)
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First
Amendment ") is dated for reference purposes as of the _ day of 2015 (the
"Amendment Date"), and is being entered into by and between the CITY OF NEWPORT
BEACH (`City "), on the one hand, and TSG- Parcel 1, LLC, a Delaware limited liability
company, TPG /TSG Venture I Acquisition, LLC, a Delaware limited liability company and
Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the
"Landowner" or "Landowners "), on the other. City and Landowners are sometimes
collectively referred to in this First Amendment as the "Parties" and individually as a "Party.'
RECITALS
A. Landowners are the owners of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as Uptown
Newport, located at 4311 -4321 Jamboree Road (APN Nos. 445 - 131 -02 and 445 - 131 -03), and
generally located on the west side of Jamboree Road, between Birch Street and Fairchild Road
(the "Property'). The Property is more particularly described in the legal description attached
hereto as Exhibit A and incorporated herein by reference.
B. City and Uptown Newport LP, a Delaware limited partnership, entered into that
certain Development Agreement dated March 12, 2013, for reference purposes and recorded in
the Official Records of Orange County on March 26, 2013, as document number
2013000180939 (the "Agreement "). All terms not otherwise defined in this First Amendment
shall have the meanings given them in the Agreement.
C. On or around February 14, 2014, Uptown Newport, LP, a Delaware limited
partnership, transferred ownership of the Property and assigned the Agreement to TSG - Parcel 1,
LLC, a Delaware limited liability company, TPG /TSG Venture I Acquisition, LLC, a Delaware
limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability
company.
D. Under the Agreement, Landowners must pay a Public Benefit Fee to the City in
the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00), as adjusted according to
the Agreement, per residential dwelling unit developed as part of the Project at the time each
residential building permit is issued. The Parties now desire to amend the Agreement as set forth
in this First Amendment to require payments of the Public Benefit Fee at the issuance of
building permits, or at Landowner's option, at the issuance of certificates of occupancy per
residential dwelling unit.
E. In addition to constructing and improving two (2) approximately one (1) acre
parks, Landowners are also required to pay certain parkland dedication in -lieu fees to the City,
based on the pro -rated gross acreage of the final map minus any parkland dedication and
applicable credits, for all units included on a final map at the time that the first building permit is
issued for a unit on that final map. The Parties now desire to amend the Agreement as set forth in
4 20 2019 c2 -1- 12510522
12 -13
this First Amendment to allow the Landowner, as an alternative, to defer payment of all or a
portion of the parkland dedication in -lieu fees, but an interest charge will accrue and be applied
at time of payment(s), as more specifically described below. Additionally, the Parties now desire
to amend the Agreement as set forth in this First Amendment to require payment of parkland
dedication in -lieu fees, as applicable, on a per -unit basis at the issuance of a building permit for
individual buildings in the Project.
F. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This First
Amendment is consistent with the Development Agreement Ordinance.
G. This First Amendment is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "Mixed -Use
Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown
Newport Planned Community Development Plan.
H. On March 19, 2015, the Planning Commission held a properly noticed public
hearing on this First Amendment and considered the testimony and information submitted by
City staff, Landowners, and members of the public. On March 19, 2015, consistent with
applicable provisions of the Development Agreement Statute and Development Agreement
Ordinance, the Planning Commission adopted Resolution No. 1976, recommending the City
Council approve this First Amendment.
1. In recognition of the significant public benefits that the Agreement, as amended,
provides, the City Council has found that this First Amendment: (i) is consistent with the City of
Newport Beach General Plan as of the date of the Agreement and this First Amendment; (ii) is in
the best interests of the health, safety, and general welfare of City, its residents, and the public;
(iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is
consistent and has been approved consistent with the final Environmental Impact Report (No.
ER2012 -001) (SCH #2010051094) ("EIR ") that has been certified by the City Council on or
before the Agreement Date, which analyzed the environmental effects of the proposed
development of the Project on the Property, and all of the findings, conditions of approval and
mitigation measures related thereto; and (v) is consistent and has been approved consistent with
provisions of California Government Code section 65867 and City of Newport Beach Municipal
Code chapter 15.45.
J. On April 28, 2015, the City Council held a properly noticed public hearing on this
First Amendment and considered the testimony and information submitted by City staff,
Landowners, and members of the public. On May 12, 2015, consistent with applicable
provisions of the Development Agreement Statute and Development Agreement Ordinance, the
City Council held second reading and adopted Ordinance No. 2015 -8, finding the First
Amendment to be consistent with the City of Newport Beach General Plan and approving this
First Amendment.
4 20 2015 c2 2 1251052.2
PfINL!
AGREEMENT
NOW, THEREFORE, City and Landowners agree as follows:
I. Public Benefit Fee. Section 3.1 is hereby amended in its entirety to read as
follows:
"As consideration for City's approval and performance of its obligations set forth
in this Agreement, Landowner shall pay to City a fee that shall be in addition to
any other fee or charge to which the Property and the Project would otherwise be
subject (herein, the "Public Benefit Fee ") in the sum of Thirty -Two Thousand
Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as
part of the Project, with the unpaid balance of said Public Benefit Fee increased
beginning on January 1, 2015, by the percentage increase in the CPI Index
between the Effective Date and said January I st date (the first "Adjustment Date ")
and thereafter with the unpaid balance of said Public Benefit Fee increased on
each subsequent January I during the Tenn of this Agreement (each, an
"Adjustment Date ") by the percentage increase in the CPI Index in the year prior
to the applicable Adjustment Date. The amount of the percentage increase in the
CPI Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for
example, if the Effective Date of this Agreement falls on July I and the most
recently available CPI Index figure on the first Adjustment Date (January 1 of the
following year) is the CPI Index for November of the preceding year, the
percentage increase in the CPI Index for that partial year (a 6 -month period) shall
be calculated by comparing the CPI Index for November of the preceding year
with the CPI Index for May of the preceding year (a 6 -month period). In no event,
however, shall application of the CPI Index reduce the amount of the Public
Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any
applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per
unit basis at the time each residential building permit is issued, or at Landowner's
option and in Landowner's sole discretion, at the time each certificate of
occupancy is issued. Notwithstanding any other provision set forth in this
Agreement to the contrary, during the Term of this Agreement City shall not
increase the Public Benefit Fee except pursuant to the CPI Index as stated in this
Section 3.1. Landowner acknowledges by its approval and execution of this
Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its
obligation to pay the Public Benefit Fee is an essential tern of this Agreement and
is not severable from City's obligations and Landowner's vesting rights to be
acquired hereunder, and that Landowner expressly waives any constitutional,
statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such fee on any ground whatsoever, including
without limitation pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution, California Constitution Article I Section 19, the Mitigation
Fee Act (California Government Code Section 66000 et seq.), or otherwise. In
addition to any other remedy set forth in this Agreement for Landowner's default,
if Landowner shall fail to timely pay any portion of the Public Benefit Fee when
J 201015 Q
3
1251052.2
12 -15
due City shall have the right to withhold issuance of any further building permits,
occupancy permits, or other development or building permits for the Project."
2. Park Fees. Section 3.2.1, subdivision (iv), is hereby amended in its entirety to
read as follows:
"In -lieu of parkland dedication fees ("Park In -Lieu Fees ") shall be paid to the City
prior to the issuance of building permits. Payment of Park In -Lieu Fees shall be
made for all units included on any final map(s) at the time that the first building
permit is issued for any single unit included on a final map(s). However, at
Landowner's option and in Landowner's sole discretion, Landowner may elect to
defer payment(s) of Park In -Lieu Fees for some or all units contained on any final
map(s) (the "Deferred Units ") until building permits are sought for the building or
buildings containing those Deferred Units. In such cases, Landowner shall pay, in
addition to the Park In -Lieu Fees for the Deferred Units, an interest charge in the
amount of four percent (4 %) per annum for any Deferred Units in Phase I (as
Phase I is shown on the approved phasing plan for the Project), and five percent
(5 %) per annum for any Deferred Units in Phase 2 (as Phase 2 is shown on the
approved phasing plan for the Project). The period in which the interest charge(s)
shall apply to any particular Deferred Units shall begin at Landowner's election to
defer payment of Park In -Lieu Fees for those Deferred Unit(s), and shall continue
to accrue on a per annum basis until such time that Landowner actually pays the
Park In -Lieu Fees for those particular unit(s) (the "Deferral Period"). The Park
In -Lieu Fees for any Deferred Units shall be paid on a per -unit basis no later than
upon the issuance of a building permit per individual building(s) in the Project.
For example, if a building permit is sought for a building in Phase I that includes
100 Deferred Units, Park In -Lieu Fees plus the interest charge of four percent
(4 %) per annum that accrued over the Deferral Period for those Deferred Units
must be paid for those 100 Deferred Units before the building permit for that
building can be issued. As another example, if a building permit is sought for a
building in Phase 2 that includes 300 Deferred Units, Park In -Lieu Fees plus the
interest charge of five percent (5 %) per annum that accrued over the Deferral
Period for those Deferred Units must be paid for those 300 Deferred Units before
the building pen-nit for that building can be issued. The fee amount for Park In-
Lieu Fees shall be calculated on a per -unit basis based on the pro -rated gross
acreage of the final map minus any parkland dedication and applicable credits for
recreational improvements approved by the City pursuant to the General Plan and
the Subdivision Code within the area encompassed by the final map, then dividing
the balance by the number of units contained in the area encompassed by that
final map. For example, if a final map encompasses 10 acres of the 25.05 acre
planned community (or 39.92% of the total acreage), the amount of the Park In-
lieu Fees required to be paid on a per -unit would be 39.92% of the 13.62 acre
parkland dedication requirement minus any parkland dedication and any approved
credits for recreational improvements, divided by the number of units contained
within that final map."
3. Full Force and Effect. Except as modified by this First Amendment, the
Agreement shall remain in full force and effect.
4202015,2
2
1251052.2
12 -16
4. Recitals. The Recitals set forth above are true and correct and incorporated
herein by reference.
5. Counterparts. This First Amendment may be signed by the Parties in different
counterparts and the signature pages combined shall create a single document binding on all
Parties.
6. Recordation. The City Clerk of City shall record this First Amendment in the
Office of the County Recorder of the County of Orange within the period required by California
Government Code section 65868.5 and City of Newport Beach Municipal Code section
15.45.100. The date of this First Amendment and the date of recordation of this First
Amendment shall not modify or amend the Effective Date or the Termination Date of the
Agreement.
+102013
[SIGNATURE PAGE FOLLOWS[
5
12.51052 .2
12 -17
LANDOWNERS SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"LANDOWNERS"
UPTOWN NEWPORT JAMBOREE, LLC,
a Delaware limited liability company
By:
Name:
TPG /TSG VENTURE I ACQUISITION, LLC,
a Delaware limited liability company
M
TSG - PARCEL I, LLC,
a Delaware limited liability company
0
Name:
Title:
4201015 r'-
I ?5105 ?S
12 -18
CITY SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"CITY"
CITY OF NEWPORT BEACH
m
ATTEST:
Leilani I. Brown, City Clerk
APPRO TO FORM:
((or)
Aaron C. Hasp, City Attorney
a ^_0'015 0
Edward D. Selich, Mayor
1251052.2
12 -19
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached. and not the truthfulness.
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his /her signature(s) on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his /her signature(s) on the instrument die person, or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
l�
1251052.2
12 -20
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Being a subdivision of Lots I and 2 of Tract No. 7953, in the City of Newport Beach,
County of Orange, State of California, as shown on a map recorded in Book 310, Pages
7 to 11 inclusive, of Miscellaneous Maps, recorded of said County.
a 202015 Q
1251052.2
ffZll
Attachment No. CC 2
March 16, 2015, Planning
Commission Minutes
12 -22
BEACH PLANNING COMMISSION MINUTES
The motion carried as follows.
3/19/15
AYES: Koetting, Kram wte and Myer
NOES: n Tucker
ABSTENT None
T:
T: Brown
ITEM NO. 3 UPTOWN NEWPORT DEVELOPMENT AGREEMENT AMENDMENT (PA2015 -015)
4311 & 4321 Jamboree Road, North side of Jamboree Road, between MacArthur Boulevard
and Birch Street
Uptown Newport requests an amendment of the Uptown Newport Development Agreement (DA) to modify
Section 3.1 to change the payment of public benefit fees to the City from the issuance of building permits to the
issuance of certificates of occupancy; and modify Section 3.2.1 to change the payment of fees in -lieu of parkland
dedication for all units at the issuance of the first building permit for any unit to the issuance of building permits
on a per unit basis.
Chair Tucker noted that this amendment is to change the timing of payments.
Principal Planner Jim Campbell noted there have been discussions between the applicant and staff.
Assistant City Attorney Michael Torres reported that City Council will hear this after the Planning
Commission's recommendation. City Council has not taken formal action or formed an opinion.
Commissioner Lawler recused himself from hearing this item as he has a real property ownership interest
immediately to the south of the project, and departed the Chambers.
Chair Tucker opened the Public Hearing.
Fred Fourcher, 507 Larkspur, Corona del Mar, and co -owner of a building adjacent to the subject property,
expressed concerns that the deal has changed with respect to the City receiving development fees.
Additionally, he expressed concerns that it changed from a balanced development project to low- income. He
noted that the EIR states that there are no traffic impacts with respect to the airport and stated he does not
understand that determination. He added that there was going to be a larger park but that has also changed
and that having a proper -sized park for residents of the project is important.
Adriana Fourcher, 507 Larkspur, Corona del Mar, and co -owner of a building adjacent to the subject
property, opined that it would behoove new City Council Members to visit the subject property. She noted
the size of the project and impacts to the community and expressed concerns with changes from the original
plans.
Jim Mosher spoke regarding possible changes in ownership and wondered about the reason for changes to
the agreement.
Chair Tucker noted there have been many hearings on this project and commented about the owner building
all of the affordable housing at one time. He commented on the sale of the property and the expectation that
there will be more sales of more parcels. He addressed the size of the park and did not see that either the
project or the amount of fees has changed. The only change, as proposed, is the timing of when the fees will
be paid.
Principal Planner Campbell reported there are two, one -acre parks, one in each phase and there will be
some in -lieu fees to be paid. The only change currently before the Planning Commission is the timing of fee
payments.
Vice Chair Kramer commented on an additional interest relative to the fees. The applicant is actually paying
more money to the City than originally determined.
Page 4 of 9
12 -23
NEWPORT BEACH PLANNING COMMISSION MINUTES 3/19/15
Chair Tucker invited the applicant to address the Planning Commission.
John Santry, Executive Vice President for Shopoff Realty Investments, reported that the project always had
an affordable component and that an adjustment was requested to construct them in the first phase. He
added that affordable units cannot be segregated into a single building and that the units will be the same
standard units as the others. He noted that Shopoff Realty Investments is still a partner in the deal and that
it will be a long -term owner and is actively involved. He provided a status update on the construction
process and addressed the for -sale component, the proposed parks, fees, the park in -lieu fee and the public
benefit fee.
In response to Commissioner Hillgren's question, Mr
was made with Meridian, in terms of their request.
certificates of occupancy and not building permits.
Chair Tucker closed the Public Hearing.
Santry noted that there is a precedent in a deal that
He added that their public benefit fees are based on
Motion made by Chair Tucker to adopt the resolution recommending City Council approval of the First
Amendment to Development Agreement No. DA2012 -003.
Secretary Myers commented on the original deal noting that when a deal is approved, it should not change. He
did not agree with payment of public benefit fees upon issuance of certificates of occupancy, but that he would
like the City receiving the benefit of the money sooner, rather than later, as per the agreement. He stated he will
not support the motion.
Commissioner Hillgren recommended that City Council take up this topic and stated that it is out of the Planning
Commission's purview to change the original deal.
Chair Tucker noted that this matter is a recommendation to the City Council.
Assistant City Attorney Torres reported that the Municipal Code allows for amendments to Development
Agreements so that it is not abnormal to have a Development Agreement amended.
Secretary Myers commented on material or design changes to the project as understandable but noted that the
request is to change financial terms that were understood by the applicant, well before the deal was struck.
Chair Tucker stated he does not see the applicant's request as material or detrimental for the City.
Commissioner Hillgren stated he shares Secretary Myers's thoughts in that the Planning Commission does not
have the basis for recommending a change to an economic transaction.
Discussion followed regarding the possibility of setting a higher escalation, cost of funds, City Council's purview
to negotiate business deals, the public benefit component and the Planning Commission's purview.
Chair Tucker's motion was seconded by Vice Chair Kramer.
Assistant City Attorney Torres stated that the motion could be amended asking the City Council to consider
additional fees, but not necessarily imposing that at this time since that is outside of what is being considered at
this time.
The motion failed.
AYES:
Kramer and Tucker
NOES:
Hillgren, Koetting, and Myers
RECUSED:
Lawler
ABSENT:
Brown
Page 5 of 9
12 -24
Attachment No. CC 3
March 19, 2015, Planning
Commission Staff Report
12 -25
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
March 19, 2015 Meeting
Agenda Item 3
SUBJECT: Uptown Newport (PA2015 -015)
4311 & 4321 Jamboree Road
Development Agreement No. DA2012 -003
OWNER: TSG- Parcel 1, LLC
PLANNER: Rosalinh Ung, Associate Planner
(949) 644 -3208, rung @newportbeachca.gov
PROJECT SUMMARY
The applicant requests an amendment to the Uptown Newport Development Agreement
pertaining to the timing of the payment of public benefit fees and fees in -lieu of parkland
dedication.
RECOMMENDATION
1) Conduct a public hearing; and
2) Adopt Resolution No. _ approving First Amendment to Development Agreement
No. DA2012 -003 (Attachment No. PC 1).
12 -26
Uptown Newport Development Agreement — First Amendment
Planning Commission, March 19, 2015
Page 2
VICINITY MAP
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- Uptown Newport
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LOCATION
F GENERAL PLAN71
ZONING
CURRENT USE
MU -H2 (Mixed -Use
PC -58 (Uptown
ON -SITE
Horizontal 2)
Newport Planned
Office /Industrial
Community
PC 15 (Koll Center
NORTH
MU -H2
Newport Planned
Office Developments
Community)
SOUTH
UCI North Campus
UCI North Campus
UCI North Campus
MU -H2 /UCI North
PC15 & UCI North
Office /Commercial
EAST
Campus
Campus
Developments & UCI
North Campus
WEST
MU -H2
PC 15
Office Developments
12 -27
Uptown Newport Development Agreement — First Amendment
Planning Commission, March 19, 2015
Page 3
INTRODUCTION
Project Setting
The subject property is located within the Airport Area and is approximately 25.05 acres
in size. Phase 1 of the Uptown Newport project, on the westerly side of the property, is
under construction. The easterly side of the property is developed with an
office /industrial building that is occupied by TowerJazz Semiconductor. Vehicular
access to the project site is from Jamboree Road and Birch Street.
The site is surrounded to the north, west, and south by commercial /office uses within
the Koll Center Newport office park. Jamboree Road borders the eastern property line
and undeveloped open space within the North Campus of the University of California,
Irvine.
Project Description
The applicant proposes to amend Uptown Newport Development Agreement No.
DA2012 -003 (DA) to modify:
1. Section 3.1 deferring the payment of public benefit fees to the City from the
issuance of building permits to the issuance of certificates of occupancy; and
2. Section 3.2.1 deferring the payment of fees in -lieu of parkland dedication for all
units at the issuance of the first building permit for any unit to the issuance of
building permits on a per unit basis.
Background
On February 26, 2013, City Council approved the DA, along with other entitlement
applications for the Uptown Newport project; consisting of removing existing office and
industrial uses in two primary phases and constructing a mixed -use community
consisting of 1,244 residential units, 11,500 square feet of neighborhood - serving retail
space, and approximately two acres of park space.
The project will be built in two phases. Phase 1 development is underway which
includes demolition of the existing single -story office building at 4311 Jamboree Road
(the "Half Dome Building "), and development of up to 680 residential units, 11,500
square feet of retail, one 1 -acre park, and associated infrastructure including roads,
sidewalks, utilities, and landscaping. Phase 1 is expected to be completed in 2018.
Phase 2 includes the remaining 564 residential units on the easterly portion of the
property. Timing for Phase 2 construction is contingent on the existing lease with the
TowerJazz facility, which expires in March 2017, but could be extended to March 2027
by TowerJazz.
12 -28
Uptown Newport Development Agreement — First Amendment
Planning Commission, March 19, 2015
Page 4
DISCUSSION
Analysis
The DA is an agreement between the applicant and the City that describes the
development rights provided by the City and public benefits to be provided by the
applicant. The agreement vests development rights to the applicant to implement the
Uptown Newport Planned Community. The term of the DA is 15 years, and has two, 5-
year extension options. The DA is available online at:
http :// www. newi)ortbeachca .gov /developmentaareements.
Section 3.1 of the DA requires a public benefit fee in the amount of $32,500 per
residential unit payable prior to the issuance of each building permit. The applicant is
proposing to amend Section 3.1 to change the timing for the payment to be prior to
occupancy on a unit -by -unit basis. Delaying payment by approximately 18 -24 months
will increase the fee based on the escalator provided in the DA.
Section 3.2.1 of the DA requires the applicant to pay fees in -lieu of park land dedication
in addition to the two 1 -acre public parks being developed. These fees are required to
be paid for all units included on a final map prior to the first building permit being issued
for a single unit included on that final map. The applicant is requesting to amend
Section 3.2.1 to change the timing of payment at the issuance of building permits on a
unit -by -unit basis. The park in -lieu fee has no escalator.
The proposed changes to these sections will have no impact on the actual project
approved or the overall terms, conditions or development rights specified in the DA;
other than the timing of subject payments. The per -unit fee is similar to the payment
method required for the Meridian (former Santa Barbara) condominium project in
Newport Center; therefore staff recommends approval of the change. The draft DA
amendment has been reviewed by the City Attorney's Office for code compliance and
accuracy.
Environmental Review
All significant environmental concerns for the proposed project have been addressed in
the previously certified Environmental Impact Report No. ER2012 -001 (SCH No.
2010051094), and the City of Newport Beach intends to use said document for the above
noted project, and further that there are no additional reasonable alternative or mitigation
measures that should be considered in conjunction with said project. Copies of the
previously prepared environmental document are available for public review and
inspection at the Planning Division or at the City of Newport Beach website at
www.newportbeachca.gov/cegadocuments.
12 -29
Uptown Newport Development Agreement — First Amendment
Planning Commission, March 19, 2015
Page 5
Public Notice
Notice of this application was published in the Daily Pilot, mailed to all owners of
property within 300 feet of the boundaries of the site (excluding intervening rights -of-
way and waterways), including the applicant, and posted on the subject property at least
10 days before the scheduled meeting, consistent with the provisions of the Municipal
Code. Additionally, the item appeared on the agenda for this meeting, which was posted
at City Hall and on the City website.
Prepared by: Submitted by:
(ak-c�
o alinh Ung k&'-
As ociate Planner *Brn Wisnes i, ICP, Deputy Director
ATTACHMENTS
PC 1 Draft Resolution
04/0714
12 -30
RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF NEWPORT BEACH RECOMMENDING CITY
COUNCIL APPROVAL OF FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT NO. DA2012 -003 FOR THE
25.05 ACRE PLANNED COMMUNITY KNOWN AS
UPTOWN NEWPORT LOCATED AT 4311 & 4321
JAMBOREE ROAD (PA2015 -015)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS
AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by TSG- Parcel 1, LLC. ( "Uptown Newport ") with respect to
a 25.05 -acre property located at 4311& 4321 Jamboree Road which has already
been approved for the development of up to 1,244 residential dwelling units, 11,500
square feet of retail commercial uses and 2.05 acres of parklands (the 'Project'),
legally described as Parcels 1 through 4 of Parcel Map No. 2013 -108, requesting
an amendment to Development Agreement No. DA2012 -003.
2. The applicant proposes to amend the following sections of Development
Agreement No. DA2012 -003:
a. Section 3.1: To defer the payment of public benefit fees to the City from the
issuance of building permits to the issuance of certificates of occupancy; and
b. Section 3.2.1: To defer the payment of fees in -lieu of parkland dedication for
all units at the issuance of the first building permit for any unit to the
issuance of building permits on a per -unit basis.
3. The subject property is located within the Uptown Newport Planned Community
Zoning District (PC -58) and the General Plan Land Use Element category is Mixed -
Use Horizontal 2 (MU -112).
4. The subject property is not located within the coastal zone.
5. On February 26, 2013, the Newport Beach City Council ( "City ") held first reading of
Ordinance No. 2013 -6 for approval of Development Agreement No. DA2012 -003.
In addition, on March 12, 2013, the City Council held second reading and adopted
Ordinance No. 2013 -6 approving Development Agreement No. DA2012 -003.
Ordinance No. 2013 -6 became effective on or around April 11, 2013.
6. Development Agreement No. DA2012 -003 is dated March 12, 2013, for reference
purposes, and was recorded in the Official Records of Orange County on March 26,
2013, as document number 2013000180939 (the "Development Agreement').
12 -31
Planning Commission Resolution No. ####
Paqe 2 of 5
7. On or around February 14, 2014, Uptown Newport transferred ownership of the
Property and assigned the Development Agreement to TSG- Parcel 1, LLC, a
Delaware limited liability company, Uptown Newport Jamboree, LLC, a Delaware
limited liability company, and TPG/TSG Venture I Acquisition, LLC, a Delaware
limited liability company (collectively, the "Property Owners ").
8. Section 3.1 of the DA requires the payment of a Public Benefit Fee to the City in the
sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00) (subject to an
inflationary escalator at the time of payment) per residential dwelling unit developed
as part of the Project at the time a building permit is issued for each residential
dwelling unit.
9. In addition to constructing and improving two (2) approximately one (1) acre parks,
Property Owners are also required to pay fees in -lieu of parkland dedication to the
City, based on the pro -rated gross acreage of the final map minus any parkland
dedication and applicable credits, for all units included on a final map at the time
that the first building permit is issued for a unit within that final map.
10. On January 27, 2015, the Property Owners submitted an application to amend the
Development Agreement as set forth in the First Amendment to Development
Agreement, attached hereto as "Exhibit A" and incorporated herein by reference
(the "First Amendment').
11. The Uptown Newport Final Environmental Impact Report (SCH No. 2010051094),
which consists of the Comments, Responses to Comments, and Revisions to the
DEIR (Draft Environmental Impact Report), a Statement of Overriding
Considerations, and Mitigation Monitoring and Reporting Program was prepared for
the Project in compliance with the California Environmental Quality Act (CEQA), the
State CEQA Guidelines, and City Council Policy K -3.
12. The Newport Beach City Council, having final approval authority over the
Project, adopted and certified as complete and adequate, the Uptown Newport
Final Environmental Impact Report, and adopted "Findings and Facts in Support
of Findings for the Uptown Newport Project Final Environmental Impact Report'
( "CEQA Findings ") contained within Resolution No. 2013 -21 on February 26,
2013, which are hereby incorporated by reference.
13. A public hearing was held on March 19, 2015 in the Council Chambers at 100 Civic
Center Drive, Newport Beach. A notice of time, place and purpose of the meeting
was given in accordance with the Newport Beach Municipal Code. Evidence,
both written and oral, was presented to, and considered by, the Planning
Commission at this meeting.
07 -22 -2014
12 -32
Planning Commission Resolution No. ####
Paqe 3 of 5
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITYACT DETERMINATION.
All significant environmental concerns for the proposed project have been addressed in
the previously certified Environmental Impact Report No. ER2012 -001 (SCH No.
2010051094), and the City of Newport Beach intends to use said document for the
above -noted project, and further that there are no additional reasonable alternative or
mitigation measures that should be considered in conjunction with said project. Copies
of the previously prepared environmental document are available for public review and
inspection at the Planning Division or at the City of Newport Beach website at
www. newportbeachca .gov /cegadocuments.
SECTION 3. REQUIRED FINDINGS.
In accordance with Chapter 15.45 of the Newport Beach Municipal Code, the following
findings and facts in support of such findings are set forth:
Finding:
A. The First Amendment is consistent with the General Plan and the Uptown
Newport Planned Community Development Plan (PCDP), Municipal Code and
Subdivision Map Act.
Facts in Support of Finding:
1. The Amendment will continue to allow the development of a residential
community, containing a mix of housing types, supporting retail and active
parklands, consistent with the land uses, densities and intensities of the PCDP
which is the zoning document for the Project, the General Plan Land Use
designation of Mixed -Use Horizontal -2 and the Airport Business Area Integrated
Conceptual Development Plan.
2. The changes included in the Amendment are to defer the timing for the payment
of the Public Benefit Fee to be on a per -unit basis upon issuance of certificates of
occupancy, instead of building permits, and to change the timing of the payment of
fees in -lieu of parkland dedication to a per -unit basis at the time a building permit
for an individual Project is issued, rather than issuance of the first building permit for
all units within a final map.
3. These changes do not add any lots, units, building sites or structures to the
Project and does not change the approved design or uses allowed by the Uptown
Newport Planned Community. The fee payments and parkland dedication will
remain a requirement for the project. .
4. The Uptown Newport project approval included detailed findings and facts in
support of these findings that demonstrate the Project's conformity with, among
other things, the General Plan, PCDP, Municipal Code and the Subdivision Map
07 -22 -2014
12 -33
Planning Commission Resolution No. # # ##
Paqe 4 of 5
Act. All of those findings are still applicable to the Project, and are incorporated
by reference into this Resolution.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Statement of Facts, CEQA Determination and Required Findings set forth
above are true and correct and incorporated herein by reference.
2. The Planning Commission of the City of Newport Beach hereby recommends the
City Council approve the First Amendment to Development Agreement No.
DA2012 -003.
PASSED, APPROVED, AND ADOPTED THIS 19th DAY OF MARCH, 2015.
AYES:
NOES:
ABSTAIN
ABSENT:
BY:
Larry Tucker, Chairman
BY:
Jay Myers, Secretary
07 -22 -2014
12 -34
Planning Commission Resolution No. # # ##
Paqe 5 of 5
EXHIBIT "A"
First Amendment to Development Agreement No. DA2012 -003
07 -22 -2014
12 -35
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: Citv Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
TSG- PARCEL 1, LLC, TPG /TSG VENTURE I ACQUISITION, LLC, AND
UPTOWN NEWPORT JAMBOREE, LLC
3/9/2015 v2
CONCERNING UPTOWN NEWPORT PROPERTY
6655 - 100442 \1238699.1
12 -36
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864- 65869.5)
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First
Amendment') is dated for reference purposes as of the _ day of 2015 (the
"Amendment Date "), and is being entered into by and between the CITY OF NEWPORT
BEACH ( "City"), on the one hand, and TSG- Parcel 1, LLC, a Delaware limited liability
company, TPG /TSG Venture I Acquisition, LLC, a Delaware limited liability company and
Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the
"Landowners "), on the other. City and Landowners are sometimes collectively referred to in
this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Landowners are the owners of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as Uptown
Newport, located at 4311 -4321 Jamboree Road (APN # 445- 131 -02, 445- 131 -03), and generally
located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the
"Property"). The Property is more particularly described in the legal description attached hereto
as Exhibit A and incorporated herein by reference.
B. City and Uptown Newport LP, a Delaware limited partnership, entered into that
certain Development Agreement dated March 12, 2013, for reference purposes and recorded in
the Official Records of Orange County on March 26, 2013, as document number
2013000180939 (the "Agreement'). All terms not otherwise defined in this First Amendment
shall have the meanings given them in the Agreement.
C. On or around February 14, 2014, Uptown Newport, LP, a Delaware limited
partnership, transferred ownership of the Property and assigned the Agreement to TSG - Parcel 1,
LLC, a Delaware limited liability company, TPG /TSG Venture I Acquisition, LLC, a Delaware
limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability
company.
D. Under the Agreement, Landowners must pay a Public Benefit Fee to the City in
the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00), as adjusted according to
the Agreement, per residential dwelling unit developed as part of the Project at the time each
residential building permit is issued. The Parties now desire to amend the Agreement as set forth
in this First Amendment to require payment of the Public Benefit Fee at the issuance of
certificates of occupancy per residential dwelling unit rather than the issuance of building
permits.
E. In addition to constructing and improving two (2) approximately one (1) acre
parks, Landowners are also required to pay certain parkland dedication in -lieu fees to the City,
based on the pro -rated gross acreage of the final map minus any parkland dedication and
applicable credits, for all units included on a final map at the time that the first building permit is
issued for a unit on that final map. The Parties now desire to amend the Agreement as set forth
3/9/2015 v2 -1- 6655 - 100442 \1238697.1
12 -37
in this First Amendment to require payment of parkland dedication in -lieu fees, as applicable, on
a per -unit basis at the issuance of a building permit for individual buildings in the Project.
F. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This First
Amendment is consistent with the Development Agreement Ordinance.
G. This First Amendment is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "Mixed -Use
Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown
Newport Planned Community Development Plan.
H. On , 2015, the Planning Commission held a properly noticed
public hearing on this First Amendment and considered the testimony and information submitted
by City staff, Landowners, and members of the public. On , 2015, consistent
with applicable provisions of the Development Agreement Statute and Development Agreement
Ordinance, the Planning Commission adopted Resolution No. , recommending the City
Council approve this First Amendment.
I. In recognition of the significant public benefits that the Agreement, as amended,
provides, the City Council has found that this First Amendment: (i) is consistent with the City of
Newport Beach General Plan as of the date of the Agreement and this First Amendment; (ii) is in
the best interests of the health, safety, and general welfare of City, its residents, and the public;
(iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is
consistent and has been approved consistent with the final Environmental Impact Report (No.
ER2012 -001) (SCH #2010051094) ( "EIR ") that has been certified by the City Council on or
before the Agreement Date, which analyzed the environmental effects of the proposed
development of the Project on the Property, and all of the findings, conditions of approval and
mitigation measures related thereto; and (v) is consistent and has been approved consistent with
provisions of California Government Code section 65867 and City of Newport Beach Municipal
Code chapter 15.45.
J. On , 2015, the City Council held a properly noticed public
hearing on this First Amendment and considered the testimony and information submitted by
City staff, Landowners, and members of the public. On 2015, consistent with
applicable provisions of the Development Agreement Statute and Development Agreement
Ordinance, the City Council held second reading and adopted Ordinance No. , finding the
First Amendment to be consistent with the City of Newport Beach General Plan and approving
this First Amendment.
AGREEMENT
NOW, THEREFORE, City and Landowners agree as follows:
1. Public Benefit Fee. Section 3.1 is hereby amended in its entirety to read as
follows:
3/9/2015 v2
2
6655 - 100442 \1238699.1
12 -38
"As consideration for City's approval and performance of its obligations set forth
in this Agreement, Landowner shall pay to City a fee that shall be in addition to
any other fee or charge to which the Property and the Project would otherwise be
subject (herein, the "Public Benefit Fee ") in the sum of Thirty -Two Thousand
Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as
part of the Project, with the unpaid balance of said Public Benefit Fee increased
beginning on January 1, 2015, by the percentage increase in the CPI Index
between the Effective Date and said January 1st date (the first "Adjustment
Date ") and thereafter with the unpaid balance of said Public Benefit Fee increased
on each subsequent January 1 during the Term of this Agreement (each, an
"Adjustment Date ") by the percentage increase in the CPI Index in the year prior
to the applicable Adjustment Date. The amount of the percentage increase in the
CPI Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for
example, if the Effective Date of this Agreement falls on July 1 and the most
recently available CPI Index figure on the first Adjustment Date (January 1 of the
following year) is the CPI Index for November of the preceding year, the
percentage increase in the CPI Index for that partial year (a 6 -month period) shall
be calculated by comparing the CPI Index for November of the preceding year
with the CPI Index for May of the preceding year (a 6 -month period). In no event,
however, shall application of the CPI Index reduce the amount of the Public
Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any
applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per
unit basis at the time each fesidet4ial bttildifig peffni4 certificate of occupancy is
issued. Notwithstanding any other provision set forth in this Agreement to the
contrary, during the Term of this Agreement City shall not increase the Public
Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1.
Landowner acknowledges by its approval and execution of this Agreement that it
is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the
Public Benefit Fee is an essential term of this Agreement and is not severable
from City's obligations and Landowner's vesting rights to be acquired hereunder,
and that Landowner expressly waives any constitutional, statutory, or common
law right it might have in the absence of this Agreement to protest or challenge
the payment of such fee on any ground whatsoever, including without limitation
pursuant to the Fifth and Fourteenth Amendments to the United States
Constitution, California Constitution Article I Section 19, the Mitigation Fee Act
(California Government Code Section 66000 et seq.), or otherwise. In addition to
any other remedy set forth in this Agreement for Landowner's default, if
Landowner shall fail to timely pay any portion of the Public Benefit Fee when due
City shall have the right to withhold issuance of any further building permits,
occupancy permits, or other development or building permits for the Project."
2. Park Fees. Section 3.2.1, subdivision (iv), is hereby amended in its entirety to
read as follows:
3/9/2015 v2
"In -lieu of parkland dedication fees shall be paid to the City prior to the issuance
of building permits. Payment shall be made 49r All units ineluded 814 aRy f4fial
map(s) a+ the time that the fifst issued fef any single unit
3
6655 - 100442 \1238699.1
12 -39
ineluded on ° 4nal mapf' -` on a per unit basis at the issuance of a building permit
per individual building(s) in the Project. For instance, if a building permit is
sought for a building that will contain 100 units, park in -lieu fees must be paid for
those 100 units before that building permit can be issued. The fee amount shall be
based on the pro -rated gross acreage of the final map minus any parkland
dedication and applicable credits for recreational improvements approved by the
City pursuant to the General Plan and the Subdivision Code within the area
encompassed by the final map. For example, if a final map encompasses 10 acres
of the 25.05 acre planned community (or 39.92% of the total acreage), the fee
required prior to final map recordation would be 39.92% of the 13.62 acre
parkland dedication requirement minus any parkland dedication and any approved
credits for recreational improvements."
3. Full Force and Effect. Except as modified by this First Amendment, the
Agreement shall remain in full force and effect.
4. Recitals. The Recitals set forth above are true and correct and incorporated
herein by reference.
5. Counterparts. This First Amendment may be signed by the parties in different
counterparts and the signature pages combined shall create a single document binding on all
parties.
6. Recordation. The City Clerk of City shall record this First Amendment in the
Office of the County Recorder of the County of Orange within the period required by California
Government Code section 65868.5 and City of Newport Beach Municipal Code section
15.45.090. The date of this First Amendment and the date of recordation of this First
Amendment shall not modify or amend the Effective Date or the Termination Date of the
Agreement.
3/9/2015 v2
[SIGNATURE PAGE FOLLOWS]
M
6655 - 100442 \1238699.1
12 -40
LANDOWNERS SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"LANDOWNERS"
UPTOWN NEWPORT JAMBOREE, LLC,
a Delaware limited liability company
IRZ
Name:
Title:
TPG /TSG VENTURE I ACQUISITION, LLC,
a Delaware limited liability company
IC
Title:
TSG - PARCEL 1, LLC,
a Delaware limited liability company
IC
3/9/2015 v2
6655 - 100442 \1238699.1
12 -41
CITY SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"CITY"
CITY OF NEWPORT BEACH
IC
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney
3/9/2015 v2
Edward Selich, Mayor
6655 - 100442 \1238699.1
12 -42
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his/her signature(s) on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his/her signature(s) on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
3/9/2015 v2
-7-
6655 - 100442 \1238699.1
12 -43
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Parcels 1 through 4 of Parcel Map No. 2013 -108, in the City of Newport Beach, County
of Orange, State of California.
3/9/2015 v2
6655 - 100442 \1238699.1
12 -44
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: Citv Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
TSG- PARCEL 1, LLC, TPG /TSG VENTURE I ACQUISITION, LLC, AND
UPTOWN NEWPORT JAMBOREE, LLC
3/20/2015 Q
CONCERNING UPTOWN NEWPORT PROPERTY
6655 - 100442 \1238699.1
12 -45
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864- 65869.5)
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First
Amendment') is dated for reference purposes as of the _ day of 2015 (the
"Amendment Date "), and is being entered into by and between the CITY OF NEWPORT
BEACH ( "City"), on the one hand, and TSG- Parcel 1, LLC, a Delaware limited liability
company, TPG /TSG Venture I Acquisition, LLC, a Delaware limited liability company and
Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the
"Landowners "), on the other. City and Landowners are sometimes collectively referred to in
this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Landowners are the owners of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as Uptown
Newport, located at 4311 -4321 Jamboree Road (APN # 445- 131 -02, 445- 131 -03), and generally
located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the
"Property"). The Property is more particularly described in the legal description attached hereto
as Exhibit A and incorporated herein by reference.
B. City and Uptown Newport LP, a Delaware limited partnership, entered into that
certain Development Agreement dated March 12, 2013, for reference purposes and recorded in
the Official Records of Orange County on March 26, 2013, as document number
2013000180939 (the "Agreement'). All terms not otherwise defined in this First Amendment
shall have the meanings given them in the Agreement.
C. On or around February 14, 2014, Uptown Newport, LP, a Delaware limited
partnership, transferred ownership of the Property and assigned the Agreement to TSG - Parcel 1,
LLC, a Delaware limited liability company, TPG /TSG Venture I Acquisition, LLC, a Delaware
limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability
company.
D. Under the Agreement, Landowners must pay a Public Benefit Fee to the City in
the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00), as adjusted according to
the Agreement, per residential dwelling unit developed as part of the Project at the time each
residential building permit is issued. The Parties now desire to amend the Agreement as set forth
in this First Amendment to require payment of the Public Benefit Fee at the issuance of
certificates of occupancy per residential dwelling unit rather than the issuance of building
permits.
E. In addition to constructing and improving two (2) approximately one (1) acre
parks, Landowners are also required to pay certain parkland dedication in -lieu fees to the City,
based on the pro -rated gross acreage of the final map minus any parkland dedication and
applicable credits, for all units included on a final map at the time that the first building permit is
issued for a unit on that final map. The Parties now desire to amend the Agreement as set forth
3/20/2015 Q -1- 6655 - 100442 \1238697.1
12 -46
in this First Amendment to require payment of parkland dedication in -lieu fees, as applicable, on
a per -unit basis at the issuance of a building permit for individual buildings in the Project.
F. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This First
Amendment is consistent with the Development Agreement Ordinance.
G. This First Amendment is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "Mixed -Use
Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown
Newport Planned Community Development Plan.
H. On , 2015, the Planning Commission held a properly noticed
public hearing on this First Amendment and considered the testimony and information submitted
by City staff, Landowners, and members of the public. On , 2015, consistent
with applicable provisions of the Development Agreement Statute and Development Agreement
Ordinance, the Planning Commission adopted Resolution No. , recommending the City
Council approve this First Amendment.
I. In recognition of the significant public benefits that the Agreement, as amended,
provides, the City Council has found that this First Amendment: (i) is consistent with the City of
Newport Beach General Plan as of the date of the Agreement and this First Amendment; (ii) is in
the best interests of the health, safety, and general welfare of City, its residents, and the public;
(iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is
consistent and has been approved consistent with the final Environmental Impact Report (No.
ER2012 -001) (SCH #2010051094) ( "EIR ") that has been certified by the City Council on or
before the Agreement Date, which analyzed the environmental effects of the proposed
development of the Project on the Property, and all of the findings, conditions of approval and
mitigation measures related thereto; and (v) is consistent and has been approved consistent with
provisions of California Government Code section 65867 and City of Newport Beach Municipal
Code chapter 15.45.
J. On , 2015, the City Council held a properly noticed public
hearing on this First Amendment and considered the testimony and information submitted by
City staff, Landowners, and members of the public. On 2015, consistent with
applicable provisions of the Development Agreement Statute and Development Agreement
Ordinance, the City Council held second reading and adopted Ordinance No. , fmding the
First Amendment to be consistent with the City of Newport Beach General Plan and approving
this First Amendment.
AGREEMENT
NOW, THEREFORE, City and Landowners agree as follows:
1. Public Benefit Fee. Section 3.1 is hereby amended in its entirety to read as
follows:
3/20/2015 Q
2
6655 - 100442 \1238699.1
12 -47
"As consideration for City's approval and performance of its obligations set forth
in this Agreement, Landowner shall pay to City a fee that shall be in addition to
any other fee or charge to which the Property and the Project would otherwise be
subject (herein, the "Public Benefit Fee ") in the sum of Thirty -Two Thousand
Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as
part of the Project, with the unpaid balance of said Public Benefit Fee increased
beginning on January 1, 2015, by the percentage increase in the CPI Index
between the Effective Date and said January 1st date (the fast "Adjustment
Date ") and thereafter with the unpaid balance of said Public Benefit Fee increased
on each subsequent January 1 during the Term of this Agreement (each, an
"Adjustment Date ") by the percentage increase in the CPI Index in the year prior
to the applicable Adjustment Date. The amount of the percentage increase in the
CPI Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for
example, if the Effective Date of this Agreement falls on July 1 and the most
recently available CPI Index figure on the first Adjustment Date (January 1 of the
following year) is the CPI Index for November of the preceding year, the
percentage increase in the CPI Index for that partial year (a 6 -month period) shall
be calculated by comparing the CPI Index for November of the preceding year
with the CPI Index for May of the preceding year (a 6 -month period). In no event,
however, shall application of the CPI Index reduce the amount of the Public
Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any
applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per
unit basis at the time each certificate of occupancy is
issued. Notwithstanding any other provision set forth in this Agreement to the
contrary, during the Term of this Agreement City shall not increase the Public
Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1.
Landowner acknowledges by its approval and execution of this Agreement that it
is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the
Public Benefit Fee is an essential term of this Agreement and is not severable
from City's obligations and Landowner's vesting rights to be acquired hereunder,
and that Landowner expressly waives any constitutional, statutory, or common
law right it might have in the absence of this Agreement to protest or challenge
the payment of such fee on any ground whatsoever, including without limitation
pursuant to the Fifth and Fourteenth Amendments to the United States
Constitution, California Constitution Article I Section 19, the Mitigation Fee Act
(California Government Code Section 66000 et seq.), or otherwise. In addition to
any other remedy set forth in this Agreement for Landowner's default, if
Landowner shall fail to timely pay any portion of the Public Benefit Fee when due
City shall have the right to withhold issuance of any further building permits,
occupancy permits, or other development or building permits for the Project."
2. Park Fees. Section 3.2.1, subdivision (iv), is hereby amended in its entirety to
read as follows:
"In -lieu of parkland dedication fees shall be paid to the City prior to the issuance
of building permits. Payment shall be made 49r All units ineluded 814 aRy fifial
map(s) a+ the time that the fifst isstied fef any single tmit
3/20/2015 Q 3 6655 - 100442 \1238697. 1
12 -48
ineluded on ° 4nal mapf' -` on a per unit basis at the issuance of a building permit
per individual building(s) in the Project. For instance, if a building permit is
sought for a building that will contain 100 units, park in -lieu fees must be paid for
those 100 units before that building permit can be issued. The fee amount shall be
based on the pro -rated gross acreage of the final map minus any parkland
dedication and applicable credits for recreational improvements approved by the
City pursuant to the General Plan and the Subdivision Code within the area
encompassed by the final map. For example, if a final map encompasses 10 acres
of the 25.05 acre planned community (or 39.92% of the total acreage), the fee
required prior to final map recordation would be 39.92% of the 13.62 acre
parkland dedication requirement minus any parkland dedication and any approved
credits for recreational improvements."
3. Full Force and Effect. Except as modified by this First Amendment, the
Agreement shall remain in full force and effect.
4. Recitals. The Recitals set forth above are true and correct and incorporated
herein by reference.
5. Counterparts. This First Amendment may be signed by the parties in different
counterparts and the signature pages combined shall create a single document binding on all
parties.
6. Recordation. The City Clerk of City shall record this First Amendment in the
Office of the County Recorder of the County of Orange within the period required by California
Government Code section 65868.5 and City of Newport Beach Municipal Code section
15.45.090. The date of this First Amendment and the date of recordation of this First
Amendment shall not modify or amend the Effective Date or the Termination Date of the
Agreement.
3/20/2015 Q
[SIGNATURE PAGE FOLLOWS]
M
6655 - 100442 \1238699.1
12 -49
LANDOWNERS SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"LANDOWNERS"
UPTOWN NEWPORT JAMBOREE, LLC,
a Delaware limited liability company
IRZ
Name:
Title:
TPG /TSG VENTURE I ACQUISITION, LLC,
a Delaware limited liability company
IC
Title:
TSG - PARCEL 1, LLC,
a Delaware limited liability company
IC
3/20/2015 Q
6655 - 100442 \1238699.1
12 -50
CITY SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"CITY"
CITY OF NEWPORT BEACH
IC
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney
3/20/2015 Q
Edward Selich, Mayor
6655 - 100442 \1238699.1
12 -51
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his/her signature(s) on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his/her signature(s) on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
3/20/2015 Q
-7-
6655 - 100442 \1238699.1
12 -52
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Parcels 1 through 4 of Parcel Map No. 2013 -108, in the City of Newport Beach, County
of Orange, State of California.
3/20/2015. v2
6655- 100442 \1238697.1
12 -53
Attachment No. CC 4
Vicinity Map
12 -54
VICINITY MAP
/ d?
/
COW,
p' 4 'N
�Qyo OA
/ y4
/ ' 0
PC1
PC�15
PIO
x
i•I �n �OQ
0 1
�S
j
9HSj Qo-y q�St
�H
UPrown Newport
12 -55
Attachment No. CC 5
Recorded DA & Assignments
12 -56
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beaclr -
3300 Newport Boulevard
Newport Beach; CA 92663 -3884
Attn: City Clerk
C,
I'�
Recorded in Official Records, Orange County
Renee Ramirez, Assistant Clerk- Recorder
11191111111111111111111111111111 111111111111111111111111111 NO FEE
+ $ R 0 0 05 7 1 2 3 2 0 S*
201300018093912:38 pm 03126/13
47 422 Al2 35
0.00 0.00 0.00 0.00 102.00 0.00 0.00 0.00
(Space Above This Line Is for Recorder's Use Only)
II
This Agreement is recorded at the request and for (_r
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
CONCERNING UPTOWN NEWPORT PROPERTY
2115 2013 Execution Copy
12 -57
TABLE OF CONTENTS
Page
Definitions.......................................................................................... ............................... 3
2. General Provisions .............................................................................. ..............................7
2.1 Plan Consistency, Zoning Implementation ............................. ..............................7
2.2 Binding Effect of Agreement .................................................. ..............................7
2.3 Landowner Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement .. ..............................7
2.4 Term ........................................................................................ ..............................7
3. Public Benefits .................................................................................... ..............................8
3.1 Public Benefit Fee ................................................................... ..............................8
3.2 Other Public Benefits ............................................................... ..............................9
4. Development of Project ..................................................................... .............................11
4.1 Applicable Regulations; Landowner's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals............................................................................. ............................... 11
4.2 No Conflicting Enactments .................................................... .............................12
4.3 Reservations of Authority ...................................................... .............................13
4.4 Tentative Subdivision Maps .................................................. .............................15
5. Amendment or Cancellation of Agreement..
6. Enforcement ................. ...............................
............ .............................15
.............. .............................15
7. Annual Review of Landowner's Compliance With Agreement ........ .............................16
7.1
General ................................................................................... .............................16
7.2
Landowner Obligation to Demonstrate Good Faith Compliance .......................16
7.3
Procedure ............................................................................... .............................16
7.4
Annual Review a Non - Exclusive Means for Determining and Requiring
Cure of Landowner's Default ................................................ .............................16
8. Events of Default ............................................................................... .............................16
8.1
General Provisions ................................................................. .............................16
8.2
Default by Landowner ........................................................... .............................17
8.3
City's Option to Terminate Agreement ................................. .............................17
8.4
Default by City ....................................................................... .............................17
8.5
Waiver .................................................................................... .............................18
8.6
Specific Perfonnance Remedy ............................................... .............................18
8.7
Monetary Damages .............................................................. ...............................
18
8.8
Additional City Remedy for Landowner's Default ............... .............................18
8.9
No Personal Liability of City Officials„ Employees, or Agents ........................18
8.10
Recovery of Legal Expenses by Prevailing Party in Any Action .......................19
9. Force Majcure ................. ...............................
............ .............................19
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Page
10. Indemnity Obligations of Landowner ................................................ .............................19
10.1 Indemnity Arising from Acts or Ommissions of Landowner .............................19
10.2 Third Party Litigation ............................................................ .............................20
10.3 Environmental Indemnity ...................................................... .............................20
11. Assignment ...... ...............................
20
12. Mortgagee Rights ............................................................................... .............................21
12.1
Encumbrances on Property .................................................... .............................21
12.2
Mortgagee Protection ............................................................. .............................22
12.3
Mortgagee Not Obligated ...................................................... .............................22
12.4
Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................22
13. Miscellaneous
Terms ......................................................................... .............................23
13.1
Notices ................................................................................... .............................23
13.2
Project as Private Undertaking ............................................... .............................23
13.3
Cooperation ............................................................................ .............................24
13.4
Estoppel Certificates .............................................................. .............................24
13.5
Rules of Construction ............................................................ .............................24
13.6
Time Is of the Essence ........................................................... .............................24
13.7
Waiver .................................................................................... .............................24
13.8
Counterparts ........................................................................... .............................24
13.9
Entire Agreement ................................................................... .............................25
13.10
Severability ............................................................................ .............................25
13.11
Construction ........................................................................... .............................25
13.12
Successors and Assigns; Constructive Notice and Acceptance ..........................25
13.13
No Third Party Beneficiaries ................................................. .............................26
13.14
Applicable Law and Venue .................................................... .............................26
13.15
Section Headings ................................................................... .............................26
13.16
Incorporation of Recitals and Exhibits .................................. .............................26
13.17
Recordation ............................................................................ .............................26
2 14 2013 Q
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FRI& ]
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864- 65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement ") is dated for reference
purposes as of the ��ay of 2012 (the "Agreement Date "), and is being entered into by and
between the CITY OF NEWPORT BEACH ( "City "), and UPTOWN NEWPORT LP, a
Delaware limited partnership ( "Landowner "). City and Landowner are sometimes collectively
referred to in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Landowner is the owner of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as Uptown
Newport, located at 4311 -4321 Jamboree Road (APN # 445- 131 -02, 445- 131 -03), and generally
located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the
" Property"). The Property is more particularly described in the legal description attached hereto
as Exhibit A and is depicted on the site map attached hereto as Exhibit B.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864- 65869.5 (the "Development Agreement Statute ") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This Agreement is
consistent with the Development Agreement Ordinance.
D. As detailed in Section 4 of this Agreement and the Development Plans (as defined
herein), Landowner has agreed to provide the following significant public benefits as
consideration for this Agreement:
m Payment of a public benefit fee in the sum of thirty -two thousand five hundred dollars
($32,500.00) per residential dwelling unit developed as part of the Project (as defined
herein), including an annual adjustment to the public benefit fee based on the
Consumer Price Index ( "CPI ").
o Park land dedication and improvements consistent with applicable State law and
Municipal Code provisions, including the dedication and improvement of over two
(2) acres of on -site public parkland.
C Perpetual private maintenance of over two (2) acres of on -site public parks.
2:142013 Q
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• Improvement of private open space, including paseos and urban plazas that will be
accessible to the public and connect the Project and surrounding properties to
promote connectivity and pedestrian travel in the Airport Area.
• Remediation of soil and groundwater contamination on the Property that has existed
on -site since the mid- 1980's.
• Reduction in greenhouse gases generated within the Airport Area.
• Reduction in electric, gas, water and sewer utility usage through the redevelopment of
an existing industrial manufacturing site into a residential mixed use project.
• Reduction of urban runoff volumes and implementation of stormwater runoff water
quality facilities that will improve the quality of stormwater runoff entering the
Newport Back Bay.
• Construction of affordable housing units within the Project that will provide
affordable housing opportunities to Newport Beach residents.
E. This Agreement is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "Mixed -Use
Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown
Newport Planned Community Development Plan that is being adopted and approved by the City
Council concurrently with its approval of this Agreement in order to establish appropriate zoning
to regulate land use and development of the Property consistent with the General Plan.
F. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, City's police power; (iv) is consistent and has been approved
consistent with the Final Environmental Impact Report for the City of Newport Beach General
Plan 2006 Update (State Clearinghouse No. 2006011119) and the final Environmental Impact
Report (No. ER2012 -001) (SCH #2010051094) ( "EIR ") that has been certified or is being
certified for approval by the City Council on or before the Agreement Date, both of which
analyze the environmental effects of the proposed development of the Project on the Property,
and all of the findings, conditions of approval and mitigation measures related thereto; and (v) is
consistent and has been approved consistent with provisions of California Government Code
section 65867 and City of Newport Beach Municipal Code chapter 15.45.
G. On February 7, 2013, City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recommended
to the City Council that the City Council approve this Agreement.
H. On February 26, 2013, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Landowner, and members of the public. On
3 12 13 2013, consistent with applicable provisions of the Development Agreement
M420U v3 2
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Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No.
a -6 (the "Adopting Ordinance "), finding this Agreement to be consistent with the City of
Newport Beach General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Landowner agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No.900-6approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended
from time to time.
"Agreement Date" shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CEO A" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000 - 21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 et seq.), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California charter city, and any successor
or assignee of the rights and obligations of the City of Newport Beach hereunder.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
2,943013 0 3
ifZ:3a
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man -made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure;
improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code sections
65864- 65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date, as the same may be
amended from time to time consistent with this Agreement. Such land use entitlements,
approvals and permits include, without limitation, the following: (1) the Development rights as
provided under this Agreement; (2) Uptown Newport Planned Community Development Plan
Adoption No. PC2012 -001 which consists of Land Uses; Development Standards and Procedures
(dated o1/ tq- / 13 ), Design Guidelines (dated _� 114 I13 ),
and Phasing plan tdated 021)411.3 ); (3) Planned Commtrnity'Development Plan
Amendment No. PD2011 -003; '(4) Tentative Tract Map No. NT2012 -002; (5) Affordable
Housing Implementation Plan No. AH2O12 -001; (6) Traffic Study No. TS2012 -005; (7) Site
Plan 9 -19- 2012); (11) Environmental Impact Report No. ER2012 -001 (SCH #2010051094); and
(12) all conditions of approval and all mitigation measures approved for the Project on or before
the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that impairs or restricts Landowner's rights set
forth in this Agreement, unless such amendment or modification is expressly authorized by this
Agreement or is agreed to by Landowner in writing: the General Plan; the Development Plan;
and, to the extent not expressly superseded by the Development Plan or this Agreement, all other
land use and subdivision regulations governing the permitted uses, density and intensity of use,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters that may apply to
Development of the Project on the Property during the Term of this Agreement that are set forth
in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code
(subdivisions and inclusionary housing), and Title 20 of the Municipal Code (planning, zoning
and density bonus), but specifically excluding all other sections of the Municipal Code, including
2;14.2013 �3 4
FPZ.Ye1
without limitation Title 5 of the Municipal Code (business licenses and regulations).
Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not
include any City ordinance, resolution, code, rule, regulation or official policy governing any of
the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and
assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment
permits and the conveyance of rights and interests which provide for the use of or the entry upon
public property; or (v) the exercise of the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved on or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations, the date on which the referendum is
certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and/or the applicable Development Regulations, whether such finality is achieved by a final non-
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the
Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be
executed and recorded against the Property memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et sec., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sec ., as amended
( "RCRA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et se q., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sea., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec ., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et se q., as amended; and California Health and Safety
Code Section 25100, et sue.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006 -76, excluding any amendment after the Effective Date that
impairs or restricts Landowner's rights set forth in this Agreement, unless such amendment is
expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically
zaa 1013 va 5
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agreed to by Landowner. The Land Use Plan of the Land Use Element of the General Plan was
approved by City voters in a general election on November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Landowner" shall mean Uptown Newport LP, a Delaware limited partnership, and any
successor or assignee to all or any portion of the right, title, and interest of Uptown Newport LP
in and to ownership of all or a portion of the Property.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Landowner or both, as determined by the
context.
" Project" shall mean all on -site and off -site improvements that Landowner is authorized
and/or required to construct with respect to each parcel of the Property, as provided in this
Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"Propert y" is described in Exhibit A and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Landowner is required to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations
and this Agreement, with the understanding that except as expressly set forth herein City shall
not have the right subsequent to the Effective Date and during the Term of this Agreement to
adopt or impose requirements for any such Subsequent Development Approvals that do not exist
as of the Agreement Date.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
z 14,2013 �3
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2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Landowner Representations and Warranties Regarding Ownership of the Property
and Related Matters Pertaining to this Agreement.
Landowner and each person executing this Agreement on behalf of Landowner hereby
represents and warrants to City as follows: (i) that Landowner is the owner of the fee simple title
to the Property; (ii) if Landowner or any co -owner comprising Landowner is a legal entity that
such entity is duly formed and existing and is authorized to do business in the State of California;
(iii) if Landowner or any co -owner comprising Landowner is a natural person that such natural
person has the legal right and capacity to execute this Agreement; (iv) that all actions required to
be taken by all persons and entities comprising Landowner to enter into this Agreement have
been taken and that Landowner has the legal authority to enter into this Agreement; (v) that
Landowner's entering into and performing its obligations set forth in this Agreement will not
result in a violation of any obligation, contractual or otherwise, that Landowner or any person or
entity comprising Landowner has to any third party; (vi) that neither Landowner nor any co-
owner comprising Landowner is the subject of any voluntary or involuntary bankruptcy or
insolvency petition, and (vii) that Landowner has no actual knowledge of any pending or
threatened claims of any person or entity affecting the validity of any of the representations and
warranties set forth in clauses (i) -(vi), inclusive, or affecting Landowner's authority or ability to
enter into or perform any of its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Term ") shall commence on the Effective Date and shall
terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if either
Party reasonably determines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project has/have been disapproved by City's voters at a referendum
election or (ii) a final non - appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development
Regulations for the Project approved on or before the Agreement Date such that this Agreement
and/or any of such Development Regulations is /are invalid and unenforceable in whole or in
such a substantial part that the judgment substantially impairs such Party's rights or substantially
increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute
discretion, shall have the right to terrninate this Agreement upon delivery of a written notice of
2.14.2013 m 7
4X IM
termination to the other Party, in which event neither Party shall have any further rights or
obligations hereunder except that Landowner's indemnity obligations set forth in Article 10 shall
remain in full force and effect and shall be enforceable, and the Development Regulations
applicable to the Project and the Property only (but not those general Development Regulations
applicable to other properties in the City) shall similarly be null and void at such time.
The Termination Date shall be the earliest of the following dates: (i) the fifteenth (15th)
anniversary of the Effective Date, as said date may be extended in accordance with Section 5.1
of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance
with Articles 5, 7, and /or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of
the Development Agreement Statute; (iii) as to any separate legal lot within the Property (but not
as to the balance of the Property or the portion thereof that remains subject to this Agreement at
such time), upon the "Lot Termination Date" (defined below); or (iv) completion of the Project
in accordance with the terms of this Agreement, including Owner's complete satisfaction,
performance, and payment, as applicable, of all Development Exactions, the issuance of all
required final occupancy permits, and acceptance by City or applicable public agency(ies) or
private entity(ies) of all required offers of dedication.
As used herein, the term "Lot Termination Date" for any separate legal lot within the
Property means the date on which all of the following conditions have been satisfied with respect
to said lot: (i) the lot has been finally subdivided and sold or leased (for a period longer than one
year), individually or in a "bulk" of four- or fewer lots, to a member of the public or other
ultimate user; (ii) a final Certificate of Occupancy or "Release of Utilities" has been issued for
the building or buildings approved for construction on said lot; (iii) the duties under this
Agreement and the Development Plan have been fully satisfied with respect to said lot; (iv) the
Master Site Improvements as described in and required by the Development Plan, and approved
as part of the Master Site Development Plan review, have been completed for said lot.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other Landowner obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
3. Public Benefits
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge
to which the Property and the Project would otherwise be subject (herein, the "Public Benefit
Fee ") in the sum of Thirty -Two Thousand Five Hundred Dollars (532,500.00) per residential
dwelling unit Developed as part of the Project, with the unpaid balance of said Public Benefit
Fee increased beginning on January 1, 2015, by the percentage increase in the CPI Index
between the Effective Date and said January I" date (the first "Adjustment Date ") and thereafter
with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1
during the Tenn of this Agreement (each, an "Adjustment Date ") by the percentage increase in
the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage
increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated
2042013 w3 8
12 -67
based on the then most recently available CPI Index figures such that, for example, if the
Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure
on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of
the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month
period) shall be calculated by comparing the CPI Index for November of the preceding year with
the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall
application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion
thereof) below the amount in effect prior to any applicable Adjustment Date. Landowner shall
pay the Public Benefit Fee on a per unit basis at the time each residential building permit is
issued. Notwithstanding any other provision set forth in this Agreement to the contrary, during
the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the
CPI Index as stated in this Section 3.1. Landowner acknowledges by its approval and execution
of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation
to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from
City's obligations and Landowner's vesting rights to be acquired hereunder, and that Landowner
expressly waives any constitutional, statutory, or common law right it might have in the absence
of this Agreement to protest or challenge the payment of such fee on any ground whatsoever,
including without limitation pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act
(California Government Code Section 66000 et seg.), or otherwise. In addition to any other
remedy set forth in this Agreement for Landowner's default, if Landowner shall fail to timely
pay any portion of the Public Benefit Fee when due City shall have the right to witldrold issuance
of any further building permits, occupancy permits, or other development or building permits for
the Project.
3.2 Other Public Benefits.
In addition to the Public Benefit Fee, the direct and indirect benefits City expects to
receive pursuant to this Development Agreement are as follows:
3.2.1 Park Land Dedication and Improvements. Based upon the number of residential
dwelling units approved in the Development Plan, City calculated that Landowner's park land
dedication for the Project pursuant to the City General Plan, Government Code Section 66477
( "Quimby Act") and Municipal Code Chapter 19.52 is 13.62 acres. City acknowledges that
Landowner's performance of its obligations as set forth in this section satisfies all of
Landowner's General Plan, Quimby Act and Municipal Code Chapter 19.52 obligations
governing park land dedication and fees. City acknowledges that Landowner shall be eligible to
receive credit against the payment of fees or dedication of land consistent with the General Plan,
Quimby Act and Municipal Code Chapter 19.52. As of the Effective Date, the established fair
market value per acre figure used in assessing in -lieu of park dedication fees equals Two Million
Five Hundred Thousand Dollars (S2,500,000). Landowner fees and credit shall be based on the
established Two Million Five Hundred Thousand Dollars ($2,500,000) per acre. Landowner
shall undertake the following:
i. On -Site Parks. Landowner shall construct and improve two
(2), one (1) acre parks within the Property pursuant to the Development Plan. Landowner shall
offer the two (2) on -site parks to the City for dedication in fee simple, and City shall accept
Landowner's offer for dedication provided that the parks have been completed in accordance
2114.2013 0 9
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with the requirements of the Development Plan. The parks may be offered for dedication and
accepted by the City either together as one action or separately at different times. The two (2)
parks shall be privately maintained (by Landowner or the Master Association as defined in the
Development Plan) in perpetuity and in accordance with the Development Plan as set forth in a
separate written maintenance and license agreement approved as to form by the City Attorney.
Such agreement shall grant Landowner and /or the private Master Association access to the parks
and the park facilities, including drainage and stormwater runoff facilities, for operation and
maintenance. The maintenance and license agreement shall also provide for Landowner or
Master Association's responsibility for maintaining stormwater and water quality improvements
in perpetuity and in accordance with the Development Plan. Landowner shall be eligible to
receive credit against the payment of fees or dedication of land for park construction and
dedication. The dollar amount of the credit shall be based on land value and final park
construction and improvement costs, (excluding land value), which shall be review and approved
by the Community Development Director and shall include, but not be limited to, the cost to
design, engineer, construct, install, supervise and inspect the park and improvements, including
any permit and inspection fees to be paid to City with respect thereto and the cost of obtaining
and maintaining in effect security instruments for the work. The credit shall be determined by
the Community Development Director at the time the City accepts the offer of dedication.
ii. Public Recreational Open Space Areas. Landowner shall
construct and improve public recreational open space areas pursuant to the Development Plan.
Public recreational open space areas shall be open to the public but privately owned and
maintained by Landowner or a private master association in perpetuity and in accordance with
the Development Plan. Pursuant to General Plan land use policy 6.15.16, Landowner may be
eligible to receive up to thirty percent (30 %) credit against the payment of fees or dedication of
land for such open space recreational areas. The dollar amount of the credit shall be based on
land value established by multiplying the eligible acreage by Two Million Five Hundred
Thousand Dollars ($2,500,000). The percentage credit and the eligible acreage shall be
determined by the Community Development Director at the time final improvement plans are
approved. The acreage of open space that is accessible to the public during daylight hours,
visible from public rights -of -way and of sufficient size to accommodate recreational use by the
public may be eligible for credit. Public open space recreational area construction costs shall not
be considered for credit.
iii. Private Recreational Amenities. Landowner shall construct
and improve private recreational amenities and open space pursuant to the Development Plan.
Private recreational amenities shall be privately owned and maintained in perpetuity by
Landowner or a private master association. For private recreational amenities, Landowner may
be eligible to receive up to twenty percent (20 %) credit against the payment of fees or dedication
of land. The dollar amount of the credit shall be based on land value established by multiplying
the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). The
percentage credit and the eligible acreage shall be determined by the Community Development
Director at the time building plans are submitted. Credited private recreational facilities include
active recreation facilities such as playfields, turfed play areas, tot lots, recreation buildings,
swimming pools and playing courts, and similar facilities. Privately maintained bicycle or
hiking trails that connect to trails outside the Property and which are open to the public shall be
eligible. Passive open space, such as setback areas and passive greenbelts shall not be eligible.
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iv. In -lieu of parkland dedication fees shall be paid to the City
prior to the issuance of building permits. Payment shall be made for all units included on any
final map(s) at the time that the first building permit is issued for any single unit included on a
final map(s). The fee amount shall be based on the pro -rated gross acreage of the final map
minus any parkland dedication and applicable credits for recreational improvements approved by
the City pursuant to the General Plan and the Subdivision Code within the area encompassed by
the final map. For example, if a final map encompasses 10 acres of the 25.05 acre planned
community (or 39.92% of the total acreage), the fee required prior to final map recordation
would be 39.92% of the 13.62 acre parkland dedication requirement minus any parkland
dedication and any approved credits for recreational improvements.
3.2.2 AHIP. The Parties have agreed to an Affordable Housing Implementation Plan
No. AH2O12- 001(the "AHIP ") to identify the manner in which Project is to satisfy the City's
affordable housing requirements, pursuant to Municipal Code Chapter 19.53 (Inclusionary
Housing) and Chapter 20.32 (Density Bonus). Landowner agrees to implement the AHIP.
3.2.3 Undererounding of Electrical Lines
City and Landowner may cooperate in good faith with each other in connection with the
formation of an assessment district, if any, and construction of underground utility lines.
4. Development of Project.
4.1 Applicable Regulations; Landowner's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) Landowner shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with
the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein
is intended to limit or restrict City's discretion with respect to (i) review and approval
requirements contained in the Development Regulations, (ii) exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, or (iv) any environmental approvals that
may be required under CEQA or any other federal or state law or regulation in conjunction with
any Subsequent Development Approvals that may be required for the Project, and in this regard,
as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion
to the same extent City would have such discretion in the absence of this Agreement. In
addition, it is understood and agreed that nothing in this Agreement is intended to vest
Landowner's rights with respect to any laws, regulations, rules, or official policies of any other
governmental agency or public utility company with jurisdiction over the Property or the Project;
or any applicable federal or state laws, regulations, rules, or official policies that may be
inconsistent with this Agreement and that override or supersede the provisions set forth in this
Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or
official policies are adopted or applied to the Property or the Project prior or subsequent to the
Agreement Date.
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Landowner has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Landowner represents and City
acknowledges that Landowner would not make these expenditures without this Agreement, and
that Landowner is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
Landowner may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic and, in addition,
Landowner may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that Landowner
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
timing, and sequencing that Landowner deems appropriate within the exercise of Landowner's
sole subjective business judgment, provided that such Development occurs in accordance with
this Agreement and the Development Regulations, notwithstanding adoption by City's electorate
of an initiative to the contrary after the Effective Date. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts Landowner's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
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4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City-wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and
Landowner shall be required to pay all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructed or installed by or on behalf of Owner, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Landowner
has consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this
Agreement, Landowner shall be required to satisfy and pay all Development Exactions at the
time performance or payment is due to the same extent and in the same amount(s) that would
apply to Landowner and the Project in the absence of this Agreement; provided, however, that to
the extent the scope and extent of a particular Development Exaction for the Project has been
established and fixed by City in this Agreement or the conditions of approval for any of the
Development Regulations approved on or before the Agreement Date City shall not alter,
increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without Landowner's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow).
In addition, nothing in this Agreement is intended or shall be deemed to vest Landowner against
the obligation to pay any of the following (which are not included within the definition of
"Development Exactions ") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit; inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications; (ii)
fees and charges levied by any other public agency, utility, district, or joint powers authority,
regardless of whether City collects those fees and charges; or (iii) community facility district
special taxes or special district assessments or similar assessments, business license fees, bonds
or other security required for public improvements, transient occupancy taxes, sales taxes,
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property taxes, sewer lateral connection fees, water service connection fees, new water meter
fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Landowner's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies that are necessary to enable City to comply with the provisions of any such overriding
federal or state laws and regulations, provided that (i) Landowner does not waive its right to
challenge or contest the validity of any such purportedly overriding federal, state, or City law or
regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that prevents or precludes compliance with any provision of this Agreement, City or
Landowner shall provide to the other Party a written notice identifying the federal, state, or City
law or regulation, together with a copy of the law or regulation and a brief written statement of
the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly
thereafter City and Landowner shall meet and confer in good faith in a reasonable attempt to
determine whether a modification or suspension of this Agreement, in whole or in part, is
necessary to comply with such overriding federal, state, or City law or regulation. In such
negotiations, City and Landowner agree to preserve the terms of this Agreement and the rights of
Landowner as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Landowner at no cost to City in resolving the conflict in a
manner which minimizes any financial impact of the conflict upon Landowner. City also agrees
to process in a prompt manner Landowner's proposed changes to the Project and any of the
Development Regulations as may be necessary to comply with such overriding federal, state, or
City law or regulation; provided, however, that the approval of such changes by City shall be
subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Landowner's vested
rights under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Landowner constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Landowner
or the Property any utility capacity, service, or facilities that may be needed to serve the Project,
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whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility
services to the Project on a non - discriminatory basis (i.e., on the same terms and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Newport Beach as and when service connections are provided and service commences).
4.4 Tentative Subdivision Maps
City agrees that Landowner may file and process new and existing vesting tentative maps
for the Property consistent with California Government Code sections 66498.1- 66498.9 and City
of Newport Beach Municipal Code chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Government Code section 66452.6(a)), the life of
any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, shall be extended for the Term of this Agreement.
4.5 Light Industrial Land Uses
Light industrial land uses will cease on the Property as of March 12, 2027.
5. Amendment or Cancellation of Agreement
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Government Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of Landowner.
5.1 Extension.
Landowner may request up to, and upon receipt of a written request from Landowner,
City shall grant two (2) five (5) year extensions that extend the Term of this Agreement for a
total of ten (10) additional years provided that Landowner has submitted its written request to
extend this Development Agreement and the following has occurred: (1) For the first five (5)
year extension, building permits for the two hundred fiftieth (250th) units have been issued; and
(2) For the second five (5) year extension, receipt of building permits for five hundredth (500th)
units have been issued.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
2,14-2013 Q 15
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7. Annual Review of Landowner's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code section 65865.1. Landowner (including any successor to the owner executing this
Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City
may reasonably establish from time to time to cover the actual and necessary costs for the annual
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
7.2 Landowner Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Landowner is required to demonstrate good faith
compliance with the terms of the Agreement. Landowner agrees to furnish such evidence of
good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty
(30) days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not Landowner has, for the period under review,
complied with the terms of this Agreement. If the City Council finds that Landowner has so
complied, the annual review shall be concluded. If the City Council finds, on the basis of
substantial evidence, that Landowner has not so complied, written notice shall be sent to
Landowner by first class mail of the City Council's finding of non - compliance, and Landowner
shall be given at least ten (10) days to cure any noncompliance that relates to the payment of
money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the
payment of money cannot be completed within thirty (30) days for reasons which are beyond the
control of Landowner, Landowner must commence the cure within such thirty (30) days and
diligently pursue such cure to completion. If Landowner fails to cure such noncompliance
within the time(s) set forth above, such failure shall be considered to be a Default and City shall
be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of
Landowner's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Landowner or limit City's rights or remedies for any such
Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the
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alleged Default and a reasonable manner and sufficient period of time (twenty (20) days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the
"Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for
the purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a non - monetary Default cannot be cured during the Cure Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
8.2 Default by Landowner.
If Landowner is alleged to have committed Default and it disputes the claimed Default, it
may make a written request for an appeal hearing before the City Council within ten (10) days of
receiving the Notice of Default, and a public hearing shall be scheduled at the next available City
Council meeting to consider Landowner's appeal of the Notice of Default. Failure to appeal a
Notice of Default to the City Council within the ten (10) day period shall waive any right to a
hearing on the claimed Default. If Landowner's appeal of the Notice of Default is timely and in
good faith but after a public hearing of Landowner's appeal the City Council concludes that
Landowner is in Default as alleged in the Notice of Default, the accrual date for commencement
of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City
Council's denial of Landowner's appeal is communicated to Landowner.
8.3 City's Option to Terminate Agreement.
In the event of an alleged Landowner Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Landowner with the
opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and
complying with Section 8.2 if Landowner timely appeals any Notice of Default with respect to a
non - monetary Default. A termination of this Agreement by City shall be valid only if good
cause exists and is supported by evidence presented to the City Council at or in connection with
a duly noticed public hearing to establish the existence of a Default. The validity of any
termination may be judicially challenged by Landowner. Any such judicial challenge must be
brought within ninety (90) calendar days of service on Landowner, by first class mail, postage
prepaid, of written notice of tenmination by City or a written notice of City's detennination of an
appeal of the Notice of Default as provided in Section 8.2.
8.4 Default by City.
If Landowner alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Landowner may pursue any equitable remedy available to it under this
Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or
specific performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in Landowner's performance hereunder shall neither be a Landowner Default
nor constitute grounds for termination or cancellation of this Agreement by City and shall, at
Landowner's option (and provided Landowner delivers written notice to City within thirty (30)
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days of the commencement of the alleged City Default), extend the Term for a period equal to
the length of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre- existing condition once implementation of this Agreement has
begun. After such implementation, both Landowner and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Landowner and City have invested significant time
and resources and performed extensive planning and processing of the Project in agreeing to the
terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement. It is not possible to
determine the sum of money which would adequately compensate Landowner or City for such
efforts. For the above reasons, City and Landowner agree that damages would not be an
adequate remedy if either City or Landowner fails to carry out its obligations under this
Agreement. Therefore, specific performance of this Agreement is necessary to compensate
Landowner if City fails to carry out its obligations under this Agreement or to compensate City if
Landowner falls to carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from Landowner as set forth herein; and (ii) nothing in this Section 8.7 is intended or
shall be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or
the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for Landowner's Default.
In the event of any Default by Landowner, in addition to any other remedies which may
be available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to
Landowner's Default without recourse from Landowner or its successors or assigns.
8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
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8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action ") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' fees, and costs of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
9. Force Maieure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Landowner's obligation to pay Public
Benefit Fees, be extended pursuant to this Section.
10. Indemnity Obligations of Landowner.
10.1 Indemnity Arising From Acts or Omissions of Landowner.
Except to the extent caused by the intentional misconduct or negligent acts, errors or
omissions of City or one or more of City's officials, employees, agents, attorneys, and
contractors (collectively, the "City's Affiliated Parties ") , Landowner shall indemnify, defend,
and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities,
losses, damages, penalties, obligations, and expenses (including but not limited to reasonable
attorneys' fees and costs) (collectively, a "Claim ") that may arise, directly or indirectly, from the
acts, omissions, or operations of Landowner or Landowner's agents, contractors, subcontractors,
agents, or employees in the course of Development of the Project or any other activities of
Landowner relating to the Property or pursuant to this Agreement. City shall have the right to
select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated
Parties, and Landowner shall pay the reasonable cost for defense of any Claim. The indemnity
provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 10.1, Landowner shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for
the Project (including without limitation any actions taken pursuant to CEQA with respect
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thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant
to this Agreement. Said indemnity obligation shall include payment of reasonable attorney's
fees, expert witness fees; and court costs. City shall promptly notify Landowner of any such
Claim and City shall cooperate with Landowner in the defense of such Claim, If City fails to
promptly notify Landowner of such Claim, Landowner shall not be responsible to indemnify,
defend, and hold City harmless from such Claim until Landowner is so notified and if City fails
to cooperate in the defense of a Claim Landowner shall not be responsible to defend, indemnify,
and hold harmless City during the period that City so fails to cooperate or for any losses
attributable thereto. City shall be entitled to retain separate counsel to represent City against the
Claim and the City's defense costs for its separate counsel shall be included in Landowner's
indemnity obligation, provided that such counsel shall reasonably cooperate with Landowner in
an effort to minimize the total litigation expenses incurred by Landowner. In the event either
City or Landowner recovers any attorney's fees, expert witness fees, costs, interest, or other
amounts from the party or parties asserting the Claim, Landowner shall be entitled to retain the
same (provided it has fully performed its indemnity obligations hereunder). The indemnity
provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Agreement Date Landowner shall indemnify, defend, and hold harmless City and City's
Affiliated Parties from and against any and all Claims for personal injury or death, property
damage, economic loss, statutory penalties or fines, and damages of any kind or nature
whatsoever, including without limitation reasonable attorney's fees, expert witness fees, and
costs, based upon or arising from any of the following: (i) the actual or alleged presence of any
Hazardous Substance on or under any of the Property in violation of any applicable
Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the
Property through the soils or groundwater to a location or locations off of the Property; and (iii)
the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the
Property and any other area disturbed, graded, or developed by Landowner in connection with
Landowner's Development of the Project. The foregoing indemnity obligations shall not apply
to any Hazardous Substance placed or stored on a separate legal lot within the Property after the
Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity
provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
11. Assignment.
Landowner shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer ") Landowner's fee title to the Property, in whole or in part, to a Permitted
Transferee(which successor, as of the effective date of the Transfer, shall become the
"Landowner" under this Agreement) at any time from the Agreement Date until the Termination
Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision
Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any
such transfer shall include the assigrunent and assumption of Landowner's rights, duties, and
obligations set forth in or arising under this Agreement as to the Property or the portion thereof
2;14:2013 Q 20
Fragm
so Transferred and shall be made in strict compliance with the following conditions precedent:
(i) no transfer or assignment of any of Landowner's rights or interest under this Agreement shall
be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to
the effective date of any proposed Transfer, Landowner (as transferor) shall notify City, in
writing, of such proposed Transfer and deliver to City a written assignment and assumption,
executed in recordable form by the transferring and successor Landowner and in a form subject
to the reasonable approval of the City Attorney of City (or designee), pursuant to which the
transferring Landowner assigns to the successor Landowner and the successor Landowner
assumes from the transferring Landowner all of the rights and obligations of the transferring
Landowner with respect to the Property or portion thereof to be so Transferred, including in the
case of a partial Transfer the obligation to perform such obligations that must be performed
outside of the Property so Transferred that are a condition precedent to the successor
Landowner's right to develop the portion of the Property so Transferred. Any Permitted
Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of
Landowner under this Agreement with respect to the portion of the Property sold, transferred,
and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of
less than all of the Property no such Permitted Transferee shall have the right to enter into an
amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations
of the Landowner with respect to the balance of the Property.
Notwithstanding any Transfer, the transferring Landowner shall continue to be jointly
and severally liable to City, together with the successor Landowner, to perform all of the
transferred obligations set forth in or arising under this Agreement unless there is full satisfaction
of all of the following conditions, in which event the transferring Landowner shall be
automatically released from any and all obligations with respect to the portion of the Property so
Transferred: (i) the transferring Landowner no longer has a legal or equitable interest in the
portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the
transferring Landowner is not then in Default under this Agreement and no condition exists that
with the passage of time or the giving of notice, or both, would constitute a Default hereunder;
(iii) the transferring Landowner has provided City with the notice and the fully executed written
and recordable assignment and assumption agreement required as set forth in the first paragraph
of this Section 11; and (iv) the successor Landowner either (A) provides City with substitute
security equivalent to any security previously provided by the transferring Landowner to City to
secure performance of the successor Landowner's obligations hereunder with respect to the
Property or the portion of the Property so Transferred or (B) if the transferred obligation in
question is not a secured obligation, the successor Landowner either provides security reasonably
satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor
Landowner has the financial resources or commitments available to perform the transferred
obligation at the time and in the manner required under this Agreement and the Development
Regulations for the Project.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Landowner in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
2: i 4201 �3 21
12 -80
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Landowner or
other affirmative covenants of Landowner, or to guarantee this perfonnance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Landowner is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Landowner of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and
within sixty (60) days after receiving a Notice of Default with respect to a non - monetary Default.
If the Mortgagee can only remedy or cure a non - monetary Default by obtaining possession of the
Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and
continuity through a receiver or otherwise, and to remedy or cure the non - monetary Default
within sixty (60) days after obtaining possession and, except in case of emergency or to protect
the public health or safety, City may not exercise any of its judicial remedies set forth in this
Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the
sixty (60) -day period. In the case of a non - monetary Default that cannot with diligence be
remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is
reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly
commences to cure the non - monetary Default within sixty (60) days and diligently prosecutes
the cure to completion.
2'142013 3 22
12 -81
13. Miscellaneous Terms.
13.1 Notices.
Any notice or demand that shall be required or permitted by lacy or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
With a copy to:
TO LANDOWNER:
With a copy to:
Newport Beach, California 92663 -3884
Attn: City Manager
City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Uptown Newport, LP
c/o The Shopoff Group, L.P
2 Park Plaza, Suite 700
Irvine, CA 92614
Attn: William A. Shopoff
Jackson De1Marco Tidus Peckenpaugh
2030 Main Street, 12th Floor
Irvine, CA 92614
Attn: Gregory P. Powers, Esq.
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13. 1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Proiect as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
2.142013 �3 23
12 -82
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of the property.
13.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
13.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt.
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
13.8 Counterparts.
z 142013 Q 24
Frz -19l
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement except for the Affordable Housing
Implementation Plan (No. AH2O12 -001).
13.10 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Landowner shall not receive any
of the benefits of this Agreement if any of Landowner's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Landowner shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Landowner's obligations under this Agreement. The provisions
of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
13.11 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Landowner are sophisticated parties who were represented by independent counsel throughout
the negotiations or City and Landowner had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Landowner each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against either Party.
13.12 Successors and Assigns: Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants rumiing with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii)
runs with the Property and each portion thereof; and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
2 [44013 Q 25
if ON
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Landowner. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESCRIPTION
DESIGNATION
A
Legal Description of Property
B
Depiction of the Property
13.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65368.5 and City of Newport
2 14 2013 0
26
%% -M
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
2 142013 wl
[SIGNATURE PAGE FOLLOWS]
27
12 -86
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
ATTEST:
City Clerk
7O ED AS TOI FORM:
L- IW ni
Aaron Harp, City Attorney 1
?.' 142013 v3
UPTOWN NEWPORT LP, a Delaware
limited partnership
By: G &I VI NEWPORT CORP., a
Delaware corporation, its General Partner
By:
Name:
npP�zzese
Its: Vice PresIdw-
"CITY"
CITY OF NEW 6RTBEA•CH
By:
Keith D. Curry Mayor
W]
ifZ:)I
STATE OF C- A- EIFORNVC NOW g6II�
COUNTY OF ORANGE +�! J I
On-(I'�i�/yl 110VU before me, the undersigned, a Notary Public in and for said State,
personally appe red , �YI/111 l'Y ,(0 &1:k AR9 - , who proved to me
on the basis of satisfactory evidence to be thb'persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized capacities
and that by their signature on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
c�� C
I certify under PENALTY OF PERJURY under the laws of the State of C- f that the
foregoing paragraph is true and correct.
itness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
SUSAN FATTORUSSO
Notary Pub 3. S.ai` of New York
No. 01 `r AL021152
Qual., rd in K-rrg; Couf1rc/
Commission E:<p'res March 8, nty 2
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and who proved to me
on the basis of satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized capacities
and that by their signature on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public in and for
said County and State
2.14 2013 Q -29-
MM
EXHIBIT A
LEGAL DESCRIPTION
Being a subdivision of Lots 1 and 2 of Tract No. 7953, in the City of Newport Beach,
County of Orange, State of California, as shown on a map recorded in Book 310, Pages 7
to 11 inclusive, of Miscellaneous Maps, recorded of said County.
12 -89
EXHIBIT B
DEPICTION OF PROPERTY
2:14 2013 Q
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Exhibit B
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A
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Master Site Plan
Uptown Newport
Uptown Newport LP
FROO11
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NOmebullAer services DIV19M
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RECORDTNG REQUESTED BY:
First American Title Insurance Company
WHEN RECORDED MAIL TO:
Gromet & Associates
114 Pacifica, Suite 250
Irvine, CA 92618
Attention: Stevan J. Gromet, Esq.
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
111111111111111111I11IIIII111111111111111111111111111111111111111111111111 15.00
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201400006035212:05 pm 02114114
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PARTIAL ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (this "Partial Assignment') is made and entered into as of February 14, 2014
(the "Effective Date'l, by and between UPTOWN NEWPORT LP, a Delaware limited
partnership ( "Assignor'), and UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited
liability company ( "Asslgnee'o.
RECITALS
A. Assignor is the "Landowner" under that certain Development Agreement between
City of Newport Beach and Uptown Newport LP. Concerning Uptown Newport Property,
recorded on March 26, 2013, as Instrument No. 2013- 000180939 in the Official Records of the
County Recorder of Orange County, California (the "Development Agreement'. The
Development Agreement relates to that certain real property located in the City of Newport
Beach, County of Orange, State of California, and legally described as:
Parcels 1 -4, inclusive, of Parcel Map No. 2013 -108 in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
California (the "Uptown Property').
B. Concurrently herewith, Assignor is conveying to Assignee Parcels 2 and 4 of the
Uptown Property, legally described as follows:
Parcels 2 and 4 of Parcel Map No. 2013 -108 in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
California (the "Property').
C. In connection with such conveyance, Assignor desires to assign to Assignee all of
its rights and obligations under the Development Agreement relating to the Property, and
Assignee wishes to accept such assignment, effective as of the Effective Date, as more
particularly set forth below.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 1 of 3
12 -92
Recording RepuWo or.
Frsl Americon Title eempen/
IbmeeuliderServkes Divleipl
aLbdlvklon Detwrdr"
'-/ 55 259a.
RECORDING REQUESTED BY:
First American Title Insurance Company
WHEN RECORDED MAIL TO:
Gromet & Associates
114 Pacifica, Suite 250
Irvine, CA 92618
Attention: Stevan J. Gromet, Esq.
(Space
PARTIAL ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (this "Partial Assignment'D is made and entered into as of February 14, 2014
(the "Effective Date "), by and between UPTOWN NEWPORT LP, a Delaware limited
partnership ( "Assignor "), and UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited
liability company ( "Assignee's.
RECITALS
A. Assignor is the "Landowner" under that certain Development Agreement between
City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property,
recorded on March 26, 2013, as Instrument No. 2013 - 000180939 in the Official Records of the
County Recorder of Orange County, California (the "Development Agreement "). The
Development Agreement relates to that certain real property located in the City of Newport
Beach, County of Orange, State of California, and legally described as:
Parcels 1 -4, inclusive, of Parcel Map No. 2013 -108 in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
California (the "Uptown Property ").
B. Concurrently herewith, Assignor is conveying to Assignee Parcels 2 and 4 of the
Uptown Property, legally described as follows:
Parcels 2 and 4 of Parcel Map No. 2013 -108 in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
California (the "Property ").
C. In connection with such conveyance, Assignor desires to assign to Assignee all of
its rights and obligations under the Development Agreement relating to the Property, and
Assignee wishes to accept such assignment, effective as of the Effective Date, as more
particularly set forth below.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page I of 3
12 -93
D. Pursuant to clause (iv) of the second paragraph of Section 11 of the Development
Agreement, a successor Landowner must provide substitute security for any security posted by
the transferring Landowner with the City of Newport Beach. Since no security has been posted
or is required to be posted under the Development Agreement prior to this Partial Assignment,
the requirement of said clause (iv) is not applicable.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
I . Assignment. Effective as of the Effective Date, Assignor does hereby transfer and
assign to Assignee all of its right, title and interest in and to, and obligations under, the
Development Agreement (including the Development Approvals and all documents and
instruments relating to or implementing the Development Agreement) to the extent such right,
title, interest, and obligations relate to the Property, including any obligations that must be
performed outside of the Property that are a condition precedent to Assignee's right to develop
the Property.
2. Assumption. Effective as of the Effective Date, Assignee hereby accepts said
assignment and agrees to keep, perform and be bound by all the terms, covenants and conditions
contained in the Development Agreement (including the Development Approvals and all documents
and instruments relating to or implementing the Development Agreement) on the part of the
"Landowner" therein to the extent such terms, covenants and conditions relate to the Property,
including any obligations that must be performed outside of the Property that are a condition
precedent to Assignee's right to develop the Property, as though Assignee were the original
"Landowner" under the Development Agreement (the "Obligations'). In accordance with Section
11 of the Development Agreement, the parties hereby confirm that, subject to the satisfaction of the
conditions specified in the last paragraph of Section 11 of the Development Agreement, as
determined by the City of Newport Beach: (a) Assignee alone shall be liable for the performance of
the Obligations relating to the Property, provided that, except as otherwise provided above,
Assignee shall have no obligations with respect to any portion of the Uptown Property other than
the Property; and (b) In accordance with Section 11 of the Development Agreement, Assignor is
relieved of its duty to perform (and released from) the Obligations with respect to the Property.
Assignor shall continue to have the obligation for performance of all obligations under the
Development Agreement not assumed by Assignee pursuant to this Partial Assignment.
3. Miscellaneous. This Partial Assignment can be amended only by an amendment in
writing in a form subject to the reasonable approval by the City Attorney (or his designee) and
signed by all the parties, and any term herein can be waived only by a written waiver signed by the
party against whom such waiver is to be asserted. This Partial Assignment is intended to be the final
expression of the parties' agreement and supersedes any and all prior restrictions, promises,
representations, warranties, agreements, understandings and undertakings between the parties with
respect to the within subject matter. There are no restrictions, promises, representations, warranties,
agreements, understandings or undertakings with respect to such subject matter other than those set
forth or referred to herein. This Partial Assignment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the
same document.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 2 of 3
12 -94
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Partial
Assignment as of the date first above written.
"Assignor" UPTOWN NEWPORT LP, a Delaware limited
partnership
" Assignee"
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
By: The Shopoff Corporation, a Delaware
corporation, general partner
l
By: aj� V
William A. Shopof , lyreddunt
UPTOWN NEWPORT Ji
Delaware limited liability
illiam A.
LLC,a
On February a, 2014, before me, TERRI HOVDESTAD, Notary Public, personally
appeared WILLIAM A. SHOPOFF, who proved to me on the basis of satisfactory evidence
to be the persc f* whose name( -4) is/8re, subscribed to the within instrument and
acknowledged to me that he /s1nZrhR executed the same in his/11c�r/ilteir authorized
capacity, and that by his /hc(thi it signaturets -,on the instrument the person, or the
entity upon behalf of which the personnKacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
TERRI HOVDESTAD
Commission O 1891635
WITNESS my hand an ficial seal.
U
. d~ Notary Public - California
z Orange County
My Comm. Expires Jun 28.2014 +
° (Seal) February ) a , 2014
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 3 of 3
MMO&I
Rewft RepueelW Br.
first American rifie eampaM
Ibm 'irnnual M
145-540Z
RECORDING REQUESTED BY:
First American Title Insurance Company
WHEN RECORDED MAIL TO:
Gromct & Associates
114 Pacifica, Suite 250
Irvine, CA 92618
Attention: Stevan J. Gromet, Esq.
Recorded in Official Records, Orange County
Hugh Nguyen,Clerk4tecorder
111111111I11II III IIIII11I111111111111111111111111111111111IIIIIIIIII III IIII 15.00
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201400006035412:05 pm 02114114
19 40S A31 F13 3
0.00 0.00 0.00 0.00 6.00 0.00 0.00 0.00
PARTIAL ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (this `Partial Assignment's is made and entered into as of February 14, 2014
(the `Effective Date', by and between UPTOWN NEWPORT LP, a Delaware limited
partnership ( "Assignor's, and TSG — PARCEL 1, LLC, a Delaware limited liability company
(`Assignee'D.
RECITALS
A. Assignor is the "Landowner" under that certain Development Agreement between
City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property,
recorded on March 26, 2013, as Instrument No. 2013 - 000180939 in the Official Records of the
County Recorder of Orange County, California (the "Development Agreement'j. The
Development Agreement relates to that certain real property located in the City of Newport
Beach, County of Orange, State of California, and legally described as:
Parcels 1-4, inclusive, of Parcel Map No. 2013 -108 in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
California (the "Uptown Property').
B. Concurrently herewith, Assignor is conveying to Assignee Parcel 1 of the Uptown
Property, legally described as follows:
Parcel 1 of Parcel Map No. 2013 -108 in the City of Newport Beach, County of
Orange, State of California, as shown on a map filed in Book 378, Pages 10
through 12, inclusive of Parcel Maps, Records of Orange County, California (the
"Property').
C. In connection with such conveyance, Assignor desires to assign to Assignee all of
its rights and obligations under the Development Agreement relating to the Property, and
Assignee wishes to accept such assignment, effective as of the Effective Date, as more
particularly set forth below.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page I of 3
12 -96
Reaorft Requested ert
first Amedew Title CempM
Uomebuilder Services Division
&r WWsiooDewinerd
y ss z6oz
RECORDING REQUESTED BY:
First American Title Insurance Company
WHEN RECORDED MAIL TO:
Gromet & Associates
114 Pacifica, Suite 250
Irvine, CA 92618
Attention: Stevan J. Gromet, Esq.
PARTIAL ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (this "Partial Assignment ") is made and entered into as of February 14, 2014
(the "Effective Date "), by and between UPTOWN NEWPORT LP, a Delaware limited
partnership ( "Assignor "), and TSG — PARCEL 1, LLC, a Delaware limited liability company
( "Assignee ").
RECITALS
A. Assignor is the "Landowner" under that certain Development Agreement between
City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property,
recorded on March 26, 2013, as Instrument No. 2013 - 000180939 in the Official Records of the
County Recorder of Orange County, California (the "Development Agreement "). The
Development Agreement relates to that certain real property located in the City of Newport
Beach, County of Orange, State of California, and legally described as:
Parcels 1 -4, inclusive, of Parcel Map No. 2013 -108 in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
California (the "Uptown Property'.
B. Concurrently herewith, Assignor is conveying to Assignee Parcel 1 of the Uptown
Property, legally described as follows:
Parcel 1 of Parcel Map No. 2013 -108 in the City of Newport Beach, County of
Orange, State of California, as shown on a map filed in Book 378, Pages 10
through 12, inclusive of Parcel Maps, Records of Orange County, California (the
"Property'.
C. In connection with such conveyance, Assignor desires to assign to Assignee all of
its rights and obligations under the Development Agreement relating to the Property, and
Assignee wishes to accept such assignment, effective as of the Effective Date, as more
particularly set forth below.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page I of 3
12 -97
D. Pursuant to clause (iv) of the second paragraph of Section 11 of the Development
Agreement, a successor Landowner must provide substitute security for any security posted by
the transferring Landowner with the City of Newport Beach. Since no security has been posted
or is required to be posted under the Development Agreement prior to this Partial Assignment,
the requirement of said clause (iv) is not applicable.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Effective as of the Effective Date, Assignor does hereby transfer and
assign to Assignee all of its right, title and interest in and to, and obligations under, the
Development Agreement (including the Development Approvals and all documents and
instruments relating to or implementing the Development Agreement) to the extent such right,
title, interest, and obligations relate to the Property, including any obligations that must be
performed outside of the Property that are a condition precedent to Assignee's right to develop
the Property.
2. Assumption. Effective as of the Effective Date, Assignee hereby accepts said
assignment and agrees to keep, perform and be bound by all the terms, covenants and conditions
contained in the Development Agreement (including the Development Approvals and all documents
and instruments relating to or implementing the Development Agreement) on the part of the
"Landowner" therein to the extent such terms, covenants and conditions relate to the Property,
including any obligations that must be performed outside of the Property that are a condition
precedent to Assignee's right to develop the Property, as though Assignee were the original
"Landowner" under the Development Agreement (the "Obiigations'D. In accordance with Section
1 I of the Development Agreement, the parties hereby confirm that, subject to the satisfaction of the
conditions specified in the last paragraph of Section I I of the Development Agreement, as
determined by the City of Newport Beach: (a) Assignee alone shall be liable for the performance of
the Obligations relating to the Property, provided that except as otherwise provided above,
Assignee shall have no obligations with respect to any portion of the Uptown Property other than
the Property; and (b) In accordance with Section 11 of the Development Agreement, Assignor is
relieved of its duty to perform (and released from) the Obligations with respect to the Property.
Assignor shall continue to have the obligation for performance of all obligations under the
Development Agreement not assumed by Assignee pursuant to this Partial Assignment.
3. Miscellaneous. This Partial Assignment can be amended only by an amendment in
writing in a form subject to the reasonable approval by the City Attorney (or his designee) and
signed by all the parties, and any term herein can be waived only by a written waiver signed by the
party against whom such waiver is to be asserted. This Partial Assignment is intended to be the final
expression of the parties' agreement and supersedes any and all prior restrictions, promises,
representations, warranties, agreements, understandings and undertakings between the parties with
respect to the within subject matter. There are no restrictions, promises, representations, warranties,
agreements, understandings or undertakings with respect to such subject matter other than those set
forth or referred to herein. This Partial Assignment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the
same document.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 2 of 3
12 -98
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Partial
Assignment as of the date first above written.
"Assignor" UPTOWN NEWPORT LP, a Delaware limited
partnership
By: The Shopoff Corporation, a Delaware
corporation, general partner
By: du/
William A. S poff, Pfresident
"Assignee" TSG — PARCEL I, LLC, a Delaware limited
liability com an I
By:
William A. Shopoff, anager
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On February L a✓ 2014, before me, TERRI HOVDESTAD, Notary Public, personally
appeared WILLIAM A. SHOPOFF, who proved to me on the basis of satisfactory evidence
to be the persod(s� whose name(S�is/arg subscribed to the within instrument and
acknowledged to me that he /sh<t?re� executed the same in his/ xth�k authorized
capacity and that by his/l'KRF ' signatureKon the instrument the person( or the
entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
TERRIHOVOESTAD
Commission # 1891635
WITNESS my hand and of = Q Notary Public - California z Orange County
My Comm. Expires Jun 28, 2014 r
rata (Seal) February c�-, 2014
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 3 of 3
12 -99
Recording Requested Sy:
First American Title Company
Hamebuider Services DNlsion
Subdivision Department
y5526a3
1:7 X • I0l : b7 1? 041111 t7 x• l7 l �� Y � 17 d `l I
First American Title Insurance Company
WHEN RECORDED MAIL TO:
Gromet & Associates
114 Pacifica, Suite 250
Irvine, CA 92618
Attention: Stevan J. Gromet, Esq.
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk4tecorder
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201400006035612:05 pm 02J14114
19 405 A31 F13 4
0.00 0.00 0.00 0.00 9.00 0.00 0.00 0.00
Recorder's Use)
PARTIAL ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (this "Partial Assignment ") is made and entered into as of February 14, 2014
(the "Effective Date', by and between UPTOWN NEWPORT LP, a Delaware limited
partnership ( "Assignor'j, and TPG /TSG VENTURE I ACQUISITION LLC; a Delaware limited
liability company ( "Asslgnee'�.
RECITALS
A. Assignor is the "Landowner" under that certain Development Agreement between
City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property,
recorded on March 26, 2013, as Instrument No. 2013- 000180939 in the Official Records of the
County Recorder of Orange County, Califomia (the "Development Agreement'. The
Development Agreement relates to that certain real property located in the City of Newport
Beach, County of Orange, State of California, and legally described as:
Parcels 1 -4, inclusive, of Parcel Map No. 2013 -108 in the City ofNewpoit Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
Califomia (the "Uptown Property ").
B. Concurrently herewith, Assignor is conveying to Assignee Parcel 3 of the Uptown
Property, legally described as follows:
Parcel 3 of Parcel Map No. 2013 -108 in the City of Newport Beach, County of
Orange, State of Califomia, as shown on a map filed in Book 378, Pages 10
through 12, inclusive of Parcel Maps, Records of Orange County, California (the
"Property'l.
C. In connection with such conveyance, Assignor desires to assign to Assignee all of
its rights and obligations under the Development Agreement relating to the Property, and
Assignee wishes to accept such assignment, effective as of the Effective Date, as more
particularly set forth below.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page I of 4
12 -100
Recording Requested By:
First American Title Company
Homebuilder Services Division
Subdivision Department
v5s uo3
RECORDING REQUESTED BY:
First American Title Insurance Company
WHEN RECORDED MAIL TO:
Gromet & Associates
114 Pacifica, Suite 250
Irvine, CA 92618
Attention: Stevan J. Gromet, Esq.
PARTIAL ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (this "Partial Assignment ") is made and entered into as of February 14, 2014
(the "Effective Date "), by and between UPTOWN NEWPORT LP, a Delaware limited
partnership ( "Assignor "), and TPG /TSG VENTURE I ACQUISITION LLC, a Delaware limited
liability company ( "Assignee ").
RECITALS
A. Assignor is the "Landowner" under that certain Development Agreement between
City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property,
recorded on March 26, 2013, as Instrument No. 2013- 000180939 in the Official Records of the
County Recorder of Orange County, California (the "Development Agreement'. The
Development Agreement relates to that certain real property located in the City of Newport
Beach, County of Orange, State of California, and legally described as:
Parcels 1 -4, inclusive, of Parcel Map No. 2013 -108 in the City of Newport Beach,
County of Orange, State of California, as shown on a map filed in Book 378,
Pages 10 through 12, inclusive of Parcel Maps, Records of Orange County,
Califomia (the "Uptown Property ").
B. Concurrently herewith, Assignor is conveying to Assignee Parcel 3 of the Uptown
Property, legally described as follows:
Parcel 3 of Parcel Map No. 2013 -108 in the City of Newport Beach, County of
Orange, State of Califomia, as shown on a map filed in Book 378, Pages 10
through 12, inclusive of Parcel Maps, Records of Orange County, Califomia (the
"Property „).
C. In connection with such conveyance, Assignor desires to assign to Assignee all of
its rights and obligations under the Development Agreement relating to the Property, and
Assignee wishes to accept such assignment, effective as of the Effective Date, as more
particularly set forth below.
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page] of4
12 -101
D. Pursuant to clause (iv) of the second paragraph of Section 1 I of the Development
Agreement, a successor Landowner must provide substitute security for any security posted by
the transferring Landowner with the City of Newport Beach. Since no security has been posted
or is required to be posted under the Development Agreement prior to this Partial Assignment,
the requirement of said clause (iv) is not applicable.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Effective as of the Effective Date, Assignor does hereby transfer and
assign to Assignee all of its right, title and interest in and to, and obligations under, the
Development Agreement (including the Development Approvals and all documents and
instruments relating to or implementing the Development Agreement) to the extent such right,
title, interest, and obligations related to the Property, including any obligations that must be
performed outside of the Property that are a condition precedent to Assignee's right to develop
the Property.
2. Assumption. Effective as of the Effective Date, Assignee hereby accepts said
assignment and agrees to keep, perform and be bound by all the terms, covenants and conditions
contained in the Development Agreement (including the Development Approvals and all documents
and instruments relating to or implementing the Development Agreement) on the part of the
"Landowner" therein to the extent such terms, covenants and conditions related to the Property,
including any obligations that must be performed outside of the Property that are a condition
precedent to Assignee's right to develop the Property, as though Assignee were the original
"Landowner" under the Development Agreement (the "Obiigations'�. In accordance with Section
11 of the Development Agreement, the parties hereby confirm that, subject to the satisfaction of the
conditions specified in the last paragraph of Section 11 of the Development Agreement, as
determined by the City of Newport Beach: (a) Assignee alone shall be liable for the performance of
the Obligations relating to the Property, provided that, except as otherwise provided above,
Assignee shall have no obligations with respect to any portion of the Uptown Property other than
the Property; and (b) In accordance with Section 11 of the Development Agreement, Assignor is
relieved of its duty to perform (and released from) the Obligations with respect to the Property.
Assignor shall continue to have the obligation for performance of all obligations under the
Development Agreement not assumed by Assignee pursuant to this Partial Assignment.
3. Miscellaneous. This Partial Assignment can be amended only by an amendment in
writing in a form subject to the reasonable approval by the City Attorney (or his designee) and
signed by all the parties, and any term herein can be waived only by a written waiver signed by the
party against whom such waiver is to be asserted. This Partial Assignment is intended to be the final
expression of the parties' agreement and supersedes any and all prior restrictions, promises,
representations, warranties, agreements, understandings and undertakings between the parties with
respect to the within subject matter. There are no restrictions, promises, representations, warranties,
agreements, understandings or undertakings with respect to such subject matter other than those set
forth or referred to herein. This Partial Assignment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT Page 2 of 4
12 -102
shall be deemed to be an original and all of which taken together shall constitute one and the
same document.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Partial
Assignment as of the date first above written.
"ASSIGNOR"
UPTOWN NEWPORT LP, a Delaware
limited partnership
By: The Shopoff Corporation, a
Delaware corporation, general
partner
M
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
"ASSIGNEE"
TPG /TSG VENTURE I ACQUISITION, LLC,
a Delaware limited liability company
By: TPG 2014 -2 (Uptown Newport) LLC,
a Delaware limited liability company
its Managing Member
By:
Kebrieth A. Picerne, President
On February /a; 2014, before me, TERRI HOVDESTAD, Notary Public, personally appeared
WILLIAM A. SHOPOFF, who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(&) is /ais,subscribed to the within instrument and acknowledged to me that
he /shedthe-y- executed the same in his/hLx/their_authorized capacity(icss'), and that by his/her /tNr
signature(S�on the instrument the person'(s),or the entity upon behalf of which the persons
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
TERRIHOVDESTAD
Commisslon # 1891635
WITNESS my hand and 1 'al seal. $ . -e Notary Public - California z
z Orange County s
My Comm. Expires Jun 28, 2014 r
Signa re (Seal) February 2014
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTPage 3
of 4
12 -103
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On February a 201(4, before m/ e,�{� V1YI tt �C� r �G1 Notary Public,
personally appeared �Yt yt�.� �l A .1' 1 u r i'l:L_ , who proved to me on the basis of
satisfactory evidence to be the person} whose nametq is/aa r�subscribed to the within
instrument and acknowledged to me that he /slit y executed the same in his/�Wt ajr
authorized capacity(b&Q, and that by his/hr,/4i signatures on the instrument the person or
the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
TERRIHOVDESTAD
r' Commission # 1891635
WITNESS my h nd o ial se i .-o Notary Public • California z
z Orange County It
My Comm. Expires Jun 28, 2014 r
Signature (Seal) February 2014
PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTPage 4
of 4
12 -104
Attachment No. CC 6
Draft DA Amendment - Redlined
12 -105
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code Sections 6103 and
27383.
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
TSG- PARCEL 1, LLC, TPG /TSG VENTURE I ACQUISITION, LLC, AND
UPTOWN NEWPORT JAMBOREE, LLC
CONCERNING UPTOWN NEWPORT PROPERTY
4/21/2015 v2
1251192.1
12 -106
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
(Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government
Code sections 65864- 65869.5)
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First
Amendment ") is dated for reference purposes as of the _ day of 2015 (the
"Amendment Date "), and is being entered into by and between the CITY OF NEWPORT
BEACH ( "City"), on the one hand, and TSG- Parcel 1, LLC, a Delaware limited liability
company, TPG /TSG Venture I Acquisition, LLC, a Delaware limited liability company and
Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the
"Landowner" or "Landowners "), on the other. City and Landowners are sometimes
collectively referred to in this First Amendment as the "Parties" and individually as a "Party."
RECITALS
A. Landowners are the owners of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as Uptown
Newport, located at 4311 -4321 Jamboree Road (APN Nos. 445- 131 -02 and 445- 131 -03), and
generally located on the west side of Jamboree Road, between Birch Street and Fairchild Road
(the "Property"). The Property is more particularly described in the legal description attached
hereto as Exhibit A and incorporated herein by reference.
B. City and Uptown Newport LP, a Delaware limited partnership, entered into that
certain Development Agreement dated March 12, 2013, for reference purposes and recorded in
the Official Records of Orange County on March 26, 2013, as document number
2013000180939 (the "Agreement "). All terms not otherwise defined in this First Amendment
shall have the meanings given them in the Agreement.
C. On or around February 14, 2014, Uptown Newport, LP, a Delaware limited
partnership, transferred ownership of the Property and assigned the Agreement to TSG - Parcel 1,
LLC, a Delaware limited liability company, TPG /TSG Venture I Acquisition, LLC, a Delaware
limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability
company.
D. Under the Agreement, Landowners must pay a Public Benefit Fee to the City in
the sum of Thirty-Two Thousand Five Hundred Dollars ($32,500.00), as adjusted according to
the Agreement, per residential dwelling unit developed as part of the Project at the time each
residential building permit is issued. The Parties now desire to amend the Agreement as set forth
in this First Amendment to require payments of the Public Benefit Fee at the issuance of
building permits, or at Landowner's option, at the issuance of certificates of occupancy, per
residential dwelling unit.
E. In addition to constructing and improving two (2) approximately one (1) acre
parks, Landowners are also required to pay certain parkland dedication in -lieu fees to the City,
based on the pro -rated gross acreage of the final map minus any parkland dedication and
applicable credits, for all units included on a final map at the time that the first building permit is
issued for a unit on that final map. The Parties now desire to amend the Agreement as set forth in
4/21/2015 v2 -1- 1251 192.1
12 -107
this First Amendment to allow the Landowner, as an alternative, to defer payment of all or a
portion of the parkland dedication in -lieu fees, but an interest charge will accrue and be applied
at time of payment(s), as more specifically described below. Additionally, the Parties now desire
to amend the Agreement as set forth in this First Amendment to require payment of parkland
dedication in -lieu fees, as applicable, on a per -unit basis at the issuance of a building permit for
individual buildings in the Project.
F. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This First
Amendment is consistent with the Development Agreement Ordinance.
G. This First Amendment is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "Mixed -Use
Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown
Newport Planned Community Development Plan.
H. On March 19, 2015, the Planning Commission held a properly noticed public
hearing on this First Amendment and considered the testimony and information submitted by
City staff, Landowners, and members of the public. On March 19, 2015, consistent with
applicable provisions of the Development Agreement Statute and Development Agreement
Ordinance, the Planning Commission adopted Resolution No. 1976, recommending the City
Council approve this First Amendment.
I. In recognition of the significant public benefits that the Agreement, as amended,
provides, the City Council has found that this First Amendment: (i) is consistent with the City of
Newport Beach General Plan as of the date of the Agreement and this First Amendment; (ii) is in
the best interests of the health, safety, and general welfare of City, its residents, and the public;
(iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is
consistent and has been approved consistent with the final Environmental Impact Report (No.
ER2012 -001) (SCH #2010051094) ( "EIR") that has been certified by the City Council on or
before the Agreement Date, which analyzed the environmental effects of the proposed
development of the Project on the Property, and all of the findings, conditions of approval and
mitigation measures related thereto; and (v) is consistent and has been approved consistent with
provisions of California Government Code section 65867 and City of Newport Beach Municipal
Code chapter 15.45.
J. On April 28, 2015, the City Council held a properly noticed public hearing on this
First Amendment and considered the testimony and information submitted by City staff,
Landowners, and members of the public. On , 2015, consistent with applicable
provisions of the Development Agreement Statute and Development Agreement Ordinance, the
City Council held second reading and adopted Ordinance No. , finding the First
Amendment to be consistent with the City of Newport Beach General Plan and approving this
First Amendment.
4/21/2015 v2 2 1251192.1
12 -108
AGREEMENT
NOW, THEREFORE, City and Landowners agree as follows:
1. Public Benefit Fee. Section 3.1 is hereby amended in its entirety to read as
follows:
"As consideration for City's approval and performance of its obligations set forth
in this Agreement, Landowner shall pay to City a fee that shall be in addition to
any other fee or charge to which the Property and the Project would otherwise be
subject (herein, the "Public Benefit Fee ") in the sum of Thirty -Two Thousand
Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as
part of the Project, with the unpaid balance of said Public Benefit Fee increased
beginning on January 1, 2015, by the percentage increase in the CPI Index
between the Effective Date and said January 1st date (the first "Adjustment Date ")
and thereafter with the unpaid balance of said Public Benefit Fee increased on
each subsequent January I during the Term of this Agreement (each, an
"Adjustment Date ") by the percentage increase in the CPI Index in the year prior
to the applicable Adjustment Date. The amount of the percentage increase in the
CPI Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for
example, if the Effective Date of this Agreement falls on July 1 and the most
recently available CPI Index figure on the first Adjustment Date (January 1 of the
following year) is the CPI Index for November of the preceding year, the
percentage increase in the CPI Index for that partial year (a 6 -month period) shall
be calculated by comparing the CPI Index for November of the preceding year
with the CPI Index for May of the preceding year (a 6 -month period). In no event,
however, shall application of the CPI Index reduce the amount of the Public
Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any
applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per
unit basis at the time each residential building permit is issued, or at Landowner's
option and in Landowner's sole discretion, at the time each certificate of
occupancy is issued. Notwithstanding any other provision set forth in this
Agreement to the contrary, during the Term of this Agreement City shall not
increase the Public Benefit Fee except pursuant to the CPI Index as stated in this
Section 3.1. Landowner acknowledges by its approval and execution of this
Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its
obligation to pay the Public Benefit Fee is an essential term of this Agreement and
is not severable from City's obligations and Landowner's vesting rights to be
acquired hereunder, and that Landowner expressly waives any constitutional,
statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such fee on any ground whatsoever, including
without limitation pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution, California Constitution Article I Section 19, the Mitigation
Fee Act (California Government Code Section 66000 et seq.), or otherwise. In
addition to any other remedy set forth in this Agreement for Landowner's default,
if Landowner shall fail to timely pay any portion of the Public Benefit Fee when
4/21/2015 v2
3
1251192.1
12 -109
due City shall have the right to withhold issuance of any further building permits,
occupancy permits, or other development or building permits for the Project."
2. Park Fees. Section 3.2.1, subdivision (iv), is hereby amended in its entirety to
read as follows:
"In -lieu of parkland dedication fees ( "Park In -Lieu Fees ") shall be paid to the City
prior to the issuance of building permits. Payment of Park In -Lieu Fees shall be
made for all units included on any final map(s) at the time that the first building
permit is issued for any single unit included on a final map(s). However, at
Landowner's option and in Landowner's sole discretion, Landowner may elect to
defer payment(s) of Park In -Lieu Fees for some or all units contained on any final
map(s) (the "Deferred Units ") until building permits are sought for the building or
buildings containing those Deferred Units. In such cases, Landowner shall pay, in
addition to the Park hi -Lieu Fees for the Deferred Units, an interest charge in the
amount of four percent (4 %) per annum for any Deferred Units in Phase 1 as
Phase 1 is shown on the approved phasing plan for the Project), and five percent
(5 %) per annum for any Deferred Units in Phase 2 (as Phase 2 is shown on the
approved phasing plan for the Project). The period in which the interest charge(s)
shall apply to any particular Deferred Units shall begin at Landowner's election to
defer payment of Park In -Lieu Fees for those Deferred Unit(s), and shall continue
to accrue on a per annum basis until such time that Landowner actually pays the
Park In -Lieu Fees for those particular unit(s) (the "Deferral Period "). The Park
In -Lieu Fees for any Deferred Units shall be paid on a per -unit basis no later than
upon the issuance of a building permit per individual building(s) in the Project.
For example, if a building permit is sought for a building in Phase 1 that includes
100 Deferred Units, Park In -Lieu Fees plus the interest charge of four percent
(4 %) per annum that accrued over the Deferral Period for those Deferred Units
must be paid for those 100 Deferred Units before the building permit for that
building can be issued. As another example, if a building permit is sought for a
building in Phase 2 that includes 300 Deferred Units, Park In -Lieu Fees plus the
interest charge of five percent ON per annum that accrued over the Deferral
Period for those Deferred Units must be paid for those 300 Deferred Units before
the building permit for that building can be issued. The fee amount for Park In-
Lieu Fees shall be calculated on a per -unit basis based on the pro -rated gross
acreage of the final map minus any parkland dedication and applicable credits for
recreational improvements approved by the City pursuant to the General Plan and
the Subdivision Code within the area encompassed by the final map, then dividing
the balance by the number of units contained in the area encompassed by that
final map. For example, if a final map encompasses 10 acres of the 25.05 acre
planned community (or 39.92% of the total acreage), the amount of the Park In-
lieu Fees €ems required to be paid on a per -unit basis prix_ to final map rveordation
would be 39.92% of the 13.62 acre parkland dedication requirement minus any
parkland dedication and any approved credits for recreational improvements,
divided by the number of units contained within that final map."
3. Full Force and Effect. Except as modified by this First Amendment, the
Agreement shall remain in full force and effect.
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4. Recitals. The Recitals set forth above are true and correct and incorporated
herein by reference.
5. Counterparts. This First Amendment may be signed by the Parties in different
counterparts and the signature pages combined shall create a single document binding on all
Parties.
6. Recordation. The City Clerk of City shall record this First Amendment in the
Office of the County Recorder of the County of Orange within the period required by California
Government Code section 65868.5 and City of Newport Beach Municipal Code section
15.45.100. The date of this First Amendment and the date of recordation of this First
Amendment shall not modify or amend the Effective Date or the Termination Date of the
Agreement.
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[SIGNATURE PAGE FOLLOWS]
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LANDOWNERS SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"LANDOWNERS"
UPTOWN NEWPORT JAMBOREE, LLC,
a Delaware limited liability company
IRz
Name:
Title:
TPG /TSG VENTURE I ACQUISITION, LLC,
a Delaware limited liability company
IC
Title:
TSG - PARCEL 1, LLC,
a Delaware limited liability company
IC
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CITY SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"CITY"
CITY OF NEWPORT BEACH
IC
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his/her signature(s) on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015, before me, a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity,
and that by his/her signature(s) on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Being a subdivision of Lots I and 2 of Tract No. 7953, in the City of Newport Beach,
County of Orange, State of California, as shown on a map recorded in Book 310, Pages
7 to 11 inclusive, of Miscellaneous Maps, recorded of said County.
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