HomeMy WebLinkAboutC-3432 - Annexation and Development Agreement re: Newport Coast - also refer to C-3382CONTRACT NO.
C-3432
AMENDMENT NEVER
ENTERED INTO
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Attorney's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658
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Recorded in Official Records, County of Orange
Gary Granville, Clerk- Recorder
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Space above this line for Recorder's use only.
EXEMPT RECORDING REQUEST PER
GOVERNMENT CODE 6103 �
ANNEXATION AND DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
Um
THE IRVINE COMPANY
WI,
IRVINE COMMUNITY DEVELOPMENT COMPANY
CONCERNING THE NEWPORT COAST
AND ADJACENT PROPERTIES
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ANNEXATION AND DEVELOPMENT AGREEMENT
This Annexation and Development Agreement (hereinafter "Agreement') is
entered into effective as of August 23, 2001, (hereinafter the "Effective Date ") by
and among the CITY OF NEWPORT BEACH (hereinafter "CITY "), and THE
IRVINE COMPANY and IRVINE COMMUNITY DEVELOPMENT COMPANY
(hereinafter collectively "OWNER ").
RECITALS
A. OWNER collectively owns a substantial portion of the real property
( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of
approximately 7799 acres.
B. The Property is currently in the unincorporated area of the County of
Orange ( "County "). OWNER has obtained development approvals from the
County and the California Coastal Commission for the majority of the Property
from the County and has commenced subdivision and development of the
Property under the jurisdiction of the County.
C. The development approvals for the Property have been granted after
a lengthy planning process that involved the careful review of numerous
environmental documents (Planning and Environmental History is attached as
Exhibit C). The development approvals include:
1. The County of Orange Newport Coast Local Coastal Program
and Master Coastal Development Permit for that portion of the
Property in the Coastal Zone.
2. A Development Agreement with the County (County
Agreement).
3. The Newport Ridge Planned Community Plan.
4. Subdivision Maps.
D. The Property is also part of the Natural Communities Conservation
Plan (NCCP) — a complex agreement that requires OWNER to dedicate portions
of the Property upon completion of certain phases of development. OWNER is
also required to dedicate large portions of the Property pursuant to the
development approvals.
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E. OWNER was required, by the development approvals, to make
costly infrastructure improvements far in excess of those necessary to mitigate the
impacts, or serve the needs, of the development. OWNER was required to make,
and has made, these extraordinary improvements prior to development of the
Property.
F. OWNER has acquired a fully vested right to develop the Property in
accordance with the development approvals because of the extraordinary
expenditures for public and private improvements made in reliance on the
development approvals, the dedications made in reliance on the development
approvals and the County Development Agreement.
G. CITY and OWNER intend for this Agreement to fully conform to the
development approvals and to fully facilitate full implementation of the Project, as
conditioned by the County and Coastal Commission. To the maximum extent
permitted by law, this Agreement is intended to be the functional equivalent of, or
a supplement to, the County Development Agreement in light of the CITY's
intention to allow County to retain all municipal land use authority over the
Property until such time as the discrete portions of the Project are complete.
H. City is desirous of annexing the Property but recognizes that the
development approvals for the Property involve complex and interrelated planning
documents. CITY does not have sufficient staff to timely process the permits .
required for implementation of the Project in compliance with all the development
approvals. Moreover, the development approvals and land use plan involve the
dedication of valuable habitat and open space within and outside of the
boundaries of the Property and City does not have the personnel and expertise to
ensure that dedications occur as planned.
I. CITY and OWNER have discussed the process and terms and
conditions of annexing the Property to CITY, and each has determined that it is in
their respective best interests to pursue that annexation pursuant to the terms of
this Agreement and the development approvals. In particular CITY desires
assurances that OWNER will support eventual annexation of all of the Property to
CITY, in order to:
(a) Facilitate the timely and orderly integration of the Property into
the CITY consistent with the CITY's sphere of influence;
(b) Facilitate planning and provision of municipal services to the
Property without any adverse fiscal impact on the CITY or the
ultimate owners of the property; and
(c) Ensure consistency with and implement the CITY's General Plan.
At the same time, OWNER desires to obtain assurances from CITY that,
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subsequent to annexation:
(a) OWNER will be able to develop the Property to the full extent
permitted by the development approvals granted by the County and
the Coastal Commission subject to conditions of approval imposed
by the Coastal Commission and the County as well as consistency
with the City's General Plan;
(b) Development will be processed by the County in accordance with
a uniform set of land use and building rules, regulations and
requirements, as established by the development approvals given by
the County for the Property prior to its annexation; and
(c) Development of the Property will be subject only to costs, fees,
processing requirements, conditions or exactions that would have
been imposed had the Property not been annexed to CITY.
J. In addition to the authority at common law for annexation
agreements, Government Code Sections 65864 et seq. ( "Development
Agreement Law "), and Chapter 15.45 of the Newport Beach Municipal Code
authorize CITY to enter into binding development agreements with persons having
a legal or equitable interest in real property. This Agreement is consistent with the
public policy that supports development agreements in that it strengthens the
public planning process, facilitates implementation of comprehensive planning,
provides significant public benefits, and reduces the economic costs of
development.
K. The City Council has found that this Agreement is in the best public
interests of the CITY and its residents, that adopting this Agreement constitutes a
present exercise of its police power, and that this Agreement is consistent with the
City's General Plan and the Newport Beach Municipal Code and Charter.
L. This Agreement is not intended to, and shall not be construed, to
impair the rights and obligations of OWNER, or other involved parties under and
pursuant to the Newport Coast Local Coastal Program, Second Amendment, and
the Litigation Settlement Agreement entered into June 27, 1997, by and among
OWNER, the Friends of the Irvine Coast, Laguna Greenbelt, Inc., and Stop
Polluting Our Newport.
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COVENANTS
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having
specific meanings, as defined below. These specially defined terms are
distinguished by having the initial letter capitalized, or all letters capitalized, when
used in the Agreement. The defined terms include the following:
1.1.1 "Agreement' means this Annexation and Development Agreement.
1. 1.2 "Coastal Zone Area" means that portion of the Property that is
subject to the provisions of the California Coastal Act, Public Resources
Code section 30000 et seq.
1.1.3 "C1TY" means the City of Newport Beach, a California charter city
1.1.4 "County' means the County of Orange, a political subdivision of the
State of California.
1.1.5 "Development' whether or not capitalized means the improvement of
the Property for the purposes of completing the structures, improvements
and facilities comprising the Project 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 buildings
and structures; and the installation of landscaping and park facilities and
improvements. For purposes of this Agreement, however, "Development"
does not include any remodeling, reconstruction, or other building or
grading activity by any person subsequent-to the termination of this
Agreement as provided in and pursuant to Section 2.3.3 below.
1.1.6 "Development Approvals" means all permits, licenses, consents,
rights and privileges, and other actions subject to approval or issuance by
County or CITY in connection with Development of the Property, including
but not limited to:
(a) General plans and general plan amendments adopted by the County
or the CITY;
(b) Specific plans and specific plan amendments;
(c) Zoning and rezoning adopted by the County or the CITY;
(d) Tentative and final subdivision and parcel maps;
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(e) Variances, conditional use permits, master plans, public use permits
and plot plans; and
(f) Grading and building permits.
1.1.7 "Development Plan" means the plan for Development of the
Property, including the planning and zoning standards, regulations, and
criteria for the Development of the Property that are contained in and
consistent with the Development Approvals. The components of the
Development Plan are more fully described in Exhibit "D."
1.1.8 "Effective Date" means the date this Agreement is approved by the
CITY and effective pursuant to the CITY Charter as shown in the first
paragraph.
1.1.9 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies governing Development and use of
land applicable to the Property pursuant to this Agreement, including, the
permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed buildings, the
provisions for reservation or dedication of land for public purposes, and the
design, improvement and construction standards and specifications
applicable to the Development of the Property. "Land Use Regulations"
does not include any CITY ordinance, resolution, code, rule, regulation or
official policy, governing:
(a) The conduct of businesses, professions, and occupations;
(b) Taxes and assessments except as provided in Section 4.9;
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public
property; and
(e) The exercise of the power of eminent domain
1.1.10 "OWNER" means individually and collectively The Irvine Company
and Irvine Community Development Company, and when appropriate in
context, their respective successors in interest to all or any part of the
Property.
1.1.11 "Mortgagee" means a mortgagee of a mortgage, a beneficiary
under a deed of trust or any other security - device, a lender and their
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successors and assigns.
1.1.12 "Project' means the Development of the Property consistent with
the Development Plan.
1.1.13 "Property' means the real property described in Exhibit "A" and
shown on Exhibit "B" to this Agreement.
1.1.14 "Subsequent Development Approvals" means all Development
Approvals subsequent to the Effective Date in connection with
Development of the Property.
1.1.15 "Subsequent Land Use Regulations" means any Land Use
Regulations adopted and effective after the Effective Date of this
Agreement, other than the Development Plan.
1.1.16 "Term" shall mean the period of time from the Effective Date until
the termination of this Agreement as provided in subsection 10.1, or earlier
termination as provided in Section 7.
1.2 Exhibits. The following documents are attached to, and by this
reference made a part of, this Agreement:
Exhibit "A" Legal Description of the Property.
Exhibit "B" Map showing Property and its
location.
Exhibit "C" Planning and Environmental History.
Exhibit "D" List of County Development Approvals.
Exhibit "E" Mitigation Measures.
Exhibit "F" Affordable Housing Implementation Plan.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. This Agreement shall be binding on
the CITY from and following the Effective Date. However, CITY shall
have no right or duty with respect to the Property until annexation of
the Property to CITY and CITY has fully complied with the conditions
to OWNER'S support for annexation. These conditions include the
execution of a cooperative agreement that allows the County to
retain all municipal land use jurisdiction and all responsibility for
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processing Development Approvals.
2.2 Assignment by OWNER.
2.2.1 Right to Assign. OWNER shall have the right to sell,
transfer or assign the Property in whole or in part (provided that no
transfer violates the Subdivision Map Act, Government Code Section
66410, et seq.), and in so doing to assign, at any time during the
term of this Agreement and to any person, partnership, joint venture,
firm or corporation, its rights and obligations under this Agreement
as the same may relate to the portion of the Property being
transferred.
2.2.2 Release of Transferring Owner. Upon the sale,
transfer or assignment of all or a portion of the Property, the
transferring OWNER shall be released of all obligations under this
Agreement that relate to the portion of the Property being
transferred; provided that the obligations under Sections 4 and 5 of
this Agreement that relate to the portion of the Property being
transferred are assumed by and enforceable against the transferee.
2.2.3 Termination of Agreement With Respect to Individual
Residential Lots On Sale to Public and Completion of Construction.
Notwithstanding any other provisions of this Agreement, the
obligations of OWNER pursuant to this Agreement shall terminate
with respect to any residential lot and such residential lot shall be
released and no longer be subject to this Agreement upon
satisfaction of both of the following conditions:
(a) The residential lot has. been finally subdivided and
individually (and not in "bulk ") sold or leased (for a period
longer than one year) to a member of the public or other
ultimate user; and,
(b) A certificate of occupancy has been issued or a final
building inspection has been conducted and approved for the
primary dwelling unit on the residential lot.
2.2.4 Termination of Agreement nth Respect to Non -
Residential Parcels. Notwithstanding any other provisions of this
Agreement, the obligations of Owner pursuant to this Agreement
shall terminate with respect to any non - residential parcel and the
non - residential parcel shall be released and no longer be subject to
this Agreement at such time as the parcel has been fully improved
and occupied consistent with the allowed intensity of development
under the Development Plan.
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•
3. PRE - ANNEXATION OBLIGATIONS AND COMMITMENTS.
3.1 Annexation of Property. Consistent with and subject to the terms
and conditions of this Agreement and specifically this Subsection, CITY
may, in one annexation proceeding or several annexation proceedings,
annex the Property under such conditions as are imposed by or through the
Orange County Local Agency Formation Commission and reasonably
acceptable to OWNER. Conditions shall be deemed to be reasonably
acceptable to OWNER unless the conditions impair or interfere with
OWNER's rights to develop or materially increase the cost of development.
OWNER's consent to annexation of all or a portion of the Property is
contingent on, and OWNER has reasonably relied on, CITY's commitments
in Section 3 and 4 of this Agreement.
3.1.1 Annexation Before Project Completion. OWNER will support
CITY's annexation of the Property in its entirety before project
completion, provided that the Property may be fully developed
to the full extent permitted in the Development Plan and as
evidenced by satisfaction of each of the following conditions:
(a) The Legislature has approved, and the Governor has
signed, legislation that clarifies provisions of the Coastal Act
such that annexation of the Property (1) will not alter or affect
the validity and enforceability of the Newport Coast Local
Coastal Program, Second Amendment, including any
amendments applicable to the Property and any related
coastal development permits; or (ii) deprive the County of
authority to issue coastal development permits pursuant to
the terms of this Agreement, any ordinance, joint powers
agreement, or other mechanism that confers municipal land
use authority to the County after annexation and the Newport
Coast Local Coastal Program, Second Amendment or any
subsequent amendments that are certified by the California
Coastal Commission;
(b) The City adopts, and maintains during the term of this
Agreement, general plan and zoning designations for the
Property that are essentially identical to the Newport Coast
Local Coastal Program, general plan and zoning designations
adopted by the County and in effect as of the Effective Date.
(c) The City authorizes County to retain all municipal land use
authority (including the issuance of building and grading
permits) to the County pursuant to a cooperative agreement
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until such time as development is complete with each
Planning Area or until OWNER consents, in writing, to an
assumption of municipal land use authority over all or a
portion of the Property.
3.1.2 Ultimate Annexation. OWNER will fully support CITY
annexation of all or a portion of the Property without satisfying
the provisions of Section 3.1.1, provided that all lots and /or
parcels within the area to be annexed have received building
permits for construction of structure(s) consistent with the
Development Approvals, a certificate of occupancy has been
issued or a final building inspection has been conducted and
annexation will not interfere with, affect, or impair the
Development Approvals or OWNER's ability to complete the
Project.
3.2 Environmental Impacts and Mitigation. The parties acknowledge
that Environmental Impact Reports, environmental documents and functional
equivalents ( "Environmental Documents - described in Exhibit C) have been
prepared and certified for the Project by County and/or approved by the Coastal
Commission. CITY has reviewed and evaluated the Environmental Documents to
determine if the impacts of the Project, as represented by this Agreement, the
Development Plan, and the CITY approvals, were fully analyzed and evaluated.
CITY has also reviewed the Environmental Documents and all relevant existing
facts and circumstances to determine if any of the events that require preparation
of a subsequent or supplemental environmental document have occurred. CITY
has determined based on that review that none of the events described in Section
21166 of the Public Resources Code or Sections 15162 or 15163 of the CEQA
Guidelines have occurred. CITY has specifically determined that the detachment
of the Property from County and the annexation of the Property to CITY do not
require preparation of any subsequent or supplemental environmental impact
report for the Project because the reorganization will not increase, decrease, or
modify any Development or dedication when compared to the entitlement prior to
annexation. CITY has also determined that, subject to incorporation of the
mitigation measures identified in Exhibit "E" and except as specifically provided in
this Agreement, there is no current or anticipated deficiency in any municipal
service or facility (including planned community and neighborhood parks, drainage
and flood control facilities, circulation system infrastructure, and public safety
services) resulting from Development of the Project. The mitigation measures
identified in Exhibit "E" are incorporated by reference into the Development Plan.
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3.3 Additional Pre - Annexation Understandings. As a further
inducement to OWNER to support the annexation of the Property to CITY, CITY
agrees that, as of the date of its approval of this Agreement, all County affordable
housing requirements associated with development of the Property have been
satisfied. CITY also acknowledges that the OWNER has a vested right to proceed
with development pursuant to the County Agreement and that no additional
affordable housing requirements shall be imposed on development of the Property
pursuant to the CITY's General Plan or otherwise. The Affordable Housing
Implementation Plans approved by the County, describing the manner in which
affordable housing requirements have been satisfied for development of the
Property, are attached to this Agreement as Exhibit "F." Fees payable upon
issuance of any development permit (e.g., building permit or occupancy permit)
will be paid to the issuer of the permit in accordance with County Codes, fee
schedules and requirements for original improvements. Following annexation,
fees shall continue to be paid to the issuer in accordance with the codes and
requirements for additions, remodels and rebuilds of the jurisdiction with land use
authority. CITY agrees that the Project is in full compliance with, and shall not be
further subject to, CITY's Traffic Phasing Ordinance following annexation of the
Property, CITY having determined through this Agreement that:
a. Development of the Property will not cause or make worse any
unsatisfactory level of service at any primary intersection as defined in
the Traffic Phasing Ordinance;
Development of the Property has been considered a committed project
which has been incorporated into the CITY's traffic model and Circulation
Element traffic projections and all resulting levels of service have been
accepted in the Circulation Element; and
c. There is an overall reduction in peak hour ICU at impacted intersections
having unsatisfactory levels of service taking into account the circulation
improvements constructed or facilitated by OWNER pursuant to
conditions imposed for development of the Project, including
construction of Newport Coast Drive, extension of San Joaquin Hills
Road, widening of Pacific Coast Highway, and facilitation of construction
of the San Joaquin Hills Transportation Corridor.
3.4 Cooperation. Subject to and in reliance upon the representations
and covenants of the City, OWNER will support the annexation of the Property by
the CITY.
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3.5 Termination of Annexation Proceedings. This Agreement may be
terminated by OWNER in the event that CITY fails to comply with the
requirements of Paragraph 3.1 above with respect to any proposed annexation of
the Property to CITY, or if conditions imposed by or through the Local Agency
Formation Commission on the annexation are determined by either party to
conflict materially with its rights and obligations under any provision of this
Agreement.
4. DEVELOPMENT OF THE PROPERTY AFTER ANNEXATION.
Following annexation of the Property by CITY, the following provisions shall apply:
4.1 Rights to Develop. Subject to the terms of this Agreement,
following annexation of the Property OWNER shall have a vested right to develop
the Property in accordance with, and to the extent of, the Development Plan.
Pending and subsequent to annexation of the Property to CITY, OWNER shall
have the right to seek approvals from County for the Development of the Property,
and to develop the Property, consistent with the Development Plan. CITY
expressly agrees to take no action that would or could (a) interfere with or impair
the Development Approvals; (b) interfere with or impair the OWNER's ability to
complete the project; (c) materially increase the cost of completing the project
without the OWNER's express written consent; or (d) cause the transfer of any
permitting or development review authority pursuant to State or local law,
including Government Code section 30519, from the County to the City or any
other agency until such time as that portion of the Property affected by the transfer
is fully developed pursuant to the Development Plan and provided the transfer
would not interfere or impair OWNER's ability to develop any other portion of this
Property.
4.2 Effect of Agreement on Land Use Regulations. The rules,
regulations and official policies governing permitted uses of the Property, the
density and intensity of use of the Property, the maximum height and size of
proposed buildings, and the design, improvement and construction standards and
specifications applicable to Development of the Property, shall be those contained
in the Development Plan (and those Land Use Regulations not inconsistent with
the Development Plan) and that were in full force and effect on or before June 26,
2001 except as may be otherwise provided by this Agreement,.
4.3 Timing of Development. The Parties acknowledge that OWNER
cannot at this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors that are not within the
control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465,
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that the failure of the parties therein to provide for the timing of Development
resulted in a later adopted initiative restricting the timing of Development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by
acknowledging and providing that OWNER shall have the right to develop the
Property in such order and at such rate and at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Nothing in this
section is intended to alter the standard time limits of any permits issued to
OWNER pursuant to the Development Approvals.
4.4 Changes and Amendments. The parties acknowledge that
Development of the Project may require Subsequent Development Approvals.
OWNER may determine that changes in the existing Development Approvals or
Development Plan are appropriate and desirable. In the event OWNER finds that
such a change is appropriate or desirable, OWNER may apply in writing for an
amendment to Development Approvals or the Development Plan to effect such
change and the application shall be processed for approval by County. CITY shall
expressly permit and authorize modifications of any proposed changes in the
existing Development Approvals or Development Plan unless the proposed
modifications:
(a) Would materially reduce the amount of open space intended for
dedication to the public, or
(b) Would materially alter the cost of providing municipal services to the
Property subsequent to annexation, or
(c) Would materially reduce the amount of property tax or other revenue
available to the CITY after annexation, or
(d) Would materially increase the density and /or intensity of development
allowed in the Project as a whole, resulting in unacceptable intersection
impacts outside of the Project that cannot be mitigated pursuant to the
CITY's Traffic Phasing Ordinance.
Any change in the Development Approvals or Development Plan made in
accordance with the procedures required by the Land Use Regulations and with
the written consent of the OWNER shall be conclusively deemed to be consistent
with this Agreement, without any further need for any amendment to this
Agreement or any of its Exhibits.
4.5 Continuation of Irvine Coast Development Agreement. CITY
acknowledges and agrees that the County Agreement entered into between
OWNER and County shall continue to govern the rights and obligations of
OWNER and County with respect to the Coastal Zone Area preceding annexation,
and following annexation to the maximum extent permitted by the cooperative
agreement and State law. If for any reason this Agreement is found to be invalid
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or unenforceable or OWNER's ability to proceed with the Development Plan is
impaired or delayed for any reason, then the Coastal Zone Area shall be and
remain subject to the terms and protections of the County Agreement.
4.6 Monitoring of Project. City shall, subsequent to annexation of all
or a portion of the Property, have the right, pursuant to a standard right of entry
permit issued by OWNER, to enter the Property for the limited purpose of ensuring
that development of the Property proceeds in substantial compliance with the
Development Approvals and all conditions to those approvals that are material to
the issue of water quality and aesthetics. OWNER shall designate a Project
Manager to provide CITY with access to all grading and building plans and
specifications on or before the date they are submitted to the County. CITY shall
conduct all monitoring activities in a manner that does not unduly burden
OWNER's rights to develop the Property in compliance with the Development
Approvals. Any report prepared pursuant to monitoring shall be lodged with the
City Manager and CITY shall provide OWNER with the opportunity to review and
comment on the report prior to submittal to the City Manager. The monitoring
authorized by this Subsection is not intended, and shall not be construed, to
create any formal procedure, right or process on the part of the CITY to review or
modify the Development of the Property. City shall make available to any person,
upon request, any report or document lodged with the City Manager that is
prepared by any professional retained by the CITY to conduct the monitoring
authorized by this Section.
5. FINANCING OF PUBLIC IMPROVEMENTS AFTER ANNEXATION.
5.1 Formation of Financing Districts. If so requested by OWNER,
CITY will cooperate in the formation or modification of any special assessment
district, community facilities district or alternate financing mechanism ("CFD") to
pay for the construction, acquisition, and /or maintenance and operation of public
and /or quasi - public infrastructure, lighting, landscape, or any other public facilities
required as part of the Development Approvals. CITY may, pursuant to the
cooperative agreement, allow the County to retain the authority to administer, form
or modify any new or existing assessment district. However, CITY shall have no
obligation to authorize or to cause any such CFD to issue debt or sell bonds prior
to the completion of the annexation of the Property to CITY. In the event that
such a CFD is formed and sells bonds to pay for the construction or acquisition of
public or quasi - public facilities which were provided, in whole or in part, by
OWNER, OWNER may be reimbursed from such bonds to the extent that
OWNER has spent funds or dedicated land for the establishment of such facilities
and creation of the CFD. While it is acknowledged that this Agreement cannot
require CITY or the City Council to form any such CFD or to issue and sell bonds,
CITY represents that it can do so and agrees that it shall not refuse OWNER's
request to form such a CFD and to issue and sell bonds following completion of
annexation of the Property to CITY, except for good and reasonable cause. In no
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event shall CITY have any obligation or duty to refinance, repay, reduce the
amount of, or assume any financial relationship to, any bonds or other debt issued
by any CFD prior to annexation, but City may assume such obligation pursuant to
agreement.
5.2 OWNER's Right to Construct Facilities. Subject to CITY or
County review and approval of plans and specifications, as appropriate, the
OWNER may elect, and reserves the right, to construct, or cause the construction
of, any public or quasi - public facility for which the CITY intends to collect a fee,
and to dedicate the completed facility to the CITY, in lieu of payment of the fee.
6. REVIEW FOR COMPLIANCE FOLLOWING ANNEXATION
6.1 Periodic Review. Following annexation of all or any portion of the
Property, the City Council shall review this Agreement annually, on or before the
anniversary of the Effective Date, in order to ascertain the good faith compliance
by OWNER with the terms of the Agreement. As part of that review, OWNER
shall submit an annual monitoring review statement describing its actions in
compliance with this Agreement, in a form acceptable to the City Manager, within
30 days after written notice from the City Manager requesting that statement. The
statement shall be accompanied by an annual review and administration fee
sufficient to defray the estimated costs of review and administration of the
Agreement during the succeeding year. The amount of the annual review and
administration fee shall be set annually by resolution of the City Council.
6.2 Special Review. The City Council may order a special review of
compliance with this Agreement at any time at CITY's sole cost. OWNER shall
cooperate with the CITY in the conduct of such special reviews.
6.3 Procedure. Each party shall have, at any periodic or special review,
a reasonable opportunity to assert matters which it believes have not been
undertaken in accordance with the Agreement, to explain the basis for such
assertion, and to receive from the other party a justification of its position on such
matters. If either Party concludes, on the basis of any review, that the other Party
has not complied in good faith with the terms of the Agreement, then such Party
may issue a written "Notice of Non - Compliance" specifying the grounds and all
facts demonstrating such non - compliance. The Party receiving a Notice of
Non - Compliance shall have thirty (30) days to respond in writing to the Notice. If
the response to the Notice of Non - Compliance has not been received in the
offices of the party alleging the default within the prescribed time period, the
Notice of Non - Compliance shall be conclusively presumed to be valid. If a Notice
of Non - Compliance is contested, the Parties shall have up to sixty (60) days to
arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice.
In the event that the Parties are not able to arrive at a mutually acceptable
resolution of the matter(s) by the end of the sixty (60) day period, the Party
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alleging the non - compliance may pursue the remedies provided in Section 7.
6.4 Certificate of Agreement Compliance. If, at the conclusion of a
periodic or special review, OWNER is found to be in compliance with this
Agreement, CITY shall, upon request by OWNER, issue a Certificate of
Agreement Compliance ( "Certificate ") to OWNER stating that after the most recent
Periodic or Special Review and based upon the information known or made
known to the City Manager and CITY Council that (1) this Agreement remains in
effect and (2) OWNER is not in default. The Certificate shall be in recordable
form, shall contain information necessary to communicate constructive record
notice of the finding of compliance, shall state whether the Certificate is issued
after a Periodic or Special Review and shall state the anticipated date of
commencement of the next Periodic Review. OWNER may record the Certificate
with the County Recorder. Additionally, OWNER may at any time request from
the CITY a Certificate stating, in addition to the foregoing, which obligations under
this Agreement have been fully satisfied with respect to the Property, or any lot or
parcel within the Property.
7. DEFAULT AND REMEDIES.
7.1 Specific Performance Available. The parties acknowledge that
money damages and remedies at law generally are inadequate and specific
performance is a particularly appropriate remedy for the enforcement of this
Agreement and should be available to OWNER and CITY because due to the
size, nature and scope of the Project, it may not be practical or possible to restore
the Property to its natural condition once implementation of this Agreement has
begun. After such implementation, OWNER and /or CITY may be foreclosed from
other choices it may have had to utilize or condition the Property or portions
hereof. OWNER 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, such that it would be extremely difficult to determine the sum of
money which would adequately compensate OWNER and /or CITY for such
efforts. Except as provided in Section 7.2 below, neither OWNER nor CITY shall
be entitled to any money damages, including attorney fees, from the other party
by reason of any default under this Agreement.
7.2 Restitution of Improper Development Fees. In the event any
Development fees or taxes are imposed on Development of the Property other
than those authorized pursuant to this Agreement, OWNER shall be entitled to
recover from CITY restitution of all such improperly assessed fees or taxes,
together with interest thereon at the maximum allowable non - usurious rate from
the date such sums were paid to CITY to the date of restitution.
Page 16 of 23
0 0
7.3 Termination of Agreement.
7.3.1 Termination of Agreement for Default of OWNER. CITY in its
discretion may terminate this Agreement as to any non - annexed portions of
the Property for any failure of OWNER to perform any material duty or
obligation of OWNER hereunder or to comply in good faith with the terms of
this Agreement related to its annexation (hereinafter referred to as
"default'); provided, however, CITY may terminate this Agreement pursuant
to this Section only after following the procedure set forth in Section 6.3
and thereafter providing written notice to OWNER of the default setting
forth the nature of the default and the actions, if any, required by OWNER
to cure such default and, where the default can be cured, OWNER has
failed to take such actions and cure such default within 30 days after the
effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.2 Termination of Agreement. for Default of CITY. OWNER in its
discretion may terminate this Agreement by written notice to CITY after the
default by CITY in the performance of a material term of this Agreement
and only after following the procedure set forth in Section 6.3 and thereafter
providing written notice by OWNER thereof to CITY and, where the default
can be cured, the failure of CITY to cure such default within 30 days after
the effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.3 Rights and Duties Following Termination. Upon the termination of
this Agreement, no party shall have any further right or obligation
hereunder except with respect to (i) any obligations to have been
performed prior to said termination, (ii) any default in the performance of
the provisions of this Agreement which has occurred prior to said
termination, or (iii) obligations that have vested through the annexation of
the Property, or any annexed portion thereof.
7.4 OWNER's Right To Terminate Upon Specified Events.
Notwithstanding any other provisions of this Agreement to the contrary, OWNER
retains the right to terminate this Agreement (but not the provisions of Section 3)
upon thirty (30) days written notice to CITY in the event that OWNER reasonably
determines that continued Development of the Project consistent with the
Development Plan has become economically infeasible due to changed market
conditions, increased Development costs, burdens imposed as conditions to
future discretionary approvals of the Project consistent with this Agreement, or
Page 17 of 23
r�
l�
similar factors.
8. THIRD PARTY LITIGATION.
CITY shall promptly notify OWNER of any claim, action or proceeding filed and
served against CITY to challenge, set aside, void, annul, limit or restrict the
approval and continued implementation and enforcement of this Agreement.
CITY and OWNER agree to cooperate in the defense of such action(s).
9. MORTGAGEE PROTECTION.
The parties agree that this Agreement shall not prevent or limit OWNER, in any
manner, at OWNER's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Property. CITY
acknowledges that the lenders providing such financing may require certain
Agreement interpretations and modifications and agrees upon request, from time
to time, to meet with OWNER and representatives of such lenders to negotiate in
good faith any such request for interpretation or modification. Subject to
compliance with applicable laws, CITY will not unreasonably withhold its consent
to any such requested interpretation or modification provided such interpretation
or modification is consistent with the intent and purposes of this Agreement. Any
Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by
law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, has submitted a request
in writing to the CITY in the manner specified herein for giving notices,
shall be entitled to receive written notification from CITY of any default by
OWNER in the performance of OWNER's obligations under this
Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of
any notice of default given to OWNER under the terms of this Agreement,
CITY shall provide a copy of that notice to the Mortgagee within ten (10)
days of sending the notice of default to OWNER. The mortgagee shall
have the right, but not the obligation, to cure the default during the
remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part
Page 18 of 23
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed
in lieu of such foreclosure, shall take the Property, or part thereof, subject
to the terms of this Agreement. Notwithstanding any other provision of
this Agreement to the contrary, no Mortgagee shall have an obligation or
duty under this Agreement to perform any of OWNER's obligations or
other affirmative covenants of OWNER hereunder, or to guarantee such
performance; except that (i) to the extent that any covenant to be
performed by OWNER is a condition precedent to the performance of a
covenant by CITY, the performance thereof shall continue to be a
condition precedent to CITY's performance hereunder, and (ii) in the
event any Mortgagee seeks to develop or use any portion of the Property
acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu
of foreclosure, such Mortgagee shall strictly comply with all of the terms,
conditions and requirements of this Agreement and the Development
Plan applicable to the Property or such part thereof so acquired by the
Mortgagee.
10. MISCELLANEOUS PROVISIONS.
10.1 Term of Agreement. Following completion of the annexation of the
Property, or any portion thereof, to the CITY within the preceding time periods,
this Agreement shall continue in full force and effect with respect to such annexed
land for a period of fifteen (15) years from the effective date of that annexation.
10.2 Recordation of Agreement. This Agreement shall be recorded with
the County Recorder by the City Clerk upon annexation of the Property to CITY
within the period required by Section 65868.5 of the Government Code. Similarly,
amendments approved by the parties, and any cancellation, shall also be
recorded.
10.3 Entire Agreement. This Agreement sets forth and contains the
entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or
agreements that are not contained or expressly referred to herein. No testimony
or evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the
terms or conditions of this Agreement.
10.4 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, then this
Agreement shall terminate in its entirety, unless the parties otherwise agree in
writing, which agreement shall not be unreasonably withheld.
Page 19 of 23
• 0
10.5 Interpretation and Governing Law. This Agreement and any
dispute arising hereunder shall be governed and interpreted in accordance with
the laws of the State of California. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and
purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party or in favor of CITY shall
not be employed in interpreting this Agreement, all parties having been
represented by counsel in the negotiation and preparation hereof.
10.6 Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect any construction or
interpretation of this Agreement.
10.7 Singular and Plural. As used herein, the singular of any word
includes the plural.
10.8 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
10.9 Waiver. Failure of a party to insist upon the strict performance of
any of the provisions of this Agreement by the other party, or the failure by a party
to exercise its rights upon the default of the other party, shall not constitute a
waiver of such party's right to insist and demand strict compliance by the other
party with the terms of this Agreement thereafter.
10.10 Third Party Beneficiaries. This Agreement is made and entered
into for the sole protection and benefit for the parties and their successors and
assigns. No other person shall have any right of action based upon any provision
of this Agreement; provided, however, that the fee owners of any non - residential
parcels in the annexation area may elect to be covered by this Agreement.
10.11 Force Majeure. 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 by earthquakes, other Acts of God, fires, wars, riots or
similar hostilities, strikes and other labor difficulties beyond the party's control
(including the party's employment force), government regulations, court actions
(such as restraining orders or injunctions), or other causes beyond the party's
control. If any such events shall occur, the term of this Agreement and the time
for performance shall be extended for the duration of each such event, provided
that the term of this Agreement shall not be extended under any circumstances for
more than five (5) years.
Page 20 of 23
0
9
10.12 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent
performance by the party benefited thereby of the covenants to be performed
hereunder by such benefited party.
10.13 Counterparts. This Agreement maybe executed by the parties in
counterparts, which counterparts shall be construed together and have the same
effect as if all of the parties had executed the same instrument.
10.14 Jurisdiction and Venue. Any action at law or in equity arising
under this Agreement or brought by any party hereto 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,
and the parties hereto waive all provisions of law providing for the filing, removal
or change of venue to any other court.
10.15 Project as a Private Undertaking. It is specifically understood and
agreed by and between the parties hereto that the Development of the Project is a
private Development, that neither party is acting as the agent of the other in any
respect hereunder, and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this Agreement. No
partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and OWNER is that of a
government entity regulating the Development of private property and the owner
of such property.
10.16 Further Actions and Instruments. Each of the parties shall
cooperate with and provide reasonable assistance to the other to the extent
contemplated hereunder in the performance of all obligations under this
Agreement and the satisfaction of the conditions. of this Agreement. Upon the
request of either party at any time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such
required instruments and writings and take any actions as may be reasonably
necessary under the terms of this Agreement to carry out the intent and to fulfill
the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement. Subject to Section 3 above, OWNER will
cooperate with the CITY in the processing of the annexation of the Project through
the Local Agency Formation Commission including advocating the application of
the existing AB 8 Master Property Tax Transfer Agreement. OWNER
acknowledges the importance of maintaining the fiscal benefits of the Project
assuming that the current method of allocating sales tax revenues (i.e., point of
sale) is utilized. OWNER will consult with the CITY regarding legislative proposals
to adjust this procedure with the goal of supporting CITY efforts to maintain the
fiscal benefits of the Project through the legislative process.
Page 21 of 23
0 0
10.17 Eminent Domain. No provision of this Agreement shall be
construed to limit or restrict the exercise by CITY of its power of eminent domain.
10.18 Amendments in Writing /Cooperation. This Agreement maybe
amended only by written consent of both parties specifically approving the
amendment and in accordance with the Government Code provisions for the
amendment of Development Agreements. The parties shall cooperate in good
faith with respect to any amendment proposed in order to clarify the intent and
application of this Agreement, and shall treat any such proposal on its own merits,
and not as a basis for the introduction of unrelated matters.
10.19 Authority to Execute. The person or persons executing this
Agreement on behalf of OWNER warrants and represents that he/they have the
authority to execute this Agreement on behalf of his/their corporation, partnership
or business entity and warrants and represents that he /they has /have the authority
to bind OWNER to the performance of its obligations hereunder.
10.20 Notice. All notices, demands, requests or approvals to be given
under this Agreement shall be given in writing and shall be deemed served when
delivered personally or on the third business day after deposit in the United States
mail, postage prepaid, first class mail, addressed as follows:
All notices, demands, requests or approvals to CITY shall be addressed to
CITY at:
City of Newport Beach
City Manager's Office
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92658 -8915
All notices, demands, requests or approvals to OWNER shall be addressed
to OWNER at:
Vice President of Entitlements
The Irvine Company
550 Newport Center Drive
Newport Beach, California 92660
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
Page 22 of 23
CITY: CITY OF NEWPORT BEACH
By --
TOD RIDGEW Mayor Pro em
ATTEST:
By,, 1 U B-� ° 0 . / V f,,1t X L,
LaVonne Harkless, City Clerk
APPROV D AS TO FORM:
By
obert Burnham, City Attorney
OWNER: THE IRVINE CO PANY
By
Title Joseph D. Davis, Executive Vice President
By
Title Tim Paone, Vice President Entitlement
OWNER: IRVINE COMMUNITY
DEVELOPMENT COMPANY
By
Title D. Davis, President and CEO
�W� --,.r�
Title Daniel C. Hedigan, 4sistan\ Secretary
Page 23 of 23
0
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
!J I
County of ss.
lJ
On • V before me
Date
personally appeared\ �c
iit� cer (e.g., "J a Doe, Noary Pubti
personally known to me
❑ proved to me on the basis of satisfactory
evidence
2i .2 M +� to be the perso s) whose namE is/ rr
CAW itt7� subscribed to the within instr ent and
no ON _ acknowledged to me that hels hey xecuted
�npetJwl�Y the sam in his /he hei author
MrGsrfn ltift•�= capacity ie and that y his /her h
signature s) n the instrument the perso (s
the entity upon behalf of which the person ss
acted, executed the instrument.
ESS my hand and fficial seal.
Place Notary Seal Above Sigfoat& M No ry Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: AMJ -6r,a a ^ a
Document Date: O ' 0 Number of Pages: 3
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
• Individual
• Corporate Officer— Title(s):
■
r
Partner — ❑ Limited ❑ General
Attorney in Fact
Trustee
• Guardian or Conservator
• Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
01999 Na1iw Ndary Abaoclaton •8350 Do We Ave., P.O. Box 2M2 • ChatlwoM, CA 91313�242 • w nallomi mtaryorg P". N9, 5907 RemEer. Cell Td6Frea 1.6 76.6827
\,i-
0 0
State of California)
)8S.
County of Orange )
On November 8, 2001 before me, W. S. Bettini , Notary Public, personally
appeared Joseph D. Davis and Daniel C. Hedigan , personally known to me 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 signatures
on the instrument the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
my hand and official seal.
�r'A�
• •
State of California)
) SS.
County of Orange )
On November 8, 2001 before me, W. S. Bettini . Notary Public, personally
appeared Joseph D. Davis and Tim Paone , personally known to me 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 signatures on
the instrument the persons, or the entity upon behalf of which the persons acted, executed
the instrument.
WUNESS my hand and official seal.
NotcryPubk-ft-Ma *9
s.Rj ormw CDMv r /�
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
BLOCKS: 5151, 5152, 5251
5252, 5253, 5351
5352
MODULES: VARIOUS
BEING THOSE PORTIONS OF BLOCKS 91, 95 -98, 128 -134, 161 -164 OF IRVINE'S
SUBDIVISION AS SHOWN ON A MAP THEREOF FILED IN BOOK 1, PAGE 88 OF
MISCELLANEOUS RECORD MAPS AND PARCEL 2 AND A PORTION OF PARCEL 1 PER
CORPORATION GRANT DEED BOOK 13439, PAGE 94 -132, RECORDED DECEMBER 19,
1979, IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT AN ANGLE POINT IN THE EXISTING.CITY OF NEWPORT BEACH BOUNDARY
AS ESTABLISHED BY REORGANIZATION NO. R097 -35, "BONITA CANYON. ANNEXATION TO
THE CITY OF NEWPORT BEACH AND DETACHMENT OF, THE -SAME TERRITORY FROM THE
CITY OF IRVINE", SAID ANGLE POINT BEING THE SOUTHEASTERLY TEFMINUS OF THAT
CERTAIN COURSE DESCRIBED AS "SOUTH 11058'31" EAST 11.29 FEET" IN SAID
REORGANIZATION NO. R097 -35, SAID POINT ALSO BEING DISTANT NORTH '26242'33"
EAST 3071.87 FEET FROM ORANGE COUNTY SU3VEYOR,S HORIZONTAL CONTROL.STATION
GPS NO. 6247, HAVING A COORDINATE V__LUE (U.S. SURVEY FOOT) OF NORTH
2173287.386 AND EAST 6074018.521, BASED UPON THE CALIFORNIA COORDINATE
SYSTEM (CCS83), ZONE VI. 1983 NAD (1991.35 EPOCH O.C.S. GPS ADJUSTMENT) AS
SAID GPS POINT IS SHOWN ON TRACT MAP NO. 15945, RECORDED IN BOOK 805,
PAGES 18 -25 INCLUSIVE', OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, BEING COITION ^O " H_RBOR VIEWS ,:7 -,:7 - PHASE 3"
ANNEXATION TO THE CITY OF NEWPORT BEACH;
THENCE CONTINUING ALONG THE EXISTING CI ^_Y BOUNDARY OF THE CI ^1Y OF NEWPORT
BEACH PER "HARBOR VIEW HILLS -PHASE 3" ANNEXATION, THE "r__FBOR VIEW HILLS
SECTOR 4" ANNEXATION, THE "HARBOR RIDGE ANNEXATION NO. 89 ", THE "HARBOR
RIDGE ANNEXATION NO. 82, THE "HARBOR VIEW HILLS -PHASE 3" ANNEXATION, THE
"HARBOR VIEW HILLS -PHASE 4" ANNEXATION, THE " ANNEXATION NO. 57 (CENTERVIEW
ANNEXATION) ", THE "HARBOR VIEW" ANNEXATION, ANNEXATION 'NO. 8, CITY
BOUNDARY 1928 (COURT CASE NO. 23686) INCORPORATED SEPTEMBER 1, 1906; THE
"CORONA HIGHLANDS" ANNEXATION, THE "SEAWARD 17" ANNEXATION, THE "CAMEO
HIGHLANDS" ANNEXATION, THE "ANNEXATION NO. 84 ", THE "CAMEO HIGHLANDS"
ANNEXATION, THE "ANNEXATION NO. 64 ", THE "CAMEO CLIFFS" ANNEXATION" THE
"SHORE CLIFFS -. CAMEO SHORES TIDELANDS ANNEXATION" THROUGH THEIR VARIOUS
COURSES IN A GENERAL SOUTHEASTERLY, SOUTHWESTERLY, SOUTHEASTERLY,
SOUTHERLY, WESTERLY, SOUTHERLY, EASTERLY, SOUTHERLY, WESTERLY, SOUTHERLY,
LEGV1311- LGL1(R).0 (06/19/01) SE PAGE 1
•
EXHIBIT 'A'
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
SOUTHEASTERLY, SOUTHERLY, SOUTHWESTERLY, WESTERLY, NORTHWESTERLY,
SOUTHWESTERLY, WESTERLY, SOUTHWESTERLY, SOUTHERLY, NORTHWESTERLY,
SOUTHWESTERLY; WESTERLY, SOUTHEASTERLY, NORTHEASTERLY, SOUTHERLY,
SOUTHWESTERLY, NORTHWESTERLY AND SOUTHWESTERLY DIRECTION TO AN ANGLE POINT
ON THE BOUNDARY OF THE CITY OF NEWPORT BEACH AS ESTABLISHED BY "SHORE
CLIFFS - CAMEO SHORE TIDELANDS ANNEXATION ";
THENCE LEAVING SAID CITY BOUNDARY IN A DIRECT LINE NORTHEASTERLY 3 MILES
MORE OR LESS TO A POINT ON THE MEAN HIGH TIDE OF THE PACIFIC OCEAN; SAID
POINT BEARING SOUTH 37 039'50" WEST 600 FEET MORE OR LESS FROM THE NORTHWEST
CORNER OF PARCEL 3 OF "PARK PROPERTY" AS DESCRIBED IN CORPORATION GRANT
DEED TO THE STATE OF CALIFORNIA ON FILE DECEMBER 19, 1979, IN BOOK 13439,
PAGE 94 -132 IN THE OFFICE OF THE COUNTY RECORDER, SAID POINT BEING THE
SOUTHWESTERLY PROLONGATION OF THAT .CERTAIN .COURSE DESCRIBED AS "NORTH
37 039'50" EAST 104.98 FEET" IN SAID DEED IN THE WESTERLY BOUNDARY OF PARCEL
3 OF SAID "PARK PROPERTY ";
THENCE ALONG SAID SOUTHWESTERLY PROLONGATION 'NORTH 37 039'50" EAST 600 FEET
MORE OR LESS TO THE SOUTHWESTERLY TERMINUS OF THAT CERTAIN COURSE
DESCRIBED` AS "NORTH 37 039'50" EAST 104.98 FEET" IN THE NORTHWESTERLY
BOUNDARY OF SAID PARCEL.3, SAID TERMINUS ALSO BEING ON THE NORTHEASTERLY
RIGHT OF WAY LINE OF THE PACIFIC COAST HIGHWAY BEING A HIGHWAY OF VARIABLE
WIDTH, AND FURTHER DESCRIBED IN BOOK 487, PAGE 11 OF DEEDS I14 THE OFFICE OF
THE COUNTY RECORDER; I
-
THENCE LEAVING SAID NORTHEASTERLY RIGHT OF ?:AY LINE ALONG THE
NORTHWESTERLY BOUNDARY LINE OF PARCEL 3 OF SAID "PARK PROPERTY ".;
THENCE .NORTH 37 039'50" EAST 104.98 FEET TO THE BEGINNING OF A TANGENT
950.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTHEAST;
THENCE ALONG THE ARC OF SAID CURVE; NORTHEASTERLY, 219.65 FEET THROUGH A
CENTRAL ANGLE OF 13 014'50 ";
THENCE NORTH 50 054'40" EAST 1645.45 FEET TO THE BEGINNING OF A TANGENT
1300.00 FOOT RADIUS CURVE CONCAVE TO THE WEST;
THENCE ALONG THE ARC OF SAID CURVE NORTHEASTERLY, 1590.29 FEET THROUGH A
CENTRAL ANGLE OF 70 005'24 ";
LEC \1311 -L LlM DOC (06 115I011 sc PAGE 2
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
THENCE NORTH 19010'44" WEST 387.88 FEET;
THENCE SOUTH 84042'47" EAST 288.52 FEET;
THENCE NORTH 58039'02" EAST 1018.72 FEET;
THENCE NORTH 74008'04" EAST 197.52 FEET;
THENCE NORTH 60027'40" EAST 137.93 FEET;
THENCE SOUTH 68054'28" EAST 150.05 FEET;
THENCE NORTH. 66048'05" EAST 167.55 FEET;
THENCE NORTH 04038'08" EAST 74.24 FEET;
THENCE SOUTH 87003'52" EAST 84.20 FEET;
THENCE NORTH 23021'06" WEST 232.34 FEET;
THENCE NORTH 51008'19" EAST .3.10.79 FEET;
THENCE NORTH 31050'33" EAST 223.66 FEET;
THENCE NORTH 11055'46" WEST 290.27 FEET;
THENCE NORTH 30002'00" EAST 147.85 FEET;
THENCE NORTH 35052'56" WEST 232.03 FEET;
THENCE NORTH 10.031'40" EAST 229.87 FEET;
THENCE NORTH 46028'08" EAST 55.17 FEET;
THENCE NORTH 67053'26" EAST 138.16 FEET;
THENCE NORTH 38031'49" EAST 138.06 FEET;
THENCE NORTH 24035'24" EAST 129.77 FEET;
THENCE NORTH 03052'43" EAST 118.27 FEET;
LEG \1331- LGL11R1.0 106119/01) se PAGE 3
•
EXHIBIT `A'
s
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
THENCE NORTH 19050'41" EAST 141.40 FEET;
THENCE NORTH 49001'42" EAST 150.97 FEET;
THENCE NORTH 73052'21" EAST 172.80 FEET;
THENCE NORTH 60049'09" EAST 176.38 FEET;
THENCE NORTH 11048'47" EAST 312.62 FEET;
THENCE NORTH 03021'59" WEST 272.47 FEET TO THE SOUTHEASTERLY TERMINUS OF
THAT CERTAIN COURSE DESCRIBED AS "SOUTH 28 °44'47" EAST 328.52 FEET" IN THE
EXISTING WESTERLY BOUNDARY OF "PARK PROPERTY" AS DESCRIBED IN CORPORATION
GRANT DEED TO THE STATE OF CALIFORNIA RECORDED NOVEMBER 17, 1981 ON FILE
IN BOOK 14292, PAGE 953 -965 IN THE OFFICE OF THE COUNTY RECORDER;
THENCE
THENCE
THENCE
THENCE
THENCE
THENCE
THENCE
ALONG
NORTH
NORTH
NORTH
NORTH
NORTH
NORTH
SAID WEST
11021'29"
08021'57"
29047'31"
80008'45"
30018'40"
79056'51"
ERLY ;
EAST
WEST
EAST
EAST
EAST
EAST
3OUNDARY NORTH 28044'47" WEST 328.52 FEET;
467.15 FEET;
68.73 FEET;
301.90 FEET.;
383.72 FEET;
301.17 FEET;
446.86 FEET;
THENCE NORTH 49 046'51" EAST 390.27 FEET;
THENCE NORTH 75036'00" EAST 152.80 FEET;
THENCE NORTH 88017'55" EAST 404.18 FEET;
THENCE NORTH 02027'46" EAST 186.17 FEET;
THENCE NORTH 25 047'27" EAST 330.97 FEET;
THENCE NORTH 89015'21" EAST 308.03 FEET;
UCNlU1- aecliai.e (06/19101) 9e PAGE 4
EXHIBIT `A'
0
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
THENCE NORTH 11034'59" EAST 2549.93 FEET;
THENCE NORTH 11006'16" WEST 1038.44 FEET;
THENCE NORTH 10047'04" EAST 235.15 FEET;
THENCE NORTH
THENCE NORTH
THENCE NORTH
THENCE NORTH
THENCE NORTH
THENCE NORTH
THENCE NORTH
THENCE NORTH
THENCE NORTH
THENCE SOUTH
^HENCE NORTH
THENCE SOUTH
THENCE SOUTH
35006'10"
16038'20"
18054'59"
16025'40"
29010'03"
14024'00"
52016'30"
80017'00"
37027'15"
33000'20"
70038'36"
02059'35"
22006'00"
EAST
EAST
WEST
EAST
EAST
EAST
EAST
EAST
EAST
EAST
EAST
WEST
EAST
551.26 FEET;
181.60 FEET;
188.16 FEET;
424.32 FEET;
196.98 FEET;
152.80 FEET;
67.01 FEET;
148.12 FEET;
274.61 FEET;
789.39 FEET;
784.31 FEET;
306.42 FEET;
356.17 FEET;
THENCE SOUTH 35018'58" EAST 2345.66 FEET TO WESTERLY TERMINUS OF THAT
CERTAIN COURSE DESCRIBED AS "SOUTH 44 031'21" EAST 678.84 'FEET" IN THE
EXISTING NORTHEASTERLY BOUNDARY OF SAID BOOK 13439, PAGE 94 -132;
THENCE LEAVING THE BOUNDARY OF SAID BOOK 14292, PAGE 953 -965 AND ALONG THE
NORTHEASTERLY BOUNDARY OF SAID BOOK 13439, PAGE 94 -132;
THENCE SOUTH 44031'21" EAST 678.84 FEET;
THENCE SOUTH 71026'28" EAST 584.39 FEET;
L=%1331- LGLI(RI.D 106/19/011 se PAGE 5
EXHIBIT 'A'
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
THENCE SOUTH 85006'26" EAST 515.88 FEET;
THENCE SOUTH 74032'30" EAST 420.20 FEET;
THENCE SOUTH 66047'38" EAST 548.66 FEET TO A POINT ON THE SOUTHEASTERLY
LINE OF BLOCK 161 OF SAID IRVINE'S SUBDIVISION;
THENCE LEAVING THE NORTHEASTERLY BOUNDARY OF SAID BOOK 13439, PAGE 94 -132
AND ALONG THE SOUTHEASTERLY LINE OF SAID BLOCK 161 NORTH 40033'59 EAST
188.12 FEET TO A POINT ON THAT CERTAIN COURSE BEARING "NORTH 34 056'51" WEST
457.86 FEET" IN THE EXISTING BOUNDARY OF "THE PROPERTY" DESCRIBED IN GRANT
DEED TO THE CITY OF LAGUNA BEACH RECORDED JUNE 27, 1991 AS DOCUMENT NO. 91-
330557 IN THE OFFICE OF THE COUNTY RECORDER;
THENCE ALONG SAID COURSE AND THE SOUTHWESTERLY BOUNDARY OF "THE PROPERTY"
OF SAID GRANT DEED NORTH 34055'56" WEST 53.88 FEET;
THENCE NORTH
THENCE NORTH
THENCE SOUTH
THENCE NORTH
THENCE NORTH
THENCE NORTH
68021'18"
60007'54"
83028'56"
66044'01"
39006'41"
54032'38"
WEST
WEST
WEST
WEST
WEST
WEST
560.20 FEET;
785.39 FEET;
326.82 FEET;
658.40 FEET;
465.65 FEET;
526.14 FEET;
THENCE NORTH 34026'23" WEST 410.92 FEET;
THENCE NORTH 12044'59" EAST 337.73 FEET;
THENCE NORTH 24022'24" WEST 331.27 FEET;
THENCE NORTH 38033'34" WEST 489.32 FEET;
THENCE NORTH 22014'13" WEST 315.36 FEET;
THENCE NORTH 41041'22" WEST 538.97 FEET;
THENCE NORTH 46030'42" WEST 848.19 FEET;
LEG \1]J1 -LGL11R1.➢0C 106/19/011 S8 PAGE 6
0
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
THENCE NORTH 71006'53" WEST 244.14 FEET;
THENCE SOUTH 89008104" WEST 252.22 FEET TO THE SOUTHWESTERLY PROLONGATION
OF THE COURSE DESCRIBED AS "NORTH 40 000'00" EAST 660.00 FEET" IN ANNEXATION
NO. 1 (FRASIER ANNEXATION) TO THE CITY OF IRVINE;
THENCE ALONG SAID PROLONGATION NORTH 40 033'37" EAST 221.97 FEET TO A POINT
IN THE SOUTHEASTERLY BOUNDARY OF THE CITY OF IRVINE AS ESTABLISHED BY
"REORGANIZATION NO. R097 -04" DISTANT THEREON SOUTH 64016'17" EAST 1340.14
FEET FROM THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS
"NORTH 64016'17" WEST 4468.85 FEET" IN THE CENTERLINE OF TR -73 (SAN
JOAQUIN HILLS TRANSPORTATION CORRIDOR) AS DESCRIBED IN PARCEL 1 OF SAID
REORGANIZATION NO. R097 -04;
THENCE ALONG SAID EXISTING CITY BOUNDARY AND THE CENTERLINE OF TR -73 PER
SAID "REORGANIZATION NO. R097 -04" THROUGH THEIR VARIOUS COURSES IN A
GENERAL NORTHWESTERLY DIRECTION TO AN ANGLE POINT IN THE EXISTING CITY OF
NEWPORT BEACH BOUNDARY AS ESTABLISHED. BY "REORGANIZATION NO. R097 -35 ",
SAID POINT BEING THE SOUTHEASTERLY TERMINUS OF TE -kT COURSE DESCRIBED AS
"NORTH 690 24'23" WEST 2092.48 FEET";
THENCE ALONG SAID EXISTING CITY BOUNDARY PER SAID "REORGANIZATION NO.
R097 -35" THROUGH ITS VARIOUS COURSES IN A ZNERAT NORTHWESTERLY,
SOUTHERLY, SOUTHEASTERLY AND NORTHWESTERLY D= RECTIC`d TO THE TRUE POINT OF
BEGINNING.
CONTAINS 7,799 ACRES, MORE OR LESS.
ATTACHED HERETO AND MADE A PART HEREOF, IS A MAP DESIGNATED AS EXHIBIT
..B„
TO OBTAIN THE GRID DISTANCE AT GPS PT. N0, 6247, MULTIPLY THE GROUND
DISTANCE BY 0.99996664.
THIS LEGAL DESCRIPTION WAS PREPARED BY ME, OR UNDER; MY SUPERVISION FROM
RECORD I_iFORIAIpN ONLY. NO FIELD SURVEY HAS BEEN CONDUCT�O VERIFY ANY
REX S. PLUMMER, PLS 6641 DATE
EXPIRATION DATE 12/31/03
Na 6691
=\1131- DGL11E1.DOC (061191011 6E PAGE 7
0 i
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA01 -06
TO THE CITY OF NEWPORT BEACH
THIS PROPOSAL DOES MEET THE APPROVAL OF
THE ORANGE COUNTY SURVEYOR'S OFFICE.
DATED TIMS 72---1 DAY OF —Z-Ou- c_ , 2001.
0
RW .AW.
DATE 09/30/01
LM \1131- WLl(E1.00C (061191011 SE PAGE 8
BLOCKS 5151, 5152, 5251. 5152
5253. 5151. 5J52 ANNEXATION NO. 1
MODULES, VARIOUS �(FRASIER ANNEXATION)
4 BONITA
/I CANYON ROAD I CITY of I RVIN
i I �
NEW FORD /
,.,;. ROAD /
CE SAN UOAQUIN HILLS TRtNSPORTATION
Y I CORRIDOR
WPOR
- el, - - - - ---- - - -�..
CITY Of I is
LH
NBE WAYCOAST
w
0 ou
INDEX MAP
Nor m SCALE
®2 INDICATE5 SHEET NUMBER
ualuvLUmv
LEGEND
SHEET I OF 5
FXISRNC CITY NEWPORT BEACH BOUNDARY PER
REORGANIZ IZA RON N0. 97 -J5.
EXISTING CITY OF NEWPORT BEACH BOUNDARY PER
VARIOUS ANNEXA BONS.
" FXISVMC CITY OF TRVME 8CUNOARY PER REORGANIZATION
N0. 97 -04.
° EXISTING CRYSTAL COVE STATE PARK BOUNDARY.
. BOUNDARY OF DEED GRANTED TO THE CITY OF LAGUNA
BEACH RECORDED ✓UNE 27, 1991 AS DOC. N0. 91- JJ0557
G I ® INDICATES SHEET NUMBER
\ P.O.D. INDICATES POINT OF BEGINNING
I D fNDfCATE5 HORIZONTAL CONTROL STATION AS NOTED
NOTE
THIS ADTJ5IMENT CONTAINS 7,799 ACRES MORE OR LESS
I
PREPARED BY ME OR UNDER MY DIRECT SUPERWS1CN
FROM RF f A77ON ONLY NO FIELD SURVEY HAS
BEEN C C 7FY ANY RECORD INFORMATION.
40 LRff
CRYSTAL L I REX S PLUMMER LS 6641 •"�,.,'` S PC OS'fr \rr�
STATE I REGISTRATION EXPIRES 12131103 •. o \p
PARK C
I E%➢I rj, s
NO. 664 I
F
THIS PROPOSAL DOES MEET THE APPROVAL OF THE f CAI. +FU
ORANGE COUNTr�Y R�URVEYORS OFFICE
OA 157"1••DAY 2001
4- �Gfv l
O
p }Q
1
N CANAS, COUNTY SURVEYOR, L.S. 4408
LICENSE EXPIRES 9130101 k
EXHIBIT 118" Project Design. Cons- Wtants
(NEWPORT COAST' ANNEXA77ON io�iR. SIrce1,=3vt9RT o. Son R1TM3o.NCa sna
CAOI -os TO THE CITY OF NEWPORT REACH) 315296'6171 sax z34 0319
EXHIBIT
EXHIBIT C - PLANNING AND ENVIRONMENTAL HISTORY
Date
Document
Action /Approval
Relationship to Proposed Project.
1976.79
Irvine Coastal Community
Approved by the
Established a maximum residential build out for Irvine Coast of
General Plan Amendment
County; denied by the
12,000 DUs. Acted as County General Plan and proposed as first
Final EIR No. 134.
California Coastal
coastal LCP to Coastal Commission.
Commission (as LCP
document)
1982/
Irvine Coast Local Coastal
Approved by the
Established as first LCP for Irvine Coast. Maximum residential build
1983
Program 80- 4/Land Use
County; certified by
out of 2,000 units, provided other land uses, development policies,
Element Amendment 80-4;
the California Coastal
and regulations. Determined Coastal Act Consistency. For PA 3
Supplemental EIR No. 237,•
Commission
(similar area to proposed project area) established maximum of 85
LCP Implementation Action
SF DUs. PA14: 250 overnight accommodations and 25,000 square;
Plan.
feet of related commercial uses.
1987/
First Amendment to the
Approved by the
Established a maximum residential build out of 2,600 units, land
1988
Irvine Coast Local Coastal
County, and certified
uses, intensity of use, development policies, and regulations.
Program Land Use Plan
by the California
Determined Coastal Act consistency. Similar land use designations
and Implementing
Coastal Commission
and build out within proposed project area as was approved in the
Ordinance for the Irvine
1982 LCP.
Coast Planning. Unit.
-
1988/
FEIR No. 486, Irvine Coast
Certified by the
Serves as an implementing mechanism far the Irvine Coast LCP.
1996
Planned Community
County of Orange
Addressed impacts based on build out of project pursuant to the
Development Agreement.
1988 LCP and Development Agreement.
Addendum for
Development Agreement
First Amendment.
1988
FEIR No. 485, Irvine Coast
Certified by the
Addressed environmental impact of backbone infrastructure,
Planned Community
County of Orange
roadways, and subdivision of 2,813 acres, evaluating 23 of 44
Master Coastal
Master CDP land use planning areas. EIR analysis included PAs
Development Permit MCDP
3A, 3B and 14; addressed construction of Sand Canyon Avenue
88 -11P and Vesting A"
through PAs 3A and 3B; partial widening of PCH along The Irvine
Tentative Tract Map No.
Company property; construction of backbone' drainage system as
13337.
recommended in the RMDRMP; construction and/or relocation of
master utilities and construction of backbone
domestic water storage and distribution system and backbone
wastewater collection system. FEIR 485 did not address specific
development proposals for residential, tourist commercial, or golf
course development. Subsequent EIRS, in conjunction with
subdivision "6" maps and project Coastal Development Permits,
have addressed area specific proposals.
1989
Final EIR No. 511, Irvine
Certified by the
Evaluated construction level impacts for 11 individual projects
Coast Planned Community,
County of Orange
(residential and golf course uses) in addition to the realignment of
Phase 1.
Lower Loop Road (now named Pelican Hill Road). Included PAs
3A, 36, 14. Proposed development in PAs 3A,.3B, and 14, as
addressed in FEIR 511, was low density (estate/oustom lot)
residential units. FEIR 511 addressed the First Amendment to the
MCDP and the Second revised Vesting "A" Tentative Tract map
13337. As part of the First Amendment to the MCDP, planning area
boundaries, including those of 3A, 38, and 14, were adjusted from
boundaries established in the original MCDP and LCP documents;
and development densities in PAs 3A and 3B were changed from 0-
2 du /ac as stated in the certified LCP, to 0.3 du /ac in the MCDP First
Amendment.
1989
Refined Master Drainage
Approved by the
Recommended backbone drainage improvement system for the
and Runoff Management
County of Orange
NCPC. Drainage and sedimentation control measures are included
Plan
as part of each subsequent development project within the .
MCDP /NCPC. The RMDRMP addressed facilities to mitigate
increased peak runoff volumes and rates due to planned
development. The RMDRMP is the master improvement plan from
which subsequent site specific storm runoff management plans for
NCPC development areas are derived. Each development project
must engage a runoff management system that will maintain post -
project flow rates to within ten percent of the pre - developed
condition, in accordance with the certified LCP.
EXHIBIT _ C
Date
Document
n /Approval
RelationstW Proposed Project
1991
Final EIR 517
Approved Certified
San Joaquin Hills PC
Addendum 1, Addendum
SJHPC
Initial Study 1, Addendum
PA21
No. PA9501191PA950120,
Addendum IP98-070
1994
Addendum to FEIR No.
Certified by the
Site Development Permit to allow mass grading in PA 3A and for a
511 -PA 940113 Site
County of Orange
borrow site (in PA 36) in an area previously analyzed for
Development
development.
Permit/Wishbone Hill
Grading
1995
Mitigated Negative
Approved by the
Negative Declaration addressed potential environmental effects.of
Declaration No. /P- 95 -10Q
County of Orange
deleting segments of Sand Canyon Avenue and San Joaquin Hills
Transportation Element
Road from the County Master Plan of Arterial Highways (MPAH).
Amendment 95 -1
Most relevant to the proposed project, NC Phase IV -2, the approval
of the MPAH amendments removed the master planned segment of
San Canyon Avenue from its existing terminus just north of PCH to
the San Joaquin Hills Transportation Corridor ( SJHTC), and deleted
the then planned interchange of San Canyon Avenue at the SJHTC.
The removal of this planned segment was the result of changes in
future land uses in the City of Irvine (PA 22) that would result in
more open spacelless development and in unincorporated Orange
County property /Newport Coast/Newport Ridge
areas. Therefore, San Canyon Avenue north of PCH has been
changed in name (application. in review at County) to Crystal Cove
Drive, and will serve as a community'access/entry street rather than
a County arterial.
1995
Ord. #3931 & Reso #95-
Approved by County
PA22, Newport Ridge PC
180.
of Orange
1996
Second Amendment to the
Approved by the
The LCP Second Amendment further modified the LCP by adjusting
Newport Coast Local
County of Orange,
planning area boundaries and open space boundaries adjacent to
Coastal Program Land Use
and certified by the
Crystal Cove State Park to improve habitat connectivity; the Second
Plan and Implementing
California Coastal
Amendment increased the maximum number of dwelling units
Ordinance for the Newport
Commission
allowed in undeveloped planning areas to match the low end of
Coast Planning Unit
density ranges established by the land use categories while
maintaining the maximum allowed 2,600 total dwelling units in the
NCPC; technical revisions were made to the LCP including name
changes to roads and planned communities.
1996.
Natural Community
Certified by the
Addressed NCCP /HCP for Central/Coastal Orange County. Plan
Conservation Plan and
County of Orange,
includes 37,000 acre reserve system, authorizes incidental take of
Habitat Conservation Plan
California Department
coastal sage scrub, and provides regulatory coverage for 39
Joint Programmatic FEIR
of. Fish and Game,
individual species. The proposed project site is not within the NCCP
No. 553IFEIS 96-26
and U.S. Fish and
Reserve since the site was master planned for development.
Wildlife Service
Mitigation measures prescribed in FEIR 511 and FEIR 553/FEIS 96-
26 (NCCP) pertain to project impacts to coastal sage scrub and are
applied in this EIR.
1996
Addendum to Final EIR No.
Adopted by the
Addressed proposed amendments to the Central and Coastal
553 for the County of
County of Orange
NCCP /HCP to reflect relevant provisions of the Second. Amendment
Orange Central and
to the Newport Coast Local Coastal Program (LCP). The
Coastal Sub region Natural
amendments to the NCCP /HCP included a) revisions to the Coastal
Community Conservation
Subarea Reserve to reflect new development and open space
Plan and Habitat
configurations provided for in the LCP Second Amendment; b)
Conservation Plan
corresponding elimination of certain Special Linkage Areas, and c)
provisions for infrastructure to be located in areas proposed to be
added to the Coastal Subarea Reserve. The amendments to the
Reserve System boundaries represent an overall increase in total
acreage of the Coastal Subarea Reserve, and significant
improvements in wildlife connectivity within the Reserve System:
1997
Addendum PA 970046 to
Certified by the
Addressed a modified development plan for one -half of Planning
EIR No. 511
County of Orange
Area 3A; known as Development Area (DA) 3A -1. The proposed
project site is not within DA 3A-1.
IBIT L
Date
Document
n /Approval
RelaflonsFW Proposed Project
1997-
FEIR 568, Phase 111-2 of
Certified by the
Evaluated constriction level impacts for PA 3A -2, 3B, 12B and 14,
1998
the Newport Coast Planned
County of Orange
including: shifting of development area boundaries; extending
Community, Newport Coast
development into lower Los Trancos Canyon; providing for
Planning Areas 3A -2, 3B,
neighborhood commercial uses near PCH, and increasing flexibility
14, MCDP Sixth
for tourist commercial uses in PA14: The project establishes
Amendment and Coastal
infrastructure and mass pads to facilitate future residential
Development Permit, TTMs
development and commercial projects in PA 3A -2, 3B, recreation In
15444 and 15446.
PA 12B and tourist/visitor uses in PA14. TTMs 15444 and 15446
subdivide the project for financing and conveyance purposes.
1998
FEIR 569, Phases IV -3 and
Certified by County of
Evaluated construction level impacts for PAs 4A, 4B, 5, 6, 12C, 12E
1V-4 of the Newport Coast
Orange
and 12G. Uses proposed include residential and recreation.
Planned Community,
Included: MCDP Seventh Amendment - Program analysis of 335
Newport Coast Planning
residential units in Phase IV -3, 24 gross acre private recreation
Areas 4A, 4B, 5, 6, 12C,
facility in 12E, 300 residential units in Phase IV -4, shifting of
12E, and 12G and MCDP
planning area boundaries; shifting of development from PA1213;
Seventh Amendment; TTM
increase the maximum number of residential units allowed in
15447
underdeveloped planning areas, adjustmenUexpansion at the types
of recreation; subdivision of PA into development components,
deletion of appealable areas; relocation of 66KU transmission of an
emergency access /utility road in county open space. TTM 15447 -
mass grading and infrastructure, including construction of major
circulation improvements, drainage structures and utility
improvements; State Parks Public Works Plan - amendments to allow
for improvement and maintenance within Crystal Cove State Park.
199.8
Addendum covering: Land
Approved by County
SJHPC PA 22 Re -named Newport Ridge PC
Use Element LU98 -1
of Orange
Community Profile
Amendment CPA98 -1;
Zone Change 3C -98 -1
(Reso 98-87) ;
Site Development Permit
98 -0117;
Local Parks
Implementation Plan PM
92 -01;
TTM 15333;
PA21
P.C. Reso 95 -20,
TTM 15717,
TTM 15134, 15135,
VTTM 15585;
PA22
TTM'15934, 16037,
PA 99-015 for Site
Development Permit.00-
0029 SDP;
TTM 15935
1999
Addendum No. PA980117
Approved by County
San Joaquin Hills PC; PA 21
of Orange
2000-
Coastal Commission
Approved by
Seventh Amendment for NCPC. Proposed project includes mass
2001
Appeal No. A5- /RC -99-
California Coastal
grading, back lane infrastructure for future residential and
301A
Commission
recreational development in PA 4A, 4B, 5, (northeaster 2C), 6, 12C,
offer to dedicate open space in 12E and 12G and approval of TTM
15447. Also includes 1.6 acres of Needlegrass restoration and
riparian mitigation totaling approximately 3 acres to mitigate .0529
acres of wetland impact and approximately seven miles of "non-
wetland" waters of the U.S.
• DRAFP August 29, 2001
Page 16 of 16
Exhibit D
List of County Development Approvals
The components of the Development Plan. as shown by various Development Approvals include:
A. Newport Coast Local Coastal Program 2n0 Amendment and all further amendments adopted
before the City assumes permit issuing authority for the property as provided for within this
Agreement. The Newport Coast Local Coastal Program, 2nd Amendment was approved by the
California Coastal Commission on October 10, 1996; certified by the County of Orange Board of
Supervisors on December 3, 1996 (Resolution No. 96 -861 and Ordinance No. 096- 3974); and
Certified by the California Coastal Commission on January 21, 1997;
B. Newport Ridge Planned Community Program: Approved by the County of Orange Board of
Supervisors on March 17, 1998 (Resolution Nos. 98087 and 98 -88; Ordinance No. 98 -3);
C. Newport Coast Master Coastal Development Permit 7th Amendment (PA 970152); Approved by
the County of Orange Planning Commission on July 21, 1998;
D. First Amendment to the Irvine Coast Development Agreement: Recorded April 2, 1997 (No.
19970149745); and
E. Related secondary implementing approvals, permits, and actions pursuant to and consistent
with the foregoing (e.g. subdivision maps, individual coastal development permits, grading plan
approvals and permits, etcetera).
F. An Annexation and Development Agreement between the City of Newport Beach, The Irvine
Company, and Irvine Community Development Company; approved by the Newport Beach City
Council on July 24, 2001.
0 EXHIBIT E •
MITIGATION MEASURES
fhe term Mitigation Measures includes, but is not limited to, the mitigation measures approved in
conjunction with the certification or approval of the following environmental and planning documents.
This Exhibit is for information only and does not constitute any modification or amendment or any
mitigation measure or condition adopted with reference to the Project. The environmental
documents listed in this Exhibit are on file in the Planning Department of the City of Newport Beach,
Irvine Coastal Community General Plan Amendment, Final EIR No. 134;
2. Irvine Coast Local Coastal Program 80 -4 1Land Use Element Amendment 80 -4; Supplemental
EIR No. 237, LCP Implementation Action Plan;
3. FOR No. 486, Irvine Coast Planned Community Development Agreement. Addendum for
Development Agreement First Amendment
4. FE1R No. 485, Irvine Coast Planned Community Master Coastal Development Permit MCDP
88 -11P and Vesting "A" Tentative Tract Map No. 13337
5. Final EIR No. 511, Irvine Coast Planned Community, Phase 1
6. Refined Master Drainage and Runoff Management Plan
7. Addendum to FE1R No, 511 -PA 940113 Site Development PermitAMshbone Hill Grading
8, Mitigated Negative Declaration No. 1P -95 -100, Transportation Element Amendment 95-1
9. Natural Community Conservation Plan and Habitat Conservation Plan Joint Programmatic
FE1R No. 553IFEIS 96 -26
10. Second Amendment to the Newport Coast Local Coastal Program Land Use Plan and
Implementing Ordinance for the Newport Coast Planning Unit
11. Addendum to Final EIR No. 553 for the County of Orange Central and Coastal Subregion
Natural Community Conservation Plan and Habitat Conservation Plan
12. Addendum PA 970046 to EIR No. 511
0 6
EXHIBIT F
AFFORDABLE HOUSING IMPLEMENTATION PLANS
The term Affordable Housing Implementation Plans refers to two plans prepared for the
Environmental Management Agency of the County of Orange. The plan for that portion of the
Property within the Coastal Zone - identified as the "Affordable Housing Implementation Plan - Irvine
Coast Planned Community" -was prepared by Affordable Housing Consultants and was approved
by the County on October 29, 1991.
The plan for the Newport Ridge - identified as the "Affordable Housing Implementation Plan — The
San Joaquin Hills Planned Community" - was prepared by FORMA and was approved by the
County on November 2, 1995.
These Affordable Housing Implementation Plans are available for public inspection in the Planning
Department of the City of Newport Beach during normal business hours.
ORDINANCE 2001- 13 ,
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH ADOPTING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF NEWPORT
BEACH AND THE IRVINE COMPANY [DEVELOPMENT
AGREEMENT NO. 14]
The City Council of the City of Newport Beach DOES HEREBY ORDAIN as follows:
SECTION 1. The City Council finds and declares that: '
a. The State Legislature and the City Council have determined that the lack of certainty
in the approval of development projects can result in a waste of resources, escalate
the cost of housing and other development to the consumer, and discourage
investment in and commitment to the comprehensive planning which would make
maximum efficient utilization of resources at the least economic cost to the public;
and
b. Assurance that an applicant may proceed with a project in accordance with existing
policies, rules and regulations, and subject to conditions of approval, will strengthen
the public planning process, encourage private participation in comprehensive
planning, and reduce the economic costs of development; and
C. California government Code Section 65864 et seq. authorizes cities to enter into
development agreements with any person having a legal or equitable interest in
property for the development of the property; and
d. Chapter 15.45 of the Newport Beach Municipal code provides requirements and
procedures for the amendment of development agreements; and
e. The Development Agreement has been prepared in compliance with state law and
the Newport Beach Municipal Code; and
f. On September 21, 2000, the Planning Commission of the City of Newport Beach
held a duly - noticed public hearing regarding the proposed Development Agreement
and; and
g. The Planning Commission found that the Development Agreement is in
conformance with the Newport Beach General Plan, as proposed by accompanying
General Plan Amendment No. 99 -3 (C), and forwarded the Development Agreement
N
to the City Council with a recommendation of adoption, subject to certain `
amendments; and
h. On October 10, 2000 and June 26, 2001, the City Council of the City of Newport
Beach held duly - noticed public hearings regarding the proposed Development
Agreement, and testimony was presented to and considered by the City Council; and
i. Pursuant to the California Environmental Quality Act (CEQA), the City has
completed an Initial Study, determined that the impacts of the subject Development
Agreement have been fully evaluated in previously certified Environmental Impact
Reports, that the conditions to the preparation of a Subsequent or Supplemental EIR
do not exist, and that a Negative Declaration is appropriate; and
j. The Development Agreement will preserve the benefits of years of land use planning
and open space - habitat preservation efforts, while establishing ultimate City control
of the area.
SECTION 2. Development Agreement No. 14, attached hereto as Exhibit A, is hereby adopted.
SECTION 3. The Mayor shall sign and the City Council 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 July 10, 2001, and adopted on July 24, 2001 by the following vote, to wit:
0 0
AYES, COUNCIL MEMBERS Heffernan, O'Neil
, Glover, Bromberg, Proctor, Mayor Adams
NOES, COUNCIL MEMBERS None
ABSENT COUNCIL MEMBERS None
dsuuw . %.
MAYOR
ATTEST:
02. 41M,
CITY CLERK
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STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 2001 -13 was duly and regularly introduced before and adopted by
the City Council of said City at a regular meeting of said Council, duly and regularly held on the
24th day of July 2001, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Heffernan, O'Neil, Ridgeway, Glover, Bromberg, Proctor, Mayor Adams
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 25th day of July 2001.
(Seal)
STATE OF CALIFORNIA
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2001 -13 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: July 28, 2001.
In witness whereof, I have hereunto subscribed my name this day of
2001.
City Clerk
City of Newport Beach, California
E
E
ANNEXATION AND DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
.L.
THE IRVINE COMPANY
/_1; I b
IRVINE COMMUNITY DEVELOPMENT COMPANY
CONCERNING THE NEWPORT COAST
AND ADJACENT PROPERTIES
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ANNEXATION AND DEVELOPMENT AGREEMENT
This Annexation and Development Agreement (hereinafter "Agreement') is
entered into effective as of July _ 2001, (hereinafter the "Effective Date ") by and
among the CITY OF NEWPORT BEACH (hereinafter "CITY "), and THE IRVINE
COMPANY and IRVINE COMMUNITY DEVELOPMENT COMPANY (hereinafter
collectively "OWNER ").
RECITALS
A. OWNER collectively owns a substantial portion of the real property
( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of
approximately 5,615 acres.
B. The Property is currently in the unincorporated area of the County of
Orange ( "County "). OWNER has obtained development approvals from the
County and the California Coastal Commission for the majority of the Property
from the County and has commenced subdivision and development. of the
Property under the jurisdiction of the County.
C. The development approvals for the Property have been granted after
a lengthy planning process that involved the careful review of numerous
environmental documents (Planning and Environmental History is attached as
Exhibit C). The development approvals include:
The County of Orange Newport Coast Local Coastal Program and
Master Coastal Development Permit for that portion of the Property
in the Coastal Zone.
2. A Development Agreement with the County (County Development
' Agreement).
3. The Newport Ridge Planned Community Plan.
4. Subdivision Maps.
D. The Property is also part of the Natural Communities Conservation
Plan (NCCP) — a complex agreement that requires OWNER to dedicate portions
of the Property upon completion of certain phases of development. OWNER is
also required to dedicate large portions of the Property pursuant to the
development approvals.
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E. OWNER was required, by the development approvals, to make
costly infrastructure improvements far in excess of those necessary to mitigate the
impacts, or serve the needs, of the development. OWNER was required to make,
and has made, these extraordinary improvements prior to development of the
Property.
F. OWNER has acquired a fully vested right to develop the Property in
accordance with the development approvals because of the extraordinary
expenditures for public and private improvements made in reliance on the
development approvals, the dedications made in reliance on the development
approvals and the County Development Agreement.
G. CITY and OWNER intend for this Agreement to fully conform to the
development approvals and to fully facilitate full implementation of the Project, as
conditioned. To the maximum extent permitted by law, this Agreement is intended
to be the functional equivalent of, or supplement, the County Development
Agreement in light of the CITY's intention to delegate to the County all municipal
land use authority over the Property until such time as the Project is complete.
H. City is desirous of annexing the Property but recognizes that the
development approvals for the Property involve complex and interrelated planning
documents. CITY does not have sufficient staff to timely process the permits
required for implementation of the Project in compliance with all the development
approvals. Moreover, the development approvals and land use plan involve the
dedication of valuable habitat and open space within and outside of the
boundaries of the Property and City does not have the personnel and expertise to
ensure that dedications occur as planned.
I. CITY and OWNER have discussed the process and terms and
conditions of annexing the Property to CITY, and each has determined that it is in
their respective best interests to pursue that annexation pursuant to the terms of
this Agreement and the development approvals. In particular CITY desires
assurances that OWNER will support eventual annexation of all of the Property to
CITY, in order to:
(a) Facilitate the timely and orderly integration of the Property into the CITY
consistent with the CITY's sphere of influence;
(b) Facilitate planning and provision of municipal services to the Property
without any adverse fiscal impact on the CITY or the ultimate owners of
the property; and
(c) ensure consistency with and implement the CITY's General Plan.
At the same time, OWNER desires to obtain assurances from CITY that,
subsequent to annexation: .
Page 3 of 23
(a) OWNER will still be able to develop the Property to the full extent
permitted by the development approvals granted by the County and the
Coastal Commission subject to conditions of approval imposed by the
Coastal Commission and the County and and consistency with the
City's General Plan;
(b) Development will be processed by the County in accordance with a
uniform set of land use and building rules, regulations and
requirements, as established by the development approvals given by
the County for the Property prior to its annexation; and
(c) Development of the Property will be subject only to costs, fees,
processing requirements, conditions or exactions that would have been
imposed had the Property not been annexed to CITY.
J. In addition to the authority at common law for annexation
agreements, Government Code Sections 65864 et seq. ( "Development
Agreement Law "), and Chapter 15.45 of the Newport Beach Municipal Code
authorize CITY to enter into binding development agreements with persons having
a legal or equitable interest in real property. This Agreement is consistent with the
public policy that supports development agreements in that it strengthens the
public planning process, facilitates implementation of comprehensive planning,
provides significant public benefits, and reduces the economic costs.of
development.
K. The City Council has found that this Agreement is in the best public
interest of the CITY and its residents, adopting this Agreement constitutes a
present exercise of its police power, and this Agreement is consistent with the
City's General Plan and the Newport Beach Municipal Code Chapter.
L. This Agreement is not intended to, and shall not be construed, to
impair the rights and obligations of OWNER, or other involved parties under and
pursuant to the Newport Coast Local Coastal Program, Second Amendment, and
the Litigation Settlement Agreement entered into June -27; 1997, by and among
OWNER, the Friends of the Irvine Coast, Laguna Greenbelt, Inc., and Stop
Polluting Our Newport.
Page 4 of 23
NOW, THEREFORE, the Parties agree as follows:
DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having
specific meanings, as defined below. These specially defined terms are
distinguished by having the initial letter capitalized, or all letters capitalized, when
used in the Agreement. The defined terms include the following:
1.1.1 "Agreement' means this Annexation and Development Agreement.
1. 1.2 "Coastal Zone Area" means that portion of the Property that is
subject to the provisions of the California Coastal Act, Public Resources
Code section 30000 et seq.
1.1.3 "CITY" means the City of Newport Beach, a California charter city.
1.1.4 "County' means the County of Orange,.a political subdivision of the
State of California.
1.1.5 "Development' whether or not capitalized means the improvement of
the Property for the purposes of completing the structures, improvements
and facilities comprising the Project 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 buildings
and structures; and the installation .of landscaping and park facilities and
improvements. For purposes of this Agreement, however, "Development"
does not include any remodeling, reconstruction, or other building or
grading activity by any person subsequent to the termination of this
Agreement as provided in and pursuant to Section 2.3.3 below.
1. 1.6 "Development Approvals" means all permits, licenses, consents,
rights and privileges, and other actions subject to approval or issuance by
County or CITY in connection with Development of the Property, including
but not limited to:
(a) General plans and general plan amendments adopted by the County
or the CITY;
(b) Specific plans and specific plan amendments;
(c) Zoning and rezoning adopted by the County or the CITY;
(d) Tentative and final subdivision and parcel maps;
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(e) Variances, conditional use permits, master plans, public use permits
and plot plans; and
(f) Grading and building permits.
1.1.7 "Development Plan" means the plan for Development of the
Property, including without limitation the planning and zoning standards,
regulations, and criteria for the Development of the Property, contained in
and consistent with the Development Approvals. The components of the
Development Plan are more fully described in Exhibit "D."
1.1.8 "Effective Date" means the date this Agreement is approved by the
CITY as shown in the first paragraph.
1. 1.9 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies governing Development and use of
land applicable to the Property pursuant to this Agreement, including,
without limitation, the permitted use of land, the density or intensity of use,
subdivision requirements,.the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and
specifications applicable to the Development of the Property. "Land Use
Regulations" does not include any CITY ordinance, resolution, code, rule,
regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) except as provided in Section 4.9 below, taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public
property;. and
(e) the exercise of the power of eminent domain
1.1.10 "OWNER" means individually and collectively The Irvine Company
and Irvine Community Development Company, and where appropriate in
context their respective successors in interest to all or any part of the
Property.
1.1.11 "Mortgagee" means a mortgagee of a mortgage, a beneficiary
under a deed of trust or any other security- device, a lender and their
successors and assigns.
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1.1.12 "Project" means the Development of the Property consistent with
the Development Plan.
1.1.13 "Property' means the real property described in Exhibit "A" and
shown on Exhibit "B" to this Agreement.
1.1.14 "Reservation of Authority' means the rights and authority excepted
from the assurances and rights provided to OWNER under this Agreement
and reserved to CITY under Section 4.6 of this Agreement.
1.1.15 "Subsequent Development Approvals" means all Development
Approvals subsequent to the Effective Date in connection with
Development of the Property.
1.1.16 "Subsequent Land Use Regulations" means any Land Use
Regulations adopted and effective after the Effective Date of this
Agreement, other than the Development Plan.
1.1.17 "Term" shall mean the period of time from the Effective Date until
the termination of this Agreement as provided in subsection 10.1, or earlier
termination as provided in Section 7.
1.2 Exhibits. The following documents are attached to, and by this
reference made a part of, this Agreement:
Exhibit "A" Legal Description of the Property.
Exhibit "B" Map showing Property and its
location.
Exhibit "C" Planning and Environmental History.
Exhibit "D" List of County Development Approvals.
Exhibit "E" Mitigation Measures.
Exhibit "F" Affordable Housing Implementation Plans.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. This Agreement shall be binding on
the CITY from and following the Effective Date. However, CITY shall
have no.right.or duty with respect to the Property until annexation of
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the Property to CITY and CITY intends, through a joint powers
agreement, ordinance or other mechanism, to delegate to the
County all municipal land use jurisdiction and all responsibility for
processing Development Approvals that the City has, or may have,
pursuant to State or local law.
2.2 Assignment by OWNER.
2.2.1 Right to Assign. OWNER shall have the right to sell,
transfer or assign the Property in whole or in part (provided that no
transfer violates the Subdivision Map Act, Government Code Section
66410, et sue.), and in so doing assign its rights and obligations
under this Agreement as the same may relate to the portion of the
Property being transferred, to any person, partnership, joint venture,
firm or corporation at any time during the term of this Agreement.
2.2.2 Release of Transferring Owner. Upon the sale,
transfer or assignment of all or a portion of the Property, the
transferring OWNER shall be released of all obligations under this
Agreement that relate to the portion of the Property being
transferred; provided that the obligations under Sections 4 and 5 of
this Agreement that relate to the portion of the Property being
transferred are assumed by and enforceable against the transferee.
2.2.3 Termination of Agreement With Respect to Individual
Residential Lots On Sale to Public and Completion of Construction.
Notwithstanding any other provisions of this Agreement, the
obligations of Owner pursuant to this Agreement shall terminate with
respect to any residential lot and such residential lot shall be
released and no longer be subject to this Agreement upon
satisfaction of both of the following conditions:
(a) The residential lot has been finally subdivided and
individually (and not in "bulk ") sold or leased (for a period
longer than one year) to a member of the public or other
ultimate user; and,
(b) A certificate of occupancy has been issued or a final
building inspection has been conducted and approved for the
primary dwelling unit on the residential lot.
2.2.4 Termination of Agreement With Respect to Non -
Residential Parcels. Notwithstanding any other provisions of this
Agreement, the obligations of Owner pursuant to this Agreement
shall terminate with respect to any non- residential parcel and the
non - residential parcel shall be released and no longer be subject to
Page 8 of 23
this Agreement at such time as the parcel has been fully-improved
and occupied consistent with the allowed intensity of development
under the Development Plan.
3. PRE - ANNEXATION OBLIGATIONS AND COMMITMENTS.
3.1 Annexation of Property. Consistent with and subject to the terms
and conditions of this Agreement and specifically this Subsection, CITY
may, in one annexation proceeding or several annexation proceedings,
annex the Property under such conditions as are imposed by or through the
Orange County Local Agency Formation Commission and reasonably
acceptable to OWNER. Conditions shall be deemed to be reasonably
acceptable to OWNER unless the conditions impair or interfere with
OWNER's rights to develop or materially increase the cost of development.
OWNER's consent to annexation of all or a portion of the Property is
contingent on, and OWNER has reasonably relied on, CITY's commitments
in Section 3 and 4 of this Agreement.
3.1.1 Annexation Before Project Completion. OWNER will support
CITY's annexation of the Property in its entirety before project
completion, provided that the Property may be fully developed
to the full extent permitted in the Development Plan and as
evidenced by satisfaction of each of the following conditions:
(a) The Legislature has approved, and the Governor has
signed, legislation that clarifies provisions of the Coastal Act
such that annexation of the Property (1) will not after or affect
the validity and enforceability of the Newport Coast Local
Coastal Program, Second Amendment, including any
amendments applicable to the Property and any related
coastal development permits; or (ii) deprive the County of
authority to issue coastal development permits pursuant to
the terms of this Agreement, any ordinance, joint powers
agreement, or other mechanism that confers municipal land
use authority to the County after annexation and the Newport
Coast Local Coastal Program, Second Amendment or any
subsequent amendments that are certified by the California
Coastal Commission;
(b) The City adopts, and maintains during the term of this
Agreement, general plan and zoning desginations for the
Property that are essentially identical to the general plan and
zoning designations adopted by the County and in effect as of
the Effective Date.
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(c) The City transfers municipal-land use authority (including
the issuance of building and grading permits) to the County
pursuant to a joint powers or similar agreement and /or
ordinance until such time as the Project is complete or until
OWNER consents, in writing, to an assumption of municipal
land use authority over all or a portion of the Property.
3.1.2 Ultimate Annexation. OWNER willfully support CITY
annexation of all or a portion of the Property without
satisfying the provisions of Section 3.1.1, provided that all lots
and /or parcels to be annexed have received building permits
for construction of structure(s) consistent with the
Development Approvals, a certificate of occupancy has been
issued or a final building inspection has been conducted and
annexation will not interfere with, affect, or impair the
Development Approvals or OWNER's ability to complete the
Project.
3.2 Environmental Impacts and Mitigation. The parties acknowledge:
that Environmental Impact Reports, environmental documents and functional
equivalents ( "Environmental Documents - described in Exhibit C) have been
prepared and certified for the Project by County and /or approved by the Coastal
Commission. CITY has reviewed and evaluated the Environmental Documents to
determine if the impacts of the Project, as represented by this Agreement, the
Development Plan, and the CITY approvals, were fully analyzed and evaluated..
CITY has also reviewed the Environmental Documents and all relevant existing
facts and circumstances to determine if any of the events that require preparation
of a subsequent or supplemental environmental document have occurred. CITY
has determined based on that review that none of the events described in Section
21166 of the Public Resources Code or Sections 15162 or 15163 of the CEQA
Guidelines have occurred. CITY has specifically determined that the detachment
of the Property from County and the annexation of the Property to CITY do not
require preparation of any subsequent or supplemental environmental impact
report for the Project because the reorganization will not increase, decrease, or
modify any development of dedication when compared to the entitlement prior to
annexation. CITY has also determined that, subject to incorporation of the
mitigation measures identified in Exhibit "E" and except as specifically provided in
this Agreement, there is no current or anticipated deficiency in any municipal
service or facility (including without limitation planned community and
neighborhood parks, drainage and flood control facilities, circulation system
infrastructure, and public safety services) resulting from Development of the
Project. The mitigation measures identified in Exhibit "E" are incorporated by
reference into the Development Plan.
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3.3 Additional Pre- Annexation Understandings. As a further
inducement to OWNER to support the annexation of the Property to CITY, CITY
agrees that, as of the date of its approval of this Agreement. CITY acknowledges
that all County affordable housing requirements associated with development of
the Property have been satisfied. CITY also acknowledges that the OWNER has
a vested right to proceed with development pursuant to the County Agreement
and that no additional affordable housing requirements shall be imposed on
development of the Property pursuant to the CITY's General Plan or otherwise.
The Affordable Housing Implementation Plans approved by the County, describing
the manner in which affordable housing requirements have been satisfied for
development of the Property, are attached to this Agreement as Exhibit "F." Fees
payable upon issuance of any development permit (e.g., building permit or
occupancy permit) will be paid to the issuer of the permit in accordance with
County Codes, fee schedules and requirements for original improvements.
Following annexation, fees shall continue to be paid to the issuer in accordance
with the codes and requirements for additions, remodels and rebuilds of the
jurisdiction with land use authority. CITY agrees that the Project is in full
compliance with, and shall not be further subject to, CITY's Traffic Phasing
Ordinance following annexation of the Property, CITY having determined through
this Agreement that:
a. Development of the Property will not cause or make worse any
unsatisfactory level of service at any critical intersection as defined in the
Traffic Phasing Ordinance;
b. Development of the Property has been considered a committed project
which has been incorporated into the CITY's traffic model and Circulation
Element traffic projections and all resulting levels of service have been
accepted in the Circulation Element; and
c. There is an overall reduction in peak hour ICU at impacted intersections
having unsatisfactory levels of service taking into account the circulation
improvements constructed or facilitated by OWNER pursuant to
conditions imposed for development of the Project, including
construction-of Newport Coast Drive, extension of San Joaquin Hills
Road, widening of Pacific Coast Highway, and facilitation of construction
of the San Joaquin Hills Transportation Corridor.
3.4 Cooperation. Subject to and in reliance upon the representations
and covenants of the CITY herein, OWNER will support the annexation of the
Property by the CITY.
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3.5 Termination of Annexation Proceedings. This Agreement may be
terminated by OWNER in the event that CITY fails to comply with the
requirements of Paragraph 3.1 above with respect to any proposed annexation of
Property to CITY, or if conditions imposed by or through the Local Agency
Formation Commission on the annexation are determined by either party to
conflict materially with its rights and obligations under any provision of this
Agreement.
4. DEVELOPMENT OF THE PROPERTY UPON ANNEXATION AND
ADOPTION OF THE DEVELOPMENT PLAN.
Following annexation of the Property by CITY, the following provisions shall apply:
4.1 Rights to Develop. Subject to the terms of this Agreement,
following annexation of the Property OWNER shall have a vested right to develop
the Property in accordance with, and to the extent. of, the Development Plan.
Pending annexation to CITY, OWNER shall have the right to seek approvals from
County for the Development of the Property, and to develop the Property,
consistent with the Development Plan. CITY expressly agrees to take no action
that would or could (a) interfere with or impair the Development Approvals; (b)
interfere with or impair the OWNER's ability to complete the project; (c) materially
increase the cost of completing the project without the OWNER's express written
consent; or (d) cause the transfer of any permitting or development review
authority pursuant to State or local law, including Government Code section
30519, from the County to the City or any other agency until such time as that
portion of the Property affected by the transfer is fully developed pursuant to the
Development Plan and provided the transfer would not interfere or impair
OWNER's ability to develop any other portion of this Property.
4.2 Effect of Agreement on Land Use Regulations. Except as
otherwise provided under the terms of this Agreement, the rules, regulations and
official policies governing permitted uses of the Property, the density and intensity
of use,cf the Property, the maximum height and size of proposed buildings, and
the design, improvement and construction standards and specifications applicable
to Development of the Property, shall be those contained in the Development Plan
and those Land Use Regulations not inconsistent with the Development Plan and
that were in full force and effect as of June 26, 2001.
4.3 Timing of Development. The parties acknowledge that OWNER
cannot at this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors which are not within
the control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v. .City of Camarillo (1984)•37 Cal. 3d 465,
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that the failure of the parties therein to provide for the timing of Development
resulted in a later adopted initiative restricting the timing of Development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by
acknowledging and providing that OWNER shall have the right to develop the
Property in such order and at such rate and at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Nothing in this
section is intended to alter the standard durational limits of any permits issued to
OWNER pursuant to Development Approvals.
4.4 Changes and Amendments. The parties acknowledge that
Development of the Project may require Subsequent Development Approvals.
OWNER may determine that changes in the existing Development Approvals or
Development Plan are appropriate and desirable. In the event OWNER finds that
such a change is appropriate or desirable, OWNER may apply in writing for an
amendment to Development Approvals or the Development Plan to effect such
change and the application shall be processed for approval by County. CITY shall
expressly permit and authorize modifications of any proposed changes in the
existing Development Approvals or Development Plan unless the proposed
modifications:
(a) would materiallyreduce the amount of open space intended for dedication
to the public, or
(b) would materially alter the cost of providing municipal services to the
Property subsequent to annexation, or
(c) would materially reduce the amount of property tax or other revenue
available to the CITY after annexation, or
(d) would materially increase the density and /or intensity of development
allowed in the Project as a whole, resulting in unacceptable intersection
impacts outside of the Project that cannot be mitigated pursuant to the
CITY's Traffic Phasing Ordinance.
Any change in the Development Approvals or Development,Plan made in
accordance with the procedures required by the Land Use Regulations and with
the written consent of the OWNER shall be conclusively deemed to be consistent
with this Agreement, without any further need for any amendment to this
Agreement or any of its Exhibits.
4.5 Continuation of Irvine Coast Development Agreement. CITY
acknowledges and agrees that the County Development Agreement entered into
between OWNER and County shall continue to govern the rights and obligations
of OWNER and County with respect to the Coastal Zone Area preceding
annexation, and following annexation to the maximum extent permitted pursuant
..:to the joint powers agreement or similar arrangement. If for any. reason this
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Agreement is found to be invalid or unenforceable or OWNER's ability to proceed
with the Development Plan is impaired or delayed for any reason, then the
Coastal Zone Area shall be and remain subject to the terms and protections of the
Irvine Coast Development Agreement.
4.6 Monitoring of Project. City shall, subsequent to annexation of all
or a portion of the Property, have the right, pursuant to a standard right of entry
permit issued by OWNER, to enter the Property for the limited purpose of ensuring
that development of the Property proceeds in substantial compliance with the
Development Approvals and all conditions to those approvals that are material to
the issue of water quality and aesthetics. OWNER shall designate a Project
Manager to provide CITY with access to all grading and building plans and
specifications at or before submittal to the County. CITY shall conduct all
monitoring activities in a manner that does not unduly burden OWNER's rights to
develop the Property in compliance with Development Approvals. Any report
prepared pursuant to monitoring shall be lodged with the City Manager and City
shall provide OWNER with the opportunity to review and comment on the report
prior to submittal to the City Manager. The monitoring authorized by this
Subsection is not intended, and shall not be construed, to create any procedure,
right or process on the part of the CITY to review or evaluation the development of
the Property: City shall make available to any person, upon request, any report or
document lodged with the City Manager that is prepared by any professional
retained to conduct the monitoring authorized by this Section.
5. FINANCING OF PUBLIC IMPROVEMENTS AFTER ANNEXATION.
5.1 Formation of Financing Districts. If so requested by OWNER,
CITY will cooperate in the formation of any special assessment district, community
facilities district or alternate financing mechanism ( "CFD ") to pay for the
construction, acquisition, and /or maintenance and operation of public and /or
quasi - public infrastructure, lighting, landscape, or any other public facilities
required as part of the Development Approvals; provided, however, CITY shall
have no obligation to authorize or to cause any such CFD to issue debt or sell
bonds.prior.3o the completion of the annexation of the Property to CITY., In the
event that such a CFD is formed and sells bonds to pay for the construction or
acquisition of public or quasi - public facilities which were provided, in whole or in
part, by OWNER, OWNER may be reimbursed from such bonds to the extent that
OWNER has spent funds or dedicated land for the establishment of such facilities
and creation of the CFD. While it is acknowledged that this Agreement cannot
require CITY or the City Council to form any such CFD or to issue and sell bonds,
CITY represents that it can, and does hereby, agree that it shall not refuse
OWNER's request to form such a CFD and to issue and sell bonds following
completion of annexation of the Property to CITY, except for good and reasonable
cause. In no event shall CITY have any obligation or duty to refinance, repay,
reduce the:amount of, or assume any financial relationship to, any bonds or other
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debt issued by any CFD prior to annexation.
5.2 OWNER's Right to Construct Facilities. It is understood and
agreed that, subject to CITY or County review and approval of plans and
specifications, as appropriate, the OWNER may elect, and reserves the right, to
construct, or cause the construction of, any public or quasi - public facility for which
the CITY intends to collect a fee, and to dedicate the completed facility to the
CITY, in lieu of payment of the fee.
6. REVIEW FOR COMPLIANCE FOLLOWING ANNEXATION.
6.1 Periodic Review. Following annexation of all or any portion of the
Property, the City Council shall review this Agreement annually, on or before the
anniversary of the Effective Date, in order to ascertain the good faith compliance
by OWNER with the terms of the Agreement. As part of that review, OWNER
shall submit an annual monitoring review statement describing its actions in
compliance with this Agreement, in a form acceptable to the City Manager, within
30 days after written notice from the City Manager requesting that statement. The
statement shall be accompanied by an annual review and administration fee
sufficient to defray the estimated costs of review and administration of the
Agreement during the succeeding year. The amount of the annual review and
administration fee shall be set annually by resolution of the City Council.
6.2 Special Review. The City Council may order a special review of
compliance with this Agreement at any time at CITY's sole cost. OWNER shall
cooperate with the CITY in the conduct of such special reviews.
6.3 Procedure. In connection with any periodic or special review, each
party shall have a reasonable opportunity to assert matters which it believes have
not been undertaken in accordance with the Agreement, to explain the basis for
such assertion, and to receive from the other party a justification of its position on
such matters. If on the basis of the parties' review of any terms of the Agreement,
either party concludes that the other party has not complied in good faith with the
terms of the-Agreement, then such party may issue a written "Notice of
Non- Compliance" specifying the grounds therefor and all facts demonstrating such
non - compliance. The party receiving a Notice of Non - Compliance shall have thirty
(30) days to respond in writing to said Notice. If the response to the Notice of
Non - Compliance has not been received in the offices of the party alleging the
default within the prescribed time period, the Notice of Non - Compliance shall be
conclusively presumed to be valid. If a Notice of Non - Compliance is contested,
the parties shall have up to sixty (60) days to arrive at a mutually acceptable
resolution of the matter(s) occasioning the Notice. In the event that the parties are
not able to arrive at a mutually acceptable resolution of the matter(s) by the end of
the sixty (60) day period, the party alleging the non - compliance may thereupon
pursue the remedies provided in Section 7.
Page 15 of 23
6.4 Certificate of Agreement Compliance. If, at the conclusion of a
periodic or special review, OWNER is found to be in compliance with this
Agreement, CITY shall, upon request by OWNER, issue a Certificate of
Agreement Compliance ( "Certificate ") to OWNER stating that after the most recent
Periodic or Special Review and based upon the information known or made
known to the City Manager and CITY Council that (1) this Agreement remains in
effect and (2) OWNER is not in default. The Certificate shall be in recordable
form, shall contain information necessary to communicate constructive record
notice of the finding of compliance, shall state whether the Certificate is issued
after a Periodic or Special Review and shall state the anticipated date of
commencement of the next Periodic Review. OWNER may record the Certificate
with the County Recorder. Additionally, OWNER may at any time request from
the CITY a Certificate stating, in addition to the foregoing, which obligations under
this Agreement have been fully satisfied with respect to the Property, or any lot or
parcel within the Property.
7. DEFAULT AND REMEDIES.
7.1 Specific Performance Available. The parties acknowledge that
money damages and remedies at law generally are inadequate and specific
performance is a particularly appropriate remedy for the enforcement of this
Agreement and should be available to OWNER and CITY because due to the
size, nature and scope of the Project, it may not be practical or possible to restore
the Property to its natural condition once implementation of this Agreement has
begun. After such implementation, OWNER and/or CITY. may be foreclosed from
other choices it may have had to utilize or condition the Property or portions
hereof. OWNER 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, such that it would be extremely difficult to determine the sum of
money which would adequately compensate.. OWNER and /or CITY for such .. .
efforts. Except as provided in the Section 7.2 below, neither OWNER nor CITY
shall be entitled to any money damages, including attorney fees, from the other
party by reason of any default under this Agreement.
7.2 Restitution of Improper Development Fees. In the event any
Development fees or taxes are imposed on Development of the Property other
than those authorized pursuant to this Agreement, OWNER shall be entitled to
recover from CITY restitution of all such improperly assessed fees or taxes,
together with interest thereon at the maximum allowable non - usurious rate from
the date such sums were paid to CITY to the date of restitution.
Page 16 of 23
7.3 Termination of Agreement.
7.3.1 Termination of Agreement for Default of OWNER. CITY in its
discretion may terminate this Agreement as to any non - annexed portions of
the Property for any failure of OWNER to perform any material duty or
obligation of OWNER hereunder or to comply in good faith with the terms of
this Agreement related to its annexation (hereinafter referred to as
"default'); provided, however, CITY may terminate this Agreement pursuant
to this Section only after following the procedure set forth in Section 6.3
and thereafter providing written notice to OWNER of the default setting
forth the nature of the default and the actions, if any, required by OWNER
to cure such default and, where the default can be cured, OWNER has
failed to take such actions and cure such default within 30 days after the
effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.2 Termination of Agreement for Default of CITY. OWNER in its
discretion may terminate this Agreement by written notice to CITY after the
default by CITY in the performance of a material term of this Agreement
and only after following the procedure set forth in Section 6.3 and thereafter
providing written notice by OWNER thereof to CITY and, where the default
can be cured, the failure of CITY to cure such default within 30 days after
the effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.3 Rights and Duties Following Termination. Upon the termination of
this Agreement, no party shall have any further right or obligation
hereunder except with respect to (i) any obligations to have been
performed prior to said termination, (ii) any default in the performance of
the provisions of this Agreement which has occurred prior to said
- termination, or (iii) obligations that have vested through the annexation of
the Property, or any annexed portion thereof.
7.4 OWNER's Right To Terminate Upon Specified Events.
Notwithstanding any other provisions of this Agreement to the contrary, OWNER
retains the right to terminate this Agreement (but not the provisions of Section 3)
upon thirty (30) days written notice to CITY in the event that OWNER reasonably
determines that continued Development of the Project consistent with the
Development Plan has become economically infeasible due to changed market
conditions, increased Development costs, burdens imposed as conditions to
future discretionary approvals of the Project consistent with this Agreement, or
similar factors.
Page 17 of 23
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8. THIRD PARTY LITIGATION.
CITY shall promptly notify OWNER of any claim, action or proceeding filed and
served against CITY to challenge, set aside, void, annul, limit or restrict the
approval and continued implementation and enforcement of this Agreement.
CITY and OWNER agree to cooperate in the defense of such action(s).
9. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit OWNER, it
any manner, at OWNER's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Property. CITY
acknowledges that the lenders providing such financing may require certain
Agreement interpretations and modifications and agrees upon request, from time
to time, to meet with OWNER and representatives of such lenders to negotiate in
good faith any such request for interpretation or modification. Subject to
compliance with applicable laws, CITY will not unreasonably withhold its consent
to any such requested interpretation or modification provided such interpretation
or modification is consistent with the intent and purposes of this Agreement. Any
Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by
law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, has submitted a request
in writing to the CITY in the manner specified herein for giving notices,
shall be entitled to receive written notification from CITY of any default by
OWNER in the performance of OWNER's..obligations under this
Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of
any notice of default given to OWNER under the terms of this Agreement,
CITY shall provide a copy of that notice to the Mortgagee within ten (10)
days of sending the notice of default to OWNER. The mortgagee shall
have the right, but not the obligation, to cure the default during the
remaining cure period allowed such party under this Agreement.
Page 18 of 23
(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed
in lieu of such foreclosure, shall take the Property, or part thereof, subject
to the terms of this Agreement. Notwithstanding any other provision of
this Agreement to the contrary, no Mortgagee shall have an obligation or
duty under this Agreement to perform any of OWNER's obligations or
other affirmative covenants of OWNER hereunder, or to guarantee such
performance; except that (i) to the extent that any covenant to be
performed by OWNER is a condition precedent to the performance of a
covenant by CITY, the performance thereof shall continue to be a
condition precedent to CITY's performance hereunder, and (ii) in the
event any Mortgagee seeks to develop or use any portion of the Property
acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu
of foreclosure, such Mortgagee shall strictly comply with all of the terms,
conditions and requirements of this Agreement and the Development
Plan applicable to the Property or such part thereof so acquired by the
Mortgagee.
10. MISCELLANEOUS PROVISIONS.
10.1 Term of Agreement. Following completion of the annexation of the
Property, or any portion thereof, to the. CITY within the preceding time periods,
this Agreement shall continue in full force and effect with respect to such annexed
land for a period of fifteen (15) years from the effective date of that annexation.
10.2 Recordation of Agreement. This Agreement shall be recorded with
the County Recorder by the City Clerk upon annexation of the Property to CITY
within the period required by Section 65868.5 of the Government Code. Similarly,
amendments approved by the parties, and any cancellation, shall also be
recorded.
10.3 Entire Agreement. This Agreement sets forth and contains the
entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary. covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony
or evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the
terms or conditions of this Agreement.
10.4 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, then this
Agreement shall terminate in its entirety, unless the parties otherwise agree in
writing, which agreement shall not be unreasonably withheld.
Page 19 of 23
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10.5 Interpretation and Governing Law. This Agreement and any
dispute arising hereunder shall be governed and interpreted in accordance with
the laws of the State of California. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and
purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party or in favor of CITY shall
not be employed in interpreting this Agreement, all parties having been
represented by counsel in the negotiation and preparation hereof.
10.6 Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect any construction or
interpretation of this Agreement.
10.7 Singular and Plural. As used herein, the singular of any word
includes the plural.
10.8 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
10.9 Waiver. Failure of a party to insist upon the strict performance of
any of the provisions of this Agreement by the other party, or the failure by a party
to exercise its rights upon the default of the other party, shall not constitute a
waiver of such party's right to insist and demand strict compliance by the other
party with the terms of this Agreement thereafter.
10.10 Third Party Beneficiaries. This Agreement is made and entered
into for the sole protection and benefit for the parties and their successors and
assigns. No other person shall have any right of action based upon any provision
of this Agreement; provided, however, that the fee owners of any non - residential
parcels in the annexation area may elect to be covered by this Agreement.
10.11 Force Majeure. 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 by earthquakes, other Acts of God, fires, wars, riots or
similar hostilities, strikes and other labor difficulties beyond.the party's control
(including the party's employment force), government regulations, court actions
(such as restraining orders or injunctions), or other causes beyond the party's
control. If any such events shall occur, the term of this Agreement and the time
for performance shall be extended for the duration of each such event, provided
that the term of this Agreement shall not be extended under any circumstances for
more than five (5) years.
Page 20 of 23
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10.12 Mutual Covenants. The covenants contained herein ar6mutual
covenants and also constitute conditions to the concurrent or subsequent
performance by the party benefited thereby of the covenants to be performed
hereunder by such benefited party.
10.13 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same
effect as if all of the parties had executed the same instrument.
10.14 Jurisdiction and Venue. Any action at law or in equity arising
under this Agreement or brought by any party hereto 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,
and the parties hereto waive all provisions of law providing for the filing, removal
or change of venue to any other court.
10.15 Project as a Private Undertaking. It is specifically understood and
agreed by and between the parties hereto that the Development of the Project is a
private Development, that neither party is acting as the agent of the other in any
respect hereunder, and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this Agreement. No
partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and OWNER is that of a
government entity regulating the Development of private property and the owner
of such property.
10.16 Further Actions and Instruments. Each of the parties shall
cooperate with and provide reasonable assistance to the other to the extent
contemplated hereunder in the performance of all obligations under this
Agreement and the satisfaction of the conditions of this Agreement. Upon the
request of either party at any time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such
required instruments and writings and take any actions as may be reasonably
necessary under the terms of this Agreement to carry out the intent and to fulfill
the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement. Subject to Section 3 above, OWNER will
cooperate with the CITY in the processing of the annexation of the Project through
the Local Agency Formation Commission including advocating the application of
the existing AB 8 Master Property Tax Transfer Agreement. OWNER
acknowledges the importance of maintaining the fiscal benefits of the Project
assuming that the current method of allocating sales tax revenues (i.e., point of
sale) is utilized. OWNER will consult with the CITY regarding legislative proposals
to adjust this procedure with the goal of supporting CITY efforts to maintain the
fiscal benefits of the Project through the legislative process.
Page 21 of 23
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10.17 Eminent Domain. No provision of this Agreement shall be
construed to limit or restrict the exercise by CITY of its power of eminent domain.
10.18 Amendments in Writing /Cooperation. This Agreement may be
amended only by written consent of both parties specifically approving the
amendment and in accordance with the Government Code provisions for the
amendment of Development Agreements. The parties shall cooperate in good
faith with respect to any amendment proposed in order to clarify the intent and
application of this Agreement, and shall treat any such proposal on its own merits,
and not as a basis for the introduction of unrelated matters.
10.19 Authority to Execute. The person or persons executing this
Agreement on behalf of OWNER warrants and represents that hetthey have the
authority to execute this Agreement on behalf of his /their corporation, partnership
or business entity and warrants and represents that he /they has/have the authority
to bind OWNER to the performance of its obligations hereunder.
10.20 Notice. All notices, demands, requests or approvals to be given
under this Agreement shall be given in writing and shall be deemed served when
delivered personally or on the third business day after deposit in the United States
mail, postage prepaid, first class mail, addressed as follows:
All notices, demands, requests or approvals to CITY shall be addressed to
CITY at:
City of Newport Beach
City Manager's Office
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92658 -8915
All notices, demands, requests or approvals to OWNER shall be addressed
to OWNER at:
Vice President of Entitlements
The Irvine Company
550 Newport Center Drive
Newport Beach, California 92660
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
Page 22 of 23
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CITY: CITY OF NEWPORT BEACH
By
GAROLD B. ADAMS, Mayor
ATTEST:
By
LaVonne Harkless, City Clerk
APPROVED AS TO FORM:
By
Robert Burnham, City Attorney
(SEAL)
OWNER: THE IRVINE COMPANY
By
Title
By
Title
OWNER: IRVINE COMMUNITY
DEVELOPMENT COMPANY
By
Title
By
Title
Page 23 of 23
C�
U'l CITY of NEWPO B EACH 1 3 PLANNING DEPARTMENT Hearin¢ Date: July 10, 2001
3300 NEWPORT BOULEVARD Aeenda Item No.: 3
NEWPORT BEACH, ca+ yw5s Staff Person: Patrick J. Alford
(949) 644-3200; FAX (949) 644-3250 BY THEOM64&4}23tt5,
JDCITY OFN�IJ?�; ?:r:��`,C
I 1n
REPORT TO THE MAYOR AND CITY COUNCIL '' LUV�
SUBJECT: Newport Coast Annexation and Development
SUMMARY: Introduction of an ordinance adopting an annexation and development
agreement between the City and the Irvine Company approved by the City
Council on June 26, 2001.
ACTION: Introduce Ordinance No. 2001 - adopting Development Agreement No. 14
and pass to second reading on July 24, 2001.
Backeround
On September 21, 2000, the Planning Commission recommended that the City Council approve an
annexation and development agreement concerning development of the Newport Coast and adjacent
areas. The City Council adopted the Annexation and Development Agreement (DA No. 14) on
October 24, 2000.
On June 21, 2001, the Planning Commission recommended that the City Council approve an amended
Annexation and Development Agreement. The City Council approved the amended Annexation and
Development Agreement on June 26, 2001.
Analysis
The City Council approved the Annexation and Development Agreement (DA No. 14) at a duly
noticed pubic hearing, pursuant to Chapter 15.45 of the Municipal Code (Development Agreements).
However, Section 65867.5 of the Government Code establishes that development agreements are
legislative acts that must be approved by ordinance. Therefore, in order to adopt the ordinance in a
manner consistent with State law, the City Council will need to introduce the attached ordinance
adopting Development Agreement No. 14 and pass to second reading on July 24, 2001.
Submitted by: Prepared by:
SHARON Z. WOOD PATRICK J. ALFORD
Assistant City Manager Senior Planner
Exhibit: Draft ordinanc ' Development Agreement No. 14 attached as Exhibit A.
0
ORDINANCE 2001-
0
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH ADOPTING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF NEWPORT
BEACH AND THE IRVINE COMPANY [DEVELOPMENT
AGREEMENT N0.14[
The City Council of the City of Newport Beach DOES HEREBY ORDAIN as follows:
SECTION 1. The City Council finds and declares that:
a. The State Legislature and the City Council have determined that the lack of certainty
in the approval of development projects can result in a waste of resources, escalate
the cost of housing and other development to the consumer, and discourage
investment in and commitment to the comprehensive planning which would make
maximum efficient utilization of resources at the least economic cost to the public;
and
b. Assurance that an applicant may proceed with a project in accordance with existing
policies, rules and regulations, and subject to conditions of approval, will strengthen
the public planning process, encourage private participation in comprehensive
planning, and reduce the economic costs of development; and
C. California government Code Section 65864 et seq. authorizes cities to enter into
development agreements with any person having a legal or equitable interest in
property for the development of the property; and
d. Chapter 15.45 of the Newport Beach Municipal code provides requirements and
procedures for the amendment of development agreements; and
e. The Development Agreement has been prepared in compliance with state law and
the Newport Beach Municipal Code; and
f. On September 21, 2000, the Planning Commission of the City of Newport Beach
held a duly- noticed public hearing regarding the proposed Development Agreement
and; and
g. The Planning Commission found that the Development Agreement is in
conformance with the Newport Beach General Plan, as proposed by accompanying
General Plan Amendment No. 99 -3 (C), and forwarded the Development Agreement
a
0
to the City Council with a recommendation of adoption, subject to certain
amendments; and
h. On October 10, 2000 and June 26, 2001, the City Council of the City of Newport
Beach held duly- noticed public hearings regarding the proposed Development
Agreement, and testimony was presented to and considered by the City Council; and
i. Pursuant to the California Environmental Quality Act (CEQA), the City has
completed an Initial Study, determined that the impacts of the subject Development
Agreement have been fully evaluated in previously certified Environmental Impact
Reports, that the conditions to the preparation of a Subsequent or Supplemental EIR
do not exist, and that a Negative Declaration is appropriate; and
j. The Development Agreement will preserve the benefits of years of land use planning
and open space - habitat preservation efforts, while establishing ultimate City control
of the area.
SECTION 2. Development Agreement No. 14, attached hereto as Exhibit A, is hereby adopted.
SECTION 3. The Mayor shall sign and the City Council 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 July 10, 2001, and adopted on July 24, 2001 by the following vote, to wit:
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AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
k
0
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ANNEXATION AND DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
AND
THE IRVINE COMPANY
AND
IRVINE COMMUNITY DEVELOPMENT COMPANY
CONCERNING THE NEWPORT COAST
AND ADJACENT PROPERTIES
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ANNEXATION AND DEVELOPMENT AGREEMENT
This Annexation and Development Agreement (hereinafter "Agreement') is
entered into effective as of July _ 2001, (hereinafter the "Effective Date ") by and
among the CITY OF NEWPORT BEACH (hereinafter "CITY "), and THE IRVINE
COMPANY and IRVINE COMMUNITY DEVELOPMENT COMPANY (hereinafter
collectively "OWNER ").
RECITALS
A. OWNER collectively owns a substantial portion of the real property
( "Property") described on Exhibit "A" and depicted on Exhibit "B," consisting of
approximately 5,615 acres.
B. The Property is currently in the unincorporated area of the County of
Orange ( "County "). OWNER has obtained development approvals from the
County and the California Coastal Commission for the majority of the Property
from the County and has commenced subdivision and development of the
Property under the jurisdiction of the County.
C. The development approvals for the Property have been granted after
a lengthy planning process that involved the careful review of numerous
environmental documents (Planning and Environmental History is attached as
Exhibit C). The development approvals include:
The County of Orange Newport Coast Local Coastal Program and
Master.Coastal Development Permit for that portion of the Property
in the Coastal Zone.
2. A Development Agreement with the County (County Development
Agreement).
3. The Newport Ridge Planned Community Plan.
4. Subdivision Maps.
D. The Property is also part of the Natural Communities Conservation
Plan (NCCP) — a complex agreement that requires OWNER to dedicate portions
of the Property upon completion of certain phases of development. OWNER is
also required to dedicate large portions of the Property pursuant to the
development approvals.
Page 2 of 23
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E. OWNER was required, by the development approvals, to make
costly infrastructure improvements far in excess of those necessary to mitigate the
impacts, or serve the needs, of the development. OWNER was required to make,
and has made, these extraordinary improvements prior to development of the
Property.
F. OWNER has acquired a fully vested right to develop the Property in
accordance with the development approvals because of the extraordinary
expenditures for public and private improvements made in reliance on the
development approvals, the dedications made in reliance on the development
approvals and the County Development Agreement.
G. CITY and OWNER intend for this Agreement to fully conform to the
development approvals and to fully facilitate full implementation of the Project, as
conditioned. To the maximum extent permitted by law, this Agreement is intended
to be the functional equivalent of, or supplement, the County Development
Agreement in light of the CITY's intention to delegate to the County all municipal
land use authority over the Property until such time as the Project is complete.
H. City is desirous of annexing the Property but recognizes that the
development approvals for the Property involve complex and interrelated planning
documents. CITY does not have sufficient staff to timely process the permits
required for implementation of the Project in compliance with all the development
approvals. Moreover, the development approvals and land use plan involve the
dedication of valuable habitat and open space within and outside of the
boundaries of the Property and City does not have the personnel and expertise to
ensure that dedications occur as planned.
I. CITY and OWNER have discussed the process and terms and
conditions of annexing the Property to CITY, and each has determined that it is in
their respective best interests to pursue that annexation pursuant to the terms of
this Agreement and the development approvals. In particular CITY desires
assurances that OWNER will support eventual annexation of all of the Property to
CITY, in order to:
(a) Facilitate the timely and orderly integration of the Property into the CITY
consistent with the CITY's sphere of influence;
(b) Facilitate planning and provision of municipal services to the Property
without any adverse fiscal impact on the CITY or the ultimate owners of
the property; and
(c) ensure consistency with and implement the CITY's General Plan.
At the same time, OWNER desires to obtain assurances from CITY that,
subsequent to annexation:
Page 3 of 23
•
(a) OWNER will still be able to develop the Property to the full extent
permitted by the development approvals granted by the County and the
Coastal Commission subject to conditions of approval imposed by the
Coastal Commission and the County and and consistency with the
City's General Plan;
(b) Development will be processed by the County in accordance with a
uniform set of land use and building rules, regulations and
requirements, as established by the development approvals given by
the County for the Property prior to its annexation; and
(c) Development of the Property will be subject only to costs, fees,
processing requirements, conditions or exactions that would have been
imposed had the Property not been annexed to CITY.
J. In addition to the authority at common law for annexation
agreements, Government Code Sections 65864 et seq. ( "Development
Agreement Law "), and Chapter 15.45 of the Newport Beach Municipal Code
authorize CITY to enter into binding development agreements with persons having
a legal or equitable interest in real property. This Agreement is consistent with the
public policy that supports development agreements in that it strengthens the
public planning process, facilitates implementation of comprehensive planning,
provides significant public benefits, and reduces the economic costs of
development.
K. The City Council has found that this Agreement is in the best public
interest of the CITY and its residents, adopting this Agreement constitutes a
present exercise of its police power, and this Agreement is consistent with the
City's General Plan and the Newport Beach Municipal Code Chapter.
L. This Agreement is not intended to, and shall not be construed, to
impair the rights and obligations of OWNER, or other involved parties under and
pursuant to the Newport Coast Local Coastal Program, Second Amendment, and
the Litigation Settlement Agreement entered into June 27, 1997, by and among
OWNER, the Friends of the Irvine Coast, Laguna Greenbelt, Inc., and Stop
Polluting Our Newport.
Page 4 of 23
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COVENANTS
NOW, THEREFORE, the Parties agree as follows:
DEFINITIONS AND EXHIBITS.
1A Definitions. This Agreement uses a number of terms having
specific meanings, as defined below. These specially defined terms are
distinguished by having the initial letter capitalized, or all letters capitalized, when
used in the Agreement. The defined terms include the following:
1.1.1 "Agreement' means this Annexation and Development Agreement.
1.1.2 "Coastal Zone Area" means that portion of the Property that is
subject to the provisions of the California Coastal Act, Public Resources
Code section 30000 et seq.
1.1.3 "CITY" means the City of Newport Beach, a California charter city.
1.1.4 "County' means the County of Orange, a political subdivision of the
State of California.
1.1.5 "Development' whether or not capitalized means the improvement of
the Property for the purposes of completing the structures, improvements
and facilities comprising the Project 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 buildings
and structures; and the installation of landscaping and park facilities and
improvements. For purposes of this Agreement, however, "Development"
does not include any remodeling, reconstruction, or other building or
grading activity by any person subsequent to the termination of this
Agreement as provided in and pursuant to Section 2.3.3 below.
1. 1.6 "Development Approvals" means all permits, licenses, consents,
rights and privileges, and other actions subject to approval or issuance by
County or CITY in connection with Development of the Property, including
but not limited to:
(a) General plans and general plan amendments adopted by the County
or the CITY;
(b) Specific plans and specific plan amendments;
(c) Zoning and rezoning adopted by the County or the CITY;
(d) Tentative and final subdivision and parcel maps;
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(e) Variances, conditional use permits, master plans, public use permits
and plot plans; and
(f) Grading and building permits.
1.1.7 "Development Plan" means the plan for Development of the
Property, including without limitation the planning and zoning standards,
regulations, and criteria for the Development of the Property, contained in
and consistent with the Development Approvals. The components of the
Development Plan are more fully described in Exhibit "D."
1.1.8 "Effective Date" means the date this Agreement is approved by the
CITY as shown in the first paragraph.
1.1.9 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies governing Development and use of
land applicable to the Property pursuant to this Agreement, including,
without limitation, the permitted use of land, the density or intensity of use,
subdivision requirements, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and
specifications applicable to the Development of the Property. "Land Use
Regulations" does not include any CITY ordinance, resolution, code, rule,
regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) except as provided in Section 4.9 below, taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public
property; and
(e) the exercise of the power of eminent domain
1.1.10 "OWNER" means individually and collectively The Irvine Company
and Irvine Community Development Company, and where appropriate in
context their respective successors in interest to all or any part of the
Property.
1.1.11 "Mortgagee" means a mortgagee of a mortgage, a beneficiary
under a deed of trust or any other security- device, a lender and their
successors and, assigns.
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1.1.12 "Project' means the Development of the Property consistent with
the Development Plan.
1.1.13 "Property' means the real property described in Exhibit "A" and
shown on Exhibit "B" to this Agreement.
1.1.14 "Reservation of Authority' means the rights and authority excepted
from the assurances and rights provided to OWNER under this Agreement
and reserved to CITY under Section 4.6 of this Agreement.
1.1.15 "Subsequent Development Approvals" means all Development
Approvals subsequent to the Effective Date in connection with
Development of the Property.
1.1.16 "Subsequent Land Use Regulations" means any Land Use
Regulations adopted and effective after the Effective Date of this
Agreement, other than the Development Plan.
1.1.17 "Tenn" shall mean the period of time from the Effective Date until
the termination of this Agreement as provided in subsection 10.1, or earlier
termination as provided in Section 7.
1.2 Exhibits. The following documents are attached to, and by this
reference made a part of, this Agreement:
Exhibit "A" Legal Description of the Property.
Exhibit "B" Map showing Property and its
location.
Exhibit "C" Planning and Environmental History.
Exhibit "D" List of County Development Approvals.
Exhibit "E" Mitigation Measures.
Exhibit "F" Affordable Housing Implementation Plans.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. This Agreement shall be binding on
the CITY from and following the Effective Date. However, CITY shall
have no right or duty with respect to the Property until annexation of
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the Property to CITY and CITY intends, through a joint powers
agreement, ordinance or other mechanism, to delegate to the
County all municipal land use jurisdiction and all responsibility for
processing Development Approvals that the City has, or may have,
pursuant to State or local law.
2.2 Assignment by OWNER.
2.2.1 Right to Assign. OWNER shall have the right to sell,
transfer or assign the Property in whole or in part (provided that no
transfer violates the Subdivision Map Act, Government Code Section
66410, et seg.), and in so doing assign its rights and obligations
under this Agreement as the same may relate to the portion of the
Property being transferred, to any person, partnership, joint venture,
firm or corporation at any time during the term of this Agreement.
2.2.2 Release of Transferring Owner. Upon the sale,
transfer or assignment of all or a portion of the Property, the
transferring OWNER shall be released of all obligations under this
Agreement that relate to the portion of the Property being
transferred; provided that the obligations under Sections 4 and 5 of
this Agreement that relate to the portion of the Property being
transferred are assumed by and enforceable against the transferee.
2.2.3 Termination of Agreement With Respect to Individual
Residential Lots On Sale to Public and Completion of Construction.
Notwithstanding any other provisions of this Agreement, the
obligations of Owner pursuant to this Agreement shall terminate with
respect to any residential lot and such residential lot shall be
released and no longer be subject to this Agreement upon
satisfaction of both of the following conditions:
(a) The residential lot has been finally subdivided and
individually (and not in "bulk ") sold or leased (for a period
longer than one year) to a member of the public or other
ultimate user; and,
(b) A certificate of occupancy has been issued or a final
building inspection has been conducted and approved for the
primary dwelling unit on the residential lot.
2.2.4 Termination of Agreement With Respect to Non -
Residential Parcels. Notwithstanding any other provisions of this
Agreement, the obligations of Owner pursuant to this Agreement
shall terminate with respect to any non - residential parcel and the
non - residential parcel shall be released and no longer be subject to
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this Agreement at such time as the parcel has been fully improved
and occupied consistent with the allowed intensity of development
under the Development Plan.
3. PRE - ANNEXATION OBLIGATIONS AND COMMITMENTS.
3.1 Annexation of Property. Consistent with and subject to the terms
and conditions of this Agreement and specifically this Subsection, CITY
may, in one annexation proceeding or several annexation proceedings,
annex the Property under such conditions as are imposed by or through the
Orange County Local Agency Formation Commission and reasonably
acceptable to OWNER. Conditions shall be deemed to be reasonably
acceptable to OWNER unless the conditions impair or interfere with
OWNER's rights to develop or materially increase the cost of development.
OWNER's consent to annexation of all or a portion of the Property is
contingent on, and OWNER has reasonably relied on, CITY's commitments
in Section 3 and 4 of this Agreement.
3.1.1 Annexation Before Project Completion. OWNER will support
CITY's annexation of the Property in its entirety before project
completion, provided that the Property may be fully developed
to the full extent permitted in the Development Plan and as
evidenced by satisfaction of each of the following conditions:
(a) The Legislature has approved, and the Governor has
signed, legislation that clarifies provisions of the Coastal Act
such that annexation of the Property (1) will not alter or affect
the validity and enforceability of the Newport Coast Local
Coastal Program, Second Amendment, including any
amendments applicable to the Property and any related
coastal development permits; or (ii) deprive the County of
authority to issue coastal development permits pursuant to
the terms of this Agreement, any ordinance, joint powers
agreement, or other mechanism that confers municipal land
use authority to the County after annexation and the Newport
Coast Local Coastal Program, Second Amendment or any
subsequent amendments that are certified by the California
Coastal Commission;
(b) The City adopts, and maintains during the term of this
Agreement, general plan and zoning desginations for the
Property that are essentially identical to the general plan and
zoning designations adopted by the County and in effect as of
the Effective Date.
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(c) The City transfers municipal land use authority (including
the issuance of building and grading permits) to the County
pursuant to a joint powers or similar agreement and/or
ordinance until such time as the Project is complete or until
OWNER consents, in writing, to an assumption of municipal
land use authority over all or a portion of the Property.
3.1.2 Ultimate Annexation. OWNER will fully support CITY
annexation of all or a portion of the Property without
satisfying the provisions of Section 3.1.1, provided that all lots
and /or parcels to be annexed have received building permits
for construction of structure(s) consistent with the
Development Approvals, a certificate of occupancy has been
issued or a final building inspection has been conducted and
annexation will not interfere with, affect, or impair the
Development Approvals or OWNER's ability to complete the
Project.
3.2 Environmental Impacts and Mitigation. The parties acknowledge
that Environmental Impact Reports, environmental documents and functional
equivalents ( "Environmental Documents - described in Exhibit C) have been
prepared and certified for the Project by County and/or approved by the Coastal
Commission. CITY has reviewed and evaluated the Environmental Documents to
determine if the impacts of the Project, as represented by this Agreement, the
Development Plan, and the CITY approvals, were fully analyzed and evaluated.
CITY has also reviewed the Environmental Documents and all relevant existing
facts and circumstances to determine if any of the events that require preparation
of a subsequent or supplemental environmental document have occurred. CITY
has determined based on that review that none of the events described in Section
21166 of the Public Resources Code or Sections 15162 or 15163 of the CEQA
Guidelines have occurred. CITY has specifically determined that the detachment
of the Property from County and the annexation of the Property to CITY do not
require preparation of any subsequent or supplemental environmental impact
report for the Project because the reorganization will not increase, decrease, or
modify any development of dedication when compared to the entitlement prior to
annexation. CITY has also determined that, subject to incorporation of the
mitigation measures identified in Exhibit "E" and except as specifically provided in
this Agreement, there is no current or anticipated deficiency in any municipal
service or facility (including without limitation planned community and
neighborhood parks, drainage and flood control facilities, circulation system
infrastructure, and public safety services) resulting from Development of the
Project. The mitigation measures identified in Exhibit "E" are incorporated by
reference into the Development Plan.
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3.3 Additional Pre - Annexation Understandings. As a further
inducement to OWNER to support the annexation of the Property to CITY, CITY
agrees that, as of the date of its approval of this Agreement. CITY acknowledges
that all County affordable housing requirements associated with development of
the Property have been satisfied. CITY also acknowledges that the OWNER has
a vested right to proceed with development pursuant to the County Agreement
and that no additional affordable housing requirements shall be imposed on
development of the Property pursuant to the CITY's General Plan or otherwise.
The Affordable Housing Implementation Plans approved by the County, describing
the manner in which affordable housing requirements have been satisfied for
development of the Property, are attached to this Agreement as Exhibit "F." Fees
payable upon issuance of any development permit (e.g., building permit or
occupancy permit) will be paid to the issuer of the permit in accordance with
County Codes, fee schedules and requirements for original improvements.
Following annexation, fees shall continue to be paid to the issuer in accordance
with the codes and requirements for additions, remodels and rebuilds of the
jurisdiction with land use authority.. CITY agrees that the Project is in full
compliance with, and shall not be further subject to, CITY's Traffic Phasing
Ordinance following annexation of the Property, CITY having determined through
this Agreement that:
a. Development of the Property will not cause or make worse any
unsatisfactory level of service at any critical intersection as defined in the
Traffic Phasing Ordinance;
b. Development of the Property has been considered a committed project
which has been incorporated into the CITY's traffic model and Circulation
Element traffic projections and all resulting levels of service have been
accepted in the Circulation Element; and
c. There is an overall reduction in peak hour ICU at impacted intersections
having unsatisfactory levels of service taking into account the circulation
improvements constructed or facilitated by OWNER pursuant to
conditions imposed for development of the Project, including
construction of Newport Coast Drive, extension of San Joaquin Hills
Road, widening of Pacific Coast Highway, and facilitation of construction
of the San Joaquin Hills Transportation Corridor.
3.4 Cooperation. Subject to and in reliance upon the representations
and covenants of the CITY herein, OWNER will support the annexation of the
Property by the CITY.
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3.5 Termination of Annexation Proceedings. This Agreement may be
terminated by OWNER in the event that CITY fails to comply with the
requirements of Paragraph 3.1 above with respect to any proposed annexation of
Property to CITY, or if conditions imposed by or through the Local Agency
Formation Commission on the annexation are determined by either party to
conflict materially with its rights and obligations under any provision of this
Agreement.
4. DEVELOPMENT OF THE PROPERTY UPON ANNEXATION AND
ADOPTION OF THE DEVELOPMENT PLAN.
Following annexation of the Property by CITY, the following provisions shall apply:
4.1 Rights to Develop. Subject to the terms of this Agreement,
following annexation of the Property OWNER shall have a vested right to develop
the Property in accordance with, and to the extent of, the Development Plan.
Pending annexation to CITY, OWNER shall have the right to seek approvals from
County for the Development of the Property, and to develop the Property,
consistent with the Development Plan. CITY expressly agrees to take no action
that would or could (a) interfere with or impair the Development Approvals; (b)
interfere with or impair the OWNER's ability to complete the project; (c) materially
increase the cost of completing the project without the OWNER's express written
consent; or (d) cause the transfer of any permitting or development review
authority pursuant to State or local law, including Government Code section
30519, from the County to the City or any other agency until such time as that
portion of the Property affected by the transfer is fully developed pursuant to the
Development Plan and provided the transfer would not interfere or impair
OWNER's ability to develop any other portion of this Property.
4.2 Effect of Agreement on Land Use Regulations. Except as
otherwise provided under the terms of this Agreement, the rules, regulations and
official policies governing permitted uses of the Property, the density and intensity
of use of the Property, the maximum height and size of proposed buildings, and
the design, improvement and construction standards and specifications applicable
to Development of the Property, shall be those contained in the Development Plan
and those Land Use Regulations not inconsistent with the Development Plan and
that were in full force and effect as of June 26, 2001.
4.3 Timing of Development. The parties acknowledge that OWNER
cannot at this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors which are not within
the control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v City of Camarillo (1984) 37 Cal. 3d 465,
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that the failure of the parties therein to provide for the timing of Development
resulted in a later adopted initiative restricting the timing of Development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by
acknowledging and providing that OWNER shall have the right to develop the
Property in such order and at such rate and at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Nothing in this
section is'intended to alter the standard durational limits of any permits issued to
OWNER pursuant to Development Approvals.
4.4 Changes and Amendments. The parties acknowledge that
Development of the Project may require Subsequent Development Approvals.
OWNER may determine that changes in the existing Development Approvals or
Development Plan are appropriate and desirable. In the event OWNER finds that
such a change is appropriate or desirable, OWNER may apply in writing for an
amendment to Development Approvals or the Development Plan to effect such
change and the application shall be processed for approval by County. CITY shall
expressly permit and authorize modifications of any proposed changes in the
existing Development Approvals or Development Plan unless the proposed
modifications:
(a) would material lyred uce the amount of open space intended for dedication
to the public, or
(b) would materially alter the cost of providing municipal services to the
Property subsequent to annexation, or
(c) would materially reduce the amount of property tax or other revenue
available to the CITY after annexation, or
(d) would materially increase the density and /or intensity of development
allowed in the Project as a whole, resulting in unacceptable intersection
impacts outside of the Project that cannot be mitigated pursuant to the
CITY's Traffic Phasing Ordinance.
Any change in the Development Approvals or Development Plan made in
accordance with the procedures required by the Land Use Regulations and with
the written consent of the OWNER shall be conclusively deemed to be consistent
with this Agreement, without any further need for any amendment to this
Agreement or any of its Exhibits.
4.5 Continuation of Irvine Coast Development Agreement. CITY
acknowledges and agrees that the County Development Agreement entered into
between OWNER and County shall continue to govern the rights and obligations
of OWNER and County with respect to the Coastal Zone Area preceding
annexation, and following annexation to the maximum extent permitted pursuant
to the joint powers agreement or similar arrangement. If for any reason this
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Agreement is found to be invalid or unenforceable or OWNER's ability to proceed
with the Development Plan is impaired or delayed for any reason, then the
Coastal Zone Area shall be and remain subject to the terms and protections of the
Irvine Coast Development Agreement.
4.6 Monitoring of Project. City shall, subsequent to annexation of all
or a portion of the Property, have the right, pursuant to a standard right of entry
permit issued by OWNER, to enter the Property for the limited purpose of ensuring
that development of the Property proceeds in substantial compliance with the
Development Approvals and all conditions to those approvals that are material to
the issue of water quality and aesthetics. OWNER shall designate a Project
Manager to provide CITY with access to all grading and building plans and
specifications at or before submittal to the County. CITY shall conduct all
monitoring activities in a manner that does not unduly burden OWNER's rights to
develop the Property in compliance with Development Approvals. Any report
prepared pursuant to monitoring shall be lodged with the City Manager and City
shall provide OWNER with the opportunity to review and comment on the report
prior to submittal to the City Manager. The monitoring authorized by this
Subsection is not intended, and shall not be construed, to create any procedure,
right or process on the part of the CITY to review or evaluation the development of
the Property. City shall make available to any person, upon request, any report or
document lodged with the City Manager that is prepared by any professional
retained to conduct the monitoring authorized by this Section.
5. FINANCING OF PUBLIC IMPROVEMENTS AFTER ANNEXATION.
5.1 Formation of Financing Districts. If so requested by OWNER,
CITY will cooperate in the formation of any special assessment district, community
facilities district or alternate financing mechanism ( "CFD ") to pay for the
construction, acquisition, and /or maintenance and operation of public and/or
quasi - public infrastructure, lighting, landscape, or any other public facilities
required as part of the Development Approvals; provided, however, CITY shall
have no obligation to authorize or to cause any such CFD to issue debt or sell
bonds prior to the completion of the annexation of the Property to CITY. In the
event that such a CFD is formed and sells bonds to pay for the construction or
acquisition of public or quasi - public facilities which were provided, in whole or in
part, by OWNER, OWNER may be reimbursed from such bonds to the extent that
OWNER has spent funds or dedicated land for the establishment of such facilities
and creation of the CFD. While it is acknowledged that this Agreement cannot
require CITY or the City Council to form any such CFD or to issue and sell bonds,
CITY represents that it can, and does hereby, agree that it shall not refuse
OWNER's request to form such a CFD and to issue and sell bonds following
completion of annexation of the Property to CITY, except for good and reasonable
cause. In no event shall CITY have any obligation or duty to refinance, repay,
reduce the amount of,.or assume any financial relationship to, any bonds or other
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debt issued by any CFD prior to annexation.
5.2 OWNER's Right to Construct Facilities. It is understood and
agreed that, subject to CITY or County review and approval of plans and
specifications, as appropriate, the OWNER may elect, and reserves the right, to
construct, or cause the construction of, any public or quasi - public facility for which
the CITY intends to collect a fee, and to dedicate the completed facility to the
CITY, in lieu of payment of the fee.
6. REVIEW FOR COMPLIANCE FOLLOWING ANNEXATION.
6.1 Periodic Review. Following annexation of all or any portion of the
Property, the City Council shall review this Agreement annually, on or before the
anniversary of the Effective Date, in order to ascertain the good faith compliance
by OWNER with the terms of the Agreement. As part of that review, OWNER
shall submit an annual monitoring review statement describing its actions in
compliance with this Agreement, in a form acceptable to the City Manager, within
30 days after written notice from the City Manager requesting that statement. The
statement shall be accompanied by an annual review and administration fee
sufficient to defray the estimated costs of review and administration of the
Agreement during the succeeding year. The amount of the annual review and
administration fee shall be set annually by resolution of the City Council.
6.2 Special Review. The City Council may order a special review of
compliance with this Agreement at any time at CITY's sole cost. OWNER shall
cooperate with the CITY in the conduct of such special reviews.
6.3 Procedure. In connection with any periodic or special review, each
party shall have a reasonable opportunity to assert matters which it believes have
not been undertaken in accordance with the Agreement, to explain the basis for
such assertion, and to receive from the other party a justification of its position on
such matters. If on the basis of the parties' review of any terms of the Agreement,
either party concludes that the other party has not complied in good faith with the
terms of the Agreement, then such party may issue a written "Notice of
Non - Compliance" specifying the grounds therefor and all facts demonstrating such
non - compliance. The party receiving a Notice of Non - Compliance shall have thirty
(30) days to respond in writing to said Notice. If the response to the Notice of
Non - Compliance has not been received in the offices of the party alleging the
default within the prescribed time period, the Notice of Non - Compliance shall be
conclusively presumed to be valid. If a Notice of Non - Compliance is contested,
the parties shall have up to sixty (60) days to arrive at a mutually acceptable
resolution of the matter(s) occasioning the Notice. In the event that the parties are
not able to arrive at a mutually acceptable resolution of the matter(s) by the end of
the sixty (60) day period, the party alleging the non - compliance may thereupon
pursue the remedies provided in Section 7.
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6.4 Certificate of Agreement Compliance. If, at the conclusion of a
periodic or special review, OWNER is found to be in compliance with this
Agreement, CITY shall, upon request by OWNER, issue a Certificate of
Agreement Compliance ( "Certificate ") to OWNER stating that after the most recent
Periodic or Special Review and based upon the information known or made
known to the City Manager and CITY Council that (1) this Agreement remains in
effect and (2) OWNER is not in default. The Certificate shall be in recordable
form, shall contain information necessary to communicate constructive record
notice of the finding of compliance, shall state whether the Certificate is issued
after a Periodic or Special Review and shall state the anticipated date of
commencement of the next Periodic Review. OWNER may record the Certificate
with the County Recorder. Additionally, OWNER may at any time request from
the CITY a Certificate stating, in addition to the foregoing, which obligations under
this Agreement have been fully satisfied with respect to the Property, or any lot or
parcel within the Property.
DEFAULT AND REMEDIES.
7.1 Specific Performance Available. The parties acknowledge that
money damages and remedies at law generally are inadequate and specific
performance is a particularly appropriate remedy for the enforcement of this
Agreement and should be available to OWNER and CITY because due to the
size, nature and scope of the Project, it may not be practical or possible to restore
the Property to its natural condition once implementation of this Agreement has
begun. After such implementation, OWNER and /or CITY may be foreclosed from
other choices it may have had to utilize or condition the Property or portions
hereof. OWNER 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, such that it would be extremely difficult to determine the sum of
money which would adequately compensate OWNER and /or CITY for such
efforts. Except as provided in the Section 7.2 below, neither OWNER nor CITY
shall be entitled to any money damages, including attorney fees, from the other
party by reason of any default under this Agreement.
7.2 Restitution of Improper Development Fees. In the event any
Development fees or taxes are imposed on Development of the Property other
than those authorized pursuant to this Agreement, OWNER shall be entitled to
recover from CITY restitution of all such improperly assessed fees or taxes,
together with interest thereon at the maximum allowable non - usurious rate from
the date such sums were paid to CITY to the date of restitution.
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7.3 Termination of Agreement.
7.3.1 Termination of Agreement for Default of OWNER. CITY in its
discretion may terminate this Agreement as to any non - annexed portions of
the Property for any failure of OWNER to perform any material duty or
obligation of OWNER hereunder or to comply in good faith with the terms of
this Agreement related to its annexation (hereinafter referred to as
"default'); provided, however, CITY may terminate this Agreement pursuant
to this Section only after following the procedure set forth in Section 6.3
and thereafter providing written notice to OWNER of the default setting
forth the nature of the default and the actions, if any, required by OWNER
to cure such default and, where the default can be cured, OWNER has
failed to take such actions and cure such default within 30 days after the
effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.2 Termination of Agreement for Default of CITY. OWNER in its
discretion may terminate this Agreement by written notice to CITY after the
default by CITY in the performance of a material term of this Agreement
and only after following the procedure set forth in Section 6.3 and thereafter
providing written notice by OWNER thereof to CITY and, where the default
can be cured, the failure of CITY to cure such default within 30 days after
the effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.3 Rights and Duties Following Termination. Upon the termination of
this Agreement, no party shall have any further right or obligation
hereunder except with respect to (i) any obligations to have been
performed prior to said termination, (ii) any default in the performance of
the provisions of this Agreement which has occurred prior to said
termination, or (iii) obligations that have vested through the annexation of
the Property, or any annexed portion thereof.
7.4 OWNER's Right To Terminate Upon Specified Events.
Notwithstanding any other provisions of this Agreement to the contrary, OWNER
retains the right to terminate this Agreement (but not the provisions of Section 3)
upon thirty (30) days written notice to CITY in the event that OWNER reasonably
determines that continued Development of the Project consistent with the
Development Plan has become economically infeasible due to changed market
conditions, increased Development costs, burdens imposed as conditions to
future discretionary approvals of the Project consistent with this Agreement, or
similar factors.
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8. THIRD PARTY LITIGATION.
CITY shall promptly notify OWNER of any claim, action or proceeding filed and
served against CITY to challenge, set aside, void, annul, limit or restrict the
approval and continued implementation and enforcement of this Agreement.
CITY and OWNER agree to cooperate in the defense of such action(s).
9. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit OWNER, in
any manner, at OWNER's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Property. CITY
acknowledges that the lenders providing such financing may require certain
Agreement interpretations and modifications and agrees upon request, from time
to time, to meet with OWNER and representatives of such lenders to negotiate in
good faith any such request for interpretation or modification. Subject to
compliance with applicable laws, CITY will not unreasonably withhold its consent
to any such requested interpretation or modification provided such interpretation
or modification is consistent with the intent and purposes of this Agreement. Any
Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by
law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, has submitted a request
in writing to the CITY in the manner specified herein for giving notices,
shall be entitled to receive written notification from CITY of any default by
OWNER in the performance of OWNER's obligations under this
Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of
any notice of default given to OWNER under the terms of this Agreement,
CITY shall provide a copy of that notice to the Mortgagee within ten (10)
days of sending the notice of default to OWNER. The mortgagee shall
have the right, but not the obligation, to cure the default during the
remaining cure period allowed such party under this Agreement.
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(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed
in lieu of such foreclosure, shall take the Property, or part thereof, subject
to the terms of this Agreement. Notwithstanding any other provision of
this Agreement to the contrary, no Mortgagee shall have an obligation or
duty under this Agreement to perform any of OWNER's obligations or
other affirmative covenants of OWNER hereunder, or to guarantee such
performance; except that (i) to the extent that any covenant to be
performed by OWNER is a condition precedent to the performance of a
covenant by CITY, the performance thereof shall continue to be a
condition precedent to CITY's performance hereunder, and (ii) in the
event any Mortgagee seeks to develop or use any portion of the Property
acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu
of foreclosure, such Mortgagee shall strictly comply with all of the terms,
conditions and requirements of this Agreement and the Development
Plan applicable to the Property or such part thereof so acquired by the
Mortgagee.
10. MISCELLANEOUS PROVISIONS.
10.1 Term of Agreement. Following completion of the annexation of the
Property, or any portion thereof, to the CITY within the preceding time periods,
this Agreement shall continue in full force and effect with respect to such annexed
land for a period of fifteen (15) years from the effective date of that annexation.
10.2 Recordation of Agreement. This Agreement shall be recorded with
the County Recorder by the City Clerk upon annexation of the Property to CITY
within the period required by Section 65868.5 of the Government Code. Similarly,
amendments approved by the parties, and any cancellation, shall also be
recorded.
10.3 Entire Agreement. This Agreement sets forth and contains the
entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony
or evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the
terms or conditions of this Agreement.
10.4 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, then this
Agreement shall terminate in its entirety, unless the parties otherwise agree in
writing, which agreement shall not be unreasonably withheld.
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10.5 Interpretation and Governing Law. This Agreement and any
dispute arising hereunder shall be governed and interpreted in accordance with
the laws of the State of California. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and
purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party or in favor of CITY shall
not be employed in interpreting this Agreement, all parties having been
represented by counsel in the negotiation and preparation hereof.
10.6 Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect any construction or
interpretation of this Agreement.
10.7 Singular and Plural. As used herein, the singular of any word
includes the plural.
10.8 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
10.9 Waiver. Failure of a party to insist upon the strict performance of
any of the provisions of this Agreement by the other party, or the failure by a party
to exercise its rights upon the default of the other party, shall not constitute a
waiver of such party's right to insist and demand strict compliance by the other
party with the terms of this Agreement thereafter.
10.10 Third Party Beneficiaries. This Agreement is made and entered
into for the sole protection and benefit for the parties and their successors and
assigns. No other person shall have any right of action based upon any provision
of this Agreement; provided, however, that the fee owners of any non - residential
parcels in the annexation area may elect to be covered by this Agreement.
10.11 Force Majeure. Neither parry shall be deemed to be in default
where failure or delay in performance of any of its obligations under this
Agreement is caused by earthquakes, other Acts of God, fires, wars, riots or
similar hostilities, strikes and other labor difficulties beyond the party's control
(including the party's employment force), government regulations, court actions
(such as restraining orders or injunctions), or other causes beyond the party's
control. If any such events shall occur, the term of this Agreement and the time
for performance shall be extended for the duration of each such event, provided
that the term of this Agreement shall not be extended under any circumstances for
more than five (5) years.
Page 20 of 23
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10.12 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent
performance by the party benefited thereby of the covenants to be performed
hereunder by such benefited party.
10.13 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same
effect as if all of the parties had executed the same instrument.
10.14 Jurisdiction and Venue. Any action at law or in equity arising
under this Agreement or brought by any party hereto 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,
and the parties hereto waive all provisions of law providing for the filing, removal
or change of venue to any other court.
10.15 Project as a Private Undertaking. It is specifically understood and
agreed by and between the parties hereto that the Development of the Project is a
private Development, that neither party is acting as the agent of the other in any
respect hereunder, and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this Agreement. No
partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and OWNER is that of a
government entity regulating the Development of private property and the owner
of such property.
10.16 Further Actions and Instruments. Each of the parties shall
cooperate with and provide reasonable assistance to the other to the extent
contemplated hereunder in the performance of all obligations under this
Agreement and the satisfaction of the conditions of this Agreement. Upon the
request of either party at any time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such
required instruments and writings and take any actions as may be reasonably
necessary under the terms of this Agreement to carry out the intent and to fulfill
the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement. Subject to Section 3 above, OWNER will
cooperate with the CITY in the processing of the annexation of the Project through
the Local Agency Formation Commission including advocating the application of
the existing AB 8 Master Property Tax Transfer Agreement. OWNER
acknowledges the importance of maintaining the fiscal benefits of the Project
assuming that the current method of allocating sales tax revenues (i.e., point of
sale) is utilized. OWNER will consult with the CITY regarding legislative proposals
to adjust this procedure with the goal of supporting CITY efforts to maintain the
fiscal benefits of the Project through the legislative process.
Page 21 of 23
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10.17 Eminent Domain. No provision of this Agreement shall be
construed to limit or restrict the exercise by CITY of its power of eminent domain.
10.18 Amendments in Writing /Cooperation. This Agreement may be
amended only by written consent of both parties specifically approving the
amendment and in accordance with the Government Code provisions for the
amendment of Development Agreements. The parties shall cooperate in good
faith with respect to any amendment proposed in order to clarify the intent and
application of this Agreement, and shall treat any such proposal on its own merits,
and not as a basis for the introduction of unrelated matters.
10.19 Authority to Execute. The person or persons executing this
Agreement on behalf of OWNER warrants and represents that he /they have the
authority to execute this Agreement on behalf of his /their corporation, partnership
or business entity and warrants and represents that he /they has /have the authority
to bind OWNER to the performance of its obligations hereunder.
10.20 Notice. All notices, demands, requests or approvals to be given
under this Agreement shall be given in writing and shall be deemed served when
delivered personally or on the third business day after deposit in the United States
mail, postage prepaid, first class mail, addressed as follows:
All notices, demands, requests or approvals to CITY shall be addressed to
CITY at:
City of Newport Beach
City Manager's Office
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92658 -8915
All notices, demands, requests or approvals to OWNER shall be addressed
to OWNER at:
Vice President of Entitlements
The Irvine Company
550 Newport Center Drive
Newport Beach, California 92660
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
Page 22 of 23
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ATTEST:
By
LaVonne Harkless, City Clerk
APPROVED AS TO FORM:
By
Robert Bumham, City Attorney
(SEAL)
CITY: CITY OF NEWPORT BEACH
By
GAROLD B. ADAMS, Mayor
OWNER: THE IRVINE COMPANY
By
Title
By
Title
OWNER: IRVINE COMMUNITY
DEVELOPMENT COMPANY
By
Title
By
Title
Page 23 of 23
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• ITEM
TO: Members of the Newport Beach City Council
FROM Dave Kiff, Assistant City Manager
SUBJECT: Amendments to the Annexation and Development Agreement for the
Newport Coast
RECOMMENDED
(1) Conduct Public Hearing; and
ACTIONS:
(2) Authorize the Mayor to sign the Newport Coast Annexation and
Development Agreement as proposed to be amended.
BACKGROUND:
The Newport Coast community is an approximately 5,615 -acre area south and
east of the City limits but within the City's sphere of influence consisting of the
Newport Ridge Planned Community and the Newport Coast Local Coastal
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Program (LCP). When the Newport Coast is built out (by the mid- 2010s), the
JUN 2. -• - s
community will have about 5200 dwelling units, up to 2,150 visitor - serving
units, and two retail centers. About 4,500 people live in the Newport Coast
E
today. One retail center is currently graded and about 300 timeshare units are
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RPPR��E
either in place or under development.
On March 19, 2001, the City submitted an application to the Orange County
Local Agency Formation Commission ( LAFCO) to annex the Newport Coast.
LAFCO currently has the City's application under review and plans to set a
public hearing on the matter this summer. The anticipated effective date for the
annexation is January 1, 2002.
In preparation for the LAFCO hearing, the City has done the following:
• Adopted an Agreement between the Irvine Ranch Water District and the City
relative to water, wastewater, and reclaimed water services in the area
following any annexation Qanuary 24, 2000).
• Adopted a Resolution of Application (Resolution 2000 -81) Requesting
Initiation of Proceedings to annex the area (September 26, 2000).
• Agreed to a series of Terms and Conditions with the residents of the
Newport Coast community to be applied following any annexation
(September 26, 2000).
• Amended the City's General Plan and Pre -zoned the area (October 24, 2000).
The Planning Commission approved these same GP amendments and pre -
zoning actions on September 21, 2000.
• Adopted an Annexation and Development Agreement with The Irvine
Company regarding development in the area (October 24, 2000). The
• i
Planning Commission approved this Annexation and Development
Agreement on September 21, 2000.
• Introduced Senate Bill 516 (Johnson, 2001) clarifying the treatment of the
existing Newport Coast LCP should the City be successful in its annexation
of the Newport Coast (February 22, 2001);
• Authorized and directed LAFCO's separation of the three annexation areas
that the City initially proposed for annexation all at once, thus allowing the
Newport Coast portion of the annexation to proceed in 2001 (May S, 2001).
Actions remaining to be completed by the City include:
• Formal adoption with the County of Orange of identical resolutions
describing the Master Property Tax Transfer formulas associated with the
Newport Coast and Bay Knolls portion of the annexation.
• Adoption of a joint powers agreement (JPA) describing the relationship
between the County and the City regarding land use authority, LCP
administration, and building and grading permits after annexation. This has
been sent to the County in draft form.
• A determination as to which Councilmanic district the Newport Coast should
be added to upon annexation.
• Amendments to the City's FY 2001 -02 budget that add service responsibility
for the Newport Coast on the effective date of the annexation.
City staff and representatives of the Irvine Company believe that the Annexation
and Development Agreement between the City and the Irvine Company should
be amended to reflect recent actions relating to the annexation, including.
• The introduction of SB 516 (Johnson) relating to the Newport Coast LCP
(please see Attachment C); and
• Recent actions by the California Coastal Commission to require special water
quality treatment structures in the Crystal Cove portion of the Newport
Coast development.
Incorporating these changes also allows the parties to correct minor errors and to
improve the technical language within the Development Agreement. The
changes proposed for incorporation into the Development Agreement are
included here as Attachment A. The Development Agreement itself - in strike-
out (language deleted) and underline (language added) form is included as
Attachment B. At a June 21, 2001 noticed public hearing, the Newport Beach
Planning Commission recommended that the Council approve the amended
Development Agreement.
THIS AGENDA This Agenda Item asks the City Council to approve the proposed amended
ITEM: version of Annexation and Development Agreement for the Newport Coast.
ATTACHMENTS: Attachment A - Summary of Proposed Changes to the Annexation and
Development Agreement
Attachment B - Strike -out and underline version of the Annexation and
Development Agreement
Attachment C - Latest version of Senate Bill 516 (Johnson)
Newport Coast Annexation and Development Agreement -- Summary of
Proposed Changes
(Attachment A)
# Development Agreement Section Version Approved October 24, 2000 As Proposed to be Amended
Newport Coast DA Summary
June 21. 2001
Newport Beach Planning Commission
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Disasses rationale behind Development Agreement, facts and figures
Non - substantive changes to note Coastal Commission approvals,
=age.
—
Recitals (about The New Coast, the City, and the roe owner.
a e. more.
Defines terms used in the Agreement, sets forth exhbit descriptions
Minor change to exhibit citations (p9 -7).
1
Definitions and Exhibits
2
General Provisions
Binds the City to adhere to the Agreement, explains how City "it
Minor technical change (p8).
2.1
— Binding Effect of Agreement
del to certain land use authority to the County.
Decribes hod TIC's obligations under the Agreement terminate when a
2.2
— Assignment by TIC
residential lot is sold and has Its C of O issued and for commercial lots
Grammatical, non - substantive changes (p8 -9).
when such lot has been fully Improved and occupied.
3
Pre•Annexatlon Obligations and Commitments
a me following
Expressly authorizes TIC to fully develop the property' g
Authorizes City to annex the Newport Coast if LCP can be preserved
conditions are met:
.(a) Passage of SS 518 or similar,
3.1
— Annexation of Property
Intact and 0 City grants County all land use authority.
(b) City transfer of municipal land use authority to County via JPA or
similar ordinance or agreement 9 -10 .
Describes understanding that:
Minor change to exhibit citations (p10 -11).
(1) all EIRs completed and that annexation shall not require additional
Describes finding that annexation does not require EIR since It does
31
— Environmental Impacts and Mitigation
environmental documentation;
not change development entitlement (p11).
(2) TIC has met park, flood. other standards for development already.
Acknowledges Ihal affordable housing requirements have been met for
Minor change to exhibit citation, grammatical change (pl 1.12).
sa
— Additional Pre•Annexatlon Understandings
7NC +traffic lm Is mitt aced
3.4
— Coopers tion
TIC will support City's annexation eaorl
No Change
3.5
— Termination of Annexation Proceedings
TIC can terminate If City doesnl meet Its commitments
Minor grammatical change (pl2).
Development of the Property unpon Annexation and
4
Adoption of the Development Plan
City expressly declares that City will not take any action that will
interfere with development approvals, Including causing permitting or
4.1
— Rights to Develop
TIC can develop the property to full entitlement
development review to come to the City without TIC's consent unless
the property Is fully developed 12 .
42
— Effect of Agreement on Land Use Regulations
Agreement will not change approved land use regulations
No Change
4.3
— Timing of Development
TIC can develop property according to a timeline set only by TIC
Minor grammatical change (p13).
TFCmay apply for changes to the deve opment approvals. County will
process such changes. City will support TIC $ changes unless the
changes:
(a) are Inconsistent with the City's Land Use Element:
Clarifies how such changes can be approved by City — no substantive
4A
— Changes and Amendments
(b) reduce open space;
changes to a-e to the left (pl3.14).
(c) alter the cost of providing Services;
(d) reduce property tax revenue;
W increase tlensit or Intend
Newport Coast DA Summary
June 21. 2001
Newport Beach Planning Commission
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Newport Coast Annexation and Development Agreement -- Summary of
Proposed Changes
(Attachment A)
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Development of the Property Unpon Annexation and
Adoption of the Development Plan (cont'd)
— Continuation of Irvine Coast Development Agreemert
Irvine Coast DA between TIC and County continue to govern Coastal
Zone development
Minor grammatical change (p14).
4,5
4.6 — Monitoring of Project
5 Financing of Public Improvements After Annexation
5.1 — Formation of Financing Districts
Not in 2000 version
City must cooperate In tha formation of financing districts in TNC if so
requested b TIC. All must be subject to State law.
Authorizes City to enter property to ensure the development proceeds
in compliance with development approvals and all approvals'matedal
to the issue of water quality and aesthetics.' (pl4).
No Change
8
52 — TIC's right to construct facilities
9 Review for Compliance Following Annexation
6.1 — Periodic Review
TIC can construct public facilities
DA review every year
No Change
No Change
63
— Special Review
City can order a special review at City's cost
No Change
6.3
— Procedure
Describes how the review will proceed
No Change
6.4
7
— Certificate of Agreement Compliance
Default and Remedies
City will Issue a certificate of compliance at completion of review if DA
is in compliance
Describes that specific performance of any remedy is appropriate rather
than monetary damages
No Change
No Change
7.1
— Specific Performance Available
7.2
— Restitution of Improper Development Fees
Any improper City development fees can be revved by TIC
Typographical error correction (pl7).
7.3
— Termination of Agreement
Describes how Agreement can be terminated
No Change
7.4
— TIC'S right to terminate upon specified events
TIC can terminate If market changes
No Change
8
Third Party Litigation
City and TIC will cooperate in any litigation against DA
No Change
9
Mortgagee Protection
DA nor City shall not prevent TIC from securing financing
No Change
10
Miscellaneous Provisions
Exhibits
—A
Variety of technical provisions, Including term, notices. severabllity.
Legal Description of the Property
Changes signature blocks (p23).
Conforms late changes per the LAFCO submission
—6
Map
Conforms late changes per the LAFCO submission
—C
Planning and Environmental History
No Changes
— D
I Summary of County Development Approvals
No Changes
— E
Documents mitigation measures
No Changes
— F
lAffordable Housing Implementation Plans
I No Changes
Newport Coast DA Summary
June 21, 2001
Newport Beach Planning Commission
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0 Attachment B
ANNEXATION AND DEVELOPMENT AGREEMENT
BETWEEN
CITY OF NEWPORT BEACH
AND
THE IRVINE COMPANY
AND
IRVINE COMMUNITY DEVELOPMENT COMPANY
CONCERNING
THE NEWPORT COAST
AND ADJACENT PROPERTIES
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ANNEXATION AND DEVELOPMENT AGREEMENT
This Annexation and Development Agreement (hereinafter "Agreement ") is
entered into effective as of 29002001, (hereinafter the "Effective
Date ") by and among the CITY OF NEWPORT BEACH (hereinafter "CITY "), and
THE IRVINE COMPANY and IRVINE COMMUNITY DEVELOPMENT COMPANY
(hereinafter collectively "OWNER ").
RECITALS
A. OWNER collectively owns a substantial portion of the real property
( "Property") described on Exhibit "A" and depicted on Exhibit "GB," consisting of
approximately 5,615 acres.
B. The Property is currently in the unincorporated area of the County of
Orange ( "County"). OWNER has obtained development approvals from the
County and the California Coastal Commission for the majority of the Property
from the County; and has commenced subdivision and development of the
Property under the jurisdiction of the County.
C. The development approvals for the Property have been appreved as
ranted after a lengthy planning process that involved the careful
review f numerous environmental documents (Planning and
eRV+reasaeRtal-Environmental hister-y-History is attached as Exhibit 8C). The
development approvals include:
The County of Orange Newport Coast Local Coastal Program and
Master Coastal Development Permit for that portion of the Property
in the Coastal Zone.
2. A Development Agreement with the County (County Development
Agreement).
3. The Newport Ridge Planned Community Plan.
4. Subdivision Maps.
D. The Property is also part of the Natural Communities Conservation
Plan (NCCP) — a complex agreement that requires OWNER to dedicate portions
of the Property upon completion of certain phases of development. OWNER is
also required to dedicate large portions of the Property pursuant to the
development approvals.
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E. OWNER was required, by the development approvals, to make
costly infrastructure improvements far in excess of those necessary to mitigate the
impacts, or serve the needs, of the development. OWNER was required to make,
and has made, these extraordinary improvements prior to development of the
Property.
F. OWNER has acquired a fully vested right to develop the Property in
accordance with the development approvals because of the extraordinary
expenditures for public and private improvements made in reliance on the
development approvals, the dedications made in reliance on the development
approvals and the County Development Agreement.
G. CITY and OWNER intend for this Agreement to fully conform to the
development approvals and to fully facilitate full implementation of the Project, as
conditioned. To the maximum extent Dermitted by law, this Agreement is intended
to De the Tuncuonai equnraient of, or suppiemem, Tne L ounry vevelopment
Agreement in light of the CITY's intention to delegate to the County all municipal
land use authority over the Property until such time as the Project is complete.
H. The PFeperty is within GIW's spheFee#;aAeer+ee —City is desirous of
annexing the Property but recognizes that the development approvals for the
Property involve complex and interrelated planning documents. end -CITY does
not have sufficient staff to timely process the permits required for implementation
of the Project in compliance with all the development approvalspennits.
Moreover, the development approvals and land use plan involve the dedication of
valuable habitat and open space within and outside of the boundaries of the
Property and City does not have the personnel and expertise to ensure that
dedications occur as planned.
I. CITY and OWNER have discussed the process and terms and
conditions of annexing the Property to CITY, and each has determined that it is in
their respective best interests to pursue that annexation pursuant to the terms of
this Agreement and the development approvals. In particular CITY desires
assurances that OWNER will support eventual annexation of all of the Property to
Now
(a) F #acilitate the timely and orderly integration of the Property into
the CITY consistent with the CITY's sphere of influence;
(b) Facilitate planning and provision of municipal services to the
Property without any adverse fiscal impact on the CITY or the
ultimate owners of the property; and
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(c) ensure consistency with and implement the CITY's General Plan.;
and
At the same time, --2)- -OWNER desires to obtain assurances from CITY that,
subsequent to annexation:
(a) OWNER will still be able to develop the Property to the full extent
permitted by the development approvals granted by the County and
the Coastal Commission subiect to conditions of approval imposed
(b) �'^•�aTDevelopment will be processed by the County in
accordance with a uniform set of land use and building rules,
regulations and requirements, as established by the development
approvals given by the County for the Property prior to its
annexation; and
(c) Ddevelopment of the Property will be subject only to costs, fees,
processing requirements, conditions or exactions that would have
been imposed had the Property not been annexed to CITY.,
J. In addition to the authority at common law for annexation
agreements, Government Code Sections 65864 et seq. ( "Development
Agreement Law "), and NewpeFt Beash MwAisipal Code Chapter 15.45 of the
Newport Beach Municipal Code; authorize CITY to enter into binding development
agreements with persons having a Legal or equitable interest in real property. This
Agreement is consistent with the public oolicv that supoorts development
the public planning process,
M,
the
economic costs of sueh development.
K. The City Council has found that this Agreement is in the best public
interest of the CITY and its residents, adopting this Agreement constitutes a
present exercise of its police power, and
afflexatoen of the PFepedy, this Agreement is will be consistent with the City's
General Plan and wick► -the Newport Beach Municipal Code Chapter.
L. This Agreement is not intended
to, and shall not be construed, to impair the rights and obligations of OWNER, or
other involved parties under and pursuant to eitlieF�the Newport Coast
Local Coastal Program, Second Amendment, and the Litigation Settlement
Agreement entered into June 27, 1997, by and among OWNER, the Friends of the
Irvine Coast, Laguna Greenbelt, Inc., and Stop Polluting Our Newport.
4
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COVENANTS
NOW, THEREFORE, the Parties agree as follows:
DEFINITIONS AND EXHIBITS.
0
1.1 Definitions. This Agreement uses a number of terms having
specific meanings, as defined below. These specially defined terms are
distinguished by having the initial letter capitalized, or all letters capitalized, when
used in the Agreement. The defined terms include the following:
1.1.1 "Agreement- means this Annexation and Development Agreement.
1.1.2 "Coastal Zone Area" means that portion of the Property that is
subject to the provisions of the California Coastal Act, Public Resources
Code section 30000 et seq.
1.1.3 "CITY" means the City of Newport Beach, a California charter city.
1.1.4 "County' means the County of Orange, a political subdivision of the
State of California.
1.1.5 "Development' whether or not capitalized means the improvement of
the Property for the purposes of completing the structures, improvements
and facilities comprising the Project 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 buildings
and structures; and the installation of landscaping and park facilities and
improvements. For purposes of this Agreement, however, "Development"
does not include any remodeling, reconstruction, or other building or
grading activity by any person subsequent to the termination of this
Agreement as provided in and pursuant to Section 2.3.3 below.
1. 1.6 "Development Approvals" means all permits, licenses, consents,
rights and privileges, and other actions subject to approval or issuance by
County or CITY in connection with Development of the Property, including
but not limited to:
(a) General plans and general plan amendments adopted by the
County or the CITY;
(b) Specific plans and specific plan amendments;
5
(c) Zoning and rezoning adopted by the County or the CITY;
(d) Tentative and final subdivision and parcel maps;
(e) Variances, conditional use permits, master plans, public use
permits and plot plans; and
(f) Grading and building permits.
1.1.7 "Development Plan" means the plan for Development of the
Property, including without limitation the planning and zoning standards,
regulations, and criteria for the Development of the Property, contained in
and consistent with the Development Approvals. The components of the
Development Plan are more fully described in Exhibit "DG."
1.1.8 "Effective Date" means the date this Agreement is approved by the
CITY as shown in the first paragraph.-
1.1.9 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies governing Development and use of
land applicable to the Property pursuant to this Agreement, including,
without limitation, the permitted use of land, the density or intensity of use,
subdivision requirements, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and
specifications applicable to the Development of the Property. "Land Use
Regulations" does not include any CITY ordinance, resolution, code, rule,
regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) except as provided in Section 4.9 below, taxes and
assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of
rights and interests which provide for the use of or the entry
upon public property; and
(e) the exercise of the power of eminent domain
1.1.10 "OWNER" means individually and collectively The Irvine Company
and Irvine Community Development Company, and where appropriate in
context their respective successors in interest to all or any part of the
Property.
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1.1.11 "Mortgagee" means a mortgagee of a mortgage, a beneficiary
under a deed of trust or any other security- device, a lender and their
successors and assigns.
1.1.12 "Project' means the Development of the Property consistent with
the Development Plan.
1.1.13 "Property' means the real property described in Exhibit "A" and
shown on Exhibit "B" to this Agreement.
1.1.14 "Reservation of Authority' means the rights and authority excepted
from the assurances and rights provided to OWNER under this Agreement
and reserved to CITY under Section 4.6 of this Agreement.
1.1.15 "Subsequent Development Approvals" means all Development
Approvals subsequent to the Effective Date in connection with
Development of the Property.
1.1.16 "Subsequent Land Use Regulations" means any Land Use
Regulations adopted and effective after the Effective Date of this
Agreement, other than the Development Plan.
1.1.17 "Term" shall mean the period of time from the Effective Date until
the termination of this Agreement as provided in subsection 10.1, or earlier
termination as provided in Section 7.
1.2 Exhibits. The following documents are attached to, and by this
reference made a part of, this Agreement:
Exhibit "A" Legal Description of the Property.
Exhibit "B" Map showing Property and its _
location. Planning nd En ninnental HisteFy.
Exhibit "C" -
leeatien: Planning and Environmental History.
Exhibit "D" List of County Development Approvals_
Exhibit "E" Mitigation Measures_
Exhibit "F" Affordable Housing Implementation Plans.
2 GENERAL PROVISIONS.
7
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2.1 Binding Effect of Agreement. This Agreement shall be binding on
the CITY from and following the Effective Date. However, CITY shall
have no right or duty with respect to the Property until annexation of
the Property to CITY and CITY intends, through a joint powers
agreement, ordinance or other mechanism, OF °'Mi'^fl ^i:Fangement
to delegate to the County all municipal and use jurisdiction and all
responsibility for processing Development Approvals that the City
has, or may have, pursuant to State or local law.
2.2 Assignment By OWNER.
2.2.1 Right to Assign. OWNER shall have the right to sell,
transfer or assign the Property in whole or in part (provided that no
eaeh-parti&transfer shalFvielateviolates the Subdivision Map Act,
Government Code Section 66410, et seq.), and in so doing assign
its rights and obligations under this Agreement as the same may
relate to the portion of the Property being transferred, to any person,
partnership, joint venture, firm or corporation at any time during the
term of this Agreement.
2.2.2 Release of Transferring Owner. Upon the sale,
transfer or assignment of all or a portion of the Property, the
transferring OWNER shall be released of all obligations under this
Agreement that relate to the portion of the Property being
transferred; provided that the obligations under Sections 4 and 5 of
this Agreement that relate to the portion of the Property being
transferred are assumed by and enforceable against the transferee.
2.2.3 Termination of Agreement With Respect to Individual
Residential Lots On Sale to Public and Completion of Construction.
Notwithstanding any other provisions of this Agreement, the
obligations of Owner pursuant to this Agreement shall terminate with
respect to any residential lot and such residential lot shall be
released and no longer be subject to this Agreement upon
satisfaction of both of the following conditions:
(a) The residential lot has been finally subdivided and
individually (and not in "bulk ") sold or leased (for a period
longer than one year) to a member of the public or other
ultimate user; and,
(b) A certificate of occupancy has been issued or a final
building inspection has been conducted and approved for the
primary dwelling unit on the residential lot.
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2.2.4 Termination of Agreement With Respect to Non -
Residential Parcels. Notwithstanding any other provisions of this
Agreement, the obligations of Owner pursuant to this Agreement
shall terminate with respect to any non - residential parcel and Gaeh
the non - residential parcel shall be released and no longer be subject
to this Agreement at such time as the parcel has been fully improved
and occupied consistent with the allowed intensity of development
under the Development Plan.
PRE - ANNEXATION OBLIGATIONS AND COMMITMENTS.
3.1 Annexation of Property. Consistent with and subject to the terms
and conditions of this Agreement and specifically this Subsection, CITY
may, in one annexation proceeding or several annexation proceedings,
annex the Property under such conditions as are imposed by or through the
Orange County Local Agency Formation Commission and reasonably
acceptable to OWNER. Conditions shall be deemed to be reasonably
acceptable to OWNER unless the conditions impair or interfere with
OWNER's rights to develop or materially increase the cost of development.
OWNER's consent to annexation of all or a portion of the Property is
in Section 3 and 4 of this Agreement.-
3.1.1 Annexation Before Project Completion. OWNER will neithef
su ort CITY's annexation of the Property
in its entirety before project completion, provided that the Property
may be fully developed to the full extent permitted in the
nPvPlnnmPnt Plan and as PvirlPnrPrt by satisfaction of each of the
(a) The Legislature has approved, and the Governor has
of the PrepeFty by GIP� suNe6t to the teFFAs of this
ill not
alter or affect the validity and enforceability of the Newport
Coast Local Coastal Program, Second Amendment, including
any amendments applicable to the Property and any related
coastal development permits; or ii - e"eprive the County of
authority to issue coastal development permits pursuant to
the terms of this Agreement, any ordinance; joint powers
agreement, or other mechanism that confers municipal land
use authority to the County after annexation and - and -the
Newport Coast Local Coastal Prooram. Second Amendment
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amendments that are certified b
(b) The Ci aAdopts, and maintains during the term of this
Agreement, the- applisable-general plan pFeyisiens, speei
plans and zoning desginations for the Property that are
essentially as the same Kaye b^eRidentical to the general
plan and zoning designations adopted by the County, te#he
SeeeRd and in effect as of the Effective Date.
(c) The City transfers municipal land use
the issuance of building and aradina nern
smote a joint powers or
until such time as the I
hung, to an
over all or a
3.1.2 Ultimate Annexation. OWNER will fully support CITY
annexation of all or a portion of the Newped GeastPr(
without satisfying the provisions of Section 3.1.1, pro)
that all annexed and /or parcels to be annexed ha
received building permits for construction of structure
of occupancy has been issued or a
has been conducted and annexatic
affect, or impair the Development P
inspection
or
3.2 Environmental Impacts and Mitigation. The parties acknowledge
that Environmental Impact Reports, environmental documents and functional
equivalents ( "Environmental Documents - described in Exhibit 8C) have been
prepared and certified for the Project by County.and/or approved by the Coastal
Commission. CITY has reviewed and evaluated the Environmental Documents to
determine if the impacts of the Project, as represented by this Agreement, the
Development Plan, and the CITY approvals, were fully analyzed and evaluated.
CITY has also reviewed the Environmental Documents and all relevant existing
facts and circumstances to determine if any of the events that require preparation
of a subsequent or supplemental environmental document have occurred. CITY
has determined based on that review that none of the events described in Section
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21166 of the Public reseu.oes Resources Code or Sections 15162 or 15163 of the
CEQA Guidelines have occurred. CITY has specifically determined that the
detachment of the Property from County and the annexation of the Property to
CITY do not require preparation of any subsequent or supplemental
environmental impact report for the Project because the reorganization will not
increase decrease or modify any development of dedication when compared to
the entitlement prior to annexation. CITY has also determined that, subject to
incorporation of the mitigation measures identified in Exhibit "OE" and except as
specifically provided in this Agreement, there is no current or anticipated
deficiency in any municipal service or facility (including without limitation planned
community and neighborhood parks, drainage and flood control facilities,
circulation system infrastructure, and public safety services) resulting from
Development of the Project. The mitigation measures identified in Exhibit "DE"
are incorporated by reference into the Development Plan.
3.3 Additional Pre- Annexation Understandings. As a further
inducement to OWNER to support the annexation of the Property to CITY, CITY
agrees that, as of the date of its approval of this Agreement. CITY acknowledges
that all County affordable housing requirements associated with development of
the Property have been satisfied. CITY also acknowledges that the OWNER has
a vested right to proceed with development pursuant to the County Agreement
and that no additional affordable housing requirements shall be imposed on
development of the Property pursuant to the CITY's General Plan or otherwise.
The Affordable Housing Implementation Plans approved by the County, describing
the manner in which affordable housing requirements have been satisfied for
development of the Property, are attached to this Agreement as Exhibit " €F.°
Fees payable upon issuance of any development permit (e.g., building permit or
occupancy permit) will be paid to the issuer of the permit in accordance with
County Codes, fee schedules and requirements for original improvements.
Following annexation, fees shall continue to be paid to the issuer in accordance
with the codes and requirements for additions, remodels and rebuilds of the
jurisdiction with land use authority. CITY agrees that the Project is in full
compliance with, and shall not be further subject to, CITY's Traffic Phasing
Ordinance following annexation of the Property, CITY having determined through
this Agreement that:
a. Development of the Property will not cause or make worse any
unsatisfactory level of service at any critical intersection as defined in the
Traffic Phasing Ordinance;
b. Development of the Property has been considered a committed project
which has been incorporated into the CITY's traffic model and Circulation
Element traffic projections and all resulting levels of service have been
accepted in the Circulation Element; and
c. There is an overall reduction in peak hour ICU at impacted intersections
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having unsatisfactory levels of service taking into account the circulation
improvements constructed or facilitated by OWNER pursuant to conditions
imposed for development of the Project, including witheut limitation
construction of Newport Coast Drive, extension of San Joaquin Hills Road,
widening of Pacific Coast Highway, and facilitation of construction of the
San Joaquin Hills Transportation Corridor.
3.4 Cooperation. Subject to and in reliance upon the representations
and covenants of the CITY herein, OWNER will support the annexation of the
Property by the CITY.
3.5 Termination of Annexation Proceedings. This Agreement may be
terminated by OWNER in the event that CITY fails to comply with the
requirements of Paragraph 3.1 above with respect to any proposed annexation of
Property to CITY, or if conditions imposed by or through the Local Agency
Formation Commission on the annexation are determined by either party to
conflict materially with its rights and obligations under any provision of this
Agreement.
4 DEVELOPMENT OF THE PROPERTY UPON ANNEXATION AND
A{9^n�%^k% ^� TUI Ill AL%
Following annexation of the Property by CITY, the following provisions shall apply:
4.1 Rights to Develop. Subject to the terms of this Agreement,
following annexation of the Property OWNER shall have a vested right to develop
the Property in accordance with, and to the extent of, the Development Plan.
Pending annexation to CITY, OWNER shall have the right to seek approvals from
County for the Development of the Property, and to develop the Property,
consistent with the Development Plan. CITY expressly agrees to take no action
that would or could (a) interfere with or impair the Development Approvals; (b)
the cost of completing the project without the
or (d) cause the transfer of anv Dermittina or,
ant to State or
or
4.2 Effect of Agreement on Land Use Regulations. Except as
otherwise provided under the terms of this Agreement, the rules, regulations and
official policies governing permitted uses of the Property, the density and intensity
of use of the Property, the maximum height and size of proposed buildings, and .
the design, improvement and construction standards and specifications applicable
to Development of the Property, shall be those contained in the Development Plan
and those Land Use Regulations not inconsistent with the Development Plan.
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4.3 Timing of Development. The parties acknowledge that OWNER
cannot at this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors which are not within
the control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465,
that the failure of the parties therein to provide for the timing of Development
resulted in a later adopted initiative restricting the timing of Development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by
acknowledging and providing that OWNER shall have the right to develop the
Property in such order and at such rate and at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Nothing in this
section is intended to alter the standard durational limits of any appHeab"ermits
issued to OWNER pursuant to Development Approvals.
4.4 Changes and Amendments. The parties acknowledge that
Development of the Project w4-4i *aaya + require Subsequent Development
Approvals. , WNER may determine that
changes in the existing Development Approvals or
Development Plan are appropriate and desirable. In the event OWNER finds that
such a change is appropriate or desirable, OWNER may apply in writing for an
amendment to prier--Development Approvals or the Development Plan to effect
sate such change, which and the application shall be processed for approval by
County. CITY shall expressly permit and authorize modifications of any proposed
changes in the existing Development Approvals or Development Plan that are
eensisteRt with the Land Use Element designations feF the nless the
proposed modifications:
inconsistent with the Land Use Element designations for the
or
Lb) would aiatedally4Weduce the amount of open space intended for
dedication to the public, or
Lb) would materially alter the cost of providing municipal services to the
Property subsequent to annexation, or
(de) would materially reduce the amount of property tax or other revenue
available to the CITY after annexation, or
(ed) would materially increase the density and/or intensity of development
allowed in the Project as a whole, resulting in unacceptable intersection impacts
outside of the Project that cannot be mitigated pursuant to the CITY's Traffic
Phasing Ordinance.
,
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Any change in the Development Approvals or Development Plan made in
accordance with the procedures required by the Land Use Regulations and with
the written consent of the OWNER shall be conclusively deemed to be consistent
with this Agreement, without any further need for any amendment to this
Agreement or any of its Exhibits.
4.5 Continuation of Irvine Coast Development Agreement. CITY
acknowledges and agrees that the 4*ne-GeastCounty Development Agreement
entered into between OWNER and County shall continue to govern the rights and
obligations of OWNER and County with respect to the Coastal Zone Area
preceding annexation, and following annexation to the maximum extent permitted
pursuant to the joint powers agreement or similar arrangement. If for any reason
this Agreement is found to be invalid or unenforceable or OWNER's ability to
proceed with the Development Plan is impaired or delayed for any reason, then
the Coastal Zone Area shall be and remain subject to the terms and protections of
the Irvine Coast Development Agreement.
5 FINANCING OF PUBLIC IMPROVEMENTS AFTER ANNEXATION.
5.1 Formation of Financing Districts. If so requested by OWNER,
CITY will cooperate in the formation of any special assessment district, community
facilities district or alternate financing mechanism ( "CFD ") to pay for the
construction, acquisition, and /or maintenance and operation of public and/or
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quasi - public infrastructure, lighting, landscape, or any other public facilities
required as part of the Development Approvals; provided, however, CITY shall
have no obligation to authorize or to cause any such CFD to issue debt or sell
bonds prior to the completion of the annexation of the Property to CITY. In the
event that such a CFD is formed and sells bonds to pay for the construction or
acquisition of public or quasi - public facilities which were provided, in whole or in
part, by OWNER, OWNER may be reimbursed from such bonds to the extent that
OWNER has spent funds or dedicated land for the establishment of such facilities
and creation of the CFD. While it is acknowledged that this Agreement cannot
require CITY or the City Council to form any such CFD or to issue and sell bonds,
CITY represents that it can, and does hereby, agree that it shall not refuse
OWNER's request to form such a CFD and to issue and sell bonds following
completion of annexation of the Property to CITY, except for good and reasonable
cause. In no event shall CITY have any obligation or duty to refinance, repay,
reduce the amount of, or assume any financial relationship to, any bonds or other
debt issued by any CFD prior to annexation.
5.2 OWNER's Right to Construct Facilities. It is understood and
agreed that, subject to CITY or County review and approval of plans and
specifications, as appropriate, the OWNER may elect, and reserves the right, to
construct, or cause the construction of, any public or quasi - public facility for which
the CITY intends to collect a fee, and to dedicate the completed facility to the
CITY, in lieu of payment of the fee.
6 REVIEW FOR COMPLIANCE FOLLOWING ANNEXATION.
6.1 Periodic Review. Following annexation of all or any portion of the
Property, the City Council shall review this Agreement annually, on or before the
anniversary of the Effective Date, in order to ascertain the good faith compliance
by OWNER with the terms of the Agreement. As part of that review, OWNER
shall submit an annual monitoring review statement describing its actions in
compliance with this Agreement, in a form acceptable to the City Manager, within
30 days after written notice from the City Manager requesting that statement. The
statement shall be accompanied by an annual review and administration fee
sufficient to defray the estimated costs of review and administration of the
Agreement during the succeeding year. The amount of the annual review and
administration fee shall be set annually by resolution of the City Council.
6.2 Special Review. The City Council may order a special review of
compliance with this Agreement at any time at CITY's sole cost. OWNER shall
cooperate with the CITY in the conduct of such special reviews.
6.3 Procedure. In connection with any periodic or special review, each
party shall have a reasonable opportunity to assert matters which it believes have
not been undertaken in accordance with the Agreement, to explain the basis for
such assertion, and to receive from the other party a justification of its position on
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such matters. If on the basis of the parties' review of any terms of the Agreement,
either party concludes that the other party has not complied in good faith with the
terms of the Agreement, then such party may issue a written "Notice of
Non - Compliance" specifying the grounds therefor and all facts demonstrating such
non - compliance. The party receiving a Notice of Non - Compliance shall have thirty
(30) days to respond in writing to said Notice. If the response to the Notice of
Non - Compliance has not been received in the offices of the parry alleging the
default within the prescribed time period, the Notice of Non - Compliance shall be
conclusively presumed to be valid. If a Notice of Non - Compliance is contested,
the parties shall have up to sixty (60) days to arrive at a mutually acceptable
resolution of the matter(s) occasioning the Notice. In the event that the parties are
not able to arrive at a mutually acceptable resolution of the matter(s) by the end of
the sixty (60) day period, the party alleging the non - compliance may thereupon
pursue the remedies provided in Section 7.
6.4 Certificate of Agreement Compliance. If, at the conclusion of a
periodic or special review, OWNER is found to be in compliance with this
Agreement, CITY shall, upon request by OWNER, issue a Certificate of
Agreement Compliance ( "Certificate ") to OWNER stating that after the most recent
Periodic or Special Review and based upon the information known or made
known to the City Manager and CITY Council that (1) this Agreement remains in
effect and (2) OWNER is not in default. The Certificate shall be in recordable
form, shall contain information necessary to communicate constructive record
notice of the finding of compliance, shall state whether the Certificate is issued
after a Periodic or Special Review and shall state the anticipated date of
commencement of the next Periodic Review. OWNER may record the Certificate
with the County Recorder. Additionally, OWNER may at any time request from
the CITY a Certificate stating, in addition to the foregoing, which obligations under
this Agreement have been fully satisfied with respect to the Property, or any lot or
parcel within the Property.
7 DEFAULT AND REMEDIES.
7.1 Specific Performance Available. The parties acknowledge that
money damages and remedies at law generally are inadequate and specific
performance is a particularly appropriate remedy for the enforcement of this
Agreement and should be available to OWNER and CITY because due to the
size, nature and scope of the Project, it may not be practical or possible to restore
the Property to its natural condition once implementation of this Agreement has
begun. After such implementation, OWNER and/or CITY may be foreclosed from
other choices it may have had to utilize or condition the Property or portions
hereof. OWNER 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, such that it would be extremely difficult to determine the sum of
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money which would adequately compensate OWNER and/or CITY for such
efforts. Except as provided in the Section 7.2 below, neither OWNER nor CITY
shall be entitled to any money damages, including attorney fees, from the other
party by reason of any default under this Agreement.
7.2 Restitution of Improper Development Fees. In the event any
Development fees or taxes are imposed on Development of the Property other
than those authorized pursuant to this Agreement, OWNER shall be entitled to
recover from CITY restitution of all such improperly assessed fees or taxes,
together with interest thereon at the maximum allowable non - usurious rate from
the date such sums were paid to CITY to the date of restitution_
7.3 Termination of Agreement.
7.3.1 Termination of Agreement for Default of OWNER. CITY in its
discretion may terminate this Agreement as to any non - annexed portions of
the Property for any failure of OWNER to perform any material duty or
obligation of OWNER hereunder or to comply in good faith with the terms of
this Agreement related to its annexation (hereinafter referred to as
"default'); provided, however, CITY may terminate this Agreement pursuant
to this Section only after following the procedure set forth in Section 6.3
and thereafter providing written notice to OWNER of the default setting
forth the nature of the default and the actions, if any, required by OWNER
to cure such default and, where the default can be cured, OWNER has
failed to take such actions and cure such default within 30 days after the
effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.2 Termination of Agreement for Default of CITY. OWNER in its
discretion may terminate this Agreement by written notice to CITY after the
default by CITY in the performance of a material term of this Agreement
and only after following the procedure set forth in Section 6.3 and thereafter
providing written notice by OWNER thereof to CITY and, where the default
can be cured, the failure of CITY to cure such default within 30 days after
the effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.3 Rights and Duties Following Termination. Upon the termination of
this Agreement, no party shall have any further right or obligation
hereunder except with respect to (i) any obligations to have been
performed prior to said termination, (ii) any default in the performance of
the provisions of this Agreement which has occurred prior to said
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termination, or (iii) obligations that have vested through the annexation of
the Property, or any annexed portion thereof.
7.4 OWNER's Right To Terminate Upon Specified Events.
Notwithstanding any other provisions of this Agreement to the contrary, OWNER
retains the right to terminate this Agreement (but not the provisions of Section 3)
upon thirty (30) days written notice to CITY in the event that OWNER reasonably
determines that continued Development of the Project consistent with the
Development Plan has become economically infeasible due to changed market
conditions, increased Development costs, burdens imposed as conditions to
future discretionary approvals of the Project consistent with this Agreement, or
similar factors.
8 THIRD PARTY LITIGATION.
CITY shall promptly notify OWNER of any claim, action or proceeding filed and
served against CITY to challenge, set aside, void, annul, limit or restrict the
approval and continued implementation and enforcement of this Agreement.
CITY and OWNER agree to cooperate in the defense of such aotion(s).
9 MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit OWNER, in
any manner, at OWNER's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Property. CITY
acknowledges that the lenders providing such financing may require certain
Agreement interpretations and modifications and agrees upon request, from time
to time, to meet with OWNER and representatives of such tenders to negotiate in
good faith any such request for interpretation or modification. Subject to
compliance with applicable laws, CITY will not unreasonably withhold its consent
to any such requested interpretation or modification provided such interpretation
or modification is consistent with the intent and purposes of this Agreement. Any
Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement
shall defeat, render invalid, diminish or impair the lien of any mortgage on
the Property made in good faith and for value, unless otherwise required by
law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, has submitted a request in
writing to the CITY in the manner specified herein for giving notices, shall
be entitled to receive written notification from CITY of any default by
OWNER in the performance of OWNER's obligations under this
Agreement.
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(c) If CITY timely receives a request from a Mortgagee requesting a copy
of any notice of default given to OWNER under the terms of this
Agreement, CITY shall provide a copy of that notice to the Mortgagee
within ten (10) days of sending the notice of default to OWNER. The
mortgagee shall have the right, but not the obligation, to cure the default
during the remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in
lieu of such foreclosure, shall take the Property, or part thereof, subject to
the terms of this Agreement. Notwithstanding any other provision of this
Agreement to the contrary, no Mortgagee shall have an obligation or duty
under this Agreement to perform any of OWNER's obligations or other
affirmative covenants of OWNER hereunder, or to guarantee such
performance; except that (i) to the extent that any covenant to be
performed by OWNER is a condition precedent to the performance of a
covenant by CITY, the performance thereof shall continue to be a condition
precedent to CITY's performance hereunder, and (ii) in the event any
Mortgagee seeks to develop or use any portion of the Property acquired by
such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure,
such Mortgagee shall strictly comply with all of the terms, conditions and
requirements of this Agreement and the Development Plan applicable to
the Property or such part thereof so acquired by the Mortgagee.
10 MISCELLANEOUS PROVISIONS.
10.1 Term of Agreement. Following completion of the annexation of the
Property, or any portion thereof, to the CITY within the preceding time periods,
this Agreement shall continue in full force and effect with respect to such annexed
land for a period of fifteen (15) years from the effective date of that annexation.
10.2 Recordation of Agreement. This Agreement shall be recorded with
the County Recorder by the City Clerk upon annexation of the Property to CITY
within the period required by Section 65868.5 of the Government Code. Similarly,
amendments approved by the parties, and any cancellation, shall also be
recorded.
10.3 Entire Agreement. This Agreement sets forth and contains the
entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony
or evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the
terms or conditions of this Agreement.
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10.4 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, then this
Agreement shall terminate in its entirety, unless the parties otherwise agree in
writing, which agreement shall not be unreasonably withheld.
10.5 Interpretation and Governing Law. This Agreement and any
dispute arising hereunder shall be governed and interpreted in accordance with
the laws of the State of California. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and
purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party or in favor of CITY shall
not be employed in interpreting this Agreement, all parties having been
represented by counsel in the negotiation and preparation hereof.
10.6 Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect any construction or
interpretation of this Agreement.
10.7 Singular and Plural. As used herein, the singular of any word
includes the plural.
10.8 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
10.9 Waiver. Failure of a party to insist upon the strict performance of any
of the provisions of this Agreement by the other party, or the failure by a party to
exercise its rights upon the default of the other party, shall not constitute a waiver
of such party's right to insist and demand strict compliance by the other party with
the terms of this Agreement thereafter.
10.10 Third Party Beneficiaries. This Agreement is made and entered
into for the sole protection and benefit for the parties and their successors and
assigns. No other person shall have any right of action based upon any provision
of this Agreement; provided, however, that the fee owners of any non - residential
parcels in the annexation area may elect to be covered by this Agreement.
10.11 Force Majeure. 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 by earthquakes, other Acts of God, fires, wars, riots or
similar hostilities, strikes and other labor difficulties beyond the party's control
(including the party's employment force), government regulations, court actions
(such as restraining orders or injunctions), or other causes beyond the party's
control. If any such events shall occur, the term of this Agreement and the time
for performance shall be extended for the duration of each such event, provided
that the term of this Agreement shall not be extended under any circumstances_ for
more than five (5) years.
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10.12 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent
performance by the party benefited thereby of the covenants to be performed
hereunder by such benefited party.
10.13 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same
effect as if all of the parties had executed the same instrument.
10.14 Jurisdiction and Venue. Any action at law or in equity arising
under this Agreement or brought by any party hereto 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,
and the parties hereto waive all provisions of law providing for the filing, removal
or change of venue to any other court.
10.15 Project as a Private Undertaking. It is specifically understood and
agreed by and between the parties hereto that the Development of the Project is a
private Development, that neither party is acting as the agent of the other in any
respect hereunder, and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this Agreement. No
partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and OWNER is that of a
government entity regulating the Development of private property and the owner
of such property.
10.16 Further Actions and Instruments. Each of the parties shall
cooperate with and provide reasonable assistance to the other to the extent
contemplated hereunder in the performance of all obligations under this
Agreement and the satisfaction of the conditions of this Agreement. Upon the
request of either party at any time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such
required instruments and writings and take any actions as may be reasonably
necessary under the terms of this Agreement to carry out the intent and to fulfill
the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement. Subject to Section 3 above, OWNER will
cooperate with the CITY in the processing of the annexation of the Project through
the Local Agency Formation Commission including advocating the application of
the existing AB 8 Master Property Tax Transfer Agreement. OWNER
acknowledges the importance of maintaining the fiscal benefits of the Project
assuming that the current method of allocating sales tax revenues (Le., point of
sale) is utilized. OWNER will consult with the CITY regarding legislative proposals
to adjust this procedure with the goal of supporting CITY efforts to maintain the
fiscal benefits of the Project through the legislative process.
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10.17 Eminent Domain. No provision of this Agreement shall be
construed to limit or restrict the exercise by CITY of its power of eminent domain.
10.18 Amendments in Writing/Cooperation. This Agreement may be
amended only by written consent of both parties specifically approving the
amendment and in accordance with the Government Code provisions for the
amendment of Development Agreements. The parties shall cooperate in good
faith with respect to any amendment proposed in order to clarify the intent and
application of this Agreement, and shall treat any such proposal on its own merits,
and not as a basis for the introduction of unrelated matters.
10.19 Authority to Execute. The person or persons executing this
Agreement on behalf of OWNER warrants and represents that he /they have the
authority to execute this Agreement on behalf of hisAheir corporation, partnership
or business entity and warrants and represents that he/they has/have the authority
to bind OWNER to the performance of its obligations hereunder.
10.20 Notice. All notices, demands, requests or approvals to be given
under this Agreement shall be given in writing and shall be deemed served when
delivered personally or on the third business day after deposit in the United States
mail, postage prepaid, first class mail, addressed as follows:
All notices, demands, requests or approvals to CITY shall be addressed to
CITY at:
City of Newport Beach
City Manager's Office
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92658 -8915
All notices, demands, requests or approvals to OWNER shall be addressed
to OWNER at:
Vice President of Entitlements
The Irvine Company
550 Newport Center Drive
Newport Beach, California 92660
22
0
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first set forth above.
CITY: CITY OF NEWPORT BEACH
By
GAROLD B. ADAMS, Mayor
ATTEST: 11
By
LaVonne Harkless, City Clerk
APPROVED AS TO FORM:
By
Robert Burnham, City Attorney
(SEAL)
OWNER: THE IRVINE COMPANY
By
Title
By _
Title
23
r
0 0
OWNER: IRVINE COMMUNITY
DEVELOPMENT COMPANY
By_
Title
By_
Title
[ALL SIGNATURES SHALL BE NOTARIZED. EXECUTION ON BEHALF OF
ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
24
0
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA00 -XX
TO THE CITY OF NEWPORT BEACH
BLOCKS: 5151, 5152, 5251
5252, 5253, 5351
5352
MODULES: VARIOUS
BEING THOSE PORTIONS OF BLOCKS 91, 95 -98, 128 -134, 161 -164 OF IRVINE'S
SUBDIVISION AS SHOWN ON A MAP THEREOF FILED IN BOOK 1, PAGE 88 OF
MISCELLANEOUS RECORD MAPS AND PARCEL 2 AND A PORTION OF PARCEL 1 PER
CORPORATION GRANT DEED BOOK 13439, PAGE 94 -132, RECORDED DECEMBER 19,
1979,. IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT AN ANGLE POINT IN THE EXISTING CITY BOUNDARY AS ESTABLISHED
BY REORGANIZATION NO. R097 -35, "BONITA CANYON ANNEXATION TO THE CITY OF
NEWPORT BEACH AND DETACHMENT OF THE SAME TERRITORY FROM THE' CITY OF
IRVINE", SAID ANGLE POINT BEING THE SOUTHEASTERLY TERMINUS OF THAT CERTAIN
COURSE DESCRIBED AS "SOUTH 11 058'31" EAST 11.29 FEET" IN SAID
REORGANIZATION NO. R097 -35, AND BEING COMMON TO "HARBOR VIEWS HILLS -
PHASE 3" ANNEXATION TO THE CITY OF NEWPORT BEACH;
THENCE CONTINUING ALONG THE EXISTING CITY BOUNDARY OF THE CITY OF NEWPORT
BEACH PER "HARBOR VIEW HILLS -PHASE 3" ANNEXATION, THE "HARBOR VIEW HILLS
SECTOR 4" ANNEXATION, THE "HARBOR RIDGE ANNEXATION NO. 89 ", THE "HARBOR
RIDGE ANNEXATION NO. 82, THE "HARBOR VIEW HILLS -PHASE 3" ANNEXATION, THE
"HARBOR VIEW HILLS -PHASE 4" ANNEXATION, THE "ANNEXATION NO. 57 (CENTERVIEW
ANNEXATION) ", TO THE WESTERLY TERMINUS OF A LINE BEARING NORTH 89 002'53"
WEST A DISTANCE OF 1,050.00 FEET, SAID WESTERLY TERMINUS BEARS NORTH
37 °05'00" WEST 2,050.93 FEET FROM HORIZONTAL CONTROL STATION "BUCK" HAVING
A GRID COORDINATE VALUE OF NORTHING 525199.56 U.S. SURVEY FOOT AND FASTING
1513406.22 U.S. SURVEY FOOT, BASED UPON THE CALIFORNIA STATE PLANE
COORDINATE SYSTEM OF 1983, ZONE VI, NORTH AMERICAN DATUM OF 1983 PER
RECORD OF SURVEY NO. 88 -1069, FILED IN BOOK 120, PAGE 37, RECORDS OF SAID
COUNTY; THENCE CONTINUING ALONG (CENTERVIEW ANNEXATION) THE "HARBOR VIEW"
ANNEXATION, ANNEXATION NO. 8, CITY BOUNDARY 1928 (COURT CASE NO. 23686)
INCORPORATED SEPTEMBER 1, 1906; THE "CORONA HIGHLANDS" ANNEXATION, THE
"SEAWARD 17" ANNEXATION,. THE "CAMEO HIGHLANDS" ANNEXATION, THE ANNEXATION
NO. 82 RECORDED AS "ANNEXATION NO. 84 ", THE "CAMEO HIGHLANDS" ANNEXATION,
THE "ANNEXATION NO. 64 ", THE "CAMEO CLIFFS" ANNEXATION" THE "SHORE CLIFFS
- CAMEO SHORES TIDELANDS ANNEXATION" THROUGH THEIR VARIOUS COURSES IN A
GENERAL SOUTHEASTERLY, SOUTHWESTERLY, SOUTHEASTERLY, SOUTHERLY, WESTERLY,
LEG \1331- LGLI.O (04/23/01) SE PAGE 1 OF 9
EXHIBIT `A'
0
NEWPORT COAST ANNEXATION NO.CAOO -XX
TO THE CITY OF NEWPORT BEACH
SOUTHERLY, EASTERLY, SOUTHERLY, WESTERLY, SOUTHERLY, SOUTHEASTERLY,
SOUTHERLY, SOUTHWESTERLY, WESTERLY, NORTHWESTERLY, SOUTHWESTERLY,
WESTERLY, SOUTHWESTERLY, SOUTHERLY, NORTHWESTERLY, SOUTHWESTERLY;
WESTERLY, SOUTHEASTERLY, NORTHEASTERLY, SOUTHERLY, SOUTHWESTERLY,
NORTHWESTERLY AND SOUTHWESTERLY DIRECTION TO AN ANGLE POINT ON THE
BOUNDARY OF THE CITY OF NEWPORT BEACH AS ESTABLISHED BY "SHORE CLIFFS -
CAMEO SHORE TIDELANDS ANNEXATION ";
THENCE LEAVING SAID CITY BOUNDARY IN A DIRECT LINE NORTHEASTERLY ±3 MILES
TO A POINT ON THE MEAN HIGH TIDE OF THE PACIFIC OCEAN; SAID POINT BEARING
SOUTH 37 039'50" WEST ±600 FEET FROM THE NORTHWEST CORNER OF PARCEL 3 OF
"PARK PROPERTY" AS DESCRIBED IN CORPORATION GRANT DEED TO THE STATE OF
CALIFORNIA ON FILE DECEMBER 19, 1979, IN BOOK 13439, PAGE 94 -132 IN THE
OFFICE OF THE COUNTY RECORDER, SAID POINT BEING THE SOUTHWESTERLY
PROLONGATION OF THAT CERTAIN COURSE "NORTH 37 039'50" EAST 104.98 FEET" AS
DESCRIBED IN SAID DEED IN THE WESTERLY BOUNDARY OF PARCEL 3 OF SAID "PARK
PROPERTY ";
THENCE ALONG SAID SOUTHWESTERLY PROLONGATION "NORTH 37 039'50" EAST TO THE
SOUTHWESTERLY TERMINUS OF THAT CERTAIN COURSE "NORTH 37 039'50" EAST 104.98
FEET" IN THE NORTHWESTERLY BOUNDARY OF SAID PARCEL 3, SAID TERMINUS ALSO
BEING ON THE NORTHEASTERLY RIGHT OF WAY LINE OF THE PACIFIC COAST HIGHWAY
BEING A HIGHWAY OF VARIABLE WIDTH, AND FURTHER DESCRIBED IN BOOK 487, PAGE
1 OF DEEDS IN THE OFFICE OF THE COUNTY RECORDER;
THENCE LEAVING SAID NORTHEASTERLY RIGHT OF WAY LINE ALONG THE
NORTHWESTERLY BOUNDARY LINE OF PARCEL 3 OF SAID "PARK PROPERTY", NORTH
FEET; THENCE
NORTH 37 039'50" EAST 104.98 FEET TO THE BEGINNING OF A TANGENT
950.00 FOOT RADIUS CURVE CONCAVE
TO THE SOUTHEAST; THENCE ALONG
THE ARC OF SAID CURVE
NORTHEASTERLY, 219.65 FEET THROUGH A CENTRAL ANGLE OF
13 014'50"; THENCE
I.EG \1331- LGLI.00C (04/23/01) SE
PAGE 2 OF 9
7 /1
•
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CAOO -XX
TO THE CITY OF NEWPORT BEACH
NORTH
50 054'.40"
EAST
1645.45
FEET
TO THE
BEGINNING OF A TANGENT
1300.00
FOOT RADIUS CURVE
CONCAVE
TO THE WEST; THENCE
ALONG THE
ARC OF SAID CURVE
NORTHEASTERLY,
1590.29
FEET
THROUGH
A CENTRAL ANGLE OF
70 005'24
"; THENCE
NORTH
19 010'44"
WEST
387.88
FEET;
THENCE
SOUTH
84 042'47"
EAST
288.52
FEET;'
THENCE
NORTH
58 039'02"
EAST
1018.72
FEET;
THENCE
NORTH
74 008'04"
EAST
197.52
FEET;
THENCE
NORTH
60 027'40"
EAST
137.93
FEET;
THENCE
SOUTH
68 054'28"
EAST
150.05
FEET;
THENCE
NORTH
66 048'05"
EAST
167.55
FEET;
THENCE
NORTH
04 038'08"
EAST
74.24
FEET;
THENCE
SOUTH
87 003'52"
EAST
84.20
FEET;
THENCE
NORTH
23 021'06"
WEST
232.34
FEET;
THENCE
NORTH
51 008'19"
EAST
310.79
FEET;
THENCE
NORTH
31 050'33"
EAST
223.66
FEET;
THENCE
NORTH
11 055'46"
WEST
290.27
FEET;
THENCE
NORTH
30 002'00"
EAST
147.85
FEET;
THENCE
NORTH
35 052'56"
WEST
232.03
FEET;
THENCE
NORTH
10 031'40"
EAST
229.87
FEET;
THENCE
NORTH
46 °28'08"
EAST
55.17
FEET;
THENCE
LEG \1331 -L M.00C 104/23/011 SE PAGE 3 OF 9
7
E
EXHIBIT 1A'
NEWPORT COAST ANNEXATION NO.CA00 -XX
TO THE CITY OF NEWPORT BEACH
NORTH 67 °53'26" EAST
NORTH 38 031'49" EAST
NORTH 24 035'24" EAST
NORTH 03 052'43" EAST
NORTH 19 050'41" EAST
NORTH 49 001'42" EAST
NORTH 73 052'21" EAST
NORTH 60 049'09" EAST
NORTH 11 °48'47" EAST
138.16 FEET; THENCE
138.06 FEET; THENCE
129.77 FEET; THENCE
118.27 FEET; THENCE
141.40 FEET; THENCE
150.97 FEET; THENCE
172.80 FEET; THENCE
176.38 FEET; THENCE
312.62 FEET; THENCE
NORTH 03 021'59" WEST 272.47 FEET TO THE SOUTHEASTERLY TERMINUS OF
THAT CERTAIN COURSE "SOUTH
28 044'47" EAST 328.52 FEET" IN
THE EXISTING WESTERLY BOUNDARY
OF "PARK PROPERTY" AS DESCRIBED
IN CORPORATION GRANT DEED TO THE
STATE OF CALIFORNIA RECORDED
NOVEMBER 17, 1981 ON FILE IN
BOOK 14292, PAGE 953 -965 IN THE
OFFICE OF THE COUNTY RECORDER;
THENCE ALONG SAID WESTERLY
BOUNDARY
NORTH
NORTH
NORTH
NORTH
NORTH
NORTH
28 044'47" WEST
11 021'29" EAST
08 021'57" WEST
29 047'31" EAST
80 008'45" EAST
30 018'40" EAST
L \1331 -L LI.O (04/23/01) SE
328.52 FEET; THENCE
467.15 FEET; THENCE
68.73 FEET; THENCE
301.90 FEET; THENCE
383.72 FEET; THENCE
301.17 FEET; THENCE
PAGE 4 OF 9
? �1
0
0
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA00 -XX
TO THE CITY OF NEWPORT BEACH
NORTH
79 056'51"
EAST
NORTH
49 046'51"
EAST
NORTH
75 °36'00"
EAST
NORTH
88 017'55"
EAST
NORTH
02 027'46"
EAST
NORTH
25 047'27"
EAST
NORTH
89 015'21"
EAST
NORTH
11 034'59"
EAST
NORTH
11 006'16"
WEST
NORTH
10 047'04"
EAST
NORTH
35 006'10"
EAST
NORTH
16 038'20"
EAST
NORTH
18 054'59"
WEST
NORTH
16 025'40"
EAST
NORTH
29 010'03"
EAST
NORTH
14 024'00"
EAST
NORTH
52 °16'30"
EAST
NORTH
80 017'00"
EAST
NORTH
37 027'15"
EAST
SOUTH
33 000`20"
EAST
NORTH
70 038'36"
EAST
LEG \1331- LGLI.D (04123101) SE
446.86 FEET; THENCE
390.27 FEET; THENCE
152.80 FEET; THENCE
404.18 FEET; THENCE
186.17 FEET; THENCE
330.97 FEET; THENCE
308.03 FEET; THENCE
2549.93 FEET; THENCE
1038.44 FEET; THENCE
235.15 FEET; THENCE
551.26 FEET; THENCE
181.60 FEET; THENCE
188.16 FEET; THENCE
424.32 FEET; THENCE
196.98 FEET; THENCE
152.80 FEET; THENCE
67.01 FEET; THENCE
148.12 FEET; THENCE
274.61 FEET; THENCE
789.39 FEET; THENCE
784.31 FEET; THENCE
PAGE 5 OF 9
EXHIBIT 'A'
NEWPORT COAST ANNEXATION NO.CA00 -XX
TO THE CITY OF NEWPORT BEACH
SOUTH 02 059'35" WEST 306.42 FEET; THENCE
SOUTH 22 006'00" EAST 356.17 FEET; THENCE
SOUTH 35 018'58" EAST 2345.66 FEET; TO WESTERLY TERMINUS OF THAT
CERTAIN COURSE "SOUTH 44 °31'21"
EAST 678.84 FEET" IN THE
EXISTING NORTHEASTERLY BOUNDARY
OF SAID BOOK 13439, PAGE 94 -132;
THENCE LEAVING THE BOUNDARY OF
SAID BOOK 14292, PAGE 953 -956
AND ALONG THE NORTHEASTERLY
BOUNDARY OF SAID BOOK 13439,
PAGE 94 -132
SOUTH
44 031'21"
EAST
678.84
FEET;
THENCE
SOUTH
71 026'28"
EAST
584.39
FEET;
THENCE
SOUTH
85 006'26"
EAST
515.88
FEET;
THENCE
SOUTH
74 032130"
EAST
420.20
FEET;
THENCE
SOUTH
66 °47'38"
EAST
548.66
FEET;
TO A POINT ON THE
SOUTHEASTERLY
LINE OF BLOCK 161 OF SAID
IRVINE'S SUBDIVISION;
THENCE
LEAVING THE
NORTHEASTERLY
BOUNDARY OF SAID
BOOK 13439,
PAGE 94 -132 AND
ALONG THE
SOUTHEASTERLY LINE
OF SAID BLOCK
161
LEG \1331- LGL1.00C (04/23/01) SE PAGE 6 OF 9
E
0
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CAOO -XX
TO THE CITY OF NEWPORT BEACH
NORTH 40 033'59" EAST 262.79 FEET; TO A POINT ON THAT CERTAIN
COURSE BEARING "NORTH 68 °22'13"
WEST 560.20 FEET" IN THE
EXISTING BOUNDARY OF "THE
PROPERTY" DESCRIBED IN GRANT
DEED TO THE CITY OF LAGUNA BEACH
RECORDED JUNE 27, 1991 AS
DOCUMENT NO. 91- 330557 IN THE
OFFICE OF THE COUNTY RECORDER;
THENCE ALONG SAID COURSE AND THE
SOUTHWESTERLY BOUNDARY OF "THE
PROPERTY" OF SAID GRANT DEED
NORTH 68 021'18" WEST 321.71 FEET; THENCE
NORTH 60 007'54" WEST 785.39 FEET; THENCE
SOUTH 83 028'56" WEST 326.82 FEET; THENCE
NORTH 66 044'01" WEST 658.40 FEET; THENCE
NORTH 39 006'41" WEST 465.65 FEET; THENCE
NORTH 54 032'38" WEST 526.14 FEET; THENCE
NORTH 34 026'23" WEST 410.92 FEET; THENCE
NORTH 12 044'59" EAST 337.73 FEET; THENCE
NORTH 24 022'24" WEST 331.27 FEET; THENCE
NORTH 38 033'34" WEST 489.32 FEET; THENCE
NORTH
22 014'13"
WEST
315.36
FEET;
THENCE
NORTH
41 041'22"
WEST
538.97
FEET;
THENCE
NORTH 46 030'42" WEST 848.19 FEET; THENCE
NORTH 71 006'53" WEST 244.14 FEET; THENCE
LEG \1331 -WLI.D (04/23/01) SE PAGE 7 OF 9
0
EXHIBIT `A'
0
NEWPORT COAST ANNEXATION NO.CA00 -XX
TO THE CITY OF NEWPORT BEACH
SOUTH 89 008'04" WEST 252.22 FEET; TO THE SOUTHWESTERLY
PROLONGATION OF THE COURSE
DESCRIBED AS "NORTH 40 °00'00"
EAST 660.00 FEET" IN ANNEXATION
NO. 1 (FRAZIER ANNEXATION) TO
THE CITY OF IRVINE; THENCE ALONG
SAID PROLONGATION
NORTH 40 033'37" EAST 221.32 FEET TO A POINT IN THE SOUTHEASTERLY BOUNDARY
OF THE CITY OF IRVINE AS ESTABLISHED BY "REORGANIZATION NO. R097 -04"
DISTANT THEREON SOUTH 64 016'17" EAST 1339.16 FEET FROM THE NORTHWESTERLY
TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS "NORTH 64 016'17" WEST 4468.85
FEET" IN THE CENTERLINE OF TR -73 (SAN JOAQUIN HILLS TRANSPORTATION
CORRIDOR) AS DESCRIBED IN PARCEL 1 OF SAID REORGANIZATION NO. R097 -04;
THENCE ALONG SAID EXISTING CITY BOUNDARY AND THE CENTERLINE OF TR -73 PER
SAID "REORGANIZATION NO. R097 -04" THROUGH THEIR VARIOUS COURSES IN A
GENERAL NORTHWESTERLY DIRECTION TO AN ANGLE POINT IN THE EXISTING CITY OF
NEWPORT BEACH BOUNDARY AS ESTABLISHED BY "REORGANIZATION NO. R097 -35 ",
SAID POINT BEING THE SOUTHEASTERLY TERMINUS OF THAT COURSE DESCRIBED AS
"NORTH 690 24'23" WEST 2092.48 FEET ";
THENCE ALONG SAID EXISTING CITY BOUNDARY PER SAID "REORGANIZATION NO.
R097 -35" THROUGH ITS VARIOUS COURSES IN A GENERAL NORTHWESTERLY,
SOUTHERLY, SOUTHEASTERLY AND NORTHWESTERLY DIRECTION TO THE TRUE POINT OF
BEGINNING.
CONTAINS 5,615 ACRES, MORE OR LESS.
ATTACHED HERETO AND MADE A PART HEREOF, IS A MAP DESIGNATED AS EXHIBIT
IN BI.
THIS LEGAL DESCRIPTION WAS PREPARED BY ME, OR UNDER MY SUPERVISION ON July
12, 2000.
REX S. PLUMMER
LS 6641
EXPIRATION DATE 12/31/03
LEG \1331 - LGLI -DD (04/23/01) SE
DATE
PAGE 8 OF 9
•
EXHIBIT `A'
9
NEWPORT COAST ANNEXATION NO.CAOO -XX
TO THE CITY OF NEWPORT BEACH
THIS PROPOSAL DOES MEET THE APPROVAL OF
THE ORANGE COUNTY SURVEYOR'S OFFICE.
DATED THIS DAY OF , 2001.
BY:
JOHN CANANS, COUNTY SURVEYOR
LEG \1331- LGLI.DOC (04/23/01) SE PAGE 9 OF 9
7--I
BLOCICA 5151, 5152, 5251, 5252
5253 5351, 5352
MODULES VARIOUS
SAN JOAQUIN HILLS TRANSPORTAMON
CORRIDOR
_ — — BONITA — — I—
— — —
( '
CANYON
ROAD
CrtY or urvwH
ROAQFORD
I
1
I
i
\?N\1A5i
I
CRY OF
I
to '
ni
N6BACHT
I
I
__ _ _ v'
wl• tiles
I
HIACIW ACOAST
Y
I
�Iri
I
I
O
INDEX MAP
WTO r E
ORDIGTES SWEET NUMBER
5HE 1 OF 4
" EMSANC = OF NEWPORT BEACH BOUNMY PER
REM MZATION N0.97 -35.
— — — -
^ " EkSTRG CITY OF NEWPORT BEACH BOUNDARY PER
VARIOUS AHNEYAROHS
. ' ' EMSDNO CITY OF RME BCtMARY PER REORGMZADOY
f N0. 97 -04,
CRYSTAL COVE STALE PARK BCM/NDARY.
O
— CRYSTAL
G _
GB
BTAY9
PARK
s
L —
• BOUNDARY OF DEED GRANTED TO THE CITY OF LACUNA
BEACH RECORDED .VNE 27, t991 AS DOG Na 91- JJ0557
® MCA TES SHEET HUNKER
P.O.G RpCA TES POINT OF CCUMEIMENT
T.P.OE. OOCATES TRUE PORT OF BEMOG
A INDICATES HORIZONTAL CONTROL STARON AS NOTED
INS �STMENT CONTAINS 5615 ACRES MORE OR LESS
PREPARED BY ME OR UNDER
MY Dow SUMMON
LS 6641
CIMEER PRES
12%31/03
TNL4 PROPOSAL DOES MEET THE APPROVAL OF THE
ORANGE COUNTY SURVEYORS OFROE
DATED DOS _PAY OF 2001
JOHN CANAS COUNTY SURVEYTH
EXHIBI T "B"
REURCAATZATION N0. RO
GOOD TD♦ � OF T CHI
Project tsign ConalYltants
PEIAAIAO fl107NllRYM SSRImAO
TOY -jr Shw4 S 900. Son X DL9I
30.339.91" M U4 9349
EXHIBIT C
PLANNING AND ENVIRONMENTAL MIST-CRY
•
Date
Document
Actton/Ap roval
Relationship to Pro Pro'
Irvine Coastal Community
Approved by the County; denied
Established a maximum residential b-u- d out for
General Pan Amendment
by the Califomia Coastal
Irvine Coast of 12,000 DUs. Acted as County
Final EIR No. 134.
Commission (as LCP dcamnent)
General Plan and proposed as fast coastal LCP to
Coastal Commission.
19821
Irvme Coast Local Coastal
Approved by the County; certified
Established as first LGP for Irvine Coast
1983
Program 80-M and Use
by the California Coastal
Maximum residential build out of 2,000 units,
Element Amendment 804-
Commission
provided other land uses, development policies,
Supplemental EIR Na 237,
and regulations. Determined Coastal Act
LCP Implementation Action
Consistency. For PA 3 (similar area to proposed
Plan.
project area) established maximum of 85 SF DUs.
PA14: 250 overnight accommodations and 25,000
square feet of related commercial uses.
19871
First Amendment to the Irvine
Approved by the County, and
Established a maximum residential build out of
1988
Coast Local Coastal Program
certified by the California Coastal
2 .600 units, land uses, intensity of use,
Land Use Plan and
Commission
development policies, and regulations.
Implementing Ordinance for the
Determined Coastal Act consistency. Similar land
Irvine Coast Planning Unit
use designations and build out within proposed
pro area as was approved in the 1982 LCP.
1988/
FEIR No. 486, Irvine Coast
Certified by the County of
Serves as an implementing mechanism for the
1996
Planned Community
Orange
Irvine Coast LCP. Addressed impacts based on
Development Agreement
build out of pro'ad pursuant to the 1988 LCP and
Addendum for Development
Development Agreement
Agreement First Amendment
88
FEIR No. 485; IM78 Coast
Certified by the County of
Addressed environmental impact of backbone
Planned Community Master
Orange
infrastructure, roadways, and subdivision of 2,813
Coastal Deveopment Permit
ages, evaluating 23 of 44 Master COP land use
MCDP 88-1IP and Vesting A-
planning areas. EIR analysis included PAs 3A, 3B
Tenf &e Tract Map No. 13337.
and 14; addressed construction of Sand Canyon
Avenue through PAs 3A and 3B; partial widening
of PCH along The Irvine Company property;
construction of backbone drainage system as
recommended in the RMDRMP; construction
and/or relocation of master utilities and
construction of backbone domestic water storage
and distribution system and backbone wastewater
collection system. FEIR 485 did not address
spedtk development proposals for residential,
tourist commercat, or golf course development.
Subsequent EIRs, in conjunction with subdivision
'B' maps and project Coastal Development
Permits, have addressed area spLxifto proposals.
1989
Final EIR No. 511, Irvine Coast
Certified by the County of
ua consuucuon e mpam for 11
Planned Community, Phase L
Orange
individual projects (residential and gotf course
uses) in addition to the realignment of Lower Loop
Road (now named Pelican Hill Road). Included
PAs 3A, 36, 14. Proposed development in PAs
3A, 3B, and 14, as addressed in FOR 511, was
low density (estate/custom lot) residential units.
FOR 611 addressed the First Amendment to the
MCOP and the Second revised Vesting 'A'
Tentative Tract map 13337. As part of the First
Amendment to the MCOP, planning area
boundaries, including those of 3A, 36. and 14,
were adjusted from boundaries established in ft
0
Data
Document
ActiordAp novel
Relationship to Proposed Project
original MCDP and LCP documents; and
development densities in PAs 3A and 38 were
changed from 0-2 dulao as stated in the certified
LCP, to 0.3 dulac in the MCDP First Amendment
1989
Refined Master Drainage and
Approved by the County of
Recommended backbone drainage Improvement
RuroflManagement Plan
Orange
system for the NCPC. Drainage and
sedimentation control measures are included as
part of each subsequent development project
within the MCDPINCPC. The RMDRMP
addressed facilities to mitigate increased peak
runoff volumes and rates due to planned
development The RMDRMP is the master
improvement plan from which subsequent site
specific storm runoff management plans for NCPC
development areas are derived. Each
development project must engage a runoff
management system that will maintain post- project
flow rates to within ten percent of the pre-
developed condition, in accordance with the
certified LCP.
1994
Addendum to FEIR No. 511 -PA
Certified by the County of
Site Development Permit to allow mass grading in
940113 Srie Development
Orange
PA 3A and for a borrow site (in PA 38) in an area
Perm WUishbone Hill Graoing,
previcuslyanalyzed for development
1995
Mitigated Negative Declaration
Approved by the County of
Negative Declaration addressed potential
No. IP -95 -100, Transportation
Orange
environmental effects of deleting segments or
Element Amendment 951
Sand Canyon Avenue and San Joaquin Hills Road
from the County Master Plan of Arterial Highways
(MPAH). Most relevant to the proposed project,
NC Phase N -2, the approval of the MPAH
amendments removed the master planned
segment of San Canyon Avenue from its existing
terminus just north of PCH to the San Joaquin Hills
Transpo nation Corridor (SJHTC), and deleted the
then planned interchange of San Canyon Avenue
at the SJHTC. The removal of this planned
segment was the result of changes in future land
uses in the City of Irvine (PA 22) that would result
in more open spacelless development and in
unincorporated Orange County property/Newport
Coast/Newport Ridge areas. Therefore, San
Canyon Avenue north of PCH has been clanged
in name (application in review at County) to Crystal
Cove Drive, and will serve as a community
accesslentry stmt rather than a County arterial.
a LCP Second Amendment further mod e
1996
Second Amendment to the
pprov by the County of
Newport Coast Local Coastal
Orange, and certified by the
LCP by adjusting planning area boundaries and
Program Land Use Plan and
California Coastal Commission
open space boundaries adjacent to Crystal Cove
Implementing Ordinance for ft
State Park to improve habitat connectivity; the
Newport Coast Planning Unit
Second Amendment increased the maximum
number of dwelling units allowed in undeveloped
planning areas to match the low end of density
ranges established by the land use categories
while maintaining the maximum allowed 2,600 total
dwelling units in the NCPC; technical revisions
were made to the LCP including name changes to
roads and planned communities.
1996
Natural Community
—Certified by the County of
Addressed NCCFIHCP for Central/Coastal Orange
Conservation Plan and Habitat
Orange, California Department of
County. Plan includes 37,000 we reserve
Conservation Plan Joint
Fish and Game, and U.S. Fish
system, authorizes incidental take of coastal sage
Programmatic FEIR No.
and Nhidlife Service
scrub, and provides regulatory coverage for 39
553IFEIS 96-26
individual species. The proposed projects" is not
within the NCCP Reserve since the site was
master planned for development. Mitigation
measures prescribed in FEIR 511 and FOR
553/FEIS 96 -26 (NCCP) pertain to project impacts
553/FEIS 96-26
individual species. The proposed Droiect site is not
tl�
Date
Document
ActionlA royal
Relationship to Proposed pro
1996
Addendum to Final EIR No_
Adopted by the County of
Addressed proposed amendments to the Central
553 for the County of Orange
Orange
and Coastal NCCP/HCP to retied relevant
Centrat and Coastal Subregion
provisions of the Second Amendment to the
Natural Community
Newport Coast local Coastal Program (lCP). The
Conservation Plan and Habitat
amendments to the NCCPlHCP included a)
Conservation Plan
revisions to the Coastal Subarea Reserve to reflect
new development and open space configurations
provided for in the LCP Second Amendment; b)
corresponding elimination of certain Special
Linkage Areas, and c) provisions for infrastructure
to be located in areas proposed to be added to the
Coastal Subarea Reserve. The amendments to
the Reserve System boundaries represent an
overall increase In total acreage of the Coastal
Subarea Reserve, and significant improvements in
wikffife connectivity within the Reserve System.
1997
Addendum PA 970046 to EIR
Certified by the County of .
Addressed a modified development plan for one-
No. 511
Orange
half of Planning Area 3A, known as Development
Area (DA) 3A -1. The proposed project site is not
within DA 3A -1.
1997
Settlement Agreement between
Agreement has been executed.
Establishes maximum dwelling units by planning
The Irvine Company, Friends of
area and various other restrictions on
Me Irvine Coast Laguna
development, which are reflected in the proposed
Graenbelt, Inc., and Stop
project.
Polluting Our Newport
i
tWS kafthued*=harnVWMP*rW0a%WHC
•
r � i
r r ,
0
0
EXHIBIT D
SUMMARY OF COUNTY DEVELOPMENT APPROVALS
The Components of the Development Plan include:
A. Newport Coast Local Coastal Program Second Amendment Approved by the
California Coastal Commission on October 10,1996; Certified by the County of Orange
Board of Supervisors on December 3, 1996 (Resolution No. 96-861 and Ordinance No.
096 - 3974); and Certified by the California Coastal Commission on January 21, 1997;
B. Newport Ridge Planned Community Program: Approved by the County of
Orange Board of Supervisors on March 17, 1998 (Resolution Nos. 98 -87 and 98 -88;
Ordinance No. 98 -3);
C. Newport Coast Master Coastal Development Permit Seventh Amendment (PA
970152): Approved by the County of Orange Planning Commission on July 21, 1998;
D. First Amendment to the Irvine Coast Development Agreement Recorded April 2,
1997 (No. 19970149745); and
• lw Related secondary implementing approvals, permits and actions pursuant to and
consistent with the foregoing (e.g., subdivision maps, individual coastal development
permits, grading plan approvals and permits, etc.).
r;
EXHIBIT E
MITIGATION MEASURES
*he term Mitigation Measures includes, but is not limited to, the mitigation measures approved in
conjunction with the certification or approval of the following environmental and planning documents.
This Exhibit is for information only and does not constitute any modification or amendment or any
mitigation measure or condition adopted with reference to the Project. The environmental
documents listed in this Exhibit are on file in the Planning Department of the City of Newport Beach.
Irvine Coastal Community General Plan Amendment, Final EIR No. 134;
2. Irvine Coast Local Coastal Program 80 -41Land Use Element Amendment 80-4; Supplemental
EIR No. 237, LCP Implementation Action Plan;
3. FEIR No. 486, Irvine Coast Planned Community Development Agreement. Addendum for
Development Agreement First Amendment
4. FEIR No. 485, Irvine Coast Planned Community Master Coastal Development Permit MCDP
88 -11P and Vesting "A° Tentative Tract Map No. 13337
5. Final EIR No. 511, Irvine Coast Planned Community, Phase I
6. Refined Master Drainage and Runoff Management Plan
�. Addendum to FEIR No. 511 -PA 940113 Site Development Permit/Wishbone Hill Grading
8. Mitigated Negative Declaration No. IP -95 -100, Transportation Element Amendment 95-1
9. Natural Community Conservation Plan and Habitat Conservation Plan Joint Programmatic
FEIR No. 553IFEIS 96 -26
10. Second Amendment to the Newport Coast Local Coastal Program Land Use Plan and
Implementing Ordinance for the Newport Coast Planning Unit
11. Addendum to Final EIR No. 553 for the County of Orange Central and Coastal Subregion
Natural Community Conservation Plan and Habitat Conservation Plan
12. Addendum PA 970046 to EIR No. 511
•
'J
EXHIBIT F
0
• AFFORDABLE HOUSING IMPLEMENTATION PLANS
The term Affordable Housing Implementation Plans refers to two plans prepared for the
Environmental Management Agency of the County of Orange. The plan for that portion of the
Property within the Coastal Zone - identified as the "Affordable Housing Implementation Plan - Irvine.
Coast Planned Community" - was prepared by Affordable Housing Consultants and was approved
by the County on October 29, 1991.
The plan for the Newport Ridge - identified as the "Affordable Housing Implementation Plan — The
San Joaquin Hills Planned Community" - was prepared by FORMA and was approved by the
County on November 2, 1995.
These Affordable Housing Implementation Plans are available for public inspection in the Planning
Department of the City of Newport Beach during normal business hours.
E
0
! 1.11
AMENDED IN SENATE MAY 2, 2001
AMENDED IN SENATE APRIL 17, 2001
AMENDED IN SENATE MARCH 27, 2001
SENATE BILL No. 516
Introduced by Senator Johnson
(Coauthor: Assembly Member John Campbell)
February 22, 2001
An act to add Section 30519.2 to the Public Resources Code, relating
to coastal planning, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 516, as amended, Johnson. Local coastal programs.
(1) The California Coastal Act of 1976 requires that, after a local
coastal program is certified and all implementing actions within the area
affected become effective, the California Coastal Commission ceases
to exercise any development review authority over any new
development proposed within the area affected and delegates that
authority to the local government that is implementing the local coastal
program.
This bill would require the County of Orange to exercise all
development review authority pursuant to the certified local coastal
program over those parcels and areas within the county, generally
known as the "Annexed Area," upon the effective date of any
reorganization or annexation by the City of Newport Beach that
includes all or part of the Annexed Area.
The bill would authorize the City of Newport Beach, at any time after
the effeetive date e f the `=" that annexation, if it elects to assume
96
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La J
SB 516 —f?—.
0
coastal management responsibility for the Annexed Area, to begin
preparation of a local coastal program for that area, and to adopt
provisions of the County of Orange's certified local coastal program
that would apply to the Annexed Area. The bill would require that
specified statutes and regulations governing procedures for the
preparation, approval, and certification of a local coastal program by
the California Coastal Commission be applicable to the eiaq - adeptiex
preparation, approval, and certification of a local coastal program for
the Annexed Area. The bill would require the City of Newport Beach,
if it deeides to apply #ef obtains certification of a local coastal program
for the Annexed Area pursuant to those provisions, upon the effective
date of that certification, to exercise all of the authority under the act
granted to a local government with a certified local coastal program,
and would provide that the aforementioned provisions requiring the
County of Orange to exercise all development review authority
pursuant to the certified local coastal program over those parcels and
areas within the county defined as the Annexed Area shall become
inoperative. The bill would require the City of Newport Beach to
provide for a eertified submit to the commission for approval and
certification on or before June 30, 2003, or 24 months after the effective
date of the annexation of the Annexed Area, the city's local coastal
program for all of the
the ei"� limits within 36 menths of the efleetive date of the amex
of all or paA of the Annexed Areft geographic area within the coastal
zone and the city's corporate boundaries as of June 30, 2000. By
requiring the City of Newport Beach to provide feF submit a eel
local coastal program for specified territory that lies inside the city
limits within a specified time period, the bill would impose a
state - mandated local program.
The bill would require the City of Newport Beach to submit a late fee
of $1,000 per month to the commission, to be deposited into an account
created by the bill, until the city commences implementation of an
effectively certified local program, as specified.
(2) The bill would state the findings and declarations of the
Legislature that, due to unique circumstances applicable to the County
of Orange, a statute of general applicability cannot be made applicable.
(3) The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
reimbursement.
96
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—3—
n
U
SB 516
This bill would provide that no reimbursement is required by this act
for a specified reason.
(4) This bill would declare that it is to take effect immediately as an
urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes. State - mandated
local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. Section 30519.2 is added to the Public
2 Resources Code, to read:
3 30519.2. (a) (1) This seeEien subdivision shall only apply to
4 territory laeated within the Go" ef Ofange generally, known
5 described in paragraph (2) and defined as the "Annexed Area."
6 (2) For purposes of this section, "Annexed Area" means the
7 territory consisting of approximately 5,450 acres in the County of
8 Orange bounded to the north by the inland boundary of the coastal
9 zone, to the east by the western boundary of Crystal Cove State
10 Park, to the south by the state's outer limit of jurisdiction over the
it Pacific Ocean, and to the west by the city limits of the City of
12 Newport Beach.
13 (b)-
14 (3) This seetiee shall ".'_.. effe subdivision shall be operative
15 upon the effective date of the annexation of all or part of the
16 Annexed Area by the City of Newport Beach.
17 (0-
18 (4) Upon the recordation of a certificate of completion of any
19 reorganization or change of organization that results in the
20 annexation of all or part of the Annexed Area by the City of
21 Newport Beach, both of the following shall occur:
22 (4i
23 (A) The local coastal program applicable to any part of the
24 Annexed Area shall continue to be the certified local coastal
25 program for the County of Orange.
26 {2}
27 (B) The County of Orange shall continue to exercise all
28 development review authority described in Section 30519, as
29 delegated to it by the commission pti-suant to consistent with the
30 certified local coastal program €eF of the County of Orange for the
31 Annexed Area.
96
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5B 516
1
2
3
4
5
6
7.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
• •
—4—
(d) (1)
(5) If, at any time after the
during the 2901 peftion of the 2001 02 RegWar Session,
recordation of the certificate of completion of the annexation of the
Annexed Area, the City of Newport Beach elects to assume coastal
management responsibility for the Annexed Area, the city may
begin preparation of a local coastal program for that area The City
of Newport Beach may adopt provisions of the County of Orange's
certified local coastal program that shall apply to the Annexed
Area. All of the procedures for the preparation, approval, and
certification of a local coastal program set forth in this ehapter
division, and any applicable regulations adopted by the
commission, shall apply to theme preparation,
approval, and certification of a local coastal program for the
Annexed Area.
(6) If the City of Newport Beach obtains certification of a local
coastal program for the Annexed Area, the city shall, upon the
effective date of that certification, exercise all of the authority
granted to a local government with a certified local coastal
program, and the provisions of paragraph (4) shall become
inoperative.
(b) On or before June 30, 2003, or 24 months after the
annexation of the Annexed Area, whichever event occurs first, the
City of Newport Beach shall submit to the commission for approval
and certification the city's local coastal program for all of the
geographic area within the coastal zone and the city's corporate
boundaries as of June 30, 2000. The submittal may include a local
coastal program segment for the Annexed Area that will implement
F
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0
5— SB 516
1 the local coastal program for the County of Orange as described
2 in paragraph (4) of subdivision (a).
3 (c) If the City of Newport Beach fails to submit a local coastal
4 program to the commission for approval and certification
5 pursuant to subdivision (b) or does not have an effectively certified
6 local coastal program within six months after the commission's
7 approval of the local coastal program, the City of Newport Beach
8 shall submit a monthly late fee of one thousand dollars ($1,000)
9 to the commission, to be deposited into the Newport Beach Local
10 Coastal Program Forfeiture Account, which is hereby created in
I1 the General Fund. Moneys in the account may be expended, on
12 appropriation by the Legislature, for purposes of coastal
13 preservation and protection. The City of Newport Beach shall pay
14 the monthly late fee until the time that the city commences
15 implementation of an effectively certified local coastal program.
16 The city may not recover the cost of the late fee from any owner or
17 lessee of property in the coastal zone.
18 SEC. 2. The Legislature finds and declares that, due to the
19 unique circumstances applicable to the territory generally known
20 as the Annexed Area within the County of Orange relating to the
21 certified local coastal program for the county, a statute of general
22 applicability cannot be made applicable within the meaning of
23 subdivision (b) of Section 16 of Article IV of the California
24 Constitution.
25 SEC. 3. No reimbursement is required by this act pursuant to
26 Section 6 of Article XII1 B of the California Constitution because
27 a local agency or school district has the authority to levy service
28 charges, fees, or assessments sufficient to pay for the program or
29 level of service mandated by this act, within the meaning of
30 Section 17556 of the Government Code.
31 SEC. 4. This act is an urgency statute necessary for the
32 immediate preservation of the public peace, health, or safety
33 within the meaning of Article IV of the Constitution and shall go
34 into immediate effect. The facts constituting the necessity are: -ht
35 In deciding to annex territory in the coastal zone, as defined in
36 Section 30103 of the Public Resources Code, generally known as
37 the "Annexed Area ",, Area, " the City of Newport Beach seeks to
38 preserve the open -space dedications and entitlements protected by
39 an existing certified local coastal program. At the same time, in
40 order to effectively fund police and fire protection services among
96
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SB 516 —6—
1 municipal services to the area, the city needs the property tax
2 revenues from the Annexed Area to be allocated to the city for the
3 2002 -03 fiscal year.
IC
96
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�(1
0 • ITEM 32
NEWPORT BEACH CITY COUNCIL,'
June 26, 2001 Regular Meeting J
TO: Members of the Newport Beach City Council
FROM: Dave Kiff, Assistant City Manager
SUBJECT: Amendments to the Annexation and Development Agreement for the
Newport Coast -- ADDENDUM
At the Planning Commissions June 21, 2001 hearing on this matter, the Commission approved a motion
to recommend that the Council approve the proposed amendments to the Development Agreement. The
Commission also accepted staffs suggestion to make additional non - substantive amendments to the
Development Agreement. These include:
► A correction and update of development approvals under Exhibit D to the Development
Agreement (please insert into your packet).
► Corrections to Sections 4.4 (a) and (b). These corrections are provided to the Council in corrected
form on a new Page 13 for the DevelgRment Agreement and are summarized on a new
Attachment A to the Staff Report - please insert both the new Page 13 and the updated
Attachment A into your packet.
• •
EXHIBIT D
Summary of County Development Approvals
The components of the Development Plan include:
A. Newport Coast Local Coastal Program 2nd Amendment and all further amendments adopted
before the City assumes permit issuing authority for the property as provided for within this
Agreement. The Newport Coast Local Coastal Program, 2nd Amendment was approved by
the California Coastal Commission on October 10,1996; certified by the County of Orange
Board of Supervisors on December 3,1996 (Resolution No. % -861 and Ordinance No. 096-
3974); and Certified by the California Coastal Commission on January 21,1997;
B. Newport Ridge Planned Community Program: Approved by the County of Orange Board of
Supervisors on March 17,1998 (Resolution Nos. 98087 and 98 -88; Ordinance No. 98-3);
C. Newport Coast Master Coastal Development Permit 7w Amendment (PA 970152); Approved
by the County of Orange Planning Commission on July 21,1998;
D. First Amendment to the Irvine Coast Development Agreement: Recorded April 2,1997 (No.
19970149745); and
E. Related secondary implementing approvals, permits, and actions pursuant to and consistent
with the foregoing (e.g. subdivision maps, individual coastal development permits, grading
plan approvals and permits, etc.).
0
4.3 Timing of Development. The parties acknowledge that OWNER
cannot at this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors which are not within
the control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465,
that the failure of the parties therein to provide for the timing of Development
resulted in a later adopted initiative restricting the timing of Development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by
acknowledging and providing that OWNER shall have the right to develop the
Property in such order and at such rate and at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Nothing in this
section is intended to alter the standard durational limits of any appliGable permits
issued to OWNER pursuant to Development Approvals.
4.4 Changes and Amendments. The parties acknowledge that
Development of the Project w41-444celymaY require Subsequent Development
Approvals_, and that sennestien thBF9 ith OWNER may determine that
changes in the existing Development Approvals or
Development Plan are appropriate and desirable. In the event OWNER finds that
such a change is appropriate or desirable, OWNER may apply in writing for an
amendment to pfie-r-Development Approvals or the Development Plan to effect
date such change, whish and the application shall be processed for approval by
County. CITY shall expressly permit and authorize modifications of any proposed
changes in the existing Development Approvals or Development Plan that aFe
unless the
proposed modifications:
La -would materially- reduce the amount of open space intended for
dedication to the public, or
(b) would materially alter the cost of providing municipal services to the
Property subsequent to annexation, or
(c) would materially reduce the amount of property tax or other revenue
available to the CITY after annexation, or
(d) would materially increase the density and/or intensity of development
allowed in the Project as a whole, resulting in unacceptable intersection impacts
outside of the Project that cannot be mitigated pursuant to the CITY's Traffic
Phasing Ordinance.
13
Newport Coast Annexation and Devopment Agreement -- Summary oo10
Proposed Changes
(Attachment A)
Development Agreement Section Version .Approved October 24, 2000 As Proposed to be Amended
Newport Coast DA Summary
June 26, 2001
Newport Beach City Council
so
Diswsses rationale behind Development Agreernenl, tads and figures
Non -substantive clmnges to note Coastal Commission approvals,
Recitals
about The Newport Coast, the City, and the property owner.
proper aueage, more.
_—
1
Deflnifions and Exhibits 'Defines terms used In the Agreement, sets forth exhibit descriptions Minor change to exhibit citations (p6.7).
2
General Provisions
Binds the qty to adhere to fix; Agreement. explains how City will
— Binding Effect of Agreement Minor technical change(pe).
.2.1
Idelegate, certain land use authority to the County.
i Decdbes how TIVs obligations under the Agreement terminate when a
.2.2
j — Assignment by TIC
residential lot is sold and has its C of O Issued and for commercial lots
Grammatical, nonsubstanlfve changes (p8 -9).
1 ;when such lot has been fully improved and occupied.
i
3
Pre - Annexation Obligations and Commitments
Expressly authorizes TIC to fully develop the property if the fallowing
I3.1
— Annexation of Property Authorizes City to annex the Newport Coast if LCP can be preserved
co eions a W 58 518 or similar, 1 met
intact and if City grants County all land use authority.
(b) City transfer of municipal land use authority to County via JPA a
similar ordinance or agreement 910).
132
- Describes understanding that:
:(1) E112s that
Minor change to exhibit eitations (pto -11).
all completed and annexation shall not require additional
— Environmental Impacts and Mitigation i
IDescrilles frog that annexation does not require EIR since 8 does
ie) TIC has m tlooument d. of
(2) TIC has met partn, good. other standards for development already.
not change development entitlement (pl1).
3.3
— Additional Pre- Anrrexetion Understandings
Acknowledges that affordable Musing requirements have been met for
Minor change to exhibit citation, grammatical change (P11 -12).
TNC * traffic Im miti ed
3.4
— Cooperation
ITIC will support City's annexation effort
No Change
3.5
— Termination of Annexation Proceedings
ITIC can temdnare if City doesn't meet is wmmiNtents
!Nnor grammatiml dW (p12).
Development of the Property Unpon Annexation and
4
Adoption of the Development Plan
Ciry, expressly declares Mat City will not lake any action that will
4.1
— Rights to Develop
I ;ITIC can develop the properly to full emitlemert.
linterfere with development approvals, including causing perms tirg or
development review to come to the City without TIC's consent unless
Isfullyd nlvelo 12.
— Effect of Agreement on Land Use 12egWations
Agreement will not change approved lard use regulations
Ne Change
142
4.3
— Timing of Development
TIC can develop property according to a timeline set only b)' 71C
:Minor grammatical change (pl3).
i
TIC Trey apply for changes to ft development approvals. Coto tty will iII
process such changes. City will support TIC's changes uNess the
a.a
C and Amendments
— Changes
chargeu. (Clarifies how such changes can be approved City
reduce open specs; Pp by y — no substantive
1(a)
(b) alter the cost of providing services; changes to"to the lex (pl3.10).
�(c) reduce properly tax revenue;
. (d) increase density or intensity;
Newport Coast DA Summary
June 26, 2001
Newport Beach City Council
so
Newport Coast Annexation and Deve-fopment Agreement -- Summary A
Proposed Changes
(Attachment A)
4 Adoption of the Development Plan (corl
14.5 – Continuation or Irvine Coast Development Agreement
i4.6 – Monitoring of Project
i 5 Financing of Public Improve
15.1 – Formation of Financing Dafticts
52 – TIC's dohl to construct facilities
After Annexation
I i
Not in 2000 version
can construct
govern
charge (p14).
IAUthorizes City to enter property to ensure the development proceeds
.in compliance with development approvals and all approvals 'material
Ito the issue of water quality and aesthetics.' (pl4).
so No Change • •
6.1 – Periodic Review DA review every year NO U range
62 – Special Review City can order a special review at City's cost No Change
,a _ Omrar„re rmrnrilv,c hnw tln review will nrnr, r No Chancre
IS4
7
– Certificate of Agreement Compliance
Default and Remedies
– Specific Performance Available
City will issue a certificate of compliance al completion of review if DA No Change
is n compliance
I Describes that specific performance of any remedy is appropriate rather' ' I No Change
than monetari, damages
7.1
7,2
– Restitution of Improper Development Fees
Any improper City development fees can be recoved by TIC
Typographical error correction (pl7).
7.3
– Termination of Agreement
- Describes how Agreement can be terminated
No Charge
7.4
–TIC's right to terminate upon specified events
TIC can terminate if market changes
No Charge
8
I Third Party Litigation
City and TIC will cooperate in any litigation against DA
No Change
9
1 Mortgagee Protection
,DA nor City shall not prevent TIC from securing financing
No Charge
10
Miscellaneous Provisions
Exhibits
– A
'—I Variety of technical provisions, including term, notices, severability.
ILegal Description of the Property
IChanges signature blocks (p23)
MEMO
lCoriforms late changes per the LAFCO submission
– B
Map
Cmforms late changes per the LAFCO submission
– C
Planning and Environmental History
No Changes
– D
Summary of County Development Approvals
Updales to reflect most recent development approvals
– E
Oowments mitigatlon measures
No Changes
–F
Affordable Housing Implementation Plans
No Changes
Newport Coast DA Summary
June 26, 2001
Newport Beach City Council
O13a
having unsatisfactory levels of service taking into account the circulation
improvements constructed or facilitated by OWNER pursuant to conditions
imposed for development of the Project, including
construction of Newport Coast Drive, extension of San Joaquin Hills Road,
widening of Pacific Coast Highway, and facilitation of construction of the
San Joaquin Hills Transportation Corridor.
3.4 Cooperation. Subject to and in reliance upon the representations
and covenants of the CITY herein, OWNER will support the annexation of the
Property by the CITY.
3.5 Termination of Annexation Proceedings. This Agreement may be
terminated by OWNER in the event that CITY fails to comply with the
requirements of Paragraph 3.1 above with respect to any proposed annexation of
Property to CITY, or if conditions imposed by or through the Local Agency
Formation Commission on the annexation are determined by either party to
conflict materially with its rights and obligations under any provision of this
Agreement.
4 DEVELOPMENT OF THE PROPERTY UPON ANNEXATION AND
ADOPTION OF THE DEVELOPMENT PLAN.
Following annexation of the Property by CITY, the following provisions shall apply:
4.1 Rights to Develop. Subject to the terms of this Agreement,
following annexation of the Property OWNER shall have a vested right to develop
the Property in accordance with, and to the extent of, the Development Plan.
Pending annexation to CITY, OWNER shall have the right to seek approvals from
County for the Development of the Property, and to develop the Property,
consistent with the Development Plan. CITY expressly agrees to take no action
that would or could (a) interfere with or impair the Development Approvals (b)
interfere with or impair the OWNER's ability to complete the project (c) materially
increase the cost of completing the project without the OWNER's express written
consent: or (d) cause the transfer of any permitting or development review
authority pursuant to State or local law. including Government Code section
30519, from the County to the City or any other agency until such time as that
4.2 Effect of Agreement on Land Use Regulations. Except as
otherwise provided under the terms of this Agreement, the rules, regulations and
official policies governing permitted uses of the Property, the density and intensity
of use of the Property, the maximum height and size of proposed buildings, and
the design, improvement and construction standards and specifications applicable
12
• •
to Development of the Property, shall be those contained in the Development Plan
and those Land Use Regulations not inconsistent with the Development Plan a_n
tMMM ev, i Kru Irof6 B cc e ancf4effect O , J p=, & 2,'Q51.
4.3 Timing of Development. The parties acknowledge that OWNER
cannot at this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors which are not within
the control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465,
that the failure of the parties therein to provide for the timing of Development
resulted in a later adopted initiative restricting the timing of Development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by
acknowledging and providing that OWNER shall have the right to develop the
Property in such order and at such rate and at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Nothing in this
section is intended to alter the standard durational limits of any app}isable permits
issued to OWNER pursuant to Development Approvals.
1 4.4 Changes and Amendments. The parties acknowledge that
Development of the Project w4144elyma require Subsequent Development
Approvals. ^a that ;^ GeRRGGtiGR 4htweu41 OWNER may determine that
changes in the existing Development Approvals or
Development Plan are appropriate and desirable. In the event OWNER finds that
such a change is appropriate or desirable, OWNER may apply in writing for an
amendment to p4Gf- Development Approvals or the Development Plan to effect
sate such change -, w4wA and the application shall be processed for approval by
County. CITY shall expressly permit and authorize modifications of any proposed
changes in the existing Development Approvals or Development Plan that
tRRt 'th the 1 d Use C1.... eRt Ele6iq atiG G fee the PFe eF+ ,
pOIZO- nJ[OTIC'VV"RTTZTI .rRTISp.�Ci GlGTI"II TT'�Gp, ..'.... .� unless the
proposed modifications_
(al - would materially- reduce the amount of open space intended for
dedication to the public, or
(b) would materially alter the cost of providing municipal services to the
Property subsequent to annexation, or
(c) would materially reduce the amount of property tax or other revenue
available to the CITY after annexation, or
(d) would materially increase the density and /or intensity of development
allowed in the Project as a whole, resulting in unacceptable intersection impacts
outside of the Project that cannot be mitigated pursuant to the CITY'S Traffic
Phasing Ordinance.
13
Authorized to Publish Advertisements of all kinds including public notices by
Decree of the Superior Court of Orange County, California. Number A•6214,
September 29, 1961, and A•24671 June 11, 1967.
PROOF OF PUBLICATION
STATE OF CALIFORNIA)
) ss.
County of Orange )
I am a Citizen of the United States and a
resident of the County aforesaid; I am over
the age of .eighteen years, and not a party to
or interested in the below entitled matter. I
am a principal clerk of the NEWPORT
BEACH -COSTA MESA DAILY PILOT, a
newspaper of general circulation, printed and
published in the City_of Costa Mesa, County
of-Orange, State of California, and that
attached Notice is a true and complete copy
as was printed and published on the
following dates:
June 16, 2001
I declare, under penalty of perjury, that the
foregoing is true and correct.
Executed on June 16 ?0�1
at Costa Mesa, California.
Signature �—
• (,�1 at�� oti
RECEIVED
'01 AN 25 P 1 :49
OFFICE OF THE CITY CLERK.
CITY OF NEWPORT BEACH
ment, and that the City
of Newport Beach in-
' tends to use mid docu-
ment for the above
noted proIject, and
further mat Ihere ere no
additional reasonable al-
tori or mitigation
measures that should be
considered in conjunc-
tion with sold project.
I Copies of the previously
t are avallaole
: review an m-
at the Planning
ant. City of
J
Notice Is hereby
PUBLIC HEARING
further given that said
NOTICE
ublic hearing will be
Reid
Development
on the 26thda of
dour
Agreement No. 14
June, 2001, at the
Coastf
of 7:00 p.m. in the Coun-
cil Chambers of the
Ridge Development
Newport Beach City
Agreement)
Hall. 3300 Newport Sou -
NOTICE IS HEREBY
levaid. Newport Beach,
GIVEN that the City
California, at which time
Council of the City 0"
and place any and all
Newport Beach will hold
persons interested may
st public hearing on the
appear and be heard
application of City of
thereon. If you challenge
Newport Beach, on
this project in own, you
behalf of The Irvine
may be limited to raising
Company, properly
only those Issues you or
owner, for Develop•
someone else raised at
ment Agreement No.
the public hearing de-
14 (Newport Coast/
scribed in this notice or
Ridge Development
in written cor.
Agreement) on propeny
respondence delivered
located at Newport
to the City at, or prior to,
Coast, Newport Ridge,
the public hearing. For
and adjacent properties
information call (949)
within the pending An-
644 -3200.
negation Area. The
/Sit Lavonne M.
property is located in the
1larkless, City Clerk
PC District.
City of Newport Beach
Request to amend
Published Newport
Development Agree.
Beech -Costa Mesa
ment No. 14 (Newport
Daily Pilot June 16,
Coast/Ridge Develop.
2001 Sa524
ment Agreement) to
establish procedures
for administering the
Newport Coast local
coastal program (LCP)
and for monitoring we-
ter quality Improve-
ments.
NOTICE IS HEREBY
FURTHER GIVEN that
all significant
environmental concerns
for the proposed pro7'ect
have been addressed In
a previously certified
ment, and that the City
of Newport Beach in-
' tends to use mid docu-
ment for the above
noted proIject, and
further mat Ihere ere no
additional reasonable al-
tori or mitigation
measures that should be
considered in conjunc-
tion with sold project.
I Copies of the previously
t are avallaole
: review an m-
at the Planning
ant. City of
J
PUBLIC HEARING NOTICE
Development Agreement No. 14
(Newport Coast/Ridge Development Agreement)
NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will
hold a public hearing on the application of City of Newport Beach, on behalf of The Irvine
Company, property owner, for Development Agreement No. 14 (Newport Coast/Ridge
Development Agreement) on property located at Newport Coast, Newport Ridge and
adjacent properties within the pending Annexation Area. The property is located in the PC
District.
Regnest to amend Development Agreement No. 14 (Newport Coast/Ridge
Development Agreement) to establish procedures for administering the Newport Coast
local coastal program (LCP) and for monitoring water quality improvements.
NOTICE IS HEREBY FURTHER GIVEN that all significant environmental concerns
for the proposed project have been addressed in a previously certified environmental
document, and that 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 Department, City of Newport Beach, 3300 Newport Boulevard, Newport
Beach, California, 92658 -8915 (949) 644 -3200.
Notice is hereby further given that said public hearing will be held on the 26th day of June,
2001, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall,
3300 Newport Boulevard, Newport Beach, California, at which time and place any and all
persons interested may appear and be heard thereon. If you challenge this project in court,
you may be limited to raising only those issues you or someone else raised at the public
hearing described in this notice or in written correspondence delivered to the City at, or prior
to, the public hearing. For information call (949) 644 -3200.
fAY4 -JV % I� Pi ►off
�axed io MOW
po�-CArAS
N41 11rd
Pod
b11 (D Lavonne M. Harkless, City Clerk
{� pvx nt City of Newport Beach
2 IcY.�fi��s— bj►loi