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Home My WebLink AboutC-4714-1 - Agreement for Non-Habitability of Commerical Floor Area (for 2700 West Coast HighwayAGREEMENT FOR NON -HABITABILITY OF COMMERCIAL FLOOR AREA BETWEEN THE CITY OF NEWPORT BEACH AND MARINERS MILE CO. This Agreement for Non -Habitability of Commercial Floor Area ("Agreement") is entered into this 14th day of January, 2026 ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and Charter City ("CITY"), and Mariners Mile Co., a California general partnership by and through 2700 W Coast Highway, LLC, its Authorized Agent, ("OWNER") whose address is 4040 MacArthur Boulevard Suite 250 Newport Beach, CA 92660, and is made with reference to the following: RECITALS A. OWNER is the record owner of the property commonly known as 2700 West Coast Highway, in the City of Newport Beach, County of Orange, State of California, County Assessor's Parcel Numbers 049-121-23 & 049-121-24, as more fully described in the legal description, attached hereto as Exhibit "A" and incorporated herein by reference ("Property"). B. The undersigned, an authorized representative of OWNER, warrants and certifies under penalty of perjury that, as of the date this document is executed, OWNER is the sole owner of record of the Property. C. OWNER has submitted an application ("Application") requesting approval for Permit No. XC2025-5223 D. The Application includes a request to increase the building area by approximately 950 square feet ("Project"); however, the Property's current square footage is capped by the maximum floor area ratio ("FAR"), and OWNER intends to pursue a Transfer of Development Rights assigned from 2615 Avon Street, also owned by OWNER. E. To facilitate the CITY review and issuance of Permit No. XC2025-5223, OWNER has proposed to keep Suite 195, consisting of 1,575 square feet of internal space within the Property, as depicted on the floor plan attached as Exhibit "B" ("Restricted Area"), vacant until completion of the Transfer of Development Rights process and related approvals. F. The CITY requires assurance, in the form of this Agreement, that the identified internal space will remain vacant and unusable after the issuance of Permit No. XC2025-5223 and during the development of the Project G. The parties desire to enter into this Agreement to outline the terms and conditions governing the Restricted Area during the pendency of the Transfer of Development Rights process. Mariners Mile Co. Page 1 NOW, THEREFORE, in consideration of CITY's approval, OWNER covenants as follows: 1. Recitals. City and OWNER acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. Purpose. Each covenant is made to promote the general scheme and purpose of the General Plan and zoning regulations set forth in the Municipal Code of CITY as now existing and as hereafter amended. 3. Property Use Restrictions. 3.1 Prohibited Uses: Upon the CITY's issuance of Permit No. XC2025-5223, the Restricted Area must remain vacant. It shall not be occupied or utilized for commercial, retail, office, storage (excluding safety -related or protective measures), or any other revenue -generating or customer -serving purpose. 3.2 Leasing and Improvement Restrictions: For the duration of this Agreement, the OWNER shall not perform tenant improvements, nor shall the OWNER assign, lease, or license the Restricted Area for occupancy. Access is permitted only when reasonably necessary for maintenance, security, or legal compliance. 3.3 Transfer of Development Rights (TDR): Nothing in this Agreement shall preclude or limit the OWNER's right to pursue a Transfer of Development Rights from 2615 Avon Street. 3.4 Contingency upon Denial of TDR: If the CITY denies the TDR, the OWNER may, at the CITY's discretion, finalize Permit No. XC2025-5223, provided the OWNER permanently blocks access to the Restricted Area and records a deed restriction prohibiting its use in a form approved by the City Attorney's Office. In such an event, the deed restriction shall encumber the Property until the total FAR complies with maximum allowable limits without the need for the deed restriction. 3.5 Termination upon Approval of TDR: If the CITY approves the TDR, the parties shall cooperate in good faith to terminate this Agreement after the conditions outlined in Section 20.46.040 of the Newport Beach Municipal Code have been met by the Owner. 4. Indemnification. OWNER shall defend, indemnify and hold harmless CITY, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising out of or in connection with this Agreement. This includes, but is not limited to, the continued existence of any improvements at the Property, the vacancy or blocking of access to the Restricted Area, any third -party or demand of any nature whatsoever concerning the Property, the Mariners Mile Co. Page 2 Restricted Area, the Agreement, or any activities thereon or thereunder, and the CITY's processing of Permit No. XC2025-5223 or the Transfer of Development Rights. This obligation survives the termination or expiration of this Agreement. 5. No Changes Without Authority. This Agreement shall remain in full force and effect during the term of the Permit No. XC2025-5223 or any modification or amendment thereof to Permit No. XC2025-5223. There shall be no change, alteration, deletion or addition to the Property except as is specifically set forth in the plans and specifications approved by the CITY as part of the Application. Any modification to the Property, with the exception of routine maintenance and repair, is prohibited without the prior written consent of the CITY. 6. Notices. All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from OWNER to CITY shall be addressed to CITY at: Community Development Department Attn: Community Development Director City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92658 All notices, demands, requests or approvals from City to OWNER shall be addressed to OWNER at: Mariners Mile Co. Attn: Tristan Harris, Authorized Agent 4040 MacArthur Boulevard, Suite 250 Newport Beach, CA 92660 7. Termination. If the OWNER uses or allows the use of the Property in violation of the restrictions set forth in this Agreement, the OWNER shall be deemed in default. Upon receipt of written notice specifying the violation, the OWNER shall immediately cease the unauthorized use. Failure to immediately cease the violation or diligently pursue an abatement will entitle the CITY to automatically terminate this Agreement without further notice and to pursue all legal and equitable remedies available by law. 8. Reservation of City Authority and Discretion. Nothing contained in this Agreement shall be construed to limit, waive, or diminish the CITY's legislative, quasi-judicial, or administrative authority. The CITY retains full discretion and all its governmental prerogatives regarding the review and approval of the Transfer of Development Rights, entitlements, or any permits related to the construction or use of the Property. This Mariners Mile Co. Page 3 Agreement does not modify or restrict the exercise of the CITY's inherent governmental functions. 9. Right of Inspection. During any reasonable hour, the OWNER and occupants of the Property shall allow any officer, employee, or agent of the CITY to enter and inspect the Property or any building or premises on the Property, whenever such inspection is determined to be necessary to verify or secure compliance with, or prevent a violation of, this Agreement. 10. Compliance with all Laws. OWNER shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 11. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 12.Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13.Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 14.Amendments. This Agreement may be modified or amended only by a written document executed by both OWNER and CITY and approved as to form by the City Attorney. 15. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16.All Available Remedies. CITY shall be entitled to all legal and equitable remedies available under the law upon the default of the terms of this Agreement by OWNER, or by any purchaser, lessee or sublessee of the Property, or their assigns and successors, including, without limitation, specific performance of the terms of the Agreement. 17. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement Mariners Mile Co. Page 4 shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 18. No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall NOT be entitled to attorney's fees. [SIGNATURES ON NEXT PAGE] Mariners Mile Co. Page 5 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aar n C. Harp b J- j 5. Z u ej City Attorney ATTEST: �� Date: a?9 By: Lena Shumway City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: O�Isl2� By:� �� JaimMurillo Community Development Director OWNER(S): Mariners Mile Co., a California general partnership By: 2700 W Coast Highway, LLC Its: Authorized Agent By: WCH Partners, LLC Its: Manager Date: Signed in CounterparT By: Tristan D. Harris Manager [END OF SIGNATURES] ATTACHMENTS: Exhibit A — Legal Description Exhibit B — Restricted Area Mariners Mile Co. Page 6 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: 1_l1 4�_ -(�7i Alon C. Harp 6 1 S Z,�o City Attorney ATTEST: Date: Bv: Lena Shumway City Clerk ATTACHMENTS CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Jaime Murillo Community Development Director OWNER(S): Mariners Mile Co., a California general partnership By: 2700 W Coast Highway, LLC Its: Authorized Agent By: WCH Partners, LLC Its: Manager Date: By: 7Z.✓ / Tristan D. Harris Manager [END OF SIGNATURES] Exhibit A — Legal Description Exhibit B — Restricted Area Mariners Mile Co. Page 6 EXHIBIT A LEGAL DESCRIPTION r u ort Ity. by "77 Mariners Mile Co. Page A-1 EXHIBIT B RESTRICTED AREA Mariners Mile Co. Page B-1 Exhibit B 5.14.24 2700 West Coast Highway Starbucks poor 2700 We t Coast Highway Final Tenant Stevenson Newport Beath. CA g2883 D ' ' RAD Systems 1 R a,w n 5 1R-03 1,575AB 0.00 1,575A9 1.733.04 0.00 4040 MacArthur Blvd., Ste. 250 Newport Beach, CA 92660