HomeMy WebLinkAbout2019-14 - Approving Development Agreement No. DA2018-005 for the Vivante Senior Housing Project Located at 850 and 856 San Clemente Drive (PA2018-185)ORDINANCE NO. 2019-14
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT NO. DA2018-005 FOR THE
VIVANTE SENIOR HOUSING PROJECT LOCATED AT 850
AND 856 SAN CLEMENTE DRIVE (PA2018-185)
WHEREAS, an application was filed by Nexus Development Corporation
representing Vivante Newport Center, LLC ("Applicant"), with respect to property located at
850 and 856 San Clemente Drive, and legally described as Parcel 2 of Newport Beach Lot
Line Adjustment No. 95-3 together with Parcel 2 of Resubdivision No. 501, Assessor's
Parcel Nos. 442-261-05 and 442-261-17 ("Property");
WHEREAS, the Applicant proposes the demolition of the existing Orange County
Museum of Art ("OCMA") (23,632 square feet) and associated administrative office building
(13,935 square feet) to accommodate the development of a 183,983 square foot, six -story
combination senior housing (90 -unit residential dwelling units) and memory care facility (27
beds) ("Project"). The approximately 2.9 acre site is located on San Clemente Drive opposite
the intersection with Santa Maria Road;
WHEREAS, in order to implement the Project, the Applicant, requests the following
approvals from the City of Newport Beach ("City"):
• General Plan Amendment — To amend Anomaly No. 49 to change the land
use category from PI (Private Institutions) to MU -H3 (Mixed -Use Horizontal).
The proposed amendment also includes 90 additional dwelling units and would
reduce the nonresidential floor area from 45,208 square feet to 16,000 square
feet in Statistical Area L1. Table LU1 is amended to reflect a total of 540
dwelling units authorized within the MU -H3 land use designation,
• Planned Community Development Plan Amendment — To modify the San
Joaquin Plaza Planned Community Development Plan (PC -19) to include
development and design standards to allow for 90 senior dwelling units and 27
memory care beds. The Applicant also requests an increase in the height limit
from 65 feet to 69 feet with 10 feet for appurtenances,
• Development Agreement — To provide public benefits should the Project be
approved pursuant to Section 15.45.020 (Development Agreement Required)
of the Newport Beach Municipal Code ("NBMC") because the requested
General Plan Amendment includes 50 or more dwelling units and adds dwelling
units within Statistical Area L1,
• Conditional Use Permit — To allow the operation of the proposed senior
housing and memory care facility, alcohol service for dining hall and lounge
Ordinance No. 2019-14
Page 2 of 6
areas in the form of a Type 47 (On Sale General) and Type 57 (Special On
Sale General) Alcoholic Beverage Control ("ABC') licenses, and ensure land
use compatibility,
• Major Site Development Review — To allow the construction of 90 senior
dwelling units and a 27 -bed memory care facility and to ensure the Project is
developed in accordance with the applicable planned community and zoning
code development standards and regulations pursuant to Section 20.52.080
(Site Development Reviews) of the NBMC,
• Lot Merger — To merge the two (2) existing parcels into one development site,
• Addendum to Environmental Impact Report (SCH#2016021023) — To
address reasonably foreseeable environmental impacts resulting from the
legislative and project specific discretionary approvals, the City has determined
that an addendum to a previously certified Environmental Impact Report ("EIR")
is warranted pursuant to the California Environmental Quality Act ("CEQA");
WHEREAS, the Property is designated PI (Private Institutions) by the City of
Newport Beach General Plan ("General Plan") Land Use Element and is located within the
PC -19 (San Joaquin Plaza Planned Community) Zoning District;
WHEREAS, the Property is not located within the coastal zone; therefore, a coastal
development permit is not required;
WHEREAS, a Planning Commission study session was held on April 18, 2019, in
the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, to
introduce the Project to the Planning Commission. No action was taken at the study session;
WHEREAS, on July 18, 2019, the Airport Land Use Commission ("ALUC") found
the City of Newport Beach Vivante Senior Housing project to be consistent with the Airport
Environs Land Use Plan for John Wayne Airport;
Ordinance No. 2019-14
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WHEREAS, the Planning Commission held a public hearing on July 18, 2019 in the
Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. (the "Ralph M. Brown Act") and Chapters 15.45, 20.56 and
20.62 of the NBMC. Evidence, both written and oral, was presented to, and considered
by, the Planning Commission at this hearing;
WHEREAS, on July 18, 2019, the Planning Commission adopted Resolution No.
PC2019-021 by a unanimous vote of 5 ayes and 0 nays, recommending approval of the
Project, and the land use entitlements referenced above, to the City Council;
WHEREAS, the City Council held a public hearing on August 13, 2019, in the
Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time,
place and purpose of the public hearing was given in accordance with the Ralph M. Brown
Act and Chapters 15.45, 20.56 and 20.62 of the NBMC. Evidence, both written and oral,
was presented to, and considered by, the City Council at this public hearing;
WHEREAS, a development agreement is requested by the Applicant as the
proposed General Plan Amendment includes 50 or more dwelling units and adds dwelling
units within Statistical Area L1;
WHEREAS, the Project is consistent with the goals and policies of the General Plan.
The City Council concurs with the conclusion of the consistency analysis of the Project with
these goals and policies provided in the Vivante Senior Housing Project EIR Addendum
(SCH No. 2016021023);
WHEREAS, the Development Agreement includes all the required elements
pursuant to Section 15.45.040 (Contents) of the NBMC, including a 10 -year term and a
Development Plan, which is all of the land use entitlements, approvals and permits approved
by the City for the Project that establish permitted uses of the property, the density or
intensity of use, the maximum height and size of proposed buildings;
WHEREAS, in accordance with Section 15.45.060 (Findings) of the NBMC, the
Development Agreement requires development of the Property to be consistent with a
Development Plan and Development Regulations that are generally the rules, plans, and
policies that govern the development of the subject property in force at the time of execution
of the agreement. Consistent with Section 15.45.060 of the NBMC, Section 4.3
(Reservations of Authority) of the development agreement provides for the City's ability to
undertake subsequent actions and apply them to the development of the Property to the
extent they do not prevent development of the Property for the uses and to the density or
intensity of development set forth in the agreement;
Ordinance No. 2019-14
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WHEREAS, Section 3 of the Development Agreement includes the provision of
public benefits including a fee that is deemed necessary, appropriate and proper by the City
Council to further legitimate City interests including the provision of public services to the
Development and broader community. The public benefits identified by Section 3 are not
inconsistent with the provisions of state law relating to development agreements, nor
inconsistent with the ordinances, policies, plans or resolutions of the City of Newport Beach;
and
WHEREAS, the development agreement includes all the mandatory elements for
consideration and public benefits that are appropriate to support conveying the vested
development rights consistent with the General Plan, Chapter 15.45 of the NBMC, and
Government Code Sections 65864 et. seq.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council has considered the recommendation of the Planning
Commission and has determined that modifications to the Project made by the City
Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: The City Council of the City of Newport Beach hereby approves
Development Agreement No. DA2018-005, as set forth in Exhibit "A," which is attached
hereto and incorporated herein by reference.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the operative part of this ordinance.
Section 4: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases be declared invalid
or unconstitutional.
Ordinance No. 2019-14
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Section 5: The Museum House Project Final EIR (SCH No. 2016021023) was
prepared in compliance with the California Environmental Quality Act ("CEQA") as set
forth in California Code of Regulations, Title 14, Division 6, Chapter 3 ("CEQA
Guidelines") and City Council Policy K-3. By Resolution No. 2016-126, the City Council,
having final approval authority over the project, adopted and certified as complete and
adequate the Museum House Project Final Environmental Impact Report (SCH No.
2016021023) and adopted "Mitigation Monitoring and Reporting Program." Resolution
No. 2016-126 is hereby incorporated by reference.
Section 6: The Vivante Senior housing Environmental Impact Report Addendum
(EIR Addendum) (SCH No. 2016021023) was prepared for the Project in compliance with
the CEQA Guidelines and City Council Policy K-3. By Resolution No. 2019-74, the City
Council having final approval authority over the Project, adopted and certified as complete
and adequate the Vivante Senior Housing Project Final Environmental Impact Report
Addendum (SCH No. 2016021023) and adopted "Mitigation Monitoring and Reporting
Program." Resolution No. 2019-74 is hereby incorporated by reference.
Ordinance No. 2019-14
Page 6 of 6
Section 7: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 13th day of August 2019, and adopted on the 10th day of
September, 2019, by the following vote, to -wit:
AYES: Mayor Dixon, Mayor Pro Tem O'Neill, Council Member Avery Council
Member Brenner, Council Member Duffield Council Member Herdman
Council Member Muldoon
NAYS:
ABSENT:
DIANF'18. DIXON, MAYO
ATTEST -
t1 E
LE LANI I. BROWN, C TY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
_]Ac -
AA C. HARP, CITY ATTORNEY
Attachment(s): Exhibit A - Development Agreement
EXHIBIT "A"
DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
VIVANTE NEWPORT CENTER, LLC
concerning
VIVANTE SENIOR LIVING
850 AND 856 SAN CLEMENTE DRIVE
DEVELOPMENT AGREEMENT
(Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government
Code Sections 65864-65869.5)
This DEVELOPMENT AGREEMENT ("Agreement" or "Development Agreement") is
dated for reference purposes as of the _ day of , 2019 ("Agreement Date"), and is being
entered into by and between the CITY OF NEWPORT BEACH ("City") a California municipal
corporation and charter city, organized and existing under and by virtue of its Charter and the
Constitution, and the laws of the State of California, and VIVANTE NEWPORT CENTER,
LLC, a Delaware limited liability company ("Developer"). City and Developer are sometimes
collectively referred to in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Developer is fee simple owner of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as 850 and 856 San
Clemente Drive, Newport Beach, California (APN #442-261-05 and #442-261-17) ("Property)
and therefore is authorized to enter into this Agreement pursuant to Government Code Section
65865 and Newport Beach Municipal Code Chapter 15.45. The Property is more particularly
described in the legal description attached hereto as Exhibit A and is depicted on the site map
attached hereto as Exhibit B.
B. To encourage investment in, and commitment to, comprehensive planning and
public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects to avoid
waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code Sections 65864-65869.5 ("Development Agreement Statute") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" ("Development Agreement Ordinance"). This Agreement is
consistent with the Development Agreement Ordinance.
D. As detailed in Section 4 of this Agreement and the Development Plans (as defined
herein), and in consideration of the significant benefits outlined in this Agreement, Developer
has agreed to pay a total Public Benefit Fee (as defined herein) in the sum of Three Million One
Hundred Fifty Thousand Dollars and 00/100 ($3,150,000.00). Developer shall pay the Public
Benefit Fee to the City at the time of the City's issuance of the first building permit for the
Project (as defined herein).
E. This Agreement is consistent with the City of Newport Beach General Plan,
including, without limitation, the Property's proposed "MU -H3 (Mixed -Use Horizontal)"
General Plan designation that is being adopted and approved by the City Council concurrently
with its approval of this Agreement to establish appropriate standards to regulate land use and
development of the Property consistent with the General Plan.
G. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, the City's police power; (iv) is consistent and has been
approved consistent with the Project's Addendum to the Environmental Impact Report and final
Environmental Impact Report (SCH# 2016021023) ("EIR") that was certified by the City
Council on November 29, 2016, for the Museum House project, all of which analyze the
environmental effects of the proposed development of the Project on the Property, and all of the
findings, conditions of approval and mitigation measures related thereto; and (v) is consistent
and has been approved consistent with provisions of California Government Code Section 65867
and City of Newport Beach Municipal Code Chapter 15.45.
H. On July 18, 2019, City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recommended
to the City Council that the City Council approve this Agreement.
I. On August 13, 2019, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Developer, and members of the public. On September 10,
2019 consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted Ordinance No. 2019-13
("Adopting Ordinance"), finding this Agreement consistent with the City of Newport Beach
General Plan and approving and adopting this Agreement.
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. 2019-13 approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended
from time to time.
"Agreement Date" shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
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"CEQA" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Division 6,
Chapter 3, Section 15000 et seq. ), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California municipal corporation and
charter city, and any successor or assignee of the rights and obligations of the City of Newport
Beach hereunder.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man-made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Developer" shall mean Vivante Newport Center, LLC, a Delaware limited liability
company, and any successor or assignee to all or any portion of its right, title, and/or interest in
and to ownership of all or a portion of the Property and/or the Project.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections
65864-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
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charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date, as the same may be
amended from time to time consistent with this Agreement. Such land use entitlements,
approvals and permits include, without limitation, the following: (1) the Development rights as
provided under this Agreement; (2) General Plan Amendment No. GP2018-003 to amend
Anomaly No. 49 of Table LU2 and to change the land use category from PI (Private Institutions)
to MU -H3 (Mixed -Use Horizontal); (3) Planned Community Development Plan Amendment No.
PC2018-001 to modify the San Joaquin Plaza Planned Community Development Plan (PC -19) to
include development and design standards to allow for 90 senior dwelling units and 27 memory
care beds and an increase in the height limit from 65 feet to 69 feet with an additional 10 feet for
rooftop appurtenances; (4) Development Agreement No. DA 2018-005 to provide public benefits
should the Project be approved; (5) Conditional Use Permit No. UP2018-19 to allow the
operation of the proposed senior housing and memory care facility, alcohol service for dining
hall and lounge areas in the form of a Type 47 (On Sale General) and Type 57 (Special On Sale
General), and ensure land use compatibility; (6) Major Site Development Review No. SD2018-
003 to allow the construction of 90 senior dwelling units and a 27 bed memory care facility; (7)
Lot Merger No. LM2018-004 to merge the two existing parcels into one development site; (8)
Addendum to Environmental Impact Report No. ER2016-002 (SCH#2016021023); (9) the EIR
(State Clearinghouse No. 2016071062); and (10) all conditions of approval and all mitigation
measure approved for the Project on or before the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that affects the Development of the Property,
unless such amendment or modification is expressly authorized by this Agreement or is agreed to
by Developer in writing: the General Plan; the Development Plan; and, to the extent not
expressly superseded by the Development Plan or this Agreement (see Section 4.3 in particular),
all other land use and subdivision regulations governing the permitted uses, density and intensity
of use, design, and improvement, procedures for obtaining required City permits and approvals
for development, and similar matters that may apply to the Development of the Project on the
Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code
(buildings and construction), Title 19 of the Municipal Code (subdivisions and inclusionary
housing), and Title 20 of the Municipal Code (planning, zoning and density bonus), but
specifically excluding all other sections of the Municipal Code, including without limitation Title
5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the
term "Development Regulations," as used herein, does not include any City ordinance,
resolution, code, rule, regulation or official policy governing any of the following: (i) the
conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control
and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of
rights and interests which provide for the use of or the entry upon public property; or (v) the
exercise of the power of eminent domain.
"Effective Date" shall mean the latest of all of the following occurring: (i) the date that is
thirty (30) calendar days after the Agreement Date; (ii) if a referendum concerning the Adopting
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Ordinance, the Development Plan, or any of the Development Regulations approved on or before
the Agreement Date is timely qualified for the ballot and a referendum election is held
concerning the Adopting Ordinance or any of such Development Regulations, the date on which
the referendum is certified resulting in upholding and approving the Adopting Ordinance and the
Development Regulations; or (iii) if a lawsuit is timely filed challenging the validity or legality
of the Adopting Ordinance, this Agreement, the Development Plan, and/or any of the
Development Regulations approved on or before the Agreement Date, the date on which said
challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this
Agreement, the Development Plan, and/or the applicable Development Regulations, whether
such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal
(and the passage of any time required to appeal an involuntary dismissal), or binding written
settlement agreement. Promptly after the Effective Date occurs, the Parties agree to cooperate in
causing an appropriate instrument to be executed and recorded against the Property
memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et seg., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sec., as amended
("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety
Code Section 25100, et M.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006-76, and any amendments to the 2006 General Plan that
became effective before the Effective Date. The term "General Plan" shall exclude any
amendments that became effective after the Effective Date unless such amendment is expressly
authorized by this Agreement, or is specifically agreed to by Developer. The Land Use Plan of
the Land Use Element of the General Plan was approved by City voters in a general election on
November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
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substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Developer or both, as determined by the
context.
"Protect" shall mean all on-site and off-site improvements, as provided in this Agreement
and the Development Regulations, as the same may be modified or amended from time to time
consistent with this Agreement and applicable law.
"Property" is located at 850 and 856 San Clemente Drive in the City, as described in
Exhibit A and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Developer is required to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations
and this Agreement.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
ermination Date" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement is consistent with the General Plan and the San Joaquin Plaza Planned
Community District ("PC -19") as amended by the approvals in the Development Plan adopted
concurrently herewith (including but not limited to Planned Community Development Plan
Amendment No. PC2018-001).
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
no
2.3 Developer Representations and Warranties Regarding Ownership of the Property
and Related Matters Pertaining to this Agreement.
Developer and each person executing this Agreement on behalf of Developer hereby
represents and warrants to City as follows: (i) that Developer is the fee simple owner to the
Property; (ii) if Developer or any co-owner comprising Developer is a legal entity that such
entity is duly formed and existing and is authorized to do business in the State of California; (iii)
if Developer or any co-owner comprising Developer is a natural person that such natural person
has the legal right and capacity to execute this Agreement; (iv) that all actions required to be
taken by all persons and entities comprising Developer to enter into this Agreement have been
taken and that Developer has the legal authority to enter into this Agreement; (v) that
Developer's entering into and performing its obligations set forth in this Agreement will not
result in a violation of any obligation, contractual or otherwise, that Developer or any person or
entity comprising Developer has to any third party; and (vi) that neither Developer nor any co-
owner comprising Developer is currently the subject of any voluntary or involuntary bankruptcy
or insolvency petition; and (vii) that Developer has no actual knowledge of any pending or
threatened claims of any person or entity affecting the validity of any of the representations and
warranties set forth in clauses (i) -(vi), inclusive.
2.4 Term.
The term of this Agreement ("Term") shall commence on the Effective Date and shall
terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if any
Party reasonably determines that the Effective Date of this Agreement will not occur because, for
example, (i) the Adopting Ordinance or any of the Development Regulations approved on or
before the Agreement Date for the Project has/have been disapproved by City's voters at a
referendum election or (ii) a final non -appealable judgment is entered in a judicial action
challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the
Development Regulations for the Project approved on or before the Agreement Date such that
this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in
whole or in such a substantial part that the judgment substantially impairs such Party's rights or
substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole
and absolute discretion, shall have the right to terminate this Agreement upon delivery of a
written notice of termination to the other Party, in which event neither Party shall have any
further rights or obligations hereunder except that Developer's indemnity obligations set forth in
Article 10 shall remain in full force and effect and shall be enforceable, and the Development
Regulations applicable to the Project and the Property only (but not those general Development
Regulations applicable to other properties in the City) shall be repealed by the City after delivery
of said notice of termination except for the Development Regulations that have been disapproved
by City's voters at a referendum election and, therefore, never took effect.
The Termination Date shall be the earliest of the following dates: (i) the tenth (10th)
anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in
accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1
and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in
accordance with the terms of this Agreement, including Developer's complete satisfaction,
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performance, and payment, as applicable, of all Development Exactions, the issuance of all
required final occupancy permits, and acceptance by City or applicable public agency(ies) or
private entity(ies) of all required offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 14.11 (as well as any other Developer obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
3. Public Benefits.
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Developer shall pay to City a fee in the amount of three million one hundred fifty
thousand dollars and 00/100 ($3,150,000.00), which shall be in addition to any other fee or
charge to which the Property and the Project would otherwise be subject.
The Developer shall pay the Public Benefit Fee to the City sixty (60) days after the City's
issuance of the Project's first building permit. Should the Developer fail to pay the Public
Benefit Fee at the time of the City's issuance of the Project's first building permit, the Developer
shall be in default of the Agreement, as further described in Section 8 of this Agreement.
The City has not designated a specific project or purpose for the Public Benefit Fee.
Developer acknowledges by its approval and execution of this Agreement that it is voluntarily
agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an
essential term of this Agreement and is not severable from City's obligations and Developer's
vested rights to be acquired hereunder, and that Developer expressly waives any constitutional,
statutory, or common law right it might have in the absence of this Agreement to protest or
challenge the payment of the Public Benefit Fee on any ground whatsoever, including without
limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the Mitigation Fee Act (California Government
Code Section 66000 et seq. ), or otherwise. In addition to any other remedy set forth in this
Agreement for Developer's default, if Developer shall fail to timely pay any portion of the Public
Benefit Fee when due, City shall have the right to withhold issuance of any further building
permits, occupancy permits, or other development or building permits for the Project.
3. 1.1 Public Benefit Fee Allocation
The City Council retains sole and absolute discretion to determine how the Public
Benefit Fee shall be allocated and no final decisions have been made as of the Agreement Date.
3.2 Reserved
3.3 Reserved
4. Development of Project.
4.1 Applicable Regulations; Developer's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) Developer shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with
the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein
is intended to limit or restrict the City's discretion with respect to (i) those review and approval
requirements contained in the Development Regulations, (ii) the exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, or (iv) any environmental approvals that
may be required under CEQA or any other federal or state law or regulation in conjunction with
any Subsequent Development Approvals that may be required for the Project, and in this regard,
as to future actions in connection with the Subsequent Development Approvals, the City reserves
its full discretion to the same extent that it would have such discretion in the absence of this
Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to
vest Developer's rights with respect to any laws, regulations, rules, or official policies of any
other (i.e., non -City) governmental agency or public utility company with jurisdiction over the
Property or the Project; or any applicable federal or state laws, regulations, rules, or official
policies that may be inconsistent with this Agreement and that override or supersede the
provisions set forth in this Agreement, and regardless of whether such overriding or superseding
laws, regulations, rules, or official policies are adopted or applied to the Property or the Project
prior or subsequent to the Agreement Date.
Developer has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Developer represents, and City
acknowledges, that Developer would not make these expenditures without this Agreement, and
that Developer is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
Developer may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, without amending this Agreement,
provided that the request does not propose an increase in the maximum density, intensity, height,
or size of proposed structures, or a change in use that generates more peak hour traffic or more
daily traffic and, in addition, Developer may apply to City for approval of minor amendments to
the existing tentative tract map, if any, or associated conditions of approval, consistent with City
of Newport Beach Municipal Code Section 19.12.090. This Agreement does not constitute a
promise or commitment by City to approve any such permit or approval, or to approve the same
with or without any particular requirements or conditions, and City's discretion with respect to
such matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting Enactments.
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Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement or Developer consents in writing. This Section 4.2 shall not restrict City's ability to
enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to
California Government Code Section 65866 consistent with the procedures specified in Section
4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465,
the California Supreme Court held that a construction company was not exempt from a city's
growth control ordinance even though the city and construction company had entered into a
consent judgment (tantamount to a contract under California law) establishing the company's
vested rights to develop its property consistent with the zoning. The California Supreme Court
reached this result because the consent judgment failed to address the timing of development.
The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this
Agreement that Developer shall have the vested right to Develop the Project on and with respect
to the Property at the rate, timing, and sequencing that Developer deems appropriate within the
exercise of Developer's sole subjective business judgment, provided that such Development
occurs in accordance with this Agreement and the Development Regulations, notwithstanding
adoption by City's electorate of an initiative to the contrary after the Effective Date. No City
moratorium or other similar limitation relating to the rate, timing, or sequencing of the
Development of all or any part of the Project and whether enacted by initiative or another
method, affecting subdivision maps, building permits, occupancy certificates, or other
entitlement to use, shall apply to the Project to the extent such moratorium or other similar
limitation restricts Developer's vested rights in this Agreement or otherwise conflicts with the
express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Unless otherwise specified in this Agreement,
procedural regulations relating to hearing bodies, petitions, applications, notices, findings,
records, hearings, reports, recommendations, appeals, and any other matter of procedure shall
apply to the Property, provided that such procedural regulations are adopted and applied City-
wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge, and
Developer shall be required to pay, all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructed or installed by or on behalf of Developer, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
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4.3.2.1 Vested Development Impact Fees. All City development impact
fees shall be fixed at the rates in place on the Agreement Date as shown on attached Exhibit C.
Fees and charges levied by any other (i.e., non -City) governmental agency or public utility
company with jurisdiction over the Property or the Project shall not be fixed in place by the
Development Agreement.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Developer
has consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this
Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to the same extent and in the same amount(s) that would apply to
Developer and the Project in the absence of this Agreement; provided except where the extent
the timing, value, scope and/or extent of a particular Development Exaction for the Project has
been established and fixed by City in this Agreement, the Project's conditions of approval, or the
Development Regulations. City shall not alter, increase, or modify said Development Exaction in
a manner that is inconsistent with this Agreement, the Project's conditions of approval, or the
Development Regulations without Developer's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 below). In
addition, nothing in this Agreement is intended or shall be deemed to vest Developer against the
obligation to pay any of the following (which are not included within the definition of
"Development Exactions") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit, inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications,
including CEQA review; (ii) fees and charges levied by any other public agency, utility, district,
or joint powers authority, regardless of whether City collects those fees and charges; or (iii)
community facility district special taxes or special district assessments or similar assessments,
business license fees, bonds or other security required for public improvements, transient
occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service
connection fees, new water meter fees, and the Property Development Tax payable under Section
3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Developer's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies that are necessary to enable City to comply with the provisions of any such overriding
federal or state laws and regulations, provided that (i) Developer does not waive its right to
challenge or contest the validity of any such purportedly overriding federal, state, or City law or
regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that prevents or precludes compliance with any provision of this Agreement, City or
Developer shall provide to the other Party a written notice identifying the federal, state, or City
law or regulation, together with a copy of the law or regulation and a brief written statement of
the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly
thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to
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determine whether a modification or suspension of this Agreement, in whole or in part, is
necessary to comply with such overriding federal, state, or City law or regulation. In such
negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of
Developer as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Developer at no cost to City or Developer in resolving the
conflict in a manner which minimizes any financial impact of the conflict upon Developer. City
also agrees to process in a prompt manner Developer's proposed changes to the Project and any
of the Development Regulations as may be necessary to comply with such overriding federal,
state, or City law or regulation; provided, however, that the approval of such changes by City
shall be subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Developer's vested
rights under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building-
related standards set forth in the uniform codes adopted and amended by City from time-to-time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Developer constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or
the Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility
services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Newport Beach as and when service connections are provided and service commences).
5. Amendment or Cancellation of Agreement
This Agreement may be amended or canceled in whole or in part only by mutual written
and executed consent of the Parties in compliance with California Government Code Section
65868 and Newport Beach Municipal Code Section 15.45.070 or by unilateral termination by
City in the event of an uncured default of Developer.
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6. Enforcement.
Unless amended or canceled pursuant to California Government Code Section 65868,
Newport Beach Municipal Code Section 15.45.070, or modified or suspended pursuant to
Newport Beach Municipal Code Chapter 15.45 or California Government Code Section 65869.5,
and except as otherwise provided in subdivision (b) of Section 65865.3, this Agreement shall be
enforceable by any Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
7. Annual Review of Developer's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code section 65865.1. Developer (including any successor to the owner executing this
Agreement on or before the date of the Adopting Ordinance) shall pay City a reasonable fee in
an amount City may reasonably establish from time -to -time to cover the actual and necessary
costs for the annual review. City's failure to timely provide or conduct an annual review shall
not constitute a Default hereunder by City.
7.2 Developer Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Developer is required to demonstrate good faith
compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30)
calendar days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on
the basis of substantial evidence, whether or not Developer has, for the period under review,
complied with the terms of this Agreement. If the Zoning Administrator finds that Developer
has so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the
basis of substantial evidence, that Developer has not so complied, written notice shall be sent to
Developer by first class mail of the Zoning Administrator's finding of non-compliance, and
Developer shall be given at least ten (10) calendar days to cure any noncompliance that relates to
the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If
a cure not relating to the payment of money cannot be completed within thirty (30) calendar days
for reasons which are beyond the control of Developer, Developer must commence the cure
within such thirty (30) calendar days and diligently pursue such cure to completion. If
Developer fails to cure such noncompliance within the time(s) set forth above, such failure shall
be considered to be a Default and City shall be entitled to exercise the remedies set forth in
Article 8 below.
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7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of
Developer's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Developer or limit City's rights or remedies for any such
Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of
Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged
Default and a reasonable manner and sufficient period of time (twenty (20) calendar days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) calendar days in the event of non -monetary Defaults) in which the Default must be
cured ("Cure Period"). During the Cure Period, the Party charged shall not be considered in
Default for the purposes of termination of this Agreement or institution of legal proceedings. If
the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed
not to exist. If a non -monetary Default cannot be cured during the Cure Period with the exercise
of commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) calendar days after it receives the
Notice of Default, and thereafter diligently pursue said cure to completion. Notwithstanding the
foregoing, the City is not required to give Developer notice of default and may immediately
pursue remedies for a Developer Default that result in an immediate threat to public health,
safety or welfare.
8.2 Default by Developer.
If Developer is alleged to have committed Default and it disputes the claimed Default, it
may make a written request for an appeal hearing before the City Council within ten (10)
calendar days of receiving the Notice of Default, and a public hearing shall be scheduled at the
next available City Council meeting to consider Developer's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) calendar day period
shall waive any right to a hearing on the claimed Default. If Developer's appeal of the Notice of
Default is timely and in good faith but after a public hearing of Developer's appeal the City
Council concludes that Developer is in Default as alleged in the Notice of Default, the accrual
date for commencement of the thirty (30) calendar day Cure Period provided in Section 8.1 shall
be extended until the City Council's denial of Developer's appeal is communicated to Developer
in writing.
8.3 City's ption to Terminate Agreement.
In the event of an alleged Developer Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Developer with the opportunity
to cure the Default within the Cure Period, as provided in Section 8. 1, and complying with
Section 8.2 if Developer timely appeals any Notice of Default. A termination of this Agreement
by City shall be valid only if good cause exists and is supported by evidence presented to the
14
City Council at or in connection with a duly noticed public hearing to establish the existence of a
Default. The validity of any termination may be judicially challenged by Developer. Any such
judicial challenge must be brought within ninety (90) calendar days of service on Developer, by
first class mail, postage prepaid, of written notice of termination by City or a written notice of
City's determination of an appeal of the Notice of Default as provided in Section 8.2.
8.4 Default by City.
If Developer alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Developer may pursue any legal or equitable remedy available to it,
including, without limitation, an action for a writ of mandamus, injunctive relief, or specific
performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in Developer's performance hereunder shall neither be a Developer Default nor
constitute grounds for termination or cancellation of this Agreement by City and shall, at
Developer's option (and provided Developer delivers written notice to City within thirty (30)
calendar days of the commencement of the alleged City Default), extend the Term for a period
equal to the length of the delay.
8.5 Waiver.
Failure or delay by any Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre-existing condition once implementation of this Agreement has
begun. After such implementation, both Developer and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Developer and City have invested significant time
and resources and performed extensive planning and processing of the Project in agreeing to the
terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement. It is not possible to
determine the sum of money which would adequately compensate Developer or City for such
efforts. For the above reasons, except as set forth in Section 8.7, City and Developer agree that
damages would not be an adequate remedy if either City or Developer fails to carry out its
obligations under this Agreement. Therefore, except as set forth in Section 8.7, specific
performance of this Agreement is necessary to compensate Developer if City fails to carry out its
obligations under this Agreement or to compensate City if Developer falls to carry out its
obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for any Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from Developer as set forth herein; and (ii) nothing in this Section 8.7 is intended or
shall be interpreted to limit or restrict Developer's indemnity obligations set forth in Article 10
or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
15
Section 8. 10. In no event shall damages be awarded against the City upon an event of default or
upon termination of this Agreement. Developer expressly agrees that the City, any City agencies
and their respective elected and appointed councils, boards, commissions, officers, agents,
employees, volunteers and representatives (collectively, for purposes of this Section 8.7, "City")
shall not be liable for any monetary damage for a Default by the City or any claims against City
arising out of this Agreement. Developer hereby expressly waives any such monetary damages
against the City. The sole and exclusive judicial remedy for Developer in the event of a Default
by the City shall be an action in mandamus, specific performance, or other injunctive or
declaratory relief.
8.8 Additional City Remedy for Developer's Default.
In the event of any Default by Developer, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to Developer's
Default without recourse from Developer or its successors or assigns.
8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
8.10 No Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action') between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall not recover any of its costs and expenses, regardless of whether they
would be recoverable under California Code of Civil Procedure section 1033.5 or California
Civil Code section 1717 in the absence of this Agreement. These costs and expenses include, but
are not limited to, court costs, expert witness fees, attorneys' fees, City staff costs (including
overhead), and costs of investigation and preparation before initiation of the Action.
9. Force Majeure.
No Party shall be deemed to be in Default where failure or delay in performance of any
of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fres, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Developer's obligation to pay Public Benefit
Fees, be extended pursuant to this Section.
10. Indemnity Obligations of Developer.
10.1 Indemnity Arising From Acts or Omissions of Developer.
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Except to the extent caused by the intentional misconduct or gross negligent acts, errors
or omissions of City or one (1) or more of City's officials, employees, agents, attorneys, and
contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and
hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities,
losses, damages, penalties, obligations, and expenses (including but not limited to reasonable
attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the
acts, omissions, or operations of Developer or Developer's agents, contractors, subcontractors,
agents, or employees in the course of Development of the Project or any other activities of
Developer relating to the Property or Project, or pursuant to this Agreement. City shall be
entitled to retain separate counsel to represent City against the Claim and the City's reasonable
defense costs for its separate counsel shall be included in Developer's indemnity obligation,
provided that such counsel shall reasonably cooperate with Developer in an effort to minimize
the total litigation expenses incurred by Developer. In the event either City or Developer
recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party
or parties asserting the Claim, Developer shall be entitled to retain the same (provided it has fully
performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.1
shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and
shall survive the Termination Date.
10.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 10.1, Developer shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, any of the Development Plan approvals for
the Project (including without limitation any actions taken pursuant to CEQA with respect
thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant
to this Agreement. Said indemnity obligation shall include payment of reasonable attorney's
fees, expert witness fees, City staff costs (including overhead), and court costs. City shall
promptly notify Developer of any such Claim and City shall cooperate with Developer in the
defense of such Claim. Developer shall not be responsible to indemnify, defend, and hold City
harmless from such Claim until Developer is so notified and if City fails to cooperate in the
defense of a Claim Developer shall not be responsible to defend, indemnify, and hold harmless
City during the period that City so fails to cooperate or for any losses attributable thereto. City
shall be entitled to retain separate counsel to represent City against the Claim and the City's
reasonable defense costs for its separate counsel shall be included in Developer's indemnity
obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to
minimize the total litigation expenses incurred by Developer. In the event either City or
Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts
from the party or parties asserting the Claim, Developer shall be entitled to retain the same
(provided it has fully performed its indemnity obligations hereunder). No settlement of any
Claim against City or City's Affiliated Parties shall be executed without the written consent of
both the City and Developer. The indemnity provisions in this Section 10.2 shall commence on
the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the
Termination Date.
10.3 Environmental Indemnity.
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In addition to its indemnity obligations set forth in Section 10.1, from and after the
Effective Date Developer shall indemnify, defend, and hold harmless City and City's Affiliated
Parties from and against any and all Claims for personal injury or death, property damage,
economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever,
including without limitation reasonable attorney's fees, expert witness fees, and costs, based
upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous
Substance on or under any of the Property in violation of any applicable Environmental Law; (ii)
the actual or alleged migration of any Hazardous Substance from the Property through the soils
or groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by Developer in connection with Developer's Development of
the Project. The indemnity provisions in this Section 10.3 shall commence on the Effective Date
occurs, and shall survive the Termination Date.
11. Assignment.
Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer") Developer's interest in or fee title to the Property, in whole or in part, to a "Permitted
Transferee" (which successor, as of the effective date of the Transfer, shall become the
"Developer" under this Agreement) at any time from the Agreement Date until the Termination
Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision
Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and
any such transfer shall include the assignment and assumption of Developer's rights, duties, and
obligations set forth in or arising under this Agreement as to the Property or the portion thereof
so Transferred and shall be made in strict compliance with the following conditions precedent:
(i) no transfer or assignment of any of Developer's rights or interest under this Agreement shall
be made unless made together with the Transfer of all or a part of Developer's interest in the
Property; and (ii) prior to the effective date of any proposed Transfer, Developer (as transferor)
shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment
and assumption, executed in recordable form by the transferring and successor Developer and in
a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to
which the transferring Developer assigns to the successor Developer and the successor
Developer assumes from the transferring Developer all of the rights and obligations of the
transferring Developer with respect to the Property and this Agreement, or interest in the
Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the
obligation to perform such obligations that must be performed outside of the Property so
Transferred that are a condition precedent to the successor Developer's right to develop the
portion of the Property so Transferred. Any Permitted Transferee shall have all of the same
rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with
respect to the portion of, or interest in, the Property sold, transferred, and assigned to such
Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the
Property, or interest in the Property, no such Permitted Transferee shall have the right to enter
into an amendment of this Agreement that jeopardizes or impairs the rights or increases the
obligations of the Developer with respect to the balance of the Property, without Developer's
written consent.
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and
severally liable to City, together with the successor Developer, to perform all of the transferred
18
obligations set forth in or arising under this Agreement unless there is full satisfaction of all of
the following conditions, in which event the transferring Developer shall be automatically
released from any and all obligations with respect to the portion of the Property so Transferred:
(i) the transferring Developer no longer has a legal or equitable interest in the portion of the
Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
Developer is not then in Default under this Agreement and no condition exists that with the
passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring Developer has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor Developer either (A) provides City with substitute security
equivalent to any security previously provided by the transferring Developer to City to secure
performance of the successor Developer's obligations hereunder with respect to the Property, or
interest in the Property, or the portion of the Property so Transferred, as determined in the City's
sole discretion, or (B) if the transferred obligation in question is not a secured obligation, the
successor Developer either provides security reasonably satisfactory to City or otherwise
demonstrates to City's reasonable satisfaction, as determined in the City's sole discretion, that
the successor Developer has the financial resources or commitments available to perform the
transferred obligation at the time and in the manner required under this Agreement and the
Development Regulations for the Project. Any determination by the City in regards to the second
paragraph of Section 11, subpart (iv) (A), (B), shall be documented in writing.
12. Mortga eg e Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Developer in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Developer or
other affirmative covenants of Developer, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
19
performed by Developer is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty (30) calendar days after receiving a Notice of Default with respect to a monetary
Default and within sixty (60) calendar days after receiving a Notice of Default with respect to a
non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by
obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain
possession with diligence and continuity through a receiver or otherwise, and to remedy or cure
the non -monetary Default within sixty (60) calendar days after obtaining possession and, except
in case of emergency or to protect the public health or safety, City may not exercise any of its
judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the
Mortgagee until expiration of the sixty (60) calendar day period. In the case of a non -monetary
Default that cannot with diligence be remedied or cured within sixty (60) calendar days, the
Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default,
provided the Mortgagee promptly commences to cure the non -monetary Default within sixty (60)
calendar days and diligently prosecutes the cure to completion.
13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy.
14. Miscellaneous Terms.
14.1 Reserved
14.2 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
20
TO DEVELOPER: Robert Eres
Vivante Newport Center, LLC
1 MacArthur Place, Suite 300
Santa Ana, CA 92707
With a copy to: Sean Matsler, Esq.
Cox, Castle & Nicholson LLP
3121 Michelson Drive, Ste. 200
Irvine, CA 92612
Any Party may change the address stated in this Section 14.2 by delivering notice to the
other Parties in the manner provided in this Section 14.2, and thereafter notices to such Party or
Parties shall be addressed and submitted to the new address. Notices delivered in accordance
with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received, or
(ii) three business days after deposit in the mail as provided above.
14.3 Project as Private Undertaking.
The Development of the Project is a private undertaking. Neither the Developer nor the
City is acting as the agent of the other in any respect, and each is an independent contracting
entity with respect to the terms, covenants, and conditions set forth in this Agreement. This
Agreement forms no partnership, joint venture, or other association of any kind. The only
relationship between the Parties is that of a government entity regulating the Development of
private property by the owner of the property.
14.4 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
14.5 Estoppel Certificates.
At any time, any Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) calendar days following receipt.
21
14.6 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
14.7 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
14.8 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
14.9 Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one (1) and the same agreement.
14.10 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
14.11 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that no Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of
the benefits of this Agreement if any of Developer's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Developer shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Developer's obligations under this Agreement. The provisions
of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
14.12 Construction.
22
This Agreement has been drafted after extensive negotiation and revision. Both City and
Developer are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Developer had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Developer each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against any Party.
14.13 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. Except for those
provisions relating to indemnity in Section 10, all other provisions of this Agreement shall, from
and after the Effective Date hereof, be enforceable as equitable servitudes and constitute
covenants running with the land. Subject to occurrence of the Effective Date, each covenant to
do or refrain from doing some act hereunder with regard to Development of the Property: (i) is
for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property
and each portion thereof, and (iii) is binding upon each Party and each successor in interest
during its ownership of the Property or any portion thereof. Every person or entity who now or
later owns or acquires any right, title, or interest in any part of the Project or the Property is and
shall be conclusively deemed to have consented and agreed to every provision of this
Agreement. This Section 14.13 applies regardless of whether the instrument by which such
person or entity acquires the interest refers to or acknowledges this Agreement and regardless of
whether such person or entity has expressly entered into an assignment and assumption
agreement as provided for in Section 11.
14.14 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Developer. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
14.15 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the laws of the State of
California, without regard to conflicts of law principles. Any action at law or in equity arising
under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
14.16 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
14.17 Incorporation of Recitals and Exhibits.
23
All of the Recitals are incorporated into this Agreement by this reference.
14.18 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[SIGNATURE PAGE FOLLOWS]
24
SIGNATURE PAGE TO DEVELOPMENT AGREEMENT
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
Sean Matsler, Attorney for Developer
"DEVELOPER"
VWANTE NEWPORT CENTER, LLC, a
Delaware limited liability company
By: _
Name:
Title:
By: _
Name:
Title:
"CITY"
25
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
Diane B. Dixon, Mayor
ACKNOWLEDGEMENTS
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , before me,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , before me,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
-26-
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PARCEL A:
PARCEL 2, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS
SHOWN ON A MAP FILED IN BOOK 81, PAGES 8 AND 9 OF PARCEL MAPS, IN THE
OFFICE OF
THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, GAS, MINERALS, MINERAL
RIGHTS, NATURAL
GAS RIGHTS, AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID
LAND, AND THE
RIGHT TO GRANT AND TRANSFER THE SAME, TOGETHER WITH ALL NECESSARY
AND
CONVENIENT RIGHTS TO EXPLORE FOR, DEVELOP, PRODUCE AND EXTRACT AND
TAKE THE
SAME, SUBJECT TO THE EXPRESS LIMITATION THAT ANY AND ALL OPERATIONS
FOR THE
EXPLORATION, DEVELOPMENT, PRODUCTION, EXTRACTION AND TAKING OF
ANY OF SAID
SUBSTANCES SHALL BE CARRIED ON AT LEVELS BELOW THE DEPTH OF FIVE
HUNDRED (500)
FEET FROM THE SURFACE OF SAID LAND BY MEANS OF WELLS, DERRICK
AND/OR OTHER
EQUIPMENT FROM SURFACE LOCATIONS ON ADJOINING OR NEIGHBORING LAND,
AND
SUBJECT FURTHER TO THE EXPRESS LIMITATION THAT THE FOREGOING
RESERVATION SHALL
IN NO WAY BE INTERPRETED TO INCLUDE ANY RIGHT OF ENTRY IN AND UPON
THE SURFACE
OF SAID LAND, AS RESERVED BY THE IRVINE COMPANY, A CORPORATION
ORGANIZED UNDER
THE LAWS OF THE STATE OF WEST VIRGINIA IN A DEED RECORDED FEBRUARY
28, 1977 AS
INSTRUMENT NO. 35908 IN BOOK 12085, PAGE 1561 OF OFFICIAL RECORDS.
APN: 442-261-05
PARCEL 2 AS SHOWN ON EXHIBIT'B' OF NEWPORT BEACH LOT LINE
ADJUSTMENT NO. 95-3
RECORDED OCTOBER 31, 1995 AS INSTRUMENT NO. 19950483821 OF OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE,
STATE OF CALIFORNIA.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS
RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM,
AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE
WITHIN OR
UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING,
MINING,
EXPLORING AND OPERATING THEREFOR, AND STORING IN AND REMOVING THE
SAME FROM
SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY
DRILL AND MINE FROM LANDS OTHER THAN THE LAND, OIL OR GAS WELLS,
TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO
BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS
UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL,
RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES,
WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE
THROUGH THE
SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS
RESERVED BY THE
IRVINE COMPANY, A MICHIGAN CORPORATION IN A DEED RECORDED
NOVEMBER 22, 1995 AS
INSTRUMENT NO. 19950519960 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, WATER RIGHTS OR
INTERESTS THEREIN
APPURTENANT OR RELATING TO THE LAND OR OWNED OR USED BY THE IRVINE
COMPANY IN
CONNECTION WITH OR WITH RESPECT TO THE LAND (NO MATTER HOW
ACQUIRED BY THE
IRVINE COMPANY), WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN,
OVERLYING,
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR
CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL,
REDRILL,
REMOVE AND STORE THE SAME FROM OR IN THE LAND OR TO DIVERT OR
OTHERWISE
UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED
BY THE IRVINE COMPANY; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER
UPON THE
SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED BY
THE IRVINE
COMPANY, A MICHIGAN CORPORATION IN A DEED RECORDED NOVEMBER 22,
1995 AS
INSTRUMENT NO. 19950519960 OF OFFICIAL RECORDS.
APN: 442-261-17
PARCEL B 1:
AN APPURTENANT NON-EXCLUSIVE JOINT ACCESS EASEMENT FOR ACCESS,
INGRESS AND
EGRESS OVER THAT PORTION OF PARCEL 1 AS SHOWN ON EXHIBIT "B" OF
NEWPORT BEACH
LOT LINE ADJUSTMENT NO. 95-3 RECORDED OCTOBER 31, 1995 AS INSTRUMENT
NO.
19950483821 OF OFFICIAL RECORDS, AS MORE FULLY DESCRIBED IN THE
DECLARATION OF
EASEMENTS RECORDED OCTOBER 31, 1995 AS INSTRUMENT NO. 19950484848 OF
OFFICIAL
RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY SOUTHEASTERLY CORNER OF SAID
PARCEL 1; THENCE
NORTHERLY ALONG THE EASTERLY PARCEL LINE OF SAID PARCEL 1 NORTH 07°
03' 01 " WEST
55.00 FEET; THENCE SOUTH 82° 56'59" WEST 65.00 FEET; THENCE SOUTH 07° 03' 01"
EAST
55.00 FEET TO A POINT ON THE MOST SOUTHERLY LINE OF SAID PARCEL 1, SAID
POINT
BEING ALSO ON THE MOST NORTHERLY RIGHT OF WAY LINE OF SAN CLEMENTE
DRIVE;
THENCE EASTERLY ALONG SAID SOUTHERLY LINE AND SAID RIGHT OF WAY
LINE NORTH 820
56'59" EAST 65.00 FEET TO THE POINT OF BEGINNING.
EXHIBIT B
SITE MAP
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EXHIBIT C
VESTED DEVELOPMENT IMPACT FEES
Impact Fee Estimate:
■ Fair Share Fees
$895 per dwelling unit (elderly residential) x 90 DU
=$80,550
Credit applied for existing nonresidential floor area
■ San Joaquin Transportation Corridor Fees -Zone B
$2,595/DU x 0.5 x 99DU = $128,452.50 (in accordance with interpretation 87-
1, fees for congregate care are charged at the multi -family rate times one half
of the total number of dwelling units)
No credit applied for existing floor area since property is currently tax exempt
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance
No. 2019-14 was duly introduced on the 13'h day of August, 2019, at a regular meeting, and adopted by
the City Council at a regular meeting duly held on the 10th day of September, 2019, and that the same was
so passed and adopted by the following vote, to wit:
AYES: Mayor Diane Dixon, Mayor Pro Tem Will O'Neill, Council Member Brad Avery, Council
Member Joy Brenner, Council Member Duffy Duffield, Council Member Jeff Herdman,
Council Member Kevin Muldoon
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 111h day of September, 2019.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
W I f N
., ill , , 'm r1op,
Leild'hi I. Brown, MMCL
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
ss.
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2019-14 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 newspaper of general circulation
on the following dates:
2019.
Introduced Ordinance: August 17, 2019
Adopted Ordinance: September 14, 2019
In witness whereof, I have hereunto subscribed my name this Nt day of G
L
Leilani I. Brown, MMC
City Clerk
City of Newport Beach, California