HomeMy WebLinkAbout2023-19 - Approving a Development Agreement for the Tennis Club and Pickleball Club at Newport Beach Located at 1602 East Coast Highway (PA2021-260)ORDINANCE NO. 2023-19
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT FOR THE TENNIS AND
PICKLEBALL CLUB AT NEWPORT BEACH LOCATED AT
1602 EAST COAST HIGHWAY (PA2021-260)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules, and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in
the Charter and the State Constitution, and the power to exercise, or act pursuant to
any and all rights, powers and privileges, or procedures granted or prescribed by any
law of the State of California;
WHEREAS, on March 27, 2012, the City Council approved an application by Golf
Realty Fund, Managing Owner ("Applicant") for the reconstruction of the 3,725-square-foot
tennis clubhouse, reduction of tennis courts from 24 to seven courts, construction of a 27-
room boutique hotel with 9,700 square feet of ancillary uses and five single -unit residential
units, and a development agreement for the property ("2012 Entitlements") located at 1602
East Coast Highway, and legally described as Parcels A, B, C, and D of Parcel Map No.
2016-151 (commonly referred as the "Tennis Club Site" or "Property");
WHEREAS, Development Agreement No. DA2008-001 ("2012 Agreement")
adopted pursuant to Ordinance No. 2012-3 was executed and recorded, as document
number 2014000036369;
WHEREAS, on November 20, 2018, the Zoning Administrator approved Coastal
Development Permit No. CD2017-039, authorizing the redevelopment of the Property
consistent with the 2012 Entitlements (2012 Entitlements and Coastal Development Permit
No. CD2017-039 are collectively referred to as the "Approved Project"),
WHEREAS, on November 2, 2021, the Applicant submitted an application to
amend the Approved Project to include one additional tennis court for a total of eight
courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses,
and three attached condominium units and two detached single -unit residences in -lieu of
five detached single -unit residences ("2021 Project Application");
WHEREAS, on June 28, 2022, the City Council approved a one year extension
of Development Agreement No. DA2008-001 which expired on September 23, 2023;
Ordinance No. 2023-19
Page 2 of 8
WHEREAS, on September 8, 2022, the Planning Commission held a public
hearing and recommended approval of the 2021 Project Application to the City Council;
WHEREAS, on September 27, 2022, the City Council held a public on the 2021
Project Application but remanded it to the Planning Commission for further
consideration of the pickleball use;
WHEREAS, on October 11, 2022, the City Council adopted a motion to
reconsider the 2021 Project Application;
WHEREAS, on October 25, 2022, the City Council reconsidered the 2021
Project Application but continued the item to a future meeting after the Planning
Commission considered an amendment to the project that includes pickleball courts;
WHEREAS, the Property currently has 31 pickleball courts and 16 tennis courts,
which will remain as an interim use until the Project (defined below) is fully
implemented;
WHEREAS, on December 6, 2022, the Applicant submitted a revised application
to the Approved Project to decrease the number of future tennis courts from seven to
four tennis courts, add 14 pickleball courts, increase the number of future hotel rooms
from 27 to 41 rooms, increase the gross floor area of ancillary hotel uses by 4,686
square feet, for a total of 14,386 square feet, provide three attached condominium units
and two single -unit residences in -lieu of five single -unit residences, and approve a
development agreement for a term of 10 years ("Project");
WHEREAS, the following land use approvals are requested or required for the
Project:
• General Plan Amendment ("GPA") — An amendment to Anomaly No. 46 of
Table LU2 of the 2006 Newport Beach General Plan Land Use Element to
document the conversion of 17 tennis courts to 27 hotel rooms and
assignment of five residential units authorized by City Council Resolution No.
2012-10, the addition of 14 hotel rooms for a total of 41 rooms, the reduction
from seven tennis courts to four tennis courts, and the addition of 14 pickleball
courts;
Ordinance No. 2023-19
Page 3 of 8
• Local Coastal Program Implementation Plan Amendment ("LCPA") — An
amendment to Newport Beach Country Club (PC-47) Planned Community
Coastal Zoning District Development Standards set forth in Section
21.26.055(S)(2) of the Newport Beach Municipal Code ("NBMC") to modify the
permitted uses and development standards allowed on the Property;
• Planned Community Development Plan Amendment ("PCDP Amendment") —
An amendment to Planned Community Development Plan No. 47 (Newport
Beach Country Club Planned Community) to amend land use regulations and
development standards on the Property;
• Development Agreement ("DA") — A new development agreement between the
Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and
Construction, Development Agreements Required, Development Agreement
Required) and 15.45.070 (Buildings and Constructions, Development
Agreements, Amend ment/CanceIlation) of the NBMC, which would provide
vested right to develop the Project for a term of 10 years and provides
negotiated public benefits to the City; and
• Addendum to previously adopted Mitigated Negative Declaration No. ND-2010-
008 (SCH2010091052) ("Addendum") — Pursuant to the California
Environmental Quality Act ("CEQA"), the Addendum addresses reasonably
foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is designated Mixed -Use Horizontal 3/Parks and
Recreation (MU-H3/PR) by the City of Newport Beach General Plan and is located
within the Newport Beach Country Club Planned Community (PC-47) Zoning District;
WHEREAS, the Property is designated Mixed -Use Horizontal/Parks and
Recreation (MU-H/PR) by the Coastal Land Use Plan and is located within the Newport
Beach Country Club Planned Community (PC-47) Coastal Zoning District;
Ordinance No. 2023-19
Page 4 of 8
WHEREAS, the Planning Commission held a public hearing on March 23, 2023,
in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach,
California, at which time the Planning Commission considered the Project. A notice of
time, place and purpose of the hearing was given in accordance with California
Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapters 15.45
(Development Agreements), 20.56 (Planning Community District Procedures), 20.62
(Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and
oral, was presented to, and considered by, the Planning Commission at this hearing;
WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2023-014 (5 ayes, 1 absent, 1 recusal) recommending approval of the Project to the
City Council; and
WHEREAS, the City Council held a public hearing on November 14, 2023, in the
City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A
notice of time, place and purpose of the hearing was given in accordance with the Ralph
M. Brown Act, and Chapters 15.45 (Development Agreements), 20.56 (Planning
Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of
the NBMC. Evidence, both written and oral, was presented to, and considered by, the
City Council at this hearing.
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 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.
Ordinance No. 2023-19
Page 5 of 8
Section 2: The City Council finds the DA is consistent with provisions of
California Government Code Sections 65864 to 65869.5 and Chapter 15.45
(Development Agreements) of the NBMC that authorize binding agreements that: (i)
encourage investment in, and commitment to, comprehensive planning and public
facilities financing; (ii) strengthen the public planning process and encourage private
implementation of the local general plan; (iii) provide certainty in the approval of projects
to avoid waste of time and resources; and (iv) reduce the economic costs of
development by providing assurance to the property owners that they may proceed with
projects consistent with existing policies, rules, and regulations. The City Council finds
the DA is consistent with Land Use Element of the General Plan which designates the
Tennis and Pickleball Club site as Mixed Use Horizontal 3/Park and Recreation (MU-
H3/PR). The MU-H3/PR designation on the Tennis and Pickleball Club site provides for
the horizontal intermixing of regional commercial office, hotel, single -unit and multi -unit
residential and ancillary commercial uses. The PR designation allows active public or
private recreational uses including parks (both active and passive), golf courses, marina
support facilities, aquatic facilities, tennis clubs and courts, private recreation, and
similar facilities. The Project necessitates an amendment to the General Plan due to the
increased number of hotel rooms and tennis courts. However, there are no proposed
changes to the land uses permitted per the General Plan land use designation and the
Project is consistent with all applicable General Plan Land Use policies.
Additionally, the City Council finds the DA is entered into pursuant to, and
constitutes a present exercise of, the City's police power and is in the best interest of
the health, safety, and general welfare of the City, residents, and the public.
The City Council finds that judicial challenges to the City's CEQA determinations
and approvals of land use projects are costly and time consuming. In addition, project
opponents often seek an award of attorneys' fees in such challenges. As project
applicants are the primary beneficiaries of such approvals, it is appropriate that such
applicants should bear the expense of defending against any such judicial challenge,
and bear the responsibility for any costs, attorneys' fees, and damages which may be
awarded to a successful challenger.
Section 3: The Development Agreement which is attached hereto as Exhibit
"A," and incorporated herein by reference between the City of Newport Beach and the
Applicant is hereby approved.
Ordinance No. 2023-19
Page 6 of 8
Section 4: The City Council finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages which
may be awarded to a successful challenger. In addition to the obligation to The
Applicant shall indemnify, defend, and hold the City of Newport Beach harmless against
any judicial challenges to the City's approval of the Development Agreement provided
herein that take place prior to its Effective Date.
Section 5: An Addendum to Mitigated Negative Declaration No. ND2010-008
(MND) was prepared for the Project in compliance with the California Environmental
Quality Act ("CEQA") set forth in California Public Resources Code Section 2100 et
seq.; CEQA's implementing regulations set forth in CCR Title 14, Division 6, Chapter 3
("CEQA Guidelines") and City Council Policy K-3 (Implementation Procedures for the
California Environmental Quality Act) to ensure that the Project will not result in new or
increased environmental impacts. On the basis of the MND and entire environmental
review record, the reduction of three tennis courts and addition of 14 pickleball courts,
14 hotel rooms, and 4,686 square feet of ancillary hotel uses, and conversion of three
single -unit residences to condominium units will not result in any new significant impacts
that were not previously analyzed in the MND. The Addendum confirms and provides
substantial evidence that the potential impacts associated with this Project would either
be the same or less than those described in the MND, or as mitigated by applicable
mitigation measures in the MND. In addition, there are no substantial changes to the
circumstances under which the Project would be undertaken that would result in new or
more severe environmental impacts than previously addressed in either the MND, nor
has any new information regarding the potential for new or more severe significant
environmental impacts been identified. Therefore, in accordance with Section 15164 of
the CEQA Guidelines, the City Council adopted Resolution No. 2023- , thereby
adopting an addendum to the previously adopted MND. Resolution 2023- , including
all findings contained therein, is hereby incorporated by reference.
Section 6: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Ordinance No. 2023-19
Page 7 of 8
Section 7: 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. 2023-19
Page 8of8
Section 8: 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 14th day of November, 2023, and adopted on the 28th day
of November, 2023, by the following vote, to -wit:
AYES: Mayor Blom Councilmember Avery Councilmember Grant,
Councilmember Stapleton Councilmember Weigand
NAYS: Mayor Pro Tern O'Neill
RECUSED: Councilmember Kleiman
ATTEST:
LEILANI I. BROWN,ICITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Af\RbN C. HARP, CITY ATTORNEY
a
Attachment(s): Exhibit A — Development Agreement
Exhibit "A"
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663-3884
Attn: Citv Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for the
benefit of the City of Newport Beach and is exempt
from the payment of a recording fee pursuant to
Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
GOLF REALTY FUND
CONCERNING PROPERTIES REFERENCED AS "TENNIS AND PICKLEBALL
CLUB"
WITHIN THE
NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DISTRICT
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code Sections 65864-65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes
as of the _ day of , 2023 (the "Agreement Date"), and is being entered into by and
between the City of Newport Beach ("Cily"), and Golf Realty Fund LP, a California limited
partnership "Property Owner"). City and Property Owner are sometimes collectively referred to
in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Property Owner is the managing owner of and owns a fee interest in title to that
certain real property located in the City of Newport Beach, County of Orange, State of California
commonly referred to as 1602 East Coast Highway and more particularly described in the legal
description attached as Exhibit "A" and depicted on the site map attached hereto as Exhibit "B"
("Property"). The Property consists of approximately seven (7) acres and is a part of the Newport
Beach Country Club Planned Community District shown on the City's Zoning Map. The Property
comprises the area shown on Exhibit B as The Residential Sub -Area, The Tennis and Pickleball
Club Sub -Area, and The Hotel Sub -Area.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or equitable
interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance"). This Agreement is
consistent with the Development Agreement Ordinance.
D. The Parties wish to enter into Agreement to include four (4) tennis courts, fourteen
(14) pickleball courts, including a stadium (approximately one hundred four feet (104') by one
hundred forty-eight feet (148') with two pickleball courts, forty-one (41) hotel rooms, the gross
floor area of ancillary hotel uses is fourteen thousand three hundred and eighty-six (14,386) square
feet, and construct three (3) attached condominium units and two (2) single-family residences in
lieu of five (5) single-family residences.
E. As detailed in Section 3 of this Agreement, Property Owner has agreed to provide
the following significant public benefits as consideration for this Agreement: Visitor -Serving Uses
within the Coastal Zone, and other economic contributions including the payment of a Public
Benefit Fee.
-1-
F. This Agreement is consistent with the City of Newport Beach General Plan
("General Plan"), including without limitation the General Plan's designation of the Property as
"MU-H3/PR" (Mixed Use Horizontal /(Parks and Recreation) (Anomaly 46), the Coastal Land
Use Plan's designation as "MU-H/PR" (Mixed Use Horizontal / Parks & Recreation, the Newport
Beach Country Club Planned Community District that was adopted in 1997 by Ordinance No. 97-
10 in order to establish appropriate zoning to regulate land use and development of the Property
consistent with the General Plan, and the Newport Beach Country Club Planned Community
Development Plan No PC2005-002 approved for the Property on March 27, 2012 by Ordinance
No. 2012-2.
G. In recognition of the significant public benefits that this Agreement provides, the
City Council finds that this Agreement: (i) is consistent with the City of Newport Beach General
Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general
welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a
present exercise of, City's police power; (iv) is consistent and has been approved consistent with
the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update
(State Clearinghouse No. 2006011119), the Mitigated Negative Declaration No. ND2010-008 and
for the Newport Beach Country Club Planned Community District approved by the City Council
on March 27, 2012 and the Addendum to Mitigated Negative Declaration No. ND2010-008, both
of which analyze the environmental effects of the Project on the Property; 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 March 23, 2023, City's Planning Commission held a public hearing on this
Agreement, and made findings and determinations with respect to this Agreement, and
recommended to the City Council that the City Council approve this Agreement.
I. On November 14, 2023, the City Council held a public hearing on this Agreement
and considered the Planning Commission's recommendations and the testimony and information
submitted by City staff, Property Owner, and members of the public. On November 28, 2023,
consistent with applicable provisions of the Development Agreement Statute and Development
Agreement Ordinance, the City Council adopted its Ordinance No. 2023-19 (the "Adopting
Ordinance"), finding this Agreement to be consistent with the City of Newport Beach General Plan
and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Property Owner 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. 2023-19 approving and
adopting this Agreement.
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"Agreement" shall mean this Development Agreement, as the same may be amended from
time to time.
"Agreement Date" shall mean November 28, 2023 which date is the date the City Council
adopted the Adopting Ordinance.
"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, Section 15000 et seq.)
("CEQA Guidelines"), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California charter city.
"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, Bureau of Labor Statistics for all urban consumers (all items)
for the Los Angeles -Long Beach -Anaheim, California Area, All Urban Consumers, All Items,
Base Period (1982-84=100), 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.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections
65864-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean the amendment to Newport Beach Country Club Planned
Community Development Plan (PC-47) adopted pursuant to Ordinance No. 2012-2 and as
amended by Ordinance No. 2023-18; General Plan Amendment adopted pursuant to Resolution
No. 2023-70; and Local Coastal Program Implementation Plan Amendment (also referred to herein
as Title 21 of the Newport Beach Municipal Code) adopted pursuant to Resolution No. 2023-71 but
subject to California Coastal Commission final review and approval.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Agreement 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 Agreement Date that impairs or restricts Property Owner's rights set forth in
this agreement, unless such amendment or modification is expressly authorized by this Agreement
or is agreed to by Property Owner in writing: the General Plan, the Coastal Land Use Plan, the
Development Plan, the Local Coastal Program Implementation Plan (Title 21); and, to the extent
not expressly superseded by the Development Plan or this Agreement, all other land use and
subdivision regulations governing the permitted uses, density and intensity of use, design,
improvement, and construction standards and specifications, procedures for obtaining required
City permits and approvals for development, and similar matters that may apply to development
of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of
the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions).
Title 20 of the Municipal Code (planning and zoning) and Title 21 of the Municipal Code (local
coastal program implementation plan), 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 entry upon
public property; or (v) the exercise of the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date that
is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance, 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; (iii) if a lawsuit is timely filed challenging the validity of the Adopting
Ordinance, this Agreement, and/or any of the Development Regulations approved on or before the
Agreement Date, the date on which said challenge is finally resolved in favor of the validity or
legality of the Adopting Ordinance, this Agreement, the Development Plan and/or the applicable
Development Regulations, which 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; (iv) the date of final approval of Amendment
to the Local Coastal Program Implementation Plan for the Project; or (v) if a lawsuit is timely filed
challenging the validity or legality of the approval of Amendment to the Local Coastal Program
rd
Implementation Plan for the Project, the date on which said challenge is finally resolved in favor
of the validity or legality of Amendment to the Local Coastal Program Implementation Plan for
the Project, 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 seq., 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 seq., 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 sec .
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006-76, as amended through the Agreement Date but excluding any
amendment after the Agreement Date that impairs or restricts Property Owner's rights set forth in
this Agreement, unless such amendment is expressly authorized by this Agreement, is authorized
by Sections 8 or 9, or is specifically agreed to by Property Owner. The Land Use Plan of the Land
Use Element of the General Plan was approved by City voters in a general election on November
7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from . any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"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.
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"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"P4qy" or "Parties" shall mean either City or Property Owner or both, as determined by
the context.
"Project" shall mean all on -site and off -site improvements that Property Owner is
authorized and/or may be required to construct with respect to each parcel of the Property, as
provided in this Agreement and the Development Regulations, as the same may be modified or
amended from time to time consistent with this Agreement and applicable law.
"Property" is described in Exhibit "A" and generally depicted on Exhibit `B" as The Tennis
and Pickleball Club, The Residential, and The Hotel Sub -Areas shown on "Exhibit B".
"Property Owner" shall mean Golf Realty Fund, a California limited partnership and any
successor or assignee, including lessees, to all or any portion of the right, title, and interest of Golf
Realty Fund in and to ownership of all or a portion of the Property.
"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 Property Owner is permitted to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistencv. Zonina Implementation.
This Agreement and the Development Regulations applicable to the Property are consistent
with the General Plan and the Newport Beach Country Club Planned Community Development
Plan (PC-47) as amended by the approvals in the Development Plan adopted concurrently herewith
(including but not limited to the amendment to the Newport Beach Country Club Planned
Community Development Plan (PC-47). The amendment to the Local Coastal Program
Implementation Plan is subject to final review and approval by the California Coastal Commission.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Property Owner Representations and Warranties Regarding Ownership of the Property and
Related Matters Pertaining to this Agreement.
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Property Owner and each person executing this Agreement on behalf of Property Owner
hereby represents and warrants to City as follows: (i) Property Owner or any co-owner comprising
Property Owner is a legal entity and that such entity is duly formed and existing and is authorized
to do business in the State of California; (ii) if Property Owner or any co-owner comprising
Property Owner is a natural person that such natural person has the legal right and capacity to
execute this Agreement; (iii) that all actions required to be taken by all persons and entities
comprising Property Owner to enter into this Agreement have been taken and that Property Owner
has the legal authority to enter into this Agreement; (iv) Property Owner'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 Property Owner or any person or entity comprising
Property Owner has to any third party; (v) that neither Property Owner nor any co-owner
comprising Property Owner is the subject of any voluntary or involuntary petition in bankruptcy;
and (vi) Property Owner has the authority and ability to enter into or perform any of its obligations
set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Term" shall commence on the Effective Date and
continue until 20_, unless otherwise terminated or modified pursuant to its terms.
Notwithstanding any other provision set forth in this Agreement to the contrary, if any
Party reasonably determines that the Effective Date will not occur because (i) the Adopting
Ordinance or any of the Development Regulations approved on or before the Agreement Date for
the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non -
appealable judgment is entered in a judicial action challenging the validity or legality of the
Adopting Ordinance, this Agreement, the LCPA for the Project 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 Property Owner'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 second (2nd)
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 Property Owner's complete satisfaction, performance,
and payment, as applicable, of all Development Exactions, the issuance of all required final
occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies)
of all required offers of dedication.
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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 Property Owner
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, Property Owner shall pay to City a fee that shall be in addition to any other fee or
charge to which the Property and the Project would otherwise be subject to (herein, the "Public
Benefit Fee") in the total sum of six hundred eighty-five thousand seven hundred ninety-six dollars
and 25/100 ($685,796.25) broken down as follows: (i) one -hundred twenty-six thousand nine
hundred ninety dollars and 00/100 ($126,990) per residential dwelling unit for a sum of six hundred
thirty-four thousand nine hundred fifty dollars and 00/100 ($634,950.00) for the residential units;
and (ii) thirteen dollars and 65/100 ($13.65) per square foot of the three thousand seven hundred
twenty-five (3,725) square foot Tennis and Pickleball Clubhouse for a sum of fifty thousand eight
hundred forty six dollars and 25/100 ($50,846.25), with the unpaid balance of said Public Benefit
Fee increased on the first January 1 following the Effective Date of this Agreement by the
percentage increase in the CPI Index between the Effective Date and said January 1st date (the first
"Adjustment Date") and thereafter with the unpaid balance of said Public Benefit Fee increased
on each subsequent January I during the Term of this Agreement (each, an "Adjustment Date")
by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date.
The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall
in each instance be calculated based on the then most recently available CPI Index figures such
that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently
available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the
CPI Index for November of the preceding year, the percentage increase in the CPI Index for that
partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of
the preceding year with the CPI Index for May of the preceding year (a 6-month period). In no
event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or
unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date.
Property Owner shall pay the Public Benefit Fee at the following time(s): (i) As to the residential
dwelling units, prior to the issuance of the first building permit for any residential unit; and (ii) as
to the Tennis and Pickleball Clubhouse, prior to the issuance of the first building permit.
Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term
of this Agreement, City shall not increase the Public Benefit Fee except pursuant to the CPI Index
as stated in this Section 3.1. The Public Fee Benefit Fee shall be calculated based on the total
gross square footage of the Tennis and Pickleball Clubhouse. Property Owner shall not be entitled
to any credit or offset to the Public Benefit Fee for any existing buildings or structures. Property
Owner 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 Property Owner's
vesting rights to be acquired hereunder, and that Property Owner expressly waives any
constitutional, statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such fee on any ground whatsoever, including without
limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code
Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement
for Property Owner's default, if Property Owner 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 Development Plan.
3.2 Other Public Benefits.
The development of the Project will include the addition of Visitor -Serving Uses consistent
with the City's Coastal Land Use Plan and will provide a unique amenity for those visitors whose
interests include tennis and pickleball recreational uses. It is anticipated that the Property will
continue to host numerous events of significant social and economic benefit to the City, its citizens,
businesses and charitable institutions.
4. Development of Project.
4.1 Applicable Regulations; Property Owner'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)
Property Owner shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with
the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein
is intended to limit or restrict City's discretion with respect to (i) review and approval requirements
contained in the Development Regulations, (ii) exercise of any discretionary authority City retains
under the Development Regulations, (iii) the approval, conditional approval, or denial of any
Subsequent Development Approvals applied for by Property Owner, or that are required, for
Development of the Project as of the Agreement Date provided that all such actions are consistent
with the Development Regulations, or (iv) any environmental approvals that may be required
under CEQA or any other federal or state law or regulation in conjunction with any Subsequent
Development Approvals that may be required for the Project, and in this regard, as to future actions
referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion to the same extent
City would have such discretion in the absence of this Agreement. In addition, it is understood
and agreed that nothing in this Agreement is intended to vest Property Owner's rights with respect
to any laws, regulations, rules, or official policies of any other governmental agency or public
utility company with jurisdiction over the Property or the Project; or any applicable federal or state
laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that
override or supersede the provisions set forth in this Agreement, and regardless of whether such
overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the
Property or the Project prior or subsequent to the Agreement Date.
Property Owner has expended and will continue to expend substantial amounts of time and
money in the planning and entitlement process to permit Development of the Project in the future.
Property Owner represents and City acknowledges that Property Owner would not make these
expenditures without this Agreement, and that Property Owner is and will be making these
expenditures in reasonable reliance upon obtaining vested rights to Develop the Project as set forth
in this Agreement.
E
Property Owner may apply to City for permits or approvals necessary to modify or amend
the Development specified in the Development Regulations, provided that unless this Agreement
also is amended, 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. In addition, Property Owner may apply to City for approval of minor
amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of
approval, consistent with City of Newport Beach Municipal Code section 19.12.090. This
Agreement does not constitute a promise or commitment by City to approve any such permit or
approval, or to approve the same with or without any particular requirements or conditions, and
City's discretion with respect to such matters shall be the same as it would be in the absence of
this Agreement.
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any ordinance,
policy, rule, regulation, or other measure relating to Development of the Project that is enacted or
becomes effective after the Agreement Date to the extent it conflicts with this Agreement. This
Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other
measure applicable to the Project pursuant to California Government Code Section 65866
consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction
Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a
construction company was not exempt from a city's growth control ordinance even though the city
and construction company had entered into a consent judgment (tantamount to a contract under
California law) establishing the company's vested rights to develop its property consistent with
the zoning. The California Supreme Court reached this result because the consent judgment failed
to address the timing of development. The Parties intend to avoid the result of the Pardee case by
acknowledging and providing in this Agreement that Property Owner shall have the vested right
to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that
Property Owner deems appropriate within the exercise of Property Owner'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 Agreement 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 Property Owner'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. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and
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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 Property
Owner 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 Property Owner, and monitoring
compliance with any requirements applicable to Development of the Project, all at the rates in
effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Property
Owner 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, Property Owner 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 Property Owner and the Project in the absence of this Agreement; provided, however, that to
the extent the scope and extent of a particular Development Exaction (excluding any development
impact fee) for the Project has been established and fixed by City in the conditions of approval for
any of the Development Regulations approved on or before the Agreement Date, City shall not
alter, increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without Property Owner's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In
addition, nothing in this Agreement is intended or shall be deemed to vest Property Owner against
the obligation to pay any of the following (which are not included within the definition of
"Development Exactions") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit, inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees
and charges levied by any other public agency, utility, district, or j oint 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 Chapter 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 Property Owner'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) Property Owner 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
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prevents or precludes compliance with any provision of this Agreement, City or Property Owner
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 Property Owner shall meet and confer in good faith in a reasonable attempt to
determine whether a modification or suspension of this Agreement, in whole or in part, is necessary
to comply with such overriding federal, state, or City law or regulation. In such negotiations, City
and Property Owner agree to preserve the terms of this Agreement and the rights of Property
Owner as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Property Owner at no cost to City in resolving the conflict
in a manner which minimizes any financial impact of the conflict upon Property Owner. City also
agrees to process in a prompt manner Property Owner's proposed changes to this Agreement, 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 Property Owner'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 Property Owner 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 Cgpacity. 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 Property Owner
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.
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
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15.45.070 or by unilateral termination by City in the event of an uncured default of Property
Owner.
6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as
authorized herein or pursuant to California Government Code section 65869.5, this Agreement
shall be enforceable by either Parry 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 Property Owner'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. Property Owner (including any successor to the Property Owner executing
this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount
City may reasonably establish from time to time to cover the actual and necessary costs for the
annual review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
7.2 Property Owner Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Property Owner is required to demonstrate good faith
compliance with the terms of the Agreement. Property Owner agrees to furnish such evidence of
good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30)
days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure. The Zoning Administrator shall conduct a duly noticed hearing and shall
determine, on the basis of substantial evidence, whether or not Property Owner has, for the period
under review, complied with the terms of this Agreement. If the Zoning Administrator finds that
Property Owner has so complied, the annual review shall be concluded. If the Zoning
Administrator finds, on the basis of substantial evidence, that Property Owner has not so complied,
written notice shall be sent to Property Owner by first class mail of the Zoning Administrator's
finding of non-compliance, and Property Owner 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 Property
Owner, Property Owner must commence the cure within such thirty (30) calendar days and
diligently pursue such cure to completion. If Property Owner fails to cure such noncompliance
within the time(s) set forth above, such failure shall be considered to be a Default and City shall
be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Property
Owner'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 Property Owner or limit City's rights or remedies for any such
Default.
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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 (ten (10) 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 Parry 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 Property Owner notice of default and may immediately
pursue remedies for a Property Owner Default that result in an immediate threat to public health,
safety or welfare.
8.2 Default by Property Owner.
If Property Owner is alleged to have committed a non -monetary Default and it disputes the claimed
Default, it may make a written request for an appeal hearing before the City Council within ten
(10) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next
available City Council meeting to consider Property Owner's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive
any right to a hearing on the claimed Default. If Property Owner's appeal of the Notice of Default
is timely and in good faith but after a public hearing of Property Owner's appeal the City Council
concludes that Property Owner is in Default as alleged in the Notice of Default, the accrual date
for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended
until .the City Council's denial of Property Owner's appeal is communicated to Property Owner in
writing.
8.3 Citv's Option to Terminate Agreement.
In the event of an alleged Property Owner Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Property Owner with the
opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying
with Section 8.2 if Property Owner 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 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 Property Owner.
Any such judicial challenge must be brought within thirty (30) days of service on Property Owner,
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.
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If Property Owner alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Property Owner may pursue any equitable remedy available to it under
this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief,
or specific performance of City's obligations set forth in this Agreement. Upon a City Default,
any resulting delays in Property Owner's performance hereunder shall neither be a Property Owner
Default nor constitute grounds for termination or cancellation of this Agreement by City and shall,
at Property Owner's option (and provided Property Owner delivers written notice to City within
thirty (30) days of the commencement of the alleged City Default), extend the Term for a period
equal to the length of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's
right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to restore
the Property to its pre-existing condition once implementation of this Agreement has begun. After
such implementation, both Property Owner 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. Property Owner and City have invested significant time and
resources and performed extensive planning and processing of the Project in agreeing to the terms
of this Agreement and will be investing even more significant time and resources in implementing
the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum
of money which would adequately compensate Property Owner or City for such efforts. For the
above reasons, City and Property Owner agree that damages would not be an adequate remedy if
either City or Property Owner fails to carry out its obligations under this Agreement. Therefore,
specific performance of this Agreement is necessary to compensate Property Owner if City fails
to carry out its obligations under this Agreement or to compensate City if Property Owner falls to
carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees
due from Property Owner as set forth herein; and (ii) nothing in this Section 8.7 is intended or
shall be interpreted to limit or restrict Property Owner's indemnity obligations set forth in Article
10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth
in Section 8.10. 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
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Default by the City shall be an action in mandamus, specific performance, or other injunctive or
declaratory relief.
8.8 Additional City Remedy for Property Owner's Default.
In the event of any Default by Property Owner, 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 Property
Owner's Default without recourse from Property Owner 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 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 Maieure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions.
Except as specified above, nonperformance shall not be excused because of the act or omission of
a third person. In no event shall the occurrence of an event of force majeure operate to extend the
Term of this Agreement. In addition, in no event shall the time for performance of a monetary
obligation, including without limitation Property Owner's obligation to pay Public Benefit Fees,
be extended pursuant to this Section.
10. Indemnity Obligations of Pronertv Owner.
10.1 Indemnity Arising From Acts or Omissions of Probertv Owner.
Property Owner shall indemnify, defend, and hold harmless City and City's officials,
employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties") from
and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses
(including but not limited to attorneys' fees and costs) (collectively, a "Claim") that may arise,
directly or indirectly, from the acts, omissions, or operations of Property Owner or Property
Owner's agents, contractors, subcontractors, agents, or employees in the course of Development
of the Project or any other activities of Property Owner relating to the Property or pursuant to this
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Agreement. City shall have the right, in its sole discretion, to select and retain counsel to defend
any Claim filed against City and/or any of City's Affiliated Parties, and Property Owner shall pay
the reasonable cost for defense of any Claim. The indemnity provisions in this Section 10.1 shall
commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall
survive the Termination Date.
10.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 10.1, Property Owner shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the
Project (including without limitation any actions taken pursuant to CEQA with respect thereto),
any Subsequent Development Approval, or the approval of any permit granted pursuant to this
Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness
fees, City staff costs, and court costs. City shall promptly notify Property Owner of any such
Claim and City shall cooperate with Property Owner in the defense of such Claim. If City fails to
promptly notify Property Owner of such Claim, Property Owner shall not be responsible to
indemnify, defend, and hold City harmless from such Claim until Property Owner is so notified
and if City fails to cooperate in the defense of a Claim Property Owner shall not be responsible to
defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for
any losses attributable thereto. City shall be entitled to retain separate counsel to represent City
against the Claim and the City's defense costs for its separate counsel shall be included in Property
Owner's indemnity obligation, provided that such counsel shall reasonably cooperate with
Property Owner in an effort to minimize the total litigation expenses incurred by Property Owner.
In the event either City or Property Owner recovers any attorney's fees, expert witness fees, costs,
interest, or other amounts from the party or parties asserting the Claim, Property Owner shall be
entitled to retain the same (provided it has fully performed its indemnity obligations hereunder).
The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless
of whether the Effective Date occurs, and shall survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Agreement Date Property Owner 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 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 Property Owner in connection with Property Owner's Development of the Project.
The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored
on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided
in Section 2.4 of this Agreement. The indemnity provisions in this Section 10.3 shall commence
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on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the
Termination Date.
11. Assignment.
Property Owner shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer") Property Owner's interest in or fee title to the Property, in whole or in part, to any
person, partnership, joint venture, firm, or corporation (which successor, as of the effective date
of the Transfer, shall become the "Property Owner" 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
Property Owner'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 Property Owner's rights or
interest under this Agreement shall be made unless made together with the Transfer of all or a part
of the Property; and (ii) prior to the effective date of any proposed Transfer, Property Owner (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
Property Owner and in a form subject to the reasonable approval of the City Attorney of City (or
designee), pursuant to which the transferring Property Owner assigns to the successor Property
Owner and the successor Property Owner assumes from the transferring Property Owner all of the
rights and obligations of the transferring Property Owner with respect to the Property or portion
thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform
such obligations that must be performed off of the portion of the Property so Transferred that are
a condition precedent to the successor Property Owner'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 Property Owner shall continue to be jointly
and severally liable to City, together with the successor Property Owner, to perform all of the
transferred obligations set forth in or arising under this Agreement unless the transferring Property
Owner is given a release in writing by City, which release shall be only with respect to the portion
of the Property so Transferred in the event of a partial Transfer. City shall provide such a release
upon the transferring Property Owner's full satisfaction of all of the following conditions: (i) the
transferring Property Owner 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 Property Owner
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 Property
Owner 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 Property Owner either (A) provides City with substitute security equivalent to any
security previously provided by the transferring Property Owner to City to secure performance of
W.
the successor Property Owner's obligations hereunder with respect to the Property or the portion
of the Property so Transferred or (B) if the transferred obligation in question is not a secured
obligation, the successor Property Owner either provides security reasonably satisfactory to City
or otherwise demonstrates to City's reasonable satisfaction that the successor Property Owner 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)
and/or (B) shall be documented in writing.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Property Owner 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 Property Owner
or other affirmative covenants of Property Owner, 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 performed by Property Owner 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 Property Owner of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default within
ten (10) days after receiving a Notice of Default with respect to a monetary Default and within
thirty (30) 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
Fut
continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default within
thirty (30) 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 thirty (30)-day
period. In the case of a non -monetary Default that cannot with diligence be remedied or cured
within thirty (30) 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 thirty (30) 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 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:
With a copy to:
TO PROPERTY OWNER:
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Attorney
Golf Realty Fund
One Upper Newport Plaza
Newport Beach, California 92660
Attn: Robert O'Hill
Either Party may change the address stated in this Section 13.1 by delivering notice to the other
Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall be
addressed and submitted to the new address. Notices delivered in accordance with this Agreement
shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days
after deposit in the mail as provided above.
14.3 Project as a Private Undertaking.
Any future Development of the Project is a private undertaking. Neither Party will be
acting as the agent of the other in any respect, and each Party will be 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 or user 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 Estonnel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Parry certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if such
is not the case, then the other Party shall describe the nature and amount of the actual or prospective
Default.
The Party requested to furnish an estoppel certificate shall execute and return the certificate
within thirty (30) days following receipt. Requests for the City to furnish an estoppel certificate
shall include reimbursement for all administrative costs incurred by the City including reasonable
attorney's fees incurred by the City in furnishing an estoppels certificate.
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 Parry's right to demand strict compliance by the
other Party in the future.
14.9 Counterparts.
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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
neither Party shall receive any of the benefits of the Agreement without the full performance by
such Party of all of its obligations provided for under this Agreement. Without limiting the
generality of the foregoing, the Parties intend that Property Owner shall not receive any of the
benefits of this Agreement if any of Property Owner'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 Property Owner shall cooperate as required, despite this Agreement, should third party
litigation result in the nonperformance of Property Owner'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.
This Agreement has been drafted after negotiation and revision. Both City and Property
Owner are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Property Owner had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Property Owner 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 applicable principle or presumptions of contract construction or interpretation, if
any, shall be used to construe the whole or any part of this Agreement in favor of or against either
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. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs
with the Property and each portion thereof; and (iii) is binding upon each Party and each successor
in interest during its ownership of the Property or any portion thereof. Every person or entity who
22
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 Property Owner. 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 internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the Superior
Court of the County of Orange, State of California, or the United States District Court for the
Central District of California. The Parties waive all provisions of law providing for the removal
or change of venue to any other court.
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.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESCRIPTION
DESIGNATION
A
Legal Description of Property
B
Depiction of the Property
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
23
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.
24
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"PROPERTY OWNER"
GOLF REALTY FUND, a California
limited partnership
By: O Hill Capital, a California limited
partnership
Its General Partner
IN
Robert O Hill, General Partner
"CITY"
CITY OF NEWPORT BEACH
Its: Mayor
25
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
-26-
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The Property: PARCELS A, B, C AND D OF PARCEL MAP 2016-151, LOCATED IN THE
CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA,
RECORDED IN BOOK 402 PAGES 24 THROUGH 32 INCLUSIVE OF PARCEL MAPS,
RECORDS OF SAID COUNTY.
A10-00771 v401.06.11 FINAL
EXHIBIT B
DEPICTION OF PROPERTY
A10-00773 v401.06.11 FINAL
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. 2023-19 was duly introduced on the 141h day of November, 2023, at a regular meeting, and adopted by
the City Council at a regular meeting duly held on the 28th day of November, 2023, and that the same was
so passed and adopted by the following vote, to wit:
AYES:Mayor Noah Blom, Councilmember Brad Avery, Councilmember Robyn Grant,
Councilmember Joe Stapleton, Councilmember Erik Weigand
NAYS: Mayor Pro Tern Will O'Neill
RECUSED: Councilmember Lauren Kleiman
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said
City this 29th day of November, 2023.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
aaJ
Leilani I. Brown, MM
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. 2023-19 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:
Introduced Ordinance: November 18, 2023
Adopted Ordinance: December 2, 2023
In witness whereof, I have hereunto subscribed my name thistEA day of December, 2023.
�vtl PORT
n
Leilani I. Brown, MMC
City Clerk
City of Newport Beach, California