HomeMy WebLinkAboutExhibit 7Exhibit No. 7
DRAFT DEVELOPMENT AGREEMENT
`q o
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: Citv Clerk
This A ent is recorded
the b_ _ `, t of the, City of 1
pursuant . y $&eit Code §§
BEACH,
LLC
and
JAMBOREE, LLC
Use Only)
request and for
e ,ch and is
a rding fee
1 and 27383.
HYATT REGENCY NEWPORT BEACH PROPERTY
(1107 JAMBOREE ROAD)
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TABLE OF CONTENTS
Page
1. Definitions .............................................................................................. ..............................4
1.1. "Adopting Ordinances" ................................................................ ..............................4
1.2. "Agreement" ................................................................................ ..............................4
1.3. "Approval Date" .......................................................................... ..............................4
1.4. " Cancellation" .....................................................................x,....... ..............................4
1.5. " CEQA.. ...................................... .............................. .............. ..............................4
1.6. " CIOSA............................................................. . .. ..............................4
1.7. "City„ ................. ............................... ......... .........................4
1.8. "City Council" ..................... .....'. ...... .... 4
......... .............
1.9. " Develop .. ............. ............................... ; ....................... ..............4
1.10. "Development Fees "............................ ..............................5
1.11. "Development Plan ............. M* ,' . , ; ... ..............................5
u,
1.12. "Effective Date" ......... ... ..' .................. ..............................5
_
1.13. "EIR.. .................. ............ ......................................... ..............................5
1.14. "ENR Inds" ,.......
................................. ..............................5
l.ls. .. " .......................................... ..............................s
u:y7
6. "Exishn al R o"'s ................................................................................... 5
"Fair Share T' c Co ution Ordinance" .............................. ..............................5
1.18..« Time-Shi Building Permit" ............................................ ..............................5
1.19. "Fu 1 Regulations" ...................................................... ..............................5
1.20. " GenerafPlan .............................................................................. ..............................5
1.21. "General Regulations" ................................................................. ..............................6
1.22. "Governmental Reservations" ..................................................... ..............................6
1.23. " Include" ...................................................................................... ..............................7
1.24. "Visitor Serving and Recreational Facilities Fee" ....................... ..............................7
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TABLE OF CONTENTS
L
1.25. "Mortgage" .................................................................................. ..............................7
1.26. " Mortgagee" ................................................................................. ..............................7
1.27. "Party" or " Parties" ...................................................................... ..............................7
1.28. " Project" ....................................................................................... ..............................7
1.29. "Project Approvals" ...........................................................,........ ..............................7
1.30. "Project Conditions" .................. ............................... ............. ..............................7
1.31. "Property .. ..............................8
................
1.32. "Single Site Time -Share Plan .. .................. x. ,: ................... ..........................7
1.33. "Single Time -Share Property" ...............8
1.34. "Subsequent Approvals "
............................ w;l z ......................... ..................8
1.35. "Term" ............................ r................. ..............................8
1.36. "Time -Share Fee" ............. ,. .
... ..............................8
I. Maw..
x,...
1.37. "Time Share Unit" ......... .................. ..............................8
1.38. ` T1m�S1 i Um haser"................................................ .........................8
�,
4a,
1.39. "Tim&Sh w_.se ". ........ ................................... ..............................8
1.40.,, or t" ........................................ ..............................9
2.velopment o arty..: ..................................................... ..............................8
2 T _ pevelopment am ............................................................... ..............................8
2.2. liance wig project Conditions ........................................... ..............................9
2.3. Comp *ith General Regulations ........................................ ..............................9
2.4. No Convicting Enactments ......................................................... .............................10
2.5. Public Health and Safety/Uniform Codes ................................... .............................10
2.6. Police Power ............................................................................... .............................11
2.7. Public Works Improvements ....................................................... .............................11
2.8. Overriding Federal and State Laws and Regulations ................. ..............................1 l
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W
a
5.
n
TABLE OF CONTENTS
2.9. Procedural Regulations ............ ...............................
Benefits to Owner . .......................... .................................
.
3.1. Right to Develop ...................... ..............................,
3.2. Benefits to Landowner ............. ..............................,
3.3. Reservations or Dedications of Land .....................,
3.4. No Additional Traffic Related Fees or Conditions.
3.5. Time for Construction and Completion of Proj
3.6. Tentative Maps ........... ...............................
gt.
3.7. Processing and Issuance of Permits.,`° ...........
3.8. Future Approvals ........ ...............................
Fees. ........................................... .........................
4.1. Time -Share Development.... „ Kr ...........,
4.2. Visitor Serving and Recreationd Fac ktties "
4.3. Off-Site )We' - Improvem6gts. ......,
4.4. ENR lild ................. y , ' .............
�0
Page
....12
................12
................12
................13
................13
................13
12
------------------
................ 13
........ .............................14
........ .............................14
Marina ......................... 15
........ .............................15
........ .............................16
4.5. ent { sses st the Property .................. .............................16
6. Permltt,ases 11 el pment Fees Applicable to Property ..........................17
(Ci ..u.. ... 17
. � ........................................................... ...............................
5.1. wv_ llation of IOSA ............................................................... .............................17
5.2. Mamt " of CIOSA Pre -Paid Transportation Fund .............. .............................17
5.3. No Paylents Due from City ....................................................... .............................18
SalesTax ............................................................................................... .............................18
6.1. Project Construction .................................................................... .............................18
6.2. Direct Payment Process .............................................................. .............................18
6.3. Fixtures, Materials and Equipment ............................................. .............................18
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TABLE OF CONTENTS
Pase
7. Project as Private Undertaking .............................................................. .............................19
8. Effective Date; Term ............................................................................. .............................19
9. Amendment or Cancellation of Agreement .......................................... .............................19
10. Enforcement .......................................................................................... .............................19
11. Periodic Review of Compliance ................... ............................... ...... .............................18
12. Events of Def ault ................................. ............................... .......... .............................19
12.1. Default by Landowner ........................................... ............................19
12.2. Default by City ..... ............................... ......: ...... ................20
12.3. Specific Performance and Damages ies.... ...... ............20
,�
12.4. Limited Recovery of Legal Expenses by Pteva laa g Party in Any Action ............20
13. Cooperation .. ..............................' ......................_ ................. .............................20
14. Force Majeure . ............................... ..... ........ „u 4.. ... .............................20
15. Indemnity.......................................... 20
��Y Rif
16. Third Party Le hall ....................
........ ..... .. .. ................................ .............................21
17. Mortgagee e ................................... .............................. .............................21
ancesf`ropert :.......................................... .............................21
:2. Morteae ectioil ao ............................................................ .............................21
17.4. of Defa to Mortgagee; Right of Mortgagee to Cure..
18. Assignment.
18.1. Right t y ign .......................................... ...............................
18.2. Agreement Binding on Successors and Assigns .......................
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.. .............................21
.. .............................22
.. .............................22
.. .............................22
.. .............................23
TABLE OF CONTENTS
Page
19. Estoppel Certificate ............................................................................... .............................23
20. Further Actions and Instruments ........................................................... .............................23
21. Notices .................................................................................................. .............................23
22. Rules of Construction and Miscellaneous Terms ................................. .............................24
22.1. Rules of Construction ................................................................ .............................24
22.2. Time Is of the Essence .............. ............................... 24
22.3. Waiver. ............................24
22.4. Counterparts ......... ............................... .'s: x........................25
22.5. Entire Agreement ................. ........ 25
22.6. Severability ................. ............................... ....... ............. .............................25
22.7. Construction ................................................................ .............................25
.aill.
22.8. Constructive Notice and Ac c to i' «,�,.:-...................................... 25
22.9. No Third Party Beneficiaries,......., 25
22.10. ica w and Venudi ......................................... .............................25
22.11. iabih of City Office=wid Employees ............. .............................26
•l ;
2212- (wSectio din .. ........................................... .............................26
2� 13. ant SIw .................................................... .............................26
22,4�, Emirs Dom ........................................................... .............................26
22.15. No Br : . .................................................................... .............................26
23. Authority to' 26
24. Recordation... .................................................................................... .............................26
EXHIBITA .................................................................................................. ............................... A -1
EXHIBITB ...................................................................................................... ............................B -1
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DEVELOPMENT AGREEMENT
Hyatt Regency Newport Beach
(Pursuant to California Government Code sections 65864- 65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement') is entered into on
, 2008, by and between: (1) CITY OF NEWPORT BEACH, a municipal
corporation and charter City ( "City "); (2) JGKALLINS NEWPORT INVESTMENTS, LLC, a
California limited liability company ( "JGKallins "); and (3) SUNS Ir JAMBOREE, LLC, a
Delaware limited liability company ( "Sunstone ") (JGKal i Sunsione are collectively
referred to herein as "Landowner "). City and Landowner are es collectively referred to
in this Agreement as the "Parties" and individually as a "ParG'x"
A. Property /Ownership Status. JG ,is the f owner of a 25`.7 parcel of
real property (the "Property ") that is described in the des 'on attached hereto as Exhibit
A and depicted on the site map attached hereto as Exhi - Sunst'one is the leaseholder of the
Property pursuant to an assignment of lease dated May 13, 2105 between WHP Hotel Owner -1,
L.P., a Delaware limited partnership, th-LL or, and Suns : the assignee. The Property is
under the City's land use jurisdiction an pyy�ed with the egency Newport Beach
Hotel ( "Hyatt Hotel ') located at 1107 Jam ' e6 4' "' e, Prope_ is located in the California
Coastal Zone and therefore this Agreeml will approval by the California Coastal
Commission in compliancey�,Rection 65861ie Cali£ora Government Code.
" U11'
B. CIOS � keem"".
On S eptembr 14, 1992, the City Council of the City of
Newport Beach (` 1 uncil'adopted Ord No. 92 -35, through which City and
Landowner's predecessor's ' to Irvine Gtnpany, a Michigan corporation, entered into
the Circulati ovemI greement pertaining to twelve (12) parcels of
real propewy Ioc City, ing the parcel owned by Landowner. On September 11,
1995, City adopted' ce *-54 approving the First Amendment to the Circulation
Imp and Open 9W 0 Op Agredoiii dated March 12, 1996 ( "CIOSA Amendment "). The
original Citation Improv t and Open Space Agreement and the CIOSA Amendment are
collectively reed to herein the " CIOSA."
C. Pub&Benefifi under the CIOSA. Under the CIOSA, Landowner: (1) Committed
to road improvement t ent to proposed projects, made an interest -free loan to City, and pre-
paid required fair share oad improvement fees that City used as matching funds when obtaining
outside transportationlfunding; and (2) Committed to dedicating 138.1 acres for open space and
public facilities which was more than was required for the twelve (12) parcels under the City of
Newport Beach General Plan and the City of Newport Beach Park Dedication Ordinance, in
effect at the time.
D. CIOSA Building Entitlements. The CIOSA provided Landowner with certain
building entitlements with respect to the Property including the right to develop 68 hotel rooms
at the Property for a total of 479 hotel rooms (403 of which are currently existing). To date,
Landowner has not developed the 68 additional hotel rooms provided for in CIOSA.
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E. CIOSA Status. Although Landowner did not utilize all of the building
entitlements provided by CIOSA as set forth in Recital D, it fulfilled all the public benefits listed
in Recital C as if it had done so.
F. Project. Landowner has asked City to approve this Development Agreement, a
Use Permit, a Modification Permit, and a Parcel Map which would authorize the Landowner to:
(1) Exceed the base height limit of 26 feet to allow buildings at heights of 35 feet; (2) Exceed the
maximum height limit of 35 feet for an architectural cupola and tower feature of the proposed
ballroom; (3) Allow commercial tandem valet parking; (4) Reco two existing lots
allowing for a Single- Time -Share Property to be governed by a Si Time -Share Plan to
be located on one parcel and the hotel to remain on the other p (5) Establish finish grades
for the purposes of measuring height; (6) Construct 88 time -s 'thin seven buildings on
the Single -Time Share Property to be governed by a Single Tim a Plan and which will
allow the Landowner to sell, lease or convey Time- Share,ilse interests i . Single -Time Share
Property; (7) Construct a new 800 -seat ballroom facili ' (8) Construct a ne ,. ,072 square -foot
spa and fitness center, including a new outdoor pac)1 facility; (9) Construct a' ry< housekeeping
and engineering building; and (10) Construct aeU o -level marking garage ctively the
"Project"). To implement the Project without exceedi l l , ajinentitlement of 479 hotel
j )• P J , , P
rooms, Landowner is proposing to demolish 12 existing (rooms) so that the net number of
hotel rooms at the Property will be 391'q el rooms and con' 88 time share units for a total
of 479 hotel rooms /time -share units. hi implements of tie Project would require
the demolition of the existing 3,190 -sq ce Ba1P" `D'as well as the existing
engineering and maintenance building, and ov existing nine -hole golf course. The
Project will also require the removal and re fi afio -*PAcreational courtyard located in
the center of the main, omplex, and ooiated heel parking areas, hardscape, and
landscape. The major?''of the tject consists redevelopment in the northern, northwestern,
and southern portion She Properly. Other up a included in the Project would also occur
in the central portion of tiI ?ope The total ar or the Project is approximately 14 acres, or
about 55 perce of the P € cipates developing the Project in two phases
with the b. d g " .,being c cted in phase one prior to the time -share units to
be de ed in phas
CIOSA Can tion. fitven the proposed time -share use of the Property and that
CIOSA is ger needed the development of the Property, this Agreement provides for the
rescission an = ellation a Landowner's remaining rights and obligations under CIOSA
on the Effective J Can ation ").
H. Public efit. As detailed in Section 5 below, and in exchange for the approvals
any authorization contained in Recital F and the other promises and covenants herein,
Landowner has agreed to provide public benefits as consideration for this Agreement enabling
City to fund and complete Low Cost and Visitor Serving Recreational Facilities and Off -Site
Water Quality Improvements as follows: (1) Landowner's payment of Two Million Dollars
($2,000,000) in fees for Low Cost Visitor Serving and Recreational Facilities; and (2)
Landowner's payment of One Million Dollars ($1,000,000) in fees for Off -Site Water Quality
Improvements.
I. Time -Share Developments. On March 24, 1997, the City Council adopted
Ordinance No. 97 -09, which added Chapter 20.84 entitled "Time -Share Developments" to the
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City of Newport Beach Municipal Code (the "Time -Share Developments Ordinance "). 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 Time -Share
Developments Ordinance and the Development Agreement Ordinance, which requires the
amount of tax payable to the City by any Time -Share Unit Purchaser for the right of occupancy
of any Time -Share Unit to be set forth in an approved development agreement, which has been
determined to be and is set forth herein as Three Million Dollars ($3,000,000).
J. Consistency with State and Local Laws. This A t is consistent with
provisions of State law (California Government Code sections 64- 65869.5) and local law
(City of Newport Beach Municipal Code Chapter 15.45 and 2 authorize binding vested
rights agreements between the City and persons having gal o table interest in real
property to: (1) encourage investment in, and comm t `o, com sive planning and
public facilities financing; (2) strengthen the publi ann I g process courage private
implementation of the local General Plan; (3) pr a certainty in the appr f projects in
order to avoid waste of time and resources; and ( the omic costs of �opment by
providing assurance to property owners that they m ' y' _off th projects consistent with
existing policies, rules, and regulations during the term o ___rested rights agreements.
lificant p, enefits that this Agreement
wement: (1) ,. sistent with the City of
it; !)(2 s in the best interests of the
Indent y, d-1he public; (3) is entered into
ity's police power; (4) is consistent and has
rental Impact Report for the Project (State
the environmental effect of the proposed
consistent with and has been approved in a
wernment Code section 65867 and City of
20.84.
AX- Plannine Cttmissid ring - Recommendation. On 2008,
the Clt anning Comm n hel' public hearing to consider the terms and conditions of
this Agre' '_ t, made fin aril determinations with respect to this Agreement, and
recommendedite City Cot#cil that the City Council approve this Agreement.
M. City' "" ciliflearine - Approval. On 2008, the City Council
also held a public h ' ' g o this Agreement and considered the Planning Commission's
recommendations ands'' a testimony and information submitted by City staff, Landowner, and
members of the public. On , 2008, pursuant to the applicable state law
(California Government Code sections 65864- 65869.5) and local law (City of Newport Beach
Municipal Code Chapters 15.45 and 20.84), the City Council adopted its Ordinance No. _,
fording this Agreement to be consistent with the City of Newport Beach General Plan and
approving this Agreement.
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AGREEMENT
NOW, THEREFORE, incorporating the Recitals and Exhibits set forth in this Agreement.
City and Landowner agree as follows:
1. Definitions. The following terms when used in this Agreement shall have the
meanings set forth below:
1.1. "Adopting Ordinances" Shall mean:
(a) Ordinance No. 2008 -_
2008, approving this Agreement;
(b) Resolution No. 2008-
2008 approving Use Permit No. _, Parcel Map No.
(c) Resolution No.
on 2008 certifying the EIR as fully
adopting all feasible mitigation measures.
1.2. "Agreement" Shaltmean this
1.3. "Approval Date"
City Council approved the Adopting On
1.4.
Agreement.
1.5. " S mean the
Public Resources Code sect
City Council on
by the" C60-7n ncil on
dificatio � it No. _;
by th =!i#y' Council
and the CEO. Guidelines,
the date on which the
ascribed in Recital G of this
Environmental Quality Act (California
have the meaning ascribed in Recital B of this Agreement.
the City of Newport Beach, a chartered municipal
Shall mean the governing body of City.
1.9. "1111, ' -elo "shall mean all forms of use of the verb "develop" and the noun
"Development", whet* or not capitalized, means the improvement of the Property for the
purposes of completing the structures, improvements and facilities comprising the Project
including, but not limited to: grading; the construction of infrastructure and public facilities
related to the Project whether located within or outside the Property; the construction of
buildings and structures; and the installation of landscaping and parking facilities and
improvements. "Develop" or "Development" also includes the maintenance, repair, alteration,
reconstruction or redevelopment of any building, structure, improvement, landscaping or facility
after the initial construction and completion so long as consistent with the Project Approvals,
Project Conditions, the Development Plan and this Agreement.
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1.10. "Development Fees" Shall mean the Time -Share Fee, the Visitor Serving
and Recreational Facilities Fee, and the Off -Site Water Quality Fee all as set forth in Section 4 of
this Agreement.
1.11. "Development Plan" Shall mean and constitutes the plan for the
development of the Property, as embodied and stated in the Project Approvals, Project
Conditions and this Agreement.
1.12. "Effective Date" Shall mean the date this
Office of the Orange County Recorder.
1.13. "EIR" Shall mean Final Env
Clearinghouse No. 2006121052), prepared for the Project
CEQA and the CEQA Guidelines by the City Council on.,,*
1.14. "ENR Index" Shall mean
Index.
News
is recorded in the
act Report (State
fully compliant with
Cost
1.15. "Exhibit" Shall mean the Exhibf1 ji ;1his Agreement. All Exhibits are
incorporated as a substantive part of this Agreement. Exhibits to this Agreement are as
follows:
(a) Legal Descrion perry E it A);
(b) -M,ap depicting P y t B);
(� P' Approvals d Project Conditions (Exhibit C .
1.16. t g Gtiaeral Re lati Shall mean those General Regulations
approved by they ,City on or. __ ~ - ate (irrespective of their Effective Date) and
not rescin y filed bYQW action t'on or before the Approval Date.
1.17. are M gfontribution Ordinance" Shall mean City's Fair Share
lution Ord A app, codiffied in Chapter 15.38 of City's Municipal Code, together
with
"First; me -Share Building Permit" Shall mean the first building permit
issued for time sh *4yqlq0nent in any portion of the Property.
1.19. ,Future General Regulations" Shall mean those General Regulations
adopted or approved by the City in any way, after the Approval Date.
1.20. "General Plan" shall mean City's 2006 General Plan adopted by the City
Council on July 25, 2006, by Resolution No. 2006 -76, excluding any amendments after the
Approval Date unless specifically agreed to by Landowner in writing or authorized by Section 2.
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.
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1.21. "General Regulations" shall mean all laws, ordinances, resolutions, codes,
rules, regulations and official policies of City governing the development and permitted uses of
land, including, without limitation, the permitted use of land, the density or intensity of use,
subdivision requirements, the maximum height and size of proposed buildings, the provisions for
reservation or dedication of land for public purposes, and the design, improvement and
construction standards and specifications applicable to the development of the Property and
provisions relating to applicable fees, charges, assessments and levies. General Regulations do
not include any City ordinance, resolution, code, rule, regulation or official policy identified in or
governing the following ( "Governmental Exceptions"):
(a) The provisions of Titles 1, 3, 5, 6,
Newport Beach Municipal Code;
(b) The provision of Title 19
Code to the extent Landowner seeks approval from t
Single Time -Share Property including, but not li to,
Share Units located on the Single Time Sh " ert
contemplated, approved or entitled by this Agreement.,
(c) Property taxes and assessmen
of Section 2.5);
(d) The control
(e) }. ,Jk, exercise of
Th vision of,
and other municipals that generally
property in the City, and � - Y _
time of
of
in
7,9;:10, 11, 12, 13, 14, 15 of the
of the 1 601 zt Beach Municipal
to subdlvl portion of the
subdivision o ; y of the Time
dtich future su -ion is not
of Nui (subject to the provisions
f e1Y� domain;
;s for, water, sewer, refuse, police, fire
to all owners or lessees of commercial
h property is used that are related to the
the use of alcohol, and the nature and timing
(h) be provisions of Chapter 3.16 and 3.28 of the Newport Beach
Municipal Cody f all apply t6 all hotel rooms located at the Property and to the occupancy of
any Time -Share ;,that: (ls occupied by any person who is not a Time -Share Unit Purchaser
or a guest of the Ti Oire Unit Purchaser; and (2) any portion of a Time -Share Unit not
expressly sold, leased conveyed to a Time -Share Unit Purchaser.
1.22. "Governmental Reservations" Shall mean those actions that City may take
that may affect the Project or the operation of the Project, as follows:
(a) Enforcement of the specific provisions, limitations and restrictions
contained in the Project, Project Approvals, Development Plan and Project Conditions;
(b) Enforcement of the provisions and conditions of this Agreement;
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(c) Enforcement of, or pursuant to, Governmental Exceptions or
Governmental Reservations; and
(d) Enforcement of Existing General Regulations.
1.23. "Include" and all contexts and forms of the words "includes" and
"including" shall be interpreted to also state "but not limited to."
1.24. "Visitor Serving and Recreational Facilities Fee" Shall have the meaning
set forth in Section 4.2 of this Agreement.
1.25. "Mortgage" shall mean a mortgage, d'h£ trust, sale and leaseback
arrangement, or any other form of conveyance in which the :pert jai; � a part or interest in the
Property, is pledged as security and contracted for in goo ith and for f value.
1.26. "Mortgagee" Shall mean th holder of a beneficlatjii terest under a
Mortgage or an successor or assignee of the Mo„ "`',
1.27. "RgM�" or "Parties" Shall in City or Landowner or both, as
determined by the context.
1.28. "Project" Shall m existing an aed development of the
Property described generally in Recital_puisuattf -#A, and conslstet: nth the Project Approvals,
consistent with and subject to Project Conditions, escr ed in this Agreement. The
Project includes those improu" , ents existing on the Pro ' f the Effective Date.
1.29. o
''ect ` ,�-, ovals" Shat) mean all approvals, amendments, permits,
licenses, consents, 4#tpd priv es, and other attpns required or authorized to be approved,
issued or taken by City m ec 'th developtt of the Property, including but not limited
to the following discretio b'
No. ;
(b) (vlodific on Permit No. ;
(c)rcel Map No. ; and
Impact Report (State Clearinghouse No.
2006121052).
Project Approvals shall also include any Subsequent Approvals contemplated in
this Agreement that are necessary to implement this Agreement and all discretionary or
ministerial permits related to construction of the Project including grading permits, building
permits, and occupancy permits.
1.30. "Project Conditions" Shall mean all conditions to Landowner's right to
proceed with Development pursuant to the Project Approvals, including the provisions of this
Agreement, the mitigation measures identified in the EIR and adopted by the City Council,
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conditions to Project Approvals, Existing General Regulations, Governmental Exceptions and
Governmental Reservations. The Project Conditions are generally described in Exhibit C.
1.31. "Propert y" Is described in Exhibit A and depicted on Exhibit B.
1.32. "Single Site Time -Share Plan" Shall have the meaning set forth in
Business and Professions Code Section 11212(z)(1).
1.33. "Single Time -Share Property" Shall refer to parcel _ approved by
Parcel Map No. _ which is the location where Landowner plans t_, ° " ct the 88 time -share
units.
1.34. "Subsequent Approvals" Means all Pr ` t Ap �w, _ , s granted or issued by
the City subsequent to the Approval Date in connection wi ' _,elopm _ .=
OCthe Property.
1.35. "Term" Shall have the
1.36. "Time -Share Fee" Shall have
Agreement.
in Section 8
forth in SecWn 4.1 of this
1.37 "Time -Share Uni , . pans the specifies defined portion of the Single
Time -Share Property that is divided into' a intervals an�',ld leased or conveyed to a
Time Share Unit Purchaser.
1.38 "Time Share Unit" Putha sli� a person who has received a
right in perpetuity, for life; or.fO' term of year 'fo the rec ent exclusive use or occupancy of
d{
Time -Share Unit annly or on' _e other seaslal or periodic basis, for a fixed period of time
that has been or w '° ' otted the use o{
ill' -Wcilpancy periods into which the Project has
been divided. y�
Ime Use" Shall "mean a right to occupy a Single -Time Share
Property,. a Time nit Pitzgser, which right is neither coupled with a freehold interest,
nor qo y with an esta years v�ht'futare interest in a Single Time Share Property.
ILAO "Vest"R ntitlement" or "Entitlement" Refers to the development rights
granted Lan pursuant this Agreement and the Project Approvals that are subject to
Project Conditio - -_
2.
2.1. Development Program. This Agreement vests Landowner's right to
proceed with the development described in the Project Approvals, Development Plan and this
Agreement. Landowner also acknowledges and agrees that its right to proceed with the Vested
Entitlement is subject to the Project Condition. The Parties also expressly acknowledge and
agree that this Agreement does not vest Landowner with the right to subdivide the Single Time
Share Property (or portion thereof) including, but not limited to, any of the Time Share Units
located on the Single Time Share Property and that any proposal to subdivide the Single Time -
Share Property (or portions thereof) including, but not limited to, any of the Time Share Units
located on the Single Time Share Property would require an Amendment of this Agreement.
10/13/08 10138.2
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Landowner acknowledges that City grants no assurance that Landowner will receive necessary
permits or approvals from any other public agency with jurisdiction over the Project or that
Project Approvals will not be subject to and affected by legal or other challenges or procedures
initiated by third parties.
(a) Permitted Uses. The Property shall be used and developed only in
the manner provided in the Project Approvals, the Development Plan and this Agreement and
shall be subject to the Project Conditions. City acknowledges that, from time to time, Landowner
may seek and obtain, in accordance with applicable provisions of State and local law, minor
amendments to the Development Plan and the Project Approvals. The Planning Director of the
City ( "Planning Director ") shall determine, subject to appeal by Landowner to the Planning
Commission, whether a proposed amendment is a "minor atnendmexlt" for purposes of this
Agreement. A minor amendment is one that does not ally modify, alter or change a
material term of this Agreement and one that do ot" increase mss, noise or other
environmental impacts associated with Project Ap vals r the Deve ent Plan. City
acknowledges that the tentative parcel map may rmre corrections or amen dx -, s or to the
approval and recording of a final parcel map "tfi tative cel map may ended or
corrected provided that Landowner complies with the " c procedures set Vin
in Title 19
and this Agreement. City may impose standard conditi f approval on any subdivision or
resubdivision requested by Landown� d authorized b s Agreement, so long as the
condition(s) do not reduce the permitted = y or intensity, o tan)ially increase the cost of
the development, allowed in the Project Approvals and described " Development Plan.
(b) Permitted Deny of ,,D Landowner shall have the
vested right to develop tl consistent with the p ted density and level of intensity
authorized by the Prt Ap ' s, Developratent Plan and this Agreement subject to the
Project Conditions. shall n pose any condition on any Project Approval that reduces
the permitted density an l of sity allowed the discretionary Project Approvals.
um Viand Size of Structures. Landowner shall have
the veste` tight to d
Yil
the y with the maximum height and size of structures as set
forth a Development! and ct Approvals.
,.2. Compliatmce wfh Project Conditions. Landowner acknowledges that City
Council approval of the Prglt' Approvals, the Development Plan and this Agreement is subject
to compliance the Proet Conditions. The Project Conditions are, among other things,
designed to minim ''or eliminate any adverse impacts of the Project and protect and enhance
the environment. In cean instances, the Project Conditions exceed those that might otherwise
be appropriate under `inexus' and "rough proportionality" tests articulated by the courts. By
entering into this Agreement, Landowner agrees to be bound by, and waives any protest of, any
Project Conditions. Any Project Conditions imposed by the City after the Effective Date shall be
consistent with the Project Approvals, Development Plan and this Agreement.
2.3. Compliance with General Regulations. Landowner shall comply with the
Existing General Regulations. Except as otherwise specified in this Agreement, Landowner shall
not be obligated to comply with any Future General Regulations that are in conflict with the
Development Plan or this Agreement. Any Future General Regulation(s) that are inconsistent
with this Agreement and/or the Development Plan and which do not fall within the definition of
10/13/08 10138.2
H&O: #63355 vdm (2 v. 1)
Governmental Reservations or Governmental Exceptions shall not be applicable to the
development or use of the Property. With respect to Existing General Regulations that require
the payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be that in
effect on the Approval Date subject to any automatic increases or decreases mandated by the text
of the Existing General Regulation as of the Approval Date. Landowner shall, however, comply
with any Future General Regulation that does not impair or affect its ability to develop the
Property in accordance with the Development Plan or impact the development of the Property at
the cost rate, timing and sequencing that the Landowner deems appropriate. Landowner shall
also comply with all provisions of the Uniform Codes including, but nolt limited to, building, fire,
plumbing, mechanical, swimming pool, and electrical, whether adhpted: before or after the
Approval Date by the City, which are in effect at the time a lions for specific Project
Approvals are submitted. l'
2.4. No Conflicting Enactments. t to the ext t City reserves its
-=
discretion as expressly set forth in this Agreement, ding the term of this Agreement City shall
not apply to the Project any ordinance, policy, �, regulation, or other meaWe relating to
._
development of the Project that is enacted orb effecti fter the Appro*Ibate to the
extent it conflicts with this Agreement. This Section `'r e 'ct City's ability to enact an
ordinance, policy, rule, regulation, or other measure = cable to the Project pursuant to
California Government Code section 6W6. In Pardee C ction Co. v. City of Camarillo
(1984) 37 Ca1.3d 465, the California Su "" Court held tha nstruction company was not
exempt from a City's growth control ordin lc' 1 a though the d construction company
had entered into a consent judgment (tantaamaunt to a: un California law) establishing
the company's vested rights to develop its property con i , -ri ith the zoning. The California
Supreme Court reached 18 because the, sent jud 66nt failed to address the timing of
development. The P s inte rt avoid the r'ult of the Pardee case by acknowledging and
providing in this t that downer shalave the vested right to develop the Property
at the rate, timing, and enc' „w at Landow ` °`deems appropriate within the exercise of
Landowner's sokc subiectiMWA `provided that such development occurs in
City's
limitation
another me affecting su
of this Agre building
apply to the P to tl
Landowner's veste
of this Agreementt .
d the De ment Regulations, notwithstanding adoption by
/e t contrary after the Approval Date. No City moratorium or
ng to e, timing, or sequencing of the development of the
0, or part of the Project and whether enacted by initiative or
vision maps, use permits, modifications, EIR certification, terms
rmits, occupancy certificates, or other entitlement to use, shall
extent such moratorium or other similar limitation restricts
this Agreement or otherwise conflicts with the express provisions
2.5. Public Health and Safety/Uniform Codes. This Agreement shall not
prevent the City from adopting, and applying to the Project, Future General Regulations,
including Uniform Codes (as referred to above), that are based on recommendations of a multi-
state professional organization relating to the specifications for the constructions of
improvements (`Building Codes ") and become applicable throughout the City. This Agreement
shall not prevent the City from adopting, and applying to the Project, conditions inconsistent
with the Development Plan or Project Approvals, when the conditions are adopted by the City
Council after a noticed public hearing and pursuant to a determination by the City Council that
10/13108 10138.2
H &O: #63355 vdm (2 v. 1) 10
the conditions are necessary to abate a public nuisance (Nuisance). In no event shall the City
impose any condition pursuant to a determination of Nuisance unless the Landowner has been
given notice of, and the right to present evidence at, a public hearing. Any determination of
Nuisance, and the rational relationship between the Nuisance and the conditions imposed, must
be supported by substantial evidence in the record of the hearing.
2.6. Police Power. In all respects not provided for in this Agreement, City
shall retain full rights to exercise its police power to regulate the development of the Property.
Any uses or developments requiring a use permit, tentative tract or _ parcel map, modification,
EIR certification, or other discretionary permit or approval in at e with the Existing
Development Regulations or Future Development Regulations s ' equire a permit or approval
pursuant to this Agreement, and, notwithstanding any oth n set forth herein, this
Agreement is not intended to vest Landowner's right to the uance ch permit or approval
nor to restrict City's exercise of discretion with respect „thereto, pr d that pursuant to
Government Code section 65865.2, "such conditions„ifenn 'restrictions, equirements for
subsequent discretionary actions shall not prevent doelopment „aof the land for eland to the
density or intensity of development” set forth in this' en' of by way of lion of the
foregoing, it is specifically understood that City re _ ,es,} e` lNght to amend, pursuant to
procedures provided b law and this Agreement Cit .._. _W'Q -,
p p y gre Y'= : , rules, regulations, and policies
applicable to the Property as to which downer's right" not expressly vested and such
amendment or amendments shall be bin Lthe Property t to; the extent that the same
conflict with the express provisions of this
2.7. Public Works Improv _ ents " tent Landowner constructs or
installs public works or fl" " he City st —ds in eff6^r such public works or facilities
at the time of City's o-u -ance bit,a permit, lic se, or other authorization for construction or
installation of same s" ?,apply.
2.8. Ov h " 5tath Laws and Regulations. Federal and state
laws and r at override Landow '.S "vested rights set forth in this Agreement shall
apply to, Prope er any City ordinances, resolutions, regulations, and official
polic' t are necess enablto comply with the overriding federal and state laws
and ns, provided
(a) downer does not waive its right to challenge or contest the
validity of any ederal, #te, or local laws, regulations, or official policies; and
-P Upon the discovery of a federal or state law or regulation (or City
ordinance, resolution egulation, or official policy undertaken pursuant to those laws and
regulations), that prevents or precludes compliance with any provision of this Agreement, City or
Landowner shall provide the other Party with written notice of the state or federal law or
regulation, provide a copy of the law or regulation, and a written statement of conflict(s) with the
provisions of this Agreement. Promptly thereafter City and Landowner shall meet and confer in
good faith in a reasonable attempt to determine whether a modification or suspension of this
Agreement, in whole or in part, is necessary to comply with such federal or state law or
regulation. In such negotiations, City and Landowner agree to preserve the terms of this
Agreement and the rights of Landowner as derived from this Agreement to the maximum
feasible extent while resolving the conflict. City agrees to cooperate with Landowner at no cost
10/13/08 10138.2
H&o: #63355 vdm (2 v. 1) l 1
to City in resolving the conflict in a manner which minimizes any financial impact of the conflict
upon Landowner. City also agrees to process in a prompt manner Landowner's proposed
changes to the Project and any of the Development Regulations as may be necessary to comply
with such federal or state law; provided, however, that the approval of such changes by City shall
be subject to the discretion of City, consistent with this Agreement.
2.9. Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided, iat they are adopted and
applied City -wide or to all other properties similarly situated in City:" _
3. Benefits to Owner.
3.1. Right to Develop. Except to the
expressly set forth in this Agreement, during the term of
vested right to develop, and receive building and * --CCU
Property to the full extent permitted by this er
Development Plan, subject to the Project Conditions
the Property that complies and is consistent with the PrOJO
unless Landowner gives its written consent to the action
pursuant to this Agreement. Where a '' _ le, Landc
Landowner's sole and absolute
requirement (whether in the form of a fee, lac,
or any other type of exaction) on the ProjeciiA
Existing General Regu ' �,:,Govemmentf
However, City may i e or'hi " ase a condi
(as opposed to p by St or Federal
duration necessary to ct wi tate or Fe
Agreement, the ordinance s
Project
not
as
City iiooes its discretion as
ement Laadawner shall have a
icy permits for ca` ction on the
't a Project Ap 1s and the
take action, .with respect to
roval and the Development Plan
is permitted to take the action
1 refuse to grant consent in
mpo crease any condition or
for de anon or reservation of and,
permitted by this Agreement,
or Governmental Exceptions.
or requirement when such action is required
and then only to the minimum extent and
law. Except as otherwise provided by this
i policies governing the permitted use and
>cribed in the Project Approvals and the
Plan. apprties` __ $owledge that the vested rights described in this Section
:andoZ _ a v" t to develop the following improvements on the
.,.
3 described a Proj Approvals and the Development Plan and subject to the
(a) _'Construct 88 time -share units within seven building on the Single
Time -Share Prop be governed by a Single Site Time -Share Plan and which will allow the
Landowner to sell, le nor otherwise convey a Time -Share Use interests in the Single Time -
Share Property ( provided that the total number of time share units and hotel rooms does not
exceed a combined total of 479 time share units/ hotel rooms);
(b) Construct a new 800 -seat ballroom facility;
(c) Construct a new 10,072 square -foot spa and fitness center,
including a new outdoor pool facility;
(d) Construct a new housekeeping and engineering building; and
10/13/08 10138.2
H &O: #63355 vdm (2 v. 1) 12
(e) Construct a new two -level parking garage.
3.2. Benefits to Landowner. Landowner has expended and will continue to
expend substantial amounts of time and money on the planning of the Project and construction of
infrastructure for and in conjunction with the Project. Landowner represents and City
acknowledges that Landowner would not make these expenditures without this Agreement, and
that Landowner makes these expenditures in reliance upon this Agreement. A benefit to
Landowner under this Agreement is the assurance that Landowner will preserve the right to
develop the Property in accordance with the terms of this Agreement. City acknowledges that
Landowner will be investing money and planning efforts in the Project in reliance on City's
covenants and representations in this Agreement. City agrees that-Landowner may reasonably
and justifiably rely on City's covenants and representations to iWs, Agreement and on the
enforceability of this Agreement.
3.3. Reservations or Dedicatic
Project Approvals, Project Conditions, Develof
reservations of all or a portion of the Property
with the application or issuance of any Project,
use, or operation of the Property.
3.4. No Additional T'
Landowner has paid all required fair shar1
Traffic Contribution Ordinance. City shall vh
or improvement relative to, or as a condition
this Agreement, the Proje opals or Prc
3.5.
the right to develop"th
in the exercise of its
predict the
control i ando
in the manner and
demand,
[."Except as maybe provided in the
or this Agreement, iwdedibcations or
xlun of Landowne ij i'oonjunction
xt ,# .,. � development, construction,
onditions. Under CIOSA,
aid under the Fair Share
ated fee, charge, dedication,
Project except as provided in
mpletion of Project. Landowner shall have
the time that Landowner deems appropriate
rties acknowledge that Landowner cannot
because of numerous factors not within the
economic conditions, interest rates and
(a) ti4xprovement Security. As a condition of approving a final
subdivision map' fu resubdivision for all or a portion of the Property as authorized by
this Agreement, the ay require the furnishing of appropriate and reasonable improvement
agreements and securi pursuant to the Municipal Code and the Subdivision Map Act. Nothing
in this Agreement shall be construed as altering or relieving Landowner of any obligation
imposed pursuant to the Municipal Code or the Subdivision Map Act. The improvement
requirements, exactions or other conditions of approval of a subdivision map, parcel map or lot
line adjustment shall be consistent with this Agreement but City may impose standard conditions
of approval generally applicable to similar projects subject to the provisions Section 2.1(b).
(b) Expiration. Any current or fixture tentative maps for resubdivision
of the Property shall expire concurrently with the termination of this Agreement or after the
maximum period for the expiration of tentative maps authorized by Government Code Section
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H&O: #63355 vdm (2 v. 1) 13
66452.6, whichever is later. Should the time periods authorized by Government Code Section
66452.6 be lengthened after the execution of this Agreement, Landowner shall be entitled to
further extensions of any tentative subdivision map applicable to the Property, to the maximum
extent authorized by law.
(c) Adjustments. The Parties acknowledge that lot line adjustments,
or similar modifications may be necessary to develop the Project and are contemplated by this
Agreement. These modifications or adjustments shall be approved provided they are in
substantial conformance with the Development Plan and the Project A vals.
(d) Time -Share Units. The Parties wledge and agree that the
subdivision of the Single Time -Share Property (or any portion, cluding, but not limited,
any of the Time Share Units located on the Single Time Sire P is not contemplated,
authorized or entitled by this Agreement and would require- anlnendm :pthis Agreement.
„.a
3.7.
(a) Processing of Permits. A>
benefiting Landowner, the City shall promptly accept 1
approve, permit applications for the development and use
conformance with the Project
this Agreement.
(b)
Landowner all necessar
request, provided that „�
Regulations and are,j
and this Agreement:` Ji
issued
Plan,
ial term of th'is Agreement
sing/review, and expeditiously
Property that are in substantial
sting General Regulations, and
of steri Pft A& ovals. City shall issue to
ling, oc '�y, and "W er permits and approvals upon
are sub a ed in accordance with the Existing General
nformance *th the Project Approvals, Development Plan
i ?, pprovals. Any permit, license or approval
be vesied and deemed a Project Approval when granted.
n a43.8. Fu A ro The future approval or issuance of any Project
Appo� , is
determin ' the Planning Director to be a minor amendment as provided in
Section 2 1 1 not requi n amendment of this Agreement
9
4.1. Me-Share Development. For the vested right to construct the 88 Time -
Share Units on the ShWe Time -Share Property, which vested right is subject to the terms and
conditions contained in this Agreement and the Project Conditions, Landowner shall pay Three
Million Dollars ($3,000,000) ( "Time -Share Fee') to the City. The Time -Share Fee shall be paid
to the City as follows:
$1.5 million at the time the First Time -Share Building Permit is issued by
City or at the time the final parcel map is recorded, whichever is sooner.
10/13/08 10138.2
H &O: #63355 vdw (2 v. 1) 14
$1.5 million at the time the First Time -Share Building Permit is issued by
City.
4.2. Beginning two years after the Effective Date of this Agreement and every
year thereafter for the Term of this Agreement or until the Time -Share Fee is paid in full, the
amount of the Time -Share Fee shall be adjusted in accordance with Section 4.4. Visitor Servin¢
and Recreational Facilities — Marina Park Marina. Landowner shall pay to City the sum of Two
Million Dollars ($2,000,000) at the time the First Time -Share Building Permit is issued by City
( "Visitor Serving and Recreational Facilities Fee "). The Visitor Sery and Recreational Fee
shall be used by City for improvements that provide visitor servft oik recreational facilities
either at Marina Park Marina or at any other site designated bys in City's sole discretion.
The Visitor Serving and Recreational Facilities Fee may be uspdbyi1Wto provide public access
to Newport Bay, public parking, picnic areas, playgrounif equiprnd basketball and tennis
courts, concessions, recreational programs or any o , ' ;; nsitor serve recreational use.
Should the California Coastal Commission requir itigafion in the NI, , of a monetary
contribution to support the provision of visitor -
condition of approval of the coastal deveh
contributions that are expressly allocated to Marina
applied by City to off -set and provide a credit a
Facilities Fee. Because the specific impicements
this time, City shall have the responsibil°l
required by state or federal law, and to imp
have the responsibility to obtain any and all
required for construction, o gration and m
Facilities. Beginning after the
thereafter for the T of this reemel
Facilities Fee is p ' 1, the ount of the
shall be adjusted with Se -
the City's al -zone as a
the Project, all said monetary
w- visitor - serving uses shall be
Serving and Recreational
I by City are not known at
duct all app d_'ate environmental review as
identified '"tion measures. City shall
al pe s and approvals that may be
e
61f 66: 1 Serving and Recreational
ve Date bf this Agreement and every year
until the Visitor Serving and Recreational
pitgr Serving and Recreational Facilities Fee
-Sit ter On a rovements. City and the Landowner have
agreed U,ilkwater qua �Jp3pro is beyond those required for the Project's Water Quality
M ent Plan wo g of b `to the City, its residents and visitors to the City.
Landowne�dtas a eed �I
gr to �h�:ko the My the sum of One Million Dollars ($1,000,000) for off-
site water g*y improvem ( "Off -Site Water Quality Fee "). This sum shall be paid at the
time the First Tim, Share Being Permit is issued by City or at the time the final parcel map is
recorded, which ei r_ s soon) The City shall use the Off -Site Water Quality Fee to pay for
water quality impro' " _ -to be selected by the City in the City's sole discretion... . Because
the specific improvems that will be selected by the City are not known at this time, the City
shall have the responsibility to conduct all appropriate environmental review as required by state
or federal law, and to implement any identified mitigation measures. The City shall have the
responsibility to obtain any and all state and federal permits and approvals that may be required
in order to implement the Ofd Site Water Quality improvements, including but not limited to
coastal development permits and Clean Water Act permits that may be required for construction,
operation and maintenance of the water quality improvements. Beginning two years after the
Effective Date of this Agreement and every year thereafter for the Term of this Agreement and
until the Off -Site Water Quality Fee is paid in full, the amount of the Off -Site Water Quality Fee
shall be adjusted in accordance with Section 4.4.
10/13/08 10138.2
H&O: #63355 vdm (2 v. 1) 15
4.4. ENR Index. Beginning two years after the Effective Date of this
Agreement, and every year on the anniversary date of the Effective Date thereafter ( "generally
referred to herein as the "Adjustment Date "), any unpaid portion of each of the Time -Share Fee,
the Visitor Serving and Recreational Facilities Fee, and the Off -Site Water Quality Fee
(including prior year increases to the Time -Share Fee, the Visitor Serving and Recreational
Facilities Fee, and the Off -Site Water Quality Fee made pursuant to this Section which remain
unpaid) shall be increased in proportion to changes in the ENR Index. Such adjustment to the
Time -Share Fee, the Visitor Serving and Recreational Facilities Fee, and the Off -Site Water
Quality Fee shall be made on the Adjustment Date by multiplying the ,paid portion of each of
the Time -Share Fee, the Visitor Serving and Recreational Facilities -lee, �hd the Off -Site Water
Quality Fee (including prior year increases to the Time -Sham __ the Visitor Serving and
Recreational Facilities Fee, and the Off -Site Water Quality F mursuant to this Section
which remain unpaid) by a fraction, the numerator of which Wthe valu — e ENR Index for the
calendar month preceding the Adjustment Date and the `uator of is the value of the
ENR Index for the same calendar month one year p ' o the `Adjustment However, in no
event shall the amount of Time -Share Fee, the V' r Servi and Reerreatio, k1a cilities Fee,
and the Off -Site Water Quality Fee be reduceck e t of the Time `are Fee, the
Visitor Serving and Recreational Facilities Fee, and t e' ater Quality' ee (including
prior year increases to the Time -Share Fee, the Visitor and Recreational Facilities Fee,
and the Off -Site Water Quality Fee madOVursuant to this S 0 which remain unpaid) in effect
immediately preceding such adjustment. _ < „
4.5.
this Agreement, the
Fee, the Visitor Sen
set forth in Sections
shall retain the righ
charged by City in c
portion of the c o
whatever
4 2,
pment Fees Aibcssajff
JMjWt the Afterty. During the Term of
nent Fees asses blg ain operty shall be the Time -Share
eational Fac s Fee, an a Off -Site Water Quality Fee as
a4.3 and subje to increase as provided in Section 4.4. City
saselffie Developm F s or impose other monetary exactions
n a developmen oject for the purpose of defraying all or a
t tp;, elopment of the Project as it may adopt, and
T;1, adopt, tth{ "any development of the Property beyond the
on fated by this Agreement. The Parties acknowledge that for
the teiNW velopment Fees is limited to the Time -Share Fee, the
tFacAes Fee, and the Off -Site Water Quality Fee as set forth in
1
ubject to increase as provided in Section 4.4 and that all other
constitute Development Fees and that nothing in this Agreement
ed to release Landowner from the obligation to pay such fees,
increases, if and when they become due including, but not limited
(a) 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; and
(b) Fees and charges levied by any other public agency, utility,
district, or joint powers authority, regardless of whether City collects those fees and charges;
10/13/08 10138.2
H&O: #63355 Am (2 v. 1) 16
(c) Taxes and fees set forth in Chapter 3 of the Newport Beach
Municipal Code including, sales and use taxes, property development taxes under Section 3.12
of City's Municipal Code and transient occupancy taxes set forth in Chapter 3.16 and Visitor
Service Fee as set forth in Chapter 3.28 of the Newport Beach Municipal Code which shall apply
to all hotel rooms located at the Property and to the occupancy of any Time -Share Unit that: (1)
is occupied by any person who is not a Time -Share Unit Purchaser or a guest of the Time -Share
Unit Purchaser; and (2) any portion of a Time -Share Unit not expressly sold, leased or conveyed
to a Time -Share Unit Purchaser.
(d) Community facility district speciqg-WftW or special district
assessments or similar assessments, business license fees, bonds other security required for
public improvements, property taxes, sewer lateral connecti�ow f "' ater service connection
fees, and new water meter fees.
This Agreement does not authorize Landowner to transfer fees paid or fee
credits to any other property outside the Property t„ 1s the subject of this A nt.., Once the
Term of this Agreement has ended, Landowner dot receive any credit fo a planned
development of the Property based on the fees paid pu �° t to Ihig= Agreement. e-
4.6. Permitted Incre in Development P= Applicable to Prouerty. During
the Term of this Agreement, City shal increase the ametuat of the Time -Share Fee, the
Visitor Serving and Recreational Facilitie a Off -Site W4P --tQuality Fee except as set
forth in Sections 4.1, 4.2, 4.3 and 4.4. �
This Agre es not vest L wner ag` increases in any other fees other
than Development Fee t `';amble by Lanwner, including without limitation the Property
Development Tax rem to in subparagraph (c) it Section 4.5.
5. CIOSA.
affect the right" .. obligati of any third parties under the CIOSA.
5.2. " enance of CIOSA Pre -Paid Transnortation Fund. The Cancellation
referred to in Sectiori4a terminates the Parties' remaining rights and obligations under the
CIOSA, including ank obligation of City to repay Landowner for funds that Landowner provided
pursuant to the CIOSA. In connection therewith, Landowner agrees that City may retain any
balance of pre -paid transportation funds City may be holding as a result of unused CIOSA
mitigation. City may use any such remaining balance of prepaid transportation funds for
transportation improvements in accordance with the Protocol Agreement for the Circulation
Improvement and Open Space Agreement dated December 11, 1995, and the Protocol
Agreement Memorandum dated December 11, 2001.
10/13/08 10138.2
H &O: #63355 vdx (2 v. 1) 17
5.3. No Payments Due from City. The Parties acknowledge that City is not
required to make any reimbursement payments to Landowner and that no funding is otherwise
due from City to Landowner for improvements under CIOSA made by or at the direction of
Landowner including, but not limited to, improvements to Back Bay View Park, located at
Jamboree Road and Pacific Coast Highway.
6. Sales Tax.
6.1. Project Construction. Landowner will include in its general contractor
construction contract a provision that Landowner's general contractor and subcontractors, to the
extent allowed by applicable law, will obtain a Board of Equalization sales /use tax subpermit for
the jobsite for the Project at the Property and allocate all eligible s ` .and use tax payments for
individual contracts over $5 million to the City. Landowner will proms Landowner's general
contractor and subcontractors with the name and con ' ninformation of the City's Revenue
Manager and notice of the Revenue Manager's avail ty ta'meet and co nth them on the
implementation of the Board of Equalization sale a tax subpermit pro ' Iandowner
will further include a notice in its general contra truction:.contract that p beginning
a qualified construction project, the general con d i 6wractors are encouraged to
meet with the City's Revenue Manager to review the pro" o be followed with respect to sales
and use taxes. Landowner will further include a provision ` '' general contractor construction
contract that the general contractor or s0imirtractors will in writing that the person(s)
responsible for filing the tax return underilarl&O process of r6000ft the tax to the City and
will follow the guidelines set forth in the relevant s - ` .,of the Sales and Use Tax Regulations.
Landowner shall not be responsible for failt> of owner's general contractor or
subcontractors to follow ures set forth ii t this Sectip . Landowner, if readily available,
shall provide to the or ity designati representative the names, addresses, phone
numbers and contact of the eral contractor, and all subcontractors.
y
6.2. Dlr s., will follow the Direct Payment
Permit Proems estWilshed Rev �d Taxation Code and use the permit for all
""
qualifying individuai ases cess of $100,000 so that the local share of its sales /use tax
pavm is allocated to ` ' � itv as ht of sale.
Fixtur&Matefials and Equipment. It is understood and agreed that any
fixtures, mat ` and equip r t with a purchase total that exceeds $100,000 purchased directly
by Landowner anci.shipped ° Landowner's Newport Beach location may also be eligible for
direct allocation of ax to the City. Upon request of the City, Landowner will provide
City on a semi - annual basis with a list of purchases exceeding the $100,000 threshold during the
preceding six -month period, including the amount of the purchase and, if readily available, the
name and contact information for the vendor upon request by the City. The City agrees to
review the semi - annual list of purchases made by Landowner and advise Landowner of any
missed opportunities for direct allocation. Landowner agrees to file its Direct Payment Permit
with vendors identified by the City in an effort to improve the direct allocation of the local share
of sales /use tax payments in future periods.
7. Project as Private Undertaking. The development of the Project is a private
undertaking. Neither Party is acting as the agent of the other in any respect, and each Party is an
independent contracting entity with respect to the terms, covenants, and conditions contained in
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H&O: #63355 vdw (2 v. 1) 18
this Agreement. This Agreement forms no partnership, joint venture, or other association of any
kind. The only relationship between the Parties is that of a government entity regulating the
development of private property by the owner of the property.
8. Effective Date, The term of this Agreement ( "Term ") shall commence on
the Effective Date and shall continue thereafter until the earlier of the following: (i) July 1,
2013; or (ii) the date this Agreement is terminated pursuant to Sections 9 or 12 of this
Agreement.
9. Amendment or Cancellation of Agreement. This Agreeme may be amended or
canceled in whole or in part only by mutual written and execd consent of the Parties in
compliance with California Government Code Section 6586 and City of Newport Beach
Municipal Code Section 15.45.060 or by unilateral termination by city in the event of an
uncured default of Landowner pursuant to Section 11.1 p f s Agreement:. .
10. Enforcement. Unless amended 1
Agreement, or modified or suspended pursuant to
this Agreement is enforceable by either Party dE
specific plan, zoning, subdivision, or building
regulation adopted by City (including b City's e
the Property. s J
11. Periodic Review of Complia e. -1
once every 12 months from the Effective to
Sections 65865 and 65865 t.aa City of N
( "Annual Review "). At- s, Lando
with the terms and ions of Agreement:'i
good faith compliance a1a pity m*equire in the
reasonable notice to Lan m's o
Review shall # " atitute or-, w- ssert `'
provided in- ._ _'on 9 of this
ernment Code" "n 65869.5,
e:,in any applicle general or
other applicable ordinance or
urports to apply to any or all of
Pes shall review this Agreement at least
California Government Code
each _ 'cipal Code Section 15.45.080
l d onstrate its good faith compliance
Landowner also agrees to furnish evidence of
A_ onable exercise of its discretion and after
=landowner's failure to conduct an Annual
Party as a Default under this Agreement.
12.1. Defa> Landowner. Pursuant to California Government Code Section
65865.1, if etermines lowing a noticed public hearing and on the basis of substantial
evidence that caner ha of complied in good faith with Landowner's material obligations
pursuant to this en rCity shall by written notice to Landowner specify the manner in
which Landowner h'' ` to comply and state the steps Landowner must take to bring itself
into compliance. If Let6owner does not commence all steps reasonably necessary to bring itself
into compliance as required and diligently pursue steps to completion within thirty (30) days
after receipt of the written notice from City specifying the manner in which Landowner has
failed to comply, then Landowner shall be deemed to be in default under the terms of this
Agreement. City may then: (1) seek a modification of this Agreement, (2) terminate this
Agreement, or (3) seek any other available remedies as provided in this Agreement.
12.2. Default by City. If City has not complied with any of its obligations and
limitations under this Agreement, Landowner shall by written notice to City specify the manner
in which City has failed to comply and state the steps necessary for City to bring itself into
10/13/08 101382
H &O: #63355 vdm (2 v. 1) 19
compliance. If City does not commence all steps reasonably necessary to bring itself into
compliance as required and diligently pursue steps to completion within thirty (30) days after
receipt of the written notice from Landowner specifying the manner in which City has failed to
comply, then City shall be deemed to be in default under the terms of this Agreement.
Landowner may then exercise any or all of the following remedies (1) withhold payments that
might be otherwise due to City under this Agreement; and/or (2) seek a specific performance or
similar equitable remedy as provided in this Agreement.
12.3. Specific Performance and Damages
and scope of the Project and the potential impracticality or
to its natural condition once implementation of this
acknowledge that, except as provided in this Section 12.3
money damages and remedies at law generally are inadeq
appropriate for the enforcement of this Agreement.
the alternative, a writ of mandate, shall be the sole ancl
in the event of the default or alleged default by th( other,
entitled to damages against Landowner for Land' b1
4.1, 4.2, 4.3, 4.4, 15 or 16. The limitations on
not prevent City from enforcing Landowner's m
limited the monetary obligations of L er set forth it
Agreement. h
iedies., Ipue to the size, nature,
ssib* toring the Property
.rt has begun, the Parties
e ` 12.4 of this Agreement,
and ecific performance is
ly of sp erformance or, in
remedy a e to either Party
the exception City shall be
.of its obligation er Sections
wages in this Bement shall
ions hereunder including, but not
lions 4.1, 4.2, 4.3 and 4.4 of this
12.4. Limited Recov o e a1` s by ftgajling Party in Any Action.
In any judicial proceeding, arbitration, or m ` _ ti co , "Action') between the Parties
that seeks to enforce the of this Agr ent, the p ailing Party shall recover all of its
reasonable costs and expenses, " ess of wh er they would be recoverable under California
Code of Civil Pro l,ection 3.5 or Califo 'a Civil Code Section 1717 in the absence of
this Agreement. These rand enses include ''ert witness fees, attorneys' fees, and costs
of investigation and prepaidft� � on vfthe Action. The right to recover these costs
and expe due u utiati6 ai 1he Action, regardless of whether the Action is
eratlod ach Ply covenants to take reasonable actions and execute all
be nece <_ . to achieve the purposes and objectives of this Agreement.
14. Ma'eur xa Neither Party shall be deemed to be in default where failure or
delay in perform a Hof its obligations under this Agreement is caused, through no fault
of the Party whose p ance is prevented or delayed, by floods, earthquakes, other acts of
God, fires, wars, rio 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.
15. Indemnitv.Landowner agrees to indemnify, defend, and hold harmless City,
City's designee, and their respective elected and appointed councils, boards, commissions,
officers, agents, attorneys, and employees from all actions, suits, claims, liabilities, losses,
damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and
costs) that may arise, directly or indirectly, from the acts, omissions, or operations of Landowner
10/13/08 10138.2
H&O: #63355 vdoc (2 v. l) 20
or Landowner's agents, contractors, subcontractors, agents, or employees pursuant to this
Agreement. City shall have the right to select and retain counsel to defend any actions, and
Landowner shall pay the reasonable cost for this defense. The indemnity provisions in this
Section 15 shall survive termination of this Agreement.
16. Third Party Legal Challenge
If a third party brings a legal action challenging the validity or enforceability of any provision of
this Agreement or the Project approvals under the Development Regul 'ons ( "Third Party Legal
Challenge"), City shall defend the Third Party Legal Challeng 'aad ,,Landowner shall be
responsible for the reasonable legal expenses incurred by City in election with the challenge.
As long as Landowner is not in default under this Agreement, City X11 not allow any default or
judgment to be taken against it or compromise the defense° the a without Landowner's
prior written approval. Landowner shall also have a 'ght. to settle A Third Party Legal
Challenge at Landowner's own cost and expense, prwh ed fliat nothing in '` ,Agreement shall
authorize Landowner to settle the Third Party Legalfhallengq on terms that v ' co►stitute an
amendment or modification of this Agreemett s Ci approves the ndment or
modification consistent with applicable legal ts.. _ ry . reserves its..' l legislative
_.
discretion to make this approval.
17. Mortgagee Ri ts.
17.1. Encumbrances on Pftert y. The Parties a that this Agreement shall
not prevent or limit Landowner in any man!'Wl from et the Property, any part of the
Property, or any improv ,,on the Property with ani ' ortgage securing financing with
respect to the construct* . ent, use, or operation ofthe Project.
�4'!I
17.2. a ee tection. This Agreement shall be superior and senior to the
lien of any Mortgage. ch oir''this Agreement shall defeat, render invalid,
diminish, or' hen o "'e in good faith and for value. Any acquisition
or accep e o li any or interest in the Property or part of the Property by a
Mort ga a (whether Ao for" trustee's sale, deed in lieu of foreclosure, lease
t or otherwise)"i, _ I be s to all of the terms and conditions of this Agreement.
Any Mora who takes tide, to th roperty or any part of the Property shall be entitled to the
benefits an der this Ament.
17.e " ,, or ee Not Obligated. Notwithstanding the provisions of this Section
17.3, a Mortgagee !ltt have any obligation or duty under the terms of this Agreement to
perform the obligations of Landowner or other affirmative covenants of Landowner, or to
guarantee this performance except that:
(1) The Mortgagee shall have no right to develop the Property under the
Development Regulations without fully complying with the terms of this
Agreement; and
(2) To the extent that any covenant to be performed by Landowner is a
condition to the performance of a covenant by City, that performance shall
continue to be a condition precedent to City's performance.
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H&O: #63355 vdm (2 v. 1) 21
17.4. 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:
(1) The results of the periodic review of compliance specified in this
Agreement, and
(2) Any default by Landowner of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not obligation, to cure the
default within ten (10) days after receiving notice of monetary de d within thirty (30)
days after receiving notice of non-monetary defaults. If Mortga an o y remedy or cure the
default by obtaining possession of the Property, then Mortga have the right to seek to
obtain possession with diligence and continuity througo r ver m "- erwise, and to remedy
or cure the default within thirty (30) days after obtaJ i ossessi d ; * Except in case of
emergency or to protect the public health or safety, City may not exerc y of its judicial
remedies set forth in this Agreement until expirat*.,"of the thirty (30) day d. But in the
case of a default that cannot with diligence be,x6iiklied or cued within thirt days, the
Mortgagee shall have additional time as is reasonabliecessa�y'ta, remedy or a the default,
provided Mortgagee promptly commences to cure the : default within thirty (30) days and
diligently prosecutes the cure to compl 'on. Landowners :" jF of be released from performing
its obligations as set forth in this Agreem
,the event of a '' �3sure by a Mortgagee.
18. Assignment.
18.1. Right "¢ §sign. Land ` shall l a right to sell, transfer or assign
the Property in whole Oran �' r
p y p W any person, )partnership, oint venture, firm or corporation at
anytime during the of th is Bement; prodded, however, that any such sale, transfer or
assignment shall iticO : e assi'' ent and ass`" 'on of the rights, duties and obligations
arising under or from this be madn compliance with the following conditions
precedent:
part
No �rat3 fer or assignment of any right or interest under this
ss ma . �'gether with the sale, transfer or assignment of all or a
(b) _ oncurrent with any such sale, transfer or assignment, or within
fifteen (15) busi ays ereafter, Landowner shall notify City, in writing of such sale,
transfer or assignor shall provide City with an executed agreement by the purchaser,
transferee or assignee d providing therein that the purchaser, transferee or assignee expressly
and unconditionally assumes all the duties and obligations of Landowner under this Agreement
which apply to the Property in whole or in part being sold, transferred or assigned.
(c) The provisions of this Section 18.1 shall not apply to transfers by
Landowner of an interest in all or a portion of the Property to any subsidiary or affiliate entity of
Landowner.
18.2. Agreement Binding on Successors and Assigns. The burdens of this
Agreement are binding upon, and the benefits of this Agreement inure to, all successors in
10/13/08 10138.2
H&O: #63355 Am (2 v. l) 22
interest of the Parties to this Agreement, and constitute covenants that run with the Property. In
order to provide continued notice, the Parties will record this Agreement and any subsequent
amendments to it.
19. Estonnel Certificate. At any time, either Party may deliver written notice to the
other Party requesting that the Party certify in writing that, to the best of its knowledge:
(1) This Agreement is in full force and effect and is binding on the Party;
(2) This Agreement has not been amended or.,,the either orally or in
writing. If this Agreement has been am Par ty providing the
certification shall identify the amendm
(3) The requesting Party is not in
under this Agreement. If the i
must describe the nature and a
The requesting Party shall execute and return the ceitj
receipt from the requesting party. Any assignee of a N
referred to in Section 18. 1, and any Mortgagee, shall be
20. Further Actions and Instrdl F
reasonable assistance to the other Party to 4& e
this Agreement. Upon the request of a P, rt any
with acknowledgement or affidavit if reas
instruments and writings,anii an
=y actions
Agreement or to evil, or cons hate the
ce of its obligations
is in`' '. rt, the other Party
0 fifteen (15) Sys following
t and obligations hereunder, as
rely on the certificate.
In Party 7 perate with and provide
p> sister wi ' d necessary to implement hei 11 arty shall promptly execute,
equi`e d file or record the required
be re ` nably necessary to implement this
ons contemplated by this Agreement.
21. Notices. Aqy note- _; errand thaliall be required or permitted by law or any
provision of eement b- -ff the notice or demand will be served upon a
Party, it e, erson ` delivere the Party; deposited in the United States mail,
certAor�"' aurn receip ested, ostage prepaid; or delivered by a reliable courier service
that s a receipt s g daf µ time of delivery with courier charges prepaid. The
notid shall be aA&ssed afollows:
TO { lF City of Newport Beach
101 3300 Newport Boulevard
_ Post Office Box 1768
Newport Beach, CA 92663 -3884
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92663 -3884
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H &O: #63355 Am (2 v. 1) 23
TO LANDOWNER: JGKallins Newport Investments, LLC
15747 Woodruff Avenue
Bellflower, CA 90706
Attn:
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626 -1931
Attn: Richard P. Sims
With a copy to:
Either Party may change the address statim
manner provided in this Section 21, and r
address. Notice shall be deemed to be deli
three business days after d .,... ' the mail
22.
neuter
22.1.
22.2. - Is of 'I
ent in whi Urne is
Sunstone Jamboree,
c/o Sunstone Hot Mi� rs, Inc.
903 Calle Amarter, Suik,;1Q0
San Clement A ::92673
Attn: Le beiihrtment
19900 _ u: Suite 1050
Irvine, CA
Attn: Dennis WKNeil
21 b "to the other Party in the
ado es and submitted to the new
Rd'
f: (1) the date received or (2)
Th e ' 'gular includes the plural; the masculine and
`may" is permissive.
Time is of the essence regarding each provision
.3. Waiv ,, ;Failure by a Party to insist upon the strict performance of any of
the provisions of its Agreerlt by the other Party, and failure by a Party to exercise its rights
upon a default bpi,Nwoer
ther party, shall not constitute a waiver of that Parry's right to demand
strict compliance bParty in the future.
�
22.4. 'Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be identical and may be introduced in evidence or used for any
other purpose without any other counterpart, but all of which shall together constitute one and
the same agreement.
22.5. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, between the Parties
with respect to the subject matter addressed in this Agreement.
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H &O: #63355 volm (2 v. 1) 24
22.6. 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 shall receive any of the benefits of the Agreement
without the full performance of all of the obligations provided for under this Agreement.
Without limiting the generality of the foregoing, the Parties intend that Landowner shall not
receive any of the benefits of this Agreement if any of Landowner' bligations are rendered
void or unenforceable as the result of any third party litigation, and y mall be free to exercise
its legislative discretion to amend or repeal the developm ations applicable to the
Property and Landowner shall cooperate as required, despite ,¢ ent, should third party
litigation result in the nonperformance of Landowner's oblig "ins un s Agreement.
22.7. Construction. This E
negotiation and revision. Both City and L
represented by independent counsel througho
agree and acknowledge that the terms of this
account their respective purposes, terms, and
construed as a whole consistent with -1 fait
contract construction or interpretation s
Agreement in favor of or against either P
been
extensive
mwwner are sopnisticatea pmes wno were
t the negotiations. City and L "wrier each
Agreement, a iairw and reasonable, taking into
;onditions. This Agreement shall therefore be
meaning, a it �o principle or presumption of
used to constMolI a whole or any part of this
22.8. Constructive Notice AM Ac =� - eWery person who now or later
owns or acquires any rig s.0 or interest in part of throject or the Property is and shall
be conclusively de o have consented an = greed to every provision of this Agreement.
This Section 22.8 regardless of whether & instrument by which the person acquires the
interest references this A ent,
k1To Thnrty Berieau9ties. The only parties to this Agreement are City
and Lan _ m er. eement does not involve any third party beneficiaries, and it is not
inter d shall not b trued to-.b9 efit or be enforceable by any other person or entity.
� j Vdetvalidity A li ' le Lamb and Venue. This Agreement shall be construed and
enforced con ternal laws of the State of California. Any action at law or in
equity arisinement or brought by any Party for the purpose of enforcing,
construing, o of any provision of this Agreement shall be filed and tried
in the Superiunty of Orange, State of California, or the United States District
Court for the Central lstrict of California. The Parties waive all provisions of law providing for
the removal or change of venue to any other court.
22.11. Non - Liability of City Officers and Employees. No official, officer,
employee, agent, or representative of City shall be personally liable to Landowner or its
successors and assigns for any loss arising out of or connected with this Agreement or the
Development Regulations and no judgment or execution thereon entered in any action hereon
shall be personally enforced against any such official, officer, employee, agent, or representative
of City.
10%13/08 10138.2
H&O: #63355 v&c (2 v. 1) 25
22.12. Section Headings. All section headings and subheadings are inserted for
convenience.
22.13. Covenant Not To Sue. The parties to this Agreement, and each of them,
agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The
parties to this Agreement, and each of them, hereby covenant and agree that each of them will
not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other
proceeding against any other party to this Agreement, in law or in equity, or based on an
allegation, or assert in any such action, that this Agreement or any t ereof is void, invalid, or
unenforceable. 77 16
22.14. Eminent Domain. No provision of
limit or restrict the exercise by City of its power of eminent
22.15. No Brokers. City and Landownx
neither has employed any broker and/or finder to rare:
party agrees to indemnify and hold the other ff-and
liability, loss, cost, or expense (including court costiv
manner connected with a claim asserted by any indi,
finder's fee in connection with this A ement arising
party to pay any commission or finder's
shall be construed to
sent and w to the other that
interest in thi action. Each
ess from and ag
06
,. y and all
msonable attomey'.k "fees) in any
or entity for any commission or
agreements by the indemnifying
23. Authority to Execute. " p "executing t} s Agreement warrant and
represent that they have the authority to exec thi pri behalf of the entity for which
they are executing this A t. They wan•ari i hd represent that they have the
authority to bind thejesod _ Party to performance of its obligations under this
Agreement.
24. Recordahoti !i ', ngnt and amendment, modification, or cancellation
to it shall bear, m the ce of tii Recorder of the County of Orange, by City
Clerk wltltir'le Odd# wire California Government Code section 65868.5 and City of
Newoort-beach Munici de se6dmi 15.45.090.
[Signature page follows]
10/13/08 101382
H&O: #63355 vdw (2 v. 1) 26
IN WITNESS WHEREOF, the Parties have each executed this Agreement on the date first
written above.
"LANDOWNER"
JGKALLINS NEWPORT INVESTMENTS,
LLC
By:
Its:
By:
Its:
Its:
"CITY"
OF NEWPORT BEACH
Edward D. Selich, Mayor
0
LaVonne
APPROVED AS TO
Robin Clauson, City Attorney
10 /13 /08 10138.2
H&.O: #63355 Aw (2 v. 1) 27
STATE OF CALIFORNIA )
ss
COUNTY OF ORANGE )
On before me, a Notary Public, personally
appeared personally known to me who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) (is /are) ; scribed to the within
instrument, and acknowledged to me that (he /she/they) execut Mete in (his/her /their)
authorized capacity (ies), and that by (his/her /their) signature(s),eO a instrument the person(s),
or the entity upon behalf of which the person(s) acted, execut4 &I ent.
I certify under PENALTY OF PERJURY under the lam- of.the Sta that the foregoing
paragraph is true and correct. Win' -,
WITNESS my hand and official seal.�;E�aq#
Public
10/13/08 10138.2
H&O: #63355 Aw (2 v. 1) 28
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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H&O: #63355 vdm (2 v. 1) A -1
EXHIBIT B
MAP OF THE PROPERTY
10/13/08 10138.2
H&O: #63355 vdm (2 v. 1) B -1
Document comparison done by DeltaView on Monday. October 13.2008 5:07:48 PM